Vol. 16 No.8 (August, 2006) pp.583-591

FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT, by Martti Koskenniemi. (Reissue with New Epilogue). Cambridge and New York: Cambridge University Press, 2006. 704pp. Hardback. £60.00/$110.00 ISBN: 0521838061. Paper. £27.99/$50.00 ISBN: 0521546966.  E-book format.  $40.00.  ISBN: 0511138008.

Reviewed by Akbar Rasulov, School of Law, University of Glasgow, United Kingdom. Email: a.rasulov [at] law.gla.ac.uk

GENERAL REMARKS

I should confess I do not know many books published by Lakimiesliiton Kustannus, but I am sure I know which was their biggest all-time success. It was a dark-blue paperback of about 600 pages, with no pictures on the front cover and no succession of eye-catching endorsement blurbs on the back – a very simple design – published just before the end of the Cold War. I know it because every serious international law library in the world has probably tried to get a copy of it, and because the new Cambridge University Press volume that lies on my desk today – an attempt, finally, to meet that demand – is not a second edition, but “only” a reissue with a new epilogue, and I know no other reissues that have been awaited in international law in recent years with as much eagerness as this one.

The original edition of FROM APOLOGY TO UTOPIA (FATU), by Martti Koskenniemi, was published in 1989. I do not know what was going through the minds of the Lakimiesliiton Kustannus directors when they signed the contract for it, but I am glad they did it. International law has been a more interesting field in which to work and international law thinking a more interesting job to do because of that book.

None of them, probably, had expected it to become that big in the end – within a decade of its release, FATU turned into one of the most talked about books on international law, a compulsory point of reference for everyone writing about the nature of the international legal order, an obligatory item on every serious international lawyer’s reading list, and the most famous CLS piece about the international law discourse ever – but they still must have been quite excited about it when they saw it for the first time. In hindsight, it probably had all the signs of a potential instant classic about it already then: a simple but ingenious thesis, a sufficiently innovative (but not too esoteric to become inaccessible to the uninitiated reader) approach, a finely balanced combination of the traditional doctrinal material and a provocative polemic, a catchy title, an easy to remember set of metaphors, a remarkably confident tone.

But the timing of its release, of course, was still far from ideal. The USSR had just withdrawn from Afghanistan. The Berlin Wall was about to come down. The Cold War was over. Fukuyama’s history started to end, and with it, inevitably, most of the truths international lawyers had learned to take for granted over the previous three [*584] decades. The discipline was entering a period of accelerated crisis. Schools and doctrines emerged and disappeared in a matter of months. Traditions that only a few years earlier had looked completely unassailable disintegrated before the eyes of their followers quicker than they knew how to reinvent themselves. The tide of history moved fast, and many good pieces of scholarship got drowned in it. FATU survived, and I can think of very few international law books that deserve this outcome as unquestionably.

I can also think of very few international law books that have been so frequently misread, denounced, or even defamed. Perhaps that says something about the degree of the passionate response FATU evoked in its audiences or the state of international law’s collective unconscious and the ideological content of its professional mythology.

Whether its author planned it or not, FATU managed to hit a very raw nerve in the international law profession. The “end of history” international lawyers did not take to its message easily. Contrary to the common (mis)perception, however, that message was not that international law was an entirely hopeless enterprise. FATU never said that international law did not exist or that it was only a self-enclosed illusion. It is not a work in postmodern deconstruction, let alone a manifesto of professional nihilism (there is far more Frankfurt School and Lévi-Strauss behind it than there is Lyotard or Derrida). What it did say was that the international law profession cannot be expected to perform a lot of those functions which, in the traditional view, it is normally expected to perform. International law is a structure of argument patterns, it said. Knowing how to put together an argument is not a substitute for knowing what to put in it, or, indeed, for knowing what is the right thing to say in the first place.

