In its literature, the adjective ‘modern’ is typically inserted as a preface to the discipline of international law – ‘modern international law’. The rhetoric of modernity within the discipline, in turn, generally designates a liberal posture towards governance, both in terms of describing the nature of conflicts facing transnational regulation and offering solutions through international law. These critical evaluations and normative assessment within the literature are furthermore supported by juxtaposing themselves against what is not modern – whether that means to assert a former period, which is ‘pre’ or ‘early’ modernity, to situate particular actors or ideological predispositions as ‘barbaric’ or ‘anti’-modern, or even to claim that the cosmopolitan project of international law is still trapped within a colonial, or culturally biased, legacy. Academic writing in international law, however, rarely addresses how ‘modernity’ functions within the conceptual vocabulary of the discipline – particularly, what role it might have in shaping its methodological and theoretical assumptions. In this paper, I analyse the rhetoric of ‘modernity’ through its three primary traditions: Christianity, Liberalism, and Marxism. Addressing and contrasting each tradition’s treatment of three key themes – time, history, and the subject – the paper attempts to better understand how ‘modernity’ functions within international legal argument, and concludes by tracing out an alternative perspective forward that draws upon all three traditions, what might be termed, ‘structural jurisprudence’. The underlying argument of the paper is that only by taking all three traditions seriously can policy-makers and scholars begin to overcome not only the current lack of dialogue between contrasting orientations, but perhaps more importantly, break out of the insular and often static disputes and logic that bind their analysis.
|Howard Human and Civil Rights Law Review
|Published - 2016