In his Philosophical Investigations, Ludwig Wittgenstein declared: ‘We must do away with all explanation, and description alone must take its place.’ Michel Foucault in turn repeatedly referred to his method of study as description, arguing that the role of philosophy is not to reveal what is hidden, but rather to make us see what is seen. This essay suggests why the turn to description as a mode of legal writing might be a productive move at this time.
1 A. Orford, International Authority and the Responsibility to Protect (2011).
2 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (2001).
3 UN Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005, (2005), para. 135.
4 2005 World Summit Outcome, UN Doc. A/RES/60/1, (2005), paras. 138–139.
5 Secretary-General Defends, Clarifies ‘Responsibility to Protect’ at Berlin Event on ‘Responsibility to Protect: International Cooperation for a Changed World’, UN Press Release SG/SM/11701 (2008).
7 UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/63/677 (2009), at 7.
8 UN Secretary-General, Early Warning, Assessment and the Responsibility to Protect: Report of the Secretary-General, UN Doc. A/64/864 (2010), at 4, 8.
9 UN Doc. S/RES/1973 (2011).
10 See, further, Orford, A., ‘From Promise to Practice? The Legal Significance of the Responsibility to Protect Concept’, (2011) 3 Global Responsibility to Protect 400; A. Orford, ‘What Kind of Law Is This?’, London Review of Books Blog, 29 March 2011.
11 Chandler, D., ‘Unravelling the Paradox of “The Responsibility to Protect”’, (2009) 20 Irish Studies in International Affairs 27 (‘the R2P is conceptually and institutionally a reflection of the evasion of Western responsibility for others’); Wheeler, N. J. and Egerton, F., ‘The Responsibility to Protect: “Precious Commitment” or a Promise Unfulfilled?’, (2009) 1 Global Responsibility to Protect 114.
12 See, as representative examples of legal scholarship, Brunée, J. and Toope, S. J., ‘The Responsibility to Protect and the Use of Force: Building Legality?’, (2010) 2 Global Responsibility to Protect 191, at 192; Charlesworth, H., ‘Feminist Reflections on the Responsibility to Protect Concept’, (2010) 2 Global Responsibility to Protect 232, at 235, 248; Strauss, E., ‘A Bird in the Hand Is Worth Two in the Bush – On the Assumed Legal Nature of the Responsibility to Protect’, (2009) 1 Global Responsibility to Protect 291, at 296–9; !!Kapur, A., ‘“Humanity as the A and Ω of Sovereignty”: Four Replies to Anne Peters’, (2009) 20 EJIL 560, at 562; Focarelli, C., ‘The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’, (2008) 13 JCSL 191, at 193; Stahn, C., ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’, (2007) 101 AJIL 99; Molier, G., ‘Humanitarian Intervention and the Responsibility to Protect after 9/11’, (2006) 53 NILR 37. For the view that the responsibility to protect concept does impose a new obligation upon the Security Council to intervene in situations of mass atrocity, see Peters, A., ‘Humanity as the A and Ω of Sovereignty’, (2009) 20 EJIL 513, at 540, 544.
14 Statement by Professor Noam Chomsky to the United Nations General Assembly Thematic Dialogue on the Responsibility to Protect, United Nations, New York, 23 July 2009, available at www0.un.org/ga/president/63/interactive/protect/noam.pdf.
16 M. Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978–1979 (translated by G. Burchell) (2008), 2.
17 H. L. A. Hart, The Concept of Law (1961), 28.
18 For a discussion of the relevance of Hart's distinction between laws of a public or official nature that confer powers and ‘those that impose duties’ to the responsibility to protect concept, see further Orford, supra note 1, at 22–7.
19 United Nations, United Nations Peace Operations 2009: Year in Review (2010), 3, 5.
20 UNHCR, 2008 Global Trends: Refugees, Asylum-Seekers, Returnees, Internally Displaced and Stateless Persons (2009), available at www.unhcr.org/4a375c426.html.
21 On the significance of international administration as a political form, see further Orford, A., ‘International Territorial Administration and the Management of Decolonization’, (2010) 59 ICLQ 227. For the related argument that, in the domestic context, critical attention has tended to focus on the ‘dramatic or even theatrical contexts surrounding police work’ rather than ‘the silent grinding of administrative mills (as in cataloguing, normalizing, data collection and classifying)’, see Mladek, K., ‘Introduction’, in Mladek, K. (ed.), Police Forces: A Cultural History of an Institution (2010), 1, at 5.
22 P. Broué, The German Revolution 1917–1923 (2006), 733.
23 UN Secretary-General, Introduction to the Annual Report of the Secretary-General on the Work of the Organization, UN Doc. A/4800/Add.1 (1961), at 1.
24 Hammarskjöld, D., ‘The Uses of Private Diplomacy’, in Foote, W. (ed.), The Servant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld (1962), 170, at 173.
