Published online by Cambridge University Press: 13 April 2016
Third World Approaches to International Law (TWAIL) scholarship provides a trenchant critique of the contemporary international law regime, using concrete historical and cultural evidence to demonstrate that the central doctrines of international law are highly Eurocentric and, therefore, not representative of the values and beliefs of a large portion of the world’s population. Nevertheless, there is almost no recognition of TWAIL’s intellectual contribution in mainstream international law scholarship. It is only in rare cases that mainstream scholars make the effort to directly respond to Twailian critiques. And in these rare cases, TWAIL is positioned as just another “radically critical” post-modern approach to international law. The marginalization of TWAIL scholarship is frustratingly counterproductive, as recent developments in the international order offer unparalleled challenges for populations in the South. Further, Southern perspectives are conspicuously absent from the mainstream international law discourse. TWAIL seeks to represent marginalized world-views and incorporate them into this discourse. My project is to reinterpret the insights of TWAIL so as to make them more palatable to mainstream scholars with modernist theoretical commitments. I will argue that many TWAIL scholars should be understood to subscribe to the same methodological commitments as “naturalized epistemologists” because they are interested in the causes of belief-claims, prioritizing an etiological examination of international law doctrine and scholarship over substantive analytical critique. More specifically, TWAIL promotes a suspicious stance towards belief-claims that have problematic, hidden, and/or misrepresented foundations. I will conclude that TWAIL’s critique of international law is most reminiscent of a “hermeneutics of suspicion,” which is the interpretive approach famously embraced by Marx, Nietzsche, and Freud. Such an approach, while undeniably critical, falls squarely within the modernist philosophical tradition. According to TWAIL, practitioners and scholars of international law should engage in self-reflection and critically examine the epistemological foundations of their beliefs and doctrinal claims. If such practitioners and scholars agree that international law should be based on intellectual and moral commitments that reflect its global subject matter and not just its European history, then there is significant space for the insights of TWAIL in mainstream scholarship.
1. My use of the term “mainstream international law scholars” will be a sort of conceptual catch-all to describe various academics who advocate methodological approaches that have been, and still are, influential in the discourse surrounding international law creation and reform. Of course, these scholars subscribe to a broad spectrum of theoretical schools, and so my taxonomy obviously constitutes a gross overgeneralization. Sundhya Pahuja is wary of the tendency to “construct a straw man called ‘mainstream international law’, and then proceed to touch an analytical torch to it.” See Pahuja, Sundhya, “Review Essay: Power and the Rule of Law in the Global Context” (2004) 28 Melbourne U. L.R. 232 Google Scholar at 233-34. If there is one characteristic that links the commitments of mainstream scholars it is likely the fact that they generally see international law as a tool for positive change and not an op Pressive institution. Some of the theoretical schools that I have in mind when I speak of mainstream scholarship include: 1) positivism (committed to describing law as it is and primarily concerned with state actors, which are the subjects of international law); 2) the New Haven School (a policy-oriented perspective that is more interested in what international actors actually do than in the formal rules of international law); 3) international legal process (committed to understanding how international law actually works; that is, how it is used by policy makers); and 4) international relations theory (a set of political science theories that, when applied to international law, do not attempt to answer doctrinal questions but instead attempt to explain political behaviour using a theoretical lens—often a “realist” one). For a detailed and comparative account of these mainstream schools (as well as other critical schools) of international law see the American Journal of International Law’s “Symposium on Method in International Law—Appraising the Methods of International Law: A Prospectus for Readers” (1999) 93 Am. J. Int’l L. 291 at 291-423 (edited by Anne-Marie Slaughter & Steven R. Ratner) [“Symposium on Method”]. James Gathii describes mainstream scholarship as the “liberal/conservative consensus in international law,” which he argues “constructs the legal framework that is consistent with the hegemonic interests of the industrialized world.” See Gathii, James Thuo, “Rejoinder: Twailing International Law” (2000) 98 Mich. L. Rev. 2066 CrossRefGoogle Scholar at 2067 [Gathii, “Rejoinder”].
2. NAIL began as a formal academic movement in the 1980s at Harvard Law School. It has since branched out into a variety of theoretical approaches that are only similar because of their critical, alternative, and oppositional perspectives of international law and mainstream scholarship. For an overview of NAILs development see notes 53-61 below and the accompanying text. Two of the foundational NAIL works are Kennedy, David, International Legal Structures (Baden Baden: Nomos, 1987)Google Scholar [Kennedy, International Legal Structures] and Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005)Google Scholar (originally published in 1989) [Koskenniemi, From Apology to Utopia]. For a bibliography of some of the leading NAIL publications see Kennedy, David & Tennant, Chris, “New Approaches to International Law: A Bibliography” (1994) 35 Harv. Int’l L. J. 417 Google Scholar [Kennedy & Tennant, “Bibliography”].
3. Gathii, “Rejoinder,” supra note 1 at 2067. Gathii argues that Brad Roth effectively denies him a voice in mainstream international law scholarship when Roth claims that his work is “far more effectively anti-colonial than … [Gathii’s] critique of it” (ibid.).
4. I concede that I deal superficially with post-modern theory, thus creating a caricature of it. I could be accused of engaging in a straw man fallacy—easily striking down a falsely constructed opponent. It is important to note, however, that my analysis is not intended as an attack on post-modern theory. Instead it is designed to recover TWAIL scholarship from mainstream scholars who create a caricature of both TWAIL and post-modern theory and therefore, unjustifiably dismiss TWAIL scholarship outright.
5. See, e.g., Roth, Brad R., “Governmental Illegitimacy and Neocolonialism: Response to Review by James Thuo Gathii” (2000) 98 Mich. L. Rev. 2056 CrossRefGoogle Scholar at 2057; Simma, Bruno & Paulus, Andreas L., “The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View” (1999) 93 Am. J. Int’l L. 302 CrossRefGoogle Scholar at 306; and Dunoff, Jeffrey L. & Trachtman, Joel P., “The Law and Economics of Humanitarian Law Violations in Internal Conflict” (1999) 93 Am. J. Int’l L. 394 CrossRefGoogle Scholar at 408. The dialogue between Roth and Gathii is a paradigmatic example of the sort of methodological discord between NAIL/TWAIL and mainstream international law scholarship.
6. Purvis, Nigel, “Critical Legal Studies in Public International Law” (1991) 32 Harv. Int’l L. J. 81 at 88 Google Scholar.
7. Kennedy, David, “When Renewal Repeats: Thinking Against the Box” (2000) 32 Int’l L. & Pol. 335 Google Scholar at 489-90 [Kennedy, “When Renewal Repeats”].
8. TWAIL is primarily concerned with promoting a Southern perspective(s) of international law. I provide a fairly detailed overview of TWAIL scholarship below in the first section of this paper, beginning at approximately note 29. TWAIL scholars hold a critical, oppositional, and suspicious stance towards international law. As well, as I explain below, Third World perspectives are not themselves new and actually predate the development of NAIL.
9. Roth, supra note 5, a reply to a critical book review by Gathii, is one of the few examples of this attempt to respond to TWAIL scholarship. Gathii is appreciative of this rare chance for dialogue and states: “Twailing international law will surely continue the dialectic that my Review of Roth’s book provoked. There is no better way of developing international legal theory, or even addressing substantive questions of international justice, than through such a dialogue. That my Review has led to this dialogue, as I intended, is therefore a welcome result.” See Gathii, “Rejoinder,” supra note 1 at 2071.
10. Roth, ibid.
11. I provide a brief overview of the development of CLS below in the text accompanying notes 42-52. For a detailed account of CLS and its leading scholars see Hutchinson, Allan C. & Monahan, Patrick J., “Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought” (1984) 36 Stan. L. Rev. 199.CrossRefGoogle Scholar
12. See, e.g., Mutua, Makau, “What is TWAIL?” (2000) 94 Proc. Am. Soc. Int’l L. 31 Google Scholar at 31 [Mutua, “What is TWAIL?”]; Fidler, David P., “Revolt Against or From Within the West? TWAIL, the Developing World and the Future Direction of International Law” (2003) 2 Chinese J. Int’l L. 29 at 31CrossRefGoogle Scholar; Gathii, James Thuo, “Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy”, Book Review of Governmental Illegitimacy in International Relations by Roth, Brad R. (2000) 98 Mich. L. Rev. 1996 CrossRefGoogle Scholar at 1998 [Gathii, “Neoliberalism”].
