International legal scholars tend to think of their work as the interpretation of rules: the application of a law 'out there' to concrete situations. This book takes a different approach to that scholarship: it views doctrine as a socio-linguistic practice. In other words, this book views legal scholars not as law-appliers, but as constructing knowledge within a particular academic discipline. By means of three close-ups of the discourse on cyberwar and international law, this book shows how (...) class='Hi'>international legal knowledge is constructed in ways usually overlooked: by means of footnotes, for example, or conference presentations. In so doing, this book aims to present a new way of seeing international legal scholarship: one that pays attention to the mundane parts of international legal texts and provides a different understanding of how international law as we know it comes about. (shrink)

This book revisits the theory of the sources of international law from the perspective of formalism.

_Interpretation and Construction_ examines the interpretation and products of intentional human behavior, focusing primarily on issues in art, law, and everyday speech. Focuses on artistic interpretation, but also includes extended discussion of interpretation of the law and everyday speech and communication. Written by one of the leading theorists of interpretation. Theoretical discussions are consistently centered around examples for ease of comprehension.

Inspiring and distinctive, After Meaning provides a radical challenge to the way in which international law is thought and practised. Jean d'Aspremont asserts that the words and texts of international law, as forms, never carry or deliver meaning but, instead, perpetually defer meaning and ensure it is nowhere found within international legal discourse. In challenging the dominant meaning-centrism of the international legal discourse and shedding light on the sovereignty of forms, this book promotes a radical new (...) attitude towards textuality in international law. The author offers new perspectives on interpretation, critique, history, comparison, translation and referencing, inviting international lawyers to reinvent their engagement with these discourses. Chapters define meaning and form in international law, explore deferral of meaning and make an unprecedented use of post-structuralist theory to rethink international law. After Meaning will be an essential reference point for legal scholars, researchers and students who seek to understand a different way of thinking about meaning in international law. The book's engagement with post-structuralism will also prove beneficial to anyone interested in the philosophy of language and literary theory. (shrink)

_Interpretation and Construction _examines the interpretation and products of intentional human behavior, focusing primarily on issues in art, law, and everyday speech. Focuses on artistic interpretation, but also includes extended discussion of interpretation of the law and everyday speech and communication. Written by one of the leading theorists of interpretation. Theoretical discussions are consistently centered around examples for ease of comprehension.

In this article I discuss the nature and sense of legal reasoning as reasonableness, i.e. as judgement and equilibrium between normativity and factuality, and as constant approximation between these two dimensions. By phrasing the intertwinement between legal hermeneutics and the nature and function of writing, the structure of the article is constructed so that the focus is on the changes currently occurring with the so-called ‘digital revolution’: in imagining a juridical system administrated through data analysis and algorithms, some contradictions emerge, (...) especially concerning the nature, sense and task of legal hermeneutics. The current shift of paradigm should be first of all addressed starting from the grammatological nature of the revolution at stake. Only from this perspective can the shift be entirely grasped and, at the same time, only from this perspective can the methodological conundrum be deconstructed. (shrink)

This chapter contains section titled: Objects of Legal Interpretation Utterance Model of Legal Interpretation How the Law Is Different from Art Digression: Indeterminacy in Art and the Law Aims of Legal Interpretation and Conceptions of the Law Precedent and Judicial Authority Considerations of Prudence, Morality, and Justice: Judicial Liberty A Constructivist Conception of Legal Interpretation An Alternative View: Dworkin's Constructivism The Relevance of Intention: Con and Pro Conclusion Notes.

