As I sit down to review International Law's Invisible Frames, my own cognitive frames are already in full gear. My perceptions of this remarkable collection of essays—and therefore any thoughts I can offer in response—are inevitably molded by “automatic schemata,” “socio-cultural patterns,” and a fair measure of “group identity” (Hirsch, pp. 20, 21, 25). I suspect I am not alone in this condition. To paraphrase Maurice Merleau-Ponty, reading always happens “from somewhere.”Footnote ¹ The vantage point of the reader determines how they approach the text, enabling them to see certain things while losing sight of certain others.

Take, for example, the overarching theme of this book, co-edited by Andrea Bianchi, of the Graduate Institute of International and Development Studies, and Moshe Hirsch, of the Hebrew University of Jerusalem: namely, an exploration of “how social cognition and knowledge production affect our understanding and representation of international law” (Bianchi and Hirsch, p. 5). The theme is bound to attract those readers who are predisposed to question the perceived objectivity of the international legal system and problematize the axioms of “rationalist international scholarship” (Van Aaken and Elm, p. 37). This predisposition, in turn, may stem less from a deliberate intellectual stance than from an unmediated “aesthetic response”: an array of moral, social, and political reflexes that shape the reader's “initial intuitions” as to the value of the book itself.Footnote ²

Consider also the profiles of the contributing authors, many of whom are widely recognized for their critical research and/or their commitment to international socio-legal scholarship. Flipping through the table of contents will inevitably attract the attention of those who—like me—routinely turn to those authors for inspiration and guidance. Again, the attraction may reflect not only conscious admiration for the contributors, but also the unconscious comfort of membership (Bianchi and Hirsch, p. 10): an instinctive sense of belonging to a “scholarly movement” (Rasulov, p. 193) that precedes and pre-judges any rational reading.

Finally, think about the positionality of the reader within the field of modern academia. The very act of reviewing the book in a leading international law journal is not a neutral exercise, but rather a move in a “game” that has material consequences for both the reviewer and the reviewees.Footnote ³ The former draws symbolic capital and recognition from the imprimatur of a powerful “gatekeeper” of knowledge production in the field (Bianchi, p. 168). The latter see their “insights, hypotheses, policy prescriptions, and explanatory narratives” being disseminated and engaged with, thus advancing, however modestly, in their quest to “secure a more dominant role within the disciplinary productive process” (Rasulov, pp. 193, 197).

What of this review, then? If my situatedness makes it impossible to “objectively apprehend and rationalize” (Bianchi and Hirsch, p. 4) the qualities of the book, I can at least shed light on the invisible frames that underlie the book itself. Where does the project come from? On what assumptions does it rest? What interventions does it seek to make? And, perhaps more intriguingly: What relationships tie together the participants in the project? Do their essays all follow the same current, or can we spot some crosscurrents running underneath?

Let me take the metaphor of currents and crosscurrents seriously. “Literature,” according to Frank Conroy, “is a river.”Footnote ⁴ While originating from a single source, a river can split into smaller streams, each with its own swirls and bends. Some streams will eventually converge toward the main river mouth, while others will flow toward other destinations altogether. This imagery provides an apt descriptor for the book's contents. On the surface, the essays collected in the volume share a strong premise and pursue common disciplinary ambitions. Yet, beneath the surface, this apparent cohesiveness conceals a confrontation between different intellectual traditions (positive empiricism vs. critical studies), with distinct preoccupations (practical relevance vs. deconstruction of discourse) and competing agendas (retrieval of universality vs. counter-hegemonic mobilization). Mapping the hidden hydrography of the book can help bring those tensions to the fore and better locate the book's contributions to the wider sea of international law debates.

So let us start from the river source.

The basic premise of the book is as simple as it is powerful: “there is no unmediated access to knowledge and . . . knowledge is mentally and socially constructed” (Bianchi and Hirsch, p. 5). International lawyers, much like any other humans, acquire knowledge and orient their behavior through dynamic cognitive processes driven by “neurological, psychological, and sociological factors” (id., p. 2). Partly deliberate and partly automatic, such processes include the deployment of heuristics to make sense of complex information; the construction of mental representations of reality; and the development of “default assumptions about the characteristics of people, places, objects, or events” (Hirsch, pp. 17–20). Importantly, human cognition is not only a matter of individual experience. Instead, it is deeply entrenched in social and cultural structures and practices that “define the thinking of people in various communities” (Bianchi and Hirsch, p. 2).

It follows that, as a human and social enterprise, international law does not come about by any “natural” process, but rests on socio-cognitive frames that are often “unseen” by the very actors involved in the field (id., pp. 4, 8). These frames include “patterns of attention, language, metaphors, labels, biases, and structures of knowledge and knowledge production” (id., p. 2). As richly documented in the book, frames pervade every corner of what international lawyers (do not) think, (do not) see, (do not) say, and (do not) do. The textbooks they study at university delimit the scope of the questions and topics deemed “of relevance” to their expertise, while excluding other questions and topics as “out-of-frame” (Bernardino, pp. 293–94). Their recursive communications allow them to build a “shared, tangible universe of legal meaning,” but also blind them to “alternative ways of organizing the world” (Cohen, p. 220). And their shared dispositions and patterned interactions determine, at any given time, what does and does not qualify as “an acceptable and competent thing to say about international law” (Bianchi and Hirsch, p. 4). These and other examples show how socio-cognitive frames—and the epistemic biases that come with them—serve as both catalysts and guardians of knowledge production in international law (id., pp. 4–5).