13. Roth, supra note 5.
14. See, e.g., Leiter, Brian, “Why Quine is Not a Postmodernist” (1996-1997) 50 S.M.U. L. Rev. 1739 Google Scholar; Leiter, Brian, “Rethinking Legal Realism: Toward a Naturalized Jurisprudence” (1997) 76 Tex. L. Rev. 267 Google Scholar at 271-75 [Leiter, “Rethinking Legal Realism”]; Sokal, Alan, “A Physicist Experiments with Cultural Studies” (1996) Lingua Franca 62 Google Scholar; and Deryck Beyleveld & Brownsword, Roger, Law as a Moral Judgment (London: Sweet & Maxwell, 1986)Google Scholar. For a more sympathetic account of post-modern theory see Duxbury, Neil, “Post-Modern Jurisprudence and its Discontents” (1991) 11 Oxford J. Legal Stud. 589 CrossRefGoogle Scholar. Duxbury’s opening sentence is revealing: “When, recently, a colleague noticed the book which provides the occasion for this essay [Anthony Carty’s Post-Modern Law, infra note 84] on a shelf in the reviewer’s office, she asked if it was intended as some kind of joke” (ibid. at 589).
15. Many TWAIL scholars speak in terms of a South-North dichotomy. See, e.g., Mutua, “What is TWAIL?,” supra note 12 at 31; and Antony Anghie & Chimni, B.S., “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2 Chinese J. Int’l L. 77 Google Scholar at 82. As such, I will use the terms “the South” and “the North” throughout my analysis to refer to the socio-economic and political divide between the wealthy states (generally in the Northern Hemisphere) and the poor, Third World states (generally in the Southern Hemisphere). See, e.g., Adams, Nassau A., Worlds Apart: The North-South Divide and the International System (London: Zed Books, 1993)Google Scholar. Obviously, this division between north and south is inexact as there are relatively poor countries in the North and relatively wealthy countries in the South. It is worth noting though that the South-North divide is not so much a geographical distinction as an economic and political one. In this sense, there is a socio-economic “South” within almost every Northern state.
16. See Hobsbawm, Eric, Age of Extremes: The Short Twentieth Century 1914-1991 (London: Michael Joseph, 1994)Google Scholar, ch. 7 [Hobsbawm, Age of Extremes].
17. See, e.g., Anghie, Antony, “The War on Terror and Iraq in Historical Perspective” (2005) 43 Osgoode Hall L. J. 45 Google Scholar [Anghie, “The War on Terror”]; Abi-Saab, Georges, “The Proper Role of International Law in Combating Terrorism” (2002) 1 Chinese J. Int’l L. 305 CrossRefGoogle Scholar; Baxi, Upendra, “The ‘War on Terror’ and the ‘War of Terror’: Nomadic Multitudes, Aggressive Incumbents, and the ‘New’ International Law” (2005) 43 Osgoode Hall L. J. 7.Google Scholar
18. Baxi, ibid.; Anghie, ibid.;W. Reisman, Michael, “The Manley O. Hudson Lecture: Why Regime Change is (Almost Always) a Bad Idea” (2004) 98 Am. J. Int’l L. 516 CrossRefGoogle Scholar; Hippel, Karin von, Democracy by Force: U.S. Military Intervention in the post-Cold War World (Cambridge: Cambridge University Press, 2000)Google Scholar; and Sifris, Ronli, “Operation Iraqi Freedom: United States v Iraq—The Legality of the War” (2003) 4 Melb. J. Int’l L. 521.Google Scholar
19. See Easterly, William, The Elusive Quest for Growth: Economists’ Adventures and Misadventures in the Tropics (Cambridge, MA: MIT Press, 2001)Google Scholar; Davis, Kevin & Trebilcock, Michael J., “Legal Reforms and Development” (2001) 22 Third World Q. 21 CrossRefGoogle Scholar; and Fleisig, Heywood, “Secured Transactions: The Power of Collateral” (1996) 33 Fin. & Dev. 44 Google Scholar. But see Anghie, Antony, “Time Present and Time Past: Globalization, International Financial Institutions, and the Third World” (2000) 32 N.Y.U. J. Int’l L. & Pol. 243 Google Scholar; and Frédérique Apffel Margini & Margini, Stephen A., eds., Dominating Knowledge: Development, Culture and Resistance (Oxford: Clarendon Press, 1990).Google Scholar
20. Baxi, supra note 17; and Anghie, “The War on Terror,” supra note 17.
21. See, e.g., Gramsci, Antonio, Selections from the Prison Notebooks, trans. by Hoare, Quintin (New York: International Publishers, 1971)Google Scholar; Guha, Ranajit, ed., Subaltern Studies: Writings on South Asian History and Society Volumes I-VI (New York: Oxford University Press, 1982–1989)Google Scholar; and Shahid Amin & Chakrabarty, Dipesh, eds., Subaltern Studies: Writings on South Asian History and Society Volume IX (Oxford: Oxford University Press, 1997)Google Scholar. But see Spivak, Gayatri, “Can the Subaltern Speak?” in Nelson, Cary & Grossberg, Lawrence, eds., Marxism and the Interpretation of Culture (Chicago: University of Illinois Press, 1988) 271.CrossRefGoogle Scholar
22. Mutua, “What is TWAIL?,” supra note 12 at 37.
23. My analysis is not intended as a critique or revision of TWAIL methodology. There are important historical reasons for TWAIL’s theoretical and political approach to international law. I will attempt to avoid distorting the aim of TWAIL or undermining its theoretical and political commitments.
24. Naturalized epistemologists contend, roughly, as we shall see below, that a priori knowledge-claims, if valid at all, must be subject to the critique of a posteriori evidence. Paul Moser explains that “[a] posteriori knowledge is widely regarded as knowledge that depends for its supporting ground on some specific sensory or perceptual content. In contrast, a priori knowledge is widely regarded as knowledge that does not depend for its supporting ground on such experiential content. The epistemological tradition stemming from Immanuel Kant proposes that the supporting ground for a priori knowledge comes solely from purely intellectual processes called ‘pure reason’ or ‘pure understanding.’” See Paul K. Moser, “Introduction” in Moser, Paul K., ed., The Oxford Handbook of Epistemology (Oxford: Oxford University Press, 2002) 3 CrossRefGoogle Scholar at 3-4.
25. Mutua, for example, uses the unequivocal heading “TWAIL is Suspicious of Universal Creeds and Truths” in his description of TWAIL scholarship. See Mutua, “What is TWAIL?,” supra note 12 at 37 [emphasis in original].
26. Ricoeur, Paul, Freud and Philosophy: An Essay on Interpretation, trans. by Savage, Denis (New Haven, CN: Yale University Press, 1970) at 32 Google Scholar [Ricoeur, Freud and Philosophy].
27. Moser, Paul K. & vander Nat, Arnold, Human Knowledge: Classical and Contemporary Approaches, 3rd ed. (Oxford: Oxford University Press, 2002).Google Scholar
28. Of course, TWAIL scholars already defend the importance of their mainstream relevancy and have sought to expand their space within international law scholarship. See Gathii, “Rejoinder,” supra note 1 at 2071.
29. But see Anghie and Chimni who state that to “see TWAIL as a product or subsidiary of these Northern schools would be to further the familiar pattern that all knowledge and theory—including TWAIL—originates in the North.” See Anghie & Chimni, supra note 15 at 87.
30. Anghie and Chimni contend that “TWAIL, while using analytical tools that are also part of the arsenals of various approaches, represents a distinctive approach to international law.” Ibid. at 102.
31. In the context of mainstream reactions to NAIL scholarship in the 1990s, David Kennedy states: “Mainstream authors tended to assimilate us all to whatever they imagined ‘critical legal studies’ or ‘feminism’ to have been in other legal fields. We were variously thought to be policy types, or Marxists, or Grotian eclectics—people would repeatedly interpret our work as if it had set out to respond to the field’s enduring questions in the available lexicon.” See Kennedy, “When Renewal Repeats,” supra note 7 at 484-85.