Preface The status of sovereignty as a highly ambiguous concept is well established. Pointing out or deploring, the ambiguity of the idea has itself become a recurring motif in the literature on sovereignty. As the legal theorist and international lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and confusion is as great as here.” 1 The concept of sovereignty is often seen as a downright obstacle to fruitful conceptual analysis, carried over from its (...) proper setting in history to “plague and befog contemporary thought.” 2 . . . So contested is the concept that, rather than pursuing the contestation, many political theorists think we should give up so protean a notion. Granting that the debate on the relevance of sovereignty frustratingly oscillates between claims that it will either continue to exist or that it is about to disappear, forgetting it altogether, and thereby escaping this seemingly endless argument, can easily appear as the most urgent task for political theory . The following argument makes a case that the “urgent task” is not the abandonment of the concept of sovereignty, but an understanding of its essential philosophical nature as an integrated and evolving expression of practical reason. Sovereignty is neither ambiguous nor obscure once its fundamental presuppositions are laid bare and its many philosophical and historical manifestations shown to be the product, in actuality, of a single, dialectally dynamic but integrated set of metaphysical elements. This is the first of three arguments describing the evolution of international law as a manifestation of practical reason through an application of philosophical method to the source , locus , and scope of the concept of sovereignty. It moves from a dialectic balance favoring utility to a balance dominated by legal right to a dialectic of duty to humanity and nature. All three arguments are meant to be a contribution to the new field of International Legal Philosophy as defined by Phillip Allott. 4 This field combines a sensitivity to legal practice with an effort to understand the underlying philosophical determinants of empirical choice and behavior. One purpose of international legal philosophy is to “remove” from the minds of those who study the law what Diderot defined as “the sophism of the ephemeral,” and what Allott calls “the disempowering idea that what xii Preface happens to exist now is inevitable and permanent.” 5 A core imperative is to “reunderstand what it is to be a thinking being” 6 and to rediscover the dialectic between the private and the public as it determines, and is redetermined by, legal practice. This requires a “revolution in the human mind” 7 so that we may transcend the current dependence on positivist methods and empirical fact as an end-in-itself, and try to understand the underlying and more constant and essential ideas and inherent dialectics that constitute the substructure or “metaphysics” of international law. I will approach this “revolution” with the use of R. G. Collingwood’s philosophical method 8 and the philosophy of David Hume, applied to international law as an expression of practical reason. The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered to identify the ideas within the issue, and their definition, overlap, and systematic interdependence. Philosophical method is a means with which to interpret and understand competing systematic and complete conceptual logics, existing at the core of an issue and pertinent to policy change. Philosophical method is therefore not meant to be a replacement for the empirical investigation of a policy or legal issue, or the use of scientific method in social studies. Rather, it is a complimentary and prerequisite method that seeks to transcend the limitations of positivism and present a more complete understanding of the philosophical presuppositions of positivist ideas like power, interest, or strategic rationality. Philosophical method is meant to be used with the facts of the policy or legal issue to match an illuminating logic of concepts with a pertinent logic of investigation . Within the CPA, the use of philosophical method and the metaphysics of a policy or legal issue is assumed to be critical to the full understanding of the overlapping concepts, dialectics, and scale of forms that determine, and are determined by, the empirical context of the policy or legal topic. Specifically, instead of utilizing bits and pieces of various theoretical arguments to address narrowly focused empirical questions, as positivism prescribes, I will address the evolution of international law as practical reason in three phases. Each will be approached through a single integrated logic of philosophical concepts from a particular philosopher (i.e., David Hume, G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to the law is based on the assumption that only through the use of a single integrated argument in legal analysis can sovereignty, or any concept, be understood as a truly systematic and logical whole. A complete philosophical paradigm has a dialectic integrity and systematic logic that can more adequately describe the evolving essence of a concept like sovereignty. This approach also has the advantage of generating a number of distinct holistic descriptions of the law through the application of different philosophical systems, one at a time, to its factual structure. 9 Positivism does not seek Preface xiii holism, and rejects the idea that “theory” has such a characteristic. The essential or comprehensive substructure of any idea is therefore ignored in a method that recommends the observation of empirical problems through the use of whatever hodgepodge of theoretical elements is seen fit to frame its superstructure. This failure to deal with metaphysics has retarded both an essential understanding of international law as a species of legal system, and any holistic and dialectical conceptualization of its inherent concepts, like sovereignty. A second positivist convention expects modern theorists to create new theory rather than to refine and apply that of existing philosophy. This predisposition is driven by the positivist goal of discovery that ignores refinement as a possible purpose of philosophical analysis. Collingwood argues that philosophy must take that set of ideas already known and utilize existing systematic philosophical arguments to refine them so that they evolve closer to their essence as concepts. Considering this imperative, the idea of sovereignty can be assumed to have had valid usage for hundreds of years, over which time, the concept has evolved to mean different things, each a refinement of the definition that preceded it. Transcending positivism means that the scholar’s search is not for “new” material, but to decipher the metaphysical essence of a concept as it has been made manifest over time and context. These manifestations are rooted, and refined from, the known terms of that concept’s inherent idea(s). Rather than depending exclusively on positivism and its conventions, my work utilizes, in addition to Collingwood, the intact philosophical systems of Hume, Hegel, and Kant to trace the refinement of international law as a product of human practical reason. These paradigms, or integrated systems of logical concepts, will be applied to legal practice individually, so that each CPA can be deciphered separately. This provides a set of integrated and logically intact paradigms for the evolutionary stages of practical reason in international law. Because each argument is applied systematically, a deeper understanding of the source, locus, and scope in the development of law in general, and international law in particular, is possible where it is not with the application of various disconnected components of many theories. Each CPA based on Hume, Hegel, or Kant can then be used to describe a distinct context that its logic of concepts best illuminates; specifically, the (1) genesis, (2) contemporary dilemmas, and (3) future of the international legal system. By widening the perspective of international lawyers and policymakers, they can more easily perceive the dialectic of ideas that has created, and is refined by, the legal practice in which they participate. We also move toward Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a more complete knowledge of the origins of legal practice and its evolution, we illuminate the practical possibilities for what we might “choose to be” 11 in the future. To achieve this, the essential metaphysical elements of state sovereignty and its inherent evolutionary scale of forms will be deciphered and described. This will transform what appears to be a multitude of definitions and xiv Preface practical realizations of the concept of sovereignty into a set of interdependent manifestations of a single substructure, made of a single set of dialectic elements. The interpretation of international law through practical reason sorts and integrates a diverse and discordant literature and defines state sovereignty as a single concept evolving on a scale of forms that allows it to exhibit diverse character traits, all arising from different combinations of common and essential metaphysical elements. This approach, compared to positivist methods and legal realism, allows one to transcend current agreement that sovereignty is, at best, a narrowly focused set of empirical characteristics or, at worst, “organized hypocrisy.” 12 This method also encourages the scholar and practitioner to understand the predispositions and pitfalls of the concept of sovereignty, as well as its potential future paths, more effectively. The use of philosophical method to create policy paradigms out of preexisting philosophical systems and apply these to international law will be called Philosophical-Policy & Legal Design . This approach allows the use of preexisting and complete philosophical arguments that provide an adequate logic of concepts to chart the evolution of the idea of sovereignty along its scale of forms. An examination of the source of practical reason in human social convention with the employment of a philosophical-policy drawn from Hume’s logic of concepts about human nature will demonstrate this new approach. Why Hume? Because, up to now, without an adequate substructure we have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify international law as an “interactional” system, but cannot present any argument as to why it is, where this empirical reality comes from, or what its implications are for the future. Comparatively, Hume provides a logic of philosophical concepts that answers these concerns. First, he fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention and the dependence of social convention on the human imperative for society. Second, he offers a more adequate delineation of the overlapping concepts of the law in terms of the ideas and institutions that deal with norms and justice (e.g., principle, process, practice, rule, power, interest). Third, he provides a fundamental understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion. (shrink)

