Facing the Abyss: International Law Before the Political
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Facing the Abyss: International Law Before the Political
FLORIAN HOFFMANN
There is an art … or rather, a knack to flying. The knack lies in learning how to throw yourself at the ground and miss. (Douglas Adams, Hitch Hiker’s Guide to the Galaxy1)
I. A DISCIPLINE OF CRISIS
IN MANY WAYS, Hannah Arendt may be called a philosopher of crisis. It is a recurrent theme in Arendt’s thought, notably the crisis of republicanism, the crisis of education; indeed, the crisis of modernity itself.2 It is as much a heritage of her philosophical upbringing as of her witnessing of the quintessential crisis of the project of modernity.3 And it is, not least, a product of her classicism, that is, her seeing through the defining terms of modernity to their Greek-Roman origins which, to her, revealed the fundamental issues of human existence in a clearer way than modern civilisation has been able to. It is, arguably, primarily in the latter sense that Arendt can be said to have been a philosopher of crisis, as she did not see crisis only as the breakdown of normality, but as an instance that calls for a response to a question and, thus, as a moment of decision, which, in turn, requires judgement.4 In this classical sense, crisis is, for Arendt, the opposite of an undesirable state; it is, in fact, a crucial element for a modernity that does not fail itself by falling to hyperbole. For Arendt, it becomes a crisis in the modern sense only when the question to which a response is sought is either forgotten or no longer heard. And that question is, arguably, the question of political authority which, to her, is constitutive of the world itself.5 That world is, of course, the ‘now’, ie that which bridges the ‘gap between past and future’ and which thereby provides a firm footing over the abyss that looms below.6 Until the dawn of modern thought, that bridge consisted of authority in what Arendt defines as its Roman mode, notably authority as an act of foundation reiterated across time. Vested in those who represent past foundation, the elders, it was expressed through tradition and as such literally made (up) the world of the ancients.7 That world, however, is gone, and modernity is, to Arendt, not just its replacement but the ongoing lamentation of its demise, not just a new thinking triggered by crisis but crisis itself. For modernity represents the breakdown of authority, and the essential modern condition is to face that predicament. It is, for Arendt, a specifically political predicament, that is, one in which the bridging activity has become individualised and bestows upon each and every one the need to act for oneself, to make world, to think critically.8 The political is, hence, woven into the fabric of modernity; yet it has all too often been obscured. Recovering the political under conditions of modernity was, in any case, one of Arendt’s primary quests and the task she placed on those passing through her thought.
Arendt’s diagnosis of the inherently critical condition of the modern world is echoed in historiographical reflection on the dawn of the enlightenment.9 Reinhard Koselleck, for one, notoriously argued that it was the ‘discovery’ of historical contingency that led to the critique of traditional authority, and its eventual replacement with an unholy melange of authoritarianism and utopianism.10 He located this crisis in the eighteenth century, which, following Otto Brunner, he called the ‘saddle period’ (Sattelzeit).11 Like Arendt, Koselleck’s reflection on the modern condition took place against the backdrop of what would have seemed to both of them modernity’s catharsis, the catastrophes of the first half of the twentieth century, and both would retain a degree of ambivalence about the modern project because it stemmed from, and indeed represented, crisis. Somewhat earlier, Paul Hazard had argued that it was the emergence of the modern State system after the Peace of Westphalia in the seventeenth century that represented a ‘crisis of European conscience’.12 Hazard argued, not unlike Arendt, that it was the loss of religious authority which vouched for the reality of transcendent meaning that brought about a critical juncture and the eventual emergence of rational absolutism as the materia prima of the modern concept of sovereignty and the modern State system. Unlike Arendt, Hazard did not see all that followed as crisis but focused on the transitory moment of crisis which he evocatively called ‘une zone uncertain … malaise’,13 that is, a time in between, a moment to be seized, a kairos. Crisis as decision, as Arendt well perceived, links the concept not only to its etymological roots but also to the sphere into which it emerged in its native Greece, namely the public sphere of assemblies and courts, later of medicine and, of course, (military) history.14 To these ancients, the idea of crisis introduced an element of disruption and contingency into more archaic concepts of repetition, ‘eternal return’ or the ‘Golden Age’, thus creating a sense of time at once organic and fragmented, and bringing about an incipient sense of historical contingency and relativity.15 Much later, this critical contingency of the flux of history would, in turn, be re-framed so as to express the deeper logic of history itself. Augured in by the likes of Jean-Jacques Rousseau or Thomas Paine at the dawn of the ‘age of revolutions’, it was Marx who, by historicising the altogether uncritical Hegel, came to be the arch-thinker of the modern philosophy of crisis.16
Here crisis is the necessary consequence of the deeper logic of economic production; indeed, it arises from overproduction, and it necessarily forces the system of production to reconfigure itself in a historically more advanced form.17 Thus crisis drives historical evolution through revolution, the ingenious formula on which Marxist philosophy of history is premised. Yet this deterministic view of history came to be opposed by a different strand of late nineteenth-century historiography, notably that inaugurated by Jacob Burckhardt, which gave crisis near equal prominence in its historical narrative, if from a very different perspective. For in the incipient historicist tradition, crises as events mark the narrative stepping-stones of history. It is, hence, through breaks with the regular flow of history, through upheaval and disruption that historical flux may be discerned and described, though without there being an overarching meta-narrative and clear-cut teleological direction of history.18 Arendt, in turn, may be said to have attempted to budge this choice between crisis as structure or as event. Her critique of Marx centered, amongst others, on historical materialism’s elimination of the historical significance of the event, and the resulting reduction of freedom to the recognition of objective necessity.19 Yet her ‘libertarian existentialism’ placed her at an equal distance from mainstream historicism with its interest in observing the event as an external occurrence. For her, the event is not accidental but the result of pure, non-utilitarian action which interrupts the normal flow of historical time. It is, at least according to the exceptionalist interpretation of Arendt’s thought, crisis action;20 it implies a moment of choice, a bifurcation in the course of history which forces one to decide and move on, lest one ventures to abandoned history itself.
