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Psychoanalyzing International Law(yers)

Published online by Cambridge University Press:  06 March 2019

Matthew Nicholson

Abstract

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This Article reads the work of Martti Koskenniemi—arguably the most significant international legal thinker of the post-Cold War era—as an exercise in (Lacanian) psychoanalysis. Excavating the links between Koskenniemi and French psychoanalyst Jacques Lacan, and analyzing the origins of those links in Koskenniemi's debt to the Harvard branch of the American Critical Legal Studies (CLS) movement, it argues that over almost thirty years Koskenniemi has employed psychoanalytic techniques to rebuild the self-confidence of international law(yers). The success of this confidence-building project explains the acclaim Koskenniemi's work enjoys. As international law's psychoanalyst he has defined the identity of the international lawyer and mapped the structure of international legal argument, stabilizing international law's present reality by synchronizing it with narratives of its past. Any attempt to destabilize that reality or depart from present structures into an alternative future must start from an analysis of Koskenniemi's methods and it is in this sense, and not out of a more pure interest in Koskenniemi's work, that this Article deconstructs Koskenniemi's oeuvre. It situates his method, reveals his choices, and explores their limits in an effort to develop (tentative) proposals for a “new” international law(yer) and an international legal future outside the structure that Koskenniemi has mapped so effectively and affectively.

Type
Articles
Information
German Law Journal , Volume 18 , Issue 3 , 01 May 2017 , pp. 451 - 510
Copyright
Copyright © 2017 by German Law Journal, Inc. 

References

1 Fredric Jameson, The Prison-House of Language: A Critical Account of Structuralism and Russian Formalism vii (1972).Google Scholar

2 Paul Verhaeghe, On Being Normal and Other Disorders: A Manual for Clinical Psychodiagnostics 68 n.37 (2008) (quoting Jacques Lacan, Le Séminaires Livre XVII: L'Envers de la psychoanalyse (1991)).Google Scholar

3 Slavoj Žižek, Less Than Nothing: Hegel and the Shadow of Dialectical Materialism 969 (2012) (quoting and translating Nicolas Fleury, Le réel insensé: Introduction à la pensée de Jacques-Alain Miller 93–94 (2010)).Google Scholar

4 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument—reissue with new epilogue (2005).Google Scholar

5 David Kennedy, The Last Treatise: Project and Person, 7 German L.J. 982, 982 (2006). See also Jean d'Aspremont, Martti Koskenniemi, the Mainstream, and Self-Reflectivity, 29 Leiden J. Int'l L. 625 (2016) (discussing the evolution of the response to From Apology and its central role in recent debates about international legal theory).Google Scholar

6 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001).Google Scholar

7 Bardo Fassbender & Anne Peters, Introduction: Towards a Global History of International Law, in The Oxford Handbook of The History of International Law 1, 23 (Bardo Fassbender & Anne Peters eds., 2012).Google Scholar

8 See, e.g., Klabbers, Jan, International Law 13 (2013); Malcolm Shaw, International Law 45–46 (7d ed. 2014); Martin Dixon, Robert McCorquodale & Sarah Williams, Cases and Materials on International Law 12, 16 (5d ed. 2011) (extracting from Koskenniemi, From Apology, supra note 4, and web post by Koskenniemi); Andrew Clapham, Brierly's Law of Nations xii (2d ed. 2012) (“Although legal methods may … vary, understanding the deeper structures and the legal labels used to explain them is essential to seeing how international law works”).Google Scholar

9 See Cass, Deborah Z., Navigating the Newstream: Recent Critical Scholarship in International Law, 65 Nordic J. Int'l L. 341, 342 (1996) (observing “post Cold War confidence in international law has been replaced by a muted anxiety about its limitations”); Id. at 360, 383 (discussing Koskenniemi's response to the “anxiety” identified at 342); David Kennedy, The Last Treatise, supra note 5, at 990 (“He has opened up the field's professional practices for [political] contestation.”); Beckett, Jason A., Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project, 7(12) German L.J. 1045, 1045 (2006) (“Few books have attained the influence and impact of Martti Koskenniemi's From Apology to Utopia.”). Google Scholar

10 Koskenniemi is, for example, a contributor to many of the most significant edited collections. See, e.g., Koskenniemi, Martti, Projects of World Community, in Realizing Utopia: The Future of International Law 3 (Antonio Cassese ed., 2012); Martti Koskenniemi, A History of International Law Histories, in The Oxford Handbook of The History of International Law 943 (Bardo Fassbender & Anne Peters eds., 2012); Martti Koskenniemi, Transformations of Natural Law: Germany 1648–1815, in The Oxford Handbook of the Theory of International Law 59 (Anne Orford & Florian Hoffmann eds., 2016).Google Scholar

11 See Kennedy, The Last Treatise, supra note 5, at 982 (“Martti Koskenniemi's From Apology to Utopia is the most significant late twentieth century English language monograph in the field of international law … it could well turn out to have been the last great original treatise in the international law field.”); Mario Prost, Born Again Lawyer: FATU as An Antidote to the “Positivist Blues”, 7 German L.J. 1037, 1037 (2006) (“[From Apology] might very well have been the single most influential book of the last 15 years in the field of international legal theory.”).Google Scholar

12 See Koskenniemi, Martti, Curriculum Vitae, http://www.helsinki.fi/eci/Staff/Koskenniemi_CV.pdf (last visited May 17, 2017) (on Koskenniemi's practice experience).Google Scholar

13 See Anne-Charlotte Martineau, The Rhetoric of Fragmentation: Fear and Faith in International Law, 22 Leiden J. Int'l L. 1 (2009); Gerhard Hafner, Risks Ensuing from Fragmentation of International Law, UN. Doc. A/55/10, annex, 143 (2000); Tomer Broude, Keep Calm and Carry On: Martti Koskenniemi and the Fragmentation of International Law, 27 Temple Int'l & Comp. L.J. 279 (2016); Murphy, Sean D., Deconstructing Fragmentation: Koskenniemi's 2006 ILC Project, 27 Temple Int'l & Comp. L.J. 293 (2016). See also Rasulov, Akbar, From Apology to Utopia and the Inner Life of International Law, 29 Leiden J. Int'l L. 641, 646 (2016) (commenting in terms that seem to capture the relationship between Koskenniemi's fragmentation work and his work more generally, for all that Rasulov himself does not make this connection:Google Scholar

[W]hat the author of [From Apology] recognized from the very outset … was that the key to winning any kind of intra-disciplinary theoretical struggles in modern international law lies in producing not just a new set of critical-theoretical ideas accessible primarily to professional legal academics, but a new system of intellectual tools and concepts accessible above all to the community of international legal practitioners: a system of tools and concepts which the practising lawyers could use to describe and express their day-to-day professional experiences and anxieties.)Google Scholar

14 See Douzinas, Costas, The End of Human Rights: Critical Legal Thought at the Turn of the Century 297–318 (2000) (on the relevance of Lacanian psychoanalysis to the study of law); Caudill, David S., Freud and Critical-Legal Studies: Contours of Radical Socio-Legal Psychoanalysis, 66 Indiana L.J. 651, 669–74 (1991) (discussing Lacanian psychoanalysis and law); Anthony Carty, Language Games of International Law: Koskenniemi as the Discipline's Wittgenstein, 13 Melbourne J. Int'l L. 859, 867 (2012) (suggesting that Koskenniemi's 1999 text, Between Commitment and Cynicism, infra note 90, “provide[s] a window … into the psychological state of the profession”); Sahib Singh, The Critic(al Subject), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2648277 (last visited May 17, 2017), at 3 (noting that “smatterings of psychoanalytic [theory] … undergird From Apology to Utopia”); Maria Aristodemou, A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours, 25 Eur. J. Int'l L. 35 (2014) (applying Lacanian psychoanalysis to the study of international legal theory).Google Scholar

15 Aristodemou, supra note 14, at 37.Google Scholar

16 Id.: Google Scholar

[T]he message from the (nasty) Lacanian analyst is not to cure the patient's ego and return it to her well adjusted to reality—in other words, not to strengthen and perpetuate international law's self-delusions but to lead it, kicking and screaming no doubt, to finding out the bloody histories that constituted it as a subject and enable it, in short, to ‘get over itself.‘Google Scholar

See also, in the context of international criminal law, and with reference to Koskenniemi's work, Frédéric Mégret, The Anxieties of International Criminal Justice, 29 Leiden J. Int'l L. 197 (2016).Google Scholar

17 See Jameson, Fredric, Postmodernism or, The Cultural Logic of Late Capitalism 2 (1991) (“[T]he prophetic elitism and authoritarianism of the modern movement [in architecture] are remorselessly identified with the charismatic Master.”); David Kennedy, Apology to Utopia: The Structure of International Legal Argument, 31 Harvard J. Int'l L. 385, 387 (1990) (“[Koskenniemi] seems determined to narrate his discipline to its end—to write the last modern book on public international law.”).Google Scholar

18 Jameson, Postmodernism, supra note 17, at 394.Google Scholar

19 See Carty, supra note 14, at 865 (advocating “a phenomenological posture vis-à-vis reality for which new languages need to be found”).Google Scholar

20 See Nicholson, Matthew, Walter Benjamin and the Re-Imageination of International Law, 27 Law and Critique 103 (2016).Google Scholar

21 Jameson, Postmodernism, supra note 17, at 306.Google Scholar

22 See Rajagopal, Balakrishnan, Martti Koskenniemi's From Apology to Utopia: A Reflection, 7 German L.J. 1089, 1091 (2006):Google Scholar

[W]hile I agree wholeheartedly [with Koskenniemi] that international law is what international lawyers make of it, I am not sure that there is a clear consensus that all practitioners need to be international lawyers, especially in the postmodern world of the early 21st century when international law-talk is occurring at the popular level.Google Scholar

23 See Caudill, supra note 14, at 654 (“My thesis is that psychoanalytic theory offers insights with which to confront some of the problematic aspects of CLS [critical legal studies]—insights that are already contains within the radical traditions on which CLS draws.”).Google Scholar

24 Fredric Jameson, The Political Unconscious: Narrative as a Socially Symbolic Act (1981). See Nicholson, Matthew, The Political Unconscious of the English Foreign Act of State and Non-Justiciability Doctrine(s), 64 Int'l & Comp. L.Q. 743 (2015) (using Jameson's concept of the “political unconscious” in legal analysis).Google Scholar

25 Jameson, Political Unconscious, supra note 24, at 13.Google Scholar

26 Id. See also id. at 14 (“Allegory is … the opening up of the text to multiple meanings, to successive rewritings and overwritings which are generated as so many levels and as so many supplementary interpretations.”); Paavo Kotiaho, A Return to Koskenniemi, or the Disconcerting Co-optation of Rupture, 7 German L.J. 484, 485 (2006) (noting a “contradiction between the appearance and essence of Koskenniemi's work”).Google Scholar

