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Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship

Posted by on Friday, November 8, 2013 in Articles, Vol. 46 No. 4, Volume 46, Volumes.

It has long been claimed that international lawmaking has grown pluralized in the sense that it has allegedly moved away from the traditional Westphalian and state-centric model of lawmaking.  New processes outside traditional diplomatic channels and involving non-state actors are said to qualify as lawmaking, and the products thereof have come to be ascertainable as genuine legal rules.  Such an assertion of a pluralization of international lawmaking is now common, and those studies that fail to give it sufficient emphasis are demoted to antediluvian scholarship.

This uncontested prejudice in favor of pluralistic representations of lawmaking processes calls for a preliminary remark that will inform the argument subsequently made in this Part. Although uncontested in mainstream international legal scholarship, the mere finding that international lawmaking is now more heterogeneous, accommodates new forms of law-generating processes, and gives a say to new types of actors presupposes that international lawmaking was, in the past, monolithic and state-centric. In that sense, the claim of the pluralization of international law rests on a strong prejudice about the state of the prepluralized era of lawmaking. In that sense, the empirical finding of a pluralization of international lawmaking, albeit being almost unanimously shared among observers and scholars, manifests consensus on some preconceived data that is the preexistence of something like the Westphalian order. Needless to say that such preconceived data is itself the expression of a construction.

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