TY - JOUR
AU - Bianchi,, Andrea
AB - Abstract Drawing inspiration from Milan Kundera’s famous novel, The Unbearable Lightness of Being, and Friedrich Nietzsche’s work, this piece encourages us to call into question what we consider ‘weighty’ and ‘light’ in international legal scholarship. Ultimately, it is an invitation to regularly challenge our deeply held convictions and judgments about the value of intellectual and scholarly postures. INTRODUCTION Who says that to worry about book covers or lecture titles is a light occupation? Who says that a grey, anonymous, very rigorous book cover is weightier and therefore more respectable than the creepy Venetian mask used for the transparency book that Anne Peters and I edited a few years ago?1 You have never seen it? Google it and you’ll find out. It might be worth casting it a glance. Likewise, lecture titles are important. They do not simply have to describe what you are going to say: ‘The ILC and state responsibility: a commentary on the draft articles’. They must not be dropped nonchalantly either, as if they did not matter, as if the audience did not matter, as if they could be used in any context and recycled for the next twenty years: ‘Recent trends in investment arbitration’. Titles should mean something to the author, to the audience or both. They should evoke some kind of emotion or intellectual interest. They ought to be carefully chosen and not just fixed at the last minute to account, more or less fairly and accurately, for what one intends to say. But of course, there are people who do neither of these things. There are people like me who may just come up with a title and then decide later what to build around it, which is very light indeed. Nonetheless I thought it might be interesting to explore at the outset the reasons for which I chose this odd title, ‘The Unbearable Lightness of International Law’, for such a formal occasion. And as usual what’s most interesting is the ‘unsaid’, what cannot be figured out by merely looking at the title. So here is the story behind it. When the Berlin Potsdam Research Group invited me to give the lecture in the context of the project they are leading on ‘The international rule of law: rise or decline?’, I almost immediately had this intuition that I put at once into words, the words of the title. And once I have words, once I create words to express intuitions … well that’s for me a serious business.2 Maybe the incipit of St John’s gospel (‘In the beginning was the Word’) is a blasphemous analogy, but it does convey the almost sacred character that I attribute to words when I believe that words are meaning.3 You may think this is a light, un-scientific, un-rigorous thing to do, but believe me it is very weighty. It may haunt you; it forces you to test your instinct, which is a mix of knowledge, experience and inspiration. It does not leave you alone until you find out that the trail that your intuition caused you to follow either leads you somewhere or nowhere at all. In which case you have to start the process of intuition and inquiry all over again. But I am digressing now, and I should not. DYADS: INSTRUCTIONS FOR USE The difficult task consisted in assessing what exactly the intuition was about, and what it was that I found intriguing. I suppose one thing that got me curious was the use of a dyad or pair of opposites: rise and decline. Dyads are frequently used in our discipline. We use them to explain our world, or to construct it if you like. Law versus non-law; hard versus soft; legally-binding versus non-legally-binding; public versus private; subjective versus objective; sovereignty versus world order; consent or voluntarism versus non-derogability of obligation and jus cogens; national versus international; substance versus procedure. It looks like dyads or pairs of opposites are constitutive of our legal world. What an irony—isn’t it?—that dyads and pairs of opposite are also used by critical theory to deconstruct the same world they were supposed to constitute.4 The critical legal studies critique of the indeterminacy of liberal legal theory is based precisely on this. In his ground-breaking study on the form and substance of contract law, Duncan Kennedy maintains that form and substance in their opposed rhetorical modes ‘reflect a deeper level of contradiction’ in legal liberalism, and correspond to ‘contradictory substantive commitments to individualism and altruism’.5 Liberalism is tainted by a ‘fundamental contradiction’, as equally legitimate sets of claims can be made from either term of the dyads, or pairs of opposites that characterize the different domains of the law. Law is no objective solution to such contradictions, and ‘at every level, legal decisions involve value and policy choices’, which legal liberalism denies.6 Martti Koskenniemi has transposed the indeterminacy theory at the level of international law. The thesis about the indeterminacy lying within the structure of international legal argument, as expounded in his seminal work From Apology to Utopia, is relatively simple to grasp.7 The more an argument (or a theory) about international law is concrete and close to state practice, the more it risks being viewed as an apology for existing power structures in the international community. As such it will be seen as a political tool in the service of the most powerful. At the same time the more the argument or theory is normative and removed from the societal context it aims to regulate, the more utopian it will appear. Once again, it will be considered to be a political instrument by virtue of its close link to a notion of natural justice manipulable at will. Politics is thus inescapable and inherent in the very argumentative structure of international law. Indeterminacy is a ‘structural property of the international legal language itself’.8 The reversibility of legal argument is part of the indeterminacy thesis. It means that any international legal doctrine can justify different outcomes. Ultimately, international law cannot lead to any substantive decision that is not the product of a political choice. This is not to say that international law is irrelevant or that it does not exist, as contended by some simplistic readings of Koskenniemi’s early works. Koskenniemi claimed only that international law was not what most international lawyers pretended it was. The fact that different perspectives can be accommodated within it; and that the system as such is non-committal in terms of normative outcomes, as any outcome can be argued thanks to the dyadic structure of international law doctrines, makes international law fit to be used as a language among states negotiating stances and advancing claims in the international arena. So dyads can be used to construct our legal world, to deconstruct it and then, ultimately, to explain the reason for its existence, and arguably of its success. KUNDERA’S NOVEL So, this is the universe that the dyadic structure of the Berlin Potsdam Research Group’s project on the rise or decline of the international rule of law evoked to me. Yet this does not explain why, of all dyads, the one that sprang to my mind was weighty versus light. I had to pursue my introspection further. Inevitably, the intuitive title I had come up with makes one think of Milan Kundera’s world acclaimed novel The Unbearable Lightness of Being.9 The novel is intriguing and causes each of us to wonder as to the meaning of life. Inspired by Friedrich Nietzsche’s idea of life as eternal return,10 the book juxtaposes the alleged heaviness of living as if life were to return ad infinitum and reproduce itself forever, to the lightness of living life as a one-off unencumbered by future recurrences. The life trajectories of the various characters (Sabina, Franz, Tomáš, and Tereza) who impersonate the different philosophies of life in the novel intersect, overlap; they are intertwined and yet distinct in their fundamental characteristics. Although it is difficult to attribute one meaning to Kundera’s novel, I think it’s fair to say that Nietzsche is proved wrong in the novel. There is no eternal return. Life occurs only once, and it should be light. ‘Human life occurs only once’—Kundera writes—‘and the reason we cannot determine which of our decisions are good and which bad is that in a given situation we can make only one decision; we are not