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1 Amsterdam Center for International Law University of Amsterdam RESEARCH PAPER SERIES ACIL Research Paper The Digitalization of the Assembly Line of Knowledge about Law: A Reinvention of the Confrontational Nature of Legal Scholarship? Jean d Aspremont & Larissa van den Herik Amsterdam Center for International Law & Leiden University Cite as: ACIL Research Paper , available at and SSRN Amsterdam Center for International Law, University of Amsterdam

2 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW AW: A REINVENTION OF THE CONFRONTATIONAL NATURE OF LEGAL SCHOLARSHIP? Jean d Aspremont and Larissa van den Herik * This paper reflects upon the rise of new tools of production and dissemination of knowledge about law as well as their impact on the dynamics and the nature of the profession of legal scholar. Taking the contemporary international legal scholarship as a case-study, it discusses the potentially dramatic changes brought about by the new media of communication, not only with respect to the configuration of the assembly line of knowledge about law in the 21 st century but also regarding the profession of legal academic as a whole. This paper starts by distinguishing modes of law-making and modes of knowledge-production with a view to showing that these two modes of production of authoritative statements share are not always following radically different dynamics (1). It then recalls that the production of knowledge about law has always been estranged from the State and rested on a competitive social process between professionals (2). The paper subsequently makes the point that knowledge-producing processes in international legal scholarship have been dramatically altered in the cyberage (3). Knowledge about international law is now created, selected and disseminated through previously unknown channels that cannot be influenced by the State. These mutations have required legal scholars to change how they envisage and construe their contribution to the production of knowledge and thus how they see their own profession. The paper finally formulates some concluding remarks about what it means for the discipline as a whole (4). * The authors are the former Editors-in-Chief of the Leiden Journal of International Law. They previous publications on this topic include: L. van den Herik, "LJIL in the Age of Cyberspace" (25 Leiden Journal of International Law ); J. d'aspremont "In Defense of the Hazardous Tool of Legal Blogging" ( as well of Wording in International Law (25 Leiden Journal of International Law (2012) 575). Jean d Aspremont is Professor of Public International Law at the University of Manchester and Larissa van den Herik is Professor of Public International Law at the University of Leiden. This working paper was presented at the Conference Stateless Law? The Future of the Discipline organized by the Faculty of Law and Quebec Research Centre of Private and Comparative Law, McGill University, Montreal on September Special thanks to Adrian Plevin for reviewing a previous draft.

3 D ASPREMONT & VAN DEN HERIK 1. Introduction: making law vs. producing knowledge about law Law-making processes and knowledge-production processes both constitute a human activity geared towards the production of authoritative statements within a certain community. The two are nonetheless intuitively distinguished. Indeed, knowledge is classically perceived as boiling down to established patterns of information accumulated on a clearly delineated question. 1 As a result of this understanding, knowledge about law amounts to established patterns of information accumulated on the question of the rules, dynamics, morals, and foundations of (a given area of) law. Knowledge about law thus presupposes the law pre-exists the acquisition of patterns of information about the law. There is always an assumption that these patterns of information are out there and need only be unearthed. As a result, law-making necessarily precedes the production of knowledge about law and the two must be distinguished. As far as the contemporary understanding of the phenomenon of law is concerned, and especially when it comes to international law, this modern understanding of knowledge is not only an oversimplification but has been almost unanimously dismissed. There is hardly any one to defend the idea of preconceptual legal data that scholars only need to unearth through observation. 2 Although legal scholars have also belatedly come to terms with the fact that conceptual categories shape one s experience of the world and hence influence the type of data which observation can yield. It now seems undisputed that establishing patterns of information about the law and the conceptual framework necessary for the identification of such patterns, although not constituting law-making stricto sensu, 3 not only contribute to the clarification and streamlining of (some aspects of the) law, 4 but are also constitutive of the law itself. In our eyes, such a finding is so uncontested that it does not warrant additional observations, not even with respect to the powers inherent in 1 Ph. Allott, Language, Method and the Nature of International Law, 45 BYBIL 79 (1971), at MacIntyre, Whose Justice? Which Rationality (London: Duckworth, 1988), at 333. See also the remarks of S. Singh, International Law as a Technical Discipline: Critical Perspectives on the Narrative Structure of a Theory, in Appendix 2 of J. d'aspremont, Formalism and the Sources of International Law (Oxford: OUP, 2013), pp Jean d Aspremont, Softness in International Law: A Self-serving Quest for New Legal Materials, 19 European Journal of International Law (2008), vol. 5, ; Andrea Bianchi, Une generation de communautaristes in Jouannet, Ruiz-Fabri and Sorel (eds.), Regards d une géneration sur le Droit International, , at 105; J. Kammerhofer, Law- Making by Scholarship? The Dark Side of 21st Century International Legal 'Methodology', in J. Crawford et al (eds), Selected Proceedings of the European Society of International Law, tome 3, Hart Publishing (forthcoming) available at 4 For some general thoughts on the contribution of legal scholars to the systematization of law, see N. MacCormick, Institutions of Law: An Essay in Legal Theory (OUP, Oxford, 2008) p. 6; See also, Ph. Allott, Language, Method and the Nature of International Law, 45 BYBIL 79 (1971), at 118; See also L. Mälksoo, The Science of International Law and the Concept of Politics. The Arguments and Lives of the International Law Professors at the University of Dorpat/Iurev/Tartu , 76 British Year Book of International Law (2005) 383, p

