Douglas Guilfoyle has published a couple of very useful practical pieces here on the process of doing a PhD in international law (here and here). Professor Andrea Bianchi recently asked me to speak to the new law research students at the Graduate Institute of International and Development Studies in Geneva on the importance of theory in doctoral research. This is a slightly revised version of the lecture I gave.
In bed with Alcibiades: theory and doctoral research
I have been reading a lot about Socrates recently. I am reading about him rather than reading him because he didn’t leave any texts behind, so what we know or think we know about what he thought and argued comes from secondary sources, from philosophers such as Plato and Xenophon, and from satirists like Aristophanes. But some contemporary Socratic experts, such as Vlastos, argue that it is unclear what precise ideas should be ascribed to him.
I know why I am reading about Socrates: I am planning to do some work on theories of rhetoric, and especially of legal rhetoric, soon and so I want to read about Socrates and the Sophists to provide a background to Aristotle’s Rhetoric. From there I’ll move forward to more contemporary theorists such as Alexy, Perelman, and Habermas. I might have to stop by some of the Roman authors, but maybe they were more practitioners rather than theorists of rhetoric. I know the start and I know the finish, but I’ll have to find out what lies between. But if one did know what was there before one started, then why do it? That isn’t research.
I suppose that there are at least two points widely known about Socrates. One is his aphorism that an unexamined life is not worth living, which seems so well known that Madonna could quote it in one of her songs. That might be an example of moving from the sublime to the ridiculous. The other is the nature of Socrates’ death. He was condemned to die, by drinking hemlock, after being tried in Athens for impiety and corrupting youth. This is where Alcibiades comes in. From all accounts, Alcibiades and Socrates were close friends, and it has been argued that this friendship was one of the reasons why Socrates was sentenced to death as Alcibiades held less than democratic political ideas in the relentlessly democratic Athens of the fifth century BCE. These ideas were thought to have been instigated, in one way or another, by Socrates because he encouraged young men to think for themselves and to question the ways and ideals of their fathers.
This is where Socrates was alleged to have corrupted youth—by encouraging them to think for themselves. The charge was not related to sexual issues. At that time, among some classes of Athenians, there were sexual relations between young and older men. The idea was that the older man would act as a mentor to the younger, take him under his wing and show him how to be a proper Athenian citizen, and also take him to bed—although these relationships were not widespread but restricted essentially to the upper classes. No doubt we have all seen examples of Greek black ware pottery decorated with intimate images of men and boys (if not, see here), but reports of pederasty were greatly exaggerated. They were not that common.
Plato, however, in one of his dialogues (Protagoras) has an unknown friend of Socrates ask him, “Where have you been? Not that I need ask, you’ve been chasing after that gorgeous Alcibiades”. It was by all accounts, an intimate relationship and, according to Plato’s Symposium, they did sleep together. Alcibiades knew, or hoped he knew, what to expect, but these expectations were dashed. Plato has Alcibiades complain that when they went to bed “I might as well have been sleeping with my father or an elder brother”. Nothing physical took place. Alcibiades’ hopes were in vain.
We can only conjecture what happened, but I like to think that Socrates’ attentions to Alcibiades were more mental than physical, and that they talked about philosophy in bed. But that is where Socrates’ corruption of youth, his corruption of Alcibiades, lay. Rather than be a true mentor and teach Alcibiades how to be a proper Athenian citizen, committed to a rather muscular and aggressive form of democracy, Socrates corrupted him by encouraging him to challenge the established order and favour oligarchy. This was the antithesis of Athenian democracy, and was associated with Athens’ political rival, Sparta.
All this goes to show that thought, and encouraging thought, can be dangerous, if not fatal. Although I am here to discuss why thinking, and thus theory, is important in doctoral research, and to encourage you to do so, I hope that your efforts will not be as personally dangerous as those of Socrates turned out to be.
Why does theory matter?
In a 1793 paper entitled ‘On the Common Saying: “This may be true in theory, but it does not apply in practice”’, Kant provided what I think is a useful notion of what a theory is, and indicated why theory is important. He defined a theory as:
A collection of rules, even of practical rules, is termed a theory if the rules concerned are envisaged as principles of a fairly general nature, and if they are abstracted from numerous conditions which, nonetheless, necessarily influence their practical application…[N]o-one can pretend to be practically versed in a branch of knowledge and yet treat theory with scorn, without exposing the fact that he is an ignoramus in his subject. He no doubt imagines that he can get further than he could through theory if he gropes around in experiments and experiences, without collecting certain principles (which in fact amount to what we term theory) and without relating his activities to an integral whole (which, if treated methodically, is what we call a system).
What does this mean? Kant sees a theory as a reflective consideration of practice: an attempt to gain an understanding of underlying structures whose function is to formulate or guide practice. A theory is necessary because it provides us with the intellectual blueprint which enables us to understand the world, or some specific aspect of human affairs. Theory makes data comprehensible by providing a structure for the organization of a given discipline or body of knowledge. Formulating a theory goes deeper than simply gaining knowledge or expertise, as it aims at understanding an area of knowledge.
