In Defense of the Hazardous Tool of Legal Blogging

On the occasion of my very first post on EJIL:Talk! – at the invitation of its editors – on the current duality of government in Côte d’Ivoire (see here), I have deemed it necessary to post a separate note on the “art” of legal blogging, for this topic has hardly been discussed on this experts’ blog in its first two years of existence (compare. with the debate held by the on-line platform of the Yale Law Journal). Moreover, the criticisms of which I have been the object for an earlier on-line opinion have also convinced me that some circles of our professional community have not yet completely assimilated the idea of blogging on issues of international law. While blogging on current (legal) developments undoubtedly remains a hazardous exercise which one should engage with the greatest care (if not with the greatest self-restraint), I would like to shed light on some of the virtues of blogging as well as the common misunderstandings at the heart of the objections still raised against legal blogging. I hope that these – inevitably cursory – considerations – which exclusively zero in on experts’ blogging – will help pursuing a healthy debate about the pro’s and con’s of bloggership.

1. Legal blogging and its detractors

In some strands of the international legal scholarship, many still resent blogging – and hence tend to despise those who engage in blogging – for two main reasons. First, legal blogging is scorned for the superficiality of the analyses and the half-baked ideas it disseminates. Second, it is berated for disinhibiting scholars and bolstering their disregard of the – unwritten – codes and hierarchies of the profession.

These two objections are surely not ill-founded. Indeed, posts on legal blogs often are quickly written notes on current legal developments without much critical distance and replete with unfinished thoughts. Likewise, posts on legal blogs allow direct confrontations between legal scholars at odds with the traditional non-confrontational debates conducted by the intermediary of international law journals. Yet, these criticisms rest on a misunderstanding of what legal blogging is all about and, more fundamentally, a negation of the cultural evolution witnessed in the international legal scholarship over the last two decades. First, as I will argue below, legal blogging is neither meant to be proper legal scholarship nor does it seek to replace it. Posts on blogs do not claim to be long matured thoughts benefiting from hindsight. They are simply and modestly meant to be informative. This is the first main virtue of legal blogging. As to the second objection, it seems to stem from a more fundamental ignorance as to how ideas are formed, exchanged and discussed in the contemporary international legal scholarship. Nowadays, the fora of our scholarly debates have ceased to rest exclusively with the non-polemical, non-confrontational, aseptic and cozy framework offered by international law journals. Instead, scholarly debates are multifold and ubiquitous. They are taking place everywhere, all the time and in various forms. Scholarly debates have even ceased to be accidental. Differences of opinions are no longer stifled or concealed but they are consciously unearthed. Debating – and the culture of the critique that comes along with it – are now an integral part of the activity of being an international legal scholar. Debate has become an essential component of the production of legal thoughts. Ideas are no longer mulled over for years in an – often dusty and messy – isolated study and kept secret until the day of their solemn revelation through publication in a top-tiered international law journal.  While still being the product of a long individual cerebral effort, ideas are now shared, tested and further refined through peer-to-peer experimentation at an earlier stage of the scholarly thought-making process. This is not to say that international legal scholars are – and should be – pursuing debate for the sake of the debate and systematically rushing to the professional agora as soon as they come with what they perceive as an original or refreshing idea. Ideas need not to be hastily disseminated among peers before they are ripe. And broadcasting them through conventional law journals or books remain the best means to secure formal ownership thereon. Yet, legal scholars of the 21^st century have grown more faithful in the Socratic virtues of the exchange of ideas which they now see as instrumental in the mutual development and sharpening of legal thinking as a whole. Eventually, thanks to the new means of transfer of knowledge, scholarly debates have simultaneously undergone a process of deformalization. Lack of seniority no longer bars access to the experts’ debate and the implicit hierarchies of the profession have ceased to constitute compelling barriers to the expression of disagreement. Legal blogging has been both the cause and the consequence of these fundamental changes in the debating culture – and the thought-making process – of the international legal scholarship of the 21^st century. Bemoaning the existence of experts’ legal blogging among international lawyers boils down to an atavist negation of the cultural upheaval that has unfolded in the international legal scholarship over the last 15 years.

