Critique, Culture and Commitment: The Dangerous and Counterproductive Paths of International Legal Discourse

Nova Law Review, Vol. 29, p. 211, 2005

60 Pages Posted: 12 Sep 2004 Last revised: 8 Nov 2009

Abstract

This paper has as its goal to identify, catalogue and explore the biases and blindspots, prejudices and unintended consequences which reside in and around present-day international law, in this its most recent phase of its history. Philip Allott has described the new international law as a social phenomenon, as a self-constituting phenomenon, a process whereby the international society is coming to know itself and is actualized. For Allott, international law is a social-psychological phenomenon, and law and society exist out of (as well as in) the minds of its constituents. My basic thesis is that because of the inherent subjectivity of any system designed to regulate and mediate relations between people - and peoples - it is of the utmost importance to subject the new international law to a searching scrutiny, to ask hard questions about its tendencies to emphasize certain interests, exalt particular groups, order society in predetermined or preconceived ways. The outcomes and distributional consequences of the various decisions, models, and discourses - ways of framing, conceptualizing, and talking about international law - must be examined. The aim of the paper is to uncover the insidious procedural and structural biases of international law, which are often overlooked, those which exist just beneath the surface as well as those which are firmly embedded deep within the subterranean consciousness of the discipline's conception of itself. The Paper proceeds first with a discussion of three major procedural or structural discourses of contemporary international law: those revolving around sovereignty, jurisdiction and state responsibility. Within the sovereignty discussion, I distinguish between three categories of bias: (1) biases emanating from the concepts which remain as remnants of 19th century and pre-19th century discourses; (2) biases surrounding the major metaphors of international law, specifically examined are those illuminated by feminism's critique of the state and state power; and (3) biases surrounding the major substantive areas of international law, focusing specifically on the environment and the Kyoto Protocol. Lastly, Part III contains a discussion of fairness discourse, an attempt to define and reign in the concept of bias, and to thereby deal with and resolve the paradox of universalism and the conundrum this paradox has created for international law and society.

Keywords: International law, bias, blindspot, identify, catalogue, Allott, David Kennedy

JEL Classification: B30

Suggested Citation

Hoffman, Geoffrey A., Critique, Culture and Commitment: The Dangerous and Counterproductive Paths of International Legal Discourse. Nova Law Review, Vol. 29, p. 211, 2005, Available at SSRN: https://ssrn.com/abstract=588028

Geoffrey A. Hoffman (Contact Author)

University of Houston Law Center ( email )

100 Law Center
Houston, TX 77204
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
52
Abstract Views
1,113
Rank
687,410
PlumX Metrics