In doctoral studies, there are different layers of theory. Theory, in a broad Kantian sense, comes into the process even before we consider the substantive aspects of the research and structure of the dissertation. Before I discuss theory in the substance of research, I want to consider the way that theory can structure the process of doing doctoral research. This deals with theory as a set of expectations; of theory as ethics; of theory as responsibility and as the ownership of the substantive research.
Theory as process:
Theory as expectation is, perhaps, the conversation doctoral students rarely, or perhaps never, have with their supervisor. This type of theory lies in the expectations the supervisor has of the student, of what a doctoral dissertation is or should be. These expectations are generally alluded to or mentioned intermittently, but there is rarely a conversation in which they are set out and discussed comprehensively. Often these conversations occur when something is not quite right with the research project, and the student is failing to meet the supervisor’s expectations. All too often these expectations are expressed as vague generalities, rather than matters which are examined critically. But these expectations constitute the theory which guides the research project: the expectations directed at the project and its assessment—as a relatively abstract set of “understandings” guiding its execution, in Kantian terms, this is a theory that guides the practice of doing doctoral research.
Let me try to illustrate this. At SOAS, we have just finished marking LLM dissertations. We use a system of dual marking, and a colleague who is German and I were recently discussing dissertations we had marked together. He observed that different university systems, essentially different countries, have different research cultures, or different expectations that are directed at students’ research. For example, and we agreed on this, Middle Eastern students often produce wonderfully informed dissertations, but they can be shy to engage in evaluative argument and may tend not to question authorities. My colleague commented that in the German system, there is a focus on doctrinal exposition and the search for the essence of the law. When he was at a prestigious research institute during the Kosovo crisis when NATO was bombing Serbia, it was made clear that debates should focus on the exposition of the law and not the policy aspects of the situation. In France, on the other hand, doctoral students are expected to take a systemic approach to their research and elaborate structures of legal reasoning. In the UK and US, there is an emphasis on the “personal” nature of research. Doctoral students are expected to argue out and justify a thesis which they have formulated.
These views are no doubt stereotypical, but they do underline that even before you start on substantive research, you have to have a theory, an understanding, of what you are doing and what is expected. And try to discuss this explicitly with your supervisor. Find out what are you meant to do, but maybe question whether you should undertake your research in accordance with these expectations.
Another aspect of theory as process is the ethics of research. At times these can be very formal and set out in university guidelines, particularly where the research contains an empirical element of social sciences research, such as where research data is drawn from interviews. But the ethics of research also demands that you are honest in acknowledging debts to others’ work, and how they have contributed to your work. At its extreme, this underlies rules prohibiting plagiarism. Part of the doctoral process is learning how to do research, but also entails a degree of integrity. Plagiarism defeats both these considerations. It lacks integrity and, by its nature, prevents the person concerned from learning how to do research.
I also mentioned responsibility and ownership as part of the process theory. Professors Allott and Koskenniemi, and others, have pointed out that, as lawyers, we must conscious of what we are doing and why we are doing it and, above all, take responsibility for our arguments. This was also underlined in the final paper delivered by Tom Franck shortly before his death where he argued that the responsible lawyer is not the one who tells his client what the client wants to hear, but advises the client in terms of his long-term interests.
Allied to this idea, if any of you have read some of my work, you might have realised that there are some odd characters who pop up from time to time, such as the Marx Brothers and the modernist author Gertrude Stein. She was closely associated with the art crowd in Paris in the early C20th and disapproved of Picasso’s and Gris’ practice of signing one another’s paintings during their cubist period. She thought that artists and writers should take responsibility for the creation of a work or a text: how far should one take this idea of the responsibility for research work one produces? What might be its implications?
The move to substance:
The idea of responsibility perhaps starts to take us to questions of substance. Surely this responsibility must include the duty to scrutinise the presuppositions we bring with us to our work. In any research project, we need to be aware of the biases embedded in our approach, and the assumptions we make. Given restraints of time and length, it is inevitable that in any research project or publication, we will choose the aspects of law we most want to discuss, but in highlighting some, we downplay or ignore others. I mentioned rhetoric earlier. The inevitability of choice is recognised in rhetorical theory, where it is known as “presence”. One of the leading C20th theorists of legal rhetoric, Chaim Perelman, observed:
choice is…a dominant factor in scientific debates: choice of the facts deemed relevant, choice of hypotheses, choice of the theories that should be confronted with the facts, choice of the actual elements that constitute facts. The method of each science implies such a choice, which is relatively stable in the natural sciences, but is much more variable in the social sciences.
By the very fact of selecting certain elements and presenting them to the audience, their importance and pertinency to the discussion are implied. Indeed, such a choice endows those elements with a presence, which is an essential factor in argumentation.
