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Infrastructure and InfraReg: on rousing the
international law ‘Wizards of Is’*
Benedict Kingsbury
New York University School of Law, USA
Physical, informational and now digital infrastructure features throughout Nation-State
consolidation and imperial extension, in war preparedness and war logistics, in resource
extraction and energy capture and transit, in each quantum step in economic globalisation,
in mass migrations and religious missions, in the global scaling of finance and financiali-
sation, in the global digital economy, in artificial intelligence (AI) and robots, in economic
development strategies and in China’s vast Belt and Road Initiative. International law has
largely aligned with these enterprises, but has seemed not effectively to address massive
anthropocenic degradation, AI, new biotech, and the human and planetary consequences
of extractive capitalism. Science and technology studies, and work extending from Bruno
Latour and Susan Leigh Star to governance-by-prototype and ‘new materialism’, have gen-
erated rich insights about infrastructure. These are being extended to ‘infrastructure as
regulation’(the infra-reg project). This paper explores implications for reinvigorating
deliberative forward-planning international law projects to address technologically driven
transformation, which follow from ‘thinking infrastructurally’.
Keywords: infrastructure, internet, information, technology, international law, regulation,
anthropocene, science and technology studies
1 INTRODUCTION
Be ‘the Wizards of Is’was the Cambridge international law scholar Philip Allott’s
memorable exhortation to what he described as academics of the thinking sort.
1
By
this he did not mean a reinscription of sein und sollen, a social scientific view that
the job is to discern how things are but not to say how they should be.
2
His meaning
was, rather, that the world is of our own making, the human capacity to think defines
the bounds of the possible, and the things we can push ourselves to construct in our
consciousness become –by that act of construction –the world which is. Measured
against this view of what the profession and vocation of academics should be, he
regarded universities as falling spectacularly short. He lamented the advent of the effi-
cient industrial-scale universities from the nineteenth century onward (in Prussia, then
* This paper is based on the text of the opening address given in the context of the 8th Annual
Cambridge International Law Conference that took place on 20–21 March 2019 at the Faculty of
Law of the University of Cambridge, UK.
1. Philip Allott, ‘Kant or Won’t: Theory and Moral Responsibility (The BISA Lecture,
December 1995)’(1997) 23(3) Review of International Studies 339.
2. A description of such a view is given by Nicoletta Bersier Ladavac, ‘Sein and Sollen,“Is”
and “Ought”and the Problem of Normativity in Hans Kelsen’in Nicoletta Bersier Ladavac,
Christoph Bezemek and Frederick Schauer (eds), The Normative Force of the Factual
(Springer, Basel 2019) 29.
Cambridge International Law Journal, Vol. 8 No. 2, pp. 171–186
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in the United States of America (US)), the separation of knowledge inquiry into sepa-
rated faculties each moated and defended by its own territorial sea, the overbearing
tyranny of metrics of publications and performance, and the obsessions of form repre-
sented by phenomena such as ‘foot-and-note disease’. In striking the opening note of
this Cambridge International Law Journal (CILJ) conference on new technology and
international law at Cambridge University’s Law Faculty, I will endeavour to keep
Philip Allott’s rousing call in mind. Many of us are working on broad framing
ideas for international lawyers comprehending digital technology and digitisation as
transformative social phenomena calling for some new thinking on the bounds of
the possible. I am involved in a couple of those projects myself, on global data law
and on global digital corporations. But today, I would like to talk a little about infra-
structure, or more precisely, the idea of infrastructure as regulation, which may seem
obscurantist but to me offers one useful and perhaps even foundational way of opening
up thinking about international law and technology of all kinds.
For those of us whose contemplative life or practical profession is international law,
experience daily recalls the insight of the English School of International Relations
that international lawyers tend to be found somewhere on the via media between
grand cosmopolitan theorising and hard-bitten realist practice, in an avocation that
looks to bring some law to power and some power to law. This position is often called
Grotian.
3
At times of monumental change, quite orthodox doctrinal international law-
yers may be moved to think big and boldly. Here in Cambridge, we might have
thoughts among past Whewell professors of Lassa Oppenheim (1858–1919) toiling
day and night during World War I –a tragedy of violence for his adopted Britain
and his native Germany –to craft a whole new form of inter-State organisation for
the future international society of the post-war.
4
Or Hersch Lauterpacht (1897–
1960),workingfeverishlyattheendofWorldWarIItobuildalawandanepoch
of human rights at a time when many he loved in his native Galicia had perished in
the Nazi maelstrom.
5
Or in a time without such an imperative of crisis, James
Crawford (1948–) seizing the short opening of the window after the Cold War to
help promote juridification and judicialisation in the ILC Articles on State
Responsibility and the Rome Statute of the International Criminal Court. Is the trans-
formation in society and life being wrought by the ongoing layers of technological
revolution so challenging and so profound for international law? We are all of us gath-
ered here because we think it might be. How then to think in this transformation, and
from it?
‘Stay in your lane.’One intuition for international lawyers grappling with techno-
logical transformations is not to swerve rashly into areas better left to others with more
expertise or more apposite tools. Vaughan Lowe put this prudential counsel pithily:
‘[l]awyers have a contribution to make. They offer one way …. But it is only one
way among many. There are many times when it is much better to call upon a politi-
cian, or a priest, or a doctor, or a plumber’.
6
This is advice about practical intervention.
Without doubt the design, maintenance, repair and improvement of plumbing is in
many cases best done by plumbers. Even in a reflective rather than practical mode,
3. Hedley Bull, Benedict Kingsbury and Adam Roberts (eds), Hugo Grotius and
International Relations (OUP, Oxford 1990).
4. Lassa Oppenheim, The League of Nations and its Problems (Longman, London 1919).
5. Hersch Lauterpacht, An International Bill of the Rights of Man (Columbia University
Press, New York 1945).
6. Vaughan Lowe, International Law (OUP, Oxford 2007) 290.
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in which international law is averred as a lens for intellectual engagement and critique
of aspects of the world, there may not be enough legal depth or coherence to enable
profound reflection or critique in splintered sub-fields with technological denomina-
tions: international law and the printing press,
7
or the steam engine, or the smart
phone.
8
Yet we know that the ‘technical’in technology is not independent of organi-
sational forms, social relations and responses, economic structures and finance, or the
networks of enabling or related or consequential technologies in which a particular
technical practice is located. In their different composites these are each influenced
by law/regulation and are generative of law/regulation.
If the ‘technical’of technologies is largely for the plumber or the biophysicist or the
software engineer, lawyers can and do study or influence the legal and organisational
dimensions of, and the legal implications of, the technical, as they are embedded in and
shaped by societies and cross-border legal and societal and economic connections. In
reverse, law is itself a social production, in which the ‘technical’of technology may
also act. Science and technology studies (STS) frame some of these relations.
