Concept and Contract in the Future of International Law

Abstract

This is an article written for a symposium on Joel Trachtman’s book, The Future of International Law. I first deal with the contractarian features of Trachtman’s approach to understanding international law. Using the tools of new institutional economics and constitutional economics, Trachtman seeks to describe the features of an international legal system. This is positive political theory or at least relates substantially to the methods of positive political theory. I explore a different approach, one connecting to normative political theory. In its ambitious sense, my approach would see international law as a form of moral argument, but in its modest sense, which I favour, my approach offers a procedure for moral justification of international law distinct from a conceptual analysis to identify it as law. Second, I sketch out a way to morally evaluate fragmentation in international law. Trachtman’s functional approach looks at fragmentation as a practical problem of international law not reaching its full potential. I argue that fragmentation poses a serious moral problem for international law. Finally, I address the role of customary international law. Does it have a role in a contemporary international law focused principally on cooperation rather than coexistence? I agree with Trachtman that it does but that its role will be supplementary and diminished.