I. Enchantment: 1960 to 2000

The 1960s was a time of massive cultural change in the secular West. The truths of earlier generations—their patriotism, their legalism, and their Cold War spirit—became old hat. Wolfgang Friedmann's 1964 book The Changing Structures of International Law provides a wonderfully perceptive account of that moment. Sketching what he called a move from co-existence to cooperation, Friedmann used the vocabulary of interdependence and expansion to stress the fundamentally international nature of that moment: technological progress, environment, trade, development: “… beside the level of interstate relations of a diplomatic character there develops a new and constantly expanding area of co-operative international relations.” He imagined that the European Communities might be seen as “a possible precursor of a future integration of mankind.”Footnote ¹² “[T]he national state,” Friedmann wrote, “and its symbol, national sovereignty, are becoming increasingly inadequate to meet the needs of our time.”Footnote ¹³ The 1960s was tough on the traditional values, national, religious, agrarian, bourgeois. It appreciated plurality and individualism:

“Even against his own state”—it was not surprising that a refugee from Germany would make this point. But many other international lawyers followed suit, and not only in the United States.

Now flash forward to the 1990s: the end of the Cold War, the emergence of the European Union, intensification of international cooperation in trade, development, environment technology, resource management, even democracy— all of such developments outlined and celebrated by Thomas Franck from New York University in 1998.Footnote ¹⁵ Analysts everywhere began to write about a “New World Order” that could include anything from cooperation between the judicial branches of different countries, to humanitarian intervention, from supranational environmental regulation to the establishment of an International Criminal Court.Footnote ¹⁶ With the WTO, regulatory focus shifted from customs tariffs to domestic industrial, labor, and environmental policies, some of the core functions of statehood.Footnote ¹⁷ Human rights bodies would begin to undertake close surveys of administrative practices; there was talk about lifting the immunity of domestic political leaders in face of international prosecutions. The World Development Report of 1997 by the World Bank chose to reimagine the streamlined functions of the state in a global world. The time of “technocrats” with “fanciful schemes” was over. Although at several places, the Bank reported that its objective was not to “dismantle the state,” it was clear that it was to be restricted to its basic functions, especially to providing security, while its role in producing social services was to be limited to a minimum as much more could be done in “partnerships with firms and citizens.” The thrust was on “market liberalization and privatization.”Footnote ¹⁸

Never has law played a more visible role in international life than in the long 1990s.Footnote ¹⁹ When confronted with a problem, the first thing we learned to ask was “what has international law to say about this”? If there was international violence, we wanted to know whether Chapter VII of the UN Charter had been applied. A political crisis arose—and we are worried about basic human rights. Have crimes against humanity been committed? Should prosecutions begin with the International Criminal Court? If there was friction with free trade—we enquired if a domestic policy, for example a labor or agricultural policy, amounted to “unfair” protectionism prohibited under the WTO treaties. Should a panel or the Appellate Body be seized? And what about political unrest at home? Has there been discrimination? Have basic human rights standards been applied? Have courts been appropriately seized and standards of due process adequately followed? A lot of ink was spent by academic jurists on the “constitutionalization” of this or that aspect of foreign policy. Some were keen to develop a “global administrative law.”Footnote ²⁰

The audiences at home were often unimpressed. What they felt at home was austerity, the narrowing down of possibilities of political contestation, and the rise of a new technocracy wedded to what the historian Timothy Snyder has called the “politics of inevitability.”Footnote ²¹ While the UN, the European Union, and countless “global governance” institutions were busily engaged in their problem-solving tasks, domestic audiences were feeling an increasing sense of alienation. In the 2010s, this alienation was given voice by far-right manipulators pointing to the coincidence between the expansion of global governance and the stagnation of the middle classes in Europe and the United States. Where was the process going? Was global governance more than a ploy by “unaccountable elites” to consolidate their privileges? Today, far-right demagogues have enlisted popular disenchantment in support of “taking back control,” a cynical effort to push through a reactionary political agenda. The immediate target was the neoliberal spirit of the 1990s, but the political attack has been channeled to the opening of the West since the 1960s to the world outside that reversed the hierarchies of tradition. Slogans like “Make America Great Again” propagate a return to a supposedly better past. It seeks to restore a system of control familiar from a previous generation, control by white men over their homes and societies, a time when cosmopolitan elitists, feminists, Jewish philanthropists, gay journalists, and African refugees did not tell us how to think or what to do!

