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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 Critiques of Formal Law-Ascertainment in the Theory of the Sources of International Law

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

Chapter:
(p.83) 4 The Critiques 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/9780199696314.003.0004

Following the same pattern as the previous chapter, this chapter explores the critiques of formal law-ascertainment first in general legal theory and then in the theory of international law. It starts with the criticisms found in general legal theory, and draws in particular on modern natural law objections, those of legal realism, Dworkin’s famous attack on the source and social theses as well as the postmodern criticisms thereof. The chapter then turns to the contestations of formal law-ascertainment in the theory of the sources of international law. It especially draws on the remnants of substantive validity theory in international legal scholarship, the turn to pragmatism of international realism, the turn to instrumentalism of the New Haven School and those approaches to international law that are inspired by critical legal studies and deconstructivism in international law.

Keywords:   modern natural law, legal realism, Dworkin, Postmodernism, critical legal studies, deconstructivism, substantive validity, international realism, New Haven School

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