granted a second, third or fourth life in which to compare various decisions.’11 But ‘Einmal ist keinmal. What happens but once … might as well not have happened at all. If we have only one life to live we might as well not have lived at all.’12 This lightness then is not positive as the Greek philosopher Parmenides would maintain. In an odd reversal of the common wisdom this lightness is to Kundera not only incredibly weighty, it is just unbearable. But Kundera’s book is not the message.13 It only provides the ‘ostensible motive’ for doing something else instead.14 Let’s talk then about the real motive: to investigate the weighty and the light in international law.15 THE MOTIVE: WEIGHTY AND LIGHT IN INTERNATIONAL LAW Indeed, what prompted me to write was the desire to spur reflection on how we relate to international law, what we consider weighty and light in international law and its scholarly representation.16 What I would like to stimulate and encourage is that which social scientists call ‘reflexivity’. A difficult word to express a very simple idea, that of questioning what one does professionally, why we do certain things in a certain way, the effort to unveil our own biases, theoretical predispositions, personal inclinations and preferences, to make ourselves conscious of the position from where we speak. In trying to be reflexive, one ought to be aware from the outset that the dyad light/weighty is not completely neutral. This is often the case. There is almost always one element of the dyad that is perceived to be predominant, what feminist scholars qualify as ‘manly’, that is apt to convey a sense of rationality, objectivity and logic. I suppose that when we think of international law and its scholarly representation we greatly value the ‘weighty’, as is the case—Kundera writes—with Beethoven’s music: only what is heavy has value.17 Weighty is taken as synonymous with rigorous, intellectually consistent, scientific, serious, committed, having a sense of purpose. We would feel rather offended if a colleague were to qualify an argument of ours, or even worse our scholarly posture as ‘light’, not so rigorous, rhetorical and the like, taken to mean the opposite of serious, rigorous, consistent and so on and so forth. According to Stanley Fish, the whole history of western thought could be subsumed into the opposition between serious and rhetorical man.18 The distinction, originally drawn by Richard Lanham, juxtaposes the category of homo seriosus, possessing ‘a central self, an irreducible identity’, set to discover an objectively existing reality, to that of homo rhetoricus, ‘committed to no single construction of the world’ and ‘trained not to discover reality but to mould it and shape it. Reality is what is accepted as reality’.19 According to Fish, the eternal opposition is well epitomized by Richard Rorty, who juxtaposes two ways of representing truth. On the one hand, truth is ‘a vertical relationship between representation and what is represented’. On the other hand, truth can be thought of ‘horizontally—as the culminating reinterpretation of our predecessors’ reinterpretation of their predecessors’ reinterpretations’.20 In other words, ‘it is the difference between regarding truth, goodness, and beauty as eternal objects which we try to locate and reveal, and regarding them as artefacts whose fundamental design we often have to alter’.21 LAW AS SCIENCE This dyadic mental structure that often coerces our way of thinking about international law has always been present and it has often polarized the debate, and the bias in favour of the ‘weighty’ has often taken up the form of the contention that law is a science. This is what I’d like to talk about next. This is probably the ‘weightiest’ contention of all, to maintain that law, like natural sciences, is set to discover scientifically the immutable universal rules of nature or more aptly to discover law’s basic principles. But law as a science is also a piece of American intellectual legal history. It is the story of Christopher Columbus Langdell, the almost mythical figure who introduced the Socratic method at Harvard Law School. In the second half of the 19th century law—long relegated to the role of a craft or a profession—longed to be admitted into academia and enjoy the prestige of the other subjects taught at the university.22 The contemporary idea of how knowledge could be scientifically acquired was that of an objective, neutral, rational and empirical process that relied on objective data. Logic and syllogisms, inductive or deductive reasoning were widely used instruments to seek fundamental truths. Fundamental truths stood there to be discovered and the Socratic method was a means by which students might discover the fundamental principles of legal knowledge and methodology. The jurisprudential debate in the United States later turned to challenge this view of law as science put forward by traditional legal positivism through the emergence of legal realism. Yale was home to legal realism, a highly diverse movement that fundamentally challenged the traditional idea of law as a set of neutral rules, propounded by positivism.23 This challenge had been introduced many years earlier by Oliver Wendell Holmes Jr’s book, The Common Law.24 Holmes had assuredly stated that law is not a matter of logic, and that ‘[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men’, were far more important than syllogisms to determine the rules of law by which we should be governed.25 Legal realists were united in opposing the idea that law is ‘found’ rather than made. Despite the nuances in their thinking, legal realists arguably concurred in the view that judges, like legislators, had to make policy choices, and that law could be used instrumentally to achieve certain socially desirable ends. The realists, however, lacked any ‘scientific methodology’ to appreciate the soundness, fairness and appropriateness of such decision-making. In other words, no consensus existed on how to determine whether a choice or a decision was good or bad, and what sort of benchmarks should be used for any such determination.26 It is an irony of sorts for us Europeans who always took the New Haven School as the legitimation of politics, that Myres McDougal set out to fill this lacuna by providing a ‘scientific method’ that would allow or facilitate such judgments against the background of a set of values.27 The fate of the New Haven School is too well known for me to dwell any further on it, but it is worth remembering that the New Haven revolution was meant to bring about a revolution by scientific method, and international law was thought to be a science. THE CONTEMPORARY WEIGHTY And nowadays? Well one might think that the illusion that a ‘law as science’ approach could produce the certainty and predictability that its proponents set out to achieve has been dispelled. The falsifiability thesis advanced by Karl Popper,28 and the advances made in the philosophy of science—take just as an example Thomas Kuhn’s The Structure of Scientific Revolutions29—have foregrounded the process and the limits attached thereto of the acquisition of scientific knowledge and set the debate in a different background. Kuhn maintained that the work of scientists is based on paradigms and not on scientific truths. All observation is theory-laden, shaped by a paradigm that is embedded in a particular view of the world.30 The dominant paradigm is a transient truth. Once anomalies are detected, scientists start formulating new theories. Paradigm shifts do occur but they do not connote a linear progress of scientific knowledge.31 They are revolutions interspersed in time. I recently read an essay in which a little-known newspaper article by Albert Einstein (published in the Berliner Tageblatt on Christmas Day 1919) was referenced. Talking about induction and deduction in physics Einstein maintained that … the truth of a theory can never be proven. For one never knows that even in the future no experience will be encountered which contradicts its consequences; and still other systems of thought are always conceivable which are capable of joining together the same given facts. If two theories are available, both of which are compatible with the given factual material, then there is no other criterion for preferring the one or the other than the intuitive