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Formalism and the Sources of International LawA Theory of the Ascertainment of Legal Rules$
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Jean d'Aspremont

Print publication date: 2011

Print ISBN-13: 9780199696314

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199696314.001.0001

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The Emergence of Formal Law-Ascertainment in the Theory of the Sources of International Law

The Emergence of Formal Law-Ascertainment in the Theory of the Sources of International Law

Chapter:
(p.38) 3 The Emergence of Formal Law-Ascertainment in the Theory of the Sources of International Law
Source:
Formalism and the Sources of International Law
Author(s):

d'Aspremont Jean

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199696314.003.0003

This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20th and early 21st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.

Keywords:   legal theory, Hobbes, Bentham, Austin, Kelsen, Hart, formalism, constitutionalism

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