We, international lawyers, publish too much, way too much. We know it too well and yet continue to produce scholarship by the truckload. We carry on with writing even if it comes at the expense of the breadth of our reading or the quality of our teaching. We persist to write, quite sadly I must say, even if it ruins our days, our nights, our family, our health as well as the environment. We even feel depressed and complain to our dean when the many other duties of 21st century academic life obstruct our writing. What is even more remarkable is that we remain committed to the frenetic production of scholarship although we are well aware that most of our works end up dying unnoticed in the wasteland of academic overproduction.
Anyone in the field is familiar with this dismal state of affairs. It would be of no avail to dwell upon the foregoing and lament one more time academic overproduction and its externalities – of which I am complicit like so many of us. Instead, in this essay, I would like to think it is possible to make the wasteland of academic overproduction in international law a bit less of a scandal. More specifically, I would like to believe that, in the wasteland of academic overproduction, there are more than just truckloads of academic works that should never have been produced. I would also like to suggest concrete ways to make our works more innovative and imaginative with a view to reducing the amount of academic waste produced by international lawyers.
In the first part of this essay (Part 1), I will show how the format of our research output determines the space available for innovative and imaginative thinking. On this occasion, I will make the – possibly polemical – argument that edited collections are more likely to nest innovative and imaginative pieces of work than refereed journals. In the second part of this essay (Part 2), I will suggest some concrete actions to maximize innovative and imaginative scholarship, thereby possibly reducing the amount our works that end up in the wasteland of academic overproduction.
My hopeful belief that we can limit academic waste originates in a very modest phenomenological finding. I have come think that my scholarship is most creative and imaginative when it comes in the form of a book chapter. To give but a few examples, it is in book chapters that I have experienced the space to argue that general principles of law ought not to be thought as a source of international law, that the law of statehood originates in a post-1960 invention to control entry in the post-colonial society, that the law of responsibility of international organizations has maximized the power of international organizations to an extent never witnessed before, that the principle of legality in international criminal law has unleashed a remarkable expansionism in the field, that the common image of the ‘parties to the treaty’ provides a magic descendance to treaties in a way that shields those invoking them from any responsibility for anything done in the name of treaties, that methodology is the art of camouflaging the tragedy and cynicism of international lawyers’ routine, that critique of law can be very usefully nourished by the critic’s earlier belief in law’s necessities, etc. I sincerely trust that I would never have been able to articulate such claims in the form of a refereed journal articles. In other words, it is on the occasion of writing book chapters for edited collections that I have felt most disinhibited. In contrast, I feel that my articles in refereed journals have proved more predictable and conventional.
Before pondering this phenomenological finding further, two important clarifications are in order. First, I do not mean here that any of my abovementioned claims would have been censored had they been submitted to a peer-review process. Despite all its problems, peer-review continues to deliver decently well on its promises and helps us make our articles better (it is free feedback after all!). My point here is more fundamental. Had the abovementioned claims been destined to a refereed journal article, I would not have come to these ideas in the first place! The very argument I wish to develop here is that it is the very destination of a piece of scholarship for a refereed journal that carries censorship and not the review process per se. Second, I usually do not start writing pieces destined for edited collections with inspiration, passion, trepidation and a ready-made imaginative or inventive argument in mind. Often I find myself dragging my feet for weeks, wondering what I could write that has not been written, deploring my acceptation of yet another invitation to contribute a piece that would most likely die unnoticed in the wasteland of academic overproduction. And yet, when actually writing such ill-fated pieces, I usually feel disinhibited and liberated from all the invisible constraints that come with the destination of a piece to a refereed journal article.
I appreciate that the foregoing is a very counter-intuitive thing to say in a field like international law where publications in refereed journals are revered and weight way more than book chapters in terms of career-advancement, prestige, and fame. In this regard, it is a truism that chapters in edited collections are often derided as second order publications. I must acknowledge that I am sympathetic to the common charges made against edited collections – which is why I always ensure that the collections I edit do not outnumber the research monographs I write. Although some edited collections are gems – I think for instance of the stunning recent collections on Bandung, the Feminist judgments, or the Cold War – most edited collections, let’s be honest, are pretty unspectacular. I am even surprised that publishers continue to publish so many of them. And yet, although I am convinced that edited collections actually suffer from most of the ailments commonly attributed to them, I have come to think that the chapters hosted in these volumes offer more space for innovative and imaginative scholarship. This is why I suspect that tons of innovative and imaginative pieces of scholarship are lying out there, buried in all those edited collections that were dumped in the wasteland of academic overproduction.
The virtual peer-reviewer
I would refrain from universalizing the personal finding that I have just recounted. Yet, when looking at the publications list of many of my colleagues and friends in the field, I gather that some of their best works are nested, not in refereed journals, but in edited collections. I therefore take the liberty to venture an explanation for what seems to be more than a marginal phenomenon. In particular, I want to phrase (and frame) the debate in the following terms: How does the anticipated or contemplated destination of a piece of work repress the thought-forming process going therein and, why is it that destining a piece for an edited collection possibly disinhibit the author?
