This post is a response (of sorts) to an earlier post made last month by Andrea Bianchi, in which he discusses the widespread aversion and prejudice shared by most international lawyers against the idea of ‘theory’ and the disempowering effects this attitude has had on the contemporary discipline of international legal studies. Whether or not one agrees with the ‘most international lawyers’ part of the claim, the argument Professor Bianchi presents deserves attention and careful consideration. It raises a whole series of important points, not least about the fundamental naivety of the assumption that law as a craft requires no special theoretical awareness on the part of its practitioners. At the same time, however, it also leaves out a number of questions that in a context like this one would, ideally, expect to be given as much, if not more, critical attention.
In this post, I propose to explore some of these questions. The argument offered below is intended to complement and develop Professor Bianchi’s broader point, viz., that theory-bashing is a highly disconcerting tradition that has negative consequences not only for those international lawyers whose main field of work falls in the area of theoretical scholarship, but for the international legal profession as a whole.
Multiple meanings of ‘theory’
To begin with, let us note, firstly, that in modern academic practice the term ‘theory’ is typically used in three fundamentally different senses:
- As a designation for a certain kind or genre of scholarly writing (as in ‘Rasulov mostly does theory and not very well’);
- As a synonym for ‘a school of thought’ or ‘a relatively distinct scholarly movement’ (as in ‘the influence of the New Haven theory has certainly been overstated’); and
- As a shorthand for what one might otherwise call an orientating system of assumptions (as in ‘based on what theory, Rasulov, did you come up with all this nonsense?’).
In discussions that revolve around questions like ‘who needs theory?’, in international law as much as elsewhere, one often tends to lose sight of this multiplicity of meanings. Those who rail against ‘theory’ typically only have in mind theory in its first sense. Those who respond to these criticisms most angrily, for the most part, only focus on theory in the third sense. (In most international law circles, no one really cares today about theory in the second sense, and so I am not going to say anything more about it other than note that calling academic movements ‘theories’ is unforgivably reductionist and misleading.) Predictably enough, this tends to introduce all manner of confusion into the resulting discourse, an outcome that, all things considered, is as regrettable as it is revealing: any trained lawyer worth their law degree should have no difficulty recognising the fundamental non-equivalence of these three concepts.
Theory as a genre of scholarship
The first thing that needs to be noted about this meaning of theory is that the practice of using the word ‘theory’ to describe a certain genre of scholarly writing has a fundamentally non-academic cultural genealogy. Neither culturally nor semantically does it seem to make any sense other than in the context of a broader conceptual relationship that connects it with the corresponding ideas of ‘practice’, ‘practically relevant knowledge’, etc. What is more, it is this latter cluster of concepts that plays the dominant role in this relationship: ‘theory’ is all that which is not part of ‘practice’, never the other way around.
Looking from this angle, it should not really come as much of a surprise that, used in its first sense, the concept of theory in the contemporary international law discourse invariably appears in the form of some kind of residual construction: to know what sort of scholarship counts as ‘theory’, one needs first to subtract from the general body of international legal scholarship all those writings that are otherwise deemed to be ‘practically useful’ or have some degree of ‘practical relevance’.
This tradition of associating the concept of theory with forms of scholarly pursuit that lack immediate ‘practical’ usefulness or relevance is certainly not a new phenomenon. Nor is it a phenomenon that is limited only to international lawyers. Indeed, as a cultural pattern, it seems to carry an ideological baggage whose complexity and richness far exceeds the narrow field of any contemporary academic discipline. In genealogical terms, it can probably be traced to that traditional anti-intellectualism of the early bourgeois classes that Dickens and Nietzsche wrote about: an ethos born of self-celebratory philistinism mixed with all manner of inferiority complexes and barely suppressed ressentiment towards the old aristocratic classes, associated as these latter had become, as Veblen famously noted, with the phenomenon of conspicuously impractical learning. Acquiring any kind of background in ‘theory’, in this worldview, was essentially like studying a dead language. It was to show a yearning for all those things which the early bourgeois mind, with its values of industrial productivity, administrative efficiency, and the worship of market conquest, could not but recognise only as a sign of wastefulness, decadence, and the weakening of the fighting spirit. (Conversely, all learning that could help one advance the values of industrial productivity, etc., was deemed to be ‘useful’ and the knowledge that came from it ‘practically relevant’. Notice what this implies about ‘practice’.)
