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Article Excerpt
INTERNATIONAL LAW AND ITS OTHERS, EDITED BY ANNE ORFORD (CAMBRIDGE, UK: CAMBRIDGE UNIVERSITY PRESS, 2006) 434 PAGES. PRICE AU$199.00 (HARDCOVER) ISBN 9780521859493.
International Law and its Others is a pleasure to read, and a struggle to review. (1) In 're-viewing', one claims to be looking again at something earlier surveyed. And the authority to which a review essay lays claim seems to depend in part upon this unreported pre-reading--a pre-reading from which the reader of the review is always barred. A review essay also purports to recommend. In that sense, it looks forward: anticipating the reader's subsequent encounter with the reviewed text, or asking the reader to relive their prior reading of the same. Occasionally, a review will ask readers to swallow a book whole, but usually it will attempt to dismember and reassemble a book for the reader's ready consumption. Any allure of the offer of 'guidance' a review lays on this cutting board depends in part upon that clandestine pre-reading of which it boasts. Looking back while looking forward, a review essay whispers: 'I know something you may not know'.
What a review essay often claims to know is the wholeness of the book reviewed: its (partially secreted) 'meaning' and its 'proper' placement in a discipline. This is a hard claim to make at the best of times. It is a particularly difficult claim to make in this instance, when the book in question is comprised of 15 rich and challenging essays. Many of these, moreover, seem to be probing quite distinct accounts of 'international law', and quite divergent senses of its 'others'. (2) The 'reciprocal stating of the law' that Costas Douzinas identifies with the institution of the demos in classical democracy, often seems to break down here. (3) This book enacts no community. Readers looking for a definitive statement of a 'school of thought' should look elsewhere. Readers seeking experiences of international legal reading charged with 'a stimulating sense of danger', (4) and open to the risk of being baffled, disturbed and/or captivated, would do well to open this book.
I THE ORDER AND THE ADDRESS
Anne Orford's introductory essay announces International Law and its Others as 'part of a broader movement seeking to regenerate the exchange between international law and the humanities'. (5) This 'movement', she writes, seeks 'to restore the ability of international law to address' precisely 'what is at stake' when people turn to international law 'in today's political environment'. (6) Orford's is a compelling manifesto for an unruly bunch of writers, for whom the term 'movement' seems somewhat misplaced. And yet the contributors do share a concern to probe the many ways in which an 'other' to international law is 'figured, performed, inscribed and imagined in the discipline'. (7) Of far lesser sharing have movements been made.
Orford loses no time in heading off any expectation that the book will unleash a heart-rending tale of exclusion, ending in a redemptive embrace. International law's 'others' will not, she relates, be 'invited to speak within these pages, to give the perspective of the "native informant" on how the progress of international law should properly be measured' or to perform the role of 'an other of a law which imagines itself as international, even at time universal'. (8) The book's contributors 'take seriously' questions posed by the history of imperialism, Orford observes, and owe much to the scholarly tradition of its critical engagement. Yet, they also 'depart from, and at times challenge' that tradition. (9) One discerns this challenge in the persistence of the contributors' efforts to disavow or surpass the final term of a 'unique addressee'. (10)
For some contributors to this book, the task of 'interpreting the texts of law' absent such a unique addressee is the task of recording 'the presence of another's law' in international law's work of subject-making. (11) For that work, Douzinas' essay lays some fresh metaphysical ground. Taking up the 'dirty word' of sovereignty, Douzinas disputes the idea that sovereignty 'has lost its power' in the face of 'universalizing exigency'. (12) Rather, according to Douzinas, sovereignty has 'lost ... its ability to make sense' (13) in metaphysical terms or to 'set the ends of community'. (14) This loss impels Douzinas back into the metaphysical register to 'examine the kind of person and social bond' being instantiated by a 'virulently post-metaphysical' age. (15)
