ODEC 8080 - Producing legal knowledge

Over the course of this research seminar we are going to meet three times in a series of six sessions dedicated to the question ‘what should we understand by the idea of new thinking in international law?’ In terms of its basic intellectual genre, the proposed seminar will partly theoretical and partly historical. It will look, in this sense, not only at the general field of theoretical possibilities that confront the discipline of international law today but also at some of the more prominent examples of what has been done under the rubric of ‘new international law thinking’ in the past, what that entailed in practice, what sort of insights this can give us, etc.

The seminar will consist of five lecturer-led sessions and one student-led session. The first three sessions will provide an excursus into the history of disciplinary renewalism in international law and what that can tell us about the patterns of renewal practices. Sessions four and five will turn their attention to the renewalist possibilities presently open and available within the discipline. In the former context, we will explore not only those renewal projects that positioned themselves as largely contestational (critical projects) but also those that positioned themselves as ‘merely’ alternative (re/constructive projects). In the latter context, we will review not only at those possibilities that are currently being explored within the discipline but also those that as yet are not.

The last session will be set aside for student presentations. Drawing on the examples and readings discussed earlier in the seminar, each student will be invited to sketch out (make a pitch for) their own model for a new theoretical intervention, disciplinary renewal project, etc.

A provisional list of theoretical traditions and renewal projects that will be discussed and touched on at various points in this course:

• traditional positivist formalism (Ian Brownlie, Oscar Schachter, Vaughan Lowe), classical anti-formalism (Alejandro Alvarez, the New Haven school), post- and anti-colonial approaches to international law (Mohammed Bedjaoui, Antony Anghie), ‘international law of development’ (Maurice Flory, Madjid Benchikh)
• organicist approaches to international law (Nathaniel Berman and G.I. Tunkin), transnational law (Harold Koh, Regina Jefferies), feminist international law theory (Hilary Charlesworth, Karen Knop, Vasuki Nesiah), international law and the political economy (Claire Cutler, David Schneiderman), neo-Marxist international law theory (B.S. Chimni, Susan Marks, China Mieville)
• structuralist approaches to international law (early David Kennedy, early Martti Koskenniemi), post-structuralist approaches (recent works of Jean d’Aspremont), posthumanist approaches to international law (Maria Erlander, Marie Petersmann, Emily Jones)

At the intellectual centre of the seminar stands the idea of the general ambivalence of the concepts of ‘renewal’ and ‘radical break’ and the resulting possibility of articulating three fundamentally different types of renewalist projects.

The below summary should help convey the essential structure:

• The trope of the radical break in international law: historical illustrations (Alvarez, Tunkin, Knop, Bedjaoui).
• Conceptualisation of the break: radicalism for-itself (re-organization of the disciplinary episteme with a view to a theoretical renewal of the discipline) vs radicalism in-itself (re-organization of the international legal order requiring an update of the scholarly account)
• an example of radicalism-in-itself: Brownlie in the late 1990s
• Radicalism for-itself: the weak version (a new conception of the international arena necessitates a corresponding update of the disciplinary episteme) vs the strong version (a new conception of the legal inquiry is possible, i.e. a new theory of law).
• Examples of weak radicalism from the past: Alvarez, Flory, Cutler, Koh
• Examples of strong radicalism from the past: McDougal, Kennedy, Berman, Chimni
• Intellectual resources for further renewal: opportunities and ways forward
• a further possible example of weak radicalism: international law and the political economy around the Hale-Hohfeld tradition

ii. a further possible example of strong radicalism: dedifferentiation and international law

iii. other examples: posthumanist theory, feminism, neo-/post-Marxism, etc.