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Three international lawyers in a hall of mirrors

Published online by Cambridge University Press:  03 June 2019

Jean d’Aspremont
Affiliation:
Sciences Po Law School, 27 Rue Saint-Guillaume, 75337 Paris Cedex 07 France, and University of Manchester, Oxford Rd, Manchester M13 9PL, United Kingdom
Corresponding

Abstract

This article uses the metaphor of the hall of mirrors to produce three distinct images of the international lawyer. The hall of mirrors refers here to the extent to which international legal discourses are built on self-referential mechanisms tantamount to mutually reflecting mirrors, by virtue of which movements and postures are reproduced ad infinitum without disclosing the origin thereof. According to the first image produced by virtue of the metaphor, the international lawyer feels invincible and fully makes use of the hall of mirrors to allow international legal discourses to obscure their origins and thrive in foundationlessness. The second image depicts a vulnerable international lawyer who is deprived of self-referential mechanisms for the production of international legal discourses because the mirrors have been shattered or the light turned off or simply because she has closed her eyes. The third image is that of a self-reflective international lawyer who is neither invincible nor vulnerable but consciously standing between the mutually reflecting mirrors wearing fissured spectacles and with no intention to smash the mirror, turn off the light or close her eyes. By developing these three distinct images, this article sheds light on how the contingency of legal doctrines, modes of legal reasoning and legal categories is experienced by international lawyers.

Type
ORIGINAL ARTICLE
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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Footnotes

*

The author wishes to thank Fen Greatley-Hirsch for his assistance. The usual caveat applies.

References

1 It is the same feeling of dispossession of one’s image and the impression of one’s image being severed from its subject that informed the popularization, for entertainment purposes, of houses of mirrors, which, according to a common urban legend, are said to have been created by Peter Stuyvesant after he visited the Versailles Hall of Mirrors. This common story is highly contested, as Peter Stuyvesant died in 1672 – that is, before construction of the first house of mirrors in 1678. See M. Pollak, ‘Peter Stuyvesant and the Fun-House Mirrors’, New York Times, 31 January 2016, MB4.

2 In that sense there is certainly a nice – albeit probably accidental – coincidence that the most famous hall of mirrors of all, namely the Hall of Mirrors of the Palace of Versailles, has been repeatedly used on the cover of international law books. Indeed, the famous painting by William Orper,‘The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919’, Imperial War Museum, available at www.iwm.org.uk/collections/item/object/20780, has been regularly reproduced on the cover of international law books. For a recent example see C. Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (2008). On the use of paintings in international law books see J. d’Aspremont and E. De Brabandere, ‘Paintings of International Law’, in J. Hohmann and D. Joyce (eds.), International Law’s Objects: Emergence, Encounter and Erasure through Object and Image (2018), 330.

3 On the gains and merits of thinking in terms of contingency of law and legal institutions see generally R. Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (2001).

4 For some remarks see I. Venzke, ‘What If? Counterfactual (Hi)Stories of International Law’, (2018) 8 Asian Journal of International Law 403.

5 For a useful overview of the various uses of the notion of ‘doctrine’ see T. Skouteris, The Notion of Progress in International Law Discourse (2010), 94–5.

6 See generally H. L. A. Hart, The Concept of Law (1994), at 94–5, 110–12.

7 A. Rasulov, ‘The Doctrine of Sources in the Discourses of the Permanent Court of International Justice’, in C. J. Tams and M. Fitzmaurice (eds.), Legacies of the Permanent Court of International Justice (2013), 271, at 272.

8 Shklar, J. N., Legalism (1964), 1.Google Scholar

Ibid.

10 See F. V. Kratochwil, Rules, Norms, and Decisions (1989), 38.

11 See A. Rasuov, ‘Writing About Empire: Remarks on the Logic of a Discourse’, (2010) 23 Leiden Journal of International Law 449, at 460.

12 Stone, J., Legal System and Lawyers’ Reasonings (1968), 23 Google Scholar.

13 For a different use of the idea of hall of mirrors see P. Schlag, ‘Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction’, (1988) 40 Stanford Law Review 929.