The Article explores relationships between contemporary international human rights and democracy. In what respects are they two sides of the same coin, in what respects are they different coins? Do they depend on and complete each other? Can the two be in contradiction? The Article looks at these questions from several perspectives, including their historical connections, the changing definitions and understandings of each, their functional links, their determinacy, and their character as universal phenomena. It also indicates ways in which (...) courts, which have long interpreted and applied human rights, now also reach decisions about constitutional issues by drawing on their conception of democracy. (shrink)

This article probes the usefulness of selected theories from Cognitive Linguistics in the context of statutory interpretation. The presumption of legal language is a well-established rule of statutory construction in Polish legal practice that comes from the internationally recognised theory by Jerzy Wróblewski. It rests on a controversial assumption that there are different levels of generality in legal language (i.e. the language of statutes) and a single term may be given different meanings depending on the level of generality that (...) is referred to. The authors use the notion of basic level categorisation from the cognitive theory of prototypes to explain this mechanism. Legal concepts, not unlike ordinary concepts, form hierarchical taxonomies. A single term may denote concepts that are situated at different levels in different conceptual taxonomies. In the absence of special circumstances, a legal term should be given the meaning that resides at a higher level of categorisation in the respective legal taxonomy. This way, the presumption of legal language is found to be justified on both linguistic and psychological grounds. (shrink)

