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VOLUME 32, NUMBER I, WINTER 1991

Critical Legal Studies in Public


International Law*

Nigel Purvis**

I. THE HISTORIOGRAPHY OF RECENT INTERNATIONAL


LEGAL SCHOLARSHIP: THE CRITICAL NARRATIVE

A. The Modern Perspective


Academia must have seemed an exciting place for international legal
theorists in the 1950s. For some thirty-five years international law
had been isolated from the rest of intellectual life by the necessities
and distractions of two world wars. By mid-century the insights of
modernist' thinking were only just beginning to influence the disci-
pline of international law. 2 A new breed of modern scholars of inter-
national law thought they were about to transform their discipline,
removing international law from the theoretical and doctrinal dishar-
mony that had characterized much of its history.
As these early modernists told the history of their discipline, their
predecessors, the classical scholars, who were ideologically split into
two opposing armies, had turned international law into a battlefield.

* 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

On one side, the "naturalists" 3 approached law as normative teleology.


The naturalists believed that international law had binding force on
sovereign states because law emanated neither from sovereign will nor
consent. Nature rather than states provided the source of law. On the
other side stood the "positivists," 4 whose world was normatively deon-
tological. They attributed the force of law to historically specific
sovereign consent: states rather than nature provided the source of law.
Since the Peace of Westphalia in 1648, classical international legal
theorists representing the poles of positivism and naturalism engaged
in conflict. 5 Each of the two warring factions purported to answer the
fundamental questions of international law. Each claimed to explain
the origin of international law, its status as law, its normative content,
and its transformative possibilities. Judged by the number of adher-
6
ents, positivism seemed to have slowly pushed naturalism into retreat.
The natural law theory was condemned as religious, arbitrary, subjec-
tive, unprincipled, and unknowable.
Nevertheless, even as the positivists advanced, it became apparent
that positivism was also vulnerable to valid criticisms from its meth-
odological adversary. 7 Positivism seemed excessively historical, unable
to assure that international law reflected the normative beliefs of the
day. Moreover, it seemed incomplete: neither codified law nor some
deduced historical intent produced a legal analysis capable of ade-
quately resolving international controversies. Theoretical discourse
about international law repeatedly exposed the weaknesses of the two
opposing positions without finding a way either to decide between

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

them or to overcome the division. 8 At less abstract levels, within the


doctrines of international law, the dichotomy between naturalism and
positivism was played out in a variety of analytic categories. The
disharmony of the discipline made all theoretic enterprises seem
impossible.

B. The Move to Modern Pragmatism


It was with this historical understanding that international legal
scholars sought to apply the insights of modern thought. Frustrated
by the apparent indeterminacy of international legal theory, the gen-
eration of scholars that came to maturity immediately after the Second
World War sought to "make a virtue out of a necessity." 9 They turned
to pragmatism, a modern consequential philosophy that emphasized
institutional process, functional progress, or rule centered doctrinal
specificity, while denying the relevance of coherent abstraction.
In the United States the pragmatists sought to incorporate the
modernist insights of Legal Realism' ° into international law, to make
legal argument contextual. They "self-consciously blurred the bound-
aries" of international law,' 1 and desired to expand international law
beyond theoretical- abstraction and the rigid application of doctrinal
formality by applying interdisciplinary approaches to the law. 12 In
Europe, where Legal Realism had far less impact on international legal
scholarship, pragmatists sought to practice and study international
law without attempting to justify its existence.
In sum, the pragmatists "approached international law with the
implicit assumption that the problems of theory [were] non-problems
and that sociological and normative issues of world order [could] be
best treated by closely sticking to one's doctrinal task of analyzing
valid law."' 3 The modernists set about to move international law
beyond its classical dilemma. They filled international legal discourse
with tremendous enthusiasm and optimism. They had faith in the
potential of functional international institutions as mechanisms for
harnessing the excesses of sovereignty. Ultimately, they hoped their

8. See KOSKENNIEMI, supra note 3, at xv.


9. Id. at xiv.
10. Legal Realism, which set itself in opposition to legal formalism, emerged during the
1930s, primarily at Yale and Columbia. See, e.g., Felix Cohen, Transcendental Nonsense and the
Functional Approach, 35 COLUM. L. REV. 809 (1935); The Ethical Basis of Legal Criticism, 41
YALE L.J. 201 (1931); Karl Llewellyn, Some Realism About Realism, 44 HARv. L. REv. 1222
(1931); A RealisticJurisprudence--TheNext Step, 30 COLUM. L. REV. 431 (1930).
11. Kennedy, New Stream, supra note 2, at 4.
12. See id. at 4, 5, 26.
13. KOSKENNIEMI, supra note 3, at xiv.
HarvardInternationalLaw Journal / Vol. 32

efforts would establish a new order based on peace and substantive


justice.
"Unreflective pragmatism" 14-of the type that involved applying
valid law and established doctrines without engaging the larger ques-
tions of international legal theory-proved impossible. To avoid the
problems of theory, the pragmatists retreated to subject-specific doc-
trine. Doctrine was commonly thought to be the substance of inter-
national law, and the pragmatists believed that the concreteness of
doctrinal analysis could give international law binding force, despite
the continuing inaccessibility of a universal, coherent theory. Yet no
sooner had the pragmatists rejected the need for theory than they
discovered that the derivation of a particular doctrine, its internal
coherence, and its application to a specific international legal issue,
all necessitated fitting the doctrine into some abstract theory about
how doctrines came to be legitimate. 15 In short, the pragmatists were
inevitably forced to re-enter the debate about theory where the familiar
indeterminacy of the positive and natural law positions reappeared.
What emerged from the efforts of the post-war scholars was a modest
"conceptual pragmatism."1 6 Conceptual pragmatists sought to use doc-
trinal analysis to mediate between positivism and naturalism. Rec-
ognizing the need for abstraction, they sought to turn abstraction into
functionalism; their work valorized pragmatic abstraction about pro-
cess and institutions, producing a fantastic diversity of idiosyncratic
theories about international law. Numerous schools of conceptual prag-
matism developed. Most important among them were "Rule-ap-
proach,"' 7 "Policy-approach,"' 18 Skepticism, 19 and Idealism. 20 Each
school was "distinctly modern in its attempt to distance itself from
earlier naturalism and positivism." 2 ' Each hoped to construct a view

14. Id. at xiv.


15. See Kennedy, New Stream, supra note 2, at 27-39; see aho KOSKENNIEMI, fupra note 3,
at 131-60, 187-91.
16. Kennedy, New Stream, supra note 2, at 1-7. See KOSKENNIEMI, supra note 3, at 13 1-91.
17. The Rule-approach school included such theorists as Schwarzenberger, Brierly, and Op-
penheim. They emphasized abstracted doctrinal definitions and rules. Compared to other con-
ceptual pragmatists, their work was most reminiscent of pre-modern formalism. See KoSKEN-
NIEMI, supra note 3, at 160-67.
18. See infra notes 26-30 and accompanying text.
19. The Skeptics considered themselves realists. Within their ranks were such important
scholars and famous statesmen as Kelsen, Gross, Henkin, Morganthau, Kennan, and Arheson.
They considered international law to be no more than what nations did in fact, and they preferred
description and resisted abstraction. See KOSKENNIEMI, supra note 3, at 167-70.
20. The Idealists, who included Alvarez and Dedjaoui, were prone to speculate about the
existing normative character of international social life. Id. at 178-87.
Some contemporary scholars see the four groups as representing an exhaustive list of analytic
positions available to international law theorists. Despite the presence of four "schools," however,
most of the international legal scholars of this early modernist period tended to shift from one
position to another in response to criticism. See KOSKENNIEMI, supra note 3, at 154-91.
21. Id. at 187 (emphasis in original).
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

22. See id. at 189.


23. See id. at 131-91.
24. Any other modernist theory of international law would suffice just as well for this purpose,
but since the Policy-approach continues to be widely practiced, its failings seem particularly
suitable for illustrative purposes. See KOSKENNIEIfl, supra note 3, at 136; Onuf, supra note 4,
at 45 n. 143.
25. See, e.g., Myres McDougal & W. Michael Reisman, International Law in Poliy-Oriented
Perspective, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAw 103-129 (R. Macdonald
& D. Johnston eds. 1983).
26. See INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE (M. McDougal & W. Reisman
eds. 1981); Note, The Lasswell-McDougal Enterprise: Toward a World Public Order of Human
Dignity, 14 VA. J. INT'L L. 535 (1974) (quoted in Phillip Trimble, Review Essay, International
Law, World Order, and CriticalLegal Studies, 42 STAN. L. REV. 811, 814 (1990)).
HarvardInternationalLaw Journal / Vol. 32

idiosyncratic and subjective normative hierarchy became apparent. 27


To McDougal, for example, human dignity seemed entirely equivalent
to the constitutional liberalism of the United States. Once reduced to
contextual terms, the Policy-approach could not achieve universality.
Absent a consensus on the nature of human dignity, any substantive
theory based on the Policy-approach necessarily became vulnerable to
the same criticisms as naturalism.
The point here is not only that the Policy-approach could be col-
lapsed into naturalism, 28 but also that it, like all forms of modern
conceptual pragmatism, failed to escape the naturalism/positivism
debate. To be sure, the new conceptual categories of modernism altered
the locus of the classical tension. Where classical scholars debated the
unifying theory of the international order, modern scholars debated
the relevance and substance of their conceptual categories, such as
human dignity. Within their pragmatic concepts the naturalism/pos-
itivism indeterminism reemerged in other dichotomies: idealism/re-
alism, normativity/concreteness, rules/processes, law/policy, and uto-
pias/apologies. 29 Each of these dichotomies paralleled the irreconcilable
sides of the classical debate. The conceptual pragmatists merely de-
scribed in doctrinal terms the same set of fundamental questions that
plagued classical scholars: they described the origin of international
law, its status as law, its normative content, and its transformative
possibilities. In the end, early modernism was an unsuccessful struggle
to escape the traditional dichotomy between positivism and
3
naturalism. 0
Thus, during the 1950s and 1960s international legal scholarship
in the United States involved exposing the theories of competing
schools as "neo-positivism," "neo-naturalism," or both.31 Conceptual
pragmatism's failings could be traced to the inability of doctrinal
analysis to animate international legal issues without first pegging

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.

