This paper considers the theory and politics of international legal formalism. I argue that when contemporary international lawyers insist upon the need to "revive" legal formalism, or at least to take the formalist tradition more seriously than has been the case during the past half century, their appeals generally fall flat. Formalism, as conventionally understood, is nearly always framed as a relic of the past, an outdated and deeply suspicious modernist sensibility that ought to be derided, dismissed, or denounced. Yet, I argue, this is not the only (or even the most significant) problem, for to demand the "resuscitation" of legal formalism is to miss the more fundamental point that a certain commitment to formality - an alertness and sensitivity to the power of rationalization - is unavoidable when dealing with law. I propose that we acknowledge the full implications of the insight that international law is at one and the same time fed by extra-legal dynamics and informed by "relatively autonomous" structures of its own. Broached from this broader socio-legal perspective, anti-formalism today should be understood not as a grand theoretical innovation, to be lauded or lambasted, but as a piece of commonplace wisdom, fully capable of being absorbed into any "neo-formalism" that has come to terms with the legal realist challenge, distanced itself from artificial models of internal coherence and immanent intelligibility, and adopted the crucial, if somewhat prosaic, goal of supplying weaker actors with at least a limited measure of defensive tools.
Saturday, January 23, 2016
Özsu: Legal Form
Umut Özsu (Univ. of Manitoba - Law) has posted Legal Form (in Fundamental Concepts for International Law: The Construction of a Discipline, Jean d’Aspremont & Sahib Singh eds., forthcoming). Here's the abstract: