International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of
public international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international legal norms, that limit their freedom of action, in the absence of a world legislature. Other perspectives are policy oriented; they elaborate theoretical frameworks and instruments to criticize the existing rules and make suggestions on how to improve them. Some of these approaches are based on domestic
legal theory
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
, others are
interdisciplinary
Interdisciplinarity or interdisciplinary studies involves the combination of multiple academic disciplines into one activity (e.g., a research project). It draws knowledge from several other fields like sociology, anthropology, psychology, ec ...
, while others have been developed expressly to analyse international law.
Classical approaches to international law
Natural law
Many early international legal theorists were concerned with
axiom
An axiom, postulate, or assumption is a statement that is taken to be true, to serve as a premise or starting point for further reasoning and arguments. The word comes from the Ancient Greek word (), meaning 'that which is thought worthy or f ...
atic truths thought to be reposed in
natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
. 16th century natural law writer,
Francisco de Vitoria
Francisco de Vitoria ( – 12 August 1546; also known as Francisco de Victoria) was a Spanish Roman Catholic philosophy, philosopher, theology, theologian, and jurist of Renaissance Spain. He is the founder of the tradition in philosophy known ...
, a professor of
theology
Theology is the systematic study of the nature of the divine and, more broadly, of religious belief. It is taught as an academic discipline, typically in universities and seminaries. It occupies itself with the unique content of analyzing the ...
at the University of
Salamanca
Salamanca () is a city in western Spain and is the capital of the Province of Salamanca in the autonomous community of Castile and León. The city lies on several rolling hills by the Tormes River. Its Old City was declared a UNESCO World Heritag ...
, examined the questions of the
just war
The just war theory ( la, bellum iustum) is a doctrine, also referred to as a tradition, of military ethics which is studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure that a war is m ...
, the Spanish authority in the
Americas
The Americas, which are sometimes collectively called America, are a landmass comprising the totality of North and South America. The Americas make up most of the land in Earth's Western Hemisphere and comprise the New World.
Along with th ...
, and the rights of the Native American people.
Eclectic or Grotian approach
Hugo Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
, a
Dutch
Dutch commonly refers to:
* Something of, from, or related to the Netherlands
* Dutch people ()
* Dutch language ()
Dutch may also refer to:
Places
* Dutch, West Virginia, a community in the United States
* Pennsylvania Dutch Country
People E ...
theologian
Theology is the systematic study of the nature of the divine and, more broadly, of religious belief. It is taught as an academic discipline, typically in universities and seminaries. It occupies itself with the unique content of analyzing the ...
,
humanist
Humanism is a philosophical stance that emphasizes the individual and social potential and agency of human beings. It considers human beings the starting point for serious moral and philosophical inquiry.
The meaning of the term "humani ...
and
jurist
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
played a key role in the development of modern international law. In his ''
De jure Belli ac Pacis Libri Tres
''De iure belli ac pacis'' (English: ''On the Law of War and Peace'') is a 1625 book in Latin, written by Hugo Grotius and published in Paris, on the legal status of war. It is now regarded as a foundational work in international law. The work ...
'' ("Three Books on the Law of War and Peace") of 1625, and drawing from the
Bible
The Bible (from Koine Greek , , 'the books') is a collection of religious texts or scriptures that are held to be sacred in Christianity, Judaism, Samaritanism, and many other religions. The Bible is an anthologya compilation of texts of a ...
and from the
St. Augustine's just war
The just war theory ( la, bellum iustum) is a doctrine, also referred to as a tradition, of military ethics which is studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure that a war is m ...
theory, he argued that nations as well as persons ought to be governed by universal principle based on
morality
Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
and
divine justice
Divine law is any body of law that is perceived as deriving from a Transcendence (religion), transcendent source, such as the will of God or godsin contrast to man-made law or to secular law. According to Angelos Chaniotis and Rudolph F. Peters, di ...
. Drawing, though, from domestic
contract law
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
, he argued that relations among polities ought to be governed by the law of peoples, the ''
jus gentium
The '' ius gentium'' or ''jus gentium'' (Latin for "law of nations") is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ''ius gentium'' is not a body of statute law ...
