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Critical Scholarship and Responsible Practice of International Law. How Can the Two be Reconciled?

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Abstract

How can I as an international lawyer, conscious that international law is deeply implicated in today's global injustices and that the course of history will not be changed by any grand legal design, practice law responsibly? Taking as a point of departure my own desire not to seek comfort in the formulation of a critique of law, but to aspire to a responsible practice, I consult two quite different bodies of work: first, critical theory of law and second, recent scholarship on international law that argues a practice guided by ethics may enhance the legitimacy of international law. I turn then to my own practice of international economic law focusing on my occasional role as legal expert on the so-called megaregionals the EU aims to conclude with Canada and the United States. I propose that the debate on international economic law lacks an investigation into the role of law in shaping political economy; that this lack can be explained by the compartmentalization of expertise which leads to justification gaps with respect to projects such as the megaregionals. One way lawyers can assume responsibility is to work on closing these gaps even if it means leaving the ‘inside’ of the legal discipline. Finally, I suggest that a responsible legal practice of social change might follow Roberto Unger's call for institutional imagination. Maybe I can satisfy my wish for a transformative practice by joining forces with friends in experimenting with institutions, hoping to build an alternative political economy.

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1 H.D. Kittsteiner, Naturabsicht und Unsichtbare Hand. Zur Kritik des geschichtsphilosophischen Denkens (1980), 221 ‘If one abandons the idea to master the process [of history] devoid of content, then also the task no longer matters to submit it through “societal practice” to some imaginary state of control, but one must seek for new determinations of what it might mean to be a living being that does not escape from a history it cannot make.’ (My translation).

2 On loss of faith in legal reasoning as an experience similar to losing faith in God, see Kennedy D.W., ‘The Critique of Rights in Critical Legal Studies’, in Brown W. and Halley J. (eds.), Left Legalism and Legal Critique (2002), 178 , 191–4; for an argument that faith in international law's promise of justice characterizes international law scholarship, see D.W. Kennedy, A World of Struggles. How Power, Law, and Expertise Shape Global Political Economy (2016), 226 et seq.

3 On acceleration from a critical theory perspective, see H. Rosa, Social Acceleration. A New Theory of Modernity (2013) (original: Beschleunigung. Die Veränderung der Zeitstrukturen in der Moderne (2005)).

4 I recurrently encounter the plumber in my work on this text: Antonios Tzanakopoulos cites Vaughan Lowe's admonition to lawyers: ‘They [lawyers] offer one way of going about resolving some of the most crucial problems that face the world. But it is only one way among many. There are many times when it is much better to call upon a politician, or a priest, or a doctor, or a plumber.’ (V. Lowe, International Law (2007), 290); Tzanakopoulos A., ‘The Right to Be Free From Economic Coercion’, (2015) 5 Cambridge Journal of International and Comparative Law 616, at 633; Jan Klabbers writes: ‘It is an open question whether one can legitimately expect the plumber to do his plumbing with charity or with empathy or temperance . . .’, Klabbers J., ‘The Virtues of Expertise’, in Ambrus M., Arts K., Hey E. and Raulus H. (eds.), The Role of ‘Experts’ in International and European Decision-Making Processes. Advisors, Decision Makers or Irrelevant Actors? (2014), 82 , at 89; Joseph Weiler after listening to my doubts concerning career choices enthused about how immediately happy one can make people with plumbing, and finally Duncan Kennedy says about American pragmatists: ‘The pragmatists took Hegel completely seriously when most British thinkers thought he was at best a plumber.’ Kennedy D., ‘Left Theory and Left Practice: A Memoir in the Form of a Speech’, (2015) 5 Transnational Legal Theory 577 , at 591.

5 On theory as a form of practice, see L. Althusser, Das Kapital lesen, Vol. I (1972), 76 (original: Lire le Capital (1965)).

6 On the limits of societal transformation through adjudication, see R. Unger, What Should Legal Analysis Become (1996), 30 et seq.

7 Unger, supra note 6; R. Unger, Democracy Realized. The Progressive Alternative (2000); R. Unger, Free Trade Reimagined. The World division of Labor and the Method of Economics (2007).

8 Roberto Unger holds the ‘humanization of the impossible’ to be the leitmotif of the contemporary left in the United States as well as in Europe, see, for example, Interview by Stewart Wood with Roberto Unger on the Means and Ends of the Left, 18 November 2013, available at: www.robertounger.com/progressive.php#8.

9 Kennedy D.W., ‘When Renewal Repeats. Thinking Against the Box’, (2000) 32 NYU Journal of International Law 336; the question why international lawyers have paid so little attention to law's impact on distribution and political economy is at the centre of David Kennedy's most recent book A World of Struggles, supra note 2. Kennedy, for a few years, has been calling on international lawyers to engage with political economy, see Kennedy D.W., ‘Law and the Political Economy of the World’, (2013) 26 LJIL 7; Kennedy D.W., ‘Preface’, in Beneyto J. and Kennedy D.W. (eds.), New Approaches to International Law: The European and the American Experiences (2012), at v.

10 Duncan Kennedy in a recent reflection on his engagement in a housing law clinic at Harvard Law School noted that leftist practice and leftist theory in this experience were no strange bedfellows, that rather a number of important theoretical insights were produced from this practice, Kennedy, supra note 4, at 581, 582; see also Unger, supra note 6, at 5 (on the dialectical relationship between thinking about ideals and interests on the one hand, and practices and institutions on the other); J. Derrida, On Cosmopolitanism, in On Cosmopolitanism and Forgiveness (2005), 3, at 9 (original: Cosmopolites de tous les pays, encore un effort! (1996)) (describing the task of concretizing the idea of cities of refuge as ‘a theoretical task indissociable from its political implication (mis en oeuvre)’).

11 C. Menke, Recht und Gewalt (2011); C. Menke, Kritik der Rechte (2015).

12 Klabbers J., ‘Controlling International Organizations: A Virtue Ethics Approach’, (2011) 2 Helsinki Review of Global Governance 49 ; Klabbers J., ‘Law, Ethics and Global Governance. Accountability in Perspective’, (2013) 11 NZJPIL 309; Klabbers J., ‘Towards a Culture of Formalism? Martti Koskenniemi and the Virtues’, (2013) 27 Temple International and Comparative Law Journal 417 ; Klabbers, supra note 4; Howse R. and Nicolaïdis K., ‘Towards a Global Trade Ethics. Preliminary Building Blocks’, in Eagleton-Pierce M., Jones E., and Nicolaïdis K. (eds.), Building Blocks for a Global Trade Ethics (2009), 6 ; Howse R. and Nicolaïdis K., ‘Toward a Global Ethics of Trade Governance: Subsidiarity Writ Large’, (2016) Law and Contemporary Problems 259.

13 On the ‘embedded liberalism’ of the postwar era, see Ruggie J., ‘International Regimes, Transactions, and Change’, (1982) 36 International Organization 379 .

14 Recently, a number of legal scholars have come forward in public to offer their opinion on questions of whether the German government is legally permitted to turn away refugees at Germany's borders or legally obliged to do so; whether it is permitted to admit refugees even though another EU member state may be responsible for the administration of refugee status or even obliged to do so given systemic failures within the otherwise competent states of first entry. Of course the legal arguments offered are more sophisticated than I depict here, interpreting and defining the relationship between norms of German administrative and constitutional law, international law, EU treaty law and various acts of secondary legislation. Nonetheless, I find it astonishing how self-confidently these scholars present their respective, frequently opposing, results as a matter of legal expertise in correctly interpreting the law. A number of these interventions can be found here: verfassungsblog.de.

15 The violence of law also takes much more subtle forms than military force, of course. An example from refugee law would be the legal distinction drawn between political and economic refugees.

16 Law's violence is the subject of C. Menke, Recht und Gewalt (2011).

17 C. Menke, Kritik der Rechte (2015).

18 Menke criticizes Critical Legal Studies (CLS) for only looking at the content of rights and not their form. Quoting Karl Marx he notes that CLS never asked ‘warum dieser Inhalt jene Form annimmt’ (why this content takes that form), Menke, supra note 17, at 409, note 8 (with reference to K. Marx, Das Kapital, Vol. I [MEW, Vol. XXIII], 94 et seq.).

19 David Kennedy and Martti Koskenniemi both have provided critical analyses of international law focusing on the structure of argumentation: D.W. Kennedy, International Legal Structures (1987); M. Koskenniemi, From Apology to Utopia. The Structure of Legal Argument (1989, re-issue 2005).

20 Menke, supra note 16, at 9.

21 W. Benjamin, ‘Zur Kritik der Gewalt’, in Zur Kritik der Gewalt und andere Aufsätze (edition suhrkamp 1965), 29.

22 Menke, supra note 16, at 13–57.

23 Ibid., at 39.

24 Ibid., at 20–30.

25 According to Menke, by just looking at the appearance of violence, realists must miss the particularity of law's violence as it appears the same as the violence of revenge (ibid., at 34).