A good-faith gift from a practising international lawyer to his profession, FATU was never supposed to become a grand statement of legal philosophy. It was, and still is, “only” an amazingly candid – and equally insightful – attempt to understand the basic challenges facing the international law community in its day-to-day practice; to identify the roots of its pervasive sense of alienation; to show that the constant anxieties it faces in its professional life are not a sign of some unique curse or blessing, but part and parcel of the universal human predicament. Certainly, if the intensity with which its message was rejected by its addressees should be seen as a proof that its original intention had somehow misfired (which is not, of course, at all a foregone conclusion), then it probably was not a perfect attempt. But it still became one of the most significant contributions to international legal thought since the first wave of decolonization hit the shores of the UN-led world order, if not earlier.

Every 600-page narrative can be shown to have its flaws. FATU is not an exception in this regard. Despite the breadth of its object of investigation, it has some very noticeable lacunae, the international law of armed conflict and international human rights law being the two prime examples (and Koskenniemi will certainly be the first person to [*585] recognize that, p.14).  (It is not clear what exactly would have changed in FATU’s argument if these lacunae had been covered, but, as some commentators have suggested, perhaps, there would have been less conviction in the certainty of its tone (Kennedy 1990, at 391).  But when all is said and done, it is still one of the most important monuments of modern international law scholarship and C.U.P. must be sincerely commended for its decision to republish it. Few books have served its audiences as well as FATU.

FATU’S ARGUMENT

The key to understanding the structure of modern international law discourse, explains Koskenniemi, lies in the methodological separation effected by the international law profession between two hypostatized entities called “doctrine” and “theory” and its ideological relevance for the construction of international law’s professional identity. To put it simply: in the traditional view, good international lawyers do doctrine; bad international lawyers wallow in theory. “Doctrine” is something that is functional, concrete, sensible, and definite. “Theory” is something that is vague, highfalutin, abstract, and indeterminate. For every natural law theory, there is a positivist rival; for every “law is a social contract” thesis, there is a “law is the will of the dominant group” counterpart, and so on and so forth. International law, meanwhile, is a through-and-through practical discourse aiming to be objectively different from both the self-serving spin of power politics and the transcendental nonsense of the moral discourse (pp.24-28). Consequently, the traditional view concludes, beyond “doctrine,” there is no space for the international law project. To protect their basic professional identity, international lawyers must, thus, at all costs stay away from theory.

In a nutshell, this is the summary of the traditional strategy for international law’s professional self-determination, says Koskenniemi. The problem with it, unfortunately, is that it does not really work. First, there is the problem of (explaining) compliance. On the one hand, in the absence of a centralized political order, States and other members of the international community quite frequently tend to ignore existing international legal regimes. On the other hand, when they do not do so, it still often seems to be the case that what motivates them to comply is more a consideration of political expediency than a sense of legal obligation. A question immediately arises: how can one tell a juridically-compelled behaviour from a politically-compelled behaviour? However one goes about this, one must, it seems, at some point turn to a theoretical argument; but is that not exactly what one is never supposed to do as a good lawyer? Quite separately from that, there is also the problem of the doctrine’s inherent indeterminacy. No one who has practised international law at sufficient length, observes Koskenniemi, will fail to recognize that “most doctrinal outcomes remain controversial” (p.3) and not simply because “different people tend to mean different things even when they use the same language” (p.62). The reason is far more profound than that. Every valid [*586] doctrinal argument seems capable of being opposed with an equally valid counterargument. For every pacta sunt servanda principle there is a rebus sic stantibus counter-principle, for every “effective control” test there is a “legitimacy of government” counter-test, for every “non-retroactivity of intertemporal law” rule there is a “living law” doctrine, and thus ad infinitum.

