Call for Nominations: ASIL International Legal Theory Interest Group Scholarship Prize

The International Legal Theory Interest Group of the American Society of International Law is welcoming nominations for its International Legal Theory Scholarship Prize. Details are here.

van Aaken & Hirsch: International Legal Theory and the Cognitive Turn

Anne van Aaken (Univ. of Hamburg - Law) & Moshe Hirsch (Hebrew Univ. of Jerusalem - Law) have published International Legal Theory and the Cognitive Turn (Oxford Univ. Press 2025). The table of contents is here. Here's the abstract:

Significant changes in social sciences often herald changes in legal theory, including in international legal theory. In light of the cognitive turn in social sciences, this volume seeks to explore the implications of this ‘turn’ for international legal theories. Cognitive and behavioural studies are making inroads into international law literature and international policy-making, yet their implications for international legal theory remain under-explored. The book aims to fill this gap by systematically analysing if, to what extent, and how insights gained from cognitive-behavioural sciences influence the principal theoretical approaches to international law. The chapters indicate that while insights drawn from cognitive and behavioural literature often underlie or complement some international legal theories, interactions between some legal theories and cognitive-behavioural studies are characterized by tensions. Exploring the implicit and explicit cognitive-behavioural assumptions of international legal theories has the potential to build bridges between these fields.

Wentker: Neutrality in International Legal Thought

Alexander Wentker (Max Planck Institute for Comparative Public Law and International Law) has posted Neutrality in International Legal Thought (in Research Handbook on International Legal Theory and War, Tom Dannenbaum & Eliav Lieblich eds., forthcoming). Here's the abstract:

This chapter discusses the key debates surrounding neutrality that international legal thought has had to grapple with. It shows how international legal thought has made sense of an institution that has been shaped by States’ pragmatic mindset in developing and invoking it. The chapter analyses how scholarship has positioned and continuously re-positioned neutrality within a dramatically changing international order in which neutrality has proved stubbornly resilient. In doing so, the chapter demonstrates that, however marginal neutrality’s relevance to current international law may appear at first sight, theoretical reflection on neutrality helps in better grasping the current international legal regulation of war as a whole, and even structural developments in general international law beyond war.

Workshop: Transnational Legal and Political Theory

On May 17-18, 2024, the Baldy Center for Law and Social Policy at the School of Law, University at Buffalo, will host a workshop on "Transnational Legal and Political Theory," in person and online. Details are here.

Arvidsson & Jones: International Law and Posthuman Theory

Matilda Arvidsson (Göteborgs Universitet - Law) & Emily Jones (Newcastle Univ. - Law) have published International Law and Posthuman Theory (Routledge 2024). The table of contents is here. Here's the abstract:

Assembling a series of voices from across the field, this book demonstrates how posthuman theory can be employed to better understand and tackle some of the challenges faced by contemporary international law.

With the vast environmental devastation being caused by climate change, the increasing use of artificial intelligence by international legal actors and the need for international law to face up to its colonial past, international law needs to change. But in regulating and preserving a stable global order in which states act as its main subjects, the traditional sources of international law – international legal statutes, customary international law, historical precedents and general principles of law – create a framework that slows down its capacity to act on contemporary challenges, and to imagine futures yet to come. In response, this collection maintains that posthuman theory can be used to better address the challenges faced by contemporary international law. Covering a wide array of contemporary topics – including environmental law, the law of the sea, colonialism, human rights, conflict and the impact of science and technology – it is the first book to bring new and emerging research on posthuman theory and international law together into one volume.