Within STS, the idea from actor–network theory (ANT) that non-human actants
must be studied in their integration with the human actants in a particular body of
practice
9
–a laboratory with its physical test-tubes or gels and its personnel engaged
in scientific research and academic papers production, for example
10
–has opened a
technology research agenda for international law beyond law-and-society or law-
and-economics. This is manifest in excellent work on actants such as ‘legal opinions’
or ‘rule of law’in the work of legal counsel of international organisations,
11
and on
the impact of new communications or document-editing technologies on diplomacy.
12
7. The prominent place of the printing press in the literature on the profound and disruptive
effects of new communications technologies is exemplified in Neil Postman, ‘Address to New
Tech 1998 Conference: Five Things We Need to Know about Technological Change’(Denver,
Colorado, 27 March 1998) <https://web.cs.ucdavis.edu/~rogaway/classes/188/materials/post
man.pdf> accessed 24 September 2019. His particular assertion there was that the mass produc-
tion of bibles in vernacular editions helped the Reformation Protestants overcome the monopoly
of literate scriptural expertise held by priests in the Catholic tradition.
8. Frank H Easterbrook, ‘Cyberspace and the Law of the Horse’(1996) University of
Chicago Legal Forum 207; Lawrence Lessig, ‘The Law of the Horse: What Cyberlaw Might
Teach’(1999) 113(2) Harvard Law Review 501.
9. Bruno Latour, Reassembling the Social: An Introduction to Actor–Network Theory (OUP,
Oxford 2005). A normative–critical perspective on ANT is Steve Fuller, ‘Why Science Studies
has Never been Critical of Science: Some Recent Lessons on How to be a Helpful Nuisance and
a Harmless Radical’(2000) 30(1) Philosophy of Social Science 5.
10. Bruno Latour, Science in Action: How to Follow Scientists and Engineers Through Society
(Harvard UP, Cambridge MA 1987). As Andrew Pickering observed: ‘[t[his actor–network ana-
lysis flew in the face of technological and social determinist perspectives (technological change
causes and determines social change, or vice versa). More profoundly, it transcended the dualist
understandings that underpin such determinisms, understandings that posit a clean and prin-
cipled split between the human and the nonhuman and construct independent accounts of
each –as, for example, the natural sciences seek to grasp the material world as it exists indepen-
dently of human beings, or the social sciences seek to speak of a pure realm of the social’:
Andrew Pickering, ‘We have Never been Modern (Review) (1994) 1(3) Modernism/
Modernity 257, 257.
11. Dimitri Van Den Meerssche, ‘The World Bank’s Lawyers: An Inquiry into the Life of Law
as Institutional Practice’(PhD Thesis, European University Institute 2019).
12. On the impact of new shared-document and file-editing systems on routine diplomatic
negotiations within the European Union (EU) see Rebecca Adler-Nissen and Alena
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It has been one of the influences in innovative studies on the anthropology of bureau-
cracy,
13
and on implication of the ‘new materialism’in legal scholarship.
14
Work in STS, ANT and humanities scholarship has tended to challenge divides
between ‘science/society, technology/science, macro/micro, economics/research,
humans/non-humans, and rational/irrational’.
15
Efforts to transcend deep separations
between human and non-human,
16
life and non-life,
17
earth systems and humanity
18
have pushed against some commitments or assumptions on which various international
law categories and doctrines have become encrusted.
19
Rethinking of categories and
doctrines has seeped into some places and spaces of doctrinal and institutional inter-
national law; but for the most part it has been a seepage rather than an inundation.
International law scholarship has been more broadly marked, however, by social
science projects in recent decades to bridge the fissure between ideas of nature and
ideas of human society.
Drieschova, ‘Track-Change Diplomacy: Technology, Affordances, and the Practice of
International Negotiations’(2019) 63(3) International Studies Quarterly 531. A modern classic
is Cornelia Vismann, Files: Law and Media Technology (Stanford University Press, Stanford
2008). See also Markus Krajewski, Paper Machines: About Cards and Catalogs, 1548–1929
(MIT Press, Cambridge MA 2011).
13. Nayanika Mathur, Paper Tiger-Law, Bureaucracy and the Developmental State in
Himalayan India (CUP, Cambridge 2015).
14. Reflections on some of the literature are in Hyo Yoon Kang, ‘Law’s Materiality’in
Andreas Philippopoulos-Mihalopoulos (ed), Routledge Handbook of Law and Theory
(Routledge, London 2019) 453; Hyo Yoon Kang and Sara Kendall, ‘Legal Materiality’in
Simon Stern, Maksymilian Del Mar and Bernadette Meyler (eds), The Oxford Handbook of
Law and Humanities (OUP, Oxford 2019); Christopher Tomlins, ‘Materialism and Legal
Historiography, From Bachelard to Benjamin’in Stern et al (eds), The Oxford Handbook of
Law and Humanities (OUP, Oxford 2019).
15. Bruno Latour, ‘Technology is Society Made Durable’in John Law (ed), A Sociology of
Monsters: Essays on Power, Technology, and Domination (Routledge, London 1991) 103, 130.
16. Kate Soper, What is Nature? Culture, Politics and the Non-Human (Blackwell, Cambridge
MA 1995).
17. Elizabeth Povinelli, Geontologies: A Requiem for Late Liberalism (Duke UP, Durham
2016).
18. William Connolly, Facing the Planetary: Entangled Humanism and the Politics of
Swarming (Duke UP, Durham 2017) 175ff; Bruno Latour, ‘Is Geology the New Umbrella for
All the Sciences? Hints for a Neo-Humboldtian University’(Cornell University, 25 October
2016) <www.bruno-latour.fr/sites/default/files/150-CORNELL-2016-.pdf> accessed 24
September 2019.
19. Anne Peters, ‘GlobalAnimalLaw:WhatitisandWhyWeNeedit’(2016) 5(1)
Transnational Environmental Law 9; Anne Peters (ed), American Journal of International
Law Unbound Volume 11: Symposium on Global Animal Law (CUP, Cambridge 2017) 252–
281, 395–424; Gabriel Eckstein, ‘Of Rivers, Deities, and Legal Persons: A New Approach to
Managing Freshwater Resources?’(Global Water Forum, 3 September 2018) <http://www.
globalwaterforum.org/2018/09/03/of-rivers-deities-and-legal-persons-a-new-approach-to-
managing-freshwater-resources/> accessed 24 September 2019, concluding a series on ‘Are
Rivers Legally People?’. Peter Szigeti of the University of Alberta in Canada has begun a pro-
ject ‘to substitute the (horizontal, large-scale, rectangular and linear) logic of territorial thought
with the (vertical and horizontal, molecular-scale, circular) logic of biogeochemical cycles’:
Peter Szigeti, ‘Towards a Law of Biogeochemical Cycles’(Presentation Outline, 31
October 2017) <https://www.law.nyu.edu/sites/default/files/upload_documents/Peter Szigeti -
Oct 31.pdf> accessed 27 September 2019.
