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Home Editorials Readings 2016: The Odds Are There to Beat

Readings 2016: The Odds Are There to Beat

Published on December 27, 2016        Author: 

Editor’s Note: As in previous years, EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days we will present some selections here on EJIL:Talk! They include books, not necessarily published in 2016, but read or reread this year, and found inspiring or enjoyable. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.  Today we have Jean d’Aspremont’s selection.

Every year, when we as Editors of EJIL conduct the retrospective (and somewhat introspective) exercise of looking back at the books we have read over the previous 12 months, I always find myself bewildered by the imbalance between the rather modest amount of books I have perused and the huge number of articles I have thoroughly digested. It seems that, in my own practice of consuming legal scholarship, the number of pages of legal literature I read in scholarly books is not commensurate with the substantially higher number of pages of journal articles. Although I am short of empirical data relating to such patterns of behaviour, I surmise that this may be a widespread reading practice among international lawyers. My feeling is that international lawyers read articles – not to mention blog posts and tweets – by the hundreds while seriously reading only a dozen books every year. This disproportion is not alleviated by the fact, already highlighted by Sarah Nouwen last year that we actually read very few books cover to cover.

This imbalance warrants some attention as I do not think that international lawyers’ substantially higher consumption of article-based legal scholarship over book-based literature can be explained solely by size. After all, many books nowadays are rather thin – which, in some respects, is a good thing! – and many articles, especially in the Anglo-American tradition, are rather lengthy – which, in some other respects, is regrettable. I also suspect that the imbalance between books and articles in the reading practice of international lawyers has not always been so great. I would guess that there were times when the legal literature read by international lawyers was more or less evenly spread between books and journal articles, not to mention the pre-periodical era when scholarship was exclusively found in books.

I am tempted to ascribe the pattern of reading behaviour described above to a series of very practical parameters. First, the accessibility of journal articles, whether through open access databases (SSRN, academia.edu, etc) or through the online platforms of the main publishers is most probably instrumental in their dominance as a container of legal literature. Second, it is likely that the portability of journal articles and the extent to which they are easily read on a tablet or folded in a laptop case bears upon their success as well. In that sense, being more accessible – at least in the wealthy parts of the world – and being more portable, journal articles would seem to be a more convenient container of scholarship, especially for those international lawyers who are often on the road or in the air. Thirdly, and probably most importantly, it cannot be excluded that the imbalance between books and articles in the reading practice of international lawyers reflects the very configuration of the profession of international legal academics. Indeed, it may be that the growing diversity of tasks assigned (there are days I would say “dumped on”) to 21st-century academics makes the reading of journal articles much easier to accommodate. Often a one-hour lull between meetings or lectures, a one-hour flight, a one-hour escape to a coffee place, or simply a rainy Sunday afternoon suffices to seriously make one’s way through an article. In my view, the profession as a whole is organized in a way that is favourable to the consumption of scholarly articles rather than books, and this was not always the case. Whether extracting scholarship and inspiration from articles rather than books is conducive to better intellectual self-development and better scholarship is of course open to question, a question that does not need to be taken on here. It remains, however, that, for all sorts of reasons, books remain cherished and their publication continues to be highly regarded. And this is probably why the exercise carried out here is dear to EJIL.

This year, I have selected three books, two books in French and one book in English. Since what I make of these books inevitably hinges on the project(s) in which I was engaged at the time of their reading, mention is made, as much as possible, of the backdrop against which the reading was conducted.

Fuad Zarbiyev, Le Discours interprétatif en droit international contemporain (Bruylant, 2015)

