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Human Dignity and the Foundations of International Law : Studies in International Law - Patrick Capps

Human Dignity and the Foundations of International Law

Studies in International Law

Paperback

Published: 23rd June 2010
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International lawyers have often been interested in the link between their discipline and the foundational issues of jurisprudential method, but little that is systematic has been written on this subject. In this book, an attempt is made to fill this gap by focusing on issues of concept-formation in legal science in general with a view to their application to the specific concerns of international law. In responding to these issues, the author argues that public international law seeks to establish and institutionalise a system of authoritative judgment whereby the conditions by which a community of states can co-exist and co-operate are ensured. A state, in turn, must be understood as ultimately deriving legitimacy from the pursuit of the human dignity of the community it governs, as well as the dignity of those human beings and states affected by its actions in international relations. This argument is in line with a long and now resurgent Kantian tradition in legal and political philosophy. The book shows how this approach is reflected in accepted paradigm cases of international law, such as the United Nations Charter. It then explains how this approach can provide insights into the theoretical foundations of these accepted paradigms, including our understanding of the sources of international law, international legal personality and the design of global institutions.

Capps masterfully integrates discussion of the work of influential thinkers across the spectrum of poltical philosophy, legal philosophy and international law. Human Dignity and the Foundations of International Law is an ambitious contribution to the theory of international law and the place of 'solidarist' values within the international community. It presents not only an extensively-worked conceptual framework, but also a challenge, - to practitioners of international law Elaine Webster Social and Legal Studies September 2010