26 Ibid., at 40.

27 Ibid., 45–6.

28 ‘Der “Fluch des Gesetzes” ist es, dass die Individuen zum Eigenen, zum Selbst des Gesetzes werden’ (ibid., at 46).

29 Ibid., at 67.

30 Menke, supra note 17, at 122–7.

31 Ibid., at 9

32 Ibid., at 81 et seq.; Menke, supra note 16, at 80 et seq.

33 Menke, supra note 17, at 89 et seq.

34 Ibid., 266–307.

35 Ibid., 136 et seq.

36 For an engagement with Menke's critique of law's violence from a transnational law perspective, see A. Fischer-Lescano, Rechtskraft (2013).

37 Mieville C., ‘The Commodity-Form Theory of International Law. An Introduction17 (2004) LJIL 271; C. Mieville. Between Equal Rights. A Marxist Theory of International Law (2004).

38 E. Paschukanis, Allgemeine Rechtslehre und Marxismus. Versuch einer Kritik der juristischen Grundbegriffe (1929).

39 Mieville, ‘The Commodity-Form Theory of International Law’, supra note 37, at 274.

40 E. Jouannet, The Liberal-Welfarist Law of Nations. A History of International Law (2012).

41 S. Pahuja, Decolonizing International Law. Development, Economic Growth and the Politics of Universality (2011).

42 For Mieville the answer is in the negative, he sees ‘no prospect of any systematic progressive political project or emancipatory dynamic coming out of international law’, C. Mieville, ‘The Commodity-Form Theory of International Law’, supra note 37, at 301.

43 Menke, supra note 17, at 11,12

44 Ibid., 369–401.

45 Thus Menke rebuts Andreas Fischer-Lescano who criticizes him for stopping short of proposing a more radical transformation of law to overcome its violence, see Menke C., ‘Die Möglichkeit eines anderen Rechts. Zur Auseinandersetzung mit Andreas Fischer-Lescano’, (2014) 62 Deutsche Zeitschrift für Philosophie 136 , at 138. For Andreas Fischer-Lescano's review of Menke, see ibid., ‘Postmoderne Rechtstheorie als kritische Theorie’, (2013) 61 Deutsche Zeitschrift für Philosophie 179.

46 Ibid., at 137 (my translation, footnote omitted).

47 See also G. Teubner, Recht als autopoietisches System (1989), 29.

48 H. Müller, Wolokolamsker Chaussee I: Wald bei Moskau, in Werke Vol. V (2002), 85–96; for Menke's interpretation, see Menke, supra note 16, at 93–101.

49 While Menke agrees with Agamben's interpretation of Benjamin, as not suggesting a Schmittian suspension of the law, he disagrees, however, with Agamben's proposal to overcome law's violence by ceasing to apply the law, ceasing to judge and instead using it in other ways such as study or play. See Menke, supra note 17, at 127–30.

50 Fischer-Lescano, supra note 36.

51 Ibid., at 102.

52 Pahuja S., ‘Laws of Encounter. A Jurisdictional Account of International Law’, (2013) 1 London Review of International Law 63.

53 Ibid., 92, 93, see also Koskenniemi M., ‘International Law in Europe, Between Tradition and Renewal’, (2015) 16 EJIL 113 , at 123; D.W. Kennedy, Of War and Law (2006).

