EJIL Editors’ Choice of Books 2015: Jean d’Aspremont

For all of those scholars cultivating a generalist expertise of a topic, the contents of each year’s readings can vary dramatically. For them, looking back at such readings can prove very illuminating as it can lay bare huge fluctuations in the literary and scholarly sources that serve as inspiration. In contrast to the very doctrinal works I read and reported on last year, my readings of the last 12 months have been primarily devoted to theoretical materials meant to feed into my work on the structure of legal argumentation as well as the professionalization of international law. This may explain why none of the books I list here qualifies as international legal scholarship properly so-called. Yet, in the light of the insights I gained from them, I have come to consider these books as ‘must reads’ for any generalist international lawyer interested in looking beyond the mere mechanical deployment of the formal modes of legal reasoning imposed by the discipline. These also are books that are one click away for international lawyers in wealthy parts of the world as they are published by mainstream publishers and available in most online bookstores.

Before sketching out their content, an observation is warranted on the extent to which not only the selection of our readings but also reading itself is prejudiced by the works and the projects we have in the making. What we make of what we read is very much contingent on what we expect from such materials and even more on what we hope to find therein. In this sense, when we read for scholarly purposes, we turn ourselves into hungry hunters with some pre-reflective preferences or expectations about the type of meat we want to bring home – and, thus, the type of insights we want to present in our own scholarship. The risk is thus that our prey ends up being embellished or corrupted by those pre-reflective preferences or expectations. This is why our reading is, to a large extent, performative as it constitutes the insights we gather from the materials from which we draw inspiration. This very elementary observation explains why, for each of the books mentioned below, I take pains to say a few words about my pre-reflective preferences at the moment of reading – that is, the context in which the reading was done. It may explain why colleagues, in a different context and in relation to different scholarly projects, may have made something radically different of these texts. It should finally be highlighted that my listing of the following books does not entail any value judgment about the intrinsic merit of the theses defended therein, let alone their direct transposability to international legal debates. My choices for this year should more simply be read as refreshing calls to shed some common assumptions found in international legal scholarship.

Forget Rules and Sources: Nils Jansen, Non-Legislative Codifications in Historical and Comparative Perspective (2010)

As I have argued elsewhere, international lawyers have this tendency to construe most structures of argumentation as sets of rules properly so-called. Since structures of legal argumentations are understood as rules, these are said to originate in the sources of international law. This means that everything in international legal argumentation is supposed to look like a rule and emanate from those processes recognized as being law creative by the doctrine of the sources of international law. Nils Jansen’s book constitutes an excellent reminder of the limitations of such rule-based and source-based understandings of the structures of international legal argumentation. It is not so much that he recalls the self-referentiality inherent in rule-based and source-based understandings of the structures of international legal argumentation, of which international lawyers are probably aware but not too bothered by. More fundamentally, he provides a well-documented discussion on how authoritative modes of legal argumentation are designed outside any formal rule-making process. Drawing on the examples of ius commune, the Principles of European Contract Law, or the UNIDROIT Principles, he demonstrates how such structures of legal argumentation were cast by some professionals and how authority was subsequently ‘staged’ without any detour through rule-making or sources. His work, which reviews the various techniques to ‘stage’ authority in the absence of rules and sources, provides support for the contention that the authority of the main patterns of argumentation needs neither rules nor sources as it is autopoietically created by the professionals that exercise this authority. Applying Nils Jansen’s model to modes of legal argumentation associated with sources or responsibility, Article 38 of the Statute of the Permanent Court of International Justice or the Articles on State Responsibility ought not to appear as laying down international rules properly so-called. Rather, these texts should look like the authoritative containers of some central modes of legal reasoning whose authority was subsequently staged by the professionals of international law. It will not come as a surprise that while reading Nils Jansen’s book on non-legislative codifications and working on a book pertaining to the structure of international legal argumentation, I found support and additional illustration for my argument that mysticism is at the heart of the making of international legal arguments.

