Symposium: Saving Critical International Legal Pedagogy from Formalists, Reactionaries, and Pandemics

Symposium: Saving Critical International Legal Pedagogy from Formalists, Reactionaries, and Pandemics

[Dr Mohsen al Attar is the Dean of the Faculty of Law at the University of the West Indies.]

Formalism in the teaching of international law is burning out. This is not surprising. Its application always seemed impractical, suffering from the theory’s glaring defects as well as unique flaws when administered to international law. Treaty interpretation and state practice, for example, the two most suitable facets for formalist analysis, proved deficient in producing the conclusive-qua-correct outcomes that formalists fetishize. The pervasiveness of geopolitics and diplomacy confirmed that malleable, subjective, and relative processes are more useful than mechanics to understanding international legal conflicts. Throughout the past generation of legal scholarship, however, a veritable tsunami of critique has rung the death knell of formalist pedagogy, at least when applied to the teaching of international law.

From pariah to fixture, critical stands on international law are now commonplace. A rapid scan of scholarship produced in the past few years alone shows us that international law is racist, sexist, classist, imperial, colonial, neocolonial, political, contingent, authoritarian, exploitative, and misguided. Third World scholars have been especially active in bloodying claims of neutrality, objectivity, and equality in the conception and application of international law. Likewise, feminist scholars have identified its gendered partialities just as Marxists have ascertained the centrality of capitalist predation to the regime’s institutional appeal. To be fair, doctrinal scholarship that parrots the canard of European subjectivity representing human objectivity is not at risk of fading, but it no longer enjoys the freedom of the academy. Publicists have adjusted international legal pedagogy accordingly.

And then COVID-19 hit.

The pandemic is putting critical approaches to the teaching of international law at risk. As we collectively move to the virtual provision of legal education, we come to appreciate that the medium is the message: teaching via teams is as satiating as a plate of freeze-dried curry. Just adding water doesn’t cut it.

Virtual spaces favour methods antithetical to the ambitions of critical pedagogy. In contrast to formalist approaches, which centre behaviourism, critical pedagogy is dialogic. Teachers and students collaborate in the praxis of teaching and learning. The critical pedagogist builds dialogue, camaraderie, and community as part of the learning exercise, treating knowledge not as inanimate matter but as active relation. It is through learning activities that students and teachers grow their understanding of the subject. Critical methods and aspirations demand both patience and commitment.

Moreover, if lecture theatres are brave spaces, virtual classrooms are often cowardly ones. A glimpse at Diane Abbott and Dawn Butler’s social media feeds verifies the popularity of misogyny, bigotry, and the illusion of knowledge across the Internet. Universities are not islands, and the prejudices expressed in a society find sympathetic audiences on campuses the world over.

Virtual spaces are also classist in character. When access to education is contingent on the quality of a student’s computer or connectivity, new barriers gain traction. Each new strategy illustrates the class-based dimensions of the conundrum. For example, to address the preceding concerns about camaraderie and community, some academics insist on synchronous lecturing and compulsory cameras. They appear tone-deaf to the inequalities that students confront, and their reluctance toward inviting strangers into their homes: some students do not want to turn on their cameras while others simply cannot.

Linguistic issues are the pink elephant. Universities depend on international students, with many in the UK, the USA, Canada, and Australia encouraging students abroad to proceed with their programmes from their home countries. While this is a questionable proposition in its own right, one reason often neglected is the challenge online tuition in English presents for students for whom English is not their principal language. Immersion is an effective method for developing proficiency, including comprehension across accents. Absent immersion, understanding often remains stunted. Virtual education disadvantages students who must upskill both substantively and linguistically, while the medium inhibits natural acculturation processes that presence on a campus and in a classroom facilitates.

Many readers of this symposium are conversant with these concerns as controversies about the shift to virtual education proliferate. Unions are rightly alarmed. They grieve the workload implications, the colonisation of personal space, and the surreptitious push for stronger involvement of for-profit actors in the tertiary system. Many also deplore the hasty adoption of new pedagogical technologies as we aim to recreate physical classrooms online rather than think through digital pedagogy. Staff and students are guinea pigs in this neo-managerial bonanza. Throughout our symposium, some of these issues surface but they are not the focus.

The question that informs each contribution is whether we can maintain a critical pedagogical disposition when teaching international law in virtual spaces. The answers of our contributors are mixed.

Antony Anghie opens our symposium with an ode to critical pedagogy. His opening paragraph releases a bombshell: Anghie, critical scholar, TWAIL luminary, and intellectual iconoclast, professes his commitment to “the classical positivist approach.” Before setting your copy of Imperialism ablaze, know that this is not Anghie’s Christopher Hitchens’ moment. He draws our attention to the dual disadvantage that Third World states suffer. Grievances with the international regime are plenty, yet the classical positivist approach “continues to be the foundation of the practice of international law.” Absent an alternative frame, critical scholars and their students must master the doctrine if they are to attain “better outcomes” for Third World states. As he forewarned us, Anghie engages little with virtual legal education, providing instead an introspective foray into the aspirations of critical international legal scholars.

