32 Harv Intl LJ81
32 Harv Intl LJ81
32 Harv Intl LJ81
Citations:
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
VOLUME 32, NUMBER I, WINTER 1991
Nigel Purvis**
* The essay on which this article is based was awarded the 1990 Laylin Prize, presented
annually to a student-written paper on public international law at Harvard Law School.
* Associate, Sullivan & Cromwell. J.D., Harvard Law School 1990. I wish to express my
gratitude to Harvard Law School Professors David Kennedy, Henry Steiner, and Lewis Sargentich,
as well as to Martri Koskenniemi, for their many contributions to this article.
1. I use the terms modernist, modern, and modernism to refer to the collective insights of
a wide variety of scholars who have lived and worked since the late 19th century, and whose
works are characterized by a rejection of established objective truths. Modern international law
theory emerged as a reaction to the limitations of the pre-modern system. The history of
international legal theory presented in this section is the history of pre-modernism from the
perspective of the late modernist scholars who are the subject of this article.
2. See David Kennedy, A New Stream of InternationalLaw Scholarship, 7 Wis. IN1'L L.J. 1,
3-4, 26 (1988); International Legal Education, 26 HARv. INT'L L.J. 361, 369 (1985) (both
suggesting that the international law theories developed after 1950 abandoned objectivism and
formalism). Admitredly, the post-World War I effort to build institutions and regimes for the
protection of minority interests exhibited a type of modernist commitment to functional prag-
matism. But in two senses the move to institutions seems less modern than movements in the
generation that followed it. First, the emphasis on international consent represented the last
grand attempt at positive formalism. Second, the institution builders were mostly intellectual
idealists who had not internalized the modern abandonment of objective truth. Cf. David
Kennedy, The Move to Institutions, 8 CARDOZO L. REV. 841 (1987).
Conventional legal theory has been criticized for ratifying the conceptual distinction between
public and private action. Yet, despite the potential merits of such criticism in international
law, it remains common practice to separate sovereign and private spheres. As a consequence,
and for simplicity, I use the terms international law and public international law synonymously.
HarvardInternationalLaw Journal / Vol. 32
3. The metaphor of the combat between naturalism and positivism is, of course, somewhat
simplistic. It should be understood as a holistic device, valuable because it allows me to define
briefly the competing positions within traditional international legal argument and to demon-
strate the tension between them. In truth, most scholars in the classical period appealed both
to natural and positive arguments to justify their positions. See MARTTI KOSKENNIEMI, FROM
APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT 83-98 (1989);
ANTHONY CARTY, THE DECAY OF INTERNATIONAL LAW?: A REAPPRAISAL OF THE LIMITS OF
LEGAL IMAGINATION IN INTERNATIONAL AFFAIRS 1 (1986); Kennedy, New Stream, supra note
2, at 17-26; James Boyle, Ideals and Things: International Legal Scholarship and the Prison House
of Language, 26 HARV. INT'L L.J. 327, 336-42 (1985); Anthony D'Amato, What "Counts" as
Law?, in LAW-MAKING IN THE GLOBAL COMMUNITY 88-90 (Nicholas Onuf ed. 1982). Sce
generally David Kennedy, Primitive Legal Scholarship, 27 HARV. INT'L IJ. 1 (1986).
4. See KOSKENNIEMI, supra note 3, at 98-127; Nicholas Onuf, Global Law-Making and Legal
Thought, in LAW-MAKING IN THE GLOBAL COMMUNITY, supra note 3, at 1-81; Kennedy, New
Stream, supra note 2, at 17-26; Boyle, supra note 3, at 333-36.
5. Most international legal scholars in the classical period appealed, however, both to natural
and positive arguments to justify their idiosyncratic theoretical positions. On the Westphalian
birth of the debate, see KOSKENNIEMI, supra note 3, at 72-73. See also Onuf, supra note 4, at
3. But see Kennedy, New Stream, supra note 2, at 12-17; see generally Kennedy, Primitive, supra
note 3 (the philosophical tension in international law pre-dated the Peace of Westphalia).
6. See Kennedy, New Stream, supra note 2, at 17-26.
7. See KOSKENNIEMI, supra note 3, at xiv; CARTY, supra note 3, at 2; Onuf, supra note 4, at
1991 / Critical Legal Studies
of international law that did not depend on the two rival theories
about the fundamental nature of the international order.
Despite their shared commitment to functional abstraction, the
conceptual pragmatists adopted very different approaches to interna-
tional law. Consider the four schools mentioned above. Rule-approach
theorists looked at international law through the doctrine of sources.
International law's authority, they thought, was derived from its
doctrinal origins. Policy-approach lawyers found a substitute basis of
authority in universal values. The Skeptics placed self-interested state
behavior at the heart of international life, and provided a descriptive
pattern of how nations actually behaved. The Idealists saw interna-
tional law in terms of common human needs and communitarian
values. 2 2 These conceptual differences produced equally dissimilar de-
scriptions of international law. Rather than examine each of the various
early modernist positions, 23 1 shall use the Policy-approach to illustrate
the form of argument common to all conceptual pragmatism. 24 I also
hope to provide an initial sense of why all the modernist international
legal theories of conceptual pragmatism failed.
