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Positivism, New Haven Jurisprudence, And The Fragmentation Of International Law

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Chapter Summary

This chapter proposes that fragmentation can begin to be addressed by going behind each concept of international law to examine their respective pre-concept commitments that may divide international legal theories. It examines two leading and apparently diametrically opposed theories: positivism, which views law as a corpus of rules created largely by states and identified in accord with sources of law, and policy-oriented jurisprudence, which views law as a dynamic process of decision-making in which rules might play only one part in determining the outcomes in international problems. The chapter suggests that although the two theories are conceptually different and, in some senses, incompatible, their differences are not meaningful conceptual differences. It concludes by hypothesizing that differences among other international legal theories may similarly be clarified by examining their pre-concept commitments, a process that could help international actors understand and bridge their respective perspectives on international law.

Keywords: international law; international legal theories; policy-oriented jurisprudence; positivism



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