C. The Marginality of the Discipline


By the 1970s the crisis in international law theory had reduced the
discipline of international law to marginality 32 and the product of its
scholars and practitioners to mere utopian speculation. 33 International
legal scholars were forced to admit the impossibility of theory, its
avoidance, or its mediation through doctrinal specificity. As interna-
tional law itself became suspect, international legal scholars and theor-
ists were condemned to irrelevance. Not surprisingly, scholars contin-
ued to exhibit "defensive enthusiasm" about the importance of their
subject, but it came to be combined with "corrosive skepticism" about
the possibility of meaningful scholarship. 34 "No one seemed to think
that international law was intellectually rich . . . . No one seemed to
think international legal theory could offer more than an easy patois
of lazy justification and arrogance for a discipline which had lost its
way and kept its jobs." 35 Similarly, practitioners of public international
law were asked to be bureaucrats or "laborer[s] in an institutional
plant that no one believed was able to respond to international racism,
inequality or violence." 36 The image of international law as a partici-
pant in the fight against injustice had vanished.
Many of the images of international law that were developed in the
1970s persist today. Within the greater part of the United States legal
establishment, the marginality of international law continues. "To
academics and practitioners alike, international law is a peripheral
enterprise." 37 Indeed, international law essays are very rarely published
in major law reviews. 38 Establishment academics "regard international
law as well meaning, even noble, but naive and largely irrelevant to

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

the real world." 39 To many, the appropriateness of international law's


obscurity and the hopeless utopianism of its practitioners seem hardly
questionable. After all, rarely had so many legal scholars tried to
conquer, and then avoid, the intellectual problems of a single disci-
pline. Rarely were the scholars of a discipline so intellectually spent.
In this context it is both remarkable and inevitable that the discipline's
acceptance of its marginal role in the struggle for the new international
order would not last.

D. The New Stream of InternationalLaw Scholarship


Over the last decade, a "New Stream" 40 of international legal schol-
arship has emerged. 4' One of its most distinguishing features has been
its hostility toward conceptual pragmatism. The New Stream has
assailed pragmatism for its unreflective "incoherence" and "timidity. "42
It has sought to "dislodge the discipline of international law from its
stagnation in post-war realism ... and rejuvenate the field as an arena
of meaningful intellectual inquiry .... -43
Fully recognizing the inadequacies of traditional international legal
theories and doctrines, the New Stream of international legal writing
has sought to renew the coherence of the discipline. It has sought to
make academic analysis of international law coherent-even if the
coherence of its subject could not be saved. In this sense the New
Stream scholars have been as reflective about the discipline of inter-
national law as they have been about the nature of international social
life, international law's traditional preoccupation. Collectively, they
have sought to wash away the idea that the discipline of international
law was only a bureaucratic player in the struggle for justice in the
international arena.
With these goals in mind, the New Stream has imported into
international law tremendously diverse methodological approaches.
These contemporary international legal theorists have incorporated
insights from normative philosophy, critical theory, structuralism,
anthropology, prepositional logic, literature, sociology, politics, and

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

psychiatry. 4 Despite its methodological diversity, the New Stream is


channeled by its position within the larger legal and intellectual
climate. The New Stream in international legal theory stands as part
of a broader movement in contemporary legal theory commonly 4
known
as Critical Legal Studies (CLS) or critical jurisprudence.
The CLS movement has brought the radical insights of modernism
into law. The intellectual origins of the movement are in Legal Re-
alism, New Left anarchism, Sartrean existentialism, neo-progressive
historiography, liberal sociology, radical social theory, and empirical
social science. 46 Critical jurisprudence has sought to expose political
choice, discredit the "rights" discourse of liberal legalism, demonstrate
the indeterminacy of law, and reveal the bias of liberal ideology. It
has aimed to demonstrate how law, through its capacity for "reifica-
'
tion," 47 "mystification," 4 "legitimation, ' 49 and "obfuscation, " 50 rein-
forces social injustice. To the extent that they have been articulated,
CLS's visions about the ideal condition of law require a transformation
of law that would eliminate all forms of "alienation," "domination,"
51
and "subjugation" from social life.
The national origin of contemporary critical international legal
theory is difficult to place. On one hand, the New Stream is distinctly
European. The movement finds its intellectual roots in early twentieth-
century continental Europe-particularly in critical theory and struc-
turalism. Moreover, of the three book-length manuscripts on inter-
national theory that have adopted a critical perspective, two were
written by Europeans. On the other hand, the contemporary academic
context for New Stream international legal theory has been unambig-
uously American. Like CLS generally, the vast majority of New Stream
writing has been produced by scholars in the United States and

44. See, e.g., Kennedy, New Stream, supra note 2, at 9.


45. See Kennedy, Critical Theor, Structuralism and Contemporary Legal Scholarship, 21 NEW
ENG. L. REV. 209, 210 n. 1 (1985-86) (explaining that CLS is an "unstable coalition of legal
academics united by their commitment to a form of radical eclecticism reappraising basic
approaches to legal scholarship").
46. See id.
47. See generally Peter Gabel, Reifiration in Legal Reasoning, 3 RES. L. & Soc. 25 (1980).
48. Seegenerally MORTON HoRwiTz, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860
(1977) (explaining the mystifying character of law).
49. See generally Gabel, supra note 47 (discussing the connection between ideology and
legitimation).
50. See generally Karl Klare, Law Making as Praxis, 40 TELos 123 (1979) (discussing how
law obfuscates political choice).
51. These ideas have been used by critical scholars who see a transformative possibility in
law or have speculated about the utopian possibilities of law. See generally ROBERTO UNGER,
SOCIAL THEORY: ITS SITUATION AND ITS TASK (1987); LAW IN MODERN SOCIETY (1976);
KNOWLEDGE AND POLITICS (1975); ALASDAIR MACINTYRE, AFTER VIRTUE (1981); Duncan
Kennedy, The Structure of Blachtone's Commentaries, 28 BUFFALO L. REV. 205 (1979); Form and
Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976).
HarvardInternationalLaw Journal / Vol. 32

published in American law journals. Significantly, the New Stream's


modern historiography has tended to concentrate on American scholars
52
as well.
The methodological openness and common intellectual legacy of
the New Stream scholarship make generalization about it meaningful.
Developing those generalizations is my project in this article. I shall
examine the insights, themes, and conclusions common to the new
theoretical scholarship, and will synthesize the CLS visions of inter-
national law's ideal condition in international social life.

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

rich historical mixture that represents international law's substance


and procedure-including its doctrines, cases, institutions, and the
like. In doing so they share the traditional academic commitment to
working within our historical and empirical foundations. Despite this
greater abstraction, I shall try to remain faithful to the New Stream's
analysis. I shall attempt to present the theories of the New Stream in
the critical movement's own voice examining where the theories lead
without for the moment questioning their underpinnings.
My goal is to use CLS in international law to present as seamless,
coherent, and strong a theory about international law as the New
Stream literature will allow. " I shall treat it as a coherent intellectual
movement. In truth, the New Stream cannot yet qualify as a move-
ment. It exists as a recent trickle of late modernist international legal
scholarship, which may or may not channel itself into a full-fledged
stream. The contemporary international legal scholars upon whom I
rely are few in number-just over a dozen in all, with only a handful
of those having written book-length contributions to the discipline.
Moreover, the scholars within the New Stream may well resist my
project as it self-consciously blurs the lines between their distinctly
individualized theories. Nevertheless, as I have already argued, the
commonality within the new scholarship makes generalization about
it meaningful.
In short, I plan to present a unified theory from the common
elements of New Stream writing, to explore the conclusions produced
by that theory and thereby to discover what limitations are inherent
in its own theoretical structure. Ultimately, I want to wade into the
56
New Stream, to direct it and be directed by it.

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

II. CLS ANALYSIS OF INTERNATIONAL LAW


According to its own adherents, the insights of New Stream schol-
arship have been directed against "the tragic voice of post-war public
law liberalism." 5 7 As will soon become evident, this section gives the
New Stream a distinctly anti-liberal voice, which some in the move-
ment may not recognize as their own. Indeed, a healthy part of the
New Stream, as in CLS generally, consists of self-declared super-
liberals attempting to develop adequate social institutions that can
react to the tragedy that liberalism has identified. In contrast, others
in the movement have advanced an unambiguously anti-liberal con-
ception of international legal' discourse. I have chosen to present CLS
analysis of international law in a manner consistent with the latter
group because, for reasons explained in the last part of this article,
the New Stream seems most coherent and rigorous when it remains
hostile to liberalism.
The critical attack on liberalism has advanced on four principal
fronts.5 1 Contemporary international law scholars have maintained
(1) that the logic of liberalism in international law is internally in-
coherent; (2) that international legal discourse operates within a con-
strained structure; (3) that international legal analysis is indeterminate;
and, (4) that whatever authority international law may have is self-
validated. These criticisms parallel claims made by CLS scholars out-
side the area of international law, but only rarely have they been
systematically discussed as a unified theory of international legal anal-
ysis. 59 In this section, I shall introduce each of the four arguments.

