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Enchanted by the Tools? An Enlightenment Perspective

Published online by Cambridge University Press:  31 December 2019

Martti Koskenniemi
Martti Koskenniemi*
Affiliation:
(University of Helsinki), Member of the American Academy of Arts and Sciences.
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Extract

“In this context the proposition that tools are prolongations of human organs can be inverted to state that the organs are also prolongations of the tools.”

Type
Twenty-First Annual Grotius Lecture
Information
Proceedings of the ASIL Annual Meeting , Volume 113 , 2019 , pp. 3 - 19
Copyright
Copyright © 2019 by The American Society of International Law

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Footnotes

Martti Koskenniemi of the University of Helsinki and discussant Anne Orford of the University of Melbourne Law School provided the Twenty-First Annual Grotius Lecture on Wednesday, March 27, 2019, at 5:00 p.m.*

*

These lectures will also be published in the American University International Law Review (AUILR), forthcoming 2020. Note for readers: this lecture reflects the style conventions of the AUILR as it is published in both publications.

This was the “Grotius Lecture” given at the Annual Meeting of the American Society of International Law on March 26, 2019. I have preserved some of the spoken character of the lecture but also amplified it by passages from my T.M.C. Asser Lecture of 2019, “International Law and the Far Right: Reflections on Law and Cynicism” (published with T.M.C Asser Press 2019).

References

1 Max Horkheimer, Traditional and Critical Theory, in Critical Theory: Selected Essays, 188, 201 (1972).

2 Theodor Adorno & Max Horkheimer, The Dialectic of the Enlightenment xi (1974). Despite the power of that work, a good argument can be made so as to historicize it as an analysis of the mid-twentieth century situation of total war and the authoritarian turn in liberal-democratic societies. Although much of its analysis is still relevant, this is perhaps not true of the suggestion of state capitalism as the final form of liberal society.

3 Texts about “legitimacy” in which political and legal theorists (but rarely international lawyers) rehearse these topics within the conventions of analytical jurisprudence have been an odd outlier. See, e.g., Allen Buchanan, The Legitimacy of International Law, in The Philosophy of International Law (Samantha Besson & John Tasioulas eds., 2010).

4 Samuel Moyn, Legal Theory Among the Ruins, in Searching for Contemporary Legal Thought, 99, 101 (Justin Desautels-Stein & Christopher Tomlins eds., 2017) [hereinafter Moyn, Legal Theory Among the Ruins].

5 Michel de Montaigne, The Complete Essays, 353 (1993).

6 One of the reasons for the outdated and unhelpful character of much of modern legal theory is that it tends to assume a fundamental opposition between “positivism” and “natural law.” Lawyers such as Montaigne or Bodin were, however, both simultaneously finding the explanation for binding authority from natural (and perhaps ultimately divine) law while they deemed its content to be fixed in “positive” enactments by existing authority. “Naturalism” and “positivism” presuppose the correctness of each other (one answers the question of the binding force, the other of the content of the law). That is why a legal theory that presupposes their opposition goes nowhere. As rhetorical choices, however, the two have their sense, the one being more persuasive when fundamental questions about authority arise (at moments of “revolution,” typically), the other when addressing well-established, stable institutions.

7 Jean-Jacques Rousseau, The Social Contract, in The Social Contract and the First and Second Discourses, 151, 156 (Susan Dunn ed., 2002).

8 See Martti Koskenniemi, International Law as “Global Governance,” in Searching for Contemporary Legal Thought, supra note 4, 199 (Justin Desautels-Stein & Christopher Tomlins eds., 2017).

9 Immanuel Kant, Kant's Political Writings, 54 (Hans Reiss ed., 1971).

10 Immanuel Kant, Groundwork of the Metaphysics of Morals, 38 (Mary Gregor ed., 1998).

11 See generally Peter Sloterdijk, Critique of Cynical Reason (1987).

12 Wolfgang Friedmann, The Changing Structure of International Law, 19 (1964).

13 Id. at 365–66.

14 Id. at 376.

15 See generally Thomas M. Franck, Fairness in International Law and Institutions (1995).

16 Moyn, Legal Theory Among the Ruins, supra note 4, at 101–02.

17 Andrew Lang, World Trade Law after Neoliberalism: Reimagining the Global Economic Order, 221, 229, 230, 270 (2011); Anne Orford, Theorizing Free Trade, in Oxford Handbook of the Theory of International Law, 731–33 (Anne Orford & Florian Hoffmann eds., 2016).