14 This is a point I owe to one of the anonymous reviewers.

15 The discussion that follows is restricted to a limited sample of international legal discourses, namely those found in Western Anglo-American scholarship. As a result, it does not prejudge anything about the structure of international legal discourses in other parts of the world.

16 On this distinction see G. J. Postema, Legal Philosophy in the Twentieth Century: The Common Law World (2001), 390–3; R. Dworkin, Law’s Empire (1986). See also A. Anaya, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (2015); J. d’Aspremont, ‘Sources in Legal Formalist Theories: The Poor Vehicle of Legal Forms’, in S. Besson and J. d’Aspremont (eds.), Oxford Handbook on the Sources of International Law (2017), 365.

17 There are, of course, huge jurisprudential problems with the idea of ‘rule-ness’. See generally C. R. Sunstein, Leal Reasoning and Political Conflict (1996), 130–5. In particular, the ‘rule-ness’ of the ‘rule of recognition’ is contested. See F. Schauer, Playing by the Rules (1991), 199; see also F. Schauer, ‘Amending the Presuppositions of a Constitution’, in S. Levinson (ed.), Responding to Imperfection (1995), 145, at 150–1; F. Schauer, ‘Is the Rule of Recognition A Rule?’, (2012) 3 Transnational Legal Theory 1; A. W. B. Simpson, ‘The Common Law and Legal Theory’, in A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence (1973), 77. The authority or ‘rule-ness’ of the constraints on interpretation is equally contested. If construed as rules by the mainstream international legal scholarship, such constraints on content-determination interpretation correspond to what Fiss calls ‘disciplining rules’, see O. Fiss, ‘Objectivity and Interpretation’, (1982) 34 Stanford Law Review 739. See, contra, S. Fish, ‘Fish v. Fiss’, (1984) 36 Stanford Law Review 1325, at 1336; On the specific problem of infinite regress associated with rule-ness, see I. Venzke, ‘Post-Modern Perspectives on Orthodox Positivism’, in J. Kammerhofer and J. d’Aspremont, International Legal Positivism in a Post-Modern World (2014), 182; see also G. Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, (2010) 21 European Journal of International Law 509, at 534; F. Zarbiyev, Le discours interprétatif en droit international contemporain (2015), 28–35; A. Bianchi, ‘The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (2015), 34, at 35–6.

18 Whilst this seems self-evident today, this has not always been the case. In this respect, it is worth recalling the doubts expressed by some of the drafters of the Vienna Convention on the Law of Treaties. See ILC, ‘726th Meeting’, 1964 YILC, Vol. I, 20–1, para. 15; see also J. Klabbers, ‘Virtuous Interpretation’, in M. Fitzmaurice et al. (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (2010), 17, at 17–18. On these earlier doubts in the codification of rules on interpretation, see F. Zarbiyev, supra note 17, at 23–8;

19 For a similar reading of the mainstream scholarship see A. Bianchi, ‘Textual Interpretation and (International) Law Reading: The Myth of (in)Determinacy and the Genealogy of Meaning’, in P. Bekker (ed.), Making Transnational Law Work in the Global Economy – Essays in Honour of Detlev Vagts (2010), 34, at 35: ‘current reflection of mainstream international legal scholarship remains imbued with traditional rule-based approaches to legal interpretation’; see also Zarbiyev, supra note 17, at 23–35.

