PP853
Analítico de Periódico
CARTY, Anthony
Scandinavian realism and phenomenological approaches to statehood and general custom in international law / Anthony Carty
European journal of international law, Oxford, v.14n.4(Septembre2003), p.817-841
FILOSOFIA DO DIREITO, HISTÓRIA DO DIREITO, REALISMO
The concepts of general customary law and the state are crucial to the structure of the international legal order. The suppose the state is a unified entity, with a single will, which can, in co-ordination with other states, create explicit (treaty) or tacti (customary) international law. Ross adopts a social-psychological causal approach to explain how these supposedly hard positive law concepts are in fact decadent remnants of idealist, natural law provenance. This means lawyers use the language of state will and general custom to express their belirf that international legal rules exist. however, this process actually reflects unconsciously, socially induced compulsions. The language of law is one of rationalization. It attaches legal labels to social practices that are of no normative value or significance. However, Ross appears to blink in the face of own nohilism and recommends that judges, in their decision-making, can best articulate the way any society considers itself to become bound by law...