The Time of Contingency in International Law

The normative affirmation that international law could have been otherwise upholds material commitments to an actually-existing distribution of goods, which international law supports. To make this clear, this chapter begins by sketching a larger context by which the contingency of international law can be made legible. The larger context here pertains to a Western humanist tradition, following which international law relies on contingency to sustain a humanist fantasy of a temporal economic actor. The humanist fantasy includes an emancipatory pretension to political pre-eminence that is inscribed in its temporality, but at odds with its material, economic underpinnings. The pretension to pre-eminence corresponds historically with an ascendant normative regime that has succeeded as an economic programme but continuously failed as an emancipatory one. The frustrated emancipatory project is a complementary counterpart to the successful economic one. The former persists not despite but on the basis of failure and contradiction: in the face of historical failure, international law always already contains within itself the normative solution; its past failures are proof of future successes, a source of assurance and self-affirmation. When political ideals fail, specific temporal logics entangled with international law enable an affirmation of the subject who maintains those failed ideals, for no other reason than persisting as the same idealistic subject in the same material system that produced the failure. As a result, international legal practice redirects energy for social objectives into subjective self-affirmation, leaving other forces at work for political purposes.