Research Methodologies in EU and International Law 9781472560919, 9781841132358

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ACKNOWLEDGEMENTS This book has its origins in a project on Legal Research Methodologies in EU and International Law, sponsored by the Arts and Humanities Research Council’s (AHRC) Collaborative Doctoral Training funds (Project ID 06/160/S 1). We would, therefore, like to thank the AHRC for their support of the project. We would also like to thank all the participants in the project workshops held in Nottingham (June 2007) and Sheffield (June 2008), under the auspices of that project, who gave generously of their time to ‘road test’ the ideas in this book. The project involved the preparation of materials for the workshops, and their delivery. Many of our colleagues working in the fields of EU and international law assisted with this process. The workshops would not have been feasible without the support of the following people: Louise Ackers, Tawhida Ahmed, Arianna Andreangeli, Antonis Antoniadis, Estella Baker, Olympia Bekou, Mark Bell, Christine Byron, Paul James Cardwell, Emilie Cloatre, Richard Collins, Keleigh Couldron, Holly Cullen, Samantha Currie, Mark Flear, Maria Fletcher, Duncan French, Ezra Hasson, Jeff Kenner, Dora Kostakopoulou, Chamu Kuppuswamy, Annamaria La Chimia, Bettina Lange, Robert McCorquodale, Sorcha MacLeod, Nell Munro, Akbar Rasulov, Paul Roberts, Candida Saunders, and David Turns, all of whom gave up their time to facilitate the discussions and activities at the workshops. We are also grateful to Beverley Roberts, Danielle Sinclair, Sarah Beedham and Harriet Godfrey for administrative and organisational support. We are extremely grateful to the project partners who gave us detailed feedback on the drafts of the workshop materials, in particular to Emilie Cloatre, Holly Cullen, Bettina Lange and Mike Wilkinson. The positive impact of these individuals on the project cannot be overestimated; the errors, omissions, elisions, solecisms and all other failings, though, are solely ours.

1 Introduction: What is a ‘Methodology’? I  Introduction: The Aims of the Book ‘Why do I need theory – my PhD is complex enough without it?’ ‘Where can I find ideas about what to do to solve my research problems?’ ‘I’m not a theorist – what’s the point in theory unless it is useful for my specific research project?’ ‘What is a (legal) research methodology anyway?’ ‘How can I help my PhD students to devise and successfully complete their PhD projects?’

PhD students and their supervisors (including those in law schools) often ask these kinds of questions. Our aim in this book is to present a practical and theoretically informed approach to grappling with such questions, for those working either alone or, ideally, in collaboration with others who are interested in EU law, international law, or legal research methodologies. The book arose from our experiences, in both undertaking and supervising PhDs in EU and international law, and teaching and participating in modules on Legal Research Methods. Law PhD students required to follow such a module seem to us to fall into two distinct camps: those who self-identify as ‘theory people’ and ‘the rest’.1 To generalise, this latter group seem to feel that theory, particularly that which some call ‘capital T’ Theory, is the arcane preserve of a small group of self-identified theorists (or Theorists), and thus external to what most law PhD students or other academics do. But our experience of teaching, and learning, about legal research methods and supervising students led us to an increasing conviction that theory (or methodology) is fundamentally practical. Theory (or methodology) relates directly to the formation of research projects, and then to the practicalities of carrying out research – what research questions we ask, what data we use, how we pursue our research agendas, how we explain why we examined what we did, or why we went about it in a particular way. As such, theory (or methodology) has practical consequences for research. Thus, for us, developing an understanding of different possible theoretical and/or methodological positions which inform international or EU legal research is all about the 1   We are not, here speaking of either side as the ‘Other’ in a normative sense even though some who self-identify on either side may do so. Our comment is meant solely as a factual observation.

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essentially practical activity of enhancing our capacities as international or EU legal scholars, and improving the outcomes of our research and writing endeavours (including PhD theses). It should come as no surprise to readers then that we have little time for those who use theory to mystify and oversell mediocre ideas, or simply to sound clever. We also noticed that law students in general (there are, of course, exceptions) tend to be less methodologically self-aware, less good at articulating the approach underpinning their projects or proposed projects, than those in other social science disciplines. For individual law PhD students, this can pose problems at viva voce examinations, which often involve questions that are essentially about methodology, such as – why did you choose this project, what is important about it, what kinds of questions were you interested in asking? Reflecting on these kinds of questions requires us to be explicit about the theoretical assumptions we make about the nature and qualities of law in general – and EU and international law to be more specific – that we make when setting out on our projects. Our assumptions, essentially our approaches, underpin the kind of legal research questions that we each think are valid or interesting. They also inform what we do when we are carrying out our research. Many law PhD students seem to lack the vocabulary and confidence to explore these matters – although they have often embarked upon, or even completed, worthwhile and interesting projects. The imperative in the Research Excellence Framework (REF) era for legal scholars to be successful in attracting funding for their research, which often requires applicants to explain the theoretical/methodological underpinnings of their projects to those who are frequently not within their own discipline, is also becoming increasingly pressing. This book therefore also aims to contribute to the intellectual space within which EU and international law scholars reflect on the unique contribution to the academy of legal research methodologies. The book follows the completion of an AHRC-funded research project on Legal Research Methodologies in EU and International Law2 and its two workshops (29– 30 June 2007, University of Nottingham; 27–28 June 2008, University of Sheffield). The research project’s direct and substantive pedagogical aim was to enhance the methodological understanding and capabilities of three groups of scholars working in EU and international law: PhD students, staff at the early stages of their research careers, and more established members of staff who are PhD supervisors. The book seeks to extend that aim to a scholarly community beyond those who were able to participate in the workshops. The book consists of three parts. Three introductory chapters consider what we mean by ‘theory’, ‘methodology’ and ‘approach’ in the context of research projects in EU and international law. These chapters introduce different kinds of research questions or types of projects, in particular, the distinction between expository and evaluative research. We then introduce the main organising device for the book: a list of types of legal research methodologies, or approaches, or   Project ID 06/160/S 1.

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theories, that are used in international or EU legal scholarship, or both. The list is not intended to be exhaustive, and we recognise (and discuss) the limitations of listing or labelling approaches in this way. However, we think that such a list (or one like it) plays a useful heuristic role, and enables us to talk to each other about methodology, and to understand and locate scholarly literature (such as our own work in progress, including PhD theses) in our fields in ways that assist us in the intellectual and practical pursuit of our own projects. Although most of the book considers EU and international law together, we draw out some differences (as we see them) between those two (sub)disciplines, in terms of methodologies.3 We also explain the boundaries of the book: we have not included literature in languages other than English, and we have not included a detailed discussion of comparative law. The second part of the book consists of an introduction to our list of legal research methodologies used in EU and international law. This introduction is designed to be used alongside other reading, and discussion of and reflection on that reading. For each of the methodologies, we have included a reference to two readings, which either exemplify, or explain, the methodology, in the field of either EU or international law. We strongly encourage readers to read the book alongside and at the same time as the readings to which we refer. It will not be easy to understand the approach being discussed without doing this, and it would be easy to gain a superficial understanding which risks being a misunderstanding. Alongside the readings, we have included some questions for readers to consider. These are aimed at assisting readers to ‘get beyond’ reading the piece for substantive understanding (which is what law students learn to do on their undergraduate and postgraduate taught programmes, and is, of course, a valuable skill in itself), and learn to read for methodological understanding. Writing down the answers to the questions and discussing them with someone else may help readers to reach these understandings more quickly. For this reason, we envisage that, while readers may wish to use this book to reflect on the questions it raises, and their own projects (PhD or otherwise) in the context of those questions, as a solitary pursuit, or an exercise in self-assessment, the book will probably work best where it is used to support some sort of collaborative activity. For instance, supervisors may wish to set some of the readings and exercises to be completed and discussed in supervision sessions. Supervisors, like us, may wish to do the exercises themselves, as well as asking their PhD students to complete them, in particular in group based sessions. It was an important part of the project to break down the barriers between ‘them’ (students) and ‘us’ (supervisors) – we are all engaged in scholarly endeavours and can continue to learn from reflection on scholarship in our fields. Groups of students, early career academics or other scholars may wish to get together in workshops or seminars to 3   One area where this has become a matter of current controversy is in relation to UN and EU responses to terrorism, and the interrelationship between international law, EU law and human rights law, see, eg G de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51 Harvard International Law Journal 1.

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discuss the readings. We have included in the appendices a number of exercises and activities that can be used to promote or encourage such discussions. The participants in the project workshops greatly enjoyed carrying out these activities, and felt they learned a great deal from them, despite, in some cases, initial reluctance to engage. Here are some of the things that students said in the feedback: ‘The group exercises were more useful than I expected.’ ‘The workshop . . . supported and encouraged me to reflect on my theoretical approach to my work and to learn from others’ experience.’ ‘Each session was both fun and informative and has given me ideas on how to strengthen and sharpen my research.’ ‘The workshop exceeded my expectations. It has been a highly didactic experience which gave me insights on my own work as well as the work of others.’ ‘The workshop surpassed my expectations. I feel I understand myself and my thesis better.’

This positive view of using the materials in a collaborative and discursive setting, such as a workshop, was also reflected in feedback from academic staff members: ‘I was hoping that this would be a relaxed forum in which students would be given a chance to chat freely about theory – including potentially why they were commonly put off by it – and in which we could all get new ideas about approaches others are using. I think the workshop was great in achieving this – I think it is easy for students to decide they want to be “doctrinal” just by fear of getting lost in theory, and this type of information forum where the idea is not to all claim that we are “theorists”, but to explain if and how we try to use theory, is particularly helpful.’ ‘the project was about making a link between theory and method, and helping us to think about “method in practice” . . . the workshop was very practical, introductory, innovative’. ‘I certainly gained from the workshop – it has helped me to reflect more on my own methodologies/theoretical approaches.’ ‘Most beneficial: helping to (re)think my place on the theoretical spectrum. Great workshop. I wish I’d had such an opportunity as a student.’

Of course we hope that this book will encourage a similar response to the workshops from which it stems. The workshops that provided the basis for this book fed into our understanding that the book would be of assistance to all staff and students interested in improving their work or their doctorates. In fact, we ought to highlight here that we would be very interested to hear from any readers who do use the book, especially collaboratively, in particular in terms of what worked, and what did not work, for their group, and why this was the case.

‘Theory’/‘Methodology’/‘Approach’? 5

II ‘Theory’/‘Methodology’/‘Approach’? This book is about research ‘methodologies’ in EU and international law. But we also speak of ‘theories’ and of ‘approaches’ to these (sub)disciplines. To some extent, we have used the terms ‘theory’, ‘methodology’ and ‘approach’ synonymously. We rejected the use of the word ‘theory’ alone because in our experience many legal scholars, including the majority of PhD students in law, are uncomfortable with expressly identifying themselves as theorists. (This is also true of at least one of the book’s authors!) Part of the aim of the book is to dispel this fear or unease with ‘theory’; to show that the gap between theory and practice/practical relevance to a PhD or other research project is not as fundamental as many make it out to be. Every legal research project begins from a theoretical basis or bases, whether such bases are articulated or not. The theoretical basis of a project will inform how law is conceptualised in the project, which in turn will determine what kinds of research questions are deemed meaningful or useful, what data is examined and how it is analysed (the method). Often these are arrived at unconsciously, usually on the basis of how a subject was first taught to you, and/or what you gravitate towards naturally because it interests you. We believe, however, that it is better to be open about the bases of research and to think about them than to leave them unaddressed and uncritically accepted. By ‘methodology’, we mean something different from, although related to, ‘method’. For us, and we appreciate that others use these terms differently, the method is the way in which a research project is pursued – what you actually do to enhance your knowledge, test your thesis, or answer your research question. ‘Method’ has empirical and sociological connotations – that is, is the method a qualitative or quantitative analysis? Is it comparative? What methods of data collection are used – literature review, documentary analysis, observation, case studies, interviews? For us, ‘methodology’ has theoretical connotations. Moreover, methodology is closely related to what we understand the field of enquiry (that is, international or EU law) to be. Methodology guides our thinking or questioning of, or within, that field or both. To put it very crudely, and to give an example, if we believe law to be the written product of deliberations and negotiations between specific institutions (let us say on the EU side, the European Commission, European Parliament and Council, or on the international side, multilateral treaty negotiations), then the way we research law – our methodology – will involve the analysis of the texts produced through those deliberations and negotiations. It will not be interested in the effects that law has on social life. To give another example, in the international arena, if we believe law to be the morally correct means for organising international relations (let us say with respect to States involved in armed conflicts), then our methodology for researching law in that sense will include analysis of what a ‘morally correct’ way of engaging in such conflicts denotes in this context. And further, it will perhaps include an analysis of how this accepted norm of ‘morally correct’ has or has not come about.

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III  Reading for Methodology Rather than Reading for Substance Thus, ‘theory’ and ‘methodology’ are closely bound up together. They inform the overall ‘approach’ that our legal research projects take. We think we can identify a number of such approaches that are used in international and EU legal research, and have compiled a list of them that forms the content of the second part of the book. Readers are presented with a brief introduction to each approach and then given sample readings which either explain it or demonstrate its use – one in EU law and one in international law. Some of the readings explain the approach in general; others are examples of scholarship in that tradition. Further reading suggestions are included under each heading. As you read, it will probably be of use to ponder, and jot down answers to the following generic questions: What is/are the research question(s) the author asks in this piece? Why should a reader or publisher be interested? What sources/data were used? How were they used? What assumptions does the author make about law and legal research? What type of research questions can this approach answer? What are the benefits and drawbacks of this approach? What would the approach look like, if applied in the substantive area of your PhD? As we said above, these questions (and others more specific to the individual readings) are designed to encourage the practice of thinking methodologically – about the (sub)discipline(s) (of EU and international law) and where a particular piece of scholarship might ‘fit’ within that (sub)discipline. That conscious reflection about where an author is ‘coming from’ assists us to be more self-aware, and consequently, to produce better research in EU or international law.

2 Thinking about Research and Scholarship I  Introduction: Thinking about Legal Scholarship To begin with, we suggest that readers may find it useful to read the piece below by Fisher et al, which reflects on methodology and legal scholarship generally: E Fisher, B Lange, E Scotford, and C Carlarne, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213–50 (published online at jel.oxfordjournals.org). The article by Elizabeth Fisher, Bettina Lange, Eloise Scotford and Cinnamon Carlarne discusses methodological problems which arise in the scholarship of environmental law and the influence of these problems on environmental law scholarship. Although the article makes specific reference to environmental law (UK, European and international)1 in examples of treaties and directives, its comments on scholarship which does not adequately address methodological issues (and its suggestions for how to redress this) are useful for all areas of legal study. Indeed, the authors frequently point out that the problems which they are discussing are in fact general problems of legal scholarship, but which they claim that environmental law suffers from more particularly. Fisher et al describe methodology as amounting to a systematic procedure that a scholar applies as part of an intellectual enterprise, and draw attention to David Feldman’s description of good scholarship as requiring a focus on methodology, critical reflection and communication.2 They note that ‘a commitment to the value of methodology is not a commitment to a particular methodology, but is a commitment to developing methods that are “best suited” to the type of questions asked’.3 This is a key theme which emerges more than once in our suggested readings. Fisher et al then identify five steps which they believe will help environmental (and other) law scholars to address these challenges:

1   E Fisher, B Lange, E Scotford, and C Carlarne, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213–50, 215. 2   D Feldman, ‘The Nature of Legal Scholarship’ (1989) 52 Modern Law Review 498–517, cited in Fisher et al, n 1 above, 216. 3   ibid 227.

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1. reflecting on the relationship between choice of method and research questions asked; 2. mapping the subject; 3. engaging with more general debates over legal methodology; 4. getting to grips with interdisciplinarity; and 5. having a more explicit debate about how to assess the quality of environmental law scholarship. With regard to the relationship between methodology and research questions, their point is that not only should methodologies be appropriate to answer our research questions but ‘our implicit or explicit methodological perspectives also steer us towards particular types of research question’.4 Our choice of methodology will have ‘scholarly consequences’5 and our choice of method should therefore be well thought through and should be made clear. Related to this is the need for scholars of specific branches of law to engage with the general debates about legal methodology.6 We would agree that all scholars can gain from such engagement, and this book is our contribution to assisting those processes.

II  The Relationships Between Research Questions and Methodology We agree with Fisher, Lange, Scotford and Carlarne on the importance of reflecting on the choice of methodology and the interrelationship between that choice and the research questions asked in a project. The research questions that you pursue, the data or information that you bring to bear to answer them, and what you actually do (the method) need to be in a supportive ‘triangular’ relationship with one another. Methods and data must actually support the research questions that are being asked. Often the early stages of a (law) PhD consist in adjusting the research questions so as to be consistent with what turns out to be feasible in terms of methods and data. This adjustment may continue throughout the life of a project. A successful (PhD) project will have clearly articulated research questions, pursued through appropriate methods and using appropriate data. The choice of research questions, through a process of refinement, is an important (ongoing) stage in the realisation of a research project. What about methodology? Is that also simply a matter of choice? Our answer is yes, and no. We think that, for each of us, the choice of theory/methodology/ approach – like the research projects we elect to pursue – is a matter of personal

 ibid 224.  ibid 245. 6  ibid 246. 4 5



The Relationships Between Research Questions and Methodology

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style.7 Our choice of style reflects our professional and personal goals. In that sense, methodology is a matter of choice. But in another sense, it is not. Through working on this project, we have agreed that we absolutely reject the idea that legal scholars may simply ‘choose’ any methodology and ‘apply’ it to their research questions. Rather, we hope that readers following the readings suggested in the book will see (or may already agree) that theory/methodology and the practice of research are intimately bound up together. (If you disagree, we would like to hear from you to discuss this further.) Thus there is no question of simple application of an approach to a question. The questions that a legal scholar is interested in are already based in the theoretical approaches that will help that scholar to answer those questions. One point of the exercises in this book is to help readers to decipher what questions they are asking in their research, to help ascertain which methodology/ies or approach(es) would best help them answer those questions, but also to think further about what questions they are asking, and if they are the ones they want to ask (and research). Another way to approach this activity, which the exercises in this book also support, is to help readers become better at recognising and articulating the methodologies or approaches to which they are naturally drawn. These approaches themselves inform the types of questions that we think are interesting or worthwhile. As one academic participant in our workshops put it: I became aware, over time, that other approaches just ‘felt wrong’. That is why the types of research question that I am interested in tend to fit within constructivist approaches to international legal scholarship.

As readers formulate and refine their research questions, it may help to think about the distinction between expository and evaluative (or small ‘c’ critical) scholarship. Essentially, expository scholarship is answering descriptive questions about the way the (legal) world is. For example, what is the law on migrant patients in the EU? What is the international legal regime applicable to Antarctica? Does international law permit the use of force in anticipatory (or peremptory) self-defence? What is the effect of international law on terrorism? ‘Descriptive’ should not be mistaken for ‘simple’ in this context – the analysis concerned may be highly complex. Evaluative scholarship is in some way providing an assessment of the way the (legal) world is, and, either implicitly or explicitly, subjecting the law to appraisal either from the point of view of coherence with earlier law, other areas of law, or from an external viewpoint, and where shortfalls are identified, suggesting how things might be improved. Is the law on EU citizenship consistent with EU social security legislation? Does EU consumer contract law protect consumers adequately? How can international law act more effectively to prevent shipping disasters from polluting the environment? Or should international law reflect a different balance between trade and the environment? The assessment in 7   K Abbott, ‘International Relations Theory, International Law and the Regime Governing Atrocities in Internal Conflicts’ in S Ratner and A-M Slaughter (eds), The Methods of International Law (Buffalo NY, ASIL/Hein, 2004) 131.

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evaluative scholarship may be by reference to an external standard (external critique) such as equal dignity of all humans, or it may be by reference to a standard set by the law itself (internal or ‘immanent’ critique). The standard of internal critique may be explicitly stated in the relevant law, for example, the aim of EU environmental law is to improve the quality of Europe’s environment, or it may be implicit, such as a standard of consistency between different systems of rules which govern a particular area of life. Of course, a particular research project (especially one of PhD length) may include both expository and evaluative questions, but they are different, and may require different types of methodology.

III  Introducing ‘the List’ The second part of the book is organised around our list of research methodologies used in EU and international legal scholarship. Our list is as follows: The Main Jurisprudential Approaches A Natural Law B Legal Positivism Extensions and Negations I:8 Modern and Critical Approaches C Modern Approaches • Liberalism • Cosmopolitanism • Constitutionalism • ‘New Governance’ • Idealist D Critical Approaches • Marxism • Feminism • Queer Theory • Postcolonial Theory • Critical Theory Extensions and Negations II: ‘Law and’ G Law and International Relations/Political Science • Liberalism • Constructivism 8  This heading is taken from J Penner et al, Introduction to Jurisprudence and Legal Theory: Commentary and Materials (Oxford, Oxford University Press, 2005), who split the textbook into two parts, Part I (The Main Jurisprudential Approaches) and Part II (Extensions and Negations).



Why This List?

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H Law and Economics I Law and Sociology J Law and History K Law and Geography L Law and Literature

IV  Why This List? The first thing to observe is that this list is by no means exhaustive, definitive or uncontroversial. The list was reached after long hours of deliberation, debate and frustration! We have continued to refine it right up to the submission of the manuscript for publication, and in some senses it will always be a ‘work in progress’ as our disciplines themselves develop. We drew on various sources for inspiration. General legal theory/jurisprudence textbooks revealed that there is no accepted way of presenting legal theoretical methods; everyone takes a different approach. To an extent, although we have attempted to provide something of a tour d’horizon, the approaches listed here are, perhaps not surprisingly, influenced by our own research interests and experiences – hence we include, for example, the categories of ‘new governance’, ‘feminism’, ‘critical theory’ (with particular mention of Foucault and law) and ‘law and history’. In the international law context, our task of determining what to include was made easier by the fact that there is something approaching an ‘accepted canon’ of international law theories, methodologies or approaches. This was our starting point. For instance, Steven Ratner and Anne-Marie Slaughter put together a stimulating edited collection9 by asking each contributor to tackle the same topic (the individual accountability for violations of human dignity committed in internal conflict) from the point of view of a different ‘method’ of international law. By ‘method’ they mean ‘the application of a conceptual apparatus or framework – a theory of international law – to the concrete problems faced by the international community’.10 This is what we call a ‘theory’, ‘methodology’ or ‘approach’. Their list (legal positivism; New Haven school; international legal process; critical legal studies; international law and international relations; feminist jurisprudence; Third World approaches to international law; law and economics) is similar to our starting point. However, in the context of EU law, our task was made more challenging (and more fun!) by the fact that there is no such ‘accepted canon’. We discuss this further below, in chapter three. For now, we outline some of the issues that we had to tackle when deliberating this list.   Ratner and Slaughter, n 7 above.   ibid 3.

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V  Discussion of the List A Inclusions in, and Exclusions from, the List Any list has to stop somewhere. What did we leave out? And why? There are approaches to EU and international legal scholarship that we have not included in the list. Readers may notice gaps they consider disappointing. In part, our choices reflect (consciously or otherwise) our own interests and expertise and the approaches that are currently deployed in scholarship in EU and international law. But we recognise that the absence of much literature in an area is not, in itself, a justification for excluding an approach. Indeed, the absence of much work on point leaves a great deal of room for innovative scholarship. However, the practicalities of how many approaches can be covered in one book meant that judgement calls had to be made on inclusions and exclusions, and some can (and will) disagree with where we drew the boundaries. We decided not to include comparative law, partly to keep the project manageable, but also since, in our view, comparative law is a subject in itself and thus has its own theories and methods. We discuss the relationship between this subject and EU and international law further in chapter three. Several of the academic partners to the original project on which this book is based were disappointed about this omission. They pointed out that, in both EU and international law scholarship, there is a tradition of using comparative methods.11 We agree, and we think there is scope for a similar project, based on comparative law, and would encourage its pursuit by those better qualified than us to do so. Finally, we have only included literature in the English language. This was for two main reasons, both in some ways practical. The first is that, as mentioned above, this book is intended to be read alongside the literature referred to below. We cannot anticipate the linguistic skills of everyone who will read this book, and it is our intention that everyone who reads it will be able to engage with the literature to which we refer. The only assumption we can make is that everyone who reads this book can read material in the same language as that in which this book is published. The second reason is that we had to draw lines somewhere around our project. We are also limited by our own skill-sets. It hardly needs saying that if readers are able to engage with non-English language literature, this will enrich their research projects.

B Incommensurability The second challenge we faced when deliberating the list was that of incom­ mensurability. A list implies that the items listed are of a category – legal research 11   See, for instance, K Lenaerts, ‘Interlocking Legal Orders in the EU and Comparative Law’ (2003) International & Comparative Law Quarterly 873–906; M Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009).



Discussion of the List

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methodologies – and that items in that category can be directly compared to and contrasted with one another, for instance, in their success in supporting research projects in EU and international law. However, the different approaches on our list are in some senses incommensurable, in that they are trying to achieve different things. For example, legal positivism cannot be rigidly contrasted in toto with critical approaches because each may be looking for answers to different questions. The ‘application’ of the different approaches to international or EU law has also developed in different ways. Sometimes an abstract pre-existing theory has been used to analyse or critique international or EU law in a ‘top down’ fashion, in that the theory comes before the turn to international or EU law. These approaches may be inspired by specific sources, for instance national constitutional legal theories. Alternatively, approaches may draw on general social science perspectives, for instance, methods such as discourse analysis, which are used in all sorts of fields, not just legal scholarship. At other times, approaches and theories have developed ‘bottom up’. They are grounded in specific substantive questions which researchers have pursued in their (international or EU) legal research projects. The discussions we had in deciding what would and would not be included in the list also informed our realisation that to say that theory is ‘applied’ in anything more than a loose sense risks undermining the premise that there is no distinction between theory and practice. We repeat here that our attraction to particular theories or methodologies informs the very research questions that we find interesting enough to pursue and vice versa. This also explains the incommensurability of approaches. But we think that, rather than decrying the fact that different approaches on our list cannot be directly compared to one another, this is something to be celebrated. International and EU legal scholarship is a large and diverse body of writing, and there is room for all sorts of scholarly pursuits within it. When appraising a piece of work, it is almost always better to ask whether it is a good example of scholarship within a particular intellectual approach, rather than to accept or dismiss it owing to the approach it takes.12 Moreover, the fact that approaches may be incommensurable does not mean that you cannot apply more than one approach in your particular project – so long as, of course, the approaches do not contradict each other and you have used them carefully.

C  The Limitations of Labels Thirdly, in drawing up the list, we faced the vexed question of labelling. For instance, using labels in the way that we have in our list appears to imply that each category listed is discrete from the others. But this is not the case for the research methodologies in EU and international law that we discuss in this book. Readers 12   Admittedly, there are probably limits to this. None of us would feel comfortable in engaging in appraising whether or not a particular piece of scholarship in the Nazi tradition was meritorious within that approach.

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will notice overlaps between the different approaches (for example, idealism may relate to natural law; constitutionalism may relate to law and political science; Marxism overlaps with critical theories, and so on). In real life, legal research projects do not always adopt a pure version of just one theoretical or methodological perspective.13 Many of the avowedly theoretical approaches have arisen at least in part as a response to earlier theoretical approaches, and thus draw to some extent on those other approaches (for example, critical theory draws, inter alia, from Marxism). Others build upon the insights in other theories (whether they admit it or not). The approaches we have identified and classified are thus not hermetically sealed, but fluid and negotiable. Hence, the headings we have used are by no means intended to be determinative, and many individual scholars could equally have been brought under a number of different headings, either because their work spans both areas, or because the labels we have used do not quite capture the way these scholars approach their studies. One label with which we struggled particularly was the heading ‘critical approaches’ as (perhaps even more than in other approaches) there is no neat definition of what falls under these terms or indeed if they are the right terms to use to describe the approach to which we refer! We do not intend the labels we have used to be normative; they are merely a way of grouping people together in a manner which makes introductions such as those we are making manageable. The list is supposed to be a device to help us clarify our thinking, and to enhance our abilities to communicate with one another, not a straitjacket or a reduction of any scholar’s work to being limited a single approach. Moreover, many proponents do not wish to be labelled as belonging to a certain ‘category’ of thinking (again this is true of the authors of this book). Not all of the scholars we have chosen as representative of a theory/method/approach would agree with, or be happy with, the association.14 However, self-identification is not the only way in which people may be categorised, and we have attempted to group international and EU legal scholarship together by reference to shared ideas, approaches and interests. Whilst reading the materials, it may be useful to reflect on what the implications of grouping scholars together under one heading are, and whether there are better ways of doing so. We remain open to suggestion on this. Moreover, as we said, labels give the false impression of clear demarcation between approaches, whereas many writers often use more than one approach as and when it serves their purpose. There is nothing inherently wrong with eclecticism, some theories are better at answering certain types of research questions than others, and we all ask different questions at different times.

13   Although some do, notable examples would be those who would self-identify as, eg, feminist scholars, or critical race theorists, or proponents of the McDougal/Lasswell school of international law scholarship. 14   Eg, although Brian Lepard expressly disavows naturalism in his Customary International Law: A New Theory With Practical Implications (Cambridge, Cambridge University Press, 2010), much of the analysis he employs would, to many others, fall within that tradition.



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While we are on the subject of labels, readers will notice that we have not relied much on the two labels that are often associated with discussions about legal research: doctrinal (or ‘black letter’) legal research and socio-legal research. Readers might want to reflect on how these two different types of legal research – however they understand them – fit with the approaches that we have outlined. Finally, still thinking about labels, readers might want to take issue with the very labels of ‘international law’, ‘EU law’ and indeed ‘national law’. The position that each of these is a distinct field of law, which generates distinct approaches of enquiry, may be contested. An alternative position would be to see international, EU and national law as interlinked legal orders in global multi-level governance systems or as part of one overarching system of law. We will say more about these ideas in the next chapter.

3 Thinking about Research and Scholarship in EU and International Law I  Introduction: Where Does My Project Fit? We suggest that readers begin their reflections on research and scholarship in EU or international law by reading and discussing or thinking about one of the following two pieces, which provide a ‘review’ of international/EU legal scholarship over the past few years:

International D Bederman, ‘Appraising a Century of Scholarship in the American Journal of International Law’ (2006) 100 American Journal of International Law 20–63.

EU J Hunt and J Shaw, ‘Fairy Tale of Luxembourg? Reflections on Law and Legal Scholarship in European Integration’ in A Warleigh-Lack and D Phinnemore (eds), Reflections on European Integration: 50 Years of the Treaty of Rome (Basingstoke, Palgrave, 2009). David Bederman charts both the substantive content of the American Journal of International Law over 100 years, and also what he calls the editorial style, as expressed by ‘hero-writers’1 who set the tone for the journal. So, for instance, the early issues of the journal embodied an almost evangelical or ‘messianic’2 belief in the possibilities for international law to solve global problems, alongside an essentialist approach to the nature of international law itself. This was abruptly interrupted by the 1914–18 war, following which a more intense focus on international organisations (in particular, but not exclusively, the League of Nations) characterised the journal’s content, becoming ever bleaker as the 1939–45 war approached.3 1   D Bederman, ‘Appraising a Century of Scholarship in the American Journal of International Law’ (2006) 100 American Journal of International Law 20–63, 22 and 57. 2   ibid 59. 3   On this, and the extent to which it reflected American views on international law at the time, see M Janis, The American Approach to International Law 1776–1939 (Oxford, Oxford University Press, 2010) chs 9–11.



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The Cold War period was characterised by scholarship seeking new roles for international lawyers, and new approaches to international legal scholarship. In recent times, a dominant focus on the United Nations has characterised the journal. The approach of the journal now, according to Bederman, is to follow developments and ‘place them in a sensible context that strikes the right balance between foolish utopianism and grim realism’.4 In Bederman’s view, ‘the most surprising intellectual turn of the AJIL’s past decade has been the self-conscious renewal of interest in the methods and techniques of international legal scholarship itself’:5 a research agenda to which this book seeks to contribute. Jo Hunt and Jo Shaw begin with the observation that much early legal scholarship on the EU is essentially based on assumptions that European integration through law, seen through a lens of constitutionalism, is an exercise in ‘rendering the EU more state-like’, and that these (often unspoken) assumptions persist in EU legal scholarship today. However, these assumptions have also been questioned, for at least a decade, by the legal academic community and those outside of it. Moreover, whatever (some) political scientists may think, (EU) legal scholarship is not concerned exclusively with doctrinal exposition, but with ‘how and why the law may be more than the functional handmaiden of political actors’.6 Hunt and Shaw give several examples of scholarship concerned with those types of questions, some of which are picked up in the later chapters of this book. Hunt and Shaw also track a change in EU legal scholarship in terms of its focus on courts, in particular pieces that cast the European Court of Justice in a ‘heroic’ role, noting that a range of more recent EU scholarship considers institutions other than courts, and questions the narrative of judicial heroism. They note that the field of EU scholarship is methodologically speaking ‘wide open’: approaches based on the EU as an international organisation, as comparable to a domestic legal system, as a multi-level governance regime, or, as Francis Snyder suggested in 1990, ‘interdisciplinary, contextual or critical approaches’.7 These latter approaches have been well-served by the European Law Journal – an explicitly interdisciplinary and ‘law-in-context’ journal on EU law. Hunt and Shaw conclude that, 50 years after its birth, EU legal scholarship now embraces a wide range of methodological approaches, which may be deployed in endless combinations to support research projects in EU law. The challenge now is to engage more explicitly with theory and methodology – a process which Hunt and Shaw have kindly said that will be supported by the project that preceded this book. Both the Bederman and Hunt and Shaw articles are written by lawyers with considerable interest in theory, and, importantly, they concentrate on the breadth of international or EU legal scholarship as a whole. All projects that we undertake   Bederman, n 1 above, 62.   ibid 48. 6   J Hunt and J Shaw, ‘Fairy Tale of Luxembourg? Reflections on Law and Legal Scholarship in European Integration’ in A Warleigh-Lack and D Phinnemore (eds), Reflections on European Integration: 50 Years of the Treaty of Rome (Basingstoke, Palgrave, 2009) 4. 7  F Snyder, New Directions in European Community Law (London, Weidenfeld and Nicholson, 1990). 4 5

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are (or ought to be) contributions to a debate, which build upon what has gone before (even where a project rejects the canon). It is worth bearing this in mind when designing and writing research proposals. Academic studies are part of an ongoing conversation, that occurs in some ways within the mores of the day, even though they can (and the best examples do) transcend the concerns of the time in which they were conceived. Both of the above pieces encourage reflection on the development of scholarship (one in international law and the other in EU law) and, before turning to the detail of the rest of the book, readers might find it useful to think more generally, and discuss with their supervisors (where they are PhD students, or colleagues where they are not) about where their project stands in relation to the more general trends in the literature on point. At the beginning of a research project, especially a PhD, it is useful to reflect on the place of that envisaged project within the existing literature in the field (of EU and inter­ national law). Some supervisors may find it helpful to encourage their students to write focused literature reviews that assist this reflective process. In addition to raising questions related to ‘where does this project fit within (EU or international) legal scholarship?’, this chapter builds on the previous chapter, about legal research methodologies in general, by raising several further areas for reflection and discussion on legal research methodologies in EU and international law in particular. We begin with some observations on the development of explicitly theoretical scholarship in international and EU law, contrasting the two (sub)disciplines in this respect. We then turn to a discussion of the terms ‘international law’ and ‘EU law’ (and also indeed ‘national law’) themselves. Some readers – perhaps those impatient to get on and find out the answers to the research questions that drive their projects and research ambitions – may consider these questions to be so impractical as to be irrelevant, or, at best, to constitute metaphorical navel gazing. We would repeat what we said in chapters one and two: reflecting on the very object of study – why do we regard it as worthy of our attention?; what is international or EU law, within which our projects are situated?; what are the consequences (for the questions we ask, and thus the answers we are likely to find) of adopting a particular approach to that question?; and so on – will significantly enhance the quality of the research we produce. We believe that these kinds of reflexive practices will enrich scholarship in EU and international law: this is one of the main reasons for this book.

