Send back the lifeboats: confronting the project of saving international law.

Author:d'Aspremont, Jean
Position:Article in this issue, p. 650 - Agora: Reflections on Anthony D'Amato's 'Groundwork for International Law'
 
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The idea that international law is in crisis (1)--needing the inspired thinking and skilled practice of many kinds of international lawyers to save it--has a rich history in those countries where the enterprise of international law has been most deeply established and embraced. (2) Unsurprisingly, saving international law remains a project shared by many twenty-first-century international lawyers. (3) Such a commitment is certainly not confined to legal academics. Even some legal advisers, counsel, judges, and activists think of themselves as having a role to play in rescuing international law. Being a disengaged bystander while grave hazards supposedly threaten international law has not seemed to be a proper option for many of these professionals who share a calling for heroic self-sacrifice to salvage the ostensibly endangered entity of international law. (4)

Against this backdrop, Anthony D'Amato's concept of self-preserving international law (5) comes across as original and appealing. Indeed, if international law constitutes a self-preserving system as D'Amato claims, it is misguided to think that it needs saving. This response argues that the greatest merit of D'Amato's audacious construction is that it challenges the heroic mind-set of many twenty-first-century international lawyers.

Parts I and II of this piece sketch the various facets and implications of D'Amato's self-preserving international law as well as highlight its originality in Anglo-American scholarship. In part III, this response thereafter proposes a more nuanced understanding of how international law "preserves" itself. Part IV makes the argument that if some self-preserving aspects exist, they are the product of the collective attitudes of the professional groups organized around international law but are not intrinsic to international law itself. Because I posit that we cannot possibly have any meta-standpoint to (in) validate and rank conceptions of international law, I conclude in part V with some critical reflections on what D'Amato's concept means for those twenty-first-century international lawyers who feel that international law needs to be saved.

  1. THE ARGUMENT: D'AMATO'S SELF-PRESERVING INTERNATIONAL LAW

    According to D'Amato, international law constitutes a self-preserving, self-sustaining, and self-salvaging system. More specifically, he contends that international law is engaged in a Darwinian struggle to survive. In this struggle, coherence, equality, and the pursuit of peaceful dispute resolution ensure that the international legal system is able to preserve itself. Because international law is a self-preserving living system, it exists independently of state consent and operates to safeguard its own survival. (6)

    In making such a claim, D'Amato builds on his earlier work exploring the autopoietic character of the international legal system. (7) Autopoiesis teaches that international law's territorial and state-based configuration does not sufficiently account for how it works. (8) Legal systems interact on a functional basis beyond territorial units and nation states and achieve stability through the generation of their own parameters of validation (self-referentiality). (9) This autopoietic understanding of legal systems leaves little room for human agency. (10)

    While such features of autopoietic systems theory were already present in D'Amato's earlier work, he now refines his understanding of international law by borrowing from biological theories of the self-reproducing nature of living systems. His emphasis is on those aspects of living bodies that permit them to maintain their essential form while perpetuating themselves according to their distinctive internal organization. D'Amato gives his autopoietic concept of international law an anthropomorphic spin by envisaging it as a living body intent on survival and capable of self-perpetuation.

    While anthropomorphic concepts are common in international legal scholarship, (11) the anthropomorphic turn embraced by D'Amato comes to qualify the systemic nature of autopoietic theory. (12) In D'Amato's anthropomorphic understanding, the system of international law, accordingly, is not only self-generating (as are all autopoietic systems), but it is also self-preserving in that it is equated to a living body that develops its own means of survival.

    D'Amato's concept of self-preserving international law rests on a view in which international relations constitutes the environment of international law, so that the two are related but formally autonomous from one another. This view is consistent with the standard autopoietic premise that the system is highly dependent on its environment but autonomous at the level of its own operation. (13)

    While these aspects of D'Amato's concepts of self-preserving international law are clearly and explicitly articulated in his famous enchanting style, some other aspects of his concept of international law are either undefined or ambiguous. For instance, D'Amato does not address the immense challenge of incommensurability underlying his enterprise: Why and how exactly can we extrapolate from the experiences of living things to those of a legal system?

    D'Amato's readers are also entitled to some explanation of whether his concept of a self-preserving system is intended to be a descriptive or a normative account of law. It is unclear whether D'Amato is only trying to describe matters as they are or constructing a normative theory that seeks to revolutionize the way that we think about international law with a view to simultaneously "helping] litigators and negotiators make their international-law arguments sounder and more persuasive." (14) This ambiguity is exacerbated by D'Amato's recourse to axiomatic reasoning, an approach that appears slightly suspicious of false objectivism. This equivocality is further aggravated by constant oscillations between deductive and inductive moves. (15) Such methodological hybridity, however common that it may be in international legal scholarship, obfuscates the nature of D'Amato's concept of self-preserving international law.

  2. THE CONTEXT: SELF-PRESERVING INTERNATIONAL LAW IN AMERICAN INTERNATIONAL LEGAL SCHOLARSHIP

    D'Amato's concept of self-preserving international law constitutes a serious rupture with mainstream approaches to international law currently found in the United States. This concept is where the originality of his construction lies. Although dominant in Europe, systemic conceptions of international law are often contested in the American tradition of international law. (16) This is not to say that the idea of a system is unknown to this tradition, for, according to its common-law foundation, every adjudicatory case creates (and contributes to) a precedent-based system. (17) In that sense, the difference between the European and the American traditions lies more with their respective understandings of what constitutes a "system." (18) Even so, U.S. scholarship tends not to pursue holistic systemic approaches to international law. (19) D'Amato can accordingly be seen as a refreshing maverick within the American system-adverse community. (20) The same probably holds true for his reliance on autopoiesis system theories, which have otherwise had only limited currency in American approaches to international law.

    D Amato's most significant estrangement from the mainstream American legal scholarship lies elsewhere, however. Clearly, much has changed since the time when the American Journal of International Law was founded to produce orderly knowledge of international law based on analysis of cases and specific texts. (21) Anyone seeking to navigate American international legal scholarship must now be methodologically multilingual. (22) Each of the different streams of that scholarship is constituted by and constitutive of methodological choices that may be difficult to decipher. Some are regulatory in...

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