This article considers the relationship between the uses and forms of history within international law and questions of method in the development of histories of international law. It focuses on the advantages of genealogy as an approach to the history of international law given its capacity to both explain the way in which the law itself makes use of the past and intervene in this.
Elaborating on the compatibility between genealogy and elements of the contextual approach to history associated with the ‘Cambridge School’, this article challenges recent suggestions that anachronism is irrelevant, unavoidable, or even a ‘method’ that might be fruitfully embraced in studies of international law’s past directed towards explaining and potentially altering its present. It argues that historians of international law should take the dangers of anachronism seriously, particularly if the histories they develop are to operate as a form of critique and basis for change. Genealogy is a form of history that allows a particularly potent critique of international legal thought and practice. It opens up possibilities for more radical change by questioning and moving beyond the normative framework that usually structures (and limits) calls for reform in international law.
I would like to thank the participants at the Legal Histories beyond the State Seminar at the Lauterpacht Centre for International Law, University of Cambridge, for their comments on this article (June 2018). Special thanks are owed to Megan Donaldson, Surabhi Ranganathan, Annabel Brett, Coel Kirkby, and the anonymous reviewers for their valuable feedback. I would also like to thank B. S. Chimni and Dino Kritsiotis for their commentary on a much earlier presentation of the ideas developed in this article at the Third Annual Junior Faculty Forum for International Law.
1 Nietzsche, F., ‘On the Uses and Disadvantages of History for Life’, in Breazeale, D. (ed.), Untimely Meditations (1997), 57–124.
2 Nietzsche made a number of negative comments regarding the Untimely Meditations that suggest his dissatisfaction with the work as a whole: see T. H. Brobjer, ‘Nietzsche’s View of the Value of Historical Studies and Methods’, (2004) 65(2) Journal of the History of Ideas, 301–22; A. K. Jensen, An Interpretation of Nietzsche’s ‘On the Uses and Disadvantage of History for Life’ (2016), Ch. 6. The best evidence of Nietzsche’s move away from the analysis in ‘The Uses and Disadvantages of History for Life’, however, is the way in which his later work – On The Genealogy of Morality in particular – demonstrates a ‘use of history for life’ that is quite distinct from the ‘monumental’, ‘antiquarian’, and ‘critical’ types of history discussed in the earlier essay (all of which are clearly identified as having both uses and disadvantages). It is important to recognize that critical history as identified in this typology differs significantly from genealogy: among other things, the former is ‘a history that judges and condemns’, whereas a Nietzschean (and Foucauldian) genealogy, as discussed below, resists this normative structure: see F. Nietzsche, supra note 1, at 72.
3 M. Foucault, Discipline and Punish: The Birth of the Prison (2005), 30–1.
4 Foucault, M., ‘Nietzsche, Genealogy, History’, in Bouchard, D. F. (ed.), Language, Counter-Memory, Practice (1977), 139, 146.
5 Marks, S., ‘False Contingency’, (2009) 62 Current Legal Problems, 1, 2.
6 Foucault, M., ‘Friendship as a Way of Life’, in Lotringer, S. (ed.), Foucault Live (1989), 308, 312.
8 Foucault, supra note 4, at 156.
9 Skinner makes a similar point in relation to the methodological precepts he advances in ‘Meaning and Understanding in the History of Ideas’ and subsequent works: see Q. Skinner, ‘A Reply to My Critics’, in J. Tully (ed.), Meaning and Context: Quentin Skinner and his Critics (1988), 231, 233.
10 G. Gutting, Foucault (2005), 50.
11 On the distinction between first and second generation TWAIL scholarship see Anghie, A. and Chimni, B. S., ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) 2 Chinese Journal of International Law 77; Chimni, B. S., ‘The World of TWAIL’, (2011) 3 Trade, Law & Development 14; Gathii, J., ‘TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography’, (2011) 3 Trade, Law & Development 26. Some of the problems with this ‘periodization’ are set out by Mickelson: Mickelson, K., ‘Taking Stock of TWAIL Histories’, (2008) 10 International Community Law Review 355, 360–1. Nevertheless, there does appear to be a significant difference in the use of history to challenge the neglect of the third world in traditional (and Eurocentric) accounts of international law before and after the 1980s: see Lorca, A. Becker, ‘Eurocentrism in the History of International Law’, in Fassbender, B. and Peters, A. (eds.), The Oxford Handbook of the History of International Law (2012), 1034.
