# Legal Imagination as Resistance

Jean d'Aspremont

► To cite this version:

Jean d'Aspremont. Legal Imagination as Resistance. Rechtsgeschichte - Legal History. Journal of the Max Planck Institute for European Legal History, 2021, 2021 (29), pp.265-266. 10.12946/rg29/265-266. hal-03971450

HAL Id: hal-03971450

https://sciencespo.hal.science/hal-03971450

Submitted on 3 Feb 2023

HAL is a multi-disciplinary open access
archive for the deposit and dissemination of sci-
entific research documents, whether they are pub-
lished or not. The documents may come from
teaching and research institutions in France or
abroad, or from public or private research centers.

L'archive ouverte pluridisciplinaire HAL, est
destinée au dépôt et à la diffusion de documents
scientifiques de niveau recherche, publiés ou non,
émanant des établissements d'enseignement et de
recherche français ou étrangers, des laboratoires
publics ou privés.

<figure><img src="image_1.png" /></figure>

Distributed under a Creative Commons Attribution 4.0 International License
Rechtsgeschichte
Legal History

www.lhlt.mpg.de

http://www.rg-rechtsgeschichte.de/rg29

Zitiervorschlag: Rechtsgeschichte – Legal History Rg 29 (2021)

http://dx.doi.org/10.12946/rg29/265-266

Rg **29** 2021 265–266

Jean d'Aspremont *

Legal Imagination as Resistance

Dieser Beitrag steht unter einer Creative Commons Attribution 4.0 International License

<figure><img src="image_2.png" /></figure>

<footnote>* Sciences Po Law School, Paris, jean.daspremont@sciencespo.fr</footnote>
Jean d'Aspremont

Legal Imagination as Resistance

In its author's own saying, *To the Uttermost Parts of the Earth* constitutes a history of legal imagination understood as a history of the ways in which ambitious men, mostly in Europe, used the legal vocabularies available to them in order to react to import events in the surrounding world« (1). As a history of legal imagination, *To the Uttermost Parts of the Earth* continues – and decisively contributes to – a now firmly established scholarly tradition of engagement with legal imagination in the international legal literature. In fact, nowadays, international lawyers often invoke imagination to refer to the discursive, argumentative, interpretive, performative possibilities that are offered (or refused) to them by their tradition, their training, their discipline, their vocabularies, their forms, their symbolic universe, their history, their regime of truth, their belief system, the structure of their argumentation, etc. That the author perpetuates such engagement with legal imagination is no coincidence, for Martti Koskenniemi himself has long been instrumental in elevating legal imagination into one of the points of entry into the scrutiny of international lawyers' ways of thinking.

Limited space has been allocated to the contributors of this *Forum*. Because I feel embarrassed to speak about an impressive 1107-page long history of legal imagination within such a restricted space, I want to start by saying something about space. I particularly wish to say a few words about the space provided by Martti Koskenniemi's book as a *book*. A book often comes across as a neat, linear, totalizing and systematic container for a set of pre-existing ideas, historical findings, stories, arguments, etc. The 1107 pages of *To the Uttermost Parts of the Earth* can certainly be perceived this way. Yet, in my view, there is no book that functions just as the container for pre-existing ideas, historical findings, stories, arguments, etc. Indeed, for I believe there is no content that pre-exists its inscription, a book cannot be distinguished from its content. A book, as inscription, always supplants its ever deferred and always absent content. This book is no exception to that.

The reason I am making this point – which I noticeably borrow from French poststructuralist literary theory – is to highlight why I believe that Martti Koskenniemi’s *To the Uttermost Parts of the*

*Earth* offers us less a set of pre-existing ideas, historical findings, stories, arguments, etc. that ought to be interpreted by exegetic readers but more a *space* where something happens and will be happening in the decades to come. As a book, it is a space for a great variety of events that are yet to come. What happens and will happen in the space provided by his monograph is and will be the result of his readers exercising imagination. What I mean here is that the readers of *To the Uttermost Parts of the Earth* are bound – just as the contributors to this *Forum* are as they venture into the space offered by that volume, to fill it through the exercise of imagination. Imagination is one of the ways in which one fills the space provided by the inscriptions with which one engages in order to make something happen. Interestingly, *To the Uttermost Parts of the Earth*, as a book on the history of legal imagination, offers a space now for imagining how lawyers, theologians, merchants, poets, philosophers, medical doctors and economists have themselves filled the space available to them through their imagination then. In that sense, *To the Uttermost Parts of the Earth* is a happening about centuries of happenings or, said differently, it is a space about uses of space then and now. This entails that the readers are not only following the footsteps of all the protagonists whose stories and interventions are told by Martti Koskenniemi in his new book; they are also caught in the same indefinite space.

