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:

Austin, J. (1832), The province of jurisprudence determined. London: John Murray.
Balbus, I. D. (1977), “Commodity form and legal form: An essay on the relative autonomy of the law”. Law Society Review 11(3).
Benjamin, W. (1921), “Zur Kritik der Gewalt”. In Benjamin, W. (1965), “Zur Kritik der Gewalt” und andere Aufsätze. Frankfurt am Main: Suhrkamp.
Binns, P. (1980), “Law and Marxism”. Capital and Class 10.
Brierly, J. (1955), The law of nations (5th edition). Oxford: OUP.
Brierly, J. (1958), ‘The basis of obligation in international law’ and other papers. Oxford: OUP.
Derrida, J. (1990), “Force de loi: Le fondement mystique de l’autorité”. Cardozo Law Review 11(5-6).
Finnemore, M. and Sikkink, K. (1998), “International Norm Dynamics and Political Change”. International Organization 52(4).
Fischer Williams, J. (1929), Chapters on current international law and the League of Nations. London: Longmans.
Fischer Williams, J. (1939), Aspects of modern international law. Oxford: OUP.
FitzMaurice, G. (1956), “The foundations of the authority of international law and the problem of enforcement”. Modern Law Review 19(1).
Forsyth, M. (1992), “The tradition of international law”. In Nardin, T. and Mapel, D. (1992), Traditions of International Ethics. Cambridge: CUP.
Garfinkel, H. (1967), Studies in ethnomethodology. Englewood Cliffs, NJ: Prentice-Hall.
Gihl, T. (1957), “The legal character and sources of international law”. Scandinavian Studies in Law 1.
Hart, H. L. A. (1957), “Dias and Hughes on jurisprudence”. Journal of the Society of Public Teachers of Law 4.
Hart, H. L. A. (1961), The concept of law. Oxford: OUP.
Hart, H. L. A. (1983), Essays in jurisprudence and philosophy. Oxford: OUP.
Henderson, E. (2013), “Hidden in plain sight: Racism in international relations theory”. Cambridge Review of International Affairs 26(1).
Imbusch, P. (2003), “The concept of violence”. In Heitmeyer, W. and Hagan, J. (eds.) (2003), International Handbook of Violence Research. Dordrecht: Kluwer.
Jenks, C. (1964), “Fischer Williams – The practitioner as reformer”. British Year Book of International Law 40.
Jones, J. (1935), “The pure theory of international law”. British Year Book of International Law 16.
Jütersonke, O. (2010), Morgenthau, Law and Realism. Cambridge: CUP.
Kelman, M. (1987), A Guide to Critical Legal Studies. Cambridge, MA: Harvard University Press.
Kelsen, H. (tr. Wedberg, A.) (1945), General Theory of Law and State. Cambridge, MA: Harvard University Press.
Kelsen, H. (tr. Knight, M.) (1967), Pure Theory of Law. Berkeley, CA: University of California Press.
Kennan, G. (1951), American Diplomacy, 1900-1950. Chicago: University of Chicago Press.
Kennedy, D. (1978), “The Structure of Blackstone’s Commentaries”. Buffalo Law Review 28(2).
Kennedy, D. (2001), “A semiotics of critique”. Cardozo Law Review 22(3-4).
Knox, R. (2009), “Marxism, international law, and political Strategy”. Leiden Journal of International Law 22.
Koskenniemi, M. (2006), From Apology to Utopia (second edition). Cambridge: CUP
Lesser, A. (2014), “H.L.A. Hart on international law”. Kritikos 11.
Macnair, M. (2006), “Law and state as holes in Marxist theory”. Critique 34(3).
Marx, K. (1976 [1867]), Capital, volume 1. London: Penguin.
McDougal, M. (1952), “Law and power”. American Journal of International Law 46(1).
Miéville, C. (2004a), Between equal rights: A Marxist theory of international law. Leiden: Brill
Miéville, C. (2004b), “The commodity-form theory of international law: an introduction”. Lieden Journal of International Law 17.
Morgenthau, H. (1940), “Positivism, Functionalism, and International Law”. American Journal of International Law 34(2).
Morgenthau, H. (1948), Politics Among Nations. New York: Alfred A. Knopf.
Morgenthau, H. (1951), In Defence of the National Interest. New York: Alfred A. Knopf.
Morgenthau, H. (1954), Politics Among Nations, second edition. New York: Alfred A. Knopf.
Morgenthau, H. (1973), Politics Among Nations, fifth edition. New York: Alfred A. Knopf.
Murphy, G. (2010), Shadowing the White Man’s Burden. New York: New York University Press
Nadel, S. (1957), The theory of social structure. Glencoe, IL: Free Press.
Pashukanis, E. (2002 [1924]), The General Theory of Law and Marxism. Brunswick, NJ: Transaction.
Payandeh, M. (2011), “The Concept of International Law in the Jurisprudence of H.L.A. Hart”. The European Journal of International Law 21(4).
Perelman, C. and Olbrechts-Tyteca, L. (1969) (tr. Wilkinson, J. and Weaver, P.), The new rhetoric: A treatise on argumentation, Notre Dame: University of Notre Dame Press
Powell, S. (1967), “The legal nihilism of Pashukanis”. University of Florida Law Review 20(1).
Quinn, A. (2013), “Kenneth Waltz, Adam Smith and the Limits of Science: Hard choices for neoclassical realism”. International Politics 50(2).
Radcliffe-Brown, A. (1952), Structure and Function in Primitive Society. New York, NY: Free Press
Sampson, A. (2002), “Tropical Anarchy: Waltz, Wendt, and the Way We Imagine International Politics”. Alternatives 27.
Scobbie, I. (1990), “Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism”. British Yearbook of International Law 61(1).
Scobbie, I. (2010), “Principle or Pragmatics? The Relationship between Human Rights Law and the Law of Armed Conflict”, Journal of Conflict & Security Law 14(3).
Siltala, R. (2011), Law, truth, and reason: A treatise on legal argumentation. Law and Philosophy Library 97. Dordrecht: Springer.
Simmonds, N. (2007), Law as a moral idea. Oxford: OUP.
Slaughter Burley, A.-M. (1993), “International law and International Relations theory: A dual agenda”. American Journal of International Law 87(2).
Tucker, R. (1952), “Review: Professor Morgenthau’s theory of political ‘realism’”. American Political Science Review 46(1).
Waldron, J. (2009), “Who needs rules of recognition?”, New York University School of Law Public Law and Legal Theory Research Paper 09-21. New York, NY: New York University School of Law.
Waldron, J. (2013), “International law: ‘A relatively small and unimportant’ part of jurisprudence?”. In Duarte D’Almeida, L., Edwards, J. and Dolcetti, A. (eds.) (2013), Reading H.L.A. Hart’s The Concept of Law. Oxford: Hart.
Waltz, K. (1979), Theory of International Politics. New York, NY: McGraw-Hill.
Waltz, K. (1990), “Realist thought and neorealist theory”. Journal of International Affairs 44(1).
Warrington, R. (1980), “Standing Pashukanis on his head”. Capital and Class 12.
Wendt, A. (1995), “Constructing international politics”. International Security 20(1).
Wetlaufer, G. (1997), “Gunmen, straw men, and indeterminacy: H.L.A. Hart, John Austin, and the concept of law”. Iowa Law Review 82(5).
Wittgenstein, L. (1953), Philosophical investigations. Oxford: Basil Blackwell.

Advertisements

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.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: