Laws VS theories

June 27, 2016

N.3.1 Laws vs. Theories

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International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international legal norms, that limit their freedom of action, in the absence of a world legislature. Other perspectives are policy oriented; they elaborate theoretical frameworks and instruments to criticize the existing rules and make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, others are interdisciplinary, while others have been developed expressly to analyse international law.

Natural law[edit]

Many early international legal theorists were concerned with axiomatic truths thought to be reposed in natural law. 16th century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.

Eclectic or Grotian approach[edit]

Hugo Grotius, a Dutch theologian, humanist and jurist played a key role in the development of modern international law. In his ("Three Books on the Law of War and Peace") of 1625, and drawing from the Bible and from the St. Augustine's just war theory, he argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice. Drawing, though, from domestic contract law, he argued that relations among polities ought to be governed by the law of peoples, the, established by the consent of the community of nations on the basis of the principle of, that is, on the basis of the observance of commitments. On his part, Christian von Wolff, contended the international community should be a world superstate (civitas maxima), having authority over the component member states. Emmerich de Vattel rejected this view and argued instead for the equality of states as articulated by 18th century natural law. In Le droit des gens, Vattel suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other.

During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia.

Legal positivism[edit]

The early positivist school emphasized the importance of custom and treaties as sources of international law. Early positivist scholar Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Another positivist scholar, Richard Zouche, published the first manual of international law in 1650.

Legal positivism became the dominant legal theory of 18th century and found its way into international legal philosophy. At the time, Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states. John Jacob Moser emphasized the importance of state practice in international law. Georg Friedrich von Martens, published the first systematic manual on positive international law, Precis du droit des gens moderne de l'Europe. During the 19th century, positivist legal theory became even more dominant due to nationalism and the Hegelian philosophy. International Commercial law became a branch of domestic law: private international law, separate from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.

Laws -vs- theories
Laws -vs- theories
Law vs Theory Unit 1A Video 3
Law vs Theory Unit 1A Video 3
Theory vs. Hypothesis vs. Law… Explained!
Theory vs. Hypothesis vs. Law… Explained!

Laws vs. theories...? | Yahoo Answers

Sure. Newton's law of gravity. A law is an observation of something that appears to be true - an equation to predict what will happen. Newton's laws of gravity worked very well at the time they were conceived, but not so much after we started observing the universe in detail. Einstein's theory of general relativity not only told us WHAT would happen but also WHY it happened, which a law can't do - which makes a theory superior to a law. And although Newton's laws still work very well on the scales we encounter on the Earth, we through them out when working on GPS systems or black holes.…

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