[I]n the constitution of that Other of Europe, great care was taken to obliterate the textual ingredients with which such a subject could cathect, could occupy (invest?) its itinerary—not only by ideological and scientific production, but also by the institution of the law…. This is not to describe “the way things really were” or to privilege the narrative of history as imperialism as the best version of history. It is, rather, to continue the account of how one explanation and narrative of reality was established as the normative one.Footnote 1
I. Introduction
Martinique-born litterateur Aimé Césaire’s Notebook of a Return to the Native Land (1939), an epic poem condemning colonial violence and its atrocities in the lands of “Others,” calls for abolishing the old order with its “aged poverty rotting under the sun.”Footnote 2 It also imagines a new order through revolutionary defiance and spiritual renewal captured in his declaration that, “I would come to this land of mine and I would say to it: ‘Embrace me without fear…. And if all I can do is speak, it is for you I shall speak.’”Footnote 3 I understand Third World Approaches to International Law (TWAIL) as a critical intellectual tradition positioned between the decaying liberal architecture of international and human rights, and the revolutionary call for new theorizations in rights discourse and the recognition of the rights-denied/deserving “Other.”
This essay engages with the critiques and alternative conceptions of selfhood presented in Achille Mbembe’s Necropolitics (2019) and Saba Mahmood’s The Politics of Piety: The Islamic Revival and the Feminist Subject (2004). It elaborates on the centrality of a specific conception of the subject that rests at the heart of human rights, and the exclusions, marginalizations and epistemic violence it enacts. The analysis opens space for the consideration of alterative non-liberal conceptions of subjectivity and life-worlds to which they are tethered, compelling a reconsideration and reorientation of the futurity of human rights in light of this consideration. The analysis steers the space between TWAIL proposals for reform and reinvestment in human rights, and the rhetoric of cultural relativists or ideologues of various persuasion who foment collective practices that are inhuman and antihuman and use critiques of human rights to refute human rights and embrace cultural orthodoxies.
The essay focuses on the structuring of the “Other” subject within human rights discourse that is a major theme in TWAIL scholarship. The international human rights regime centers on a particular conception of the human subject: the sovereign, autonomous, finite, rational, historical subject. Within this schema, all human beings are equally placed and equally entitled to human rights. Those subjects who are able to successfully claim rights align with this inscription. TWAIL, amongst other critical intellectual projects, challenges this dominant conception of the subject, excavating its constitution and sustenance through exceptionalism and racial, gendered, class and sexual hierarchies that at times justify the exclusion and/or violence against “Others” deemed as threats to the liberal order.Footnote 4 TWAIL delineates the complicity of human rights in violence, showing how it curates, elevates, and valorizes the sovereign liberal subject, while abjecting, dispossessing, and decimating the non-liberal “Other” through coercion, displacement, expulsion, intentional starvation, settler-colonialism, military invasion, and mass murder. This violence is conducted directly or indirectly, ostensibly to uphold international law and order and protect liberal democracy and the liberal way of life from “Other” threats. The human rights regime thus becomes an arena for exercising liberal power over the “Other” rather than for emancipation.
“Law as violence” remains central to TWAIL scholarship, evident in how colonial international law has been used to justify, perpetuate, and institutionalize dominance over and subjugation of the “Other” through shifting concepts of war, conquest, and genocide, as well as epistemic violence. A central focus of the books under discussion is how this mode of violence contains the dismissal or erasure of alternative understandings of subjectivity and the non-liberal (not illiberal) life-worlds to which these are linked. This relationship privileges certain groups, individuals, and states, while repressing, depriving, or excluding others through structures central to the autonomous, rational, liberal subject formation.
TWAIL critiques of human rights are inseparable from TWAIL critiques of international law, informed and structured by colonial legacies that created the “uncivilized Other” to justify colonial rule.Footnote 5 This idea remains ubiquitous in international law and human rights.Footnote 6 TWAIL scholarship unmasks the understanding of the subject associated with liberal/Western hegemonic epistemologies, opening space for resistance, as well as alternative subject formations and emancipatory politics beyond the liberal “fishbowl.”Footnote 7 These alternative registers are found in conceptions of the subject linked to non-liberal epistemologies and philosophies, including but not confined to indigenous and faith-based traditions.Footnote 8
As a Global South/post-colonial feminist legal scholar, I find TWAIL appealing for its potential to offer insights into human rights and international law from the perspective of the disenfranchised “Other,” triggering new critical conversations.Footnote 9
The arguments in this essay unfold through five main parts. Part II introduces a central theme within TWAIL’s intellectual tradition involving a critical interrogation of the construction of the “Other” subject in international law and human rights. Parts III and IV provide a substantive review of Achille Mbembe’s Necropolitics and Saba Mahmood’s The Politics of Piety, illuminating their distinct contributions to rethinking subjectivity, agency, and epistemology from a critical post-colonial lens. Part V illustrates the relevance of these frameworks in contemporary case studies—Palestine and Afghanistan—demonstrating how human rights discourse is implicated in the violent exclusion and subjugation of “Others.” The essay ends with a mapping of TWAIL responses on whether, how, and when to engage human rights considering the critiques. It draws specific attention to the call for an epistemic shift—moving from liberal hubris to humility. This shift involves foregrounding the transformative and liberating potential in recognizing the “Other” as a knowledge producing subject, exploring the liberatory potential of non-liberal ways of knowing and being, and the implications of this shift for the futurity of human rights.
