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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 Foundations of Formal Ascertainment of International Law: The Social Thesis

The Foundations of Formal Ascertainment of International Law: The Social Thesis

Chapter:
(p.195) 8 The Foundations of Formal Ascertainment of International Law: The Social Thesis
Source:
Formalism and the Sources of International Law
Author(s):

d'Aspremont Jean

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199696314.003.0008

Chapter 7 has broached some avenues to revitalize the current law-ascertainment criteria in international law by moving away from intent but did not provide any indication as to the foundations of such formal law-ascertainment criteria. This is the object of chapter 8 which argues that any set of formal yardsticks of law-ascertainment shaped through ordinary language would remain inextricably beset by the indeterminacy of language if it were not grounded in the social practice of those who apply them. This chapter thus turns to the foundations of law-ascertainment in the theory of the sources of international law and, trying to offset the anti-theoretical bent of the international legal scholarship, demonstrates the possibility of constructing a theory of formal law-ascertainment grounded in the social practice of law-applying authorities. In doing so, this chapter seeks to rejuvenate the social thesis as it has been elaborated in English analytical jurisprudence by borrowing from a variety of thinkers like Wittgenstein and Tamanaha. This brings it to argue that the concept of international law-applying authorities must be broadened as to include a whole new series of international actors. It also points to the vainness of the question of the validity of international law as a whole. It simultaneously shows that the social thesis, if adequately rejuvenated in the framework of the theory of sources of international law, can continue to benefit from the insights from sociological studies, critical legal studies, third world approaches or feminist critiques and is surely not incompatible with them.

Keywords:   social thesis, Wittgenstein, Tamanaha, analytical jurisprudence, international actors, critical legal studies, sociology, feminism

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