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Wording in International Law

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Abstract

Since the demise of philosophical foundationalism and that of the Aristotelian idea of an inner meaning of words, scholarship about international law is no longer perceived as a mining activity geared towards the extraction of pre-existing meaning. Rather, international legal scholarship is in a state of fierce competition for persuasiveness and semantic authority. This does not elevate persuasiveness into the determinant of legality, nor does it lead to a total rejection of the internal point of view. The configuration of that competition for naming is informed by the current structure (and the membership) of the interpretative community of international law. In this competition for naming, words constitute semantic weaponry. Mention is made here of uses of words in international law to create textual economy, generate semantic instability, rough out and hone scholarly ideas, enhance textual aesthetics, yield empiricism, create straw men and preserve the argumentative character of scholarly idea, gratify oneself, boost fame and careers, and intimidate peers. It is also argued that there is nothing to rein in in the use of such semantic tactics in the interpretative community of international law, for paradigmatic revolution is meant to be permanent. It is only if international legal scholars were to lose their social identity that the competition for naming and the interpretative community of international law would vanish altogether.

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1 In the following paragraphs, interpretation is not used in the strict sense and is thus not limited to the determination of the legal effects of existing rules, but is construed in a broad sense so as to include any construction of arguments about international law.

2 It is interesting to note that the French text that is the only authoritative version goes as follows: ‘Il a pour but de favoriser le progrès du droit international . . .. En travaillant à formuler les principes généraux de la science de manière à répondre à la conscience juridique du monde civilisé.’ For some critical insights, see M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001), 39.

3 On the concept of interpretative community, see S. Fish, Is There a Text in This Class? The Authority of Interpretative Community (1982); see also S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989), 141. See also sections 2 and 5, infra.

4 In the same vein, see the remarks formulated by Venzke I., ‘Legal Contestation about “Enemy Combatants” on the Exercise of Power in Legal Interpretation’, (2009) 5 Journal of International Law and International Relations 155.

5 It should be noted that seeing the competition for naming as wordfare is not exclusive of its being simultaneously a business. The competition for naming can even be an extraordinarily lucrative business, for there are some actors in the profession who have been able to make an incredible amount of economic profit – often commercializing the unpaid craftwork of others – just by trading words. The profit they make has even allowed them to perpetuate their business model despite the compelling forces towards gratuity of the cybersphere where more and more knowledge is produced and disseminated outside the traditional money-making blueprints. For some critical remarks on these changes and how they may impact the configuration of academic publishing, see van den Herik L., ‘LJIL in the Cyberage’, (2012) 25 LJIL 1, at 1–8. See also J. d'Aspremont, ‘In Defense of the Hazardous Tool of Legal Blogging’, EJIL:Talk !, 6 January 2011, available at www.ejiltalk.org/in-defense-of-the-hazardous-tool-of-legal-blogging.

6 See the famous para. 201 of Wittgenstein L., Philosophical Investigations (translated by Anscombe G. E. M.) (2001). The abandonment of the varieties of philosophical foundationalism is described in R. Rorty's famous book, Philosophy and the Mirror of Nature, 25th Anniversary Edition (2009).

7 On the concept of interpretative community, see Venzke, supra note 4.

8 It is acknowledged here that the division of labour in the argumentative arena of international law can prove very unstable and is often fluctuating. It can even be extremely fickle at times. For instance, it is not uncommon that judges and international legal scholars engage in swaps of their roles. A recent interesting illustration is the case of the ICJ's Germany v. Italy, in which the Court seemed to behave more as a scholarly institution than an adjudicative body and gave the impression of addressing scholars rather than states. See ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 3 February 2012, available at www.icj-cij.org. On these changing of caps, see Steer C., ‘Non-State Participants in International Criminal Law’, in d'Aspremont J. (ed.), Non-State Participants in the International Legal Order (2011), 295310.

9 See I. Venzke, How Interpretation Makes International Law: On Semantic Authority, Legal Change and Normative Twists (2012); see also Venzke I., ‘The Role of International Courts as Interpreters and Developers of the Law: Working Out the Jurisgenerative Practice of Interpretation’, 34 Loyola of Los Angeles International and Comparative Law Review (2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1868423.

10 While some people have denied the existence of international law as law, the existence of the community of professionals studying international law is nowhere to be challenged.