The treatment of interpretation in international legal scholarship often collapses into either dogmatic and mechanical ‘rulism’ (i.e. the reification of the rules on interpretation and the idealization of their constraining power) or some crude cynicism (i.e. the denial of the constraints born by the rules on interpretation and the demotion of Article 31 of the Vienna Convention to an Airport Luggage Wrapping Machine). In this context, Fuad Zarbiyev’s work stands out as one of the rare truly theoretical studies of the phenomenon of interpretation in international law. It comes, together with works like those of Bianchi or Venzke, to offset the dearth of theoretical engagement with hermeneutics in international legal scholarship. Zarbiyev interestingly ascribes the theoretical nonchalance of international lawyers to the Vienna Convention on the Law of Treaties, which seems to have provided them with a comfort zone within which it is no longer necessary to engage with the theoretical questions of interpretation, not even the abiding question of the interpretation of the rules on interpretation themselves. By Zarbiyev’s account, the Vienna Convention is the culprit for this “relachement de la pensée critique” (p. 13). Zarbiyev provides a genealogical account of the design of the modes of interpretation as they have come to be known and practised today, reviewing the successive interventions in the shaping thereof by a great number of actors over the centuries (e.g. Grotius, Pufendorf, Wolff, Vattel, the Institut de Droit international, the International Law Commission). By virtue of a discussion that shows great mastery of critical works but also of literary philosophy (Derrida, Bourdieu, Ricoeur, Fish, etc), and explicitly inspired by Nietsche’s philosophy with a hammer, Zarbiyev goes after some of the main contemporary presuppositions of international lawyers in terms of hermeneutics. After completing the reading of his remarkable study, there is barely anything left of the textualism allegedly promoted by the Vienna Convention on the Law of Treaties and cultivated by the International Court of Justice. The fetishism towards judges that commonly accompanies international lawyers’ hermeneutic practice – to an extent unheard of in domestic systems according to Zarbiyev – is similarly dealt a lethal blow. Both of these two common patterns of international legal discourses are simply torn to pieces. Last but not least, Zarbiyev’s work is a model and deserves praise for the confidence and diligence with which it assembles a conceptual and analytical framework of its own by borrowing from a wide variety of traditions of legal thought and social sciences, without feeling the need to show membership to a specific tradition or school of thought or any fear of incommensurability. In building his conceptual and evaluative framework, Zarbiyev shows that international lawyers should not necessarily perceive themselves as prisoners of one single school or package of methods and that they can simply cherry pick. Zarbiyev demonstrates that we can compose our own evaluative tools outside all the methodological packages currently on offer – and recognized – in international legal scholarship. In doing so, Zarbiyev helps us understand that the much celebrated notion of methodological consistency is overrated, also reminding us of the kinship between theory and methodology. The result is a solid and original set of methodological choices which, interestingly, shares with Fish an emphasis on the interpreter. In composing his conceptual framework, Fuad Zarbiyev incidentally reminds international lawyers that the paternity of the notion of ‘interpretive community – so popular among international lawyers – does not lie with Stanley Fish but with Josiah Royce, who introduced it in his work on the Christian religion (J. Royce, The Problems of Christianity, New York, Mcmillan Company, 1914).

François Ost, Raconter la Loi. Aux Sources de l’Imaginaire Juridique (Odile Jacob, 2004)

In his study of the imaginary of law, François Ost revisits the way in which some key myths of Western culture (the episode of the Sinai and the Exile, Agamemnon, Antigone, Robinson Crusoe, Faust, etc.) have treated law as an idea or an institution, thereby astutely bridging the study of myths and legal theory. Thanks to his well-known literary erudition, the author perceptively narrates those stories that have shaped the culture of many international lawyers in the Western world and, hence, sheds light on how the mythical treatment of law may still inform our contemporary understanding thereof. Approaching Ost’s work in relation to my current exploration of the belief system at work in international legal thought and practice and the centrality of self-referentiality in legal reasoning, my attention was drawn to two specific features of the myths examined in this book. First, I was struck, not by the extent to which self-referentiality – understood as one’s invention of one’s own origins – is central to the very structure of myths, but more by the disdain with which these (self-referential) myths treat the self-referentiality of law. This is well-illustrated by Ost’s discussion of the casting of the Golden Calf construed as a contract without law that cannot not constitute law proper. In most Western myths, law thus appears as thought outside self-referentiality. Whilst I believe law – and international law – must invent their own origin to uphold their claim to authority and cannot work without self-referentiality, it is not surprising that self-referentiality in law, even in Western mythology, is constantly obfuscated. To produce its thrust, self-referentiality cannot reveal itself. Second, my attention was drawn to Ost’s accounts of the constant re-writing process of myths over time; such rewriting often going as far as unwriting, i.e. a re-writing that turns the myth on its head and reverses the politics thereof. This phenomenon is not different from the constant re-writing of the main doctrines of international law and the adjustment of their politics. More interesting is Ost’s contention that, even when myths are unwritten, such unwriting still occurs within the tradition of the original myth from which emancipation is not possible. McIntyre is of course in the air and it is very tempting to draw a parallel with the key doctrines of international law which are similarly perpetuated through writing, re-writing, and unwriting.

