Antony Anghie and James Gathii
Introduction:
We are delighted to join you all in celebrating David’s exceptional and brilliantly transgressive career.1 He has never been one to owe allegiance to the disciplinary seductions of international law or any other discipline. He has been an innovative, indeed, radical scholar and one especially successful at that. He changed what international lawyers could write about and gave us all a license to do so. He did this through both his methodological innovations and sharp insights. For instance, his early work examining the structures of international law argument as a discourse through interdisciplinary methods was highly influential and pioneering. In addition, the range of topics he has written about, always with originality, extends from human rights, to international institutions, to international law and war, to the role of expertise in international governance-to name but some-has been extraordinary. Equally striking are his ongoing experiments in how we might write about international law. One of his classics, `Spring Break’, which integrates the `personal’ and the `political’ and `professional’ of a lawyer on a human rights mission presents a disconcerting picture of human rights work.
As a scholar he modeled this in so many ways without a care for mundane things like where his scholarship was published. He has never been one wedded to peer review journals or the law review rat race. He is unique and inspiring, a revolutionary at Harvard Law School. And we were the very fortunate beneficiaries. We thought we would set out below our individual experiences as David’s students, mentees, colleagues and then conclude with some general remarks.
Tony
I arrived at Harvard intent on applying for the SJD program and on avoiding David Kennedy. I had zealously prepared for arrival by reading the works of all the Harvard international law professors at the time. And despite my best efforts, I could not make much of International Legal Structures; or The Move to Institutions and its intimidating battalions of footnotes. Carl Landauer, whom I was to meet later, had written a review of International Legal Structures in the Harvard International Law Journal but this enhanced my understanding only slightly. But then Brian Tamanaha, who served as an advisor to all the LL.Ms, organized for David to give a talk to the LL.Ms on the subject of Legal Theory. A smattering of people attended in the dingy basement room that served as the “Graduate Lounge,” the same room in which the first Third World Approaches to International Law (“TWAIL”) Conference and so much else TWAIL-related was discussed and planned. And of course, I succumbed immediately to the worlds of inquiry that David opened even in that short presentation. What immediately attracted me was his argument that literary theory, one of my interests, could illuminate the workings of law.
One thing led to another, and I enrolled in his International Law and Institutions Course, with its thousands of pages of reading. The “prescribed text” was International Law: Cases and Materials by Henkin, Pugh, Schachter, and Smit. This was the text I had studied in my undergraduate international law course at Monash. David transformed, almost magically, my understanding of international law by using this very text. I could see then, his work on international legal structures being applied, elaborated in a way that gave us a unique perspective on international law and what he argues is its durability, its success. International law presents itself as a plausible and complete intellectual discipline by adopting a particular argumentative structure. The many analytic problems associated with sources doctrines are transferred to the systems of process and substance. But when we deal with the substance of international law, the norms that are postulated as desirable, new problems arise-which are then presented as resolved in sources. International law exists through this method of ongoing and unresolved deferment. This is a pedagogic lesson that has informed my teaching ever since. Take a classic text and then transform it by elaborating an alternative perspective or theory through the text rather than outside it.
I asked him to be my supervisor and he, fortunately, accepted. My broad intuition was that while post-modernism, structuralism, post-structuralism had been used as frameworks to revisit international law and indeed, law more generally, post-colonialism had been neglected. And so my ambition was to write a post-colonial history of international law from 1492 to the present. I’m not sure I would accept a Ph.D student who approached me to supervise such a topic. But David said “Let’s start with 1492 to 1493 and see what happens.” And so, I became a member of the first cohort of students under the new SJD program created by David. Later I was to be among the first Senior Fellows of the SJD Program. That position gave me crucial experience as a teacher in US academia.
David was laconic, hilarious, always brilliant. He was deeply committed to his students. He has an uncanny ability to understand the deeper motivations and talents and potentials of his students and how all these factors could be brought together, combined first in a thesis and, beyond, into a career as a scholar and teacher. In one of our first meetings, he said `Tony you are much better at questions than answers. But that’s okay, as long as they are good and interesting questions’. As a very uncertain and insecure graduate student, I found this advice liberating. He gave me complete freedom, indeed, pushed me, sometimes provocatively must be said, to articulate better the distinctiveness of a third world approach. And so I was continuously driven to articulate the relationship between international law and imperialism, to identify the technologies by which international law had legitimized imperialism, and how third world voices continued to be excluded in a supposedly decolonized world. And of course, his own scholarship, his brilliance in rethinking the structures of international law was inspiring, suggesting there were so many ways of understanding international law and its promise.