Policy-approach scholars, led by Yale Professors McDougal and
Lasswel125 and collectively known as the New Haven School, sought
to avoid reliance on either of the classical conceptions of international
law. To do so, they traced the authority of international law to a
deducible, universal, and normative philosophy of human justice. In
their own terms, the New Haven School sought to develop a "world
public order of human dignity."2 6 Standing alone, the principle of
human dignity could not govern international legal controversies but
had to be elaborated. Policy-approach scholars saw its elaboration as
their academic mission.
Thus, the implicit assumption of the Policy-approach was that the
abstract goal of human dignity could be made concrete and given
meaning without losing its universal appeal. Yet, as Policy-approach
scholars sought to elaborate the principle of human dignity, their own
27. Despite its subjectivity, the Policy-approach to international law continues to be popular
today among scholars and practitioners. Contemporary scholars, like Richard Falk and Lung-
Chu Chen, have carried on the tradition. See, e.g., RICHARD FALK, REVITALIZING INTERNA-
TIONAL LAW (1989); LUNG-CHU CHEN, AN INTRODUCTION TO CONTEMPORARY INTERNA-
TIONAL AW: A POLICY-ORIENTED PERSPECTIVE (1989). Its utopian normativity and lack of
concreteness have become even more apparent today. Even within the Policy-approach there is
controversy over the normative substance of international order. Depending on the particular
scholar, Policy-approach pragmatism has been used to advance a range of diverse philosophies
from liberalism to radical communalism. Compare CHEN, supra (articulating traditional liberal
values), with FALK, supra (articulating a form of radical communalism).
28. It is also possible to characterize the Policy-approach as positivism. See KOSKENNIIIMI,
supra note 3, at 172-73 (demonstrating that by applying descending or ascending arguments
any position can seem positivist and naturalist).
29. See KOSKENNIEMI, rupra note 3, at 136.
30. See id. at 137; Boyle, supra note 3, at 342-46.
31. See KOSKENNIEMI, supra note 3, at 187-91, 449-57 (any of the modernist theories could
be described as either naturalism or positivism).
1991 / CriticalLegal Studies
itself to some grander theory about the nature and origins of inter-
national law. When forced out of international law's doctrinal harbors
into the open seas of international social life, pragmatists inevitably
drifted between naturalism and positivism. As conceptual pragmatism
sought to distance itself from the criticisms of one view, it became
vulnerable to the criticisms of the other. Like Scylla and Charybdis,
naturalism and positivism were each capable of ending the progress of
pragmatism.
32. See Kennedy, New Stream, supra note 2, at 5; see also KosKENNIE!-II, supra note 3, at xiii;
Trimble, supra note 26, at 813; Onuf, supra note 4, at 44.
33. See Kennedy, New Stream, supra note 2, at 6.
34. Id. at 5; InternationalLegal Education, supra note 2, at 377.
35. Kennedy, New Stream, supra note 2, at 6.
36. Id.
37. Trimble, supra note 26, at 811.
38. See John Gamble & Natalie Shields, InternationalLegal Scholarship: A Perspective on Teaching
and Publishing, 39 J. LEGAL EDUC. 39, 40 (1989) (quoted in Trimble, supra note 26, at 811).
HarvardInternationalLaw Journal / Vol. 32
39. Id.
40. See Kennedy, New Stream, supra note 2, at 1.
41. The first New Stream scholarship began to appear around 1980. See, e.g., David Kennedy,
Theses About International
Law Discourse, 23 GERMAN Y.B. INT'L L. 353 (1980). As the decade
progressed the number of scholarly essays on international law demonstrating the New Stream
perspective increased dramatically. See, e.g., KOSKENNIEMI, supra note 3; DAVID KENNEDY,
INTERNATIONAL LEGAL STRUCTURES (1987); CARTY, supra note 3; FRANCIS BOYLE, WORLD
POLITICS AND INTERNATIONAL LAw (1985); Nathaniel Berman, Sovereignty in Abeyance, 7 WXIs.
INT'L L.J. 51 (1988).
42. See Kennedy, New Stream, supra note 2, at 4.
43. Id. at 6.
1991 / Critical Legal Studies
E. MethodologicalNotes
At this juncture a few methodological notes are appropriate. In the
remainder of this article, I hope to present CLS's radical vision of
international law. The method I shall employ will resemble one used
by some critical international legal scholars. 5 3 I shall look at CLS's
conception of public international law from the inside, as a self-
contained theory about the nature of international law. My analytic
comments will be confined to the examination of the internal logic of
critical international law and the exploration of the movement's met-
aphors and images. While telling the story of public international law
and CLS, I want to displace-by setting aside-all questions concerned
with the validity, rightness, and truth of their descriptions of inter-
national law. 54 I shall take their conclusions as given. The traditional
material of international legal scholarship-the norms, doctrines, and
cases of international law-will not appear in my narrative, except as
required to describe the claims made by the New Stream scholars,
Indeed, much of my analysis will involve intellectual movements and
theories outside the area of international law.
Because I concern myself only with theory and its internal coher-
ence, the first part of this article, which examines New Stream theory,
will appear more abstract than New Stream writing itself. Without
exception, New Stream scholars have labored within the realm of
international legal action. They have studied and elaborated on the
52. That is why the description presented earlier of international legal theory from 1950
concentrated on the historiography of modern international legal theory in the United States.