view of the researcher.32 And yet the attraction of scientism or whatever method or approach may lay claim to be scientifically founded or empirically tested or both is very strong. This explains the success of Law and Economics (L&E) among international lawyers, for example. The international legal profession has long suffered from an inferiority complex, primarily—if not exclusively—based on the widespread perception that international law is ineffective. The lack of enforcement mechanisms and the difficulty in separating international law rules from moral and social norms are well-known and unwelcome refrains played by colleagues in law faculties and by the public at large more generally. To be able to demonstrate to these sceptical interlocutors that international law can be efficient, and that this can be proven on the basis of a reliable scientific methodology used in economics, is a temptation that few international lawyers would resist.33 Mathematics has come to play an ever-greater role in economic modelling through econometrics. While this is supposed to ensure the scientific certainty of the discipline, one might notice that Einstein—yes, him once again—once took issue with the widespread belief that mathematics can be used to explain reality, by saying that ‘[a]s far as the laws of mathematics refer to reality, they are not certain; and as far as they are certain, they do not refer to reality.’34 There is no doubt, however, that together with other approaches based on social science methodologies, L&E appears to be in keeping with the spirit of the time. A marked cultural trend towards scientism, and a widespread bias in favour of methods that are perceived to be more objective and scientific than others, contribute to making L&E a fairly widely used approach in international legal scholarship. Interestingly, the emergence of a behavioural L&E has broken up the intellectual monopoly of rational choice theory and has brought to the fore the need for more empirical studies to be conducted in the field.35 The claim that scientific hypotheses must be empirically validated, and that theories must be based on established empirical findings in order to be credible, inspires many strands of contemporary international legal scholarship. The turn to empiricism and empirical studies announced a few years ago by Gregory Shaffer and Tom Ginsburg in the American Journal of International Law has taken a firm root.36 In some circles, either you do empirical work, or you do not exist. That’s the only weighty thing to do, the only thing that matters. Not long ago, a colleague and I submitted at an international conference a paper on the role of fear—and, more generally, emotions—in international legal processes.37 In the ensuing debate, I was asked how I was going to measure emotions to substantiate our claim. I said measurement is not my job, as I try and get people to think about law, but my interlocutors looked widely unpersuaded. They still wanted us to do measurement. Likewise, a certain tendency in traditional approaches to look at so-called ‘methodological rigour’ is reminiscent of a scientific approach to law. By ‘traditional approaches’ I mean international law as it is taught in most law schools in most countries I know. Tradition can be understood as a commitment to a certain worldview, which is reiterated in specific communicative situations and handed down from one generation of international lawyers to another. Many of us have been the recipients of such knowledge from our teachers and mentors and have presupposed that it was the truth or, more modestly, what one needed to know about international law.38 Traditional approaches rely on formal pedigrees for establishing the validity of rules, or for explaining their normative force.39 The idea that there are formal law-ascertainment mechanisms to establish how to identify the law is deeply rooted. For this purpose, rules are traced back to a set of formal sources. Traditional approaches often operate as if they were dependent on some benchmarks of scientific validity. Only scholarship that conforms to these is supposed to be rigorous and scientifically founded. They shape legal materials and give them form according to some pre-existing models of legal rationality, rarely acknowledged and somewhat taken for granted. Scientific rigour appears at times less related to the mastery of argumentative technique than to respect for professional hierarchies and doctrinal orthodoxy.40 Yet, scientific rigour is certainly weighty for the purpose of the dyadic structure of our question about what is regarded as weighty in contemporary international scholarship.41 CONTEMPORARY LIGHTNESS If this is weighty, so what is it that counts as light? First and foremost, exercises such as this, in which one tries to draw insight and inspiration from outside the law. I suspect that many would look at such fancies as useless distractions from the lawyerly mission.42 And yet I was somewhat comforted recently to read about the usefulness of the useless. Abraham Flexner’s essay by the same title is a must read for anyone who has an interest to turn common wisdom upside down.43 Flexner was a scientist and the first Director of the Princeton Institute of International Studies, the man who allegedly brought Einstein to America. In his 1939 essay on the usefulness of the useless he showed how important it is to do things that have no immediate utility but pave the way for discoveries and scientific accomplishments at a later stage. Theories and hypotheses, tests and intellectual inquiries, even more simply general education and popular culture may prove to be infinitely useful as they prepare the terrain, the substratum that will make the findings of science and the advancement of knowledge possible. More recently an Italian literature professor—Nuccio Ordine—has written a short pamphlet in French L’utilité de l’inutile,44 later translated into Italian and in 2017 into English,45 in which he eulogises the useless and in a rather erudite essay shows how important the useless has been throughout history for the development of humanity. A must read. But I am digressing again … so let’s make me go back to international law. I suppose that against the background of what is light today, the idea put forward by Koskenniemi that international law is a discourse shaping a social practice might be tainted with lightness as well as his contention that international law in the post-realist era should give up on ‘the sort of universalizing rhetoric and the search for a firm foundation that have characterised modern international law.’46 International lawyers should not look at international law as ‘the application of one unified method on the world’, but rather as a ‘social practice and a professional culture, a conversation about the right thing to do in particular circumstances, constantly harking back to the political, the intimate and the subjective.’47 International law ‘is not the application of ready-made, general rules or principles but a conversation about what to do, here and now.’48 There is no quintessential element or centre of gravity to international law, according to Koskenniemi, other than ‘what international lawyers do and how they think about what they are doing.’49 To take another example of what might count as light, one may think of Gunther Teubner’s definition of law as a communicative process that observes social action under the code legal/illegal,50 another dyad. What determines what is law, and what are the boundaries of legal discourse, is no longer the state and its official law, but a communication process that observes social action under the lens of the legal/illegal code.51 Yet another approach that many would be tempted to qualify as light is the one that identifies law with rhetoric. The fact that the law can only operate rhetorically on the basis of contingencies and ‘particular urgencies’, rather than from neutral principles, would be evidence, according to Fish, of the capacity of the law to address human needs.52 Unlike critical legal scholars, Fish does not rely on the rhetorical character of the law to prove its deceitful nature and untrustworthiness. For Fish, the law is not philosophy and does not require absolute consistency. Indeed, it is precisely the law's inconsistency that allows it to work in specific