II. TWAIL and the Liberal Structuring of the “Other” Subject of Human Rights
TWAIL critically examines how the concept of the “human subject” in the international human rights regime is unable to survive without its counterpart, its “Other.” This idea of the “Other,” especially as described in Edward Said’s influential text Orientalism, reveals how Western thought has constructed Eastern societies as racially and civilizationally primitive, inferior, and immature.Footnote 10 This essentialist understanding about the Other/Orient is shaped by the operations of power, which in turn has justified and legitimated settler colonialism, imperial expansion, and violent interventions that include material, cultural, and epistemic violence. Despite critiques, particularly of Said’s monolithic and passive portrayal of the Other/Orient, the “Other” remains central to Global South/post-colonial critical scholarship. Post-colonial thinkers, most notably Franz Fanon (colonial violence and the racialized subject), and Gayatri Spivak (subaltern subjectivity), have further elaborated it.Footnote 11 Both develop the “Other” as an analytical device, exposing how the liberal, autonomous, rational, subject’s legitimacy is structured by dominant racial, gender, civilizational, and cultural norms, and advances imperial/colonial agendas.
The “Other” has been addressed in human rights in at least three discernible ways: through assimilation; by treating the difference as inevitable; or as a threat that warrants incarceration, internment, or annihilation.Footnote 12 In the remainder of this part, I briefly sketch out these different responses. Historically, assimilation enabled the colonized subject to acquire rights and legitimacy through civilizational maturity. It was selectively available to those who demonstrated cultural competence—that is—alignment with colonial ideas of civilizational maturity. Assimilation remains central to the liberal order today. For example, by way of illustration, the European Islamic veil bans exemplify the assimilation requirement for access to rights, where non-compliance risks denial of rights to education and/or free movement in the public space. At times, adherents of the practice desire both rights, while liberal democratic states compel a choice between wearing the veil and enjoying their human rights.Footnote 13 For those who consciously seek normativity, assimilation can have equivocal outcomes. It may ensure social tolerance and safety, but it does not necessarily ensure a deeper social acceptance. Religion is not addressed as an aspect of freedom within liberalism but within the language of toleration and to some extent equality.Footnote 14 Moreover, the “emancipation” of a Muslim woman continues to be defined, and recognition bestowed, in terms of the extent she is able to exercise personal freedom apart from the Muslim male, who, in the liberal view, is thoroughly misogynistic and will take every opportunity to oppress her. This aspect is elaborated upon later in this essay in the discussion of Mahmood’s text. A key point is that assimilation does not disrupt normative assumptions about the “Other” including for those claiming the veil as a self-chosen instrument of freedom. Assimilation continues to operate alongside the targeting, policing and penalizing of the “Other” within the wider goals of homogenization and orderly integration.