II  Theorising in International and EU Law As we observed in chapter two above, our task in drawing up the list of methodologies for this book was assisted by the fact that there is something that might be thought to approach an ‘accepted canon’ of theories in international law. Even so, there are considerable disagreements relating to what is, what is not, and what ought to be part of this canon. For example, although the Ratner and Slaughter



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collection discussed in chapter two derived largely from a symposium on theory and method published in the American Journal of International Law in 1999,8 the initial symposium did not include any Third World perspectives on international law. This omission was decried in correspondence with the American Journal of International Law 9 and, probably as a result of that correspondence, a piece on Third World approaches was included in the book.10 As will be seen, furthermore, the approaches used in that work do not exhaust the ways of looking at inter­ national (or EU) law – there is nothing, for example on law and literature, or avowedly Foucauldian perspectives (which we discuss under the ‘Critical Theory’ section in chapter five) in either the symposium or book. This may reflect the fact that there was little work done in the area at the time, or that the research question being asked by the editors (of the criminal liability of individuals for war crimes in non-international armed conflicts) was not perceived, rightly or wrongly (probably the latter), as requiring input from such approaches. This latter issue provides another example showing that the research question asked can inter­ relate with (or be inspired by) the method or approach(es) adopted. That said, as mentioned above, our task in relation to international law was perhaps in some ways more simple than when we turned our attention to EU law; there is not even the level of acknowledgement of an ‘accepted canon’ of theories in EU law as may exist in international law. Neil Walker, as recently as 2005,11 alerts us to the ‘elusive novelty of theorising’ in the EU, drawing attention to the lack of ‘theoretical self-consciousness’ in EU legal scholarship. Walker refers to ‘higher levels of theorising’, for he recognises that in response to the novelty of the EU system, there did develop ‘a practice and culture of theoretical reflection on European Law’ (referring to the work of Francis Snyder,12 Jo Shaw and Gillian More’s The New Legal Dynamics of European Union,13 and work published in the European Law Journal and the Oxford Journal of Legal Studies (Hunt and Shaw draw attention to such literature in the piece mentioned above)). What Walker highlights is a ‘problem of translation’ from the state level and the international level to the EU, meaning that discourses remain informed by the ‘institutional distinctiveness’ of the EU. We have observed that where EU scholarship does talk explicitly of theory or methodology, much of the scholarship concerned is sociolegal research, involving empirical data such as information from interviews or observations of relevant actors, and the discussion of theory tends to be of the methodological implications of the study concerned. By contrast, where inter­ national law scholarship talks of theory, this is often about philosophical concepts, or capital T, ‘high Theory’. What theoretical tools then, Walker asks, are better equipped for the task of ‘theorising’ EU law? His response seems to be the   (1999) 93 American Journal of International Law 291ff.   (2000) 94 American Journal of International Law 99. 10   S Ratner and A Slaughter, The Methods of International Law (Buffalo NY, ASIL/Hein, 2004). 11   N Walker, ‘Legal Theory and the European Union: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 581–601. 12   eg, F Snyder, ‘New Directions in European Community Law’ (London, Butterworths, 1990). 13   Oxford, Clarendon Press, 1995. 8 9

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discourse of constitutionalism. We encourage readers to explore this type of question and decide, in the context of a particular project, which ‘theoretical tools’ best suit the analysis. So Walker suggests that the lack of self-consciousness of theory in EU legal scholarship is due to the focus on the ‘claim to specialness’ of the EU as a polity. It is also perhaps partly because there is no accepted answer to the question: ‘of what is EU law an instance?’ If EU law is a species of international law, then the international law canon will serve. However, some (perhaps many, including the European Court of Justice (ECJ) in the case of Kadi v Commission)14 see EU law as if it were a domestic legal system – thus, according to such people and bodies, EU and international law are ‘separate and parallel regimes’ (with the ECJ claiming ‘the internal and external autonomy and separateness of the EC’s legal order from the international domain’).15 The implications of this for theory/methodology would therefore include that we might need to begin from an ‘accepted canon’ of theories/methodologies for domestic legal research. Of course, such a list would have overlaps with the international law list (it might, for instance, include positivism, natural law, feminist theory, and the ‘law and’ interdisciplinary approaches). But it might not be exactly congruent with it. Walker wonders whether EU law requires its own new tools of analysis and new forms of theory building, and we agree that this is a question worth exploring. Thus we have included the perhaps contentious headings of ‘Constitutionalism’ and ‘New Governance’ in our list, since constitutionalism and new governance represent such ‘new tools of analysis’ within the EU, and constitutionalism is now a developing discourse in international law.16 If EU law is to be approached with an understanding of theory and methodology, it must be questioned whether the wheel needs to be reinvented, and to describe the EU as a sui generis system does not answer the question of in what way it resembles other systems, or amounts to a theoretical shrug of the shoulders when it comes to dealing with insights from other areas of study. Be that as it may, what has happened in EU scholarship is that academic lawyers have been significantly influenced by existing theories of law (mainly positivism) – although at the same time (as Walker notes) not consciously so. Indeed the ‘often invisible touch of stateness’17 has resulted in a persistent tendency to conceptualise the EU’s legal order as if it were that of a state, and to conduct legal analysis on that basis as, arguably, occurred in Kadi. Much theorising in the interdisciplinary field of EU studies has been about theories of EU integration (for example, intergovernmentalism, functionalism,   Case C-402/05 P, [2008] ECR I-6351.   See eg G de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51 Harvard International Law Journal 1. 16   See, eg, J Dunoff and J Trachtman (eds), Ruling the World: Constitutionalism, International Law and Global Governance (Cambridge, Cambridge University Press, 2009) and J Klabbers, A Peters and G Ulfstein (eds), The Constitutionalization of International Law (Oxford, Oxford University Press, 2009). 17   J Shaw and A Wiener, ‘The Paradox of the European Polity’ in M Green Cowles and M Smith (eds), State of the European Union 5: Risks, Reform, Resistance and Revival (Oxford, Oxford University Press, 2001). 14 15



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neo-functionalism, institutionalism, constructivism). These approaches attempt to provide explanatory accounts of changes in the social world (the integration of the economies and policies of the Member States of the EU), and to test these against empirical evidence. They include important work on theories of legal integration.18 Legal scholarship on EU integration has focused on both the integration of law (legal integration) and integration through law (the roles of law in the processes of political integration).19 The vast majority of legal scholars writing on EU integration assume that law plays a significant role in the integration process.20 But the research questions of legal scholarship tend to be different to those of the social science scholarship of EU studies. We take up the issue of the relationship between theories of European integration and the focus of our project – theories of EU (and international) law – in the section on ‘Law and international relations/ political science’ in chapter six.

III  Labels in International and EU Legal Scholarship In addition to the observations we made in chapter two about labels used to ident­ ify legal research methodologies in general, readers are invited to consider some wider points about labels used to define, or the use of particular concepts in, EU and international legal scholarship. These include concepts of sovereignty, the state, and what counts as ‘progress’ in international or EU law. They also include the labels ‘international law’, ‘EU law’ and indeed, ‘national law’ themselves.

A  ‘International Law’, ‘EU Law’ and ‘National Law’ The very title of this book – Research Methodologies in EU and International Law – presupposes that ‘EU law’ and ‘international law’ form entities capable and worthy of study. But, as we observed in the previous chapter, the labels ‘EU’ and ‘international law’ (and indeed the label ‘national law’) may themselves be problematic. We discuss below some of the literature which explores the problems with these labels. On the question of labelling of different ‘levels’ of law or different ‘legal systems’, Neil Walker believes that the proliferation of transnational legal regulation makes it difficult to compartmentalise different legal orders quantitatively.21 In addition, qualitatively, the underlying basic grid or meta-order through which we make sense 18   See, eg, K Armstrong, ‘Legal Integration: Theorising the Legal Dimension of European Integration’ (1998) 36 Journal of Common Market Studies 155–87. 19   See, canonically, M Cappelletti et al, Integration Through Law (Berlin, Walter de Gruyter, 1986). 20   For a discussion of why, and the implications, see G de Búrca, ‘Rethinking law in neofunctionalist theory’ (2005) 12 Journal of European Public Policy 310–26. 21   N Walker, ‘Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders’ (2008) 6(3&4) I.CON 373–96.

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of connections and overlaps is no longer well understood in traditional Westphalian terms (as the accommodation of mutually exclusive sovereign states).22 There is thus an emerging ‘disorder of orders’ with horizontal and vertical connections between legal systems and other legal or non-legal normative systems. This is not a particularly new idea – Philip Jessup, in his Storrs lectures of 1956,23 developed the notion of transnational law as better suited to the subtle and complex world of international law, and its relationship with national law, which he felt could not easily be divided into ‘public’ and ‘private’ realms since so many issues crossed these traditional boundaries (for example, war crimes or maritime law) and which involved the necessary interplay of international and domestic law.24 In the context of EU law, Walker identifies five different levels of interaction, the strongest being ‘institutional incorporation’, where the host normative order makes general provision for the normative decisions of an external agency to be incorporated and to be treated as authoritative within the host normative order,25 such as Member States’ relationship with the EU. The second level is ‘system recognition’, where there is no general institutional mechanism, but there is recognition of another system formalised by the host on a systemic level, understood as intrinsic to the self-definition of the host system, such as incorporation of jus cogens norms.26 There can also be ‘intersystem recognition’ involving non-state legal entities, such as the recognition taking place between the EU and the World Trade Organization (WTO).27 The third level is that of ‘normative coordination’, such as that investigated by those researching ‘global administrative law’,28 and voluntary codes of conduct – this is not as strong as compulsory institutional incorporation, but is more than bilateral connections between national legal orders.29 The fourth level, ‘environmental overlap’, is a different kind of interaction and does not occur directly between legal (or non-legal) systems, but is the overlap in the social and economic environments impacted by different legal orders – Walker’s example is of the MOX Plant dispute, which involved the EU organs, as well as the international legal order, the latter on the basis of the United Nations Convention on the Law of the Sea (UNCLOS), and the Convention for the Protection of the Marine Environment of the North East Atlantic (and the Commission created to oversee that convention). Finally, Walker points out the ‘sympathetic consideration’ given to ‘system external’ sources because of an affinity for their ideas. In the future,   ibid 374.   P Jessup, Transnational Law (New Haven, CT, Yale, Yale University Press, 1956). 24   See O Schachter, ‘Philip Jessup’s Life and Ideas’ (1986) 80 American Journal of International Law 878–95, 894. 25   Walker, n 21 above, 373. 26   ibid 379. 27   ibid 381. 28   On Benedict Kingsbury’s work on global administrative law, see N Krisch and B Kingsbury, ‘Global Governance and Global Administrative Law in the International Legal Order’ (2006) 17 European Journal of International Law 1–13; B Kingsbury and L Casini, ‘Global Administrative Law Dimensions of International Organizations Law’ (2009) 63 International Organizations Law Review 319–58. 29   Walker, n 21 above, 382. 22 23



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Walker believes, we are unlikely to have a particular meta-order established – instead, competing models will learn to accommodate each other, by abandoning the ‘strong’ interpretation of their model and by adopting the ‘weaker’ interpretation which accepts links with other ideas.30 Readers may find it useful to examine Walker’s different levels in greater detail, to see if their research projects incorporate any of these, especially if looking at judgments from courts which might be operating at one of these levels. We have set out below some readings which seem to view the categories of international, national and EU law as separate, albeit sometimes closely related. Readers are invited to consider the extent to which they agree, by asking themselves: is my research based on an assumption about the degree of connection or separation between national, EU and international law? These issues are discussed in M Liˇcková, ‘European Exceptionalism in International Law’ (2008) 19 European Journal of International Law 463–90. Magdalena Liˇcková believes that the expanding legislative activity of EU institutions incidentally affects Member States’ autonomous international law commitments with third party states, and assesses how this has been dealt with in the past – usually by bilateral agreements between the Member State and the third state. The article also assesses the likelihood of these ‘clashes’ between EU and international law to continue and increase, and considers how they can best be dealt with. The very use of the term ‘clash’ implies separation of the different legal systems at issue. However, although this article involves analysis of the national, international and EU ‘levels’, in relation to the EU-Member State relationship, it assumes a high degree of institutional incorporation (Walker’s first level), and thus connectedness between national and EU legal systems. There is also a degree of intersystem recognition (Walker’s second level), where the third state understands the Member State’s need to comply with EU law. Depending on the subject area of the particular obligation between the Member State and the third state, it is possible that there will be a degree of environmental overlap (Walker’s fourth level) in the potentially different regimes governing the particular issue. The question of how the relevant levels of enquiry and areas of scholarship ought to be dealt with is raised by a case note co-authored by international and EU lawyers: P Cardwell, D French and N White, ‘Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission (C-402/05 and C-415/05) Case Comment’.31 This piece discusses the consequences of the ECJ’s decision in Kadi for the relationship between EU and international law. Paul Cardwell, Duncan French and Nigel White note that the ECJ has three key understandings of the EU legal system which influence its relationship to international law: (i) the autonomy of the EU legal system; (ii) the constitutionality of the EU legal system; and (iii) the centrality of fundamental rights to the operation of that legal system. In this particular case, the authors explain why the two legal systems are not, as it first   ibid 386.   (2009) 58 International & Comparative Law Quarterly 229–40.

30 31

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might seem, in direct conflict as a result of this decision. The relationship between EU and international law contains some elements of institutional incorporation, in that the EU agrees to obey international law, and Article 103 of the UN Charter assumes the supremacy of states’ Charter obligations over their other international law obligations. However, as this article demonstrates, the relationship is more complex than this – the EU appears to consider itself as an autonomous system, in which case, the recognition of UN Security Council proceedings takes on the character of intersystem recognition between two non-state legal entities. This is an issue also dealt with in N White, ‘The Ties That Bind – the EU, the UN and international law’.32 This article looks at the activities of the UN and EU in the field of peace and security, and in doing so attempts to understand the relationship between the UN and EU and their respective rights and duties in inter­ national law, in order to ‘enhance the legitimacy and arguably the effectiveness of the two organisations’.33 Whilst recognising the importance and relevance of the body of EU law, the article also considers the EU as a regional arrangement within Chapter VIII of the UN Charter, which would situate the EU and its activities within the UN Charter framework rather than seeing the EU as an entirely separate system. This way of situating the EU sees the relationship rather more as a case of system recognition (although it should be clear that White does not believe this to be the ‘true’ nature of the EU-UN relationship).

READING

International M Milanovi´c, and T Papi´c, ‘As Bad as it Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 ICLQ 267–96. EU E Benvenisti and G Downs, ‘National Courts, Domestic Democracy and the Evolution of International Law’ (2009) 20 European Journal of International Law 59–72. Marko Milanovi´c and Tatjana Papi´c34 argue that the admissibility decision of the European Court of Human Rights, which avoided the question of the KFOR  (2006) XXXVII Netherlands Yearbook of International Law 57–108.   N White, ‘The Ties That Bind – the EU, the UN and international law’ (2006) XXXVII Netherlands Yearbook of International Law 57–108, 58. 34   M Milanoviˇc and T Papiˇc, ‘As Bad as it Gets: The European Court of Human Rights’ Behrami and Saramati Decision and General International Law’ (2009) 58 International & Comparative Law Quarterly 267–96. 32 33



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contributing states’ control of Kosovo territory for the purpose of the application of the European Convention on Human Rights (ECHR) to people within their control, is ‘unsatisfactory as a matter of law and as a matter of policy’,35 with its result that ‘the actions of armed forces of states acting pursuant to UN Security Council authorisations are attributable not to the states themselves, but to the UN’.36 Milanovi´c and Papi´c attribute this to the Court’s reluctance to decide on questions of norm conflict37 – in this case between the Security Council’s authorisation of certain activities of UNMIK/KFOR with the individual states’ obligations under human rights law. As such, it is easy to see this as a case of normative coordination – although Walker appears to envisage such coordination more as a series of ‘horizontal’ relationships with different states agreeing, for example, to sign up to codes of conduct, rather than a court’s attempting to navigate (coordinate) between potential clashes of norms. The conflict could be seen as environmental overlap between the EU human rights regime and the UN’s regime governing international peace and security. The article goes on to compare Behrami with the UK House of Lords case Al-Jeddah, which demonstrates similar issues at the national rather than EU level. According to Eyal Benvenisti and George Downs, ‘national courts are gradually abandoning their traditional policy of deference to the executive branches in the field of foreign policy, and beginning more aggressively to engage in the interpretation and application of international law’.38 They attribute this phenomenon to the ‘increasing permeability of the domestic legal system to external regulatory efforts’.39 This article is an interesting exploration of the role of the national or domestic legal system in international law. In another article,40 Benvenisti asserts that the reason for an increased reference to international law is to ‘expand the space for domestic deliberation’ as a ‘reaction to the forces of globalisation, which are placing increasing pressure on the different domestic branches of government to conform to global standards’.41 The degree and level of connection between national and international law depends somewhat on the conclusions that national courts are coming to – it could be at the system recognition level, of unilateral recognition by the national court of international law, or it could be sympathetic consideration by the court of a system-external source (whether one of international law or otherwise). It ought to be noted, however, that domestic courts do not always feel comfortable applying international law, and indeed, it can (as in the US) be a matter of considerable political controversy. Also, as Benvenisti showed in an earlier article, some courts can have considerable   ibid 267.  ibid. 37   ibid 293. 38  E Benvenisti and G Downs, ‘National Courts, Domestic Democracy and the Evolution of International Law’ (2009) 20 European Journal of International Law 59–72, 59. 39   ibid 60. 40   E Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241–74. 41   ibid 242. 35 36

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‘misgivings’ about applying international law, and give it a national twist when interpreting it.42

B  The State, and its Sovereignty Thinking further about the possible relationships between states and EU or international law, the different methodologies or approaches in our list have varying perspectives on the concepts of the state and sovereignty, and the extent to which those concepts are relevant at all to scholarship in EU and international law. For instance, historically speaking, legal positivism (see chapter four) is associated with the rise of statehood, as opposed to the power of the Church of Rome. Within such approaches, the Treaty of Westphalia of 1648 is often taken as signifying the beginning of the modern international legal system of sovereign states. In contrast, sovereignty (at least in this sense – which is a controversial one, and one with which many international lawyers would disagree)43 might be said to be an almost meaningless concept for, say, governance approaches and some critical approaches (see chapter five). For instance, governance approaches imply taking a perspective from outside the state; considering not simply the law-making acts of sovereign national parliaments in hierarchical relationships with executives, but also acts taken within networked structures of public and private actors; and diminishing the importance of distinctions between formal law and less formal legal acts (‘soft law’). Some critical perspectives, for instance Foucauldian, consider the ‘state’ an irrelevant entity because the focus of the analysis is on the processes of government(ality) that are taking place, and on the institutions and subjects that are involved in these processes rather than conventional understandings of power, states and sovereignty. The different methodologies also have varying perspectives on the relation of both sovereignty and the state to European or international regulation or organisations. For instance, interdisciplinary approaches may have quite different conceptions of the concept of sovereignty to the standard legal positivist conception. In addition, relationships between sovereignty and (international or EU) law may be seen as, for instance, oppositional in that sovereignty, in the sense of realpolitik, threatens the rule of (international or EU) law; ambivalent in that, for instance, an excess of sovereignty can lead to international crimes (as in the Holocaust), but equally so can a lack of sovereign authority (as in Somalia or Sierra Leone);44 or even positively malevolent, as in Ian Ward’s observation that ‘[t]he overweening nation-state all too readily begat the horrors of nationalism. The jurisprudence of sovereignty, in turn, all too easily lent a spurious legitimacy to these horrors’.45 42   E Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’ (1993) 4 European Journal of International Law 159–83. 43  See R Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2006) 16 European Journal of International Law (2006) 979–1000. 44  ibid. 45   I Ward, Justice, Humanity and the New World Order (Dartmouth, Ashgate, 2003).



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While reading, as well as considering the questions we have already suggested, it may be worth thinking about how the various scholars see the appropriate level of regulation of affairs, and whether they see sovereignty as a positive, negative, or even irrelevant force in international or EU law, and the role that non-state actors do, can, or should have with regard to the creation of both binding and soft law.

C  ‘Progress’ in EU and International Legal Scholarship While we are thinking about positive or negative assumptions, it is worth noting that many of the approaches on our list implicitly or explicitly use the notion of ‘progress’ (implying that using international or EU law constitutes development towards a ‘better way’ of doing things). There can also be a sense of an assumption of a positive or beneficial process of development of EU or international law themselves without thoughtful (or express) reflection on the desirability of the underling aims that the developments are intended to bring about. Progress, contrary to popular academic belief, is a neutral verb: diseases progress, as does our understanding of the best use of medicines. This is a matter of both general and particular importance, because legal scholars often assume that more law is better. Readers might wish to challenge these assumptions. ‘New’ might mean ‘different, but worse’. ‘More’ might mean ‘not really any better’. What is ‘progress’, or indeed, a ‘better way’ of doing things? Of course, some research projects may not be interested in the question of ‘what next’ or how to make a system ‘better’, but how we got to where we are, for instance. Also, a sense of the history or ‘genealogy’ of a discipline may help with scholarship. For instance, it may be that the relative youth of EU law as a discipline has coloured EU scholarship, perhaps because of a perception that it needs ‘protection’ as a discipline.46 International law is not universally accepted as a discipline: in the US it is often taught as an adjunct of ‘American foreign relations law’ and some national law scholars remain dubious of its separate disciplinary existence.47 Owing to this, and the insecurity John Austin engendered in the international legal profession,48 many international law scholars seem to adopt a defensive approach to their subject, whether they ought to or not.49

46   eg, Lord Slynn of Hadley, in the Preface to D O’Keeffe and P Twomey, Legal Issues of the Maastricht Treaty (Chichester, Wiley/Chancery, 1994), writes that the contributors to the volume are ‘lawyers who are wholly in favour of the aims of the Community and of developing integration (“union”)’. Although many EU law scholars would recognise themselves in this description, a significant number, including at least some of the contributors to Legal Issues of the Maastricht Treaty, would refute it. 47  J Bolton, ‘Is There Really “Law” in International Affairs?’ (2000) 10 Transnational Law and Contemporary Problems 1. 48   For an alternative history see D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion?’ (1999) 17 Quinnipac Law Review 99–136. See 111–12 for a discussion of Austin. 49   On which see G Simpson, ‘On the Magic Mountain: Teaching Public International Law’ (1999) 10 European Journal of International Law 70–92.

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IV  Relationships with Comparative Law and Comparative Legal Methods As we said in the previous chapter, we have not included comparative law as ‘a methodology’ within our list in this book. In our view, comparative law is both a method50 (‘an intellectual activity with law as its object and comparison as its process’)51 and a subject in its own right, with its own methodologies. Comparative law research is often carried out simply to better understand a particular area of law or a legal system. This understanding can then be used to assess a law or legal system – its aims, goals, substance or efficacy. Comparative law research is also undertaken to try to identify common themes across different legal systems – with the intention of aiding harmonisation of laws or other law reform, or simply to test whether a particular idea about law is true across different systems, and as such, to determine whether a law reflects a consistent manner of dealing with behaviour across states, or represents a local idiosyncrasy. Comparative law research can be undertaken in order to group or divide different types of legal system (such as common or civil law, or monist or dualist systems).52 Dedicated comparative law textbooks contain chapters on different areas of law (such as family or administrative law), as well as more theoretically-oriented work on methods and purposes of comparative law.53 We do not attempt to replicate such work here. However, we do have a few points that readers may wish to consider about the comparative legal method in the context of scholarship on EU and international law. At its most basic, comparative law compares different legal systems or specific laws. Although comparative law is most often associated with the comparison of different national legal systems, a comparative method can also be used to analyse (aspects of) EU and international law. This can be through comparison either with one another, or with national systems. Scholars working in EU or international law may therefore envisage a comparative element to their research projects. Comparative law textbooks often point out the difficulty of comparing ‘like with like’ when it comes to what laws or legal systems are intended for comparison. This problem may be even more apparent at the European and international levels, with their array of different international organisations and bodies of law, which are so varied in their composition, powers and scope, compared to national legislation and case law. There is also the issue of what linguists call ‘false friends’; terms that are common in more than one discipline (or language), but which do not mean the same thing.54 Readers whose projects contain a comparative compo  P de Cruz, Comparative Law in a Changing World (London, Routledge, 1999) 1.   K Zweigert and H Kötz, An Introduction to Comparative Law (Oxford, Clarendon Press, 1987) 2. 52   Some of these aims are discussed E Orucu and D Nelken, Comparative Law: A Handbook (Oxford, Hart Publishing, 2007) 53–56. 53   An excellent example is Orucu and Nelken, ibid. 54  One example within international law is ‘proportionality,’ which means different things in humanitarian law and human rights law, see, eg, H Krieger, ‘A Conflict of Norms: The Relationship 50 51



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nent are invited to consider these issues. Comparisons between legal systems are not without value, but it is important to deal explicitly with potential problems of research which cannot compare ‘like with like’ – particularly if the intention of a project is to suggest reform of one area based on the other. For example, could reform be limited by the institutional arrangement under consideration? For instance, is the EU or WTO a useful model on which to base UN reform? The reading below for EU law comments on these difficulties, and as such it is worth all readers with a comparative element in their project taking the time to read.

READING

International R Murray, ‘A Comparison Between the African and European Courts of Human Rights’ (2002) 2 African Human Rights Law Journal 195–222 EU S Besson, ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’ (2008) 8 Human Rights Law Review 647–82 Rachel Murray’s article, as the title suggests, takes a comparative approach to the African and European Courts of Human Rights (ACtHR and ECtHR respectively), with the author immediately ‘wary of giving the impression that the European model is the one that should be followed,’55 but suggesting that the longer history of the ECtHR means that its practice (both successes and problems) can be instructive for the ACtHR. This is particularly so, Murray claims, because the Protocol establishing the ACtHR is not clear on what is meant by the African Commission’s role in enhancing efficiency and complementing and reinforcing the Court. The author draws on the experiences of the European Commission and Court’s relationship in areas such as who can bring a case, which body will hear particular cases and the role played by the Commission once a case is before the Court. A particular lesson which the author draws from the European experience is the need to ensure enforcement of rights at the national level rather than relying on the regional body, which will quickly become swamped with cases if national enforcement is not available56 and the issue of how much leeway the ACtHR should give to states, noting criticisms that, in the leeway offered to states in implementing human rights protection at national level, the ECtHR has allowed unequal human between Humanitarian Law and Human Rights Law in the ICRC Customary Study’ (2006) 11 Journal of Conflict and Security Law 265, 281. 55   R Murray, ‘A Comparison Between the African and European Courts of Human Rights’ (2002) 2 African Human Rights Law Journal 195–222, 195. 56   ibid 210.

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rights protection across different states. In reaching these conclusions, Murray is assuming that the two systems are essentially comparable for the purposes of her analysis, even though she is sensitive to charges of Euro-centricity and claims that ‘what works’ in Europe may not work in African contexts, because of different understandings of the roles of courts, governments, and even human rights. This is an issue that requires further discussion, in that any comparative work needs to show the extent to which comparisons are of like with like. Samantha Besson’s article compares the gender discrimination provisions of the ECHR and EU primary and secondary legislation. In doing so, Besson discusses potential methodological issues which arise in comparative legal studies at the EU level. First, she notes the ‘difficult questions of legitimacy and sovereignty comparative law raises’. 57 Assumptions of comparability of different national constitutional systems, which might lead to calls for reform of one system in the light of another, could be said to undermine the very legitimacy of the constitutional system of a sovereign state in which reforms are to be made. Second, the wide array of different regimes in public law (compared to private law) makes comparison difficult. Third, the extra ‘level’ of the importance of national law in considering the implementation of European obligations, especially when one European regime at issue (EU law) is an autonomous legal order, supreme and directly effective; whereas the other (ECHR law) follows general international law norms on its ‘validity, primacy and effect’ in national systems.58 Finally, Besson also points out the difficulty in her research of comparing a supranational organisation of broad scope with an intergovernmental legal structure focused more narrowly on human rights.59 Besson then goes on to compare both systems’ source and the role of the principle of non-discrimination on grounds of gender, as well as the scope and substance of the provisions and procedural constitutive elements of the law in both systems. The article outlines when conflicts may occur between the two systems60 and notes that the ECJ and ECtHR may interpret the right to non-discrimination differently because of ‘the discrepancy between the two regimes . . . both in their fundamental role and aims and in their judicial interpretation’.61 The article concludes with proposals for reform, going beyond the current judicial borrowings between systems, suggesting a more thorough reorganisation of the two regimes to ensure a more systematic and complementary interpretation of the right.62 This would prevent individuals and national courts receiving contradictory judgments and would clarify how both European courts should take into account each other’s law. The conclusion implies that it is possible to overcome the methodological difficulties noted above, provided that borrowings and complementary interpretations are sensitive to the differences between the two systems. 57   S Besson, ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’ (2008) 8 Human Rights Law Review 647–82, 650. 58   ibid 651. 59  ibid. 60   ibid 648. 61  ibid 649. 62  ibid 676–77.



Developing ‘Critical Distance’

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V  Developing ‘Critical Distance’ To conclude this chapter, we return to the idea of reflection on research methodologies as an important part of the development of (EU and international) law as a discipline. As we said at the beginning of this chapter, each author is contributing their own ideas and opinions to an existing body of thought and literature with every piece of work they publish – as readers will be doing during the course of (and after) their PhD or other research projects. However eminent an author may seem to a scholar at the beginning of his or her career, what each author is saying is not to be taken as the pure, objective truth. As Hilary Charlesworth points out in her paper ‘Feminist Methods in International Law’,63 no single author can be truly representative of a particular field of research or a particular methodological approach, and their particular point of view will be influenced by their own individual identity, including class, race, nationality and, of course, the influence of particular tutors, supervisors or colleagues during their academic career. It is worth bearing this in mind when reading the articles. Moreover, journals (and publishing houses and editors) will have their own views on what the important issues are in international and EU law today and what is the best method of addressing these issues. This will inevitably affect which articles they accept for publication and which topics they focus upon. Whilst (we hope) no scholarly journal would take up a polemical position for the sake of doing so, readers may find it is worth investigating the intellectual leanings of the main journals in their field, both for their own information once they start to consider submitting articles for publication, and as a useful way to remain sceptical about the ‘objective truth’ of each article that they read. For example, on the international law front, Carl Landauer’s article64 is a useful counterpoint to Bederman’s view of scholarship in the American Journal of International Law, mostly in understanding what vision of international law that journal represents, in order to understand the particular preoccupations of its published articles and the research questions that these articles address. Bederman’s understanding of the American Journal of International Law’s ‘agenda’ is based upon the fact that the early editors had positions in Theodore Roosevelt’s administration, including those of two War Secretaries. He posits that both the society and journal were actually vehicles of the US foreign policy establishment. Although Bederman admits that the journal has a distinctively American vision and thrust,65 he is at pains to point out that the journal has featured foreign writers, and presents views beyond the parochial. However, Landauer dismisses this 63  H Charlesworth, ‘Feminist Methods in International Law’ (1999) 93 American Journal of International Law 379–94. 64  C Landauer, ‘The Ambivalences of Power: Launching the AJIL in an era of Empire and Globalisation’ (2007) Leiden Journal of International Law 325–58. 65   D Bederman, ‘Appraising a Century of Scholarship in the American Journal of International Law’ (2006) 100 American Journal of International Law 20–63, 21, 23.

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claim, believing that the first issue of that journal is actually very parochial,66 framed only by US concerns regarding international law, but claiming to be representative of the entire English speaking world. Landauer’s article appears in the Leiden Journal of International Law, which, of course, has its own idea of how best to advance the scholarship of international law. The Leiden Journal of International Law sees itself as more self-consciously theoretical, and global in approach than the American Journal,67 and is therefore probably more likely to consider articles on, for example, Marxism or European positivism than is its American counterpart. Similarly, the European Journal of International Law perceives itself as responding to the US bias of the AJIL68 – and again, is more accepting of European contributions to international law, such as the article on Max Huber (referred to in the law and sociology section in chapter six). On the EU law front, much of the early work on EU law was strictly doctrinal, focusing on areas of law of particular relevance to the Member States in their harmonisation, such as tax or agricultural law. The Common Market Law Review, a Netherlands-based English publication, is still doctrinal in its focus, and would probably be less likely to feature articles, for instance, using a feminist approach to EU law.69 On the other hand, the European Law Journal was set up deliberately in counterpoint to this style, with a self-proclaimed ‘law in context’ approach. The European Law Review has evolved considerably since its inception as a journal of doctrinal scholarship, and the change in editor around 2005 to Damian Chalmers led to an increasingly wide range of theoretical approaches, interdisciplinary and generally reflexive pieces.70 These changes in ‘leanings’ of journals are mirrored by changes within methodological approaches and areas of study themselves, and both of these are influenced by particular events. 9/11 is an obvious example, spawning many symposia or articles analysing the events from particular methodological perspectives. Within EU scholarship there has been an increasing focus on constitutionalism (discussed below within ‘Constitutionalism’ and ‘New Governance’), and feminism and postcolonialism have also experienced phases of development. We hope all these reflections will help readers to approach the readings in the chapters below with an open mind. As a final introductory point, we hope that readers will not be daunted by the readings suggested in the chapters that follow. This book is not intended to turn all of its readers into ‘legal theorists’. Few academics are well-versed in all the methodologies we mention, and we certainly   Landauer, n 64 above, 337.   See, eg, the symposia on ‘India and International Law in the Periphery’ (2010) 23 Leiden Journal of International Law 1 and ‘Taslim Olawale Elias in the Periphery’ (2008) 21 Leiden Journal of International Law 289. 68   See JHH Weiler, ‘EJIL at Twenty: A Family Affair’ (2009) 20 European Journal of International Law 1–3. 69   Although, for an exception, see H Fenwick and T Hervey, ‘Sex Equality in the Single Market: New Directions for the European Court of Justice’ (1995) 32 Common Market Law Review 443–70. 70   It will be interesting to see whether the change of editors in early 2009 affects the focus of the European Law Review. 66 67



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do not claim to be. Rather, both the project and this book are part of a learning process for us too. We stress again that it is not necessary in a research project (including a PhD) to consider anything like all the different possible approaches that one could take, or theories that could apply in the disciplines of EU or international law. Neither is it necessary, as echoed throughout these introductory chapters, to stick too closely to one particular label. What we hope to do with the book is to help readers to develop a clearer understanding of our own different approaches, and how they apply to and inform individual research projects.

4 The Main Jurisprudential Approaches We now turn to the heart of the book. The next three chapters introduce our list of research methodologies in EU and international law and suggest readings for each approach that either explain or demonstrate the approach. We have included notes on many of the suggested readings, drawing on our own expertise and understandings of those readings. Where further reading is included for a specific reason, for instance to contrast with the main readings suggested, we have also added notes on the further reading. However, our aim with these notes is not to provide a ‘definitive guide’ to the readings suggested, but rather to encourage readers in the art of ‘reading methodologically’, as discussed in chapter one. Hence some suggested readings (particularly later on) are included without the addition of notes. We reiterate here what we said in chapter one. Readers are strongly encouraged to read the material alongside the readings that we suggest. To do otherwise is to risk misunderstanding the points that the authors chosen are making, and to miss an opportunity to practise ‘reading for methodology’, a skill which will help readers to situate their own projects within scholarship on EU and international law, to reflect on the kinds of research questions, and therefore methodologies that appeal to them, and consequently, to better understand their own research projects. As you read, we would encourage readers to ponder, and to jot down answers to the following generic questions first mentioned on p 6: What is/are the research question(s) the author asks in this piece? Why should a reader or publisher be interested? What sources/data were used? How were they used? What assumptions does the author make about law and legal research? What type of research questions can this approach answer? What are the benefits and drawbacks of this approach? What would the approach look like, if applied in the substantive area of your PhD? Even better, we would encourage readers to discuss the readings, and their answers to these questions, with other scholars in the field, or related fields. Some exercises to assist those kinds of discussions are included at the end of the book.



