A World of Struggle at Harvard Law

(Author’s Note: The following is a sprawling takedown of David Kennedy’s A World of Struggle, a book that clearly got my goat.)

Pankaj Mishra is the author of several fascinating books, including From the Ruins of Empire: The Intellectuals Who Remade Asia and his new one Age of Anger, which I am struggling to get around to reviewing, if only Donald Trump would stop fucking up so much. Recently—well, less than a year ago—Mishra had this to say about Harvard Law Professor David Kennedy’s new book, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy: “Describes our world more accurately than any book I have read this year. Kennedy offers no clear prescriptions. Yet he clarifies that understanding how this world of injustice and inequality came about is the essential first step toward a democratic alternative.”

Naturally, I tracked Dave’s book down, but after downloading sample pages from Amazon and working my way through Dave’s white shoe¹ prose, I’m afraid I began to gag, and more than a little. Dave, I felt, needed to be, well, cut down to size. But reading an entire book of Dave’s astringent ironies, which all rang just a little too self-congratulatory for my taste, struck me as going above and beyond the call of duty. I bought his book but decided to ease my burden by reading an extensive review of “Struggle” by Samuel Moyn, professor of history and law at Harvard, “Knowledge and Politics in International Law”, published in (of course) the Harvard Law Review, to use as a sort of study guide, allowing me to skip, rather than plow, through Dave’s book, allowing me to come up with some astringent ironies of my own without too much work. But I found that I disliked Dr. Kennedy’s book so much that I couldn’t, in good conscience, express my dislike unless I was sure I knew what I was talking about, so I stopped skipping and started plowing, and the more I plowed the more I decided that I didn’t much agree with either Harvardian, to the extent that I ended up discarding my Cicero and completing the journey alone.

But Dr. Moyn’s review is still “interesting” (interesting and depressing) in that it demonstrates how seriously Dr. Kennedy’s dreary “ideas” are taken in the highest circles (for what could be higher than Harvard?): “In his new book on how the world is ruled today through expert knowledge, Professor David Kennedy enters this continuing discussion [initiated by Francis Bacon, Professor Moyn tells us, and pursued by the likes of Hobbes, Marx, Nietzsche, French sociologist Pierre Bourdieu², and, most recently, Foucault] in brilliant, pathbreaking, and trademark fashion. Slyly presenting himself as a disinterested observer of global governance, Kennedy eclectically draws on twentieth-century perspectives about knowledge, achieving a synthesis all his own. Presented without theoretical encumbrance or jargon, A World of Struggle is a straightforward but sophisticated account that capitalizes on prior insight to achieve a unique and powerful vantage point. The superlative book wins its distinction not only because it constructs a novel theory but also because it applies that theory to how the globe as a whole is ruled — something no one in the canon of social theory has really done.”

I disagree entirely, but why not let poor Professor Kennedy speak for himself? Here’s a sample:

“In a world where so much is open to debate and conflict is all around us, how can it be so difficult to contest and change the things that matter? Things like the distribution of wealth or honor and shame. Or the pattern of environmental destruction. Or the ubiquity of kleptocratic rule. The answer is not a mysterious constitutional settlement, the obscure workings of a disaggregated public hand or global value consensus. The answer lies in the strange alchemy of expertise and struggle through which our world is made and remade. The alchemy is strange because struggle and conflict have seemed inimical to expertise: matters of political difference and clashing interests that experts aim to calm, mediate, and replace by sweet reason. The world experts know is more constituted order than distributional struggle, their expertise a way of knowing what to do rather than struggling about who will win. And yet, as the world has come to be managed in the language and practice of technical expertise, expert knowledge has itself been transformed. Adopted in crude vulgate by laymen and statesmen alike, expertise has become embroiled in struggle and come unhitched from the promise of decisive clarity, the usefulness of its indeterminacy more appreciated than its analytic rigor. In our world, indeterminate language and uncertain knowledge distribute wealth and power. That is strange—and hard to render visible, let alone contest.”

Let’s unpack the first few sentences. “In a world where so much is open to debate and conflict is all around us, how can it be so difficult to contest and change the things that matter? Things like the distribution of wealth or honor and shame. Or the pattern of environmental destruction. Or the ubiquity of kleptocratic rule.” Well, my unpacking is this: Are you kidding me? In a world of 7.5+ billion people, a world “where so much is open to debate and conflict is all around us”, how could it be possible to reach the slightest agreement on what the “things that matter” are, much less how to change them to suit everyone’s satisfaction? Do the people of the United States see eye to eye with the people of Nigeria on the “distribution of wealth”? Do Americans themselves see eye to eye on this matter? And what about the rest of the world? The Muslim “world”? (There are, surely, a dozen or more.) Or China? Or India? Or Africa? Or Latin America? Or even little Europe? Do the Germans and Greeks agree?

As for the “distribution of honor and shame”, include me out on that one. Who wants a UN on steroids (virtuous ones, to be sure)—which seems to be Dr. Kennedy’s “vision”—handing out “honor” and “shame”? Particularly the latter, since somehow I feel I might be on the receiving end of that one. It’s extraordinary to me that Dr. Kennedy can presume, with a straight face, that there is a near-universal consensus of what the world ought to be like—a laid-back, copacetic earthly Nirvana of income equality, renewable energy, and (presumably) transgender-friendly bathroom facility accessibility— in other words, the entire compendium of Harvard Faculty Lounge clichés made flesh—a consensus thwarted only by “the strange alchemy of expertise and struggle through which our world is made and remade.”

Well, what is this “strange alchemy” of which Dr. Kennedy speaks? Unsurprisingly, it is an alchemy of words. Experts claim to work to calm, mediate, and replace by sweet reason matters of political difference and clashing interests, but in fact they create ab initio a “winner deals and dealer wins” system that requires that their hands, and their hands alone, be always placed on the levers of power. We think we live in the “real world,” one defined and governed by ineluctable³ rules. But these “rules” are far from ineluctable. They are, in fact, artifice through and through, and malevolent artifice at that. Which is why all the things that we “all” want never get done, and why no one is ever held accountable for our endless disappointment.

Kennedy’s “arguments”, if they can be called that, are stunningly qualitative. Data are beneath him. To his mind, to state a thesis is to prove it, though all of his arguments ultimately depend on a single axiom, that all human beings are inherently and entirely selfish and all their actions can be derived from that fact. “Everyone wants something,” as the neo-Machiavellian Eleanor Roosevelt once put it.⁴

As Dr. Moyn explains, in Kennedy’s eyes even the “losers” are willing participants in the game:

“From benevolent Christians to human rights activists, groups have long known that the struggle to dominate is so deeply the way of the world that they would rather embrace the role of victims or minister to the defeated, choosing morality over victory. Even if they rarely change or even hope to change the outcome of cyclical engagement, such figures can at least claim not to have caused it. But ingeniously, Kennedy supposes that “losers” hardly portend some full-scale alternative to a world of struggle (as Jesus Christ and his followers have often prayed). For today’s losers by choice develop their own forms of expertise, Kennedy says, to justify and advance their roles in the world. Perhaps the righteous will reap rewards in the next life, or the meek will inherit the earth someday. But the real point is strategizing in this world. No one, it seems, is above the will to power.”

In his zeal to “prove” (that is, to argue) that images, rather than reality rule men’s minds, Dr. Kennedy has a confusing tendency to stumble over his own two feet. The notion of “one world”, which gives cover to the cold-blooded Wille zur Macht of the pseudo-dispassionate expert class who would rule us all, springs largely, according to Dr. Kennedy, from a photograph, the famous “Big Blue Marble” photograph of the earth taken from the moon by the first astronauts:

“Forty years ago it was common to say that the most meaningful product of the space race was a distant photo of planet earth. Environmentalists, world federalists, pacifists, and cosmopolitan humanists of all kinds latched onto the image as evidence of a deep truth; ours is one world, we are one humanity, planet earth is our only home. This idea was not yet hegemonic among the world’s political, commercial, and cultural elites: the photo pushed things along. Without a space program, without a Cold War, without a Life magazine, we might have not have had those photos at that moment in that way, and the idea may have arisen differently, at a different moment, or have seemed less suggestive or compelling.”

“Forty years ago it was common to say that the most meaningful product of the space race was a distant photo of planet earth.” Was it actually “common” to say this? How could it be ascertained that it was “common" to say this? And even if it were “common”, how does that prove that the “Big Blue Marble” photo really was “the most meaningful product of the space race”? Or does the value of Dr. Kennedy’s claim lie more in its charm and wit than any objective correlation to fact? To a very large extent, Dr. Kennedy’s book is simply a string of assertions that are held to be true because he says they are true.

Furthermore, consider the substance of what the professor just said. Is he arguing that “the pattern of environmental destruction”—a “truth” that he regards as self-evident and returns to over and over again—doesn’t really exist but is rather simply a construct, something that we worry about because someone took a picture that various “elites” were able to use to further their own hidden hegemonic ends at our expense rather than our interests? Because for the most of the book he argues in precisely the opposite direction, constantly accusing the “experts” of deliberately undermining all efforts to meaningfully address this “pattern of environmental destruction”, citing this pattern as the ultimate proof of their ultimate perfidy.

Later, he compares the “Big Blue Marble” with an earlier “One World” construct that he explicitly states was used to justify a policy of ruthless hegemonic oppression, “a tragic, historical example,” springing from “the teachings of Francisco de Vitoria, a Spanish theologian and jurist of the early sixteenth century.⁵ His writings were the space photo of the day, urging a conception of global humanity that included the newly discovered peoples of the new world. They were also human, he reasoned, cultivating land and organizing themselves in political communities, and were bound alongside Europeans by universal natural law. They had obligations as well as rights, including the duties of welcome and hospitality for friendly commerce and obligations to hear the gospel. When they violated these obligations or heard the gospel clearly but failed to convert, the Spanish were empowered, as arms of the universal law, to discipline and conquer them by force.”

