Editorial #18: On the Summer of Our Discontent
It has been a long, long spring, and by now we have all learned to not count on a “Sommerloch” to allow us to catch our collective breath. Yet, while there is seemingly no interval to this, let’s face it, the shitshow called the 2020s, we as international legal scholars are by no means a captive audience reduced to oohing and aahing at another spectacle of climate catastrophe, heartbreaking and infuriating acts of violence, reversal of long-fought for rights, and, of course war. Instead, we are actively being called upon the stage by governments and media and even given speaking parts.
And it is a tempting prospect. In Hag-Seed, Margaret Atwood’s modern re-telling of The Tempest, the main character immerses himself in the play as director and actor, looking to find justice through the infallible logic of the plot. Many of us have by now followed the call to the stage of international legal debate with similar hopes, though instead of playing the all-powerful Prospero pulling the strings and finally revealing the grand scheme of things, we might have found ourselves cast more often in the role of the Greek chorus.
The script that has been handed out would like to see us pronounce objective truths and absolute certainties about What The Law Is. Since there is a war of (mis)information and historicized imperialism being fought in the Ukrainian theater and in newsfeeds worldwide, particular attention is likely to be given to those lawyers whose monologues are underlined with seemingly irrefutable claims of objective historic fact, and who are willing to spread these claims in the biblical way, that is, to the uttermost parts of the earth. Yet, as Anne Orford reminds us in her interview on her book International Law and the Politics of History,
“[i]nternational law and its histories are made rather than found. …there is no uncontested, impartial, or ‘verifiable’ answer to the question ‘what is the history of international law a history of?’, because there is no uncontested, impartial or verifiable answer to the question ‘what is international law?’. … Rather than engaging in a modernist search for the correct method that will offer us an impartial account of the law, I argue we need to ask instead which (partisan and political) vision of the history of international law best helps us to grasp the current moment and why. In the end, no other discipline or method can lift us above the political battle or offer us an escape from uncertainty. All that is available is to construct an argument and commit to the premises or values underpinning it. I conclude that we need to take responsibility for those choices and their implications, and to recognise that doing so is an ongoing, evolving process.”
Studying this role thus requires a tolerance for ambiguity. We know that in writing our histories, we can never start on a clean slate – we missed the exposition, and we are stepping into the fray in the middle of the third act, trying to make sense of the stabbing and the crying.
As scholars, we do not belong to either house, be they alike in dignity or not, but neither do we stay silent on injustices for the sake of neutrality. The most compelling dramatis personae of the stage, from Antigone to Hamlet to the Youngers, are after all those who embody the moral dilemmas, impossible choices, and human weaknesses inherent in the pursuit of justice. And while as lawyerswe are rarely cast in the leading parts, by inhabiting the grey areas of the scenery, we can actually direct the spotlight towards these, and sometimes even to things that are supposed to stay behind the curtain.
Therefore, we act our part as we have always done, by dreaming up (non-)utopias, challenging long-standing certainties, protecting individual rights or the future of the planet, or staying ahead of breaking technological developments. But we only act well if and where we fill our roles with a sense of creative responsibility and artistic independence and refuse to be reduced to prompters of those who have always taken standing center stage as their given right.