Doing law versus thinking about law: this is the central dichotomy that Andrea Bianchi addresses in his recent contribution on international law theories. ‘As most of the international legal scholarship published nowadays is focused on the technicalities of lawmaking, adjudication and enforcement’ (6) and thus on ‘doing law’, the author’s mission expressed in this book is to ‘get an increasing number of scholars, researchers and students’ to think about law and to realize that there are in fact ‘different ways in which one can think about international law… as a discipline and a profession’ (1). The result is an insightful introduction and inquiry into theoretical thinking in general, and international law theory in particular. Divided into 14 chapters, the book essentially follows a two-pronged approach. After an introductory chapter that outlines the framework for, as well as the approach and methodology of, both the book and international legal theories in general, the first part of the book sketches out and analyses the so-called traditional approaches to international law. On that basis and with this analysis as a reference point, the second part of the book then delves into an in-depth account of twelve selected international law theories. In its first part (chapter 2), the book highlights the ‘way in which international law is traditionally thought about and taught’ (22). It aptly describes common characteristics of these approaches: their tendency to draw boundaries between law and non-law, including between binding and non-binding, lex lata and lex ferenda, law and other disciplines; their understanding of the international law world as a unitary and coherent system and the use of reason as an ordering factor and a frame to filter reality; their tendency to reproduce the ‘official discourse’ and to sanction ‘the practice of those actors who do the law’ (34); their conception of scholars being ‘axiologically neutral’ and objective observers whose evaluations are not influenced by their personal, political or moral convictions; and their preference for not calling into question the ‘objective reality of international law’ (38), that is, the order of the system and its fundamental content. The account of the traditional approaches ends with an observation on contemporary positivist approaches which constitute the linkage to the theories outside of the ‘mainstream’, inter alia by acknowledging the framing of the legal system by choices and biases. In the second part of the book, the author presents his personal choice of international law theories, which he considers to be the ‘most relevant, in terms of intellectual contribution, to the contemporary theoretical debate in international law’ (14). This choice includes: constitutionalism and global governance (chapter 3), Marxism (chapter 4), the New Haven school (chapter 5), international relations and social science methodologies (chapter 6), critical legal studies and the new stream (chapter 7), the Helsinki school (chapter 8), feminism (chapter 9), third world approaches (chapter 10), legal pluralism (chapter 11), social idealism (chapter 12), law and economics (chapter 13) as well as law and literature (chapter 14). Other approaches to international legal theory are not within the scope of the book (this includes, as the author points out himself, natural law theories, legalism and realism (14), but also transnational legal theories). Although this affects the comprehensiveness of the account, it is nevertheless explained by the personalised concept of the book, which ‘reflects [the author’s] own preferences’ (14). Each chapter presents and analyses the respective theoretical approach with regard to its ‘origin or genealogy, its main tenets, and the criticism raised within or outside of the theory itself’ (15). Several chapters focus on individual scholars and an account of their scholarship. For example, the title of chapter 8, ‘Helsinki School’, terminologically camouflages the fact that the chapter is devoted entirely to one scholar. The chapters on social idealism, law and economics, the New Haven school and critical legal studies are also more strongly narrated around particular scholars than, for example, those on legal pluralism, constitutionalism and Marxism. In the spirit of an ‘inquiry’ into different ways of legal thinking, all of the chapters contain a substantive section on the critique that has been addressed in scholarship to the respective approaches. Although it is occasionally unclear whether the author is merely illustrating the critique expressed by other scholars or whether he is adopting a critical approach himself, the underlying impetus allows the reader to discern his perspective. For instance, the critique of a respective theory is given greater attention in some chapters than in others. In any event, the critical reflection on each theory is presented both as an integral element for the understanding of the respective theory and as an object of analytical reflection itself. Less convincing, however, is the structure of the book with regard to the order in which the different theories are discussed (chapters 3 to 14). As the author admits himself, there is only a partial rationale behind this order (14–15). Given the general analytical approach that the book has taken when ‘inquiring into different ways of thinking’, it would have been analytically beneficial had the presented theories been ordered or even grouped according to their claims, approaches and/or methodologies. As the author points out in his introduction, the theories discussed by him are not interchangeable: ‘the differences between them are not that they provide different answers to the same questions. They often pose different questions…’ (15). Highlighting these different kinds of questions and perspectives would have strengthened not only the analytical character of the book, but also its didactic take on ‘thinking about law’. While some theories are primarily concerned with an exercise of ‘unmasking’ underlying power structures of different nature, others engage more strongly with the substance of international law, adopting at the same time normative approaches and visions. Some theories highlight the explanatory values of interdisciplinary methodologies, especially with regard to the empirical dimension. Grouping such similar approaches together would have amplified the insights gained. Overall, the character of the book oscillates between an introduction to, or presentation of, different theoretical approaches to international law, and an analysis and discussion of these approaches. Both the descriptive and the analytical dimension of the remarks are intertwined. Although the illustration has explanatory value, even in the context of a reader’s first explicit encounter with ‘thinking about law’, strictly speaking the book is not an introduction to international law theory. In fact, in most of its chapters, it assumes a certain amount of knowledge about the different approaches that are presented. Only under this condition can the analytical dimension of the book be appreciated to its full extent. In this regard, the book is truly an inquiry into the different ways of thinking. This makes it a beneficial and insightful read for international lawyers who already have a knowledge of one or several of the relevant theories because it not only invites a comparative view of the presented approaches but it also encourages the reader to reflect on the approach(es) to which he/she relates most closely. As a result, the book’s endeavour ultimately goes beyond inviting one to ‘think about law’. It takes the reader along on an attempt to ‘think about thinking about international law’, creating a theoretical meta-level that has an epistemological value in itself. This almost ‘external’ meta-perspective provided by a single author can be seen as one of the benefits that this book offers in comparison to compilations about international legal theory, in which every theory is presented by an adherent to the relevant approach. Although the dual nature between introduction and inquiry might invite a heterogeneous readership as the one addressed by the author—‘scholars, researchers and students’ —it also bears a risk of disappointing some of these groups. For readers who engage with international law theory for the first time, the outline of the substance of the approaches might at times appear very complex and may not always be accessible due to a relatively abridged and abstract presentation. Conversely, where the reflections are more advanced and analytical, a certain background understanding would be required to fully benefit from them. Also, the style of presentation chosen by the author, a narrative style that gives a mostly historical account of how the respective theories have emerged and evolved, requires a patient willingness to engage with the story told over the full length of the individual chapter. This narrative style as well as the slightly cryptic sub-headings of the sections within the chapters do not facilitate a selective access to particular aspects of each theory. At the other end of the spectrum, international lawyers who are well acquainted with the presented approaches would probably wish for a wider discussion of the approaches and the related critique. This raises the question how inclusive this book actually is with regard to its readership. It should seem that it is in fact best suited for international lawyers with an interest in theoretical questions who are familiar with one or several of the presented approaches. Such readers will gain fruitful insights about the approaches they are less accustomed to and maybe even more about the ones they know best. In summary, despite the abovementioned caveats, the book is an impressive outline of thirteen selected international law theories with a compelling descriptive and a sharp analytical dimension. It has the potential to successfully encourage its readers not only to ‘think about law’ but also to ‘think about thinking about law’. © The Author(s) 2018. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org
The British Yearbook of International Law – Oxford University Press
Published: Feb 6, 2018
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