AbstractIt has recently been suggested that the study of international legal life should take an ‘empirical turn’: a turn which has often focused on how patterns of authority emerge and operate in relation to international courts. In what follows it is argued that this empiricism fails to distinguish (for the purposes of sociological inquiry) authority from various other concepts such as power or consensus in the study of international law and courts. This is because this method focuses only on overt signs, such as observable action or statements of intention, and at the level of the sign these concepts are not obviously distinguishable. However, one solution to this problem, which is to collapse socially significant and distinct categories such as authority and consensus into a broad category of ‘power’, requires the adoption of an implausible and inconsistent view of agency in explanations of legal authority. By contrast, and in line with the long-standing interpretivist tradition in sociological and legal method, we claim that in order to interpret the observable signs of compliance to international legal rules and principles as indicative of authority, consensus, or power, it is necessary to interpolate an account of the reasons which give rise to the compliance we observe. This, in turn, explains why international legal doctrine, as an axiological structure, gives rise to the behaviour of its addressees, such as state officials.

Book summary page views Book summary page views help Close Book summary page views help Book summary views reflect the number of visits to the book and chapter landing pages. Total views: 0 * Loading metrics...

Kant’s Doctrine of Right is often understood to explain the authority of law by reference to the way law secures important general interests such as security and welfare. In this article we show that rooting legal obligation in the instrumental benefits conferred by law is a misreading of Kant’s argument. Instead, we suggest that at the center of Kant’s sophisticated and multifaceted legal philosophy is a moral concept of law, or Right, which has interpretative priority. Kant’s argument for Right demonstrates that the establishment of an omnilateral will is the only way for persons’ wills to be aligned consistently with the categorical moral duties they owe to each other. Right can never be secured unilaterally, but only given effect by a constitution which secures various democratic and substantive (innate) rights. This explains Kant’s opposition to despotism, colonialism and revolution. We distinguish this moral concept of law from related juridical (i.e., positive) and ethical concepts, and we trace some of the complex relationships which exist between juridical law and the moral concept which, in Kant’s words, gives law its brain.

The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-pro t purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in DRO • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full DRO policy for further details.

Neil Walker, in his recent monograph entitled Intimations of Global Law, provides an explanation of how authority emerges in the pluralist global legal landscape. Authority, in perhaps a modern restatement of the traditional consent-based view, emerges from contestation and comprise in the relations between the institutions and bodies that populate this landscape (this is called voluntas). From these relations emerge shared, and indeed universal, values such as a respect for ‘basic rights’ and ‘autonomy’ (this is called ratio). In this essay, the dynamic between voluntas and ratio is considered, and the importance of dissent and resistance within the global landscape as a means to generate ratio is highlighted.

Over the last two decades the landscape of legal theory has changed dramatically. Well-established assumptions regarding the nature of law have been cast into doubt by a notable expansion in the normative scope and regulative reach of forms of law beyond the state. This has resulted in two distinct, but related, disciplinary shifts. First, analytical legal theory has begun to question seriously its parochial focus, turning its gaze towards global or international legal phenomena. Secondly, international and European lawyers are beginning to revisit conceptual questions about the nature of their respective fields as conventional disciplinary certainties vanish from view. Whilst these shifts have prompted disciplinary self-reflection, a cross-disciplinary dialogue has not yet been well-established. Where legal philosophers have begun to wonder how EU, international and transnational legal phenomena impact on the concept of law, these enquiries are still very much embryonic and often disconnected from the more practical concerns of international and EU lawyers. At the same time, it is clear that international and EU lawyers reflect more on the theory of their discipline than they used to, but there have been relatively few cross-disciplinary conversations about the nature of law, or ‘legality’ in general. It is against this background that this special edition of Transnational Legal Theory took shape. The papers in this issue arose out of a workshop at the University of Bristol in January 2014, which was organised by the editors of this special edition. The workshop included contributions by Cormac Mac Amhlaigh (Edinburgh), Jean d’Aspremont (Manchester/Amsterdam), Julie Dickson (Oxford), Jörg Kammerhofer (Freiburg), Michael Giudice (York, Canada), Gleider Hernandez (Durham), Jacob v H Holtermann (Copenhagen), Anne van Mulligen (Amsterdam), Henrik Palmer Olsen (Copenhagen), Stuart Toddington (Huddersfield), Ingo Venzke (Amsterdam), Wouter Werner (VU Amsterdam) and

A summary is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

Hersch Lauterpacht’s method for international legal science, which he calls progressive interpretation, is reconstructed here. This method takes as its starting point the claim that international law should be functionally oriented towards two ideals – the establishment of peace between nations and the protection of fundamental human rights. It is the need to anchor his idealism to the ‘realities of international life’ (e.g. state practice) which provides the basis for his important, and highly plausible, method for the study of international law. That is, progressive interpretation articulates the international community’s on-going attempts to express preferred normative goals which are immanent within the day-to-day workings of the international legal system. International legal doctrine is the institutional expression of the international community’s fundamental normative commitments, it is not simply that which is considered ideally just. Alongside a reconstruction of Lauterpacht’s method, two substantive contributions are made. The first traces the connections between progressive interpretation and more recent legal philosophers who adopt an interpretivist methodology, such as Ronald Dworkin. The second reconsiders Lauterpacht’s qualified constitutive theory and shows how his method reveals it to be a plausible legal doctrine, despite a relative lack of supporting state practice, and in the face of considerable academic criticism.

