juris:generative

Maya Youssef, Breakthrough Classic FM session

Michelle Staggs Kelsall on Dis:Order

When Dr. Michelle Staggs Kelsall’s piece ‘Disordering International Law’ came out in EJIL in 2022, I was in the midst of writing an article on ‘Entangled Harms: A Reparative Approach to Climate Justice’ (forthcoming in the LJIL). I felt seen. Ever since starting my PhD in 2014, I heard of the fear expressed by many about an argument being published by others before one’s own. I never related to that anxiety, since everyone’s views and arguments are crafted along their lived experiences, readings, and reflections. The echo triggered by Michelle’s piece translated into excitement. I ended the introduction of my article with the following footnote:

My intervention aligns with the process of ‘disordering international law’ put forward by Staggs Kelsall, who invites critical international lawyers to ‘let go of liberal vocabularies in order to re-imagine how order might be constituted anew’. A focus on international legal disordering (i) ‘departs from liberal vocabularies in which institutions and state practice, the rule of law and the universal, rational subject remain central to critique’, so as to (ii) ‘reconstitute norms, conventions and principles determined with reference to a multiplicity of spatial orders existing over time, including the orders of communities whose knowledge has thus far remained largely outside international law’, while also (iii) ‘resist[ing] the desire to frame any new, alternative grand narrative for international law’ (Kelsall, at 731-32, 755).

I was equally excited by the opportunity to engage with Michelle’s argument in a ‘reflectiÖn’, and share with Michelle and others how her work inspired me and where her argument landed in my intellectual meandering travels.

I take Michelle’s argument as being both diagnostic and prescriptive. The diagnosis is twofold. On the one hand, Michelle observes how liberal vocabularies and protocols linger in most critiques of the international legal order. While critics deplore and problematize the liberal nature of that order, their critiques tend to remain attached to the state, the individual subject and the principle of freedom, which reinforces the unity, systematicity and continuity of that order. On the other hand, however, Michelle also observes how most critics of the international legal order stop short at diagnosing what its problems are, without ‘conceptualiz[ing] that order and practice differently’ (Kelsall, at 729). The prescriptive nature of the argument is therefore the following: that critics of the international legal order should ‘begin to conceptualize that order and practice differently’, to ‘speak of international law and of international legal order differently’, and ‘reframe what that order might yet look like’ (Kelsall, at 729, 757, 758). Against this backdrop, Michelle suggests adopting a ‘disordering sensibility’ to enable critics of international law to move beyond – a preposition sharply analysed by Dr. Vidya Kumar in another entry of Völkerrechtblog – the liberal framing of the international legal order. For Michelle, ‘international legal disordering provides an avenue of inquiry beyond current critiques of the neo-liberal project that moves the goal of critique beyond challenging convention, towards changing it’ (Kelsall, at 729).

While I agree with Michelle’s diagnosis on the prevailing liberal tenets of many critiques of international law and legal ordering – an issue I also explored elsewhere in relation to critiques of a human right to a healthy environment by way of a more radical yet still liberal call to recognize ‘rights of nature’ – in this blogpost I will engage with the prescriptive nature of Michelle’s argument on ‘disordering international law’ and its relation to distinct modes of critique. I will question what the assumptions and implications are of ‘re-imagin[ing] how order might be constituted anew’ by ‘suggest[ing] viable alternatives’ to the current legal order, rather than merely ‘expos[ing] what is wrong or lacking in [it]’ (Kelsall, at 729, 735). I will do so in two steps. First, by an   alysing to what extent ‘dis-ordering’ differs from ‘re-ordering’. Second, by exploring how ‘disordering’ enacts a (post-)critique of international law.

Dis-Ordering or Re-Ordering the International Legal Order?

Michelle’s call to adopt a ‘disordering sensibility’ is defined as a method or a ‘process of reflective discernment’ (Kelsall, at 729) when critiquing the international legal order. But what does ‘disordering’ mean and imply? The prefix ‘dis’ (which means ‘not’ or ‘opposite of’) when attached to a verb, implies the undoing of an action (here, the action of ordering). Disordering, then, means to undo the proper order or arrangement of something – the liberal international legal order in Michelle’s case, or liberal processes of ordering the ‘world’ of modernity in our engagements with Underworlds as sites and struggles of global dis/ordering.

