International legal theories
International legal theory, or theories of international law, comprise a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of
Classical approaches to international law
Natural law
Many early international legal theorists were concerned with axiomatic truths thought to be reposed in natural law. Sixteenth century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American people.
Eclectic or Grotian approach
During the seventeenth century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia.
Legal positivism
The early
Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "
International relations – international law approaches
Legal scholars have drawn from the four main schools of thought in the areas of
Realism
Within the Realist approach, some scholars have proposed an "enforcement theory" according to which international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance, and institutionalize collective procedures for punishing violations, thereby enhancing the
is underlined. Morrow, for instance, notes that:International politics in modern times generally recognizes no authority above the nation-state. Agreements among states are enforceable only by the agreeing states themselves. This assumption of anarchy poses a paradox for agreements to limit violence during wartime. (...) Reciprocity serves as the main tool to enforce agreements in international politics. Enforcement of an agreement is devolved to the parties themselves. Damaged parties have the option to respond with retaliatory sanctions to a violation of an agreement. The threat of reciprocal sanctions may be sufficient to deter violations, and so agreements can be enforced in international politics.[8]
Liberalism
Based on the
Agreements concluded among liberal States are more likely to be concluded in an atmosphere of mutual trust, a precondition that will facilitate any kind of enforcement. In particular, however, the assumptions that these are agreements reached with the participation of a network of individuals and groups in the participating States, and that these States are committed to the rule of law enforced by national judiciaries should lead to more 'vertical' enforcement through domestic courts. This mode of enforcement contrasts with the traditional 'horizontal' mode involving state responsibility, reciprocity, and countermeasures.[10]
Rational choice and game theory
This approach to law applies
International legal process
The classic International Legal Process is the method of studying how international law is practically applied to, and functions within international policy, as well as the study of how international law can be improved.[17] "It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy".[18] ILP was developed in response to the "realists from the discipline of international relations",[19] who realized with the beginning of the Cold War how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeld, in which the American legal process method was adapted to create an international legal process.[20] ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law.[18] ILP also measures the extent to which individuals are held accountable for abuses in international conflicts.[21] While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device.[21] Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP.[22] The New International Legal Process (NLP) incorporates both law as a process and as the values of each society respectively. Unlike the American Legal System, it considers normative values other than democracy, such as "…feminism, republicanism, law and economics, liberalism as well as human rights, peace and protection to the environment."[23] The NLP is unique in its flexibility in adapting to the evolution of values. This component of the method is important in order to resolve the changing of legal standards over time. The NLP shows its true departure from the ILP by addressing what happens in the situation of conflict, as well as what should be happening.
Policy oriented perspectives
New Haven School
The New Haven School is a policy-oriented perspective on international law pioneered by
Critical Legal Studies
Central case approach
The central case approach is a method of looking at human rights situations. This approach recognizes the existence of certain universal rights.[32] It begins analyzing a human rights issue by constructing a hypothetical ideal situation in which those rights are applied, a standard against which to compare an actual situation. The central case approach then investigates to what extent, and in what ways the actual situation deviates from the ideal (or the central case).[33] The central case approach allows for more complexity than the traditional binary method of analysis.[34] In binary terms, human rights are simply violated or they are upheld.[35] This does not allow for degrees of severity of a human rights violation, which creates a deceptively simplistic view of a situation.
John Finnis developed the concept of a central case as it applied to assessing legal systems;[36] Tai-Heng Cheng was the first to apply it to human rights. If used by decision-makers, the central case approach could be effective in preventing human rights abuses. It takes into account a society's political and social situations in addition to specific human rights abuses.[33] This enables it to detect trends of human rights abuses, and the reasons behind these trends. The depth of a central case analysis exposes the different degrees of human rights abuses that occur, allowing policy makers to focus on the most severe cases and patterns of abuse with more urgency. The central case approach provides an accurate and flexible picture of situations that are in a state of change.[37] Whereas a binary appraisal would conclude whether a human right had been violated at one point in time, the central case approach can detect shifting political and social conditions and patterns that give a more nuanced view of the state of human rights.[37]
Feminist legal theory
Feminist legal theory critiques current legal vocabulary and practice by arguing it is patriarchal, presenting men as the norm and women as a deviation from the norm. Feminist theorists propose to change legal language to make it more inclusive of women, or to rethink law completely, so it is possible to promote broader social goals of justice and equality. Feminist methods seek to expose the biases from which international law is written and particularly the notion that women are more vulnerable than men and need special protection under the law. Feminist theorist Hilary Charlesworth criticizes the dialogue of women as victims in need of protection from both men and international law. Additionally, she argues that the irony of the dominant language is that while it aims to especially protect women, the emphasis is on the protection of her honor and not on the protection of her social, cultural and economic rights.[38]
LGBT legal theory
International law in ancient Rome
The idea of international law in Roman times is a complicated one. For, not only does the
Third World Approaches to International Law
Contemporary TWAIL scholarship has it origins in works of jurists such as B. S. Chimni,
have also contributed support in their own work. TWAIL as a loose network of scholars has had several conferences thus far.See also
- Public international law
- Jurisprudence
- Rule according to higher law
- Regional integration law
- Third World Approaches to International Law (TWAIL)
- Realism
Notes
- ^ Bruno Simma and Andreas L. Paulus "Symposium on method in International Law: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View" 93 American Journal of International Law 302 (April, 1999).
