Articles
Abstract
`Critical' international legal studies constitute a so-called post-modern approach to international law. This is to assert that the discipline is governed by a particular, historically conditioned discourse which is, in fact, quite simply, the translation onto the international domain of some basic tenets of liberal political theory. It opposes itself to positivist international law, as representative of an actual consensus among states. The crucial question is simply whether a positive system of universal international law actually exists, or whether particular states and their representative legal scholars merely appeal to such positivist discourse so as to impose a particularist language upon others as of if were a universally accepted legal discourse. So post-modernism is concerned to unearth difference, heterogeneity and conflict as reality in place of fictional representations of universality and consensus.
A crucial `battleground' will be the so-called sources of international law. So, for instance, a contested question will be whether general customary law does actually refer to an obligatory consensus among states, a consensus which they regard as productive of effectively constraining legal rules standing above states. The critical approach to international law questions such an understanding of the discipline, i.e. as consisting of an empirical search for actual state consent to effectively constraining norms. Instead the language of international law has to be understood historically as no more than a subsystem of the discourse of liberal political theory. The contradictions and incompleteness of international legal discourse can, therefore, be understood quite easily - post-modern theory does not aim to be obfuscating - if one refers to the dilemmas which are well known to the debate which surrounds liberal theory. Above all, liberal political theory is plagued by the dilemma how autonomous and independent actors can be brought together in support of or under the rubric of some notion of the common good, when authority for a definition of that good must remain with the same autonomous and independent actors.
A major part of this study will be `deconstructionist' in the sense that it will explain what are believed to be path-breaking studies in the breaking down of consistent and persistent attempts by positivist international lawyers to avoid the dilemmas at the heart of their subject, through highly elaborate, apparently technical, recourse to the language of (state) consent as a representational language. There is a contradiction within international legal practice which consists in a virtually unending process of reification of the discourse of state consent into actually existing, constraining rules independent of states, which have only to be identified, for problems of authority in relations between states to be resolved. In practice this leads to sterile and acrimonious attempts to `demonstrate' that `the other side' has `consented' to a viewpoint which one prefers, an elusive exercise, given that the starting point will usually be a conflict of interest which supposes that neither party is `consenting' to what `the other' wishes.
The critical approach, far from decrying the very existence of international law, allows a way out of this impasse precisely because it recognises the character of liberalism as a tradition. It does this by means of two devices. It recognises the absence of a central international legal order as an impartial point to which state actors can refer, i.e. the simple meaning to be given to the phrase, `the disappearance of the referent'. At the same time it favours a mature anarchy in international relations, the recognition of states as independent centres of legal culture and significance, which have to be understood, in relation to one another, as opposing to one another very fragile, because inevitably partial, understandings of order and community.
The role of the international lawyer in such an acutely relativised, self-reflective culture is now, more than ever, crucial. It is his function to resist phony, reified would be universalist legal discourse in favour of the recognition of the inevitably restrictive and exclusive nature of individual state discourses. Above all this calls for the development of a new critical standard which is concerned to penetrate through the cultural symbols of psuedo-universalisation thrown up by individual states to assert themselves against one another. It is not the ambition of the critical international lawyer to substitute another pseudo-impartial legal order, but to facilitate the development of the process of inter-state/ inter-cultural dialogue and understanding which may allow a coming together, however temporary and fragile. What is called for is scholarly work of legal translation, itself attempting to be impartial, to stand outside the circles of meaning projected by individual states.
