Subverting Eurocentric Epistemology: The Value of Nonsense When Designing Counterfactuals
Forthcoming in Ingo Venzke and Kevin Heller (eds), Contingency in International Law (Oxford University Press 2020)
18 Pages Posted: 4 Nov 2019
Date Written: October 24, 2019
TWAIL scholarship is stricken by a paradox. At the outset, a critique is levelled against the role of European imperialism and colonialism in shaping the architecture of modern international law and of Eurocentrism in the operation of international law. However insightful, scholarship that ends at the point of no return has nowhere to go. TWAIL scholars thus introduce a second move, advocating for a reformative agenda that aims to set us on the path toward a truly universal international law. These same scholars offer compelling visions of fairness and justice, each of which aims to rescue international law from itself. In this chapter, I reflect on whether contingency scholarship can contribute to TWAIL’s aspirations for a better international law.
Echoing Susan Marks, I argue that TWAIL is caught in a narrative of false contingency: the belief that ‘injustice is arbitrary or accidental’. Each aspiration for international legal renewal relies on fabricated circumstances, positing scenarios that ignore the ‘systemic logics at work.’ Justice and fairness are present in international law. What is disputed is the contingency of the definitions and outcomes they produce, both of which cohere with international law as devised making the injustice TWAIL bemoans inevitable rather than pathological.
I conclude by proposing that contingency scholarship possesses value for TWAIL scholars to the extent that it compels them to treat history as neither determinate nor random. Fairness and justice have no meaning until we agree on what we want but what we want is itself informed by what we know. For TWAIL scholars, contingency provides a device that allows us to be more penetrating with our critiques — identifying what is truly awful — and with our aspirations — locating where potential lies.
Keywords: TWAIL, critical international legal theory, contingency, counterfactuals
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