Fugue

Liberal Legal Order Re:dux, Re:boot, Re:turn.

“The liberal international legal order is dead.
Long live the liberal international legal order!”

This, it seems, remains the paradox of our contemporary moment. As Michelle Burgis-Kasthala inferred this week, and I have felt acutely, the liberal international legal order died in the months after 7 October 2023. As state officials (notably, those in the United States) became complicit in facilitating the continuous flow of arms to an Israeli government proclaiming a ‘war on Hamas’, which very soon became the outright elimination (or if you prefer, the extermination) of (the) Palestinian people, their cultural life, and the irreversible damage to the Palestinian ecosystem in the ‘war on Gaza’, any sense of a liberal legal order seemed to die an unceremonious death. What ‘order’ is there to speak of, when an ‘inherent right to self-defence’ is used to warrant unceasing, inhumane attacks against Palestinians deemed ‘legitimate’ military targets including those in hospitals, schools and refugee camps and being starved to death? When the ad bellum use of force is so removed from the principles of proportionality and necessity, that justifying the ongoing acts of violence on this basis seems shameless ((LSE, Academic Freedom after the Destruction of Gaza’s Universities, 2024)?

When the only response I could give to my perplexed and distraught students which made any sense to me at all was, ‘I’m crying too….I can tell you what the justifications are, and why, but I do not understand how this is being justified. It undermines the object and purpose of the Geneva Conventions, returning us to ‘just war’ doctrine. It also completely undermines the purpose of the United Nations Charter, re-writing our understanding of self-defence as the rule (Article 51), rather than the exception (Article 2(4)), or seeing it as irrelevant in relation to the ‘war on terror’. It is, at best, an extreme subjugation of the object and purpose of the Genocide Convention – a turning on its head of the obligation to prevent, now seemingly being utilised to prevent the destruction of the State of Israel, rather than confront in all its brutal complexity the use of ‘war on terror’ doctrine to justify the pre-emptive destruction of the Palestinian people. I cannot understand legally how this makes any sense, at all. And I disagree vehemently with my colleagues that maintain either the expansionist tendencies or the normative indeterminacy of self-defence doctrine in order to do so’.

Yet simultaneously, the liberal international legal order seems more alive and well than ever. The response to Gaza for many international lawyers (including myself) has been viscerally liberal, ordered and institutional. From the United Nations’ apex institutions of the International Court of Justice and the International Criminal Court, to the UN General Assembly, the UNDP, the United Nations High Commissioner for Refugees, the World Food Programme, UNICEF, UNWomen, the Office of the High Commissioner for Human Rights, independent international human rights experts, and, after nearly six months of stalemate, the Security Council, there have been ongoing demands for a return to our ‘agreed secular religion’, the rule of law. For justice and accountability, for ceasefire. These statements then, do not so much articulate a paradox as they do enunciate a paradigm. The lifeblood of the order might be dead, but the order itself is very much intact. The interpretation of the rules changes. The order stays the same.

Undoubtedly, my tears for Gaza will be perceived as cheap affect for those more cynical or less patient with me than my present company. How dare I cry, from my comfortable ivory tower in London. International law is, after all, dependent on crises for its very existence (Charlesworth 2002, Mbengue and d’Aspremont et al, 2022). Still others will say that Gaza is an immense tragedy, but so too, are a litany of other ongoing and past egregious conflicts too great in number to mention them here credibly (and for fear of leaving one out). Of course we return to the liberal international legal order, Michelle. What else is there? As the ’90s pop-Gods turned pariahs, U2, once proclaimed (albeit in distinctly analogue terms),

‘If there’s an order

In all of this disorder

Is it like a tape recorder?

Can we rewind it just once more?’ (‘Wake Up Deadman’ on Pop, 1997, 3:18-3:38)).

Why then, a ‘disordering sensibility’, amidst all of this?

What to make of it?

Disorder beyond Re-ordering: From Dialogue to Dialectic and Back Again

I am grateful for the opportunity provided by Sué Gonzalez and Anna Sophia Tiedeke, at Völkerrechtsblog to engage in these reflectiÖns. I have interpreted their call to be playful in keeping with Vasuki Nesiah’s suggestion in recent times to open up my ‘toybox’ and let go of my liberal legal toolbox (Underworlds, 2024). I am also deeply grateful for the reflectiÖns provided by the authors – and one author/artist – featured this week, all of whom provide a depth and breadth of insight that has enabled me to dare to imagine disordering, again. Drawing from Gina Heathcote’s musings, I have placed the disparate works of these elegant thinkers in dialogue with each other under different composed epigraphs. By dialogue, here, I am referring to how the tensions between various accounts of disorder are surfacing and enable us to conceive of subjects in international law, and international legal terms themselves, as plural and split (Heathcote, p.169). I do not assume to render an agreed reading of these authors’ texts, nor do I try to assume that there will be one agreed reading or interpretation of my attempt to illustrate my disordering methodology at play in this reflectiÖn.