Natural Law

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I  Natural Law Natural law or, as it is sometimes called, the law of nature, has a history stretching back over at least 2,000 years. The vast majority of writers on law up until the eighteenth century (including such luminaries in the law of England and Wales as William Blackstone) would identify themselves with natural law thinking. Modern proponents are rarer, but there are still some avowed naturalists, such as Robert P George (whose In Defence of Natural Law1 is probably the most complete modern defence of naturalism), and John Finnis (whose Natural Law and Natural Rights (Oxford, Clarendon Press, 1980) is considered a classic of the genre). In addition, natural law thinking is more pervasive than many would think. There are various strands of natural law, both theological and secular. What they share is a view that law gains its authority, and at least some of its content, from certain immutable principles that are inherent in nature and/or reason, whether by virtue of God or not. For instance, much human rights scholarship in both international and EU law is based on a secular version of natural law, in that the content and status of human rights law is assumed by many to spring fully formed from the inherent dignity of the human being.2 Notwithstanding its pervasive nature, natural law has been heavily criticised, in particular on the basis of the subjectivity which characterises writers’ assertions of these apparently immutable natural principles (and natural lawyers do disagree on what these principles are). We have chosen representative pieces from two well-known lawyers, Sir Hersch Lauterpacht – arguably the greatest British international lawyer of the twentieth century – and Joseph Weiler, the highly respected and influential EU lawyer. Both pieces expressly admit their debt to natural law thinking.

READING

International H Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British Yearbook of International Law 1–53. EU JHH Weiler, ‘Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals-A Critique’ (1992) 3 European Journal of International Law 65–91.   RP George, In Defence of Natural Law (Oxford, Oxford University Press, 1999).   eg M Perry, The Idea of Human Rights (Oxford, Oxford University Press, 1998) and M Ignatieff, Human Rights as Politics and Idolatry (Amy Guttman ed, Princeton, Princeton University Press, 2003). 1 2

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The international law piece, Lauterpacht’s ‘The Grotian Tradition in International Law’, is a lengthy and thorough exposition of Grotius’s thought and how it relates to natural law. Lauterpacht sets out Grotius’s eclectic methodology and the intertwining of natural and positive law. He also explains in detail how Grotius conceptualises the international order, and how the aspects of that order remain relevant today. Although the piece is portrayed as being about the work of Grotius, Lauterpacht himself admitted that it was as much about how he saw international law as Grotius did (hence his concern over Grotius’s views on human rights, which were very different to his own). Lauterpacht also brings out how Grotius integrated morality into all his work (a hallmark of naturalism) but, interestingly, neither deals with one of the major critiques of naturalism, that morality is not always an objective measure of matters and is often based on unidentified major premises. Weiler is quite clear about his awareness of this point but stresses that for him it is not enough to reject the utility of moral argumentation. His playful first footnote faces the challenge head-on (although in a way that would not satisfy many of what he terms his ‘postmodern’ readers). In addition to self-consciously doctrinal analysis in the beginning and at the end of the piece, Weiler also provides his view of a way forward, expressly based on morality (and a morality based in religious texts). One might say that natural law provides an approach within which Weiler is able to answer a research question about how EU human rights law should develop. Weiler is careful, however, not to say that his view is the current law, thus avoiding one of the critiques of natural lawyers, that they often conflate the law as it is and the law as it ought to be. (Indeed it can be argued that this piece is an example of legal positivism (see below), to which is added a meta-juridical proposal for development of the law.) Yet this also raises the interesting question of who ought to be able to define what the morality of the EU should be. Moral universalists (which most natural lawyers are) would respond that they are simply setting down the objectively existing values. We also note, in parentheses, that the Judeo-Christian basis for Weiler’s critique here appears quite benign but it may be applied in what one might regard as a more problematic way in some of his later work.3 As you read, refer to the questions on page 6 in chapter 1 of this book. You might like to think about whether your own research (or other research in your substantive area) is based on a view that law’s authority or legitimacy is determined by its relationship with principles that you regard as important, by reference to reason or to ‘the way things are’ or ‘the way things should be’. Is the substantive content of the law in which you are interested determined in this way? What are the advantages of a natural law approach? What types of research question does it allow scholars to pursue – can you think of some examples? 3   See, eg, JHH Weiler, Un’ Europa cristiana (A Christian Europe) (Milan, Rizzoli, 2003; also published in German, 2004). For a review in English, see www.legalaffairs.org/issues/May-June-2004/ review_howse_mayjun04.msp.



Legal Positivism

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FURTHER READING

International S Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’ (2001) 12 European Journal of International Law 269–307. EU JP Burgess, ‘What’s So European About the European Union?: Legitimacy Between Institution and Identity’ (2002) 5 European Journal of Social Theory 467–81. Stephen Hall explains the decline of natural law theories of international law as being due to the failure of Enlightenment naturalism to understand the role of positive law in regulating the international arena. He believes that this failure should have led to a revival of earlier ideas on natural law but instead it led to the downfall of natural law and the rise of legal positivism in international legal theory. He goes on to argue that legal positivism fails to explain fully the juridical nature of international law and cannot explain the ‘persistence of non-positive juridical phenomena in the system’.4 J Peter Burgess’s article uses Montesquieu’s legal rationalism, a form of Enlightenment natural law, to explore the concept of institutional legitimacy in the EU. He then compares Montesquieu’s ideas to those of Weber, to understand different potential theoretical underpinnings of the EU’s legitimacy.

II  Legal Positivism The core tenets of legal positivism are that all law is created and laid down (‘posited’) by human beings and that the validity of a rule of law lies in its formal legal status, not its relation to morality or other external validating factors. The law is that which is validly made, and articulated, by the recognised law-making body or bodies. It is not deduced from extra-legal sources such as morality, human dignity or religious doctrine (unless a valid legal rule specifically mandates recourse to such concepts to determine its content). Hence a major aspect of positivism is its separation of (the validity of) law and morality. Positivism arose in many ways as a response to critiques of naturalism, and increasing secularism in society and the religious schisms of the seventeenth–eighteenth century: With the rise of Protestantism in Europe, and the conflicts it raised with Roman Catholicism, the idea that there was one universally accepted meaning and interpretation of nature 4   S Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivsm’ (2001) 12 European Journal of International Law 269–307, 269.

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became less convincing. Positivism also tracks, to some extent, the rise of statehood, and the corresponding replacement of power of the church in the West, with that of sovereigns (at the time, monarchs). The Treaty of Westphalia of 1648, which is often taken as the beginning of the modern international legal system of sovereign states, was in part an acceptance of the final breakdown of the Holy Roman Empire, and the idea that monarchs were responsible in the final analysis to religious authorities in Rome. Legal positivism is related to broader theoretical perspectives of positivism which hold that human knowledge is based upon that which can be experienced through the senses or through empirical observation. Law is thus the observable phenomenon of legislation, custom, adjudication by courts and other legal institutions. Legal positivism is, therefore, suited to research questions concerning the description and explanation of law as it is, including the analysis of (complex) legal texts to determine their meaning. It is suited to research projects that seek to systematise legal norms, and to understand the relationships between different bodies of legal norms, or to analysing the output of courts and their coherence, or the accuracy of their application of sources of law. Legal research based on positivism is sometimes referred to as analytical, or doctrinal, legal research. However, it is a prequel to, rather than a substitute for, the making of statements about what the law ought to be. So, for example, law and economics approaches tend to adopt a positivist approach to identifying the law, prior to critiquing it from the point of view of efficiency. Similarly Marxists and feminist authors often (although by no means always) use positivist methods to identify the law, before moving onto critiques about what the law does and does not cover. Readers may find it useful to reflect on the extent to which their research project relies on a legal positivist approach. Is positivism ‘centre-stage’, or is it a foundational stage in a project that uses other approaches as well? What are the benefits and drawbacks of legal positivism as an approach to legal research projects? It is often thought that positivism is a conservative methodology. As Bruno Simma and Andreas Paulus say, ‘[D]oes positivism not represent old fashioned, conservative, Nineteenth century continental European views – naïve views of dead white men on the possibility of objectivity in law and morals?’5 It can be, but this is by no means always the case. In the international arena, it can be a method of protecting pluralism. The first wave of postcolonial international law scholars – such as Taslim O Elias – were positivists, or used ideas traditionally associated with positivism – of sovereignty, sovereign equality and non-interference – to bolster the role of the newly independent states. A positivist version of formalism was adopted by anti-fascist Italian lawyers in the Mussolini era to attempt to limit the extent to which fascist judges sought to manipulate their legal authority. Jeremy Bentham, the great social reformer, was avowedly a positivist in terms of identifying the law. However, he believed that the law thus found ought to be 5   A Paulus and B Simma, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts – A Positivist View’ (1999) 93 American Journal of International Law 302–16, 302.



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subjected to moral, social and political critique. He believed that there was no point in pretending the law was other than that which could be observed, and that it was pointless to criticise a law for saying something it did not. Most modern positivists would also concede some force to the criticism that there can be more than one possible correct interpretation of the law, but would not accept that interpretation or legal analysis is completely subjective. Some early versions of legal positivism, such as that of John Austin, which identified law solely with commands of a sovereign to subordinates, excluded international law from the category of ‘law’, for this reason. That view, however, has been quite comprehensively refuted by later positivists (in particular Hans Kelsen and Herbert Hart – although Hart would not accept that we may speak of an international legal system rather than an international law). Positivism is the dominant approach amongst international lawyers, in particular those in practice. It represents the default position of many international and EU lawyers, and the way in which the majority of undergraduate – and probably postgraduate – international and EU law courses in the UK are taught. Again, as you read, bear in mind the questions on page 6 of this book.

READING

International I Brownlie, The Rule of Law in International Affairs (The Hague/London/Boston, Martinus Nijhoff, 1998) chapter one. EU T Schilling, ‘The Court of Justice’s Revolution: Its effects and the conditions for its consummation. What Europe can learn from Fiji’ (2002) 27 European Law Review 445–63. Almost any textbook on EU or international law would be a good place to look for a positivist approach. However, we assume you have already read some of these! We have chosen, from the international law canon, Ian Brownlie’s exposition of his (claimed) anti-theoretical approach. This is recommended reading not only because of Brownlie’s influential position in international law, but also as, despite his hostility to theory, he explains positivists such as Hart and Kelsen well, in addition to critiquing anti-positivist writers such as McDougal. He also shows how difficult it is to escape from theory, as in the end, and in spite of his protests to the contrary, he has a theory: a positivist one. An example of an explicit application of legal positivism to EU law may be found in Theodor Schilling’s 2002 article. The positivist methodology of this piece

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leads the author to deny that there exists a single, autonomous system of European Community law. The ‘revolutionary’ jurisprudence of the European Court of Justice thus ‘in principle’ leaves the national legal systems untouched, unless it is accepted, expressly or implicitly, in the legal system of a particular Member State. Do you agree? What are the implications, for instance, for the assertion that EU law is a legal order ‘sui generis’? A useful contrast is Pavlos Eleftheriadis’s article which argues that the EU’s constitutional law cannot be understood through legal positivism alone.6

FURTHER READING

International J Kammerhofer, ‘Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law’ (2009) 22 Leiden Journal of International Law 225–49. A Somek, ‘Kelsen Lives’ (2007) 18 European Journal of International Law 409–51. EU P Allott, ‘Parliamentary Sovereignty: From Austin to Hart’ (1990) 49 Cambridge Law Journal 377–80. P Eleftheriadis, ‘Aspects of European Constitutionalism’ (1996) 21 European Law Review 32–42. A recent resurgence of interest in Kelsen has led us to include two articles as further reading on the international law front. Jörg Kammerhofer’s interpretation of Kelsen’s Pure Theory as applied to international law is a useful addition to the chapter by Brownlie, as it shows an alternative type of positivism. Kammerhofer considers Kelsen’s coercive order paradigm (that law is distinguished from other legal norms by virtue of sanctions, or coercion) together with monism and pluralism as the relationship between international and domestic/municipal law. The article considers a ‘neo-Kelsenian’ view of international law, which assesses the UN Charter provisions on the use of force and whether they can be considered to be ‘sanctions’ according to Kelsen’s view of the coercive order of law. It also assesses the constitution of international law and the implications for both treaty and customary sources of international law. Alexander Somek has also written an article on Kelsen, which aims to dispel the ‘impression of fragmentation and feebleness’ of international law7 and which compares Kelsen’s theory to sociological theorising in order to demonstrate the   P Eleftheriadis, ‘Aspects of European Constitutionalism’ (1996) 21 European Law Review 32–42.   A Somek, ‘Kelsen Lives’ (2007) 18 European Journal of International Law 409–51, 409.

6 7



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superiority of Kelsenian positivism in understanding current trends in international law. On the EU front, in his case note on Factortame, Allott explains the House of Lords ruling as expressing Hartian reasoning: ‘Factortame can only mean that the courts now regard the question of the sources of law as itself a matter of law to be determined by the courts, not a matter of fact to be determined by history’.8 You will notice that Allott appears later on in the list under ‘idealist’ approaches. As noted above, we stress here the fluidity of labels; just because a particular piece is written by a particular individual does not necessarily mean that it falls under the same heading as we have placed the person under for the purposes of our list.

8   P Allot, ‘Parliamentary Sovereignty: From Austin to Hart’ (1990) 49 Cambridge Law Journal 377– 80, 380.

5 Extensions and Negations I Modern and Critical Approaches We turn now to the second part of our list, which we have conceptualised as extensions from or negations of natural law and positivism. We have used the generic label of ‘modern and critical approaches’ to group together a number of approaches that either use natural law or positivism as a springboard, or react against them. As we noted in chapter two above, there are problems with the listing of approaches in the way that we have done in this book. The list can – and will – be challenged as an incomplete or inappropriate way to categorise scholarship in EU and international law. However, we maintain that a list like this one does serve a useful purpose, in particular it allows us to introduce various different methodologies or approaches to international and EU legal scholarship that are timely, and to do so in a way that readers can both understand, and discuss with one another (even if it is only to discuss why they disagree with the list). Again, as readers tackle the readings, we would encourage that you practise the art of ‘reading methodologically’. To help with this process, readers may wish to consider the generic questions that we introduced on page 6: What is/are the research question(s) the author asks in this piece? Why should a reader or publisher be interested? What sources/data were used? How were they used? What assumptions does the author make about law and legal research? What type of research questions can this approach answer? What are the benefits and drawbacks of this approach? What would the approach look like, if applied in the substantive area of your PhD?

I  Modern Approaches The approaches outlined in this section represent ‘extensions and negations’ to natural law and legal positivism in the sense that they show thought that reflects how the discipline has moved on to develop, or even to negate, these ways of



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analysing EU and international law. For instance, the fact that ‘governance’ has become ‘Governance’ and is now something of a buzzword, particularly in EU legal scholarship, in the context of recent work on ‘new modes of governance’ determined our decision to include ‘new governance’ in this section as a modern methodology that reflects this particular event-sensitive phase in EU law. In fact, to some extent the different methodologies we have chosen to illustrate modern approaches to EU and international legal research (with the exception of ‘idealism’) share the key concept of governance as being a move away from government. Government is associated with state-based forms of regulation through the exercise of sovereign power and delegated authority. Governance suggests (EU or international) law taking its place within a wider range of law-like regulatory activities, and the use of non-governmental actors to steer behaviour, sitting alongside the ‘command and control’ of government through law. Though it is difficult to have ‘bright lines’ between the ‘modern’ approaches that we identify here, there are important distinctions between them. A liberal approach to governance focuses on individuals’ rights in the name of less government; cosmopolitanism concentrates less on the rise and fall of the state and more on global connections between, and duties of, individuals everywhere. EU constitutionalism in particular (though to some extent this applies at the international level as well) has clear links with liberalism since the ‘constitutional theory constructed for the EU’ has until recently largely (although not exclusively)1 been a thin form of liberal traditional constitutionalism linked to the notion of limited government.2 ‘Constitutionalism’ could also include ‘democratic theories’, which are of increasing relevance in legal scholarship. Democracy is a key liberal principle at the national level, which is now being applied supra- and internationally as a critique of constitutional arrangements.3 As you look at the readings, readers may wish to think about what kinds of research questions those who are interested in constitutionalism or governance methods as applied to international and EU law are pursuing. What are the underlying assumptions about law? And about legal research? Thinking back to the beginning of chapter three, readers might like to imagine what kinds of legal research project might be based on each of Neil Walker’s perspectives on the relationship between state, constitution and EU:4 What kind of research project could be based on the idea that EU constitutionalism is a ‘category error’? Is the EU sufficiently state-like so that accepted constitutional discourse can be applied to it with little or no adjustment? What about at the international level, where there is   See, for instance, the work of James Tully.   See G de Búrca, ‘The Constitutional Challenge of New Governance in the European Union’ (2003) 28 European Law Review 814, 821. 3   See, for instance, the work of Dieter Grimm, and GF Mancini’s ‘Europe: The Case for Statehood’ (1998) 4 European Law Journal 29–42, and Weiler’s response to it. On democracy and international law, see the work of David Held and Daniele Archibugi on democratising the UN, eg, D Archibugi and D Held, Cosmopolitan Democracy. An Agenda for a New World Order (Cambridge, Polity Press, 1995). 4   N Walker, ‘Legal Theory and the European Union: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 581–601. 1 2

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clearly no state-like entity? Can constitutionalism be adapted to types of polity that are not states?5 Readers might also want to consider whether they agree with Christoph Möllers6 that the relevance of governance discourse for ‘lawyers’ law’ is limited – ‘a governance perspective transforms legal knowledge from questions of legality to questions of optimal institutional arrangement’.7 Is the implication that the only thing lawyers can bring to analysis of new governance is descriptions of the law? What alternative research questions might legal scholars pursue within governance approaches – for instance, what distinctions are there between governance and government? A further question readers may wish to reflect upon when reading the liberalism material is whether or not the area of law under examination could be considered ‘fair’ in the Franckian sense, or could be evaluated according to liberal or cosmopolitan principles.

A Liberalism ‘Liberalism’ has been defined by Nicola Lacey (who defines the ‘liberal’ in ‘liberal feminism’) as the ‘dominant political expression of progressive thought in the modern age, but it itself encompasses a range of doctrines. Most would agree that liberalism centres on the core ideas of autonomy, of universal rights, of equal citizenship and democracy – but exactly what these ideas amount to has varied over the decades.’8 Liberal scholarship seeks, essentially from an evaluative standpoint, to appraise international (or EU) law by reference to modern liberal political theory (liberal economic theory provides a quite different approach, see below under ‘Law and Economics’.) Sometimes the relevant theory, such as the ‘justice as fairness’ of John Rawls, is imported from work focusing on the domestic legal and political arenas. In others, such as the work of Anne-Marie Slaughter and many other American scholars, the relevant theory is drawn from liberal international relations theory (as such their work also falls into the area of interdisciplinary studies). Sometimes (as with, for example, Thomas Franck), part of the point of the work can be to show how international or EU law already embodies such principles. When it does so, the work in this area can use liberal theory as a form of immanent (or internal) critique, that is, a critique based on the idea that an area of law is failing to live up to its own professed goals or principles. Other scholars are happier to use liberal theory as an external critique, that is, to defend their evaluative principles philosophically and apply them to international and EU law as such, rather than claiming they reflect principles already existing in the 5   This is a concern in particular of, eg, Jan Klabbers, ‘Setting the Scene’ in J Klabbers, A Peters and G Ulfstein (eds), The Constitutionalization of International Law (Oxford, Oxford University Press, 2009) 1, 4. 6   C Möllers, ‘European Governance: Meaning and Value of a Concept’ (2006) 43 Common Market Law Review 313–36. 7   ibid 336. 8   N Lacey, ‘Feminist Legal Theory and the Rights of Women’ in K Knop (ed), Gender and Human Rights (Oxford, Oxford University Press, 2004) 13, 19.



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law. Liberal scholarship has, unsurprisingly, been criticised by scholars from Marxist, feminist, and other critical approaches (see below) as reflecting the biases of the relatively privileged, and for arguing for incremental change, or the status quo, rather than transformative policies. Others criticise liberal scholars for uncritically applying domestic political theories to the international realm.

Reading

International I Scobbie, ‘Tom Franck’s Fairness’ (2002) 13 European Journal of International Law 909–25. EU I Ward, A Critical Introduction to European Law (Cambridge, Cambridge University Press, 2009) chapter eight, 223–25. Iain Scobbie’s piece is a brief, but accurate and sympathetic, account of Thomas Franck’s approach to international law, which has been developed over a number of books and articles. Franck’s starting point is that it is no longer necessary to ‘argue about whether international law is or is not “really” law’9 and the more important issues to address now are an assessment of international law’s qualities – in particular, fairness. Scobbie sees Franck’s requirement of fairness as having a procedural element of legitimate process, in both the creation and application of rules10 – a key feature of liberal political theory which seeks to constrain arbitrary action by rulers. As one of the criticisms often heard of literature in the area of theory is that it is impenetrably written, this piece stands as a counter-example; proof that theoretical work can be written in an accessible way. Ian Ward comments that despite the absence of a blueprint for EU integration and the consequent reliance on law,11 ‘any political community is underpinned by some kind of theoretical rationale, one that, invariably, seeks to provide a measure of collateral political, even moral, legitimacy’.12 He then goes on to examine what the theoretical rationale underpinning EU integration could be, discussing liberalist, social-democratic, post-modern and cosmopolitan critiques of the EU. At pages 223–25 he discusses the liberal approach to EU law and governance. Ward outlines the liberal critique of Europe and its focus on the absence of citizenship   I Scobbie, ‘Tom Franck’s Fairness’ (2002) 13 European Journal of International Law 909–25, 909.   ibid 911. 11   I Ward, A Critical Introduction to European Law (Cambridge, Cambridge University Press, 2009) 212. 12  ibid. 9

10

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‘in meaningful form, in the European Union’.13 He notes the increase of ‘negative market rights’ against the retreat of ‘positive civic rights’14 and believes that this can be seen as a crisis of the ideas of ‘Enlightenment liberalism to which Europe is “heir”’ – and to respond to this crisis, we must elevate the ideals of European integration from its structural/procedural components.15 He then addresses the democratic deficit and the failure of Europe to live up to democratic ideas, which he ties to ‘the absence of a credible conception of citizenship’.16 Ward then goes on to offer some criticisms of the liberal approach to EU law and integration, in particular its potentially instrumental rather than moral basis.17

Further Reading

International M Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15 European Journal of International Law 907–31. Mattias Kumm also considers Thomas Franck’s ideas on the legitimacy of international law, in a slightly different vein to Scobbie’s piece. Discussing the relationship between international and national law and demonstrating the close link between liberalism and some constitutional scholarship, he goes on to outline a ‘constitutionalist model’ as a framework for analysing the legitimacy of international law according to the ideals of national constitutional democracy.

B Cosmopolitanism The word ‘cosmopolitan’ comes from the Greek ‘kosmopolitês’ – a ‘citizen of the world’. This comment is attributed to Diogenes the Cynic in the fourth century BC, demonstrating the long history of cosmopolitanism as a political theory. The influence of Diogenes can be seen in the Stoics in the second–third century BCE followed by Cicero, Marcus Aurelius, St Augustine and Thomas Aquinas (both these latter more traditionally associated with the development of natural law from its religious origins) and – most importantly – Immanuel Kant in the eighteenth century. The basic tenets of cosmopolitanism are those of individualism, egalitarianism and universalism – the individual human being is the relevant ‘unit’ of moral worth, this moral worth should be applied to all human beings equally and universally across the globe, regardless of an individual’s place of birth or affiliation to other local communities.   ibid 223.  ibid. 15  ibid. 16   ibid 224. 17   ibid 224–25. 13 14



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Kant was a particularly important cosmopolitan scholar as he was the first to build on the moral idea of cosmopolitan identity to suggest legal, political and institutional mechanisms to realise the cosmopolitan ideal.18 In particular, his essay Perpetual Peace recommends that there be a duty of good faith in dealings between states as well as mutual security, self-determination and noninterference;19 that every state should be ‘republican’ (generally taken now to mean to be a constitutional democracy); and that states should form a federation based on the notion of universal hospitality (encompassing freedom from hostility as well as freedom to travel, to communicate and engage in public reason, to engage in commerce and to use the world in common).20 Though Kant was not the first cosmopolitan, David Held and Garrett W Brown argue that his work is the most important, partly because it was the first to move forward in a significant way from the moral ideal to the practical realisation of these ideals; and also because they assert that every current cosmopolitan writer draws upon Kant’s work, even if only implicitly.21 This is an avowedly normative, idealistic theory rather than one which purports to describe the world as it is. Though some writers believe that parts of our legal system embody cosmopolitan principles,22 the majority use cosmopolitanism as an ideal standard against which to measure laws or institutions. Cosmopolitanism shares some characteristics with liberalism (for example the importance of freedom of the individual), but is a distinct theoretical viewpoint. Cosmopolitanism has a longer history than most would consider liberalism to have; it also focuses less on the relative rise and fall of the state as against non-state actors of various kinds (such as individuals and corporations) and more on the global connection between individuals and the resulting need for a global cosmopolitan law.23 Cosmopolitans differ in their view of how to realise cosmopolitan ideals in institutions – some approve of the idea of a world state;24 others take a more minimalist view.25 Ba¸sak Çali notes this in her review article of three books on cosmopolitanism, in which she outlines her own view of the different legal and political approaches to cosmopolitanism – she believes that different disciplines have ‘different purposes in treating or invoking cosmopolitan ideals, aspirations and practices’.26   D Held and GW Brown (eds), The Cosmopolitanism Reader (Cambridge, Polity Press, 2010) 12.   GW Brown, ‘Kantian Cosmopolitan Law and the Idea of a Cosmopolitan Constitution’ (2006) 27 History of Political Thought 661–84, 679–81. 20   ibid 667–69. 21   Held and Brown, n 18 above, 13. 22   E Petersmann, ‘How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society’ (1998) 20 Michigan Journal of International Law 1–30. 23   For one writer’s discussion of the difference between liberalism and cosmopolitanism and their view of the fusion of these two ideas by Immanuel Kant, see C Berry, ‘Liberal Political Theorists, the Cosmopolitan Tradition and Globalisation Discourse’ (2008) 3 In-Spire: Journal of Law, Politics and Societies 15–32. 24  See, eg, Wolff and Axinn cited in GW Brown, ‘State Sovereignty, Federation and Kantian Cosmopolitanism’ (2005) 11 European Journal of International Relations 495–522, 499. 25   See Brown’s own view, ibid. 26  B Çali, ‘On Legal Cosmopolitanism: Divergences in Political Theory and International Law’ 18 19

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Reading

International T Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48–75. EU E Eriksen, ‘The EU – a cosmopolitan polity?’ (2006) 13 Journal of European Public Policy 252–69. Thomas Pogge’s article represents a project to develop legal cosmopolitanism at a global institutional level – again, a view of how the world ought to be, rather than how it is. As a discussion of institutional reform, this article has a constitutional flavour, but focuses more on the specific international law notion of sovereignty and how this legal norm could be amended, and less on the constitutionalisation (or lack thereof) of international law more generally. It is also interesting to note Pogge’s clarity about the scope of his article in the wider context of cosmopolitan theory, setting out his own view of cosmopolitanism and noting what this means he will not discuss27 before addressing his particular question – the issue of sovereignty based on his view of cosmopolitanism. He distinguishes between legal and moral cosmopolitanism (compare this to Held and Brown’s distinctions),28 and conceives of moral cosmopolitanism as a somewhat thinner notion than the legal, where ‘all persons stand in certain moral relations to one another’.29 Legal cosmopolitanism, by contrast, requires specified rights and duties and is an institutionalisation of the moral form. Pogge then goes on to discuss sovereignty and assess the concept according to cosmopolitan standards, offering an alternative to the traditional importance of state sovereignty so as to reduce the importance of the state and promote other ‘levels’ of human obligation, from the global to the local.30 It is also worth noting Pogge’s distinction between cosmopolitanism and libertarianism, with cosmopolitanism requiring a more positive notion of the duties which we owe to our fellow humans – more than just leaving them alone. Erik Oddvar Eriksen’s article notes that the EU ‘exports the rule of law, democracy and human rights worldwide’31 and assesses the ‘normative quality’ of the EU’s actions according to cosmopolitan standards. Eriksen defines a cosmopolitan order as ‘one where actors subject their actions to the constraints of a higher ranking law’32 – note that he does not delve into cosmopolitanism’s past to exam(2006) 19 Leiden Journal of International Law 1149–163, 1153. 27   T Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48–75, eg at 49 and fnn 1–4. 28   ibid 49; Held and Brown, n 24 above. 29   ibid 49. 30   ibid 58. 31   E Eriksen, ‘The EU – a cosmopolitan polity?’ (2006) 13 Journal of European Public Policy 252–69, 252. 32   ibid 253.



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ine its theoretical foundations, but simply explains his view of modern cosmopolitanism as human rights enforced by judicial review and written constitutions.33 He also takes the view that Kantian cosmopolitanism allows for the coercive use of force, a view which is not shared by all cosmopolitans.34 Eriksen sees the supranational nature of EU law and the entrenchment of human rights as evidence that the EU is a cosmopolitan order, with both internal and external promotion of human rights and democracy.35 He then deals with criticisms of the idea, such as the realist critique that the EU’s actions are motivated by self-interest. This article also has a somewhat constitutionalist flavour.36

Further Reading

International GW Brown, ‘Kantian cosmopolitan law and the idea of a cosmopolitan constitution’ (2006) 27 History of Political Thought 661–84. P Capps, Human Dignity and the Foundations of International Law (Oxford, Hart Publishing, 2009). F Teson, ‘The Kantian Theory of International Law’ (1992) Columbia Law Review 53–102. F Teson, ‘The liberal case for humanitarian intervention’ in J Holzgrefe and R Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, Cambridge University Press, 2003) 93–129. EU P Eleftheriadis, ‘The European Constitution and Cosmopolitan Ideals’ (2001) 7 Columbia Journal of European Law 21–39. C Rumford, ‘Resisting Globalization? Turkey-EU Relations and Human and Political Rights in the Context of Cosmopolitan Democratization’ (2003) 18 International Sociology 379–94. The further readings vary greatly, offering a detailed explanation of cosmopolitanism (encompassing a variety of interpretations of Kant’s writings)37 or using cosmopolitanism without such an exegesis, applied to both the concept of international law (for example, whether international law does contain cosmopolitan   ibid 254–55.   ibid 253; cf C Covell, Kant and the Law of Peace: a study in the philosophy of international law and international relations (Basingstoke, Macmillan, 1998). 35   Eriksen, n 31 above, 259–62. 36   ibid 259. 37   F Teson, ‘The Kantian Theory of International Law’ (1992) Columbia Law Review 53–102 and Brown, n 19 above. 33 34

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ideals at its roots)38 and its application (to the constitutionalism debate;39 to the governance of peace and security)40.

C Constitutionalism Constitutionalist approaches to international or EU legal scholarship are about more than the institutional structure and mandate of international organisations and their founding documents – constitutionalism examines ‘the values and principles that an entity possesses or should possess’.41 Tsagourias describes ‘constitutionalism’ as ‘the ideology behind the process of constitutionalisation and the ideology behind constitutions as outcomes’.42 A constitutionalist approach to EU and international law can lead one to different conclusions: either that there is evidence of constitutionalisation beyond the state, or that in fact there is a plurality of different legal structures with no constitutionalist hierarchy (our further reading includes examples of both approaches). When reading on constitutionalism, it is worth bearing in mind chapter three of this book where we discuss the connection between different levels of national, EU and international law. Some constitutionalist work considers a particular ‘level’ in isolation (our international law reading is an example of this) but much work draws on comparisons with domestic (or other) constitutions. This, and the constitutionalist-pluralist divide, is perhaps best illustrated by example, using one of many case notes on the ECJ’s judgment in Kadi and Al Barakaat43 in which the ECJ considered the effect of the UN Security Council’s targeted sanctions naming and freezing the assets of suspected terrorists. The ECJ held that the international legal obligations of states to obey the Security Council’s order was subject to European human rights law – in other words, that the European constitutional regime could not be overridden by the UN. Takis Tridimas and Jose Gutiérrez-Fons state their preference for the ECJ’s approach over that of the Court of First Instance which ‘accorded to UN primacy its fullest weight allowing it to perforate the constitutional boundaries of the Community legal order’.44 This takes a constitutionalist approach to EU and international law, but with different ‘results’ for the different legal orders – the 38   P Capps, Human Dignity and the Foundations of International Law (Oxford, Hart Publishing 2009). 39   Brown, n 19 above, 24 and P Eleftheriadis, ‘The European Constitution and Cosmopolitan Ideals’ (2001) 7 Columbia Journal of European Law 21–39. 40  F Teson, ‘The liberal case for humanitarian intervention’ in J Holzgrefe and R Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, Cambridge University Press, 2003) 93–129. 41   N Tsagourias, ‘Introduction – Constitutionalism: a theoretical roadmap’ in N Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge, Cambridge University Press, 2007) 1. 42  ibid. 43   Joined Cases C-402/05 P & C-415/05 P Kadi & Al Barakaat v Council of the European Union [2008] ECR I-6351. 44   T Tridimas and J Gutiérrez-Fons, ‘EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?’ Research Papers in Law, Cahiers Juridiques No 3/2008.



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constitutional nature of the EU in relation to Member States is not in doubt, but in relation to the EU, the supremacy of European human rights protections over UN obligations is welcomed – perhaps suggesting a certain scepticism towards international constitutionalism at the UN level? Instead, the authors envisage a plurality of international legal regimes, with the UN and EU in a heterarchical relationship.45 Although the early EU constitutionalist scholarship tended to be from a liberal perspective, at the present time there has been considerable political activity and a widening of the intellectual and popular debate on European constitutionalism. In relation to the EU, this shift is, according to Neil Walker, a ‘(re)turn’ rather than a turn, in that the increasing academic scholarship on constitutionalism in the EU has a rich history of development and has for years been used as a means of describing the European integration process.46 As such, the constitutional (re)turn is an event-sensitive phase in EU legal theory – and a recent phase at that. With respect to phases in EU scholarship, it is important to consider whether constitutionalism is a methodological approach to law or simply a theme arising in work of a particular time. In terms of EU constitutionalism, recent literature suggests that constitutionalism is in fact a methodology that can be employed to reveal new insights into the EU as a legal construct. As we noted above, Walker, for instance, asks whether the EU requires ‘new tools of analysis’ and he leaves us with the ‘new tool’ of the ‘discourse of constitutionalism’.47 The research question that is asked in his piece describes constitutionalism as a method: what fresh insights and challenges will the ‘trend towards thinking in a constitutional register bring’?48 Similarly, in a collection edited by Joseph Weiler and Marlene Wind, Walker describes constitutionalism as a ‘deeply contested but indispensable symbolic and normative frame for thinking about the problems of viable and legitimate regulation of the complexly overlapping political communities of the postWestphalian world’.49 What these scholars are interested in are the possibilities of ‘constitutional translation’ from Member States to the Union. Weiler in 1999 spoke of the deep-seated ‘problems of translation’ of the core normative concepts of constitutionalism from the state to the EU setting. The importance of engaging with constitutional discourse and addressing the problem of translation is that constitutionalism has some value as a form of knowledge production50 – of asking the right questions, if not formulating any answers, as to the regulatory dynamic of the EU. 45   For further comment see G de Búrca, ‘The European Court of Justice and the International Legal Order after Kadi’ (2010) 51 Harvard International Law Journal 1. 46   N Walker, ‘Legal Theory and the European Union: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 581–601. For an early, and canonical, example, see JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403, 2413; reprinted and developed in JHH Weiler, The Constitution of Europe (Cambridge, Cambridge University Press, 1999). 47   Walker, n 46 above. 48   ibid 599. 49   N Walker, ‘Postnational Constitutionalism and the Problem of Translation’ in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (Cambridge, Cambridge University Press, 2003) 53. 50   ibid 27.