25 Foucault, supra note 16, at 6.
26 Ibid., at 78.
27 Ibid., at 3.
29 C. J. Nederman, Lineages of European Political Thought: Explorations along the Medieval/Modern Divide from John of Salisbury to Hegel (2009), 20.
30 Foucault, M., ‘La philosophie analytique de la politique’, in Defert, D. and Ewald, F. (eds.), with Lagrange, J., Dits et écrits, 1954–1988, 4 vols., Vol. 3 (1994), 534, at 540–1 (author's translation).
32 L. Wittgenstein, Philosophical Investigations (1958), 47.
33 For a discussion of his study of the structure of international legal argument as in part a descriptive project in this sense, see M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), 563–73.
34 Foucault, supra note 30.
36 Wittgenstein, supra note 32, at 47 (emphasis in original). See, further, Davidson, A. I., ‘Structures and Strategies of Discourse: Remarks towards a History of Foucault's Philosophy of Language’, in Davidson, A. I. (ed.), Foucault and His Interlocutors (1997), 1, at 2–3.
37 M. Foucault, ‘Linguistique et sciences sociales’, in Defert and Ewald, supra note 30, 821, at 824. Foucault there suggested that the question whether it was possible to develop a formal rationalization of an empirical field that was not immediately organized around the logic of causal determinism was at the heart of contemporary philosophical and theoretical debates, including within Marxism.
38 Foucault, M., ‘Foreword to the English Edition’, in Foucault, M. (ed.), The Order of Things: An Archaeology of the Human Sciences (1994), ix, at xiii.
39 M. Serres, ‘The Geometry of the Incommunicable: Madness’, in Davidson, supra note 36, 36, at 41.
40 Davidson, supra note 36, at 11.
41 Foucault, supra note 37, at 826.
42 Foucault, supra note 38, at xvi.
43 I have explored the biopolitical nature of forms of international law and humanitarian expertise that ‘take life as a task’ in Orford, A., ‘Positivism and the Power of International Law’, (2000) 24 Melbourne University Law Review 502; Orford, A., ‘Beyond Harmonization: Trade, Human Rights and the Economy of Sacrifice’, (2005) 18 LJIL 179, at 203–4, 208–11; Orford, A., ‘Biopolitics and the Tragic Subject of Human Rights’, in Dauphinee, E. and Masters, C. (eds.), The Logics of Biopower and the War on Terror: Living, Dying, Surviving (2007), at 205–28.
44 This is the (characteristically ambitious) task set for the concept by Gareth Evans: see G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (2008).
45 Foucault, supra note 16, at 40.
46 Ibid., at 42.
47 For an exploration of the ways in which Dag Hammarskjöld's training as an economist informed his ideas about neutrality and about the proper limits to the role of the state in the context of decolonization, see Orford, supra note 1, at 52–6, 86; A. Orford, ‘Law, Economics and the Administration of Decolonisation: Rethinking the Legacy of Dag Hammarskjöld’, in H. Melber and C. Stahn (eds.), Peace, Diplomacy, Global Justice and International Agency: Rethinking Human Security and Ethics in the Spirit of Dag Hammarskjöld (forthcoming).
48 The Secretary-General has specifically included the threat of punishment under international criminal law as a means of preventing mass atrocity and thus as a technique for implementing the responsibility to protect concept: UN Secretary-General, supra note 7, paras. 17–19, 54.
49 See, generally, the concept note developed by the government of Brazil on ‘responsibility while protecting’, annexed to the ‘Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General’, UN Doc. A/66/551-S/2011/701 (2011) (pointing to the ‘the painful consequences of interventions that have aggravated existing conflicts, allowed terrorism to penetrate into places where it previously did not exist, given rise to new cycles of violence and increased the vulnerability of civilian populations’ and arguing that techniques such as regime change ‘may make it even more difficult to attain the protection objectives pursued by the international community’). For an argument that the responsibility to protect has effectively operated as a ‘right to punish’ in the context of Darfur, see M. Mamdani, Saviors and Survivors: Darfur, Politics, and the War on Terror (2009).
50 For the counterargument ‘that Foucault's self-professed objection to theory is somewhat overstated’ and that Foucault can usefully be read as offering a theorization of law broadly conceived, see B. Golder and P. Fitzpatrick, Foucault's Law (2009), 3–5.
51 See, e.g., Security, Territory, Population: Lectures at the Collège de France 1977–1978 (translated by G. Burchell) (2007), 1 (‘the analysis of these mechanisms of power that we began some years ago, and are continuing with now, is not in any way a general theory of what power is. It is not a part or even a start of such a theory’). For the argument that Foucault's method is a response to or ‘a function of the materials and questions examined, and therefore not – a caveat Foucault was often obliged to repeat – a universal recipe prescribed for every form of political analysis’, see Gordon, C., ‘Introduction’, in Faubion, J. D. (ed.), Michel Foucault: Power (The Essential Works, Volume 3) (2000), xi, at xxiv.
