When Professor Kennedy of Harvard Law School called for a new style of analysing legal discourses in 1980, the critical international legal studies were launched into a variety of directions, in parallel with the Critical Legal Studies (CLS) which challenged the liberalism of mainstream legal academics.
Martti Koskenniemi became the first scholar to reply to Kennedy's proposition by publishing . This review is intended to take a closer look at the objectives and directions of the critical international legal studies through an analysis of pros and cons of Koskenniemi's book.
Koekenniemi attempted to shed light on the assumptions controlling the modern international legal discourses, and for that purpose, adopted what he called the regressive analysis. which closely reorganizes the history of international law from Vitoria and Grotius all the way to major modern academics.
He maintains that modern academics of international law have in common a liberal view of politics. He critically reviews numerous scholars and theories and uncovers the literal theory of politic hidden in their arguments. He also explains the crisis of identity in international legal practitioners is rooted in the incompetency of liberal theory of politics. What he sees as his utmost task is the disentanglement of liberalist assumptions lying beneath the international legal discourse.
Unlike international politics, international law is an objective existence, whose objectivity is warranted by the normativity and concreteness. If law fails to establish normativity, it is nothing but an apology for the behaviors, wills or interests of States. If law fails to attain concreteness, it is merely utopian. In addition, law is required to produce determinate results and answers. A variety of theoretical attempts to justify determinacy of law have oscillated between apologism and utopianism.
Related to such basic concepts are two types of arguments. One is descending, the other ascending. These types describe two methods of justifying international obligations conditioned by normativity and concreteness. Descending arguments trace down the sources of obligation from something superior to State behaviors or interests, such as justice and concept of common interests, while ascending arguments accept States as given and attempt to construct normative order on the basis of behaviors, wills and interests of States. The former stresses normativity over concreteness, while the latter concreteness over normativity. In terms of descending arguments, ascending arguments are only an apology for States. In terms of ascending arguments, on the other hand, descending arguments are merely utopian.
Koskenniemi identifies four stages of academic trends in international law: early writing, classical writing, professionals, and modern school. The purpose of the categorization is to prove that the opposition between normativity and concreteness which is their common assumption and the source of their theoretical differences, are fundamentally wrong.
From his historical analysis, he draws certain observations on modern tensions between apologism and utopianism. His observations relate to the two strategies to justify the very existence of international law and the four positions concerning the power and scope of international law.
Studying more specific topics of discourses, he shows how the opposition between normativity and concreteness constantly forms controversies. The topics are sovereignty, sources of law, and custom. The discourse on sovereignty reflects the opposition between legal and factual concepts of sovereignty. The discourse on sources reflects the opposition between consensual and non-consensual concepts. The discourse on custom reflects the opposition between psychologism and materialism. Each opposition is dealt with in light of a broader perspective concerning apologism and utopianism.
In this regard, Koskenniemi argues that the ascending and descending arguments are intermingled in the theories and doctrines of international law. He also suggests we read the law backward in order to understand what kind of interests and world order the law tries to justify. Finally, his analysis of international legal projects discloses that international law encompasses both communitarian and individualist projects.
Koskenniemi successfully rewrites numerous theories and doctrinal propositions in terms of opposing arguments, descending and ascending. His excellent description makes it more persuasive that international law assumes liberal theory of politics. His conclusion that international legal projects has been fruitless, however, is flawed in some ways.
First of all, he tends to focus only on limited aspects of international law to architect a grand picture. Second, he is too concerned with discourses and judgements. This prevented him from turning to ordinary applications of laws in every day international life and to the actual actions and reactions of real governments of States. This points to the fact that Koskenniemi considers his book written for legal practitioners. He seems to have wanted his book to produce therapeutic effects on those practitioners who suffer from the crisis of identity of international law. In sum, Koskenniemi advises them to lower expectations for the determinacy of international law.
A close look into Koskenniemi's book indicates that the critical international legal studies, notwithstanding many shortcomings and limits, supplement and balance mainstream legal discourses, and provide theoretical foundations for deeper understanding and reformation of the modern international society.