II. Disenchantment 1: Knowledge

What irritates the anti-globalists to no end is that the power of global institutions does not at all present itself as values or preferences—as conventional politics—but as knowledge; international experts rule because they are experts, because they know that climate change is true, that increasing prison sentences has no effect on criminality, and that the greatest to suffer from Brexit are its supporters. Check the facts! That exchange is patronizing; there is no conversation, only surrender is available. On the one side, truth, and on the other, ignorance. And yet, as the experts themselves know very well, opinion and choice exist at both ends. Positivism died long ago, replaced by the more complex tools of structuralism and hermeneutics, all the fuzzy science that tells us that “facts” always appear in regimes of knowledge which, though true on their own terms, are no longer solid when we compare them with each other, or look inside their constituent elements. If there is anything international lawyers have learned from the debate on “fragmentation” it is that what one may want to say on a given problem depends on which type of knowledge one uses to look at it.Footnote ²² And as soon as one has found the relevant knowledge, one will find out that it is divided into an orthodox and a heterodox view. The backlashers have noticed this; the institutions do not represent “facts,” but rather opinions. The enchantment is broken. Behind the façade there are policies that can and ought to be contested. “Austerity” is a choice, not a necessity.

The instruments of global law operate in a field of great complexity. Environment, trade, investment, development, and security—each toolbox invokes specialized knowledge but also value: each has a powerful ethos or a project, a policy to advance. To be a trade lawyer is also to think of trade law as good. To have been educated in environmental law is also to have internalized the goals of environmental law. But what if both deal with the same issue? Which to choose? Trade or environment? Security or privacy? Global governance is a clash of knowledges, clash of rival and incompatible instrumentalities: each tool with its objectives, its professional culture and its value-system. Once you know which institution will deal with a problem, you already know how it will be dealt with. Is crisis in Central Africa a human rights problem or an economic development problem? The answer depends on whom you ask, the High Commissioner of Human Rights or the World Bank? And is post-conflict governance in Kosovo a matter of security, of adequate housing and employment or of educating girls? Peacekeeping professionals, social development experts, and human rights activists will each provide a different answer, each with equal conviction. Truth is not one but many. And they are in struggle.Footnote ²³

The anti-globalists have noticed this. The trade expert wants more trade, and the environmental scientist more protection, the interior ministry wants more surveillance, the justice ministry less. It is all so predictable. Imagine a discussion on post-conflict governance between a police officer, a human rights lawyer, a teacher and an architect. The police officer will want to eradicate insecurity in the streets, the human rights lawyer points to poverty in the community. The teacher would prefer expanding the education of the girls while the architect has in mind a housing project. Each possesses a view of the objectives and instrumentalities of the international world, as suggested by the techniques they have learned to master. Each believes available resources would be best used if directed to their field, if their project became a project for that society itself. The unavoidable impression with the outsider is that the certainty each side claims for its knowledge is only a sham. What the experts are actually doing, is trying to monopolize available resources and prestige not for the general but for private advantage. No doubt, experts may often be brought into consultation with one another, to debate their varying objectives in meetings at Geneva, New York, or any other such global center.Footnote ²⁴ But the anti-globalists know that however the debate will go, they will have no say in it. They have none of those languages. Instead they have one recollection, namely that “whatever the expertise—we will always lose in the end; whatever the policy, it is bound to treat us as an ignorant underclass.”

In principle, it might seem possible to back down from this infighting by suggesting that it is up to the governments that fund them to their objectives. Sovereign states are, after all, supposedly the “masters of the treaties.” But modern government is just a local version of an international negotiation. A country's delegate in the conference of the parties to an environmental treaty speak one language, the same country's representatives in a World Bank meeting another. The environment minister represents an environmental knowledge that is utterly global; the finance ministry is a kind of local bureau of the World Bank or the European Central Bank—while the justice minister never ceases reminding everyone of the protections the offered by the human rights treaty system. Domestic departments operate on the basis of systems of knowledge that have nothing “domestic” about them. No wonder. Their personnel were once Erasmus students and are now constantly on travel to Brussels, Washington, Beijing…. All governance today is global governance. No surprise the anti-globalists feel alienated; they do not sit at those meetings; but even if they did, they would not know what to say.

But not only have expert languages colonized everything so that it seems impossible to choose between them, they are also utterly split within themselves. I used to take part in the public debates around 2015 concerning the proposed treaty on transatlantic trade and investment (TTIP) and its follow-up, the EU Canada (CETA) initiative. The question often arose whether private-public arbitration in those treaties might enhance investment—whether it made economic sense for a state to accept the possibility of being sued by an investor in an international arbitration process. There were always two economists. One claimed that the presence of such clauses invariably attracted investors—the other retorted that they made no difference whatsoever.Footnote ²⁵ Once they had made their points, they then began to attack the respective “models” they had used to come to their opposite conclusions. The feeling of disbelief and frustration in the audience was tangible— “must we really take a stand on the relative merits of economic models in order to decide whether to support investment agreements or not?”

