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  3. ASIL Studies in International Legal Theory

The purpose of the ASIL Studies in International Legal Theory is to clarify and improve the theoretical foundations of international law. Too often the progressive development and implementation of international law has foundered on confusion about first principles. This series raises the level of public and scholarly discussion about the structure and purposes of the world legal order and how best to achieve global justice through law. This series grows out of the International Legal Theory project of the American Society of International Law. The ASIL Studies in International Legal Theory deepen this conversation by publishing scholarly monographs and edited volumes of essays considering subjects in international legal theory.

  • General Editors: Mortimer N. S. Sellers, University of Baltimore, Michael D. Cooper, American Society of International Law
  • Editorial Boards: Samantha Besson, Université de Fribourg, Allen Buchanan, Duke University, David Kennedy, Harvard University, Jan Klabbers, University of Helsinki, David Luban, Georgetown University, Larry May, Vanderbilt University, Mary Ellen O'Connell, University of Notre Dame, Onuma Yasuaki, Meiji University, Helen Stacy, Stanford University, John Tasioulas, University College, London, Fernando Teson, Florida State University

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31 results in ASIL Studies in International Legal Theory

Page 1 of 2

States, Firms, and Their Legal Fictions
  • Attributing Identity and Responsibility to Artificial Entities
  • Edited by Melissa J. Durkee
  • Published online:
    29 February 2024
    Print publication:
    07 March 2024
  • This volume offers a new point of entry into questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution, the volume considers an array of questions about artificial entities that are usually divided into doctrinal siloes. These include questions about attribution of international legal responsibility to states and state-owned entities, transnational attribution of liabilities to firms, and attribution of identity rights to corporations. Durkee highlights the artificiality of doctrines that construct firms and states, and therefore their susceptibility to change.

Rethinking the Relationship between International, EU and National Law
  • Consent-Based Monism
  • Lando Kirchmair
  • Published online:
    29 February 2024
    Print publication:
    14 March 2024
  • The interdisciplinary embedding and novel conceptual approach offered in the book to address the relationship between legal orders offers a significant and original contribution to the literature. The first part of the book provides a critical account of dominant approaches to explain this relationship where theories of Kelsenian monism, dualism, legal pluralism and constitutionalism are criticized. In the second part, Kirchmair engages with an innovative idea by applying insights from social contract theory to the relationship between international, EU and Member State law and establishes his theoretical approach: Consent-Based Monism. The book focuses on the most important structural characteristics of the external relations law of the EU as well as the primacy of EU law in lieu of national constitutional identity which is demonstrated in part three.

Statehood as Political Community
  • International Law and the Emergence of New States
  • Alex Green
  • Published online:
    15 February 2024
    Print publication:
    22 February 2024
  • Alex Green argues that states arise under contemporary international law only when two abstract conditions are fulfilled. First, emerging states must constitute 'genuine political communities': collectives within which particular kinds of ethically valuable behaviour are possible. Second, such communities must emerge in a manner consistent with the ethical importance of individual political action. This uniquely 'Grotian' theory of state creation provides a clear legal framework comprising four factual 'antecedents' and five procedural principles, rendering the law of statehood both coherent and normatively attractive.

Consenting to International Law
  • Edited by Samantha Besson
  • Published online:
    23 November 2023
    Print publication:
    07 December 2023
  • The obligations stemming from international law are still predominantly considered, despite important normative and descriptive critiques, as being 'based' on (State) consent. To that extent, international law differs from domestic law where consent to the law has long been considered irrelevant to law-making, whether as a criterion of validity or as a ground of legitimacy. In addition to a renewed historical and philosophical interest in (State) consent to international law, including from a democratic theory perspective, the issue has also recently regained in importance in practice. Various specialists of international law and the philosophy of international law have been invited to explore the different questions this raises in what is the first edited volume on consent to international law in English language. The collection addresses three groups of issues: the notions and roles of consent in contemporary international law; its objects and types; and its subjects and institutions.

