The State of the Law and the Law of the State 1

Richard Falk and Friedrich Kratochwil appear to be very different intellectuals. Falk, a graduate of Yale Law School, the former Albert G. Milbank Professor of International Law and Practice at Princeton University and author or co-author of over 20 books, is best known as a public intellectual and political activist, recently as the United Nations Special Rapporteur for ‘the situation in the Palestinian territories occupied in 1967’. He has taken very public and controversial stands on issues like the Vietnam War. Kratochwil, on the other hand, has built his reputation primarily and only as an academic, often cited as one of the Godfathers of the Constructivist movement in the study of International Relations. Kratochwil is not a public intellectual in that he has not taken public stands on controversial political issues. While he has not written extensively on the law or taught in a law school, his Rules, Norms and Decisions, On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Society has often been cited by scholars as a major work in that grey zone between public international law and international relations. ²

Kratochwil was Falk’s first PhD student at Princeton. Given the recent flagrant violations of international law in the Middle East, Iraq, Syria, etc., it is not without interest to examine their recent books to see how they perceive the role of law today coming from different perspectives. While the title of Kratochwil’s book is similar to a Falk 1970 text ³ with ‘World’ replacing ‘International’, the legal scholar is much more attuned to politics while the political scientist is much more attuned to the law. Surprisingly, it is the non-lawyer who writes most favourably about the law and the lawyer who focuses mainly on the role of civil society.

For both, the larger questions involve the role of law and a certain type of quest for order if not world order. Falk is an international lawyer, and in many ways sensitive to the role of law as a ‘gentle civilizer’ in Martti Koskenniemi’s terms. ⁴ As a political practitioner, Falk is the more pragmatic, always looking for ways to see how his World Order Models Project (WOMP) could or should be implemented. Kratochwil, on the other hand, is more critical of both the possibilities of law and the possibilities of a world order. His meditations are profound criticisms of many of the ‘unfolding purposes’ of law and the limits of establishing some form of global order. While known for his work as an IR Constructivist, he is a critical legal scholar in the best sense of jurisprudential argumentation.

A careful examination of the two books invites reflection on the relationship between International Relations (IR) as a field of study and International Law, the latter rarely included in core IR curriculum. Secondly, it invites reflection on the relationship between theory and practice, one of the unfortunate binary distinctions often used in IR terminology. For both authors, International Law – be it treaties, custom or the writings of eminent experts – plays a significant role in international relations. And, surprisingly, the practitioner is highly theoretical and the theoretician highly practical.

To begin with the teacher: it is useful to see how Falk himself sees his role as an activist, specifically in terms of the future of Palestine in relation to his past role and the above events. In his recent Edward Said Memorial Lecture at Columbia University, ⁵ Falk makes reference to Said’s essay, ‘Lost Causes’. Falk’s perspective is ‘that while Israel is winning one war due to its military dominance and continuous establishment of facts on the ground, Palestine is winning what in the end is the more important war, the legitimacy struggle that is most likely to determine the political outcome…It turns out that in recent history it is the side with the greater perseverance and resilience, not the side that controls the battlefield that wins in the end’.

In arguing for the validity of lost causes, Falk is convinced that ‘it is only lost causes that have the empowering potential to address the challenges of confronting humanity’. In other words, he is advocating that ‘burning faith in the unrealizable creates the possibility, however remote, that what seems beyond reach will at some point be reached’. More specifically, and as a good introduction to the book in question, Falk said that ‘the realm of the feasible, which is the theater of everyday politics theorised as ‘the art of the possible’ cannot address the challenges confronting humanity or the fragments of humanity as in circumstances of oppression, occupation, and servitude. From these perspectives, a dedication to what seems impossible from a realistic perspective, is in truth the only realism with emancipatory potential’.

And it is from the perspective of ‘emancipatory potential’ that Falk’s latest book should be read. It is not about lost causes as described by realists, but it is another effort on his part ⁶ to articulate a vision for future governance that will be more humane. Falk contextualises the meaning of defeat and lost causes, such as the Palestinian struggle, in the larger context of historical movements for emancipation.

Although several of the chapters of Falk’s latest book have appeared elsewhere, there is a definite coherence to the development of the ideas presented. The book is divided into three parts. The first relates to the general category of imagining or (re)imagining humane global governance. As Falk has stated and written on numerous occasions, his major concern is with alleviating human suffering. And, his major theme in the process of alleviating that suffering is changing the structure of global governance from a hierarchical system symbolised by the Security Council and the veto power of the five permanent members to a more horizontal system including not just state actors but non-state actors as well. Trained as an international lawyer, he tries to move beyond the state system to global issues and global actors.

