«The Responsibility of the International Legal Academic: Situating the Grammarian within the 'Invisible College'»

Gleider I. Hernández
«The Responsibility of the International Legal Academic: Situating the Grammarian within the 'Invisible College'»
A. Nollkaemper, W. Werner, J. d'Aspremont and T. Gazzini (eds.), International Law as a Profession
Cambridge University Press, 2016, Forthcoming


Extracto de páginas 1-3, 21-25 y 30-36 del artículo en PDF. Véase el texto en esta ubicación original para leer sus notas y referencias.

«It has been said that it is narcissistic for an international legal scholar to reflect on the role of the academic within the international legal profession. Yet without such reflection, we are left only with a circular understanding of our role in what Oscar Schachter memorably termed the ‘invisible college’ of international lawyers, as a community of professionals dedicated to the common enterprise of engaging with international law. We do not question the mainstream presumption that whatever the form of our professional engagement (academic, activist, advocate, judge, government official, or any combination thereof), the international legal profession is united by its focus: ‘everywhere it is expected to focus on legal problems: that is to say, problems about the content and the application of law.’

»It will be argued here that the unifying characteristic of the international legal profession, however, is not the object of our study, international law itself. Instead, international law is simultaneously constituted by and constitutes the community of international lawyers who engage with it. The relationship is ‘co-constitutive’, meaning on the one hand that it is the community of international lawyers who come to create, interpret and render operative the international law with which they engage in their professional practice; and simultaneously, that certain argumentative rules pervade the international legal discipline, generating background ideas that come to constitute, or at least structure, the professional vocabularies of all international lawyers.

»This is not a new point: recently, Jean d’Aspremont has sought to explain how the foundational techniques of international law socialise international lawyers and come in turn to be defined by them. Martti Koskenniemi has long studied the complex relationship between international law and the specific claims to expertise of the various categories of international lawyers. Where this present Chapter seeks modestly to contribute to the debate is in presenting some reflections on the specific function of the international legal academic, and how our teachings come to structure international law profession more generally.

»Specifically, I aim to consider the extent to which the metaphor of a grammar common to international lawyers, which enables the creation and justifies the validity of international legal rules, constitutes the role of the international legal academic as a grammarian.

»Within language, understood as a method of communication, the use of grammar is a prescriptive tactic, instructing those actors who participate in a language community on how to construct their thoughts and present them to the wider world. One cannot underestimate the important normative character of structure and systematisation: a grammarian shapes the formulation of arguments by other actors, prescribes the categories of acts, utterances and practices that will be deemed relevant, and indeed contributes to the elaboration of the language—in this case, of law.

»[...]

»International legal scholars as ‘grammarians’: the social reality

»In this respect, it is apposite to highlight the structural features which situate international legal scholars within the fabric of international law and within the community of international lawyers.

»First, legal scholarship aims to serve the crucial function of distinction, in establishing disciplinary boundaries which create the boundaries between law and non-law, by refining the criteria through which one can distinguish between legally relevant and irrelevant practice. It is this emphasis on relevance and disciplinary boundaries that animates current scholarly debates about the deformalisation of international law.

»Secondly, ‘[l]egal scholars, through the work of rationalization and formalization to which they expose the body of rules, carry out the function of assimilation necessary to ensure the coherence and the permanence of a systematic set of principles and rules.’ The relatively dynamic structure of international law-making, not to mention the lack of international legislative organs, nudges international legal academics in a prescriptive direction, to ‘perform a task of verbalizing and ordering, which is needed for grasping an international norm and making it operational in the first place’. If later validated by the international community as legally correct, scholarship thus contributes indirectly to the formation of the law by studying and systematising its principles, distilling relevant evidence and assembling it critically. The systematised material can then exert a powerful influence on the activity of other actors within the system.

»Together, and as described earlier, these activities suggest that legal scholars carry out the functions of grammarians within the international legal system described earlier. Control over the structure of legal reasoning can be partly constitutive of the law itself: as d’Aspremont, would put it, there is power in the function of ‘grammarians in formal lawascertainment who systematize the standards of the distinction between law and non-law.’