4 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW the constitutive tasks of legal scholars. 5 In our view, it is only necessary to highlight that the foregoing underpins the idea that law-making and knowledge production are modes of production of authoritative statements which are not always so far apart. Both are the result of the action of a whole series of professionals engaged in confrontational intercourses. Despite acknowledging the resemblance between these two modes of production of authoritative statements, this paper nonetheless zeroes in on the production of knowledge about law. The following section aims to further decipher the nature of the intercourses between the professionals who have made the production of knowledge about law the centre of their activities. 2. The production of knowledge about law as a confrontational social process It is argued here that theory and scholarship are inherently confrontational. 6 This reflects the realization that no theory can ever prevail and that no neutral criterion can allow the election one valid theory over all others. The legal scholarship, and particularly the international legal scholarship, epitomizes this finding wonderfully. This means that epistemic crises are constantly floating in the air of the legal scholarship that is irremediably caught in a disciplinary hamster wheel. 7 It is against this backdrop that this section starts by depicting a few elementary ideas about how knowledge is formed, exchanged and discussed in the contemporary international legal scholarship (2.1.) Drawing on these uncontested dynamics, it shows that the fora of our scholarly debates are multifold and ubiquitous and that debate is a constitutive element of the production of knowledge about law (2.2.). The ensuing section will discuss the extent to which these basic characteristics of the knowledge-production processes concerning law have been affected by the development of new means of communication Producing knowledge about law as a competitive peer-convincing process This section starts with a basic proposition. The production of knowledge in legal scholarship is a competitive social process. It is a competition about naming. 8 In law, naming is what produces knowledge. Whether this 5 See gen. Foucault, Discipline and Punish. With respect to international law, see e.g. F. Johns, Non-Legality in International Law - Unruly Law (CUP, 2013), esp A. MacIntyre, Epistemological crises, dramatic narrative, and the philosophy of science (1977) The Monist 453. On this aspect, see S. Singh, International Law as a Technical Discipline: Critical Perspectives on the Narrative Structure of a Theory, in Appendix 2 of J. d'aspremont, Formalism and the Sources of International Law (Oxford: OUP, 2013), pp ( Epistemic disagreement are key to any discipline: its sustenance, renewal and its fortitude ). 7 D. Kennedy, When Renewal Repeats: Thinking Against the Box (2000) 32 New York University Journal of International Law and Politics 335, at For further insights, see J. d Aspremont, Wording in International Law, 25 Leiden Journal of International Law (2012)

