Form and Substance in the Debate over ‘International Law of Democracy’ Scholarship

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I appreciate Akbar Rasulov’s foray into the complexities of the relationship between form and substance in international legal scholarship. I maintain, however, that his criticisms of the work of the “anti-ILD scholars” (such as myself) contain some unjustified leaps.

Rasulov regards those of us who (for overlapping, though seldom identical, reasons) resisted the claims of democratic entitlement enthusiasts as having objectively served “a fundamentally reactionary political agenda.” He insists on this point, despite conceding our manifest intention to guard against a set of doctrinal innovations that might provide legal rationalizations for neo-colonialist exertions.

Rasulov poses the following rhetorical question: “Does virtue lie in the design of our intentions or the effects of our actions?” Fair enough. But Rasulov bears the burden of demonstrating the supposed adverse effects. Wherein lie these effects?

Rasulov’s complaint proceeds from two grounding assertions:

First, however much of the democratic entitlement scholarship may remain alive and well, he discerns a demise of what he understands to have been distinctive about ILD discourse, which he identifies with a “very specific disciplinary conjuncture.” Rasulov speaks of “two rather specific sets of claims” that “rose and sank into oblivion between the early 1990s and the mid-2000s”:

(i)        that a very distinct kind of rupture had taken place in the fundamental structure of the international legal system at the end of the Cold War, brought about by the fact that international law had somehow turned into a platform for the promotion of democratic values; and

(ii)       that because of this rupture, it was incumbent now on international lawyers to rethink everything they knew about international law as a system and as a discipline.

Second, he attributes this demise of the distinctive ILD discourse to the withering criticisms of its opponents:

“By attacking pro-ILD arguments from the perspective of technical legal proficiency and ‘good professionalism’, anti-ILD scholars succeeded in weakening ILD’s basic disciplinary credibility ….”

Thus, the death (such as it was) did not occur by natural causes; it resulted from the wounds incurred in battle.

This strikes me as an idiosyncratic characterization of the intellectual history. Rasulov attributes to ILD scholarship a more transformative project than, in the main, it ever asserted for itself. The ILD claim about the enhanced right to political participation did have seemingly inevitable implications for the operation of other norms — in particular, a license to ignore assertions of the non-intervention norm by regimes deemed to have defaulted on the obligation to hold, and to abide the outcome of, “free and fair elections.” This is what provoked at least part of the negative response (especially my own). But the most prominent ILD scholarship refrained from expressly asserting (and, in some prominent instances, renounced) such destabilizing effects.

On still fewer occasions did the ILD literature call “on international lawyers to rethink everything they knew about international law as a system and as a discipline.” It is paradoxical that Rasulov at once emphasizes these few occasions, and still quizzically poses, “What was so different about ILD that it earned the kind of harsh treatment that it received …?”

Yet in Rasulov’s own words, “[a] measure of giddiness and agitation had spread across the discipline’s collective discursive spaces.” It is no mystery what dispelled the giddiness about the prospect of licensing unilateral exertions in the service of supposed universal values; it was not a handful of curmudgeonly naysayers writing in academic journals. Rasulov reveals the causal mechanism more pithily than I ever could:

“From Madeleine Albright’s ‘we think the price is worth it’ comment to the legally suspect campaigns in Kosovo and Iraq, the war on terror, Guantanamo, and the ‘torture memos’ – a whole cascade of events, one more chilling than the other, quickly depleted whatever moral capital the US and the UK may have had in the eyes of the rest of the world.”

Indeed, the period from 11/9 (1989) to 9/11 (2001) was an exceptional historical moment, quite unlike both its immediate past (the Cold War era) and its immediate future (marked, or marred, by the Global War on Terrorism). The waning of utopianism in its aftermath barely requires explanation.

Instructively, Rasulov nowhere attempts a substantive defense of the specific ILD claims that opponents criticized as overstated. Nor does he seek to refute the critics’ concerns about the questionable purposes that ILD assertions might be invoked to serve. He even concedes that “there was nothing especially progressive or forward-looking” in the literature that was, in his view, subjected to unduly harsh treatment.

So, what, exactly, is the gravamen of Rasulov’s complaint against those of us whose writings called ILD assertions into question? It is that the anti-utopian nature of our critique reinforced “a Victorian knowledge economy.” The harm that he identifies is the “entrenchment within the discipline’s internal socio-cultural space of a decidedly reactionary knowledge-culture.”

