Studying Race in International Law Scholarship Using a Social Science Approach

132 Pages Posted: 1 Mar 2021 Last revised: 25 May 2021

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law

Date Written: May 24, 2021

Abstract

In their introductory essay to this conference, Chilton, Ginsburg and Abebe argue in favor of a social science approach in part because as a scientific method, it sets aside normative commitments and privileges what they call positive inquiry. While they acknowledge that every scholar has certain normative priors, they argue the social science approach engages “in a positivist enterprise of trying to describe the world as it is, rather than how it should be.”

This essay takes up Chilton, Ginsburg and Abebe’s invitation to use a social science approach to establish or ascertain some facts about international law scholarship in the United States. Under that social science approach a research project involves identifying a specific question, developing hypothesis, using a research design to test that hypothesis based on some form of qualitative or quantitative data, and presenting conclusions while acknowledging the assumptions upon which they are based and the level of uncertainty associated with those results.

The specific research question that this essay seeks to answer is to what extent scholarship has addressed international law’s historical and continuing complicity in producing racial inequality and hierarchy including slavery, as well as the subjugation and domination of the peoples of the First Nations. I am also interested in the extent to which international law scholarship has provided space for scholars whose work resists the various types of racial domination that international law has been complicit in producing. I am particularly interested in establishing the extent to which international legal scholarship has been open to traditions that center race as an analytical category. Centering race as an analytical category is after all crucial move for reclaiming subjugated knowledges – such as those that uncover how and to what extent race shaped international law at various moments- that are not part of the mainstream international law canon. To answer this question, this essay uses the content published in American Journal of International Law (AJIL) since it was first published in 1907 to May 2021. It also uses the content published in its sister publication, AJIL Unbound since it was first published in 2014 to May 2021. The essay acknowledges the assumptions upon which this research question was selected and discloses its hypothesis. The essay then describes the research design used in analyzing the database of 7,535 documents in the print edition of AJIL and 571 documents in AJIL Unbound to answer this question. The results of the inquiry are then presented while acknowledging the limitations of its research design. The results indicate that the American Journal of International Law and its counterpart AJIL Unbound have seldom published essays examining race and international law.

The final section of the essay advances some potential explanations to account for the paucity of scholarship on race and international law over the 113-year history of the print edition of the journal and the 6-year history of its online companion.

I hypothesize that the exclusion of issues of race in one of the pages of the leading international law journal can be accounted for along four dimensions. First, that this absence is a reflection of the conscious exclusion of African Americans in the American Society of International Law in the first six decades of its existence as the 2020 Richardson Report found. Second, it is the result of the stringent scrutiny race scholarship in international law has faced in the AJIL and AJIL Unbound. Third, that the big or defining debates about international law in the United States have focused on issues other than race, and fourth that color-blindness has been the default view of American international law scholarship as represented in the journal.

Ultimately, the point of this essay is threefold. First, to show that the social science approach that Chilton, Ginsburg and Abebe advance can be useful to answer questions that critical scholars like myself are interested in. Second, that when this social science approach is applied to answer questions like the one pursued in this essay the distinction between the neutrality of the scientific methodology of this social scientific approach on the one hand, and the normativity of critical approaches that Chilton, Ginsburg and Abebe argue characterizes other approaches, on the other, falls apart. Third, this essay shows that there is still ample scope for more international law scholarship on race that needs to be taken up not only by scholars of color but by all scholars of international law.

Keywords: Race, International Law, Colonialism, American Journal of International Law, Unbound, Social Science Method

Suggested Citation

Gathii, James Thuo, Studying Race in International Law Scholarship Using a Social Science Approach (May 24, 2021). Chicago Journal of International Law, Vol. 22, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3793974

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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