I have done so, conscious of leaving space for interrup —

Yet because creative play for me inevitably begins and ends with music, I have conceived of these ‘dialogues’ in my response to these reflectiÖns not as conversations, but as the contrapuntal lines in a fugue. (What follows is undertaken with humility, in full knowledge that I am not a musicologist and in keeping with the spirit of play).

As a musical form, the fugue comprises

separate

but interrelated

lines of melody that together exhibit a complex tonal and harmonic range referred to as

Polyphony

Ordinarily, a fugue starts with a subject voice, establishing the primary melody, which is then answered by a voice in the dominant key of the original. A further range of melodic lines, known as counterpoints, are then added to the fugue, to add complexity and depth to these two.

Counterpoints can comprise both notes and rests. (Rests are silent, but are indicated in the music). Counterpoints can act as arguments to the original statement (dialectic) or reinterpretations of them or additions to them (dialogue).

A fugue comprises the ongoing interplay of statement and answer between these various voices, creating harmony and dissonance polyphonically, i.e., through many parts, simultaneously combined. The Baroque period (1600 – 1750), when the fugue was at its height, was a period of intense improvisation, during which the tonal, harmonic and dynamic range of western music expanded enormously. The same can be said of law at this time. (Manderson 2011, 2). As a form, a fugue is dangerous, precarious, because of its call to order, and (in my view) should be treated as such. And yet….

In his ovan* work, Culture and Imperialism (1993), Edward Said defends an interpretation of literary and historical texts he describes as ‘contrapuntal reading’. Contrapuntal readings interweave the internal (intrinsic) and external (extrinsic) readings of a work in order to remind the reader that the structure invoked in the text has plausible alternatives the work itself excludes. It situates the text (or in the case of international law, situates the legal doctrine) within a wider range of imaginative possibilities. It does so by providing the reader with overlapping aesthetic and hermeneutic possibilities to understand both the devices used and interpretations provided in different ways (Wilson, 1994, 266). For Said, the classic illustration is Jane Austen’s Mansfield Park and the treatment of the absent patriarch, Mr Bertram, who we are told is away on business in his plantations in Antigua. Contrapuntally read, the silent narrative of slavery and exploitation upon which the entirety of the wealth of those living in Mansfield Park depends is both absent and present in Austen’s text.

Perhaps lesser known than Culture and Imperialism, however, is Said’s earlier work, Musical Elaborations (1991), which itself can be construed as a contrapuntal voice to that work. In this work, Said, a talented pianist and music critic, provides greater depth to his understanding of counterpoint. Here, he draws significantly from Theodor Adorno’s discussion of the fugue and in particular, Adorno’s discussion of the work of Johann Sebastian Bach (Harrison 1995). As Adorno notes, Bach is writing his preludes and fugues during a period in which music, as a language and written script, is undergoing a phenomenal transformation in Europe, eventually leading to its commodification during the classical period that follows. Through his preludes and fugues, Bach both embodies this commodification and attempts to resist it, which Adorno reads as the ‘supreme manifestation of contrapuntalism’ (Harrison 1995, 62).

Bach’s fugues rely heavily on deliberate dissonances. Despite remaining a controversial character in musicology from whom my musings should handle with conscious care, Adorno argued Bach calls attention to ‘the importance of the line [of music] and motivic drive over mere conformity with the rules’ (Adorno Prisms 139, cited in Harrison 1995, 64). In other words, to fundamentally challenge the rationally constituted order of the manuscript of the fugue, itself built upon a strict mathematical canon. In Musical Elaborations, Said builds upon this understanding to develop the idea of reading contrapuntally as an ‘atonal ensemble’. According to Said, ‘We must take into account all sorts of spatial or geographical and rhetorical practices – inflections, limits, constraints, intrusions, inclusions, prohibitions – all of them tending to elucidate a complex, uneven topography.’ (Culture and Imperialism 1993, 386).