contexts. The law is a pragmatic project: ‘a rhetorical jurisprudence does not ask timeless questions; it inquires into the local conditions of persuasion, into the reasons that work’.53 James Boyd White has expressed a not too dissimilar view, qualifying the law as a ‘culture of argument’, rather than a system of rules and doctrines.54 Law, in Boyd White’s words, is a way of ‘creating a rhetorical community over time.55 Law is rhetoric and literary narratives can help us better understand that the rigidity of legal categories may have to adjust, or even yield at times, to the pressing needs of changing societal contexts, if they are to discharge the social regulatory function for which they have been created in the first place.56 These are just scattered examples of what one might be tempted to qualify as light approaches to international law. It would be misleading, however, to maintain that any such alternative approach to the mainstream is necessarily ‘light’. I can think of a few gloomy insights that one would not have the temerity to call ‘light’. It suffices to think of Marxist approaches, highlighting the inequalities and injustices of the world, and China Miéville’s definition of the rule of law as ‘the bloody and chaotic world all around us’.57 By the same token feminist and Third World approaches to international law, by stressing the dominant paradigm of male and West oppression, leave little room for thinking of international law—somewhat naïvely—as an emancipatory project aimed at peace and justice. To realize that international law is the problem with its evident gender and western bias makes one wonder whether one can be light at all about it. And what about Philip Allott’s utopian universe premised on the harsh criticism of the un-society of states, otherwise defined as the hofmafia of states?58 There is hardly anything light about his style or his line of reasoning. The qualification of light or weighty has to do also with how seriously those who occupy different professional roles take themselves. It suffices to think of the portrait, or I would rather say the caricature, that some practitioners and academics draw of each other. Practitioners looking down upon academics and maintaining that whatever time is devoted to asking questions of a theoretical nature is time wasted. The only thing that matters is practice, getting legal issues solved. At the same time, academics looking at practitioners with contempt and holding that the practice of law is light when compared to intellectual analysis and systematization of the law, the only weighty thing to do and to accord importance to. Invariably, the characterisation of weighty and light reflects our way of thinking about international law and about ourselves. In fact, it says as much about international law as it says about us, who we are and how we perceive ourselves. But are we even aware of this? Which is better? To be weighty or to be light? Who is entitled to say what is weighty and what is light in the first place? Is the weighty the only deserving stance to take? What is unbearable? The heavy burden of eternal return or the lightness of being and living life as if it were a one-off kind of occurrence? NIETZSCHE UNVEILED The irony of this is that Nietzsche, who triggered the whole debate and inspired Kundera’s novel, mentioned the idea of eternal return in his The Gay Science or La Gaia Scienza (Die fröhliche Wissenschaft) published in 1882. The irony lies in the fact that Nietzsche does not seem to favour ‘weighty’ at all. The title of his book of aphorisms and short essays is quite telling in that respect. The adjective refers to joyful/cheerful/light-hearted/lacking in solemnity and the whole title is a translation of ‘gai saber’, the art of song cultivated and practiced by the troubadours of Provence.59 Just as the troubadours did not have a systematised body of knowledge concerning their art, Nietzsche’s collection of thoughts is meant to convey a certain spirit of lightness to defy the spirit of gravity.60 Gaiety is not merely contentment; it is a rejection of solemnity and gravity and arguably the only way of taking life seriously. Nietzsche’s ambiguity and predilection for lightness comes neatly to the surface in the preface to the second edition of La Gaia Scienza published in 1886. Towards the end of the preface he makes a plea for cheerfulness, art and artists. He writes: There are some things we now know too well, we knowing ones: oh how we nowadays learn as artists to forget well, to be good at not knowing … We have grown sick of this will to truth, to ‘truth at any price’, this youthful madness in the love of truth: we are too experienced, too serious, too jovial, too burned, too deep for that … We no longer believe that truth remains truth when one pulls off the veil; we have lived too much to believe this.61 And then he says: ‘Perhaps truth is a woman … [and] her name is … Baubo’ (ed: the witch that by lifting her skirts and exposing herself makes the goddess Demeter, still grieving for the abduction of her daughter by Hades, god of the underworld, laugh again).62 ‘Oh, those Greeks! …’ Nietzsche concludes: They knew how to live: what is needed for that is to stop bravely at the surface, the fold, the skin; to worship appearance, to believe in shapes, tones, words—in the whole Olympus of appearance! … Those Greeks were superficial—out of profundity! And is not this precisely what we are coming back to, we daredevils of the spirit who have climbed the highest and most dangerous peak of current thought and looked around from up there, looked down from up there? Are we not just in this respect—Greeks? Worshippers of shapes, tones, words? And, therefore—artists?63 That’s where Nietzsche stood … of all people, one of the weightiest and heaviest philosophers of modernity. But maybe this intuition by the very author who instilled the doubt about whether the weighty or the light is more important is also reflected in current conceptions of science. Science is no longer seen as the apprehension of an objective physical reality by induction or deduction, tested by empirical methods or inferred inexorably by a set of axioms and immutable laws to achieve some form of truth. Kuhn’s understanding of ‘science’ comes to mind again. To Kuhn science is not so much a set of fixed propositions about the world or a method in and of itself. It is rather a set of paradigms integrating method, belief and proposition—a ‘doing’.64 This idea of paradigms shaping and embedding the view of the world that science propounds brings to mind Robert Cover’s well-known essay on Nomos and Narrative.65 Cover writes: We inhabit a nomos—a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. The student of law may come to identify the normative world with the professional paraphernalia of social control. The rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important to that world; they are, however, but a small part of the normative universe that ought to claim our attention.66 And then he went on to say, in a much celebrated and oft-quoted passage: No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each Decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live … This nomos is as much ‘our world’ as is the physical universe of mass, energy and momentum … The varied and complex materials of that nomos … present not only bodies of rules or doctrine but also worlds to be inhabited. To inhabit a nomos is to know how to live in it.67 If this is the world we have to learn about, if this is the nomos in which we have to learn how to live, I doubt that the theories and methods we hold as ‘weighty’ nowadays are of much use. BY WAY OF (A LONG) CONCLUSION So, what can I say by way of a long conclusion after having brought you with me on this challenging journey, a journey which is pretty much about who we are and the meaning of what we do. But after all, is this not the very sense of travelling? According to Claudio Magris, the status viatoris, the traveller’s status, is human beings’ existential condition.68 An intellectual journey implies travelling for the sake of travelling towards destinations one does not quite know whether they will ever be reached. It requires calling into question those personal beliefs we have and that—as Stanley Fish aptly put it—most of the time … have us.69 It entails crossing