We have come to Albany both to celebrate and to think ahead. What has been the past – and what will be the future – of “third world approaches to international law?” Over the last day, we have heard bits and pieces – short advertisements really – from an incredible range of scholarly projects. I am honored by the opportunity to speak this morning, although, as you will understand, there is something odd about a white guy from an elite institution offering a “keynote” at such an event.
Let me begin this morning with thanks. I am proud that my own recent projects --- to think in a new way about war as a legal institution and about poverty as a legal regime --- stand on the shoulders of work done by TWAIL. I have learned a great deal from so many of the people in this room, and of course, from our host, James Gathii, whose seemingly unlimited scholarship has taught me a great deal about the legal and institutional obstacles to economic development and policy autonomy across the Third World.
Reflecting on the legacy and future of TWAIL is also an opportunity to say a few words about the scholarly project itself, the endeavor to think, to imagine, and to write a new international law. And to do so as peripheral intellectuals – or intellectuals from the periphery.
I tend to think about projects like the TWAIL in several registers – as intellectual efforts to intervene in disciplinary knowledge we have about how our society is organized, as personal projects of identity, assertion and community, as political efforts to write a new world into being, and institutional efforts to routinize, establish, reproduce and extend those political, personal and intellectual projects. I’ll say something this morning in each of these registers.
Legal intellectuals, whether from the periphery or not, have repeatedly tried to come to grips with the way the world was governed and to write a new politics into being. Just ten years ago next month, I ended the decade long collaborative project we called the ‘NAIL’ -- to develop New Approaches to International Law. For at least a century international lawyers have been remaking international law, and at each moment, the periphery has been as central as the center – peripheral intellectuals, peripheral dominions, doctrines for peripheral management, from piracy to terrorism.
Indeed, if Tony Anghie is right, as we heard last night, the whole international law project was forged in the colonial encounter, preoccupied not with managing relations among equal Westphalian sovereigns, but with managing domination across the cultural divide between Europe and the Rest.
Little in the TWAIL has been as canonical – or as hotly contested – as this thesis of Tony’s. TWAIL, we might say, was forged in Anghie’s encounter with the history of international law.
As an intellectual movement gains its footing – finds itself able to hold a conference like this one celebrating more than a decade of its own accomplishments, it is terribly hard to remember how little we still know about its central concerns – how much work remains to be done. That, I guess, is my first message – even after ten years, the intellectual work has only just begun. The political questions remain open. Our collective institutional strategy is open for reimagination.
Take Tony’s two big questions –
n What is the continuing significance of the colonial project for the structure of global law and political life?
n What was not solved by transforming the dominions into formal sovereigns and ensuring their participation in the institutions of intergovernmental life?
A traditional view lives on in TWAIL --- international law was made in Europe, for a European reality. When brought to the periphery it fit poorly and made a mess of things. Tony’s work sparked a second strand --- international law made in the mess of the colonial encounter, tainted at the root by projects of misunderstanding and domination, a stain which can be uncovered across the range of international law’s doctrinal preoccupations, wherever they occur.
But these are not the only views out there. Perhaps there are two international laws --- one for Europe, and one for the Rest, one of cooperation, one of control, as Annelise Riles and others have argued.
I wrote something along these lines thinking about the relationship between European Union law and the international trade regime from the perspective of Central and Eastern European nations. But then I also wrote something about the law of war being forged in the colonial encounter. And about the mismatch between European doctrines and the rest of the world’s problems. It turns out we don’t yet even agree with ourselves.
And there is more. Perhaps there are many international laws, struggling for dominance, each the project of different intellectuals differently situated, in the periphery, in the center – as the periphery in the center. Like many of us, I have also written in the voice of legal pluralism. And if this is a promising avenue for research, are the differences cultural? Or political – or economic? Is it there a Latin American and Japanese and European international law – or are they all cultures of cosmopolitanism with different political economies?
Or take Tony’s second issue – interpreting the post-colonial state. Was self-determination a triumph or a booby prize? For some TWAILers, the third world state is part of the problem – a kleptocratic remnant of colonial rule and merchant capitalism. We should empower the base. For others, the erosion of the developmental state is a tragedy, brought on by an unholy alliance of international financiers and the human rights institutions of global civil society.
