Deceptive Dyad: Falseness and Fantasy in International Law

• Author: Jason Beckett
• Pages: 277-335

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

tHE dECEPtivE dyad

fAlseness And fAntAsy in internAtionAl lAw

Jason Beckett

Many of those who write about Public International Law (PIL), portray it as

a relatively autonomous and tolerably just legal system; emphasizing an un-

derstanding of law as a technical practice. A determinable system of rules and

principles, deployed by trained professionals to evaluate and constrain the global

machinations of power and politics. is is the image of law as a tool, an author-

itative structure through which global justice can be pursued. ese assumptions

entrench a comforting, but false, progress narrative; and obscure the limitations

of actually pursuing progressive change through international law.In this paper,

I expand on Susan Marks’ suggestion that PIL is structured by a falsity which

has two distinct but interrelated forms: false necessity and false contingency.

ese become visible when the practice of international legal argumentation is

examined in the context of PIL’s radical indeterminacy. To explain this, I will

rst describe the two forms of falseness, and how they interact to create what I

call the Deceptive Dyad. I will then outline the inexorable, radical, indetermi-

nacy of PIL; three strategies through which international lawyers endeavour to

domesticate or suppress this; and why these are unlikely to succeed. PIL’s pur-

ported demands, however meticulously craed, do not eect change in the real

world. is is made visible, and intelligible, through the lens of the deceptive

dyad. Emancipatory change at the global level is possible. However, it faces sys-

temic obstructions in our contemporary world order of “planned misery”. ese

obstructions, and the implausibility of PIL overcoming them, reveal a global

normative architecture bifurcated between two competing systems: the one we

think of as PIL; and another I will introduce and sketch as the Global Legal Or-

der (GLO). To sharpen this distinction, I adopt Weber’s theory of law as the cen-

tralized deployment of violence, through a specically “legal rationality”. Com-

bining this with false contingency, I develop an analytic schema which clearly

distinguishes the two normative orders. e GLO, possesses coercive authority,

and deploys it in a legal-rational manner. Characterised by its capacity to en-

force its will and the widespread obedience this commands, it imposes an ideo-

logically coherent set of policies in a consistent manner; producing identiable

VIII Indonesian Journal of International & Comparative Law 277-335 (July 2021)

278

Beckett

legal norms. PIL is radically indeterminate, but aspires to ethical perfection. It

mimics the rituals of law, but lacks the capacity to enforce its demands. PIL has

authority, but only the GLO is authoritative.

e two systems co-exist and overlap, each functions to dene and correct

“delinquents”, but they do so in incompatible ways. For the GLO the delinquent

is the government that refuses its neoliberal economic prescriptions. For PIL

delinquency is dened in ethical terms: those oppressing or subjugating others,

violating their rights. I argue that these two visions of delinquency are incom-

patible, but they are not unrelated. As I will illustrate, the GLO’s coercively im-

posed policy prescriptions impoverish states and immiserate their populations.

is provokes protest and opposition, which necessitates oppressive governance,

culminating in what PIL understands as “human rights abuses”. Consequently,

the suppression of delinquency by the GLO produces delinquency in PIL.

However, these two systems, apparently contradictory at every level, ac-

tually work in tandem. By analysing human rights abuses and other “illegalities”

a-structurally, PIL obscures their links to the obligations imposed by the GLO.

is unintentional diversion from the GLO perpetuates the very atrocities PIL

claims to condemn. In return, the GLO provides material support, and the illu-

sion of importance, to PIL. Together, they regulate and disguise our neocolonial

present: producing and reporting human rights abuses.

279

Falseness and Fantasy in International Law

Beckett

She lied not from a desire to deceive but in order to correct reality

and mitigate the absurdity that struck her world and mine.

Kamel Daoud, e Meursault Investigation

We have created a lifestyle that makes injustice permanent and

inescapable.

Sven Lindqvist, e Myth of Wu Tao

INTRODUCTION: HOW FALSENESS

STRUCTURES INTERNATIONAL LAW

Public International Law (PIL), in its professional, academic, and activ-

ist manifestations, forms a deceptive discourse, a managed fantasy of a

relatively autonomous, tolerably just, and determinable, legal system.

is framework depicts law as a practice of technical expertise; and

“legal scholarship as a discipline which disentangles complex patterns

into individual actors and acts and provides a frame for enabling and

constraining power in concrete situations.”1 is is an image of PIL as

a system of professionally determinable rules and principles, a mech-

anism through which state conduct may be impartially evaluated, and

global justice pursued. ese assumptions condition both the pos-

tures of legal resistance and the limits of pursuing progressive change

through PIL; they foster a comforting, even inspiring, narrative. But

that narrative is false, and potentially paralyzing.

PIL lacks “enforcement”, this renders it radically indeterminate as

the coercive authority of a legal system is a prerequisite for the impartial

identication of its norms. Only an institutionalized, enforced legal

system is capable of producing impartially identiable norms, and

distinguishing competent from incompetent legal argumentative

techniques. Law is intangible, imperceptible to our senses, it can be

1. Ingo Venzke, et al., From Public International to International Public Law:

Translating World Public Opinion into International Public Authority, M

P I.  C. P. L.  I’ L. 11 (Paper No. 2016/02, 2016).