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EJIL Editors’ Choice of Books 2015: Jan Klabbers

Published on February 24, 2016        Author: 

Possibly the most disturbing book I have read in a long time is a brief volume written by an Italian political theorist, Roberto Farneti, under the title Mimetic Politics: Dyadic Patterns in Gobal Politics (2015). It is disturbing not for the lack of quality but, rather, for its bleak outlook. Farneti, working in a tradition often traced back to Girard, suggests that global politics is often based on mimesis: states essentially imitate one another until things spiral out of control, at which point a sacrifice is needed in order to restore relatively normal or peaceful relations, and sacrifice typically takes the form of some kind of overt conflict. Perhaps the most well-known illustration is the Cold War madness of mutually assured destruction (although the sacrifice could be averted due to the falling apart of one of the protagonists), but trade wars may also make for ever so many fine examples, never mind the sort of escalation that so often characterizes the Israel–Palestine conflict.

This is disturbing to the international lawyer (this international lawyer, at any rate), in that if Farneti is right it follows that law has little role to play and especially that responsibility and accountability would seem to be based on seriously impractical premises. Disregarding strict liability, most liberal responsibility regimes (and international law is no exception) are premised on actors acting rationally – no matter how perverse their rationalism – and acting on the basis of intentions. Yet Farneti’s argument suggests that the main operative element in state behaviour in neither ratio nor intent but simply imitation. States cannot help but follow each other’s examples, and international relations are thus bound to result in war as the ultimate sacrifice or in litigation as the sublimation of sacrifice. This helps explain the success of the World Trade Organization’s (WTO) dispute settlement body, but it may also help explain why trade wars keep on occurring: the disciplining efforts of the WTO are no match for the mimetic impulse.

Obviously, Farneti’s work is based on a bundle of assumptions that, if unpacked, may suggest that not all need be ruinous, and he himself gives a semi-religious twist to overcome despair. One may wonder, for example, or hope, that good behaviour too can be imitated, and he leaves open the question why states follow some examples but not others. Still, at the end of the day, Mimetic Politics sends a powerful, if somewhat bleak, message, and, more generally, the notion of mimesis has a potential explanatory force that has thus far remained under-utilized in international affairs.

If Farneti decrees that our rationalist and liberal assumptions are difficult to reconcile with empirical observation in the global arena, then perhaps the conclusion presents itself that our rationalist and liberal principles are themselves in need of some corrective. This, it seems, is the message of Stephen Toulmin’s Cosmopolis: The Hidden Agenda of Modernity (1992), a book I first read just after it came out but reread last year. As so often happens, the rereading made me appreciate the book far more than the original reading. Toulmin’s main argument is that Western philosophy went overboard when, with Descartes and Kant, it placed too much of a premium on rationalism, at the expense of wisdom and judgment. His is an eloquent plea for a re-appraisal of Montaigne, in particular, whose essays, so Toulmin suggests, display precisely the sort of wisdom that unfettered rationalism has such a hard time grasping. Cosmopolis is an exceedingly well-written plea for humanism, yet without throwing out the rationalist baby with the bathwater. Its language is elegant, and the scope of its learning is hugely impressive. It brings together themes that have pre-occupied Toulmin for half a century, including a re-appraisal of the typically juridical (well, common law) technique of expanding wisdom through the cases rather than by proclaiming grand principles (see, e.g., S. Toulmin, The Place of Reason in Ethics (1960)). The underlying assumption is worth bearing in mind: all decision making is contextual, so it stands to reason (quite literally) that behaviour should not be fully decontextualized and sterilized when evaluated. What is more, since context cannot be predicted or controlled, there is a risk in stating imperatives that are all too categorical.

Ernest Weinrib’s The Idea of Private Law (2012) is equally impressive. Weinrib’s classic study, first published in 1995, posits that, contrary to what is often suggested, private law need not serve some broader social goal. The function of private law is not, for example, to re-distribute wealth or to increase economic efficiency; instead, the function of private law is to be, well, private law. It contributes to justice, so Weinrib suggests, by focusing on corrective justice. It brings the doer and the sufferer of harm together and creates a relationship between the two, independent from any other relationship; here he enlists both Aristotle and Kant in support. Needless to say, here too various assumptions may influence one’s appreciation, and Weinrib’s libertarianism may not be to everyone’s liking – accepting corrective justice as justice may entail the restoration of a previously unjust relationship. Even so, the work is written with great verve and authority, and its dismissal of any particular functional role for private law is quite an eye opener – private law serves neither political nor economic goals in Weinrib’s work. Given the influence of private law on international law, Weinrib’s book has much to offer international lawyers.

The best doctrinal work I have read this year is no doubt Surabhi Ranganathan’s study of treaty conflicts, Strategically Created Treaty Conflicts and the Politics of International Law (2014), but I should add that I come to this work with a double bias. She takes further my argument that the open-ended nature of treaty conflicts is not necessarily a bad thing (which obviously makes me positively disposed towards the book), and I was one of the examiners of the doctoral thesis on which the book is based (bias number two). Strategically Created Treaty Conflicts is a technically highly accomplished work of legal scholarship, showing great mastery not only of the law of treaties but also of international criminal law, the law of the sea and disarmament law. With the help of well-crafted case studies, Ranganathan demonstrates that the political space left open by the indeterminacy of the Vienna Convention’s rules on treaty conflict can be used by states for strategic purposes, in order to change or adapt existing regimes. One of its more pleasant qualities is that it takes the critical revolution in international law seriously, while showing that it is possible to do highly insightful doctrinal work that is aware of international law being highly political and politicized.

My final book is a work of fiction. I had never read Jonathan Franzen’s The Corrections (2001) until recently, despite all of the hoopla surrounding its publication a little more than a decade ago. The hoopla, it seems, was fully justified. The Corrections is a fine novel about a family in disarray, with a father who suffers from Alzheimer’s, a mother who tries to keep everything together and three adult children who mess up their own lives in a variety of ways. The Corrections is a personal affair in the best US tradition of, say, Updike or Cheever, with a sprinkling of Roth for good measure. None of that would on its own warrant its inclusion in a list compiled by an international law academic such as myself, but as it happens the book contains the best depiction I have seen of the sort of cowboy capitalism that followed the dissolution of the Soviet Union and the subsequent prescriptions of the global financial institutions. The book’s hilarious and sad discussions on how to get rich in 1990s Lithuania alone are already worth its retail price and, in the end, no less disturbing than Farneti’s mimesis.

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