54 Korhonen O., ‘New International Law. Silence, Defence or Deliverance’, (1996) 7 EJIL 1 , at 3.

55 Ibid., at 21.

56 Ibid., at 27.

57 Pahuja, supra note 52, at 65, 66.

58 Klabbers, supra note 12.

59 Howse and Nicolaïdis, supra note 12.

60 Klabbers, ‘The Virtues of Expertise’, supra note 12, at 101.

61 Klabbers, ‘Towards a Culture of Formalism?’, supra note 12, at 425.

62 Klabbers, ‘The Virtues of Expertise’, supra note 12, at 89 (referring to H. Arendt, The Human Condition (1958)).

63 Klabbers, ‘Towards a Culture of Formalism?’, supra note 12, at 431.

64 Ibid., 429–30.

65 Howse and Nicolaïdis, supra note 12.

66 Howse and Nicolaïdis, ‘Toward a Global Ethics of Trade Governance’, supra note 12, at 6.

67 Ibid.

68 See also Howse R., ‘From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime’, (2002) 96 AJIL 94 .

69 Cf. Klabbers, ‘The Virtues of Expertise’, supra note 12, at 94.

70 Craven M., Simpson G., Marks S., and Wilde R., ‘We Are Teachers of International Law’, (2004) 17 LJIL 363.

71 Ibid., at 374.

72 For some thoughts on the different responsibilities of practitioners and scholars, see Feichtner I., ‘Realizing Utopia Through the Practice of International Law’, (2012) 23 EJIL 1143; specifically on the distinct roles of legal advisor, activist and academic, see M. Koskenniemi, ‘Between Commitment and Cynicism. Outline for a Theory of International Law as Practice’, in United Nations, Collection of Essays by Legal Advisors of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law (1999), 495.

73 See supra note 14.

74 For Menke's reconstruction of law in Aristotle's Greece, see Menke, supra note 17, at 43–6.

75 Renewed scholarly attention on money is, however, already yielding important results, see, e.g., C. Desan, Making Money. Coin, Currency, and the Coming of Capitalism (2014); D. Fox and W. Ernst (eds.), Money in the Western Legal Tradition. Middle Ages to Bretton Woods (2016).

76 T. Adorno: Minima Moralia. Reflexionen aus dem beschädigten Leben (Suhrkamp 2003 (1951)), at 42.

77 Menke C., ‘Genealogy and Critique: Two Forms of Ethical Questioning of Morality’, in Huhn T. (ed.), The Cambridge Companion to Adorno (2004), 302 at 309.

78 Klabbers suggests looking to art and literature in ‘Towards a Culture of Formalism?’, supra note 12, at 435.

79 T. Adorno, Probleme der Moralphilosophie (Suhrkamp 2010), at 258.

80 Tzanakopoulos, supra note 4.

81 Menke, supra note 17, at 11, citing Karl Marx, Kritik des Hegelschen Staatsrechts, in MEW, Vol. I, 203, at 296.

82 Menke, in revealing the depoliticizing effects of the legal form in liberalism, goes further than Koskenniemi who points out how liberalism controls the content of international law (and thus withdraws certain contents from the realm of legal change). See Koskenniemi, supra note 19, at 5, 6 and 89 et seq.

83 Although it seems to me that it is becoming customary again (especially in academia) to convene events including not a single female speaker, or ‘employing’ women as moderator, commentator or microphone-holder (or has it always been this way?).

84 Klabbers, ‘The Virtues of Expertise’, supra note 12, at 97.

85 The best studies of the agreements I have encountered so far, are studies published by civil society organizations: see, e.g., Sinclair S., Trew S., and Mertins-Kirkwood H. (eds.), Making Sense of CETA. An Analysis of the Final Text of the Canada-European Union Comprehensive Economic and Trade Agreement (2014).

86 See the TTIP and CETA negotiating mandates from the Council of the EU to the Commission.

87 For an analysis of the benefits of TTIP for the EU Commission, see Centre for Economic Policy Research, Reducing Transatlantic Barriers to Trade and Investment. An Economic Assessment (March 2013), available at: trade.ec.europa.eu/doclib/press/index.cfm?id=968.

88 For an important empirical study on the financial benefits from investment arbitration, see Harten G. v. and Malysheuski P., ‘Who Has Benefitted Financially From Investment Treaty Arbitration? An Evaluation of the Size and Wealth of Claimants’, (2016) 12 Osgoode Hall Law School Legal Studies Research Paper Series No 14.

89 See Ackerman F., ‘Still Dead After All These Years: Interpreting the Failure of General Equilibrium Theory’, (2002) 9 Journal of Economic Methodology 119; Ackerman F. and Gallagher K., ‘The Shrinking Gains from Global Trade Liberalization in Computable General Equilibrium Models. A Critical Assessment’, (2008) 37 International Journal of Political Economy 50; Raza W., Grumiller J., Taylor L., Tröster B. and Arnim R. v., ‘An Economic Assessment of the Claimed Benefits of the Transatlantic Trade and Investment Partnership’, in Scherrer C. (ed.), The Transatlantic Trade and Investment Partnership (TTIP). Implications for Labor (2014), 41; J. Capaldo, ‘The Trans-Atlantic Trade and Investment Partnership. European Disintegration, Unemployment and Instability’, Global Development and Environment Institute Working Paper No. 14-03.

