I think lately there has been a great interest to think about new approaches to international law (NAIL) in order to spark up the conversations around it.
One of these new approaches is about the Critical Studies to International Law, but, being critical is just to say you criticize the status quo? that you don’t agree of what is going on? or by being critical one is being uncritical of the self position adopted? what is to be critical in the first place?
Myself, I am puzzled about this, since, by having a formal education in law, there is not much about methodologies, at least there were only two theories to be discussed, positive law and natural law.
However, in International Law seems to be a different story, it is not only this dialectic between Positive and Natural Law, but also different methods and perspectives which were classified in 1999 at the AJIL simposium, obviously we have legal positivism, the New Heaven School, International Legal Process, Critical Legal Studies, International Law and International Relations, Feminist Jurisprudence, and Law and Economics.
So, I am not an expert on methodologies, and it seems that today the word Critical, to the study of international law is in vogue, but what is to be Critical? and against what we should compare it?
The first point is that Critical thinking must be compared against Problem Solving Theory, which I draw it from IR theory and more in to it with Robert Cox’s article “Social Forces, States and World Orders: Beyond International Relations Theory”, we can say that to think critically one
A quote on Critical thinking:
“Critical theory, unlike problem-solving theory, does not take institutions and social power relations for granted but calls them into question by concerning itself with their origins and how and whether they might be in the process of changing. It is directed towards an appraisal of the very framework for action, or problematic, which problem-solving theory accepts as its parameters. Critical theory is directed to the social and political complex as a whole rather than to the separate parts. As a matter of practice, critical theory, like problem-solving theory, takes as its starting point some aspect or particular sphere of human activity. But whereas the problem-solving approach leads to further analytical sub-division and limitation of the issue to be dealt with, the critical approach leads towards the construction of a larger picture of the whole of which the initially contemplated part is just one component, and seeks to understand the processes of change in which both parts and whole are involved.”
One possible conclusion that I get from Cox, is that in order to say that one is doing Critical Studies on International Law, first one needs to be a generalist, and not an international lawyer specialized only in one strand of International Law, to take International Law as it is but as well understand the process in change having the larger picture. To be critical in International Law, then you have to go deep into it.