Foundational Doctrines and Techniques of International Legal Argumentation
- Elgar International Law series
Chapter 3: Law-making
The doctrines of subjects and sources have always proved insufficient to explain and apprehend international law-making processes. This is not surprising as their main goal is to provide a static account of the international legal order and hence they have very limited descriptive and explanatory values. It is to offset such descriptive and explanatory deficiency that international lawyers have put a lot of effort into the design of doctrine(s) of international law-making. The doctrine(s) of law-making, like those of sources and subjects, provides interesting insights on the social arrangements sought by international lawyers. This is the object of this chapter. It has long been claimed that international norm-making has grown pluralized in the sense that it has allegedly moved away from the traditional “Westphalian” and state-centric model of law-making. New processes outside traditional diplomatic channels and involving non-state actors are said to qualify as law-making, and the products thereof have come to be ascertainable as genuine legal rules. Such an assertion of a pluralization of international law-making is now common, and those studies that fail to give it sufficient emphasis are demoted to obsolete scholarship. This uncontested prejudice in favor of pluralistic representations of law-making processes calls for a preliminary remark that will inform the argument subsequently made in this chapter.
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