1 F. Kafka, The Metamorphosis (1972).

2 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument. Reissue with New Epilogue (2005), 542–8, 614–17.

3 S. Critchley, Infinitely Demanding: Ethics of Commitment, Politics of Resistance (2008), 103.

4 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001).

5 U. Eco, The Role of the Reader: Explorations in the Semiotics of Texts (1979), 10–11.

6 P. Allott, Eunomia: New Order for a New World (2001), 24–6 (paras. 2.26–2.30) (referring to the ‘genetic material’ of an idea).

7 J. Butler, The Psychic Life of Power: Theories in Subjection (1997), 2; Foucault, M., ‘The Order of Discourse’, in Young, R. (ed.), Untying the Text: a Post-Structuralist Reader (1981), 51 Google Scholar.

8 Kennedy, D., ‘The Last Treatise: Project and Person (Reflections on Martti Koskenniemi's From Apology to Utopia)’, (2006) 7 German Law Journal 982 Google Scholar, at 991.

9 Schlag, P., ‘The Problem of the Subject’, (1991) 69 Texas Law Review 1627 Google Scholar, at 1702 (noting this problem within the American critical legal studies tradition).

10 This section is largely based on my chapter in W. Werner et al. (eds.), The Law of International Lawyers. Reading Martti Koskenniemi (forthcoming, 2016).

11 Crawford, J., Introductory Remarks to Martti Koskenniemi's, ‘The Wonderful Artificiality of States’, in (1994) 88 Proceedings of the American Society of International Law 22 Google Scholar, at 22.

12 See the comments of Robert Jennings in A. Cassese, Five Masters of International Law (2011), 145–6.

13 S. Singh, ‘International Legal Positivism and New Approaches to International Law’, in J. d'Aspremont and J. Kammerhofer (eds.), International Legal Positivism in a Post-Modern World (2014), 291–313 (exploring various techniques of disempowerment under the guise of discussion).

14 Kennedy, D., ‘Spring Break’, (1985) 63 Texas Law Review 1377 Google Scholar; Koskenniemi, M., ‘Letter to the Editors of the Symposium’, (1999) 93 American Journal of International Law 351 CrossRefGoogle Scholar.

15 Koskenniemi, supra note 14, at 356.

16 M. Horkheimer, ‘Traditional and Critical Theory’ in Critical Theory: Selected Essays (2002), 188–243.

17 It is not a deconstructionist method as some authors assumed (before critiquing the book on this basis) (see, e.g., Scobbie, I., ‘Towards the Elimination of International Law: Some Radical Scepticism about Sceptical Radicalism’, (1990) 61 British Yearbook of International Law 339 CrossRefGoogle Scholar). Koskenniemi has often referred to adding a ‘deconstructive’ technique to his structuralism (not to mention that these referrals always use inverted commas), but was all too aware that many would not classify it as such (Koskenniemi, From Apology to Utopia, supra note 2, at 10 and fn. 8). See also Singh, supra note 13, 296–9.

18 Koskenniemi, supra note 14, at 355.

19 Koskenniemi, supra note 2, at 541.

20 Ibid., at 537–41.

21 Ibid., at 540.

22 Ibid., at 541–8.

23 Ibid., at 544–5.

24 Ibid., at 547.

25 Ibid., at 548.

26 Ibid., at 549.

27 In this section I rely heavily upon, but go beyond, Pierre Schlag's argument regarding American critical legal thought; see generally Schlag, supra note 9, at 1679–1705.

28 A. Supiot, Homo Juridicus: On the Anthropological Function of the Law (Saskia Brown (tr.), 2007), 6: ‘A truly scientific method aims to efface the subject in favour of the object and cannot therefore explain what founds the subject’.

29 See M. Foucault, The Archaeology of Knowledge, (A. Sheridan Smith, (tr.), 1972), 200. For the influence of Foucault on Koskenniemi see Koskenniemi, supra note 2, at 7 and fn. 2, 73 and fn. 6.

