An Epilogue on an Epilogue

2006 ◽  
Vol 7 (12) ◽  
pp. 1095-1102 ◽  
Author(s):  
Florian Hoffman
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
First Century ◽  
Double Bind ◽  
Theoretical Spectrum ◽  
Legal Practice ◽  
Grammatical Structure ◽  
Law And Politics ◽  
The Difference

As the last straw, a question: where does it (From Apology to Utopia) lead us to, what are we to make of and with it (international law)? The author himself hints at an answer in the very last sentence of the Epilogue, which marks the difference between the original and this new edition of From Apology to Utopia (FATU), by pointing to his second Hauptwerk, the seminal Gentle Civilizer of Nations and the story about international lawyers it tells. Indeed, the last paragraph of FATU thereby becomes a sort of epi-epilogue, an interpretive afterthought on Gentle Civilizer, written after the original FATU, within the afterthought of FATU's new edition, written after Gentle Civilizer. The latter is taken to illustrate the consequences of FATU for both individual practitioner and academic lawyers, notably the continuous double bind between law and politics inherent in the structure of international law. That double bind demands, according to Koskenniemi, at once coolness and passion, that is, as he concludes, “a full mastery of the grammar and a sensitivity to the uses to which it is put.” This, of course, alludes once again to the twofold intent that inspires FATU: to disinter with archeological precision the grammatical structure of international law and to thereby enable its critique, or, as the author puts it in the Epilogue, to join a descriptive with a normative project. The double-edged argument that has resulted from this combination has uniquely captured the letter and spirit of international legal practice and has mesmerized the international legal profession ever since it first appeared in 1989. Together with Gentle Civilizer, it has justly made its author into one of the iconic figures of international legal theory of the intellectual fin-de-siècle of the outgoing twentieth and the incoming twenty-first century. Yet, for all the echoes FATU has been occasioning in virtually all corners of the legal theoretical spectrum, the consequences that flow from it for legal theory and practice have remained somewhat under-explored.

scholarly journals From Apology to Utopia and the Inner Life of International Law

2016 ◽  
Vol 29 (3) ◽  
pp. 641-666 ◽  
Author(s):  
AKBAR RASULOV
Keyword(s):  
International Law ◽  
Significant Contribution ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Practice ◽  
Inner Life ◽  
Legal Science ◽  
The Subject

AbstractA certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

A Response

2006 ◽  
Vol 7 (12) ◽  
pp. 1103-1108 ◽  
Author(s):  
Martti Koskenniemi
Keyword(s):  
Social Sciences ◽  
International Law ◽  
Legal Profession ◽  
Social World ◽  
Theory And Practice ◽  
Legal Practice ◽  
Specific Relationship ◽  
The Social ◽  
Constant Source ◽  
The Way

From the preceding essays, but also from the general discussion around From Apology, two themes emerge as a constant source of puzzlement, not least to myself. How does the argument in that book affect – if at all – the way we do international law? And what does the claim to be “critical” really mean? These are, I suppose, aspects of one larger set of problems that permeate the whole of that work. “Oh yes, it does describe the argumentative patterns pretty well. But it does not really change anything, does it?” One might approach this sort of query in different ways. It might be thought of as an expression of the classical theme about the relations of theory and practice in the social sciences. How do academic works influence the social world to which they are addressed? Or one might be more interested in the specific relationship between (academic) doctrines and legal practice – the “outside” and the “inside” of the legal profession.

scholarly journals TWAIL and the “Unwilling or Unable” Doctrine: Continuities and Ruptures

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 266-270 ◽  
Author(s):  
Ntina Tzouvala
Keyword(s):  
International Law ◽  
Third World ◽  
Legal Theory ◽  
Use Of Force ◽  
Theory And Practice ◽  
History Of ◽  
Scope Of Application ◽  
Political Commitments ◽  
The Right ◽  
United Nations Charter

