Prost, M (2017) Hierarchy and the Sources of International Law: A Critical Perspective. Houston Journal of International Law, 39 (2). pp. 285-330. ISSN 0194-1879

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The doctrine of sources is constructed around a set of shared intuitions and accepted wisdoms. One of them is that there exists no hierarchy in and among the recognized sources of international law. Conventional accounts of international law-making depict an eclectic and uncoordinated system in which States - as sovereign equals - create rules for themselves through various processes which can be engaged simultaneously, in a kind of decentralized and pluralistic arrangement where no source ranks higher than the other. This article argues that the "no-hierarchy" thesis is deceptive and that the law of sources is replete with multiple forms of hierarchy. The article examines two types of source hierarchies. The first type concerns what may be termed "informal hierarchies of pre-eminence". These stem from the fact that legal actors (states, adjudicators, scholars) routinely express preferences for specific sources and form normative judgments in which some sources are deemed superior (good, effective, democratic) and others inferior (bad, inefficient, illegitimate). The second type concerns the material hierarchies of influence that typify law-making in the international community, in which some actors, voices and experiences are privileged (states, great powers, white men, transnational capital etc.) and others are marginalized (non-state groups, small powers, brown women, labor etc.). The article examines how, despite a broad commitment to legislative equality, international law-making has been historically - and continues to be - characteristically oligarchic and patriarchal, accommodating and institutionalizing inequalities of status and influence among law-making agents. In the conclusion, I argue for a robust rejection of the "no-hierarchy" thesis as analytically inconsistent (i.e. at odds with the "real world" of sources) and normatively problematic, as it conceals and neutralizes law-making hierarchies, rendering them immune to critical scrutiny and challenge.

Item Type: Article
Subjects: K Law > K Law (General)
Divisions: Faculty of Humanities and Social Sciences > School of Law
Depositing User: Symplectic
Date Deposited: 13 Sep 2016 15:20
Last Modified: 14 Aug 2017 11:20

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