Michelle’s disordering of international law is actualized when ‘critical international lawyers are [letting] go of liberal vocabularies in order to re-imagine how order might be constituted anew’, and ‘re-examin[e] what gets to exist in international law and which (or whose) knowledge systems are framing international legal argument and analysis’ (Kelsall, at 729, 752). Associating the disordering of international law to re-imagining and re-examining the international legal order, however, risks turning the process into one of re-ordering, rather than dis-ordering. The prefix ‘re’, while also conveying a notion of ‘undoing’, means both ‘back, back from, back to the original place’ and ‘again, anew, once more’. A process of re-ordering would go back to the roots, to the foundations of international law and re-order them anew (less imperially, less racially, less gender discriminatory, less anthropocentric, you name it). It would, however, keep with the foundational categories of international law. This is what I take Michelle’s article to be arguing against. Indeed, as she puts it, ‘[a] focus on international legal disordering departs from liberal vocabularies in which institutions and state practice, the rule of law and the universal, rational subject remain central to critique’ (Kelsall, at 731). A disordering critique, then, should not be aimed at re-imagining and re-examining the international legal order, but at disrupting it. To disorder, to disrupt, to undo the liberal international legal order is to transform and end – rather than reform and save – the world of modernity.

In the humanities writ large, these questions have led to heated debates about the assumptions and implications of critique, which I believe speak also to what Michelle brings to the fore in relation to critique and/in/of international law. In the next section, I therefore analyse how disordering international law speaks to (or against) affirmative and negative (post-)critiques.

(Post-)Critique and Practices of Refusal

Michelle laments that critiques of international law focus too much on ‘unmasking’ the problem, rather than ‘raising the possibility of any alternative legal order or alternative form of international law’ (Kelsall, at 755). As she puts it: ‘[i]n keeping with a tradition of critical legal studies, the primary goal of critique remains to expose what is wrong or lacking in the current legal order rather than to suggest viable alternatives’ (Kelsall, at 735). But can viable alternatives be suggested if our categories of thought and practice – our languages and schemes of representations – are products of the legal order that one is aiming to disorder, transform or abolish? Are ‘unmasking’ (or debunking) and ‘exposing’ (or revealing) not the best tools available to confront the enclosure of thought and contest the order of values that are taken as given in the world of modernity and its legal order? These questions relate to broader debates on different modes of critique (or post-critique) broadly understood as affirmative (which ‘move from critique to an affirmative account of ethical ways of being and becoming in the world beyond modernity’, to ‘find alternative ways to live after the world, to creatively and improvisationally engage with this world from these outside perspectives’, as Chipato and Chandler put it (at 8)) and negative critique (the task of which is that of negation, rather than affirmation: to deconstruct and refuse the world of modernity ‘before we can start thinking about something better’, ibid (at 14)).

Affirmative critiques overcome dialectics of contradiction by imagining what comes after opposition, while negative critiques stop short at determining what the problem is, without necessarily offering a way beyond it. While affirmative critiques – or post-critiques more generally – and their turns to aesthetics, affects, corporeal embodiment, and care have been criticized for being depoliticizing (even apolitical and ahistorical), negative critiques have been contested for their focus on deconstruction, their cynicism and alienation, their inhibition of constructive alliances. For Rosi Braidotti indeed, who elaborated the ‘affirmative turn’, the latter ‘is clinical in the sense that it is “detoxifying us from the effects of the negative,” and creative rather than descriptive, as it must not stop at the actual, which would be a critique of what we are ceasing to be, but move onto “creative actualization of the virtual (i.e. of what we are in the process of becoming)”’ (as Gandorfer puts it (at 372), in reference to Braidotti (at 7)). In this spirit, affirmative critiques come close to pre-figurative politics and legalities (Cooper, 2023; Cohen & Morgan, 2023).

