Online Scholarship

Helena Alviar Garcia* and Vasuki Nesiah**

David Kennedy is a towering figure in international law and has had a long and productive career, with nine books and more than 150 book chapters and articles. Yet, for contributors to this symposium issue, David and his life’s work are like the autostereograms that were all the rage in the 90s — becoming sharper as we got closer, where we came to see contours and details that were not visible from the distance of lecture podiums and monographs (see Halley for a revelatory closer look). For many of us, that stereographic process began when we entered the graduate program at Harvard Law School during the time David served as Faculty Director of the Graduate Program, from 1991 to 1997. Some of us entered it as students to pursue our doctorates; others entered it as part of the larger community that David convened around it (see Martti Koskenniemi) as New Approaches to International Law (NAIL). We were engaged and challenged by that community as we pursued and interrogated our intellectual passions, individually and collectively — from Third World Approaches to International Law (TWAIL) (see Anghie and Gathii) to human rights (see Engle and Miller), from international trade (see Thomas and Wai) to law and development (see Esquirol and Rittich). In May 2023, a larger delegation from the 1990s gathered at NYU for an in-person version of this symposium to celebrate the Kennedy legacy. This collection is but a small window into the many who attended that event, and an even smaller window into those who sat in the graduate program lounge in the Lewis building at HLS. For logistical and word-count reasons, this had to be a smaller platform than we would have liked. We hope that future iterations of this ongoing celebration will gather more of our co-travelers from that decade.

David’s work combines scholarly depth with a sense of rascally provocation, analytical rigor with critical subversion. His effort to clear the cobwebs of our political imagination has prompted us to rethink our normative pieties, question our intellectual assumptions, push against the orthodoxies of our professional habitués, and confront unexpected consequences. When we thought human rights were the solution, he asked us to consider that, in some cases, it might actually be the problem; when we viewed expertise as something to be refined and developed, he questioned its authority; and when we saw global governance as something to be consolidated, he sought to unpack and trouble it. In these and many other areas, he has not only studied the architecture of international governance but also mapped “the consciousness of the (international law) establishment” in a ground-clearing operation, creating conditions for new thinking that is challenging and exciting, uncomfortable and liberating.

Although only clear in hindsight, for those of us grappling with the passions and anxieties of our doctoral dissertations, the historical conjuncture of the 1990s provided an extraordinary and foundational backdrop. It was shaped by our disappointments with the Third World state’s promise of post-colonial liberation and our fury at the injustices unleashed in the fraught terrain of the post-Cold War habitus, when centrist liberalism was the face of the rough beasts slouching towards Bethlehem. We gathered in critique and dialogue about this Grotian moment. The large gatherings of NAIL and TWAIL that the symposium contributors mention arose from a vibrant, rich, sometimes fractious, and always stimulating intellectual community that came together again and again to discuss ideas and the state of the world: there were extended writing workshops at David and Dan’s home in Dighton (“Dighton weekends” became an institution) with Duncan Kennedy, Jerry Frug, Lucie White, and scores of others. David assembled an inspiring leadership team: Jorge Esquirel, then the Director of Academic Affairs at the HLS Graduate program, worked in collaboration with Athena Mutua, then the Director of Admissions and Financial Aid, to ensure that a vibrant intellectual culture was sustained by a supportive institutional scaffolding. There were reading groups in Annaliese Riles’ living room with Fleur Johns, Illeana Porras , and Robert Chu, hi(gh) theory debates in Nathaniel Berman’s Cambridge apartment with Outi Korhonen, Yishai Blank, Marie-Claire Belleau, Alejandro Lorite and David Kershaw. In fact, this is a vast undercount – there were many others who played pivotal roles not mentioned here because of limits of word count – the colleague who offering a transformative reading of a text we were all pouring over, the other colleague who countered the orthodoxy on this theory of international law or that and many others who left their mark on us and our dialogues. Gunter Frankeberg, Hillary Charlesworth, Ratna Kapur, Karen Knop, and others in the global community of critical international lawyers touched down in Cambridge for ongoing conversations and lifelong engagement. TWAIL was born in the graduate program lounge and over many late-night drinks with Celestine Nyamu, Rajagopal Balakrishnan, Hani Sayed, Elchi Nowrajee, and Bhupinder Chimni. Feminist Approaches to International Law (FAIL) lived up to its acronym, but only after more workshops with Gayatri Spivak, Drucilla Cornell, Sally Merry, and many others invited by David to join this or that workshop as we worked a path forward, backward, and toward unexpected horizons. Our rage at the world fueled our thinking together. The energy was intense and electric: ideas mattered.