57. Kennedy, New Stream, supra note 2, at 2.


58. The terms liberal and liberalism have come to mean many things. Most CLS writers have
associated those terms with an intellectual position that accepts a distinctive set of ideas and
values, the central tenets of which are outlined in the next section of the text. In a sentence,
however, to be liberal is to believe that the individual is an autonomous moral agent. That
position has been embraced by various segments of the political spectrum, among them classical
liberalism of the type prevalent in eighteenth-century America and Europe; philosophical lib-
ertarianism of the liberty-and-property-minded political right; and modern, democratic liber-
alism of the type not so dissimilar from mainstream politics in the United States since the
Depression.
As I shall explore in the next section, the CLS critique of liberalism rests primarily on the
contradiction betwaeen subjective value judgments about what constitutes moral action and
objective value judgments required for legal rules of prohibition. Despite the tone of contem-
porary anti-liberal rhetoric, many modern liberals have themselves understood the incongruities
of their own premises. Interestingly, modern-day conservatives, to the degree they openly accept
the possibility of objective truth above individual value, escape the CLS critique of liberalism.
However, conservatism of this type remains hopelessly ignorant of and vulnerable to the basic
insights of modernism.
59. But see KOSKENNIEMI, supra note 3 (providing the most complete book-length synthesis
of CIS analysis and international law, although making only passing mention of the importance
of liberalism's ideological structure and law's self-validation); KENNEDY, INTERNATIONAL LEGAL
STRUCTURES, supra note 41 (presenting an impressive rhetorical examination of international
law's international argumentative movements, but ignoring its ethical basis).
1991 / CriticalLegal Studies

A. The Logic of Liberal Ethics and InternationalLaw

1. The Incoherence of Liberalism in International Law


Critical jurisprudence in international law has sought to demon-
strate that the dominant conception of international social life-based
on liberal ethics-is internally incoherent. 60 Before discussing inter-
national law's coherence, I must briefly explain the importance the
New Stream attaches to its first critique. To some critical scholars,
logical purists of a sort, theoretical incoherence is itself tantamount
to proof of the inadequacy of the liberal conception of international
life. This hostility toward contradiction squares well with much of
traditional academic analysis. To others in the movement, incoherence
matters little, except to the degree that liberal international legal
discourse denies its own nature. By preserving the illusion of coher-
ence, liberalism falsely elevates international law to a level of authority
it cannot sustain. Ultimately, international law's obvious incoherence
makes its traditional discourse useless and unconvincing. With either
objection in mind, the coherence of liberalism becomes an issue.
Liberalism in international law, as elsewhere, can be understood as
a philosophy that combines an atomistic psychological assumption
with a radical epistemology about morality. 6 1 The liberal psychological
understanding of international law conceives of sovereignty as being
the foundation of international life. This statement expresses several
insights that deserve to be unraveled. To begin with, international
life is sovereign-centric. Sovereigns are both the subjects and objects
of international life. No "natural" world order pre-exists the sovereigns'
appearance. Social ends are merely objectives that sovereigns hold in
common, and world order represents nothing more than a social
contract among sovereigns. Sovereignty also assumes an indivisible

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

quality. Put another way, sovereignty is atomistic; it is international


life's unencumbered basic unit. Liberalism's metaphoric expression of
this concept equates sovereigns to individuals. 62 In sum, the liberal
psychology about our world portrays sovereignty as being all there is
to international life. Sovereignty claims for itself a transcendent qual-
ity, as would an objective truth or an unexamined first principle.
The second premise of liberalism is the principle of subjective
value. 63 This radical epistemology emphasizes that moral truth and
moral worth are subjective, because as an epistemological matter
universal morality is unknowable. There is no accessible "objective
value," "intelligible essence, '65 "virtue," 66 or Platonic form. There
can be "no natural distinctions among things, nor any hierarchy of
essences that might serve as the basis for drawing up general categories
of facts and classifying particulars under those categories." 67 There can
be nothing about an idea that is central to its meaning or name. To
use a classic example, chairs do not contain something which we can
universally identify as "chairness."
The two primary assumptions of liberalism inevitably lead to a few
additional propositions. In particular, liberalism must claim that de-
cisions about morality can only be made by the international order's
atomic components, its sovereigns. 68 Subjectivity requires that, at the
level of the sovereign, all moral choice is equally valid. True communal
values-in the sense that group values equal something other than
the sum of the group's sovereign parts--do not exist. 69 To insist

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

otherwise would detach decisions about value from sovereignty and


reintroduce objectivity. Liberalism must also embrace the principle of
moral sovereign equality. 70 States must be equal in the moral sense,
because no pre-existing objective morality can judge their conduct.
They alone are the subjects and objects of international life.
Together, these fundamental assumptions of liberalism compel a
particular vision of politics and law. As for politics, the atomistic
existence of sovereigns and the principle of subjective value require
liberals to believe that the only legitimate system of governance is one 71
based on liberty and with liberty as its only substantive commitment.
A world order based on liberty is said to free sovereigns to determine
value in the market place of ideas. 72 In fact, the pursuit of a world
order (or lack thereof) that maximizes sovereign liberty is the only
legitimate goal of international relations: 73 a substantive notion of
justice would introduce objective value and deny the primacy of
sovereignty.
At a sufficiently elevated level of abstraction, liberal political theory
seems logical. But as one makes concrete the meaning of liberty,
liberalism risks incoherence. In concrete terms, liberty must include
not only the freedom of sovereigns to act, individually or collectively
based on consent, but also the freedom of other sovereigns to act in a
manner entirely at odds with the first sovereign or sovereigns. At any
moment, the liberty of the first sovereign seems capable of quashing
the liberty of the others, and vice-versa. To avoid incoherence, liber-
alism must find a way to square competing claims of sovereign liberty.
ILiberalism leaves the challenge of defining spheres of
sovereign
liberty to international law, with liberal legality being based on the
rule of law. 74 In international relations the rule of law is a set of
prescriptive rules governing sovereign conduct. 75 Its principal com-
mitment is formal equality, meaning equal treatment with respect to
rules. "The language of formal equality is a language of rights as
abstract opportunities to enjoy certain advantages .... 76 Interna-
tional legal principles are said to enforce those rights neutrally and
objectively. International law's claimed objectivity comes then from a
purported ability to apply abstract principles to concrete problems,

70. SeeUNGER, KNOWLEDGE AND POLITICS, supra note 51, at 76-81.


71. SeeKOSKENNIEMI, supra note 3, at 64-67.
72. Seeid. at 64-65.
73. Seeid. at 65.
74. For a spirited definition of the ruleof law by a CLS scholar see Klare, supra note 50, at
132 n.28.
75. SeeKOSKENNIEMI, supra note 3, at 52; ef. UNGER, KNOWLEDGE AND POLITICS, Supra
note 51, at 69. The characteristics of law are its generality, uniformity, publicity, and coercion.
Seeid. at 73.
76. UNGER, KNOWLEDGE AND POLITICS, supra note 51, at 74.
HarvardInternationalLaw Journal / Vol. 32

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

77. KOSKENNIEMI, .fupra note 3, at 65.


78. For a discussion of the "harm principle," see KOSKENNIEMI, supra note 3, at 65-68.
79. Seeid.at 68.
80. Seeid.at72.
81. SeeUNGER, KNOWLEDGE AND POLITICS, supra note 51, at 80, 88-100.
1991 / Critical Legal Studies

liberalism's incoherence. In short, neither rules nor distinctions can


resolve disputes between conflicting sources of liberty in international
life.
Moreover, liberalism's explanation of the origins of international
law is incoherent. 8 2 It is said that the sovereigns of classical Europe
met at Westphalia and formed a social contract that both legitimated
their existence as sovereigns and was legitimated by their sovereign
power. 83 As a matter of logic, the contracting states could not create
their status as sovereigns and then rely upon it to justify their creation.
Similarly, the liberal theory of politics contradicts itself. The primacy
of liberty cannot be reconciled with radical skepticism about objective
value. The principle of subjective value denies the very existence of
any substantive commitment, including a commitment to liberty. In
sum, "if liberalism preserves its radical skepticism about values, then
it cannot ground a coherent problem-solving practice. . . . [Alterna-
tively,] if it makes reference to the objective nature of some values it
will conflict with itself."'8 4

2. Liberalism in International Law and Justice


The CLS analysis of international law has relied on a critique of the
internal logic of international law to suggest the inadequacy of liber-
alism's explanation of international life. In a culture dominated by
liberalism, rational argument cannot lead to moral consensus about
what constitutes a just order. The principle of subjective value pre-
cludes the possibility of an objective truth from which a theory of
justice can be derived. Moral consensus, to the degree it exists, is only
the sum of moral decisions made by sovereigns. Given moral disagree-
ment between them, logic cannot reconcile their positions.
International society cannot come to have a theory of justice by
creating a democratic or pluralist theory of justice from the competing
theories because we possess no rational way of weighing the claims of
one against another.85 Even the metaphor of weighing is inappropriate
and misleading.8 6 Any system of deciding or acting must rest on a
political theory, like majority rule, which by itself embodies a sub-
stantive commitment of the type subjective value precludes. Any
program for action must accept some first principle as essential to the
correct method of proceeding. The validity of that principle conflicts

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

with liberalism's fundamental belief in the lack of intelligible essences.


