The Traditions of Modernity within International Law ... - SSRN papers

Legal Studies Research Paper No. 2014-02

The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism

John D. Haskell

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THE TRADITIONS OF MODERNITY WITHIN INTERNATIONAL LAW AND GOVERNANCE: CHRISTIANITY, LIBERALISM AND MARXISM1

ABSTRACT In its literature, the adjective ‘modern’ is typically inserted as a preface to the discipline of international law – ‘modern international law’. The rhetoric of modernity within the discipline, in turn, generally designates a liberal posture towards governance, both in terms of describing the nature of conflicts facing transnational regulation and offering solutions through international law. These critical evaluations and normative assessment within the literature are furthermore supported by juxtaposing themselves against what is not modern – whether that means to assert a former period, which is ‘pre’ or ‘early’ modernity, to situate particular actors or ideological predispositions as ‘barbaric’ or ‘anti’-modern, or even to claim that the cosmopolitan project of international law is still trapped within a colonial, or culturally biased, legacy. Academic writing in international law, however, rarely addresses how ‘modernity’ functions within the conceptual vocabulary of the discipline – particularly, what role it might have in shaping its methodological and theoretical assumptions. In this paper, I analyse the rhetoric of ‘modernity’ through its three primary traditions: Christianity, Liberalism, and Marxism. Addressing and contrasting each tradition’s treatment of three key themes – time, history, and the subject – the paper attempts to better understand how ‘modernity’ functions within international legal argument, and concludes by tracing out an alternative perspective forward that draws upon all three traditions, what might be termed, ‘structural jurisprudence’. The underlying argument of the paper is that only by taking all three traditions seriously can policy-makers and scholars begin to overcome not only the current lack of dialogue between contrasting orientations, but perhaps more importantly, break out of the insular and often static disputes and logic that bind their analysis.

Dr. John D. Haskell; Assistant Professor, Mississippi College School of Law; Honorary Research Fellow, Durham Law School; Co-Director of the International and Comparative Law Center (ICLC). This paper received generous support from the Harvard Law School Institute for Global Law and Policy (IGLP), the University of San Francisco School of Law and Mississippi College School of Law, and I am appreciative to the conference organizers of the European Society of International Law (ESIL) and Law and Society for allowing me the opportunity to present earlier versions of this draft for peer review. I am especially grateful to comments by Mark Modak-Truran and Akbar Rasulov in writing this paper. Jessica Fish offered useful insight concerning the theological discussion within the paper, and I am thankful to further conversations concerning theology with Peter Danchin, Peter Fitzpatrick, Mark Janis, Kevin Lee and Robin Lovin. The analysis of the liberal tradition is extensively informed by conversations and (re)reading the work of Matthew Craven, David Kennedy, and Martti Koskenniemi. A number of conversations with colleagues were also very helpful in better understanding Marxist theory, including Grietje Baar, Bill Bowring, Paavo Kotaiho, Rob Knox, Tor Krever, Paul O’Connell, and Umut Ozsu. The term ‘structural jurisprudence’ is the product of conversations with Akbar Rasulov, and more generally, with colleagues attached to the Harvard Law School Collaborative Grant, ‘The Sociology of Knowledge Production’ and fellow board members in the European Society of International Law’s Interest Group on International Legal Theory. 1

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TABLE OF CONTENTS I. II.

III.

IV.

V.

INTRODUCTION: THE RHETORICAL FUNCTION OF ‘MODERNITY’ ……… MODERNITY IN THE CHRISTIAN MODEL ………………………………. a. TIME ……………………………………………………………….. b. HISTORY …………………………………………………………… c. THE SUBJECT ………………………………………………………. MODERNITY IN THE LIBERAL MODEL ………………………………… a. TIME ……………………………………………………………….. b. HISTORY …………………………………………………………… c. THE SUBJECT ………………………………………………………. MODERNITY IN THE MARXISM MODEL ………………………………… a. TIME ……………………………………………………………….. b. HISTORY …………………………………………………………… c. THE SUBJECT ………………………………………………………. CONCLUSION: TOWARDS A STRUCTURAL JURISPRUDENCE ……………...

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I. INTRODUCTION: THE RHETORICAL FUNCTION OF ‘MODERNITY’ In its literature, the adjective ‘modern’ is typically inserted as a preface to the discipline of international law – ‘modern international law’. The rhetoric of modernity within the discipline, in turn, generally designates a liberal posture towards governance, both in terms of describing the nature of conflicts facing transnational regulation and offering solutions in relation through international law. These critical evaluations and normative assessments within the literature are furthermore supported by juxtaposing themselves against what is not modern – whether that means to assert a former period, which is ‘pre’ or ‘early’ modernity, to situate particular actors or ideological predispositions as ‘barbaric’ or ‘anti’-modern, or even to claim that the cosmopolitan project of international law is still trapped within a colonial, or culturally biased, legacy. Though there are multiple variations to the story of ‘modernity’, the general narrative grounds the discipline in a timeline that begins with religion, passes through philosophy, and culminates with policy in the contemporary world.2 Regardless of the particular field of interest,

See David Kennedy, Images of Religion in International Legal Theory, in Mark Janis and Carolyn Evans (eds.), RELIGION AND INTERNATIONAL LAW 145, 146(1999)(hereafter, RELIGION AND INTERNATIONAL LAW). “Religion begins as a social force, is transformed into a ‘philosophy’ and survives only as a set of ‘principles’, guiding the practice of institutions… International law inherits principles from religion, is born of chaos, is refined by philosophy, tried by war and confirmed as an institutional response to military sacrifice.” Id. at 146. 2

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international law is associated with a set of actors, institutional habits and ideas, which chart a remarkably similar trajectory. In terms of methodological orientation, for example, the discipline moves from natural law, to positive law, to some fragmented landscape that blends socioempirical data with quasi-scientific, pragmatic expertise.3 Likewise, in political-economic studies of international law, the narrative plotline originates in a hierarchical model led by the Church and Emperor within Europe that is tied to an agrarian feudal structure of production and status, transitions to an emerging ‘international’ order of formally equal European 'nation-states' that are themselves bound up in colonial expansion and nascent industrialization, before undergoing yet another seismic change in the aftermath of the World Wars in the 20th century to emerge a democratic, liberal regime of international law attuned to the individual and community rights, and seeking to manage and promote an increasingly dense and interlocking global order of finance and production.4 Christianity (like ‘empire’ or ‘imperialism’) is associated, at its worst with 'fanatical' and 'mystical' tendencies buried deep in the human disposition, and is at best relegated to the private domain as a means of more fulfilled personal experience or to the public domain as a loose set of principles, such as 'human dignity', which are meant to modestly inform what is an essentially secular vision of governance and lawmaking.5 This momentum can be retold through any number of lens, its central thesis that the discipline - as part of a broader story of how humankind (or at least the 'Western' world) dropped its metaphysical approaches to governance, and adopted instead a more rigorous anthropomorphic and empirically-grounded practice – all of which comes to be linked to an idea See Arthur Nussbaum, A CONCISE HISTORY OF THE LAW OF NATIONS (1947). Authors often see this as both a cause of celebration (particular, the loss of a quasi-metaphysical jurisprudence rooted in hierarchical structures of power), and a source of deep anxiety to the extent that the discipline becomes a handmaiden to powerful interests. See e.g., Thomas Baty, INTERNATIONAL LAW IN TWILIGHT (1954); David Kennedy, Losing Faith in the Secular: Law, Religion, and the Culture of International Governance, in RELIGION AND INTERNATIONAL LAW 309, 316 (1999); Martti Koskenniemi, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960 (2002); Martti Koskenniemi, The Lady Doth Protest Too Much: Kosovo, and the Turn to Ethics in International Law, in THE POLITICS OF INTERNATIONAL LAW 112 (2011). 4 See e.g., William Grewe, THE EPOCHS OF INTERNATIONAL LAW 167 (English ed., 2000); see also Antony Anghie, IMPERIALISM, SOVERIGNTY AND THE MAKING OF INTERNATIONAL LAW (2004); Istvan Hont, JEALOUSY OF TRADE: INTERNATIONAL COMPETITION AND THE NATION STATE IN HISTORICAL PERSPECTIVE (2005) 5 See e.g., Richard Falk, RELIGION AND HUMANE GLOBAL GOVERNANCE 35-36, 55 (2001). 3

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of ‘authenticity’ or ‘liberation’, whether that be intellectual, moral or political. To be 'reasonable' or 'serious' nowadays when crafting normative policies or mediating disputes, in other words, is to accommodate the spectrum of religious belief to the extent that its 'absolutist' or 'metaphysical' tendencies remain privately contained, and its public components are secured within consciously identified 'identity' politics or formal principles. More specifically in relation to modernity, to be ‘modern’ in international law means an attention to the ‘subjective’ limitations on knowledge, an acknowledgement of the necessary but conflicting relationship between ‘interests’ and ‘sociability’, and an awareness of the complexity that makes up global governance today – all of which is juxtaposed again a past that is remembered as coercive and naïve in its thinking about the analysis and management of international legal dynamics.6 The word itself, in this way, feels Victorian: a stand in for some personal and professional notion of ‘civility’. In recent decades, however, the reliance on the 'secularization' narrative - and more generally, 'to be modern' - has broken down across disciplinary fields to call into question the methodological certainty of academia and policy making. First, the resurgence of religious affiliation after the fall of the former Soviet Union within domestic and international spheres of law and governance has undermined a state-centric framework: religion is 'transnational' (e.g., identity no longer tethered firstly to a state or nation affiliation) and asserts 'non-materialist' legal and political rights (e.g., headscarves). To be ‘modern’, in this new sense, would mean to approach global governance as ‘post-secular’, whether in terms of understanding socio-cultural contexts or accommodating and formulating the terms of political compromise.7 Second, in

