A special regime is a subpart of the international legal system. This is why, in international legal discourse, there are several different conceptions of a special regime. For the same reason as lawyers disagree about the proper definition of the concept of international law, not only do they have different conceptions of an international legal system but they also assume different definitions of the concept of a special regime. There are considerable differences among the different conceptions of a special regime. This observation raises questions about their relative utility. Chapter 1 suggests the adoption of the conception that characterizes special regimes as communities of practice – as it helps to manage and control the effect of legal fragmentation compared to other conceptions.

The ILC Study Group on Fragmentation of International Law asserted that the proliferation of special regimes poses a threat to the unity of the international legal system. Chapter 6 challenges this assumption. It builds on the distinction made in epistemology between knowledge-that and knowledge-how. The idea of a special regime as a community of practice makes it a system of knowledge-how. As such, it is compatible with all of the legal positivist’s, legal realist’s and legal idealist’s conceptions of an international legal system, which either see it as a system of knowledge-that or a combination of a system of knowledge-that and a system of knowledge-how. In the former case, in no way does the proliferation of special regimes affect the unity of the international legal system. In the latter case, the unity of the international legal system is indeed affected, but only in a positive sense, as it increases the efficacy of international law relative to the assumed legal ideal.

Contestations about the contents and validity of laws and legal principles are fundamental to the (international) legal profession. After all, when engaging with legal norms, disagreements about their meaning and validity a central part of the day-to-day work of legal professionals specialising in international law, including legal counsel representing governments, international judges, legal officers working for international organisations and non-governmental organisations, and legal academics. We propose a practice-oriented approach to empirically research such interpretive legal contestations by groups of legal professionals. Using an interdisciplinary perspective, we contribute to IR norms research by drawing on not only IR practice theory, but also Bourdieu-inspired research within the Sociology of International Law and ongoing discussions on legal realism in International Legal Theory, including what we have called European New Legal Realism. After outlining how to implement our approach using either a Bourdieusian perspective or the concept of communities of practice, we use normative contestations in and around climate change law to illustrate its added value. Such an approach not only promises to make interpretive legal contestations visible empirically, but also emphasises how interpretive legal contestations matter as they reflect underlying power dynamics and may result in normative legal change in practice.

This chapter explores how biblical law is treated in the gospels, in Paul, and in other New Testament texts. It shows how recent scholarship has demonstrated that Jesus and Paul treat the law in more positive fashion than they are usually given credit for.

This chapter re-inserts the (rethought) concept of territory into the legal-theoretical framework, offering a look at how this concept can be realised and might differently operationalise concepts such as sovereignty and jurisdiction. Taking the concept of sovereignty first, the chapter operationalises this concept as a bundle of legal rights, duties, etc. informed by legal realist methods and social constructivism. The chapter then turns to the concept of jurisdiction, problematising the ‘boundaries’ of and reterritorialising extraterritorial jurisdiction. The chapter offers an alternative to the ‘ownership’ and ‘exclusive’ model of legal rights, which otherwise has at its core a reified and flat territory. The final part explores actorhood, demonstrating how the spaces of international organisations can be understood as their territories. Taking as its starting point the possibility of territorial pluralism, multiplicity, and continuous (re)production, the chapter ends with an account of territories proliferating rather than diminishing. Taking the idea of reterritorialising seriously, it proposes a legal account of the relationship between actors and their spaces.

The scale of the Great Depression and the obvious need for federal intervention mooted laissez-faire arguments. Nevertheless, the continuing vitality of laissez-faire sparked debates in law, economics, and public policy about the proper role of government that, in important ways, continue to the present. The chapter locates the rise of infrastructure as a common term within modernization theory and development economics, which provide the post-World War II with a western-centered model of capitalist growth. Modernization theory drew on social science, economics, and political theory to map society and economy as reciprocal systems that were amenable to policy intervention. Infrastructure” begins to circulate in the early 1950s as a novel concept among staffers at the World Bank and later in Congressional debates over the Marshall Plan. It first takes on a narrow meaning of military facilities and the resources that supported those facilities. From there, it becomes a portable concept that development economists could use to predict the “take off” or stagnation of emerging societies measured by rates of growth, GDP, social stability, and technological advance. We see our contemporary sense of infrastructure crystallize in the 1950s and 1960s as the material precondition for a flourishing modern capitalist democracy.

