This article started life as a response to the call for papers for the international Workshop ‘Towards a Radical International Law’, held at the London School of Economics in April 2011. The call for papers started with a bold declaration:
International law is a prominent site for the investiture of hope in the face of global insecurities. Yet, as inequality deepens, violence remains rampant, and the earth’s resources become exhausted, the idioms in which that hope is typically expressed – human rights, development, international crime, and so on – are revealing their complicities and limitations. Some radical rethinking of international law seems urgently needed.
In this article I explore some answers to the question whether there could or ought to be a radical international law, or even, more modestly, a radical approach to international law. Paavo Kotiaho has referred to ‘the left wing international law project’. It should be noted at once that the literature generated by this project is almost entirely in the English language, and the object of my analysis in this article is that which is to be found in Britain and the USA.
My own answer to the question is that almost all ‘critical’ or ‘radical’ international law is firmly located in the academy, or the ‘discipline’ or the ‘field’ as it is often called. It is often marked by eclecticism and the closely related pragmatism which traditionally emanates from the United States, just as British mainstream thinking is often termed ‘empiricism’.
So what we have is the latest in a series of attempts to shake up or to re-frame the theory of international law. However, there is a plain disjuncture between on the one hand those with a professional and career interest in renewing the scholarly community, and on the other those who wish to apply their legal skills to the service of progressive causes.
In this article I criticise the part of this large corpus of scholarly work which I have selected in some detail, on its own terms. There is a striking, for me, absence in almost all of this work. That is, the ‘radical international law’ pursued by organised engaged political lawyers, especially since World War II in the form of the International Association of Democratic Lawyers (IADL), on the basis of the organisation of politically active lawyers in a large number of states – for example, the National Lawyers Guild in the USA and the Haldane Society of Socialist Lawyers in England.
Critical scholars and activist lawyers: a continuing disjuncture
This is exemplified in both the United States and in Britain. In the United States, critical scholars have positioned themselves in Critical Legal Studies during the 1980s, and latterly in New Approaches to International Law (NAIL) and Third World Approaches to International Law (TWAIL), of which more below.
Activist practitioners on the other hand have organised and still do in the National Lawyers Guild, founded in 1937 and in 2012 celebrating “75 Years of Law for the People”; and in the closely associated Center for Constitutional Rights. CCR litigates in the US courts, and its victories have established major legal precedents, from Filártiga v. Peña-Irala which opened U.S. courts for victims of serious human rights violations from anywhere in the world, to NOW v. Terry which established a buffer zone around abortion clinics. There is very little interchange or cross-fertilisation between these two camps.
Critical legal studies in Britain
The disjuncture mentioned above is exemplified by the history of critical legal studies in Britain. The journal Law and Critique, edited in the Birkbeck Law School, continues to publish a wide range of critically-inclined theoretical scholarship. The annual Critical Legal Conference has long outlasted its US counterpart and each year continues to take place at a different campus, including recent conferences in South Africa, India and Finland. A small but consistent group of legal scholars identify themselves with the journal and conference.
Theoretically, both the journal and the conference are highly eclectic. Marxist or Marxian scholarship is a continuing but relatively very small component, with many more scholars motivated by post-modernism in various forms. The latest manifestation of this school is entitled New Critical Legal Thinking: Law and the Political. In two of the chapters politics are discussed by reference to Giorgio Agamben’s oevre. The political does not include legal activism. A London-based web-site, Critical Legal Thinking, Law & the Political, established in 2009, is also a showcase for the flourishing of a hundred schools of thought. It describes its purpose with a grand flourish:
This is our time, the time of protest, of change, the welcoming of the event. Critical (legal) theory must be re-linked with emancipatory and radical politics. We need to imagine or dream a law or society in which people are no longer despised or degraded, oppressed or dominated and from that impossible but necessary standpoint to judge the here and now. (Legal) critique is the companion and guide of radical change.
The Critical Legal Conference for 2012 will take place in September in Stockholm, and its unifying theme and focus is “Gardens of Justice. Critical scholars are invited to explore:
a plurality of justice gardens that function together or that are at times at odds with each other. There are for instance well ordered French gardens, with meticulously trimmed plants and straight angles, but that also plays tricks on your perception. There are English gardens that simultaneously look natural – un-written – and well kept, inviting you to take a slow stroll or perhaps sit down and read a book. There are closed gardens, surrounded by fences, and with limited access for ordinary people. There are gardens organized around ruins, let’s call them Roman gardens, where you can get a sense of the historical past, but without feeling threatened by its strangeness. There are Japanese stone gardens made for meditation rather than movement. There are zoological gardens, where you can study all those animal species that do not have a proper sense of justice, no social contracts, no inequality and social injustice, and no legal systems. There is, indeed, the Jungle, a real or imaginary place outside the Gardens of Law.
In an article placed on the Critical Legal Thinking site, Paul O’Connell offered one interpretation of this theme, one which tells us something about the current state of critical legal scholarship (and perhaps critical scholarship more generally). In his view, it is an indictment of the critical legal project:
… (movement seems a wholly inappropriate term at present). At a time at which global and national elites are engaged in an unprecedented assault on the living conditions and rights of working people, when democracy, even in its ‘low intensity’ form, is in retreat, the leading lights in critical legal inquiry are retreating into the gardens of their own imagination, and abandoning the less pristine, less genteel footpaths and public squares of politics.
Such criticisms are not new, of course.
CLS in Britain and its critics
The CLS movement in Britain may be traced in the books published over the years by the managing editor of Law and Critique and leading figure in CLS, Costas Douzinas, who has moved intellectually from Jacques Derrida in 1991, to Emmanuel Levinas in 1996, to Ernst Bloch in 2000, to Slavoj Žižek, to Jacques Lacan and psychoanalysis, and most recently to Carl Schmitt and his disciple Giorgio Agamben in 2007. The theoretical outlook of the CLS in Britain, including its take on Marxism, is well summed up in Douzinas and Gearey’s Critical Jurisprudence.
