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From Apology to Utopia’s Conditions of Possibility

Published online by Cambridge University Press:  28 July 2016

JOHN HASKELL
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Abstract

Martti Koskenniemi's From Apology to Utopia is (rightly) considered a classic in international legal theory. The study tracks the oscillation of international legal argument over hundreds of years to reconcile seeming incongruencies: legal reasoning does not provide determinacy, but it brings weighted direction to political conflict; legal categories are amorphous, yet also an autonomous field of study. Though not commonly engaged, the methodological and theoretical posture of the book is significantly informed by a theory of history. This article focuses on this historical element within the text as a means to analyze some of its central claims and situate it within a broader sociology of knowledge production particular to late twentieth century legal academia.

Keywords

international legal historyinternational legal theoryMartti Koskenniemipolitical economysociology of law
Type
INTERNATIONAL LEGAL THEORY: Symposium on Martti Koskenniemi's From Apology to Utopia
Information
Leiden Journal of International Law , Volume 29 , Issue 3 , September 2016 , pp. 667 - 676
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

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References

1 Though the text was originally published in 1989, this article will be focusing on the 2006 reprint, which includes an epilogue. See M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).

2 The position here is not that FATU represents some ‘false ideology’ that may be uncovered to demonstrate the ‘real’ situation, or that FATU is missing important ‘materialist’ or ‘from below’ considerations which must be read back into the narrative, but rather what Louis Althusser explained as a ‘symptomatic’ reading. See L. Althusser and E. Balibar, Reading Capital (2009), 19–30.

3 Commentators (and Koskenniemi himself) have suggested his subsequent ‘turn to history’ is an answer to the limits of FATU. The thesis in this article should be distinguished, and even read to contest this claim, on two counts. First, there are significant methodological differences between historical sociology and intellectual history, and between types of intellectual histories. My sense is that the intellectual history chosen by Koskenniemi and many of his admirers is part of a distinct tradition that is prone to over-determination, or domestication, of particular individuals and events – dangers that other strands of intellectual history, especially those drawing on historical sociology, may adequately counter. See e.g., Wilder, G., ‘From Optic to Topic: The Foreclosure Effect of Historiographic Turns’, (2012) 117 (3) The American Historical Review 723 CrossRefGoogle Scholar (incorporating discourse analysis and socio-institutional history). Second, the argument here is not that FATU lacks a historical element that later works seek to supplement, but that the ‘historical’ is deeply engrained in FATU, at once submerged and prodding the argument forward, and which remains largely unacknowledged to the extent that subsequent historical work by Koskenniemi further obfuscates rather than engages this unsaid dynamic in the text. For an example of this style of analysis that looks at what the text does not say and why, see e.g., P. Macherey, A Theory of Literary Production (2006).

4 See Koskenniemi, supra note 1, at 77.

5 Ibid., at 107–8, 156–8.

6 Ibid., at 58–67.

7 For a brief synopsis of this approach, see Koskenniemi, supra note 1, at 87.

8 A significant body of Koskenniemi's work after FATU attacks this tendency, especially as it has manifest itself in American-oriented international relations scholarship. See M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001), 413–508 (hereafter referred to as GCofN). For an example of this brand of scholarship (largely indebted to US oriented law and economics and neo-institutionalist scholarship), see Dunoff, J. and Pollack, M. (eds.), Interdisciplinary Perspectives on International Law and International Relations (2012)CrossRefGoogle Scholar. For a critical perspective on this depiction of international relations studies, see Rajkovic, N., ‘Rules, Lawyering and the Politics of Legality: Critical Sociology and International Law's Rule’, (2014) 27 (2) LJIL 331 CrossRefGoogle Scholar.

9 As David Kennedy observes, it is ironic that while this general proposition is regularly rehearsed by subsequent legal scholars, there is little serious engagement with its analytics. See Kennedy, D., ‘The Last Treatise: Project and Person: Reflections on Martti Koskenniemi's From Apology to Utopia’, (2006) 7 (12) German Law Journal 982 Google Scholar, at 991. For instance, what ‘triggers’ operate to make a particular position seem neutral or to persuasively swing a position another way? Or, how does this oscillation function within various narrative emplotments, such as tragedy? Or, can this apology/utopia tension be equated across legal regimes, or is it particular to the chosen examples in the book? And so forth. Notable exceptions are Desautels-Stein, J., ‘ From Apology to Utopia's Point of Attack’, (2016) 29 LJIL 677–97CrossRefGoogle Scholar and Rasulov, A., ‘ From Apology to Utopia and the Inner Life of International Law’, (2016) 29 LJIL 641–66CrossRefGoogle Scholar.

