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Orakhelashvili, Alexander --- "The Relevance of Theory and History – The Essence and Origins of International Law" [2011] ELECD 570; in Orakhelashvili, Alexander (ed), "Research Handbook on the Theory and History of International Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Theory and History of International Law

Editor(s): Orakhelashvili, Alexander

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443549

Section: Chapter 1

Section Title: The Relevance of Theory and History – The Essence and Origins of International Law

Author(s): Orakhelashvili, Alexander

Number of pages: 20

Extract:

1 The relevance of theory and history ­ the essence
and origins of international law
Alexander Orakhelashvili


1.1 LAW AND SCHOLARSHIP

The international legal argument focuses on the analysis of legal rules and instruments,
and their application to facts. The ultimate aim of studying international legal theory is
to understand the principal systemic and structural categories of the international legal
system. Theory enables us to transcend the context of individual situations in which the
international legal argument develops and to indentify general patterns that characterise
this legal system in its entirety. Theory also provides a starting-point for studying interna-
tional law in an interdisciplinary perspective, analysing its interaction with ethics, moral-
ity, politics, culture and economy, which include factors that influence the choice of States
to accept or reject a particular rule, or decisions whether or not to comply with rules that
they have accepted. These considerations cannot, however, replace those that underlie
the validity of the rules in question and consequently the lawfulness of the relevant de-
cisions. Therefore, to remain a valid exercise in international legal argument, theory has
to tangibly relate to principal categories through which the international legal system
operates in terms of creation, implementation and modification of international legal
rules. Consequently, one of the principal tasks of theoretical analysis is to separate that
part of theory which accurately reflects the nature and content of international law from
that which merely constitutes a product of theoretical conjecture and of over-theorising.
Over-theorising has a ...