Editor’s Book Choices by Jan Klabbers

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Editor’s Introduction: EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days they will present their selections here on EJIL:Talk! They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Last week, we began with our Editor-in-Chief’s selection.

I read quite a few academic books, and tend to read them cover to cover. Partly this is facilitated by being on a lengthy sabbatical: at the moment I spend little time teaching and, blissfully, even less on faculty committees. And partly I read books, and read them cover to cover, because I feel that books can do things that other manifestations of the written word (the journal article, the blog, never mind the tweet) cannot accomplish: most arguments need some space to develop in full, and need to include some empirical support (in whatever form) in order to be convincing – otherwise they remain mere opinions, as indeed is perhaps too often the case even with journal articles, never mind tweets and blogs. As always, there are opportunity costs: I may read books, but I read relatively few academic articles, and usually merely skim the handful of blogs I tend to follow.

That is not to say that articles are by definition flawed. It was no doubt appropriate for Hersch Lauterpacht to write about the Grotian tradition in article form – 300 pages on the topic would have been tedious. By the same token, The Function of Law in the International Community could not be addressed within the confines of an article – 30 pages on the topic would have remained superficial. Thus, there is a time and a place for various manifestations of the written word – even, I suppose, however reluctantly, for the tweet.

My readings tend to be eclectic, even when I read simply for relaxation: from crime and espionage novels to Nobel prize material. Likewise, my academic readings are eclectic, and often somehow related to whatever topic has sparked my interest. Some factors are constant: I try to keep up with the law of treaties, which is fairly easy since no one writes books about the law of treaties other than, sometimes, in waves of fashion: in the 1990s people wrote on reservations, a decade ago on treaty conflict, and currently on treaty interpretation. I also try to follow whatever comes out on the law of international organizations, and in particular on the underlying history and theory of institutional law. From a distance and usually with some delay, I try and keep up with the external relations law of the EU (one of the best books I read in 2013 was on this topic: the excellent study by Mario Mendez). And then I have an interest in ethics, in particular in trying to find a way of applying what is known as virtue ethics to international affairs, so not surprisingly, much of what I read at the moment is in one way or another related to this.

So too my favourite readings of 2014. Part of the reason why I think virtue ethics is of relevance resides in the fact that global governance by and large escapes legal scrutiny, a situation that is confirmed by the paucity of writings on international law and global governance. With this in mind, the publication of Eyal Benvenisti’s Hague Academy lectures in book form under the title The Law of Global Governance came not a moment too soon.  In some 300 pages Benvenisti, in his customary lucid prose, sketches the relevance of global governance, and the relevance of finding ways to control it, while discussing events, opinions and judicial decisions in considerable detail. The book is not revolutionary in the sense that it would break a lot of new ground, but it is revolutionary in the sense that it is among the first general works on international law that frames issues, events, and the law in terms of global governance, and it is a masterpiece of composition. It does not, obviously, solve all riddles: the classically trained international lawyer might still wonder where much of the law controlling global governance derives its validity from, and to whom it applies: the classic questions concerning sources and subjects do not automatically disappear. But Benvenisti is surely correct in suggesting the relevance of global governance for students of international law, and his emphasis on accountability under the law suggests, as does much other work these days, a shift from sources and subjects doctrine to doctrines concerning responsibility or accountability. What matters is no longer whether an entity, or someone, is under a specific legal obligation, but whether it or they somehow do something wrong, and the ‘wrong’ is coming to be seen in isolation from any thoughts about legal obligation, regardless of the insistence in the ILC’s articles on state responsibility and the responsibility of international organizations on the commission of an ‘internationally wrongful act’.

Yet, responsibility regimes come with drawbacks. One is that, typically, they are backward looking rather than forward looking. A second is that they typically ignore any lasting sense of relationship, yet, as Daniel Warner already suggested more than two decades ago, a relational concept of responsibility would not be a bad idea. Third, responsibility, by definition, decontextualizes: any act considered nefarious is an act regarded in isolation from what preceded it, and typically also independent from the intentions of the actor or actors concerned. In other words, responsibility regimes at best only approximate, and sometimes cannot do much at all, as endless discussions over e.g. the responsibility of the UN over inaction in Rwanda have suggested: where there is no clear legal duty to act, it is difficult to find fault. Here then the virtues might come in, helping us in evaluating behavior, and helping actors in figuring out what to do in concrete circumstances.

Those concrete circumstances form the starting point of Fritz Kratochwil’s wonderful The Status of Law in World Society, a set of nine meditations (his term) on, well, legal theory, international law, political philosophy, the philosophy of science, international politics, the poverty of economistic thinking, and much, much besides. Having reviewed the work elsewhere (EJIL, issue 4 (2014)) I will not spend too much time on it here: suffice it to say that from the starting point of concrete political puzzles, Kratochwil’s appeal to regard legal reasoning as practical reasoning and resist the twin temptations of thinking of law as somehow ‘causing’ action and of drawing up universal principles that can never in pure form be applied in practice, has much to be recommended. In passing, he has a lot of thoughtful things to say about such phenomena as constitutionalism, global administrative law, and the prevalence of human rights. Kratochwil has spent a lifetime studying the vicissitudes of international affairs without much respect for disciplinary boundaries, and The Status of Law is the wise and thought-provoking result.

The third book I should mention here is a book that first came out in the early 1980s, and that I first read in the early 1990s, Alasdair MacIntyre’s hugely brilliant After Virtue. I did not get much out of it on first reading, but re-reading it now blew me away. MacIntyre’s starting point is that moral philosophy has become hopelessly perverted (my term) over the centuries, with all the attention for either rules and duties or for thinking in terms of costs and benefits bound to result in an impoverished moral life and thus, importantly, bound to result in societal indifference and conflict. Instead, he hopes to stimulate a return to the virtues and recognition of tradition: communities of practice emerge from traditions and require the virtues in order to enable us to lead a decent life. In the process, he comments on many of the most sacred cows of liberal society, from the enlightenment project to the Weberian bureaucrat. It would be difficult to do justice to the complicated and many-layered but intriguing and generally persuasive argument he makes – one should just read the book, and probably re-read it more than once. The one problem I have is with MacIntyre’s inherent conservatism. His emphasis on the importance of tradition (and in later works on bringing biology and the social together) is something I intuitively resist, yet he does not even allow me to make the point: referring to ‘intuition’ in moral discussion ‘is always a signal that something has gone badly wrong with an argument’ (at 69). After Virtue is one of those books that the reader (this reader, at any rate) will continue to struggle with and return to time and again, and it is one of those books that leave the reader in awe: it reaches dizzying levels of understanding and insight.

Finally, one book that I have not read cover to cover (it is not that kind of book) but that I want to acknowledge is the extremely useful Traité de droit des organisations internationales (2013), edited by Evelyne Lagrange and Jean-Marc Sorel, 1200 pages of in-depth contributions on numerous aspects of international institutional law: skillful and meticulous, this is doctrinal scholarship of the highest order.

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john.morss says

January 5, 2015

These book review pieces are great, thanks to all the Board members. I hope this can become a regular/frequent feature of EJIL: Talk! -- relatively informal discussions of books that are not necessarily new but are in effect being recommended -- perhaps not without reservations (if reservations are permitted...) -- and with a multi/interdisciplinary outlook. JRM