53. See KENNEDY, INTERNATIONAL LEGAL STRUCTURES, supra note 41, at 7.
54. I intend this article to perform a modernist structural examination. See Kennedy, Critical
Theory, supra note 45, at 248-89. 1would like to note that I do not want to prove the "rightness"
or "wrongness" of the critical method of international legal analysis, nor do I seek to resolve the
debate between naturalism/positivism, realism/idealism, and coherence/pragmatism, preferring
to set aside those concerns as well. One might fairly suggest that I am setting aside too much
and ask rhetorically, what substance is there to international law but what I have refused to
discuss? But that question is precisely what critical jurisprudence in international law has sought
to answer. To the extent that critical legal scholars have identified previously unseen aspects of
international law, their claims deserve the type of consideration I hope to provide.
1991 / CriticalLegal Studies
55. The theory will, I think, be an accurate representation of many of the themes of CLS in
international law, although it is quite possible that some of the new theorists would not subscribe
to it. Instead, they may prefer to recast the literature in another manner, to present some
international legal theory not directly related to the new literature, or to avoid such speculation
altogether. Some of the scholars upon whom I shall rely may not find any particular intellectual
affinity with the broader CLS movement. Others may, in fact, be self-declared non-CLS. But
none of this should prove particularly damaging to the project I have designed. I am less
concerned about whether a particular author would agree with my characterizations than I am
about the importance of the work as it fits into the critical conception of international law.
56. In a larger sense my goal is to avoid what I believe to be a tragic failing of contemporary
legal scholarship in the United States. It is no secret that over the past decade, law faculties in
the U.S. have split into fiercely divided ideological camps, with traditionalists on one side and
CLS radicals on the other. Legal academia has become so polarized that its competing camps
have been incapable of engaging each other. The distance separating the ethical foundations and
academic approaches of the different camps seems to preclude an intellectual dialogue of the
type that might advance the discipline. Scholarship produced by one camp stands no chance of
receiving serious treatment by the other. Ultimately, scholars seem to write for the benefit of
their own group. In international law, as elsewhere, the legal discipline needs to find a way of
re-engaging itself. One way to do so is for non-CLS international legal scholars to respond
directly to CLS claims. For an example of such a project outside of international law, see ANDREW
ALTMAN, CRITICAL LEGAL STUDIES: A LIBERAL CRITIQUE (1990).
HarvardInternationalLaw Journal / Vol. 32
60. The classical theories of international law themselves mirror the broader theory of liberal
ethics. It is from liberalism that a "domestic analogy" is drawn to create an image of world
politics. See KOSKENNIEMI, supra note 3, at 68.
61. See UNGER, KNOWLEDGE AND POLITICS, supra note 51, at 76. Choosing these premises
as the basis for liberal philosophy represents a somewhat arbitrary starting point. In this section
I shall demonstrate that from the CLS perspective, liberalism contradicts its own premises. From
the two premises listed in the text, I shall show how liberalism lacks any basis for political or
legal action. I might easily have begun with liberalism's purportedbases forpolitics (liberty) and
law (objectivity) and shown how they conflict with liberalism's stated epistemology and psycho-
logical assumptions.
The major "internal" critiques of liberal philosophy have been produced outside the area of
international law. See MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987); ALASDAIR
MAACINTYRE, AFTER VIRTUE (2d ed. 1984); UNGER, KNOWLEDGE AND POLITICS, supra note
51. But see KOSKENNIEMII, supra note 3, at 68-73 (an internal critique of international law
developed from Maclnryre and Unger). For non-legal critiques of liberalism see ANDREW LEVINE,
LIBERAL DEMOCRACY: A CRITIQUE OF ITS THEORY (1981); THOMAS SPRAGENS, THE IRONY
OF LIBERAL REASON (1981); C.B. MACPHERSON, DEMOCRATIC THEORY (1973).
Harvard InternationalLaw Journal / Vol. 32
62. This is the archetypical example of the "domestic analogy." See KOSKENNIEMI, jupra note
3, at 68.
63. See UNGER, KNOWLEDGE AND POLITICS, supra note 51, at 76-81. Here, I may have
alienated readers who believe just the opposite, that liberalism accepts the universal nature of
truth. To resolve this disagreement, it is helpful to divide the dominant method of philosophical
reasoning (standard rights discourse) into two strands, libertarianism and conservatism. Liber-
tarians are committed to liberty above all else because, I would argue, they accept the impos-
sibility of transcendental truths. Without absolute truth there can be no basis for violating
individual liberty as all value is subjective. By contrast, conservatives believe in individualism
and in objective truth. They favor liberty only as a means of protecting individualism, not
because of epistemological necessity. They remain free to check individualism through appeals
to objective truth. Although the criticism of liberalism presented in this part of the paper does
not apply to conservative philosophy, the conservative conception of international law, the belief
in a transcendent normative truth, succumbs to all the failings of naturalism.
64. See KOSKENNIEMI, supra note 3, at 1-51.
65. See UNGER, KNOWLEDGE AND POLITICS, supra note 51, at 79-8 1.
66. See MACINTYRE, supra note 51, at 244 ("For since a virtue is now generally understood
as a disposition or sentiment which will produce in us obedience to certain rules, agreement on
what the relevant rules are to be is always a prerequisite for agreement upon the nature and
content of a particular virtue. But this prior agreement is . . . something which our [liberal]
culture is unable to secure.").