In an effort to refocus attention on the larger geopolitical stakes of the controversy, my published response, perhaps too glibly, cast aspersion on Rasulov’s “fixation on form at the expense of substance.” His rejoinder asserts:

[it] takes a rather remarkable degree of privilege to assume that the politics of one’s workplace – and since all scholars are intellectual labourers, the terms and conditions of our disciplinary engagements are a part of our day-to-day workplace – should be considered just a matter of ‘form’ that one must not ‘fixate’ on, or that how we organise our relations with those with whom we share this workplace is not nearly as important as whatever ‘substantive values’ we hold otherwise.

I would not have thought that a determined effort to focus on a legal doctrine’s real-world consequences for subjugated political communities would be seen as a reflection of my “privilege.” But I also fail to see the basis for the intra-disciplinary complaint.

As Rasulov would not dispute, this was hardly a case of “kicking down.” Not only were the pro-ILD scholars equally well established (in some cases, better established) within the discipline, but they were for the most part trading on the same methodological premises as their critics. W. Michael Reisman was a tell-tale exception in the latter sense: his work, though brilliantly innovative, could scarcely be characterized as counter-hegemonic. The ILD was, in almost all respects, a project of the “high mainstream” (with all of the good and the bad that this characterization might entail).

Rasulov nonetheless faults the manner in which the criticism was conducted – not for any lack of cordiality, he now clarifies, but for the critiques’ tendency to double down on conventional methodological standards. He faults “the anti-ILD camp’s concerted denunciation of conceptual fuzziness, its reliance on formalist reasoning, [and] its recourse to technical legal proficiency arguments” – not, he says, “as such,” but somehow in the process of “put[ting] in place … a cultural regime of widespread theoretical bad faith (in the sense of Sartrean mauvaise foi) and intellectual self-estrangement (in the sense of Feuerbachian alienation).” He thus attributes to “the anti-ILD project” an “unmistakably regressive character in terms of its impact on the intra-disciplinary political arena.”

The issue for Rasulov is not whether the substance of anti-ILD critiques was, as their authors believed, directed against a potentially deleterious normative development. Rather, he challenges me to say:

“how exactly … publishing academic texts in defence of a Victorian knowledge economy is supposed to help stop neo-colonialism and protect weak states against hegemonic superpowers.”

I would not personally plead guilty to publishing defenses of a “Victorian knowledge economy.”  My most relevant work, Governmental Illegitimacy in International Law, was an interdisciplinary project that sought to infuse into the reading of standard legal source materials a set of contextualizing insights derived from political theory and comparative politics scholarship. Moreover, I would characterize my overall approach as interpretivist rather than positivist. Far from speaking for themselves, the fragments that comprise law’s source material (all the more so in a decentralized international legal order) need to be actively configured into a coherent account, an explanation superimposed upon – not self-evidently flowing forth from – social facts. The application of old source material to new facts necessarily entails a creative element. Law, then, is not so much something that one finds as something that one does, whether well or badly.

Nonetheless, what one does, within a discipline that purports to identify norms that are institutionally recognized as binding, is substantially constrained by what one finds. I am thus prepared to hold out for the relevance, even if not the definitiveness, of the international order’s established source doctrines.

I have all the more reason to do so where these doctrines operate to maintain the hard-won gains of past political struggles to correct power imbalances within the system. The contemporary international law of peace and security was largely forged in the period from Bandung to the end of the Cold War, in which states and intergovernmental organizations of the global South developed sufficient leverage to establish, inter alia, the territorial inviolability of states emerging from colonial and neo-colonial domination. The achievements embodied in the UN General Assembly’s 1970 Friendly Relations Declaration (GA Res. 2625 (XXV)) and in the ICJ’s 1986 Nicaragua merits judgment may have fallen far short of what visionaries and ethicists would prefer, but they reflect norms that maintain actual recognized authority among the international system’s efficacious actors.

These constraining norms do not, of course, possess talismanic qualities. They do, however, provide a political basis – over and above any shared sense of natural justice – for the mobilization of resistance to transboundary impositions. Their political significance is evidenced in part by the determined efforts of great-power-friendly publicists to eradicate or eviscerate them.

I thus make no apologies for drawing on traditional methodologies to bolster this resistance. And yet, neither I nor (so far as I know) anyone else in the “anti-ILD” camp have ever denied that the norms that we seek to maintain have undergone some degree of modification in recent decades, partially as a result of influences associated with liberal democracy. Neither the substantive nor the methodological differences between the camps have ever been as pronounced as Rasulov portrays.

Were I to have anticipated a criticism of the form, as opposed to the substance, of anti-ILD scholarship, it would have been that this has been essentially a discussion among “insiders” who share far too many methodological and normative premises. That, rather than Rasulov’s approach, would be the radical critique that might succeed in putting me on the defensive.

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