Not long ago, at an international law conference, in my panel was a scholar whom I admire a lot (still do). After presenting their paper, said scholar was asked a methodological question to which they briskly retorted—I quote—that they don’t give a shit about methodology. And that we would be much better off if we did away with it, is the kernel of what immediately followed. It would not be fair to name the author of those remarks. In any case, their identity is beside the point. What matters is that, at first, I more or less consciously dismissed the episode as an assertion of professional authority. (Having always entertained an uneasy relationship with authority, I tend to see its shadow on every corner.) If they can respond like that, it’s because of their standing. When a methodological query came my way, adopting a similar posture did not strike me as a feasible option. I came up with an answer. To this date, I doubt it was very convincing.
And yet, as much as authority was probably involved, the event has recently started appearing to me under a different light. It happened because of my studies, which lured me into the murky terrain of international legal historiography. And murky that terrain really is, for I must confess that the more I delve into it, the more I feel at a loss. One thing seems to be clear: at some point in the early 2000s, the historiographical appetite of international lawyers enormously grew. Among the reasons for that development, a certain dissatisfaction with the present historical juncture is said to stand out. If the end of the Cold War revived the promise of a coherent international legal order, it was only for a vanishing moment. By 2008, when the financial collapse unfolded, the liberal cosmopolitan hangover had given way to a humbling sobering up. In this climate, so the narrative goes, scholars turned to the past to problematise their discipline’s allegedly immaculate pedigree. All in all, an emancipatory mission. More histories for a broader history, to make us better equipped in the face of an uncertain present
As another decade waves goodbye, however, the historiographical trend rapidly assumes stronger and stronger methodological shades. The theoretical production about international legal historiography is arguably outpacing the historiographical output itself. It is as if certain scholars were taken by a deconstructive impulse, one leading to disturb tranquillity, to turn the methodological premises of certain texts against those texts themselves. It is, in other words, a deconstruction of a very basic kind, probably non-Derridean and perhaps even spurious. (But deconstruction resists definition anyways, so there is that). Yet, the trend dissects the turn to history by identifying sub-turns, by locating their associated methodological preferences, by uncovering the dubious usefulness of the distinctions they operate, and, ultimately, by showing that they often fall short of fulfilling the political goals they had set themselves. In short: there is this theoretical engagement with historiography that insists on charging methodology for certain political deficiencies or politically unintended effects.
I find this attitude rather problematic. A long time ago, Stanley Fish told us that no theory has inbuilt political consequences, the latter always depending upon the rhetorical role that a given theory plays in any particular context. I take this view to be accurate, as I more or less noted in a recent paper I wrote. It seems to me that deconstruction is a case in point. Radha D’Souza, for instance, has recently censured the endless deconstruction of rights performed by critical legal scholars, which never results in those scholars walking away from rights altogether. ‘Demolishing rights only to reinstate it mirrors, at the ideological and theoretical level on the political Left, TINA arguments of Margaret Thatcher – There Is No Alternative’ says D’Souza. So, deconstruction is not a political label per se. In a sense, what D’Souza says mirrors an analysis made by Antonio Negri some twenty years ago. Before taking a dig at Derrida for failing to do justice to communism in Specters of Marx, Negri noted that ‘deconstruction insists on solitary transcendental horizons – without keeping in touch with practice and fleeing after having identified the possible determining factor of justice’. I wonder whether the same is happening with the deconstruction of historiographical methodology today. If the present is unsatisfactory and scholars have identified unsettling conventional narratives as a possible determining factor of justice—should we not want to ask, first and foremost, what are the politics of this historiography, rather than what are the politics of its methodology? Maybe this is what bugged the scholar who was sitting next to me at that conference, after all.
Back to the theoretical trend targeting historiography, I said that I interpret it as some sort of a deconstructive impulse. If that is the case, then something is plainly wrong. For Derrida might not have told us what deconstruction is, but he did make relatively clear what deconstruction is not, when he recommended that scholars ‘avoid both simply neutralizing the binary oppositions of metaphysics and simply residing within the closed field of these oppositions, thereby confirming it.’ If it aims to support the unsettling ambitions of revisionist international legal historiography, historiographical theory might want to follow out Derrida’s injunction. And yet, such a theory keeps sorting scholars in doctrinal boxes marked by (however innovative) specific postures towards familiar binary dichotomies—past vs present, law vs non-law, anachronism vs contextualisation. But then again, maybe David Graeber is right when he says that the likes of Derrida would never get tenure, were they to appear in the academy today.
It is possible, of course, that I am getting it completely wrong, that deconstruction is nowhere among the goals of scholars doing pure historiographical theory. Possibly, those scholars intend to do the opposite of deconstructing. Fixing polarities, defining the contours of various sub-turns to history, systematising emerging literature. In other words, promoting historiographical theory to the status of the new legal science par excellence. (Jean d’Aspremont noted here that methodological discussions are the only remnants of international legal positivism.) And showing that the political upshots of any given methodology currently employed to write the historiographies of international law are not as neat as we may think. A bit liberating, yes, but also a bit reactionary. Progressive to a certain extent, conservative for the rest. Politically open-ended. Fair enough—but this makes me think of a passage authored by literary scholar Jeffrey Nealon. Surely, says Nealon, ‘we should today be able to tell our students, the public, maybe even ourselves something more trenchant or useful than the fact that cultural texts, like your stock portfolio, contain a lot of interpretive possibilities—true as that insight is, it no longer seems much of a wedge against what we might call the fierce banality of now.’ As I see it, this is also true of the political use of our theories, which Fish defined as susceptible to endless appropriation.
It is as if we were incapable of renouncing the idea that scholars retain full mastery of their methods (during production) as well as of their texts (after publication). In turn, that idea cannot but reflect an obdurate bias that methodologies are objectively determinable from the outside, ready for use, and always capable of application to immutable political circumstances. I think we should disabuse ourselves of that belief. The politics of historiography—the politics of any historiographical account—seem to me no more immutable than the technology of our smartphone camera is. Holding that the turn to history, or a given sub-turn, can (or fail to) exert liberating effects smacks of pure logocentrism. Needless to say, logocentrism does not sit well with deconstruction. Which requires me to make a disclosure: I am currently writing a paper on the politics of methodology in international legal historiography myself. If what I have said so far makes sense, I am as guilty as anybody else.
Luckily there are always sources of inspiration around, if one bothers looking. For what seems to matter is that there are other ways of approaching methodology, historiographical or otherwise. To accompany this post, I chose a painting by 17th-century Baroque artist Artemisia Gentileschi. But I do not care much about her style, or about her method. What I find appealing is this particular work’s subject. Self-portrait as the allegory of painting, reads the title. So, this is not just a painting. It is the painting of a painter painting, which is to say an allegory of the very art of painting. Many things at once, that the adjective Baroque can hardly be said to convey.
If I had to point to a comparable approach in international legal historiography, I would draw from the scholarship of Sundhya Pahuja. In Letters from Bandung, Pahuja’s take is declaredly ‘speculative rather than biographical, reflective rather than historical.’ Her ‘aim is to tease out a juridical-political imaginary of a certain moment, which the reader may juxtapose with what is imagined to be possible now for international law for, in, and of the Global South. At the same time, the chapter invites reflection on how we remember what was imagined then as well as the political effect of that remembrance.’ Here too, many things at once: biography, reflection, imagination, possibility, remembrance. I frankly would not know how to frame this approach in abstract methodological terms. I am not sure what school it belongs to, if any. I only know that I like the argument’s politics. I like them now, and very much so.
Michele Tedeschini is a PhD candidate at the SOAS School of Law, and a Teaching Assistant at the University of Manchester.