Gentle Civilizer Decayed? Moving (Beyond) International Law
| Author | Florian F. Hoffmann |
| Date | 01 November 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00779.x |
| Published date | 01 November 2009 |
REVIEWARTICLE
Gentle Civilizer Decayed? Moving (Beyond)
International Law
Florian F. Ho¡mann
n
AnthonyCarty, Philosophy of International Law,Edinburgh: Edinburgh University
Press, 2007, 255 pp, hb d66.50.
The second half of the 1980s saw the publication of two remarkable analyses of
international law, Anthony Carty’sThe Decay of International Law: A Reappraisal of
the Limits of LegalImagination in International A¡airs(‘Decay’)
1
in 1986 and, threeyears
later, Martti Koskenniemi’s From Apology to Utopia: The Structure of International
Legal Argument (‘FA T U ’).
2
When they came out, the world was still just about in
the grip of theCold War. Much of internationalpolitics consisted of theritualistic
posturingof the two political blocks in di¡erent global theatres;and international
law and international lawyers seemed to have been relegated to being smoothers
of their respective prince’s path.
3
Bothworks set out to take issuewith the way the
discipline understood itself and its object, and how it related to its constitutive
other, international politics. And both won their authors considerable acclaim
(or disdain) as (so called) critical legal thinkers. A quarter of a century later, the
world has much changed, yet the fundamental predicament of international law
as diagnosed in these earlier texts has arguably not. So much so that both authors
have felt it necessary to return to their earlier argument in order to restate and
reinforce their point, and underline its continued currency in present day condi-
tions. Koskenniemi has done this, in more or less equal measure, through his
seminalThe Gentle Civilizerof Nations:The Rise and Fall of International Law (Gentle
Civilizer)
4
and a re-edition of From Apology to Utopia, amended by a sizeable Epi-
logue.
5
Carty, in turn, haspublished his Philosophyof International Law (‘Philosophy’)
as an explicit, if quali¢ed, sequel to Decay (Decay). Both these re-visits express
bemusement about the apparent fact that,despite the opening up of legal-political
possibilities after 1990 and the constant broadening of the reach of international
law,
6
the ‘profession’ has continued to engage in what both works denounce in
di¡erent ways as a legal managerialism, full of politics but devoid of political
n
Law Department,London Schoolof Economics and Political Science.
1 A. Carty,The Decay of International Law (Manchester: Manchester University Press,1986).
2 M. Koskenniemi, FromApologyto Utopia:TheStructureofInternationalLegal Argument(Helsinki: Laki-
miesliiton Kustannus,1989).
3 M. Koskenniemi,‘The Politics of International Law ^ 20 YearsLater’ (2009) 20 EuropeanJournalof
International Law 7, 16.
4 M. Koskenniemi,The Gentle Civilizer of Nations: The Rise and Fall of International Law,1870^1960
(Cambridge:Cambridge University Press, 2002).
5 M. Koskenniemi, FromApologyto Utopia:The Structureof International Legal Argument,Reissue (Cam-
bridge: CambridgeUniversity Press, 2005).
6 Koskenniemi, n 5 above, 9.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(6) 1016^1034
commitment.
7
Yet rather than merely reiterate their critique of the ‘profession’,
both have attempted to go one step further by proposing an alternative for inter-
national law ^ albeit in cautious, tentative and sometimes vague terms. This, as
much as their common diagnosis, unites them and singles them out as being
among the (relatively) few who,i n an Arendtian sense, have sought to act on their
critique.
Notoriously, Koskenniemi has done soby,i ntroducing on the margins of Gen-
tle Civilizer what he called the ‘culture of formalism’, a term he himself used with
circumspection and has since tried to avoid, but which nonetheless mesmerised
the discussion and created a focal point for critical thought i n/on international
law. Indeed, it has had repercussions well beyond critical legal circles and has
brought in a much wider international legal p ublic,
8
so much so that it has argu-
ably become a compass for any re£ection on what it is that international lawyers
are, and what, instead, they ought to be doing.
9
Taking his cues from ‘classical’
critical legal thought,
10
he attributes the crisis of international law to the inherent
indeterminacyof (international) legal norms and the structural politicalbias with
which the application of apparently neutral norms is imbued. Both of these he
sees as embedded in the deep structure of international legal discourse, which
unfolds between the apologyof power andthe utopia of such ideals as peace, jus-
tice or equality.
11
Having exposed the deep grammar of international legal dis-
course in FAT U, Koskenniemi then traced the historical actualisation of this
structure in Gentle Civilizer, and found thati nternational law, as a self-consciously
modern conceptual framework, had left behind its utopian origins as a politically
progressive intervention into power politics and had developed steadily into an
apologetic provider of debating chips for the (state) powers that be.With this ana-
lysis, he con¢rmed and deepened insights widely shared among the critical com-
munity, but, importantly, he also uncovered the (potentially) progressive origins
of the (so called) ‘mainstream’.
12
7 Koskenniemi, n 4 above,15.
8Seeinteralia M. Goodwin and A. Kemmerer’s introductoryeditorial ‘The Same Performance, And
So Di¡erent. Marking the Re-Publication of From Apology to Utopia’ (2006) 7 German LawJour-
nal 977, and the following ni ne essays at http://www.germanlawjournal.com/past_issues_archive.
php?show=12&volume=7 (last vis ited July 14, 2009).
9 Koskenniemi concludes the Epilogue of the re-edition of FAT U in this vein, a⁄rming that‘inter-
national law is what international lawyersmake of it’: n 5 above, 615.
10 See originally D.Kennedy,TheRise and Fall of Classical L egalThought (NewYork: Beard Books,1975);
R.M. Unge r,The Critical Legal Studies Movement (Cambridge: Harvard UniversityPress, 1986); and
C. Douzinas,P. Goodrich and G.Hachamovitch, Politics, Postmodernity, and CriticalLegal Studies:The
Legality of the Contingent (Mi lton Park: Routledge,1994).
11 F. Ho¡mann,‘An Epilogue of an Epilogue’ (2006) 7 German LawJournal1100 at http://www.german
lawjournal.com/article.php?id=780 (last visited July 14,20 09).
12 The term ‘mainstream’, or as B.S. Chimni has it, ‘mainstream international law scholarship’ (or
‘MILS’), while often casually used by both its adherents and its detractors,is, of course, theoretically
charged and problematic, as much as its antonym, notably ‘marginalism’, New Stream, New
Approaches to International Law (or ‘NAIL’) etc. Carty uses the term in the title of his second
chapter, and infrequently thereafter. For his purposes, the historical connotation of ‘modern’ or,
indeed,‘classical’ ^ as Jens Bartelson de¢nes the Hobbesian/Vatellian approach^ is probably better
suited to describe the‘mainstream’. There is, aswi ll be discussed brie£y below, generally adegree of
vagueness attachedto Carty’s use of ‘mainstream’/‘modern’/‘classical’, it is sometimes associated also
with positivism, at other times with the ‘practitioner’s approach to international law’. On these
Florian F. Ho¡mann
1017
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(6) 1016^1034
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