In his inaugural lecture, Roger O’Keefe, Professor of Public International Law at University College London, 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.
PACTA VIRVMQVE CANO
A long time ago, in a hemisphere far, far away, was born a man by the grandiloquently improbable name of Dionisio Hans Georg Hans-Georg Salamander. Reared in a home girt by sea and seared by summer infernos, he was a creature of both water and fire. As a boy, he enjoyed endless days at the beach and, as something of a juvenile versifier, endless nights in the embrace of Calliope, Euterpe, Erato or Thalia, depending on which was free and could bear to spend a warm summer’s evening humouring an underage wordsmith. Young Dionisio Hans Georg Hans-Georg did well at school and, after what could only be called a modicum of tertiary educational peripatesis, his grown self settled on a career as an international lawyer. Well, it could only be called that by a lawyer.
More precisely, D. H. G. H.-G. Salamander settled on a career as an academic international lawyer.
‘Pah!’, scoffed a City solicitor friend, informed one drunken night of Salamander’s vocation. ‘Those that can, do. Those that can’t, teach.’
‘Ho, ho!’, replied Salamander sarcastically. ‘Those that can, do. Those that can’t, solicit.’
Absurdly early next morning, nursing a hangover, a cut lower lip and the forlorn wish that his jeu de mot had been by way of l’esprit de l’escalier, Salamander was up and at ’em, slaving over a manuscript to the inexorable deadline of some unrelenting editorial Fury. Absurdly early … Inexorable … L’esprit de l’escalier … Lo spirito … Der Geist … Der Volksgeist … Der Rechtsgeist ... L’esprit des lois … La solidarité sociale … Le dédoublement fonctionnel ... Voiceless labiodental fricative on cut lower lip … La compétence de la compétence … Forlorn … Forlorn! The very word was like a bell to toll him back from the sibilant fricative of article 36(6) of the Statute of the International Court of Justice to his sole self! And sole was the word. It was a solitary calling. Eunomia was a demanding mistress. To mix metaphors.
In terms of the legal philosophy to which he subscribed, D. H. G. H.-G. Salamander was a positivist. Given the practical difficulty in a world of sometimes radical moral and political pluralism of ascertaining from reason an objective notion of the good, he believed that the inter-subjective approximation of the latter derivable, directly or at one adjudicatory remove, from the premise that international law was what states—through their governments, as the representatives of their peoples—mutually agreed it to be was the most legitimate and prudent basis for an international legal order.
This was not to say that said Salamander was ideologically wedded to the privileged position of states within the international legal order of his day. International legal positivism, to his way of seeing things, had nothing inherently to do with states. What legal positivism meant was simply that the law was whatever an authorized temporal lawmaker validly said it was (or ‘posited’, as in ‘lay down’), instead of being wholly deducible from certain first principles or divinely ordained; and in the international legal system as it then stood, it just so happened that the authorized temporal lawmakers were first and foremost states. If these states were to agree the following morning, preferably not absurdly early, that international law was whatever a global legislature of everyday individuals or a troika of sage, prophet, and poet deemed it to be, international law would remain a positivist legal system but one in which states no longer played a formal role in lawmaking. Anyway, the essence of positivism, it seemed to Salamander, was an adherence to what is, rather than to what a priori principle says should be, and it was an observable fact that states had acquiesced in at least the loosening of their monopoly on international lawmaking, conceding some role to international organizations and, to all intents and purposes, to international courts and tribunals. Moreover, to say that international law was what states posited it to be was to enunciate no more than the formal juridical position. It was not to deny the existence of a much larger, heterogeneous cast of actors who, in the real world of political and other social contestation, influenced the international lawmaking policy of governments and, through them, of the legal constructs that international law called states.
Having reproduced the foregoing apologia pro vita sua in half a dozen applications for a chair, Salamander had it down to an ars finis. No, ‘ars’.
As it was, Salamander had always struggled to see what was inherently wrong with states, as the term was used in international law. A ‘state’ within the meaning of international law was no more than a legal person, a juridical construct, a formal juristic concept abstracted from political and other social reality, even if it was mapped onto that reality. In the words of the immortal Austrian, the state for the purposes of international law ‘[was] not a biological, psychological, or sociological unit; it [was] … a specifically juristic unit’, ‘the personification of a social order, constituting the community we call “state”’ [Hans Kelsen, Principles of International Law (New York: Rinehart & Co, 1952), 100].
As far as Salamander could tell, the story went something like this.