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In international law, the literature on constitutionalism is less developed, although there is now a body of scholarship in the area. There are different types of scholarship within this broad heading, including scholars such as Bardo Fassbender, who seek to evaluate the extent to which the international legal order can be described in constitutional terms, or be seen as a constitutional system, often drawing from debates about constitutions that have developed at the domestic level (which others find at times inapt). Other scholarship that considers itself contstitutional includes those who seek to imagine an international constitutional ordering, and seek to work towards that. Much of the work responds (or attempts to respond) to fears about the fragmentation of international law, or, to critics, comes from a conscious or otherwise desire to export Western-liberal ideals throughout the world.51

READING

International B Fassbender, ‘The UN Charter as the Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529–616. EU N Walker, ‘EU Constitutionalism in the State Constitutional Tradition’ (September 2006) EUI Law Working paper No 2006/21. Fassbender comments that, in relation to international legal scholarship, ‘the present-day debate is dominated by scholars who cautiously seek to develop the international legal system towards greater cohesion and effectiveness’52 and that a constitutional approach to international law and international organisations is their way of developing the international legal system. Whilst being aware of the transformative aim of these constitutionalists, Fassbender does not explicitly place himself within this category and purports to describe the current work on constitutionalism. When he comes to analyse the current work, however, he reveals himself to be a constitutionalist, in his assessment of the UN Charter and its constitution-like provisions. He believes that a constitutionalist approach has much to offer international legal scholars – first as a useful descriptive tool in relation to ‘the organization and allocation of authority and responsibility’53 (emphasis 51   eg D Kennedy, ‘The Mystery of Global Governance’ in J Dunoff and JP Trachtman (eds), Ruling the World: Constitutionalism, International Law and Global Governance (Oxford, Oxford University Press, 2009). 52   B Fassbender, ‘The UN Charter as the Constitution of the International community’ (1998) 36 Columbia Journal of Transnational Law 529–616, 551. 53   ibid 553.



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added) and second as a normative agenda, because the ‘classical goals of constitutionalism’ (such as individual freedom and security, transparency, peaceful dispute settlement) ‘are yet to be achieved on the international plane’.54 Fassbender then goes on to consider the UN Charter and assess its constitutional nature, concluding with the ramifications of the Charter’s constitutional states, such as its alleged ability to bind non-Member States, by Articles 2(6) and 103,55 or the changing interpretation of Charter provisions such as the widening concept of international peace and security.56 Walker’s piece (which is quite a challenging read) encourages a renewal of the constitutional debate, which in turn encourages a ‘reflexive turn’ or a ‘collective reflexivity,’ in other words a critical methodology. His aim in the piece is to provide a theoretical framework within which the adaptability of the state constitutional tradition to the supranational site (the EU) can be posed in a challenging manner. He begins by emphasising that the question of EU constitutionalism (constitutionalism as a language/discourse) is a question of whether it can be ‘translated’ to the EU from the state tradition. This question has significant theoretical and practical-political implications. He then considers the question through examining the range of meta-theoretical perspectives that it is possible to adopt on the relationship between the state, constitution and the EU. Having determined that the ‘adaptation perspective’ is the most promising, since it allows for the transformability of historically embedded concepts, most of the rest of the piece (which you need only skim) then elaborates on ‘adaptation’. He identifies five aspects of state constitutionalism (legal order, political system, self-authorisation, societal integration and political reflexivity), which can be conceptualised in ways that go beyond their applicability only to states. This scheme allows Walker to ask certain questions as to the nature and viability of European constitutionalism.

FURTHER READING

International M Koskeniemmi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization’ (2007) 8 Theoretical Inquiries in Law 9–36. N Krisch, ‘The Pluralism of Global Administrative law’ (2006) 17 European Journal of International Law 247–78. W Werner, ‘The never-ending closure: constitutionalism and international law’ in N Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge, Cambridge University Press, 2007) 329–67.  ibid.   ibid 593. 56   ibid 594. 54 55

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J Dunoff and JP Trachtman (eds), Ruling the World: Constitutionalism, International Law and Global Governance (Cambridge, Cambridge University Press, 2009). J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford, Oxford University Press, 2009). EU D Curtin and I Dekker, ‘The EU as a “layered” international organisation: institutional unity in disguise’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999). P Eleftheriadis, ‘The European Constitution and Cosmopolitan Ideals’ (2001) 7 Columbia Journal of European Law 21–39. N Krisch, ‘The Open Architecture of European Human Rights Law’ London School of Economics Law Society Economy Working Papers 11/2007. Werner offers a useful explanation of the different ways and ends to which ‘constitutionalism’ language is used in international law57 with a historical perspective of the legal developments leading scholars to use this language, and then discusses the challenges to the international constitutionalism project and explains/ examines the normative content in the international constitutionalism project. Koskeniemmi’s piece is more sceptical about international constitutionalism and, as such, is a useful counterpoint to the main reading. Krisch’s international law piece takes a pluralist approach to international law and global governance. Krisch argues that the pluralist structure resulting from ‘[N]ational, international and cosmopolitan constituencies . . . competing for primacy’ results in ‘an often disorderly interplay of accountability mechanisms at different levels and in different regimes’.58 He defends this pluralism against the ‘ideals of coherence and unity in modern constitutionalism’59 on both pragmatic and normative grounds, on the basis that ‘by denying all constituencies primacy it reflects the legitimacy deficits of each of them’.60 Krisch’s article on the European human rights regime also takes a pluralist approach, seeing the relationship between different human rights protection within the EU in a heterarchical rather than hierarchical relationship. Both the Dunoff and Trachtman and the Klabbers, Peters and Ulfstein pieces, in different ways, show various themes that are now arising in constitutionalist thinking in international law. Dunoff and Trachtman’s edited collection contains a variety of views on constitutionalism, both at the international and EU level, while Klabbers, Peters and Ulfstein offer a sympathetic, but critical, external perspective on the themes of constitutionalism. 57   W Werner, ‘The never-ending closure: constitutionalism and international law’ in N Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge, Cambridge University Press, 2007) 329–67, 330. 58   N Krisch, ‘The Open Architecture of European Human Rights Law’ London School of Economics Law Society Economy Working Papers 11/2007, 247. 59  ibid. 60  ibid.



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D  ‘New Governance’ As Graínne de Búrca and Joanne Scott explain, there is no easy or settled definition of ‘new governance’. Rather, ‘it is a construct which has been developed to explain a range of processes and practices that have a normative dimension but do not operate primarily or at all through the formal mechanism of traditional command-and-control-type legal institutions’.61 In relation to EU legal scholarship, constitutionalist and ‘new governance’ methodologies overlap – constitutionalism is a popular line of inquiry for scholars exploring ‘new governance’.62 The notion of an event-sensitive phase in EU legal theory can be said of ‘new governance’ as much as constitutionalism. This now fashionable term has become increasingly popular since the document entitled ‘European Governance: A White Paper’63 launched the debate on European governance in 2001, although actually that document is more about the ‘classic Community method’ than what is now understood as ‘new governance’.64 As a particular event-sensitive phase, this methodology has no direct equivalent at international level, although there is frequently discussion of ‘governance’ (although not ‘new governance’) in international law. In line with our thinking on constitutionalism, we also view ‘new governance’ as a new tool for analysis of the EU, and thus as a methodology in its own right rather than just a theme of EU scholarship. Möllers asks the question of what governance means for a European legal method.65 An interesting issue is how ‘new’ governance departs from the ‘old’ method of government. This piece is critical of ‘new governance’, and in particular refutes its claim to bring new ways of solving old problems. Charles Sabel and Jonathan Zeitlin hold the opposite viewpoint.66 Although there may be some links between ‘new governance’ and the emerging field of global administrative law in international law, there is, as yet, little if any international legal scholarship that self-identifies as, or could really be considered, ‘new governance’ in international law. This means, if anything, that there is scope for work in this area and international lawyers are encouraged to look to the EU literature to see if there are themes or ideas that can be ‘read across’ into international law. 61   G de Búrca and J Scott (eds), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006) 2. 62   See, for instance, ibid – particularly the editors’ introduction, ‘Introduction: New Governance, Law and Constitutionalism’ and Walker’s chapter on ‘EU Constitutionalism and New Governance’, 15. 63   COM (2001) 428. 64  See J Scott and D Trubek, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8 European Law Journal 1–18. The White Paper defines ‘governance’, though oddly in a footnote, as ‘rules, procedures and behaviour that affect the way in which powers are exercised at the European level, and particularly as regards openness, participation, accountability, effectiveness and coherence’, Commission (EC),‘European Governance: A White Paper’, COM (2001) 428 final, 25 July 2001, 8, fn 1. 65   Möllers, n 6 above, 314. 66  C Sabel and J Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the European Union’ (2008) 14 European Law Journal 271–327.

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READING

EU C Möllers, ‘European Governance: Meaning and Value of a Concept’ (2006) 43 Common Market Law Review 313–36. In an article that is highly sceptical about the ‘newness’ of ‘new governance’, Möllers explores the shift in EU legal discourse on integration at the institutional level from talk of the ‘Community method’ to talk of ‘governance’. He explores the shift in terminology from government to governance. Möllers labels ‘governance’ as a specific response to a specific ‘institutional situation’,67 which is in line with our earlier description of governance as an ‘event-sensitive phase’. ‘Governance’ perspectives imply certain features:68 externality (governance takes a perspective from outside the state); public/private holism (governance happens through networked structures of public and private actors, not through a pyramid formation of public hierarchy); distinctions between formal legal means and informal means are less important (hence governance, in Möllers’ sense, does not always use formal legal acts, but also uses ‘soft law’); an interest in efficiency and output; and sectorality (governance need not be all-encompassing, but may apply just to one specific regulatory sector). Möllers then applies his features to the EU, and finds many of them represented there.69 He draws out the implications for EU administrative law, referring to traditional concerns such as the role of interest groups and informal transnational networks in administrative law-making; and technical standardisation. Möllers takes the view that the implications for legal research are significant – ‘legal knowledge becomes a descriptive tool rather than a normative one’.70

FURTHER READING

EU G de Búrca, ‘New Modes of Governance and the Protection of Human Rights’ in P Alston and O De Schutter (eds), Monitoring Fundamental Rights in the EU (Oxford, Hart Publishing, 2005). G de Búrca and J Scott (eds), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006).

  Möllers, n 6 above, 318.   ibid 315–18, 322. 69   ibid 323–24. 70   ibid 318. 67 68



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C Joerges, Y Meny and JHH Weiler, ‘Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance’, Jean Monnet Working Paper 6/2001. C Scott, ‘The Governance of the European Union: The Potential for Multi-Level Control’ (2002) 8 European Law Journal 59–79. K Sideri, Law’s Practical Wisdom: The Theory and Practice of Law Making in New Governance Structures in the European Union (Ashgate, Aldershot, 2007). Sideri takes a critical theory approach to some of the assumptions underlying an understanding of the function of new modes of legal ordering and governance. As such, it is also suggested further reading in our ‘critical theory’ section.

E Idealist To represent idealism in both international and European law thinking, we have chosen Philip Allott. Allott is one of the most self-consciously iconoclastic thinkers in international and European law. Put simply, his view is that our current economic, political and institutional structures repress us not only physically, but mentally. His argument is that ideas form and create systems, and that the current international system, including the European legal system, is based on an elitist, bureaucratic and statist set of ideas. These in turn prevent us (though not completely) from re-imagining ourselves and our social structures to better serve the interests of humanity as a whole. Allott is often described as a utopian, a charge that he firmly rejects. He does this on the basis that he is of the opinion that to engage in political philosophy is a form of social action. Thus, since ideas are the foundations of all social structures, to change ideas about how such structures ought to be arranged will inevitably lead to changes in those structures. The most comprehensive version of his ideas is his Eunomia: New Order for a New World.71 This is an extraordinary attempt to re-imagine the entire international legal system. As this is its project, it is unsurprising that it adopts a highly individual (and not simple) tone and vocabulary, and is highly challenging. In spite of its merits, it is not recommended for light bedtime reading! What kind of research questions is someone like Allott interested in? What assumptions are made about legal research? What would Allott’s approach look like, if applied to the substantive area of your PhD? Is there anything iconoclastic about your research project or its research questions? Should there be?

71   P Allott, Eunomia: New Order for a New World (Oxford, Oxford University Press, 1990. Paperback (with new preface) 2001).

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READING

International P Allott, 1989 Josephine Onoh lecture, ‘International Law and International Revolution: Reconceiving the World’ reprinted in P Allott, The Health of Nations (Cambridge, Cambridge University Press, 2005) 399. EU P Allott, ‘The European Community is not the True European Community’ (1990–91) 100 Yale Law Journal 2485–500. We have chosen representative works by Allott on international and EU law. The first (which it is recommended is read first by all, both international lawyers and EU lawyers, as it is probably his most accessible writing, and one which sets out the tone for much of his work), is his 1989 Josephine Onoh lecture, ‘International Law and International Revolution: Reconceiving the World’. In this, he relates the social problems of the world (including social pragmatism rather than radical rethinking) to the breakdown in the idea of an overarching society of humanity, which was replaced (according to Allott) with a statist standpoint in the nineteenth century, when Vattel rejected the idea of such a society, and this view catching on with statespeople, whose interests it served. In many ways his work is a critique of positivism, and draws upon, amongst other things, aspects of Marxism and constructivism (although Eunomia is, to the chagrin of many readers, largely unreferenced). Some also consider Allott to be a critical scholar, but he is hostile to any such suggestions. From an EU law perspective, we have chosen his ‘The European Community is not the True European Community’. This essay, like many of Allott’s works, is quite a difficult read, and frames his discussion in a more general sphere of theories of knowledge. The essay is a counterpoint to (and is published directly after) Joseph Weiler’s more traditional ‘The Transformation of Europe’,72 and shows in particular his view of the disjunction between current social structures and our highest ideals and culture. In this, one of the critiques of Allott – that his views can have an aristocratic undertone – can perhaps be seen.

FURTHER READING

P Allott, ‘Language, Method and the Nature of International Law’ (1971) 45 British Yearbook of International Law 79–135 (written whilst he was still employed as a lawyer by the British Foreign and Commonwealth Office).   JHH Weiler, ‘The Transformation of Europe’ (1990–91) 100 Yale Law Journal 2403–483.

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P Allott, The Health of Nations (Cambridge, Cambridge University Press, 2004) (which collects a number of his essays on international and European law). Symposium on Allott in (2005) 16 European Journal of International Law 255–353. (Allott has also written two novels (Invisible Power I and II) which investigate similar themes to his more academic work, and may be an interesting and easier alternative to some of this reading.) A Buchanan, ‘Reforming the law of humanitarian intervention’ in J Holzgrefe and R Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, Cambridge University Press, 2003) 130–73. R McCorquodale, ‘An Inclusive International Legal System’ (2004) 17 Leiden Journal of International Law 477–504. Whilst Allott offers a particular vision of the world, there are plenty of scholars whose work can be considered idealist or utopian.73 Consider the pieces by Allen Buchanan and Robert McCorquodale – neither author openly subscribes to a particular theoretical approach to their topic, though McCorquodale starts his article with a quote from Allott’s Eunomia. Are these pieces idealist visions of a particular legal order? Are they, explicitly or implicitly, drawing upon Allott’s ideas or do they draw their inspiration from other scholars? As you read, again think about the questions on page 6 of this book.

II  Critical Approaches What does ‘critical’ and indeed, ‘Critical’ mean? This question caused us, and continues to cause scholars, much difficulty and has led to much debate over the label. The approaches included in this chapter can all be termed ‘critical’ in the sense that they engage in critique and are a departure from the ‘traditional’ methodologies associated with the study of EU and international law and discussed in chapter four. The term ‘critique’ stems from the Greek word ‘krisis’, which implies an art of judgement.74 While critique has etymologically moved away from crisis, there is a sustained connection between critique and ‘critical condition’. A ‘critical condition’ requires immediate, accurate and effective action. It is a particular kind of call, ‘an urgent call for knowledge, deliberation, judgment and action to stave off catastrophe’.75 Critique, or critical theory, can be described as a ‘will to knowledge’ (a phrase taken from Michel Foucault’s The History of Sexuality – see 73  See for instance S McManus, Fictive Theories: Toward a Deconstructive and Utopian Political Imagination (New York, Palgrave, 2005). The Introduction outlines, and the readings (from Hobbes and Rousseau through to Nietzsche and Derrida) develop and practice, a deconstructive and utopian methodology. Although McManus writes as a political theorist, her methodology can be applied to a study of (EU and international) law. 74   W Brown, Edgework: Critical Essays on Knowledge and Politics (Princeton, Princeton University Press, 2005). 75   ibid 7.

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below for more on Foucault); it really wants to know how things work and why, not simply how we are told they are supposed to work. Critique (and by implication this would suggest the same of critical approaches) has been accused of being is ‘disinterested, distanced, negating or academic’76 and that it does not provide insights into progressive change.77 However, critical scholars defend their approach as neither disinterested nor distant; on the basis that critical scholarship engages the system that it contests, re-reading it and reconsidering its claims, searching for what is authentic in that system. The system in our context is EU and international law. We explain more about critique in this sense under the ‘critical theory’ section below. The approaches we include under the broad heading of ‘critical approaches’ have in other legal theory textbooks been included under headings such as ‘modern critical perspectives’,78 ‘critical perspectives on law’79 and ‘critical jursiprudence’.80 ‘Critical theory’ (small ‘c’!) could thus have been the heading of this section as it can act as an umbrella term for these, and other, approaches. As always, there are approaches which these (and other) textbooks refer to but which we have left out: for example, Critical Race Theory and a specific section on Critical Legal Studies (although see our heading of ‘critical theory’ for more on Critical Legal Studies). After much deliberation, we eventually decided there was something more specific that could be labelled as a ‘critical theory’ approach and so we settled on the umbrella term ‘critical approaches’ with which to head this section. We should make the point that, despite all our anxiety, ‘the anxiety is probably unwarranted because the label we give to the theory is far less important than the conceptual tools and strategies we ascribe to it’.81 We begin the list with Marxism since all critical approaches are indebted to this moment in history/methodology and share with Marxism a concern with the extent to which purportedly neutral concepts are neither natural ‘givens’, nor neutral, but rather cultural constructs usually blind to themselves. Readers might like to think about what a critical approach would bring to their research projects. What kinds of research questions can such approaches tackle? How would a critical perspective change the kinds of questions that are being asked? What assumptions about the research project would it highlight, or create? What, in your area of research, seems natural, obvious, self-evident, or universal? What value would it bring to ask how these things have come to be accepted as given/the norm?

 ibid.  ibid. 78   B Bix, Jurisprudence: Theory and Context (London, Sweet and Maxwell, 2006) ch 19. 79   I McLeod, Legal Theory (London, Macmillan, 1999) ch 9. 80   C Douzinas and A Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Oxford, Hart Publishing, 2005) Part 4. 81   R Devetek, ‘Poststructuralism’ in S Burchill et al, Theories of International Relations (Basingstoke, Palgrave Macmillan, 2009) 183, 183. Here Devetek is talking about anxiety over the labels ‘postmodernism’ and ‘poststructuralism’. 76 77



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A Marxism A Marxist approach to EU or international law sees law as a system by which the interests of the dominant class are safeguarded. In a capitalist society, the dominant class (the bourgeoisie) are those who own the means of production. Law’s role is to preserve the power relations between the bourgeoisie and the proletariat (those who sell their labour within the capitalist society). Unlike liberal and neo-liberal approaches combining law and economics (going back to Adam Smith’s work, such as The Wealth of Nations, although he was not uncritical of aspects of capitalism), Marxist scholarship is overtly and avowedly critical in its approach, seeing law and the market as combining to sustain oppressive power relationships. Marxist scholarship has developed since its early stage, and many of the critiques of early ‘vulgar’ Marxism have been taken account of by modern or neoMarxist scholars. While Marxism has not enjoyed much prominence in contemporary EU scholarship (it has had something of a revival amongst some international lawyers), (neo-)Marxist approaches to international relations and EU studies have continued to be developed throughout the 1980s, 1990s, and 2000s. Such approaches (along with other critical approaches, such as feminism, queer theory and Critical theory) challenge more mainstream scholarship to ‘open its eyes’ to the hidden ways in which law both represents and is made up of power relations. As readers work through these approaches, you might wish to think about whether you are interested in the way law empowers or disempowers certain groups or individuals. Why might one find these questions interesting or important? What kinds of research questions can these approaches support?

READING

International BS Chimni, ‘An Outline of a Marxist Course on Public International Law’ (2004) 17 Leiden Journal of International Law 1–30. EU G Peebles, ‘“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law’ (1997) 22 Law and Social Inquiry 581– 618. Chimni’s article begins with the assertion that alternative narratives to ‘mainstream international law scholarship’ (based in positivism) are needed, because ‘growing international legal regulation is translating into injustice for the subaltern

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classes in both the third and first world’.82 Although Chimni has some sympathies towards positivism, in preference to critical approaches that assert the radical indeterminacy of law, this suggests a quite different research project to that of positivism or natural law (which also underlines the fact, already noted, that scholars can do different things in different studies). Chimni outlines the four features of mainstream international law: positivism; a historical narrative of progress; assumed objectivity in the system of rules; and lack of recognition of structural constraints. Because ‘the most influential vehicle’ in sustaining and disseminating mainstream international law is the textbook, this article outlines what an alternative textbook on contemporary international law which ‘speaks the truth to power’ would look like.83 Chimni’s contention is that contemporary international law is being transformed from ‘bourgeois democratic’ to ‘bourgeois imperialist’ international law because of changes to the world’s economic and political situation, which have led to the emergence of a transnational capitalist class, which owns transnational capital, that is, the ‘leading worldwide means of production as embodied principally in transnational corporations and private financial institutions’.84 Although their influence is mediated through sovereign states and non-state entities, essentially international law sustains and promotes the interests of this transnational capitalist class. Bourgeois imperialist international law (i) limits the autonomy of dependent or dominated states by transferring power to international institutions; (ii) facilitates and safeguards the free movement of capital; (iii) creates and protects intellectual property rights; and (iv) legitimises greater use of force to protect the global system of production. According to Chimni, a critical Marxist international law textbook would contain familiar headings: sources of international law (treaties, customary international law, soft law); the relationship between international law and municipal law; the jurisdiction of states; international economic law; international environmental law; international human rights law; the international law of state responsibility; international law and the use of force. However, Chimni shows how the content of such a textbook would differ significantly from that of mainstream (usually considered positivist) international law scholarship. It would for instance include: an attention to extra-textual expressions of power relationships (the ‘quiet coercion’ of non-dominant states), especially as embodied in class; the disaggregation of ‘the state’ as an entity with singular interests; a focus on deliberative democracy and distributive justice; and an attention to history, especially postcolonial history. Chimni suggests that the critiques of mainstream international law (known as ‘new approaches to international law’ or NAIL), Third World or postcolonial international lawyers (‘Third World Approaches to International Law’ or TWAIL), feminist approaches to international law 82   BS Chimni, ‘An Outline of a Marxist Course on Public International Law’ (2004) 17 Leiden Journal of International Law 1–30, 1. 83   ibid 2–3. 84   ibid 8.



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(FemAIL) and Marxist scholars get together to write such textbooks. In doing so, the research questions being asked would have to be answered with a sociological methodology. The premise of Peebles’ 1997 article is that if we look at EU law (treaties and case law of the ECJ) from a Marxist perspective, we are alerted to features that are otherwise ‘hidden’ by the very nature of the law: the EU’s Single European Market project (like any system of governance/state system/legal system) is ‘structurally coded’ in favour of capital (although it is not as simple as the state, here the EU, being exclusively concerned with ‘capital’s self-valorization’). Peebles shows, by focusing on EU law from a Marxist perspective, first, that the EU’s treaties favour capital’s self-valorisation (he discusses the Grogan and ERT cases to demonstrate this). Second, in so doing, they transform human beings into personified reifications of commodities (building on Grogan and ERT, he employs a discussion of Levin case to demonstrate this). Third, in reducing human beings to their economic roles, the treaties have forced the ECJ to minimise the consequences of this objectification by turning as many forms of human interaction as possible into economic ones. Finally, this phenomenon means that the ECJ supports the permeation of EU law into many previously ‘non-economic’ areas. Peebles concludes that a Marxist analysis uncovers what is otherwise hidden within the EU’s legal order/system of governance, that is, that it is a ‘society based on the commodity form’.85 ‘The treaties concern themselves with the relation between things, not people; they are, in short, commodity fetishism enshrined in law.’86 You will see immediately that this type of research project asks quite different questions (and comes up with different analyses) from those based on either natural law, legal positivism or the modern approaches. To illustrate this, you may find it interesting and useful to contrast Peebles with the well-known (although not always well-liked) Coppell and O’Neill piece also on the ECJ.87

B Feminism Feminist critiques of the law have sought to expose the hidden implications of law’s apparent gender neutrality. To use the words of Carol Smart, ‘[i]t is the work of feminism to deconstruct the naturalistic, gender-blind discourse of law’.88 There is, notably, no singular ‘feminist critique’: feminist approaches, rather, to legal scholarship are many and varied. As such, feminism, or perhaps more accurately, feminist perspectives, do more than ‘ask the woman question’; rather, they observe law as a social construct through a gendered lens, introducing gender as a 85   G Peebles, ‘“A Very Eden of the Innate Rights of Man”? A Marxist Look at the European Union Treaties and Case Law’ (1998) Law and Social Inquiry 581–618, 614. 86  ibid. 87   J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 12 Legal Studies 227–45. 88   C Smart, Feminism and the Power of Law (London, Routledge, 1989) 88.

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relevant analytical tool for understanding power relations at work within social constructions (here the law, and its claim to have access to truth and justice). Feminist perspectives thereby seek to expose the oppression and domination (wrongs that we all, regardless of sex or gender, suffer – although the particular experiences of ‘women’ illustrate this suffering) that result from law’s claim to impartiality and to being objective. As can be seen, there are links to Marxism, and other critical approaches. Both of the chosen pieces describe the ‘feminist method’ as ‘listening to women’s voices’. The implication is twofold. First, this version of the feminist method is one that implies that women have a different ‘voice’89 – a distinctive way of reasoning, thinking or solving problems – or perhaps have different things to say, or both. (This position is by no means agreed among feminists.)90 Second, this method implies that we as scholars (as well as political actors) will learn much by listening to the accounts that women give of their experiences of disadvantage, and the role(s) that law plays in perpetuating (or alleviating) those experiences.

READING

International H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613–45. EU J Shaw, ‘Importing gender: the challenge of feminism and the analysis of the EU legal order’ (2000) 7 Journal of European Public Policy 406–31. Hilary Charlesworth, Christine Chinkin and Shelley Wright’s article has been selected as it is the piece that brought feminist approaches to international law into the mainstream. It gives a broad overview of the implications of feminist approaches for international law, arguing that ‘the international legal order is virtually impervious to the voices of women’.91 This is for two related reasons: the organisational structure of international law and the normative structures of international law. So, the subjects of international law are states (patriarchal structures which exclude women from elite positions and decision-making roles, 89  See further C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Massachusetts, Harvard University Press, 1990). 90   See for instance, C MacKinnon, Toward A Feminist Theory of the State (Massachusetts, Harvard University Press, 1991). 91   H Charlesworth, C Chinkin and S Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613–45, 621.



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and are based on the legitimation of a concentration of power in an elite and the use of force to keep that control) and to a lesser extent, although increasingly, international organisations (whose structures replicate those of states). Both of these subjects make women invisible and silence their voices. International law norms directed at individuals are assumed to be universally applicable and thus gender neutral. However, the dichotomous assumptions underpinning this notion (such as public/private and law/morality) have the effect of allowing issues of particular relevance to women, such as domestic violence or trafficking in women, to be ignored or undermined. Other scholars have taken this work further (for example, Karen Knop), but it remains relevant today.92 Jo Shaw’s article (or the perhaps easier-to-read alternative Shaw chapter in the further reading, below) uses the feminist approach of ‘importing gender’ (a social constructivist strand of feminism) to identify key areas of EU law in need of further analysis. Shaw asks what it means to ‘import gender’ into EU law – explaining this as ‘the endeavour to uncover the (hidden?) “gendered character” of aspects of the legal order, legal actors and legal processes of the EU’.93 The article goes on to consider the types of questions/approaches with which a gendered analysis of EU law might be concerned. What, if anything, Shaw asks, demands a feminist legal theory of the EU? Shaw distinguishes between ‘gender’ and ‘feminism’, pointing out that ‘analyses problematising the question of “gender” do not necessarily have to be “feminist”’94 – this is a useful point to bear in mind when considering work on sex, sexuality and gender. The article notes that, in the UK, feminist arguments have already influenced legal developments through litigation (such as equal opportunities claims by claimants or as expert advisors in defences related to ‘battered woman’ syndrome). So far, there have been fewer feminist interventions in EU law, which appears a ‘rather curious case’,95 as it is seen as an autonomous or alternative legal order separate from national and international law – although sex discrimination law offers a prominent exception.96 The article considers why this might be and suggests that in part theoretical analyses of EU law have been slow, together with the fact that early feminist work tended to accept ‘rather too easily the given categories of EU law as the basis for analysis, which has made the transgression of boundaries between social and economic law or between the free movement of persons and provisions on equality and non-discrimination more difficult to achieve’.97 92   See C Chinkin, H Charlesworth and S Wright, ‘Feminist Approaches to International Law’ in D Buss and A Manji (eds), International Law: Modern Feminist Approaches (Oxford, Hart Publishing, 2005) 17. 93   J Shaw, ‘Importing gender: the challenge of feminism and the analysis of the EU legal order’ (2000) 7 Journal of European Public Policy 406–31, 414. 94   ibid 412. 95   ibid 407. 96   For an early example, see E Ellis, EC Sex Equality Law, 1st edn (Oxford, Oxford University Press, 1991). See also C McGlynn, ‘EC Sex Equality Law: Towards a Human Rights Foundation’ in T Hervey and D O’Keeffe (eds), Sex Equality Law and the European Union (Chichester, John Wiley and Sons, 1996). 97   Shaw, n 94 above, 408.

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FURTHER READING

International D Buss et al, ‘Introduction to “Sexual Movements and Gendered Boundaries: Legal Negotiations of the Global and the Local”’ (2005) 14 Social and Legal Studies 5. D Otto, ‘Lost in translation: re-scripting the sexed subjects of international human rights law’ in A Orford (ed), International Law and Its Others (Cambridge, Cambridge University Press, 2006). EU A Masselot, ‘The State of Gender Equality Law in the EU’ (2007) 13 European Law Journal 152–68. S Millns, ‘Gender Equality, Citizenship and the EU’s Constitutional Future’ (2007) 13 European Law Journal 218–37. J Shaw, ‘Law, Gender and the Internal Market’ in T Hervey and D O’Keeffe (eds), Sex Equality Law in the European Union (Chichester, Wiley, 1996) (an alternative, easier EU reading). Shaw’s article is one of the earliest pieces of EU legal scholarship to apply feminist methods to a core, ‘economic’ area of EU law, the law of the internal market. This article was written at a time when several scholars working on EU law (Holly Cullen, Tamara Hervey; Nicola Lacey; Gillian More) were considering wider implications of feminist methods for EU law, and brings together several of these strands. It also coincides with a heightened interest in applying feminist methods to national law, at least in the UK context (reflected in the establishment of the journal Feminist Legal Studies).

C  Queer Theory A related branch of critical theory is ‘queer theory’ which, although analogous in many respects, differs from feminist approaches in that it problematises the categorisation of ‘gender’ and ‘sexuality’ as well. Judith Butler, author of what many would describe as a founding text of queer theory, Gender Trouble,98 explains that her concern has been to criticise the heterosexual assumption made in feminist [legal] theory, which tends to restrict the meaning of ‘gender’ to notions of masculinity and femininity. Such norms, according to queer theory’s position, set up exclusionary gender norms within feminism, often with homophobic consequences. In other words, (in some of its forms) queer theory challenges feminism   J Butler, Gender Trouble: Feminism and the Subversion of Identity (London, Routledge, 1999).

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as the theory of sexual repression; it asks (amongst other things) if there is something that need not be referred to as feminism; that ‘takes a break from’ feminism in an attempt to escape the binary nature of gender and sexuality.99

READING

International A Gross, ‘Review Essay: Sex, Love and Marriage: Questioning Gender and Sexuality Rights in International Law’ (2008) 21 Leiden Journal of International Law 235–53. EU N J Beger, ‘Queer Readings of Europe: Gender Identity, Sexual Orientation and the (Im)potency of Rights Politics at the European Court of Justice’ (2000) 9 Social and Legal Studies 249–70. Aeyal Gross’s article is a useful overview of current thinking in, and challenges to, feminist and queer legal theory. It reviews both the book noted in the title, edited by Nicholas Bamforth, and also Karen Knop’s Gender and Human Rights (referred to in the section on Feminism). The review discusses several chapters from each book and also contains some useful criticism on the methodologies of queer theory. Gross outlines the different development of and within gender and sex rights, and views the gender and sexuality rights projects as often being in conflict rather than convergence,100 stemming from a problematic notion of universality embodied in the notion of ‘human’ rights.101 Gross also draws attention to Nicola Lacey’s chapter in Gender and Human Rights, ‘Feminist Legal Theory and the Rights of Women’,102 which notes that the ‘paradox of the feminist critique . . . as [a] . . . critique of liberalism, critical of rights and their individualistic . . . nature, but . . . turning to Human Rights as vehicles for securing justice, autonomy and equality for women’.103 Janet Halley’s chapter in Gender and Human Rights (see the further reading below) suggests ‘suspending gender analysis when exploring questions of sexuality’,104 an idea which might help resolve some of the problems noted by Nicola Lacey – to take a break from feminism would help understand the ‘ways in 99   See Janet Halley, ‘Take a Break from Feminism?’ in Karen Knop (ed), Gender and Human Rights (Oxford, Oxford University Press, 2004). 100   A Gross, ‘Review Essay: Sex, Love and Marriage: Questioning Gender and Sexuality Rights in international law’ (2008) 21 Leiden Journal of International Law 235–53, 238. 101   ibid 239, discussing Judith Butler’s chapter in Sex Rights. 102   ibid 240. 103  ibid. 104   ibid 242.

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which its concept of injury might be helping to reproduce the very subordination it is describing’.105 Gross concludes his review with a discussion of the Yogyakarta Principles of the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, which he views as an example of the reinforcement of the binary nature of gender and sexuality identified by the reviewed authors: ‘operating within the liberal identity rights paradigm may leave us within the current sex/gender system, with its hierarchies and privileges’.106 Nico J Beger undertakes a ‘queer reading’ of two prominent court cases of the ECJ: the Grant case mentioned above and P v S107 (which concerned sex discrimination in the employment of transsexuals).108 Beger aims in effect to re-read these cases and through doing so to disrupt the seeming coherence of gender and sexuality. He is thereby challenging the very meaning of these genres, to thereby provide fundamental critiques of ‘sex’, ‘gender’ and ‘identity’ as the foundations for rights battles. Through the ‘queer theory looking glass’,109 Beger sees the Court’s decision in Grant as maintaining and defending the exclusion of homosexual men and women as ‘Other’, or the ‘deviant subject’, not worthy of protection. Beger argues that the Court first acknowledged the homosexual identity and made it intelligible, then excluded it by maintaining the essence of a ‘heteronormative binary gender system’.110 The exclusion happened because the ECJ, according to Beger’s queer reading of the case law, could not deal with a multiplicity of identities, sexualities and discriminations that do not fit into predetermined boxes. So Lisa Grant’s lesbian identity had to be excluded because, in the interests of maintaining a culturally dominant belief system, it could not be allowed to infiltrate the definition of sex discrimination. According to the system, there are two natural sexes and they result in individuals desiring a normal heterosexual gender identity. Beger is asking interesting, critical questions – in this case the methodology means these are Foucault-inspired, ‘how’ questions (note the overlap with critical theory, discussed above).