See Kennedy, supra note 3, at 316; see also Review Essay Symposium, Philip Allott’s Eunomia and The Health of Nations – Thinking Another World: This Cannot Be How the World Was Meant to Be, 16(2) European Journal of International Law 255 (2005). 7 See e.g., Peter Danchin, Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law, 33(1) Yale Journal of International Law 1 (2008); see also Christopher Borgen, Triptych: Sectarian Disputes, International Law, and Transnational Tribunals in Drinan’s Can God and Caesar Coexist?, 45 Journal of Catholic Legal Studies 11 (2006); Marco Sassoli, Transnational Armed Groups and International Humanitarian Law, Humanitarian Policy and Conflict Research Occasional Paper Series (Winter 2006), available at http://www.hpcrresearch.org/sites/default/files/publications/ OccasionalPaper6.pdf. In politico-legal academic circles, these (‘post-secular’) trends have led many scholars to 6

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response to 'post-secularism', scholars have questioned the mantra that Western-oriented ideas and institutions over governance are actually 'secular', or ever have been.8 In this view, law has always been connected to religion, because religious experience or faith is intrinsic to the human condition. Some scholarly celebrate this renewed appreciation for the spectre of religion as an opportunity to return to a particular set of values, or heritage, or at least acknowledge the deep normative commitments and religious origins of international legal doctrine.9 Other scholars approach the re-emergence of religion warily or in a spirit of compromise that takes those principles that are universal and drops its cultural or superstitious excesses.10 Still other scholars refrain from any value-assessment of these transitions, in favour of more theoretical-coloured investigations that focus on the ways that religious terminology may be analogized to the conceptual framework of contemporary politico-legal regimes – in other words, though the content changes, the forms themselves remain strikingly static (e.g., God is replaced by the state, the scriptures are replaced by the law, the priest replaced by the lawyer, the body of the church is replaced by the national polity, and so forth).11 These new forms of literary engagement with religion in the context of what ‘modernity’ means to international law has in turn necessitated engagement with new 'players' within international law (e.g., non-state religious groups) that begin replacing ‘international law’ with ‘transnational law’. See e.g., Craig Scott, ‘Transnational Law’ as Proto-Concept: Three Conceptions, 10 German Law Journal 859 (2009). 8 This line of critique originated and extends across a number of disciplines outside international law, particularly in political philosophy, religious studies, and theology. See e.g., Anthony Paul Smith and Daniel Whistler (eds.), AFTER THE POSTSECULAR AND THE POSTMODERN: NEW ESSAYS IN CONTINENTAL PHILOSOPHY OF RELIGION (2010); see also Hent de Vries and Laurence O’Sullivan (eds.), POLITICAL THEOLOGIES: PUBLIC RELIGIONS IN A POST-SECULAR WORLD (2006); Charles Taylor, A SECULAR AGE (2007). 9 “Western man is undergoing an integrity crisis – the kind of crisis that many individual men and women experience in their early fifties when they ask themselves with utmost seriousness, and often in panic, what their lives have stood for and where they are headed. Now we are asking that question not only as individuals but as nations and as groups within nations. Our whole culture seems to be facing the possibility of a kind of nervous breakdown … What makes this an integrity crisis rather than some other kind of crisis is precisely its relation to the loss of confidence in religion and in law… Torn by doubt concerning the reality of those values that sustained us in the past, we come face to face with the prospect of death… By thinking of law solely in terms of its efficiency, we rob it of that very efficiency. By failing to give enough attention to its religious dimensions, we deprive it of its capacity to do justice and possibly even its capacity to survive.” See Harold Berman, FAITH AND LAW: THE RECONCILIATION OF LAW AND RELIGION 1-5 (1993); see also Harold Berman, LAW AND RELIGION, Vol. 1 1-44 (1983); Samuel Huntington, THE CLASH OF CIVILIZATION AND THE REMAKING OF WORLD ORDER (2011). 10 See Jurgen Habermas, Pre-Political Foundations of the Democratic Constitutional State?, in Jurgen Habermas and Joseph Ratzinger, THE DIALECTICS OF SECULARIZATION: ON REASON AND RELIGION (2006). 11 See Carl Schmitt, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY (2006).

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force the disciplinary literature to adapt and justify existing legal doctrines and methodological approaches that have as yet resisted consensus. These challenges to the traditional liberal secularist hypothesis are further accentuated in the wake of the 'financial crisis' and the increasing appreciation of the dangerous environmental consequences stemming from industrial production and consumer-centric lifestyles, which together have reinvigorated ambivalences and/or hostilities towards 'liberal capitalism'.12 Rather than initiate the 'end of history' in favour of some (secular) neoliberal triumphantalism, the end of the Cold War seems now to have sparked a series of events that undermine the foundational thinking of global regulation. Economic inequality and religious passion are front and centre in international legal scholarship and governance talk. If a liberal style of capitalism disciplined the excesses of religion and Marxism in the 20th century, in other words, international legal scholars today find the trend reversed - in the Western world, at least, the spectre of religion and left wing political ideologies loom at the horizons of the discipline, challenging again what it means to practice or think of a 'modern' international law. We as a profession may have thought ourselves done with the past, but increasingly find that the past is not done with us. In this paper, my interest is not to take up any pressing dispute currently at play on the internal scene, but instead to step back and consider how each of these three traditions that constitute ‘modernity’ conceptualize the profession’s methodological and theoretical assumptions about ‘time’, ‘history’, and ‘the subject’ in relation to the historic and contemporary status of international law. The analysis is premised on at least two hypotheses. First, that it is impossible to think ‘modernity’ in contemporary international legal scholarship without addressing these three traditions. All too often today, scholars (and the public at large) only There is seemingly no end to the literature analysing the impact and reasons for the ‘crisis of capitalism’ in the wake of the 2008 financial downturn. See e.g., Jan Toporowski, WHY THE WORLD ECONOMY NEEDS A FINANCIAL CRASH AND OTHER CRITICAL ESSAYS ON FINANCE AND FINANCIAL ECONOMICS (2010); see also Dani Rodrik, THE GLOBALIZATION PARADOX: DEMOCRACY AND THE FUTURE OF THE WORLD ECONOMY (2012); Joseph Stiglitz, THE PRICE OF INEQUALITY: HOW TODAY’S DIVIDED SOCIETY ENDANGERS OUR FUTURE (2013). However, the dynamics of the contemporary world economic system were widely theorized in the years prior to the 2008 crisis, though often without the same level of urgency. See e.g., Immanuel Wallerstein, WORLD-SYSTEMS ANALYSIS: AN INTRODUCTION (2004). 12

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speak within their own privileged orientation: secular sensibilities clash with religious beliefs, liberal or conservative political ideologies are viewed as incommensurate with more radical leftwing perspectives, and so forth. This situation is not only a potentially dangerous state of affairs in relation to the necessity of dialogue within the model of democratic society, but from a theoretical standpoint is also deeply unfortunate, as there is more to gain than lose from understanding the internal logic of different positions. Second, a close study of the internal logic to each tradition emphasizes not only differences, but also similarities, which constitute the modern sensibility of the discipline – and my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.13 Thus, this paper is an invitation to explore our conceptions of ‘modernity’ in relation to international law in an effort to ‘take seriously’ each of its constitutive traditions, not only in terms of their substantive claims, but perhaps more importantly, to hold on to their promise that some ‘other worldly’ possibility is open to us that can overcome the quiet cynicism of our contemporary sensibility towards governance and those that do not share our normative predispositions. The paper takes up each tradition in turn – Christianity, Liberalism, Marxism – and explores their dimensions in relation to three themes (history, time and the subject) in relation to the logic of contemporary international law.

