Experimental Insights for International Legal Theory

2019 ◽  
Vol 30 (4) ◽  
pp. 1237-1262
Author(s):  
Anne van Aaken
Keyword(s):  
Experimental Evidence ◽  
International Law ◽  
International Cooperation ◽  
Social Order ◽  
Legal Theory ◽  
Building Blocks ◽  
International Theory ◽  
Psychology And Economics ◽  
Constructivist Approaches ◽  
Theoretical Standpoint

Abstract Insights from experimental psychology and economics have rarely been applied to the study of international law and never to the study of international legal theory. This article applies them to socio-legal international theory that has grosso modo two important background paradigms with several variants: rationalist and constructivist. In both paradigms, the interest in understanding and explaining international law by uncovering causal mechanisms in international cooperation and compliance and in asking how cooperation is sustained in a system as decentralized as international law is paramount. In both, fundamental assumptions regarding the behaviour of actors are made. However, regardless of the theoretical standpoint, both fall short of experimental evidence about their behavioural assumptions. The article uses experimental evidence provided by public good games as a conceptualization of how social order is constructed and upheld in systems without central authority such as international law. It aims to illuminate the behavioural basis of important building blocks of international cooperation and law by discussing the preferences of states and strategic interaction, reciprocity, sanctions, communication and trust as well as consent and legitimacy, reflecting on what the experimental insights teach us on the assumptions of rationalist and constructivist approaches to international legal theory. These experiments are one means to test behavioural assumptions in international legal theory.

scholarly journals Fatal attraction: a critique of Carl Schmitt's international political and legal theory

2011 ◽  
Vol 3 (2) ◽  
pp. 179-227 ◽  
Author(s):  
Benno Gerhard Teschke
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Explanatory Power ◽  
Law And Order ◽  
Counter Narrative ◽  
International Theory ◽  
History Of ◽  
History Of International Law ◽  
Intellectual Product ◽  
International Thought

The ongoing Schmitt revival has extended Carl Schmitt's reach over the fields of international legal and political theory. Neo-Schmittians suggest that his international thought provides a new reading of the history of international law and order, which validates the explanatory power of his theoretical premises – the concept of the political, political decisionism, and concrete-order-thinking. Against this background, this article mounts a systematic reappraisal of Schmitt's international thought in a historical perspective. The argument is that his work requires re-contextualization as the intellectual product of an ultra-intense moment in Schmitt's friend/enemy distinction. It inscribed Hitler's ‘spatial revolution’ into a full-scale reinterpretation of Europe's geopolitical history, grounded in land appropriations, which legitimized Nazi Germany's wars of conquest. Consequently, Schmitt's elevation of the early modern nomos as the model for civilized warfare – the ‘golden age’ of international law – against which American legal universalism can be portrayed as degenerated, is conceptually and empirically flawed. Schmitt devised a politically motivated set of theoretical premises to provide a historical counter-narrative against liberal normativism, which generated defective history. The reconstruction of this history reveals the explanatory limits of his theoretical vocabulary – friend/enemy binary, sovereignty-as-exception, nomos/universalism – for past and present analytical purposes. Schmitt's defective analytics and problematic history compromise the standing of his work for purposes of international theory.

Part II Approaches, Ch.25 Kant, Cosmopolitanism, and International Law

2016 ◽  
Author(s):  
Werner Wouter ◽  
Gordon Geoff
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Categorical Imperative ◽  
History Of Ideas ◽  
Important Place ◽  
International Theory ◽  
History Of ◽  
Kantian Philosophy ◽  
The Way

This chapter explores the way in which Kantian ideas have been adopted and transformed in contemporary international law and international theory, with the twofold aim of introducing some core topics on Kantian philosophy, cosmopolitanism, and international law, as well as demonstrating the importance of acknowledging different forms of cosmopolitanism at work in international law, thereby shedding new light on the ‘forgotten’ tradition of innate cosmopolitanism. The work of Kant not only occupies an important place in the history of ideas in international legal theory; his work also constitutes an enduring source of inspiration for widely diverging contemporary approaches to international law. On that note, the chapter references four core Kantian ideas incorporated in contemporary cosmopolitan thinking: the categorical imperative, the roughly contractual notion of a federation of free republics, the conception of a cosmopolitan right of hospitality, and the idea of an innate cosmopolitanism.

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

Altruistic Punishment: The Golden Keystone of Human Cooperation and Social Stability?

2020 ◽  
Vol 42 (2) ◽  
pp. 255-284
Author(s):  
Peter Lewisch
Keyword(s):  
Social Norms ◽  
Experimental Evidence ◽  
Social Order ◽  
Social Stability ◽  
Altruistic Punishment ◽  
Costly Punishment ◽  
Open Questions ◽  
Experimental Findings ◽  
Emotional Basis ◽  
Instrumental Goal

Abstract ‘Altruistic punishment’ (i.e., costly punishment that serves no instrumental goal for the punisher) could serve, as suggested by the pertinent experimental literature, as a powerful enforcer of social norms. This paper discusses foundations, extensions, and, in particular, limits and open questions of this concept-and it does so mostly based on experimental evidence provided by the author. Inter alia, the paper relates the (standard) literature on negative emotions as a trigger of second party punishment to more recent experimental findings on the phenomenon of ‘spontaneous cooperation’ and ‘spontaneous punishment’ and demonstrates its (tight) emotional basis. Furthermore, the paper discusses the potential for free riding on altruistic punishment. While providing valuable insights into the understanding of social order, ‘altruistic punishment’ is thus not the golden keystone of social stability.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

Diplomatic Affairs and International Law, 1913

1914 ◽  
Vol 8 (1) ◽  
pp. 25-49
Author(s):  
Alfred L. P. Dennis
Keyword(s):  
International Relations ◽  
International Law ◽  
International Cooperation ◽  
Economic Loss ◽  
Panama Canal ◽  
Military Operations ◽  
Political Leaders ◽  
The Past ◽  
True Value

War has marked the year 1913; and charges and countercharges as to alleged atrocities by belligerents have been rife. Treaties were drawn to be promptly torn up; and solemn declarations of intention and policy often proved futile. The existence of internal disorder and the outbreak of domestic revolutions in several countries have also exerted disturbing influences on international relations. The result was economic loss and diplomatic tension even well beyond the field of military operations. And these conditions have led to renewed activity in the struggle for concessions and investment in renascent communities. Racial and religious sentiments have also aroused bitter feeling; while political leaders in several countries compel renewed consideration of the weight of individuals in the determination of the world's affairs.In large part the problems of 1913 were historic; but in part they were affected by apparently impending changes which we cannot as yet define. Thus the influence of socialism and of various forms of radical thought on international relations is a factor. The adoption of oil as a naval fuel, the opening of the Panama Canal, the plans for administrative reorganization of Turkey, and its capitalistic development, the renewed debate as to the Monroe doctrine, and the problem of China are all matters whose future significance scarcely concern us here; but their influence in the past year has been unquestionably great. We cannot estimate as yet the true value of many recommendations touching various fields of international coöperation; and the value of delay in international action still remains in dispute. So on the whole the year 1913 has apparently been the year of the cynic.

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

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