12 Gathii, J., ‘TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography’, (2011) 3 Trade, Law & Development 26. The 1990s saw significant interplay between TWAIL, Critical Legal Studies, Critical Race Theory and Lat-Crit Theory in this regard.
13 Influential works include G. Gong, The Standard of Civilization in International Society (1984); M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001) (focusing on inter-imperial competition and conflict); A. Anghie, Imperialism, Sovereignty and the Making of International Law (2007) (focusing on the colonial encounter). Elements of Koskenniemi’s Gentle Civilizer and his epilogue to the 2005 reissue of From Apology to Utopia may be understood to respond to TWAIL critique of the latter work: see Rajagopal, B., ‘Martti Koskenniemi’s From Apology to Utopia: A Reflection’, (2006) 7(12) German Law Journal 1089.
14 It is indicative of this resistance that doctrinal scholars rarely respond to such critical histories in published work. The types of objections discussed in this article are more often articulated informally. Silence and disengagement in the realm of scholarship is consistent with a belief that these histories do not and, indeed, cannot speak to doctrinal scholarship.
15 See Orford, A., ‘International Law and the Limits of History’, in Werner, W., de Hoon, M. and Galàn, A. (eds.), The Law of International Lawyers: Reading Martti Koskenniemi (2017); Orford, A., ‘On International Legal Method’, (2013) 1(1) London Review of International Law 166; A. Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’, (2012/2) NYU Institute for International Law and Justice Working Paper 1 (later published in M. Toufayen, E. Tourme-Jouannet and H. Ruiz Fabri (eds.), Droit international et nouvelles approches sur le tiers-monde: entre répétition et renouveau (2013), 97).
17 A. Orford, ‘The Past as Law or History?’, supra note 15, at 2; Orford, ‘On International Legal Method’, supra note 15, at 175.
18 See note 14, above.
19 Orford, ‘International Law and the Limits of History’, supra note 15; Orford, ‘The Past as Law or History?’, supra note 15; Orford, ‘On International Legal Method’, supra note 15.
20 Orford, ‘International Law and the Limits of History’, supra note 15 at, 305–6, 312; Orford, ‘On International Legal Method’, supra note 15 at 166, 171, 175–7.
21 Orford, ‘On International Legal Method’, supra note 15, esp. 175–7.
22 Orford, ‘The Past as Law or History?’, supra note 15, at 9; Orford, ‘On International Legal Method’, supra note 15, at 174–7. This point is elaborated in Section 5 below.
23 Orford, ‘The Past as Law or History?’, supra note 15, at 6–7; Orford, ‘On International Legal Method’, supra note 15, at 175.
24 Ibid., at 2.
25 Ibid., at 9.
26 Ibid., at 11. See also Orford, ‘On International Legal Method’, supra note 15, at 174. Section 5 of this article discusses Orford’s understanding of the present utility of her study of the past in A. Orford, International Authority and the Responsibility to Protect (2011).
27 Orford, ‘The Past as Law or History?’, supra note 15, at 2.
28 See Pahuja, S., ‘Laws of Encounter: A Jurisdictional Account of International Law’, (2013) 1(1) London Review of International Law 63, 96.
29 Skinner, Q., ‘Meaning and Understanding in the History of Ideas’, (1969) 8 History and Theory 3, 9. Cf. A. Orford, ‘On International Legal Method’, supra note 15, at 172–3.
30 T. Skouteris, ‘Engaging History in International Law’, in J. Beneyto and D. Kennedy (eds.), New Approaches to International Law (2012), 99–121.
31 Ibid., at 100.
32 Ibid., at 112–13.
34 Ibid., at 114–16.
35 Ibid., at 116–17.
36 Ibid., at 117.
40 Ibid., at 118.
41 Ibid., at 101.
42 Ibid., at 117.
43 This article will not go into this history of history and its connection with the history of international legal thought and practice, but I want to suggest that such a study is necessary to understand the particular forms and uses of history within modern international law.
44 The significance of the nineteenth century for modern international law has been emphasized by, inter alia, Koskenniemi, supra note 13; Anghie, supra note 13; and, more recently, L. Benton and L. Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (2016).
45 Korhonen appears to see some potential in ‘a very thin variety of historical realism’ that takes as its starting point a convention regarding what historical reality ‘is’, insofar as this may be the basis for ‘further agreement’. She also recognizes, however, that all interested parties will never be present to agree on any such convention, that future implications can never be fully predicted, and, importantly, that the representation of reality agreed upon will ‘always display some preferences’: O. Korhonen, International Law Situated: An Analysis of the Lawyer’s Stance towards Culture, History and Community (2010), 149.