In the beginning God created the heavens and the earth. Fast-forwarding a few frames, God said, ‘Let the water under the sky be gathered to one place, and let dry ground appear.’ And it was so. He or she—the jury was still out—called the dry ground ‘land’, and the gathered waters he or she called ‘seas’, saw that it was good, had a breather, did a bit more work, had another breather, created man in his own image, male and female he created them, giving us a hint as to the gender question, the serpent appeared, the apple got ate, the happy couple were cast out, they were now less happy, if more knowledgeable, they threw on some clothes, were fruitful and multiplied, probably not in that order, and their descendants, as many as the stars in heaven and as the grains of sand on the seashore, arranged themselves in orderly fashion—albeit maybe with a smidgen of terminological, not to mention earthly and celestial, overlap—into thrones, dominions, principalities, and powers.
In the alternative, and speeding up proceedings somewhat, there was a whopping great but oxymoronically silent bang, primordial slime, mitochondrial DNA, apes (aquatic or otherwise), a square-jawed lass called Lucy, homo erectus, a brief period of censorship, homo sapiens, who, like the unhappy couple, was knowledgeable, homo sapiens sapiens, even more so, and eventually the aforementioned arrangement into thrones, dominions, principalities, and powers.
Now some of these TDPPs were good, some bad, some happy, some sad, some monarchical, some republican, some national, some multinational, some unitary, some federal, some democratic, some depends on what you mean by democracy, some secular, some theocratic, although the amount God rested cast doubt on his or her fitness for office. Regardless, however, or perhaps on account of their many and varied contingent qualities, these TDPPs, having no common judge but needing legal rules among them, duly acknowledged the existence of an inter-TDPP law, in which the fundamental juridical unit was, no prizes for guessing, the TDPP, good or bad, happy or sad, a unit which came to be referred to variously as civitas, respublica, gens, the more personalized princeps or souverain, and eventually, in a drive for terminological standardization, the state.
In this light, the standard critique of the state-centrism of this interstate—or, courtesy of the auto-iconic Mr Bentham, international—law was, to Salamander’s mind, misdirected. The problem was not that the legal community we call ‘state’ was the radical site of international law. The problem was some of the social orders of which the state was the legal personification. States as such were not the issue. Bad governments or systems of government were. There were plenty of bad apples, but no-one blamed the apple. Anyway, had not these selfsame states voluntarily fettered their governments’ freedom of repression through international human rights law (including minority rights and the rights of indigenous peoples), the law of non-international armed conflict, and like international legal goods?
Furthermore, could an international lawyer not conceive of the state in favourable terms, as the juridical vehicle through which a people, in the sense of the entire population of a state, exercised its right to self-determination? Was the state, sovereign and equal with others, not simply the formal international legal guise in which the people clothed in it—without prejudice to the existence and rights of any peoples forming a subset of that people—freely determined its political status and freely pursued its economic, social, and cultural development, in the words of the two international covenants?
All of this looked to Salamander like the road to human flourishing, not perdition.
As one may have guessed, D. H. G. H.-G. Salamander was also a legal formalist—what some would call a ‘black-letter’ lawyer, which was certainly more promising than a ‘dead-letter’ lawyer but less arousing than his or her ‘French’ counterparts. He adhered to the orthodox methodological disciplines of international law, looking for answers to international legal questions within the international legal system itself, identifying, interpreting, and applying the positive law by way of a strict application of the system’s framework rules and concepts and its general canons of legal reasoning. To his perhaps-simplistic way of seeing things, legitimacy compelled the faithful giving effect to the rules of the game settled on by the game’s recognized rule-makers. Conversely, he viewed at least a certain brand of anti-formalism in international law as the Trojan horse or useful innocent of hegemony, whether geopolitical, institutional or personal. At a more fundamental level, truth compelled fidelity to the logic of the thing, and Salamander had a thing for truth.
Salamander was not deaf to or uninterested in the instrumental potential of international law, scrupulously practised, as a means of emancipation. But by temperament he cleaved to a modest vision of the role of the international legal academic in such things, holding a sanguine estimation of his own likely influence on the international legal order.
As for international law’s geopolitical, politico-philosophical, moral-philosophical, and sociocultural contexts and influences, past and present, Salamander saw these as worthy and fascinating objects of inquiry in their own right. He valued too the insights of legal philosophy, linguistics, and hermeneutics, while applauding the empirical turn in international legal scholarship. Nor was he hostile to critical-theoretical approaches, which played their salutary subversive role in an ecumenical college as a kind of loyal opposition, even if again by temperament, which included his semantic hypersensitivity, he himself preferred not to ‘problematise’ things but to make them as simple as possible, though no simpler. Old-school natural law also had its place, provided it was invoked in mindfulness of its particular intellectual heritage and as no more than a critical standard against which to measure the desirability of a positive rule, rather than to deny that rule’s formal applicability. In all things academic, Salamander’s sole yardstick was a good argument. If truth be told, moreover, alongside the good arguments of these other schools he could feel inadequate, a journeyman, a trundling medium-pacer in the midst of their fast, fierce bouncers or fizzing flippers and googlies.