67. UNGER, KNOWLEDGE AND POLITICS, supra note 51, at 93.
68. See id. at 76-81. See alsoKOSKENNIEMI, supra note 3, at 55-56.
69. See UNGER, KNOWLEDGE AND POLITICS, supra note 51, at 76-77; KOSKENNIENII, s1pra
note 3, at 55-56, 68-69.
1991 / CriticalLegal Studies
creating legal solutions that reflect only the legitimate normative bias
of international law. Objectivity is thus an epistemological claim about
the possibility of legal knowledge, and the neutrality of legal solutions
relates to the purported detachment of the process from some sub-
stantive outcome other than the preservation of sovereign liberty.
Together these visions of liberal politics and liberal legality maintain
"the distinction between (material but subjective) morality and (formal
but objective) law."7 7 Herein lies the contradiction that has been the
object of the critical attack on the internal logic of liberalism: liber-
alism cannot deny the existence of objective value and at the same
time claim to resolve international conflicts through an appeal to rules
of objective neutrality. To illustrate the contradiction, I shall examine
two of the most frequent ways in which liberalism seeks to resolve
conflicts among sovereign liberties.
The most common principle of international law is that sovereigns
are at liberty to act in any manner that does not "harm" other sover-
eigns. 78 Thus, the objective principle of "harm" must delimit the size
of each sovereign's sphere of liberty. The principle of subjective value,
however, demands that "harm" not have an intelligible essence. We
cannot know as a matter of moral truth that a just world order would
have some specific prohibition or another. Harm cannot be made
concrete in an objective manner without finding some intelligible
essence. Liberal legality that is both built on the rejection of intelli-
gible essences and that purports to give "harm" content must be
79
internally incoherent.
Another common method of giving liberty meaning involves fol-
lowing rules built on distinctions between domestic jurisdiction and
international concerns. 8 0 Liberalism describes the world in dichotomies
between sovereignty and world order, the domestic and the interna-
tional, the private and the public. The priority of competing rights
switches as one passes from one realm of the distinction to another.
Yet what is it about international life that makes these distinctions
natural, objective, or intelligible? The answer is simply nothing. The
principle of subjective value precludes the existence of natural and
objective distinctions. The denial of an intelligible essence, further-
more, foils any attempt by international law to determine that a
particular fact of international affairs falls on one side of a distinction
or another, or within one rule or another. 8' Laws based on rules
incorporating such distinctions can only act to mediate and obscure
82. For an extensive discussion of sources doctrine, see KENNEDY, INTERNATIONAL LEGAL
STRUcTURES, supra note 41, at 11-107; Onuf, supra note 4 at 14-3 1. See generally CARTY, supra
note 3, 1-87.
83. See KOSKENNIEMI, supra note 3, at 73.
84. Id. at 68.
85. See MACINTYRE, supra note 51, at 7.
86. See id. at 6-11.
HarvardInternationalLaw Journal / Vol. 32
87. Id. at 244. And any such community could have no reason for loyalty or patriotism. See
id. at 227-335.
1991 / Critical Legal Studies
88. Discussions about the ideological content of liberalism focus on critiques of the internal
logic of liberalism and explanations 6f international law's perceived legitimacy. In this section,
however, I develop an argument about the ideological constraints of liberalism which I believe
is logically distinct from the two contexts within which contemporary international legal scholars
have sought to place the concept of ideology.
89. "[Critical theory] refers to a particular style of work developed primarily by a group of
German intellectuals who saw themselves as the inheritors of a tradition begun by Hegel and
Marg ... [and who were] concerned with overcoming the split between theory and action."
Kennedy, Critical Theory, supra note 45, at 216-17. They were often referred to collectively as
the Frankfurt School. "Critical theorists want[ed] their theory to be liberating so that it [could]
be active in the world it analyze[dJ . . . to bring about some change in social relations." Id. at
230-31. In the modern tradition, critical theorists sought to develop a valid theory of knowledge
that would escape the dialectic between naturalism and positivism. Neither positivism nor
naturalism could provide neutral epistemological content and cognitive value. These dual re-
quirements for a sustainable theory of knowledge were referred to by the Frankfurt School as
the "dialectic of criticism." Id. at 226-30.
The Frankfurt School tended to focus on an intertwined relationship between the concepts of
"ideology" and "legitimacy." Critical theorists argued that the subordinate classes, against their
own interest, accepted the ideology of the ruling class, because they somehow came to see that
ideology as legitimate and as their own. True to its Marxist roots, the Frankfurt School tended
to treat law as an agent in social life, often a reflection or institutional incarnation of the
prevailing ideology. Law was a mechanism of legitimation. "It [was] seen as the locus of
conspiracy or the reproducer of false consciousness." Id. at 244-45. For a description of the
Frankfurt School's methodological and substantive commitments, along with a persuasive critique
of this portion of critical theory see id. at 216-48; Heller, StructuraliSm and Critique, 36 STAN.