46 Skouteris, supra note 30, at 106–8.
47 See R. Barthes, ‘The Reality Effect’, in R. Barthes, The Rustle of Language (1986), 141–8; F. Ankersmit, History and Tropology: The Rise and Fall of Metaphor (1994), 125–61.
48 See M. Foucault, ‘Truth and Power’, in C. Gordon (ed.), Power/Knowledge: Selected Interviews and Other Writings by Michel Foucault, 1972-1977 (1980), 109, 118.
49 Skouteris, supra note 30, at 117.
50 Geuss, R., ‘Nietzsche and Genealogy’, (1994) 2 European Journal of Philosophy 274.
51 Ibid., at 275.
52 Ibid., at 276; F. Nietzsche, On the Genealogy of Morals (1996), 46.
53 Geuss, supra note 50, at 276. Cf. C. Koopman, Genealogy as Critique: Foucault and the Problems of Modernity (2013), 18, 20, 73–83 who argues – unconvincingly in my assessment – that Nietzsche commits the genetic fallacy.
54 Geuss, ibid., at 276.
55 Foucault, supra note 4, at 140.
56 Nietzsche, supra note 1, at 59.
57 Skinner, supra note 29.
58 Cf. Orford, ‘The Past as Law or History?’, supra note 15; Orford, ‘On International Legal Method’, supra note 15, at 174.
59 E. Hobsbawm, On History (1997), 6–7. It is not necessary for such a history to take the form of an ideology critique that claims to uncover the ‘truth’ of the past. See further the discussion of truth below.
60 A. Orford quotes Lesaffer’s critical comments on anachronism, which are, however, tied to advocacy for an antiquarianism that the critique of anachronism by no means requires: Orford, ‘The Past as Law or History?’, supra note 15, at 6–7. Orford later associates Lesaffer’s views with contextual history broadly and Skinner in particular: Orford, ‘On International Legal Method’, supra note 15, at 170–3.
61 See Orford, ‘The Past as Law or History?’, supra note 15, at 11; Orford, ‘On International Legal Method’, supra note 15, at 174.
62 See Orford, ‘The Past as Law or History?’, supra note 15, at 1–3 (including note 11), 15–16. Similarly, in her work on the responsibility to protect concept, Orford notes that international lawyers concerned to dismiss the question of the juridical status of states subject to international administration claimed that it was anachronistic: Orford, supra note 26, at 39, 41. Pahuja has also argued that ‘most [international lawyers] … [say] that to draw attention to the particularity of the state form is anachronistic, and that since decolonisation, the existence of rival jurisdictions is of historical interest only’: Pahuja, supra note 28, at 74. While both scholars go on to argue that an investigation of these matters is not anachronistic and has contemporary relevance, the types of claims they are concerned to challenge seem to involve a conservative denial of the relevance of the past for the present rather than a critique of anachronism along the lines of that Skinner sets out. To defend the latter is not to affirm the former.
63 Orford, ‘The Past as Law or History?’, supra note 15, at 3.
64 Ibid., at 2.
66 Nevertheless, Orford again goes on to argue that Anghie’s work is not anachronistic. Specifically, she argues that Anghie’s study of Vitoria ‘in context’ does not project ‘modern internationalism … onto early modern ius gentium’ but considers the use of Vitoria’s work after its publication in the US based Carnegie series: Orford, ‘The Past as Law or History?’, supra note 15, at 16. This distinction between Vitoria in his time and subsequent recourse to his work is not clearly drawn by Anghie. Orford embraces anachronism more fully in ‘On International Legal Method’, supra note 15.
67 I. Hunter, ‘Global Justice and Regional Metaphysics: On the Critical History of the Law of Nature and Nations’, in S. Dorsett and I. Hunter (eds.), Law and Politics in British Colonial Thought: Transpositions of Empire (2010), 11, 12. This does not mean that Hunter would object to an argument showing how subsequent interpretations of earlier texts considering the jus gentium, including those taking it to signify a promise of global justice, shaped international law – though he might insist that those interpretations should also be historicized.