Around the coven gathered heretics, popes, mandarins, good boys, dilettantes, archivists, insiders, outsiders, folks from the periphery of Europe, folks from the periphery of the subcontinent, deconstructors, Marxists, orthodox fanonists, apologists, utopians, Cassandras, Jeremiahs, globalists, localists, friends, critics, ironists, comedians… One of David’s signature moves was to refuse the comfort of critique from a safe distance. Again and again, in academic workshops, classrooms, and his writing, he turned the analytical lens back upon our collective selves, posing the disarming question — “What is your trauma?” — not as psychoanalytic gossip but as a pressing methodological demand. The question required us to unpack and articulate the affective and political investments that make certain injustices seem extremely urgent while causing others to fade into the background. It challenged the idea that scholarship is (or should be) detached from conviction and context, immune from the longings and disappointments that drive it.

His intellectual trajectory, celebrated in this issue, expands along topics and ideas debated in the 90s and beyond. David was wary of both technocratic expertise and moral superiority. He resisted the easy stance of the enlightened reformer, emphasizing the motivations, frustrations, and dissatisfactions that drive our most cherished progressive projects. Instead of asking whether international law, global governance, development policy, or property rights are normatively attractive in the abstract, he insisted on the more pressing questions: how do they function, what do they distribute, whom do they empower, and which forms of authority do they stabilize? This shift from aspiration and abstraction to real-world consequences unsettled the moral certainty that often accompanied progressive legal work, exposing internal tensions and highlighting their ideological frameworks.

David has been a portraitist in his spare time, and his attentiveness to form—both aesthetic and institutional—is also evident in his scholarship. Just as painting requires sustained attention to composition, texture, and light, David’s legal analysis proposes close examination of the distributional consequences of certain institutional arrangements and legal categories. He traced the shape of our disciplinary blind spots, mapped the contours of vacant spaces, analyzed the tilt, and mined the shadows for the stories they reveal.

This ethos of intellectual insurgency crystallized into a lifelong commitment to building, strengthening, and nurturing our academic community. For David, critique has never been a solo performance, nor a hierarchical exercise delivered from the mountaintop of mastery. It’s always been a collective practice, animated by an egalitarian sense that everyone in the room can contribute. By making space and time for experimentation, encouraging participation at all career stages, and resisting the temptations of distance and authority in academia, he challenged and transformed existing models.

This institutional building work is not marginal to his theory; it is an enactment of an investment in mutual understanding — a dialogical reflexivity. The communities he has helped to build embody a conception of critique as relational rather than solitary, ongoing rather than conclusive, and focused on possibility rather than closure. In this sense, his legacy lies not only in the enduring value of his subversive theories of international law and his analysis of the structures and dynamics of global governance but also in the forms of association he has facilitated: networks of inquiry where thinking is a shared risk, and disagreement signals friendship.

This spirit of intellectual vitality and agility has, despite all odds, continued through the decades that followed. The afterlives of the 1990s community have given rise to many churches (to borrow from Halley’s metaphor) and their Wiccan dissidents. Socrates is often attributed with the insight that being a teacher is like being a midwife rather than a mother—not birthing scholars but facilitating their emergence—and the infrastructure of midwifery that David created for our graduate school years in the 1990s provided a space to think and thrive as we figured out our own paths in friendship and critique.

*Helena Alviar Garcia is a Colombian SJD from Harvard Law School and lawyer from Universidad de Los Andes in Bogotá, Colombia. She served as Dean of Los Andes Law School where she also held tenure as full professor (profesora titular), teaching courses on Property, Public law, legal theory and feminist theory. She has been a visiting professor in universities in Latin America, Europe and the United States including Harvard Law School, University of Pennsylvania, Università di Torino, University of Miami, Universidad de Puerto Rico and University of Wisconsin in Madison. Notably, she was the Robert F. Kennedy Visiting Professor at Harvard Law School in 2017; the Bok Distinguished Visiting Professor at Penn Law School in 2015 and the Tinker Visiting Professor at the University of Wisconsin at Madison in 2008.

**Vasuki Nesiah teaches human rights, legal and social theory at NYU Gallatin where she is also faculty director of the Gallatin Global Fellowship in Human Rights. She has published on the history and politics of human rights, humanitarianism, international criminal law, reparations, global feminisms, and decolonization.

