Setting the scene

Approaching Kratochwil's fifth meditation throws us in media res and we quickly find ourselves in a dramatic predicament. Indeed, throughout the previous meditations the reader finds out that practical choices cannot be theorized a priori since they involve judgment and not logical deductions from data, good intentions, and expertise. Thus, approaches to regulate international affairs using dispute resolution mechanisms, hard/soft law doctrinal dichotomies, global constitutionalism, activists' claims in the name of humanity, and experts' curative interventions in moribund countries expose the absence of adequate institutionalized political processes.Footnote ¹

Meditation five entitled ‘The power of metaphors and narratives: systems, teleology, evolution, and the issue of the global community’ kicks the ball forward by proposing that most writings and practices in International Law and Politics deploy, and rely on, a teleological narrative of universal progress. These remarks apply quite well to the triadic group of helpers, enthusiasts, and experts dealt with in meditation four.Footnote ² Yet, Kratochwil chooses new sparring partners for this meditation: (i) Luhmannian systems theory's argument of a naturalistic evolution toward a functionally differentiated world society and correspondent global law; and (ii) jus cogens as a doctrinal embodiment of global values that ought to be protected as an acquis of the international community (beyond the consensual nature of the international legal order).

The juxtaposition of systems theory and jus cogens narratives may appear intriguing to many, and it yields much food for thought. Both narratives naturalize evolution, seeing it as a universal law either toward ever-increasing complexity or indisputable moral progress. In both cases, these endpoints are normatively charged. In the case of jus cogens, it is the moral self-evidence of the values contained in it that does the work. For systems theory, it is the need for allowing systems to become increasingly complex to ensure their survival. While jus cogens is a human creation, the emergence of global law is a spontaneous product. But both presuppose a simplified version of human agency. For jus cogens' supporters, all there is left to do is to deploy those incontrovertible values and principles. For the systems theory narrative, we cannot and should not do anything other than try to irritate the autonomous systems. Ultimately, both accounts are also ideal-theoretical in that they leave behind problems of concrete judgment and action.

Kratochwil makes two sharp observations regarding Luhmannian systems theory. First, by placing systems' evolution within broader stages of social development, modern systems theory apparently does away with the need for a teleology of progress. Explaining the emergence of law as an autopoietic system is the advent of a functionally differentiated society arising after logics of segmented and stratified social differentiation. Second, this move does not work because one is left without an explanation as to why some functional systems, for example, the legal system, did not develop globally and are still territorially based. Furthermore, observation of global governance practices shows that issues are not functionally allocated to organizations as the theory would have it. Instead, such allocation is a matter of political struggles that occur at multiple levels from domestic arenas to international and global fora. Hence, it is inappropriate to see the emergence of global law and international legal institutions as something natural, tied to the inexorable evolution of society.

At stake, basically, is the (in)adequacy of transposing biological theories of evolution into the social sciences. Luhmannian theory must explain when systems become, historically speaking, autopoietic and thus functionally differentiated; whereas Teubner has to explain why Global Bukowina represents a functionally differentiated system in the first place.Footnote ³ Since autopoietic systems internalize the mechanisms of their own evolution, Luhmann's account has to explain how Darwinian random variation and natural selection work in the legal and political social systems where cognition makes both variation and selection a product of human choice.Footnote ⁴

Concerning jus cogens, Kratochwil argues that their fundamental nature and content have been understood in too many ways for them to function as decisive trumps. We are reminded that this reveals a lack of widespread consensus on international legal practices. Moreover, it also shows how pronouncements of common values shared by the international community are speech acts made within a bilateral international legal order subjecting jus cogens to rather mundane jurisdiction and enforcement hurdles. One could think that locating jus cogens within customary international law, rather than the law of treaties, would solve some of the problems identified above. Kratochwil, however, convincingly shows that such a move cannot work due to the old issue of ascertaining what counts as a settled practice and new difficulties arising from shifts in states' political speech acts, the notion of instant custom, and the use of the criteria for international customary law to recognize general principles of international law. Altogether, this means that the gospel of jus cogens as a hallmark of a narrative of universal progress lacks consistency, fails to reflect a shared cosmopolitan vision, and must be practiced, thereby raising all sorts of delicate political and legal issues.

Throughout the meditation, Kratochwil guides us effectively in contemplation laying bare many holes in our established disciplinary, conceptual, and normative strategies to cope with the world (see Section ‘Reading between the lines’). As other contributions to the Symposium highlight, this ‘therapy’ raises some issues. Above all, we are told to ‘go on’ but it is unclear ‘where to’ and ‘how to go on’.Footnote ⁵ In the last section, I take a different cue and argue that more needs to be said on why we should go on in the first place. Ultimately, I submit, this is the radical question hidden in Kratochwil's meditative-style work which requires the articulation of the value of hope.

Reading between the lines

An important thesis of the meditation is that both in the practice and research of law and politics under globalization, one should not jump a priori from the nation-state to the international/global sphere, thereby forgetting both intermediate (e.g. the regional) and domestic levels of analysis. Such a conceptual assumption helps to reinforce the narratives of progress as something happening in a timeline of its own. If super-norms and organizations automatically bring about their professed end result – human progress – then they would lie outside of history and time.

The meditation, however, shows the ways in which the life of jus cogens and systems follow that of the remaining human products. Thus, there cannot be such things as naturally emerging and proliferating systems at the global level, and jus cogens cannot ex nihilo create an international community with shared values. In turn, this has clear normative implications. First, it denies Teubner's thesis that we cannot steer transnational systems. Second, it shows how the community-creation power of jus cogens is premised upon a domestic analogy that is absent in the global space, namely constitutional revolutions that create communities while organizing public powers that ought to ensure fundamental rights by means of durable constitutional texts.

This connects nicely to Kratochwil's fundamental claim on the performative effects that the narrative of progress articulates since nobody wants to be a reactionary (as the Old Man of Belém in the Portuguese epic poem The Lusiads) by rejecting both super-norms embodying sacred human values (e.g. the prohibition of genocide) and the sophisticated disciplinary account of social evolution and differentiation.Footnote ⁶ And yet, as Kratochwil claims, it is puzzling how the invention of a ‘community’ of shared values became something revolutionary. After all communities are often seen, as in the communitarianism/cosmopolitanism debate, as past atavistic structures opposed to the progressive cosmopolitan vision.

Furthermore, as documented in the meditation, treaties conceptualize the fundamentality of jus cogens differently suggesting that, after all, there is a plurality of international law-making communities. This shows that we cannot rely on the analogy with domestic constitution-making since there is no comprehensive constituent power laying down the will of the people. Similarly, the lack of a single community also plays out in the reverse position of a community as a subject of rights. First, breaches of the international community rights cannot be activated by the community itself but depend on individual state action and are tied to community-bounded rules of legal procedure, for example, jurisdiction or the procedural/substantive divide that frames the rights of states qua another kind of community. Second, invocations of customary international law and the deployment of the criteria to ascertain its existence reveal how ‘the relevant community’ is everything but global and stable, being determined instead by practical argumentative needs.

On the systems theory account, two effects in terms of research approach are worth mentioning. First, this meditation offers a powerful argument against a logic of reflection on law and globalization that has reverted the relationship between society and law. Writers deploying a systems theory perspective claim that the role of law in globalization is the product of the theory of society we espouse, namely ‘tell me your theory of society and I will tell you the kind of law that applies’. As I have shown, given the strictness of systems theory's assumptions on social developmental stages, it simply deduces the outcome of a global law that cannot be steered.Footnote ⁷ Therefore, such a theory of society amounts to a surrender of historical reflection on how the law constitutes the world via human agency. Second, we should not forget how recently von Bogdandy and Dellavalle heralded Teubner's construction of a legal Bukowina as the first successful attempt to conceptualize lex mercatoria as a purely autonomous order, ‘raising it to an unprecedented conceptual level’.Footnote ⁸ Even if the authors ultimately criticize the desirability of such an account (for lack of public law elements), Kratochwil's meditation offers an important antidote against the charm of judging academic accounts based on their conceptual innovation for the sake of conceptual innovation.

Meditating with fritz

In what follows, I raise three interrelated challenges to the approach laid down in this meditation (and throughout Kratochwil's work). They concern (1) the idea of hope, an important value impregnating American pragmatism left unexplored; (2) the relationship between experimentalism, situatedness, and Archimedean critiques; and (3) the voices of conceptual change one focuses on.

Throughout the meditation we are told how jus cogens became a concept with varying inconsistent meanings and foundations depending on the treaty, legal scholar, and tribunal we look at. We are further told that rooting jus cogens in customary international law succumbs to another set of practical problems. To be sure, Kratochwil's critique is not against the notion itself but against its supposedly fundamental nature which logically would require it to display incontrovertible foundations. Yet, practice simply falls short of such an ideal. While I understand the critique and find it a powerful one, I feel a performative contradiction (from a pragmatist mindset standpoint) at play.

