The Ruins of the Sources Theory and the Garden of Eden: A Rejoinder to Carlos Esposito and Philip Allott

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I feel indebted to Carlos Esposito and Philip Allott who have taken so much of their – precious – time to engage with the argument developed in my book Formalism and the Sources of International Law. In a professional community where constant solicitation and correlative overcommitment have become pathological, taking pains to engage with and constructively criticize peers’ works amounts to a manifestation of respect which, coming from such highly esteemed figures, is greatly flattering. I simultaneously rejoice at the fact that their – deliciously phrased and doled out – criticisms touch on the very points which, in my view, have always deserved to be debated across the interpretative community of international law. In this brief rejoinder, I shall limit myself to mention a few of them and sketch out my thoughts on the matter.

The communicative protocols of modern academia

Philip Allott eloquently – and very cynically – repudiates the painstaking (and almost insane) exercise of writing a monograph on a subject like that of this book, and especially the accompanying necessity to indulge in gluttonously encyclopedic referencing. I share Allott’s disdain for such practices. This is what I have expressed in the book in the paragraph he referred to (p. 38).

However, I have long come to terms with the absurdity of many of the communicative protocols of our interpretative community. I have come to believe that scorning and disregarding them may undermine the dissemination of one’s ideas and, worse, its validation by one’s peers – the latter being trained to (and formatted by) the same communicative conventions. In other words, and as I have explained here, I believe that the protocols bemoaned by Allott are the price to pay to be admitted in the argumentative arena of international law.

Probably the same holds with respect to object of the fully justified remark made by Carlos Esposito about the idea of a “theory”. In today’s thinking in social sciences, everything is presented as theory but hardly anything qualifies as theory. Admittedly, on these matters, it is often difficult to resist the spin-doctors of publishers for whom theories sell much better than mere arguments or theoretical frameworks. But there is certainly nothing to be lamented in such a concession. Communicative protocols and semantics (as well the techniques to secure semantic authority) inevitably and constantly evolve in any interpretative community. The semantic travesty flagged by Carlos Esposito is itself the expression of a contemporary practice which it is sometimes wiser to assume than to repudiate.

Idiosyncrasy and cross-current epistemological quest

Even if one uses the communicative protocol of one’s profession, one can still be moving crosscurrent. In this regard, I believe it is not an overstatement to say that the argument made in the book under discussion does not belong to the shows currently heard on the Broadway of international legal scholarship. This is why it is not surprising to read Philip Allott’s elegantly writing that the book “seems to me to be suffused with an undercurrent of longing to rise above the fearful cacophony (d’Aspremont’s word) of the theoretical writing – and to bring rational order to the dreadful mess of practical international behaviour (…), the more or less worthless theoretical ruminations of international courts and tribunals, the sublime indifference of governments and legal practitioners to the theoretical anarchy of their behaviour.”

This being said, idiosyncrasy should never be sought for the sake of provocation – although being provocative is often palatable and sometimes very efficient. If idiosyncrasy is of any relevance, it is because it can help all those engaged in the argumentative arena of international law take a step back from their – often mechanically and uncritically repeated – cognitive tools as well as social conventions inherited from their schoolmasters. In the following paragraphs, I accordingly would like to address some of the points where Esposito and Allott believe that the critical distance called upon by the book is either unnecessary or misplaced.

The empirical sting

Part of the idiosyncrasy of the argument is to be traced back to one of the three objections raised by Carlos Esposito. It pertains to what I would personally call the “empirical sting”, that is the idea that the crisis of the theory of sources is a purely scholarly predicament. This objection means that the deformalization discussed by the book is not impinging on the practitioners for whom the system functions properly, as rules can be decently identified. According to this argument, the challenge for practitioners is to persuade adversaries as to the exact content of rules. It is not about identifying them.

This argument is certainly powerful. Isn’t the crisis of the theory of sources (provoked by the move towards deformalization) a pure product of one specific branch of the interpretative community of international law, namely legal scholars? Isn’t this crisis a storm in the tiny cup of tea of the international legal scholarship? This is an objection which I heard at NYU during some exchanges with the students of Benedict Kingsbury and Joseph Weiler (see here).

