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A Journal of the Voyage from Apology to Utopia
Abstract
… fulfilment of my first ambition – to describe international law in a way that would resonate with practitioner experience – necessitated that I resist the pull of either excessive “formalism” or excessive policy-oriented “realism”. In the course of writing, however, I began to realise that this way of stating the problem also contained the seeds of its resolution … I needed to think about my own experience as far from idiosyncratic and to examine the contrast between “formalism” and “realism” as an incident of the standard experience of any international lawyer in the normal contexts of academy or practice.
Public debates in the language of international law have occurred across the 20th and 21st centuries and have produced a popular form of international law that matters for international practice. This book analyses the people who used international law and how they used it in debates over Australia's participation in the 2003 Iraq War, the Vietnam War and the First World War. It examines texts such as newspapers, parliamentary debates, public protests and other expressions of public opinion. It argues that these interventions produced a form of international law that shares a vocabulary and grammar with the expert forms of that language and distinct competences in order to be persuasive. This longer history also illustrates a move from the use of international legal language as part of collective justifications to the use of international law as an autonomous justification for state action.
Public debates in the language of international law have occurred across the 20th and 21st centuries and have produced a popular form of international law that matters for international practice. This book analyses the people who used international law and how they used it in debates over Australia's participation in the 2003 Iraq War, the Vietnam War and the First World War. It examines texts such as newspapers, parliamentary debates, public protests and other expressions of public opinion. It argues that these interventions produced a form of international law that shares a vocabulary and grammar with the expert forms of that language and distinct competences in order to be persuasive. This longer history also illustrates a move from the use of international legal language as part of collective justifications to the use of international law as an autonomous justification for state action.
This Article reads the work of Martti Koskenniemi—arguably the most significant international legal thinker of the post-Cold War era—as an exercise in (Lacanian) psychoanalysis. Excavating the links between Koskenniemi and French psychoanalyst Jacques Lacan, and analyzing the origins of those links in Koskenniemi's debt to the Harvard branch of the American Critical Legal Studies (CLS) movement, it argues that over almost thirty years Koskenniemi has employed psychoanalytic techniques to rebuild the self-confidence of international law(yers). The success of this confidence-building project explains the acclaim Koskenniemi's work enjoys. As international law's psychoanalyst he has defined the identity of the international lawyer and mapped the structure of international legal argument, stabilizing international law's present reality by synchronizing it with narratives of its past. Any attempt to destabilize that reality or depart from present structures into an alternative future must start from an analysis of Koskenniemi's methods and it is in this sense, and not out of a more pure interest in Koskenniemi's work, that this Article deconstructs Koskenniemi's oeuvre. It situates his method, reveals his choices, and explores their limits in an effort to develop (tentative) proposals for a “new” international law(yer) and an international legal future outside the structure that Koskenniemi has mapped so effectively and affectively.
There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).
This article explores the relationship between human rights and utopian thinking through three recurrent tropes: interdisciplinarity, time and the promise. Utopia, like human rights, is shaped by its interdisciplinary engagement with multiple fields of knowledge, by its invocation of the past, present and future as ways of addressing contemporary problems, and by a promissory language, often unfulfilled, of social change and betterment. These interconnected ideas suggest that an attention to the dialogue between utopian thought and human rights can open up new conceptual possibilities, even as those possibilities often fail, or are themselves partial.
Leander’s chapter argues that whitelists in commercial security are establishing and consolidating a rule of law marked by managerialism. It closely describes the significance of the mundane, seemingly innocuous whitelists. Whitelists have proliferated as part of governance through Codes of Conduct, Best Practices, Benchmarks and Standards. The chapter shows that these lists stake out regulatory space, establish regulatory relations and prioritize potential (they do work). In the process, they contribute to a regulatory topology where evidence is devalued, conventional legal expertise and criticism devalued (they leave a topological imprint). Together, these momentous shifts skew the rule of law towards managerialism and enshrine the managerialism already there. They mark a shift in the quality of the rule of law but do not necessarily weaken it.