32. Anghie and Chimni lament the exclusion of a TWAIL perspective from the American Journal of International Law’s “Symposium on Method in International Law.” See Anghie & Chimni, supra note 15. Also see “Symposium on Method,” supra note 1. Anghie and Chimni argue that TWAIL “is certainly as much a ‘method’ as feminism, critical legal studies (CLS), international relations/international law (IR/IL), and even legal process.” They further contend that mainstream scholarship, “when it is not generally uncomprehending of TWAIL’s history and its aims, seeks to incorporate TWAIL into a familiar geography of alliances and rivalries” (ibid. at 77, 87). Their claim seems apt considering that, in a reply to a letter critiquing the omission of distinctly post-colonial perspectives from the “Symposium on Method,” the editors of the symposium state: “We concede … that our symposium should have included an analysis from a postcolonial perspective, however the particular method is defined. Ours was an error of ignorance rather than deliberate exclusion. We did not see postcolonialism as a distinct “method,” or at least as one distinct from critical legal studies. See “Correspondence” (2000) 94 Am. J. Int’l L. 99 at 101 Google Scholar [emphasis added].
33. According to Gathii, TWAIL’s vision statement was as follows: “We are a network of scholars engaged in international legal studies, and particularly interested in the challenges and opportunities facing ‘third world’ peoples in the new world order. We understand the historical scope and agenda of the dominant voice of international law and scholarship as having participated in, and legitimated global processes of marginalization and domination that impact on the lives and struggles of Third World peoples.” Gathii states that the drafters of this vision statement were “Bhupinder Chimni, James Gathii, Vasuki Nesiah, Elchi Nworojee, Celestine Nyamu, Balakrishan Rajagopal, and Hani Sayed.” See Gathii, James Thuo, “Alternative and Critical: The Contribution of Research and Scholarship on Developing Countries to International Legal Theory” (2000) 41 Harv. Int’l L. J. 263 Google Scholar at 273, n. 46 [Gathii “Alternative and Critical”]. TWAIL scholarship is still thriving. The most recent TWAIL conference, called TWAIL III, was organized by Gathii and held at Albany Law School in Albany, New York on April 20 and 21, 2007. Speakers included David Kennedy, Makau Mutua, and Vasuki Nesiah. It is interesting to note that in the conference materials TWAIL stands for “Third World and International Law” and not “Third World Approaches to International Law.” For the purposes of the TWAIL III conference, “Third World” is defined as “a contingent and shifting space of engagement and interaction of differences that are irreconcilable sometimes, and overlapping and reinforcing in others.” See Albany Law School, “The Third World and International Law Conference: TWAIL III,” online: Albany Law School http://www.albanylaw.edu/twail/.
34. Third World voices in academia predated the TWAIL conference of 1997. There are numerous foundational works, and the following are just a small sample: Frederick E. Snyder & Sathirathai, Surakiart, Third World Attitudes Toward International Law: An Introduction (Hingham, MA: Kluwer, 1987)Google Scholar; Sinha, S. Prakash, New Nations and the Law of Nations (Leyden: A. W Sijthoff, 1967)Google Scholar; and Mohammed Bedjaoui, Towards a New International Economic Order (United Nations Educational, Scientific and Cultural|Organization, 1979). Also see Anghie, Antony, “What is TWAIL: Comment” (2000) 94 Proc. Am. Soc. Int’l L. 39 Google Scholar. Anghie understands TWAIL as a continuation of the work of Third World scholars from the past, stating: “the work of contemporary TWAIL scholars builds on and develops the work done by pioneering third world jurists” (ibid. at 39). Anghie and Chimni distinguish between TWAIL I and TWAIL II scholarship. TWAIL I can be understood as Third World scholarship during the mid-twentieth century. See Anghie & Chimni, supra note 15 at 79-82.
35. On the principles proclaimed in Bandung see Mickelson, Karin, “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1997-1998) 16 Wis. Int’l L. J. 353 Google Scholar at 357, n. 18; Mutua, “What is TWAIL?,” supra note 12 at 31. The attending states agreed on a declaration outlining Afro-Asian policy regarding involvement in international issues and, specifically, the cold war. See Choucri, Nazli, “The Nonalignment of Afro-Asian States: Policy, Perception, and Behaviour” (1969) 2 Canadian J. Pol. Sci. 1 CrossRefGoogle Scholar, which provides an overview of the communiqués and policies set out at Bandung. Mutua considers the Bandung Conference to be “the symbolic birthplace of TWAIL” (ibid.). Twenty-five African and Asian states attended the Bandung Conference with the intention of fostering cooperation among the newly decolonized states. Nevertheless, it is important to note that the Bandung Conference was not the first conference involving the new Afro-Asian states. For example, the Asian Relations Conference was held in New Delhi in 1947, and was designed to foster a concrete and distinctly Asian approach to various international issues. Several South and Southeast Asian countries met at Bagio in 1950 to address regional problems and to promote alignment with the anti-Communist states (this initiative was unsuccessful). As well, the leaders of five South Asian countries met at Colombo in 1954 to address Pressing political concerns in the region. The Bogor Conference of 1954 was important for confirming the plan (addressed in a preliminary manner by the leaders in Colombo) to hold a broad-based Afro-Asian conference (which became the Bandung Conference). On the various conferences preceding Bandung see Triska, Jan F. & Koch, Jr., Howard E., “Asian-African Coalition and International Organization: Third Force or Collective Impotence?” (1959) 21 Rev. Pol. 417 CrossRefGoogle Scholar at 440-41.
36. See Choucri, ibid. at 4. The Non-Aligned Movement was centrally concerned with political issues concerning Third World states. The term “Non-Aligned” was chosen to reflect the neutrality of the Afro-Asian states and their refusal to align politically with either the Communist or Western powers. See Choucri, Nazli, “The Perceptual Base of Nonalignment” (1969) 13 J. Conflict Res. 57 CrossRefGoogle Scholar. By contrast, the Group of 77 (G77), which emerged during the same period as the Non-Aligned|Movement, was centrally concerned with economic issues. The membership base of the G77 was much broader than that of the Non-Aligned Movement and included Latin American states.
37. “Trois mondes, une planète” L’Observateur (14 August 1952) 5. The exact etymology of the term “Third World” remains somewhat controversial. William Safire, for example, has held that the term was first used by Charles de Gaulle. See Safire, William, “Political Petromania vs. Petrophobia,” Houston Chronicle (July 12, 1992) at 6 Google Scholar. Former Singapore prime minister Lee Kuan Yew has also been credited with coining the term. See M.R. Franks, “Sovereignty, Statehood and Self-Determination”, Book Review of Claims to Statehood in International Law by Nii Lante Wallace-Bruce (1994-1995) 15 Nw J. Int’l L. & Bus. 231 at 231. Nevertheless, Sauvy is still most frequently credited with coining the term. See, e.g., Mickelson, supra note 35 at 356, n. 15; Franks (ibid. at 231); Kurt C. Campbell & Weiss, Thomas G., “The Third World in the Wake of Eastern Europe” (1991) 14 Wash. Q. 107 Google Scholar at 107, n. 1; Kraska, James, “Sustainable Development Is Security: The Role of Transboundary River Agreements as a Confidence Building Measure (CBM) in South Asia” (2003) 28 Yale J. Int’l L. 465 Google Scholar at 484, n. 112; and Greene, Bernard W., “Toward a Definition of the Term Third World” (1980) 1 B.C. Third World L. J. 13 Google Scholar at 16. The term “Third World” is actually a direct translation of the French term “tiers monde”; however, Sauvy adapted this from the term “tiers état,” which referred to the third estate or commoners of France (ibid.).
38. Mutua, “What is TWAIL?,” supra note 12 at 31.
40. Hobsbawm, Eric, The Age of Empire, 1875-1914 (New York: Vintage Books, 1989)Google Scholar. Also see Eric Hobsbawm, “End of Empires” in Hobsbawm, Age of Extremes, supra note 16, ch. 7. Hobsbawm has also written on the Third World following the decolonization process of the mid-twentieth century. See Eric Hobsbawm, “The Third World” in Hobsbawm, Age of Extremes, supra note 16, ch. 12. Hobsbawn states that the “twentieth-century history of the non-Western or more exactly non-north-Western world is … essentially determined by its relations with the countries which had established themselves in the nineteenth century as the lords of human kind” (“End of Empires,” ibid. at 200).