We choose what we want to discuss, but that choice is never arbitrary. We must be aware of the biases and, perhaps, distortions that the fundamental choices made in research may have on the outcome. As Professor Koskenniemi has noted, one of the characteristics of contemporary international legal practice is specialisation, where sets of substantive issues are packaged into categories such as trade law or environmental law or human rights law. These specialisations “cater for special audiences with special interests and special ethos”. Each contains structural biases in the form of dominant expectations about the values, actors and solutions appropriate to that specialisation, which thus affect practical outcomes. The actors in these different fields conceptualise issues in ways which pull upon the biases encoded within that specialisation. While these biases cannot be eradicated, we should be aware of them, and question them. Identifying authorial predispositions, whether in our own or in others’ work, is crucial to evaluating the weight to be given to an argument. It might even be that the identification of the underlying assumptions destroys the argument because the argument turns out to be circular, with the conclusion contained in its fundamental premises. This is a real danger, so you owe it to yourself to scrutinise your assumptions, to question the progression of your arguments, to wonder if something is missing from, or over-determined in, your conclusions.
Some people claim to be hostile to theory—one of the most prominent authors who rejected theory was the late Professor Brownlie. This is an impossible position to adopt because, if there were no theory, then how could you make sense of your research data? If we go back to Kant, what a theory does is that it makes data comprehensible by providing a structure for its organization. So how can a researcher know what out there is “legal”, the material which should be investigated without some abstract conception of law? That is a matter for legal theory. It need not provide a water-tight definition of what law is and what it is about, but it can at least give basic criteria which enables the identification of what counts as “legal investigation” in the first place.
A rejection of theory really amounts to a conscious refusal to think about what one is doing, but it can also indicate a very conservative adherence or commitment to a hidden or latent theory that rests content with the status quo and does not either question or justify the substance and practice of international law. It suppresses analysis and critical evaluation of the research data.
This is perhaps particularly evident in international law which is often claimed to be one of the most politicised branches of law. I have never understood why the observation that all law owes much to politics is seen as an insight of the critical legal studies school. It is a fairly trite observation because all law is aimed at achieving some public purpose, about ordering life in one way or the other. And that is something else that goes back to the ancient Greek philosophers. So, of course, international law bears a close relationship to international politics, because it is a discourse about the way we structure, or should structure, the international system, and how States and other actors should behave in their mutual relations.
But that entails that in scrutinising our assumptions, we should also reflect on the broadly political presuppositions in our work, our “structural biases” as Professor Koskenniemi would call them, the expectations we have about the values, actors and solutions that matter, and how they should be classified. Think about who and what is important in your research. For instance, there will be a big difference in your conclusions if you classify a non-State armed group as bandits, criminals, terrorists, “unlawful combatants”, or a group attempting to realise its right to self-determination. You might also want to think about who has the power to make these classifications, and whose view of reality they impose.
The bottom line is that theory is fundamentally important in guiding research and placing a pattern on the research data, but it is also true that theory is often a product of time, place, and circumstance, as well as of personal predispositions. Thus, in 1944, in a letter to Isaiah Berlin, HLA Hart wrote:
I have pictures of myself as a stale mumbler of the inherited doctrine, not knowing the language used by my contemporaries (much younger) and unable to learn it…
Theory evolves and changes, but its importance never diminishes. At times, as Socrates found out, theory can be very dangerous. We don’t need to look far for examples of that. For instance, when I was doing my doctorate, I spent a lot of time reading theories of legal reasoning and was struck by the fact that many Eastern European, particularly Polish, theorists focused on logic and formal modes of reasoning. I wondered why, and I asked one of my former professors, Neil MacCormick, why this was the case. He pointed out that logic was a safe choice, as substantive or policy analysis could be politically dangerous during the Cold War.
So, while I hope that your thinking does not result in personal danger, I would encourage you to think, and even better if you can manage to think dangerously.
I realise that I have not discussed substantive theoretical approaches to any extent: the role that, say, analytical, conceptual, or critical theory might play in your research. But before you can decide if or how these might be relevant to your research, you have to decide what your research is all about, and that is not simply doing research for three or four years and writing a dissertation. Why are you writing a dissertation in the first place? What are the presuppositions, biases, and assumptions you are bringing to the process? Research is the pursuit of the unknown. If your conclusions simply replicate your initial assumptions, then how can that be research? What has been discovered? So please wonder about what Socrates might have said to Alcibiades in bed, and then wonder what Socrates might say to you, and you to him. To give Socrates’ aphorism a twist, an unexamined thesis is not worth doing. Or reading for that matter.
I realise that the title of this post is provocative. It came suddenly to me one afternoon, out of nowhere. It gave me the conceit upon which I could hang the discussion I wanted to make about reflection and self-examination and the need to evaluate the premises of argument provided by received wisdom—the departure from the ways of the fathers which Socrates encouraged and for which he was condemned. It cannot be denied that the title speaks of intimacy, but intimacy and self-examination are not alien to one another. It has been alleged that Professor Koskenniemi brought rock and roll to international legal research: I wonder if my subconscious has now made it erotic?