The Rule of Unwritten International Law: Customary Law, General Principles, and World Order (Routledge Research in International Law)

Présentation de l'éditeur : "This book seeks to re-appreciate the concept of customary international law as a form of spontaneous societal self-organisation, and to develop the methodological consequences that ensue from this conception for the practice of its application. In pursuing this aim, the author draws from three different strands of scholarship that have not yet been considered in connection with one another: First, general jurisprudential theories of customary law; second, theories of customary international law, especially as they relate to international relations scholarship; and third, methodological approaches to the interpretation of international law. This expansive, philosophical layout of the book enables the author to put the conceptual enigmas of customary international law into a broader perspective. Among the issues discussed in the book are the dichotomy of its traditional and modern forms and the respective benefits and disadvantages of inductive and deductive approaches to its ascertainment. In the course of this analysis, the author draws insights from Friedrich August Hayek's theory of law as a 'spontaneous order', an information-processing device which enables the participants of a legal system to make use of decentralised knowledge. The book argues that the major advantage of custom as a source of international law lies in the fact that it is the result of a gradual process of trial and error, rather than the product of deliberate planning. This makes it a particularly apposite source of law in a time of seismic shifts in the distribution of power within a vastly diverse community of States, when a new global order is expected to emerge, the contours of which are not yet clearly discernible. This book applies general concepts of legal philosophy to explain the continuing relevance of custom as a source of international law while at the same time inferring from this theoretical framework concrete practical and methodological consequences, the most important of which is the special role that purposive interpretation plays with respect to rules of international custom. Given this broad approach, the book will be of interest to several groups of potential readers including academics interested in the philosophy of customary law in general, academic international lawyers and legal practitioners, especially judges, scholars of international relations and all those interested in how the international community of States organises itself." Présentation de l'éditeur : "This book seeks to re-appreciate the concept of customary international law as a form of spontaneous societal self-organisation, and to develop the methodological consequences that ensue from this conception for the practice of its application. In pursuing this aim, the author draws from three different strands of scholarship that have not yet been considered in connection with one another: First, general jurisprudential theories of customary law; second, theories of customary international law, especially as they relate to international relations scholarship; and third, methodological approaches to the interpretation of international law. This expansive, philosophical layout of the book enables the author to put the conceptual enigmas of customary international law into a broader perspective. Among the issues discussed in the book are the dichotomy of its traditional and modern forms and the respective benefits and disadvantages of inductive and deductive approaches to its ascertainment. In the course of this analysis, the author draws insights from Friedrich August Hayek's theory of law as a 'spontaneous order', an information-processing device which enables the participants of a legal system to make use of decentralised knowledge. The book argues that the major advantage of custom as a source of international law lies in the fact that it is the result of a gradual process of trial and error, rather than the product of deliberate planning. This makes it a particularly apposite source of law in a time of seismic shifts in the distribution of power within a vastly diverse community of States, when a new global order is expected to emerge, the contours of which are not yet clearly discernible. This book applies general concepts of legal philosophy to explain the continuing relevance of custom as a source of international law while at the same time inferring from this theoretical framework concrete practical and methodological consequences, the most important of which is the special role that purposive interpretation plays with respect to rules of international custom. Given this broad approach, the book will be of interest to several groups of potential readers including academics interested in the philosophy of customary law in general, academic international lawyers and legal practitioners, especially judges, scholars of international relations and all those interested in how the international community of States organises itself." Cover -- Half Title -- Title Page -- Copyright Page -- Table of Contents -- Preface -- I. Introduction -- A. The Rule of Unwritten International Law: A Pragmatic Ideal -- B. Structure of the Book -- II. Unwritten Law as Self-Organisation: A Historical Perspective -- A. Aristotle's Concept of Practice -- B. Medieval Receptions of Aristotelianism: Thomas Aquinas and the Common Law-Tradition -- C. Kant, Adam Smith and Savigny: Unlikely Allies on Self-Organisation -- III. Theoretical Problems and Methodological Approaches -- A. The Legacies of Legal Realism -- B. Kelsen and the Grundnorm of Customary International Law -- C. Deduction, Induction, and the Search for a 'Rule of Recognition' -- D. Unwritten International Law as a 'System' -- E.A 'Spontaneous Order' -- F. The Task of the Practitioner -- IV. The Quest for Objectivity -- A. Two Concepts of Objectivity -- B. The Case Method and the Concretisation of Abstract Rules and Principles -- C. The Problem of Objectivity in Practice - Domestic and International -- D. Objectivity through Judicial Dialogue? -- E.A Diversity of Methods: The Example of State Immunity -- F. Time's Arrow: Judicial Activism or Self-Restraint? -- G. The Centrality and Elusiveness of the Concept of 'Purpose' in Unwritten International Law -- V. The Riddle of Purposive Interpretation -- A. Conceptual and Terminological Issues -- B. Purposive Interpretation of Treaties - General Aspects -- C. The Problem of Multiple Purposes -- D. The Method of 'Typical' (or Cross-Treaty) Interpretation -- E. The Principle of Systemic Integration or the 'Concentric Encirclement' of Purpose -- F. Barak's Theory of Purposive Interpretation as a Bridge from Written to Unwritten Law -- G. The Concept of 'Purpose' in Customary International Law -- H. Purposive Interpretation of Customary International Law by International and Domestic Courts Contents Preface I Introduction II Unwritten Law as Self-Organisation: A Historical Perspective III Theoretical Problems and Methodological Approaches IV The Quest for Objectivity V The Riddle of Purposive Interpretation VI Analogical Reasoning and the Recognition of General Principles of Law VII Conclusion: The Dialectics of World Public Order Bibliography Index