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Three international lawyers in a hall of mirrors

Published online by Cambridge University Press:  03 June 2019

Jean d’Aspremont Open the ORCID record for Jean d’Aspremont [Opens in a new window]
Jean d’Aspremont*
Affiliation:
Sciences Po Law School, 27 Rue Saint-Guillaume, 75337 Paris Cedex 07 France, and University of Manchester, Oxford Rd, Manchester M13 9PL, United Kingdom
*
Email: jean.daspremont@sciencespo.fr
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Abstract

This article uses the metaphor of the hall of mirrors to produce three distinct images of the international lawyer. The hall of mirrors refers here to the extent to which international legal discourses are built on self-referential mechanisms tantamount to mutually reflecting mirrors, by virtue of which movements and postures are reproduced ad infinitum without disclosing the origin thereof. According to the first image produced by virtue of the metaphor, the international lawyer feels invincible and fully makes use of the hall of mirrors to allow international legal discourses to obscure their origins and thrive in foundationlessness. The second image depicts a vulnerable international lawyer who is deprived of self-referential mechanisms for the production of international legal discourses because the mirrors have been shattered or the light turned off or simply because she has closed her eyes. The third image is that of a self-reflective international lawyer who is neither invincible nor vulnerable but consciously standing between the mutually reflecting mirrors wearing fissured spectacles and with no intention to smash the mirror, turn off the light or close her eyes. By developing these three distinct images, this article sheds light on how the contingency of legal doctrines, modes of legal reasoning and legal categories is experienced by international lawyers.

Keywords

belief systemcritical theoryFoucaultinternational legal theorymodernity

Information

Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 32 , Issue 3 , September 2019 , pp. 367 - 381
Copyright
© Foundation of the Leiden Journal of International Law 2019 

1. Introduction

Whoever walks between mutually reflecting mirrors is likely to feel dispossessed of one’s own image. In fact, as a result of mirrors’ reflection of one another, the movement or posture of whoever is caught between mirrors comes to permeate the whole space and acquire a life of its own, independently of where the object of reflection is located. This very feeling of dispossession of one’s movement or posture has been instrumental in the popularization of halls of mirrors for entertainment purposes around the world.Footnote 1 This banal idea of a hall of mirrors and its mutually reflecting mirrors, when applied to international legal discourses, allows this article to produce three distinct images of the international lawyer.

According to the first image, whoever engages in the making of international legal discourses can be seen standing in a hall of mirrors where legal arguments are produced at whim within some key mutually reflecting doctrines.Footnote 2 In this hall of mirrors, the severance of an argumentative pattern from its origin by virtue of mutually reflecting doctrines makes international legal discourses possible. This image enables one to capture the conditions of possibility of international legal discourses and explains why, in the hall of mirrors, the international lawyer comes to feel invincible (Section 1). This image is, in the discussion that follows, succeeded by a second image – that of an international lawyer who cannot take advantage of the mutually reflecting mirrors of the hall of mirrors and feels vulnerable because the mirrors have been shattered or because the light has been turned off or simply because she has closed her eyes. This second image allows this article to extrapolate on the consequences of non-reflecting mirrors and, thus, the absence of mutually reflecting doctrines in international legal discourses (Section 2). This article introduces a third image, of a self-reflective international lawyer who is neither invincible nor vulnerable but stands consciously between the mutually reflecting mirrors of the hall of mirrors wearing fissured spectacles and with no intention to smash the mirrors, turn off the light, or cease to look at the mirrors (Section 3). This article ends with a few observations on the coexistence of these three international lawyers – the invincible, the vulnerable, and the self-reflective – standing together in the hall of mirrors, possibly not even seeing one another (Section 4).

By elaborating on these three distinct images of the international lawyer – the invincible, the vulnerable, and the self-reflective – this article seeks to elucidate some of the ways in which the contingency of legal doctrines, modes of legal reasoning and legal categories are experienced by international lawyers. In particular, these three distinct images contribute to refine non-necessitarian understandings of contemporary legal thought and practice while enabling reform of the way in which international lawyers’ categories of thought, speech and argumentation constitute (and intervene in the problems of) the world.Footnote 3

It must be acknowledged that the contingency of international law has already been extensively discussed in the literature.Footnote 4 Yet, this article, through the three distinct images developed here, specifically focuses on the fundamental doctrines of international legal discourses whose contingency has attracted less attention. The fundamental doctrines of international law, whose contingency is discussed here, refer to those organized clusters of modes of legal reasoning that are constantly deployed by international lawyers when they formulate international legal claims about the existence and extent of the rights and duties of actors subjected to international law and the consequences of breaches thereof.Footnote 5 Those fundamental doctrines of international law correspond to what is sometimes called in the literature ‘secondary rules’,Footnote 6 ‘sets of conventional disciplinary protocols of reasoning’,Footnote 7 argumentative ‘codes of conduct’,Footnote 8 ‘operative ideals’,Footnote 9 clusters of ‘topois’,Footnote 10 ‘common tropes-argument patterns’,Footnote 11 or ‘rules of legal art’.Footnote 12 They, thus, refer to doctrines like sources, interpretation, responsibility, personality, etc., and are distinct from those other doctrines that enunciate the standards of behaviour to which international actors recognized by international law are subjected and whose contingency have been discussed extensively. The metaphor of the hall of mirrors is exclusively used here in relation to the fundamental doctrines so understood.Footnote 13

A final introductory caveat is warranted. It should be made clear that the article does not have the ambition to position itself within any specific body of literature or a particular tradition, let alone to vindicate any of them. This article is agnostic as to how the reader should position herself and how the hall of mirrors should actually be approached. Such agnosticism manifests itself in the extent to which this article builds on a heterogenous body of – sometimes incommensurable – materials which it conveniently borrows punctual support from. This being said, and notwithstanding this agnosticism, the article comes with the declared ambition to bolster non-necessitarian sensibilities about international law while also enriching vocabularies through which the contingency of legal doctrines, modes of legal reasoning and legal categories is experienced.Footnote 14

2. The invincible international lawyer

This section projects the image of an invincible international lawyer. According to this image, the invincible international lawyer is the one who makes confident use of the mutually reflecting mirrors. This is why the metaphor must be unpacked here and a few illustrations of how the mutually reflecting mirrors operate in international legal discourses must be provided.Footnote 15

By virtue of the metaphor of the hall of mirrors, international legal discourses can be seen as being built around a series of self-referential mechanisms that are tantamount to self-reflecting mirrors. It is submitted in this section that the doctrines around which international legal discourses are articulated function as mutually reflecting mirrors and acquire a life of their own in need of no other justification than their reflection of one another. As a result, the process of producing international legal discourses comes to resemble a hall of mirrors where doctrines reflect one another without their origin or functioning being explained but through themselves.

At the heart of the hall of mirrors of international law, two specific mirrors stand out as the linchpins of the mutual reflection allowing modes of legal argument to be dispossessed of their origin and functioning: the doctrine of sources and the doctrine of interpretation. Sources and interpretation correspond to the two main pillars supporting the making of any international legal claim in the hall of mirrors. In fact, the doctrine of sources provides the criteria whereby the contours of the applicable law are determined (law-identification), whilst the doctrine of interpretation offers some guidance as to how the content of the applicable rules identified through the sources ought to be substantiated (content-determination).Footnote 16 Recognizing the law-ascertaining and content-determining roles of sources and interpretation is the first step that allows the image of the hall of mirrors and its mutually reflecting mirrors to take shape.

