This post is a reaction to an ESIL Reflection written by Ramses Wessel and Monika Ambrus and entitled “Between Pragmatism and Predictability: Temporariness in International Law”. Their piece originates in an impressive symposium on the topic that has been published in the Netherlands Yearbook of International Law (see here)
1. Thinking of international law in managerialist terms
The 19th century idealist-intellectual international lawyer was murdered by his doctrinal-formalist counterpart who rose to prominence at the beginning of the 20th century. It did not come as a surprise that the doctrinal-formalist would also soon succumb, not only to his own weight and self-confidence, but also to the blows of the next hegemon, i.e. the managerialist international lawyer who thinks that international lawyers managing the world can no longer afford overly formal and sophisticated structures of argumentation. Interestingly, the murder of the doctrinal-formalist international lawyer by the managerialist international lawyer was condoned by his peers who had grown averse to the false necessities of doctrinal constructions and formal modes of legal reasoning. This is why the managerialist international lawyer was quickly welcomed and celebrated as the messianic saviour of a profession that had ceased to hope in its ability to make demands on the world.
The murder of the doctrinal-formalist international lawyer by the managerialist international lawyer is however not the end of the story of 20th century international legal thought. Indeed, the night after the opulent celebration of his conquest, the managerialist international lawyer had a dream. He dreamed that he would not only manage the world through international law but also the time of that world. In his dream, managing time also meant managing change. And managing change required self-reactive legal institutions and modes of reasoning to allow his managerial project to be carried out whatever happens outside his palace.As things turned out, when waking up on the ensuing day, the newly sovereign managerialist felt emboldened by his recent dream. Now that the temples are again awash with enthusiastic worshippers, he thought, nothing could resist his managerial fist, not even change and time.
The refined and thoughtful project of Ramses Wessel and Monika Ambrus on the temporariness in international law (see here) and the self-reactive tools they put forward epitomise the dream of the managerialist international lawyer who wants to control everything, even time and change. It is true that labels and boxes are necessarily oversimplifying evils. Yet, they help construct pedagogical narratives and situate legal arguments. In this case, it is fair to say that the refined scholarship of Ramses Wessel and Monika Ambrus does not obviously fall squarely in the managerial project as it is described above. Their work has always demonstrated a great command of (and respect for) the doctrinal and formal doctrines of international law. Yet, their approach owes to the above-mentioned managerialist international lawyer’s dream of controlling time and change. Such ambivalence of identity is of course not uncommon. The managerialist international lawyer himself has always bespoken a very equivocal relationship with formal structures of legal argumentation. While legal forms do not allow him to claim a grip on the power he sees out there, he always inevitably returns to formal construction to impose his own vision of the world and the way he thinks governance should be exercised.
The same ambivalence is found in Ramses and Monika’s work on the temporariness in international law. On the one hand, they believe in the managerial project of international law – and the fact that stability and predictability can be imposed through the design of self-reactive tools. On the other hand, they do not repudiate, as managerialists are inclined to do, the formal structures of international legal argumentation. In this context, Ramses and Monika’s work on temporariness in international law looks at a cross-road between the project of the doctrinal-formalist international lawyer and that of the managerialist international lawyer. These authors combine the faith of the doctrinal-formalist international lawyer in the formal modes of legal reasoning and the faith of the managerialist international lawyer in self-reactive structures. They juggle with stability (which is said to bring predictability) and pragmatism (which is said to requires self-reactivity). Whether the two projects can be reconciled is precisely what their scholarly enterprise is meant to teach us.
2. The time of the world of international law
Self-reactive constructions meant to accommodate time and change are not new in international legal thought and practice. International lawyers already have at their disposal a formidable and powerful self-reactive tool: customary international law. Indeed, thanks to its generation of normativity through the behaviour of States, custom always guarantees a minimal content to international law. For state behaviour and beliefs always coalesce into rules, custom ensures that there will always be rules in international law, even if such rules are extremely permissive. In that sense, custom allows international lawyers to alleviate their fears that international law could one day be demoted to a purely theological exercise disconnected from a world that has changed too radically. By virtue of customary international law, international law is made eternal. Surely, another self-reactive mechanism is found in the doctrine of statehood, which again, draws on a certain idea of accommodating practice (see here). It seems that, in the eyes of Ramses and Monika, these powerful self-reactive mechanisms do not suffice however to make the dream of the managerialist international lawyer come true. Time and change must be managed by a much wider breadth of sophisticated self-reactive tools and modes of legal reasoning.
There certainly is merit in dreaming about international legal structures that constantly and eternally adjust to time and change. The refined project on temporariness briefly examined here seems to warrant only one short observation. Their architects, like the managerialist international lawyer whose dream they share, do not seem to realize that the time and change they want to manage is the very creation of international law itself, and thus a creation of international lawyers’ own structures. It is true that Ramses and Monika partly acknowledge the self-created character of time and change in relation to what they call ‘subject-temporariness’. It is argued here, however, that international law also creates time and change for what Ramses and Monika calls ‘object-temporariness’. Indeed, any change or flow of time captured by international law, be it factual, formal, interpretive, or institutional, boils down to a creation of international law itself. That facts, formal rules, interpretations, or institutions come and go is only possible because international law makes such change and temporariness cognizable in the first place (see here).
In that sense, one does not need an efficient legislature nor any reactive law-making constructions to manage time and change. Managing time and change in international law only requires that the very structures along which time and change are constructed be acted upon. This brings us back to the dream of the managerialist international lawyer that is shared by Ramses and Monika. If one wakes up with such change-management ambition, it seems that the best thing to do is simply to go back to bed and dream of another international law, that is an international law that is not at all about bringing stability or predictability and whose structures of legal argumentation do not create something international lawyers are scared of.
While writing this short blog under the inhumane time constraints of contemporary academia, I came to think that international lawyers these days are more confident in their ability to manage the time of international law than the time of their own professional activities. Upon reflection, the difference between the two is maybe only illusory. In both cases, time proceeds from a self-creation. So maybe we should all go back to our bed and dream not only of another international law but also of another profession.