Liberalism itself makes no room for a theory of material justice in the
world because it imagines the pursuit of liberty as the only legitimate
substantive objective. And yet, as we have seen, liberty itself cannot
stand as the liberal theory of justice because the commitment to liberty
itself conflicts with the principle of subjective value.
The impossibility of sustaining a compelling vision of world justice
consistent with liberalism has led New Stream scholars to characterize
liberalism as an inadequate explanatory theory of international social
life. Just because liberalism's own assumptions deny the possibility of
knowing international justice does not, however, prove liberalism's
inadequacy. It may just be that a rational theory of social justice is
impossible, despite our intuitive, historical, and moral commitment
to it.
On the other hand, the denial of something which seems so central
to our existence may suggest that the premises responsible for this
denial should be revised. Perhaps one or both of liberalism's assump-
tions-the primacy of sovereignty and the principle of subjective
value-should be discarded. One may have to concede that it is not
possible to maintain both a radical skepticism about moral value and
a sovereign-centric super-norm. Perhaps some alternative ethical basis
for international life can sustain rational moral discourse. If the theory
of justice based on liberty is incoherent and any other substantive
theory of justice is impossible, then whatever order liberalism has
given international life is precarious. A "community which lacks
practical agreement on a conception of justice must also lack the
7
necessary basis for political community."T

B. The Structure of InternationalLaw


In their second critique of liberalism, CLS scholars contend that
traditional international legal reasoning operates within a restricted
intellectual structure. This structure makes international law narrow-
minded. International law accepts only some goals and values. Some
arguments qualify as international legal arguments but others do not,
and international law rules out some conceptions of international life
altogether. The implications New Stream scholars have derived from
the exposure of international law's structure have been threefold. They
have maintained that: (1) the presence of structure reveals the existence
of political choice within international law, (2) the existence of struc-
ture demonstrates the bias of international law, while simultaneously

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

denying its claims of objectivity and neutrality, and (3) international


law's denial or ignorance of its own structure serves to obscure the
existence of that structure, which seems intolerable in light of the first
two points. Critical scholars have identified two structural forces
within international law. They maintain that legal reasoning in inter-
national law is constrained by the ideological underpinnings and pat-
terns of legal argument inherent in liberalism.

1. Liberal Ideology in International Law


Critical scholarship has sought to demonstrate that international
law reflects the structure of its ideological underpinnings. 88 The in-
tellectual origins of the recent critique of international law's ideology
can be traced to "critical theory." 8 9 Critical theorists define ideology
as a system of ideas that combines a reified 90 characterization about

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

what "is" in the world, with a normative affirmation that it-the


reified characterization-"ought" to exist. Because the foundation of
an ideology is normative, its structure can have only a normative
justification. It can remain neither neutral nor objective.
CLS analysis of international law has sought to reveal the ideological
structure of liberalism through liberalism's theory of politics and
sovereign-centric conception of world order. I shall begin with the
liberal theory of politics. Liberalism's political theory purports to be
neutral, advancing only the goals of liberty and procedural justice. "It
is difficult to understand liberalism as materially controlling because
it does not accept for itself the status of a grand political theory. It
claims to be unpolitical and is even hostile to politics." 9 1 It purports
to be a procedural principle, "merely an objective neutral structure
92
within which different political theories compete for influence,"
The liberal theory of politics, however, introduces more substance
into international life than it admits. Liberal political theory began
with an intellectual abstraction about how a system of governance
could be produced. Rather than advancing liberty as a substantive
goal, however, liberalism claims that it is a descriptive principle of
the structure of international relations. Liberty is thus reified as an
element of reality. Liberalism collapses the "is" of existence with the
normative "ought." Substantive content creeps into the resulting ide-
ology with the assertion that impediments to liberty as an organizing
principle should be removed, and liberty thereby "maximized." While
liberalism promotes the exaltation of liberty as the neutral procedural
system of governance through which all other goals can be achieved,
it inherently preempts and precludes alternative conceptions of inter-
national law with which it conflicts.
The ideological structure of international theory reveals itself even
more dramatically in the concept of sovereignty. Liberalism purported
to explain the ordering of the world through the abstract notion of
sovereignty, a particular theory about the origin and nature of state
power. It accepted this abstraction as both a description of the world
and as a "natural" system of world order. "Sovereigns" were considered
not just as abstract terms, but actual entities.
Liberalism collapses the "is" and "ought" by never questioning the
rightness or propriety of dividing international life into spheres of
sovereign authority. Liberalism suggests that sovereigns simply are,
and do not need to be justified. But sovereignty, like liberty, does not
rest on purely descriptive grounds. The doctrines of liberal public
international law guard against its erosion. Like all natural law claims,

91. KOSKENNIEMI, Supra note 3, at xvii.


92. Id. at 64, n.49 (emphasis in original).
1991 / CriticalLegal Studies

the sovereign-centric theory of world order is normative. It must


necessarily present itself as an ethical and political statement about
the way international life ought to be structured. What began as an
abstraction about international life became an objectified assumption
about the way the world really was, until finally it assumed the
normative content of an unquestioned and unquestionable truth.
New Stream scholars have desired to expose liberalism's internal
structure. Liberal ideals, however, maintain such a tight grip on our
consciousness that is has become difficult to imagine a world order
built on some principle other than sovereignty. 93 Liberal ideology does
more than just structure international life, it fills it with normative
content. It defines, normatively and structurally, the context within
which we consider issues. We see international relations in terms of
sovereign authority. Liberal ideology provides the mode of governance,
based on liberty, and a dispute resolution process, based on the rule
94
of law.
The normative structure of international law operates at many levels.
It defines what jurists consider legal reasoning. In the process of
adopting some peremptory norms and foreclosing others, liberal ide-
ology establishes the boundaries of legitimate argument. 95 Since ide-
ology defines the type of solutions legal argument is capable of pro-
ducing, the substantive and procedural rules of international law are
96
shaped by liberalism's ideological structure.

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

From the insight that international law has a normative structure


directing its content, New Stream scholars have sought to establish
several principles. Normativity in law implies choice, that is, there
exists no autonomous non-normative rationale to prefer one norm over
another. Liberalism has accepted some norms, including liberty and
sovereignty, while rejecting others. By presenting itself as a neutral
and objective system, liberal legality provides no awareness of the
political and moral nature of its hidden substantive commitments. By
examining liberalism through critical theory, the normative postulates
of liberalism can be acknowledged and compared with alternative
97
visions of international social existence.

2. Public International Legal Argument


Critical legal scholars claim that international law is itself molded
by the structure of international legal argument. The requirements of
public international law necessitate a particular form of legal reason-
ing, privileging certain types of arguments and outcomes. The intel-
lectual foundation for this insight can be traced to a particular style
of inquiry that evolved through "structuralism" to "post-structural-
ism."98 Structuralism has become the foundation for two types of
analysis in international law. The first treats international law as a
unified body of static doctrines. Static structural analysis seeks to show
that "a rather small set of argumentative maneuvers and doctrinal
distinctions repeat themselves in a wide variety of different contexts

97. KOSKENNIEMI, supra note 3, at xxiii.


98. Structuralism refers to the work of a group of largely French academics and philosophers
who studied in a number of fields between 1900 and 1970. See Kennedy, Critical Theory, supra
note 45, at 248-7 1. Structuralism purports to study the process of creating meaning (bricolage).
Structural theorists believed that communicative words (parole) were structured by a deeper
language (langue). They explained that those who create meaning (bricoleurs) do so without
acknowledging that they are creative at all. Bricoleurs manipulate the deep structures of the
langue to create what seems like a mere description at the parole level.
Structuralist analysis of the deeper structure of langue produced significant work in linguistics,
anthropology, and literary criticism. The post-structuralists have taken exception with what they
perceive as the false objectivism of structuralists, but they have carried on studying the process
of meaning creation. For a discussion of the relation between structuralism and post-structur-
alism, see JONATHAN CULLER, ON DECONSTRUCTION: THEORY AND CRITIcISM AFTER STRUC-
TURALiSM (1982); Kennedy, Critical Theory, supra note 45, at 271-89.
Contemporary legal scholars have incorporated the insights of structuralism and post-struc-
turalism. For examples of structural analysis in international law, see KENNEDY, INTERNATIONAL
LEGAL STRUCTURES, supra note 41; KOSKENNIEMI, supra note 3. Outside of the specific context
of international law, see Kennedy, The Structure of Blackstone's Commentaries, supra note 51; Form
andSubstance in Private Law Adjudication, supranote 51; Gerald E. Frug, The Ideology of Bureaucracy
in American Law, 97 HARv. L. REV. 1277 (1984); The City as a Legal Concept, supra note 95;
Gabel, supra note 47; Stanley Fish, Working on the Chain Gang: Interpretationin Law andLiterature,
60 TEx. L. REV. 551 (1982). For rich descriptions of structuralism in law, see Thomas Heller,
Structuralism and Critique, 36 STAN. L. REV. 12 (1984); Kennedy, Critical Theory, supra note
45, at 248-89.
1991 / CriticalLegal Studies

throughout public international law .. ..,99 The static approach has


set out to reveal the structure of the "recurring patterns of argument"
in international law. 100 It has sought to use these patterns to under-
stand international law's rhetorical style and self-image.11
Some arguments of this type have traced the- relationship between
international law's three traditional doctrinal areas: sources, substance,
and process. In traditional scholarship, sources doctrines purport to
explain the origins and authority of international law. Substance doc-
trines claim to provide substantive rules about international state
conduct. And process doctrines claim to provide a procedural mech-
anism within which states can resolve international legal issues through
the application of sources and substance, frequently in the context of
international institutions. Public international law is thus conceived
as a coherent body of rules that can resolve conflicts.
This coherent, logically complete system is, however, illusory. In
practice, international law pursues an unachievable resolution of the
dichotomy between sovereign will and world order. To provide closure,
international law must find some moment of origin and authority that
it cannot offer.

Sources refers us to the states constituted by process and grounded


in the violence defined and limited by substance. Process refers
us to its origins in sources and its determination in substance.
Substance refers us to the boundaries of process, its origins in
sources and its resolution in an institutional system of application
and interpretation. Thus, the variety of references among these
discursive areas always shrewdly locates the moment of authority
and application in practice elsewhere-perhaps behind us in pro-
cess or before us in the institutions of dispute resolution. 102

International law's projection of coherence is "sustained by a continual


10 3
reference elsewhere for authority or decisiveness.'
This schematic movement between sources, substance, and process
structures international legal argument. All argument in international
law must make some reference to an external doctrinal basis for its
authority. Arguments that rely on internal, normative authority are
unable to reconcile the dichotomy between sovereign freedom and
world order. Arguments that fail to make any reference to authority
at all can no longer purport to be law.