Like Anghie, Babatunde Fagbayibo begins with a critique of international law’s pledge to “the Euro-American Validation Cathedral” itself an impediment to “the meaningful realisation of a truly decolonised scholarship.” In contrast to Anghie, he sees no legitimacy in international law’s Eurocentric foundations. He praises the efforts of scholars from across the African continent “to test and critically interrogate ideas in ways that traditional modes will not allow.” To the advantage of students operating in virtual spaces, these scholars provide material that explores, explicates, and circulates critical approaches to international law. We are no longer hamstrung by the dubious barometers of an anachronistic self-appointed clergy, with academics from across Africa producing and sharing scholarship through virtual portals.

Including my introduction, these three contributions complete our opening section. From here we swing to the symposium’s core: meditations on critical international legal pedagogy and its suitability to virtual treatment. We privilege interventions from beyond the Eurosphere. Following the lead of first and second wave Third World scholars, a core target of this symposium is the de-westernisation of legal scholarship. Gaps persist, however, and missing from our collection are contributions from Chinese, Caribbean, and Latin American scholars. While we originally invited a Chinese and Brazilian scholar to contribute, COVID-19 prevented both from realising their submissions. The same was true for an Indian scholar whose entire family contracted the illness. Similar tests are liable to plague scholars and students for the time to come. Empathy is fundamental.

Pouria Askary and Sina Etezazian open our complement of regional interventions with a review of international law teaching in Iran. The history is intriguing, exposing the shifting relationship that Iran enjoys with Europe: from one of concert and allyship, to distrust and rancour. Askary and Etezazian explain how this shift has altered international legal pedagogy, centring the teaching of TWAIL. They describe their lecture theatre and the strategies they practise to contrast Eurocentric and critical approaches. Admittedly, their students have mixed feelings about the move to online lecturing, suffering inconsistent connectivity that frustrates their engagement. This is a recurring theme for our contributors, spotlighting the impact of the digital divide on education.

We proceed to Kenya next, where Florence Shako narrates a truly colonial tale. They inaugurated the first law school in 1970, only after Kenya achieved independence. Prior to this, English colonial policy impeded the education of lawyers and politicians, for this would have been “self-destructive for a colonial government.” Colonialism in Kenya eventually collapsed, creating conditions for the law school. Shako’s approach, like that of other Kenyan scholars such as James Gathii and Makau Mutua, “endeavors to introduce literature written by African scholars” and to showcase African voices in the teaching of international law. While workable in person, she sees virtual classrooms as a hurdle to her approach. Similar to the apprehensions of others, including myself, she notes that the medium favours Freire’s banking method, engendering a climate ill-suited for critique and cooperation.

Our Nepalese colleague, Amritha V. Shenoy, exemplifies the optimism that characterises much critical international legal scholarship. To her, virtual lecturing creates an opportunity for the exploration of “different pedagogical tools.” She speaks about the use of multimedia to spur student learning and inform classroom exercises. Her point is compelling: if we’re stuck online, let’s delve into the bounty of tools the Internet provides. Like our other contributors, she targets Third World narratives. Drawing on the geography and geopolitics of Nepal, she features the tug-of-war between China and India and how this plays out in international law. Again, however, the digital divide rears its inequitable head as signal fluctuations scupper student engagement. She ends by asserting the literary credentials of critical scholarship, advising students to read the likes of Chinua Achebe, Amitav Ghosh, and Edward Said to grasp the ramifications of local histories on perceptions of international law. 

Noha Aboueldahab, an adjunct professor at Georgetown’s Qatari campus, commences with an eye-opening sketch of the international in international legal education: “students based 11,000 miles from the campus in Washington” gathered from “Qatar, the wider Arab region, and Asia” and deploying “a mix of pedagogies that lie between Eurocentric, American-centric, and critical approaches.” Her challenge is sharp: this assemblage of identities and approaches “permeates the physical classroom in a way that will be difficult to recreate in a virtual environment.” Her contribution to the symposium transcends the teaching of international law, drawing on moral philosophy, transnational pedagogy, and empirical data to reveal the layers and subtleties that colour our subject. Like Askary, Etezazian, and Shenoy, she merges introspection with pragmatism and prescription, detailing exercises that promote virtual critical pedagogy. As she concludes, the pluralism of her campus is difficult to recreate in the virtual realm, but this does not relieve us of the need to try.