I often wonder what my career would have been if I had a different supervisor. Or if I had gone, in 1990, to the proper Cambridge that my father wanted me to attend, rather than its inferior version in Massachusetts. David made me believe I had something to say. And he was determined to make sure I had every opportunity and encouragement to say it, and that I would not be diverted. He could be ruthless in this regard. He adroitly sabotaged my efforts to get a job at the Iran-US Claims Tribunal when in the latter stages of my SJD, cutting me off from the lures of a career in investment arbitration. Alas, my dreams of a Porsche, and of a simple, elegant, understated Patek Philippe were never to be realized.
I spent a magical year in the original Cambridge in 2024-25. But it only confirmed to me how fortunate I was to have had David as my mentor and supervisor. And so, the further I pursue my own career as a teacher and researcher, the more deeply I appreciate what a generous and unique and inspiring scholar, teacher, mentor and colleague David is.
James
I am David’s student from the roaring 1990s – the era of a misplaced faith in free-markets and liberal democracy. It was also the decade when the former Yugoslavia collapsed leading to the Balkan wars – events that were preceded by the end of the Cold War. It was an era in which the triumphalism of the post-Cold War period and the highly unsatisfactory debates within liberalism were ripe for critique.
This context was a large part of the background for this student arriving in Cambridge from Nairobi, and it will form the backdrop of my brief remarks. My academic roots were largely formed in the thriving graduate program that David so expertly directed at Harvard Law School not too long after the end of the Cold War.
When I arrived in Cambridge in the mid-1990s from the trenches of democratic struggles against one party rule, I did not know David. My first recollection meeting him was during course selection. In my first conversation, he asked me why I was so stuck on taking Constitutional Law with Laurence Tribe – a class that I incidentally did not get into.
I told David that I did not want to take international law since I had already done that at the University of Nairobi. That was done and dusted. I believe he said something like, “but you have not taken this particular course.” I was thinking if I take David’s international law course that was a whole four or five credits, then the only other class I could take that fall was Laurence Tribe’s constitutional law class. Could I really do two four credit classes at the same time. I wondered if with all the culture shock and other practical problems like learning how to type, I could manage.
Soon I was talking to the Senior Fellows, and in particular to Antony Anghie. The next thing I knew I was enrolled in that four or five credit international law course with David. The sheer volume of materials assigned in that class was simply astounding – there were four or five mega binders and the massive Henkin casebook that Tony mentioned above. More about that in a bit.
As David’s student of the 90s I am particularly grateful that he created the space, the possibilities, the resources and encouragement to build from the ground up two early projects to interrogate the good governance agenda engaging both in an internal but also external critique, which allowed me to explore colonial continuities and their antecedents in my doctoral work. I also began mapping African international lawyers, a project unfinished to date.
For me, working with David Kennedy on my doctoral thesis was a critical juncture – I could very easily have worked with another unnamed HLS Professor who said to me that they could not understand why third world students in the Graduate Program were concerned with something that happened in the past – colonialism.
David was also wonderful in introducing us to his vast network of colleagues. He made sure to introduce me to Surakiat Sathirathai and gifted me books of Twailers in other fields like Siba Grovogui. And it was Robert Chu, another David Kennedy JD student, who told me of an opportunity to interview at Rutgers Business School where a student of Duncan Kennedy, Wayne Eastman, was teaching. That was part of what opened the door to teaching in the United States for me.
David also knew when you were ready for show and tell even though you were filled with horror that you might be disclosed for a fraud. For me that moment came in the summer of 1996 at a New Approaches to International Law event in Wisconsin. I was not on the program, and I had just arrived in Madison from Washington, D.C., where I had been interning on the dark side – at the IMF.2 I was ready to enjoy this mega conference with just about anyone whose work had formed the soundtrack of the Graduate Program of the 1990s. Just before the opening plenary, David told me that Buphinder Chimni, who had just arrived in Madison from India, was too jet-lagged. I had to fill in. I told him “no way.” I was not prepared and that in any event, I did not have anything useful to say. “No problem,” David said, “here is a print-out of our notes from our last SJD meeting. All you have to do is go and share this mapping of African Approaches to International Law that you have been working on.”