boundaries between disciplines, ways of thinking, different forms of knowledge, but also those remote—sometimes dark—boundaries deep inside our own self that often prevent us from going ahead or even from travelling. To embark on an intellectual journey is a constant attempt to overcome these limits, to cross those boundaries, to find meaning in what we do and in the way we do it. So, what have been the findings of today’s journey? Is international law weighty or light? Is the way in which we look at it, study it, try and make sense of it weighty or light? To go back to Kundera’s book, what is preferable: to be weighty or light? Should we treasure the eternal return, the rise and decline, the shifting stability and the inevitable change and their unavoidable reproduction over time? Should we try and tame them intellectually if not socially? Should we aspire to find more science and more heaviness in what we do? Should we go on to find systems, laws, overarching principles, structured patterns, regularities, returns—be they eternal or more humbly just recurrent ones? Or, rather, should we accept that einmal ist keinmal. Should we accept the contingent character of what we thought to be scientific tenets and immutable doctrines? And would this really be light and as such according to Kundera, in a rather unexpected reversal of perspective and contrary to common sense, unbearable? … I don’t know … which is—please do not laugh—a serious and legitimate epistemological posture. … Even Kundera says at the beginning of his book that the only certainty is that the lightness/weight opposition is the most mysterious, the most ambiguous of all.70 … But of course, I would not have come all the way from Geneva to Berlin if I had nothing to say, and indeed I do have a few insights to offer for your consideration. The first one has to do generally with dyads and pairs of opposites with which I began the journey and of which I am myself an adept. They can be used as a fascinating technique of inquiry into endless different things and they can be put to quite different uses. As we emphasized already, dyads are often not egalitarian, in the sense that there is a bias, either explicit or implicit, in favour of one of the two terms, the ‘manly’ element in feminist language.71 There is no doubt for instance that international legal scholarship will rather treasure the weighty to the detriment of what it perceives to be light. That’s why one needs to be circumspect too. Dyads are also a means by which to draw boundaries, to include and exclude, to determine who is inside and who is outside, between self and other. This is the reason why they are so often used both by traditional approaches to define and classify, to limit the range of the possible, and—paradoxically—by critical legal scholarship that needs the two poles of the dyads to stress the indeterminacy of liberal legal ideology.72 It is an irony of sorts that such dramatically different ways of looking at international law use a similar technique. Although for quite opposite reasons and purposes, they need to portray their object of investigation in Manichean terms, as a black or white issue. What dyads often hide is that there are an awful lot of things between the two extreme poles that might be worth seeing and possibly even exploring. So, dyads can be kitsch at times, as Kundera would say in his novel,73 and as Koskenniemi will later confirm to the benefit of international lawyers at the 2004 inaugural conference of the European Society, even if few people attending the conference understood what he was talking about.74 Yet another insight concerns the fact that the type of pairs we use and define will determine our perception of the world. Most of the time they are also ideologically charged. So also, the distinction that we draw between what is weighty and what is light relies on ideologically-charged assumptions about what international law and its representation by international legal scholarship are or should be about. All the more so if one realizes that oftentimes what is weighty can be regarded as light and vice versa. It depends on the perspective. Perhaps this is one of the most important insights that can be drawn from Kundera’s novel. The charge can be inverted quite easily.75 What we look at as light or weighty can be switched. One may argue that Kundera makes at least two inversions or reversals. On the one hand he seems to be sympathetic with Parmenides and believe that life is light and that there is no eternal return. It does not make sense to be aggravated by the heaviest of burdens as Nietzsche called it. At the same time—and this is the second inversion—Parmenides was not quite right. This lightness is … heavy, much more than weighty. It is actually unbearable! And if I, in turn, could invert the charge, I should say that this to me is an invitation to consider critically that what we take for granted as being weighty actually may not be weighty, but rather light and that’s the problem.76 And one might go as far as Sabina for whom betrayal and breaking ranks was magnificent, just as much as ‘going off into the unknown’.77 Her drama—as Kundera puts it—‘was a drama not of heaviness but of lightness. What fell to her lot was not the burden but the unbearable lightness of being.’78 We should not be unduly constrained by the pressure of having always to conform with self-imposed, rigid intellectual paradigms; by the desire to see recurrences where there are none; by the obsession of demonstrating scientifically when even science doubts the certainty of scientific demonstration; by the game of outwitting our colleagues without caring too much whether what we do is actually intellectually honest; by the fallacy of taking the things of logic for the logic of things. All of this may seem weighty but it’s terribly light, for it is far removed from the legal processes that we have to explain. It is this kind of armchair theorizing that pretends to be weighty and ends up projecting into the practice the ideal of an absolute, rational coherence, detached from reality and removed from the actual practices of the agents that one has to avoid. This is what Pierre Bourdieu qualified as a most serious epistemological error, that of ‘putting a scholar inside the machine’, with the undesirable effect of ‘picturing all social agents in the image of the scientist.79 Just like Tereza taking things too seriously, turning everything into a tragedy, failing ‘to grasp the lightness and amusing insignificance of physical love’,80 some scholars take their intellectual constructs so very seriously and fail to consider that what they think to be weighty might just not be so. The stubborn intransigence and short-sightedness of certain scholarly postures once again remind me of yet another character of Kundera’s novel: the stooped Czech editor who ‘acted as though history were a finished picture rather than a sketch,’ not realizing that ‘[h]istory is as light as individual human life, unbearably light, light as a feather, as dust swirling into the air, as whatever will no longer exist tomorrow.’81 And yet ‘[h]e acted as though everything he did were to be repeated endlessly, to return eternally, without the slightest doubt about his action. He was convinced he was right, and for him that was a sign not of narrow-mindedness but of virtue.’82 And now, if I can revert to that nomos or normative world which we inhabit and in which, according to Cover, ‘law and narrative are inseparably related’,83 I should say that there is hardly any space for a mechanical apprehension of international law’s way of being and practical functioning, hardly something that can be logically deducted from axioms and fundamental principles. At the other extreme, there isn’t room either for merely responding pragmatically to its practical exigencies without worrying about the big picture of the social context and normative order of which such needs are an expression. As Cover argued: Every prescription is insistent in its demand to be located in discourse—to be supplied with history and destiny, beginning and end, explanation and purpose. And every narrative is insistent in its demand for its prescriptive point, its moral. History and literature cannot escape their location in a normative universe, nor can prescription, even when embodied in a legal text, escape its