As regards the second approach, historically, some subjects including women, LGBTQ, and racial “Others,” have been regarded as inherently/biologically different, and unchangeable, justifying differential treatment, including the denial of rights. For example, enslaved people were denied their subjectivity and treated in law as objects to be bought and sold, based on an egregious linking of race and blackness to the lack of capacity to reason. In the present moment, while these groups have secured human rights throughout the world, their subjectivity remains precarious. Racial, gender, and sexual stereotypes and essentialism continue to impede their access to as well as enjoyment of rights. These stereotypes are invariably displaced onto a Global North/Global South, West/Rest divide. For example, in the name of protecting women’s rights, campaigns to counter violence against women are invariably based on assumptions about women from the Global South as being more victimized and subjected to ill-treatment by a primitive culture than their Global North counterparts.Footnote 15 These assumptions have led to legal regimes denying rights to certain groups or justifying protective detention and carceral interventions that reinforce gender, racial, and cultural stereotypes.Footnote 16
In the contemporary period there are several examples of difference being cast as dangerous, contaminating, or wholly evil. This includes the violent response to young Muslim men (especially after 9/11); the creation of the extra-legal category of “enemy combatant”; the indefinite detention of suspected terrorists in internment facilities such as Guantánamo Bay; or the deliberate starvation and violent elimination of Palestinians in Gaza, who are cast as “monsters” and “human animals” justifying Israel’s genocidal violence.Footnote 17 Such measures are justified by claims of safeguarding the liberal democratic world and its human rights project from the chaotic violence of feudal, illiberal societies that are assumed to exponentially breed evildoers, such as terrorists, who do not cherish or respect human rights, and hence are not entitled to their protections.Footnote 18 Such justifications are clear examples of what Kennedy describes as the “dark side” of human rights.Footnote 19
Mapping this persistent epistemic, discursive and material violence, including war, perpetrated on different scales against different subaltern “Others” by liberal democratic nations, TWAIL confronts the liberal order with essential and inescapable questions: how are these injustices justifiable, beyond the duplicitous and triumphal liberal platitudes that nothing less than “democracy” and the “rule of law” are at stake? Who benefits, who raises the liberal stakes, who plants the liberal flag? What underpins the modes of agency, resistance and self-belief asserted by “Others” locked into disenfranchisement, dispossession, abjection, and trauma? What “Other” epistemologies nourish them, gird their survival in inhuman conditions and absorb their inhuman suffering? What visions of the liberal perpetrators are reinscribed by their victims and internalized by future generations of “Others”?
TWAIL is an interdisciplinary, heterogenous, and critical project.Footnote 20 It is not a unified theoretical method but a strategic political orientation that foregrounds the experiences and perspectives of “the governed” both in the Global South and North. TWAIL draws on diverse intellectual traditions to unmask how international law both perpetuates as well as contests structures of domination inequality and exclusion in daily life.Footnote 21 A central feature that links its multiple trajectories include an endeavor to rewrite human rights and international law from a Global South vantage point.Footnote 22 The scholarship emphasizes historical materialism and the relationship between race, capitalism and imperialism in forging the violent structures and norms of liberal legal/rights discourse.Footnote 23 It unmasks the hegemonies and edicts of international law as benefiting the Global North, partly through ongoing racialized, political and military aggression against the liberal West’s untold millions of underprivileged “Others.”
TWAIL has faced numerous critiques, both internal and external. These include those who seek to defend the current human rights dispensation; argue that the TWAIL project lacks theoretical cohesion; assert that TWAIL has gone mainstream resulting in the dilution of its critical and transformative edge; or maintain that the project fails to live up to its claims to bring about transformation.Footnote 24 Some prominent critiques accuse TWAIL of anachronistic readings of history, being strong on diagnosis and weak on solutions, and pursuing a seemingly reformist agenda that merely adjusts the torque of the entrenched liberal narrative before reinstating it.Footnote 25 Thus, critics have argued that TWAIL has failed to realize its revolutionary/transformative promise.
In response, several TWAIL scholars have pointed out how some of the critique is not only reductive and based on a caricature of TWAIL, but also demonstrates a lack of familiarity with TWAIL scholarship, misreading it as an identity-based or diasporic-based critique of international law.Footnote 26 Some of the critiques also stem from the very epistemic structures TWAIL interrogates—structures that perpetuate the liberal worldview’s ideological hegemony in international law and human rights—that is, viewing the “Other” as an object of knowledge, rather than as a knowledge-producing subject. TWAIL’s unmasking of prevailing assumptions about agency and resistance that inform human rights and emerge from within a liberal framing, pushes us to reflect on life-worlds and understandings of freedom, agency and resistance that do not comport with a liberal mapping.Footnote 27