»In so doing, one has the potential to influence other systemic actors within the system who are involved in the application of international legal rules, and thus authoritatively to shape further practice. The act of structuring is therefore a technique of enframing: through control over the parameters through which the world is apprehended and cognised, the grammarian of international law contributes to how the law itself interacts with social realities, channeling political claims into specific forms, rejecting as irrelevant certain categories of contestation, and prescribing a form of communication upon other actors. Through this social interaction, the role of scholars transcends mere description or dissemination of knowledge about how international law would apply.

»The potential substantive influence of this structural role is thus both apparent and pervasive in constituting international order, for it modifies both the fabric of international legal rules and the professional community of international lawyers. As Thomas Kuhn explained in The Structure of Scientific Revolutions, disciplinary progress is achieved in part through paradigm shifts, through which members of an established scientific community develop ideas that radically challenge or even revolutionise scientific or academic thought in a given discipline. That function is most likely carried out by those engaged with the scientific cognition of the object of that discipline, in this case international law. But it is not enough to advance new or radical ideas, even if these are closer approximations of reality; a paradigm shift can only achieved after its internalisation and acceptance within what Kuhn characterises as a (relatively) conservative majority within that community, which will from the outset generally oppose any conceptual challenge to an established framework of thought.

»That conservatism can be explained, in part, by the socialisation and disciplining processes through which one comes to be accepted by the professional community. Be that as it may, the chief point to draw from Kuhn is that it is only through the process of accommodation of new knowledge within the accrued disciplinary knowledge and analytical frameworks of that scientific community that disciplinary advances as a whole can be achieved. Although that accommodation comes possibly with the loss of that critical posture, as it becomes subsumed into the mainstream, the continued accommodation between challenger and mainstream remains a defining characteristic of disciplinary debate.

»[...]

»Towards an Ethic of Responsibility?

»The picture so painted is disheartening: international legal scholars’ role as grammarians is essentially relational, characterised primarily by a desire to be seen as relevant within a wider professional community of international lawyers, but equally, by our indispensability to the wider enterprise of cognising and using international law. This picture concedes ‘the inevitability of elite management’114 in international legal argument, and potentially elevates the practices of those international lawyers who engage most vigorously and broadly with international law as gatekeepers of the community’s common discourse rules.

»To reiterate the point, if the role of international legal scholars in the wider profession is of grammarians, to identify points of coherence and to prescribe order, the very act of so doing is constitutive: we strive ‘to add to the ideas, actions and ways of being that might be enacted through international legal work’. Such an approach risks engendering a stagnation in greater theorising about the discipline: or a lack of analytic progress, as Hilary Charlesworth would put it. What is more, a grammarian so accepted wields ‘power’ in a decisive, even Foucauldian sense, for he contributes to the understanding of what may or may not be stated, the acceptable or legitimate language that may be used, and yet accepts no responsibility for its exercise.

»Yet, for all this, perhaps all is not so bleak. Our membership in the wider professional community raises the potential for some critical self-refexivity: it allows us to come to terms with own impact, and the concomitant responsibility we bear, for generating the social practices (what d’Aspremont calls ‘communitarian semantics’) through which international law is cognised, applied and further developed. As Andrew Lang and Susan Marks suggested,

»"...by showing how our professional sensibilities are entrenched, transmitted and propagated through disciplinary habits of thought, assumptions, and dispositions, we are brought face to face with the processes through which we are ourselves enrolled in, and shaped by, the collectively produced disciplinary structures we inhabit."