Of course, they would not. And of course, models do not work like that. As the Harvard economist Dani Rodrik reminds us, “The correct answer to almost any question is: It depends. Different models, each equally respectable, provide different answers.”Footnote ²⁶ From this the backlashers have drawn the conclusion that there really is no difference between expert “knowledge” and opinion, truth and bias. You could always find an economist, a lawyer, an engineer, to defend whatever needs defending. What the expert says is just cynically dressed as knowledge so as to lift it outside political contestation so as to exclude me!

The knowledge-systems that support global governance are not homogeneous billiard balls. Like sovereign states, they are divided between those who rule and those who are in the opposition, orthodoxy, and heterodoxy. The best experts know very well that their field is fundamentally divided, especially about the fundamentals. While appearances can be kept by agreeing on what lies on the surface, problems emerge on how to explain it. Their disenchantment has infected their audiences. Everyone has seen experts speak from boundless self-confidence—yet constantly contradicting each other or being shown to have been mistaken or biased. But there has been no accountability. So, the anti-globalists have concluded that these are just people in bad faith, speaking down to us in esoteric languages. Privilege disguised as knowledge. According to a study by Pew Research in the United States from July 2017, 58 percent of Republicans and Republican-leaning independents say colleges and universities have a negative effect on the way things are going in the country.Footnote ²⁷

The rise of global governance institutions in the 1990s took place almost accidentally, without much discussion of its social effects. Discussing in the 1950s the interwar internationalization of economic decisions, Karl Polanyi said once that the “separa[tion of] the people from power over their own economic life” had been an important contributor to the rise of Fascism in Europe.Footnote ²⁸ History never repeats itself as such. But as the philosopher Didier Eribon has shown more recently, today's resentment takes the same direction. There is a sense that the values of the city have received automatic priority so that the provincial town is left to decay economically, socially, and culturally. Eribon remembers how his father, together with his father's trade union friends, everyone active as communists, used to struggle for improved labor conditions in the factory, expressing solidarity with Turkish guest workers. Now the factory is gone, and so is solidarity. Everyone now votes for Marine Le Pen.Footnote ²⁹ In her study of popular attitudes in rural Wisconsin, Katherine Cramer has found out that there is feeling that the “people of the city,” especially those with jobs with the government, have utterly lost touch with the greatest part of the country. With their fancy jobs they now look down on everyone else and show no respect. When the inhabitants of rural Wisconsin (and of many other places) look around, they remember (rightly or not) that maybe twenty, maybe forty years ago, these towns and those fields looked prosperous and were well looked after. And now the factories have closed, farming hardly pays off and the young have moved away. No resources are directed from the capital to the towns any longer, and the only visit politicians make there is the single trip just before the elections.Footnote ³⁰

Anti-globalism appeals to that experience and that resentment. This is not absolute deprivation, of course—the people in Wisconsin are not “poor” by any standard. But the decline is real and prompts the memory of a better past, a time of confidence in one's status, and the further improvement to come. And when the loss of this confidence is explained as unavoidable owing to the “facts” of globalization, while the “facts” are less than solid, rejection no longer seems incomprehensible. Instead of knowledge, “fake news.”

III. Disenchantment 2: Politics

The other aspect of the disenchantment about the tools of global governance has to do with the diminishing space left for political engagement—or at least engagement not packaged in the narrow terms of global governance speech, institutional reform, and budgetary allocations. Focusing on the instrumentalities and efficiencies is so much easier than trying to address the opaque worlds of desire and value somewhere beyond what it is we presently do. But if international law's fragmentation is a special case of what social theorists have analyzed as the functional differentiation of our societies (as I have argued elsewhere), then a real difficulty emerges to point out a uniting telos somewhere beyond the special teloi of our practices and the respective regimes of technical knowledge-production.Footnote ³¹ “Functional differentiation in general causes systemic and social, problems which the systems themselves cannot solve.”Footnote ³² The “systemic problem” here is the absence of a unifying morality or a standpoint, a superior set of standards (such as a religion) by reference to which the special objectivities of regimes and toolsets could be weighted and their appropriate place in some overall structure be determined.