90 D. Hamilton and S. Blockmans, ‘The Geostrategic Implications of TTIP’, CEPS Special Report, No 105, April 2015.

91 I. Wallerstein, World-Systems Analysis. An Introduction (2004), 25 et seq. (explaining why capitalism relies on protectionism and monopolistic features for capital accumulation).

92 On this question, see C. Cutler and S. Gill (eds.), New Constitutionalism and World Order (2014).

93 See, e.g., M. Wolf, The Economic Losers are in Revolt Against the Elites, Financial Times, 26 January 2016 (warning of the fascist threats posed by discontented ‘globalization losers’).

94 A video recording of his lecture ‘Rules of the Game in the Global Financial System’ on 10 November 2015 at Goethe University Frankfurt can be found here: www.youtube.com/watch?v=GE5_XjUaVS4.

95 J.M. Keynes, ‘Economic Possibilities for Our Grandchildren’, in Essays in Persuasion (1963), 358.

96 Obviously, it is not the content of this statement that is surprising, but rather that it was made in this particular setting and before an audience that usually does not engage in post-growth debates.

97 For a proposal to address inequality with taxation, see T. Piketty, Capital in the 21st Century (2014) (original: Le Capital au XXIe siècle 2013).

98 There are exceptions of course, one being Dani Rodrik, see D. Rodrik, The Globalization Paradox. Globalization and the Future of the World Economy (2011).

99 Kennedy, A World of Struggle, supra note 2, at 18.

100 It is no coincidence, I believe, that many of the more interesting contributions to understanding our political economy as well as thinking about alternatives these days do not come from academics, but from independent journalists who are not in the same way impeded in their thinking by disciplinary divisions. See, e.g., P. Mason, Post-Capitalism. A Guide to Our Future (2015).

101 See supra note 7.

102 See Unger, supra note 6.

103 According to Unger, both political economy and legal analysis ought to be recast as institutional imagination, see Unger, supra note 6, at 2.

104 Ibid., at 27.

105 In the aftermath of the financial crisis a number of legal projects stress the constitutive role of law; for finance see, e.g., Pistor K., ‘A Legal Theory of Finance’, (2013) 41 Journal of Comparative Economics 315 .

106 See, e.g., S. Dezalay (ed.), Lawyers in Africa: Building the State, Brokering Globalization (2016) (forthcoming).

107 Apart from the works of Menke that I discuss in this text, see also Joseph Weiler's ongoing work on values and virtues in European Union law, in which he argues, inter alia, that EU law by placing the individual at the centre produces self-centred individuals.

108 Korhonen, supra note 54, at 28.

109 See Unger, supra note 7; David Kennedy, too, is calling for institutional experimentation, see Kennedy, ‘Preface’, supra note 9, at x.

110 Fischer-Lescano points to the anarchic potential for societal appropriation of the law in the transnational constellation, see Fischer-Lescano, supra note 36, at 37 et seq.

111 Unger, Free Trade Reimagined, supra note 7, at 215 (‘Such a radicalization of the principle of democratic experimentalism can be achieved only through renovation of the narrow repertory of institutional arrangements to which contemporary societies remain bound.’); Teubner G., ‘Societal Constitutionalism and the Politics of the Common’, (2010) 21 Finnish Yearbook of International Law 2 , at 8 (‘There is no alternative but to experiment with constitutionalization.’).

112 See Unger, Democracy Realized, supra note 7, at 8.

113 I take inspiration here from The Invisible Committee, To our Friends (2015) (original: Comité invisible, A nos amis (2014)), available at: theanarchistlibrary.org/library/the-invisible-committe-to-our-friends, reflecting on how to navigate between the local and the global in social struggle:

Every declared commune calls a new geography into existence around it, and sometimes even at a distance from it. Where there had only been a uniform territory, a plain where everything was interchangeable, in the greyness of generalized equivalence, it raises up a chain of mountains, a whole variegated relief with passes, peaks, incredible pathways between friendly things, and forbidding precipitous terrain between enemy things. Nothing is simple anymore, or is simple in a different way. Every commune creates a political territory that extends out and ramifies as it grows. It is in this movement that it marks out the paths leading to other communes, that it forms the lines and links making up our party. Our strength won't come from our naming of the enemy, but from the effort made to enter one another's geography (at 78, 79).

114 Cf. Unger, Free Trade Reimagined, supra note 7, at 220 (noting that ‘a willingness to give the last word to history rather than to keep it for ourselves’ is a superstition threatening our thought).

* Associate Professor of Law and Economics at Goethe University Frankfurt [].

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Leiden Journal of International Law
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