Given the long history of violent encounters between the Global North and the Global South, legal arguments concerning the use of force are a fertile ground for testing the virtues and limits of Third World Approaches to International Law (TWAIL) as a theory aspiring to “address the material and ethical concerns of Third World peoples.” This essay examines the usefulness and limits of TWAIL in the context of the “unwilling or unable” doctrine currently promoted by a series of Western scholars and states in order to expand the scope of application of the right to self-defence under Article 51 of the United Nations Charter. Adopting TWAIL’s impulse to historicize, this essay argues that the structure of this doctrine closely replicates the “standard of civilization” that informed international legal theory and practice throughout the nineteenth century. At the same time, widespread resistance to the “unwilling or unable” doctrine indicates that the profound transformation of international law on the use of force after 1945 and the diffusion of sovereignty outside the West put into question certain methodological and political commitments of TWAIL.

scholarly journals On Legal Positivism’s Word and our ‘Form-of-(non-)Living’

Global Jurist ◽  
2016 ◽  
Vol 16 (2) ◽  
Author(s):  
Luca Siliquini-Cinelli
Keyword(s):  
Human Rights ◽  
International Law ◽  
Free Trade ◽  
Legal Theory ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Theory And Practice ◽  
Legal Positivism ◽  
Legal Validity ◽  
Political Form

AbstractThis paper is about two stories. The more reassuring one states that by establishing that a norm is valid because of its source, not its merit, legal positivism is, in its various forms, perhaps one of the greatest achievements in Western legal theory and practice. From constitutionalism to human rights policies, from criminal to international law and free trade agreements, from contracts to torts and e-commerce, legal validity, predictability, and coherence have found their most powerful ally in positivist thought. This contribution argues that it is time for a different, neorealist story: the metaphysical, ontological and biopolitical essence of its language demonstrates that legal positivism has in fact played a fundamental role in the substitution of action with behaviour, and consequently, in the normalisation of humankind’s self-annihilating animality as post-historical and post-political ‘form-of-(non-)living.’

scholarly journals Dogmatyka prawa wobec politycznej opresji. Czy historia myśli prawnej może nas czegoś nauczyć?

2021 ◽  
Vol 43 (2) ◽  
pp. 201-215
Author(s):  
Andrzej Bator
Keyword(s):  
Critical Theory ◽  
Eleventh Century ◽  
Legal Theory ◽  
The Political ◽  
Legal Practice ◽  
Law And Politics ◽  
The Face ◽  
Theory Of Law ◽  
Investiture Controversy ◽  
Relationship Of

One of the contemporary views formulated and popularized mainly by authors from the socalled critical theory of law is the belief in the inevitable, mutual relationship of law (theory of law and dogmatics of law) and legal practice (adjudication) with politics and the political. This position is strengthened by the observation of contemporary disputes — especially visible in Poland — with the participation of politicians and lawyers: politicians accuse lawyers of political motivation of actions taken to defend the judiciary and the rule of law, while lawyers defend themselves by arguing the need for autonomy of their professional practice, including its apolitical nature. In this text, I explain the arguments of the latter party to the dispute. I choose the dogmatics of law as the field of illustrating the issues raised, since it occupies a special place in the continental legal scholarship, acting as an intermediary between the jurisprudence and legal decision-making practice. I am trying to show — by referring to two examples from general history, i.e. the eleventh-century investiture controversy and the nineteenth-century debate in the background of the German reunification idea — that law and politics (lawyers and politicians) have always been forced to compete and cooperate with each other. Thus, it confirms the thesis of the critical theory of law. At the same time, however, I try to show that the legal community had the ability to “learn” from the political disputes of the past, which led to the formation of independent jurisprudence and legal practice in the face of current politics, and thus also to apoliticality. What is more, I argue that such an apolitical nature is a condition for the survival of legal culture in its present shape — and here, my path diverges from the critical legal theory claims. However, in my opinion, the contemporary arguments made within this theory about the political science of law and jurisprudence should be treated with all seriousness — as another experience from which our community, as one can hope, will be able to draw informative conclusions.

scholarly journals The idea of equality as a double-bind of modern civilization

2021 ◽  
Vol 2 (12) ◽  
pp. 27-30
Author(s):  
N. S. OBOTUROVA ◽  
Keyword(s):  
Social Development ◽  
Legal Theory ◽  
Theory And Practice ◽  
Double Bind ◽  
Human Thought ◽  
History Of ◽  
Legal Thinking ◽  
Judicial Protection