20 A few examples can be provided here: see J. Brierly, ‘The Basis of Obligation in International Law’, in H. Lauterpacht and C. H. M. Waldock (eds.), The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly (1959), 1, at 10; P Guggenheim, Traité de droit international public (1953), 6–8; P. Weil, ‘Le droit international en quête de son identité – cours général de droit international public’, (1992) 237 Recueil des cours 131; A. D’Amato, ‘The Concept Of Special Custom In International Law’, (1969) 63 American Journal of International Law 211; T. Nardin, Law, Morality and the Relations of States (1983), 172. The same idea of ‘rule-ness’ also imbues those commonly heard statements that Art. 38 is declaratory of general international law, see A. Pellet, ‘Article 38’, in A. Zimmermann et al. (eds.), The Statute Of the International Court of Justice: A Commentary (2012), 750; G. Abi-Saab, ‘Les sources du droit international: essai de déconstruction’, in M. R. Montaldo and E. J. de Aréchaga (eds.), Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga (1994), 29–49; D. J. Bederman, Custom as a Source of Law (2010), 137. It is noteworthy that Michael Wood uses quotation marks when he refers to the rules for the formation of customary international law, see M. Wood, ‘What Is Public International Law? The Need for Clarity about Sources’, (2011) 1 Asian Journal of International Law 205, at 213.

21 In fact, most of the studies produced on the interpretation of treaties in recent years construe the doctrine of interpretation as a set of rules found in the 1969 and 1986 Vienna Conventions on the Law of Treaties. For a review of recent works on interpretation see M. Waibel, ‘Demystifying the Art of Interpretation’, (2011) 22 European Journal of International Law 571; see also the works cited by A. Bianchi, D. Peat and M. R. Windsor (eds.), Interpretation in International Law (2015); for an approach that construes rules on interpretation as guiding principles or directives see I. Van Damme, Treaty Interpretation by the WTO Appellate Body (2009), 35. International courts and tribunals have endorsed a similar position. Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Merits, Judgment of 3 February 1994, [1994] ICJ Rep. 6, para. 6; Kasikili/Sedudu Island (Botswana v. Namibia), Merits, Judgment of 13 December 1999, [1999] ICJ Rep. 1045, at 1059; LaGrand Case (Germany v. United States of America, Merits, Judgment of 27 June 2001, [2001] ICJ Rep. 466, at 501, para. 99; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, para. 94; see also Award in the Arbitration regarding the Iron Rhine Railway (Belgium/Netherlands) (2005) 27 RIAA 35 62, para. 45; Appellate Body, Japan – Alcoholic Beverages, II WT/DS8,10-11/AB/R (1996), Part D, 10–12; WTO AB Report, United States – Standards for Reformulated and Conventional Gasoline WT/DS2/AB/R) (1996), 16–17; Golder v. United Kingdom (App. No. 4451/70) (EctHR, 21 February 1975), para. 32.

22 On the idea that this sort of attitude does not come with any hypocrisy or bad faith see J. Frank, Law and the Modern Mind (2009), at 10, 94–5 (comparing the world of lawyers to children’s magic world).

23 That self-referentiality is used to evade evidentiary questions is something found in myths too. See F. Ost, Raconter la loi: aux Sources de l’imaginaire juridique (2004), 77–81.

24 In that sense too, the hall of mirrors performs the same function as myths. See R. Barthes, Mythologies (1957), 252. In the same vein see H. White, Metahistory: The Historical Imagination in 19th-Century Europe (2014), 51. See also M. Foucault, L’archéologie du savoir (1969), 14: ‘le document était toujours traité comme le langage d’une voix maintenant réduite au silence’.

25 See generally P. Sloterdijk, Après nous le déluge (2016) (for whom the self-referentiality of modernity is what supports modernity’s futurism and anti-genealogism).

26 On the idea of legalism as a surrender outside the context of the sources of international law see G. Simpson, ‘On the Magic Mountain: Teaching Public International Law’, (1999) 10 European Journal of International Law 70, at 76.

27 This dualism unsurprisingly forces international lawyers to create hybrid constructions like Soft Law, which reinforces the duality rather than contests it. On this question see P. Schlag, ‘The De-Differentiation Problem’, (2009) 41 Continental Philosophy Review 35.

28 T. W. Adorno and M. Horkheimer, Dialectic of Enlightenment (1997), 24; T. W. Adorno, Negative Dialectics (1973). On this aspect of Adorno’s work see also the remarks of F. Jameson, Late Marxism: Adorno or the Persistence of the Dialectic (2007), at 20–1, 25–34. See also M. Foucault, supra note 24, at 23, 205.

