LJIL Symposium Vol 25-3: Wording in International Law: A Comment

[Michael Kearney is a lecturer in law at the University of Sussex]

Many thanks to the organisers at LJIL and Opinio Juris for the opportunity to comment on Jean’s article on Wording in International Law.

At the core of the paper is a plea that international legal scholars be alert to a tendency in contemporary scholarly production whereby the desire of authors to establish, via various negative wording strategies, their professional or personal prowess, trumps the essential requirements of the community on the whole, namely the preservation of a sense of shared social identity without which the very structure and potential of the community could fade away.

While certainly an interesting paper that has raised some significant issues worthy of further reflection, I’m not, yet, overly convinced by the underlying proposition. This is, if I understand it correctly, that there is an ongoing, deleterious competition amongst and between international legal scholars, characterised in the main by a propensity to faux-erudition dressed up with hollow aesthetics, and which, unless checked, or at the least accorded adequate consideration and attention, could culminate in the intellectual and financial marginalisation of the community of international legal scholars.

In the first instance, and what I consider to require further clarification, is the idea that we, as scholars of international law, are indeed engaged in a competition for naming. The paper’s conclusion almost suggests as much in stating that this competition may not even be ‘a proper competition in the first place’, a proposition that I would tend to adhere to though I would like to hear further on the matter. The very idea that engaging in scholarly production (and considering scholarship production while failing to touch on teaching was something I thought amiss here) is a form of competition, is something I don’t find particularly convincing (not to mention attractive).

There is no doubt perpetual competition amongst the scholarly community (and students) for research funding, internships, post-docs, lectureships, chairs, and a host of other finite resources, perhaps defining the community in many ways, but I’m unsure that such externally enforced, structural competition can properly be understood as also manifesting itself as a competition for influence through our scholarly texts. I’m ready to be swayed though, keeping in mind the tremendous volume of texts produced and the need to be recognised, cited, and acknowledged which is certainly as much professional as personal, but for now I remain unconvinced that even if such a competition does exist, that it presents a significant threat to international legal scholarship on the whole.

Following on is the characterisation of such competition as Wordfare. I wasn’t exactly overjoyed to see the use of this term. I’ve published recently on the concept of Lawfare, and while the substance of that work appears to me to have been worthwhile, the term itself, to be honest, grates. Actually the use of the term Wordfare here prompted me to finally chase down the etymology of ‘fare’. I’d assumed it was from the French faire – to do –  as in ‘to do’-war, but apparently it is rooted in ye olde English, meaning ‘to journey’, as in ‘to go’-to war. Wordfare, ‘to go’ to words, that is, the idea that scholars apply various tactics of wording in order to bolster the substance of their argument, seems from one angle to be stating the obvious insofar as we have very few additional tools with which we can easily work with. Whether this can properly be understood as evidence of a competition is doubtful.

What is compelling about this paper are the reflections and critiques on the undeniably actual existing strategies of some scholars to artificially bolster the substance of their arguments through various uncomplimentary techniques. The sub-sections such as ‘Wording and the magnifying of erudition’ are a welcome, if understated, damning of what is a quietly infuriating tendency in the literature. Quiet, I suggest, because there is certainly a community etiquette which precludes the overt ridicule or lampooning of scholarly production that is quite obviously pompous, bombastic, or self-gratifying. As an aside, given that there is so much power exercised over the community by near monopolistic, profit-driven publishing houses, perhaps this is to be expected. Going on, if there is to be a functioning community of international legal scholars then a shared etiquette is, I agree, essential. Yet one of the elements of this etiquette, as I understand it at least, is to avoid publishing overly critical reviews of scholarly texts. Simply put, if you find a piece you’ve been requested to review is of a terrible quality then the best thing to do is to have it disappear rather than to breach the received etiquette. We can easily knock judges, journalists, prosecutors, lawyers, or politicians when they fumble in producing textual material but it’s rare enough to sink our teeth into colleagues. This was an issue I grappled with in writing a review of a book on counter-terrorism legislation back in 2007 (review published in 2011). I concluded thus: ‘In effect, given that this book is peppered with such quantities of both factual and typographical errors, not to mention an absence of any overall direction, its very publication is puzzling and should strike a note of warning for the quality of academic work in this area.’ The book at hand was genuinely shoddy, and my motivation in breaching etiquette (perhaps readied also by deep opposition to the author’s political bent?) was essentially to warn students before they forked out the whopping £55 being asked by the publisher.

Reading Jean’s paper I felt that the underlying proposition could have been more easily asserted and clarified had he provided examples for each of the offences discussed, and linked them directly to the Wordfare phenomenon. That would doubtless have constituted a particularly insensitive breach of etiquette, and while it would no doubt have been entertaining – assuming one’s own work wasn’t being pilloried – as it stands the paper will encourage each of us to reflect critically on our own scholarly products, and it thereby serves a valuable purpose. It certainly prompted me to reflect on various texts in which I may have engaged in some of the Wordfare techniques and there is a valuable contribution here to an examination of the nature of our community as manifested in the structure and form of the texts we produce.

My final comment is to assert that while scholars should avoid the various cringeworthy offences highlighted in the paper, we should also strive to avoid the straitjacket of a standard style or orthodoxy (not that Jean is advocating any such thing, though the suggestion that we must ‘preserve the linguistic consensus’ may too closely border on such an idea). While the idea of the social identity of the community of international legal scholars is at the heart of this paper, I’m not quite sure that it actually exists in quite as formal a manner as suggested, nor that there is any necessity for such. To be sure an individual may satisfy all the criteria Jean correctly notes as defining membership of the community, but perhaps many of us feel that while we have one foot in, another is firmly out; perhaps the second foot is entrenched elsewhere in the broader interpretative community of international law, and perhaps it is very much elsewhere. Such hybridity can, I suggest, be encouraged, while avoiding the ills of merely shouting past each other in an effort to fuel SSRN tallies through dreaming up fame-inducing neologisms and idioms. Allowance can be made for concepts and wording that properly serves a purpose in promoting or clarifying a substantive argument even if drawn from outside the international legal scholarship set, or even from a quite distinct branch of scholarship. This may be the case even if such wording does purposively and explicitly convey ‘the social identity of the belligerents’. (Actually, on this very point, and conscious of my own sins, may I suggest we avoid unnecessarily using military terms!)

Given that I found this paper to prompt critical self-reflection, I will finish with a comment on a personal example of ‘naming’ that probably falls right within the characterisation of Wordfare that Jean is raising. In an April 2012 comment piece for Opinio Juris on the decision of the ICC Prosecutor on the Palestinian declaration, I needed to use the term ‘politricks’ to describe the actions of the Palestinian Authority. Pompous, fame-enhancing, dismissive of the possibility of a shared social identity, or just self-gratifying? All legitimate responses such ‘naming’ may have prompted in my peers, yet it was genuinely informed by my social identity as influenced by the social and political semantics, the language that is, that drives the consciousness inherent in reggae. I’m not being asked to apologise for this, but I’m glad that in addition to the formal products we place in the journals and books which constitute the backbone of international legal scholarship, the development of the blogs have in a singular manner confirmed and promoted a form of communal social identity that in many ways depends on contrasting styles and formats, even if occasionally raising a cacophonous brouhaha, and for now at least I don’t think we need worry about our expensive debating club being dragged down by the occasional wording or aesthetical offence.