Law, Teleology and International Relations: An Essay in Counterdisciplinarity

433080
2011
IRE26110.1177/0047117811433080KoskenniemiInternational Relations
Article
International Relations
Law, Teleology and

26(1) 3–34
© The Author(s) 2011
Reprints and permission: sagepub.
International Relations: An co.uk/journalsPermissions.nav
DOI: 10.1177/0047117811433080
Essay in Counterdisciplinarity ire.sagepub.com
Martti Koskenniemi
University of Helsinki
Abstract
Interdisciplinary approaches often bemoan international law’s lack of theoretical sophistication
and naïve utopianism. Instead of offering effective tools of governance, it seems committed to
outdated ideas about an international public realm and a dubious teleology of progress. This
essay – given as the E. H. Carr lecture at the University of Aberystwyth in 2011 – reviews
efforts to reform international law into a science and a more efficient instrument of international
rule. Such efforts have been a part of international law’s internal development but their lack of
success depends on a mistaken view of the field as a ‘discipline’ − a set of theoretical or technical
propositions. This essay defends a view of international law as an argumentative practice in which
political claims are defended and attacked, rather than as a governance tool or institutional
blueprint. At its worst, law may buttress bureaucratic privilege. At its best it may offer, for a
cynical world, a vocabulary for imagining better futures. It may also sharpen political thought and
strategic awareness, but it cannot replace them.
Keywords
argumentative practice, E. H. Carr, history of international law, interdisciplinarity, international
relations, international rules, Immanuel Kant, teleology
I The persistence of teleology

In the context of compiling a history of international law historiographies I recently came
across an 18-volume Histoire de droit des gens et des relations internationales published
by the Belgian law professor François Laurent (1810−87). The work was published at a
time when international law was being created as a professional practice in European law
schools and among a Europe-wide network of political and legal activists. Laurent was
Corresponding author:
Martti Koskenniemi, University of Helsinki, Yliopistonkatu 3, 00014 Helsinki, Finland
Email: Martti.Koskenniemi@helsinki.fi
Downloaded from ire.sagepub.com at CARLETON UNIV on June 12, 2015

4 International Relations 26(1)
one of these men.1 He had begun his enormous project in 1851 with the first volume
dealing with the ‘Oriental’ empires, followed up by volumes on Greece, Rome and
Christianity.2 For the fourth volume Laurent composed a new preface in which he
recounted that his colleagues had contacted him with doubts about the title of his under-
taking: was this a history of international law or a history of humanity? A point well
taken. From that volume onwards, the instalments had two title pages. One contained the
old reference to the ‘History of the law of nations and international relations’, another
denoting ‘Études sur l’histoire de l’humanité’ – studies on the history of humanity. This
made no difference to the contents, however. For Laurent, and to the international law-
yers of the period, the history of international law simply was the history of humanity −
more specifically, as Laurent wrote, ‘l’histoire de l’humanité considérée au point de vue
du progrès qu’elle accomplit vers l’unité’.3 History led from separation to unity, its
intrinsic teleology expressed by and accomplished through international law.
This idea of progressive history was not only widely shared by men of Laurent’s
sensibilities at the time, but has continued to animate the international legal project up
to our days. It gives pride of place to law in history: according to this view, world his-
tory is but the raw material to which law gives meaning and direction by pointing to its
telos in a normative goal, understood as a humanity united under universal law. In a
recent sketch of the history of international law, the late Antonio Cassese characterized
the legal modernity of the post-Cold War era in terms of the ‘interpenetration and cross-
fertilization’ of the different areas of international law. What this showed, in his view,
was that:
at least at the normative level the international community is becoming more integrated and –
what is even more important – that such values as human rights and the need to promote
development are increasingly permeating various sectors of international law that previously
seemed impervious to them.4
For Cassese and countless other international lawyers, the field in which we have made
our professional careers is more than just another technical discipline. It possesses an
inbuilt moral direction to make human rights, justice and peace universal. To ‘do’
international law is to operate with a teleology that points from humankind’s separa-
tion to unity. From Bilateralism to Common Interests – the title of an enormous recent
collection of international law essays – rehearses over again that cherished interna-
tional law topos.5 Whatever differences may exist between international lawyers, we
tend to be united in our understanding that legal modernity is moving towards what an
influential Latin American jurist labelled in 2005 a new jus gentium uniting individuals
(and not states) across the globe, giving expression to ‘the needs and aspirations of
humankind’.6 The anti-state rhetoric of ‘international community’ is everywhere:
employed both as a descriptive device, explaining and rendering intelligible certain

developments in international legal doctrine and in international legal institutions as well as
embodying a normative vision of what international law should increasingly (although not
exclusively) be about.7
There is today even an urgency in this vocabulary, prompted by concerns raised in the
register of ‘globalization’. An ever intensifying ‘process’ is being witnessed that leaves

Koskenniemi 5
‘no choice’ to the actors − a ‘juggernaut’ to borrow a term from Anthony Giddens. In the
search for sociological language to describe what is happening, international lawyers
have learned to quote Niklas Luhmann to bear witness to the way territorial systems
are being replaced by intrinsically global, functional ones.8 All this operates to make
international law, too, a global law that both illustrates and brings to consciousness the
fact that humanity is one.
If international lawyers are about the only group of human beings who still use the
vocabulary of progress, it is because of our commitment to something like the view
expressed by Immanuel Kant in his famous 1784 essay: ‘The Idea for a Universal
History with a Cosmopolitan Purpose’. Here Kant assumed that history conspires with
nature so as to lead humanity ‘from barbarism to culture’, by which he meant the move
to a ‘cosmopolitan system of general political security’.9 The principles of operation of
this system would be articulated by law: namely, a ‘perfect political constitution’ that
would lead the nations from their ‘barbarous’ freedoms to a ‘great federation’ whose
security would be derived from a ‘united power and the law-governed decisions of a
united will’.10 There has been much debate on what precisely Kant meant by this. What,
for example, was the sense of the ‘unsocial sociability’ that he assumed would push
even reluctant nations to see the virtues of integration under a constitution?11 Some
have regarded this as hopelessly idealistic while others have seen there the outlines of
the dark shadow of European imperialism – not unjustifiably, as Kant himself assumed,
in a strictly matter-of-fact way, that Europe ‘will probably legislate eventually for all
other continents’.12 But I think Kant’s teleology must be understood neither as a natural
force nor as a definite institutional proposal. It was a (‘transcendental’) presupposition
reasonable humans must make in order to make sense of what they know of the world.
Kant had been encouraged in that supposition by having witnessed the ‘universal yet
disinterested sympathy’ that the French Revolution had aroused across Europe; this was
surely an experience humankind could no longer forget.13 The way to progress could no
longer be closed, while progress meant life under a constitution that would make reality
of everyone’s freedom. It is this assumption, I think, that international lawyers are una-
ble to exorcise from their vocabularies. It seems impossible, or at least very difficult, to
do international law without some such teleology, some sense that one is working not
only to coordinate the activities of states but for the good of humanity itself. This essay
is a reflection on that predicament.
Rereading E. H. Carr’s Trevelyan Lectures, delivered almost exactly 50 years ago,

I found to my surprise that Carr, too, thought in similar terms. Writing about the mean-
ing of the historian’s objectivity, Carr insisted that this was more than just getting one’s
facts right. That the historian’s choice of the relevant facts was conditioned by deeply
ideological frameworks and prejudices was an indispensable precondition for objective
historical work. Carr wrote of the historian’s ‘vision’ (had he thought of himself a
Kantian, he might have preceded that expression with the word ‘transcendental’), which
included the ability to rise above the particular context. (Later Kantians such as Jürgen
Habermas would have spoken of the ability to ‘de-centre themselves’ and to adopt the
point of view of ‘the other’ – more of that later). But it also included more than just
passive ‘watching’; to carry out his job properly, the historian must have:

the capacity to project his vision into the future in such a way as to give him a more profound
and a more lasting insight into the past than can be attained by those historians whose outlook
is entirely bounded by their own immediate situation.14
Only by taking a standpoint in the future would the historian be able to make sense of
the continuum between the past and the present. Carr did not precisely agree with Kant
and international lawyers about the direction of progress. He claimed instead that when
the goals of history appeared – as they did when he was writing – in the form of ‘eco-
nomic and social ends’, they showed a society more advanced than one that imagined
its future only in ‘constitutional and political’ terms. ‘Historiography’, Carr concluded,
is ‘progressive science in the sense that it seeks to provide constantly expanding and
deepening insights into a course of events which is itself progressive.’15 This is not too
different from Laurent or from the international lawyers whose idealism Carr had tar-
geted two decades before. He was of course speaking as a historian. But he could
equally well have spoken as a lawyer whose search for objectivity would also compel
him to think in terms of a historical continuum that adopts the standpoint of an ideal
future. For both, the examination of the past is premised upon some concept of prog-
ress, while its ideal future receives shape and plausibility by reference to how things
have turned out in the past, and what we have learned from them. Teleology appears
ineradicable from both, especially when we think of them as forms of practice. I will
come back to what this means later.
But why do I keep insisting? Because there is hardly a more passé idea than that of
progress in history in the academy where everyone subscribes to the Foucauldian gene-
alogy of the past simply as incommensurate épistemes following each other in a more or
less random sequence. Teleologies are grand narratives whose time is over. In a recent
series of essays by a generation of international lawyers born between 1955 and 1965 on
the state of the discipline, the authors struggle with the well-nigh impossibility of put-
ting their teleology into words. A Spanish professor despairingly confessed that ‘je crois
sincèrement que le droit international sert à quelque chose; il existe afin d’accomplir une
finalité déterminée.’16 But aspiring to articulate that finalité, he retreated behind the
most general formulations – ‘axiological values that defend life, dignity and the future
of the human being’, confessing to ‘un certain pessimisme’, not least owing to his iden-
tification of the objective as an ‘international community’ with ‘common interests’.17
Other authors in that volume repeat the clichés about common values, jus cogens and
legal hierarchy. Even Antony Anghie, a well-known postcolonial critic in the profession,
confesses to a certain bewilderment about the fact that alongside research on the impe-
rial origins of international law he has also tried to find ways whereby the law ‘might be
used by people of the Third World to pursue their own interests’. ‘Contradictions and
tensions seem to be an inescapable element of international law’.18
Such hesitations underline the difficulty of being teleological in the vein of the
late nineteenth century. Experience has taught us to be wary of institutional blueprints
and vocabularies of progress: nationalism, imperialism, fascism, communism and
capitalism – perhaps also industrialization and ‘development’ – have turned out to be
tragically destructive, or at least to have conveyed very partial benefits. If the language
of ‘progress’ remains, it operates at such a general level that no commitment to actual

Koskenniemi 7
policy is implicated. And yet teleology and progress are ineradicable from international
law. I am consoled that the scholar in whose memory these lectures are held thought
likewise about the study of history. History, like law, does not just ask ‘who did it?’ but
also ‘what kind of a world do we want?’
II A brief history of teleologies

Teleology is, of course, a complicated notion and often translated into everyday language
as goal-directness, intentionality and function. To enquire about teleology in its broadest
sense is to ask the question ‘what is this thing for?’ Teleology in nature and the natural
sciences has a long and venerable history from Aristotle and Darwin to systems theory
and beyond. If today’s scientists refrain from invoking a cosmic teleology, this is not to
say that recourse could not still be had to forward-looking causalities, including ‘teleo-
matic’ processes in which the end state is produced automatically (a stone falls to the
ground) and ‘teleonomic’ ones where that state is reached with the help of a program
(genetic adaptation through coding).19 Aristotle famously used teleology as a general
notion that would be applicable in social life, too, in terms of finalist and intentionalist
approaches to understanding human behaviour. Although political modernity involved a
rebellion against the respectability of such explanations in natural science, philosophies
of history, as Karl Löwith has told us, not only persisted in presuming goal-directedness,
but even intensified in the twentieth century in invoking ‘progress’ as providing the
meaning for modernity itself.20
The most famous modern political teleology is that laid out by Kant together with his
contemporary Adam Smith (1723−90), as well as other thinkers of the Scottish enlight-
enment, who operated with a view of historical development that would progress in
stages of which commercial society was the highest. Kant and Smith were both updat-
ing the principles of natural jurisprudence that had, since the Great Discoveries, sug-
gested that all human societies shared a common origin – the state of nature – from
which they had thereafter developed differently.21 The stages theory was meant to
explain these differences in terms of the societies’ position at different levels of a single
developmental trajectory. The histories of humanity, such as that by Laurent, would
invariably describe Europe as being at the highest level.22
Histories of law, again, suggested that each developmental stage was accompanied by
typical kinds of legal institution.23 In his inaugural lecture as the Whewell Professor of
International Law in 1887, the greatest legal historian of the Victorian period, Henry
Sumner Maine (1822−88), explained how the turn from ‘status to contract’ in the legal
systems of progressive societies had been based on the application of the individualist
principles of Roman law. The same turn would take place in the development of interna-
tional law between civilized nations as well.24 Indeed, one aspect that separated civilized
from non-civilized societies was precisely the greater individualism of the former, as
also suggested by the period’s most widely accepted social theory, Neo-Darwinism.25
The process of modernity would be constituted of the transformation from a collectivist
Gemeinschaft to an individualist Gesellschaft, with sociology left to explain how it
would be held together by the interdependence of the paths to individual self-fulfilment
that constituted the telos of life in modernity.