In the absence of a single locus of sovereignty, the only plausible way in which international lawyers can resolve such conflicts in an objective manner would seem to be by invoking a higher-level principle: “the constitutional framework of the world order,” “the general principles of international law,” “the base values of human dignity,” and so on. The problem with that solution, however, explains Koskenniemi, is that for every higher-level principle a competent lawyer can also find an equally valid counter-principle. The spectre of the vicious circle quickly starts to emerge (as does that of Zeno’s paradox), and so a question eventually arises: why is international law so ubiquitously plagued by this vicious-circularity?

Koskenniemi’s answer to that is: mainly and in the first place because international law is essentially liberal in its origins. The traditional themes addressed by the modern international law project, from the self-determination of peoples to the rule of law in international affairs, are all liberal themes (p.5). Liberal themes tend to bring with them liberal problematics. The theoretical problematics of liberalism, however, as Roberto Unger has shown, are all fundamentally self-contradictory. Having borrowed its metaphysical apparatus from liberalism, the modern international law project, thus, “from the very start” was doomed to stumble into an endless sequence of vicious circles.

What makes the situation even more aggravated, however, is the fact that liberalism “does not accept for itself the status of a grand political theory. It claims to be unpolitical and is even hostile to politics” (p.5). Locked in a state of permanent denial, the international law tradition is constantly precluded from even being able to recognize its contradictions. As Marcuse would say, however, without an awareness of one’s servitude, how could one ever start planning one’s liberation?

The traditional way of thinking about international law “is singularly useless” for addressing the challenges raised by the practical experiences of the international law profession. A new frame of reference needs to be established, a new mode of analysis needs to be found, and Koskenniemi’s own preferences on that front are rather unequivocal.

The two main instruments which FATU suggests international lawyers should adopt in their self-reflective practices are what Koskenniemi calls “regressive analysis” (which is essentially another name for internal critique) and “native-speaker competence reconstruction.” Side by side with the classical critical project of searching for the latent doxic assumptions that enable the constitution of the modern international law [*587] discourse, one thus finds in FATU a very perceptible trace of the structuralist linguistic tradition (p.11).

The international law project, as portrayed in FATU, is essentially an argument-constructing apparatus governed by a langue-like structure. The structure in itself is completely historical – “[i]t has neither descended from heaven to determine what we can see in international life, nor emerged as an aprioristic construction of an autonomous individual” – but its social function is profoundly ideological. On the one hand, it has imposed on the international law profession a very particular frame of thinking about the life of the international society, replete with its blind spots and black holes. On the other hand, it has served to deny the essentially political nature of the international law project, strengthen the sense of international law’s objective identity (which it shapes in the likeness of the liberal ideal of legal formality), and, because it is inherently self-contradictory, furnish the means whereby every valid legal argument can be always criticized as political and subjective. The way in which the latter condition is produced is then what forms the immediate object of reference for the bulk of FATU’s narrative.

“There are two ways of arguing about order and obligation in international affairs,” observes Koskenniemi (p.59). There are also two ways of criticizing the international law doctrine (p.23). The arguments and the criticisms are as inseparable as the two sides of the same coin. The ultimate reason for this lies in liberalism’s schizophrenic insistence that international law must be both grounded in the free-willed consent of sovereign States (ascending pattern of justification) and binding on every individual State despite its immediate will (descending pattern of justification). If it fails on the former front, it will become a form of natural morality. If it fails on the latter front, it will turn into a mere front for power politics. The problem with this requirement, of course, is that there is no way, in the end, to satisfy it (pp.59-69).

From the ascending perspective, every trace of the descending pattern of justification is a sign of a utopian subjectivism because it rests on an aprioristic assumption about what is right, disconnected from the concrete reality of positive lawmaking. From the descending perspective, every ascending argument is likewise a sign of subjectivism (apology) because it privileges State will (i.e. subjective interests) over the objective normative code. Because the system sanctions the use of both perspectives, every proposed solution can be validly criticized as either utopian or apologist. Having undermined their opponents’ argument, however, the critics, once forced to defend themselves, can fare no better than those they criticized (p.65). As a result, the only way in which the discourse of international law can survive as a whole is by constantly oscillating between the two ends, moving “from emphasizing concreteness to emphasizing normativity and vice versa without being able to establish itself permanently in either position” (65). (Establishing some form of a majoritarian decision-making scheme could seem at the first sight a generally [*588] satisfactory solution to this problem. According to Koskenniemi, however, it would not survive the attack of an ascending critic (pp.63-64.))

