Introduction
In times of political crisis and attacks against the foundations of political liberalism, can we put our trust in lawyers and other legal occupations to fight for our freedoms, when they are under attack? The role of the legal profession in the rise, development, and resilience of political liberalism — basic legal freedoms, an open civil society, and a moderate state — has been central to a body of work commonly framed as “the legal complex”. It has tracked the phenomenon of the legal profession mobilizing in the name of the law across time and space — “as stewards of values they understood as implicit in the very idea of the rule of law – even-handedness, due process, freedom of expression, political moderation, limited executive power” (Feeley and Langford 2021, 3)—indeed, where the very nature of the institution of law is what is ideationally defended.
Drawing on a recent review essay published in Law & Social Inquiry, this blog entry reflects on the notion of a legal complex for the resilience of what in academic parlance is referred to as the liberal international order — the liberal and expansive legalization of global governance that followed the end of the Cold War — and a political order currently in crisis.
Rescaling the Legal Complex
Legal complex literature has hitherto primarily been concerned with lawyers’ mobilization within domestic state structures, to achieve political change within the nation state. To rescale the legal complex, it may be worthwhile connecting the legal complex scholarship more deeply with bodies of literature on professional networks and social movements that address the role of the law and the legal profession in fighting for political liberalism — though here at the transnational and global levels of analysis.
For example, scholarship on transnational advocacy networks emphasize how collective entities — networks — mobilize around values, rather than around material interests. One of its core dynamics is the so-called boomerang effect of transnational mobilization, whereby networks in one (repressive) state appeal to networks in another state to mobilize their state to increase political pressure on the repressive state in question. This kind of transnational outreach is a common strategy of national legal complexes — and one adopted increasingly often, given the growth of international law and strategic litigation in recent decades. In the fight against impunity for international crimes, the transnationalization of legal complexes are apparent, as domestic legal complexes may resort to transnational networks and institutions to push their (often repressive) states to ratify and implement legislation, and enforce legal protections for basic human rights. In autocracies and under conditions of autocratization (but where civil society engagement is still possible), transnational connections may be even more important for legal complexes. Recent technological advances may also facilitate the transnational connections of lawyers and civil society in national legal complexes (alternatively, repress them more effectively).
Second, a significant part of the current sociological literature on international law-making has been concerned with the prominent role of legal power networks in crafting international law, or, rather, transnational legal fields as part of the effort to craft a rules-based international liberal order (or, some might say, a judicialization of international politics). The sociology of international law has revealed the dynamics at play in the international liberal order’s emergence and development, including in the fields of development, international criminal justice, human rights, humanitarianism, and rule of law promotion. This scholarship has provided insights into the fundamental structural inequalities and power struggles within international law, including its colonial trajectories and continuities.
Amid growing anxieties and commentaries about the “collapse” or “death” of the liberal international order, there is an urgent need for the sociology of international law to explore its resilience, as regards both its representation of international power structures and its vision based on values of political liberalism, democracy, human rights, and the rule of law. Suggesting that the work of an international legal complex has been fundamental to the emergence (and expansion) of the liberal international order, I call for a revival of legal complex scholarship—but one retuned and rescaled to the fight for political freedom that is grounded in a critical cosmopolitanism.
The Legal Complex in a Post-Liberal International Order
Legal complex literature seems well able to handle the task of considering the resilience of the liberal international order, for several reasons.
First, research into the legal complex keeps a close watch on the rising trends of illiberal politics—the fight for political freedom being fundamental to the justification for exploring the role of the legal complex in the first place. More importantly, studies of the legal complex have mainly addressed mobilization for political liberalism in situations of pushback and repression, and the liberal legacies—if any—of illiberal (colonial) governance. That said, the rescaling from nation-state politics to international politics necessarily entails a lesser focus on constitutionalism and domestic legal institutions (including the organized bar) and more attention to basic liberal rights as they are expressed in cosmopolitan ethics and multilateral institutions, such as international courts. Asking about the significance of the legal complex for the resilience of the liberal international order thus leads to the question of the legal profession’s collective mobilization for basic human rights through international professional networks and international courts.
Fates of Political Liberalism in the British Post-Colony puts forward a particularly useful framework for conceptualizing (colonial) legal power. While the overall legal discourse of the British colonizers was based on political liberalism and the universal application of the rule of law, in practice, colonial legal power worked through two “reservations”: namely the permanent ability to invoke the state of exception and the rule of difference between colonizers and colonized. To what extent, however, have these features also been part of the liberal-legal project of the international liberal order?
As concerns the state of exception, we cannot ignore the mass of scholarship critiquing Western powers — and particularly the US, as the hegemon of the liberal international order — for double standards, hypocrisy, and downright disregard for international law, for example during the global war on terror. Part of this critique also applies to Western states and their allies’ invocation of the right to self-defense to derogate from international human rights law and humanitarian law in their (armed) response to serious terror attacks.