2. Legal blogging and its hazards

Not all the arguments of the detractors of legal blogging are erroneous. Legal blogging does not come without – serious – hazards: hasty treatment of the information, ephemeral and cursory writing, dissemination of half-baked ideas, superficiality of analyses, overly emotional reactions and all kind of impulsive expressions of thoughts which the author of a post may subsequently regret. Once written and thrown to the web, such ideas, emotions or statements ceased to be within its author’s control. Because of the magnifying effect of the web, any misstep can then take very harmful proportions for its author. It is true that this is not different from ideas advertised through books or peer-reviewed articles. Yet, the pace of blogging is faster, the barriers almost inexistent and the audience much wider. The risk of hastiness and impulsivity – and hence of self-inflicted harm – is far greater when scholars are simply one mouse-click away from the global agora of the profession. Whilst the deliberative virtues of blogging lie precisely in such accessibility, legal blogging, if not sufficiently constricted to a community of experts or careful organized in clusters, can also contribute to the broadcast of non-experts opinions and convey self-reinforcing glaringly uninformed views. Eventually, legal blogging can also be seen as intensifying what I have called the proliferation of international legal thinking (see here) that has already long already affected conventional channels of legal scholarship. These dangers are well-known and have been discussed elsewhere (see this piece by Brian Leiter on the Yale Law Journal Pocket Part). It is not necessary to dwell upon them here.

3. Legal blogging and its virtues

Mindful of the abovementioned hazards of legal blogging, I have – I must confess: over time and gradually – come to the opinion that the cost of legal blogging is outweighed by two fundamental virtues, namely (a) the efficacious and rapid dissemination of information about current legal developments; and (b) the platform for debate within the profession which legal blogging offers.

a) Informative virtues

I construe legal blogging, first and foremost, as nothing more than journalism within the epistemic community concerned. It is meant to inform your peers of discoveries and new developments which they may have overlooked. As far as international law is concerned, it is undeniable that the world has turned so complex and – although in multiple ways – regulated that it has become an uphill battle for each of us to keep track of the factual and legal changes occurring on the international plane. In that sense, legal blogging is a medium which helps disseminate more massive and complex information. Moreover, it does so at an accelerated pace, for one no longer has to wait for the selective accounts of practice and case-law found in expensive and long overdue yearbooks. Dissemination of information is not only easier and faster. It is also made non-contingent on intermediaries, like editors of international law journals. If so construed, legal blogging is nothing more than journalism for experts by experts without intermediaries. It thus inevitably falls short of the critical distance that makes legal scholarship so unique and irreplaceable. It should accordingly not be considered as anything like legal scholarship. By the same token, even as regards its informative aspect, legal blogging should not be considered as politically neutral. It is uncontested that there cannot be an account of an event – be it factual or legal – devoid of biases and subjectivity. Yet, it has never been claimed that the information shared by virtue of legal blogging was objectively brought to our attention. Unearthing the “politics” of legal blogging should certainly not be neglected by the profession, especially as we turn more to blogs to glean information.

b) Deliberative virtues

Besides constituting an invaluable informative tool for the professional as a whole, blogging bolsters freedom of expression within the epistemic community concerned. Indeed, legal blogging allows scholarly debates to be no longer exclusively carried via distant and slow-reacting proxies (like international law journals). It simultaneously opens the scholarly debates to a greater number of experts, for it allows the entire profession to informally participate and exchange ideas in contrast with classical fora of debate which restrict – and carefully select ­– the happy few entitled to express their thoughts. Likewise, it often leaves room for a more informal tone and some humor – a welcome development in a rather stiff profession still beset by ancestry codes. This does not mean however that legal blogging should unravel the codes and hierarchies of the profession. It only does so as far as scholarly debates are concerned. Once we log out from such electronic platforms, we still have to make our way through the profession by abiding by its fundamental rules. And this should not be otherwise. Yet, if we can accept that some of these rules and codes be – temporarily – kept at bay to allow a global conversation within the profession, legal blogging could constitute the sign of an international legal scholarship growing more amenable, not only to the value of critique, but also to that of mutual enrichment.