But in fact the conquistadors had done much of their work before Vitoria started lecturing on the subject in the mid-1530s,⁶ and, very much to the point, and very much neglected by Dave, is the horror with which Vitoria regarded the conquistadors’ handiwork in the Americas:

“In truth … [the Indians] are men, and our neighbors … [.] I cannot see how to excuse these conquistadors of utter impiety and tyranny; nor can I see what great service they do to His Majesty by ruining his vassals. Even if I badly wanted the archbishopric of Toledo which is just now vacant and they offered it to me on condition that I signed or swore to the innocence of these Peruvian adventurers, I would certainly not dare do so. Sooner my tongue and hand wither than say or write a thing so inhuman, so alien to all Christian feeling!”⁷

Furthermore, the Protestant nations conducted their imperialist expansion with rather less religious pretense, the Dutch notably slaughtering everyone who got in their way, Spanish or “native”, and certainly without any regard for issues relating to the “gospel”.⁸ This was true of the British as well, and it was only after the Brits got their empire well in hand, after the Seven Years War, leaving them masters of both North America and India (pretty much) that the notion that they were spreading “civilization” around the globe came to be used, far more as a justification for what they had done than as a pretext for what they intended to do.

After the Napoleonic wars, when Europeans finally decided that fighting each other was a bad idea, the notion of spreading civilization via conquest did become something of an obsession, gathering momentum as the century approached its close, when it did become an obsession, because (it was assumed) that was how the Brits got rich. But there were always those who could penetrate the mask, including the Edwardian man of letters Hilaire Belloc, who defined the superiority of Western civilization in a succinct couplet: “For we have got the Maxim gun and they have not.”⁹

Kennedy’s point is that international lawyers today (he naturally chooses his own profession as the exemplar of expert evil) are no different than Francisco de Vitoria—they provide a pious mask both to cover and enable the raw appetites for gain that in fact both drive and oppress the world. He claims that modern international lawyers resemble their Spanish forebear more than they know, for they too are members of a church, though (fortunately) they have cast off the chains of both poverty and celibacy.

Kennedy has had considerable experience working on international trade agreements, and one of his objectives in his long discussion of international trade is to “disprove” the traditional liberal argument that free trade benefits all participants with the old mercantilist argument (though he, of course doesn’t call it that) that the wealth of nations is, like everything else in life, the product of a struggle–that is to say, the product of a successful struggle of winning rather than losing.

“If you leave law out of the picture, it is easy to underestimate the potential to rearrange access to rent. Many economists speak about the strategic imperative for companies—and countries—to enter and hold “high-value” segments of the global production process. It is common to think of a ladder running naturally from natural resource exploitation through processing to assembly, manufacturing, design, branding, and invention. It seems a rule of thumb that high-wage “innovation” or “knowledge-based” activities will offer opportunities to retain a greater portion of the overall gain from economic activity in the value chain than low-skill manufacturing. Law is an important tool for encouraging people to move up the ladder.

"But it is also important to understand how much this hierarchy of value itself depends on legal arrangements. A shift in intellectual property law and labor law, for example, might sharply diminish the exclusivity of innovation-based activities and reduce the availability of the privilege to access low-wage labor. At the margin, regulatory shifts in the many rules governing access to returns from different activities in global value chain can alter what is and is not a “high-value” activity. It is no wonder, therefore, that we also see intense struggle over those rules, undertaken in an extremely unruly and disparate fashion, among producers, consumer groups, investors, firms, cities, and nations.”

In the first paragraph, Kennedy uses the word “rent”¹⁰ in a confused manner. Sometimes, it simply means “a substantial profit” (from, e.g., “high-value” production) and sometimes it means “rent” in the technical economic sense of “rent-seeking” (an “unfair” profit obtained by some manner of guile or coercion rather than the operation of the free market). His real point is to argue that all the paraphernalia of “free trade"—all the agreements, negotiations, settlements, arbitrations, etc.—are simply masks for self-seeking rent-seeking. The fact that the facts refute him doesn’t concern Professor Kennedy, because facts do not concern him.

During the Reagan Administration, Kennedy worked on trade negotiations with the Japanese. Drawing on this experience, he labors to explain how struggles for "naked” advantage are clothed with chaste, “objective”, reality-defining terminology that both disguises what is really going on and precludes the consideration of alternatives that might help “the people,” who, in Kennedy’s world, are always being screwed—because, as he says at one point, “it’s rents all the way down”: all economic relationships are essentially carnivorous. But in his discussions of all this high-end wickedness, Kennedy is careful to keep his discussion highly abstract, often stating issues in the hypothetical, and often in the alternative, so that, conveniently enough, he’s never wrong, or, at least, never provably so:

“The outcome of arguments tethered, however loosely, to national interests and ideological positions also distributes power among those interests and positions. The persuasive power or legitimation effect of Japanese and American demands in future struggles was affected by their relative success in the Structural Impediments Initiative. While the initiative was under way, people were assessing—and reassessing—the relative “power” of American and Japan. Was Japan’s spectacular success in penetrating American markets—and America’s dismal record in reverse—a sign of American decline? Or had Japan been cheating, burdening its economy with government interference for short-term gains in ways that set the stage for a future decline or postponed an inevitable reckoning with American manufacturing prowess?”

Well, I don’t know, professor. Why don’t you tell me? Why don’t you explain to me, if international trade is simply a struggle for power, why the Carter and Reagan Administrations presided over the collapse of the American steel industry and the American consumer electronics industry, along with substantial reductions in the American consumer appliance industry and the American automobile industry, all of which could have been avoided, in the short run, by the application of tariffs? Perhaps the whole notion of Ricardan comparative advantage (which, to the extent that Kennedy understands it, he rejects) was taken seriously in America? Perhaps it even worked in the real world! American “decline” was certainly a matter of intense concern, during the second half of the Reagan Administration especially, but the subsequent reversal of fortunes between Japan and the U.S. had nothing to do with “American manufacturing prowess,”¹¹ but rather the remarkable explosion of the American computer industry, which caught Japan flat-footed and has gone on to reshape the world’s economy, with remarkably little participation of the Japanese, with the single exception of the Sony PlayStation.

In addition to his own experiences, Kennedy draws on other scholars’ theories to supplement his picture of a dog eat dog world—for example, Swedish economist Gunnar Myrdal’s notion of the “oppressor state”: “many aspects of the legal order function as a Myrdalian ‘oppressor state’,¹²” he tells us. “Global political and economic winners are given extraordinary powers: the UN Security Council veto for World War II victors is the most visible, but weighted voting arrangements across the international institutional system distribute rule-making power in ways that consolidate the capabilities of the center. The relative powers of creditor and debtor nations in international financial institutions is a striking example. Legal arrangements also affect the tendency of Myrdal’s forces of ‘migration, capital movements and trade’ to impoverish poorer regions.”

The only problem with this analysis is that it isn’t true. If the “Big Five” UN Security Council members were placed in such a privileged position, how is it that the ultimate “losers” of World War II—Germany and Japan, bombed into submission in the greatest display of destructive power even seen, surpassed the economies of two of their conquerors—France and Great Britain—in a matter of decades, while another of the Big Five, the Soviet Union, ultimately fell to pieces?

Unsurprisingly, because it utterly contradicts his thesis, Dr. Kennedy says nothing about the enormous growth in wealth among the developing nations over the last 30 years. This chart, using data from the International Monetary Fund, shows that, as of 2015, the great nations of China and India, most of the nations of Africa, and many of the nations of South America and Asia were enjoying economic growth rates significantly greater than that of the U.S. The increase in inequality within nations—the U.S, in particular—is of great concern. But the picture Dr. Kennedy tries to paint of pseudo-dispassionate experts contriving to despoil the weak for the profit of the strong is entirely false, or, more precisely, more than half a century out of date.

In his eagerness to expose Western covetousness, Dr. Kennedy tells us the following: “Nor is it surprising that as the leading economies negotiated over lower tariffs among themselves on manufactured goods in the context of the General Agreements on Tariffs and Trade, trade in textiles continued to be covered by a different and more restrictive legal arrangement, the Multi-Fiber Arrangement.”

All this is true, but Dr. Kennedy might have told us that 1) the MFA imposed zero tariffs on the very poorest countries and that 2) it expired in 2005. Textile tariffs haven’t been eliminated, but in 2014, textile export figures, according to Wikipedia, showed the following: China, $274 billion; India , $40 billion; Italy, $35 billion; Germany, $35 billion; Bangladesh, $28 billion; and Pakistan, $27 billion.

Dr. Kennedy’s view of the operation of the world economy is similar to Donald Trump’s: both see the world economy in zero-sum, mercantilist terms. The only way for one nation to get richer is for another to get poorer. There is only so much wealth in the world, and the only way of getting is taking.

Both views are equally false, of course, but both are given traction by the manifest failure of neoliberalism to guarantee a constantly expanding economy throughout the world. The notion of a self-policing economy proved sadly naive. The first Industrial Revolution brought massive political and economic instability to the West during the late nineteenth and early twentieth century, and non-Western nations are experiencing similar unpleasant growth pangs today. Meanwhile, the West is dealing, not too well, with the loss of its guaranteed economic preeminence, along with the impact of the “Second” (or Third or Fourth or Fifth) Industrial Revolution. The “Happy Time”, stretching roughly from 1945 to 1973, when economic progress was constant, with the rewards spread relatively across all income levels, seems likely to have been an exception to the rule rather than the “new normal”.

And, indeed, our “experts”, whom I so largely defend, do have much to answer for. The euro was a terrible idea, as Paul Krugman explains here. But it wasn’t “invented” as a way for “oppressor nations” to exploit the weak. Instead, European “elites”—a word I’m quite willing to use when it fits—were blinded by the fantasy of returning to La Belle Époque before World War I, when Europe was the center of world civilization. As Krugman (again) argues, in a column written just prior to the “Brexit” vote in the UK, European experts have continued to serve Europe badly, but it’s largely a case of being unable to admit that policies that “worked” in times of prosperity don’t necessarily work in times of hardship.¹³

Economics is the study of acquisitiveness and acknowledges, when it does not exalt, human selfishness. Dr. Kennedy takes up the example of international human rights law—of great concern particularly since the collapse of the Soviet Union seemed to offer a far more tangible possibility of a “world of law” than had ever been glimpsed before—to “prove” that even those lawyers who deliberately set out to tame the blind Wille zur Macht that once ruled the world ultimately and inevitably come to serve and indeed exemplify that which they sought to subdue. According to Kennedy, human rights lawyers, though they think they are ruled by reason and follow it wherever it leads, are in fact men (and women) of “faith”, a belief in their mission in theory that conveniently conceals how regularly they violate their professed ideals in practice. He has so much fun with this idea—the biblical allusions alone one can come up with are virtually unlimited—that he doesn’t notice how often he contradicts himself. He even contradicts himself to the extent of claiming that they aren’t ruled by faith except that, well, they are:

“What holds them [the lawyers, of course] back from exploring the costs and benefits or unanticipated consequences of their advocacy, their role in the legitimation of conflict or the reproduction of inequality is less belief or faith than a shared practice that arises for each professional as a personal identity—here I stand—combined with strategic cunning. It is difficult not to be reminded of a similar injunction to the believer:

“‘Behold, I send you forth as sheep in the midst of wolves. Be ye therefore as wise as serpents and as innocent as doves.’”¹⁴

Well, that takes some unpacking. “Here I stand”—who said that? Martin Luther, of course—not describing himself as a “professional” but rather making a profession of faith, though it would cost him his life. And if it is in fact “difficult” (which I doubt) not to be reminded of Christ’s words of admonition to his disciples, then, again, why doesn’t this make international lawyers persons of faith—rather Jesuitical, perhaps—but don’t they have Christ’s authorization to employ the serpent’s cunning in the name of the dove’s purity, the special privilege of their special virtue?

In the next paragraph, Kennedy surrenders himself to the religious imagery and argument that he had just denied:

“To associate human rights with injustice or bad outcomes both betrays the community of the faithful—“I knew him not”—and is bad strategy. If you bear witness, people will come to believe and act in the name of human rights. To affirm the downsides can only delegitimate law and retard progress toward a better world.”

In this, um, “loaded” paragraph, Kennedy, well, he confuses me. It’s easy to read the first sentence as saying “acknowledging the limitations of the human rights movement—its compromises and evasions—is akin to Peter’s denial of Christ,” though Peter’s (first) denial occurs in the present tense: “Woman, I don’t know him” (Luke 22:57). “I knew him not,” if you want to be fussy, is what John the Baptist said of Christ: “And I knew him not: but that he should be made manifest to Israel, therefore am I come baptizing with water” (John 1:31).

The meaning is clear (I think), even though “bear witness” does not mean “if you want to get along, go along”. The attitude that Kennedy is striving to convey is this: “People can’t handle the truth and, anyway, things will get better eventually and they will get better faster if people don’t know about the bad things we have to wink at”—which is what the communists used to say back in the day, and what the Democrats and Republicans are saying today, along with everyone else.

In fact, the perfect is the enemy of the good, and anyone seeking to achieve even “the good” from humanity’s crooked wood is constantly aware of the need to be a team player, not to lose one’s “effectiveness” or “usefulness”, and how often this amounts to keeping your mouth shut, but Dr. Kennedy, though he may not know it, is resolutely Kantian: there is no such thing as a “good lie” and no forgiveness for having uttered one. In an amusing display over his continued confusion over whether “faith” is a good thing or a bad thing, he reproaches human rights lawyers for their lack of capacity for appreciating or experiencing “pluralism”—the recognition that one’s vision of reality is incomplete.

“People recoil from this experience of pluralism. Experts turn back to faith or reach rapidly for the reassurance of theory and prior practice. But there is also a long tradition praising such moments in religious and political thought: the moment when “unknowing” and “deciding” cross paths, when freedom and moral responsibility join hands. It is what Carl Schmitt had in mind by “deciding in the exception” or what Max Weber spoke of as having a “vocation for politics.” It is what Kierkegaard described as “the man of faith,” or Sartre as the exercise of responsible human freedom. This is what Jacques Derrida meant by ‘deconstruction’. The sudden experience of unknowing, with time marching forward to determination, action, decision—the moment when the deciding self feels itself thrust forward, unmoored, into the experience. In that moment of vertigo, the world’s irrationality makes plain the constructed theories about how it all fits together and the tendentiousness of practices in their name. Professional practice suddenly has not progressive telos, and international law opens as a terrain for politics, rather than a recipe or escape from political choice. It is in such a moment that the world could look again like 1648: open to being remade.”

