Samantha Besson, ‘Theorizing the Sources of International Law’ in Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford and New York: Oxford University Press, 2010) pp. 164-185.
The study of international law has recently emerged as a popular field of philosophical inquiry among contemporary philosophers and international lawyers. The volume The Philosophy of International Law contains a collection of contributions from some of the leading contemporary authors dealing with philosophical questions of international law. International law is a particularly fruitful area for philosophical inquiry, untethered by the constraints of dogmatic national legal systems it purports to strive towards universalism as Paul Guggenheim, among countless others, has emphasized in his examination of positive international law. The exponential growth of international law since the end of the Second World War has presented an opportunity for a more practical philosophical examination not only of its sources and nature but also of specific legal issues.
The chapter by Samantha Besson entitled ‘Theorizing the Sources of International Law’ criticizes the position that international law, particularly customary international law, constitutes a primitive legal order rather than a legal system. Besson develops a normative positivist argument about the legality of international law and its sources that corresponds to a democratic (coordination-based) account of the legitimacy of international law-making process. Against this background, she discusses the existence and contours of secondary rules in international law and of a rule of recognition, in a way that illuminates the differences and the relations between domestic, regional and international law (internal and external legal pluralism).
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