The international legal system as a system of knowledge
International lawyers disagree over the proper understanding of several fundamental issues of international law, and genuinely so. Examples include the concepts of a legal norm and legal interpretation, and the relationship between different spheres of regulation. Lawyers themselves would often seem to have only a very faint idea of what eventually provokes this disagreement, which makes further constructive debate very difficult. This Project brings knowledge that should help to fill this void and thus improve conditions for a more productive legal discourse.
As the Project maintains, lawyers construct knowledge of international law differently. Legal knowledge presupposes some notion of a legal system. This notion is an ideal; it is the belief that some precise way of organizing single pieces of legal knowledge is desirable and worth aspiring to. Any such notion of a legal system derives from a conception of law. This Project departs from the common tripartite categorization of international lawyers as defending either a legal positivist’s, a legal idealist’s or a legal realist’s conception of law. As argued, lawyers will construct knowledge of international law differently, depending on which one of these three conceptions of law that they take for granted. It is the objective of the Project to establish this claim and to explore how different notions of an international legal system play out in legal practice.
Final report
I started the book project by recalling the fact that lawyers and scholars construct knowledge about international law very differently. I attempted something of a tentative explanation of this fact by pointing to the existence of two fundamental relationships. First, international legal knowledge is dependent on the existence of a “notion of an international legal system”, by which I mean an idea of how single legal propositions should be fitted together. Secondly, there is an inextricable relationship between a conception of law and a notion of a legal system. Thus, the legal positivist’s, the legal idealist’s and legal realist’s respective conception of law each entails a different notion of an international legal. As I inferred, it would not be very surprising if it were for precisely these reasons that lawyers have different ways of constructing knowledge about international law.
The book was motivated by my desire to establish properly this relationship between different conceptions of international law and different ways of constructing international legal knowledge. I approached this task by, first, identifying the precise notions of an international legal system entailed by legal positivism, legal idealism and legal realism. I referred to the outcome of this exercise as a ‘theory of the conditions for the formation of international legal knowledge’. Secondly, I demonstrated the wide practical implications of my theory for the understanding of a series of themes in legal practice, including the creation and further development of international law, the interaction of rules and principles, the individuation of norms, international legal hierarchy, the conflict of rules, the concpet of a special regime and the signifiance of disciplinary boundaries, legal interpretation, intertemporal law, the relationship between international and domestic law, international legal personality, jurisdictional conflict, and legality and legitimacy in international law.
These findings are significant inasmuch as they help to make the research of international law more rational. As of yet, the community of international legal researchers has been unable or unwilling to fully acknowledge the relationship between submitted legal propositions and a legal positivist’s, legal idealist’s or a legal realist’s frame of mind. To some extent, researchers give the impression of being largely unaware of the relationship. To some extent, they would seem to be reluctant to announce openly their presupposed conception of law. Although they are making structural claims that are ultimately dependent on a particular conception of law, they are expressing themselves as if their conception of law was the only one possible. This altogether has prevented a constructive exchange of legal opinions and a sound development of many topics.
By the publication of my findings, I expect to accomplish two things. First, I will enable a fuller understanding of the relationship between submitted legal propositions and a legal positivist’s, legal idealist’s or a legal realist’s frame of mind. Lacking a clear perception of this relationship, legal researchers will be unable to form an internally coherent position. Thus, they will run at all times the risk of arguing irreconcilable propositions. The occurrence of such propositions will impede the rationality of international legal research. Fellow researchers and other participants in international legal discourse will have difficulty identifying researchers’ positions. Even worse, they will have serious misgivings about whether researchers are actually clear about the bases of their propositions and whether these propositions represent any justified true beliefs.
Secondly, that publication of my findings will help legal researchers to engage more critically with the considerable divide between submitted legal propositions on many topics of international law. Ultimately, all legal propositions are dependent on a theory of law. In the case of some topics of international law, different conceptions of law prompt researchers to understand topics similarly. In other cases, a lawyer’s conception of law does make a difference. In those cases, this conception of law forms an important premise for the proposition or propositions that the researcher submits. Rational research requires that these premises be made explicit. If audiences have access to the submitted propositions of a researcher, but not to their necessary premises, these submissions will not enable the development of any justified true beliefs.
The book was motivated by my desire to establish properly this relationship between different conceptions of international law and different ways of constructing international legal knowledge. I approached this task by, first, identifying the precise notions of an international legal system entailed by legal positivism, legal idealism and legal realism. I referred to the outcome of this exercise as a ‘theory of the conditions for the formation of international legal knowledge’. Secondly, I demonstrated the wide practical implications of my theory for the understanding of a series of themes in legal practice, including the creation and further development of international law, the interaction of rules and principles, the individuation of norms, international legal hierarchy, the conflict of rules, the concpet of a special regime and the signifiance of disciplinary boundaries, legal interpretation, intertemporal law, the relationship between international and domestic law, international legal personality, jurisdictional conflict, and legality and legitimacy in international law.
These findings are significant inasmuch as they help to make the research of international law more rational. As of yet, the community of international legal researchers has been unable or unwilling to fully acknowledge the relationship between submitted legal propositions and a legal positivist’s, legal idealist’s or a legal realist’s frame of mind. To some extent, researchers give the impression of being largely unaware of the relationship. To some extent, they would seem to be reluctant to announce openly their presupposed conception of law. Although they are making structural claims that are ultimately dependent on a particular conception of law, they are expressing themselves as if their conception of law was the only one possible. This altogether has prevented a constructive exchange of legal opinions and a sound development of many topics.
By the publication of my findings, I expect to accomplish two things. First, I will enable a fuller understanding of the relationship between submitted legal propositions and a legal positivist’s, legal idealist’s or a legal realist’s frame of mind. Lacking a clear perception of this relationship, legal researchers will be unable to form an internally coherent position. Thus, they will run at all times the risk of arguing irreconcilable propositions. The occurrence of such propositions will impede the rationality of international legal research. Fellow researchers and other participants in international legal discourse will have difficulty identifying researchers’ positions. Even worse, they will have serious misgivings about whether researchers are actually clear about the bases of their propositions and whether these propositions represent any justified true beliefs.
Secondly, that publication of my findings will help legal researchers to engage more critically with the considerable divide between submitted legal propositions on many topics of international law. Ultimately, all legal propositions are dependent on a theory of law. In the case of some topics of international law, different conceptions of law prompt researchers to understand topics similarly. In other cases, a lawyer’s conception of law does make a difference. In those cases, this conception of law forms an important premise for the proposition or propositions that the researcher submits. Rational research requires that these premises be made explicit. If audiences have access to the submitted propositions of a researcher, but not to their necessary premises, these submissions will not enable the development of any justified true beliefs.