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On Reforming the World and Reforming Character

Published on January 10, 2019        Author: 
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Guy Fiti Sinclair’s To Reform the World was, for me, one of the books of the year when it came out in 2017. It is a model of legal scholarship, and does two things very well that are oh so difficult to bring together. First, Sinclair is an excellent lawyer – he knows the law, he knows what to focus on and what to ignore, and what is more, he is interested in the law, both its doctrinal detail and its political role; sadly, this interest in the law is not always present with people interested in the politics of law. Second, and related, he brings out this political role with verve and cogency. The work is scholarship of the highest order, a credit to its author and to those who trained him. I find, in all honesty, little to comment sensibly on; this is one of those books (few as they are) which I wish I had written myself. One can of course always ask questions: why focus on the World Bank and not, say, UNHCR? Why not include the work of an organization that proclaims to exist outside and beyond the law, like the OSCE? Could the same type analysis be applied to an interest organization like, say, the International Olive Council? Those questions can always be asked – the world of international organizations counts at least 300 varieties, and we tend to look at some of them a lot more than at others. It is almost a disgrace, for instance, that not more is known about a hugely important global governance institution such as the International Organization for Migration, responsible for establishing border management practices across the world and even for running migrant processing centers on behalf of member states, but steadfastly ignored in the legal literature.

But it would be churlish to go down this path. Instead, I want to address an element that usually stays a little under the radar and to which I cannot attach a proper label. It has something to do though with the political role of legal academics. Sinclair, without advertising it and (blissfully) without posturing, adheres broadly to the critical school. He may not be a card-carrying crit, but his work is sensitive to and inspired by critical givens (the indeterminacy thesis, the oscillation of law between apology and utopia, the notion that law typically serves as a vehicle for someone’s political project, that sort of thing). There is a Foucauldian flavor to the work and Sinclair clearly has taken the critical revolution to heart. And the book is all the better for it; indeed, it would have been impossible to write To Reform the World without something of a critical mindset.

The obvious follow-up question then is, however, what next? If the law cannot be trusted to do what we have always been taught to expect from it, if it carries institutional biases and tends to favour some at the expense of others, then what are international lawyers to do? Some have been happy to just continue to point to biases and the role of the ideology of international law – the equivalent of Voltaire’s retreat into his garden. Others have pointed to the emancipatory potential latent in international law; and yet others have put forward the idea that international lawyers or decision-makers more generally have a role to play in ensuring that the negative effects of international law are mitigated, aiming to complement the sterile structures of the law with calls on individuals to operate with a minimum of common decency.

It is here that Sinclair signposts a fundamental issue. On the one hand, he acknowledges that leading figures have played a particular role, derived in large measure from their personal character traits. This applies in particular, of course, to Dag Hammarskjöld, the legendary UN Secretary-General who made good use of the power vacuum occasioned by the Cold War to refashion both the UN and what was expected of its member states. The same can be extended, as Sinclair does, to individuals in leading positions in the ILO (Albert Thomas, C.W. Jenks to some extent) and the World Bank (including Robert McNamara and Ibrahim Shihata). Clearly, therewith, Sinclair has an eye for the role of the individual amidst all the states, organizations, and anonymous structures of global governance.

On the other hand, he also makes the valid point, in particular with respect to the UN’s Congo apprehensions, that the UN made an effort to ‘inculcate a culture of responsibility – international, national, and personal – in the country’s political leadership’ (at 186). What was needed, so he recalls, was a number of ‘”good men” – the gender was not in question – of upright character, sound judgment, and loyalty to the cause of the UN’ (at 187). Postcolonial self-government, so it transpired, ‘was not possible without government of the self by postcolonial leaders’ (at 190).

Sinclair is critical of the attempt to inculcate particular sets of virtues in political leaders, to turn character into a governance project, and rightly so. But if taken further, two snags may appear. First, political action depends, always and by definition, on individuals, and those cannot be reformed in quite the same way as institutions can. If the World Bank malfunctions, it might be possible (if unlikely) to amend its Articles of Agreement, or even to dissolve it altogether. But the amended World Bank will still need people to initiate, administer and audit its projects; and any institution replacing the World Bank in the case of its dissolution will still need people. After all, the one thing worse than having people manage political processes is not to have people managing the political processes but leaving it to algorithms, jurimetrics, or similar devices. And somehow, character matters; it is a sobering thought to realize that a former Managing Director of the International Monetary Fund is currently serving time in prison, having been found guilty financial misbehavior (for crying out loud…), and that his successors at the IMF have both stood trial in their home state.

The second snag is perhaps less a snag than an open question: at some point, governance inevitably involves a leap of faith, something the classic Athenians were already well aware of. Ideally, the leap of faith is temporary: a political leader betraying the trust placed in him or her would, ideally, not be re-elected or re-appointed, and could perhaps even be impeached. But the basic fact remains that at some point we the people have to entrust someone with the task of taking decisions and running things on our behalf: we can’t do it all ourselves. And in those circumstances, it might be preferable to have a decent person in charge, someone who is basically honest, has some courage, can empathize with those who will be affected by the decisions, et cetera. In those circumstances, a Hammarskjöld might be preferable to a Waldheim; a Mandela might be preferable to a Zuma; an Obama might be preferable to a Bush, and all this regardless of their politics and policies. Sinclair is right to draw attention to the steering of character that took place, but if the suggestion were to follow that we should radically oppose any expectation of some sense of responsibility in political leaders because this too, like anything else, can be abused for particular purposes, then all that is left is bowing to naked power. And ironic as it may be, the current occupant of the White House demonstrates daily that this has nothing to recommend it.

To be sure, Sinclair does not go this far; he merely points out, and rightly so, that suspicion is warranted whenever character is turned into a governance project. Hence, none of this takes anything away from the book Sinclair has written: To Reform the World is an excellent study of how the work of the ILO, UN and World Bank has come to affect member states and their policies, often without a particular mandate for doing so, and without having the legal instruments available for doing so properly and in accordance with any accepted definition of the rule of law. In turn, the book also suggests that the arrow of causality can be reversed: it is not only that the organizations have come to influence their member states in unexpected ways, but also that these practices have reflected on the law of those organizations. The study is rich in historical detail, richly embedded in the relevant literature, subtle and nuanced with respect to the law, theoretically informed without being theory-driven, and very well-written. One can only hope that others will follow suit.

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