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Part III Regimes and Doctrines, Ch.27 Towards a New Theory of Sources in International Law

Jean d'Aspremont

From: The Oxford Handbook of the Theory of International Law

Edited By: Anne Orford, Florian Hoffmann

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 19 June 2024

Responsibility of international organizations — Customary international law — General principles of international law — Relationship of international law & host state law — Sources of international law

This chapter seeks to advocate a specific avenue for reconstructing the theory of sources beyond naïve objectivism. It looks at how the theory of sources came to be crafted as a platform for the objectivizing of meaning and a bridle to crude politics, and how it failed in that liberal project. Yet, it argues thereafter that this possible failure of the classical theory of sources should not be construed as a failure of the principle of such a theory, but rather the failure of the specific (representation of the) theory of sources as it was inherited from the twentieth century and depicted by its critiques. More specifically, this chapter puts forward a social theory of sources that makes it possible to construe the theory of sources as a tradition and a practice rather than as a set of rules that operates mechanically.

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