'', established by the consent of the community of nations on the basis of the principle of ''
pacta sunt servanda
''Pacta sunt servanda'', Latin for "agreements must be kept", is a brocard and a fundamental principle of law. According to Hans Wehberg, a professor of international law, "few rules for the ordering of Society have such a deep moral and religi ...
'', that is, on the basis of the observance of commitments. On his part,
Christian von Wolff
Christian Wolff (less correctly Wolf, ; also known as Wolfius; ennobled as Christian Freiherr von Wolff in 1745; 24 January 1679 – 9 April 1754) was a German philosopher. Wolff is characterized as the most eminent German philosopher between Le ...
, contended the international community should be a world superstate (''civitas maxima''), having authority over the component member states.
Emmerich de Vattel
Emer (Emmerich) de Vattel ( 25 April 171428 December 1767) was an international lawyer. He was born in Couvet in the Principality of Neuchâtel (now a canton part of Switzerland but part of Prussia at the time) in 1714 and died in 1767. He was l ...
rejected this view and argued instead for the equality of states as articulated by 18th century natural law. In ''Le droit des gens'', Vattel suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other.
During the 17th century, the basic tenets of the Grotian or
eclectic
Eclectic may refer to:
Music
* ''Eclectic'' (Eric Johnson and Mike Stern album), 2014
* ''Eclectic'' (Big Country album), 1996
* Eclectic Method, name of an audio-visual remix act
* Eclecticism in music, the conscious use of styles alien to th ...
school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648
Peace of Westphalia
The Peace of Westphalia (german: Westfälischer Friede, ) is the collective name for two peace treaties signed in October 1648 in the Westphalian cities of Osnabrück and Münster. They ended the Thirty Years' War (1618–1648) and brought pea ...
.
Legal positivism
The early
positivist school emphasized the importance of custom and treaties as sources of international law. Early positivist scholar
Alberico Gentili
Alberico Gentili (14 January 155219 June 1608) was an Italian-English jurist, a tutor of Queen Elizabeth I, and a standing advocate to the Spanish Embassy in London, who served as the Regius professor of civil law at the University of Oxford ...
used historical examples to posit that positive law (''jus voluntarium'') was determined by general consent. Another positivist scholar,
Richard Zouche
Richard Zouch (1 March 1661) was an English judge and a member of parliament from 1621 to 1624. He was elected Member of Parliament for Hythe in 1621 and later became principal of St. Alban Hall, Oxford. During the Civil War he was a Royalist a ...
, published the first manual of international law in 1650.
Legal positivism became the dominant legal theory of 18th century and found its way into international legal philosophy. At the time,
Cornelius van Bynkershoek
Cornelis van Bijnkershoek (a.k.a. ''Cornelius van Bynkershoek'') (29 May 1673, in Middelburg – 16 April 1743, in The Hague) was a Dutch jurist and legal theorist who was educated at the University of Franeker. After two years study, he began to ...
asserted that the bases of international law were customs and treaties commonly consented to by various states.
John Jacob Moser emphasized the importance of state practice in international law.
Georg Friedrich von Martens
Georg Friedrich von MartensGeorg Friedrich von Martens should not be confused with F. F. Martens (1845–1909) a Russian diplomat and who was also an international lawyer, whose full name is sometimes given as Friedrich Fromhold von Martens (22 ...
, published the first systematic manual on positive international law, ''Precis du droit des gens moderne de l'Europe''. During the 19th century, positivist legal theory became even more dominant due to
nationalism
Nationalism is an idea and movement that holds that the nation should be congruent with the State (polity), state. As a movement, nationalism tends to promote the interests of a particular nation (as in a in-group and out-group, group of peo ...
and the
Hegelian
Georg Wilhelm Friedrich Hegel (; ; 27 August 1770 – 14 November 1831) was a German philosopher. He is one of the most important figures in German idealism and one of the founding figures of modern Western philosophy. His influence extends a ...
philosophy. International
Commercial law
Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a branc ...
became a branch of domestic law:
private international law
Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad t ...