But it is hard to escape the conclusion that CLS in England has been devoted more to eclecticism and the encouragement of approaches such as law and literature, than to any radical political critique. In 1999, Peter Goodrich, one of the movement’s founders, published an acerbic critique. His position, as summarised in his abstract, was as follows:
Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory – has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reﬂection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome.
Akbar Rasulov, too, has provided a powerful critique of the influence of poststucturalism in international law. He concludes as follows:
What is going to be the effect of the poststructuralist intervention in international law? Will it be to encourage international lawyers – by reminding them that now, as ever before, everything in the international arena is only a transient product of a contingent combination of traces and hegemonic self-exertions – to experience their everyday work as an ongoing exercise of power? Or will it be to discourage all but the most dedicated of them, with its confusing vocabulary and uncritical interdisciplinarism, from performing any other kind of intellectual operations than a linear explication of the established dogma? Or will it, perhaps, simply tire them with its dogged insistence that the existing tradition is too outdated and a new method has to be created?
Despite Douzinas’ recent forays into the critique of human rights, international law, with the exception to which I turn below, was rarely the focus of CLS conferences. Antony Carty was an exception, during the 1990s.
Critical legal scholars and radical lawyering
A more serious problem, in my view, was the failure of the Critical Legal Conferences to engage with the rather strong tradition of left political lawyering in England. I have in mind political lawyers engaging in radical legal practice. There is also a long tradition of lawyers who have played vitally important roles in other capacities.
A very good example for me – so please forgive me a perhaps extraneous paragraph – is the barrister Samuel Moore, who translated into English the Communist Manifesto and most of Volume One of Capital. He was born in 1838, and having failed as an owner of a cotton mill, became a barrister at the age of 40, practising in Manchester. He was Friedrich Engels’ closest English friend, and although he became a member of the International Working Men’s Association in 1866, having been on holiday with Engels the previous year, he was not politically active, save for his monumental work of translation of Capital, especially in 1883-4, after Marx’ death. He translated the Communist Manifesto in 1887. Like Engels, his revolutionary views did not prevent him accepting very un-revolutionary employment, from 1889 to 1899 as Chief Justice of the territories of the Royal Niger Company (now Nigeria). He delivered a tribute at Engels’ funeral, and died in 1911. There was no lawyers’ organisation to which he could belong.
Here is an example of organised politically active lawyers. The Haldane Society of Socialist Lawyers was founded in 1930, as an organisation of lawyers active in the Communist Party and the left of the Labour Party. It is proud to have been ‘a legal thorn in the side of every government, lobbying for law reforms, civil liberties and access to justice for all; supporting national liberation movements against colonialism and campaigning against racism and all forms of discrimination.' It has always worked closely with the National Council for Civil Liberties (founded in 1936, now named Liberty) and with the Trade Union movement. The Society never saw itself as an independent political force, nor did it conceive of law as inherently revolutionary or as capable of being moulded into revolutionary theory; rather, it saw the role of politically active lawyers as serving the interests of the working class and the oppressed.
Haldane lawyers were particularly active in support for the miners in their strike in 1984-1985, and proudly provided services to the National Union of Mineworkers. Members re-located to Yorkshire, Nottinghamshire and elsewhere, providing free representation, and becoming familiar figures in the magistrates’ Courts (which frequently sat through the day and the evening). They consistently campaigned for human rights in Northern Ireland and against internment without trial. They challenged the miscarriages of justice experienced by the Guildford Four, Birmingham Six, Judith Ward and others. They were also instrumental in calling for a public inquiry into the Bloody Sunday massacre and represented the families and survivors at the Inquiry.
Internationally, members of Haldane provided free legal assistance to the African National Congress (ANC) and South West Africa People’s Organization (SWAPO) members throughout the long years of the struggle against apartheid, and regularly picketed South Africa House. And they were active in the IADL.
Furthermore, the Haldane Society has succeeded in attracting new generations of campaigning lawyers, publishes its journal Socialist Lawyer several times a year, and young Haldane lawyers represent defendants accused of public order offences, and provide monitors for anti-fascist and anti-racist demonstrations.
In the late 1980s there was an attempt to organise the Critical Legal Conference jointly with the Haldane Society at Kent University, itself a stronghold of radical legal critique. But the critical scholars and engaged lawyers struggled to find a common language. Instead, Haldane members have participated enthusiastically in the student-organised conference of the Critical Legal Groups, which have brought together radical practitioners and scholars, with a much more overtly left political agenda than the CLC.
The Critical Lawyers Handbook, published in 1992, brought together scholars and practitioners, and published my own first short essay, “Socialism, Liberation Struggles and the Law”. The themes of that essay were concretised and extended in my own 2008 book, and the 50th anniversary edition of Socialist Lawyer carried a review by Richard Harvey, a barrister with a proud record of political lawyering in Northern Ireland, and now a defence advocate at the Yugoslav War Crimes Tribunal, the ICTY. But the Handbook was not at all a product of the CLC project.
There was one attempt at a joint conference of the CLC and the Haldane Society in the early 1990s, which was memorable for a sharp clash between John Fitzpatrick, then Revolutionary Communist Party, and Stephen Sedley, before his appointment to the High Court Bench. But the critical scholars and the radical lawyers were oil and water, or chalk and cheese: there was no cross-fertilisation or even mixing. I helped to organise Critical Legal Conferences at University of East London in 1995 and at the University of North London in 2001, both with Marxist streams and a few practitioner-activists; but the predominant tone was eclecticism.
The international dimension of political lawyering
Both the National Lawyers Guild and the Haldane Society of Socialist Lawyers are member organisations of the International Association of Democratic Lawyers. Awareness of the existence of the IADL and of the tradition of active political engagement of legal practitioners and scholars (more the former than the latter) is almost entirely lacking from the many works of critical scholars.
The IADL was founded on 24 October 1946 in Paris by lawyers from 24 countries. It remains active, despite the loss since 1991 of the substantial subsidy it received from the USSR and from, for example, the Algerian FLN – which paid for a headquarters building in Brussels and staff. Now organised through the internet, its XVI and XVII Congresses took place in Paris and Hanoi respectively in 2005 and 2009. Its website gives details of its many activities and campaigns.
