New York University School of Law Institute for International Law and Justice (IILJ) History and Theory of International Law Series Working Paper No. 2003/1
This paper reviews major directions in the recent scholarship of international law. Commissioned for the Oxford Handbook of Legal Studies (Peter Cane and Mark Tushnet, eds., Oxford University Press, 2003), it is highly synoptic, being limited to 10,000 words and 30 references. It argues that the Anglo-French scholar-practitioner focus on disputes and on third-party settlement, with its associated positivist theory, has dovetailed with broader U.S.-led problem-solving approaches in encouraging the development of several useful legal concepts: sustainable development; international criminal responsibility; transnational civil responsibility; a renewed exclusivity of domestic jurisdiction; and an expanding but precarious concept of a unified international legal system. But the dominant positivist theoretical structure that has held international legal practice together now encounters internal critiques of some of its core concepts such as statism, national interest, and instrumental rationality, as well as external challenges from critical, neo-Marxist, and constructivist perspectives. Its viability is seriously in question, unless it can be deepened and renovated through current efforts to address such issues as legitimacy and democracy in international governance; the roles and approaches of major states such as the U.S.; and the more general functions of normativity in international order. A proposal for rethinking the concept of international law is outlined. It is argued that the Grotian integration of theory and practice is a valuable and distinctive feature of international law, that there are ethical arguments for the predominant positivist positions which this problem-solving engagement with practice has fostered, that problems such as moral injustice and lack of legitimacy now require a richer approach to international law rules and process in an era of deepening international governance, and that a Grotian conception of international law which integrates sources-based and content-based criteria provides a promising way forward.
Date of Authorship for this Version
International Law, History and Theory of Law
Kingsbury, Benedict W., "The International Legal Order " (2005). New York University Public Law and Legal Theory Working Papers. 6.