No, D. H. G. H.-G. Salamander’s bugbears roamed elsewhere.
Salamander took issue with academic international lawyers and even more so judges who claimed that the resolution of this or that international legal question was not what a faithful adherence to the rules of the game suggested but what their partial account of the values purportedly reflected in the law was said to suggest. In Salamander’s view, this essentially populist opposition of positive law and the values underlying it—between mere ‘black-letter’ law and some more authentic spirit of that law—was spurious. The positive law was the values, or at least a particular formal embodiment of those values. This being so, recourse, in preference in effect to the application of the positive law, to what were said to be the values underpinning it was misconceived at best and special pleading at worst. Moreover, positive rules of international law, whether posited directly by states or created by the judicial application of higher-order positive rules, were typically the embodiment not of unalloyed values but of a pinchbeck, compromise sort of value, in the assay of which by some international lawyers there was a predictable tendency to neglect the base metals.
None of this meant that an international lawyer was not to apply those established rules of treaty interpretation which looked to the gist of a provision—reading the text in the light of the treaty’s object and purpose, considering the rationale for the provision in accordance with the uncodified maxim ut res magis valeat quam pereat, even cautious recourse to the perilous travaux préparatoires. These rules of interpretation were part of the rules of the game. Moreover, they related to ascertaining the content of the positive law in the first place, not to effectively displacing the application of that law in favour of its purported raison d’être. Nor did international legal formalism leave no place for the teleological application of policy infra legem, provided that this was genuinely infra legem and that the policy appealed to was manifestly privileged by the regime of international law in question, by the general body of international law or by general canons of legal reasoning. Even less did a formalist approach to international law exclude the application in appropriate international cases, as permitted again by the rules of the game themselves, of those elementary principles of equity common to the world’s legal traditions.
As for those academics and judges who would substitute for the unswerving application of a rule of positive law policy considerations wholly extraneous to it, they were beyond the pale. This was the job not of the lawyer but of the legislator, who, as it was, displaced the applicable rule of positive law not with values as such but with the embodiment of those values in the specific form of a new rule of positive law.
Only slightly less far up his nose got those academic international lawyers and judges who, while paying lip-service to the rules of the game, played fast and loose with them in pursuit of a priori commitments overt or covert. He acknowledged that complete divestment of the jurist’s ego was impossible. But this banal insight did not mean that the jurist could not strive for an account of the positive law that was as objective as humanly possible. Nor was he fool enough to think that the answers arrived at by applying the rules of the game were in every instance clear—indeed, anything but. The legal system provided for by these rules was as much inductive as deductive; its functioning was heavily dependent on the blurred calibration of factual and legal-factual appreciation; competing rules were often in play; and so on. It was not an exact science. Pace the immortal Austrian, it was not really a science at all. In short, there were always hard cases, points on which reasonable people could differ, with predicted outcomes per force stated in terms only of probabilities. But this was not the same as radical indeterminacy. The convincing existed when the compelling did not. There existed in each case a penumbra of reasonableness, a finely-enough calibrated inter-subjective standard, a generally shared sense of where the line was to be drawn, beyond which an answer reached by the purported application of the rules could be said to be wrong. Now, simple muddle-headedness was excusable. Everyone made mistakes. Understandable too was legal advocacy by legal advocates. It was the job of counsel in litigious proceedings to spin the law in the way most favourable to their client, even if there still ought to be self-restraint, a self-policing adherence to some sort of internal discipline in the higher interest of what, by no coincidence, was called the discipline. The same, mutatis mutandis, could be said on both counts of legal officers of campaigning NGOs. Their job, within limits, was to campaign. There was even nothing wrong with international legal academics speaking and writing explicitly de lege ferenda, in declared reformist mode. No, the kick of Salamander’s hobby-horse was reserved for those international legal academics and judges who disingenuously passed off policy as lex lata.
In D. H. G. H.-G. Salamander’s eyes, these three exasperating types, which in essence were one and the same, wilfully, knowingly, and unacceptably bent the agreed rules. In the pungent words of the Faustian German, quoting an imprudent Frenchman, they wanted to cheat. They sought to exempt themselves from the ineluctable distinction between ‘is’ and ‘ought’ on which positivist international law—the international legal system as it had functioned since the temporal eclipse of natural law—was founded. And the scorn that not a few of them poured in the process on the formalist positivism of this agreed system riled Salamander. So it was with a dark, delicious pleasure that he was wont to quote that true bearer of light from University College London, the sceptical, quixotic German, who wrote all those years ago in Current Legal Problems:
‘International lawyers … are prone to suffer from a professional disease against which other members of the legal profession are remarkably immune. … The reasons for this idiosyncrasy are not far to seek. The inherent weakness of international law in an overriding system of power politics; an understandable temptation to hide this state of affairs from oneself and others by means of elaborate images; … and a revivalist movement towards a new naturalism which lacks so conspicuously the innocence of mind of the early naturalists—all bear their measured share in producing the phenomenon of the evangelist international lawyer.’ [Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ (1950) 3 Current Legal Problems 263, 263.]