In practical terms, however, what this means is that international law is intrinsically incapable of providing fully convincing substantive solutions to those problems with which it deals. At best, it can furnish a structure for making viable arguments, but never for producing foolproof conclusions. If international lawyers and their friends should then wish for such conclusions to be made, it follows, they must accept that the final act of resolution will always be an act of extralegal choice.

A different way of putting this is to say: international lawyers and their friends must stop hiding behind the façade of the legal argument and learn to take political stances, because, in fact, that is already what they have always been doing. It is just so, for their politics has been mostly brushed under the carpet and pathologically pretended away. But every time the international legal argument runs into an irresolvable contradiction between apology and utopia, it immediately comes out. The lawyers frown on it, push it into the shadows, and painstakingly paper over it, but it still keeps coming back in a myriad of little symptoms, as every act of judgment gets its sense of closure and substantiation from an unreflective recourse to contextual equity and an undefined sense of justice (pp.554-561). The only candid and professional thing to do, concludes Koskenniemi against this background, is then to face up to this ineradicable fact, accept it, and learn to live with it while steering clear of any sweeping politicization of the legal process (p.555).

This last suggestion is, probably, the weakest point in an otherwise very cogent argument. If politicization of legal argument is as inevitable as FATU claims it to be, why should international lawyers refrain from “big” political acts and stick to small-scale “contextual justice”? There seems to be no immediately logical reason for that conclusion, especially given that it does not guarantee “an open (uncoerced) discussion” (p.545; cf. Hale 1943). Or, for that matter, for the suggestion that “uncertainty and choice are an ineradicable part of [international lawyer’s] practice” “may be less a cause for despair than for hope” (p.515). Antinomianism, after all, has been traditionally associated not only with the bliss of epiphany but also with “fear and trembling” (Kennedy 2001, at 1158-1168).

WHERE TO FROM HERE? A CRITICAL OPENING

Predictably, the FATU argument was not well received in some circles. Some international lawyers saw in it an advance symptom of the postmodern nihilist corrosion. Others treated its commitment to rigor and coherence as a sign of wicked sabotage parading as false naïveté. In reality, the situation is probably far less dramatic, though, admittedly, not as simple as Koskenniemi’s language at times might suggest. For all his present insistence that his critics may have bent the stick too far – and a lot of them certainly did [*589] – by misreading his indeterminacy argument as a simple variation of the semantic truism that meaning is always constructed (pp.590-591), there is also a certain sense that he, too, may have bent the stick a touch too strongly.

Take, for instance, the point about interpretation. In the conviction appeal decision in the TADIC case, the Yugoslav tribunal opted for the broader interpretation of the concept of crimes against humanity, citing the guidance of the humanitarian considerations enshrined in its statute, instead of following the more traditional principle of criminal law in dubio pro reo, in which case it would have had to settle for a narrower meaning probably allowing the defendant not to be convicted on that count. “Again, the point is not,” explains Koskenniemi reflecting on the decision, “that this was ‘wrong’ or ‘political’ – the opposite interpretation would have been no less so – but that interpretative choices remain just that – choices” (p.585). In other words, here as elsewhere, the structure of the international legal argument allowed either option to be taken and thus, by implication, it supported neither of them.

But, stepping back from the aridity of the logical sequence, one may ask: was this really what happened in the dialectical fabric of the TADIC argument? Of course, in purely formal terms, both interpretative decisions – humanitarian considerations v. in dubio pro reo – could be described as “choices.” But then so could also the signing of a contract under duress or a full capitulation at the end of a war. The mere presence of an ontological possibility of choice is not in itself dispositive of the course of legal practice (Hale 1943).