Rene Cassin, a drafter of the Universal Declaration of Human Rights, was named the first IADL President. During the Cold War it was regularly identified and condemned as a Soviet front organisation, which in many ways it was, and its member organisations included the Association of Soviet Lawyers and lawyers’ organisation from all the socialist countries, but also strong organisations in the USA (the National Lawyers Guild, still very active), Latin America, Japan, India, many African countries, and Western Europe. It supported and participated in the liberation movements and the struggles of the peoples of South Africa, Angola, Guinea Bissau, Kenya, Mozambique, Namibia, Northern Ireland, Puerto Rico and elsewhere on the globe.
William Twining has noted:
During the early years of the Cold War the International Commission of Jurists promoted the Rule of Law and civil and political rights… in counterpoint with the International Association of Democratic Lawyers, who supported anti-imperialist movements and social and economic rights.
It should be noted that the ICJ was financed initially and until 1967 by the CIA, through the American Fund for Free Jurists, but the CIA’s role was not known to most of the ICJ’s members.
Indeed, the IADL played an important role in promoting the right of peoples to self-determination which I have described as ‘the revolutionary kernel of international law’; the enshrining in international law of the principles formulated by Marx and Engels in the second half of the 19th century, and developed by Lenin in the period immediately before the First World War. Through the bloody struggles for decolonisation which followed World War II and came to a peak in the 1960s, these principles became a legal right as common article 1 to the two International Covenants on human rights of 1966.
The violent hostility from mainstream Western scholars towards the IADL was exemplified in an extraordinary article published in 1960 by Professor Elliot Goodman of Brown University and author of The Soviet Design for a World State. Goodman ignored the contributions of Marx, Engels and Lenin, turned history on its head, and declared:
The idea of national self-determination, fathered by political theorists like Mazzini and Wilson, is, of course, Western in origin. But in an age of nation-building in the Afro-Asian world, skillful Soviet use of this concept presents Western diplomacy with a formidable and continuing challenge in the East.
He acknowledged that:
As a result of Soviet initiative, the issue of self-determination for non-self-governing peoples became enmeshed in the numerous deliberations on human rights. Basic to the enjoyment of any human rights, the Soviet delegates insisted, is the right of national self-determination, which must be realized in the colonial and non-self-governing territories of the West.
By 1952, said Goodman, “It was abundantly clear that the venerable complex of ideas associated with national self-determination had been fashioned into a blunt political weapon by a Soviet-Afro-Asian entente.” That is, of course, by an alliance of the USSR with those countries which had already fought their way out of colonial domination.
I repeat that these political struggles, encompassing the planet as a whole, and forever changing the content of public international law, are beyond the horizon of almost all scholars of international law.
An attempt to bring politics back into CLS: The 2008 Critical Legal Conference
Recently, there was a remarkable, hitherto unique, attempt to extract revolutionary potential from the CLC. The 2008 conference took place at Glasgow University in September 2008, and was organised by the Marxist international legal scholar Akbar Rasulov. He brought about a visit by the Indian scholar B. S. Chimni, who delivered a provocative keynote speech entitled ‘Prolegomena to a Class Approach to International Law’. He is well known as a leader of TWAIL – see below – and the author of the splendid International Law and World Order: A Critique of Contemporary Approaches, which argued that ‘Marxism still constitutes the most beneficial vehicle for the humanistic grounding of a new jurisprudence’.
In 2007, Chimni published, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ . He declared that ‘A third world approach to international law, or TWAIL as it has come to be known, represents in general an attempt to understand the history, structure and process of international law from the perspective of third world states.' His ambitious project was ‘… that the discipline of international law be transfigured. International lawyers must, going beyond human rights law, consistently engage with the existential world of the global poor and oppressed. Ordinary life must become the focus of the entire discipline of international law.' It is clear that by ‘discipline’ he meant legal scholars. However, this sophisticated article, although full of references to Douzinas, Agamben, Foucault and others, did not mention self-determination or Lenin, despite the fact that, as Pheng Cheah points out, Lenin’s principled commitment to the “right of nations to self-determination” which he worked out before World War I and put into practice following the Bolshevik revolution, was the inspiration for Fanon and many others.
The 2008 keynote speech, published in 2010 by the European Journal of International Law, proposed a ‘class approach to international law’, to get away from the state-centred mainstream, and to focus ‘besides states on social groups and classes which are shaping and have historically shaped international law…’ This will enable “international lawyers to practise the discipline of international law as if people mattered.”  Thus, he was speaking to scholars of international law.
He introduced a taxonomy of class: he refers to a ‘Transnational Capitalist Class’ (TCC) and a ‘congealing’ ‘Transnational Oppressed Class’ (TOC).
In his view, a class approach would not require adherence to Marxism, but would be perfectly compatible with the views of Weber, Durkheim or Bourdieu. He cited Lenin as to the definition of class, but not at all in relation to self-determination or anti-colonialism. Again, self-determination was nowhere to be found. Chimni’s proposals were directed entirely to the scholar, allowing greater understanding, new perspectives, and ‘…a class approach allows the rethinking of the liberal conception of international rule of law and its complex and contradictory relationship with the idea of global justice.' This is, therefore, an armchair exercise. Nowhere do we find the revolutionary content of post WW II international law, transformed by anti-colonial struggle; nor a single word about the role of the politically engaged lawyer.
An extended version of Akbar Rasulov’s response has been published (2010) in the Finnish Yearbook of International Law. Rasulov neatly sums up his perspective as follows:
Done correctly, a class-analytic re-theorization of international law can supply the international law CLS community not just with a new brilliant theoretical apparatus, but with an apparatus that could give us both a highly effective instrumentarium for debunking any number of rightwing ideological mystifications and a highly reliable analytical platform for constructing practically implementable counter-hegemonic strategies.
That is, he wants to provide scholars with more effective weapons for intellectual critique. He was, of course, addressing a CLS conference audience.
Rasulov recognised the absence of practice from the project, confronting the problem, which he described as ‘abominable’, with frankness which is typical of Rasulov but highly unusual in the international legal scholarly community:
… where a generation and a half ago, most of the practical momentum in the international law leftwing projects came in the fields of international diplomacy and political activism, a vast majority of all leftwing efforts in international law today are limited to the field of academia… We have lost every connection our predecessors’ predecessors had with the world of activist politics and practical diplomacy.