Analysis of the evolution of the idea of equality from its classical to its modern interpretations shows that in the history of human thought there have been many delusions, erroneous and false representations based on the understanding of equality not as an idea, direction, but as a really operating inevitable law. The absolutized literal understanding of equality, which is spreading today in the postmodern pluralistic worldview, turns it according to the author into a trap, a double-bind of modern civilization and creates disformative risks. Considering equality from the standpoint of the libertarian-legal type of legal thinking as primarily formal legal, the author analyzes the dialectics of equality and inequality, shows the conceptual, programmatic nature of the idea of equality in modern social development. It is equality in rights as a guaranteed by law and guaranteed by judicial protection the ability to realize in various spheres of life that has conceptual significance for the development of modern legal theory and practice and acts as a stabilizing basis for the development of our civilization.

The international rule of law and the domestic analogy

2015 ◽  
Vol 4 (3) ◽  
pp. 365-395 ◽  
Author(s):  
IAN HURD
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Global Politics ◽  
The Rule Of Law ◽  
Theory Of Practice ◽  
Joseph Raz ◽  
Anglo American ◽  
International Rule

AbstractA surge in academic interest in the interaction of international law with international politics has recently raised the profile of the rule of law in global politics. The idea of an ‘international rule of law’ is central to many accounts of international order, and to both political science and legal scholarship. Despite its popularity, the concept is rarely defined or examined. This article considers the theory and practice of the international rule of law. It shows first that the international rule of law cannot be deduced from the conventional Anglo-American version of the rule of law in domestic legal theory, as sketched by Joseph Raz and others. It then considers two competing versions of a distinctly international concept of the rule of law, one based on a positivist theory of compliance and the other on a structurationist theory of practice. The former is more common in legal and political scholarship but the latter accounts better for the political power of international law in relation to states.

Pengembangan Marketing Knowledge Ditengah Perbedaan Perspektif Akademisi-Praktisi

2017 ◽  
Vol 24 (2) ◽  
pp. 107-115
Author(s):  
Amin Wibowo
Keyword(s):  
Theory Development ◽  
Theory And Practice ◽  
Knowledge Development ◽  
Customer Focus ◽  
Marketing Practice ◽  
Knowledge Based ◽  
The Difference

Knowledge is created and learned by academicians for the purpose of further theory development. Academician’role in disseminating knowldege is very important. To reach a convergent understanding both theory and practice, it’s a need of flexibility between methodology and sources of data so that it stimulates actionable insight.One of the problems between theory and practice differencesis customers focus.For practicians customer focus raised three foundamentals questions: can the knowledge phylosophy reduce cost?. Can the knowledge phylosophy increse sales?, and can the knowledge phylosophy increase the profit?. This paper discuss the development of marketing knowledge based on the marketing practice to bridge the gap between academicians and practicians. Issues being discussed in this paper are the meaning of marketing knowledge from practician perspective, the theory of marketing in practician’s world, actionable research as the bridge of knowledge development, and the difference perspective between academician and parctician.

Domestic Anti-Avoidance Legislation in Relation to Tax Treaty Law

2017 ◽  
Vol 6 (2) ◽  
pp. 312
Author(s):  
Shkumbin Asllani
Keyword(s):  
International Law ◽  
Tax Avoidance ◽  
International Taxation ◽  
Main Principle ◽  
Legal Practice ◽  
Tax Treaties ◽  
International Tax ◽  
Tax Payers ◽  
The Relationship ◽  
Domestic Law

In today’s international taxation most of the developing countries enter into tax treaties which are drafted in line with the OECD MC to eliminate double taxation. Yet, is well-known fact that tax treaties in practice are abused by tax payers, therefore, majority of states have introduce legislation specifically designed to prevent tax avoidance and protect their domestic interests. In legal practice and literature the act of overriding international tax treaties and denying treaty benefits in favour of domestic law provisions threatens main principle of international law and therefore is questionable to what extend the relationship between domestic law and international tax treaty agreements bridges the international norms.

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