99. KENNEDY, INTERNATIONAL LEGAL STRUCTURES, supra note 41, at 503.


100. Id. at 496.
101. See id. at 498.
102. Id. at 506.
103. Id.
Harvard InternationalLaw Journal / Vol. 32

A second type of structural inquiry has sought to trace historically


the recurrence of a finite set of dichotomies in international legal
argument. Some have sought to show that the history of international
legal discourse can be understood as a static interaction between these
dichotomies. According to structural theorists, international legal ar-
guments have over the past several centuries defined themselves in
terms of oppositions. International legal theories, for example, fall on
either side of the following oppositions: descending/ascending, 01 4 nor-
mative/concrete, 10 5 utopian/apologist,10 6 communitarian/autono-
mous, 10 7 objective/subjective,108 or naturalist/positivist.109 Through-
out its history the discipline has appealed to arguments coming from
one side of these oppositions to justify international law.
Arguments based on the first terms of these oppositions appeal to
a normative hierarchy to justify international law. International law is
binding on staies because international law reflects some conception
of justice, morality, natural law, or human dignity. To apply inter-
national law to actual state behavior, jurists must deduce concrete
decisions from the normative superstructure. By contrast, ascending
arguments trace international law's status as law to actual state will
or behavior. From these subjective positivist origins, the ascending
pattern of argument attempts inductively to construct a normative
order reflecting actual reality.
Structural analyses of international law have not argued that these
patterns of justification are coherent in themselves, 10 but rather that
they represent the only two types of argument possible under the
liberal conception of international law. "The two patterns-or sets of
arguments-are both exhaustive and mutually exclusive. . .. Either
the normative code is superior to the state or the state is superior to
the code. A middle position seems excluded." '' Structural theorists
have suggested that the dichotomies are inherent in liberal interna-
tional legal discourse, forming its "deep-structure."1 2 International
law is structured by its need to justify through these arguments its
privileged status as binding law. Because of their perpetual recurrence,

104. See KOSKENNIEMI, supra note 3, at 40-42, 140-43, 449-57.


105. See id. at 1-8.
106. See id. at 1-51.
107. See id. at 422-31.
108. See id. at 1-51, 458-501.
109. See id. at 52-191.
110. From a post-structuralist perspective, these distinctions, like other distinctions within
liberal legalism, are not thought to be natural or logically separable. See KosKENNIEMI, supra
note 3, at 41, n. 141.
111. Id. at 40-41.
112. See Kennedy, Critical Theory, supra note 45, at 248-49.
1991 / Critical Legal Studies

these conceptual oppositions define what constitutes international legal


argument and distinguish it from other types of discourse. 113
In sum, traditional international legal argument must be understood
as a recurring self-referential search for origins, authority, and coher-
ence. At the same time, it is an historical effort to avoid repeating
the dichotomies produced by liberalism's international social theory.
These two constraints determine the structure of ordinary international
legal argument.

C. The Indeterminacy of InternationalLegalism

1. Determinacy Under the Rule of Law


The third claim of critical jurisprudence in international law is that
traditional international legal discourse is indeterminate. Indetermi-
nacy is the critical or negative conclusion derived from structural
analysis. The principal arguments about the indeterminacy of inter-
national law rest on the indeterminacy of abstraction and the indeter-
minacy of concrete application. Both theses of indeterminacy assert
the impossibility of liberal legality based on the rule of law.
Liberalism conceives of the rule of law as a process that relates
neutral principles to concrete occurrences. Admittedly, within liberal
jurisprudential circles disagreement continues about what adjudication 114
under the rule of law really looks like, particularly in hard cases.
Yet, as a general matter most traditional academics would agree that
liberal legality requires legal decisionmakers to resolve concrete issues
by applying the theory of the law that they have before them. To do
so, jurists must read the relevant legal texts to find the principles
imbedded within the law. They must construct some theory that seems

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.

2. The Indeterminacy of Theorizing: Fundamental Contradictions


New Stream scholars have denied the possibility of determinate
theorizing. Their basic claim is that the abstractions of liberalism are
contradictory. As one moves to higher levels of abstraction in search
of a controlling principle, liberalism constantly offers inconsistent
theories about the nature of international law. From any factual or
doctrinal starring point, at least two higher-level theories attempt to
justify public international law. At the very highest level of abstrac-
tion-the realm that purports to explain the origins and authority of
international law-competing and conflicting principles operate
within the law. This point recalls the tensions between naturalism/
positivism, world order/sovereign will, and normative values/concrete
reality. The indeterminacy thesis states that one side of the dichotomies
alone cannot survive as an adequate explanation of international law
theory, and that the dichotomies are irreconcilable, un-resolvable, or
'1 1 7
in "fundamental contradiction.
It is impossible to find a coherent theory that can justify the rule
of law in international life. An international legal scholarship that
pins itself entirely to one side of the dichotomies cannot convince us
of its legitimacy. A theory of international law that positions natural-
ism over positivism, world order over sovereignty, or normativity over

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

concreteness, must assume the existence of some natural morality


independent from sovereign behavior, will, or interest. Without ref-
erence to actual sovereign practice, such scholarship would be unable
to legitimate its norms. Because scholarship of this sort advances norms
without regard to the real world, it would be utopian. 118 Conversely,
if a theory of international law positioned positivism over naturalism,
then it would necessarily lack a reflective image of sovereign behavior.
If states were paramount, international law could never impose be-
havioral rules against their will. Because of its inability to harness
sovereign conduct, such a theory would seem apologist.' 1 9
This explanation sheds light on the interminable quality of the
classical debate between positivism and naturalism. Because each the-
ory could be used to criticize the other as apologist or utopian, each
would seem powerful. Because neither theory could be both normative
and concrete, neither could sustain its legitimacy.
To escape apology or utopia, modern international legal theorists
have attempted to occupy the middle ground, pursuing schizophrenic
efforts to encompass both sides of the dichotomies. Liberal adjudication
enforces subjective value through an appeal to objective principles.
Sovereignty is based on the positivist primacy of concrete state interests
and the normative content of a world based on sovereignty. Interna-
tional legal doctrines support state interests and world order. In short,
modern doctrine "uses a mixture of positivistic and naturalistic, con-
sensualistic and non-consensualistic, teleological, practical, political,
logical, and factual arguments in happy confusion, unaware of its
' 20
internal contradiction."'
With international law positioned between the two poles, each pole
can claim its primacy as correct. But as a consequence, neither can
actually resolve problems arising under international law. This con-
clusion represents the negative side of the structure of international
legal argument. International law employs a pattern of self-referential
arguments that continually shift the source of its authority and origin
in an effort to navigate between public order and sovereign will.
Admittedly, this view depends on the insolubility of international
law's reoccurring dichotomies. Perhaps some higher-level abstraction
or lower-level application could reconcile these dilemmas. After all,
to claim the fundamentality of a contradiction asserts a negative
without the possibility of proving it. To answer this challenge, New
Stream scholars have argued that international legal doctrines have
inherited liberalism's contradictions. 2 ' "The meaning of contradiction

118. See KOSKENNIEMI, supra note 3, at 5.


119. See id.
120. Id. at 47.
121. See id. at 24.
HarvardInternationalLaw Journal / Vol. 32

at the level of abstraction is that there is no metasystem that would,


if only we could find it, key us into one mode or the other as
122
circumstances 'required.'

Reconciliatory doctrines will reveal themselves as either incoh-


erent or making a silent preference [to one side of the dichoto-
mies.] In both cases they remain vulnerable to criticisms from an
alternative perspective. But this perspective, once forced to defend
itself, will fare no better. Consequently, doctrine is forced to
maintain itself in constant movement from emphasizing concreteness to
emphasizing normativity and vice-versa without being able to estab-
lish itself permanently in either position. 123

Thus, "indeterminacy follows as a structural property of the interna-


tional legal language itself. ' 124 Given the presence of competing the-
ories at all levels of abstraction, the selection of one theory over the
others involves political choice. Legal reasoning as it relates to theo-
rizing is correctly described as the process of choosing between theo-
ries, rather than a process of logical determinacy.

3. The Indeterminacy of Application: The Reversibility of


International Legal Argument
The indeterminacy of public international law is also illustrated by
the drive for the concrete application of doctrines. Understood in this
manner, the indeterminacy thesis reveals itself as a radical claim about
the reversibility of international legal argument. 2 5 By reversibility,
New Stream scholars mean that any international legal doctrine can
justify multiple and competing outcomes in any legal debate.
To understand why international legal doctrines are reversible, one
must understand the process through which doctrines are given con-
tent. As an epistemological matter, within a conceptual scheme like
the dichotomies of international law, the processes of naming and
deciding are identical. When one decides what a thing is, one is also
naming it, and vice-versa. Yet, a doctrine's "meaning" is recognized
only when its position in relation to some other interpretation has
been established. 126 In labelling state behavior "a violation of inter-
national law," one is deciding that the behavior is a violation of another
sovereign's liberty. Labelling it the opposite, however, means that it

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

is an extension of the acting state's liberty. Similarly, the content and


meaning of international legal doctrines reveal themselves only in
relationship to particular concrete occurrences. Just as any theory can
be apologist or utopian depending on one's interpretive position,
doctrines can support the concrete visions of either side of the
dichotomies.
The principle of self-determination can be used to illustrate the
reversibility of doctrinal meaning. Self-determination simultaneously
advances each side of the traditional conceptual oppositions. It is a
positivist doctrine contracted into by states and a naturalist doctrine
about the primacy of sovereignty; a concrete principle about sover-
eignty and a normative principle about equality; a sovereign claim of
autonomy and a world order claim about liberty; an apology for the
127
reality of domestic jurisdiction and a utopian vision of justice.
For the rule of law to determine the result of a dispute, legal
doctrines must justify one outcome above others. But when legal
analysts try to descend from a conceptual abstraction, they find that
for each pro argument there is a con argument about why one result
is desirable instead of another. Each result is equally valid as a logical
matter. So, it becomes impossible to deduce implications from con- 128
cepts and consequently, abstractions cannot "compel" any decision.
The indeterminacy of application provides a new interpretation of the
failure of modern conceptual pragmatism. Hoping to avoid theory,
pragmatists sought to apply doctrine to concrete facts. The reversi-
bility of modern conceptual categories made doctrinal application
indeterminate.
Together, the indeterminacy theses of CLS deny the possibility of
abstraction and application in international law. Doctrines are merely
formal concepts that can be deployed to support any material theory
of international law and any material outcome. Therefore, "interna-
tional law is singularly useless as a means for justifying or criticizing
'129
international behavior.

