Edited by Catherine Brölmann and Yannick Radi
Chapter 15: Lawmaking by scholars
AbstractThis 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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