Thomas Schultz, Transnational Legality. Stateless Law and International Arbitration (Oxford University Press, 2014)

The relationship between international lawyers and theory has often made me think of the anxious attitude of French-speaking people toward foreign languages. Indeed, it is common for the latter to dare to utter a few sentences only once they have the assurance that they have mastered 2000 words of the foreign language and run no risk of embarrassment. In my view, the same holds for international lawyers and legal theory, the latter having become the turf of a well-guarded club of mutually referencing scholars who are unrivalled in the sophistication of their language and their citations of esoteric works, thereby making all international lawyers feel like French-speakers trying to speak a foreign language.

Thomas Schultz’ study appropriately signals that it is time for international legal scholars to cease being daunted by theory and grow confident and unashamed of using theoretical and jurisprudential tools. I accordingly mention this book here not because of the well-known erudition of its author and its informed contribution to the state of the knowledge on international arbitration but for its treatment of jurisprudential debates for the sake of self-reflection about a field that has long been wary of theory and self-reflection. It is true that, on substance, the book may be grappling with a slightly overblown phenomenon, i.e. the reduction of (international) law to state law. For my part, I have always thought of such an association as a straw man of convenience for self-declared reformists of international law. Yet, this is not the point I wish to debate here. In my view, Schultz’s book is a very welcome attempt to disrupt a discipline, its modes of engagement as well as the way in which it distributes and organizes argumentative spaces and areas of expertise.

The valuable disruption brought about by Schultz can be summarized as follows. First, Schultz imports a theoretical apparatus into the scholarship on international dispute resolution, which had traditionally been marked by pragmatism, aversion to theory and judge fetishism. The author is very clear about his revolutionary ambitions and it is worth quoting him here:

International arbitration, and more generally international dispute settlement, is commonly represented as a technical field, as a subject-matter that is all about procedural technicalities and black letter law intricacies. This must stop. We cannot shy away from our social responsibilities by taking refuge in the mechanics of the law. Dispute settlement, at heart, is anything but a dry, technical, mechanical field (p. 6).

Second, Thomas Schultz’ work is subversive, not only in relation to the field of international dispute resolution but also vis-à-vis legal theorists themselves. Indeed, he attempts to vulgarize theory – something which someone of his stature can afford to do – and make it accessible to a much wider audience. This is a daunting but very laudable task. Legal theory is too important to remain inaccessible to the masses. Legal theory cannot be the privileged tool of thought of a small coterie whose members cite one another with a view to excluding others and preserving their monopoly. Most interestingly, Schultz uses jurisprudence without turning his book into a jurisprudential work. This means that he ingeniously falls short of a quest for the essence of law and its attributes, but rather resorts to jurisprudence for the sake of self-reflection. If there is a future for the use of jurisprudence in international legal thought, it must be somewhere along the trail blazed by Schultz in his book on statelessness in international arbitration.

One final remark is warranted. The enthusiasm voiced in these lines for the type of disruptive projects as that attempted by Schultz is not oblivious of the obstacles that such audacity will necessarily come up against. The aversion of Schultz’ colleagues for anything that is not meant to be practical or does not emanate from a judge should not be underestimated, just like the defensive tactics of theorists to salvage their monopoly. Yet, in scholarship, success probably matters less than the attempt. At the end of the day, the odds are there to beat and one can only welcome exercises of disruption whose formative value should never be underestimated.

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One Response

  1. john r morss

    Many thanks Jean for these thoughtful comments and excellent recommendations. I’m wondering what distinction if any is to be made between ‘the interpretive community’ and the ‘coterie’ or ‘club’ (as of legal theorists…) (perhaps “they” see “us” as a coterie?)…perhaps ‘coterie’ better captures the exclusivity and privilege somewhat obscured in the more technical term … and more generally I wonder whether ‘interpretive community’ still has any explanatory content. (Royce may perhaps have been being a little Hegelian in his version?) In any case, and not least with Fish, does the concept not turn out to be circular? We understand because we share, and we share because we understand. All best.