, separate from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring
rationality
Rationality is the quality of being guided by or based on reasons. In this regard, a person acts rationally if they have a good reason for what they do or a belief is rational if it is based on strong evidence. This quality can apply to an abil ...
over
morality
Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
and
ethic
Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, along with aesthetics, concerns ma ...
s. The 1815
Congress of Vienna
The Congress of Vienna (, ) of 1814–1815 was a series of international diplomatic meetings to discuss and agree upon a possible new layout of the European political and constitutional order after the downfall of the French Emperor Napoleon B ...
marked the formal recognition of the political and international legal system based on the conditions of Europe.
Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "
objective
Objective may refer to:
* Objective (optics), an element in a camera or microscope
* ''The Objective'', a 2008 science fiction horror film
* Objective pronoun, a personal pronoun that is used as a grammatical object
* Objective Productions, a Brit ...
" reality that must be distinguished from law "as it should be." Classic positivism demands rigorous tests for
legal
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
validity
Validity or Valid may refer to:
Science/mathematics/statistics:
* Validity (logic), a property of a logical argument
* Scientific:
** Internal validity, the validity of causal inferences within scientific studies, usually based on experiments
** ...
. Extralegal arguments, i.e., arguments that have no textual, systemic or historical basis on the law, are deemed irrelevant to legal analysis. There is only hard law, no
soft law
The term ''soft law'' refers to quasi-legal instruments (like recommendations or guidelines) which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law. Soft law is often contras ...
. Criticisms of positivist international legal theory include its rigidity, its focus on state consent, without allowing for interpretation, and the fact that it does not allow moral judgements regarding a State's conduct as long as it follows international norms.
International relations – international law approaches
Legal scholars have drawn from the four main schools of thought in the areas of
political science
Political science is the scientific study of politics. It is a social science dealing with systems of governance and power, and the analysis of political activities, political thought, political behavior, and associated constitutions and la ...
and
international relations
International relations (IR), sometimes referred to as international studies and international affairs, is the scientific study of interactions between sovereign states. In a broader sense, it concerns all activities between states—such as ...
:
realism
Realism, Realistic, or Realists may refer to:
In the arts
*Realism (arts), the general attempt to depict subjects truthfully in different forms of the arts
Arts movements related to realism include:
*Classical Realism
*Literary realism, a move ...
,
liberalism
Liberalism is a political and moral philosophy based on the rights of the individual, liberty, consent of the governed, political equality and equality before the law."political rationalism, hostility to autocracy, cultural distaste for c ...
,
institutionalism Institutionalism may refer to:
* Institutional theory, an approach to the study of politics that focuses on formal institutions of government
* New institutionalism, a social theory that focuses on developing a sociological view of institutions, the ...
, and
constructivism
Constructivism may refer to:
Art and architecture
* Constructivism (art), an early 20th-century artistic movement that extols art as a practice for social purposes
* Constructivist architecture, an architectural movement in Russia in the 1920s a ...
to examine, through an
interdisciplinary
Interdisciplinarity or interdisciplinary studies involves the combination of multiple academic disciplines into one activity (e.g., a research project). It draws knowledge from several other fields like sociology, anthropology, psychology, ec ...
approach, the content of legal rules and institutions, to explain why and how legal institutions came to be and why they are effective. These methods have led some scholars to reconceptualize international law in general.