L. REv. 127, 169 (1984).
CIS in international law subscribes neither to a deterministic Marxist dialectic between an
economic base and an ideological superstructure, nor to theories about false consciousness. Still,
critical theory can be understood as an important source for New Stream scholars. Both groups
share an intellectual debt to the radical insights of modernist thinking, rejecting both positivism
and naturalism; a methodological approach that at once distances itself from traditional liberal
legal analysis by rejecting the objectivity of its conceptual constructs, while entering into
liberalism through an internal critique of its logic; and an attempt at overcoming the distinction
between theory and action in a manner that could restructure international social life. See
Kennedy, Critical Theory, supra note 45, at 244-48.
90. The term reification, literally thing-ification, means to treat an abstraction as substaritially
existing. See Gabel, supra note 47, at 25-26, 44-46; Boyle supra note 3, at 127-30.
HarvardInternationalLaw Journal / Vol. 32
93. Importantly, CLS analysis in international law has not sought to imply that the current
ideological content of world affairs has produced "false consciousness" about the desirability of
liberalism's international order. New Stream scholars have accepted that participants in the
international system internalize liberal ideology and embrace it as their own. CLS scholars have
understood that for liberal ideology to retain its own hegemony over international life it must
sustain its intellectual leadership. Consequently, CLS scholars have challenged liberalism's in-
tellectual dominance.
94. Ideology stands as a constituent element in the struggle for normative content in
international law. Ideology is not only the stake, but also the site of normative decisions in the
international system.
Describing ideology and law as constituent elements in society reveals scholars influenced by
the Marxist model of an ideological and legal "superstructure" on top of a deterministic economic
"material base." The constitutive theory, however, has sought to reject a strong theory of
economic determinism. It has instead sought to expose that "[clonceptions of justice and
allegiance to such conceptions are partly constitutive of the lives of social groups, and economic
interests are often partially defined in terms of such conceptions and not vice versa." MACINTYRE,
supra note 51, at 227. I do nor mean to suggest that CLS analysis of international law is Marxist,
neo-Marxist, or even strongly influenced by Marx. Trying to define CLS in relation to Marxism
is not my goal in this article, and any such discussion would introduce the sort of emotive
baggage that I am trying to avoid.
95. See Karl E. Klare, The Law-School Curriculum in the 1980's: What's Left?, 32 J. LEG.
EDUC. 336 (1982) (describing the law's structure, although not specifically in the context of
international law).
96. See Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REv.. 1057, 1099 (1980)
(connecting the development of the public/private distinction with the ideological structure of
liberal legalism).
HarvardInternationalLaw Journal / Vol. 32
113. These conceptual oppositions have been called international law's problematic.
114. For some 15 years there has been a split among liberal theorists about what judges do
or should do in hard cases. Some scholars argue that judges must use "reasoned elaboration" to
fill in legal gaps. See H.L.A. HART, THE CONCEPT OF LAW (1961); ESSAYS IN JURISPRUDENCE
AND PHILOSOPHY (1983). Others, most notably Ronald Dworkin, argue that the rule of law
prohibits this type of judicial legislation. When textual meaning is insufficient, judges must
find and apply the morality imbedded in the text. See RONALD DWORKIN, LAW'S EMPIRE (1986);
TAKING RIGHTS SERIOUSLY (1978); Hard Cases, 88 HARV. L. REV. 1057 (1975).
In recent years the latter approach has become most widely accepted by liberal theorists, but
reasoned elaboration continues to have substantial force among most practitioners and many
academics. CLS analysis has tended to concentrate on Dworkin's defense of the rule of law, in
parr because Dworkin's brand of liberalism represents the most serious intellectual challenge to
the radical vision. Critical scholars seem to be almost contemptuous of the reasoned elaboration
approach. See, e.g., Duncan Kennedy, The Substantive Inanity of What We Teach, in UTOPIAN
PROPOSAL, OR LAW SCHOOL AS A COUNTERHEGEMONIC ENCLAVE (1980) ("The whole reasoned
elaboration approach is a patent failure, and as far as I know no one has made a serious attempt
to defend it in print for about ten years"). But see ALTMAN, supra note 56, (defending reasoned
elaboration from CLS analysis).
HarvardInternationalLaw Journal / Vol. 32
to fit best the available doctrines, cases, and treaties: "the soundest
theory of law possible." 11' When the correct theory is applied to the
116
facts, the theory should determine a particular substantive outcome.
To be determinate, therefore, the rule of law must be capable of
two processes. Because it needs to construct some grander abstraction
or higher-level theory before it can resolve a case, liberal legality must
allow for determinate theorizing. Because it must apply abstractions
to concrete factual materials in such a way as to produce legal out-
comes, liberal legality must achieve determinate application. Critical
jurisprudence in international law has sought to demonstrate indeter-
minacy by showing the impossibility of either endeavor under the
logic of liberal legalism.
115. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 114, at 66-68.
116. I am not implying that abstraction must occur entirely before application, but that
adjudication under the rule o law will require at some time both abstraction and application.
Some liberals have suggested that the development of correct theories requires the theorist to
bounce back and forth between abstraction and reality, each time comparing the theory to
concrete life and altering it to fit reality better, until finally the theorist arrives at some sort of
"reflective equilibrium" about the correctness of the theory. See JOHN RAWLS, A THEORY OF
JUSTICE 48-50 (1973) (describing the process of reflective equilibrium).
117. See Kennedy, The Structure of Blackstone's Commentaries, supra note 51 at 211. Kennedy
describes the "fundamental contradiction" between altruism and individualism.
