The International Legal Order

Benedict Kingsbury

in The Oxford Handbook of Legal Studies

Published in print June 2005 | ISBN: 9780199248179
Published online September 2012 | | DOI:
 The International Legal Order

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This article assesses major themes and approaches in the recent scholarship of international law, and to identify likely future directions and problems. It proceeds from the starting-point that the Anglo-French focus on dispute settlement and litigation, and the US focus on managerial problem-solving, are manifestations of a recurrent feature of international law writing since two of its founding scholar-practitioners, Alberico Gentili (1552–1608) and Grotius (1583–1645). It is argued that the specific focus on disputes and on third-party settlement, with its associated positivist theory, has dovetailed with broader problem-solving approaches in encouraging the development of several useful legal concepts, but that the dominant positivist theoretical structure that has held international legal practice together now encounters so many internal critiques and external challenges that its viability is seriously in question, unless it can be deepened and renovated. A proposal for rethinking the concept of international law is outlined in summary fashion. It is argued that the Grotian integration of theory and practice is a valuable and distinctive feature of international law; that there are ethical arguments for the predominant positivist positions which this problem-solving engagement with practice has fostered; that problems such as moral injustice and lack of legitimacy now require a richer approach to international law rules and process in an era of deepening international governance; and that a Grotian conception of international law which integrates sources-based and content-based criteria provides a promising way forward.

Keywords: international law; legal scholarship; dispute settlement; litigation; Alberico Gentili; Grotius; managerial problem-solving

Article.  11963 words. 

Subjects: Law ; International Law

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