Realism
Realism
Realism, Realistic, or Realists may refer to:
In the arts
*Realism (arts), the general attempt to depict subjects truthfully in different forms of the arts
Arts movements related to realism include:
*Classical Realism
*Literary realism, a move ...
contends that, in an anarchic international system, states main objective is for survival that obligates them to maximize their relative power in order to preserve their territory and existence. Since international cooperation is possible only inasmuch as it responds to the states' self-interest in maximizing their power and prospects for survival, states do not pursue cooperation on the basis of normative commitments. According to Realist legal scholars, states adopt only international legal norms that either enhance their power, formalize the subordination of weaker states, or that they intend to violate deliberately to their own advantage. International Law may thus address only peripheral matters that do not impact the states´ power or autonomy. Consequently, for realists, international law is a "tenuous net of breakable obligations"
Within the Realist approach, some scholars have proposed an "enforcement theory" according to which international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance, and institutionalize collective procedures for punishing violations, thereby enhancing the
deterrent and coercive effects of a stable
balance of power." Thus, the role of
reciprocity and
sanctions is underlined. Morrow, for instance, notes that:
Liberalism
Based on the
Liberal international relations theory
Liberalism is a school of thought within international relations theory which revolves around three interrelated principles:
* Rejection of power politics as the only possible outcome of international relations; it questions security/warfare pr ...
, some scholars argue that the states' stance towards international law is determined by their domestic politics and, in particular, by the aggregation of the preferences of key domestic individuals and groups toward the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
. Thus,
democratic states, having a
representative government
Representative democracy, also known as indirect democracy, is a types of democracy, type of democracy where elected people Representation (politics), represent a group of people, in contrast to direct democracy. Nearly all modern liberal democr ...
, are more likely than non-democratic states to accept the legal regulation of both domestic and international politics, and more likely to accept and observe international law. Furthermore, democratic societies are linked by a
complex net of interstate, transnational and transgovernmental relations so that both their foreign policy bureaucracies and their
civil societies are interested in promoting and strengthening transnational cooperation through the creation and observance of international legal norms. Hence, the adoption of and the compliance with international legal norms among democratic states should be easier and more peaceful than the observance of international law among non-democratic states. In this regard,
Slaughter notes that:
Rational choice and game theory
This approach to law applies
theories
A theory is a rational type of abstract thinking about a phenomenon, or the results of such thinking. The process of contemplative and rational thinking is often associated with such processes as observational study or research. Theories may be s ...
of
economics
Economics () is the social science that studies the Production (economics), production, distribution (economics), distribution, and Consumption (economics), consumption of goods and services.
Economics focuses on the behaviour and intera ...
to identify the legal implications of maximizing behavior inside and outside of markets. Economics is the study of rational choice under limited conditions. Rational choice is the assumption that individual actors seek to maximize their preferences.
Most of the economic theory employed here is
neoclassical traditional economics. Economic techniques include price theory, which evaluates strategic interaction between actors. Transaction cost economics, which incorporates cost of identifying actors, negotiating, and costs of enforcing agreements into price theory.
Game Theory
Game theory is the study of mathematical models of strategic interactions among rational agents. Myerson, Roger B. (1991). ''Game Theory: Analysis of Conflict,'' Harvard University Press, p.&nbs1 Chapter-preview links, ppvii–xi It has appli ...
can demonstrate how actors with maximizing behavior might fail to take action increase join gain. Public choice applies economic tools to problems outside of markets.
These tools are used to describe and evaluate law. Using these tools, laws are tested for economic efficiency. Economic theories are also used to propose changes in the law. This approach urges the adoption of laws that maximize wealth.
Potential application of this approach would begin with a text-based interpretation. A secondary concern is whether or not an actual "market" context is functioning well. Thirdly, ways to improve the imperfect market are proposed.
This approach could be used to analyze general legal questions, because this approach provides highly specified rules and provides the rationale for using them.
This approach relies on assumptions that
perfect competition
In economics, specifically general equilibrium theory, a perfect market, also known as an atomistic market, is defined by several idealizing conditions, collectively called perfect competition, or atomistic competition. In Economic model, theoret ...
exists, and that individuals will behave to maximize their preferences. The empirical presence of these conditions is often difficult to determine.
International legal process
The classic International Legal Process is the method of studying how international law is practically applied to, and functions within international policy, as well as the study of how international law can be improved. "It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy".
[O'Connell (1999), 334.] ILP was developed in response to the "
realists from the discipline of international relations", who realized with the beginning of the
Cold War
The Cold War is a term commonly used to refer to a period of geopolitical tension between the United States and the Soviet Union and their respective allies, the Western Bloc and the Eastern Bloc. The term '' cold war'' is used because the ...
how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeld, in which the American legal process method was adapted to create an international legal process. ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law.
