International Law and the Poststructuralist Challenge

Leiden Journal of International Law

Volumn 19, Issue 3, 2006, Pages 799-827

  Rasulov, Akbar ^a  

^a UNIVERSITY OF GLASGOW   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 85010088367     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003591     Document Type: Review

References (65)

1. U. Eco, Faith in Fakes” Travels in Hyperreality (1998), 221.
2. Faith in Fakes” Travels in Hyperreality.
3. David Kennedy, International Legal Structures (1987), 195-8.
4. That they are at least intended to belong in the same category seems to be beyond doubt” both books are explicitly identified as contributions to the same line of juristic debate. Critical Beings is part of the ‘Law, Justice and Power’ series edited by Austin Sarat. Law, Justice, and Power, as the title indicates, is directly inspired by the same series. See Law, Justice, and Power, 17.
5. Critical Beings consists of 11 essays organized in three parts-‘introversion’, ‘extraversion’, and ‘formation’-and an introduction. The first part focuses on the relationship between the concepts of nationhood and refugeehoodandthecorrespondinglegal regimes.Thesecondpartattemptsto set theframeworkfor thestudy of the universal dimension of the international and its relationship with the particularity of nationhood. The third part seeks to review the variousways inwhich the new hybrid subjects whose subjectivity is regularly overlooked in the traditional accounts of the global juridical order are constituted.
6. Law, Justice, and Power consists of an introduction and 14 essays organized in six parts” ‘the “new world order” between state sovereignty and human rights’, ‘colonialism and the globalization of western law’, ‘legal pluralism and beyond’, ‘new ethical and philosophical turns in legal theory’, ‘the “inhuman” dimension of law” poststructuralist assessments’, and ‘psychoanalysis” justice outside the “limits” of the law’. Given the incredible diversity of the essays, it may havemade sense to divide the volume even further.
7. Further onDerrida's take on binarisms, see G. Gutting, French Philosophy in the Twentieth Century (2001), 293-4.
8. Duncan Kennedy, ‘The Structure of Blackstone's Commentaries’, (1979) 28 Buffalo Law Review 205, 213.
9. M. Koskenniemi, ‘The Politics of International Law’, (1990) 1 EJIL 4, 8.
10. See further David Kennedy, ‘A New World Order” Yesterday, Today, and Tomorrow’, (1994) 4 Transnational Law and Contemporary Problems 329, 358-61.
11. For a good introductory overview of poststructuralism, see further C. Belsey, Poststructuralism” A Very Short Introduction (2002). The irony here, of course, is that the poststructuralist ‘classics’ themselves (Derrida, Lacan, etc.) seem to have thought it quite revolting to fetishize any modality of action or knowledge and to construct on this basis any sort of canon or dogma. Then again,maybe that is the reasonwhy they are called the classics.Marx, after all, was not aMarxist either.
12. I was not sure at the beginning whether it was fair to include both books under the same heading of poststructuralist scholarship. In the end, I decided that it was, on the understanding that poststructuralism, like all other intellectual traditions, has different faces and manifestations. Thus,where Critical Beings seems to come across as a rather conscious attempt to provide a poststructuralist exegesis of law and globalization, Law, Justice, and Power appears to bemore of an (unintended?) illustration of what such exegesesmay become if the logic of poststructuralization is left to take shape on its own. Moreover, while the poststructuralist aspirations of Critical Beings are clearly detectable at almost every level of its substantive dimension, from the concrete theses advanced in the individual essays to the general message of the book as a whole-but not, interestingly, in the form of its internal organization, which continues to remain more or less orthodox, or its take on its own imputed subjectivity (more on this later)-the individual