Once these two specific mirrors of the hall of mirrors have been distinguished, it is possible to show how the mutual reflection works and, more concretely, how the doctrine of sources and the doctrine of interpretation – around which all international legal discourses are articulated – refer to one another to explain their own origin and functioning. In the hall of mirrors, the origin of both doctrines is reduced to a matter governed by the doctrine of sources, whilst the functioning of both boils down to a matter of the doctrine of interpretation. In other words, the origin of both interpretation and sources can be reflected – and thus explained – in sources whilst the functioning of both sources and interpretation can be reflected – and thus explained – in the mirror of interpretation. With sources and interpretation dispossessed of their own origin and functioning, all the components of the mutual reflection at work in the hall of mirrors are thus in place. Both are caught in their own reflection, having acquired a life on their own, and bringing with them all the international legal discourses which are now produced in these doctrines’ terms.

For the international lawyer standing in the hall of mirrors, the effects of the mutually reflecting mirrors – that is, the doctrine of sources reflecting the doctrine of interpretation and the doctrine of interpretation reflecting the doctrine of sources – correspond to what is commonly called a self-referential mechanism. Such self-referentiality – which also requires that sourcesFootnote 17 and interpretationFootnote 18 be reduced to rulesFootnote 19 – is, thus, what allows the international lawyer in the hall of mirrors to think of the origin and the functioning of international law in the very terms of international law.

A few illustrations of how such mutual reflection works in doctrinal terms must be provided here. For instance, the international lawyer in the hall of mirrors subjects the doctrine of sources as expressed in Article 38 of the Statute of the International Court of Justice – a doctrine that is itself deemed customary international lawFootnote 20 – to an interpretive process governed by the doctrine of interpretation as it is formulated in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The international lawyer also traces the origin of the doctrine of interpretation to a process of law-making recognized by the doctrine of sources, as it constitutes, in her view, a set of rules of a customary nature.Footnote 21 The doctrine of sources being interpreted on the basis of the doctrine of interpretation and the doctrine of interpretation originating in a source recognized by the doctrine of sources, international legal discourses come to be produced though a sophisticated process of mutual reflection whereby the two linchpins of legal discourse have been dispossessed of their own origin, thereby allowing international legal discourses to be generated without any other consideration than their compliance with the accepted constraints produced by sources and interpretation.

It is submitted here that, in the hall of mirrors so described, the international lawyer comes to feel invincible.Footnote 22 In fact, the international lawyer cannot think of a better place to produce international legal discourses. In the hall of mirrors, the international lawyer can live immune from any justificatory demands on how practices and modes of legal reasoning came into existence and evolved.Footnote 23 The foundations of international law and all legal claims made in its name are tautologized in a way that ignores foundational theoretical and sociological debates. The effect of these mutually reflecting mirrors thus helps protect international legal discourse from disruptive questions concerning the plurality of interests, power, morality, and any other type of antagonisms. Sources and interpretation are de-historicized, as they are meant to have always been there,Footnote 24 allowing the international lawyer to close the past and focus only on the future.Footnote 25 Legal claims can be made freely and without exposing their authors to any justificatory demands as long as they are made within the mutually reflecting doctrines of international law.

The hall of mirrors not only protects the international lawyer from any foundational justificatory demands from outside.Footnote 26 It also limits the range of international legal controversies about which international legal discourses are produced to a rather modest list of issues, all translatable and intelligible in terms of sources and interpretation. Should a given matter be untranslatable and unintelligible in the very terms of the sources and interpretation, it becomes an alien fact that cannot be addressed through international legal discourses proper. In the hall of mirrors, the world of legal discourses is thus clearly delineated. In the hall of mirrors, the world is simply dualistic: international law and the rest.Footnote 27 The hall of mirrors and the mutually reflecting doctrines of sources and interpretation create a totality which draws everything into it, makes everything predictable, tolerates nothing outside its domain, translates everything in its own terms, even contradictions or revolutions.Footnote 28 Ultimately, any disagreement in the hall of mirrors can be reduced to questions of mechanics,Footnote 29 complexity is abolished, and the international argumentative scene flattened.Footnote 30 It is for these reasons, that, in the hall of mirrors, the international lawyer, protected from disruptive questions and confined to a predictable, dualistic, and flat world, feels invincible.Footnote 31

It is probably uncontroversial to claim that this invincible international lawyer, as she has been described here, is a product of the liberal thinking that accompanied and flourished with the Enlightenment. Indeed, the reduction of truth-making to a matter of induction from a meta-paradigm which is itself self-explained is characteristic of the type of liberal thought promoted by the Enlightenment.Footnote 32 It manifests what has also been called liberal legalism,Footnote 33 or, more simply, legalism.Footnote 34 In that sense, it seems fair to say that the hall of mirrors constitutes the very sophisticated offspring of liberal legal thought,Footnote 35 and that the invincible international lawyer in the hall of mirrors is a modern creature. The first image produced here is thus an image of modernity.Footnote 36

3. The vulnerable international lawyer

After depicting the image of an invincible international lawyer, the metaphor is now used to produce a second image, of a vulnerable international lawyer who is deprived of the self-referential mechanisms for the production of international legal discourses because the mirrors have been shattered, or the light turned off, or simply because she has ceased to look at the mirrors. This section starts by shedding light on three specific doctrinal consequences of the absence of mutually reflecting mirrors in the making of international legal discourses with a view to showing why such absence leaves the international lawyer vulnerable. It is submitted here that the absence of mutually reflecting mirrors brings about the dismantling of three specific tropes which permeate contemporary international legal discourses: the idea that sources and interpretation are themselves customary rules; the accepted histories of doctrines; and the idea that the application of sources and interpretation is itself an act of interpretation.

Firstly, the absence of mutually reflecting mirrors bears consequences for the way in which the international lawyer approaches the sources of international law and construes the origin and nature of the main doctrines of international law. As explained above, in the hall of mirrors, all the principal doctrines of international law (sources, interpretation, responsibility) are deemed to be translatable in terms of the sources of international law, and especially in terms of customary law. This means that the mutually reflecting mirrors obfuscate the multitude of individual and collective interventions in the design of the fundamental doctrines. In the hall of mirrors, the formation of the main doctrines of international law is simply ‘depersonified’ and reduced to the adoption of international instruments or customary law from which those doctrines are supposedly derived. In the absence of mutually reflecting mirrors, the doctrine of sources can no longer justify itself or justify the origin of other doctrines. Crucially this means that, once the mirrors cease to work and the doctrine of sources is no longer self-explained, the much-cherished last resort of customary law – itself already problematic according to the doctrine of sources itselfFootnote 37 – can no longer explain the origin and nature of the doctrine of interpretation and sources.Footnote 38 As a result, the manufacturing of the main doctrines of international law – including sources and interpretation – can no longer be equated to a top-down law-making processFootnote 39 recognizable through the doctrine of sources. Instead, in the absence of mutually reflecting mirrors, the emphasis turns to the interventionsFootnote 40 that shape the main doctrines which, according to this new image, can be seen as the product of interventions by a variety of powerful actors, be they courts, codifying bodies, or distinguished academics or influential activists. The effect of a dispossession of a single doctrine’s origin is discontinued and all the main doctrines of international law collapse into crude social conventions and argumentative practices whose development can hardly be reduced to treaty-making or customary law-making processes.

