Transcending Jurisprudence

376 Pages·2010·9.72 MB·English

S.G. Sreejith
Transcending Jurisprudence
A Critique of the Architectonics of International Law
Academic Dissertation
to be presented,
with the permission of the Faculty of Law of the University of Lapland,
for public discussion
in LS 10, University of Lapland, Rovaniemi,
on November 5th, 2010, at 12 O´Clock.
Acta Electronica Universitatis Lapponiensis 66
University of Lapland
Faculty of Law
Copyright: S.G. Streejith
Distributor: Lapland University Press
P.O. Box 8123
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To my maternal and paternal grandfathers,
Munshi Keshava Pillai and Chellappan Pillai, teachers par excellence
Samaani va aakoothiha samana: hrudayaani va: | Samaanamasthu vo mano yadha
va: susahasti
(As the harmony in the Universe, single be your purpose, united be your hearts,
and together be your mind)
Rig Veda (Final Sukta, Verse 4)

The inward eye that recognises the attraction of the ideal is a single eye shared by
all human minds. The soul of each human being recognises itself in the souls of all
other human beings.

Time has come for the single eye of the human species to see the universal idea of
human happiness

Musings of Edmund Jennings in,
Philip Allott, Invisible Power 2: A
Metaphysical Adventure Story
(Bloomington: Xlibris, 2008), p.115.
TABLE OF CONTENTS

ACKNOWLEDGEMENTS

INTRODUCTION…………………………………………………………...... 1-17

CHAPTER I………………………………………………………………….(18-50)
MISGUIDED SOCIALITY, LOST HUMANITY:
INTERNATIONAL LAW AS PHENOMENOLOGY AND BEYOND 1
I. INTRODUCTION 2
II. SOCIALITY AS HUMAN REALITY 3
III. THE PHENOMENOLOGICAL PHILOSOPHY
OF INTERNATIONAL LAW 7
IV. REALITY IS A TRANSCENDENTAL SINGULARITY 13
A. Exploring the Transcendental Singularity 15
B. Situating the Transcendental Singularity:
A Rationalist Perspective 19
V. LAW AS A SUPER-INTELLIGENT GUIDANCE 22
A. A New Concept of Law 23
B. “The Law”: A Sublime Discipline 27
VI. CONCLUSION 31

CHAPTER II……………………………………………………………… ..(51-154)
THE TRAGEDY OF THE PHILOSOPHY OF
INTERNATIONAL LAW 1
I. INTRODUCTION 1
II. THE CONCEPT OF COMMON INTEREST 10
A. Common Interest as Philosophy 10
B. Common Interest as Doctrine 18
1. TWAIL: Means Did Not Justify the End 21
2. Global Governance: A Distorted Conception 28
a. Governance is Politics 30
b. Governance Ought Not To Have Been Thus:
A Postmodern/Quantum Turn? 37
C. Reality Perceptions about Common Interest:
Philosophy against Doctrine 44
III. THE CONCEPT OF MARKET INTEREST 52
A. Market as Ideology 53
B. Market Interest as Doctrine 58
1. Economic Analysis of International Law 59
a. Misguided Rationality:
A Response to Economic Analysis of International Law 68
C. Reality Perceptions about Market Interest:
The Dominion of Ideology 76
i
IV. A JUXTAPOSITION OF COMMON INTEREST AND
MARKET INTEREST 78
A. Philosophy against Ideology 78
1. Altruism and Egoism:
The Perennial Poles of Human Thought 79
B. Doctrine against Doctrine 84
1. Structural Doctrinal Moves 85
2. Discursive Doctrinal Moves 89
V. CONCLUSION: THE TRAGEDY 96

CHAPTER III……………………………………………………………… (155-232)
PUBLIC INTERNATIONAL LAW AND THE WTO:
A RECKONING OF LEGAL POSITIVISM AND NEOLIBERALSIM 5
I. INTRODUCTION 6
II. INTERNATIONAL LAW AND THE COMMON
SKEPTICISM ABOUT ITS LEGALITY 8
III. THE WTO IN INTERNATIONAL LAW:
ASCENSION OF NORMATIVE VALUES 14
IV. THE WTO AND CLASSICAL POSITIVISM:
BENTHAM, AUSTIN, AND HART 18
A. Bentham and Utilitarianism 20
B. Austin and the Imperative Theory of Law 24
C. Hart and His Rule Theory 33
D. Summary 47
V. THE WTO AND NEOLIBERALISM 48
A. Neoliberalism: The Landscape 48
B. The WTO and Neoliberalism: Juxtapositions 55
1. International Organizations in the New World Order 56
a. International Organizations Situated 56
b. Why do International Organizations Matter? 61
C. The WTO: A Neoliberal Manifesto 63
1. Anarchy and Trade Regimes: From GATT to the WTO 64
2. The Neoliberal Strategies and Tools in the WTO 71
VI. CONCLUSION: THE RECKONING 76

