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International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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“Plying centuries of legal doctrine, necropolitics, and biopolitics, Khaled Al-
Kassimi reveals how the idea of the ‘Arab Spring’ manifests a potent social
technology of governance over and through bodies variously captured by or
vacated from positivist legal regimes. This meticulously researched, insightful,
and persuasively argued book is essential reading for anyone seeking to better
understand the advanced colonial complicities of jus gentium.”
J. Marshall Beier, Professor of Political Science, McMaster University
“A strong, sophisticated, and well-researched book that will interest scholars
working at the intersection of law, theology, and political philosophy. Dr.
Al-Kassimi is an elegant writer and a provocative thinker. Here, he's at his
very best.”
Roberto D. Sirvent, Professor of Political and Social Ethics, Hope
International University
“To speak truth about the plight of the Arab world today, especially as con-
cerns the beleaguered Palestinians, takes courage. To do so persuasively requires
informed awareness and intelligence. Such are the qualities that inform Khaled
Al-Kassimi’s excellent book.”
Charles E. Butterworth, Emeritus Professor, Department of Government &
Politics, University of Maryland
“Written with great lucidity and insight, International Law, Necropolitics and
Arab Lives provides an urgently needed genealogy of international law that
reveals the racialized exclusions that continue to haunt international politics and
deny Arab nations full sovereignty, autonomy, and democracy.”
Peter Nyers, Professor of the Politics of Citizenship and Intercultural
Relations, McMaster University
“Some books are not just books but intellectual events, and this is such a book.
Khaled Al-Kassimi’s breathtaking analysis challenges readers to understand how
the politics of death, and not life, has come to dominate the Arab world. This
highly original book deserves to be read, savored, and then vigorously debated
by anyone interested in the international legal order and the real value placed
on human life.”
Khaled Abou El Fadl, Omar and Azmeralda Alfi Distinguished
Professor of Law, University of California, Los Angeles (UCLA)
International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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International Law, Necropolitics, and
Arab Lives
International Relations and International Law continue to be accented by
epistemic violence by naturalizing a separation between law and morality.
What does such positivist juridical ethos make possible when considering that
both disciplines reify a secular (immanent) ontology?
International Law, Necropolitics, and Arab Lives emphasizes that positivist jur-
isprudence (re)conquered Arabia by subjugating Arab life to the power of death
using extrajudicial techniques of violence seeking the implementation of a “New
Middle East” that is no longer “resistant to Latin-European modernity”,but
amenable to such exclusionary telos. The monograph goes beyond the limited
remonstration asserting that the problématique with both disciplines is that they are
primarily “Eurocentric”. Rather, the epistemic inquiry uncovers that legalizing
necropower is necessary for the temporal coherence of secular-modernity since
a humanitarian logic masks sovereignty inherently being necropolitical by
categorizing Arab-Islamic epistemology as an internal-external enemy from
which national(ist) citizenship must be defended. This creates a sense of danger
around which to unite “modern” epistemology whilst reinforcing the purity of
a particular ontology at the expense of banning and de-humanizing a supposed
impure Arab refugee.
This book will be of interest to graduate students, scholars, and finally,
practitioners of international relations, political theory, philosophical theology,
and legal-theory.
Khaled Al-Kassimi is Assistant Professor of Political Science and International
Relations at the American University in the Emirates (AUE).
International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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International Law,
Necropolitics, and Arab Lives
The Legalization of Creative Chaos in
Arabia
Khaled Al-Kassimi
International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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First published 2023
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2023 Khaled Al-Kassimi
The right of Khaled Al-Kassimi to be identified as author of this work has
been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording, or
in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
A GlassHouse book
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book
ISBN: 978-1-032-30714-5 (hbk)
ISBN: 978-1-032-30715-2 (pbk)
ISBN: 978-1-003-30637-5 (ebk)
DOI: 10.4324/9781003306375
Typeset in Bembo
by Taylor & Francis Books
International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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To the martyrs of necropower, and my brother, Tarek Ibn-
Mahmoud Al-Kassimi (d. 1989)
International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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Contents
About the Author x
Acknowledgements xi
Foreword xiii
Introduction 1
1 Positivist Jurisprudence: The Secularization of Revealed Law in
International Law 44
2 Naturalizing a Separation Between Law and Morality: Pre-emptive
War as Just in Arabia 90
3 (Neo)-Orientalist Imaginaries and the “Arab Spring”: Inclusive
Exclusion as Ethos of International Law 132
4 The Bethlehem Legal Principles and Operation Timber Sycamore:
Legalizing Killing Arab Lives by Hiring War-Machines 174
5 The “Islamist Winter” and Necropolitics: The Displaced Arab as
Muselmänner and the Coherence of Secular Modernity 214
6 Conclusion – Harmonizing Revelation with Reason: A Necessary
Ontological Limit Structuring a Spiritual Epistemology 268
Index 283
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About the Author
Khaled Al-Kassimi is an Assistant Professor of Political Science and International
Relations at the American University in the Emirates (AUE). He was born in
Castelnaudary, France to Arab-Lebanese parents. He has resided in Beirut, Leba-
non and Ontario, Canada to complete not simply his undergraduate and graduate
education, but also his elementary and secondary schooling where he attended
École Élémentaire Catholique Saint-Jean-Baptiste and École Secondaire Cath-
olique Sainte-Famille. He completed his HBA specializing in History and Political
Science at the University of Toronto, and finally, his MA and PhD specializing in
International Relations and Political Theory at McMaster University. Traveling
the bridge linking the orient and the occident has permitted Khaled Al-Kassimi to
produce scholarly work navigating research questions and disciplines accenting
Jurisprudence, Philosophical Theology, and Political Sociology thereby establish-
ing a reconnaissance between multiple epistemic registers. Khaled Al-Kassimi’s
specific area of research is particularly interested in analysing the teleological,
ideological, and juridical arguments legalizing internal/external displacement,
demographic and ethnologic territorial transferences, and finally, private wars.
International Law, Necropolitics, and Arab Lives; by Khaled Al-Kassimi
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Acknowledgements
The ordeal involved in balancing reason and revelation to produce a
monograph is a mental and soul enriching struggle since it involves miti-
gating “internal” emotional trials symbiotically with social “external”
experiences. This monograph would not have been possible without the
constant support, love, compassion, and uplifting done by my mother –
Samia Bint Zakariah Al-Kassimi – my father – Mahmoud Ibn-Abdel Razak
Al-Kassimi – and both of my sisters – Halla & Farah Al-Kassimi. My
father – genealogically from the Banu-Ha
-shim clan in the Qawasim tribe –
telling me historical anecdotes about Osmanli-Arabia upholding and
expanding on Greco-Arab philosophical theology by conjoining sociable
differences across religious and ethnic persuasions; my mother – from the
Osmanli genealogical clan of Al-Turk – whomadesurethat welearned,
experienced, and appreciated the multiple languages and cultures of com-
munities we visited and experienced around the world. The perseverance,
resilience, and never shifting integrity of my lovely sisters in seeking to endure
worrying life-world experiences elevated my awareness concerning global issues
and directly inspired the selection of themes and topics constellating each
chapter.
The world is a better place thanks to people who want to mentor and lead
others. However, what makes it even more worthwhile are those who share
their time to educate and allow others to grow. For this I am forever indebted
to the academics and colleagues I met at University of Toronto, McMaster
University, York University, American University in Beirut (AUB), and more
recently, my new academic home at the American University in the Emirates
(AUE). A heartful gratitude to J. Marshall Beier, Peter Nyers, Nibaldo Gal-
leguillos, Anna Agathangelou, Lana Wylie, Robert O’Brien, Inder Marwah,
Rima-Berns-Mcgown, Karim Makdisi, Charles A. Butterworth, Khaled Abou
El Fadl, Muthanna G. Abdul Razzaq, Abhilasha Singh, Walaa A. Fouda,
Assem Tharwat, Nessrin Shaya, Asma Salman, Chahine A. Ghais, Azzam
Hannoon, Wamidh Jamil, Mohammed Al-Zyoudi, Hala Albukhari, Amer Al-
Fakhoury, Kleanthis Kyriakidis, Marios P. Efthymiopoulos, Mario Rodriguez,
Nahla Hamdan, Nahla Moussa, Konrad Gunesch, Gerasimos Rodotheatos,
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xii Acknowledgements
and Renny Castaneda. Last but not least, Colin Perrin and Naomi Round
Cahalin – commissioning editor and senior editorial assistant at Routledge –
your continuous support and encouragement for completing the monograph
is forever treasured.
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Foreword: Jus gentium or the Tip of
the Iceberg
Anna Agathangelou
Not so very long ago, before the Europeans undertook to manufacture a world of
nation-states and capital or European modernity, Arabs grappled with questions of
existence and knowledge by focusing on the ekphrastic energeia, that is, the capacity
of material expression to evoke the eventfulness of experience. But this ekphrastic
energeia was redirected into the hands of the intellectuals of Latin-Europe and more
recently into the hands of imperial powers like the United States who turned it
into a tool of violence and terror.
This is not always the case, however. Al-Kassimi grapples with jus gentium
and its architectural edifices in the form of natural and positivist law used to
erect systems of thought depending extensively on the dichotomization and
hierarchization of politics and law, morality, and politics, subject, and object,
life, and death – and transmutes them into a dynamic perennial poiesis in
Arabic. In essence, his writing is an open semiosis, expressed as heterogeneous
practices of reading the world and its multiple texts (writings, wars, insecurity,
co-constitutions of suffocation and liberal order). More concretely, he argues
the dynamics between perception and conceptualization play a pivotal and vital
role in reading the world, and their speculative epistemologies require a spon-
taneity in imagination.
Al-Kassimi’s innovative and cutting-edge study concentrates on reading sources
with a hermeneutic suspicion in tandem with being anachronic. By interrogating
the collation of the jus gentium, he aims to make as clear as possible what Arabs
want to say about nature and law in the modern world, and what they wish they
could make Europeans understand about their existence. This interrogation – of
jus gentium, the law, and law in the contemporary moment – is meanttocircum-
vent colonizers and imperialists’ continued power to make us misunderstand, dis-
place, and mutilate (at the expense of the Arab) every day in the world.
In Arabic thought, descriptions, and discussions of the “first cause” of the uni-
verse centre on its nature, its attributes, its place in cosmology, and what is unique
to it. In speaking about the first cause, or its temporality or its lack, Arab thinkers
point to it as the First Existent among existents out of which they derive their own
being. The First exists eternally and has no beginning or end. It is everlasting and
does not need anything to provide for it. It has no purpose and no aim, and it has
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xiv Foreword: Jus gentium or the Tip of the Iceberg
no cause other than itself, through which, or out of which, or for the sake of
which, it has come to exist (Al-Fa
-ra
-b-
ı,al-Mad
-
ınah, 56).
This question of the first cause or the divine in the Arab-Islamic and
Christian worlds has been and is at the forefront of the relationship between
Latin-European modernity and the rest, between generalizability and specificity.
Al-Kassimi tells us:
[I engage in an] epistemological inquiry by emphasizing two political
commitments – a hermeneutics of suspicion in tandem with being ana-
chronic – when reading to deconstruct positivist legal-history. This inquiry
reveals how past and current secular legal doctrines and their associated
deterministic representations of Arab epistemology have been consistent
in adopting logical fallacies associated with semantic generalization per-
ceiving Arabia as a monolithic space with “inhabitants” rather than
“political subjects”,and a “geographic area” rather than a “homeland”
with different epistemological registers than to those temporally reified
by secular (Latin-European) philosophical theology.
For him, the reading of the world cannot be presumed or taken as a given
but must be queried through creative poetic approaches; in his view, the
“hermeneutics of suspicion in tandem with being anachronic” will allow the
deconstruction of a positivist legal-history and its contingent scientific tools
that uphold the supremacy of Thought as a primary goal of the political.
Our time of global capital and Latin-European modernity was supposed to
free us from the fear of nature and myth. It has not done so. Instead, we are
confronted by new fears and new myths, with devastation and violence in their
wake. A focus on Arab fundamentalisms and terrorism, violent as they are,
often hides the deeper, long-term, and large-scale terrors of old and new
imperialisms and colonialisms, embedded in international law and international
relations, practices of human degradation, economic exploitation, cultural
domination, and political repression, to such an extent that even the most
committed scholarly debates and intellectual discussions seeking to explain the
violence and posit alternatives and solutions are problematic.
How are we to make sense of this intellectual work and the contingent technol-
ogies of governance? How are we to understand the present violences in our lives?
The most eloquent speaker among us (aʿrabukum), Al-Kassimi, elucidates the
writing of the jus gentium and its fatal consequences on life (by relegating the
spiritual being to the margins) and our literacy in world politics. The problem
addressed by this monograph requires an interdisciplinary and compositional
engagement; we are dealing with the violent effects of jus gentium law and its
relegations on texts and other key literacies through dominant debates about the
state, sovereignty, progress, Arab and Islamic law, multiple scholarly traditions at
the same time. As such, certain critical considerations must be accounted for, ran-
ging from the texts to be read to the approaches to reading these texts.
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Foreword: Jus gentium or the Tip of the Iceberg xv
Furthermore, as Al-Kassimi works in historically and politically multiple
moments, he articulates a historiographical-epistemological approach for inter-
national relations. The monograph is an exposition of how world politics
fetishizes materialistic ideologies and their ideas of freedom, liberation, and
justice. In a sense, he highlights that the world of politics, and the world of
knowledge (disciplines, ethos, and methodologies) of international law and
international relations keep the cutting, the zipping, the stitches, the sealing,
the modifications, the mutilations, and the initiations alive and well.