Secondly, the absence of mutually reflecting mirrors entails a dismantling of the common histories of the main doctrines of international law, while also exposing the imaginary genealogies on which international legal discourses are founded. It suffices to take two examples here: the doctrine of statehood and the doctrine of customary international law. The doctrine of statehood is commonly said to find its origin (or main manifestation) in the 1933 Montevideo Convention on Rights and Duties of States, which supposedly reflects customary international law. Yet, once the mirrors cease to mutually reflect one another, it is possible to offer a counter-history for the origin of the doctrine of statehood and see that it is only from the 1950 s and 1960 s onwards that one began to witness more regular contentions that the doctrine of statehood and the declaratory approach to recognition were derived from the 1933 Montevideo Convention.Footnote 41 Before that time, authors would either abstain from defining the state and the role of recognitionFootnote 42 or simply avoid attempts to design common ‘rules’ about the determination of statehood, limiting themselves to their own personal definitions without any ambition to universalize them.Footnote 43 In the 1930 s and 1940 s, the few authors who came up with their own definitions of what constitutes a state still did not feel any need to systematize a ‘doctrine’ of statehood.Footnote 44 The absence of mutually reflecting mirrors can thus help us see that the quest for the elaboration of a doctrine of statehood is the brainchild of the anxieties of the 1960 s and not the product of a law-making process started in the 1930 s. The doctrine of customary international law offers another illustration of the imaginary genealogies that are debunked in the absence of mutually reflecting mirrors. It is commonly held that the dual element variant of that doctrine is found in Article 38 of the Statute of the Permanent Court of International Justice,Footnote 45 this provision being continuously invoked as the repository of the two-element variant of the fundamental doctrine of custom.Footnote 46 Here too, however, in the absence of mutually reflecting mirrors, a counter-history can be provided and one can see that, although the two elements were not absent from international legal thought in the nineteenth and early twentieth centuries,Footnote 47 they are a judicial creation of the late 1920 s and not the product of the law-making process that led to the adoption of the Statute.Footnote 48 Article 38 can no longer be seen as the repository of the two-element approach to custom.Footnote 49

A third possible consequence of the absence of mutually reflecting mirrors must be mentioned. It pertains to the international lawyer’s understanding of the role and place of interpretation in the making of international legal discourses. As indicated above, in the hall of mirrors, the main doctrines of international law are derived either from international instruments whose membership to international law is explained through their sources or from customary international law (which is possibly codified). As a result, when these doctrines are applied, the international lawyer is supposed to engage in an exercise of interpretation of the instrument(s) containing or codifying them. That act of interpretation of the instrument that works as the repository of the doctrine concerned is itself supposed to be governed by the doctrine of interpretation which, in turn, is found in a formal instrument in need of interpretation. If the mutually reflecting mirrors cease to work, it is no longer possible to contend that, when applying the main doctrines of international law, what is being interpreted is the instrument wherein the main doctrine under interpretation is nested or codified. Thus, in the absence of mutually reflecting mirrors, the international lawyer realizes that, when applying the main doctrines of international law, she is not interpreting the international instrument from which she usually derives the doctrine. Instead, in the absence of mutually reflecting mirrors, the international lawyer exercises her interpretive craft in relation to the main doctrine itself – and thus in relation to the content of the modes of legal reasoning that this doctrine has put in place – irrespective of the formal repository where the doctrine is said to be located.Footnote 50

The foregoing has sketched out three possible concrete consequences of the absence of mutually reflecting mirrors for contemporary international legal discourses. It is acknowledged that the absence of mutually reflecting mirrors bears many more consequences. Yet, it is not the aim of this section to be exhaustive. The three assumptions within legal discourses that have been debunked provide ample material for the second image envisaged by this article. Indeed, the absence of mutually reflecting mirrors is not benign: why would the international lawyer argue in accordance with the dual element variant of customary law if such variant were not even a product of Article 38? Why would the international lawyer ever invoke the doctrine of statehood if the latter had no convincing basis and were nothing more than the expression of anxieties about the birth of new entities in the context of decolonization? Why would the international lawyer even abide by the modes of legal reasoning of sources and interpretation if these doctrines could no longer be justified in their own terms? How could the international lawyer justify her obedience to social conventions whose crude and violent origins have now been laid bare?

Amidst the shattered mirrors, or in the dark, or simply having her eyes closed, the international lawyer finds herself stripped of her usual justificatory apparatus. She experiences a severe existential questioning of the core modes of legal reasoning that she has been trained to deploy and respond to. In the absence of mutually reflecting mirrors, the international lawyer is vulnerable, astray, adrift, at a loss, and possibly incapable of producing legal discourses. This image of the vulnerable international lawyer in the hall of mirrors is, of course, not new. It corresponds, roughly speaking, to what Lyotard – way before many others – called ‘postmodernism’; that is, the state of loss of faith in the meta-paradigm around which disciplines are built and the truth is determined.Footnote 51 In that sense, the image of the vulnerable international lawyer in the hall of mirrors without mutually reflecting mirrors is an image of the postmodern condition.

4. The self-reflective international lawyer wearing fissured spectacles

This article has, so far, presented two images: one of an invincible international lawyer in the hall of mirrors and another of a vulnerable international lawyer deprived of self-referential mechanisms for the production of international legal discourses. At this stage, it is important to highlight that nothing in the preceding sections should be interpreted as meaning that the two images provided summarize the only two conditions available to the international lawyer. This third section presents a third image, of an international lawyer who, albeit standing in the hall of mirrors, feels neither invincible nor vulnerable.

We have been here before. The question of the possibility of an intermediate position between modern invincibility and postmodern vulnerability has been extensively discussed in philosophy and critical theory.Footnote 52 Legal scholarsFootnote 53 and international lawyersFootnote 54 alike have also given this debate some serious thought. Whilst the third image proposed here should certainly not be construed as an attempt to provide an exhaustive answer to what is probably one of the most contentious philosophical questions of the last few decades, the following is meant as a modest contribution to this debate with specific reference to international legal thought and practice. In particular, the image presented here supports the argument that there is space for a third condition, of the self-reflective international lawyer who has experienced both the invincibility and the vulnerability but who does not want to be reduced to either of them. The self-reflective international lawyer is understood here as the international lawyer who has come to appreciate that legal discourses are the product of mutually reflecting doctrines and who has also experienced the feeling of vulnerability that would follow the absence of mutually reflecting doctrines. For the sake of this third image, the self-reflective international lawyer is the international lawyer who consciously stands in the hall of mirrors wearing fissured spectacles, with no intention to smash the mirrors, turn off the light, or close her eyes.