To describe my understanding of the disinhibition that comes with the destination of a piece of work for an edited book, I need to shed light on how I construe the censorship that comes with a piece being destined to a refereed journal. To verbalize my understanding of the censorship associated with the destination of a piece to a refereed journal, I would like to use the metaphor of the virtual peer-reviewer. The virtual peer-reviewer is the voice that speaks to us or resonates when we write a piece destined for a referred journal. This is the figure we let hover around our cerebral activities and thought-forming efforts when writing an article which is likely to undergo peer-review. We write with the virtual peer-reviewer in mind. It is important to emphasize that the virtual peer-reviewer is a projection by the author herself or himself, either based on past experience or on what she or he imagines the disciplining by academic journals to be. The virtual peer-reviewer is thus a creation of the author and the censorship I am speaking about here is self-imposed. In that sense, it is the anticipation of peer-review that censors, not the peer review process itself. This also means that the censorship at stake here is a censorship that constrains our writing and thought-forming prior to submission. In my view, the censorship of the virtual peer-reviewer is much more repressive than that conducted by the actual peer-reviewers to whom our pieces are sent by refereed journals. I have actually come to think that the virtual peer-reviewer haunting our writing of pieces destined for refereed journals is a very powerful innovation- and imagination-annihilating machine.
Let me elaborate on my understanding of the modes of repression by this virtual peer-reviewer. In my view, the virtual peer-review speaks to the author through a wide number of recurring questions: Isn’t your claim just an intuition? Isn’t all what you are claiming just deductive and the extrapolation of a contestable presupposition? Is there something like a claim in your piece? Isn’t your paper too discursive and short of a proper claim? Hasn’t your claim been made before? Do you really add anything meaningful and novel to existing legal debates and practice? Do you cite all the authorities on the matter? Is the central concept of your claim sufficiently theorized? Do you miss some important practice? Shouldn’t you go and read all the dissenting and separate opinions? Isn’t it a problem you refer only to the practice of the International Court of Justice? Aren’t you too exclusive in the scholarship and practice you draw on? Isn’t the style too unconventional or colloquial? Do you sufficiently cite existing scholarship or practice? Do you have sufficient footnotes in your piece? Isn’t your claim the reflection of a broader phenomenon that has been extensively studied in other areas of law or in other disciplines? Aren’t you going to upset your colleagues? Shouldn’t you be less critical of existing authors? What if judges or legal advisers read your piece? What if the colleagues you cite are elected as peer-reviewers of your piece? What if you are rejected? Could you take a rejection? What will you tell your dean (and your mom at Christmas) if you are rejected?
These are just a few of the questions which the virtual peer-reviewer repeats to the author as the latter writes a piece destined for a refereed journal. Interestingly, the author justifies the power she or he confers on the virtual peer-review by assuming that the questions raised by the virtual peer-reviewer usefully pertains to concerns the actual peer-reviewers may subsequently raise. The repression by the virtual peer-reviewer is thus legitimized by what the author anticipates the focus and contents of the subsequent peer-review process will be. By virtue of such anticipation, the author lets the virtual peer-reviewer operate as a huge thought-repressive apparatus, dramatically reducing the author’s space for innovative and imaginative thinking, and dragging the author into a predictable routine.
I do not mean to belittle the care with which editors of edited collection review those works submitted to them. Nor do I deny that a virtual peer-reviewer is also hovering over our thought-forming efforts when writing a book chapter. Yet, I believe that the virtual peer-review I have just described does not deploy itself with the same ferocity when we write a piece destined for an edited collection. The virtual peer-reviewer that speaks to us when we write a book chapter is much more benign. In my view, the benignity of the virtual peer-review in the process of writing a book chapter has to do with the personification of the review process. In the case of an edited collection, the author does not face the dark hole of the anonymized peer-review process but enters into a personified relationship with the editor(s). This is a relationship where all stakeholders are responsible for what they say, what they write, and what they decide. I contend that it is the anticipation of one’s interacting with a personified peer that facilitates imagination and innovation. What is more, the review process for an edited book is most often articulated around a collegial exchange where ideas are received, discussed, amended, finetuned, and possibly rejected. Such collegial exchange is commonly not possible within the rigid framework of the mechanical decision-making process of a refereed journal where types of exchanges are pre-defined and extremely limited (yes, no, revise & resubmit). After all, a straitjacket has never been conducive to imagination and innovation. This is why I strongly believe that the personification and collegiality of the review process for edited collections, even when carried out with the greatest severity, disinhibit potential authors and allow them to liberate their imagination and innovation. Incidentally, and however paradoxical that this may sound, being turned down for inclusion in an edited collection following a personal interaction with the editors feels much less humiliating than receiving a negative decision from a refereed journal through either an automatically generated email or a template-based message from an editor of the journal. For that reason, I believe one is much more daring and risk-taking when embarking on the writing of a piece destined to be a book chapter.