The reading of “empirical facts” as “destructive chaos” in Arabian space is a
formal moment that shows us the bolstering and sustenance of the jus gentium as a
form of the colonial and imperial power. This form provides Latin-Europe and
its Westphalian interstate nation-states with their universality – precisely the
reason why Al-Kassimi brings it up here and its global effects on Arabia. This
universality stems from the fact that colonial and imperial power cannot be
considered only a national form restrained by borders – rather, from Al-Kassimi’s
view, it is simply the basic form that all sites take, Arabia and otherwise.
In the making of this vision of Latin-Europe, there is a collapsing of revealed
law and reason, logic, and history that the jus gentium inevitably/fundamentally
produces through the violence of ideological and ethnological abstractions, the
genocidal outside of this civilization of sovereign nation-states that must be erased
or recoded as this world’s interior. There is a constant attempt to discursively
over-code the other, the heterogeneous outside, to imagine how to destructively
include it. As Al-Kassimi explains it:
Ideologically inspired ethnological abstractions resulting in the partition of
Arabian space have historically sourced the need to exercise creative chaos
by claiming Arab epistemology as being receptive to genocide and allergic
to reason. The legal justification extended to practice such technique
asserts a subjective reason-based deduction claiming that the ontology of
Arabs in general, and Muslims in particular, is temporally degenerative.
Al-Kassimi continues:
Agamben further explores the concept of muselmann by identifying it as an
unassigned “bare naked life/abject life” stripped of all personality. The
muselmann is the witness who cannot testify and from whom no testimony
can be taken, because their “Arab-Islamist mind” mentally incapacitates
them, thereby depriving them of the power of “knowing” life and
embodying the spirit of life.
Of course, what this implies and yet is displaced in the historical and scientific
narratives that bolster the jus gentium is that the Latin-European vision of the
world cannot rely on its own intellectual and material resources to co-con-
stitute sociality and world politics. Yet it systematically displaces this incapacity,
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thus opening up Al-Kassimi’s key question of the subject and the project of the
world and justice.
This negative ideography was at the forefront of the debates and speculative
epistemes of social compact theorists who addressed the crisis of state after the
English Civil War. They pointed to the state of nature or “anarchy” in which
there are no external restraints on an individual’s desire. The state of nature or
anarchy, they argued, threatens the extinction of species. Therefore, those
individuals of reason who fear this destruction/violence will aggregate to pre-
vent it and to achieve security, something they cannot achieve individually.
This social compact idea and practice belongs to the lineage of European
political philosophy traceable to Hobbes.
-
Anarchy refers to arche (principle) in its Greek usage. In social compacts, it is
being without principle, a condition in which there is no institution of govern-
ment. It eventually settled into its current form as an opposition to government
based on “chaos” and “disorder”. “Creative anarchy’s” rhetorical force is the
“figure” Al-Kassimi uses to connect his engagement with the philosophical
theological underpinnings of the modern historical with the scientifictoolsof
Latin-Europe, as well as their instantiation in different political projects in Arabia,
or what he deems the three key acts in the conquering of Arabia “then” and its
“reconquest … in 2003 Iraq, and 2006 Lebanon”. He does so beautifully and
with artistic fluidity.
In tracing the philosophical theological genealogies of the jus gentium and the
intellectuals whose speculative epistemologies erected it in the name of modernity,
progress, civilization, he shows the stakes in such an endeavour. And while there
have been changes in the intellectuals proposing and supporting this jus gentium,
with their speculations shifting or “transitioning”, the problematic of the pre-
supposed transcendental Latin-European order, the violence that guides its
reconstruction, remains the subject matter.
From the vantage point of the Arab, the anarchy/order problematic changes
the issue, but its basic premises, presuppositions, a priori claims remain and are
guided by the same logics, grammars, strategies, and tools of universal reason
whose reductive focus on Thought cannot yield anything but chaos and
violence.
We have listened patiently to such ideas and explanations since the 9
th
cen-
tury. We have observed values and lives destroyed, and we continue to do so.
Al-Kassimi asks us to do otherwise. Writing with illuminating clarity, he tells us
nothing creative, nothing inventive will come out of this insistence on eradi-
cating anarchy (or, rather, mobilizing chaos destructively in Arabia) to order the
world. Al-Kassimi shows how from the 9
th
century onwards, the divine or
revealed law and the heterogeneous world were unmade to make the Latin-
European order, whose idea of certain knowledges, bodies/subjects as inflected
through space and time – the key descriptors of the world – are the effect of
Thought. In other words, the precondition of the movement towards gen-
erality (the logic of Latin-Europe) is contained in the deployment of a jus
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Foreword: Jus gentium or the Tip of the Iceberg xvii
gentium to recode the surface of Arabia and, indeed, Earth. To achieve such
coordinates or orientation toward this transcendental end, Latin-Europe had to
(and must continue to do so in its newer configurations like the US) retabulate
the existing elements and cultural differences from a purely heterogeneous flux
into captured specificities. Given this reformulation, we must always analyze
the mutual complicity between the general and the specific – as illuminated,
for example, in the multiple conquests of Arabia.
Al-Kassimi reorients the reader to the Arab’s capacity to signify otherwise and
beyond the jus gentium or the juridical order whose spatial-temporal coordinates
cannot signify beyond universality and its arrangements of space and time. He asks
us to reorient our focus on considerations of the possibility of knowing and
understanding without the modern and fatal categories of the jus gentium.
Al-Kassimi has an uncanny ability to read and find paths to the life and
condition of an Arab being, who, he says, is not a white subject of reason
whose claims to universality do nothing else but lead to more destruction and
chaos. Powerfully, he writes that we cannot merely draw on “limiting (post-
colonial) protest asserting that the problématique with International Law is that it
is primarily ‘Eurocentric’ since the simple solution to such immanent ideolo-
gical claim would be to include non-European philosophical theology in
International Law”. Instead, he pushes us to demand more.
How does the production of Arabia and the Arab as a spiritual being (as
opposed to reason) as “accented” towards creative chaos protect the subject of
reason and the world of anarchy? Al-Kassimi’s anthropological and historicist
accounts of the exercises of war and explanations of the agency and organiza-
tion of Arabs to change their conditions by challenging projects that seek to
implement a New Middle East, give us an answer to this question. He writes:
While the (re)conquest of Arabia as manifest in 2003 Iraq, and 2006 Lebanon,
were respectively Act I and II accenting sovereign figures exercising necropower
by adjudicating (il)legal doctrines (i.e., pre-emptive defense strategy) legalizing
extrajudicial techniques of violence founded on discursive technologies of
racism….[the] “Islamist Winter”– temporarily dubbed the “Arab Spring” in
2011 – is Act III reifying similar legal doctrines (i.e., Bethlehem Legal
Principles).
Theoretical tools employed in racial accounts explaining the unevenness of
Arabia generally occlude conquest in accounts of secularism, war, development,
and security projects. These accounts focus on Arabia’s chaos/anarchy always
relegated the Arab as the religious subject as opposed to the subject of reason.
They depend on writing the effects of the conquest and reconquest of Arabia
by using “positivist legal technique[s] in producing chaotic developments such
as carnage” and creating “‘crises or ‘emergency’ of displacement – with sover-
eign members of jus gentium authorizing agents of terror (i.e., death squads/
war-machines)”. Al-Kassimi continues this argument by saying that the co-
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constitution of Latin-Europe with jus gentium and its reanimation depends on
“deadly technologies of racism and relations of enmity inherent in sovereignty
as a positivist juridical concept endowing sovereign figures with the power to
formulate legal doctrines that ultimately subjugate Arab life to the power of
death (necropower)”.
We must read this book carefully. After a while, we come to realize a deep
engagement and poetic energeia is precisely what is missing in our debates and
policies. Latin-Europe and the US speak among themselves as if nobody else
exists. They think the object, themselves, and they use thought/reason to
devise “destructive” solutions to chaos, all in the name of order. They think the
world by presupposing space and time with time a privileged dimension of
reason and Latin-Europe-US existence. Their speculative epistemologies are
empty, and their tools are useless. They march into our lands and take every-
thing from us, while proclaiming wars and chaos in the name of democracy,
security, civilization. Their glossy packaging of moral norms covers up white
moral defects in an arrogant egoistic self-determined subjectivity as if its exis-
tence is a given. They turn the world into graves and kill everything all in the
name of reason and law, displacing this destruction as a natural deficit of racial
difference. And yet, Arabia knows this Latin-Europe-US and its “scientific”
approaches and tools. It knows its reductive and rigid stance; in the graves and
the scars, it sees what Latin-Europe-US has made of it and the world.
Make the most of this book. Read it again and again. Read it as poetry. Its
fluidity emerges from the source of life itself. Its insights cut deep into the
fantasies and speculations that natural and positivist law has packaged in the jus
gentium as the best adjudicating mechanism of moral and global life. Al-Kassimi
reminds us: “One of the main questions orbiting the writing of this monograph
is in deconstructing and critiquing jus gentium”.
It is in this deconstruction that we learn Arabia cannot be taken for granted
or read as a given, no matter what theories of international law or international
relations tell us about the subject and object of Arabia. The world of world
politics, and the epistemologies and their categories we deploy to describe and
explain away the conditions and their shifts – emerging and transforming in
Time – are already conquered or themselves turned into tools of conquest
seizing questions about the divine, the spiritual the subject and his territory,
law, and judgement.
And how then time comes to play a key role in the ordering of Arabia as the
site of creative chaos for change and toward a transcendental telos? Of course,
Al-Kassimi shows that both our epistemes and categories work through Time.
Adopting a “Third World Approach to International Law (TWAIL) in tandem
with necropolitics and biopolitics as paradigms of analysis” he shows
jus gentium valorizes positivist jurisprudent scholastics postulating an
unbridgeable cultural gap between an Athenian mode of Being as a uni-
versal sovereign subject, and a Mad-
ınian mode of Being as the object denied
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sovereignty, [thus leading] ratiocinative sovereign figures to legally exercise
necropower on the Arab body.
And this unfolds in the text like a dance. It is a dance to the sound of his inner
wisdom or what he calls “revealed law”. It is a dance for all those who suffered
in the hands of modern Latin-European moral subjectivity that put Thought
on a pedestal. And which ends up authorizing the most immoral of acts such as
hiring squads, separating between a citizen and a refugee, etc. In his words,
The condition of any moral responsibility is the intellect with revelation pla-
cing an ontological limit on ratiocination. The moral issue with positivist law is
manifest in that it rejects revelation in favour of reason. A secular-humanist
jurisprudence characterizing positivist law naturalizes a separation between
law and morality (a positivist move par excellence). This secular move asserts
that if reason and revelation were to clash reason takes precedent. This secular
act proceeds in making possible the legalization of that which revealed Law
has deemed immoral (i.e., hiring death squads, separating between a citizen
and a refugee, anarchy being legal, etc.).
Apoetic energeia weaves together key questions of IR (from anarchy to the social
compact, state, sovereignty, war, security, difference, human rights, moral norms,
international law, development, and refugees), political-philosophical-theological
questions inscribed in modern law (revealed law vs. hyper morality), and other
dimensions of the political, such as the economic and symbolic, in the form of
ideologies writing a horizon without the tools of Latin-Europe and its jus gentium
and its dominant narratives, genres, and codes of science and history that sustain in
place the destructive chaos. To loosen the grip of this fantasy on our political
imagination, Al-Kassimi asks us to think, speak, and imagine the world otherwise:
The primary question constellating this monograph is: what are the
experienced consequences of being temporally included and what are the
experienced consequences of being temporally excluded from a legal regime
(i.e., jus gentium) reifying a (non-transcendental) Latin-European philoso-
phical theology universalizing a particular set of liberal-secular cultural
mores in order to be-come imagined as temporally “inside” jus gentium?
And he responds to this query by focusing on war and the question of displace-
ment as those forms of violence that jus gentium authorises. The site of war and the
hierarchization of cultural difference asymmetrically to secure in place the fantasy
of a structure of order comes alive in Al-Kassimi’s analysis of how notions like the
secularization of revealed law or the conflation of divine will with sovereign will
enabled the elites of Latin-Europe and the leaders of sovereign states to make legal
that which is immoral through technologies of racism in the form of orientalism
banning the Arab from the juridical and social realm. Al-Kassimi writes:
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The doctrine of pre-emptive defense targeting Arab bodies since 2003 is an
exceptional sovereign measure highlighting the original activity of sovereignty
imagining Arab-Muslims as muselmänner with law becoming irrelevant and
suspended vis-à-vis the Arab subject since legal reformulations essentially
decided that Latin-European society must be defended from the threat
imposed by Arab civilization and the only recourse to saving society is by
elevating inhabitants of the Mashreq and Maghreb to a state of exception.
The term “illegal” is limiting because Arab bodies are a priori imagined as a
necessary “double-absence” for the coherence and order of positivist legal
principles maintained by (a necropolitical) jus gentium. Such “double absence”
perceives Arabs as neither legal nor illegal, neither bios nor zoë,neither
“inside” nor “outside” law but rather an abject-Other located in a zone of
indistinction banned from the juridical and social realm.
What are the stakes in speaking from the vantage point of the violence of
the receivers in Mashreq and Maghreb? Simply stated, we see how the
world that Latin-Europe imagined, and its vision yielded more violence,
more death, and more scars, not fulfilling the promises it made. Rather than
freedom and security, justice, and peace, it has wrought havoc. Yet its
slaughtering secular mechanisms and its philosophical theologies seem to
have reached a dead end.
Al-Kassimi reorients us to a genealogy of Arab revealed law and reason.