III. MODERNITY IN THE CHRISTIAN MODEL II.A. HISTORY In Christianity, history is the name of humanity struggling for freedom from the world.14 This struggle for freedom takes two forms: first, to have dominion over the world, and

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For an analysis of the constitutive relationship between Christianity and Liberalism in a historic context, see John D. Haskell, Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law, 11(3) Chinese Journal of International Law 429 (2012). 14 See Jacob Taubes, OCCIDENTAL ESCHATOLOGY (2009). “Revelation of the world and revelation of God is in its precise sequence only a story, like a spark jumping from pole to pole: the unveiling of mankind. The story aims at union with God… The world was created for the express purpose of revealing freedom. God’s totality should become world, so that in freedom God may be all in all… The difference between the thesis of the

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second, to escape the fallen nature of the world – what might generally be called ‘salvation’.15 In both forms of the struggle for freedom, the goal is not to fundamentally change the world, since it is inescapably fallen as a result of sin. 16 Since the world cannot be itself redeemed by humanity, the goal stands to block the operations of the world from interfering in the private lives of the individual struggling towards salvation. In other words, the struggle for freedom in terms of domination over the fallen world is not to fight oppression but ‘interference’.17 This interference is itself conceived as a paradox. On the one hand, the divine calling requires believers to submit to the will of God, which in turn necessitates the believer vigilantly keep the world at bay. On the other hand, as a result of humanity living in a fallen world, the believer is drawn from this close relationship with the divine back into the everyday world, symbolized in the commandment of God to Adam to cultivate the land for sustenance as punishment for sin.18 Here, we can see the emergence of two distinctions: the public/private and the ideal/actual. In regards to the public/private, within Christianity, the distinction emerges between an ‘outside’ fallen world, which must be engaged with to the extent it serves an ‘inner’ personal authenticity omnipotence of God and the synthesis, that God may be all in all, is the principle of freedom. The gap between thesis and antithesis reveals the principle of freedom as history… in freedom God may be all in all.” Id. at 15. 15 Id. at 9-21. Freedom embodies two counter-veiling truths that exist simultaneously in the life of the Christian believer. On the one hand, freedom is focused on the promise and its fulfilment in the stars, whereby the believer is an exile to the world. In the Old Testament, this ‘dark’ side to salvation is found within the narrative of the Jewish people wandering in the desert for forty years in search of the Promised Land. Likewise, in the New Testament, exile or estrangement from the affairs of the world occurs in the teachings of Jesus Christ and St. Paul. Christ calls upon the faithful to separate their responsibilities to God from those of the world, and to not lose sight of the hope in a destiny ‘not of this world’. In the same vein, St. Paul counsels that the tribulations of this world are inconsequential in the spectre of ‘life in Christ’. Id. at 21. On the other hand, though the believer is an exile in this life, there is the regular commandment to be a good steward of the earth and to act responsibility within their given role in this life. Id. 16 The doctrine of the ‘fall’ and ‘original sin’ were first incorporated as dogma within the Christian faith with the theology of Augustine of Hippo. For a discussion of ‘original sin’, see J.N.D. Kelly, EARLY CHRISTIAN DOCTRINES 163 (1978); see also Russell J. DeSimone, Modern Research on the sources of Saint Augustine’s Doctrine of Original Sin, 11 Augustinian Studies 205-227 (1980). 17 An analogy may be drawn to the international legal concept of ‘sovereignty’ in terms of ‘self-determination’ and ‘immunity’ to the extent that the state is afforded complete autonomy within its internal borders, and conversely, is encouraged to not only develop its internal capacities, but to refrain from infringing on the formal right of other states to do the same. For a discussion of the international legal personality of states, see James Thuo Gathii, International Law and Eurocentricity, 9 European Journal of International Law 184 (1998; see also Antony Carty, International Legal Personality and the End of the Subject, 6 Melbourne Journal of International Law 534 (2005). 18 For a historical discussion of this topic in the context of international law, see Martti Koskenniemi, International Law and the Emergence of Mercantile Capitalism: Grotius to Smith, Working Paper for the Institute for International Law and Justice Colloquium Spring 2012, available at http://iilj.org/courses/documents/koskenniemi-with-cover.pdf; see also Richard Tuck, THE RIGHTS OF WAR AND PEACE: POLITICAL THOUGHT AND THE INTERNATIONAL ORDER FROM GROTIUS TO KANT 34, 105, 183, 216 (1999).

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or space that itself must be preserved from the ‘outside’ world’s influence. The public (fallen world) is conceived to serve the private (inner world), and the private is attached to an idea of authenticity that exists within but is nevertheless detached from the outside world. A similar distinction is developed according to the juxtaposition of a perfect and fallen world, which might more generally be expressed in terms of ‘ideal’ and ‘actual’. This formula depicts the ‘ideal’ as a quasi-transcendent space that does not rely on proof in the ‘actual’ world, but nevertheless serves as the source of aspiration, reform and salvation. The fact that the ‘actual’ world is inherently imperfect, therefore, does undermine the ‘ideal’ world, but reinforces the ‘ideal’ world’s legitimacy as the measuring stick of assessing the failures of the ‘actual’ world – the very notion of imperfection in the ‘actual’ world could only be felt if there was a standard of perfection to apply.

This tension between the ‘ideal’ and the ‘actual’ (perfect/imperfect) and the

public/private (outer/inner) is in turn mediated by the conscience of the individual and the laws of society. II.B. TIME The struggle for freedom through an escape from the world introduces the concept of ‘time’ in relation to history within the Christian tradition. Humans exist within time, God exists outside of time in the realm of eternity. The crucifixion and resurrection of Jesus Christ brings the eternal into time/history, though this event is not the only occurrence of the divine immanent in secular linearity.19 In the Old Testament, for example, Moses is given the law directly by God on a mountain, which structures the very geography and roles within the nascent Jewish people (e.g., it is kept in the ‘Holy of Holies’ within the Temple, it is mediated through the High Priest and the priesthood of the Levites).20 Likewise, in the New Testament, the gospels of the disciples and the epistles of St. Paul are viewed as divinely inspired, the Word of God made flesh.21 In a similar light, the Catholic doctrine of the ecclesia held there was a space See Stanislas Breton, A RADICAL PHILOSOPHY OF ST. PAUL 142-154 (English ed., 1988). See Exodus 32:25-30, in THE NEW KING JAMES BIBLE, available at www.biblegateway.com. 21 See John 1:1, in THE NEW KING JAMES BIBLE, available at www.biblegateway.com. 19 20

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between heaven and earth where angels and past generations of believers dwelled, and which was manifest in history through the institution of the Church.22 In each instance, the role of the believer is to first identify the location of the eternal, and then to submit to its authority – whether that is in terms of belief (e.g., to believe in the resurrection of Jesus as ‘the Christ’, the sacrificial ‘Lamb of God’ offering himself as payment for the sins of humanity) or institutions (e.g., for Protestantism, the ‘Word of God’, for Judaism, the ‘Law’, for Catholicism, the ‘Church’). Here again, the world is seen as something outside of the private space of the individual believer, and a place to keep at bay, to keep from interfering in the Christian’s daily walk toward salvation through their participation in the eternal manifest in time. The interruption of time by the divine/eternal allows for believers to momentarily escape time (through participation in the divine within time), which operates in a messianic register: the necessity to return into the public/fallen/temporal world in the wake of personal communion with the divine/eternal signals both the not-completeness of the current moment (we must continue to wait for the messiah whom has not yet returned), as well as the promise that there is a positive totality to existence in time that is sustained and encapsulated within and by some great force (e.g., God), which may work in mysterious ways but is nevertheless really there, at work, providing a reason or cause (even if unknown) for every effect.23 There is a reason for everything, and beneath chaos exists an order of existence. At this point, Christianity appears to split into two distinct predispositions. On the one hand, the limited but real experience of divinity within time (whether on a personal or institutional level), opens us to a realization of the divinity within humanity, and the possibility of creating the Kingdom of Heaven on Earth.24 This is the Christian doctrine of post-millennialism, which does not drop the promise of

See Jens Bartelson, A GENEALOGY OF SOVEREIGNTY 101-102 (1995). For a discussion related to many of these themes, see generally Benedict Spinoza, ETHICS, Book I (English ed., 2005). 24 Post-millennialism became a form of orthodoxy in 19 th century liberal Protestant theology. For a discussion of the doctrine in general, see W. Michael Ashcraft, Progressive Millennialism, in Catherine Wessinger (ed.), THE OXFORD HANDBOOK OF MILLENNIALISM 45 (2011). For a more general discussion of liberal Protestant theology, see William Hutchison, THE MODERNIST IMPULSE IN AMERICAN PROTESTANTISM (1992). 22 23

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the messiah’s return, but makes it an immediately immanent event whereby the violence of the end of times (eschatology) is circumvented or postponed, but history (the collective experience of humanity) is able to fully break through time into the eternal. On the other hand, the doctrine of pre-millennialism holds that the end of history and time will only end in an apocalyptic series of events beginning with the 7 year tribulation followed by the return of the messiah and the divine judgment whereby the world is purified in the lake of fire and death/time is abolished.25 In both scenarios, however, time is sustained by the certainty of reason and the possibility of transcendence, even if such reason is beyond our understanding and transcendence is elusive. Here, debates instead center on where we locate or identify these moments and sources of divine truth and how we are able to mobilize this transcendence. II.C. THE SUBJECT By ‘the subject’, I mean the formal depiction of the main protagonist within the literary tradition, or perhaps more accurately stated, the assembled personality that the literature is directed ‘at’, or ‘to’, or ‘for’. In the Old Testament understood by Christian doctrine, the subject is classified by the distinction of chosen (Jewish) and un-chosen (Gentile), and all within the system of a fallen world where one is radically separated from God in a fallen world. The linkage between God and the chosen exists in the choice to submit to the divine law given to Moses, but there is no necessary promise of an afterlife, no escape from the ravages of time and sin – there is only the promise, in this world, of the possibility of escaping external tragedies, whether that be political oppression from foreign powers or natural disasters sent from above.26 The law is the privileged medium whereby humans partake in the presence of God and find solace from worldly disorder and suffering. The central image, in other words, of the Old Testament is the rule of law. See e.g., Jurgen Moltmann, THEOLOGY OF HOPE: ON THE GROUNDS AND IMPLICATIONS OF A CHRISTIAN ESCHATOOGY 32-36 (1968); see generally Catherine Wessinger (ed.), THE OXFORD HANDBOOK OF MILLENNIALISM 45 (2011). 26 The uncertainty of any Christian election to the afterlife was a long-standing debate in the 16th and 17th centuries between Calvinists and Armenians. For a concise discussion of these themes, see Alister McGrath, CHRISTIAN THEOLOGY: AN INTRODUCTION 365-368 (2011). 25