As I explained on that occasion, I appreciate that practices in judicial circles may seem less affected by the abovementioned move towards deformalization. Counsel and judges perpetuate their exchanges for securing semantic authority, fighting about content-determination rather than law-ascertainment. In that sense, content-determination is the crux of courtrooms argumentative practices, not law-ascertainment. Regarding the former, international lawyers are said to have devised the most ingenious – albeit the most deceitful – theory ever created in the modern thinking about international law: the theory of interpretation. And, still according to this view, it is the theory of interpretation, not the theory of sources, that is in crisis.

This powerful objection calls for two remarks. First, the theory of interpretation is meant to be in a crisis. Being a vain – but necessary – attempt to convey the idea of immanent rationality of legal argumentation, it inevitably appears mistreated in practice. Not being able to produce one single legal truth, it necessarily looks subject to abuse in any case where law is applied. But this does not automatically mean, contrary to what Esposito claims, that law-ascertainment criteria are the object of a consensus among the actors involved in courtrooms.

And this leads me to my second point. I believe that the conceptual mayhem currently witnessed in the international legal scholarship already trickles in the practice of courts and tribunals. There probably is an easy explanation to this. Despite their existential and self-legitimizing need to claim the possibility of immanent rationality, those judges who have been to law schools and/or have had a stint in the legal academy are well aware of the conceptual havoc in which international law ascertainment has been left in the legal scholarship. When they do not turn such deficiencies to their advantage – for instance by making use of the comfort zone of customary international law – they try to obfuscate those deficiencies (a feat!) with a view to salvaging the pretense of existing law-ascertainment techniques.

In my view, it is not certain that such a performance can be reproduced in perpetuum. I actually believe that the end of this era of denial in international adjudicatory practice is in sight. This is probably what the current disinterest of international courts and tribunals for the criteria of law-ascertainment – e.g. with respect to treaty-identification – manifests. After several decades during which they attempted to develop sophisticated techniques in this respect, courts and tribunals are now growingly aware of the theoretical confusion shrouding the theory of sources – which they contributed to aggravate – and will soon be inevitably forced to acknowledge that the current deficient law-identification criteria undermine the production of authoritative decisions which is at the heart of their judicial business.

The ruins of the theory of sources

If we leave aside the practice of courts and tribunals – and that of other law-applying authorities – it seems to me that the confusion reigning in the thinking about the theory of sources is even more glaring. It is interesting to recall here that when Philip Allott and I met last spring in Cambridge on the occasion of a presentation of the book at the Lauterpacht Centre (which Philip was kind enough to introduce and chair), we found each other in total agreement as to the capacity of the theory of sources to transform political events as well as their “democratic” virtues. This is what led both of us to deplore the ruins in which legal scholars have left the theory of sources. He seems to have lately found such rubbles to be even more dreadful than he originally thought (he writes: “Until I read this book, I hadn’t realised the extent to which the conceptual structure of International Law has decayed (to borrow Tony Carty’s word) over recent decades”).

Whilst agreeing on the symptoms and the antidote, Allott and I probably disagree on the routes for recovery and the astrologic signs that could guide such a journey. This discrepancy is certainly fundamental. In social science, the debate that matters the most is that about the route to follow, not about when the journey ends. Yet, I do not think that our difference of views about how to secure the antidote is what needs to be discussed in this blog – whose format remains paradoxically constraining for debates about such foundational questions. What matters more here is to realize both the illusions created through the current mainstream theory of sources and the illusions found behind the current moves towards deformalization. Both are equally pernicious. Both are equally fallacious and misleading. They maintain scholars in an dangerous and self-enslaving state of passivity. Both leads to cloistering scholars – as well as, for Allott, the society which they serve – into a Garden of Eden.

Debating the possibility for the antidote: the social practice of law-applying authorities

One particular antidote which the book suggests is the preservation of room for the emergence of social practice which will provide the communitarian semantics necessary for the coalescence of formal yardsticks to distinguish law from non-law. Carlos Esposito insightfully highlights the difficulty to find social practice which can be conducive to formal criteria to distinguish law from non-law.