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Bruno Latour diagnosed the sharp (and in his view, pernicious in proportion to its
sharpness) distinction between nature and society as the enduring result of formations
in seventeenth-century Western thought.
20
The condensed genealogy Latour gave was
neatly summarised by Andrew Pickering in this way:
We need, says Latour, to think about the ‘modern constitution’bequeathed to us in the
seventeenth century by people like Robert Boyle and Thomas Hobbes. Boyle and his friends
in the Royal Society invented a way of speaking about nature that was (ostensibly at least)
independent of the speaker; this was the origin of modern experimental science. Hobbes, at
the other pole, found a way of theorizing social and political order in terms of distinctively
human conflicts and agreements, independent of material circumstances. Boyle and Hobbes,
then, jointly constructed the program for purifying the discourses of nature and society –
expunging from each the traces of the other –that, for Latour, is definitive of modernity.
21
Latour’s characterisation of this as being about modernity might reasonably be put
to one side –although the genealogy of what people at different times have thought it
means to be ‘modern’brings to life a set of social referents that have actuated many
human enterprises. Latour’s own claim in any case was that we have never been mod-
ern. But the diagnosis of a separation with profound effects between nature and society
has been an important preliminary for animation of projects to reintegrate nature and
society or in some way to transcend the distinction –in thought, in empirical endea-
vours, and in communicative representation. With the closeting of natural law and the
secular disavowal of divine law (these directions are now being reversed in some
respects, but that is for another day), the broadly positivist approaches favoured in
international law have cleaved strongly to the society side of the society/nature divide,
and have been mutually reinforcing with tendencies to characterise technology in the
same way.
22
20. Bruno Latour, We have Never been Modern (Harvard UP, Cambridge MA 1993). The
approach and analysis in this book are contested on many dimensions, but its argument has
had wide currency.
21. Pickering (n 10) 257.
22. Embodied in the view that technology comprised human-made devices for working on and
with nature. Exemplary of such a view are these remarks from Ian McNeil, ‘Introduction’in Ian
McNeil (ed), An Encyclopedia of the History of Technology (Routledge, New York 1990) 1, 3:
‘[t]echnology is all around us: we live in a world in which everything that exists can be classified
as either a work of nature or a work of man. There is nothing else. We are concerned here with
the works of man, which are based on technological and, to some extent, aesthetic factors …[i]n
our context, at least, science is the product of minds seeking to reveal the natural laws that gov-
ern the world in which we live and, beyond it, the laws that govern the universe. Technology, on
the other hand, seeks to find practical ways to use scientific discoveries profitably, ways of turn-
ing scientific knowledge into utilitarian processes and devices’. Latour experimented with the
idea that this separation of technology from society was another misguided purport of the ‘mod-
ernist settlement’, but this seems to be a mismatch of scale: the meso or micro scale at which
technology is usually understood is not determined by and not commensurable with the
macro scale at which the claim of modernity operates: see Philip Brey, ‘Theorizing
Modernity and Technology’in Thomas J Misa, Philip Brey and Andrew Feenberg (eds),
Modernity and Technology (MIT Press, Cambridge MA 2003) 35. Or as Misa put it, ‘[i]t is
in the details of technology, and not its macro-level abstractions, that one can escape the (var-
ious) traps that Heidegger, Ellul, Lyotard, Borgmann, and others have set for themselves’:
Thomas J Misa, ‘The Compelling Tangle of Modernity and Technology’in Thomas J Misa,
Philip Brey and Andrew Feenberg (eds), Modernity and Technology (MIT Press, Cambridge
MA 2003) 13. Latour also tried to use ANT methods to reintegrate the social and the technical
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Extensions of ANT or STS approaches to law have not been many and have not
been easy. Bruno Latour’s excursions into law in the institutional practices of the
French Conseil d’Etat have been met with some scepticism among legal scholars con-
vinced that law and its languages and determinations do not bear up so robustly as
Latour perhaps assumes. In particular, much can be said against Latour’s confidence
in law’s binaries,
23
and his proposition that ‘everyone seems to agree that law has
its own way of defining true and false, although everyone also agrees that such a
way does not resemble what is needed for extending the scope of referential state-
ments’.
24
Yet his faith in what the legal enterprise can be holds an attraction for
many, as the different perils from collective faithlessness are felt by many people to
be coming ever closer. Latour finds a blend of anchoring and piety in his explication:
Even if this original way of the law is ridiculed for its formalism, belittled for its archaic dra-
maturgy, mocked for its wide use of imaginary solutions, it remains the case that it is always
recognised that what holds legally, well, holds for good –in some fashion to be determined …
[i]n that sense, Law has been respected by the Moderns in a way that has never been the case for
divinities, gods or fictions, whose dignity has been so thoroughly crushed that they have been
taken as ‘things in the head’, that is for things which have no existence at all. By contrast, when
confronted with law, Double-Click [DC], my nemesis, remains toothless.
25
How and from where any sufficient law can be found or assembled and operated under
conditions of globalisation, finance and extractive capitalism, freewheeling technology
and digitisation, nationalism, and anti-institutionalism is the stunningly difficult pro-
blematique at present being confronted.
One view of law is of human-made rules and practices and institutions to regulate
(enable, channel, control) humans in their experimenting with, and their inventing,
deploying, financing, ownership, registration, licensing, transfer, and uses of, particu-
lar ‘technologies’. An illustration can be adapted from the work of Bourdieusian
sociologist Grégoire Mallard tracing a succession of such regulatory approaches in
relation to ‘counter-proliferation’controls on the acquisition and development of
nuclear weapons. This layered from ‘safeguards’on the use of traded nuclear technol-
ogy and fissile materials in Euratom and the International Atomic Energy Agency
(IAEA), to the Non-Proliferation Treaty and its distinctions between different classes
of States, to special regimes for particular internationally targeted countries, to controls
on private conduct in transfers after the AQ Khan network became generally known, to
targeted sanctions and fierce US nationally driven, globally reaching controls on pay-
ments, finance and trade in unrelated products.
26
Law presented in this Bourdieusian
through the speculation that technology plays the role of rendering unstable social relations dur-
able (and stabilised relations are usually forms of domination). See Bruno Latour, ‘Technology
is Society Made Durable’(1990) 38(S1) Sociological Review 103, 130–131 (a Special Issue edi-
tedbyJohnLawcalled‘Sociological Review Monograph Series: A Sociology of Monsters:
Essays on Power, Technology and Domination’).
23. Alain Pottage, ‘The Materiality of What?’(2012) 39(1) Journal of Law and Society 167.
24. Bruno Latour, ‘The Strange Entanglement of Jurimorphs’in Kyle McGee (ed), Latour and
the Passage of Law (Edinburgh UP, Edinburgh 2015) 331, 332.