Is international law, then, in crisis? Has it, as a discourse and discipline, reached a dead end, and do global actors need to chart new territory to conceive of their relations? Or is there no crisis? The relation between international law and crisis is complex and multi-faceted. First, there is what might be termed international law and crisis. This is, arguably, the most common and, to many international lawyers, intuitive association with crisis, and it refers to those numerous yet discrete ‘international incidents’ which represent a breakdown of ‘normal’ inter-State relations and which raise the spectre of violence or humanitarian catastrophe.21 This is the sort of crisis that international lawyers thrive on, for, as Hilary Charlesworth has critically remarked, ‘it provides a focus for the development of the discipline and it also allows international lawyers the sense that their work is of immediate, intense relevance’.22 Charlesworth’s point here is that international lawyers tend to focus on one particular type of incident, notably individual instances of crisis, to the exclusion of the deep structures that produce what she terms ‘everyday life’ and which account for far greater human suffering than the aggregate of isolated incidents.23 This is, of course, an elaboration of the general contention that international law’s blind spot with regard to the deep structure of the international is no coincidence but a consequence of the project it articulates, notably the reconstruction of global politics as a liberal polity governed by a neutral rule of law.24 Yet, perhaps ironically, while this project sees international legality as the norm and its violation as the exception, it is largely through these exceptional ‘incidents’ that international law is reaffirmed and reproduced.25 It is during times of crisis that international law, by demarcating international ‘normality’, becomes a privileged episteme through which to frame the exception as exception and through which to articulate restorative action. It is also these moments which, as Charlesworth observes, bestow a critical role onto international lawyers, namely as the scribes whose privileged knowledge of the grammar of international affairs opens to them the prince’s ear.26 Hence, in a world in which ‘normal’ law, Charlesworth’s ‘law of everyday life’, is largely hidden within the private life of States, ‘incidents’ represent instances when international law becomes public and is affirmed as the telos of global political action. As such and paradoxically, the crises that dominate the international political agenda and that, to many external observers, reveal a failure of the international rule of law, are not, by and large, seen or felt as crises of international law by its practitioners.27 Indeed, for many an international lawyer, non-compliance does not challenge the reified view of international law as a factual system of rules governing inter-State conduct. Neither does it weaken the underlying conviction that this system enshrines progressive values which make it the most desirable modus operandi for inter-State relations.28
There is, however, a second sense in which international law is associated with crisis, and in this one, crisis does seem to affect the discipline and discourse itself, namely in the form of the phenomenon commonly referred to as ‘fragmentation’. The latter challenges, on empirical grounds, the idea that one unified body of rules governs all international conduct, and it implies three threats to the traditional conception of international law: the segmentation of rule applicability; the pluralisation of interpretative authority; and the colonisation of some legal regimes by others. All three may be viewed as dangerous cracks in the edifice of ‘normal’ international law which, if taken to their logical conclusion, would imply a dissolution of international law ‘as we know it’.29 However, while some scholars have expressed concern over the potential loss of coherence, and with it of legal certainty, predictability and equal treatment that fragmentation may represent, this has hardly been viewed as life-threatening for international law.30 Hence, in its Report on the Fragmentation of International Law the International Law Commission concluded that the available body of rules and accumulated precedent already contained all the tools necessary either to overcome or to manage regime pluralism and potential regime clash. Indeed, it stressed that
Here, international law is advertised not just as a necessary moderating device in international relations, but as being its own meta-law. It is taken to contain not only its own rules of recognition, but also its own rules of integration through which the different legal regimes are made to cohere.
