460 Between Yesterday and Tomorrow (1914– )spread of key values from elites downward to the whole population, but in-
stead through the eventual triumph of the victims over the oppressors.
Where the constitutionalists have worried about fragmentation of inter-
national law— while being confi dent that they could overcome it— the criti-
cal writers have been concerned about indeterminacy. Rules, insists Kosken-
niemi, are “few and ambiguous and loaded with exceptions.” Positivists
cheerfully accepted the existence of gaps in the law and were content to wait
patiently until they were fi lled. Th e critical group, however, has scented dan-
ger. Th e fear is that lawyers typically respond to gaps in the law by devising
pseudosolutions in the form of grand- sounding general principles (the “uto-
pia” part of Koskenniemi’s thesis). Th ey then proceed to apply these in the
ser vice of the material interests of ruling powers, that is, their governmental
employers (the “apology” part of the pro cess). Traditional legal analysis
thereby becomes, in eff ect, an elaborate charade, with the end eff ect of en-
sconcing existing vested interests more fi rmly in power.
Th e reality, Koskenniemi insists, is that the hallmarks of the international
legal pro cess are “[u]ncertainty and choice”— and that to assert otherwise,
in the name of general principles, is to be either naïve or dishonest. Th ere
is no set of universal norms to which appeal can be made. Laws arise out of
a complex web of par tic u lar social relations, which must be understood in
their own terms, and not in terms of some (non ex is tent) set of overarching
norms. Koskenniemi explicitly favors “renouncing the search for a World
Rule of Law.”
Th is outlook naturally places the critical school in direct opposition to
the constitutionalists, with their dedication to the rule of law and the search
for global values. Th e constitutionalists have been attacked by the critical
school for being too prepared to accept existing po liti cal and social arrange-
ments without question. Kennedy has chided them for being too concerned
about pro cess rather than substance, too obsessive about making interna-
tional government work eff ectively, instead of worrying about who was do-
ing the governing. “Improving the machinery of government makes no
sense,” he scoff ed, “if scoundrels rule.” He has derided constitutionalism
as “something of a game for intellectuals from the middle powers.” Critical
legal studies, in contrast, has been more intent on changing the identities of
the power holders than in fencing them in by constitutional principles and
the rule of law.