1991 / Critical Legal Studies
122. Kennedy, Form and Substance in Private Law Adjadication, supra note 51, at 1697.
123. KOSKENNIEMZ, supra note 3, at 46 (emphasis in original).
124. Id. at 44.
125. See KosKENNIEMI, supra note 3, at 449-57.
126. See id. at 45 5-56.
1991 / CriticalLegal Studies
D. InternationalLaw's Self-Validation
two levels. On the most basic level, sovereigns seem to take for granted
the propriety of engaging in international legal discourse (instead of
some other type of discourse) when they seek to resolve international
issues. Moreover, international law operates as though it makes a
difference. Sovereigns seem to debate international legal principles as
though they were determinate and coherent. On occasion, states seem
130
to act if they actually were "complying" with international law.
Sovereign acceptance of the rule of law as the appropriate mechanism
for structuring intentional state life represents the second source of
international law's authority.
Some scholars have claimed that international law's authority is
inconsistent with the radical picture of international law painted by
CLS scholars. 131 Consequently, the CLS perspective must present "a
theory that can illuminate more generally the occurrence of voluntary
normative 'compliance' . . . in the absence of coercion." 132 Very few
CLS academics have attempted to address this issue. 133 In this section,
I shall construct a theory about international law's authority consistent
with the other elements of CLS analysis. The theory contends that
international law is self-legitimizing. I shall introduce an anthropo-
logical theory that explains international law's authority in terms of
its cultural self-validation. 134 Subsequently, I shall briefly reintroduce
130. It may seem inconsistent with CLS analysis to understand state behavior as "compliance."
If international law doctrines are indeterminate, how do states comply with legal principles?
CLS can offer several explanations about why it seems as though states are complying with
international law. Perhaps states do not believe compliance is possible because they understand
international law's indeterminacy and they see "international law discourse [as] a conversation
without content." David Kennedy, Theses about International Law Discourse, 23 GERMAN Y.B.
INT'L L. 353, 376 (1980). But, sovereigns give lip-service to international law because they
find it in their interest to engage in legal discourse about international life. They may see
international law's substantive emptiness as a virtue, or as useful propaganda directed at those
who do not believe international law is vacuous.
Significantly, the CLS analysis of international law has not advanced an instrumental Marxist
explanation for state compliance. In that view international law would be understood as the
product of the interests of the dominant, wealthy, capitalist states. Other participants in the
international system would be understood to have accepted liberal ideology about international
life because of "false consciousness." To advocate either part of the instrumental Marxist critique
would conflict with CLS's own premises. "The problem with [the instrumental Marxist] approach
is that if liberal legal theory is internally self-contradictory, then it is simply not possible to
derive the rule system . . . as a disguise for the interest of the capitalist class." Kennedy, The
Struaure of Blackstone's Commentaries, supra note 51 at 363, n.56. Thus, it "is idealism [about
the determinacy of law] masquerading as materialism to play the instrumental Marxist game."
Id.
131. See ANTHONY D'AMATO, IS INTERNATIONAL LAW REALLY LAW? INTERNATIONAL LAW
PROCESS AND PROSPECT 1 (1987).
132. Thomas Franck, Legitimacy in the InternationalSystem, 82 AMER. J. INT'L L, 705, 705
(1988) (quotation marks added).
133. But see id.; KENNEDY, INTERNATIONAL LEGAL STRUCTURES, supra note 41.
134. The contemporary academics who have incorporated anthropological insights into in-
ternational law may not consider themselves part of the New Stream in international law theory.
In fact, some of what they have argued is entirely inconsistent with the CIS conclusions I have
presented. See, e.g., Franck, supra note 132.
1991 / Critical Legal Studies
3. Anthropological Self-Validation
Critical scholars have argued that the search for the normative or
historical origin of psychological pressure must be set aside if legiti-
macy theory is to help explain compliance with international law, just
as New Stream scholars have set aside similar concerns in other areas
of international legal discourse. Still, if the CLS conception of inter-
national law purports to be a coherent understanding of international
law, it must explain in some other manner international law's legiti-
macy. For insights into these questions, the New Stream group can
return to the intellectual insights that have influenced its analysis of
other international legal issues. Structuralism in anthropology seems
particularly relevant to the problem of explaining international law's
authority, yet very few CLS authors in international law have followed
that approach.
Structural anthropologists have sought to understand cultural au-
thority by ripping the deep-seated structure of culture apart, breaking
it down into smaller patterns and structures. 142 Unlike political and
ethical approaches, structural anthropological inquiries into legitimacy
consciously set aside the ethical and historical origins of sovereign
perceptions. Once the search for historical legitimacy has been aban-
doned, what is required is an understanding of how the process of
cultural organization in international life operates to create the world
and allow for change.143 Structural anthropologists have argued that
the resolution to this contradiction can only be found in the realm of
myth and cultural metaphor. 144
The mythical fabric of international culture permits sovereigns to
assert international law without defending its rational authority. Self-
validation occurs through the manipulation of cultural language, sym-
bols, and history. In this cultural soup, myth can acquire a flavor
of legitimacy capable of producing psychological obligations in sov-
ereigns. 145 Symbolic authority can be conferred on international rules
148. See Nicholas Onuf, Do Rules Say What They Do? From Ordinary Language to International
Law, 26 HARV. INT'L L.J. 386, 391 (1985); see also Kennedy, Theses, supra note 41, at 376.