27 Jameson, Political Unconscious, supra note 24, at 5 (“The assertion of a political unconscious proposes that we … explore the multiple paths that lead to the unmasking of cultural artifacts as socially symbolic acts.”).Google Scholar

28 Aristodemou, supra note 14, at 37.Google Scholar

29 For the most compelling readings of Koskenniemi's work in the literature, over which I claim this psychoanalytic reading has “priority,” see generally Beckett, supra note 9 (critiquing what Beckett sees as inconsistencies in Koskenniemi's work); Rasulov, supra note 13 (focusing on the importance of “Kelsenian legal positivism” and “Saussurean structuralist semiotics” in From Apology, supra note 4; Id. at 641); Justin Desautels-Stein, Chiastic Law in the Crystal Ball: Exploring Legal Formalism and its Alternative Futures, 2 London R. Int'l L. 263 (2014) (reading Koskenniemi through the work of Soren Kierkegaard); Sahib Singh, Koskenniemi's Images of the International Lawyer, 29 Leiden J. Int'l L. 699 (2016) (reading Koskenniemi through the work of Jean-Paul Sartre); Singh, The Critic(al Subject), supra note 14 (again reading Koskenniemi through the work of Jean-Paul Sartre); John Haskell, From Apology to Utopia's Conditions of Possibility, 29 Leiden J. Int'l L. 667 (2016) (focusing on the historical aspects of From Apology, supra note 4). Where relevant, in footnotes infra, I explain how my reading relates to the alternative readings offered by these authors.Google Scholar

30 Jameson, Political Unconscious, supra note 24, at 5. See also id. at x (relating to Marxist literary interpretation); Rasulov, supra note 13, at 642 (advancing an argument with a similar intention—“excavating [From Apology] from beneath the mountain of misreadings and misrememberings under which it has come to be so unceremoniously buried over the last quarter-century”—which also draws on Jameson's Political Unconscious); Singh, The Critic(al Subject), supra note 14, at 6 n.28 (making a passing reference to Jameson's Political Unconscious). Google Scholar

31 Koskenniemi, From Apology, supra note 4, at 1.Google Scholar

32 Id. at 58. See also id. at 17.Google Scholar

33 See id. at 16 (“[I]ntellectual operations [which seek to distinguish international law from the sociological and the political] do not leave room for any specifically legal discourse.”).Google Scholar

34 Id. at 17.Google Scholar

35 Id. at 513.Google Scholar

36 Id.Google Scholar

37 Koskenniemi, From Apology, supra note 4, at 515.Google Scholar

38 Id. at 16.Google Scholar

39 Id. Google Scholar

40 Id. at 59.Google Scholar

41 Id. at 511-12.Google Scholar

42 Id. at 1.Google Scholar

43 Koskenniemi, From Apology, supra note 4, at 1. See also id. at 65 (“[D]octrine is forced to maintain itself in constant movement from emphasizing concreteness to emphasizing normativity and vice versa without being able to establish itself permanently in either position.”).Google Scholar

44 Patrice Maniglier, Acting Out the Structure, in Concept and Form Volume Two: Interviews and Essays from the Cahiers pour l‘Analyse 25, 41 (Peter Hallward & Knox Peden eds., 2012) (quoting Claude Levi-Strauss, The Structural Study of Myth, in Claude Levi-Strauss, Structural Anthropology 228 (1963)). See Koskenniemi, From Apology, supra note 4, at 6 n.1, 8 n.4, and 11 n.9 (referring to two of Levi-Strauss’ major works without subjecting them to sustained analysis); see also Caudill, supra note 14, at 670 (discussing structuralism, Levi-Strauss and Lacan); Singh, The Critic(al Subject), supra note 14, at 3, 10, 14 (suggesting, with reference to Roland Barthes, that “myth” plays an important role in Koskenniemi's work without, however, defining the specific “myth,” or the function of “myth” as a concept, in Koskenniemi's work).Google Scholar

45 See Koskenniemi, From Apology, supra note 4, at 1.Google Scholar

46 See Maniglier, supra note 44, at 41; see also Frederick J Wertz, Freud's Case of the Rat Man Revisited: An Existential-Phenomenological and Socio-Historical Analysis, 34 J. Phenomenological Psychol. 47 (2003) (discussing the case of the Rat Man).Google Scholar

47 Jacques Lacan, The Neurotic's Individual Myth, 48 Psychoanalytical Q. 405, 411 (1979).Google Scholar

48 Id. at 414.Google Scholar

49 Id. at 411.Google Scholar

50 Id. See also Maniglier, supra note 44, at 42.Google Scholar

51 Lacan, Myth, supra note 47, at 411; Maniglier, supra note 44, at 42.Google Scholar

52 Lacan, Myth, supra note 47, at 412, 415.Google Scholar

53 Id. at 409.Google Scholar

54 Id. at 412.Google Scholar

55 Id. at 413; see also Maniglier, supra note 44, at 43.Google Scholar

56 Lacan, Myth, supra note 47, at 413.Google Scholar

57 Id. at 412.Google Scholar

58 Id. at 414.Google Scholar

59 Maniglier, supra note 44, at 43.Google Scholar

60 See id. Google Scholar

61 See Lacan, Myth, supra note 47, at 415 (“[T]he frustration, indeed a kind of castration of the father.”).Google Scholar

62 Id. Google Scholar

63 See Lacan, Jacques, The Subversion of the Subject and the Dialectic of Desire, in Jacques Lacan, Écrits 671, 698 (Bruce Fink trans., 2006) (“The Father the neurotic wishes for is clearly the dead Father—that is plain to see. But he is also a Father who would be the perfect master of his desire—which would be just as good, as far as the subject is concerned.”).Google Scholar

64 See Lacan, Myth, supra note 47, at 416–17.Google Scholar

65 Id. at 425.Google Scholar

66 See id. at 407.Google Scholar

67 Id. at 407–08.Google Scholar

68 See Kennedy, David, The Last Treatise, supra note 5, at 991 (“I continue to be struck … by the relative scarcity of work picking up, reworking, extending, or contesting the broad argument of From Apology to Utopia … Martti's book is rarely challenged or deeply engaged … I often have the feeling that the book's symbolic meaning has somehow overtaken its analysis.”); Jan Klabbers, Towards a Culture of Formalism? Martti Koskenniemi and the Virtues, 27 Temple Int'l & Comp. L.J. 417, 418 (2016) (commenting on Kennedy's review of From Apology: “From Apology to Utopia, or Koskenniemi's work in general, is treated as the gospel, the final word marking, as Fukuyama might be tempted to put it, ”the end of history.“ (citation omitted)); Singh, The Critic(al Subject), supra note 14, at 11 (”The image we see in From Apology to Utopia is that of a critic who aspires to less domination as his ideal, all the while constantly perpetuating a form of domination himself.“).Google Scholar

69 Maniglier, supra note 44, at 42.Google Scholar

70 Lacan, Myth, supra note 47, at 415.Google Scholar

71 Koskenniemi, From Apology, supra note 4, at 65 (emphasis in original).Google Scholar

72 See Maniglier, supra note 44, at 41–46.Google Scholar

73 David Macey, Introduction, in Jacques Lacan, The Four Fundamental Concepts of Psychoanalysis vii, xxv (Jacques-Alain Miller ed., Alan Sheridan trans., 1994).Google Scholar

74 Id. at xxiii.Google Scholar

75 See id. at xxiii–xxv.Google Scholar

76 See Douzinas, supra note 14, at 301 (“Jacques Lacan … turn[ed] Freud's story [about the origins of law in murder, crime, and violence] into a mythical structure and … read it, in a way similar to Levi-Strauss's explanation of the elementary structures of kinship.”).Google Scholar

77 See Macey, supra note 73, at xxiii.Google Scholar

78 Id. at xxiii.Google Scholar

79 Id. at xxiv.Google Scholar

80 Maniglier, supra note 44, at 39–46. See also Lacan, Subversion, supra note 63, at 676–77 (on his work, Freud, Saussure and Jakobson).Google Scholar

81 Lacan, Myth, supra note 47, at 407–08.Google Scholar

82 Id. 415.Google Scholar

83 Emmanuel Jouannet, Koskenniemi: A Critical Introduction, in Martti Koskenniemi, The Politics of International Law 1, 1 (2011) (quoting Koskenniemi's comment, in 2004, at the Sorbonne).Google Scholar

84 Maniglier, supra note 44, at 41. (“[I]t is not an isolated event which can be traumatizing but rather the kind of twisted relations that it bears with another event, which it echoes … by transforming it in a way which then makes it impossible for it not to be endlessly repeated.”); Koskenniemi, from apology, supra note 4, at 515 (“[A]ll doctrinal spheres” - emphasis in original).Google Scholar

85 Koskenniemi, From Apology, supra note 4, at 511.Google Scholar

86 Id. at 511, 515.Google Scholar

87 Id. at 515.Google Scholar

88 Id. at 549.Google Scholar

89 See Beckett, supra note 9, at 1087 (“[L]aw is not our tool; we are constructs of international legality”) (emphasis in original).Google Scholar

90 Martti Koskenniemi, Between Commitment and Cynicism: Outline of a Theory of International Law as Practice, in Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law 495 (1999).Google Scholar

91 Id. at 497 (“I shall aim at providing a somewhat impressionistic sketch of the structure of the psychological positions available to international law practitioners.”).Google Scholar

92 Id. at 498, 502–06.Google Scholar

93 Id. at 497.Google Scholar

94 Lacan, Myth, supra note 47, at 425 (“[M]ore light”).Google Scholar

95 Douzinas, supra note 14, 305 (quoting Jacques Lacan, The Function and Field of Speech and Language in Psychoanalysis, in Jacques Lacan, Écrits 197, 225 (Bruce Fink trans., 2006)) (using a different version of Lacan's text).Google Scholar

96 Jacques Lacan, Of Structure as the Inmixing of an Otherness Prerequisite to Any Subject Whatever, Lacan.com, http://www.lacan.com/hotel.htm (last visited May 17, 2017).Google Scholar

97 Id. Google Scholar

98 Koskenniemi, From Apology, supra note 4, at 568 (emphasis in original).Google Scholar

99 Id. at 8–9. See also id., at 8 n.4 (inviting the reader to “[s]ee generally Saussure (Course)”); Ferdinand de Saussure, Course in General Linguistics 9 (Charles Bally & Albert Sechehaye eds., Wade Baskin trans., 1966): But what is language [langue]? It is not to be confused with human speech [langage], of which it is only a definite part … It is both a social product of the faculty of speech and a collection of necessary conventions that have been adopted by a social body to permit individuals to exercise that faculty.Google Scholar