5 D ASPREMONT & VAN DEN HERIK is sufficient to classify legal scholarship as a science is a question that has received varying answers, 9 and one that we do not need to address here. 10 What does need highlighting is that the idea that knowledge production is the result of a competitive social process is no longer contested. 11 Evolution of information into knowledge is a social process. 12 It seems widely recognized that knowledge is produced by power-relations between professionals. 13 Indeed, knowledge production hinges on the persuasiveness of the argument and thus on how one s argument is received by the other members of the professional community. In that sense, production of knowledge boils down to a process to secure argumentative authority among one s peers, which feeds on the process of communication between the actors of that community. 14 This means that the competition in which legal scholars are engaged, and within which they are fighting with words, is a struggle for the power to produce knowledge. This is what one of us has called the wordfare in legal scholarship. 15 The production of knowledge in the specific epistemic community of international law is no different. The knowledge produced by naming is the result of the confrontation between international legal scholars and judges, themselves divided into different subgroups driven by divergent agendas. 16 In this struggle, persuasiveness and semantic authority are contingent upon a great variety of considerations. Credentials, reputation, place of publication, affiliation, repetition, proliferation, intense dissemination, footnoting, peer-referencing, timing of production, and linguistic aptitudes are usually among the parameters that determine whether an argument gains authority (and thus generates knowledge) or evanesces. Although probabilities show that semantic authority and persuasiveness can be more easily secured through massive scholarly production and systematic dissemination in top-tiered platforms of distribution, it remains difficult to predict which idea will eventually survive 9 See the famous argument by Karl Popper according to which the falsifiability of a theory is what made it a scientific theory (meaning it can be tested through data and experiment). The rest is meta-physical. According to that criticism, law can hardly qualify as a science. See, generally, K. Popper, The Logic of Scientific Discovery (2002). 10 The argument can be made that the rhetoric of scientificity reflects the competition about apportioning weight among the various knowledge produced in the society. As argued by M. Hesselink, calling the production of a certain knowledge science is a political decision. There is no compelling argument about why a certain research question should be more scientific than another; see M. Hesselink, A European Legal Science?, Centre for the Study of European Contract Law Working Paper Series, No. 2008/02, at B. Latour, Science in Action (1987). 12 See Stanley Fish. 13 Bourdieu, P. Bourdieu: The Force of Law: Toward a Sociology of the Juridical Field (1987) 38 Hasting Law Journal , at See B. Latour, Science in Action (Harvard University Press, 1987), at 40 ( You may have written a paper that settles a fierce controversy once and for all, but if reader ignore it, it cannot be turned into a fact; it simply cannot. You may protest against the injustice; you may treasure the certitude of being right in your inner heart; but it will never go further than your inner heart; you will never go further in certitude without the help of others. Fact construction is so much a collective process that an isolated person builds only dreams, claims and feelings, not facts ). 15 J. d Aspremont, Wording in International Law, 25 Leiden Journal of International Law (2012) L. V. Prott, Argumentation in International Law, (1991) 5 Argumentation 299, at 299 ( Persuasive discourse, or argumentation, has been a key technique in the development of international law ). 4

6 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW and which author will be accordingly empowered with persuasiveness and semantic authority. That means that the outcome of the struggle is uncertain and open-ended. In order to avoid any misunderstanding, it should be made clear that the elementary finding made above falls short of elevating persuasiveness and semantic authority into the determinant of legality, for that would lead to a total rejection of the internal point of view. 17 Acknowledging the adversarial formation of persuasiveness and semantic authority does not necessarily entail an abandonment of internal determinants of legality. 18 Securing persuasiveness and semantic authority lies as much in the fluctuating balance of powers of the international legal scholarship as in the internal consistency of the argument. It should also be noted that the social process of knowledge-production does not take place in the absence of structure. Firstly, for such confrontations to simply unfold, interpretative communities need to create their own stability. Short of stability, confrontations among scholars became void exercises of talking beyond the point where the ideas that are voiced become incommensurable. The necessary stability for exchange to take place and knowledge to be produced does not come from texts that are debated but from the community itself that gives itself marks only recognizable by its members. 19 Second, the struggle for semantic authority and persuasiveness in legal scholarship unfolds in a strongly organized and hierarchical semantic and social system that is far from egalitarian. There are hierarchies that are rarely acknowledged as such, but that fundamentally impinge on how the competition for the production of knowledge is carried out. 20 It is not the place to discuss these (super)structures that informs the social processes of knowledgeproduction. What matters, rather, is to zero in on one particular feature of the production of knowledge about international law. This is the object of the next sub-section The deliberative character of knowledge-production in international law In contemporary legal scholarship, debate is central to knowledgeproduction. Indeed, in today s epistemic community of international law, differences of opinions are no longer stifled or concealed but consciously 17 For a total rejection of internal determinant of legality, see Friedrich Kratochwil, according to whom legality manifests the persuasiveness of a form of argument and is a quality bestowed on rules by virtue of a given reasoning by a epistemic community trained in that legal reasoning; F. Kratochwil, Is International Law Proper Law?, (1983) 69 Archiv fur Rechts und Sozial Philosophie For an attempt to preserve internal determinants of legality while acknowledging the role of external dynamics, see J. d Aspremont, Formalism and the Sources of International Law (2011). 19 Stanley Fish, Is there a text in this class? Harvard University Press, 1980, pp and Customary international law and non-formal sources of law offer much more room for projections of power. On this aspect, see J. d Aspremont, Formalism and the Sources of International Law, at 151 4,