His critique pulled no punches:
The global class structure has long immunized itself against any destabilizing action that could come from the esoteric writings of a marginalized group of Western academics, especially as disorganized as the international law CLS people are.
But he seemed not to be aware of the continuing energy and commitment of political lawyers in many countries of the world, despite being in receipt of copies of Socialist Lawyer.
The allure of David Kennedy and Cambridge (Harvard, that is)
David Kennedy’s work is a significant point of reference for Susan Marks especially in her recent work, and she describes him as ‘… one of the most influential and inspirational people writing on international law today…’.
Akbar Rasulov too has a special affinity to David Kennedy. He can be highly critical of Kennedy. For example, in his critique of poststructuralism to which I referred above, he stated:
Take, for instance, David Kennedy’s International Legal Structures. What is this book about? What does it try to say? That you can think of international law as a canon of rhetorical moves? That the discourse of substance always refers us back to the discourses of process and sources? That legal aporia is ineradicable and that it is precisely because of this that international law has managed to retain its importance in modern politics? Some books are just impossible to sum up.
But he refers approvingly to one of Kennedy’s seminal works, ‘Thinking Against the Box’, as well as to Kennedy’s wry comments on postmodernism:
I just do not think law is like that. It does not have [any of those] qualities of fixity, order, meaning, or identity [which the cultural critics ascribe to it.] . . . Of course we certainly operate with ideas that sometimes seem very crude to a postmodernist [but] if the challenge raised for lawyers . . . is that we should get hip to postmodernism as a compelling description of the contemporary social scene and a cool way to be, I guess my answer would be . . . we lawyers have [already] been postmodern for a while.
This passage epitomises Kennedy’s engagingly discursive and familiar style, his appearance of plain talking and easy sophistication. David Kennedy’s work is a significant point of reference also for Susan Marks, especially in her recent work, and she describes him as ‘… one of the most influential and inspirational people writing on international law today…’. However, in 2010 Rasulov provided, for a Glasgow University workshop entitled The ‘New Stream’ Twenty Years On: A Critical Genealogy, a contribution entitled ‘Newstream: A Critical Genealogy’. He declared:
In trying to work out the Newstream’s basic trajectory, I drew heavily on various conversations with David Kennedy as well as his remarkable (and shockingly underrated) Thinking against the Box…in particular section IV(c) thereof.
Nevertheless, in his response to B. S. Chimni,. Rasulov proposed an accurate criticism of Kennedy:
To be sure, scholars like David Kennedy have done some very interesting work in this area. The Dark Sides of Virtue is probably one of the most important books written on international law in the last twenty years But as inspiring and thought-provoking as it may be, I don’t think it provides anything near what would be a rigorous, comprehensive explanation of this phenomenon – and that, by implication, puts a very considerable limit on its practical convertibility for the purposes of the international law leftwing project.
This is in fact a rather damning critique. Note that Kennedy’s work does not even provide ‘practical convertibility’ for the purely academic project, much less for any political activity outside academe. Highly intelligent and provocative Kennedy’s work may be – but inspiring?
So, what is to be found in ‘Thinking Against the Box’?
In this essay, David Kennedy constantly reflects on “the discipline” and even “disciplinary renewal”. These words and phrases have a somewhat monastic flavour, and this is no accident. What Kennedy really has in mind is the order of established professors of international law, especially at Harvard, and also at Yale and Columbia.
Thus he explains that ‘Disciplinary renewal – no less than disciplinary stasis – can best be understood as a complex interaction among groups of individuals pursuing intellectual, political, and personal projects.' To me, this has nothing to do with international lawyers. It is something parasitic. These projects are by necessity tied to individual careers and academic advancement.
My attention was drawn straight away by Kennedy’s analysis of the history of the discipline, in the early pages of the article. The period after WW I was presented by Kennedy as entirely a debate within the American academy. There was no mention at all of self-determination, much less Lenin or the Russian Revolution.
Thus, we find the following:
Throughout this period, however, there were also dissident voices urging a less formal, more embedded law as a better expression of political reality and as an expression of a higher, more integrated international community. These voices were strongest in the anxious period just after the First World War, when the discipline was most resolute in rejecting the legacy of the Hague System set in place at the end of the nineteenth century and seen to have failed in 1914. They were often associated in the United States with political science rather than law, with progressive Wilsonianism, with support for the League, and with interest in international organizations more generally.
The Russian Revolution therefore did not take place or at any rate was not worth noticing; there was no rise of Fascism and then Nazism, no Japanese imperialism. Academe in the USA was securely sheltered from the storms affecting the rest of the planet.
When Kennedy turned to the period after the Second World War, there was no mention at all of the Cold War or of anti-colonial struggles. Instead, we learn that by 1960 – a crucial year for the wars of national liberation, but also of the great Resolution 1514(XV), the anti-colonial declaration – the discipline had evolved as follows:
… the post-war generation of international lawyers and academics had established two new schools of thought between which international lawyers in the United States then arranged themselves for a generation. At an intellectual level, this dramatic reorganisation is perhaps the most striking instance of new thinking and disciplinary renewal in the last century.
That is, new thinking and disciplinary renewal had nothing whatsoever to do with what is happening outside the Ivy League. Kennedy explained that the two new schools of thought were the Yale School, the ‘policy school’ of Harold Lasswell and Myres McDougall, who trained so many leading international lawyers including Rosalyn Higgins and Richard Falk; and in the opposite corner of the ring, the Columbia School led by Louis Henkin and Oscar Schachter. Just as in the pre-war discipline, there was a ‘positivist mainstream’ and a ‘naturalist counterpart’. These Schools had some purchase on the world outside; while Yale ‘typically’ gave full support to the US fight against the Communist spectre, promoting a ‘world order of freedom’, Columbia was more interest in cooperation, Peaceful Coexistence, and the formulation of procedural rules binding on both superpowers.