100 Jameson, Prison-House, supra note 1, at 17.Google Scholar

101 Koskenniemi, From Apology, supra note 4, at 9.Google Scholar

102 Id. at 9.Google Scholar

103 Jameson, Prison-House, supra note 1, at 17.Google Scholar

104 Koskenniemi, From Apology, supra note 4, at 7.Google Scholar

105 See Jameson, Prison-House, supra note 1, at 3–39.Google Scholar

106 Id. at 6 (emphasis added).Google Scholar

107 Macey, supra note 73, at xxiii.Google Scholar

108 Koskenniemi, From Apology, supra note 4, at 568.Google Scholar

109 Macey, supra note 73, at xxiii.Google Scholar

110 Jameson, Prison-House, supra note 1, at 6.Google Scholar

111 Jacques Lacan, The Freudian Thing or the Meaning of the Return to Freud in Psychoanalysis, in Jacques Lacan, Écrits 334, 345 (Bruce Fink trans., 2006) (emphasis added).Google Scholar

112 See Lacan, Jacques, The Instance of the Letter in the Unconscious, in Jacques Lacan, Écrits 412, 414 (Bruce Fink trans., 2006).Google Scholar

113 Id. at 415.Google Scholar

114 Id. (citation omitted).Google Scholar

115 Id. Google Scholar

116 Id. at 416Google Scholar

117 Id. at 417.Google Scholar

118 Yannis Stavrakakis, Lacan and the Political: Thinking the Political 25 (1999).Google Scholar

119 Owen Hewitson, What Does Lacan Say About the Signifier?, Lacanonline.com (June 20, 2010), http://www.lacanonline.com/index/2010/06/what-does-lacan-say-about-the-signifier/ (last visited May 17 2017).Google Scholar

120 Id.Google Scholar

121 Koskenniemi, From Apology, supra note 4, at 11 (emphasis in original).Google Scholar

122 Mikkel Borch-Jacobsen, lacan: The Absolute Master 173 (Douglas Brick trans., 1991).Google Scholar

123 The diagram that follows is reproduced from Dany Nobus, Lacan's Science of the Subject: Between Linguistics and Topology, in The Cambridge Companion to Lacan 50, 52 (Jean-Michel Rabaté ed., 2003).Google Scholar

124 Id. at 53. See also Laclau, Ernesto, Identity and Hegemony: The Role of Universality in the Constitution of Political Logics, in Judith Butler, Ernesto Laclau & Slavoj Žižek, Contingency, Hegemony, Universality: Contemporary Dialogues on the Left 44, 69 (2000); Stavrakakis, supra note 118, at 24–25.Google Scholar

125 See Rasulov, supra note 13, at 656–63 (commenting, without reference to Lacan or the connection between Lacan and Saussure, on Saussurean linguistics and From Apology's focus on the signifier).Google Scholar

126 See Koskenniemi, From Apology, supra note 4, at 58.Google Scholar

127 See id. at 13 (“By providing an ‘insider's view’ to international legal discourse.”); see also Kennedy, David, Apology to Utopia, supra note 17, at 386 (“[R]ather than applying criticisms developed by other fields or writing from a viewpoint outside international law, [Koskenniemi] produces a criticism that is internal and, ultimately, situated in the best traditions of the discipline.”); Carty, supra note 14, at 864 (“[B]eyond Wittgenstein-style language games there is no reality, no referent.”); Rasulov, supra note 13, at 642 (“[From Apology's] most important theoretical legacy [is] a highly novel and very powerful argument in defence of the anti-anti-disciplinarian theoretical agenda in the field of academic international legal studies” - emphasis in original).Google Scholar

128 Jacques-Alain Miller, Action of the Structure, in Concept and Form Volume One: Key Texts from the Cahiers pour l'Analyse 69, 74 (Jean-Michel Rabaté ed., 2012).Google Scholar

129 Maniglier, supra note 44, at 27. See also Duroux, Yves, Strong Structuralism, Weak Subject, in Concept and Form Volume Two: Interviews and Essays from the Cahiers pour l'Analyse 187, 199–200 (Peter Hallward & Knox Peden eds., 2012).Google Scholar

130 Maniglier, supra note 44, at 27. See also Douzinas, supra note 14, at 304 (“I must identify with my image in the mirror and with my name … I must accept division and negativity, I must accept that I am what I am not, in [Arthur] Rimbaud's felicitous phrase that ‘Je est un autre.‘”).Google Scholar

131 Maniglier, supra note 44, at 27 (“[T]he rationale for such a paradoxical definition of subjectivity has to do with the problem of the relation between being and subjectivity. Does it make sense to say that ”I“ am … is it possible to apply the category of truth to the subject of knowledge itself?” – emphasis in original). See also Laclau, Ernesto, Power and Representation, in Ernesto laclau, Emancipation(s) 84, 92 (2007) (“The hegemonic subject cannot have a terrain of constitution different from the structure to which it belongs.”).Google Scholar

132 Maniglier, supra note 44, at 28.Google Scholar

133 See Heller, Thomas C., Structuralism and Critique, 36 Stan. L. Rev. 127, 140 (1984)Google Scholar

Structuralism argued that the systematic form of language, rather than the particular linguistic elements of actual spoken words, gave rise to intelligibility … the role of the speaker as agent was displaced. The speaker was now dependent on language itself to engage in meaningful activities …. The subject was better understood as a product of culture, an identity created in language, a potentiality limited by the language that defined the conventions of a world.Google Scholar

See also Koskenniemi, From Apology, supra note 4, at 7 n.1 (describing Heller's article as “useful”).Google Scholar

134 Douzinas, supra note 14, at 303.Google Scholar

135 Miller, supra note 128, at 74.Google Scholar

136 Koskenniemi, From Apology, supra note 4, at 536.Google Scholar

137 Miller, supra note 128, at 71.Google Scholar

138 Id. at 93.Google Scholar

139 Id. Google Scholar

140 See id. Google Scholar

141 See Laclau, Power, supra note 131, at 92 (“[T]he structure is not fully reconciled with itself … it is inhabited by an original lack, by a radical undecidability that needs to be constantly superseded by acts of decision. These acts are precisely what constitute the subject, who can only exist as a will transcending the structure.”); see also Slavoj Žižek, Class Struggle or Postmodernism? Yes Please, in Judith Butler, Ernesto Laclau & Slavoj Žižek, Contingency, Hegemony, Universality: Contemporary Dialogues on the Left 90, 119 (2000) (“[F]or Lacan, the subject prior to subjectivization is not some Idealist pseudo-Cartesian self-presence preceding material interpellatory practice and apparatuses, but the very gap in the structure that the imaginary (mis)recognition in the interpellatory Call endeavours to fill in.”); Singh, The Critic(al Subject), supra note 14, at 9 and 12, wrestles with the relationship between subject and structure in Koskenniemi's work without reference to “suture” or discussion of its place in the broader Lacanian/Laclauian framework and is, consequently, unable to grasp the dialectical, mutually constitutive relationship between subject and structure in Koskenniemi's work. This leads to the (in my view) mistaken conclusion – on which see infra note 152 – that “the absolute free and empty subject is presupposed by Koskenniemi's critique”. Id. at 13.Google Scholar

142 Laclau, Identity and Hegemony, supra note 124, at 82.Google Scholar

143 Koskenniemi, From Apology, supra note 4, at 548.Google Scholar

144 Id. at 539.Google Scholar

145 See Caudill, supra note 14, at 660 n.46 (“In Lacan's [concept of the] unconscious, society precedes individuality.”).Google Scholar

146 Koskenniemi, From Apology, supra note 4, at 544.Google Scholar

147 Id. at 555, 537.Google Scholar

148 See id. at 537–48.Google Scholar

149 Id. at 546–47. See also Koskenniemi, Between Commitment and Cynicism, supra note 90, at 512 (“It is, I believe, precisely [the] sense of doubt, uncertainty, and occasional schizophrenia … that is in the background when international lawyers describe their practice in terms of a commitment, instead of, say, a knowledge or a faith” – emphasis in original); id. at 508 (“The law brings the committed lawyer to the brink of the (legal) decision, but never quite into it. If a civil strife arises, the law tells the lawyer: ‘Here are two rules, ”self-determination“ and ”uti possidetis.“ Now choose.‘”).Google Scholar

150 Koskenniemi, From Apology, supra note 4, at 555. See also Koskenniemi, Between Commitment and Cynicism, supra note 90, at 498–99: To be a voice for no particular interests or position is not a lucrative affair; it calls for commitment! …. This aspect of commitment has to do with the avoidance of politics, prejudice and everything else that appears as external, as strictly outside the law and is often described in terms of the good lawyer's particular ‘integrity.‘Google Scholar

151 Laclau, Identity and Hegemony, supra note 124, at 79.Google Scholar

152 Aristodemou, supra note 14, at 37 (“get over”); Koskenniemi, From Apology, supra note 4, at 1 (“specifically ‘legal’ discourse”). See Laclau, Power, supra note 131, at 89 (“[A] contingent intervention taking place in an undecidable terrain is … a hegemonic intervention.”). See also Koskenniemi, From Apology, supra note 4, at 553 (discussing the international lawyer's “role”); Prost, Born Again Lawyer, supra note 11, at 1039 (“[P]art of what [From Apology] does is illustrate how there is no such thing as an ‘objective’ system of international law, i.e. an autonomous law which judges can ‘find’ and use as a non political device for settling disputes, and which students can learn ‘as it is.‘”); Singh, Koskenniemi's Images, supra note 29. I disagree with Singh when he concludes that “the Sartrean subject [is] at the heart of From Apology to Utopia,” claims that “the absolute free and empty subject is presupposed by Koskenniemi's critique,” and argues that “[s]he [the international lawyer] is able to briefly separate herself from the grounds of her own construction.” Id. at 710, 714, 724. Koskenniemi, From Apology, supra note 4, is, in my view, and as explained above, based on a Lacanian understanding of the sutured relationship between subject and structure.Google Scholar

153 See Koskenniemi, Gentle Civilizer, supra note 6, at 7 (“It may be too much to say that international law is only what international lawyers do or think. But at least it is that” – emphasis in original); Justin Desautels-Stein, From Apology to Utopia's Point of Attack, 29 Leiden J. Int'l L. 677, 687 (2016):Google Scholar

From Apology to Utopia suggested that it may very well be impossible to ‘think’ outside of [the] structure of legal thought, and if this was the case, then an understanding of the menu of such structures clued us in to the availability of different ways of conceptualizing the international legal order.Google Scholar

154 See Koskenniemi, From Apology, supra note 4, at 13 (referring to “a therapeutic effect on lawyers”).Google Scholar

155 See Laclau, Ernesto & Mouffe, Chantal, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics x (2d ed. 2001) (“Our approach is grounded in privileging the moment of political articulation, and the central category of political analysis is, in our view, hegemony” – emphasis in original); see also Koskenniemi, Martti, “By Their Acts You Shall Know Them …” (and Not by Their Legal Theories), 15 Eur. J. Int'l L. 839, 851 (2004) (“[A]ll law (and not just semantically unclear law) is infected by indeterminacy. There is, in this sense, no middle-of-the-road solution at all: even one that initially seems such, is an occasionalist reliance on a momentarily hegemonic solution” – emphasis in original); Desautels-Stein, Point of Attack, supra note 153, at 680–81 (“From Apology to Utopia sought to uncover practices of international legal argument in order to assist the international community in better understanding the structured relationship between international law and international politics.” (citation omitted)).Google Scholar