Unafraid of grappling with the key question of the “first cause”,hestarts
the monograph by pointing to the schism between the spiritual and the
secular. He states it is this “metaphysical ontological schism around the idea
of Being between (transcendental) spiritual Arabia and (immanent) secular
Europe that permits a positivist jus gentium in making legal what revelation
has declared immoral since a jus gentium willed by sovereign-flesh identifies
rationalized-law as superior to revealed-Law”. He calls for a balance
between reason and revelation, arguing that politics as we know it today is
a politics of death. Again, in his words:
Devotion to divine revealed nomos rather than a rationalized nomos willed
by sovereign-flesh does not efface “human freedom” by making its adhering
members a “force of evil”. A core element of Arab epistemology is the
recognition of God-given human attributes, most notably the ability to
“think” or “reason” which ultimately leads to “living in common with
culturally different human beings” since the epistemological register of
revelation is infallible while the mind is fallible.
This schism further informs and shapes a focus on the politics of sovereignty in
the form of global power and its collated categories of the subject, the sover-
eign figure, the Arab, the Muslim, the abject reveals so much suffering, terror,
and chaos. In his words:
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Approaching the war on terror and the Arab uprising using bio/necropo-
litics as paradigms of analysis exposes the deadly symbiotic relation
between sovereignty and modernity as a secular project. Sovereign figures
elevated Arabs in general, and Muslims in particular to the exception by
banning their mode of Being by discursively essentializing them as an
unqualified limit-body inhabiting an abject space whose “inclusive exclu-
sion” positionality is essential for the coherence of ratiocinated philoso-
phical theology.
Al-Kassimi argues that we need to analyze life and death, indeed existence
itself, as “non-scientific cycles” to deconstruct these speculative epistemologies
that collate anarchy and chaos in world politics. He contributes to international
law and international relations, to the stakes of such a conversation, by allowing
a significant role for reason while maintaining the primacy of revelation. His
position is inclusive and approving of philosophy and rationalism, acknowl-
edging the individual as a political being who, despite being unable to attain
felicity outside the collectivity of a society, can do so with humility.
A twilight moment in this manuscript guides us towards a state of pure poetry,
a movement in which a call to attend to how a “spiritual being can withstand
personal assault, however, struggling against an institutionalized secular jur-
isprudence requires emphasizing a balance between reason and revelation since
the former is the ground onto which revelation makes-sense. This is not a
rejection of revelation in favour of reason or vice versa; but the condition of any
moral responsibility is the intellect with revelation placing an ontological limit on
ratiocination”. This careful insight is essentially an exposition of the ruse of
thought, its self-containment, and its given ideas of justice. There is a moment in
this manuscript when the wisdom and poetic energeia meet at the void where
there are no longer heroes or jus gentium, but where great poets appear.
I await the radical overturning of that global and hegemonic power which
has ossified or become a fetish. If this call for an approach of reading that allows
a balance between revealed law and reason to limit “ratiocination” is a call for a
practice that prevents our reflections from coinciding with ourselves, is the
trace of something else, does it take a step toward a horizon which cannot be
prepared or prescribed? Does this call for a balance remain an inquiry about the
balance and the limit? Is this a question of the way we read Arab and Greek
thought, an inquiry into the horizons that were taken or not taken, an aporia
about revealed law and its global power? Is this a call about balancing our
thinking in disorder?
Anna M. Agathangelou
March 29, 2022
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Introduction
The Arab World Requires “Creative Chaos”–A Legal
Technique Necessitating the De-Secularization of
International Law
When asked about her thoughts concerning the shock-and-awe induced on
Iraq in the year 2003 by the Coalition of the Willing, and on Lebanon
1
by
Israel in 2006, former US Secretary of State Condoleezza Rice replied during a
joint press conference with former Israeli Prime Minister Ehud Olmert in July
2006 that “whatever we do, we have to be certain that we’re pushing forward
to the new Middle East, not going back to the old Middle East” (Bransten, 2006;
Karon, 2006, emphases added). It appears that a “New Middle East” (NME),
after almost two decades, perceives the death and displacement of millions of Arab
civilians from their Ummah/Society of Communities (Ar. ﺔﻣﺃ),
2
and the effective
destruction and humiliation of their endogenous civilizational ontologies
informing (bureaucratic) governance (Ar. ﺔﻴﻨﻳﻭﺍﻭﺪﻟﺍ)asacreative destruction .A
destruction founded on neo-Orientalist ratiocinated imaginaries perceiving chaos
as an inevitable and necessary phase accenting Arabia while it attempts-and-fails
to transition into temporal coordinates accenting the telos of history – Latin-
European/Western modernity.
3
The nomenclature “New Middle East” entails
the replacement of an older project proposed by former US president George
W. Bush entitled the “Greater Middle East” introduced at the G-8 Summit in
2004. While the latter signifier included other majority Muslim countries such
as Iran, Turkey, Afghanistan, and Pakistan, the NME – adhering to a neo-
Orientalist mode of representation – strictly addressed countries situated in the
Arab Mashreq (Ar. ﻕﺮـﺸـﻣ
) and Arab Maghreb (Ar. ﺏﺮﻐﳌﺍ).
4
In this case, the
US administration identified with former Israeli Prime Minister Shimon Peres’s
suggestions elaborated in his 1993 book entitled The New Middle East, and
more recently, the thesis of former Israeli Prime Minister Benjamin Netanya-
hu’s entitled A Durable Peace: Israel and its Place Among the Nations released in
the year 2000. Peres and Netanyahu emphasize that the reordering of Arab
geography, demography, and the redrawing of colonial borders – referencing
the Société des Nations (also known as the League of Nations) of the mandate era
DOI: 10.4324/9781003306375-1
ْ
ِ
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2 Introduction – Creative Chaos and TWAIL
endowing France and Britain in 1923 with the “sacred trust of civilization”in
partitioning Ottoman-Arabia and transferring Ottoman-Arab populations
5
(i.e.,
Sykes-Picot) –is imperative for the security and stability of jus gentium (Eng.
International Law/Law of Nations) characterized exclusively by an International
Society of Nations adhering to Judeo-Christian morality (Peres, 1993; Neta-
nyahu, 2000; Goffman, 2002; Beckett, 2003; Barkey, 2008; Akçam, 2012;
Abou El Fadl, 2014; Özsu, 2015; Al-Kassimi, 2021).
Past and current deterministic representations of Arabs founded on neo-
Orientalist, culture talk, or race war discourses have been consistent in
adopting logical fallacies associated with semantically “closely-related concepts
such as reification or gross generalisation”(Herzfeld, 2010:248), perceiving
Arabia as a monolithic space with “inhabitants”, rather than “political sub-
jects”,anda “geographic area”rather than a “homeland”(Ar. ﻦﻃﻭ / ﺽﺭﻷﺍ)
with different civilizational and cultural-historical experiences than those
temporally reified in ratiocinated Latin-European philosophical theology
(Beckett, 2003; Al-Azmeh, 2009; Kerboua, 2016:11). The process of hypos-
tatisation (i.e., generalization) informs culturally deterministic and essentialist
reifications such as Arabness as a mode of Being or philosophical inquiry into
the nature of human knowledge (epistemology) becoming clothed, contain-
erized, and categorized as an ethno-religious Westphalian protestant ontology
of “Arabism”and “Islamism”(Kerboua, 2016). Abstractions such as the
“degenerative Arab mind”imagined as inherently anti-modern, therefore
irrational,transformsArabness into a violent and terrorizing body receptive to
genocide becoming an actual “cultural” reality. This hypostatisation is
enabled with the simplification of the message being conveyed and the
obliteration of a rational, objective, and most importantly, moral under-
standing of the (Arab) subject-now-object being obliterated. When Secretary
Rice was asked in an interview with the Washington Post in April 2005 about
her thoughts concerning the democratization process in the Near East and the
volatility that ensued following the conquest of Iraq she stated that “chaos
initially produced by democratization is creative chaos”that would “make
things better in the end”(Nafaa, 2005; Bransten, 2006; Karon, 2006; Salt,
2014). Moreover, she added in 2005 concerning the proliferation of the
“Islamist threat”–a dominant neo-Orientalist discourse constructing the
aftermath of the Arab uprisings in 2011 –that “a regional order that produced
an ideology so savage as the one we now confront is no longer serving any
civilized interest” (Salt, 2014). Bracketing her ahistorical and culturally
essentialist claims assuming that Arab space a priori produces savage ideologies
because of their homogenous Saracen cultural and/or racial attributes, the
importance of her disturbing claims is that the vision of a “New Middle East”
welcomes, and can even be said to be contingent on exercising “creative
chaos”thereby producing “constructive consequences”such as en-masse dis-
placement and human carnage supposedly necessary to transform Arabs from
“bad”to “good”Muslims (Mamdani, 2004).
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While the (re)conquest of Arabia as manifest in 2003 Iraq, and 2006 Lebanon,
were respectively Act I and II accenting sovereign figures exercising necropower
by adjudicating a strategy of pre-emptive defence legalizing extrajudicial techni-
ques of violence founded on discursive technologies of racism, I argue that the
“Islamist Winter”– temporarily dubbed the “Arab Spring”– is Act III reifying an
analogous positivist legal doctrine
6
(i.e., the Bethlehem Legal Principles). Such
reification injected the Arab uprisings into a (secular) linear temporal perception of
time seeking the implementation of a New Middle East (NME) that is no longer
“resistant to Latin-European modernity” but amenable to such inclusive exclusion
historicist telos. The implementation of a NME was legally activated following the
declaration of a war on terror in 2001 with a neo-conservative administration
advancing the legal strategy of pre-emptive defence (PEDS) – also known as the
Bush Doctrine – as a means to foment necessary chaos for the democratization and
bodily purification of the Arab world. The making of a “new” Middle East was
borne out of the ruins of the “sacred” (colonial) old. The ruin was not accidental
but deliberate since “chaos” and “destruction” are simply – from a realpolitik per-
spective and ratiocinated mind – a means to an end. The importance of creative
chaos – with other interlocutors using variants such as constructive chaos, creative
destruction, or constructive anarchy – in dismantling the post-colonial bureau-
cratic state characterizing the Arab world is by no means a hyperbole since Michael
Ledeen – a neoconservative historian advising George W. Bush and a prominent
member of the Foundation for Defense of Democracies (FDD) – stated that the
United States “is an awesome revolutionary force … for whom creative destruction is
our middle name” (Levine, 2011; emphases added; Chican, 2013). As a matter of
historical fact, Michael Ledeen proposed a project entitled the “Global Change in
the Middle East” in 2003 conceptualizing “creative chaos” as a necessary “legal
technique” in accordance with implementing a strategy that seeks the demolition
of what exists and the reconstruction of “something new … on the ruins of the
old” (Chican, 2013:5). Ledeen continues by stating that “destruction or positive
destruction is our highest virtue … it’s time for us to once again export the
democratic revolution” (Chican, 2013:5).
In essence, the theory of constructive anarchy parallels Samuel Huntington’s
idea of “stability vacuum” in that the average citizen perceives a gap/cleavage
between what exists and what should exist (Huntington, 1968). However,
depending on the dimensions of this cleavage, the instability or chaos will vary
in magnitude and impact which cannot be eliminated by reforms, but only
temporarily improved by “maintaining a variable margin of insecurity and
instability” (Huntington, 1968; Chican, 2013:5). The solution proposed by
Huntington, the author of influential political works entitled Political Order in
Changing Societies (1968) and The Clash of Civilizations and the Remaking of World
Order (1996), is that in order to avoid this vacuum of instability, the destruction
of what exists and its replacement with (Western civilizational) cultural mores is
necessarily unequivocal for (a modern) civilization. Theorists of “constructive
anarchy” assert that since instability is “controlled” and anarchy is “creative or
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constructive”, this will inevitably lead to building a new political system
capable of ostensibly ensuring the security, prosperity, and freedom of the
societies that are subject to this process. However, the moral issue with a perspec-
tive like Huntington is that it a priori identifies and sources the idea of “bloody
borders” in Arabia as being rooted in Arab-Islamic philosophical theology,
thereby, deterministically becoming the necessary causal factor in demanding the
initiation of a process of “creative anarchy”(Ar.ﺔﻗﻼﳋﺍ ﴇﻮﻔﻟﺍ)since Arab epis-
temology (Ar. ﺔﻴﺑﺮﻌﻟﺍ ﺔﻓﺮﻌﳌﺍ ﺔﻳﺮﻈﻧ)is imagined as inherently antagonistic to
Latin-European modernity (Al-Jabri, 1994).
7
Nathan Sharansky and Ron Dermer,
the authors of The Case for Democracy: The Power of Freedom to Overcome Tyranny and
Terror (2006) adopted the theoretical foundations of “constructive anarchy” to
argue that Islam is a vector of terrorism which threatens not only the only
democracy in the Arab world – Israel, but also the entire Western world. Their
remedy to such civilizational barbarism rooted in Islam particularly and Arab cul-
ture in general – since they (un)intentionally equate both – involves the use of
force to halt the sources of terrorism and the destruction of Arab-Muslim gov-
ernments promoting a culture of “hatred” and “Arabization”. Other proponents
of a “chaos that builds” are Robert Satloff – executive director of the Washington
Institute for Near East Policy (WINEP) – and pentagon Professor Thomas Barnett
who believe that a liberal humanitarian intervention by the United States of
America is not only necessary, but the only way the region can be saved from Arab
culture breeding fanatics embodying “Islamism” or “Islamist” tendencies (Satloff,
2000:33; Chican, 2013).