7 D ASPREMONT & VAN DEN HERIK unearthed. Debating and the culture of the critique that comes along with it is now an integral part of the activity of being an international legal scholar. Debate has become an essential component of the production of legal thoughts. Ideas are no longer mulled over for years in an often dusty and messy isolated study and kept secret until the day of their solemn revelation through publication in a top-tiered international law journal. While still being the product of a long individual cerebral effort, ideas are now shared, tested and further refined through peer-to-peer experimentation at an earlier stage of the scholarly thought-making process. Legal scholars of the 21 st century are faithful to the Socratic virtues of the exchange of ideas, now seen as instrumental in the mutual development and sharpening of legal thinking as a whole. Scholarly debates are also less formal. Lack of seniority no longer bars access to the experts debate and the implicit hierarchies of the profession have ceased to constitute compelling barriers to the expression of disagreement. Elevating oneself into an authorized interpreter of international law and thus stepping into the competition for the production of knowledge is of course not a universal entitlement. However, the conditions of access to the scene of the competition are nowhere formally defined and there is, as such, no formal rule prescribing the criteria of eligibility to be an authorized interpreter. This is particularly true with respect to the international legal scholarship which, at least in its non-domestic and international dimension, is not a formally protected profession, whose access is expressly made dependent on formal qualification certified by a given degree. 21 Rather, it is the social field of international law that has generated its own criteria of membership. This section is not the place to discuss the criteria of accession to the social process of knowledge-production. 22 We will briefly revert to this question when measuring the impact of the cyber-age on the participation to the production of knowledge in international law in section For now, it is more interesting and relevant to note that the criteria of accession to the argumentative arena where knowledge is produced ought to be distinguished from the criteria of participation in the competition about knowledge-production. Indeed, once a member of the latter community, there are also rules to be abided by to partake in the competition for the production of knowledge. The entitlement to access the argumentative arena comes with obligations pertaining to the way in which the semantic hostilities are carried out. Any member of the community ought to accept some communicative conventions. Such conventions pertain to both writing and oral argumentation. The clearest example is the necessity to systematically refer to the sources that one has relied upon in the operation of the production of knowledge. Likewise, one needs to decorate one s argument with adequate references to peers to convey the impression that he or she has a sufficient grasp of the existing state of the debate in which the contribution concerned is anchored. These 21 In national constituencies, access to the domestic zone of the international argumentative arena is sometimes restricted by occasionally backward or obsolete formal prerequisites. 22 This has been done elsewhere. 23 Cfr infra 4. 6

8 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW communicative requirements may of course vary according to geographical criteria as well as the social and institutional position of the interpreter. For instance, it is well known that the referencing is much more systematically practiced, organized, and overseen in the American tradition. Likewise, for one who has reached a certain level of seniority or a certain age writing a piece without bothering to refer to anyone else or not making a single footnote is more socially acceptable. Such communicative protocols are sometimes ludicrous or nonsensical. Their absurdity occasionally spawns some unease within the social field of international law. 24 Yet, they usually enjoy sufficient social acceptance within the community of international legal scholars to be perpetuated across generations. Anyone wishing to step into the interpretative fray is expected to abide by these social conventions. The deliberative character of knowledge-production in law is thus not unfettered. Rather, it is constrained by a myriad of social structures that directly inform not only how knowledge is produced, but also the content of the knowledge that is generated. This basic depiction of the social process of knowledge-production in law is extremely rudimentary. Yet, it suffices to demonstrate the type of revolution that the cyber-age and the new modes of communication have brought about. This is the object of the next section. 3. Changing structural dynamics in the statelessness of the production of knowledge about international law: the cyber-age Most the foregoing is probably uncontroversial: legal scholarship is confrontational, validation of knowledge is social and legal scholars are engaged in a deliberative competition for the production of knowledge about law. The international legal scholarship epitomizes this construction well. What matters now to explore is the extent to which new communicative media impinge on this process. Surely, the present age is not distinctive in having a strong sense of its own uniqueness 25. Yet, it does not seem to us exaggerated to claim that the cyber-age has led to unprecedented and sometimes unexpected changes in the structure and the dynamics of knowledge-production in international law. This does not mean, however, that the nature of the intercourses by which knowledge about law is produced has radically been altered. It may well be, as discussed below, that the cyber-age has simply reinforced the confrontational character of knowledge-production. This section starts by depicting some of the main changes witnessed in the knowledge-production processes about international law (3.1.) before critically reflecting upon their impact on the public good associated with scholarly publishing (3.2.) and the specific techniques of knowledge production about law (3.3.). 24 See F. Rodell, Goodbye to Law Reviews, (1936) 23 VLR 38; F. Rodell, Goodbye to Law Reviews Revisited, (1962) 48 VLR Ph. Allott, Language, Method and the Nature of International Law, 45 BYBIL 79 (1971)