156 Laclau and Mouffe, Hegemony, supra note 155, at 8.Google Scholar

157 Id. at 48.Google Scholar

158 Id. at 93 (emphasis in original).Google Scholar

159 Id. at 105. See also Caudill, supra note 14, at 673 (“[A]rticulation is always an approximation of truth.”).Google Scholar

160 Laclau & Mouffe, Hegemony, supra note 155, at 105.Google Scholar

161 Id. at 113.Google Scholar

162 Id. at 110.Google Scholar

163 Id.Google Scholar

164 Id. at 105.Google Scholar

165 Id. at 112.Google Scholar

166 Laclau & Mouffe, Hegemony, supra note 155, at 113.Google Scholar

167 Id. at 110–11.Google Scholar

168 Id. at 111.Google Scholar

169 Id. at 106.Google Scholar

170 Id. at 110.Google Scholar

171 Id. at 115; Id. at 47, 88 n.1 (“The concept of ‘suture’ … is taken from psychoanalysis. Its explicit formulation is attributed to Jacques Alain-Miller … although it implicitly operates in the whole of Lacanian theory. It is used to designate the production of the subject on the basis of the chain of its discourse.”). For discussion of “suture,” see supra Section B. V., “Structure/subject/suture.”Google Scholar

172 Laclau & Mouffe, Hegemony, supra note 155, at 139.Google Scholar

173 Id. Google Scholar

174 Id. at 122–34.Google Scholar

175 Id. at 129. See also Laclau, Identity and Hegemony, supra note 124, at 74 (“An always open intertextuality is the ultimately undecidable terrain in which hegemonic logics operate.”).Google Scholar

176 Laclau and Mouffe, Hegemony, supra note 155, at 48.Google Scholar

177 Koskenniemi, From Apology, supra note 4, at 1. On sociology as “mother” and politics as “father,” see supra Section B. II., “Lacan and the Rat Man.”Google Scholar

178 Koskenniemi, From Apology, supra note 4, at 560–61.Google Scholar

179 Martti Koskenniemi, International Law and Hegemony: A Reconfiguration, 17 Cambridge Rev. Int'l Aff. 197, 198 (2004).Google Scholar

180 Martti Koskenniemi, What is International Law For?, in International Law 29, 46 (Evans, Malcolm D. ed., 4d ed. 2014).Google Scholar

181 Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 Eur. J. Int'l L. 113, 119 (2005).Google Scholar

182 Koskenniemi, A Reconfiguration, supra note 179.Google Scholar

183 Id. at 202.Google Scholar

184 Id. at 214.Google Scholar

185 Koskenniemi, From Apology, supra note 4, at 6–14.Google Scholar

186 Laclau, Power, supra note 131, at 90. I disagree with Sahib Singh when he claims that Koskenniemi's From Apology is a work of “structuralism” rather than “deconstruction,” insofar as he implies an either/or relationship between structuralism and deconstruction. See Singh, Sahib, International Legal Positivism and New Approaches to International Law, in International Legal Positivism in a Post-Modern World 291, 296–97 (Jörg Kammerhofer & Jean d'Aspremont eds., 2014).Google Scholar

187 Laclau, Power, supra note 131, at 90.Google Scholar

188 See Koskenniemi, From Apology, supra note 4, 224–302, 303–87.Google Scholar

189 See Laclau, Power, supra note 131, at 92 (“[T]he structure is not fully reconciled with itself … it is inhabited by an original lack … by a radical undecidability that needs to be constantly superseded by acts of decision.”).Google Scholar

190 Id. at 90.Google Scholar

191 Martti Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization, 8 Theoretical Inquiries in Law 9, 31 (2007).Google Scholar

192 Ernesto Laclau, Universalism, Particularism and the Question of Identity, in Ernesto Laclau, Emancipation(s) 20, 35 (2007).Google Scholar

193 Ernesto Laclau, Why do Empty Signifiers Matter to Politics?, in Ernesto Laclau, Emancipation(s) 36, 43 (2007).Google Scholar

194 Id. Google Scholar

195 See generally Koskenniemi, Gentle Civilizer, supra note 6.Google Scholar

196 Id. at 6, 10.Google Scholar

197 Id. at 2.Google Scholar

198 See Koskenniemi, Gentle Civilizer, supra note 6, 198–208 (on Jellinek), 238–49 (on Kelsen), 327–38 (on Scelle), 353–412 (on Lauterpacht).Google Scholar

199 Fredric Jameson, The Antinomies of Realism 111 (2013) (discussing “the dynastic tradition of history writing and historical narrative, which was essentially a story of the kings and queens and the achievements of the great, that is to say individuals, who are grasped in our own spirit of the word as the protagonists of historical actions and narratives”).Google Scholar

200 See Koskenniemi, Gentle Civilizer, supra note 6, at 9Google Scholar

If all the protagonists in this book are white men, for instance, that reflects my concern to retell the narrative of the mainstream as a story about its cosmopolitan sensibilities and political projects ….Google Scholar

This should not, however, be read so as to exclude the possibility—indeed, the likelihood—that in the margins … there have been women and non-Europeans whose stories would desperately require telling so as to provide a more complete image of the profession's political heritage.Google Scholar

201 Jameson, Prison-House, supra note 1, at 5–6Google Scholar

202 Koskenniemi, Gentle Civilizer, supra note 6, at 10. See also Craven, Matt, Theorising the Turn to History in International Law, in The Oxford Handbook of the Theory of International Law 21, 34 (Anne Orford & Florian Hoffmann eds., 2016), rejecting diachrony as method:Google Scholar

[I]nternational law is not simply something that one can examine through the lens of history as if it were some historical artefact existing independently of the means chosen by which it is to be represented, but a field of practice whose meaning and significance is constantly organized around, and through the medium of, a discourse that links present to past.Google Scholar

203 Koskenniemi, Gentle Civilizer, supra note 6, at 6.Google Scholar

204 Koskenniemi, From Apology, supra note 4, at 568.Google Scholar

205 Id. Google Scholar

206 Jameson, Prison-House, supra note 1, at 70.Google Scholar

207 See Koskenniemi, Gentle Civilizer, supra note 6, at 497–501.Google Scholar

208 See Jameson, Fredric, The Antinomies, supra note 199. His observations on Alfred Döblin's method, in his novel Wallenstein, seem equally applicable to Koskenniemi's method, with money as Döblin's moral and formalism as Koskenniemni's:Google Scholar

[F]illed at every moment with names, with all the characters of history, some known, some only mentioned in passing: and with place names as well, not even the map is enough to accommodate them all. It is a pulsing interminable uninterrupted flow, true textuality (not mere form without content) in which everything is in perpetual change back and forth across Central Europe yet driving forward temporally so that time itself, the passing instants, become invisible, only the events are generated and they never stop, the writer never stops (he thereby disappears also), and the sources are so thoroughly used up that nothing is any more allusion … there can be no longer any competition with this unending flow of text but only the affect the pulses through it and changes color from pallor to flush … all the tonalities of the affective spectrum stream through the interminable moments, none of them truly fulfilled or effectuating any lasting pause or destiny …. Not the least interest of this novel is indeed the recurrence in the form of an allegorical habit …. Everything here … has to do with money, and with an immense coral polyp that refuses to starve or die away but keeps itself in life for unforeseeable years by the very strength with which it draws money out of its hiding place … Wealth then becomes the very conduit of energy itself.Google Scholar

Id., at 244–45.Google Scholar

209 Koskenniemi, Gentle Civilizer, supra note 6, at 497 (quoting A.J. Thomas & Ann Van Wynen Thomas, The Dominican Republic Crisis 1965. Legal Aspects, in Thomas, A.J., Ann Van Wynen Thomas & John Carey, The Dominican Republic Crisis 3, 26–27 (1966)).Google Scholar

210 Id. Google Scholar

211 See id. at 497–98.Google Scholar

212 Id. at 499 (quoting A.J. Thomas, Ann Van Wynen Thomas & John Carey, The Dominican Republic Crisis 113 (1966)).Google Scholar

213 Id. Google Scholar

214 Laclau and Mouffe, Hegemony, supra note 155, at 105.Google Scholar

215 Koskenniemi, Gentle Civilizer, supra note 6, at 499.Google Scholar

216 Miller, supra note 128, at 93.Google Scholar

217 Koskenniemi's objection, via Friedmann, to Thomas and Berle seems to echo Freud in the sense captured by Caudill, see supra note 14, at 661 (“Freud believed that the primordial and dangerous passions of the individual must be controlled by inherently oppressive social structures.”); see also Orford, Anne, A Journal of the Voyage from Apology to Utopia (2006) 7 German L.J. 993, 995 (2006) (“I was struck … by the ease with which Koskenniemi accepts, even embraces, the constraints of institutional life.”).Google Scholar

218 Miller, supra note 128, at 93.Google Scholar

219 See supra Section C. I., “Hegemony” (on “nodal point”/“point de capiton”). Google Scholar

220 Laclau and Mouffe, Hegemony, supra note 155, at 112.Google Scholar

221 Id. at 113.Google Scholar

222 Koskenniemi, Gentle Civilizer, supra note 6, at 502 (discussing the “culture of formalism”); id. at 39–41 (discussing the Institut's foundation in 1873). See Lang, Andrew & Marks, Susan, People with Projects: Writing the Lives of International Lawyers, 27 Temple Int'l & Comp. L.J. 437, 446 (2016) (“Martti sees the founders of the Institut de droit International and their twentieth century successors as exemplifying and enacting in their professional lives some version of the kind of responsible moral agency which he seeks to enliven in the practice of international lawyers today.”).Google Scholar

223 Id. at 41. The phrase still features in Article 1(2)(a) of the Statute of the Institut. See Institut de Droit International, Statutes of the Institut de Droit International, Justitiaetpace.org, http://justitiaetpace.org/status.php (last visited May 17, 2017).Google Scholar

224 Koskenniemi, Gentle Civilizer, supra note 6, at 501, 502. See also Koskenniemi, Between Commitment and Cynicism, supra note 90, at 498 (“To struggle for ‘world peace through law’, ‘world order models’, the rights of future generations, ‘fairness’ or indeed global governance is far from a recipe for diplomatic success. But we would not recognize the profession for what it is if it did not hark back to such objectives.”).Google Scholar

