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Public International Law/Methodology/Interdisciplinarity

Authors: Silvia Steininger, Tamsin Phillipa Paige "Required knowledge: none" "Learning objectives: This chapter introduces law students to the basics of interdisciplinarity in public international law. Students will learn about the main strands of interdisciplinary scholarship and the most prominent methodological tools available. They will be able to fully grasp the benefits and challenges of adopting an interdisciplinary perspective on international law and receive helpful practical guidance in creating their own interdisciplinary legal research projects."This chapter introduces basic elements of interdisciplinarity in public international law. While the majority of international law scholarship is still dominated by doctrinal research, adopting interdisciplinary perspectives on the theory, history, and practice of international law has become increasingly important for students of international law. Students are requested to not only familiarize themselves with interdisciplinary methods, but also apply those insights to international law. However, most programs lack a thorough introduction to the conceptual toolbox of interdisciplinary research. This chapter aims to remedy this gap and show students why, when, and how to engage in interdisciplinary research projects.

A. Basics for Interdisciplinarity in Public International Law
The call for 'interdisciplinarity' has become a staple in international legal research. It 'can be seen everywhere, ranging from funding calls, research agendas, grant applications, conference themes and internet blogs to rhetorical manoeuvres.' Yet, the more interdisciplinarity gained in popularity, the fuzzier its meaning actually became. To move between disciplines comes with benefits and challenges. In this section, we want to sketch out the basics for what interdisciplinarity means, why it is useful, and how to start an interdisciplinary research project.

I. What is Interdisciplinarity?
In general terms, interdisciplinarity denotes research projects that aim at synthesizing and harmonizing knowledge and methods between two or more disciplines into a coordinated and coherent whole. It stands opposite of intradisciplinarity, which describes working exclusively in the boundaries of one single discipline. Interdisciplinarity thus requires that the general, theoretical as well as empirical assumptions between two or more disciplines are not in contradiction to each other. Moreover, it necessitates a strong, substantial and methodological understanding of those disciplines, which often takes significant amount of time and exposure to the relevant scholarly communities and their writings. Most international legal scholarship takes the form of transdisciplinary or multidisciplinary research, the latter describing persons from different disciplines working together on a common project, each drawing on their own disciplinary knowledge and expertise. This is usually achieved by multidisciplinary teams of authors. Transdisciplinarity attempts to create a unitary common framework among two or more disciplines, to find common research questions, harmonize definitions, and identify explanations that stretch over the scope of just one disciplinary horizon.

Critics of interdisciplinary scholarship argue that the emergence of x-disciplinarity (inter-, intra-, trans- and multi-disciplinarity) dilutes disciplinary boundaries, threatens the idea of a specialized profession and challenges central understandings such as legal autonomy. In fact, disciplines are not academic silos but overlap and interact with each other constantly. International law suits itself to interdisciplinary approaches, as many research questions necessitate at least a contextual understanding of law. Nevertheless, this should not underestimate the politics behind the turn to interdisciplinarity. In the words of Jan Klabbers, 'interdisciplinarity is a politically charged activity in itself.' Interdisciplinary approaches might reproduce, disguise, or even strengthen existing power relations. Adopting an interdisciplinary research agenda and methodological toolbox further requires additional opportunity costs, for instance to get access to methodological training or resources such as specific programs, which might exacerbates structural inequalities in academia. Interdisciplinarity can thus rupture disciplinary gatekeeping and democratize the creation of new knowledge on fundamental questions of international law, but also create additional barriers and adopt a marketized logic, in which research is guided by the use of fancy methodologies rather than research questions.

II. Why do interdisciplinary research?
Classical, doctrinal scholarship in international law usually adopts an internal view on law. The internal viewpoint takes the perspective of an insider to law, a law student, a professor, or practitioner, who was trained and socialized into the legal community. They participate in the legal discourse, are preoccupied with legal arguments, and decision-oriented. In contrast, interdisciplinary scholarship promotes an external view of law. It usually take the perspective of the outsider, who observes the processes, structures, and norms of international law in action. Interdisciplinary research allows to ask questions which go beyond the internal logic of law. It does not limit itself to how the law is, but also why the law has been applied in a certain way, and how it should be in the future. Interdisciplinary approaches enable the identification of causalities or at least indicate possible explanations for certain situations or developments in international law. They can also illuminate underlying patterns and structures, which have been overlooked, thus benefiting critical engagement with international law and providing support for improvement via interpretation or further development of the law.

III. How to do interdisciplinary research?
Naturally, there are countless options to analyze international law from an interdisciplinary perspective and we will give you more insights in the following section. However, in general, interdisciplinary research requires a more structural approach to international legal research. One can generally distinguish between five steps:

First, you need to familiarize yourself with the respective approaches in depth before the start of the research project. This requires to understand the underlying epistemological considerations, fundamental concepts, and classic authors, who have shaped the particular approach. Moreover, it is helpful to map the existing interdisciplinary engagement with international law. This is important not only to assess the state of the discipline and the topics that are being discussed, but also to identify the respective community, which underpins the respective research project. One can thereby learn how to approach the same topic from different angles, how to transpose fundamental concepts to the study of international law, and to get socialized into the respective academic and writing style.

Secondly, in contrast to classical, doctrinal research, interdisciplinary research embraces a more transparent and open structure. In general, the scholar will first identify the research question(s) and possible hypotheses and counterhypotheses before analyzing the data. That does not not mean that the availability and access to source material cannot guide the respective research design, but it means that the data does not predetermine the research questions. This is different to doctrinal research, in which the identification of structures and the categorization of cases is a major research aim in itself.

Thirdly, it is important that the respective researcher openly and transparently justifies the respective research design. Interdisciplinary scholarship often includes an explicit methodology section. In this section, the author justifies, among others, why this particular approach is useful for the study of international law, how this influences the research question(s), which factors guide the identification of hypotheses, what were the criteria required for the selection of research units, which methodologies are going to be applied, how is the data being gathered, and what are the limitations of this particular method. In general, the various empirical methods can be grouped in either qualitative, focusing on the interpretation of words and meanings of texts, or quantitative, focusing on the interpretation of numbers and statistics. Advanced scholars sometimes also apply so-called 'mixed methods"'which can include a combination of several qualitative and quantitative methods. At this stage, the author can also identify how the project relates to existing research or conflicting approaches and clearly limit the research agenda.

