‘From the Wells of Disappointment’: Rejoinder to Brad Roth

I am grateful to Brad Roth for his extensive and sincere engagement with my argument. We both share a curiosity about ‘left-of-centre agendas’ and a deep sense of unease about the politics of post-Cold War international law. We both also have a strong interest in understanding the role played in it by neocolonialism, the International Law of Democracy (ILD), and what he calls ‘methodological orthodoxy’, and I appreciate the opportunity this exchange gives us to think through these complex issues.

The story of ILD, one might say, is a classical rise-and-fall story. But it has two important twists. The first twist is that it is not really a story about ILD so much as it is a story about progressive and reactionary knowledge-cultures and the intra-disciplinary politics they create. The second twist is that it is not a story in which one can always tell ‘who the good guys are’. There are no real heroes in the ILD story. Things are both a lot more complex and a lot more indeterminate than that. And the reason for that lies in the essential fluidity of what one might call international law’s sense of politics.

The rise-and-fall part of the story is the easiest to summarize. The concept of ILD first entered international law’s disciplinary consciousness after the end of the Cold War, in the early 1990s. Over the next few years it enjoyed a rapid increase in popularity, but then international lawyers began to grow sceptical about it. By the late 1990s, whatever support the discipline had given it initially was almost totally withdrawn. By the mid-2000s, there seemed to be no doubt that the sun had set over ILD and its train had long since run out of steam.

But did it really? In his response to my article, Roth argues that as a matter of fact ILD’s fortunes have not waned at all. Many international organizations, he writes, ‘have embraced the idea of a liberal-democratic governance norm’, and ‘numerous respected scholars’ are still publishing works suggesting that the respect for democratic governance ‘is well grounded in state practice and opinio juris’. This means, he concludes, that the concept of ILD did not sink into oblivion ‘some two decades ago’, and the ILD project, in fact, is still going strong.

This may seem, at first glance, a plausible argument. The problem with it, however, is that it relies on a rather significant amount of analytical slippage and concept-lumping. For starters, the concept of ILD that I discuss in my article is not simply reducible to the idea of international institutions ‘embrac[ing] a liberal-democratic governance norm’ or the notion that international lawyers can write about democracy. Demonstrating the general persistence of an international legal scholarship about democratic governance is one thing. Proving that the very specific disciplinary conjuncture that gave rise to the post-Cold-War ILD debate is still continuing, and that these scholarly discussions are still structured by it, is another.

Concepts, of course, do not any predetermined meaning, and Roth is free to propose whatever definition of ILD he likes and to claim his definition and mine are equivalent, even if I think they are not. The reason the story of ILD did not, in my view, last beyond the early 2000s is the same reason why it did not also start in 1917 with Elihu Root’s speech to ASIL. The legal-historical phenomenon that the concept of ILD represents was the product of a very particular narrative that consisted of two rather specific sets of claims:

(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.

The concept of ILD that rose and sank into oblivion between the early 1990s and the mid-2000s was a concept produced by and grounded in this narrative. The pro- and anti-ILD projects that I describe in my article were the movements that emerged in the process of articulating and contesting this vision. To suggest that Erika de Wet’s article from 2015 or Jean d’Aspremont’s from 2011 form a continuation of the exact same disciplinary conjuncture or context of contestations, seems simply unconvincing.

As an event in the history of international law’s disciplinary consciousness, one of the most significant features of the post-Cold-War ILD debate, to my mind, was the fact that, however briefly, it had managed to bring together groups of scholars who, in terms of their ‘external’ political profiles, did not otherwise seem to have much in common. The pro-ILD camp brought leftwing liberals like Thomas Franck alongside centrists like Anne-Marie Slaughter and rightwingers like Michael Reisman. The anti-ILD camp brought critical scholars like Susan Marks and Martti Koskenniemi alongside ‘methodological conservatives’ like Roth and Thomas Carothers. One of the issues I try to explore in my article is the fundamental disjunction these unusual alliances help reveal between what one might call the discipline’s global concept of politics – politics with the capital ‘P’: the politics of democracy and capitalism, cosmopolitan liberalism and neocolonial humanitarianism – and the much more ‘local’, mundane concept of politics derived from the material realities of the intra-disciplinary division of labour and knowledge processes.

