On Fragments and Geometry: The International Legal Order as Metaphor and How it Matters

This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century

On Fragments and Geometry

__Abstract__ This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century

Performing Legality in the Theatre of Hostilities: Asymmetric Conflict, Lawfare and the Rise of Vicarious Litigation

This Article explores the extent of the change by looking at the ways in which asymmetric conflict and legalization have reshaped the theatre of hostilities and the implications for the institution of war itself. The shift from one literal battlefield to multiple and disaggregated battlespaces has led to a reconfigured theatre of hostilities, which now involves a complex mix of local and global spaces as well as kinetic and narrative forms of combat. This re-making of armed hostilities in geographical, material, and social terms has increased access to the drama, stage, and audience of military theatres. Further, the more globalized and publicized character of hostilities has allowed a higher number of actors, and actors of higher quality, to participate in and observe hostilities, whether kinetic, narrative, or both. This has given a powerful platform for law to mediate the conduct of warfare, and it is thus unsurprising that the notion of legality regularly occupies center stage in a reconstructed theatre of hostilities. Accordingly, military actors, whether state or non-state, are producing performances of legality in combat to influence not only their adversaries but also, crucially, formal and informal judgments across the theatre’s more expansive and global audience. The term “performances” does not imply cynical theatrics, but rather concerted actions to display legality or illegality as an integral part of warfare. In this way, such performances of legality have become a crucial strategic asset for interacting kinetic and narrative confrontations. This has led to a distinctive struggle between adversaries over appearances of legality and illegality, which has produced an institutional and narrative battlespace of growing importance that this Article conceptualizes as vicarious litigation. The Article is organized in five sections. Section I introduces and elaborates on the related notions of legal performances and vicarious litigation by bridging sociological theorizing on social performances with noted developments in asymmetric warfare. This conceptual effort draws insight from Performative Sociology and the so-called “practice turn” in international relations theory. Section II describes the origin of vicarious litigation as flowing from the asymmetric warfare’s disruption of the institutional bargain behind modern war and, consequently, International Humanitarian Law (IHL). To understand that institutional disruption, Section II discusses Andrew Mack’s under-examined inquiry into and conceptualization of “asymmetric conflict.” Sections III and IV look at how international lawyers, and specifically IHL scholars, have struggled to grasp the rise of asymmetric conflict and how the dominant “lawfare” literature has suffered from conceptual straining and the incapacity to theorize institutional change precipitated by the prevalence of asymmetric conflict. Section V focuses on the novel notions of legal performances and vicarious litigation and examines how these novel notions provide alternatives to the hobbled semantics of lawfare by offering greater insight into institutional mutations that now define the legalization of contemporary warfare

International Law and the 'Ides of March': A Response to David Kennedy

My response to this year’s Montesquieu lecture focuses on Professor Kennedy’s invitation to imagine the liberal institutional order as having been a dream-like experience, from which international elites have abruptly awoken. Yet, I engage that invitation by altering the framing somewhat. Perhaps the experience that was the liberal institutional order was a kind of theatre as opposed to merely a dreamscape. The ‘deliberate’ enactment of a geopolitical and geo-economic imaginary,1 but where liberal actors forgot over time that this ruling imaginary required a convincing public performance.2 Using my frame, the ensuing decay or collapse of the imaginary then invites a different kind of cautionary tale, where the scene of awakening is a prologue. The actual plot involves a settling of economic, political and legal debts incurred by liberal elites to sustain an imaginary that now confronts declining domestic and international purchase

The visual conquest of international law:Brute boundaries, the map and the legacy of cartogenesis

AbstractThe late critical geographer Brian Harley forewarned that modern cartography had come to control and even ‘imprison’ spatial understandings of the earth. Where does this leave international lawyers when they encounter a quintessential ‘World Map’? Quite bluntly: tied to an inscriptive institution that has embodied the modern legibility and visualization of earth space. When speaking about the global arrangements of economic and political power constituted through law, what emerges, therefore, is the need for an expanded spatial literacy among international lawyers that critically engages the graphic legacy and influence of the geometric map. To enhance that literacy, I reach beyond the doctrinal field to engage a powerful spatial critique that has thus far encompassed scholarship across geography, international relations (IR) and sociology. A critique that took impetus over 20 years ago with John Agnew's assertion that modern social science had become captured by a ‘territorial trap’. The article attempts to enrich that critique with Mark Salter's insight on material power, Marshall McLuhan's emphasis on the medium of communication, and Bruno Latour's critique of cartographic naturalism. Specifically, I introduce the concept of cartogenesis as a way of underlining the deeper legacy and consequence of modern cartography, and specifically how the map medium should be grasped as a historical actant that has inscribed a particular ‘ground map’ of international authority. Lastly, the article looks at how geometric mapping now confronts new inscriptive ordering in the forms of transnational lists and contracts, which assert a growing scale of authority over earth space to an extent not seen since the Mercator Projection was recognized as an overriding geographic model.</jats:p