Fourthly, the researcher gathers the necessary data. Again, a variety of options exist, ranging from comparative research designs, to archival work, as well as qualitative and quantitative approaches, which will be highlighted in section D. This step might take significant time and require additional resources such as travel, software etc. It is also heavily reliant on factors outside of the control of the respective researcher, such as access to sources, for instance archives and interview partners.

Finally, the data will be evaluated with respect to the aforementioned research question. This often includes giving a systematic overview and highlighting particularly interesting or unexpected factors. Hypotheses can be confirmed or refuted. Moreover, it is possible to consider some possible explanations for particular outcomes, reaffirm the limitations of the results or identify options to expand on the research in future projects.

B. Types of Interdisciplinary Scholarship in International Law
Throughout the last decades, particular types of interdisciplinary scholarship have emerged in international legal research. This section provides a non-exhaustive overview of main strands and thinkers as a first gateway to glean inspiration for further engagement.

I. International Law and History
Interdisciplinary study of international law and history is perhaps the most common form of interdisciplinarity in the study of international law. This is because it’s a form of study that ties deeply with what is done through doctrinal legal research. Because doctrinal legal research necessarily requires placing the principles espoused by legal instruments or relevant international court decisions in the context in which they were made, in order to understand how they would apply in a new context, the study of international law lends itself towards historical enquiry. Prime examples of this type of scholarship can be found in the work of Arnulf Becker Lorca, James Crawford, Martti Koskenniemi, and Anne Orford. The purpose of international law and history interdisciplinary enquiry is not to determine the 'true' or 'original' meaning of a piece of international law, in line with the originalism doctrine espoused in US Constitutional Law. Rather, scholars engaging historical enquiries of international law often aim to disrupt accepted narratives that established alleged 'legal truths'. The historigraphical turn in international law has also put significant emphasis on researching the history of international law in non-Western regions and peripheries. This includes not only a renewed emphasis on questions of imperialism and colonialism, but also on regional perspectives, for instance on international law and the history of ideas in Latin America, Africa, and Russia, as well inter-civilizational perspectives.

II. International Law and Sociology
The primary goal of legal sociology (as both a discipline and method) is 'to provide insight into an understanding of the law through an empirical study of its practice.' This particular field of interdisciplinary study of international law finds its origins in the work of Pierre Brourdieu, Émile Durkheim, and Max Weber. In terms of empirical and theoretical studies into the practice of international law sociology is relatively small or niche when compared with International Law and International Relations (discussed in this section in conjunction with International Law and Political Science). This can be explained on methodological grounds. Sociology is a methods- and theory-based discipline which means that there is a battery of defined available methods,  new methods need to be sufficiently tested, justified, and articulated to be considered valid included and social theory is directly informed by empirical observation of the world. Political science and international relations, however, are subject matter based disciplines and thus have more scope as they adopt the different methodologies from other disciplines such as sociology. In the last two decades, research on sociological perspectives in international law has particularly focused on the practice of international lawyers as a legal profession, the evolution, proliferation, and authority of international courts, the practices of international adjudicators, as well as the emergence and structure of legal fields, for instance in international economic law as well as international criminal law.

III. International Law and Political Science
Political science perspectives on international law primarily focus on the 'development, operation, spread, and impact of international legal norms, agreements, and institutions.' They include theoretical and conceptual framework as well as political science methods, in particular qualitative and quantitative approaches. It expands the study of international law to investigate the role of political organization, government, and structures upon which international law relies. While its beginnings can be traced back to the early 20th century, the most prominent political science approach to international law is international relations. International relations theories usually highlight three facets of international law: power, international cooperation, and domestic politics. Yet, the relevance and understanding of those factors depends on the different strands of international relations theory. In general, one can distinguish between at least four dominant strands: realism (focusing on power), institutionalism (focusing on the role of institutions and regimes), liberalism (focusing on how domestic factors influence international affairs), and constructivism (focusing on the role of norms). Critical approaches such as Marxism, feminism, or post-structuralist strands are also applied. Historically, the disciplines of international law and international relations developed along related but usually not intersecting tracks. However, with the proliferation of international cooperation, the end of realist Cold War politics, and the rise of the US-backed liberal internationalist world order, a vocal community of IL-IR scholars emerged in the 1990s. They included, among others, Kenneth W. Abbott, Robert O. Keohane, and, most prominently, Anne-Marie Slaughter. Prominent IL-IR research strands focus on the compliance with international law, questions of legality and legitimacy, the emergence of norms as well as their contestation, and the proliferation of international courts.

IV. International Law and Literature
International Law and Literature as an interdisciplinary field of study follows the same paths and approaches as the Law and Literature movement more generally. The general goal of this type of interdisciplinary research is to use literature to advance understandings of international law in some way. While this is generally done through the pursuit of academic scholarship, it can also be done through the production of works of fiction. Classic examples of using works of fiction to discuss concepts of international law and justice are the work of China Miéville and The Reader by Bernhard Schlink. When engaging in academic approaches to International Law and Literature interdisciplinary work, authors tend to do one of three things with the literature aspect of this scholarship: 1) use works of fiction to explain and make accessible concepts of international law to non-experts or to illustrate a point of international law to fellow legal scholars; 2) use works of literature as conceptual data to explore societal responses to international law; or 3) use literature as a tool of jurisprudence in order to develop legal theory on particular issues. Often, the aim of international law and literature, as with all law and literature interdisciplinary studies, the tool of the literature is to help people understand international law in a new or more accessible way. The respective type of literature can also move with time, for instance historical-oriented works have focused on the role of world-making in early 20th century fiction while recent scholarship also discussed the depiction of international law in popular culture and modern fiction.

V. International Law and Economics
The economic analysis of international law has emerged in the 2000s, but builds on the more established domestic Law and Economics literature starting from the 1960 in US academia. Its primary aim is to apply economic theory, in particular rational choice approaches, to problems of international law. The core assumption of the economic theory is the rational actor model. Economic analysis of international law thus assumes that states are self-interested and make decisions among alternatives to maximize their gains. They act according to the rational choice model in the design of international agreements and the creation of international law. Methodologically, international law and economics scholarship often applies quantitative methods based on large datasets, as well as experiments. International law and economics sheds lights on two facets of international law: the importance of self-interest for state behavior and how this affects how states design and comply with international law. The economic approach to international law has been focused on the different modes of treaty making, the design of specific clauses such as treaty exits, international dispute settlement, and the legitimacy of customary international law. Economic analyses also investigated how particular rules of institutional design might foster compliance. A more recent but rapidly growing strand of interdisciplinary analysis on the economic analysis of international law is formed under the umbrella of Law and Political Economy (LPE). Research on international law from an LPE perspective investigates how international law creates wealth and inequality and upholds neoliberal hegemony but also how it might 'contribute to understanding and transforming centre–periphery patterns of dynamic inequality in global political economic life.'