The fact that this mindset has spread across the wider social fabric should not be surprising: the morals of the hegemonic class always have a strong impact on those of the other segments of society. Its penetration into the modern academic culture, however, certainly casts a rather interesting light on the internal fault-lines traversing the modern academia’s internal cultural landscape as well as the broader historical contradictions surrounding academia’s general place and role in the broader social matrix of late capitalism.
In the case of international law, the most important of these contradictions can be seen most clearly in the implicit conception of the intra-disciplinary division of labour that underpins the anti-theoreticist enterprise described by Professor Bianchi in his post.
Theory-bashing and the ideology of academia’s vassalage to ‘practice’
According to the anti-theoreticist worldview, there exist, essentially, two main communities of international lawyers: practitioners and academics. The former apply law to solve real-world problems. The latter work in universities. The former hold their hand on the beating pulse of the international system. The latter spend their days teaching and doing research. The former hold the fort for all international lawyers and thus help advance the discipline’s reputation in the external world. The latter hang in the back, enjoying the benefits thus won.
Note the heavy themes of parasitism and vassalage that infuse this discursive structure and the images it projects. The only reason why international law exists as a profession, on this view of things, is because the world needs international lawyers to provide it with legal advice. This service is delivered on behalf of the profession by its practitioner segment. The only reason why the academic segment of the profession exists, then, is because the practitioner segment has need for it: it requires academics to help it replenish its social base (training the next generation of practitioners) and fill in the gaps in its knowledge arsenal (research state practice and clarify doctrinal questions). Any activities engaged in by the academic segment that do not directly benefit the practitioners’ cause are wasteful and go against the collective needs of the international law profession. Those academics who write ‘theoretical’ scholarship fall into this category. Those who don’t, are to be praised and recognised as ‘true’ legal scholars.
There is not much one needs to say about this argument. The idea of academic vassalage is, obviously, ideologically charged. It projects a very particular picture of how power, recognition, and worth ought to be distributed within international law’s social space. It also aggressively flattens out all the numerous differences within it that do not fit within its two proposed binaries: practitioners vs. academics, true vs. theoretical scholars.
It is also deeply mythologised in that it both underestimates and overestimates the role of the human element in the day-to-day realities of international law. It underestimates it by failing to acknowledge how influential ‘in the real world’ some academics can actually become (and that they become so influential precisely because they are seen as scholars, not as practitioners). It also overestimates it by assuming a kind of spontaneous integrity and intuitive wisdom on the part of the practitioner community that had last been seen in nineteenth-century naïve pastorals about ‘noble savages’ and salt-of-the-earth peasant muzhiks, a picture that seems no less ridiculous in its faux sentimentalism than it is fantastic.
The latent politics behind theory-bashing in contemporary international law, thus, is not really that latent at all. What stands behind it is a deeply conservative aspiration – to limit the scope for critical thought and to turn international law as a discipline and as a broader social phenomenon into an offshoot of some imaginationless tekhne: the ‘science’ of governance, the ‘craft’ of proceduralizing negotiations, the ‘technology’ of de-escalating disputes.
Like all reactionary ideologies, he ideology of academic vassalage is fighting a rear-guard action. Judging by recent trends, the movement of history is not really on its side. The days of confident anti-theoreticism are long gone. Not all international lawyers who rail against ‘theory’ nowadays do so out of a firm conviction that scholarship is the handmaiden of practice. Many of them, in fact, recognise the right of ‘theoretical’ scholarship to exist. They are just upset that there is so much of it today and that it has been so impudent in its dismissal of the vassalage model.
