Favourite Readings 2020 – On Crime, Life, Knowledge and Virtue

James Lee Burke, Purple Cane Road (Simon & Schuster/ Doubleday, 2000)

James Lee Burke, In the Electric Mist with Confederate Dead (Hyperion Books, 1993)

Christine Jennings, Robbie: The Life of Sir Robert Jennings (Troubador Publishing, 2019)

Kees Schuyt, R.P. Cleveringa: Recht, Onrecht en de Vlam der Gerechtigheid (Boom, 2019)

Philip Jessup, Transnational Law (Yale University Press, 1956)

Pertti Alasuutari and Ali Qadir, Epistemic Governance: Social Change in the Modern World (Palgrave Macmillan, 2019)

Susan Strange, States and Markets (2^nd ed, Bloomsbury, 1998)

Julia Annas, Intelligent Virtue (OUP, 2011)

As in previous years, EJIL’s Review section, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 200. 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.

If there is any justice in the world, the Nobel Prize for Literature should be awarded to James Lee Burke one of these years. His novels explore the dark underbelly of the US and the violence and racism on which the country is built, and are not shy in picking up inequalities. Often, the violence is dressed up in respectable garb, with authorities and businesses being just a little too cozy with nastiness. He draws characters of great complexity who come across like real people, struggling with good and evil and indifference and often crossing invisible lines, whether by design or by accident. He is not averse to vocabulary renewal, and some of his work, moreover, contains hints of magical realism, mixing the here and now with the there and then. And he writes ‘prose with a pronounced streak of poetry’, as someone once delightfully put it. Re-reading Purple Cane Road and In the Electric Mist with Confederate Dead offered a glimmer of hope in an era where the collective sanity of the US population can seem trying.

But, of course, there is no justice in the world. Burke’s novels can usually be found in the ‘crime section’ of the book store; they tend to have a plot; a beginning, a middle and an end, and usually even in that order – more or less. Burke thus is unsuitable Nobel material. The Nobel judges have their own ideas about what is relevant in writing and what is not, and those who stray from their model do not stand a chance. Stay outside the canon, and you’re out. Burke judged on his own merits would have a chance; but Burke judged by the criteria that seem to apply within the Nobel Committee (itself, ironically perhaps, no stranger to the struggle between good and evil in recent years) do not even exist in the same universe.

It is sometimes thought that teaching a practice, like law, can be done by conveying information: ‘this is what the statute says, now go and apply’. This, of course, is deeply misguided. Much learning stems from following exemplars, and while that is hardly feasible these days, the biographies of leading lawyers may sometimes substitute. In this light, the biography of Sir Robert Jennings by his widow, Christine Jennings, is thoroughly enjoyable and educational. As far as biographies go, Robbie: The Life of Sir Robert Jennings could no doubt have been better: it is perhaps a little too long, and at times a little too sketchy. That said, it provides a warm picture of the man, and a unique peek at his professional habits as well as his likes and his dislikes, including a highly entertaining rant occasioned by a (then) young international lawyer who saw a lot of strategizing behind Jennings’ resignation without much proof, prompting Jennings to complain, not unreasonably it sometimes seems, that the greatest danger to international law are international lawyers.

Equally enjoyable, if sadly only available in Dutch, is the biography of R.P. Cleveringa, written by leading Dutch legal sociologist Kees Schuyt after his formal retirement. Cleveringa was a professor of law at Leiden who became famous when opening the academic year in 1940 with a speech suggesting university staff should resist Nazification and stand behind the Jewish colleagues whose work was made impossible. These included the doyen of Dutch private law, E.M. Meijers, and the young Ben Telders (he of the moot court competition). Cleveringa, not Jewish, could have gone with the flow; it took considerable courage to speak up but, much to his credit, he never saw it as courageous – for a man of character, this was simply the thing to do. Schuyt’s biography traces Cleveringa’s upbringing, paints a wonderful portrait of the Netherlands under German occupation as well as of student and academic life in student-town Leiden, and demonstrates what grace under pressure looks like.

