The pitfalls of ineffective conceptualization: the case of the distinction between procedure and substance

Mayer, B. ORCID: https://orcid.org/0000-0002-0669-7457 (2022) The pitfalls of ineffective conceptualization: the case of the distinction between procedure and substance. European Journal of International Law, 33 (4). pp. 1307-1329. ISSN 1464-3596 doi: 10.1093/ejil/chac073

Abstract/Summary

This review essay explores the distinction that judges and scholars have occasionally made between legal norms that they consider to be procedural and those considered to be substantive in nature. Approaching the issue from different angles, the three books under review all struggle to define procedure and substance as concepts informing a decontextualized distinction among international norms. Overall, they fail to show how this distinction is useful, either to understand what the law is or to account for its evolution. The essay argues that the concepts of ‘procedure’ and ‘substance’ hinder the clarity and, often, the soundness of the analysis presented in these books. At times, this ineffective conceptualization is an intellectual detour that hinders the development of more useful distinctions – for instance, between ‘principal’ and ‘accessory’ obligations, to determine when the breach of an obligation implies the breach of another obligation. Through this case study focused on recent publications on the distinction between procedure and substance, this essay reflects on the capacity of ineffective concepts to hinder the analysis of international law when their relevance and usefulness is too readily taken for granted.

Item Type	Article
URI	https://reading-clone.eprints-hosting.org/id/eprint/119378
Identification Number/DOI	10.1093/ejil/chac073
Refereed	Yes
Divisions	No Reading authors. Back catalogue items Arts, Humanities and Social Science > School of Law
Publisher	Oxford University Press
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