25. Ibid.
26. Grégoire Mallard, Fallout: Nuclear Diplomacy in an Age of Global Fracture (University
of Chicago Press, Chicago 2014); Grégoire Mallard, ‘Antagonistic Recursivities and Successive
Cover-Ups: The Case of Private Nuclear Proliferation’(2018) 69(4) British Journal of
Sociology 1007; Grégoire Mallard, ‘Governing Proliferation Finance: Multilateralism,
Transgovernmentalism, and Hegemony in the Case of Sanctions Against Iran’in Eric
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field could organise society, or structure the work of humans in relation to nature, or
incentivise or regulate the production and use of technology in such processes –or it
might be configured so as to accomplish none of those things.
The scholarly-professional style and concepts of most international lawyers make
for an uneasy embrace of projects to think integrally about nature and society and
technology and law. I suggest that ‘infrastructure’is an idea which offers unusual
promise for international lawyers interested in such projects. Most of this promise is
still to be realised; but the number of scholars exploring its possibilities is fast
increasing. By way of at least a slight stirring in response to Philip Allott’strumpet
call (and in the mode of conjecture rather than epiphany), I will offer a few basic
notes from my own initial exploring of infrastructure studies and thinking infra-
structurally. I focus here on things international lawyers have to learn from infra-
structure studies and thinking infrastructurally, but as a precursor to the
responsibility in later work to consider what international law might in turn contri-
bute to these fields.
2 INFRA-REG: THINKING INFRASTRUCTURALLY ON LAW, RIGHTS AND
REGULATION
‘Infrastructure’is one of a cluster of technology-linked concepts that opens up promis-
ing paths for international lawyers thinking about technology and society. Other con-
cepts closely related to ‘infrastructure’include system, network, platform and machine
learning/artificial intelligence (AI). Each of these terms has escaped the confines of
any general-purpose definition, even as each continues to be used with some degree
of precision or at least shared meaning in various communities of practice. As encom-
passing terms, each has an array of meanings that has expanded in an entropic way,
with the degree of entropy a combined function of decades in use and the freneticism
of new development. Thinking with concepts in this area is necessarily a search for
viable routes between the Scylla of excessive de-differentiation (where distinctions
of basic importance are missed or covered over) and the Charybidis of continuous
addition or excessive splintering (where the proliferation of concepts and pathways
defeats unified thought). In this discussion, I will confine myself to infrastructure,
but first elaborate on these other related concepts briefly to position ‘infrastructure’
in relation to robotics/AI, platforms, systems and networks.
Perhaps a vestige or artifact of the inert railway bed as an original of ‘infrastructure’
is the sense that infrastructure is an enabler rather than an active agent: outside its own
physical bounds, it enables rather than does. A contrast is readily drawn between
ordinary parlance about infrastructure, and debates about whether some robots may
have agency to the extent even that some kind of legal personality might sensibly
be attributed to them. As the European Parliament put it: ‘[t]he more autonomous
robots are, the less they can be considered to be simple tools in the hands of other
actors (such as the manufacturer, the operator, the owner, the user, etc.) …ultimately,
the autonomy of robots raises the question of their nature in the light of the existing
Brousseau, Jean-Michel Glachant and Jérôme Sgard (eds), The Oxford Handbook of Institutions
of International Economic Governance and Market Regulation (OUP, Oxford 2019,
forthcoming).
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legal categories or whether a new category should be created, with its own specific
features and implications’.
27
The scholarship on platforms has (so far) positioned conceptual thinking about plat-
forms somewhere in between old-style infrastructure and new-era robotics. Platforms
are programmable, more homogeneous (than infrastructure) in their core but with mod-
ular variable components, their interoperability comes more from application program-
ming interfaces (APIs) than from old-style industry standards, they are updated very
frequently, the larger ones are private, profit-making and fast-scaling,andinmany
countries they are regulated by tax, antitrust, consumer protection and intellectual
property law, but not so much by the forms of regulatory law typically applied to
major physical infrastructure or utilities.
28
Scholarship on systems
29
and networks has many threads. Some have been brought
into explicit relation with ideas about infrastructure. One prominent account is of indi-
vidual closed systems with central control (such as a local electricity generation com-
pany with only local distribution) which are eventually brought into coordinated/
controlled networks enabling them to interoperate (for example, in a national power
grid) with open and reconfigurable characteristics. This kind of network, with gate-
ways and standards and major roles of users, is (by stipulation) an infrastructure, as
would be a weaker but coordinated network of heterogeneous networks, like the inter-
net.
30
This approach to infrastructure as composed in lots of parts made at different
times, and more or less networked,
31
makes notable contributions in highlighting
27. European Parliament Resolution of 16 February 2017 with Recommendations to the
Commission on Civil Law Rules on Robotics [2017] (2015/2103(INL)) AB and AC. A paper
seeking to position this debate in relation to questions of legal personhood for artificial interna-
tional law entities ranging from the Bank for International Settlements, the International Tin
Council, to the United Nations, and to natural entities such as the Ganges and Whanganui rivers,
is Joanna Bryson, Mihailis Diamantis and Thomas Grant, ‘Of, For, and By the People: The
Legal Lacuna of Synthetic Persons’(2017) 25(3) Artificial Intelligence and Law 273. For the
proposition that (hypothetical) incorporeal spontaneous intelligence entities with consciousness
might be more comparable to humans (and more meriting of legal personhood) than are AI enti-
ties with consciousness, see Jiahong Chen and Paul Burgess, ‘The Boundaries of Legal
Personhood: How Spontaneous Intelligence Can Problematise Differences Between Humans,
Artificial Intelligence, Companies and Animals’(2019) 27(1) Artificial Intelligence and Law
73, 77 (they indicate that ‘[t]he idea of spontaneity …relates to something akin to the terms
of a Hayekian spontaneous order: something that arises from human action but not human
design’).
28. Christophe Plantin, Carl Lagoze, Paul N Edwards and Christian Sandvig, ‘Infrastructure
Studies Meet Platform Studies in the Age of Google and Facebook’(2016) 20(1) New Media
& Society 293.
29. Niklas Luhmann, Social Systems (Stanford UP, Stanford 1995) (work of particular impor-
tance in its focus on complexity and (self-)regulation of systems). See also Eugene Yates (ed),
Self-Organizing Systems: The Emergence of Order (Plenum Press, New York 1997) and Scott
Camazine, Jean-Louis Deneubourg, Nigel R Franks et al (eds), Self-Organization in Biological
Systems (Princeton UP, Princeton 2001).