30 I use the masculine, because the critic's image in this text is a projection of its author, Martti Koskenniemi.

31 Koskenniemi, supra note 2, at 542.

32 Ibid., at 553 (emphasis added).

33 Ibid., at 561.

34 For an exploration of the connection between structuralism/ideology critique and emancipatory politics in American critical legal studies see, Boyle, J., ‘The Politics of Reason: Critical Legal Theory and Local Social Thought’, (1986) 133 University of Pennsylvania Law Review 685 CrossRefGoogle Scholar, at 743–5; Gabel, P. and Kennedy, D., ‘Roll over Beethoven’, (1984) 36 Stanford Law Review 1 CrossRefGoogle Scholar, at 53–4.

35 J-P. Sartre, Being and Nothingness: An Essay on Phenomenological Ontology (H. Barnes (tr.), M. Warnock (intr.), 2003), 27.

36 On the object: ‘Being-in-itself (être-en-soi): Non-conscious Being. It is the Being of the phenomenon and overflows the knowledge which we have of it. It is a plenitude, and strictly speaking we can say of it only that it is.’ Ibid., at 650 and see also, 18–21. On the subject: ‘But it would be necessary to complete the definition and formulate it more like this: consciousness is a being such that in its being, its being is in question in so far as this being implies a being other than itself.’ at 18 (original emphasis).

37 Ibid., at 28.

38 H. Marcuse, ‘Sartre's Existentialism’, in Studies in Critical Philosophy (J. de Bres (tr.), 1972), 157, 171–7.

39 Sartre, supra note 35, at 28.

40 Ibid., at 29.

41 Ibid., at 29 and see also 53–5.

42 Ibid., at 63 (emphasis added).

43 ‘The first procedure of a philosophy ought to expel things from consciousness and to reestablish its true connection with the world, to know that consciousness is a positional consciousness of the world’, ibid., at 7 (original emphasis).

44 Sartre considers this the only mode by which to become conscious of an object: ‘The self-consciousness we ought to consider not as a new consciousness, but as the only mode of existence which is possible for a consciousness of something.’ Ibid., at 10 (original emphasis).

45 T. Adorno, ‘Subject and Object’ in A. Arato and E. Gebhart, The Essential Frankfurt Reader (1985), 497, 498–9.

46 ‘In particular the coefficient of adversity in things can not be an argument against our freedom, for it is by us – i.e., by the preliminary positing of an end – that this coefficient of adversity arises. . . . Thus although brute things (what Heidegger calls “brute existents”) can from the start limit our freedom of action, it is our freedom itself which must first constitute the framework, the technique, and the ends in relation to which they will manifest themselves as limits.’ Sartre, supra note 35, at 503–4 (original emphasis).

47 ‘The technical and philosophical concept of freedom, the only one which we are considering here, means only the autonomy of choice. . . . Thus we shall not say that a prisoner is always free to go out of prison, which would be absurd, nor that he is always free to long for release, which would be an irrelevant truism, but that he is always free to try to escape (or get himself liberated); that is, that whatever his condition may be, he can project his escape and learn the value of his project by undertaking some action.’ Ibid., at 505.

48 Koskenniemi, supra note 2, at 548 (emphasis added).

49 ‘In occupying and fulfilling roles which are open to us we reproduce those imaginative and institutional constraints through which any particular society establishes its identity. . . . Simultaneously, roles are a constant threat to consciousness to identity. There is this dilemma: to participate in routine, one needs to do this through a role. But the more one immerses oneself in one's role, the less one is actually participating as a conscious agent at all. . . . For the international lawyer, social existence means participation in legal routine and yet doing this so as not to be wholly submerged in it.’ Ibid., at 549–50 (emphasis added). You will notice that the subject remains in control of the constraints, but is never constituted by them; constraints are rather produced by and upon the individual.

50 Sartre, supra note 35, at 545–8.

51 See generally Marcuse, supra note 38.

52 Sartre, supra note 35, at 574–7.

53 M. Koskenniemi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’, in The Politics of International Law (2011) 271, 293.

54 Sartre, supra note 35, at 574–5.

55 Koskenniemi, supra note 2, at 548.

56 Ibid., at 554.

57 See generally P. Sloterdijk, Critique of Cynical Reason (M. Eldred (tr.), 1988) (on critique as a form of a war on consciousness).