CHAPTER IV……………………………………………………………….(233-322)
WHITHER INTERNATIONAL LAW, THITHER SPACE LAW:
A DISCPLINE IN TRANSITION 331
I. INTRODUCTION 332
II. A CRITIQUE OF THE EPISTEMIC CULTURE IN SPACE LAW 336
A. Advancing a New Discpline 336
B. Generality: The Hallmark 344
C. Jenks Versus McDougal: A Telling Debate Overlooked 348
1. Jenks and the Common Law of Mankind 349
2. McDougal and Policy-Oriented Jurisprudence 350
3. The Debate 354
ii
D. Space Law in the IISL 358
1. Science and Law: A Failed Equation 359
2. Pink Clouds 362
3. “Other Regime” Analogies 364
4. Commercialization: From Rules to Strategies 367
5. Summary 369
E. Space Law in International Law Textbooks 371
F. Teaching and Students 374
G. A Closed Group 376
III. UNIQUE JURISPRUDENCE: A DEFENSE OF SPACE LAW 377
A. Disjunction: A Voice of Disciplinary Renewal 380
1. Law and Legal Profession in a New World Order 381
2. The Progressive Sensibility of Space Law 383
B. Receptiveness: An Inherent Quality 386
C. When in the Market, Be a Marketer 389
D. Progressive Thinking:
Episteme and Pedagogy in Space Law 392
E. Methodological Summary and Conclusion 395
IV. A COUNTER-DEFENSE 396
A. The Renewalist Program of International Law 397
1. Lex Specialis and Lex Generalis: Beyond Doctrines 399
B. Comparable Trends: The Law of the Sea,
Human Rights Law, and Environmental Law 404
C. Methodological Summary and Conclusion 412
V. CONCLUSION 413

BIBLIOGRAPHY…………………………………………………………….(323-367)
1-45

Ashwattha…………………………………………………………………………..368

iii
Acknowledgements

This book was written in the small polar town, Rovaniemi. The town’s University of
Lapland and the University’s Faculty of Law provided the space and resources for
preparing this book. Financial support for writing this book came from the Faculty of
Law, the Northern Institute for Environmental and Minority Law (NIEM), the Institute
of Air and Space Law (IASL), the Rector of the University of Lapland, Ella and Georg
Erhnrooth Foundation, Finnish Cultural Foundation (Lapland Regional Fund),
Oikeustieteen tutkimussäätiö, and the Centre for International Mobility (CIMO).
Numerous books and periodicals provided by the library of the University of Lapland
through its shelves and databases helped building the arguments made in the book.

People who provided intellectual inputs, in one way or another, to this book include
Philip Allott, Richard Foley, Kari Hakapää (the supervisor of this work), Veijo
Heiskanen, Kamrul Hossain, C. Jayaraj, Juha Karhu, Markku Kiikeri, Jan Klabbers,
Timo Koivurova, Outi Korhonen, and Hans Köchler. Adam Stepien checked the
bibliography and Richard Foley the proofs. I thank you all.

I also thank all friends and colleagues in the University of Lapland for their motivation
and support. In this endeavor, as in all other endeavours, my family remained my
strength.

