1. I elaborate on the methodological dangers involved in positing the mode of law's existence in other work. The point, in short, is that legal theory has for some time now been dominated by the following analytical procedure: first, one posits the existence of objects (e.g. abstract objects, such as laws); second, one attributes properties to those objects, such that those properties function as criteria under which the existence of those objects can be ascertained (e.g. laws must conform to certain principles of reasonableness, or they must be part of the objective validity of norms, etc.); third, one considers what access we have to those objects, such that that access is reliable (this is the traditional realm of epistemology); and fourth – this being a step undertaken in the social sciences rather than the sciences – one considers the role of those objects, with their properties, and given our access to them, in the lives of human beings (this is known as the problem of normativity). The problem is that once one has proceeded through the first three steps, the last step results in the utilization of a mode of explanation of behaviour that suits the mode of existence (and our access to it) that has been enunciated in the first three steps. The resulting mode of explanation of behaviour, more often than not in contemporary legal theory, is that of largely conscious, deliberative, and atomized individuals said to be involved in short-term reasoning, where the principal analytical problem becomes where to locate the motivational force of the object in relation to that reasoning process (this is known as the debate between internalism and externalism). Undertaking this procedure in legal theory results in putting the cart before the horse: the picture of behaviour is determined by the prioritization of the ontological ambition. Instead, what we need to consider first is what picture of behaviour we wish to use. The picture I offer in this paper is an epistemologically rich account of legal work located in specific institutional contexts.

2. I focus on M. Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, adopted by the International Law Commission at its 58th session (2006) (hereinafter Report, or ILC Report); but see also ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, adopted by the International Law Commission at its 85th session (2006) (hereinafter Conclusions), and submitted to the UN General Assembly as a part of the Commission's report covering the work of that session, 2006. Both were last accessed by the author at http://www.un.org/law/ilc/ on 24 May 2007.

3. The Report, supra note 2, at 1. I focus on the Report, rather than the Conclusions (supra note 2), because it assists me in revealing in more detail the philosophical foundations, and the qualifications expressed thereto, of the methodology adopted by the ILC.

4. supra note 2.

5. Report, supra note 2, at 1.

6. Ibid., at 6. Indeed, elsewhere, the Report notes that ‘the issue of institutional competencies is best dealt with by the institutions themselves’ and that the ILC ‘has instead wished to focus on the substantive question – the splitting up of the law into highly specialized “boxes” that claim relative autonomy from each other and the general law’: ibid., at 13. I shall return to this endorsement of the severability of the institutional and the epistemological dimension of law in the fifth part of this paper. It is important, however, in the light of the narrative of the Report, to note that the decision to sever the institutional and legal dimension of fragmentation is made self-consciously and confidently at the outset of the Report.

7. Ibid., at 7.

8. Ibid.

9. Ibid.

10. Ibid., at 8.

11. Ibid., at 9.

12. Ibid.

13. Ibid., at 14.

14. S. E. Merry, ‘Legal Pluralism’, (1988) 22 Law & Society Review 869. Elsewhere, the report also cites B. Santos, Toward a New Common Sense. Law, Science and Politics in the Age of the Paradigmatic Transition (1995), but this work is also not discussed in any detail.

15. S. Roberts, ‘After Government? On Representing Law without the State’, (2005) 68 Modern Law Review 1–24. Of course, the Report cites many other references, many of which are discussed in an early paper in this journal: see M. Koskenniemi and P. Leino, ‘Fragmentation of International Law: Postmodern Anxieties?’, (2002) 15 LJIL 553. I shall return to this paper, as well as to legal pluralism more generally, in section 5 and the conclusion to my paper.

16. The three different rule-complexes are ‘the (universal) rules of the UNCLOS, the (regional) rules of the OSPAR Convention, and the (regional) rules of EC-EURATOM’: Report, supra note 2, at 10.