In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 clearly (...) is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

This article shows that the conspicuous and consistent idiosyncrasy of Grotius's Biblical interpretation is an important part of his revolutionary effort to secularize natural law. In De iure praedae and related works, Grotius systematically deployed a range of exegetical techniques in order to demonstrate that the Bible, like all texts, is open to multiple interpretations and susceptible to hijacking by rival agendas. This strategy aimed to render the Bible inadmissible as evidence in legal disputes and political legitimacy claims. The (...) consistent instrumentality of Grotius's use of the Bible in IPC cannot be dismissed as mere legalistic opportunism or described as an atheistic move. Rather, Grotius's exegetical strategy was motivated by pacifism and a desire to protect religion from politicization. The article positions this secularization strategy in the intellectual environment of the Leiden Circle, and shows how competing Catholic, Calvinist, and Mennonite political readings of the same key biblical passages during the Dutch-Iberian conflict provided the immediate occasion for writing IPC. In order to construct a natural law theory that was independent from, and therefore acceptable to, all religious sides, it was necessary to ensure that the Bible have no final word in law or politics, lest its invocation link disagreements to belief and thereby render them impossible to resolve. (shrink)

This volume contains a selection of papers presented at the special workshop "Truth and Objectivity in Law and Morals," held at the 26th World Congress of the IVR. The papers deal with diverse but correlated issues such as the search for truth in and through legal argumentation; the intelligible character of rules inside theories of interpretation which guarantee the coherence and the integrity of law; the role of hermeneutic analysis in the construction of the objectivity of law; the procedural (...) and contextual aspects of objectivity in legal reasoning; the role of objectivity in the distinction between the context of justification and the context of discovery; the problem about truth of normative propositions and legal statements; the incompatibility of non factualism with the traditional account of validity and legality; as well as the possibility of objectivity in morals. (shrink)

Recent case law on sexual violence crimes heard before the ad hoc international criminal tribunals and courts, that interpret them in connection with ethnic conflict, raises the question of which acts can be defined as sexual violence. The International Criminal Court, in the situation of Kenya, does not regard acts of forced nudity, forcible circumcision and penile amputation as sexual violence when they are motivated by ethnic prejudice and intended to demonstrate the cultural superiority of one tribe over (...) another. The Court argues that not every act of violence that targets parts of the body commonly associated with sexuality should be considered an act of sexual violence. This recent interpretation of what counts as sexual violence provides another example of the complicity of international criminal law institutions in the ongoing construction process of female subordination. The ICC, in the Kenya situation, implicitly confirms the mutilation of female agency by interpreting penile amputation as a kind of power game between males, and by instrumentalizing the male sexual organ as an indicator of masculinity and manhood. (shrink)

This chapter considers the key values underlying and explaining important features of international law as a system of law. It uses that value analysis as a way of interpreting international law and of asking whether, within those values, international law can be made to serve certain 'global cosmopolitan' re-distributive aims. The chapter argues that the constraints of international law mean that it is not an appropriate medium for global re-distributive goals commonly associated with theories of societal (...) justice. Because those features and constraints are based in values that international law distinctly serves, those constraints cannot simply be ignored, overridden, or changed judicially. (shrink)

This book explores the question of how international law is applied by domestic courts. Through case studies and analysis the contributors consider how traditions and diversity affect the interpretation of international law, from a mixture of doctrinal, practical, and theoretical approaches.

