Abstract

In what would become his last interview, Jacques Derrida raised the question about the legacy of his work. What would become of deconstruction after his death? Derrida proposed two contradictory hypotheses: the legacy of deconstruction might be re-invested in a new philosophical undertaking that could produce new intellectual gains, or it might be deposited on a savings account – a dépôt légal – where it would attract only limited legal interest. Derrida suggested that at least part his legacy should be re-invested in the development of a new European concept of international law. This paper is an attempt to explore this hypothetical undertaking by translating the language of deconstruction into the language of international law. It turns out, in the course of this translation, that the relationship between international and domestic law is structured like the distinction between writing and speech – not as a conceptual distinction between equals, but as a conceptual hierarchy. While domestic law has developed organically, embodying the common sense (bon sens, gesunder Verstand) of the people, international law is an artefact, a creation of lawyers and diplomats; while domestic law is a full-fledged system, international law remains primitive – it has no basic norm, no centralized sanctioning system, no prohibition of self-help. It has no totem and taboo. The narrative that supports this conceptual structure is a story of the modern, enlightened concept of civil law, the law of the contrat social. A deconstruction of this conceptual structure produces a new concept of international law that does not embrace a centralized system but challenge, uncertainty and a risk of failure – a law that has no totem and no taboo.