Drawing from Said’s methods and building on Adorno’s understanding of Bach’s fugue, I have (re)conceived of my method in disordering international law here as an exercise in arranging atonal ensembles. The goal, in so doing, however, is not to maintain the form of the order (i.e. to maintain the rules which comprise the fugue) by valorising flexibility, adaptation and innovation (Fleur Johns), but to open the space for improvisation to move beyond it. In this respect, I have interpreted the authors responding to this Call for reflectiÖns as each having offered a transgressive reading of the foundational ‘legal fictions’ that remain the underlying basis of the doctrines of international law and indeed, contemplating moving through these metaphysical questions to an exploration of ‘pataphysics of international law.

In keeping with Said’s method of incorporating dissonance and innovation, however, and then drawing upon Heathcote’s understanding of split subjectivity, I have reduced these terms by splitting each definition in two as follows:

State : hood

[state, noun in international law a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. (Article 1 Montevideo Convention, 1933) ]

[-hood, noun suffix, hood- noun prefix, as in hood-lum. hoodlum can be anyone from a dangerous outlaw to a young person who’s just up to no good. The exact origins of the word are not known, but one theory is that the word derives from hudelum, an adjective that means “disorderly” in dialects of German spoken in and around the region of Swabia]

As a compound word state:hood (nouns), signifies both the suggestion of a stable, static formalistic and reliable institutional and at the same time draws our attention to the latent violence and disordering potential of this institutional prototype.

Rose Sydney Parfitt’s artwork (GoatReindeerPepperTree, 2024) is itself a celebration of ambiguity. Yet, in Adithi’s Rajesh’s register, it illustrates the call to jettison anthropocentric hierarchies for an eco-feminist horizon, in which ‘the dichotomy between human and nature’ within the state itself is deeply challenged. Additionally, both scholars reminded me of the violence of the state (that hoodlum!) of which I continue to be hyper-aware. They form the subject voice in my fugue.

Do they in yours?

Response : ability

[response, noun in international law, a verbal or written answer, which can comprise
1.) counter-argument in an international court or tribunal;
2.) a revival or reconceptualization of a doctrine adapted to the perennial challenge of change (See redux) or
3) a reparative practice, operating in and through creative processes to engage with systems of oppression in transformative ways (See reparative reading).

ability, noun in international law, possession of the means or skill to practice as an international lawyer, most often associated with markers of privilege, centred on a depiction of ‘normal’ as embodied by, in, and through an invisible college (see also ableism and note divisible college)]

Breaking down ‘responsibility’ into these separate parts draws attention to the importance of our response to the current legal order and the extent to which understanding it as ‘liberal’ undermines both certain parties’ ability to respond, and be responded to, within that order.

Gamze Erdem Türkelli’s ‘Dreaming of ‘disorder’’ is set against Dimitri Van Den Meerssche’s ‘Governmentalities of Disorder’ and Fleur Johns’ ‘Organising International Law’, each as a response to international law scholar’s ability to disorder in the contemporary moment, which both Dimitri and Fleur raise doubts about. (Embrace hysteria!). Türkelli’s renditions of Césaire here and here, is a revelation of the ‘performative power’ of disordering.

But is it just a performance to you?

Re : sources

[resources, noun in international law, plural of the term resource.
resource, noun, 1) a stock or supply of money, materials, staff, and other assets that can be drawn on by an international lawyer or international institution in order to function effectively, able to be mobilized only insofar as that lawyer or institution conforms to the will of the state (See: state:hood). 2) Refer, however to subaltern internationalism (sources) and subaltern internationalism (jurisdiction)); Note also contra tradition and international law. ]

Here, rather than breaking apart I am adding to the definition of sources to gesture toward the link between international legal understandings of sources and the extent to which they are tied to a capitalist understanding of ‘resources’ – defined as ‘a stock or supply of money, materials, staff, and other assets that can be drawn on by a person or organization in order to function effectively’ (my emphasis).

Drawing from a deep engagement with Marxist scholarship, Umut Özsu suggests the naivety of my thinking (in the best possibly way) regarding jettisoning the liberal international legal order (or international law) entirely. His sense of ongoing ‘consciously controlled socialist forms of mediation’ (note: mediated middle paragraph!) that are imperative for social self-actualization sits

in sharp contrast

and yet firmly wedded to

‘a body of law built by all, for all’ that Amaka Vanni sees in my demand for the (im)possible. Amaka’s work itself beautifully places me in conversation with Mohsen Al Attar, a silent contrapuntal line (which would comprise musical rests). Of course, so many other authors in their pieces published this week did the same.

And then, well, where do we go from here?

Do we need to go anywhere, at all?

