Navigating between formalism and deformalization in the theory of international law

Guest ILA British Branch seminar by  Professor Jean d'Aspremont, University of Manchester.

Abstract

Confronted with the pluralization of the exercise of public authority at the international level and the retreat of international law as a regulatory instrument, international legal scholars have engaged in two survival strategies. On the one hand, there are international legal scholars who have tried to constitutionalize traditional international law with a view to enhancing its appeal and promoting its use by global actors. On the other hand, there are scholars who, considering any charm offensive to induce global actors to cast their norms under the aegis of classical international a lost battle, have embarked on a deformalization of international law that has led them to loosen the meshed fabric through which they make sense of reality. The constitutionalist strategy has already been extensively discussed in the literature. The second approach has thrived almost unnoticed. It is this second scholarly strategy to the pluralization of the exercise of public authority that this presentation will seek to critically evaluate. After describing the most prominent manifestations of deformalization in the theory of international law and examining its agenda, the presentation will consider some of the hazards of deformalization. This presentation will simultaneously try to demonstrate that formalism has not entirely vanished, as it has continued to enjoy some support, albeit in different forms. These variations between deformalization and the persistence of formalism, this presentation will argue, are the result of political choices which international legal scholars are not always fully aware of.

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