International lawyers have often been a vanguard against the “death of metanarratives” so characteristic of the twentieth century experience. When professional international law emerged toward the end of the nineteenth century, it had a reasonably clear sense of the direction where history was going and where its own stakes lay: to assist the march of history was to spread liberal legislation in Europe and to civilize the colonies. With modernity, things would get more international. The esprit d'internationalité that inspired that first generation of international jurist projected nationalism and socialism as potentially dangerous, essentially anachronistic movements to be overcome by what Gustave Rolin-Jaequemyns chose to call in the first issue of the first international law journal in 1869 “a more elevated patriotism” that would take account of the needs and interests of neighboring nations and engage in the international solution of common problems.Footnote ³³ In the aftermath of World War I, jurists began to think of nationalism and sovereignty themselves as obstructions on history's natural course. Had it not been precisely their misguided patriotism that had driven Europeans to die on the battlefield in defense of causes that few would understand.

“Internationalism,” “functionalism,” “solidarity,” “progress”—these were some of the new watchwords with which interwar jurists debate the teleology of international law. In the Francophone world, Durkheimian lawyers such as Georges Scelle speculated about the forces of solidarity that would bring nations together to administer the constantly expanding realm of common interests. In the Anglophone realm, Paul Reinisch inaugurated a “functionalism” that focused on the practical work of technical institutions and would, as Jan Klabbers has noted, draw inspiration from colonial government so as to launch “a century of writing on international institutional law … postulating an ethical duty to cooperate on the international level, reinforced by practical necessities and resulting in a ‘concrete and practical’ cosmopolitanism.”Footnote ³⁴ Of course, not everyone agreed. Realist lawyers in Britain, such as Sir Alfred Zimmern, were deeply skeptical about projecting supranational ambitions to the League.Footnote ³⁵ That the Covenant had been drafted as part of the peace treaty with Germany lent credence to Carl Schmitt's view of it as an instrument of Anglo-American hegemony—an analysis that realist political thinkers such as EH Carr would be the first to approve, though in a different idiom.Footnote ³⁶ During the Cold War, it would become utterly unrealistic to postulate shared objectives behind international law. “Peaceful coexistence” was all that could be achieved; at a time of mutual threat of nuclear annihilation, that did not seem at all too bad. Objectives of free trade could always be pursued under the General Agreement on Tariffs and Trade (GATT) system that, however, way into the 1980s was more about tariff reductions than intervening in domestic industrial and labor policies in view of their potentially distorting effects on free trade. The 1948 Universal Declaration on Human Rights did rally liberal politicians and nations in efforts to give human rights a more determined and legally binding form—an effort eventually crystallizing in the 1966 covenants of Economic, Social and Cultural Rights and Civil and Political Rights. But more significant advances were attained within the confines of regional institutions.Footnote ³⁷ International law remained a coordinating devise, as Friedmann had analyzed it.

No doubt, we often think of the technical tools offered by international law as instruments of international “justice.” Despite the semantic openness of that notion, it would not be hard to identify as the most important set of justice-objectives in post-war international law those that were supported by states emerging from decolonization in the 1960s. Although those claims were often dressed in traditional terms as the justice of sovereignty, as one leading Third World jurist, Mohammed Bedjaoui, stressed, this did not mean simply or even predominantly political independence. Sovereignty that did not extend to economic relations was a mere “phantom sovereignty.”Footnote ³⁸ The idea of sovereign equality, a basic principle of the UN Charter, was not to be understood in a narrow and legalistic way. It was “substantive equality” (“égalité compensatrice”), an objective enshrined in countless UN General Assembly resolutions on permanent sovereignty over natural resources and eventually the Declaration of the New International Economic Order of 1974.Footnote ³⁹

That the tools of international law no longer operate to bring about the new international economic order reflects the political defeat of the third world in the 1980s. No doubt, “justice” remained a widely endorsed objective, but in the 1990s it was assumed that it is better achieved by deregulation and state facilitation of private enterprise and free trade and that it must anyway be balanced with other types of justice, including those of overall growth and development, environmental protection, rule of law, and political stability. It is rarely cited today, perhaps because it is both open-ended and tainted with connotations to state planning and redistribution. But even if “justice” was the name for the objective of international legal instruments, the practical experience is that these instruments emerge as compromises so that there is no single datum—no simple “justice”—anywhere “behind” them to which they could be reduced.Footnote ⁴⁰ In a time of fragmentation, the Montaigne Principle imposed itself on us.

