International Law as Project Or System?

INTERNATIONAL LAW AS PROJECT OR SYSTEM?

RYAN MARTI

´NEZ MITCHELL*

ABSTRACT

Classical authors on international law tended to understand it as an imma-

nent system of norms, emerging from natural reason, self-interest, and/or cus-

tomary 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 marginal. By the early

twentieth 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’s forms of legislation and,

later, also of interpretation and adjudication transitioned from assuming

“unwilled” to “willed,” intentional norms. This Article traces the concep-

tual 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 col-

lective project necessarily raises questions, including those rooted in Third

World critique, as to whose project it is in practice. Finally, it suggests that

further attention to international law’s “problem of authorship” can aid in

understanding the way that legal discourses—such as those concerned with

norms of freedom of navigation, trade, or international human rights—

produce specif‌ic forms of knowledge and political possibilities.

I. INTRODUCTION: TWO LEGAL EPISTEMES . . . . . . . . . . . . . . . . . . . 624

II. THE PROJECT / SYSTEM DISTINCTION . . . . . . . . . . . . . . . . . . . . . 628

A. Law as System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628

B. Law as Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635

III. THE CONCEPTUAL TRANSFORMATION OF THE LAW OF NATIONS . . . 641

A. International Norms as Limiting Principles . . . . . . . . . . . . 641

B. Constituting an International Legal Community. . . . . . . . . 647

C. An Agent Emerges?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655

D. The Project Ethos Is “Elevated” to the International Plane. . . 659

* Assistant Professor, Chinese University of Hong Kong, Faculty of Law. J.D., Harvard 2012.

Ph.D., Yale 2017. The author thanks Paul Kahn, Steven Ratner, Curtis Bradley, and Laurence

Helfer for comments on drafts of this paper, and thanks the participants and organizers of the

Michigan Law School 2020 Junior Scholars Conference. V

C 2020, Ryan Martı´nez Mitchell.

623

IV. PROJECT AND SYSTEM IN THE IMAGINATION OF GLOBAL

INSTITUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666

A. Extending Europe’s Collective Will. . . . . . . . . . . . . . . . . . . 666

B. The Emerging Project of International Adjudication. . . . . . . 672

C. The New Jurisprudence of Purpose . . . . . . . . . . . . . . . . . . . 677

V. CONCLUSION: THE PROBLEM OF AUTHORSHIP . . . . . . . . . . . . . . . 686

I. INTRODUCTION: TWO LEGAL EPISTEMES

Legal orders can be imagined as either projects or systems, and the

choice between these epistemes has profound implications for how

their norms are subsequently interpreted.

1

The legal philosopher Paul

Kahn has recently suggested this dichotomy can be of use in studying

“the relationship of knowledge to practice” in the historical develop-

ment of U.S. law, particularly as regards the changing hermeneutics of

constitutional jurisprudence.

2

The distinction between the concepts

centers principally upon their relationship with the notion of the will—

the question as to whether the law emerges as the product of a planned

intent (a project) or rather as the byproduct of non-intentional social

processes (a system).

3

This Article proposes that the same two lenses can also be applied to

the conceptual history of international law.

4

Similar to a domestic con-

stitution, the body of international legal norms requires its interpreters

1. See generally PAUL KAHN, THE ORIGINS OF ORDER: PROJECT AND SYSTEM IN THE AMERICAN

LEGAL IMAGINATION (2019). On the notion of epistemes, see MICHEL FOUCAULT, THE ORDER OF

THINGS xxiv (Routledge 2005) (1966) (suggesting that epistemes are “conf‌igurations within the

space of knowledge which have given rise to the diverse forms of empirical science”).

