International Law’s Invisible Frames Symposium: Concluding Remarks

International Law’s Invisible Frames Symposium: Concluding Remarks

[Andrea Bianchi is Professor of International Law at the Graduate Institute of International and Development Studies, Geneva; Moshe Hirsch is the Von Hofmannsthal Professor of Law at the Hebrew University of Jerusalem and Co-director of the International Law Forum at the Hebrew University Law Faculty.]

We are extremely grateful to the editors of Opinio Juris and Alexandra Hofer for hosting and organizing this book symposium. Thank you also to the contributors – Emiliano Buis, Adil Hasan Khan, Sofia Stolk and Alexandra Hofer – for their engagement with the arguments raised in some of the book’s chapters. Their thoughtful contributions raise many intellectually challenging issues. Regrettably, due to space constraints, we are able to comment on only a few of those. 

Before engaging with the contributors’ comments, however, it might be worth reminding the reader of the book’s two strands of analysis. From the standpoint of social cognition, the book’s main premise is that humans acquire and form their knowledge through cognitive processes (e.g., perception, interpretation, and language). At the same time, knowledge is processed and used via different mental channels to form a representation of reality. As Friedman aptly explains: ‘[s]trictly speaking, what human beings see, feel, taste, touch, and smell is not the world per se but a version of the world their minds have created’. International law as a social process is a stimulating object of investigation for those who intend to analyse social cognition in order to understanding how psychological and sociocultural factors (including unconscious biases) can affect decision-making in an international legal process. 

The other strand of analysis is knowledge production, which significantly departs from traditional representations of international law that look at it as a social practice that scholarship should objectively apprehend and rationalize in their writings. An increasing number of international law scholars have abandoned such a simplistic view, and adhere instead to the vision that what we know as international law is produced by processes and mechanisms of a different nature. The book attempts to foreground the notion of ‘knowledge production’ with due heed being paid to the forces at play and the actors involved in such processes. Identifying the groups of people and institutions that shape and alter the prevailing discourse in international law, and shedding light on the implicit meaning of the various mythologies that influence our normative world, are key factors to providing a better understanding of the invisible frames within which international law is formed, interpreted and implemented.

Let’s now turn to some brief comments on the insightful contributions to this Symposium.

Emiliano J. Buis’s contribution reviews Shiri Krebs’s chapter and raises two thought- provoking issues relating to inter-temporality and the role of emotions. To determine whether a particular decision taken by a military commander is lawful or not under international humanitarian law (IHL), military investigators and judges are required to put themselves in the shoes of the individual commander and examine the various circumstances of the specific case (including the information available to the commander). As Buis insightfully notes, such an examination presents an ‘inter-temporal’ dimension, as ex-post investigators and judges have to ‘to move back in time’ and create a mental construction of the particular past event, composed of both subjective elements (relating to the specific commander) as well as objective standards (pertaining to the ‘reasonable commander’). This perceptive characterization captures the mental challenge faced by adjudicators and investigators who are often required to process vast amounts of information and construct a scenario as close as possible to the reality existing during the critical period (which is often marked by uncertainty). 

Buis’s contribution also points out that ex-post judges and military investigators do not directly experience the particular event (‘in the raw’); rather, they employ cognitive processes that mediate between relevant information and their mentally-constructed representation of the past event. Thus, for example, decision-makers selectively filter in/out items of information and interpret these items differently. Such inter-temporal constructions of past events are influenced not only by the observed data but also by the sociocultural context and associated meaning attributed to the data, as well as personal characteristics of the adjudicator/ investigator. As for the above-noted attempt ‘to move back in time’, it is worth emphasizing that the construction of knowledge by ex-post judges or investigators is affected by the circumstances prevailing at present – during the period in which the reconstruction of the past event is made. Thus, while adjudicators and investigators examine evidence regarding past events, their examination involves lenses that are affected by current circumstances (like current emotions or contemporary norms of attention). Furthermore, cognitive processes employed by judges or military investigators are vulnerable to well-known biases (such as confirmation bias, which is highlighted in Krebs’s chapter). 

Buis rightly underlines the role of emotions in IHL. Indeed, recent social cognitive studies underline the role of motivation and emotions (labelled as ‘affect’) in a broad range of mental processes. Thus, for example, emotional moods influence attention, memory, and judgement. In addition to the significant emotional dimension, it is noteworthy that examining the social context in which military commanders operate is significant for understanding (and interpreting) the decisions they made during military conflicts. Social cognition literature highlights that cognitive processes are influenced not only by neurological and psychological factors but also by sociocultural factors. Thus, for instance, people are socialized (e.g., via learning a language) to particular sociomental patterns and socially pressured to follow these patterns (such as norms of attention or categorization). Emotions and sociocultural factors are occasionally inter-linked; e.g., collective memory often generates a sense of pride or embarrassment within the community’s members. Consequently, in order to construct a mental representation of the particular past event (that might involve a violation of IHL), resembling as much as possible the event in real life, it is significant that judges and military investigators take into account the role of subjective emotions as well as sociocultural factors involved in the cognitive processes that led the military commander to the critical decision. Overlooking the role of emotions and the sociocultural context may well lead to an account detached from the real life of military commanders. A significant dilemma arising here concerns the role of subjective emotions and sociocultural features in the determination of criminal responsibility or adequate punishment. 

Sofia Stolk’s comments (in collaboration with Alexandra Hofer) on Ana Bernardino’s contribution help us shift the debate on the role of international law textbooks (and what they teach us not to know) onto the larger framework of international law teaching. What are we to teach? How? Do we need a textbook? If so, what for? What is the role of the teacher? These are some of the self-reflexive questions that any good teacher should periodically ask herself.