There are limits to what can be achieved using the means and medium of international law. This article explores those limits by providing an innovative theory of the nature of international law and how we should understand its limits in terms of value theory. A "four functions" theory is proposed, and these functions are used to interpret areas of international law in terms of their distinctive and valuable contribution to a specific area of human relations. On the (...) basis of this analysis of international law and international legal interpretation, the paper argues that the cosmopolitan aims of a number of moral cosmopolitan scholars fail to taken into account the value limits of international law. This is presented as a value problem, not a problem of feasibility or practicality. (shrink)

The rejection of an infinitesimal solution to the zero-fit problem by A. Elga ([2004]) does not seem to appreciate the opportunities provided by the use of internal finitely-additive probability measures. Indeed, internal laws of probability can be used to find a satisfactory infinitesimal answer to many zero-fit problems, not only to the one suggested by Elga, but also to the Markov chain (that is, discrete and memory-less) models of reality. Moreover, the generalization of likelihoods that Elga has in mind is (...) not as hopeless as it appears to be in his article. In fact, for many practically important examples, through the use of likelihoods one can succeed in circumventing the zero-fit problem. 1 The Zero-fit Problem on Infinite State Spaces 2 Elga's Critique of the Infinitesimal Approach to the Zero-fit Problem 3 Two Examples for Infinitesimal Solutions to the Zero-fit Problem 4 Mathematical Modelling in Nonstandard Universes? 5 Are Nonstandard Models Unnatural? 6 Likelihoods and Densities A Internal Probability Measures and the Loeb Measure Construction B The (Countable) Coin Tossing Sequence Revisited C Solution to the Zero-fit Problem for a Finite-state Model without Memory D An Additional Note on ‘Integrating over Densities’ E Well-defined Continuous Versions of Density Functions. (shrink)

The goal of this paper is to explicate the theological and epistemological elements of John Locke's moral philosophy as presented in the ‘Essay Concerning Human Understanding’ and ‘The Reasonableness of Christianity’. Many detractors hold that Locke's moral philosophy is internally inconsistent due to his seeming commitment to both the intellectualist position that divinely instituted morality admits of pure rational demonstration and the competing voluntarist claim that we must rely for our moral knowledge upon divine revelation. In this paper I argue (...) that Locke is guilty of no such contradiction. In doing so, I attempt to accommodate Locke's position in the ‘Essay’ that moral principles are demonstrable a priori with his views on the sanctity of Christian revelation. I then consider Locke's conception of moral ideas as a species of mixed modes, or arbitrarily constructed complex ideas, and attempt to navigate the mechanism whereby human understanding can recognize these ideas as conforming to, or straying from, divinely appointed natural law. I conclude that despite Locke's failure to actually provide a full-fledged moral theory, he lays a rationally coherent groundwork for the fulfilment of such a project that accommodates a-priori rational reflection and divine revelation as complementary paths to moral understanding. (shrink)

A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and (...) states prima facie reasons for a re-systematization of law as a prerequisite of systematic interpretation. The problem cannot be appreciated outside its proper context. It is a disregard for causation and evaluation. Hence the paper outlines Aristotle’s understanding of causation and evaluation in his presentation of phronesis, reconsiders continental European legal thought in the light of Aristotle’s presentation, and offers policy-oriented jurisprudence as a remedy to the deficit of evaluation and causation in European legal thought. A solution to the problem offers a typology of criteria and clarifies positive and fundamental legal concepts, positive and fundamental criteria of systematization, and the place of criteria in knowledge of law. The usefulness of the criteria is demonstrated by a common approach to the systematization of law and an alternative diagnosis of a defect of systematization diagnosed by an authority in history and philosophy of law rather than legal theory. (shrink)

The study examines the multifaceted nature of legitimacy in the context of international law, elucidating its paramount importance for the law's authority and its pervasive influence on the applicability of legal norms globally. The pressing relevance of this inquiry emerges from the challenges posed by the application of international law in complex scenarios such as military interventions and global governance, which necessitate a refined comprehension of legitimacy's contours. The research's objective is to dissect the essence, theoretical frameworks, and (...) practical dimensions of legitimacy, thereby elucidating its pivotal role and manifestations within the international legal order. The principal findings underscore that legitimacy in international law transcends mere legal validity, embedding itself within a broader ethical and communicative framework that demands consideration of justice, human rights, and international peace and security. Legitimacy is found to be inherently dynamic, shaped significantly by the interactive processes among global actors and the consensus within the international interpretative community on ethical and legal standards. The study highlights the crucial role of narrative and argumentation in legitimizing or delegitimizing actions under international law, illustrating how perceptions of legitimacy can evolve and influence international legal practices and decisions. The nuanced understanding of legitimacy gleaned from this research contributes to a more precise conceptualization of its role, emphasizing its indispensable function in guiding the application of international law, enhancing global governance, and promoting a more equitable and just international order. (shrink)

Prologue : consistency and conceptual variations -- Introduction : the socialization of international lawyers -- PART I. THE FOUNDATIONAL DOCTRINES -- 1. Subjects -- 2. Sources -- 3. Law-making -- 4. Institutions -- 5. Effectivity -- PART II. THE ARGUMENTATIVE TECHNIQUES -- 6. Methodology -- 7. Interpretation -- 8. Academic writing -- 9. Dissemination -- 10. Expert blogging.