68 Orford, ‘The Past as Law or History?’, supra note 15, at 2.
70 Orford, ‘On International Legal Method’, supra note 15, at 175.
71 According to the first branch of the doctrine of intertemporal law, ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when the dispute in regard to it arises or falls to be settled’: Island of Palmas Case (Netherlands/USA) (1928) 2 UNRIAA 829, 845. The second branch of the doctrine proposed by the arbitrator, Max Huber, recognizes that the separate question of whether a right lawfully established in the past (according to the law contemporary with it) continues to exist should also be answered by reference to the law contemporary with it – in this case, the conditions governing the continued existence of such a right at the time that question arises. The suggestion here is not that the doctrine of intertemporal law directly maps onto the historian’s concern with anachronism but that some common concerns may be an element of the more complex history of this doctrine, which is also tied up with European imperialism and the acquisition of territory in particular. The role of historical forms of reasoning in this context might be an interesting entry point for a critical examination of the doctrine and its application in past and present international law.
72 Orford, ‘On International Legal Method’, supra note 15, at 172.
73 Ibid., at 173–4; Orford, ‘The Past as Law or History?’, supra note 15, at 7–8.
74 Orford, ‘The Past as Law or History?’, supra note 15 at 7–8.
75 Orford, ‘International Law and the Limits of History’, supra note 15.
76 Orford, ‘On International Legal Method’, supra note 15; Orford, supra note 26.
77 Peevers, C., ‘Conducting International Authority: Hammarskjold, the Great Powers and the Suez Crisis’, (2013) 1(1) London Review of International Law 131.
78 Orford, ‘The Past as Law or History?’, supra note 15.
79 Ibid., at 2.
80 Orford, supra note 26, Ch. 3.
81 Ibid., at 107–8.
82 Ibid., e.g., 109, 161–2.
83 Ibid., at 112.
84 Geuss, supra note 50, at 276 (emphasis omitted).
85 See, e.g., Orford, supra note 26, at 108, 119, 132.
86 Ibid., at 109.
87 Skinner, supra note 29, at 27. This goes beyond the inevitability that ‘[t]he problems on which historians feel it worth expending their energies will … reflect their own sense of intellectual priorities’: Skinner, supra note 9, at 248.
88 Foucault, supra note 4, at 144.
89 Orford, supra note 26, at 108, 137. The normative character of this project may also limit its power as critique, as suggested more generally in Section 6.
90 Orford, ‘On International Legal Method’, supra note 15, at 175.
91 ‘Genealogy, n.1 (a)’, Oxford English Dictionary Online, 20 March 2014, available at www.oed.com.
92 R. Lesaffer, ‘International Law and its History: The Story of an Unrequited Love’, in M. Craven, M. Fitzmaurice and M. Vogiatzi, Time, History and International Law (2006), 27, 34.
93 Foucault, supra note 4, at 139.
94 Geuss, supra note 50, at 274–7.
95 Lesaffer, supra note 92, at 34.
96 Ibid., at 34–5.
97 Orford, ‘The Past as Law or History?’, supra note 15, at 7.
98 F. Oakley, Politics and Eternity: Studies in the History of Medieval and Early-Modern Political Thought (1999), Chs. 1, 10.
99 Whether Oakley’s implementation of this notion of context in his historical work avoids anachronism is a separate question. As Skinner has stressed, the ‘influence’ of other thinkers or ideas should be properly evidenced rather than assumed: Skinner, supra note 29, at 25–7. Oakley’s account of ‘traditions of discourse or argument’ and plural ‘traditions of thought’ therein claims a high degree of continuity ‘across (sometimes) long periods of time’ that evidently needs to be proven rather than presupposed. Ibid., at 23–4. Notably, Oakley insists on the historicity of his claims in this regard and remains concerned to avoid anachronism even as he has sought to revive aspects of Lovejoy’s methodology in The Great Chain of Being and to defend what he polemically embraces as a form of ‘prolepsis’; see ibid., at 7–24; F. Oakley, Omnipotence, Covenant, and Order: An Excursion in the History of Ideas from Abelard to Leibniz (1984), esp. Ch. 1; F. Oakley, ‘In Praise of Prolepsis: Meaning, Significance and the Medieval Contribution to Political Thought’, (2006) 27(3) History of Political Thought 407, 418–22. Rather than embracing a prolepsis that conflates the meaning of past texts and practices with their significance as subsequently contributing to an allegedly general tradition of argument or discourse in Western political thinking, Oakley is concerned to make the point that the significance of these texts and practices in view of subsequent developments can constitute a reason for their study – a study which still requires an account of the meaning of these texts and practices in their context: see Oakley, ‘In Praise of Prolepsis’, 418–22. One risk with Oakley’s project to demonstrate the continuities between medieval and modern political thought in the West is that it may make him less attentive to discontinuities, which may not only distort his account of the past but obscure aspects of it with value for the present. A crucial question is whether Oakley searches for ‘sameness’ or uncovers relevant continuity in his historical studies.