I am such a glutton for unpacking, aren’t I? What is my fucking problem? Well, enough preamble, let’s get on it. Kierkegaard is well worth reading, cum grano salis, but few men were more compulsively “impractical”. I don’t know if Max Weber even claimed to have a vocation for politics, but I do know, from reading his political occasional pieces, that he was, by my standards, a fanatical German imperialist, who wished Germany had attacked France in 1905, when Russia’s defeat in the Russo-Japanese War, coupled with the ensuing revolutionary unrest, had reduced that country to a military nonentity. His “strategy” during World War I called for Germany to make a “compromise peace” that would leave it dominant in Europe and allow it to position itself for the “Big War” to come with Great Britain, whose empire he fiercely envied and coveted. ¹⁵ Sartre, in his private life, was an abominable exploiter of young women and publicly a consistent advocate and apologist for both Stalin and Mao Zhe-Dong, the supreme mass murderers of all time. Is this what is meant by “responsible human freedom”? Astonishment—what Plato called “θαυμάζειν” (“thaumazein”)—is a very philosophical emotion, but it’s not a guaranteed guide to correct action. ¹⁶

As for the irrationality of the world, the fact that the world is (largely) irrational does not mean that we can therefore reshape it as we please. It might mean that we cannot reshape it at all. As for Dr. Kennedy’s remark that “international law opens as a terrain for politics, rather than a recipe or escape from political choice,” hasn’t the entire point of his book been that international law is necessarily a “terrain for politics”—that is to say, “a world of struggle”—and the notion that it could be “a recipe or escape from political choice” was simply a mask for relentless self-dealing? And why would removing this mask change the self-dealing thus revealed?

And as for Dr. Kennedy’s last sentence, that it is, in effect, “always 1648”— referring to the Treaty of Westphalia signed in that year to end the Thirty Years War—what was so wonderful about the world that that treaty “remade,” other than that the killing mostly stopped? By modern standards, freedom, either political or religious, existed nowhere in Europe. Major wars began again with the Franco-Dutch War in 1672, followed by the War of the League of Augsburg, and the War of the Spanish Succession, all three wars fought largely in response to Louis XIV’s efforts to make France the dominant power in Europe, in exact opposition to the supposed achievement of the Treaty of Westphalia, whose professed goal was to establish a balance of power in Europe, with each state respecting the others’ sovereignty. In 1709, the effects of the last and bloodiest of the three wars, coupled with a severe winter, reduced the population of France by about 10%—2 to 3 million people, depending on who’s doing the counting.

By any “liberal” standard—and I am a liberal—the greatest “remaking” in history occurred after World War II, which gave peace, prosperity, and political freedom to North America, Western Europe, and Japan. It is “amusing” to me that in his epilogue, Dr. Kennedy seeks to stir his students, and the rest of us, to the “spirit of 1648”, rather than the “spirit of 1945”, because he can’t admit that anything good has happened in recent times. Even the more recent remaking, the “spirit of 1989”, following the collapse of communism, in which we are still in the midst, and of which Dr. Kennedy very largely disapproves, has in fact been more problematic, for a great many reasons, but the gains are still substantial. With all the backsliding in Eastern Europe, life is, shockingly enough, much better without communism than it was with it.

The post-WWII remaking had the “advantage” that, thanks to the Soviet threat to Europe that developed almost immediately after the war, and particularly after the explosion of the Soviet atomic bomb in 1949, the United States felt compelled to offer constant leadership and funding on a very large scale, a compulsion that was lacking after communism collapsed. In addition, the U.S. could “afford” to be magnanimous following World War II because our economy dwarfed any other nation’s. In 1989, we were far richer than in 1945, but by then we faced real competition in many sectors, principally from Germany and Japan.

Even after demanding of his fellow legal drudges an existential crise du cœur generally regarded as the mark of a saint or philosopher, Dr. Kennedy still isn’t done. In the last section of his book, devoted to “law and war”, he clearly intends to paint the “last corruption” of the law in the very darkest colors.

“On the one hand, modern war has engaged the bureaucratic, commercial, and cultural institutions normally associated with peace. On the other, what I term “modern law” has proliferated the doctrinal materials and interpretive methods that can be brought to bear in discussing the distinctiveness and legality of state violence. Lines are now harder to draw, both because the world of war has become more mixed up and because ambiguities, gaps, and contradictions in the materials used to draw the lines have become more pronounced. At the same time, however, there is a lot more line drawing going on. There has been a vast dispersion of sites and institutions and procedures through which legal distinctions about war are made. This proliferation of legally framed activity has made war and sovereign power into legal institutions even as the experience of legal pluralism and fluidity has unhinged the idea of a law which, out there, somehow distinguishes. It would be more accurate today to speak about an international law that places legal distinction in strategic play as a part of war itself, further proliferating and fragmenting the sites of its doctrinal and institutional operation.”

