Chapter

The Critiques 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/9780199696314.003.0004

Series: Oxford Monographs in International Law

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

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Following the same pattern as the previous chapter, this chapter explores the critiques of formal law-ascertainment first in general legal theory and then in the theory of international law. It starts with the criticisms found in general legal theory, and draws in particular on modern natural law objections, those of legal realism, Dworkin’s famous attack on the source and social theses as well as the postmodern criticisms thereof. The chapter then turns to the contestations of formal law-ascertainment in the theory of the sources of international law. It especially draws on the remnants of substantive validity theory in international legal scholarship, the turn to pragmatism of international realism, the turn to instrumentalism of the New Haven School and those approaches to international law that are inspired by critical legal studies and deconstructivism in international law.

Keywords: modern natural law; legal realism; Dworkin; Postmodernism; critical legal studies; deconstructivism; substantive validity; international realism; New Haven School

Chapter.  20117 words. 

Subjects: Public International Law

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