It should be clear that the combination of the adjective “constructive” with
the noun “anarchy” is not random, but calculated in the sense that it is meant
to highlight that Arabia is not to experience anarchy in the absolute sense of
the term per se, but a certain anarchic and chaotic condition that is deliberate,
sustained, and controlled in an attempt towards fundamentally changing an
existing “old” state and its replacement with a “new ordered” state. The con-
fusion of such hermeneutic language is not unwarranted; combining an adjec-
tive with a noun complicates strategic discourses in that it makes agents of
violence (i.e., death squads/war-machines) makers of chaos and the con-
sequence of their chaos (i.e., displacement and carnage) also a form of con-
structive chaos. This paradoxical but careful selection of words is articulated by
Secretary of State Rice when she says
there are views that democracy generates anarchy, terrorism, and conflict. The
reality, however, is different, in that it is the very anarchy that provides the
programmatic foundation to implement the American-inspired democracy.…
The anarchy that is created by the process of democratic transformation in the
initial phase is a constructive one which can ultimately lead to a better situation
than the one the Middle East is experiencing at the moment.
(Chican, 2013:7; emphases added)
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Put differently, according to a jus gentium reifying positivist jurisprudent scholas-
tics, creative anarchy is not about anarchy as a goal in itself but rather is an
exogenous phase supposedly required to implement a NME conceived by its
architects as an “anarchy that builds”(Chican, 2013). This is clear in Secretary
Rice’s statement when she describes the consequences produced by chaos –an
exodus and slayed bodies engulfing the Arab world –as representing the “birth
pangs of a new middle east”(Bransten, 2006; Karon, 2006). In other words,
while ambiguity, instability, and chaos are commonly thought of as possessing
negative connotations, when instability becomes “controlled”,ambiguity “con-
structive”, and chaos “creative”they suddenly become more palatable for “lega-
lizing” extrajudicial measures imagined as necessary practices to “aid” and
“purify”Arab-Muslims “temporally stagnating”since the telos of history is Latin-
European philosophical theology, or more specifically, a (secular) Judeo-Christian
rationalization of law and (im)morality.
Therefore, I argue, that the concept and theory concerning “constructive
anarchy”is not just another “machination”to cover the failure of US hege-
mony in Arabia, but rather that anarchy can only be destructive as highlighted in
the post-Islamist Winter period of 2011 (Chican, 2013:9). It becomes “crea-
tive”only to the extent that the destruction committed by the anarchy is con-
structive for the interests of those provoking and managing it. I say this for
three interrelated legal-historical developments. One, the Bush Doctrine of
2002 was reaffirmed through the Bethlehem Legal Principles of 2012 enabling
and rejuvenating the development of legal doctrines adjudicating acts and
policies legalizing extrajudicial practices (i.e., torture, carnage, and/or indis-
criminate bombardment) by (re)formulating legal doctrinal laws informing jus
gentium (i.e., pre-emptive war, immanent threat, and sovereignty). Two, it is
quite “rational”and “constructive”to place the “Islamist Winter”of 2011 and
the anarchy, chaos, and destruction it produced in the Arab world directly in
relation to the theory of “chaos”that “destroys”in order to “build”since the
whole narrative constructing the Arab uprising in 2011 as an “Islamist
Winter”–according to neo-Orientalist analysts –is founded on the 9/11
dictum postulating that terrorism and Arab civilization are synonymous thus
sourcing the descent of Arabia into chaos on its primitive temporal positionality
mentally debilitating “Arab mind”. Thirdly, and most importantly, the Arab
uprisings of 2011 were translated in Western capitals as intrinsically connected
to the “liberation”of Iraq in 2003. Kanan Makiya, a Brandeis professor and
one of the main intellectual architects and proponents of the Iraqi invasion
during the Bush administration stated quite frankly that “the Arab Spring star-
ted in Iraq”and that the attack “paved the way for young Arabs to imagine”
the removal of despots (Majumdar, 2011; Makiya, 2013; Maass, 2013; Husain,
2013). Makiya’s reductionist connection between 2011 and 2003 –amongst
others such as Majumdar (2011) –perceive constructive chaos in Arabia as a
means of positive stability to redeem Arabs from their barbaric Self thereby vin-
dicating and transforming the actions of “recognized sovereigns”from conquerors
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to liberators (Anghie, 2004; Mamdani, 2004). Makiya claims that “there was
hardly any war to speak of in 2003”
8
thereby shifting the blame for Iraq’s des-
cent into chaos and anarchy as attached to Arab culture inherently being prone
to “Islamist terror”.
Rather than perceiving constructive chaos as some sort of Old Testament
script where life and creation are born from the matrix of chaos, and that
anarchy and disorder were the origins of the universe itself, Arabs were repelled
rather than inspired by such ungodly “constructive anarchy”. Former C.I.A
officer and Middle East expert Paul Pillar criticizes the comparison of the
conquest of Iraq in 2003 to the “Arab Spring” of 2011 by saying that “if the
violence, disorder, and breakdown of public services in Iraq were the birth pangs
of a new Middle Eastern order, most people in the region wanted nothing of it”
(Maass, 2013; emphases added). In other words, the Iraq war became the
blueprint – according to a positivist jurisprudence – for how transformation in
the Arab world should and would take place with a series of inter-connected
chaotic moments – such as the “Islamist Winter” of 2011 involving Arab
capitals being ransacked by death squads – being interpreted, appropriated, and
managed as simply another opportune constructive moment for Arab demo-
graphic and geographic reconstruction. Approaching the Arab world through a
(neo)-Orientalist lens of “creative anarchy”, I argue, is premised on the reduc-
tionist imaginary that the Arab world consists simply of a geography inhabited by
Bedouin objects waiting to be “constructively engaged”, rather than political
spaces comprising political subjects with different civilizational values and
experiences to that characterizing Latin-European philosophical theology. The
extrajudicial consequences of such essentialist framing is given credence when
we remember that former CIA director John Brennan (2013–2017) – one of
the main advocates of Operation Timber Sycamore’s creative destruction pro-
ducing “modern Arab Dresdens” after 2011 – stated on February 2016 that the
Middle East … is racked by more instability and violence and inter-state
conflict than we’ve seen certainly in the past 50 years … and the amount of
bloodshed and humanitarian suffering is I think unprecedented. It’sb
een five
years now since the Arab Spring started to take root.… Al Qaeda and terrorist
organizations did not trigger that, but they’ve taken full advantage of it.
(Engel, 2016; Allen, 2019; emphases added)
The importance of creative anarchy producing chaotic developments such as
carnage and a “crisis” of displacement – with members of jus gentium authoriz-
ing agents of terror – is that it reveals the deadly technologies of racism and
mechanisms of violence inherent in sovereignty as a positivist juridical concept
endowing sovereign figures with the power to formulate legal doctrines that
ultimately subjugate Arab life to the power of death (necropower) and decide that
they “must die”. Therefore, this monograph is interested in deconstructing
9
jus
gentium – by adopting a Third World Approach to International Law (TWAIL)
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in tandem with necropolitics as paradigms of analysis – to disclose that it is because
jus gentium valorizes positivist jurisprudent scholastics postulating an unbridgeable
cultural gap between an (immanent) Athenian ontology as a universal sovereign
subject, and a (transcendental) Mad-nian ontology as the particular object denied
sovereignty, that leads ratiocinative sovereign figures to legally exercise necro-
power on the Arab body. This discloses the inherent inclusive exclusion ethos of
sovereignty – therefore jus gentium – originally figuring Arab subjects as muselmän-
ner
10
for the ontological coherence of a secular-liberal identity of belonging (i.e.,
citizenship) informing Latin-European modernity.
That is, Arab ontology being perceived as culturally primitive and mentally
ı
-
ınian subject to the exception –incapacitated leads necropower to elevate the Mad
therefore banned from the social and juridical order – thus making nobody
accountable for their death or exodus since their exclusion from jus gentium as
objects rather than subjects of sovereignty is necessary for the inclusionary
coherence of jus gentium. Therefore, a muselmänner is a body that is identified as
inhabiting a geography/abject space rather than a political society, and a body that
is killed with impunity because their life is deemed worthless. With the telos of
history being a secular (immanent) modernity/civilization and since modernity
and civilization are willed by sovereign-power informed by a positivist jus gen-
tium then the need to produce creative chaos is related to sovereignty – there-
fore liberal-secular modernity as a project – demanding that for a universal
society to live and remain healthy it needs its threatening opposite to define its
purity in absolute difference to that particular “contaminated society” who
“must die” or at least be “creatively quarantined”. Sovereignty and its inter-
related teleological narratives of development, modernization, and civilization
valorizing positivist jurisprudence are therefore, I argue, necro narratives that
involve technologies of racism and mechanisms of enmity that revitalize a
ratiocinative (secular) mode of Being by needing to destroy, humiliate, and
transform the Arab Saracen through the essentialization of their authentic Being
by perpetuating “race war” discourses. In other words, “creative chaos” is an a
priori practice and consequence of an International Law dominated by positivist
scholastics which deduces that cultural/racial differences between a “universal”
subject and a “particular” object could be transformed into a legal issue that
necessitates a “civilizing mission” ostensibly seeking to “temporally modernize”
the degenerative Arab society.
Foucault alludes to “race war” discourses to highlight how since the 19th
century, racism informed the “rationality” of sovereign governance with the state
no longer being an instrument “that one race uses against another”,but rather
that “the state is, and must be, the protector of the integrity, the superiority, and
the purity of the race” (2003:81). Therefore, with modernity being willed by a
sovereign figure, and since sovereignty evolved into becoming bio/necropolitical
11
,
then modernity is a racialized project that in effect – when analysed through a
necro/biopolitical paradigm of analysis – reveals the “ideological foundation for
identifying, excluding, combating, and even murdering others, all in the name of
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improving life not of an individual but of life in general”(Lemke, Casper, and
Moore, 2011:42). Therefore, deconstructing jus gentium using a bio/necropolitical
paradigm highlights that the technologies of racism and mechanisms of enmity in
tandem with techniques of domination and violence informing sovereignty as a
positivist juridical concept makes creative chaos possible because racism –inscribed as
sovereignty’s inherent technology of power –imagines Arabs as the living-dead
threatening the purity and health of a modern Western civil society.
It is racism that allows sovereignty to exercise its most extreme power
(necropower) and produce its original activity (muselmänner/homo sacer) by sub-
jugating life to the power of death since death is a necessary “creative chaos”
needed to improve the quality of “living”life because Arabs are imagined as
“ontologically dead”(Agathangelou, 2011). Sovereignty, therefore, deciding on
the exception by exercising necropower delivers benevolent discourses that while
appearing to derive from a genuine “humanitarian responsibility”ultimately
leads to masking and sanitizing the murder of the Arab as abject-Other (Kris-
teva, 1982; Kelly, 2004; Mamdani, 2010). In other words, the act of creative
chaos and its subsequent destructive developments accentuates that racism
continues to animate jus gentium in that it acts as a “purity-metric”determining
what legal doctrines need to be (re)formulated and developed to maintain and
police the supposed unbridgeable cultural gap dictating “who can live”and
“who must die”. Motivated thus, adopting a hermeneutics of suspicion to
deconstruct and critique jus gentium identifies the Bush Doctrine as playing a
vital role after 9/11 and especially after 2011 in transforming Arab space into
spaces of exception (Agamben, 1998a, 1998b, 2005); abject-spaces (Kristeva, 1982)
and/or death-worlds (Mbembe, 2003) imagined as inhabited by muselmänner.
Sovereignty – therefore jus gentium – inherently being bio/necropolitical
directly promotes (re)producing the racist logic of sovereignty founded during
the colonial encounter and inculcated in international law by making Arabs
victims of Othering strategies sorting them as things less than human and a
necessary evil for the constant refurbishment, (re)actualization, and permanence
of (Western) modernity and its civilizational privileges (i.e., citizenship) (Nyers,
2006; Mamdani, 2010; Abou El Fadl, 2014).
Various intellectual commentators early on during the Arab uprisings in 2011
located in the US such as Marc Lynch (2011, 2013), and France such as Bernard
Henri-Lévy (2015), began using the neo-Orientalist term “Arab Spring”
12
and
“New Middle East” by perpetuating reductionist thematic discourses such as
“despotism”to denote the Arab world struggling to attain temporal coordinates
accenting Latin-European philosophical theology informing liberal-secular
democratic societies (Kerboua, 2016; Ventura, 2016). By late 2011, the Arab
world supposedly experienced what neo-Orientalist scholars and hegemonic
political stratums dubbed an “Islamist Winter”.The “Arab Spring”–according
to the reductionist discourses espoused by neo-Orientalist scholars –turned into
an “Islamist Winter”because the (historicized) temporal positionality of an Arab
mode of Being is inherently averse to reason but receptive to terror. Sovereign
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figures, therefore, transformed an ahistorical deterministic statement into a legal
difference by (re)formulating legal doctrines situated in jus gentium as a means to
depoliticize Arab inhabitants of the Mashreq and Maghreb. Sovereign figures
adjudicated legal principles reminiscent of the colonial encounter in the 19
th
and
20
th
century by arming various warring death squads weaving an eternal web of
foreign sponsored armed conflicts catalyzing human carnage and forced dis-
placement (Thomson, 1996; Mamdani, 2004; Al-Kassimi, 2015). According to
the United Nations High Commissioner for Refugees (UNHCR), the Arab
Syrian Republic boasted an internally displaced population (IDPs) of around 8
million, and 5.6 million refugees as of the calendar year 2018–2019 (UNHCR,
2018a, 2018b; UNHCR, 2019). If we were to add the human cost and dis-
placement figures occurring across Arabia since 2001 – including Syria – such as
Libya, Iraq, and Yemen, the overall displacement figure exceeds 20 million
inhabitants, and human cost figures surpass six million dead Arab bodies.
