This is the second part of the inaugural lecture of Roger O’Keefe, Professor of Public International Law at University College London (Part I is available here). In the lecture he teases out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet.
All characters depicted in this tale are fictional, sort of. Any resemblance to academics, judges or journals living or dead is intended in a jesting and friendly spirit. All legal actions should be directed in the usual way to Professor Joseph Weiler.
But it was not all beauty, truth, and miscellaneous high-mindedness. The international legal system, while its own reality, was predicated on the external reality—the real reality, as it were—of the practice of states. It was ultimately positivist, and as an international legal positivist D. H. G. H.-G. Salamander was necessarily a down-and-dirty empiricist. And what down-and-dirty data, what incident and idiosyncrasy with which to work! All human life was there! The agony and the ecstasy, the tragedy and farce, the stuff and nonsense of international affairs past and present, visibilium omnium et invisibilium! The human world, the bringer of plurabilities, its song be sung, its rill be run! Like the sea, it teemed with life. So too knew it death, the destroyer of worlds, Assyrian, wolf, and fold all kneeling before it and trembling. The divine comedy! The encyclopaedia satanica! He sang the corpus eclectic. Out of this Dionysian frenzy, out of the fury and the mire of human veins, it was not only the distinctive service but also a large part of the fun of the international lawyer to discern and to elaborate with Anzilottian clarity a normative logic.
As for whether at heart he was an international legal apologist or critic, Salamander took the view that he could rightly no more praise or condemn international law for justice or injustice than he could a language for a kind or hurtful word. There was no use indicting laws. They were no shoddier than what they peddled. Law, to quote again the immortal Austrian, was simply ‘a specific social technique for the achievement of ends determined by politics’ [Hans Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems, with Supplement (New York: Frederick A Praeger, 1950), xiii]. International law, as someone else would write somewhere, was no more than a vehicle for human values, a language of human self-ordering, a particular praxis of human willing. If the rules were warped, the blame lay with the crooked timber.
Yet for all her tender ministrations, Eunomia remained a demanding mistress. She also remained a demanding read, or at least her namesake did, although no-one—the London cabbie, the troika (or trinity) of sage, prophet, and poet, and least of all D. H. G. H.-G. Salamander—minded too much.
Yes, she was a demanding mistress alright. So much to write, so little time, to borrow from Wonka. The job involved so much drudgery. Tomorrow and tomorrow and tomorrow crept in this petty pace from day to day. Yet here were his friends pumping out publications as if by colonic irrigation! The pugnacious Georgian, the feisty Serb, the neotenous Nigerian, the bouffanted Belgian … Goddammit, did that well-coiffed Walloon never sleep? The productivity of these characters was demoralising! Just when he thought it was safe to go back in the water, out leapt another book, article, chapter or blog-post by one of these men possessed! And men they all were, these Gatling guns of international legal scholarship. The legions of women womanning the academy, saner and more sapiens, seemed to stop to smell the roses. There was probably an article in there somewhere … but there was no bleeding time to write it! Salamander felt the urge to cry out ‘Polako polako! Doucement! Festina bloody lente!’ and whatever the cognate injunction was in Georgian and Yoruba. But it would have been in vain. Professors Fangio, González, Runner, and Bolt were not about to take their respective feet off the gas. Their Stakhanovite output was unstoppable.
Did these guys not have teaching, supervising, marking (summative and formative), external examining, pastoral, and ‘enabling’ duties? Did they not have admin coming out their ears, or out of what Joe Orton would have called their ears? References, student admissions, attendance monitoring, peer observation, peer appraisal, self-appraisal, time allocation surveys, fire safety induction, expense claims, faculty meetings, committee meetings, sub-committee meetings, workshops of every shape and size … DID THEY NOT HAVE FACULTY AWAY DAYS? The Teaching Away Day, the Learning Away Day, the Teaching and Learning Away Day, the Research Away Day, the Research Funding Away Day, the Funding the Research Funding Away Day Away Day, the Student Satisfaction Away Day, the Student Dissatisfaction Away Day, the Staff Dissatisfaction Away Day, the Staff Suicide Away Day … The list went on. Sure, more often than not Salamander interpreted the key term to mean that he would be away that day. But it was the thought that counted. To his friends’ well-meaning inquiry ‘What are you working on at the moment?’ honesty compelled the answer ‘Half a dozen hypothetical scenarios on the Dangerous Dogs Act 1991 (UK) for the undergraduate client-interviewing competition.’ Dignity, however, prompted an equivocal but no less truthful ‘Oh, the usual.’
