1. Law’s outside

In Maurice Blanchot: The Thought from The Outside, Michel Foucault writes of law that it is ‘not the principle or inner rule of conduct. It is the outside that envelops conduct, thereby removing it from all interiority; it is the darkness beyond its borders; it is the void that surrounds it’.Footnote ² If law is itself the ‘outside which envelops conduct’, how would we speak of its ‘outside’? How would we speak, as Johns does, of a ‘non-law’ in terms of it standing ‘opposed to or outside the reach of legal norms’ (p. 1)? More pointedly, how could we find that non-legality, is ‘more than the flip side or remainder of international legal work’, but rather is ‘in its own right, a central structuring device of international legal thought and work’ (p. 11). In making these claims (and those that follow from them), it might appear that the book's critical purchase depends on its being able to distinguish law from non-law; to present an ‘inside’ and an ‘outside’ to law. In these comments, I will consider some difficulties inherent in such a task and argue that the book does not depend on there being a robust distinction between law and its outside, but rather that one of the book's key virtues is the way it plays, in a rigorous and critical fashion, with the distinction itself.

The first clue that the distinction may be difficult to grasp comes from the sensibly broad and tentative attempt to define law and legality. These are taken to denote the ‘normative practices of legal professionals’ (p. 12). International law, in turn, is ‘the projection of those normative practices on a global scale’ (p. 12). Put simply, ‘international law … is what legal professionals say and do in the course of a project of governing, or seeking to govern, globally’ (p. 12). As the practices and their effect encroaches beyond the traditionally legal, we find that legality itself becomes, in Johns's terms ‘a movable feast’ (p. 12). If that is the case, then what should we make of the book's opening line, where we find that not only do international lawyers ‘make law as they go about their daily work, but they also make non-law’ (p. 1). Unless ‘non-law’ is what international lawyers produce when they are not either saying or doing, how could we distinguish those sayings and doings which make law, from those which make non-law? Only if ‘non-law’ is not simply opposed to but also an integral part of ‘law’ can this apparent contradiction be resolved.

This integral quality can be glimpsed through the examples forming the case studies in the book. The first example is the infamous torture memos prepared for the Bush Administration between 2002 and 2005. This is presented as an account of the role law plays in constructing its opposite: ‘illegality.’ Looking behind the routine condemnations of the torture and its justification by supposedly irresponsibly pliant and partisan legal practitioners, Johns demonstrates (among much else) how the memos themselves (which sought to prescribe as ‘legal’ conduct otherwise thought to be at the extreme end of illegality) owed much to normal practices of lawyers. In particular, the kind of routine ‘illegality’ practised by lawyers in giving advice in the face of an uncertain boundary between legality and illegality, where the language of risk is adopted and arguments presented as more or less viable.Footnote ³ Here international lawyers are involved in what is, professionally speaking, a mundane task of ‘envelope-pushing’ (p. 62). There is a fine but irreducible division still at play here, where as ‘the nether side of envelope-pushing … international illegality is international lawfulness but for the barest and yet most significant of margins’ (p. 67). Yet the placement of this margin is always in flux: international law's dependence on custom as one of its sources and the broader forms of its ‘customary dimension’ evoked by Johns, mean that ‘characterisations of illegality may be preliminary to a taking effect or remaking of legality’ (p. 39).

This theme of an unsettled relationship between law and its outside is also evident in the other examples. The second is the supposed ‘extra-legality’ of Guantanamo Bay. Here Johns explores a terrain where the norm has not so much been banished but instead where ‘elaborate regulatory efforts by a range of legal authorities’ show ‘law and legal proceduralism to be operating in excess’ and in a manner ‘co-extensive with normalities of international legal practice’ (p. 70). The third example is the supposedly autonomous moment of decision faced by corporations choosing by contract the law which will govern a ‘deal’. This example evokes an ‘unwieldy normative thicket’ within which this apparently autonomous choice is made (p. 127). In so doing, we find how difficult it is to ‘pit law against non-legal (economic or political) power, or of pitting freely (privately) chosen outcomes against legislatively (publicly) mandated outcomes’ (p. 144). This difficulty ‘arises from the mutually constitutive nature or the inseparability of legality and non-legality, private choice and public interest, as played out in the web of a deal’ (p. 144).

