Chapter

The Emergence of Formal Law-Ascertainment in the Theory of the Sources of 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/9780199696314.003.0003

Series: Oxford Monographs in International Law

The Emergence of Formal Law-Ascertainment in the Theory of the Sources of International Law

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This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20th and early 21st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.

Keywords: legal theory; Hobbes; Bentham; Austin; Kelsen; Hart; formalism; constitutionalism

Chapter.  27516 words. 

Subjects: Public International Law

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