81 Pages Posted: 22 Jul 2010 Last revised: 29 Dec 2012
Date Written: April 1, 2010
This paper asks whether international law should be understood as a form of law at all. The analysis proceeds in three steps. First, the paper argues that no general or a priori answer to that question is desirable; one must engage with the jurisprudential questions in a contextualized way, asking at once how something comes to have the status of law and whether international law in particular instances of operation is such as to have that status. Second, the paper takes up the litigation connected to the Israeli/West Bank barrier, asking whether that case was or could have been addressed in such a way as to keep faith with minimal principles of legality. It wasn’t, the paper finds – but it could have been. Third, the paper specifies four values that are constitutive elements of the experience of law as law: that law have the capacity to give rise to events in the world (law’s efficacy); that it obligate as a matter of legitimate authority (law’s normativity); that it obligate as a matter of moral rationality (normativity again); and that it maintain a character distinct from the political or partisan (law’s objectivity). International law as seen in the Barrier case is then put to the test with respect to each of the four, and again the outcome is that nothing intrinsic to international law deprived it of the character of law, but that the courts and other institutions of the international system fell short of the law’s promise. The paper concludes by proposing a position it terms “skeptical internationalism” – a position that recognizes the ambivalence of international law in practical operation, affirming the legal status or potential of international law’s project and much of its doctrinal content, but reserving some skepticism for the ways in which that doctrinal content is interpreted and that project carried out.
Keywords: International Law, Jurisprudence, Philosophy of Law
Suggested Citation: Suggested Citation
Kleinfeld, Joshua, Skeptical Internationalism: A Study of Whether International Law is Law (April 1, 2010). 78 Fordham Law Review 2451 (2010); Northwestern Public Law Research Paper No. 12-40. Available at SSRN: https://ssrn.com/abstract=1646544