30. Paul Edwards, Steven Jackson, Geoffrey Bowker et al, ‘Understanding Infrastructure:
Dynamics, Tensions, and Design’(January 2007) Report of a Workshop on ‘History &
Theory of Infrastructure: Lessons for New Scientific Cyberinfrastructures 12 <https://pdfs.
semanticscholar.org/3e63/68719913ff02ebf1000ccffe0db213e09481.pdf> accessed 24
September 2019. This report is an excellent introduction to the entire field.
31. Ibid. See also Susan Leigh Star, ‘The Ethnography of Infrastructure’(1999) 43(3)
American Behavioral Scientist 377.
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the roles of technology transfer, localised and user-led development, local social and
organisational practices inflecting technologies and their reception, and gateways and
standards. However this evolutionary framing is far from universal. Indeed, many
sophisticated participants in (or entrepreneurs of) networks profess doubt that a pro-
found understanding of ‘network’as a concept is yet available. Nonetheless, it may
be noted that ‘network’as a metaphor tends to be represented as non-hierarchical;
influence and importance may be registered in larger nodes and denser edges, but
not in formal governance. By contrast, infrastructure imports an element of differentia-
tion, stratification and hierarchy. It involves some verticality in the separation of layers
of administration, bureaucracy, rate-setting, adjudication, financing and so on –which
is also consonant with the development of law and institutions.
Thinking infrastructurally typically entails understanding infrastructure not simply
as a thing, but as a set of relations, processes and imaginations. One well-established
approach brings together in infrastructural thinking the technical (the designed and
engineered physical and software elements), the social (the human and non-human
actants in their intricate relations), and the organisational (the forms of entity, regula-
tory arrangements, financing, inspection, governance, etc.). It is only possible to
understand the processes of infrastructure, and the consequences or potential of any
intervention in infrastructure, by fully exploring each of these and their joint interac-
tions and effects. This combination opens an analytic window into the thickening of
infrastructure, the development of hierarchies and routines and rationalities in these
interactions, which capture power and hierarchy more comprehensively than tradi-
tional network-analysis theory, with its largely non-hierarchical models (in two or
three dimensions).
32
Law may intervene in the technical, the social and the organisa-
tional, and each of these may be embedded in a particular environment of legal forms
and relations. Thomas Parke Hughes brought much of this to life in his classic study of
urban electrification in several areas of Europe and the United States in the early years
of the twentieth century:
Chicago and Berlin each had a centralised power and light system supplying the entire city
from a handful of modern power stations; Greater London [in 1913] had sixty-five electrical
utilities, seventy generating stations …forty-nine different types of supply systems, ten dif-
ferent frequencies, thirty-two voltage levels for transmission and twenty-four for distribution,
and about seventy different methods of charging and pricing.
33
This was certainly part of the bill of particulars in demands in London in that period
for consolidation and regulatory reform, with denunciations that boundaries for mod-
ern electricity service should not be derived from ancient boundaries allocating juris-
diction among ecclesiastical authorities –but Hughes’s rich study draws a more
complex picture of social and industrial patterns and transport services in which this
fragmentation is more intelligible. A study by legal scholars of public–private partner-
ship (P3) contracts for infrastructure construction in Canada chronicles the short life of
32. William J Rankin, ‘Infrastructure and the International Governance of Economic
Development, 1950–1965’in Jean-François Auger, Jan Jaap Bouma and Rolf Künneke (eds),
Internationalization of Infrastructures (Delft University of Technology, Delft 2009) 61, 62:
‘even though an electric grid can be seen both as a network and as infrastructure, as a network
it is defined by connections and pathways through which something circulates, while as infra-
structure it is defined by its supportive relationship to other economic activities’.
33. Thomas Parke Hughes, Networks of Power: Electrification in Western Society, 1880–1930
(Johns Hopkins Press, Baltimore 1983) 227.
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the neoliberal venture in reducing governmental rule-making about these contracts by
moving to deal-by-deal negotiations to pay the private sector to take on contractual
risks. Driven not only by bureaucratic and corporate preferences for precedent but
also by the demands of globally active pension funds for stable risks and 40-year
terms in order to have a predictable long-term return on the financing they provide,
the neoliberal deals label had become a mask for standard boilerplate contract terms
and project formulation regardless of vast differences among the sites and engineering
or social challenges.
34
The term ‘infrastructure’seems to have migrated into English-language writing in
the last quarter of the nineteenth century from French railroad engineering parlance, to
be joined by other locomotion-related transpositions from French such as garage and
metro.
35
‘Infrastructure’was a category adopted in 1949 to refer to physical and com-
munications facilities needed in the project of common West European defence, in part
because its imprecision and elasticity diplomatically left open which items would be
encompassed in multi-country cost-sharing amongst the severely cash-strapped parti-
cipants, and the ensuing North Atlantic Treaty Organization (NATO) in 1951 promptly
established an Infrastructure Committee which proved remarkably enduring.
36
The
practice and philosophies of international development assistance after President
Truman’s 1949 avowal of this commitment veered quickly into an embrace of ‘infra-
structure’, partly as a more tangible substitute for the economic terminology of social
overhead capital –roads, education, etc. –which typically supplied a valuable return
for the whole society and its individual enterprises but needed to be supplied publicly
or collectively.
37
Under the influence of Cold War politics, infrastructure became a
mainstay in project-lending by the World Bank, and in the concessional funding the
Bank began to disburse as a counter (in part) to the proposed Special United
Nations Fund for Economic Development (SUNFED). Marxian terminology of super-
structure and base also evolved, particularly under the influence of Louis Althusser, so
that both material and immaterial elements of the base came at times to be called
‘infrastructure’. The idea that intangible or non-material elements could equally be
regarded as infrastructure became (neo-)liberal orthodoxy with the early 1990s turn
in development policy and in World Bank practice to regard good governance and
(national) institutions –and the ‘infrastructure of markets’–as a vital determinant
in development trajectories. Onto this was layered a strong interest in techniques
and technologies for regulation in relation to (often newly corporatised or privatised)
physical infrastructure,
38
and eventually also an interest in private standard-setting and
regulation as itself infrastructural. This entire set of infrastructural agendas drove a
demand for information, the deployment of informational and quantification
34. Mariana Valverde, Fleur Johns and Jennifer Raso, ‘Governing Infrastructure in the Age of
the “Art of the Deal”: Logics of Governance and Scales of Visibility’(2018) 41(S1) Political and
Legal Anthropology Review 118.
35. Ashley Carse, ‘Keyword: Infrastructure –How a Humble French Engineering Term
Shaped the Modern World’in Penelope Harvey, Casper Bruun Jensen and Atsuro Morita
(eds), Infrastructures and Social Complexity: A Companion (Routledge, London 2016) 27.
36. NATO Infrastructure Committee, ‘Fifty Years of Infrastructure’(NATO, Brussels, 2001)
<https://www.nato.int/structur/intrastruc/50-years.pdf> accessed 24 September 2019.