After the Great War, individualism gave way to organic theories. In 1923 a leading
legal historian of the generation following Maine, Sir Paul Vinogradoff (1854–1925),
sketched five historical types of international law, in which what he called ‘modern
developments’ would point beyond nationalism to a ‘political union’ based on a new
conception of the state that was to be ‘wider and more just than that of absolute territorial
sovereignty’.26 Vinogradoff’s history peaked in the ‘collectivistic organization’ that
would form the highest stage after those of the tribe, the city, the church and the contrac-
tual association.27 Not ‘commercial society’ but a centrally planned modern bureaucracy
would become the ideal of academic intelligentsias.28 Interwar lawyers were reacting to
the collapse of the nineteenth-century diplomatic system. The war, they argued, had been
caused by excessive nationalism, a type of egoism as destructive as individualism. Both
were becoming anachronistic as economics and technology were tying states into an ever
intensifying set of dependencies. History’s telos was now expressed in the move to uni-
versal institutions such as the League of Nations and the International Labour Organization
(ILO).29
Hersch Lauterpacht (1897−1960), the century’s leading Anglophone international
lawyer, wrote all his works as critiques of statehood – at a moment of excess enthusiasm
even writing an indictment of sovereignty into his drafts of the opening and closing state-
ments of the British prosecutor at Nuremberg, Sir Hartley Shawcross.30 Lauterpacht was
a staunch federalist and shared the functionalist ideas that would become a credo of
much legal and political analysis. Even the otherwise sceptical Aberystwyth professor
Alfred Zimmern (1879−1957) wrote in his League of Nations and the Rule of Law (1936)
of the need for a change in the politics and psychology of foreign affairs. Although the
League did not bring about a new world, it was still useful as an instrument for interstate
cooperation that might in due course bring about the political and psychological condi-
tions that would be needed for a more united world.31 Interwar legal thought operated
with a teleology of interdependence: the joint interest to resolve problems of interna-
tional government would override formal sovereignty and bring about something like a
law-governed world. It was this theory that the Carr of the 1930s dismissed as an ideo-
logical obfuscation, or, as he memorably wrote:
Biologically and economically, the doctrine of the harmony of interests was tenable only if you
left out of account the interest of the weak who must be driven to the wall or called in the next
world to redress the balance of the present.32
During the long years of the Cold War, international lawyers were compelled to modesty
in their ambitions about international government. But it was unsurprising when after 1989
they began to dust off the teleologies of the interwar period. The intervening years, it was
suggested, had signified only a temporary halt in the liberal progress of humankind. The
activation of the UN Security Council, the creation of the World Trade Organization
(WTO) in 1994, and the adoption of the Rome Statute of the International Criminal Court
(ICC) in 1998, as well as increasing activity in the spheres of human rights and the environ-
ment, illustrated the fact that sovereignty was out. New normative and institutional
approaches were expressed in the language of the ‘rule of law’, and the vocabularies of
human rights, economic integration, development and ‘responsibility to protect’ spread

Koskenniemi 9
everywhere. The constitutionalization of this or that aspect of international law became a

leading theme of academic debates, so that it seemed perfectly logical for the UN General
Assembly to declare the end of the millennium as a ‘Decade of International Law’.33
But international lawyers have not been skilful producers of international blueprints.
The cycle of UN-sponsored world conferences in the 1990s did not turn into a system of
global governance, and the Millennium Development Goals they produced remain sub-
ject to the push and pull of UN diplomacy.34 The ‘international community’ that bombed
Belgrade in 1999, is waging a war in Afghanistan, and intervened in Libya still appears
to be a code word for Western policy in the developing world, claiming authority by its
ability to protect vulnerable populations in a subtle protection/obedience dialectic.35
Even the ‘fight against impunity’ has met resistance among African leaders suspicious
of being subjected to yet another civilizing mission.36 It was perhaps symptomatic that
the ‘Decade’ never received a substantive programme; all it attained was a meeting of
scholars and practitioners at UN headquarters with no operative agenda beyond the
publication of yet another set of papers on perennial issues of international law and
policy.37
Teleology has not fared well as a ground for institutional reform. Proposed univer-
sals have turned out to be representative of particular interests. A historical logic seems
to be at play here. When Abbé Sieyès labelled the Third Estate the universal estate, or
when Marx saw the proletariat as the universal class, they were trying to pinpoint actors
capable of bearing the weight of progress. It did not turn out that way. The middle class
and the proletariat have been blown to pieces and represent scarcely more than a nos-
talgic desire of intellectuals to be at the avant-garde of something. The Grand March to
Cambodia that Kundera created in The Unbearable Lightness of Being was split between
the Americans who used it to stage an anti-communist demonstration and the French
left who saw it bringing help to the Cambodian people. Progress could serve as a unify-
ing force only as an abstraction, as kitsch, Kundera suggested. This has been the fate of
many legal institutions, too: the civilizing mission, modernization, development, global
governance, jus cogens. Once they receive concrete shape, they no longer unite, but
divide.38
III Beyond teleology: ‘realism’ in politics and law

Teleology may have been inextricable from the juridical languages through which lib-
eral spirits have surveyed the international world, but its intellectual reputation has
been poor. An arbitrary moralism, or providentialism, it has appeared uncontrollable
and Eurocentric, an altogether implausible guide for thought and action. Already in
1884, J. K. Stephen (1859–1892) son of the famous British criminal lawyer James
Fitzjames Stephen, in a delightful essay entitled International Law and International
Relations, raised the question of why it was that international relations had so far
always been discussed through the juridical metaphor, in a search for a code of man-
kind. International relations, he suggested, had existed up to his day as ‘no more than
an assertion of the existence of international morality which we have already agreed to
take for granted’.39 We confuse the ‘ought’ with the ‘is’. It was high time to set up a
‘study of International Relations as they are and to speak of international right and

wrong incidentally, and in a manner appropriate to the inevitable vagueness and uncer-
tainty by which the topic is surrounded’.40 Stephen was never able to pursue this new
science but ended his short and tragic life suspected of being Jack the Ripper. But
what he was saying had compelling force, and others soon followed who also insisted
that in a study of the world ending the indefensible predominance of law had become
a necessity.41
Accordingly, Viscount James Bryce (1838–1922) opened his 1921 lectures on inter-
national relations by professing to introduce his audience to history as ‘a statement,
clear and impartial, so far as I can make it so, of Facts’.42 If we examine history through
that perspective, he suggested, we shall see that the relations of nations were those of a
state of nature in which the only history was natural history – the eternal movement
between peace and war.43 The establishment in 1919 of the Woodrow Wilson Chair at
Aberystwyth was based on motives that still confused the sciences that Stephen wanted
to separate, and Zimmern, the chair’s first holder, though not prone to utopian specula-
tion, still believed in the civilizing role of international law and the League of Nations,
especially when aligned with the ideas of freedom and internationalism he associated
with the British Commonwealth.44 Carr, who was one of Zimmern’s successors, was not
impressed, and lumped his predecessor with international lawyers whom he saw as tele-
ological and utopian through and through. With this, generations of students learned to
think of interwar international thought as ‘idealist’ in a way that does justice neither to
Bryce and his many followers nor to international lawyers, both groups being much
more heterogeneous than the standard narrative suggests.45 Even Carr pointed to the
impossibility of being a consistent realist; any politics needed ‘a finite goal, an emo-
tional appeal, a right of moral judgment and a ground for action’.46 But his best (or at
least more memorable) arguments were reserved for his critique of ‘utopianism’, so that
he came to be permanently associated with a position he never really endorsed.47
After the Second World War the call to be realistic about the international world
became quite important for the disciplinary identity of international relations. In his
famous 1940 article in the American Journal of International Law, the Frankfurt jurist
Hans Morgenthau (1904−80) called for a ‘functionalist’ approach to international law
that would move from the ‘indefatigable repetition of magic formulae’ to the examina-
tion of the ‘rules of law as they are actually applied’.48 By ‘functionalism’ Morgenthau
meant a mixture of empirical analysis, mass psychology and decisionism, but never
followed up on this himself. The ‘six principles of political realism’ that opened the
second edition of Politics among Nations carried a rather commonplace image of law as
an instrument of policy. In later years, Morgenthau would continue to stress the role of
law as part of the kind of prudential statesmanship whose sensitivity to the lessons of
history could not be reduced to the ‘rationalism’ or behavioural empiricism that was
beginning to dominate US political science.49 In later years he, like other Weimar
‘Realist’ refugees, went on speculating about world government, ethics and the rule of
law by insisting expressly on the need of a transcendental standpoint.50
But Stephen found himself an audience among a new generation of US political
scientists who were imagining the empirical as the real and organizing it into units and
patterns from which ‘models’ would be constructed to help predict events and guide
decision-makers. Kenneth Waltz’s Theory of International Politics (1979) re-imagined

Koskenniemi 11
the field as a kind of natural science where ‘patterns recur and events repeat themselves
endlessly’.51 The expression ‘international law’ did not make one appearance in the
book. Nevertheless, Waltz was engaged in the same enterprise as jurists had been since
Samuel Pufendorf’s careful adaptation of Grotian natural law in accordance with prom-
ises laid out by Thomas Hobbes. Waltz opened his work with a discussion of ‘laws’,
which were expected to ‘establish relations between variables’. That he thought of these
as causal relations put Waltz’s structuralism alongside the naturalist theories that have,
since Pufendorf, sought to re-articulate the operation of law in terms borrowed from
natural science.52 The assumption of ‘anarchy’ among self-interested actors called ‘states’
whose search for a ‘balance of power’ provides the ‘rational’ operating principle was
after all derived by Waltz from Hobbes and Rousseau – precisely the universe of debates
where modern international law, too, arose. This was a universe of the social contract
dominated by the binary opposition between anarchy/hierarchy and a teleology pushing
from its left to its right. Natural law may be dead (with the exception of some religiously
inclined jurisprudence departments), but its spirit lives on in the ambition to grasp causal
patterns of international behaviour to assist policy-makers embarrassed by the richness
of alternatives between which they are expected to choose. In the last chapter of Theory
of International Politics Waltz sketched a system of ‘management’ for an anarchical
system by those who have a stake in it: ‘the principal entities that constitute the system
are also its managers’.53 Waltz’s careless use of the first-person plural mixed smoothly
with his sketch of the standpoint of the manager. Like Pufendorf, and his followers in
eighteenth-century European public law, he assumed that the burden of ruling could be
lightened by conceiving it as a timeless technology.
If that standpoint grounds the realist theory of hegemonic stability, it likewise domi-
nates the most widely available historiography of international law today. Wilhelm
Grewe’s Die Epochen des Völkerrechts (1986, translated into English in 2000) takes its
cue from Carl Schmitt’s notion of the Nomos and his ‘concrete order thinking’ (konk-
retes Ordnugsdenken), sketching the history of international law as a succession of
great epochs – the Spanish age, the French age, the British age and the Anglo-American
age – each identified by the presence of an imperial centre radiating its power to the
periphery.54 To understand international law, Grewe suggests, one should see it as an
offshoot of each period’s imperial (hegemonic) system. The view that international law
relies on balance between hegemonic powers was, however, first put forward by Lassa
Oppenheim (1858–1919) in one of the first truly ‘modern’ international law textbooks
in 1905/6 and it peaked in Heinrich Triepel’s 1930s legal-realist work on hegemony as
a legal concept.55 Today it is most visible in critical analyses of international law’s role
in legitimating Western imperial policies.56
‘Every science thinks of itself as dealing with “realities”.’57 This is true of interna-
tional law as much as of international relations. ‘Law’, Carr wrote in The Twenty Years’
Crisis, is ‘a function of given political order, whose existence alone can make it binding’,
adding that the question to ask is never whether there is international law but: ‘“What
law? Whose law”. The law is not an abstraction. It cannot be understood independently
of the political foundation on which it rests and of the political interests which it serves.’58
Far from a revolutionary insight, this expresses a commonplace view among twen-
tieth-century international lawyers who became realists together with everyone else.

We, too, professed the view that law is a causal variable or a ‘dynamic reflection’ of the
underlying structures of power and policy and learned to repeat (in Latin as lawyers are
wont to do) ubi societas, ibi jus.59 As one of the members of the new generation of
international lawyers wrote in the above-mentioned collection, it is imperative that
modern international law learns to ‘respond’ to its environment – ‘s’adapter à la réalité
sociale qui fait l’objet de la régulation’.60 The political science criticisms of the lawyers’
‘idealism’ or ‘utopia’ were always beside the point – we knew those criticisms as well
as anybody else, and routinely rehearsed them against opponents in the academy and
the courtroom. Whatever else we may think law is, at least we have learned to under-
stand it as a product of social and political forces, a ‘reflection’ of the world of power,
a concrete emanation of the way the world is. Of course, lawyers have disagreed about
how power and fact translate into law and how, for example, law-creating facts can be
distinguished from deviation. Debates about such matters are the stuff of jurisprudence
and the doctrine of legal sources. But the fact that there is disagreement does not mean
that anyone would have advocated the position that law is not founded on social factu-
ality, only that the way facts are interpreted inevitably vary.
But jurists have also insisted that law cannot be just pure factuality − a mere socio-
logical or historical account of something. Law does not just describe what human
beings or institutions do or have done but what they should do. In the course of centuries
lawyers have disagreed over how to explain the mystery of legal obligation, but that has
not led to the dismissal of the notion.61 For it is as much a key part of legal competence
to realize that law is based on facts and interests as it is to understand that it possesses
‘relative autonomy’ from any momentary fact or interest, that it is not just pure imma-
nence, a passive product of power. To learn law is to learn to integrate the opposite
concerns of realism and critique, or the standpoints for concreteness and normativity.62
As Julius Stone (1907−85), a student of Roscoe Pound’s from Harvard and a well-
known representative of sociological jurisprudence, put it in 1956:
what is given to us is neither merely what is concrete nor merely the abstract principles
concerning it, but the immediate experience of both together as a complex section of reality, the
cognitive priority either of abstract principles or of concreteness must be rejected.63
International law – like all law – needs to be both normative and concrete. If it lacked
normativity, it would degenerate into mere apology − a façade legitimation of what
power has achieved. If it were independent of social factuality, it would collapse into
utopia − a bag of dreams inextricable from the preferences of the dreamer. In the former
case, we would have no way of distinguishing between the Mafioso and the policeman;
in the latter, we could never know the law’s content in a reliable way. Carrying out that
balancing act is not an easy task, and an overview of past legal scholarship would show
reformist projects typically trying to push it in one direction or the other so as either to
fit law closer into its ‘sociological background’ or to develop a more critical attitude
towards power. 64 Such efforts have often been associated with turns to ‘natural law’ or
‘legal positivism’, but the positions are much more fluid than such labelling suggests.
Naturalism usually presents itself in a sociological vocabulary (suggesting ‘positivist’
verification), while positivist projects tend to come with a more or less finely tuned

Koskenniemi 13
ethics of legal decision-making. Neither is able to stand alone. Natural law, morality and
other forms of ‘oughtness’ are needed to explain the law’s binding force, while positivism,
realism and other languages of factuality are necessary to show its (concrete) content.
If the former tend to dominate in times of transformation or crisis, when basic aspects
of the world are questioned, the latter occupy the foreground in stable periods of consen-
sus or apathy.65
It may seem paradoxical that although twentieth-century international law has always
been profoundly ‘realist’, sociological jurisprudence has not had much of an influence on
it. The early enquiry by Max Huber (1874−1960) into sociological foundations pointed
to the forms of interdependence that bound states in an economic community and gave
international law its functional orientation.66 Like Waltz, Georges Scelle (1878−1961),
the most visible international lawyer in interwar France, took part of his inspiration from
Émile Durkheim and based international law on the ultimately biological need for social
solidarity among states and international institutions, but ultimately among humans gen-
erally.67 Alejandro Alvarez (1868−1960), to mention just one Latin American legal activ-
ist, wrote throughout his career from the first to the second half of the twentieth century
about the way the inexorable laws of modernity had changed the conditions of lives of
peoples everywhere and forced a thorough-going change of the political and legal struc-
tures whereby the world was governed.68
In 1956 Julius Stone gave a series of lectures at the Hague Academy of International
Law where he pointed out the great difficulties of actually studying the forms of com-
munication between states that disclosed the application of international law. Official
statements often turned to propaganda, while conducting interviews and opinion sur-
veys among diplomats was undermined by their notoriously having been called upon
to lie for their country.69 If the ‘real’ could not be deciphered from the intentions of
those who acted therein, perhaps it could be ascertained from the ‘functions’ that
appeared to account for its operations. Stone, like the Belgian Charles de Visscher
(1884−1973), or Percy Corbett (1892−1983) from Princeton and Virginia Law School,
was disappointed by the idealism of the interwar jurists and sought a legal idiom more
respectful of diplomacy and political interests.70 From the 1960s international reform
was always advocated in such functional-realist terms so as to make law better ‘reflect’
societal transformations that were already under way somewhere. The title of the most
famous international law book of the 1960s, The Changing Structure of International
Law by Wolfgang Friedmann (1907−72), said it all: as aspects of modernity, transfor-
mations in international trade, technology, development and human rights were uniting
the world in fact, so that now it was necessary to transform the legal superstructure to
reflect those changes.71
The developmental rhetoric was as popular on the left as on the right. In the 1970s,
the ‘School of Reims’ in France, with Charles Chaumont and his disciples, took a
Marxian view on decolonization and the New International Economic Order (NIEO) as
the bases of new global and legal relationships. Chaumont saw present international law
as an ideological expression of economic conflict in the world and, like E. H. Carr,
insisted on the alignment of law on the side of the world’s oppressed – though in so
doing he had to depart from the sociological realism of his critique into a legal activism
whose epistemic status remained wholly unclear.72 Today’s Marxian frames of

international legal arguments appear, not surprisingly, to have much less faith in the
ability of international law to assist in progressive change. Only the immanence of capi-
talism’s contradictions might leave room for a counter-hegemonic possibility.73 In a
sense, this has been the fate of all the great projects of legal change: linking law with
human rights or development, for example, began with great promise, but the more seri-
ously the vocabularies became part of the government of societies, the more they tended
to become entangled in regular political struggles over the setting of governmental
priorities – with the result, often, that the more significant choices of social distribution
escape into the private realm, and out of the reformers’ reach.74
IV Dreams of interdisciplinarity: law and international

relations
Suggestions for taking the ‘realist’ strand of international law seriously have not led to
any profound overhauling of international legal competence: in fact, no more so than
suggestions to strengthen its critical power. International law has become neither sci-
ence nor morality. Commitment to a teleological project – an international community
ruled by law – remains prevalent in a profession that struggles to translate it into a stable
institutional blueprint. In the course of the past half-century, however, offers of assis-
tance have often been made from United States political science departments. The inte-
gration of American legal realism and empirical policy-science peaked in the well-known
collaboration between Harold Lasswell (1902–78) and Myres McDougal (1906–98) at
Yale Law School in the 1950s and 1960s.75 Pragmatic, rule-sceptical and policy-
oriented, the Yale School openly broke with how international law had been taught in
Europe and the US in the past. But notwithstanding the Yale School’s theoretical sophis-
tication, its impact on the profession remained limited, partly owing to its much-
commented-upon esoteric language, partly owing to its unabashed celebration of US for-
eign policy agendas. Perhaps more importantly, the Yale approach suffered from the for-
malism of its policy conceptualizations. It is one thing to suggest the replacement of
‘backward-looking’ rules with foreword-looking ‘policies’, and another to spell out just
what those ‘policies’ might entail. The Yale scholars succumbed to critiques of indetermi-
nacy they themselves had used against traditional rules and precedents; the language of
policy-science appeared no less ‘unscientific’ than the vocabularies it hoped to replace.76
Not everyone shared the Yale School’s right-wing preferences, but their anti-formal-
ism spread around the US academy. Richard Falk from Princeton, a student of
McDougal’s, enlisted his legal activism to the Palestinian cause and the anti-globaliza-
tion movement, while Abram Chayes (1922–2000), a Harvard professor and a former
State Department legal advisor, developed a centrist ‘process-orientation’ that shared
its research programmes with regime scholars in political science faculties.77 A whole
‘Manhattan School’, led by Columbia’s Oscar Schachter (1915–2003) and New York
University’s Thomas Franck (1931–2009) from the 1960s onwards, used the critique of
rules and aspects of liberal political theory to support the UN and other institutional
causes, often against US foreign policy elites.78 Franck’s 1990 work on the role of
‘legitimacy’ came to be widely used as a defence of international law’s force in the
political world.79 Here a full-bodied social science vocabulary was put to use within an

Koskenniemi 15
ostensibly legal discourse, inextricable from Franck’s liberalism and his attachment to
international institutions. Although legitimacy did not constitute a properly normative
language, it helped to bridge the gap between Franck’s individualism and his positivist
image of social science. Like most of his colleagues in the US and Europe, Franck also
professed an openly teleological faith in individualism whose world-wide realization,
he cautiously stressed, was always only ‘emerging’.80
Three phases may be distinguished in efforts to update international law into part of
the US political science project. The first began in the 1960s with the extension of the
behavioural turn to international law. In Political Foundations of International Law
(1961) Morton Kaplan and Nicholas Katzenbach, acknowledging their debt to Lasswell
and McDougal, tried to elucidate international law’s political context by describing ‘the
substantive constraints on international law and the normative constraints on political
behavior’.81 Kaplan and Katzenbach were particularly concerned to explain the opera-
tion of law beyond the limited world of international courts and tribunals. For that pur-
pose, they suggested undertaking a systematic analysis of ‘the interests that support [the
rules of international law] … the means by which they are made effective, and the func-
tions they perform’.82 They assumed that international order – which they saw as a ‘loose
bipolar international system’ – existed at least in part through what they called ‘law-
government’ whose operations they were concerned to explain. The ‘facts of interna-
tional politics’ dictated a limited number of normative choices between which states
were to decide in order to maximize their values. Although the ‘range of possibilities is
large and efforts at exact prediction would be unscientific’ it was nevertheless possible to
analyse broad trends in the occurrence of cooperative or uncooperative behaviour.83 Such
instrumental, state-centric studies of international law were continued in William D.
Coplin’s 1966 study of The Functions of International Law, which focused on the way
the law communicated values and expectations and structured decision-making contexts.
States needed international law to pursue their policies; its reality was guaranteed by its
functional usefulness.84 A summary of behaviouralist works in this vein, and the most
elaborate of them, was the 1971 overview by Wesley Gould and Michael Barkun of the
‘patterns, units, structures and processes’ through which international law operated and
which were concerned with the time-lag that seemed to exist between the development
of international society and its laws. Their ambition was to produce a typology of laws
that would correspond to a typology of societies so as to ‘determin[e], as far as possible,
the changed conditions on international law itself, or on legal systems’.85
The second generation of interdisciplinary scholarship began in the late 1980s,
partly as an offshoot of the spread of normative approaches and ‘constructivism’ within
international relations in general, in part owing to the rise of a liberal millenarianism
connected with the end of the Cold War and the resuscitation of internationalist themes
drawing upon increasing activity within global and regional institutions.86 Regime
theory and neo-institutionalist economics rearticulated international law through a lan-
guage of ‘regimes’, ‘governance’, accountability’, ‘legitimacy’ and the turn to democ-
racy and human rights in international institutions. Anne-Marie Slaughter from
Princeton read the new developments into a ‘dual agenda’ whereby international rela-
tions scholars and international lawyers were called upon to cooperate in developing
research agendas on the institutionalization of international policy-making and the

spread of ‘liberalism’.87 Others suggested the study of the ‘legalization of international

politics’, especially by examining the operation of formal and informal rules in interna-
tional ‘regimes’ where they would serve ‘functions’. Issues such as regime design and
typologies of normativity appeared important for a managerial scholarship worried about
the efficiency with which international institutions were fulfilling the objectives of their
founders.88 But very little collaboration followed. Most lawyers failed to see the point of
translating law into the vocabulary of political science of which they would no longer be
the native speakers. ‘Cooperation’ always sounded more like conquest.89 Moreover,
behind the apparently empirical concerns was an identification with a managerial stand-
point and a normative teleology that saw global developments lead towards an increasing
acceptance of electoral democracy, human rights and capitalism.90 The ‘dual agenda’ was
espoused by a liberal elite and they collapsed together in September 2001.
As the 1990s brought identity politics to US campuses, international relations depart-
ments reacted by turning to the kind of abstraction that was always liberal theory’s natu-
ral home. ‘Constructivism’ concentrated on subject formation but avoided examining
the relations of domination that controlled it. In its determination to remain part of the
‘social science project’, constructivism also separated itself from its postmodern home
and geared itself towards instrumental effect and managerial control. Might law (for
example) become a better strategic tool of statecraft if research focused on how it
embodied ideas about security, respect, reputation or legitimacy? Might it be possible to
enhance the internalization of norms and socialization of recalcitrant agents by cleverly
designed legal apparatuses?91 To what extent might actors’ perception of their ‘interests’
be manipulated by ideological work around legal regimes and concepts? Instead of
secret agents, ought governments to apply ‘norm entrepreneurs’? Of course, as Kelsen
and others have shown, law is a ‘construction’. But as such it is always both unstable
and contested.92 Where international relations constructivism believes in homogeneous
ideas and undistorted communication, international law highlights the polemical aspects
of the ‘constructed’ world – indeed it thrives on the constant putting into question of
such constructions as ‘state’, ‘minority’, ‘reputation’ and so on.
Like ‘constructivism’, the third and the most recent effort to integrate political science
vocabularies into international law is ideologically conservative, statist, and closely
aligned with the preferences of US academic institutions. This is the turn to law and
economics, rational choice and game theory. The overriding concern rests with effective-
ness and compliance, or, as Andrew Guzman puts it: ‘to offer a satisfying theory of how
and when states comply with international law or when international law is more likely
to work’.93 How in an ‘anarchical system’ is it possible to compel states to do what one
wants them to do? This question is put forward not as an intellectual puzzle but from the
perspective of a powerful institutional player, with stakes to win or lose as a result of
choices made and policies chosen. Law and economics comes with a firm commitment
to the epistemic virtues of positivism, including to ‘the essential unity of the social sci-
ences’ based upon ‘rational analysis’ and ‘methodological individualism’ that is expected
to ‘[hold] ... great promise to international law’ as it ‘suggests useful methods for analyz-
ing the actual or potential consequences of legal rules’.94
Turning law into an economic mechanism has a number of well-known problems.
How is building on state preferences compatible with individualism and value-neutrality?

Koskenniemi 17
What about the conditions under which the agents come to espouse some values instead
of others, and grow out of inherited ones? How is reliance on models, ideal-types and
presuppositions about anxious prisoners helpful in solving concrete social problems?
Rational choice and the economic approach epitomize the paradox that the firmer the
grasp one wants on a complex reality, the more formal and abstract one’s categories
become and the less action-guiding effect they will have. But to be fully determinative
they ought to be like Borges’s map − as expansive as the ground they cover. Which is why
everything depends on the choice of which actor and which value should be highlighted
and which not. Here economics emerges as a series of structural biases. Though ‘self-
interest’ is offered as an analytic category, a hypothesis, it turns almost always into a set
of commonsense ‘realist’ presuppositions that ‘validate both selfishness and the drive to
acquire and consume’.95 Economics is both an ideology and a set of cultural norms –
which would be no problem if it recognized itself as such, instead of parading, in all the
relevant literature, as neutral and ‘scientific’. The most striking problem with the eco-
nomic theory, however, comes with its commitment to intentionalism − the view that the
meaning of a rule or institutions is derived from the (actual or presumed) intent of the one
who enacted it or set it up. Once a venerable part of nineteenth-century classical legal
thought, this view has since been thoroughly discredited, and not least by the legal real-
ism on whose shoulders law and economics as well as rational choice stand.96 The ‘will
of the legislator’ is not the object of the interpretative process, but its product. The con-
struction of the meaning, including the telos, of legal rules and institutions is, as the cliché
goes, ‘an art and not a science’.97 But if international law is indeterminate in this way,
then we do not know – that is to say, we do not know as a matter of law – what it is to
comply with a rule or how to assess the ‘effectiveness’ of an institution independently of
choosing between rival interpretations. The question of ‘compliance’ is not a legal but a
technical or a managerial question. Nor is there anything distinctly legal in the interest of
‘explaining compliance’. Instead, the relevant question always concerns what there is to
comply with in the first place, what, of the many possibilities, is the preferable meaning
of the rule, and should the rule be applied, or the exception?98 Actors alleged to be in
‘non-compliance’ will invariably claim that the allegation is based on a mistaken interpre-
tation of the rule, that the rule does not concern them, or that they do comply, albeit in an
unorthodox way. It is precisely the openness of the legal language, including any object
and purpose it is alleged to have, that is at the heart of the legal debate.99 And the debate
ends – if it ends at all – with a legally competent institution providing an authoritative
view on the matter.
This is why law is profoundly different from mere ‘governance’ or ‘administration’
and what makes it frequently appear counterproductive or obstructive in view of the
institutionally dominant actors. Interdisciplinary approaches are blind to the difference
between the objectives of particular, especially dominant, actors and the point of law.
Or because such approaches associate the latter with the former, the only interesting
question that appears to remain is always how to achieve compliance with that objective
with maximal effect and minimal cost. But there is no legal answer to that question.
On the contrary, legal arguments will continue to contest that dominant objective, or the
dominant interpretation of its institutional implications. Only jurisdictional competence
will dictate the end point of the legal polemic, and even it is powerless to prevent the legal
argument from continuing outside the institutional frame.

Interdisciplinary agendas could be left to the side were it not for their intention to
become the new international law. ‘There is a more sophisticated international law
literature in the international relations subfield of political science’, Goldsmith and
Posner have wanted to claim.100 The ‘literature’ is the one meant to facilitate interna-
tional governance − not surprisingly if, as noted by Steve Smith a decade ago, the
‘subfield’ in its many permutations is ‘still an American social science’.101 What makes
it such is its positivism and its methodological individualism, its looking away from
present contestation and its admiration of, and usual alliance with, dominant institu-
tional actors. A particularly striking illustration of the biases of the ‘subfield’ is a recent
collective volume on neorealist approaches to international history, among whose con-
tributors we find such leading lights of the movement as Richard Rosecrance, Robert
Keohane, Niall Ferguson and Paul Schroder. None of the 16 essays takes up colonialism
or the developing world. The obsession is with US power, and any historical examina-
tion has meaning only if it illuminates problems or dilemmas in American foreign pol-
icy.102 The only concession to a pseudo-normativity in this literature generally is
occasional reference to an instrumental notion of ‘legitimacy’: might dominant objec-
tives be realized more efficiently if they were accompanied by a feeling of legitimacy
within the targeted populations? No attention is given, however, to whether such a feel-
ing might have been caused by force, fear, manipulation or ignorance.103 To this type of
policy-science the scathing criticism by Herbert Marcuse is today as pertinent as ever:
the criteria for judging a given state of affairs are those offered by ... the given state of affairs.
The analysis is ‘locked’; the range of judgment is confined within a context of facts which
excludes judging the context in which the facts are made, man-made, and in which their
function, and development are determined.104
This is not to say that such problems would have been invisible to international rela-
tions. On the contrary, it often appears that no academic field is more obsessed with
methodological problems and political biases. But it has been difficult to find powerful
alternatives to realism, in particular ones that would share the kind of teleological
standpoint law has: that is to say, a standpoint that looks for, and seeks to engage with
the point of international institutions (instead of immediately asking how a given point
should be implemented). True, Wendt and Patomäki have recently raised the question
of teleology. In their contributions they have oscillated between functional and inten-
tional approaches, highlighting either the mechanistic causalities operative in the inter-
national world, or the processes of deliberate action and contestation under which world
developments ought to be analysed.105 While welcome, the opposition between ‘objec-
tive’ and ‘subjective’ approaches to the telos of international institutions they illustrate
repeats the structure/agency dilemma while pushing towards a centre where each is
read in terms of the other. Both ‘world state’ and a global culture of democratic social-
ism resemble what jurists have been saying about the coming of a law-governed ‘inter-
national community’. This does not make them any the worse, of course, but
I want to suggest that the teleology of law cannot be reduced to particular institutional
blueprints or utopian architectures.

Koskenniemi 19
V Into counterdisciplinarity
Interdisciplinary vocabularies of ‘scholarship’ and ‘science’ miss what for most interna-
tional lawyers is the most obvious aspect of our trade: namely, its craft-likeness, its
being above all a practice. International law is not a social science. It is not a (theoretical)
science at all – that is to say, it does not operate on the basis of demonstrable, even less
empirical truths, nor with ideas about moral goodness. Legal ‘truth’ or ‘goodness’
is concerned with what Panu Minkkinen calls the correctness of the legal decision.
This is a product of legal practice, argument and persuasion, not its precondition.106 Even
as lawyers may use empirical arguments from ‘theory’ and sometimes invoke moral
sentiments, the practical reasoning – phronesis – that best characterizes what lawyers do
cannot be reduced to either one or the other. What works depends on the context. Above
all, discussing it through a methodological vocabulary borrowed from social sciences –
such as a choice between realism, liberalism and constructivism, for example107 – while
perhaps useful in a political science context, conveys no sense of the eclectic and
pragmatic character of legal praxis. To take an almost random example from the same
otherwise well-written interdisciplinary work, the sentence ‘The dominance of realism in
IR is matched by the dominance of positivism in IL’ is either meaningless or at least
misleading as a characterization of those argumentative moves that are usually called
‘positivism’ within (international) law and their place among other legal techniques.
To begin to approach the nature of law as practice, reference could be made to Kant’s
Third Critique that discusses a type of (‘reflecting’) judgment that is neither theoretical
or verifiable, nor simply a statement of subjective pleasure but one that is subject to
rational assent or disagreement within a community.108 This is how Hannah Arendt
famously characterized political judgment, but that characterization is equally well (if
not better) applied to law.109 Much of mainstream Anglo-American jurisprudence also
approaches law in this way, as a hermeneutics of interpretation that aims to ensure the
coherence of the legal order – and thereby the acceptability of the system of distribution
of material and spiritual values that goes with it. There is much that is right in this juris-
prudence. Law is an interpretative craft. But it underestimates the open-endedness of
the interpretations and mistakes ‘coherence’ as the point of legal activity.110 A better
view is to take one step backwards, accept the irreducible indeterminacy of interpreta-
tion and the contradictoriness of legal argument (which, in any case, most lawyers
accept), and build on the way legal argument brings out into the open the contradictions
of the society in which it operates and the competition of opposite interests that are the
flesh and blood of the legal everyday.
Law is an argumentative practice that operates in institutional contexts characterized
by adversity. Its point is to persuade but also to ‘win’ against polemical adversaries.
Moreover, it seeks to do that in situations where somebody has a stake in the matter,
when the interests of the adversaries are in question. This need not be a court; it can be
any kind of collective body – a committee of experts, or the editorial body of a journal,
say. What counts as a persuasive argument in one context is not the same as what might
win in another and practising lawyers are often very skilled in noticing such differences
and adjusting their arguments accordingly. A good legal argument is not the product of
method, but, as I have put it elsewhere, style.111 It is, for example, sometimes necessary

to argue in a strictly ‘positivist’ manner by reference to black-letter law while at other

times passion and reference to large (naturalist) principles are required. Where European
audiences tend to be persuaded by ‘formalism’, American ones need to be addressed in
an anti-formal idiom. To mistake the context is to seem unpersuasive, and thus to ‘lose’
the argument, with whatever this might mean to those having something at stake.112 From
this perspective, law is not a supporter of social consensus but a participant in its con-
flicts, giving form to social adversity in order to support some values against others, to
affirm or contest prevailing distributionary structures.
International law is taught at law schools as part of the legal curriculum. Cultures of
international law teaching vary just like legal cultures generally. For example, the gap
between European and US international law is often noted, though perhaps still not well
understood113 – and it falls completely under the radar screen of descriptions of interna-
tional law as ‘science’. But although views of the lawyer’s craft differ, everywhere it is
expected to focus on legal problems: that is to say, problems about the content and the
application of law. ‘What does the law say?’ and ‘how should the law be applied in this
case?’ are typical formulations of those two problems – one having to do with the mean-
ing of law in abstracto, the other with its application in a concrete situation.114 These
are normative problems but they are not problems of morality – although giving a pro-
fessionally competent response to them may involve taking a stand on some disputed
moral questions. They are factual problems, too, but what count as relevant facts and
how their importance should be assessed is determined from within the relevant context
of argument, through the adversarial procedures that law provides for social agents.
This is the truth of law as an institutional practice: its standards and performances are
internally validated.115
Of course, it is possible to detach the normative and the factual questions from their
legal-institutional contexts and to treat them as problems of pure normativity or pure
factuality. International relations experts such as Allen Buchanan, for example, may want
to elaborate on the ‘moral foundations of international law’, focusing on such large
expressions as ‘justice’, ‘self-determination’, ‘legitimacy’ and so on.116 Or they might
want to rule on the ‘effectiveness’ of international law by asking, with Anthony Arndt, ‘do
legal rules matter?’117 That is fine. But neither pursuit participates in the practice of legal
argument. To suggest otherwise is to invite re-imagining law as either ‘in fact’ moral
philosophy or descriptive sociology: that is to say, a kind of natural law. And while
natural law has played an important part in moments of international crisis, when funda-
mental questions about legal institutions themselves need to be posed, it is still vulnerable
to arguments from 3000 years of Western political thought.118 The recent turn in interna-
tional law to the ethical vocabularies of humanitarianism, ‘dignity’ and ‘crimes against
humanity’, for example, manifests a wish to get rid of social conflict by glossing it with
languages of passion, engagement and moral necessity – and yet, when pressed by legal
argument in concrete contexts, they turn into placeholders of contested positions about
authority, often indicating the international system’s Western bias.119
International law may be a university discipline, but it is above all a rhetorical practice
that, to follow Fritz Kratochwil, has to do with the ‘principled use’ of legal arguments ‘in
application’.120 It is not a random production of speech-acts. Only some arguments are
acceptable; others are not. But although the practice of legal argument is formally very

Koskenniemi 21
rigorous, it is substantively open-ended. It does not represent some ideal future world
that would, as it were, have been already written into it.121 That ideal world must still be
created; it cannot be ‘found’ to exist already in the legal system. The hugely important
contribution of legal realism was to demonstrate that for every rule there is an exception,
for every principle a counter-principle. Every legal rule and policy can be understood in
different ways, and even the same ones create differing consequences when their context
of application changes. Even when there is no disagreement about the content of a rule,
the world in which it is to be applied is usually hard to interpret – what aspect is signifi-
cant in the world, and what is not?122 Judgment is needed. This is why, as Hersch
Lauterpacht wrote many years ago, in the most important English-language book on
international law: ‘the existence of a sufficient body of clear rules is not at all essential
to the existence of law … the decisive test is whether there exists a judge competent to
decide upon disputed rights and to command peace’.123
One need not share Lauterpacht’s enthusiasm for formal courts. Alternative
approaches focus on the institutions of diplomacy, NGO activism, humanitarian relief
work, intergovernmental organizations. There is a wealth of contexts and ‘interpretative
communities’ within which international lawyers argue.124 Each such context is also
normally biased in favour of some types of argument and some types of distributionary
outcome. Human rights bodies decide differently from trade panels. Though legal
argument is indeterminate, the contexts of argument are not.125 This is why the ‘frag-
mentation of international law’ – the proliferation of legally relevant institutions and
interpretative communities – has become the most important site for political contesta-
tion in international law today. Which institution ought to decide?126 But the bias of
single institutions is never complete. Like McDougal’s ‘policy’, the formal objectives
of such institutions (security, human rights, free trade, the environment) remain open-
ended and conflictual even among the relevant expert groups, thus opening yet again a
forum for legal contestation.127 Law has a never-ending character (as political decision-
makers sometimes despairingly notice). It makes it possible to constantly produce new
interpretations of its rules and prior judgments, thus cultivating the gap between the
institutional present and the legal ideal and doing it less as an incident of method or
discipline than as a commitment.
VI Law’s teleology
Even today international law uses a vocabulary of progress against the Polybian heresies
of realism and postmodern invocations of the end of grand history. International lawyers
are ideologically committed to their craft. We believe it is more than a technique and that
it embodies something intrinsically valuable for social life. It is not obvious what this
something might be. Why would it be good to operate with ‘rules’, ‘rights’ and legally
circumscribed procedures in the international world? Standard responses point to the
protection humans receive from law against unjustified interference in our liberty, and
the way law makes it possible for us to participate in the ruling of our communities, and
be responsible for our choices.128 Law is thought to bring such benefits through offering
a neutral way to resolving social conflict and allowing individuals and human groups –
and states – to go about their business in an orderly fashion. There is something to this, of

course. Everyone agrees with the importance of neutrality, transparency, accountability,

good faith and all the other qualities of the ‘inner morality of law’.129 We make a distinc-
tion between the law’s ‘principled application’ and its manipulative use. Making it with
consistency is to recognize the virtues of good legal practice.130
These virtues have to do with law’s universalizing pull, the way it invites us to treat
everyone as equals, abstracting from particular qualities. ‘Rules’ by definition univer-
salize single situations. ‘Rights’ lift ideas about the good from matters of personal
preference to public entitlements. Legal procedures aim to guarantee fair and equal
treatment to all. Every deviation from universality requires a special justification. From
this inbuilt bias towards the universal, and against the particular, international lawyers
have derived their cosmopolitan leanings, their ideological commitment to international
institutions, their critique of sovereignty. Most international lawyers would say without
hesitation that law is intrinsically teleological in the way Kant suggested, that it has a
preference for international institutions over domestic ones, perhaps for a ‘world state’
or at least a world federation. But this conflicts with another historical experience,
referred to above, namely that international institutions have over again fallen short of
what we have expected from them. However universal, rules and right-formulations
have also reinforced privilege, and procedural standards have discriminated as much as
they may have empowered. Above all, a universal system of international law has been
able to coexist with massive global inequality and injustice. How is this possible?
It follows from law’s indeterminacy that there is no concrete institutional form in
which the virtues of legality would be finally realized. Instead, law as practice will
always have to be accompanied by sensitivity to the contexts of its application and an eye
for its effects on the patterns of privilege in the communities concerned. When the
virtues of legalism are projected onto institutional structures, they may also operate as
blinding mechanisms, making us forget that every institutional choice, every response to
questions about the content and application of law, is also a ‘politics of law’ that along-
side the general formulation of the rule or the right will contain a suggestion as to what
it might mean here and now.131 Indeed, it is only on the basis of the legal ‘decision’ that
law begins to ‘tick’, that is receives concreteness and applicability, that legal institutions
receive the structural bias that make them act predictably – for better or for worse.
To join that bias, or not to join, remains a choice which, even as it deals with the single
case, will reflect on the institution’s objectives and what it is expected to stand for.
Much of the debate concerning the relation between international law and politics
has focused on the applicability of universal standards in the international world.
From Hans Morgenthau’s Frankfurt doctoral thesis, to Hersch Lauterpacht’s views of
the completeness of the international legal system, to Julius Stone’s defence of politics
in a fragmented world and Thomas M. Franck’s exploration of the ‘political questions’
doctrine, lawyers have debated the wisdom of generalizing about the facts of the inter-
national world, supposedly the realm of the singular, the extreme, the historically
specific.132 There are not many cases from international practice (in contrast to aca-
demic writing), however, where lawyers would have raised their hands in deference to
‘the political’. The International Court of Justice, for example, has given legal answers
to such politically loaded questions as the Iran−US hostage crisis, the legality of
nuclear weapons, the Palestine Wall and the declaration of the independence of

Koskenniemi 23
Kosovo. To the claim that it ought not judge on them, it has routinely responded that the
fact that a matter has political implications is no bar to pronouncing upon its legal
aspects.133 Nor has this fact occasioned the kind of political crises that those invoking de
maximis non curat praetor may have expected. This is so because law invites its appliers
to exercise the kind of practical judgment of which ‘politics’ at its best consists.134
Lawyers defer to ‘sovereignty’ or the ‘needs of peace’ not irrespective of but by reference
to legal rules. Whether we regard something as political’ or ‘legal’ results, as Morgenthau
and others noted a long time ago, not from the intrinsic character of that item or topic, but
from the frame in which it is observed, the language that is used to deal with it.135
Sovereignty, a thoroughly political notion, is also created and sustained by international
law – as much, in fact, as ‘international organizations’ or ‘integration’. ‘Security’ and
‘defence’ are likewise legal notions, like ‘war’ and ‘intervention’. There is no conflict
between ‘disciplines’ here, only a choice between professional languages. And that
choice is no different from any we have to make in a world ‘fragmented’ between differ-
ent idioms of power and ‘ways of worldmaking’.136 International law’s potential, I think,
lies in how attractive it is as an invitation to worldmaking, to what extent its teleology
covers relevant forms of international power.
International lawyers’ institutional imagination has been constrained by eighteenth-
and nineteenth-century cosmopolitan thought – the domestic analogy and the pull
towards a constitutionally governed global federation in particular. The embarrassment
has always been with the way it has been able to coexist with massive international
injustice. Some of this has been brought about by the states and empires it has helped to
support. But this has always been seen as problematic, too, and in need to reform in
view of the ideals of statehood and public power themselves. More importantly, that
nineteenth-century sensibility excluded large chunks of power from its compass,
namely that exercised through private law, property and contract − forms of interna-
tional power often associated with informal empire or the ‘empire of civil society’.137
At the beginning of the twenty-first century, that exclusion seems increasingly
unfounded. There is as little reason for lawyers to be intuitively in favour of the ‘inter-
national’ as there is to concentrate on the public realm of diplomacy and international
organizations as privileged sites for questions of distribution and policy.138 Our official
teleology is at odds with the virtues of legality. Might the false derivation from law’s
universality be corrected by focus on its historicity?
Law constructs its universals in an intensely historical way: it looks both backwards
and forwards in time so that a prima facie plausible resolution of a legal problem ought
to take account of what has taken place in the past (to be used as evidence) and how it
might affect the future (as precedent). Legal argument creates a temporal sequence in
which the past informs the present, while the future serves as the ideal of the present,
its standard of criticism. That legal argument creates historical narratives in this way is
very familiar. As Philip Allott has put it, ‘international law, like any other legal system,
is a bridge between the social past and the social future through the social present’.139
It offers a continuing self-interpretation to society in terms of what has taken place in
the past and how society sees its own future. Nineteenth-century men such as Laurent
were very conscious of this. They were extrapolating into the international world what
French and English lawyers had been doing in the sixteenth and seventeenth centuries

as they engaged in nation-building by appealing to ancient customs and constitutions

against the timelessness of universal empire. They were following what Carl Friedrich
von Savigny had done in the early nineteenth century when he juxtaposed the spirit of
the (German) nation against (French) rationalist abstractions. Indeed, history-writing
was also the writing of law. As Hayden White observes:
The more historically self-conscious the writer of any form of historiography, the more the
question of the social system and the law that sustains it, the authority of the law and its
justification, and threats to the law occupy his attention.140
For nineteenth-century historians, law and constitutionalism were privileged languages

through which the social conflicts of modernity could be dealt with by reference to the
‘nation’ as a historical and political unity and a horizon of progress. From such sources
twentieth-century jurists received their language of the international community. From
the critique of individualism at home we received our critique of sovereignty that became
such an important aspect of our teleology. Today, however, clichés about ‘community
interests’, ‘universal human rights’, the ethics of humanitarianism, jus cogens and all the
formal paraphernalia of textbook law sound somehow beside the point. They grasp only
a very limited part of international power, leaving the functional laws that pertain to the
management of ‘globalization’ by private actors and the international market invisible.
There is increasing interest in historical sociology in international relations.141
Something similar is needed, and perhaps is starting to be visible in international law,
too. The point of such histories would be to trace the way legal institutions – both private
and public – and forms of legal thought and sensibility have come to expand in the world,
organizing the distribution of wealth and poverty between the world’s populations.142
With such studies it might be possible to move the discipline’s orientation from institu-
tions of a certain nineteenth-century sensibility to the many legal techniques, institutions
and vocabularies that today organize the allocation of material and spiritual resources
through property and contract, commerce and financial transactions. It has been custom-
ary to view international law’s telos in one or another version of the (Kantian) theme of
a universal federation and to limit its jurisdiction to the ‘public’ activities of sovereigns.
In view of the historical construction of sovereignty itself, this has been a mistake. Since
the middle of the nineteenth century, successive types of Western law and Western legal
consciousness have colonized the world, determining the roles that public and private
law should have in managing interdependence. It is possible to have a grasp of the way
we are governed, and how power is exercised in the world, only by retracing that history.
We only have reason to hope that there will be an international law in the future, too, if
it is able to encompass all forms of legal power. Only then it may serve as a platform on
which the direction of ‘globalization’ may be defended and contested, and made subject
to questions about its point and purpose − teleological questions, in other words. This,
again, seems needed so that the fate of human communities would appear to be in
their own hands, instead of being the objects of the whimsical moves of anonymous
global forces.
Some time ago I participated in a case before the International Court of Justice that had
to do with the legality of the declarations of independence given by Kosovo’s organs of

Koskenniemi 25
self-determination. In preparing my oral statement I did what all the lawyers did, what-
ever the position they defended.143 Descending into the libraries, my colleagues and I
examined not only the history of Kosovo or the former Yugoslavia, but the intricacies of
Balkan policies in the past century, the relations between the ethnic and religious groups,
the forms of external intervention and the role of international bodies in the conflicts.
From this we tried to extract a pattern that could be articulated in the applicable legal
doctrines of statehood, self-determination, sovereignty minority rights, secession, use of
force and so on. This would enable us to present a ‘principled argument’ that
the Court could take to justify its decision. Indeed, it was impossible to argue about the
lawfulness of the unilateral declaration of independence without a general view of the
significance of nationhood and sovereignty today, the role of international institutions
and the experience of war and peacemaking in Europe and more widely. The (universal)
legal concepts and the specific histories were then woven together by the legal ‘teams’ in
a proposal to decide the case one way or another. At the same time, the available legal
concepts enabled the understanding of the differences in genuinely political terms – as
differences about how to understand Balkan history and the relations of the several
communities there – and the assessment of them through a vocabulary that, although it
was open-ended, reaffirmed the need to obtain some minimal agreement from the popu-
lations themselves about how to live together in the future.
Statehood, self-determination, sovereignty, minority rights, secession, non-use of
force − there are many well-founded critiques of all that. But they are part of institutional
vocabularies that make it possible to express the character of collective life as a project –
and our institutions and practices as platforms on which the point of that project is
constantly imagined, debated, criticized and reformed, over and over again. What kind of
history would it be that contained no sense of such collective projects? And what kind of
politics would not assess how the present fares in view of such collective ideals? Law’s
teleology is situated at that crossing. Through it, we embrace the past as experience and
criticize the present for its incomplete fulfilment of our ideals. In upholding collective
lives as projects, law transforms individuals into citizens with a stake in their communi-
ties, and communities into participants in the world political process.
International law invites everyone to participate in the imagining of humankind’s
collective telos, not despite its indeterminate character but precisely by virtue of its
openness. No institution or system of governance should be immune to legal contro-
versy. Formal government and private governance, international, regional and local
rules, religion and science, and the various regimes of truth and expertise all operate in
ways that use law and can be captured as forms of law – as long as our vision is not
clouded by stereotypical images of what ‘ruling’ or ‘law’ are. The exercise of power in
the international world has been increasingly taking the form of economic or technical
measures whereby officials and businesses react to crises that arise from, as it were,
nowhere. The acting agents are rendered invisible and responsibility lies with no one. It
is against this, I think, that the telos of international law has recently become visible, as
law has come to be the vocabulary for many of those who to want to express their
frustration and anger about a global (post)modernity. International law may be weak
and contestable as a sociological theory, a morality of spiritual renewal or a technique
of administering global life. And while there is a temptation to turn it into another

instrument of dominant institutions and expert power, it also has the resources to reveal
the particularity of those institutions and contested nature of claims of expertise.
Perhaps paradoxically, the way international law speaks of rules and rights stands as the
last platform on which collective futures may be imagined and constructed without
taking the present distribution of wealth and knowledge as a given, but through which
it can be articulated as a problem. To think this is to be apprehensive about claims con-
cerning the requirements of the ‘real world’ voiced in dominant quarters. For ‘realism’
is the problem, and thinking beyond it requires thinking teleologically.
Notes
Professor Martti Koskenniemi delivered the 2010−11 E. H. Carr Memorial Lecture at Aberystwyth
University on 24 February 2011. This series of annual lectures was inaugurated to honour the
contribution to the field of Edward Hallett Carr (1890−1982). Carr was the fourth Woodrow
Wilson Professor in the Department of International Politics, and during this period, 1936−47, he
wrote − among others − his landmark book The Twenty Years’ Crisis 1919−1939: An Introduction
to International Relations (1939, 2nd edn 1946). The first Memorial Lecture was delivered in
1984 by Professor William T. R. Fox, Bryce Professor Emeritus of the History of International
Relations at Columbia University.
1 I have told their story in The Gentle Civilizer of Nations: The Rise and Fall of International
Law 1870−1960 (Cambridge: Cambridge University Press, 2001). Laurent became a member
of the Institut de droit international, and his successor Ernst Nys (1851−1920) eventually
combined the tasks of the first professional historian of international law and Laurent’s
biographer.
2 François Laurent, Histoire du droit des gens et des relations internationales, vol. 1: L’Orient
(Paris : Durand, 1851).
3 François Laurent, Histoire du droit des gens et des relations internationales, vol. 4: Études
sur l’histoire de l’humanité (Paris: Durand, 1855), p. v. Both titles are also included in the
second edition of the work (Brussels: Méline; Paris: Librairie internationale, 1861−70).
4 Antonio Cassese, International Law, 2nd edn (Oxford: Oxford University Press, 2005), p. 45.
Cassese’s career includes acting as the first president of the International Criminal Tribunal
for former Yugoslavia (ICTY) and presiding at the Lebanon tribunal on the murder of former
prime minister Hariri.
5 Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of
Judge Bruno Simma (Oxford: Oxford University Press, 2011).
6 Antonio Augusto Cançado Trindade, ‘International Law for Humankind: Towards a New Jus
Gentium’, Recueil des Cours, 316 (2005), pp. 83 and 52−60.
7 Benedict Kingsbury and Megan Donaldson, ‘From Bilateralism to Publicness in International
Law’, in Fastenrath et al., From Bilateralism to Community Interest, p. 79.
8 Out of a huge recent literature, see e.g. Mehrdad Payandeh, Internationales Gemeinschaftsrecht
(Heidelberg: Springer, 2010), pp. 23−33; and, generally, Gunter Teubner and Andreas
Fischer-Lescano, Regime-Kollisionen: zur Fragmentierung des globalen Rechts (Frankfurt:
Suhrkamp, 2006). See also the report by the International Law Commission, ‘Fragmentation
of International Law: Difficulties Arising from the Diversification and Expansion of
International Law’, UN Document A/CN.4/L.682 (13 April 2006), pp. 10−17.
9 Immanuel Kant, ‘Idea for a Universal History with a Cosmopolitan Purpose’, in Political
Writings, ed. H. Reiss, 2nd edn. (Cambridge: Cambridge University Press, 1991).
10 Kant, ‘Idea for a Universal History’, Eight Proposition (pp. 50, 47).

Koskenniemi 27
11 Kant, ‘Idea for a Universal History’, Fourth Proposition (p. 44).

12 Kant, ‘Idea for a Universal History’, Eighth Proposition (p. 52). Kant’s cosmopolitan legacy
has been the object of many recent assessments. A useful recent commentary is Oliver Eberl
and Peter Niesen, Immanuel Kant: zum ewigen Frieden (Berlin: Suhrkamp, 2011).
13 Kant, ‘The Contest of the Faculties’, in Political Writings, p. 182.
14 E. H. Carr, What is History? The George Macaulay Trevelyan Lectures Delivered in the
University of Cambridge January−March 1961 (London: Macmillan, 1961), p. 117.
15 Carr, What is History?, p. 118.
16 Mariano J. Aznar Gómez, ‘Une vision provisoire du droit international actuel’, in Emmanuelle
Jouannet, Hélène Ruiz-Fabri and Jean-Marc Sorel, Regards d’une génération sur le droit
international (Paris: Pedone, 2008), p. 47.
17 Gómez, ‘Une vision provisoire’, pp. 47, 64.
18 Anghie, in Jouannet, Ruiz-Fabri and Sorel, Regards, pp. 38, 44.
19 Ernst Mayr, ‘The Idea of Teleology’, Journal of the History of Ideas 53, 1992, pp. 124−32.
20 Karl Löwith, Meaning in History (Chicago: Chicago University Press 1949).
21 For a discussion, see Istvan Hont, Jealousy of Trade: International Competition and the
Nation-State in Historical Perspective (Cambridge, MA: Harvard University Press, 2006),
pp. 101−3 and passim.
22 For a useful discussion of nineteenth-century developmentalism, see John Burrow, Evolution
and Society: A Study of Victorian Social Theory (Cambridge: Cambridge University Press,
1966).
23 For an overview see Peter Stein, Legal Evolution: The Story of an Idea (Cambridge:
Cambridge University Press, 1980).
24 Henry Sumner Maine, International Law: A Series of Lectures Delivered before the University
of Cambridge, 1887 (Cambridge: Cambridge University Press, 1894).
25 The classic is Gerrit Gong, The Standard of Civilization in International Society (Oxford:
Clarendon Press, 1984).
26 Paul Vinogradoff, ‘Historical Types of International Law’, Bibliotheca Visseriana, 1 (1923),
p. 69.
27 Vinogradoff, ‘Historical Types’, p. 5.
28 See e.g. Peter Wagner, History and Theory of the Social Sciences (London: Sage, 2001),
pp. 7−53.
29 See David Kennedy, ‘The Move to Institutions’, Cardozo Law Review 8, 1987, p. 841.
30 Understandably, Shawcross deleted those parts from his speeches. See Martti Koskenniemi,
‘Hersch Lauterpacht 1897−1960’, in J. Beatson and R. Zimmermann, Jurists Uprooted
(Oxford: Oxford University Press, 2004), pp. 639−41.
31 Alfred Zimmern, League of Nations and the Rule of Law 1918−1935 (London: Macmillan,
1936), pp. 483−96.
32 E. H. Carr, The Twenty Years’ Crisis 1919−1939, 2nd edn (London: Macmillan, 1946), p. 50.
33 UNGA Res 44/23 (17 November 1989). The best overview of the constitutionalization
debate is now Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of
International Law (Oxford: Oxford University Press, 2009).
34 UNGA Res 55/22 (8 September 2000). For an assessment of the cycle by a participant,
see J. Lindgren Alves, ‘The UN Social Agenda against Postmodern Unreason’, Thesaurus
Acroasiarum 28, 1999, pp. 51−108.
35 Anne Orford, International Authority and the Responsibility to Protect (Cambridge:
Cambridge University Press, 2010).
36 See e.g. Magdalena Kmak, The Scope and Application of the Principle of Universal
Jurisdiction (Helsinki: Erik Castern Institute, 2011).

37 United Nations, Collection of Essays by Legal Advisers of States, Legal Advisers of

International Organizations and Practitioners in the Field of International Law (New York:
United Nations, 1999). I have discussed these problems in my contribution to the book,
recently republished as ‘Between Commitment and Cynicism: Outline of a Theory of
International Law and Practice’, in The Politics of International Law (Oxford: Hart, 2011),
pp. 276−84.
38 I have discussed the ‘kitsch’ aspect of universalism in ‘International Law in Europe: Between
Tradition and Renewal’, European Journal of International Law 16, 2005, pp. 113−24.
39 J. K. Stephen, International Law and International Relations (London: Macmillan, 1884),
p. 25.
40 Stephen, International Law, p. 12.
41 For example, it has been assessed that, in 1913, 78 per cent of the courses on international
relations at US colleges and universities were on international law while 18 per cent were
on diplomatic history. Ronald Rogowski, ’International Politics: The Past as Science’,
International Studies Quarterly 12, 1968, p. 398 n10.
42 James Bryce, International Relations (New York: Macmillan, 1922), p. 2.
43 Bryce, International Relations, p. 2.
44 For a recent discussion, see Mark Mazower, No Enchanted Palace: The End of Empire and
the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press,
2009), pp. 66−103.
45 Some corrections may now be sought from Brian Schmidt, The Political Discourse of
Anarchy (Albany: State University of New York, 1998), and my The Gentle Civilizer of
Nations.
46 Carr, The Twenty Years’ Crisis, p. 89.
47 On Carr’s own brand of socialist utopianism as it appears in The Twenty Years’ Crisis, see
Charles Jones, E. H. Carr and International Relations: A Duty to Lie (Cambridge: Cambridge
University Press, 1998), pp. 53−65, 128−32.
48 Hans Morgenthau, ‘Positivism, Functionalism and International Law’, American Journal of
International Law 34, 1940, pp. 260, 261.
49 On Morgenthau’s encounter with American social science, see Oliver Jütersonke,
Morgenthau, Law and Realism (Cambridge: Cambridge University Press, 2010), pp. 131−43.
50 Thus Morgenthau attacked Carr for having ‘no transcendent point of view from which to sur-
vey the political scene and to appraise the phenomenon of power’, in ‘The Political Science
of E. H. Carr’, World Politics 1, 1948, pp. 12−134, quoted in Jütersonke, Morgenthau, p. 170
(see also pp. 167−74). For the Weimar refugees’ views on global government, see William
E. Scheuerman, ‘The (Classical) Realist Vision of Global Reform’, International Theory
2, 2010, pp. 246−82.
51 Barry Buzan and Richard Little, International Systems in World History (Oxford: Oxford
University Press, 2000), p. 19.
52 See further my ‘Miserable Comforters: International Relations as a New Natural Law’,
European Journal of International Relations 15, 2009, pp. 395−422.
53 Kenneth Waltz, Theory of International Politics (Reading, MA: Addison-Wesley, 1979),
p. 199.
54 Wilhelm G. Grewe, The Epochs of International Law (Berlin: De Gruyter, 2000). The
source of inspiration is of course Carl Schmitt, Der Nomos der Erde im Völkerrecht des Ius
publicum europeaum (Berlin: Duncker & Humblot, 1950). See also my review of Grewe in
International and Comparative Law Quarterly 51, 2002, pp. 496−501.
55 See Benedict Kingsbury, ‘Legal Positivism and Normative Politics: International Society,
Balance of Power and Lassa Oppenheim’s Positive International Law’, European Journal of

Koskenniemi 29
International Law, 13, 2002, pp. 401−36, and Heinrich Triepel, Die Hegemonie: Ein Buch
von führenden Staaten, reprint of 2nd edn (Aalen: Scientia, 1974).
56 E.g. Antony Anghie, Imperialism, Sovereignty and the Making of International Law
(Cambridge: Cambridge University Press, 2004).
57 Rogovski, ‘International Politics’, p. 402.
58 Carr, The Twenty Years’ Crisis, pp. 178, 179.
59 For one representative but uncommonly elaborate articulation of this by a leading interna-
tional lawyer, see Georges Abi-Saab, ‘Cours général de droit international public’ [1987],
Recueil des Cours, 207,1996, especially pp. 45−93. It is remarkable to what extent a straw-
man image of international law persists within international relations, perhaps owing to the
special nature of international law at US law schools and the habit of reading only English-
language texts. Even such otherwise useful recent works as those by David Armstrong
and his colleagues, or Adriana Sinclair, provide little sense of professional debates within
international law (for example, in international law journals), and while the former has a
few references to French publications, the bibliography in the latter contains only English-
language works. See David Armstrong, Theo Ferrell and Helene Lambert, International Law
and International Relations (Cambridge: Cambridge University Press, 2009), and Adriana
Sinclair, International Relations Theory and International Law: A Critical Approach
60 Aznar Gomez, ’Une vision provisoire’, p. 50.
61 Martti Koskenniemi, ‘The Mystery of Legal Obligation’, International Theory, 3, 2011,
pp. 319–325.
62 See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal
Argument, reissued with a new epilogue (Cambridge: Cambridge University Press, 2005),
and ‘The Politics of International Law’ plus ‘The Politics of International Law – 20 Years
Later’, now published in Koskenniemi, The Politics of International Law, pp. 35−75.
63 Julius Stone, ‘Problems Confronting Sociological Enquiries Concerning International Law’,
Recueil des Cours, 89, 1956, p. 84.
64 For a taxonomy of international legal doctrines in this sense, see Koskenniemi, From Apology
to Utopia, pp. 158−223.
65 For the best account of the development of international law in the US from the interwar era
to the present, see further David Kennedy, ‘When Renewal Repeats: Thinking Against the
Box’, New York University Journal of International Law and Politics, 32, 2000, pp. 373−97.
The opposition of ‘naturalism’ and ‘positivism’ in international law is as pervasive and as
much part of the ‘tyranny of false polarities’ as ‘idealism’ v. ‘realism’ and other dichotomies
in international relations, as discussed in Michael C. Williams, The Realist Tradition and the
Limits of International Relations (Cambridge: Cambridge University Press, 2005), especially
pp. 9−18 and 128−68.
66 Max Huber, Die soziologischen Gundlagen des Völkerrechts [1910] (Berlin: Rothschild,
1928).
67 Georges Scelle, Précis de droit des gens, 2 vols (Paris: Sirey, 1932−34). For a discussion, see
Koskenniemi, Gentle Civilizer, pp. 327−38.
68 See further the special issue on Alvarez, Leiden Journal of International Law, 19, 2006,
pp. 875−1016.
69 Stone, ‘Problems Confronting Sociological Enquiries’, pp. 104−14.
70 Charles de Visscher, Theory and Reality in International Law (Princeton, NJ: Princeton
University Press, 1957; 3rd edn. 1970); Percy Corbett, Law in Diplomacy (Princeton, NJ:
Princeton University Press, 1959).
71 Wolfgang Friedmann, The Changing Structure of International Law (London: Stevens and
Sons, 1964). As David Kennedy, ‘The International Style in Postwar Law and Policy’, Utah

Law Review, 7 (1994), p. 21, characterizes the period’s (US) international lawyer: (extract)
imbued with a new practical spirit, an orientation to process and policy at once contextual,
purposive and functional, the new international lawyer/academic for the sixties would be an
ethical pluralist and technician, the consummate advisor to enlightened government or
business, and the skilled architect of a new ‘transnational’ order.
72 See the discussion in Emmanuelle Jouannet, ‘La pensée juridique de Charles Chaumont’,
Revue belge de droit international, 2004, pp. 259, 280−4.
73 See China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden:
Brill, 2005). But see also Susan Marks, ‘Exploitation as a Legal Concept’, in Susan Marks,
International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge
University Press, 2008), pp. 281−307, as well as the other essays in that useful volume.
74 See e.g. David Kennedy, ‘The “Rule of Law”, Political Choices, and Development
Common Sense’, in David M. Trubek and Alvaro Santos, The New Law and Economic
Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2006),
especially pp. 158−73.
75 For general studies, see Knud Krakau, Missionsbewusstsein und Völkerrechtsdoktrin in
den vereinigten Staaten (Frankfurt: Metzner, 1967); Bent Rosenthal, Étude de l’œuvre
de Myres S. McDougal en droit international public (Paris: LDGJ, 1970). More recently,
see Lucie Delabie, Approches américaines du droit international : entre unité et diversité
(Paris: Pedone, 2011). For a sympathetic and contextualizing but critical discussion by a
partial fellow-traveller, see Richard Falk, ‘Casting the Spell: The New Haven School of
International Law’, Yale Law Journal, 107, 1995, pp. 1991−2008.
76 The indispensable work now is Hengameh Saberi, ‘Pragmatism and International Law in the
United States: Old Puzzles and Forgotten Promises’ (unpublished PhD thesis, Harvard Law
School, 2010), on file with the author.
77 See Richard Falk, The Status of Law in the International Society (Princeton, NJ: Princeton
University Press, 1970), and Abram Chayes and Antonia Chayes, The New Sovereignty.
Compliance with International Agreements (Cambridge, MA: Harvard University Press,
1998). For Chayes’s early work, which examines the role of law in the Cuban quaran-
tine, see his The Cuban Missile Crisis: International Crises and the Role of Law (New
York: Oxford University Press, 1974). For a discussion of the US-based ‘process-school’,
see Mary Ellen O’Connell, ‘New International Legal Process’, in Steven R. Ratner and
Anne-Marie Slaughter, The Methods of International Law (Washington, DC: American
Society of International Law, 2004), pp. 79−107.
78 David Kennedy, ‘Tom Franck and the Manhattan School’, New York University Journal of
International Law and Politics, 35, 2003, pp. 397−435.
79 Thomas M. Franck, The Power of Legitimacy among Nations (Oxford: Oxford University
Press, 1990).
80 See e.g. Thomas M. Franck, ‘The Emerging Right of Democratic Governance’, American
Journal of International Law, 86, 1992, pp. 46−91; Thomas M. Franck, The Empowered
Self: Law and Society in the Age of Individualism (Oxford: Oxford University Press,
1999); and discussion in Martti Koskenniemi, ‘Legal Cosmopolitanism: Tom Franck’s
Messianic World’, New York University Journal of International Law and Politics, 35, 2003,
pp. 471−86.
81 Morton A. Kaplan and Nicholas de B. Katzenbach, The Political Foundations of International
Law (New York: Wiley, 1961), p. 3.
82 Kaplan and Katzenbach, The Political Foundations of International Law, p. 5.
83 Kaplan and Katzenbach, The Political Foundations of International Law, p. 352.
84 William D. Coplin, The Functions of International Law: An Introduction to the Role of
International Law in the Contemporary World (New York: Rand McNally, 1966).

Koskenniemi 31
85 Wesley L. Gould and Michael Barkun, International Law and the Social Sciences (Princeton,
NJ: Princeton University Press, 1970), p. 100.
86 For a review, see Anne-Marie Slaughter, Stephan Tulumello and Stepan Wood, ‘International
Law and International Relations Theory: A New Generation of Scholarship’, American
Journal of International Law, 92, 1998, p. 367.
87 Anne-Marie Slaughter Burley, ‘International Law and International Relations: A Dual
Agenda’, American Journal of International Law, 87, 1993, pp. 2056−239.
88 Judith Goldstein, Miles Kahler, Robert Keohane and Anne-Marie Slaughter, Legalization in
World Politics (Cambridge, MA: MIT Press, 2000).
89 For this point, see Jan Klabbers, ‘The Relative Autonomy of International Law or the Forgotten
Politics of Interdisciplinarity’, Journal of International Law and International Relations,
1, 2005, pp. 35−48; Koskenniemi, ‘Miserable Comforters’, pp. 395−422.
90 See especially Susan Marks, The Riddle of all Constitutions: International Law, Democracy,
and the Critique of Ideology (Oxford: Oxford University Press, 2000).
91 See e.g. Ryan Goodman and Derek Jinks, ‘Incomplete Internalization and Compliance with
Human Rights Law’, European Journal of International Law, 19, 2008, p. 725.
92 For a useful discussion, see Maja Zehfuss, Constructivism in International Relations:
The Politics of Reality (Cambridge: Cambridge University Press, 2002). See also Jeffrey
T. Checkel, ‘The Constructivist Turn in International Relations Theory’, World Politics, 50,
1998, pp. 324−48; Steve Smith, ‘The Discipline of International Relations: Still an American
Social Science?’, British Journal of Politics and International Relations, 2, 2000, pp. 383−92;
and, more recently, John Gunnell, ‘Social Scientific Inquiry and Meta-Theoretical Fantasy:
The Case of International Relations’, Review of International Studies, 37, 2011, pp. 1457−62.
93 Andrew Guzman, How International Law Works: A Rational Choice Perspective (Oxford:
Oxford University Press, 2008), p. 8.
94 Joel Trachtman, The Economic Structure of International Law (Cambridge, MA: Harvard
University Press, 2008), pp. 1, 2. ‘Epistemic virtues’ refer to ethical demands posed on
the scientist for ‘rigour’, and ‘asceticism’, ‘discipline’ and ‘sacrifice’ that characterize the
nineteenth-century turn to mechanical objectivity as the ideal of scientific production. See
further, Lorraine Daston and Peter Galison, Objectivity (New York: Zone, 2010), pp. 39−42
and passim.
95 James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism
(Chicago: Chicago University Press, 1990), pp. 55 and 82−6.
96 For an incisive critique by a Scandinavian realist, see Karl Olivecrona, Rättsordiningen:
Ideer of fakta (Lund: Gleerups 1966; in Swedish), especially pp. 113−140 (the theory of legal
rules as ‘free-standing imperatives’, unconnected to any legislative ‘intent’).
97 See, among others, Sir Robert Jennings, ‘General Course on Public International Law’,
Recueil des Cours, 121, 1967, p. 544. I have reviewed the different trajectories whereby
international lawyers have come to that same conclusion in From Apology to Utopia,
pp. 333−45. A fine recent study of the matter is Jan Klabbers, ‘Virtuous Interpretation’, in
M. Fitzmaurice et al. (eds), Treaty Interpretation and the Vienna Convention on the Law of
Treaties: 30 Years on (Leiden: Nijhoff, 2010), pp. 17−37.
98 See e.g. Benedict Kingsbury, ‘The Concept of Compliance as a Function of Competing
Conceptions of International Law’, Michigan Journal of International Law, 19, 1998,
pp. 345−72.
99 For the operation of law as an argument about rules, see the always useful Fredrick Schauer,
Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law
and in Life (Oxford, Clarendon Press, 1992).
100 Jack Goldsmith and Eric A. Posner, The Limits of International Law (Oxford: Oxford
University Press, 2005), p. 15.

101 Smith, ‘The Discipline of International Relations’, pp. 374−402.

102 See Ernest R. May, Richard Rosencrance and Zara Steiner, History and Neorealism
103 I have dealt with this theme at more length in ‘Legitimacy, Rights and Ideology: Notes
towards a Critique of the New Moral Internationalism’, Associations: Journal for Legal and
Social Theory, 7, 2003, 349−74.
104 Herbert Marcuse, One-Dimensional Man, 2nd edn (London: Routledge, 1991), pp. 115−16.
105 Alexander Wendt, ‘Why a World State Is Inevitable’, European Journal of International
Relations, 9, 2003, pp. 491−542; Heikki Patomäki, ‘Back to the Kantian “Idea for a Universal
History”? Overcoming Eurocentric Accounts of the International Problematic’, Millennium,
25, 2007, pp. 575−95.
106 Panu Minkkinen, Thinking without Desire: A First Philosophy of Law (Oxford: Hart, 1999),
p. 25.
107 As suggested by Armstrong et al., International Law and International Relations, pp. 64−113.
108 Immanuel Kant, Critique of the Power of Judgment, ed. Paul Guyer (Cambridge: Cambridge
University Press, 2000).
109 See especially Hannah Arendt, Lectures on Kant’s Political Philosophy , intro. Ronald Beiner
(Chicago: University of Chicago Press, 1992), pp. 65−77.
110 For a classic, but still pertinent critique, see David Kennedy, ‘The Turn to Interpretation’,
Southern California Law Review, 58, 1985, pp. 251−75.
111 ‘Style as Method: Letter to the Editors of the Symposium’, in Koskenniemi, Politics of
International Law, 294−306.
112 I have discussed the role of the lawyer in a foreign policy context in ‘The Place of Law in
Collective Security’, in Politics of International Law, pp. 94−103.
113 But see the essays in ‘Symposium: American−European Dialogue: Different Perceptions
of International Law’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 64,
2004, pp. 255−466.
114 See further my From Apology to Utopia, pp. 562−617.
115 The view of law (as rules) as institutional facts is famously discussed by Neil MacCormick.
See e.g. his ‘Laws, Institutions and Institutional Facts’, Law and Philosophy, 17, 1998,
pp. 301–45. Legal validity, as Luhmann has put it, is ‘operationally closed’ so that it can
take data and influences from outside itself only on its own conditions, once they have been
translated into its (teleological) language. See Niklas Luhmann, Law as a Social System,
ed. Fatima Kastner et al., trans. Klaus A. Ziegert (Oxford: Oxford University Press, 2004),
pp. 80−1 and, generally, 76−141.
116 Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for
International Law (Oxford: Oxford University Press, 2004).
117 Anthony Clark Arendt, Legal Rules and International Society (Oxford: Oxford University
Press, 1999).
118 As pointed out above, law is always both positivist and naturalist simultaneously. The relative
predominance of one over the other reflects the nature of questions about the legal order that
appear urgent at particular moments. In times of routine these are questions about the law’s
content (positivism), in times of crisis they are questions of its binding force (naturalism).
119 I have discussed this in ‘“The Lady Doth Protest Too Much”: Kosovo and the Turn to Ethics
in International Law’, in Politics of International Law, pp. 112−30.
120 Friedrich Kratochwil, ‘Legal Theory and International Law’, in David Armstrong (ed.),
Routledge Handbook of International Law (London: Routledge, 2009), p. 58.
121 One classic making this point is Roberto Mangabeira Unger, The Critical Legal Studies
Movement (Cambridge, MA: Harvard University Press, 1986). One of the few international

Koskenniemi 33
relations works (though otherwise problematic) that seeks to press this point is Adriana
Sinclair, International Relations Theory and International Law: A Critical Approach
122 The best contemporary analysis of law based on these points is Duncan Kennedy, Critique of
Adjudication: Fin-de-siècle (Cambridge, MA: Harvard University Press, 1997).
123 Hersch Lauterpacht, The Function of Law in the International Community [1933], reissued
with revisions and updates (Oxford: Oxford University Press, 2011), p. 432.
124 On the notion of ‘interpretative community’, see now Ian Johnstone, Power of Deliberation:
International Law, Politics and Organizations (Oxford: Oxford University Press, 2011),
pp. 33−54.
125 This is an under-appreciated point in critical jurisprudence. See Susan Marks, ‘False
Contingency’, Current Legal Problems, 62, 2009, pp. 1−21.
126 See now especially the essays in Margaret Young (ed.), Regime Interaction: Facing
Fragmentation (Cambridge: Cambridge University Press, 2011).
127 This point is usefully made against mainstream constructivism by Zehfuss, Constructivism,
pp. 226−36.
128 For a recent discussion, see Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford
129 This expression comes, of course, from Lon Fuller, The Morality of Law, rev. edn (New
Haven, CT: Yale University Press, 1969). The view of the “inner morality” has recently been
restated by Stephen Toope and Jutta Brunnée, Legitimacy and Legality in International Law:
An Interactional Account (Cambridge: Cambridge University Press, 2010).
130 This is the meaning of Kant’s ‘reflecting’ judgment in contrast to theoretical or ‘determin-
ing’ judgment, where the situation is interpreted not in its singularity but as an example
of something universal. As Arendt puts it in her interpretation of this idea, ‘reflecting
judgments … “derive” the rule from the particular. In this schema, one actually “perceives”
some “universal” in the particular’, Arendt, Lectures, p. 83.
131 This is of course the theme of my Politics of International Law.
132 Hans Morgenthau, Die internationale Rechtspflege: ihr Natur und ihre Grenze (Leipzig:
Noske, 1929); Lauterpacht, The Function of Law in the International Community; Julius
Stone, ‘Non liquet and the Function of Law in the International Community’, British
Year Book of International Law, 35, 1959, p. 124; Tomas M. Franck, Political Questions/
Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (Princeton, NJ: Princeton
133 The point was made with especial clarity in the Tehran Hostages case where the Court
pointed out that ‘disputes between sovereign States by their very nature are likely to occur
in political contexts’, and that if the Court ‘contrary to its settled jurisprudence’ were to see
this as a reason for refusing to deal with the case, ‘it would impose a far-reaching and unwar-
ranted restriction upon the role of the Court in the peaceful solution of international disputes’.
International Court of Justice, Tehran Hostages, Reports 1980, p. 20 (para. 37). The most
exhaustive discussion of the matter is now in International Court of Justice, Construction of
a Wall (Advisory Opinion), Reports 2004, pp. 155−6 (para. 41).
134 I am thinking here of distinctions such as Kant’s ‘political moralist’ and ‘moral politician’,
and the partly contrasting Weberian distinction between ethics of ultimate ends and ethics of
responsibility. See Kant, ‘Perpetual Peace’, appendix 1, in Political Writings, pp. 116−125;
and Max Weber, ‘The Profession and Vocation of Politics’, in Political Writings, ed.
P. Lassmann and R. Speirs (Cambridge: Cambridge University Press, 1994), pp. 357−69.
135 I have dealt with this theme in extenso in ‘The Function of Law in the International
Community: 75 Years After’, British Year Book of International Law (Oxford: Oxford
University Press, 2008), pp. 353−66.

136 The reference here is, of course, to Nelson Goodman’s classic Ways of Worldmaking
(Indianapolis, IN: Hackett, 1978).
137 See Justin Rosenberg, The Empire of Civil Society (London: Verso, 1994).
138 Together with other colleagues, I have begun to examine the way international power is
organized through private law and commerce. See my ‘Empire and International Law: The
Real Spanish Contribution’, University of Toronto Law Journal, 61, 2011, pp. 1−36.
139 Philip Allott, ‘International Law and the Idea of History’, in The Health of Nations: Society
and Law Beyond the State (Cambridge: Cambridge University Press, 2002), p. 317. See also
Philip Allott, Eunomia: A New Order for a New World (Oxford: Oxford University Press,
1990), pp. 110−16.
140 Hayden White, The Content of the Form: Narrative Discourse and Historical Representation
(Baltimore, MD: Johns Hopkins University Press, 1987), p. 13.
141 Perhaps best attested in the founding of the journal International Political Sociology.
142 See e.g. Duncan Kennedy, ‘The Three Globalizations of Law and Legal Thought, 1850−2000’,
in Trubek and Santos, The New Law and Economic Development, pp. 19−73.
143 For that statement see International Court of Justice, public sitting held on Tuesday
8 December 2009, at 10 a.m., at the Peace Palace, President Owada presiding, on the
‘Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo’ (request for advisory opinion sub-
mitted by the General Assembly of the United Nations) Summary record CR 2009/30.
Martti Koskenniemi is Academy Professor at the University of Helsinki and Director of the Erik
Castrén Institute of International Law and Human Rights. He was a member of the Finnish diplo-
matic service in 1978−94 and a member of the International Law Commission (UN) in 2002−6.
His research interests today are in the field of the history of international legal thought. His publi-
cations include the Gentle Civilizer of Nations: The Rise and Fall of International Law 1870−1960
(2002), From Apology to Utopia: The Structure of International Legal Argument (1989, 2nd edn
2005) and The Politics of International Law (2011).

Law, Teleology and International Relations: An Essay in Counterdisciplinarity

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Law, Teleology and International Relations: An Essay in Counterdisciplinarity

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Law, Teleology and

I The persistence of teleology

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employed both as a descriptive device, explaining and rendering intelligible certain

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Rereading E. H. Carr’s Trevelyan Lectures, delivered almost exactly 50 years ago,

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II A brief history of teleologies

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everywhere. The constitutionalization of this or that aspect of international law became a

III Beyond teleology: ‘realism’ in politics and law

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IV Dreams of interdisciplinarity: law and international

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spread of ‘liberalism’.87 Others suggested the study of the ‘legalization of international

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to argue in a strictly ‘positivist’ manner by reference to black-letter law while at other

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course. Everyone agrees with the importance of neutrality, transparency, accountability,

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as they engaged in nation-building by appealing to ancient customs and constitutions

For nineteenth-century historians, law and constitutionalism were privileged languages

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11 Kant, ‘Idea for a Universal History’, Fourth Proposition (p. 44).

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37 United Nations, Collection of Essays by Legal Advisers of States, Legal Advisers of

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101 Smith, ‘The Discipline of International Relations’, pp. 374−402.

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