Edited by Alexander Orakhelashvili
Chapter 1: The Relevance of Theory and History – The Essence and Origins of International Law
Alexander Orakhelashvili 1.1 LAW AND SCHOLARSHIP The international legal argument focuses on the analysis of legal rules and instruments, and their application to facts. The ultimate aim of studying international legal theory is to understand the principal systemic and structural categories of the international legal system. Theory enables us to transcend the context of individual situations in which the international legal argument develops and to indentify general patterns that characterise this legal system in its entirety. Theory also provides a starting-point for studying international law in an interdisciplinary perspective, analysing its interaction with ethics, morality, politics, culture and economy, which include factors that influence the choice of States to accept or reject a particular rule, or decisions whether or not to comply with rules that they have accepted. These considerations cannot, however, replace those that underlie the validity of the rules in question and consequently the lawfulness of the relevant decisions. Therefore, to remain a valid exercise in international legal argument, theory has to tangibly relate to principal categories through which the international legal system operates in terms of creation, implementation and modification of international legal rules. Consequently, one of the principal tasks of theoretical analysis is to separate that part of theory which accurately reflects the nature and content of international law from that which merely constitutes a product of theoretical conjecture and of over-theorising. Over-theorising has a significant history. As Onuf explained, in the nineteenth century ‘the legal order was all the scholar saw around him, for it...
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