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Martti Koskenniemi, the Mainstream, and Self-Reflectivity

Published online by Cambridge University Press:  28 July 2016

Abstract

This article argues that contemporary international lawyers all sing the same critical refrain but few have really confronted and integrated the critical attitude deployed in From Apology to Utopia. After the denial and perplexity of the first encounters with Martti Koskenniemi's work, international lawyers came to feel that they have domesticated the perplexity provoked by it. They now all enthuse about the new self-reflectivity that their victorious struggle with From Apology to Utopia supposedly allowed them to acquire. In sum, the contemporary self-proclaimed self-reflective international lawyers, after reading From Apology to Utopia, have returned to business as usual, continuing to let the discipline's vocabulary decide on their behalf.

Type
INTERNATIONAL LEGAL THEORY: Symposium on Martti Koskenniemi's From Apology to Utopia
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

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References

1 See O. Korhonen, International Law Situated. An Analysis of the Lawyer's Stance Towards Culture, History and Community (2000), 9–10.

2 On the virtues of anachronism, see Koskenniemi, M., ‘Histories of International Law: Significance and Problems for a Critical View’, (2013) 27 Temple Journal of International and Comparative Law 215 Google Scholar, at 230–1.

3 There are no pre-conceptual or even pre-theoretical data that exist outside any conceptual and descriptive framework. See A. McIntyre, Whose Justice? Which Rationality? (1988), 333.

4 S. Fish, Is there a text in this class? (1980), 360; see also Mcintyre, supra note 3, at 363–7.

5 Compare with the notion of ‘moderate external point of view’ developed by F. Ost and M. van de Kerchove, Legal System between Order and Disorder (1994), 9.

6 See my earlier account of From Apology to Utopia from which I have radically departed ever since. See d'Aspremont, J., ‘Uniting Pragmatism and Theory in International Legal Scholarship: Koskenniemi's From Apology to Utopia revisited’, (2006) 19 Revue québécoise de droit international 353 Google Scholar.

7 d'Aspremont, J., ‘Wording in International Law’, (2012) 25 Leiden Journal of International Law 575 CrossRefGoogle Scholar.

8 For an overview of the lessons of From Apology to Utopia, see Rasulov, A., ‘ From Apology to Utopia and the Inner Life of International Law’, (2016) 29 LJIL 641–66CrossRefGoogle Scholar.

9 Even Martti Koskenniemi deemed it necessary to rebut such association. See the new epilogue in the re-issue of From Apology to Utopia (2005).

10 See the Interview of Robert Jennings by A. Cassese, Five Masters of International Law (2011), 146 (arguing that high-flown ideas may be a kind of escapism from the urgent problem in the field).

11 Singh, S., ‘International legal positivism and new approaches to international law’, in Kammerhofer, J. and d'Aspremont, J. (eds.), International Legal Positivism in a Postmodern World, (2014), 291316 CrossRefGoogle Scholar; Desautels-Stein, J., ‘International legal structuralism: A primer’ (2016) 8 International Theory (forthcoming)CrossRefGoogle Scholar; See also S. Singh, The Politics of Martti Koskenniemi's Theory (Or, The International Legal Subject & an Impossible Freedom) (on file with the author). Jouannet comes with a similar but more nuanced account. See E. Jouannet, ‘A Critical Introduction’, in M. Koskenniemi, The Politics of International Law (2011), 2 and 7–12. Koskenniemi's works are said to be works of structuralism because they take roots in Saussurean structural linguistics and assume that words have no inner meaning but that originating on – and being left fluctuating in – its relationship with other words. For some general remark on structuralism and its impact on legal thought, see Desautels-Stein, J., ‘Structuralist Legal Histories’, (2015) 78 Law and Contemporary Problems 37 Google Scholar.

12 See Rasulov, A., ‘ From Apology to Utopia and the Inner Life of International Law’, (2016) 29 LJIL 641–66CrossRefGoogle Scholar. On the idea of a termination of deconstruction see Schlag, P., ‘“Le hors de texte, c'est moi”: the politics of form and the domestication of deconstruction’, (1990) 11 Cardozo Law Review 1631 Google Scholar; Schlag, P., ‘The problem of the subject’, (1991) 69 Texas Law Review 1627 Google Scholar; Schlag, P., ‘A brief survey of deconstruction’, (2005) 27 Cardozo Law Review 741 Google Scholar; and P. Dews, Logics of Disintegration. Post-structuralist Thought and the Claims of Critical Theory (1987), 33–44 and 200–19.