11 This is what is called in system theory the operation of ‘autopoiesis’, namely the filtering and processing of information from the environment into the system; see Luhmann N., A Sociological Theory of Law (1985) and Law as a Social System (translated by Ziegert Klaus A.) (2003); see also G. Teubner, Law as an Autopoietic System (1992).

12 J. d'Aspremont, ‘The International Legal Scholar in Palestine: Hurling Stones under the Guise of Legal Forms? A Talk with Martti Koskenniemi and Mudar Kassis’, 19 April 2011, available at SSRN, http://ssrn.com/abstract=1846867. The concept of lawfare is said to have been coined by Dunlap C. J., ‘Lawfare Today: A Perspective’, (2008) 3 Yale Journal of International Affairs 146. On that concept, see M. Kearney, ‘Lawfare, Legitimacy and Resistance: The Weak and the Law’, available at SSRN, http://ssrn.com/abstract=1772806.

13 This has been a criticism levelled against Hart according to which his forays into Wittgenstein's philosophies should probably not be exaggerated. For instance, according to J. Raz, very little seems to have been gained in all of Hart's forays into the philosophy of language: Raz J., ‘The Nature and Theory of Law’, in Coleman J. (ed.), Hart's Postscript: Essays on the Postscript to ‘The Concept of Law’ (2001), 1, at 6. Endicott has gone even further by claiming that there is no semantic theory in Hart's work and that it is incorrect to think that Hart relied on Wittgenstein; see T. Endicott, ‘Herbert Hart and the Semantic Sting’, in Coleman, supra, at 41.

14 For an exception, see the insightful transposition by Onuf N., ‘Do Rules Say What They Do? From Ordinary Language to International Law’, (1985) 26 Harv. ILJ 385.

15 Promises or orders are considered to be illocutionary acts. Any act of asking, commanding, or promising is generally considered an illocutionary act. John Searle is said to have proposed one of the most authoritative classifications of illocutionary acts, distinguishing between assertives, directives, commissives, expressives, and declarations.

16 On the question of the normativity of rules and their ability to prescribe a standard of conduct, see d'Aspremont J., ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’, (2008) 9 EJIL 1075.

17 Such constative acts are called locutionary acts. Speech acts can thus be locutionary and illocutionary. Mention is also made of a third type of speech act, namely perlocutionary act: its actual effect is persuading, convincing, scaring, enlightening, inspiring, or otherwise getting someone to do or realize something, whether intended or not (see, generally, J. L. Austin, How to Do Things with Words (1975).

18 Ibid., at 5.

19 See the illustration provided by Linkerfalk U. in ‘State Responsibility and the Primary–Secondary Rules Terminology: The Role of Language for an Understanding of the International Legal System’, (2009) 78 NJIL 53, at 71 (‘[l]et us assume an international legal scientist publishes an article, criticising the usage of some particular legal terminology. The article announces what the author considers to be the pros and cons of the usage in question; it asserts that the provided description of the pros and cons is correct; it commits the author to maintain his position over time; and it invites other users of the international legal language to stop availing themselves of the terminology’).

20 See the work of Venzke, supra note 4.

21 As famously explained by John Searle, ‘speaking a language is engaging in a (highly complex) rule-governed form of behavior’; J. Searle, Speech Acts (1969), 12.

22 It certainly is a remarkable coincidence that these few observations appear in an issue of the Leiden Journal of International Law that simultaneously opens its pages to a symposium dedicated to Foucault Michel. His famous 1975 work on Surveiller et punir as been translated as Foucault M., Discipline and Punish (1977), 27: ‘There is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations.’ In the context of the argument made here, the work of Foucault is particularly insightful, as it shows how these power relationships work and cannot be reduced to pure domination.

23 Bourdieu P., ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 814, at 838: ‘Law is the quintessential form of symbolic power of naming that creates the things named’; see also p. 837: ‘What is at stake in this struggle is monopoly of power to impose a universally recognized principle of knowledge of the social world.’

24 On the adversarial character of the legal arena and the extent to which such an adversarial setting is determinative of the linguistic dynamics, see, generally, D. Kennedy, ‘Theses about International Legal Discourse’, 23 GYIL 353 (1980); Koskenniemi M., ‘International Law and Hegemony: A Reconfiguration’, (2004) 17 Cambridge Review of International Affairs 197, at 199. See also the remarks by Venzke, supra note 4.

25 See the famous argument by Karl Popper according to which the falsifiability of a theory is what makes it a scientific theory (meaning it can be tested through data and experiment). The rest is metaphysical. According to that criticism, law can hardly qualify as a science. See, generally, K. Popper, The Logic of Scientific Discovery (2002).

