Formalism and the Sources of International Law: An Introduction

Prolegomena: A paradox

At the origin of the inquiry found in the book under discussion (whose introduction is available for download here) lies a paradox. This paradox can be spelled out as follows. Nothing has been more ontologically threatening for international law – and for the professional community organized around it – than the rampant contemporary post-ontological mindset of the international legal scholarship. The (self-proclaimed) post-ontological era – and the correlative broadening of the substantive agenda of research that has accompanied it – have aggravated the impoverishment of our state of reflection about the theory of sources.

Indeed, having become too busy reflecting on legitimacy, accountability, participation, transparency or newly obsessed by epistemological and sociological introspection, international lawyers – and especially international legal scholars – have come to severely neglect the thinking about the most elementary tool of cognition of their object of study: the theory of sources. Said differently, the post-ontological era of international law has witnessed a move away from (theoretical reflections about) the theory of sources. This move away from the theory of sources has led international legal scholars to demote the theory of sources to a debate of secondary importance – let alone an unnecessary constraining straightjacket – and, as a result, output, effect, impact of norms or even compliance have been elevated in a central defining characteristic of international law.

The reasons thereof have not always been a dogmatic repulsion towards the theory of sources. The agenda behind such a move (this is what I have called elsewhere the ‘politics of deformalization’) includes the perceived need to expand or reform international law, the urge to buoy its legitimacy or the accountability of its main power-wielding actors, a religious attachment to pluralism, or the necessity to allow greater argumentative creativity – to name only a few. Interestingly, such a growing disinterest for the theory of sources has also been witnessed in international case-law where judges seem to take less and less pains to explain how (and according to which indicators) they identify and ascertain the rules they apply.

The agenda behind the theory of sources

In contrast to such a postontological conceptual nonchalance, this book makes a plea for preserving the central cognitive role of the theory of sources – albeit in a reformed configuration. The reasons for advocating the preservation of a theory of sources are multifold.

First, the book, in a functionally agnostic fashion, submits that, whatever function is assigned to it – whether freedom-restricting, behavior-conducting, progress-enhancing, society-structuring, hope-conveying or simply intellect-stimulating – international law needs to be formally ascertained and cognized to a reasonable extent. The book also takes the centrality of the theory of sources as a precondition for the critique of international law. Indeed, it argues that a (reformed) theory of sources also makes possible the critique of law – and thus its reform.

Eventually, the books argues that a theory of sources is an indispensible condition for the existence of a common vocabulary without which there cannot be any interpretative community of international law. All in all, the book takes the view that, short of a theory of sources able to provide sufficient ascertaining indicators, international law is at best a platform for discursive practices and the profession organized around it a cacophonic debating henhouse.

Cognitive biases assumed

As the foregoing sufficiently indicates, the book is premised on a strong conceptual and methodological bias which its author critically and transparently assumes. Making a plea for the preservation of the central role of the theory of sources is certainly not neutral and manifests a particular choice for a particular take on law. It is not denied that the source theory is accordingly a particular ‘value fact’ which boils down to a choice for a certain cognitive approach – in the form of a set of formal law-ascertaining indicators – in order to make sense of law and of its practices.

It must be emphasized that such a choice is made in full acceptance of the conceptual, theoretical, explanatory or descriptive virtues of alternative approaches to law and cognition which the book does not seek to invalidate. In the same vein, it is acknowledged that approaching international law from the standpoint of its sources corresponds to a formal conception of law zeroed in on law as a product. Those approaches to international law which focuses on the product rather than the processes are often said to be static. One of the ambitions of the book is to show that product-based approaches to international law ought not necessarily to be condemned as static. Theories of sources, if grounded in the social practice of law-applying authorities can change – and can be changed. This is the so-called social thesis which provides dynamism of a(n) – otherwise entirely static – product-centered conception of law.

Current deficiencies in sources theory

In the specific context of international law, the book argues that the social practices of law-applying authorities have long ceased to reflect the practices which the ancestral article 38 of the ICJ Statute was meant to reflect. This is why approaching the sources of international from the standpoint of article 38 no longer makes much sense as it does not reflect the current consensus among its main important law-applying authorities. Instead, such a theory of sources ought to radically depart from the static pedigree-determining blueprints found in the mainstream literature and be shaped as a dynamic model of rule-ascertainment grounded in an ever-evolving social practice.

On top of advocating a move away from article 38 – and especially the abandonment of the law-ascertaining role of State intent for the identification of treaties and unilateral promises – or that of those associated doctrines conveying the illusion of formalism in the delimitation of customary international law – the book also calls for a more pluralistic conception of law-applying authorities which ought not be restricted to domestic and international courts and tribunals. New actors have come to produce social practice determinative of the ascertainment indicators contained in the theory of sources of international law.

New forms of exercises of international public authority

While critically re-evaluating the theory of sources of international law, the book simultaneously acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules. In that sense, it concurs with the idea that the mainstream theory of sources falls short of capturing most exercises of public authority at the international level. Yet, at the same time, the book challenges the urge of international lawyers to apprehend these normative phenomena through their own cognitive instruments with a view to necessarily including them in their scope of expertise and elevate them in legal materials.

In that sense, the book calls for some critical self-reflection as to the gluttony of international lawyers who systematically – and almost obsessively – seek to label as law every phenomenon they want to apprehend and on which they claim exclusive ownership. At the same time, the book makes the argument that if we were to (decide to) design law-ascertaining yardsticks allowing the capture of such untraditional exercises of public authority as international law, the theory of sources that would allow such capture ought to be dynamic and formal in nature, that is that it ought to rest on formal indicators grounded in social practice.

Concluding caveats: formalism, reductionism and ecumenism

I feel it necessary to conclude this brief sketch of the book with a twofold caveat. First, the plea for a – dynamic and reformed – conception of sources grounded in social practice of law-applying authorities – broadly construed – should certainly not be conflated with a naïve objectivist defense of formalism in legal argumentation. The idea of argumentative truth and immanent intelligibility of legal arguments has long been refuted (provided it has ever been advocated – see here) and the book is obviously not meant to rehabilitate this type of formalism. After all, we are all Legal Realists (as famously proclaimed by Michael Steven Green in Legal Realism as Theory of Law). In that sense, the approach to formalism vindicated by the book is reductionist, for it is solely limited to the use of a few formal ascertaining indicators (for some additional thoughts on reductionist formalism, see here).

A second caveat pertains to the coexistence of the “value fact” at the heart of this book, i.e. the choice for a source-based approach to law, with other approaches to international law. The social thesis in which the dynamic conception of the sources of international law defended in the book is grounded has some doctrinal reconciliatory virtues, for it helps reconcile some allegedly antonymic trends in international legal scholarship while acknowledging the added value of the descriptive, analytical and the specific critiques of other approaches to international law. In that sense, there is some ecumenism in the argument made in this book, for, even if international law is also a product in need of occasional snapshots, it is also (constructed as) a much more complex phenomenon that calls for complementary cognitive tools.

The following discussion constitutes a wonderful opportunity to revisit some the abovementioned claims. I am extremely grateful to the editors of EJIL: Talk! for allowing such an exchange to take place and to Philip Allott and Carlos Esposito for the time and cerebral energy that have devoted to it. The main (but modest) ambition behind this book has always been to invite international lawyers to engage in more critical and conceptual (self-)reflection about how they ascertain the rules they apply, interpret, evaluate, criticize or study. It is hoped that the following exchange will be a step into that direction.