Critical International Legal Theory

by

Jason Beckett

• LAST REVIEWED: 17 February 2021
• LAST MODIFIED: 23 March 2022
• DOI: 10.1093/obo/9780199796953-0007

Introduction

Although most writings on public international law (PIL) possess an esprit critique, what distinguishes critical international legal theory (CILT) is a sense that the failings in the project are not marginal or exceptional, but endemic, consistent, and structural. Known as CLS (critical legal studies), NAIL (new approaches to international law), Newstream, or simply “the crits,” this school of thought uses a broad array of techniques to address separate, but interrelated, failings perceived in the international legal project: gender biases; racialized exclusions and differentiations; class, poverty, and exploitation; cultural imperialisms; and hidden violence. The critical project is primarily an ethical one, often conducted analytically and (in a loose sense) deconstructively. Revealing and destabilizing common assumptions and “false” empirical claims, CLS aims to show the cruelty of the current systems of law, and its reign over a world where 50,000 human beings lose their lives, needlessly and avoidably, every single day. From a critical perspective, mainstream PIL appears solipsistic and blind to the plain facts of reality. Thus, CILT tries to focus on empirical occurrences, historical continuities (and ruptures), on a world outside of legal texts and conference proceedings. In this sense, it can very aptly be understood as a successor to the legal realist projects of the early 20th century, focusing on the effects of law—and not merely postulating absences to be filled—but also on the lack of effectiveness in law; for example, the poor need food, not simply a “right to food.” Likewise, in a quasi-Marxist vein, the substantive inequalities disguised and perpetuated by formal equality garner critical concern and attention. CILT is perhaps best understood as a discourse, or movement, about responsibility; about taking responsibility for our actions—and our profession— and refusing to hide behind claims of neutrality, impartiality, expertise, objectivity, optimality, or any other technicalization. The mainstream claims of objectivity, neutrality, and determinacy are not targeted for fun or mischief making, but because they function to disguise or evade responsibility—to focus attention on technical expertise rather than moral accountability. Above all, then, CILT is a progressive discourse, attempting to make real and positive changes in the world of distributions and outcomes, or, at the very least, to highlight and delegitimize the mechanisms that preclude these changes. As a result, CILT lacks any obsessive respect for disciplinary boundaries and the narrowly focused research that they produce and promote.

Precursors

Obviously, CILT did not emerge from nowhere. Its lineage can be traced in several directions: from American legal realism (and to a lesser degree from Scandinavian legal realism and German Freirechtsjurisprudenz) through critical legal studies; from European critical philosophy (especially French post-structuralism and the Frankfurt School’s critical theory) and Marxism; and from postcolonial studies, micro history, and the independence struggles of the formerly colonized states. Thus, the critical project draws from an eclectic disciplinary genealogy, legal realism and the analytic traditions of legal theory, postmodern and post-structuralist theories, postcolonial studies, history, geography, political economy, sociology, feminism and gender studies, and Marxism; critical theory and many other sources inform the CILT canon. Consequently, not all of the works—or even key texts—that one might ascribe to CILT would even be recognized as law or legal theory (let alone as important) by some fellow travelers, and several would almost certainly be dismissed as “beyond the discourse” by many mainstream scholars. This section isolates key texts primarily from the period immediately preceding its emergence as an independent discourse: Lenin 2010 contextualizes and critiques colonialism, and Fanon 2001 essentially founds the concept of postcolonial thinking, which is developed and refined in Said’s seminal book (see Said 2003 for the most recent edition). Nkrumah 1965 and Rodney 1972 focus on the European plunder of Africa, Kennedy 1976 and Kennedy 1979 offer early engagements with the indeterminacy and structured oppression of law, respectively, and Unger 1976 and Unger 2004 show how these have been disguised and perpetuated but can be undermined. Schmitt 2003 offers an exceptionally lucid early critique of the liberal project of world law/governance. Finally, Hoffmann and Vismann 2005 examines the relevance of Derridian thought in international legal theory.

• Fanon, Frantz. The Wretched of the Earth. Translated by Constance Farrington. Penguin Classics. New York: Penguin, 2001.

  The “Bible” of postcolonial studies. The first truly international Third World scholar’s dialectical (and tragically posthumous) masterpiece. An analysis of the systemic, structural, economic, and psychological violence of colonialism. The introduction by Jean-Paul Sartre and the opening chapter on the nature of violence are each classics in their own right. Originally published in 1961(Paris: Maspero).

