Contributions to Disciplinary Thought
Edited by Jean d’Aspremont and Sahib Singh
Chapter 40: Legal form
This chapter considers the theory and politics of international legal formalism. I argue that we ought to acknowledge the full implications of the insight that international law is anchored in extralegal dynamics while being informed by relatively autonomous structures of its own. Broached from this sociolegal perspective, antiformalism today should be understood not as a grand theoretical innovation, to be lauded or lambasted, but as a piece of commonplace wisdom, fully capable of being absorbed into any neoformalism that has come to terms with the legal realist challenge, distanced itself from bourgeois models of internal coherence and immanent intelligibility, and adopted the crucial, if somewhat prosaic, goal of supplying weaker actors with at least a limited measure of defensive tools. The truly pressing question today, I contend, is not whether to be a formalist, but how one ought to be a formalist.
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