Walter Benjamin and the Re-Imageination of International Law

TLDR: This article proposed the re-imageination of international law as a pure means of representation rather than a means of exercising control over the world, drawing on the work of Walter Benjamin, Harold Bloom, and Theodor Adorno.

Abstract: Drawing on the work of Walter Benjamin, Harold Bloom, and Theodor Adorno this article proposes the re-imageination of international law as a ‘pure means’ of representation rather than a means of exercising control over the world.

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Nicholson, Matthew (2016) 'Walter Benjamin and the re-imageination of international law.', Law and
critique., 27 (1). pp. 103-129.
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This is a version of an article in Law and Critique. The final publication is available at Springer via
http://dx.doi.org/10.1007/s10978-015-9170-z
1
WALTER BENJAMIN AND THE RE-IMAGEINATION OF
INTERNATIONAL LAW
MATTHEW NICHOLSON
Southampton Law School
Building 4
Highfield
Southampton, SO17 1BJ
Email: M.C.Nicholson@soton.ac.uk
ABSTRACT. Drawing on the work of Walter Benjamin, Harold Bloom, and Theodor
Adorno this article proposes the re-imageination of international law as a ‘pure means’
of representation rather than a means of exercising control over the world.
KEYWORDS. Control; International Law; Representation; Time; Violence; Walter
Benjamin.
It’s better to invent, to fantasise, to leave open the possibility for action, than to take part in a real action
that would only satisfy the desires of others, and contribute to one’s own entrapment, as a person playing
a role.
(Fry 2013, p. 20 – emphasis added).

This is a version of an article in Law and Critique. The final publication is available at Springer via
http://dx.doi.org/10.1007/s10978-015-9170-z
2
Debates about what international law is and the method by which it is practiced have become
stale. If one person says it is about rules another will emphasise their indeterminacy.
1
Someone might then ask how we can continue to ‘do’ international law if there is so much
indeterminacy and, at this point, we will probably agree on some kind of ‘formalism’, some
sense in which all that matters is that we speak the same language (on the ‘culture of
formalism’ see Koskenniemi 2001, pp. 503-9).
If, however, the conversation starts with the suggestion that international law is a
‘process of communication’ between the most powerful ‘participants’ someone will probably
ask how this is a normative account of law rather than an apology for power (see Reisman
1981, p. 101, and Higgins 1978, p.15-16; on the ‘apologist for power’ critique see Schachter
1985, pp. 272-3). Someone else might object that normativity is just code for rules and before
long we will be back to talking about the nature of rules. Light and shade might be added to
the conversation by asides about the move away from state consent towards a constitutional
legal order or the shift from the state to non-state actors (see Klabbers, Peters and Ulfstein
2009; Dunoff and Trachtman 2009), but it seems we have to find some code word or trend –
constitutionalism, formalism – to stop or at least contain the debate for fear it might unravel
the discipline.
This imagined conversation is a rough sketch of twentieth into early twenty-first
century thinking about international law’s nature and practice. It tells us something about past
efforts to think within and through international law, tracking the transition from a quasi-
scientific positivism of rules, state practice, and law-making treaties (Oppenheim 1908), via a
post-war policy science (Lasswell and McDougal 1992), to a late-twentieth century
professional language which, despite its critical origins (Koskenniemi 2005; Kennedy 1987),
1
See Koskenniemi (2005, p. 59) on ‘“ascending”’ and ‘“descending”’ styles of legal argument.

This is a version of an article in Law and Critique. The final publication is available at Springer via
http://dx.doi.org/10.1007/s10978-015-9170-z
3
is now cautiously embraced in a return to the positivist tradition (d’Aspremont 2011, pp. 27-
9). The conversation has become hermetic and self-interested. Overwhelmed by anxieties of
control over reality – anxieties about the absence of legal control over the world and the
effects of such control as it is able to exercise – international law has retreated into itself to
such an extent that Martti Koskenniemi can declare ‘international law’s objective’ to be,
among other things, ‘always … international law itself’ (Koskenniemi 2010, p. 52).
Preservation of the discipline and its semblance of control over the world is the
primary objective.
2
Conservative efforts to stabilise the discipline and its method are
presented as solutions to its anxieties of control – the International Law Commission’s (ILC)
work on fragmentation is the most obvious recent example of this (ILC 2006a; 2006b). The
belief that international law was breaking apart as it tackled ever more diverse issues through
ever more diverse regimes and institutions led the Commission’s fragmentation study group
to what seems like a platitude: ‘[i]nternational law is a legal system’ (ILC 2006a). The
apparent aim was to reassure lawyers that no matter how complex the world had become, no
matter how diverse the values, principles, and policies, international law and its method could
cope. Questions about the method’s impact on the world are absent from the ILC’s work; the
study is an inquiry into legal method for legal method’s sake.
3
This exemplifies a wider sense of crisis in the discipline. The more international law
is confronted with a complex and fragmented reality of competing values and complex
choices the more it retreats into conservative self-reassurance. To fully explore questions of
2
Benjamin (2004a, p. 239): ‘the law’s interest in a monopoly of violence vis-à-vis individuals is explained not
by the intention of preserving legal ends but, rather, by the intention of preserving the law itself’.
3
See International Law Commission (2006b, p. 14, para. 14): ‘although there are “problems”, they are neither
altogether new nor of such nature that they could not be dealt with through techniques international lawyers
have used to deal with the normative conflicts that have arisen in the past’.