essays comprising Law, Justice, and Power do not, as a rule, appear self-consciously poststructuralist, either in aspiration or in execution, even though the book as a whole exhibits all the classic symptoms of poststructuralization” the text-the materiality comprised by the 14 essays-incessantly turns against its own self-image, outlined in the introductory section; the metanarrativist aspirations of the editor are honoured far more in breach than in observance; the substantive contents of the writing constantly break free from the formal structures imposed on it by the authors; themultiplicity of interpretations invited by the conjunction ofmutually not comparable essays repeatedly evokes the image of a semantic inundation, and so forth.
13. David Kennedy, ‘When Renewal Repeats Itself” Thinking against the Box’, (2000) 32 New York University Journal of International Law and Politics 335, 423.
14. E. Laclau, Emancipation(s) (1996), 77-8.
15. Indeed, as Koskenniemi correctly observes, ‘if the law is indeterminate, then there is nothing that may obstruct or realize any purposes’ (Law, Justice, and Power, 60).
16. There is a powerful tradition of postcolonial criticism resisting unbridled enthusiasm for anti-statism. See, e.g., Sundhya Pahuja's essay in Critical Beings, 161-79. See also B. S. Chimni, ‘International Institutions Today” an Imperial Global State in theMaking’, (2004) 15 EJIL 1.
17. F. Jameson, The Prison-House of Language (1972), 182.
18. G. Luka’ cs, History and Class Consciousness (1990), 270.
19. There are, however, some occasional exceptions. See, e.g., Sundhya Pahuja's essay in Critical Beings, 161-79.
20. See B. Cardozo, The Growth of the Law (1924), 24. Cf. K. Llewellyn, ‘A Realistic Jurisprudence-The Next Step’, (1930) 30 Columbia Law Review 431, 432.
21. Cf. Jameson, ‘if the law is indeterminate, then there is nothing that may obstruct or realize any purposes’ note 17, at 187.
22. See, e.g.,W. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (1919).
23. Further on this see A. J. Greimas and F. Rastier, ‘The Interaction of Semiotic Constraints’, (1968) 41 Yale French Studies 86; Jameson, Fundamental Legal Conceptions as Applied in Judicial Reasoning note 17, 163-8. See also generally A.-J. Greimas, Sémantique Structurale (1966).
24. (1931) PCIJ, Series A/B, No. 41.
25. On diffé rance, see further J. Derrida,Margins of Philosophy (1982), 1-28. Cf. Jameson, Fundamental Legal Conceptions as Applied in Judicial Reasoning note 17, at 173-86. See also Sarah Kyambi's essay in Critical Beings at 19-36.
26. SeeM. Koskenniemi, From Apology to Utopia” The Structure of International Legal Argument (1989).
27. See Kennedy, Fundamental Legal Conceptions as Applied in Judicial Reasoning note 3.
28. Cf. P. Allott, The Health of Nations” Society and Law beyond the State (2002).
29. Cf. Laclau and Mouffe, Fundamental Legal Conceptions as Applied in Judicial Reasoning note 27, at xiii” ‘This relation, by which a certain particularity assumes the representation of a universality entirely incommensurable with it, is what we call a hegemonic relation.’
30. The current patterns of hegemonism practiced in the international arena incline in this direction. SeeMartti Koskenniemi's essay in Law, Justice, and Power, 46-69, and Sundhya Pahuja's essay in Critical Beings, 161-79.
31. See L. Goldmann, The Hidden God (1964).
32. Cf. Art. 6 of the Universal Declaration of Human Rights” ‘Everyone has the right to recognition everywhere as a person before the law.’
33. SeeM. Foucault, SocietyMust Be Defended (2003), 59-62, 80-2, 254-60.
34. ‘Everyone has the right to recognition everywhere as a person before the law.’., 80-1.
35. See, e.g., H. Koh, ‘Bringing InternationalLawHome’, (1998) 35Houston LawReview623; H.Koh, ‘Transnational Legal Process’, (1996) 75Nebraska Law Review 181; A.-M. Slaughter, ‘The RealNewWorldOrder’, (1997) 76 (5) Foreign Affairs 183.
36. T. Pratchett, Thief of Time (2001), 39.
37. Further on antinomianism, see Duncan Kennedy, ‘A Semiotics of Critique’, (2001) 22 Cardozo Law Review 1147, at 1158-69.
