Research Handbooks in International Law series
Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann
Chapter 4: Theorizing treaties: The consequences of the contractual analogy
In every branch of social sciences, as JK Galbraith once noted, the ultimate test of truth always lies with the conventional wisdom, especially that part of it which is endorsed by the respective scientific community. Seen from this angle, the single most important thing that one would need to know about international legal theory today, undoubtedly, would be the fact that in the minds of most international lawyers presently the word ‘theory’ is most commonly associated with the ideas of fanciful gibberish, sophistry, and, depending on what one feels about modern academia more generally, a slightly offensive culture of verbal self-indulgence. A slightly less charitable reading would be to say that in the minds of most international lawyers today the concept of theory would be most accurately defined as: (i) a decidedly unpractical, selfconsciously speculative, jargon-heavy intellectual exercise that is (ii) ostensibly aimed at uncovering some form of deeper philosophical truth, the acquisition of which in the end, however, is certain to be of no evident benefit to anyone, save maybe for (iii) those who, following a logic not entirely dissimilar to that identified by Veblen behind the late 19th-century custom of building educational curricula in upper-class institutions around the study of dead languages and athletic pursuits, might see in it a talisman of some kind of hierarchically inspired symbolic status. For, indeed, if one of the best ways to broadcast the fact of one’s exclusive social position generally is ‘to put in evidence some
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