100 Orford, ‘On International Legal Method’, supra note 15, at 174. See Oakley, supra note 98, at 19–24; Oakley, F., ‘Lovejoy’s Unexplored Option’, (1987) 48(2) Journal of the History of Ideas 231, 245.
101 See Q. Skinner, ‘Interpretation and the Understanding of Speech Acts’, in Q. Skinner, Visions of Politics, Journal of the History, vol. 1, (2002), 103, 116; Skinner, supra note 9, at 275. This is not, as Orford alleges, a ‘reconsideration’ of his earlier views: Orford, ‘On International Legal Method’, supra note 15, at 174.
102 M. Foucault, The Order of Things: An Archaeology of the Human Sciences (1971), 386.
103 Orford, ‘On International Legal Method’, supra note 15, at 175, note 27.
104 H. Butterfield, The Whig Interpretation of History (1931). Skinner’s concern with the relationship between ideology and history predates his influential 1969 essay on ‘Meaning and Understanding’: see, e.g., Skinner, Q., ‘History and Ideology in the English Revolution’, (1965) 8(2) The Historical Journal 151–78.
105 Skinner, supra note 29, at 52–3. See also Skinner, supra note 101, at 125–7.
106 Skinner, supra note 29, at 10.
107 Ibid., at 10–11. See A. Lovejoy, The Great Chain of Being (1960).
108 R. G. Collingwood, The Idea of History (1994), 257.
109 Orford, ‘On International Legal Method’, supra note 15, at 175.
110 See, e.g., his study of ‘the process by which the modern concept of the state came to be formed’ in Q. Skinner, The Foundations of Modern Political Thought, vols 1 & 2 (1978), ix. That Skinner now expressly describes his work as genealogy does not signal a newfound interest in tracing concepts over time: see Skinner, Q., ‘A Genealogy of the Modern State’, (2008) 162 Proceedings of the British Academy 325; Q. Skinner, ‘A Genealogy of Liberty’, presented at UC Berkeley (15 September 2008). Rather, he appears to have found in genealogy an idea and practice appropriate to his aims as a historian, including his interest in developing a methodology that is both ‘more satisfactory as history’ and ‘serve[s] to invest the history of ideas with its own philosophical point’: Skinner, supra note 29, at 4. Notably, Skinner’s earlier work had already drawn on both Foucault’s notion of archaeology (which Foucault’s practice of genealogy builds upon rather than replaces) and Nietzsche’s approach in his Genealogy of Morality: Q. Skinner, Liberty before Liberalism (1998), see 112 (note 19), 116–18. Skinner’s later method nevertheless departs in certain respects from a Nietzschean-Foucauldian genealogy: see M. Lane, ‘Doing Our Own Thinking for Ourselves: On Quentin Skinner’s Genealogical Turn’, (2012) 73(1) Journal of the History of Ideas 71–82. Yet, the shared concerns predate his declared embrace of this approach. Some of these similarities are noted by Tully: J. Tully (ed.), Meaning and Context: Quentin Skinner and his Critics (1988), 7, 16–19. Tully is another contextual historian who came to explicitly embrace a genealogical approach: see J. Tully, Public Philosophy in a New Key, vol. 1 (2008), 16.
111 Orford, ‘The Past as Law or History?’, supra note 15, at 7–9.
112 See, e.g., Foucault supra note 4, at 152–3, 156. F. Nietzsche, ‘Twilight of the Idols’, in W. Kaufmann (ed.), The Portable Nietzsche (1976), 463, 479.
113 Foucault, supra note 4, at 152–3, 156.
114 See note 111 above.
115 See Skinner, supra note 101, at 103.
116 C. Koopman, ‘Comment on Quentin Skinner, “A Genealogy of Liberty”’, Political Theory Reporter, 17 September 2008, available at politicaltheoryreporter.wordpress.com/2008/09/17/quentin-skinner/.
117 M. Foucault, The History of Sexuality: The Use of Pleasure, vol. 2 (1990), 10–11. See also M. Foucault, ‘Polemics, Politics and Problematizations’, in P. Rabinow (ed.), The Essential Works of Foucault, vol. 1 (1997), 111, 117–19.