HarvardInternationalLiw Journal / Vol. 32
then, I shall explore the New Stream's conception of the ideal con-
dition of international law.
149. In the wider body of CLS literature, more developed, although competing, utopian
images exist. It has become standard practice to divide the CLS movement into two strands of
utopian projections, differing in their hostility to the rule of law. The first and more radical
strand finds no place for the rule of law in its vision of justice; it envisions an ethical state
capable of achieving consensus without coercion. The foundations of the ethical state would be
non-liberal values that could transform our normative consciousness in such a way as to resolve
the fundamental contradictions of human existence. See e.g., Gabel, supra note 47.
The second and more moderate strand believes that the rule of law should be revised but not
discarded. The moderates are more sympathetic to the progress that liberalism has achieved
against more totalitarian and inhumane orders. They imagine a new set of institutions and
practices capable of avoiding social alienation and domination, and require an understanding of
humanity based as much on its social character as on its autonomy. Legal formalism would have
to be replaced with a commitment to informal legality that resolved social problems through
open political discourse. See, e.g., Karl Klare, Law-Making as Praxis, 40 TELos 123 (1979);
Morton Horwitz, Book Review, The Rule of Law: An Unqualified Human Good?, 86 YALE L.J.
561 (1977).
150. See Boyle, supra note 3, at 352.
1991 / Critical Legal Studies
151. See, e.g., KOSKENNIEMI, sapra note 3, at 498-50 1; Kennedy, New Stream, supra note
2, at 47-49; Boyle, supra note 3, at 352-59.
152. See Boyle, rupra note 3, at 352-59; Surakiart Sathirathai, An Understanding of the
Relationship Between InternationalLegal Discourseand Third World Countries, 25 HARV. INT'L L.J.
395, 415-19 (1984).
153. See KOSKENNIEMI, supra note 3, at 486-501; Boyle, supra note 3, at 352-59.
154. KoSKENNIEMI, supra note 3, at 486.
155. There is nothing particularly "legal" about this vision of international legal discourse.
The New Stream has had to disavow international law's claim to an external rationality in world
order solutions, and banish with it the image of the international lawyer as someone possessing
unique skills for arriving at those solutions.
156. KOSKENNIEMI, stupra note 3, at 486.
HarvardInternationalLaw Journal / Vol. 32
B. Modern Epistemology
162. Although the term post-modernism accurately conveys the separation between these
scholars and their predecessors, it obscures the degree to which they share the same intellectual
legacy. I shall argue that scholarship in the second half of the 20th century departs from the
central modernist insight of the complete impossibility of objectivity, which is the modernist
insight. In this sense post-modernism seems more accurately described as mature modernism,
163. KoSKaNNIEMI, supra note 3, at 462; see also CARTY, supra note 3, at 129.
164. Carry, supra note 3, at 129.
165. KOSKENNIEMI, supra note 3,at 478 ("To renounce critical reflection simply as one feels
that it will lead into nihilism is not in itself a rational counter-argument. It simply betrays
another, and possibly aggravated, version of nihilism as it argues, in effect, that it is better to
continue living in an illusion, whatever the consequences, rather than to analyze what part of
the illusion might be worth preserving and what simply obstructs constructive effort").
1991 / CriticalLegal Studies
166. Id. at 480-81. Here- "critical knowledge" should not be confused with the critical
theory of the Frankfurt School. The Frankfurt school thought it had developed a privileged
method through which it could observe the "false consciousness" of society. Such a claim requires
the critical theorist to reintroduce objectivity in the form of a truth, method or perspective from
which critical knowledge can be derived.
The New Stream theorists have sought to avoid such claims. They have understood that the
failure to emphasize their own subjectivity would repeat the errors of the Frankfurt school and
other early modernists.
167. The rule of international law also presents itself as rational. It purports to reject myth,
dogma, and irrationality. Yet, as CLS analysis of international law has shown, liberalism exists
as a set of self-validated definitions. Despite its surface commitment to rationality, liberalism
represents the epistemological antithesis to the rationalist project.
168. Boyle, rupra note 3, at 350. See also KOSKENNIEMI, supra note 3, at 476-90.
169. The line of inquiry I pursue here deserves systematic treatment of a type that lies outside
the scope of this article. However, if critical knowledge cannot sustain itself as an epistemology
distinct from objectivism, how to evaluate critical analysis becomes an open question. It seems
to leave a stark choice between objectivism and nihilism. If embracing the latter leads to
unacceptable chaos and anarchy, international law may need to return to a form of objectivism,
precisely because pseudo-objectified knowledge may be all that humanity can ever achieve.
Despite this potential at the highest level of abstraction to reduce critical knowledge to objec-
tivism about rationality, it remains meaningful to discuss at a lower level of abstraction the
difference between objective and critical knowledge. The former openly commits itself to some
unjustified and unjustifiable first principle about the nature of "the good" while the latter
attempts to avoid such a commitment altogether.
HarvardInternationalLaw Journal / Vol, 32
170. Because the production of critical knowledge is subjective, the process of adopting some
social meaning must be entirely political. Although the political character of knowledge suggests
its limitations, it does not compel a turn to nihilism.