From this source, the river begins to flow downstream along a steady, if meandering, course. Drawing from a variety of disciplinary perspectives, most essays in the book grapple with the theoretical and practical implications of looking at international law through the lens of cognitive frames. Collectively, the essays raise three broad themes.

The first is the partial deconstruction of the rationality of international legal behavior. Borrowing from behavioral economics and their challenge to the neoclassical model of the homo oeconomicus,Footnote ⁵ several contributors observe that international actors often “make choices that diverge from rational choice expectations” (Broude, p. 92). Whether at the negotiating table or in the courtroom, in a government building or at the UN headquarters, decisionmakers are susceptible to “framing effects” that shape their preference and belief formation and nudge their conduct in ways that “cannot be captured by standard game theory” (Van Aaken and Elm, p. 37). Seen from this angle, international legal action is not the expression of unbiased and objective deliberation, but something that can be manipulated (Venzke, p. 70). For instance, “framing each negotiator's problem description either in terms of gains or losses” may lead to different negotiating outcomes (Van Aaken and Elm, p. 44); likewise, “framing a legal issue in a certain way” may direct an international court to reach a particular conclusion (Bianchi and Hirsch, p. 5); and designing an appropriate system of incentives may encourage “prosocial behaviour” by states and other actors (Broude, p. 90).

This loss of objectivity is not limited to decision making but reaches deep into the “language and rhetoric used to construct social reality” (Van Aaken and Elm, p. 41). The purported universality of international legal argument gives way to a multiplicity of competing narratives, ceaselessly crafted and deployed in pursuit of strategic goals. Narratives are not mere tools of persuasion, nor do they simply convey normative beliefs. Rather, they make it possible to “absorb, sustain, and circulate” facts; help “safeguard or erode the authority” of legal interpretations; entrench or dislodge “normative preferences”; and, more generally, shape our very “knowledge of the discipline as well as what sits outside orthodox professional parameters” (Windsor, pp. 237–41). The metaphors that suffuse the language of international law are a particularly good case in point. At once “figures of speech” and “figures of thought,” they constitute the “shared imaginary” of international law, thus informing—and constraining—the way international lawyers “think, reason, and imagine in everyday life” (Cohen, pp. 222, 232–33).

At the philosophical level, this movement toward de-objectification questions the “ontological dualism” that holds international law as “distinct” from the world to which it applies (d'Aspremont, p. 111). Such dualism has permeated international legal thought for centuries—by either grounding international law in an external reality or, conversely, exploring international law's reality-making performances. Recasting this duality in “totalizing” terms, one contributor invites us to discern the “the self-confirming thinking that informs international legal thought” and “appreciate how international law always secures a confirmation of its own representation of the world in the world it applies to” (id., p. 122). Along similar lines, another contributor suggests that we ought to look at the discipline of international law as nothing else than “what international lawyers do,” namely “generate various sets of knowledge-products that did not exist before and would not have come into existence” outside of the “self-realization” of the discipline itself (Rasulov, pp. 181–82).

The second general theme that emerges from several chapters relates to the material and empirical conditions in which cognitive frames wield their effects. These frames are neither abstract nor neutral, but “institutionally embodied” (Slosser and Madsen, p. 72) and “grounded in power structures” (Bianchi, p. 155). The “machinery of knowledge production” in international law is the site of an endless “political struggle” over “what is deemed legally relevant or irrelevant” (Klabbers, pp. 201, 204) or “what is or is not a permissible argument within the field” (Bianchi, p. 158). Competing epistemic forces, each comprising a heterogeneous ensemble of actors, vie for control of disciplinary discourse, that is, the authority to allow “certain statements, practices and procedures to stay in circulation and others to be excluded” (id., p. 158). Whoever emerges victorious from this contest and imposes their vision as dominant gets to shape the perception of other social agents and, ultimately, the “social identity of the discipline and the profession” (id., p. 167).

This competition plays out at different levels and in different contexts. For instance, the vernacular and worldviews of international organizations are constructed through the linguistic and cognitive practice of “category building,” that is, the incessant development and refurbishment of prototypes, images, and analogies that reify “background assumptions” and “form institutional logics” (Slosser and Madsen, pp. 72–73, 77). Likewise, given the inherent “indeterminacy” of legal rules (Venzke, pp. 64–65), the authoritative interpretations offered by international courts and tribunals cannot but reflect the prevailing views of the community of practitioners (judges, counsel, bureaucrats, etc.) who run the judicial machinery in its everyday operations.Footnote ⁶ Finally, and perhaps most importantly, epistemic struggles agitate the production of knowledge in international law academia. Opposed “schools of thought . . . and theoretical traditions” strive to appropriate “disciplinary resources” (scholarly output, grant money, postdoc scholarships, etc.) to set the terms of the “foundational problematic” and the “admissible reasoning protocols” of the discipline (Rasulov, p. 193).

