Sources in the Anti-Formalist Tradition

Abstract

Abstract This chapter traces the legal and political principles of two important schools of the twentieth century—the New Haven School and the School of Carl Schmitt—and situates them in their geographical and historical contexts. It analyses commonalities and especially differences in their political and legal projects. The chapter further argues that reaction against a naïve positivism reigning during the past century in international law essentially determined developments in both schools’ understanding of the concept of sources of law. In the discussion of Schmitt, the chapter focuses on sources of domestic law and seeks to understand the relationship between the sources of domestic and international law as Schmitt saw it through the notion of ‘concrete order thinking’. Finally, this chapter also addresses a trait shared by New Haven and Schmitt when connecting sources of law with politics, international organizations, and institutions.