
Contents
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2 Sources in the Scholastic Legacy: The (re)Construction of the Ius Gentium in the Second Scholastic
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I. Introduction I. Introduction
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II. Conceiving of International Law as a System II. Conceiving of International Law as a System
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1. The Enduring Notion of Systematicity: A Nineteenth-Century Construction 1. The Enduring Notion of Systematicity: A Nineteenth-Century Construction
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2. The Enduring Appeal of System-Denken in International Law Thought 2. The Enduring Appeal of System-Denken in International Law Thought
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III. Conceiving of the International Legal System: The Role of Sources III. Conceiving of the International Legal System: The Role of Sources
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1. The Co-Constitutive Relationship between Sources and Systematicity 1. The Co-Constitutive Relationship between Sources and Systematicity
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2. The Socially Constructed Status of Article 38 2. The Socially Constructed Status of Article 38
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3. The Necessary Social Practice of Legal Officials 3. The Necessary Social Practice of Legal Officials
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4. The Recognition of Customary International Law by Systemic Officials 4. The Recognition of Customary International Law by Systemic Officials
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IV. Concluding Remarks IV. Concluding Remarks
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Research Questions Research Questions
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Selected Bibliography Selected Bibliography
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28 Sources and the Systematicity of International Law: A Co-Constitutive Relationship?
Get accessGleider I. Hernández, Associate Professor (Reader) in Public International Law, and Deputy Director of the Global Policy Institute, at the University of Durham, United Kingdom.
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Published:05 February 2018
Cite
Abstract
This chapter illuminates the role that sources doctrine plays in construing international law as a system. It frames international law’s systemic qualities within the recursive relationship between sources doctrine and debates over international law’s systematicity. Sources doctrine reinforces and buttresses international law’s claim to constitute a legal system; and the legal system demands and requires that legal sources exist within it. International law’s systematicity and the doctrine of international legal sources exist in a mutually constitutive relationship, and cannot exist without one another. This recursive relationship privileges unity, coherence, and the existence of a unifying inner logic which transcends mere interstate relations and constitutes a legal structure. In this respect, the social practices of those officials who are part of the institutional workings of the system, and especially those with a law-applying function, are of heightened relevance in conceiving of international law as a system.
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