The Modern Law ReviewVolume 74, Issue 5 p. 794-810 The Problem of Global Law Patrick Capps, Patrick Capps University of Bristol aReader in Law, University of Bristol.Search for more papers by this authorDean Machin, Dean Machin University of Warwick bLeverhulme Research Fellow in Political Philosophy, University of Warwick. Thanks to Phil Syrpis, Keith Syrett and Steven Greer for comments on an earlier draft of this article.Search for more papers by this author Patrick Capps, Patrick Capps University of Bristol aReader in Law, University of Bristol.Search for more papers by this authorDean Machin, Dean Machin University of Warwick bLeverhulme Research Fellow in Political Philosophy, University of Warwick. Thanks to Phil Syrpis, Keith Syrett and Steven Greer for comments on an earlier draft of this article.Search for more papers by this author First published: 19 August 2011 https://doi.org/10.1111/j.1468-2230.2011.00872.xCitations: 1 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume74, Issue5September 2011Pages 794-810 RelatedInformation

(1) works on the structure and norms of the international legal order inspired by critical legal theory; (2) studies of the international legal order by international relations scholars; (3) ‘low-’ or ‘mid-level’ theories concerning particular doctrines of international law, such as its sources or questions of legal personality; (4) historical studies of the ideas of great philosophers and jurists on international law; (5) the application of moral and political philosophy to justify the content of international legal norms, or the claims to authority of those that apply them; (6) the application of analytical legal philosophy to the study of international law.

Introduction 1 Philosophical Problems for International Lawyers Conceptions of International Law in Space and Time Scepticism in the Philosophy of International Law Theory and Practice Conclusion 2 The Methodological Problem The Methodological Problem in Legal Science The Methodological Problem Is International Law Racist? The Ontological Problem Conceptual Analysis and Focal Analysis Conceptual Analysis Focal Analysis Conceptual Analysis, Focal Analysis and the Raw Data The Legal Scientist Conclusion 3 The Conceptual Analysis of International Law Hart's The Concept of Law as a Form of Conceptual Analysis Legal Positivism Hart's Concept of Law Hart's Non-ambitious Concept of Law Hart's Ambitious Concept of Law International Law as an Indeterminate Form of Law Usages and Conventions The Legal Scientist, the Ordinary Language User and the Legal Official Law as a Social Practice Theoretical Values Law as a Conventional Practice Paradigm Cases and the Internal Point of View Conclusion 4 Focal Analysis and Ideal-Types Purposivity and International Law Human Dignity and the Purpose of International Law Normative Positivism and International Law Focal Analysis and Ideal-Types Action and Axiology Ideal-Types The Ideal-Type and Collective and Institutionalised Social Practices General Concepts Weber on International Law Ideal-Types and Practical Reasonableness The Concept of International Law Relies upon the General Concept of Law Purpose and Meaning Practical Reasonableness and Ideal-Types Components of the Concept of International Law 5 Practical Reasonableness and Human Dignity The Idea of Human Dignity Human Dignity as Empowerment The Substantive Question Generic Features of Agency Distributive and Authoritative Questions The Authoritative Question Action and the Generic Features of Agency The Universalisation of Generic Rights The Distributive Question The Concept of International Law Dignity in the Kingdom of Ends From the Kingdom of Ends to Positive Law Conclusion 6 The Logic of the Autonomy Thesis The Autonomy Thesis Structure of the Autonomy Thesis Hobbes' Version of the Autonomy Thesis Kant's Version of the Autonomy Thesis Oppenheim's Version of the Autonomy Thesis Weil's Version of the Autonomy Thesis Failure of the Autonomy Thesis Adjudication and Function Legitimacy as a General Condition for the Success of the Autonomy Thesis The Autonomy Thesis and International Law Public Practical Reasons Practical Reasonableness and the Law Conclusion 7 Law as a General Concept The Bare-Autonomy Thesis and the Integrated-Autonomy Thesis Moral Reasoning and Law Ideal and Non-ideal Theory Justification of the Autonomy Thesis Immorality of the State of Nature Law as a Community Governed by an Omnilateral Will Kant's Justification for Law Enforcement Justification of the Integrated-Autonomy Thesis Law Constitutes our Freedom from Dependency Rousseau's Concept of Law The General Concept of Law Conclusion 8 The Foundations of the International Legal Order A Justification for International Law Civil Incorporation and the Sovereign State The State and Civil Incorporation Sovereignty and Collateral Moral Rights The State and Agency International Legal Order Kant's 'State of War' Why is the State of War Not-rightful? The Integrated-Autonomy Thesis and the Sovereignty of International Law Institutional Design International Legal Order as a Suprastate System International Legal Order as an Interstate System Interstate or Suprastate Institutional Design? Conclusion Lauterpacht and the Progressive Interpretation of International Law Unanswered Questions 9 The Discontinuity Thesis Alternatives to International Legal Order Sovereign States are Not Similar, in Relevant Ways, to Human Agents A Rejection of the Universal State, Not International Legal Order The Sovereign State Cannot be Considered an Agent Transgovernmental Law Instead of International Law? Rejection of International Legal Order Sovereign States are Not Similar, in Relevant Ways, to Human Beings Prudence and International Legal Order The Environment in which Sovereign States Find Themselves is Not Similar in Relevant Ways to the Environment in which Human Beings Find Themselves Are International Relations Not Unreasonable? Approximations to International Law Surrogates, Analogues and Approximations The Possibility of Perpetual Peace Conclusion 10 International Legal Order in Ideal and Non-ideal Theory Ideal Theory Norm-Creation Custom Interpretation Enforcement Failure of Interstate Design for Ideal Theory Non-Ideal Theory Juridical and Moral Concepts of the State Institutional Architecture and Norm-Creation Enforcement Self-Defence The Concept of International Law and the Role of the International Lawyer Conclusion Bibliography Index

Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.