37. William J Rankin, ‘Infrastructure and the International Governance of Economic
Development, 1950–1965’in Jean-François Auger, Jan Jaap Bouma and Rolf Künneke (eds),
Internationalization of Infrastructures (Delft University of Technology, Delft 2009) 61.
38. Navroz Dubash and Bronwen Morgan (eds), The Rise of the Regulatory State of the South:
Infrastructure and Development in Emerging Economies (OUP, Oxford 2013); Megan
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technologies,
39
and a kind of informational infrastructure which itself engaged in reg-
ulatory governance and came to be invested (sometimes under the ‘Big Data’moniker)
with attributes reputed to meld practices of data, information, knowledge and wis-
dom.
40
A shift to advanced digital infrastructure –engaging such sources as
internet-of-things devices, sensors, biometric scans, satellite images, chemical trace
detection, bank and money transfer anomalies, social media links and content analysis,
telecommunications metadata, or vaccination records –and often involving contracts
with private companies and to be processed by machine learning (ML)/artificial intel-
ligence (AI) systems, is now in progress in international treaty organisations as in
many other institutions. Unsurprisingly, the international legal framework for much
of this is at present scanty, woefully lagging, and in urgent need of construction.
When the Panama Canal was being designed at the turn of the twentieth century –
before and after the contrived secession of Panama from Colombia –the route chosen
entailed raising vessels well above sea level and dropping them down to sea level to
exit on the other side, using locks. The topography meant this could only be accom-
plished using massive quantities of fresh water for each vessel transit. The jurisdiction
of the canal authority thus was defined to include not only the filament zone of the
canal and its channels, but also key highlands and streams of the watershed.
41
When drought occurs in the area, as happened in 2019, the use of water by local popu-
lations is radically curbed to keep the canal open.
42
Whatever might now have been the
politics or law of water allocation in Panama, in an era of constitutionalism and Inter-
American human rights institutions, the regulatory possibilities are heavily constrained
by the infrastructure and the sustaining of choices made long ago and the follow-on
logic of widening to maintain the canal’s global trade role. When the powerful
urban planner Robert Moses built New York’s parkway roads to enable access
between the crowded city and the suburbs and beaches of Long Island, he built numer-
ous low overpasses, preventing passage by trucks, but also travel by buses on which
lower-income people depended (including many members of minority groups). He
thus accomplished by infrastructure what he could not have done by legal or admin-
istrative rulemaking.
43
And his choices made well before the civil rights movement’s
victories continue to influence access and behaviour many decades later –the bridges
would be prohibitively expensive to raise or remove. Nowadays, digital platform com-
panies exercise such opportunity-structuring powers with formal public oversight that
probably does not exceed that which Robert Moses worked under. These infrastructural
Donaldson and Benedict Kingsbury, ‘Ersatz Normativity or Public Law in Global Governance?
The Hard Case of International Prescriptions for National Infrastructure Regulation’, (2013)
14(1) Chicago Journal of International Law 1.
39. Sally Engle Merry, The Seductions of Quantification (University of Chicago Press,
Chicago 2015); Sally Engle Merry, Kevin Davis and Benedict Kingsbury (eds), The Quiet
Power of Indicators (CUP, Cambridge 2015); Kevin Davis, Angelina Fisher, Benedict
Kingsbury et al (eds), Governance by Indicators (OUP, Oxford 2012).
40. Bruno Strasser and Paul Edwards, ‘Big Data is the Answer …But What is the Question?’
(2017) 32(1) Osiris 328.
41. Ashley Carse, Beyond the Big Ditch: Politics, Ecology, and Infrastructure at the Panama
Canal (MIT Press, Cambridge MA 2014).
42. Ashley Carse, ‘Drought as an Infrastructural Event’(2016) 7 Limn <https://limn.it/articles/
drought-as-infrastructural-event/> accessed 24 September 2019.
43. Langdon Winner, ‘Do Artifacts have Politics?’(1980) 109(1) Daedalus 121. What exactly
Moses was motivated by in his choices, and how significant it really was for access in the long
term, are much debated.
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choices operate as regulation –but these regulators are often themselves only thinly or
unevenly regulated. One idea of infrastructure-as-regulation (‘infra-reg’) is that infra-
structure can (and often does) operate in some significant relation to law. In crude sim-
plification, infrastructure may be a means of implementing law, or of enabling law. It
may be a substitute for law or displace law. It may be an obstacle to law or prevent
law, or interact pathologically with law. It shapes juridical relations and imaginaries.
Infrastructure may create dependencies, engender cooperation, or structure conflict.
Infrastructure features in most major accounts of histories of Nation-State consoli-
dation and imperial extension, in war preparedness and in war logistics and targeting
or titanic fighting,
44
in resource extraction and in energy capture and transit,
45
in each
quantum step in economic globalisation,
46
in mass migrations and religious missions,
in the global scaling of finance and financialisation,
47
in the rapid scaling of global
digital economy companies and trade,
48
in projections of power and economy into air-
space and outer space, in the computer-system construction of AI and robots, and quite
formally in the heterogeneous but vast Belt and Road (yidai yilu) Initiative announced
by China’s leader in 2013 and embodied in the PRC Constitution soon after.
49
International law has by and large tracked these initiatives, embracing and enabling
most of them while in some cases providing a means to manage conflict and contesta-
tion and to coordinate competition and allocations of power and resource rights. As
some of these infrastructurally grounded and legally enabled projects have come
into question, struggling efforts are made to enunciate new international law with dif-
ferent collective governance, more far-reaching and participatory planning, and speci-
fic changes in some legalised understandings of contract, property, governance, public
interests and rights.
50
These efforts have some momentum for example in demands for
a rethinking of the extractive and climate-modifying premises of economic growth in
the anthropocene,
51
or in demands for reconsideration of massive data concentrations
or of biometrically structured controls and facial recognition and other AI.
52
But the
infrastructure-scale legal shifts have been very slight when compared to the scale of
the issues involved. In particular, much more could be done in collective representa-
tion and governance of infrastructures old and new, in far-sighted and more
44. Deborah Cowen, The Deadly Life of Logistics (University of Minnesota Press, St Paul
2014).
45. Timothy Mitchell, Pierre Charbonnier and Julien Vincent, ‘Étudier les Infrastructures pour
Ouvrir les Boîtes Noires Politiques: Entretien Avec Timothy Mitchell’(2018) 35 Tracés: Revue
de Sciences Humaines 209.
46. Richard Baldwin, The Great Convergence (Harvard UP, Cambridge MA 2016).
47. Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality
(Princeton UP, Princeton 2018).
48. Tung-Hui Hu, A Prehistory of the Cloud (MIT Press, Cambridge MA 2015); Nicole
Starosielski, The Undersea Network (DUP, Durham 2015).