So, for Kennedy, ‘people in their forties’ began to develop a new mainstream approach to ‘the field’ (a synonym for the discipline), under the banners of ‘transnational law’, ‘the legal process’, or ‘liberalism’. Note that these ‘people’ inhabited a tiny group of elite universities.
Kennedy identified dissident voices – and named Allott, Berman, Carty, Charlesworth, Chimni, Chinkin, Engle, Frankenberg, Hernandez, Koskenniemi, Langville, Mutua, Onuma, Paul, Tarullo and Valdes – great names all, and many of them from outside the USA even, but a highly eclectic list all the same.
And in a long footnote he explained his view of his differences with Martti Koskenniemi as to the ‘rhetorical patterns’ of ‘the field’. He identified a ‘central disciplinary problem’, how to have law among sovereigns, with his own approach identifying “a deep incoherence’ in the discipline, arising from tensions between respecting sovereigns and governing them, between autonomous law and effective law, and ‘hard’ and ‘soft’ law. Koskenniemi, for him, was more dynamic, seeing a repeated movement from apology to utopia. In an admission offered on behalf of himself and Koskenniemi (with permission?), he concluded:
The only accounts we offered of the movement forward were vague psychological insinuations that people would keep working to relieve the anxiety of the ambivalence, suggestions that the language of the discipline had an internal formal logic propelling it along, or the assumption that international lawyers had to propose reforms the way that birds have to fly – it is what they do. …
To which the only conceivable response is – why bother?
However, there is a further point of interest in Kennedy’s article. His text was haunted by the figure of the ‘practitioner-being’ – a very odd title indeed. This person appears when Kennedy discusses the way in which most scholarly work in the international law field presents itself, proposing viable improvements. Kennedy continued:
The key here is that there is another group of people, called “practitioners”, for whom scholars are doing this work and who will judge its persuasiveness and ultimate value. However argumentative and critical this work may be, it will ultimately be judged not by other scholars on the basis of its arguments, but by practitioners on the basis of its usefulness. When scholars do judge this sort of work, they do so by reference to the often imaginary eye of the practitioner.
He conceded that these ‘practitioners’ may very well be the academics themselves. How are these “practitioner beings” seen by those who find in them arbiters? The following passage was perhaps intended to be ironical:
Nevertheless, when practitioner-beings assess things, they do so with their eyes wide open, unaffected by the fashions and egos that can befuddle scholars. Their focus is relentlessly on the real world where the rubber meets the road, and it is their judgment, or predictions about their judgment, that guarantees the pragmatism and political neutrality of the field’s development.
These odd creatures, or rather imaginary beings or even avatars, were as far as they could be from engaged politically-minded international lawyers.
And what of section IV (C), about which Akbar Rasulov enthused? Section IV is headed ‘Critical Performativity: New Approaches to International Law’, while C, the final part of the article, is entitled ‘The Project: Making New Thinking and Making It Known’. What is this ‘new thinking’? First, however, Kennedy gave us a lengthy autobiography, including how he achieved tenure at Harvard. In particular, when he established NAIL, he wanted to differentiate the new group from ‘critical legal studies’, which seemed to his students ‘at once passé, dangerous, too politicised, too much associated with a “line” of some sort.’ In short, I think, it might have seemed to them to be quite the wrong thing for making a career in international law. And not really the done thing at Harvard. The choice of epithets is rather revealing.
He closed the NAIL project down quite deliberately in 1998. What, writing in 2000, did he have to offer for the future? In his view, a project like NAIL must have ‘… a shared sense that description matters, that things are terribly misrepresented, and that correcting, changing and influencing what is understood, what is seen, what can be asked, can be a matter of passion and politics.’ This sounds to me like a thoroughly idealist way of behaving, and as far from politics as possible.
The politics of Martti Koskenniemi
In my 2008 book I noted how Susan Marks cited the words of Martti Koskenniemi to the effect that international lawyers would be better advised to search for “more concrete forms of political commitment” which might “engage them in actual struggles, both as observers and participants, while also taking the participants’ self-understanding seriously”. I could see why she empathised. Koskenniemi, more than most international legal scholars combines theory and practice. Furthermore, he occupies a central position for the discipline: for Paavo Kotiaho he is
… an initiator of the discursive practices of the left-wing international legal project, who consequently not only gives rise to the possibility of future projects, but also sets the ‘rules of formation of future texts’.
So the publication of a collection of his essays under the title The Politics of International Law is especially welcome.
Chapter 11 is a revised version of work cited by Akbar Rasulov, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’, first published in 1999. This article was inspired by Bourdieu’s work The Force of Law, to which I turn below. It was ‘… an attempt towards a sociology of the international law as a profession.’ He had himself found that international lawyers ‘… almost invariably see themselves as “progressives”, whose political objectives… [include] globalisation, interdependence, democracy and the rule of law.’ 
Having discussed the roles of the international Judge and the government legal Adviser, Koskenniemi turned to the Activist. ‘The activist participates in international law in order to further the political objectives that underlie his or her activism. The principal commitment of the serious activist is not to international law but to those objectives.’ In Koskenniemi’s view, the lawyer activist who fails to ‘think like a lawyer’ and to ‘internalise the law’s argumentative structures’ will inevitably be marginalised.
Finally, he considered the Academic, ‘whose position is much less stable than that of the activist or the adviser.’ He continued:
Moreover, legal indeterminacy may occasion a doubt about the academic pursuit altogether; is not law precisely about the daily practice of political/government decision-making, weighing pros and cons in a world of limited time and resources, and not about the academic’s abstract norms?
And, in this essay, Koskenniemi was distinctly wary of anything like revolutionary enthusiasm. There will, he thought, be a nasty hangover the following day. In the final essay of the book, ‘The Fate of Public International Law: Between Technique and Politics’, first published in 2007, Koskenniemi made a declaration of faith – in international law.
I often think of international law as a kind of secular faith. When powerful states engage in imperial wars, globalisation dislocates communities or transnational companies wreak havoc on the environment, and where national governments show themselves corrupt or ineffective, one often hears an appeal to international law. International law appears here less as this rule or that institution than as a place-holder for the vocabularies of justice and goodness, solidarity, responsibility and – faith. 