There are frequent claims that the regulation of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the desired stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary pre-requisite for international law to be viewed as law. This study examines this problem for the first time (...) since these questions were introduced and identified as the basic premises of the international legal analysis, in the works of JL Brierly and Sir Hersch Lauterpacht. Addressing different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on, and threshold of, legal regulation, and the relationship between established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves to maintain and preserve the object and aims of existing legal regulation. The final stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. (shrink)

This paper explores Ronald Dworkin’s influential theory of constructive interpretation. It points out that this theory admits of two readings, which I call the “undemanding” and the “demanding” conceptions of constructive interpretation respectively. As I argue, Dworkin’s own presentation of the theory equivocates between these two conceptions, the former of which is utterly unproblematic, but the latter of which incorporates certain philosophical prejudices as to what it must mean for a practice to be purposive.

The following remarks were prepared as a response to Mary Ellen O'Connell's plenary address, "The Just War Tradition and International Law against War: The Myth of Discordant Doctrines," at the 2015 annual meeting of the Society of Christian Ethics. O'Connell's essay appears in this issue of the Journal of the Society of Christian Ethics. After noting some points of agreement, the response discusses five main issues: the moral complexity of "peace," the consonance of a peremptory norm against aggression with (...) just war thinking, the formative role of controversial political convictions in the interpretation of international law, the political defects of the current international legal system, and the efficacy of military intervention. (shrink)

This chapter contains sections titled: The Subject Matter of International Law The Sources of International Law Conclusion References.

The book provides an overview of how international law is today constructed through diverse macro and microprocesses that expand its traditional subjects and sources, with the attribution of sovereign capacity and power to the international plane (moving the international toward the national). Simultaneously, national laws approximate laws of other nations (moving among nations or moving the national toward the international), and new sources of legal norms emerge, independent of states and international organisations. This expansion occurs (...) in many subject areas, with specific structures: commercial, environmental, human rights, humanitarian, financial, criminal, and labor law contribute to the formation of postnational law with different modes of functioning, different actors, and different sources of law that should be understood as a new complexity of law. (shrink)

This collection is about how law makes meaning and how meaning makes law. Through clear methodology and substantial findings, chapters expose the deficits of 'literal' meaning and the difficulties in 'ordinary' meaning, in international legal contexts and in more immediate social ones, as well as in courtrooms. Further, chapters in this volume see the challenges to national and international commitments to all speakers sharing a common meaning.

When international relations scholars think about international law they either ignore culture or offer highly deterministic accounts of its role. For the majority of scholars, international law is a rational construction, an institutional solution to the problem of order in an anarchical system, a body of rules and practices that reflect the contending interests and capabilities of major states. Issues of culture barely rate a mention. For others, culture is the deep foundation of international law, the (...) structuring “mentality” that gives law its form and content. International law, from this perspective, is a Western cultural artifact, globalized through centuries of imperialism and hegemony. These contrasting views lead to different expectations about the future of international law in today's culturally diverse international order. For rationalists, law's fate will be determined by the shifting configuration of interests that accompany new functional challenges and great power transitions. For the more culturally attuned, there are two possibilities. One is that functional utility will replace culture as law's foundation. International law may well be a Western cultural artifact, but “rational buy-in” will sustain it in a multicultural world. The other, more pessimistic, expectation is that the rule of international law will be fundamentally undermined by cultural diversity, particularly as rising non-Western powers articulate and promote markedly different cultural norms and values. (shrink)