VI. International Law and Psychology
International Law and Psychology has been developed in the 2010s and primarily adopts insights of behavioralism and cognitive psychology to international law. There are apparent overlaps between the emerging movement of behavioralist international law and the earlier economic analysis, not only amongst its main proponents but also its substantive questions and methods. Its main difference to economic analysis, however, concerns the rational choice paradigm. Psychological or behavioralist analyses do not assume perfect rationality, but rather want to empirical explore how the different actors in international law 'actually behave'. Behavioralism complements the economic approach by demonstrating that the action of individuals is often not determined by the maximum utility but influenced by several bias. To understand how those biases influence the behavior of individuals, behavioralist often rely on experiments. Yet, the application of experimental insights upon the behavior of states in international law is more challenging than to powerful individual decision-makers such as heads of state, diplomats, or judges. Behavioralist insights have been applied to a variety of international law issues, for instance, on treaty design, treaty interpretation, international trade disputes, bilateral investment treaties, legal theory, international humanitarian law or how to incentivize compliance via rewards.

VII. International Law and Anthropology
Anthropological analysis of international law have been primarily developed after the 1990s, however, earlier works on human rights in socio-cultural contexts can be identified. Anthropology and international law thus attempts to understand the social and cultural contexts of international law, often via ethnographical fieldwork in various local socio-cultural settings. Today, anthropological perspectives are in particular applied to account for the developments in three different international law spaces: the expansion of human rights discourse, the globalization of law, and international organizations. Anthropological perspectives aim at understanding how international law is produced and how it works by focusing on the individuals and communities which create and are affected by international law. Anthropology thus highlights three overlooked facets of international law: First, it allows an anti-formalist approach to international law, i.e. it can be applied to legal norms notwithstanding if they take the form of hard or soft law, written text or oral order. Secondly, it goes against the state centrism of international law by focusing on how individuals and communities as well as non-state actors, corporations, organizations etc create and interact with international law also along transnational lines. Thirdly, it situates the development and function of international law in specific local contexts, thus rejecting the universalist view and allowing for an integration with postcolonial or critical theory. Anthropological perspectives have been applied to understand how human rights have spread globally while also being clearly affected by local dynamics, how social movements engaged with struggles over international law, interactions between indigenous law and international law, the role of professionals such as lawyers and judges, as well as case studies of different legal institutions and regimes, for instance in international criminal justice.

VIII. International Law and Linguistics
International Law and Linguistics primarily focusses on the analysis of the language of international law and its discourses. Its main aim is to uncover the meaning of particular legal provisions by examining how it is being used or understood by different actors. This includes also the study of different languages as well as issues related to the translation of terms. Insights of the linguistic analysis of international law are thus used to understand the drafting, interpretation, and application of legal norms in treaties and jurisprudence. Discourse analysis and text linguistics examines the legal text and its surrounding context. Analysis of syntax focus on how different phrases are combined and connected to form part of text structures. Semantics and pragmatics aim to understand the meaning of terms for instance via their original meaning or by differentiating it from closely related provisions. Studies of historical linguistics and etymology investigate how particular terms have been historically developed and interpreted. Lexicography relies on the understanding of dictionaries. Corpus linguistics and computational linguistics aim at handling large amounts of texts to understand the use of certain words or collocations. Sociolinguistics emphasize how social factors such as class, gender, or age influence our language, while forensic linguistic studies how language is used as evidence in legal processes. In international law, linguistic insights have been applied to the interpretation of international legal norms, the use of references in the decisions of international courts and tribunals as well as self-citation practices in general. Another important strand of research critically reflects on the language(s) in which international law claims universality and challenges the English-centrism of international law.

IX. International Law and Other Approaches
It is essential to point out that there are also a multitude of other types of interdisciplinary approaches to international law and legal research. Those have been particularly popular in new fields of legal research, for instance in the area of climate research, animal studies, or technology and data science. In general, for interactions with philosophy, you can find inspiration in the chapter on positivism, while critical approaches explained in this book such as TWAIL, Marxism, and Feminism & Queer Theory, also suit themselves to interdisciplinary research agendas.

C. Methods of Interdisciplinary International Law Scholarships
While traditional legal scholarship mainly advocates for the doctrinal method, the toolbox of interdisciplinary approaches offers a much wider variety of methods to study international law. In the following, we propose the four main methodological "baskets": comparative method, archival research, qualitative method, and quantitative method. Those four methodological baskets are not mutually exclusive but can be combined and also complement each other, as well as classical doctrinal approaches.

I. Comparative Method
Comparison has long been a staple in comparative legal research, also in international law. Comparison can be generally understood as a method which aims at contrasting two or more research units to identify parallels and differences. Interdisciplinary research puts significant emphasis on justifying the design of a comparison. After identifying the research question, the respective scholar generally justifies the comparability of the respective research units. The respective research units are called a case. The notion of case here is broader than its general use in international law (see Case Analysis). A 'case' in interdisciplinary scholarship can be a judgment, an institution, a court, or even a legal system as such. For instance, comparative international law has focused on understanding how and why national legal cultures differ in their engagement with international law. In particular when there is only a small number of research units, interdisciplinary scholars aim to provide a thick description of the respective institutions or legal regimes, highlighting similarities and differences, and, if possible, how the researcher aims to account for potential divergences.

In the social sciences, most comparisons adopt an inductive method, originally developed by John Stuart Mill in his 1843 book 'A System of Logic', to illustrate their causal research hypothesis. This means that they account for an outcome (the dependent variable) as well as possible explanatory factors (the independent variable(s)). This is also called the 'most different' or 'most similar' cases design. In the former, the two or more cases are different in every relevant characteristic except for the outcome and the explanatory factor, in the latter everything between the two cases is similar except for the explanation and the outcome. Charles Tilly further distinguishes four types of comparative analysis, namely individualizing, universalizing, variation-finding, and encompassing.

