As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Jan Klabbers. You can read all the posts in this series here.
Looking back, I notice I have read a surprisingly large number of really good books this year, and from a variety of disciplines too. Still, it is a rather damning indictment of the current state of the academic industry that the most memorable works I have read this year have had no relationship whatsoever to formal notions of “research projects”, “funding schemes”, “grant applications”, “principal investigators”, or any other manifestation of the competitive bureaucratization of academic work in recent decades.
My book of the year probably has to be Fritz Kratochwil’s Praxis: on Acting and Knowing (CUP, 2018), a veritable magnum opus bringing together strands of work, lines of inquiry and fundamental insights accumulated over several decades. Kratochwil retired about a decade ago from the European University Institute, having earlier held positions at Princeton and Munich, amongst others. He could have tended his garden (well, he does that too), but instead has published two important works since retiring. Praxiswill not have the same impact as his earlier Rules, Norms, and Decisions (CUP, 1989)– but that is because the academic landscape has changed. Nor is it as accessible as his The Role of Law in World Society, published a handful of years ago (CUP, 2014). But in terms of depth and breadth, Praxisis an unparalleled excursion into philosophy, the classics, political economy, law, and international politics (I probably miss a few academic disciplines here still), revolving around the central notion, derived from Hume, of praxis, suggesting that the study of human relations, including politics, is the study of what people actually do in real-life circumstances, not what they could or should be doing in ideal circumstances. One of the many points he makes (witness the subtitle) is that we often act before we know what we are doing or should be doing, although knowledge also feeds back into further action, and for an international legal audience, it should be noted that Kratochwil is one of the few (very, very few…) non-lawyers who can think like a lawyer and is therewith able actually to engage in inter-disciplinary scholarship in a meaningful way. He does not need to talk down to lawyers, and he does not need to limit himself to talking about the law from an outside perspective; instead, he is able to offer reasoned critiques of international criminal law, global constitutionalism, and a lot more besides, all based on the fundamental insight that the main task of law is not to constrain agents (although it does that too), but to construct the world around them and facilitate their actions. Imagine for a second what the world would look like without being able to contract, or to own property; imagine for a second how we could even begin to discuss an event such as what happened in Crimea in 2014 without the language of the law, and the point should become clear. That language may itself be problematic and open-ended, but without it, we could not even entertain a conversation what happened in Crimea in 2014. Perhaps as a result, central notions in the book (I.e. central elements of praxis) include ‘constituting‘, ‘judging‘, ‘sanctioning‘and ‘punishing‘, notions usually reserved for legal writings.
Another publication offering me a very memorable and pleasant reading experience this year is the work of Rosalyn Higgins, who retired some time ago and now, together with four younger colleagues, produced a monumental study of the United Nations, Oppenheim’s International Law United Nations (OUP, 2017). I have more to say about this elsewhere, but again the general point is that this owes nothing to any funding schemes and would in all likelihood, like Kratochwil’s Praxis, have been rejected as a project by any funding agency. Admittedly, the work does not offer a “paradigm shift” or “cutting edge” research, but instead makes solid, reliable, robust information and analysis, at times even highly entertaining, available. This is a truly monumental piece of work detailing what the UN is, how it works, and what it does, and will prove many times more valuable for both legal practice and the academy than any promise of a “paradigm shift”could possibly hope to be.
I spent a few months this year looking for a copy of Felice Morgenstern’s Legal Problems of International Organizations (Grotius, 1986), her Lauterpacht lectures from the mid-1980s and undeliverable for even the otherwise quite well-connected and resourceful people (or algorithms?) at the company of the world’s richest man. Eventually, I found a copy, somewhere in a “library warehouse” (sign of the times…), and am ever so pleased. I read the book in the early 1990s (if memory serves, probably 1994 or 1995 or so) and then regarded it as a sophisticated analysis of a selection of legal issues of international organizations. Re-reading it now, some 25 years later, it strikes me as so much more than that: the analysis is still sophisticated, by any standard, but what is striking is how far ahead of her time Morgenstern was. Her selected problems mostly concern the increasing autonomy of international organizations (autonomy from their member states), including such topics as the legal structuring of relations between international organizations which, in many constituent documents, is hardly regulated. It is only now that the discipline is starting to catch up with Morgenstern; and what is even more remarkable is that she was for most of her working lifeemployedas a practitioner, outside the academy, working as a lawyer at the International Labour Organization until her retirement.
Also a pleasant surprise, but for different reasons, was Barbara Herman’s The Practice of Moral Judgment (Harvard University Press, 1993), recommended by a political philosopher as a work aiming to bring Kant closer to Aristotle than is usually the case – and indeed, the book provides a highly Aristotelian reading of Kantian ethics, almost (though she denies doing so, and probably has to deny it) turning Kant into a virtue ethicist. It helped me make sense of Kant in a way that few Kantian (or self-proclaimed Kantian) studies ever do, and for that alone one can happily work through the sometimes dense philosophical language.
Having developed an interest in epistemic authority and its many forms and exercises, I read Sally Engle Merry’s The Seduction of Quantification (University of Chicago Press, 2016), a work which is highly critical of capturing any reality in the form of numbers, rankings, statistics, indicators and the like, and she suggest this is not only so because these are inherently unreliable, flattening as they do any concrete experience. Instead, Merry shows how indicators of use in the human rights field are produced in highly political (and politicized) processes, meaning that what they end up measuring is not some objective reality, however flat perhaps, but a highly subjective reality, a reality that only exists in accordance with the wishes of those who end up having most influence on the production of indicators, benchmarks, and the like. And this, in turn, entails that one should be highly skeptical about their use as a tool to manage society, including the management of academic work – never exhibit more than a measured enthusiasm, so to speak.
I also read a fairly short work by the sociologist Richard Sennett, The Corrosion of Character (Norton, 1998), which zooms in on how the flexible economy which emerged in the 1980s affects how we stand in the world. Sennett has an uncanny ability to capture social developments in elegant prose, and manages to derive stories from people’s everyday experiences, provide them with broader meaning, and connect them to complex theorizing with the reader hardly noticing what he is doing. The Corrosion of Character discusses how the adaptability required in the 1990s economy affects our skills, but also the ways in which we experience time, as well as our notions of responsibility. What makes his work even more admirable is its balanced nature: Sennett deplores those developments, but without being nostalgic for the past – things were not necessarily better before. And not to make too fine a point, he would most likely agree that things have not become much better either since publication of The Corrosion of Character; if anything, our current gig economy only confirms and magnifies his findings.
This year saw the publication of another Julian Barnes novel, and as per his usual standard, The Only Story (Jonathan Cape, 2018) did not disappoint, combing grace and elegance of writing with a certain nostalgia and melancholia in this story (the only story…) of a love affair between a young man and an older woman. It also made me reach back to one of his earlier novels, the incomparable England, England (Jonathan Cape 1998) published in 1998 but as topical as ever. It makes us understand both the monumental stupidity and the sheer inevitability of Brexit, by relegating England to an amusement park, there to make a profit off Johnnie Foreigner while wallowing in the misplaced nostalgia of a people “widely perceived… as cold, snobbish, emotionally retarded and xenophobic” (at 108).
Happy holidays everyone.