Hamann & Bianchi: Penser différentes manières de penser. Théories de droit international

Andrea Hamann (Université de Strasbourg - Law) & Andrea Bianchi (Graduate Institute of International and Development Studies) have published Penser différentes manières de penser. Théories de droit international (Dalloz 2023). Here's the abstract:

Deux poissons nagent dans un étang. « Tu sais quoi ? », demande l’un des poissons. « Non, dis-moi », répond l’autre. « Je parlais l’autre jour avec une grenouille. Elle m’a dit que nous sommes entourés d’eau. Il paraît même que nous vivons dedans ! » Son ami le fixe, d’un air sceptique : « De l’eau ? Qu’est-ce que c’est ? Montre-moi l’eau ! »

Les juristes – et les internationalistes n’y font pas exception – ont tendance à se focaliser sur la pratique du droit, souvent sans accorder une attention soutenue aux théories sous-jacentes qui en déterminent pourtant la production et la mise en oeuvre. Ce livre se veut une tentative de remuer l’eau dans laquelle, en tant qu’internationalistes, nous nageons. Il propose une introduction à différentes approches du droit et sensibilités à son égard. Il invite en ce sens à engager le dialogue avec différentes manières de penser le droit international, afin de nous familiariser avec l’eau qui nous entoure et dont, bien souvent, nous ne sommes pas même conscients.

L’objectif principal de ce livre est ainsi de rendre accessibles aux universitaires, praticiens et étudiants certains des outils nécessaires à la compréhension de diverses théories du droit international, de leurs généalogies respectives, ainsi que des critiques qui leur ont été opposées. Il espère aiguiser la conscience et la sensibilité des internationalistes à l’égard de ces théories, qui se trouvent fréquemment rejetées hors de l’univers du « droit » proprement dit, mais dont on aurait tort de considérer qu’elles n’en relèvent pas. En effet, ce n’est qu’en nous familiarisant avec elles que nous, en tant qu’internationalistes, prenons conscience de l’importante mesure dans laquelle l’ensemble de leurs présupposés déterminent fondamentalement l’étude, l’analyse, l’enseignement et la pratique du droit international. Penser différentes manières de penser le droit international se veut ainsi une invitation faite aux internationalistes, et à quiconque s’intéresse à ectte discipline, à engager une réflexion sur les modes et modalités de production des connaissances, aussi bien dans le champ scientifique que dans la pratique sociale du droit international.

Hovell: The Elements of International Legal Positivism

Devika Hovell (London School of Economics - Law) has published The Elements of International Legal Positivism (Current Legal Problems, Vol. 75, pp. 71–109, 2022). Here's the abstract:

This article contains a plea for continuing attention to the elements of international legal positivism. Using the language of ‘elements’ deliberately plays on the positivist tendency to describe the legal discipline as a legal science. Yet law’s elements differ in important ways from the usual objects of scientific inquiry. Law’s method does not seek to address the structure and behaviour of the physical world, but that of a particular society with its own political polarities, structure and functions. The fact that international law inherits its positivist method from the domestic legal context therefore presents complications. While the adoption of positivism as international law’s predominant legal method was animated in part by a desire to provide international law with the imprimatur it needs to claim credibility as a legal system, it has also served as an impediment to international law’s development in a distinctive fashion from domestic law. International law’s attachment to the positivist method has at times extended to an attachment to certain presuppositions more closely associated with the development of the modern European state. This article takes the position that it is important to engage with international legal positivism on its own terms. Part I traces the lineage of three important traditions of international legal positivism (‘social thesis’ positivism, ‘system-based’ positivism and ‘teleological’ positivism) highlighting their different emphases and in doing so identifying key elements. Part II interrogates certain presuppositions sometimes associated with these traditions and considers whether it is appropriate to rethink or re-engineer these aspects in their application to the international legal system. While positivism is sometimes associated with ‘purifying’ law as a discipline, the article takes the position that the positivist method can only endure if complemented by a rich legal, political and social discourse focused on understanding its relationship to the elements of the international legal system, in particular, international law’s community, authority and functions.

