Theories of International Law Exam
Questions and Answers
Definition of IL - ANSWER-The law that governs the relationship between states
Austin - IL is not law
Higgins - Il is a continuing process of authoritative decisions
Mutua - a predatory system that legitimizes, reproduces and sustains the plunder and
subordination of the third world by the West
Legal positivism - ANSWER-Hart, Austin and Kelsen
Brierly defines IL as state consent as the source of legal rules. In the absence of a
sovereign state, IL is always derived from state consent. Through state consent that we
know what the rules are. Emphasis on the rules (hart)
Instrumentalism - ANSWER-Realists, Policy-Orientated, process, new haven school
Higgins looks at the process by which IL are made (contrast to rule orientated
jurisprudence)
The processes matter and the outcomes are made (has both wight and meaning). Not
just a collection of rules. Democracy, human rights and justice are key.
Critical Legal Studies - ANSWER-Koskenniemi, Kennedy, new stream, NAIL
Attempts to disrupt dichotomy between legal formalism and legal realism. Considers
role of culture. Influenced by deconstructive techniques. Attempts to reveal concealed
bosses and hierarchies
TWAIL - ANSWER-Anghie, Mutua, Chimini, Gathii
Considers power relations between states. Looks at impact of IL on peoples, not just
states. Highlights role of colonialism. Challenges mainstream histories of IL.
Marxist Approaches to IL - ANSWER-Mieville, Marx, Chimni
IL as primarily influenced by economic relations between states that entrench class
difference (both within states and between states). Argues for the relevance of class as
a method of analysis and combines this with legal historical account to understand the
evolution of IL. Interrogates IL to identify the principle beneficiaries of process and rules.
Works to rethink role of liberalism in IL.
International Feminist legal theories also exists.
Legal formalism = legal positivism - ANSWER-Legal formalism is the separation of legal
reasoning (or 'application' of norms to facts) from normative or policy consideration.
Argues that judges and other public officials should be constrained in their interpretation
of legal texts because lowing freedom of interpretation undermines the rule of law.
Positivism is understood as an explanation of what law is.
Formalism is a positivist explanation of how law and legal systems operates.
Formalism is the application of a statue.
Questions and Answers
Definition of IL - ANSWER-The law that governs the relationship between states
Austin - IL is not law
Higgins - Il is a continuing process of authoritative decisions
Mutua - a predatory system that legitimizes, reproduces and sustains the plunder and
subordination of the third world by the West
Legal positivism - ANSWER-Hart, Austin and Kelsen
Brierly defines IL as state consent as the source of legal rules. In the absence of a
sovereign state, IL is always derived from state consent. Through state consent that we
know what the rules are. Emphasis on the rules (hart)
Instrumentalism - ANSWER-Realists, Policy-Orientated, process, new haven school
Higgins looks at the process by which IL are made (contrast to rule orientated
jurisprudence)
The processes matter and the outcomes are made (has both wight and meaning). Not
just a collection of rules. Democracy, human rights and justice are key.
Critical Legal Studies - ANSWER-Koskenniemi, Kennedy, new stream, NAIL
Attempts to disrupt dichotomy between legal formalism and legal realism. Considers
role of culture. Influenced by deconstructive techniques. Attempts to reveal concealed
bosses and hierarchies
TWAIL - ANSWER-Anghie, Mutua, Chimini, Gathii
Considers power relations between states. Looks at impact of IL on peoples, not just
states. Highlights role of colonialism. Challenges mainstream histories of IL.
Marxist Approaches to IL - ANSWER-Mieville, Marx, Chimni
IL as primarily influenced by economic relations between states that entrench class
difference (both within states and between states). Argues for the relevance of class as
a method of analysis and combines this with legal historical account to understand the
evolution of IL. Interrogates IL to identify the principle beneficiaries of process and rules.
Works to rethink role of liberalism in IL.
International Feminist legal theories also exists.
Legal formalism = legal positivism - ANSWER-Legal formalism is the separation of legal
reasoning (or 'application' of norms to facts) from normative or policy consideration.
Argues that judges and other public officials should be constrained in their interpretation
of legal texts because lowing freedom of interpretation undermines the rule of law.
Positivism is understood as an explanation of what law is.
Formalism is a positivist explanation of how law and legal systems operates.
Formalism is the application of a statue.