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 20^th 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.

Jorge Esquirol* and Kerry Rittich**

This celebration wouldn’t be complete without mentioning how many of us met. And that was at the Graduate Program at Harvard Law School (HLS). We begin here with a few words about David the administrator, as he was back then. This aspect is probably less known than David as a brilliant academic, colleague, mentor, and friend. But many of us shared the incredible experience of five years with him at the helm as faculty director. It was mostly great… we learned a lot together during those years. Some of us worked directly with him as colleagues, administrators, and teaching fellows, others as graduate students and scholars in the same orbit. This is an account not only of the projects and ideas; it is also about personalities and ways of being in the world. The two dimensions really are inseparable.  

One of the distinct pleasures was interacting with David and watching him administer away. It was, in a certain way, a real-life enactment of many of the ideas being collectively worked out at the time.  Exploring “new approaches to international law” was not just a transformative perspective on the operation and application of the discipline, it was also a way of interacting both institutionally and personally. There are many intuitions and habits learned back then that still characterize and mark much of what we do today. They have also been picked up by others far and wide, way beyond a limited circle of colleagues and friends. Observing David interact with others was as illuminating as reading one of his articles. 

In fact, if ever in a jam – a difficult meeting, a tense situation – a useful heuristic for those who know him is: how would David handle this? And, probably, a good way of dealing with it will come to mind. After a while, it becomes second nature, internalized, and just a commonly shared habit. The secret is figuring out – or intuiting – what others aspire to from the interaction, their effort, their life. If you have a sense of where someone wants to go, you can probably figure out a good way to interact with them, and maybe even meld your hopes and objectives together. David often talks about “people with projects” – whether political, personal, or whatever – in his academic work. This is just a form of that. It’s not just a good way to do intellectual profiles of leading figures like John Jackson or Hans Kelsen. It’s also a good way of reflecting on interactions with others. Of course, it can be unnerving. People sometimes don’t want to be figured out. 

The other big insight is David’s ability to look unflinchingly at the underside of things, people, and ideals. There is a close parallel here to his academic work on the dark side of human rights, liberal legality, and international law. Just as many well-meaning or well-regarded laws and institutions harbor a dark side and produce (unintended) negative consequences… well so, too, do human beings. Many of us have the tendency to deny it, exceptionalize it, or ignore it. But a major strength of David’s is his ability to sustain the gaze: to look at the ugly side and engage with it like any other. That’s a trait that propels many of his sharpest interventions. It also allows for interactions in non-Manichean ways. Encountering neuroses, character flaws, and destructiveness does not trigger immediate rejection or denial: it is a normal part of the interaction. 

The Graduate Program was not all fun and games, though. It was a constant stream of difficult challenges and puzzles, both academic and personal. A whirlwind of individuals, projects, and events. And leading with a clear vision was David, both behind the scenes and in the scene. He shows up. He shows up for the work to be done, and he has shown up for all of us here time and time again. For this and so much more we celebrate him today.   

This legacy continues. It repeatedly requires us to confront what we don’t know, what we ourselves have missed. A guiding notion of much work in this group has been to shed light on blind spots. What is it that an intense focus on a particular project, ironically enough, leaves out – makes it harder to see? Maybe there is some other approach – more promising even – that is obscured by an intense commitment to one particular framing. This is equally, if not more, important when we think of our own work considered collectively over time. There are more connections between the quotidian, interpersonal interactions of people in the HLS graduate program and the development of critical approaches to international law than might initially appear. The constant circulation of people, intellectual preoccupations, and analytical methods and frameworks in a common milieu meant that important ideas and practices were invariably shared. When it comes to the then-emerging field of law and development, the enterprise itself might even be described as shared. Yet, in retrospect it seems clear that we had some collective blind spots as well.

The shift in development strategies and techniques such as the move from planning to prototypes has now blunted some classic critical instruments: the turns to history, context, language, and the grassroots. The highwater mark of neoliberalism – a common object of critique – has now evidently passed, even if its norms and practices remain sedimented all around us. Yet although the new is not yet born and we cannot see around corners to what comes next, some things are already in view. One is that it is no longer possible to work in the field of law and development while putting aside the question of geopolitics. The return of political economy, the reemergence of strategic competition, and the entanglement of development policy and practice and geopolitical struggle are a sharp provocation to self-critique. In the best David tradition, they provide a context to reflect on the blind spots which have become starkly evident as we experience a return to the (Cold War) past.

