A Study Of International Economic Law Under The Approach Of Pragmatic Jurisprudence

This dissertation has been tailored focusing on the attributes of InternationalEconomic Law (IEL, hereinafter), that is to say, it shall be a study mainly concerningthe basic theories of IEL. The purpose of the study, however, is not designed to do anygrand construction or deconstruction. It shall only concentrated on the history and thestatus quo of IEL from the perspective of pragmatic jurisprudence. In other words, thestudy is purported to observe whether, why and on what degree the legal pragmatisminfluences the development of IEL.Except Introduction and Conclusion, the study has been divided into five chapters, i.e.,Ch.1, Legal Pragmatism and Its Harmonic and Conflicting Aspects in InternationalLaw. Ch.2, Reasons of IEL under the Approach of Pragmatic Jurisprudence. Ch.3,Review of IEL from Theoretic Aspects: A Comparative and Critical Study BetweenJohn Jackson and E. U. Petersmann. Ch.4, Review of IEL from Practical Aspects: IELunder the Approach of Pragmatism. Ch.5, IEL under the Approach of PragmatismTowards 21st Century and China's Attitude.As the basis of the study, Chapter One shall be a description of traits of legalpragmatism by sketching several leading scholars' thinking about pragmaticjurisprudence in history, i.e., Oliver Wendell Holmes Jr., Benjamin Nathan Cardozo,Roscoe Pound, Richard Rorty, and Richard A. Posner. These traits per se shall be thestarting points for further analyses. Before moving on, nevertheless, a short butconcise introduction of pragmatic philosophy must be given, not only because it is thefoundation of pragmatic jurisprudence, but because the negative bias about it has longbeen occupied the controlling position in Chinese context as well. Based on thiscognition, the whole Chapter shall be designed into four parts. In Part One, PragmaticPhilosophy and Misreading Around, a brief norm review of pragmatic philosophyshall be provided, the long been existed derogatory sense shall be cleared by newlyresearch materials as well. Part Two, Pragmatic Jurisprudence, shall be an analysis oftraits of pragmatic Jurisprudence. Part Three, The Harmony and Conflict of LegalPragmatism at the International Law Level, shall be a link of following chapters,which draws a both harmonic and conflicting picture of legal pragmatism in thecontemporary international background where nations existed as basic units. Part Fourshall be a summary of the Chapter.Chapter Two is designed to reveal reasons of the pragmatic attribute of IEL, whichshall be analyzed from three aspects, i.e., philosophic development, systemtransformation and legal traditional changing. A short summary is attached at the endof the Chapter.Chapter Three shall be an observation from theoretic perspective about the pragmaticattribute of IEL. A comparative and critical study shall be exemplified between JohnJackson and E.U. Petersmann, two of the most outstanding scholars in thecontemporary IEL research field, whose thinking shall typically present essentials ofIEL theories. Furthermore, John Jackson is an American scholar, E.U. Petersmanncomes from Europe, their thoughts therefore not only at some degree bear ContinentalLaw and Anglo-Saxon Law traditions separately, but lay out these traditions in IELresearch field as well. The Chapter shall be divided into five parts. Part One,Introduction, shall be a brief description of these two famous scholars. Part Two, AComparative Study of Their IEL Constitutional Approaches, shall be the core part ofthis chapter since both Jackson and Petersmann are pioneers on theories of the IELconstitutionalization albeit their thoughts are strikingly unlike. Compared to this Part,Part three, Legal Pragmatism in Methodology of Research and Construction of IELDiscipline, shall be a rather extrinsic comparison. Then, Part Four, Legal Skeptic v.Firm Ordo-liberalist, shall be a comparison of their far different legal beliefs. PartFive shall be a summary of the Chapter.Corresponding to Chapter Three, Chapter Four shall be an observation from practicalperspective about the pragmatic attribute of IEL. Including Part One, Introduction:IEL without Foundation, and Part Four, Summary, The Chapter totally has four parts.Part Two, Legal Pragmatism in the Formation of IEL, and Part Three, LegalPragmatism in the Compliance and Application of IEL, shall illustrate in detail hownations, guided by legal pragmatism, regard interests as the principle of IEL andtransform idealistic 'justice' and 'equality' into realistic balance and compromise.WTO law and its DSU mechanism shall be the main observing field since which hasbeen recognized as the most transparent and enforceable part in the current imperfectIEL as a whole.All above analyses shall serve the reasoning in Chapter Five in which the goal of thisdissertation, exploring the growing direction of IEL under the pragmatic approach inthe 21st century, shall be argued. Then, a suggestion of China's practical attitude shallbe depicted. This chapter has four parts. Part One, Globalization, is purported toprovide a background analysis of the 21st century. Part Two, IEL in the Era ofGlobalization, shall demonstrate changes of IEL happened or will happen in the 21stcentury. Part Three, China's Attitude: a Kind of Unavoidable Legal Pragmatism,suggests that China should guide by mature pragmatic approach towards IEL in the21st century since both super-ordination and sub-ordination shall still co-exist in theworld, cooperation and contest, control and anti-control shall also be main themes ininternational law field.Generally speaking, positive method shall be the main methodology of thisdissertation. Moreover, Methods of philosophic reasoning, logical deduction, criticalmethod, historic analysis, comparative study and case and regulation demonstrationshall also be used.