Thomas Schultz (2024)

Leiden Journal of International Law, Preprint. King’s Research Portal. Open access

Abstract. Usual accounts of international law-making and international legal change focus on formal secondary rules. Others include societal and institutional facts. But international law consists of ideas too. Arguably it exists only in minds. To be sure then, the conditions of ideational change codetermine when and how international law is made, unmade, and otherwise changes. This is what this article is after. It first draws a general sketch of international legal change (including its making and unmaking) to then zoom in on its ideational elements, with a narrower focus on market opportunities for ideas. These market opportunities, it is argued, are determined by: paradigm shifts, struggles between competing schools of thought, the formation of distinct epistemic subfields, the core individuals’ different capitals, and changes in beliefs.

Extract: “The second exogenous factor is captured by Luc Boltanski and Laurent Thévenot’s theory of justification. An idea may be received in a field, it was argued above, if it resolves a question which was asked of the thinking. That resolution must be accepted. The solution it offers to a conundrum, for instance, must be accepted. Most questions can be interpreted, at some juncture in the reasoning about them, as a dispute; a dispute between solutions. (Recall the point above about knowledge as judgment.) For the solution to a dispute to be accepted, it needs to be justified, Boltanski and Thévenot would in essence say.” (p. 16-17)

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