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Since the end of the nineteenth century, international law has been widely understood as an autonomous legal order, similar in nature if, importantly, not in structure to law within the state.Whilst this understanding has bolstered the professional identity of international legal practice, it has come at the price of a perpetual sense of structural deficiency over the decentralised institutional nature of the international legal order.To maintain the claim to legal autonomy, it has been common to read into the international legal order forms of normative hierarchy accompanied by functional constitutional substitutes (of a legislative, executive, or adjudicative nature).In this book, the author engages critically with the self-defeating nature of these constitutional substitutes, explaining the irresolvable nature of this "institutional problem" as well as the shortcomings of the kind of Rule of Law idealism from which the problem arises in the first place.Instead, the book sets out a plea for international lawyers to understand the purpose and potential of international law on its own terms, whilst at the same time challenging the coherence of the domestic legal paradigm against which its institutional structures are commonly found wanting.
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Modern international law is widely understood as an autonomous system of binding legal rules. Nevertheless, this claim to autonomy is far from uncontroversial. International lawyers have faced recurrent scepticism as to both the reality and efficacy of the object of their study and practice. For the most part, this scepticism has focussed on international law's peculiar institutional structure, with the absence of centralised organs of legislation, adjudication and enforcement, leaving international legal rules seemingly indeterminate in the conduct of international politics. Perception of this 'institutional problem' has therefore given rise to a certain disciplinary angst or self-defensiveness, fuelling a need to seek out functional analogues or substitutes for the kind of institutional roles deemed intrinsic to a functioning legal system. The author of this book believes that this strategy of accommodation is, however, deeply problematic. It fails to fully grasp the importance of international law's decentralised institutional form in securing some measure of accountability in international relations. It thus misleads through functional analogy and, in doing so, potentially exacerbates legitimacy deficits. There are enough conceptual weaknesses and blindspots in the legal-theoretical models against which international law is so frequently challenged to show that the perceived problem arises more in theory, than in practice
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