Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL

Abstract

Despites Franck's claim that public international law (PIL) has moved into its 'post- ontological state', where controversy no longer surrounds its status as law, controversies over the ontology of PIL, and especially of customary international law (CIL) remain endemic. These controversies fuel the attack by Critical Legal Studies (CLS), and New Approaches to International Law (NAIL), scholars against a liberal-legal order all too easily portrayed as fundamentally indeterminate, a cover for its subjects' political interests. These critiques cannot be simply ignored, but neither can they be met easily, nor without cost. While CLS, and other critical discourses, seek to 'uncover' and 'explode' the ideologies and biases of law to demonstrate its inability to fulfil its promises, the present paper is intended to initiate the task of demanding that law, and especially CIL, live up to these very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided; or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematized; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met.