The fourth example is the supposedly ‘supra-legal’ quality of the science of climate change (as rendered by the Intergovernmental Panel on Climate Change (IPCC)) and the reduction of international legal work to the mundane putting into action of standards sent to it from ‘beyond’ (p. 168).Footnote ⁴ In a chapter which carefully pulls at the threads of this distinction in a number of ways, one observation made is that ‘the IPCC could be regarded as much a product of international law as it is a creature of global politics and scientific method’ (p. 162). This and related observations are not designed to ‘suggest a … unity which gets unnaturally disrupted by reference to science-law or politics-law distinctions’ but rather to explore the complex way international law itself makes and works with, within, and across those distinctions (p. 164). The fifth and final example is the ‘infra-legal’ character of the victims of natural disasters, the examination of which Johns uses to bring to light that which appears to operate not only in the background to law, but also within it. Here we find the ‘“legality” of infra-legality indicat[ing] the normative or imperative force of these background conditions and the role of legal vocabularies and agents in generating them’ (p. 187). Once more, the task is not to show the robustness of the distinction between law and non-law, but to problematize that distinction in a way which makes visible aspects of legal work are thought to be (but are not) outside it.

The concern to make visible that which has been hidden or overlooked provides another clue to the elusiveness of the distinction between law and non-law in this book. In it, ‘non-law’ is presented as a category of perceived experience rather than a definite and existent thing. The case studies, we are told, reveal that ‘international lawyers are routinely involved in projecting and shaping conditions that they seem to experience more as political, environmental, economic, or innate than legal’ (p. 11 – my emphasis). These international lawyers ‘then tend to approach these conditions as though they were exogenous to their work’ (p. 11 – my emphasis). The book's aim would be then to problematize those perceptions, and to find law, lawyers, and legal work operating in unlikely fields and in unlikely ways (p. 29). More precisely, these ‘forays into non-legality … are hardly ventures into bounded fields of negation or emptiness’ and at least part of the point of focusing on instances of the making and working of ‘non-law’ is to ‘render other legal norms and practices more visible or significant’ (p. 11 – emphasis in original). And so, perhaps the book is not so much concerned with non-legality as a category, or even as an experience, but, as its subtitle suggests, it is really concerned with law's ‘unruliness’, on its evanescence and its diffusion.

This, again, would find resonances in Foucault's reflections on law's exteriority. For Foucault, the law is not ‘present in a text’; readable ‘between the lines of a book’ or contained in a ‘register that could be consulted’.Footnote ⁵ Accordingly, it does not have ‘the solidity of external things’.Footnote ⁶ For Foucault, the ‘law is the shadow toward which every gesture necessarily advances; it is itself the shadow of the advancing gesture.’Footnote ⁷ In its invisibility, mystery, and evanescence lies law's power – it is the source of the ‘force and prestige’ by which it ‘command[s] respect’.Footnote ⁸ But this evanescence cannot be the whole story. At some point law must be brought to bear on specific situations.Footnote ⁹ Even accepting the impossibility of containing law, there must be, in the moment of its application to specific situations, something outside it. There must be first, something other to it that it can act upon (perhaps conduct, subjects, society, life) and second, some force outside of itself that can supply it with content and enforce it in specific situations. The first evokes concerns with the relationship between law and society, and the rich but understated implications of Johns's book in that field are noted by Professor Valverde in her contribution to this collection. The second is about the relationship between law, sovereignty, and responsibility. And similarly one finds a rich and understated set of implications for thinking about that relationship, to which in closing I will now briefly refer.

Non-Legality in International Law both suggests and enacts a way to think about responsibility for the effects of law and legal practice which does not give sole (or even primary) focus to overt acts of legislation, decision, and enforcement. For Johns the practices of law and non-law-making are sufficiently diffuse that law-making subjectivities include such unlikely figures as the living victims of torture and the dead victims of natural disasters (pp. 60–66; 210–14). Nor does responsibility, for Johns, depend on the existence of a self-conscious, self-asserting subject-actor. In doing so, the book echoes and yet marks a point of departure from another key thinker of law's evanescence, Jacques Derrida. For Derrida, law's evanescence flows from law's ‘undissociable’ relationship to an unconditional justice.Footnote ¹⁰ But that same unconditional justice demands of law that it be ‘put to work … by force “enforced”’.Footnote ¹¹ For this it seems we need some kind of sovereign power able ‘to decide, to be decisive, to prevail, to have reason over or to win out over … and to give the force of law’.Footnote ¹² Moreover, for Derrida, the allocation of responsibility depends on a certain sovereignty.Footnote ¹³ He writes that sovereignty's deconstruction must occur while ‘recognising that all the fundamental axiomatics of responsibility or decision … are grounded on the sovereignty of the subject, that is, the intentional auto-determination of the conscious self’.Footnote ¹⁴