II. Archival Research
Archival research is generally associated with forms of historical enquiry; however, given the overlap of historical enquiry to other forms of interdisciplinary research, references to archival material will often crop up in various types of interdisciplinary research and even doctrinal research. Primarily, the purpose of archival research is a search 'for materials that might flesh out the stories and histories of modern rhetoric and composition we were presenting.' Archives can be either physically located or online, but this primary purpose does not change with the venue of the archives. Because the goal of archival work is defined primary sources that flesh out, or improve our understanding of historical narrative, the biggest question related to archival research is the decision about what to include (and perhaps more importantly what to exclude) from a piece of research. Because this is an issue for all forms of empirical research this will be dealt with in more detail below; however, a general guide is that for something to be excluded there needs to be a defensible basis for that decision – if something is relevant to the topic, credible in terms of its origins, as within an acceptable tolerance of verifiability, it likely should be included in the work.

III. Qualitative Research Methods
While quantitative research is an empirical research method grounded in numerically measurable data, qualitative research focuses on an often hermeneutical interpretation of subjective texts. These subjective texts could range from ethnographic observation, interviews (structured, semi-structured, or unstructured), free text answers in surveys, oral histories, historical transcripts (such as official meetings, or speeches), discourse analysis, or participant observations. Those different forms of texts are either created by the researcher, for instance by conducting interviews or surveys among the interested research units themselves, or assembled from existing texts, for instance records of debates of newspapers. The respective number of texts depends on the research question, that means a more specific question requires more specific information. In general, the gathered texts should at least constitute a representative sample to be able to guarantee validity, reliability, and objectivity of the resulting analysis. After a significant amount of text data is gathered, the texts will be analyzed in a structured and previously identified method to identify particular patterns, arguments, or frames in the respective texts. Qualitative research methods enable a researcher to understand why a phenomenon is occurring. This can be contrasted with quantitative based investigations that are more focused on establishing what is occurring. The value of qualitative studies as a supplement to doctrinal analysis is how it permits an understanding of why certain elements of doctrinal law have been developed, or how they play out when implemented on the ground.

IV. Quantitative Research Methods
Quantitative research methods have been an essential element of the so-called empirical turn in international legal scholarship, which combines legal methodology with tools and techniques from the social sciences. Quantitative methods are based on numerical data, which generally means large numbers of texts or codes in international law, for instance from legislation, treaties or jurisprudence. The data is then analyzed to identify the conditions under which international law is formed and has effects. Hence, a major challenge of quantitative methods concerns the collection of data, either manually or through computational methods. For beginners, it is thus advisable to make use of existing databases, either from international courts, international organizations, or academic research projects. Quantitative research methods can be generally differentiated in four types: First, descriptive research, which aims at identifying patterns and structures in the data without necessarily having a hypothesis before data collection. Secondly, correlation-aimed research, which wants to determine the extent of a relationship between two or more variables using statistical data. Thirdly, causality-focused research that attempts to establish cause-effect relationships among the variables in the data. Fourthly, experimental research investigates the cause-effect relationship in a study situation in which an effort is made to control for all other variables except one. Those four types are not mutually exclusive but can be combined, however, they come with specific requirements for data collection, for instance most quantitative studies require at least a medium-N or large-N (N means the number of research units) sample size. Hence, in international law, quantitative methods have so far been applied to the jurisprudence of international courts, as well as legal regimes which feature a large number of legal instruments such as international human rights or investment law.

D. Pitfalls and Challenges
Interdisciplinary research is exciting and illuminating, it demonstrates that a researcher can look beyond the traditional legal methods and, in the best case, find answers that help to understand, analyze, and, in certain instances, improve the functioning of international law. However, interdisciplinary research comes also with unexpected challenges. In the following section, we provide practical recommendations to overcome the most common pitfalls.

I. Finding the Right Method for Your Research Question
Doctrinal law scholars are notoriously bad at articulating their methodology, often stating “I just read some stuff and then I analyse it.” In this dominantly doctrinal-positivist academic culture, interdisciplinary research in law is referred to under the broad umbrella of “socio-legal” research. One of the biggest hurdles faced by this broad and inclusive categorisation research is that it doesn’t provide clarity on what it is the interdisciplinary research is doing and which particular method should be applied. The range of methods that are available to interdisciplinary scholars are extensive and cannot be covered here in full. Interdisciplinary methods constitute a broad and diverse toolbox that can be applied to positivist as well as critical understandings of international law. The key to understanding what method is most appropriate for the question you are trying to address in your research is familiarizing yourself with the other discipline you are working with and the methods that are employed within that space. No method is inherently correct or incorrect for a particular research question – the key lies in how you justify both the theory and method you are bringing to your question and articulating why that method is being used and not a different one. That said, one should be wary of scholarship that defines itself by the method rather than the research question.

II. Selection Bias
Selection bias is when, deliberately or accidentally, you use a dataset that is incomplete. It renders your argument void, because the data you used was not reliable or meaningful. Data-driven research must include all data, even data that may undercut the primary thesis, because otherwise it is incomplete and therefore is without value. This often goes against many legal researchers' instincts, because legal training still largely focuses on advocacy. In advocacy, focusing on the evidence that support your argument is fully appropriate and necessary. However, in data-driven research, it is critical to show that your data includes and accounts for cases that diverge from the pattern you are trying to demonstrate. This also reflects a wider shift needed when moving from a legal mindset to a data mindset: lawyers think in terms of absolute rules; data-driven research seeks to demonstrate tendencies.

III. Understanding External Data
Particularly in interdisciplinary studies in international law, a researcher will use or rely upon an external (usually publicly accessible) data source. Broadly speaking, the data source is considered external if the data was not gathered by the researchers themselves. When using external data sources, it is important to establish the accuracy and integrity of the data, while also acknowledging (or highlighting) any weaknesses that may exist with the dataset. It is also important to justify why the use of an external dataset in this instance is the most appropriate approach to addressing the question at hand. An example of how to manage these questions can be found in the second part of Chapter 2 of Paige’s study on UN Security Council decision making in relation to threat to the peace.

IV. Personal Constraints (Time, Skills, Resources)
When setting out to do an interdisciplinary, data driven study in international law one of the first things to consider at the planning stage of the project is what personal constraints will exist and how that will impact your ability to produce a complete study. The most significant factor when considering personal constraints is time. In a 2013 seminar on doing interdisciplinary research, renowned sociologist of law Angela Melville noted that the best approach to assessing time constraints in empirical research was to generate a realistic timeline and then triple it. Her justification for this was that no planning ever accounts for all the unexpected hurdles that crop up when doing empirical work. The other main constraint to consider is access: Will you have access to the dataset? Will you have access to sufficient interview participants to have a complete dataset? Will you have access to enough resources to continue data gathering until you have reached data saturation? Will you physically be able to get access to the relevant participants themselves? All of these questions need to be considered in the research design phase, and all of the complications that arise around these issues are why any empirical work will take three times longer than you expect.