Today, however, in seeking radical alternatives to the modernist world-ordering project and its colonial, racial, and ecological oppressive foundations, we witness a renewed backlash against such approaches, with a growing number of perspectives grounded in Black studies, Black feminist theory and decolonial works that argue for ‘world-destructive theories’ (which are ‘world-subtractive rather than world-additive’) (Colebrook, 2021; Colebrook, 2023; Ramírez-D’Oleo, 2023), the ‘negativation’ of refusal (Ferreira da Silva, 2022), the ‘paraontological’ (Chandler, 2013; Karera, 2022; Chandler, Pugh & Dekeyser, 2023), the ‘abyss’ (Pugh & Chandler, 2023), the ‘Black horizon’ (Chipato & Chandler, 2022; Chipato & Chandler, 2025), ‘worldlessness’ (Dekeyser, 2022), ‘nothingness’ (Moten, 2013), the ‘non-relational’ (Chipato & Chandler, 2022; Terada, 2023), ‘Afropessimism’ (Wilderson III, 2020), ‘non-philosophy’ or ‘antiphilosophy’ (Ferguson, 2020); or the ‘antipolitical’ (Danewid, 2023). These contemporary strands of critique can broadly be conceived as enactments of refusal. As articulated by the Practicing Refusal Collective founded by Tina Campt and Saidiya Hartman, refusal is a ‘generative and capacious rubric for theorizing everyday practices of struggle often obscured by an emphasis on collective acts of resistance’. Practicing refusal, then, names ‘the urgency of rethinking the time, space, and fundamental vocabulary of what constitutes politics, activism, and theory, as well as what it means to refuse the terms given to us to name these struggles’ (ibid.). As Tina Campt understands it, refusal is nothing less than ‘a rejection of the status quo as livable and the creation of possibility in the face of negation, i.e. a refusal to recognize a system that renders you fundamentally illegible and unintelligible; the decision to reject the terms of diminished subjecthood with which one is presented, using negation as a generative and creative source of disorderly power to embrace the possibility of living otherwise’ (ibid.).

If practices of refusal use ‘negation as a generative and creative source of disorderly power to embrace the possibility of living otherwise’, then refusal seems to overcome the binary between either negative or affirmative critique – thereby echoing another invitation that Michelle formulates in her article, namely to ‘reject[-] the idea of an either/or binary’ in favour of ‘a logic of non-dualism’ (Kelsall, at 731). Indeed, as a mode and practice of critique, refusal seems to combine both elements of negative and affirmative approaches, yet distinctively so: the generative nature of negation is here speculative. Gestures of refusal – a refusal of recognition and inclusion into the world of modernity and its template of liberal subjectivity – cling to the necessity of imagining ‘otherwise worlds’ (Lethabo King et al, 2020). To take the example of Saidiya Hartman, for whom the refusal of the anti-Black order, dominant narratives and structures of power is imperative, this refusal is not merely a negative act, but a generative one too. In Wayward Lives, Beautiful Experiments, Hartman reckons indeed how the young black women she critically fabulates into existence, waywardly, ‘were radical thinkers who tirelessly imagined other ways to live and never failed to consider how the world must be otherwise’ (Hartman, 2019, at xv). In a similar vein, in Unpayable Debt, Denise Ferreira da Silva argues that the task of ‘negativation’ – whereby the negative is activated to perform an enactment of refusal: ‘refusal to die, refusal to comply, refusal to give up and give in’ (Ferreira da Silva, at 273) – is to ‘expose, describe, and unsettle [the] arrangement [of post-Enlightenment thinking and political architecture and of modern existence]’ (Ferreira da Silva, at 36). Ferreira da Silva here clearly embeds her work into a form of negative critique and dis-ordering process. Yet the task of negativation, Ferreira da Silva continues, is also to ‘articulate an invitation to an image of existence that is not supported by force of necessity or the mechanisms of symbolic and total violence it sustains’ (Ferreira da Silva, at 37). Such enactments of refusal of the order of things, which are driven by an imagining of how things could be otherwise, is perhaps best articulated in Ferreira da Silva’s call for ‘[c]reative poethical tools that welcome other images of existence while the work of bringing about the end of the world we know is under way’ (Ferreira da Silva, at 286). Refusal transpires here as a mode of critique or a method of ‘re/de/compos[ing] the continuing and lively inheritances of Enlightenment thought, moving us toward the potential dissolution of its forms’ (Ekbo & Ferreira da Silva, 2023; Ferreira da Silva, at 28). ‘This is the domain of speculation’, Ferreira da Silva insists, which is ‘about thinking guided by an “as if,” as if the image captures existence’. This speculation, however, is neither about ‘proving that something is true’, nor about finding ‘a principle from which to only determine, delimit, consider something’ (ibid). It is here that I see an important difference with more traditional modes of affirmative critique. By joining concrete and actual practices of refusal of the world as given, with speculative imaginings of a world otherwise, a distinctive mode of critique emerges, which hints to a different way of existing in this world in relation to others. Because, as Fred Moten claims, ‘I believe in the world and want to be in it. I want to be in it all the way to the end of it because I believe in another world in the world and I want to be in that’ (Harney and Moten, 2013, at 118).