ILP also measures the extent to which individuals are held accountable for abuses in international conflicts.
[O'Connell (1999), 337.] While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device.
Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP.
The New International Legal Process (NLP) incorporates both law as a process and as the values of each society respectively. Unlike the American Legal System, it considers normative values other than democracy, such as "…
feminism
Feminism is a range of socio-political movements and ideologies that aim to define and establish the political, economic, personal, and social equality of the sexes. Feminism incorporates the position that society prioritizes the male po ...
,
republicanism
Republicanism is a political ideology centered on citizenship in a state organized as a republic. Historically, it emphasises the idea of self-rule and ranges from the rule of a representative minority or oligarchy to popular sovereignty. It ...
, law and economics,
liberalism
Liberalism is a political and moral philosophy based on the rights of the individual, liberty, consent of the governed, political equality and equality before the law."political rationalism, hostility to autocracy, cultural distaste for c ...
as well as human rights, peace and protection to the environment." The NLP is unique in its flexibility in adapting to the evolution of values. This component of the method is important in order to resolve the changing of legal standards over time. The NLP
shows its true departure from the ILP by addressing what happens in the situation of conflict, as well as what should be happening.
Policy oriented perspectives
New Haven School
The New Haven School is a policy-oriented perspective on international law pioneered by
Myres S. McDougal
Myres Smith McDougal (November 23, 1906 – May 7, 1998) was a scholar of international law and Sterling Professor of International Law at the Yale Law School, where he taught for fifty years. He also taught at New York Law School. He was an infl ...
,
Harold D. Lasswell, and
W. Michael Reisman. Its intellectual antecedents lie in sociological
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
of
Roscoe Pound
Nathan Roscoe Pound (October 27, 1870 – June 30, 1964) was an American legal scholar and educator. He served as Dean of the University of Nebraska College of Law from 1903 to 1911 and Dean of Harvard Law School from 1916 to 1936. He was a membe ...
and the reformist ambitions of the
American Legal Realists. From the standpoint of the New Haven approach, jurisprudence is a theory about making social choices. International law itself reflects the expectations of relevant community members about stable patterns of behavior created by assertions of control by legal authorities. The primary jurisprudential and intellectual tasks are the prescription and application of policy in ways that maintain community order and simultaneously achieve the best possible approximation of the community's social goals. These
normative
Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good, desirable, or permissible, and others as bad, undesirable, or impermissible. A norm in ...
social goals or values of the New Haven approach include maximizing shared community values, such as wealth, enlightenment, skill, well-being, affection, respect and rectitude. The teleological goal of New Haven School jurisprudence is the interpretation of international law as a system of creating minimum world public order, with continued progress toward the development of shared values into an optimum order.
Critical Legal Studies
Critical Legal Studies
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
(CLS) emerged as a legal theory in America during the 1970s. It exists to this day as a method of analyzing international law from a highly theoretical perspective. The method proposes that the nature of international law is limited because it is determined by language, which is biased and still stuck in the conventional structures of politics and power. Critical Legal scholars argue that those structures of power can be found within the binaries that exist in legal language (man vs. woman, majority vs. minority, etc.). Recognizing the political aspect of international law, these scholars also argue that universality is impossible. Criticism of this method suggests that this radical practice is impossible to put into application. It was successful, however, in pushing forward other approaches to international law (
feminist
Feminism is a range of socio-political movements and ideologies that aim to define and establish the political, economic, personal, and social equality of the sexes. Feminism incorporates the position that society prioritizes the male po ...
,
cultural relativist
Cultural relativism is the idea that a person's beliefs and practices should be understood based on that person's own culture. Proponents of cultural relativism also tend to argue that the norms and values of one culture should not be evaluated ...
, etc.) because of its deep analysis of language, and all the imbalance that it reveals.