International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well received, perhaps in part, because it was not well understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the 1980s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim about how the critics wanted to show that international law had never been anything but politics, and that it always would be. In the view of this essay, both of these claims about international legal structuralism were wrong, and they are still wrong today. For despite the tendency to think of it as a cover for postmodern nihilism or relentless deconstruction or both, legal structuralism offers international theorists an enriching and edifying method for rethinking the relation between law and politics on the one hand, and law and history on the other. It is in the effort to carry a brief for a reawakened legal structuralism that the essay brings focus to some of the early works of Koskenniemi and Kennedy, identifies the semiotic foundations of that work, and ultimately suggests the possibility of a second generation of international legal structuralism.
In his Philosophical Investigations, Ludwig Wittgenstein declared: ‘We must do away with all explanation, and description alone must take its place.’ Michel Foucault in turn repeatedly referred to his method of study as description, arguing that the role of philosophy is not to reveal what is hidden, but rather to make us see what is seen. This essay suggests why the turn to description as a mode of legal writing might be a productive move at this time.
Focusing particularly on the moment of decolonization, in this article I look at the paradoxes attending the endurance of the statist framework in conceptualizing territorial self-determination as well as in curtailing it. A range of protagonists in the decolonization drama, from the departing colonial powers to Third World nationalists to international jurists, have all clung to the modern nation-state as the means through which self-determination is to be realized. Against the enduring hold of the state, this article tries to foreground the ways in which the statist paradigm prematurely forecloses the self-determination options available to the nomadic communities of Western Sahara, and cramps debates about boundary and uti
possidetis in Burkina Faso and Mali. In this vein the received categories of the territorially bounded state reach into the postcolonial imagination to discipline, codify, and produce ‘independence’. At the same time, however, the difficulties confronted by the boundary delimitation process in Burkina Faso and Mali suggest that the reach of the territorially bounded state is limited. It is limited by the sub-national and transnational complexities of people's lives, but also by the indeterminacy of cartographic documentation and the complexities of colonial and postcolonial bureaucracies. Rather, it is argued that international law has a contradictory relationship with decolonization, desiring the self-determination of the former colonies, while also harnessing the decolonization project to fulfil its own desires, ‘to reproduce the law's assumptions regarding the ends of freedom’. 1
This book, first published in 1987 and considered a classic in the field of cultural and historical geography, examines the poetic constitution of colonial society. Through a far-reaching exploration of Australia’s mapping, narrative description, early urbanism, and bush mythology, this book exposes the mythopoetic mechanisms of empire. A powerfully written account of the ways in which language, history, and geography influenced the territorial theater of nineteenth-century imperialism, the book is also a call to think, write, and live differently.
International law was born from the impulse to 'civilize' late nineteenth-century attitudes towards race and society, argues Martti Koskenniemi in this extensive study of the rise and fall of modern international law. In a work of wide-ranging intellectual scope, now available for the first time in paperback, Koskenniemi traces the emergence of a liberal sensibility relating to international matters in the late nineteenth century, and its subsequent decline after the Second World War. He combines legal analysis, historical and political critique and semi-biographical studies of key figures (including Hans Kelsen, Hersch Lauterpacht, Carl Schmitt and Hans Morgenthau); he also considers the role of crucial institutions (the Institut de droit international, the League of Nations). His discussion of legal and political realism at American law schools ends in a critique of post-1960 'instrumentalism'. This book provides a unique reflection on the possibility of critical international law today.
Book synopsis: 'Postmodern Jurisprudence' brings together poststructuralism and legal theory. Contemporary legal theory is committed both to the major truth telling Enlightenment claims of clarity, logic, impartiality and analytical rigour, and to the normative demands of liberal equality, fairness and justice. But through a close reading of the leading texts of contemporary legal philosophy (Dworkin, Finnis, Fish, Norris, Goodrich, Jackson and recent Marxist theories of law), "Postmodern Jurisprudence" demonstrates that modernist discourses of law contain the unsettling thematics of postmodernity which these texts attempt to deny. Furthermore, by using an array of textual and contextual techniques in the reading of conventional legal works, such as law reports, "Postmodern Jurisprudence" points towards overcoming the impasse in the interpretation debate. The book concludes with an analysis around a piece of 19th-century literature which is approached via the dynamics of postmodern copyright law.
