Book contents
- Frontmatter
- Contents
- Notes on Contributors
- Preface
- 1 Introduction
- 2 Parochialism and the Legitimacy of International Law
- 3 Parochialism, Cosmopolitanism, and the Paradigms of International Law
- 4 Liberal Cosmopolitanism or Cosmopolitan Liberalism?
- 5 Are Human Rights Parochial?
- 6 The Parochial Foundations of Cosmopolitan Rights
- 7 Rights in Reverse
- 8 Parochial Restraints on Religious Liberty
- 9 Parochialism, Cosmopolitanism, and Justice
- Index
- References
3 - Parochialism, Cosmopolitanism, and the Paradigms of International Law
Published online by Cambridge University Press: 05 December 2011
- Frontmatter
- Contents
- Notes on Contributors
- Preface
- 1 Introduction
- 2 Parochialism and the Legitimacy of International Law
- 3 Parochialism, Cosmopolitanism, and the Paradigms of International Law
- 4 Liberal Cosmopolitanism or Cosmopolitan Liberalism?
- 5 Are Human Rights Parochial?
- 6 The Parochial Foundations of Cosmopolitan Rights
- 7 Rights in Reverse
- 8 Parochial Restraints on Religious Liberty
- 9 Parochialism, Cosmopolitanism, and Justice
- Index
- References
Summary
Paradigms of International Law
An international lawyer, when publishing, deciding or advising about the law, should be cognizant of the possible theoretical foundations of his or her position as well as of those of opposing views, not least because such awareness can help to develop legal solutions that all parties can live with. Theories about the nature and the finality of international law arise within the framework of their fundamental conceptual preconditions – their underlying “paradigms” or assumptions about the world. Understanding these paradigms should provide a better framework for reconciling the diverse and contrasting positions within international legal scholarship. Greater conceptual clarity about the underlying paradigms will also support intercultural dialogue on international law. International legal scholarship should not be limited to debate about the best interpretation of a given norm in a given situation. It should also extend to a broader discourse about the varied conceptions of legal order that have developed in different legal cultures throughout the world.
Parsimony is an essential element of a good scientific inquiry. This chapter situates the impressive variety of visions of international law that have been formulated during its long history – and therefore also the parochial and the cosmopolitan understanding of human rights – within the framework of its two traditionally competing paradigms: particularism and universalism. By paradigm, we mean the fundamental conceptual preconditions on the basis of which theories are developed. By theory, we understand a conceptual construction that explains phenomena and provides orientation. The paradigm of particularism forms the basis of all theories of international law that assert that true public order is only possible within the framework of a limited community. Hence, it is strictly related, albeit not identical, to the parochial approach to the human rights question as the theory that asserts that rights and values are deeply and inseparably rooted in the cultural soil of a specific tradition. If one accepts the particularistic claim, then the order that international law provides is substantially different from the order that can be accomplished within the single polity. In fact, from the particularistic point of view, international order would be better described as a containment of disorder. In contrast, the paradigm of universalism underlies all positions asserting that a truly public order on a global scale is possible at all. Once again, the closeness to the concept of cosmopolitanism is evident – and, once again, they are not precisely the same.
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- Publisher: Cambridge University PressPrint publication year: 2011