9 D ASPREMONT & VAN DEN HERIK 3.1. Digitalized confrontation and the cyber-war about knowledge It is argued here that new modes (and modalities) of knowledgeproduction have generated a major revolution on the configuration of the quality control and dissemination-related processes of the entire profession. As a result of the cyber-age, the profession is witnessing the emergence of a new division of tasks between authors, peer-reviewed journals, publishers, expert blogging, and open-access databases, thereby causing a major overhaul of the profession. In describing this new configuration, this last section zeroes in on the quality-control role played by legal scholars towards one another. As was argued in section 2 above, producing knowledge about law should primarily be seen as a peer-convincing process. Knowledge is produced when information that has been generated as a result of research is disseminated and accepted within the interpretative community concerned. To be accepted by the interpretative community concerned, the information ought to be received and validated. Validation hinges on the persuasiveness of the argument, description, or analysis. Persuasiveness, in turn, will be determined by the perceived quality of the demonstration or presentation. In our view, the perception of quality that accompanies information about international law is determinative of its persuasiveness and thus its validation as knowledge. This explains why quality control in our profession is the linchpin of knowledge- production about international law. Considering the paramount role of quality control in the constitution of knowledge about law, this section formulates some critical suggestions as to the functioning of the profession with respect to quality control of the information that is distributed and thus the knowledge produced in international law. Taking into account the central role of journals in the production of knowledge about law, the following paragraphs will focus on the role of law journals that have always assumed primary responsibility for quality control and thus played a crucial role in the social process of validation. In our view, quality control, whether carried out by virtue of peer-review or any other mechanisms, is at the heart (and constitutes a unique feature) of the structure of law journals which one of the main players in the social process of knowledge-validation. The following observations therefore briefly reflect on the changing role of law journals when it comes to quality control and the production of knowledge about law. They also formulate a few remarks on how the new media have impacted the access to the knowledge-production processes in international law. The argument made here is illustrated by new developments pertaining to publishers on-line scholarship, mainstream international law journals, expert s blogging, and open-access databases. We also assume that, in the next five years, law journals in the upper tier will remain central actors in the in the social process of knowledgevalidation and will continue to be at the front-line of quality control. This is why, in our view, the prime question which we need to tackle here is not 8

10 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW existential in nature but rather relational: how should law journals as established academic institutions and political actors relate and respond to innovative technologies, especially open access databases such as SSRN or the blogosphere? Such a concrete question calls for a more fundamental and foundational interrogation, which the following considerations cannot ignore: what are the transformative effects of the cyberspace on the culture, the dynamics, the methods of cognition, and the tools of communication of the international legal discipline? And what is the impact of these new tools on quality control and the production of knowledge in international law? The abovementioned questions call first for a few general considerations. The influence of blogs on international legal scholarship and the art of legal blogging have already been discussed on various occasions. 26 In the view of the authors of this paper, the relationship between journals and blogs can be a cordial and above all, a mutually beneficial one. It is our conviction that law journals cannot compete with blogs as information providers. Law journals are simply too slow to keep up with the rapid pace of developments in our accelerated world. Furthermore, even law journal s on-line versions are not as easily and openly accessible as blog websites. In terms of (crude) information distribution, law journals are rapidly outpaced by blogs. Yet, law journals can still complement blogs in offering in-depth studies that benefit of the hindsight that is, per se, lacking in the blogosphere. In that sense, the two media can be construed as offering distinct services and meeting different needs. Blogs are the new media of frontier and immediate knowledge, of direct and open accessibility. They can be used by scholars to keep up to date in a whirling and sometimes daunting storm of legal developments. In contrast, peer-reviewed law journals enjoy the benefit of distance inherent in the time required for quality control and production. Their format as well as the contingent constraints for their elaboration offer what is needed for human analytical thinking and reflecting processes: time and distance. Accordingly, there is room for a new division of labour between law journals and new platforms of information such as blogs. This is informed by the fact that thoroughness rather than speed characterizes law journals contribution to the academic debate and to scientific research. In a complementary alliance, blogs offer rapid dissemination of information, whereas law journals retain a responsibility to produce analytical thinking. This is one of the major changes brought about by the cyber-age in knowledgeproduction processes in law. This being said, even if one accepts such a division of labour, it does not mean that the role of law journals remains unaffected by contemporary developments of the cyberspace, and especially blogs. One of the most central questions that professionals need to reflect upon in the years to come is whether informative and descriptive commentaries whether on cases or current legal developments should not be left to platforms like 26 E.g., J. d Aspremont, In Defense of the Hazardous Tool of Legal Blogging, EJIL:Talk, 6 January and B. Leiter, Why blogs are bad for legal scholarship, 116 The Yale Law Journal Pocket Part (2006), 9