D. InternationalLaw's Self-Validation

1. International Law's Authority


CLS's analysis of international law has concluded that international
law is ethically incoherent, intellectually constrained, and logically
indeterminate. Nevertheless, quite importantly, international law
seems to have some experiential authority. Its authority operates on

127. Seeid.at 453-55.


128. Kennedy, Form and Substance in Private Law Adjudication, supra note 51, at 1774-76.
129. KoSKENNIENII, supra note 3, at 48.
HarvardInternationalLaw Journal / Vol. 32

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

the mystifying function of ideology discussed earlier with an emphasis


on the manner in which law's ideological underpinnings are self-
validating.

2. The Theory of Legitimacy


One way to understand why states may feel they can and must obey
international law requires the recognition that states acknowledge
international law's legitimacy. The concept of legitimacy has become
associated with twentieth-century European social thought. 135 A social
theory of obligation based on legitimacy "posits that, in a community
organized around rules, compliance is secured-to whatever degree it
is-at least in part by perception of a rule as legitimate by those to
whom it is addressed." 1 36 In this light legitimacy theory expresses the
simple conclusion that in a world without external coercion, compli-
ance is secured-to whatever degree it is-by the internal coercion of
sovereign psychology. 137 Some additional theory is required to explain
the process through which states come to feel psychologically pressured
into behaving in a particular way because of international law.
Traditional scholars explain international law's legitimacy through
appeals to liberal ethics, politics, and adjudication. Unfortunately,
very little that is not controversial can be said along these lines to
explain the historical origins of legitimacy. To some, a legal rule is
regarded as legitimate by those to whom it is addressed when the rule
is perceived to have been created in accordance with "right process."1 38
To others, legitimacy in the international system stems from a rule's
perceived harmony with the morality of natural law.139 Still others
have suggested that legitimate rules are those that, provide the. best
available mechanism for structuring international social life. 4 ° Each
135. See MAX WEBER, ECONOMY AND SOCIETY 31-38 (G. Roth & C. Wittich eds. 1968)
(distinguishing between perceived legitimacy and the qualities of legitimacy in an order itself);
JURGEN HABERMAS, COMMUNICATION AND THE EVOLUTION OF SOCIETY 178 (T. McCarthy
trans. 1979) (describing legitimacy as a decision of subjective value). In New Stream international
legal scholarship see Onuf, Law-Making, supra note 4, at 31-66. For a critique of legitimacy
theory in international law see Hyde, The Concept of Legitimacy in the Sociology of Law, 71 WIs.
L. REV. 379 (1983).
136. Franck, supra note 132, at 706.
137. A common metaphor advanced to explain legitimacy is that rules themselves pressure
states towards compliance. See Franck, supra note 132, at 712. The metaphor seems inadequate.
Although it conveys the correct sense of the sovereign's obligation to an intangible abstraction,
like a rule, it misplaces the origin of the pressure. It is at least as true that the sovereign's
perception of legitimacy pressures the sovereign to obey international law's edicts.
138. Id. at 706.
139. See generally DWORKIN, LAW'S EMPIRE (1986) (posing the connection between morality
and law).
140. This definition privileges consequential or material justice above other ethical theories.
Scholars from non-liberal points on the political spectrum seem to accept a material definition
of legitimacy. See, e.g., FALK, supra note 27, (for a communirarian view of legitimacy); Gabel,
supra note 47 (for a radical view of legitimacy).
HarvardInternationalLaw Journal / Vol. 32

of these theories about the origin and authority of legitimacy reflect a


positivist or naturalist first premise. Debates about the alternative
characteristics of legitimacy-their normative and political origins-
are destined to the same indeterminacy as other international legal
debates. 141

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

141. See MACINTYRE, supra note 61, ch. 17, 1.


142. See generally CLAUDE Ltvi-STRAuss, STRUCTURAL ANTHROPOLOGY (C. Jacobson & B.
Schoept trans. 1968).
143. See Kennedy, Critical Theory, supra note 45, at 256.
144. See Onuf, Law-Making, upra note 4, at 57-66.
145. The impression of law's authority may depend on symbolic validation. See FRANCK,
supra note 132, at 725-35.
1991 / Critical Legal Studies

and institutions in many ways. Rules may be validated through ritual.


Institutions may be validated through architecture, transferred au-
thority (like famous leaders) or other cultural attention. Alternatively,
rules and institutions may become authoritative because of their ped-
146
igrees, their "historical origins" and cultural "deep-rootedness."'
International law's weaknesses are in some sense irrelevant; self-vali-
dation sanctions the international-law myth.

4. Ideological Mystification and Self-Validation


Ideological mystification provides another example of international
law's self-validation. Liberal ideology makes political choice look either
like unquestionable "natural" law or logical compulsion. In this sense
it mystifies and obfuscates the international order it has established.
Both the anthropological and ideological theories make sense of inter-
national law's authority by showing the manner in which sovereigns
self-validate international law. Liberal ideology provides sovereigns
with a self-validating escape from the need to reason to their acceptance
of international law's authority. Sovereigns embrace the purported
naturalness and coherence of an ethical theory that is sovereign-centric.
In turn, this allows them to believe in the neutrality of the liberal
theory of politics and the liberal theory of adjudication. Sovereigns
thus come to accept the authority of international law and the rule of
law as a neutral, determinant, and coherent system, when, in fact, it
is none of these things.

E. Summary of CLS Analysis

1. The Major Conclusions


Some conclusions are common to the four distinctive areas of CLS
international-legal analysis I have presented. Consider the major ar-
guments found within the New Stream literature. New Stream scholars
have criticized the logic of the liberal vision of international affairs.
Liberalism's commitments to a sovereign-centric world and the prin-
ciple of subjective value have been said to contradict its own political
theory (based on liberty) and adjudicatory theory (based on the rule
of law). The New Stream literature has also attacked international
law's indeterminacy, the fact that it is capable of neither abstraction
nor application. International law cannot avoid the fundamental con-
tradiction within its theoretical origins; nor can its entirely reversible
doctrines resolve international conflict.

146. Id. at 726.


HarvardInternationalLaw journal / Vol. 32

A common theme emerges from these insights. Both focus on the


normative and political choices in international legal reasoning. The
selection of values, ideologies, arguments, and applications provide
points of political choice from which no neutral and objective decision
can emerge. These political decisions permeate the legal texts of
international organization-its ideology, rules, and doctrine. Under
the assumptions of liberalism, international law must collapse into
political choice, for no neutral system can exist in a sovereign-centric
world of subjective value.
The insights of CLS analysis have sometimes been interpreted to
mean that international legal decision-making is wholly open. Indeed,
the language used by some indeterminacy theorists might lead one to
believe that a coherent CLS theory of international law would claim
precisely that sort of complete indeterminacy. 147 Yet critical scholars
have themselves revealed international law's constraining and struc-
turing elements. They have uncovered the ideological bias of liberalism
as it operates in international law. However, the structure of inter-
national law does not make international legal discourse determinate.
Instead, it acts like a set of bookends, defining the scope of indeter-
minacy. Consequently, international legal discourse has a structured
incoherence or partial determinacy. Although its structure excludes
certain possibilities from the realm of international law, its legal
argument is still indeterminate.
The final conclusion advanced by critical jurisprudence suggests
that international law derives its authority, to whatever degree it can,
from self-validation. The processes of anthropological legitimation and
ideological mystification validate law without a rational basis, psycho-
logically pressuring states toward compliance. The ideological confu-
sion of the "is" with the "ought" validates the normative assumptions
of international law. Because international law presents itself as nat-
ural, neutral, and objective, these claims obscure and mystify inter-
national legal analysis. Each claim hides the deep incoherence, nor-
mative basis, and indeterminacy of international law. Yet it is precisely
this incoherence, normativism and indeterminacy which contemporary
critical jurisprudence sees as forming the basis for any workable theory
of international law.

