Symposium on Classism and the International Legal Profession: Three Tactics against Classism in the Epistemic Community of International Law

[Dimitrios A. Kourtis (@DAKourtis) has a PhD from Aristotle University and is an Adjunct Lecturer at the Hellenic Police Academy]

Introduction

When Oscar Schachter wrote his iconic article on the ‘invisible college’ in 1977, the scholars and practitioners of international law were, more or less, a bunch of white male academics situated in what we now call the Global North, well-versed in both English and French and the diplomatic niceties of the international bar. Thirty-six years later, James Crawford, with his usual perceptiveness, stressed that the proliferation of international institutions whose doors are open to individuals truly from around the world would challenge and expand the limits of this college. However, neither Schachter nor Crawford offered a comprehensive account of the inner logic of this supposed college. Perhaps out of a sense of noblesse oblige or class solidarity, neither of them pondered over the essentially bourgeois character of the so-called college and its exclusionary tendencies. In this short contribution, in reaction to and inspired by reading and editing the pieces in this symposium, I will endeavor to discuss some fundamental parameters of the class question in the epistemic community of international law. Then, I will try to articulate certain proposals that could mitigate the consequences of extreme classism, even without a proper revolution that would do away with bourgeois international law and its ‘colleges’ once and for all.

Positionality

The authors that contributed to the present symposium have shown, in one way or another, that positionality is of paramount importance when considering how classism affects the everyday lives of international lawyers. On a more profound level, a class-oriented approach and critique of international law and lawyers cannot remain blind to the inherent limitations of each scheme taken in isolation from the general critical corpus. For example, such concepts as Third World, Global South, gender, race, etc., are all arrows of a greater critical quiver that seeks to uncover the trajectories of subjugation, domination, oppression, and exclusion that the prevailing narratives of international law and international lawyers have promoted, defended, facilitated, and consolidated from the discipline’s founding until our days. Without losing sight of the nuances of each exegesis, we should not turn a blind eye to the all-encompassing role of classism (pp. 63-64). As Nicos Poulatzas aptly noted, the idea of class has many ‘instances’, even if the economic instance remains dominant. If law, including international law, serves a specific social function, constituting the legal subjects qua formally and abstractly equal and free agents who could execute legal transactions, a proper discussion of positionality cannot address only one aspect of this ideal-typical subject.

At first blush, it might seem inapposite to argue that international law constitutes international lawyers as subjects, at least in a distinct and separate sense. One might say that as human beings, international lawyers are constituted as subjects by international human rights law. Still, there is nothing special or unique in this process, particularly pertaining to international legal scholars. However, if we take a second look, we might begin to discern some crucial differences.

Firstly, unlike most human beings, international lawyers have the potential to produce norms either directly, e.g. as diplomatic agents or international judges, or indirectly, e.g. as (literally) a subsidiary source of international law (see Art. 38(1)(d) ICJ Statute). Secondly, despite their individual idioms of international normativity, international lawyers are bound to speak, inter alia,some version of legal positivism or mainstream international law, at least when they address states and—to a greater degree—international courts and tribunals, whose normative language remains bound to the ideas of positive international law, usually avoiding more critical trajectories. For instance, the ICJ, which, more or less, shaped the concept of peremptory law, has not given much thought to the patriarchal or bourgeois legacy of jus cogens, e.g., by questioning why the prohibition of femicides, gender discrimination, or violations of socio-economic rights has not attained a clear peremptory status.

Thirdly, unlike social scientists, most international lawyers study human interaction under a narrow set of forms. For example, states, international organizations, transnational corporations, investors, and international judicial fora (to name but a few), are all forms of human interaction that emanate from the existing capitalist structure of the international arena. This structure becomes even more pronounced if we envisage international law as the law regulating inter-state relations. States as the primary norm-producers are the ‘objective’ manifestations of the hic et nunc political, financial, and social elites, and their institutions usually proliferate exclusionary paradigms, juridifying bourgeois relations. For example, the relative sacredness of the right to property is not counterbalanced with equally robust protection against homelessness. Similarly, despite the lofty language of human rights, international financial institutions are designed to proliferate situations of extreme poverty.

