García-Salmones: Sources in the Anti-Formalist Tradition: A Prelude to Institutional Discourses in International Law

Mónica García-Salmones (Univ. of Helsinki - Law) has posted Sources in the Anti-Formalist Tradition: A Prelude to Institutional Discourses in International Law (in The Oxford Handbook on the Sources of International Law, Samantha Besson & Jean d'Aspremont eds., forthcoming). Here's the abstract:

This chapter traces the legal and political principles of two important schools of the 20th century, the New Haven School and the School of Carl Schmitt and situates them in their geographical and historical contexts. It argues that both traditions were informed by a keen awareness of the earthquake caused in the international legal order by the collapse of the European empires after the 1930s. The contribution analyses commonalities, and specially differences in their political projects. It further argues that reaction against a naïve positivism reigning during the past century in international law essentially determined the development in both schools’ understanding of the concept of sources of law. Another important factor in that endeavor was the peculiar geo-political projects of each school. In the discussion of Schmitt the chapter focuses on sources of domestic law and seeks to understand the relationship between the sources of domestic and international law as Schmitt saw it through the notion of ‘concrete order thinking’. Finally the chapter also tackles on the common point of New Haven and Schmitt in connecting sources of law with politics, international organisations and institutions. The chapter concludes that both schools’ legal principles and theory of legal sources are worth analyzing today due to the intensification of an institutional discourse — envisaged by both schools — in international law and in the discussion of the sources of law.