The Unconscious Lightness of Play: On Research and International Law

[David Matyas is a PhD Candidate and Gates Cambridge Scholar at the University of Cambridge, Lauterpacht Centre for International Law whose research focuses on the laws of humanitarian assistance. Before turning to law, he worked as an aid worker focusing on disaster risk, with placements in Niger and Senegal.]

Each year, as the holidays roll around in winter and summer, I’m reminded of a few lines by US Supreme Court Associate Justice Louis D. Brandeis to a young lawyer at his firm. He writes, “The bow must be strung and unstrung;[…] there must be time also for the unconscious thinking which comes to the busy [person in their] play”. These lines are, on the one hand, an appeal for the value of leisure (Brandeis did say, after all, that he could do 12 months’ work in 11 months but not in 12). I think, however, that they are more than just about taking time off. Specifically, I’ve been reflecting this year about the word “play” and what Brandeis meant in describing the “unconscious thinking which comes [through] play”.

Instinctively, as international lawyers, we know the pedagogical value of play. We play as students when we moot at the Jessup, Vis, or Pictet. We also teach through playful posts that ask “Who is Game of Thrones Worst War Criminal” or which apply IHL to the Wizarding Wars of Harry Potter. Play allows us to learn, test hypotheses, and make sense of the world. Moreover, we substantively value play in international law. Article 31 of the United Nations Convention on the Rights of the Child is perhaps the most apparent example, which recognizes the right of children “to engage in play”. Play even features in more general metaphors about international law itself, in contributions from the likes of James Crawford, Jeffrey Dunoff, Martti Koskenniemi, and Andrea Bianchi, Daniel Peat and Matthew Windsor — who variously describe playing the game of international law.   

As international law researchers, however, I wonder how committed we are to play? If, as Albert Einstein (is attributed to have) said, “play is the highest form of research”, how are we making play part of our research agendas? Do we embrace play as a form of inquiry? Do we foster spaces for our graduate students to play or encourage them to do so? Do we rely on play to sharpen our thinking or nuance our analysis? 

To begin, it’s important to distinguish play from other ideas in its orbit; those regularly pulled unwittingly towards it. Play, for instance, is different from creativity. Whereas creativity is about bringing something into existence, play engages the amusement of an activity. Play may lead to creation, but it is rarely undertaken with such practical purposes. A result is that the hubris which often accompanies creativity is all but absent with play. One can imagine on mountain high someone boldly exclaiming “behold how I have created!” One would not expect the same “behold how I have played!” It bears asking if there are times we describe an argument as “creative”, we might more precisely call it “playful” — a playful use of legal materials, for instance.

Play is also different from leisure. A walk over hills with friends, a book club, a drink after work. Leisure is about freedom of time — when unoccupied or otherwise engaged. Children often play in their leisure time; adults seldom do. At the Lauterpacht Centre for International Law, we have a coffee most mornings where the centre’s staff, students, visitors, and academics make a fresh pot and catch up. It’s an incredible, unstructured time to share ideas, musings, and inevitably, in true English fashion, to discuss the weather. It’s a highly valuable moment in the day and I always return to my desk refreshed and with a new question or source to consider. It is, however, more leisure than it is play.

Beyond these distinctions of what play is not, Dutch historian Johan Huizinga, contributes a positive description of play as a “free activity standing quite consciously outside “ordinary” life […] but at the same time absorbing the player intensely and utterly.” I like this description in that it captures how play resides apart of the normalcy of other activities, its absorbing allure, and its constitutive nature. 

So how can play make us better international law researchers? 

I should pause here to note that this post isn’t an extended wind-up to challenge the international law PhD candidates at Leiden University to a game of basketball or provoke Melbourne’s grad students to a bout of extramural charades. Instead, its aim is to reflect on how, as scholars of international law, we can become better researchers through play. And there are, I think, at least two forms of play that can contribute to international legal research: Unstructured and structured play. 

Unstructured play is exploratory, improvised play, that allows for discovery without the strictures of pre-set organization or goals. For many international lawyers, Twitter has felt like unstructured play these past years — less a water cooler conversation and more the chaotic free-flow of a playground. We build castles in our sandboxes (and occasionally experience the violence of a stray football from across the yard). It’s striking how often I’ve met a scholar whose academic imagination was set off by a meandering thread or boisterous set of memes. While Twitter certainly has provided a forum for dialogue, I think what has been so scholastically evocative about its international law space is the permissiveness of play — with senior and junior academics willing to make light in equal measures. But, as Twitter takes on the crumbling feeling of Rick’s Café Americain at the end of Casablanca — with the gendarmes banging at the door — it is important to ask where else we might find unstructured play? Within and across law faculties, I think there is unexplored potential for fostering such play. Might a senior professor, for instance, lob an e-mail on what recipes to include in an international-law-themed cookbook? What ideas might emerge while meditating on the Victoria Sponge (that Philippe Sands reminds us) was often served for Hersch Lauterpacht’s  afternoon tea? Without goal or rules, unstructured play here is about finding ways to say “here are some international legal building blocks, now let’s see what we can make”.  

As far as structured — or more goal-oriented — play is concerned, I think as academics we could engage more often in simulations, mooting, and legal practice, all as playful research. In a course I taught recently on Disasters and Law I had students “lawyer” their way through a novel disaster scenario. While it was a useful pedagogical technique, it also raised new research questions that I hadn’t previously considered. This is indeed one of the great values of play, how it allows you to ask questions you might not have otherwise contemplated. As far as mooting is concerned, as students we moot to learn, and as lawyers we moot to prepare for a hearing, but as academics there are lines of inquiry that could be fruitfully explored through mooting.  So, instead of sober lunchtime lecture series, why not pick up sticks from the yard and see about slaying a dragon? And finally, for the stalwart legal academics, legal practice may be a fruitful form of play. Harold Koh has said that international law academics who don’t seriously engage in practice are like people “talking about baseball without having ever played”. Debates about the merits of a purely academic life aside, a relevant insight I think is how legal practice as play can enliven research perspectives.   

And so, as I say to my child each morning at the nursery drop-off: “be kind, play hard, make a mess”. Here’s hoping that in the weeks and months ahead your research may benefit from unstringing your bows and revelling in the unconscious lightness of play.