The European Journal of International Law Vol. 26 no. 4
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EJIL Editors’ Choice of Books
2015
At the end of 2014, we invited the EJIL Board members to reflect on the books that had
had a significant impact on them during the year. Their contributions, posted on EJIL:
Talk!, were met with great interest and curiosity. As the end of another year approaches,
we decided once more to invite our Board members to look back on their reading in 2015.
In the following pieces Sarah Nouwen, Christian Tams, Jan Klabbers and Jean d’Aspremont
write about the books they read or re-read this year and which they found inspiring, enjoyable or even ‘must reads’ for their own work or international law scholarship in general.
Sarah Nouwen’s Choice
Sophokles. Antigone, translated by Anne Carson. London: Oberon, 2015. Pp. 54.
£9.99. ISBN: 9781783198108.
Alex de Waal. The Real Politics of the Horn of Africa: Money, War and the Business
of Power. Hoboken: Wiley, 2015. Pp. 220. €21.30. ISBN: 9780745695587.
Edward Thomas. South Sudan: A Slow Liberation. London: Zed Books, 2015. Pp. 336.
£15.82. ISBN: 9781783604074.
Samuel Moyn. Human Rights and the Uses of History. London: Verso Books, 2014.
Pp. 160. £10.39. ISBN: 9781781682630.
Andreï Makine. L’amour humain. Paris: Seuil, 2006. Pp. 294. €18.30. ISBN:
9782020884266.
It is actually not that easy to come up with a list of five books that, according to the criteria set by our Book Review Editor, Isabel Feichtner, ‘have had a significant impact on you
that year’ or, more precisely, ‘books not necessarily published in 2015 (and not necessarily law books), but read or re-read that year, and which you found inspiring, enjoyable or
considered “must reads” for your own work or international law scholarship in general’.
As Jean d’Aspremont observed last year,1 we usually read functionally for our work:
a few pages here and there that are relevant to a piece that we happen to be writing.
Seldom do we read a book cover to cover (Jan Klabbers providing a praiseworthy exception2), and if we do, it is often for a book review (which seems disqualified from this list
as it has already been published elsewhere).3 However, even of the few dozens of other
See www.ejiltalk.org/editors-book-choices-jean-daspremont/.
See www.ejiltalk.org/editors-book-choices-by-jan-klabbers/.
3
My only book review this year was of David Bosco, Rough Justice: The International
Criminal Court in a World of Power Politics (2014), available at http://jamesgstewart.com/
the-sort-of-justice-the-icc-can-and-cannot-deliver/.
1
2
EJIL (2015), Vol. 26 No. 4, 1027–1041
doi:10.1093/ejil/chv069
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books that I did read cover to cover this year, few qualify for this list, if we interpret the criteria to mean that even the books that one finds ‘inspiring’ or ‘enjoyable’ should in some
ways relate to one’s work or to international law scholarship in general. While Yotam
Ottolenghi’s Plenty More has been studied page by page and proved hugely inspiring in
the kitchen, the European Journal of International Law may not be the best forum to explain
why. The same goes for the half a dozen books on how to get a baby to sleep through the
night – all of which have been tried and tested; none of which I would recommend.
That brings me to a final introductory caveat: it is difficult to select five books that
I (re)read this year that I would strongly recommend – that is, that I would suggest to
colleagues that they read these five books instead of other books or, indeed, that they
spend their Sundays reading these books instead of going for a run, baking an apple
pie or attending a political rally. The key problem is that I do not read enough, but the
problem is exacerbated by publishers who publish too much. Indeed, it is far easier
to come up with a list of recommendations of five books not to read. However, this
project does not fit so well with the spirit of the holiday season and, in our profession,
might even be a litigation risk (as this journal knows all too well).4
Against this backdrop, here are five books that I read, and in one case re-read, in
2015 and, in fact, do strongly recommend to my colleagues.
So Classic, So New, So Timely: Anne Carson’s Translation of
Sophokles, Antigone (2015)
In a forthcoming book chapter on the crime of aggression, Martti Koskenniemi argues that
classical tragedy provides a better frame for understanding great international crises than
that of good versus evil or ‘just warrior’ versus ‘the aggressor’.5 Indeed, as a way of looking at the world, tragedies have much to offer to anyone engaging in international affairs,
including international lawyers. They show how in a world of limitations people’s idealistic
aspirations may have cruel consequences. Without necessarily leading us to fatalism, tragedies remind us of the importance of context and contingency and inspire a sense of humility as to the human ability to control the outcomes of interventions in complex situations.
For those of us, myself explicitly included, who struggle in our writing with getting to the point, and to a point that is actually relevant, reading Sophocles is a humbling source of inspiration. On page 1, we know what the book is about; just over 40
short pages later, we have lived through some of the most fundamental tensions that
have defined human experience: law versus justice; public versus private; men versus
women; obedience versus righteousness, all of this accompanied by both the idealism
and the error that have characterized humanity.
When watching the performance for which this translation was written at the Edinburgh
Festival last August, my attention kept being drawn to the monitors that displayed the lines
as they were spoken. In Ivo van Hove’s convincingly raw stage representation of Thebes, the
monitors’ official purpose was to assist those who could not hear well. To me, however, they
See www.ejiltalk.org/in-the-dock-in-paris-%E2%80%93-the-judgment-by-joseph-weiler-2/.
Koskenniemi, ‘A Trap to the Innocent’, in C. Kress (ed.), The Crime of Aggression (forthcoming).
4
5
EJIL Editors’ Choice of Books 2015
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revealed that the real star of this evening was not Juliette Binoche as Antigone but, rather,
poet/essayist/classicist/scholar Anne Carson’s translation. It is Carson’s translation that
makes this 2,500-year-old text so new. Take the first encounter between Antigone and Kreon
after Kreon has found out that it was his own niece who buried Polyneikes:
Kreon: answer me this and no long speeches
you knew this deed to be forbidden by decree
Antigone: of course I did
Kreon: and yet you dared to disobey the law
Antigone: well if you call that law
This present-day dialogue focuses not so much on their relationship as ruler and subject as that of guardian and rebellious youngster. But it then develops into their fundamental debate on positive law versus natural law – a dialogue that can provide useful
in undergraduate lectures.
As befits a true classic, one can be surprised by something new on each re-encounter. Antigone’s righteousness/disobedience/independence/stubbornness intrigued
me in the past; this time I was struck by the part of Haimon, her fiancé. Confronted
with the decision of his father Kreon, the king, to have Antigone killed for having
disobeyed the order not to bury her own brother, Haimon at first comes off as a lousy
boyfriend:
Kreon: you’ve heard the verdict on your future bride
so are you in rage against your father, child
or are we still friends?
Haimon: father, I’m yours
I trust your judgment
no marriage could outweigh this
But after stressing his loyalty to his father as a son, he relies on that loyalty to challenge
the wisdom of his father’s governance. Having heard the people of Thebes expressing
support for Antigone’s actions, he counsels his father to seek advice:
Haimon: … please don’t be so absolutely singleminded
whoever imagines he alone is the one
who knows how to think or speak or feel
the man is an empty page
there’s nothing shameful in being a person able to learn …
Kreon: me at my age go to school and get wisdom from this stripling
Haimon: you would learn nothing unjust
Kreon: nothing unjust to honour anarchy
Haimon: I do not honour anarchy
Kreon: is the girl not tainted with that malady
Haimon: the whole city of Thebes says otherwise
Kreon: shall Thebes prescribe to me how I should rule
Haimon: listen to yourself you sound like a boy dictator
Kreon: whom else should the government depend on
Haimon: no city belongs to a single man
Kreon: surely a city belong to its ruler
Haimon: why not find a desert and rule all alone
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I wondered if it was this passage that the person sitting next to me, randomly allocated
by a ticket-selling computer program, had in mind when she commented after the
play: ‘It is all so timely. We are still waiting for the Chilcot report.’
So Real: Alex de Waal, The Real Politics of the Horn of
Africa: Money, War and the Business of Power (2015)
The pursuit of ideal theories in the absence of a thorough understanding of the
present and the past can have tragedy’s horrific consequences, often euphemistically labelled ‘side-effects’ of otherwise good intentions. Perhaps because the fields
within which I mostly work – international criminal law and international human
rights law – are so filled with ideal theories of rights and justice, I am drawn to
books that attempt to understand what is ‘really’ going on. Of course, any theory of what is ‘really’ going on will be incomplete, and as Ronald Atkinson has
rightly pointed out in his comments on my commitment to such realism, ‘reality
… is too complex for any assertion of certainty’.6 However, my interest in the ‘real’
is not so much a pursuit of certainty – one of the factors that accelerated disaster
in Antigone – as an attempt to understand the present and past before evaluating
assertions about ideal types or pursuing ideals. In ‘Philosophy and Real Politics’,
Raymond Geuss argues that philosophers should first attempt to grasp why real
political actors behave as they actually do before they develop ideal theories.7 I am
interested in trying to understand the ‘realities’ to which international criminal
law, international human rights law and responsibility to protect theories apply
their legal categories.
Alex de Waal’s The Real Politics of the Horn of Africa: Money, War and the Business
of Power is a beautiful illustration of an attempt to understand what is ‘really’ going
on. His book forcefully sets forth one far-too-often ignored ‘reality’ of war, peace
and politics in Africa and beyond. Rather than explaining these phenomena by reference to grievances, ethnic hatred or greed, he reveals how they are dependent to
a large extent on the ‘political budgets’ with which loyalty is literally bought on a
‘political marketplace’. Oil exports, aid funds and Western military assistance for
counter-terrorism and peace missions keep this market liquid, while integrating it
into international markets that increase the volatility of the local loyalty price and
speed up shifts in alliances.8 As a result, war and peace depend at least as much
on political leaders’ political budgets as on their ideological agendas and normative commitments. While one explanation among many, this analysis of ‘real politics’ provides insights that go to the core of the stated objectives of some areas of
international law. For instance, if international criminal law aims to counter impunity, it is worthwhile to study the causes of impunity. In situations governed by the
8
6
7
Atkinson, ‘Book Review’, 5(1–2) Journal of International Humanitarian Legal Studies (2014) 397.
R. Geuss, Philosophy and Real Politics (2008).
See also his concise ‘Dollarised’, London Review of Books (24 June 2010).
EJIL Editors’ Choice of Books 2015
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political market place, impunity is one of the currencies (with political trials being
the other side of the coin).9
So Inspiring: Edward Thomas, South Sudan: A Slow
Liberation (2015)
When the world’s youngest state spiralled into civil war less than two years after its
independence, commentary was rife with explanations ranging from local tribalism
to a failure on the part of the international community to build the South Sudanese
state. Edward Thomas’ book shows how these and many other explanations fail to
understand how South Sudan came about, and, as its title gives away, is still working on its own liberation. His book is inspiring not just for those who are interested
in South Sudan or in other states that seem unable to escape armed conflict but also
for anyone who does research that aims to understand. His argument derives from
an impressive combin­ation of individual narratives with macro-economic analyses,
history and world politics, anthropological research and political theory. Most not­
ably, he extensively draws on South Sudanese and Sudanese sources, integrating their
knowledge and experiences in an international literature that has often remained
disconnected from the scholarship produced by people in the area studied. The book,
therefore, is not just a must read for South Sudan scholars but also for those seeking
inspiration for doing empirical research in its strong­est form.
So Challenging, So Encouraging: Samuel Moyn, Human
Rights and the Uses of History (2014)
It may seem surprising to label Samuel Moyn’s work as challenging, for his own ambitions are relatively modest: ‘To use the past in a better way than to abuse it for the sake
of the limited human rights movement of our day, with its post-Cold War dreams and
disappointing outcomes, seems the most worthwhile goal.’ However, his work is challenging precisely because he challenges us to take history seriously. Warning against
historiography that ransacks the past ‘as if it provided good support for the astonishingly
specific international movement of the last few decades’, he critiques other scholars’
recently published histories of, among others, humanitarian intervention, international justice and anti-torture activism for doing precisely that. His challenge is relevant
beyond human rights law; in international law more generally, history is often raided
for examples of ‘state practice’, disconnecting it from the context that gave it meaning.
This short, powerful book is at the same time encouraging; combining essays that were
mostly first published as book reviews, it restores the book review to its academic dignity.
In a day and age in which the pressure to publish means that writing book reviews seems
to have become an unaffordable luxury for many academics, Moyn’s book shows that a
thorough engagement with other scholars’ work can result in a first-class publication.
9
I develop this argument in S.M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the
International Criminal Court in Uganda and Sudan (2013), ch. 5, 371–378.
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So Fictional, So Real: Andreï Makine, L’amour
humain (2006)
And then, finally, a recommendation from the heart that may look like cheating,
for books in the Editors’ Choice series are usually non-fiction. However, if one
aim of reading is to have a better understanding of our world, some fiction comes
closer to reality than non-fiction. Andreï Makine’s work falls into this category.
My uncle once advised me that a person should try to read at least one author’s
entire oeuvre. There are some international lawyers with respect to whose work
I have this ambition, but since they are still alive, I will not mention them here
(they may feel stalked whenever I run into them). In the world of fiction, I have
read most of Makine, who grew up in the Soviet Union before receiving political
asylum in France during the last years of Soviet rule. Few authors are as perceptive when it comes to the impact of big-idea politics on ordinary people, the
pervasiveness of displacement that is inherent in exile and, even, the essence of
human love.
This year I re-read his L’amour humain, the story of Elias Almeida. Following
his father on a revolutionary trail in Congo after his mother is killed in his
native Angola, Almeida is initially taken by the ideology. But soon he discovers the disconnect between the ideologies and their realization, and how, for
the leaders, there are in fact ‘two peoples: one of them, glorified in speeches,
the “working masses”, whose triumphal entry into the paradise of communism
was being prepared for, an ideal people, as it were, and then this other people,
which thanks to its humdrum destitution brought dishonour to the great revolutionary project’. He also encounters Westerners who join the cause, and then
leave again:
The whole of the West was there … The arrogant desire to transform other people’s lives into
an ‘experiment’, into a testing ground for their own ideas. And then, if this human material
resists, to abandon it, to move in search for a more malleable one. Most of all, he grasped the
very great difference between two types of revolutionary: those who could pack their bags,
depart, settle somewhere else, and those who did not have this choice.
Among the former is ‘[a] woman ready to sacrifice millions of human lives on the altar
of an Idea but who wept when she thought of her blind dog’. When the ideologies have
fallen apart, the only thing of value that remains is human love. Through Almeida’s
eyes, Makine reveals the magic of human love in the most ordinary moments of the
most ordinary lives, including all of ours.
In the face of the crises that the world is facing, closing this list of end-of-year
re­commendations with a wish for a ‘peaceful’ 2016 seems utopian. Makine considers the summation of human history ‘fine words, the thrill of battles and enmities,
victories greedy for corpses, and, when it’s all over, this calm, grey winter’s day, the
scent of a wood fire, the intense sensation of being at one with oneself ’. Perhaps the
most I can realistically and genuinely wish to all patient readers is the experience of
that sensation.
EJIL Editors’ Choice of Books 2015
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Christian J. Tams’ Choice
Jan Lemnitzer. Power, Law and the End of Privateering. London: Palgrave
Macmillan, 2014. Pp. 272. £60. ISBN: 9781137318633.
Yuval Shany. Assessing the Effectiveness of International Courts. Oxford: Oxford
University Press, 2014. Pp. 322. £70. ISBN: 9780199643295.
‘What matters now [in research on international law] is the study of the conditions under which international law is formed and has effects’, Greg Shaffer and
Tom Ginsburg noted on the first page of their 2012 article on the ‘empirical turn in
legal scholarship’.10 According to their test, the books I chose could probably be said
to ‘matter’, even to ‘matter now’. Jan Lemnitzer offers an exciting account of how a
particular aspect of international law was formed, and Yuval Shany provides a framework for studying the effects of international judgments. Their two books are very different, but they both draw on social sciences research methods to elucidate prominent
phenomena of international law – a treaty in Lemnitzer’s case, international courts in
Shany’s. And they both are – or at least in my case were – eye-openers.
Lemnitzer’s book is that of a historian assessing an international treaty, the 1856
Declaration of Paris Respecting Maritime Law.11 Largely ignored by today’s mainstream literature, the Declaration marked a milestone in the development of maritime law: it outlawed
privateering and, at the same time, strengthened the rights of neutrals, thus ushering in ‘a
new era in the history of international maritime law’.12 It also marked a milestone in the way
international law was made, in that it ‘was the world’s first major example of international
“legislation” by means of multilateral treaty’13 – a treaty agreed by seven states, which by
1860 had attracted almost 50 ratifications. So perhaps one could say that, in addition to ‘a
new era in the history of international maritime law’, the Paris Declaration also ushered in a
new era of conscious international law-making through multilateral instruments.
In his work, Lemnitzer traces the diplomatic history of the Declaration and uses it to
illustrate the potential impact of international law on international relations. On the latter,
broader, issue, he probably tries to do too much. Drawing on his analysis of one document,
albeit an historically important one, he advances general claims about the nature of international law (‘house rules of the international community’) and its capacity to restrain power
(international law is ‘real, but [it is] what states make of it’). His repeated statements that
the Paris Declaration was at the ‘origin’ of international law is, to put it mildly, surprising,
and his perspective of ‘law versus power’ at times schematic. However, these shortcomings,
I felt, were more than made up for by Lemnitzer’s treatment of the Declaration and its context. Drawing on extensive archival research, his account of the public and secret diplomacy
has just so much to offer – not only for naval inclined readers but also for those interested
in the interplay of power politics, commercial (merchant) interests and public opinion. For
Shaffer and Ginsburg, ‘The Empirical Turn in International Legal Scholarship’, 106 American Journal of
International Law (2012) 1.
11
Declaration of Paris Respecting Maritime Law 1856.
12
Romuald Haule, ‘Paris, Declaration of (1856)’, in R. Wolfrum (ed.), Encyclopedia of Public International
Law (2008), available at www.mpepil.com (last visited 24 Nov. 2015).
13
Stephen Neff, War and the Law of Nations: A General History (2005), at 188.
10
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instance, why did Britain, after the Crimean War, suddenly reverse its long-held view and
accept limits on the right to seize neutral ships and goods and did it stumble into this change
of policy? By what means did the USA, threatened by the emerging consensus against privateering, seek to water down the Declaration’s prohibition? Why were two disparate issues
– privateering here, rights of neutrals there – combined into a package deal? And how come
the Senate of Bremen, of all players, came to lead an (almost successful) international campaign for the protection of private property at sea that might have undermined the 1856
Declaration? Lemnitzer answers all of these questions and many more. He has an eye for
instructive illustrations and anecdotes (and weaves them in cleverly), but he never loses sight
of broader developments. And he writes well and, at under 200 pages, economically. The
result is an accessible account of 19th-century maritime legal history that can be read during a weekend (perhaps in a seaside hotel, while looking out on the sea) – an illustration of
how much international lawyers can learn from serious historical research on legal issues.
* * *
My second pick is quite different. It is not necessarily a weekend read, and its focus is
much broader. In it, Yuval Shany, one of international law’s leading voices on international courts and tribunals, assesses their effectiveness in an analysis heavily drawing on
social science research into international institutions. His book is presented as a contribution to empirical legal scholarship, but it is a particular contribution that puts forward a
‘conceptual framework to analyze questions about … effectiveness’. Such a framework is
necessary because, as Shany notes, effectiveness is a highly complex category. In essence,
he argues that international courts are set up to perform very different functions (from
dispute settlement, to law-making, to institutional governance), and it is against these
different expectations that their effectiveness needs to be judged. This makes for a slightly
bloodless starting point – a court is effective if it ‘attain[s] ... the mandate providers’ goals’
– but it holds the key to a differentiated analysis of courts and tribunals that challenges
conventional legal approaches. Shany makes the point expressly: ‘[T]he traditional proxies for judicial effectiveness that a good part of the international law literature relies upon
– caseloads, judgment-compliance records, acceptance of jurisdiction and so on – actually tell us little about goal-attainment.’ Instead, effectiveness needs to be judged against a
broader set of goals, and in an ‘institution-specific’ manner. In simpler terms and by way
of three illustrations: some courts are weak dispute settlers but successful law-makers;
others mainly act as a supervisory organ for domestic courts (and through them), and
still others were set up to legitimize the exercise of public authority. All of these courts can
be effective or ineffective, but, clearly, their effectiveness needs to be measured against different yardsticks. To identify these standards becomes a real challenge, but Shany introduces useful categories (ultimate goals, intermediate goals and goal ambiguity) that can
guide the analysis.
In emphasizing the need for a differentiated analysis that takes account of the
diverse functions of international courts, Shany is part of a relevant strand of new
EJIL Editors’ Choice of Books 2015
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research on international courts, now largely consolidated in the wonderful Oxford
Handbook on International Adjudication.14 My general feeling is that this new strand of
research has significantly enhanced our understanding of international courts and
their role in international relations – perhaps precisely because it draws so much
on insights from social science research (perish the thought!). The question is how
much of this will trickle down into the mainstream legal literature. Can future international law textbooks still afford to treat courts within the chapter on dispute settlement (thus ignoring their many other functions)? And do we really need to rehearse
old debates about international adjudication’s ineffectiveness whenever a court judgment is ignored? Shany’s book, and the research strand of which it forms a part,
suggests that many mainstream accounts of courts and tribunals need more than a
little updating.
Jan Klabbers’ Choice
Roberto Farneti. Mimetic Politics: Dyadic Patterns in Global Politics. Michigan:
Michigan State University Press, 2015. Pp. 194. $19.95. ISBN: 9781611861488.
Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity. Chicago: Chicago
University Press, 1992. Pp. 235. $23. ISBN: 9780226808383.
Ernest Weinrib, The Idea of Private Law. Oxford: Oxford University Press, rev. edn,
2012. $38.95. Pp. 272. ISBN: 9780199664795.
Surabhi Ranganathan. Strategically Created Treaty Conflicts and the Politics of
International Law. Cambridge: Cambridge University Press, 2014. Pp. 484. £75.
ISBN: 9781107043305.
Jonathan Franzen. The Corrections. New York: Picador, 2001. Pp. 576. $17. ISBN:
9780312421274.
Possibly the most disturbing book I have read in a long time is a brief volume written by an
Italian political theorist, Roberto Farneti, under the title Mimetic Politics: Dyadic Patterns
in Gobal Politics (2015). It is disturbing not for the lack of quality but, rather, for its bleak
outlook. Farneti, working in a tradition often traced back to Girard, suggests that global
politics is often based on mimesis: states essentially imitate one another until things spiral
out of control, at which point a sacrifice is needed in order to restore relatively normal or
peaceful relations, and sacrifice typically takes the form of some kind of overt conflict.
Perhaps the most well-known illustration is the Cold War madness of mutually assured
destruction (although the sacrifice could be averted due to the falling apart of one of the
protagonists), but trade wars may also make for ever so many fine examples, never mind
the sort of escalation that so often characterizes the Israel–Palestine conflict.
This is disturbing to the international lawyer (this international lawyer, at any rate),
in that if Farneti is right it follows that law has little role to play and especially that
responsibility and accountability would seem to be based on seriously impractical
C.P.R. Romano, K.J. Alter and Y. Shany (eds), Oxford Handbook on International Adjudication (2014).
14
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premises. Disregarding strict liability, most liberal responsibility regimes (and international law is no exception) are premised on actors acting rationally – no matter how
perverse their rationalism – and acting on the basis of intentions. Yet Farneti’s argument suggests that the main operative element in state behaviour in neither ratio nor
intent but simply imitation. States cannot help but follow each other’s examples, and
international relations are thus bound to result in war as the ultimate sacrifice or in
litigation as the sublimation of sacrifice. This helps explain the success of the World
Trade Organization’s (WTO) dispute settlement body, but it may also help explain why
trade wars keep on occurring: the disciplining efforts of the WTO are no match for the
mimetic impulse.
Obviously, Farneti’s work is based on a bundle of assumptions that, if unpacked,
may suggest that not all need be ruinous, and he himself gives a semi-religious twist to
overcome despair. One may wonder, for example, or hope, that good behaviour too can
be imitated, and he leaves open the question why states follow some examples but not
others. Still, at the end of the day, Mimetic Politics sends a powerful, if somewhat bleak,
message, and, more generally, the notion of mimesis has a potential explanatory force
that has thus far remained under-utilized in international affairs.
If Farneti decrees that our rationalist and liberal assumptions are difficult to
re­concile with empirical observation in the global arena, then perhaps the conclusion presents itself that our rationalist and liberal principles are themselves in need
of some corrective. This, it seems, is the message of Stephen Toulmin’s Cosmopolis:
The Hidden Agenda of Modernity (1992), a book I first read just after it came out
but re-read last year. As so often happens, the re-reading made me appreciate the
book far more than the original reading. Toulmin’s main argument is that Western
­philosophy went overboard when, with Descartes and Kant, it placed too much of
a premium on rationalism, at the expense of wisdom and judgment. His is an eloquent plea for a re-appraisal of Montaigne, in particular, whose essays, so Toulmin
suggests, display precisely the sort of wisdom that unfettered rationalism has such
a hard time grasping. Cosmopolis is an exceedingly well-written plea for humanism,
yet without throwing out the rationalist baby with the bathwater. Its language is
elegant, and the scope of its learning is hugely impressive. It brings together themes
that have pre-occupied Toulmin for half a century, including a re-appraisal of the
typically juridical (well, common law) technique of expanding wisdom through the
cases rather than by proclaiming grand principles.15 The underlying assumption
is worth bearing in mind: all decision making is contextual, so it stands to reason
(quite literally) that behaviour should not be fully decontextualized and sterilized
when evaluated. What is more, since context cannot be predicted or controlled,
there is a risk in stating imperatives that are all too categorical.
Ernest Weinrib’s The Idea of Private Law (2012) is equally impressive. Weinrib’s
classic study, first published in 1995, posits that, contrary to what is often suggested, private law need not serve some broader social goal. The function of private
law is not, for example, to re-distribute wealth or to increase economic efficiency;
See, e.g., S. Toulmin, The Place of Reason in Ethics (1960).
15
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instead, the function of private law is to be, well, private law. It contributes to justice, so Weinrib suggests, by focusing on corrective justice. It brings the doer and
the sufferer of harm together and creates a relationship between the two, independent from any other relationship; here he enlists both Aristotle and Kant in support.
Needless to say, here too various assumptions may influence one’s appreciation, and
Weinrib’s libertarianism may not be to everyone’s liking – accepting corrective justice as justice may entail the restoration of a previously unjust relationship. Even so,
the work is written with great verve and authority, and its dismissal of any particular functional role for private law is quite an eye opener – private law serves neither
political nor economic goals in Weinrib’s work. Given the influence of private law on
international law, Weinrib’s book has much to offer international lawyers.
The best doctrinal work I have read this year is no doubt Surabhi Ranganathan’s
study of treaty conflicts, Strategically Created Treaty Conflicts and the Politics of
International Law (2014), but I should add that I come to this work with a double
bias. She takes further my argument that the open-ended nature of treaty conflicts is not necessarily a bad thing (which obviously makes me positively disposed
towards the book),16 and I was one of the examiners of the doctoral thesis on
which the book is based (bias number two). Strategically Created Treaty Conflicts
is a technically highly accomplished work of legal scholarship, showing great
mastery not only of the law of treaties but also of international criminal law, the
law of the sea and disarmament law. With the help of well-crafted case studies,
Ranganathan demonstrates that the political space left open by the indeterminacy of the Vienna Convention’s rules on treaty conflict can be used by states for
strategic purposes, in order to change or adapt existing regimes.17 One of its more
pleasant qualities is that it takes the critical revolution in international law seriously, while showing that it is possible to do highly insightful doctrinal work that
is aware of international law being highly political and politicized.
My final book is a work of fiction. I had never read Jonathan Franzen’s The
Corrections (2001) until recently, despite all of the hoopla surrounding its publication a little more than a decade ago. The hoopla, it seems, was fully justified. The
Corrections is a fine novel about a family in disarray, with a father who suffers from
Alzheimer’s, a mother who tries to keep everything together and three adult children who mess up their own lives in a variety of ways. The Corrections is a personal
affair in the best US tradition of, say, Updike or Cheever, with a sprinkling of Roth
for good measure. None of that would on its own warrant its inclusion in a list
compiled by an international law academic such as myself, but as it happens the
book contains the best depiction I have seen of the sort of cowboy capitalism that
followed the dissolution of the Soviet Union and the subsequent prescriptions of
the global financial institutions. The book’s hilarious and sad discussions on how
to get rich in 1990s Lithuania alone are already worth its retail price and, in the
end, no less disturbing than Farneti’s mimesis.
See J. Klabbers, Treaty Conflict and the European Union (2008).
Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331.
16
17
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Jean d’Aspremont’s Choice
Nils Jansen. Non-Legislative Codifications in Historical and Comparative Perspective.
Oxford: Oxford University Press, 2010. Pp. 192. $77. ISBN: 9780199588763.
Harold J. Berman, Law and Language. Effective Symbols of Community. Cambridge:
Cambridge University Press, 2013. Pp. 218. $90. ISBN: 9781107033429.