The largest exodus in the 21
st
century was realized with the US, European
allies, and local Arab comprador elites rewriting and rethinking international law (i.
e., PEDS and Bethlehem Principles) after 9/11 in a way that reaffirmed the
inherent necropower of sovereignty as a positivist juridical concept that wills jus
gentium into being thereby managing and manipulating Arab life by rendering it
bare-life. Another important contribution that I seek to highlight is that displaced
Arabs are being denied the capacity to speak and voice their opinions with
sovereign powers subsuming their displacement problem within a liberal huma-
nitarian order utilizing a technical-problem-solving vocabulary characterizing
Arab displacement as a “crisis” or “emergency” (Nyers, 2006). The issue with a
humanitarian discourse supposedly remedying the plight of Arab abjectivity is that
it is sovereign logic that subsumes the solutions extended (i.e., the Regional
Refugee Resilience Plan-3RP) using a positivist interpretation of jus gentium
(Fiddian-Qasmiyeh, 2015; Khallaf, 2016; Jamal, 2016; Makdisi and Prashad,
2016; Makdisi, 2019). The danger in subsuming the displacement problem of
Arabs using a positivist juridical interlocutor – a ratiocinative sovereign figure –
risks not only masking and (re)affirming the inherent necropower of sovereignty
-
needing to postulate an unbridgeable cultural gap between the Athenian and Madı
nian mode of Being to continuously rejuvenate jus gentium,but also vindicates
sovereign figures and local Arab comprador elites complicit in transforming Arabia
into necropolises (Eng.: cities of the dead) by exercising necropower.
Deconstructing jus gentium by adopting an anachronic and hermeneutically
suspicious genealogical reading of legal-history highlights that jus gentium –
especially since the adjudication of defensive imperialism in 2003 – requires the
Arab body as an inclusive exclusion for the ontological security of ratiocinated
Latin-European epistemology. The slaughter of Arabs evoking sovereign power
deciding over death (necropower) – using war-machines – is en-masse because
they are imagined as ontologically-dead bodies whose death is inconsequential
but necessary for the “order of things”. Adhering to the intellectual framework
of TWAIL and necro/biopolitics to critique the inherent cultural relativism
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situated in jus gentium highlights how the (re)formulation, (re)affirmation, and
proliferation of exceptional legal doctrines (Bush Doctrine and Bethlehem
Principles), privatization of violence (death squads), and clandestine operations
(Timber Sycamore) were not only central in multiplying and transforming Arab
cities into death-worlds inhabited by the living-dead, but reveals the hidden soli-
darity between sovereignty and humanitarianism
13
(Mbembe, 2003; Nyers,
2006; Mutimer, 2007; Mamdani, 2010). Sovereign figures implicated in the
proliferation of “creative chaos” are cleansed from juridical accountability by
appropriating the consequences of chaos (i.e., displacement and carnage) and
subsuming it under a liberal humanitarian order upholding “human rights”
seeming to include the displaced Arab body in jus gentium but only to end up
placing them under an apolitical category of “refugeeness” stripping them of
their subjective consciousness.
14
A liberal humanitarian order while seeming to
include the Arab body as a subject, is quick to exclude them from the privileges
endowed to subjects of jus gentium (i.e., citizenship) because (national) citizen-
ship is only intelligible with its (positivist) binary opposite – the Arab as refu-
gee – constructed as temporally primitive. An Arab mode of Being, therefore, is
exclusively intelligible to Western modernity by a priori figuring the Arab body
as refugee using Othering-strategies constructing them as embodying threatening
cultural traits endangering the purity of a Westphalian “nation-state”, and the
most “civil” category of belonging (i.e., citizenship) accenting Latin-European
modernity (Nyers, 2006; Perezalonso, 2010; Mamdani, 2010; Zembylas, 2010;
Fiddian-Qasmiyeh, 2016, 2018).
Aetiology of Third World Approaches to International
Law (TWAIL) – AReflexive Methodology Contouring
Subsequent Chapters
Before I elaborate on the political and intellectual commitments of TWAIL as a
scholarly movement, it is vital to succinctly elaborate on the formative legal and
historical phases preceding the development of Third World Approaches to
International Law (TWAIL).
15
For over three decades, international legal scho-
larship has split into multiple competing factions with “mainstream” international
law scholars valorizing and reifying a naturalist/positivist jurisprudence on one
side, and critical (anachronic) legal-historical scholars advocating for new
approaches to international law (NAIL) on the other. While it is demonstratively
true that both approaches are concerned with the same subject matter that is law,
both approaches are not simply different approaches to international law, but in
many ways entirely separate disciplines with different perceptions – therefore
objectives – of international law (Mutua, 2000; Anghie, 2004; Sunter, 2007;
Reeves, 2009; Gathii, 2011; Eslava and Pahuja, 2012). Positivist legal scholars not
only deny and ignore the contributions of alternative voices critiquing the
dominant racialized discourses and jurisprudent schools engineering jus gentium,
but when they are acknowledged they are deterministically categorized and
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treated as a homogenous group of scholars who characterize the “sins of post-
modern theory” (Sunter, 2007:476). That is, they are described as being
rhetorically colourful, programmatically vacuous, politically dysfunctional,
inward-looking, and exceedingly subjective (Sunter, 2007). Unfortunately for
methodological hubris, mainstream legal scholars overlook the fact that NAIL
scholars are critical of contemporary international law and the biases under-
pinning its various legal doctrines by being attentive to the work of main-
stream international legal scholars which directly influenced the emergence of
TWAIL. Before delving into TWAIL-ers intellectual and political movement
including their normative commitments, a few words linking the influence of
Critical Legal Studies (CLS) and NAIL in developing TWAIL is noted before
elaborating on the variety of approaches within TWAIL scholarship.
CLS began in the mid-1970s when a group of American legal scholars began
questioning the determinacy of positivist legal reasoning producing many apriori
assumptions of mainstream legal thought. CLS scholars were inspired by the Cri-
tical Theory school – also known as the Frankfurt School – including social the-
orists such as Theodor Adorno, Jürgen Habermas, Herbert Marcuse, and Walter
Benjamin who sought to critique the telos of history being a “modernity” founded
on a positivist social theory (Sunter, 2007). Critical Legal Scholars proceeded to
deconstruct the positivist rationalist underpinnings of modern jurisprudence to
“reveal their political and ideological underpinnings” which according to Kennedy
(1986) and Sunter (2007) was inspired by theorists from the Frankfurt School
being sceptical towards a (positivist) rationalist legal jurisprudence. For CLS scholars
such as Hutchinson and Monahan (1984), ratiocinated law is “simply politics dressed
in different garb; it neither operates in a historical vacuum nor does it exist inde-
pendently of ideological struggles in society” (as cited in Sunter, 2007:484). By
retaining their critical and deconstructionist methodology, CLS scholars in the
1990s began reflecting on developing a new stream of critical international law
which became known as NAIL.
NAIL scholars endeavoured to do research of and in international law by
becoming methodologically reflexive “even if this meant concluding the inter-
national law itself was incoherent” (Sunter, 2007:484; Gathii, 2011; Eslava and
Pahuja, 2012). With the main focus of their critical deconstruction involving a
critique of the modern (secular) liberal foundations of international law as being
“internally incoherent” (Purvis, 1991:92), NAIL legal scholars attempted to
illustrate the multiple positivist ideological underpinnings of a “modern liberal
secular” international legal order by casting doubt on the possibility of objectivity
(Sunter, 2007). This meant that an international law accented by a positivist
jurisprudent school projected a false sense of rationality, legitimacy, neutrality,
and universality when in reality it reflected historically contingent political power
and an unavoidably subjective choice between values (Sunter, 2007). This is
evident, for example, with jus gentium unequivocally claiming that Westphalian
“sovereign-centric” conceptions of world order and nation-state ontologies of
governance are most superior and rational civil ideas of political order that “fill”
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and “halt” political vacuums (Sunter, 2007). Even though David Kennedy
decided to retire NAIL as an institutional project in 1998 at a conference
entitled the “Fin de NAIL”, it would be TWAIL – founded in 1997 at a
conference at Harvard Law school – which would prove to not only be part
of NAIL’s larger project, but also share some institutional and methodological
commitments with CLS and NAIL in critiquing and deconstructing interna-
tional law because of their suspicion of mainstream (positivist) international law
developing underdevelopment (Frank, 1998; Anghie and Chimni, 2003;
Sunter, 2007; Al-Kassimi, 2018; Ramina, 2018).
16
Considering the multiplicity of “cultural differences”
17
forming the legal phi-
losophical history of a “Third World” approach to international law, TWAIL was
and continues to clearly attempt to distance itself as an approach from the domi-
nant positivist legal doctrines informing jus gentium. TWAIL-ers do not reify the
(post-colonial) idea claiming that knowledge production concerning the Third
World should emanate primarily from the Global South, rather TWAIL scholar-
ship seeks to intervene within the discourses of international law located in Oriental
and Occidental capitals by emphasizing that any scholar regardless of their carto-
graphic location are invited and encouraged to engage in such social intervention.
As noted by Gathii (2011:35), North American based TWAIL-ers “are only part
of a larger tradition of third world scholarship in international law that dates back
decades”. Therefore, anyone may become part of the TWAIL movement since
there is no need to subscribe to a party program or an exclusive approach or
methodology. Chimni (2011:17) notes that TWAIL is a “loose network of scho-
lars whose work is animated with the concern to establish a truly universal inter-
national law that goes to promote a just global order”. Therefore, no one
“officially” joins TWAIL since one becomes a TWAIL-er by self-identifying with
TWAIL’s principles, commitments, and intellectual movement (Ramina, 2018).
The central project of TWAIL consisting of challenging the hegemony of domi-
nant discursive narratives of international law benefits from the fact that there is a
diverse range of scholars adopting a variety of approaches and methodologies
conducting TWAIL scholarship because unlike mainstream, and some critical
movements, it is not characterized by “dominant” approaches, figures, and meth-
ods that set the boundaries of research inquiry (Gathii, 2011; Ramina, 2018).
Rather, TWAIL as a political and intellectual movement with principled com-
mitment consists of a “fluid architecture of many individuals who mix, reuse, and
re-combine various TWAIL and non-TWAIL ideas and themes.… As a result
there is no full knowledge of all the parts, or even anything remotely suggesting
control” (Gathii, 2011:37).
This explains how TWAIL scholarship is capable of producing critical scholarly
work that navigates differences along with many ideational factors such as race,
class, gender, ethnicity, economics, and trade, together with a variety of inter-
disciplinary behaviours including the social, theoretical, epistemological, and
ontological. Therefore, TWAIL research is methodologically eclectic and reflexive
since it draws from a number of “different disciplines and represents a diverse range
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of theoretical leanings – postcolonial, Marxist, post-structuralist, and feminist”,
thus sharing the “political, ethical and academic commitment to look at the his-
tory, structure, and processes of international law and institutions from a particular
standpoint: that of the peoples of the Third World” (Parmar, Odumosu, and
Mickelson, 2008:351).
TWAIL’s Hermeneutically Suspicious Epistemological
Inquiry: Counter-Hegemonic, Anachronic, and
Anti-Hierarchical
While TWAIL-ers emphasize their methodological eclectic diversity in
approaches, they are clear that TWAIL is to be understood both as a “political
and intellectual movement” that cannot be severed from its “political commit-
ments” (Mutua, 2000; Anghie, 2004; Okafor, 2005; Sunter, 2007:487; Gathii,
2011; Eslava and Pahuja, 2012). Thus, while TWAIL-ers are not a homogenous
intellectual group, they do share political commitments or a “checklist” of con-
cerns consisting of themes and/or principles fundamental to a TWAIL approach.
James Gathii (2000, 2011) for example claims that the central commitment of
TWAIL is bringing the problématique of colonialism to the centre when discussing
international law by remaining cognizant of the fact that the colonial legacy of the
19
th
and 20
th
century continues to position a substantial constraint on former
colonies to the benefit of their former colonial exploiter. Most if not all former
colonial spaces have adopted the Westphalian ontology informing a “Western
State” and continue to cherish legal structures that were instrumental in their
“suspension from jus gentium” with former colonies still carrying
forward large elements of the inherited legal structures from their metro-
pole; culturally many have adopted as an official language the language of
their former colonial powers; religious majorities in these former colonies
with the exception of middle eastern countries have adopted Judeo-Christian
morality like their former colonial powers.
(Napoli, 1998; Sunter, 2007; Gathii, 2011:38, emphases added)
TWAIL scholars are committed to deconstructing the legal-historical develop-
ments occurring during different “cultural encounters” primarily from a temporal
rather than the limited spatial frame (i.e., West versus East – vice versa). This com-
mitment seeks to accentuate the immoral consequences of (positivist) legal for-
mulations situated in jus gentium being characterized by a “purity-metric”
separating different modes of Being using reductionist imaginaries temporally situ-
ating the Arab, for instance, a priori “outside law” since they are constructed as
naturally desecrating (secular) “universal law” (Mickelson, 1998; Gathii, 2000,
2011; Sunter, 2007; Al-Kassimi, 2018). TWAIL scholars emphasize their will-
ingness in wanting to be capable of selecting what they deem important to incor-
porate in their endogenous culture from exogenous Latin-European cultural
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mores (Gathii, 2000, 2011; Sunter, 2007). Also, they are committed to advocating
an appreciation of the inherent interconnection between different areas of law –
whether in the “Orient”or “Occident”–and that every culture has a particular
jurisprudence that notices the limits of “universalism”(Mickelson, 1998; Sunter,
2007). TWAIL scholars also challenge the capability of an international law
adhering to positivist jurisprudence in being capable of promoting justice, for
instance, in Arabia, especially since positivist scholasticism makes a distinction
between “morals” and “law” thus understanding legal doctrines informing jus
gentium as being historically contingent on secularized Latin-European philoso-
phical theology (Mickelson, 1998; Sunter, 2007; Gathii, 2011; Koskenniemi,
2002, 2011; Al-Kassimi, 2018).