Of course, other forms, including minorities and indigenous peoples, might be premised on alternative visions of global ordering. Nevertheless, most of these forms are usually deracinated from their original collective and political milieu. The antipathy of contemporary international law toward collective rights and the alleged ‘demise of collective identities’ are good examples of how even these alternative forms of human interaction are watered down and become fine-tuned with the prevailing post-collective individualized structures of global capitalism. In this sense, collective rights become entitlements of formally equal legal subjects with a collective contextual element (p. 323), i.e., enjoyed alongside other formally equal agents.  

All three conditions define the positionality of an international lawyer, even beyond their individual doctrinal creed. One might be a critical, positivist, jusnaturalist legal scholar, but one would still have to face the abovementioned limitations. These limitations construe the international lawyer of our century as an interesting admixture of varying degrees of theory placed within a particularly class-oriented background.

Practical Steps or Tactics against Classism

This does not mean that either international law or international lawyers are beyond salvation, bound to replicate and propagate the prevailing understanding of class relations within capitalism. Revolution or a proletarian international law may appear utopian, but it is always possible, no matter how distantly. Until then, it might be helpful to proceed with caution and develop some short- and mid-term tactics in pursuit of a more strategic goal, namely the reconfiguration of class relations within the various ‘colleges’ of international law. In this section, I will address three of these tactics.

• ‘Know your privilege’

There is a tendency to hierarchize privileges or assume a certain degree of severity between them (see, e.g., here). However, this approach is rather simplistic. Lack of one privilege (say, class) may provide a better understanding of another existing privilege (say, race). Furthermore, privileges (e.g., gender, race, and class) tend to correlate and form ‘gray zones’, depending on the degree of interpenetration between the different coordinates of privilege and their impact on the construction of the ideal-typical subject in a given society (e.g. male, white, bourgeois). Thus, without obscuring the paramount importance of such privileges as gender and race, we need to start acknowledging that the visible and invisible colleges are neither gender-/race-blind nor class-blind.

This statement seems relatively trivial, but without a robust acknowledgement of the interplay between the various privileges, we risk indulging in tokenist practices. For example, adopting a proactive policy in footnoting or travel and accommodation stipends for major conferences exclusively based on a strict developmentalist dichotomy between ‘developed’ and ‘developing’ countries of origin elides the considerable gaps (e.g., class, gender) that exist between the potential beneficiaries. Similarly, espousing a monolithic conception of the Global North/South dichotomous line might steamroll the fundamental coordinates of the critical approach that gave expression to this conceptual framework (empire moves, and so does ‘the South’). In the same vein, discussing exclusionary lines, for example, in ICC or ICJ internships and staff appointments, only in geographical or abstract developmental terms ignores the necessity of a more comprehensive strategy of inclusivity, which must encompass but not end with equal geographical representation.

This tactic aims at dismantling the myth of ‘separate yet parallel’ struggles. There is a pressing need to identify (in praxis rather than in theory) the various taxonomies of domination and foster cross-gender, cross-race, and cross-class synergies rather than keep on waging separate fights. By accepting that the struggles are consubstantial rather than just parallel, we acknowledge that ‘the conditions of our lives are connected to and shaped by the conditions of others’ lives’ and, more importantly, that fighting against one chain of oppression may not be enough. For example, would we be satisfied when manels are eradicated but conferences are still exclusionary in terms of race and class? To avoid what bell hooks called the ‘reformist model of liberation’, a neutralization tactic that seeks to frame those fights as bids for a more liberal (but still classist) world, we need to re-imagine all ‘separate yet parallel’ struggles as a continuum of reaction against domination, exclusion, and oppression.

