Jun 12, 2023 Jedidiah KronckeLegal History
In the contemporary moment, discussions of international law are difficult to disengage from questions regarding the role of China. Some cast China as a new, revolutionary force set to upend or hasten the demise of the post-World War II order. Others cast China as a binding force for exactly the same order, especially in contrast to the noticeable retreat of its dominant architect, the United States. Moreover, the Chinese Communist Party actively brands its particular engagement with international law as a defining part of its own system of governance—often casting itself in equally contradictory terms as both stalwart and revolutionary.
Such diverse viewpoints draw upon their own versions of the history of international law, both in and outside of China. Ryan Mitchell’s Recentering the World lays out this history—and its relationship to many of these contemporary claims—with China center stage in the development of international law since the mid-19th century. Mitchell does so by synthesizing novel multilingual archival research with a global view of cutting-edge international legal scholarship. Continue reading "Is Chinese International Law Chinese?"
May 8, 2023 Jedidiah KronckeInternational & Comparative Law
In 1972, Laura Nader published her generationally influential article, “Up the Anthropologist.” The motivation for Nader’s intervention was borne partly out of her experience with students who felt daunted by the prospect of studying powerful social elites—what has now become popularly known as “studying up.” As a pioneering legal anthropologist, for Nader this often involved the study of law, especially elite lawyers. Nader outlined many of the opportunities and demands that would face anthropologists and others who sought to use ethnographic methods to study those who could articulate and promote their own representations in public, and actively limit researcher access to their workplaces.
Fifty years after Nader’s intervention, Dimitri van den Meerssche’s The World Bank’s Lawyers: The Life of International Law as Institutional Practice tackles this task of “studying up” at perhaps one of the most singularly powerful international institutions—the World Bank. Van Den Meerssche takes up this particular challenge when all of the barriers Nader identified early on have only intensified. Not only is the Bank fully enmeshed in the defense of its own public image, but it is fully aware of the possibility that researchers could take any access as an opportunity to construct their own critical narratives
Van Den Meerssche has thus produced a fascinating analysis of how to study such an institution under these constraints, as well as a meditation on what critique of international institutions should look like. What he produces is not a traditional ethnography but, as Nader presaged, a creative empirical study that takes advantage of the Bank’s own complexity to dive deeply into the daily world in which the Bank’s lawyers operate. Continue reading "The World Bank’s Many Worlds of the Rule of Law(yering)"
Jun 8, 2022 Jedidiah KronckeLegal History
Yzes Dezalay and Bryant Garth have been producing theoretically and methodologically innovative work on lawyers for nearly three decades. Their latest collaboration, Law as Reproduction and Revolution, extends their commitment to understanding the global and comparative dynamics of modern legal professions with greater ambition than any of their now classic works.
Here Dezalay and Garth (D&G) seek nothing less than to produce a global framework for understanding the modern production of elite lawyers. They build a theoretical framework for understanding how legal professions reproduce themselves in times of social change, in large part by developing critical histories of the legal professions in several European countries and the United States. They then illustrate how this framework helps explain 20th century changes in the legal professions of India, Hong Kong, China, South Korea and Japan—especially as impacted by interpretations of modern US legal professionalism. Continue reading "(Familial) Meritocracy and (Non-)Revolutionary Change: Reproducing Inequality in Modern Legal Professions"
Mar 25, 2022 Jedidiah KronckeInternational & Comparative Law
I am not predisposed to scholarship written in an idealistic register. For many contemporary thinkers—in most any field—greater insight into modern political trends gravitationally pulls one toward cynicism. Some of this very cynicism encircles debates in international law that question whether idealism itself has been unwittingly complicit in bringing about the world of ever-growing inequality and retreating democratization now often centerpiece in global legal scholarship.
As such, I was not predisposed to like Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters. I had long read with interest the scholarship of its two authors, Anthea Roberts and Nicolas Lamp, whose previous work has rarely been overtly optimistic about the international legal order. But Six Faces is an idealistic book to its very core and premise. Moreover, in working through a book of great ambition and intellectual agility, it is invariable to find points of disagreement, even discomfort, among its diverse insights. Yet, what is most striking about Six Faces is that throughout you can feel the authors’ dedication to finding a constructive way to be publicly facing international academics when most public spaces are thoroughly polarized and rife with contempt. It is in this reading that I found it both provocative and challenging. Continue reading "Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World"
May 31, 2021 Jedidiah KronckeLegal History
In recent decades, a new wave of critical literature highlighted how the concept of “civilization” emerged in the 19thcentury as a rubric to judge countries as worthy (or not) of admission to the European order of international law. Today this scholarship is commonly referred to as the “historical turn” in international legal scholarship. Much of this literature explored the problematic racialized origins of the term “civilized,” as well as its persistent impact on international law today. In this context, Ntina Tzouvala’s Capitalism as Civilisation presents a next-generation interpretation of the legacy of “civilization” of international law today.
Tzouvala’s book is ambitious on a number of fronts. She approaches “civilization” not as a singular term but as an argumentative pattern driven by an oscillation between what she calls the “logic of improvement” and the “logic of biology.” “Improvement” here refers to international law’s embrace of progressive universalism, and “biology” refers to assertions of immutable cultural difference. While these ideas are seemingly at odds, Tzouvala emphasizes how these dual logics exist in productive tension. Together, they kept those once deemed “uncivilized” as perpetual objects of needed reform and irresolvable incompatibility.
But Capitalism as Civilisation is even more ambitious than simply providing this new framing of the now well-established “historical turn.” The book can be read as a generational statement about what critical scholarship on international law should and can be. Within a single volume it attempts to provide a convincing synthesis of core tensions in the field, if not in critical scholarship more generally. With care and confidence, Tzouvala’s aims to integrate material analysis into the predominately discursive and deconstructive focus of her critical predecessors on the indeterminacy of international law. Continue reading "There Is No International Legal Order Beyond Capitalism"
Nov 19, 2020 Jedidiah KronckeInternational & Comparative Law
In 2020, the World Bank published the 17th annual Doing Business Report (DBR), openly tying it to salutary reforms in the 190 nations the report evaluates across a range of regulatory arenas. Academic inspiration for the DBR is routinely linked to the “legal origins” argument which classically claimed that countries with common law legal heritage perform better economically—most acutely by favoring creditors and minority corporate shareholders. Together, the DBR and legal origins scholarship (LOS) have enjoyed a mutually-reinforcing success leading to thousands of academic citations and numerous induced reforms across the globe.
Yet, the success of the DBR/LOS juggernaut is matched by comparative law scholars’ equally vigorous critiques of its systemic deficiencies. New iterations of such rejoinders are recurrently juxtaposed with comparative law scholars’ longstanding lament regarding the marginality of their perspectives in many international reform agendas. For all the intellectual energy devoted to this debate over the past two decades, Dan Puchniak and Umakanth Varottil’s Related Party Transactions in Commonwealth Asia now stands out as the clarion critique of the DBR/LOS approach. Continue reading "Intransigent Indices and the Laments of Comparative Law: Why Legal Origins Won’t Die"
Jul 8, 2020 Jedidiah KronckeLegal History
The intertwining of American foreign policy and American law has been a renewed topic of historical interest in recent years, with specific focus placed on the United States’ emergence as a global power at the turn of the 20th century. Rande Kostal’s Laying Down the Law dives deeply into perhaps the two most enduring symbolic episodes that came to shape popular and elite understanding of the place of American law in what many now call America’s informal empire: the post-World War II American occupations of Japan and Germany. Almost every subsequent American military action has to some degree invoked these interventions as precedents to justify efforts to export American legal models to foreign nations. For those working in this vein of international legal history, Kostal’s work has thus been long anticipated.
Kostal examines one aspect of the occupations of Japan and Germany comparatively within each of his six substantive chapters. His first two chapters deal with the details of the planning and occupation of each country, respectively, and his last four chapters the substance of reforms in constitutional law, court organization, criminal justice, and civil liberties. Undergirding all of these efforts was a general presumption that American liberal legality and the rule of law were central to American democracy and, thus, to democratization abroad. Conversely, there was a presumption that fascism and international belligerence sprung from the rejection of such values. Continue reading "Deconstructing the Foundational Mythologies of American Legal Empire"
Apr 19, 2019 Jedidiah KronckeInternational & Comparative Law
An implicit, if not often explicit, premise of the cluster of work often identified as “law and development” is that there are distinct spheres of legal reform activities in countries deemed “developing” and in those that have reached the status of “developed.” Many critiques of these presumptions have raised concerns about cultural politics and empirical verification. And while most acknowledge that institutions matter, making use of this insight has generated more ideological heat than practical certainty. Especially in these darker days of democratic backsliding and growing authoritarianism, grappling with the tangled past of efforts to advise or orient national legal reform projects has left many with the question of “what now?”