Motivated thus, the “checklist”of a TWAIL methodology is driven by three
purposeful objectives: 1) deconstruct the use of international law as a regime
that includes legal doctrines that reify a particular philosophical theology
creating and perpetuating a racialized (temporal) hierarchy of international
norms and institutions; 2) instead of dismantling international law as a regime,
it seeks to (re)construct and resist positivist legal concepts that perpetuate
domination thereby suggesting the construction of an alternative legal edifice for
international governance; and 3) it seeks to eradicate and emphasize the legal
policies that continue to make the underdevelopment of non-European spaces
possible (Mutua, 2000:35). Therefore, TWAIL’s political commitments – dis-
cussed below as counter-hegemonic, anachronic, and anti-hierarchical respectively –is
committed to a hermeneutics of suspicion informed and characterized as a naturalized
epistemological inquiry (Sunter, 2007). That is, TWAIL’s stance towards international
law is “one of hermeneutical suspicion” and not “post-modern scepticism”
thereby engaging in the intellectual deconstruction of legal doctrines informing jus
gentium thus maintaining hope for enlightened reconstruction (Sunter, 2007:476).
Anghie and Chimni (2003:96) advocate for an approach to international law based
on a hermeneutics of suspicion because it perceives
international law in terms of its history of complicity with colonialism, a
complicity that continues now in various ways with the phenomenon of
neo-colonialism, the identifiable and systematic pattern whereby the
North seeks to assert and maintain its economic, military, and political
superiority.
As a naturalized epistemology,TWAIL’s methodology reflects on the aetiology
of doctrines continuously dominating international law, i.e., sovereignty,
nation-state, secularism, free-market, citizenship, and the realpolitik structure
of “international relations”(Anghie, 2004; Sunter, 2007; Eslava and Pahuja,
2012). TWAIL’s political commitment adhere to a methodology that
according to Leiter (2004:74) seeks a “naturalistically respected account of
how we arrived at our current, conscious self-understandings”by critiquing,
resisting, and deconstructing classical cannons and juridical concepts
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animating jus gentium – therefore Latin-European epistemology – which are
in turn reified by mainstream legal scholars. Since epistemology is under-
stood as a philosophical inquiry into the source, scope, and structure of
knowledge or a philosophical inquiry into the nature of human knowledge,
TWAIL’s naturalized approach to epistemology is therefore concerned with
the causal factors influencing knowledge claims (Quine, 1969; Kitcher, 1992;
Pacherie, 2002).
This means that the inductive method adhered to by TWAIL scholars is critical
of the deductive method promoted by a particular reading of “Aristotelian” and
“Cartesian” ratiocentric thinking.
18
Naturalism questions the fortuna armchair
approach to philosophy and its attempts at providing (culturalist) apriori solutions
to philosophical problems.
19
As Pacherie (2002:299) puts it, “one should not take
the label ‘naturalistic epistemology’ to be referring to a single, well-defined, doc-
trine. Rather, this label functions as an umbrella term covering a set of approaches
that question in more or less radical ways the tenets of classical epistemology and
insist on the relevance of empirical research to epistemological investigations”.
Therefore, TWAIL scholars are interested in importing the posteriori insights of the
sciences into the philosophical arena, thereby bracketing or even replacing the
immoral and unjust approach intrinsic to international law as a legal regime which
embodies a set of legal doctrines that maintain the idea that the telos of history is a
priori the universality of liberal-secular modernity. TWAIL as a methodology rejects
the ratiocentric foundationalist idea that apriori knowledge trumps a posteriori
knowledge. This is not to say that TWAIL-ers reject the possibility of apriori
knowledge outright; however, they are suspicious of “universal truths and creeds”
and reject the argument that apriori knowledge is a “class of knowledge that is
superior” and “immune from the critiques” of posteriori knowledge (Sunter,
2007:496).
TWAIL’s naturalized epistemological inquiry being an intellectual
deconstructive endeavour underlining the importance of unmasking and
resisting the “legal consequences” inherent to (positivist) international law –
stipulating an unbridgeable cultural gap between Arabia and Latin-Europe –
inevitably makes TWAIL research committed to a “hermeneutics of suspicion”.
Leiter (1998:150–151, emphases added) declares the link between a naturalized
philosophical inquiry into knowledge with a hermeneutics of suspicion by
saying: “When one understands conscious life naturalistically, in terms of its real
causes, one contributes at the same time to a critique of the contents of con-
sciousness: that, in short, is the essence of a hermeneutics of suspicion”.Simi-
larly, Kitcher (1992) and Leiter (1998:192–193, emphases added) identify the
(re)introduction of psychology into epistemology and a suspicion of the “a
priori” as the central feature of a naturalized epistemological inquiry by saying
that we should be
suspicious of the epistemic status of beliefs that have the wrong causal etiology.
… To be sure, beliefs with the wrong causal etiology might be true, but
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since they are no longer cases of knowledge, we have no reason to presume
that to be the case.
TWAIL’s research methodology is then interested not primarily with the analytical
critique of doctrinal claims of international law as much as with the aetiology of
those (suspicious) claims; that is, the historically contingent influences that lead to
their rational institutionalization (Sunter, 2007). The task of a hermeneutic is to
establish a criterion enabling researchers to begin distinguishing between true and
false information thus engaging in an act that attempts to make the meaning of an
expression intelligible by appealing to the act of interpretation and translation
(Jasper, 2004). With hermeneutics understood as both the art and the philosophy
of interpretation, it is then a systematic inquiry into “meaning according to a spe-
cific set of philosophically grounded principles” (Sunter, 2007:498).
According to Sunter (2007), while there are several ways of interpreting mean-
ing – therefore several types of hermeneutics – TWAIL as a methodology is
principally committed to hermeneutics of suspicion. A hermeneutics of suspicion is
an interpretive account that reads against the grain by attempting to expose hidden
meaning from the expression-maker and not the expression itself because there
often exists unexamined “causal forces that explain the real reasons that we make
certain oral and written expressions” (Sunter, 2007:498). In other words, by
understanding the causal factors influencing jurists, policymakers, politicians,
journalists, and other speech actors, we are in a better position to evaluate the
veracity and consequences of their written and spoken articulations.
20
Jean Paul
Ricœur perceives interpretation as an exercise of suspicion by ascribing the
development of a hermeneutics of suspicion to the philosophies of Nietzsche,
Marx, and Freud whom he claims possessed a methodological aim of a herme-
neutics that is “demystifying” or committed to the “reduction of the illusions and
lies of consciousness” (Ricœur, 1970: 32). For TWAIL-ers, hermeneutics of sus-
picion is vital since it allows the researcher to engage in critical self-reflection by
attempting to determine the true meaning of doctrines embodying jus gentium and
whether they are founded on prejudice or justice. Motivated thus, TWAIL scho-
lars do not claim that positivist scholars have “bad intentions”, but instead contend
that despite their “good intentions”, mainstream scholars are insufficiently aware of
their temporal Latin-European bias that underpins their socio-political claims in
general, and jurisprudence in particular (Sunter, 2007:499). Needless to add then,
TWAIL’s hermeneutics of suspicion must surely be balanced by an equally strong
hermeneutic of self-doubt.
Therefore, the commitment of TWAIL countering-hegemonic convictions is
based on the analysis of historical and cultural evidences that point to interna-
tional legal doctrines a priori identifying Latin-Europe as the exclusive qualified
creator and sociable subject worthy of constructing, therefore, making history.
TWAIL-ers – dedicated to countering political hegemony – emphasize that
concepts and teleological narratives informing jus gentium are highly positivist
since they adopt a non-reflexive problem-solving logic reifying quantitative
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approaches over qualitative approaches thus generalizing or universalizing endo-
genous cultural ideas and experiences onto to the “international” by objectifying
its subject matter (Mutua, 2000; Anghie, 2004; Sunter, 2007; Ramina, 2018).
That is to say, TWAIL-ers are suspicious of hegemonic narratives which are
based on the idea that Latin-European knowledge structures are the exclusive
and superior blueprint informing the idea of civilization and/or modernity
(Sunter, 2007; Al-Kassimi, 2018). Cultural hegemonic ideas of anthropology and
sociology influencing the legal doctrines situated in jus gentium embody a
hubristic conviction that Latin-European ratiocinated philosophical theology
informs the natural temporal progression of Being.
A TWAIL belief linked to the commitment of countering hegemony is sus-
picious of making the particular history of Latin-Europe the general history of
the world. According to mainstream positivist legal jurisprudence, cultural hege-
monic narratives such as development and modernity are solely attained by
peoples adopting liberal-secular cultural mores informing Latin-European civili-
zation. It appears that “Western modernity” is the “blueprint; the holy writ of
progress and without it, those ‘uncivilized’ countries would be helpless” (Al-
Kassimi, 2018:2). A counter-hegemonic commitment is cognizant of the fact that
the formulation of legal doctrines transforming cultural differences into legal dif-
ferences was fundamental to the formulation of jus gentium by subordinating Arab
societies, for instance, to particular secular ideas conceptualizing “modernity” and/
or “civilization”. It is for this reason that TWAIL-ers have generally viewed
international law (i.e., jus gentium) as a hegemonic (legal) regime of domination
disguised using humanitarian discourses of liberation. TWAIL-ers committed to a
counter-hegemonic principle in deconstructing jus gentium are mindful that after
the conclusion of the British and French mandate system in the Arab world after
WWII, and the League of Nations ceasing operations in 1946, that “national
independence” was largely illusory and that while formal colonialism ended, post-
colonial spaces were still bonded economically, socially, and politically by hege-
monic modalities of governance that perceived Latin-Europe as the sole zone
worthy of knowledge production and imitation (Bedjaoui, 1985; Slater, 1995;
Mutua, 2000; Al-Kassimi, 2018).
The new world order maintained and policed by the establishment of the
United Nations in 1945 had two important “universal” legitimizing features: 1)
declaring that newly (in)dependent spaces have the right to “self-determination”,
and 2) that they were to be governed by “human rights” (Mutua, 2000:34;
Anghie, 2004). However, with almost a century nearing since the establishment of
the UN in 1945, the primacy of the Security Council over the UN General
Assembly during the 20
th
and 21
st
century made a “mockery of the notion of
sovereign equality among states” (Mutua, 2000:34). This led critical legal scholars
to claim that the use of the UN as a front by former colonial powers “simply
changed the form of European hegemony, not its substance” (Sathirathai, 1984;
Bedjaoui, 1985; Otto, 1996:337; Mutua, 2000; Anghie, 2004).
21
It is important to
remember that TWAIL’s counter-hegemonic commitment should not be
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interpreted as observing the UN apriori as a hegemonic organization. The UN was
and continues to be an important organization voicing the concerns of the Global
South – as made evident with the rise of the Group of 77, the UNCTAD, and
UNRWA – however critical legal scholars suggest that Third World approaches
to international law underscore the hegemony of the UNSC over the UN Gen-
eral Assembly by overlooking doctrines, policies, or concerns that are either
explicitly or implicitly founded upon a “civilizational ladder” identifying Third
World suggestions and contestations apriori as irrational.
TWAIL is suspicious of hegemony – legitimized and overlooked by the UN
through the cloak of universality – refusing to call for a UNSC meeting regarding
violations of international law and the selective use of UN organizational agencies
to advance the foreign policies of Western powers (Slater, 1995; Mutua, 2000).
The legal examples are numerous, but it suffices to mention how the US and its
European allies conquered Iraq in 2003 without UN approval, and more recently,
the UNSC legally sanctioning in 2011 a “humanitarian intervention” in Libya
22
under the legal doctrine known as the Responsibility to Protect (R2P) without con-
sulting or cooperating with the African Union (AU), or even confirming “on-the-
ground” findings used to activate R2P (Anghie, 2004; Forte, 2013; Al-Kassimi,
2017). A counter-hegemonic political commitment, therefore, is dedicated to
producing scholarly research and political action that is first and foremost con-
cerned with the justice and fairness of institutions, processes, and practices in the
international arena, and with a purpose of eliminating and exposing hegemonic
policies seeking to keep an Arab philosophical theology voiceless and powerless
(Bedjaoui, 1985; Al-Jabri, 1994; Abou El Fadl, 2014).
Another important commitment of TWAIL linked to its counter-hegemonic
principle is concerned in resisting and contesting Latin-Europe’s hegemony over
time (i.e., temporal positionality) which a priori perceives the progression of
history as being directed, structured, and based on a linear temporality based on
knowledge coordinates situated in, and progressing towards, Latin-European
time-zones. I argue that among all political commitments informing TWAIL as
an intellectual and political movement that being anachronic when reading-to-
deconstruct legal-history is perhaps the most important commitment to the
whole project upholding TWAIL as a deconstructive, but also reconstructive,
approach to international law. The reason is quite simple; positivist jurists and
mainstream legal contextualist have adhered to the temporal idea that the past
has no bearing on the present and that the past is not an important causal factor in
explaining current injustices (Orford, 2012, 2013; Koskenniemi, 2012, 2013).
This split in time limits scholarship seeking to highlight a continuum in inter-
national law (re)formulating legal doctrines that sanction sovereign-willed prac-
tices of domination and exploitation whether during the Age of Discovery
including the Reconquista and Inquisition, or more recently, the war on Arab-
Muslims informing a “War on Terror” and an “Islamist Winter” in the 21
st
century. While positivist practitioners perceive time as a linear progression of
disconnected moments with the present being the most progressive moment, an
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anachronic reading of history perceives time as an accumulation of moments
and that the present condition of Arab inhabitants of the Mashreq and Maghreb is
contingent on past practices adjudicated and continuously reaffirmed by secular
legal doctrines willed by sovereign power.
