Philosophy of International Law

Philosophy of International Law

Anthony Carty
Copyright Date: 2007
Pages: 272
https://www.jstor.org/stable/10.3366/j.ctt1r26tq
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  • Book Info
    Philosophy of International Law
    Book Description:

    A fundamental challenge to the foundations of the discipline of international law, this book offers an internal critique of the discipline of international law whilst showing the necessary place for philosophy within this subject area.

    eISBN: 978-0-7486-2813-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-v)
  3. PREFACE AND ACKNOWLEDGMENTS
    (pp. vi-xii)
  4. 1 WHAT PLACE FOR DOCTRINE IN A TIME OF FRAGMENTATION?
    (pp. 1-25)

    I intend to begin simply by referring to two recent French works, the Dictionnaire encyclopédique de théorie et de sociologie du droit and a colloquium organized by the legal history department of the University of Picardie (Amiens), La Doctrine juridique. The first provides us with an authoritative and vital distinction between legal doctrine and legal dogmatics, while the second explains the problematic of keeping the former alive.

    The French dictionary distinguishes doctrine from ‘dogmatique juridique’ (legal dogmatics). The former is defined as ‘opinion, theory or thesis,’ while the latter means the domain of the science of law concerned with the...

  5. 2 CONTINUING UNCERTAINTY IN THE MAINSTREAM
    (pp. 26-78)

    There is no consensus among International lawyers on a workable or operable concept of general customary law, supposed to be the fundamental source of an international law binding upon states. It is thought to represent an analytical framework within which one can assess whether states recognize a rule, principle, or practice as binding upon them as law. Jurists are to examine the same ‘raw material’ of international relations as diplomats, statesmen, historians, and political scientists. Yet according to the most orthodox view, expressed in the jurisprudence of the ICJ the jurists are to find that states have, in some sense,...

  6. 3 INTERNATIONAL LEGAL PERSONALITY
    (pp. 79-109)

    In the Case Concerning a Frontier Dispute (Burkina Faso and the Republic of Mali) the International Court of Justice noted that, given the acceptance of the principle of uti possidetis juris (reliance upon former colonial administrative boundaries) in the case by both parties it was not necessary to show that the principle was firmly established in international law where decolonization was involved. Nevertheless, the Court insisted that uti possidetis juris is a general principle of international law which exists to prevent the stability of new states being endangered by fratricidal struggles, themselves provoked by the challenging of frontiers following the...

  7. 4 THE USE OF FORCE
    (pp. 110-139)

    In his magisterial introduction to international law, The Law of Nations, James L. Brierly quotes at length the French international lawyer Albert De Lapradelle on the significance of Vattel, whose text Le Droit des gens, published in 1758, is usually regarded as the standard founding statement of modern international law. The Frenchman praises Vattel for having written in advance of the events which the book represents, the principles of 1776 and 1789, of the American and French Revolutions. Vattel is credited with projecting onto the plane of the law of nations the principles of legal individualism. Vattel has written the...

  8. 5 AMERICAN LEGAL CULTURES OF COLLECTIVE SECURITY
    (pp. 140-162)

    I wish to present a perspective from American culture and history, which may help to explain dominant American tendencies to resort to the unilateral use of force to resolve what Americans take to be demands of their national security. This is very far from wishing to deny the importance of international law, either as an intellectual construct or as an ideological weapon. Indeed, the wider cultural, historical analysis is intended to demonstrate the contrary. International law language is the final battleground in the struggle for legitimacy, which always accompanies the use of force. Nonetheless, international law is plagued by the...

  9. 6 MARXISM AND INTERNATIONAL LAW
    (pp. 163-192)

    Rumors of the death of socialism have been, oddly enough, accompanied by rumors of the disappearance of the United States. Poststructuralists tell us that we are all victims now but that, somehow, the multitude will arise against ‘the Powers.’ Power enslaves us all in its impersonality, but resistance is everywhere. A primary focus of this study is Michael Hardt and Antonio Negri’s Empire, a poststructuralist and, at the same time, postmarxist critique of globalization.¹ This chapter will argue against those authors that an updated theory of capitalist imperialism convincingly captures the contemporary international scene. The brutal power of the United...

  10. 7 RESISTANCES TO THE NEOLIBERAL INTERNATIONAL ECONOMIC ORDER
    (pp. 193-220)

    Given a picture of contemporary international society, which is dominated by the US, whose central significance for a philosophy of international law has been presented in the last two chapters, the question arises how to understand the same subject as it is presented by contemporary American scholars, both lawyers and political philosophers. Such authors as Allen Buchanan and David Golove,¹ Fernando Teson,² and, of course, John Rawls himself,³ present a closely reasoned agenda for what they call the democratization of international society, setting out conditions for the legitimacy of states, which are marked by human rights standards that can themselves...

  11. 8 FROM AN ORDER OF FEAR TO ONE OF RESPECT
    (pp. 221-248)

    The predominant anthropology for the place of law in international relations, whether on the side of state sovereignty or international organization, or constitution, has been a radically subjectivist, individualist one. The state of nature, in which sovereign states still find themselves, is reinforced by predatory doctrines of pre-emption in the area of national security and of relentless expansion in the area of economic activity, itself continuously dominated by security interests.¹ This analysis may not be disputed by legal internationalists or constitutionalists. They continue to set themselves the task of harnessing the beast of the state, Aron’s ‘cold monsters,’ into a...

  12. INDEX
    (pp. 249-260)