1. Introduction
What is international legal scholarship about and for? What is the role of the international law scholar? What is the value of legal critique in the ‘era of global boiling’? Footnote 1 These are undoubtedly grand, complex, and fundamental questions that we can hardly even begin to untangle in this Editorial. Our aim is then not to provide definite answers, but rather to start a reflection on our responsibility as editors and legal scholars based in the Global North. Ultimately, with fresh editorial board members joining the International Legal Theory section at the Leiden Journal of International Law, we use this opportunity to muse on what sort of research we hope to curate for the section.
A central concern within certain international legal thought and practice has been the ultimate desire, if not goal, to positively change the world, or at least to theorize the possibility thereof. At the same time, the argument is by now familiar that legal practice and thinking can equally operate as arts of not changing the world: that international law also offers tools, discourses, and frameworks that stabilize and normalize practices that manufacture bodies, behaviors, and societies in oppressive manners. Footnote 2 Yet even the ambition to unmask such practices and processes often comes with the hope that this unmasking might allow their undoing. Thus, continuing the notion that legal research should have an impact upon the world.
It is easy to see where this desire for change comes from. However, within this notion also lies an embedded sense of solutionism, scientificism and heroic agency. These tenets moreover come with a flipside: feelings of disappointment, frustration, and disillusion when things do not change, or do not change enough, despite the intervention or activation of international legal thought, tools, processes, and actors. In part, theorizing international law comes down to exactly that: to navigating hopes and disappointments, to constantly challenging, reshaping, and reinventing the raisons d’être of the field, or to seeking new raisons d’être elsewhere, in other disciplines, other types of research materials, other modes of storytelling, other theories.
Far from ignoring the world-making effects of international legal thought and practice, and without denying the agency and responsibility of international lawyers, Footnote 3 this Editorial explores the following question: what would happen if we, international legal scholars, suspend the preoccupation to change the world? If, for a moment, we would move away from juggling binary motivations of pride/shame, hope/disappointment, and optimism/sadness and instead, or rather additionally, we would take seriously scholarship that is rooted in curiosity about the various lives of international legal thought and practice; in telling stories, from diverse – including unconventional – loci of international law beyond the familiar problem-solving script. With a growing and flourishing body of scholarship taking such an approach to studying international law, Footnote 4 it becomes increasingly important to account for what its premises and ambitions are.
Paradoxically, these approaches do not necessarily require giving up on hopes for a transformative potential of legal arguments. The normative position pursued in a spirit of multiplicity is one that is indeed not so much geared towards an outside world where a change through law should be the leitmotiv of the scholarly endeavor. Afterall, in the words of the lawyer and social activist Staughton Lynd, for those pursuing justice, law is at best ‘a shield, not a sword’. Footnote 5 Rather, the wish is to open-up the frame of research itself on what questions are considered possible to ask in research on international law, as well as what answers can be cultivated in response. Footnote 6
2. Legal researchers as agents of change?
The invitation – and provocation – to suspend the preoccupation with the world-changing potential of international law emerges from a broader concern that established modes of legal argument and critique are being outrun, paired with the observation that it may serve to create more space for exchange between different approaches to legal research. Footnote 7 At its root, the idea that international legal scholars should stick straightforwardly to the ambition to change the world is premised on the idea that the world can be constructed or known (in order to be fixed), and this mission is often carried through the prism of a single epistemology and particularistic regime of knowledge. As such, the world-making ambition of international legal scholarship reflects a modernist thinking of law as separated from and as applied to the world, Footnote 8 and, often, runs the risk of crystallizing rather similar modes of knowledge production. Western thought has traditionally leaned on the concepts of predictability and comprehensibility, asserting that the ability to transform the world derives from a holistic and deep understanding of it, akin to how one comprehends and manipulates physical phenomena and the natural world. Footnote 9 Suspending these modernist assumptions and gestures opens up the opportunity to look again and to get to know the world in different ways, through different lenses, in and on different terms. This does not equal a complete neglect of the world-making potential of international law. On the contrary, recognizing that international law shapes world hegemonies and discourses is a precondition to modestly realize that our role as international legal scholars cannot be (at least not exclusively) construed as a world-changing or world-fixing mission. Registering the world-shaping effects of international law is a precondition for feeling the need to suspend or even discontinue the typical regulatory moves of the international lawyer as a solutions provider, expert in world-futures, and efficient, effective, and comprehensive world-maker. Footnote 10
Within this characterization of modern international law as a rational and technical tool to regulate the world, it is perhaps unsurprising that ‘cohesion’ or ‘coherence’ take precedence over ‘ambivalence’ or ‘incoherence’. Hence, the legal researcher is often asked to develop a cohesive doctrinal, theoretical, and political understanding of the world. The subsequent risk, however, revolves around what is determined as the benchmark to assess coherence. And, around which perspectives will then usually be regarded as ‘ambivalent’. A glorification of coherence, and a rejection of ambivalence, (re)creates an untenable hierarchy between ‘good’ and ‘bad’ academic scholarship. For one, we would emphasize the value of meaningful exchange, of taking the other seriously, and of cherishing diversity in international legal scholarship. From a strictly methodological point of view, we would stress that because of the world’s complexity we need more than one theoretical formulation to make sense of what international law does and can do. This ‘theoretical pluralism’ can even be embraced at the individual level, so one may be ‘a democratic constructivist in the morning, a materialist skeptic of legal doctrine in the afternoon, and, perhaps, a more internal student of doctrine in the evening, without becoming any of these and, more important, without contradicting oneself in a pernicious way’. Footnote 11 But this approach becomes even more productive at the collective level, if one understands scholarship as a collective effort to grapple with international legality and a process of learning from each other. The praise of ‘coherence’ in legal scholarship, i.e., the attachment to demonstrating the most solid, reasonable and thus most convincing explanation for a decision or legal interpretation, largely assumes that there is only one truly correct answer to a question – and perhaps only a few ‘right’ questions to be asked, when we know this is often not the case. Footnote 12 This proposition is not only misguided but also offers very little prospect for stimulating exchanges.