To date, international law has not featured prominently in academic analyses of Buddhism. Especially absent from this small body of literature are real-life examples of Buddhist monks and laity turning to international law to resolve grievances or protect Buddhism against perceived threats to it. This article seeks to fill this void. Drawing on interview and archival sources from Sri Lanka and the United Nations, it analyzes how one particular monk from Colombo became a key agent in the (...) class='Hi'>interpretation and transformation of international law. By so doing, this article complements existing scholarship concerning Buddhism’s philosophical or conceptual sympathies with international legal principles and provides further empirical ballast for understanding how, when and why Buddhists turn to international law. (shrink)

Being built on the ground of mutual effect, facing the current state-isolation, international law is losing its grip on efficiency. This makes some of us to question (1) If law is not working, do we still need law? If we would say no, the history shows that such is the path to the state-suicide. As Smithian mutual benefits is the assurance of the individual benefits, we need international relationships to create the benefits for the individual states, hence (...) class='Hi'>international law, Yet the current one is certainly not working, then, the question, (2) What should the international law be? The enforcement of the international law could be accomplished through the blockchain. As blockchain “went bypass” the national law, and simply negated it, yet it is still not immune to the scope of international jurisdiction. We also argue that the blockchain’ smart contract is not sufficient enough to operate smoothly. Human brain is structured as the mirror rather than a glass and transferring the law interpretation to the machine would not work, hence, we designed the formula of langue and parole, blockchain multiseg operating under the semiotics of the international law. Here the language learning is modelled with the supervisory and reinforcing algorithms, with supervisory predetermined with bias X,Y towards the values of law. Sort of form of constant repetends of Heidegger’s hermeneutics circle. The most important part in this paper is written with the purpose to explain that international law is at the same struggle that Kafka had. Carrying the weight of both, the clothed façade and true self, first being the morality guide and later the states will, and not being neither, international law is self-isolated from the real world, as Gregor Samsa was. Hence, this is not the paper of secularization, no customs, no higher purpose, nothing except the will of states, that can be constantly renewed with the signifier and signified being linked and re-linked. (shrink)

Georges Gurvitch, from the 1920s to the end of his life, was solving the problem of combining unity and plurality in the justification of society. He believed that individualism and collectivism represented social processes in a limited way because they were based on the preconception that the binding power of law derives respectively from a private or corporate actor's will. Gurvitch contrasted individual law with the social one, which was intended to overcome the opposition between individualism and collectivism. Social law (...) bases on legal sociology's assumption that social interactions as such are already legal relations. This conclusion allows Gurvitch to consider any social interaction as a source of law and to assert legal pluralism as a way of constructing society. The integrity of the latter is a condition for the mutual correlation of the multiplicity of legal regulations generated by internal social interactions into the unified structure of social law. In a holistic approach to comprehending social interactions, Gurvitch, in his Russian-language works in the migr period, uses the philosophical-legal interpretation of sobornost to describe society's integrity. In French- and English-language works from the 1930s, Gurvitch uses the term "totality," which he learned from Marcel Mauss, to describe social integrity. This article compares sobornost and totality as variants of denoting social integrity in Gurvitch's social law doctrine. The researcher determines that Gurvitch, using the concepts of sobornost and totality, interpreted society's development differently, 1) as anti-hierarchical sobornost equality, and 2) as a hierarchical inordination of totalities. Having analyzed the peculiarities of the interpretation of sobornost and totality in Gurvitch's works, the author concludes that these concepts should be considered multilingual equivalents in denoting communal unity as sources of law, which reflect changes in the interpretation of society in Gurvitch's social law doctrine. (shrink)

This essay presents an interpretation of the juridical thought of Cicero, Hugo Grotius and Adam Smith. Focussing upon questions of property, capital accumulation and violence, the essay traces a tension within their writings between a social ethic of human fellowship and compassion, and, a theory of the utility of ‘unsocial’ commercial self-interest. This tension forms a key problem for the tradition of liberal international law. For Grotius and Smith one response to this tension is to attempt to reign (...) in capitalist markets by asserting a range of moral duties to individuals and to the nation-state. The importance of stressing such an interpretation is to reject the flattening-out of the liberal political and juridical tradition by contemporary neoliberal thought, and to reclaim a number of ways of thinking about the global economy and international law in which moral action and political intervention are understood as playing a necessary and essential role. (shrink)