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The Oxford Handbook of the Theory of International Law edited by Orford, Anne; Hoffmann, Florian (2nd June 2016)

Part II Approaches, Ch.21 Yale’s Policy Science and International Law: Between Legal Formalism and Policy Conceptualism

Hengameh Saberi

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, 2015. All Rights Reserved.date: 23 September 2019

Subject(s):
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 challenges the conventional narrative about the career of the New Haven School (NHS) by arguing that the mainstream discipline’s rejection of the policy-oriented methodology was not a rejection of policy thinking as such, but rather an opposition to the conceptualism and formulaic determinism of New Haven’s jurisprudence resulting from a peculiar combination of a contextualist methodology and a non-cognitive view of normative values of human dignity. Rather than between law and policy, the tension was between two different perceptions of flexibility and rigidity. This tension resulted from the NHS’s dogmatic and erroneous presentation of what they dubbed ‘traditional’ and ‘rule-oriented’ approaches as formalist and the mainstream discipline’s more accurate understanding of the policy-oriented international law as a new mode of formalism.

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