• Hoffmann, Florian, and Cornelia Vismann, eds. Special Issue: A Dedication to Jacques Derrida. German Law Journal 6.1 (2005).

  An issue that contains fifteen stimulating essays, each contributing to an understanding of Derrida’s complex thinking (and avoiding his often-obtuse written style), but more important, highlighting the relevance of Derridian thought to the understanding of justice, universality (e.g., human rights discourse), and (international) law.

• Kennedy, Duncan. “Form and Substance in Private Law Adjudication.” Harvard Law Review 89.8 (1976): 1685–1778.

  DOI: 10.2307/1340104

  The original critical legal studies (CLS) identification and explanation of radical indeterminacy. An analysis of “the opposed rhetorical modes lawyers use, [which] reflect a deeper level of contradiction,” demonstrating that “we are divided, among ourselves and also within ourselves, between irreconcilable visions of humanity and society, and between radically different aspirations for our common future” (p. 1685).

• Kennedy, Duncan. “The Structure of Blackstone’s Commentaries.” Buffalo Law Review 28 (1979): 211–382.

  Seminal CLS attempt to grapple with the agency-structure debate, and law’s implication therein. Introduces the idea of the “fundamental contradiction” of modern (liberal) thought: relations with others are both necessary to, and incompatible with, our freedom. This basic contradiction lies at the heart of legal indeterminacy and the use of law to legitimate oppression.

• Lenin, Vladimir I. Imperialism: The Highest Stage of Capitalism. New York: Penguin, 2010.

  The foundational text in Marxist analysis of the European imperial and colonial projects. Draws the links among exploitation, profit seeking, internal industrial appeasement, and the economic necessity of colonial expansion, with accuracy and power. Originally published in 1916 (Petrograd, Russia: Zhizn i Znaniye).

• Nkrumah, Kwame. Neo-colonialism: The Last Stage of Imperialism. New York: International Publishers, 1965.

  A classic pan-Africanist critique of the neocolonial project to reconquest Africa after formal colonialism ends. “The essence of neo-colonialism is that the State which is subject to it is, in theory, independent and has all the outward trappings of international sovereignty. In reality its economic system and thus its political policy is directed from outside” (p. ix).

• Rodney, Walter. How Europe Underdeveloped Africa. London: Bogle-L’Ouverture, 1972.

  A searing historical critique of the European project to under-develop Africa, that is to actively plunder and de-develop the African continent. A classic critique of European colonialism spanning the 15th to 20th centuries, a history that is essential to understanding Africa’s contemporary underdevelopment.

• Said, Edward W. Orientalism. New York: Vintage, 2003.

  Said’s thesis, that perceptions of the Orient “created” by European “specialists” and exported to the Orient itself have become more important (in Europe by dint of prestige and the politics of knowledge; outside Europe by dint of European force) than any empirical reality, provides the foundation for modern postcolonial thinking. A vitally important expansion of Fanon’s dynamics of difference.

• Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York: Telos, 2003.

  Schmitt’s final book—his magnum opus—is large and sometimes dense. However, its insights into the structure, politics, motivation, and function of the International Legal Project—the impossibility of neutrality or procedural solution, its hegemonic structures and effects, the falsity of the law/violence dichotomy—augmented by a lucid, angry writing style, render it an exceptional critique of the liberal project of world law/governance.

• Unger, Roberto Mangabeira. Knowledge and Politics. Rev. ed. New York: Free Press, 1976.

  Introduces and develops the key notions of “deep structure” and “total critique,” which will ultimately separate CLS/CILT from the reformist-critical strands of mainstream legal thinking and theorizing.

• Unger, Roberto Mangabeira. False Necessity: Anti-necessitarian Social Theory in the Service of Radical Democracy. Rev. ed. Politics 1. London and New York: Verso, 2004.

  Attacks the basic maneuver of mainstream legal and political theory/methodology: the claim that “there is no alternative,” that a particular interpretation of a particular law is made necessary by extra-interpretative exigencies. This book demonstrates the techniques by which contingent “political” choices are transformed into (passed off as) impersonal necessities. Thus, it demonstrates that all law identification, interpretation, and application are products not of necessity or expertise, but of choice.