17. Ibid., at 12.

18. Ibid.

19. Ibid., at 13.

20. Ibid., at 15.

21. Ibid., at 16 (emphasis added).

22. Ibid.

23. Ibid., at 18.

24. Ibid.

25. Ibid., at 20.

26. Ibid., at 18.

27. Ibid., at 19. The Report mentions a number of works it considers of relevance to the question of conflicts between norms: see ibid., 24, at n. 21. Although I do not discuss it here, one further relevant reference, particularly in the context of a conceptual structure of conflicts between norms, is a forthcoming book by L. Zucca, Constitutional Dilemmas – Conflicts of Fundamental Legal Rights in Europe and the US (2007). From what I have seen of that work, however, it nevertheless also operates within a particular understanding of legal language that considers it possible to separate the understanding of rules from their factual adaptability. For a recent dissection of the concept of conflict, see S. Besson, The Morality of Conflict: A Study on Reasonable Disagreement in the Law (2005).

28. Report, supra note 2, at 21.

29. Ibid.

30. Ibid., at 22.

31. Ibid.

32. Ibid., at 23. The invocation of the ‘same subject matter’ appears often enough in the literature on fragmentation of international law. Consider the following statement from Enzo Cannizzaro: ‘In situations in which the two courts are called on to qualify legally the same or analogous conduct under rules which are formally different, although of identical content . . . an analysis of the scope of their respective jurisdictions might serve to avoid overlapping judicial findings’. E. Cannizzaro, ‘Interconnecting International Jurisdictions: A Contribution from the Genocide Decision of the ICJ’, (2007) 4 European Journal of Legal Studies, accessed by the author at www.ejls.eu on 11 October 2007 (emphasis added).

33. Report, supra note 2, at 24.

34. Ibid., at 25.

35. Ibid.

36. Ibid., at 27.

37. Ibid., at 28. It is partial because there is an acknowledgement of the ‘many understandings of the nature of the difference between “rules” and “principles”’. Ibid.

38. Ibid., at 33.

39. Ibid., at 33.

40. Ibid., at 34.

41. Ibid.

42. Ibid., at 35.

43. Ibid., at 36.

44. Ibid., at 36.

45. Ibid., at 485. I note that at 484 the Report notes that it ‘has not aimed to set up definite relationships of priority between international law's different rules or rule-systems’, but, as I have noted, this is difficult to reconcile with the position taken in the introduction as to the possibility of such a systematic view.

46. Ibid., at 487.

47. Ibid., at 488.

48. Ibid.

49. Ibid., at 491.

50. Ibid., at 492.

51. Ibid., at 493.

52. Ibid.

53. Ibid., at, page 255.

54. Ibid., at, page 256.

55. B. Jackson, ‘Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence’, (2000) 13 (4) International Journal for the Semiotics of Law 433; and B. Jackson, Law, Fact and Narrative Coherence (1988).