Johannes Fabian (1983) describes the “denial of coevalness” or denial of
anachronism within ratiocinated Latin-European philosophical theology as the
“persistent and systematic tendency to place the referent of anthropology in
a Time other than the present of the producer of anthropological discourse”
(as cited in Helliwell and Hindess, 2013:71; Agathangelou and Killian,
2016). Thus, in Latin-European anthropological accounts of non-Western
societies, a temporal difference is bounded to a violent dynamic classifying
differentculturesas “unsociable”. Consequently, the contemporary Arab as
Saracen is relegated as lacking dynamism to “progress in time” because they
are imagined as embodying cultural mores temporally degenerative thus
transmuted into our primitive past ancestor which is an essentialist and
deterministic practice par excellence central to the formulation of ratiocinated
Enlightened philosophies and jurisprudent scholastics (Helliwell and Hin-
dess, 2013:71). The deniability of coevalness inflictedonthe ThirdWorld
persists to this day and can be located in the popular system of categoriza-
tion describing an Arab mode of Being as apriori antithetical and antag-
onistic to the Latin-European liberal-secular telos maintained by jus gentium
(Blanco and Delgado, 2019).
Essentialist categories such as “premodern”
23
or “traditional” still prevail in
rationalist-positivist legal taxonomy. The Arab subject being transmuted into the
distant past is an anthropological condition that has infused naturalist and positivist
legal history in that it developed a “firm belief in natural evolutionary time. It
promoted a scheme in terms of which not only past cultures, but all living societies
were irrevocably placed on a temporal slope, a stream of Time – some upstream,
others downstream” (Helliwell and Hindess, 2013:72). Moreover, this inherent
belief in Latin-Europe possessing exceptional timeless properties is precisely made
possible by an imaginative process which develops a perception that there is an
unbridgeable break between the past and the present, whereby the non-Western
subject is seen as inhabiting a time that we should not inhabit, that we should have
moved on from, and that we should leave behind (Jones, 2003; Helliwell and
Hindess, 2013).
The results of perceiving peoples as being temporally backward – therefore
lacking civil-legal personality – can be deduced from Constantin Fasolt who
suggests that
No state could be sovereign if its inhabitants lacked the ability to change a
course of action adopted in the past … no citizen could be a full member of
the community so long as she was tied to ancestral traditions.
(Fasolt, 2004:7, emphases added)
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Arab subjects imagined as destined to remain stagnant in the past are perceived
as bodies lacking not only “cultural dynamism”, but more importantly, denied
sovereignty, therefore, situated “outside” jus gentium as irrational bodies ruled by
the past, whilst peoples imagined as coeval are perceived as individualized
rational free agents naturally attaining the telos of history. Therefore, from a
Kantian perspective, we can deduce that those who exist in the “present” are
seen as agents of knowledge or knowing subjects with whom we cooperate
and consult, whilst peoples who exist in the “past” are perceived as objects
which are recipients of knowledge because they lack Western modernity’s main
protestant Liberal-Capitalist ethic of individualism (Weber, 1958; Al-Jabri, 1994;
Helliwell and Hindess, 2013:76; Abou El Fadl, 2014).
This deterministic and historicist claim stipulating that Arab-Muslim societies
are devoid of civilizational ideas and experiences constructing valuable social
governing structures is fundamental in revealing the importance of TWAIL’s
methodology emphasizing the importance of an anachronic reading of legal-
history to deconstruct international law. In Foucault’s celebrated work
entitled The Order of Things: An Archaeology of the Human Sciences he men-
tions the “categories of man” (Foucault, 1970; Helliwell and Hindess,
2013). These categories were a 19
th
-century deliberation by modern Eur-
opean rationalist thinkers mapping out what constitutes a rational man capable of
reason informing the “modern episteme” (Foucault, 1970). He contends that
according to Enlightenment philosophy there are individualistic (present) and
non-individualistic (past) peoples with the former category including political
subjects located in Western liberal spaces possessing self-knowledge enabling them
to know individuals lagging in the past and therefore know what is best for them,
while the latter category are apolitical objects deficient of self-knowledge because
they lack the imaginative capability and rationality to know others thereby always
requiring direction (Helliwell and Hindess, 2013; Abou El Fadl, 2014).
Foucault was highlighting a tradition that has its roots amongst Enlightenment
thinkers who influenced positivist jurisprudence such as Mills, Comte, Durkheim,
Le Bon and Maine who believed that the European man – from a positivist logic –
held that the absence of individuality is an apriori condition that is situated in non-
European races who hold on to past traditions thereby making them objects of
international law with no legal personality – therefore “outside” the realm of jus
gentium (Helliwell and Hindess, 2013; Abou El Fadl, 2014). An anachronic legal-
historical reading of international law stresses a non-linear understanding of time
and history by emphasizing the relationship between the past, present, and future.
In other words, reading from an anachronic lens commits to the maxim “Time
does not pass … it accumulates” (Baucom, 2005:34). Only by being anachronic is
it possible to uncover the chaotic, anarchical, violent, deadly, and domineering
continuum in past and present legal doctrines situated in jus gentium adjudicated
to maintain and police the supposed apriori unbridgeable “cultural gap”
between the sovereign Latin-European subject as universal, and the Arab
object denied sovereignty as particular.
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The past two decades have noticed a renewed interest in approaching
“international legal history” anachronically because of the disbelief in teleological
narratives such as modernity, progress, and development not “liberating”
societies at home or abroad.
24
According to Koskenniemi (2013:216), the dis-
belief in Latin-European narratives of progress and modernity that inform legal
institutions in the 20
th
and 21
st
century is a disappointment that is reflected in the
loss of legitimacy of “inherited narratives” characterizing the “liberal spirit” of jus
gentium (Koskenniemi, 2015; Cunha and Afonso, 2017). The question of teleology
in history figures in the evolution of jus gentium from a naturalist to a positivist
school of jurisprudence informed by Renaissance and Enlightenment ideals that
inspired the objective of history as being Latin-European modernity. The ideals of
the Renaissance and Enlightenment are acknowledged as having influenced the
formative formulations of legal doctrines informing international law and human
rights as legal regimes thereby equipping jus gentium with a “sense of historical
legitimacy and empowerment to produce a self-image” (Cunha and Afonso,
2017:203) demonstrating that “International Law’s intrinsic virtue seems
inextricable from its teleological character” (Koskenniemi, 2015:213).
This (a)historical Latin-European teleological register continues to present
challenges for an anachronic reading interpreting canonical publications
informing the discipline of International Law, including reified events (i.e.,
Valladolid debate, Treaty of Westphalia, Revolutions of 1848, WWI and
WWII) and juridical personalities (i.e., Vitoria, Austin, Lorimer, Westlake, and
Wheaton) being confronted with methodologies from a range of philosophical,
cultural, and anthropological influences (Koskenniemi, 2015; Cunha and
Afonso, 2017). This challenge is based on critical legal jurists accentuating that
legal jurisprudence in the 19
th
century, for instance, demonstrates that “peoples
of the international realm occupy different categories in evolutionary civilizational
scales amidst teleologies of progress and backed by historicism’sstage where triumphant
versions of the discipline are performed” (Koskenniemi, 2002; Cunha and Afonso,
2017:198, emphases added). With historicism influencing generations of legal his-
torians by claiming to produce rationalist scientific understandings concerning the
“complexities surrounding historical register, time and methodology” (Kennedy,
1999; Cunha and Afonso, 2017:198), it is no wonder that non-mainstream legal-
historians have emphasized the danger of distinguishing law and history as two
separate disciplines by endorsing the relevance of the past, in critiquing the violent
formation and continuing terrorizing practices accenting jus gentium.
Anne Orford
25
defends the commitment of critical legal historians being ana-
chronic to “grasp legal meaning” by accessing a “broader historical archive”,in
contrast to mainstream legal contextualist historians, by stressing that “interna-
tional law is inherently genealogical, depending as it does upon the transmission
of concepts, languages and norms across time and space.
26
The past, far from
being gone, is constantly being retrieved as a source of rationalization of present
obligation” (2013:175). TWAIL-ers committed to deconstructing jus gentium by
being anachronic legal-historians, contribute in critiquing the role played by
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history in legal theory by adopting a hermeneutics of suspicion that is parti-
cularly concerned with interpreting the historical register concerned with the
“placement of imperial and colonial relations at the heart of legal norms and
institutions” (Cunha and Afonso, 2017:199). For instance, the standpoint of
TWAILs committed stance in being anachronic legal historiographers prior-
itizes engaging the origins of a given process, that is, jus gentium as a “uni-
versalized” legal regime containing legal doctrines that are (re)formulated to
maintain a mythical cultural gap between Arabia and Latin-Europe thereby
(re)actualizing the ahistorical teleology claiming Latin-European philosophical
theology as the exclusive “world-view” leading to political subjecthood.
To tackle this reductionist belief, Anne Orford suggests that the
task of international lawyers is to think about how concepts move across
time and space. The past … may be a source of present obligations. Simi-
larly, legal concepts and practices that were developed in the age of formal
empire may continue to shape international law in the post-colonial era.
(2012:16, emphases added)
The telos of history being maintained and guarded by an international legal
regime that valorizes Latin-European cultural mores seeking to transform non-
conforming Arab bodies through violence has resumed more explicitly since 9/
11, and more recently after the “Islamist Winter” in 2011. The importance in
aligning with an approach and principles expressed by TWAIL is especially
salient when considering that sovereign figures who are members of jus gentium
(re)formulated legal doctrines in the wake of 9/11 – discussed in Chapter 2 as
the Bush Doctrine or pre-emptive defence strategy (PEDS) – and the Arab
uprising in 2011 – discussed in Chapter 4 as the Obama Doctrine and the
Bethlehem Principles – by authorizing redemptive terror measures and opera-
tions all in the name of aiding Arabs to transition into a non-degenerative
temporal present. According to a neo-Orientalist discourse claiming that the
Arab uprisings would inevitably metamorphosize into an “Islamist Winter”, the
Arab uprisings did not remain a Spring but rather became a “fundamentalist
winter” because Arabs were identified a priori as embodying a primitive culture
denying them coevalness with Latin-Europe thus inherently “rationally”
incapable of attaining the telos of history. Okafor (2005:190) claims that the
humanitarian agitation of former colonizers in the wake of 9/11 equating
Arabia with terrorism demands a suspicious stance by “carefully unpacking and
resisting the sophisticated and complex process of denial and myth-making that
have enabled this deceptive posture of innocence to be maintained”.
Therefore, as a TWAIL-er, the research methodology contouring the chapters of
this monograph is committed to deconstructing the history of (naturalist and posi-
tivist) legal-history using an approach that conceives time cumulatively rather than a
linear manner thus when we study the present, we understand it is a product of the
past. Committing to being anachronic reveals how jus gentium – dominated by
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positivist scholastics – perceives non-European bodies as objects of sover-
eignty, denied subjectivity, and inhabiting “zones of silence” devoid of civil
knowledge systems. Also, this exacerbates European schizophrenia by dis-
tinguishing the “East” as always requiring “external articulations” from the
“West” to “integrate” and “make sense” of their historical progression
(Slater, 1995). TWAIL’s anachronic stance accentuates the idea that Latin-
European modernity is not simply “Self-Made” but “Other-Made”,and any
other essentialist articulation forces critical legal scholars to continue being
suspicious of the tendency of a positivist international law emphasizing a
present that perceives Arabs as abject-Other figuring a necessary threatening
body for Latin-European ontological security.
Finally, in relation to TWAILs anti-hierarchical commitment, TWAIL-ers con-
tend that a certain degree of a priori or universality is inevitable, and even
desirable; however, TWAIL scholarship – being counter-hegemonic and anachronic
– resists, contests, and is suspicious of attempts to confer universality on norms
and practices that are based on local historical conditions endogenous to Latin-
European temporal-spatial evolution. TWAIL does not adhere to the idea that
free-market, private property, or democracy are superior to, or automatically
trump other human values, but rather emphasizes that a
distillation of universal values may be possible in certain cases, but how
that process is conducted makes all the difference. Otherwise, powerful
economic and military interests are able to force their views on the rest of
the world and freeze them as eternal, inflexible truths.
(Mutua, 2000:37–38)
As stated bluntly by Mutua (2000:37), it is particularly concerning when uni-
versal norms and creeds become a priori especially when such norms are “given
the sanction of international law, and therefore become a requirement for non-
European societies” to become coeval with, therefore a member of, jus gentium.
TWAIL scholars adhering to a hermeneutics of suspicion and a naturalized
epistemological inquiry are aware that mainstream international law is unam-
biguous about its claim in being universal – its founders have unambiguously
asserted its “European and Christian origins” (Mutua, 2000:33). Similarly,
Koskenniemi (2011:152) declares that “the histories of jus gentium, natural law,
and the law of nations … are situated in Europe”. As a matter of legal-history,
the “father” of international law – Hugo Grotius – traced the historical legal
history of jus gentium to Francisco de Vitoria, a Roman Catholic philosopher,
theologian, and jurist in the 16
th
century known for being one of the founders
of the Salamanca scholastic school of jurisprudence developing naturalist
jurisprudence.
Mohammed Bedjaoui, an Arab jurist, highlights the universality or hierarchy of
liberal-secular jus gentium by stating that naturalist and positivist jurisprudent
schools
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consisted of a set of rules, with a geographical bias (it was a European law), a
religious-ethical aspiration (it was a Christian law), an economic motivation
(it was a mercantilist law), and political aims (it was an imperialist law).