• Solidarity

A vital tactic to fight gender privileges has been developed around the idea of boycotting manferences, manels, or manthologies. Similarly, a significant step toward reducing the gap of ‘muscular humanitarianism’ in legal academia came with the ‘acknowledgement of the local’ (p. 472) as expressed by a mounting pressure to include local, underrepresented, or subaltern voices when discussing major issues of international law, for example, the war in Ukraine. All these tactics, more or less, express a fundamental idea of solidarity—not in the abstract sense, but as a living reality. When senior privileged academics refuse to participate and legitimize a manel or question the elision and silencing of local voices, they do not just express some universal form of solidarity toward fellow human beings. They use their privilege(s) to contest a direct or indirect political choice of exclusion, proliferating a given social barrier. These practices might expand to encompass class and socio-economic obstacles as well. To give a concrete example, the post-pandemic juncture offers a unique opportunity to exercise such practical solidarity against policies that seek to re-animate the said barriers, e.g. by excluding hybridity in conferences, which primarily benefits the academic precariat, including ECRs, caretakers, and persons with disabilities, to name but a few. This tactic takes issue with abstract or rhetorical forms that are not directly translatable into practical action.

Of course, we can all agree that international lawyers should not be discriminated against on class grounds, but this consensus needs to be transformed into a more tangible practice. Otherwise, it is bound to remain symbolic, if not tokenistic. By contesting the classist exclusionary lines through practical solidarity, we can initiate a series of good practices, including the ‘naming and shaming’, boycotting, and delegitimizing those organizations and events that continue to pursue an exclusionary agenda. As these problematic choices might be more widespread than any of us is willing to accept, we must also emphasize the need to establish alternative spaces and initiatives. On the interpersonal level, those colleagues who find themselves in agreement with the basic tenets of this symposium, might have to adopt a more pro-active approach when acting as organizers or convenors of conferences or other events.   

• Empathy and Reflexivity

To address classism in the theory, praxis, and development of international legal scholarship, empathy and reflexivity are necessary. Claiming that class should be dealt with as other, more visible, privileges, including race and gender, should not make us insensible to the nuances of exclusion and trauma or the struggles of our sisters, comrades, and colleagues who consistently fight against racism, patriarchy, or other forms of oppression. By joining our forces, we must seek to dismantle the barriers, not claim some superior status for the oppression, exclusion, or domination that classism produces. Nor is it submitted that, somehow, class overshadows all other existing privileges and lines of exclusion. A cis white man who is part of the precariat, peasant, or working class is still a cis white man who may benefit from both the prevailing patriarchal and racial structures of a given society. Thus, it is essential to leave behind abstract taxonomies that correspond to the various grounds of discrimination under human rights law and fight comprehensively against all forces of exclusion. This tactic aims to communicate a fundamental message of solidarity and support an alternative trajectory. Quite frankly, antagonism between the oppressed primarily benefits the oppressor. Through this tactic, we can consolidate our continuum of struggles without sidelining its various branches. Empathy and reflexivity are thus the raw materials for creating an imagined political (rather than geographical, cultural, or biological) community, ‘a community that is bounded not only by color, race, or class, but crucially by a shared struggle against all pervasive and systemic forms of domination’.

Conclusion

The basic assumption of this symposium is that the discussion about how class affects the lives and struggles of international legal professionals is long overdue. This is neither Schachter’s 1970s nor Crawford’s 2010s. The rise of alternative forms of interaction, including social media, has offered a unique space for communication, socialization, osmosis, and collaboration between international legal scholars regardless of their race, gender, class, or nationality. This development directly challenges the logic of ‘closed clubs’, ‘invisible colleges’, or post-conference exclusive meet-ups, i.e. the fora designed to create barriers rather than demolish them. It allows people who usually face the exclusionary consequences of classism to have their voices heard, communicate their work, and interact with other members of their epistemic community. However, such practices are just a good start.

When dealing with classism, much like racism or sexism, it is not only necessary to ‘give voice’ to those silenced. It is imperative to secure that this voice will not be taken back and that the specific barrier of exclusion that we seek to destroy will not resurface under a new form. For many of us, this might be a struggle against our own assumptions and Weltanschauung (e.g., the phantasm of meritocracy, post-class society, individualism, etc.). But this struggle is the ontological condition for every socio-genesis (p. 14), bearing the potentiality for a new, more inclusive epistemic society. After all, the history of all hitherto human figurations is a history of class struggle.