V. Do’s and Don’ts of Publishing Interdisciplinary Scholarship
There are a significant number of dos and don’ts when it comes to doing data driven interdisciplinary research in international law. In summary, you should be open about the biases you bring to the project and how they have impacted your analysis. You do this for the sake of transparency, and to allow the reader to read your analysis in light of your biases. You should not allow your biases to shape what data gets included or excluded from your study (see the above section on selection bias). You should also not allow your biases to dictate how you read the data – they may always inform your analysis but they should not drive your analysis; good researchers are open to their hypothesis being proven wrong by the data. You should make clear why the method you are using is the most appropriate one to address the research question you have in front of you. You should not shape your research question to fit it in to a preferred methodology – research methodologies are simply tools in a researcher's toolbox and you should choose the right one for the project, not choose the project for the tool. Do acknowledge any weaknesses that exist within your dataset, and factor that into your analysis of the dataset. Do not try and explain away or mitigate those weaknesses, rather you should highlight how they demonstrate and need more data gathering and studying on an issue.

Further Readings

 * Eliav Lieblich, "How to Do Research in International Law? A Basic Guide for Beginners", 62 Harvard Journal of International Law (2021) 42-67, https://harvardilj.org/2021/01/how-to-do-research-in-international-law-a-basic-guide-for-beginners/
 * Shai Dothan, "A Guide to Quantitative Legal Research", iCourts Working Paper Series, No. 221 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3719836
 * Sundhya Pahuja, "Practical Methodology: Writing about How We Do Research" https://www.academia.edu/41669706/Practical_Methodology_Writing_about_How_We_Do_Research
 * Siddharth Peter de Souza and Lisa Hahn, "The Socio-Legal Lab: An Experiential Approach to Research on Law in Action" (free interactive visual workbook) https://openpresstiu.pubpub.org/socio-legal-lab

Conclusion

 * Learning: Interdisciplinary research in international law is a rewarding pursuit, but to be done well it requires a strong grounding in international law and the other discipline which you are using for your research. The learning process is never finished.
 * Applying: For legal scholars, interdisciplinary perspectives to international law often require to learn not only about new methods and conceptual tools but also to adopt different epistemologies. This means, interdisciplinary research changes how one must structure the research, writing, and publication process.
 * Experimenting: International legal scholarship has adopted a broad variety of interdisciplinary research, some dominant strands have been summarized in this chapter, which provide a multitude of entry points to look at international law from an interdisciplinary perspective. They are not mutually exclusive. On the contrary, this variety is an open invitation to young scholars to experiment with interdisciplinary research, to try out new and unfamiliar research questions, methods, and approaches in order to broaden our understanding of international law. There is something for everyone!


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Public International Law/Approaches/Positivism

Author: Başak Etkin & Alex Green Required knowledge: Link

Public International Law/History of International Law/Founding Myths

Public International Law/History of International Law/Nineteenth Century

Public International Law/Nature and Purpose of International Law

Public International Law/Approaches "Learning objectives: Understanding analytical and normative positivism and their differences from international legal positivism, identifying the major critiques of positivism."

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A. Positivism as Method and Ideology
Legal positivism is a theory about law determination. Law determination concerns what it means for the content of the law to be 'fixed' or 'made what it is', (e.g. the threat of use of force is unlawful because art. 2.4 of the UN Charter forbids it). Legal positivism asserts that legal facts are determined by social facts, and all law is posited/positive. In this framework, law’s existence and content are determined by the social facts alone (i.e. value-neutral descriptions of social behaviour, e.g. the fact that people take their hats off when entering a church) recognized by the officials of a legal system, independently of its moral (or other) merits (the ‘social thesis’). Legal positivism first emerged as a reaction to natural law theories in the 18th century. Its roots are in the works of Jeremy Bentham  (1748–1832), who sought to criticise and reform natural law theories. Analytical legal positivism is and has been, if not the most, one of the more influential theories on modern legal theory and on international law, though some use 'positivism' to describe with the 'mainstream' doctrinal approach to international law.

I. Analytical Positivism
As their main point of convergence, all legal positivists agree upon the separability thesis (i.e. that law and morality are not necessarily linked) as it is what defines them, despite other differences. It is thanks to the separation of law and morality imposed by positivism that criticising the content of law is a possibility. However, to what degree law and morality are separated has been a point of contention between inclusive (soft) and exclusive (hard) positivists. Inclusive positivists allow for moral elements (e.g. widespread moral beliefs in a society) to be included directly or indirectly in the rule of recognition. Exclusive legal positivists, on the other hand, reject all moral element in the rule of recognition as they defend that this would make the problem of uncertainty remain unsolved. Both sides of the argument agree that when the rule of recognition does not give a clear answer to the question ‘what is the law?’, courts create law.

Analytical positivism was first popularised by John Austin  (1790-1859), who developed the command theory, the concept that law consists of ‘orders backed by threats’. Here, the ‘order’ represents the command of the sovereign; this will is habitually obeyed and disobedience is sanctioned by a ‘threat’.

H.L.A. Hart (1907-1992), an English legal philosopher, inclusive legal positivist and a prominent critic of Austin, offered a comprehensive critique of the command theory in his 1961 influential book, ‘The Concept of Law’, and refined legal positivism further. Hart’s rebuttal demonstrated three main issues with the command theory: that it did not include customary law,  that not all laws commanded or prohibited specific actions,  and the impossibility of identifying a sovereign with unlimited law-making powers. Hart proposed an alternative framework, summarised as ‘a union of primary and secondary rules’. Primary rules establish obligations and confer powers to guide human conduct (e.g. it is forbidden to cross the street when the red light is on). In some communities, described by Hart as ‘primitive’, law consists solely of these primary rules, but primary rules alone do not make a legal system, which also requires secondary rules, which serve as organisational meta-rules, or rules that govern the primary rules. According to Hart, these secondary rules address three main shortcomings: (1) the uncertainty around which rules are valid in this system, (2) the static character of the rules, and (3) the inefficiency of the rules. These problems are solved by, respectively, (1) the rule of recognition, providing the criteria of legal validity and answering the question 'what is the law?', (2) the rule of change establishing the procedures for introducing new primary rules, modifying existing ones, and abolishing old ones, answering the question 'how does the law change?', and (3) the rule of adjudication determining those with the authority to adjudicate and defining the procedure to follow, answering the question 'how to implement the law?'. All secondary rules can be classified under one of these three categories.

