Symposium on Classism and the International Legal Profession: The Tragicomedy of Critics in the Classist Discourse of International Law

[Shahab Saqib (@sufi_shahab) is a Visiting Lecturer at the SOAS University of London and a PhD Scholar of law at King’s College London]

Introduction

In a bizarre conversation with an established colleague on international law, I was told, ‘you should run away from being a critic of international law as I did. It won’t earn you a dime’. The discussion was long and covered various other issues, but there was something deeply problematic about this statement that got my attention. What was the conjunction between being a critic of international law and earning? Even if there was, why was it problematic?

In what follows, I explore this tragicomedy of critics in the classist international law discourse. Initially, it is demonstrated that since international law evolved from the classist discipline of law, its connection with classism was inevitable. It had a special place for the privileged, while it filtered those who criticised its classist structure. This created a complex tragicomedy in which the critical scholars of international law (CSIL) assimilated with the same classist structures they were committed to bemoan. However, since they didn’t identify as the bourgeois of international law either, it made them an ideological sub-ensemble of it – petty bourgeois. My conversation with a reputable colleague of international law illustrated this ideological shift. I problematise this transformation by demonstrating that it 1) dismantles the positionality of CSIL, 2) makes them the agents of assistance in endorsing the classist policies of international law, and 3) cripples them from addressing the problems of the lower class in the classist discourse of international law. In that sense, it may appear as criticism against CSIL. It is, however, a call for self-reflection.

From Classism in International law to the Tragicomedy of Critics.

It is a given fact that law is a profession for the elite. The closed-legal shops of the legal profession have often been criticised for excluding those who do not have a wealthy background or foreign credentials. In everyday life, the luxurious suits of barristers, wigs, cars, and lifestyle signal the construction of a wealth barrier that separates the elite from the others. The call to the bar, in this profession, is a call to cross the barrier from one class to another. Since international law takes its inspiration from the legal profession, one should not expect anything contrary from it. Quite recently, Carole Silver and Swethaa S. Ballakrishnen illustrated the transition of thousands of international students, mostly those who can afford the extravagant high fees, to the US and European law colleges to secure better careers in international law (p. 482). Some of them even migrated and stayed in those countries, and why would they not when it facilitated their mobility? After all, most of the international law institutions were either in Europe or in the US. Against this background, to argue that the discourse of international law is classist is to say the obvious – something that is well-established and irrefutable. What requires exploration is the interaction between a discipline that is rooted in classism and the role of CSIL in it.

As strange as it may appear, it is a truism that critics are seldom welcomed or given equal opportunity in the discipline they choose to criticise. The struggles in the discipline of international law, therefore, should neither sound new nor dissimilar. Its architecture is designed in a way that systematically benefits those who assent to it while disadvantaging those who raise their voice against it. Calculate and compare the number of conferences organised in support of international law against those that criticise it, the content of the international law modules that endorse the discipline against the one that challenges it, the journals that publish research in favour of international law against the one which is critical of it, the disparity will become evident. Even the best critical scholarship on international law struggled to lay its feet in the leading journals of international law – David Kennedy, Catherine Mackinnon, and Martti Koskenniemi, all published their initial articles in the less-known journals (p. 248). Others, when it comes to criticising bourgeois institutions of international law, either choose to remain silent or use pseudonyms instead. CSIL thus stand on a slippery slope. They choose their words carefully and acknowledge that they are living on the edge.

Just like a fish often crosses the periphery of water to breathe fresh air, in a discipline that suffocates critical thought, the critics of international law often assimilate with those whom they choose to criticise. The language is softened, the boldness lessened, and euphemisms deployed, all in an effort to become a Schrodinger’s cat of international law – which is and is not associated with it at the same time. The work of a critic in that sense becomes tragicomic since, as Mohsen al Attar puts it, ‘(for critics) the only thing more damned than a world with international law is a world without it’ (p. 145). They walk their own path, but when the water is too high, they step on the stepping stones of international law to join the others. In this process of assimilation, what CSIL do not realise is that they sometimes reproduce the very hierarchies they once committed to bemoan.

There is, however, another dimension of this assimilation. If international law is classist in nature, driven by the force of the bourgeois, what does it say about CSIL, who often assimilate with the same to sustain its structure? One way of reflecting this relationship is through the role of petty bourgeois, which CSIL inadvertently acquire in its assimilation into the mainstream hierarchies of international law. The running away from being a critic of international law towards sustaining the models of international law indicates this transformation the worthy colleague was referring to. Given that, in their case, it was done to escape the class subordination and struggle to land their feat in the bourgeois scholarship of international law, they became what Nicos Poulantzas referred to as the formation of the petty bourgeois ideological sub-ensemble – a category that stood contrary to the ideological class struggle of the proletariat (p. 288).