»A modest, but more uniform approach to the role of scholars within the wider professional community of international lawyers, accepting our role within the invisible college yet without subordinating us to the structural biases of international law and those who made it, can in turn expand the scope of our understanding of our engagement with international law and how international law itself helps to structure social order and relations. Scholarship, thus conceived, has the potential to ‘make transparent from a reflexive distance’ which particular political or economic projects the law promotes in a given context. Moving beyond the tired oscillation between fidelity to law and the need to speak truth to power, international legal academics retain the unique possibility, as integral members of the professional community, to observe instead how we international lawyers work within the discipline and challenge the structures of international law: as Koskenniemi puts it, ‘every move [we] make is both law and politics simultaneously and demands both coolness and passion—a full mastery of the grammar and a sensitivity to the uses to which it is put.’

»It is in this light that Koskenniemi’s call for a ‘culture of formalism’, first put forward in The Gentle Civilizer of Nations but then further elaborated in the Epilogue to From Apology to Utopia, has such potential in elucidating an autonomous disciplinary purpose for the international legal scholar. His call by no means represents a neo-formalist faith in the legal form, but a concession to understanding the historical practices and contexts in which law has developed in tandem with the perpetuation of power structures, structures that the international lawyer cannot bypass or ignore simply by virtue of his political activism.

»Though premised on the impossibility of the universal, it nevertheless seeks to open an horizon for a universal vocabulary of legal argument, however unattainable; as such, it represents more a communicative culture that aspires to the universality of legal arguments purely for the sake of equality and openness. Though a defence of the autonomy of the legal form, which risks being attacked as the ‘fetishism of rules’, this is only in so far as the legal form is an expression of social or institutional practices that are internally validated. Instead, the mission of international legal scholars is essentially reformist: it is a commitment to use the professional competence, acquired through membership in the professional community of international lawyers, to communicate with other international lawyers to understand, expose and unmask the structural biases inherent in the object of our professional engagements.

»Certainly, the act of destabilising the collective identity of international lawyers as a profession committed unquestioningly to a neutral or inherently benevolent professional discourse itself represents a political choice. Any faith in law is in its potential to offer a substanceless set of discursive tools, where political dialogue can take place on the basis of equality; it alters the nature of the relationship between actors.130 As Koskenniemi has put it, the culture of formalism is in fact:

»"...a culture of resistance to power, a social practice of accountability, openness, and equality whose status cannot be reduced to the political positions of any one of the parties whose claims are treated within it."

»Perhaps to agree so wholeheartedly with Koskenniemi on this point is facile; and it is true that it remains equally prone to perpetuating the elitism demanded by technical proficiency that Koskenniemi himself decries. But to the present author’s mind, there remains something uniquely compelling about the ethic of responsibility engendered in the call for a culture of formalism: it is a powerful (though certainly not determinative) call to choose the legal vocabulary as a political tool. As Klabbers has put it, Koskenniemi has here embraced an ethical position from which international legal scholars can start our investigation and participation in legal and political processes, and contributing to a process through which political decision-makers, and especially those in positions of power, can give effect to their individual responsibilities. In this respect, Koskenniemi finds rare common cause with the legal realism of Roscoe Pound:

»"...we may demand of [the international lawyer] a philosophy that shall take into account of the social psychology, the economy, the sociology as well as the law and politics of today, that shall enable international law in terms of social ends, not an analytical critique in terms of itself, and above all that shall conceive of the legal order as a process and not as a condition."

»Certainly, in choosing for Koskenniemi’s culture of formalism, one expresses a residual faith, however slight, in the emancipatory potential of law. But for the reasons expressed above, it is important to harness the powerful normative potential of the toolbox that is made available by international legal vocabulary. As Fleur Johns puts it, we can participate actively in the ‘making and remaking of global political possibilities’. Perhaps it is in this sense that the international legal academic can claim a new, autonomous, role in this process of selfreflection, to ‘painstakingly enquire into the trends of development ... and do so with honesty of purpose tempered by an appreciation of the practical problems posed by the realities of life’.

»As international legal scholars, if we are to have any faith in international law’s emancipatory potential, however thin, then we must assume our own agency and responsibility for the vocabularies that we deploy and use in the name of internationalism, of universalism, and of all humanity. Our indirect, yet powerful, influence on the continued development of the international legal order depends on it.»