Trachtman on "The Crisis in International Law"

Abstract

This is the introductory chapter of a manuscript entitled "The Future of International Law: Global Government." Observers of international law have criticized the Westphalian paradigm for nearly a century. The Westphalian paradigm has become less useful, both as a general way to order the world, and as a general way to understand the world. Functional adaptation has already begun to re-order the world inconsistently with the Westphalian paradigm. The European Union is only the most obvious example. But this reordering has been impeded by the continued use of the Westphalian paradigm to understand the world. One of the goals of this book is to suggest a functionalist paradigm that understands the sovereignty of states in utilitarian, and contingent, terms. Indeed, the exceptions to the Westphalian paradigm have been multiplying for the past 100 years, and the movement toward an international law of cooperation that Wolfgang Friedmann documented in 1964 in The Changing Structure of International Law has accelerated and intensified the exceptions to the Westphalian paradigm so much that it no longer satisfies the test of Occam’s Razor. This is the central crisis in international law. A simpler paradigm, one admitting far fewer exceptions, is the functionalist paradigm, which accepts that the state is contingent, and that international law tends to constrain, indeed, to mold, the state based on functional efficiency. 

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