58 I bracket any questions of the viability of this form of critique, but false consciousness critique has had a number of detractors. See M. Heidegger, What is Called Thinking (F. Wieck and S. Gray (tr.), 1968), 34; Sloterdijk, supra note 57, at 3–137; M. Foucault, ‘Two Lectures’, in C. Gordon (ed.), Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (1980), 78. Koskenniemi has briefly intimated as the possible ‘naivety’ of his critical method, but whether this is his position, or of his critics is unclear. See Koskenniemi, M., ‘The Politics of International Law – 20 Years Later’, (2009) 20 EJIL 7 CrossRefGoogle Scholar, at 8.

59 This is also a natural consequence of Sartre's metaphysic and rationalism. Specifically it is the consequence of the definitions of the object and subject, the subject-object hierarchy and, in particular, the rule of the Master-Slave dialectic in the relationship between self and Other – which is a thoroughgoing of Sartre's philosophy. On the relationship between ego and Other, see Sartre, supra note 35, at 383–452.

60 Koskenniemi, supra note 2, at 547.

61 For a recollection on the relentless pattern of the Sartrean metaphysic, see above Section 2.2.

62 There is an argument that we see two ideas of freedom in Sartre: ontological freedom and what he calls ‘freedom of obtaining’. The first conditions the second, and the second presupposes the functioning of the first. At the heart of my analysis is the understanding that Sartre collapses his ontological inquiry into the realm of the real, i.e., the concrete, historical context. Some authors may reasonably disagree with this. Marcuse and Merleau-Ponty supported my reading, but Simone de Beauvoir famously defended Sartre against these readings. See Sartre, supra note 35, at 483–4 (on ‘freedom of obtaining’); Marcuse, supra note 38; J. Stewart (ed.), The Debate Between Sartre and Merleau-Ponty (1998); Beauvoir, S. de, ‘Merleau-Ponty and Pseudo-Sartreanism’, (1989) 21 International Studies in Philosophy 3 CrossRefGoogle Scholar.

63 Koskenniemi, supra note 2, at 549.

64 See note 31 and accompanying text for a better understanding of how this may play out. Koskenniemi's structuralism does not seek to efface the subject.

65 This, in part, is why it has been so easy for people like Stanley Fish to deconstruct the very form of critique we see in Koskenniemi's From Apology to Utopia (although he applied it to American critical legal studies). See S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989), 457–67. But Maurice Merleau-Ponty believed that this type of philosophy, and Fish's critique, both fell into what he called the ‘rationalist's dilemma: either the free act is possible, or it is not – either the event originates in me or is imposed on me from the outside.’ M. Merleau-Ponty, Signs (R. McCleary (tr.), 1964), 227.

66 M. Merleau-Ponty, Phenomenology of Perception (C. Smith (tr.), 1962), 455.

67 See for example that which is implied colonial and postcolonial projects within Third World Approaches to International Law and in S. Marks, ‘False Contingency’, (2009) 62 Current Legal Problems 1.

68 Schlag, supra note 9, at 1697.

69 Rancière, J., ‘The Thinking of Dissensus: Politics and Aesthetics’, in Bowman, P. and Stamp, R. (eds.), Reading Rancière (2011), 1 Google Scholar, 13.

70 Michelman, F., ‘The Subject of Liberalism’, (1994) 46 Stanford Law Review 1807 CrossRefGoogle Scholar, at 1831 (making the point in regards the liberal subject).

71 Schlag, supra note 9, at 1697.

72 See generally Koskenniemi, supra note 2, at 71–157.

73 Sartre, J-P., ‘Matérialisme et Révolution’ (1946), 1 Les Temps Modernes 9 Google Scholar, at 14.

74 M. Koskenniemi, ‘International Law Between Fragmentation and Constitutionalism’ Speech, 18 May 2003 (Recife, Brazil), 15 (para. 31).

75 Koskenniemi, supra note 4, at 10.

76 O. Korhonen, ‘Innovative International Law Approaches and the European Condition’, in J. Beneyto and D. Kennedy, New Approaches to International Law: The European and American Experiences (2012), 193, 206.

77 Koskenniemi, supra note 4, at 504; Koskenniemi, supra note 14.

78 Koskenniemi, supra note 58, at 16.

79 Frustration at the lack of methodological clarity has been noted elsewhere, see Galindo, G., ‘Martti Koskenniemi and the Historiographical Turn in International Law’, (2005) 16 European Journal of International Law 539 CrossRefGoogle Scholar, at 546.

