Critical Pedagogy Symposium: Critical Thinking and Teaching as Common Sense—Random Reflections

[Tony Anghie is a Professor of Law at  the University of Utah and National University of Singapore and the Head, Teaching and Researching International Law (TRILA), Centre for International Law, at the National University of Singapore.]

Introduction

I believe that questions of pedagogy and the teaching of law and critical theory must be considered in the context of the goals we seek to achieve as teachers. I teach my introductory public international law in the classical, positivist form. As I shall try to explain, I think teaching the classical approach is an important part of the larger project of teaching what we might broadly term ‘critical international law’. (There are many versions of `critical thinking’. Mine is based broadly on Third World Approaches to International Law (TWAIL) and Critical Race Theory (CRT). I refer in general to TWAIL.) Further, I believe it is my duty towards my students, whatever their reasons for taking my course, to teach the classical perspective. Some students take my public international law course as a matter of general interest, to inform themselves about the discipline and its role in the world. Other students want to become conversant with international law in its operations in national systems. A few seek to practice some version of international law whether it is in government or private practice, or aspire, as I once did, to make the world a better place by joining the United Nations.  Students of history, philosophy and political theory also enrol in my introductory course. In each of these cases, the classical positivist approach, which presents international law in its own terms as it were, seems indispensable for other inquiries, whether critical or philosophical; and it is the foundation of the practice of international law.

In developing states that I have taught in, I am especially conscious of a paradox: while international law shapes virtually every aspect of the lives of the peoples there, they produce few international lawyers, and even fewer lawyers who have the expertise to deal with complex international agreements and regimes involving, for instance, foreign investment and trade, human rights and environmental law. It may be a self-serving delusion on my part, but I have encountered many instances where developing countries have suffered various disadvantages because of this lack of expertise, and I would like to believe that more competent lawyering may have led to better outcomes (the critical scholar in me also acknowledges that sometimes better lawyering produces more unfortunate outcomes). My further intuition is that a country only becomes capable of engaging effectively with international law when it develops a bar with real depth in the subject. It is for all these reasons that I seek to teach international law in a doctrinal, positivist fashion, at least in my basic public international law class. That approach is essential, even if insufficient, to produce good practitioners. 

Critical International Law as Common Sense

One of the most interesting findings of the TRILA Report – 2020 was that teachers of international law in Asia have great difficulty in getting their students interested in the subject (see para 22-24). In several Asian countries I have lectured in, my hosts specifically asked me to speak to the students on why international law is important, and why they should study it. Paradoxically, this is despite the fact that in many Asian universities and countries, international law is a compulsory subject. The TRILA Report and anecdotal experiences suggest that a major reason for this indifference is because the subject is seen as remote from the everyday concerns of the people of the country (until some major event within it, such as civil war and human rights violations, draw international attention).

This sense of remoteness is furthered by the classic Western textbooks used in these countries that inevitably present a Eurocentric vision of the discipline and its history, the familiar great men and events: Grotius, Vattel, the Peace of Westphalia, the League of Nations. The Eurocentric character of international law has, in recent times, generated a great deal of scholarly attention in the West as the writings on this subject by pioneering scholars, such as R.P. Anand, U.O. Umozurike, C.G. Weeramantry and Mohammed Bedjaoui are being reassessed and re-appreciated. Important recent initiatives challenging Eurocentrism are emerging in Africa (see eg, Babatunde Fagbayibo, 2019), Latin America (see eg, REDIAL project) and Asia. However, in yet another incongruity, it is only because of studying in the West that some Asian—and perhaps Latin American and African—scholars  encounter these debates. The debate in the West—I generalize massively—is located in a particular politics, a divide between what might be seen as a conservative, orthodox positivist approach and a progressive critical approach that could take many forms. This is only to say that the term ‘critical international law’, at least in the Western world, invokes a particular political geography, a set of affiliations and personalities and outlooks, divided broadly between the ‘conservative’ and ‘progressive’.

That geography and the perspectives that come with it should not be applied wholesale to Asia or perhaps anywhere else, for that matter. Here I generalize again. But the point is that for many countries in Asia, that political geography does not make complete sense. Rather, the Eurocentric character of international law discourages students, regardless of their politics, from taking international law at all.  The progressive-conservative divide that is so familiar in the West does not necessarily apply. The point was made by a colleague at TRILA Singapore in 2018, who said something to the effect of ‘I have difficulty interesting my students in the subject when the only reference made to my country in a major textbook is that it was “uncivilized’’’.  So then, some version of what might be called ‘critical international law’, a law that interrogates the Eurocentric character of international law, is essential for the simple purpose of getting students to engage with international law in any respect, even in the most positivist and orthodox tradition.

