Jean d'Aspremont (University of Amsterdam) has posted Formalism and the Sources of International Law: Introduction (EXCERPT FROM FORMALISM AND INTERNATIONAL LAW – A THEORY OF THE ASCERTAINMENT OF LEGAL RULES, Oxford University Press, 2011) on SSRN. Here is the abstract:
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This paper constitutes the introduction of the monograph 'Formalism and the Sources of International Law – A Theory of the Ascertainment of Legal Rules' (OUP, 2011). It sketchs out the argument made in the book according to which, if sufficiently rejuvenated, formalism can still be a useful tool to ascertain international legal rules and distinguish law from non-law. To do so, formalism must be grounded in the (ever-evolving) social practice of international law-applying authorities to the extent that the latter can produce sufficient communitarian semantics for the sake of law-identification. The possibility of formal law-identification criteria however presupposes a move away from the mainstream theory of sources of international law as well as a broad conception of what constitutes 'a law-applying authority'. If so refreshed, a formal theory of sources can remain helpful in capturing the new forms of exercise of public authority at the international level.