80 Koskenniemi, supra note 4, at 8.

81 See R. Rorty, Contingency, Irony and Solidarity (1989), xvi; see also R. Bernstein, The Pragmatic Turn (2010), 207–13. For Koskenniemi's appreciation of narrative as opening a discourse in much the same way as heterodox traditions, see Koskenniemi, M., ‘Histories of International Law: Dealing with Eurocentrism’, (2011) 19 Rechtsgeschichte 152 CrossRefGoogle Scholar, at 179.

82 Weber, M., ‘Science as a Vocation’, in Gerth, H. and Mills, C. (eds.), From Max Weber: Essays in Sociology (1946), 129 Google Scholar, at 155.

83 For a general discussion see Singh, S., ‘The Potential of International Law: Fragmentation and Ethics’, (2011) 24 LJIL 23 CrossRefGoogle Scholar; and Lang, A. and Marks, S., ‘People with Projects: Writing the Lives of International Lawyers’, (2013) 27 Temple International & Comparative Law Journal 437 Google Scholar.

84 Koskenniemi, supra note 58, at 16.

85 Koskenniemi, M., ‘The Fate of Public International Law: Between Technique and Politics’, (2007) 70 Modern Law Review 1 CrossRefGoogle Scholar, at 26.

86 Koskenniemi, supra note 58, at 15.

87 Koskenniemi, M., ‘Miserable Comforters: International Relations as a New Natural Law’, (2009) 15 European Journal of International Relations 395 CrossRefGoogle Scholar, at 411.

88 Sloterdijk, supra note 57, at xxxiii.

89 Koskenniemi, supra note 4, at 7.

90 Ibid., at 2 and 5–6.

91 Ibid., at 2.

92 Ibid.

93 Koskenniemi, supra note 58, at 18.

94 Koskenniemi, supra note 4, at 5 (original emphasis).

95 See, for example, Boyle, supra note 34, at 742; Gordon, R., ‘New Developments in Legal Theory’, in Kairys, D. (ed.), The Politics of Law: A Progressive Critique (1990), 413 Google Scholar, 422; Unger, R., ‘The Critical Legal Studies Movement’, (1983) 96 Harvard Law Review 561 CrossRefGoogle Scholar, at 584.

96 ‘The resoluteness in which Dasein comes back to itself, discloses current factical possibilities of authentic existing, and discloses them in terms of the heritage which that resoluteness, as thrown takes over.’ M. Heidegger, Being and Time (J. Macquarrie and E. Robinson (tr.), 1962), 435 (original emphasis).

97 ‘Dasein cannot get behind throwness’, ibid., at 330.

98 Koskenniemi, supra note 4, at 406.

99 Ibid., at 80.

100 Ibid., at 53.

101 Koskenniemi, M., ‘Lauterpacht: The Victorian Tradition in International Law’, (1997) 8 European Journal of International Law 215 CrossRefGoogle Scholar, at 261.

102 Koskenniemi, supra note 4, at 72.

103 See M. Heidegger, ‘The Question Concerning Technology’ in The Question Concerning Technology and other Essays (1977).

104 See K. Whiteside, Merleau-Ponty and the Foundation of Existential Politics (1988), 71.

105 S. Critchley, Very little . . . almost nothing: Death, philosophy, literature (2^nd edn., 2004), 236.

106 Koskenniemi, supra note 4, at 494–509.

107 Sloterdijk, supra note 57, at xxxvi.

108 This is perhaps unsurprising given that some critical international lawyers have argued that they do not deem it viable to both practice, or offer substantive arguments, and remain loyal to critique. See Craven, M., Simpson, G., et al., ‘We are teachers of International Law’, (2004) 17 Leiden Journal of International Law 363 CrossRefGoogle Scholar.

109 Koskenniemi, supra note 4, at 57–8.

110 Ibid., at 516.

111 Ibid., at 76–7 (original emphasis).

112 Koskenniemi, M., ‘Theory: Implications for the Practitioner’, in Allott, P. (ed.), Theory and International Law (1991), 1 Google Scholar, 45. See also Koskenniemi, supra note 4, at 516.