The Authority of International Criminal Law
  • A Controversial Concept
  • Clare Frances Moran
  • Published online:
    27 July 2023
    Print publication:
    07 September 2023
  • Despite a wealth of literature exploring the issues surrounding it, the legitimacy and authority of international criminal law remain in question. Adopting a perspective informed by legal and political philosophy, Clare Frances Moran considers the authority of international criminal law, why it can be conceived of as more than simply an exercise of power and how that power may be exercised legitimately. Advancing existing scholarship on the subject, Moran explores the roots of the authority of law at the domestic level and tests these ideas in an international context. She examines sovereignty, complementarity and postcolonial issues, and how each impact international criminal law. By developing a theory on the authority of international law, Moran considers how it might be possible to adjudicate more effectively at the international level.

The Death Penalty's Denial of Fundamental Human Rights
  • International Law, State Practice, and the Emerging Abolitionist Norm
  • John Bessler
  • Published online:
    01 December 2022
    Print publication:
    15 December 2022
  • The Death Penalty's Denial of Fundamental Human Rights details how capital punishment violates universal human rights-to life; to be free from torture and other forms of cruelty; to be treated in a non-arbitrary, non-discriminatory manner; and to dignity. In tracing the evolution of the world's understanding of torture, which now absolutely prohibits physical and psychological torture, the book argues that an immutable characteristic of capital punishment-already outlawed in many countries and American states-is that it makes use of death threats. Mock executions and other credible death threats, in fact, have long been treated as torturous acts. When crime victims are threatened with death and are helpless to prevent their deaths, for example, courts routinely find such threats inflict psychological torture. With simulated executions and non-lethal corporal punishments already prohibited as torturous acts, death sentences and real executions, the book contends, must be classified as torturous acts, too.

Theories of International Responsibility Law
  • Edited by Samantha Besson
  • Published online:
    01 September 2022
    Print publication:
    08 September 2022
  • There is no issue more central to a legal order than responsibility, and yet the dearth of contemporary theorizing on international responsibility law is worrying for the state of international law. The volume brings philosophers of the law of responsibility into dialogue with international responsibility law specialists. Its tripartite structure corresponds to the three main theoretical challenges in the contemporary practice of international responsibility law: the public and private nature of the international responsibility of public institutions; its collective and individual dimensions; and the place of fault therein. In each part, two international lawyers and two philosophers of responsibility law address the most pressing questions in the theory of international responsibility law. The volume closes with a comparative 'world tour' of the responsibility of public institutions in four different legal cultures and regions, identifying stepping-stones and stumbling blocks on the path towards a common law of international responsibility.

Human Dignity in International Law
  • Ginevra Le Moli
  • Published online:
    12 May 2022
    Print publication:
    25 November 2021
  • Over the past two centuries, the concept of human dignity has moved from the fringes to the centre of the international legal system. This book is the first detailed historical, theoretical and legal investigation of human dignity as a normative value, the intellectual sources that shaped its legal recognition, and the main legal instruments used to give it expression in international law. Ginevra Le Moli addresses the broad historical and philosophical developments relating to the legal expression of dignity and the doctrinal geography of human dignity in international law, with a focus on international humanitarian law, international human rights law and international criminal law. The book fills a major lacuna in the literature by providing a comprehensive account of dignity within international law that draws on an extensive documentary and archival basis and a vast body of decisions of international judicial and quasi-judicial bodies.

Tipping Points in International Law
  • Commitment and Critique
  • Edited by Jean d'Aspremont, John Haskell
  • Published online:
    23 October 2021
    Print publication:
    28 October 2021
  • Addressing some of the most perilous, controversial issues in international law and governance, this volume brings together legal scholars from diverse geographic, personal and scholarly perspectives. They reflect on the pervasive feeling of crisis in the world today and share their views on the possibilities and limits of the international legal architecture and its expert communities in shaping the world of tomorrow. What exactly is this feeling that the contemporary international legal architecture is at a tipping point? What do these possible risks expose about the fragility and limits of our current conceptual and institutional order? What commitments drive our hopes and anxieties? Authors explore these questions across a wide range of possible tipping points and offer readers a unique snapshot of the lived experience of what it means to be an expert engaged right now in international law and governance. Each chapter covers both theory and practice in analysing a current problem.

Ethical Leadership in International Organizations
  • Concepts, Narratives, Judgment, and Assessment
  • Edited by Guilherme Vasconcelos Vilaça, Maria Varaki
  • Published online:
    06 May 2021
    Print publication:
    20 May 2021
  • This book offers an innovative interdisciplinary approach that elucidates the importance of virtue ethics to help better understand the role of leadership in international organisations. The authors use a combination of theoretical and conceptual narratives as well as case studies to highlight both the advantages and weaknesses that the angle of virtue ethics offers. A particularly important step in times of uncertainty or crisis when the demand for leadership becomes more urgent yet more daunting. In this sense, this volume oscillates between critique and hope, since it provides a plausible, rather than a purely abstract, approach to the conceptualization and concretization of ethical leadership.

