The criticism of the scholar sheltered in her ivory tower and ignoring the real world is tenacious. Thus, she is often accused of holding herself aloof from the problems of society, making her work irrelevant and socially insignificant. Is this true for academics in international law? Is it not the case that, unlike “the preacher and the philosopher [who] defend postulates which are beyond realization in practice … the international jurist must not walk in the clouds; he must remain on the ground of what is realizable and tangible”?

The first traces of this division between “the men of thought” and “the men of action” can be found in Ancient Greece, where vita contemplativa was opposed to vita activa. Vita contemplativa represented a quest for happiness based on the renunciation of the vanities of human affairs such as wealth or honor. It necessarily involved a withdrawal from human activities. Vita activa, for its part, was a diametrically opposed model of existence, whose happiness was based on the pursuit of pleasure and honor.

Sociological analysis of international law begins from the premise that international legal rules and institutions are deeply embedded in the particular sociocultural features of certain communities. Sociological factors and processes thus form an inseparable dimension of international law, and international law is both affected by and influences such factors and processes. Sociologists of law have long emphasized that law is rooted in communities, and laws are considered by these scholars as expressive of types of those communities. Since international law emerges from and operates within diverse social groups, Emile Durkheim’s famous statement is significant also for international law scholars: society is more than the individuals who compose it; society has a life of its own that stretches beyond our personal experience. Consequently, the fundamental idea that reverberates in countless sociological studies is that the social whole of a group is greater than the sum of its parts, and knowledge about social relations cannot be derived solely from knowledge about the individuals who comprise the group.

Back in 2013 when I was preparing a proposal seeking research funding to support this archival study, I had an interesting conversation with a colleague who had migrated from England to practise and teach law in Hong Kong forty years ago. After reading my proposal, he ‘advised’ me (as a newly joined faculty member) not to conduct research that sought to condemn the English rule of law. To condemn it, he said, was easy, but in doing so I would leave out the fact that maintaining peace and order sometimes warrants a departure from the rule of law.

During his extraordinary career, Georges Abi-Saab served on the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, as a member of the WTO’s Appellate Body, as a judge ad hoc at the International Court of Justice, as an arbitrator, and as an advocate. Remarkably, he has been equally influential as a scholar and as a teacher, publishing numerous eloquent and significant books and articles, and teaching at the Graduate Institute of International and Development Studies in Geneva and at other leading universities around the globe. In this interview with Jeffrey Dunoff, Professor Abi-Saab reflected on his career, and on the complex relations between international legal theory and practice.

Jeffrey Dunoff: Perhaps we can start our discussion of the relationships between theory and practice by inviting you to reflect on the term “theory.” The volume has chapters organized by schools of thought, but this is not the only way to understand “theory.”

TWAIL scholars seek to retell, rewrite and reconfigure international law by decentering some of its central myths such as its Westphalian origins. In addition to rewriting and writing international law from third world perspectives, TWAIL scholars critically appraise international law’s doctrines, operative logics and normative commitments and assumptions. From this perspective, the third world for TWAIL is not merely a geographical space. Rather, it is a locus of enunciation of international law from third world perspectives. TWAIL’s vantage point is critical of the universalizing mission and occidental authority of Eurocentric international legal scholarship and practice. TWAIL in particular rejects Eurocentric accounts of international law that fail to account for the history of subordinated groups within it and its current consequences such as those related to climate change, poverty and other forms of violence. TWAIL is therefore an oppositional and transformative set of commitments and ideas for rethinking the international legal order.

To write of critical international legal theory (CILT) is to hunt a snark. As in Lewis Carroll’s famous poem, there is something important to be captured, but there lingers a very real possibility that its distinctive charms and potency might “vanish … away” in the telling. For like many of the bodies of work by which it has been informed, CILT does not denote any single movement, school or approach. Those identified with CILT are quite likely to reject such a label, or to opt for some alternative (“New Approaches to International Law” (NAIL), for instance, flourished during the 1990s). Those so identified often disagree about what it is that they may be up to in the international legal field, and what it is that they should aspire to achieve, even as they often collaborate with and support others so identified. As a consequence, it is far from clear that CILT exists in any consistently recognizable form.