The two planes or ‘fields of production’ which these different concepts of politics represent, as Pierre Bourdieu reminds us in Homo Academicus, are ultimately governed by very different logics. Each of them, as a result, over time tends to develop its own, entirely independent system of scales and coordinates, its own map of right and left, and its own ways of experiencing tradition and enacting progress. In the ordinary course of life, most of us do not usually have to confront this fact. It takes a genuinely extraordinary experience to start becoming conscious that the kind of politics we may support in one plane does not in itself predict or determine the kind of politics we will create in another. Being a fiscal conservative does not preclude one from being a social liberal or a cultural modernist. Preaching the message of charity and tolerance does not preclude one from being a workplace bully or a misogynist.

A large part of what seemed to motivate anti-ILD scholars in their pushback against pro-ILD scholarship was rooted in their concerns about the potential neocolonial implications of some of the arguments put forward by pro-ILD scholars. In deciding how to counter these arguments, they enacted eventually a discursive strategy that aimed to challenge and undermine the basic disciplinary credentials of pro-ILD scholarship: what the pro-ILD camp had proposed, the argument went, was not just bad politics but also bad legal analysis.

On the rhetorical level, this strategy relied on various elements of traditional legal-formalist reasoning; a strong commitment to classical positivism; sharp criticism of conceptual fuzziness; active promotion of the virtues of technical legal proficiency and theoretical prudence; and a good deal of suspiciously self-serving selectivity and fudging in the way each of these elements was defined and applied in practice. On the cultural-professional level, what accompanied this rhetorical setup was the ideology of disciplinary anti-utopianism.

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 helping to diminish its potential ‘external’ impactfulness (its politics-with-a-capital-P impactfulness). By grounding these attacks in the ideology of disciplinary anti-utopianism, they also, however, contributed to the entrenchment within the discipline’s internal socio-cultural space of a decidedly reactionary knowledge-culture.

There was no reason, of course, why anti-ILD scholars had to adopt this particular rhetorico-ideological solution. A whole range of other disciplinarily valid argument strategies and theoretical stances were available. One does not need to look far: Marks’s own foray into ideology critique in The Riddle of All Constitutions offered a great example. So, too, did Nathaniel Berman’s deconstruction of the international law of nationalism, Antony Anghie’s analysis of the dynamics of difference, and Mohammed Bedjaoui’s critique of oligarchic international law. The fact that the anti-ILD camp decided to embrace the voice of disciplinary anti-utopianism was neither inevitable nor self-evident. It was, in other words, fundamentally, a matter of choice. And the consequences this choice produced have continued well beyond the immediate context of the initial ILD discussions.

To be sure, some of the scholars who joined the anti-ILD project may have done so in a much more limited manner than others. (Again, Marks, with her remarkably rich work that extends far beyond the original ILD problematic, offers a great example.) No matter how partial or qualified their individual commitment to the anti-utopianist cause may have been, however, the cumulative effect which the anti-ILD discourse objectively produced within international law’s economy of knowledge practices was unmistakable. The basic model for how to organize the discipline’s system of knowledge production which it helped to legitimise and entrench was not just a reinstatement of the Victorian-style model of ‘international legal science’, with all its regressive assumptions about what constitutes the purpose of good legal scholarship and how the processes of knowledge consumption and circulation should be organized, say, between the world of legal scholarship and the world of state practice. The politics of disciplinary organization which it put in place also promoted 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). And if all this were not enough, the actual productivity of this knowledge model, even when judged by its own criteria of efficacy, also turned out to be alarmingly low.