225 Jameson, Prison-House, supra note 1, at 170 (emphasis added).Google Scholar

226 Id. at 6.Google Scholar

227 Jameson, Postmodernism, supra note 17, at xii–xiii.Google Scholar

228 Id. at xii.Google Scholar

229 Id. at xiii.Google Scholar

230 Koskenniemi, Gentle Civilizer, supra note 6, at 6.Google Scholar

231 Compare George Galindo's review of Gentle Civilizer and his conclusion that it “represents a historiographical turn in the work of Koskenniemi and paves the way for the same in the field of international law.” See Galindo, George, Martti Koskenniemi and the Historiographical Turn in International Law, 16 Eur. J. Int'L L. 539, 542 (2005).Google Scholar

232 Koskenniemi, Gentle Civilizer, supra note 6, at 504, 507.Google Scholar

233 Id. at 501.Google Scholar

234 Id. at 505–508 n.307–11. Justin Desautels-Stein, Chiastic law, supra note 29, reads Koskenniemi's “culture of formalism” through Soren Kierkegaard's figure of the ‘Knight of Faith,‘ emphasizing the extent to which Koskenniemi's formalism involves “having faith in a universal that is at once impossible and realisable.” Id. at 288. The Laclauian-Lacanian reading offered here has, I claim, “priority”—on “priority” see supra Section A, “Introduction”—over Desautels-Stein's reading.Google Scholar

235 See, e.g., Koskenniemi, Constitutionalism as Mindset, supra note 191, at 31 (arguing that the international lawyer qua “moral politician” is “the actor conscious that the right judgment cannot be reduced to the use of instrumental reason and who, in judging, aims to act as a ‘genuine republican'”); Martti Koskenniemi, The Lady Doth Protest Too Much: Kosovo, and the Turn to Ethics in International Law, 65 Mod. L. Rev. 159, 174 (2002) (“[F]ormalism constitutes a horizon of universality, embedded in a culture of restraint, a commitment to listening to others’ claims and seeking to take them into account” – emphasis in original); Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Mod. L. Rev. 1, 30 (2007):Google Scholar

[T]he tradition of international law has often acted as a carrier of what is perhaps best described as the regulative idea of universal community, independent of particular interests or desires. This is Kant's cosmopolitan project rightly understood: not an end-state or party programme but a project of critical reason that measures today's state of affairs from the perspective of an ideal of universality that cannot be reformulated into an institution, a technique of rule, without destroying it.Google Scholar

See also Koskenniemi, Martti, International Law in Europe, supra note 181, at 120, 122–23.Google Scholar

236 Ernesto Laclau, Subject of Politics, Politics of the Subject, in Ernesto Laclau, Emancipation(s) 47, 63 (2007).Google Scholar

237 Id. Google Scholar

238 laclau and Mouffe, Hegemony, supra note 155, at 88 n.1Google Scholar

239 Id. Google Scholar

240 Id. See also Ernesto Laclau, Structure, History and the Political, in Judith Butler, Ernesto Laclau & Slavoj Žižek, Contingency, Hegemony, Universality: Contemporary Dialogues on the Left 182, 199 (2000) (“[I]nstead of … impossibility leading to a series of substitutions which attempt to supersede it, it leads to a symbolization of impossibility as such as a positive value.”).Google Scholar

241 Martti Koskenniemi, What Should International Lawyers Learn from Karl Marx?, 17 Leiden J. Int'l L. 229 (2004). Koskenniemi notes, in the article's abstract, that “[t]he task … is to move from doctrinal critique to progressive practice” and that “the theory of hegemony provides the best available account of how that can be undertaken without losing the ambition of the law's universality.” Id. at 229. Koskenniemi does not, however, directly advocate the practice of international law as hegemony in the article's main text. See also Koskenniemi, Martti, Law's Negative Aesthetic: Will it Save Us?, 41 Phil. & Soc. Criticism 1039 (2015) (summarizing the argument for the practice of international law as hegemony without presenting it as an argument for hegemonic practice); Martti Koskenniemi, What is Critical Research in International Law? Celebrating Structuralism, 29 Leiden J. Int'l L. 727, 734 (2016), arguing, in abstract terms, for an understanding of research in international law as an exercise in hegemonic intervention: Structural research of the kind displayed in [From Apology] tries to keep alive the political intuitions of the researcher by demonstrating that there really is no safe ground of ‘mere professionalism’ where attitudes of blasé neutrality would be appropriate. On the other hand, by making express the rules that provide for legal competence, such research seeks to empower the critical researcher to operate in actually existing institutions in potentially influential ways, aware of the structural constraints but also of the malleability, gaps and loopholes of their official rhetoric.Google Scholar

242 Koskenniemi, The Lady Doth Protest, supra note 235, at 174 n.51 (referring to and linking Laclau & Mouffe, Hegemony, supra note 155, and Judith Butler, Ernesto Laclau & Slavoj Žižek, Contingency, Hegemony, Universality: Contemporary Dialogues on the Left (2000), with his discussion of the “culture of formalism” in Koskenniemi, Gentle Civilizer, supra note 6).Google Scholar

243 On “suture” see supra Section B. V., “Structure/Subject/Suture.”Google Scholar

244 Koskenniemi, From Apology, supra note 4, at 546 (advocating “authentic commitment” to international law); Id. at 555 (on “integrity”).Google Scholar

245 Laclau, Identity and Hegemony, supra note 124, at 78; Laclau and Mouffe, Hegemony, supra note 155, at 88 n.1.Google Scholar

246 Laclau and Mouffe, Hegemony, supra note 155, at 8.Google Scholar

247 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi, U.N. Doc. A/CN.4/L.682, at 244.Google Scholar

248 Koskenniemi, What is International Law For?, supra note 180, at 48.Google Scholar

249 Douzinas, supra note 14, at 305.Google Scholar

250 See Koskenniemi, From Apology, at 567–68 (“The descriptive thesis in From Apology to Utopia … seeks to articulate the competence of native language-speakers of international law …. Native language speakers of, say, Finnish, are also able to support contrasting political agendas without the question of the genuineness of their linguistic competence ever arising.” (citations omitted)). See also Douzinas, supra note 14, at 308–09: Speaking leads to a truce, rivalry is abandoned in order to participate in discourse and share our imaginary scenarios or symbolic representations with the other. But speech is a lie, a denying negating, deferring discourse which places the love-object, death and its desire, (temporarily) in abeyance. But this lie is also the whole truth.Google Scholar

251 Koskenniemi, From Apology, supra note 19, at 13 (“By providing an ‘insider's view’ to legal discourse, such an approach might produce a therapeutic effect on lawyers frustrated with their inability to cope with the indeterminacy of theory and the irrelevance of doctrine.”).Google Scholar

252 Laclau, Identity and Hegemony, supra note 124, at 75.Google Scholar

253 Id. Google Scholar

254 Id. Google Scholar

255 Id. Google Scholar

256 Koskenniemi, From Apology, supra note 4, at 1.Google Scholar

257 Id. at 16.Google Scholar

258 Id. at 58.Google Scholar

259 Laclau, Identity and Hegemony, supra note 124, at 75.Google Scholar

260 Koskenniemi, From Apology, supra note 4, at 11 (“[I]t [From Apology's ”deconstructive study of legal argument“—id. at 10] seeks to make explicit the legal ”grammar“ which controls the production of particular arguments within discourse and which counts for the lawyers specific legal ‘competence.‘”).Google Scholar

261 Laclau, Identity and Hegemony, supra note 124, at 76 (using “grammar” as a synonym for “discourse”).Google Scholar

262 Koskenniemi, From Apology, supra note 4, at 1.Google Scholar

263 Id.Google Scholar

264 Aristodemou, supra note 1, at 37.Google Scholar

265 See Laclau, Subject of Politics, supra note 236, at 63 (on “constitutive lack”).Google Scholar

266 Koskenniemi, From Apology, supra note 4, at 484 (emphasis in original).Google Scholar

267 See supra note 237 and accompanying text.Google Scholar

268 Koskenniemi, Gentle Civilizer, supra note 6, at 508.Google Scholar

269 Laclau, Identity and Hegemony, supra note 124, at 79.Google Scholar

270 Id. at 75.Google Scholar

271 Id: Google Scholar

[W]ith the need to assert both sides—necessity and impossibility—I could hardly be in disagreement, for it is the cornerstone of my own approach to hegemonic logics—the latter not involving a flat rejection of categories of classical political theory such as ‘sovereignty’, ‘representation’, ‘interest’, and so on, but conceiving of them, instead, as objects presupposed by hegemonic articulatory logics but, however, always ultimately unachievable by them.Google Scholar

272 Koskenniemi, From Apology, supra note 4, at 224, 303, 388.Google Scholar

273 Laclau, Identity and Hegemony, supra note 124, at 75 (emphasis in original).Google Scholar

274 Id. Google Scholar

275 Koskenniemi, Gentle Civilizer, supra note 6, at 357.Google Scholar

276 Id. at 412.Google Scholar

277 Id. at 376, 412. See also Koskenniemi, Between Commitment and Cynicism, supra note 90, at 498: The hopes of the reconstructive scholarship of the inter-war era as well as the projects for peaceful settlement and collective security within the League of Nations were easily dashed by Fascist aggression. Though tragedy is the name we apply to that period, we still admire the heroism of the profession's leading names: Anzilotti, Kelsen, Lauterpacht, Scelle … their belief in public governance through international institutions and the pacifying effects of interdependence remain part of the professional ethos today.Google Scholar

278 Koskenniemi, Gentle Civilizer, supra note 6, at 249.Google Scholar

279 Id. at 494.Google Scholar

280 Laclau & Mouffe, Hegemony, supra note 155, at 105.Google Scholar

281 See Laclau, Identity and Hegemony, supra note 124, at 71; Stavrakakis, Lacan and the Political, supra note 118; Yannis Stavrakakis, The Lacanian Left: Psychoanalysis, Theory, Politics (2007).Google Scholar

282 Hewitson, supra note 119.Google Scholar

283 Laclau, Identity and Hegemony, supra note 124, at 68–69. Laclau, id., reproduces Lacan's representation of the signifier/signified relationship in Lacan, The Instance of the Letter in the Unconscious, supra note 112, at 414, (with the ‘S’ above the ‘s'). The ‘S’ and ‘s’ are placed side by side in this quotation for typographical reasons only.Google Scholar

284 See id. at 69Google Scholar

In Lacan's words, the psychoanalytic process is concerned not with meaning but with truth …. The importance of this disassociation of truth from meaning for hegemonic analysis is that it enables us to break with the dependence on the signified to which a rationalist conception of politics would have otherwise confined us.Google Scholar

285 Id. at 71.Google Scholar

286 See Lacan, Myth, supra note 47, at 425 (“more light”). See also Aristodemou, supra note 14, at 37 (“[Lacanian psychoanalysis] requires the annihilation of the fantasies and misrecognitions that the patient used to rely on, and the constitution of a new, perhaps less confident and arrogant, but also … a truer and more ethical subject.”); Jacques Lacan, Discourse Analysis and Ego Analysis, in The Seminar of Jacques Lacan: Book I, Freud's Papers on Technique 1953–1954 62, 67 (Jacques-Alain Miller ed., John Forrester trans., 1988) (“Nothing other than this is at stake in analysis—recognising what function the subject takes on in the order of the symbolic relations which covers the entire field of human relations.”); Koskenniemi, Celebrating Structuralism, supra note 241, at 728: One type of ‘structural’ analysis that arose in the twentieth century aimed to make explicit the rules of production of … ‘there-ness’, the sense in which we end up feeling that something is so ‘true’ that we allow it to determine the way we live. According to this type of analysis, of which [From Apology] is a specimen, learning to know how such ‘truths’ are produced would release us of their power so as to take action in order to deal with problems that otherwise seemed intractable (because they were based on ‘truths‘) and allows us to lead in some sense better lives.Google Scholar

287 See Koskenniemi, Martti, Histories of International Law: Significance and Problems for a Critical View, 27 Temple Int'l & Comp. L.J. 215, 216 (2013) (“[W]hat seems needed is a better understanding of how we have come to where we are now.”); see also id. at 238: The turn to contextual readings of international law marks a welcome advance from the older search for origins and the progressive accounting of international doctrines that accompanied traditional histories …. Nevertheless, there was something valuable in the sweeping normativity of older histories, in the way they sought to produce “lessons” from their narratives. A careful reconstruction of the context cannot be all. Critical history must also examine how those contexts were formed and to what extent they have persisted to make the world into what it has become today.Google Scholar

On the importance of tradition and the passage of time in international law, see Nicholson, supra note 20.Google Scholar

288 See Laclau & Mouffe, Hegemony, supra note 155, at vii–xix.Google Scholar

289 Jameson, Prison-House, supra note 1, at 306.Google Scholar

290 Koskenniemi, Between Commitment and Cynicism, supra note 90, at 497 (“[A] commitment, distinguished from mere ”work,“ has an aspect of heroism in that it works against all odds.”).Google Scholar

291 See supra Section B. II., “Lacan and the Rat Man”.Google Scholar

292 See Caudill, supra note 14, at 661 (noting that a Freudian psychoanalytic perspective “may be helpful in social analysis … [but] invite[s] pessimism and provides the basis for an implied conservatism rather than for a radical or utopian critique of the status quo”).Google Scholar

293 See Mills, Jon, Reflections on the Death Drive, 23 Psychoanalytic Psychology 373, 375 (2006): A logical claim can be advanced that life is only possible through the force of the negative that brings about higher developmental achievements through the destruction of the old …. Psychoanalysts are often confused by viewing death as merely a physical end-state or the termination of life, when it may be memorialized in the psyche as a primary ontological principle that informs the trajectory of all psychic activityGoogle Scholar

(citation omitted).Google Scholar

294 Sigmund Freud, Beyond the Pleasure Principle, in The Standard Edition of the Complete Psychological Works of Sigmund Freud Volume XVIII (1920–1922) 7, at 38–41, 44, 46–47, 49–57, 60 (James Strachey trans., 1955) (1920). See also Freud, Sigmund, Civilization and its Discontents 55 (James Strachey ed., Joan Riviere trans., 1982):Google Scholar

[B]esides the instinct to preserve living substance and to join it into ever larger units, there must exist another, contrary instinct seeking to dissolve those units and to bring them back to the primaeval, inorganic state. That is to say, as well as Eros there was an instinct of death.Google Scholar

295 Lacan, Subversion, supra note 63, at 701.Google Scholar

296 Jameson, Political Unconscious, supra note 24, at 13.Google Scholar

297 See id. at 68.Google Scholar

298 Lacan, Myth, supra note 47, at 407–08.Google Scholar

299 On “self-articulation,” see Section C. II., “Structuralism, synchrony and the ‘move to history‘”.Google Scholar

300 See Section B. II., “Lacan and the Rat Man”.Google Scholar

301 The necessity of “self-articulation” and self-suturing—of showing the international lawyer his structure rather than telling him about it—explains why Koskenniemi does not adopt Jason Beckett's position and insist on formalism as “the only competent way in which [international law] may be spoken or practiced” (emphasis in original). Beckett, supra note 9, at 1079. See also Section II E., “Structure/Subject/Suture,” above.Google Scholar

302 Jameson, The Antinomies of Realism, supra note 199, at 21–26 (on “showing” and “telling”); id. at 36, 70 (on “affect”).Google Scholar

303 According to Jameson: “[W]e must think our way back into a situation in which th[e] question [of fiction/nonfiction] makes no sense and in which … the distinction between fiction and nonfiction (or history) does not yet obtain … postmodernity as such has now rendered those distinctions obsolete.” Jameson, The Antinomies of Realism, supra note 199, at 253. Jameson also observes: In the postmodern, where the original no longer exists and everything is an image, there can no longer be any question either of the accuracy or truth of representation … where the true is ontologically absent, there can be nothing false or fictive either: such concepts no longer apply to a world of simulacra, where only the names—Lacan's “points de capiton” … –remain.Google Scholar

Id. at 293. See also Lacan, Subversion, supra note 63, at 684 (“Thus Truth draws its guarantee from somewhere other than the Reality it concerns: it draws it from Speech. Just as it is from Speech that Truth receives the mark that instates it in a fictional structure.”); Jacques Lacan, Psychoanalysis and Its Teaching, in Jacques Lacan, Écrits 364, 376 (Bruce Fink trans., 2006) (regarding “facticity” and the notion that “the truth brings out its fictional structure”).Google Scholar

304 See Section C. II., “Structuralism, synchrony and the ‘move to history‘”; Section B. III, “International law ”as a language“.Google Scholar

305 Jameson, The Antinomies of Realism, supra note 199, at 35.Google Scholar

306 Id. at 10 (quoting and translating the title of Alexander Kluge, Der Angriff der Gegenwart gegen die übrige Zeit (1985)).Google Scholar

307 See Section B. III, “International law ‘as a language”‘.Google Scholar

308 Jameson, The Antinomies of Realism, supra note 199, at 31.Google Scholar

309 Id. at 33.Google Scholar

310 Id. Google Scholar

311 Id. at 30.Google Scholar

312 Id. at 35.Google Scholar

313 Id. at 35.Google Scholar

314 Id. at 43.Google Scholar

315 Koskenniemi, What is International Law For?, supra note 180, at 48.Google Scholar

316 Koskenniemi makes a point about reality affects in relation to Philip Allott's work:Google Scholar

[The] style simultaneously affirms and erases the authorial voice …. A few lines of this text and every international lawyer will know who has written them. Erasure: but it is a voice that denies its own personality and seeks to rise above anything as superficial or flimsy as authorial. Where Roland Barthes famously analysed the effet de réel in literature, the power of the literary style—the style of ‘realism‘—to create the impression that reality itself spoke, Philip uses an effet d'histoire—an effect as if history itself were speaking in his writing.Google Scholar

Martti Koskenniemi, International Law as Therapy: Reading the Health of Nations, 16 Eur. J. Int'l L. 329, 333 (2005).Google Scholar

317 On which see Section C. II., “Structuralism, synchrony and the ‘move to history‘”.Google Scholar

318 See Laclau & Mouffe, Hegemony, supra note 155, at 105 (“element”).Google Scholar

319 Lacan, Discourse analysis and ego analysis, supra note 286, at 66. See also Macey, supra note 73, at xxvi (“[T]he real … is not synonymous with external reality, but refers to the residual dimension that constantly resists symbolism and signification.”).Google Scholar

320 See Haskell, supra note 29, at 667, noting:Google Scholar

[T]he irony … that while unquestionably a profoundly important text that bring to light central historical, methodological and theoretical problems confronting the discipline, it often does so inadvertently—in other words, it is exactly how these problems are circumvented, obscured, silenced in the text that brings them into focus.Google Scholar

(citation omitted)); Singh, The Critic(al) Subject, supra note 14, at 14 (“From Apology to Utopia presumed into existence the type of psychological and social subject that was desired and required by its author's politics … without being seen to do so.”).Google Scholar

321 Koskenniemi, From Apology, supra note 4, at 6.Google Scholar

322 Koskenniemi, What is International Law For?, supra note 180, at 48.Google Scholar

323 Jameson, The Antinomies of Realism, supra note 199, at 43.Google Scholar

324 See supra notes 2–3 and accompanying text.Google Scholar

325 See Section C. II., “Structuralism, Synchrony, and the ‘move to history‘”.Google Scholar

326 Koskenniemi, Between Commitment and Cynicism, supra note 90, at 518–21. Cf. Rajagopal, supra note 22.Google Scholar

327 Jameson, Political Unconscious, supra note 24; Lacan, Subversion, supra note 63, at 701; Jameson, The Antinomies of Realism, supra note 199, at 36, 70 (on “affect”).Google Scholar

328 Jameson, Political Unconscious, supra note 24, at 5.Google Scholar

329 Caudill, supra note 14, at 673.Google Scholar

330 David Kennedy, Theses about International Law Discourse, 23 German Yearbook of Int'l L. 353, 354 (1980).Google Scholar

331 Id. at 355 n.4.Google Scholar

332 Id. at 355.Google Scholar

333 Koskenniemi, From Apology, supra note 4, at 6.Google Scholar

334 See Kennedy, David, Theses, supra note 330, at 355; Koskenniemi, From Apology, supra note 4, at 6, 8.Google Scholar

335 Id. at 356.Google Scholar

336 Id. at 362.Google Scholar

337 David Kennedy, Theses, supra note 330, at 361; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205, 213 (1979).Google Scholar

338 David Kennedy, Theses, supra note 330, at 361.Google Scholar

339 Id., at n.9; Duncan Kennedy, Blackstone's Commentaries, supra note 337.Google Scholar

340 Duncan Kennedy, Blackstone's Commentaries, supra note 337, at 213.Google Scholar

341 Id. at 209.Google Scholar

342 Id. at 210.Google Scholar

343 Id. (“[A]n instrument of apology—an attempt to mystify both dominators and dominated by convincing them of the ‘naturalness’, the ‘freedom’ and the ‘rationality’ of a condition of bondage.”).Google Scholar

344 Id. at 209.Google Scholar

345 David Kennedy, Theses, supra note 330, at 364.Google Scholar

346 Id. 364–65.Google Scholar

347 Koskenniemi, From Apology, supra note 4, at 10 n.7. See also id. at 107 n.140.Google Scholar

348 Id. at 62 n.151. See also text accompanying supra note 342.Google Scholar

349 See, e.g., Brilmayer, Lea, From Apology to Utopia: The Structure of International Legal Argument, 85 Am. Pol. Sci. Rev. 687 (1991); David Kennedy, The Last Treatise, supra note 5, at 982–83; Christoph Möllers, It's About Legal Practice, Stupid, 7 German L.J. 1011, 1013 (2006); Rasulov, supra note 13, at 649–51.Google Scholar

