From Apology to Utopia: The Structure of International Legal Argument

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Overview

Drawing from a range of materials, Martti Koskenniemi demonstrates how international law becomes vulnerable to the contrasting criticisms of being either an irrelevant moralist Utopia or a manipulable façade for State interests. He examines the conflicts inherent in international law—sources, sovereignty, 'custom' and 'world order—and shows how legal discourse about such subjects can be described in terms of a small number of argumentative rules. Originally published in English in Finland in 1989, this reissue includes a newly written Epilogue by the author.

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Editorial Reviews

From the Publisher
"...I know no other reissues that have been awaited in international law in recent years with as much eagerness as this one."
-Akbar Rasulov, University of Glasgow, United Kingdom, The Law and Politics Book Review

"From Apology to Utopia is...an obligatory gateway to the understanding of the theoretical foundations of International Law and has, for that reason, entered the 'classics' hall of fame."
-Dr. Jean d'Aspremont, Global Law Books

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Product Details

  • ISBN-13: 9780521838061
  • Publisher: Cambridge University Press
  • Publication date: 2/28/2006
  • Pages: 704
  • Product dimensions: 5.98 (w) x 9.02 (h) x 1.69 (d)

Meet the Author

University of Helsinki.

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Read an Excerpt

Cambridge University Press
0521838061 - From Apology to Utopia - The Structure of International Legal Argument - by Martti Koskenniemi
Excerpt


Introduction

I

This is not only a book in international law. It is also an exercise in social theory and in political philosophy. One of the principal theses of the book is that it is neither useful nor ultimately possible to work with international law in abstraction from descriptive theories about the character of social life among States and normative views about the principles of justice which should govern international conduct. Indeed, many international lawyers have recognized that this is so. They have stressed the need to elaborate more fully on the social determinants of State conduct. And they have emphasized the law's instrumental role in fulfilling normative ideals of "world order". But they have had difficulty to integrate their descriptive and normative commitments into analytical studies about the content of the law. Typically, reflection on the "political foundations" of international law has been undertaken in the introductory or "methodological" sections of standard treatises. These have had only marginal - if any - consequence on the doctrinal elaborations of different areas of international law. Lawyers seem to have despaired over seeing their specific methodology and subject-matter vanish altogether if popular calls for sociological or political analyses are taken seriously. Ultimately, they believe, there is room for a specifically "legal" discourse between the sociological and the political - a law "properly so called", as Austin put it - and that this is the sphere in which lawyers must move if they wish to maintain their professional identity as something other than social or moral theorists.

Discussion on "theory" about international law has become a marginalized occupation. This has not always been so. During the "early" period writers such as Vitoria, Suarez or Grotius engaged in an argument about international law in which the concrete and the abstract, description and prescription were not distinguished from each other. Indeed, the fact that these aspects of discourse were so closely interwoven gives early writing its distinct flavour, its sense of being "other" than the more methodological, or "professional" styles of later scholarship. The standard of scholarship developed by post-enlightenment lawyers includes the methodological dictum of separating "theory" from "doctrine". Not that this would automatically undermine theory. But it directs scholars to maintain distance between what they say about world order or international justice and what they come up with as expositions of "valid" legal rules and principles.

But this distinction contains a potential for distortion. For once the analytical task of exposing valid norms is separated from reflection about the sociological or normative environment of those norms, the lawyer easily finds himself confined to work within the former if he wishes to retain his professional identity. Beyond "doctrine", there seems to exist no space for a specifically juristic discourse. The distinction theory/doctrine has come to denote just that conceptual differentiation which grounds the specificity of the legal enterprise. Once that distinction is made, the "proper sphere of jurisprudence" seems to have been exhaustively defined. Engaging in "theory" the lawyer seems to engage himself, on his own assumptions, with something other than law.