There is one particular aspect of our debates which legal blogging can best accommodate. It is not contested that professional self-reflection constitutes one of the most important acquis of the various waves of criticisms endured by the mainstream international legal scholarship in the second half of the 20^th century. The sociological enquiries which originate in that – welcome – change of mindset in the current legal scholarship have yielded a new kind of sociological thinking in international law, more centered on the study of the dynamics of the profession than the examination of international law itself. While international law should remain the main focus of our cerebral activities, we should not bemoan this greater interest of international legal scholars in the sociology of the profession. Yet, legal blogging being, in my view, the platform for the global conversation of the profession, I see the blogosphere as a far better place than peer-reviewed journals to express our sociological findings about the profession.

4. Safeguards for a useful bloggership in the contemporary international legal scholarship

Confronted with the abovementioned hazards of legal blogging, it would tempting to say that we should simply beware them and resort to legal blogging with extreme care. Using a – coarse –  metaphor popular among legal scholars – as is illustrated by the famous and oft-quoted car-analogies made by Herbert Hart or Ian Brownlie –, one could thus say that it is not because a car can travel as fast as the insane speed of 200 hundred miles an hour that we should not drive it (there actually are weightier environment-related motives to cut our use of cars). Well, this is as far as this unsophisticated metaphor can get. Indeed, the difference between cars and legal blogging is nonetheless that the latter can hardly be harmful to others, leaving aside distracting them from their work by deluging the web with half-baked thoughts. Most of the potential harms of blogging are borne by the author of the post alone. In that sense, it is all about personal responsibility. It is only if bloggership were to be seen as a makeshift legal scholarship that it could be detrimental to the quality of our debate. If more modestly construed as legal journalism and a platform for a conversation among experts as is argued here, blogging is not to be feared by the professional community as a whole.

Yet, even modestly construed as journalism for the profession as well as a platform for experts’ debate, a few elementary safeguards, in my view, still needs to be erected if we want to ensure that the benefits of legal blogging continue to outweigh the significant hazards described above. The reason why I have long resisted blogging has primarily been the obliviousness thereof.

• Let me repeat once again that legal blogging should not be construed as an ersatz of legal scholarship: As Ann Althouse rightly put it: “Let be law journal be law journal and the blog be the blog”. We should just not strive to make legal blogging resemble legal scholarship. Moreover, we should remain mindful that, to a very large extent, securing formal ownership of ideas still hinges on publication in traditional international law journals or books.
• Expertise must remain a passport to the legal blogging – and as said above, I am only concerned here with experts’ blogging like EJIL:Talk! The determination of the membership – and thus the way in which we define expertise – surely is an extremely contentious issue. It carries the risk of reproducing the old hierarchies – and managerialism – which the blogosphere has helped overcome. It is undoubtedly a matter that should be actively and openly debated. It is nonetheless my conviction that experts’ blogging must still have some elementary scholarly pretentions in terms of membership. EJIL:Talk! seems to have struck a good balance in this respect over the last two years and its editors should be praised for that.
• Under any circumstances, legal blogging should be used with self-restraint by the members of that community. Self-restraint is the best guarantee against overwhelming our poor – and underdeveloped if compared to nanoprocessors – human minds. Too much blogging simply kills legal blogging – as well as the reputation of those who abuse it. Not every idea, opinion or current development is worthy of a post.
• Because it is not proper legal scholarship, legal blogging should not be rewarded or count for career-advancement – although it may inevitably bear indirect positive effects in this regard. Nor should it be cited in scholarly work. It should just remain what it is, i.e. a global and informal conversation among professionals sharing their discoveries and their opinions.
• Even if bloggership should never be conflated with legal scholarship, there still is one overarching guiding principle which bloggership and scholarship should have in common: mutual respect.  Indeed, there can be no Socratic mutual enrichment through debate – in my view one of the main tenets of the culture of our profession nowadays – without mutual deference. It is only as long as we mutually respect each other’s thoughts – however different these may be – that we can continue to reap the informative and deliberative benefits offered by legal blogging. Hence, it is not legal blogging that should be feared but rather the institutional constraints, the ever-growing competition within the profession and the ever-mounting pressure on its members, for they tend to make us oblivious of this elementary premise of any scholarly debate.