Acknowledgementsp. vii
Introductionp. 1
Philosophical Problems for International Lawyersp. 9
Conceptions of International Law in Space and Timep. 11
Scepticism in the Philosophy of International Lawp. 16
Theory and Practicep. 18
Conclusionp. 20
The Methodological Problemp. 23
The Methodological Problem in Legal Sciencep. 25
The Methodological Problemp. 25
Is International Law Racist?p. 27
The Ontological Problemp. 33
Conceptual Analysis and Focal Analysisp. 39
Conceptual Analysisp. 40
Focal Analysisp. 43
Conceptual Analysis, Focal Analysis and the Raw Datap. 45
The Legal Scientistp. 47
Conclusionp. 49
The Conceptual Analysis of International Lawp. 51
Hart's The Concept of Law as a Form of Conceptual Analysisp. 52
Legal Positivismp. 53
Hart's Concept of Lawp. 56
Hart's Non-ambitious Concept of Lawp. 57
Hart's Ambitious Concept of Lawp. 59
International Law as an Indeterminate Form of Lawp. 61
Usages and Conventionsp. 65
The Legal Scientist, the Ordinary Language User and the Legal Officialp. 65
Law as a Social Practicep. 68
Theoretical Valuesp. 69
Law as a Conventional Practicep. 70
Paradigm Cases and the Internal Point of Viewp. 74
Conclusionp. 75
Focal Analysis and Ideal-Typesp. 77
Purposivity and International Lawp. 80
Human Dignity and the Purpose of International Lawp. 80
Normative Positivism and International Lawp. 83
Focal Analysis and Ideal-Typesp. 84
Action and Axiologyp. 85
Ideal-Typesp. 86
The Ideal-Type and Collective and Institutionalised Social Practicesp. 88
General Conceptsp. 91
Weber on International Lawp. 93
Ideal-Types and Practical Reasonablenessp. 93
The Concept of International Law Relies Upon the General Concept of Lawp. 94
Purpose and Meaningp. 98
Practical Reasonableness and Ideal-Typesp. 101
Components of the Concept of International Lawp. 102
Practical Reasonableness and Human Dignityp. 103
The Idea of Human Dignityp. 106
Human Dignity as Empowermentp. 108
The Substantive Questionp. 109
Generic Features of Agencyp. 112
Distributive and Authoritative Questionsp. 114
The Authoritative Questionp. 115
Action and the Generic Features of Agencyp. 117
The Universalisation of Generic Rightsp. 119
The Distributive Questionp. 121
The Concept of International Lawp. 122
Dignity in the Kingdom of Endsp. 122
From the Kingdom of Ends to Positive Lawp. 123
Conclusionp. 125
The Logic of the Autonomy Thesisp. 127
The Autonomy Thesisp. 130
Structure of the Autonomy Thesisp. 131
Hobbes' Version of the Autonomy Thesisp. 132
Kant's Version of the Autonomy Thesisp. 136
Oppenheim's Version of the Autonomy Thesisp. 139
Weil's Version of the Autonomy Thesisp. 141
Failure of the Autonomy Thesisp. 142
Adjudication and Functionp. 143
Legitimacy as a General Condition for the Success of the Autonomy Thesisp. 145
The Autonomy Thesis and International Lawp. 146
Public Practical Reasonsp. 149
Practical Reasonableness and the Lawp. 151
Conclusionp. 154
Law as a General Conceptp. 157
The Bare-Autonomy Thesis and the Integrated-Autonomy Thesisp. 159
Moral Reasoning and Lawp. 161
Ideal and Non-ideal Theoryp. 162
Justification of the Autonomy Thesisp. 164
Immorality of the State of Naturep. 164
Law as a Community Governed by an Omnilateral Willp. 168
Kant's Justification for Lawp. 169
Enforcementp. 173
Justification of the Integrated-Autonomy Thesisp. 175
Law Constitutes our Freedom from Dependencyp. 177
Rousseau's Concept of Lawp. 182
The General Concept of Lawp. 183
Conclusionp. 185
The Foundations of the International Legal Orderp. 187
A Justification for International Lawp. 188
Civil Incorporation and the Sovereign Statep. 190
The State and Civil Incorporationp. 191
Sovereignty and Collateral Moral Rightsp. 193
The State and Agencyp. 195
International Legal Orderp. 197
Kant's 'State of War'p. 197
Why is the State of War Not-rightful?p. 199
The Integrated-Autonomy Thesis and the Sovereignty of International Lawp. 201
Institutional Designp. 203
International Legal Order as a Suprastate Systemp. 204
International Legal Order as an Interstate Systemp. 205
Interstate or Suprastate Institutional Design?p. 208
Conclusionp. 210
Lauterpacht and the Progressive Interpretation of International Lawp. 210
Unanswered Questionsp. 212
The Discontinuity Thesisp. 215
Alternatives to International Legal Orderp. 218
Sovereign States are Not Similar, in Relevant Ways, to Human Agentsp. 218
A Rejection of the Universal State, Not International Legal Orderp. 220
The Sovereign State Cannot be Considered an Agentp. 222
Transgovernmental Law Instead of International Law?p. 226
Rejection of International Legal Orderp. 229
Sovereign States are Not Similar, in Relevant Ways, to Human Beingsp. 229
Prudence and International Legal Orderp. 230
The Environment in which Sovereign States Find Themselves is not Similar in Relevant Ways to the Environment in which Human Beings Find Themselvesp. 232
Are International Relations Not Unreasonable?p. 234
Approximations to International Lawp. 235
Surrogates, Analogues and Approximationsp. 237
The Possibility of Perpetual Peacep. 239
Conclusionp. 241
International Legal Order in Ideal and Non-ideal Theoryp. 243
Ideal Theoryp. 245
Norm-Creationp. 246
Customp. 248
Interpretationp. 250
Enforcementp. 255
Failure of Interstate Design for Ideal Theoryp. 255
Non-Ideal Theoryp. 257
Juridical and Moral Concepts of the Statep. 258
Institutional Architecture and Norm-Creationp. 265
Enforcementp. 268
Self-Defencep. 269
The Concept of International Law and the Role of the International Lawyerp. 270
Conclusionp. 273
Bibliographyp. 277
Indexp. 291
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9781849460897
ISBN-10: 1849460892
Series: Studies in International Law
Audience: BAC
Format: Paperback
Language: English
Number Of Pages: 306
Published: 23rd June 2010
Publisher: Bloomsbury Publishing
Country of Publication: GB
Dimensions (cm): 23.5 x 15.9  x 1.7
Weight (kg): 0.49
Edition Number: 1