On the (non-)existence of international law [re-up]

[Updated and moved back to the top 13th August]

I’ve just finished the paper I’ve been working on for the last couple of months (or years, depending how you look at it). I think it’s pretty good, but it’s a bit of a departure, even from the last few things I’ve written (which are broadly about how best to approach political extremism under the rule of law). When you consider that I’m employed as a lecturer in Criminology, this paper is – well, ‘departure’ is scarcely the word. Any (constructive) suggestions as to what to do with it will be welcomed!

It’s also ratheralmost certainly far too long (23,000 words), so some surgery may be required. (Ironically, the sprawling beast I’m looking at now was originally planned as the first part of a two-part paper; in part two I was going to (and indeed eventually will) explore the implications of assuming that international law does exist, a question that I promise you is more theoretically fruitful than it sounds.)

I do think it’s pretty good, though. For info, it divides up as follows:

Introduction: 500 words
Austin and ‘positive morality’: 1000
Kelsen and ‘primitive law’: 1800
Hart and secondary rules: 2700
Realism and neo-realism in IR (Morgenthau and Waltz): 3600
Koskenniemi and the force of the dichotomy: 6200 (!)
Miéville and Pashukanis: 3600
Conclusion: 2700

Here’s the abstract:

New maps of denial: On the (non-)existence of international law

International law is unlike other areas of law in the regularity and confidence with which its existence is called into question. International law’s effective existence has been denied by scholars from multiple traditions, with different presuppositions about the existence conditions for a legal system; their convergence in challenging the existence of international law suggests that entrenched ideological rivals may share certain unexamined foundational assumptions.

This paper will review some of the main ways in which contemporary scholarship challenges the existence of international law, assessing the strength of the arguments advanced to support these challenges, the underlying assumptions of those arguments and the implications which follow from them. Prompted by Miéville (2004a), the paper will consider critiques of international law advanced by Austin, Kelsen, Hart, the Realist school of International Relations, Koskenniemi and Miéville himself. Respectively, these have denied (or have been cited as denying) that international law qualifies as law; that it is law in the same sense as municipal law; that it constitutes a legal system; that it exerts a determinant influence on nation states; that it can offer any coherent and non-contradictory guidance; and that it can be a force for emancipation and progress in the world.

In conclusion, the paper will identify the assumptions required in order to consider that international law does in fact exist – and exists as a coherent legal system with the potential to deliver emancipatory reforms – and the implications of doing so.

and the very end of the conclusion:

As a social achievement, international law is both imperfect and precarious; it is both law “in the making” (Lesser 2014: n.p.) and law which risks being unmade. International law’s relative lack of institutional underpinnings highlights the grounding of law in normative practice:

law ‘governs its own creation’, but not in the sense that the creation of law is made possible by higher legal rules: rather, the idea of law governs its own realization. Law, we may say, is the process of its own becoming.
(Simmonds 2007: 11),

International law must needs wear its normativity on its sleeve, in other words – and it is this, perhaps, which explains why it has proved so enduring a target of sceptical attacks, whether informed by legal positivism, foreign policy realism, deconstructionism or Marxism. The discourses and practices sustaining and reproducing international law are thoroughgoingly normative discourses and practices, impossible to fully understand or even demarcate without some adoption of a Hartian ‘internal point of view’. It is understandable that critics unwilling to buy into what they see as liberal illusions, and alert to the role played by international law in sustaining and ratifying an unjust global status quo, should decline to adopt that point of view – but the effect is to overstate the strength and coherence of the ideological underpinnings of the status quo, and to discard a potentially powerful set of normative resources for change.

and, to give you some idea what area I’m working in, the references:

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One Comment

  1. Posted 13 October 2019 at 16:45 | Permalink | Reply

    In academia construction of a premise seems to take precedance over reality.

    International law exists (like any law)to the extent of the enforcement mechanism. A current example is the constitutional crises in the US. Constitutional law regulates the relationship between branches and works well when people keep to the gentleman’s agreement to allow oversight. The current problem is when the enforcement mechanism, the DOJ, is part of the malfeasance as is currently true so that there is no one to enforce the law.

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