Hart is often presented in opposition to his continental counterpart Hans Kelsen (1881-1973), an Austrian jurist, who was more influential in civil law systems. Kelsen was closer to Austin’s look than Hart, as in his view laws were norms addressed to officials and not at subjects – i.e. norms to be applied by courts if an offence was committed. Another point of divergence between Hart and Kelsen was legal validity; for Hart legal validity depended on social recognition but for Kelsen legal validity was a normative ('ought' not 'is') question. He argued that legal rules are deemed valid only when formally grounded in higher norms, following the prescribed procedural frameworks. This stepped construction (Stufenbau) culminates in the concept of the Grundnorm (basic norm), as Kelsen presented in ‘Reine Rechtslehre’. The Grundnorm is the presupposed legal proposition at the foundation of any legal system, a simple fiction to uphold validity.

Another prominent figure in legal positivism is the Israeli legal philosopher Joseph Raz (1939-2022). In his 1979 book ‘The Authority of Law: Essays on Law and Morality’, Raz developed a more modern take on the social thesis and the sources thesis (i.e., that law is identified by reference to its sources), asserting that law’s existence and content cannot rely on moral arguments, but can only be derived from social sources. As an exclusive positivist, Raz further explored the normative aspects of legal systems in ‘Practical Reasons and Norms’  and makes the case that legal rules offer a practical justification for carrying out an obligation while excluding other justifications.

Most recently, the American legal philosopher Scott Shapiro’s book ‘Legality’ offered a new and alternative approach to legal positivism. Shapiro’s planning theory of law advances the idea that legal systems are compulsory planning organizations, and his moral aim thesis suggests that law provides content-independent normative guidance to bypass moral disagreements.

II. International Legal Positivism and Normative Positivism
Normative positivism, perhaps more prevalent in international law than analytical positivism, defends the idea that positivism is not only true, but also valuable. Therefore analytical positivism, which does the intellectual heavy lifting, has to be true for normative positivism to even be considered. It should not be confused with normative approaches, such as Kelsen’s, as seen above. Jeremy Waldron argues that this take is more faithful to positivism’s origins, as Bentham’s intention was not to conceptually separate law and morality but to coordinate conflict resolution between the society’s laws and personal judgments about morality. Lassa Oppenheim (1858-1919) also defended this point of view, suggesting that positivism was the best suited concept to advance moral and political values, as demonstrated by his advocacy of international society. Also adopted by Prosper Weil, this has been a particularly influential approach in international law.

Some aspects of analytical positivism could seem incompatible with international law, such as Austin’s command theory that could cast a doubt on its validity of, given the lack of an almighty sovereign in the international arena. Another such potential issue is around pluralism and Kelsen’s account of legal validity based on normativity that favours monism (i.e. that the different branches of international law and all domestic legal systems taken together make a unified regime). International law is a highly fragmented domain with numerous regional and international regimes, and it is often difficult to establish which are the hierarchically superior norms in a given situation. However, modern legal positivism has evolved quite significantly and has developed sophisticated answers to questions that arise within international law.

International legal positivism (i.e. positivism as understood and upheld by international lawyers), much like its analytical counterpart explained above, is far from being a monolith, and in some ways it diverges from legal positivism. Most notably, international legal positivism is, partially because of the weight given to state will in international law, more often confused with consensualism or voluntarism. However, treaties are the only consent-based source of international law, in the strict and explicit understanding of consent. Therefore, the rule of recognition of international law (which, despite some confusion, is not Article 38 of the Statute of the International Court of Justice) does not include consent and the sources thesis applied to international law does not paint a consensualist picture. While neo-voluntarists survive, many contemporary international legal positivists separate the objective international legal order and the subjective will of states.

International law’s compatibility with positivism is also called into question regarding jus cogens. These peremptory norms are ‘accepted and recognized […] as a norm from which no derogation is permitted’ according to the 1969 Vienna Convention on the Law of Treaties, thus the criteria does not breach the separability thesis, but one can easily identify the moral undertone once a series of examples are given: prohibitions of genocide, torture and slavery. Some exclusive legal positivists believe that acknowledging the existence of jus cogens undermines the separability thesis, but this problem can be solved by saying that the moral belief or judgment shared by states is a social fact, and that is what makes jus cogens, not its inherent moral value.

B. Critiques of Positivism
Legal positivism, as we have seen, is the view that the content of international legal norms is made what it is (that is, determined or ‘fixed’) by social facts alone. These social facts typically relate to the 'pedigree' of those norms: their historical roots in particular social sources, such as treaty texts or expressions of opinio juris. The inverse view, held by ‘non-positivists’, is that international legal norms are necessarily determined not only by social facts but also by facts about political morality, which include moral values, genuine normative principles, and practical reasons that govern how individuals should 'live together', organise themselves, and behave at the collective levels of national and international society.

What, then, distinguishes non-positivists from normative positivists? Non-positivists, whilst agreeing that facts about political morality partly determine the content of the law, disagree that moral reasoning should be excluded from the identification of international legal norms at a more concrete level. Normative positivists, as noted above, argue that international law should be identified with recourse to social facts alone. According to their view, excluding moral considerations from legal reasoning tends to produce international stability, insofar as it avoids the proliferation of inter-state disputes. For the non-positivist, however, the exclusion of moral considerations from legal reasoning is wrongheaded, either because they believe normative positivists to be mistaken about the allegedly destabilising effects of moral reasoning, or because they believe identifying international legal norms to be impossible on the basis of social facts alone. In what follows, we examine a few reasons why one might reject legal positivism wholesale, as it were, and adopt a non-positivist approach instead.

I. Insufficient Consensus
As we have seen, central to the positivism of Hart, Raz, and others, is the notion that legal validity turns on the existence of one or more rules of recognition. This claim can also be put in the following terms. Within any given legal order, the norms of that order are ultimately determined exclusively in relation to the convergent behaviours and attitudes of law applying officials. The social facts that such officials treat as being sources of law become sources for that reason. Within international law, the relevant legal officials include state representatives and international adjudicative bodies, to name but two examples. One possible reason for rejecting this kind of positivism at the international level is that international law lacks sufficient convergence in official attitude or behaviour, meaning that no rule of recognition can be said to exist within that legal order. So, for instance, although it might be true that the text of a particular bilateral investment treaty is binding on its State Parties because of their consent to be bound by that text, it nonetheless remains the case that the binding force of pacta sunt servanda requires explaining and there is little to no consensus at the international level as to the precise status of that principle (for example, whether it is a general principle of law or custom).

