Ryan Mitchell (The Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted International Law as Project or System?: A History of the Will in Global Legal Order (Georgetown Journal of International Law, Vol. 51, No. 3, 2020, Forthcoming) on SSRN. Here is the abstract:
Classical authors on international law tended to understand it as an immanent system of norms, emerging either from natural reason or from customary state behavior. This view largely kept hold well into the Vienna System era of multilateral diplomacy, indeed becoming more conceptually clear even as the language of natural law grew increasingly marginalized. By the early 20th century, however, international law had turned into a domain for intentional legislative projects on a global scale. Ultimately, this new legislative function of international law was endowed to permanent organizations focused on norm-development in specialized areas.
With this transformation, international law took up a reverse trajectory to domestic constitutional law in the United States and other post-revolutionary states. There, what had begun as a political-legal project of popular self-government was largely converted by the late 19th century into a system of notionally immanent rules of social organization. International law, though, assumed the opposite course, with forms of legislation and, later, interpretation and adjudication making the transition from notionally “unwilled” to “willed,” intentional norms.
This Article traces the conceptual history of this shift in the self-understanding of legal actors. It also argues that the now-prevalent epistemic model of international law as a collective project may obscure questions, including those rooted in Third World critique, as to whose project it is in practice. Finally, it suggests that international law’s “problem of authorship” requires further explorations of project and system as a conceptual dichotomy in the field — one of equal, if not greater, importance as compared with the traditional trope of a shift from natural law to positivism.
Very interesting and recommended.
