Professor Bianchi participated in a conference with Gerry Simpson, Chair in Public International Law at the London School of Economics and Political Science (LSE), about “International Law and Imagination” on 3 April 2019. The conference was a conversation to discuss the ways in which imagination is relevant to international law, its power and limits with regards to international law and if international law could be re-imagined to reshape the present and build alternative futures. In an interview, Professor Bianchi answers further questions on the subject.
1. Does imagination have a role to play in international law?
Imagination always has a role to play, in international law and elsewhere. Few people would associate Einstein with the quote “Imagination is more important than knowledge”. Imagination helps looking at old problems from a new perspective, raising new questions and fostering creativity. Law is not merely a set of rules. It is also a language, a social practice and a culture. Imagination can be used in myriad different ways: as an antidote against dogma, as a tool to provide new solutions to emerging problems and as a challenge to contemporary orthodoxies.
2. Law as a craft, however, is rarely associated with imagination. How would you explain this?
This is the way in which most lawyers are still trained and socialised into the profession. Aversion to imagination becomes a second skin and is hardly ever called into question. At the same time, this is quite paradoxical as the law is already imbued with imagination. We reify institutions and legal entities (“the Court”, “the Law”, “the Law-maker”, etc.) and we attribute to them anthropomorphic features. The law has a will of its own, it may constrain, or be stretched and twisted; principles can direct, and customary rules may even “crystallise”, attaining the quality of pure crystal after a chemical process! Who says that imagination has no place in law?
3. Can you give some examples of the successful use of imagination in the history of international law?
A powerful illustration is what the leaders of the Allied Powers did during World War II, when they started imagining the future of a possible world order at a time in which the fate of the war still hung in the balance. Their imaginative power led to the adoption of the UN Charter in 1945. Another good example is the creation of “peacekeeping forces” by the UN without a clear legal basis. We often say that they are based on the 6 ½ Chapter of the UN Charter, between Chapter 6 on peaceful settlement of disputes and Chapter 7 on the maintenance of international peace and security. But perhaps the most striking illustration of the use of imagination is the use of the Alien Tort Claims Act (a statute dating back to the first Congress of the US in 1789) to litigate human rights cases based on violations of international law before US domestic courts.
4. What is the place of imagination in today’s academic world?
Imagination plays little, if any, role in most curricula. Vocational training and the acquisition of material skills is the predominant model of higher education nowadays. Conformity with disciplinary protocols and methodologies is highly valued, to the detriment of imagination and creativity.
5. What would you recommend to young graduates in international law? How should they think about imagination?
I would encourage them to live their lives “imaginatively”. I would recommend that they always take their imagination, legal or otherwise, with them all the time, regardless of what they end up doing for a living. Imagination is not the opposite of “real”, and it’s not synonymous with fictitious or non-existent. It is a powerful instrument to see through and beyond reality, or – as Robert Musil aptly put it – to widen the range of options and to keep a sense of possibility. Michelangelo is supposed to have said: “I saw an angel in the marble, and I carved it until I set it free”. That’s how one should think about imagination!