The landscape, in brief, might be described like this: the reemergence of protectionism after a generation of ever-closer market integration, this time in the name of security or ‘strategic competition’ (a term which blurs any distinction between economic and political objectives); some reversion to import substitution industrialization driven by strategic investment and state-led industrial policy rather than market-led resource allocation, whether as is the case in Russia under the force of economic sanctions or as in the US out of national security concerns and the desire to maintain global economic primacy; and the embrace of ‘reshoring’ or ‘friendshoring’ in the wake of pandemic-induced supply chain disruptions but also to block the rise of economic rivals such as China (think: the fight over 5G surrounding Huawei). To top it off, the ‘rules-based order’ which scaffolded market-centered development is now disintegrating due not only to the split between those invested in the continuation of Anglo-American global leadership and those who have defected in favor of a multipolar world but to fractures within the collective ‘West’ as well.

Critical international lawyers spent a lot of time and energy exploring the ways in which development in the neoliberal style came up short: on its own terms, as a vehicle to promote robust economic growth; in its exclusively market-centred conception of development; under any measure of distributive justice because it so reliably funneled wealth upward and outward, aggravating the disadvantages of developing states as well as many within them; and as a basis of law and policy reform because despite its promise, it paradoxically underdetermined the paths of development and dissolved under scrutiny as a model for ‘what to do.’ Neoliberal development now looks deficient for still more reasons – because the endless commodification of spaces, people, and resources on which it turns now seems manifestly unsustainable and because practices of financialization have hollowed out the productive capacity even of advanced economies such as the US.

Yet even as we were acutely attentive to the denied politics of distribution and, at least with respect to Third World states, recognized that mainstream development paradigms and policies represented a continuation of their colonial antecedents, we spent a generation diagnosing these features and failures almost entirely apart from geopolitical considerations. On one level we didn’t take the insights about colonialism as far as we should have, by following the efforts of hegemonic powers to pursue old projects in new forms not only in in their former colonies but elsewhere too, finally landing back at home. On another level, we took the advertised objectives of neoliberal development too seriously, as if it really was just a project to integrate all states into a common economic order, one that involved, at base, a battle over rival conceptions of the market and its institutions rather than a struggle for global dominance and hegemony.

This now seems like an oversight, or at least a seriously partial vision. By some measures, it was also not very critical. If we had approached the field of law and development as a ‘world of struggle,’ analyzing it more directly through David’s lens of ‘people with projects’ and recalling Foucault’s insights about rival actors strategically constructing and deploying norms, institutions, and ideologies so as to position themselves in the war for status and advantage, then we might have kept those geostrategic considerations more centrally in our sights. Focusing less on the market and newly pervasive economic logics that seemed to organize the international order, we might have paid more attention to longstanding objectives travelling just below the surface, namely the advancement of national interests – with ‘national interest’ itself a site of contestation over distinctly private and particular concerns. Put differently, we might have been more forthright in describing neoliberal development as a dual project: one that is centrally about the allocation of legal and institutional power, using dominant market ideologies and rationales not only to facilitate transborder access to resources and markets to the benefit of corporations and other elites but to preserve the geopolitical status quo at the end of the Cold War through the repression and looting of defeated rivals and to prevent the emergence of contending hegemonic powers.

While it didn’t attract much comment or attention at the time, in the background was pax Americana. The unstated political, military, and economic dominance of the US raises a question: how much unipolar hegemony was a condition precedent to the unfolding globalized economic order, marking its possibilities and limits. Whatever the answer to this question at earlier moments, US dominance and control of that order is now viewed as a growing problem and risk, one that extends to friends and allies as well as adversaries and enemies. 

This puts us in the middle in a still unfinished project to work out the strategies of power as they operate within the governance of markets and economies and as they intersect with questions of war, peace, and security, the classic province of public international law. We might circle back at this point to a very David enterprise: devising more complex maps of the international order, maps that stage the encounter between official and unofficial action, between what is declared and what takes place backstage and at the subterranean level, maps that trace what states and institutions do as opposed to what they say or profess by way of norms and commitments. Investigating the work of power performed through mid-level rules, institutions, and decisions, we might use as models David’s famous diagrams, drawing vertical connections and horizontal distinctions, bearing in mind his skepticism of names and claims – famously, the idea that human rights might not be simply a noble moral endeavor but rather ‘part of the problem’ – in favor of a relentless investigation of the mechanics and consequences of rule. As the economy emerges as a central front of geopolitical conflict, we would also do well to take seriously his claim that war is not an exception to law but rather something that is enabled and conducted through law.