29 Bourdieu, Cf. P., ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805, at 849 Google Scholar.

30 M. Foucault, supra note 24, at 254.

31 Latour, B., Nous n’avons jamais été modernes: essai d’anthropologie symétrique (1997), 57, at 59 Google Scholar.

32 Jean-François Lyotard, La condition postmoderne (1979), 13, at 59. See also T. W. Adorno and M. Horkheimer, supra note 28, at 7; K. Jenkins, Re-thinking History (2003), 82; P. Schlag, ‘The Empty Circles of Liberal Justification’, (1997) 96 Michigan Law Review 19–20; P. Sloterdijk, supra note 25, at 59, 63.

33 F. Hoffman, ‘International Legalism and International Politics’, in A. Orford and F. Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (2016), 961. For a different use of liberalism in international legal thought by reference to a certain configuration of the international society as a collection of liberal democracies see D. Joyce, ‘Liberal Internationalism’, in Orford and Hoffmann, ibid., 471.

ibid.

34 J. N. Shklar, supra note 8, at viii, 1–28.

35 Liberal patterns of legal reasoning in international legal thought and practice have been the object of thorough studies it is of no avail to return to it her. See, generally, M. Koskenniemi, From Apology to Utopia – The Structure of International Legal Argument (2006); see also M. Koskenniemi, ‘The Politics of International Law’, (1990) 1 European Journal of International Law 4, at 5–7.

36 Liberal patterns of legal reasoning in international legal thought and practice have been the object of thorough studies; it is of no avail to return to it here. See, generally, M. Koskenniemi (2006), supra note 35; see also M. Koskenniemi (1990), supra note 35.

37 For instance, the customary character of the doctrine of interpretation could be challenged from the very perspective of the doctrine of sources of international law. Indeed, if the doctrine of customary international law is conventionally applied, it is not at all certain that the constraints on interpretation of international law meet the traditional requirements for the identification of customary rules. First, it seems that the practice is mostly that of authoritative judicial bodies in their own right. It is true that some of them constitute organs of international organizations. Yet, it is not clear that such a practice qualifies as one attributable to subjects of international law for the sake of customary law formation. Second, it is not obvious that the ‘anthropomorphic’ requirement of opinio juris can ever be extracted from the attitude of those international courts and tribunals that have been applying – albeit religiously – the rules on interpretation. Thirdly, it is not certain that those rules on interpretation could ever pass the elementary ‘Continental Shelf’ test whereby any potential standard is required to be of a ‘fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law’ to ever generate customary law, see North Sea Continental Shelf Case (Germany v. Denmark), Merits, Judgment of 20 February 1969, [1969] ICJ Rep. 3, para. 72; see also Asylum (Colombia/Peru), Merits, Judgment of 20 November 1950, [1950] ICJ Rep. 266, para. 277; in this respect, it does not seem controversial to say that the rules on interpretation do not dictate any specific behaviour to states and international organizations. Moreover, the specific interpretive constraints they put forward remain rather loose and vague. For all these reasons, it seems implausible that the unanimous claims about the customary status of the interpretive constraints found in the VCLT would ever survive a careful application of the orthodox doctrine of customary law.

38 In the same vein see J. d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, (2014) 84 British Yearbook of International Law 103.

39 For a critical review of the literature on international law-making see J. d’Aspremont, ‘Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship’, (2009) 46 Vanderbilt Journal of Transnational Law 1119.

40 It is well-known that for Carl Schmitt, the making of concepts such as sovereignty or community originated in a genesis that witnessed an arbitrary intervention ex nihilo. See C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1985), 38.

41 Jessup, P., A Modern Law of Nations: An Introduction (1956), 43;Google ScholarMugerwa, N.Subjects of International Law’, in Sørensen, M. (ed.), Manual of Public International Law (1968), 250;Google ScholarO’Connell, D. P., International Law (1970), 284;Google ScholarO’Connell, D. P., International Law for Students (1971), 120 Google Scholar.