52 Foucault, supra note 16.
53 For the related argument that Foucault's earlier 1975–76 lectures (M. Foucault, Society Must be Defended: Lectures at the Collège de France 1975–76, (2003)) challenge the conception of the state that appears in much international human rights scholarship, see Orford, ‘Biopolitics and the Tragic Subject of Human Rights’, supra note 43.
54 On the ways in which the study of international and European law might help to make intelligible the operations of power involved in the administration of everyday life, both in Europe's former colonies and increasingly in Europe itself, see further Orford, A., ‘Embodying Internationalism: The Making of International Lawyers’, (1998) 19 Australian Year Book of International Law 1; A. Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (2003); Orford, supra note 21; Orford, A., ‘Europe Reconstructed’, (2012) 75 Modern Law Review 275.
55 T. Pinkard, Germany Philosophy 1760–1860: The Legacy of Idealism (2002), 244–5 (emphasis in original).
56 Schlag, P., ‘A Brief Survey of Deconstruction’, (2005) 27 Cardozo Law Review 741, at 743.
57 Foucault, supra note 30.
58 See, e.g., L. Althusser, Machiavelli and Us (translated by Gregory Elliot) (2001); Laski, H., ‘The Responsibility of the State in England’, (1919) 32 Harvard Law Review 447; H. Marcuse, A Study on Authority (translated by Joris De Bres) (2008); A. Myrdal, Nation and Family (1941); F. Neumann, Behemoth: The Structure and Practice of National Socialism (1944).
59 Foucault makes a related argument when he comments that ‘in the theoretical domain, the imperative discourse that consists in saying “love this, hate this, that is good, that is bad, be for this, beware of that,” seems to me, at present at any rate, to be no more than an aesthetic discourse that can only be based on choices of an aesthetic order’ and that such a discourse ‘seems to me to be very flimsy when delivered from a teaching institution or even just on a piece of paper’: Foucault, supra note 51, at 3.
60 A. S. Byatt, The Biographer's Tale (2001).
61 Ibid., at 1.
62 Ibid., at 1–2 (emphasis in original).
63 Ibid., at 5.
64 Ibid., at 18.
65 Ibid., at 4 (emphasis in original).
66 Ibid., at 25.
67 M. Poovey, A History of the Modern Fact: Problems of Knowledge in the Sciences of Wealth and Society (1998).
69 One of the most significant attempts to rethink the relation between fact and value in the human sciences can be found in the work of the postwar generation of Swedish jurists, social scientists, and economists in Uppsala and beyond who were influenced by (their interpretation of) Axel Hägerström's critique of value metaphysics and magical thinking. For a discussion of the influence of Hägerström on a generation who included the young Dag Hammarksjöld, see G. Myrdal, ‘Postscript’, in P. Streeten, Value in Social Theory (1958), 237, at 250–1, and for an introduction to the relevance for international law of the Scandinavian realism that was shaped in part by Hägerström, see Koskenniemi, M., ‘Introduction: Alf Ross and Life Beyond Realism’, (2003) 14 EJIL 653. It is interesting to speculate about the influence that the intellectual climate in Uppsala and the nearby Stockholm during the 1950s had on Foucault's desire to avoid ‘magical’ rather than ‘effective’ thinking. For a discussion of the period Foucault spent from 1955 to 1958 as a French instructor at the Romance Language Institute of the University of Uppsala and as director of the Maison de France, see D. Eribon, Michel Foucault (translated by Betsy Wing) (1992), 73–86. Admittedly, in Eribon's telling, the influences on Foucault's thought during that period all resulted from encounters with French visitors to Uppsala and Stockholm – but can it really have been like that? At least one sign of the ongoing effect that this period had on Foucault's thought is the central role played by Linnaean systems of classification in Foucault, The Order of Things, supra note 38.
70 D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (1997), 164.
71 J. Winterson, Sexing the Cherry (1990), 81. For an earlier attempt to reflect upon the forms of knowledge and political projects involved in mapping (which also closes with this quote from Sexing the Cherry), see Orford, A., ‘A Journal of the Voyage from Apology to Utopia’, (2006) 7 German Law Journal 993.
* Anne Orford is the holder of the Michael D. Kirby Chair of International Law and an Australian Research Council Future Fellow at Melbourne Law School, University of Melbourne [email@example.com]. This essay was originally presented as the opening lecture at the Swedish National Doctoral Student Conference on Writing Law: The Use of Words in an Academic Context held at Lund University, 22 September 2011. I am extremely grateful to the conference organizers for inviting me to take part in that conference, to Tanja Aalberts and Ben Golder for the invitation to publish the text of the lecture in this special issue and for their comments, and to Andrew Robertson for his responses to the text in its various forms.
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