Working in that metaphysical register (a key out of favour in 'acoustic econom[ies]' of recent decades), (16) Douzinas' essay is committed to reopening a gap between the constative and performative dimensions of sovereignty: that is, between the said and the saying of sovereignty. (17) He works at this by developing a distinction between 'bare sovereignty' (or the infinite expressive process that is the self-constituting of a people) and 'theologico-political' sovereignty (or the 'someone or something ... [that] substitutes for the temporal process of becoming'). (18) It is, according to Douzinas, the 'rolling together' of these that permits an experience of a particular decision as an articulation of the universal and 'projects on community the figure of One'. (19) This, in turn, gives modern politics identity 'as domination, resistance and conflict' and 'valorizes individual desire only in accordance with a domination or subjection to the sovereign'. (20)
By re-inscribing a 'sense' to sovereignty in these terms, Douzinas stands opposed to the replacement of sovereignty by humanity or cosmopolitan sovereignty--principles that he associates with the instantiation of 'a bare and nihilistic justice'. (21) Instead, Douzinas would have us tend to the distance 'between particular and universal or between performance and statement', so as to cultivate the 'memory and possibility' that the claim of the sovereign (or the projection of the One) may fail. (22) It is in this separation that critique becomes possible, Douzinas writes, but also violence: no guarantee of benign openness is proffered here. (23) Far from evacuating foundations (as in the 'groundlessness' of humanity (24)), Douzinas works to reopen in them 'the remembrance or promise of absent value [rather than] absence simple': (25) recovering a sense of the 'fragility of communal construction' and its infinite remaking. (26)
For all its attentiveness to the performative, the constative bears down heavily in Douzinas' essay. Douzinas writes of the 'uncertainty' of the claim made by a sovereign voices And yet the words in which this uncertainty is recorded are so definitive and sweeping that they often sound like a 'closing down'. (28) Is there something about writing a succession of 'the law is' statements that often does this? Writing of the self-calling of community, for example, Douzinas observes, '[t]he speaking of the law gives community a voice (which is another word for decision or judgment)'. (29) This struck me as an odd equivalence. When decision is pronounced in the name of 'law', is that law necessarily (or even conceivably) thought as a unity ('a' voice)? If so, why does it seem so hard sometimes to settle the question of what a lawgiver's decision is, or was, on any contested claim, or even when and where the pertinent decision took place? Can the elusiveness of decision in law be written off as one more level of 'confus[ion]' calculated to 'conceal' and 'confound' the performative dimension of sovereignty? (30) Conversely, might the memorialisation of decision as so attributable not entail obfuscation of its unavoidability and its difficulty? (31) And how does this figuration of decision sit with Douzinas' further claim that processes of self-institution are 'infinite'? (32) Might not processes of decision be thought similarly: not only as a response to incalculability, but as an almost unavoidable articulation of the same? (33) That may be precisely Douzinas' point. Nonetheless, the performance of the essay seemed, at times, to work against its stated project. Or could it be that one needs to adopt the tone of a father if one would generate metaphysical grounds for relinquishing the 'desire for a Father or law-maker'? (34) Ian Duncanson's essay speaks to the desire for a law-maker in a very different tone. (35) Alongside the concept(s) of sovereignty on which international law has long fixated, Duncanson excavates a half-written precedent for 'explor[ing] ... the possibility of negotiating difference peacefully without Leviathan'. (36) From within the social and political annals of post-Glorious Revolution England, he draws out 'a conception of law without much vertical hierarchy or a sovereign'; (37) a 'normative order whose primacy does not depend on Benthamite principles'. (38) Recovering this sense of law's other incarnations from 18th century England could, Duncanson suggests, be 'fruitful' for an international law forever haunted by Benthamite derision. (39)
In Duncanson's sketch, we encounter a 'whole way of life' offering designs for 'social spaces, manners of address and the choreography of bodies'. (40) These designs were dedicated, Duncanson writes, to inculcation of a 'habit of a sociable disposition' emanating from a commitment to the 'ideal of a society of unforced civility'. (41) In Duncanson's reading, this was directed not towards the production of consensus, but rather towards 'allow[ing] differences to be negotiated without animosities permanently establishing themselves'. (42) The infinitely repeated 'decision ... to be in common' (43) of Douzinas' account is sketched in ethnographic terms here in the 'continual adjustment of agreements about how commonality is to be maintained'. (44) It is in this context...
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