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Vol 21 No 11 Nov/Dec 2016

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Institutional Problem in Modern International Law


ISBN13: 9781849465229
Published: September 2016
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £55.00



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Since the end of the nineteenth century, international law has been widely understood as an autonomous legal order, similar in nature if, importantly, not in structure to law within the state.

Whilst this understanding has bolstered the professional identity of international legal practice, it has come at the price of a perpetual sense of structural deficiency over the decentralised institutional nature of the international legal order.

To maintain the claim to legal autonomy, it has been common to read into the international legal order forms of normative hierarchy accompanied by functional constitutional substitutes (of a legislative, executive, or adjudicative nature).

In this book, the author engages critically with the self-defeating nature of these constitutional substitutes, explaining the irresolvable nature of this "institutional problem" as well as the shortcomings of the kind of Rule of Law idealism from which the problem arises in the first place.

Instead, the book sets out a plea for international lawyers to understand the purpose and potential of international law on its own terms, whilst at the same time challenging the coherence of the domestic legal paradigm against which its institutional structures are commonly found wanting.

Subjects:
Public International Law
Contents:
Part I: Origins
1. A Fragile Autonomy: International Law at the Turn of the Twentieth Century
2. Scepticism and Renewal: International Law in the Inter-bellum Period
3. The Institutional Problem in Modern International Law

Part II: Cause
4. Presuming Hierarchy: The Problematic Concept of the Legal Official
5. A Functional Jurisprudence? Methodological Controversies in Contemporary Legal Theory
6. Law's 'Creation Myth': Instrumental Reasoning and the Necessary Autonomy of Law

Part III: Effect
7. Domestic Analogy, the Rule of Law and the Relations Between States
8. Form and Function in the Institutionalisation of International Law
9. International Law as Governance: An Emerging Legitimacy Crisis?