Politics or Rule of Law: Deconstruction and Legitimacy in International Law

Abstract

Recent scholarship,1 which has undertaken to 'deconstruct' 2 international legal argumentation, has suggested that the ideal of an international rule of law is based on contradictory premises and is therefore incapable of providing a useful approach to structuring international society. Therefore, given that 'social conflict must still be solved by political means'3 - a 'turn away from general principles and formal rules'4 is advocated. Such an attitude to international law, although developed on the basis of a new and intellectually fascinating analysis which reveals much of the internal contradiction in international law,5 is not entirely novel. It is reminiscent of and similar to the attitude taken by the school of political realism within the discipline of international relations which perceives the role of international law as instrumental and subordinated to politics. If, as is claimed, international law is not independent from international politics and, having no substance of its own, must 'rely on essentially contested political - principles', 6 then, of course, it would be meaningless to assert the need for establishing the primacy of international law over international politics.