Jump to ContentJump to Main Navigation
From Bilateralism to Community InterestEssays in Honour of Bruno Simma$
Users without a subscription are not able to see the full content.

Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder

Print publication date: 2011

Print ISBN-13: 9780199588817

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199588817.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 27 February 2020

A Political Theory of Law: Escaping The Aporia of the Debate on the Validity of Legal Argument in Public International Law

A Political Theory of Law: Escaping The Aporia of the Debate on the Validity of Legal Argument in Public International Law

Chapter:
(p.58) A Political Theory of Law: Escaping The Aporia of the Debate on the Validity of Legal Argument in Public International Law
Source:
From Bilateralism to Community Interest
Author(s):

Ulrich Fastenrath (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588817.003.0007

This chapter conceptualizes the political theory of law as an open system of norms. Neither its elements nor the meaning of its norms are fixed. Thus, the legal order is at no time a bulk of definite or even definable commands. Neither are the norms understood by the different actors in a uniform way, nor is the legal order free of self-contradictions. Rather, it consists of competing legal assertions that are partly decided through authoritative processes, partly in other ways, but can also exist undecided alongside each other. Nevertheless, the different actors are trying to establish their legal assertions. Due to the openness of law the validity of a legal assertion can neither be attributed in a logically compelling way to legal utterances, nor will this be the outcome of a deliberative discourse as hypothesized in Habermas' concept of communicative rationality. In fact, it is a political process which decides on the success of legal assertions. This applies to both legislative and interpretative law-making, the latter conceived as a struggle of legal assertions for becoming effective.

Keywords:   political theory of law, open system, norms, legal assertions, communicative rationality

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .