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Comments on Jean d’Aspremont, Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules

Published on December 12, 2012        Author: 

Jean d’Aspremont’s book evokes subliminally two recurring nightmares – one social, one intellectual. Socially, it reminds us of the failure of law to secure its proper place in international society. Intellectually, it reminds us of the part played by the modern university in the disempowering of the human mind.

The conventions of monograph-writing require that the author survey the territory in which he or she intends to plant something new – employed, as John Locke modestly said of himself, ‘as an under-labourer in clearing the ground a little, and removing some of the rubbish that lies in the way of knowledge’.  In fact, as d’Aspremont himself notes, most self-conscious intellectual innovators, before the advent of the modern university, did not devote much explicit effort to disposing of the writings of their predecessors.  Locke himself certainly did not do so, either in the Essay or the Two Treatises.

In the present case, ‘clearing the ground a little’ produces a mountain of footnotes listing hundreds of writings expressing, and endlessly recycling, every conceivable view, and many inconceivable views, about the essence of International Law, or its lack of an essence. It requires the author to sift through the output of an industrial-scale intellectual effort, to sort out the countless academic sects (many of them blessed with brand-names ending in -ism), and to locate them in relation to each other.  And it requires him to perform the impossible – but academically expected – task of making sober judgments about their relative merits.

And, all the while, the wicked world goes on its merry way to ruin. Why would anyone choose to write creatively and intelligently about the philosophy of International Law? They are unlikely to be heard by those who exercise international public power – politicians, diplomats, civil servants, intergovernmental officials, international judges and arbitrators, legal practitioners – the international ruling class, a self-satisfied and self-regarding conspiracy, many of whose members have the crudest ideas about the nature of law, and many of whose members relentlessly abuse public power, national and international.

It is important to understand two things.  Holders of public power are the product of ideas, ideas that they did not invent.  Holders of public power use other people’s ideas as instruments of power.  If a more or less abstract idea might be useful to them, they will appropriate it – ideas of religion or philosophy or morality or political theory or natural science or human psychology – not only to justify their possession of power but also to exercise that power more efficiently. Words are power.  Words are weapons.  The power of the powerful includes the power to incorporate ideas into the language of power.

I won’t comment in detail on the intricacies of d’Aspremont’s exposition.  But I must say that I would differ from some of his accounts and judgments of legal philosophies and theoretical positions with which I am myself familiar.   (I’m sorry that he devotes respectful attention to Herbert Hart and Ludwig Wittgenstein – both of them being of minimal continuing intellectual significance.)   For me, the book is important at a more general level.   The important question is – what general lessons can we learn from d’Aspremont’s heroic work of synthesis and analysis?

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