13 Beckett, J., ‘Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project’, (2006) 7 German Law Journal 1045 Google Scholar, at 1046.

14 von Bernstorff writes, ‘In a truly modernist spirit From Apology to Utopia has provided the discipline with a sharpened self-reflective consciousness’. See von Bernstorff, J., ‘Sisyphus was an international lawyer. On Martti Koskenniemi's “From Apology to Utopia” and the place of law in international politics’, (2006) 7 German Law Journal 1015 Google Scholar, at 1034. This is also a finding made by Bederman although the latter falls short of ascribing it to From Apology to Utopia which he cites. See Bederman, D., ‘Appraising a Century of Scholarship in the American Journal of International Law’, (2006) 100 American Journal of International Law 20 CrossRefGoogle Scholar, 21.

15 Situationalism was very central in legal realism. On the link between critical legal studies and legal realism, see N. Duxbury, Patterns of American Jurisprudence (1997), 6.

16 For an early elaboration of situationality, see K. Jaspers, The Future of Mankind (1958) (transl) and Man in the Modern Age (1932) (transl).

17 See Dunoff, J., ‘From interdisciplinarity to counterdisciplinarity: is there madness in Martti's method?’ (2013) 27 Temple Journal of International and Comparative Law 309 Google Scholar.

18 Koskenniemi himself has unsurprisingly contended that there is an intellectual continuity between his 1989 From Apology to Utopia, Gentle Civilizer of Nations and his 2005 From Apology to Utopia with an Epilogue. See M. Koskenniemi, From Apology to Utopia, (2005), 562–3 and 617; M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001), 1–2. The two can be said to have paved the way to Koskenniemi's Kantian turn. On the continuity between the two, see Jouannet, supra note 11, 17. On the later Kantian turn of Koskenniemi, see S. Singh, The Politics of Martti Koskenniemi's Theory (Or, The International Legal Subject & an Impossible Freedom) (on file with the author).

19 See generally Koskenniemi (2001), supra note 18. See the remarks on this aspect of Koskenniemi's project by Dunoff, supra note 17.

20 Koskenniemi has taken direct issue with those structures, like managerialism, in that they obscure the way power works. This is something which Koskenniemi focused on at a subsequent stage. See Koskenniemi, M., ‘The Politics of International Law: 20 Years Later’, (2009) 20 European Journal of International Law 7 CrossRefGoogle Scholar. This is why his culture of formalism seeks to reinstate international law as the only available surface over which managerial governance may be challenged. Koskenniemi (2001), supra note 18, 500–8.

21 This is one of the central ideas defended by Bourdieu in his studies of the legal field. See, e.g., Bourdieu, P., ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805 Google Scholar. On the step made between Bourdieu and Foucault and the distinct benefits of the insights provided by each of them for the study of international law, see the remarks of Rajkovic, N., ‘Rules, Lawyering, and the Politics of Legality: Critical Sociology and International Law's Rule’, (2014) 27 Leiden Journal of International Law 331 CrossRefGoogle Scholar, at 341, citing Tadros, V., ‘Between Governance and Discipline: The Law and Michel Foucault’, (1998) 18 Oxford Journal of Legal Studies 75 CrossRefGoogle Scholar, at 78; See also Ewald, F., ‘Norms, Discipline and the Law’, (1990) 30 Representations 138 CrossRefGoogle Scholar, at 139–41; L. Hammer, A Foucauldian Approach to International Law. Descriptive Thoughts for Normative Issues (2007).

22 Bederman, supra note 14, 48 (‘In my view, the most surprising intellectual turn of the AJIL's past decade has been the self-conscious renewal of interest in the methods and techniques of international legal scholarship itself.’). This seems to be translated into the feeling of a need to be methodological multilingual. R. van Gestel, H. Micklitz and M. Poiares Maduro, Methodology in the New Legal World, at 14 (EUI Working Papers No. 2012/13, 2012), available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2069872.