FURTHER READING

J Halley, ‘Take a Break from Feminism?’ in K Knop (ed), Gender and Human Rights (Oxford, Oxford University Press, 2004). C Stychin, Governing Sexuality:  The Changing Politics of Citizenship and Law Reform (Oxford, Hart Publishing, 2003).   ibid 242.   ibid 253. 107   Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143. 108   N Beger, ‘Queer Readings of Europe: Gender Identity, Sexual Orientation and the (Im)potency of Rights Politics at the European Court of Justice’ (2000) 9 Social and Legal Studies 249. 109   ibid 258. 110  ibid 264. 105 106



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D  Postcolonial Theory Postcolonial theories are approaches particularly interested in the ways in which current arrangements can be critiqued from the point of view that they reflect, and maintain, colonial relations, and in particular, are complicit in subordinating, or silencing peoples from the Global ‘South’ and ‘Third’ World.111 Perhaps unsurprisingly, many scholars working within this area draw upon critical theory (especially its interest in the voices of the silenced ‘Other’) and Marxism (and its concentration on economic, as opposed to violent) oppression. Some of those working in the area would openly identify themselves as Marxist or critical scholars (BS Chimni is an example of the former; China Miéville, the latter (or indeed both), others would eschew the terms. There have been a number of notable works in international law which come from this area of scholarship. Three monographs, in particular, stand out. The first is BS Chimni’s International Law and World Order: A Critique of Contemporary Approaches,112 which is a sophisticated reading of a number of theories of international law from a South/Marxist perspective, and represents probably the best piece of work of its type from the period. Next is Balakrishnan Rajagopal’s International Law From Below: Development, Social Movements and Third World Resistance.113 This work, which relies inter alia on Marxist scholars such as Antonio Gramsci, postcolonial scholars such as Franz Fanon and is influenced by the work of Michel Foucault, seeks to show how resistance to certain international development activities, rooted in the colonial/mandatory period, have provided resistance to certain aspects of international law and institutions, but also used the language of international law in its discourse. This particular approach means that the book is informed by examining particular institutions, as well as local networks, local effects and local practices. This is a good example of the way in which the theoretical approach chosen not only explains the research questions pursued, but also informs the way that the research is done (the method) and the relevant data. One of the most sophisticated monographs in this area is by Anthony Anghie,114 which subjects international law (and international lawyers) from periods beginning with the early naturalist era to today to a re-reading which emphasises the extent to which international law, and lawyers, were complicit in the colonial project. There is little postcolonial literature in EU law – see, however, Patricia Tuitt’s Race, Law and Resistance115 and Joanne Scott’s Development Dilemmas in the 111   See Karin Mickelson on the term ‘Third World’ and the degree of difference or coherence in ‘Third World’ approaches: K Mickelson, ‘Rhetoric and Rage: third world voices in international legal discourse’ (1998) 16 Wisconsin International Law Journal 353–419. 112   BS Chimni, International Law and World Order: A Critique of Contemporary Approaches (London/ Delhi, Sage, 1991). 113   B Rajagopal, International Law From Below: Development, Social Movements and Third World Resistance (Cambridge, Cambridge University Press, 2003). 114   A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, Cambridge University Press, 2005). 115   P Tuitt, Race, Law and Resistance (London, Glasshouse Press, 2004).

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European Community: Rethinking Regional Development Policy.116 The former describes how ‘the new European space . . . is revealing of a new configuration in the uneven struggle for territory and associated rights that characterised the relation between the colonial discoverers and the colonised. This is expressed in the relation of the “new” Europe with its asylum-seekers and its resident non-nationals’.117 The latter applies a postcolonial-style critique internally to the EU’s regional and environmental law and policies. We have, however, chosen as the designated reading a chapter from Roxanne Lynn Doty’s Imperial Encounters. This may seem an odd choice given that the EU/EU law is not the focus of Doty’s analysis; indeed, she seems only to mention the EU, or ‘Europe’, in passing. However, Doty clearly articulates the advantages of her particular critical approach and we feel her methodology can be applied in the context of the ‘European’, or indeed the ‘international’.

READING

International Anthony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5 Social & Legal Studies 321–36. EU RL Doty, Imperial Encounters: The Politics of Representation in North-South Relations (Minneapolis, University of Minnesota Press, 1996) chapter six, ‘Foreign Aid, Democracy and Human Rights’. Anghie’s piece looks at the way in which Vitoria’s often lauded universalism, which granted rights to the indigenous Americans at the time of Spanish colonial expansion, also constructed a regime in which they could only appear as violators of the law of nature, and thus provide legal justification for Spanish policies. Its relevance to more modern scholarship comes from the way in which various cultural forms, including rules of law, are claimed to be universal, and violated by those who have not, in fact consented to them. This may be, for example, in relation to claims that certain norms amount to customary international law. Doty’s approach in Imperial Encounters is distinctly postcolonial in that what she is doing is questioning the colonial era and the supposedly ‘enlightened claim of Western rationality, culture and science to universality’.118 She uses the themes of representation, identity and power to do so. In chapter six of Imperial Encounters, 116   J Scott, Development Dilemmas in the European Community: Rethinking Regional Development Policy (Buckingham, Open University Press, 1995). 117   ibid 55. 118  RL Doty, Imperial Encounters: The Politics of Representation in North-South Relations (Minneapolis, University of Minnesota Press, 1996) 23.



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Doty examines the interrelated issues of ‘foreign aid, democracy and human rights’ as sites where North and South collide and wherein global identity construction occurs and reoccurs. Doty puts forward the proposition that ‘promoting human rights became a practice whereby the United States re-presented itself as a global hegemonic subject’, as a ‘world power capable of exercising moral leadership’.119 We emphasised earlier that this is not an EU-focused piece; however, Doty makes reference to the ‘US and the European Community’ (or ‘Europe’), and these references highlight that her approach can be applied to any global ‘system’.120 Imperial Encounters succinctly addresses the question of why this approach. ‘What is important’, Doty states, is not the intention or responsibility of those who enable the exercise of Western power, but ‘the taken-for-granted assumptions and the naturalized categories of knowledge embedded in and produced within the context of the promotion of Western values’.121 Thus, whilst the propositions that Doty is making may not be a ‘startling revelation’122 what is important is how they have come about – Doty is not suggesting that democracy and human rights ought not to be promoted, but that their pursuit requires ‘careful and critical analyses’ that call attention to the meanings and identities that are constructed in the process of promoting democracy and human rights, and the meanings that they themselves are given.123 Being aware of these ‘representations’ is a distinct advantage of a postcolonial approach. Note that Doty writes in the context of international relations rather than law. Her approach is also distinctly Foucauldian. The piece thus also shows the overlap between approaches, a theme we have tried to highlight throughout these materials.

FURTHER READING

International A Orford, ‘Muscular Humanitarianism: Reading the Narratives of the New Interventionism’ (1999) 10 European Journal of International Law 679–711. M Mutua, Human Rights: A Political and Cultural Critique (Philadelphia, University of Pennsylvania Press, 2002).

E  Critical Theory It is difficult to articulate a single, neat definition of what is a broad spectrum of ‘critical theory’ (note the small ‘c’). Critical theory can provide an umbrella term   ibid 137.   ibid 138–39. 121   ibid 24. 122   ibid 143. 123   ibid 144. 119 120

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for – but does not exclusively refer to – either or all of the following: ‘Critical theory’ (note the capital ‘C’), Critical Legal Studies, and poststructuralism. First, Critical theory (capital ‘C’) refers to a distinct body of thought associated with the Frankfurt School, wherein the ‘Critical’ component consists of developments on Marxist thought, heavily influenced by the critical philosophies of Kant, Hegel, Weber and Freud. Proponents of Critical theory include Max Horkheimer, Theodor Adorno, Walter Benjamin, and Jürgen Habermas. Second, Critical Legal Studies refers to a separate method associated, inter alia, with the Harvard Law School, which followed on from the American realist movement and draws on elements from the Frankfurt School and on poststucturalism. Proponents of Critical Legal Studies include David and Duncan Kennedy, Mark Tushnet and Roberto Unger. Third, poststructuralism refers, broadly speaking, to a method which rejects a structured, logical and internally consistent picture of society and law – as painted by positivism, for instance. It is commonly associated with Jacques Derrida and at times Michel Foucault. We equate the term ‘critical theory’ with more generally with ‘critique’. The object of a critique is ‘not a matter of saying that things are not right as they are. It is a matter of pointing out on what kinds of assumptions, what kinds of familiar, unchallenged, unconsidered modes of thought the practices that we accept rest’ (emphasis added).124 This can of course be applied to ‘the practices of ’ EU and international law. The examples and comment that we provide here refer largely to the work of Michel Foucault. Foucault is difficult to place because he vehemently resisted labels – preferring instead to be the ‘masked philosopher’ and famously asserting, ‘Do not ask who I am and do not ask me to remain the same’.125 The presence of a section on Foucault is intended to be by way of example rather than definitive of critical approaches. It is interesting to note that Foucault is not actually widely used in law as a discipline. However, Ben Golder and Peter Fitzpatrick have recently made an important and original contribution to the debate on Foucault and law, offering their own interpretation of Foucault’s law.126 Moreover, the Critical Legal Conference’s annual meeting in 2009 was entitled ‘Genealogies: Excavating Legal Modernity’, which intended to draw on the revived interest in scholarship reviewing Foucault’s deliberations on law and in particular his studies on governmentality.127 The further reading list contains examples of literature that uses other influences besides Foucauldian – for instance 124   M Foucault, Politics Philosophy and Culture (L Kritzman ed; A Sheridan trs, Abingdon, Routledge, 1988) 154. 125   M Foucault, The Archeology of Knowledge (Abingdon, Routledge, 2005) 19. 126   B Golder and P Fitzpatrick, Foucault’s Law (Abingdon, Routledge, 2009). For the earlier major piece of literature in the area see A Hunt and G Wickham, Foucault and the Law: Towards a Sociology of Law as Governance (London, Pluto Press, 1994). 127   Critical Legal Conference 2009, University of Leicester, 11–13 September 2009, www.le.ac.uk/la/ clc2009/index.html accessed 25 July 2010. Note also the contribution of A Hunt and G Wickham, Foucault and the Law: Towards a Sociology of Law as Governance (London, Pluto Press, 1994) 75. Note the inclusion of the following chapter in a legal theory textbook: A Barron, ‘Foucault and Law’ in J Penner et al (eds), Jurisprudence and Legal Theory: Commentary and Materials (Oxford, Oxford University Press, 2005) 955.



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Martti Koskenniemi’s work has a strong Derridean influence. We thus include examples in the further reading of work that attracts a more deliberate ‘Critical Legal Studies’ label (see also David Kennedy, for instance).

READING

International L Hammer, A Foucauldian Approach to International Law: Descriptive Thoughts for Normative Issues (Aldershot, Ashgate, 2007) chapter two. EU C Stychin, Governing Sexuality: The Changing Politics of Citizenship and Law Reform (Oxford, Hart Publishing, 2003) chapter one. Leonard Hammer’s A Foucauldian Approach to International Law attempts a ‘new line of thought’128 or a ‘transformative understanding’129 of international law by undertaking a Foucauldian reading of the problems posed therein. Chapter two is particularly useful for our purposes since Hammer explicitly articulates the methodology he is using. The chapter outlines current approaches to international law, where Hammer cites a number of international legal theorists including Koskenniemi and Kennedy, and then explains why an alternative angle is needed. Hammer uses a Foucauldian understanding of power to suggest that the international legal system can be reconceived in terms of the actors that have risen to the fore in international law, rather than through a continued focus on outmoded notions of state power. He outlines what is meant by a Foucauldian understanding of power .130 Readers may also find it useful to read an article by Ben Golder reviewing Hammer’s monograph.131 Golder’s article is helpful in that it reviews the way in which Hammer ‘applies’ Foucault to international law – that is, Golder is speaking directly of using Foucault as a critical approach. Moreover, Golder’s article reviews the application of Foucault in law as a discipline more generally, providing a useful overview of the use of this particular type of critique/critical theory in law. Carl Stychin’s Governing Sexuality illustrates the crossover between critical theory, queer theory and feminism(s). The book examines the way in which sexuality is governed through law in the EU in the face of liberal and progressive law reform 128   L Hammer, A Foucauldian Approach to International Law: Descriptive Thoughts for Normative Issues (Aldershot, Ashgate, 2007) 2. 129   ibid 9. 130   ibid 23–25. 131   B Golder, ‘Foucault and the Incompletion of Law’ (2008) 21 Leiden Journal of International Law 747–63.

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regarding the notion of citizenship. His key theoretical claims are tested through a series of case studies that form the chapters of the book (for example, chapter four is a critical analysis of the ECJ’s ruling in Grant v South West Trains) – demonstrating that critical theory can be ‘actual analysis’ and does not have to be mere assertion or criticism as its critics suggest. Stychin’s key theoretical claim stems from Foucault’s conception of power – that law acts as a force for discipline of the self; of normalisation. Discipline allows for the regulation of individual identities and behaviours. Chapter one introduces the two different identities within the language of citizenship: the sexual citizen, emerging from sexual identity politics, and the European citizen. Stychin considers both the potential and the limitations of sexual citizenship, maintaining that citizenship has the potential to be rearticulated. The analysis leading up to this conclusion explores citizenship’s binary nature; the citizen can on the one hand be conceived of as self-created and existing prior to the granting of the status of citizenship. On the other, citizenship is ‘the creation of techniques of social discipline’. Here we see the Foucauldianinfluenced claim that disciplinary power is inevitably produced when identities become politicised. Stychin is thus interested in asking the ‘how’ question – how law is used. He moves on – having addressed the issue of whether citizenship disciplines or whether it can serve as a means of resistance – to the question of how citizenship discourse can be deployed, an essentially political question that necessitates continued exploration of how law is used.

FURTHER READING

International D Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, Princeton University Press, 2004). M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge, Cambridge University Press, 2005) Introduction. M Koskenniemi, ‘The Politics of International Law’ (1990–91) 1 European Journal of International Law 4–32. M Koskeniemmi, ‘The Politics of International Law: 20 years later’ (2009) 20 European Journal of International Law 7–19. I Scobbie, ‘Towards the Elimination of International Law: Some Radical Scepticism About Sceptical Radicalism’ (1990) 61 British Year Book of International Law 339. EU J Derrida, The Other Heading: Reflections on Today’s Europe (P Brault and M Naas, tr, Bloomington, Indiana University Press, 1992).



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K Sideri, Law’s Practical Wisdom: The Theory and Practice of Law Making in New Governance Structures in the European Union (Aldershot, Ashgate 2007). A Williams, EU Human Rights Policies: A Study in Irony (Oxford, Oxford University Press, 2005).

6 Extensions and Negations II ‘Law and’ The final six approaches we describe, in this third part of our list, share the title ‘Law and’. They are thus overtly interdisciplinary. That is not to say that the above approaches were not interdisciplinary or that they cannot be, for instance, critical theory scholars writing in law may take influence from critical theory scholars in political science, or international relations (we have, for example, made reference to Judith Butler, Roxanne Lynn Doty, Maja Zehfuss and Alexander Wendt in the above sections – none of whom are lawyers but present methodologies that can be applied to the study of law). In fact, chapters five and six share the theme of interdisciplinarity – it is simply more obvious in the ‘law and’ approaches. With interdisciplinary work, care needs to be taken over how effectively concepts from one discipline can be transferred to another. For instance, ‘citizenship’ may have quite different meanings and connotations in law, political science, and sociology. Some scholars – systems theorists – have argued that these problems with translation result from an underlying feature of communication.1 They argue that law, economics, politics, etc are all functionally differentiated subsystems of society comprised of communications around a specific binary code. The legal system, for example, is comprised of all communications relating to the code lawful/unlawful. As a result, meanings generated within the legal system cannot be effectively translated into communications within another system such as the economic system (which is structured around the distinction between profit and loss). This calls into question the feasibility of adopting non-legal norms (such as the promotion of economic stability) in order to increase the relevance of legal regulation. It remains the case, however, that legal scholars can engage in external observation of the operations of the legal system and in so doing observe the ways in which the legal and other systems fail to communicate with each other as a result of their mutual blindness. Other scholars accept that ‘law and’ approaches carry risks and need to be approached with care, but do not accept that it cannot be done. We would suggest that the best interdisciplinary work engages properly with both disciplines and 1   See N Luhmann, Law as a Social System (Oxford, Oxford University Press, 2004); G Teubner, Law as an Autopoietic System (Oxford, Blackwell, 1993).



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does not involve, for instance, law with the addition of a little amateur economic or political theory. We also note that it is important to think about what is the theory/methodology of the law in the ‘law and’ part of interdisciplinary work. Usually it is positivist, but it could be another approach (for example, see Bettina Lange’s discourse analysis work, listed under ‘Law and Sociology’, below). A word of caution: different disciplines have different approaches to academic discourse. Lawyers who present their work at events organised by political scientists, or sociologists, may be surprised by the extent to which those disciplines seem to be overly concerned with methods and methodology, and may feel excluded by the disciplinary jargon. In part, as Graínne de Búrca explains (see below), this is because the research questions pursued by lawyers tend to be different in quality to those pursued by other social scientists. With the significant exception of socio-legal studies (which can encompass a range of approaches we have mentioned above, for example, critical approaches, feminism, postcolonial studies) legal scholarship is not generally speaking about explaining change in the social or political world, but about ‘the exposition and analysis of legal doctrine (legal “policy”, legislation and case law alike), or with legal theory (debate about the fundamental nature of law)’.2 De Búrca perspicaciously sums up the resultant failure to communicate: To the political scientist, legal scholarship often appears to be arid, technical, atheoretical (apart from the ‘metatheoretical’ branches of legal and constitutional theory), full of unstated or unproven assumptions, lacking empirical support, and seemingly disinterested in the actual dynamics of political and social change. To the lawyer, political science scholarship often appears to be obsessed with methodology, jargonistic and – in particular when it engages with law – remarkably banal, in that pages are spent demonstrating a proposition which lawyers take to be axiomatic (such as that ‘courts matter’ or ‘judges have some autonomy’).3

None of this is intended to put readers off interdisciplinary approaches. We are interested in interdisciplinary research and find it both rewarding and challenging. Indeed such approaches are frequently both innovative and able to overcome stalemates which occur in debates taking place with reference to only one discipline. The note of caution is simply to say that good interdisciplinarism is not the same as disciplinary tourism, and negligently borrowing terms from other disciplines or assuming that other disciplines always have ready-made answers does not advance scholarship, but more often than not, contributes only to misunderstanding, both inside, and outside legal scholarship. As with the other readings, we would encourage readers to work their way through the readings, considering the questions designed to help with ‘reading for methodological understanding’, which are:

2   G de Búrca, ‘Rethinking Law in Neofunctionalist Theory’ (2005) 12 Journal of European Public Policy 310–26, 314. 3  ibid.

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What is/are the research question(s) the author asks in this piece? Why should a reader or publisher be interested? What sources/data were used? How were they used? What assumptions does the author make about law and legal research? What type of research questions can this approach answer? What are the benefits and drawbacks of this approach? What would the approach look like, if applied in the substantive area of your PhD?

I  Law and International Relations/Political Science Law and international relations (IR) or law and political science approaches to the study of EU or international law seek to bring together understandings of the EU or international order as a legal system and as a political system. Like the other ‘law and’ approaches, the category is really too large to gain a full understanding of in a short time, as there are many different theoretical/methodological approaches in the study of international relations and political science. We ought to mention that although we group IR and political science together, there is recognised opinion as to these being separate fields; there is also considerable debate as to whether IR is a sub-discipline of political science. With respect to IR, Scott Burchill et al identify the following approaches: liberalism; realism; rationalism; the English School; Marxism; historical sociology; critical theory; poststructuralism; constructivism; feminism and green politics.4 With respect to political science, David Marsh and Gerry Stoker make a distinction between ‘approaches’ and ‘methods’ (note the definitions we gave in the introductory pages).5 Under approaches, Marsh and Stoker identify: behaviouralism; rational choice; institutionalism; feminism; interpretative theory; Marxism; and normative theory. One way to categorise different political science approaches to EU studies is offered by Ian Bache, Andrew George and Simon Bulmer.6 They suggest a threefold division. First, IR theories of European integration (neofunctionalism, associated with Ernst Haas; and liberal intergovernmentalism, associated with Andrew Moravcsik) essentially seek to explain why the European integration process has unfolded as it has and to predict its future trajectory. Second, theories of EU governance (the variants of new institutionalism; policy networks and epistemic communities; multi-level governance) seek to explain the EU as a political system. As such, they draw on methods from comparative and domestic political science. And third, critical perspectives (including social constructivism; the idea of the EU as a discursive construct; (neo)Marxism; and (neo)liberalism) move away   S Burchill et al, Theories of International Relations, 4th edn (Basingstoke, Palgrave, 2009).   D Marsh and G Stoker, Theory and Methods in Political Science (Basingstoke, Palgrave, 2002). 6  I Bache, A George and S Bulmer, Politics in the European Union, 2nd edn (Oxford, Oxford University Press, 2010). 4 5



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from the rationalist basis of the other two approaches, and have a stronger emphasis on uncovering hidden sources of power, including the role of ideas and of social forces in creating and sustaining power relationships. Again, there are strong overlaps with some of the categories in the list above, in particular Marxism, liberalism, governance and critical approaches. We have chosen four representative readings, embodying essentially just two types of IR/political science theory, those of liberalism and constructivism (although the readings themselves also make reference to other types of IR theory).

A Liberalism

READING

International A-M Slaughter-Burley, ‘International Law and International Relations Theory: A Dual Agenda’ (1993) 87 American Journal of International Law 205–39. EU D Wincott, ‘Political Theory, Law and European Union’ in J Shaw and G More (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995). Anne-Marie Slaughter-Burley, like Daniel Wincott in the EU piece, takes the view that international lawyers and IR scholars should learn from one another. Slaughter-Burley also sees institutionalism as a possible approach for such interdisciplinary work. She suggests various areas where collaboration might shed light on puzzles such as distinguishing legal regimes from non-legal regimes; questions of organisational design; compliance; and international ethics. However, she suggests that ‘liberal international relations theory’ provides a more promising approach to bring together scholarship on international law and political science scholarship on international relations. This approach suggests an agenda focusing upon: (i) comparative constitutional law and international order; (ii) a theoretical framework for ‘transnational law’ (defined as ‘all municipal law and a subset of intergovernmental agreements that directly regulate transnational activity between individuals and individuals and state governments’,7 such as international 7   A-M Slaughter-Burley, ‘International Law and International Relations Theory: A Dual Agenda’ (1993) 87 American Journal of International Law 205–39, 230. Slaughter-Burley’s definition of transnational law is similar to Jessup’s (see chapter 3, n 36 above). Jessup and his fellow ‘Columbia School’ writers, such as Louis Henkin and Oscar Schacter, do not use an overtly interdisciplinary approach to their work, but there are certainly parallels with how liberal international relations theory views international law.

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commercial arbitration); (iii) a liberal analysis of public international law (in particular analysis of international organisations, such as the EU); and (iv) ‘rethinking the rules of the game’, that is, illuminating fundamental concepts such as sovereignty and statehood. Writing in 1995, Daniel Wincott observes that ‘legal and political science analyses of European integration took place more or less in isolation from one another.8 Since then, the disciplinary divide has been bridged by more than a ‘few hardy souls’. Lawyers and political scientists meeting in fora such as the University Association for Contemporary European Studies have developed a body of interdisciplinary work in all of the different political science approaches outlined above. Wincott’s article is mainly in the category of liberal international relations theory, although his overall conclusion suggests that new institutionalism offers a promising methodological framework for interdisciplinary work bringing together law and politics in EU studies. Wincott’s aim is to show how legal and political analysis can be brought together to provide a more satisfactory account of the European integration process than either one alone. He does this through a discussion of two periods in the history of the EU, the years of ‘Eurosclerosis’ (essentially the 1970s) and the ‘1992 programme’ (from the mid-1980s to the mid-1990s).

FURTHER READING

International A-M Slaughter et al, ‘International Law and International Relations Theory – a new generation of inter-disciplinary scholarship’ (1998) 92 American Journal of International Law 367–97. This article is almost an updated version of Slaughter’s 1993 article which is the suggested international law and IR reading, but takes advantage of another five years of scholarship in the area of international relations and international law. With a focus on liberalism, the authors discuss a number of different ways in which international lawyers are using international relations theory: (i) to diagnose and resolve international problems, (ii) to analyse particular international legal institutions and (iii) to reconceptualise international law and institutions. As well as work that ‘examines international law and institutions through the lens of international relations theory’,9 the article considers ‘inter-disciplinary work in which international lawyers attempt consciously to challenge, supplement or develop the ideas and techniques of international relations theory’.10 The authors 8   D Wincott, ‘Political Theory, Law and European Union’ in J Shaw and G More (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995) 293. 9   A Slaughter et al, ‘International Law and International Relations Theory – a new generation of inter-disciplinary scholarship’ (1998) 92 American Journal of International Law 367–97, 378. 10  ibid.



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identify work on: (i) legal process as a causal mechanism, (ii) law and the social construction of the international system and (iii) domestic and transnational law as explanatory variables.

B Constructivism Constructivism is a second, quite different type of IR or political science theory that may be combined with law. Constructivism was initially developed in the social sciences, especially in sociology and IR. There is an overlap here with some critical approaches, although not all (or probably not even a majority) of constructivists would present themselves as members of that school of thought. Constructivism (in our context) holds that the law actually constitutes, or at least helps to constitute, actors and their interests, going deeper and doing more than merely constraining behaviour. Actors derive views of their interests and identities from their relationship with law. In law, constructivist insights have also been brought to bear by those who seek to understand the law’s role in the construction of social reality. The fundamental idea behind constructivism is explained by Nicholas Onuf, one of the ‘godfathers’ of constructivism in the IR context: [H]uman beings are social beings, and we would not be human but for our social relations . . . social relations make or construct people – ourselves – into the kind of beings that we are. Conversely, we make the world what it is, from the raw materials that nature provides, by doing what we do with each other and saying what we say to each other. Indeed, saying is doing; talking is undoubtedly the most important way that we go about making the world what it is . . . relations among countries – international relations – constitutes a world in its own right . . . Constructivism holds that people make society and society makes people.11

Onuf is an interesting example to use because he crosses the divide between IR and international law, having written on international legal theory and in popular international law journals such as the European Journal of International Law, the American Journal of International Law and the Harvard International Law Journal.12 Constructivism’s relevance to law, both international and EU law, ought to be clear: law is a way of looking at, and speaking about the world and, as such, 11  N Onuf, ‘Constructivism: A User’s Manual’ in V Kubálkova, N Onuf and P Kowert (eds), International Relations in a Constructed World (London, ME Sharpe, 1998) 58, 59. See also his seminal work, World of Our Making: Rules and Rule in Social Theory and International Relations (Columbia, University of South Carolina Press, 1989). For an outstanding summary and critique of early constructivism (including the work of Onuf, Freidrich Kratochwil and Alexander Wendt) see M Zehfuss, Constructivism in International Relations: The Politics of Reality (Cambridge, Cambridge University Press, 2002). 12   N Onuf, International Legal Theory: Essays and Engagements 1966–2006 (Abingdon, Routledge, 2008); N Onuf, ‘The Constitution of International Society’ (1994) 5 European Journal of International Law 1; N Onuf, ‘International Legal Order as an Idea’ (1979) 73 American Journal of International Law 244; N Onuf, ‘Do Rules Say What They Do? From Ordinary Language to International Law’ (1985) 26 Harvard International Law Journal 385.

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impacts on the way the world is constructed by participants in the varied social processes that make up both international and European affairs. In addition to the generic questions, things to think about during the readings in this section include: what are the major concepts that underlie your thesis (for example, sovereignty, power, co-operation, effectiveness) and what do they mean? What impact does your understanding of those concepts have on your approach to your thesis? Are there other understandings of those concepts that challenge assumptions made about them? And if you adopted a different understanding, what impact would that have on your argument?

READING

International J Brunée and S Toope, ‘International Law and Constructivism’ (2000–01) 39 Columbia Journal of Transnational Law 19–74. EU J Shaw, ‘Postnational Constitutionalism in the European Union’ (1999) 6 Journal of European Public Policy 579–97. The international law piece sets out not only the basic tenets of constructivism, applying them to international law, but also interestingly attempts to link them to the natural law theories of Lon Fuller. The authors note that many legal scholars, and hence many interdisciplinary IR scholars, view international law and its role in the international system ‘through the prism of domestic legal systems, and find international law underdeveloped or wanting’.13 As social scientists borrowed their understandings of international law from legal positivists, this resulted in problems understanding international law and its horizontal structure.14 The authors claim that even the constructivist scholars who have tried to move beyond such conceptions of international law, notably Nicholas Onuf and Freidrich Kratochwil, were constrained ‘by the uncritical adoption of an hierarchical understanding of legal normativity’.15 They go on to examine alternative understandings which would not so constrain scholarship – in particular an ‘interactional’ understanding of law based on the work of Lon Fuller, more commonly associated with ideas on natural law theories. As such it also raises the issue of the continued influence of naturalism in international law. 13   J Brunée and S Toope, ‘International Law and Constructivism’ (2000–01) 39 Columbia Journal of Transnational Law 19–74, 21. 14   ibid 22. 15   ibid 24.



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In a similar vein to Brunnée and Toope, Jo Shaw’s article explicitly begins with the observation that legal scholarship based exclusively on legal positivism ‘in general encounters many difficulties’.16 Seeing ‘legal and political categories as socially constructed’,17 Shaw argues, gives us a wider range of intellectual tools with which to understand the context and meaning of European integration and the resulting law. Shaw argues for an understanding of EU constitutional law (and the EU’s discourse on constitutionalism) based on process, dialogues and the interactions of contested interests, rather than as a result of a purely legal process. The article thus also illustrates the constitutionalist approach discussed above.

FURTHER READING

General F Kratchowil, Rules, Norms and Decision Making (Cambridge, Cambridge University Press, 1989). N Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Coumbia, University of South Carolina Press, 1989). M Zehfuss, Constructivism in International Relations: The Politics of Reality (Cambridge, Cambridge University Press, 2002). International N Onuf, The Republican Legacy in International Thought (Cambridge, Cambridge University Press, 1998). A Wendt, Social Theory of International Politics (Cambridge, Cambridge University Press, 1999). EU T Risse, K Jorgensen and A Wiener, The Social Construction of Europe (London, Sage, 2001).

II  Law and Economics Unlike some strands of positivism or naturalism, law and economics is a method dedicated to appraising rather than finding the law. As such it tends to rely on a 16   J Shaw, ‘Postnational Constitutionalism in the European Union’ (1999) 6 Journal of European Public Policy 579–97, 580. 17   ibid 579.

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pre-existing positivist statement of the law. It is avowedly an attempt to explain the law as it exists, or as it ought to be, by reference to economic analysis. Law and economics is considerably younger than another approach, namely Marxism, which also looked at the law in terms of economic processes. The Law and economics movement began in the US, in particular the law school at the University of Chicago. It also has a history going back over 30 years in the UK.18 It is also different to Marxism in other ways. Marxists, broadly speaking, see law as a means of oppression through the creation and continuation of markets, and the maintenance of formal equality as a means of hiding substantive inequality. Much law and economics scholarship seeks, on the other hand, to use economic theory to influence the development of law, and accepts the tenets of the forms of (liberal/ capitalistic) economic theory as read. There are two different strands to law and economics approaches. The first seeks to explain current law on the basis that it reflects economic thinking. This can be very controversial, as well as counterfactual, in particular where attempts are made to explain areas such as criminal law this way. In other areas of law, in particular commercial law, where economic calculations are factored into the legal process more or less explicitly, this form of analysis is perhaps at its strongest. The second type of law and economics approach seeks to make proposals for the improvement of law to make it, in some way, more efficient. Some of the critiques of this form of analysis include the assertion that many lawyer-economists assume that economics is an agreed-upon science, rather than an academic discipline characterised as much as any other by disagreements and the assertions of contrary approaches. Lawyers, as non-professional economists, need to be particularly careful not to fall into this trap. Other critiques include the idea that law ought to be about more than efficiency (but of course, this requires a concept of what is good), something conceded by many lawyer-economists, who accept that certain areas of law are not appropriately the provenance of economic analysis. There are some very sophisticated applications of economics to law, many of which respond to some of the earlier critiques of previous, less subtle uses of economic analysis in law. Some of the more complex literature can be difficult, in particular when it drops into algebra. Again we would encourage readers, when reading these pieces, to think about the questions on page 6 of this book. What kind of research questions can this approach tackle? What are the benefits and drawbacks of a ‘law and economics’ approach?

18   The first such piece of which we are aware being A Ogus and G Richardson, ‘Economics and the Environment: A Study of Private Nuisance’ (1977) 36 Cambridge Law Journal 284–325.



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READING

International J Dunoff and J Trachtman, ‘The Law and Economics of Humanitarian Law Violations in Internal Conflict’ (1999) 93 American Journal of International Law 394–409. EU T Tridimas and G Tridimas, ‘The ECJ and the Annulment of the Tobacco Advertisement Directive: Friend of National Sovereignty or Foe of Public Health?’ (2002) 14 European Journal of Law and Economics 171–83. One (short) and useful piece showing and explaining law and economics analysis, its methodologies and how it may be applied (in a particularly controversial area, international criminal law), is Jeffrey Dunoff and Joel Trachtman’s 1999 article. This piece provides critiques of other authors’ approaches to law and responds to some of the criticisms of law and economics, before moving on to apply the authors’ own approach to the subject at hand. However, they quite explicitly do not provide an answer to the best way forward on the specific question they were asked to answer. In EU law, we have chosen a piece by Takis Tridimas and George Tridimas. This, as its title suggests, applies economic analysis to the judgment in the Tobacco Advertising case,19 showing not only how economic analysis can be enlightening in specific contexts, but also the broader political aspects of the dispute, raising the question of whether economic analysis can/ought to be used to solve matters of political controversy. It is also quite accessible, in particular for the genre.

FURTHER READING

International J Dunoff and J Trachtman, ‘Economic Analysis of International Law’ (1999) 24 Yale Journal of International Law 1–42. EU B Crettez and R Deloche, ‘On the Unification of Legal Rules in the European Union’ (2006) 21 European Journal of Law and Economics 203–14.   Case C-376/98 Germany v Council (Tobacco Advertising) [2000] I-8419.

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S Deakin, ‘Legal diversity and regulatory competition: which model for Europe?’ (2006) 12 European Law Journal 440–54. P van Wijck and J Theeuwes, ‘Protection Against Unfair Contracts: An Economic Analysis of European Regulation’ (2000) 9 European Journal of Law and Economics 75–91. W Wils, The Optimal Enforcement of EC Antitrust Law, Essays in Law & Economics, (New York, Wolters/Kluwer/Aspen, 2002).

III  Law and Sociology Law exists in, is developed through, and to some extent reflects the society it arises from, and to a degree seeks to shape and improve it. It is a social practice: law and society are deeply entwined, so it is no accident that one of the greatest early sociologists, Emile Durkheim, looked to the laws of a society to help determine its moral, social and political ideals.20 It is also difficult to understand law without understanding the society in which it operates. To take one (perhaps trite) example, the television licensing laws in the UK only make sense in the context of the place of the British Broadcasting Corporation’s (BBC) work and real or perceived role in society. Again, like other ‘law ands’ such as ‘law and international relations’, and ‘law and economics’, ‘law and sociology’ is really too large a category for us to do it justice here. Sociology, like economics or political science, is a discipline rich in its own methodological debates, no less fundamental than those in law. However, putting it simply, a ‘law and sociology’ approach to EU or international law seeks to bring insights or methods of sociology alongside legal analysis; or to apply sociological methods to international or EU legal institutions or actors. Either of these can have an explicitly policy-based focus (where the research question is overtly about law reform), or can be more theoretical or academic in focus. In common with a number of the approaches already discussed, law and sociology approaches are interested in discovering ‘law in action’, as opposed to simply ‘law in the books’. They are therefore interested in the social network of ‘power relations’, and the ways that law and legal institutions/networks contribute to those relations. This interest, and the fact that there are many critical scholars who would identify their approach as ‘socio-legal’ shows the links between such approaches, and those of scholars related to cognate areas such as feminist, Marxist and postcolonial studies. The two readings here are very different, reflecting something of the broad sweep of the ‘law and sociology’ approach. Again we would encourage readers when reading these pieces to think about the questions on page 6 of this book. What kind of research questions can these approaches tackle? What are the implications of taking into account/questioning societal structures for your thesis or research project?   See, eg, E Durkheim, The Division of Labour in Society (New York, Macmillan, 1893).

