What If? Counterfactual (Hi)Stories of International Law

Abstract

The article proposes to think counterfactually about international law: How could it have been otherwise? Writing counterfactual (hi)stories of international law, the article submits, has the potential of, first, exposing the contingency of outcomes that is glossed over in the rush towards making sense of what actually happened. Second, it supports the understanding of what actually happened in a context-sensitive fashion that complements grand theories’ emphasis on systemic variables. Third, counterfactual thinking forms part of comparative assessments and exposes normative blind spots. Counterfactual thinking may thus contribute to the freedom from necessity, from grand theory, and from reality. In short, by asking how it could be otherwise, counterfactual thinking questions the present shape of international law. Inspired by practices of counterfactual thinking in history, social science and critical theory, the article turns to thinking counterfactually about international law. It draws the contours of what counterfactual thinking is about, discusses its merits as well as drawbacks, offers guidance on how to do it. It provides different concrete illustrations along the way and focuses on just one plausible counterfactual history by way of example: What if the International Trade Organization had been established around 1949?

Keywords: International legal thinking, counterfactual thinking, contingency, determination, critical theory, hindsight bias, International Trade Organization (ITO)

JEL Classification: K33