re:sources

Janka Nabay and the Bubu Gang, Sabanoh

Michelle Staggs Kelsall on Dis:Order

“For the master’s tools will never dismantle the master’s house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change. (…) Racism and homophobia are real conditions of all our lives in this place and time. I urge each one of us here to reach down into that deep place of knowledge inside herself and touch that terror and loathing of any difference that lives here. See whose face it wears. Then the personal as the political can begin to illuminate all our choices.”

 – Audre Lorde

One of the characters in Sarah Ladipo Manyinka’ second novel, “Like A Mule Bringing Ice Cream to the Sun,” a book addict by the name Dr Morayo, explains how they arrange their bookshelf in that “books are arranged according to which characters [they] believe ought to be talking to each other. That’s why Heart of Darkness is next to Le Regard du Roi, and Wide Sargasso Sea sits directly above Jane Eyre.” I have since employed this method in my scholarly reading practice. For instance, I pair Antony Anghie’s Imperialism, Sovereignty and the Making of International Law with Siba N’Zatioula Grovogui’s Sovereigns, Quasi Sovereigns, and Africans; James Gathii and Ntina Tzouvala’s Racial Capitalism in International Economic Law with Adam Bledsoe and Willie Jamaal Wright’s the Anti Blackness of Global Capital; Arlette Farge’s the Allure of the Archive with Sadiya Hartman’s Venus in Two Acts; Sandford Levinson with Derrick Bell and so on  Reading this way helps with not only interpreting different perspectives simultaneously but also seeing how the text interacts with other works with similar themes.

Some of these pairings are similar in their methodologies and modes of interrogation. Other times, they are oppositional in their polemicity. For this contributions, however, I have taken the liberty to bring Michelle Staggs Kelsall’s “Disordering International Law” in conversation with Mohsen al Attar’s “Subverting Eurocentric Epistemology: The Value of Nonsense When Designing Counterfactuals.” I am putting these two astonishingly brilliant scholars in conversation for the simple reason that, I believe, Staggs Kelsall has somewhat answered and assuaged the many frustrations of al Attar has with critical international law scholarship, particularly TWAIL. Given the limitations of this space, the rest of this piece (a) briefly discusses Staggs Kelsall’s Dis/ordering theory, (b) bringing Staggs Kelsall in conversation with al Attar, and (c) what this conversation means for critical legal theorizing in general.

What Does Dis/Ordering Look Like?

In this field- expanding piece, Staggs Kelsall brings in fresh sensibilities and insight to the analysis of international law. She posits legal Dis/ordering as a “process of reflective discernment in which norms, conventions and principles determined with reference to a multiplicity of spatial and temporal orders reframe any understanding of international law.” (p.731). That is, a solicitation to open new ways of thinking about and in international law. This is nothing new. Many critical legal scholars have proffered new way of thinking and doing international law. For example, postcolonial and TWAIL scholars have raised our awareness of the epistemic violence that undergirds the entire Eurocentric international law. Then, there is the feminist approaches to international law, which interrogates the treatment of the ‘woman question’ in international law touching on international institutions and practices, labour, land ownership, and legal subjecthood. However, in both or these theories and other strands of critical international legal scholarship, one factor remains constant: all these challenges operationalise within the neoliberal, Eurocentric universe.

Staggs Kelsall, instead, calls for a total jettisoning of this universe – a material and metaphysical abandoning of this world including its neoliberal vocabularies and liberal protocols. This jettisoning requires adopting a non-dualist subjectivity that “centres on the unity and continuity of concepts and beings” (p.731). This rejects, Staggs Kelsall continues, the “idea of an either/or binary, instead pointing to the inseparability of these concepts, acknowledging that ‘that which is excluded is crucial to the formation of what is included” (ibid.). This is not, it is important to note, about chaos, anarchy or other forms of nihilism. Neither is it about new, alternative grand narrative for international law or to claim to identify a new world order or even a counter-narrative. Rather, it is about accepting “the limitations of Western legal knowledge understood through the liberal tradition and to begin the more challenging task of imagining a world in which that knowledge is not paramount” (p. 732). It would involve, Staggs Kelsall notes, an interrogation of three key concepts:

First, time by discarding liberal notions of progress and the neo-liberal project of ‘real time’ governance in favour of “integrat[ing] non-liberal and largely non-Western norms, conventions and principles – determined with reference to a multiplicity of spatial orders existing over time – into international law” (ibid.). In this new imaginary, time is non-linear and other forms of historical understanding that prioritises fundamental and common interests of humanity is foregrounded, creating in the process a “joint knowledge of something, a knowing of a thing together with another person” (p.736).

Secondly, subjectivity by breaking with the teleology of the liberal order that places a primacy on Western understanding state towards a more fulsome understandings of sovereignty and inter-sovereign relations as understood in and through other knowledge traditions. Here, the Staggs Kelsall uses the Chinese concept of the ‘community of common destiny’ in asserting an alliance with the Third World as not only resisting Western hegemonic interpretations of international law but also embodying a distinct set of underlying values in the international legal order (p.748).