49. Jonathan E Hillman, ‘Influence and Infrastructure: The Strategic Stakes of Foreign
Projects’(CSIS, Janurary 2019); Julien Chaisse and Mitsuo Matsushita, ‘China’s“Belt and
Road”Initiative: Mapping the World Trade Normative and Strategic Implications’(2018)
52(1) Journal of World Trade 163.
50. Kate Crawford and Vladan Joler, ‘Anatomy of an AI System: The Amazon Echo as an
Anatomical Map of Human Labor, Data and Planetary Resources’(Anatomy of AI, 2018)
<https://anatomyof.ai/> accessed 24 September 2019.
51. Timothy Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso, London
2011).
52. Setha Low and Mark Maguire (eds), Spaces of Security (NYU Press, New York 2019).
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participatory planning, in mapping out the routes of different paths before they are
chosen and inexorable path dependence and regulatory effects set in, in viable finan-
cial and data planning, and in layering, networking, maintaining, repurposing and
decommissioning infrastructures with holistic values and justice considerations to
the fore.
53
The examples just given are of infrastructure enabling and organising flows. But
infrastructure may also be designed to block or channel (the US–Mexico Border
wall/fence/gaps,
54
or Hadrian’s Wall), it may have the effect of constructing vulner-
able chokepoints in local or global flows,
55
and all over the world public discussion
of infrastructure is often about the non-designed obstructions, bottlenecks, overloading
and intermittencies of infrastructure.
56
The specialised literature on technological
dynamics took up the military metaphor of reverse salient –the areas where the other-
wise advancing front did not go forward, and perhaps receded, attracting intense com-
petition, innovation and perceptions of vulnerability.
57
Public policy and security
studies deployed a category of ‘critical infrastructure’and sub-categories such as
‘critical digital infrastructure’to focus attention and in some cases regulatory effort.
Conflicting priorities may impede the performance of infrastructure: plant engineers
operating digital platforms for electric power generation and distribution may resist
upgrades so as not to risk system stability, whereas the government and in-company
cybersecurity professionals demand very frequent upgrades and patches to address
new vulnerabilities to hackers and malware.
58
Some infrastructure goes unnoticed
by ordinary users until it goes wrong; other infrastructure is conspicuous and presented
to inspire awe or admiration or promise and imagination for a brighter future.
Infrastructure variously appeals to utilitarian and aesthetic sensibilities. Usually infra-
structure is regarded as built rather than (simply) natural, although the two often blend.
Of special importance is the futurity with which discussions of infrastructure are imbri-
cated. Thinking infrastructurally involves (at times) thinking forward.
That infrastructure can alter the practical experience and political impact of time
and of space has been apparent for millennia.
59
The celebration of this as new flow
infrastructure comes into operation, familiar to almost every modern era, was
53. Andrew Russell and Lee Vinsel, ‘Hail the Maintainers’(Aeon, 7 April 2016) <https://aeon.
co/essays/innovation-is-overvalued-maintenance-often-matters-more> accessed 24 September
2019. This is the manifesto paper of an intellectual movement, ‘The Maintainers’, focused on
the understated importance of the humdrum work of maintenance in technology and infrastruc-
ture (maintenance as opposed to glamorous innovation –wryly characterised as ‘the STS for the
1%’).
54. Beth Simmons, ‘Border Rules’(2019) 21(2) International Studies Review 256.
55. Ashley Carse, Jason Cons and Townsend Middleton (eds), Limn Issue 10: Chokepoints
(Limn 2018).
56. Caroline Melly, Bottleneck: Moving, Building, and Belonging in an African City
(University of Chicago Press, Chicago 2017), on embouteillage in Dakar, Senegal.
57. Thomas Parke Hughes, Networks of Power: Electrification in Western Society 1880–1930
(Johns Hopkins Press, Baltimore 1983) 79ff (see ch IV: ‘Reverse Salients and Critical
Problems’).
58. Aaron Clark-Ginsberg and Rebecca Slayton, ‘Regulating Risks Within Complex
Sociotechnical Systems: Evidence from Critical Infrastructure Cybersecurity Standards’
(2019) 46(3) Science and Public Policy 339.
59. I do not mean here to blur the disanalogies between time and space. Among the key attri-
butes of time are: extension, linearity, direction and transience. Space shares only one of these
attributes: extension. See Antony Galton, ‘Time Flies but Space Doesn’t: Limits to the
Spatialisation of Time’(2011) 43(3) Journal of Pragmatics 695.
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memorably conveyed in a noted 1837 US judicial decision on railroads, in which
Senator Maison lyrically opined:
[M]ore than any other mode of conveyance, they tend to annihilate distance, bringing in
effect places far distant near to each other; tending in their magic influence to the extension
of personal acquaintance, the enlargement of business relations, and cementing more firmly
the bond of fellowship and union between the inhabitants of the states.
60
Even more ample was the 1844 comment of an excited correspondent on the first week
of full operation of Samuel Morse’s experimental new telegraph between Baltimore
and Washington DC: ‘[t]ime and space has been completely annihilated’.
61
But the
implications of infrastructure for time are not captured by its familiar motifs as a trans-
port channel, a biopolitical project to produce human welfare, but also surveil, control
and discipline, or a symbol of the (modern) future being brought into the present.
Taking examples from Bengaluru, and also the long-delayed Narita Airport near
Tokyo, Akhil Gupta persuasively puts in question the temporality in which infrastruc-
ture is designed, constructed and inaugurated at a ribbon-cutting by politicians. He
accents instead the long-non-completed, the ‘ruins’of perpetual construction and deb-
ris, and the ruins of obsolete infrastructure (sometimes repurposed). Non-achieved or
uncompleted infrastructure is often linked to underlying property rights (legal or pro-
testing prevention of expropriation) or to finance problems; and ‘law reform’in many
countries has been about overcoming these.
62
In the same way, infrastructural space
may be corridors, enclaves, subterranean, celestial: quite frequently not aligned with
other political or juridical spaces,
63
and indeed these may be overlain on infrastructural
space in perplexing ways.
64
3 CONCLUSION
International law can itself be thought about as infrastructure. But it is an infrastructure
that has come to seem somewhat maladapted for the demands and the weight techno-
logical changes have put on it. For international lawyers among whom the 1990s North
60. Bloodgood v Mohawk and Hudson Railroad Company, 18 Wend 9 (1 December 1837) 48
(Court for the Correction of Errors of New York). He added: ‘[n]ext to the moral lever power of
the press, should be ranked the beneficial influence of railroads in their effects upon the vast and
increasing business relations of the nation, and the promoting, sustaining and perpetuating the
happiness, prosperity and liberty of the people’.