350 Koskenniemi, From Apology, supra note 4, at 1–15 (note, in particular, 7 and 13).Google Scholar

351 David Kennedy, Theses, supra note 330, at 355 n.4.Google Scholar

352 Id. at 355.Google Scholar

353 Id. at 358.Google Scholar

354 Koskenniemi, From Apology, supra note 4, at 511–12.Google Scholar

355 David Kennedy, Theses, supra note 330, at 383.Google Scholar

356 Koskenniemi, From Apology, supra note 4, at 60.Google Scholar

357 David Kennedy, Theses, supra note 330, at 387.Google Scholar

358 Koskenniemi, Between Commitment and Cynicism, supra note 90.Google Scholar

359 David Kennedy, Theses, supra note 330, at 391.Google Scholar

360 See Section C. III., “‘Empty’ universalism”.Google Scholar

361 David Kennedy, Theses, supra note 330, at 367.Google Scholar

362 Id. at 374.Google Scholar

363 Id. at 375 (emphasis added).Google Scholar

364 Id. at 375.Google Scholar

365 Koskenniemi, From Apology, supra note 4, at 1–15.Google Scholar

366 David Kennedy, Critical Theory, Structuralism and Contemporary Legal Scholarship, 21 New Eng. L. Rev. 209 (1985–1986). See id. at 250 n.96, 277, 282–83 n.180 for references to Lacan. Kennedy, id., is not included in the bibliographies of From Apology or Gentle Civilizer. See Koskenniemi, From Apology, supra note 4, at 618–75; Koskenniemi, Gentle Civilizer, supra note 6, at 518–58.Google Scholar

367 Caudill, supra note 14, at 676, 679.Google Scholar

368 Koskenniemi, From Apology, supra note 4, at 6.Google Scholar

369 David Kennedy, Theses, supra note 330, at 370.Google Scholar

370 Id. Google Scholar

371 Duncan Kennedy, Blackstone's Commentaries, supra note 339, at 220; Duncan Kennedy, The Rise and Fall of Classical Legal Thought xiv–xvii (2006).Google Scholar

372 Duncan Kennedy, Rise and Fall, supra note 371, at vii.Google Scholar

373 Id. at vii–viii, xl.Google Scholar

374 Id. at xli.Google Scholar

375 See id. at xliii n.41.Google Scholar

376 See id. Google Scholar

377 Koskenniemi, From Apology, supra note 4, at 6.Google Scholar

378 David Kennedy, Theses, supra note 330, at 375.Google Scholar

379 Duncan Kennedy, Rise and Fall, supra note 371, at 2.Google Scholar

380 Id. at 3.Google Scholar

381 See Kennedy, Duncan, Blackstone's Commentaries, supra note 339, at 220–21 (“[W]hat I have to say is descriptive, and descriptive only of thought. It means ignoring the question of what brings a legal consciousness into being, what causes it to change, and what effect it has on the actions of those who live it.”). On synchrony and “native speaker” approaches, see supra Section B. III., “International law ‘as a language.‘”Google Scholar

382 See Rasulov, supra note 13, at 643 (describing “the [From Apology] project [as one that] follows directly in the footsteps of what can be called the study of the inner life of the law tradition,” without tracing the internal or “inner” character of Koskenniemi's work back to Duncan Kennedy's thought – see infra note 411 on this point).Google Scholar

383 Duncan Kennedy, Rise and Fall, supra note 371, at xiv.Google Scholar

384 See Caudill, supra note 14, at 661: Whilst psychoanalysis can be viewed solely as an explanatory model for individual human behaviour, “it also contains the possibilities for an approach that analyses the mechanisms by which the social world enters into the experience of each individual, constructing the human ‘subject’ and reproducing itself through the perpetuation of particular patterns of ideology.”Google Scholar

(quoting Stephen Frosh, The Politics of Psychoanalysis: An Introduction to Freudian and Post-Freudian Thought 11 (1987)).Google Scholar

385 Koskenniemi, From Apology, supra note 4, at 13.Google Scholar

386 Duncan Kennedy, Rise and Fall, supra note 371, at xiv.Google Scholar

387 Koskenniemi, From Apology, supra note 4, at 6.Google Scholar

388 Id. at 10 n.7. See also id. at 567 (referring to “[t]he descriptive thesis in From Apology to Utopia”). Desautels-Stein, Point of Attack, supra note 153, at 681, notes that “[i]n [From Apology], Koskenniemi built a ‘classical’ structure of legal argument,” using “classical” in the sense of Duncan Kennedy's Rise and Fall, supra note 371. Desautels-Stein does not, however, save for repeated references to “classical legal thought,” develop the point or trace the deeper methodological connections between Duncan Kennedy's work and Koskenniemi's thought.Google Scholar

389 See Kennedy, Duncan, Rise and Fall, supra note 371, 265–69.Google Scholar

390 Id. at 27.Google Scholar

391 Caudill, supra note 14, at 662.Google Scholar

392 Id. at 676.Google Scholar

393 See Hunt, Alan, The Theory of Critical Legal Studies, 6 Oxford J. Leg. Stud. 1, 23 (1986) (noting a CLS “tendency,” which he associates with Duncan Kennedy, “to cite the theoretical origins of their positions in a very loose way”). Koskenniemi notes the “review” of CLS in Hunt without analysis or discussion. Koskenniemi, From Apology, supra note 4, at 63 n.151.Google Scholar

394 Duncan Kennedy, Rise and Fall, supra note 371, at ix.Google Scholar

395 See Susan Buck-Morss, The Origin of Negative Dialectics (1977).Google Scholar

396 Duncan Kennedy, Rise and Fall, supra note 371, at 265–69.Google Scholar

397 Id. at xiv.Google Scholar

398 See id. at xiv. See supra Section B. III., “International law ‘as a language,‘” on synchrony. There is a general tendency in the literature on critical approaches to international law to synchronically homogenize structuralism and critical theory despite their distinctive natures. See, e.g., Singh, International legal positivism, supra note 186, at 299–300; Rasulov, supra note 13, at 655.Google Scholar

399 Duncan Kennedy, Rise and Fall, supra note 371, at 27.Google Scholar

400 See supra notes 342, 348 and accompanying text.Google Scholar

401 See Kennedy, Duncan, Rise and Fall, supra note 371; Koskenniemi, Gentle Civilizer, supra note 6.Google Scholar

402 See supra Section A, “Introduction,” on “priority.”Google Scholar

403 As Hunt observes: The heart of [Duncan] Kennedy's ‘antagonism to philosophy’ centres around the question of the abstract character of theory and philosophy. The objection against abstraction is that distancing and generalization sacrifices the particularity or specificity of reality. Thus, if the objective of thought is to understand and to change reality, ‘abstraction’ is seen as conflicting with this goal …. Kennedy is asserting the view that only those elements of a discourse which are capable of participating in ‘effective communication’ are to count as knowledge. This is a perfectly plausible position within philosophy, but it neither abolishes philosophy nor does it overcome his primary objection to abstraction. ‘Effective communication’ is not free of abstraction, but rather it privileges those abstractions that are part of ‘common sense’ or ordinary discourse.Google Scholar

Hunt, The Theory of Critical Legal Studies, supra note 393, at 27. See Nicholson, supra note 20, on “re-imageination.”Google Scholar

404 See supra notes 2, 3 and accompanying text.Google Scholar

405 For discussions of synchrony and diachrony, and internal and external perspectives, see supra Section B. III., “International law ‘as a language.‘”Google Scholar

406 See Orford, Anne, In Praise of Description, 25 Leiden J. Int'l L. 609 (2012); Martti Koskenniemi, Celebrating Structuralism, supra note 241, at 732 (“[T]he task of legal research would be to understand legal professionalism not just be examining what institutions say but what makes them choose from equally plausible alternatives the ones they do, and draw from them the conclusions they draw” – emphasis in original).Google Scholar

407 David Kennedy, Theses, supra note 330, at 375.Google Scholar

408 Koskenniemi, From Apology, supra note 4, at 6.Google Scholar

409 Lacan, Subversion, supra note 63, at 701.Google Scholar

410 Lacan, Of Structure, supra note 96.Google Scholar

411 Rasulov maintains that From Apology's “intellectual genealogy” is not rooted in Duncan Kennedy's work but in “the French structuralist tradition” and, in particular, the work of Levi -Strauss and Michel Foucault. See Rasulov, supra note 13, at 649–51. For the reasons set out in this Section and, more generally, throughout this Article, it is possible, via Lacan and psychoanalysis, to link “the French structuralist tradition” with Duncan Kennedy and critical legal studies more generally and, to that extent, I disagree with Rasulov.Google Scholar

412 See Section C. V., “Laclau and Lacan … and Koskenniemi”.Google Scholar

413 Lacan, Of Structure, supra note 96.Google Scholar

414 Jameson, Political Unconscious, supra note 24, at 13.Google Scholar

415 Aristodemou, supra note 14, at 35–36 (quoting James Crawford and Martti Koskenniemi, Introduction, in The Cambridge Companion to International Law 1 (James Crawford & Martti Koskenniemi eds., 2012).Google Scholar

416 Id. at 36.Google Scholar

417 See Martineau, supra note 13, for an overview of fragmentation and the ILC's work. I have addressed fragmentation in previous work – see Nicholson, supra note 20.Google Scholar

418 See Report of the International Law Commission on the Work of Its Fifty-Eighth Session, U.N. Doc A/61/10, at 402 (2006) (“The Study Group … emphasized that [its] conclusions had to be read in connection with the analytical study, finalized by the Chairperson [Martti Koskenniemi], on which they are based.”).Google Scholar

419 See Report of the Study Group, supra note 247. See also Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int'l L. 553, 578–579 (2002) (foreshadowing the outcome of the ILC's work in its conclusion that while “no overall solution” is available to resolve fragmentation anxieties “consensual formalism” is the way forward).Google Scholar

420 See text accompanying supra notes 156 and 157. My reading of the ILC's fragmentation work as consistent with Koskenniemi's work in general conflicts with the existing literature. See Singh, Sahib, The Potential of International Law: Fragmentation and Ethics, 24 Leiden J. Int'l L. 23 (2011) (suggesting there is an inconsistency between Koskenniemi's scholarly work and the ILC study); Maksymilian Del Mar, Systems Values and Understanding Legal Language, 21 Leiden J. Int'l L. 29 (2008). Del Mar critiques the ILC study for ‘taking “the law itself” as an object’, arguing for an approach based on ‘the use of the language of law as a resource in the exercise of judgement’. Id. at 34, 48. See also Broude, supra note 13; Murphy, supra note 13. Broude and Murphy point to but do not fully explore the connection between Koskenniemi's scholarship and his ILC fragmentation work.Google Scholar