This view about the absence of a rule of recognition, interestingly enough, is close to the view that Hart himself professed about international law, even if it has become unpopular amongst positivist international lawyers. Recent scholarship has renewed attacks against positivism within international law along these lines. Importantly, such criticisms raise issues not just for analytical positivism but also for normative varieties. This is so because if international law possesses no rules of recognition (or some set of norms fulfilling the same function and determined both ultimately and exclusively by social facts) then legal reasoning in a fully positivist mode is impossible, no matter how advantageous it might be in principle.

II. ‘Rational’ Determination and Social Facts
Another doubt one may have about rules of recognition concerns the mechanics, as it were, of how such rules supposedly 'fix' the content of international law. Even if sufficiently the attitudes and behaviours of international legal officials are sufficiently convergent for one or more rules of recognition to exist, it is unclear why these attitudes and behaviours alone should be treated as determining the content of international law. Why, in other words, should rules of recognition function in the way that positivists claim that they do? According to a broadly Hartian view of legal validity, the cumulative attitudes and behaviours of legal officials fix to the content of international law by definition. However, given what many non-positivists consider to be the plausible assumption that there must be a rational explanation for why legal norms exist in the way and with the content that they do, it is not obvious why official attitudes and behaviour should be treated this way. For example, if we are asked to explain why pacta sunt servanda holds within international relations, it seems highly unsatisfactory to answer, 'because the relevant people believe that it does'. Positivism, understood in this way, fails to provide a sufficiently rational explanation for the existence of international law. This concern arises because the attitudes and practices of legal officials are social facts, with no necessary normative implications, and therefore cannot provide reasons why international law should be viewed one way, rather than another. Importantly, this critique is inapplicable to normative positivism, which holds that facts about political morality can explain why ultimate and exclusive recourse to a particular set of social facts should be observed. Nonetheless, concerns about the ‘rationality’ of positivism remain applicable to its purely analytical variants, notwithstanding this fact.

III. The ‘Positive’ Non-Positivist Case
Finally, one might wish to appeal directly to political morality within legal reasoning for more positive reasons. In the first place, on the assumption that either of the first two critiques presented above are true, then reliance upon more than just social facts alone is inevitable when identifying international law. This being so, there is no point, or so the argument might go, in pretending otherwise. It is preferable to be transparent about one’s reliance upon political morality, instead of obscuring it behind a positivist veneer. Alternatively, one might believe that direct recourse to moral considerations within legal reasoning would be conducive to the promotion of global justice, if for no other reason than it focuses attention on the most morally salient aspects of a given international dispute. Considerations of this sort have motivated a range of contemporary non-positivist scholarship, both in relation to international law in general, and as regards more discrete regimes, such as the law of statehood, international trade law, or the law of human rights.

Further Readings

 * Etkin, Başak (2022). "Legal Positivism". Elgar Encyclopedia of Human Rights. Edward Elgar Publishing: 412–417.
 * Hart, HLA (1994). The Concept of Law (2nd ed.). OUP.
 * Kelsen, Hans (1945). General Theory of Law and State. Translated by Wedberg, A. Harvard University Press.
 * Kelsen, Hans (1967). Pure Theory of Law. Translated by Knight, M (2nd ed.). University of California Press.
 * Raz, Joseph (2009). The Authority of Law: Essays on Law and Morality (2nd ed.). OUP.
 * d’Aspremont, Jean (2017). "International Legal Positivism". Encyclopedia of the Philosophy of Law and Social Philosophy.
 * Kammerhofer, Jörg (2016). Orford, Anne; Hoffmann, Florian (eds.). "International Legal Positivism". The Oxford Handbook of the Theory of International Law. OUP: 407–426.
 * Dire Tladi (ed), Peremptory Norms of General International Law (Jus Cogens) Disquisitions and Disputations (Brill Nijhoff 2021)
 * Nahuel Maisley (2021) Better to see international law this other way: the case against international normative positivism, Jurisprudence, 12:2, 151-174.
 * Dworkin, Ronald (1986). Law’s Empire. Hart.
 * Greenberg, Mark (2004). How Facts Make Law, 10 Legal Theory 157.

Further Resources

 * Borderline Jurisprudence, Episode 3: Adil Haque on International Law and Morality (30 April 2021).
 * Borderline Jurisprudence, Special episode "Joseph Raz and International Law: An Unfinished Journey" (25 August 2022).
 * Borderline Jurisprudence, Episode 15: Başak Çalı on Authority, Interpretivism, and Human Rights (4 November 2022).
 * Borderline Jurisprudence, Episode 19: Alex Green on Natural Law, Statehood and International Law (7 April 2023).

Conclusion

 * Legal positivism is a theory about law determination, asserting that legal facts are determined by social facts, and all law is posited/positive. Law’s existence and content are determined by the social facts alone recognized by the officials of a legal system, independently of its moral (or other) merits (the ‘social thesis’). As their main point of convergence, all analytical legal positivists agree upon the separability thesis (i.e. that law and morality are not necessarily linked), and that law is identified by reference to its sources (the 'sources thesis').
 * Normative positivism defends the idea that positivism is not only true but also valuable. This has been a particularly influential approach in positivism as understood and upheld by international lawyers, international legal positivism. Some aspects of analytical positivism could seem incompatible with international law, but these issues no longer arise in modern legal positivism or are due to a confusion between positivism and other concepts (such as consensualism).
 * The inverse view, held by ‘non-positivists’, is that international legal norms are necessarily determined not only by social facts but also by facts about political morality, which include moral values, genuine normative principles, and practical reasons that govern how individuals should 'live together', organise themselves, and behave at the collective levels of national and international society. Non-positivists, whilst agreeing with normative positivists that facts about political morality partly determine the content of the law, disagree that moral reasoning should be excluded from the identification of international legal norms at a more concrete level.
 * Three issues illustrate non-positivism in international law. (1) There is insufficient consensus about a or the rule of recognition in international law. (2) Even if it existed, it is unclear how such rules supposedly 'fix' the content of international law, since many non-positivists consider to be the plausible assumption that there must be a rational explanation for why legal norms exist in the way and with the content that they do. (3) It is preferable to be transparent about one’s reliance upon political morality, instead of obscuring it behind a positivist veneeer, and one might believe that direct recourse to moral considerations within legal reasoning would be conducive to the promotion of global justice.