- ^ Abbot, Kenneth W. "Symposium on Method in International Law: International Relations Theory, International Law and the Regime Governing Atrocities in Internal Conflicts." (1999): 361–378.
- ^ Anne-Marie Slaughter; Andre S. Tulumello; Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 American Journal of International Law 367–397 (1998) at p. 369: "We identify three ways that lawyers are using materials and insights from IR theory: to diagnose substantive problems and frame better legal solutions; to explain the structure or function of particular international legal rules or institutions; reconceptualize or reframe particular institutions or international law generally."
- Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 American Journal of International Law 260 (1940).
- ^ William C. Bradford, In The Minds of Men: A Theory of Compliance with the Laws of War (2004) p. 7.
- ^ Stanley Hoffmann, Conditions of World Order 364 (1956).
- ^ William C. Bradford, In The Minds of Men: A Theory of Compliance with the Laws of War (2004) p. 8.
- ^ James D. Morrow, The Laws of War as an International Institution, p. 1 (2008) See also: James D. Morrow, Laws of War, Common Conjectures, and Legal Systems in International Politics, 31 Journal of Legal Studies 41 (2002): "International Law must be self-enforcing to be effective. Successful self-enforcement of law among states requires either that they must be willing to live up to their legal obligations regardless of what others do or that reciprocity must deter violations."
- ^ William C. Bradford, In The Minds of Men: A Theory of Compliance with the Laws of War (2004) p. 9.
- ^ Anne-Marie Slaughter, International Law in a World of Liberal States, 6 European Journal of International Law (1995) p. 532.
- ^ Hawley, Frederick Barnard. "The Definition of Economics".The American Economic Review, Vol. 3, No. 3. (September 1913), 606–609. [1]
- ^ Hawley 1913, 606–609.
- ^ Forsythe, David. Human Rights in International Relations (Cambridge University Press 2000).
- ^ "Game Theory." Encyclopædia Britannica. 2008. Encyclopædia Britannica Online. 13 Mar. 2008. [2]
- JSTOR 1149277.
- ^ Druzin, Bryan (2014). "Opening the Machinery of Private Order: Public International Law as a Form of Private Ordering". Saint Louis University Law Journal. 58.
- ^ O'Connell, Mary Ellen. "Symposium on Method in International Law". The American Society of International Law American Journal of International Law, 1999), 334.
- ^ a b O'Connell (1999), 334.
- ^ O'Connell (1999), 336.
- ^ O'Connell (1999), 335.
- ^ a b O'Connell (1999), 337.
- ^ O'Connell (1999), 338.
- ^ O’Connell (1999), 77.
- ^ Reisman, Michael. "The View from the New Haven School of International Law" International Law in Contemporary Perspective (Foundation Press, New York, NY 1992).
- ^ Reisman (2004), 2.
- ^ Reisman (2004), 5.
- ^ Steinberg, Richard & Zasloff, Jonathan. "Power and International Law" 100 AM. J. Int'l L. 64, 64–87 (2006).
- ^ Shaw, Malcolm N. "International Law" (5th ed. 2003) p. 62.
- ^ Steinberg & Zasloff (2006).
- ^ Shaw (2003).
- ^ Lillich, Richard B. "International Human Rights: Problems of Law, Policy, and Practice" (4th ed. 2006) p. 36.
- Pacific Rim Law & Policy13:257 (2004), 260.
- ^ a b Cheng (2004), 260.
- ^ Cheng (2004), 258.
- ^ Cheng (2004), 257.
- ^ Finnis, John. "Natural Law and Natural Rights." 9–11 (H.L.A. Hart ed., 1986) (1996).
- ^ a b Cheng (2004), 261.
- ISSN 0002-9300.
- ^ Sanders, Douglas. "Human Rights And Sexual Orientation in International Law." 11 November 2005. International Gay and Lesbian Law Association.
- ^ Levit, Nancy. "A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Principles in Gay Legal Theory and Constitutional Doctrine" (Ohio State Law Journal, Vol. 61, 2000) p. 867.
- ^ Lesaffer, Randall. "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription" Volume 16, Number 1 (European Journal of International Law 2005).
- ^ a b Lesaffer (2005), 25–58.
- ^ Mousourakis, George "The Historical and Institutional Context of Roman Law" (Ashgate Publishing Company, 2003), 22.
- ^ a b Mousourakis (2003), 23.
References
- William C. Bradford, In The Minds of Men: A Theory of Compliance with the Laws of War (2004)
- Third World Quarterly Vol. 27, No.5 (2006)
- Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Chinedu Okafor (eds.). 'The Third World and International Order: Law, Politics and Globalization (Leiden: Brill Academic Publishers, Martinus Nijhoff, 2003)
- Mutua, Makau W., "What is TWAIL?" Vol. 31 American Society of International Law Proceedings (2000)
- Rajagopal, Balakrishnan. International Law From Below; Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003)
- Domingo, Rafael, The New Global Law (Cambridge: Cambridge University Press, 2010)
- Anghie, Anthony. Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2005)
- Anne-Marie Slaughter; Andre S. Tulumello; Stepan Wood. "International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship", 92 American Journal of International Law 367–397 (1998)
- Weeks, Edythe, Politics of Space Law in a Post Cold War Era: Understanding Regime Change, Northern Arizona University, Ph.D. Dissertation for the Department of Politics and International Affairs, November 2006
External links
- American Society of International Law, International Legal Theory, volumes 1–12 (1995–2006).
- Public International Law as a Form of Private Ordering