Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship

• Author: Jean d'Aspremont
• Position: Professor of Public International Law, University of Manchester, and Professor of International Legal Theory, Amsterdam Center for International Law, University of Amsterdam

1119

Cognitive Conflicts and the

Making of International Law:

From Empirical Concord to

Conceptual Discord in Legal

Scholarship

Jean d

瀞

Aspremont*

TABLE OF CONTENTS

I. INTRODUCTION .............................................................. 1120

II. EMPIRICAL CONCORD: THE PLURALIZATION OF

INTERNATIONAL LAWMAKING ........................................ 1123

A. Manifestations of Pluralization in the

Practice of International Lawmaking............... 1124

B. Persisting State Dominance? ............................. 1126

III. CONCEPTUAL DISCORD: THE PARADIGMATIC

DIVIDES IN THE COGNITION OF INTERNATIONAL

LAWMAKING ................................................................... 1129

A. Subject-Based Approaches to Lawmaking ........ 1129

B. Static Pedigree-Based Approaches to

Lawmaking ......................................................... 1134

C. Dynamic Participation-Based Approaches

to Lawmaking ..................................................... 1137

D. Dynamic Output-Based Approaches to

Lawmaking ......................................................... 1142

E. Dynamic Pedigree-Based Approaches to

Lawmaking ......................................................... 1143

IV. EPISTEMIC PLURALISM AND EPISTEMOLOGICAL

SELF-INTEREST .............................................................. 1145

* Professor of Public International Law, University of Manchester, and Professor of

International Legal Theory, Amsterdam Center for International Law, University of

Amsterdam.

1120 vanderbilt journal of transnational law [vol. 46:1119

I. INTRODUCTION

It has long been claimed that international lawmaking has

grown pluralized in the sense that it has allegedly moved away from

the traditional Westphalian and state-centric model of lawmaking.1

New processes outside traditional diplomatic channels and involving

non-state actors are said to qualify as lawmaking, and the products

thereof have come to be ascertainable as genuine legal rules.2 Such

an assertion of a pluralization of international lawmaking is now

common, and those studies that fail to give it sufficient emphasis are

demoted to antediluvian scholarship.3

This uncontested prejudice in favor of pluralistic representations

of lawmaking processes4 calls for a preliminary remark that will

inform the argument subsequently made in this Part. Although

uncontested in mainstream international legal scholarship,5 the mere

finding that international lawmaking is now more heterogeneous,

accommodates new forms of law-generating processes, and gives a say

to new types of actors presupposes that international lawmaking was,

in the past, monolithic and state-centric. In that sense, the claim of

the pluralization of international law rests on a strong prejudice

1. See generally Peter M. R. Stirk, The Westphalian Model and Sovereign

Equality, 38 REV. INT’L STUD. 641, 641–60 (201 2) (discussing the Westphalian model

and the seemingly recent trend away from this lawmaking process). For some critical

remarks, see Stéphane Beaulac, The Westphalian Legal Orthodoxy – Myth or Reality?,

2 J. HIST. INT’L L. 148, 148–77 (2000).

2. For a few examples, see Jutta Brunnée & Stephen J. Toope, International

Law and Constructivism: Elements of an Interactional Theory of International Law, 39

COLUM. J. TRANSNAT’L L. 19 (2000–2001).

3. See ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INT ERNATIONAL

LAW, 97 (Malcolm Evans & Phoebe Okowa eds., 2007) (“Focus on the continued

exclusion of NGOs from formal aspects of international lawmaking misses the political

and social reality of their increased participation on state and IGO behavior—whether

this is deemed favourable or otherwise.”).

4. See infra Part II (providing a brief overview of the state of the literature in

this respect). For critical remarks, see Jean d’Aspremont, The Doctrinal Illusion of the

Heterogeneity of International Lawmaking Processes, in 2 SELECT PROCEEDINGS OF THE

EUROPEAN SOCIETY OF INTERNATIONAL LAW 297, 297–312 (Hélène Ruiz Fabri, Rüdiger

Wolfrum & Jana Gogolin eds., Hart Publishing 2010), available at

http://paper.ssrn.com/sol3/papers.cfm?abstract id=1230964 (demonstrating that “the

contemporary assertion that international lawmaking has become more heterogeneous

is less the result of an actual practice than the outcome of an inclination of scholars to

expand their material of study”).

5. See d’Aspremont, The Doctrinal Illusion of the Heterogeneity of

International Lawmaking Processes, supra note 4, at 297–312 (recognizing the

contemporary assertion that international lawmaking has become more

heterogeneous).