18 World Development Report 1997: The State in a Changing World, 6, 61–62 (1997).

19 Marcel Gauchet, L'avènement de la démocratie: Le nouveau monde, 521–604 (2017).

20 See Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 15 (2005).

21 See Timothy Snyder, The Road to Unfreedom: Russia, Europe, America 7 (2018).

22 See U.N. Secretary-General, Fragmentation of International Law: Difficulties Arising From The Diversification and Expansion of International Law, ¶¶ 21–26, U.N. Doc. A/CN/4/L.682 (April 13, 2006); see also Anne-Charlotte Martineau, Le débat sur la fragmentation du droit international: Une analyse critique (2015).

23 David Kennedy, A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (2016).

24 See Jeffrey L. Dunoff, How to Avoid Regime Collisions, in Contested Regime Collisions: Norm Fragmentation in World Society, 58–70 (Kerstin Blome, Andreas Fischer-Lescano, Hannah Franzki, Nora Markard & Stefan Oeter eds., 2016).

25 See Jonathan Bonnitcha, Lauge N. Skovgaard Poulsen & Michael Waibel, The Political Economy of the Investment Treaty Regime 155–79 (2017).

26 Dani Rodrik, Economics Rules: Why Economics Works, When It Fails, and How to Tell the Difference, 17 (2015).

27 Hannah Fingerhut, Republicans Skeptical of Colleges’ Impact on U.S., but Most See Benefits for Workplace Preparation, Pew Res. Ctr. (July 20, 2017), http://www.pewresearch.org/fact-tank/2017/07/20/republicans-skeptical-of-colleges-impact-on-u-s-but-most-see-benefits-for-workforce-preparation. See also Tom Nichols, How America Lost Faith in Expertise, For. Aff. (Apr. 2017), https://www.foreignaffairs.com/articles/united-states/2017-02-13/how-america-lost-faith-expertise.

28 Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, 231, 233–34 (2001).

29 Didier Eribon, Returning to Reims (2013).

30 See Katherine Cramer, The Politics of Resentment: Rural Consciousness in Wisconsin and the Rise of Scott Walker 131–37 (2016); see also Katherine Cramer, The Politics of Resentment in Contemporary US Populism Conference Amsterdam, Youtube (Jan. 8, 2018), https://www.youtube.com/watch?v=My3_lb8x-gM (including an update after the 2016 election as a public lecture).

31 See Martti Koskenniemi, Hegemonic Regimes, in Regime Interaction in International Law: Facing Fragmentation, at 305, 313 (Margaret Young ed., 2011).

32 Hauke Brunkhorst, Critical Theory of Legal Revolutions: Evolutionary Perspectives, 54 (2014).

33 Gustave Rolin-Jaequemyns, De l’étude de la législation comparée et du droit international, in Revue de droit international et de législation comparée 1, 16–17 (1869). See also Martti Koskenniemi & Ville Kari, A More Elevated Patriotism: The Emergence of International and Comparative Law (19th Century), in Oxford Handbook of European Legal History, 974–99 (Heikki Pihlajamäki, Markus Dubber & Mark Godfrey eds., 2018).

34 Jan Klabbers, The Emergence of Functionalism in International Institutional Law: Colonial Inspirations, 25 Eur. J. Int'l L. 645, 674–75 (2014).

35 Alfred Zimmern, The League of Nations and the Rule of Law 1918–1935 (1936).

36 Carl Schmitt, Der Nomos Der Erde Im Völkerrecht Des Jus Publicum Europaeum (1950); Edward Hallett Carr, The Twenty Years’ Crisis 1919–1939 (1946).

37 European Convention on Human Rights, https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c= (last visited Nov. 20, 2019).

38 Mohammed Bedjaoui, Non-alignement et droit international, 151 Recueil des Cours 339, 386 (1976).

39 G.A. Res. 3201 (S-VI), Declaration on the Establishment of a New International Economic Order 3 (May 1, 1974).

40 Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 Calif. L. Rev. 1823, 1883, 1885–86 (2002).