origin and its end in experience, in the narratives that are the trajectories plotted upon material reality by our imaginations.84 Talking of which … who says that imagination is bad for law and lawyers? The power of imagination is crucial to Boyd White to understand the legal world we inhabit85 and to Allott to bring about the revolution in our minds that will lead to the self-ordering of a good society as opposed to the current un-society of states.86 Imagination also helps widen the range of options, keeping a sense of possibility, as Robert Musil so aptly put it in The Man without Qualities:87 Whoever has a sense of possibility does not say, for instance, here this or that happened, will happen, must happen. If he is told that something is the way it is, he will think: Well it could probably just as well be otherwise. So, the sense of possibility could be defined outright as the ability to conceive of everything that might be just as well, and to attach no more importance to what is … than to what is not.88 At the 2017 annual meeting of the ESIL, I spoke for about 10 minutes about the 5 September ICJ decision on the merits of the Marshall Islands case.89 Then I urged the audience to stop looking it up on the Internet through their portable phones. And I confessed that there never was a judgment on 5 September, let alone one on the merits of the Marshall Islands case, which—be reassured—was actually turned down on jurisdictional grounds on 5 October 2016 by the ICJ, as we all know all too well.89 I told the audience that there was no reason to dismiss my words, though. In fact, what I had done was an exercise in ‘counterfactual analysis’, which has a dignified and well-established tradition in philosophical inquiries and historiographical methods.91 Simply put, counterfactual analysis uses ‘what if’ types of reasoning to shed light on what happened (events, different types of occurrences) by juxtaposing it with what might have happened. In assessing what might have happened one considers the different factors that might have played out to cause an event or an occurrence, the circumstances, the context, the behaviour of the actors involved and so on and so forth. Counterfactual analysis helps us see what outcomes were open and what the possibilities were. It allows us to evaluate the choices that were available, the policies that might have been pursued, the courses of action that could be envisaged. Finally, and perhaps most importantly, counterfactual analysis allows imagining alternative realities, plausible scenarios, the range of possibilities that are open to us.92 This in turn may represent an invaluable instrument in terms of future-oriented strategic thinking. Decisions and policies may appear under a different light if only we are ready to consider what the alternatives might be. Counterfactuals are also a powerful antidote against the tyranny of dogma, the short-sightedness of doctrine, and the fatal attraction of unimaginative thinking. Likewise, there is plenty of room for exploring the blurred boundaries of what is and what is not. Think also of Roberto Unger’s notion of ‘false necessity’, where Unger, in a typical critical legal studies posture, maintains that things do not have to be as they are: ‘[t]he illusions of false necessity arise because we surrender to the social world and then begin to mistake present society for possible humanity, giving in to the ideas and attitudes that make the established order seem natural, necessary, or authoritative.’93 Our international lawyerly world is populated by false necessities that we take for uncontroversial and universal truths. But to investigate what might have been and to determine what is hidden behind rules and structures we take for granted, inevitably points to the moment of choice.94 Ultimately, the challenge and value of what we do as scholars—or professional students as I prefer to characterize myself—is to open up the range of options one has to address an issue or to solve a problem, and question the wisdom of our own choices. To increase the number of possibilities inevitably entails emphasising the moment of choice. If law is choice, the consequences of doing something or interpreting the law in one way rather than another ought to be known and carefully assessed. To admit that law does not operate in a vacuum but that it is embedded in the intricately woven fabric of societal relations should make us wary of the political, economic, social and moral consequences of the legal choices we make. In particular we should be mindful that any choice has consequences, and even when we believe that the law does not leave us a choice. To believe that we don't have a choice is, in and of itself, a choice.95 This should carry with it an enhanced sense of responsibility, as inquiring about the sense and the consequences of what one does, and about the reasons for doing it, should produce reflexive knowledge and induce caution in choosing what course of action to take. Both formalism and the view that law ought to be considered as science—and as such operating on the basis of fundamental principles—tend to hide the moment of choice. So paradoxically do post-modernist accounts of law. With their incredulity towards meta-narratives, with their emphasis on the contingent and the strategic value of options and arguments by the players in determining not only the moves but also the rules of play, they risk making the moment of choice invisible or at least less easily detectable. To face choice and freedom of choice may not be easy, and may even entail a sense of vertigo. This very effective metaphor was used once by David Kennedy in a different context to explain the intellectual and emotional impact of legal pluralism on us as members of the profession.96 The essence of his account is that we—as professionals—encounter pluralism when we are trying to say what the law is, and someone else comes up with an entirely different response, and in that moment we realize that he or she may be right. The law could be something other than what we think it is and legal argument is not flexible enough to accommodate such divergent conceptualisations. The realisation that there may be conflicts, gaps, and ambiguities that cannot be fixed however hard one tries can be disconcerting. Lawyers instinctively abhor this situation, and they naturally tend to find order—the weighty—in the name of some hierarchically superior principle or rule or, alternatively, they suggest recourse to a procedural solution or to a mechanism of enforcement. But the emotional and intellectual experience of a dramatically different account of what we do, and what we think, is precisely that ‘moment when’, according to Kennedy, ‘“unknowing” and “deciding” cross paths, when freedom and moral responsibility join hands.’97 It is by becoming aware of having a choice between possible options, by realizing one has discretion, that one experiences a ‘moment of vertigo’. This moment consists of the vertigo of professional freedom ‘when we realize it might well be the other way.’98 When we realize it might well be the other way. Just like in Kundera and Nietzsche … After all, this is the unbearable lightness … the emotional experience we go through when we realize intellectually that international law might not be at all what we think it is. I’d be delighted if this evening … maybe just for a fraction of a second … you experienced that moment of vertigo. It is definitely worth living. Acknowledgement This is the slightly revised and lightly footnoted version of the Thomas Franck Lecture I gave in Berlin on 4 December 2017 at the invitation of the Berlin Potsdam Research Group ‘The International Rule of Law—Rise or Decline?’. Aliki Semertzi’s research assistantship is gratefully acknowledged. Thanks also to the two anonymous reviewers for their insights and useful comments. Footnotes 1 A Bianchi & A Peters (eds), Transparency in International Law (Cambridge UP, 2013). 2 Apparently, intuitions matter in hard sciences too. Consider, for instance, what Karl Popper writes in his The Logic of Scientific Discovery (Routledge, 2002 [1935]) 8-9: ‘there is no such thing as a logical method of having new ideas, or a logical reconstruction of this process’ and then he goes on to quote Einstein speaking of ‘“the search for those highly universal laws … from which a picture of the world can be obtained by pure deduction. There is no logical path”, he says, “leading to these … laws. They can only be reached by intuition, based upon something like an intellectual love (‘Einfühlung’) of the objects of experience.”’ 