11 D ASPREMONT & VAN DEN HERIK blogs. In other words, one of the first questions which the discipline, confronted with the new parameters of the cyber-age, should engage with is whether law journals should gradually cede the function of publishing descriptive case notes to their virtual counterparts. This is a question that the profession should reflect upon in the context of the new cyberdynamics of the knowledge production in law. The other central question that the academic community should engage with is the relation between law journals and open source databases, SSRN being so far the most dominant one. How should traditional law journals best react to the open source revolution? How to align the interests of publishing houses, editors, authors and the broader academic community? These questions may prove even more challenging than the interaction between legal blogging and traditional peer-reviewed law-journals. It is our opinion that professionals need to initiate a reflection on a new, common position tailored to the contemporary needs of the discipline and not aligned to the dynamics dating to the pre-cyber-age. The wide range of possible answer to these questions, however, is in our view contingent on the perception which the profession has of the function of journals and of itself. More particularly, the profession's varying views on the public good of academic publishing informs how the abovementioned questions are approached. This necessitates a few additional remarks The public good in academic publishing The digitalization of the wordfare 27 among scholars has dramatically impinged on the public good that is often associated with the dissemination of knowledge about law. There seems to be unanimity that academic publishing serves the public good. Indeed, academic publishing is almost unanimously elevated into a lofty and noble activity performed in the interest, if not of the society as a whole, at least of the professional community concerned. It is the idea as well as the future of the public good projected on academic publishing in international law that the following considerations focus and critically reflect on. In focusing on the public good of academic publishing, we do not ignore the externalities thereof. Nobody can dispute that academic publishing generates vast amounts of carbon dioxide by virtue of production, shipping or even online access, 28 exacerbates egos of authors, leads to over-commitment of all stakeholders whether authors, reviewers, editors or publishers and contributes to the proliferation of legal thinking, 29 which, in social sciences, can be extremely harmful for the discipline as a whole. Yet, this is not the 27 J. d Aspremont, Wording in International Law, 25 Leiden Journal of International Law (2012) On the unsettling carbon footprints of data centres, see J. Glanz, Power, Pollution and the Internet, New York Times, 22 September On this idea of proliferation of international legal thinking, see J. d Aspremont, Softness in International Law : A Rejoinder to Tony D Amato, 20 European Journal of International Law

12 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW topic of the following observations, which instead explore the public good possibly associated with academic publishing. It goes without saying that perceptions of the public good of academic publishing are extremely diverse and aplenty, if not contradictory. Indeed, every member of the epistemic community of international law has their own take on what type(s) of public good academic publishing supposedly serves. In our eyes, the primary public good of academic publishing and thus the main mitigating parameter of the abovementioned externalities lies in the crystallization of knowledge about law that it contributes to make possible. More specifically, by selecting, ensuring (a given) quality, marrying their name and reputation to certain authors and themes and disseminating scholarly works, law journals permit the information and opinions of sufficient quality to be disseminated and subsequently validated as legal knowledge within a given community. We thus believe that in the intricate social process from information to knowledge, law journals constitute an essential medium 30 and that the public good of law journals can be distilled to their contribution to the crystallization of information and opinions in legal knowledge. Stated alternatively, law journals are constitutive parts of the assembly line for the validation as knowledge of information and opinions about international law The two pillars of the assembly line of knowledge about international law In our view, the alchemy necessary to allow the abovementioned crystallizing effect to take place requires a few carefully fine-tuned operations which are briefly mentioned here. Two particular techniques must be found on the assembly line for it to generate the crystallization effect necessary for knowledge-production. These techniques primarily pertain to quality and order. A few words need to be said about each of these two central features of law journals. Summarily, it is worth recalling that quality and order are, respectively, the cause and the consequence of one inherent feature of law journals: selectiveness. Indeed, even if the proliferation of law journals whether paper or electronic has significantly eased access to professional publication, law journals select the information and opinions they disseminate. This is hardly surprising. Given their current format, journals cannot materially publish everything. Even for exclusively on-line journals, selectiveness is a central feature short of which they would simply be no different than databases. It is true that selectiveness is a feature which law journals share with blogs, although, given their nature and assigned functions, the latter have usually been less selective than law journals. Understanding the selectiveness by law journals, however, is key in understanding how they contribute to the crystallization of knowledge about international law. Indeed, the yardstick for selection (quality) and the way in which selection takes form (order) are highly determinative of the crystallization effect that will transform opinion and information into legal knowledge. 30 On the concept of knowledge-formation in international law see, J. d Aspremont, Wording in International Law 25 Leiden Journal of International Law (2012)