Chapter 2 uncovers how the political censorship regime in Hong Kong evolved from punitive censorship to what I call ‘pre-emptive censorship’, a measure that imposed the mandatory daily vetting of newspaper proofs by government censors. During the China-backed large-scale strikes that occurred in 1922–1926, the colonial government faced the most serious challenge to its legitimacy to date. In response to the resulting anxiety over its continued rule in Hong Kong, the colonial government further stretched its control of the press by enacting newspaper regulations. Press control was expanded from punishing editors for what they had already published to day-to-day political vetting of the content of Chinese newspaper proofs before they were printed for sale to the public. The operations of the censors’ office produced newspapers with weird dots and crosses concealing censored material. News manuscripts banned from publication featured a big chop from the government’s Press Censorship Office, as shown on the cover of this book. The daily operation of this mysterious office, hitherto unknown to scholarship, will be described in detail in this chapter.

This chapter reviews the Transnational Legal Process approach to international law, sometimes called the “‘New’ New Haven School of International Law.” The term “School” is used here advisedly, to refer to a school of thought, belief, learning, or scholarship, often named after its place of origin, that comprises like-minded individuals who share common opinion, outlook, philosophy, or membership in the same intellectual, artistic, social, or cultural movement. Like its predecessor – the New Haven School of International Law, which arose after World War II – the Transnational Legal Process, or “New” New Haven, School of International Law of the late twentieth century traces its intellectual roots to Yale Law School in New Haven, Connecticut, historically the foremost training ground for legal academics in the United States.

But like most intellectual schools, neither school of international legal theory rooted in New Haven included all international lawyers who lived in New Haven, nor did all of the schools’ members reside there.

Chapter 1 examines the imperial silencing regime in Hong Kong from the early colonial years to the turn of the nineteenth century, a regime I call ‘punitive censorship’. The chapter details how for the first fifty years of British rule in Hong Kong following its inception in 1841, criminal prosecutions under libel law were wielded by the colonial government as the major tool against newspaper editors who criticised government officials and/or policies. Libel prosecutions aimed not only to suppress criticism of the colonial government but also to manage Britain’s geopolitical interests in East Asia, particularly its relationship with China. In addition to suppressing the Hong Kong press through judicial proceedings, the colony’s censorship regime also featured legislative measures that, for example, forbade the import of anti-colonial materials into Hong Kong

Amongst international lawyers, the approach to international law often labelled constitutionalism properly emerged at some point in the late 1990s, perhaps mostly inspired by millenarian anxieties. A short century after Oswald Spengler declared the decline of the West, and three quarters of a century after José Ortega y Gasset bemoaned the revolt of the masses marking the end of civilization, some international lawyers expressed concern about the survival of mankind, and proposed that only a reconstructed international law could come to the rescue – and quite a few of these international lawyers hailed from Germany.

This was curious, or so it seemed. The West, far from declining, had just triumphed over the East in the beginning of the 1990s. Western values (typically those endorsed by constitutionalist international lawyers) had already assumed prominence, so much so that Francis Fukuyama could famously proclaim the end of history, inspired by Germany’s national philosopher G. W. F. Hegel. And Germany itself had just been reunited (or united, as the case may be – these matters are politically sensitive).

The putative crisis of international law, today as in other eras, is inseparable from its own production of crisis. Because international law derives much of its legitimacy from its claim to address, manage, and resolve crises, traditional approaches to international law see it as the solution, not the problem. When international law is unable to respond effectively to crisis, it is often seen as “in crisis.”

What receives much less attention than international law’s failure to resolve crisis is the related role that international law plays in the production of the very crises to which it responds. We consider that production here in the context of feminist approaches to international law. We are particularly interested in the role of dominant feminist approaches in the production and maintenance of crisis through their successful calls for international legal action.