As we both mark this moment and look toward a new reality, we are reminded of the decisive role of individuals. ‘People with projects’ circulate in a world of difference as well as struggle, one that encompasses others with whom we may disagree sharply and who are working away to instantiate their own vision of reality. How those competing visions fare may well determine our shared fate on this planet. Our engagements over the years with David and friends may, we hope, provide one pathway for approaching these encounters. These engagements are based not just on interpersonal trust and care but on a commitment to surfacing disagreements and conflicts both within and among ourselves – so that we can better address the predicaments that we face.

*Jorge Esquirol is a Professor of Law at Florida International University.

**Kerry Rittich is Professor of Law, Women and Gender Studies, and Public Policy and Governance at the University of Toronto. 

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.

1. This joint tribute is based on our respective remarks given at a Festschrift for David Kennedy at the New York University School of Law, 30^th May 2023. ↩︎
2. 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. ↩︎
3. For more see, James Gathii, “International Law and Eurocentricity,” 9 European Journal of International Law 184 (1998). ↩︎
4. That dissertation became Tony’s magnus opus, Antony Anghie, Imperialism, Sovereignty and International Law, (2004). ↩︎

Karen Engle* and Zinaida Miller**

Anyone who has studied or worked with David Kennedy since at least the 1990s has likely heard him say that human rights are “over.” And yet, he has continued to dance with them over the years.  While sometimes treating human rights as central to global law and policy and at other times considering them as constituting one vocabulary among many, David’s writing demonstrates that human rights are surprisingly trenchant. 

David has been influential in each of our own journeys—even dances—with human rights. Because we first encountered him roughly fifteen years apart, we were each initially influenced by different styles of his dance. Here, we reflect on many of the moves and turns that we learned, separately and together, from him over the years. We each begin with an origin story.

Karen: In 1986, I went to law school largely to study public international law and human rights. I did not meet David, however, until after I had spent my 1L summer in Central America, in part traveling with human rights lawyers to various countries in the region to help with “training sessions” for activists on human rights law. 

I learned something about the law of human rights that summer, but I primarily came to understand that the sessions were as much about offering solidarity and a safe place for anti-government activists to meet as they were about legal content. As a gringa, I also learned that one of my greatest contributions was being a bodyguard, and not only for official encounters. In San Salvador, activists asked me to accompany them to a nightclub so that they could dance, something they had been unable to do for many months. That was my first experience of literally dancing with human rights.

I returned to law school in the fall with many questions and reflections. What roles had I played that summer? Whom if anyone had I helped? What solidarities had I built and failed to build? And could I be both a critic and a human rights lawyer?

Sometime during that second year, I met David and read his 1985 article “Spring Break,” a keen and edgy self- and other- critical account of his 1984 trip to Uruguay on a human rights mission. He “performed” the role of lawyer, as he would put it, working alongside a physician and writer. Today, of course, self-critical accounts of human rights are plentiful. But David produced one before anyone else dared. 

“Spring Break” was instrumental for my understanding of my Central American experience. While I had been troubled by my uncertainty, David relished his, seeking, as he put it, to “evoke the activist’s sense of not knowing what things mean or where they are going.” He hoped to explore “the ways our inability to know what was intrusive in a situation we had defined as foreign left us confused about our connections and responsibilities.” Despite my critical sensibilities, David said things that I had not been sure I could say. While I had felt strange about taking my swimsuit to El Salvador—tucking it into the corner of my bag just in case—David expressed that, as he was preparing for his trip, he hoped that he might return from his mission suntanned.

I don’t remember exactly when I read “Spring Break,” but I know that it was not assigned in the human rights class that I took that fall from a visiting professor. And when that professor asked for my advice on his course materials toward the end of the year, he rejected my suggestion—I recall, with a face of incredulity—that he assign the article. He might even have said that it was not a human rights piece.

David likely would not have disagreed. After he pulled the piece from the Harvard Law Review rather than make the editors’ changes that would have undermined his ability to express his “uncertainty in the face of suffering,” David published it in the Texas Law Review. In an appendix the editors requested, he did not situate the piece within the then relatively nascent field (at least in the United States) of international human right law but within the Critical Legal Studies (CLS) critique of rights and his own Derridean take on the critique. Ironically, given how controversial CLS was at the time and that David was up for tenure, it still seemed safer to affiliate with CLS than to expose the politics of the human rights movement and the (mere) humanity of those engaged in human rights work. Having already co-authored a human rights report for the medical and scientific organizations that sponsored him and others on the mission, David was arguably engaging in the split between advocacy and critique that would emerge over the years as advocates began to articulate their doubts—not in their advocacy but in “private,” or perhaps in academic writing. 

