On the foundations of legal reasoning in international law
Issues pertaining to the "foundations" of legal reasoning in international law break down into several discrete questions: what do statements about law mean; how do they get their meaning: to what do legal terms refer; in what does knowledge of law consist; how do we reason with legal concepts; what constitutes a criterion for argumentative success; how do bodies of legal concepts combine to form systems; is the conceptual organisation of different types of legal system, such as municipal law and international law, necessarily (or even factually) the same at some fundamental level?... This thesis is concerned with some measure with all of these questions, but the focus throughout is on those of the meaning of what we say about law, of legal knowledge, and of topological issues regarding legal systems (that is, how various types of legal system stand, conceptually, to one another). The thesis falls into two parts. The first, which is critical in nature, looks at some of the ways in which modern positivism has attempted to supply answers to these questions. It shall be argued that underlying those attempts is a particular view about the foundations of legal reasoning which has remained fairly constant in modern legal theory, not only among the positivists but also commonly among their sceptic rivals. Several difficulties with this view are raised and explored, all of which have contributed to the notion that international law is, when viewed through the spectacles of a municipal lawyer, at best a primitive system of law. The heart of Part I is a discussion of the character of legal knowledge. This takes place in the context of an account of the "Institutional Theory of Law" (ITL), as propounded by Neil MacCormick and Ota Weinberger. The argument that emerges is one broadly in favour of ITL, though critical of the methodological and philosophical assumptions on the basis of which the main edifice of the theory rests. It is submitted that such assumptions are the result of misplaced views about semantics and the nature of reference. Part I ends with the suggestion of an alternative, and hopefully more stable, strategy for generating the account of legal knowledge for which ITL strove. Part II comprises a positive thesis about the foundations of legal reasoning in international law, developed on the back of the strategy in Part I.