The way in which the rule of (racial) difference masquerades the universality of liberal (international) politics, connects to a longstanding and fundamental criticism of the entire international liberal order, namely, that racial inequalities and global power differences undermine the universality of the international legal system. This charge has been leveled particularly against the International Criminal Court (ICC). Unable to get rid of the tainted legacy from Nuremberg of winners’ justice, in 2016, condemnation of international criminal justice’s selective application of justice culminated in the threat of mass withdrawal by African Union states, largely because the ICC was at that time involved only in conflicts on the African continent. The ICC’s “Africa-problem” has now eased somewhat since it has been involved in conflicts and situations outside of Africa, but accusations that the ICC is a neo-colonial Western imperialist (legal) tool continues to throw the legitimacy of the system into question. More recent, the ICC has been criticized for double standards with regard to the victims of the wars in Ukraine and Palestine, with Western states uniting to mobilize and provide funds and personnel to the ICC to investigate crimes committed in Ukraine, while being divided, reluctant and, at times even obstructive, over international criminal justice in Palestine, as is the case with the US sanctions against the ICC. The latter development — supposedly liberal states actively undermining the legitimacy of the system — is of course a particularly dangerous and existential threat to the ICC and the Rome Statute system of justice.
These political dynamics and developments raise several questions. First, while we know that states and geopolitics matter for the realpolitik of international law, justice, and the realization of basic human rights, we also know that non-state actors, norms, and values play a critical role in constituting the international as a normative order too. It would be very interesting if more scholarly attention were given to an international legal complex operating above and beyond nation-state politics—perhaps even in direct opposition to national interests. For example, it might be considered whether international lawyers at times bypass the state completely, operating as “spokesmen” or intermediaries between multilateral legal institutions and a global public, or are invariably anchored to the(ir) nation state? Global governance is as much a web of government networks of judges, legislators, and police investigators as a product of centralized government; in other words, the state is fragmented and our international order is a networked international order composed of transnational professionals. To what extent, therefore, are we now seeing transnational networks of legal complexes mobilizing for liberal legalism at the international level?
Another crucial issue regarding the resilience of liberal legalism and international law is the extent to which both the state of exception and the rule of difference are being challenged by geopolitical shifts and international power struggles, perhaps in parallel to the justification for examining the “resiliency” of political liberalism in the British post-colonies. It is noteworthy that it is South Africa—a BRICS state and African regional power—that has mobilized international law and the International Court of Justice in defense of Palestine. Moreover, the ICC is at the time of this writing still pursuing legal accountability for war crimes and crimes against humanity committed by both Hamas and Israel—despite significant legal and political hurdles by directly opposing big (Western) power interests. The ICC has also issued arrest warrants for Russian leaders responsible for war crimes and crimes against humanity in Ukraine, including President Vladimir Putin. While there is no need to speculate about the legal outcomes and impacts of these international legal processes, it is significant that these developments represent a greater—indeed, universal—application of international law than was the case previously.
At the same time, the fact that international law has become a lingua franca for legitimizing action by illiberal states also calls, of course, for more meticulous analysis. For example, there are important questions to be answered as to whether the increased international “representativeness” of international law and its use (and abuse) means increased liberal-legalism (including respect for basic rights), or whether—as some research is already suggesting—that states such as China are changing the substance of international law and multilateral organizations. Moreover, there is a critically important literature exploring the role of the legal profession mobilizing against political liberalism, i.e. illiberal legal complexes including judges under stress and against justice.
This, then, begs the question whether, under conditions of increasing global autocratization, we are heading for an illiberal international order, ruled by international law, rather than an international rule of law.
Concluding Remarks
Despite this sober future-scoping on the fate of the international liberal project, the fact remains that the empire of international legalism is here to stay. As Hurd reminds us (2018, 265), “Legal justification is the lingua franca of legitimation contests among governments, as states strive to show that their preferred policies are lawful and that those they oppose are unlawful”. In Hurd’s view, the content of international law is already lost to discourse: international politics too has become judicialized to the extent that law, legal power — lawfare even — is but a crystallization of (international) politics.
Thus — and given the present repoliticization and restructuring of global politics (including increasing trends of autocratization, declining and fragmented multilateralism, and seismic geopolitical shifts) — there is much reason to pay close attention to whether — and if so, how — international law and liberal legalism are splitting apart, and to whether what lies ahead is an increasingly fragmented and volatile corpus of international law, with multiple legalism at play — liberal, non-liberal, illiberal, despotic even. Indeed, the fact that political liberalism is losing its foothold in the US (and Europe) — the hegemon of the liberal international order — poses acute questions of what will remain of the empire of international liberal-legalism.
From legal complex scholarship, we know that faced with coordinated political opposition, any legal complex stands a difficult chance at success — defending political freedoms and the rule of law. But we also know that resilience works best when lawyers and judges work in tandem — and with the support of legal academics and civil society. At the international level, legal professionals may also be somewhat less susceptible to restraints and co-optation by their domestic political authorities but may find strength (and security) in international networks and a cosmopolitan ethos of rule of law. At the same time, we also know that the imperial ‘reservations’ of laws of exception and rule of (racial) difference are sticky elements of liberal-legalism — both nationally and internationally — and that their consequences contribute to throw political orders into volatility and even tyranny. In the critical and collective work of fleshing out an anti-autocratic playbook for global politics, the importance of countering these two reservations/hypocrisies of international liberal legalism seem absolutely critical.