Whatever its form and context, the confrontation of epistemic forces has important distributive consequences, as it empowers certain actors and interests to the detriment of others. The narratives, discourses, metaphors, and modes of world sensemaking that dominate international law serve to naturalize the position of those in power and “defend the mainstream against its critics” (Cohen, p. 225). Consider two examples pertaining to humanitarian law. The first concerns the “myth of Solferino,” that is, the “heroic narrative” that depicts the early codification of the rules of armed conflict as an expression of “bottom-up humanitarianism” spearheaded by the Red Cross. By downplaying the role of the ruling elites of powerful nations, this myth “positioned the Red Cross in an unusually dominant position in comparison to other civil society actors in the development, interpretation, and codification of international humanitarian law” (Benvenisti and Lustig, pp. 258, 275). The second example relates to wartime investigations. The “cognitive and motivational biases” of investigating authorities, coupled with the “fog of war metaphor,” skew the factual and legal assessment of wartime conduct and often render “otherwise unjustified killings as lawful and acceptable” (Krebs, p. 125). As these examples show, the force of cognitive frames consists precisely of their ability to obscure the role of power and make us forget that knowledge production always “follow[s] an agenda, in support of someone's political project” (Klabbers, p. 203).

The third—and most interesting—theme that emerges from the book is a fundamental normative tension between the “empiricist” and the “critical” traditions that appear in it. While joining forces and “combining insights” (Venzke, p. 71) in the elucidation of how the invisible frames of international law shape the discipline, these traditions diverge in their formulations of solutions and prospective research agendas. Metaphorically, this is where the river branches into two streams pulling in opposite directions and flowing into different seas.

The contributors in the empiricist camp seem preoccupied, so to speak, with “taming” the power of cognitive frames and recuperating a measure of objectivity and rationality in international law. For them, the “defactualization” brought about by the dynamics of knowledge production is a “risk” that requires an adequate response (Krebs, p. 127). The purpose of studying those dynamics, then, is to better measure their impact on international legal behavior with a view to devising the necessary correctives. No matter how “complex” the analytical task, no matter how “indeterminate” the object of analysis, “empirical work can demonstrably be done” and “should not be abandoned for the sake of easier choices” (Slosser and Madsen, p. 84). Among the many methods available, computational science is attracting particular attention as of late. The deployment of big data analytics is seen by many as having the potential to “revitalize the identification of . . . international law formation and evolution,” generating discoveries that are “born from the data” as opposed to “hypotheses that are identified first and then tested on the dataset” (Megiddo, pp. 283, 291). Whatever the method used, the collection and analysis of experimental evidence is aimed at providing “workable, implementable insights” (Venzke, p. 56) to help policymakers and practicing lawyers “understand what is going on” and contribute to the “development and dissemination of behaviourally informed . . . practice” (Van Aaken and Elm, pp. 37, 44).

The contributors in the critical camp, for their part, are deeply skeptical of the “commitment to positivism” and the “assumptions of rationality” that underlie experimental behavioral studies (Venzke, p. 57). The latter's “obsession with method and empiricism,” it is argued, is but another form of dogmatism that ossifies the imagination and “loses sight” of the real issues to be tackled (Bianchi, pp. 172–73). For critical scholars, then, the mission is not to tame the impact of cognitive frames but, on the contrary, to embrace the “indeterminacy” and the “contingencies” those frames engender (Venzke, p. 55) and mobilize them in the pursuit of counter-hegemonic or emancipatory goals. Seen from this angle, framing can constitute “an important strategy in the hands of norm entrepreneurs” wishing to secure adherence to good causes—as was the case with the “labeling” of the Framework Convention on Tobacco Control as an “evidence-based treaty” (Melillo, pp. 141, 148). Alternatively, frames can be put at the service of “counterstorytelling,” that is, the telling of “alternative stories” that “call dominant narratives into question, and pave the way for new ones” (Windsor, p. 242). Above all else, unveiling the hidden dynamics of knowledge production can be a powerful antidote against international lawyers’ “resignation to the present order of things” (Venzke, p. 66) and an opportunity to “‘regard old problems from a new angle’” (Bianchi, p. 178).

The divide between the empiricist and the critical streams is nowhere resolved, despite some sporadic attempts to build bridges between the two (there, another water-related metaphor). But its very existence raises intriguing questions about the social, intellectual, and disciplinary relationships among the editors and the contributors of the book. Perhaps the juxtaposition of seemingly irreconcilable sensibilities was part of the project by design, as an attempt to provoke intra-disciplinary dialogue. Or perhaps the editors themselves unwittingly fell prey to the “culture of liberal agnosticism,” that is, “the commonly shared assumption that there is not really one right answer or one right approach to ‘doing’ international legal theory” (Rasulov, p. 183). Either way, the encounter and the confrontation that lie at the core of the book—or, if you prefer, the invisible frames that tie together these contributions by these international lawyers—constitute one of the most fascinating aspects of the book's hydrography.