As a law professor, I taught “Spring Break” to my human rights students nearly every year for two decades (1992-2012). For most of those years, the piece provoked intense debate. While some students always found it “daring,” “refreshing,” “important self-criticism,” and “humanizing,” those who found it “narcissistic,” “disrespectful,” or “sexist” were concerned less with whether David should have thought what he wrote than with whether he should have written what he thought.

But as scholars and activists alike began to be more critical of human rights—perhaps emboldened by “Spring Break”—the piece went from being taboo to almost passe. In my own classes it was around 2005 that the debate stopped. Students generally agreed that the piece is both riveting and an accurate reflection of tensions many of them had experienced. Coincidentally, that’s when Zina was in law school and reading David’s next forays into human rights. 

Zina: The summer of 2004, after my 1L year, I interned at the International Justice Program of Human Rights Watch (HRW). Much of my work there involved the examination and analysis of jurisprudence emerging from the International Criminal Tribunals for Rwanda and Yugoslavia. I had come to law school with two vested interests that I had not fully understood as conflicting: human rights (particularly during and after conflict) and radical redistribution. After a spring 1L elective in a very doctrinal human rights class followed by a summer working in a program dedicated to international prosecutions, doubt crept in. Yet I had little language to express my frustrations.

I returned from my summer human rights work and walked right into David’s international law class. When I had told colleagues at HRW that I would be studying with David, their reactions ranged from skepticism to anger. Two years earlier, he had published “The International Human Rights Movement: Part of the Problem?”; for many at Human Rights Watch (where he had recently given a talk on the topic), the answer to that question was a resounding “no”. 

“Part of the Problem” laid out a laundry list of potential costs of the human rights movement, one that had professionalized and institutionalized in the years since “Spring Break.” David suggested that those both inside and outside human rights were prone “to treat[ing] human rights as an object of devotion rather than calculation” and thus tended to miss or avoid the potential consequences of their actions. Advocates should attend to these unintentional costs, which included excluding other emancipatory vocabularies and tools, reinforcing the state, foregrounding process, and backgrounding economy. 

“Part of the Problem?” was explicitly aimed at human rights advocates, whom it imagined as more powerful than those in “Spring Break.” David intimated that, in the process of professionalizing,      advocates and activists had been seduced by their own tools and by the promises of rights themselves. They overidentified with the victims they claimed to serve and under-identified as the governors they’d become. Some of these costs, as he identified them, were ones with which human rights advocates just preferred not to grapple; others they struggled with privately and quietly; still others they thought were inappropriate, inaccurate, or ill-advised. The article was pitched in a tone of empathetic, friendly, almost-but-not-quite-insider critique and with a deliberate assertion of how this is just a “possible” list of faults. But it presented a damning picture.

My colleagues from the summer were frustrated by David’s assertions at every level: he was critiquing the entire enterprise of human rights advocacy; he was suggesting those advocates were powerful actors rather than marginalized defenders; and he was doing so from a comfortable perch in the Ivy League. (The fact that HRW’s offices were in the Empire State Building was an amusing irony). Yet I suspect there was also an underlying understanding that the critiques were more trenchant than any of us would have preferred. For me, “Part of the Problem” offered a vocabulary for my ambivalence about the very field in which I was already investing so much energy. 

A way of thinking about my experience at HRW now that I could not have articulated then: I was surrounded by power struggles conducted by a series of people who saw power as something against which they were fighting – not something with which they were struggling. As David wrote around this time, “We [humanitarians] have a hard time focusing on costs in part because we do not think of ourselves as rulers. Other people govern, and it is our job to hold them responsible.” The human rights movement was supposed to be about resisting the state, but by 2003, the U.S. government was using human rights to go to war in Iraq and Afghanistan. The early 2000s were an inflection point for the field of human rights, one in which human rights advocates relatively rapidly had to come to terms with their own governance power, a power that David was now exposing before they were comfortable admitting to it—at least in public.  