In this, Koskenniemi was remarkably close to David Kennedy, whom he also cited with approval, and for the most part the bloody military reprisals of the colonial powers and the immensely paradoxical diplomatic and financial effort on the part of the USSR which both gave content to the anti-colonial struggle as waged by lawyers were entirely missing from his text. But there was one passage on self-determination, buried away in a rather abstract discussion of instrumentalism and formalism, which to some extent resonates with my own position – even if Koskenniemi, like so many of his peers, entirely left out the political content, including Lenin’s contribution to the theory and practice of the ‘right of nations to self-determination’:
… ‘self-determination’, typically, may be constructed analytically to mean anything one wants it to mean, and many studies have invoked its extreme flexibility. Examined in the light of history, however, it has given form and strength to claims for national liberation and self-rule from the French Revolution to decolonisation in the 1960s, the fall of the Berlin Wall, and the political transitions that have passed from Latin America through Eastern Europe and South Africa.
The revolutionary content of post-WW II international law
My own position is that international law is indeed a special case, quite different from domestic law. There are serious arguments, drawn from English positivism (Austin) and international-relations ‘realism’, as to whether there is any such thing. It is my contention that the international law to which Martti Koskenniemi referred as the ‘gentle civilizer of nations’ or for an imagined and reactionary version of which Carl Schmitt had such nostalgia, and of which the USSR had throughout its existence such a rigidly positivist account, was thoroughly transformed in the post-World-War II period. The creation of the United Nations by the victorious powers – all the permanent members of the Security Council with the exception of China were colonial powers at the time – was almost immediately subverted and transformed by the bloody and tumultuous anticolonial struggles. This, I repeat, is why I describe the right of peoples to self-determination as the revolutionary kernel of international law.
It is my case that the working-out of struggles for this right dominates the international agenda to this day.
The same considerations inspire my materialist account of human rights, which starts with the identification, itself nothing new, of three generations of human rights, each with its inception in the revolutionary events of the 1780s, of the years following 1917 and, especially, of the great anticolonial struggles of the post-World-War II period. Each of these inspiring revolutionary events and the rights associated with them – the civil and political rights of the French Revolution, the social and economic rights of the Russian Revolution, and the third-generation rights, crowned by the right of peoples to self-determination – make available to succeeding generations a ‘symbolic capital’ upon which each may draw. That is where my account resonates with Koskenniemi’s ‘form and strength’ in the citation above.
In this way, the rights in question, at first glance no more than forms of words, mere rhetoric, acquire material force when mobilised in struggle. This is what I meant by ‘. . . their proper status as always scandalous, the product of, and constantly reanimated by, human struggle.’
Bourdieu’s theory of law and lawyering
As I mentioned above, David Kennedy acknowledges Pierre Bourdieu’s powerful essay The Force of Law: Toward a Sociology of the Juridical Field but without analysis, and, as it were, placing it together with Foucault’s oeuvre. I start this section with Bourdieu’s pithy critique of Marxist engagements with law. Bourdieu engaged with E P Thompson, and argues that:
The architectural metaphor of base and superstructure usually underlies the notion of relative autonomy. This metaphor continues to guide those who believe they are breaking with economism when, in order to restore to the law its full historical efficacy, they simply content themselves with asserting that it is “deeply imbricated within the very basis of productive relations.” This concern with situating law at a deep level of historical forces once again makes it impossible to conceive concretely the specific social universe in which law is produced and in which it exercises its power.
Bourdieu was no Marxist, but rather a follower of Weber; but there is merit in this criticism. However, for me the most striking contribution of this essay is Bourdieu’s characterisation of the legal field, and the inevitable destiny of academic critics. He was much more acute than, for example, Peter Goodrich. Bourdieu was interested in the ‘social practices of law’, which he saw as being the product of the functioning of the ‘field’, namely the ‘area of structured, socially patterned activity or ‘practice’, in this case disciplinarily and professionally defined.’ The ‘field’ is characterised by a specific logic which is determined by two factors. First, there are the specific power relations of all its participants – judges, practitioners, academics – which give it its structure. Those power relations order the competitive struggles, or conflicts over competence, between its participants. The second factor is the ‘internal logic of juridical functioning which constantly constrains the range of possible actions’ for its participants, and ‘limit the range of specifically juridical solutions’.
Bourdieu further specified that this juridical ‘field’ is indeed the site of ‘competition for the right to determine the law’. This competition takes the form of a confrontation between participants ‘possessing a technical competence which is inevitably social’, and which ‘consists essentially in the socially recognised capacity to interpret a corpus of texts sanctifying a correct or legitimised vision of the social world.’ Thus, law functions through its ability to provide the ‘common sense’ of non-legal members of society. Bourdieu put it this way:
It is essential to recognize this in order to take account both of the relative autonomy of the law and of the properly symbolic effect of “miscognition” that results from the illusion of the law’s absolute autonomy in relation to external pressures.
That is how Bourdieu explained the tension in law between ‘formalism’ and ‘instrumentalism’. In the final analysis, law is to an extent a closed system, developing according to its internal dynamics; and it has the capacity to fool the public into believing that it is really independent from political, economic and social power. Law also has the capacity to incorporate its lawyer critics, and in a footnote Bourdieu explained that
… even the most heretical of dissident legal scholars in France, those who associate themselves with sociological or Marxist methodologies to advance the rights of specialists working in the most disadvantaged areas of the law (such as social welfare law, droit social), nonetheless maintain their commitment to the science of jurisprudence.”
That is precisely what I identified above. This has the following depressing effect. For Bourdieu, the function of law in maintaining the symbolic order is not the result of an intervention of external power, but on the contrary the result of innumerable actions by the whole range of participants who do not at all intend to implement that function of law, and may very well be entirely subversive in their motivation.
Thus, for example, the subversive efforts of those in the juridical avant garde in the end will contribute to the adaptation of the law and the juridical field to new states of social relations, and thereby insure the legitimation of the established order of such relations.
That is the fate of the academic lawyer.
What are lawyers – academic and activist – to do?