Where had fled his youthful disinvolta sprezzatura? What had spawned this pasticciaccio brutto? Who in Satan’s name invented moodle®? HOW MANY GODDAMN EMAILS COULD A HUMAN BEING GET? It depressed him. Work, work, work, without so much as a sponge soaked in vinegar by way of mercy! ELOI, ELOI, LAMA SABACHTHANI? O God, O Montreal!
To top it all off, that lusophone Latin American light of the international judicial world and universal legal conscience had just published his maximum opus:
The Construction of a Humanized International Law: A Collection of Individual Opinions (1991-2013) His Excessivity Judge Anônimo Aeterno Canardo Triplicade
- December 2014
- ISBN: 9789004251021
- Hardback (1876 pp.)*
- List price: €395.- / $512.-
- Language: English
* ACTUAL SIZE
1,876 pages! Jesus wept. Salamander had been forced to brush up his schoolboy Latin just to get through these epistles to the Philistines, although finishing them seemed merely to deepen his perplexity. Quousque tandem abutere, Catalina, patientia nostra? He could handle the ‘Primus’. He could tolerate the ‘Secundus’. He could even just about hold down the ‘Tertius’ after a big night out with his City solicitor friend. But, whether out of excessive whetting of Occam’s razor or simple eye fatigue, he was unable to suppress the suspicion that, if an epilogue ever contained a ‘Quadragesimus quintus’, something somewhere had gone horribly wrong. Words, words, words! A veritable cornucopia of words! The miracle of the loaves and footnotes! Full many a flower was born to blush unseen and waste its sweetness on the desert air … but not this rare specimen! Reading the stuff was like ploughing through the procès verbaux of I’m a Celebrity, Get Me Out of Here! A whole series of it. With commentary by Augustine and Aquinas. True, in the beginning was the Word. But there was only one of them.
Even leaving aside demanding mistresses, D. H. G. H.-G. Salamander did not find it all plain sailing. For all his unrepentant formalist positivism, he harboured at times unsettling methodological, even existential doubts.
To begin with, the rules of the game were to an extent fluid, neither immutable nor amendable solely at specified constitutional moments. Their ongoing ascertainment, like that of other rules of customary international law, rested ultimately on induction from the quizzicality and quiddity of human affairs. It was not always clear where hegemonic sleights of hand and shoddy workmanship ended and novel processes of international lawmaking began, where rigorous adherence to the methodological disciplines of the international lawyer’s craft flowed into fusty insistence on dépassé forms or harrumphing reaction. At crucial moments was he a vigilant custodian of the lux et pocula sacra or a blind defender of the ancien régime? When should he jump ship? The timing called for such keenly attuned, disinterested, and fearless exercise of the practical discernment of the international lawyer as now and then to make him queasy. This was not the sea of psychic refuge but a dolphin-torn, a gong-tormented sea. It was maybe more enticing than a snotgreen sea, a scrotumtightening sea, but if so only marginally.
Exacerbating Salamander’s episodic nausea, his commitment to a formalist, positivist international law was inescapably and discomfortingly a conservative preference. Granted, such an international law could be a vehicle of emancipation as much as of domination. Think of the right to self-determination. Think of international human rights law. All it took was agreement among states. But such a vision still reflected a plumping for the civility of form and process over the righteous overthrow of the tables of the moneychangers and the seats of them that sold doves. And he was never persuaded beyond doubt that the first was the better. It seemed undeniable that strict adherence to the rules of the game could leave unremedied, even ratify, injustice and suffering. It was all very well and good to blame the crooked timber, but what of the drowned child in the here and now? At times it was anguishing.
