Comment on d’Aspremont’s Formalism and the Sources of International Law: We Don’t Just Talk Past Each Other; We Disagree!

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Jean d’Aspremont is concerned with the effects of the Babel syndrome created by legal pluralism. He is bewildered that international scholars ‘talk past each other’: the impression that international legal scholarship has become “a cluster of different scholarly communities, each using different criteria for the ascertainment of international legal rules” (3). This is the justification for his impressive intellectual effort to present a ‘theory of the ascertainment of legal rules’ and engage in the politics of formalism (29).

His theory is rooted in Herbert Hart’s famous source and social theses, which are reinterpreted by d’Aspremont to fit international law. In d’Aspremont’s theory, “law-ascertainment in international law must be conceived independently of article 38 [of the ICJ Statute], which was not only conceived to serve another purpose, but also leaves too much room for non-formal law-ascertainment”(150). He favours the use of written linguistic indicators (formal law-ascertainment is only possible for rules enshrined in a written instrument) to guarantee formal law-ascertainment in international law and move away from intent-based systems to determine international legal rules.

D’Aspremont affirms that his proposal amounts to “a complete reversal of our theoretical perspectives which allows the ascertainment of treaties and other international legal acts to do away with the speculations inherent in the establishment of intent and makes it exclusively dependent on the use of linguistic indicators” (192). The source thesis, by which rules are ascertained through their pedigree, is completed by the social thesis, which provides the foundations for the formal law-ascertainment of rules in the social practice of law-applying authorities. That is, in a nutshell, D’Aspremont’s recipe to secure true common legal language in “an age of pluralized normativity” (221), a goal that cannot be achieved by other techniques of law identification based on impact, compliance, process, or intent.

A blog post is, of course, not the ideal medium to review in detail the many interesting points raised by d’Aspremont in his encyclopedic, often complex, but absolutely remarkable piece of scholarship. I would rather advance three interconnected comments on some of the more controversial aspects of his book.

The first concerns the very practice of international law. I believe that the author does not take sufficiently seriously the fact that his scholarly drama is not a tragedy for practitioners—for most practitioners it is not even a drama (indeed, in his LCIL Friday Lunchtime Lecture he even said that practitioners are ‘happy” with customary law as it is). In the book, d’Aspremont concedes that his arguments “may at times seem arcane to those who are actually engaged in the practice of international law,” and that “[i]t is true that, by contrast to the determination of the content of the law, the ascertainment of international legal rules is not a continuous and recurring controversy in practice” (8).

D’Aspremont says that these contemporary debates are too important to be ignored by practitioners, who will eventually be affected by deformalization (9). But this is not enough to justify all the efforts and changes that adopting his thesis would demand from practitioners. I must admit that I am also perplexed by this fact, because as a scholar I do share with the author the sense of confusion about the law-ascertainment of non-written rules, such as customary international law and general principles of law. However, I must also acknowledge that d’Aspremont’s arguments do not seem to be sufficiently persuasive to involve the practitioners in the politics of formalism, whatever the costs of the present practice.

The second concerns the nature of d’Aspremont’s theoretical ambition. In other words, is the book an argument or a theory? The subtitle is “a theory of the ascertainment of legal rules.” However, even when he struggles to differentiate himself from Koskenniemi’s culture of formalism, which is clearly not a theory, d’Aspremont’s book could be read as a sophisticated theoretical development of such programme. Indeed, d’Aspremont accepts that his is also a political endeavour, that legal scholars may get involved in the politics of formalism or just keep doing what they do based on varied agendas, such as the expansion of international law or its object, among others (130-134). For d’Aspremont, “formal law-ascertainment is, more modestly, nothing more than a political choice for the preservation of the normative character of international law, the meaningfulness of the international legal scholarship, the possibility of a critique of law, and the rule of law” (145).

This is not how I read the jurisprudential debates on the source and social theories between positivists, either exclusive or inclusive, and its critics—and it’s just an example, as I am not in favour of bringing that kind of ‘‘parochial debate’ to the field of international law. These theories have both a normative and descriptive ambition which may be excellent or poor, but not optional. To put it in Solum’s words, they are playing ‘King of the hill’. D’Aspremont’s argument would be a theory if he defends his criteria of law as exhaustive. In other words, I would suggest that d’Aspremont defends the proposition that conventional written linguistic indicators are the only valid legal criteria to determine or ascertain international legal norms. That would be really provocative, and I like it.

Of course, and this is my third point, that would bring us back to the social practice, because it is far from clear that international law-applying authorities, whatever its definition, will come to share the kind of formalism defended by d’Aspremont, and so drastically limit the legal criteria to determine what is law and, by that token, also the content of law. In my view the author’s efforts to radically separate formal law-ascertainment from the determination of the content of law is not convincing. Suffice to say that the discussion on the social thesis between positivists and Ronald Dworkin concerns the best explanation of how people argue about the content of law.

In concluding, and with another provocative statement that I know Jean d’Aspremont will enjoy, I would like to suggest that international law scholars don’t talk past each other; we disagree!


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