As was said, the self-reflective international lawyer, having experienced both invincibility and vulnerability, cannot contemplate embracing either conditions. A return to either invincibility or vulnerability is no option. On the one hand, the self-reflective international lawyer, having experienced herself and her practices in the vandalized hall of mirrors, realizes that obediently walking back to the hall and the perpetuation of the mutually reflecting mirrors is no longer possible.Footnote 55 She understands that self-explanation and self-justification acknowledge and reinforce the need for explanation and justification rather than quench it.Footnote 56 Importantly, the self-reflective international lawyer has learnt from her experience of vulnerability that the modes of legal reasoning and the mutually reflecting mirrors of the hall of mirrors are contingentFootnote 57 and do not flow from any ‘necessity’.Footnote 58 But there is more that the self-reflective international lawyer has come to realize. In fact, the absence of mutually reflecting mirrors and its multiple consequences, as they have been described above, have been instrumental in the self-reflective international lawyer’s realization that the hall of mirrors comes with a hugely repressive apparatus. Indeed, after experiencing the vulnerability in the absence of mutually reflecting mirrors, the self-reflective international lawyer appreciates that, in the hall of mirrors, the space for imagination is dramatically restricted by form;Footnote 59 that one is constantly forced into choosing between ready-made interpretations;Footnote 60 that one constantly lives under the ‘soft terror’ of handling materials that are operative and translatable according to the main doctrines of international law;Footnote 61 that the perceived argumentative creativity felt by the international lawyer is part of a predictable and planned routine;Footnote 62 and that all the foregoing is achieved by virtue of a sort of violenceFootnote 63 that is masked at the moment it is exercisedFootnote 64 and in which she is complicit.Footnote 65 After experiencing the absence of mutually reflecting mirrors, the self-reflective international lawyer thus understands that the hall of mirrors was a gilded cage. She understands that, in the hall of mirrors, she was chained. For the self-reflective international lawyer, there is no return.

On the other hand, the self-reflective international lawyer cannot consider a return to the vulnerability that accompanies the absence of mutually reflecting mirrors. In fact, the self-reflective international lawyer realizes that smashing the mirrors, turning off the light or closing her eyes neither leads to any critical Eldorado nor brings about any emancipation or freedom.Footnote 66 Indeed, she understands that abandoning the benefits of mutually reflecting doctrines is no guarantee that she would not find herself caught by the very terms, categories and vocabularies that she is trying to critique, repudiate or emancipate.Footnote 67 The self-reflective international lawyer also feels that the mutually reflecting doctrines of the hall of mirrors do not completely eliminate any critical space and that the possibility to create new space for imagination and reinvent complexity under the repressive unity of sources and interpretation should not be underestimated.Footnote 68 Eventually, the self-reflective international lawyer appreciates the communicative virtues of these mutually reflecting doctrines and their being a pre-condition for argumentative practice.Footnote 69 For these reasons, the self-reflective international lawyer is of the opinion that the – conscious or unconscious – resignation of many of her peers to the mutually reflecting doctrines of the hall of mirrors cannot be ridiculed.Footnote 70

Unable to embrace either invincibility (and the repression that comes with it) or vulnerability (and the limited emancipation it offers), the self-reflective international lawyer is left with only one option: that of wearing fissured spectacles, with no intention to smash the mirrors, turn off the light, or close her eyes. The wearing of fissured spectacles is what allows the self-reflective international lawyer to be self-reflective; that is, to embrace neither invincibility nor vulnerability while preserving her capacity to be an international lawyer and engage in the production of international legal discourses.

The effects of the fissured spectacles of the self-reflective international lawyer can be described as follows. First, it is important to emphasize that the fissured spectacles do not distort the sight of the self-reflective international lawyer or make her view the hall of mirrors like an impressionist painter; if this were the case, the fissured spectacles would only be a problem-avoidance move and a retreat in denial. Neither do the spectacles enable her to look at the hall of mirrors by blinking one eye after the other; if this were the case, the fissured spectacles would only be a refuge in dialectics (which would simply reproduce the dualism of the hall of mirrors) or an attempt to live an easy life without taking a position on fundamentals.Footnote 71

The fissured spectacles simultaneously make the self-reflective international lawyer content with the impossibility of a universal answer. Seeing the hall of mirrors through her fissured spectacles, the international lawyer contends that there is no single truth to be discovered except that one gives to oneself or that one wants to impose on others.Footnote 72 Said differently, the spectacles, because they are fissured, disrupt the transcendence of international law and allows the self-reflective international lawyer to grasp the immanence of the political. For her, legal discourses are always the universalization of the interest they are meant to vindicate. The socially accepted modes of legal reasoning are the result of the interventions of certain powerful actors who have successfully dictated to others how to articulate legal discourses. In that sense, the fissured spectacles allow the self-reflective international lawyer to appreciate the dialogues, the agendas, the politics, the hegemony, the racial discrimination, the gender biases, the oppression, the search for progress and justice, etc.Footnote 73

At the same time, the fissured spectacles make the international lawyer more tolerant to incommensurability and pluralismFootnote 74 without simultaneously making her veer into utter pessimism and scepticism about the possibility of a common language and a unitary discipline.Footnote 75 The fissured spectacles preserve the communicative virtues of the mutually reflecting doctrines as well as the very possibility of producing international legal discourses between the mutually reflective mirrors of the hall of mirrors.

The foregoing should suffice to demonstrate that the self-reflective international lawyer certainly does not lament the fissures in her spectacles. The fissures in her spectacles provide the very conditions of her freedom; that is, the freedom to translate through international legal discourses what she wishes to translate, as well as the freedom to fight the battles that she finds worthy of a fight through international legal discourses. In other words, her fissured spectacles constitute her chance to unchain herself from self-referentiality and the dualism of the world that comes with the hall of mirrors without debilitating her capacity to produce international legal discourses and intervene in the problems of the world. The freedom encapsulated in the fissured spectacles is also that of engaging in the production of international legal discourses to vindicate the interests that she deems worth vindicating through the mutually reflecting mirrors of the hall of mirrors.

It is argued here that, far from being unattainable, the condition of the self-reflective international lawyer, who wears fissured spectacles with no intention to smash the mirrors, turn off the light, or close her eyes, is within reach. It actually takes no more than experiencing the two conditions represented by the two images depicted in the two previous sections, i.e., that of the invincible international lawyer and that of the vulnerable international lawyer. In fact, the self-reflective international lawyer finds her spectacles fissured by the very experience of both such conditions. Experiencing the conditions of invincibility and vulnerability is what has fissured her glasses and made her self-reflective.

5. Concluding remarks: Three international lawyers in a hall of mirrors

These concluding remarks are the point where this article abandons the singular form and speaks of international lawyers in the plural. Indeed, the time has come to speak of the three abovementioned international lawyers – the invincible international lawyer, the vulnerable international lawyer, and the self-reflective international lawyer – standing in the hall of mirrors at the same time. This article, thus, ends with a fourth image; that is, one that combines the previous three. Of all the images presented in this article, this fourth image is probably the least stereotyped. After all, international legal thought and practice are simultaneously populated by invincible, vulnerable, and self-reflective international lawyers who, throughout their careers, move between these distinct conditions. In that sense, this fourth image of the invincible international lawyer, the vulnerable international lawyer, and the self-reflective international lawyer meeting together in the hall of mirrors is not a purely aesthetic construction meant to wrap up this heuristic exercise with a stylish touch. It serves as a reminder that international lawyers coexist with other international lawyers of distinct conditions and that their condition is bound to be dynamic.