Speaking of those after whom moot courts are named, re-reading Philip Jessup’s Transnational Law was eye-opening. It is often held, somewhat intuitively, that his pioneering book is mostly about how to come to terms with rules that are made either by actors other than states or in the form of instruments that do not neatly fit the traditional sources catalogue, but on closer scrutiny there is a second major concern lurking just underneath the surface. Jessup realized that calling something ‘law’ is by itself insufficient if not accompanied by ways of applying it. Hence, the concern for law-making is accompanied by a concern with the effect of rules in legal orders, knowing all too well that the traditional monism/dualism dichotomy is only of limited value when it comes to explaining the legal effects of, e.g., a contract between an electrician and the UN for repair work at UN headquarters. Calling such a contract ‘law’ is not all that meaningful unless there is also a legal order in which it can be applied.

A useful study struggling with the law-making aspects of Jessup’s equation (though without speaking explicitly about law) is a study by two sociologists based in Tampere, Pertti Alasuutari and Ali Qadir, under the title Epistemic Governance. Inspired by Foucault and incorporating traces of John Meyer’s world polity approach, they aim to flesh out an approach that views governance as based not on formal legal authority (not only, at any rate), but also based on knowledge, on expertise, providing something of a theoretical background to recent studies on the use of indicators, expert governance, rankings, and the like. While this kind of governance is less easily situated with classic inter-state relations, it goes without saying that much of it takes place within international organizations – the UN’s sustainable development goals constitute a prime example.

If the term epistemic governance is relatively novel, the idea has long-standing roots, and one earlier systematic treatment (of sorts) is contained in Susan Strange’s eye-opening States and Markets, first published in 1988, just before the end of the Cold War. Where much scholarship in the discipline of international relations focuses (and focused) on security issues, especially in the rather surreal ‘realist’ tradition, Strange relegates security to a less prominent place. Instead, she suggests that while a state’s position in the global hit parade owes something to its security capacity, it also depends on its capacities in production, credit and, indeed, knowledge, with important supporting roles for how well-endowed it is in fields such as transport, trade and energy. Strange writes exceedingly well but, more importantly, sends the message that power can have a lot of different sources. She wrote just before digitalization really kicked off, and with hindsight it is easy to see just how right she was. But perhaps the main message is, fittingly, an epistemic one: she obviously enjoyed what she was working on, and went at it without theoretical or methodological blinders. She does not set out to ‘prove’ a theory or demonstrate the superiority of a particular methodology (as so much work in IR does); instead, she sets out to describe how the big machine of world politics works, and in the process combines insights from all major IR traditions. No academic work can never be done without pre-conceived notions, and she is candid about from whom she borrows what, but part of the book’s quality resides in how it opens up the stale traditional field of IR, and does so with style and elegance. Not only does she rise about the traditional divisions of the field, she also manages to integrate a thorough understanding of economics in her work. Anyone trying to gain an understanding of international politics could do considerably worse than read States and Markets.

Last but not least, Julia Annas’ Intelligent Virtue proved, upon re-reading, to be even better than on first reading a few years back. Annas is one of the leading philosophers working on virtue ethics, and in Intelligent Virtue presents a workable conception of virtues as skills. In much the same way in which one learns a language or learns to play a musical instrument, we also learn generosity, courage, and other virtues, so that we end up applying them without giving it much thought. And for those who are skeptical about the virtues, she makes perfectly clear (as others do as well), that competing ethical traditions need to create some role for the virtues. This is so mostly because there is no point in insisting on the application of rules without also having the wisdom to know how to apply it, and when to apply it. Even Kant could not do without the virtues, and legal systems are unthinkable without the virtues as well – witness only the prominent position in any legal order of notions such as ‘good faith’. But that is a story for another day.