Fresh Brains, and a Very Old One

Theodor Schilling, Dr. jur. utr. (University of Würzburg), LL.M. (Edin.), is extra-ordinary professor of public law at Humboldt University Berlin.

Maria Aristodemou, in an article entitled “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” (EJIL 25 [2014] 35), hailed by JHH Weiler as the cutting edge of international law, tries to marry, on the Lacanian couch, international law to Lacan’s version of psychoanalysis. I must admit that I have no very good idea of psychoanalysis. My difficulty following an article which blithely assumes (among many other, for me, arcane points) that “[e]veryone knows that at the intersection between the imaginary, symbolic, and real registers we can find Lacan’s famous ‘little object a’” (p. 39) are therefore mostly a problem of my ignorance and cannot be attributed to the article or its author. Still, questions arise also for the uninitiated, and I should like to venture to answer some of them.

The article does not appear to problematise the anthropomorphism it chooses in treating “public international law as the neurotic patient hankering after ‘fresh brains’” (p. 37). This anthropomorphism is particularly strange as psychoanalysis appears to require a psyche to analyse. A psyche however is attributed generally to living beings only and not to abstractions (international law) and collectivities (the eponymous academic discipline) (it never becomes entirely clear which of the two is considered the patient). If there is a psychoanalytical answer to this apparent problem, it is not in the article. Rather, the anthropomorphism pervades the whole article as international law is said to have desires (eg p. 45) and to crave fresh brains to achieve its own completeness. In what sense can international law, or the eponymous discipline, be said to have desires? The claim that “the proscriptions of international law, like of all law, are precisely based on desire” (p. 49), because they are aimed at suppressing human desires, is entirely convincing. However, it does not follow that the law, or the discipline, themselves have desires.

On the other hand, the article contains an acknowledged paradox: why should international law look at psychoanalysis when the article’s whole argument is to stop looking for Others who will complete us? Can this paradox really be explained away, as the author seeks to do, by claiming that Lacanian psychoanalysis does not complete “us”, but shatter “us”? (p. 39) Or is the resort to psychoanalysis not just another case of a new “law and …”, driven by an academic craving (a very understandable craving of individual academics) for under-explored fields of research? To me, this is a more plausible explanation than the Lacanian one proposed by Aristodemou.

Another pervasive theme of the article is the death of God. This recurrent topos, while not exactly a cutting edge issue, is clearly Eurocentric and at least a bit suspect on that count. On the basis of circumstantial evidence readily available, it appears that in many (most) parts of the world God is very much alive and kicking, maybe especially kicking (cf eg, on the role of Islamic International Law in the history of international law, Nahed Samer). That said, Aristodemou quotes Kelsen as one voice showing that absent a transcendental legislator – God – some other ‘final’ limit for the system of international law has to be hypothesised or postulated (p. 47). That much, I think, is not in dispute. Less clear is her conclusion that this postulate is necessary to “efface the fact … that there is no such thing as ‘an international society’”. This conclusion appears to presuppose that if there were an “international society”, no final limit would be necessary. In other words, it appears to conceive of the “international society” as a transcendental legislator, which is hardly plausible. If it is not so conceived, in my view, the conclusion is a non sequitur; whether there is such a society or not, a final limit must be hypothesised.

Somewhere around this part the article appears to me to lose its focus. International law appears surreptitiously to slip off the Lacanian couch to be replaced variously by you and me and the State. Concerning you and me, Aristodemou appears to support the claim made by Jacques Alain Miller whom she quotes at some length that “the Other’s [the neighbour’s?] proximity exacerbates racism” (p. 55). Indeed, she takes up that claim as one example – citing the French ban on wearing the Burkha in public – of a recent explosion of the extimate (not a concept I have come across before I read this article), the undesirable, odious core of all of us and of international law and the discipline.. There are two problems I have with this claim in the context of the article. First, I fail to see any connection to international law apart from the fact, not thematised in the article, that the ban might infringe the freedom of religion of the women concerned. Second, assuming that Lacanian speculations are open to empirical refutations, the claim appears to be terminally undermined by a recent empirical finding, if confirmed, that “levels of racial prejudice among white people drop significantly when they live in ethnically mixed communities, even when they do not have direct contact with minorities. Simply seeing white strangers interacting positively with ethnic minorities is enough to reduce racial prejudice.”

In an intriguing reduplication of a Lacanian motive (or so it appears to me), the extimate of international law is not spelled out till the very end of the article. “In international … law …, the abuse of power forms the obscene and hidden underside of all exercise of power” (p. 58). This abuse is exemplified in the article by the events at Abu Ghraib. This, for me, raises three questions. First, is the abuse of power not the abuse of the power of those that have it, i.e., the States (mostly) rather than that of international law? Second, if the abuse of power can be attributed to international law somehow, is the extimate that of international law or of the discipline, or are both the same? Last but not least, do we need Lacan to explain power abuses? It appears to me that a widely undisputed fact, hopefully known to every law student, offers a sufficient and convincing explanation for the inability of law to overcome such abuses: the distinction between “is” and “shall”. Law on its own cannot change reality; its commands need to be executed in the real world (which often depends upon a political decision). Of course, law “knows” that, and tries to react. It does not simply forbid torture, and enjoin States to fight it, as in the Convention Against Torture (CAT). It also tries to prevent it, as in the European Convention for the Prevention of Torture and Inhumane or Degrading Treatment and Punishment and in the latter’s universal adaptation in the Optional Protocol to the CAT. The problem here, it appears to me, is less the extimate but rather a pedestrian question of supervision and enforceability. Of course, the results will never be perfect, abuses will never be fully prevented. You may call this, if you wish, the death drive or, again, the extimate (p. 57). But does “fully assuming this gap at the centre of our subjectivity as well as of our neighbour [and of international law?], in all its ugliness” (p. 58), promise to be more successful? Even if fulfilling this “highest and hardest ethical demand international law, and all of us, face” may “be sufficient to satiate the patient”, whatever that may mean (no more “law and …”?), it will scarcely help to prevent all future abuse of power. Indeed, in the context of international law, two and a half thousand years ago, Thukydides, in the Melian Dialogue, did assume that gap, even, I think, fully, and, as we all know, not very much has changed since. As shown by the recent events on the Crimean peninsula, “the strong [still] do what they have the power to do and the weak accept what they have to accept”.