We will need many more books before we have sorted out the relations among these quite different ideas. But in another sense, TWAIL offers less a canon of answers to Tony’s questions, important as they are, than a model for a kind of cognitive and political project for a scholarly generation. An effort to know and to change the world – and also a project of identity – a way of being an intellectual, a critic, a colleague, a law teacher.
TWAIL arose at a moment – among a generation of scholars in rebellion against two traditions. Against the tradition of third world engagement with the international legal order associated with decolonization, the UN and the politics of the nineteen sixties and seventies. But also against the tradition of third world professional assimilation and intellectual invisibility associated with the eighties and nineties.
Intellectually, the third-world-ism of decolonization was an unstable affair. Preoccupied with statehood, sovereignty and participation in international institutions --- but also with antiformalism, social solidarity, abuse of right and all the other antinomies to formal sovereign entitlement. Antiformalism for the world, formal sovereignty and non-intervention at home. But if it was intellectually shaky, the third worldism of the sixties and seventies seemed politically solid. The third world was rising, OPEC had challenged the West, the US was losing in Vietnam. So many new states, emerging into a bipolar world --- for an instant an astonishing heterogeneity seemed united as a periphery. The South, the poor, the non-aligned, the peoples of color.
Riding this tide, third world legal intellectuals tamed political resistance into institutional participation and intellectual method. The antiformalist social offered professorships in the North, just as a surging General Assembly offered an entire generation employment in the shadow world of intergovernmental diplomacy – even seats on the World Court.
TWAIL’s moment was altogether different. The south, the poor, the non-aligned, peoples of color – they no longer lined up. There was a south in the north, a north in the south. There were new – and old – sectarian issues in the academy. Was Latin America part of the third world – was its history, its intellectuals, of concern to TWAIL? Were women? What about Finland? Or South Asia, or Asia. As a scholarly movement, TWAIL negotiated all these issues in its early years.
At the same time, what had seemed politically promising had been defeated. States, third world or otherwise, were no longer central – culture and identity were more confused. Economy seemed more significant than polity. TWAILers would need to learn about economics and private law and legal history – and it would be a different economics and private law and legal history from that which undergird the New International Economic Order. The new players would be educated in different things than their predecessors in the 60s and 70s – in the critique of the American liberal empire and its legal consciousness.
We should acknowledge that writing is a deeply personal affair. To write is to wish. The wish to understand the world, to change the world – or perhaps to submit and withdraw. The wish to be in the world. For everyone who came and went through the TWAIL, the story will be different. Different projects of identity, struggle, rebellion – and of professional advancement, recognition, engagement.
As TWAIL arose, people of color – foreign people of color – in American graduate programs were writing dissertations and seeking to enter the American and British law teaching markets in record numbers. There was LATCRIT. And critical race theory. And critical legal studies. TWAIL would have to paddle in their wake.
At the same time, most mainstream legal writing was losing its purchase on politics, and had technical mastery and cognitive control as its only project. It was the work of experts, combing out the strands of their expertise, confident that their work reveals only the strangled project of dispassion and objectivity. A status quo project of enhanced management by a moderately reformed regime.
TWAILniks would have to navigate in their world, get jobs in their world, just as their predecessors in the seventies had needed to navigate an intellectual world splintered by the Cold War and dominated, in the West, by the intellectual embellishment of embedded liberalism.
As TWAIL began, two American liberalisms strode the academy triumphant – the transnational liberalism of the Clinton administration, human rights and transitional justice, and the economic neo-liberalism of the Washington Consensus. In the South, the aspiring legal intellectuals who would become the TWAIL confronted two unhappy alternatives. On the one hand, the old language of self-determination, cultural pride, delinking from globalization and the world economy and the new world order, all in language willfully disengaged from the way the world had changed since Bandung – from all the failures of third world elites, from the reality of the debt crisis and the rising liberal ascendancies in the North. On the other hand, obsequious assimilation and enthusiastic embrace of the “pragmatism” and “modernism” of one or the other of the dominant liberal and neo-liberal recipes.
The question was this --- could TWAILers find a new way. Could they develop – and learn - a critique of liberal ideas, neo and otherwise, not rooted in third world self-determination? Were there alternatives to neo-liberalism and just plain old ordinary liberalism? CLS and NAIL and LatCrit and Critical Race Theory – and the critical traditions of western social and political thought – seemed aimed at the same target. Could third world states be engaged, critically engaged, without harnessing oneself to the regnant ideologies and institutions of the “international community?” Might even human rights, to coin a phrase, be part of the problem?
Over the years, TWAILers have struggled with these issues in various ways across a wide range of legal fields --- international law, comparative law, economic law, development policy, human rights and more. It is an astonishing body of scholarly work, taken as a whole.
Looking back the work, I think TWAIL’s great questions in all these fields have been --- and remain --- three:
n How is domination and inequality – cultural, economic, political – reproduced in the world?
n What does law have to do with it?
n And, what might a legal intellectual in a peripheral location --- culturally, historically, economically, politically – do to fight back?
TWAIL’s future is tied up with whatever new answers new participants give to these questions. And of course, the political context has altogether changed. Neo-liberalism and the euphoric international liberalisms which followed 1989 are over. The world is again divided --- or fragmented. Neither the Europeans nor the Americans seem to have a clue what to do. And the Americans have again lost a war in the periphery. Is it back to Bandung? Forward somewhere new? The intellectual, political and institutional setting is altogether different from 1997 – or 1987 or 1967.
Before answering, we must acknowledge that we still know astonishingly little about how we are, in fact, governed globally. Or about how domination and inequality are legally reproduced. If sovereignty is the name of power, where does it reside? How has it become right? How has it become knowledge?
Before we settle on a strategy, we need better maps of the mentality and machinery of the global establishment. Of course TWAIL will not be the only project underway. It will have competitors, mapping the new world in new ways. The NYU project on global administrative law is in many ways a model – finding governance in new places. There are others --- the European search for the constitution of the world in every imaginable regime, or the re-imagination of technical regulation as ‘new governance’ and ‘soft law’ and ‘comitology.’ Indeed, more or less every 30 years since 1870 international lawyers have derided the maps they inherited, looked out at a novel world, and called for a new international law.
The old maps were always the same --- formal, out of touch, fixated on sovereignty, on states, on diplomatic courtesies. Polemics for the new were also similar. New actors, new topics. Municipal and international law blended together. Public and private law intermingled. Formalism replaced by functionalism and pragmatism and realism. Law and politics blended together in a new institutional practice of management. A universal law displaced by multiple perspectives, overlapping regimes, by legal pluralism. States disaggregated into interests and actors, sovereignty unbundled into rights and duties. All this was new – in 1920, in 1950, in 1970, in 1990. If it again seems new in 2007, we must also understand how renewal repeats. We will need to figure out just what is new in the new. Perhaps what is new is precisely our awareness that renewal repeats.
Nevertheless, our best maps continue to elide the centrality of inequality and domination in the world system. Elide it in a fantasy of Westphalian sovereign equality, or institutional transformation or progressive development or transitional justice or economic development or legal failure and law reform, and so forth. Just writing the history of domination and inequality – and their erasure – into the maps legal intellectuals have already produced will be a great work.
I have been working on a map of expertise about global political economy and development ---- the expertise that renders the emiseration of so many in a world of so much seem a matter for policy, management, adjustment, rather than revolution. It turns out that world poverty is not only a lamentable fact --- it is also a legal regime.
We need to get used to thinking of things we don’t like – poverty, war – not as problems or facts or challenges, but as legal regimes, generated and sustained by our baseline legal rules and concepts.
Bargaining power is distributed by law – between nations, but also across production chains. When small or medium sized enterprises in Vietnam bargain with globally networked purchasers – how does law allocate their powers? Who captures the rent? After all, not only LDC governments seek rents. So does Walmart and Toyota and Chevron. If antitrust or contract is the new constitutional law, what is our industrial policy?
The alchemy by which inequality becomes routinized through the vernacular of experts and hardens as law it tough to unravel – but the effects are everywhere on view.
And if we are governed by experts, by economists and lawyers and policy mavens – to whom do they report? Where can their power be contested? Perhaps the Delaware law of corporations is our global constitution, allocating power between the two branches of global government – shareholders and management. Government by experts is not just a matter of technocracy or big science. Citizens and politicians have become experts in their own right, and speak the vernacular of law and science and policy management with native fluency. We will need a better sociology of regulation and expertise to understand just how global industries maneuver for advantage in a networked world of rules and institutionalized policy management. Perhaps we should map the global “automobile” or “pharmaceutical” regimes, rather than continuing to draw – and undraw and draw again – the lines between national and international, public and private legal orders.
Our new maps of power-made-known-as-right will also have to embrace fragmentation and pluralism.To navigate in a broken world we will need a broken map. We will need to look for cracks, moments of resistance, fortuity – slippage between our legal imagination and the unfolding of social life. We should celebrate breaks in the frame, ruptures, openings ---- particularly if we want to look at rulership with the eyes of a Chinese textile worker or Nebraskan Walmart shopper, and not only those of a humanist intellectual, aspiring expert, or cosmopolitan technocrat.
Moreover, legal pluralism today is not only a fact about the world – it is also a professional experience. The experience that things don’t add up, that coherence fails, that incommensurability must be acknowledged. We can experience pluralism whenever there are conflicts, gaps or ambiguities in the law and when it suddenly appears to us that they may not be reconciled. We have to choose. There is a moment of vertigo --- and of freedom, professional freedom. Legal pluralism can be the doorway to the human experience of responsible freedom --- or it can become the path to technocratic specialization.
Like ancient cartographers, we will need to preserve a space on our maps for terra incognita --- because we don’t know how everything fits together, how the regimes add up, or who, ultimately decides in the exception. And we will need a space for drawing the dark sides of benevolent power and right order.
Even in TWAIL, I have rarely heard a group of international lawyers discussing a global problem without confidence that the whole thing would be far better handled were there more international law, more international lawyers, better compliance. But everywhere global public capacity is not only too anemic or irregular to confront the stakes of global poverty, conflict, injustice. It is also the instrument of that poverty, those conflicts, and that injustice. As a result, our shared dreams have become a dangerous professional conceit.
To write a new international law, we must come to the rulership of today’s elites with outrage – including the rulership of international lawyers. It is here that TWAIL’s third question retains its power for me. What can be done?
In my own recent work, I have explored two related dangers in our professional habits as international lawyers. First, the tendency toward idolatry, towards enchanting the tools and norms and institutions and practices of international law while remaining marginal to power, standing on the sidelines “speaking truth.” For this, the traditional remedy is pragmatism. But the second danger arises from pragmatism, from participation in governance, with all the tools of policy analysis, instrumental reason and savvy evaluation of the costs and benefits that entails. Humanitarians have slipped into the war machine, where they sit with soldiers, deciding whom to shoot. For this, the traditional remedy is a return to ethics – and the dangers of idolatry. There is no recipe or institutional roadmap to avoid these parallel difficulties. What we can hope for is a kind of professional, political and moral vigilance, discipline, and renewal. A posture for the humanitarian professional which is neither ethically nor instrumentally self confident, yet prepared to accept responsibility for the damage his or her initiatives will cause.
Things like “governance” do change. In Foucault’s terms, there was the gallows and then there was the prison timetable. Or, if you prefer, for a long time an “economy” is an input-output cycle to be managed, harnessed for national growth or development, and then suddenly an “economy” is a market of individuals responding to price signals, allocating resources to their Pareto-Optimal destinations through exchange.
New ways to govern, new meanings for “politics,” new identities for subjects and rulers, for law, for the state, and for things like “culture” --- all these things have to be thought up. And when they are built, their power must be wrought into knowledge. Making new maps is something a legal intellectual can do to fight back.
Sometime between 1789 and 1900 – and as late as 1960 for much of the colonial world – governance was consolidated on a global basis around the national sovereign state. People were organized into territorial states, granted citizenship, and government was defined as what national public authorities did. Building a national public politics across the planet had a strong emancipatory dimension – slaves, women, workers, peasants, colonial dominions obtained citizenship in relationship to the new institutional machinery of a national politics.
The twentieth century also remade global politics – it was no longer all nations all the time. Law infiltrated the political. Sovereignty, like property, was disaggregated into bundles of rights. Corporatism, administration, public/private partnerships, management – boundaries eroded, merged. Federalism, power sharing, subsidiarity, devolution. Interdependence, social solidarity, policy management. A politics of governments replaced by a process of governance --- here too there were emancipatory elements.
But this is not the end of the story. Nor of emancipation --- for each of these projects did, in the end, have a dark side. How might we remake global politics for the 21st century?
One thing does seem clear – the tradition of “constitutionalism” is not up to the task – it is the quaint wish that fragments of public capacity and the good sense of today’s elites might be re-described as constitutive of a fantasy community. The conflicts are too real, the status quo too unstable, the institutions far too wedded to the details of technical management to constitute a new politics. The same, I’m afraid, may be said about transparency, accountability, participation, good governance or an improved administrative process. They may remake management of the regime, but not the politics of the globe.
There are lots of ideas lying around --- utopian heuristics for a politics remade. Perhaps the new politics will be about experimentation and institutional diversity, protected by a re-activated sovereignty in the middle powers of the South. Might the nation-state – or the global city -- be strengthened as a shield for the weak, be made reliable as a guarantor of policy diversity, as an arena for democratic political life? Or perhaps the new politics will be about mobility, citizenship no longer the correlative of incarceration in this or that imagined community. Perhaps there will be a grand bargain linking free trade in goods, free movement of capital, with free movement of persons – not only in Europe, where it is easy, but globally.
Or perhaps a new politics will be about building a transnational political will. In such a vision, sovereignty might become open-ended promise of inclusion, rather than the boundary of an exclusive community. Imagine confronting the third world not only with a network of bilateral investment treaties, tying their regulatory hands, or with a path to membership in the EU for nations along the boundaries who can swallow the whole acquis – but with much more. The promise that Alberta might do a deal with Montana, New York with Dubai, Palestine finding a place in the European home.
Many have proposed that the new politics be all about contestation. Perhaps citizens will not only be informed, consulted, their polling data serving as base line for expert management. Perhaps they will also decide. Even in the exception. International policy juries – citizens empowered to decide for war or peace, poverty here or poverty there.
All these may all be terrible ideas. But politics will be remade over the next century. International law may get the chance to mop up ---- but I would rather we seized the opportunity to be present at the creation.
What would such a project look like for TWAIL? These are terribly difficult questions of power – not only in the past and present, but future. What is TWAIL for – where is it going? As a project of identity, writing asks -- who am I with? Who am I against? What am I for? A new international law – for the South? For the Walmart shopper in Nebraska, the auto worker in Thailand? What about the pensioner in Germany?
One possibility – writing in the tradition of TWAIL, we could make the existential choice to view these as pre-revolutionary times. We might chose to write against the continuity of modest reform and against yet another repetition of renewal by the international legal establishment. In the name of a vision of a world about to be transformed.
What, after all, will happen if the third world succeeds? Might every nation simply become Sweden? The hundreds of millions of Chinese and Indian individuals who have emerged from poverty into our industrial present will change our lives. In one view, speaking loosely, but in the starkest terms, with economic globalization and the continued loss of public capacity, large swaths of the world will, in twenty years, have whatever social security system, whatever environmental regime, whatever labor law, whatever wage rate prevails in China.
But economic failure is a parallel danger – the revolution of rising frustrations among the hundred of millions of individuals who can see in, but for whom there seems no route through the screen except through rebellion and spectacle. After all, all of us in the professional classes of the North confront the rest of humanity with our entitlements and lifestyle. And with our sentimental talk about the “international law” and the “international community.”
Putting these threats together, we confront an accelerating social and economic dualism. A rumbling fault line between two global architectures, between an insider and an outsider class, between leading and lagging sectors, both within and between national economies and political units.