Central case approach
The central case approach is a method of looking at human rights situations. This approach recognizes the existence of certain universal rights. It begins analyzing a human rights issue by constructing a hypothetical ideal situation in which those rights are applied, a standard against which to compare an actual situation. The central case approach then investigates to what extent, and in what ways the actual situation deviates from the ideal (or the central case).
[Cheng(2004), 260.]
The central case approach allows for more complexity than the traditional binary method of analysis. In binary terms, human rights are simply violated or they are upheld. This does not allow for degrees of severity of a
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
violation, which creates a deceptively simplistic view of a situation.
John Finnis
John Mitchell Finnis, , (born 28 July 1940) is an Australian legal philosopher, jurist and scholar specializing in jurisprudence and the philosophy of law. He is the Biolchini Family Professor of Law, emeritus, at Notre Dame Law School and a P ...
developed the concept of a central case as it applied to assessing legal systems;
Tai-Heng Cheng was the first to apply it to human rights. If used by decision-makers, the central case approach could be effective in preventing human rights abuses. It takes into account a society's political and social situations in addition to specific human rights abuses.
This enables it to detect trends of human rights abuses, and the reasons behind these trends. The depth of a central case analysis exposes the different degrees of human rights abuses that occur, allowing policy makers to focus on the most severe cases and patterns of abuse with more urgency.
The central case approach provides an accurate and flexible picture of situations that are in a state of change.
[Cheng(2004), 261.] Whereas a binary appraisal would conclude whether a human right had been violated at one point in time, the central case approach can detect shifting political and social conditions and patterns that give a more nuanced view of the state of human rights.
Feminist legal theory
Feminist legal theory critiques current
legal vocabulary and practice by arguing it is
patriarchal
Patriarchy is a social system in which positions of Dominance hierarchy, dominance and Social privilege, privilege are primarily held by men. It is used, both as a technical Anthropology, anthropological term for families or clans controll ...
, presenting men as the norm and women as a deviation from the norm. Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink law completely, so it is possible to promote broader social goals of justice and equality. Feminist methods seek to expose the biases from which international law is written and particularly the notion that women are more vulnerable than men and need special protection under the law. Feminist theorist
Hilary Charlesworth
Hilary Christiane Mary Charlesworth (born 28 February 1955) is an Australian international lawyer. She has been a Judge of the International Court of Justice since 5 November 2021, and is Harrison Moore Professor of Law and Melbourne Laureate ...
criticizes the dialogue of women as victims in need of protection from both men and international law. Additionally, she argues that the irony of the dominant language is that while it aims to especially protect women, the emphasis is on the protection of her honor and not on the protection of her social, cultural and economic rights.
LGBT legal theory
Lesbian, Gay, Bisexual, and Transgender/Transsexual (LGBT) International Law Theory is a critical school of thought that continues to develop as the shortcomings of international law are realized, in regard to the
integration
Integration may refer to:
Biology
*Multisensory integration
*Path integration
* Pre-integration complex, viral genetic material used to insert a viral genome into a host genome
*DNA integration, by means of site-specific recombinase technology, ...
of
queer theory into international law theory. While human rights conventions have recently begun to generalize in regard to equality and its recipients, in the past, any discussions of
sexual orientation
Sexual orientation is an enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. These attractions are generall ...
and
gender identity
Gender identity is the personal sense of one's own gender. Gender identity can correlate with a person's assigned sex or can differ from it. In most individuals, the various biological determinants of sex are congruent, and consistent with the i ...
have gone largely untouched. The movement of LGBT International Law Theory centers on the inclusion and awareness of LGBT rights (and protection of persons), as well as the integration of queer theory within the realm of international law.
As LGBT theory has become more prominent in scholarly works,
international court
International courts are formed by treaties between nations or under the authority of an international organization such as the United Nations and include ''ad hoc'' tribunals and permanent institutions but exclude any courts arising purely under n ...
s and
international law organizations
International is an adjective (also used as a noun) meaning "between nations".
International may also refer to:
Music Albums
* ''International'' (Kevin Michael album), 2011
* ''International'' (New Order album), 2002
* ''International'' (The T ...