Juris : generative

[juris- (Latin) in international law, of law or of right used in international legal texts to describe different types of law (e.g. juris divini (divine law, divine right)). See also ius (naturale, gentium). Note contra post-human subjectivity; and related conceptions of law ].

generative, adjective, in international law, 1) relating to processes capable of production and reproduction in law, that enable a fecundity of meaning and interpretation (See: Nomos and Narrative); 2) an underground anarchic force in law, providing a productive range of immeasurable discretion (See: Jurisgenerative grammar).

Extending further the now well-known critique of jurisdiction as reduced to the ability ‘to speak the law’ toward an understanding of law that incorporates and connotes international law’s allegiance toward production and reproduction. Yet, resisting this idea.

Michelle Burghis-Kasthala is in dialogue with Marie Petersmann in this atonal ensemble. Returning us to Rose (or does she?), Michelle, speaks to both the state violence and current state of violence. And while her calls for a ‘no-state solution’ is one I agree with, I read Michelle echoing to go slow, to remain present in the mediation moment, because we can only go through it, as paths beyond or around it are unavailable – ‘it’ being our currently historical juncture, for better or worse.

Marie’s piece adds another contrapuntal line to the work of Michelle. While Michelle imagines a ‘no state’ solution which suggests that something else is possible, Marie so carefully articulates what I was trying to do all along, that is to re/de/compose, international law. This thought was always lingering in the background of my work. That she could see and retrieve it feels eery, almost psychic. Somewhere in the deep recesses of my subconscious, disordering international law is always tied to music, to rhythm, to melody – and as such to composition.

Counterpointing the Contrapuntal

‘Fugue’ itself, however, has a double meaning. In psychiatry, a fugue is ‘a loss of awareness of one’s identity, often coupled with flight from one’s usual environment, associated with certain forms of hysteria’. Building on Said’s work then, I seek, further, to incorporate feminist and queer interpretations of the fugue state. This remains a constant reminder, as I am drawing out these lines of fugal dis:order, that the authors themselves can claim the space for hysteria at any moment – both in their own work and in my own – which I encourage. As Maria Aristodemou has recently brought out in Gerry Simpson’s work, hystericization ‘retreats from law’s paradigmatic quest for answers and certainty and opens its door to doubt’ (EJIL 2024). Similarly, the disordering that takes place here seeks to rest in the space of doubt, rather than provide glib answers to what remain complex questions now presenting themselves to the field.

Additionally, because I do not wish for the authors’ voices to be constrained by fugal techniques in the composed epigraphs, I have further suggested for each pair or in one case, a triplet different pieces of music that are not fugues. (I would argue that sustaining resistance and dissonance remains central to any fugal composition, and my understanding of disorder). Each artist with which the authors are paired embraces dynamism and draws from different understandings of technique, harmony and composition.

I begin and end with two contemporary composers, Nithin Sawney and Maya Youssef. Nithin Sawney’s work, Homelands combines a depth of engagement with Indian classical music (both the raga and tala) with the composer’s own ingenuity and free form. Neither raga nor tala have equivalents in Western music, but both are mathematically precise artforms in their own right, hence presenting different kinds of order. Maya Youssef’s work, Breakthrough, itself written in celebration of the unbreakable human spirit witnessed in and through refugees from the war in Syria, is played on the Qanun (literally ‘law’ in Arabic). The Qanun is a monophonic instrument (hence itself a counterpoint to the idea of polyphony), with a rich scale that surpasses the piano. It has four levers (or tones) for each note (in the Arabic version of the instrument) and nine (in the Turkish version), where the piano only has two – a flat and a sharp. Additionally, the choice of Ana Tijoux, Janka Nabay and Yothu Yindi speak to artists mixing genres and styles of music. In Niñx, Tijoux combines urban hip-hop and Latin contemporary to respond to the idea of non-dualism with a meditation on nature; in Sabanoh (literally: ‘we own this land’), Nabay combined traditional Temne bubu music from Sierra Leone with dub-beat influences in response to the civil war; and in Treaty, Yothu Yindi combines the traditional playing of the Aboriginal didgeridoo with Indigenous rock music. All of the artists chosen have a political message in their work, speaking to the themes of identity, exile, nuclear power, war, migration, hope, freedom, our relationship to nature, and the end of the world.

And that’s where I end. For now.

But this is a work in pr—

!!!

I’ll be back.

* The author’s definition: Ovan (adjective): 1. Of, or relating to, or consisting of the ova, or female eggs. 2. A ground-breaking, fertile and richly creative work, contributing to the birth of later developments.