118 M. Foucault, ‘The Art of Telling the Truth’, in L. D. Kritzman (ed.), Politics, Philosophy, Culture: Interviews and Other Writings 1977-84 (1990), 86, 88; Koopman discusses these two notions of problematization and their relation in his Genealogy as Critique, supra note 53, at 99–101.
119 Foucault, supra note 3, at 31.
120 Foucault, supra note 4, at 146.
121 M. Foucault, ‘The Concern for Truth’, in Kritzman, supra note 118, at 255, 262.
122 H. L. Dreyfus and P. Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (1983), 118.
124 Foucault, supra note 4, at 146.
125 M. Foucault, ‘On Power’, in Kritzman, supra note 118, at 101.
126 J. Butler, ‘What is Critique? An Essay on Foucault’s Virtue’, in D. Ingram (ed.), The Political: Readings in Continental Philosophy (2002), 212.
127 T. Lemke, ‘Comment on Nancy Fraser: Rereading Foucault in the Shadow of Globalization’, (2003) 10 Constellations 172, 175.
129 Butler, supra note 126, at 212–13.
130 R. Geuss, ‘Genealogy as Critique’, (2002) 10 European Journal of Philosophy 209, 210.
131 Ibid., at 209.
132 Ibid., at 210–11.
133 Ibid., at 211.
134 Ibid., at 212. This approach departs in important ways from deconstruction – as Foucault cautioned, ‘any confusion between these two methods would be unwise’: M. Foucault, ‘Polemics, Politics and Problematizations’, in Rabinow, supra note 117, at 118.
135 M. Foucault, ‘Revolutionary Action: “Until Now”’, in Bouchard supra note 4, at 230.
136 M. Foucault, ‘What is Enlightenment?’, in P. Rabinow (ed.), The Foucault Reader (1986), 32, 46.
137 H. Arendt, ‘Hannah Arendt on Hannah Arendt’, quoted by W. Brown, Politics out of History (2001), 91.
138 Butler, supra note 126, at 214.
139 Nietzsche, supra note 52, esp. 11–38.
140 Ibid., at 37.
141 Butler, supra note 126, at 214.
142 Ibid., at 219.
144 M. Foucault, ‘On the Genealogy of Ethics: An Overview of Work in Progress’, in Rabinow supra note 136, at 340, 343.
145 M. Foucault, ‘Questions of Method’, in G. Burchell, C. Gordon and P. Miller (eds.), The Foucault Effect: Studies in Governmentality (1991), 73, 84.
146 Foucault, supra note 4, at 156.
147 Orford, ‘The Past as Law or History?’, supra note 15, at 9.
148 See Hunter, supra note 67, at 11–12. Cf. Pahuja, supra note 28, at 96; Orford, ‘The Past as Law or History?’, supra note 15, at 9.
149 A. Genovese, ‘How to Write Feminist Legal History: Some Notes on Genealogical Method, Family Law, and the Politics of the Present’, in D. Kirkby (ed.), Past Law, Present Histories (2012), 139, 143.
150 Foucault, supra note 136, at 32, 45.
151 Ibid., at 45–6.
152 Ibid., at 46.
153 M. Foucault, ‘Polemics, Politics and Problematizations’, in Rabinow, supra note 117, at 118; M. Foucault, ‘Discourse and Truth: The Problematization of Parrhesia’, in M. Foucault, Six Lectures at UC, Berkeley, 1983, transcription available at foucault.info/parrhesia/.
154 This is an adaptation of a point made by D. Taylor, ‘Normativity and Normalization’, (2009) 7 Foucault Studies, 45, 58.
156 Butler, supra note 126, at 216.
157 Foucault, ‘What is Critique?’, in S. Lotringer (ed.), The Politics of Truth (2007), 41, 44. The point is not that we might escape power, but that we can expose and challenge rather than advance the proliferation of its most oppressive forms.
* I would like to thank the participants at the Legal Histories beyond the State Seminar at the Lauterpacht Centre for International Law, University of Cambridge, for their comments on this article (June 2018). Special thanks are owed to Megan Donaldson, Surabhi Ranganathan, Annabel Brett, Coel Kirkby, and the anonymous reviewers for their valuable feedback. I would also like to thank B. S. Chimni and Dino Kritsiotis for their commentary on a much earlier presentation of the ideas developed in this article at the Third Annual Junior Faculty Forum for International Law.
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