To argue that CSIL resemble petty bourgeois in admiration of the discipline they choose to criticise is not necessarily without merits. There is no module, whether taught by a critic or not, that does not adhere to the epistemologies of international law created by its institutions. Critics write in the language of the bourgeoise, teach in their educational institutions, seek promotion in their pedagogical structure and spend ridiculous amounts of money to attend their conferences. In part, what they do can be explained as cultural assimilation. Sometimes it is out of necessity and, some other times, just out of fatigue to bring emancipation through international law. It is for them to address this deviance and explain the causes which lead them to do so. However, in a broader discussion of the class struggle in the discipline of international law, it establishes a dangerous precedent and becomes problematic for various reasons.

To state one, critical scholarship of international law is deeply influenced by the experiences of the scholars who contribute to it. This is not to say that other scholars, let’s say from the West, have not given their input in its development. However, the positionality of scholars from the Global South, and especially women, adds to it what others could not. The attempt to assimilate with the bourgeoise of international law endangers this unique positionality of CSIL – especially of those who belong to a lower class. To give one example, critical scholars who assimilate with the bourgeois of international law may as well be covered for their expenses in a conference. Still, this can disrupt their positionality and may blind them to its hideous charges. This is not true for academics only. I once discussed a proposition with a colleague of mine: what would CSIL do differently if one of them, let’s say B.S Chimni, ever becomes a judge of the international court of Justice (ICJ) or any other tribunal of international law? Possibly various things, but there was an agreement that 1) given the current structure of international law, a CSIL may not be able to do much, 2) it may disturb their positionality, preventing them from writing the way they do. Thus, assimilating with the bourgeoise of international law carries these risks. Just like a petty bourgeois works as an ideological sub-ensemble of bourgeoise to sustain its hierarchies, CSIL may as well become sympathetic and conform to the classist discourse of international law as well.  

This spirals another controversial issue of critical scholarship and its placement within the contemporary structure of class and international law. Why would a critic of international law who is a tenured professor at an educational institution or a judge of any international tribunal/court ever take a stance against its classist policies? What is in for them? Let us consider the example of universities (the Anglo-American institutions), which are breeding hubs for international lawyers. It is a given fact that these universities charge exorbitant fees and double them for overseas students. Such policies either preclude poor students, especially from the Global South, or force them to make huge financial sacrifices. In these institutions, raising objections against their exploitative fee standards by a CSIL becomes objecting oneself, as a CSIL derives their income from the same source. To use Attar’s words to explain it, ‘for critics, the only thing more damned than a world with a bourgeoise international law institution is a world without it’. The irony is that these exploitative international law institutions may even use the names/pictures of CSIL faculty for advertising and attracting more students. It then changes into a pattern in which CSIL become agents of assistance in the classist policies of international law.

There is, nonetheless, an unpleasant paradox obscured in this tragicomedy. The lower class and the critical legal scholarship of international law are fundamentally connected. The former seeks emancipation from the classist discourse of international law, whereas the latter provides the critical tools for them to do so. In other words, since international law is a discipline for the elite, it alienates those who are members of the lower class. Those who are alienated in this filtering either turn to CSIL to raise their voice or strive hard to become one. In both cases, critical scholarship of international law becomes a sanctuary for the members of the lower class. They look up to them for raising their voice in a discipline that mutes them. Running away from being a critic of international law dismantles this sanctuary. It begets petty bourgeoise in a way that betrays those who trusted the CSIL with the recognition of their class. The misfortune of this betrayal is that members of the lower class are pushed into cleavages (in a socio-political sense), where not only international law and its institutions but even its critics become strangers to them.

Conclusion

The aforementioned analysis portrays a rather melancholic image of this tragicomedy. On one end, it excuses why one may run away from being a critic of international law, but on the other end, it also demonstrates the problems it begets for CSIL and their struggle for the emancipation of the lower class. As a conclusive note, one may then question what to do with this tragicomedy. For starters, do not run away from it. CSIL should know that going against the flow is not an easy business. It requires extra effort, thinking outside the box, and stating things that may often raise eyebrows. CSIL should, therefore, train their chins and be accommodative of punches they receive in the process. After all, it is a contract they signed, a journey they chose to travel. More importantly, in this journey, they should also be aware that running away from being a critic of international law betrays those who trusted them – the members of the lower class silenced by the classist policies of international law. Their desertion neither helps them nor whom they seek to represent.