Law, Critique and the Believer\u27s Experience

I have come to think that, most of the time, radical critics of a given discursive practice were once believers in that practice’s necessities and realities. In particular, I am of the opinion that one comes to appreciate the power of a discourse only when one has genuinely and personally experienced the necessitarian pull as well as the realities such discourse creates. To put it in phenomenological terms, I think that radical scepticism is often the expression of some self-revulsion at one’s earlier beliefs. The phenomenological causality described here is thus not simply about the devastating rage that one can possibly vent after feeling tricked into believing in the necessities and realities of the hard-learnt sophisticated paradigms of a system of thought. What is at stake here is a much greater phenomenological claim. It pertains to the greater potential of those who have experienced the full potency of the necessities of realities created by discourses to develop a very acute sensibility for discourses’ hidden works and thought-governing structures

Law, Critique and the Believer\u27s Experience

I have come to think that, most of the time, radical critics of a given discursive practice were once believers in that practice’s necessities and realities. In particular, I am of the opinion that one comes to appreciate the power of a discourse only when one has genuinely and personally experienced the necessitarian pull as well as the realities such discourse creates. To put it in phenomenological terms, I think that radical scepticism is often the expression of some self-revulsion at one’s earlier beliefs. The phenomenological causality described here is thus not simply about the devastating rage that one can possibly vent after feeling tricked into believing in the necessities and realities of the hard-learnt sophisticated paradigms of a system of thought. What is at stake here is a much greater phenomenological claim. It pertains to the greater potential of those who have experienced the full potency of the necessities of realities created by discourses to develop a very acute sensibility for discourses’ hidden works and thought-governing structures

Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship

The international legal scholarship, in its quest for a paradigm able to apprehend international norm-generating processes qualifying as lawmaking, has been oscillating between static approaches and dynamic approaches. The former are based on the author of the norm (subjecthood) or its formal origin (pedigree) whilst the latter (e.g., participation) try to capture and explain the intricate and multidimensional fluxes between the authors of the norms and the norms themselves (impact or dynamic pedigree). International legal scholars have thus been resorting to various and diverging paradigms to make sense of international lawmaking. All of these approaches will be described in further detail below. This Article endeavors to shed some light on the reasons guiding scholars to choose one of these paradigms. After a brief outline of the mainstream empirical construction of current norm-generating processes in international law and a further detailed description of the main cognitive choices found in international legal scholarship, this Article elaborates on the driving forces behind each of the main paradigms permeating contemporary literature on international lawmaking. In doing so, this Article draws attention to the politics of empiricism and cognition with the aim of engaging in critical self-reflection on how international legal scholars and practitioners have been making sense of international lawmaking

The Demanding Idea of Consent to International Law

The concept of consenting to international law is no simple idea. It rests on sophisticated discursive moves. This article seeks to unpack five of the main discursive moves witnessed in literature and case-law discussing consent to international law. This article argues that these five specific discursive moves are performed, as is claimed here, by almost anyone analyzing the question of consent to international law, be such engagement on the more orthodox side or a critique from the argumentative side of the spectrum. These five discursive moves are (1) the reproduction of a very modernist understanding of authority, (2) the constitution of the very subject that is consenting, (3) the anonymization of the author of consent, (4) the reversal of the temporality of the legal discourse on consent, (5) and the adoption of very binary patterns of thought. This article shows that discursive moves made by international lawyers regarding the idea of consent bear heavily upon the type of political legitimacy, geography, responsibility, and hermeneutics that international law serves

The Complementary Faces of Legitimacy In International Law: The Legitimacy of Origin and the Legitimacy of Exercise

