Martii Koskenniemi*
One feature of critique is dissecting the assumptions and patterns that condition the practice of “problem-solution.” Why do we think of something as a “problem”? The critical impulse is to take a step backwards from the apparent urgency of solving the problem now and to question where that urgency comes from. Is it real? Why, out of the many unfulfilled assignments in an unjust world, am I dealing with this and proposing that it be dealt in this way? Can it be that I am not really thinking at all, rather than just following some conventional technique, perhaps like the proverbial person with a hammer blinded by their tendency to see nails everywhere? Might this bias of mine, this deferral of thought, be actually “part of the problem”? This is not to disparage the world’s problems, or the way concerned citizens seek to deal with them. On the contrary, it is to suggest asking ourselves about the degree to which the way we have learned to deal with “problems” is actually conditioned by personal impulses or professional clichés that tend to leave things more or less the same as they were. Remember the Calvino story about the house infested with ants and the expert – Signor Baudino – who was supposed to dispose of the ants by poisoned molasses? In the end, the problem went nowhere and the villagers began to suspect that he was actually feeding the ants so as to keep his business thriving.
Attending my first workshops at Harvard on the then-vaguely termed “New Approaches” to international law in the late 1980s, I was stunned at the peculiar role that Professor David Kennedy adopted in our discussions on assigned topics. For the first 20 minutes or so he would just silently (and slightly worryingly) observe the exchange. And then he would intervene with a lengthy set of remarks that would not be on the substance of the conversation, but on the way it had proceeded and, often, ended up turning in familiar circles. He would draw our attention to how positions and counter-positions had arisen, how tendencies and alliances had been formed with apparent spontaneity – but in fact quite predictably – and how each argument tended to look away from some more or less obvious problem in it. Each participant seemed to gain energy and direction for their argument from some difficulty in the opponent’s position, while remaining blissfully ignorant of the difficulties in their own. Could it be, he would not so much suggest as imply, that the polemical force of a position had an inverse relationship to the obviousness of its problems? In a few sentences, he would then sketch the logic of our conversation, turning the glove inside out, directing the speakers’ attention to the unseen conditions of their speech. In doing this, it seemed to me, he was opening the door to a dark room of our ambition and insecurity, apprehensiveness about speaking in a crowd, and the ignorance hidden by our knowledge. How did he know? It felt strange and unsettling, but also very enlightening. It was not just miniature sociology, collective psychoanalysis, rhetorical dissection and a magician’s trick – although it was all of that. It was critique, of course – it did address the subject under discussion, but only indirectly, in the light of how we imagined it, and the limits of that imagination. Damn, how boring and predictable we were even when we did our best to impress and seduce. How to go on from there? How to think, a David would later put it, not outside but against the box?
Getting over the initial shock – at least for me, it did not happen immediately, but needed to be repeated a number of times – there was a lesson to learn about the vocabularies of law and critique, one that pointed from doctrinal substance to underlying human relationships, giving them political meaning in the performativity through which they were enacted. The fact of the matter was that few of us – and certainly not me – had had any previous experience of how to take part in such an “un-boxing” process, one of collective analysis that would seek to address a legal or political matter by illuminating the way it was conventionally being discussed. And not by “them” but by ourselves. The point, it seemed to me, was to bring to consciousness the terms of professional debate: how even in their most ostensibly “pluralist” moment, they somehow blocked the ability to analyse the way those terms reproduced some hierarchical order in the world. Like a director of a Brecht play, David intervened to remind us not to get sucked in or enchanted by our intense concentration on the material problem that we were debating. He would invite us to bear in mind the structural context and look for the dark side. The invitation was, from another perspective, to supplement one’s spontaneous participation in a debate with some sort of reflective openness to the biases underlying the debate itself.
That would be hard work. So many dichotomies were involved – substance and form, agency and structure, spontaneity and reflection, reason and desire – critical themes that in those early years we tried to deal with through engaging with structuralism and its various “post” variants. Most of us in the “New Approaches to International Law (NAIL)” were disappointed by the languages of conventional jurisprudence, analytical or continental. Trying to find exit from their clichés had, after all, been the basis on which we had come to Harvard and especially to David’s seminars. As for myself, I had found that European ideas of international legal theory and technique were quite incapable of providing a sense of my own earlier experience of legal practice and no plausible grasp of how legal power operated in the world of international institutions. The cultural sophistication connoted by the “turn to interpretation” in mainstream legal academy meant little more than rehearsing old problems in an outdated and utterly open-ended vocabulary. Somehow, to attain a critical angle to professional experience, more was needed than heavy tomes of jurisprudence. Indeed, there was something about being seduced by such tomes that blocked the view to the politics of present law. Their manner of doctrinal worldmaking was deeply questionable from the internal perspective (not living up to their often quite inflated promises) and ignorant of alternative avenues of worldmaking. In international law, especially, they tended to return over again to texts and figures dating back to the interwar period. Their ideas about institutional reform followed bland middle-of-the road ideas that had inaugurated a deeply conservative perspective as the acceptable academic standard.