Stolk’s insightful observations nicely complement Bernardino’s epistemological points and witty remarks. To look at textbooks as ‘engines of socio-mental control’ and to expose the micropolitics of textbook writing is a much-needed revelation of an invisible frame which is conspicuously before our eyes and yet few can see. No textbook can be neutral and offer a point of view from nowhere about international law. All scholarly writings (and textbooks are no exception) are situated.  But the problem is that their situatedness can only be unearthed by the critical teacher. This is more easily said than done. As Stolk underscores, teachers and students prefer the ‘reductive approach’ to international law that most textbooks adopt, as it enhances their confidence and makes them feel able to always give the correct legal answer. 

The above considerations notwithstanding, to rely on textbooks to provide students with the traditional view of international law espoused by most textbooks may have its pedagogical value. As Tony Anghie candidly put it in his contribution to the Opinio Juris Symposium on Critical Pedagogy (here), to teach a traditional, positivistic course on international law in order to introduce students to the discipline is part and parcel of the larger project of teaching critical international law. It is only by having a good mastery of the official discourse (the object of critique) that one can credibly adopt a critical stance about it. 

The ultimate message, conveyed by Stolk, along the lines of bell hooks’ well-known definition of the classroom as the ‘most radical space’ for discussion, is that the textbook is not the endpoint but rather the beginning of a conversation. While it is probably true – as Stolk maintains – that there is no dearth of creative and critical teachers who challenge traditional international law structures and authorities, and who end up reframing in the classroom what the textbook frames on paper, the situation in which the textbook stands on its own as the sole or almost exclusive instrument of student learning may be more frequent than one could wish for. In realities where the material and cultural constraints, including academic practices, often coerce the learning space into narrow boundaries, textbooks and their disguised disciplinary politics still represent the primary source of learning about international law. In the absence of counter-weights in the guise of critical teachers or other complementary pedagogical tools the authority of the textbook may remain unchallenged. 

Adil Hasan Khan’s insightful comments on Akbar Rasulov’s piece on the discipline as a field of struggle, provides remarkable added value to the debate on knowledge production processes. While agreeing with Rasulov that previous accounts of disciplinary practices have neglected the ‘social materiality’ of the discipline, Khan argues that attention should be paid to the distinctiveness of the practices of international legal scholars and that the social situatedness of knowledge cannot be analysed only in relation to its ‘institutional embeddedness’, as it is embodied in the dispositions (habitus) of those who produce disciplinary knowledge. 

The Bourdieusan concept of habitus, employed by Khan to criticize Rasulov for not taking it duly into account despite his reliance on Bourdieu’s theory of ‘scientific field’, is a central point in Khan’s critique. In particular, Khan takes issue with the almost exclusive attention paid by Bourdieu to how acquired habitus constrains the participants in the field to believe in and conform with ‘the “obviousness” of the “reality” of the field’, thus ensuring the latter’s reproduction. In fact, one should also look at the way in which habitus is formed and how it develops in practice. Drawing on the work of anthropologists Asad and Mahmood, Khan puts forward a ‘re-conceptualisation’ of habitus that emphasizes its potential for enabling transformation.  Rather than looking at the social world as if it were constituted only by autonomous and fixed fields, Asad and Mahmood argue that there are also ‘cross-cutting disciplinary formations that also cultivate different embodied habitus’, which they call ‘tradition’. The notion of tradition introduces a temporal element that allows the inter-generational transmission of knowledge and enables the participants in the field to challenge and transform their ‘way of life’. Habitus is no longer associated exclusively with constraint and submission with a view to reproducing the field, but also with freedom and potential for transformative power.

The call for developing a sociology of the discipline that pays due heed to both habitus and ‘tradition’ is definitely worth making, particularly as this might break up the Western representation of a unitary and culturally homogeneous notion of the field, which prevents encountering other modalities of crafting the dispositions that design the contours of the discipline’s ‘way of life’. There is no doubt – as Khan holds – that legal education as a practical exercise of embodied teaching and learning the dispositions of the discipline has a key role in shaping up the ‘form of life’ in which we international lawyers live and thrive.

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We are extremely grateful to all the colleagues who have engaged with the book. Their contributions have provided remarkable added value to the debates the book intends to spur. We hope that this Symposium has contributed to shedding light on additional invisible frames as well as providing tips to unveil them in order to better understand international legal processes. The potential avenues for further research on social cognition and knowledge production are numerous and certainly worth exploring. We hope that our work will stimulate further studies exploring how mental processes and social structures contribute to forming our knowledge about the social practices of and the theoretical discourse on international law. 

There is nothing to fear (except fear!) in bringing novel intellectual insights to bear upon our understanding of international law. International lawyers’ traditional preoccupation about losing the autonomy of the law, or undermining its authority should not hamper reflection about the actors and processes that shape disciplinary knowledge and professional practice. The invisible character of some of them is no magical feature. Sometimes we overlook the invisible frames simply because we have not been socialized to see them (or we have been trained not to see them), even if they are conspicuously before our eyes. 

We hope that this Symposium has brought some visibility to the questions we raise in our book. Most importantly, we hope that researchers may find the insights provided in our collection of essays useful for what they do. We greatly enjoyed doing research and writing on social cognition and knowledge production in international law. As usual, only the reader will tell whether what we did was worth the effort!

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Tamas Hoffmann

I find quite interesting how this edited volume lays bare one of the invisible frames of international law, that is the selectivity in the creation of international legal scholarship. As usual, this volume exclusively included authors from Western elite academic institutions. It might worth pondering whether non-Western academics are also capable of producing international law…