I am with Paavo Kotiaho when, in his powerful critique of Koskenniemi, he cites with approval Robert Knox:
…. we ought not to turn to the ethical prescripts advocated by Koskenniemi above, but rather follow the tactical guidance given by Robert Knox, and recognize that
The shape of the legal form means that pursuing a legal strategy can break up collective solidarity, and renders progressive forces unable to address the systemic causes of social problems. Indeed, to mount a legal strategy is to risk legitimating the structures of global capitalism […] International law, then, must never be pursued because it ‘is law’, but only insofar as its content can advance the aims of progressive constituencies. What must be pursued is a ‘principled opportunism’, where – in order to undercut the individualizing, legitimating perspective of law – international law is consciously used as a mere tool, to be discarded when not useful.
In his concluding paragraphs, Kotiaho calls for a Marxist analysis of international law, but does not join China Miéville and Robert Knox in following Evgeny Pashukanis’ writings of the early 1920s. I have engaged critically both with Pashukanis and with Knox’s take on him in the three texts cited in this article, and will not repeat my arguments here.
Suffice it to say that I am continuing to research Pashukanis’ early work for a forthcoming book Law, Rights and Ideology in Russia, and I maintain that Pashukanis, writing in the period of NEP (New Economic Policy) in Soviet Russia with its qualified return to a market economy, foregrounded the persistence of bourgeois law in Russia and thus entirely missed the revolutionary content of the right to self-determination. He became an enthusiastic (uncoerced) supporter both of ‘socialism in one country’ and of ‘peaceful coexistence’, eulogising Stalin, only to fall victim to Stalin’s purges. He was an academic, not an activist lawyer.
Which is not to say that the radical or left-wing legal scholar has no role to play, far from it. The power of law to perpetuate misrecognition of real power relations and to perform its vital role of legitimation of the symbolic order of capitalism, which is what Susan Marks refers to as ‘ideology’, must indeed be stripped of its false normativity and subjected to a thorough-going and disillusioned materialist critique. At the same time, an accurate historical account of the development of international law in the 20th century will reveal the actual revolutionary and scandalous content of international law. Which is not to say that law is or can be itself revolutionary.
However, it is to be hoped that the scholar or for that matter practitioner, freed of illusion, eyes wide open, will not simply relapse into the armchair, but will find ways to employ her legal competence and skills modestly in the service of collective resistance and struggle. If not, she will fall into a striking performative contradiction.
Bill Bowring is Professor of Law at Birkbeck College, University of London.
 On file with the author
 Paavo Kotiaho ‘A Return to Koskenniemi; or the disconcerting co-optation of rupture’ (University of Helsinki, Faculty of Law, Legal Studies Research Paper Series, No.2, 2011) Electronic copy available at: http://ssrn.com/abstract=1823284
 See for example Roberto Mangabeira Unger (1983) “The Critical Legal Studies Movement” Vol. 96, No. 3
Harvard Law Review, pp. 561-675; and Mark Tushnet (1990) “Critical Legal Studies: A Political History” 100 Yale Law Journal 1515 ; Nigel Purvis (1991) “Critical Legal Studies in Public International Law” 32 Harvard International Law Journal 81
 http://www.nlg.org/ –
 http://ccrjustice.org/ “The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.”
 See Peter Goodrich ‘Sleeping with the Enemy: An Essay on the Politics of Critical Legal Studies in America’ 68 New York University Law Review (1993) 389
 Matthew Stone, Illan rua Wall and Costas Douzinas (eds) (2012) New Critical Legal Thinking: Law and the Political (Abingdon: Birkbeck Law Press – Routledge)
 Paul O’Connell 30 April 2012 “Trouble in the Garden: Critical Legal Studies & the Crisis” at http://criticallegalthinking.com/2012/04/30/trouble-in-the-garden-critical-legal-studies-crisis/
 For a critique of Douzinas’ more recent work see Chapter 8, ‘”Postmodern” reconstructions of human rights’ in my The Degradation of the International Legal Order? The rehabilitation of law and the possibility of politics (Routledge Cavendish, 2008)
 Costas Douzinas Postmodern Jurisprudence: the Law of the Text in the Texts of the Law (Routledge, 1991)
 Costas Douzinas Justice Miscarried: Ethics, Aesthetics and the Law (Edinburgh University Press, 1996)
 Costas Douzinas The End of Human Rights (Oxford: Hart Publishing, 2000)
 Costas Douzinas Human Rights and Empire: The political philosophy of cosmopolitanism (Routledge Cavendish, 2007)
 Costas Douzinas and Adam Gearey Critical Jurisprudence: The Political Philosophy of Justice (Oxford: Hart Publishing, 2005)
 Peter Goodrich ‘The Critic’s Love of The Law: Intimate Observations on an Insular Jurisdiction’ 10(3) Law and Critique 343-360
 Akbar Rasulov ‘International Law and the Poststructuralist Challenge’ 19 Leiden Journal of International Law (2006) 799–827; this is a review essay on Peter Fitzpatrick and Patricia Tuitt (eds.), Critical Beings: Law, Nation and the Global Subject, Aldershot: Ashgate, 2004; and Sinkwan Cheng (ed.), Law, Justice, and Power: Between Reason and Will, Stanford: Stanford University Press, 2004
 William Otto Henderson The Life of Friedrich Engels Vol.1 (Taylor & Francis, 1976) 281
 See www.haldane.org; it was named after the first Labour Party Lord Chancellor
 http://www.haldane.org/about/history1.php (visited on 30 August 2011)
 Bill Bowring ‘Socialism, Liberation Struggles and the Law’ in Ian Grigg-Spall and Paddy Ireland (eds) The Critical Lawyers Handbook (London: Pluto Press, 1992), pp.179-183,
 Bill Bowring The Degradation of the International Legal Order? The rehabilitation of law and the possibility of politics (Routledge Cavendish, 2008)
 http://birkbeck.academia.edu/BillBowring/Papers/84351/Review_of_my_book_by_Richard_Harvey (visited on 30 August 2011)
 USA., USSR, UK, France, Belgium, Brazil, Bulgaria, Canada, Colombia, Cuba, Ecuador, Spain, Greece, Iran, Luxembourg, Norway, New Zealand, The Netherlands, Poland, Argentina, Sweden, Switzerland, Czechoslovakia, Venezuela, Yugoslavia. See Martin Popper ‘International Association of Democratic Lawyers’ 6 Lawyers Guild Review (1946) 572-3
 William Twining ‘Diffusion of Law: A Global Perspective’ 49 Journal of Legal Pluralism and Unofficial Law (2004) 1-46, at 11, note 18.