Whither the West?
  • International Law in Europe and the United States
  • Edited by Chiara Giorgetti, Guglielmo Verdirame
  • Published online:
    29 April 2021
    Print publication:
    29 April 2021
  • On a variety of international legal matters, relations between the US and European countries are evolving and even diverging. In an ever-changing world, understanding the reasons for this increasing dichotomy is fundamental and has a profound impact on our understanding of world dynamics and globalization and, ultimately, on our awareness of where the West is going. This interdisciplinary volume proposes new frameworks to understand the differences in approach to international law in the US and Europe. To explain the theoretical and historical underpinnings of the diverging views, the expert essays present new research and develop innovative conclusions. They assess and explore issues such as the idea of sovereignty, constitutional law, the use of force, treaty law and international adjudication. Leading authorities in different disciplines including law and political science, the contributors engage in a new dialogue and develop a new discourse on inter-Atlantic views.

International Law as Behavior
  • Edited by Harlan Grant Cohen, Timothy Meyer
  • Published online:
    15 March 2021
    Print publication:
    01 April 2021
  • This volume includes chapters from an exciting group of scholars at the cutting edge of their fields to present a multi-disciplinary look at how international law shapes behavior. Contributors present overviews of the progress established fields have made in analyzing questions of interest, as well as speculations on the questions or insights that emerging methods might raise. In some chapters, there is a focus on how a particular method might raise or help answer questions, while others focus on a particular international law topic by drawing from a variety of fields through a multi-method approach to highlight how these fields may come together in a single project. Still others use behavioral insights as a form of critique to highlight the blind spots and related mistakes in more traditional analyses of the law. Throughout this volume, authors present creative, insightful, challenges to traditional international law scholarship.

Space and Fates of International Law
  • Between Leibniz and Hobbes
  • Ekaterina Yahyaoui Krivenko
  • Published online:
    20 August 2020
    Print publication:
    17 September 2020
  • The book offers the first analysis of the influence exercised by the concept of space on the emergence and continuing operation of international law. By adopting a historical perspective and analysing work of two central early modern thinkers – Leibniz and Hobbes – it offers a significant addition to a limited range of resources on early modern history of international law. The book traces links between concepts of space, universality, human cognition, law, and international law in these two early modern thinkers in a comparative fashion. Through this analysis, the book demonstrates the dependency of the contemporary international law on the Hobbesian concept of space. Although some Leibnizian elements continue to operate, they are distorted. This continuing operation of Leibnizian elements is explained by the inability of international law, which is based on the Hobbesian concept of space, to ensure universality of its normative foundation.

Why Punish Perpetrators of Mass Atrocities?
  • Purposes of Punishment in International Criminal Law
  • Edited by Florian Jeßberger, Julia Geneuss
  • Published online:
    07 February 2020
    Print publication:
    20 February 2020
  • This edited volume provides, for the first time, a comprehensive account of theoretical approaches to international punishment. Its main objective is to contribute to the development of a consistent and robust theory of international criminal punishment. For this purpose, the authors - renowned scholars in the fields of criminal law, international criminal law, and philosophy of law, as well as practitioners working at different international criminal courts and tribunals - address the question of meaning and purpose of punishment in international law from various perspectives. The volume fleshes out the predominant dimensions of a theory of international punishment and highlights the differences between 'ordinary' (domestic) crime and international crimes and their respective enforcement. At the same time, throughout the volume a major focus is on the practical consequences of the different theoretical approaches, in particular for the activities of the International Criminal Court.

The Challenge of Inter-Legality
  • Edited by Jan Klabbers, Gianluigi Palombella
  • Published online:
    18 May 2019
    Print publication:
    30 May 2019
  • The sovereignty of states to enact and enforce laws within their jurisdictions has been recognized since the Treaty of Westphalia in 1648. There are now, however, accepted global legal norms that transcend national sovereignty and hold states accountable for not including their domestic legal regimes. This volume is the first book-length treatment to describe and explain how legal orders can be interwoven, and what to do about it. Coining the term 'inter-legality', this volume provides essays on the history, primary areas of inter-legality, the concept of jurisdiction, and normative developments prompted by inter-legality. Bringing together a wide range of contributors who stem from a variety of different academic backgrounds, this book aims to answer three questions: does inter-legality occur with some regularity? How does it affect traditional legal concepts such as 'jurisdiction' or 'legal order' or 'responsibility'? And what are the normative implications?