In keeping with our game of geographic table tennis, Seokwoo Lee rounds out this segment with impressions from South Korea. He begins with an affirmation that will leave many of us envious: “Because of the widespread penetration of Internet usage in the country and the highly developed infrastructure for mobile internet devices, access and familiarity were already in place.” For our Korean colleagues, the transition to virtual teaching was almost seamless. I say almost for, as Lee explains, critical engagement is less cultivated in Korean law schools. Favouring a formalist approach from the outset means that COVID-19 had little impact on the content of the international legal curriculum. Lest we misunderstand him, Lee is quick to point out that Korea is not a petri dish for First World Approaches to International Law. A new initiative — the Development of International Law in Asia — seeks to collate information on state practice from “non-western countries” and to enhance their influence over the application of international law. The initiative is also curating a digital lecture series which, like Anghie and the Centre for International Law’s TRILA project, undertakes to infuse our discipline with Asian perspectives.

Our third section offers three provocative contributions. Each one relates, in professional and personal terms, the high cost of critical pedagogy. They are traversing familiar ground, but new technologies render the encumbrances more acute.

Critical scholars remark that we are at a natural disadvantage to our formalist counterparts: not only must we master the foundations, as Anghie describes them, but we must also produce the critiques and the alternatives. Far simpler to swim with the Eurocentric tide than to evoke attention to the millions who drowned in recurring imperial swells. Opposition rarely has it easy, especially not in the rarefied halls of elite legal institutions. Robert A. Williams Jr.’s quip is biting: “They are law professors, after all, so they don’t listen to other people’s stories.”

But the diagnosis of the three scholars in this section is more insidious, still. In this age of virtual lecturing, asynchronous recordings, casualisation, surveillance, and punishment, critical legal scholars are at risk. We are, to borrow a fitting adage, handing them the rope with which to hang us.

Brendan Ciarán Browne exploits his ‘above-the-bar’ privilege to elicit awareness of the dangers of teaching about Palestine in the virtual lecture theatre. His contribution — word of warning, call to action, and autobiographical account — highlights the many platforms that target academics sympathetic to the plight of Palestinians. As he demonstrates, “the digital silencing and state-sponsored censorship of those who shine light on Israeli violations of international law is sophisticated.” It is not just high-profile academics like Steven Salaita or Norman Finklestein who are vulnerable, but many more on casual contracts or pursuing postgraduate studies. There is a real risk that scholars will, with good reason, temper their critical talents to preserve their employability. As an academic who holds the line, Browne shares practical steps to minimise the violence we are susceptible to.

Our penultimate contributor is one colleague Browne has in mind. Jay Ramasubramanyam, a PhD candidate set to defend his dissertation in the coming months, recounts his experience teaching critical international law. It makes for painful reading. He depicts the demands of virtual environments for “a person of color [on] a precarious teaching contract” and for “many students of color” who bear the burden of “representing their under-represented communities.” The backlash from students and tenured colleagues is disconcerting as is the extreme teaching load needed to keep the university ticking. Building on these insights, he evidences the complicity of universities “in perpetuating racial and gender-based asymmetries.” This was conspicuous in the collective response of universities to COVID-19, as they laid off swathes of staff or saddled them with more teaching than is practicable. Ramasubramanyam’s concludes with an exquisite rhetorical question: “should I risk losing opportunities to obtain a teaching contract by engaging in iconoclasm or should I do what is safe and reproduce neoliberal modes of teaching?” As the Dean of a Law Faculty, with responsibilities toward PhDs and early career scholars alike, I am of two minds toward his answer. It is remarkably easy for critical scholars with permanent positions and pensions to advocate rebellion, without reflecting on the unremitting conditions early career scholars operate within.

Rohini Sen, co-editor of this symposium, concludes with a mic-drop. As journal editors observed, in the aggregate, the number of submissions has soared while submissions from female academics has nosedived. Informal labour, even among enlightened academics, remains gendered to the core. Likewise, Sen argues that the emotional labour of producing feminist scholarship, in doctrinal and critical international law alike, is an exhausting task. Our transition to the virtual classroom amplifies the demanding performance of this ethic, with the burden falling disproportionately on women of colour and non-binary people. She reminds us that, even in the realm of critique, feminist ethos and practices are vital yet still wanting. To avoid the despair that also accompanies critical scholarship, Sen concludes by contemplating the lessons of the symposium.

For now, I end with a lesson I’ve taken away from this symposium.

As each contribution evidences, critical scholars have transformed international legal pedagogy from a site of transmission into one of innovation. Scholars across the Asian and African continents cultivate regional approaches to international law and its pedagogy; Black scholars pursue anti-racist teaching to counteract the prejudices subsumed within the regime; TWAIL scholars expose students to the profusion of critiques the authors of textbooks ignore; and the students of these same scholars mobilise and demand not just the de-westernisation of curricula but also the decolonisation of international law. Critical scholars are doing the same now in a time of COVID-19, despite the adverse conditions they operate under.

I often wonder whether formalists appreciate what critical scholars have done for them. Not without a sense of irony, thanks to the Third World yet again, First World Approaches to International Law survive a little longer.

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