When David made his inside-out performance at those early workshops, and then many times later, it seemed clear that there was much more work to be done by each of us to become sensitive to the rules and implicit assumptions that structured the human relationships that constituted the “fields” (of law, mostly) in which we would come to work academically or professionally. A first thing to learn was not to be enchanted by our own normative commitments and to take seriously the intellectual complexity of fields in which we liked to think of ourselves as critics. It was not so much to reject the conventional “solutions” they offered – that was the easy part. The difficulty was to also be able to distance ourselves momentarily from our own “critical” truths and the seduction of their performative boldness. Critical work required both being “there” as well as being a fly on the wall observing one’s performance over “there.” Impossible, of course, but also absolutely necessary. Critique was not a program or a style labelled “critical” by one or another audience, available ready-made in this book or that, to then be applied for a particular purpose. It was, as David has put it, an “posture” and an “animus,” a thing perhaps more easily definable by what it is against than what it stands for at any moment. While engaged with the world, it also insists on reflection on the manner of engagement.
There is nowhere a better account of this effort than in Spring Break, David’s account of his human rights mission to Uruguay in the 1980s, a time when the military dictatorship was slowly opening up to the world of international institutions, including human rights work. To visit political prisoners in Montevideo as part of a three-person delegation provided him with experience in human rights practice. It also offered an occasion to reflect on what it is when a Harvard professor uses their authority in front of alien officials and political prisoners while simultaneously excited by a foreign trip, worried over the implications of “cultural imperialism” and thinking about whether one “might even return tanned.” In 1985 when the narrative was first published, it addressed the insecurities and paradoxes of an emerging type of human rights work that would gradually develop into a large, transnational set of institutions and a “last utopia.” At the time, that type of critical self-reflection was novel and maybe a little shocking. But it would eventually have great pedagogical value at law schools and human rights institutions. In his 2009 discussion of that experience, David could therefore make the observation that by then human rights activism and bureaucracies had become “chastened, pragmatic, and far savvier” than a quarter century before. Even the virtuous had begun to glimpse the dark sides of virtue. Loss of innocence would be compensated by greater awareness of the possibilities and limits of rights-talk as a strategy for political success.
David’s thinking “against the box” has been sometimes attacked as cynical manoeuvring by a super-blasé academic, especially by those attached to international law’s founding clichés about peace and security and the shining light of human rights. This type of charge is not alien to a certain type of critical thinking and it is not a surprise that David may have encountered it more than others. One hears the charge today much less frequently than earlier, however, as immanent critique: Measuring the practices of legal and humanitarian institutions against their stated ideals has become more common. For example, explorations of the dark sides of international legal history – imperialism, slavery, colonization in its multiple forms – flourish today, not least owing to the support institutions led by David have given to history as a certain type of critique. From this same source also arose a new generation of scholars, beginning with Tony Anghie, that developed a “Third World Approaches to International Law” (TWAIL) as a study collective to focus on the persistence of colonial-type injustices in the global architecture. All in all, learning from and with David has been to understand that commitment to law and legal reform will remain “part of the problem” as long as unaccompanied by a realistic sense of the ideological effects it entails and a clear eye to the long-term winners and losers. Making this point over and over again has contributed to the work of many Red Cross professionals, and activists in Amnesty International or Greenpeace possess today a far greater awareness of the complex roles their institutions play in the world and a live sense that moral urge must be supplemented with a strategic eye.
But the charge of cynicism becomes frankly incomprehensible when one witnesses the pathos with which David attacks the hypocrisy of institutional elites – legal, humanitarian or whatever – for whom reform means doing what is needed so that nothing will ever change. Of course, real transformation is hard to come by, as David would be the first to acknowledge. His analysis of the understanding within international law and international relations of three successive moments of 20th century institution-building – League of Nations, United Nations, Law of the Sea Treaty – demonstrated the intense forgetting needed to believe that political desire and ambition could be hedged within procedural detail and “settlement of disputes.” Deferral of politics into process may sometimes work, no doubt. But be aware of the costs, emotional, political, intellectual, of not thinking about it too hard, or too critically. But you would never see him endorse practices that fail to measure the practitioners’ privileges against the real-world effects of what it is that they do. David would insist: Always focus on the unintended consequences and the distributional results! Remember the BATNA (i.e. “best alternative to negotiated agreement”)! I hear this often as a moral exhortation, though I doubt David would put it in those terms. He has equally little time for highfalutin academic discourse on moral principle as for the oratory of experts pontificating about how there really “is no alternative.” Whoever thought virtue is compliance with rules or implementing given truths has not read Spring Break.
