19 Nov Alexandre Kojève, a Neglected Figure in the History of International Law
After a long period of relative neglect of such studies, there’s a boom in scholarship in the history of international law, as Alexandra Kemmerer noted at Voelkerrechtsblog early this fall. Kemmerer suggests, rightly, that disciplinary boundaries limit the full potential of historical studies to illuminate the genesis and sources of the international legal world in which we live. A true example of this is Alexandre Kojève, the French-Russian philosopher whose left-wing Hegelianism inspired a crucial generation of postwar Paris intellectuals, including figures such as Queneau, Lacan and Merleau-Ponty. Kojève wrote (though rarely published in his lifetime) works on religious thought (including inquiries into Eastern religions), on the meaning of abstraction in art (he was Kandinsky’s nephew), on determinism in modern physics, on Hegel’s Logic, and a three volume history of ancient philosophy. Kojève’s famed debate with Leo Strauss about the world state, On Tyranny, is the subject of a chapter in my recent book Leo Strauss Man of Peace. So obviously Kojève defied, and his oeuvre defies, all normal disciplinary or specialization boundaries.
Almost hidden in all of this, however is an important volume of legal philosophy, Outline of a Phenomenology of Right. It was written when Kojève was in Marseilles during World War II, working in the French resistance, but only published long after his death, at the initiative of the great French public intellectual and cold war liberal Raymond Aron (With Bryan-Paul Frost, I’ve produced a translation, and interpretive commentary). The Outline deserves the attention of scholars of international law in part because of its distinctive argument that globalization of law’s destiny-arguing less from the philosophy of history, though that’s always in the background, but principally from a view of the intrinsic nature of legal order, and the human ideal it seeks to realize. Kojève’s argument is that a universal legal order-with however important components of what we would call “subsidiarity” or federalism-will emerge through mutual recognition between judges and regulators and the (partial) harmonization of laws that is entwined with recognition. He imagined a form of globalization that would entail important elements of social justice, a conception of equal citizenship as including social and economic rights. It is interesting to compare Kojève’s idea of recognition and global justice with that developed by Emmanuelle Jouannet in her recent book, What is a Fair International Society?, which has just been reviewed by Ruti Teitel in EJIL.
But, believe it or not, there’s lots more. This very same Kojève also happens to have been one of the main legal architects of the GATT; as Irwin, Mavroidis and Sykes note in their study of the GATT’s origins, he was head of the legal drafting sub-committee. At the time Kojève was a French official, who would also work with Robert Marjolin among others on the design of the European Community (now Union). Kojève tried to influence the development of the GATT in a direction contrary to the mercantilist or proto-neoliberal tendencies of the Anglo-American negotiators. He designed proposals for a global commodities facility, and was at the forefront of efforts to provide a special regime for developing countries, which Kojève conceived as a kind of reversal of colonialism, with new rules that would switch around the terms of trade between developing countries and the former imperial powers in the developing countries’ favor. He was apparently known as the “serpent” by the American GATT team, one former ambassador told me, because his dialectical brilliance could run rings around those who challenged his position in Geneva discussions. Looking at Kojève’s role is useful in helping us understand that there were highly informed alternative views of the international trading system at the Geneva table during the formative years; this contrasts with the impoverishment that came with the adoption of a basically neoliberal outlook by the increasingly closed “epistemic community” that produced the WTO, and the legitimacy crisis of global economic governance that followed not long after the WTO’s founding. Remarkably, no in-depth study has been done of Kojève’s place in postwar international economic lawmaking and diplomacy; a few years back I spent some weeks in archives in Paris, preparing the initial groundwork for such a study. But it would require quite a few interviews as well much more archival work, including at the GATT itself, to do the job properly. I hope there’s someone out there reading this who will beat me to it…