171. KOSKENNIEMI, supra note 3, at 484.
172. See id. at 480.
173. See id. at 458-501; Boyle, supra note 3, at 352-59.
174. CARTY, supra note 3, at 114.
1991 / CriticalLegal Studies
3. Experiential Knowledge
Other New Stream scholars, usually those most strongly advocating
the move to political discourse, have found the limitations of critical
epistemology unacceptable. Although these scholars often begin their
analyses of international law with a commitment to modernist criti-
cism, they rarely conclude their studies without departing from the
uncommitted perspective it requires. 179 These scholars have sought to
reconstruct international law in a manner consistent with their critical
insights but capable of escaping the limitations of critical epistemol-
ogy. They have desired to make international law and international
lawyers more active participants in the formulation of a just world
order than pure modernism seems to allow. These reconstructionists
deny the limits of critical epistemology, even if they reject the view
that law contains an external, privileged vision of society. 180 In this
respect they abandon the critical method of the New Stream in their
final analytic moment, as though they were jumping off a runaway
freight train before it crashes.
Even the modernists seem to acknowledge that their devotion to
critical knowledge demands an unbearable silence about the nature of
international justice. Their writings reveal the divergence between
their intellectual and emotional commitments. Despite their intellec-
tual stand against objectivism, the modernist purists are often the
most vocal opponents of what they perceive as undeniable instances of
international injustice.""' Up to this point, however, they seem to
177. David Kennedy seems particularly inclined to eschew utopianism in favor of developing
critical knowledge from deconstructive analysis. See, e.g,, KENNEDY, INTERNATIONAL LEGAL
STRUCTURES, supra note 41.
178. Kennedy, Critical Theory, supra note 45, at 278-79.
179. See David Kennedy, Book Review, 31 HARV. INT'L L.J. 385 (1990) (reviewing Ko-
SKENNIEMI, FROM APOLOGY TO UTOPIA (1989) (suggesting that in the final chapter about the
role of international lawyers the author departs from the deconstructive technique he employs
elsewhere in the book); Boyle, supra note 3, at 352-59, (turning from deconstruction to utopian
speculation). See also Kennedy, Critical Theory, supra note 45, at 287-88 (demonstrating how
his own analysis of critical theory and structuralism outside the area of international law departs
from pure post-modernism).
180. KOSKENNIEMI, supra note 3, at 490-501.
181. See, e.g., David Kennedy, Spring Break, 63 TEx. L. REv. 1377 (1985) (presenting the
author's observations about human rights abuses in Uruguay).
1991 / CriticalLegal Studies
have only a pseudo-objective basis from which to argue for one con-
ception of justice over another. To demonstrate that a reconstructive
discourse about international law avoids the limitations of critical
knowledge, they must show that believing in objectivity is not a pre-
requisite to legitimately holding and acting on one's views. 8 2 There
needs to be a basis for choosing, a method of deciding within the
realm of conflicting political discourse.
To reconstruct a theory of programmatic knowledge, the New
Stream has turned to existentialist philosophy. 8 3 Although it shares
the modern skepticism about objective essences, existentialism departs
from the critical position in its affirmation of the possibility of know-
ing contextual truth. It believes that experiential knowledge can dem-
onstrate good reason to act on some preferences even without an
external guarantee of objectivity. New Stream scholars have used
experiential reality as a basis for moral conclusions about justice. 18 4 In
a sense they have "stressed the conventional character of truth-even
scientific truth."' 8 5 Experiential truths purport to escape objectivism
by making only a contextual claim about justice, rather than claiming
to have identified some transcendent essence.
The turn to experience and context leaves the existential episte-
mology vulnerable to either of two criticisms. On one hand, exper-
iential knowledge hides its objectivist trappings. Claims about exper-
iential reality purport to have discovered some context-bound
experiential fact. Although such claims seem more modest than the
universal truths of classicism, they nevertheless purport some truth,
making experiential judgment contextual objectivism. It suggests that
within the examined context of our collective experience, one can
know that a certain first principle is right.
Alternatively, suppose that the concept of experiential truth can
distinguish the New Stream's programmatic agenda from nihilism,
criticism, and objectivism. The move to experiential validity could
then also salvage alternative theories of international law. Liberalism,
for example, could contend that contextualism validates the rule of
IV. CONCLUSION
Early modernist theories of international law, like the classical
theories that preceded them, were described as incapable of producing
adequate explanations about the fundamental questions of world af-
fairs, namely the origin and basis of international law's authority. Over
the last decade, in response to the failures of early modernism and the
marginality of the international law discipline, a New Stream of
critical international legal scholarship has emerged.
The New Stream's critical analysis of international law has dem-
onstrated the incoherence of the liberal ethical basis of international
law, international law's constraining intellectual structure, the inde-
terminacy of international legal argument, and the self-validating
nature of international law's authority.
Its stated vision of an expanded and openly political or normative
international discourse has shown itself to conflict with the movement's
modernist premises. The modernist epistemological rejection of ob-
jectivity and the need to escape cynical nihilism has forced the New
Stream to accept a type of critical epistemology that has proven
incapable of advancing an affirmative vision of international life. It
seems, then, that the structure of rational argument requires inter-
national legal discourse to accept some pseudo-objectivity or to turn
to criticism. In the modern world neither conception of public inter-
national law seems capable of constructing an adequate vision of
international social life.