20



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READING

International G Schwarzenberger, ‘Jus Pacis Ac Belli?’ (1943) 37 American Journal of International Law 460–79. EU B Lange, “Researching Discourse and Behaviour as Elements of Law in Action” in R Banakar and M Travers (eds), Theory and Method in Socio-Legal Research (Oxford, Hart Publishing, 2005). Georg Schwarzenberger, writing in 1943 (law and sociology approaches are not new) was interested in discovering the process by which the traditional system of international law became divided into the law of peace and the law of war, and in considering the significance of this division. Throughout, he contrasts a ‘positivist’ and ‘sociological’ approach to international law (although he does not explicitly outline what the latter constitutes). Beginning with international lawyers who took a naturalistic approach such as Hobbes and Pufendorf (writing in the 1600s), he is interested in the functions that legal concepts such as war and peace play in ‘the reality of society’.21 Separating out ‘war’ and ‘peace’, and defining peace as absence of war, as these natural lawyers do, according to Schwarzenberger ‘invite[d] subjectivism and abuse by State practice’.22 Turning to contemporary (for Schwarzenberger) approaches (essentially positivist), again assumptions about the concepts of peace and war (such as the normality of peace; the alternative character of peace and war; and war as a status and objective phenomenon) do not measure up to the reality of power politics or state practice. Schwarzberger’s overall conclusion is that positivist-based ‘analytical and descriptive work . . . must be supplemented by a sociological analysis of international law as a law of power, reciprocity and coordination, and correspondingly as an ideology, reality and utopia’.23 Although Schwarzenberger is often now overlooked as a scholar, his understanding of the interrelationship between law and society is telling, and, as an avowed positivist, his approach also illustrates the point that there is no necessary inconsistency between some of the approaches we are discussing in this book. Bettina Lange’s chapter uses discourse analysis and a qualitative approach to generate new insights into EU law in action, as opposed to how it looks ‘on paper’. The chapter asks about the implementation of an EU environmental law directive, which requires industry to use ‘best available techniques’ (BAT) to reduce 21   G Schwarzenberger, ‘Jus Pacis Ac Belli?’ (1943) 37 American Journal of International Law 460–79, 462. 22   ibid 465. 23   ibid 479.

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environmentally harmful emissions to air, water and land. But how is BAT determined? This is crucial to an understanding of ‘BAT law in action’. After a lengthy, interesting, but admittedly challenging theoretical/methodological introduction, the article describes the combination of the qualitative and the discourse analysis research processes. Lange analyses the discourse from technical working group meetings, at which a ‘BAT Reference Document’ was being discussed. Lange’s qualitative analysis reveals that two procedures are at play. One is based on assent through group consensus reached through power brokerage, the other is based on detailed, technical arguments, based on careful scrutiny of specific data. This analysis also reveals how the procedure structures social relations within the working group meeting (something which is a key idea for constructivists). The discourse analysis reveals four discursive techniques: interpretation of written and oral text; drawing distinctions between various terms; use of parallel stories and ruptures, rather than a unified narrative; and the use of inclusive language (‘we’, ‘us’, ‘the group’). The combination of these two research methods reveals insights about ‘the microphysics of power which inform EU law in action’.24

FURTHER READING

V Gessner (ed), European Ways of Law (Oxford, Hart Publishing, 2007). D Hirsch, ‘Cosmopolitan Law, Agency and Narrative’ in M Freeman (ed), Law and Sociology (Oxford, Oxford University Press, 2006). D Trubek, ‘Towards a Social Theory of Law: An Essay on the Study of Law and Development’ (1972) 82 Yale Law Journal 1–50.

IV  Law and History There is an increasing turn in scholarship to historical approaches to the law and applying some of the insights historians have to offer on the interpretation of events to law and legal processes. Most lawyers use the work of historians to some extent or another, however, probably not as much as ought to be the case. Historical approaches to the law can help ground arguments in their historicopolitical context, but also help to avoid the unintentional revisiting of arguments that have been raised and discussed before.25 Where arguments are not new, it helps those engaging with them to know the earlier discussions, so as to understand, and pre-empt, the likely critiques that have been made of positions on either side. Historical research is, of itself, rewarding and casts new light on events 24   B Lange, ‘Researching Discourse and Behaviour as Elements of Law in Action’ in R Banakar and M Travers (eds), Theory and Method in Socio-Legal Research (Oxford, Hart Publishing, 2005) 194. 25   Möller’s article, listed under Governance approaches, seeks to do this (see ch 5 n 6).



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that have been forgotten, or misunderstood. Courts, and their proceedings, are particularly amenable to documentary research, but they are by no means the only area of law that can be subjected to legal-historical research (for examples see Ole Spierman,26 and David Kennedy).27 Again, however, history is not a discipline that is either hermetically sealed or uncontroversial on its own terms. The way in which historians write history, and the flaws and strengths of historical method are features that can be extremely useful for lawyers, particularly when they seek to write works that are, in some ways, histories (for example, of institutions or the development of the law). It is also useful to look at historico-legal approaches to explain the historico-political backdrop to judicial decisions, as well as for what they may tell us about the way in which courts write histories (after all, judgments contain findings of facts and narratives as well as legal argument). Some historical studies also label themselves ‘genealogies’. A genealogy implies more than a looking back at the past, it suggests rather a critical historical examination, that combines the three elements of power relations, subjugated (or minor) knowledges and history.28 Foucault, who borrows the term from Nietzsche, describes genealogy as a ‘history of the present’.29 Law and history can be undertaken, and has been undertaken, by scholars from various other traditions. For example, David Kennedy and Martti Koskenniemi have both written on the history of international law, as have Marxist and postcolonial scholars. Mark Osiel has taken an avowedly law and society approach to the writing of history in court judgments.30 Again readers are encouraged, while reading these pieces, to reflect on what type of legal research questions a ‘law and history’ approach would support in their own fields of interest. Are you undertaking a study that requires reflection on the past/the present in light of the past?

READING

International I Hueck, ‘The Discipline of the History of International Law: New Trends and Methods on the History of International Law’ (2001) 3 Journal of the History of International Law 194–217. 26   O Spierman, International Legal Argumentation in the Permanent Court of International Justice: The Rise of the International Judiciary (Cambridge, Cambridge University Press, 2004). 27   D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’ (1997) 17 Quinnipiac Law Review 99–136. 28   See M Foucault, Discipline and Punish: The Birth of the Prison (London, Penguin, 1991) and M Foucault, ‘Nietzsche, Genealogy, History’ in P Rabinow (ed), The Foucault Reader (New York, Pantheon Books, 1984) 76–100. 29   M Foucault, Discipline and Punish: The Birth of the Prison (A Sheridan tr, London, Penguin 1991) 31. See further M Foucault, ‘Nietzsche, Genealogy, History’ in Paul Rabinow (ed), The Foucault Reader (New York, Pantheon Books, 1984) 76. 30   M Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, Transaction, 1997).

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EU L Bartels, ‘The Trade and Development Policy of the EU’ (2007) 18 European Journal of International Law 715–56. Ingo Hueck’s piece is a discussion of Wilhelm Grewe’s controversial The Epochs of International Law. In the course of the piece, Hueck criticises many of the ways in which the history of international law is traditionally written (particularly as discrete periods), and has a short history of international law scholarship (although it is, it must be said, very selective in coverage). Bartels’ article is a straightforward example of a law and history approach, which does not include – as many of the other readings in this book do – a discussion of the methodology itself. It explores the historical background to and development of the EU’s external trade relations with various countries, in particular those in Africa. In doing so, it also touches upon aspects of the early relationship between France and other Member States of the EEC. The article traces the origin of the EU’s trade and development policy back to ‘France’s demand that the EEC join in its colonial enterprise’,31 but challenges the idea that the current situation is purely the result of ‘natural evolution of an early interest in assisting developing countries’.32 The author notes the 1950s’ vision of a role for developing countries in the EU project, and the French Union trading regime between France and its colonies, and then discusses how EEC law arose from such origins, the wider world’s response to the EEC and the resulting attempts by the EU to align its policy to the Principles of the UN Conference on Trade and Development, with trade being non-discriminatory and this being enforceable by the WTO. Finally, the author concludes that the EU is moving away from a ‘trade and development policy based on history to one based on principle’.33

FURTHER READING

International M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, Cambridge University Press, 2002). Y Onuma, ‘When was the Law of International Society Born – An Inquiry of the History of International Law from an Intercivilizational Perspective’ (2000) 1 Journal of the History of International Law 1–66. D Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’ (1997) 17 Quinnipiac Law Review 99–136. 31  L Bartels, ‘The Trade and Development Policy of the EU’ (2007) 18 European Journal of International Law 715–56, 715. 32  ibid. 33   ibid 729.



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EU E Baker and C Harding, ‘From past imperfect to future perfect? A longitudinal study of the third pillar’ (2009) 34(1) European Law Review 25–54. P Zumbansen, ‘Review Essay: Europe’s Darker Legacies? Notes on “Mirror Reflections”, The “Constitution As Fetish”, and Other Such Linkages Between The Past And The Future’ (2005) 43 Osgoode Hall Law Journal 321–34. Koskeniemmi’s book traces the development of international legal thought, in relation to particular scholars and to world events, placing particular concepts in the context of their time – including colonialism and the scramble for Africa and modern notions of human rights. He draws out themes of universalism and particularism, together with the idea of formalism versus dynamism as different scholars’ approaches to international law – the former represented by Hans Morgenthau, who saw formal international law as largely irrelevant to international politics compared to the national interest; the latter represented by Myres McDougal’s policy-oriented approach. He identifies a spirit of internationalism that motivated many international lawyers in the period he covered, which saw international law as the eponymous gentle civiliser, although as he says at the end of the survey, ‘there has been stupidity, unwarranted ambition, careerism, and much hypocrisy. But there has also been some political wisdom, and a little courage, times when faith was lost, but also stubborn refusal to admit defeat’.34 Somewhat controversially, he classifies scholars often according to nationality, an approach that may overstate the influence that has on international legal traditions. Peer Zumbansen’s review essay is of Christian Joerges and Navraj Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism Over Europe and its Legal Traditions and Joseph Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State. The review notes in particular how important the process of understanding the past is for having a view on the future, and uncovering what Zumbansen describes as ‘hitherto hidden agendas of current academic debates’.35 The method encouraged is that of ‘historical genealogies’,36 for at a time when what is at the forefront of discussion is what ‘Europe’ really is, it is just as challenging to state what Europe was. As this rightly flags up, many debates are influenced heavily by the past, whether this is admitted or not. Current EU scholarship is obsessed with a Europe in becoming and a Europe in practice; yet a better understanding of the nature of the European project can only be achieved by examining ‘the before’, the subtext of the integration 34   M Koskenniemi The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, Cambridge University Press, 2002) 503. 35  P Zumbansen, ‘Review Essay: Europe’s Darker Legacies? Notes on “Mirror Reflections”, The “Constitution As Fetish”, and Other Such Linkages Between The Past And The Future’ (2005) 43 Osgoode Hall Law Journal 321–34, 328. 36   ibid 330.

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programme, the past.37 The essay also links with the burgeoning literature on EU constitutionalism that we noted above.

V  Law and Geography This approach uses ‘conceptual frames’ of geography – space, boundaries, land, landscape, property, identity or culture – to examine particular legal issues, or the nature of law itself.38 Elements of ‘physical’ geography – such as borders, boundaries and land – are clearly important in areas of international and EU law such as self-determination and the requirements for recognition of a state, or issues surrounding the construction of physical boundaries such as the Berlin Wall or wall constructed by Israel.39 In addition, ‘human’ geographical concepts are also an important area for scholarship. Issues of identity, culture and migration have been much discussed in both European and international legal scholarship, such as the literature on EU immigration and citizenship and the idea of global citizenship or identity. Such work covers both the ‘internal’ national (or European) identity created or encouraged by borders and the ‘external’ people excluded by borders – refugees, asylum seekers, illegal immigrants.40 The further reading contains examples of this work, though not necessarily focusing on legal issues. In addition, because geography as a topic overlaps with subjects such as politics, history or sociology, ‘law and’ geography pieces will often use, to a greater or lesser extent, other methodologies.41 Many works using geographical concepts are examples of a critical theoretical approach, for example, there is an increasing amount of literature which uses Foucault’s ideas on governmentality to analyse space, territory and circulation.42 This approach may have much to offer the study of both international and EU law.

  ibid 329.  W Taylor, ‘Introduction’ in W Taylor (ed), The Geography of Law: Landscape, Identity and Regulation (Oxford, Hart Publishing, 2006) 1. 39  See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136; Beit Sourik Village Council v Government of Israel, Israel High Court HCJ 2056/04; Mara’abah et al v Government of Israel et-al, Israel High Court HCJ 7957/04. 40   B Golder, V Ridler and IR Wall, ‘Editors’ Introduction: The Politics of the Border/the Border of the Political’ (2009) 20 Law and Critique 105–11. 41   See, eg, the references to English imperial history in E Darian-Smith, ‘Rabies Rides the Fast Train: Transnational Interactions in Post-colonial Times’ in N Blomley, D Delaney and R Ford (eds), The Legal Geographies Reader: Law, Power and Space (Oxford, Blackwell, 2001) 187–99. 42   S Elden, ‘Rethinking governmentality’ (2007) 26 Political Geography 29–33, 30; J Crampton and S Elden, Space, Knowledge and Power: Foucault and Geography (Aldershot, Ashgate, 2007) 6–7, in particular the idea of Foucault’s ‘shifting the emphasis from a simple retention of territorial control to a more nuanced notion of government over a “complex” of men and things’. 37 38



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READING

International A Appadurai, ‘Sovereignty without Territoriality: Notes for a Postnational Geography’ in SM Low and D Lawrence-Zúñiga (eds), The Anthropology of Space and Place: Locating Culture (Oxford, Blackwell, 2003). EU A Wiener, ‘Making sense of the new geography of citizenship: Fragmented citizenship in the EU’ (1997) 26 Theory and Society 529–60. In the reading for international law, Arjun Appadurai argues that since ‘the agreements associated with the Westphalian peace settlements of 1648, the embryonic principle of territorial sovereignty becomes the foundational concept of the nation-state’ and that ‘the fundamental political and juridical rationale and basis of the system of nation-states is territorial sovereignty’.43 Appadurai explains that notions of ‘locality’ challenge the nation-state in two ways: first by the tendency of a locality such as a neighbourhood to ‘develop partly by contrast to other localities by producing its own context’44 and second by mobile groups of people and economic conditions creating ‘various circulating populations with various kinds of “locals” to create localities that belong in one sense to particular nation-states but are, from another point of view, what we might call translocations’.45 Examples of translocations are border zones, some tourist zones, free trade zones and major refugee camps. The article then goes on to examine how territorial sovereignty, as a cultural more than a strictly legal concept, is affected by localities. It is demonstrated that the idea of territorial sovereignty is in tension with many current ‘real-world’ issues such as the increasing number of non-resident citizens owing to economic liberalisation, or the blurring distinction between international and non-international conflicts.46 However, Appadurai also points to instances where territory is clearly still important, such as ‘[t]he search for homelands and autonomous states by groups as different as the Palestinians, the Kurds, the Sikhs’.47 The article concludes that sovereignty and territoriality ‘live increasingly separate lives’48 and that ‘[t]erritorial integrity is increasingly not a simple expression of national integrity’.49 43   A Appadurai, ‘Sovereignty without Territoriality: Notes for a Postnational Geography’ in SM Low and D Lawrence-Zúñiga (eds), The Anthropology of Space and Place: Locating Culture (Oxford, Blackwell, 2003) 337. 44   ibid 338. 45   ibid 339. 46   ibid 340. 47   ibid 342. 48   ibid 347. 49  ibid.

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Antje Wiener’s article examines different aspects of ‘citizenship’ – as a political concept, a policy and a legal concept.50 Wiener asserts that ‘Union citizenship . . . is granted on the basis of Member State nationality, not European nationality. That is, specific European political and socio-cultural dimensions seem to be lacking.’51 The notion of European citizenship is considered to be a challenge to traditional ‘national’ definitions of citizenship52 and the article traces the concept of ‘citizenship practice’ to tell the story of the evolution of notions of European citizenship.53 The geographical notions used in this piece include the physical, such as borders and boundaries, but the article focuses more on the socio-­cultural, historical and political aspects of geography in examining the concept of citizenship. In so doing, Wiener concludes that, in addition to legally ‘belonging’ to the EU, citizenship ‘also turns out to be a story about identities’.54 As this identity exists in parallel with, rather than replacing, national citizenship or identity, Wiener believes that citizenship is now fragmented and, as such, that the EU is a post-modern community55 (and, given the theme running through the article about different identities and contrasting narratives of national and EU citizenship development, this article can be seen as an example of a critical theory approach as well as a ‘law and geography’ approach).

FURTHER READING

International K Kaikobad, Interpretation and Revision of International Boundary Decisions (Cambridge, Cambridge Unversity Press, 2010). W Kymlicka, ‘Citizenship in an era of globalization: commentary on Held’ in I Shapiro and C Hacker-Cordon (eds), Democracy’s Edges (Cambridge, Cambridge Unversity Press, 1999). A Linklater, ‘Cosmopolitan Citizenship’ (1998) 2 Citizenship Studies 23–41. K Raustiala, ‘The Geography of Justice’ (2005) 3 Fordham Law Review 2501–560. EU J Crampton, ‘Maps, Race and Foucault: Eugenics and Territorialization Following World War I’ in J Crampton and S Elden, Space, Knowledge and Power: Foucault and Geography (Aldershot, Ashgate, 2007) 223–44. 50   A Wiener, ‘Making sense of the new geography of citizenship: Fragmented citizenship in the EU’ (1997) 26 Theory and Society 529–60, 529. 51  ibid. 52   ibid 530. 53  ibid 531. 54   ibid 548. 55  ibid.



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D Kochenov, ‘Substantive and procedural issues in the application of European law in the overseas possessions of European Union Member States’ (2008–09) 17 Michigan State Journal of International Law 195–289. R Koslowski, ‘Intra-EU migration, citizenship and political union’ (1994) 32 Journal of Common Market Studies 361–402. M Sassatelli, ‘Imagined Europe: the shaping of a European cultural identity through European cultural policy’ (2002) 5 European Journal of Social Theory 435–52. J Shaw, ‘The Interpretation of European Citizenship’ (1998) 61 Modern Law Review 293–317. Both the international and EU law further readings include examples of both doctrinal work on points of law and pieces discussing particular geographical concepts such as citizenship and culture. Andrew Linklater and Will Kymlicka discuss ideas of citizenship from different (though not strictly legal) perspectives, overlapping with concepts introduced earlier in this book – the idea of a cosmopolitan identity and citizenship as against the more pluralist sense of identity at a smaller community level. Kaiyan Kaikobad’s book examines boundary and territorial disputes and focuses on tribunals’ decisions and how they interpret and/or revise previous/ other tribunals’ decisions, demonstrating a more doctrinal approach to a geographical subject. Kal Raustiala’s article is particularly interesting because it involves an analysis of case law, which would often be the subject of doctrinal reviews such as the ‘case notes’ found in many journals. Raustiala discusses the unusual status of the Guantanamo Bay area of Cuba, commenting that ‘[t]he supposition that law and legal remedies are connected to, or limited by, territorial location . . . is commonplace and intuitive’ but that the assumptions embedded in this supposition ‘are rarely examined and surprisingly ill-defended’. 56 With particular reference to the controversy surrounding the detainees at Guantanamo Bay, the article questions the idea that ‘simply by moving an individual around in space, the rights the individual enjoys wax and wane’.57 It should be noted that this article focuses upon the approach of US courts in considering US law, though the cases of the Guantanamo Bay detainees did also consider international humanitarian law issues of combatancy. Despite the focus by this article on US law, the issues of territory, sovereignty and jurisdiction are clearly important aspects that apply to a study based in international law. Jeremy Crampton’s chapter is about the borders of Europe rather than EU law but gives a useful illustration of how to use Foucault’s ideas on spatialisation and governmentality as a critical tool to understand racial boundaries across Europe (what he calls ‘race-based mapping in geography’).58 Rey Koslowski, Monika Sassatelli and Jo Shaw discuss the geographical concepts of migration, citizenship   K Raustiala, ‘The Geography of Justice’ (2005) 3 Fordham Law Review 2501–560, 2501.   ibid 2504. 58   J Crampton, ‘Maps, Race and Foucault: Eugenics and Territorialization Following World War I’ in J Crampton and S Elden, Space, Knowledge and Power: Foucault and Geography (Aldershot, Ashgate, 2007) 223, 240–41. 56

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and cultural identity, whereas Dimitry Kochenov’s article is an example of a more strictly ‘legal’, doctrinal approach to an important geographical issue of EU Member State overseas territories. Kochenov explains the differing application of EU law to various overseas territories, which varies according to the status accorded to each particular territory (though which is also governed by the EU’s general rules on territorial limitations of legal systems), and goes on to consider the procedure for changing an overseas territory’s status within the EU.

VI  Law and Literature Some connections between law and literature are immediately obvious, such as the regulation of literature by laws on copyright and libel. ‘Law and’ literature studies are far broader than these distinct areas and encompass ideas about the law in popular culture;59 or about legal texts and judicial opinions as literary texts, to be subject to literary criticism.60 A law and literature approach includes two broad methodological approaches – law in literature and law as literature.61 Law in literature takes literary works and analyses them for insights of use to lawyers – most particularly when applied to literary works concerned with ideas of law and justice – such as Kafka’s The Trial or Melville’s Billy Budd.62 Law as literature takes a legal text or judgment and subjects it to literary criticism, and might look at how judges can make their judgments more persuasive and therefore more authoritative and less likely to be challenged63 – although ‘it is not always possible to sharply delineate the two approaches’.64 A law and literature approach is likely to have much in common with critical approaches, as both seek to go beyond text and interpret the language involved in telling a particular story. Richard Posner describes this approach as arising from the movement by literary scholars in the 1970s who ‘mount[ed] a sustained attack on the possibility of objectively interpreting works of literature’.65 Telling a particular story is, Ian Ward claims, telling a particular history, because ‘the characteristic of storytelling is history’66 and historical accounts are notoriously open to the attack of subjectivity. Law and literature studies have drawn on diverse sources

  eg, R Posner, Law and Literature (Cambridge, MA, Harvard University Press, 2009) 51.   ibid 237, 329.   I Ward, Law and Literature: Possibilities and Perspectives (Cambridge, Cambridge University Press, 1995) 3. 62   See, eg, R Posner, n 59 above, 170 and 195. 63   Ward, n 61 above, 4; R Posner, ‘Law and Literature: A Relation Reargued’ (1986) 72 Virginia Law Review 1351–92. 64   Ward, n 61 above, 3. 65   Posner, n 59 above. 66   Ward, n 61 above, 4. 59 60 61



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such as work by Derrida on language67 or by Plato on poetry and philosophy.68 Derrida for instance asserts the importance of what he calls ‘text’ – ‘reality’ can only ever be textually constituted. This is what Derrida means when he famously says, ‘[t]here is nothing outside of the text [there is no outside-text; il n’y a pas de hors-texte].’(emphasis added)69

READING

International AWB Simpson, ‘The Agincourt Campaign and the Law of War’ (1995) 16 Michigan Journal of International Law 653–66. EU L Pearce, ‘The place of literature in the spaces of belonging’ (2002) 5 European Journal of Cultural Studies 275–91. AW Brian Simpson’s article is a book review of Theodor Meron’s Henry’s Wars and Shakespeares’s Laws: Perspectives on the Law of War in the Later Middle Ages70 and is a short piece examining Meron’s use of Shakespeare’s Henry V and other sources to understand the origin of our modern laws of war. Shakespeare’s literature is almost taken as fact, rather than his language being reinterpreted, because the literature is being used for a particular reason – an example of law in literature, using Henry V as an insight into history. Shakespeare’s description of events is discussed in relation to pertinent issues in the modern law of war, such as rape,71 pillage72 and the killing of prisoners.73 Lynne Pearce’s article argues that literature helps us to understand our notions of home and belonging with regard to ‘the complex intersection of our national, regional and gendered identities’.74 She relates her work expressly to the EU and the ‘redrawing’ of the ‘map of Europe’, which has brought into question the 67   R Weisberg, ‘Law and Literature as Survivor’ (1 March 2008) Cardozo Legal Studies Research Paper No 221. See further, J Derrida, Of Grammatology (G Chakravorty Spivak tr, Baltimore, John Hopkins University Press, 1997). 68   K Yoshino, ‘The City and the Poet’ (2005) 114 Yale Law Journal 1835–96 1. 69  Derrida, Of Grammatology, n 67 above, 158. 70   T Meron, Henry’s Wars and Shakespeares’s Laws: Perspectives on the Law of War in the Later Middle Ages (Oxford, Clarendon Press, 1993). 71   AWB Simpson, ‘The Agincourt Campaign and the Law of War’ (1995) 16 Michigan Journal of International Law 653–66, 660. 72   ibid 662. 73   ibid 664. 74   L Pearce, ‘The place of literature in the spaces of belonging’ (2002) 5 European Journal of Cultural Studies 275–91, 275.

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future of the nation-state and our national identities.75 Pearce believes that national and regional literature helps us to produce a ‘locational identity’76 – and focuses on autobiographies in particular as a means of so doing. She contends that ‘the strategic use of the personal pronoun constitutes an analytic method as well as a rhetorical mode’77 – and that this enables people to understand ‘the complexity of their positioning as gendered and national/regional subjects’ and find a ‘sense of belonging’.78 She focuses on British literature but her ideas are applicable to any European state, with the added challenge of finding your own literature as she found du Maurier and Galloway.79 Pearce expressly relates her work to feminism, believing that the need to find our regional identities in Europe ‘should be of particular concern to women – one of the social groups perceived to be most alienated from traditional ideas of nationhood’.80 There are thus links to feminist approaches discussed above.

FURTHER READING

International J Surdukowski, ‘Is Poetry a War Crime? Reckoning for Radovan Karadzic the PoetWarrior’ (2005) 26 Michigan Journal of International Law 673. S Tiefenbrun, Decoding International Law: Semiotics and the Humanities (Oxford, Oxford University Press, 2010). EU P Schwyzer, ‘The bride on the border: Women and the reproduction of ethnicity in the early modern British Isles’ (2002) 5 European Journal of Cultural Studies 293–306. Jay Surdukowski’s piece is an example of a different ‘law and literature’ approach. It discusses the use of poetry as evidence in an international criminal legal trial, touching upon the rules of evidence and the extent of unpacking and interpretation required of Radovan Karadžic’s poetry in order to demonstrate the intentions behind his alleged war crimes. Susan Tiefenbrun’s book is a very useful and detailed example of using semiotics (the study of signs) to look at, interpret and use representations of international law (and violations of it) in literature. As she makes clear:  ibid.  ibid.   ibid 277. 78   ibid 277, 286. 79   ibid 284. 80   ibid 275. 75 76 77



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The semiotics of law is a specialized study of sign systems underlying legal informational exchanges. Law, like literature, art, music, mathematics, Morse code or even traffic signs, is a communication system composed of elements called signs (or more familiarly, words) that convey a coded message.81

Semiotics is thus used to attempt to uncover the precise code, and the relationship between the words (or other signs) and the ideas and concepts they signify. To further this project, she looks at books such as Joseph Conrad’s The Secret Agent and Azar Nafisi’s Reading Lolita in Tehran, and films such as Hotel Rwanda, to further understand the law and the concepts to which law refers, as well as its representation in other artistic forms. Chapter two of the book also contains a helpful explanation of semiotics and its relationship to law. Philip Schwyzer examines the nineteenth-century literature of Tennyson and a much earlier Czech piece, the ‘Dalimil Chronicle’ from 1314. He concludes that the practice of stigmatising or mistrusting foreign women, and considering them as unsuitable mates, is widespread. Though focusing on England, Wales and Ireland, his use of Czech literature demonstrates that this idea is applicable to the whole of Europe, in particular his discussion of how the idea of ‘“race” in the modern sense . . . came into being’.82 He then ties these ideas into modern notions of boundaries, nations and ethnic groups in his conclusion, which discusses the inalienability of culture and difference in relation to the modern EU legal framework concerning free movement of commodities and ideas.83

81  S Tiefenbrun, Decoding International Law: Semiotics and the Humanities (Oxford, Oxford University Press, 2010) 24. 82   P Schwyzer, ‘The bride on the border: Women and the reproduction of ethnicity in the early modern British Isles’ (2002) 5 European Journal of Cultural Studies 293–306, 296. 83   ibid 304–05.

7 What Next? Life after a PhD Readers who have made it this far through the book perhaps do not need any further convincing that ‘methodology is practical’ and that the kinds of reflection on methodological questions that this book encourages, far from than making life more difficult for PhD students and other scholars of EU and international law, can actually help in the successful completion of research projects, including PhDs. Nonetheless, if readers have perhaps jumped to this chapter, or still need to be convinced, this chapter begins with an explicit consideration of why thinking about legal research methodologies will help with the very practical questions of preparing for a PhD viva voce examination, how to prepare the PhD for publication and how to think about future research projects.

I  The Viva and Research Methodology Questions As far as we are aware, all UK university regulations for the award of a PhD not only involve satisfying the examiners in the written project of the PhD thesis itself,1 but also involve a viva voce examination, at which the candidate ‘defends’ the thesis to the examiners (or, rather, in our experience, discusses the thesis and the project with the examiners). At the viva voce examination, the examiners are satisfying themselves that the thesis is the work of the candidate. They are also satisfying themselves that the candidate is aware of where the thesis, and the research project on which it is based, fit in with the rest of the discipline (in our case, EU or international law). In order to convince the examiners of this, the candidate needs to have a broad knowledge of his or her own discipline. We think that that knowledge and understanding is an important professional capacity, which the award of a PhD evidences. To give two concrete examples, the regulations of the Universities of Sheffield and Nottingham (where we held our two project workshops) read as follows: 34  A candidate for the Degree of PhD, . . . shall additionally satisfy the Board that the thesis forms an addition to knowledge, shows evidence of systematic study and of

  In addition, in our experience outside of the UK, analogous conditions apply.

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ability to relate the results of such study to the general body of knowledge in the subject, and is worthy of publication either in full or in an abridged form.2 (Emphasis added.) 32  The viva will include questions designed to ascertain that the thesis embodies the candidate’s own research. It will test the candidate’s general comprehension of the field of study within which the subject of the thesis falls. It will test the candidate’s acquaintance with the general literature of the subject, knowledge of the relation of the work to the wider field of which it is a part, and the respects in which the work advances, modifies, or otherwise affects this wider field of scholarship.3 (Emphasis added.)

Obviously, it is essential for readers to be familiar with the regulations of their own university, but these suffice to give a flavour of the kinds of requirements that are expected of successful PhD students. So, at the viva voce examination, candidates can be expected to be asked questions about their general field of research. Now, these might be substantive questions, for instance, about what a candidate thinks are the most significant recent substantive developments in EU or international law. But they may well also be methodological questions, of the sort upon which we have been encouraging discussion and reflection throughout this book. After all, the candidate is (or should be, if the thesis is original) the world expert on the specific substance of the PhD. Under those circumstances, no examiner can know more than the candidate does about its substance. But any examiner will be able to talk about research methodology – even if only by comparison and contrast to his or her own methodological preferences. Thus, when preparing for a viva voce examination, it can be helpful to consider the following issues. This exercise will involve reconsideration of the work we suggest throughout the rest of this book. We would add that, in our experience, it really helps to practise the answers to the sorts of questions that might be asked – perhaps readers may consider forming small groups of those preparing for a viva voce in the near future, to practise doing so with one another. A common opening question at a viva voce examination invites the candidate to reflect on why they chose this particular topic. Our observations in chapters one and two of this book, about the relationships between choice of research agenda and underlying methodological assumptions or positions, may help readers to think about how they might answer this sort of question. At the same time, a candidate may demonstrate wider knowledge of the field (of EU or international law) by explaining not only why they were drawn to a particular project in terms of their methodological assumptions, but also why other methodological approaches were not appropriate or appealing. Second, it may be useful to work out the answers to some of our generic questions (introduced in chapter one), in terms of the PhD thesis. As a reminder, these questions are:   General Regulations for Higher Degrees, University of Sheffield.   Regulations for the Degree of Doctor of Philosophy (PhD), University of Nottingham.

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What is/are the research question(s) the author asks in this piece? Why should a reader or publisher be interested? What sources/data were used? How were they used? What assumptions does the author make about law and legal research? What type of research questions can this approach answer? What are the benefits and drawbacks of this approach? Perhaps the examiners will ask these questions, or very similar questions. They may well have asked themselves such questions when considering the extent to which the thesis meets the requirement of making an original contribution to knowledge in the field concerned. In particular, the question ‘why should a reader be interested?’ concerns both what is new about this particular piece of work, that is, that it has not been done before, and also why it was important that this work be carried out. (Incidentally, these points map more or less directly onto the criteria of ‘originality’ and ‘significance’, which, along with ‘rigour’, have been used to assess published work in successive Research Assessment Exercises, and are proposed as the criteria of assessment for the forthcoming Research Excellence Framework.) Being able to answer these questions convincingly will go a long way in a viva voce situation. Third, candidates are likely to be asked questions about established scholarship on which they draw in the thesis. In particular, candidates might be asked to defend the approaches that they took to their analysis. Being able to reflect on the benefits and disadvantages of different approaches will help to answer these kinds of questions. It may help to work out what the ‘standard critique’ of a particular approach is (the readings in the book will help), and what a valid response (drawing on that of others who adopt similar approaches) to that critique would be. Just by way of conclusion, and looking ahead from a viva voce examination, what we have said here about the kinds of questions viva voce examiners might ask applies with even greater force in a lectureship interview situation. Members of an appointment panel in a Law School are not always likely to share the substantive knowledge of a job applicant. So if panel members want to discuss research with applicants, and this will be the case for any post which includes an obligation to conduct research, the panel is likely to ask questions that are essentially about methodology. So, if and when readers land a job interview, reflecting on these questions may also help in preparing for that experience.