By itself, the distinction between "theory" and "doctrine" need not be particularly worrying. It is only when the former is experienced as non-legal, indeterminate and incompatible with our collective experience of international life that the move to modern pragmatism becomes understandable. Post-enlightenment lawyers have been concerned about "theory". They have discussed at length such issues as the "basis of obligation", the meaning of "sovereignty", the character of social life among States ("community/society"), for example. What has seemed puzzling, however, has been the pervasive character of the disagreements encountered within those topics. Theoretical discourse has repeatedly ended up in a series of opposing positions without finding a way to decide between or overcome them. "Naturalism" is constantly opposed with "positivism", "idealism" is opposed with "realism", "rules" with "processes" and so on. Whichever "theoretical" position one has attempted to establish, it has seemed both vulnerable to valid criticisms from a contrasting position and without determining consequence on how one should undertake one's doctrinal tasks. Typically, regardless of one's methodological premises, the doctrinal exposition one has come up with has seemed practically indistinguishable from the exposition of one's "theoretical" adversary. This has made theory itself seem suspect. The endless and seemingly inconsequential character of theoretical discourse has forced modern lawyers to make a virtue out of a necessity and turn towards an unreflective pragmatism, with the implicit assumption that the problems of theory are non-problems and that the sociological and normative issues of world order can be best treated by closely sticking to one's doctrinal task of analysing valid law.

The modern international lawyer has assumed that frustration about theory can be overcome by becoming doctrinal, or technical. But it is doubtful whether this strategy has worked out very well. For the lawyer is constantly faced with two disappointing experiences. In the first place, the doctrinal outcomes often seem irrelevant. In the practice of States and international organizations these are every day overridden by informal, political practices, agreements and understandings. If they are not overridden, this seems to be more a matter of compliance being politically useful than a result of the "legal" character of the outcomes or the methods whereby they were received. To explain that despite this experience, international law is in some sense "relevant" will, however, demand a "theoretical" discussion about how to disentangle law from other aspects of social life among States. And this would seem to involve precisely the sort of conceptual analysis from which will emerge the indeterminate classic controversies about the "nature" of law. In the second place, most doctrinal outcomes remain controversial. Anyone with some experience in doctrinal argument will soon develop a feeling of déjà-vu towards that argument. In crucial doctrinal areas, treaties, customary law, general principles, jus cogens and so on conflicting views are constantly presented as "correct" normative outcomes. Each general principle seems capable of being opposed with an equally valid counterprinciple. Moreover, these conflicting views and principles are very familiar and attempts to overcome the conflicts they entail seem to require returning to "theory" which, however, merely reproduces the conflicts at a higher level of abstraction. There is this dilemma: In order to avoid the problems of theory, the lawyer has retreated into doctrine. But doctrine constantly reproduces problems which seem capable of resolution only if one takes a theoretical position. And this will both threaten the lawyer's identity (for "theory" did not seem capable of discussion in any specifically juristic way) and reproduce the indeterminate discussion which to avoid the retreat to doctrine was made.

Now, when one starts to deal with an international legal problem, say a dispute about the rights of States, one very soon enters certain controlling assumptions which seem to demand solution before the problem can even be approached in some determinate way and a legal solution be suggested. Do these rights exist simply by virtue of statehood? Do they emerge from some higher normative code? Or are they merely legislative constructions? Conventional scholarship associates such assumptions alternatively with naturalism, positivism, idealism, realism and so on. But I shall suggest that such labels are not at all useful for attaining clarity on problems which have bothered modern international lawyers. They have to be disentangled. And this will entail going beyond what is usually considered a boundary between international law and social theory, on the one hand, and international law and political philosophy (or moral theory) on the other. One needs to explicate the assumptions about the present character of social life among States and on the desirable forms of such life which make it seem that one's doctrinal outcomes are justified even as they remain controversial. This does not mean that lawyers should become social theorists or political visionaries. But it does mean that without a better grasp of social theory and political principles lawyers will continue to be trapped in the prison-house of irrelevance. They will continue to have one foot in crude pragmatism and the other in indeterminate theorizing without understanding the relations between the two and why taking a position in either will immediately seem vulnerable to apparently justifiable criticisms.