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In contrast, in the New Testament, the idea of ‘history’ leads us to think of this subject most generally as not simply ‘chosen/un-chosen’ but rather as a collective ‘fallen humanity’. The old distinctions that were maintained through the Jewish law are collapsed into a common, universalized situation of all people.27 The idea of ‘time’ further qualifies this subject, not merely the fallen human(s) but the fallen human that is capable of transcendence, both in a momentary (within time, e.g., through prayer, divine immanence) and absolute sense (beyond the end of time, e.g., salvation, eternal life). This subject is determined and determining. On the one hand, as children of original sin where its wages are death, the subject is faced with a universal dilemma that they did not initiate but are nevertheless bound – namely, what Paul would discuss as the ‘sin nature’, or ‘the flesh’.28 Born into a corrupted world, humanity inherits this corruption regardless of whether or not it was earned.29 On the other hand, the subject enjoys the emancipatory capacity of freedom through their unrestricted access to choose whether or not to submit to the will of God: to partake in the hedonism of the flesh or undergo the trials towards a transcendence not of (even if within) this world. No longer is the subject defined by submission to the law; rather, inclusion in salvation is now an act of ‘dying with Christ’, and in doing so, giving up the ‘old nature’ to be resurrection as a ‘new man’ that not only lives ‘like’ Christ, but that is fully subsumed into the figure of Christ, to be lived through or by the messiah. 30 The ruling image of the New Testament is not the black letter of the law, but now the spirit of the law manifest through everyday practice and subjective reflection. Christianity, therefore, provides two competing (though not necessarily contradictory) versions of the subject. Especially in terms of original sin, humanity is comprised of persons that are born into and are part of a corrupted ‘natural’ world, which is pre-political/pre-human and without any overarching structure. The choice to ‘be crucified with Christ’ is made in what seems almost a ‘state of nature’, encumbered only by one’s free will and the limitations of See Galatians 3:28, in NEW KING JAMES BIBLE, available at www.biblegateway.com. See Romans 6:23, in NEW KING JAMES BIBLE, available at www.biblegate.com. 29 See DeSimone, supra note 20, at 205-227 (discussing the Augustinian notion of ‘original sin’). 30 See Galatians 2:20, in NEW KING JAMES BIBLE, available at www.biblegate.com. 27 28

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knowledge inherent to all but God. But, at the same time, the subject is determined by a system or order of being that is organized after creation: in the Old Testament, through the acceptance of the law; in the New Testament, through submission to the figure of Christ, which overcomes the previous order of the law to introduce a ‘new man’ that will demand a very different framework of being even though, on a purely empirical or material level, the subject is still living within the natural, fallen world.31 Christianity takes seriously the ‘structure’ of being, even while allowing this structured subject to exist within a broader naturalized framework. In other words, though the authentic dignity of the self is manifest, the self is not shaped ex nihilo, but the work or subject of an already existing system with established rules.

III. MODERNITY IN THE LIBERAL MODEL III.A. HISTORY The concept of ‘history’ in Liberalism, as explained in the mainstream literature of international law, depicts the slow progress of humanity from primitive organization and superstitious knowledge to highly complex networks of organization and technological expertise. Just as modern strands of Christianity mark out a linear narrative of history, in this account, international law marches towards greater awareness and inclusion: from religion to philosophy to pragmatic policy meant to benefit the material and emotional lives of populations, and which draws people together in a regime of institutionalized interdependence:

In the long march of mankind from the cave to the computer a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it can be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelt out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to 31

For a general discussion of these themes, see generally Breton, supra note 25.

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pursue commonly accepted goals, whether these are hunting animals, growing food, or simply making money. Law is that element which binds the members of the community, together in their adherence to recognized values and standards… And so it is with what is termed international law, with the important difference that the principle subjects of international law are nation-states, not individual citizens.32 Moreover, many components and inferences found within the Christian tradition again surface in the logic of international law: dominion, interference/freedom, and public/private, which is perhaps not surprising as the early modernist jurists of the 16th to early 19th centuries were directly influenced by theological discussions, often themselves writing on Christian doctrine or operating directly within Christian institutional frameworks (e.g., Suarez, Vitoria, Grotius).33 In early international legal thought, the idea of dominion was central to marking out at least two terrains: first, the public and the private (government/charity and the economy/sustenance), and second, the secular and the sacred (emperor and the Church).34 The basic notion here was that God had donated the whole of the earth to humanity in common, but with the fall of Adam and the curse of toil and labour, humanity – as having free will over the dominion of the earth – could reorganize their ‘property’ and create new political alliances between themselves.35 Freedom as dominion over themselves and the world allowed for the redivision and organization of the fallen world. In terms of the public/private divide, the role of the state thereby came to be seen increasingly to protect the private free will of individuals over their dominion, much like in international law, where the role of law was to ensure the jurisdictional integrity, and more importantly, the mutual free will of states to engage one another

For an in-depth study about the ‘progress narrative’ within international law, see Thomas Skouteris, THE NOTION OF PROGRESS IN INTERNATIONAL LAW DISCOURSE 104 (2009)(quoting Malcolm Shaw); see also Nathaniel Berman, In the Wake of Empire, 14 American University International Law Review 1515 (1999). 33 See David Kennedy, Primitive Legal Scholarship, 27 Harvard International Law Journal 1 (1986). 34 See Giovanni Arrighi, THE LONG TWENTIETH CENTURY: MONEY, POWER AND THE ORIGINS OF OUR TIMES (2010); see also Bartelson, supra note 28; Berman, LAW AND RELIGION, Vol. 1, supra note 9; Ernst Kantorowicz, THE KING’S TWO BODIES: A STUDY IN MEDIEVAL POLITICAL THEOLOGY (1957); Richard Tuck, NATURAL RIGHTS THEORIES: THEIR ORIGIN AND DEVELOPMENT (1979). 35 See Martti Koskenniemi, International Law and the Emergence of Mercantile Capitalism: Grotius to Smith, Working Paper for the Institute for International Law and Justice Colloquium Spring 2012, available at http://iilj.org/courses/documents/koskenniemi-with-cover.pdf. 32

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(non-interference) – albeit within certain agreed upon co-ordination.36 Freedom, as the essential character and necessity of humanity, is focused on the idea therefore of individual noninterference over property and exchange from any redistribution efforts whereby the ‘original’ distribution of assets is de-politicized, and property is seen as a relationship between individuals and things (e.g., the world to cultivate), rather than relationally as between people.37 To the extent that inequality results, this is explained away (like in Christianity) as the result of the world’s imperfection and the irresponsible/irrational acts of actors.38 Any attempt to ‘right’ the distribution of the status quo is thus designated as an act of ‘moral charity’ (since the distribution of assets is de-political, and almost operating in the realm of the ‘sacred’), whether framed in terms of a moral responsibility to provide incentives and care for the less fortunate or as a more gratuitous act, which must be always juxtaposed against the necessity of free will/noninterference. III.B. TIME At first glance, liberal interpretations of time look radically different from their Christian counterparts within international law. First, international law is situated as the response to the decline of metaphysical belief: the laws no longer grounded in an ultimate rule-maker who sustains the world, humans as the ultimate source of politically enforced laws, and more generally, the secular liberal ethos that espouses an attitude of tolerance and inclusion to conflicting beliefs.39 Second, as time now appears de-mystified, its primary function serves to mark out the various events and epochs of history, to chart the evolutions and mutations of the For a thorough discussion of this theme in relations to individuals and government, see Ellen Meiksins Wood, LIBERTY AND PROPERTY: A SOCIAL HISTORY OF WESTERN POLITICAL THOUGHT FROM THE RENAISSANCE TO ENLIGHTENMENT (2012). For a sustained examination of this theme in relation to states, see Hont, supra note 4. 37 For a theoretical discussion on this point, see Morris Cohen, Property and Sovereignty, 13 Cornell Law Quarterly 8 (1928-1929). 38 This rationalization may be explained in at least two ways. First, especially within more conservative international legal theory and in mainstream international relations, inequality is premised as the necessary consequence of inherently diverse state interests. See e.g., Jack Goldsmith and Eric Posner, THE LIMITS OF INTERNATIONAL LAW (2006). Second, more progressive scholars, while often divorcing themselves from any ‘utopian’ vision, argue against these disparities of power as the consequence of ‘imperialism’, which is usually theorized as the consequence of the natural urges towards power. See e.g., Anghie, supra note 4. 39 See e.g., Martti Koskenniemi, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT (2006). 36