II  Wider Dissemination of the PhD Successfully defending a PhD at a viva voce examination is only the start of the process of wider dissemination of a PhD research project. Having produced an original contribution to knowledge in EU or international law, or both, a successful PhD candidate will be keen to disseminate that contribution to a wider range



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of scholars within his or her academic or scholarly community. There are several ways in which this can be achieved, which are not mutually exclusive. Successful PhD candidates are likely to have already ‘road tested’ their ideas at conferences and seminars, before they have completed their studies. We would encourage all scholars to engage with this kind of academic activity. Apart from the energising effects that discussing research with other people who are interested in similar topics can cause, there is also usually great interest from established scholars in the work of early career scholars within a particular (sub)discipline. This is because new scholars bring new perspectives, which keep the discipline fresh. So while it may seem daunting to present work to people that might be regarded as ‘the great and the good’ in the area, it is important to bear in mind that they ought, and are very likely, to be interested in what early career scholars have to say. Good scholars welcome new voices. We have included in the appendix some notes to help early career scholars to prepare for conferences, seminars and workshops. These include suggestions and recommendations not only for those preparing and presenting papers at such conferences, but also for discussants and participants. Some PhDs make excellent material for monographs. Particularly if the examiners have encouraged this, it is well worth undertaking the work necessary to change a PhD into a monograph. Not only will it provide significant evidence of career development (and employability or promotability), but it will also expose the ideas in the PhD to a wider range of readers, both those who read the actual book, and those who read any reviews of it that are published in academic journals. In our experience, however, it is extremely rare for a PhD as it stands to be publishable as a monograph. Usually some work, and often a reasonably significant amount of work, taking at least several months, and frequently more, needs to be undertaken to make the PhD manuscript ‘fit for purpose’ as a book manuscript, or to translate it into a series of articles. It is impossible to give generic advice in this respect. Each ‘book of a PhD’ or PhD monograph presents its own challenges. However, in order to begin to think about whether, and if so how, a PhD could make a successful monograph, PhD candidates may wish to consider the following. Doing so in consultation with someone else (a supervisor, an examiner, a peer) may be the most fruitful approach to this task. Think about three or four of the best monographs in your field. Why do you consider them to be the best? What are their key features? How do their narrative structures (the key linking ideas, and text that signposts those ideas) work? How do they begin? How do they end? In our view, endings, and, in particular, beginnings of monographs differ significantly from beginnings and endings of PhDs. Here are two examples of beginnings

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that we think are successful, each from a scholar at that time at an early stage in their career: First, from a work on EU law: 1  The Creation In the early days, the European Court of Justice was faced with two main challenges: to ensure its own effectiveness and the effectiveness of Community law in general while, at the same time, avoiding any involvement in national and political conflicts that might undermine both its own judicial credibility and the credibility of Community law. The steps taken by the Court in the interpretation of the Treaties and in the definition of its own role are largely a consequence of those constraints, as well as of the determination of its judges to accord to Community law a status distinct from that of national law. I will not address here the issue of how the Court has done this; instead, I will concentrate on how, in doing it, the Court has developed a certain conception of Community constitutional law and of its own legitimacy; how it adopted a particular form of legal reasoning; how it shaped, and was itself shaped by, the European legal discourse; and the impact this has had in the European Economic Constitution and Article 30 of the EC Treaty.4

We like the way in which the opening sentences of this example set the remainder of the book into the context of the historical sweep of legal scholarship on the European Court of Justice to date: that concerning the twin challenges of ensuring effectiveness of EU law while maintaining judicial credibility. The third sentence then tells the reader what is distinctive about this book: it explains the overall sweep of the book’s research agenda, its objectives, and how it intends to demonstrate these objectives (through a focus on Article 30 EC). And from the international law side: This book is about the relationship – past, present and future – between public and private international law. In the study of international law, a sharp distinction is usually drawn between public international law, concerned with the rights and duties of states with respect to other states and individuals, and private international law, concerned with issues of issues of jurisdiction, applicable law and the recognition and enforcement of foreign judgments in international private law disputes before national courts. Private international law is viewed as national law, which is and ought to be focused on resolving individual private disputes based on domestic conceptions of justice or fairness. Some acknowledgement of the international dimension of private international law problems is given through the role played by the concept of ‘comity’, but its status remains ambiguously ‘neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other’. In turn, public international law traditionally neglects the analysis of private international interactions and disputes, which are viewed as outside its ‘public’ and ‘state-centric’ domain. Thus, public and private international law are viewed as distinct disciplines, as two separate intellectual streams running in parallel. The central project of this book is to challenge this conventional distinction on both descriptive and normative grounds, identifying and building a con-

4  M Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution (Oxford, Hart Publishing, 1998) 7.



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ceptual bridge between public and private international law to replace the precarious connection equivocally acknowledged through the concept of ‘comity’.5

What is impressive about this introduction is that the author manages, in a short space, to set out the basic premises of previous debate, explain the terms and traditional thinking, and their limits. It then sets out the basic argument of the book, and how it differs from what has gone before. It is clear, concise and direct. It is worth thinking carefully about how a (PhD) monograph should begin, and how its ‘narrative sweep’ should unfold, leading to its conclusion, which should clearly encapsulate both what is original about the PhD research project, and why it matters. PhD candidates seeking to write a monograph based on their PhD may find it helpful to ask themselves to what extent, and how, the examples above, and other examples of monographs they admire, achieve this. While thinking about how a PhD would translate into a monograph, it is also worth considering who might publish it. In terms of choice of publisher, again it is worth thinking about which publishers have recently published monographs in similar fields, or taking similar approaches, or finding out where other PhD monographs have been published recently within a particular field. Having thought about developing a book from a PhD, the next step is to draw up a book proposal. Obviously different publishers have different requirements in this respect, and authors should inform themselves of the specific preferences of the chosen publisher. Here we focus on the Hart recommendations, as fairly typical of the field of legal scholarship. Hart Publishing’s advice on book proposals distinguishes between situations where the manuscript is already written, and those where it is not written. As a PhD will, in almost all circumstances, need to be revisited, and probably re-­ written for publication, it therefore falls half way between these two categories, so we discuss both here. In both cases, Hart request the following: 1. A brief author CV. It is a good idea to focus on examples of successfully preparing work for publication (book reviews, case notes, journal articles), and of carrying through a long project to the end. Keep the CV brief, but include all pertinent information. 2. A critical literature review, analysing the relationship between the book and other similar or potentially competitive books either published or in the course of being written. Understanding where a PhD or PhD monograph fits within the general field will make it easy to produce this literature review. Authors may have already done so in a ‘lit review chapter’ of the thesis and/or in response to the exercises suggested earlier in this book. 5   Alex Mills, The Confluence of Public and Private International Law: Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law (Cambridge, Cambridge University Press, 2009) 1–2 (footnotes omitted).

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If the manuscript is already written, Hart ask for the following to be included in the proposal: 1. The manuscript, saved as a Word, Wordperfect, rtf or PDF file, supplied as an e-mail attachment. Please use a legible font (10pt or larger).  This is self-explanatory. If PhD candidates intend to make changes to the manuscript, in particular in response to any comments of the examiners, they should indicate what these will be, both in a note (see below) and on the manuscript itself. 2. A note detailing any revisions you intend to make, the timetable for completing the revisions, and the estimated final word count. This is also self-explanatory. It is worth reflecting explicitly on the reasons for the proposed amendments. The timetable should be clear and achievable, taking into account other commitments. 3. In the case of a PhD thesis, a copy of your examiners’ reports. If the manuscript is yet to be written, Hart ask for the following instead of the manuscript and revisions: 1. A table of contents. 2. A brief description of the book (150–200 words). This is an opportunity to ‘sell’ the book. Make sure that it is clear what the central claims of the book are, how they are to be demonstrated, and what the ‘narrative sweep’ or ‘story’ of the book as a whole will be. 3. An estimated word count. This is also self-explanatory. If a PhD does not readily translate into a monograph – and many do not – the other way to ensure its ideas are disseminated more widely in the relevant scholarly community is to develop distinct parts of the PhD as journal articles. It may be feasible to encapsulate the core findings of the whole PhD in a single journal length piece. It may be feasible to sever specific chapters as stand-alone articles. Reflecting on the different orientations and preferences of different journals, as we have encouraged throughout the book, will assist PhD candidates in determining which journals to target. We recommend that, even if a piece of work has been lauded as part of a PhD, it is still well worth getting a fresh pair of eyes to look at the piece as a journal article. It may also help to bear in mind the generic questions that we have referred to throughout the book, and make sure that it is easy for a reviewer to answer them – especially the ‘why should a reader be interested?’ question. A question that will be central to any articles taken out of the thesis will still be: What is your methodology/approach? You will have to find ways to articulate this clearly, concisely and perhaps slightly differently for each piece you



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write (the latter point being only that articles should not contain huge chunks of identical material).

III  Thinking About the Next Project In spite of frequent feelings to the contrary during the writing of a doctoral degree, there is life after a PhD! At some point, perhaps once they have ‘milked’ their PhD for every conceivable publication, readers will want to leave behind their PhD and embark on the next project. There are no hard-and-fast rules about how to do this. To some extent, the way that someone’s professional life after a PhD develops will be a matter of luck – depending on which opportunities come along. There is a lot to be said about being at least partially open to these, rather than sticking rigidly to a predetermined research plan. However, research planning can help to ensure the achievement of longer term aims, and there are a number of considerations which could be taken into account.6 To what extent should someone build on what he or she has already done or branch away into something new? A successful PhD candidate may already be making a name for him or herself in the particular area of the PhD. That person’s CV may already evidence that specialism. One way to test this is to run a content analysis on the frequency of significant words in the titles of published work. Another, more fun, way of doing a similar thing is through Wordle (www.wordle. net/), which creates ‘word clouds’ from a source text. The advantages of building on that specialism include the opportunity to be invited to conferences and seminars to speak in the area for which one has become or is becoming known, and to publish invited chapters in edited collections as the ‘expert’ on a particular specialism. A specialist reputation may make it easier to persuade a funding body that one is the right person to carry out a piece of research. The disadvantages include becoming ‘pigeonholed’ as someone with only one research idea or interest, and the very human problem of boredom with a particular topic. One way of branching away is to think about research questions that are embedded in the methodological approach, and indeed in the methods employed to date, in a different substantive area to that of the PhD. The challenge there is to become the master of a new substantive area of law, without the luxury of time that being a PhD student implies. Another possibility is to investigate a closely related area, which allows the new project to build out from existing knowledge. But this may not satisfy in terms of the boredom test. Second, to what extent should an early career scholar adopt a collaborative approach to research or continue with the ‘lone scholar’ model which is more or 6   We are grateful to Matthew Hall for his ‘Thinking Aloud’ seminar at the University of Sheffield, spring 2010, which prompted the ideas in this section.

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less mandated by the PhD process? Lone scholarship has the benefits of complete control over the timings, process and outputs of a research project. Much legal scholarship of extremely high quality takes place within that model. However, it is worth considering the benefits of collaboration: in particular the chance to draw on a wider range of expertise, questions, assumptions, networks and expertise. Obviously, we are fans of collaborative scholarship, otherwise this book would not exist. Still, we suggest that a balanced academic CV will include some examples of each type. Third, it is worth thinking about the balance between long-running, large scale projects (for which it may well be worth seeking external funding) and shorter, ‘one-hit’ pieces. After a PhD, it may be enjoyable to do pieces of research that are conceived, carried out and published in a relatively short period of time. It may also be rewarding to write pieces for a range of audiences: the academic community, policy community or others. Again, we think that a balanced academic CV will include all types of pieces. Fourth, on a more practical level, it is worth considering who will be interested in a new project as it unfolds. In a PhD situation, the supervisor’s job was to provide that interested listening ear. Early career scholars may be fortunate enough to have a mentor in their department who is willing to play that role. However, many, if not the majority, of academics working in university law schools do not have anyone else in their law school working directly in their substantive area. So it is worth thinking about which conferences, seminars or workshops will provide an appropriate venue in which to road-test your ideas and receive critical feedback on work in progress, so as to allow it to be developed into high quality publications; and then making plans to attend these conferences, seminars or workshops or to organise one yourself. A ready-made audience for developing ideas may be closer at hand than the next scholarly conference in the field. Many early career scholars are fortunate to be able to carry their research into their teaching. Both postgraduate and undergraduate students make excellent audiences for new ideas. What begins life as a module, or a seminar within a module, may end up as a book, or a book chapter or journal article. Working with students as ‘summer interns’ can be an excellent way to spark ideas for a new project, and to begin to exercise academic leadership, through guiding those students in developing their research ideas. Don’t forget the questions in this book. Even if it is not possible to carry out research-led teaching, it may be that any teaching itself prompts reflection on research questions and puzzles that lead into your next project: this is often known as teachingled research.7

7   For an example of published ‘teaching-led research’, involving collaboration with four students in the first semester of their first year, see T Hervey, with M Reeves, H Rodgers, B Riding and T Roberts, ‘Annotation of Case C-303/06 Coleman v Attridge Law and Steve Law’ (2009) 31 Journal of Social Welfare and Family Law 309–19.



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IV  Reflecting on Positioning in the Academic Community Before we conclude the book, we would like to draw readers’ attention to two articles which we have found fruitful as a basis for promoting thought about ourselves and others as scholars within the academic community of (EU and international) legal research. They are both written in the context of US law schools, but many of the ideas expressed therein can be translated into other contexts.

READING

Y Kamisar, ‘Why I write (and why I think Law Professors generally should write)’ University of San Diego Research Papers Series, Research Paper 07/13, October 2005. Available in Social Science Research Network Electronic Paper Collection: ssrn.com/abstract=829285. W L Prosser, ‘Lighthouse No Good’ (1999) XXVIII Stetson Law Review 1017–31. Yale Kamisar reflects on the reasons that we commonly give as answers to the question ‘Why do you write?’, noting that none of them stand up to scrutiny. He points out, for instance, that writing is not fun, and that good writing involves hard work. After exploring George Orwell’s essay on why he writes,8 and noting several connections between the reasons given there and the practice of writing legal scholarship, Kamisar tells a story to explain why – ultimately – he thinks legal academics should write. He contrasts the experience he had in legal practice – where although he felt intuitively that there was something wrong with the interpretation of the law in a case in which he was acting for a client, he simply did not have time to follow up that intuition – with his experience as a young academic – where he was able to track down the reasons for his unease, think through each point to its end, and show, to his satisfaction, why the standard interpretation of a particular legal precedent was wrong. William L Prosser’s piece is overtly about the practice of teaching law, but it also offers insights that apply to legal research and scholarship. Slightly whimsical in style, it reflects on the career span of a ‘typical’ professor of law, and on how difficult it is to be satisfied with the ways in which we teach law.

8   George Orwell, Why I Write in The Orwell Reader 390, 395 (San Diego, Harcourt Brace, 1956) cited in Y Kamisar, ‘Why I write (and why I think Law Professors generally should write)’ University of San Diego Research Papers Series, Research Paper 07/13, October 2005. Available in Social Science Research Network Electronic Paper Collection: ssrn.com/abstract=829285 at page 12.

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What Next? Life After a PhD

V Conclusions The project that supports this book has been a journey of discovery for each of us, as we hope engagement with the book, and the exercises and reflections it suggests, will be for our readers. One of our aims at the outset was to assist PhD students working in EU and international law to complete their projects, and become better equipped for their future careers as legal researchers. But we believe strongly that the methodological development of a discipline is a matter for all its scholars, not simply a professional building block that we pick up early in our careers, as a kind of ‘apprenticeship’ to academia, and then never revisit. The project was therefore also aimed at us, its coordinators, and our peers; other scholars who work in EU and international law. The questions that we have asked throughout the book are questions to which reflective (legal) scholars return regularly throughout their careers. We have certainly benefited from the reflective processes involved in putting the book together, and we believe that our research is the richer for it. We look forward to the discussions ahead.

Appendices

Appendix 1 Workshop Materials We have reproduced here the materials that we used in either or both of the two workshops in the project which preceded this book. These activities and exercises may be used alone, with a supervisor, or in groups. We have included notes for supervisors or group facilitators. There are two types of activities (although the distinction may be somewhat blurred): activities designed to promote awareness of and reflection on your own approach or approaches; and activities designed to promote reflection on the research methodologies set out in our ‘list’ and discussed above in the book and illustrated or explained through the readings it suggests. We would strongly encourage any established academics using these activities with early career scholars and PhD students to actually do the exercises themselves, alongside the participants. Obviously these academics will need to modify references to ‘your PhD’ to references to (one of) their ongoing research projects.

I  Activities Designed to Promote Reflection on Your Own Approach(es) Instructions to facilitators: For the first two activities, and the signing out activity at the end, the role of a facilitator is essentially to keep the group on task, and to time. For the other activities, we have produced full instructions for both participants and facilitators.

A  Dunleavy’s ‘Dinner Party Test’ In our view, an outstanding ‘how to get a PhD’ book for (EU and international) legal scholars to read is Patrick Dunleavy’s Authoring a PhD.1 In the second chapter, Dunleavy describes the ‘dinner party test’, which is an incredibly useful tool in the early stages of research:

  Basingstoke, Palgrave Macmillan, 2003.

1

114 Appendices During the course of your doctorate there will be gruesome occasions, at dinner parties or drinks with strangers, when someone turns to you and asks what it is you do. Once you admit to working on a doctorate, your conversation partner’s inevitable followthrough is to ask about your subject. From this point on you have typically about two minutes to convince your normally sceptical inquisitor that you know what you are doing and that it is a worthwhile thing to be at.2

Quickly say (ideally to someone else) what you would say in this situation. You have two minutes. Make your PhD sound interesting and important enough to justify three years of your life. It is worth repeating the ‘dinner party test’ at regular intervals throughout your PhD or research project, as your understanding of what it is, and its key importance, is likely to change over the course of the project.

B  Imagining Your Research Project as a Picture Legal scholars often use metaphors in their analyses. These metaphors can provide useful insights into our methodological approaches – perhaps raising awareness of assumptions that we might unwittingly be making as we embark on our research projects. There is nothing inherently wrong with such assumptions but, as we observed in the book, the quality of our scholarship will be enhanced if we are able to articulate and scrutinise them. It is important in this regard to understand that metaphors are useful only insofar as they illuminate, they ought not to be taken as normative unless the relevant similarities are directly identified. Taking this observation further though, metaphors – which consist of text – can also be represented through pictures. Thinking in this way about your research project may help to illuminate some of the methodological bases on which your approach is based. If you had to represent your PhD by a picture or image, what would it be? Explain that picture to someone else. Use Google or other search engines to find an image that suits your idea of what your PhD is. Explain why. Listen to the metaphorical language that you use, and think about the assumptions that you are making, for instance about the nature of law or legal research. As we did not ask participants at the workshops to do any activity that we were not prepared to do ourselves, we prepared this picture of the research project on which the book is based:

  P Dunleavy, ibid.

2



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The picture represents the tangle of thinking that we – and PhD candidates – commonly experience at the beginning of a project. We hope that the project will help turn the tangle into a useful ball of wool, which in turn will be used, by participants at the workshop, to produce a beautifully flattering cardigan or jacket that is their PhD.

C  Statements Debate i  Instructions for Participants Get into pairs with someone else in your small group. You will need the sheet below with 20 statements about legal research. Pick the five most important statements to you. Pick three statements that are not important at all. Share your choices with your partner (20 minutes). Get into a group of four people with another pair. Each pair, choose one of your ‘top five’ statements. You and your partner must now argue that this statement should be in the ‘not important at all’ category. The other two people in the four must defend the statement (25 minutes). Then give the other pair a chance to pick a statement and reverse roles (25 minutes). In your groups of four, reflect in turn on what each person’s choices reveal about the methodological bases of their research project(s). Ask each other questions such as: Where are you on the expository-evaluative distinction? Where are you on the

116 Appendices internal-external critique distinction? What theories about law underpin your research interests? (20 minutes – five minutes to quiz each person about their views.) If at any point during this exercise you have extra time, add some more statements to the list.

ii  Instructions for Facilitators In a small group of around eight people, divide the group into pairs. You will need to have an even number of pairs for the activity to work. If, in order to achieve this, you need to have one or more groups of three, keep a close eye on those groups to ensure the dynamic is not problematic. Make sure each pair/three has the sheet with 20 statements about legal research. They are set out below. Ask them to follow the instructions on their sheet – which are: Pick the five most important statements to you. Pick three statements that are not important at all. Share your choices and the reasons for them with your partner (20 minutes). After 20 minutes, get each pair to team up with another pair. (This is why you needed an even number of pairs/threes in your group. If your group has fewer than eight people, you will need to be flexible here.) Again, ask them to follow the instructions on the sheet – which are: Each pair, choose one of your ‘top five’ statements. You and your partner must now argue that this statement should be in the ‘not important at all’ category. The other two people in the four must defend the statement. (25 minutes). Then give the other pair a chance to pick a statement and reverse roles (25 minutes). After 25 minutes, remind the groups to change roles. After another 25 minutes, move them on to discussing the last part – for 20 minutes. In your groups of four, reflect in turn on what each person’s choices reveal about the methodological bases of their research project(s). Ask each other questions such as: Where are you on the expository-evaluative distinction? Where are you on the internal-external critique distinction? What theories about law underpin your research interests? (20 minutes.) If at any point during this exercise you have extra time, add some more statements to the list, and discuss them.

iii Statements 1. People doing legal research should find out what the law is for a specific situation that has not yet arisen. 2. It is interesting to reconcile new cases (judicial decisions) with previous cases, and see whether the newer cases overturn older cases, or can be distinguished from older cases.



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3. It is interesting to see whether one body of law fits with another body of law, where they overlap in regulating something. 4. The constitutional pedigree of a legal rule is extremely important. 5. Every human being has inherent entitlements to be treated with equal dignity and respect, and the law ensures that this is the case. 6. It is interesting and important to understand the ways in which laws affect different groups in society. 7. It is interesting and important to understand the ways in which laws affect people who live in different parts of the world. 8. Law is about maintaining existing power relationships, and the task of legal research is to expose this. 9. It is interesting and important to test laws against the standards that they set for themselves. 10. It is interesting and important to see whether laws meet their stated aims. 11. People doing legal research should be sensitive to the ways that any new proposals they make will fit with existing laws. 12. People doing legal research should come up with imaginative new laws. 13. People doing legal research should ‘think outside the box’ and imagine new ways of arranging legal systems. 14. Law is all about texts, and texts can be interpreted in many different ways. Legal research should be aware of this. 15.  Law should promote the most efficient allocation of material goods in society. 16. It is interesting and important to understand the political contexts in which law is made. 17. You cannot understand the law unless you understand the society to which it belongs. 18. Legal researchers should read non-legal literature. 19. The most important thing for legal researchers to read is the law itself. 20. To understand where the law is going, legal researchers have to understand where it has been.

D  Thinking Hats Exercise (most useful for starting a new project) i  Instructions for Participants This exercise is based on Edward de Bono’s Thinking Hats. The basis of the thinking hats idea is that it is more efficient to focus on only one type of thinking at a time, in tackling a complex problem. De Bono explains it thus: An antelope grazing in Africa hears a sound in the grass. Immediately all the neuronal clusters concerned with danger are preactivated so the lion is recognised as soon as it emerges from the grass, and the antelope is able to escape. Such presensitization is a key part of how the brain works and why it is so efficient.

118 Appendices It is not possible to be presensitized in different directions at the same time just as it would not be possible to design a golf club that was the best club for driving and at the same time the best club for putting. That is why the Six Hats method is essential. It allows the brain to maximise its sensitivity in different directions at different times. It is simply not possible to have that maximum sensitization in different directions all at the same time.3

Think about your PhD thesis (or research project) using the categories of thinking on the sheet supplied. Concentrate on only one category at a time. Do not spend more than five minutes on each category – your group facilitator will tell you when it is time to switch from one type of thinking to another.

ii  Instructions for Facilitators Law PhD students are unlikely to be familiar with de Bono’s ‘Thinking Hats’ concept. You will therefore have to introduce the idea, and perhaps ‘sell’ it somewhat. If you make it clear that you will also be doing the exercise at the same time as the participants, this may become easier. Take enough time to explain the key features of each ‘Thinking Hat’. Explain that all of the different types of thinking are important, but that focusing on just one at a time helps to bring it more sharply into focus.

iii  Thinking Hats Exercise Sheet (The table is based on ideas presented in Edward de Bono’s Teach Your Child How to Think, Harmondsworth, Penguin, 1994.) Think about your PhD thesis (or research project) using the following categories of thinking. Do only one type of thinking at a time. Do not spend more than five minutes on each category. Hat

Explanation

Key Questions

White Hat

• focuses directly on the available information • facts • neutral information • not argument or making suggestions • emotions/feelings • hunches/intuition • likes and dislikes

1. What information do you have? 2. What information is missing? 3. How will you get the information you need? 1. What do you like about the research question(s)/ your answers to these? 2. How do you feel about them? 3. What don’t you like about them?

Red Hat

Ideas

  From E de Bono’s Six Thinking Hats (Back Bay Books, New York 1999), 1.

3



Appendix 1 – Workshop Materials Hat

Explanation

Yellow • benefits of an idea – full of Hat hope • logical hat so the reason behind the hope must be given Green • ‘active’/creative hat Hat • used for creative thinking • concerned with proposals, suggestions, new ideas, new alternatives, new solutions and inventions • emphasis is on ‘newness’ Blue Hat

• overview • above the thinking/looking down on the thinking • thinking about thinking!

Key Questions

119 Ideas

1. What are the benefits of the approach? 2. Why should it work?

Key questions should focus on: 1.  Exploration of the ideas 2. Proposals and suggestions 3. Alternatives 4.  New ideas 5. Provocations 1.  Where am I now? 2.  Where am I going? 3. What new questions have I got? 4. What assumptions is my thesis based on?

NB The Blue Hat here is significantly adapted from de Bono’s Blue Hat thinking, especially as employed in commercial/problem solving settings. For the purposes of this workshop, the Blue Hat thinking is supposed to encourage you to think about the thinking you do with the other ‘hats’ on, to see where you are with your research project overall. It is also designed to help you to focus more clearly on your methodology, which we might describe as the collection of theories, concepts or ideas related to legal research that inspire your legal research project.

II  Activities Designed to Promote Reflection on ‘the List’ A  Questions on the Legal Research Methods You will need flip chart paper, post-it notes and pens. Allow 40 minutes.

i  Instructions for Facilitators Divide the group into pairs or pairs and a three if you have an odd number. Ideally the pairs should include people who have read at least some of the readings on the same approaches on the list of research methodologies in EU and international law. Ask the pairs to share their answers to the following questions (the generic questions we use throughout the book):

120 Appendices 1. What is/are the research question(s) the author asks in this piece? 2. Why should a reader or publisher be interested? 3. What sources/data were used? How were they used? 4. What assumptions does the author make about law and legal research? 5. What type of research questions can this approach answer? 6. What are the benefits and drawbacks of applying this approach? 7. What would the approach look like, if applied to the substantive area of your PhD? Each pair should prepare a sheet of flip chart paper, headed with the approach, with notes on post-its for the answers. These will be useful for the next exercise.

B  Venn Diagrams You will need flip chart paper, post-it notes and pens. Allow one hour in small groups for this activity; and one hour for feedback to the whole group if relevant.

i  Instructions for Participants A Venn diagram is made up of two or more overlapping circles. It is often used in mathematics to show relationships between sets. In other contexts, Venn diagrams are useful for examining similarities and differences.

The facilitator of each small group will pick two of the approaches outlined in the book. These will reflect the approaches that you have been discussing in your pairs.



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First you need to jot onto (separate) post-it notes any ideas, concepts, people, quotations, questions, etc that are associated with each of the two approaches the group has been given. You can work individually, in pairs, or as whole group at this stage. If you jotted down answers to the generic questions on page 6 of the book, you may wish to use these. Working as a group, you then need to make a Venn diagram of the two approaches, showing where ideas, etc are in common to the two, and where ideas, etc belong to each. There will be time at the end for feedback to the whole group.

ii  Instructions for Facilitators Decide which approaches your group will be looking at for the Venn diagrams activity – you should have an idea of which approaches they are interested in/have read up on from the previous exercise. Introduce the Venn diagrams activity – your group is now working together as one group. A Venn diagram is made up of two or more overlapping circles. It is often used in mathematics to show relationships between sets. In other contexts, Venn diagrams are useful for examining similarities and differences.

This first part of the exercise needs to be done quite quickly – not really spending a lot of time on discussion, just quickly getting ideas down – brainstorming. Pick two of the approaches outlined in the book. These should reflect the approaches that you have been discussing in your pairs. Ask the group first to jot onto (separate) post-it notes any ideas, concepts, people, quotations, questions, etc that are associated with each of the two approaches

122 Appendices the group has been given. You can work individually, in pairs, or as whole group at this stage. You may wish to use the notes you made for the first small group activity. Encourage the group to be quick/brainstorming here. This next part takes longer – the group needs to decide what goes in each section (A, B, and in particular C) of their Venn diagram. This will involve some discussion. Working as a group, you then need to make a Venn diagram of the two approaches, showing where ideas, etc are in common to the two, and where ideas, etc belong to each. If you have made one Venn diagram and there is still plenty of time left, make another one! Feedback to the whole group on the Venn diagrams. Nominate an individual (or individuals) as spokesperson(s) for your group.

C Quiz i  Instructions for Participants There are 20 pictures or statements around the room. Spend some time wandering around the room as you have your coffee and chat with participants looking at these and identify which theory/method/approach each should be identified with, and say why. We had prizes (of the glory/kudos sort – unless the institution sponsoring the event is generous) for the following: • The entry that most coincides with our views • The entry that we disagreed with the most (if explanations were given) • The most inventive entry • The answer that made us laugh the most You may enter the quiz as an individual, as a pair or as a small team (up to four people).

ii  Instructions for Facilitators We had great fun finding the pictures for our quiz. We used Google images and searched for key words that, for us, encapsulated the different methodologies on the list. These included ‘oppression’; ‘feminist’; ‘thinking’; ‘Treaty of Rome’; ‘UN’ and so on. For fun, we also included pictures of ourselves.

III  Signing out Activity Share with your group one thing that doing the exercise or exercises revealed for you.



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As a group, discuss what new questions you have for your research (either your PhDs, or your longer term career plans) after doing the exercise or exercises. Or which of your existing questions have been reinforced? Put four key points onto your flipchart to share with the whole group.

Appendix 2 Notes for Participating in Workshops, Seminars and Conferences Adapted from notes developed for the second Cohort of the European Political Economy Infrastructure Consortium (EPIC); with thanks to the Directors of the project: Bob Hancke’ (LSE); Andrew Richards (Instituto Juan March); Howard Machin (LSE) and Salvatore Pitruzzello (Tulane University). The notes below are intended to be useful for writing a paper and presenting it at any conference or workshop.

I  Guidelines on Writing a Paper A  Starting Out You may find it helpful to address the following four inter-related matters: 1. research question (what you want to find out in the paper) 2. method (what you actually do to answer your research question) 3. data (what data or materials you have used to do so), alongside an awareness that these three are underpinned by your 4. approach (theoretical basis or methodology).

i  Research Question/Puzzle Ask yourself (and jot down the answers) • What is the problem/puzzle/issue that you want to tackle? A scholar in international or EU law might, for instance, be seeking to analyse how a particular legal text came together; or to determine what the effects of a given text or set of texts might be; or to understand how a particular policy area is regulated; or to explain the mechanisms of a given (legal) institution or set of institutions, and so on. • Express that problem as a question, or a series of related questions. Be as specific as you can. This exercise will focus your thoughts onto the topic for this paper, as opposed to all the possible topics that you could tackle in your area of interest. • In a single paper (as opposed to a book or thesis length piece of work), you can



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only meaningfully tackle one central question, possibly with a related follow-up question. Pick the one question that you want to focus on. • Why is it important or interesting to answer this question? Why should a reader or publisher be interested? It might be important historically, politically, theoretically, conceptually. It might be important because of what has already been written in the area. It might be important because of a recent legal or policy change, or a new social or political phenomenon.

ii Method • How do you propose to answer your research question? How are you going to examine/solve the problem/puzzle/issue? • What are you going to actually do with your data? Be more specific than ‘analyse it’ – what are the intellectual processes associated with your analysis?

iii Data • What data are you going to use? Texts? Empirical data of a quantitative (for example, statistics) or qualitative (for example, interviews) nature? • Are you going to use case studies (specific instances of the phenomenon you are interested in)? How will you determine which ones? If you are comparing, in what ways are the cases similar or dissimilar with respect to the issue you want to examine? • What is the timeframe for your data? Why is this timeframe appropriate? • How will you get hold of your data?

iv Approach • What kind of research question are you asking? What are you trying to explain? • Is it an expository or evaluative research question? • What approach (theoretical position/model/methodology), or combination of approaches, is suited to that kind of question, that method and that data? What is the simplest approach that will serve your purposes?

B  The Writing Process i Structure Every paper should have a structure which is clear, set out in the introduction, and explicit as the paper unfolds. From this, you can create a set of headings and bullet points which show how the material presented in the paper will be organised. Anyone reading the paper ought to be able to recreate this set of notes from what you have written. Say very clearly in the beginning what question you are asking in the paper. Say why it is important to answer the question. Relating your question to a current

126 Appendices policy issue, a new piece of law or law reform process, a big historical problem, a ‘hot topic’ in the literature, or something of that sort, is a good way to open a paper. Make sure your research is relevant and make sure you make it clear that it is relevant by setting it up as an important, real-world question. Then say how you will go about answering your question (what are your methods, what are your data?). In a short paper, by the end of the second or third paragraph the reader should know what you are trying to find out about and how you are going to do that. In longer pieces of research, such as dissertations, you can take a bit more time, but then the reader should know what’s going on by the middle of the second page. Such a set-up provides the reader with all the information to evaluate the claims you will substantiate in the body of the paper. Readers rarely fundamentally disagree with what you’re saying, but you lose points for not saying whatever it is you are trying to say in a clear and transparent manner. This set-up also assures that the reader does not get frustrated by having to read until page 30 to figure out what the question of the paper was, and then having to reinterpret the material read up until then in light of the belated revealing of your question.

ii  Provide ‘Road Maps’ or ‘Sign-posting’ Text The reader of your paper should always know where he or she is in the paper and in your plan for the paper. This means summing up what’s been done and taking a glance at what’s to come. One good way of doing it is by providing a short summary and ‘what’s to come’ at the end of every section that covered an important point (that is, at least the introduction and the body of material, but sometimes also between subsections). If you discover afterwards that there is too much of this road-mapping or sign-posting going on, you can always cut some out.

iii  Answer the Question You Have Chosen This is a golden rule for any paper. An often fallen-into trap is to give a brilliant answer to a question which is subtly different to that asked. If you have done your thinking about research question, method, data, and approach, all four should hang together and create a seamless argument. If you change any of them, in particular if you subtly change the question, then your seamless argument will unravel. One useful tip is to write the research question on a post-it note and have it on your computer screen or somewhere visible, as a constant reminder, as you write.

iv  Situate Your Paper in the Broader Literature ‘Gaps in the literature’ are manifold and, in themselves, are not necessarily good reasons for doing research. The literature exists to help you understand an issue, but not more than that. When you are trying to think through what you want to say, it is sometimes worth trying to ‘forget the literature’ – although of course



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frustration with the literature’s deficiencies, as you perceive them, may provide inspiration for a new paper. After that, use literature reviews very instrumentally. They are there to position your paper in a wider debate on the question you are trying to solve. They are not proof that you have read ‘everything’ there is to read (you have not done so, this is an impossible task). They should definitely not reflect your search process in the literature (very few people are interested in that). This implies that you have to cut the literature review down to its essentials, and take it from there. Literature reviews are not round-ups of the literature, but exercises in analytical thinking. Put differently, you should critically evaluate the existing literature (and not simply summarise it) in a way that takes you into your own research question and approach.

v Parsimony A good paper only answers the question it set out to answer, and it does so with as little material as possible. All the rest is superfluous material, which distracts the reader from your main point. Evacuate it, since it makes the paper harder to read. It is not necessarily lost: you can always turn it into the basis for another paper.

vi  Written Style The paper should be as easy to read as possible. Try writing in a language which can be understood by any intelligent undergraduate. The point of writing, as well as speech, is to transmit ideas. Where the language used gets in the way of that it has, at least in some ways, failed. Where you can, use short, simple words. Furthermore, words have precise meanings and should be used succinctly. Avoid overly ‘academic’ language: most complex arguments can be said in simple words. Too many difficult words annoy readers, and they often leave the impression that the author is simply showing off his or her erudition. If you feel that an argument requires complicated language, bear in mind that this may mean that you are not entirely clear in your own mind about what exactly you want to say. The difficult words allow you to obfuscate (hide might be a better word here) that lack of clarity. Use short sentences. Any sentence longer than four typed lines is suspect – divide it up. The better a person understands a topic, the more simply he/she can express it. Each paragraph should contain only one idea. More than one idea per paragraph is apt to confuse the reader, especially if the second argument redefines, confines, circumscribes or (in part) contradicts the first. The best way to resolve this is to break up paragraphs and organise the transition between them. Paragraphs should not be longer than 15 lines. If they become that long, this is often a sign that you are trying to put too much, be it description, analysis, or critique into one paragraph, and you should split the paragraphs.

