The Elusive Pursuit of a Transnational Legal Order
Chapter 9: The Future of an Illusion
Some illusions evaporate when their contradictions are exposed. Freud predicted religion would gradually whither as society realised the vacuous intellectual basis on which the phenomenon was premised, and the primitive psychological needs it fulfilled. Human society would become sufficiently rational that a collective appreciation of the false role of religion would gradually emerge, and people would stop practising it. Freud made this prediction in 1927.1 With the benefit of 85 years of hindsight, it is far from clear he was right; considered on a worldwide scale, religious belief is as strong as ever. So it is with international law. While its stated benefits and rationale are revealed as illusory, it stands little prospect of declining as citizens come to perceive its manifest fallacies. The global polity has too much invested in this illusion for it to recede. If this book aims to expose error leading to the correction of wrongs, it cannot hope to succeed, for historical forces are against that course. The only thing this work can hope to do instead is glumly to chart the inevitable. This prediction distinguishes the constructivist thesis from the realist. Were the realist’s account correct, one might imagine international law would disappear, since it is a costly and periodically inconvenient irrelevance to those who have created it. The point can be pushed further: the realist has trouble explaining why international law was developed in the first place. The constructivist, by contrast, can harness the power of ideas to explain why international law was...
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