Mariana Prado and Michael Trebilcock’s new monograph, Institutional Bypasses, takes on this challenge by articulating a more procedural, methodological answer to this question, “what now?,” in lieu of advancing a renewed host of substantive best practices. In line with their recent field-leading publications, Prado and Trebilcock use the concept of the institutional bypass to model the empirically-committed experimentalism they have come to champion by presenting legal reform as an iterative learning process squarely aimed at avoiding the pitfalls of past efforts. Continue reading "Bypassing Intransigent Legal Institutions"
Feb 27, 2019 Jedidiah KronckeLegal History
Sam Erman ends his new book Almost Citizens by describing Puerto Rico as “the oldest colony in the world” (P. 161). This word, colony, might strike some as an overstatement, for the United States is never supposed to have had colonies. Others might offer up “protectorate” or other alternate terms to capture Puerto Rico’s constitutional ambiguity as something less than that of a state—none of which would be any less descriptively coherent than the island’s technical designation as “an unincorporated territory.” Erman ends his long-awaited monograph with this statement exactly because his careful and compassionate history takes direct aim at the legal ambiguity that has denied Puerto Ricans their full equality as American citizens. Erman’s story of American empire makes plain that conceptual or doctrinal equivocation has never altered the substantive reality that Puerto Ricans still live today with the very real legacy of American colonialism.
There is an underlying tone of moral indignation and loss in Almost Citizens that is all too easy to appreciate today. In the recent aftermath of Hurricane Maria, it is quite evident that many are still comfortable with Puerto Rican’s liminal status in our constitutional system, and happy to engage in a victim-blaming denial of their full inclusion as Americans. Erman’s monograph shows how Puerto Rico’s ambiguous status persisted alongside grand American claims to the promotion of democracy worldwide. It argues further that by sustaining this dissonance, the Supreme Court lessened constitutional citizenship for all Americans. Erman repeatedly shows how what he calls the “Reconstruction Constitution” of the post-civil War was “sacrificed…on the altar of empire” (P. 21). To decouple the presumption that territory and citizenship were co-terminus, the Court necessarily hollowed out the American franchise as it was extended to some at home and denied to others abroad. Continue reading "Living Under Imperial Constitutional Law in Puerto Rico"
May 1, 2018 Jedidiah KronckeLegal History
Scholars from a variety of disciplines have begun to explore what they see as the lost virtues of political economy. In its broadest conception, this term is meant to capture the basic truism that any study of politics or economics should reflect their mutually constitutive character. A renewed interest in political economy and the law further reflects the same mutuality among law, politics, and economics. Central to such renewal is a claim that analytically segregating these fields leads to analysis that is both descriptively inaccurate and has powerful and troubling normative consequences.
Sabeel Rahman’s Democracy Against Domination is a leading example of a new generation of scholarship that demonstrates both the descriptive and normative promise of law and political economy. Rahman’s mission in the book is to reinfuse debates on financial regulation with overt concern for democratic participation and to recover an ethos that sees American economic and political citizenship as inextricably intertwined. Rahman’s history traces how this ethos was lost over the course of the twentieth century, and in doing so produces a sustained historical inquiry about how we arrive at what is considered “normal” or inevitable about legal regulation. Domination’s chapters follow the pattern of presenting a modern problematic in regulation and then demonstrating how contemporary responses are both democratically impoverished and historically contingent. The aim of the endeavor is to argue that fields of law that have been exorcised of any referent to democratic values, notably antitrust and administrative law, need to be reopened and remade. The alternative is to face pressing issues of inequality with an ultimately ineffective set of regulatory responses. Continue reading "Recovering and Revitalizing Economic Citizenship in American Law"