By contrast, Non-Legality in International Law suggests that questions of responsibility may be usefully pursued without any link to a sovereign lawmaker or even a singular subject – a responsibility which exists within the thicket of actors, networks, processes, practices, and patterns constituting and constituted by international legal work. It suggests that the insight that ‘international law is not an instrument readily subordinated to rational will in the singular’ (p. 29) is not a prescription for passivity, nor for allocating responsibility elsewhere (to politics, economics, science, or wherever). Rather, it prompts a call to action which takes the form of close attention to what we, as international lawyers, do and the effect it has, both as individual actors and as a diffuse collective of sorts. It requires us to recognize that at least some of the ‘bad things’ we tend to ‘equate … with a deficit of international law or its isolated inoperancy’ might actually, at least in part, be the ‘outcomes of international legal work’ (pp. 220–21). This mode of thinking suggests that the diffusion of what can be seen as international legal work can be matched by an ability in its practitioners to call their practices into question and to consider their effects not as the taken-for-granted operation of professional life, but as involving the ‘projection of controversial, varied and impactive visions of the personal and the political’ (p. 218).

Precisely how this is to be done, or what effect this kind of thinking might have if adopted by scholars or practitioners of international law is not clear. Certainly the book asks for a greater critical reflectiveness on the part of participants in international legal life, to recognize ‘what may be at stake in its variable deployment’ (p. 222). For example, if lawyers structuring corporate decisions are not simply facilitating market forces but actually allocating ‘resources and authority’, greater reflection is called for by them on the way they participate in the complex and mutually constitutive relationship between public law and private (corporate) interest (p. 146). But there remains the question of what should be done; and in deciding such, on what basis. While the book does not profess to be programmatic, it does seek to expand, or invite prospective expansion of ‘the contemporary international legal repertoire of ideas and actions’ (p. 217 – my emphasis). One example given is of the way people participating in the internment and prosecution of suspects at Guantanamo Bay have, despite what appear to be strict executive directives, not ‘all performed alike’: military employees have clashed with superiors, others have leaked information to assist defendants and so on (p. 103). Quoting detainee defence lawyer Clive Stafford Smith, Johns suggests that even in such settings ‘[t]here is always something you can do’ (p. 104).

This is perhaps where the critical possibilities opened up by the book, which successfully track a very rich and diverse terrain of international legal life, reach a certain, and regrettably, unexplored, limit. The criticism here is not that the book should seek to answer ‘that interminable question: what is to be done?’ (p. 222), but that if each actor's role is to attract a certain responsibility, perhaps the book should attempt to provide some (possibly provisional) grounds for how such an actor might approach that question in the different contexts examined. When the personnel at Guantanamo act contrarily, are (or should) they (be) doing so on the basis of their own personal views, or on ethical or professional values, or on a certain vision of the possibilities of international life which could trump previously accepted views or edicts of the powerful? Given the careful critique Johns makes of the way these types of grounds were invoked in response to the torture memos, perhaps it is none of these.Footnote ¹⁵

Of course, it is not incumbent on the critic to elaborate an alternative to the subject of her criticism. And indeed the author does offer the book as a ‘turning of the sods’ (p. 224) rather than an articulation of solutions. It suggests a form of experimentation ‘without necessary recourse to some higher or lower ground of assurance or initiative’ (p. 224). All of that is salutary and in keeping with the rigour of the critique, but the absence of possible forms of assurance, in combination with the expansion of the possible loci of responsibility through the diffusion of actors and actions which the author shows produce (effects through) international law, does make it hard to get a grip on how responsibility might come to be determined or even whether it is determinable. Perhaps it is unfair to ask the author of such a rich and groundbreaking work to have done more, and the invitation is certainly there for others to take things forward, but one is left with the feeling that Professor Johns would have some very interesting things to say about these questions.

In closing, what is perhaps most powerful about Non-Legality in International Law is that its problematization of the distinction between law and its outside, its exposure of law's evanescence, and its concern with responsibility in situated instances is achieved not at some high level of abstraction but in descriptive accounts of the day-to-day life of international legal practice. The force of its critique does not depend on the author nor those she might seek to inspire adopting an impossible point of detachment from the daily life of international legal practice within which they find themselves. Unusually, the messiness of real life poses no danger to a theoretical position which is sophisticated yet nimble enough to accommodate it. The case studies explored are not just evocations of the need to critically engage but are also themselves ‘tactical engagements’ with international legal practice and thought; engagements undertaken ‘in a posture of immersion and complicity’ where attention may be drawn to problems created by the work of international law and lawyers ‘without laying claim to a vantage point of rectitude or taintlessness’ (p. 28). In this, the book is an exemplar of what it might be possible to think in international law and invites further reflection on what it might be possible to do.