Rejoinder: twailing international law.

• Author: Gathii, James Thuo
• Position: Response to review by Brad Roth in this issue, p. 2056

Brad Roth's response to my Review of his book seeks to privilege his approach to international law as the most defensible.(1) His response does not engage one of the central claims of my Review -- that present within international legal scholarship and praxis is a simultaneous and dialectical coexistence of the dominant conservative/liberal approach with alternative or Third World approaches to thinking and writing international law. Roth calls these alternative approaches critical and does not consider them insightful for purposes of dealing with issues such as anticolonialism. Roth's characterization of my Review as falling within critical approaches to international law seems too quick and, in fact, fits in very nicely with neoconservative dismissals of the progressive left, and indeed, of Third World scholarship. For example, the rise of the Critical Race Theory movement in American legal academia received the sort of response that Roth gives to my Review.(2) Roth defends his formalistic and doctrinaire approach to the study of international law, which is divorced from the social, historical, and political context within which international law operates. In short, he defends international law as an iron cage of rules and doctrines as if the law was not itself a "crucial site for the production of ideology and the perpetuation of social power."(3)

Such a view of international law, or indeed any social phenomenon, simply elides the issues raised in my Review. Roth's characterization of my Review as "politically dysfunctional" epitomizes his failure to engage the pitfalls of formalist and doctrinaire thought in that it fails to engage the truism that states advance their interests, in part, through the medium of international law.(4) It fails to debate whether international law is constitutive and not merely a reflection of the hierarchical character of international society. As such, law does not stand outside the raw interests of states, but it produces those interests as much as it is the product of them. Consequently, the characterization of my Review as politically dysfunctional is all the sadder since any fair reading suggests otherwise. If nothing else, I engage in a careful and elaborate academic review of his book. I am not surprised, though, that Third World intellectuals receive little respect from some of their Western counterparts like Roth, even when they make credible intellectual contributions. In fact, Roth claims that his book is "far more effectively anti-colonial than ... [my] critique of it."(5) What better way of denying me a voice could there be?

The essential point concerning the variety of Third World positions that I illustrate in my Review, and which Roth misses, is that Third World positions exist in opposition to, and as a limit on, the triumphal universalism of the liberal/conservative consensus in international law. In addition, these Third World positions are often shaped by the liberal/conservative consensus as much as the liberal/conservative approaches are shaped by countervailing Third World positions. A good example of this reciprocal definition of positions is the traditional liberal/conservative defense of the existing hierarchies of the international political economy. This defense...