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Formalism and the Sources of International LawA Theory of the Ascertainment of Legal Rules$
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Jean d'Aspremont

Print publication date: 2011

Print ISBN-13: 9780199696314

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199696314.001.0001

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The Concept and the Rationale of Formalism in International Law

The Concept and the Rationale of Formalism in International Law

(p.12) 2 The Concept and the Rationale of Formalism in International Law
Formalism and the Sources of International Law

d'Aspremont Jean

Oxford University Press

This chapter spells out the various meanings of formalism in the international legal scholarship. It starts by explaining how formalism is understood in the book, that is as a theory of law-ascertainment that materializes itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) grounded in social practice (the social thesis). The chapter then attempts to distinguish between a conception and the current associations of formalism with adjudicative neutrality and immanent intelligibility of legal arguments, voluntarism, State-centricism, formal lawmaking processes or legal positivism. The chapter also elaborates on the extent to which the theory of formalism presented in the book, albeit different, is compatible with the famous — and somewhat ironical – “culture of formalism” put forward by Martti Koskenniemi. The chapter finally expounds on the rationale of a formal theory of ascertainment and discusses the contribution of formal-ascertainment to the preservation of the normative character and authority of international law, the significance of scholarly debates about international law, the possibility of a critique of international legal rules and the international rule of law.

Keywords:   ascertainment, adjudicative neutrality, voluntarism, positivism, culture of formalism, normativity, authority of international law, Koskenniemi

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