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ideas and institutions of individuals and populations.40 Third, there is no conception of a final judgment, or an ‘end of days’; rather, time continues regardless of humanity, the environment of all existence.41 Finally, time is relativized and linked to human experience, no longer allowing for a framework to discuss things in-themselves but only the varied perceptions of things.42 However, the logic behind the theological motif of time is traceable in important ways within international legal theory. First, international law tends to adopt a weak version of pre and post-millennialism. On the one hand, in the concept of ‘the end of History’ or its more fascist/imperialist counterpart, the hegemon that stands in for all humanity to sustain the law posits a fundamental break that amounts to an almost divine rupture into history whereby time enters into a state of permanence that freezes human ideas and relations.43 On the other hand, more progressive versions within international law oppose hegemony as a modern false prophet by emphasizing the nature of radical indeterminacy and mutation to not only laws but also people, things and ideas, yet only at the expense of taking on the idea of the world as imperfect – or to state this in Christian terminology, as fallen.44 In the wake of the knowledge that there is For an explanation of this point, see David Kennedy, International law and the 19th Century: History of an Illusion, 65 Nordic Journal of International Law 385, 386-387 (1996). For examples of this tendency, see Mark Mazower, NO ENCHANTED PALACE: THE END OF EMPIRE AND THE IDEOLOGICAL ORIGINS OF THE UNITED NATIONS (2009); see also Anne Orford, INTERNATIONAL AUTHORITY AND THE RESPONSIBILITY TO PROTECT (2011); Balakrishnan Rajagopal, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD RESISTANCE (2003). 41 For an entertaining critique (which is now widely shared by those outside the neo-conservative theory camp) against the wave of international relation theorists and lawyers, such as Anne-Marie Slaughter and Francis Fukuyama announcing the ‘end of history’ in the wake of the former Soviet Union, see Perry Anderson, Inside Man (The Nation, April 24, 2006). 42 There is no time outside of subjectivity, so that what might appear the collapse of global society into anarchy for one spectator is for another the dawn of positive transitions and growth for international society. For a historical study into the rise of subjective rights in international law, see Annabelle Brett, LIBERTY, RIGHT AND NATURE (1997). In many respects, this idea is built into the 18th century politico-economic theory of ‘competitive advantage’. See e.g., Roberto Unger, FREE TRADE REIMAGINED: THE WORLD DIVISION OF LABOR AND THE METHOD OF ECONOMICS 25-76 (2010); see generally Hont, supra note 4. 43 For a sustained theoretical argument of this position, see Schmitt, supra note 11. Certain strands of neoliberal and neo-conservative thought within international law and global governance fall into a ‘soft’ form of this argument, positing that ‘liberal’ countries are designated a ‘mission’ to advance their normative agendas for the betterment of international society. See e.g., Francis Fukuyama, THE END OF HISTORY AND THE LAST MAN (1992); see also Anne-Marie Slaughter, A NEW WORLD ORDER: GOVERNMENT NETWORKS AND THE DISAGGREGATED STATE (2004); G. John Ikenberry, Thomas Knock, Anne-Marie Slaughter and Tony Smith, THE CRISIS OF AMERICAN FOREIGN POLICY: WILSONIANISM IN THE TWENTY-FIRST CENTURY (2008); John Yoo, CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH (2010). 44 This idea is replete across academic disciplines under a variety of terminologies: in theology as ‘negative theology’, in philosophy as ‘radical indeterminacy’, in international relations as ‘the theory of lack’, and in law, under a variety 40

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no perfect world to come, the progressive strand holds out liberalism as the ‘best of all possible’ scenarios, albeit as a fragile consensus, and while still prone to tragedy, its essential ideas and institutions ultimately beyond radical contestation. The best of all possible worlds is in the here and now, the goal being its perpetual perfection that encourages fraternity, liberty, and formal equality under the reign of the law. Second, and more interesting I think, more critical perspectives within international legal theory operate within a messianic logic.45 At the most superficial level, the Christian notion of sacrificial violence to mark out the birth of new epochs in law is prevalent within the memorabilia of moments that the discipline uses to explain its development: 1648, 1919, 1945, 9/11, and so forth. That violent disruption opens up institutional space for reform and revolution seems logical, but what is more curious is the choice of which events, or rather what type of actors, inaugurate the moment of sacrifice (which, I will discuss in more detail in the next section). On a more theoretical level though, the messianic logic functions to frame the required attitude of legitimacy in governance and to sustain certain institutional ideals from radical adaptation. When confronted with the limits of its conceptual vocabulary (e.g., national selfdetermination, tolerance), the discipline moves in a spirit of ‘reform’ to justify the perceived failure by arguing that the ideas themselves are sound but only not yet fully realized, encouraging the participants and subjects within the international legal system to keep faith, to continue to struggle in the perpetual anticipation of its fruition.46

The argument for ‘emergence’ … promises [a future that] … is not fixed in particular institutions or identities; its utopia only shows a of guises, but perhaps most eloquently argued in America by David Kennedy, and in Europe, by Martti Koskenniemi. See e.g., David Kennedy, THE DARK SIDES OF VIRTUE: ASSESSING INTERNATIONAL HUMANITARIANISM (2005); see also Martti Koskenniemi, What Should International Lawyers Learn from Karl Marx?, 17(2) Leiden Journal of International Law 229 (2004); Mark Modak-Truran, Reenchanting International Law, 22 Mississippi College Law Review 263 (2003). 45 See Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 New York University Journal of International Law and Policy 471 (2003). 46 See Anne Orford, Human Rights After Faith – An Introduction to the ‘Cultures of Human Rights’ Symposium, 7 Melbourne Journal of International Law 1 (2006).

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horizon that recedes as it is approached… We remain, after all, free to act – and only by acting do we realize our freedom. International law is vindicated… as a completely open ended political project, a professional commitment to imagine different futures and to be ready to criticize whatever presenter there is… This is a messianic argument and a Christian vision. The fallibility of present society is taken for granted. So is the fallibility of the human beings that inhabit that society and the law they create out of their narrow vision. This is not a recipe for resignation, however, but rather a cause for joy and anticipation… And the call for proselytism follow naturally: ‘The liberation has begun, but it does not yet engage the majority of the world’s people.47

In this depiction of international law, while its vocabulary is admittedly steeped in contemporary political contestation, its essential form is pre-political to the extent that it is seen as a ‘formal’ promise (and hence, universal) across any political, legal, or other type of border. 48 This messianic form of argumentative justification relies on a strikingly metaphysical operation which is not immediately evident because with metaphysics fragmented into a seemingly endless multiplicity of beliefs, or subjectivities, each that must be afforded respect on the ‘private’ level, it seems self-evident that subjectivity is the antithesis to religious certainty or metaphysical presuppositions. Subjectivity, it is argued, may be the heir to our past faith in a transcendent order, but it only gained its ascendency by dethroning, or putting to death God. And yet, the rhetorical devise of ‘subjectivity’ (so important to the liberal ethos of ‘tolerance’ and ‘indeterminacy’) in fact preserves Christian thought in three important ways. First, the private/public distinction is maintained, whereby the ‘private’ demands almost unlimited protection so long as it does not attempt to capture the ‘public’ and remains a formal ideal that the public is meant to leave open to ‘self’-determination. Second, in preserving agnosticism towards ‘truth’ claims, liberalism maintains a certain quasi-transcendental truth about

See Koskenniemi, supra note 51, at 486. For a sustained argument of this ideal in terms of politico-legal governance, see Ernesto Laclau, EMANCIPATION(S)(1996). For this argument in a distinctly politico-theological register, see Ernest Laclau, On the Names of God, in POLITICAL THEOLOGIES, supra note 8, at 137. 47 48

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the order of existence. The problem of truth, following this logic, is not that there are no determined laws external to humanity or essential to the character of humanity, but the inability to fully perceive them in total. What remains here is thinking there is an ultimate reason behind things, which helps explain the easy tendency to slip back into some form of metaphysical belief.49 Third, and I will expand upon this more in the following section, in relation to establishing ‘the subject’ of international law, but in relation to ‘time’, what matters is how the historically situated ‘break’ into modernity through the phenomena of secularization (e.g., from natural to positive law, from metaphysical to sociologically oriented knowledge) posits subjectivity as the possession of each individual or institution (e.g., nation-state, culture), which is pre-political to the extent that while always subject to influence, is ultimately a formal character trait across time and geography, which operates as a type of Kantian categorical imperative, a transcendental limitation, to any claim:

[I]t underpins the historical process by evoking some quasitranscendental limitation, some quasi-transcendental a priori that is not itself caught in the contingent historical process… [and] thus ultimately leads to the Kantian distinction between some formal a priori framework and its contingent shifting historical examples… an ahistorical a priori Prohibition or Limitation which circumscribes every political struggle in advance.50

III.C. THE SUBJECT The subject of international law is a popular discussion within international legal theory – often posed as a question of ‘actors’ or ‘sources’. The literature on the subject is closely tied to the rehearsed story about the developing nature of the discipline, which slowly moves from law

See Quentin Meillassoux, AFTER FINITUDE: AN ESSAY ON THE NECESSITY OF CONTINGENCY 4663 (2006)(arguing that the “construing [of] the absence of reason inherent in everything as a limit that thought encounters” produces the secondary effect of thinking there is an ‘absolute’, but yet unknowable normative order to human existence). 50 See Slavoj Zizek, Class Struggle or Postmodernism? Yes, please!, in Judith Butler, Ernesto Laclau, and Slavoj Zizek, CONTINGENCY, HEGEMONY AND UNIVERSALISM: CONTEMPORARY DIALOGUES ON THE LEFT 109 (2000). 49