Despite all the heckling they received from some quarters of the anti-ILD project, a large part of what pro-ILD scholars had predicted about international law’s democratic revolution eventually came true. As Roth himself acknowledges, much of what pro-ILD scholars like Franck had suggested would happen to the international legal system did, ultimately, happen. What was the point then, one might ask, of all those uncompromising attacks to which anti-ILD scholars subjected pro-ILD scholarship? What was the value of all that ‘methodological orthodoxy’ in the name of which these criticisms were unleashed, if it was the pro-ILD camp that ended up predicting the evolution of the positive legal reality more accurately? Besides, in the recent history of the discipline there have been more than a few disciplinary projects and constructs, from the law of self-determination to international environmental law, whose ‘realist’ credentials during their first decade seemed no more convincing than ILD’s, but which the rest of the discipline, at the time, nonetheless chose to ‘let off the hook’. What was so different about ILD that it earned the kind of harsh treatment that it received when all these other projects did not?

Tropes and vocabularies, of course, have no fixed political meaning. They are just a set of tools that different people can use in different context. It is how exactly we use these tools – which of them we bring together, in what particular order, in response to which challenges and in the service of which causes, with what degree of selectivity and spin and with what distributional consequences – that converts otherwise non-political rhetorical interventions into potentially deeply politicised ideological events. What was political about the anti-ILD attack was not any one particular trope or theoretical tool it deployed. Nor was it the presence (or lack) of cordiality in its tone that Roth mentions. Discourse politics is not just a matter of who uses what vocabulary, and politics more generally is not just a matter of civility and personal manners.

It was not the anti-ILD camp’s concerted denunciation of conceptual fuzziness, its reliance on formalist reasoning, or its recourse to technical legal proficiency arguments as such that made the politics of its discourse disciplinarily reactionary. It was the deployment of these tropes and arguments alongside that kind of selectivity and in the service of a disciplinary knowledge economy so obviously grounded in that kind of Victorian-style regime of bad faith – and doing all this, moreover, while suggesting, in effect, that this was precisely what the discipline’s ‘progressive values’ most needed going into the 21^st century – that gave the anti-ILD project its unmistakably regressive character in terms of its impact on the intra-disciplinary political arena.

What was so special about pro-ILD scholarship that it ended up attracting the kind of robust telling-off that was dished out to it by the likes of Carothers or Jose Alvarez? Roth’s explanation seems to be that anti-ILD scholars had simply sought to ‘resist neo-colonialism’ and ‘to put a brake on’ whatever legal developments might have left ‘the boundaries of weak states more permeable’. As a direct participant in those events, Roth is certainly entitled to hold this view. But rather than just telling us that this is what anti-ILD scholars intended to achieve, it would be perhaps more helpful to learn how exactly he thinks publishing academic texts in defence of a Victorian knowledge economy is supposed to help stop neo-colonialism and protect weak states against hegemonic superpowers. It is not uncommon in some international law circles to assume that, when it comes to world-historical processes, the best legal ally of progressive politics is loyalty to doctrinaire positivism. But what is the actual argument that is supposed to make sense of this premise? And where is the evidence that supports it?

Does virtue lie in the design of our intentions or the effects of our actions? How justified is it that instead of acclaiming anti-ILD scholars for their ‘progressive substantive values’ and ‘vigilance against … neo-colonialism’, we should focus more on the local ideological climate which their attacks on ILD helped entrench within the discipline of international law? Roth suggests that doing so constitutes a ‘remarkable … fixation on form at the expense of substance’, which, one gets the impression, is meant to suggest it would be something frivolous. Again, in the larger scheme of things, this is not an implausible argument by any means. But it certainly 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.

Is a culture of soft-focused thinking better for international law than the culture of rigid formalist reasoning? Is a knowledge economy that values non-positivist imagination preferable to the one that only values doctrinal thought and technical legal proficiency? Neither of these questions can be answered with any degree of finality. It all depends. Some of us may prefer certain contexts to show greater receptivity towards non-technical knowledge practices. That does not mean that soft-focused, conceptually fuzzy thinking is always a good thing. Tough and prudent are not necessarily any better or worse than soft and radical. Looking back, it seems safe to say there was nothing especially progressive or forward-looking about the particular model of knowledge production that some ILD enthusiasts had advocated for international law. But that, of course, does not really matter so much in the end. The story of ILD, ultimately, is not the story of what the pro-ILD camp might or would have done for the discipline. It is the story of what the anti-ILD camp actually did.