Is international law, thus, resistant to crisis? If political crises are but international law’s basic nutrient, and if international legal pluralism is but its natural evolution, then its critique would be besides the point, that is, analytically misconceived and politically naive or even dangerous. Yet there is, arguably, a third way in which international law may be associated with crisis, notably as itself denoting crisis, or rather, as a symptom of the structural crisis that pervades global politics. That crisis is rooted in a lack of political authority in the international sphere and the replacement of political action by strategic politics. The latter is built on the Vatellian model of atomistic statehood and antagonistic national interest which is premised on the idea of (State) sovereignty. A product of the absolutist era, such sovereignty, in Arendt’s view, confounds freedom with free will, and therefore defines politics as the antagonistic encounter of sovereign wills.32 Anthony Carty has called this a ‘false ontology’ which provides the intellectual ground for what to him is a Hobbesian (mis-)conception of order in the international sphere. The latter is based on the
apparent construction of order based upon the opposition of the domestic and the foreign, and the paradox of a state system which rests upon the mutually exclusive suppositions that each is a self for itself and an other for all the others.33
Thus, (State) action is conceived of as inherently strategic and utility-oriented, driven, as it were in Arendt’s terms, by capitalism and nationalism, and international affairs become a network of private economic and military engagements, with the State being, in essence, an animal laborans writ large.34 The private pursuit of survival comes to constitute the public sphere of States, while the public pursuit of freedom is relegated to the private sphere of civil society. The crisis that modernity represents for Arendt is, hence, also one of the modern State system and of international relations. As such it is one, too, of the modern international legal project; for the latter is, as Martti Koskenniemi has shown, inherently paradoxical in its ‘structural coupling’ of utopian legalism and the apology of sovereignty.35 On the one hand, international law’s near exclusive focus on the State enshrines the idea of antagonistic sovereignty and creates a false nomos of politics; on the other hand, its articulation of universal features of humanity abstracts from concrete human beings and inverts cause and effect of (their) political action.36 Both result in a reduction of the space for politics and, thus, of freedom. For Arendt, the law of the modern nation State is unable to maintain, by itself, the balance between demos and ethnos, the rule of law and popular sovereignty.37 It may well, on the contrary, serve to cover up any imbalance in the name of an abstract humanity and to substitute technical solutions for political ones, a phenomenon now frequently referred to as managerialism.38
It is, hence, international law itself that demarcates the crisis of international politics. It embodies the fundamental tension between the universal and the particular which modernity, Sisyphus-like, continuously strives but fails to overcome. By enshrining the identity-creating particularism of the State system, international law produces the conditions of its own demise. To balance this sliding scale, it covers its particularist traces in an air of universalism which, however, abstracts from its concrete foundation in modern statehood and surrenders government through law to governance under law. Hence, the more the law is put in question in international relations, the more it is reasserted in trans-national ones; the less States seem to govern (through law), the more governance there is (by law). It is modernity’s mode of functioning, namely, to cover up the loss of foundation through a simulacrum of foundation. If political authority is the foundation, law mimics it in form but not substance. To conceal that lack of substance, its formal authority must continuously expand and reaffirm itself on new sites. Indeed, it must inherently strive to cover all the discursive space of, in this case, international relations in order to protect its authority and eliminate the possibility of uncovering its lack of (political) substance. As such, (international) law strives to rule, and the ideal of the (international) rule of law is a reflection of modernity’s imperialist discursivity. Its concrete shape is that of international legalism, that is, of the continuous expansion of the rule of law in international affairs. As a phenomenon, this has for long been known in (domestic) legal sociology as ‘juridification’, that is, as the gradual infiltration of the functional logic, or code, of law into other codes, most notably that of politics. The early Habermas described this, of course, as a process of colonisation which, at the time, he critically thought shifted legitimacy away from the political and onto the legal sphere.39 In fact, insofar as international legalism is, necessarily, articulated against international politics, it is itself a political project, namely, one that champions international law as the better international politics.
As with modernity in general, international law is paradoxically instrumental both in bringing about the loss of political authority and in trying to cover it up. It can obscure its failure to fill out entirely the hole left by political action only by hypertrophying, yet it provides, thereby, a sense of foundation and reassurance. It does so, of course, by laying claim to two legitimating discourses outside of its own remit, notably justice and peace. It is in the name of these two that international lawyers justify their ‘intervention’ in international politics, notably as a morally, sociologically and perhaps even politically necessary shifting of language games, out of politics and into law. Yet while expansive legalism is driven by the deep logic of the modern project of international law, international lawyers have scarcely been awake to its inherent contradictions or to the (ethical) need to take position on account of them. Instead, the abyss between real and ideal, power and norm, apology and utopia has largely been ignored in theory and plastered over by compromise formula in practice. Indeed, many international lawyers have felt emboldened by the legalisation of ever more subjects of international politics, be it international trade, environmental degradation and climate change, or mass atrocity in conflict situations.40