Jorge Esquirol* and Kerry Rittich**<\/p>\n\n\n\n
This celebration wouldn\u2019t 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\u2026 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. <\/p>\n\n\n\n
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 \u201cnew approaches to international law<\/a>\u201d 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. <\/p>\n\n\n\n In fact, if ever in a jam \u2013 a difficult meeting, a tense situation \u2013 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 \u2013 or intuiting \u2013 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 \u201cpeople with projects\u201d \u2013 whether political, personal, or whatever \u2013 in his academic work<\/a>. This is just a form of that. It\u2019s not just a good way to do intellectual profiles of leading figures like John Jackson or Hans Kelsen. It\u2019s also a good way of reflecting on interactions with others. Of course, it can be unnerving. People sometimes don\u2019t want to be figured out. <\/p>\n\n\n\n The other big insight is David\u2019s 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\u2026 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\u2019s is his ability to sustain the gaze: to look at the ugly side and engage with it like any other. That\u2019s 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. <\/p>\n\n\n\n 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. <\/p>\n\n\n\n This legacy continues. It repeatedly requires us to confront what we don\u2019t 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 \u2013 makes it harder to see? Maybe there is some other approach \u2013 more promising even \u2013 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.<\/p>\n\n\n\n The shift in development strategies and techniques such as the move from planning to prototypes<\/a> has now blunted some classic critical instruments: the turns to history, context, language, and the grassroots. The highwater mark of neoliberalism \u2013 a common object of critique \u2013 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<\/em> 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.<\/p>\n\n\n\n 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 \u2018strategic competition\u2019 (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 \u2018reshoring\u2019 or \u2018friendshoring\u2019 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 \u2018rules-based order\u2019 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 \u2018West\u2019 as well.<\/p>\n\n\n\n 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 \u2018what to do.\u2019 Neoliberal development now looks deficient for still more reasons \u2013 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.<\/p>\n\n\n\n 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\u2019t 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<\/em> 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.<\/p>\n\n\n\n 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 \u2018world of struggle,\u2019 analyzing it more directly through David\u2019s lens of \u2018people with projects\u2019 and recalling Foucault\u2019s insights<\/a> 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 \u2013 with \u2018national interest\u2019 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<\/em> 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.<\/p>\n\n\n\n While it didn\u2019t 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. <\/p>\n\n\n\n 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\u2019s famous diagrams, drawing vertical connections and horizontal distinctions, bearing in mind his skepticism of names and claims \u2013 famously, the idea that human rights might not be simply a noble moral endeavor but rather \u2018part of the problem<\/a>\u2019 \u2013 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<\/a>.<\/p>\n\n\n\n As we both mark this moment and look toward a new reality, we are reminded of the decisive role of individuals. \u2018People with projects\u2019 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 \u2013 so that we can better address the predicaments that we face.<\/p>\n\n\n\n *Jorge Esquirol is a Professor of Law at Florida International University.<\/p>\n\n\n\n **Kerry Rittich is Professor of Law, Women and Gender Studies, and Public Policy and Governance at the University of Toronto.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":" Jorge Esquirol* and Kerry Rittich** This celebration wouldn\u2019t be complete without mentioning how many of us met. And that was […]<\/p>\n","protected":false},"author":218,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_FSMCFIC_featured_image_caption":"","_FSMCFIC_featured_image_nocaption":"","_FSMCFIC_featured_image_hide":"","_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[436],"tags":[],"class_list":["post-11254","post","type-post","status-publish","format-standard","hentry","category-professor-david-kennedy-tribute"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZu3S-2Vw","jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/posts\/11254","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/users\/218"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/comments?post=11254"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/posts\/11254\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/media?parent=11254"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/categories?post=11254"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/ilj\/wp-json\/wp\/v2\/tags?post=11254"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}