And by no means were the evangelists to be found only among the fluffy bunnies. The hawks too had their unhealthy share of proselytising ideologues.
But what drew D. H. G. H.-G. Salamander to a formalist vision of international law went beyond the jurisprudential.
International legal formalism provided an outlet for what Salamander cared to think of as his aesthetic sensibility. There was a Vitruvian beauty in the systematic logic of international law’s formal reasoning, a venustas to complement the discipline’s firmitas and utilitas. Things had their pleasing place. Salamander felt called to maintain and even refine this attractive intellectual architecture.
Salamander revelled too in the play of formal international legal reasoning, relishing what the jocular German saw as ‘the characteristic lightness and sense of relief we find in playing’ and the ‘energeia [with] its telos within itself’ that was ‘[t]he being of all play’ [Hans-Georg Gadamer, Truth and Method (first paperback edn, trans. rev. Joel Weinsheimer & Donald G. Marshall, London/New York: Bloomsbury, 2013), 112 and 107]. It was no coincidence that Salamander referred to the normative framework of the international legal system as the ‘rules of the game’. By this he did not intend that international law was mere recreation, idle amusement, a parlour game like a round of charades, even if there were shades of musical chairs when it came to the big professorships. In the further words of the merry Marburger, play ‘contain[ed] its own, even sacred, seriousness’ [ibid., 117]. What Salamander meant, borrowing again from the humorous Hessian, was that international legal reasoning comprised a closed universe in which the ‘purposive relations’ of ordinary human existence were ‘curiously suspended’ [ibid., 107]. It was a mutually-agreed imaginary world with ‘its own proper spirit’ , where ‘the player’s conduct [was] tied to the make-believe goals of the game’, rather than to ‘the world of aims’, where that player ‘experience[d] the game as a reality … surpass[ing] him [or her]’ [113-14] and where ‘the player’s actions should not be considered subjective actions, since it [was], rather, the game itself that play[ed], … draw[ing] the players into itself and … itself [becoming] the subjectum of the playing’ . International legal reasoning, in other words, was ‘its own measure’, transcending ‘the question whether it [was] … real … because a superior truth [spoke] from it’ , a truth that was ‘properly neither “believed” nor “not believed” outside the play situation’ , ‘the truth of play’ , the truth of the logic of the thing. In this way, a formalist vision of international law appealed not only to the homo ludens in Salamander, who, with Chesterton, believed that the true object of all human life was play, but also to the seeker in him of what was true.
Salamander also found communion in the universe of formal international legal reasoning. He felt himself, perhaps quaintly, part of a tradition spanning generations and continents—a tradition which was ‘always different, … always new’ [ibid., 220], whose ‘historical life … depend[ed] on being constantly assimilated and interpreted’ . In this living canon he ceased to feel alone. Indeed, in the internalization, actualization, and revitalization of this common dogmatic and hermeneutic heritage, Salamander lost sense of the dancer for the dance. Or ‘dahncer’ for the ‘dahnce’. Let’s call the whole thing off.
In these various senses, international legal formalism felt, to Salamander, like the sea, with its shapely beauty, its ‘rest[ing] absolutely within itself’ [ibid., 116], its oneness over time and space. It was perhaps no coincidence that the law of the sea occupied a central place in the history of … Actually, it was complete coincidence. What a load of bollocks! Thank God for ‘Delete’, he reflected, relieved.
In addition, Salamander relished the craft of black-letter international lawyering. The international lawyer, like the sawyer and the bowyer, was the exponent of a skill and know-how gained by apprenticeship, honed by experience, and wondrous to behold in the hands of a master. The business of international law rested on a seasoned judgment and what a London cabbie would call ‘the knowledge’—on ‘a kind of tact’ and ‘a well-stocked memory’, to quote once more the Teutonic tickler-pink [ibid., 5]. This practical aspect appealed to the homo faber in Salamander, who, like your typical bourgeois professional, sometimes yearned for the more grounded life of the cooper, the cordwainer, the mason, the shipwright, the organic wine-maker, the artisan patissier, the acorn-fed cerdo ibérico swineherd or the virtuoso landscape architect, even if he lacked the capability. Shoddy workmanship irked him, shysters even more so.
Finally, Salamander viewed black-letter international lawyering as a form of service. It involved, in the words of Heidelberg’s high priest of hermeneutics and hilarity, subordinating oneself to the ‘superior claim’ the rule made [ibid., 332], placing oneself at ‘the service of what [was] considered valid’ [ibid.]. And Salamander had a thing for service.
Part II is available here