Living in international law

Chapter 5

Living In International Law

Fleur Johns


In international law, Peter Fitzpatrick locates a possibility. That possibility inheres in Fitzpatrick’s vision of an international law in which the truncation of certain ethical claims is ‘not so generalized’ – in which openness to or of those claims is ‘more receptively maintained’ – than in (most) municipal law (Fitzpatrick 2003: 457). That there may be something ‘positively and resistantly “in” ’ international law and that the ‘something’ in question may not (always or entirely) be reducible to power, imperium, sovereignty, nationalism, humanity, or some other ‘Eternal Object’ is a recurring theme of Fitzpatrick’s gentle goading to the discipline (ibid.: 441, 458). In that claim, Fitzpatrick both communes with international law in its contemporary incarnations and, in a variety of ways, stands apart from it.

This chapter will trace some of the distinctive inflections of Fitzpatrick’s note amid the cacophony that is international legal scholarship. It will seek to explore, in particular, that note’s perplexing relation to a predominant chord within the discipline: that of pragmatism. In so doing, this chapter draws attention to one of the most vital and distinctive dimensions of Fitzpatrick’s contribution to legal scholarship, international and otherwise: its rhythm. In Fitzpatrick’s work one sees enacted a practice of reading and re-reading – a rhythm of pause, attention, return, unfolding – that that is as much a contribution to international legal scholarship as the words in which it is enveloped.

In examining the method and metre of Fitzpatrick’s engagement with international law, this chapter looks primarily to chapter 5 of Fitzpatrick’s 2001 book Modernism and the Grounds of Law and his 2003 article in the Leiden Journal of International Law. It begins by focusing on the lawfulness that Fitzpatrick would have us recognize in international law – that is, in Fitzpatrick’s term, positivity (as distinct from positivism). This call to recognize the potency of positivity will be related here to modern international law’s invocation of ‘the social’ as a strategy for renewing and reorienting the discipline. Far from conforming with the trajectories of international legal thought, however, Fitzpatrick’s engagement with international law works against some of its governing tendencies. This chapter then turns to the uneasy relationship of Fitzpatrick’s work to international law’s (more or less) prevailing pragmatic, anti-formal disposition. Finally, the chapter concludes by focusing on the tempo of Fitzpatrick’s work. In the cadence of his writing, and the gentle persistence with which he reaches from text to reader and back again – slowly folding and unfolding a set of ideas – this chapter discerns an enactment of the theorization of international law that Fitzpatrick advances. That is, it locates in Fitzpatrick’s ‘method’ of pacing and punctuating his work a critical practice – hints of a way of living in and with – rather than a methodological key unlocking some untapped repository of knowledge (cf. Charlesworth 2004).

Law With Qualities

To a discipline long wearied of defending its lawfulness, Fitzpatrick’s writing has brought a characteristically generous gift: celebrate, he has said, that which is ‘positively and resistantly “in” ’ international law (2003: 458); its failure is, he argues, its fruitfulness. There is something deliciously contrarian about such an appeal to the positive. For the post-war discipline of international law has tended to measure its ‘success’ in terms of its cleaving close to power, and this ‘success’ has, in turn, been seen to depend on its capacity to empty itself more or less of anything enduringly positive. Instead, international lawyers have sought to navigate what one international lawyer has described as a dynamic of ‘ascending’ and ‘descending’ lines of argument (Koskenniemi 2006) – to live what Robert Musil (1952–3) might have characterized as a ‘hovering life’. All this has been, on occasions, with a view to speaking ‘truth to power’ from the margins of decision-making. Yet it has also been in the hope of remaining proximate enough to power to whisper sweet nothings or avuncular words of reproach in its proverbial ear, or so it is often seen (Koskenniemi 2004: 482–94; Berman 1999: 1525).

In place of this savvy, sometimes self-righteous and sometimes servile navigation, Fitzpatrick would have us plunge into the void between the ‘inter’ and the ‘nation’, or between, to borrow Fitzpatrick’s terminology, the ‘responsive’ and the ‘determinate’ dimensions of international law (Fitzpatrick 2001: 33–4; 2003: 440) and to find that space inhabited by peoples other than statesmen, diplomats, and imperial valets (more on those inhabitants in a moment). In Fitzpatrick’s account, international law possesses content – a ‘life’ (2003: 458) – that ‘resists and counters imper-ium’; or at least it might. The positivity which Fitzpatrick would have international lawyers cherish is not, however, that of positivism (2001: 70–84; 2003: 432). The ‘law’ of international law in which this resistance resides is both extant and something other than a body of law to which positive reference may be made. It may be discerned in the ‘efficacy’ of international law whereby ‘dissonance or divergence’ persists in the relation between international law and empire (Fitzpatrick 2003: 465; cf. Derrida 1987). Yet its amenability to being carried into ‘law made determinate’ remains in question in view of the ‘absence of “overarching” markers of law within international law’ (Fitzpatrick 2003: 458, 466).