41. Mutua, “What is TWAIL?,” supra note 12 at 31.
42. See Anghie & Chimni, supra note 15.
43. In the context of this historical thread I refer to the second generation of TWAIL scholarship or what Anghie and Chimni call “TWAIL II.” See ibid. at 79. They state that “TWAIL II has attempted … to further develop the analytical tools necessary to deal with Third World realities in a continuously shifting international setting” and has “focused more explicitly on theoretical inquiry than TWAIL I” (ibid. at 82, 84).
44. Gathii writes that TWAIL scholarship “is in dialogue with CRT, critical race feminism, Lat-Crit Theory (Latina/o Critical Legal Theory), NAIL, and Black-Crit Theory (Black Critical Legal Theory), among others.” Each of these schools is an offshoot or contemporary of CLS scholarship. See Gathii, “Alternative and Critical,” supra note 33 at 274. Also see Elizabeth M. Iglesias, “Out of the Shadow: Marking Intersections In and Between Asian Pacific American Critical Legal Scholarship and Latina/o Critical Legal Theory” (1998-1999) 40 B.C. L. Rev. 349; Mutua, “What is TWAIL?,” supra note 12 at 38; Anghie & Chimni, supra note 15 at 85, n. 18. But consider Lama Abu-Odeh who worries that “Third World ‘issues’ … [tend] to be relegated to the concept of ‘multi-culturalism’ or ‘minorities,’ be they racial or ethnic. Both concepts, I feel, are tools of representation used to understand Western or European societies, rather than those lying outside their boundaries.” See Kennedy & Tennant, “Bibliography,” supra note 2 at 421-22.
45. See, e.g., Roth, supra note 5 at 2056-58.
46. The CLS movement was formally established in 1977, with the intention of opposing the Law and Society Association. See Hutchinson & Monahan, supra note 11 at 200. According to Hutchinson and Monahan, the leaders of the CLS movement were “Peter Gabel, Morton Horwitz, Duncan Kennedy, Karl Klare, Mark Tushnet, and Roberto Unger” (ibid. at 201). See especially Roberto Unger, Mangabeira, Law in Modern Society: Toward a Criticism of Social Theory (New York: Free Press, 1976).Google Scholar
47. Hutchinson & Monahan, ibid. at 200.
48. The term “Frankfurt School” is often used interchangeably with the term “critical theory.” The Frankfurt School was a group of German theorists from the Institute for Social Research, influenced by the philosophies of Hegel and Marx, who engaged in a deep critique of modernity and especially positivist social theory. Other influential thinkers include Karl Mannheim, Antonio Gramsci, Georg Lukacs, Michel Foucault, and Jacques Derrida. For an overview of the evolution of the Frankfurt School see David Kennedy, “Critical Theory, Structuralism and Contemporary Legal Scholarship” (1985-1986) 21 New. Eng. L. Rev. 209 at 216-48 [Kennedy, “Critical Theory”].
49. David Kennedy acknowledges that he relied on some of the ideas of social theorists to deconstruct conventional ideas about politics, law, and the state. See Kennedy, David, “A New Stream of International Law Scholarship” (1988-1989) 7 Wis. Int’l L. J. 1 Google Scholar at 9 [Kennedy, “New Stream”]. According to Nigel Purvis, “[t]he intellectual origins of the [CLS] movement are in Legal Realism, New Left anarchism, Sartrean existentialism, neo-progressive historiography, liberal sociology, radical social theory, and empirical social science.” See Purvis, supra note 6 at 89. Note that Brian Leiter contends that CLS scholars (and especially post-modern CLS scholars) significantly misread legal realism. Leiter denies that legal realism is simply a forerunner to post-modernism and its deconstructionist methodology. See Leiter, “Rethinking Legal Realism,” supra note 14 at 271-75.
50. Hutchinson & Monahan, supra note 11 at 206. According to David Kennedy, the writings of the Frankfurt School inspired CLS to adopt a sceptical stance towards legal phenomena. See Kennedy, “Critical Theory,” supra note 48 at 245.
51. Hutchinson & Monahan, ibid. at 201.
52. Ibid. at 206.
53. See, e.g., Kennedy, International Legal Structures, supra note 2; Kennedy, “New Stream,” supra note 49; Kennedy, David, “Theses About International Law Discourse” (1980) 23 German Y.B. Int’l L. 353 Google Scholar; Boyle, James, “Ideals and Things: International Legal Scholarship and the Prison-house of Language” (1985) 26 Harv. Int’l L. J. 327 Google Scholar; Carty, Anthony, The Decay of International Law? A Reappraisal of the Limits of Legal Imagination in International Affairs (Manchester: Manchester University Press, 1986)Google Scholar; Allott, Philip, “Power Sharing in the Law of the Sea” (1983) 77 Am. J. Int’l L. 1 CrossRefGoogle Scholar; and Koskenniemi, From Apology to Utopia, supra note 2.
54. Anthony Carty states that internationally focused CLS “constitute[s] a so-called post-modern approach to international law.” See Carty, Anthony, “Critical International Law: Recent Trends in the Theory of International Law” (1991) 2 Eur. J. Int’l L. 66 CrossRefGoogle Scholar at 66 [Carty, “Critical International Law”].
55. Carty, “Critical International Law,” ibid.; Kennedy & Tennant, “Bibliography,” supra note 2. As late as 1991, however, there were doubts whether this new international form of CLS (NAIL) should actually be considered a true academic movement. See Purvis, supra note 6 at 91. For a comprehensive list of NAIL conferences, meetings, and workshops during the 1990s see David Kennedy, “When Renewal Repeats,” supra note 7 at 489-90. Kennedy decided to retire NAIL as an institutional project in 1998 with a final conference called “Fin de NAIL: A Celebration” (Kennedy, “When Renewal Repeats,” ibid. at 490). The European Law Research Center, established at Harvard University in 1991, played an important role in the development of NAIL scholarship. See European Law Research Center, online: Harvard University http://www.law. harvard.edu/programs/elrc/.
56. Nigel Purvis describes NAIL “as part of a broader movement in contemporary legal theory com monly known as Critical Legal Studies (CLS) or critical jurisprudence.” See Purvis, ibid. at 89. By contrast, Martti Koskenniemi is careful to distinguish NAIL from the original American form of CLS. See Koskenniemi, Martti, “Letter to the Editors of the Symposium” (1999) 93 Am. J. Int’l L. 351 CrossRefGoogle Scholar at 352. Likewise, David Kennedy distinguishes CLS from NAIL, stating:
I also wanted to differentiate … [NAIL] from ‘critical legal studies,’ which had accumulated a lot of baggage by then. For many young scholars and students, ‘critical legal studies’ seemed at once passé, dangerous, too politicized too much associated with a ‘line’ of some sort. The NAIL was not a movement of ideas or the working out of a general disciplinary problem, but a specific effort by a group of legal academics in particular institutions to encourage one another’s work, hold conferences, write more and differently, get to know people they would not otherwise have met, experiment with new methods and ideas. We did not start with an insight or a disciplinary program, although we all came to think about international law as a legal intelligentsia with its own cultural politics and will to power rather than as a pragmatic handmaiden to governance.
See Kennedy, “When Renewal Repeats,” ibid. at 489. Note that elsewhere Kennedy states that many NAIL scholars, including himself, were previously involved in the CLS movement. See Kennedy & Tennant, “Bibliography,” ibid. at 419.
57. Purvis, supra note 6 at 88; Kennedy, “New Stream,” supra note 49 at 6. Kennedy states: “[W]hen I entered the field in the late seventies, it was clear I was being asked to be a bureaucrat, a laborer in an institutional plant that no one believed was able to respond to international racism, inequality or violence. No one seemed to think that international law was intellectually rich. … My own rather idiosyncratic doctrinal and historical projects fit together as an effort to dislodge the discipline of international law from its stagnation in post-war realism. I have sought to dislodge this resignation and rejuvenate the field as an arena of meaningful intellectual inquiry” (Kennedy, “New Stream” ibid.).
