Contemporary Theories and International Law-Making

Many contemporary theories approach international law-making with a shift in emphasis from the sources of law towards the communicative practices in which a plethora of actors use, claim and speak international law. Whereas earlier approaches would look at the sources as the singular moment of law-making, it is now generally understood that the broader process of speaking the language of international law contributes to its making. The contribution proceeds by sketching the move from sources to communicative practice against the backdrop of the 'linguistic turn', which proposes that law is made 'in action' (II.). It then dedicates sections to principal contemporary theories, starting off with the New Haven School as a pioneering approach to thinking of international law-making as a process of authoritative decision-making (III.). Its heritage is refined in the theory of transnational legal process (IV.). In contrast to these voices from New Haven, systems theory abstracts from the political strategies of concrete actors and is therefore in a good position to recognize law as an autonomous enterprise (V.). Practice theory then combines, first, sociological thought on the heels of Pierre Bourdieu and, second, philosophical insights of pragmatism (VI.). Governance theory then suggests paying more attention to regulatory networks as sites of law-making and to private actors whose normative output gains bite in the market place (VII.). The concluding outlook discusses the Global Administrative Law project and research centered on international public authority as responses to the normative challenges that come with the multiplication of forms and fora of international law-making (VIII.).