10 See Koskenniemi, supra note 1, at 533–4. Koskenniemi's emphasis on the importance of technique in international law is itself in keeping with neo-institutionalist international relations scholarship prevalent since the 1990s; where it differs is his faith that the very practice of good legal (theoretical) argument carries a progressive historical impetus within the discipline and more generally in global political affairs. The gentle civilizing force of international law is alive in FATU, giving argumentation its sense of momentum. This force is itself the outcome of legal practice, which is the art of persuasion, or to put in economic terms: of exchange. An exchange theory of international law is fundamentally different, in my mind, from what might be occasioned by a credit/debt theory of economics and law. See M. Lazzarato, The Making of the Indebted Man (2012).

11 Ibid., at 540–7 (what he describes as a ‘conversant culture’).

12 Ibid., at 4–12, 521–5.

13 Ibid., at 14, 550–8. Here, Koskenniemi seems deeply influenced by later Wittgenstein. For a survey of this relationship, see Carty, A., ‘Language Games of International Law: Koskenniemi as the Discipline's Wittgenstein’, (2012) 13 Melbourne Journal of International Law 1 Google Scholar.

14 D. Kennedy, International Legal Structures (1987). This should not imply that the two texts rely on the same set of intellectual inheritances.

15 For a critical elaboration of these tendencies, see Rasulov, A., ‘What is Critique? Towards a Sociology of Disciplinary Heterodoxy in Contemporary International Law’, in d'Aspremont, J. and Nollkaemper, A. (eds.), International Law as a Profession (forthcoming 2016)Google Scholar.

16 For a discussion of this intellectual trend, particularly in relation to Critical Legal Studies and Critical Legal Histories, see Gordon, R., ‘Of Mandarins, Legal Consciousness, and the Cultural Turn in US Legal History’, (2012) 36 Law and Social Inquiry 167 Google Scholar; see also Gordon, R., ‘Critical Legal Histories Revisited: A Response’, (2012) 36 Law and Social Inquiry 200 CrossRefGoogle Scholar. There is a predilection within ‘non-mainstream’ international legal scholarship to stress the legal embeddedness of political interests as a significant observation that marks them out from their more conventional peers. It bears a curious similarity, however, to conservative twentieth century economic theory that pointed to the political-legal character of economic fields and interests (e.g., the ordo-liberal principle that markets were not ‘natural’). For a fascinating, albeit economist-oriented explanation of the relationship between the ‘private’ and ‘public’ functions of governance, see R. Wray, Modern Money Theory: A Primer on Macroeconomics for Sovereign Monetary Systems (2012).

17 For an excellent survey of this intellectual development, see E. Clark, History, Theory, Text: Historians and the Linguistic Turn (2004). For partial accounts of how this trend came at the expense of more left-oriented structuralist traditions, see F. Dosse, History of Structuralism: The Sign Sets, 1967 – Present (1998). This shift, however, was less visible in histories by political economists; but interestingly, this disciplinary exception is largely ignored by international legal historians, despite the increasing importance within the discipline towards the historical relationship between international law and political economy. For an example of this style of structuralism within political economy, see e.g., G. Arrighi, Adam Smith in Beijing: Lineages of the 21st Century (2009).

18 See Tomlins, C., ‘What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's Critical Legal Histories’, (2012) 36 Law and Social Inquiry 155 CrossRefGoogle Scholar.

19 For an insightful study into this managerial ethos that increasingly came to capture Western-oriented institutions from the 1960s onward, see L. Boltanski and E. Chiapello, The New Spirit of Capitalism (2006).

20 For an interesting general discussion of the changing institutional configuration and politics of knowledge production, see D. Rodgers, Age of Fracture (2010).

21 See Kennedy, supra note 9, at 987–9.

22 Kennedy, D., ‘Losing Faith in the Secular: Law, Religion and the Culture of International Governance’, in Janis, M. and Evans, C. (eds.), Religion and International Law (1999), 309 Google Scholar at 312. The position is analogous to Feuerbach's argument to prove the importance of Christian virtue in the face of mounting skepticism: it is exactly the experience of feeling that a value is undermined or devalued that proves its existence, because if it did not exist, then there would be no sense of its loss. Doubt and failure was its surest proof. For an extended discussion of this theological mode of logic in Feuerbach and contemporary international legal theory, see Haskell, J.D., ‘The Scandal of Disenchantment: Blind Spots in Modern Anglo-American Approaches to the History and Politics of International Law’, (2013) 44 University of Memphis Law Review 39 Google Scholar.