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being wrapped up in theological/philosophical discussion and solely focused on the movement of great states and powerful political actors (e.g., the subject of international law is the state) to the idea that law comes from and may be found within a variety of outputs and is now focused not only on states, but a diverse set of formal and informal actors (e.g., decolonized states, NGOs, individuals, multinational corporations, minority communities and cultures, and so forth).51 To be somewhat reductionist, contemporary liberal interpretations of international law emphasize two primary subjects: on the one hand, the state continues to be the most important unit of the profession; on the other hand, the ‘nation’, or culture, as well as the ‘individual’ are seen as the ultimate dynamics behind and motivation of international law. Rather than existing above or separate from ‘the people’, the state is the politico-legal manifestation of the people, whom themselves, like individuals, possess a loose, but in the best cases, cohesive personality that stretches over time and geography.52 Ideological predispositions will undoubtedly have an influence on the behaviour of the subject, but these ideas have – in keeping with the secularization of international law - been removed from the clouds through an anthropomorphic turn that emphasizes the necessity of ‘thick’ empirical research: whether that is in terms of collecting data, undergoing specific ethnographic observation, or analysing the actual sentiments of individual players.53 The more particular the focus of the researcher, the more ‘concrete’ their field of study; but conversely, what one gains in concrete or particular observation is lost in the ability to translate it into a universal description or interpret it against general (and by extension, increasingly more abstract) disciplinary trends of analysis.54

See e.g., Bob Clifford (ed.), THE INTERNATIONAL STRUGGLE FOR NEW HUMAN RIGHTS (2008). For a historical account of the development to this legal consciousness, see generally Koskenniemi, supra note 2; see also Nathaniel Berman, But the Alternative is Despair: European Nationalism and the Modernist Renewal of International Law, 106 Harvard Law Review 1792 (1993). 53 See e.g., Annelise Riles, Cultural Conflicts, 71(3) Law and Contemporary Problems 273 (2008). 54 This idea of the tension between the universal and particular is a long-standing and contemporary debate within international law. See e.g., Call for Papers: Universalism and Particularism in International Law, Interest Group on International Legal Theory of the European Society of International Law, Fifth Biennial European Society of International Law Conference (September, 2012), available at http://esiligilt.blogspot.com/2012/02/call-for-papersvalencia-workshop-2012.html. 51 52

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Though the subject within liberalism is significantly influenced by their environment, in whatever guise, it retains an element of authenticity, which intimates three further assumptions. First, that the subject manifests a pre-political or naturalized essence (e.g., human dignity). Second, possessing an ‘essence’, the subject becomes a justification for political authority (via protection of this ‘essence’). And third, that beneath the oscillations of historical trends, the subject is the ultimate ‘mover’ or dynamic agent of history. This essence is posited as something more than simply ‘consciousness’, bordering on a metaphysical certainty, and which operates to collapse both the specificity of historical moments and the structures of organization and production that mould the conditions of agents in any given circumstances. Often, this essence is girded in analogies to Christian imagery (e.g., under the rubric of ‘political theology’), and which either shows liberal conceptions of meaning to be the natural heir to Christianity, or to minimize the separation of Christianity and liberalism whereby political legitimations for various constructions of authority are given a quasi-metaphysical grounding that might answer the challenge that secular political orders are overly relativistic and lack the potential for naming any higher good than subjective ambition or desire.55 In this sense, though liberalism’s subject is born out of the proclaimed separation from religious faith, its logic might more easily be seen as an orientation built on constantly exploring the oscillation between what it sees as the phenomena of the secular and the sacred.56

IV. MODERNITY IN THE MARXIST MODEL IV.A. HISTORY

See e.g., Robert Bellah, Civil Religion in America, 96(1) Daedalus 1 (1967). For a more developed analysis through this approach, see Matilda Arvidsson, The Political Theology of International Law of Belligerent Occupation: Distribution of Authority and Fulfilment in Core and Peripheries, Conference Paper, international Law and the Peripheries Conference (Cairo, February 2012), available at http://works.bepress.com/matilda_arvidsson/23/; see also Martti Koskenniemi, International Law as Political Theology: How to Read Nomos der Erde?, 11(4) Constellations 492 (2004)(though not engaging with any actual theological literature). 56 For an argument that jurisprudential argument within the discipline is a form of international legal theology, see Haskell, supra note 13. For an intellectual history of how theological arguments were incorporated into the ‘secular’ philosophy of international politics, see Ludwig Gelot, ON THE THEOLOGICAL ORIGINS OF INTERNATIONAL POLITICS (2013). 55

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Like its counterparts, the Marxist tradition emphasizes the dynamic of dominion in human experience, but breaks with Christian and Liberal theory in several important aspects. First, though the link between dominion and property is still a central preoccupation within history, it replaces the notion of property as a relationship between individuals and things (e.g., ownership) with the inter-relationship between members of society over resources. “The character of property as sovereign power compelling service and obedience may be obscured for us in a commercial economy by the fiction of the so-called labour contract as a free bargain and by the frequency with which service is rendered indirectly through a money payment [as described by] … the classical view of property as a right over things,” explains the American legal realist, Morris Cohen, “[Rather], the essence of private property is always the right to exclude others. The law does not guarantee me the physical or social ability of actually using what it calls mine ... The law of property helps me directly only to exclude others from using the things that it assigns to me.”57 The right to dominion over property, therefore, does not create a guarantee of 'use', but rather the capacity to exclude others - in other words, the substance of the legal institution of property is that it legitimizes particular forms of coercion. Rather than operating outside the domain of the public, private property is thereby wholly political, defining the distribution of power within society over the conditions of production.58 Second, by collapsing the distinction between the public and private spheres, the idea of dominion as 'freedom from interference' (by the public) is reinterpreted as 'freedom from exploitation'. This new freedom is, furthermore, not of some abstract character (e.g., the fallen world, intolerance), but calibrated towards the specific form of political coercion found within capitalist economic production - namely, class warfare.59 In another sense, and more in keeping See Cohen, supra note 43, at 10. See Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38(3) Political Science Quarterly 470 (1923). 59 For examples of this perspective within international legal theory, see B.S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15(1) European Journal of International Law 3 (2004); see also China Mieville, BETWEEN EQUAL RIGHTS: A MARXIST THEORY OF INTERNATIONAL LAW (2005); Akbar Rasulov, The Nameless Rapture of the Struggle, in J. Klabbers (ed.), FINNISH YEARBOOK OF INTERNATIONAL LAW (2010). 57 58

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with the Christian post-millennial doctrine that humanity can perfect the world in history and the Liberal promise in capitalist production of ever-expansive markets and economic growth leading to increasing choice and comfort for global populations, freedom from exploitation in Marxist theory suggests that the reorganization of economic relations in a communist schemata will lead to more individual freedom over time (e.g., no longer needing to create surplus-capital), while rarely considering the possible ecological checks on industrialized society lifestyles.60 Third, embedding an analysis of dominion as not only a struggle, but a war, between the relations of production, Marxist theory suggests a radically different analytical model for deducing the forces and periodization through history.

On the one hand, the shift from

'struggle' to 'warfare' further dismantles the clear binary logic of not only public/private, but also the legal distinction between peace and war. On the other hand, beneath the interaction of state apparatuses (SAs), the turn to 'relations' of production opens up an almost endless multiplicity of what Louis Althusser describes as 'Institutional State Apparatuses' (ISAs), which operate within a given economic structure ('determined in the last instance by the economy'), but are also often capable of preserving their own internal logical consistency and even affecting the overarching system.61 In this scenario, the creation/demise of a state or a reorganization of the modes of subsistence within a given system does not necessitate a corresponding change within and across the diverse ISAs that form the system's totality. In structural Marxism, history is no longer the standard periodization around traumatic wars and constitutional moments in the trajectory of a state-bound order, but rather looks more like recorded jazz tracks on a song in the studio various assigned tracks entering in and out of the recording, improvisational efforts by different instruments, even if ultimately tied around a common melody played inside a studio space. To move from metaphor to a concrete example in terms of the 'secularization' theme within the narrative of 'modernity' in international legal theory, this approach allows for a shift from See generally Wolfgang Sachs (ed.), THE DEVELOPMENT DICTIONARY: A GUIDE TO KNOWLEDGE AS POWER (1991). 61 See Louis Althusser, Ideology and Ideological State Apparatuses, in LENIN AND PHILOSOPHY AND OTHER ESSAYS 127 (1970). 60

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thinking the trajectory of Christianity from political/public power to personal/private belief, to considering the means whereby Christianity underwent an evolution from being both a SA and ISA (much like 'law' today) to increasingly being relegated to the role of an ISA, which itself opens new opportunities for understanding its changing nature and influence in relation to other fields of coercion and ideology. IV.B. TIME A classic critique against Marxist theory (especially in relation to the 'early' Marx and certain strands of Soviet thought) is that communism is depicted, in a Hegelian register, as either the inescapable endpoint to the march of history, and/or that it marks the dawn of an utopian epoch. This variety of Marxist theory is strikingly reminiscent of theological eschatology in three respects.62 First, time is organized according to a linear progression (e.g., from scattered nomadic herders to a global proletariat dictatorship; from Adam to the return of Christ), marked by moments of revelation (e.g., scientific and political revolutions, spiritual revelations), which lead up to an apocalyptic battle (e.g., world communist revolution, the eschaton) that pits two forces in a state of absolute warfare (e.g., bourgeois versus communists, saved versus unsaved), to result in the dawn of a new and perfected earth (e.g., global communism, heaven).63 Second, this future utopia is framed similar to pre-capitalist Catholic beliefs concerning dominion in that the world will return to the original distribution of the earth 'in common', as well as postmillennial beliefs that humanity can enact the Kingdom of Heaven on earth (much like its liberal counterparts), whereby there is no end to the resources required to maintain the state of perfection (in Marxist though, the industrialized conditions/resources of production). Third, though rejecting any metaphysical entity that sustains time or that will return, the projection of a

