TY - JOUR

T1 - Explaining Power and Authority in International Courts

AU - Olsen, Henrik Palmer

AU - Capps, Patrick

PY - 2021

Y1 - 2021

N2 - It has recently been suggested that the study of international legal life should take an ‘empirical turn’:a turn which has often focused on how patterns of authority emerge and operate in relation tointernational courts. In what follows it is argued that this empiricism fails to distinguish (for thepurposes of sociological inquiry) authority from various other concepts such as power or consensusin the study of international law and courts. This is because this method focuses only on overt signs,such as observable action or statements of intention. However, one solution to this problem, whichis to collapse socially significant and distinct categories such as authority and consensus into a broadcategory of ‘power’, requires the adoption of an implausible and inconsistent view of agency inexplanations of legal authority. By contrast, and in line with the long-standing interpretivist traditionin sociological and legal method, we claim that in order to interpret the observable signs of complianceto international legal rules and principles as indicative of authority, consensus, or power, it is necessaryto interpolate an account of the reasons which give rise the compliance we observe. This, in turn,explains why international legal doctrine, as an axiological structure, gives rise to the behaviour of itsaddressees, such as state officials

AB - It has recently been suggested that the study of international legal life should take an ‘empirical turn’:a turn which has often focused on how patterns of authority emerge and operate in relation tointernational courts. In what follows it is argued that this empiricism fails to distinguish (for thepurposes of sociological inquiry) authority from various other concepts such as power or consensusin the study of international law and courts. This is because this method focuses only on overt signs,such as observable action or statements of intention. However, one solution to this problem, whichis to collapse socially significant and distinct categories such as authority and consensus into a broadcategory of ‘power’, requires the adoption of an implausible and inconsistent view of agency inexplanations of legal authority. By contrast, and in line with the long-standing interpretivist traditionin sociological and legal method, we claim that in order to interpret the observable signs of complianceto international legal rules and principles as indicative of authority, consensus, or power, it is necessaryto interpolate an account of the reasons which give rise the compliance we observe. This, in turn,explains why international legal doctrine, as an axiological structure, gives rise to the behaviour of itsaddressees, such as state officials

U2 - 10.1017/S0922156521000303

DO - 10.1017/S0922156521000303

M3 - Journal article

VL - 34

SP - 533

EP - 546

JO - Leiden Journal of International Law

JF - Leiden Journal of International Law

SN - 0922-1565

IS - 3

ER -