This turned out to be one of the biggest set ups because as soon as the discussion session started, the first question came from the very back end of the hall. I heard a chair screech as it was pushed back. A gentleman clearly from West Africa stood up and pulled up his pants in what was obviously fighting words. This gentleman proceeded to sternly excoriate me in his defense of Taslim Elias Olawale. The gentleman took issue with me for characterizing Taslim Elias Olawale as a contributionist. I had characterized Elias’ work as contributionist because of how it retraced the great Kingdoms of Africa’s past and the contribution of these kingdoms in shaping international law.3 I had contrasted Elias’ work to other African international law scholars who had centered the colonial encounter in Africa in their scholarship. That West African gentleman – Obiora Okafor became a great TWAIL co-conspirator of the early days, and a close friend to date. I tell that story for another reason. The meetings that David convened were critical in bringing together many streams of TWAIL work from beyond HLS – hence meeting Obiora Okafor and his supervisor Karin Mickelson who were also exploring TWAIL themes at the University of British Columbia. These meetings expanded our growing TWAIL network beyond Cambridge
Before some final reflections, I want to remember how by the end of the 1990s the heady optimism of the early 1990s had died down. At the end of that decade David was co-chair with Makau Mutua of a very memorable Annual Meeting of the American Society of International Law in 1999. The waning of this optimism was aptly reflected in the theme of the conference “Money, Power, Culture and Violence.” The co-planners/conspirators included Karen Engle & Phillippe Sands. Under David they turned this annual spectacle into an engaging critical event preceded by a full day of an Institute for Global Law and Policy (“IGLP”) type event. It was perhaps the most intellectually diverse and interesting meeting the Society has ever had to date. You can hear the echoes of David’s voice if you look at the theme statement prompting the speakers and attendees to sharpen their reflections on the liberal cosmopolitan tradition, by asking questions such as: What have been our commitments? Where have we erred? What have we learned? The theme statement went on to say: We are encouraging voices from outside this tradition, from outside the United States, and from outside our discipline to join in this review.
That year, the Grotius Lecture titled “In the Wake of Empire” was delivered by Nathaniel Berman. The lecture was structured like a conversation very much in the style of David and Martti Kosekenniemi’s 2023 book, Of Law and the World. The response to Nathaniel was another of Tony’s Professor, Judge Weeramantry. In his lecture, Berman argued that modern international law had emerged in the wake of collapsing empires, particularly after the first World War. It was a moment, Berman argued that new political identities and claims such as nationalism, anti-colonialism, as well as minority ethnic and religious claims began to reshape the international landscape.
I have to talk about David’s style and poise. I have vivid recollections of the ease with which when meeting with him he provided amazing feedback – all the while, his feet on his desk. He did this whether it was Tony Anghie’s defense4 with the late Tom Franck in his office or my SJD defense with Professor Makau Mutua, another Kennedy SJD student, who was my external examiner together with Robert Bates of the Government Department.
One last thought, his five or was it four credit international law course was formative in so many ways. I say that because David as we all know is an incredible teacher. He very quickly figured us all out, and he very effectively used the commitments that many of us wore on our sleeves to surface the limits of these commitments and the doctrinal and other foundations on which we justified them. It was also in that class that I forged relationships with many including Kerry Rittich, Outi, David Kershaw, the late Deborah Cass, Robert Wai, Treasa Dunworth and many others.
The Graduate Program
We have heard quite a bit about the Graduate Program of the 1990s, but we want to tell you in a little more detail how it created the conditions of possibility that produced students like us and other Twailers.
The Graduate Program at HLS at the time was treated as a sort of distant and troublesome but profitable province. Few if any of the full-time faculty seemed to be interested in it, and some complained about the presence of graduate students in their classes. The unstated agreement appeared to be that we would be benevolently tolerated at HLS, and in return for the prestige it bestowed on us, we would extend and consolidate the global standing of Harvard. It was David who had the vision to take the program seriously, to reconstruct it with additional requirements, rigorous modules, a preliminary year of covering specific fields that extended beyond the law school. Most importantly, David believed that we, the graduate students, had something to say. We offer the following examples to illustrate how David built a truly stellar Graduate Program.
As he always does, David has a talent in putting together a great team and as we all know only too well, he is a formidable institution builder. In our time in Cambridge that team at the Graduate Program consisted of Jorge Esquirol as Director of Academic Affairs; Athena Mutua as Director of Financial Aid and Beth Feinberg as one of the four Assistants. Then there were Patti Greene and Susan Selway. This team was superb for many reasons including not least of which was the fact that once in a while we the often impecunious third world students would find an unexpected check in our mailboxes – that made a big difference
David made sure the Graduate Program admitted a critical mass of LLM and SJD students from the Global South/Third World (the Middle East, Africa, Latin America, Australia). We remember Larissa Behrendt who was working on indigenous peoples’ rights from the European periphery. Outi Korhnenen informed us about the Russian occupation of Finland, not to mention Sweden’s earlier colonization. This critical mass of students in and of itself created the possibility to explore colonial continuities and their antecedents quite organically.
