Critical International Law: Recent Trends in the Theory of International Law
Full text available: PDF format
Abstract
`Critical' international legal studies constitute a so-called post-modern approach to international law. This is to assert that the discipline is governed by a particular, historically conditioned discourse which is, in fact, quite simply, the translation onto the international domain of some basic tenets of liberal political theory. It opposes itself to positivist international law, as representative of an actual consensus among states. The crucial question is simply whether a positive system of universal international law actually exists, or whether particular states and their representative legal scholars merely appeal to such positivist discourse so as to impose a particularist language upon others as of if were a universally accepted legal discourse. So post-modernism is concerned to unearth difference, heterogeneity and conflict as reality in place of fictional representations of universality and consensus.
A crucial `battleground' will be the so-called sources of international law. So, for instance, a contested question will be whether general customary law does actually refer to an obligatory consensus among states, a consensus which they regard as productive of effectively constraining legal rules standing above states. The critical approach to international law questions such an understanding of the discipline, i.e. as consisting of an empirical search for actual state consent to effectively constraining norms. Instead the language of international law has to be understood historically as no more than a subsystem of the discourse of liberal political theory. The contradictions and incompleteness of international legal discourse can, therefore, be understood quite easily - post-modern theory does not aim to be obfuscating - if one refers to the dilemmas which are well known to the debate which surrounds liberal theory. Above all, liberal political theory is plagued by the dilemma how autonomous and independent actors can be brought together in support of or under the rubric of some notion of the common good, when authority for a definition of that good must remain with the same autonomous and independent actors.
A major part of this study will be `deconstructionist' in the sense that it will explain what are believed to be path-breaking studies in the breaking down of consistent and persistent attempts by positivist international lawyers to avoid the dilemmas at the heart of their subject, through highly elaborate, apparently technical, recourse to the language of (state) consent as a representational language. There is a contradiction within international legal practice which consists in a virtually unending process of reification of the discourse of state consent into actually existing, constraining rules independent of states, which have only to be identified, for problems of authority in relations between states to be resolved. In practice this leads to sterile and acrimonious attempts to `demonstrate' that `the other side' has `consented' to a viewpoint which one prefers, an elusive exercise, given that the starting point will usually be a conflict of interest which supposes that neither party is `consenting' to what `the other' wishes.
The critical approach, far from decrying the very existence of international law, allows a way out of this impasse precisely because it recognises the character of liberalism as a tradition. It does this by means of two devices. It recognises the absence of a central international legal order as an impartial point to which state actors can refer, i.e. the simple meaning to be given to the phrase, `the disappearance of the referent'. At the same time it favours a mature anarchy in international relations, the recognition of states as independent centres of legal culture and significance, which have to be understood, in relation to one another, as opposing to one another very fragile, because inevitably partial, understandings of order and community.
The role of the international lawyer in such an acutely relativised, se
The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems
