‘Where is Martti Koskenniemi?’

To set rather an authentic atmosphere before or while reading the blog post, the author suggests the following artistic pieces to consult (here, here, here). The recommended pieces demonstrate that music, literature, and art differ in different places, and it is this diversity rather than generality what makes them exquisite.

In early May, Oona A. Hathaway and John D. Bowers published their paper outlining the Joint Symposium on International and Comparative Law Scholarship, which is composed of eight other articles addressing issues that ranged from empirical analysis of legal publications, research funding and footprints of scholarship to tendencies of interdisciplinarity in the international legal research. Based on the Hein dataset, Hathaway and Bowers, in particular, presented empirical studies on relevant authors and journals in modern-day international legal scholarship. While the authors themselves agreed with possible methodological caveats in their paper, some members of the international legal community raised a reasoned critique of the parochialism and US-centrism of this study (here, here, and here). In particular, several scholars made a legitimate inquiry: ‘Where is Martti Koskenniemi in your list of most-cited authors?’ (here, here, and here) while also criticizing the systematic problem of the Hein dataset as not representing the generality of the actual standing of international legal scholarship.

The inquiry on the exclusion of Koskenniemi from the list of highly cited scholars may seem to be a scholarly concern against the exclusivity of the invisible college of international lawyers when the US legal academia is concerned (although it is fair to note that the authors did not engage in counting citations of international law books which disadvantaged Koskenniemi). However, as I argue in this blog post, such inquiries in their hidden message remain fixated on individuals and spatially West-oriented. While I agree with legal scholars (both the authors of the study and their critiques) that much of international law debates occur in the Transatlantic space and thus is parochial (see Anthea Roberts’ comment on the study), I also argue that the international legal community is fragmented, and studying the impact of scholarship is nearly impossible in general terms, yet alone if language factor is concerned. Therefore, I claim that the generality critique is axiomatized based on predispositions that there is only a single way to deconstruct the international legal scholarship against the invisible existence of multiple axiomatic systems as internalised in multiple divisible colleges.

Lack of Representativeness?

To better grasp contemporary developments of international legal scholarship, Hathaway and Bower’s article ought to be read in combination with other articles of said Symposium, as the authors themselves proclaim. If read in its entirety, these articles provide a more or less accurate look at how international legal scholarship functions in the contemporary era, especially in the Transatlantic space. However, even from the Transatlantic vision, several aspects are clearly omitted from their study – the lack of generality of their study is the number one drawback – that is ultimately criticized in social media (here, here, and here).

The-lack-of-generality-critique, however, is itself controversial as it remains not determined what group of scholars these criticizers have in mind. Would Hathaway and Bower’s article be complete if they included Koskenniemi and several other scholars from Transatlantic space? I believe not, as it would not even be complete if they added the scholarship of B.S. Chimni and other celebrities of international law from non-Western space. That is because the structure of the epistemic community of international lawyers is so decentralized, fragmented, and hidden from the everyday life of the “invisible college” that the omission of dozens of groups from general studies is inevitable. From that perspective, there is a certain axiomatic predisposition within Mainstream International Legal Scholarship (MAIL) on how to view, assess, reflect, and research international law irrespective of school of thought – MAIL or Third World Approaches to International Law (TWAIL). But as Gödel’s incompleteness theorem proclaims mathematical statements being valid within different axiomatic systems, within international legal scholarship also, finding the validity of legal claims is subjectivized with axioms validated within MAIL, TWAIL, or New Haven School of International Law, etc.

To view that problematising aspect from the spatial viewpoint, as Anthea Roberts argued in her book Is International Law International?, the speculative argumentation that there exists a Schachterian invisible college is not supported by empirical reality as division rather than unity is what describes an epistemic community of international lawyers. In my recent EJIL article, I further elaborate on divisibility. I define the divisible college

as an epistemic community of international lawyers that practice and research international law within social arrangements that are closed, unknown or hard to access by others and where unison between members is inherently based on a common historical past, a shared knowledge of competence, including a common language, and a common style of reasoning.

From that perspective, what calls for critique in reading Hathaway and Bower’s article, especially in terms of inclusivity drawback, is a type of argument that is either spatially restricted in Transatlantic vision or is utopic in its approach of proclaiming one unitary and universal epistemic community of international lawyers. Yet, not only do the closeness and the somewhat difficult access to divisible colleges, as I argue in my article, make the generality critique separated from possible achievement of empirical reality, but it also persuades us to recognize that a decentralized and fragmented view of the epistemic community of international lawyers may help to contextualize studies, avoid faux generalization, and move the discussion over realities that define both spatially and substantially fragmented system of international law.

Recognizing the Fragmented View

From a structural standpoint, the Symposium also sets more ambitious plans that it spatially could archive. For instance, in their article on the impact of research funding over international legal scholarship, Daniel Peat and Cecily Rose claim that although their study focuses on two specific funding schemes (NRF and ERC), they also proclaim that ‘the findings are potentially relevant for scholars based in jurisdictions around the world.’ Yet even their study in terms of spatial generality remains in the realm of Trans-Atlanticism. That is because not only in other divisible colleges, doctrinal style of legal writings – contrary to what authors claim in their article – remains predominant and less adjusted by non-doctrinal methods, but the impact of funding agencies is structurally different in different places. For instance, the Russian Science Foundation – the leading research funding body of the Russian Federation (RF) – currently finances three projects in public international law. Out of three projects, two findings were provided to scholars from MGIMO University (here and here), while one is conducted at the Russian State University of Justice. These projects’ objectives – content and methodology-wise – fully align with the Russian revisionist vision of international legal order. In this respect, one may see that in Russia, the interests, knowledge, and expertise of panel experts who select which projects to fund are not inherently value-neutral and based on expertise but are shadowed by the political interest of ruling elites. Under these schemes, universities related to Russian MFA get better opportunities to receive funding to narrate the official lines of RF’s foreign policy.

Against this decentralized viewing, some panacea has been provided by the article written by Pierre-Hugues Verdier on Comparative International Law and the Rise of Regional Journals. In the article, the author claims that regional journals can act as channels between the generality and regional particularity. Indeed, the proliferation of regional international law journals is indicative that regional particularism and spatial fragmentation are treated seriously in later periods. However, methodologically, including journals predominantly published in English diminishes the credibility of genuine engagement with regional epistemic communities. That is because the journals that the author observes­ – the Asian Journal of International Law, the African Journal of International and Comparative Law, and the Chinese Journal of International Law – may have a regional focus, but they hardly showcase the regionality that separates specific epistemic communities from so-called invisible college. Neither their editorial boards, authors, nor their readership reflect how international legal scholarship is developed in Africa and Asia (even there, there are multiple colleges, including the ones interacting with the Western scholars) as envisioned by local lawyers who speak local languages. Usually, these journals remain places of publication of the same people who interact more with their Western colleagues than their local counterparts who neither speak English nor genuinely ever engage in discussions of invisible colleges in conferences, publication milieus, and other networking activities.

That is because the invisible college, in its broader geographical composition, remains a classist structure where funding, network, and other resources predispose successful membership. Therefore, these journals remain only regional affirmations that the path to invisible colleges ought to pass through elite publishing, communication with Anglophone scholarship, and participation in conferences in the West. Ultimately, they never become places of regional discussion in a radical way to showcase sincere sentiments about structures of international law. A case in point is the recent issue of the Asian Journal of International Law. Out of eight articles published in that issue, only one scholar resides in Asia, in Singapore; the rest of the authors, although they may have an Asian background, represent Western academia (US, Europe, and Australia).

These structural problems lead to the affirmation that recognition of a decentralized and fragmented vision remains the “Golden mean” of studying international legal scholarship.

Where Is the Hidden Other?

The epistemic community of international lawyers is divided. This division is so profound that any study hinting at generality in its findings regarding international legal scholarship will be deemed incomplete and parochial. Rather than delving into debates about how various academic structures like publication, education, and funding influence international legal research, focusing on a decentralized approach to epistemic communities is the more tailored approach. If that is the case, in addition to pondering the question ‘Where is Martti Koskenniemi?’, it is also crucial to inquire about the location of the hidden “Other.”