42 See, e.g., J. Lorimer, Principes de droit international (1884).

43 See, e.g., T. D. Woolsey, International Law (1877), 49; H. Wheaton. Elements of International Law (1836), 62; F. von Martens, Traité de droit international (1883), 273; T. J. Lawrence, The Principles of International Law (1923), 48; W. E. Hall, A Treatise on International Law (1890), 18.

44 See, e.g., L. Le Fur, Précis de droit international public, (1937), 64; H. Lauterpacht, Recognition in International Law (1947), 26; for a different reading see Grant, who claims that the references to Montevideo to articulate claims on statehood and recognition started in the 1940 s – T. D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, (1999) 37 Columbia Journal of Transnational Law, 403, at 414; see also the declaration of the United Kingdom of 24 August 1948, reproduced in ILC, ‘Preparatory study concerning a Draft Declaration on the Rights and Duties of States – Memorandum submitted by the Secretary General on Fundamental Rights and Duties of States’, UN Doc. A/CN.4/2, 15 December 1948, 185–6 (according to which there is no accepted definition).

45 See the text of the draft conclusions on identification of customary international law adopted by the Commission on first reading, ILC, ‘Draft report: Chapter V – Identification of Customary International Law’, 68th session’, UN Doc. A/CN.4/L.883/Add.1, 2016. See also ILC, ‘Third report on the identification of customary international law’, UN Doc. A/CN.4/682, 27 March 2015, para. 15. The claim of a fragmentation of the doctrine of customary law has been rejected by the International Law Commission which has continued to see unity in the practice: ILC, ‘First Report of the Special Rapporteur, Sir Michael Wood’, 65th session, A/CN.4/663, 17 May 2013, para. 19: unity – no fragmentation. See also ILC, ‘Second Report on Identification of Customary International Law by the Special Rapporteur Michael Wood’, UN Doc. A/CN.4/672, 22 May 2014, para. 28. Only a difference in interpretation and application (second report, para. 28).

46 See, e.g., D. J. Bederman, Custom as a Source of Law (2010), 135, 137, 166 (at page 137 he writes that custom ‘involves a searching analysis of what has been taken as a canonical set of elements for the proof of any customary international law norm: ICJ Statute Article 38’s requirements of a “general practice” of states, which is “accepted as law”’). In the same vein, A. Pellet, ‘Article 38’, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice (2002), 813. For some examples see M. H. Mendelson, ‘The Formation of Customary International Law’, (1998) 272 Collected Courses of the Hague Academy on International Law 159, at 187; I. Brownlie, Principles of Public International Law (2003), 6; A. Cassese, International Law (2005), 156.

47 Alphonse Rivier is credited with the first use of the modern concept of opinio juris as an essential element of custom. See A Rivier, Principes du droit des gens (1896), 35. For a recognition of such paternity see A. Carty, Philosophy of International Law (2007), 50.

48 In the same vein, C. Tams, ‘Meta-Custom and the Court: A Study in Judicial Law-Making’, (2015) 14 Law and Practice of International Courts and Tribunals 51, at 54–7.

49 A. Pellet, supra note 46.

50 On the idea that the tradition is constantly interpreted and changed see A. MacIntyre, Whose Justice? Which Rationality? (1988), 359–65.

51 J.-F. Lyotard, supra note 32, at 7–8.

52 R. Rorty, Consequences of Pragmatism, (2011), 166; T. W. Adorno and M. Horkheimer, supra note 28; J.-F. Lyotard, supra note 32; E. Laclau, Emancipation(s) (2007); P. Sloterdijk, Critique of Cynical Reason (1988).

53 P. Schlag, supra note 32; D. Kennedy, The Rise and Fall of Classical Legal Thought (1998); M. Foucault, ‘Qu’est-ce que les Lumières?’, in P. Rabinow (ed.), The Foucault Reader (1984), 32.

