“Crits” and the Interdisciplinary Study of International Law


The critical legal studies movement of the 80s and 90s may have left a more profound legacy on international law than we think. Some may say that critical legal theorists pioneered interdisciplinary study of international law. They used the language of politics, sociology, linguistics and other disciplines to attack doctrinal approaches to international law.


Martti Koskenniemi comes to mind first. In From Apology to Utopia: The Structure of International Legal Argument, Koskenniemi keenly identifies that “(t)he dynamics of international legal argument are provided by the constant effort of lawyers to show that their law is either concrete or normative and their becoming thus vulnerable to the charge that such law is in fact political because apologist or utopian” (Koskenniemi, 1990).


He then goes on to criticize existing “rule-based” and “policy-based” approaches to international law and examines the politics of international law in the process of advocacy and argumentation. His point is that any international legal argument which justifies some determined limit on state sovereignty will be vulnerable from “an opposing substantive perspective.” The result is a continuing argument between states. In his words, “(t)he formality of international law makes it possible for each state to read its substantive conception of world society as well as its view of the extent of sovereign freedom into legal concepts and categories…It is impossible to make substantive decisions within the law which would imply no political choice.” Koskenniemi’s solution? For lawyers to venture into “fields such as politics, social and economic casuistry which were formally delimited beyond the point at which legal argument was supposed to stop in order to remain ‘legal'”.


Next, when Phillip Allott assessed the “Health of Nations” and spoke of building “Eunomia”, he was taking an anthropological look at states. He called for an “international law revolution” where an international society of human kind was built before an international law of the same could be built. To him, the language of doctrinal international law, itself, pulled societies further and further away from each other rather than drawing them closer. He implores, “(h)umanity must take command of its future…It will make of itself an international society which is at last a society, a society whose purpose is the survival and prospering of the whole human race.” We also took toward David Kennedy, a Fletcher alum and former Professor, who first took a deep and critical look at international law structures. In one of his latest works, The Dark Side of Virtue, Kennedy takes a sociological view of international humanitarian law. He examines the subject from the eyes of the victim, the enforcer, the bureaucrat and other actors. Finally, he comes to the conclusion that they all have keenly divergent perspectives. One may also add Anthony Carty to this list. In “The Decay of International Law”, Carty utilizes the inherent contradiction between theories of state and theories of law as his basis of criticism. In so doing, readers find him echoing plenty of political theory.


I have two questions:- 1. Where has inter-disciplinary study of international law taken over where the critical legal theorists have left off? 2. What are critical legal theorists up to now? Have they shed their skins and re-invented themselves as constructivists or rationalists etc etc?



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