LJIL Symposium Vol 25-3: Wording in International Law: Not really a ‘hen house’: dynamics of competition amidst fears of oblivion

Unless international lawyers get their act together and agree on the basic meaning of the key terms in their discipline, says Jean d’Aspremont, observers (and, crucially, funders) may suddenly realize that the profession is really no more than an ‘expensive debating club’ – often funded by the taxpayer – ‘in which everyone talks past each other’. Thanks also to blogs such as Opinio Juris, access to the debating chamber is no longer subject to hierarchical initiation rituals: anyone with a higher degree in (international) law is at least ostensibly welcome to join in. The ensuing competition for credibility is rife, says d’Aspremont. An ever‑increasing mass of ‘young’ and often ‘arrogant’ scholars employ words as their tools in a ‘hen house’ of ‘violent’ conflict aimed at finding new ‘names’ for things which often already have perfectly usable ones. Because of the death of Aristotelian logic and other ‘foundational’ philosophies,  the main aim of the profession has become the establishing of one’s persuasiveness and authority at the expense of the nearest colleague, often in pursuit of one’s ‘unquenchable thirst for recognition’. In order to perpetuate the illusion of a fruitful debate, the meaning of words must constantly change – there is no ‘epistemic peace’, as d’Aspremont puts it. Forget great systems of conceptual beauty collectively built by cohesive schools of thought: we want tenure, and possibly glory, too. In d’Aspremont’s view, international legal academia has become an endless game where the angst of oblivion often trumps logic and courtesy. Furthermore, this constant renaming of the institutions of international law is fashionable but pointless. As in the Leopard, everything must change constantly so that nothing actually changes.

The preceding paragraph is meant to be an example of what d’Aspremont chastises. I have deliberately simplified and exaggerated his argument. I have taken his words out of context and reduced an eloquent set of arguments to what may be perceived as a rant (which his article is not). To make things worse, I have then added a perfectly unnecessary reference to a work of literary fiction which may be obscure to some of my readers, dropping it there as if everyone should know what the Leopard is (D’Aspremont would diagnose this somewhere in the spectrum between a pointless display of ‘erudition’ and a ‘strategy’ of mild ‘intimidation’). After having created this aesthetically and rhetorically pleasing straw-man, I should now proceed to mercilessly criticise his argument – a short critique is, after all, what the kind editors of LJIL and Opinio Juris asked me to write. 

In truth, I agree with many of the things d’Aspremont wrote. We would probably also agree on many things he was too polite to add. His analysis is refreshing and should be taken seriously by colleagues in all strands of international legal thinking. There is, however, a crucial problem in trying to assess the current state of academic writing from within a discipline. D’Aspremont was gracious enough to omit the sinners from his catalogue of sins, but if he and ten other colleagues had to sit down and choose examples of ‘good’ and ‘bad’ writing in international law, discussion would be protracted. So long as they speak in general terms, people may well agree that they are surrounded by boorish barbarians – but as in those statistics showing that most people think they are ‘above average’ drivers, there is something amiss here. Nonetheless, d’Aspremont’s contribution is an open invitation to (self‑)reflect upon the over-competitive dynamics of contemporary academia. Each of us is probably a boorish barbarian to at least one other colleague. In asking Opinio Juris readers to carefully consider and react to d’Aspremont’s arguments, I would like to take issue with some aspects of his unforgiving assessment of the present state of our discipline.

First, I would contend that d’Aspremont’s account is overly pessimistic. The lack of ‘epistemic peace’, as he puts it, is a sign that our discipline is reaching intellectual maturity, not that the edifice is cracking at its foundations. We have now reached a stage where we can afford to question all the basic assumptions of the discipline and radically reconsider the value of our profession from many different and often conflicting perspectives. In that regard, we may perhaps draw an analogy between ‘performativity’ in economics (as theorised by Callon) and the ‘performative’ role of international lawyers: international legal academics have always both created and analysed their object of study – more, perhaps, than other legal academics. We are finally moving away from a more or less blind participation in these ‘performative’ power dynamics (a blindness which was somewhat necessary in the nascent phase of our discipline) to a more self-aware contribution to those dynamics. Furthermore, we no longer fear that the edifice will collapse if we test our assumptions. After all, international law has survived the Morgenthau-Lauterpacht dialectic in the 20^th century and the rise of a wholly separate discipline, International Relations. We are still here. Critique of international law no longer needs to talk itself out of the discipline: it has become part of the mainstream.

I like to use the term ‘ironic distance’ to explain my perhaps slightly blasé attitude to the lack of ‘epistemic peace’. Most of us are still ‘playing the game’, even if we know its limits. In other words, the ‘young’ and at times ‘arrogant’ (in d’Aspremont’s words) generation of scholars born after 1980 cannot un‑know what they have been brought up with. The Soviet Union is no longer there, Marx and Aristotle are indeed dead (maybe). Previously world-shattering ideas such as affirming that international law is essentially a ‘language’ have become so mainstream that a version thereof can be found in the Peace Palace library’s description of ‘public international law’. The recognition (with Koskenniemi) that this language can be used interchangeably to further certain political agendas at the expense of other political agendas is nowadays accepted by (almost) everyone. We should celebrate the diversity of approaches in our discipline rather than aspire to an ‘epistemic peace’ which shall never come. Such plurality of ideas necessarily comes at the expense of coherence and aesthetics. I know of at least one very old town whose splendour is unfettered by the coexistence of concrete, plate-glass and the Pantheon.

One final point of criticism of d’Aspremont’s thoughtful analysis is necessary. Of the many metaphors he has chosen, the ‘hen house’ is very ironically not appropriate (and it would be unacceptable if it were so). If anything, the most unruly examples of pointlessly violent academic discourse in international law resemble more the Bullingdon club, circa 1927. The remarkable under‑representation of women in key positions in (international) legal academia, especially at the top of the profession, has long been the concern of colleagues (see the interesting discussions at the IntLawGrrls blog, for instance). Just as a small example, two of the most prestigious chairs in international law in the UK (the Chichele at Oxford and the Whewell at Cambridge) have never been assigned to women (at least so far). While the situation in the US is certainly different from that in Europe, could it be that some of the over‑competitive practice criticised by d’Aspremont is due to a certain dose of old-fashioned testosterone‑fuelled anxiety to compete at all costs?

Let me be clear here. I am saying that the under‑representation of women may be one of the factors contributing to a certain atmosphere in the debating chamber. I am not suggesting that the ‘wordfare’ described by d’Aspremont is ‘typically male’ or ‘male-driven’, nor am I stating that the gender dimension explains everything. I am no gender expert, and such questions would require serious analysis – it may well emerge that over‑competitiveness is a result of a more radical lack of diversity in our discipline, for example in socio-economic terms rather than gender terms, or because of our discipline’s colonialist heritage.

Anyways, these are no longer times for the Bullingdon club, in international law or elsewhere. Imagine the mutters which must have been made by old Oxbridge dons up until the 20th century when they were suddenly faced not just with the universal admission of women to take degrees – the horror – but with 1960s policies on ‘widening participation’. Here in the UK, it took quite a long time before universities became really open to students from different socio‑economic backgrounds. Thanks to enlightened (and now seriously threatened) educational reforms – starting from the 1963 Robbins report – a good university degree was no longer the exclusive privilege of the many rich, privately educated kids which traditionally constituted the bulk of the Oxbridge and Russell group student body. ‘New’ Universities were founded precisely to cater for the larger and larger undergraduate student body. Many of those ‘new’ students became brilliant scholars, whose diversity of opinions contributes to the incessant re-thinking of the basic epistemic foundations of our discipline. They are here to stay.