Theory as an orientating system of assumptions
When used in its third sense, the term ‘theory’ essentially represents the idea of an implicit framework of background assumptions, an internal conceptual framework behind a given act of international legal discourse. It is ‘[that] which allows what can be thought to seem internally coherent in its own terms.’ (Fredric Jameson, The Political Unconscious 38 (2002)) Like gait in running, theory in this sense of the term can be said to be present behind every act of the international legal discourse. It is inscribed in the very moment of its realisation: ubiquitous, indispensable, and entirely unavoidable. So long as you participate in any kind of international legal debate, so long as you offer opinions or make claims about international law, you inevitably enact and give voice to (at least some kind of) a theory of international law. It does not matter whether it is an intelligent, interesting theory, or sophisticated theory. Just as it does not matter if you are conscious of the fact that you ‘have’ a theory and are ‘acting’ upon it. Like using good/bad grammar, you do not need to be conscious of ‘doing it’, to continue ‘doing it’. It will happen either way, regardless of how you feel about it.
Put another way, every international lawyer, so long as they purport to participate in an international law conversation of some kind, will inevitably act as a practitioner of legal theory in this sense of the term. If this is the first time this idea has crossed your mind, enjoy it. Think of it as your equivalent of that episode in Le Bourgeois gentilhomme where Monsieur Jourdain learns he had been speaking prose all his life without ever being aware of it.
Note the obvious Koskenniemian parallel here: what we are looking at here is very similar to what in From Apology to Utopia Martti Koskenniemi describes in terms of of the ‘native speaker competency’ metaphor. It is essentially the name we give to that intuitive sense of how-we-can-make-this-work that we put in practice every time we set out to mould, sculpt, and fashion our starting givens – facts, potentially applicable rules and precedents, broader considerations of public policy, etc. – into ‘legal opinions’, ‘expert views’, ‘claims’, ‘verdicts’, ‘decisions’, etc. Theory in this sense of the term is not something that one declares as a manifesto or adopts as a formal creed. Rather, it is more like the Freudian unconscious, or, as the French philosopher Louis Althusser would say, a cause that can only be visible through its effects.
Conclusion: on taking ‘theory’ seriously
A different way of explaining the third meaning of theory would be to use the metaphor of technology. If we were to analogise international legal discourse to a process of production, so that the concept of the ‘final product’ would cover constructs like ‘arguments’, ‘verdicts’, ‘insights’, ‘interpretations’, etc., then, basing on what has been said earlier, the concept that would describe collectively all the various ‘means of production’ (intellectual tools, know-how, and protocols) that we would draw on when developing these ‘final products’ would be the exact equivalent of ‘theory’ in its third sense.
What might be gained from turning to such a metaphor? Consider the following argument made by Althusser in his analysis of the logic of scientific enterprises (Louis Althusser, For Marx 184-5 (1969)):
In the development of an already constituted science, the latter works on a raw material (Generality I) … by transforming this Generality I into a Generality III (knowledge) …
But who or what is it that works? What should we understand by the expression: the science works? [E]very transformation (every practice) presupposes the transformation of a raw material into products by setting in motion determinate means of production. What is [it that] corresponds to the means of production, in the theoretical practice of science? If we abstract from men in these means of production for the time being, it is what I call the Generality II, constituted by the corpus of concepts whose more or less contradictory unity constitutes the ‘theory’ of the science at the (historical) moment under consideration … We must rest content with these schematic gestures and not enter into the dialectic of this theoretical labour. They will suffice for an understanding of the fact that theoretical practice produces Generalities III by the work of Generality II on Generality I.
The argument Althusser outlines in this passage, as he himself admits it, is indeed rather schematic. But it helps throw light on one very important insight. The more conscious we are of the fundamental non-equivalence of Generality I (the raw materials from which we construct knowledge products) and Generality III (the respective knowledge products themselves), the more aware we become of the central role played in this transformation by Generality II (the totality of the various intellectual tools, protocols, etc. used in the production of these knowledge products) The more aware we become of the importance of Generality II, the more pressing, accordingly, becomes the need for us to find out the exact composition of the particular species of Generality II that we use in our own discourse. And the scholarly enterprise in the context of which we can best address this need is – yes, that’s right, you already know the answer.