Eighteenth-century British travellers have been much talked about in recent decades. The journal records of, among others, merchants, explorers, pirates, ordinary seamen, press-gang victims, slaves, slave dealers, passengers, indentured servants and convicts have provided a rich archive for investigating the discursive character of colonial relationships and of imperial expansion in the period of Britain’s rise to global commercial pre-eminence. Many of these studies have shown how metropolitan identities are shaped by exchanges, observations, misperceptions or acts of resistance that take place in ‘peripheral’ regions of the globe. They have argued that imperialism has not simply been a matter of a powerful culture exploiting, eradicating or transforming a less powerful one, but rather that cultural and political transformations take place on both sides of the colonial equation. Travellers — those who literally stand between cultures and places — can therefore be seen either as agents of or as antagonists to the technologies of imperialism. Sometimes they assist and sometimes they confound the commercial aspirations of colonizing states. They can belong to what Paul Gilroy, following Deleuze and Guattari, has identified as a ‘rhizomorphous’ transnational community, as they form subterranean lines of connection and modes of collective organization that defy the social hierarchies determined both by states and by the world economy.
Drawing from a range of materials, Martti Koskenniemi demonstrates how international law becomes vulnerable to the contrasting criticisms of being either an irrelevant moralist Utopia or a manipulable façade for State interests. He examines the conflicts inherent in international law--sources, sovereignty, ‘custom’ and ‘world order--and shows how legal discourse about such subjects can be described in terms of a small number of argumentative rules. Originally published in English in Finland in 1989, this reissue includes a newly written Epilogue by the author.
As I started to think about how to respond to your kind invitation to participate in the symposium on method in international law, and what to write to the readers of the Journal, I soon noticed that it was impossible for me to think about my—or indeed anybody’s—“method” in the way suggested by the symposium format. This was only in part because I felt that your (and sometimes others’) classification of my work as representative of something called “critical legal studies” failed to make sense of large chunks of it whose labeling as “CLS” might seem an insult to those in the American legal academy who had organized themselves in the 1970s and early 1980s under that banner. You may, of course, have asked me to write about “CLS” in international law irrespectively of whether I was a true representative of its method (whatever that method might be). Perhaps I was only asked to explain how people generally identified as “critics” went about writing as they did. But I felt wholly unqualified to undertake such a task. Dozens of academic studies had been published on the structure, history and ideology of critical legal studies in the United States and elsewhere. Although that material is interesting, and often of high academic quality, little of it describes the work of people in our field sometimes associated with critical legal studies—but more commonly classed under the label of “new approaches to international law.“1 In fact, new writing in the field was so heterogeneous, self-reflective and sometimes outright ironic that the conventions of academic analysis about “method” would inevitably fail to articulate its reality.
Introduction 1. Exploring culture: the formation and fragmentation of the explorer 2. Picturesque visions: controlling the seen 3. Maps and their cultural constructedness 4. Seeing the Aborigines put in their place 5. The bosom of unknown lands Conclusion.
A criminal investigation arising from a break-in at the premises of a funeral director indicated that sexual interference with several corpses had taken place. The forensic issues regarding consent to examine the bodies and the nature of the crimes committed, with consideration of international law in this field, are discussed. Necrophilia is an issue that has not been the subject of legal statute in the United Kingdom to date, although this issue is currently under consideration by the Home Office in proposals to reform the law on sexual offences
International Law and the South as a Legal Space
- Anne Orford
This Cannot Be How the World Was Meant to Be” 16
The politics of international law is what competent international lawyers do. And competence is the ability to use grammar in order to generate meanings by doing things in argument
- Ibid
On this sense of the responsibility of the decision-maker, see further Orford Anne , A Jurisprudence of the Limit