421 Jameson, Prison-House, supra note 1, at 5–6.Google Scholar

422 Report of the Study Group, supra note 247, at 23.Google Scholar

423 Id. at 24 (citation omitted).Google Scholar

424 Vienna Convention on the Law of Treaties, art. 31(3), 1155 U.N.T.S. 331 (“There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.”).Google Scholar

425 Report of the Study Group, supra note 247, at 244.Google Scholar

426 Deborah Luepnitz, Beyond the Phallus: Lacan and Feminism, in The Cambridge Companion to Lacan 221, 226 (Jean-Michel Rabaté ed., 2003).Google Scholar

427 See Jameson, Fredric, Archaeologies of the Future: The Desire Called Utopia and Other Science Fictions (2007).Google Scholar

428 See supra Section B. III., “International law ‘as a language.‘”Google Scholar

429 Jameson, Prison-House, supra note 1, at 6.Google Scholar

430 Žižek, Less Than Nothing, supra note 3, at 971:Google Scholar

[F]rom a properly Lacanian standpoint, les non-dupes errant means [that] … the true illusion consists not in taking symbolic semblances as real, but in substantializing the Real itself, in taking the Real as a substantial In-itself and reducing the symbolic to a mere texture of semblances. In other words, those who err are precisely those cynics [see Koskenniemi, Between Commitment and Cynicism, supra note 90] who dismiss the symbolic texture as a mere semblance and are blind to its efficacy, to the way the symbolic affects the Real, to the way we can intervene in the Real through the symbolic.Google Scholar

431 See supra Section C. VII. 2, “Rising and falling” (on “description”).Google Scholar

432 Jameson, The Antinomies of Realism, supra note 199, at 24, 26, 28, 39–41 (discussing, at 39–41, Richard Wagner's compositional style and the “Wagnerian ‘endless melody‘”).Google Scholar

433 Id. at 10 (quoting and translating the title of Alexander Kluge, Der Angriff der Gegenwart gegen die übrige Zeit (1985)).Google Scholar

434 See Jameson, Archaeologies of the Future, supra note 427, at xii (“[T]o adapt Mrs Thatcher's famous dictum, there is no alternative to Utopia, and late capitalism seems to have no natural enemies …. What is crippling is not the presence of an enemy but rather the universal belief … that no other socio-economic system is conceivable, let alone practically available.”); see also Kotiaho, A Return to Koskenniemi, supra note 26, at 494 (asking whether “Koskenniemi's project is an attack [on international law] at all,” answering “[n]o”, and linking “[t]he left-wing international legal project” with an appreciation that “from behind the corner of theoretical eclecticism, one can already hear the co-optive song of the sirens of global capitalism.”).Google Scholar

435 See Freud, Pleasure Principle, supra note 294, at 42–43 (“[T]he efforts of Eros to combine organic substances into ever larger unities”); Id. at 50 (“the Eros of the poets and philosophers which holds all living things together‘); id. at 46 (‘Eros, the preserve of all things”); id. at 54 (“Eros, the preserver of life.”).Google Scholar

436 See Benjamin, Walter, The Origin of German Tragic Drama 31 (John Osborne trans., 1998)Google Scholar

If truth is described as beautiful, this must be understood in the context of the Symposium with its description of the stages of erotic desires. Eros—it should be understood—does not betray his basic impulse by directing his longings towards the truth; for truth is beautiful: not so much in itself, as for Eros.Google Scholar

437 See generally Orford, A Journal of the Voyage from Apology to Utopia, supra note 217.Google Scholar

438 See Jameson, Archaeologies of the Future, supra note 427, at xii. Compare Lang and Marks, supra note 222, at 447–48 (“[Koskenniemi's] project is not one of revival, but one of renewal and reimagination.”). Whatever (limited) possibility Koskenniemi's “project” holds for “renewal and reimagination” is, as argued throughout this Article, limited to what can be achieved by hegemonic legal practice by “sutured” subjects situated within an international legal discourse defined by a synchronic history of its present, and it is this ontology of international law which, I argue, needs to be challenged. Lang and Marks seem to cautiously acknowledge the need for such a challenge but their reservations about Koskenniemi's “project” are rooted in the “voluntarism” they associate with his work. By contrast, my analysis of structure, hegemony, and suture in Koskenniemi's work has sought to demonstrate the predominantly anti-voluntarist character of Koskenniemi's, on my reading, psychoanalytic-structuralist scholarship:Google Scholar

[Koskenniemi] has sought to recapture what he takes to have been an earlier commitment to responsible moral agency. We have noted that in a different time and place and in a different disciplinary context, E.P. Thompson likewise evoked the moralized sensibility of an earlier epoch … [through] veneration of heroic agency and self-creation …. The poetry of voluntarism is certainly an inspiring art. What is less certain is how well is equips us to pursue the kinds of projects that might one day make us authors of our collective mode of existence as a whole.Google Scholar

Id. at 453. See also Haskell, supra note 29, at 675 (“[T]he miscalculation in [From Apology's] polemic to the profession is that it misses out … on the extra-linguistic rhetorical practices required to protect and expand intellectual terrain.”).Google Scholar

439 Jameson, Archaeologies of the Future, supra note 427, at 8.Google Scholar

440 See generally id. Google Scholar

441 See Benjamin, Walter, Origin, supra note 436, at 29 (“The value of fragments of thought is all the greater the less direct their relationship to the underlying idea, and the brilliance of the representation depends as much on this value as the brilliance of the mosaic does on the quality of the glass paste.”); see also Nicholson, supra note 20 (on Benjamin and “fragments”).Google Scholar

442 See Haskell, supra note 29, at 676 (protesting against current formulations of the international lawyer's subjectivity by calling on international lawyers to “[leave] the humanist impulse to moralize, to speak of transhistorical sensibilities, to confine ourselves as lawyers to the role of mediating professional differences or political hostilities, and instead to seek out the ruthlessly anti-transcendental, almost inhuman mechanisms that rein us into subjectivities”).Google Scholar

443 See Rajagopal, Balakrishnan, Counter-hegemonic International Law: rethinking human rights and development as a Third World strategy, 27 Third World Q. 767, 780 (2006) (“[W]e must start by fundamentally rethinking the shibboleths of the past, especially those that have provided the language of emancipation and justice.”).Google Scholar

444 Jameson, Prison-House, supra note 1, at 6 (“intellectual construction”); Walter Benjamin, Origin, supra note 436, at 235 (“In the ruins of great buildings the idea of the plan speaks more impressively than in lesser buildings.”).Google Scholar

445 See Benjamin, Walter, The Arcades Project 460 (Howard Eiland & Kevin McLaughlin trans., 2002) (“[T]he rags, the refuse—these I will not inventory but allow, in the only way possible, to come into their own: by making use of them.”). Freud develops an analogy between the mind and urban architecture. See Freud, Civilization and its Discontents, supra note 294, at 6–8. He also asks, with reference to Plato, whether “living substance at the time of its coming to life was torn apart into small particles, which have ever since endeavoured to reunite through the sexual instincts” and whether “these splintered fragments of living substance … having] attained a multicellular condition … finally transferred the instinct for reuniting, in the most highly concentrated form, to the germ-cells.” Id. at 52. Walter Benjamin, writing in 1925 (Freud writes Civilization in 1920), explores the unification of fragments in “mosaic[s]” and within a platonic framework of base “phenomena,” mediating “concepts,” and “ideas.” See Benjamin, Walter, Origin, supra note 436, at 29, 30–32, 33–34. See also, on Benjamin's Platonism, Beatrice Hanssen, Philosophy at Its Origin: Walter Benjamin's Prologue to the Ursprung des deutschen Trauerspiels 110 Modern language Notes 809 (1995). Žižek contemplates a “return to Plato” with reference to Plato's “Idea” and on the basis that “everything that appears ultimately appears out of nothing.” Žižek, Less Than Nothing, supra note 3, at 37, 41. Nicholson contemplates a negative theory of international law and international legal practice based on Benjamin's platonic framework. See generally Nicholson, supra note 20.Google Scholar

446 See Mills, supra note 293, at 378: Under the pressure of disturbing external forces, a drive becomes an urge or pulsion to repeat itself, the motive of which is to return to an earlier state of undifferentiate, the ‘expression of the inertia inherent in organic life’ …. Because drives are ‘conservative,’ that is, they follow a conservative economy of regulatory energy, are acquired historically and phylogenetically in the species, and tend toward restorative processes that maintain their original uncomplicated immediacy, Freud speculates that an ‘elementary living entity’ would have no desire to change, only to maintain its current mode of existence.Google Scholar

(quoting Freud, Pleasure Principle, supra note 294, at 36, 38)).Google Scholar

447 Žižek, Less Than Nothing, supra note 3, at 3–4 (commenting, with reference to Galileo's famous “Eppur si muove”, “‘moving’ is the striving to reach the void, namely ‘things move,’ there is something instead of nothing, not because reality is in excess in comparison with mere nothing, but because reality is less than nothing. This is why reality has to be supplemented by fiction: to conceal its emptiness”). See also id. at 60 (“‘Nothing’ is the generative void out of which othings, primordially contracted pre-ontological entities, emerge.”).Google Scholar

448 See Mills, supra note 293, at 379: According to Freud, all living organisms die for ‘internal reasons,’ that is, death is brought about from the cessation of internally derived activity: death is not merely executed by an extraneous force, rather it is activated by endogenous motives … the psyche is given determinate degrees of freedom to ‘follow its own path to death’ … that is, to bring about its end fashioned by its own hands. But this end is actually a return to its beginning, a recapturing, a recapitulation or its quiescent inorganic immediacy.Google Scholar

(quoting Freud, Pleasure Principle, supra note 294, at 38, 39).Google Scholar

449 Koskenniemi, From Apology, supra note 4, at 568.Google Scholar

450 Adorno, Theodor W., Negative Dialectics 365 (E.B. Ashton trans., 2007) (1966) (“[I]f thinking is to be true—if it is to be true today, in any case—it must also be a thinking against itself.”). On “thinking against” in international law see Nicholson, supra note 20.Google Scholar

451 Freud, Pleasure Principle, supra note 294, at 37 (“[I]n addition to the conservative instincts which impel towards repetition, there may be other which push forward towards progress and the production of new forms.”). See also id. at 57–58: The pleasure principle [or Eros] seems actually to serve the death instincts. It is true that it keeps watch upon stimuli from without, which are regarded as dangers by both kinds of instincts; but it is more especially on guard against increases of stimulation from within, which would make the task of living more difficult …. We must be ready … to abandon a path that we have followed for a time, if it seems to be leading to no good end. Only believers, who demand that science shall be a substitute for the catechism they have given up, will blame an investigator for developing or even transforming his views.Google Scholar

452 See Nicholson, supra note 20.Google Scholar

453 Robert Harbison, Ruins, in Robert Harbison, The Built, the Unbuilt and the Unbuildable: In Pursuit of Architectural Meaning 99, 108 (1991).Google Scholar