Current Legal Problems has just published my new piece, “The Dynamics of International Law Redux”, online – and it’s open access! The piece comes out of our project on The Paths of International Law in which we explore change processes in the international legal order, and it presents our guiding ideas and approaches as well as some empirical materials. The abstract is below – comments always welcome!
Abstract: Law is constantly caught between stasis and dynamism, between the production of legal certainty and the adaptation to a changing environment. The tension between both is particularly acute in international law, given the absence of legislative mechanisms on the international level and the high doctrinal thresholds for change through treaties or customary law. Despite this apparent tendency towards stasis, international law is changing frequently and rapidly in many areas, though in ways that are not well understood. This article seeks to begin an inquiry into these ways of change, starting from two vignettes of recent change processes and presenting a number of conjectures about core elements of a conceptualization of change in international law. The resulting picture reflects significant variation across different areas of international law, multiple paths of change outside traditional categories, and states in different—and not always central—roles. Much change observed in contemporary international law travels on paths and is advanced by authorities created by social actors and their practices relatively independently from doctrinal representations. This presents a challenge for doctrinal categories, and it should provoke a broader, empirical reconstruction of the social life of international law today—a far more dynamic but also less orderly life than typically assumed.
Many thanks go to the project team – Dorothea Endres, Nina Kiderlin, Pedro Martínez Esponda, and Ezgi Yildiz – for their research, comments and assistance. The research for this article was supported by the European Research Council under the European Union’s Horizon 2020 research and innovation programme (grant agreement no 740634)