2. KAHN, supra note 1, at 5.

3. Id.

4. This Article is the f‌irst to apply the concepts of “project” and “system,” in Kahn’s specif‌ic

sense as a dichotomy of epistemic frameworks, to the emergence of the modern international

legal order. However, there have been various scholarly discussions that implicitly or explicitly

rely upon one or the other of these frameworks—indeed, this Article assumes that those studying

legal orders invariably must grapple with questions regarding the will, often leading to the

adoption of one of the perspectives here described. Concerns over the “fragmentation” of

international law, for example, are often focused upon the sense that there is no subject capable

of exercising an authorial intent to provide international law as a whole with the coherency and

self-consistency associated with successful legislative projects. See Gerhard Hafner, Pros and Cons

Ensuing from Fragmentation of International Law, 25 MICH. J. INT’L L. 849 (2003); Eyal Benvenisti

and George W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of

International Law, 60 STAN. L. REV. 595 (2007); Anthony E. Cassimatis, International Humanitarian

Law, International Human Rights Law, and Fragmentation of International Law, 56 INT’L & COMP. L. Q.

3, 623 (2007); for a critical evaluation of “fragmentation” discourse, see Martti Koskenniemi and

Pa

¨ivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. OF INT’L L. 3, 553

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

624 [Vol. 51

to make epistemic choices that involve not only discerning the “sources

of international law,”

5

but that also invoke questions as to the role (or

absence) of intentional authorship in the way that those sources pro-

duce rules and mutually interact.

In relation to constitutional law, the project framework presumes

“the idea of a constitution as the product of a popular will informed by

political science.”

6

Any project must embody the will of a consciously

acting subject, which can be individual or collective. A revolution giving

rise to a newly-designed government and legal system cannot occur

without a revolutionary subject that is its agent.

7

The United States

(U.S.) Constitution is frequently described as legitimate not by virtue of

the inherent validity of its norms, but rather as the result of a shared

notion that it embodies the “will of the People.”

8

Understood in this

framework, the Constitution appears as a legal project: “an intentional

act [ ] to realize an idea or set of ideas.”

9

(2002). “Fragmentation” becomes a problem inasmuch as it represents a loss of the ability for a

legal order to express its assumed underlying objective[s]. On the other hand, various scholars

specif‌ically celebrate the non-unitary character of international law, seeing this as a feature of its

successful functioning as an organic social system, e.g. for the mediation of conf‌licts and the

pluralistic expression of various actors’ different normative agendas. See, e.g., Benedict Kingsbury,

Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s

Positive International Law, 13 EUR. J. OF INT’L L. 2, 401 (2002); Monica Hakimi, The Work of

International Law, 58 HARV. INT’L L.J. 1 (2017). For a major critical reaction to postwar centralized

international lawmaking hearkening back to international law as a “system” of order among

inherently conf‌lict-prone state and peoples, see CARL SCHMITT, THE NOMOS OF THE EARTH IN THE

INTERNATIONAL LAW OF THE JUS PUBLICUM EUROPAEUM (G.L. Ulmen trans., Telos Press, 2006). For

an account of “progress” as a framework of international legal imagination closely related to that

of the project, see generally THOMAS SKOUTERIS, THE NOTION OF PROGRESS IN INTERNATIONAL LAW

DISCOURSE (2009).

5. The focus on the study of international law as a question of “sources” is a def‌ining feature of

positivism, which can be summarized as the doctrine that the validity of a legal norm is based not

on its evaluation by extrinsic standards of morality or justice but rather its enactment according to

a recognized standard for the generation of legal norms. See, e.g., Samantha Besson & Jean

d’Aspremont, The Sources of International Law, in THE OXFORD HANDBOOK ON THE SOURCES OF

INTERNATIONAL LAW 1, 1–39 (Jean d’Aspremont & Samantha Besson eds., 2017); JEAN

D’ASPREMONT, FORMALISM AND THE SOURCES OF INTERNATIONAL LAW: A THEORY OF THE

ASCERTAINMENT OF LEGAL RULES (2011).

6. KAHN, supra note 1, at 5.

7. Id. at 16.

8. Id.; see also PAUL W. KAHN, THE REIGN OF LAW: MARBURY V. MADISON AND THE CONSTRUCTION

OF AMERICA (1997); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM

AND JUDICIAL REVIEW (2004); Frank I. Michelman, Constitutional Authorship by the People, 74 NOTRE

DAME L. REV. 1605 (1998); John AG. Griff‌ith, The Political Constitution, 42 THE MODERN L. REV. 1

(1979).

9. KAHN, supra note 1, at 16.

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