26 The argument can be made that the rhetoric of scientificity reflects the competition about apportioning weight among the various knowledge produced in the society. As argued by M. Hesselink, calling the production of a certain knowledge ‘science’ is a political decision. There is no compelling argument about why a certain research question should be more scientific than another; see M. Hesselink, ‘A European Legal Science?’, Centre for the Study of European Contract Law Working Paper Series, No. 2008/02, at 12.

27 B. Latour, Science in Action (1987).

28 Bourdieu, supra note 23, at 827.

29 See Latour, supra note 27, 40 (‘You may have written a paper that settles a fierce controversy once and for all, but if readers ignore it, it cannot be turned into a fact; it simply cannot. You may protest against the injustice; you may treasure the certitude of being right in your inner heart; but it will never go further than your inner heart; you will never go further in certitude without the help of others. Fact construction is so much a collective process that an isolated person builds only dreams, claims and feelings, not facts’).

30 Prott L. V., ‘Argumentation in International Law’, (1991) 5 Argumentation 299, at 299 (‘Persuasive discourse, or argumentation, has been a key technique in the development of international law’).

31 For a total rejection of internal determinant of legality, see Friedrich Kratochwil, according to whom legality manifests the persuasiveness of a form of argument and is a quality bestowed on rules by virtue of a given reasoning by an epistemic community trained in that legal reasoning; Kratochwil F., ‘Is International Law “Proper” Law?, (1983) 69 Archiv fur Rechts- und Sozialphilosophie 13.

32 For an attempt to preserve internal determinants of legality while acknowledging the role of external dynamics, see J. d'Aspremont, Formalism and the Sources of International Law (2011).

33 As demonstrated by Bruno Latour, it is never completely possible to describe law fully from an external perspective, since one inevitably draws on the concepts and vocabularies used by actors; Latour B., The Making of Law: An Ethnography of the Conseil d'Etat (translated by Brilman M. and Pottage A.) (2009), 260 (‘there is no stronger meta-language to explain law than the language of law itself’). Yet, at the same time, according to Latour, it is dependent on the setting and the behaviour of these actors. The internal–external distinction breaks apart. On that aspect of the work of Latour, see the remarks of K. Petroski, ‘Varieties of Post-Positivism’, Saint Louis University School of Law, Legal Studies Research Paper Series, No. 2012-03, at 17.

34 Customary international law and non-formal sources of law offer much more room for projections of power. On this aspect, see d'Aspremont, supra note 32, at 151–4, 162–70.

35 This is the reason why I am convinced that international legal positivism is not about providing means to establish authoritative interpretation. The complex theories of interpretation that have been established to provide rationality (and hence authority) to argumentative reasoning are, in my view, alien to the knowledge of international law. They are, more simply, theories of argumentation.

36 For such an endeavour, see Venzke, supra note 9, both publications.

37 Over recent years, no fewer than six monographs have been written on interpretation. For a critical review of these works, see Waibel M., ‘Demystifying the Art of Interpretation’, (2011) 22 EJIL 571, at 571–88.

38 For some critical remarks, see Greenberg M., ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’, in Marmor A. and Soames S. (eds.), Philosophical Foundations of Language in the Law (2011), 217.

39 On the sublimating role of formalism, see Bourdieu, supra note 23, at 828.

40 In my view, formalistic argumentation should be distinguished from the use of formal law-ascertainment criteria; see d'Aspremont, supra note 32.

41 In national constituencies, access to the domestic zone of the international argumentative arena is sometimes restricted by occasionally backward or obsolete formal prerequisites.

42 To illustrate that point, it suffices to recall how suspicious we are when we open a book, an article, or a working paper from someone whose name is unknown to us and who does not provide his or her professional affiliation. In such a case, and unless it comes with the recommendation of trustworthy peers or a very sexy title, there is a high chance that we do not even bother to read it. This is also why it always proves so important to mention one's affiliation on open-access repositories and databases like SSRN.

43 See Rodell F., ‘Goodbye to Law Reviews’, (1936) 23 VLR 38; Rodell F., ‘Goodbye to Law Reviews – Revisited’, (1962) 48 VLR 279.