It must be emphasized that this image of these three international lawyers standing together in the hall of mirrors does not necessarily entail an image of an interaction between them. In fact, despite standing side by side in the hall of mirrors, they may not even see each other or note each other’s presence. For instance, the vulnerable international lawyer may no longer see the invincible international lawyer that she once was, as she sees only a devasted place with broken glass, a dark room, or just the walls of the hall of mirrors. The invincible international lawyer may not read any literature that would question the hall of mirrors and may simply ignore the existence of a strand of scholarship that suffers from a postmodern condition. The self-reflective international lawyer may have forgotten how it feels to be invincible and vulnerable and therefore may no longer be able to recognize such conditions when experienced by others.

And yet, the possibility of eye contacts between these three international lawyers standing together in the hall of mirrors – or the possibility of an international lawyer’s introspecting about her own conscious move between these positions – should not be entirely excluded. When such eye contact or comparative introspections happen, the incommensurability between each of these three approaches to the mutually reflecting mirrors of the hall of mirrors – and the contrast between the three images produced here – are laid bare. When eye contact or comparative introspections occur, many scenarios can be envisaged. For instance, the invincible international lawyer can come to think of the vulnerable international lawyer as a vulgar social scientist mired in nihilism and whose pains are self-inflicted; the invincible international lawyer can come to think of the self-reflective international lawyer as just a variant of the vulnerable international lawyer, or as a vulnerable international lawyer in denial; the vulnerable international lawyer can come to think that the invincible international lawyer is a dogmatic believer stuck in a hamster wheel; the vulnerable international lawyer can come to think of the self-reflective international lawyer as just another modernist idealist who uses postmodern vocabulary to hide her own attachment to forms, unity, and universality; the self-reflective international lawyer can come to think of the invincible international lawyer as a non-reflective figure, averse to theory; the self-reflective international lawyer, while occasionally taking the vulnerable international lawyer as a role model in terms of disruption of modern dogmatism and self-referentiality, can come to look down at the vulnerable international lawyer’s repudiation of the search for truth or unity as a form of pragmatic problem-avoidance posture and the manifestation of a tendency to leave business unfinished.

In the end, whether international lawyers feel invincible, vulnerable, or self-reflective according to the three images provided in this article, the hall of mirrors is the place where they all stand, do their job, spend their days (and possibly their nights), produce legal discourses, intervene in the problems of the world or criticize those who do so, feel pride, experience a lack of self-esteem, praise or despise one another, hope for a better world or give up those hopes, search for truth or abandon truth-searching, etc. In that sense, the hall of mirrors is the home of international lawyers.Footnote 76 But, as has been foregrounded by the three images developed here, the hall of mirrors is their home but not their fate.Footnote 77 Once international lawyers realize that the hall of mirrors is their home and not their fate, they are in a position to acknowledge and maximize their many freedoms: the freedom to stay; the freedom to leave; the freedom to dismantle; to freedom to reform; the freedom to leave, explore different worlds, and return; or the freedom to decide later.

Author ORCIDs

Jean d’Aspremont 0000-0002-0121-2334

Footnotes

*

The author wishes to thank Fen Greatley-Hirsch for his assistance. The usual caveat applies.

References

1 It is the same feeling of dispossession of one’s image and the impression of one’s image being severed from its subject that informed the popularization, for entertainment purposes, of houses of mirrors, which, according to a common urban legend, are said to have been created by Peter Stuyvesant after he visited the Versailles Hall of Mirrors. This common story is highly contested, as Peter Stuyvesant died in 1672 – that is, before construction of the first house of mirrors in 1678. See M. Pollak, ‘Peter Stuyvesant and the Fun-House Mirrors’, New York Times, 31 January 2016, MB4.

2 In that sense there is certainly a nice – albeit probably accidental – coincidence that the most famous hall of mirrors of all, namely the Hall of Mirrors of the Palace of Versailles, has been repeatedly used on the cover of international law books. Indeed, the famous painting by William Orper,‘The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919’, Imperial War Museum, available at www.iwm.org.uk/collections/item/object/20780, has been regularly reproduced on the cover of international law books. For a recent example see C. Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (2008). On the use of paintings in international law books see J. d’Aspremont and E. De Brabandere, ‘Paintings of International Law’, in J. Hohmann and D. Joyce (eds.), International Law’s Objects: Emergence, Encounter and Erasure through Object and Image (2018), 330.

3 On the gains and merits of thinking in terms of contingency of law and legal institutions see generally R. Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (2001).

4 For some remarks see I. Venzke, ‘What If? Counterfactual (Hi)Stories of International Law’, (2018) 8 Asian Journal of International Law 403.

5 For a useful overview of the various uses of the notion of ‘doctrine’ see T. Skouteris, The Notion of Progress in International Law Discourse (2010), 94–5.

6 See generally H. L. A. Hart, The Concept of Law (1994), at 94–5, 110–12.

7 A. Rasulov, ‘The Doctrine of Sources in the Discourses of the Permanent Court of International Justice’, in C. J. Tams and M. Fitzmaurice (eds.), Legacies of the Permanent Court of International Justice (2013), 271, at 272.

8 Shklar, J. N., Legalism (1964), 1.Google Scholar

9 Ibid.

10 See F. V. Kratochwil, Rules, Norms, and Decisions (1989), 38.

11 See A. Rasuov, ‘Writing About Empire: Remarks on the Logic of a Discourse’, (2010) 23 Leiden Journal of International Law 449, at 460.

12 Stone, J., Legal System and Lawyers’ Reasonings (1968), 23 Google Scholar.

13 For a different use of the idea of hall of mirrors see P. Schlag, ‘Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction’, (1988) 40 Stanford Law Review 929.

14 This is a point I owe to one of the anonymous reviewers.

15 The discussion that follows is restricted to a limited sample of international legal discourses, namely those found in Western Anglo-American scholarship. As a result, it does not prejudge anything about the structure of international legal discourses in other parts of the world.

16 On this distinction see G. J. Postema, Legal Philosophy in the Twentieth Century: The Common Law World (2001), 390–3; R. Dworkin, Law’s Empire (1986). See also A. Anaya, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (2015); J. d’Aspremont, ‘Sources in Legal Formalist Theories: The Poor Vehicle of Legal Forms’, in S. Besson and J. d’Aspremont (eds.), Oxford Handbook on the Sources of International Law (2017), 365.

17 There are, of course, huge jurisprudential problems with the idea of ‘rule-ness’. See generally C. R. Sunstein, Leal Reasoning and Political Conflict (1996), 130–5. In particular, the ‘rule-ness’ of the ‘rule of recognition’ is contested. See F. Schauer, Playing by the Rules (1991), 199; see also F. Schauer, ‘Amending the Presuppositions of a Constitution’, in S. Levinson (ed.), Responding to Imperfection (1995), 145, at 150–1; F. Schauer, ‘Is the Rule of Recognition A Rule?’, (2012) 3 Transnational Legal Theory 1; A. W. B. Simpson, ‘The Common Law and Legal Theory’, in A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence (1973), 77. The authority or ‘rule-ness’ of the constraints on interpretation is equally contested. If construed as rules by the mainstream international legal scholarship, such constraints on content-determination interpretation correspond to what Fiss calls ‘disciplining rules’, see O. Fiss, ‘Objectivity and Interpretation’, (1982) 34 Stanford Law Review 739. See, contra, S. Fish, ‘Fish v. Fiss’, (1984) 36 Stanford Law Review 1325, at 1336; On the specific problem of infinite regress associated with rule-ness, see I. Venzke, ‘Post-Modern Perspectives on Orthodox Positivism’, in J. Kammerhofer and J. d’Aspremont, International Legal Positivism in a Post-Modern World (2014), 182; see also G. Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, (2010) 21 European Journal of International Law 509, at 534; F. Zarbiyev, Le discours interprétatif en droit international contemporain (2015), 28–35; A. Bianchi, ‘The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle’, in A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (2015), 34, at 35–6.

