Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship

The international legal scholarship, in its quest for a paradigm able to apprehend international norm-generating processes qualifying as lawmaking, has been oscillating between static approaches and dynamic approaches. The former are based on the author of the norm (subjecthood) or its formal origin (pedigree) whilst the latter (e.g., participation) try to capture and explain the intricate and multidimensional fluxes between the authors of the norms and the norms themselves (impact or dynamic pedigree). International legal scholars have thus been resorting to various and diverging paradigms to make sense of international lawmaking. All of these approaches will be described in further detail below. This Article endeavors to shed some light on the reasons guiding scholars to choose one of these paradigms. After a brief outline of the mainstream empirical construction of current norm-generating processes in international law and a further detailed description of the main cognitive choices found in international legal scholarship, this Article elaborates on the driving forces behind each of the main paradigms permeating contemporary literature on international lawmaking. In doing so, this Article draws attention to the politics of empiricism and cognition with the aim of engaging in critical self-reflection on how international legal scholars and practitioners have been making sense of international lawmaking