56. I focus on G. Samuel, Epistemology and Method in Law (2003).

57. Jackson, ‘Literal Meaning’, supra note 55.

58. Ibid., at 434.

59. Ibid.

60. Ibid., at 437.

61. Ibid.

62. Ibid.

63. Ibid., at 446.

64. Ibid., at 447.

65. Ibid.

66. Ibid., at 450.

67. Ibid.

68. See L. Fuller, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’, (1957) 71 Harvard Law Review 630, at 664.

69. Riggs v. Palmer, 115 NY 506, 22 NE 188 (1889). See R. Dworkin, Law's Empire (1986), at 15–20.

70. Jackson, ‘Literal Meaning’, supra note 55, at 453.

71. Ibid.

72. Jackson, Law, Fact, supra note 55.

73. Ibid., at 1.

74. Ibid., at 2.

75. Ibid., at 3.

76. Ibid.

77. It is important to note here that some endorsements of the syllogism should be understood not as an endorsement of the explanation of the process of legal reasoning as exclusively syllogistic, but as explanations of the structure of rules. However, this distinction is itself not often made by those who insist on the syllogistic structure of rules, suggesting that those writers still think that the process of the application of legal rules is essentially deductive, and best formalized in the syllogistic form. For example, see N. MacCormick, Institutions of Law (2007), at 24–8, although, of course, MacCormick's account of legal reasoning cannot be understood without recourse to his Legal Reasoning and Legal Theory (1978) and Rhetoric and the Rule of Law (2005). It is no surprise, however, to see that a recent volume has explored the tensions between the syllogism arguably best seen at work in the process of justification (appeals to universals), and its limitations, if not its absence, at the level of application (appeals to the particular): see Z. Bańkowski and J. MacLean, The Universal and the Particular in Legal Reasoning (2007).

78. Jackson, Law, Fact, supra note 55, at 89.

79. Ibid.

80. Ibid.

81. Ibid., at 90.

82. Ibid.

83. Ibid., at 91.

84. Ibid., at 92.

85. Miller v. Jackson [1977] 3 All ER 338. See also, W. Twining, ‘Stories and Arguments’, in M. Leskiewicz (ed.), Law, Memory and Literature (2004), 72–8. A slightly revised version of the above paper was recently published in W. Twining, Rethinking Evidence (2006), chapter 9.

86. Miller v. Jackson, supra note 85, at 340–1.

87. Jackson, Law, Fact, supra note 55, at 96.

88. Ibid., at 97.

89. Ibid. Indeed, and crudely put, it is this requirement of publicly recognized notions that some characterize as the limiting or disciplinary role of the process of justification on the process of application. See supra note 77. The problem is that, although informative, this disciplinary role does not exhaust – indeed, may misrepresent – the epistemological work involved in the process of legal reasoning.

90. Cited in Jackson, Law, Fact, supra note 55, at 100.

91. Ibid., at 99.

92. G. Fletcher, Rethinking Criminal Law (1978).

93. Jackson, Law, Fact, supra note 55, at 101.

94. Ibid., at 101.

95. Ibid., at 106.

96. Ibid., at 101.

97. Ibid., at 107.

98. Samuel, supra note 56.

99. Ibid., at 1.

100. Ibid., at 180.

101. Ibid., at 181.

102. Donoghue v. Stevenson [1932] AC 562.

103. Grant v. Australian Knitting Mills [1936] AC 85.

104. It is instructive, although outside the scope of this paper, to compare this analysis to that of Jackson's discussion of two contract cases in Law, Fact, supra note 55, at 101–6, where he talks of the comparison of narrative frameworks.

105. Samuel, supra note 56, at 190.

106. Ibid., at 197–8.

107. Ibid., at 200.

108. Ibid., at 207.

109. Ibid. As Samuel notes, this explanation follows the judgement of Lord Denning in Esso Petroleum v. Southport Corporation [1953] 3 WLR 773 (QBD).

110. Samuel, supra note 56, ch. 8.

111. Ibid., at 201.

112. See, for example, M. Van Hoecke (ed.), Epistemology and Methodology of Comparative Law (2004).

113. See Report, supra note 2, at 49–52.

114. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), [1986] ICJ Rep. (hereinafter Nicaragua).

115. Prosecutor v. Duško Tadić, Judgement of 15 July 1999, Case No. IT-94–1-A, A.Ch. (hereinafter Tadić).

116. See ibid. at 115, 116–45, and Conclusions, supra note 2, at 49.

117. Report, supra note 2, at 49.

118. Ibid., at 52.

119. Ibid.

120. Ibid., at 32, n. 52.

121. Ibid.

122. Ibid.

123. A more complete account would, at the very least, have to consider the work of Lon Fuller. See L. Fuller, The Morality of Law (1969), e.g. at 177; and L. Fuller, The Principles of Social Order (1981). See also W. Witteveen and W. van der Burg (eds.), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (1999). A further important and recent resource is the work of Adrian Vermeule: see A. Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (2007).