23 Rasulov, A., ‘Writing About Empire: Remarks on the Logic of a Discourse’, (2010) 23 (2) LJIL 449 CrossRefGoogle Scholar, at 464–70. We could extend this contextual style of awareness to Koskenniemi's GCofN. The move to history was not so much an intellectual grasping of deficiencies in FATU, but a response to new conditions of reproduction within the European academic market: the necessity of creating an ‘European’ legacy to tie together the already fracturing European political landscape (e.g., economic disenfranchisement, ethnic unrest, brewing inter-national conflictual agendas), the sense of displacement over the intellectual authority of global governance (e.g., asserting the European tradition in the face of competing geographic localities), that funding was largely through ‘public’ bodies as opposed to soliciting private donors (e.g., Kennedy seeking funds from private financial institutions versus Koskenniemi looking to public European funding grants), and to regain control (or more charitably, model ‘best practices’) over the sudden democratization of archival resources due to technological advances, especially related to the internet.

24 The tendency to posit something like ‘capitalism’, ‘class’, or ‘labor’ as a coherent ‘thing’ is a frustrating tendency within left-oriented scholarship over the last decade, and which seems strikingly similar to the late twentieth century liberal appeals to ‘cultures’, ‘subjectivities’, ‘individuals’, and so forth. The attempt to escape these generalizations - through the claim of ultimate radical indeterminacy to any foundation and the eternal internal oscillation of professional discourse while simultaneously seeking to functionally differentiate institutional conditions and tendencies that lead to relatively predictable results and types of production (whether people, things, or more general ‘outcomes’) – is finding new life in recent years across a number of disciplines; for example, see Kessler, O. and Guillaume, X., ‘Everyday practices of international relations: people in organizations’, (2012) 15 (1) Journal of International Relations and Development 110 CrossRefGoogle Scholar. At the same time, there is the danger that these shifts towards curing conceptual abstraction play into the various brands of neo-institutionalism so popular over the last few decades.

25 For an excellent critique of how ‘transcendental’ arguments undergird ‘concrete’ studies, see L. Althusser, For Marx (trans. Ben Brewster, 2006), 87–128, 219–48. For investigation into how discrete facts are domesticated into historical spatial and temporal groupings, see Davis, K., Periodization and Sovereignty: How Ideas of Feudalism and Secularization Govern the Politics of Time (2008)CrossRefGoogle Scholar; see also Gordon, P.E., ‘Contextualism and Criticism in the History of Ideas’, in McMahon, D.M. and Moyn, S. (eds.), Rethinking Modern European Intellectual History (2013), 32 Google Scholar.

26 For an analysis of this autonomized and creative subject that may escape their conditions is manufactured, see Singh, S., ‘Koskenniemi's Images of the International Lawyer’, (2016) 29 LJIL 699–726 CrossRefGoogle Scholar. This orientation within public international law is a hallmark of the twentieth century move by its authors (e.g., Lauterpacht, Kelsen) to incorporate a distinctly ‘conservative’ set of private law concepts into the underlying logic of the field. See M. García-Salmones Rovira, The Project of Positivism in International Law (2013). The tendency among liberal and left-oriented legal scholars to emphasize the ‘political’ character of the ‘private’ is ironic to the extent that it misses the extent that the ‘political’ aspects of law (e.g., its cosmopolitan sensibility, its institutional character) are modeled on ‘private’ market models.

27 P. Burke, A Social History of Knowledge: From Gutenberg to Diderot (2000). To be clear, the argument is not that we need a better understanding of subjects making history, but of the processes that facilitate these subjects and events and our capacity to discern what enters into memory.

28 C. Tilly, Coercion, Capital and European States: AD 990-1990 (1990).

29 Indeed, the Protestant Reformation was not so much a spiritual/intellectual result of radical religious thought or indignation to political hierarchies as it was the outcome of the over-production of printed literature and the debate over the proper scope of dissemination and use. See Burke, supra note 27, at 116–48.

30 For one of the more compelling (and conflicted) polemics for international legal formality, see J. d'Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (2011).

31 For an example in this direction, see P. Mirowski, Machine Dreams: Economics Becomes a Cyborg Science (2001); see also N. Fligstein and D. McAdam, A Theory of Fields (2012).