54 See M. Koskenniemi’s famous plea for a culture of formalism: The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002), 502–9. M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed.), International Law, (2006), 57, at 69–70. See also M. Koskenniemi and C. Schmitt, ‘Hans Morgenthau and the Image of Law in International Relations’, in M. Byers (ed.) The Role of Law in International Politics: Essays in International Relations and International Law (2000), 17, at 32–3. For an illustration of the debate that this notion has brought about see, among others, E. Jouannet, ‘Présentation critique’, in M. Koskenniemi, La Politique du droit international (2007), 7, at 32–3. See also I. de la Rasilla del Moral, ‘Martti Koskenniemi and The Spirit of the Beehive in International Law’, (2010) 10 Global Jurist; J. von Bernstorff, ‘Sisyphus was an International Lawyer: On Martti Koskenniemi’s “From Apologia to Utopia” and the Place of Law in International Politics’, (2006) 7 German Law Journal 1015, at 1029–31; J. A. Beckett, ‘Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project’, (2006) 7 German Law Review 1045; see also the book review of M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002) by N. Tsagourias, ‘BOOK REVIEWS – Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960’, (2003) 16 Leiden Journal of International Law 397, at 398–9.

55 Compare with R. Unger, The Critical Legal Studies Movement (2015), 119 (who speaks of a priesthood that had lost their faith and kept their job).

56 P. Schlag, supra note 32, at 8.

57 Emphasizing the contingency of law is one of the virtues of counter-factual thinking as promoted by Ingo Venzke; see Venzke, supra note 4.

58 See generally R. Unger, supra note 3.

59 H. White, Tropics of Discourse: Essays in Cultural Criticism (1978), 126–7. On the idea that form is the substance in modern legal thought see P. Schlag, supra note 32. See also P. Schlag, supra note 13, at 959.

60 As Pierre Schlag has argued, lawyers are constantly called upon to choose between interpretations, even at the level of their modes of legal reasoning. This is why, he explains, lawyers are not free. See P. Schlag, ‘Normativity and the Politics of Form’, (1991) 139 University of Pennsylvania Law Review 801, at 807.

61 J.-F. Lyotard, supra note 32, at 8.

62 Schlag, P., ‘Normative and Nowhere to Go’, (1990) 43 Stanford Law Review, 167 CrossRefGoogle Scholar, at 180–1.

63 Derrida famously understands law as being mystical by reference to ‘a silence walled up in the violent structure of the founding acts’. He adds ‘the founding or grounding, the positing of the law cannot by definition rest on anything but themselves, they are themselves a violence without ground’. See J. Derrida, ‘Force of law – the “Mystical Foundation of Authority”’, in G. Anidjar (ed.), Acts of Religion – Jacques Derrida (2002), 242. Pierre Bourdieu sees a form of violence in the formalism of law; for him, to submit to the power of form is to submit to ‘the symbolic violence’. C. Miéville, Between Equal Rights. A Marxist Theory of International Law (2005), 286; A. Anghie, Imperialism, Sovereignty and the Making of International Law (2004), 6. See also P. Schlag, Laying Down the Law (1996), 147. Cf. the notion of symbolic violence developed by Bourdieu: See P. Bourdieu and L. Wacquant, An Invitation to Reflexive Sociology 1992), 15; P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805, at 850. See the remarks of J. D. Schubert, ‘Suffering/Symbolic Violence’, in M. Grenfell (ed.), Pierre Bourdieu – Key Concepts (2012), 179–94.