Instead, jurists have much more readily endorsed human rights to address the teleology of international legal instruments. In the 1960s, Friedmann was still careful to limit the influence of rights to regional institutions. The “Third Basket” of the Helsinki accords of 1975 did recognize the value of rights also in East-West relations. And as legal theorists began to endow rights with trumping quality over institutional policies, an increasing number of projects and preferences began to be labelled in terms of the “human rights” of those who held them. Looking around in the 1990s, Tom Franck wrote that “each individual is entitled to choose an identity reflecting personal preference … in composing that identity, each may select more than one allegiance.”Footnote ⁴¹ Characteristically optimistic. Such free-floating individualism arose from the cultural transformations of the 1960s, the collapse of religious, patriarchal and nationalist values, and the rise of what would later be called “identity politics.” In due course, rights were available everywhere in the West to counter the discretion that had become an intrinsic part of modern, deformalized law whose open-ended standards seemed to have empowered the law-appliers to simply to do what they taught best. That was okay as long as those preferences broadly reflected those of the relevant audience. But if they did not….

Eventually, human rights turned into extremely valuable assets. What could be greater than having a preference that would override every countervailing preference? As more and more preferences were translated into the rights of their holders, activists began to worry. If everything was a right, nothing was. How to separate “genuine” from “fake” rights? There was no litmus test. A theory of natural rights was invoked by some—but it could hardly be operated in the context of modern administrative or juridical institutions. And thus the sphere of politics was colonized by rights-talk. Some of this was innocuous, or genuinely helpful. But one could see where this was going. Did racists or misogynists have the right of free speech? Was there a right to bear arms in public places? What about the religious fundamentalist's preference to educate their children at home? Did affirmative action violate the rights of white men? The right to “security” is undoubtedly an important human right—did this then mean that increasing policing resources and the presence of CCTV cameras in public localities should be seen as important human rights measures?

Now no good human rights lawyer would ever think this. They would immediately retort that such policies are not part of “genuine” human rights. Again, the anti-globalists are outraged: “So you say that everyone's rights are of equal concern—but in your practice, you always override priorities that WE think of as important! Hypocrites!” In the absence of clear criteria to distinguish “real” from “fake” rights, the human rights camp seems to be merely trying to impose its values on the world. “Why would their political priorities somehow automatically override ours!” Think about economic, social, and cultural rights (ESC rights), brought into the canon as a cold war maneuver to finish up the implementation of the Universal Declaration of Human Rights (1948/1966). This seemed especially important in order to show that human rights were blind to larger social problems. Rights also had to do with distributing resources in a just way. If they only had a “programmatic” character (as it was usual to assume), did they not operate as a kind of party program designed to bind the hands of legislators and finance ministries outside electoral policies? Were human rights in truth social-democratic policies of the welfare state, cleverly disguising themselves as “non-political” projects of realizing pre-existing “rights”? For example, Philip Alston's recent work as UN special rapporteur on the relation of privatization to extreme poverty is an excellent example of sophisticated human rights policy.Footnote ⁴² But it is also economic policy and the question is whether it has any distance to sophisticated socialist attention to capitalism's dark side? And if there is no difference—well, then what about the claims about “universal and inalienable” or about the view of rights as a non-political limit to politics? For those not already committed, human rights could only appear as a leftist policy in unpolitical disguise.

Among institutions undermined were political parties and the political process. A particularly important moment was when the social democrats, panicking over declining electoral support, co-opted rights as part of the “Third Way.” Tony Blair, Bill Clinton, and Gerhard Schröder rose to power by supporting the rights of women, minorities, and disadvantaged groups as well as internationalist agendas of humanitarian intervention and the environment. But the neoliberal co-optation of the Third Way undermined its credibility, eventually bringing social democracy down and threatening to take human rights with it.Footnote ⁴³ By the time the financial crisis of 2008 had set in rights had become infected by their association with a centrist elite that spoke of free trade and privatization while presiding over unending austerity and a massive growth of domestic and international inequality. The Left had lost its bearings and left in its wake an increasingly cynical electorate looking for revenge in iconoclastic attacks on political correctness and a reactionary attachment to nationalist nostalgia.

None of this is to say that human rights have become meaningless, of course. They still associate with inclusion and progressive change, mostly because such are the objectives of that group of institutional actors who identify themselves with that language. But human rights have also, in the 1990s, become part of the routine of global governance by institutions whose policies have become subject to widespread disenchantment. As a result, that disenchantment has also infected human rights. In the 1990s, human rights were able to claim that they stood outside and above specific institutions, both international and domestic. Having entered those institutions, rights now find themselves just one type of technical knowledge among others—security, development, environment—and with alternative objectives. In such situation, politics will either become a struggle between knowledges, with access limited to those who have obtained the required expertise, or then an indignant rejection of all “knowledge” as simply an unfair camouflage over contestable priorities.