For a useful overview of eschatological approaches, see McGrath, supra note 32, at 444-464; see also Matilda Arvidsson, How Long is ‘Now’? Time, Narration, and Eschatological Promises of ‘Messianic Salvation within International Law Of, In, and After War, Presentation, International Law and Wars of Religion Conference (September 2007), available at http://works.bepress.com/matilda_arvidsson/31/. 63 The ‘utopian’ critique of Marxism is often rehearsed within not only conservative, but also post-Marxist and postliberal texts. See e.g., Ernesto Laclau and Chantal Mouffe, HEGEMONY AND SOCIALIST STRATEGY: TOWARDS A RADICAL DEMOCRATIC POLITICS (1985). 62

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determined future epoch suggests a quasi-transcendental law or rule that determines the progression of time within human organization. Even when Marx inverts the Hegelian thesis so that the genesis of action is 'material' or 'economic' rather than 'ideas' or 'spirit', there is a remainder of transcendence within the form of argument in that the supposedly 'concrete' anthropological turn in Marx still posits a generalized, overarching spirit to an age (e.g., feudalism, capitalism) and fixed categories of identity (e.g., capitalist, bourgeoisie, proletariat) that grossly over-determines the diversity of ideological and institutional arrangements whereby persons experience and produce meaning.64 Within this formula of 'soft transcendence', the political realignment of the person is modelled on Christian conversion: the 'worker' / 'petit bourgeoisie' (individual in world of toil) struggling for freedom against capitalist alienation from her labour (dominion over one's self and production towards re-connection with a distant God) is converted and subsumed into the 'proletariat' (the body of Christ), even while still living in the current capitalist epoch (fallen world). Other traditions within Marxist and post-Marxist theory, however, deviate significantly from this romantic narrative of time to refuse any transcendent dimension within human experience. On the one hand, among post-Marxist and 'radical' liberal authors within international legal theory, such as Roberto Unger, the certainty of any determined future is a misconception produced by institutionalized routines and interests, what he calls an ideology of 'false necessity', that stifle the germ of human freedom - namely, individual and collective creativity.65 The enigma of time, therefore, is that it presents itself as both infinitely complex and fixed, its hidden secret that on some elementary level its source is the human psyche, or imagination. On the other hand, Marxist international legal theorists adopt a more robust antitranscendence, which denies any quasi-metaphysical source of time (e.g., God, the human) while nevertheless attempting to chart out a broad roadmap for explaining changes in society - what For an extensive critical study on the transcendent dimension of the Hegelian inversion within mainstream Marxist theory, see Louis Althusser, On the Materialist Dialectic, in FOR MARX 155-184 (1969). 65 See Roberto Unger, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY 35-36, 164, 169, 278-280, 299-301 (2004). 64

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Susan Marks has described as 'false contingency'.66 In this approach, the contours of a given social system are not based in any sort of permanent truth: there is temporal determinism, but on the grand scale, no law or reason or behaviour is essential to existence. Unlike Christianity, Liberalism, and more romantic forms of Marxist theory, truth is radically separated from duration/time.67 As Quentin Meillassoux argues, "only the time that harbours the capacity to destroy every determinate reality, while obeying no determinate law ... can be thought of as absolute" - in other words, "only unreason can be thought as eternal because only unreason can be thought as at once anhypothetical and absolute", what he calls the principle of the "absolute necessity of the contingency of everything”.68 In this view, systems may still operate to produce conditions of temporal truth but are themselves no longer grounded on any absolute entity or set of natures or laws. "We are no longer upholding a variant of the principle of sufficient reason, according to which there is a necessary reason why everything is the way it is rather than otherwise, but rather the absolute truth of a principle of unreason... everything must, without reason, be able not to be and/or be able to be other than it is." 69 Here, like Christianity (but unlike mainstream liberal discourse), a wholly 'other-worldly' possibility exists for human organization, but unlike its predecessors and certain strands of Marxist theory, it no longer provides a roadmap or even a conception to this other world, existing solely as a radical and perpetual critique of any attempt to 'naturalize’ the terms and conditions of the international legal framework. IV.C. THE SUBJECT Two distinct trends may be identified within Marxist theory regarding the subject, again organized around ‘humanism’ and ‘structuralism’. In the humanist model, the role of the subject See Susan Marks, False Contingency, 62(1) Current Legal Problems 1, 6-15 (2009). For a discussion of the break between knowledge and truth in political philosophy, see Alain Badiou, THEORY OF THE SUBJECT (English ed., 2009); see also Alain Badiou, On the Truth-Process, Presentation, European Graduate School Workshop (August, 2002), available at http://www.lacan.com/badeurope.htm. For a brief legal discussion of this theme, see John D. Haskell, The Strategies of Rupture in International Law: The Retrenchment of Conservative Politics and the Emancipatory Potential of the Impossible, 13 German Law Journal 468, 476-481 (2012). 68 See Meillassoux, supra note 55, at 63. 69 Id. at 60. 66 67

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is no longer organized around a hierarchical principle (e.g., the state/citizen, God/sinner), which is posited to flip any metaphysical pretension on its head and allow for a materialist reading of meaning. The individual – plagued by their subjective beliefs and experiences – is no longer ‘natural’ or generalizable to ‘humanity’, but rather the outcome, or subject, of specific conditions (forces/relations) of production: namely, class identity, divided in the capitalist mode between capitalists, bourgeoisie, and proletariat. The dynamic of human subjectivity, in other words, is the ‘economy’, which operates through coercive (e.g., police, laws, the state) and non-coercive mechanisms (e.g., ideology) to rob workers of the real value of their labour (e.g., surplus labour). The goal, therefore, is to ‘wake up’ the proletariat: first, to dispel the false consciousness that allows them to participate in their own exploitation, and second, to overcome the alienation of their labour through communist revolution, which will eventually lead to an egalitarian society that has no need for a repressive state structure.70 Structural Marxism breaks from the humanist model’s definition of the subject in that it challenges the humanist concepts of ‘alienation’ and ‘false consciousness’ (e.g., ideology) as restoring a conservative, or romantic, logic to the Marxist subject. 71 To speak of alienation, in other words, suggests a ‘natural’ persona that can be reacquainted with its authentic self. In turn, the linkage between ‘ideology’ and ‘false consciousness’ implies that one may completely apprehend the real nature of personal and social existence. In contrast, the structural Marxism model holds that humans have no ‘authentic’ selves and that ‘ideology’ is ahistorical to the extent that there is no possibility of escape from one’s place, or production, as a ‘symptom’ or ‘bearer’ of particular systemic conditions – we are always already conditioned by the idea, processes and systems that we live within.72 Though in agreement that the modes of production ‘in the last See Karl Marx and Frederic Engels, The Manifesto of the Communist Party, in Robert Blaisdell and Bob Blaisdell (eds.), THE COMMUNIST MANIFESTO AND OTHER REVOLUTIONARY WRITINGS: MARX, MARAT, PAIN, MAO TSE-TUNG, GANDHI AND OTHERS 123 (2003). For a concise but useful explanation of the Marxist doctrine of false consciousness, see Terry Eagleton, IDEOLOGY: AN INTRODUCTION 89 (1991). 71 For the seminal text theorizing the separation between the ‘early’ and ‘late’ Marx along the epistemological break concerning ‘humanism’, see Louis Althusser, Marxism and Humanism, in FOR MARX 187-214 (1969). 72 See Louis Althusser, Theory, Theoretical practice and Theoretical Formation: Ideology and Ideological Struggle, in Gregory Elliot (ed.), PHILOSOPHY AND THE SPONTANEOUS PHILOSOPHY OF OTHER SCIENTISTS AND OTHER 70

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instance’ determine the subject, structural Marxism contemplates ‘the economy’, and more generally capitalism, as a unity of diverse, and often contradictory, institutional arrangements, with their own histories and logics that do not neatly correspond to any monolithic formula. Subjectivity is, therefore, not simply left to be explained by ‘nature’, but to the extent that in the modern world it is the product of the capitalism and that ‘class identity’ is the repressed logic of subject-hood, this formula can only hold accurate to the extent that its substance (e.g., capitalist economy, class identity) may be thought out as both the outcome and the ‘glue’, to an almost limitless set of institutional idiosyncrasies even if ultimately meant to be analysed through their modes of production. The struggle, or contradictions, that make up a system exist before and make up the subject, rather than the subject pre-existing the struggle.73

V. CONCLUSION: TOWARDS A STRUCTURAL JURISPRUDENCE ‘Modernity’ hails all three traditions – Christianity, Liberalism, and Marxism – to construct the state of international law. Its power is less that it allows for an accurate description of the discipline’s historical trajectory or contemporary dynamics, than it provides a useful means to analyse the inner logic of international law today.

Intellectual traditions have at times

collapsed the past into an endless circularity that does not allow for history or time to be demarcated in its conventional sense today, but this tendency itself comes in cycles – and, more importantly, does not allow for ‘modernity’ to enlist the set of concerns and observations that give it meaning today: industrial production and technological innovation, global economic interdependence, the Western-oriented experience of losing faith in ‘religion’, and so on. In this sense, modernity speaks from a specific time period and geographic location – something ESSAYS 22-43 (1990)(discussing the idea of ideology having ‘no history’ and the theory of ‘interpellation’ to describe the mechanisms by which an actor is transformed into a ‘subject’). For an analysis of debates concerning Althusser’s claims about ‘ideology’, see Won Choi, A Structuralist Controversy: Althusser and Lacan on Ideology, PhD Dissertation, available at http://ecommons.luc.edu/cgi/viewcontent.cgi?article=1296&context=luc_diss; see also Etienne Balibar, Structuralism: A Destitution of the Subject?, 14(1) Differences: A Journal of Feminist Cultural Studies 1 (2003); Robert Paul Resch, ALTHUSSER AND THE RENEWAL OF MARXIST SOCIAL THEORY 164-178 (1992). 73 See Louis Althusser, Reply to John Lewis, in ESSAYS IN SELF-CRITICISM 46-59 (1973).