13 D ASPREMONT & VAN DEN HERIK Quality-control and certification The most central technique that allows law journals to contribute to the crystallization of information and opinions in knowledge is the certification of quality of the scholarship that is published. Needless to say that quality is not an objective finding. It remains contingent on those criteria which are in abstracto elevated into yardsticks of quality as well as the way they are applied in concreto by those to whom quality evaluation is delegated. The quality indicators to which journals may resort can vary dramatically. Practices in academic publishing differ enormously between journals but also along cultural and geographical lines. For instance, quality control is strictly defined in continental Europe and Asia and will usually take the form of peer-review. In contrast, in the United States, quality control is more loosely defined alternative criteria like sources, originality and impact being commonly resorted to by those in charge of the law journals. 31 It is certainly not the place to discuss the value and merit of each of these quality indicators and the practices of quality-evaluation. What deserves highlighting here is that, whatever the quality-indicators they embrace, law journals are (seeing themselves as) endowed with the responsibility of tracing and certifying quality. The reason thereof is that quality is a constitutive element of knowledge formation. If the quality of the scholarly opinions and information disseminated by journals could not be certified, such scholarly output would have little chance to crystallize someday in any form of knowledge. Order We argue that the gargantuan flow of information and opinions about law cannot be digested and made sense of by individual the members of the professional community of international law. It is true that law journals contribute to the deluge caused by prolific scholarly production. Still, in our view, they also help structure these floods. In particular, they frame and set a pace for the stream of opinions and information that are constantly produced about international law. By giving order to the production of information and opinions about international law, journals enhance the possibility of such scholarly work being received and validated by peers as legal knowledge. The attention of those members of the professional community is spared and only drawn to those scholarly opinions and information that the editors of the journal deem worthy of their attention. This, in turn, increases the chance of peer-reception and peer-validation, indispensible for such information and opinions to crystallize in legal knowledge. 4. Digitalizing the assembly line: : pacifying the social process of validation? Needless to say, quality control (and certification) as well as ordering and the way they are practiced by law journals are being seriously affected by 31 It is important to note that very different standards are applied with respect to the publication of monographs where quality-indicators resemble those used in Europe. 12

14 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW the rise of new actors in academic publishing. 32 Indeed, academic publishing is undergoing a pluralization as a result of new technologies and new actors having gained a foothold therein. Interestingly, the abovementioned two features of law journals are precisely those aspects by virtue of which these new actors distinguish themselves from law journals. Other media like blogs and open access databases operate on the basis of methods of dissemination radically more liberal when it comes to order and quality. While it is a foregone conclusion that the era of paper journals is coming to an end, it remains open to question whether (someday exclusively online) law journals will be able to preserve the two abovementioned distinctive features. Vindicating such two techniques is vital if law journals want to remain a central medium in the assembly line of knowledgeproduction. It should be made clear, however, that the existence of law journals should not be vindicated just for the mere sake of law journals themselves. Vindicating these two features of academic publishing should thus not be construed as a (dogmatic) defense of law journals, but as a plea for the preservation of the two central features--quality-control and order as indispensable elements of the public good. The ebbing away of qualitycontrol and certification as well as order would not only lead to a dilution of law journals but it would also severely erode the crystalizing effect necessary for knowledge-production. While not defending law journals per se, we do not see, for the time being, any possible replacement parts in the assembly line of knowledge production. In our view, law journals have not yet become a replaceable part in that line. Beyond a horizon of five years, however, there is much likelihood that the sequential organization of the assembly line, the various parts thereof, or their respective motions will undergo sweeping upheaval. In particular, the techniques of quality control and order may with time well be bestowed upon other actors. Yet, such a shift will not, in our view, bring about any upheaval of the foundations and structural configuration of the assembly line of knowledge about law. Even if it were one day bestowed upon actors other than law journals, the responsibility currently played by law journals would still need to be performed. Changes of actors, swaps of responsibilities, speed and modes of dissemination will not alter the social character of the knowledge-production processes. Rather, it will make it more transparent by magnifying the inextricable quest for persuasiveness and social validation at the heart of scholarly activities. 5. Concluding remarks: the five riddles of the production of knowledge in the future Our belief that digitalization of the wordfare in legal scholarship, whist bringing about a revolution in knowledge-production process, will not alter the social and confrontational nature of that process, does certainly not 32 On these challenges, see L. van den Herik, LJIL in the Age of Cyberspace, 25 Leiden Journal of International Law (2012) 1 13

