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Abstract

Should international law be understood as a form of law at all? The premise here is that if we are to get some purchase on that question, we should consult the experience of international law in operation. The analysis proceeds in two steps. First, the Article takes up the litigation connected to the Israeli/West Bank barrier, asking whether that case was or could have been addressed in such a way as to keep faith with minimal principles of legality. It wasn’t, the Article finds, but it could have been. Second, the Article specifies four values that are constitutive elements of the experience of law as law: that law have the capacity to give rise to events in the world (law’s efficacy); that it obligate as a matter of legitimate authority (law’s normativity); that it obligate as a matter of moral rationality (normativity again); and that it maintain a character distinct from the political or partisan (law’s objectivity). International law as seen in the Barrier case is then put to the test with respect to each of the four—and again the outcome is that nothing intrinsic to international law deprived it of the character of law, but that the courts and other institutions of the international system fell short of the law’s promise. These conclusions suggest a position this Article terms “skeptical internationalism”—a position that affirms international law’s project and doctrinal content, but is rebuttably skeptical of the courts and other institutions charged with interpreting that content and carrying that project out. The jurisprudential implications of such a view are explored.

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