(particularly the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
Council and the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
) have considered
workplace discrimination
Employment discrimination is a form of illegal discrimination in the workplace based on legally protected characteristics. In the U.S., federal anti-discrimination law prohibits discrimination by employers against employees based on age, race, ...
on the basis of sexuality, issues stemming from the definition of family in regard to
homosexual unions, the position of
transsexuals
Transsexual people experience a gender identity that is inconsistent with their assigned sex, and desire to permanently transition to the sex or gender with which they identify, usually seeking medical assistance (including sex reassignm ...
in the question of sexual orientation, the need for recognition of LGBT rights in regard to general health advocacy and the
HIV/AIDS
Human immunodeficiency virus infection and acquired immunodeficiency syndrome (HIV/AIDS) is a spectrum of conditions caused by infection with the human immunodeficiency virus (HIV), a retrovirus. Following initial infection an individual ...
crisis, the inclusion of and LGBT advocacy group within the UN (with advisor status), and the ongoing active persecution of people engaging in homosexual acts, among other issues.
According to scholar
Nancy Levit, the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context, that is the critical body of LGBT International Law Theory.
International law in ancient Rome
The idea of international law in Roman times is a complicated one. For, not only does the
Roman Republic
The Roman Republic ( la, Res publica Romana ) was a form of government of Rome and the era of the classical Roman civilization when it was run through public representation of the Roman people. Beginning with the overthrow of the Roman Kin ...
and following empire itself dominate a long period of time in history, but also the very debate over whether or not the term "international law" is an applicable term is not yet decided. Many scholars and authors define international law as "the law governing relations between sovereign, territorial states."
[Lesaffer (2005), 25–58]
Any attempt to find a similar parallel in
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
would find a logical starting point in the
ius gentium
The ''ius gentium'' or ''jus gentium'' (Latin for "law of nations") is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ''ius gentium'' is not a body of statute law n ...
(the laws of nations).
[Mousourakis, George "The Historical and Institutional Context of Roman Law" (Ashgate Publishing company, 2003), 22] The ius gentium began as a Roman recognition of like legal practices and institutions (such as
slavery
Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
) that was found at that time in most states.
[Mousourakis (2003), 23] This brand of law was in fact
private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
in itself and mainly dictated the way in which the Roman state was to deal with individual foreigners, not entire states.
However, when
citizenship
Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection".
Each state determines the conditions under which it will recognize persons as its citizens, and ...
was granted to all free men in the empire in 212 A.D. ius gentium ceased to cling to its original definition and instead was applied to states as a whole.
Some semblance of modern international law can therefore be found in this shift. The actual extent of these origins and their relevance to modern law is a topic that has not yet been approached in any depth.
Third World
Third World Approaches to International Law (TWAIL) is a critical approach to international law that is not a "method" in the strict sense of questioning "what the law is". Rather, it is an approach to law that is unified by a particular set of concerns and analytical tools with which to explore them. It is an approach that draws primarily from the history of the encounter between international law and colonized peoples. TWAIL shares many concepts with
post-colonial
Postcolonialism is the critical academic study of the cultural, political and economic legacy of colonialism and imperialism, focusing on the impact of human control and exploitation of colonized people and their lands. More specifically, it is a ...
studies,
feminist theory
Feminist theory is the extension of feminism into theoretical, fictional, or philosophical discourse. It aims to understand the nature of gender inequality. It examines women's and men's social roles, experiences, interests, chores, and feminist ...
,
Critical legal studies
Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
,
Marxist theory
Marxist philosophy or Marxist theory are works in philosophy that are strongly influenced by Karl Marx's materialist approach to theory, or works written by Marxists. Marxist philosophy may be broadly divided into Western Marxism, which drew fro ...
and
critical race theory
Critical race theory (CRT) is a cross-disciplinary examination, by social and civil-rights scholars and activists, of how laws, social and political movements, and media shape, and are shaped by, social conceptions of race and ethnicity. Goa ...