The Nature of International Law
  • Miodrag A. Jovanović
  • Published online:
    15 April 2019
    Print publication:
    25 April 2019
  • Jurisprudence has up until recently largely neglected international law as a subject of philosophizing. The Nature of International Law tries to offset against this deficiency by providing a comprehensive explanatory account of international law. It does so within an analytical tradition, albeit within the one which departs from the nowadays dominant method of the metaphysically-driven conceptual analysis. Instead, it adopts the prototype theory of concepts, which is directed towards determining typical features constitutive of the nature of international law. The book's central finding is that those features are: normativity, institutionalization, coercive guaranteeing, and justice-aptness. Since typical features are context sensitive, their specificities at the international level are further elucidated. The book, finally, challenges the often raised claim that fragmentation is international law's unique feature by demonstrating that international institutional actors, particularly adjudicative ones, largely perceive themselves as officials of a unified legal order.

Reexamining Customary International Law
  • Edited by Brian D. Lepard
  • Published online:
    26 January 2017
    Print publication:
    16 February 2017
  • Reexamining Customary International Law takes on the complex issues and controversies surrounding the history, theory, and practice of customary international law as it reexamines customary law's increasingly important role in world affairs. It incorporates the expertise of distinguished authors to probe many difficult issues that remain unresolved concerning the doctrine of customary law. At the same time, this book engages in a profound exploration of the practical role of customary international law in a variety of important fields, including humanitarian law, human rights law, and air and space law.

Human Rights in Emergencies
  • Edited by Evan J. Criddle
  • Published online:
    05 September 2016
    Print publication:
    21 July 2016
  • Public emergencies such as civil wars, natural disasters, and economic crises test the theoretical and practical commitments of international human rights law. During national crises, international law permits states to suspend many human rights protections in order to safeguard national security. States frequently overstep the limits of this authority, violating even peremptory human rights such as the prohibitions against torture and prolonged arbitrary detention. In this volume, leading scholars from law, philosophy and political science grapple with challenging questions concerning the character, scope, and salience of international human rights, and they explain how the law seeks to protect human rights during emergencies. The contributors also evaluate the law's successes and failures, and offer new proposals for strengthening respect for human rights.

Theoretical Boundaries of Armed Conflict and Human Rights
  • Edited by Jens David Ohlin
  • Published online:
    05 July 2016
    Print publication:
    04 August 2016
  • In the last two decades, human rights law has played an expanding role in the legal regulation of wartime conduct. In the process, human rights law and international humanitarian law have developed a complicated sibling relationship. For some, this relationship is viewed as a mutually reinforcing effort between like-minded regimes designed to civilize human behavior. For others, the relationship is a more complicated sibling rivalry. In this book, an unparalleled collection of legal theorists examine the relationship between these two bodies of law. Each chapter skilfully maps the possibilities of harmonization while, at the same time, raising cautionary flags about the limits of that project. The authors not only chart the existing state of the law, but also debate the normative implications of the continuing influence of human rights norms on current practices including torture, targeted killings, the conduct of non-international armed conflicts, and post-war state building.

The Theory of Self-Determination
  • Edited by Fernando R. Tesón
  • Published online:
    05 April 2016
    Print publication:
    06 April 2016
  • When can a group legitimately form its own state? Under international law, some groups can but others cannot. But the standard is unclear, and traditional legal analysis has failed to elucidate it. In The Theory of Self-Determination, leading scholars chart new territory in our theoretical conception of self-determination. Drawing from diverse scholarship in international law, philosophy, and political science, they attempt to move beyond the prevailing nationalist conceptions of group definition. At issue are such universal questions as: when does a group qualify as a 'people'? Does history matter? Or is it a question of ethnic status? Are these matters properly solved by popular vote? Anchored in modern analytical political philosophy but with implications for a wide range of scholarship, this volume will prove essential for scholars and practitioners of international law, global justice, and international relations.

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