2. International Law as Subject and Theory


Having examined the four primary conclusions of the New Stream
scholars, it is now possible to consider why both traditional and critical
147. See, eg., Karl Kare, The Law School Curriculum in the 1980'i, 32 J. LEG. EDuc. 336,
340 (1982) ("From the standpoint of logic . . . there simply is no necessity or determinacy to
legal reasoning, no inner compulsion to its methods. Legal reasoning is a texture of openness,
indeterminacy, and contradiction.").
1991 / CriticalLegal Studies

scholars seem incapable of debating international law as a subject or


a theory. Unless the two camps take a great deal of care to define their
starting point, they find themselves talking about quite different
things. To begin with, each side imagines its subject in ways incom-
patible with the others vision of international law. The traditionalist
sees international law as a regime of rules that actually governs state
behavior. By comparison, the radical sees international law as only
purporting to govern state behavior. Both agree that international
law's commitment to the rule of law distinguishes it from other modes
of international analysis. Yet each understands this agreement differ-
ently. The traditional scholar thinks the actual existence of the rule
of law makes international law distinctive, while the radical asserts
that it is international law's hopeless and idealist commitment to the
rule of law that sets it apart from non-legal analysis. For the CLS
scholar, international law is merely a particular type of discourse about
international social life. It is a method of conversation that states have
chosen to follow. To some it is a conversation entirely without
content. 148
The disagreement about the subject of international law is so pro-
found that traditional and critical images of international legal theory
itself are themselves incompatible. To the traditional scholar, full and
adequate theories of international law must explain law's origin in
terms of some compelling rationality. As we have already seen, New
Stream analysts criticize traditional scholarship for continuing a line
of projects doomed to be ethically incoherent, intellectually con-
strained, and self-validating. By contrast, they believe international
legal theories need only an adequate understanding of the nature of
international legal discourse-its moves, methods, contradictions, and
patterns. The methodological assumptions of the critical approach
preclude a determinate or historical understanding of law's origin and
authority.
Readers with a traditional conception of international legal theory
may still be looking for explanations about international law that can
make law survive as a mechanism for structuring international order.
Seen from the traditional perspective, CLS analysis up to this point
ignores the fundamental questions of international life; failing, thus
far, to present a theory about the ideal condition of law in world
affairs. Without a positive vision, even of a vague utopian kind, the
New Stream may, as traditionalists might claim, be incapable of
reinvigorating the discipline of international law. In the final section,

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.

III. THE NEW STREAM, INTERNATIONAL DISCOURSE'S


IDEAL CONDITION, AND MODERNISM
In an effort to develop a full and coherent theory of the CLS
conception of international law, I shall suggest that the New Stream's
ideal vision is incompatible with the movement's own premises. More-
over, I shall suggest why some modern critical international legal
scholars have been unable or unwilling to present a fully articulated
vision of international social life. Initially, I shall continue the histo-
riography of modernism in an effort to fit the New Stream into the
modern era. I shall conclude by reflecting on the relationship between
CLS's modernist premises and its capacity to develop an affirmative
vision of international law.

A. The Move to PoliticalDiscourse


To date, the most disappointing aspect of the New Stream literature
has been its failure to commit to an affirmative image of international
law's role in the world order. 14 9 Constructing a positive vision of
international legal discourse must involve an imaginative examination
of the ethical foundations of CLS in international law. Significantly,
at the level of their personal normative leanings, one finds a common
trait in the moral positions of critical international legal scholarship.
New Stream scholars consider themselves internationalists. 150 They
desire to break down national and cultural barriers that limit our sense
of obligation to other societies and other human beings. The CLS
vision of the ideal condition of international legal discourse follows
from this ethical commitment, and New Stream scholars believe that

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

international discourse should focus on poverty, totalitarianism, ra-


cism, sexism, illness, hunger, and income inequality. 15 1 They see
international discourse as a tool of international development and an
instrument of political empowerment. 152 Unlike the liberal approach
to many of the same goals, critical international legal scholarship has
emphasized the need to turn to direct consideration of material jus-
tice. 153 New Stream scholars seek to widen international legal discourse
to include a variety of substantive commitments that are presently
excluded. Although it seems difficult to know whether a commitment
to material justice inspires or responds to CLS analysis of international
law, the relationship between critical methodology and radical ethics
permeates much of the new literature.
The correlation between the movement's critical and radical stands
seems particularly anomalous since its internationalist conception of
justice suffers from the same shortcomings as earlier utopian visions
of international law. Were CLS scholars to appeal to their own sub-
jective normative positions as a theory of international law, interna-
tionalism would turn into naturalism. Like their predecessors, New
Stream scholars would find no adequate explanation of their ideal
international order. To "avoid the accusation that he is merely [a
naturalist] in disguise . . . the critical lawyer must accept the reality
of conflict." 154 Recognizing the reality of conflict requires critical
theorists to understand that discourse about the world order necessarily
involves political and normative questions, about which they have no
55
compelling arguments.
To accommodate the reality of conflict, the New Stream has con-
ceived of international discourse as a process through which normative
decisions can be made. International legal discussion constitutes noth-
ing more than "a practice of attempting to reach the most acceptable
solution, a conversation about what to do, here and now. ' 156 The
legitimacy of the CLS utopian vision of international law comes from
a widened debate about international life, moving beyond mere ar-
guments about principles and doctrines to include consideration of the

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

full range of normative visions about a just international order. Inter-


national solutions emerge "through an open (uncoerced) discussion of
57
the alternative material justifications.'1

The legitimacy of critical solutions does not lie in the intrinsic


character of the solution but in the openness of the process of
conversation and evaluation through which it has been chosen and
in the way it accepts the possibility or revision-in the authen-
ticity of the participants' will to agree.15

The New Stream desires to save international legal discourse because


as a literature about norms such discourse becomes a means to an
end.' 59 Law survives as a prominent conversation in international
relations, and the international scholar and practitioner endure because
of their place as participants in that conversation. Although no analysis
distinct from economic, political, and moral argument can be consid-
ered international legal reasoning, international lawyers can distinguish
themselves from economists, politicians, and philosophers because of
their roles as advocates, diplomats, judges, and scholars. Their routine
participation in international affairs allows international lawyers to
160
contribute to international justice.
Importantly, the move to political discourse cannot demarginalize
international law. The New Stream's attempt to save international
law, and along with it, scholars and practitioners, contradicts the basic
premises of CLS methodology. The New Stream's stated vision pro-
vides no basis for judgment. Assuming that international discourse
were broadened to include overtly political references to material
justice, critical reflection offers no method of judging their relative
worth within the reality of conflict. On neither an individual nor a
social level can the New Stream's stated vision give the world a basis
for accepting one morality over another. In short, its epistemology
does not allow it.

B. Modern Epistemology

1. Modernism and Objectivity


The discipline of international law in the modern era has been
dominated by an intellectual drive to escape the need to find an

157. Id. at 487.


158. Id.
159. CARTY, supra note 3 at 120-31; Sathirathai, supra note 154 at 416.
160. For a discussion of the capacity of routinized social agents to alter their contextual
reality through imagination and normative thoughts, see UNGER, SOCIAL THEORY: ITS SITUA-
TION AND ITS TASK (1987); PASSION (1986); LAW IN MODERN SOCIETY (1976).
1991 / Critical Legal Studies

objective basis from which to explain the origin and authority of


international law. Indeed, the realization that objectivity is impossible
is the basic insight of modernism. Pre-modernist thought centered on
two types of objectivity. Something was objective in the sense that it
was thought to have a presence as a fixed truth in the external world.
Alternatively, objectivity referred -to an unbiased process for the pro-
duction of knowledge, such as that of strict and unreflective empiri-
cism. Modernists deny objectivity at either level and they claim that
truth is subjective and relative. Even if objective truth actually exists,
we cannot come to know it as such because the subjective creation of
knowledge cannot remain faithful to whatever objectivity may exist.
In sum, the modern insight is an epistemological premise about
context.
As explained in the first section, early international-legal modernists
sought to demonstrate the inadequacies of the classical theories of
international law. They also reveled in the failures of the conceptual
pragmatism of their contemporaries, which they viewed as neoclassical.
These criticisms were motivated by their rejection of objectivism.
From the modernists' perspective, neither positivists nor naturalists
could find an objective starting point that would have allowed them
to develop an adequate theory of international law. Natural interna-
tional law theories posited the existence of a normative morality, but
the existence or content of that morality eluded them. Positivist
international law theories were premised on factual behavior and will,
but the justification and content of that system also remained unk-
nowable. Neither foundation could prove its claim to objective truth.
In their critical denial of objectivity, the international legal scholars
of the 1950s, 1960s, and 1970s fit within the modernist tradition,
although they resisted the full force of modernist thought. In so doing
they betrayed the fundamental insight of their era. Early modernist
scholars sought to expose the subjective departures of various compet-
ing theories of international law, without accepting that their own
theories were also the product of a subjective epistemology. 161 In their
criticisms and their conceptual theories, these modernists reintroduced
objectivity. International law's privileged status as law was reaffirmed
by alternating references to concrete state behavior or normative mo-
rality. Moreover, the early modernist scholars presented themselves as
neutral observers of their subject narrating the last objective descrip-
tion of their discipline. In essence, they secretly affirmed the possibility
of objective truth and the objective production of knowledge.
By contrast to the early modernists, New Stream scholars have
accepted the radical insights of modernism. They have pushed those

161. SeeCARTY, supra note 3, at 128-29.


HarvardInternationalLaw Journal / Vol. 32

insights of modernism to their logical conclusion in what is now called


post-modernism. 62 They have understood that "there is just no ulti-
mate ground for the testing of propositions which. we feel could be
plausible candidates for 'truth' that could be fitted within any of the
suggested models of knowledge."' 163 As we have already seen, the
implications of contemporary jurisprudence necessitate the rejection
of the early modernist quest to find some ultimate justification for
believing in the rule of international law. "[We] cannot see the inter-
national legal world as it somehow actually exists, simply because that
1
world and our way of looking at it are one and the same thing. '6
Moreover, critical international legal scholarship has accepted the
subjectivity of its own work by stressing at each turn the degree to
which knowledge and analysis depend upon context. The New Stream
has accepted the inaccessibility of epistemological objectivity. In a
sense early modernists argued that the international legal theories of
their adversaries were subjective, which is to say political and biased,
while the New Stream has argued that all international legal analyses,
including its own, are necessarily so.