Dunoff & Pollack: International Legal Theory: Foundations and Frontiers

Jeffrey L. Dunoff (Temple Univ. - Law) & Mark A. Pollack (Temple Univ. - Political Science and Law) have published International Legal Theory: Foundations and Frontiers (Cambridge Univ. Press 2022). The table of contents is here. Here's the abstract:

Over the past decades international affairs have been increasingly legalized. International law has dramatically expanded into new fields and taken on new challenges. Despite this development, there has been little in-depth scholarship on what impact these changes have had on the field of international legal theory, how it is taught, and where it is going. This volume investigates the major developments in the field and explores the core assumptions and concepts, analytical tools, and key challenges associated with different approaches. An outstanding team of legal academics provides an accessible overview of competing theoretical movements, and a more in-depth understanding of the strengths, preoccupations, insights, and limits of those schools of thought. The contributions provide an authoritative account of current thinking about the theoretical foundations of contemporary international law and will serve as an indispensable resource for students, scholars, and practitioners.

d'Aspremont: Two Attitudes towards Textuality in International Law: The Battle for Dualism

Jean d'Aspremont (Univ. of Manchester - Law; Sciences Po - Law) has posted Two Attitudes towards Textuality in International Law: The Battle for Dualism (Oxford Journal of Legal Studies, forthcoming). Here's the abstract:

This article sketches out two distinct attitudes towards textuality in international law, namely international hermeneutics and international poetics. It argues that these two attitudes towards textuality espouse very different types of dualism of thought. The difference bears major implications on how international lawyers approach international legal texts. In exposing these two attitudes towards textuality and the distinct types of dualism they reveal, this article makes a plea for a greater embrace of international poetics by international lawyers, and thus for a complete remoulding of international lawyers’ dualist patterns of thought. It also questions the hermeneutic understanding of interpretation in international legal thought and practice.

Conference: The Reality of International Legal Theory – Reality in International Legal Theory

On May 19-20, 2022, the University of Copenhagen will host a conference on “The Reality of International Legal Theory – Reality in International Legal Theory.” Program and registration are here.

Call for Papers: The Reality of International Legal Theory – Reality in International Legal Theory

The ESIL Interest Group on International Legal Theory and Philosophy and iCourts have issued a call for papers for a conference on "The Reality of International Legal Theory – Reality in International Legal Theory," to take place May 19-20, 2022, at the University of Copenhagen. The call is here.

Maisley: Better to see international law this other way: the case against international normative positivism

Nahuel Maisley (Universidad de Buenos Aires - Law) has published Better to see international law this other way: the case against international normative positivism (Jurisprudence, Vol. 12, no. 2, pp. 151-174, 2021). Here's the abstract:

In this paper, I argue against international normative positivism, i.e., against the idea that the separation of international legal judgement from moral reasoning is not only possible, but also a good thing. First, I claim that the space for the separation of legal and moral reasoning is minimal in this legal realm, given the peculiar characteristics of the international legal system. And then, I try to show that nonpositivism in international law (i) does not lead to quietism regarding the rules, (ii) or regarding the system as a whole, (iii) that it does not give too much power to international judges, or (iv) work against democratic values, (v) that it does not lead to anarchy, and that it (vi) may not be an instrument of imperialism, but rather a tool against it.

Kammerhofer: International Investment Law and Legal Theory: Expropriation and the Fragmentation of Sources

Jörg Kammerhofer (Albert-Ludwigs-Universität Freiburg - Law) has published International Investment Law and Legal Theory: Expropriation and the Fragmentation of Sources (Cambridge Univ. Press 2021). Here's the abstract:

Expropriation is a hotly debated issue in international investment law. This is the first study to provide a detailed analysis of its norm-theoretical dimension, setting out the theoretical foundations underlying its understanding in contemporary legal scholarship and practice. Jörg Kammerhofer combines a doctrinal discussion with a theoretical analysis of the structure of the law in this area, undertaking a novel approach that critically re-evaluates existing case-law and writings. His approach critiques the arguments for a single expropriation norm based on custom, interpretation and arbitral precedents within international investment law, drawing also on generalist international legal thought, to show that both cosmopolitan and sovereigntist arguments are largely political, not legal. This innovative work will help scholars to understand the application of theory to investment law and help specialists in the field to improve their arguments.