Forget Stanley Fish: Michael Polanyi, Knowing and Being (2013)

When modelling the idea of a community of international lawyers and the social constraints on interpretation, international lawyers traditionally come to rely on Stanley Fish’s famous – or infamous – notion of interpretive community. Indeed, there exists a great number of works that draw on the descriptive and analytical categories designed by Fish. I have used his various frameworks myself quite extensively. The success of Stanley Fish among international lawyers is conspicuous. Oddly enough, the work of Michael Polanyi, despite his similar efforts in modelling communitarian dynamics and constraints has not enjoyed the same popularity. It is on the occasion of my reflection on the variety of models available to theorize the socialization of international lawyers as international lawyers that I came across the earlier-mentioned collection of essays assembled by Marjorie Grene, which provides a condensed and useful foray into the theory of knowledge of Polanyi. My attention was first drawn by his essay entitled ‘The Republic of Science: Its Political and Economic Theory’ from 1962. In this essay, Polanyi makes the claim that the community of scientists is structured and organized as a body politic and functions according to economic principles similar to those by which the production of material goods is regulated. In this context, it is no surprise that authority is not distributed evenly in the scientific community. In developing this idea, Polanyi makes the point that it cannot be otherwise, and it is of no avail to seek to flatten the scientific field and purge it from its power structures. Short thereof, the field simply would not work. Polanyi simultaneously sheds light on a fundamental tension at the heart of any scholarly enterprise, namely the tension between the criteria of plausibility that favour conformity with existing structure and the value attached to originality that encourages dissent. He argues that this internal tension is essential in guiding and motivating any scientific work.

A book sometimes nurtures reflections in relation to several of the writing projects we have in the pipeline. This was the case for me with this collection of essays by Polanyi. As I was also working on the structure of international legal argumentation at the time, my attention turned to another essay, namely ‘The Growth of Science in Society’ from 1967. In this essay, Polanyi discusses Ernest Nagel’s claims that we do not know the foundations of our structures of argumentation and that we should refrain from questioning them. Polanyi makes the point that the lack of philosophical foundations has not damaged the authority of science but, rather, increased it. Here too, I have found in this discussion of Ernest Nagel useful support for my own claim that the structures of international legal argumentation are mystical. It simultaneously reinforced my belief that foundationlessness does not invalidate legal arguments. To the contrary, this is what makes them possible.

Forget the Cacophony and the Suspicions against Multi-Disciplinarity: Harold J. Berman, Law and Language: Effective Symbols of Community (1969)

While exploring how to understand the consequences of the socialization of international lawyers as international lawyers and their feeling of belonging to one linguistic community, I was struck by the work of Harold Berman. Reading Harold Berman can only prove very refreshing for an international lawyer. In this work from 1964, Berman claims that we are entering into a new age of integration and reconciliation in law and that we would finally overcome false opposites. Through this book, he seeks to spearhead a culture of reconciliation and tries to recast the legal language in a way that makes it accessible. His reconciliatory agenda is made possible by his notion of ‘communification’ whereby he sees language as being as much about meaning making as it is about the reciprocal transfer of meaning – a multi-dimensionality and reciprocity that he seeks to capture with the idea of ‘speak–listen’. He contends that language is what brings us together. It is a process of creating social relations that presupposes a transfer of meanings not only from the speaker to the listener but also vice versa – the response of the listener being presupposed in every utterance of the speaker. He acknowledges that language unites as much as it divides us. Yet, these divisions are only cognizable because there is somewhere a common language. This is why, in his eyes, by ‘speak–listening’, we sustain, as much as we renew, the community to which we belong. At the same time, Berman makes the claim that the language of law should be nourished by poetry, liturgy, literature and art. He believes in the possibility of a community of humanists and intellectuals all sharing insights with one another. Thus, he stands out as an early defender of multi-disciplinarity – at least as it is understood today – and promotes it in a reconciliatory way that contrasts with the multi-disciplinarity promoted by the New Haven Law School.

In the 21st century, as international lawyers seem embroiled in cacophonic turf wars and find multi-disciplinary suspicious, reading Berman confronts them with the genuine belief in the possibility of a unified linguistic community of international law that can simultaneously reach out and speak to other linguistic communities. In this sense, reading Berman makes us travel in time and brings us back to an era when international lawyers could dream of being part of a larger intellectual and humanist community.

I cannot help wrapping up these three short sketches with a remark about the actual impact of a book on one’s scholarship. It is indeed tempting to seek to evaluate the impact of a given work on an author by the extent to which the latter explicitly refers to the former. When writing this short overview, I returned to the manuscripts I had composed with the help of the earlier-mentioned books. I was perplexed by the extremely limited number of references I had made to these books. Needless to say that I double-checked whether I had been diligent enough in referencing. It turned out that there was no doubt I had. Yet such verification reminded me that a quantitative evaluation of referencing does not tell us anything about actual influences and central sources of inspiration. What matters is the referencing at the key moments where the conceptual and architectural choices behind an argument are spelled out and where some central paradigms are endorsed or rejected. And, yes, in all of those manuscripts, Jansen, Polanyi and Berman occupied the strategic footnotes in the defining moments of the narrative.