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Born Again Lawyer: FATU as An Antidote to the ‘Positivist Blues’

Published online by Cambridge University Press:  06 March 2019

Mario Prost

Extract

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For some time, there has been something paradoxical about Martti Koskenniemi's From Apology to Utopia (hereinafter FATU). FATU might very well have been the single most influential book of the last 15 years in the field of international legal theory. Virtually all of my colleagues have, at one point or another, engaged with it and used it to sustain their arguments in diverse areas of the law (including, amusingly enough, even in commercial arbitration). Yet, as is well known to most law library users, FATU has long been out of print, making it extremely difficult to find a copy, even more so when, as is periodically the case at my home university, the available copy goes missing. FATU, in other words, seemed to be everywhere, but nowhere to be found. The prophet had believers. His tables of the Law, however, seemed to have disappeared. The splendid republication of FATU comes as great news to all of us who have struggled to access, let alone to possess, this seminal book.

Type
Articles: Special Issue
Information
German Law Journal , Volume 7 , Issue 12: Special issue - From Apology to Utopia: A Symposium , 01 December 2006 , pp. 1037 - 1043
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 See Kennedy, Duncan, Legal Education as Training for Hierarchy, in The Politics of Law: A Progressive Critique (David Kairys ed., 1982).Google Scholar

2 Some will go so far as to say that students are specifically trained not to ask such questions.Google Scholar

3 The history of which Koskenniemi has studied in great detail in another seminal book; see Koskenniemi, Martti, The Gentle Civilizer of Nations – The Rise and Fall of International Law 1870–1960 (2001).Google Scholar

4 This, certainly, explains why international lawyers have dedicated so much time and energy defending the existence, relevance, and efficacy of ‘their’ law.Google Scholar

5 Kennedy, David, A New World Order: Yesterday, Today, and Tomorrow, 4 Transnational Law & Contemporary Problems 329, 337 (1994).Google Scholar

6 See South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), 1966 I.C.J. 49 (July 18): “The Court is not a legislative body. Its duty is to apply the law as it finds it “ (emphasis added).Google Scholar

7 See FATU, at 544.Google Scholar

8 Something which Koskenniemi explicitly acknowledges; see FATU, at 569 and 615.Google Scholar

9 Conceding that ‘we, too, rule’ sees us emancipate ourselves from the ascending/descending dilemma. To conceive of international law as a platform on which to articulate political claims is to renounce its depiction as a neutral, objective and autonomous system. For if ‘objectivity’ no longer stands as the ultima ratio of legal theory, the ascending/descending dilemma simply disappears (and we are no longer caught in it).Google Scholar

10 This has led some commentators to call Koskenniemi's work ‘internal skepticism’; see Gerstenberg, Oliver, What International Law Should (Not) Become. A Comment on Koskenniemi, 1 European Journal of International Law 125, 126–7 (2005). Whilst I agree on the ‘internal’ part of it, I am personally reluctant to call FATU ‘skeptical’. Anybody who has had the chance to meet Koskenniemi knows that he is an enthusiast, a passionate and optimistic scholar. Surely, his critic of the discipline is uncompromising. But ‘qui aime bien châtie bien’, as the French saying goes. Koskenniemi's love of international law may be hard love, but it is, I believe, love nonetheless.Google Scholar

11 See Scobbie, Iain, “Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism”, 61British Yearbook of International Law 340 (1991). To a lesser extent, see Paulus, Andreas, “International Law After Postmodernism: Towards Renewal or Decline of International Law?” 14 Leiden Journal of International Law 727 (2001) and Purvis, Nigel, “Critical Legal Studies in Public International Law”, 32 Harvard International Law Journal 81, 120–124 (1991).Google Scholar

12 On the collapse of emancipation into regulation, see Boaventura De Sousa Santos, Toward a New Common Legal Sense 7–10 (2nd ed., 2002).Google Scholar

13 To a certain extent, teaching international law always involves synthesizing it and portraying it as a somewhat stable and coherent normative order.Google Scholar

14 Gilles Deleuze & Felix Guattari, L'anti-Œdipe – Capitalisme et Schizophrenie 158 (1972).Google Scholar

15 Rorty, Richard, Contingency, Irony, and Solidarity 9 (1989).Google Scholar