“The problem of absolutes” refers to the difficulty of grounding and defending absolute prohibitions in a legal system that is rationalized on the basis of means-ends rationality. (An example might be the difficulty in identifying an absolute prohibition on torture that is not susceptible to being reinterpreted, read down, or negotiated away.) In the present paper, I associate this difficulty in the first instance with Max Weber’s account of the rationalization of law and the distancing of law from any sense of sacred or transcendent obligation. But other developments need to be considered as well. I argue that the problem is as much about morality as it is about law. The two law and morality develop together in a complementary way, and the problem of legal absolutes tends to be matched by a corresponding difficulty with moral absolutes, just as the desanctification of law tends to be matched by a desanctification of morality

After describing the backgrounds and roles of the Justices on the Hughes Court, the chapter examines several theories about how courts decide cases. The theories counterpose “formulas” to ideas about social needs, with Hughes, Felix Frankfurter, and Benjamin Cardozo offering versions of the latter. The theories are linked to broader conceptions of American government articulated by Herbert Croly and Arthur Bentley.

This concluding chapter argues that the interplay between international law and empiricist history has served to offer a new grounding for formalism in an extremely fraught political context. Historical work is increasingly relied upon as a source of substantive claims about what law really means and of scientific methods for studying the past. Lawyers rely on the scientific tone and resulting truth effects of accounts presented by professional historians to intervene in contemporary debates by using the claims made in those narratives about international law’s ‘true’ origins or ‘real’ history. Appeals to contextualist histories allow lawyers to present their arguments as being grounded on evidence and to characterise the other side in a legal debate as ideologically motivated, presentist, or engaged in myth-making rather than proper scholarship. The chapter argues that international lawyers cannot look to historians (or anyone else for that matter) to save the day with impartial and verifiable evidence-based interpretations of what international law really is, means, or stands for. What then is to be done? The chapter concludes by exploring why and how we might study the international legal past even knowing that writing histories of international law is inevitably a partisan act.

This chapter challenges the representations of international law that dominate the turn to history. The vision of international law as metaphysically grounded and of lawyers as scholastics or moralising judges is resonant because it shores up a familiar fantasy. Yet that vision bears little relation to the ways in which contemporary international lawyers use the past in the practice of making legal arguments. This chapter explores the indeterminacy and capaciousness of the past materials out of which international legal arguments are assembled and the varied roles lawyers are trained to adopt in making such arguments. It shows that international lawyers are already immersed in a centuries-long debate over the grounds of law’s authority, into which historicising techniques and anti-metaphysical approaches have long been incorporated. Many influential forms of international legal thought, including legal realism, positivism, critical legal studies, and game theory, have been informed by an anti-metaphysical orientation. Far from being a revolutionary insight, the claim that historicising a text can settle its meaning is just one of many claims that are already part of the broader argumentative world of international lawyers, and no more likely than any other to resolve interpretative controversies or offer the truth of legal history.

International lawyers are very familiar with the claim that international law has taken a turn to history since the tumultuous decade of the 1990s. As debates over the interpretation of past texts, events, and practices have intensified in the context of a rapidly changing field of international law, history has been presented as offering a silver bullet. While international lawyers are criticised for instrumentalising or mythologising the past in ways that are biased, partisan, and political, professional historical methods are presented as offering an objective, impartial, and evidence-based alternative. This chapter outlines the cross-disciplinary hermeneutic of suspicion that has structured the resulting debates over how the history of international law is understood. It sets out the assumptions underpinning that debate and explores its consequences for the way lawyers and historians represent the nature, functions, potential, role, and limits of international law.

This chapter challenges the claim that historians are able to offer value-free, impartial, and verifiable observations about the history of something called ‘international law’. While numerous historians have criticised international legal scholars for misusing the past to tell stories, draw analogies, or link material from diverse periods, historical work is presented as a process of finding evidence rather than making arguments, committed to reality rather than myths. This chapter argues that histories of international law are necessarily as partisan and political as those produced by the most pragmatic of lawyers. Any study that is described as offering a history of something called ‘international law’, or of a subfield of international law such as international economic law or human rights law, necessarily makes normative and political choices about what international law is and where it is to be found. To show how that works in practice, the chapter explores three empiricist historical accounts that are overtly presented as offering correctives to the distorted, presentist, or incomplete histories of international law produced to date – Lauren Benton and Lisa Ford’s Rage for Order, Samuel Moyn’s The Last Utopia, and Quinn Slobodian’s Globalists.

Cohen explores the origin of realism and argues that a wide range of schools of American legal thought drew from various aspects of legal realism. He notes that these various strands have converged and have become mutually reinforcing. International relations scholarship has been refracted through legal realism; American international law scholarship has borrowed from constitutional law scholarship already suffused with realism. He concludes that American legal realism has always had counterparts in other parts of the world, and one could question whether the thick lines between realism and positivism look much thinner and more porous in actual practice.