‘Terribly unjust, subject to crisis, environmentally unwise, everywhere politically and economically captured by the few, and yet somehow impossible for anyone to alter or escape’: this is the world David Kennedy presents us with in his new book, A World of Struggle.footnote1 To understand its stability, Kennedy argues, we must turn away from traditional accounts that focus on the interstate system or the global economy, and look behind these apparent structures to the work of experts. Global political and economic life is increasingly formed not in the visible centres of political decision-making, but in the shadowy world of technical management. This is not a world of calm analysis and sage counsel, but of ruthless internal struggle and unceasing conflict. It is also one that remains largely invisible, impervious to contestation. A World of Struggle seeks to pull back the veil on the workings of expertise, offering a rich description of the expert knowledge practices that shape our world.
Kennedy, Professor of Law at Harvard, is best known as a leading heterodox thinker in the field of international law. His earliest interventions were significant in introducing the insights and sensibility of the us Critical Legal Studies (cls) movement into international legal scholarship. ‘Theses about International Law Discourse’ (1980) and International Legal Structures (1987) drew on the structural linguistics of Saussure to argue that the surface chaos of international legal discourse hides a deep legal grammar. Despite the apparent randomness of ‘ever more complicated and diffuse arguments’ within increasingly fragmented legal fields, international law and legal argument are, in fact, structured around a central axial opposition: between sovereign interest and international norm—national particularism set against participation in an international community. This tension is apparent at the most fundamental level—that of sources: from where does international law come, and from where does it derive its normative authority? Sovereign states are bound by international rules only because sovereigns consent to be bound—a claim rooted in the supremacy of national interest. But if law is indistinguishable from the political interests of sovereign states, how can we explain the persistent view, shared by state policy makers, that exogenous norms rooted in social consensus must be considered? International law is constraining precisely when states do not wish to be constrained. And yet from where does this normative constraint arise if not from sovereign interest? This dialectical pattern of conflicting modes of justification or rhetorical styles may manifest differently across diverse doctrinal areas—the law of the sea, war or human rights, for example—but ultimately reflects a common opposition between cooperation and autonomy: a salmagundi of international legal doctrine structured, in fact, by the same fundamental arguments. In these recurring patterns, Kennedy identified an international legal grammar—the langue, to use Saussure’s term—that nonetheless coexisted with substantively open and indeterminate arguments at the surface level of doctrine—the lawyers’ vernacular, or parole. The contradiction between sovereignty and community, Kennedy insisted, was ultimately irresolvable. Nothing internal to international law could determine which set of arguments, emphasizing one or the other pole, will be decisive. International law, in the final analysis, was ‘a conversation without content’.
The originality of Kennedy’s argument can hardly be overstated. Few scholars before him had sought to extend the insights of cls to international law. Kennedy, in these and subsequent works, expanded the horizon of inquiry for a new generation of scholars reassessing the foundational assumptions of the discipline. These ‘New Approaches to International Law’ (nail) shared all of cls’s theoretical eclecticism: a potpourri of methodological commitments united by little more than a heterodox attitude towards international law and a nominal attachment to progressive politics. What coherence they had owed much to Kennedy personally and to his institution building. While Kennedy himself proclaimed nail ‘done’ in 1998, his intellectual production has remained iconoclastic. In The Dark Sides of Virtue (2004), he sought to undermine the certainties of humanitarian and human rights lawyers. Might the human rights movement be part of the very problem it set out to address, he asked, cataloguing the ‘possible risks, costs and unanticipated consequences’ of humanitarian thinking and practice? Efforts to bolster refugee protection, foster economic development, and regulate the conduct of war: each betrayed a noble humanitarian impulse gone awry, unquestioned assumptions blinding policy makers to the consequences of their efforts. In Of War and Law (2006), against the backdrop of Kosovo, 9/11 and the second Iraq war, Kennedy noted that humanitarians and military officials increasingly shared a vocabulary. Though they might appear to disagree prima facie, both were in fact central actors in the formation of an expert consensus that, in turn, shaped the politics of war: ‘If ours has become a culture of violence, it is a shared culture, the product of military and humanitarian hands.’
Kennedy has produced a rich and varied body of work. But while his subject matter has shifted, a consistent theme runs throughout: international law is imagined not in conventional terms as a static set of rules, but as an argumentative practice. ‘The point about a norm is not its pedigree’, he wrote in Of War and Law, ‘but its persuasiveness’. To debate the validity of law is to beg the question; what really matters is ‘whose interpretation of the law will, in fact, prevail, and before what audience’. The community of professionals we know as international lawyers do not simply offer sage counsel on what the law permits or requires. Their conflicting articulations of the law are themselves productive of the law and legal relations as they come to shape our lived reality. In this sense, law is far from unique—it is simply one example of what Kennedy in his latest book calls the practice of expertise. Experts like to deny their agency. They appear to play a background role, using their specialized professional knowledge to advise, interpret and inform—what the public good demands; what the practical necessities of reason require; what scientific facts establish—while the real decisions are taken elsewhere, in the loci of power: the White House, the boardroom, the battlefront. Such a view of the world, and of experts’ place in it, is mistaken, or so Kennedy argues in A World of Struggle. Experts do not simply speak reason to power: reason is a product of expertise; experts advance and legitimate political interests in universal terms, shaping and constraining the decisional space long before political decision-makers enter the scene. Kennedy’s objective is thus ‘to bring knowledge practices and power practices into the same frame’, with expertise as ‘the crossroads where they intersect’.
A World of Struggle sets out to construct a general model of the workings of experts and expert knowledge. At its heart, however, lie the building blocks of a more capacious social theory, one premised on a curious mix of methodological individualism and radical social constructivism. Citing Hobbes, Clausewitz and Schmitt, Kennedy places struggle at the centre of his model. The struggle between individuals is his epistemological lodestar, on which all further derivations rest. Yet his terrain of struggle is less a Hobbesian war of survival than an abstract topography on which people pursue self-interested ‘projects’. It is the pursuit of these projects, rather than the desire for self-preservation, which brings them into conflict. A project, Kennedy explains, is simply ‘something a person wants to achieve or obtain’. There is no a priori hierarchy of projects. One may want to victimize or to be a victim; while many desire prestige, others seek marginality, preferring to ‘denounce power than exercise it’. The pursuit of idiosyncratic and incompatible projects places individuals in conflict with one another. Each struggle has distributional consequences: allocating ‘resources, powers, statuses, or virtues’. These are not struggles among equals. Rather, there is ‘a pre-existing status of forces’: an uneven distribution of capabilities and competences among individuals engaging in struggle. In Kennedy’s extended metaphor: ‘It is helpful to think of people coming to struggle with little backpacks of legal and other entitlements, powers, and vulnerabilities’. What determines the makeup of my backpack? Its contents are also the product of struggle: to capture and lock in gains, excluding adversaries from what they value, but also improving one’s starting position ‘in the next round’. In this game-theory version of social relations, the history of all hitherto existing societies is the history of recurring rounds of struggle between rucksack-toting egoists.