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Part II The Theories of the Sources of International Law, s.VIII Sources in Legal-Positivist Theories, Ch.16 Sources in Legal-Positivist Theories: The Pure Theory’s Structural Analysis of the Law

Jörg Kammerhofer

From: The Oxford Handbook of the Sources of International Law

Edited By: Jean d'Aspremont, Samantha Besson

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 23 September 2021

Choice of law — Conflict of laws — Customary international law — General principles of international law

This chapter demonstrates that the Kelsen–Merkl Stufenbau theory of the hierarchy of norms avoids many of the misconceptions of orthodox scholarship. This theory is the closest there is to a legal common-sense theory of the sources of international law. It is close to the mainstream, but provides a solid theoretical basis. False necessities are here deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, the chapter concludes by sketching out the possibilities of ordering the sources of international law. A structural analysis of the international legal order clears the way for level-headed research on this legal order’s daily operations: norm-conflict and its application and interpretation.

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