Coming back to Michelle’s article, a sense of refusal echoes in the principle of ‘non-consent’ she invokes to illustrate practices of disordering, exemplified in her piece through concrete actions of nuclear non-proliferation and disarmament (Kelsall, at 756). An imagined otherwise world without nuclear proliferation – which does not ‘threaten[-] human existence as a whole’ – is imagined here without, however, being pre-determined or given in advance. For Michelle, such examples of ‘non-consent’ may enable critics of international law ‘to start to think through how this might affect our understanding of the norms, principles and conventions that should be given priority in international law’ (Kelsall, at 756). Yet, as I elaborate in the concluding remarks, there might be more to gain from engaging with practices of refusal in ‘disordering’ international law.

Concluding Thoughts

The generative and creative connection between refusing and imagining brings me back to my initial observation about ‘dis’ and ‘re’-ordering international law. Michelle’s argument calls for both negative and affirmative modes of critiquing international law – for both ‘dis’ and ‘re’-ordering the international legal order. Indeed, ‘international legal disordering’, Michelle argues, ‘moves the goal of critique beyond challenging convention, towards changing it’ and does so by ‘re-imagining’ and ‘re-constituting’ the international order anew (Kelsall, at 729). Michelle conceives this re-imagining exercise as ‘the painstaking and messy work of recognizing the knowledge systems and understandings of law that today comprise our world and the inter-sovereign’ (Kelsall, at 756). Yet, are we hereby not re-entering the liberal realm of recognition, inclusion, and expansion? Put differently, urging ‘to reconstitute norms, conventions and principles determined with reference to a multiplicity of spatial orders existing over time, including the orders of communities whose knowledge has thus far remained largely outside international law’ (Kelsall, at 755), assumes a desire or demand to be included into a ‘unified’ inter-national and inter-sovereign order (Kelsall, at 756). This assumption discards potential politics of refusal against an inclusive recognition (Simpson, 2014) that acts as pre-condition to be made transparent to (Glissant, 1997) and admitted into existence in the international legal order. In a similar vein, when holding that ‘[t]he task here would not stop at critique, in that the norms, conventions, principles and practices would need to be documented and brought into some form of as yet disordered order, a morass of worlds colliding’ (Kelsall, at 756), Michelle articulates a reformist promise of re-ordering that should mobilize critics to have faith and get involved in dis-ordering international law. ‘While initially being a disordered worldview’, Michelle argues, ‘it is one that international lawyers should confront’, since a ‘disordered worldview’ may ‘open up the possibilities for international law to govern a unified world, or worlds’ (ibid.).

And yet, as practices of refusal suggest, perhaps it is precisely this tendency towards re-ordering, re-inscription and re-unification that might need to be suspended. The nuance lies in where the action is oriented and power distributed, namely towards dis- rather than re-ordering the world of modernity and its conditions of existence. It might be hidden in this interstice between the ‘dis-’ and the ‘re-’ that Michelle re-commits herself to a liberal vocabulary and worldview, where the disordering ultimately serves to guide and inform processes of reordering – of recognition, of inclusion, of documentation, of unification (Kelsall, at 755-756). To link disordering with refusal, rather than reordering, might open up an image of existence ‘after the end of the world’ (Ferreira da Silva, 2022; Colebrook, 2023; Jackson, 2020; Yusoff, 2018), where the end of the world and of its liberal international legal order is figurative or speculative: it ‘neither presumes nor demands data, meaning, evidence, or ground’ – as long as the work of disordering is under way (Ferreira da Silva, 2022, at 286). In this spirit, Michelle’s remarkable article might well be an invitation to ‘re/de/compose’ international law.

Author’s note: The title is inspired by the concept and practice of ‘re/de/composition’ elaborated by Denise Ferreira da Silva.