58. Purvis, ibid. at 88.
59. See, e.g., Korhonen, Outi, “New International Law: Silence, Defence or Deliverance” (1996) 7 Eur. J. Int’l L. 1 CrossRefGoogle Scholar at 3; Carty, “Critical International Law,” supra note 54; Koskenniemi, Martti, “The Politics of International Law” (1990) 1 Eur. J. Int’l L. 4 CrossRefGoogle Scholar; and V Scott, Shirley, “International Law as Ideology: Theorizing the Relationship between International Law and International Politics” (1994) 5 Eur. J. Int’l L. 313.CrossRefGoogle Scholar
60. David Kennedy calls this “the tragic voice of post-war public law liberalism.” See Kennedy, “New Stream,” supra note 49 at 2.
61. Purvis, supra note 6 at 92-93, 99. According to Purvis, a central liberalist ideology in international law is the “sovereign-centric conception of world order” (ibid. at 100). Also see Hutchinson & Monahan, supra note 11 at 208.
62. Kennedy & Tennant, “Bibliography,” supra note 2 at 422. Antony Anghie was also a participant at the NAIL conference and his perspective on the “‘New Stream’ approach to international law” is published in Kennedy and Tennant’s “Bibliography” (ibid. at 422). TWAIL scholars Vasuki Nesiah and Lama Abu-Odeh are also included in Kennedy and Tennant’s “Bibliography” (ibid. at 431, 452). Abu-Odeh, in her perspective on the conference, states: “I had the experience during the discussion at the Conference that the ‘Third World’ has yet to emerge as an autonomous conceptual entity” (ibid. at 421).
63. See Kennedy, “When Renewal Repeats,” supra note 7 at 489-90. For TWAIL conference organizer James Gathii’s account of the conference see Gathii, “Alternative and Critical,” supra note 33 at 273, n. 46. Vasuki Nesiah, who was a participant at the founding NAIL conference at Harvard Law School in 1993, was also an important participant at the TWAIL conference, helping to draft TWAILs vision statement (Gathii, “Alternative and Critical,” ibid.).
64. James Thuo Gathii, “Resume,” online: Albany Law School http://www.albanylaw.edu/media/user/faculty/gathii_cv_sept06.pdf at 8.
65. Rajagopal, B., “Frontmatter” in International Law from Below: Development, Social Movements, and Third World Resistance, online: Cambridge University Press CrossRefGoogle Scholar http://assets.cambridge.org/052181/6467/frontmatter/0521816467_frontmatter.pdf at xiv.
66. Anghie, Antony, “Frontmatter” in Imperialism, Sovereignty and the Making of International Law, online: Cambridge University Press CrossRefGoogle Scholar http://assets.cambridge.org/052182/8929/frontmat-ter/0521828929_frontmatter.pdf at xiv.
67. The term “Third World” is often used to refer to the underdeveloped countries of the world; however, the term also has political and geographical undertones to the extent that it generally refers to the postcolonial states of the South. The term is also frequently used to describe social and political movements or oppositions to the actions of the wealthy states of the North. See Mickelson, supra note 35 at 356-57.
68. Ibid. at 360 [emphasis added]. Mickelson suggests that this understanding of Third World perspectives to international law reflects the different meanings of the term “Third World,” stating: “Such a portrayal draws on elements of all the characterizations [of Third World] mentioned above: the quasi-geographical dimension is maintained the importance of the work of political groupings is acknowledged, and the attention to justice posited by the social movement characterization is emphasized” (ibid.). David Fidler seems to interpret Mickelson as contending that there is no distinctive Third World approach to international law. See Fidler, supra note 12 at 30, n. 5. I disagree with Fidler’s interpretation of Mickelson’s article. Mickelson certainly holds that there is no one clear voice, but repeatedly points out that Third World scholars distinguish themselves theoretically and politically from many mainstream international law scholars. Of course, how one interprets Mickelson’s article depends on how one interprets the term “Third World.”
69. Mutua, “What is TWAIL?,” supra note 12 at 31 [emphasis added]. Mutua further states that TWAIL scholarship does not “have a specific creed or dogma” and is “replete with internal contradictions, incoherences and disagreements of content, strategy, and tactics” (ibid. at 36).
70. See, e.g., Mickelson, supra note 35 at 362; and Mutua, “What is TWAIL?,” ibid. at 31-32.
71. See, e.g., Gathii, “Neoliberalism,” supra note 12; Gathii, “Alternative and Critical,” supra note 33 at 274; and Mutua, “What is TWAIL?,” ibid. at 36.
72. Mutua, “What is TWAIL?,” ibid.
73. Ibid. at 36. Mutua makes reference to the dual political and intellectual consciousness of TWAIL throughout his work; however, this point is most strongly articulated in his conclusion where he states: “TWAIL is not simply an intellectual trend an academic pursuit. It is a political and ideological commitment to a particular set of views” (ibid. at 38).
74. Antony Anghie, for example, describes Mutua’s “What is TWAIL?” as “a powerful and eloquent vision of what Third World scholarship should aim towards.” See Antony Anghie, “What is TWAIL: Comment,” supra note 34 at 39. See also Fidler, supra note 12 at 30-33 (whose article is highly influenced by Mutua’s “What is TWAIL?”).
75. For example, Anghie advocates a more nuanced form of opposition than Mutua, stating: “TWAIL scholarship … needs to be self-critical, aware of the limitations of its own analytic framework, and the voices it has excluded and sup Pressed.” Anghie, “What is TWAIL: Comment,” ibid. As well, Joel Ngugi seems to have distanced himself significantly from the Mutuan approach to TWAIL. See Ngugi, Joel, “Making New Wine for Old Wineskins: Can the Reform of International Law Emancipate the Third World in the Age of Globalization?” (2002) 8 U.C. Davis J. Int’l L. & Pol’y 73 Google Scholar. Ngugi describes Mutua as member of the “second crop of anti-colonial scholars” (Ngugi, ibid. at 100-01). Ngugi favourably describes Mutua’s work on European bias in international law and the related need to oppose doctrines that contain this bias; however, Ngugi considers Mutua’s methodology—of “internal transformation”—to be a “tinkering on the margins” (Ngugi, ibid. at 105-06). By contrast, Ngugi’s approach seems more committed to moving beyond international law than directly opposing it He contends that TWAIL scholars must “look from outside the existing framework with its inherent biases” (Ngugi, ibid. at 106) or, in other words, “move out of the episteme of international law as presently configured and engage it from outside” (Ngugi, ibid. at 76). Compare Ngugi’s approach with Mutua, “What is TWAIL?,” supra note 12 at 31.
76. Gathii, “Alternative and Critical,” supra note 33 at 274-75.
77. Mickelson, supra note 35 at 397.
78. Mutua, “What is TWAIL?,” supra note 12 at 31.
79. Roth claims to be on an anti-colonial mission. See Roth, supra note 5 at 2057. Unfortunately, there are very few examples of mainstream scholars responding to Twailian critiques and so I am forced to rely on a hasty inductive generalization and treat (perhaps fallaciously) Roth’s position as an exemplar of the views of a larger number of, unaccounted for, mainstream scholars.
80. Ibid. at 2065.
81. Ibid. at 2057.
82. Ibid. at 2056-58, 2065.
83. Ibid. As mentioned above, it isn’t clear that CLS and NAIL scholars as a group embrace postmodernist theory.
84. Since the 1970s, there has been a post-modern paradigm shift in legal theory (and in most of the social sciences). Nevertheless, while post-modern perspectives have increased, they remain on the margins (in law at least). For a detailed account of the post-modern movement in law see Carty, Anthony, ed., Post-Modern Law: Enlightenment, Revolution and the Death of Man (Edinburgh: Edinburgh University Press, 1990)Google Scholar [Carty, Post-Modern Law]. Also see Goodrich, Peter, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990)Google Scholar; and Cook, Anthony E., “Reflections on Postmodernism” (1991-1992) 26 New Eng. L. Rev. 751.Google Scholar
85. Carty, “Critical International Law,” supra note 54 at 66.
86. Teubner, Gunther, “The Two Faces of Janus: Rethinking Legal Pluralism” (1991-1992) 13 Cardozo L. Rev. 1443 Google Scholar at 1443.