38. I am perfectly aware of Sarat's warning not to reify the legal profession or treat it as more of a unitary body than it really is (see A. Sarat, ‘The Profession versus the Public Interest” Reflections on Two Reifications’, (2002) 54 Stanford Law Review 1491), but on this occasion, I think, the generalization is warranted.
39. See R. Jennings, ‘ClosingAddress’, inC. Brö lmann et al. (eds.), Peoples andMinorities in International Law(1993), 341, 344.
40. Cf. Law, Justice, and Power, 2-4 (Cheng).
41. Duncan Kennedy, ‘The Stakes of Law, or Hale and Foucault!’, (1991) XV Legal Studies Forum 327, at 351-7.
42. ‘Everyone has the right to recognition everywhere as a person before the law.’., at 327.
43. See, e.g., F. Cohen, ‘Transcendental Nonsense and the Functional Approach’, (1935) Columbia Law Review 809; J. Frank, ‘Legal Thinking in Three Dimensions’, (1949) 1 Syracuse Law Review 9; L. Green, ‘The Duty Problem in Negligence Cases’, (1928) 28 Columbia Law Review 1014 and (1929) 29 Columbia Law Review 255; R. Hale, ‘Coercion and Distribution in a Supposedly Non-coercive State’, (1923) 38 Political Science Quarterly 470; Llewellyn, ‘Everyone has the right to recognition everywhere as a person before the law.’. note 21.
44. Cf. R. Cover, ‘Violence and theWord’, (1986) 95 Yale Law Journal 1601.
45. Cf. U. Bernitz et al., ‘Letter to the Editor’, Guardian, 7March 2003” ‘A decision to undertake military action in Iraq without proper Security Council authorization will seriously undermine the international rule of law. Of course, even with that authorization, serious questions would remain. A lawful war is not necessarily a just, prudent or humanitarian war.’ Cf. M. Craven et al., ‘We Are Teachers of International Law’, (2004), 17 LJIL 363, 370” ‘Aren't we reinforcing here the idea that justice is something you know, and furthermore knowledge to which we have privileged access, as opposed to something that gets defined and redefined in the crucible of social struggle?’
46. See J. Goldsmith and E. Posner, The Limits of International Law (2005).
47. For a telling account of this discovery, see, e.g., O. Schachter, ‘Dag Hammarskjö ld and the Relation of Law to Politics’, (1962) 56 AJIL 1.
48. For a brief review of this development, see, e.g., David Kennedy, ‘A New Stream of International Law Scholarship’, (1988) 7Wisconsin International Law Journal 1, 4-5 ('the post-war generation expanded the practice of international law by sacrificing its distinctive intellectual self-image and coherence').
49. See O. Holmes, ‘The Path of Law’, (1997) 110 Harvard Law Review 991, 1001.
50. M. Foucault, Power/Knowledge (1980), 85.
51. Or maybe I amjust over-reacting. For amore tempered reaction along the same lines to Agamben's writings on Guanta’ namo Bay, see F. Jones, ‘Guanta’ namo Bay and the Annihilation of the Exception’, (2005) 16 EJIL 613, 623-8.
52. David Kennedy, ‘Some Comments on Law and Postmodernism” A Symposium Response to Professor Jennifer Wicke’, (1991) 62 University of Colorado Law Review 475, 480-2.
53. Foucault, The Limits of International Law note 54, at 85.
54. U. Eco, The Name of the Rose (1983), 286.
55. See The Name of the Rose and infra notes 1, 3, 8-11, 13, 14, 16-18, 20, 24, 27, 28, 41, 52, 57, 62, 73.
56. See The Name of the Rose note 20.
57. See R. Barthes, ‘The Death of the Author’, in R. Barthes, ImageMusic Text (1977), 142.
58. Schlag, The Name of the Rose note 20, at 1671.
59. The Name of the Rose., at 1640, n. 25.
60. The Name of the Rose., at 1651.
61. The Name of the Rose., at 1653.
62. See, especially but not exclusively, the essays by Robert Gibbs, Sinkwan Cheng, and Robert Fenves.
63. Schlag, See, especially but not exclusively note 20, at 1637-9. Is the pull of the jurocentric aesthetics really so powerful? If it is, how does one ever write a book about law (which a leading publisher would agree to publish) and remain a deconstructionist?
64. F. Nietzsche, Twilight of the Idols and The Anti-Christ (2003), 54.
65. Eco, Twilight of the Idols and The Anti-Christ note 1, at 84.