Michael Polanyi, Knowing and Being. Essays assembled by Marjorie Grene. Chicago:
University of Chicago Press, 1969. Pp. 264. $30. ISBN: 9780226672854.
For all of those scholars cultivating a generalist expertise of a topic, the contents of
each year’s readings can vary dramatically. For them, looking back at such readings
can prove very illuminating as it can lay bare huge fluctuations in the literary and
scholarly sources that serve as inspiration. In contrast to the very doctrinal works
I read and reported on last year, my readings of the last 12 months have been primarily devoted to theoretical materials meant to feed into my work on the structure of
legal argumentation as well as the professionalization of international law. This may
explain why none of the books I list here qualifies as international legal scholarship
properly so-called. Yet, in the light of the insights I gained from them, I have come
to consider these books as ‘must reads’ for any generalist international lawyer interested in looking beyond the mere mechanical deployment of the formal modes of legal
reasoning imposed by the discipline. These also are books that are one click away for
international lawyers in wealthy parts of the world as they are published by mainstream publishers and available in most online bookstores.
Before sketching out their content, an observation is warranted on the extent to
which not only the selection of our readings but also reading itself is prejudiced by the
works and the projects we have in the making. What we make of what we read is very
much contingent on what we expect from such materials and even more on what we
hope to find therein. In this sense, when we read for scholarly purposes, we turn ourselves into hungry hunters with some pre-reflective preferences or expectations about
the type of meat we want to bring home – and, thus, the type of insights we want to
present in our own scholarship. The risk is thus that our prey ends up being embellished or corrupted by those pre-reflective preferences or expectations. This is why
our reading is, to a large extent, performative as it constitutes the insights we gather
from the materials from which we draw inspiration. This very elementary observation
explains why, for each of the books mentioned below, I take pains to say a few words
about my pre-reflective preferences at the moment of reading – that is, the context in
which the reading was done. It may explain why colleagues, in a different context and
in relation to different scholarly projects, may have made something radically different
of these texts. It should finally be highlighted that my listing of the following books
does not entail any value judgment about the intrinsic merit of the theses defended
therein, let alone their direct transposability to international legal debates. My choices
for this year should more simply be read as refreshing calls to shed some common
assumptions found in international legal scholarship.
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Forget Rules and Sources: Nils Jansen, Non-Legislative
Codifications in Historical and Comparative
Perspective (2010)
As I have argued elsewhere, international lawyers have this tendency to construe most
structures of argumentation as sets of rules properly so-called. Since structures of legal
argumentations are understood as rules, these are said to originate in the sources of international law. This means that everything in international legal argumentation is supposed
to look like a rule and emanate from those processes recognized as being law creative by
the doctrine of the sources of international law. Nils Jansen’s book constitutes an excellent
reminder of the limitations of such rule-based and source-based understandings of the
structures of international legal argumentation. It is not so much that he recalls the selfreferentiality inherent in rule-based and source-based understandings of the structures of
international legal argumentation, of which international lawyers are probably aware but
not too bothered by. More fundamentally, he provides a well-documented discussion on how
authoritative modes of legal argumentation are designed outside any formal rule-making
process. Drawing on the examples of ius commune, the Principles of European Contract
Law, or the UNIDROIT Principles, Jansen demonstrates how such structures of legal argumentation were cast by some professionals and how authority was subsequently ‘staged’
without any detour through rule-making or sources.18 His work, which reviews the various
techniques to ‘stage’ authority in the absence of rules and sources, provides support for the
contention that the authority of the main patterns of argumentation needs neither rules
nor sources as it is autopoietically created by the professionals that exercise this authority.
Applying Nils Jansen’s model to modes of legal argumentation associated with sources or
responsibility, Article 38 of the Statute of the Permanent Court of International Justice or
the Articles on State Responsibility ought not to appear as laying down international rules
properly so-called.19 Rather, these texts should look like the authoritative containers of some
central modes of legal reasoning whose authority was subsequently staged by the professionals of international law. It will not come as a surprise that while reading Nils Jansen’s
book on non-legislative codifications and working on a book pertaining to the structure of
international legal argumentation, I found support and additional illustration for my argument that mysticism is at the heart of the making of international legal arguments.
Forget Stanley Fish: Michael Polanyi, Knowing and
Being (2013)
When modelling the idea of a community of international lawyers and the social constraints on interpretation, international lawyers traditionally come to rely on Stanley
Ole Lando and Hugh Beale (eds), Principles of European Contract Law, parts 1 and 2 (2000); International
Institute for the Unification of Private Law, UNIDROIT Principles of International Commercial Contracts
(3rd edn, 2010).
19
Statute of the Permanent Court of International Justice 1920, 6 LNTS 379, 390; International Law
Commission, Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/83, 3
August 2001.