This is a version of an article in Law and Critique. The final publication is available at Springer via
http://dx.doi.org/10.1007/s10978-015-9170-z
4
nature and method would risk the future of the discipline, so it is (apparently) preferable to
avoid such questions and keep on using the ‘toolbox’.
4
Only radical projects of re-
imageination – projects which see international law anew, which re-image international law –
can address the anxieties of control which led to this self-interested, hermetic conversation,
reconnecting the discipline with the reality it seeks to control and preventing international
law becoming nothing more than an elite club that exists to sustain its members’ power and
influence.
5
In this article I propose a re-imageination of international law; an abandonment of
attempts to control reality through international law in favour of the representation of reality
by international law.
6
Anxieties of control/anxieties of influence
The discipline’s anxieties of control – anxieties about international law’s control over reality
– can, I argue, be traced to an anxiety of influence. The term ‘anxiety of influence’ is Harold
Bloom’s and Susan Marks has considered its relevance for international law (Bloom 1997;
Marks 2006). For Bloom it signifies the poet’s effort to break with her predecessors by
4
Ibid (p. 17, para. 20).
5
See Benjamin (2002, p. 462, N2a,3): ‘image is dialectics at a standstill. For while the relation of the present to
the past is a purely temporal, continuous one, the relation of what-has-been to the now is dialectical: is not
progression but image, suddenly emergent. – Only dialectical images are genuine images (that is, not archaic);
and the place where one encounters them is language. Awakening.’; See also Parfitt (2014, p. 297) on ‘a
revolutionary re-imagining of the discipline’ as a means of overcoming international law’s Eurocentrism. My
use of ‘re-imageination’, as opposed to ‘re-imagination’, conveys the distinctly Benjamin character of the
approach advocated.
6
See Benjamin (1998, p. 27): ‘It is characteristic of philosophical writing that it must continually confront the
question of representation’.

Frequently asked questions

Q1. What are the contributions mentioned in the paper "Walter benjamin and the re-imageination of international law" ?

Drawing on the work of Walter Benjamin, Harold Bloom, and Theodor Adorno this article proposes the re-imageination of international law as a ‘ pure means ’ of representation rather than a means of exercising control over the world. 

Q2. What does the author say about the re-imageination of international law?

Re-imageination disperses law’s violence, removing the possibility of playing the ‘role’ of the lawyer, by abandoning the notion that there are particular forms or methods which only lawyers understand. 

Q3. What is the key to re-imageination of the discipline?

Re-imageination of the discipline depends on how the authors choose to write about the nature and theory of the discipline now because today’s texts are tomorrow’s ‘past texts’. 

Q4. What is the meaning of re-imageined law?

Re-imageined in these terms legal practice becomes an effort to reach for the divine, for reality, in the knowledge that the divine cannot be reached, and law becomes a ‘pure means’ of re-presentation, a constantly reformed and re-imageined ‘idea’. 

Q5. Why is the court not applying the method to conserve it?

The method is not applied to conserve it, as in cases of absence; fidelity to past influences is so strong that the need for reflection on the method’s violence does not, apparently, occur to those applying it. 

Q6. What is the sign of genuine knowledge?

The more clearly mathematics demonstrate that the total elimination of the problem of representation … is the sign of genuine knowledge, the more conclusively does it reveal its renunciation of that area of truth towards which language is directed. 

Q7. Why does the court deny existence and legitimacy to particular forms of social ordering?

In both cases the court violently denies existence and legitimacy to particular forms of social ordering because of an anxiety to be faithful to its established ways of thinking. 

Q8. What is the connection between influence and control?

12International legal thinking’s prioritisation of tradition and formalism over expressionand representation is a product of the connection between influence and control. 

Q9. What is the easiest way to advance an argument within a discipline?

Adopting and adapting the language or concepts of predecessors or, in Orford’s terms ‘making meaning move across time’, is the easiest way to advance an argument within a discipline, and this explains the heritage and tradition underpinning the ILC’s fragmentation study and Martti Koskenniemi’s argument for a ‘culture of formalism’ (Koskenniemi 2001, pp. 504–9). 

Q10. What did the controversy surrounding the 2003 invasion of Iraq do to the international legal mood?

The controversy surrounding the 2003 invasion of Iraq did nothing to restore faith in the Council but multilateralism seemed resurgent with the 2011 response to widespread loss of life in Libya. 

Q11. How does international law trust its media?

International law trusts its media, its lenses, in the same way that the friends in Beirut trust their televisions and newspapers, preferring and re-asserting familiar structures when faced with unfamiliar representations. 

Q12. What is the way to re-imageine international law?

Whilst it may seem like there is no way out of adherence to method, process, and form, no way to cast off the discipline’s anxieties of influence and control, the extent to which international law can re-imageine itself by prioritising engagement with and representation of present reality depends on the ambition and open-mindedness of today’s thinkers and practitioners. 

Q13. What is the reason for the anxiety to be faithful to established legal methods and forms?

This is caused by an anxiety to be faithful to established legal methods and forms, so allencompassing that it precludes consciousness of or reflection on the violence that legal practice enacts. 

Q14. What can the authors do to displace responsibility for biodiversity loss on the high seas?

The authors can displace responsibility for continuing biodiversity loss on the high seas onto legal method and form, but the authors can equally question whether it is possible to imageine models of legal practice that encourage creative, experimental arguments, transcending ‘past texts’ on the basis of evolving, present realities. 

Q15. Why did the court unreflectively assert its preferred, vague, secular form of democracy?

This drives the court to unreflectively assert its preferred, vague, secular form of democracy, apparently motivated by a fear that democracy’s pluralism may be its undoing: ‘the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history’