Achiume & Carbado: Critical Race Theory Meets Third World Approaches to International Law

Tendayi Achiume (Univ. of California, Los Angeles - Law) & Devon W. Carbado (Univ. of California, Los Angeles - Law) have posted Critical Race Theory Meets Third World Approaches to International Law (UCLA Law Review, forthcoming). Here's the abstract:

By and large, Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) exist in separate epistemic universes. This Article argues that the borders between these two fields are unwarranted. Specifically, the Article articulates six parallel ways in which CRT and TWAIL have exposed and challenged the racial dimensions of United States law and international law, respectively. It explores the related ways in which both CRT scholars and TWAIL scholars have: contested the legalization of white supremacy; marked and problematized the degree to which regimes of inclusion can operate as technologies of exclusion; staged important if non-identical critiques of colorblindness; engaged and repudiated neoliberal claims about racialized social responsibility and agency; confronted perceptions that both literatures exist outside the boundaries of the presumptively neutral scholarly conventions of constitutional law and international law, engendering either criticism or willful dis-attention or non-engagement by mainstream scholars; and remained invested in reconstruction and transformation of and within law, seeking to maximize its emancipatory potential for racial justice and equality even while remaining clear-eyed about the limits and costs of such engagement and the need to effectuate change in other arenas, such as social movements.

Call for Nominations: ASIL International Legal Theory Interest Group Scholarship Prize

The International Legal Theory Interest Group of the American Society of International Law has issued a call for nominations for an International Legal Theory Scholarship Prize. Here's the call:

The International Legal Theory Interest Group of the American Society of International Law (ASIL) invites nominations for an International Legal Theory Scholarship Prize, to be bestowed at the ASIL Annual Meeting. This year’s prize will be awarded for the best article or book chapter in the field of international legal theory published in 2020 by a non-tenured scholar based at an institution in the United States, as determined by a committee of experts. The members of this year’s committee are Adil Haque, Karen Knop, John Linarelli, and Elizabeth Rodriguez-Santiago.

Eligible authors must be based at an institution in the United States, non-tenured and in teaching for 8 years or less. Nominees need not be members of the American Society of International Law, and self-nominations are encouraged.

Nominations for this year’s award are due by January 22, 2021. Nominations should be sent to the IG Chair, Harlan Cohen, at hcohen@uga.edu, and include the nominee's name, a short statement describing their eligibility, and a PDF of the nominated article or chapter. An author may be considered for more than one eligible publication. Multi-authored works may be nominated if all the authors are eligible to enter the competition.

Kammerhofer: International Legal Positivist Research Methods

Jörg Kammerhofer (Univ. of Freiburg - Law) has posted International Legal Positivist Research Methods (in Research Methods in International Law: A Handbook, Rossana Delplano & Nicholas Tsagourias eds., forthcoming). Here's the abstract:

This chapter looks at legal positivism and its methods. In international legal scholarship, we are confronted with a paradox: while most international lawyers would say they employ broadly ‘positivist’ methods to find out what the law prescribes, its methods are among the least reflected. Positivism is seldom practised in a manner that is coherent with the theory of legal positivism. This leads to a bifurcation: default positivism and theoretical positivism.

Default positivism is not a deeply reflected theoretical approach, but rather the default solution. Fealty to the law is important, but not in an overly formalist and strict manner. Default international legal positivism is a result of processes of socialisation and adaption, founded on a largely subconscious culture of orthodoxy: a pragmatic mindset of submission to and accommodation of widely accepted practices and methods. Its methods reflect that mindset and I briefly analyse two: precedent-following and interpretation. On the one hand, the power of precedents in international law (acknowledged not to be a common law) is taken so seriously that arguing against the ICJ is virtually impossible – the ICJ cannot err on an important issue. On the other hand, the role which the Vienna rules on interpretation play is curiously formalistic and does not sit well with the idea of interpretation as finding out what a text means.

Theoretical positivism, using the Pure Theory of Law as an example, is theory-laden and much less pragmatic. It is primarily a theory of how legal scholarship can stay true to the ideal of (legal-)‘scientific’ cognition. Its methods, in turn, are structural analysis and frame-determination. The analysis of the structure of the international legal order, the relationship of different norms and sources is central to any legal-scholarly enterprise and helps to avoid admixing it with ideological precepts. The frame-determination method of interpretation avoids the impossible task of eliminating the vagueness of natural languages and the inevitable freedom to decide. Scholarly interpretation is not an attempt to tell courts how to decide a case, it rather shows the (structural) limits of the law to be applied.