3 For an example of how one can produce ‘meaning’ and intellectual constructs by experimenting with words, see: A Bianchi, ‘The Act of State, the State of the Act: Judicial Interpretation and Human Rights Enforcement’, in MG Kohen (ed.) Liber Amicorum Lucius Caflisch (Martinus Nijhoff, 2007) 129. 4 A Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford UP, 2016) 80-81, 135, and more specifically, on the Frankfurt School and French post-structuralism, 138-39. 5 D Kennedy, ‘Form and Substance in Private Law Adjudication’ 89 Harvard Law Review (1976) 1685, 1737. 6 Ibid 1687, 1701. 7 M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, reissue (Cambridge UP, 2006). 8 Ibid 44. 9 M Kundera, The Unbearable Lightness of Being, trans. MH Heim (Harper, 2009 [1984]). There are several editions of the novel, but this is the one I will henceforward use for reference. 10 The idea of eternal return, or ‘eternal recurrence’ appears for the first time in F Nietzsche, The Gay Science, ed. B Williams trans. J Nauckhoff & A del Caro (Cambridge UP, 2001 [1882]) aphorism 341. 11 Kundera (2009) 117. 12 Ibid 5. 13 Reference to Kundera’s famous novel title is often made ‘lightly’ to broach ‘weighty’ issues related to gender, race, class and coloniality. See, just as an illustration, AP Harris, ‘The Unbearable Lightness of Identity’ 11 Berkeley Women’s Journal (1996) 207; M McKinley, ‘The Unbearable Lightness of Being (Black): Legal and Cultural Constructions of Race and Nation in Colonial Latin America’, in DM HoSang, O LaBennett & L Pulido (eds), Racial Formation in the Twenty-First Century (University of California Press, 2012) 116. 14 On the notion of ostensible versus concealed motive, or pretext versus cause, see A Bianchi, ‘International Adjudication, Rhetoric and Storytelling’ 9 Journal of International Dispute Settlement (2017) 28, 29. 15 I am indebted to one of the two anonymous reviewers for having brought to my attention H Charlesworth, ‘The Unbearable Lightness of Customary International Law’ 92 American Society of International Law Proceedings (1998) 44. Charlesworth uses ‘Kundera’s playful reversal and undermining of the categories of weight and lightness’ (at 44) to reflect critically on customary international law and on its perception by relevant actors. 16 For an interesting use of the heavy versus light dichotomy as a critical perspective on the intergenerational aspects of the law, see J Jenkins, ‘Heavy Law/Light Law’ 17 Law & Literature (2005) 249. 17 Kundera (2009) 18. 18 S Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Duke UP, 1989) 484. 19 RA Lanham, The Motives of Eloquence: Literary Rhetoric in the Renaissance (Yale UP, 1976) 1, 4. 20 R Rorty, Consequences of Pragmatism (University of Minnesota Press, 1982) 92, cited in Fish (1989) 501-2. 21 Fish (1989) 2. 22 MH Hoeflich, ‘Law & Geometry: Legal Science from Leibniz to Langdell’ 30 American Journal of Legal History (1986) 95, 118. 23 Bianchi (2016) 91. 24 OW Holmes Jr, The Common Law (Little Brown & Co, 1881); OW Holmes Jr, ‘The Path of the Law’ 10 Harvard Law Review (1897) 457. 25 Holmes (1881) 1-2. 26 Bianchi (2016) 92. 27 EV Rostow, ‘Myres McDougal’ 84 Yale Law Journal (1975) 704, 714-15. 28 Popper (2002) 17, 57. 29 T Kuhn, The Structure of Scientific Revolutions, 3rd ed. (University of Chicago Press, 1996). 30 According to Kuhn ‘[t]he operations and measurements that a scientist undertakes in the laboratory are not “the given” of experience but rather “the collected with difficulty.” … [T]hey are selected for the close scrutiny of normal research only because they promise opportunity for the fruitful elaboration of an accepted paradigm. Far more clearly than the immediate experience from which they in part derive, operations and measurements are paradigm-determined.’: ibid 126. ‘To see oxygen instead of dephlogisticated air, the condenser instead of the Leyden jar, or the pendulum instead of constrained fall, was only one part of an integrated shift in the scientist’s vision of a great many related chemical, electrical, or dynamical phenomena. Paradigms determine large areas of experience at the same time.’: at 129. 31 Linearity is rather provided through science textbooks, in which ‘[p]artly by selection and partly by distortion, the scientists of earlier ages are implicitly represented as having worked upon the same set of fixed problems and in accordance with the same set of fixed canons that the most recent revolution in scientific theory and method has made seem scientific. No wonder that textbooks and the historical tradition they imply have to be rewritten after each scientific revolution. And no wonder that, as they are re-written, science once again comes to seem largely cumulative’: ibid 138. 32 AM Adam, ‘Farewell to Certitude: Einstein’s Novelty on Induction and Deduction, Fallibilism’ 31 Journal for General Philosophy of Science (2000) 19, 35. In the 2002 Routledge Classics edition of Popper’s The Logic of Scientific Discovery, another letter of Einstein to Popper is included—published for the first time in this edition—in which Einstein writes that ‘altogether I really do not at all like the now fashionable “positivistic” tendency of clinging to what is observable … and I think (like you, by the way) that theory cannot be fabricated out of the results of observation, but it can only be invented’: Popper (2002) 482. 33 Bianchi (2016) 263. 34 See Adam (2000) 19. 35 Bianchi (2016) 285. 36 G Shaffer & T Ginsburg, ‘The Empirical Turn in International Legal Scholarship’ 106 American Journal of International Law (2012) 1. 37 A Bianchi & A Saab, ‘Fear and International Law-Making’ (paper delivered at ‘Cognitive Sociology, Culture, and International Law’, iCourts, Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen, 28-29 April 2017) (paper on file with authors). 38 Bianchi (2016) 22. 39 Ibid 24. 40 Ibid 36. 41 This is also the reason why ‘levity and humour’ are not very popular in legal discourse. They are considered to be ‘irrational’ and therefore un-rigorous ‘because they refuse to recognize the solemnized site of rational worship.’: P Goodrich, ‘Lex Laetans: Three Theses on the Unbearable Lightness of Legal Critique’ 17 Law & Literature (2005) 293, 305. 42 Although it generally holds true for any engagement with any other discipline, this is particularly the case with literature. In traditional legal circles literature is widely perceived as ‘a far-removed discipline of little or no relevance at all to law’: A Bianchi, ‘International Adjudication, Rhetoric and Storytelling’ 9 Journal of International Dispute Settlement (2018) 28, 32. 43 A Flexner, ‘The Usefulness of Useless Knowledge’, Harper’s Magazine, No 179 (June/November 1939) 544. 44 N Ordine, L’utilité de l’inutile (Fayard/Pluriel, 2016). 45 N Ordine, The Usefulness of the Useless, trans. A McEwen (Dry Books, 2017). 46 M Koskenniemi, ‘International Law in a Post-Realist Era’ 16 Australian Yearbook of International Law (1995) 1, 19. 47 Ibid 17. 48 Koskenniemi (2006) 544. 49 Koskenniemi (1995) 17. 50 Teubner defines legal pluralism ‘no longer as a set of conflicting social norms in a given social field but as a multiplicity of diverse communicative processes that observe social action under the binary code of legal/illegal’: see G Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’, in G Teubner (ed.), Global Law Without a State (Dartmouth, 1997) 3, 14. See also G Teubner, ‘The Two Faces of Janus: Rethinking Legal Pluralism’ 13 Cardozo Law Review (1992) 1443, 1450-51. 51 Teubner (1997) 15; Teubner (1992) 1452. For an application of this theory to international human rights law, see A Bianchi, ‘Globalization of Human Rights: The Role of Non-State Actors’, in Teubner (ed.) (1997) 179. 52 G Olson, Justifying Belief: Stanley Fish and the Work of Rhetoric (State University of New York Press, 2002) 69. 53 S Fish, ‘The Law Wishes to Have a Formal Existence’, in There’s No Such Thing as Free Speech … and It’s a Good Thing Too (Oxford UP, 1994) 141, 171. 54 J Boyd White, ‘Law as Language: Reading Law and Reading Literature’ 60 Texas Law Review (1982) 415, 441. 