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The Use of Administrative Analogies and the Making of the Modern International Organizations

Published on January 14, 2019        Author: 
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I would like to comment on a significant part, albeit a rather small one contentwise, of Dr Sinclair’s very interesting book – To Reform the World: the use of administrative law analogies in relation with the making of modern international organizations. Before going further, we would need to agree on a definition of analogy. Popular culture may help in that regard. According to Britta Perry, a student at Greendale Community College in the TV Show Community (video available here), an analogy can be defined as “a thought with another thought’s hat on”. In her convincing de Beauvoiresque analogy between “weddings” and “little girls’ tea parties”, Britta however highlights three differences between them, while analogies are generally focusing on “accepted similarities between two systems” (P. Bartha, “Analogy and Analogical Reasoning”, The Stanford Encyclopedia of Philosophy, available here).

Legal analogy, for Chaïm Perelman and Lucie Olbrechts-Tyteca, is not defined as an imperfect resemblance, but as an identity of relations within different domains (See C. Perelman & L. Olbrechts-Tyteca, La nouvelle rhétorique. Traité de l’argumentation, PUF, 1958, p. 500). Analogy then implies that a is to b like c is to d. The goal is to explain a relation that is unknown (a to b), called theme, with the help of a known relations (c to d), called phore. The theme states what one means or wishes to prove, while the phore states what one says so that it may better be expressed or proven. For example, One good piece of news does not guarantee happiness is like one swallow does not make a summer (O. Reboul, “The Figure and the Argument”, in M. Meyer (ed.), From Metaphysics to Rhetoric, Kluwer Academic Publishers, 1989, pp. 175-176). The phore is generally more concrete, or at least more familiar, than the theme. It is the resemblance between the two relations which allows us to infer the fourth term from the three others. We prove b given a, c and d, since the relation between a and b resembles that between c and d. The point of the reasoning, in this example, is that “one has no right to generalize”.

We should also distinguish analogies from metaphors. The metaphor occurs when analogy is condensed through the omission of certain terms. It reduces the resemblance to an identity by evacuating the difference. One can say to reassure an old person anxious about death that it is only a kind of sleep. This metaphor implies an analogy : that death is to living like sleep is to waking (O. Reboul, “The Figure and the Argument”, op.cit., pp. 175-176).

I would like to focus on one particular specie of analogy, the one in which the phore (the known relation) is domestic law, also known as domestic analogies. Read the rest of this entry…

Filed under: EJIL Book Discussion
 

Reforming the World in Our Own Image: A Critique of Liberal Constitutionalism

Published on January 11, 2019        Author: 
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Over the contest hovers, as in all ages, a concept of society formulated and fostered by intellectuals. This is not a reflection of reality, but a goal and hope of good men.

P.E.Corbett, Law and Society in the Relations of States (1951)

The conviction in a linear teleology of progress is fundamental to modernity – and to liberal democracy, its exemplary political formation. The supposition is that history has a telos, and that telos is liberalism. Yet in this era of profound disorientation, against the backdrop of increasing attention to the rise of ‘illiberal’ democracies, history is, as Wendy Brown has commented, becoming ‘both weightier and less deterministic’. The idea that law has evolved to some higher state of reason from which pinnacle it can trump over politics and ideology has proved an imaginative cul-de-sac. Attention to history is important, not to reinforce an artificial progress narrative, but to engender consciousness of the fluidity of politico-legal discourse and its capacity to change (see Martin Loughlin, Sword and Scales (2000), at 225-6).

In To Reform the World, Guy Fiti Sinclair has written a book of astonishing reach and intricacy. Its scope brings to mind the words of Woody Allen, ‘Can we actually “know” the universe? My god, it’s hard enough finding your way around Chinatown’. Yet this is not a book purporting to provide a blueprint for global order. One of the most interesting and insightful contributions of the book, and something that sets it apart from other international legal work on global governance, is its resistance to normative conclusions. Sinclair has developed a work of critical history, mapping the ‘constitutional growth’ of international organizations, yet without presenting this development as in any way teleological. Instead, the effect of the book is to debunk quietly yet powerfully any idea of the inevitability of any particular theory of global governance.

A theory that is never expressly critiqued, yet clearly in the frame, is that of liberal constitutionalism in global governance. Sinclair’s critical engagement occurs not on the already saturated theoretical plane, nor as a doctrinal exercise demonstrating how public law discourse permeates the practice of treaty drafting, adoption, interpretation or reform. Instead, his focus is on the everyday discursive level – the ‘rationalities’ and ‘technologies’ of power – tracking the deployment of constitutional discourse in the everyday practice of international organizations, namely the International Labour Organization, UN peacekeeping and the World Bank. The picture that clearly emerges is of international constitutionalism as a scholarly movement – yet with an international bureaucratic wing. The book reveals how the international civil servant has deployed the metaphor of constitutional growth to carry the logic of liberal reform into international organizations through a range of public-law related discourses, doctrines and techniques of interpretation. Read the rest of this entry…

Filed under: EJIL Book Discussion
 

International Organizations and the Making of Modern Legal Histories

Published on January 10, 2019        Author: 
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I associate Guy Sinclair’s To Reform the World: International Organizations and the Making of Modern State very strongly with its cover image, Kandinsky’s ‘Circles in a Circle’ (1923). Circles are privileged visual representations of the global, but they only became so at a moment when scientific innovation permitted the apprehension of the earth as a globe. This is a helpful reminder that our (global) vision is tied intimately to the perspective from which one sees. This concern with perspective is central to Sinclair’s work. At its core, the book explores the construction of a novel institutional and political site from which to survey, and thus act on, the world. In what follows in this post, I take perspective as a central thread for some diverse comments on the book: the perspectives which Sinclair opens up, and those we might explore in future. 