41 Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism, 39 (2001).

42 See generally U.N. Secretary-General, Extreme Poverty and Human Rights, 2/25 U.N. Doc. A/73/396 (Sept. 26, 2018).

43 See generally Samuel Moyn, Not Enough: Human Rights in an Unequal World (2018).

44 See generally Theodor Adorno et al., The Authoritarian Personality (Verso ed., 2019) (including a new Introduction by Robert Gordon).

45 Zygmunt Bauman, Modernity and the Holocaust 6–7, 12 (1989).

46 See Ralf Dahrendorf, Remarks on the Discussion, in Theodor W. Adorno, et al., The Positivist Dispute in German Sociology, 123, 125–27, 129 (1977).

47 See Amy Allen, The End of Progress: Decolonizing the Normative Foundations of Critical Theory (2016).

48 See Jürgen Habermas, Knowledge and Human Interests (1987).

49 See Martti Koskenniemi, It's Not the Cases, It's the System, 18 J. World Inv. & Trade 343, 349, 352 (2017).

50 Joachim Pohl, Societal Benefits and Costs of International Investment Agreements: A Critical Review of Aspects and Available Empirical Evidence 71 (OECD Working Papers on International Investment, No. 2018/01, 2018). The executive summary of the Report begins its conclusion with the following caveat: “While a large number of claims have been made with respect to the societal benefits and costs of IIAs, very few of them have been empirically tested, and a few of those that have been tested have been confirmed empirically.” Id. at 4.

51 Having been involved in the setting up of the Iraqi sanctions regime in the U.N. Security Council in 1990, I can testify to the utter unpreparedness of the Council and its Secretariat, as well as the delegations, to the management of what would gradually turn out to be a disaster for the vulnerable populations in Iraq and one of the worst scandals of corruption in U.N. history, “Oil for Food.” This was an extreme case of being enchanted by the rules and the sudden ability of U.N. delegations to apply them “as they were supposed.” Martti Koskenniemi, Le Comité Des Sanctions (crée par la résolution 661 (1990) du Conseil de securité), 37 Annuaire français de droit international 119 (1991).

52 Many would suggest that the Human Development Indicators, or in some broader way the U.N. sustainable development goals, would provide a more relevant standard. See Robert Costanza, Why GDP Is Not an Accurate Measure of Economic Growth, World Economic Forum (Dec. 9, 2014), https://www.weforum.org/agenda/2014/12/why-gdp-is-not-an-accurate-measure-of-economic-growth/ (claiming that GDP is not a measure of overall societal well-being as it does not measure the “real economy,” which includes “all things that support human well-being”); see also OECD, Beyond GDP: Measuring What Counts for Economic and Social Performance 13 (2018) (arguing that countries should look “Beyond GDP” to alternative indicators to measure a country's development because GDP statistics alone do not accurately portray the health of a country).

53 In many fields of international cooperation, producing relevant empirical data is hard or impossible. The above-mentioned OECD study on the benefits and costs of IIAs, for example, laments the fact that much of the relevant data is not publicly available. Pohl, supra note 50, at 7.

54 Jürgen Habermas, Knowledge and Interest, 9 Inquiry 285, 300 (1966).

55 See Sigmund Freud, Civilization and its Discontents 968 (2018).

56 See generally Sloterdijk, supra note 11.

57 See Karl Marx, Theses on Feuerbach, in Ludwig Feuerbach and the End of Classical German Philosophy (1st ed., 1976).

58 See IPCC, Summary for Policymakers, in Global Warming of 1.5°C 10 (2018).

59 IPBES, Report of the Plenary of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services on the Work of its Seventh Session, 4 IPBES/7/10/Add.1 (May 29, 2019).

60 William J. Ripple, et al., World Scientists’ Warning of a Climate Emergency, BioScience (Nov. 5, 2019), https://academic.oup.com/bioscience/advance-article/doi/10.1093/biosci/biz088/5610806.

61 Lisa Friedman, E.P.A. Weakens Rules Governing Toxic Water Pollution from Coal Plants, N.Y. Times (Nov. 4, 2019), https://www.nytimes.com/2019/11/04/climate/coal-ash-water-pollution-trump.html.