I doubt it will be sufficient to cast our lot with the third world over the first. That is just not the line along which the world will come apart. Perhaps we should be asking – who should inherit the failure of the Washington Consensus and the liberal American empire? The collapse of state socialism was inherited by the banks, the Americans, the international financial institutions. But after them, who?
The world political situation seems far more open to me than it did when TWAIL was coined. Then it seemed at once provocative, ironic and strangely nostalgic to march beneath the banner “Third World.” Upward and downward spirals, sectoral dualism, splitting across political economy of the world – how should we name to fault-line?
Worthy projects of intellectual identity were easier to come by in the days of post-colonialism. Interrogate the terms and traditions through which third world intellectuals in the first world had been rendered invisible, or seen but not heard. The trajectory for third world legal intellectuals today seems far more mixed, as the structure of global university life has shifted. We are here – you are all here – employed in the world’s most elite university system.
It is, in the end, difficult to think of a political or intellectual project for TWAIL separate from the very particular institutional situation in which we all find ourselves. We are not developing ideas for presidents – nor drafting political programs of action for political parties. TWAIL is a scholarly movement, a network of intellectuals. What are we for is a quite different question – what can we be for, how can we be for it – how will we build and sustain this project, intellectually, politically?
Speaking roughly, there are at least five university worlds. There are the great American universities, broken off from American secondary education, stretched into a competitive pyramid, increasingly serving as intellectual portal for the elites of the world. There are the European universities – flattened, despairing of their ability to serve even their own populations in an ever more competitive first world, struggling to figure out how they might become in the terms of one EU directive after another, “centers of excellence.” There are university systems of India and China, expanding by leaps and bounds, limited only by the bottleneck of available faculty.
At the same time, scattered across the globe, isolated from one another, you can find hundreds of promising departments and programs and initiatives, experimenting with what higher education and research might become – private institutions where public has been the norm, interdisciplinary institutions where the disciplines rule
And we know there are also dozens of countries and regions and classes whose universities are simply failing. Which are slipping further and further away from the worlds of science and research and higher education.
As legal intellectuals, what is our project in such a fractured world? The choices are more complex, the possibilities for institutionalization more numerous. It is astonishing – and thrilling – to see so many people here today who have entered the North American legal academy – who are thriving, exercising leadership, setting the intellectual and scholarly agenda. What of our colleagues in the other university worlds? How can they be engaged, recruited, understood?
What about the institutional and personal reproduction of the TWAIL. How is the global legal intelligentsia now organized? Institutionally, what nodes and base-camps and toe-holds have TWAILers found in the professional world – are they sustainable, reproducible? Intellectually and ideologically – how is TWAIL reproduced? Can those who have learned from TWAIL repeat the lesson – can people who have been recruited in turn recruit? Are you building and replenishing your audience as fast as your footnotes?
In its next phase, TWAIL faces lots of questions and challenges --- a great deal remains open. We do not yet know, for example, how will TWAILers will confront hegemony within the Third World? Not only of elites and minorities and majorities and religions, but also, of course, of India and China, South Africa, Brazil, Iran and Russia in the world system. Nor have we understood – or much disputed among ourselves – what might be progressive practices in the third world. What should come after the human rights movement which has suddenly come to see so passe?
There is, in short, much to do – intellectually, politically, institutionally. Or is this Fin de TWAIL? Should we look rather to its successor networks and the new projects of its veterans? I carry no brief for TWAIL’s future – it will continue, or it will dissipate, those who have been active may fade, may reenergize, new people may grab the banner and carry it in new directions. That is all in the nature of such things.
Untimately, I think TWAIL’s ability to reproduce itself, extend itself, renew itself, is tied up with the reproduction of other networks and ideas and ideological positions. With postmodernism and progressivism. With the after-NAIL and the after-CLS and all the predecessor and successor networks. In this sense, we are all in this together – and I am not at all sure what may come next.
But I am sure the questions which have moved the TWAIL remain every bit as vivid – and unanswered – as when we began. So we know, at least, where we might begin.
But I have gone on long enough –we have one another, and a full program ahead today. My thanks to the TWAIL for all you have accomplished – I hope we continue to share the avocation to exercise the powers of knowledge.