Rovaniemi
18 September 2010 S.G. Sreejith
INTRODUCTION

I

Because law is believed to be a science, legal reasoning is a scientific process.
Legal materials are products of scientific skill. Observation, justification, ratiocination,
interpretation, and quantification are a few examples of “legal skills”. A professional
academic work in the field of law is recognized only if it reflects these skills; it
qualifies as a scientific endeavor. A legal/judicial opinion is sound only if it has the
niceties of juridico-scientific—Kelsinian or Posnerian—reasoning. Without the
elements of science, any legal discourse is sheer rhetoric.
This intellectual state of affairs is not any surprise, for the prevailing belief is that
science is what gives meaning to our existence; science is the only method of inquiring
into our reality; science is the only religion whose teachings we believe
unquestioningly. No matter one has travelled the mathematical path set by theoretical
physics, because theoretical physics is a science, we believe that its findings are true.
One reason why scientific findings are deemed to be the ultimate truth is that there is
no non-science or meta-science to evaluate science. What is on hand is metaphysics or
artful philosophy. However, given that they are deemed to be the most abominable
[un]intellectual methods, we follow science for itself. Thus, science is absolute, but
what renders it absolute is the absence—if not rejection—of non-sciences; science
represents the Kantian “logical egoism”, according to which a sole intellectual
position, irrespective of its truth-value, provides the criterion of truth.
That said, I do not mean to take the opposing side vis-à-vis science here; I take
the salience attributed to science for granted. But I am sceptical: In what sense is law a
science? Is it because law has the same methods as science has? If yes, then does law
have the same role as science, the same subject-matter as science, the same philosophy
as science? Science is a method humanity has invented to inquire into matter and its
various states; law serves as guidance to good conduct for human beings in their social
interaction. Science provides visions of the material existence of humanity; law
provides visions of the inherent oneness of humanity. Science deals with gross matter;
law deals with subtle matter (mind).
There is, however, a lingering scepticism regarding the epistemological duality—
Cartesian as well as Kantian—in the subject of analysis in law and science—mind and
matter, respectively. But such scepticism neither has proper articulations nor can it
proffer convincing results.
Nevertheless, law has marked its own distinctiveness from science. According to
legal theorists (of even the extremist scientific school, i.e., Scandinavian realism), the
difference between science and law exists mainly in the existential states of the
subject- matter of both. Moreover, law is not a science in a proper scientific sense but
in a phenomenological sense. In this light, that is seen as the phenomenological base of
human thought, science undeniably becomes the dominant intellectualism of the
world. If so, it could be said that more than any methodological attributes of science,
law possesses phenomenological attributes such as objectivity, intelligibility, and a
discursive aesthetic. This view makes more sense if one conceptually tracks the
growth of law throughout nineteenth and twentieth centuries, for what one observes is
1
a proclivity on the part of scholars to provide law such a structure—a “doctrinal
complex”—ensuring that all the aforesaid phenomenological attributes of science are
present in law. It is through this structure that law reflects the behavioral properties of
science. The existence of such a structure then affirms that law is a science, legal
reasoning is scientific reasoning, and the legal mindset is a scientific one.
The scientific mindset is objective, coherent, and powerful. But at the same time
it is also impervious to human sentiments and values. Given that law is tasked to
reconcile and constructively channel conflicting human sentiments and values in
society, a scientific mindset cannot be constructive for society. Moreover, the social
system in which law functions is one of relative ideals, determination of its true values
is easier said than done. Yet, with its objective scientific mindset, law performs its
social functions, for example, the objective determination of truth (or falsity) of
subjective values, making value judgements by way of justification, and maintaining
value-coherence by way of both assertion and justification.
Thus humanity is held together by law, which objectifies all subjective human
values by way of legal/scientific acts. Like the broader universal visions of science,
law also has broader perspectives—historical, normative, situational, and linguistic
from which it views society. Owing to that scientific-social perspective, however, law
only does no more than reflect the scientifically determined values and a materially
determined reality.
From this we can deduce that existentially “science is social” and “social is
scientific”. That is to say, science has social needs to fulfil; hence it is social. And
society is a scientifically conceived and sustained structure; hence social is scientific.
But ontologically this is not the case: “science is not social” and “social is not
scientific”. Science is not social since science emerged out of human inquisitiveness—
independent of any conceptions such as the society born out of science itself—to know
their physical world, their reality, so to speak. And, social is not scientific because an
inquiry such as science, which is qualitatively independent of any social structures it
has conceived, cannot encompass society in it.
In this light, law—a constituent of the social—is existentially scientific but
ontologically non-scientific. The ontologically non-scientific nature of law is buried by
the rationalist schools of thought by imposing a phenomenological relationship
between science and law.
In this book, I take this imperfect scientificism of law seriously and discuss the
scientificism of law as reflected in international law. However, contrary to what we
generally hear from the mainstream (and its neo-rationalist redeemers) in the field
international law is not understood simply as a legal normativity providing peaceful
coexistence of states in an otherwise self-interested world. Rather, international law is
understood as a universal medium—a communitarian language—that has the
underpinning of an exotic idea-complex capable of mobilizing humanity into a “social
universe”. Yet, my intention is not to provide an ideological discourse asserting that
the universalist enterprise of international law has failed to fulfil its promises; such a
stance has the risk of supporting those claims that international law is an
ideological/ideational promise to humanity. Not heeding the critical and revolutionary
appeal such an approach has, I have chosen to conceptually invade the architectonics
of international law using pre-scientific, pre-social knowledge on the human condition
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