In this respect, Fitzpatrick’s project to make international law rule anew as law parallels scholarly effort to rejuvenate ‘the political’ as against the givens of politics and prevailing political programmes. The persistent figure of ‘the law’ within international law to which Fitzpatrick would have international lawyers be more attentive can, like ‘the political’, ‘only be discussed by reflecting on society’s (absent) ground, not by describing society’s structural or institutional differentiation’. The law in this sense stands opposed to ‘the “ontic” practices of conventional [legalism]’, just as ‘the political’ stands opposed to politics as ‘the particular and, eventually, always unsuccessful attempts at grounding society’ (Marchart 2007: 52, 57; cf. Mouffe 2005: 9). This rendering of ‘the law’ stands for an ever-present capacity to displace or oppose one or other international legalism that seems to prevail at any given moment – a capacity that is coextensive with that very prevalence and as such depends not on looking ‘forward, . . . backward, no[r] in all eternity’ (Nietzsche 2000: 714).


In Fitzpatrick’s work, this ever-present capacity has quite a precise significance. For Fitzpatrick, paraphrasing Jean-Luc Nancy, international law is a ‘place where community as such is brought into play’ (Nancy 1991:xxxvii). Fitzpatrick’s effort to demarcate a theoretical site at which international law’s lawfulness is produced and to ‘find’ that site inhabited is, for this reader, to evoke the peripatetic lineage of ‘the social’ in international law, a lineage that is quite distinct from the pedigree of that term within political theory – the latter indicated, for example, in Arendtian thought (Pitkin 1998: 3–4). This is the first sense in which I should like to configure the relationship between Fitzpatrick’s writings on international law and other incarnations of this discipline: by relating Fitzpatrick’s insistence upon what he calls a ‘sociologic’ (or elsewhere a solidary ‘ethics of the existent’) to recurring attempts to restore to international law an imperative if paradoxical sociality (Fitzpatrick 2003: 438, 451, 454).

In international law, impulses towards solidary renewal of and through law have been related to, though not wholly synonymous with, broader trajectories of thinking ‘the social’ in law. In Duncan Kennedy’s work the term is shorthand for the rise and diffusion of ‘socially oriented legal thought’ over the first two-thirds of the twentieth century impelled by ‘the failure of coherently individualist law to respond to the . . . social needs of modern conditions of interdependence’ – in particular, ‘the problem of war, understood as the product of failures of an international order based on the logic of sovereignty’ (Kennedy 2006: 19, 38). In other words, as Austin Sarat has put it, ‘the liberal rationality of government associated with laissez faire and methodological individualism was generally reordered around the social as terrain for positive knowledge’ (2004: 5).

In international law this reorientation partially took the form of an ‘instrumental subjection of law’ to ‘an idea of society as a “ruling idea” ’ – an idea that Fitzpatrick dubs yet another ‘overweening sovereignty’ (2003: 438). Yet international legal theorists have also generated a sense of sociality in law that does not depend on society (or social fact of one kind or another) simply accounting for itself, such that the possibilities of law are wholly expressed in variants of the prevailing social order. Rather, international lawyers have long sought to articulate an idea of society that, in Fitzpatrick’s terms, exceeds ‘what is “for the time being” ’ and does so, moreover, ‘in law’ (ibid.: 440).

Such an orientation animated, for instance, Georg Jellinek’s late-nineteenth-century insistence upon the ‘normative power of the factual’ (1929: 338). For Jellinek, law did not arise from ‘the soul of the people by which it is sanctioned, nor from the common conviction that something is law on the strength of its inner necessity, nor from a silent act of the people’s will’, but rather from shared perceptions of the quotidian extant – ‘from the general psychological human characteristic that regards the constantly repeated fact as normative’ (ibid., quoted in Weinberger 1991: 26). A ‘community of individuals’ exhibiting such psychological characteristics retained ‘an original power to rule’, by self-restraint, in the furtherance of its own interest (Jellinek 1929: 180–1, cf. 161). Yet no legal expression of that ‘community’ could ever exhaust its existence; any particular rule of international law was always subordinate to the law-making capacity of the ‘community’.

Of course, Fitzpatrick does not share Jellinek’s optimism about ‘the intrinsic rationality of the European political order’ such that ‘the self-legislating freedom of States would not lead into anarchy or imperialism’ (Koskenniemi 2004: 207). What is shared is the sense in which law’s ‘infinite possibility has to be drawn in repeatedly’ (Fitzpatrick 2003: 444) in order to account for the concrete.

This drawing in of possibility through close examination of the ways that law sustains ‘the sociologic’ (Fitzpatrick 2003: 444) enlivened too the solidarism advocated by Alejandro Álvarez in the first half of the twentieth century (Obregón 2006). For Álvarez, the renewal of international law depended upon an abandonment of ‘the pretensions of absolute sovereignty’ as well as the belief that ‘the law has an existence in and of itself, or that it is founded on human nature’ in favour of an international law ‘that is the product of its surroundings’: the work of a ‘juridical consciousness . . . in perpetual evolution’ (Álvarez 1918–19: 34, 37).

More recently, a concern with the ‘sociologic’ embedded in international law’s effective dynamics has animated the reflexive sociologies of Yves Dezalay and Bryant Garth (1996, 2002a) and the studies that their work has inspired (Dezalay and Garth 2002b). In Dezalay and Garth’s writings the international legal order appears as both a product of, and a stake in, competitive struggles among governing elites in many nations – struggles characterized as ‘palace wars’ (1996: 11; 2002a: 5). Far from being an inert instrument of power, however, international law is positioned ‘at the core of the processes that structure, produce, and reproduce the field[s] of power’ as ‘symbolic fields with specific logics’ (2002a: 5, 13). Like Fitzpatrick’s (2003: 444), Dezalay and Garth’s account of the imperial work of law is one of both dependence and independence.