On the logic(s) of international law

Recently, my colleague Henrique Marcos and I organised a conference on the logic of international law to bring together scholars in public international law and in legal theory/legal logic.

We discuss the event and the conclusions for international legal reasoning and legal scholarship we’ve drawn from it in this blog post.

Sovereignty and validity

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Austin defined law as the commands of a sovereign. This paper investigates the relation between the concept of sovereignty and legal validity, departing from Austin’s jurisprudence by distinguishing between constitutive and constituted sovereignty. The aim of this paper is not to prescribe one particular understanding of law, sovereignty, or validity. Rather, it is to investigate what implications one particular understanding of sovereignty has for our understanding of law and validity. Accordingly, this paper posits that a focus on popular sovereignty, which is constitutive, does not cohere well with certain understandings of legal validity, namely validity from pedigree and validity from reason. The understanding of validity that fits best with a focus on popular sovereignty is from acceptance, and a further distinction can be made in this regard with acceptance of an institutional system of law and acceptance of individual rules.

Waltermann, A. (2019). Sovereignty and Validity: On the Relation Between the Concepts and the Role of Acceptance. In P. Westerman, J. Hage, S. Kirste, & A. R. Mackor (Eds.), Legal Validity and Soft Law (pp. 203). Springer. Law and Philosophy Library No. 122 https://doi.org/10.1007/978-3-319-77522-7_11

Exceptions in international law

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Exceptions to rules play an important role in law, and in particular in international law. A proper understanding of exceptions is therefore of crucial importance for legal practice, legal doctrine and legal theory. In order to understand the role of exceptions in international law, this chapter – co-authored with Jaap Hage and Gustavo Arosemena – distinguishes between applicability and application of rules. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to, the case. This is possible because the applicability of a rule is merely considered to be a reason for applying the rule, which can be outweighed by reasons against application. This chapter argues that exceptions to rules are made mainly for two purposes: to create a division in the burden of proof, or because the legal consequences of the rule in the case are undesirable. The chapter also discusses techniques used by law to avoid rule conflicts and the need for making exceptions, including subscripting, scope limitations, interpretation, derogation, incorporation and reference, and limitations on rule-creating powers.

Hage, J., Waltermann, A., & Arosemena Solorzano, G. (2020). Exceptions in International Law. In L. Bartels, & F. Paddeu (Eds.), Exceptions in international law (pp. 11-34). Oxford University Press.