Had not many of the great progressive developments of international law come about after a judge or scholar, with a fine disregard for the rules of the game as played at the time, picked up the ball and ran? You couldn’t make an omelette without breaking a few eggs. What was so wrong with appealing to at least manifest underlying values in those rare instances where the positive law appeared so at odds with them and where an intimation of justice, or of at least manifest injustice, cried out for it? Was intentionally and knowingly disguising lex ferenda as lex lata really a hanging offence? After all, judicial decisions and the teachings of the most highly qualified publicists (the latter term interpreted these days somewhat indulgently) were no more than subsidiary sources for the determination of rules of international law. If they failed to persuade states, states would take them at best cum grano salis. For every Tadić there was an Ayyash. Indeed, if they failed to persuade other judges and scholars, they would suffer a similar fate or worse. For every Tadić there was an Application of the Convention on the Prevention and Punishment of the Crime of Genocide waiting to trash it. All Salamander would be doing by pushing out the boat would be contributing to the debate. To mix metaphors.
And why, for that matter, did he place himself alongside international judges? Judges decided actual cases, cases in which states had submitted to a court’s jurisdiction on the implied understanding that the rules of the game would be scrupulously observed. Moreover, the fluid international legal game had begun to resemble a watered-down common-law system, in which courts actually made law, applicable beyond the parties to the dispute, making legitimacy all the more imperative in the judicial context. But international legal academics decided nothing, and the writings of the most, the least, and the fair-to-middling highly qualified publicists did not make international law. Was it not a little precious to insist that the ivory tower play by the rules? To mix more metaphors.
Most fundamentally and scrotumtighteningly, what of the suspension of the purposive relations of ordinary human existence that was of the essence of a formalist vision of international law? Was this not a moral abdication? Was it not fiddling while Rome burned? And was it not ethically glib to believe that the actions of the players in the game—albeit the serious, even sacredly serious game—of international legal reasoning were not their own actions but those of the game itself? This sounded frighteningly like just following orders. Everyone had the power to choose.
In short, was there any sin in being an evangelist academic international lawyer? Was it damnable not to be?
Yet he could not bring himself to take that plunge. Free to dream, he might have dived right in. But his mind-forg’d manacles, his perhaps-oversusceptible aversion to what he intuited as untruth, held him back. So too did his temperament, although it was probably the same thing. Like Dr Rieux, he would not let himself go when he ought not to. One had to stick with what one knew, to describe what one had seen. Whether this was courage or its opposite, he was uncertain. But to act otherwise would have been a lie. He was not sure what was right, but he knew what felt dishonest. What an impossible fellow I am, he sighed with the whisky priest, and how useless.
‘The law is always deficient’, wrote the jocular German, ‘not because it is imperfect in itself but because human reality is necessarily imperfect in comparison to the ordered world of law’ [Gadamer, Truth and Method, 328]. To the homo sapiens sapiens in Salamander, this rang true.
He was not persuaded beyond doubt. His instinct felt truer than the alternative, but it was a defeasible truth. His conviction was provisional.
His conviction also rested on a desperate hope.
