Part IV Debates, Ch.46 International Legalism and International Politics

2016 ◽  
Author(s):  
Hoffmann Florian
Keyword(s):  
International Law ◽  
International Politics ◽  
Empty Space ◽  
The Other ◽  
The Political ◽  
Critical Reading ◽  
Law And Politics ◽  
Other Hand ◽  
The Law

This chapter attempts to measure the gap between law and politics, in a recapitulation of where the liberal project of international law stands, as framed within the tensions evident in the international lawyers’ professional preference for legal objectivism and political agnosticism and, on the other hand, their equally professional unwillingness to openly admit to this preference. Legalism represents that gap, yet it is curiously everywhere and nowhere in international law, a paradox produced by the still empty space between the law and the political. But if one follows a historical-critical reading of international law, ‘legalism’ was already born as an ideological framework to defend a liberal internationalist project.

The Codification of International Law

1924 ◽  
Vol 18 (2) ◽  
pp. 260-280
Author(s):  
James Brown Scott
Keyword(s):  
International Law ◽  
The Body ◽  
The Other ◽  
Strict Sense ◽  
Other Hand ◽  
Law Of Nations ◽  
The Law ◽  
Principles Of Justice ◽  
Correct Understanding

There are certain preliminary observations which should be made before we can take up the question of codifying international law or the method of codification, for without a correct understanding of certain matters, which may be considered fundamental, we may not know whether we are to deal with a system of law or a system of philosophy. As a matter of fact we are dealing with both, for law develops unconsciously or consciously in accordance with the principles of philosophy. If the law of nations is to be considered law in the strict sense of the word, we must deal with it as a system of law. If, on the other hand, it is a system of philosophy rather than of law, we must deal with it as philosophy, and the point of approach and the method of treatment will be different. But, above and beyond law, we are dealing with justice, and with those principles of justice, which, expressed in rules of law, we call the law of nations. Justice is the source; the principles of justice applicable to the conduct of nations constitute the law of nations, and the rules of law based upon these principles change with conditions, or to meet new conditions, and form the body and substance of international law at any given period.

scholarly journals Theorising Order in the Shadow of War. The Politics of International Legal Knowledge and the Justification of Force in Modernity

2020 ◽  
Vol 22 (2-3) ◽  
pp. 218-245
Author(s):  
Hendrik Simon
Keyword(s):  
International Law ◽  
The Other ◽  
The Political ◽  
Law And Politics ◽  
State Practice ◽  
Long Time ◽  
History Of ◽  
History Of International Law ◽  
Modern War ◽  
War Discourse

Abstract The History of International Law lacks systematic studies on the link between legal scholars and practices of justifying war. This missing analytical link has for a long time given the impression that legal scholars describe ‘state practice’ in an ‘objective’, unpolitical way. Contradicting this impression, the article turns to the politics of legal scholars in the genesis of the modern war discourse. It reflects on the fateful entanglement of violence, law and politics, but nevertheless distinguishes between ‘objective’ and ‘political’ scholarship on the basis of Hans Kelsen’s work. Furthermore, the article illustrates the politicisability of legal scholars in selected historical cases of the ‘long 19th century’ (1789–1918). In all cases, two hearts pounded in lawyers’ chests: one scientific, the other political. As will be shown, the modern war discourse is shaped by a phenomenon that enables scholars to expand the intrinsic limits to the political instrumentalisation of law: ‘multi-normativity’.

Współczesny kryzys migracyjny a uwarunkowania międzynarodowoprawne

2016 ◽  
pp. 67-98
Author(s):  
Przemysław Saganek
Keyword(s):  
International Law ◽  
The Other ◽  
Law Of The Sea ◽  
International Protection ◽  
Other Hand ◽  
The Law ◽  
Migration Crisis ◽  
Definition Of ◽  
The Right ◽  
The Eu

The text of Przemysław Saganek is a part of a wider discussion on the Mediterranean migration crisis. The author underlines the multi-aspect character of the crisis and the fact that several branches of international law which are at stake in it. They cover: the law on refugees, human rights, the law of the sea, the maritime law, the rules on territorial sovereignty and on the crossing of borders. What is of importance are customary norms, treaties and norms of the EU law. The idea of the author is to look at the instruments of international law which may act as incentive for hundreds of thousands of newcomers or as main obstacles for the states to put an end to uncontrolled inflow of people through their borders. His idea is to identify such instruments and start discussion on their possible suspension or termination if the crisis persists. The author comes to the conclusion that the definition of a refugee from the 1951 Geneva Conventionis not by itself a source of problems. The same concerns the subsidiary protection as introduced by the EU qualification directive. The same can be said about the scope of rights of persons covered by the international protection. The only element which requires discussion is the possible redefinition of the right to national treatment as regards the social aid. On the other hand, the scope of powers of states to defend their borders depends on the interpretation of the EU instruments on the protection of borders and the rights of applicants for international protection. The author comes to the conclusion that neither the procedural directive, nor the 2016 Schengen Border Code can be interpreted as a source of the right of an applicant to enter the territory of a Member State. On the other hand, the geographical conditions and the law of the sea make Greece and Italy the most vulnerable for the inflow of persons. The necessity of important changes to the law and its interpretation are referred to in a general way.

Choosing among the Shades of Nuance: The Discourse of Proportionality in International Law

Global Jurist ◽  
2015 ◽  
Vol 15 (2) ◽  
Author(s):  
Grigory Vaypan
Keyword(s):  
International Law ◽  
The Other ◽  
Dialectical Structure ◽  
Law And Politics ◽  
Other Hand ◽  
Legal Discourses ◽  
The One ◽  
Argumentative Practice

AbstractProportionality has been largely misunderstood both by its proponents and by its critics. On the one hand, it has been wrongly regarded as a more transparent and at the same time a more controllable alternative to other types of legal discourses. On the other hand, it has been incorrectly viewed as a realm of unlimited subjectivity and pure politics. In fact, proportionality oscillates between law and politics, trying to reconcile the two yet constantly falling into one or another. The article studies the dialectical structure of proportionality and explores proportionality as an argumentative practice.

scholarly journals International legal structuralism: a primer

2016 ◽  
Vol 8 (2) ◽  
pp. 201-235 ◽  
Author(s):  
Justin Desautels-Stein
Keyword(s):  
Critical Theory ◽  
International Law ◽  
Second Generation ◽  
International Politics ◽  
The Other ◽  
Law And Politics ◽  
The One ◽  
The Way ◽  
International Thought

International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well received, perhaps in part, because it was not well understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the 1980s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim about how the critics wanted to show that international law had never been anything but politics, and that it always would be. In the view of this essay, both of these claims about international legal structuralism were wrong, and they are still wrong today. For despite the tendency to think of it as a cover for postmodern nihilism or relentless deconstruction or both, legal structuralism offers international theorists an enriching and edifying method for rethinking the relation between law and politics on the one hand, and law and history on the other. It is in the effort to carry a brief for a reawakened legal structuralism that the essay brings focus to some of the early works of Koskenniemi and Kennedy, identifies the semiotic foundations of that work, and ultimately suggests the possibility of a second generation of international legal structuralism.

Glory and the Law in Hobbes

2016 ◽  
Vol 16 (1) ◽  
pp. 61-76 ◽  
Author(s):  
Tracy B Strong
Keyword(s):  
Political Order ◽  
The Other ◽  
The Political ◽  
Other Hand ◽  
Central Argument ◽  
The Law

A central argument of the Leviathan has to do with the political importance of education. Hobbes wants his book to be taught in universities and expounded much in the manner that Scripture was. Only thus will citizens realize what is in their hearts as to the nature of good political order. Glory affects this process in two ways. The pursuit of glory by a citizen leads to political chaos and disorder. On the other hand, God’s glory is such that one can do nothing but acquiesce to it. The Hobbesian sovereign shares some of the effects of glory that God has naturally; this, however, has to be supplemented by awe and that but fear.

Equity in International Law

1987 ◽  
Vol 22 (2) ◽  
pp. 161-183 ◽  
Author(s):  
Ruth Lapidoth
Keyword(s):  
Burkina Faso ◽  
International Law ◽  
The Other ◽  
International Court Of Justice ◽  
Applicable Law ◽  
Court Of Justice ◽  
Other Hand ◽  
International Court ◽  
The Law ◽  
The Republic

In its judgment concerning the frontier dispute between Burkina Faso and the Republic of Mali (1986), the Chamber ot the International Court of Justice (I.C.J.) summarized its opinion on the applicability of equity as follows:It is clear that the Chamber cannot decideex aequo et bonoin this case. Since the Parties have not entrusted it with the task of carrying out an adjustment of their respective interests, it must also dismiss any possibility of resorting to equitycontra legem. Nor will the Chamber apply equitypraeter legem. On the other hand, it will have regard to equityinfra legem, that is, that form of equity which constitutes a method of interpretation of the law in force, and is one of its attributes. As the Court has observed: “It is not a matter of finding simply an equitable solution but an equitable solution derived from the applicable law”.

Seabed Issues at the Law of the Sea Conference: The Caracas Session

1975 ◽  
Vol 12 ◽  
pp. 222-238 ◽  
Author(s):  
Barry Buzan
Keyword(s):  
International Law ◽  
Present Report ◽  
Political Process ◽  
The Other ◽  
Law Of The Sea ◽  
The Political ◽  
The Third ◽  
Third Law ◽  
The Law

The caracas meeting was only the first of three, or possibly four, sessions of the Third Law of the Sea Conference that will try to bridge the gap between the rambling six volume result of the Seabed Committee’s work and the concise articles of a new Law of the Sea Convention. The work at Caracas did not reach a stage at which it became possible to submit draft articles for the approval of the Conference. As a result, the final documents of the session made no commitment on any matters of substance. Such movement towards agreement as was achieved is therefore not binding, and is extremely vulnerable to changes of position by states in the six months preceding the next session in Geneva. Because of this, the emphasis of the present report will be more on the political process at Caracas than on the development of international law. My purpose is, first, to examine the new proposals on seabed issues and relate them to previously existing positions; second, to analyse the alignments behind the key positions; and third, to look at the other factors emerging as influences on the seabed negotiations.

Internationale Gemeinschaft

2019 ◽  
Author(s):  
Matthias Lindhof
Keyword(s):  
Social Theory ◽  
International Politics ◽  
International Community ◽  
The Other ◽  
The Political ◽  
Political Leaders ◽  
Global Order ◽  
Other Hand ◽  
Dual Character ◽  
The One

This volume deals with the ‘international community’. Instead of asking for its factual existence, however, it reconstructs the political meaning of the concept itself, which is used regularly and quite effectively in the interpretation of international politics. Using a hermeneutical approach rooted in pragmatist social theory, it examines three speeches by prominent European political leaders in detail. The results point out the dual character of the concept: on the one hand, it is open enough to convey different conceptions of a just global order; on the other hand, analogously to a currency, it allows legitimacy for contrary political purposes to be ‘bought’.

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

Sign in / Sign up

Export Citation Format

Share Document