61. The Baltimore Sun (31 May 1844) as quoted in Rebecca J Rosen, ‘Time and Space has
been Completely Annihilated: Tech Writing from an Earlier Era’, The Atlantic (Washington
DC, 14 February 2012) <https://www.theatlantic.com/technology/archive/2012/02/time-and-
space-has-been-completely-annihilated/253103/> accessed 24 September 2019.
62. Akhil Gupta, ‘The Future in Ruins: Thoughts on the Temporality of Infrastructure’in
Nikhil Anand, Akhil Gupta and Hannah Appel (eds), The Promise of Infrastructure (DUP,
Durham 2018) 62.
63. Shannon Mattern, ‘Scaffolding, Hard and Soft: Critical and Generative Infrastructures’in
Jentery Sayers (ed), Routledge Companion to Media Studies and Digital Humanities (Routledge,
New York 2018) 318.
64. This is a major theme in China Mieville, The City and the City (Ballantine, New York
2009). See also Deborah Cowen, ‘The City and the City (and the City): Infrastructure in the
Breach’(Society + Space, October 2017) <http://societyandspace.org/2017/10/10/the-city-and-
the-city-and-the-city-infrastructure-in-the-breach/> accessed 24 September 2019.
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Atlantic era was a high-water mark of international institution-building, juridification,
international and national judicialisation, and increasingly sophisticated modalities for
compliance, enforcement and new norm-generation, the after-times can seem more
beleaguered than promising.
65
Many of those projects have stalled, in some respects
the directions of momentum have reversed, many prominent political leaders assert
values or engage in practices that contradict those embraced in the rhetoric of 1990s
liberalism, and international lawyers of that stripe have come to feel more marginal
in many places. A different concern, however, is that the matters and materials of tra-
ditional international law seem to be a smaller and smaller kernel (albeit still utterly
fundamental to ordering) of what is important in the present trajectories of extractive
capitalism and technological transformation. To put it a bit starkly: in proportional
terms, the domain of international law might seem to be shrinking. For the lugubrious
nostalgist, the quietist, or even the cheery but judicious counsel of ‘stay in your lane’,
this is simply an aspect of the universe to live with. If traditional international law and
its techniques have little or nothing very apposite to say about ecological calamity,
tech-enabled weaponised abuse of humanity and dignity, skewed distribution,
human cloning, gene editing, gene drives, artificial intelligence, robotics, or even
big-tech corporations and newer space activities, the lawyers might have nothing to
do but cast an anxious glance toward the natural scientists or plumbers or the geneti-
cists or the data scientists and hope they can do more. A different path, however, has
been scrabbled in the post-1990s. Lawyers have come to work with risk management
as much as constraint, deals as much as rules, nudges as much as sanctions, affor-
dances as much as fundamental rights, the urban as much as the State,
66
affect and
style as much as reason, uneven tempos and oddly layered spaces as much as tradi-
tional legal time and space, experimental governance as much as rigid specifications,
prototypes as much as plans. Fleur Johns has charted the last of these shifts in her
illuminating study of digitally enabled innovation which pursues the implementa-
tion of new pathways through prototypes rather than the high modernist planning
that James C Scott sought to pinion. The prototypes are diffused ‘through incre-
mental adoption and repetitive use rather than through reasoned persuasion’.
67
This style –which does not have the structured forms of new governance experi-
mentalism –displaces ordinary legal expectations of agency, responsibility and dur-
ability. The struggles of law and institutional action to address the tempo and style
of prototypes cast a reverse light. I propose that this light be used to illuminate a
path back to two characteristics which, while much derided, and often rightly,
were also hallmarks of some of the better contributions made by the traditional
international law of earlier eras –what might in optimistic mode be described as
the endowment of international law. These characteristics from the better part of
the endowment, which might be reinvigorated, are a slower tempo allowing for
deliberation (but by publics, not simply by governments and experts), and far-
sighted planning. The rise of ML/AI seems for now to move in entirely the opposite
direction –but the time for a humanly capacious and politically imaginative
65. Benedict Kingsbury, ‘Frontiers of Global Administrative Law in the 2020s’in Jason
Varuhas and Shona Wilson Stark (eds), The Frontiers of Public Law (Hart, Oxford 2019,
forthcoming).
66. Luis Eslava, Local Space, Global Life (CUP, Cambridge 2015).
67. Fleur Johns, ‘From Planning to Prototypes: New Ways of Seeing Like a State’(2019)
82(5) Modern Law Review 1, 21.
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contrariwise turn, even while fully engaging these technologies and infrastructures,
is now arriving.
68
Planning and thinking for the future is perhaps the element of ‘modernity’which is
most conspicuously gone from current politics and discourse.
69
Helping to restore
some organised futurity and collective planning to desperately evanescent political
time is perhaps among the biggest and most plausible contributions international
law mindsets might be adapted to make. Lawyers are somewhat conditioned to pro-
cesses of ex post or real time determinations in which the materials of the past, or
already established, condition thinking about the matters of the present. Even
counter-hegemonic projects in their daily work are more often about extricating the
present from the past, or reimagining or dismantling or compensating for some part
of the past and its effects which are experienced as oppressive or unjust. Oddly fatal-
istic strands in contemporary European thought on the left and on the right seem con-
tent to tear down existing institutions (deemed to be monuments to failed projects of
elite rule or technocracy or self-government destruction or market regulation or cul-
tural dilution), and to hope that something better will grow in the ruins, or that a
moment of refounding will reassert the national or popular constitutive power, or
that technology-enabled markets will flourish without much of the politics-blocking
regulation earlier Hayekians had believed was essential. Yet creative ideas and mass
forces favouring renewed and remade institutionalism and legal governance are also
strong if not yet very much unified in their vision and articulation. These are the
waves which seem likely to lift contemporary legal projects in much the same way
as the forward-looking legal projects of earlier eras were lifted. This does not in
any way mean that the next-generation legal projects will all be normatively attractive
or even well-conceived. The functions and roles of critique, contestation, and straight-
out leadership and courage will be as vital now as ever.
This is a time when it seems necessary not only to change academic formations and
knowledge bases and outlooks and demographics in our field, but also to add concepts
to them. With venerable concepts and refurbished concepts and some new concepts,
we can employ them as we think anew, to see what we might contribute (as well as
what we might not contribute). This is the kind of project today’s conference under-
takes, and I join wholeheartedly in its spirit and its struggles.
68. This point owes much to the ideas of Eyal Benvenisti and Joseph Weiler. The apposite
forms of regulation –and the structuring of moments for public deliberation –must be tailored
to the technology, and to its speed of change and rate of scaling.
69. I owe this point, and many other thoughts, to Andrew Hurrell. My thanks also to Sally
Engle Merry, Angelina Fisher, Fleur Johns, Nahuel Maisley, Paul Mertenskoetter, Thomas
Streinz, and collaborators in NYU’sIILJInfraRegProjectandintheNYUGuariniGlobal
Law and Tech initiative.
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