A Return to Koskenniemi; or the Disconcerting Co-Optation of Rupture

Abstract

This paper consists of an exposition and study of the evolution of the scholarship of Martti Koskenniemi from his earlier From Apology to Utopia to his later calls for a culture of formalism. This brief study is inspired by an effort related to a broader project which seeks to discover the total aggregate of social and economic laws, which have and continue to (over)determine the conditions of the existence of much left-wing critical legal scholarship in the international law field. Related to this broader project this paper argues that while Koskenniemi’s call for a culture of formalism – understood as the Koskenniemi’s answer to the question: ‘what is the type of legal agency implied by the type of a critical narrative of our profession epitomized in the indeterminacy thesis expounded in From Apology to Utopia’ – does stay faithful to the argument of From Apology to Utopia, it is nevertheless limited – arguably co-opted – by the very system it originally set to critique. For the ‘ultimate question is not which particular content hegemonizes the empty [‘culture of formalism’, PK] (and thus, in the struggle for hegemony, excludes other particular contents); the ultimate question is: which specific content has to be excluded so that the very empty form of [the culture of formalism] emerges as the ‘battlefield’ for hegemony?’ As such, it is argued while Koskenniemi’s call for a culture of formalism - understood somewhat simplistically as the simultaneous commitment to the full mastery of the grammar of international legal argument accompanied with a sensitivity to the uses to which it is put; a synthesis of progressive coolness and passion – may succeed in caressing the international lawyer’s self-esteem, it nevertheless is ‘only by taking the viewpoint of legal fetishism is it possible to think that the legal form of a relationship changes or destroys its real and material essence.’