Making International Law Without Agreeing What It Is

Abstract

This Article explores how international law works in spite of its fragmentation into radically different conceptions of law. Using the U.S. invasion of Iraq and Israel’s construction of a wall around Palestine, the Article shows how outcomes of a legal nature can be reached in spite of decision-makers’ different understandings of the nature of international law. The Article focuses uses two major conceptions of international law – positivism and policy-oriented jurisprudence – to explain and address fragmentation. It demonstrates that the gulf between the two conceptions of international law are not really meaningful conceptual disagreements. Instead, they are differences of normative commitments that are anterior to conceptualizing law. These preconcept commitments relate to the purpose of law, the ideal type of law, and the importance of semantics. The Article makes three interlocking proposals to address the fragmentation of international legal theory. First, decision-makers should clarify what they designate by the word “law” so that they may engage each other meaningfully. Second, certain international institutions, such as tribunals, may partially address pre-commitment conflicts because they have established hierarchies of conceptions of law. Third, outcomes will be reached through a process of claims and counterclaims about which conception should prevail. This Article concludes by testing its proposals against the U.S. invasion of Iraq and Israel’s construction of the wall.