IV. Thinking About Disenchantment

I began this talk by referencing a powerful current of political thinking in the mid-twentieth century that was highly critical of the way modern men and women had become enchanted by the technical and economic tools at their disposal. Max Horkheimer, Theodor Adorno, and Herbert Marcuse believed that the rise of Fascism and Nazism had to do with the way that enchantment had nullified moral sensibilities and distorted the political culture, allowing access to power for demagogues and extremists. Studies conducted under the auspices of the Frankfurt school looked for an explanation for the disaster in the development of what they called the authoritarian personality, a particular type of human being that readily accepted and even looked for a “strong leader” to resolve the anxieties that modernity had awoken.Footnote ⁴⁴ One of the late representatives of that line of thinking, Zygmunt Bauman, even suggested that the Holocaust was a child of modernity, that it could not have taken place in any other conditions.Footnote ⁴⁵ Does today's anti-globalism resemble that earlier moment? History never quite repeats itself as such. It does not provide ready-made “lessons.” Nevertheless, it is a storehouse of experiences and narratives through which the present may be assessed. Apart from untried utopias for the future, needed as they are, what else is there to reflect on in the present?

In the 1960s and early 1970s, great political and cultural changes took place in the North as well as in the South. Some of these changes were recorded in Friedmann's Changing Structures, and supported decolonization and the rise of human rights, the calls for economic justice and national liberation. There was much violence around the globe, some sped up by the Vietnam War, some with roots in local injustices. The political roles of science and technology in governing an increasingly globalized modernity was debated on many forums. One of them was the German Sociological Association that went through the so-called “positivism struggle” in the 1960s. On the Right, men such as Ralf Dahrendorf, Karl Popper, and Hans Albert engaged with the members of the Frankfurt school in analyzing the effects of an increasingly economic and technological civilization on politics and society. The debate was underlain by the theme of “enchanted by the tools” and although the protagonists differed on many of its aspects they shared a concern about the way such enchantment (that they identified with “positivism”) seemed to lead into decisionism, undermining what they called “reason” in politics, impoverishing political debate and supporting demagogues and extremists of all kinds. Both sides included participants who shared the trauma of Nazism.

It is striking, as the reporter of the debate, Dahrendorf, wrote, that none of the discussants endorsed “positivism” and that each in their own way highlighted the interdependence between science and value, reason and politics.Footnote ⁴⁶ Popperian “fallibilism” shook hands with the “dialectical” view of Adorno and others in reserving an important role for politics in the analysis and government of societies. Each believed that enchantment with the technical or economic tools of governance—the one-sided association of reason with instrumental reason—tended toward irrationalism and tyranny. Each declared themselves a supporter of enlightenment against myth—although they utterly disagreed on which side myth stood.

Since that time, the notions of enlightenment and reason shared by the debaters have been attacked as having themselves offshoots of large, often Eurocentric myths about universal progress. Critical theorists have had to grapple with post-colonial, post-structuralist, and feminist challenges. The debate is anything but over.Footnote ⁴⁷ But one of the shared assumptions of critics on both sides has to do with the need to look more closely into the assumptions of what it is we believe we know, and what kind of politics that knowledge offers. One of the participants in that debate, Jürgen Habermas, put forward at the time what I believe is still a useful distinction between three types of interest of knowledge (Erkenntnisintresse) with which we approach the world that we hope to govern—technical, normative, and emancipatory.Footnote ⁴⁸

A technical interest has to do with the tools we have; are they good for the purposes we use them? Can they be improved? Should other tools be used instead? These are questions about the efficiency of our practices that take the objectives of those practices for granted. I see much of this in the ongoing debates on investment protection, especially on the controversy over whether the relevant tools—bilateral investment treaties (BITs)—adequately respond to the objectives of stimulating investment and supporting domestic development. Although opinions are divided, the notions are so abstract that experts have no difficulty to reduce them to each other and to move directly to the techniques whereby they might be realized without further controversy.Footnote ⁴⁹ How to make sure that the procedure is non-biased, and that the arbitrators or judges are elected in the appropriate way? Focus is directed on jurisdiction, composition, and procedure. But this hardly satisfies even the technical interest of knowledge. For there still is no clear view of their effects, including who wins and who loses. A recent study by the Organisation for Economic Co-operation and Development (OECD) on the costs and benefits of international investment agreements (IIAs) concluded its review on the matter as follows:

To be enchanted by a tool is to believe that there really are no other relevant problems than technical ones. The course is cast, the objectives are set, and the only question is how to reach them efficiently and without friction. If only the system operates “as it is supposed,” all will be fine. Much of 1990s global law—the expanding authority of WTO panels, the International Criminal Court, the many UN-sponsored post-conflict governance projects—now seems a little like that. Progress was about things becoming more “international,” less tied down in the bureaucratic structures of the state, to be managed from the heights of New York or Geneva, Washington or Brussels. Insisting on the actual effects, hard to measure as they anyway were, seemed disruptive, perhaps even disloyal. Like my interlocutor(s) on the plane back from New York, many of us had a stake in believing, and having others believe, just that.Footnote ⁵¹

But there are other questions. As long as it is conducted among investment experts, the debate on the proposed investment court, for example, is bound to be limited to a technical-procedural question. What “increasing investment” or “domestic development” might mean, whether they are the appropriate objectives, will not be studied in any depth. As long as thinking does not encompass the concepts on which legal techniques operate, the way they are translated into policies and ultimate “effects,” it remains imprisoned—“enchanted”—by those techniques as they have consolidated in time. The passing of a resolution, or signing of a convention, is just a beginning. The problem exists everywhere in international legal practice. What do expressions such as “legitimate expectations,” “immunity of state officials,” “war on terror,” “sustainable development,” or “non-tariff barrier” mean? How do they allocate powers and vulnerabilities? Each is the product of a historical moment, carrier of a project, and the effect of some consensus. Each is also blurred in its boundaries and often contested in its substance. The notion of “development” in investment law cannot be pinned down in numerical data derived from domestic GDPs because it is not clear that the GDP can be taken as the relevant standard.Footnote ⁵²

The normative interest of knowledge directs attention from the tools to what they are tools for, and seeks to penetrate through the abstract and diplomatic descriptions of technical analyses of particular tool-regimes to their actual effects, provoking questions about choosing between contrasting preferences of competing regimes—trade and environment; human rights and security; autonomy and integration. What is it that we want? And who are we? These are questions that it is utterly insufficient to examine in the bodies whose members are already enchanted by the tools of which they are the experts. They touch upon incommensurable value schemes, choosing between “winners and losers.” They cannot be decided by empirical methods or algorithms but require the involvement of the political community.Footnote ⁵³

But there is also a third interest of knowledge; one that is not only about what our values or ends are, or how to realize them, but which asks the question: “are they the values we should have, in view of everything that we know about the world”? As our knowledge increases, we may have reason to change our politics. This is the most difficult of the three interests because it requires turning against the commonsense view that we share to find out if some pathological distortion already infects that view. The theme of enlightenment against myth receives now a slightly different form. To be enchanted by one's tools is to share the commonsense view of their place in the overall scheme of things—how is it then possible to take a critical view one's enchantment? Two alternatives seem available. Either one adopts some external critique of that “overall scheme”—with the risk of losing one's audience and having to justify that “external” view against an a priori reluctant audience. Or using the “internal” contradictions, gaps and inconsistencies in the overall scheme of things so as to seek to affect a change. One possible way forward here is to break the boundary between knowledge and value, science and politics. As Habermas once put it in one of his early articles, “the truth of statements is ultimately tied up with the intention to live the true life.”Footnote ⁵⁴ Here the interest of knowledge departs from the tools and their objectives, highlighting the tensions within and choices to be made inside the “overall scheme of things,” inviting disenchantment with purely economic-technical practices with the view to a larger view of their place in the whole.Footnote ⁵⁵ This would be very demanding, of course, and the possibility, perhaps even likelihood, remains that all that is attained is what Sloterdijk labelled “enlightened false consciousness,” the strategic exploitation of that larger view so as benefit one's short-term interests.Footnote ⁵⁶ I will provide examples of this at the end of this talk.

V. Breaking the Enchantment

Let me finish by examining what learning from this three-partite interests of knowledge might mean for today's international law and lawyers. There should clearly be more and more reliable analyses of the effects our tools have in the world, to what extent they realize the purposes we attribute to them. Or are they merely a routine that we continue to follow because we are enchanted by it? Such analyses satisfy an important technical interest; and we know they should be closely aligned with the normative interest, that is to say, the interest we have in being clear about what their purposes are, and their distributive consequences. As long as enchantment continues, we keep doing what we have always done, reproducing the world as we have come to know it. So, it is often necessary to step outside the legal-institutional world that is familiar to us and to ask about its effects in the world. Might those effects be better realized by some other institution?