It was a hope that others might do better, if only fail better. Salamander drew a modicum of consolation from the thought that he was but part, a small, brief part, of ‘a conversation’, in the words of the late centenarian Spielmeister, ‘that never ends’, in which ‘[n]o word is the last word, just as there is no first word’, in which ‘[e]very word is itself always an answer and gives rise always to a new question’ [Hans-Georg Gadamer, ‘Letter to Dallmayr’ (trans. Richard E. Palmer & Diane P. Michelfelder) in Diane P. Michelfelder & Richard E. Palmer (eds), Dialogue and Deconstruction: The Gadamer-Derrida Encounter (1989) 93, 95]. In turn, the conversation that was international law was but a small part of a greater conversation. Salamander found some comfort in reminding himself that, when all was said and done, it was only law. It was only a game, as it were. It did not foreclose the possibility of moral agency and attendant practical action in the world of social reality. It was only one specific technique among many for human self-ordering and, where desired, for the remedy of social ills. ‘There [were] many times’, in the words of the down-to-earth Dudleian, ‘when it [was] much better to call upon a politician, or a priest, or a doctor, or a plumber’ [Vaughan Lowe, International Law (Oxford: Clarendon Press, 2007), 290]. And, indeed, the greater part of the task of setting the world to rights fell to the first of these, to that more important universe of human imagining and willing, to politics—which is to say that it fell to the human capacity to imagine a better world and to the strength of the human desire to bring it about. Here Salamander’s hope, his desperate hope, lay in the eventual, world-historical vindication of the human intolerance of injustice, a hope that was ultimately one and the same as his hope in the inevitable correction by the cosmic Logos of unidiomatic usage.
Perhaps best of all, Salamander’s hope hinted to him that maybe he did not have to work quite so hard. Maybe while the pugnacious Georgian, the feisty Serb, the neotenous Nigerian, and the bouffanted Belgian burned the midnight oil, while the lusophone Latin American light of the international judicial world and universal legal conscience levelled whole rainforests in his zealous construction of a humanized international law, he, Dionisio Hans Georg Hans-Georg Salamander, could bunk off to the beach.
Play up, then, he thought to himself, play up, and play the game, the wistful, beautiful game. Joga bonito, as His Augustinian Excellency might have said. Embrace what the sceptical, quixotic German, in his inaugural lecture at University College London, called the misery and grandeur of international law [See Georg Schwarzenberger, ‘The Misery and Grandeur of International Law’ (1964) 17 Current Legal Problems 184]. Practise your craft, the craft of the guild of international lawyers present and past, but do so with a humility born of indefeasible doubt. Take to sea, the sea, the sea, but beware the murderous innocence of the sea.
When tidying his office for the first time in fifty years, D. H. G. H.-G. Salamander chanced upon a poem he had written in his youth. It went like this:
When I grow up, I dream
I’ll be a sea-otter,
gorging my belly
on paw-shucked abalone,
effortlessly light and lounging
on pillows of kelp.
When I grow up, I fear
I’ll be a beaver,
the worthy of the woods,
whose winter warmth is earned
with summer days not spent
Yet when I grow up, I bet
I’ll be a salamander,
promising but never quite managing
to live on dry land.
Entertaining in a fashion,
perhaps bizarre to some,
but floating unflinching.
Of course, he became none of these things, at least not literally. He became an academic international lawyer. And in the fullness of time he assumed the posts of Comptroller-General of the Integrity of the Normative System and, on retirement, Poet in Residence at the European Journal of International Law. Seaside residence.
During the aforementioned excavation of his office, D. H. G. H.-G. Salamander also found an old photo, a photo whose message felt apt for a legal field peculiarly prone to anxieties, discontents, crises, and the po-faced manufacture of mountains out of molehills. It tickled his fancy so much that he submitted it to the European Journal of International Law’s ‘Roaming Charges’ section, which, in keeping with the impeccable standards of editorial transparency for which the journal was famed, published it immediately. It looked like this:
It was a call—albeit one expressed in the imperative mood, rather than the hortative subjunctive—to which, Salamander imagined, that crafty old reformed playboy Augustine, Saint Augustine, the original one, would have responded with a single word: Amen.
This story is dedicated to the memory of Fr Charles Fraser SJ, ‘Jesuit, classicist, benign larrikin’ (Sydney Morning Herald, 23 February 2004), who stopped to smell the roses, knew the value of play, and was partial to a drop of the water of life.
Editors note: This lecture will be published with full references in the 2016 volume of Current Legal Problems