International Law and Ethics after the Critical Challenge

Framing the Legal within the Post-Foundational


Around twenty years ago, a challenge was laid down to international law by those writing at the critical periphery of the discipline; a challenge that has yet to find satisfactory response. Although often (mistakenly) characterised as nihilist, this book seeks to recast it in positive terms; to pose the question of what – if anything – is left of international law and ethics if we accept both that apolitical rules are impossible and that the values that must – inevitably – be used to justify them are irreducibly, radically subjective. After detailed analyses of different political and international legal philosophers who have confronted this issue, the answer is located in a “turn to literature” and a rehabilitation of the ancient notion of rhetoric.


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Biographical Note

Euan MacDonald lectures in international law and legal theory at the University of Sydney. He graduated from the University of Edinburgh in 1999, before gaining his doctorate from the European University Institute in Florence, Italy, in 2006.

Table of contents

The Monograph Series; Foreword; Acknowledgements
Part I Setting the Scene: Chapter I The Scope and Aims of the Book:
Introduction; Some Preliminary Clarifications; Post-Foundationalism; Ethics; Justification and Responsibility; Aims and Limits;
Chapter II International Law and the Critical Challenge:
The Primacy of the Periphery; The Foundational Contradictions of International Legal Thought; Liberalism and the Modern Problematic; The Critical Challenge to International Law;
Chapter III Reactions to the Critical Challenge:
Some Preliminary Exclusions; Modern Reactions; Instrumental Pragmatism; Positivism; Hermeneutics; Confessions, Dichotomies, and Trends at the Periphery; Beyond the Critical Challenge;
Part II The Foundations of a Post-Foundational Ethics: Chapter IV A Common Problematic:
The Common Problematic; Nietzsche and the “Sceptical Attitude”; Ethics in Sartre and Beauvoir; Camus: A Shift in Focus;
Chapter V Foucault, Ethics and Enlightenment:
Power and Freedom; The Legacy of the Enlightenment; The Ethics of Self-Creation; Towards a New Game?
Chapter VI Rorty, Epistemology and Literature:
The Possibility of Other Narratives; The Rejection of Epistemology; The Public, The Private and the “Literary Culture”; The Limits of the Public/Private Metaphor;
Chapter VII The Foundations of a Post-Foundational Ethics:
The Problematic of Ethical Post-Foundationalism;
Two Formal Considerations; Inclusion/Exclusion; The Critical Relation; Arguments to Avoid;
Epistemology; Fetishism; Disingenuity; Argumentation and Literature;
Part III The Turns to Ethics in International Law: Chapter VIII Kratochwil, Rhetoric and Communicative Action:
The Turn(s) to Ethics; Post-foundationalism, Ethics and Norms in Kratochwil; Argumentation and Rhetoric; The Normative Dimension of Communicative Action;
Chapter IX Korhonen, Situationality and “The Cave”:
Facing the Post-Foundational; From Silence to the Fortress: Tekhne and Phronesis; The Mysticism of “the Cave” ; A “Retreat” to the Fortress?
Chapter X Franck, Democracy and Fairness:
Franck and Post-foundationalism; The Preconditions of Fairness; Fairness and Democracy; The Disingenuity of Universality;
Chapter XI Rawls and the Law of Peoples:
Rawls’ Trajectory; The New “Original” Position; Human Rights and Distributive Justice;
Post-Foundationalism and Justification;
Part IV A Shifting Paradigm?: Chapter XII From Contradiction to Aporia:
Contradiction and Beyond; Apology/Utopia and Absurdity/Responsibility;From Contradiction to Aporia;
Chapter XIII The Recovery of Rhetoric :
The Shifting Paradigm; The Expulsion of Rhetoric; The Recovery of Rhetoric; The Limits of the Argumentative Paradigm;
Chapter XIV The Expansion of Rhetoric:
On Truth in Literature; Beyond Argument; Surface and Enacted Meaning; Ethics and the Literary Rhetorical Paradigm;
Chapter XV The Rhetoric of Eunomia:
Why Eunomia?; The Structures of Eunomia – An Overview; The Rhetoric of Eunomia; Enacted dialectics; Language; Voice; Metaphor; Technique; The Mystification of Society; Eunomia, Philosophy, Literature;
Part V Conclusions: Chapter XVI Framing the Legal Within the Post-Foundational :
On the Idea of Frames; To Recap; Framing the Legal; A Metaphorical Suggestion;
Bibliography; Index.


Those working in the fields of international law and legal theory, and moral and political philosophers with an interest in post-modernism, post-foundationalism and pragmatism.


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