12 November 2020

Andrea Bianchi, Philosopher and Theorist of International Law

Legal theory and practice are closely intertwined. Practice always presupposes a theoretical model or method, and theory helps asking the good questions and thinking critically about issues too often taken for granted in law. These observations run through this interview that Andrea Bianchi, Professor of International Law and Director of Studies at the Graduate Institute, gave us on his latest and forthcoming publications. In “Epistemic Communities in International Arbitration”, a chapter for the The Oxford Handbook of International Arbitration, he argues that epistemic communities provide a new lens through which one can productively explore the intellectual universe and practical operation of international arbitration. Likewise, Professor Bianchi’s current book projects draw on various disciplines such as literary criticism, philosophy, epistemology and sociology to offer new insights into legal knowledge production and treaty interpretation. 

Your academic research ranges from international human rights law, security and counter-terrorism, the law of jurisdiction and jurisdictional immunities to state responsibility and the law of treaties. Recently, however, you have turned to international legal theory and philosophy. Can you tell us why? 

I suppose because I wanted to go beyond law as technique, and understand what law is and how it works, what are the forces and agents that shape its processes and influence its content and practical application. Law is not Newtonian mechanics ruled by strict rules. It is a social process handled by human beings. It needs no metaphysics to be understood and justified. Theory and philosophy help asking the good questions, and thinking critically about things that are too often taken for granted in law (and elsewhere). 

Precisely, in your most recent piece, “Epistemic Communities in International Arbitration”, you present an innovative (and controversial) lens to analyse the behaviour of international arbitration practitioners/professionals. How did you arrive at the conceptualisation of international arbitration lawyers as an epistemic community? 

I had previously worked on the nature and function of epistemic communities in international law, and I thought that the field of international arbitration could be a very interesting testing ground for the explanatory force of my ideas. I take the concept of episteme to refer to the “knowledge” we have of a given field, to the way in which we come to apprehend it theoretically, to use it practically and to explain its operation. In other words, I mean to refer to the set of collective shared beliefs and presuppositions that characterise the field of international arbitration, understood both as a scientific field of theoretical inquiry and as a practice. The ensemble of the actors involved in the dynamic processes whereby our knowledge of international arbitration – i.e. the understanding of what international arbitration is and how it works – is formed and shaped can be properly qualified as an “epistemic community”.

Could we say that these epistemic communities intentionally reinforce their own identity as authoritative and objective scientific experts – or is this an unintended process and outcome?

Although they lay claim to objectivity and scientific authority, epistemic communities are carriers of “distinct normative visions” and cultures that they advocate more or less overtly in order to gain or consolidate control of any given field, be it the whole of international law or one of the substantive areas in which they operate. They tend to be insular, if not completely self-referential, and they often ignore what is going on in other areas, as they tend to believe that the only meaningful practice or the very core business of international law is their own specialisation. They produce a worldview that determines the visual parameters by which we relate to that particular world. Many of its members simply comply with these parameters without questioning them, or the processes that generate them. Others are fully aware of the stakes, in terms of power, and have vested interests in maintaining or enhancing their individual position within the epistemic community to which they belong. 
This chapter provides a critical perspective on the widespread idea that there is an almost intractable tension between theory and practice. Why should practitioners of international arbitration bother with concepts such as epistemic communities?

I reckon that many would swiftly respond that they simply should not, and rather get on with their business. Arguably, this would be a very simplistic stance to take on the matter for several reasons. First, to presuppose that practice should be unhindered by theoretical reflection is tantamount to saying that practice and theory can be neatly distinguished and separately dealt with. This is at best a misrepresentation of reality. In fact, any practice requires a theory to be understood and justified. Conversely, any theory needs a practice to be tested and evaluated in terms of being able to provide a persuasive explanation of the processes it claims to account for. The widely held idea that practitioners get the work done on the ground while academics worry about petty academic disputes about insignificant or irrelevant issues is misleading. Practitioners – regardless of whether or not they are conscious of it – always act on the basis of a “theory” or “method”, i.e. a set of presuppositions and beliefs that provide the necessary background to the exercise of their practical skills. Theorists, in turn, cannot afford to neglect the practical import of the social practices that they set out to investigate. The ultimate test for the credibility of legal theory is its capacity to account for the social practice which we call law. If academics indulge in what I call “armchair theorising” – by which I mean the disturbing tendency to elaborate complex theoretical constructs that are far removed from the realities they purport to explain – they fail their mission and they jeopardise the credibility of their discipline. In fact, theory and practice are closely intertwined.

Can you tell us about your current research projects? 

I am currently finalising a volume on International Law’s Invisible Frames: Social Cognition and Knowledge Production in International Legal Processes, co-edited with Moshe Hirsch of the Hebrew University, Jerusalem, to be published by Oxford University Press in 2021. The research project aims at taking stock of the relevance of social cognition and knowledge production (the invisible frames) to international law processes. Both operate at the same time in forming our understanding of what international law is and how it works. The acquisition of knowledge is subjected both to a certain way of apprehending the world as individuals and members of a collective as well as to forces and processes that mould our understanding of our object of investigation. The book aims at making such invisible frames visible and at contributing to the epistemological debate in international legal scholarship.  

I am also under contract with Cambridge University Press to co-author with Fuad Zarbiyev a monograph on Demystifying Treaty Interpretation. This should be quite an innovative book. Its main aim is to expose international lawyers to ways of thinking about interpretation with which they are generally unfamiliar. The principal contribution and originality of the project consist in its attempt to analyse standard treaty interpretation discourse in light of theoretical insights offered by disciplines such as literary criticism, philosophy, and sociology, all of which have dealt with issues of interpretation and whose perspectives – we believe – are invaluable to any international lawyer. It also engages with broader systemic issues such as the freedom and constraints faced by any interpreter in international law, the degree of control that the treaty drafters can exert upon future interpreters, or the importance of persuading a given audience in the interpretive game. In its innovative use of insights from other disciplines, this book fundamentally challenges the conventional boundaries drawn up in the international legal field.

Regarding your concern about not being trapped within conventional approaches, do you have any special advice that you would like to share with our PhD candidates?

Don’t turn your PhD into an obsession. Live your life fully if you can, publish things on the side, remain humble and intellectually curious. Who you are as a human being definitely does not depend on your PhD, and even your career will not be determined exclusively by your PhD. Hopefully, you will accomplish many other different things professionally in ways that one cannot anticipate. Look always at the big picture. It is dangerous to remain entrapped in the narrow constraints of one’s own field of expertise. One risks losing sight of what is really worth looking at. 

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Full citation of Professor Bianchi’s chapter:
Bianchi. Andrea. “Epistemic Communities in International Arbitration.” In The Oxford Handbook of International Arbitration, edited by Thomas Schultz and Federico Ortino. Oxford: Oxford University Press, 2020. 10.1093/law/9780198796190.003.0024.

Interview by Ana Beatriz Balcazar-Moreno, PhD candidate in International Law; editing by Nathalie Tanner, Research Office.
Banner picture: excerpt from an image by Lightspring/