In this sense, Falk makes an important distinction between the traditional raison d’état which guaranteed the security of states which were supposed to guarantee the security of their citizens and direct human security as seen in his understanding of humane global governance. While he does not call for directly bypassing the state, or explicitly observes the inevitable withering away of the state, he is primarily concerned with state actions that promote human security more than just state survival. As a non-traditional international lawyer, Falk sees the role of the state only as a vehicle to serve people, not as an entity to foster its own security or the welfare of the very rich. As he writes: ‘The current system of global governance is shaped by the primacy accorded to the security of states, and especially of dominant states, and to ensuring conditions for the borderless efficiency of capital with regard to trade and investment’. ⁷ Falk’s frustration, as he says, is that the traditional state system, wherein leaders are only interested in protecting their interests and those of their states, is incapable of dealing with new issues post-World War II such as the existence of nuclear weapons and climate change. For Falk, ‘There are several tectonic shifts taking place that are shaking the foundations of the world order based on territorial sovereign states and the shared management of the global commons’. ⁸

But, while the theme of moving from state security to human security seems evident, the movement from state-centric governance to humane global governance is much more complicated. What would be the role of the state in a humane governance system? What would be the role of inter-governmental organisations in that system? How would non-state actors gain legitimacy to have some form of governance authority? Who would manage the global commons?

His solution is neither a stronger state system nor strengthening inter-governmental organisations like the United Nations. Rather, he refers to the English School ⁹ which prioritises international society combining ‘a normative order based on international law, diplomatic prudence, and informal linkages of comity’. ¹⁰ This ‘pluralist tilt,’ he maintains, gives the best of both the vertical and horizontal, both a modified role for the state-centric model and an increased role for non-state actors. Falk is convinced that globalisation, in both the economic sense and the 9/11 attacks, cannot be adequately and humanely dealt with under the current structures. References to the extra-legal interventions in Kuwait, Kosovo and Iraq as well as the reactions to the 9/11 attacks are used as examples of the inability of intergovernmental organisations, like the United Nations, to establish its authority to determine the legality of the use of force as well as the United States’ vision of an undemocratic new world order under its domination.

The dilemma in his description of the seven globalisations, as Falk readily admits, is that some of them call for increased state-centric solutions while others call for more horizontal solutions. That is why the complexity of the English School’s notion of international society is appealing in that it seems to include both the vertical and the horizontal. Falk notes: ‘The future of world society…is being forged on this anvil of complex globalization. It is most likely to produce a world order that exhibits a high degree of structural hybridity, combining aspects of pluralist and unitary organizational ideas’. ¹¹

He is concerned with the normative and the practical, the specific problems at the beginning of the 21st century as well as the systemic problems of some type of world order. The systemic threats highlighted would be the spread of nuclear weaponry, climate change and economic collapse. While recognising calls for greater centralised power in some form of world government as well as increased fragmentation below the state level, Falk distinguishes between ‘horizons of feasibility, horizons of necessity, and horizons of desire or aspiration’. ¹² In spite of the continuing prevalence of realist vocabulary, he is optimistic that horizons of necessity will lead to greater cooperation at different levels simply because it is the only way to solve certain current global problems. ¹³ As in his Said Lecture on Lost Causes, Falk believes that ‘if guided by a practical problem-solving perspective, only a politics of impossibility has any hope at all of meeting the challenges embedded in the current global setting’, ¹⁴ with certain examples of when the impossible became reality.

In a rather surprising autobiographical sketch, Falk describes his own ‘long normative march’ away from ‘intellectual advocacy to a greater reliance on activist engagement’. ¹⁵ As both a writer and practitioner, Falk maintains, he has tried to foster global-scale cooperation, to move in Wolfgang Friedmann’s terms, from co-existence to cooperation ¹⁶ in a transformational approach to global politics on many different levels. While not an advocate of world citizenship – one would doubt whether Falk has such a passport delivered by the late Garry Davis – he does advocate loosening the nationalistic bonds of individuals towards a larger, global perspective. He does not see solutions to world problems coming from intergovernmental organisations, but he does not call for their abolition, reinforcing his preference for a hybridity of systems. He rather calls for engaged activists to challenge the state system to better perform, hoping for a kind of check and balance by civil society on the authoritative state structure beyond traditional democratic politics. He is way beyond reforming the Democratic or Republican Party.