2. Nihilism and Critical Knowledge


The New Stream's complete denial of any kind of objectivity creates
a difficult epistemological challenge. Critical international legal theory
appears nihilistic. That is to say, radical skepticism about reason,
knowledge, morality, and justice seem the necessary consequences of
critical reflection. Nihilism condemns international life to destructive
anarchy, although it is worth noting at the outset that even if nihilism
is a necessary companion of CLS analysis, that does not make its
modernist understanding of international law invalid. 16 Nonetheless,
it seems fair to argue that our experiential existence confirms the
possibility of some type of inter-subjective knowledge. At a minimum,
humanity seems capable of deductive reasoning. Furthermore, if the
CLS vision of international law were nihilistic, the critical effort would
seem like nothing more than cantankerous radicalism, the intellec-

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

tually compelling potential of which is fundamentally impaired by its


self-limiting theoretical assumptions.
It is important, therefore, to prove that modernism has not painted
CLS into a corner requiring the New Stream to accept nihilism and
snub reason. To respond to the challenge, critical jurisprudence has
advanced an epistemology capable of producing a type- of critical
knowledge. 166 Critical epistemology creates a distinction between con-
textual reason and objective rationality. Where complete nihilism
denies the possibility of reason, critical epistemology supports it. CLS
analyses of international law purport to be rationalist projects. 67 The
scholars in the movement share a conviction that "knowledge 168itself
[can) be a force for progress, moral autonomy, and 'the good."'
The acceptance of reason creates a possibility of critical reflection
distinct from objectivism and nihilism. Reason allows the New Stream
to use rational argument as a critical hierarchy capable of moving from
given premises to logical conclusions. Admittedly, the New Stream's
commitment to reason affirms the transcendent quality of rationality,
and this confidence seems like a sort of first principle. Consequently,
at the highest level of abstraction, critical knowledge may collapse
into objectivism. 169
The New Stream believes it saves itself from that fate by empha-
sizing the seamless web connecting human existence and human
knowledge of its condition. Knowledge, like all aspects of human
belief, originates in cultural surroundings. Critical knowledge remains

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

a product of the social process of creating meaning through historical


myth, symbols, self-validation, and the like. 170 The self-referential
and self-constituting nature of critical reflection allows it to avoid
objectivism. Critical epistemology explores logical validity within a
cultural context, without claiming some universal truth. The impli-
cations of the structuralist move seem, however, as damaging as the
charge of objectivism. If critical reflection is self-validating, it cannot
maintain coherence. So what must one make of the New Stream's
critique of the liberal conception of international law?
The key to understanding the New Stream's admission of its own
incoherence lies in realizing that a critical understanding represents
the only knowledge for which one can hope. The logical limitations
of critical knowledge do not suggest its adequacy. Such a conclusion
would be "premised on the belief that there is somewhere a more
determinate, and in that sense more objective way of grasping the
issues" of international relations. 171 The entire weight of CLS analysis
international legal analysis argues against that premise, since modern-
ism has banished any hope for true objectivity. What remains is a
choice between limited critical knowledge, unjustified objectivity, and
anarchic nihilism. Admittedly, critical epistemology cannot provide
an alternative to adjudication that offers half the virtues the rule of
law attributes to itself. This realization merely reminds us that inter-
national legal scholars must lower their expectations regarding the
nature of law. 172
Critical reflection-deconstructive analysis of structure, patterns,
themes, and contradictions-produces important understanding about
the intellectual structure of its subject. The conclusions presented in
this Article illustrate the type of knowledge that deconstructive anal-
ysis can produce. In this sense criticism is inherently constructive.
The possibility of critical knowledge has provided contemporary in-
ternational legal scholars with a vision of their role in the fight for a
more just international order. 173 The mission of the New Stream,
suggested by its epistemology, requires it to "reconstruct conflict
situations in accordance with basic principles of possible understand-
ing, a theory of knowledge based on the development of argument,
rather than the search for objectivity or experience as such. ' 174 The
power and vitality of CLS's deconstructive analysis and its capacity to

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

produce critical knowledge position the international lawyer as a for-


midable constituent in international life. Like a sentinel, the New
Stream guards international law from those who wish to reintroduce
pseudo-objectivity. It exposes the hidden ideological structure and
political choices underlying international law.
Despite the virtues of critical knowledge, one must also consider
its limitations. That the product of deconstructive analysis can save
the New Stream from complete nihilism does not imply that the
movement can develop affirmative visions to complement its critical
conclusions. Critical knowledge cannot lead to some acceptable recon-
struction. Because deconstructive analysis demonstrates that all intel-
lectual abstractions are necessarily built on an ideology that incorpo-
rates political premises, no affirmative vision of international social
life can justify itself. Any reconstructed vision of international relations
must begin with a first premise about the way the world really is or
ought to be. It must accept some theory about justice, find some
contextual truth, or accept some non-critical epistemology. Even the
move to open political discourse must be accompanied by some first
principle about decision-making in the normative context. As critical
insight has already demonstrated, rational argument cannot achieve
normative agreement.
From the modernist perspective, any of these positions lead to
objectivism. The point is not that CLS analysis of international law
delegitimizes international legal discourse. On the contrary, as the
New Stream suggests, CLS's insights only discredit "arbitrarily re-
stricting the argumentative possibilities" in international legal dis-
course. 17 The relevant point is that modernist thought paralyzes
deconstructionists, removing their ability to exercise judgment. At
the moment the New Stream adopts some affirmative vision of inter-
national life, it will have abandoned critical epistemology in favor of
objectivism, thereby contradicting its own modern premises. The
critical side of CLS in international law "tends to turn against whatever
constructive vision [it] may have in mind." 176 Critical knowledge
seems to offer little more than the opportunity to exist as a convincing
nay-sayer. There is, therefore, a strange duality to the New Stream's
epistemology. It can produce a reasoned critique of international uto-
pian theories, but not offer its own alternatives.
Some New Stream scholars, as modernist purists, have accepted the
limitations of critical epistemology and have avoided utopian specu-

175. KOSKENNIEMI, supra note 3, at 489.


176. Id. at 484.
HarvardInternationalLaw Journal / Vol. 32

lation altogether. 177 It seems unfair to conclude, as traditionalists have


done, that these scholars have shrunk from the fundamental challenge
of international legal scholarship. Rather, their resistance to utopian-
ism should be understood as a product of their methodology. Indeed,
from the perspective of mature modernism, "it was precisely the
determination to 'get it right' which led" early modernists astray. 178

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

182. See KOSKENNIEMI, supra note 3, at 479.


183. See id. at 498-501. See also Peter Gabel, Intention and Structure in Contractual Conditions:
Outline of a Method for Critical Legal Theory, 61 MINN. L. REV. 601 (1977) (offering an
introduction to existential philosophy in legal analysis). See generally JEAN-PAUL SARTRE, Ex-
ISTENTIALISM (1947).
184. Despite their commitment to existential or contextual knowledge, the reconstructionists
within the New Stream have tended to provide entirely non-contextual accounts of what a
desirable world order would look like. A just world order, they argue, "would not rely on
political, legal, or economic coercion." Sathirathai, supra note 152, at 416. Instead, it would
avoid individual domination and alienation. But these vague positions make it difficult to
comment meaningfully on specific international social practices.
185. KoSKENNIEMI, supra note 3, at 462.
HarvardInternationalLaw Journal / Vol. 32

international law. Contemporary liberalism, revised in light of modern


criticism, could be understood as nothing more than a limited claim
about how some principles, having lent themselves to the community
of political discourse, emerge as inter-subjective contextual truths,
without a claim to ultimate objectivity. Consequently, the New Stream
would no longer be able to distinguish between experiential truth and
classical truth.
To decide among competing experientially developed theories, some
additional arbiter is required, but the New Stream has not found a
referent principle. It seems incapable of explaining why one substan-
tive conception of international social life should be preferred to
another.'18 6 Because the critical conception of international law incor-
porates the insights of modernism, it cannot claim to have discovered
some transcendent truth or universal knowledge-creating process.
Thus, even if experiential knowledge existed, it would fall victim to
the same paralysis of judgment inherent in critical epistemology. In
this view the New Stream has failed to develop an epistemological
basis consistent with modern critical thought and capable of overcom-
ing the affirmative paralysis of critical knowledge.

C. Beyond Modernism in InternationalLaw


Structurally, only two mutually exclusive visions of international
social life seem possible. International legal theories must either suc-
cumb to objectivism or fall into criticism. The former has the virtue
of sustaining the connection between reason and morality. An objec-
tivist ethic, be it the rule of international law or radical internation-
alism, can be seen as providing the basis for a just world order. But
objectivism has the failing of being unable to justify its own first
principles, which makes it incoherent, constrained, indeterminate,
and self-validating. In contrast to objectivism, the merits of criticism
are the latter's relative logical purity and its capacity to develop critical
knowledge. Unfortunately, criticism degenerates into cynicism. It
shackles judgment, necessarily separating its critical conception of
international life from an affirmative vision about world order. Criti-
cism cannot actively, programmatically, or normatively participate in
the structuring of the international order. It cannot bridge the gap
between theory and action.
The limitations of the New Stream approach do not compel a
rejection of the critical method or its conclusions. Rather, they suggest
that critical international legal literature must settle for more modest
conclusions about the strengths of its own arguments and its ability

186. Cf. id. at 484.


1991 / Critical Legal Studies

to use criticism as a weapon against international injustice. The New


Stream has demarginalized the discipline of international law by pro-
viding it with a challenging method of intellectual inquiry through
which it can explore its subject. It has not, however, constructed a
theory of international law that allows law or any other substantive
regime to build a more coherent international order.
Ultimately, by following modernism to its logical conclusion, the
New Stream purists-those arguing from within the limits of critical
epistemology-produced what can be understood as the last modernist
text of international law. Of course, the New Stream literature has
not created the last analysis of international law. The next wave of
international legal literature must find a way to overcome what seems
a fundamental tension between objectivism and criticism. From the
modernist perspective, international law cannot transcend its problem-
atic. If international legal discourse stands a chance to live up to the
role created for it in the fight for world justice, we must conceive of
an ethical foundation for international social life beyond modernism.

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.

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