II

Most of this book is devoted to disentanglement, that is, to an exposition and critical discussion of the assumptions which control modern discourse about international law. This will involve establishing a position beyond the standard dichotomy of "theory"/"doctrine". The argument is that in each theory there is a specific conception of normative doctrine involved and each normative doctrine necessarily assumes a theory. To see theory and doctrine united in this way I shall contend that all international legal discourse presents a unified structure of argument. Moreover, I shall argue that this structure reveals a particular conception about the relationship between social description and political prescription.

In a sense, the whole of international legal "talk" is an extended effort to solve certain problems created by a particular way of understanding the relationship between description and prescription, facts and norms in international life. My argument is that the persisting disputes within the realms of theory and doctrine result from the fact that these disputes bear a close relationship to controversial topics encountered beyond specifically "legal" disourses. The ideas of statehood, authority, legitimacy, obligation, consent, and so on which stand at the heart of international law are also hotly debated issues of social and political theory. In each of these realms the problems turn on the justifiability of assumptions about what the character of the present social world is and how it should be changed. It would be futile to assume that the assumptions which characterize modern social and political discourse are different, or separable from those which control legal discourse on these same matters. I have chosen to group those assumptions together under the label of the liberal theory of politics.

I have not met an international lawyer who would have said: "Look, here is my liberal theory of politics. The international law which I teach is based on that theory". (Though quite a few legal or political theorists have said it.) And yet, I know of no modern international lawyer who would not have accepted some central tenet in it. Obviously, this is not a matter of conscious political choice. I don't think it is a matter of choice at all - apart from the sense that one can, presumably, in some sense "choose" whether or not one wishes to become an international lawyer. The case appears that if one tries to engage in the sort of debate about international legality which international lawyers undertake, then one is bound to accept an international legal liberalism. Self-determination, independence, consent and, most notably, the idea of the Rule of Law, are all liberal themes. They create distinctly liberal problems: How to guarantee that States are not coerced by law imposed "from above"? How to maintain the objectivity of law-application? How to delimit off a "private" realm of sovereignty or domestic jurisdiction while allowing international action to enforce collective preferences or human rights? How to guarantee State "freedom" while providing the conditions for international "order"? These are all distinctly liberal problems, whose connection to domestic issues concerning the legitimation of social order against individual freedom appear evident.

It is difficult to understand "liberalism" as materially controlling because it does not accept for itself the status of a grand political theory. It claims to be unpolitical and is even hostile to politics. It claims to provide simply a framework within which substantive political choices can be made. But, as I shall attempt to show, it controls normative argument within international law in a manner which creates ultimately unacceptable material consequences for international life. This is not evident as it does this in a negative fashion, by ultimately being unable to coherently justify or criticize instances of State practice. Its claimed objectivity and formality hide from sight its controlling character. But while it cannot, on its own assumptions, consistently hold to its objective-formal character, it will have to resort to material principles which it will leave unjustified.

III

The approach followed here is one of "regressive analysis". I shall attempt to investigate discourse about international law by arguing back to the existence of certain conditions without which this discourse could not possess the kind of self-evidence for professional lawyers which it has. In other words, I shall argue, as it were, "backwards" from explicit arguments to their "deep-structure", the assumptions within which the problems which modern lawyers face, either in theory or in doctrine, are constituted.

The approach could also be labelled "deconstructive". By this contentious term I intend to refer less to certain metaphysical doctrines than a method, a general outlook towards analysing intellectual operations through which the social world appears to us in the way it does.1 I shall, for the most part, defer the more "radical" consequences which such an outlook might produce in order to remain as close as possible to the style and problématique which international lawyers will recognize as theirs. Such an approach may be briefly characterized by reference to its holistic, formalistic and critical aspects.

The holistic aspect of my approach relates to my effort to go beyond specific doctrines about the content of international law. I shall discuss the realms of theory and doctrine as a unified whole, both exemplifying a similar structure of argumentative oppositions and revealing the same constitutive assumptions. I shall view all legal argument in both theory and doctrine as a movement between a limited set of available argumentative positions and try to make explicit:

  1. what these positions are,
  2. which intellectual operations lead into them, and
  3. what it is that one needs to assume in order to believe that such positions and operations are justified.2

This can be clarified by first associating the method with that used in structural linguistics.