Later, David’s efforts to examine the relations between the inside and the outside focused on the phenomenology of modern expertise. Everybody is engaged in some “project,” acting within a range of perceived possibilities, operating with best practices and some shared frame of truths. For an expert as an institutional actor, much of the work is precisely about framing this background, arguing or simply asserting the way the world is. Much is achieved already here, in the identification of the problems and the languages to deal with them. Out of that work, something will remain as the “truth” of the institution. And then there is the work of decision-making, supposedly consisting of implementing the truths handed down by the background in “our situation.” Throughout this process arguments are made and things asserted that consist of choices – choices between different expert vocabularies (is this an “economic” or a “human rights” matter, for example?) and the orthodoxies and heterodoxies within the relevant field and then the rules and exceptions that populate the field so that the pushing and pulling will only cease once it is performatively successful in front of some relevant audience. But as David suggests, yielding is rarely the effect of persuasion, more often simply the abandonment of resistance. David’s interest, I think, has been to replace standard narratives of institutional process as rule-application by a phenomenology of constraint. How is it that the patterned open-endedness at every level is nonetheless experienced as constraining? How is it that taking part in a professional process will allow the expert a “flight from decisional freedom and responsibility.”
This is where David’s work culminates, in the question of responsibility. At the heart of his teaching and writing has been the effort to open up the professional world to the lived experience of being a lawyer or an expert in a hierarchy of powers, mediated by such languages as law, economics or development. Whichever the technical idiom, to work as expert is to assert and argue – to choose to claim some things as “true” or “right” as the outcomes of some technical knowledge, and to do this in such a manner that other people will have to yield. And what is it that makes this work? When is this yielding experienced as altogether necessary owing to the expert’s better knowledge, and when as deferral to division of labour or institutional hierarchy? In any case, this framing hides the “politics” of the matter, the sense that there is always choice – and thus responsibility of the one that chooses. Of course, the expert may feel constrained. That is what much of professional training suggests (even as later phases of education suggest at things not being not quite so simple and thus giving rise to the predicament of bad faith). In any case, the expert does have an interest in feeling that way, and that interest is, no doubt, reciprocated by other people, both upwards and downwards the ranks of hierarchy. But how justified is that feeling?
In posing these types of questions, and teaching his friends, colleagues and students to pose them, David becomes the psychoanalyst that he was when turning his seminar group into a collective analysis of the experience of speaking the idiom of modern professionalism, foregrounding the relation between the formality of technique, and the fears and desires of the expert. Whatever the applicable rules and principles, whatever the appropriate knowledge, you always choose. But he also appears like the mystic, showing to his students that there is no final algorithm, no meta-language to compensate for the lost sense of constraint. Or as David discusses in Of War and Law, the practice of military action is saturated by rules and techniques – and yet, there is always a gap between those rules and the world of action. The rules do not draw the trigger but there is always a judgment call and responsibility. In the end the only thing you may be able say for your defence is “We dropped a few civilians, but what do you do. I’m sorry but the chick was in the way.”
I now think of David’s early interventions as a powerful pedagogical lesson about critique as not just a method to be “applied” in one’s reading and writing but as a sensibility that is internal to a critic’s life and relationships. David himself always generously attributes his own work to the inspiration received from the people around him. This is no vain gesture; he has been lucky to be surrounded by an older generation of particularly impressive critics – and he was often received as a translator of the ideas of that prior generation to younger students and colleagues. There is much in him, I think, that is keen to reveal, or maybe unravel, the way our academic and professional selves are usually produced at performances such as those early academic workshops. In those debates it became clear that critical work – in contrast to “mere work” – in a field is not the production of “solutions” to problems that the field suggests are such, but the analysis of the conditions within which things get to be understood as “problems” and the dissection of the assumptions and biases that the field offers to guide the expert as decision-maker, usually by producing that sense of being “constrained” by those materials. This was not “jurisprudence” in any of the senses I had learned in Europe. It was more about learning to live in the adult world without losing the childish sense of wonder about how things could be as they were and to take seriously and maintain the intuitive reluctance to just go along. One can always choose. It was a lesson in enlightenment.
It is amazing how many people have received this lesson by associating with “new approaches” at Harvard and elsewhere since the 1980s. Gradually, as the word kept spreading, the circle enlarged to many other locations, and the pedagogy and research took many different formats. Many would continue the work in separate directions, some taking on feminist jurisprudence or queer activism, others pushing the TWAIL project forward. Many continued as academics, others received jobs at governments, businesses or international institutions. The experience of critical wonder has continued at the Institute of Global Law and Policy, all of it dependent not only on David’s intellectual impact and but also his organizational and fund-raising activities. Critique is indeed a many-splendored thing. What will be the effect on the world of the enlightened responsibility that we learned from David remains to be seen. We live today a moment when the truths and fictions sustaining traditional institutions are overall being put to question. It cannot therefore be excluded that the hundreds of academics and professionals touched by the morality of critique, will finally, as David might put it, experience politics, instead of expertise, as our vocation.
Martti Koskenniemi
1 February 2026
*Martii Koskenniemi is Emeritus Professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights.