Academic journal article Duke Journal of Comparative & International Law

Situating Liberalism in Transnational Legal Space

Academic journal article Duke Journal of Comparative & International Law

Situating Liberalism in Transnational Legal Space

Article excerpt

"... a call to increase `collaboration' between international lawyers and international relations theorists, together with the sociology of the end-of-State (as we know it) and the political enthusiasm about the spread of `liberalism,' constitutes an academic project that cannot but buttress the justification of American hegemony in the world."

--Martti Koskenniemi, Image of Law and International Relations (1)

"By the end of the nineteenth century, German forestry science was hegemonic."

--James C. Scott, SEEING LIKE A STATE (2)


German forestry science sought to bring legibility and rational simplicity to the forest, driven by a commercial and bureaucratic logic to maximize the return of timber. The well-managed and aesthetically ordered forest succeeded in producing prodigious amounts of a single commodity. (3) Over time, however, the scientific management of forests failed miserably, introducing a new word to the vocabulary of German forestry science--Waldsterben (forest death). (4) According to Scott, the simplification of the forest disrupted the complex, symbiotic logic of the forest. (5) As it turns out, "[m]onocultures are, as a rule, more fragile and hence more vulnerable to the stress of disease and weather than polycultures are." (6) The current debate over liberalism as an ordering principle of international, or more accurately, transnational legal space, evokes images of large-scale schematization. Dissident voices interested in the preservation of political and legal polycultures are therefore advocating a closer look at liberalism's implications. (7)

The effort to integrate international law and international relations has reached an analytical juncture that for some scholars offers a rich minefield of academic inquiry. For others, the effort signals a disturbing turn in an already normatively tinged enterprise. For example, Ann-Marie Slaughter's suggestion of liberalism as a heuristic device is certainly useful in re-imagining conceptions of international law within a "disaggregated" order of liberal States. (8) However, as the quote by Koskenniemi above illustrates, this call to liberalism can be seen as an endeavor to orient the discursive framework toward further entrenching hegemonic influence. (9) Andrew Hurrell also wonders, "[W]hose interests are being served by which governance mechanisms and whose values protected and promoted" by Slaughter's transnational, technocratic approach. (10) Slaughter herself recognizes that these critiques pose the "sharpest challenge" to her conception of transgovernmental networks, (11) yet she does not offer a satisfying defense.

Why is there such concern over the implications of liberalism? Is there something deeper at work than a concern that `valid laws' are being eroded? And why is Slaughter unable to offer a lucid and powerful argument against this line of criticism? This note traverses the trail of Koskenniemi's intuition and maps out his gestalt reaction more concretely. It explores where the trail leads, what is found, and ultimately, whether what has been found is helpful in better understanding the relationship between international law and politics. As in the Koskenniemi article, (12) it is with a sense of caution that I approach the recourse to liberalism. As Latham states, "[L]ittle seems to be known about how liberalism affects political and social life when viewed from a global perspective." (13)

This note is a theoretically oriented attempt to track and analyze a particular intellectual discourse occurring in international legal scholarship. In unpacking the contents of liberalism, this note will first determine the character of the setting in which liberalism operates--namely, transnational legal space. It will then examine what liberalism entails, analyzing transgovernmental networks and their relation to liberal order building. I will also look more closely at Koskenniemi's argument, and suggest ways to situate Koskenniemi's argument to better understand the underlying issues posed by his critique. …

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