23 Koskenniemi, M., ‘Letter to the editors of the symposium’, (1999) 93 American Journal of International Law 351 CrossRefGoogle Scholar, at 352–3. See also Korhonen, O., ‘New International Law: Silence, Defence or Deliverance?’, (1996) 7 European Journal of International Law 1 CrossRefGoogle Scholar, at 17. See also Desautels-Stein, supra note 11. Such a contention has been made by Derrida in relation to deconstruction in general. See Derrida, J., ‘The Almost Nothing of the Unpresentable’, in Weber, E. (ed.), Points. . . Interviews (1995), 78 Google Scholar at 83 (‘Deconstruction as such is reducible to neither a method nor an analysis’). For the opposite position and an example of the making of deconstruction as a technique, a method or analytical instrument, see Balkin, J., ‘Deconstructive Practice and Legal Theory’, (1987) 96 Yale Law Journal 743 CrossRefGoogle Scholar (at 786: ‘deconstruction by its very nature is an analytical tool’).

24 Koskenniemi, supra note 23, 352; Orford, A., ‘On international legal method’, (2013) 1 London Review of International Law 166 CrossRefGoogle Scholar, at 167.

25 See also Haskell, J., ‘ From Apology to Utopia's Conditions of Possibility’, (2016) 29 LJIL 667–76CrossRefGoogle Scholar.

26 See Bederman, supra note 14, 21.

27 For some resistance and the necessity of legal scholarship to reduce complexity, see Peters, A., ‘Realizing Utopia as a Scholarly Endeavor’, (2013) 24 European Journal of International Law 533 CrossRefGoogle Scholar. For some remarks on the specific historic conjuncture of the publication of From Apology to Utopia, see Haskell, J., ‘ From Apology to Utopia's Conditions of Possibility’, (2016) 29 LJIL 667–76CrossRefGoogle Scholar.

28 d'Aspremont, supra note 7.

29 See contra Dupuy, P-M., ‘Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’, (2005) 16 European Journal of International Law 131 CrossRefGoogle Scholar, at 131, 137.

30 Semantic instability refers to the practice according to which word semantics is purposely kept open to allow semantic oscillation. It can take various forms including the borrowing of words and idioms from social or hard sciences, for they will usually not be entirely fathomable by other members of the community of international legal scholars, thereby allowing a wide space for semantic fluctuation. Semantic instability allows the destabilization of fellow scholars. Indeed, it confuses the reader who can never clearly delineate or grasp an ever-changing and unstable argument. It bars any argumentative backfire while allowing the author to dodge most counter-arguments by taking refuge under a semantic shelter. Such semantic instability is often facilitated by the resort to economical textual constructions which evoke – rather than explicitly state – a large state of affairs and come with a large semantic load. For some critical observations on this academic practice, see d'Aspremont, supra note 7.

31 Semantic intimidation refers to the use of words – especially those you borrow from other fields and which may be unknown to peers – as some sort of heavy artillery that one makes appear on adversaries’ radar to intimidate the latter. Such a practice is grounded in the belief that argumentative adversaries will accordingly be deterred from directly engaging with one's argument, which can, in turn, create some comforting distance. It can also express itself through conceptual ‘obscurantism’ or semantic instability. For some critical observations on this academic practice, see ibid.

32 For Beckett, ‘the crooked paths [Koskenniemi's] writing sometimes takes are necessary or at least beneficial, and should not be straightened out to aid the reader who travels them’. See Beckett, supra note 13, 1088.

33 See the Interview of R. Jennings by A. Cassese in Cassese, supra note 10, 146; See also the criticisms of P-M. Dupuy on Koskenniemi's style of writing, in Dupuy, supra note 29, 131 and 137. Some of the criticisms are mentioned by Jouannet, supra note 11, 22.

34 See Introduction supra.

35 See the Interview of R. Jennings by A. Cassese in Cassese, supra note 10, 145–6.

36 See the Interview of L. Henkin by A. Cassese in Cassese, supra note 10, 220.

37 Ibid.

38 See supra notes 9 and 10.

39 Beckett speaks of ‘unpleasantness’. See Beckett, supra note 13, 1047.

40 von Bernstorff, supra note 14, 1015.