Students in Asia experience, it seems to me, various forms of dissonance between the local and international, between the promise of international justice and the historic experience of international injustice, between law and politics (It is an interesting approach to present the TWAIL approach as the standard approach. My friend and colleague Susan Marks has told me how she presents both the classic and TWAIL versions of international law and that students find the TWAIL account more persuasive. This of course is very gratifying, but I am glad that the classical version is presented as well because it is the dissonance between the ‘conventional’ approach and the `TWAIL approach’ that arouses and hopefully develops the critical instincts of the student. It also prompts the questions: how could the classical approach have been so successful and exclusively dominating and governing our thinking about international law for all these decades? What does this suggest about the politics of knowledge?). Critical approaches—by which I largely mean a mix of TWAIL (Natarajan et al., 2018) and Critical Race Theory, for there are many critical approaches—in focusing on Eurocentrism, acknowledges and then proceeds to explore that dissonance in its study of the discipline, instead of just pretending it does not exist. Critical international law is simply common sense.

Revealing and Contesting Eurocentrism

There are a few approaches to addressing what is now recognized as the inescapable issue of Eurocentrism. One consists of what might be termed ‘ornamentalism’ (I borrow the term as used in this context from my friend and colleague Mohammad Shahabuddin), the inclusion in a textbook—and this is becoming something of a trend—of a passage or two on other traditions of international law, a nod to the rich heritage and history of India and China for instance. This approach acknowledges other civilizations without asking hard questions about the relationship between them and European international law, or disturbing in any significant way the traditional narrative. 

The argument for Eurocentrism is that traditional accounts of international law that emphasize its European character are simply reflecting a historical reality.  Against this, TWAIL asserts that this ‘European’ international law was created through the imperial encounter and was designed to further European interests. It is by examining this precise encounter that students in Asia might understand how Asian societies fit into this traditional scheme, and how their histories are related to the histories of international law found in standard Western textbooks.

My current approach—and it is a work in progress—is to focus on local history and its relationship to international law when teaching in a particular country, and to use this ‘case study’ not in an ornamental or supplementary fashion, but in order to ask ‘TWAIL questions’. In particular I focus on the history of sovereignty in that location.  Whether in Sri Lanka or Singapore or Salt Lake City, I find it useful to ask the question: who is sovereign over the land on which we conduct this class? How did this entity acquire sovereignty? What does it mean to be sovereign? What powers accompany this status?  What is sovereignty and how do some communities acquire it and others lose it? What happens to those other versions of sovereignty?

In Sri Lanka this involves the study of the Kandyan Convention of 1815 by which England took control over the country. In Singapore, it is the Treaty of 1819 between Stamford Raffles and the Sultan of Johor.  This same approach when used in Utah (the name itself here is a giveaway, a reference to the Ute tribe) leads to an examination of the Treaty of 1848 between the United States and Mexico. Tracing roots further back takes us to the creation of the United States itself, a study of Johnson v McIntosh and Marshall’s account of the origins of United States sovereignty, an exploration which leads to imperial corporate ventures in the seventeenth century, the justificatory doctrines of conquest and dispossession.

A close reading of Johnson v McIntosh reveals the story of broken treaties, the suppression by ostensibly legal instruments of one culture by another, the violence that subordinated different societies and identities. In short, this authoritative case on the origins of sovereignty in the United States  raises crucial and enduring questions about native sovereignty, race, property, gender, rights, force, conquest and the law. These themes then, are not extraneous to the law but constitutive of it. In these times, in the aftermath of the killing of George Floyd, the case continues to confront us with inescapable issues of race and domination, economy and sovereignty.  I think that every course in international law or foreign relations law in the US should include an analysis of this case as both subjects really begin with what follows from it. It is also revealing that in the United States, the case is more likely to be found in Property than International Law textbooks.

It is possible, then, to take the most conventional history of the discipline and subject it to a TWAIL critical analysis, one that focuses on the way in which a particular Asian country (or the United States or Australia-surprising affiliations and links can be made) was given the veneer of its European identity. Once this is explored, students generally become aware of how the positivist version of international law is but one way of understanding it.  They also become aware of disciplinary protocols of the ways in which the positivist approach seeks to conceal its own implications in the colonial encounter, presenting itself as the single approach. They learn critique and are empowered and encouraged to think independently.