But better strategic awareness—the ability to choose the right tool to better attain an objective we have set for ourselves—may not always suffice. For this takes those objectives for granted and is unable to capture the way they are part of a larger, historical world of meanings and understandings that offers us only certain, limited objectives. One of the problems of politics, understood as a calculation and management of preferences, is that it takes those preferences as given, without asking the question about how we came to have them or whether they are good for us. Or to put it more concretely, whether the ideas of continuous growth and commercialism are ultimately in our interest? Disenchantment should also lead to taking those preferences themselves under scrutiny in view of what it is that we have learned of the world. It asks the question of whether they are right and sustainable and based on the best available (though always incomplete) knowledge. Whose interests do they serve and whose do they push aside? The emancipatory interest of knowledge seeks, in a way, to alienate us from our inherited preferences, inviting us to take a critical look at our politics with a view of what we have learned of the world. This seems to me especially worthy for an international law, one that aims to take a general, or global perspective on the practices and preferences that people in different places and positions have. To ask not only the question of how to fulfill our preferences but what preferences we should have is to think of science and value, or knowledge and politics, facts and norms, as inextricably linked.

No myth has enchanted modern lawyers more deeply than the Promethean one about humans taking nature for their use. It is time to let go of that myth. Marx—another enlightenment hero—was on to something when he attacked human rights as the rights of an egoistic individual and contrasted merely “political emancipation” with emancipation of the human species. For Marx the life of every human being was dependent on the nature of the social relations where they lived.Footnote ⁵⁷ But in limiting his analysis to social relations he did not go far enough. Today we know the human species is utterly dependent on the life of other species and, indeed, the natural world itself. Many of our most powerful economic, technical, or legal tools have not only shown themselves useless for managing the relationship between the human species and the surrounding world but have been uniformly directed to the exploitation of the latter. That is a preference we have reason to be critical of. While each tool may separately carry out a useful-seeming narrow task, when they operate jointly as part of an economic-technological world-system, they lead us into a future we have no reason to wish for.

No knowledge, even if produced by the best available techniques, is absolutely and unconditionally “true.” There is reason to be skeptical. But there is no reason to be ignorant. We have little choice but to operate with knowledge emanating from sources that we have reason to believe have the greatest concern for and interest in truthfulness. The most relevant datum regarding the human species today comes often with numbers, especially numbers signifying trends. Every month, close to seven million new human beings are born; about 1.5 new Finlands descend on Earth. That makes annually eighty-two million new humans. World population is now about 7.7 billion, a number expected to attain eleven billion in 2100. How long can that continue? In most places, even raising the theme of birth control is taboo. The growth of the human species is the most significant natural element determining the conditions of life on earth. That growth is largely responsible for global warming. According to the latest Intergovernmental Panel on Climate Change (IPCC) Special Report, an increase of the global temperature by 1.5 degrees may already be attained in 2030, at the latest in 2054. In the conservative, carefully worded language of the report that concentrates on comparing the effects of a rise of 1,5 degrees to the (quite possible) 2 degrees, “[s]ome impacts may be long-lasting or irreversible, such as the loss of some ecosystems.” Arctic areas will be hit two-three times harder than other areas. Sea level rise up to 2100 will be anything from 0.27 to 0.77 meters, though local variations will be great. Extreme weather conditions will become more common. Marine ecosystems, and through them, fisheries, will be dramatically reduced, and the reduction will double in case there is a rise of 2 degrees.Footnote ⁵⁸ The growth of the human species is paralleled by the disappearance of other species. According to a report by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) from May 2019:

We should learn to be critical of our preferences. They are unsustainable by what we know. Breaking the Promethean myth is both very difficult and very easy. How so? Leaving Helsinki to teach my course at NYU last year, I asked my daughter Aino if she would like to accompany me like in many earlier years. She looked at me a little sadly and said, “Dad, I think our family's carbon footprint is already large enough.”

Epilogue

On this day, November 5, 2019, when I am finishing the written text of my Grotius talk, The Guardian publishes a report signed by 11,000 scientists around the world according to which climate change is proceeding much faster than foreseen and that “the planet earth is facing a climate emergency.” The report, originally published as a “Viewpoint” in Bioscience concludes that “an immense increase of scale in endeavors to conserve our biosphere is needed to avoid untold suffering due to the climate crisis.”Footnote ⁶⁰ On this day, November 5, 2019, The New York Times publishes an article with the title “E.P.A. Relaxes Rules that Limit Water Pollution from Coal Plants.” According to the article, the new rules “are part of President Trump's vast environmental deregulation agenda aimed largely at eliminating rules the fossil fuel industry finds burdensome and extending the life of coal-burning power plants.”Footnote ⁶¹