87. See supra notes 76-78 and accompanying text.
88. See, e.g., Anghie & Chimni, supra note 15 at 102 (who favourably cite Zygmunt Bauman’s “Life in Fragment”); and Pahuja, supra note 1 at 248 (who uses Derrida’s concept of “sacred authority”).
89. See, e.g., Mutua, “What is TWAIL?,” supra note 12 at 31; Fidler, supra note 12 at 31; and Gathii, “Neoliberalism,” supra note 12 at 1998.
90. It is interesting to note that David Kennedy and Martti Koskenniemi have both been characterized as modernist scholars because of their reconstructive impulses. Carty refers to these two authors as the last modernists of international law because, while they engage in a project of deconstruc-tion, they attempt to overcome the indeterminacy that they find in international law. See, e.g., Carty, “Critical International Law,” supra note 54; and Korhonen, supra note 59 at 17-26 (critiquing a post-modernist reading of Koskenniemi). Perhaps the reconstructivist impulse of the early scholarship of Kennedy and Koskenniemi explains the Twailian focus on their work.
91. Mutua explicitly distances his inquiry from that of some post-modern scholars, who he feels “diminish the importance of scholarship and political movements and strategies deployed by earlier Third World voices and political leaders as tools against the imperial projects of the West.” See Mutua, “What is TWAIL?,” supra note 12 at 32.
92. Ibid. Mutua describes the Third World as a “set of geographical, oppositional, and political realities that distinguish it from the West” (ibid. at 35).
94. See generally Ross, Andrew, ed., Science Wars (London: Duke University Press, 1996)Google Scholar; Cromer, Alan, Uncommon Sense: The Heretical Nature of Science (Oxford: Oxford University Press, 1993)Google Scholar; Latour, Bruno, “When Things Strike Back: A Possible Contribution of ‘Science Studies’ to the Social Sciences” (2000) 51 Brit. J. Soc. 107 CrossRefGoogle Scholar; Latour, Bruno, Pandora’s Hope: Essays on the Reality of Science Studies (Cambridge, MA: Harvard University Press, 1999)Google Scholar; and Latour, Bruno, Science in Action: How to Follow Scientists and Engineers through Society (Cambridge, MA: Harvard University Press, 1987).Google Scholar
96. But see Ngugi, supra note 75 (a TWAIL scholar without an obvious reconstructive impulse).
97. See Duxbury, supra note 14 at 589; Carty, Post-Modern|Law, supra note 84 at 3. Carty writes that modern thought “is not simply wrong. It is silly—hence the derision” (Carty, ibid. at 4). However, some scholars like Peter Goodrich have resisted understanding post-modernism as parody and instead see post-modernism as “melancholic.” See Goodrich, supra note 84 at 15.
98. I am inspired by Brian Leiter and Ronald Allen’s project whereby they introduce lawyers to “recent developments in epistemology,” which they believe “provide a conceptual foundation for some familiar approaches to problems from the law of evidence.” See Ronald J. Allen & Leiter, Brian, “Naturalized Epistemology and the Law of Evidence” (2001) 87 Va. L. Rev. 1491 Google Scholar at 1492.
99. Leiter, Brian, “The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud” in Leiter, Brian, ed., The Future for Philosophy (Oxford: Clarendon Press, 2004) 74 Google Scholar, online: Social Science Research Network http://ssrn.com/abstract=691002 at 191 [Leiter, “Hermeneutics of Suspicion” cited to Social Science Research Network].
100. See, e.g., Rescher, Nicholas, Epistemology: An Introduction to the Theory of Knowledge (Albany, NY: State University of New York Press, 2003) at xiii–xvii Google Scholar; Greco, John, “Introduction: What is Epistemology” in Greco, John & Sosa, Ernest, eds., The Blackwell Guide to Epistemology (Malden, MA: Blackwell, 1999) 1 Google Scholar; and Moser, supra note 24 at 3.
101. See, e.g., Moser, ibid.; Greco, ibid.; and Rescher, ibid. at xiii. Greco states: “If we define epistemology in terms of its central questions then it is apparent that some recent objections to epistemology miss their mark. This is because the objections trade on implausible understandings of what epistemology is. For example, various objections caricature epistemology as (a) the quest for certainty, (b) the attempt to find absolute foundations, (c) the attempt to legitimate other disciplines, such as science, and (d) the project of refuting skepticism” (Greco, ibid. at 2).
102. See generally Allen & Leiter, supra note 98.
103. Consider the common case of asking someone for the time. If they respond “I think it is sixish but I don’t have a watch,” we will likely thank them, but will then ask somebody else to confirm the time.
104. For the American (that is, the Bush administration’s) position with respect to illegal combatants see Bush, George W., “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” online: The White House http://www.whitehouse.gov/news/releases/2001/11/print/20011113-27.html Google Scholar; and Donald H. Rumsfeld, “U.S. Department of Defense News Briefing, Thursday, May 13, 2004,” online: U.S. Department of State’s Bureau of International Information Programs http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2004&m= May&x=20040514164950sjhtrop0.3854029&t=livefeeds/wf-latest.html.
105. Plato, Plato’s Theaetetus: Part I of the Being of the Beautiful, trans. by Benardete, Seth (Chicago: University of Chicago Press, 1984) at 201.Google Scholar
106. Moser, supra note 24 at 4. As Moser states, “This tripartite definition has come to be called ‘the standard analysis’” (ibid). Likewise, Richard Feldman explains that “[c]urrent epistemological folk wisdom holds that prior to 1963 an almost universally held view was that knowledge is justified true belief.” See Richard Feldman, “Methodological Naturalism in Epistemology” in John Greco & Ernest Sosa, eds., supra note 100 at 170, 172.
107. Consider the following examples: 1) Imagine you thought that the earth was round because all objects in the universe replicate the shape of oranges. It is obviously true that the earth is round and you believe that it is so but we would not want to say that you “know this,” because your reason for believing this truth—the influence of oranges on the shape of the universe—was unjustified. 2) Imagine that after rigorous statistical analysis you pick team P to win the big game. You believe that P will win, and you are justified in believing this because of your rigorous analysis, but you cannot be said to know that P will win. These examples hopefully illustrate why it is widely held that all three aspects of the tripartite definition must be present and why knowledge cannot be simply reduced to belief.
109. See, e.g., Richard Fumerton, “Theories of Justification” in Paul K. Moser, ed., supra note 24 at 204; Robert Audi, “The Sources of Knowledge” in Paul K. Moser, ed., ibid. at 71; and Linda Zagzebski, “What is Knowledge?” in John Greco & Ernest Sosa, eds., supra note 100 at 92.
110. Gettier, supra note 108. It has since been acknowledged that Bertrand Russell raised similar worries about the justified true belief definition of knowledge in his 1912 book, The Problems of Philosophy. See Russell, Bertrand, The Problems of Philosophy (Buffalo, NY: Prometheus Books, 1988)Google Scholar at ch. 13.
111. Gettier, ibid. Neither of these points seems particularly controversial.
112. See, e.g., Zagzebski, supra note 109 at 109 (Zagzebski defines knowledge as “cognitive contact with reality arising out of acts of intellectual virtue”).
113. Nicholas Rescher, for example, states that “knowledge is not simply a matter of having a true belief that is somehow justified but rather that knowledge calls for having a true belief that is appropriately justified.” See Rescher, supra note 100 at 4.
115. Ibid. at 58.
116. See, e.g., Kitcher, ibid.; Hilary Kornblith, “In Defense of Naturalized Epistemology” in John Greco & Ernest Sosa, eds., supra note 100 at 158 [Kornblith, “In Defense”]; Feldman, supra note 106 at 170; and Leiter, Brian, “Naturalism and Naturalized Jurisprudence” in Bix, Brian, ed., Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998) 79.Google Scholar
117. Quine, W.V, “Epistemology Naturalized” in Quine, W.V, ed., Ontological Relativity and Other Essays (New York: Columbia University Press, 1969) 69.Google Scholar
118. Likewise, Kant claims that a priori knowledge is “absolutely independent of all experience.” See Kant, Immanuel, Critique of Pure Reason, trans. by Smith, N.K. (New York: St. Martin’s Press, 1965) at 43.Google Scholar
119. Kornblith, Hilary, “Introduction: What is Naturalistic Epistemology?” in Kornblith, Hilary, ed., Naturalizing Epistemology (Cambridge, MA: MIT Press, 1985) 1 Google Scholar at 3.
