Assignment for Wed 4/25: secs. I-IV.A (Culver, pp. 494-510)

Assignment for Fri 4/27: secs. IV.B-concl. (Culver, pp. 510-521)

You can find introductory material for the Koskenniemi paper in Culver (pp. 459-461), and remember Culver’s glossary when you encounter Latin legal terminology as you read the paper.*

Koskenniemi’s paper is primarily critical, attacking the idea that international law can be given an non-political foundation. In this respect, his views are analogous to the views about municipal law of American Legal Realists like Holmes, Llewellyn, and Frank and Critical Legal Theorists like Unger. The heart of his view lies in the opposition between concreteness and normativity he introduces first in section II. He locates this opposition in a number of contexts in the course of the paper, sometimes shifting to a different but analogous pair of terms. This means that most of the paper is concerned with what international law is not—i.e., with the inadequacy of various views of it. His suggestions for a more adequate view appear most clearly only in his concluding section (pp. 520-521).

Our focus will be on following his criticisms, which have the side-effect of introducing (much more than Grotius or Hart) the flavor of the kinds of cases and kinds of arguments that appear in this branch of the law. Ask yourself how people holding the views he attacks might respond to his criticisms.

You might also ask yourself how Dworkin’s view might be extended to this context. For example, principles in his sense are designed to be normative (in the sense that they are binding) while still reflecting the concreteness of specific circumstances through their varying weights. And the dimensions of “fit” and “substance” he uses to describe the way Hercules interprets the law are also related to the ideas of concreteness and normativity (by way of the connection of the latter with what Dworkin calls “political morality”). In short, what do you think Koskenniemi might say about an application of ideas like Dworkin’s to international law?

Koskenniemi will refer to many cases decided by the International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ). If you are curious about details you can find decisions of both courts on line at the ICJ website (http://www.icj-cij.org/).