Although international legal scholars have never captured or paid attention to the epistemology of the secret at work in international legal thought of practice, the idea of secret has not been totally absent from international legal thought. For instance, international legal scholars have occasionally mobilized the idea of the hermeneutics of suspicion to describe the way in which certain scholars dismiss opponents’ arguments to be ideologically or politically motivated wrong postures as opposed to scientifically valid positions. Likewise, a lot of scholarly works have been focused on the secretive and undisclosed practices which are supposedly at work in various international legal processes. This chapter reviews these contemporary engagements by international lawyers with the idea of secret in international law.

This notebook contains some of the ideas, ambitions, hopes, anxieties, interrogations, and fears that randomly or expectingly came to punctuate the writing of the previous chapters.

This chapter spells out the notion of the espistemology of the secret. It unpacks the two main components of the epistemology of the secret of international law: the necessary presence of hidden, unknown, invisible content in the texts, practices, actors, effects, representations, past, etc. of international law (what is called in this book the necessity of secret content) and the necessity for international lawyers to reveal such hidden, unknown, invisible content (what is called in this book the necessity of revelation). The chapter distinguishes the epistemology of the secret of international law from the hermeneutics of suspicion, the idea of an ideology of secretism and the idea of an economy of secrets.

This chapter draws the attention to systems of thought other than international law and that are similarly articulated around a postulation of the necessary presence of some content or substance deemed to be hidden in some way (what is called here the necessity of secret content) and/or the necessary performance of an act of revelation of some content or substance previously unknown (what is called here the necessity of revelation). The attention is drawn on the epistemologies of the secrets at work in Greek logocentric thought, in the Christian governance of the mind, in modern thought, in the idea of critique inherited from modern thought, in bourgeois literature, in Freudian psychoanalysis, in structuralist thought, and in poststructuralist thought.

This chapter exposes some concrete and contemporary manifestations of the epistemology of the secret of international law. It particularly sheds light on the way in which the postulation of a hidden, unknown, invisible content as well as the experience of the necessity to reveal such content play out in international legal thought and practice, for the sake of ordering what can be said, thought, perceived and actioned through international law. The chapter then illustrates how such two necessities come to enable a mass production of speech materials which, in turn, determines what can possibly be said, thought, perceived and actioned through international law.

This chapter draws on a year of fieldwork with housing activists in Berlin to examine law as a cultural archive of putatively long-defunct utopian visions, and at once as the key for resurrecting these visions in the present. In the German elections of September 2021 a referendum for expropriating hundreds of thousands of apartments owned by real-estate multinationals in the federal state of Berlin won by a resounding majority, to the surprise of both supporters and detractors. The inclusion of the referendum on the Berlin ballot represented the successful culmination of several years of intensive organizing and campaigning by a grassroots movement facing a largely uncooperative and antagonistic government led by the Social Democrats. The movement based its campaign on an article in the German constitution that grants federal as well as state governments the power to “socialize” private property on a massive scale. Included in the 1949 constitution with the support not only of the Social Democrats who now oppose it but also of many conservatives, the article reflects a bygone time when competing visions of how best to structure Germany’s economy had not yet reached a political resolution, when ideas about the supremacy of public over private interests held sway over broad constituencies, and when aspirations for the collective ownership of the means of production were central to working-class discourses. Notably for how these struggles panned out, this article has never been used in the history of the Federal Republic. The chapter examines how contemporary housing activists seek to reanimate such past futurities through their legal afterlives, locating in the law the potential for a radical change that in contrast with the largely ineffective impact of existing rent regulations and city ordinances would fundamentally transform the nature of the real-estate market from the ground up. The chapter argues that far from naively staking their hopes on law, these activists elaborate creative strategies for reckoning with the limits that an antagonistic political conjuncture as well as enduring hegemonic ideologies about the market place upon it.

The volume’s Introduction is divided into four parts. It begins by setting out the analytical framework animating this volume, namely “juristocratic reckoning," which builds on, yet critically modifies and reappropriates, Ran Hirschl’s (2004) notion of “juristocracy” in order to capture a broader process of transformation through which law and legal categories are invested with unusual weight and responsibility beyond their more conventional carrying capacity. Such over-freighting of law typically involves a “dialectics of reckoning,” through which law is first elevated during certain moments in time, which then give way to a second phase, a coming to terms with juristocracy’s failures marked by critique, skepticism, and eventual disenchantment. Within this larger dynamic, certain histories of juristocratic reckoning are imbued with what the Introduction describes as an “iconic indexicality,” in which their supposed historical significance itself enters into the process of juristocratic elevation and then unraveling. Against the backdrop of this conceptual exposition, the Introduction situates Reckoning with Law in Excess in the current conjuncture – an era of crisis and confrontation, characterized by growing debates, within academia and beyond, about the demise of the rule of law. Having located the overall analytical project within different historical, political, and academic contexts, the Introduction then traces the contours of juristocratic reckoning through the diverse and global range of case studies assembled in the volume, including some that are marked by an iconic indexicality and others that are not. It proposes three “taxonomies of reckoning,” which coalesce around concerns with “states of juristocracy,” “alter-legal reckonings,” as well as “juristocracies against the state,” attesting to the persisting centrality – if always contested, variable, and fragmented – of the state form. Last but not least, the Introduction examines the temporality of juristocracy, since viewing the case studies through their various temporalities reinforces the wider point that dialectics of reckoning must be understood through their empirical and historical heterogeneities rather than as exemplars of an abstracted sociolegal category. Revisiting the various case studies, the Introduction shows how the dialectics of juristocratic reckoning are associated with moments, momentums, and mobilizations in the living archives of law that often yield inconclusive or ambiguous results and remain open to multiple interpretations, directions, and futures.