Chapter

A Political Theory of Law: Escaping The Aporia of the Debate on the Validity of Legal Argument in Public International Law

Ulrich Fastenrath

in From Bilateralism to Community Interest

Published in print March 2011 | ISBN: 9780199588817
Published online May 2011 | e-ISBN: 9780191725272 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199588817.003.0007
A Political Theory of Law: Escaping The Aporia of the Debate on the Validity of Legal Argument in Public International Law

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This chapter conceptualizes the political theory of law as an open system of norms. Neither its elements nor the meaning of its norms are fixed. Thus, the legal order is at no time a bulk of definite or even definable commands. Neither are the norms understood by the different actors in a uniform way, nor is the legal order free of self-contradictions. Rather, it consists of competing legal assertions that are partly decided through authoritative processes, partly in other ways, but can also exist undecided alongside each other. Nevertheless, the different actors are trying to establish their legal assertions. Due to the openness of law the validity of a legal assertion can neither be attributed in a logically compelling way to legal utterances, nor will this be the outcome of a deliberative discourse as hypothesized in Habermas' concept of communicative rationality. In fact, it is a political process which decides on the success of legal assertions. This applies to both legislative and interpretative law-making, the latter conceived as a struggle of legal assertions for becoming effective.

Keywords: political theory of law; open system; norms; legal assertions; communicative rationality

Chapter.  10511 words. 

Subjects: Public International Law

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