Incitement to justice: Fitzpatrick ‘s citations as counter-imperialism

Chapter 1

Incitement to Justice

Fitzpatrick’s Citations As Counter-Imperialism

Marianne Constable


In reading Peter Fitzpatrick’s work on law, one is immediately struck by the richness and breadth of his citations. Fitzpatrick paraphrases and quotes directly with great fluency from not only Foucault, Derrida, and Blanchot, but also Hobbes, Rousseau, and the Bible. He shows himself to be up to date with law and secondary literature in any number of fields: international law, jurisprudence, legal history. A UK law professor, he appears as comfortable with US national security documents as with Canadian case law concerning indigenous peoples, as comfortable with contemporary novels as with classic poetry. He analyses bestsellers in political science and refers to the most recent essays of contemporaries with whom he is both more and less attuned. Drawing insistently and persistently on the thoughts and writings of a range of others, Fitzpatrick’s work nevertheless manifests an originality that challenges not only the imperialism of the state and its law, but also the imperialism of a particular sort of scholarship about law – in particular, that of the empirical social sciences.

One might simply attribute Fitzpatrick’s challenge to conventional sociolegal studies to the ‘post-structuralist’ or ‘postmodern’ tenor of his work; to do so would be to apply labels without considering what they name, however. Both Fitzpatrick’s substantive arguments and his writing style – if one will allow that distinction – counter what is taken for granted in law and legal scholarship. In his 2003 essay ‘ “Gods would be needed . . .”: American empire and the rule of (international) law’, for instance, Fitzpatrick finds that international law, with its aporias and layers and contradictions, may counter the hegemony or imperialism of an American law that is linear, exhaustive, and powerful. Such law has correlates, as we shall see, in a particular sort of scholarship. And just as Fitzpatrick’s account of international law, drawing on Derrida among others, counters American state law, so too Fitzpatrick’s inimitable writing style – with its own citational layers and silences and conflicts – counters the hegemony or imperialism of the global sociolegal enterprise’s mainstream scholarship. In the face of a perhaps now not-so-new sociolegal imperialism in the writings and circulations of law, Fitzpatrick’s celebration and recollection of a multiplicity of humanistic texts and approaches incite us to what might otherwise remain outside writings of and about law: possibilities of justice.

I should mention at the outset that my comments here are offered neither as conspectus (to use a word Fitzpatrick likes) nor comprehensive analysis of Fitzpatrick’s work. This essay of appreciation aims simply to say something of what I like about a recent set of pieces in which Fitzpatrick writes of the responsiveness (or not) of law to claims of justice, if I have translated properly into my own idiom. In reading for the occasion of this Festschrift, I was chagrined to find how much of Fitzpatrick’s work I had not previously encountered. I have no opportunity to engage here with Fitzpatrick’s anthropological and Marxian work, nor with his critiques of H. L. A. Hart, for instance. To gauge from our essays on Robert Cover’s ‘Violence and the word’ (Sarat 2001), though, Fitzpatrick and I share the view, I think, that if state law no longer speaks of justice, then that is not a reason to ignore or neglect justice. It is, rather, a reason to reconsider the claims of state law to exhaust the category of law.

Fitzpatrick develops this argument in ‘Gods would be needed . . .’. He turns there to international law to find possibilities – however inherently contradictory – of a law that can counter what he calls the imperialism of American state law, a state law exemplified in his essay by the 2002 US National Security Strategy. Its power is positivistic, sociologic-al in Fitzpatrick’s terms, socio-logical in mine, and instrumental. Not only does Fitzpatrick suggest (and ‘suggest’ is more apt than ‘propose’ in Fitzpatrick’s writing) an alternative law, but his writing itself opens one up to possibilities of law – and of justice and of ways of knowing – that counter, again, not only American imperialism and its claims, but also the imperialism of the sciences of society (sociologies) that would – that is, seek to – determine reality while themselves constituting law.

After briefly summarizing Fitzpatrick’s account of the relation of ‘American empire’ to ‘the rule of international law’, my argument proceeds in two parts. I suggest, first, that international law has also become the site of a new imperialism: that of the social sciences. The best-intentioned sociolegal scholars see universal human rights as the ‘best global vision’ that we have. They turn international law into precisely the kind of nation-state-oriented or imperialist law that, Fitzpatrick recognizes, is but one aspect of a lovingly incomplete international law. Second, I show that, like the controverted international law that Fitzpatrick argues is both in and beyond itself, Fitzpatrick’s work manifests without apology and with apt reflection the somewhat schizophrenic symptoms of what Derrida identified as ‘archive fever’. Both state law and sociolegal products and productions seek to stabilize and deny these symptoms. In explicitly acknowledging them, Fitzpatrick’s own legal writing emplaces (to use another of Fitzpatrick’s own terms) an alternative to the current imperialism of the empirical in the writing and circulation of law, which alternative keeps open the responsiveness of law to claims of justice.

The New Imperialism

Fitzpatrick sees the history of law as a trajectory from a ‘theologic’ to a ‘sociologic’ in which the modern ‘Eternal Object’ humanity is, ‘borrowing Derrida’s term, a “secularised sacred concept”, uniting as it does an impelling force of transcendent right with a profane location in the factual’ (2003: 443). Such a trajectory accords, of course, with the genealogies of reason and of law offered by Nietzsche and those who have followed. As Fitzpatrick puts it elsewhere, modern law ‘can no longer resolve the divide between its determinate existence and its responsiveness by way of a transcendent reference, by way of divine right’ (2010: 449); in effect, ‘Gods, or a god, would still be needed’ (2003: 436). For Fitzpatrick, then,

law ‘is’ the settlement in terms of a normative continuity of the existential divide between a determinate positioning and a responding to what is beyond position, and it is in the necessity yet impossibility of such settlement that law is iteratively impelled into existence.

(2004: 223)

In ‘Gods would be needed . . .’, Fitzpatrick shows, against this background and against the many usual critics of international law, how international law is law. He argues that although the nation-state is often viewed in opposition to both international law and imperialism, the United States, as the most powerful nation of modern nationalism and with its claims as to the sovereignty of its municipal law, is a carrier of imperialism. He turns to international law as a site of, among other things including power, an ‘imperative and counter-imperial ethics’ that may counter US claims to sovereignty.

The idea of the sovereignty of US law, Fitzpatrick (2003: 430) argues, relies on a completeness of power or an illimitable authority that is nevertheless determinately emplaced. Through the United States’ claims to sovereignty, the once-revolutionary dimension of the rule of law, Fitzpatrick writes, its being ever-responsive to change and conducive to the unsettling of any fixed rule, becomes oriented towards determinate settlement. So – to oversimplify – in state law, according to Fitzpatrick, the rule of law, even in its aspiration, becomes fixed and static, in a manner that parallels the way that sovereignty claims to be exhaustive.