Hakimi: Thinking Constructively about International Law

Monica Hakimi (Columbia Univ. - Law) has posted Thinking Constructively about International Law (Yale Journal of International Law, forthcoming). Here's the abstract:

The international order that has defined the post-World War II period is being radically transformed, presenting a once-in-a-generation opportunity to reconstitute its basic foundations. The pressing questions for international lawyers are about what roles their enterprise can and should play going forward. I argue in this Article that most lack the analytic framework they need even to begin tackling these questions. Worse, most seem mired in an old theory about law that corrupts how they approach their enterprise. My goals in the Article are to expose the prevalence of this bad theory and to present the grounds for discarding it, so that we can think more clearly about the situation that we now confront and what might realistically come next.

The bad theory is sovereigntist in orientation. It establishes three conditions for law—one for law’s existence, a second for law’s efficacy, and a third for law’s justifiability—that only a fantastical sovereign, with both absolute authority in law and monopolistic control over the levers of coercion, could satisfy. Though few international lawyers subscribe to this sovereigntist theory in its classical and most extreme variant, the theory’s core commitments remain deeply entrenched in the field. Those who approach international law from otherwise distinct analytic traditions—what I will call “formalist,” “constructivist,” “realist,” “rational,” and “critical”—widely converge on, or at least have not managed to escape, this timeworn theory.

After exposing the extent to which the sovereigntist theory permeates the field, I explain what it gets wrong and how to move past it. In short, international law cannot, does not, and should not work in the way that the sovereigntist theory insists that law must. International law works differently from that. And though it, like all law, has inherent limitations, we cannot even begin to analyze it as a social phenomenon, nor identify its problems and possibilities, nor navigate the coming future, with a theory that insists that it must work as it cannot.