Legal Theory As a Source of International Law

2018 ◽  
Author(s):  
Iain Scobbie
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Natural Law ◽  
Paradigm Shift ◽  
Legal Theory ◽  
New Haven ◽  
Socially Constructed ◽  
Hugo Grotius ◽  
Institutional Order

This chapter argues that legal theory provides conceptions of the sources of international law that differ according to time and place. It employs Neil MacCormick’s explanation of institutional order to argue that conceptual understandings of law, including international law, are socially constructed. The chapter starts from John Austin’s denial that international law possesses the quality of law and then considers the function that sovereignty has played in some explanations of international law and its sources. Afterwards, the analysis focuses on the paradigm shift that Hugo Grotius introduced into natural law, and consequently into international law, by substituting consent for theology as its underpinning explanation. The chapter also considers twentieth-century transatlantic variants of natural law and examines three influential British theorists—James Brierly, Gerald Fitzmaurice, and Hersch Lauterpacht. Finally, before drawing some conclusions, the chapter examines the more instrumentalist naturalism of the New Haven School.

Part II Approaches, Ch.14 Natural Law in International Legal Theory: Linear and Dialectical Presentations

2016 ◽  
Author(s):  
Gordon Geoff
Keyword(s):  
Early Modern ◽  
International Law ◽  
Natural Law ◽  
Legal Theory ◽  
Early Modern Period ◽  
Time Frame ◽  
Political Organization ◽  
Modern Period

This chapter presents an overview of three active periods of natural law scholarship bearing on international legal theory, via two stories that illustrate these to effect. The first story relates in brief the renewed attention to natural law doctrine as part of historiographical and epistemological inquiries in international law and legal theory. The second presents still another means of understanding natural law and its ongoing role in international law, namely as a dialectic by which new conceptions and vocabularies of political organization have arisen under varying historical circumstances. The chapter then traces the role of natural law doctrine as part of a linear consolidation of liberal hegemony internationally from the early modern period forward, and offers the dialectical presentation covering the same time frame. The chapter concludes by returning to how natural law continues to contribute both to the possibility of new normative programs internationally, as well as the hegemonic.

scholarly journals Three Grotian Theories of Humanitarian Intervention

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
Humanitarian Intervention ◽  
First Century ◽  
Responsibility To Protect ◽  
Self Defense ◽  
The People ◽  
Hugo Grotius ◽  
Law Of Nations

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.

The Self and Strong Legal Theory: A Heideggerian Alternative to Fish’s Scepticism

2006 ◽  
Vol 19 (1) ◽  
pp. 3-30 ◽  
Author(s):  
Gavin Byrne
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
The Self ◽  
Metaphysical Realism ◽  
Socially Constructed ◽  
The World ◽  
The Difference

This essay concerns the question of whether it is possible to have an account of what judges ought to do when they decide cases if one accepts Stanley Fish’s thesis that man is a socially constructed creature, who can only see the world around him in terms of the practice that he is involved in. It puts forward the view that such a position is defensible, provided that one makes different metaphysical commitments to the ones made by Fish. It is argued that Fish is best understood as a metaphysical idealist. The essay seeks to demonstrate that Martin Heidegger’s conception of the self and interpretation are similar to those of Fish, but that, when understood as involving a commitment to metaphysical realism, Heidegger’s philosophy can hold the possibility of strong legal theory open in a way that Fish’s cannot. Michael S. Moore’s natural law position is used in order to articulate what such a position might be. Moore’s example of what a judge ought to do if called upon to define ‘death’ as a concept is used to illustrate the difference between Fish and Heidegger when it comes to metaphysics and strong legal theory, despite their similarities when it comes to an account of interpretation and of the self.

scholarly journals Mapping Legal Theory

1994 ◽  
Vol 32 ◽  
pp. 602 ◽  
Author(s):  
Richard F. Devlin
Keyword(s):  
First Nations ◽  
Natural Law ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Realism ◽  
Canadian Charter ◽  
Social Existence ◽  
Legal Studies ◽  
Recent Trends

In this essay, the author briefly outlines recent trends in Canadian jurisprudence. Beginning with a brief overview of the classical jurisprudential debate between natural lawyers, legal positivists, and legal realists, the author then provides an introduction to a new theoretical tradition which he terms "Artifactualism", as well as a survey of contemporary "Artifactualist Jurisprudence". He argues that there has been a significant theoretical shift away from the classical conceptualization of law as morality (as embodied in natural law, and challenged by legal positivism and legal realism), toward the conceptualization of law as politics (as promulgated by artifactualism). This new conceptualization of law as the "terrain of struggle over the meaning and quality of social existence" has informed the works of Artifactualist jurisprudents in the areas of Liberalism, Marxism, Feminism, First Nations and Critical Legal Studies, and serves to elucidate some of the tensions in the Canadian Charter of Rights and Freedoms.

scholarly journals A Short History of Western Legal Theory by J M Kelly

2000 ◽  
Vol 31 (4) ◽  
pp. 901
Author(s):  
Sandra Petersson
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Criminal Law ◽  
Natural Law ◽  
Legal Theory ◽  
The State ◽  
Short History ◽  
History Of

This article is a book review of J M Kelly A Short History of Western Legal Theory (reprint, Clarendon Press, Oxford, 1997) (466 + xvi pages, $75). Kelly's aim was to make the reader see jurisprudence in its historical setting, something that Petersson agrees was done well. The book discusses the history of Western legal theory through the ages, tracing key themes including Theory of the State, Validity of Law, Rule of Law, Nature and Purpose of Law, Natural Law, Equality, Property, Equity, Criminal Law and Punishment, and International Law. Petersson notes that Kelly's work is notably non-Anglocentric. However, Petersson comments on Kelly's failure to treat positivism as its own separate conception of law, as well as Kelly's omission of feminist legal theories. 

Two Puzzles from the Postscript

Legal Theory ◽  
1998 ◽  
Vol 4 (3) ◽  
pp. 359-380 ◽  
Author(s):  
Philip Soper
Keyword(s):  
Twentieth Century ◽  
Natural Law ◽  
Legal Theory ◽  
Ronald Dworkin ◽  
Beliefs And Values ◽  
Law And Morality ◽  
The Law

Conversions occur in legal theory about as often as they do in religion, which is to say rarely—so rarely that they fascinate as much for the fact that they happen at all as for the reasons they happen. It should not surprise, then, that the Postscript to H.L.A. Hart's famous work on jurisprudence reveals “the outstanding English philosopher of law of the twentieth century” reaffirming, rather than revising in any significant way, the two central tenets that distinguish his theory from that of both classical natural law theorists and modern “new naturalists” like Ronald Dworkin: (1) There is no necessary connection between law and morality; and (2) judges inevitably confront cases where the decision is “not dictated by the law” and the judge “must act as a conscientious legislator would by deciding according to his own beliefs and values” (p. 273).

Hugo Grotius: On the Conquest of Utopia by Systematic Reasoning

2017 ◽  
Author(s):  
Stefan Kadelbach
Keyword(s):  
International Law ◽  
Natural Law ◽  
History Of Ideas ◽  
Legal Scholarship ◽  
Hugo Grotius ◽  
History Of ◽  
The Many

This chapter seeks to reconstruct the basic elements of Grotian thinking from his two most famous treatises, De jure praedae and De jure belli ac pacis. Both have different biographical and historical backgrounds and an entirely different history of reception. The first is foremost considered as a memorandum to serve commercial interests, whereas the latter is, with some justification, seen to pursue humanist idealism, the systematic ambition of legal scholarship, and the ordering idea of peace. However, since some of what has been called ‘Grotian’ is not much more than a standard taxonomy of the history of ideas, the chapter deals with adaptations of Grotius’ philosophy in natural law thinking and internationalist reception to assess how much of Grotianism came about in later epochs. The many contradictions in the work of Grotius both inspire and invite us to explore the distinctions between moral imperatives and positive international law.

Political Thinkers

2017 ◽  
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
John Rawls ◽  
Political Thought ◽  
Hannah Arendt ◽  
Just War ◽  
Biographical Sketch ◽  
The Social ◽  
Hugo Grotius

Political Thinkers is an introduction to Western political thought. This third edition provides an introduction to the canon of great theorists, from Socrates and the Sophists to contemporary thinkers such as John Rawls and Hannah Arendt. Each chapter begins with a chapter guide, a biographical sketch of the thinker, a list of their key texts, and their key ideas. Scholastic commentary enables readers to understand the social and political contexts that inspired political thinkers. This edition features two new chapters on Arendt, one of the most influential philosophers of the twentieth century, and Hugo Grotius, whose work on just war continues to inform international law today. Following an introduction, the work is structured into five sections.

Part I Histories, Ch.9 Early Twentieth-Century Positivism Revisited

2016 ◽  
Author(s):  
García-Salmones Rovira Mónica
Keyword(s):  
International Economic ◽  
Twentieth Century ◽  
Economic System ◽  
International Law ◽  
Legal Theory ◽  
Economic Interdependence ◽  
Philosophical Position ◽  
Underlying Theory ◽  
Early Twentieth Century

This chapter focuses on Lassa Oppenheim’s (1858–1919) groundbreaking work on the legal theory of international law, which was written at the beginning of the twentieth century. Oppenheim’s recognition of the economic interdependence of nations was one important factor in his success in establishing the international economic system as the supporting framework of his Family of Nations, and as the underlying theory of his international law. Afterwards, the chapter maps the complex legal theoretical transition embedded in the change of philosophical position as regards the understanding of universalism. This involves a move from the transcendent realist philosophy of an earlier era to the immanent philosophy of the Austrian positivists at the beginning of the century.

International Law and Global Ideological Conflict: Reflections on the Universality of International Law

1951 ◽  
Vol 45 (4) ◽  
pp. 648-670 ◽  
Author(s):  
Kurt Wilk
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal History ◽  
Legal Theory ◽  
League Of Nations ◽  
Political Ideologies ◽  
The Family ◽  
The World ◽  
The Hague ◽  
New Challenges

If, after the nineteenth century, there remained any question concerning the universality of international law, or of its fundamental rules, it appeared to be largely one of legal history. But as the world of the twentieth century has come to be divided by political ideologies, their legal ramifications have given the question new actuality as one of basic legal theory. That the Family of Nations, or the subjects of international law, embraced virtually all states of the world seemed no longer open to serious doubt when non-Christian states wholly outside Europe took part in the Hague Peace Conferences of 1899 and 1907 and when participation by such states was continued and further extended in the Paris Peace Conference of 1919 and in the League of Nations. Yet the same period that saw the unquestioned global expansion of international law has had to face new challenges to its unity as a single, universally valid legal system. They were raised chiefly by German Nazis and Soviet Communists, or in turn against them by their respective critics and opponents. Confronted with these challenges, the universal validity of international law appears no longer as an existingphenomenon that may be traced back to its origins and on to its eventual completion, but as a debatable assumption that stands to be justified or rejected in the light of fresh examination.

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