64 P. Schlag, supra note 63, at 146.

65 See P. Bourdieu, ‘Force of Law’, supra note 63, at 844. See also M. Foucault, Surveiller et punir (1975), 35.

66 J.-F. Lyotard, supra note 32, at 707; B. Latour, supra note 31, at 70, 83.

67 This finding is widely supported and documented in philosophy and critical theory. For instance, such confinement is what Barthes famously identified as the ‘tragedy’ of writing (R. Barthes, Le degré zéro de l’écriture (1972), 66), which, he says, permeates any revolutionary move (ibid., at 67). In the same vein, Hannah Arendt has convincingly shown how revolutionaries constantly reclaim/seize upon a faraway past with a view to justifying the uniqueness of their revolutionary moment and their rupture with a more immediate past (see the critical remarks of H. Arendt, On Violence (1970)). In the context of critical historiography, Hayden White has more specifically demonstrated how every discipline is made up of (and organized around) a set of restrictions on thoughts and imagination that inevitably repress imagination (H. White, supra note 59, at 126–7). This is a contention that has also been articulated by Alasdair MacIntyre (A. MacIntyre, After Virtue: A Study in Moral Theory (2007)). Judith Butler has similarly shown us that the performativity of any critical performance in the present is always dependent on the mobilization of a certain past and of a normative heritage (J. Butler, ‘Critically Queer’, (1993) 1 GLQ: A Journal of Lesbian and Gay Studies 17, at 24). The finding of such a confinement of critique to the categories and vocabularies of its object is found in critical legal literature too: P. Schlag,‘“Le hors de texte, c’est moi”: The Politics of Form and the Domestication of Deconstruction’, (1990) 11 Cardozo Law Review 1631; M. Xifaras, ‘Qu’est-ce que la critique?’ (on file with the author).

ibid.

68 B. Latour, supra note 31, at 83 ; M. Xifaras, ‘Qu’est-ce que la critique?’ (on file with the author). This is also a charge occasionally made against critical legal thinking which has frequently overstated the novelty of its work. In this respect see S. Marks, ‘False Contingency’, (2009) 62 Current Legal Problems 1. See also F. Johns, ‘Critical International Legal Theory’, in J. Dunoff and M. Pollack (eds.), International Legal Theory: Foundations and Frontiers (forthcoming), also available as University of New South Wales Law Research Series Paper No. 18-44, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=3224013.

69 On the idea that international legal discourses are always continued despite all the problems associated with international law and the perpetual feeling of crisis see F. V. Kratochwil, supra note 10, at 12; C. Reus-Smit, ‘The politics of International Law’, in C. Reus-Smit (ed.), The Politics of International Law (2004), 23; E. Laclau, Emancipation(s) (2007), 103.

70 Compare with J. Frank, supra note 22, at 127 (‘If an illusion helps men live, if by acting on an erroneous dogma, men arrive at valuable results, for the most part unmixed with evil, then to insist upon exposing the falsity of the illusion or dogma is at best pedantry or bad manners and at worst malicious mischief or sadistic morbidity. If then the illusion or dogma of legal certainty were essentially useful, to attack it would be inexcusable, regardless of its patent deviation from reality.’).

71 B. Latour, supra note 31, at 77.

72 This is the common charge of Rorty against Foucault, Derrida and White, who have continued Nietszche’s abandonment of the search for truth and an Archimedean standpoint. Rorty considers their position to be the expression of pragmatism. See R. Rorty, supra note 52, at 150–1.

73 See M. Foucault, supra note 24, at 39: ‘Ces formes préalables de continuité, toutes ces synthèses qu’on ne problématise pas et qu’on laisse valoir de plein droit, il faut donc les tenir en suspens. Non point, certes, les récuser définitivement, mais secouer la quiétude avec laquelle on les accepte ; montrer qu’elles ne vont pas de soi, qu’elles sont toujours l’effet d’une construction dont il s’agit de connaître les règles et de contrôler les justifications …’

74 J.-F. Lyotard, supra note 32, at 8–9.

75 On the pessimism that can come with the postmodern condition, see ibid., 65–8.

ibid.

76 See the story about life in a hall of mirrors written by Hirai Taro under the pseudonym Edogawa Rampo, translated into English under the title ‘Hell of Mirrors’, in E. Rampo, Japanese Tales of Mystery & Imagination (1956), and republished in E. Rampo, The Edgar Allan Poe of Japan – Some Tales by Edogawa Rampo – With Some Stories Inspired by His Writings (2011).

77 See generally R. Unger, supra note 3. See also M. Foucault, supra note 24, at 39–43.

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Three international lawyers in a hall of mirrors
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Three international lawyers in a hall of mirrors
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Three international lawyers in a hall of mirrors
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