On such a portentous subject, Dr. Kennedy feels obliged to pitch his discourse at an even higher level of generality and incoherence. Why are “lines” now “harder to draw”? What sort of lines are we even talking about? Why, and how, is the “world of war” “more mixed up” than it used to be, and what can it possibly mean to say that “ambiguities, gaps, and contradictions in the materials used to draw the lines have become more pronounced”?

Dr. Kennedy’s intention, unsurprisingly, is to “expose” the fact that law, while pretending to mitigate the horrors of war, has only made them worse. “The idea is that the articulation of right will discipline, limit, and restrain sovereign power when it turns to violence.” Anyone who has made it to the last chapter of Dr. Kennedy’s book knows how that expectation will turn out. “Law has become—for parties on all sides of even the most asymmetric confrontations—a vocabulary for marking legitimate power and justifiable death. It is not too much to say that war has become a legal institution—the continuation of law by other means.”

This strikes me as no more than verbal cuteness. The U.S. Constitution gives the Congress the authority to declare war. Does this mean that under the Constitution war is, and has been, a “legal institution”? Why not?

In fact, the European nations, in their endless collisions with one another—including the Thirty Years War, which was ended by Dr. Kennedy’s beloved Treaty of Westphalia—did repeatedly attempt to develop some “rules for war.” These rules were inevitably bested by the “law of necessity”—most spectacularly in World Wars I and II, when Europe came remarkably close to destroying itself.

The United Nations is a monument to the horrors of the first half of the Twentieth Century, as experienced in Europe. That institution was not, of course, capable of resolving the Cold War. Great nations would not submit to its judgment. Although the Cold War has ended, the same conditions remain today. The United States probably could have conducted a restrained “War on Terror” through the UN, but the Bush Administration, after obtaining the fig leaf of UN approval for the invasion of Iraq, deliberately embarked on a unilateral and “extra-legal” policy in the Middle East, which ultimately proved disastrous.¹⁷

Since that time, it’s fair to say that the U.S. has abandoned the forms of legality while waging war, as long as there aren’t a lot of troops involved. There could be, and should be, a book written about the use and abuse of the law under both the Bush and Obama administrations, but Dr. Kennedy, who is not an expert on these matters, does not even render a sketch. Instead, he engages in a flurry of grim verbiage, presumably because if he did not accuse the law of having become death itself, he would not have sufficiently darkened its name. Naturally, Dr. Kennedy does not even mention works such as Steven Pinker’s The Better Angels of Our Nature, which dares to suggest that the world is actually getting better.

Dr. Kennedy clearly labors to take his place with the great unmaskers of history, like Rousseau, Marx, and Nietzsche, and their earnest and unconvincing pseudo-descendants Derrida and Foucault, who “demonstrate” that the world, contrary to universal belief, is not getting better. It’s getting worse! Of the three, Marx alone was the unalloyed optimist, confident that a new and much better world was in fact just around the corner, as soon as the immiseration¹⁸ of humanity reached its necessary climax and the expropriators were finally expropriated. Marx felt he could explain why there was evil, and how good could come from it. Rousseau was famously ambivalent about the inevitable though likely horrible revolution to come—its flames could so easily prove to be more consuming than purging. Nietzsche welcomed destruction—it served everyone right. Since Nietzsche had almost no interest in “society” or “humanity”, what survived the wreckage was almost irrelevant. What mattered was that the weak be punished for their unwillingness to live nobly, to live without God.

For many, Rousseau “predicted” the French Revolution, as Marx and Nietzsche predicted the two world wars, though their diagnoses could not have been more different. Yet since World War II, and more spectacularly since the rise of the Reagan-Thatcherite neoliberalism so detested on the Continent, and most spectacularly since the collapse of communism, “advanced thinkers” have been confronted with the greatest of horrors, the renewed triumph of the bourgeois.

Well, not so fast. The “dream” that briefly bloomed from about 1989 through 2008, that the benefits of transparency in politics and economics were so overwhelming that no nation would have any reason to resist them proved grossly optimistic. The power of “unreason”, in the form of persistent Islamic terrorism, in massive economic instability, and, most recently, in xenophobic reactions to both, sweeping across all of Europe, not to mention Donald Trump’s America, has made itself manifest with extraordinary completeness. So does Dr. Kennedy have a point?

In a word, no. Donald Trump’s election strikes me as the worst thing that has happened in the United States in my lifetime—worse than the race riots of the sixties and the war in Vietnam, which were definitely hard times—but I believe that Dr. Kennedy’s picture of a world ruled by remorseless, soulless hypocrites is entirely false, an extension of the “European disease”, the necessity of the clercs to prove their superiority to, and absolute separation from, the bourgeois, a compulsion that is an end in itself and is in fact the point of life.