128 Appendices

vii Referencing As a rule, a references should be used to indicate the source of primary materials, such as legislation, case law, treaties, policy documents, tables and graphs; factual statements that are not common knowledge; and particular support in the literature for a contested argument. Your own argument, in contrast, can build on some existing literature but there the logic of what you are trying to say is far more important than any sources you might come up with. Try to avoid overreferencing secondary literature in your papers, especially the shorter ones, references are for referring to those whose work you have relied on, not excuses for bibliographies to be displayed. Of course, you must always cite your sources, and not pass off the work of others as your own. Always cite and list the literature you used; it shows the reader where you are coming from in assembling material for the paper. There are standard ways of referencing the literature you used, and you should get acquainted with them. One way is to look at the back cover or website of journals, where the instructions for authors almost invariably list reference styles. Many publishers and Journals now use the Oxford Standard for Citation of Legal Authorities (OSCOLA) system (available at www.law.ox.ac.uk/published/oscola/oscola_2006.pdf). References should include at least the author, book title or journal title, place of publication and publisher (for book), year of publication, and if necessary page numbers. Legal academic writing usually uses footnotes for references. (1 S Van Evera, Guide to Methods for Students of Political Science, Ithaca NY, Cornell University Press, 1997.) One common social science style is to give author, year and if necessary page numbers, in brackets in the text and the full reference in the bibliography afterwards: (Van Evera 1997); Van Evera, Stephen 1997. Guide to Methods for Students of Political Science. Ithaca NY, Cornell University Press. It is not really important which style you choose. But it is important that you adopt the style consistently throughout the paper. Database and bibliography software such as Endnote also offers a host of conventional pre-defined styles which you can simply import into the document.

viii  Footnoting Other than for References Use textual footnotes that are making comments or arguments sparingly. Either something is important, in which case it should find a place in the text; or it is not, in which case it should not be included at all. Footnotes may, though, say something which sheds additional light on what you just said but might break the flow of the text if added in full. Generally speaking, if a lengthy textual footnote seems important, it is more likely that the structure of the piece needs tweaking to integrate that insight more directly into the piece than the footnote needs to be included as is.



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ix  Written Presentation of Your Work Use a large font (for example, 12 point Times New Roman), at least 1.5 spacing on the computer, and leave relatively wide margins (at least one inch/2.54 cm) for comments. The world’s forests may have their rights, but so do the eyes of those whom you will ask to read your paper.

C  Respond to Feedback Accept that the first draft of a paper given at a conference is exactly that, probably rough, but likely to be full of interesting possibilities. The best thing to do is to make the paper a good one and to bring out all the possibilities the paper has. This means that if you are serious about your work, you should rewrite the paper several times. This involves time management and planning. You will need to build in enough time to leave your paper to ‘go cold’, before you can come to it again with fresh eyes. You should also take the comments by colleagues, your supervisor and any others to whom you give the paper for their views not simply as hostile critiques of you or your work, but as suggestions intended to make the paper/project better. Many papers would in fact be a great deal better if they were read by others and reworked fully addressing the comments received. Almost all published academic papers go through at least three fully revised versions, and most have existed in many more versions. The rule of thumb of one of this book’s authors is 10 revisions, over the course of 8–12 months. You may want to give your workshop paper to a colleague or friend before you give it to your discussant. He or she will help you sort out what does and does not work in your paper. Again, it is necessary to build in time for this process.

II  Guidelines on Giving a Presentation Think about your audience. What prior knowledge of your topic can you expect them to have? Are they specialists in your field? Are they within your broad dis­ cipline (law), or is it an interdisciplinary event? What do you have in common with them, in terms of interests, approach/methodology, substantive knowledge? What kind of a conference or event is it? Your presentation should take into account the answers to these questions. (So, for this workshop, what participants have in common is an interest in furthering their understandings of theory/approach/methodology in EU or international law, or both, and how these apply in specific research projects. In your presentation, therefore, you should focus on your approach, your situation within your discipline of EU or international law (or both), how you engage in your

130 Appendices project with the issues arising for your approach(es), and so on. You might look at the questions at the beginning of the preparatory notes for inspiration.) Think about the structure of the presentation. The best way is to start by posing the question that organises your talk clearly up-front, then say how you will answer it and why (in one sentence), and then answer it, fleshing out what is necessary along the way. Your answer and the material you give to support it should be limited to that only, made clearly and persuasively, and with only the detail that is necessary to make your point (the rest can follow in the discussion). Concentrate on getting a few simple points across. You only have a limited time, and you should realise that it is impossible to get everything across. It makes sense, therefore, to reduce your presentation to a limited number of points, which are all directly relevant to the question and topic of your presentation and your overall argument and which are summed up as bullet-points in the conclusion. Avoid too much detail. Do not overload the presentation with details. Many details can be summarised in one or two snappy sentences (try using bullet points, this should help you to be more precise and succinct) and that should do. Additional detail can always be given during the discussion afterwards and/or find its way into the handouts or overheads. Encourage discussion. It is important to remember the function of your presentation: it should encourage discussion, which then becomes a vehicle for developing a collective understanding of the questions and the topics among those present. It is not meant to give a summary statement on the topic. One way to do that is to make a clear argument in the presentation, another is to actively engage what others might think about the question you answer, or you might want to argue why particular positions do not make sense. Discussion is always helped by clear and transparent arguments and statements. Consider using overheads or power-point to present data. Visual aids are a useful way of helping you with your talk. They can serve two functions. If you speak from notes (but do not read out aloud), you may use the overheads or powerpoint slides as nudges for yourself. They will allow you to walk around while talking. The other purpose is to use them to present data. Overheads or slides with examples, graphs or tables help us see what you mean without you going into detail yourself. If using a table, mark clearly the figure(s) you want the listeners to concentrate on. Text in overheads or on slides should be large enough for everyone to read them (at least 24 pt). By implication, limit the text to bullet points with a few words. Powerpoint can be effective, but too much animation can be distracting, so avoid animation overload, and do not have a huge number of slides. Speaking from notes versus reading. By far the best way to give a talk is speaking from notes. It is more natural, and you can modulate your talk to the audience. However, it requires that you are confident about speaking in public and that you know your subject matter sufficiently well to be able to do so.



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Reading a text is acceptable as an alternative solution, but then try and write (and read out) spoken English, that is, with interjections that talk to the audience, the use of ‘you’ in active sentences, and so on. Never forget to speak slowly, limit your text to a few points and on form as well as on contents. Keeping the attention of the audience. A few simple tricks to keep the attention of the audience without doing anything silly: • look many of them in the eyes (rather than looking only at one person, or looking up at the ceiling or some indeterminate point behind them); • walking around (especially if the group is sitting in a U-formed table or a circle) and acting as if you are talking to some members of the audience individually helps to make them feel involved and increases their ability and willingness to come along with you; • a small aside or joke at the beginning always helps to break any tension; • a picture or cartoon on your overhead may revitalise the audience towards the end. Handouts. Handouts can be useful. They are especially effective if they provide data and graphs, since they add to what you have to say, and if the data are good, then someone can reconstruct large parts of your argument simply by looking at them. For more ‘qualitative’ talks, handouts with the main points are useful, since they allow for a reconstruction as well. However, make sure that the hand-out does not deflect attention from your talk (it might be better to give a handout after the talk). Above all: Keep to time. Giving a talk at a workshop or conference, where you are part of a panel, really is a ‘zero sum game’. Time that you take beyond your allocated time is taken away from other speakers, discussants, and the audience, all of whom have interesting things to say, that may help you to develop your ideas. To speak for longer than you have allotted to you is effectively to say ‘I am more important than the rest of you’. It is rude and inconsiderate. As a very rough rule of thumb, 2,500 words written out in full takes about 50 minutes to deliver, at a reasonable pace. So if you are speaking for 15 minutes, you only have about 750–1,000 words. This does vary depending on the speaker, the audience and the topic, so do adjust it to suit your own situation.

III  Tips on Being a Paper Discussant Being a discussant of a paper is an important task and you should therefore take it seriously: you will set the stage for the discussion that follows and your comments will usually be the most thought-through reactions that the author receives on

132 Appendices that paper. Your comments should concentrate on making a paper better: having a paper discussed at a workshop is an important formal moment in the process of writing a paper, and you are the institutional vehicle for that. When discussing a paper, always be collegial. There are two simple rules to follow: do not do unto others what you would not want to have done unto you; conversely, give the type of comments that you would like to receive yourself. Think positive. Always start your intervention by pointing out what the paper has tried to do and how it helped you see more clearly, moved a debate forward, provided new and interesting empirical material, came to a surprising insight, etc. Almost all papers are potentially good, and it is your duty to make sure that that comes out. This implies that you always start by reviewing a piece of research on its own terms, and see how well the paper accomplishes what it sets out to do. A critique of the position developed in the paper can wait until after you’ve done that. Differentiate your critique. By and large, a paper can be evaluated using three criteria: the central argument (the research question and the approach according to which it was answered), the method (including the selection and use of data), and the structure or organisation of the paper. If you differentiate your critique along those lines, you will be very helpful to the author in later stages. • Central argument Try to capture the central argument of the paper in a few words. Often the author benefits tremendously simply by having you re-state what he or she was trying to say. You may, in fact, use this to tell the author that there is a bigger or slightly different argument hiding in what was written. Only after that does it make sense to point out which objections you may have to the argument. This may take the form of pointing out other positions in the debate that the author did not acknowledge, a head-on critique of the central methodological claim of the paper, with which you disagree, or the presentation of other facts that you have and which fit rather uneasily with the point of the paper. The point of this is not to show that you are smarter than the author, but to tell him or her which weaknesses absolutely should be addressed to move on with the paper. • Method Explicitly address issues of design and method. Again, the first step in this process is to (re)state what the author is trying to do, assess it on those terms. Once you have done that, you can start to criticise weaknesses in the method or data employed. Try to avoid thinking about a paper with a textbook version of a method in mind: very few research designs actually follow one ‘textbook’ method. Instead, use the ideals in the methods classes and textbooks as broad reference points, and think through how the paper could be revised so that the method, data and research question ‘fit’ better. Always be helpful in a practical sense. Think



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through, in a virtual or real discussion with the author, how problems with method could be resolved. If you disagree with the method, either in principle or for this particular research question, make clear why you disagree. Method is important, but avoid getting bogged down by it. • Structure of the paper Often the weakest part of conference papers is their organisation: papers were written with one particular outline in mind, and as the paper evolved, some of that got lost (perhaps because the material did not lend itself to that any more). As a discussant, you can be very helpful to the author if you help him or her to restructure the paper so that it more accurately reflects the logic of the argument. On organisational issues, you can be very tough: after all, this is the main instrument for the author to make the point, and it is usually the dimension of a paper which is most easily revised. A poorly organised paper is a difficult paper to read, and if the argument is worthwhile then that is a pity. Do not dwell on small points. Page-by-page comments are good for email communication, but look pedantic in a public discussion. Only if the paper is full of contradictions does it make sense to (carefully) point that out to the author. Discussing small points only makes sense, really, if they are vital for the paper as a whole. But then they can hardly be called ‘small’ points. Further research. Your comments should alert the author to the wider implications of the argument, and by raising those you perform a valuable duty to the rest of the audience and your discipline as a whole. Discussing those implications is best done as ‘what the next paper should do’ -type points in your presentation. If you can link that to other research you know, you again perform an important function in your discipline by drawing together these different strands. Be succinct. Do all this in less than 10 minutes – this implies that you concentrate on the two or three major points in the critique. Choose from among the criticisms you have between the absolutely crucial points and the rest. The discussion afterwards will give you time to develop any other arguments. Write out the comments for the author’s purpose. Send the author an email with a written version of your comments. You will be more economical when you are forced to write them up, and discover where you were, perhaps, exaggerating your criticisms. Nothing disciplines and organises thinking as much as writing. Giving the author written comments is also a sign that you took the paper seriously and it will therefore always be appreciated.

134 Appendices

IV  Participating in Discussions During Workshops, Seminars or Conferences Participation in workshops, seminars or conferences is a skill that is learnt over the years. Think about these events as providing a place which allows you to explore a topic on your own terms (individually and collectively as a whole). Workshops, seminars and conferences are interactive. A group of scholars can do things which are impossible individually, such as pursuing specific detailed questions, exploring topics which are of particular interest to a discipline, and discussing the merits of different positions on a topic. Joint learning. During workshops, seminars and conferences, participants learn collectively by presenting material, asking each other questions on the topic of the event, and listening and responding to the answers. This means that you should not think about ‘getting the answer right’ – since there is probably no single correct way to answer a question – and not worry about saying something which might be wrong: you can only learn if you see the weakness in your own thoughts and see how they might be improved. Preparation. To some extent you can prepare for a workshop, seminar or conference just as you would prepare for an undergraduate seminar. In that context, you might at least glance at the literature on the reading lists, figure out for yourself what the debate seems to be about and write that up in a few points, and then make explicit to yourself what you do not understand, what you disagree with, and how you might construct an answer to the question(s) of the seminar. Few discussions work well if you have not worked out your views on the issue in advance. If you have done that, you will realise that it is easier to join in the discussion at the workshop, seminar or conference, even on points that you did not prepare quite as extensively. The next generation! Start a workshop, seminar or conference with the attitude that the more the chair or other senior academics intervene, the less successful the event is. In principle, the participants should do all (or most of) the talking amongst themselves, and the role of the chair is primarily to make sure that the discussion keeps to time, does not derail and to wrap up loose ends from the discussion. Good luck!

INDEX AHRC-funded research project   purpose, 2   workshop materials     see Workshop materials   workshops     Nottingham (2007), 2     Sheffield (2008), 2 Comparative law    common terms/different meanings, 28    comparative law research, 28    comparing like for like, 28, 29    EU law/international law, 8    gender discrimination, 30    human rights, 29, 30   methodologies, 28    national legal systems, 8, 29 Constitutionalism    constitutionalist/pluralist divide, 50    constitutions as outcomes, 50    dispute settlement, 53    EU constitutionalist scholarship, 51   EU law     collective reflexivity. 53     critical methodology, 53     human rights, 54     legal order, 53     pluralist approach, 54     political reflexivity, 53     political system, 53     self-authorisation, 53     societal integration, 53     State tradition, 53    human rights, 50, 51, 54    individual freedom, 53   international law     allocation of responsibility, 52     cohesion, 52     effectiveness, 52     external perspective, 54     international legal system, 52     language of constitutionalism, 54     pluralist approach, 54     UN Charter, 52, 53    international legal scholarship, 52    levels of national/EU/international law, 50    process of constitutionalisation, 50   security, 53    State obligations, 50, 51

  transparency, 53   values/principles, 50 Constructivism   EU law     constitutional law, 83     European integration, 83     legal positivism, 83    fundamental idea, 81   international law     legal positivism, 82     natural law theories, 82     tenets of constructivism, 82   meaning, 81    relevance to law, 81    research questions, 82     see also Research questions    social processes, 82    social sciences, 81 Cosmopolitism   basic tenets     egalitarianism, 46     individualism, 46     universalism, 46    coercive use of force, 49   EU law     cosmopolitan polity, 48, 49     democracy, 48, 49     human rights, 49     rule of law, 48     self-interest, 49     supranational nature, 49    idealistic theory, 47   international law     constitutionalism, 48, 50     cosmopolitanism/libertarianism, 48     global institutional level, 48     humanitarian intervention, 49     institutional reform, 48     sovereignty, 48    Kant, 46, 49    legal/political approaches, 47    moral worth, 46    origins, 46, 47 Critical approaches    critical jurisprudence, 60    Critical Legal Studies, 60, 72, 73    critical perspectives on law, 60    Critical Race Theory, 60    critical theory, 71–5     see also Critical theory

136 Index Critical approaches (cont.):   Feminism, 63–6     see also Feminism    legal research projects, 60   Marxism, 60–3     see also Marxism   meanings     critical, 59     critical theory, 59, 60     critique, 59, 60    modern critical perspectives, 60    Postcolonial theory, 69–71     see also Postcolonial theory    Queer theory, 66–8     see also Queer theory    research questions, 60, 61     see also Research questions Critical theory    Critical Legal Studies, 60, 72, 73    definition, 71, 72   EU law     citizenship, 74     ECJ jurisprudence, 74     sexuality, 73, 4    international law, 72, 73    international legal theory, 73   post-structuralism, 72 Discussions   see Participation in discussions Dunleavy’s Dinner Party Test, 113, 114 Environmental law    Best Available Technique (BAT), 87, 88    EU law, 87, 88    legal scholarship, 7, 8 EU law    absence of theory, 11, 19    administrative law-making, 56   asylum-seekers, 69    citizenship, 45, 46, 74, 92, 94    constitutionalism, 20, 32, 43, 44, 53, 54, 92     see also Constitutionalism   constructivism, 83     see also Constructivism   cosmopolitanism, 48, 49     see also Cosmopolitanism   democracy, 46, 48, 49, 71   environmental law, 87, 88   EU Treaties, 63   feminism, 65, 66, 98     see also Feminism   free movement, 99   gender issues, 30   immigration, 92   institutional distinctiveness, 19   integration theory     constructivism, 21

    functionalism, 20     institutionalism, 21     intergovernmentalisation, 20     neo-functionalism, 21    internal market, 66    legal integration, 21, 45, 46, 80, 83, 92    legal positivism, 40, 41     see also Legal positivism    natural law, 36, 37     see also Natural law    new governance, 20    overseas territories, 96    rule of law, 48    sex discrimination, 6    Single Market, 63    socio-legal research, 19    special nature, 20, 40, 49    trade relations, 90 EU/International law scholarship    comparative element, 28    constitutionalism, 20, 32, 53, 54     see also Constitutionalism    environmental overlap, 22, 23, 25   feminism, 32     see also Feminism    institutional incorporation, 22–4    international law commitments, 23    international law relationship, 23, 24, 26    intersystem recognition, 22, 23   jus cogens, 22    levels of interaction, 22    normative coordination, 22, 25   postcolonialism, 32     see also Postcolonial theory    process of development, 27   progress, 27   research methodologies     academic influences, 31     critical distance, 31–3     doctrinal approach, 32      influence of particular events, 32     personal/individual influences, 31     publishing criteria/influences, 31, 32    State sovereignty, 26, 27     see also Sovereignty    ‘system external’ sources, 22    system recognition, 22 European Convention on Human Rights    anti-discrimination provisions, 30    gender discrimination, 30 European Court of Human Rights    human rights protection, 29, 30    State obligations, 25 Evaluative research    assessment/appraisal technique, 9, 10    external critique, 10    internal/immanent critique, 10

Index 137 Expository research    answering descriptive questions, 9 Extensions and negations    interdisciplinary approaches, 76, 77     see also Interdisciplinary approaches      legal positivism, 10, 37–42     see also Legal positivism    modern approaches, 42–59     see also Modern approaches    natural law, 10, 35–7, 42     see also Natural law Feminism   EU law     equal opportunities, 65     equality, 65     feminist interventions, 65     gender analysis, 65     gender/feminism distinction, 65     internal market, 66     non-discrimination, 65    experiences of disadvantage, 64    feminist perspectives, 63    gender neutrality, 63   international law     decision-making roles, 64     domestic violence, 64     exclusion of women, 64     feminist approach, 64     normative structure, 64     organisational structure, 64     trafficking, 64    legal scholarship, 63, 64    work relationships, 64 Future research projects    collaborative scholarship, 107, 108   conferences/seminars/workshops, 108    critical feedback, 108   funding, 107    lone scholarship, 107, 108    new substantive areas of law, 107   publication, 108    range of audiences, 108    related areas, 107    research planning, 107   specialisms, 107    time scale, 108 Gender discrimination    EU legislation, 30    human rights protection, 30    methodological issues, 30    non-discrimination provisions, 30 Geography   see Law and geography Guantanamo Bay detainees international law, 95

Guidelines on writing papers   starting out     approach, 125     data, 125     method, 125     research question/puzzle, 124, 125   writing process     answer question chosen, 126     footnotes, 128     parsimony, 127     presentation, 129     referencing, 128     ‘road maps’, 126      situate in broader literature, 126, 127     structure, 125, 126     style, 127 Guidelines on giving presentations   general advice      avoid too much detail, 130     encourage discussion, 130      engaging with the audience, 129–31      focus on limited number of points, 130     keeping to time, 131      speaking from notes, 130, 131   handouts, 131    overheads/power point, 130    structure of presentation, 130 History   see Law and history Human rights   see also International humanitarianism    African Court of Human Rights, 29   constitutionalism, 54     see also Constitutionalism    cosmopolitanism, 48, 49     see also Cosmopolitanism    enforcement of rights, 29    European Court of Human Rights, 29, 30    inherent dignity, 35    natural law, 35     see also Natural law    State obligations, 25    unequal protection, 30 Idealist approach    economic/political/institutional structures, 57   EU law     ideals/culture, 58     social structures, 58   international law     constructivism, 58     critique of positivism, 58     idealist visions, 59    international legal system, 57    research questions, 57     see also Research questions    repressive influences, 57

138 Index Interdisciplinary approaches    academic discourse, 77    caution, 76, 77    communication difficulties, 76, 77    disciplinary tourism, 77    engaging both disciplines, 76   generally, 76   innovation, 77    interdisciplinary research, 77    law and economics, 83–5     see also Law and economics   law and geography, 92–5     see also Law and geography   law and history, 88–92     see also Law and history    law and literature, 96–9     see also Law and literature    law and sociology, 86–8     see also Law and sociology    law/international relations/political science, 78     see also Law/international relations/ political science   liberalism, 79–81     see also Liberalism    theory/methodology of law, 77    transferring concepts, 76 International humanitarianism    humanitarian intervention, 49    humanitarian law, 85, 95   humanitarianism, 71 International law   see also International law theory    boundary disputes, 95   constitutionalism, 52–4     see also Constitutionalism   constructivism, 83     see also Constructivism   cosmopolitanism, 48–50     see Cosmopolitanism    defensive approach, 27    disciplinary existence, 27    domestic courts, 25, 26   fairness, 79    feminism, 62, 64     see also Feminism    gender issues, 67, 68    global administrative law, 55    humanitarian law, 71, 85, 95   institutionalism, 79    international criminal law, 85, 98    international ethics, 79    law of war, 87, 97    legitimacy, 45, 46    natural law, 36, 37     see also Natural law    sources of law, 40   sovereignty     see Sovereignty

   national legal systems, 25    use of force, 40    war crimes, 97 International law theory    choice of method/research questions, 19    common application/conceptual framework, 11, 18    disagreements, 18, 19    philosophical concepts, 19    Third World perspectives, 19   International relations   see Law/international relations/political science Labels   connections, 22    different legal systems, 21    different levels of law, 21–3    disorder of orders, 22    EU law/International law scholarship     see EU law/international law scholarship    EU/UN relationship, 24   limitations     categories of thinking, 14     discrete categories, 13     doctrinal legal research, 15     eclecticism, 14     EU law, 15, 21     international law, 15, 21     national law, 15, 21     overlapping approaches, 14     shared ideas/approaches/interests, 14     socio-legal research, 15    meta-order, 21, 23   overlaps, 22    transnational legal regulation, 21 Law and economics    appraising/explaining the law, 83, 84    Chicago School, 84    economic analysis, 83–5   efficiency, 84    EU law, 85    improving the law, 84   international law     economic analysis, 85     humanitarian law, 85     international criminal law, 85    Marxist approach, 84     see also Marxism    research questions, 38, 84     see also Research questions Law and geography   EU law     citizenship, 92, 94     immigration, 92     overseas territories, 96    European borders, 95

Index 139   geography     conceptual frames, 92     physical geography, 92    governmentality, 92, 95    human geographical concepts, 92    identity/culture/migration, 92, 95, 96   international law     boundary disputes, 95     citizenship, 95     Guantanamo Bay detainees, 95     humanitarian law, 95     nation-States, 93     territorial disputes, 95     territorial integrity, 93     territorial sovereignty, 93     translocations, 93    physical boundaries, 92    racial boundaries, 95   self-determination, 92   spatialisation, 95    State recognition, 92 Law and history   EU law     constitutionalism, 92     Europe ‘in becoming’, 91     Europe ‘in practice’, 91     European integration, 92     external trade relations, 90      trade and development policy, 90   genealogies, 88    historical research, 88, 89    historico-legal approaches, 88    historico-political context, 88   international law     colonialism, 91     dynamism, 91     formalism, 91     history perspective, 90     human rights, 91     internationalism, 91     particularism, 91     universalism, 91    interpretation of law/legal processes, 88    research questions, 88     see also Research questions Law and literature    European Union (EU)     boundaries,99     ethnic groups, 99     feminism, 98      free movement of commodities, 99      free movement of ideas, 99     gendered identities, 97     locational identity, 97     national/regional identities, 97, 98     nations, 99      notions of home/belonging, 97, 98     stigmatising foreign women, 99

  international law     international criminal law, 98     law of war, 97      semiotics of law, 98, 99     war crimes, 98    interpretation of language, 96    judicial opinions, 96   language, 97    law as literature, 96    law in literature, 96    law in popular culture, 96    legal texts, 96    literary criticism, 96    no outside-text, 97   philosophy, 97    poetry, 97, 98   regulation     copyright, 96     libel, 96   storytelling, 96 Law and Sociology   EU law     environmental law, 87, 88      law in action, 87, 88     social relations, 88   international law     law of peace/war, 87     positivist approach, 87     sociological approach, 87    law in action, 86    power relations, 86    research questions, 86     see also Research questions    social context, 86    social practice, 86    social structures, 86    sociology methods/legal analysis, 86 Law/international relations/political science approaches/methods, 78   categorisation, 78   constructivism, 81–3     see also Constructivism    critical perspectives, 78    EU studies, 78    international relations, 78    legal system, 78    political science, 78    political system, 78    theoretical/methodological approaches, 78 Legal positivism   Austin, 39    basis, 37, 38    Bentham, 38, 39    conservative methodology, 38    constructivism, 82, 83     see also Constuctivism   EU law     ECJ jurisprudence, 40

140 Index Legal positivism (cont.):    EU law (cont.):     judicial determination, 41     national legal systems, 40     sources of law, 41     sui generis character, 40    Hart, 39, 41   international law     anti-theoretical approach, 39     coercive order paradigm, 40     fragmentation, 40     monism/pluralism, 40      sources of international law, 40     use of force, 40    international lawyers, 38    Kelsen, 39, 40    legal interpretation, 39    origins, 37, 38    postcolonial scholarship, 38   research questions      analysis of legal texts, 38     analytical/doctrinal research, 38     description/explanation of law, 38      law and economics approaches, 38     systematising legal norms, 38    rules of law/formal status, 37    separation of law/morality, 3    sovereignty, 26, 38     see also Sovereignty   Statehood, 38 Legal research methodologies see List of legal research methodologies; Research questions Legal research projects   see also Research questions    critical approaches, 60     see also Critical approaches   future research projects, 100, 107, 108     see also Future research projects   imagined as a picture, 11, 115   methods/data, 8   presentations     see Guidelines on giving presentations    reading methodologically, 34, 42    reflecting on own approach, 113–9    responding to feedback, 129    statements debate, 115, 116    theoretical basis, 5    Thinking Hats Exercise, 117–9    written papers, 109, 124–9     see Guidelines on writing papers Legal scholarship    academic community, 109    choice of method, 8, 9, 19   communication, 7   conclusions, 110   contextual issues     EU law, 16, 17

    importance of context, 18     international law, 16, 17     research proposals, 18    critical reflection, 7    environmental law, 7, 8    interdisciplinary approach, 8    law teaching, 109    mapping the subject, 8    methodology, 7, 8     see also Methodology    quality of scholarship, 8    reflexive practices, 18    research-led teaching, 108    teaching-led research, 108 Liberalism   autonomy, 44    constitutional scholarship, 46    critical approaches, 45   definition, 44   democracy, 44    Enlightenment liberalism, 46    equal citizenship, 44   EU law      absence of citizenship, 45, 46     democratic deficit, 46      EU integration, 45, 46, 80     governance, 45     international relations theory, 80     negative market rights, 46     political/moral legitimacy, 45     positive civic rights, 46    external critique, 44   governance, 43    incremental change, 45    internal/immanent critique, 44   international law     comparative constitutional law, 79     compliance, 79     fairness, 45     institutionalism, 79     international ethics, 79     international institutions, 80     international order, 79     international relations theory, 80, 81     legitimacy, 45, 46     liberal analysis, 80     national law relationship, 46     nature/qualities, 45     organisational design, 79     sovereignty, 80     Statehood, 80     transnational law, 79    liberal economic theory, 44    liberal scholarship, 44, 45    modern political theory, 44    privileged bias, 45    universal rights, 44

Index 141 List of legal research methodologies    EU law, 11, 13    heuristic role, 3   inclusions/exclusions, 12    incommensurability, 12, 13    international law context, 11, 13    introduction, 10, 11   jurisprudential approaches     legal positivism, 10, 37–42      natural law, 10, 35–7, 42    labelling, 13, 14     see also Labels   limitations, 3    sources of inspiration, 11, 12    work in progress, 11 Literature   see Law and literature Marxism    cultural constructs, 60    dominant class interests, 61   EU law     ECJ jurisprudence, 63     EU Treaties, 63     Marxist analysis, 63     Single Market project, 63     system of governance, 63   international law     alternative legal narratives, 61     alternative style textbook, 62      assumed objectivity/system of rules, 62     ‘bourgeois imperialist’ law, 62      feminist approaches to international law (FemAIL), 62      historical narrative of progress, 62     international law scholarship, 62     international legal regulation, 61     lack of recognition/structural constraints, 62      new approaches to international law (NAIL), 62     positivism, 62      Third World approaches to international law (TWAIL), 62     Third World interests, 62     transnational capitalism, 62    international relations, 61    law and economics, 84     see also Law and economics    Marxist scholarship, 61    neutral concepts, 60 Methodology   see also Legal research methodologies; Theory/ methodology/approach   analysis, 5    choice of method, 8, 9, 19    consequences for research, 1    critical approaches, 26

    see also Critical approaches    evaluative research, 2, 9     see also Evaluative research    expository research, 2, 9     see also Expository research    governance approaches, 26    guide to thinking/questioning, 5    legal scholarship, 7    method, distinguished, 5    practical nature, 1    research agenda, 1    research questions, 1, 2, 6     see also Research questions    scholarship, 2, 8     see also Legal scholarship    systematic procedure, 7    theoretical connotations, 5 Modern approaches   analysis     ‘bright lines’, 43     distinctions, 43   constitutionalism, 50–4     see also Constitutionalism   cosmopolitanism, 46–50     see also Cosmopolitanism   EU law     analysis, 43       constitutionalism, 43, 44     governance, 43, 44     international level, 43, 44    Idealist approach, 57–9     see also Idealist approach   international law     analysis, 43     governance, 43   liberalism, 44–6     see also Liberalism    natural law, 42     see also Natural law    ‘New Governance’, 55–7     see also ‘New Governance’   positivism, 42     see also Legal positivism National law    external regulation, 25    national/international law relationship, 25 Natural law   constructivism, 82     see also Constuctivism   EU law     human rights, 36     institutional legitimacy, 37     morality, 36    human rights, 35, 36    inherent dignity, 35   international law     Enlightenment naturalism, 37

142 Index Natural law (cont.):    international law (cont.):     Grotius, 36     international order, 36     morality, 36      natural/positive law relationship, 36, 37    modern proponents, 35   origins, 35    theological/secular strands, 35 ‘New governance’    constitutionalism overlap, 55   definition, 55   EU law     administrative law-making, 56     critical theory approach, 57     legal research implications, 56     technical standardisation, 56    EU legal scholarship, 55   European Governance (2001), 55    European legal method, 55   international law     global administrative law, 55     international legal scholarship, 55 Paper discussant    central argument, 132    further research, 133   general advice     differentiating your critique, 132      discussion of small points, 133     method, 132     succinctness, 132     thinking positively, 132    structure of paper, 132    written comments, 133 Participation in discussions   conferences/seminars/workshops, 134    general advice, 134    joint learning, 134   preparation, 134 PhD students   see also PhD thesis    collaborative activity, 3, 4   discussions     see Participation in discussions    examinations, 2, 100, 101     see also Viva voce examinations    exercises/activities, , 4    frequently asked questions, 1   presentations     see Guidelines on giving presentations    reading methodologically, 3, 34, 42   research projects    critical approaches, 60      future projects, 100, 107, 108     methods/data, 8     theoretical basis, 5     written projects, 100

   research questions, 8, 9     see also Research questions    responding to feedback, 129   self-assessment, 3   supervision, 1    written papers, 109, 124–9     see also Guidelines on writing papers PhD thesis    addition to knowledge, 100    evidence of systematic study, 100    related to general body of knowledge, 101   research questions     see Research questions    University requirements, 100, 101    worthy of publication, 101    written papers, 109, 124–9     see also Guidelines on writing papers Political science   see Law/international relations/political science Postcolonial theory    colonial relations, 69   EU law     asylum-seekers, 69     democracy, 71     foreign aid, 71     human rights, 71     resident non-nationals, 69   international law     colonial origins, 70     humanitarianism, 71     postcolonial theory scholarship, 69     research data, 69     research method, 69    postcolonial literature, 69    South/Marxist perspective, 69 Presentations   see Guidelines on giving presentations Published work    doctrinal approach, 32    objectivity, 31, 32    theoretical approaches, 32 Queer theory    categorisation of gender/sexuality, 66, 67    challenge to feminism, 66, 67   EU law     ECJ jurisprudence, 68     homosexual identity, 68     sex discrimination, 68    exclusionary gender norms, 66   international law     gender identity, 68     gender/sexuality rights, 67     human rights, 67, 68     sexual orientation, 68    meaning of gender, 66

Index 143 Research Excellence Framework (REF)    research funding, 2 Research questions   constructivism, 82   generic questions      application to own thesis, 6, 34, 36, 39, 59, 78, 84, 86, 88      assumptions made, 6, 34, 36, 39, 59, 78, 84, 86, 88      benefits/drawbacks, 6, 34, 36, 39, 59, 78, 84, 86, 88      reader/publisher interest, 6, 34, 36, 39, 59, 78, 84, 86, 88,      sources/data used, 6, 34, 36, 39, 59, 78, 84, 86, 88      idealist approach, 57    international law theory, 19    law and economics, 38, 84    law and history, 88    law and sociology, 86    legal positivism, 38    workshop materials, 119, 120 Signing out activity, 122, 123 Sociology   see Law and sociology Sovereignty    excess of sovereignty, 26    lack of sovereign authority, 26   law-making, 26    legal positivism, 26, 38     see also Legal positivism   nationalism, 26    positive/negative force, 27    process of government, 26   realpolitik, 26   research methodologies     critical approaches, 26     governance approaches, 26     interdisciplinary approaches, 26    soft law, 26    Treaty of Westphalia, 26, 38

State obligations    codes of conduct, 25    human rights, 25 Statements debate, 115, 116 Theory/methodology/approach   approach, 6     see also Research questions   methodology, 5     see also Methodology    synonymous use of term, 5   theory     project base, 5     theory/practice gap, 5 Thinking Hats Exercise, 117–9 UN Security Council   authorisations, 25 Venn Diagrams, 120–2 Viva voce examinations    candidate’s own research, 101    choice of topic, 101    general comprehension, 101    methodological assumptions, 101    methodological questions, 101    opening question, 101    preparation, 100, 101    relationship of thesis/particular field, 101    requirements, 100, 101    substantive questions, 101 Workshop materials    Dunleavy’s Dinner Party Test, 113, 114    generic questions, 119, 120   Quiz, 122    signing out activity, 122, 123    statements debate, 115, 116    Thinking Hats Exercise, 117–9    Venn Diagrams, 120–2 Written papers   see Guidelines on writing papers