Browsing by Author "Garcia-Salmones Rovira, Monica"

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  • Garcia-Salmones Rovira, Monica (University of Helsinki, 2012)
    A Science of Interests: The Project of 20th Century Positivist International Law This research aims to contribute to a project of reconceptualisation of the concept of law within which discussions over publicness are possible. It is a study of the substance and of the form of positive international law. In particular, it constitutes an investigation of how each determines the other. The research addresses geologically the change in the substance and form of international law in the 20th century. It analyses how the economic view of the world of several influential international lawyers inaugurated a new style of doing theory. The argument set forth is that international law was both re-founded on the premises of an internationalist sense of economic interdependence and transformed into a science. The outcome of this process was doctrinally the inauguration of economic legal-positivism; and politically a change of language: from the expansionist empire to universal internationalism. However, the study questions the idea that imperial practices were abandoned in the course of the renewal of legal theory. The work of two of the most respected theoreticians of 20th century international law, Lassa Oppenheim (1858-1919) and Hans Kelsen (1881-1973), constitutes the core of this research which follows the thread connecting their theories. Research Questions: The legal theoretical tenets of economic legal positivism focus on setting out the conditions of a theory under which international legislation would be possible. Based on this premise, the following research questions are posed: What is the particular political project of economic-positivist international law? How does this political project influence legal theory? Why is it important to unearth today the economic foundation of positivist international law? Method: The research employs the geological method, proposed originally by Joseph H.H. Weiler. The geological method contributes to incorporate in the study both the historical and the philosophical aspects of the formation of the positivist international legal theory. The connections existing between international legal positivism and both the European philosophical tradition and the tradition of international law to the present day are thereby uncovered. The use of philosophical realism seeks to provide a holistic approach to the theory of economic-positivist international law and to establish the rule of alterity epistemologically (the fact that human beings are social beings). Conclusions: The thesis concludes that the theoretical conditions of international legal positivism still belong today to a philosophy of interests which constitutes an individualist philosophy. This fact continues to obstruct the political discussion on what is good and just in the global order. The establishment of legal instruments to pursue that just order requires a reconceptualisation of law.