The Necessity of Imagination: Using the Counterfactual Method to Overcome International Law's Epistemological Limitations

As a social phenomenon, law is subject to countless influences that shape its contours. This quality is compounded in international law, where the regime contends with the contexts, cultures, and complexities of disparate nation-states. Yet, despite international law’s evident contingency, few publicists explore the implications of this quality, preferring to engage with the regime from within the dominant history and logic. This approach narrows both scholarly imagination and regulatory potential, confining us to a contingent status quo. In the following article, I argue for the use of counterfactuals in international legal scholarship to, first, enrich our understanding of the biases that inform our thinking and, second, disrupt scholarly engagement with international law. Today’s international legal order is beset by an array of wicked problems. Since the international law we know is culpable in the rise of these problems, it is shortsighted to rely on the culprit when looking for solutions. Counterfactuals are an effective instrument in stimulating new modes of thought and helping us appreciate that what is could very well be part of the problem.