Needless to say that I am aware that the identification of those participating (and contributing to) the social practice – and thus the way this social practice is cognized and constructed – constitutes the most daunting intellectual challenge which the argument made in this book leaves us with. This challenge does not only point to the question of how to construct law in the legal scholarship. It also raises questions pertaining to the political choices about who is empowered to generate practice conducive to the emergence of social practice determinative of law-ascertainment criteria. In my view, this certainly is the most central question, for the way in which one understands the concept of ‘law-applying authority’ – and thus the corresponding social-practice generative processes – will be determinative of the criteria that allow to distinguish law and non-law. May the disagreement expressed by Carlos Esposito – and my own rejection of his contention that law-applying authorities cannot share some kind of formalism  – suffice to demonstrate that we cannot afford ignoring this debate.

Leaving the Garden of Eden and reinventing the theory of sources?

I shall eventually return to the ambition of the book. Indeed, Philip Allott is not far from regretting the lack of ambition of the book which, in his eyes, only sets the stage for a revolutionary restoration of the true sources but fall short of carrying out such a revolution. It is crucial to highlight here that this has been a conscious decision from the very start of this project. Indeed, the book “only” aims at offering a theoretical framework for a greater awareness of (and self-reflection about) the responsibility of those potentially engaged in the (reflection about the) production of communitarian semantics that shape the theory of sources. The book was also meant to give observers – and especially legal scholars – a better grasp of the dynamics at play in the formation and evolutions of the cognitive languages of the interpretative community of international law. In that sense, this work has never been meant to carry out a revolution.

There are probably three reasons for this choice for modesty. First, because it is not certain that those currently engaged in the practices of the theory of sources – whether States, judges, activists, legal scholars to name only a few – are interested in leaving the Garden of Eden where customary international law, for instance, can accommodate any political project – reformist, restrictionist, programmatist, self-empowering, etc.

Second, and more importantly, because it is not certain that it is up to legal scholars to take the lead in this revolution by (re-)designing the rules of cognition of a new international legal system. While certainly endowed with responsibilities of grammarians, international legal scholars have neither the means nor the legitimacy to lead what would then be a rather aristocratic revolution. The argument made in this book thus comes with a feeling of humility about what legal scholars can ever hope to achieve: they are simply not sources of social practice for the sake of the theory of sources.

But there is a third and last reason for the book stopping short of reinventing a new Garden of Eden. This probably brings us back to the constraints inherent in the communicative protocols pertaining to how the production of knowledge in social science operates. Complex arguments need to be doled out carefully, as overwhelming one’s peers carries the risk of undermining the reception and validation of one’s argument as well as its crystallization. This is probably something which Wittgenstein underestimated.

Likewise, an argument – and eventually a vision about one of the multiple possible ways in which (international) law can be constructed – necessitate that reflection be gradually disclosed and unveiled. Persuasion and peer-validation is a progressive process. In that sense, it is not to please publishers that one splits, scatters or postpones the further depiction of (the consequences of) one’s vision of the social science of law and that of its object. It is simply to make room for intermediate mutually enriching engagements allow the continuation of one’s reflection about these foundational questions without premature self-generated and uncritical constraints of one’s own thinking. A comprehensive presentation and discussion of all implications of the – already complex – theoretical framework set in this book are thus left for the next step in the long and intricate process of knowledge production – and, hence, the next piece of work devoted to this question.


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Daniel says

December 14, 2012

Dear Dr. d'Aspremont,

You found the main claim for a 'reformalisation' of the sources of international law on the basis that clear, predictable laws should provide normative guidance for those whose behaviour is affected by the law. Without this, international law loses its normative value, one of its main functions.

Yet, as both Carlos Esposito and yourself noted, it seems that the actions of practitioners are not affected by the deformalisation of law; indeed, they seem relatively unconcerned with it.

Hence how can you maintain that a reformalisation must take place when the normative argument underpinning this proposition - a link between the actions of those affected by the laws and the clear identification of those laws - is not established?