15 D ASPREMONT & VAN DEN HERIK clinch all the debates raised in the previous paragraph. On the contrary, our assertion seems to raise more questions than the answers it provides. This is why this paper will end with a series of five considerations. Each is phrased in the form of questions meant to invite all the stakeholders in the business of knowledge-production and academic publishing to reflect upon what we deem to be five central questions for the public good of knowledge production of tomorrow. In our view, answers to these questions will determine the design and nomenclature of the assembly line of knowledge-production in law in the decades to come. 1. Quality control in the form of peer-review as we usually organize it in Europe is free of charge in our scientific family. Indeed, reviewers are not remunerated for evaluating scholarly works of others. Quality-evaluation thus depends on the sense of responsibility and civism of the members of the epistemic community of law. Cost incurred by journals instead relate to their secretariat and their website. In this context, the question of the affiliation of journals with major publishing houses necessarily arises for both publishers and journals. Given the multiplication of open-access databases and the skyrocketing amount of articles uploaded thereon by authors themselves, will publishers still find it sufficiently profitable to publish law journals in the future? Conversely, will law journals still find an interest in being affiliated (and subject to the rules of) a major publisher if they can finance their overhead costs through other channels? If not, would emancipation from publishers actually lead to greater independence or rather to a mutated form of subjection to faculty funds and decision-making? 2. While the question of the kinship between law journals and publishers will come to the fore, that of the suitability of the creation of new journals will too. For instance, just in the professional community of international law, there is not a single year that does not witness the creation of a new journal. Despite the uncontested emergence of new areas of research both from an empirical and epistemological standpoint, the creation of new often ultra-specialized and narrowly focused journals supposedly serving the public good of the epistemic community of international law raises two fundamental questions. First, does the creation of new journals not contribute to the proliferation of (and repetitions in) international legal thinking which, as was said, undermine the assembly line of knowledge-production? Second, do law journals of a general ambit not continue to offer an appropriate platform for publication of specialized work and contribute more usefully to the crystallization of information and opinion in knowledge? 3. Because quality control operates on a voluntary basis and hinges on the civic obligations of all members of the epistemic community, securing reviewers has become an uphill battle. Peer- 14

16 THE DIGITALIZATION OF THE ASSEMBLY LINE OF KNOWLEDGE ABOUT LAW review has rightly been said to be in crisis. 33 That difficulty is growing in proportion with the enormous need for peer-evaluation in our current profession. Indeed, as a result of the proliferation of law journals as well as the financing of research through Statesupported foundation of peer-evaluated research projects, international legal scholars are constantly solicited to evaluate the work of one another. In these circumstances, the individual feelings of responsibility no longer suffice to entice members of that community to contribute to the evaluation of the works of peers. Additional incitements are necessary to convince to members of the community to engage in peer-evaluation and to do so seriously. In this context, will we be forced to move towards paid-evaluation model like in nature sciences? Will we be in need of discarding the current anonymity paradigm of peer review processes and disclose the names of reviewers for each volume of journals as a token of recognition for their work? 4. Quality control does not necessary mean peer-review process. In the light of the abovementioned crisis of the peer review model and the fact that peer-review is not a panacea for peer review processes are often politically loaded the question of the resort to other quality indicators will arise more compellingly. Will we be tempted to embrace other quality indicators like impact 34 in the form of citation indexes or downloads or footnoting and sources? 5. In the same vein, going-on-line does not necessarily mean turning to gratuity and open-access. Law journals can chose to become exclusively on-line publications while still limiting access to paying (individual or institutional) subscribers. Restricted access leaves questions to be asked from the vantage point of public finances. As most authors and peer-reviewers in this profession are paid by virtue of public funding, claims have been made that their scholarly output should be openly accessible and in the public domain. Since public institutions are also most often those paying the access to the databases or financing open-access, it seems that public institutions pay twice. The current model thus shows a few (mostly private) actors benefiting from repeated and multilayered public-support. In the context of strained public finances, the question of open access will grow more pressing and with it the need to revisit the whole business model of academic publishing. If this were the case, will we be able to preserve the linchpins of the assembly line of knowledge-production discussed here? 33 On the crisis of peer-review, see J. Weiler, Editorial (Peer Review in Crisis; From the Editor s Mail Box: The Perils of Publishing Living under a False Title; The European Law Institute; In this Issue), 23 European Journal of International Law 2: See the remarks of J. Weiler, Editorial (EJIL The Beginning of an Existential Debate 23 European Journal of International Law (2012)