This Article crystallizes and then critiques a prominent view about the role of international law in the global order. The view — what I call the “cooperation thesis” — is that international law serves to help global actors cooperate, specifically by: (1) curbing their disputes, and (2) promoting their shared goals. The cooperation thesis often appears as a positive account of international law; it purports to explain or describe what international law does. But it also has normative force; international law is widely depicted as dysfunctional when it does not satisfy the thesis. In particular, heated or intractable conflict is thought to betray the limits of international law — to show that, on some issues, international law is not serving its functions.
That view of international law is conceptually flawed. It incorrectly assumes that conflict is an impediment to international law or a problem for international law to mitigate. As scholars from other disciplines have shown, however, conflict is symbiotic with the very functions that the thesis prizes. Even as international law enables global actors to curb their disputes and work toward their shared aims, it also enables them to do the opposite: to hone in on their differences and disagree — at times fiercely and without resolution. It does so because the two kinds of interactions are interdependent, and the legal mechanisms for both are the same. To put the point more starkly, conflict does not necessarily reveal deficiencies in international law because enabling it is inherent in the project of international law.
Constitutional Law | International Law | Law
The Work of International Law,
Harv. Int'l L. J.
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