Global governance rests on the exercise of public authority by a myriad of actors. In the international order, the more powers and influence these actors acquire, the more their legitimacy proves to be controversial. It is submitted here that the legitimacy of international, regional, and domestic actors that partake in global governance—those considered here as global actors—must be appraised from a two-fold standpoint. Their legitimacy can first be gauged through the lens of the origin of their powers. This is what this Article calls the legitimacy of origin. The origin of the power may often prove an insufficient indicator of an actor’s legitimacy. For this reason, legitimacy is also evaluated in light of the way in which the actor exercises its power. This is what this Article calls the legitimacy of exercise. This Article is based on the assumption that failing to recognize this dual character of legitimacy of actors involved in global and regional governance can undermine any endeavor to grasp the contemporary complexity of the latter. The legitimacy of global actors is primarily a question about how, when exercising public authority, this actor is perceived as having a “right to rule.” In that sense, there is no doubt that the question of legitimacy of global actors exercising public authority is, to a large extent, a moral question. Yet, this Article does not seek to examine the moral criteria through which the legitimacy of actors exercising public authority on the international plane ought to be established. This has artfully been endeavored elsewhere. This Article is—more modestly—concerned with the distinction between different faces of legitimacy that should arguably be taken into account when making a (moral) evaluation, as well as how the importance of these various dimensions of legitimacy have been fluctuating in practice. It thus attempts to unearth the multiple faces of legitimacy and the evolutions thereof, irrespective of the moral criteria which could eventually be used in each case. Another important preliminary caveat must be formulated. It cannot be denied that the legitimacy of an authority classically impinges on the extent to which the rules it prescribes are deemed legitimate. The legitimacy of such rules will not only bear upon the authority and the degree of compliance with the rule, but it also impacts the legitimacy of the legal system as a whole, which in turns affects its viability.7 This Article, however,while not ignoring that the legitimacy of the actors affects the legitimacy of the rules and of the system, is not concerned with either of these two questions and solely concentrates on the legitimacy of international actors. Yet, it will be shown that the legitimacy of exercise, because it requires an examination of how public authority is exercised, cannot always be severed from the question of legitimacy of rules. After sketching some of the contemporary features of legitimacy in international law in Part I, this Article focuses on the extent to which the so-called principle of democratic legitimacy has impinged on how legitimacy of global actors is conceived today in Part II. In Part III, this Article then turns to assessing how, against that backdrop, legitimacy of global actors is evaluated in contemporary practice. Although not ignoring that the question of legitimacy may arise in connection with other actors, this Article focuses on two public global actors in particular, namely governments and international organizations,8 with a view to demonstrating that the appraisal of the legitimacy of governments differs from the legitimacy of international organizations. This Article argues that while the legitimacy of origin has constituted the classical measure to evaluate the legitimacy of governments, recent practice has shifted the paradigm toward the legitimacy of exercise. This Article also submits that the exact opposite paradigm shift is simultaneously taking place in the context of the legitimacy of international organizations, for the legitimacy of international organizations is incrementally reviewed from the vantage point of the legitimacy of origin, despite having classically been based on the legitimacy of exercise

2023--The Legitimacy and Legality of War: From Philosophical Foundations to Emerging Problems

While Russia\u27s invasion of Ukraine represents a serious challenge to the international legal order, its challenge to the use of force regime is particularly acute. This symposium brings together a wide range of scholars to assess the applicability and efficacy of the international legal framework regulating the use of force. Topics to be examined include just-war theory, the prohibition on the threat or use of force, exceptions to the use-of-force prohibition, the treatment of the non-use-of-force principle in judicial proceedings, and the role of non-State actors in the use of force regime.https://scholarship.law.slu.edu/lj_cicl_symposia/1001/thumbnail.jp

2023--The Legitimacy and Legality of War: From Philosophical Foundations to Emerging Problems

While Russia\u27s invasion of Ukraine represents a serious challenge to the international legal order, its challenge to the use of force regime is particularly acute. This symposium brings together a wide range of scholars to assess the applicability and efficacy of the international legal framework regulating the use of force. Topics to be examined include just-war theory, the prohibition on the threat or use of force, exceptions to the use-of-force prohibition, the treatment of the non-use-of-force principle in judicial proceedings, and the role of non-State actors in the use of force regime.https://scholarship.law.slu.edu/lj_cicl_symposia/1001/thumbnail.jp