The abovementioned emphasis on the idea of space could be construed as supporting a reading of *To the Uttermost Parts of the Earth* as yet another book on the constraining dimension of structures and, thus, on the limited repertoire of possibilities left to international lawyers by virtue of their specific regimes of truth. After all, the idea of space comes with the idea of capacity, limit, boundary, possibility, etc. What is more, a reading of *To the Uttermost Parts of the Earth* that foregrounds the limited discursive, argumentative, interpretive, performative possibilities available to international lawyers would not be entirely unwarranted, for Martti Koskenniemi has long been interested in how structures govern and repeatedly made the point that only certain discursive, argumentative, interpretive, performative possibilities are within
reach because of the work of structures. In that
sense, it is very tempting to read this book as a
continuation of the author' structural work on
international law's limited possibilities. Yet, I
read *To the Uttermost Parts of the Earth* in the
opposite way. I actually take it as a work on the
thinking of the impossible then and now. Let me
explain this point, which is my way to fill the space
provided by the book in the very limited space
allotted by the convenors of this *Forum*.

Whilst Martti Koskenniemi is prompt to recog-
nize – drawing on Gaston Bachelard’s notion of
epistemological obstacles – that vocabularies con-
stitute »the historical baggage that limits what is
possible to imagine in a persuasive fashion today«
(4), he regularly indicates that exercises of imagi-
nation by the lawyers, theologians, merchants,
poets, philosophers, medical doctors and econo-
mists that populate his history of legal imagination
are works *around* the vocabularies that »block«
thinking and »simplify« reality (3). For Martti
Koskenniemi, imagination is a tool that allows
one to shift between discourses, distort vocabula-
ries, and possibly use the language against itself.
This is also how I read what the author is trying
to tell the readers in the last chapter of the book.
Indeed, in that final part, the author, after reject-
ing point blank the old modernist assumption
that language mechanically carries content and
thought, immediately takes distance from the op-
posite view according to which language enjoys
full primacy over content and thought. Martti
Koskenniemi specifically writes that »[o]ne of the
ways in which I find the thesis about the primacy
of language to thought and action to be too strong
is that it exaggerates the passivity of imagination«
(952–953). In my own reading of that concluding
chapter, the author is telling us that the structure
governs *but not entirely*. This dent in the sovereignty
of the structure is, for Martti Koskenniemi, the
work of imagination. To put it simply – and maybe
somewhat simplistically – imagination, for Martti
Koskenniemi, is the way out of the structure.

That imagination, according to my reading of
Martti Koskenniemi's understanding it, is the way
out of the structure is the very reason why I read
*To the Uttermost Parts of the Earth* as a work on the
thinking of the impossible. For I believe that there
is no way out of the structure and that the outside
of the structure remains within the structure, the
striving for an »outside« of the structure that comes
with the exercise of imagination is bound to
belong to the impossible. In other words, trying
relentlessly to get out of the structure is a type of
thinking of the impossible.

It should be made clear that thinking about the
impossible is no minor thing, let alone a fantasy.
It could be argued that, as a form of thinking,
thinking about the impossible is the greatest form
of resistance at the disposal of international lawyers
against their tradition, their training, their disci-
pline, their vocabularies, their forms, their sym-
bolic universe, their history, their regime of truth,
their belief system, the structure of their argumen-
tation, etc. In that sense, imagining, as it is con-
strued by Martti Koskenniemi in *To the Uttermost
Parts of the Earth*, is resisting. His history of legal
imagination is thus a history of resistance.

A final observation is warranted. Whether all
the multitude of acts of resistance by these am-
bitious European lawyers, theologians, courtiers,
professors, advisers, political writers, etc. have re-
sisted the just or the unjust is yet another question
– and *To the Uttermost Parts of the Earth* allows us to
think that more often than not resistance has gone
hand-in-hand with injustice. Speaking of a better
world, as Martti Koskenniemi recalls on several
occasions in his book, requires that we are able to
speak of the injustices of the past as they have been
produced by exercises of imagination, including by
the work of resistance.

<figure><img src="image_3.png" /></figure>