The need to recognize costs, consequences, blind spots, and biases shaped much of my work in the years that followed, particularly in transitional justice. I came to the field with both faith and questions: faith in the power of history, memory, and justice, and questions about how we narrated, prosecuted, and sought truth—and what we didn’t seek truth about in the first place. The centrality of economic maldistribution, for example, or the indelible nature of historical racial hierarchies. From David, I learned to ask how “good people…can go wrong, can entrench, support, the very things they have learned to denounce.” And I came to understand critique as a way to strengthen foundational projects of emancipation or redistribution, rather than as some nihilistic academic blow against humanitarian practice. 

Karen and Zina

In 2004, David incorporated both “Spring Break” and “Part of the Problem” into The Dark Sides of Virtue: Reassessing International Humanitarianism, treating human rights alongside advocacy and policymaking in other areas such as refugee protection, development, and the laws of war. He identified in some of those areas of humanitarian governance the pragmatic calculations of costs and benefits that often accompany decision-making. In this sense, some actors were internalizing and even responding to critique.

After 2004, David told many of us that he had said all he needed to say about human rights in Dark Sides—and that human rights were definitely over. Yet, in 2009, he published The Rights of Spring: A Memoir of Innocence Abroad, in which he declared that human rights no longer represent “a common global rhetoric for justice.” But he didn’t exactly dance on the grave of human rights. Rather, he leaned in closer to figure out what might have happened. 

Rights of Spring is a short book that intersperses parts of “Spring Break” with David’s musings about what had happened to the human rights movement since he published it. Discussing student reactions to his teaching “Spring Break” over the years, he noted what we had both experienced in our own teaching and advocacy: “[A]s the bloom came off the rose of human rights … our trip seemed to foreshadow what many then were discovering about the dark sides of human rights advocacy.” He described professionals who now not only saw the dark sides but brought them into their practice, engaging in precisely the cost-benefit analysis he suggested was necessary in “Part of the Problem.” At the same time, they had also developed “routine practices” to blunt the effects. That is, they had absorbed the critique, “like a sponge,” as he has put it more recently.¹

Reacting to this routinization, David deepened a call for “disenchantment” that he had in fact begun at the end of Dark Sides. In Rights of Spring, he encouraged a revisitation of the “common ambivalence and confusion, excitement, boredom, and occasional vague nausea” that he had experienced and described in 1985, before human rights had become professionalized. He hoped “that in those befuddled moments we might catch a glimpse of the elusive and heady experience of human freedom and of the weight which comes with the responsibility of moments like that,” of having “the mysterious feeling of being free and responsible right now, of making it up for the first time.”

That might really have been the end of human rights for David, particularly given that he was well into a new phase of his career. In 1998, he had announced the end of “New Approaches to International Law,” a loose-knit group of public international law scholars that he had convened since the early 1990s.² In his teaching and writing, he had moved toward global governance, with an increasing focus on political economy. And in 2009, he created the Harvard Institute for Global Law and Policy (IGLP). 

Yet human rights did not disappear from his work. In 2016, he published A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy, an ambitious examination of global governance. World of Struggle argues that the unequal and hierarchical arrangements of the global order emerge as a result of pitched battles among experts who hide the distributional politics of their struggles behind a veil of rational decisionmaking. Human rights professionals are only one among many groups of experts he describes, but his critiques born in human rights are everywhere. 

Here, human rights professionals (among other experts) are indeed disenchanted—but sophisticated in their disenchantment. Rather than taking more responsibility or experiencing more freedom, they have become increasingly adept at avoiding both. Ultimately, they believe they are participating in the right project, not reinforcing an unequal, hierarchical system. The move to simultaneous sophistication and disenchantment reveals that critique is contributing to the engine rather than throwing a wrench in the works.

By the time of David’s 2023 book of conversations with Martti Koskenniemi, Of Law and the World, human rights take up even less space. Yet, in one of the conversations, David puts “human rights” as first in a list of “regimes”—followed by “European law, international economic law, comparative law, law of economic development.” Notwithstanding his tedious repetition of the term “law,” he does not attach it to human rights—they constitute the only field that doesn’t modify law.  

Indeed, for all the important work that David has done to challenge the human rights movement over the decades, he has paid remarkably little attention to the law that the movement lawyers often rely on: international and regional human rights law and often domestic constitutional law. Even when David’s principal focus was public international law, he did not see human rights as central to the field. His move to global governance both named human rights as a regime of many and left out the public law around which it is largely organized as well as the huge institutional legal capacity that it has built and maintains. 