But how is one to decide if international law and/or the United Nations are positive or negative sources of geopolitics? On the one hand, Falk is a fervent supporter of global society as we have noted with his references to the English School. In his career, he has even called for a People’s Assembly to function as a sort of non-state World People’s Assembly. ¹⁷ But, as an international lawyer, he is more than aware of the problematique of legitimacy and authority. On what basis do certain groups have the right to act? When he talks of the potential for international law and the United Nations to act for positive normative geopolitics, he evades the tough question as to how one is to decide when and how. To dismiss states and statists is one thing; it is much more difficult to propose a reasonable alternative. The structural hybridity he sees as the future of world society could contain the best and worst of the horizontal and vertical.

Part of Falk’s answer to the hybridity problem is in his discussion of the promise and perils of global democracy. Recognising that major efforts for global reform have taken place after major wars, ¹⁸ his discussion of global democracy includes democratising both international institutions and global society in general. He discusses the dialogue of global democracy in an abstract, normative sense, much less so than his earlier callings for a World People’s Assembly. While he admits that ‘Theorizing at the global level is in its infancy’, preferring to focus on the growing role of democracy, he does not delve into the need for greater clarity about the future role of the state or even the need for world order and governance itself. While he rejects the simplistic anarchy/chaos theory of realists and the limitations of the Westphalian state-centric system even if led by a benevolent coalition of the willing, he is less inquisitive about those who call into question any need for world order or global governance. ¹⁹

This is not a laissez-faire neo-liberal argument, but a serious question about the need for world order/governance in general. Whether one calls for an international order based on a balance of power between states or global governance through more democratised institutions, there is an underlying assumption that good governance will lead to some form of order. If Falk’s response to this argument is that order is better than chaos, then the real problem has been ignored. For beyond the questions of who decides and on what basis is the question of what kind of stability/order is envisioned.

When Falk says that ‘Recent explorations of the anarchist heritage are to be welcomed’, ²⁰ he means the ‘rich tradition…of the relevance of anti-state traditions of reflection and advocacy’. But he does not say how that tradition can be balanced with international law and institutions like the United Nations. In criticising Hedley Bull’s statist preference for order among states and Great Powers, Falk emphasises how modern challenges to that state system have made the international subservient to the global through what he calls normative priorities. The state system as it stands, for Falk, is anachronistic. He calls for ‘selectively reviving the direction and underlying orientation of the tradition of philosophical anarchism’. ²¹ But with what authority and legitimacy can a progressive politics be based on a reliance on non-state actors? To withdraw legitimacy from the state is to create a vacuum that will not necessarily be filled by progressives. While Falk himself hesitates, his use of Hardt and Negri clearly shows his sympathy for ‘an all-out assault on sovereignty’. ²²

At the end of the book, Falk presents a path forward, albeit an intellectual path. Following Derrida’s discussion of the impossibility and interrogations on the Israeli-Palestinian conflict, he asks whether it is time to revive the World Orders Model Project (WOMP) of the mid–1960s. The Project’s goal was ‘to invite representative scholars from around the world to contribute coherent ideas in book length studies of “feasible utopias” to be realized by the 1990s’. ²³ Much water has gone under the dam since then. The effort was abandoned because of a lack of common ground among the participants. Falk proposes to start again given the pressing problems the early 21st century is facing. In other words, he is encouraging a revival of WOMP because of the growing immediacy of world problems. Falk readily admits that WOMP was intellectual, a vision of a political project. Falk is a visionary, and for all his talk of bottoms-up and civil society, the international lawyer’s argument is a very intellectual, rational construction that goes well beyond legal nuances. His vision is an advocacy based on careful, top-down reasoning.

Falk’s student, Kratochwil, is not interested in great macro level schemes or political projects and certainly not a politics of impossibility. He is interested in on what basis, using what language, societal decisions are made in all types of legal jurisdictions. While Falk calls for some kind of world order, Kratochwil examines how any order is developed through decision-making instruments. Kratochwil’s examination is of the very nature of legal thought and jurisprudential argumentation.

Kratochwil’s work, or meditations, is the result of the compilation of several courses he has given, most of them on the law for students of politics. In the preface, the author makes clear that what may seem like autistic meditations are his way of dialoguing about certain problems, just as he understands the law to be ‘an eminently social phenomenon’ (p. xv). The book is not an exercise in professorial exposition, but rather profound reflections that the reader is invited to join on the methodology and purpose of the law in a globalised world. It is at the same time: a series of arguments against the division between law and politics as well as the epistemological project that accompanies it in the social sciences to find ‘true’ knowledge; a series of profound reflections which draw on philosophy, political theory and law to pierce the veil of banalities while avoiding the inflated pretensions of much postmodern writing; reflective in the best sense ²⁴ as it deepens our understanding of the complexities of praxis. ²⁵

Kratochwil’s argument for the importance of his book beyond lawyers and political scientists is that ‘law now provides in large part the vocabulary for contemporary politics’. ²⁶ That is, for example, when talking about distinguishing between combatants and non-combatants or various regulatory mechanisms to control the financial system, references are often made to what are the accepted norms. In this sense, law has become part and parcel of everyday political vocabulary in that certain norms have entered the mainstream vocabulary but not necessarily customary behaviour.

It is the very reality of the large gap between vocabulary and practice and the subsequent growth of a legal industry that purports to imagine that it can resolve the most fundamental issues of how people should live and organise themselves that animates Kratochwil’s examination of what the law is, can be and shouldn’t be. His skepticism that ‘law and “best practices” have become endowed with the aura of universality and necessity’ ²⁷ is part of a questioning of how the law has become a superficial means of problem-solving, much as the field of International Relations moved out of the humanities to the social sciences and hence sought to quantify and resolve human problems through pseudo-scientific exercises like risk analysis and game theory. The certitude of the legal profession, like the certitude of rational choice political scientists, is contrary to the author’s understanding of the complexity of problems that cannot be dealt with in ideal theory, one academic discipline or even certain curricula of inter-disciplinarity.

How to enter into the position of non-certainty? What is its value? Kratochwil is fascinated by the language of law from two perspectives. First, he is convinced that ‘law proceeds according to the communication model of ordinary language’, ²⁸ although his own language is certainly not ordinary. Second, he does not undertake a mere discourse analysis of legal reasoning. In spite of his emphasis on the language of law, he consistently relates the language to that which it is supposed to represent, including questioning why certain terms are used in order to avoid the actual situation they are supposed to reflect.

Most importantly, he is interested in praxis, ‘a reflective mode of addressing practical problems’ ²⁹ as directly related to the concept of law rather than isolated laws themselves or a Grundnorm. In both the communication model of ordinary language and praxis, Kratochwil emphasises how legal reasoning requires a dialectic between facts and norms, how the very perception and description of a fact is influenced by the accepted language of norms involved in the particular situation. Praxis, in other words, is more than practice, more than merely case studies. It involves reflection on the very language used, the very concepts assumed, the interrogation of the gap between language and behaviour, between theory and practice.

Developing his meditations on the concept of law, Kratochwil examines the theory of law – jurisprudence – that while tied to praxis, goes beyond to search for how to investigate rules of rules. Again defying accepted terms such as compliance and sanctions, his focus is on ‘how we actually proceed when we use norms for making decisions and link norms to actions’. ³⁰ Drawing on Wittgenstein and theorists of law and language, he develops the importance of praxis in terms of understanding how rules and practices function. Going beyond his classic Rules, Norms and Decisions, On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Society, Kratochwil sees the language and practice of law embedded in certain historical traditions, a crucial genealogy for legitimacy and authority in international law and the reason why Kratochwil often cites such outstanding international legal genealogists as Martti Koskenniemi.

The question of legitimacy as well as the separation of theory and practice gets played out for the author in a social and political context. Just as laws themselves are crystallised norms, the interpretations of the laws and their legitimacy are also played out in the social and political spheres with new actors, new subjects and new regimes leading to our present legal pluralism. The non-lawyer uses a wide variety of legal cases to back-up his contention that ‘the binary opposition of law/non-law seems ill-suited for managing the growing complexity of contemporary international relations’. ³¹ Because of this complexity, legal experts, scholarship and activists, take on a greater role through ‘norm cascades’, much to the chagrin of Kratochwil in a very pointed criticism of ‘experts’ and ‘enthusiasts’ in relation to humanitarian interventions and ad hoc tribunals.

In this context, he reserves a special critique for human rights. Kratochwil interrogates ‘rights talk’ in its historic context. Because ‘human rights have meanwhile attained the status of religion for the agnostics’, ³² he examines its disciplining and emancipatory effects. As in previous meditations, Kratochwil is withering in his criticisms, but carefully not dismissive. He recognises the importance of rights and the positive role they have played, but equally questions how important were rights during major upheavals such as the American and French Revolutions as sources for action and later laws.

Rather than an abstract, philosophical examination of the meaning of rights, Kratochwil combines historical and linguistic analyses to arrive at a form of, in Jack Donnelly’s term, ‘a social construction of rights’ through politics, with special emphasis on the English and American experiences. He is interested in the relationship between an ideal theory of rights and a theory of authority. As he argues: ‘As with all rights, natural rights are not about the “things” we have, but about the social relations that are thereby mediated and that co-constitute “subject” and “society”. Their validity is not established by correspondence to some (eternal, a-historical) “truths” but by the coherence with other notions and decisions, considered to be right when vetted in accordance with certain argumentative practices and understandings’. ³³

The problem with traditional rights arguments, which are generously footnoted, is that globalisation has increased the right/duty/justice discussion beyond family, clan, local society, community, ethnic group, nation, state, etc., to the entire world. ³⁴ Although Kratochwil lobbies for policies as praxis, he is as skeptical about the efficacy of institutions to solve global inequalities as he is with philosophical arguments about rights as abstract trumps since the inevitable inter-rights conflicts remain. One practical solution he explores between individual and societal rights tensions is the current judicial emphasis on proportionality and balancing. However, he is also skeptical of the role of the judicial as the final arbiter in these matters. For Kratochwil argues that the modern notion of rights has become so expansive that its relations to law or even morality have become tenuous at best.

It is through practical reasoning that he tries to cut through or dissolve (I hesitate to use deconstruct as he does) the inevitable paradoxes that arise in theoretical reasoning. He advocates a ‘diagnostic’, a relation between theory, fact and context. In a world of absolutism and binary distinctions, his plea for situational considerations may seem a call for relativism, but its situational grounding is most realistic as opposed to ideal theory à la Rawls or neo-classical economics. His condemnation of the Responsibility to Protect (R2P) is precisely relevant here since the theoretical foundation of the justification allows no room for contextual considerations. While this may not be comforting to those looking for simple multiple choice type answers, Kratochwil presents cogent arguments to clarify why ‘contestation rather than convergence on one “true” model is to be expected’ ³⁵ from an economic perspective and even in financial markets. Having debunked rights, Kratochwil turns his sights on economists and their migration into law via such people as Richard Posner.

The final meditation is the summary of Kratochwil’s position that there are no simple foundations based on rights, morality, theories of law or economics. In order to prove his point, his perspective is that the various essentialists’ theories all contain paradoxes that they are unable to answer by logical, deductive reasoning. The quest for ‘truth’, or ‘de-paradoxification’, can lead in many directions. He mentions several linguistic ones, but is most attached to practical reasoning, ‘simply examining and abandoning some or all of the commitments that created the contradiction’. ³⁶ His perspective is beyond deconstruction: ‘A “productive” de-paradoxification would entail not only insights gained from the deconstruction, exposing the links that exist among the signs, but from finding new distinctions and new links that “let us go on”’. ³⁷ This method, if one could call it that, rejects the typical establishment of basic principles which are then applied to case studies. ³⁸

Kratochwil proposes to combine whatever principles are involved in the very examination of the problem under consideration. His ‘diagnostic’ approach contextualises both the observer and the situation itself so that the traditional dichotomy between theory and practice converges in a singular activity. Who am I and what is happening here become one and the same question as both are simultaneously situated. His examples of not asking the right question are Rawls’ theory of justice based on the original position and the dominant paradigm in contemporary economics as well as much reasoning in criminal and tort law.

But what does it mean ‘to go on’? Kratochwil is not against ideals as such. He says, quite clearly of his non-ideal approach, ‘A non-ideal approach to acting does take values seriously but proceeds by not providing ideals targets against which the actual order can be assessed, but by identifying specific failures. It diagnoses them, and prescribes a remedy that need not be universally applicable but that might “work” because of “local” or historical conditions. Since the ideals are not conceptual truths that can be postulated or introduced by assumption, they must be derived from actual historical experience and they must be realizable under actual non-ideal conditions’. ³⁹

Kratochwil’s academic vision is finally much more practical than Falk’s activist one. Kratochwil is not interested in great macro level schemes or political projects; he is interested in on what basis, using what language, societal decisions are made in all types of legal jurisdictions. While Falk calls for some kind of world order, Kratochwil examines how any order is developed through decision-making instruments.

But beyond the procedural issues, Falk and Kratochwil are both interested in the ethical, normative aspects of political life. Whether through Falk’s top-down monographs and civil society activism or Kratochwil’s exhaustive analysis of legal reasoning and decisions, the bottom line for both revolves around the ethical organisation of society. Chris Brown mentioned in the late 1990s that issues of international justice have been excluded from political theory. ⁴⁰ Much of the recent study of ethics has focused on human rights and humanitarian intervention and has become a sub-field within IR with its own academic boundaries. These two volumes bring the normative questions of international justice to the forefront through very different forms of investigation. They are, in a sense, highly complementary. The teacher and student are not that far apart. Falk’s system’s hybridity and politics of impossibility and Kratochwil’s diagnostic praxis both try to see how there is and can be justice in a rapidly changing environment. Both are highly situated in practical situations, although they do not lead to very practical solutions. But, then again, in a world as complex as ours today, perhaps beginning to understand how to ask the right questions is a necessary beginning to finding solutions.