Ranging further, a core topic such as the Vienna Convention of the Law of Treaties can be taught by examining the Treaties that were so profoundly important to the histories of those countries—for example, the Kandyan Convention of 1815 or the Treaty of Nanking of 1842.  Unsurprisingly, many aspects of those treaties would not fall within the scope of the Vienna Convention. Once students become aware of alternative possible approaches to international law, I proceed to teach the positivist version.  We discuss how the TWAIL themes we studied help us understand the operations of positivist international law, whatever the area we cover, ranging from sources to human rights, to the use of force and so on. We see the same themes of exclusion and empowerment, and claims of universality played out through the doctrines. For instance, the textbook I had been using, Dunoff, Ratner and Wippman (4th edition), teaches the ‘Sources of International Law’ by exploring the debates about permanent sovereignty over natural resources and expropriation and this lends itself superbly to the TWAIL perspective (as does the text’s use of the  Libya-Chad conflict as an introduction to the international legal system).  Of course, critical teaching is contextual, and different methods will resonate with students inhabiting different lives. Thus, critical teaching in European countries for instance, will need different approaches and these have been developed in excellent initiatives in Kent and Warwick, for instance. The project of critical international law or decolonizing international law is context specific, although local versions have much to learn from each other.

I should emphasize that in adopting this critical approach I am not condemning all things ‘Western’ and endorsing everything ‘local’ or ‘national’. Needless to say, an unthinking embrace of everything national is as problematic as Eurocentrism. Critical approaches seek to interrogate both. But, by excavating contending sovereignties and the racial, gendered, class identities they endorse, we open up a range of possible responses to difficult issues. This approach, particularly in non-European countries, also points to the hybrid sovereignty that continues to animate a complex lived history. Older forms of sovereignty and notions of governance still make themselves powerfully felt despite or perhaps through the carapace of European sovereignty. And we are prompted to think about those other systems and traditions and their ideas of society and governance (see Separate Opinion of C.G. Weeramantry, Gabčíkovo-Nagymaros Project case) and what they can contribute to international law. Surely fresh approaches are needed when existing answers seem inadequate to dealing with the most urgent problems of our time.

In this way, further, I try to avoid simply ‘adding on’ critical theory somewhere at the beginning or the end. Critical theory, at least in this context, is at its most effective when it is studied precisely through the positivist approach. Indeed, the TWAIL claim that imperialism has shaped and in many respects continues to shape international law, will be invalid unless it can be shown in international law’s actual operations and developments. I began by saying that it is my duty to teach the positivist approach to my students. I end by saying that I also see it as my duty to teach the critical approach to my students. I should equip my students as best as I can with the different analytical tools they could use to engage with the discipline of international law. And the distinction between the ‘positivist’, ‘classical’ and ‘critical’ approach, as I have tried to suggest, does not always hold. I believe that practicing lawyers are more effective if they use critical tools (and indeed, they inevitably do, in various respects). What my students do with those tools is up to them—they are sovereign.

Critical Teaching and Scholarship

I should add that I feel a particular responsibility to present students with the critical approach when teaching in Asia and other parts of the developing world. I believe that critical international law—and the larger world it opens up of methodological plurality (Burgis-Kasthala, 2016) and more broadly in simply questioning whatever is studied—is crucial to the writing of engaging and original scholarship. A failure to teach in a critical way will mean that students in Asia will be denied the training that is important for them to produce innovative scholarship, to tell their stories in ways that are more reflective of their realities.

Western institutions and scholars are now deeply interested in developments in Asia because of the economic success of countries such as China. A growing body of scholarship about the region has emerged. This expansion in interest beyond Europe and the West is welcome. But I would hope to see, for instance, more Indonesian scholars writing for international audiences about Indonesia instead of confining their work to local journals. It is especially important for Asian scholars to write about their own countries, confident in their own perspectives and frameworks. I would like to think that initiatives such as TWAIL have expanded the range of approaches that are acceptable to major journals, but TWAIL of course is but one possible approach and there is so much more to be done for young faculty, particularly in fostering much needed English language skill (yes, this is a paradox). I suspect scholars in many other regions of the non-Western world face similar difficulties.

Compounding matters, scholarly publication has become crucial for promotion and progress in Asian countries-another major finding of the TRILA Report – 2020 (para 128). Junior faculty in Universities that have not given much emphasis to writing and research face great challenges in meeting the international publication requirements now demanded of them by Universities driven by the  imperatives created by the new ‘standard of civilization’ that we call rankings. (And these rankings in my view are certainly as alienating and damaging as their predecessor).

In Concluding

Questions of global justice and inequality are surely central concerns of any study of international law. Education, and in particular the neo-liberal model of education that is now so pervasive and dominant has become one of the means by which inequality—epistemological, representational, economic—is being accelerated and intensified.  The implications of all this are still to be worked out as they relentlessly unfold even, and perhaps particularly through the massive disruption and confusion caused by the pandemic. This is another reason why critical approaches are so essential and common-sensical. Critical teaching is a crucial way of at least attempting to ensure that the act, the vocation, of teaching itself might resist these developments and perhaps in some small way further the struggle against inequality and injustice.