Martti Koskenniemi (Theory)

Any discussion of Professor Martti Koskenniemi's work must begin by acknowledging the fundamental importance of his 1989 book, From Apology to Utopia. It is a brilliant book, a heady and intoxicating book, and I don't think anyone who was developing his or her views on international law during that period could help but be profoundly impacted by it. It was, to my mind, the book on international law that one had to come to grips with in setting out a view of international law during the first part of the 1990s. Recently I took the opportunity to reread much of it, to see how it had aged over the past 15 years. It remains immensely important - I realized that there were immediately usable ideas in it for my own work today, and was pleased to have picked it up again. I think it will be one of a small list of indispensable intellectual works of international law for a long time to come.

If From Apology to Utopia conveyed a sense of wonderfully intoxicating intellectual liberation in the midst of deep erudition, across a variety of fields, it is a fair question to ask what follows. I do not mean this in the sense that a brilliant first book is a hard act to follow - I think it is a perfectly good intellectual project to spend years working out the hard details and defenses of an initially brilliant idea, to respond as it is subjected to criticism once launched. I mean something much more specific in this case; From Apology to Utopia is a work with a devastating critical methodology, and there is a serious question as to where its method permits one to go afterwards. Professor Koskenniemi has serious political and policy commitments - and is admirably engaged in the professional world of academic international law - but it is not very clear to me how they connect with the critical method of his meta-theory. The meta-theory (as with all good meta-theories, it seems to me) does not specify outcomes at the normative level; it seems to me that it lends itself with equal aplomb to a conservative as well as progressivist agenda, John Bolton's anti-international law critique as well as Professor Koskenniemi's own policy views.

(There was also a long discussion at the time of publication as to how From Apology to Utopia fit with Critical Legal Studies during the 1980s; that whole discussion suffered from a peculiarity in that it was never exactly news that international law was also international politics. I think that the label of international law CLS was somewhat thrust upon From Apology to Utopia unfairly; it had a quite different intellectual formation, in part because of differences in the history of international law, and partly because of differences in comparative traditions between the civil and common law, among others. I did not find it a helpful way to conceive of Professor Koskenniemi's work, then or now.)

What followed, however, was a group of articles during the 1990s that seem to me curiously disconnected from the methodology of the 1989 book - certainly that was how they seemed to me when they appeared in the 1990s. They were skillful and learned. An example might be "The Place of Law in Collective Security," 17 MIJIL 455 (Winter 1996), a work amply informed by the history of collective security efforts but also especially informed by a knowledge of how scholars within the debate over collective security and international law saw themselves and their work. Yet in its methodology and conclusions, I found it hard to connect to the far more radical work on From Apology to Utopia; it does not seem to me so very different, in either form or substance, from Michael Glennon's far from radical (or, quite possibly, highly radical) conclusions on the rule of law and Security Council. I may be wrong in not seeing a connection, but that was my sense then and now. At the same time, Professor Koskenniemi was engaged in responding to the on-going discussion of his meta-theory, as in his meta-meta-challenge to the organizers of a symposium on methodology in 93 AMJIL 351 (April 1999), questioning whether the way in which the possible ideas of methodology could be reduced to a kind of cafeteria-style selection. This was certainly worthwhile work, even if it did not always connect with the meta-theory project of the first book. Yet it left a certain question dangling as to whether the meta-theory was destined to be, always, simply a critique, one that not only could not generate a positive project, but one which undercut the very idea of a positive project, at least within the formal terms of international law; there is, in this, a certain sense of sawing off the intellectual branch one is sitting on.

A purely critical method can be a perfectly good intellectual project. But it does suffer from a temptation, over time, especially if it is a highly formal critique, of turning into a sort of schtick – a method than can be trotted out for all occasions, a response that becomes increasingly mechanical over time. I have sometimes wondered if Professor Koskenniemi would fall to that temptation. Happily, however, it seems he has found an answer to this methodological dilemma in his 2001 book, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960. That answer is, in a word, history. This is an extremely elegant but also difficult work, best understood as a series of essays linked by a sort-of conclusion. It has two agendas. The first is to develop an intellectual history of international law, and to offer a critique of that history, its pretensions and assumptions. The second is to offer, on the back of that history of international law’s development as an intellectual pursuit, a sociology of the profession of international law.

The culmination of these two agendas is a sort-of conclusion about the current and future condition of international law – I say “sort-of” not as a criticism, but as a recognition of his highly ambivalent feeling about it – a highly pessimistic account of the independent intellectual content of international law, and yet wanting it to be more than he thinks it now is. This book is much less glittering than From Apology to Utopia; it is also more elegant and darker. It is something of an elegy for something that, on the book’s own argument, is dying if not dead as a formal, classical legal ideal. He wants to resist his own argument and so, in what seems to me a counterargument supported by idealism rather than his own method, he finally urges a positive argument. Professor Koskenniemi is being true to his own hopes, if not to his argument, in launching an apologia in the last chapter for a concrete form of legal analysis that, he says, cannot be captured fully by a formal legal theory such as his own. I find this positive argument difficult to follow, perhaps because coming on the earlier pessimism, it is hard see how it can reconciled to what went before; it seems to me notably weaker than the earlier pessimism. But it is, I think, mostly an expression of hope, rather than the conclusion of rigorous optimism, and I do not at all hold it against the book as a whole.

Reading Professor Koskenniemi’s work in large chunks over the last six weeks, I have come to the conclusion that he is not essentially an international law scholar. He is, rather, a sociologist of the profession of international law, and an intellectual historian of that tradition. His critique of the methodology of international law has led him to consider the methodology of the profession qua profession. This is impressive work, and although at the beginning of my reading I had questions whether the critique had ground to a halt, I think that the new book finds a new body of formal materials – profession and intellectual history – to keep the critique moving forward. It has not turned into a schtick, and I would say shows no signs of doing so. I have many substantive disagreement with his normative and policy conclusions, particularly in security matters - yet he continues to surprise me, with the open ended, supple nature of his thinking - see, e.g., here on the Bush preemption doctrine and the UN Charter. But the fundamental importance of Koskenniemi's work remains his theorizing.