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text:
Public International Law/Approaches/TWAIL

Authors: Shubhangi Agarwalla, Sué González Hauck, Thamil Venthan Ananthavinayagan "Required knowledge: Link" "Learning objectives: Understanding XY."

I. Introduction to the Concepts of the Third World and the Global South
The term ‘Third World’ originates from the time of the bipolar Cold War opposition between the First World, comprised of the member states of the North Atlantic Treaty Organization (NATO), and the Second World, organized in the Warsaw Pact, in the second half of the 20th century. The Third World rallied not only around the idea of non-alignment but also around a shared history of being subjected to European colonialism. As a politically institutionalised project, the Third World took shape in several conferences, of which the Afro-Asian meetings in Bandung in 1955 and in Cairo in 1961, the inaugural conference of the Non-Aligned Movement in Belgrade in 1961, and the Tricontinental Conference in Havana in 1966 stand out. Today, the term ‘Third World’ has been partially replaced by the term ‘Global South’. This latter term bears less direct links to the Cold War bloc opposition and points instead at a critique of the kind of neoliberal globalization that gained traction in the 1990s after the collapse of the Soviet Union.

II. Engaging with the Colonial Legacies of International Law
The main aspect that unites TWAIL scholarship despite the heterogeneity of the movement is the shared endeavour of grappling with international law's colonial legacies. Several influential TWAIL authors, including Antony Anghie, Sundhya Pahuja, and, most recently, Ntina Tzouvala have examined the structure of international legal arguments through history to show how colonial and racist thought animates international law. Anghie argues that it is the 'dynamic of difference' which generates the concepts and dichotomies that are fundamental to the formation of international law. With the term 'dynamic of difference', Anghie refers to the conceptual tools positivist international lawyers deployed to, first, postulate a gap between the civilised European and the uncivilised non-European world and, second, to construct and employ techniques to bridge this gap, i.e. to civilise the uncivilised, to engage in the civilising mission. The civilising mission, the idea that non-European peoples are savages, barbaric, backward, violent and that European peoples thus must educate, convert, redeem, develop, pacify – in short, cilivise – them has been used to justify continues intervention by European countries and other countries of the Global North – the West – in Third World countries.

Pahuja emphasises that international law constructs its own subjects and objects. It does not merely rely on a number of foundational notions, such as the state, the international, or the law. Nor does it merely apply to objects external to it, like the economy. Rather, through definitions that make categorial cuts between what is inside and outside certain categories, international law produces these categories even though it is deemed to be founded on them. As the production of international law's foundational concepts has occurred through the colonial encounter and through the particular contexts of several imperial and post-imperial projects, the shape these concepts gained is determined by these very particular contexts. Simultaneously, however, international law posits the legal categories it produces as universally true. It is the interplay between international law's self-formation in (post)colonial contexts and international law's universalising gestures that produce what Pahuja calls international law's 'critical instability'. 'The instability is ‘critical’ in both senses of the word, for it is simultaneously a threat to the reach and existence of international legality and an essential, generative dimension of it'. Pahuja's work has focused on how the potential offered by this critical instability, a potential of pointing out international law's shortcomings in terms of its own aspirations towards universal justice and thus using international law in emancipatory ways, has been repeatedly contained by a ruling rationality. "A key dimension of that rationality is the position of development and economic growth vis-à-vis international law. The combination of the promise offered by international law’s critical instability and the subsumption by the ruling rationality of efforts to take up that promise explains international law’s dual quality, or its puzzling tendency to exhibit both imperial and counter-imperial dimensions."Ntina Tzouvala focuses on the standard of civilisation as a set of argumentative patterns, which oscillate between two modes of distinguishing between 'the West and the rest'. The first is what she calls the 'logic of biology'. It is based on biological racism and the isurmountable barriers it erects against colonised and formerly colonised peoples gaining equal rights and obligations under international law. The second, the 'logic of improvement' in Tzouvala's terminology, replaces definitive exclusion with conditional inclusion, offering peoples of the 'Third World' a prospect for gaining equal rights and obligations. The condition for gaining such equal recognition, as Tzouvala argues, has been capitalist transformation.

III. History of TWAIL as a Movement
TWAIL as a rubric for an academic movement emerged in Harvard in 1996. To acknowledge the intellectual tradition within which scholars who started calling themselves TWAIL scholars in the 1990s were working, Antony Anghie and B.S. Chimni coined the term ‘TWAIL I’ and ‘TWAIL II’. With the term TWAIL I, Anghie and Chimni referred to scholars like Georges Abi-Saab, F. Garcia-Amador, R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias, the first generation of international law scholars from newly independent states, who grappled with the exclusions that a Eurocentric and colonial international law had produced. TWAIL II scholars started building on the legacy of the aforementioned scholars while further developing the analytical tools necessary to engage with international law from a Third World perspective. This meant taking a critical stance towards some of the main tenets of TWAIL I thought. TWAIL II scholars shifted their attention and normative commitment from the post-colonial state to the people living in the Third World, which allowed for analyses that could take into account the violence within post-colonial states as well as conflicts generated by class, race, and gender. Additionally, the shift from TWAIL I to TWAIL II meant a shift in general attitudes regarding the role of colonialism in international law. While TWAIL I scholars had treated colonialism as an aberration, which could be broken with and remedied by using and slightly modifying the techniques of the existing international legal order, TWAIL II scholars turned to the history and theory of international law to show how colonialism has been a central and defining feature of the formation of international law.

I. TWAIL and the Turn to History
Methodologically, one of the main characteristics of TWAIL scholarship is its focus on history. 'History matters', as Luis Eslava reaffirms as the first of five TWAIL coordinates, which characterise the movement. The particular appreciation of history stems from TWAIL's aim of transforming international law. Understanding the past is a necessary prerequisite for transforming the present and the future. TWAIL histories have pointed out the Eurocentric nature of existing histories of international law. They have focused on the co-constitution of international law and imperialism as well as on histories of Third World resistance, of alternative projects and movements.

III. TWAIL and Critical Scholarship on Race and Racism
Critical scholarship on race and racism, which includes but is not limited to Critical Race Theory (CRT), is mainly concerned with the social construction of races and racial hierarchies and with how these hierarchies have been used to justify exclusion, exploitation, and domination.

Further Readings

 * Source I
 * Source II

Conclusion

 * Summary I
 * Summary II