The first underlying assumption is that international law is an inherently rational order based on developed community values, the elements of which must be revealed by the jurist.5 It is the result of a specific positivist doctrine adopted by international law in the late 19th century and which persists in our international legal discipline and practice. More precisely, it is the legacy of positivism of the will of the German state – positivism of the will of the state – framed by the German authors Georg Jellinek and Heinrich Triepel. Based on the assumption that international law is based on the consent that flows from the free will of individual nations, it arguably still shapes our understanding of international law. This article discusses some examples of theory and tests of law inspired by the social sciences. Completeness is impossible; The examples illustrate the most important trends. Georg Jellinek, the prominent figure of German public law at the end of the 19th century, ostensibly rejected all pre-Kantian approaches to natural law in the field of international law. Already at the beginning of the 19th century, German legal positivism in the form of the influential historical school of Savigny had based its concept of private law on the concept of the autonomy of the individual and the task of law to reconcile and delimit individual spheres of freedom. Savigny and Puchta accommodate German idealism (Kant/Schelling/Hegel) in this respect, but at the same time present law as an organic social media which, as such, expresses particular community values (Volksgeist), which allows them to reject the introduction of the French Civil Code in certain German territories as a foreign intervention in traditional German civil law. From their point of view, community values have been culturally conditioned and have developed over a long period of time. They can only be recognized by the jurist who, in order to exercise his monopoly on the reconstruction of law, must first fully explore the historical origins of law (“Back to the pandects!”). According to Puchta, this privileged knowledge subsequently allows the jurist to systematize the law through a formal and coherent system of conceptual jurisprudence.6 A third central aspect for the future of science is the question of dissemination. The discussion will focus on two topics: open access and reliability of digital sources in academic research and action research.
A second major distribution problem concerns the reliability of online sources. As noted earlier (Section 2), science plays an important role in providing legal evidence and supporting legal practice. The accessibility and reliability of resources are at the heart of the legal discipline. It has become common to use references to open web resources in case law and practice. Sometimes blogs are cited in court decisions. This increase in online sources could enrich the debate. But it also has troubling consequences. While further investigation into this issue is just beginning, recent research suggests that “more than 70% of URLs in the Harvard Law Review, Harvard Journal of Law and Technology, and Harvard Human Rights Journal, and 50% of URLs found in U.S. Supreme Court notices, do not provide the information originally cited.
Footnote 37 This may be just the tip of the iceberg. Traditional jurisprudence, sometimes referred to as science education, is an interpretive enterprise. Using legal documents such as laws and legal opinions, scientists try to find out what the law is, that is, whether a certain action X is allowed or regulated by the law, and in the latter case, what the penalty will be if the law is violated. Although teaching continues to function, it was attacked in the early 20th century for its preoccupation with “right in books” to the exclusion of “right in action.” A law may prohibit X but has no effect on social behavior because the law is ignored by prosecutors, judges, jurors, potential litigants and others, or because the people to whom the law is addressed can achieve their original goals without breaking the law. Criticism of teaching provokes a turn towards the social sciences; Legal scholars hoped that social science methods would enable them to understand how the law works, how it affects behavior in society, and how people and governments achieve their goals through law rather than other means. 30 For the analysis, see R. Alford, “Self-Publishing Legal Scholarship”, p. opiniojuris.org/2011/04/12/self-publishing-legal-scholarship. One of the biggest challenges for the future is to cope with the growing influx of information. One way to resolve this dilemma is to apply more vigilance, restraint and diligence in the production of fellowships, and to screen more when selecting publications.
This may require self-censorship on the part of authors and openness to journal control. Journals could then not only serve as forums for quality control, but also play a role in limiting the quantity of products published. This trend is already evident in the relationship with blogging, where a new division of labor is emerging. Journals appear to be moving away from reporting on certain types of discourse (e.g., current events, case commentaries) given the comparative advantages of blogging. So there is a tendency to restraint. This raises new questions about what should be published in a traditional form and how logical it is for journals to outsource debates to their own blog or other blogs (e.g. discussion of articles, book reviews). On these injustices of the Uruguay Round, see Weiler, “The WTO: Already the Promised Land?”, in Cassese (ed.), op. cit. cit., note 19, pp.
420-421; cf. auch Jouannet, “How to Depart from the Existing Dire Condition of Development”, in ebd., at. 413–415; Für eine eingehende Reflexion der oft unüberbrückbaren Konflikte zwischen internationalem Handelsrecht und menschenrechtlichen Verpflichtungen vgl. Bartels, “Trade and Human Rights”, in D. Bethlehem et al. (Hrsg.), The Oxford Handbook of International Trade Law (2009), S. 572 ff.