18 Whilst this seems self-evident today, this has not always been the case. In this respect, it is worth recalling the doubts expressed by some of the drafters of the Vienna Convention on the Law of Treaties. See ILC, ‘726th Meeting’, 1964 YILC, Vol. I, 20–1, para. 15; see also J. Klabbers, ‘Virtuous Interpretation’, in M. Fitzmaurice et al. (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (2010), 17, at 17–18. On these earlier doubts in the codification of rules on interpretation, see F. Zarbiyev, supra note 17, at 23–8;

19 For a similar reading of the mainstream scholarship see A. Bianchi, ‘Textual Interpretation and (International) Law Reading: The Myth of (in)Determinacy and the Genealogy of Meaning’, in P. Bekker (ed.), Making Transnational Law Work in the Global Economy – Essays in Honour of Detlev Vagts (2010), 34, at 35: ‘current reflection of mainstream international legal scholarship remains imbued with traditional rule-based approaches to legal interpretation’; see also Zarbiyev, supra note 17, at 23–35.

20 A few examples can be provided here: see J. Brierly, ‘The Basis of Obligation in International Law’, in H. Lauterpacht and C. H. M. Waldock (eds.), The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly (1959), 1, at 10; P Guggenheim, Traité de droit international public (1953), 6–8; P. Weil, ‘Le droit international en quête de son identité – cours général de droit international public’, (1992) 237 Recueil des cours 131; A. D’Amato, ‘The Concept Of Special Custom In International Law’, (1969) 63 American Journal of International Law 211; T. Nardin, Law, Morality and the Relations of States (1983), 172. The same idea of ‘rule-ness’ also imbues those commonly heard statements that Art. 38 is declaratory of general international law, see A. Pellet, ‘Article 38’, in A. Zimmermann et al. (eds.), The Statute Of the International Court of Justice: A Commentary (2012), 750; G. Abi-Saab, ‘Les sources du droit international: essai de déconstruction’, in M. R. Montaldo and E. J. de Aréchaga (eds.), Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga (1994), 29–49; D. J. Bederman, Custom as a Source of Law (2010), 137. It is noteworthy that Michael Wood uses quotation marks when he refers to the rules for the formation of customary international law, see M. Wood, ‘What Is Public International Law? The Need for Clarity about Sources’, (2011) 1 Asian Journal of International Law 205, at 213.

21 In fact, most of the studies produced on the interpretation of treaties in recent years construe the doctrine of interpretation as a set of rules found in the 1969 and 1986 Vienna Conventions on the Law of Treaties. For a review of recent works on interpretation see M. Waibel, ‘Demystifying the Art of Interpretation’, (2011) 22 European Journal of International Law 571; see also the works cited by A. Bianchi, D. Peat and M. R. Windsor (eds.), Interpretation in International Law (2015); for an approach that construes rules on interpretation as guiding principles or directives see I. Van Damme, Treaty Interpretation by the WTO Appellate Body (2009), 35. International courts and tribunals have endorsed a similar position. Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Merits, Judgment of 3 February 1994, [1994] ICJ Rep. 6, para. 6; Kasikili/Sedudu Island (Botswana v. Namibia), Merits, Judgment of 13 December 1999, [1999] ICJ Rep. 1045, at 1059; LaGrand Case (Germany v. United States of America, Merits, Judgment of 27 June 2001, [2001] ICJ Rep. 466, at 501, para. 99; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, para. 94; see also Award in the Arbitration regarding the Iron Rhine Railway (Belgium/Netherlands) (2005) 27 RIAA 35 62, para. 45; Appellate Body, Japan – Alcoholic Beverages, II WT/DS8,10-11/AB/R (1996), Part D, 10–12; WTO AB Report, United States – Standards for Reformulated and Conventional Gasoline WT/DS2/AB/R) (1996), 16–17; Golder v. United Kingdom (App. No. 4451/70) (EctHR, 21 February 1975), para. 32.

22 On the idea that this sort of attitude does not come with any hypocrisy or bad faith see J. Frank, Law and the Modern Mind (2009), at 10, 94–5 (comparing the world of lawyers to children’s magic world).

23 That self-referentiality is used to evade evidentiary questions is something found in myths too. See F. Ost, Raconter la loi: aux Sources de l’imaginaire juridique (2004), 77–81.

24 In that sense too, the hall of mirrors performs the same function as myths. See R. Barthes, Mythologies (1957), 252. In the same vein see H. White, Metahistory: The Historical Imagination in 19th-Century Europe (2014), 51. See also M. Foucault, L’archéologie du savoir (1969), 14: ‘le document était toujours traité comme le langage d’une voix maintenant réduite au silence’.

25 See generally P. Sloterdijk, Après nous le déluge (2016) (for whom the self-referentiality of modernity is what supports modernity’s futurism and anti-genealogism).

26 On the idea of legalism as a surrender outside the context of the sources of international law see G. Simpson, ‘On the Magic Mountain: Teaching Public International Law’, (1999) 10 European Journal of International Law 70, at 76.

27 This dualism unsurprisingly forces international lawyers to create hybrid constructions like Soft Law, which reinforces the duality rather than contests it. On this question see P. Schlag, ‘The De-Differentiation Problem’, (2009) 41 Continental Philosophy Review 35.

28 T. W. Adorno and M. Horkheimer, Dialectic of Enlightenment (1997), 24; T. W. Adorno, Negative Dialectics (1973). On this aspect of Adorno’s work see also the remarks of F. Jameson, Late Marxism: Adorno or the Persistence of the Dialectic (2007), at 20–1, 25–34. See also M. Foucault, supra note 24, at 23, 205.

29 Bourdieu, Cf. P., ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805, at 849 Google Scholar.

30 M. Foucault, supra note 24, at 254.

31 Latour, B., Nous n’avons jamais été modernes: essai d’anthropologie symétrique (1997), 57, at 59 Google Scholar.

32 Jean-François Lyotard, La condition postmoderne (1979), 13, at 59. See also T. W. Adorno and M. Horkheimer, supra note 28, at 7; K. Jenkins, Re-thinking History (2003), 82; P. Schlag, ‘The Empty Circles of Liberal Justification’, (1997) 96 Michigan Law Review 19–20; P. Sloterdijk, supra note 25, at 59, 63.

33 F. Hoffman, ‘International Legalism and International Politics’, in A. Orford and F. Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (2016), 961. For a different use of liberalism in international legal thought by reference to a certain configuration of the international society as a collection of liberal democracies see D. Joyce, ‘Liberal Internationalism’, in Orford and Hoffmann, ibid., 471.

34 J. N. Shklar, supra note 8, at viii, 1–28.

35 Liberal patterns of legal reasoning in international legal thought and practice have been the object of thorough studies it is of no avail to return to it her. See, generally, M. Koskenniemi, From Apology to Utopia – The Structure of International Legal Argument (2006); see also M. Koskenniemi, ‘The Politics of International Law’, (1990) 1 European Journal of International Law 4, at 5–7.