(Bedjaoui, 1985:153)
27
While there are several ratiocinated juridical concepts that expose the hierarchical
nature of international law which is the subject of Chapter 1, sovereignty as a
liberal-secular juridical concept is by far the most important concept revealing
such essentialist tropes especially when we remember that jus gentium developed
through the encounter between a Latin-European mode of Being declared
sovereign, and a non-European mode of Being denied sovereignty. The nat-
uralist and positivist juridical concept of sovereignty was key in justifying,
managing, and legitimatizing subjugating inhabitants of Arabia embodying Arab
civilizational life-world experiences.
With statehood being territorially willed and recognized by a sovereign figure
who is the sole actor who possesses such will-to-power, the legal doctrine known
as “sovereign recognition” was the difference between freedom and the con-
quest of a supposed inferior people (Mutua 2000; Anghie, 2004; Gathii, 2011).
According to Mutua (2000:33), since non-European spaces were denied
sovereignty according to a “universal international law”, the colonialization of
independent, non-European lands by Europeans was therefore justified,
whether it was through military conquest, fraud, or intimidation. Since
colonization was part of the manifest destiny of Europeans and ‘good’ for
non-Europeans … any method deployed in its pursuit was morally and leg-
ally just. Brutal force, including the most barbaric actions imaginable, was
applied by Europeans in the furtherance of colonialism.
Since international law has been driven by a complex emphasizing a “cultural
dynamic of difference” transforming cultural differences into legal differences,
dominant jurisprudent schools characterizing jus gentium – naturalism and posi-
tivism – were and continue to adjudicate legal doctrines endowing sovereign
figures the duty to civilize, transform, and control the non-European body.
Therefore, TWAIL-ers anti-hierarchical commitment assumes the “moral
equivalency of cultures” and rejects strategies of “othering” cultures dissimilar
to Europe or the “creation of dumb copies of the original” (Mutua, 2000:36).
Also, they recant the “universalization” of cultures under the guise of promot-
ing modernity, humanitarianism, development, peace, and global order
(Mutua, 2000). Instead, a TWAIL approach demands a dialogical manoeuvre
across cultures to establish the “content of universally acceptable norms”
(Mutua, 2000:36). TWAIL is committed to international law and deems it
necessary and important; however, it sees the current mainstream school of
jurisprudence as illegitimate because not only does it reify and privilege Latin-
European cultural experiences, but requires the fabrication of a reductionist
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imaginary constructing Arab epistemology as embodying “unsociable” and
“unaccultured” bodies for Western epistemological coherence. TWAIL-ers believe
that such “epistemic violence” informing a hierarchical “race war” discourse
situated in jus gentium ultimately fails because it denigrates rather than affirms the
full richness of a multicultural world and “universal” law. Jus gentium claiming
that a natural distinction exists between law and morality inevitably fails at deli-
vering the “promise of universality” since the development of legal doctrines
moralizing extrajudicial measures when translated on the Arab body, remind us
that the privileges and inviolability of jus gentium is contingent on temporal
positionality (Bedjaoui, 1985; Beckett, 2003; Gathii, 2011; Eslava and Pahuja,
2012; Orford, 2012).
TWAIL is a historically “aware methodology” that challenges the simplistic
post-colonial scholarly vision of an “innocent” Global South and “supremacist”
Global North (Mutua, 2000; Sunter, 2007; Gathii, 2011; Eslava and Pahuja, 2012;
Al-Kassimi, 2018). Instead, scholars adhering to TWAIL have produced a vibrant
“chorus of voices”
28
located in the Global North and Global South committed to
ongoing debates concerned with critiquing the (im)morality of an international
law dominated by positivist jurisprudence seeking to continuously transform cul-
tural differences into legal differences thus revitalizing injustices managed, main-
tained, and manipulated by legal formulations situated in jus gentium (Dirlik, 1994;
Mickelson, 1998; Mutua, 2000).
29
Mickelson (1998:360) highlights that Third
World perspectives to international law occupy “a historically constituted, alter-
native and oppositional stance” to the dominant positivist school of international
law, by including multiple “chorus of voices that blend, though not always har-
moniously, in attempting to make heard a common set of concerns”.Likewise,
Mutua (2000:31) describes TWAIL scholars as including a “broad dialectic of
opposition to international law” united in “their broad opposition to the unjust
global order” (Mutua, 2000:36). As a distinctive oppositional and dialectic way of
thinking of international law using a variety of interlocutors situated in the Occi-
dent and Orient, TWAIL-ers consider possibilities for egalitarian change in mul-
tiple issues relating to society, politics, identity, and economics with an underlying
commitment to justice by considering relations between and within the “East”
and the “West”.
In so doing, the methodology of TWAIL proceeds from the assumption that
it is not only impossible to isolate “modern forms of domination such as gov-
ernmentality, from the continuation of older modes of domination” (Gathii,
2011:26), but most importantly, it seeks to go beyond the limited remonstra-
tion asserting that the problématique with International Law is that it is primarily
“Eurocentric” since the simple solution to such non-transcendental ideological
assertion would be to include non-secular philosophical theology in Interna-
tional Law.
30
Rather, as the chapters informing this monograph will reveal, the
question characterizing the exclusionary characteristics of a positivist legal
regime identified as jus gentium should be: what are the worldly experiences of
being temporally included and what are the worldly experiences of being
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temporally excluded from a secular legal regime (i.e., jus gentium) reifying a
materialistic epistemology universalizing an immanent secular ontology?
As a political and intellectual movement, I argue that TWAIL provides an
acerbic critique of how the current international legal regime demonstrates
that the formative legal doctrines constituting jus gentium during the Age of
Discovery and Age of Reason continue to be adopted and/or (re)formulated
into legal doctrines that are reminiscent of doctrines adopted to adjudicate a
just war
31
(bellum justum) legalizing extrajudicial practices on the Arab-Muslim
body since the 11
th
century. The pre-emptive defence laws formulated after
9/11 by the Bush administration dubbed the “Bush Doctrine” or “Bush
Chaos Theory”, and the Bethlehem legal principles adopted during Obama’s
administration in 2012 and upheld during Trump’s administration, continue
to be doctrines reifying a “cultural dynamic of difference” founded on a ratiocentric
idea claiming that there exists an unbridgeable cultural gap between Arabia and the
Latin-Europe (as discussed in Chapter 2). The remedy to such a gap – according to
neo-Orientalist proponents – is situated in Arabs adopting the values maintained
by jus gentium – therefore Latin-European modernity – thereby silencing their life-
world experiences and civilizational values. This philosophical-theological hubris
or schism – as thoroughly discussed in the concluding remarks of this mono-
graph – has dominated the legal-historical processes of law-making in Latin-
Europe with the establishment of jus gentium in the 15
th
century secularizing
“civil” law by excessively rationalizing revealed Law (Guénon, 1924,1931; Beckett,
2003; Abou El Fadl, 2014).
While it is accurate to claim that the first academic conference of TWAIL took
place at Harvard Law School in March of 1997, Third World perspectives of
international law can be said to date back to the Bandung Afro-Asian solidarity
conference of 1955 which is remembered – through its communiqué – to have
pleaded former colonial powers and their local comprador collaborators to reconstruct
rather than abolish the international legal system by injecting the voice of reason,
morality, and spirituality into world affairs regardless of cultural and racial differences
(Mutua, 2000; Sunter, 2007; Al-Kassimi, 2018). Mutua (2000:31) declares how
the conference was the “birthplace of TWAIL” because it is “reactive in the sense
that it responds to international law as an imperial project” and also “proactive
because it seeks the internal transformation of conditions in the Third World”.It is
for this reason that TWAIL as a political and intellectual movement is fuelled by
strong anti-imperial, anti-hierarchical, and counter-hegemonic sentiments with scholars
aligning with TWAIL emphasizing their explicit reaction to historical processes of
colonization and decolonization influencing the making and development of jus
gentium as we currently observe it (Mutua, 2000; Anghie, 2004; Sunter, 2007;
Eslava and Pahuja, 2012; Al-Kassimi, 2018).
While many mainstream (positivist) scholars of international law perceive
international law as a channel for rights-protection and socio-economic devel-
opment, TWAIL-ers lament contemporary international law and its projected
legal doctrines as being an oppressive instrument of power rather than an
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ameliorative instrument of peace and justice by declaring that international law
is a “regime and discourse of domination and subordination” rather than
“resistance and liberation” (Mutua, 2000:31). Furthermore, as a political and
intellectual movement that seeks to go beyond the limited post-colonial argu-
ment claiming that the issue with international law is that it is Eurocentric,
TWAIL-ers emphasize that while international law guarantees sovereign
equality and self-determination to all peoples regardless of culture and race,
legal doctrines formulated in the 20
th
and 21
st
century continue to legalize
conquest by carrying forward a legacy of terror that is highly reminiscent of the
legal doctrines formulated during the formative phases of jus gentium legally
sanctioning a destructive civilizing mission because of “cultural differences”
(Anghie, 2004; Gathii, 2011). Antony Anghie argues in his authoritative
TWAIL text entitled Imperialism, Sovereignty and the Making of International Law
that doctrinal and institutional developments relating to international law
cannot be understood as “logical elaborations of a stable, philosophically con-
ceived sovereignty doctrine … [but rather] as being generated by problems
relating to colonial order” (Anghie, 2004:6).
That is to say, one cannot separate colonialism from the formation of jus gentium
since the enduring issues of “racial discrimination, economic exploitation, and
cultural subordination” (Gathii, 2011:31) are to be understood by (re)examining
the central relationship between jus gentium and the “dynamic of cultural differ-
ence”. Sovereignty as a rational concept denotes the endless process of separating
cultures by demarcating some as qualified discursive life and others as unqualified
pre-discursive dead-lives. This rational legal separation proceeds to bridge the
“cultural gap” by developing and formulating legal doctrines charged with tech-
nologies of racism and mechanisms of enmity that subjugate Arab life to the power
of death (necropower) by elevating their body to the exception thus banning them
from the juridical and social order (Agamben, 1998a; Mbembe, 2003; Anghie,
2004; Mutimer, 2007; Shetty, 2011; Ramina, 2018). The dynamic of cultural
difference between an Athenian and Mad-
ınian mode of Being continues to be
transformed into a legal benchmark generating some of the defining hier-
archical doctrinal problems of international law with Gathii tersely stating that
“the dynamic of difference preceded the public-private distinction” and “the
sovereign-non-sovereign distinction” (2011:31).
TWAIL seeks Transformation Rather than Abandonment of
International Law – Resisting and Reforming the a Priori
Cultural “Universalism” in Jus Gentium
TWAILs approach to international law is committed to deconstruct positivist
legal-history and its reified teleological narratives associated with a linear his-
toricist perspective of temporality distorting actual first-hand living cultural
experiences of Arabs. By adopting an anachronic reading of legal-history in
tandem with a hermeneutics of suspicion, TWAIL – as a virtual site where
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28 Introduction – Creative Chaos and TWAIL
scholars and activists from the South and the North converge voices – also
becomes defined as a political and intellectual movement that is committed to
resisting and reconstructing/reforming international law. As a political movement it
refuses to treat as sacred any “norm, process, or institution of either domestic or
international law. All factors that create, foster, legitimize, and maintain harmful
hierarchies and oppressions must be revisited and changed” (Mutua, 2000:38;
Gathii, 2011). The multiplicity of critical voices informing TWAIL do not a
priori pursue the abandonment of international law but rather seek to recon-
struct and “transform international law from being a language of oppression to
a language of emancipation – a body of rules and practices that reflect and
embody the struggles and aspirations of Third World peoples and which,
thereby, promotes truly global justice” (Anghie and Chimni, 2003:79).
By bringing to the forefront the immoral consequences ensuing from the
transformation of cultural differences into legal differences accompanying the
“universalization” of jus gentium, TWAIL has successfully consolidated and insti-
tutionalized a political avenue that argues for the engagement and improvement of
international law by going beyond the limiting spatial “Eurocentric” argument
emphasized in “post-colonial” scholarship (Mutua, 2000; Beckett, 2003; Attar,
2007; Gathii, 2011; Eslava and Pahuja, 2012:199). While dogmatic Marxists
would claim that a “world structured around international law cannot but be one
of imperialist violence” (Miéville, 2005:319), TWAIL scholars more generally
declare that international law can offer a space in which claims about justice and
morality can be voiced and heard (Anghie, 2004; Gathii, 2011; Eslava and Pahuja,
2012). Resistance and reconstruction form an emancipatory compound of deconstruc-
tion rather than destruction to overcome international law’s inclusive exclusion dis-
positif, while remaining committed to the idea that South-North relationships
based on an international normative regime founded on mutually agreed upon
structures reflecting moral and ethical norms is possible. The prioritized course of
action adhered to by TWAIL is to not remain within the reformist agenda, nor by
committing to the chauvinistic idea of completely resisting and imagining a world
without jus gentium, but rather insisting that a systematic engagement and com-
mitment to resisting the “negative aspects of international law must be accompanied
with continuous claims for reform” (Gathii, 2011; Eslava and Pahuja, 2012:209;
emphases added).
TWAIL scholar’s willingness to make international legal history a vital part of
their scholarship empowers them to accentuate the limits of a positivist jus gentium
and the areas in need of reform. Deconstructing secular juridical concepts provides
reasons to resist legal doctrines situated in jus gentium adhering to positivist scho-
lastics such as sovereignty, society, citizenship,or just war, since their application on the
Arab subject reaffirms that sovereignty is necropolitical.Put differently, suspiciously
reading the legal-history engineering jus gentium highlights the importance of
resisting liberal-secular modernity as a telos of history since it requires the fabrica-
tion of the Arab-Muslim as a “threshold body” (i.e., homo sacer, muselmänner) using
technologies of racism elevating them to a state of exception thus making their
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