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approximated to the 19th century onward, but by divorcing it from any accurate historical description, for our purposes, in one way or another suspends any value judgment towards a particular model. Christianity, for instance, cannot simply be ‘past’, but is instead a ‘framework’ of methodological and theoretical practice, that transverses its boundaries (if not acquires its meaning) only in relation to competing traditions of ‘modernity’. To adopt ‘modernity’ as a literary technique that announces a set of rhetorical gestures for authors to employ, therefore, allows for the reconsideration of each tradition on its own terms, as valuable ingredients to thinking the possibilities and limits of international legal scholarship.74 In this paper, I addressed three interrelated themes that are essential to the way the discipline reflects upon its own development and enunciates its underlying dynamics: history, time, and the subject. Of course, these are not the only themes that could be picked up, but they seem indispensable to any theoretical approach taken within international law.75 To speak of modernity is to claim a subject (e.g., the subject) that comes from somewhere else (e.g., history) and finds itself in a place immanent to our own experience (e.g., time).

How might we

reassemble these models to offer fresh analytics towards these thematic concerns that remain so alive to the discipline? First, the emphasis on the structure of being – what might be termed, a ‘truth’ process or a ‘structure’ of truth whereby an actor in history is made into a ‘subject’.76 In Christianity,

The analysis of international legal themes as forms, or rhetorical devices of discourse that illuminate patterns of argument is a hallmark of two Harvard Law School led jurisprudential ‘schools’, Critical Legal Studies (CLS) and New Approaches to International Law (NAIL). See e.g., Duncan Kennedy, A Semiotics of Critique, 22 Cardozo Law Review 1147 (2001); see also David Kennedy, Critical Theory, Structuralism and Contemporary Legal Scholarship, 21 New England Law Review 209 (1986); Pierre Schlag, The Aesthetics of American Law, 115 Harvard Law Review 1047 (2002). For a study situating the history of these intellectual approaches within an institutional context, see Akbar Rasulov, New Approaches to International Law: Images of a Genealogy, in Jose Maria Beneyto and David Kennedy (eds.), NEW APPROACHES TO INTERNATIONAL LAW: THE EUROPEAN AND THE AMERICAN EXPERIENCES 151-191 (2012). 75 I would like to thank Thomas Skouteris for important early remarks about my thematic choices in this analysis, and to Ignacio de la Rasilla del Moral for organizing the workshop. 76 For a discussion of ‘truth procedures’, see generally Alain Badiou, ST. PAUL: THE FOUNDATION OF UNIVERSALISM (2003). For a theoretical discussion of this ‘subject-making’ process, see Althusser, supra note 78, at 22-43; see also Louis Althusser, POLITICS AND HISTORY: MONTESQUIEU, ROUSSEAU, MARX 101-106 (1972)(discussing, when analyzing the meaning of a text and its larger significations in terms of social production, the importance of reading into the ‘blind spots’ of the texts rather than attempting to deduce what an author might have meant). 74

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though individuals live within a fallen world, they have a choice in their subject-hood that realigns not only their sense of meaning, but their daily practices. Namely, in Pauline doctrine, one can live under the regime of the law, which is death, or one can live according to the spirit, which is life in Christ: to be born again, as a ‘new man’.77 This regime was not ‘man-made’, nor is it simply the product of an individual or even a culture, but is a totality (or perhaps, a process) that pre-exists any given subject. In fact, it might be more accurate to say that this regime operates through a logic, or truth, that hails a person as a subject into that system and maintains their subject-hood through an intricate set of ritualized ideas and behaviours, irrespective of what ‘actually exists’.78 In a similar way, Liberalism speaks of individuals and states as the product of cultural systems and Marxism of individuals in terms of class membership determined by a given economic structure (e.g., capitalism). There may or may not be external laws governing humanity, but their perception is forever coloured by the fact that each person, or institutional apparatus (of law, of politics, of religion) is always made known, and in turn can only recognize their situated-ness from within this structure. In this sense, ideology does not designate a ‘false consciousness’, but is a description of the necessary ways that subjects come into existence and maintain a given set of systematized relations and activity. Ideology is ahistorical, therefore, much like a subject does not pre-exist the history of a structure – it is always there beforehand, naming and providing the toolkit of perception.79 And as such, the capacity to speak of ‘truth’ in a more robust sense re-emergences, no longer as something that is ‘actually’ the case in a metaphysic or trans-historical sense, but as a description of the process by which a system holds together and through which its elements are worked upon and find their place – representing a totality within its own terms, yet fragile to the extent that it stands or falls on its ability to maintain its hold over the imagination and activity of the conditions that produce its subjects. Any systemic order exists on an ‘as if’ justification, in See Badiou, supra note 82, at 75-85. See Althusser, supra note 78. 79 See Althusser, supra note 79, at 46-59. 77 78

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other words, rather than any necessary connection to the ‘real’ world. To speak of ‘modernity’ is to speak of its actors as the ‘bearers’ of certain conditions and forces that, while infinitely diverse, are nevertheless capable of being described according to certain forced choices or dynamics upon which that system stands or falls. And since systems come before subjects, we can draw together these three traditions to say that history is a process without a pre-given subject, and though it is indeed ‘situated’ in a time and place, claims itself – at least in relation to what it designates as its ‘essential’ principles or insights, those aspects that construct the process of creating and maintaining the conditions of its subjects – to be outside the radical alterations that time seems to otherwise always entail.80 Second, the emphasis on not only identifying the relationship between a particular structure and its subjectivities, but simultaneously, escaping a structure. To be ‘born again’ in the Christian model is to do away with a previous mode of existence. Similarly, to be ‘liberal’ is to transcend the fanaticisms of past religions and political ideologies, to accept the limits imposed by ‘subjectivity’.

Likewise, Marxism calls upon workers to awaken from ‘bourgeois false

consciousness’ to the reality of class struggle over the means and relations of economic production. ‘Modernity’ always seeks an escape, promising a world that is more universally egalitarian, if not lovely. And in this sense, the post-modernity sensibility so prevalent within the liberal tradition today seems a red-herring, for even as it disclaims ‘truth’ it reasserts a ‘naturalized’ world of an infinite set of ‘subjective’ individuals that pre-exist any system of being, and though offering the endless promise of hedonistic advances in the sciences and arts, ultimately presents a world of no alternatives: international society may improve, its laws become more attuned to ‘difference’, but these will only be minor adjustments, reforms to the machinery of a liberal ethos under the sway of global capitalism production and finance.81 And in doing so, it reasserts an ‘essence’ or naturalized subject that pre-exists the process, or structure – the See Lorenzo Chiesa, SUBJECTIVITY AND OTHERNESS: A PHILOSOPHICAL READING OF LACAN 104-193 (2007). 81 See Roberto Unger, WHAT SHOULD LEGAL ANALYSIS BECOME? 1-2, 28 (1996). 80

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‘subjective individual’ or the ‘self-interest’ of nations or cultures, as if these agents exists outside of the historically situated conditions that structure these relations.

The scandal of post-

modernity is that it claims an ethos disciplined from the excesses of ‘modernity’, even while its disenchantment creates a prison-house of new abstractions that cut off the practice of international law from being even conceptually reconstituted in some radical alternation. In contrast, future directions in international legal scholarship might question how to denaturalize ‘subjectivity’ so that it may operate less as a neo-Kantian categorical limitation or an ‘original essence’ that seeks to struggle from alienation to some authentic self-determination, and instead as the privileged site for understanding how a system sublimates (or calls) people as subjects, through coercive and non-coercive means, and in turn, how this mechanism also exacts mutations on the system itself.82 To the extent that these descriptive forms (e.g., ‘the individual’, ‘culture’, or even ‘interests’) remain relevant to legal analysis, they do so only as the ‘bearers’ of ‘symptoms’ of material and ideological processes, which are themselves nothing but the specific means that struggle is produced in a disparate but orderly fashion. Since truth, like the manifold descriptions of subjectivity (e.g., the individual, culture, states), is only made present in history through a structure, the underlying contingency of that identity opens up a new continent of knowledge to the discipline. International law is both the product of ‘radical determinism’ (within a structure) and ‘radical contingency’ (that this structure can itself pass away to some new world).

The promise of something ‘wholly other’ – in conceptual (ideology) and material

(structure) terms - is perhaps the real gift of ‘modernity’, even as it calls upon the discipline to revisit old enchantments of the past. On a methodological and theoretical level, this might be embraced as a structural jurisprudence towards international law that would allow, on the one hand, for immanent critique, and on the other hand, for political partisanship – all without falling into the temptation of an ‘essentialized’ subject. Here again, the Christian truth of our status in the

82

See Althusser, Contradiction and Overdetermination, in FOR MARX, supra note 70, at 51-91.

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world re-emerges within the disciplinary logic of our times: we remain ever strangers to, but nevertheless in the world, defined through struggle.83

83

See 1 Peter 2:11-12, in King James Version, available at www.biblegateway.com.

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