55 Ibid. 56 This is particularly apparent when law is conceived as a rhetorical and social system; see Boyd White (1982) 444: ‘To conceive of the law as a rhetorical and social system, a way in which we use an inherited language to talk to each other and to maintain a community, suggests in a new way that the heart of the law is what we always knew it was: the open hearing in which one point of view, one construction of language and reality, is tested against another. The multiplicity of readings that the law permits is not its weakness, but its strength, for it is this that makes room for different voices, and gives a purchase by which culture may be modified in response to the demands of circumstance.’ 57 C Miéville, ‘The Commodity-Form Theory of International Law: An Introduction’ 17 Leiden Journal of International Law (2004) 271, 302. 58 P Allott, The Health of Nations: Society and Law Beyond the State (Cambridge UP, 2002) 380. Allott borrowed the term hofmafia from A Wheatcroft, The Habsburgs: Embodying Empire (Penguin, 1995) 248. 59 B Williams, ‘Introduction’, in Nietzsche (2001) vii, xi. 60 Ibid x-xi. 61 F Nietzsche, ‘Preface to the Second Edition’, in Nietzsche (2001) 3, 8. 62 The italicised text was originally a footnote added to Nietzsche's text by Williams. Ibid 8 note 6. 63 Ibid 8-9 (emphasis in original). 64 Kuhn (1996) 10-11. 65 RM Cover, ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative’ 97 Harvard Law Review (1983) 4. 66 Ibid 4. 67 Ibid 4-6 (emphasis in original). 68 C Magris, L’Infinito Viaggiare (Mondadori, 2005) 2. 69 S Fish, ‘Consequences’ 11 Critical Inquiry (1985) 433, 443 (emphasis in original): ‘A theory is a special achievement of consciousness; a belief is a prerequisite for being conscious at all. Beliefs are not what you think about but what you think with, and it is within the space provided by their articulations that mental activity—including the activity of theorizing—goes on. Theories are something you can have—you can wield them and hold them at a distance; beliefs have you, in the sense that there can be no distance between them and the acts they enable.’ 70 Kundera (2009) 3. 71 Bianchi (2016) 193; MJ Frug, ‘A Postmodern Feminist Legal Manifesto (An Unfinished Draft)’ 105 Harvard Law Review (1992) 1045, 1047. 72 Bianchi (2016) 24, 138-39. 73 In Kundera’s novel, ‘Sabina’s initial inner revolt against Communism was aesthetic rather than ethical in character. What repelled her was not nearly so much the ugliness of the Communist world (ruined castles transformed into cow sheds) as the mask of beauty it tried to wear—in other words, Communist kitsch. The model of Communist kitsch is the ceremony called May Day… . The feeling induced by kitsch must be a kind the multitudes can share… . The brotherhood of man on earth will be possible only on a base of kitsch. And no one knows this better than politicians… . But whenever a single political movement corners power, we find ourselves in the realm of totalitarian kitsch. When I say totalitarian, what I mean is that everything that infringes on kitsch must be banished for life … In the realm of totalitarian kitsch, all answers are given in advance and preclude any questions. It follows, then, that the true opponent of totalitarian kitsch is the person who asks questions.’ Kundera (2009) 130-33 (emphasis in original). 74 M Koskenniemi, ‘International Law in Europe: Between Tradition and Renewal’ 16 European Journal of International Law (2005) 113, 121-22 will later explain: ‘A student once pointed out to me that towards the end of The Unbearable Lightness of Being, Milan Kundera puts forward a theory of political kitsch. What is that theory? There is a totalitarian kitsch of the Grand March, exemplified in the May Day parade in Moscow, but also in the raised fists of European intellectuals at an anti-American rally … The distinction between kitsch and not-kitsch is also the same as that between false and genuine universalism. The international community appears often as Kundera’s Grand March—kitsch to the extent that it is invoked to defend the easy truth, the nostalgic feel for an abstract mankind, and to curtain off death [ed: this is a direct reference to Kundera’s identifying the true function of kitsch: ‘kitsch is a folding screen set up to curtain off death’ [Kundera (2009) 133] … International law is burdened by kitsch. What kind of kitsch? Well, for example, jus cogens and obligations erga omnes, two notions expressed in a dead European language that have no clear reference in this world but which invoke a longing for such reference and create a community out of such longing.’ 75 Charlesworth (1998) 47: ‘it is worth remembering that Milan Kundera twists and collapses easy categories of weight and lightness, implying that, at the end of the day, they may not be very different.’ 76 Similarly, A Baker Benjamin, ‘Syria: The Unbearable Lightness of Intervention’ 35 Wisconsin International Law Journal (2018) 515, arguing that the apparently weighty character of the legal justification for military intervention in Syria (humanitarianism and failed state doctrine) is in fact ‘legally deficient’ (besides being morally untenable), and therefore light. 77 Kundera (2009) 46. 78 Ibid 64. 79 Bianchi (2016) 7; P Bourdieu, ‘The Scholastic Point of View’ 5 Cultural Anthropology (1990) 381, 384. 80 Kundera (2009) 73. 81 Ibid 118. 82 Ibid. 83 Cover (1983) 5. 84 Ibid. 85 J Boyd White, The Legal Imagination (University of Chicago Press, 1973). 86 P Allott, Eunomia: New Order for a New World (Oxford UP, 1990). A powerful call is made for humankind to self-constitute itself on a new basis, in order to generate eunomia as the ‘good order of a self-ordering society’, and ultimately, as the ‘ideal order of self-creating humanity’. What is required is a self-willed change in human consciousness. ‘A revolution, not in the streets, but in the mind.’: at 404, 411, 257. 87 R Musil, The Man Without Qualities, trans. S Wilkins & B Pike (Picador, 2011 [1930-43]). 88 Ibid 11. Or turning back to Kundera, ‘Our dreams prove that to imagine—to dream about things that have not happened—is among mankind’s deepest needs’: Kundera (2009) 29. 89 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom), 5 October 2016, available at http://www.icj-cij.org/files/case-related/160/160-20161005-JUD-01-00-EN.pdf (last visited 12 November 2018). 91 See the seminal work of David Lewis: D Lewis, Counterfactuals (Blackwell, 1973); D Lewis, ‘Causation’ 70 Journal of Philosophy (1973) 556. More generally, see D Lewis, Philosophical Papers: Volume II (Oxford UP, 1986). 92 According to historian Jeremy Black, ‘counterfactualism is a tool, capable of use in many contexts, rather than a position or a school of thought… . The discussion of these options in terms of counterfactuals is both central to the evaluation of choices and policies, and natural. The capacity for choice itself is a characteristic of the human species, with the developed frontal lobes providing the opportunity for the exercise of this facility. One of the defining human characteristics, and a fundamental human activity, is also the ability to imagine things otherwise than they are.’: J Black, Other Pasts, Different Presents, Alternative Futures (Indiana UP, 2015) 3-5. 93 RM Unger, ‘Introduction to the New Edition’, in False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (Verso, 2001) xvii, xx. 94 A Bianchi, ‘Choice and (the Awareness of) Its Consequences: The ICJ’s “Structural Bias” Strikes Again in the Marshall Islands Case’ 111 AJIL Unbound (2017) 81, 84. 95 Ibid 87. 96 D Kennedy, ‘One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream’ 3 New York University Review of Law and Social Change (2007) 641, 644. 97 Ibid. 98 Ibid. 89 A Bianchi, ‘Back to the Future—The Untold Stories of Obligations Erga Omnes’ (Paper delivered at the ‘Global Goods, Global Commons and Fundamental Values: The Responses of International Law’, European Society of International Law Annual Conference, Naples 6-8 September 2017) (on file with author). © The Author(s) 2019. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - The unbearable lightness of international law
JO - London Review of International Law
DO - 10.1093/lril/lry030
DA - 2018-11-01
UR - https://www.deepdyve.com/lp/oxford-university-press/the-unbearable-lightness-of-international-law-S5U08oHQrs
SP - 335
VL - 6
IS - 3
DP - DeepDyve
ER -