124. R. Summers, Form and Function in a Legal System: A General Study (2006).

125. J. Bell, Judiciaries within Europe (2006).

126. Summers, supra note 124, at 3.

127. Ibid., at 3–4.

128. Ibid., at 5.

129. Ibid., at 5.

130. Ibid., at 6.

131. Ibid.

132. Ibid., at 8.

133. Ibid., at 10.

134. Ibid., at 14, following Rudolf von Jhering.

135. Bell, supra note 125.

136. Ibid., at 2.

137. Ibid., at 6.

138. Ibid.

139. Ibid., at 6.

140. N. MacCormick and O. Weinberger, An Institutional Theory of Law (1986).

141. Bell, supra note 125, at 7.

142. Ibid.

143. Ibid., at 8.

144. Ibid., at 11.

145. Ibid.

146. I should note that I am not endorsing the epistemological picture, to the extent that one can witness it, in the work of Summers and Bell. The epistemological picture I endorse is that of Jackson and Samuel, which, as I have indicated, needs to be supplemented by an analysis of the specific institutional context of that epistemological picture – an analysis that is assisted by the work of Summers and Bell.

147. P. Selznick and P. Nonet, Law and Society in Transition: Toward Responsive Law (2001). Another potentially useful line of inquiry – that may share some of the conceptual affinities of responsive law – is that of the legal empowerment literature: see, e.g., S. Golub, ‘Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative’, (2003) 41 Rule of Law Series: Democracy and Rule of Law Project, Carnegie Endowment for International Peace, accessed by the author at www.carnegieendowment.org/files/wp41.pdf on 11 October 2007. My thanks to Francis Cheneval for this point.

148. P. Selznick, The Moral Commonwealth: Social Theory and the Promise of Community (1992).

149. R. Cotterrell, Law, Culture and Society (2006).

150. Selznick and Nonet, supra note 147, at 3.

151. Ibid., at 4.

152. Ibid., at 29.

153. Ibid.

154. Ibid., at 30.

155. Ibid., at 31.

156. Ibid., at 53.

157. Ibid. (emphasis in original).

158. Ibid.

159. Ibid., at 54.

160. Ibid.

161. Ibid.

162. Ibid.

163. Ibid., at 74.

164. Ibid., at 115.

165. Ibid., at 116.

166. See, for example, J. Morton, The International Law Commission of the United Nations (2000); I. Sinclair, The International Law Commission (1987); M. R. Anderson et al., The International Law Commission and the Future of International Law (1998); B. Ramcharan, The International Law Commission: Its Approach to the Codification and Progressive Development of International Law (1977); M. El Baradei, T. Franck, and R. Trachtenberg, The International Law Commission: The Need for a New Direction (1981); and A. Pellet, ‘Between Codification and Progressive Development of the Law: Some Reflections from the ILC’, (2004) 6 (1) International Law Forum 15.

167. Such work would take both Summers's and Fuller's work on institutional design (see supra notes 123 and 124) and consider whether the ILC is well placed, institutionally speaking, to fulfil its aims and objectives – keeping in mind, of course, the impact of the arguments of this paper on what those aims and objectives should be.

168. Sinclair, supra note 166, at 1–6.

169. Ramcharan, supra note 166, at 35.

170. Morton, supra note 166, has examined the effect of such composition on the ILC's deliberations: see ch. 5.

171. For examples of solutions that can result in the legal empowerment of poor and isolated individuals and communities, see the various documents available on the website of the Commission on Legal Empowerment of the Poor, http://legalempowerment.undp.org.

172. The need for the institutionalization of general international legal instruments was stressed by Georges Abi-Saab: see, e.g., G. Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’, (1999) 31 International Law and Politics 919.

173. See, e.g., A. Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation’, (2005) 74 Nordic Journal of International Law 297.

174. Koskenniemi and Leino, supra note 15, at 560.

175. Ibid., at 561.

176. Ibid., at 578.

177. See Cannizzaro, supra note 32.