36 Liberal patterns of legal reasoning in international legal thought and practice have been the object of thorough studies; it is of no avail to return to it here. See, generally, M. Koskenniemi (2006), supra note 35; see also M. Koskenniemi (1990), supra note 35.

37 For instance, the customary character of the doctrine of interpretation could be challenged from the very perspective of the doctrine of sources of international law. Indeed, if the doctrine of customary international law is conventionally applied, it is not at all certain that the constraints on interpretation of international law meet the traditional requirements for the identification of customary rules. First, it seems that the practice is mostly that of authoritative judicial bodies in their own right. It is true that some of them constitute organs of international organizations. Yet, it is not clear that such a practice qualifies as one attributable to subjects of international law for the sake of customary law formation. Second, it is not obvious that the ‘anthropomorphic’ requirement of opinio juris can ever be extracted from the attitude of those international courts and tribunals that have been applying – albeit religiously – the rules on interpretation. Thirdly, it is not certain that those rules on interpretation could ever pass the elementary ‘Continental Shelf’ test whereby any potential standard is required to be of a ‘fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law’ to ever generate customary law, see North Sea Continental Shelf Case (Germany v. Denmark), Merits, Judgment of 20 February 1969, [1969] ICJ Rep. 3, para. 72; see also Asylum (Colombia/Peru), Merits, Judgment of 20 November 1950, [1950] ICJ Rep. 266, para. 277; in this respect, it does not seem controversial to say that the rules on interpretation do not dictate any specific behaviour to states and international organizations. Moreover, the specific interpretive constraints they put forward remain rather loose and vague. For all these reasons, it seems implausible that the unanimous claims about the customary status of the interpretive constraints found in the VCLT would ever survive a careful application of the orthodox doctrine of customary law.

38 In the same vein see J. d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’, (2014) 84 British Yearbook of International Law 103.

39 For a critical review of the literature on international law-making see J. d’Aspremont, ‘Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship’, (2009) 46 Vanderbilt Journal of Transnational Law 1119.

40 It is well-known that for Carl Schmitt, the making of concepts such as sovereignty or community originated in a genesis that witnessed an arbitrary intervention ex nihilo. See C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1985), 38.

41 Jessup, P., A Modern Law of Nations: An Introduction (1956), 43;Google ScholarMugerwa, N. ‘Subjects of International Law’, in Sørensen, M. (ed.), Manual of Public International Law (1968), 250;Google ScholarO’Connell, D. P., International Law (1970), 284;Google ScholarO’Connell, D. P., International Law for Students (1971), 120 Google Scholar.

42 See, e.g., J. Lorimer, Principes de droit international (1884).

43 See, e.g., T. D. Woolsey, International Law (1877), 49; H. Wheaton. Elements of International Law (1836), 62; F. von Martens, Traité de droit international (1883), 273; T. J. Lawrence, The Principles of International Law (1923), 48; W. E. Hall, A Treatise on International Law (1890), 18.

44 See, e.g., L. Le Fur, Précis de droit international public, (1937), 64; H. Lauterpacht, Recognition in International Law (1947), 26; for a different reading see Grant, who claims that the references to Montevideo to articulate claims on statehood and recognition started in the 1940 s – T. D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, (1999) 37 Columbia Journal of Transnational Law, 403, at 414; see also the declaration of the United Kingdom of 24 August 1948, reproduced in ILC, ‘Preparatory study concerning a Draft Declaration on the Rights and Duties of States – Memorandum submitted by the Secretary General on Fundamental Rights and Duties of States’, UN Doc. A/CN.4/2, 15 December 1948, 185–6 (according to which there is no accepted definition).

45 See the text of the draft conclusions on identification of customary international law adopted by the Commission on first reading, ILC, ‘Draft report: Chapter V – Identification of Customary International Law’, 68th session’, UN Doc. A/CN.4/L.883/Add.1, 2016. See also ILC, ‘Third report on the identification of customary international law’, UN Doc. A/CN.4/682, 27 March 2015, para. 15. The claim of a fragmentation of the doctrine of customary law has been rejected by the International Law Commission which has continued to see unity in the practice: ILC, ‘First Report of the Special Rapporteur, Sir Michael Wood’, 65th session, A/CN.4/663, 17 May 2013, para. 19: unity – no fragmentation. See also ILC, ‘Second Report on Identification of Customary International Law by the Special Rapporteur Michael Wood’, UN Doc. A/CN.4/672, 22 May 2014, para. 28. Only a difference in interpretation and application (second report, para. 28).

46 See, e.g., D. J. Bederman, Custom as a Source of Law (2010), 135, 137, 166 (at page 137 he writes that custom ‘involves a searching analysis of what has been taken as a canonical set of elements for the proof of any customary international law norm: ICJ Statute Article 38’s requirements of a “general practice” of states, which is “accepted as law”’). In the same vein, A. Pellet, ‘Article 38’, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice (2002), 813. For some examples see M. H. Mendelson, ‘The Formation of Customary International Law’, (1998) 272 Collected Courses of the Hague Academy on International Law 159, at 187; I. Brownlie, Principles of Public International Law (2003), 6; A. Cassese, International Law (2005), 156.

47 Alphonse Rivier is credited with the first use of the modern concept of opinio juris as an essential element of custom. See A Rivier, Principes du droit des gens (1896), 35. For a recognition of such paternity see A. Carty, Philosophy of International Law (2007), 50.

48 In the same vein, C. Tams, ‘Meta-Custom and the Court: A Study in Judicial Law-Making’, (2015) 14 Law and Practice of International Courts and Tribunals 51, at 54–7.

49 A. Pellet, supra note 46.

50 On the idea that the tradition is constantly interpreted and changed see A. MacIntyre, Whose Justice? Which Rationality? (1988), 359–65.

51 J.-F. Lyotard, supra note 32, at 7–8.

52 R. Rorty, Consequences of Pragmatism, (2011), 166; T. W. Adorno and M. Horkheimer, supra note 28; J.-F. Lyotard, supra note 32; E. Laclau, Emancipation(s) (2007); P. Sloterdijk, Critique of Cynical Reason (1988).

53 P. Schlag, supra note 32; D. Kennedy, The Rise and Fall of Classical Legal Thought (1998); M. Foucault, ‘Qu’est-ce que les Lumières?’, in P. Rabinow (ed.), The Foucault Reader (1984), 32.

54 See M. Koskenniemi’s famous plea for a culture of formalism: The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002), 502–9. M. Koskenniemi, ‘What is International Law For?’, in M. Evans (ed.), International Law, (2006), 57, at 69–70. See also M. Koskenniemi and C. Schmitt, ‘Hans Morgenthau and the Image of Law in International Relations’, in M. Byers (ed.) The Role of Law in International Politics: Essays in International Relations and International Law (2000), 17, at 32–3. For an illustration of the debate that this notion has brought about see, among others, E. Jouannet, ‘Présentation critique’, in M. Koskenniemi, La Politique du droit international (2007), 7, at 32–3. See also I. de la Rasilla del Moral, ‘Martti Koskenniemi and The Spirit of the Beehive in International Law’, (2010) 10 Global Jurist; J. von Bernstorff, ‘Sisyphus was an International Lawyer: On Martti Koskenniemi’s “From Apologia to Utopia” and the Place of Law in International Politics’, (2006) 7 German Law Journal 1015, at 1029–31; J. A. Beckett, ‘Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project’, (2006) 7 German Law Review 1045; see also the book review of M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002) by N. Tsagourias, ‘BOOK REVIEWS – Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960’, (2003) 16 Leiden Journal of International Law 397, at 398–9.

