International Law and Its Discontents: Critical Reflections on the War on Drugs or the Role of Law in Creating Complexity
Santos, Alvaro, Proceedings of the Annual Meeting-American Society of International Law
Let me first say that I am really excited about this roundtable and think it could offer a counterpoint to the general framework of the Annual Meeting. As I read the Meeting's general statement on "Confronting Complexity," I was struck by at least three main assumptions: (1) complexity is a problem; (2) international law can solve the problems/chaos/challenges stemming from complexity (social, economic, political); and (3) international law can fix these problems by providing order, predictability, peaceful settlement of disputes, and clarifying rights and obligations.
For various reasons, these assumptions seem to me problematic, and I welcome the critical perspective of our roundtable as an alternative to the Annual Meeting's statement. I do not mean to pick on this statement specifically, but perhaps we can use it as reflective of what might still be resilient assumptions of international law as a discipline. My initial reactions were that:
(1) whether complexity is a problem or not depends on what the previous order was, and it is impossible to answer this question without an analysis of the particular domain under consideration and an account of the different actors involved. So this calls for a distributional analysis that highlights the importance of asking who wins and who loses.
(2) the problems or challenges do not exist in a vacuum for international law to "solve," although international law is often constitutive of them. So poverty, immigration, and war, to name but a few important problems, are all legal regimes. They are not pre-legal or extralegal, but rather are constituted by law. In other words, law is constitutive of complexity, not foreign to it. So if these phenomena are a problem, the first question would be to ask how law contributes to it rather than how can it "solve" them.
(3) the usual toolkit of solutions to these problems--clarification or formalization of entitlements, consistency and predictability, dispute settlement, and so on--strike me as odd or ill-informed. This is not because they are bad on their own, but because they are offered as general solutions to problems in which the role of law is often misdiagnosed or not understood. And they reinforce the idea that all international law can offer is a procedural framework to organize what was previously chaotic.
I take Barbara Stark's initial statement and the references to Freud's (1) and Stiglitz's (2) work as an opportunity to reflect on the international community's consciousness and on globalization's distributional consequences. Let me offer some preliminary ideas here derived from my own interpretations of these works. Freud presents us with the paradox that, despite the great achievements of civilization, people are deeply unhappy. They experience a general sense of malaise in the midst of unparalleled economic prosperity, scientific advancement, and cultural achievement. This malaise Freud attributes to civilization's repressive force, which effectively quenches people's desires for power, sex, and death. These unrealized desires are then expressed in the form of guilt and existential angst. Law is the civil face of repression, and it is crucial in making civilization possible. But Freud's analysis also invites us to think of the downsides of law and the toll it exerts on the human condition precisely by creating order, predictability, consistency, and enabling peaceful settlement of disputes, all of which in his view contribute to making civilization possible.
My impulse here is to push Freud' s pre-Realist understanding of law further and examine what we can gain from understanding law not only as a constraint but also as an enabler. In other words, law not only as the handmaiden of civilization but also as the enabler of civilization's opposite impulses. Law from the point of view of Holmes' "bad man," (3) which not only restricts but channels and enables the will to power, money, sex, and death. …