Henrique Marcos (Maastricht University) & Antonia Waltermann (Maastricht University – Faculty of Law) have posted The Logic(s) of International Law on SSRN. Here is the abstract:
This Special Issue of the Hague Yearbook of International Law is the outcome of the ‘Logic of International Law’ conference convened on 14th and 15th November 2022 at Maastricht University, Faculty of Law. The idea of the conference was to bring together scholars from public international law and legal theory to interact and discuss the logic(s) of international law. The combination of logic and public international law is perhaps not one that is immediately obvious or common, but we posit that there is fruitful ground at the intersection between the two fields. First and foremost, the understanding of logic adopted for this project is a broad one: logic is the field of study concerned with rules of good reasoning. Reframed in such a way, the combination becomes more obvious: reasoning is one of the core tools for lawyers in any field and public international law is no exception. Still, organising a conference on the logic of international law was both a unique and challenging opportunity. This is for two reasons: on the one hand, existing legal logic is largely not built for public international law; on the other hand, lawyers may distrust the ‘cold mathematical approach’ of logic.
First, much of the existing work in legal logic either adopts a generalist approach or bases its analysis on domestic law, which has a structure that differs significantly from that of international law. Unlike domestic law, which typically features a hierarchical structure, international law lacks a formal and centralised framework. International law evolves through the direct actions of its subjects: states, international organisations, non-governmental entities, transnational companies, and even individuals. The continuous expansion of international law, characterised by the increase in the number of special regimes, presents complicated challenges to international cooperation in the form of normative conflicts. In this way, the insights derived from legal logic in the context of domestic law may not always be readily transferable to international law. In some cases, a ‘translation’ is necessary. In other cases, the distinctive features of international law demand the development of specific logical tools to deal with its particular matters. The challenges offered by international law provide fertile ground for logicians to refine, broaden, and validate their theories. At the same time, certain perspectives from logic may provide legal scholars with valuable analytical and conceptual tools for understanding international law.
Second, any endeavour that attempts to connect law and logic is inherently controversial, especially when it comes to the potential consequences of combining (seemingly) hard mathematical reasoning with the nuances of legal interpretation. Lawyers may worry that relying too heavily on logic could mechanise legal practice, making impossible the delicate balancing acts that may be necessary for delivering fair outcomes. They are concerned that placing too much importance on logical frameworks could lead to an insensitive approach to legal interpretation, which may overlook complex human experiences, moral considerations, and cultural contexts. In the age of generative artificial intelligence, the idea of mechanising legal interpretation using logical ‘if-then’ automations does indeed raise significant theoretical and practical questions about law and the involvement of human agency in norm application. A blind automation of legal reasoning could pose a threat to the fundamental nature of law, reducing it to a mere exercise in algorithmic deduction. This, however, is not the sole method to connect law and logic, nor is this the only possible understanding or type of logic available to law. It is feasible to bridge the two without compromising the human aspect, while maintaining – and indeed conceptualising – the possibility and need for exceptions and balancing. If logic is the study of correct reasoning, in both formal and informal ways, what reasoning approaches are suitable for public international law, and what can public international law and legal logic learn from and contribute to one another?