The second half of the 1990s was a moment of ferment (or as Jorge called it a “frenzy of activity”) in the graduate program with a great many projects involving comparative law, law and development, feminisms and so on. These projects and their participants sometimes overlapped and sometimes they did not. But David almost always was at the center of all these streams
It is very notable that the organizers of this meeting reflect the cross-fertilization between JD and graduate students. This genius in creating and building community and lifelong relationships was consequential for Twailers like us to be able to get a teaching job in the US.
David has been a generous reference to many law school hiring committees skeptical of hiring third world scholars who had no American JD tenure. He did not hesitate to do this.
As Tony noted above, David added rigor to the Graduate Program. He required, in addition to having a substantive legal component, that every SJD student work on an interdisciplinary and a theoretical field. Having Senior Fellows who ran workshops and over time became the institutional memory about the minimum set of readings it took to run the various workshops, a feature that became institutionalized and to date remains a legacy at the program.
He brought to campus an amazing, inspiring cast of individuals many of whom had gone before us including some here today as well as many others like Ratna Kapur, Bhupinder Chimni, Tayyab Mahmud, Heinz Klug, and the entire cast of the Critical Race Theory (“CRT”) crowd. He invited anyone and everyone who was working on interesting projects. We all know of David’s legendary convening power. He and many of the people in the graduate program brought to campus provocative speakers for the budding TWAIL network including Jeffrey Sachs, one of the architects of the shock doctrine in Eastern Europe. The Kennedy School of Government and its now defunct Harvard Institute for International Development was a key plank in neo-liberal project.
He made the contacts (phone numbers and email addresses) of all those who attended his programs available with the conference materials making it easy to continue building the network beyond individual events.
Who can forget David’s massive bibliographies in addition to his mapping projects about which we have already heard? Or the bundles of materials that accompanied all of these events? Or how he made available resources to promote his students’ projects – as he did with very generous support to fill a huge conference room in March 1997 with participants from around the world for the first TWAIL conference? He just has a genius for supporting, mentoring, and nurturing talent but also scholarly movements. For us that is TWAIL. Looking back, it was audacious to dream up TWAIL complete with a mission statement. Yet without any organizational resources and only a commitment to a set of ideas it was possible, because David provided the possibilities for us.
We can never forget David’s humility and generosity – coming to study groups in graduate student apartments, coming to events organized by his students, accepting invitations from his students once they graduated to their events. In all these ways he has modeled the true commitment to his students and their causes.
We are surely not disinterested parties in making this claim, but history has proved that the Graduate Program was extraordinarily successful. Many of the contributors to this volume were products of that program. And other graduates of the program include Jody Freeman and Ruth Okediji, both of whom are now professors at Harvard. Omri Ben Shahar is at Chicago and Oren Gross at Minnesota. Students with varied and widely divergent political positions, methodologies and subject areas flourished under the program. It was a grave injustice, that David, having built up the Graduate Program that was so neglected, was then replaced as Director. But in retrospect, the Graduate Program was historically inexplicable, given the existing institutional structures and norms; it was something of a miracle that, for those magical few years, it existed at all, but that only thanks to David’s commitment and radical vision.
This is all to say, for all these reasons David, we are truly grateful for your mentorship, your guidance, your confidence in Twailers like us and your unwavering support. Without David there would have been no TWAIL and its yet to be completed project of tracing how domination and inequality are produced and reproduced and what if anything we can do about that.
- This joint tribute is based on our respective remarks given at a Festschrift for David Kennedy at the New York University School of Law, 30th May 2023. ↩︎
- I came to this opportunity through Antony Anghie who had similarly interned under another Harvard Law School SJD, at the International Monetary Fund. That SJD was Herbert V. Morais, then one of the top legal counsel at the International Monetary Fund. ↩︎
- For more see, James Gathii, “International Law and Eurocentricity,” 9 European Journal of International Law 184 (1998). ↩︎
- That dissertation became Tony’s magnus opus, Antony Anghie, Imperialism, Sovereignty and International Law, (2004). ↩︎