Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 15: Lawmaking by scholars

Jörg Kammerhofer


This chapter examines the alleged lawmaking function of international legal scholars. While scholars are quite obviously as unable to make law as they are butterflies, legal scholars appear nonetheless to be uniquely influential. We can study the role of scholars in lawmaking using at least two radically different methods: the empirical viewpoint, looking at the factual influence of scholarship, or the normativist viewpoint, examining whether the law empowers ‘scholars’ to make law. The chapter starts by scrutinising Article 38(1)(d) of the ICJ Statute, the standard entrypoint of international legal scholarship, including the restrictions of that approach. Next, the sources of law will be discussed as the conceptual basis for the choice of lawmaking factors by the law, demonstrating the problems when incompatible scholarly methods are admixed. Lastly, a brief account of the sociological view will be given, focusing on and problematising previous attempts to measure scholarship’s influence on lawmaking.

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