By Mark Osiel
Humanity - 11/16/13
We theorists of international law like to pose venturesome,
vitalizing questions, sweeping in scope: What would an ideal system of
international criminal law look like, for instance, relieved of today’s
geostrategic constraints? How might we lend some conceptual coherence to
such a program, flesh out its normative details? What kind of world
would be required for such a program to become possible, even
intelligible? How should we imagine the workings of such a hypothetical
world?
If we allow ourselves to descend beneath the clouds for a moment, we
may also ask: Precisely how far from that ideal world do we currently
reside? How might we realistically begin to construct its preconditions,
through what process, by which concrete steps? We might further
approach the process social-scientifically, identifying the forces which
would set it in motion, hypothesizing the coalition-composition that
could advance it and, when unavoidable, devise its prudent tactical
retreat. Among the available accounts of global change and theories of
institutional design, which of these might give us a better lever on the
process, help nudge it along? These are laudable questions, especially
the later, more “reality-based,” reflecting at least a bow toward
“non-ideal theory,” in that philosopher’s condescending term of art.
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