David’s side-stepping of international human rights law, of course, has allowed him to push those in or adjacent to the human rights movement in important ways. Absorption or not, his call in “Part of the Problem?” for movement lawyers to pay attention to the distributive “effects of a wide array of [backgrounded public and private] laws that do not explicitly condone violations but nevertheless affect the incidence of violation in a society” has arguably had an impact on the expansion of human rights advocacy to address broader political economic issues. As Susan Marks demonstrates, human rights advocates now routinely claim to attend to root causes, even if they often fail to do so. 

We have also both been engaged in critiques about what human rights advocacy and transitional justice mechanisms miss or background. But we have found it important to see as part of the problem the power that the advocacy wields through public international law doctrine, particularly in its deployment of criminal law. Not only has the human rights movement supported the development of international criminal institutions but it has succeeded, through international and regional human rights law, in the imposition of positive obligations on states to police, prosecute, and increase punishment for what it considers to be serious human rights violations. The turn to criminal law, ironically, is largely in response to the sense of lack of power that David arguably experienced in “Spring Break” and that he sought to have advocates claim in the subsequent work that we have discussed.  

We find ourselves returning to human rights law not only to debunk it as a liberatory tool or to demonstrate that it is part of the problem for what it misses or enables, but to engage it for what it does quite directly. We believe that we need to counter human rights law for its negative distributive effects in the same way that we respond to the very laws that it backgrounds. We might want to use it to distribute differently. Or not. We might even want to abolish some parts of it—say, international criminal law or the imposition of positive obligations to police and punish—as part of a larger distributive project. 

Would a proposal for penal abolition lie outside the realm of possibility? David reminds us in A World of Struggle that limits continue to exist. As human rights professionals operate strategically between denunciation and pragmatism, they operate against the threat of more forceful critiques of “idolatry, enchanted tools, loss of practical sense” on the denunciation side, and “instrumentalization and loss of ethical moorings” on the pragmatic side. Calls for penal abolition would seem to exceed both. 

Where should we aim our critical projects? Should we work within the boundaries, attempt to expand them bit by bit, or lob them at places that we imagine are clearly outside the boundaries? And what do we do if we find in fact that there are fewer boundaries than we imagined? How can we prevent institutions, like human rights, capitalism, and even the carceral state, from absorbing critique? What explains the “strange resilience” of these systems, as David put it in World of Struggle?

For us, part of understanding and responding to that resilience takes the form of teaching. We learned that from David as well. Indeed, he wrote World of Struggle “with those of my students in mind who embrace the possibility that their generation could transform this world through the slow hard work of remaking the terms by which struggles are carried out, gains and losses distributed, and the status of forces consolidated as order.” The responsibility he invokes is not only for activists, advocates, and experts but also for himself as a teacher of teachers who, like us, are trying to foster in future generations the ability to find their own forms of disenchantment, struggle, and transformation. 

We started this essay by talking about David’s dance with human rights—one where maybe he started off flirtatiously (a salsa?), then settled in for a sedate waltz, got a little bored with his dance partner and tried to switch it up (sidling up to IGLP or towards political economy and away from virtue fields). And yet human rights never quite go away, wallflowers though they may occasionally be. We’ve given a lot of reasons for that. But here’s one more twist: at the end of the day, we feel secure saying that David’s primary commitment isn’t to one field, one mode of critique, or even one attitude of disenchantment. It’s to his students and their students, past and present. And that dance—those dances—will keep right on going. 

*Karen Engle is Minerva House Drysdale Regents Chair in Law and Founder and Co-director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.

**Zinaida Miller is Professor of Law & International Affairs and founding co-Faculty Director of the Center for Global Law & Justice at Northeastern University. 

1. David’s diagnosis held not just in the human rights world but also in humanitarianism. In Palestine, for instance, where Zina’s work centered, there was a long tradition of both humanitarian and human rights professionals doing their work while doubting its efficacy. By the 2000s, international humanitarian experts were unabashed about articulating the costs of much of their work in ‘subsidizing the occupation’ and yet could not imagine an alternative. Many of them walked into their jobs seeking to do unalloyed good, discovered that their work was propping up a regime of violent and systematic subordination, began to doubt their tools and practices, routinized those doubts in cynical asides and private conversations—and largely retained their belief in the work. They saw the costs and continued the work; in the end, the system remained stable. ↩︎
2. David Kennedy, When Renewal Repeats: Thinking against the Box, 32 New York University Journal of International Law and Politics 335, 490 (1999–2000). ↩︎