Language Games of International Law: Koskenniemi as the Discipline's Wittgenstein

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THE POLITICS OF INTERNATIONAL LAW BY MARTTI KOSKENNIEMI (HART PUBLISHING, OXFORD, UK AND PORTLAND, OREGON, 2011) 371 PAGES. PRICE US$70.00 (PAPERBACK) ISBN 9781841139395.

CONTENTS

I   Introduction
II  The Non-Philosophy and the Non-Theory of the Politics of
    International Law
III The High Priest and the Perpetual Confession of Liberal
    International Law
IV  A Mirror into the Soul of the International Lawyer
V   The Anguish of the Soul of the International Lawyer in the
    Face of Nuclear Dilemmas
VI  History of International Lawyers' Vocabularies as Philosophy
    of International Law

I INTRODUCTION

This volume provides another, almost accidental, opportunity to reflect on the work of Martti Koskenniemi after the review which the author wrote in the Michigan Journal of International Law in 1990. (1) That review argued that the shadow of natural law was a ghost haunting the critical approach to international law which Koskenniemi represents. It received no critical response from Koskenniemi. It received a brief mention in the Epilogue to the second edition of From Apology to Utopia. (2) Emmanuelle Jouannet, in her critical introduction, informs the reader that Koskenniemi has never intended to produce a 'theory of international law ('3) and 'indeed he would object to the very term itself, as his goal has never been to be perceived as a legal theoretician or philosopher but rather as an international lawyer addressing other international lawyers'. (4) His aim is not

   the production of a general theory of law, but rather the
   clarification of practice and discourse of international
   lawyers--or perhaps more accurately, the discourses and the
   practices that appear to him simply as different styles that we can
   adopt depending on circumstance, but by which we are also
   inevitably constrained. (5)

Notwithstanding the above disclaimer, Jouannet says shortly afterwards that, among the large number of philosophers who have influenced Koskenniemi, the one who may be closest to him is Wittgenstein. (6) In addition, Jouannet, herself an academically-trained philosopher, makes a rather philosophical point which his important for any reflection on Koskenniemi's work. There is discussion among contemporary philosophers about the possibility of intersubjectivity being attained. However, the position of Koskenniemi remains that 'the practice of intersubjectivity inevitably becomes a simple argumentative strategy for claiming objectivity and thus a struggle to ensure the hegemony of one's personal position'. (7)

It is equally possible to describe such a position--whether or not it understands itself as philosophical--as simply obstinacy or intransigence, to use Wittgensteinian 'ordinary language'. It marks what 'ordinary people' might characterise as 'emotional immaturity', endless squabbling about whatever. At the same time, Jouannet notes that in the context of legal discourse, Koskenniemi is insisting that 'the solution to legal questions stems from a political decision and not from a reasoned choice'. (8) She goes on to quote Koskenniemi himself as saying that

   [t]he decision always comes about, as a political theorist Ernesto
   Laclau has put it, as a kind of 'regulated madness', never
   reducible to any structure outside it. A court's decision or a
   lawyer's opinion is always a genuinely political act, a choice
   between alternatives not fully dictated by external criteria. It is
   even a hegemonic act in the precise sense that though it is partial
   and subjective, it claims to be universal and objective. (9)

This authoritarian, irrationalist discourse by its very nature cannot be contested because, at every stage, Koskenniemi deals in what is to him self-evidently an attempt to gain hegemonic control. Obviously whoever disagrees with him is simply trying to 'silence' him, to impose his own 'partial' view on Koskenniemi, who, presumably, has also a partial view, which the evidence of this book suggests he has quite successfully imposed on others. …