44 This is the famous concept of ‘culture of formalism’ floated by Martti Koskenniemi; Koskenniemi, supra note 2, at 500–8. For a discussion of that concept, see E. Jouannet, ‘Présentation critique’, in M. Koskenniemi, La politique du droit international (2007), 32; see also de la Rasilla del Moral I., ‘Martti Koskenniemi and the Spirit of the Beehive in International Law’, (2010) 10 Global Jurist 1; von Bernstorff J., ‘Sisyphus as 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; Beckett J. A., ‘“Rebel without a Cause”: Martti Koskenniemi and the Critical Legal Project’, (2006) 7 German Law Review 1045; see also the book review of Koskenniemi M., ‘The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 by Nicholas Tsagourias’, (2003) 16 LJIL 397, at 398–9.

45 The variety and richness of scholarly opinions are often seen as positive consequences of the unforeseen development of legal scholarship. See the remarks of Stephens B. on the occasion of the panel on ‘Scholars in the Construction and Critique of International Law’, held on the occasion of the 2000 ASIL meeting, (2000) 94 ASIL Proceedings 317, at 318.

46 d'Aspremont, supra note 16; see also d'Aspremont J., ‘La doctrine du droit international face à la tentation de la juridicisation sans limites’, (2008) 118 RGDIP 849.

47 Ross A., ‘Tû-tû’, (1956–57) 70 Harvard Law Review 812, especially at 813. For a contemporary translation of that idea and a critical evaluation thereof, see U. Linderfalk, ‘On the Many Functions of International Legal Concepts, Part One’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1863048.

48 One of the best illustrations is probably the semantic instability that has been nurtured around the idiom of legal pluralism.

49 On the use of semantic instability in the work of J. Derrida, see Kastner F., ‘The Paradoxes of Justice: The Ultimate Difference between a Philosophical and Sociological Observation of Law’, in Perez O. and Teubner G. (eds.), Paradoxes and Inconsistencies in the Law (2005), 168–70.

50 See T. Endicott, ‘The Value of Vagueness’, in Marmor and Soames, supra note 38, at 14–30.

51 See the famous and oft-quoted assertion by P. Allott, Eunomia (2001), xxvii: ‘We make the human world, including human institutions through the power of the human mind. What we have made by thinking we can make new by new thinking.’ On this point, see the remarks of Beckett J., ‘Countering Uncertainty and Ending Up/Down Arguments: Prolegomena to a Response to NAIL’, (2005) 16 EJIL 213, especially at 214–16. See also J. Raz, Between Authority and Interpretation (2009), 31: ‘In large measure what we study when we study the nature of law is the nature of our own self-understandings . . .. It is part of the self-consciousness of our society to see certain institutions as legal. And that consciousness is part of what we study when we inquire into the nature of law.’

52 M. Greenberg, ‘How Facts Make Law’, UCLA School of Law, Public Law & Legal Theory Research Paper No. 05-22, at 173.

53 Bourdieu, supra note 23, at 839; according to Bourdieu, this is the ‘creative power of representation’.

54 Elsewhere, I have elaborated on other transformations of the thought-forming processes in our epistemic community as a result of new technologies: ‘Debating – and the culture of the critique that comes along with it – are now an integral part of the activity of being an international legal scholar. Debate has become an essential component of the production of legal thoughts. Ideas are no longer mulled over for years in an – often dusty and messy – isolated study and kept secret until the day of their solemn revelation through publication in a top-tiered international-law journal. While still being the product of a long individual cerebral effort, ideas are now shared, tested and further refined through peer-to-peer experimentation at an earlier stage of the scholarly thought-making process . . . [L]egal scholars of the 21st century have grown more faithful in the Socratic virtues of the exchange of ideas which they now see as instrumental in the mutual development and sharpening of legal thinking as a whole . . . [T]hanks to the new means of transfer of knowledge, scholarly debates have simultaneously undergone a process of deformalization. Lack of seniority no longer bars access to the experts’ debate and the implicit hierarchies of the profession have ceased to constitute compelling barriers to the expression of disagreement. Legal blogging has been both the cause and the consequence of these fundamental changes in the debating culture – and the thought-making process – of the international legal scholarship of the 21st century’; see d'Aspremont, supra note 5.

55 It cannot be excluded that the very short detour through the philosophy of language attempted in section 1 will be perceived by the reader as manifesting a similar endeavour.

56 The use of wordfare in the present contribution could be perceived as being informed by such tactics. Indeed, although Google yields some occurances of the idiom – especially with respect to videogames – the expression does not seem to be commonplace in the literature about international law.