41 See the Interview of O. Schachter by A. Cassese, in Cassese, supra note 10, 240.

42 See e.g., von Bernstorff, supra note 14, 1015.

43 J. Beckett, ‘Faith and Resignation: a Journey through International Law’, in M. Stone, I. rua Wall and C. Douzinas (eds.), New critical legal thinking: law and the political, Abingdon (2012), 145–66; see also J. Beckett, The Politics of International Law – Twenty Years Later: A Reply, EJIL: TALK!, 19 May 2009, available at www.ejiltalk.org/the-politics-of-international-law-twenty-years-later-a-reply/.

44 Beckett, J., ‘Behind Relative Normativity: Rules and Process as Prerequisites of Law’, (2001) 12 European Journal of International Law 627 CrossRefGoogle Scholar; Beckett, J., ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to Nail’, (2005) 16 European Journal of International Law 213 CrossRefGoogle Scholar. See also d'Aspremont, supra note 6 (from which I have radically departed ever since).

45 R. Higgins, Problems and Process (1995), 9.

46 Ibid., 8.

47 Ibid., 9.

48 von Bernstorff speaks of From Apology to Utopia as a ‘risky exercise’. See von Bernstorff, supra note 14, 1026.

49 For a discussion of whether reconciliation is ever possible see J. Kammerhofer and J. d'Aspremont, International Legal Positivism in a Post-Modern World (2014). For some general remarks on such attempt of reconciliation and dialogue in general international legal thoughts, see Schlag (2005), supra note 12.

50 Beckett, supra note 13, 1046.

51 See the famous plea of Koskenniemi for a culture of formalism. See Koskenniemi (2001), supra note 18, 502–9; and Koskenniemi, M., ‘What is International Law For?’ in Evans, M. (ed.), International Law (2006), 57, 6970 Google Scholar. For some discussion and interpretation thereof, see E. Jouannet, ‘Présentation critique’, in M. Koskenniemi, La Politique du Droit International (2007), 32–3. See also de la Rasilla del Moral, I., ‘Martti Koskenniemi and The Spirit of the Beehive in International Law’, (2010) 10 Global Jurist 1 CrossRefGoogle Scholar; von Bernstorff, supra note 14, 1015, 1029–31; Beckett, supra note 13, at 1045; See also the book review of Tsagourias, N., ‘Martti Koskenniemi: The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960’, (2003) 16 Leiden Journal of International Law 2 Google Scholar, at 397, 398–9. On the later Kantian turn of Martti Koskenniemi, see Singh, supra note 18.

52 von Bernstorff, supra note 14, 1034 (‘In a truly modernist spirit From Apology to Utopia has provided the discipline with a sharpened self-reflective consciousness’).

53 Abel, R., ‘Review of Richard W. Bauman Ideology and Community in the First Wave of Critical Legal Studies, (2003) 30 (4) Journal of Law and Society 601 Google Scholar, at 602; Lobel, O., ‘The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics’, (2007) 120 Harvard Law Review 937 Google Scholar, at 940; see also J. d'Aspremont, Wording in International Law: A Response, October 2012, available at opiniojuris.org/2012/10/09/ljil-symposium-vol-25-3-wording-in-international-law-a-response/. This echoes the famous claim by Michael Green that we are all legal realists. See Steven, M., ‘Legal Realism as Theory of Law’, (2005) 46 William & Mary Law Review 1915 Google Scholar.

54 On the notion of socialization, see Korhonen, supra note 23, 6.

55 Such a finding has also been made regarding deconstruction in general legal thought. See Schlag (1990), supra note 12, esp. 1636 and 1640–1. See also Schlag (2005), supra note 12, 743 (‘Overall, it's safe to say that most legal academic who thought at all about deconstruction received it in such a way as to leave their own normative and political commitments intact – indeed, unquestioned’).

56 See, e.g., the various stages in Jason Beckett's encounter with international law, supra notes 43 and 44.

57 The expression is from M. Koskenniemi, The Politics of International Law (2011), Preface.