Bypassing the Authority of International Law: The Virtue of Modern Self-Referentiality
Forthcoming, G. HERNANDEZ and G. JOKUBAUSKAITE (eds), Constructing Authority in International Law (2018)
23 Pages Posted: 28 Sep 2017
Date Written: September 21, 2017
This chapter is certainly not the place to revisit the legacy of previous (re)turns to the question of authority of international law. More interesting for the sake of this book is the discussion of the very constraints from which international lawyers seek to escape when they venture into questions of authority. In other words, what is it precisely that drives the above mentioned international lawyers’ therapeutic turn to authority? It is argued in this chapter that inquiries into the authority of international rules, international rule-making processes, and international institutions are commonly meant to battle a specific construction that represses questions of authority, namely the self-referentiality of the main doctrines of international law. Focusing on the main doctrines of international law around which international legal arguments about the making, unmaking and functioning of international obligations are articulated (sources, interpretation, responsibility, personality, statehood, succession, jurisdiction, territory, etc), this chapter shows that the liberal structure inherited from the Enlightenment stifles the question of authority by virtue of a system of self-referentiality. According to the argument made here, the question of authority is more specifically bypassed by virtue of a self-referential construction according to which fundamental doctrines of international law invent their own origin and regulate their own functioning. It is because the foundational question of authority is ironed out by such liberal self-referentiality that international lawyers recurrently feel a cyclic need to embrace questions of authority and venture — albeit temporarily — outside their daily dichotomic world.
After sketching out the self-referentiality at the heart of international lawyers’ understanding of the formation and functioning of fundamental doctrines (1), this paper shows how the self-referentiality around which international lawyers’ understanding of the formation and functioning of fundamental doctrines is articulated produces the experience of a sense of constraint towards these fundamentals doctrines and allows a bypass of questions of authority (2). This paper then argues that the bypass of authority by virtue of self-referentiality constitutes a modern construction inherited from the Enlightenment (3). A concluding section discusses the possibility and adequacy of doing away with self-referentiality through questions of authority (4).
Keywords: international law, international legal theory, critique of international law
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