Law - Heresies of International Law, Scobbie.docx

5 Pages
Unlock Document

Western University
Political Science
Political Science 3201F/G
Dan Bousfield

SOME COMMON HERESIES ABOUT INTERNATIONAL LAW: SCOBBIE  International law does not exist in an intellectual vacuum  Law attempts to provide authoritative models of how people should behave  Instrumental approaches to international law that do not exhaust the scope of theoretical writing THEORY MATTERS  An understanding of legal theory is crucial to the legal enterprise and to the practical applicable of the law  Disavowal of theory could simply be seen as a conservative commitment to a hidden or latent theory that rests content with the status quo and seeks neither to question nor justify either the substance or practice of international law  International law is not law but merely amounts to positive morality, this view is no longer generally accepted  A theory is defined as a collection of rules even of practical rules, is termed a theory if the rules are envisaged as principles of a fairly general nature, and if they are abstracted from numerous conditions which, nonetheless, necessarily influence their practical application  Kant cautions however that a theory is not enough. The abstract knowledge provided by a theory must be supplemented by an act of judgement whereby the practitioner distinguishes instances where the rule applies from those where it does not  Nevertheless a theory is necessary because it provides us with the intellectual blueprint necessary to understand the work or some specific aspect of human affairs  Theory makes data comprehensible by providing a structure for the organization of a given discipline or body of knowledge  Hart claimed that international law not only lacks the secondary rules of change and adjudication which provide for legislature and courts but also a unifying rule of recognition specifying sources of law and providing general criteria for the identification of its rules  Hart defines the rule of recognition as a public, common standard of correct judicial decision  Much contemporary theoretical analysis of international law is precisely concerned with the investigation of the sources of international law  The identification of sources is the determination of general principles which classify phenomena such as documents, the statements and behavior of international actors and so on, as relevant or irrelevant to the enterprise of international law  Higgins, in domestically legal systems the sources of legal obligation are treated in a much more matter of fact way  There is a general consensus on core sources of doctrinal disagreement attaching to specific but nonetheless important issues – such as the very existence and potential effects of the doctrine of persistent objection to the formation of customary international law  Roles of sovereignty and State consent in the formation of customary international law  Stein emphasized state sovereignty and the central premise of international law theory  Although textually  Although textually sound the positivist approach fails to reflect the realities underlying uses of force. It evidences misguides fidelity to the failed constitutive endeavour to establish a Charter security schema that would generally dispense with the need for unilateral uses of force  Identifying authorial dispositions is crucial to evaluating the weight to be given to an argument  A document’s legal significance can depend on its author, because its author is a judge. Legal texts and their authors only make sense within the context of the system that gives them authority and meaning  Legal texts, unlike literary texts form parts of an interlocking system of meaning and are not free radicals that bear the meaning anyone chooses to put upon them  Legal texts on the other hand, do need to have an identifiable meaning, or range of acceptable meanings because law is an instrumental activity aimed at practical outcomes THE LEGAL STRUCTURE  The New Haven goal of clarifying and implementing a world order of human dignity could be seen as falling squarely within this notion  New Haven is the pursuit of an imposed higher norm the defence and maintenance of liberal democracy as a bulwark against the spread of communism NEW HAVEN SCHOOL  The genesis of New Haven lay in the second world war and the emergence of communism as an international political force  War is the time to retool our educational processes in the hope of making them fit instruments for their future job  The proper function of our law schools is, in short, to contribute to the training of policymakers for the ever more complete achievement of the democratic values that constitute the professed ends of American polity  The law school curriculum should aim towards the implementation of clearly defined democratic values in all the areas of social life where lawyers have or can assert responsibility  Despotism breed societal instability given the climate of fear and uncertainty in which totalitarian leaders emerge and which they must survive  This goal reflects the New Haven School’s basis in and intended refinement of the American legal realist school of jurisprudence and its intertwining of law and the social sciences, especially economics  Judicial decisions could not lay claim to be simply the inexorable application of the law to the issue in question  Realism, contrary to formalism laid stress on the social consequences of the law which should be taken into account in judicial decisions and thus emphasized empiricism  Law was seen as a form of social engineering that could be used as a tool to attain desired societal goals  Law is continuing process of decisions involving choices aimed at realizing the common value of human dignity  The quest for human dignity necessitates the rejection of a model of law that comprises simply the neutral or impartial application of rules  Authority is
More Less

Related notes for Political Science 3201F/G

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.