. TWAIL scholarship prioritizes in its study the power dynamic between the
First World
The concept of First World originated during the Cold War and comprised countries that were under the influence of the United States and the rest of NATO and opposed the Soviet Union and/or communism during the Cold War. Since the collapse of ...
and
Third World
The term "Third World" arose during the Cold War to define countries that remained non-aligned with either NATO or the Warsaw Pact. The United States, Canada, Japan, South Korea, Western European nations and their allies represented the " First ...
and the role of international law in legitimizing the subjugation and oppression of Third World peoples. TWAIL scholars try to avoid presenting the "Third World" as a unified, coherent place but rather use the term to indicate peoples who have the shared experience of underdevelopment and marginalization.
Contemporary TWAIL scholarship has it origins in works of jurists such as B. S. Chimni,
Georges Abi-Saab
Georges Michel Abi-Saab (born June 9, 1933) is an Egyptian lawyer, professor of international law, and an international judge. He is well known for his defense of the interests of Third World countries in and within international law.
Early life ...
,
F. Garcia-Amador R.P. Anand,
Mohammed Bedjaoui
Mohammed Bedjaoui ( ar, محمد بجاوي) (born September 21, 1929 in Sidi Bel-Abbes) is an Algerian diplomat and jurist. He served as Algeria's ambassador to France and the United Nations among other places. He also served as a judge on the I ...
, and
Taslim O. Elias. Over the years, several Western scholars have been sympathetic to the Third World's position and made important contributions to this body of scholarship, and these include, scholars such as
C.H. Alexandrowicz,
Richard Falk
Richard Anderson Falk (born November 13, 1930) is an American professor emeritus of international law at Princeton University, and Euro-Mediterranean Human Rights Monitor's Chairman of the Board of Trustees. In 2004, he was listed as the author ...
,
Nico Schrijver
Naftiran Intertrade Company limited (NICO) is a Swiss-based subsidiary of the National Iranian Oil Company (NIOC). NICO is a general contractor for the oil and gas industry. NIOC buys the vast majority of Iran's gasoline imports. NICO is a key pl ...
and
PJ.I.M. de Waart.
David Kennedy and
Martti Koskenniemi
Martti Antero Koskenniemi (born 18 March 1953) is a Finnish international lawyer and former diplomat. Currently he is professor of International Law in the University of Helsinki and Director of the Erik Castrén Institute of International Law and ...
have also contributed support in their own work. TWAIL as a loose network of scholars has had several conferences thus far.
See also
*
Public international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
*
Jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
*
Rule according to higher law
*
Regional integration law
Notes
References
*
William C. Bradford''In The Minds of Men: A Theory of Compliance with the Laws of War''(2004)
* ''Third World Quarterly'' Vol. 27, No.5 (2006)
* Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Chinedu Okafor (eds.). The Third World and International Order: Law, Politics and Globalization'' (Leiden: Brill Academic Publishers, Martinus Nijhoff, 2003)
* Mutua, wa Makau, "What is TWAIL?" Vol.31 ''American Society of International Law Proceedings'' (2000)
* Rajagopal, Balakrishnan. ''International Law From Below; Development, Social Movements and Third World Resistance'' (Cambridge: Cambridge University Press, 2003)
*
Domingo, Rafael, ''The New Global Law'' (Cambridge: Cambridge University Press, 2010)
* Anghie, Anthony. ''Imperialism, Sovereignty and the Making of International Law'' (Cambridge: Cambridge University Press 2005)
* Anne-Marie Slaughter; Andre S. Tulumello; Stepan Wood. "International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship", 92 ''American Journal of International Law'' 367–397 (1998)
* Weeks, Edythe,
Politics of Space Law in a Post Cold War Era: Understanding Regime Change', Northern Arizona University, Ph.D. Dissertation for the Department of Politics and International Affairs, November 2006
External links
* American Society of International Law
International Legal Theory, volumes 1–12(1995–2006).
Public International Law as a Form of Private Ordering
{{DEFAULTSORT:International Legal Theory
Legal theory
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
Philosophy of law
International relations theory