18
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Fish’s famous – or infamous – notion of interpretive community. Indeed, there exists a
great number of works that draw on the descriptive and analytical categories designed
by Fish. I have used his various frameworks myself quite extensively. The success of
Stanley Fish among international lawyers is conspicuous. Oddly enough, the work of
Michael Polanyi, despite his similar efforts in modelling communitarian dynamics and
constraints has not enjoyed the same popularity. It is on the occasion of my reflection
on the variety of models available to theorize the socialization of international lawyers
as international lawyers that I came across the earlier-mentioned collection of essays
assembled by Marjorie Grene, which provides a condensed and useful foray into the
theory of knowledge of Polanyi. My attention was first drawn by his essay entitled
‘The Republic of Science: Its Political and Economic Theory’ from 1962. In this essay,
Polanyi makes the claim that the community of scientists is structured and organized
as a body politic and functions according to economic principles similar to those by
which the production of material goods is regulated. In this context, it is no surprise
that authority is not distributed evenly in the scientific community. In developing this
idea, Polanyi makes the point that it cannot be otherwise, and it is of no avail to seek to
flatten the scientific field and purge it from its power structures. Short thereof, the field
simply would not work. Polanyi simultaneously sheds light on a fundamental tension
at the heart of any scholarly enterprise, namely the tension between the criteria of
plausibility that favour conformity with existing structure and the value attached to
originality that encourages dissent. He argues that this internal tension is essential in
guiding and motivating any scientific work.
A book sometimes nurtures reflections in relation to several of the writing projects we have in the pipeline. This was the case for me with this collection of essays by
Polanyi. As I was also working on the structure of international legal argumentation
at the time, my attention turned to another essay, namely ‘The Growth of Science in
Society’ from 1967. In this essay, Polanyi discusses Ernest Nagel’s claims that we do
not know the foundations of our structures of argumentation and that we should
refrain from questioning them. Polanyi makes the point that the lack of philosophical foundations has not damaged the authority of science but, rather, increased it.
Here too, I have found in this discussion of Ernest Nagel useful support for my own
claim that the structures of international legal argumentation are mystical. It simultaneously reinforced my belief that foundationlessness does not invalidate legal arguments. To the contrary, this is what makes them possible.
Forget the Cacophony and the Suspicions against
Multi-Disciplinarity: Harold J. Berman, Law and
Language: Effective Symbols of Community (1969)
While exploring how to understand the consequences of the socialization of international lawyers as international lawyers and their feeling of belonging to one linguistic community, I was struck by the work of Harold Berman. Reading Harold Berman
can only prove very refreshing for an international lawyer. In this work from 1964,
EJIL Editors’ Choice of Books 2015
1041
Berman claims that we are entering into a new age of integration and reconciliation
in law and that we would finally overcome false opposites. Through this book, he seeks
to spearhead a culture of reconciliation and tries to recast the legal language in a
way that makes it accessible. His reconciliatory agenda is made possible by his notion
of ‘communification’ whereby he sees language as being as much about meaning
making as it is about the reciprocal transfer of meaning – a multi-dimensionality and
reciprocity that he seeks to capture with the idea of ‘speak–listen’. He contends that
language is what brings us together. It is a process of creating social relations that
presupposes a transfer of meanings not only from the speaker to the listener but also
vice versa – the response of the listener being presupposed in every utterance of the
speaker. He acknowledges that language unites as much as it divides us. Yet, these
divisions are only cognizable because there is somewhere a common language. This is
why, in his eyes, by ‘speak–listening’, we sustain, as much as we renew, the community to which we belong. At the same time, Berman makes the claim that the language
of law should be nourished by poetry, liturgy, literature and art. He believes in the possibility of a community of humanists and intellectuals all sharing insights with one
another. Thus, he stands out as an early defender of multi-disciplinarity – at least as it
is understood today – and promotes it in a reconciliatory way that contrasts with the
multi-disciplinarity promoted by the New Haven Law School.
In the 21st century, as international lawyers seem embroiled in cacophonic turf
wars and find multi-disciplinary suspicious, reading Berman confronts them with the
genuine belief in the possibility of a unified linguistic community of international law
that can simultaneously reach out and speak to other linguistic communities. In this
sense, reading Berman makes us travel in time and brings us back to an era when
international lawyers could dream of being part of a larger intellectual and humanist
community.
I cannot help wrapping up these three short sketches with a remark about the
actual impact of a book on one’s scholarship. It is indeed tempting to seek to evaluate
the impact of a given work on an author by the extent to which the latter explicitly
refers to the former. When writing this short overview, I returned to the manuscripts
I had composed with the help of the earlier-mentioned books. I was perplexed by the
extremely limited number of references I had made to these books. Needless to say
I double-checked whether I had been diligent enough in referencing. It turned out
that there was no doubt I had. Yet such verification reminded me that a quantitative evaluation of referencing does not tell us anything about actual influences and
central sources of inspiration. What matters is the referencing at the key moments
where the conceptual and architectural choices behind an argument are spelled out
and where some central paradigms are endorsed or rejected. And, yes, in all of those
manuscripts, Jansen, Polanyi and Berman occupied the strategic footnotes in the
defining moments of the narrative.