Governmental illegitimacy and neocolonialism: response to review by James Thuo Gathii.

• Author: Roth, Brad R.
• Position: Response to review by James Thug Gathii in this issue, p. 1996

INTRODUCTION

The essence of James Thug Gathii's criticism of Governmental Illegitimacy in International Law(1) is that my study seeks to answer a doctrinal question rather than to challenge the "Eurocentric" assumptions that pervade doctrinal thinking. Although I (inevitably) take exception to some of Professor Gathii's characterizations of the book's details, an elaborate clarification and defense of these finer points would amount to an uninteresting response to an interesting essay. Indeed, since Gathii characterizes the book as "well written, well-argued, and well-researched,"(2) and since I am in sympathy with the considerations that prompt him to go beyond the scope of what I sought to accomplish, I am tempted to treat Gathii's essay as a complement (as well as, in many respects, a compliment) to my book, and therefore to leave well enough alone.

I nonetheless accept the Michigan Law Review's invitation to respond, in order to confront directly the political challenge that Gathii, as a participant in the scholarly current of "critical" approaches to international law, poses to my more traditional brand of legal scholarship. Above all, I want to contest the relationship that Gathii posits between disciplinary methodology and political substance.

"Critical" scholars frequently seem to imagine that, in struggling against the methodological norms of their disciplines, they are struggling against the very structure of the power relations that exploit and repress the poor and weak -- the metaphor being, in their minds, somehow transubstantiated into reality. The result is, all too often, an illusory radicalism, rhetorically colorful but programmatically vacuous. The danger is that a fantasized radicalism will lead scholars to abandon the defense of the very devices that give the poor and weak a modicum of leverage, when defense of those devices is perhaps the only thing of practical value that scholars are in a position to contribute.(3)

My main problem with Gathii's critique, then, is not (as he might imagine) that it is political, but that it is politically dysfunctional. More specifically, for all of Gathii's anticolonial posturing, my book is, I insist, far more effectively anticolonial than is his critique of it.

1. THE LAW AND POLITICS OF GOVERNMENTAL ILLEGITIMACY

   Professor Gathii is fully justified in subjecting Governmental Illegitimacy in International Law to an essentially political critique, for the book, like all legal scholarship, has political implications -- in this case, designedly so.(4) This is not to say, as "critical" scholars sometimes seem to imply, that law or legal scholarship is reducible to ordinary politics. Law is a purposive project, and thus not exclusively an empirical phenomenon; "law as it is" cannot be wholly separated from "law as it ought to be."(5) The purposes that drive the project, however, must be demonstrably immanent in social reality, not merely superimposed according to the predilections of the jurist; the jurist's task, at once creative and bounded, is to render a persuasive account of how those immanent purposes bind powerful actors to worthy projects (such as the self-determination of Third-World peoples) that they would not otherwise be inclined to undertake.(6) That legal scholarship impress those who are not natural political allies is the test, not only of its scholarly merit, but also of its political merit; that friends may be disappointed is of far lesser significance.

   This task is not to everyone's taste, and some in the academy have devoted their considerable talents to discrediting the project of legal reasoning, as conventionally understood.(7) But their efforts, though often of great intellectual sophistication, are profoundly misguided. In their zeal to "unmask" law's legitimation of exercises of power, they fail to appreciate that law can legitimate such exercises only insofar as it simultaneously constrains them. Power holders seeking the imprimatur of legality can benefit only to the extent that they accept its limits, for violation of the limits necessarily reverses the process of legitimation.(8)

   To deny such a relationship between legitimation and constraint is to assert that putative legal limits are a remarkably effective ruse -- that legal rhetoric, rather improbably, fools most of the people all of the time. (Presumably, the power holders are not thought to be fooling themselves, since if the constraints, though objectively illusory, seem real enough to them, the rule of law would be a reality in political terms even if a chimera in philosophical terms.) On the other hand, if law does constrain as well as legitimate the exercise of power, to neglect that point is to miss an important political opportunity.(9)

   Thus, Governmental Illegitimacy in International Law, in developing legal grounds for limiting the intervention of foreign powers in the internal affairs of weak states, is highly conventional in its method, except in one important respect. Because there has only recently come into being an international law of the internal character of domestic political systems, there is no tradition in international law scholarship of interpreting the relevant practices and pronouncements of states in light of the diversity of political principles and power arrangements that have been efficacious in the international community. The task of legal interpretation in this area implicates the fields of political theory and comparative politics; without an understanding of the political ideals and structures that have had a voice and a vote in the international system, one tends to read the source material in light of highly parochial assumptions about political life. Thus, Chapters Two, Three, and Four, as interdisciplinary aids to legal interpretation, distinguish the book from more standard international law scholarship.

   For this limited interpretive purpose, however, one need understand only empowered approaches to political legitimacy -- that is to say, approaches that have been influential among state actors (Western, Socialist, and Nonaligned) whose deeds and words are the source material of international law in the relevant periods. That other, disempowered approaches may more authentically represent cultural norms in much of the world (e.g., in postcolonial states ruled by unrepresentative, Western-influenced leaders) would be interesting to know, but unhelpful to...