Chapter

The Concept and the Rationale of Formalism in International Law

d'Aspremont Jean

in Formalism and the Sources of International Law

Published in print September 2011 | ISBN: 9780199696314
Published online January 2012 | e-ISBN: 9780191732201 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199696314.003.0002

Series: Oxford Monographs in International Law

The Concept and the Rationale of Formalism in International Law

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This chapter spells out the various meanings of formalism in the international legal scholarship. It starts by explaining how formalism is understood in the book, that is as a theory of law-ascertainment that materializes itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) grounded in social practice (the social thesis). The chapter then attempts to distinguish between a conception and the current associations of formalism with adjudicative neutrality and immanent intelligibility of legal arguments, voluntarism, State-centricism, formal lawmaking processes or legal positivism. The chapter also elaborates on the extent to which the theory of formalism presented in the book, albeit different, is compatible with the famous — and somewhat ironical – “culture of formalism” put forward by Martti Koskenniemi. The chapter finally expounds on the rationale of a formal theory of ascertainment and discusses the contribution of formal-ascertainment to the preservation of the normative character and authority of international law, the significance of scholarly debates about international law, the possibility of a critique of international legal rules and the international rule of law.

Keywords: ascertainment; adjudicative neutrality; voluntarism; positivism; culture of formalism; normativity; authority of international law; Koskenniemi

Chapter.  15740 words. 

Subjects: Public International Law

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