EJIL: Talk!

I would like to comment on a significant part, albeit a rather small one contentwise, of Dr Sinclair’s very interesting book – To Reform the World: the use of administrative law analogies in relation with the making of modern international organizations. Before going further, we would need to agree on a definition of analogy. Popular culture may help in that regard. According to Britta Perry, a student at Greendale Community College in the TV Show Community (video available here), an analogy can be defined as “a thought with another thought’s hat on”. In her convincing de Beauvoiresque analogy between “weddings” and “little girls’ tea parties”, Britta however highlights three differences between them, while analogies are generally focusing on “accepted similarities between two systems” (P. Bartha, “Analogy and Analogical Reasoning”, The Stanford Encyclopedia of Philosophy, available here).

Legal analogy, for Chaïm Perelman and Lucie Olbrechts-Tyteca, is not defined as an imperfect resemblance, but as an identity of relations within different domains (See C. Perelman & L. Olbrechts-Tyteca, La nouvelle rhétorique. Traité de l’argumentation, PUF, 1958, p. 500). Analogy then implies that a is to b like c is to d. The goal is to explain a relation that is unknown (a to b), called theme, with the help of a known relations (c to d), called phore. The theme states what one means or wishes to prove, while the phore states what one says so that it may better be expressed or proven. For example, One good piece of news does not guarantee happiness is like one swallow does not make a summer (O. Reboul, “The Figure and the Argument”, in M. Meyer (ed.), From Metaphysics to Rhetoric, Kluwer Academic Publishers, 1989, pp. 175-176). The phore is generally more concrete, or at least more familiar, than the theme. It is the resemblance between the two relations which allows us to infer the fourth term from the three others. We prove b given a, c and d, since the relation between a and b resembles that between c and d. The point of the reasoning, in this example, is that “one has no right to generalize”.

We should also distinguish analogies from metaphors. The metaphor occurs when analogy is condensed through the omission of certain terms. It reduces the resemblance to an identity by evacuating the difference. One can say to reassure an old person anxious about death that it is only a kind of sleep. This metaphor implies an analogy : that death is to living like sleep is to waking (O. Reboul, “The Figure and the Argument”, op.cit., pp. 175-176).

I would like to focus on one particular specie of analogy, the one in which the phore (the known relation) is domestic law, also known as domestic analogies. Read the rest of this entry…

Over the contest hovers, as in all ages, a concept of society formulated and fostered by intellectuals. This is not a reflection of reality, but a goal and hope of good men.

P.E.Corbett, Law and Society in the Relations of States (1951)

The conviction in a linear teleology of progress is fundamental to modernity – and to liberal democracy, its exemplary political formation. The supposition is that history has a telos, and that telos is liberalism. Yet in this era of profound disorientation, against the backdrop of increasing attention to the rise of ‘illiberal’ democracies, history is, as Wendy Brown has commented, becoming ‘both weightier and less deterministic’. The idea that law has evolved to some higher state of reason from which pinnacle it can trump over politics and ideology has proved an imaginative cul-de-sac. Attention to history is important, not to reinforce an artificial progress narrative, but to engender consciousness of the fluidity of politico-legal discourse and its capacity to change (see Martin Loughlin, Sword and Scales (2000), at 225-6).

In To Reform the World, Guy Fiti Sinclair has written a book of astonishing reach and intricacy. Its scope brings to mind the words of Woody Allen, ‘Can we actually “know” the universe? My god, it’s hard enough finding your way around Chinatown’. Yet this is not a book purporting to provide a blueprint for global order. One of the most interesting and insightful contributions of the book, and something that sets it apart from other international legal work on global governance, is its resistance to normative conclusions. Sinclair has developed a work of critical history, mapping the ‘constitutional growth’ of international organizations, yet without presenting this development as in any way teleological. Instead, the effect of the book is to debunk quietly yet powerfully any idea of the inevitability of any particular theory of global governance.

A theory that is never expressly critiqued, yet clearly in the frame, is that of liberal constitutionalism in global governance. Sinclair’s critical engagement occurs not on the already saturated theoretical plane, nor as a doctrinal exercise demonstrating how public law discourse permeates the practice of treaty drafting, adoption, interpretation or reform. Instead, his focus is on the everyday discursive level – the ‘rationalities’ and ‘technologies’ of power – tracking the deployment of constitutional discourse in the everyday practice of international organizations, namely the International Labour Organization, UN peacekeeping and the World Bank. The picture that clearly emerges is of international constitutionalism as a scholarly movement – yet with an international bureaucratic wing. The book reveals how the international civil servant has deployed the metaphor of constitutional growth to carry the logic of liberal reform into international organizations through a range of public-law related discourses, doctrines and techniques of interpretation. Read the rest of this entry…

I associate Guy Sinclair’s To Reform the World: International Organizations and the Making of Modern State very strongly with its cover image, Kandinsky’s ‘Circles in a Circle’ (1923). Circles are privileged visual representations of the global, but they only became so at a moment when scientific innovation permitted the apprehension of the earth as a globe. This is a helpful reminder that our (global) vision is tied intimately to the perspective from which one sees. This concern with perspective is central to Sinclair’s work. At its core, the book explores the construction of a novel institutional and political site from which to survey, and thus act on, the world. In what follows in this post, I take perspective as a central thread for some diverse comments on the book: the perspectives which Sinclair opens up, and those we might explore in future. 

Seeing within and with law

There is currently an explosion of historical work probing the social, intellectual, institutional and technological shifts associated with twentieth-century transnational activism, international organization, and what has now come to be called ‘global governance’. Sinclair brings to this scholarship a distinctive focus on law. The question animating this book is a legal one, or at least reflects the stance of a modern public lawyer: how are we to make sense of the expansive activities undertaken by international organizations (IOs), given their parsimonious founding texts? Once the question is posed, however, Sinclair does not confine himself to answering it from a perspective internal to law (i.e., determining whether a given exercise of powers is valid in accordance with the applicable law at the time). Rather, he reformulates it into a broader, socio-legal question: How is it that the expansion of the powers of international organizations came to seem necessary and desirable despite lacking a clear textual justification?

Interestingly, although the book transcends the internal perspective, one valuable contribution of To Reform the World is the way it complicates the law itself. The book reveals legal advisers, the Permanent Court of International Justice and the International Court of Justice dealing not with a set corpus of principles and rules, but with a repertoire of avenues into thinking about powers: treaty interpretation and special rules applicable to texts analogized to constitutions; thresholds for evidence required to establish that a given situation is within express powers; notions of implied consent; the jurisgenerativity of practice (whether articulated as customary international law or as questions about where the inner workings of bureaucracy shade into law); and notions of emergency as a basis for exceptional, even extra-legal powers. These different avenues take legal analysis in different directions. The evolution of international organizations also complicates the relation between ‘law’ and a hinterland of institutional practice from which it emerges, in which it operates, and to which it is directed. Even taken on its own terms, the law here is rather unsettled — and arguably remains so. (On the intellectual challenges of integrating international organizations into a largely statist international legal order, see Fernando Lusa Bordin, The Analogy between States and International Organizations). Read the rest of this entry…