57 See the classical examples of praetor-created idioms of ‘erga omnes obligations’ or ‘countermeasures’, which were immediately picked up by the international community.

58 On this aspect, see section 2, supra.

59 Bourdieu, supra note 23, at 837 (‘Each, with its own individual authority, seeks general recognition and thereby its own self-realization’).

60 On the idea of progress, see T. Skouteris, The Notion of Progress in International Law Discourse (2008), Chapter 3, later published as The Notion of Progress in International Law Discourse (2010).

61 On the various dimensions of this enthusiasm for the international, see Kennedy D., ‘A New World Order: Yesterday, Today and Tomorrow’, (1994) 4 Transnational Legal and Contemporary Problems 329, at 336; see also S. Marks, The Riddle of All Constitutions (2003), 146.

62 These scholars have been dubbed ‘the idealists’ by F. Megret; see Megret F., ‘International Law as Law’, in Crawford J. and Koskenniemi M. (eds.), Cambridge Companion to International Law (2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1672824, at 8–9.

63 See, e.g., P. Sands, Lawless World: America and the Making and Breaking of Global Rules (2005).

64 M. Hesselink, supra note 26, at 14.

65 In the specific case of the community of international legal scholars, it is worth noting that, because international legal scholarship is most of the time produced in the offices of publicly funded institutions and depends on public resources, salaries, as a matter of fact, can never buy frustrated egos. Unless one can complement one's scholarly activities by some lucrative counselling or arbitration, recognition is bound to remain the main driving force in the competition for naming.

66 See Ost F. and van de Kerchove M., ‘De la scène au balcon: D'où vient la science du droit?’, in Chazel F. and Commaille J. (eds.), Normes juridiques et régulation sociale (1991), 68; S. Santos, Towards a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (1995); see also Hesselink, supra note 26, at 20.

67 Cf. section 2, supra.

68 For some interesting insights about what international legal scholarship looked like at the beginning of the twentieth century through the lens of the international judiciary, see O. Spiermann, International Legal Argument in the Permanent Court of International Justice (2005); see, more generally, Koskenniemi, supra note 2, at 39 ff.

69 Cf. section 2, supra.

70 Bianchi A., ‘The International Regulation of the Use of Force: The Politics of Interpretive Method’, (2009) 22 LJIL 665.

71 Bourdieu, supra note 23, at 823.

72 Ibid., at 836.

73 Ibid., at 827.

74 Fish, Doing What Comes Naturally, supra note 3, at 141.

75 See the famous distinction drawn by Salmond between those seeking to study what the law is and those pursuing the study of what is law; J. W. Salmond, First Principles of Jurisprudence (1893), 1.

76 d'Aspremont, supra note 32.

77 For a snapshot of contemporary theories that advocate a move away from a formal model of sources, see d'Aspremont J., ‘The Politics of Deformalization in International Law’, (2011) 3 Goettingen Journal of International Law 503; see also N. Onuf, ‘Law-Making in the Global Community’, reproduced in N. Onuf, International Legal Theory, Essays and Engagements (1966–2006) (2008), 63 (arguing that what we need is not a language of sources, but a theory of law-making; a language of sources is a standardization and an artefact created by international lawyers to justify the existence of the international legal order, itself a creation of lawyers).

78 I believe that the widespread faith of international legal scholars in the systemic character of the international legal system boils down to the manifestation of a feeling of common ownership of international law as an object of study. By upgrading international law in a system, we do not only seek to make it more noble a topic to study, maybe worthy of what we consider to be a scientific study. Endowing international law with systemic virtues expresses a collective claim for monopolistic interpretative privileges by a community of professionals. In that sense, the systemic character of international law can be seen as reflecting the feeling of membership of international legal scholars in an interpretative community in the absence of any supreme interpretative authority in the field.

79 As I have argued elsewhere, such charges are not limited to the compulsory levies upon taxpayers and also include huge environmental costs; see the foreword of d'Aspremont, supra note 32.

* Editor-in-chief; Associate Professor of International Law, Amsterdam Centre for International Law (ACIL), University of Amsterdam []. The author wishes to thank Ingo Venzke, Larissa van den Herik, Yannick Radi, Bas Schotel, and Dov Jacobs for their insightful and critical remarks on an earlier version. It should also be noted that the following observations do not reflect views endorsed by the Leiden Journal of International Law and its editorial board. They are formulated by their author in his personal capacity.

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Leiden Journal of International Law
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