 Richard P, Claude, (1994) “ Review of The International Commission of Jurists, Global Advocates for Human Rights by Howard B. Tolley, Jr.” 16 Human Rights Quarterly 576
 See Chapter 1 ‘Self-determination – the revolutionary kernel of international law’ in Bill Bowring The Degradation of the International Legal Order? The rehabilitation of law and the possibility of politics (Routledge Cavendish, 2008); and Bill Bowring ‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’ Historical Materialism 19(2) (2011) 113-127
 Elliot Goodman ‘The Cry of National Liberation: Recent Soviet Attitudes Toward National Self-Determination’ 14(1) International Organization (1960) 92-106
 Goodman, ibid, 92
 Goodman, ibid, 92
 B. S. Chimni ‘Prolegomena to a Class Approach to International Law’ 21(1) European Journal of International Law 57-82
 B. S. Chimni International Law and World Order: A Critique of Contemporary Approaches (Sage, 1993)
 ‘B. S. Chimni The Past, Present and Future of International Law: A Critical Third World Approach’ 8(2) Melbourne Journal of International Law (2007) 499-515
 Chimni (2007) ibid, 500
 Chimni (2007) ibid, 515
 Pheng Cheah (2004) Spectral Nationality: Passages of Freedom from Kant to Postcolonial Literatures of Liberation pp.210-212
 Chimni (2010) ibid 58
 Chimni (2010) ibid 82
 Akbar Rasulov ‘Bringing Class Back into International Law – A Response to Professor Chimni”, (2008) available at SSRN: http://ssrn.com/abstract=1675447, later published as ‘ “The Nameless Rapture of the Struggle”: Towards a Marxist Class-Theoretic Approach to International Law 19 Finnish Yearbook of International Law (2008) 243-294
 Rasulov (2008) ibid 3
 Rasuolv (2008) ibid 6
 See Marks (2007) 202 (remarkable writings), 210 twice (‘ David Kennedy writes passionately and compellingly of the harms caused by an excessive focus on the legal dimensions of contemporary global problems’); Marks (2009) Marks (2011) 77
 Marks (2009) 13, discussion on the whole of that page; see also at 18,
 Rasulov’s note is: David Kennedy, International Legal Structures (1987), 195–8.
 David Kennedy, ‘When Renewal Repeats Itself: Thinking against the Box’, 32 New York University Journal of International Law and Politics (2000) 335-500
 David Kennedy, ‘Some Comments on Law and Postmodernism: A Symposium Response to Professor Jennifer Wicke’, (1991) 62 University of Colorado Law Review 475,
 See Marks (2007) 202 (remarkable writings), 210 twice (‘ David Kennedy writes passionately and compellingly of the harms caused by an excessive focus on the legal dimensions of contemporary global problems’); Marks (2009) Marks (2011) 77
 Marks (2009) 13, discussion on the whole of that page; see also at 18,
 Akbar Rasulov ‘Newstream: A Critical Genealogy’ (2010). Electronic copy available at: http://ssrn.com/abstract=1675446
 David Kennedy (2000) ibid 338
 David Kennedy (2000) ibid 378-379
 David Kennedy (2000) ibid 379-380
 David Kennedy (2000) 380-381
 David Kennedy (2000) 388-389
 David Kennedy (2000) 408-409 note 23
 Kennedy (2000) 399
 Kennedy (2000) 399
 Kennedy (2000) 476-500
 Kennedy (2000) 489
 Kennedy (2000) 498-499
 Martti Koskenniemi “‘Intolerant Democracies’: A Reaction” 37 Harvard International Law Journal (1996) 234-5, at Susan Marks The Riddle of All Constitutions (Oxford University Press, 2000) 141
 Kotiaho (2011) 3
 Martti Koskenniemi The Politics of International Law (Hart Publishing, 2011)
 Koskenniemi (2011) 271-293
 Koskenniemi (2011) 271
 Koskenniemi (2011) 289
 Koskenniemi (2011) 290-291
 Koskenniemi (2011) 291
 Koskenniemi (2011) 292
 Koskenniemi (2011) 361
 Koskenniemi (2011) 261
 Most recently explored in Bill Bowring ‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’ Historical Materialism 19(2) (2011) 113-127
 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001)
 Carl Schmitt The Nomos of the Earth: In the International Law of the Jus Publicum Europaeum, translated by G.L. Ulmen, (New York: Telos Press Publishing, 2003 )
 See Bill Bowring ‘Positivism versus Self-Determination: the Contradictions of Soviet International Law’, in Susan Marks (ed) International Law on the Left: Re-examining Marxist Legacies (Cambridge University Press, 2008) 133-168
 Bowring Degradation (2008) 112
 Pierre Bourdieu ‘The Force of Law: Toward a Sociology of the Juridical Field’ 38 Hastings Law.Journal (1986-1987) 814-853; and Richard Terdiman ‘Translator’s Introduction’ 38 Hastings Law.Journal (1986-1987) 805-813
 E.P. Thompson Whigs and Hunters: The Origin of the Black Act (Alan Lane, the Penguin Press 1975) 261
 Terdiman (1986-1987) 805
 Bourdieu (1986-1987) 816
 Bourdieu (1986-1987) 817
 Bourdieu (1986-1987) 844 n.64
 Bourdieu (1986-1987) 852
 Kotiaho (2011) 11
 Robert Knox ‘Marxism, International Law and Political Strategy-, 22 Leiden Journal of International Law (2009) 413,429
 Evgeny Pashukanis, ‘International Law’, reproduced as an annex to China Miéville Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005) 321, 333); and Evgeny Pashukanis, ‘Lenin and Problems of Law’, in Pashukanis: Selected Writings on Marxism and Law, Piers Beirne and Robert Sharlet (eds), (New York: Academic Press. 1980 )