To be sure, the point here is not to dispute FATU’s basic proposition that the logic of the international legal argument is essentially dual. It very obviously is. But – and, as his post-FATU works show, Koskenniemi will be the first to recognize this (p.610) – it is certainly not all that dual (or only dual), and this fact deserves to be acknowledged too, and not just under the rubric of “bias” (pp.606-607).

Given the state of modern international legal thought at the time of its original appearance, FATU’s implicit metaphor that the international legal argument was essentially like a coin (there is always another side to a coin and neither side is any more “privileged” than the other) was certainly immensely progressive. It helped reopen the blocked avenues of stagnating dogma, demystify a plethora of conventional wisdoms, and launch a series of new tremendously productive investigations. No one will be able to deny that. But every metaphor has a limited service area. Perhaps, it is time now to begin acknowledging – in order to sponsor even more critical legal inquiries – that the international legal argument almost never works like a coin; that it acts more like a buttered toast: released in a free fall, it may flip over several times, but it will almost always land the same side down. (And the question must then become: why?) Any suggestion that ‘that is just what toasts do’ would give toasts “way too much credit” (Kennedy 2001, at 1185). [*590]

Had the Yugoslav tribunal chosen the in dubio pro reo argument, it seems safe to predict, there would have been a great deal less discontent in the ranks of the legal profession. Of course, there would have still been a few voices here and there to point out the availability of the humanitarian considerations option and bemoan the court’s excessive traditionalism/formalism/conservatism, but the majority of the profession would have probably found the court’s choice significantly more acceptable, not least because it would have been in line with their expectations about the “buttered toast.”

Would recognizing this general probability in any way undo the court’s interpretative decision as an act of “politics” or “choice”? Obviously not. But it would certainly highlight the state of internal differentiation within those two instances which Koskenniemi marks with these words, and which on the surface of FATU’s argument sometimes appear as essentially homogeneous and thus outside the ambit of structural analysis.

Not all politics are the same. Not all choices are equally “choiceful.” Not all legal arguments come across as professionally competent or valid as their counter-arguments. It does not make much sense today for a critical structuralist to continue suspending this fact in a Husserlian epoche, even though, probably, it may have been indispensable when the langue of international law had to be mapped for the first time. But if we should really understand the structure of the international legal argument in its plenitude – if we are, that is, to fulfill the critical promise of FATU and its brand of archaeological inquiry – it seems, we must begin now to address the latent logic responsible for these differences as structuralists, for none of them are purely contingent or “only” a product of “ideological” or “institutional bias,” and their underlying mechanics is also an integral part of the international legal argument and, thus, a necessary object of the structuralist analysis.

None of this at the end of the day, however, should be taken as a sign that FATU’s progressive significance in the context of modern international legal thought is diminishing, only an indication that the shoulders of giants are always there to be climbed on, not just looked at. And one could certainly do far worse than choose FATU as that shoulder or thank Martti Koskenniemi for supplying it.

REFERENCES:

Fukuyama, Francis.  1992. END OF HISTORY AND THE LAST MAN. New York: Free Press.

Hale, Robert L. 1943. “Bargaining, Duress, and Economic Liberty.” 43 COLUMBIA LAW REVIEW 603-628.

Kennedy, David.  1990. “Book Review.” 31 HARVARD INTERNATIONAL LAW JOURNAL 385.

Kennedy, Duncan. 2001. “A Semiotics of Critique.” 22 CARDOZO LAW REVIEW 1147-1189. [*591]

CASE REFERENCE:

PROSECUTOR v. TADIC (Appeal against Conviction), Case IT-94-1-A, reprinted in International Law Reports, Vol. 124 (2003), p. 176.

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© Copyright 2006 by the author, Akbar Rasulov