113 Koskenniemi, M., ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’, (2012) 26 International Relations 3 CrossRefGoogle Scholar, at 19.

114 Ibid., at 19.

115 Koskenniemi, supra note 85, at 30.

116 Laclau, E., ‘Deconstruction, pragmatism, hegemony’, in Mouffe, C. (ed.), Deconstruction and Pragmatism (1996), 47 Google Scholar, 53.

117 Koskenniemi, supra note 4, at 508 (emphasis added).

118 Ibid., at 507.

119 E. Laclau, Emancipations (1996), 92.

120 Here we see the difference between deconstructionists, structuralists and positivists (Hart, Kelsen). Each – irrespective of the level of indeterminacy for which they argue – would not deny the non-grounded nature of a decision. At a different level of analysis, it would be suspect to conclude the Koskenniemi expands his indeterminacy thesis, from a certain structuralism, to the deconstruction of Ernesto Laclau; even if he does rely on the latter's theory of the decision. But Koskenniemi would no doubt agree with Laclau when he says: ‘what counts as a valid decision will have the limits of a structure which, in its actuality, is only partially destructured. The madness of the decision is, if you want, as all madness, a regulated one.’ Laclau, supra note 116, at 57.

121 Ibid., at 48.

122 Laclau, supra note 116, at 48.

123 Koskenniemi, supra note 4, at 505–6.

124 Koskenniemi, supra note 74, at 18.

125 Koskenniemi, supra note 4, at 502.

126 Ibid., at 503 (emphasis original).

127 Ibid., at 516. See also Koskenniemi, M., ‘Formalism, Fragmentation, Freedom: Kantian Themes in Today's International Law’, (2007) 4 No Foundations 7 Google Scholar, at 23.

128 Korhonen, supra note 76, at 214–1919.

129 Koskenniemi, supra note 74, at 16 (para. 32); see also Koskenniemi, M., ‘Constitutionalism as a Mindset: Reflections on Kantian Themes About International Law and Globalization’, (2007) 8 Theoretical Inquiries in Law 9 Google Scholar, at 18.

130 Koskenniemi, supra note 87, at 414–15.

131 Koskenniemi, supra note 74, at 21 (para. 29).

132 We see this tension play out differently in two main texts: Koskenniemi, ‘Formalism, Fragmentation, Freedom’, supra note 127, at 23–34; and Koskenniemi, supra note 74, at 15–16.

133 H. Arendt, Between Past and Future (1968), 221.

134 E. Laclau, New Reflections on the Revolution of our Time (1990), 60.

135 ‘[W]e do simply have subject positions within the structure, but also the subject as an attempt to fill these structural gaps. That is why we do not have just identities but, rather, identification.’ Laclau, supra note 116, at 210.

136 Laclau, supra note 134, at 61 (‘any subject is, by definition, political’).

137 ‘Thus every decision process with an aspiration to inclusiveness must constantly negotiate its own boundaries as it is challenged by new claims or surrounded by new silences.’ Koskenniemi, supra note 4, at 508.

138 Schlag, P., ‘“Le Hors de Texte, C'est Moi”: The Politics of Form and the Domestication of Deconstruction’, (1990) 11 Cardozo Law Review 1631 Google Scholar, at 1667–8.

139 Koskenniemi, ‘Formalism, Fragmentation, Freedom’, supra note 127, at 24.

140 Sloterdijk, supra note 57, at xxxiv. See also Koskenniemi, supra note 87.

141 Rorty, supra note 81, at xv–xvi.

142 J. Baudrillard, La Transparence du Mal: Essai sur les Phénomènes Extrêmes (1990), 97.

143 Koskenniemi, supra note 74, at 15 (para. 31).

144 Foucault, M., ‘What is an Author?’, in Faubion, J. (ed.), Aesthetics, Method and Epistemology (R. Hurley and others (tr.), 1998), 205 Google Scholar, 217.

145 Kennedy's is a more ethnographic approach, see Kennedy, D., ‘When Renewal Repeats: Thinking Against the Box’, (2000) 32 New York University Journal of Law and Politics 335 Google Scholar.