A theory of legal translation must begin from the realisation of the very partial, multilayered and fragmented nature of international society. It must approach this reality from the basis of the newest insights obtained from legal and cultural anthropology. International society consists, above all, of opposing and self-differentiating national and regional/continental cultural traditions, criss-crossing with both religious and commercial systems, which are more transnational. A tradition is contingent. It depends upon historical and social circumstances for its existence, its shape and its limits. The difficulty for the post-modern international lawyer is that `participation' in a tradition will probably be decisively shaped by a peculiarly Western concept of law which is naturally unsympathetic to such diversity. It is this concept of law which permeates liberal theory and gives it a peculiar universalising pretension. In his Anthropologie Juridique Rouland explains how far a monist western theory of law has worked against pluralism by virtue of its confidence in the idea of the unitary tradition as such.1 This expresses itself, above all, in the compulsive search for and construction of universalist language. For instance such language resorts to the apparently neutral impartiality of impersonal and passive constructions of verbs. At the same time an apparently universal effect is obtained by resort to indefinite pronouns, indicatives, and, above all, to mythical models, such as, in the sphere of private law, `le bon père de famille' which presupposes the existence of a consensus. The formal rigour of this legal language simply conceals a consciousness of the conflictual plurality of the real.2
The first stage in the way of the construction of a theory of legal translation has to be the deconstruction of this universalist compulsion, rooted in the Platonic belief that the human being tends to unity and to the Christian belief that every kingdom divided against itself must fall. In fact the cultural choices of each society are largely attributable to the peculiarities of its history, beliefs etc..3 The task of the legal translator is to search out the roots of the formation of a consensus on the quality of the law, the quality of juridicity within a society at a particular point in time. These limits will always be found precisely at that point which the society considers vital for its cohesion and reproduction. The supreme difficulty is simply that each society has its own manner of thinking and reflecting on the nature of this juridicity. There is here intense danger for international society, because each society will be aware of its identity as differentiated from other societies.4
If law is to take its coherence not from what is imposed from without but from the mutual attraction of elements within society, the key element of law is not submission but identification and differentiation.5 The crucial dimension of the pluralism represented by the transfer of a legal ethnology from traditional societies to modern international society is the recognition that there is no superior power capable of imposing its will to resolve the dangers implied by an immanentist theory of law. This is for Rouland a positive development. Post-modern law turns to the solutions of traditional law, where society affirms itself as made up of groups which cannot be reduced, the one to the others.6 At the same time the task is hazardous. A unitary compulsion in law drives to cover over difference and to insist upon the homogeneity of all experience, resulting in a contrived consensus. However the immanentist approach sets itself the more perilous task of confronting the fact that for societies existence depends not merely on awareness of social identity, but also on the exclusion of other societies as different.
Perhaps it is cultural anthropologists who are most aware of the dangers. Introducing his Writing Cultures: The Poetics and Politics of Ethnography Clifford warns that culture consists of seriously contested codes and representations. It is inevitable that the texts which they produce are constructed and artificial. What has to be read is a reaching beyond the texts of power, resistance, institutional constraint and innovation. As a study of collective arrangements, ethnography is inevitably actively situated between powerful systems of meaning.7 The systematic will be exclusive. Clifford defends the view that `...all constructed truths are made possible by powerful lies of exclusion and rhetoric ... Ethnographic truths are thus inherently partial-committed and incomplete'. While this may evoke a fear of the collapse of clear standards of verification `...a rigorous sense of partiality can be a source of representational tact...'.8
I would insist that each society should have to claim a right of cultural self-determination. Indeed it should be imposed on it, ironical and apparently inconsistent as this demand may sound. There should follow simultaneously both an immanent self-critique and a critique of the Other which can, usually, only exist as self-represented. I have called for what Clifford describes as fictions of dialogues:
...The potential task of legal doctrine is to reconstruct conflict situations in accordance with basic principles of understanding, a theory of knowledge based on the development of argument, rather than a search for objectivity or experience as such. At the very least, this method is appropriate for conflicts rooted in national cultural differences.9
Clifford explains how these fictional dialogues have the effect of transforming the `cultural' text into a speaking subject, who sees as well as is seen.10 Despite the subjectivism which has underlain the tradition of legal idealism, Clifford perceives how dialogical modes do not lead to hyper self-consciousness or self-absorption. In my view it is the pretension of universalist liberalism to restrain polyvocality by giving to one voice a pervasive authorial function. Nonetheless the discovery of the fact of discursive partiality is progressive. It is to recognise that `...there is no longer any place of overview (mountaintop) from which to map human ways of life, no Archimedian point from which to present the world. Mountains are in constant motion '11 Clifford represents the same path to post-modernity in cultural anthropology as does Rouland in legal anthropology when he concludes: `But is there not a liberation, too, in recognition that no one can write about others any longer as if they were discrete objects or texts...?'12