What is Critical Research in International Law? Celebrating Structuralism

Abstract

This essay is a friendly response to the colloquium on From Apology to Utopia (FATU). It restates the way critical research examines the exercise of power through analysis of (legal) language. Attention is directed especially to the empowering and enchanting effects of the law. The main point has to do with the continuing power of structuralism as a form of legal analysis.

Killing Qasem Soleimani: International Lawyers Divided and Conquered

“…Doctoral students are warned against gearing research towards clarifying the substance of a primary rule of international law, as such research would run the risk of being undercut by equally convincing argumentation -the law is indeterminate after all. 182 That message is ubiquitous and research that plainly describes, elucidates or specifies the law is often considered outmoded, erroneous, and, frankly, just not that interesting. 183 Be that as it may, this article takes the position that the current state of affairs is no cause for celebration either.…”

Cognitive Biases and International Law: What’s the Point of Critique?

“…Duncan Kennedy has shown for private law how decisions oscillate between party autonomy and mandatory rules, and David Kennedy as well as Martti Koskenniemi have done so similarly for the structure of international legal argument, which they see to be caught between apology (linked to state consent) and utopia (linked to some transcendent idea of justice). 41 The main techniques for exposing the indeterminacy of specific choices have been those of structuralism, 42 in particular deconstruction-peeling off layers of argument to expose the arguably groundless choice between antagonistic principles and to retain a sense that a choices could also have gone the other way. In Jacques Derrida's drastic formulation, deconstruction is freedom, the possibility to take full responsibility for one's decisions that cannot be derived from anything or anywhere.…”

New International Legal Positivism: Formalism by Another Name?

“…118-119. 162Koskenniemi (2016), p.734. For a more comprehensive analysis of From Apology see, noting that this quotation from Koskenniemi is included (at footnote 241) in that article.…”