120. According to Quine, “Epistemology is concerned with the foundations of science” because “whatever evidence there is for science is sensory evidence … [and] all inculcation of meanings of words must rest ultimately on sensory evidence.” See Quine, supra note 117 at 69, 75. Quine concludes that “[e]pistemology, or something like it, simply falls into place as a chapter of psychology and hence of natural science. It studies a natural phenomenon, viz., a physical human subject” (ibid. at 82).
121. See, e.g., Allen & Leiter, supra note 98 at 1494; Mario De Caro & Macarthur, David, eds., Naturalism in Question (Cambridge, MA: Harvard University Press, 2004)Google Scholar; and Alvin I. Goldman, “The Sciences and Epistemology” in Paul K. Moser, ed., supra note 24 at 144.
122. Goldman, ibid. at 144.
123. Kornblith, “In Defense,” supra 116 at 164.
124. Ibid. at 167.
125. Barry Stroud, “The Charm of Naturalism” in Mario De Caro & David Macarthur, eds., supra note 121 at 21, 24.
126. See generally Leiter, “Rethinking Legal Realism,” supra note 14 at 267-68 (who describes what he calls the “Received View” of legal realism).
127. Kitcher, supra note 114 at 60.
128. Leiter, “Hermeneutics of Suspicion,” supra note 99 at 192-93.
129. Ibid. at 150-51.
130. Jasper, David, A Short Introduction to Hermeneutics (Louisville, KY: Westminster John Knox Press, 2004) at 7.Google Scholar Jasper explains that the Greek term hermeneus stems from Hermes, the messenger of the gods in Greek mythology, stating: “With his winged sandals Hermes was able to bridge the gap between the divine and human realms, putting into words those mysteries which were beyond the capacity of human utterance. … His task was to bridge this gap and to make that which seems unintelligible into something meaningful and clear to the human ear” (ibid.). With respect to the etymology of the term “hermeneutics” also see G. Ebeling, “Hermeneutik” in Galling, Kurt, ed., Religion in Geschichte und Gegenwart, 3rd ed. (Tübingen: Mohr, 1959) 243 Google Scholar at 243-62; and Kurt Mueller-Vollmer, “Introduction: Language, Mind, and Artifact: An Outline of Hermeneutic Theory Since the Enlightenment” in Mueller-Vollmer, Kurt, ed., The Hermeneutics Reader (New York: Continuum, 1994) 1.Google Scholar
131. Jasper, ibid. at 12.
132. Ibid. at 7; and Mueller-Vollmer, supra note 130 at 2.
133. It was not until the Renaissance, when there was a renewed interest in interpreting ancient Greek and Roman texts, that hermeneutics really came into its own as a distinct discipline. See Mueller-Vollmer, ibid. at 2.
134. Ibid. at 3.
135. Ibid. at 4.
137. For example, devoted members of a religion who read a foundational text of that religion might, because of their faith, interpret almost every word of that text as a literal truth. This sort of interpretation is a sensus historicus form of “hermeneutics of faith.” See Jasper, supra note 130 at 9; Caplan, Harry, “The Four Senses of Scriptural Interpretation and the Mediaeval Theory of Preaching” (1929) 4 Speculum 282 CrossRefGoogle Scholar at 283. Other forms of hermeneutics place the ex Pression-maker or ex Pression-hearer as the object of hermeneutic interpretation. See generally Elizabeth Malbon, Struthers, “Structuralism, Hermeneutics, and Contextual Meaning” (1983) 51 J. Am. Acad. Rel. 207 CrossRefGoogle Scholar at 215.
138. Philosophers such as Stephen Toulmin have been critical of “philosophical positions that attack the opposition by impugning their motives, not refuting their arguments.” See Toulmin, Stephen, Return to Reason (Cambridge, MA: Harvard University Press, 2001) at 95.Google Scholar Toulmin states:
[O]nce we allow motivation to be an issue, we are all in the same boat, and this stratospheric attitude is in danger of being a sham. Why do the critical philosophers think they are the only people having an impartial or unbiased position? How are they so sure that the hidden class, gender, or other interests that mislead those they attack, do not affect their own perspectives, too? If they are able to read their opponents’ minds so clearly—seeing past surface rhetoric to the deeper interests behind it—why are they so confident that their own ideas are free from similar distortion and criticism? Seen from a truly impartial standpoint, the hermeneutics of suspicion must surely be balanced by an equally strong hermeneutics of self-doubt (ibid. at 95-96).
It is worth noting, however, that Toulmin refers to Ricoeur’s understanding of hermeneutics of suspicion and not one informed by naturalized epistemology. As I explain below, it is the latter approach that I contend accurately describes the methodology of TWAIL scholarship.
139. Ricoeur, Freud and Philosophy, supra note 26 at 32.
140. See, e.g., Pahuja, supra note 1 at 245; Mutua, Makau, “Savages, Victims, and Saviors: The Metaphor of Human Rights” (2001) 42 Harv. Int’l L. J. 201 Google Scholar at 202 [Mutua, “SVS”]; and Anghie & Chimni, supra note 15 at 99.
141. Gathii, “Rejoinder,” supra note 1 at 2068-69; and Mutua, “SVS,” ibid. at 204.
142. Freud describes three types of mental processes: the conscious, the preconscious, and the unconscious. He states: “Experience has taught us that there are hardly any mental processes, even of the most complicated kind which cannot on occasion remain preconscious, although as a rule they Press forward, as we say, into consciousness. There are other mental processes or mental material which have no such easy access to consciousness, but which must be inferred, discovered, and translated into conscious form in the manner that has been described. It is for such material that we reserve the name of the unconscious proper.” See Freud, Sigmund, An Outline of Psychoanalysis, trans. by Strachey, James (New York: Norton, 1940) at 34–35 Google Scholar [emphasis added]. Freud attributes dreams and neurotic symptoms to the activities of unconscious desires. See Freud, Sigmund The Interpretation of Dreams, trans. by Brill, A.A. (New York: Modern Library, 1994)Google Scholar, ch. 7.
143. Nietzsche, amongst other things, critiques the motives of the rationalist philosophers of the Enlightenment. He is suspicious of the philosophical quest for absolute truth. See Nietzsche, Friedrich, Beyond Good and Evil: Prelude to a Philosophy of the Future, trans. by Kaufmann, Walter (New York: Vintage, 1989)Google Scholar. With respect to the motivations behind the quest for truth, Nietzsche states: “Is it any wonder that we should finally become suspicious, lose patience, and turn away impatiently? … Who is it really that puts questions to us here? What in us really wants ‘truth’?” (ibid. at para. 1). He describes the need to “contend with unconscious resistance in the heart of the investigator” (ibid. at para. 23) and argues that the “real ‘interests’ of the scholar … lie usually some where else [than a drive to knowledge]—say, in his family, or in making money, or in politics” (ibid. at para. 6).
144. Marx, for example, takes a highly suspicious stance towards religious belief, famously stating: “Man makes religion, religion does not make man. Religion is indeed the self-consciousness and self-esteem of man who has either not yet won through to himself or has already lost himself again. … Religious suffering is at one and the same time the ex Pression of real suffering and a protest against real suffering. Religion is the sigh of the op Pressed creature, the heart of a heartless world and the soul of soulless conditions. It is the opium of the people.” See Marx, Karl, “A Contribution to the Critique of Hegel’s Philosophy of Right: Introduction (1843-4)” in Early Writings, trans. by Livingstone, Rodney & Benton, Gregor (London: Penguin, 1992) 243 Google Scholar at 244.