55 Compare with R. Unger, The Critical Legal Studies Movement (2015), 119 (who speaks of a priesthood that had lost their faith and kept their job).

56 P. Schlag, supra note 32, at 8.

57 Emphasizing the contingency of law is one of the virtues of counter-factual thinking as promoted by Ingo Venzke; see Venzke, supra note 4.

58 See generally R. Unger, supra note 3.

59 H. White, Tropics of Discourse: Essays in Cultural Criticism (1978), 126–7. On the idea that form is the substance in modern legal thought see P. Schlag, supra note 32. See also P. Schlag, supra note 13, at 959.

60 As Pierre Schlag has argued, lawyers are constantly called upon to choose between interpretations, even at the level of their modes of legal reasoning. This is why, he explains, lawyers are not free. See P. Schlag, ‘Normativity and the Politics of Form’, (1991) 139 University of Pennsylvania Law Review 801, at 807.

61 J.-F. Lyotard, supra note 32, at 8.

62 Schlag, P., ‘Normative and Nowhere to Go’, (1990) 43 Stanford Law Review, 167 CrossRefGoogle Scholar, at 180–1.

63 Derrida famously understands law as being mystical by reference to ‘a silence walled up in the violent structure of the founding acts’. He adds ‘the founding or grounding, the positing of the law cannot by definition rest on anything but themselves, they are themselves a violence without ground’. See J. Derrida, ‘Force of law – the “Mystical Foundation of Authority”’, in G. Anidjar (ed.), Acts of Religion – Jacques Derrida (2002), 242. Pierre Bourdieu sees a form of violence in the formalism of law; for him, to submit to the power of form is to submit to ‘the symbolic violence’. C. Miéville, Between Equal Rights. A Marxist Theory of International Law (2005), 286; A. Anghie, Imperialism, Sovereignty and the Making of International Law (2004), 6. See also P. Schlag, Laying Down the Law (1996), 147. Cf. the notion of symbolic violence developed by Bourdieu: See P. Bourdieu and L. Wacquant, An Invitation to Reflexive Sociology 1992), 15; P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805, at 850. See the remarks of J. D. Schubert, ‘Suffering/Symbolic Violence’, in M. Grenfell (ed.), Pierre Bourdieu – Key Concepts (2012), 179–94.

64 P. Schlag, supra note 63, at 146.

65 See P. Bourdieu, ‘Force of Law’, supra note 63, at 844. See also M. Foucault, Surveiller et punir (1975), 35.

66 J.-F. Lyotard, supra note 32, at 707; B. Latour, supra note 31, at 70, 83.

67 This finding is widely supported and documented in philosophy and critical theory. For instance, such confinement is what Barthes famously identified as the ‘tragedy’ of writing (R. Barthes, Le degré zéro de l’écriture (1972), 66), which, he says, permeates any revolutionary move (ibid., at 67). In the same vein, Hannah Arendt has convincingly shown how revolutionaries constantly reclaim/seize upon a faraway past with a view to justifying the uniqueness of their revolutionary moment and their rupture with a more immediate past (see the critical remarks of H. Arendt, On Violence (1970)). In the context of critical historiography, Hayden White has more specifically demonstrated how every discipline is made up of (and organized around) a set of restrictions on thoughts and imagination that inevitably repress imagination (H. White, supra note 59, at 126–7). This is a contention that has also been articulated by Alasdair MacIntyre (A. MacIntyre, After Virtue: A Study in Moral Theory (2007)). Judith Butler has similarly shown us that the performativity of any critical performance in the present is always dependent on the mobilization of a certain past and of a normative heritage (J. Butler, ‘Critically Queer’, (1993) 1 GLQ: A Journal of Lesbian and Gay Studies 17, at 24). The finding of such a confinement of critique to the categories and vocabularies of its object is found in critical legal literature too: P. Schlag,‘“Le hors de texte, c’est moi”: The Politics of Form and the Domestication of Deconstruction’, (1990) 11 Cardozo Law Review 1631; M. Xifaras, ‘Qu’est-ce que la critique?’ (on file with the author).

68 B. Latour, supra note 31, at 83 ; M. Xifaras, ‘Qu’est-ce que la critique?’ (on file with the author). This is also a charge occasionally made against critical legal thinking which has frequently overstated the novelty of its work. In this respect see S. Marks, ‘False Contingency’, (2009) 62 Current Legal Problems 1. See also F. Johns, ‘Critical International Legal Theory’, in J. Dunoff and M. Pollack (eds.), International Legal Theory: Foundations and Frontiers (forthcoming), also available as University of New South Wales Law Research Series Paper No. 18-44, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=3224013.

69 On the idea that international legal discourses are always continued despite all the problems associated with international law and the perpetual feeling of crisis see F. V. Kratochwil, supra note 10, at 12; C. Reus-Smit, ‘The politics of International Law’, in C. Reus-Smit (ed.), The Politics of International Law (2004), 23; E. Laclau, Emancipation(s) (2007), 103.

70 Compare with J. Frank, supra note 22, at 127 (‘If an illusion helps men live, if by acting on an erroneous dogma, men arrive at valuable results, for the most part unmixed with evil, then to insist upon exposing the falsity of the illusion or dogma is at best pedantry or bad manners and at worst malicious mischief or sadistic morbidity. If then the illusion or dogma of legal certainty were essentially useful, to attack it would be inexcusable, regardless of its patent deviation from reality.’).

71 B. Latour, supra note 31, at 77.

72 This is the common charge of Rorty against Foucault, Derrida and White, who have continued Nietszche’s abandonment of the search for truth and an Archimedean standpoint. Rorty considers their position to be the expression of pragmatism. See R. Rorty, supra note 52, at 150–1.

73 See M. Foucault, supra note 24, at 39: ‘Ces formes préalables de continuité, toutes ces synthèses qu’on ne problématise pas et qu’on laisse valoir de plein droit, il faut donc les tenir en suspens. Non point, certes, les récuser définitivement, mais secouer la quiétude avec laquelle on les accepte ; montrer qu’elles ne vont pas de soi, qu’elles sont toujours l’effet d’une construction dont il s’agit de connaître les règles et de contrôler les justifications …’

74 J.-F. Lyotard, supra note 32, at 8–9.

75 On the pessimism that can come with the postmodern condition, see ibid., 65–8.

76 See the story about life in a hall of mirrors written by Hirai Taro under the pseudonym Edogawa Rampo, translated into English under the title ‘Hell of Mirrors’, in E. Rampo, Japanese Tales of Mystery & Imagination (1956), and republished in E. Rampo, The Edgar Allan Poe of Japan – Some Tales by Edogawa Rampo – With Some Stories Inspired by His Writings (2011).

77 See generally R. Unger, supra note 3. See also M. Foucault, supra note 24, at 39–43.