Linguistics makes the distinction between individual, historical speechacts and the system of differences within which the meaning of speech-acts is constituted. The level of speech-acts (or paroles, to use Saussurean terminology) is merely the surface appearence of language (langue) which is the socially constituted code in which paroles receive meaning. Structural linguistics explains meaning-generation by linking individual paroles to the determining langue. Each individual speech-act is understood as a transformation of some code in the underlying language. The aim is to make that code apparent. I shall treat international law in a similar way. For me, express international legal arguments, doctrines and "schools" are a kind of parole which refers back to an underlying set of assumptions, capable of being explicated as the langue or "deep-structure"3 of the law.4

In other words, the aim is to study particular legal arguments by attempting to see what links them together or keeps them separate and, in particular, what makes arguments within theory and doctrine constantly enter into oppositions which seem unresolvable on the argument's own premises. What is relevant is not so much what arguments happen to be chosen at some particular time or in some particular dispute but what rules govern the production of arguments and the linking of arguments together in such a familiar and a conventionally acceptable way and why it is that no definite resolution of standard problems has been attained.

I shall make much use of conceptual oppositions in this work. This strategy relates to a certain vision about the meaning of (legal) concepts. In structural linguistics, the meaning (signified, signifié) of an expression (signifier, signifiant) is established by a network of binary oppositions between it and all the other surrounding expressions in the underlying language. Meaning is not (as we commonsensically assume it to be) present in the expression itself. (The meaning of "tree" can also be attained by the French expression "arbre".) In a sense, expressions are like holes in a net. Each is empty in itself and has identity only through the strings which separate it from the neighbouring holes. The sense of an expression is not determined "from the inside" but by the formal differences which separate it, make it different from other expressions in that langue. Meaning is relational. Knowing a language - understanding the meaning of words - is to be capable of operating these differentiations.5

A deconstructive study applies this view of meaning in the discursive field it studies. It sees each discursive topic (e.g. "basis of obligation", "sovereignty", "nature of international law") to be constituted by a conceptual opposition (e.g. "naturalism"/"positivism", "idealism"/"realism", "rules"/"processes"). The opposition is what the topic (problématique) is about. The participants in the discourse proceed by attempting to establish the priority of one or the other of the opposing terms. The existence of disagreement, however, shows that this has not been successful. At that point, deconstructive criticism intervenes to show that disagreement persists because it is impossible to prioritize one term over the other.6 For although the participants believe that the terms are fundamentally opposing (that is, that their meanings are non-identical), they turn out to depend on each other. This will make the problématique appear as a false dilemma; the opposing positions turn out to be the same.

I believe this to be a fruitful way of understanding international legal argument as well.7 I shall derive the sense of particular doctrines, arguments, positions or rules exhaustively from the way in which they differentiate themselves from other, competing doctrines, arguments etc. This involves envisaging that legal argument proceeds by establishing a system of conceptual differentiations and using it in order to justify whatever doctrine, position or rule (i.e. whatever argument) one needs to justify. And I shall then attempt to show that the fact that discourse stops at points of familiar disagreement follows from its inability to uphold these differentiations consistently. We cannot make a preference between alternative arguments because they are not alternative at all; they rely on the correctness of each other.

Such a deconstructive study of legal argument (I make no claim for this to be the deconstructive approach; indeed, I recognize that many "deconstructivists" would not accept it8) is not restricted to a description, or taxonomy, of legal doctrines, arguments, positions or

© Cambridge University Press

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Table of Contents

1. Objectivity in international law: conventional dilemmas; 2. Doctrinal history: the liberal doctrine of politics and its effect on international law; 3. The structure of modern doctrines; 4. Sovereignty; 5. Sources; 6. Custom; 7. Variations of world order: the structure of international legal argument; 8. Beyond objectivism; Epilogue; Bibliography and table of cases.

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