Call for Papers: 28th Annual SLS/BIICL Workshop on Theory & International Law

A call for papers has been issued for the 28th Annual SLS/BIICL Workshop on Theory & International Law, which will take place May 15, 2019, at the British Institute of International and Comparative Law. The theme is: "Spaces beyond Sovereignty: International Law Outside of Territorial Jurisdiction." The call is here.

Call for Papers: New Perspectives in International Legal Theory

The International Legal Theory Interest Group of the American Society of International Law has issued a call for papers for a roundtable during the upcoming ASIL annual meeting. Here's the call:

The ASIL International Legal Theory Interest Group will use its business meeting at the ASIL Annual Meeting (March 27-30, 2019) to hold a roundtable on “New Perspectives in International Legal Theory.” The roundtable will provide an opportunity for three scholars to present and receive feedback on unpublished papers addressing topics related to international legal theory. Other interest group members will be invited to read the selected papers in advance of the roundtable to facilitate a vibrant conversation.

Scholars wishing to participate should submit a one-page abstract to the Interest Group’s chair, Evan Criddle (ejcriddle@wm.edu), by February 25, 2019. With the abstract submission, applicants should include their contact information, professional title, institutional affiliation, and number of years teaching in the academy. Preference will be given to scholars who have been teaching at an academic institution in the United States for seven years or fewer. Successful applicants must commit to deliver their draft paper for circulation to the interest group no later than March 10, 2019.

Call for Papers: Young Researchers' Forum on International Law and Theory

The Campus Law Centre of the Faculty of Law, University of Delhi and the Young Researchers’ Group on Legal Theory have issued a call for papers for a Young Researchers' Forum on International Law and Theory, to be held March 1-3, 2019, in Delhi. The call is here.

Hirsch: The Sociological Perspective on International Law

Moshe Hirsch (Hebrew Univ. of Jerusalem - Law) has posted The Sociological Perspective on International Law (in International Legal Theory: Foundations and Frontiers, Jeffrey L. Dunoff & Mark A. Pollack eds., forthcoming). Here's the abstract:

Sociological analysis of international law begins from the premise that international legal rules and institutions are deeply embedded in the particular socio-cultural features of certain communities. Sociological factors and processes thus form an inseparable dimension of international law, and international law is both affected by and influences such factors and processes. Numerous international legal rules reflect and affect societal factors such as norms, socialization, identity, collective memories and social control. Existing sociological studies of international law essentially emphasize that socio-cultural factors are involved in two primary (and inter-related) dimensions of international law: behavior and knowledge. First, such factors influence the behavior of actors in the international legal system (e.g., via social norms). Second, sociological factors are involved in the production of collective knowledge shared by members of social groups (e.g., via collective memories regarding historical events) which also affect actors' legal behavior. Some eminent sociologists have relatively recently highlighted a third level of social behavior - the cognitive dimension. Cognitive sociology underscores that humans process information existing in our environment (e.g., filtering in/ out some items of information) also according to socio-cultural factors. Cognitive sociology literature generates significant insights regarding the link between socio-cognitive processes and international law; for example, with respect to the impact of culturally embedded categorizations on compliance with international treaties prohibiting racial or gender discrimination.

The draft chapter is structured as follows: Section II exposes the central assumptions of the sociological perspective and introduces the core theoretical approaches in sociological literature. Section III discusses the sociological dimension of international law, highlighting the role of socio-cultural factors in three primary dimensions of international law relating to behavior, knowledge, and cognition. Here we also shed light on the broad contours of earlier scholarship on the sociology of international law. To illustrate the contribution of sociological theories to international legal scholarship, this section also briefly examines the question of the desirable structural design for international legal regimes from the three major sociological theoretical perspectives. Section IV observes some significant recent changes in international investment law and sketches out some thoughts regarding sociological factors that may explain this legal change; underlining the role of strains between values prevailing in the international community and the investment arbitration community, social movements, and social control mechanisms. Section V recaps the main conclusions drawn from the preceding sections.