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Letter to the Editors of the Symposium†

Published online by Cambridge University Press:  27 February 2017

Martti Koskenniemi
Martti Koskenniemi*
Affiliation:
Erik Castrén Institute, University of Helsinki
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Extract

As I started to think about how to respond to your kind invitation to participate in the symposium on method in international law, and what to write to the readers of the Journal, I soon noticed that it was impossible for me to think about my—or indeed anybody’s—“method” in the way suggested by the symposium format. This was only in part because I felt that your (and sometimes others’) classification of my work as representative of something called “critical legal studies” failed to make sense of large chunks of it whose labeling as “CLS” might seem an insult to those in the American legal academy who had organized themselves in the 1970s and early 1980s under that banner. You may, of course, have asked me to write about “CLS” in international law irrespectively of whether I was a true representative of its method (whatever that method might be). Perhaps I was only asked to explain how people generally identified as “critics” went about writing as they did. But I felt wholly unqualified to undertake such a task. Dozens of academic studies had been published on the structure, history and ideology of critical legal studies in the United States and elsewhere. Although that material is interesting, and often of high academic quality, little of it describes the work of people in our field sometimes associated with critical legal studies—but more commonly classed under the label of “new approaches to international law.“1 In fact, new writing in the field was so heterogeneous, self-reflective and sometimes outright ironic that the conventions of academic analysis about “method” would inevitably fail to articulate its reality.

Type
Symposium on Method in International Law
Information
American Journal of International Law , Volume 93 , Issue 2 , April 1999 , pp. 351 - 361
Copyright
Copyright © American Society of International Law 1999

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Footnotes

*

Many thanks to Karen Engle for comments on a draft.

†

Editors’ note: This contribution was originally submitted in the form of a letter. Its salutation and complimentary closing are not reproduced here.

References

1 For overviews, see David Kennedy, A New Stream of International Law Scholarship, 7 Wis. Int’l L.J. 1 (1988); Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harv. Int’l L.J. 81 (1991); Outi Korhonen, New International Law: Silence, Defence, or Deliverance? 7 Eur. J. Int’l L. 1 (1996); and the essays in Special Issue: New Approaches to International Law, 65 Nordic J. Int’l L. (Martti Koskenniemi ed., 1996). See also David Kennedy & Chris Tennant, New Approaches to International Law—A Bibliography, 35 Harv. Int’l L.J. 417 (1994).

2 The following text draws on my Tyyli Metodina (Style as Method), which appeared in Minun Metodini 173 (Juha Häyhä ed., Helsinki 1998).

3 Dunoff and Trachtman hope to find in “law and economics” “a firmer and less subjective basis for argumentation.” Simma and Paulus opt for a positivist reliance on formal sources in order to avoid “arbitrariness or postmodern relativism.” O’Connell chooses “legal process” as a response to realists, seeking to demonstrate how law “constrain[s]” inevitable judicial lawmaking so that it “should not be done with the view of realizing a judge’s personal view of policy.” Abbott is enthusiastic about international relations inasmuch as it enables both the reproduction of the distinction between “science” and “norms” and the reliable prediction of future events and design of institutions. Wiessner and Willard maintain that “policy orientation” makes it possible to address systematically the contextual concerns of the various participants in the relevant processes, while its “conscious” taking of the observer’s standpoint does not amount to “complete subjectivization” but, on the contrary, increases critical awareness.

4 Her feminist methodologies “may clearly reflect a political agenda rather than strive to attain an objective truth on a neutral basis.”

5 See, e.g., Aulis Aarnio, Denkweisen der Rechtswissenschaft (1979).

6 See, e.g., Maarten Bos, A Methodology of International Law (1984); Shabtai Rosenne, Practice and Methods of International Law (1984).

7 As early examples, I am thinking particularly of David Kennedy, Theses about International Law Discourse, 23 Ger. Y.B. Int’l L. 353 (1980); and David Kennedy, International Legal Structures (1987); as well as the work of Duncan Kennedy and, for example, Clare Dalton’s An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997 (1985).

8 There is a nice contrast in the papers of this symposium between the tropes used to connote scientific objectivity and those for moral pathos. Objectivist associations are created by the personification of the method (instead of the lawyer) as the speaker (sometimes by the use of an informal acronym: ILP, L&E, IR—perhaps also “CLS”)—“ILP speaks,” “L&E asks,” “IR theory reminds us.” The erasure of the author’s voice is precisely the consequence “method” is expected to attain. On the other hand, all authors desist from normative closure: positivist rules receive substance through (moral) interpretation; law and process awaits morality to give substance to soft law and general standards; law and economics is silent about conditions of market access; international relations only “helps” normative analysis; and the base values of policy orientation are “posited” and not defined.

9 See also my Hierarchy in International Law. A Sketch, 8 Eur. J. Int’l L. 566 (1997).

10 Robert Y. Jennings, The Proper Work and Purposes of the International Court of Justice, in The International Court of Justice: Its Future After Fifty Years 33, 33–34 (A. Sam Muller, D. Raic & J. M. Thurénszky eds., 1997).

11 See Rosemary J. Coombe, The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy, in After Identity: A Reader in Law and Culture 251 (Dan Danielsen & Karen Engleeds., 1995).

12 I have argued this point in greater detail in Faith, Identity and the Killing of the Innocent. International Lawyers and Nuclear Weapons, 10 Leiden J. Int’l L. 137 (1997).

13 This is not to say that any other specific language would necessarily provide a more reliable or authentic translation of those experiences, fears and passions.

14 George Steiner, Language and Silence 87 (1985).

15 Such connotations are, however, culturally embedded and not fixed; hence, stylistic associations may sometimes take surprising turns. Strict formalism may sometimes be avant-garde—just as policy orientation may be the language of cultural conservatism.

16 For Bosnia’s initial team, its application and its submissions, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 1993 ICJ Rep. 3, 4–25, and 325, 326–50 (Apr. 8 & Sept. 13). For the new team and reformulated submissions, see id., Judgment, Preliminary Objections (July 11, 1996) <http://www.icj-cij.org>.

17 For brilliant examples, see David Kennedy, Spring Break, 63 Tex. L. Rev. 1377 (1985); and his Autumn Weekend, in Danielsen & Engle, supra note 11, at 191. See also the concluding reflections in Hilary Charles-worth’s contribution to this symposium, 93 AJIL 379, 392 (1999).

18 Martha Nussbaum, Love’s Knowledge: Essays on Philosophy and Literature, esp. 35–50 (1990). See also her Poetic Justice: The Literary Imagination in Public Life (1995).