First, it seems that we ought not to place our hopes in constructing ideal models of reality and ideal worlds disconnected from practice because they need to be forged in and through action. Simultaneously, Kratochwil's analysis of social practices aims at ‘enabl[ing] us to change the way “things are”’.Footnote ⁹ To me, this is nothing else but a deep profession of hope too; hope and belief that intellectual critique and more robust analyses of meaning-making in social affairs will allow us to build a better world. As Patrick Shade puts it:

The conundrum is then why some hopes appear to be hopeless, whereas other ones are warranted. This comes to mind because after the meditation, I am unsure whether anyone can know ‘how to go on’. After all, if there is a call to practice and concrete instantiations of concepts in action; it is actual practices, such as attempts to write judgments, opinions, and laws using jus cogens, that are subject to a scathing critique.Footnote ¹¹ And yet, how can individuals act without hope to advance a normative vision as well as how can one know in advance all the criticisms against one's attempt to develop and work with jus cogens? Why should one hope that the program of action as prescribed by Kratochwil is at all feasible for agents placed in the situation of having to make actual concrete choices? Especially given the problematic foundations of jus cogens. Overall, it seems that Kratochwil's approach is lacking an explicit account of hope, its kinds, and its role in animating different normative projects.

The second point stems from the first and has to do with the fact that sometimes Kratochwil's critique seems to presuppose an Archimedean standpoint that is somehow incompatible with an evaluation of agency as situated and essentially practical.Footnote ¹² If all knowledge is fallibilistic and solutions can never be simply deduced or generalized, does not a critique of the practice and discourse around the history of jus cogens assume a non-situation based analysis while postulating that somehow there ought to be a consistent trans-situational logic? Since the legal enterprise relies on tradition linking the past to the future according to particular canonical methods, wouldn't it be more appropriate for the pragmatist to compare concrete cases? Namely, the issues at stake and the available alternatives when a specific decision on how to interpret jus cogens, or what counts as state practice, had to be made. Otherwise, would we not reify an ideal-theory type of critique?Footnote ¹³ I believe some consequences follow for the research approach delivered by Kratochwil. Rather than looking at how different cases or treaties articulate inconsistent meanings of jus cogens, the analysis would have to be geared toward examining whether the inconsistent notion was needed in the argumentative strategy of the court or agency under analysis. And this would require a more detailed analysis of the specific practical problems that agents were called to address.

This is not, I hope, the typical criticism against critique for its failure to provide an alternative on what to do. It is, I believe, a matter of and a call for coherence. For the nature of the critique to be aligned with the fallibilistic view of knowledge espoused by pragmatists, we would necessitate a different and more detailed analysis of examples and options available, that is, politics as the art of the possible. Put differently, even if knowing the ideal state does not help in making practical choices, knowing the latter also does not necessarily help us act better.

That sometimes the type of conceptual critique advanced can run astray is evidenced by the fact that jus cogens seems to be largely irrelevant in practice.Footnote ¹⁴ While Kratochwil is certainly right that jus cogens has enabled some to start changing the foundation of international order (from consensus/contract to a global community), the critique seems to be suspended in the high level of conceptual change while their substance and effects can be pursued through other legal forms. In other words, the practice being criticized may not be the relevant one.

Third, if law is a language game then it seems that we are stuck with descriptions and re-descriptions of the uses of law.Footnote ¹⁵ But if that is the case, then it sounds appropriate to include non-mainstream actors of international legal discourse and those using the language game of law against the narrative of progress.Footnote ¹⁶ In other words, while Kratochwil's critique is powerful in its own terms, it does not communicate well with the uses that non-incumbent actors make of the existing categories. Once again, the feeling is that there is hope that we can reach a point in which the language game will be conceptually sound, whereas the logical conclusion would be to accept that we should have little left and strive to endlessly analyze how all actors mobilize the law.Footnote ¹⁷ Thus, focusing on language games such as the one around jus cogens and their uses made by the incumbent actors can make us neglect the wealth of political uses subaltern legality and counter-globalization movements deploy.Footnote ¹⁸

As I have confessed, Kratochwil's critiques are spot on, but they raise an uncomfortable question: what is left for academics to do after such a style of critique beyond the Sisyphean task of never-ending describing and re-describing practices and uses of concepts? This is a heartfelt question as I take the central ethical proviso of Kratochwil's teachings to be very meaningful, compelling us to be alert, to distrust ideal or a priori proclamations of progress, and to imprint in all of us the belief that, what is hard but also necessary, is to engage in daily prudential decision-making. This is even more important in times in which the big constitutional revolutions have already been made, and thus the whole problem is the daily practice of different agencies, practitioners, and scholars in actualizing the normative vision such constitutions establish. But why should we do it and in virtue of which values and motivations?

I have argued that the question of hope – why go on? and why uphold such a program? – deserves more development. Indeed, given our predicament, why should the Freudian Realitätsprinzip ‘as the ability of the mature mind to invest in long-term satisfaction’ prescribe political action over pleasure or inner enlightenment? Responsible action and conceptual analysis over, for instance, the Daoist wu-wei?Footnote ¹⁹