145. Ricoeur, Freud and Philosophy, supra note 26 at 32.
146. Ibid. at 33.
147. Descartes, René, “Meditations on First Philosophy” in Discourse on Method and Meditations on First Philosophy, 4th ed., trans. by Cress, Donald A. (Indianapolis, IN: Hackett, 1998) 46 Google Scholar at 59-69. Describing his project, Descartes states: “Several years have now passed since I first realized how numerous were the false opinions that in my youth I had taken to be true, and thus how doubtful were all those that I had subsequently built upon them. And thus I realized that once in my life I had to raze everything to the ground and begin again from the original foundations” (ibid. at 59). Descartes’ methodology of radical doubt is perhaps most evident in the following passage: “reason now persuades me that I should withhold my assent no less carefully from opinions that are not completely certain and indubitable than I would from those that are patently false” (ibid.).
148. Ricoeur traces the intellectual pedigree of the hermeneutics of suspicion back to Descartes. See Ricoeur, Freud and Philosophy, supra note 26 at 33. Descartes, of course, infamously rested his proof for the existence of God on the foundational belief: “I think, therefore I am” or “cogito ergo sum.” See René Descartes, “Discourse on Method” in Discourse on Method and Meditations on First Philosophy, ibid. at 18. Descartes makes a similar claim in his “Meditations on First Philosophy” but uses different terminology: “‘I am, I exist’ is necessarily true every time I utter it or conceive it in my mind.” See Descartes, “Meditations on First Philosophy,” ibid. at 64. Distinguishing the projects of the three masters of suspicion from the Cartesian project, Ricoeur states: “Descartes triumphed over the doubt as to things by the evidence of consciousness; they triumph over the doubt as to consciousness by an exegesis of meaning. Beginning with them, understanding is hermeneutics: henceforward to seek meaning is no longer to spell out the consciousness of meaning, but to decipher its ex Pressions” (Ricoeur, Freud and Philosophy, ibid. at 33).
149. Madison, G. B., The Hermeneutics of Postmodernity: Figures and Themes (Indianapolis, IN: Indiana University Press, 1990).Google Scholar
150. Ricoeur, Freud and Philosophy, supra note 26 at 34-35. But see Foucault, Michel, Language, Counter-Memory, Practice: Selected Essays and Interviews (Ithaca, NY: Cornell University Press, 1977) at 141–42 Google Scholar; Leslie Thiele, Paul, “Reading Nietzsche and Foucault: A Hermeneutics of Suspicion?” (1991) 85 Am. Pol. Sci. Rev. 581 CrossRefGoogle Scholar at 587. Foucault and Thiele reject Ricoeur’s claim that the three thinkers, and Nietzsche especially, engaged in a hermeneutics of suspicion.
151. Ricoeur, Freud and Philosophy, ibid. at 33.
152. Kearney, Richard, On Paul Ricoeur: The Owl of Minerva (Aldershot, England: Ashgate, 2004) at 82–84 Google Scholar. Also see Ricoeur, Paul, Hermeneutics and the Human Sciences: Essays on Language, Action, and Interpretation, trans. by Thompson, John B. (Cambridge: Cambridge University Press, 1981) at 231–39 CrossRefGoogle Scholar.
153. Leiter, “Hermeneutics of Suspicion,” supra note 99 at 149. Leiter attributes such a reading to Foucault and Derrida.
154. Ibid. at 150 [emphasis added].
156. Ibid. at 151. See Ricoeur, Freud and Philosophy, supra note 26 at 358-63 (for Ricoeur’s analysis of whether Freud’s psychoanalysis should be considered a science).
157. Leiter, “Hermeneutics of Suspicion,” ibid. Also see Kitcher, Philip, “The Ends of the Sciences” in Leiter, Brian, ed., The Future for Philosophy (Oxford: Oxford University Press, 2004) 208.Google Scholar
158. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 (III), UN. GAOR, 3d Sess., 183d mtg. at 71, UN. Doc. A/810 (1948).
159. Mutua defines the human rights movement as the “collection of norms, processes, and institutions that traces its immediate ancestry to the Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948.” See Mutua, “SVS,” supra note 140 at 201, n. 1.
160. Mainstream scholars who promote the universal applicability of human rights (HR) seem to argue something like the following:
HR are applicable in all cultures (since they are culturally neutral);
HR protection is always desirable in cultures where HR are applicable; and
Therefore, HR protection is always desirable in all cultures.
161. The post-modern critique of universal human rights (UHR) seems to be something like the fol lowing:
All things that claim universal applicability are erroneous;
UHR claim universal applicability; and
Therefore, UHR are erroneous.
For an overview of the tension between relativism and international human rights see Alison Renteln, Dundes, “The Unanswered Challenge of Relativism and the Consequences for Human Rights” (1985) 7 Human Rights Q. 514 CrossRefGoogle Scholar. Renteln herself does not reject the possibility of international human rights (ibid. at 540). For advocates of this critique of human rights see, e.g., Bozeman, Adda B., “Human Rights and National Security” (1982) 9 Yale J. World Pub. Order 40 Google Scholar; Donnelly, Jack, “Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights” (1982) 76 Am. Pol. Sci. Rev. 303 CrossRefGoogle Scholar; Pollis, Adamantia & Schwab, Peter, “Human Rights: A Western Construct with Limited Applicability” in Pollis, Adamantia & Schwab, Peter, eds., Human Rights: Cultural and Ideological Perspectives (New York: Praeger, 1979) 1 Google Scholar; and Murphy, Jr., Cornelius F., “Objections to Western Conceptions of Human Rights” (1981) 9 Hofstra L. Rev. 433.Google Scholar
162. See, e.g., J. Watson, Shand, Theory & Reality in the International Protection of Human Rights (Ardsley, NY: Transnational Publishers, 1999).Google Scholar
163. See, e.g., Brownlie, Ian, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963) at 342 CrossRefGoogle Scholar; and Waldock, Humphrey, “The Regulation of the Use of Force by Individual States in International Law” (1952) 81 Recueil des Cours 455 Google Scholar. But see Annan, Kofi A., “Two Concepts of Sovereignty” The Economist (18 September 1999)Google Scholar, online: United Nations http://www.un.org/News/ossg/sg/stories/kaecon.html.
164. Mutua, “SVS,” supra note 140; and Nesiah, Vasuki, “The Ground Beneath Her Feet: TWAIL Feminisms” in Anghie, Antony, Chimni, Bhupinder, Mickelson, Karin & Okafor, Obiora, eds., The Third World and International Order: Law, Politics and Globalization (Leiden: Brill Academic Publishers, 2003) 133 Google Scholar at 138-40.
165. See, e.g., Mutua, “What is TWAIL?,” supra note 12 at 36.
166. Mutua, “SVS,” supra note 140.
167. Ibid. at 204.
170. Mutua quotes Denys Shropshire, who describes Africans as “technically barbaric” and “primitive” and argues that the missionary’s role is, at least in part, to “civilize” and “convey the ‘Gifts of Civilization.’” See ibid. at 212-13.
171. Roosevelt speaks of the “weak and chaotic governments and people south of us” and states that it is the United States’ duty “to police these countries in the interest of order and civilization.” See ibid. at 214.
172. Ibid. at 208.
173. Nesiah, supra note 164.
174. Ibid. at 134.
175. Ibid. at 138.
176. Ibid. at 134-35, 139-42.
177. Ibid. at 140.
178. Ibid. at 138-40.
179. Ibid. at 139.
180. Ibid. at 140.
181. Ibid. at 135, 139.
182. Ibid. at 134.
183. Ibid. at 142.
184. Ibid. at 143.
185. Mutua, “SVS,” supra note 140 at 209-18; and Nesiah, ibid. at 134-46.
186. Mutua, “SVS,” ibid. at 204-05; and Nesiah, ibid. at 138-40.
187. Mutua, “SVS,” ibid. at 208-09. Mutua states that “[t]he idea of human rights—the quest to craft a universal bundle of attributes with which all societies must endow all human beings—is a noble one. The problem with the current bundle of attributes lies in their inadequacy, incompleteness, and wrong-headedness” (ibid. at 209). He later suggests that there is some promise of locating a universal platform on which to rest human rights (ibid. at 219).
188. Leiter, “Hermeneutics of Suspicion,” supra note 99 at 192-93.
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