Seeing within and with law

There is currently an explosion of historical work probing the social, intellectual, institutional and technological shifts associated with twentieth-century transnational activism, international organization, and what has now come to be called ‘global governance’. Sinclair brings to this scholarship a distinctive focus on law. The question animating this book is a legal one, or at least reflects the stance of a modern public lawyer: how are we to make sense of the expansive activities undertaken by international organizations (IOs), given their parsimonious founding texts? Once the question is posed, however, Sinclair does not confine himself to answering it from a perspective internal to law (i.e., determining whether a given exercise of powers is valid in accordance with the applicable law at the time). Rather, he reformulates it into a broader, socio-legal question: How is it that the expansion of the powers of international organizations came to seem necessary and desirable despite lacking a clear textual justification?

Interestingly, although the book transcends the internal perspective, one valuable contribution of To Reform the World is the way it complicates the law itself. The book reveals legal advisers, the Permanent Court of International Justice and the International Court of Justice dealing not with a set corpus of principles and rules, but with a repertoire of avenues into thinking about powers: treaty interpretation and special rules applicable to texts analogized to constitutions; thresholds for evidence required to establish that a given situation is within express powers; notions of implied consent; the jurisgenerativity of practice (whether articulated as customary international law or as questions about where the inner workings of bureaucracy shade into law); and notions of emergency as a basis for exceptional, even extra-legal powers. These different avenues take legal analysis in different directions. The evolution of international organizations also complicates the relation between ‘law’ and a hinterland of institutional practice from which it emerges, in which it operates, and to which it is directed. Even taken on its own terms, the law here is rather unsettled — and arguably remains so. (On the intellectual challenges of integrating international organizations into a largely statist international legal order, see Fernando Lusa Bordin, The Analogy between States and International Organizations). Read the rest of this entry…

Filed under: EJIL Book Discussion
 

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. Read the rest of this entry…

 

To Reform the World: International Organizations and the Making of Modern States – An Introduction

Published on January 9, 2019        Author: 
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How have international organizations been able to expand their governance powers so significantly over the past century? What has been the role of international law in making this extraordinary expansion of powers seem possible and legitimate? And what does this tell us about international law itself?

My book, To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017), explores these questions by examining the expansion of legal powers exercised by international organizations through informal processes of discourse, practice, and (re)interpretation (‘IO expansion’ for short), rather than by the formal amendment of an organization’s constituent instrument. The book argues that IO expansion has been imagined, understood, and carried out as necessary to a process of making and remaking modern states, based on a broadly Western model. It also argues that international law plays a central, protean role in that process. It would be overly simplistic, therefore, to contend that IO expansion has resulted only in a loss of sovereignty by states. To the contrary, my argument is that IO expansion is intimately bound up with the creation of states, the construction of state powers, and the very constitution of modern statehood.

The book develops these arguments through detailed accounts of three episodes of IO expansion. The first involves the beginnings of technical assistance in the International Labour Organization (ILO) in the interwar period. The second concerns the emergence of United Nations (UN) peacekeeping in the two decades following World War II. And the third encompasses the World Bank’s ‘turn to governance’, which reached a high point in the 1990s. By examining three very different international organizations, spanning different periods in the 20th century, the book is able to identify broad themes in how international law has evolved and works in the world.

The research that led to the book began from the commonplace observation that international organizations have become some of the most significant actors in global governance. Today, hundreds of these entities, both regional and global in scope, intervene in myriad areas of activity, including international peace and security, social and economic development, trade and finance, and environmental protection. The powers exercised by international organizations now impact directly and indirectly on the lives of millions of people around the world. Some of these activities involve relatively mundane (though far-reaching) matters of international standard-setting and coordination, while others are more spectacular, including military, financial, and other forms of intervention. Read the rest of this entry…

 

Announcement: Book Discussion on Guy Fiti Sinclair’s “To Reform the World”

Published on January 9, 2019        Author: 
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The blog is happy to announce that over the next week, we will host a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Guy Fiti Sinclair  is a Senior Lecturer at Victoria University of Wellington Law School. His principal area of research and teaching is public international law, with a focus on international organisations law, the history and theory of international law, and international economic law. 

Guy will open the discussion this morning with an introduction to the text. This will be followed by posts from Jan Klabbers,  Megan Donaldson, Devika Hovell and Edouard Fromageau. Guy will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.