Against this background emerges the sense of urgency to take a step back from the preoccupation with the world changing potential of international law and its fantasized role of lawyers as experts in world-futures. Pausing this solutionist imagery allows us to embrace and take seriously our role as storytellers: humbler but also potentially and ultimately more transformative. It is a call for modesty, which is simultaneously and, maybe indirectly, quite ambitious.
Feminist and critical race scholars are well aware of the productive tension between holding to a radical vision, while having to engage with the law’s ‘messy daily practice’. Footnote 13 This willingness ‘to inhabit contradictions, to eschew purity, and embrace the tensions’ is what characterizes, for instance, abolitionist theory and praxis. Footnote 14 As Mari Matsuda has also argued, ‘[t]he dissonance of combining deep criticism of law with an aspirational vision of law is part of the experience of people of color’. Footnote 15 The ‘double consciousness’ concept that Matsuda takes from Du Bois and uses in her work – of being inside and outside the law – seems quite a productive approach to navigate the tension between critique and renewal. Similarly, feminist international lawyers have drawn attention to the contradiction between working within the international legal order and moving beyond the constraints of that order to completely reimagine it. Footnote 16 Rather than seeking to reconcile this contradiction, they have suggested to embrace it, to work with it, to test it by looking at how it operates in practice. Footnote 17
All of us experience that tension in our professional and in our personal lives. After all, uncertainty as a key driver of research will always be at least slightly at odds with coherence. Moreover, our lives as legal scholars are constantly caught up in the tension between resistance and compliance, working within and against the law. Footnote 18 As international lawyers, we cannot escape that tension, or in Louis Amoore’s words, ‘there is no great refusal’. Footnote 19 Rather than achieving consistency or coherence, the issue is to choose which tensions to engage with in our personal and professional lives. Footnote 20 This approach, for instance, brings to the fore our personal condition as scholars working in academic institutions in the Global North – a privilege that comes with a responsibility. How should we approach the tension between the ‘radical’ potential of our research and the often very problematic legacy of our own academic institutions, if not our own lives?
Tellingly, by contrast, the idea of international law as a problem-solving technology is often pictured in the singular form. As a consequence of the ambition of agency, or of controlling and acting upon ‘the reality’, the simplification of formulating the world in the singular form is almost inevitable. Not only this wording, but also the very objective to preserve international legal scholarship’s world changing ambitions, annihilates the possibility to invent or imagine different manners to exist within worlds in the plural. If one would go even a step further, it becomes possible to point out such a way of thinking is akin to what has permitted the West to colonize the world and to what continues to produce the Global South(s) in ways that limit, essentialize or erase it. Footnote 21
3. So, what is the sort of research we hope to curate for the International Legal Theory Section of the LJIL?
What we would like to stand for, is a diverse legal theoretical landscape consisting of conceptual, doctrinal, or political positions complemented with creative, intuitive, and reflexive approaches. As the Leiden Journal of International Law’s theory section, we seek to look at and beyond the obvious, to dig deeper and in different directions, to confront ourselves with the boundaries of the discipline and to see how much they bend, fade, soften, evaporate, burst, hold, harden, repel. It is important to stress that the intention to showcase research as experiments does not exclude any type of approach to the study of international legal thought and practice. Whatever the theoretical framework or methodological approach adopted, a research project conceived as a discovery journey always carries a degree of unknown. The story told might not always end somewhere, or at least not in some shape recognized as ‘useful’. This is not to say such research is solely self-serving or that international legal scholars should not strive for a certain kind of ‘impact’. Rather it is to recognize that academic research is always, even within the ‘exact sciences’, a (luxurious?) space of being able to test out, to try.
Though experimenting, such research is not ungrounded. There is by now a burgeoning body of scholarship in international law paying tribute to a myriad of encounters by multiplying the accounts of embodied experiences and aggregating the traces of the various functions performed by law. They create space for the expansion of (legal) imaginaries. They show that taking seriously the crafting of (counter-)narratives is not void of codes or methods. That this body of scholarship has made its way into the ‘mainstream’ of scholarship allows us to comfortably formulate this call to suspend the grandiose aspiration to change the world through international legal scholarship. The possibilities, then, are endless. We certainly do not demand a fixed or particularist approach or some specified schools or traditions. We welcome a multiverse of international legal scholarship; doctrinal, empirical, ambivalent, cohesive, creative, subversive. Embracing multiplicity to us means an openness to all of that, and more importantly, to ‘Other’ ways of knowing worlds.