There was a time when American intellectuals were shockingly in tune with American society. Although a great many intellectuals were contemptuous of Roosevelt and his petty-bourgeois New Deal, and hostile as well to his aggressively hostile stance towards Hitler, the wartime coalition with the Soviet Union, the great triumph over fascism, and the restoration of American prosperity after the war made America look not so bad. The McCarthy era left a very bad taste in the mouth of many intellectuals, but continued prosperity, the election of JFK, and the rebirth of liberal idealism in the form of the modern civil rights movement again encouraged intellectuals to identify with the U.S. America, with all its faults, really was a progressive nation and a force for good.

Vietnam was the great hammer blow to the unity of the left. An early sign to me was the delighted reception given by many intellectuals to Barbara Garson’s vicious 1967 satire MacBird, essentially accusing Lyndon Johnson of murdering JFK. I had the sense that leftists like Dwight MacDonald were tired of being good, tired of behaving themselves and making compromises. They wanted to have fun, to be irresponsible, to hate Lyndon Johnson because was a hick and a hillbilly, to laugh at everyone who wasn’t like themselves.

The split only deepened after the war ended. America didn’t come back to liberalism as the left expected. The civil rights movement, instead of healing America, split the country and began a long-term process of pushing the white working class out of the Democratic Party. The cultural revolutions set in motion by the tumult of the sixties were intoxicating for the few but toxic to the many. The stunningly conservative Ronald Reagan proved to be the new genius of American politics.

Remarkably, the Reagan Era saw both a political and a cultural revolution. For decades, intellectuals had looked down their noses at that ultimate moral nonentity, the businessman. But suddenly, the private sector—particularly that portion of it located in Silicon Valley, Wall Street, and along Route 128—had all the glamor. And beyond the glamor was the money, fortunes that beggared the imagination. Millions became billions, and then billions were piled on top of billions. Intellectuals, who once thought they ran the world, and always thought they ought to, could only gape in wonder—wonder and impotent rage—staring upwards at the thousand-foot Midtown aeries of their new masters.

Academia became the last stronghold of the left. The massive expansion of postsecondary education that began in the sixties and swept to new heights in the seventies created thousands of jobs, and these jobs were filled, particularly in the humanities and the social sciences, by the “new left”. Academia was their refuge and their home. Their isolation was proof of their virtue. The cult of the outsider began.

Dr. Kennedy’s book, and Dr. Moyn’s rapturous reception of it, are the fruit of this tree. The “point” of this book is that the outside world is inherently corrupt, is corruption through and through. A World of Struggle is entirely impractical, giving no guide to action, because only a fool or a scoundrel would want to act. In fact, the mere impulse to act is in itself ample evidence that one is a scoundrel.

Dr. Kennedy, of course, is not actually preaching Buddhist withdrawal. He teaches at Harvard Law, not a monastery. He ends his book with a three-page “Epilogue”, assuring his students that it is “1648” once more, or “1918”, though he doesn’t explain why the current time is as pregnant as those prior two dates, and, indeed, in his earlier urgings for spiritual transformation he implies that it is the individual who makes the time rather than the other way around.

But, having “proved”, like Foucault, that “power is everything”, having unmasked every virtue as mere self-seeking, he is at a loss to explain why winning isn’t everything. What’s the point of it “being 1648”? So you can remake the world according to your lust for power instead of someone else’s? Why is that an improvement, other than for your own ego?

The topper to all this, the cherry on the sundae, as it were, is that Drs. Kennedy and Moyn are teaching at Harvard Law, Ego Ground Zero, probably the most ferociously competitive collection of human beings on the face of the earth. And this book is a mask for that appetite. Ensconced in a very palace of privilege, these gentlemen array themselves in the garb of Villon, Baudelaire, and Rambaud, and for that very reason, they have no clothes. ¹⁹

Afterwords
For two years, I was a singularly undistinguished student at the University of Pittsburgh School of Law–arguably, not the same as Harvard. Before dropping out, I came to a number of jaundiced and no doubt highly subjective conclusions. First, that while there were many brilliant lawyers, there were no profound ones. And, second, that law school is essentially a glorified trade school. Only two years are actually necessary. You learn 75% of what you need to know in the first year, and 25% in the second. Bright students naturally blow off their third year; they never go to class and concentrate on what’s important, namely, their career.

The truly bright pull a Clinton. When Bill went to Yale, he didn’t even bother to show up in New Haven until November. He never went to class, never read the cases, never wrote up a precis. He crammed before exams using study guides and other people’s notes, and made law review in his first year. The professors hated him, of course, for “suggesting” that they were worthless, which was largely true, and treating Yale Law School as though it were nothing more than a high-end credentialing/networking service, a (relatively) open access Skull and Bones, so to speak. To prove that they are more than a high-end credentialing/networking service, professors like Kennedy and Moyn at law schools like Yale and Harvard eschew conventional legal treatises entirely, which tend to be tedious, incremental compilations of minutiae, in favor of fashionable, up to minute exercises in gaseous continental sophistication, in order to beguile themselves, if not their students, from their true situation.