This chapter focuses on four aspects of a critical philosophy of international law. First, there is a paradoxical relationship between international law and philosophy, at the same time natural and a bit tense, if not conflictual. Second, the assumptions at the heart of international law are comprised of notions/values and distinctions: universal/particular, hierarchy/equality, inclusion/exclusion, self/other, and public/private. Third, these assumptions and their interactions have three major characteristics: they have a structuring power that plays a crucial role in the determination of issues of legitimacy; the assumptions are presented as true, but this quality of truth is more posited than demonstrated; the assumptions at the core of international law are not only descriptive but also prescriptive. Fourth, all of this has an impact in terms of the legitimacy of international law. The assumptions/distinctions influence the nature, organization, and practice of the building blocks of international law and its sense of legitimacy.

A court faced with a binding precedent that governs the case before it must apply the precedent, overrule it, hive off a new rule from the rule established by the precedent, create an exception to the rule, or distinguish the precedent. In hiving off, a new legal rule is carved out of an established rule to govern a subject that prior to the hiving-off fell within the established rule. The new rule then lives alongside the established rule. Exceptions differ in a fundamental way from hived-off rules. Hived-off rules are free-standing. In contrast, exceptions have no meaning except in the context of the rule from which they are an exception. Distinguishing may be fact-based or rule-based. In fact-based distinguishing the deciding court concludes that a precedent should not be applied to the case before it because of a difference between the facts of the two cases. In rule-based distinguishing the deciding court concludes that a precedent that plausibly applies to the case before it does not actually do so in fact.