Hadjigeorgiou on Beyond Formalism: Reviving the Legacy of Sir Henry Maine for CIL

Andreas Hadjigeorgiou, University of Groningen; University of Antwerp; Frederick University Cyprus, is publishing Beyond Formalism: Reviving the Legacy of Sir Henry Maine for CIL: The Theory, Practice and Interpretation of Customary International Law in The Theory and Philosophy of Customary International Law and Its Interpretation (P. Merkouris, J. Kammerhofer, and N. Arajavi, eds., Cambridge University Press, 2021, Forthcoming). Here is the abstract.

Not all ontological concerns which surround the concept of (customary) international law (CIL) have disappeared, rather they have shifted. Whereas the existence of a genuine international legal system is taken as a ‘given’, questions still remain about its genesis and the position of CIL within it. Some for example, still question whether we can truly speak of customary international law, while others recast the concept of CIL through a formalist perspective. Accordingly, formalism, in its moderate form, treats formal sources, documents and/or proclamations as ‘better’ tools for both a) the preservation of existing rules of CIL, and b) the ‘creation’ of new legal rules. At its more extreme, formalism purports the view that c) IL (or even CIL) finds its genesis only in formal sources, documents, or proclamations. While some formalisation is undeniably helpful and even necessary, we should be more critical of this formalist paradigm. In this way, the chapter seeks to respond to these positions through a revival of the legacy of Sir Henry Maine and the evolutionary conception of law that he laid out the first foundation for. By operationalizing this conceptualization, a new vision spawns for CIL: a vision beyond mere formalism.

Download the essay from SSRN at the link.

Stern on Legal Fictions and Legal Fabrication @ArsScripta

Simon Stern, University of Toronto Faculty of Law, has published Legal Fictions and Legal Fabrication at Fictional Discourse and the Law 191 (Hans Lind, ed., Routledge, 2020).

This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. Sumner offers a genealogical account: on his view a doctrine’s fictional status depends crucially on the doctrine’s source — and yet scholars who draw on his theory rarely pay any heed to this criterion. For Fuller, the fictional status of a doctrine depends on its falsity, and this requirement, too, accords poorly with the category of legal fictions, when we consider the examples that usually account for scholarly interest in the subject. I suggest that a better way of understanding legal fictions is to see them as achieving, in legal thought, what metafiction achieves in the literary realm. I close by developing some implications of this analogy.

Download the essay from SSRN at the link.