And lastly, forsaking freedom within its liberal confines as an external existential end goal of governance or a material embodiment through the acquisition of rights to, and freedom from, particular entitlements (p.737) towards “recognizing the knowledge systems and understandings of law that today comprise our world and the inter-sovereign” (p.756). This would mean delinking freedom from the state and embracing ‘multiplicity of spatial orders existing over time, including from communities whose knowledge has thus far remained largely outside international law because they are fundamentally distinct from liberal notions of order and have been in existence for over the past two millennia’ (ibid.).

In Dis/ordering, Staggs Kelsall shows us that fully letting go of contemporary international legal order demand we confront the terrifying reality that everything in this liberal material and metaphysical worlds will have to change. And this change would involve not only ‘disrupting the systemic function or neat arrangement of legal ordering but also uniting past, present and future temporalities by drawing from non-Western epistemologies’ (p. 758).

At the same time one may wonder, has Dis/ordering theorizing rectified the underlying paradox in critical international legal scholarship and the practice of seeking freedom from all forms of modern European formulations of international legal ordering?

Speaking International Law Order Differently: Staggs Kelsall in conversation with al Attar

In reading Mohsen al Attar’s Subverting Eurocentric Epistemology, one senses his frustration with critical international legal theory (CILT), particularly TWAIL. For al Attar, TWAIL has run its course as ‘far fewer are the denials of international law’s barbaric past or, of the contingency of the world’s current configuration, however, it is insufficient since it only stokes vexation and rage but doing little to alter the course of international legal history (p. 2). This is because TWAIL is “unwilling to depart the arena of international law, notwithstanding the injustices that international law has inflicted on the Third World’ for they, like others, believe in the ‘transformative potential of international law and in the ideal of law as a means of constraining power” (p. 7). While al Attar bemoans the Impermeability of TWAIL in tragically clinging to the transformative potential of international law, he proposes the use of counterfactuals ( as espoused by Ingo Venzke) but with a caveat. Counterfactuals here exposes the imbalances in Eurocentric international law by “drawing attention persistence of paradigms of racism and white supremacy in the operation of the global economy, albeit in abstract language” (p.15). This would work by “tweak[ing] aspects of international law while preserving the underlying framework and the overriding epistemology” (ibid.). The caveat — and perhaps al Attar’s irritation — here though is that “the counterfactual is itself laden with the West’s corrosive institutions that constituted a tiered world in the first place” (ibid.).

Well, Mohsen al Attar may I introduce you to 🤝🏽 Michelle Staggs Kelsall.

I believe in Dis/ordering al Attar will find a wonderous machine of postmodernity that not only does away with our statist assumptions when determining what counts as international law, but also embraces the diversity and complexity of the resources available to us as humans for thinking through our collective problems, dilemmas, and the like. In Dis/ordering, both al Attar and other critiques of TWAIL movement will find an expansive world that imagines itself outside liberal Eurocentric dialectic. It operates across time and space, not bound by liberal linearity that has become a hallmark of contemporary international legal scholarship, rather acknowledging — embracing and incorporating, even — competing temporalities. In this way, I suspect Dis/ordering has assuaged the itinerant frustrations of TWAIL (and CILT) critiques, Mohsen al Attar included.

Closing Thoughts – What Now for Critical International Legal Scholarship?

Reckoning with Dis/ordering raises an interesting question: once we are free of liberal Eurocentric international legal ordering, and existing temporalities of liberal institutions that rely heavily upon liberal notions of progress, what then will become of international law? In many ways, Dis/ordering has opened a new world view — one which recasts both statecraft and international law, nudging us to rethink what it means to be human, humane, to think and know together in community with others. I suspect what would become of international law would be body of law built by all for all not tribal law (international law is really European tribal laws that was exported via imperial/colonial conquest, if we are being honest) extolled above and to the exclusion of others. Thus, “enabling us to explore other forms of knowledge generation in our analysis and on terms that we are yet to see but which need to be seen” (pp. 743 and 756).

I believe Dis/ordering has given us the language to demand the impossible, and with this new language critical legal scholars can, perhaps, now move beyond believing in the ‘transformative potential of international law’ (Eslava and Pahuja, 2011, 118) — a most narrow parameters of change, I must grudgingly admit– and start envisioning a new world order. A world that decentres the interests and dictates of transnational corporations but one that upholds people over property. A world where we are brave enough to drop what is not working –be it law, a regime, a system, an ideology — and yet be humble enough to seek out and dream up an alternative that works for everyone.  Employing a Dis/ordering sensibility in critical international legal scholarship imbues the movement with radical redemptive qualities by affirming and humanizing humanity in embracing all (and not merely a tribe) whilst uniting past, present and future temporalities by drawing from non-Western epistemologies. In Dis/ordering, we now have tools to dismantle the master’s house.