These well-intentioned critiques that align with the persistent push by similarly well-intentioned human rights advocates, leftists and progressives to present human rights as the antidote to cruelty, violence or repression, are calling for solutions from within the very same space which has been exposed as part of the problem. And the call for “solutions” and what is perceived as a disconnect between TWAIL analysis and the concerns of the communities that are ostensibly being represented, fails to recognize that knowledge is an end in itself and analysis is a politics. To separate these assumes that there is a straight line from knowing to doing politics that is human rights. TWAIL disrupts the confidence that there is a straight line between knowing and rushing into doing. Such an approach does not respond to the “Other” or analysis of the “Other,” nor address the complicity of human rights advocacy, including feminist and progressive positions, in some of the harms done. In fact, such an approach entirely closes off responses and explorations that do not align with a straight-lined approach to “solutions” or “solving the problem” and continue to reproduce the us/them binary. As a result, as Spivak argues, “We end up talking to ourselves, or to our clones abroad. Predictably, on left and right, you lose support when you stop us-and-them-ing, when you take away the unself-critical convenience of doing good or punishing.”Footnote 28
What is perceived as “anachronistic” is in fact a critique countering the linear view of history and the assumption that linear time inherently resolves all harms and injuries. It is this understanding of history that has colluded with empire and modern imperialism, defending it as well-meaning and promising progress.Footnote 29 This tradition rests on dominant forms of colonial knowledge and the archives that are still deployed to categorize and manage the subjugated “Other” and remains intent on preserving and projecting a single Eurocentric, progressive narrative while purging, distorting, and silencing the epistemes and self-inscriptions of the “Other.”Footnote 30
At the same time, the critiques of TWAIL reveal limits to its historical turn. While disruptive, this approach risks re-inscription, becoming an elite Third World project or positivist historiography, and remaining tethered to the Eurocentric discourse TWAIL aims to challenge.Footnote 31 These limits are evidenced in the tendency on the part of some TWAIL scholarship to resubmit to the coercive logic of the human rights project and the liberal script it sustains, albeit through radically restructuring the project and redeeming the universal. The desire to salvage human rights, even when complicit in exclusion, injustice, racial capitalism, and increased domination persists beyond TWAIL.Footnote 32 As Antony Anghie argues, TWAIL’s historiographical contributions seek to work with the contradictoriness of rights, to excavate whatever is left of their emancipatory possibilities after it’s eviscerating critiques of the liberal legal order. These gestures are not necessarily innovative or, as some have argued, progressive.Footnote 33
The reflections of Anghie and others indicate an awareness of the difficult path that TWAIL scholars are traversing. There remains an uncomfortable and persistent tension between critique, reform or redemption and revolution in the scholarship. Several questions persist: how can human rights and international law be used to further the interests of Third World people in light of the critiques? How can they be “written and understood from the perspective of the Third World?”Footnote 34 How can TWAIL address the complicity of human rights law within imperialism while also shining a light on the chauvinisms and complicities of post-colonial states and the violence they continue to unleash against their own people?Footnote 35 What subaltern insurrectional imaginations emerge from the seeming irreconcilability between the progressive claims and promises of human rights and the complex “Other” realities they regulate? In other words, how does TWAIL sustain the call to revolution while also disrupting mainstream accounts of human rights from a Global South vantage point? What is important to highlight is that the reformist strand of TWAIL scholarship operates alongside the revolutionary strand of TWAIL as an epistemic and epistemological project.Footnote 36 I elaborate on this aspect in the last segment of the essay.
Since international law and human rights are determined by global power dynamics rooted in the liberal imperial perceptions of the “Other” as underdeveloped, primitive, barbaric and incomprehensible—there is an urgent need to articulate the non-liberal subject through frameworks outside the liberal imaginary, to affirm and empower the multitudes of liberalism’s “Others.” This turn to alternative epistemic registers does not simply mean a turn back to religion, narrowly understood, or misrepresented as belief in a transcendental reality, and which risks falling into cultural relativism and rigid orthodoxies.Footnote 37 At the same time, secularism cannot be held out as the antidote to such concerns, as it is now well established that secularism is deeply intertwined with religion and underpins the historical processes of colonialism and western modernity, including shaping international law and human rights.Footnote 38 In the effort to explore non-liberal philosophical spaces that move beyond the despair and rut wheels of the present moment, the turn entails understanding heterogeneous concepts of the subject, time and freedom that draw on or are tethered to alternative, non-liberal, metaphysical, and epistemological frameworks and philosophies. These include affective registers and imaginaries linked to the aesthetic, spiritual and/or sacred.Footnote 39
These challenging resolves rest at the core of Achille Mbembe’s Necropolitics and Saba Mahmood’s The Politics of Piety—two powerful critiques that have influenced scholarship across disciplines.
III. Necropolitics
Necropolitics (2019) is based on Cameroonian post-colonial theorist-philosopher Achille Mbembe’s influential essay with the same name published in the United States in January 2003, prior to the U.S. invasion of Iraq intended to punish a regime allegedly producing weapons of mass destruction (that did not exist) (Mbembe, p. 11).Footnote 40 In his 2019 work, Mbembe reframes sovereignty, arguing that it resides in the power and capacity to decide who lives and who dies (Mbembe, p. 65). He distinguishes this from traditional liberal sovereignty defined as the state’s absolute power to maintain law and order and protect life. His account of sovereignty is developed through the lens of colonial violence, slavery, and racism, and the power over life and death.Footnote 41 In this account, the capacity to reason is central in determining who is accorded protection and who is not. The fully developed subject is the one capable of reasoning, self-representation, self-understanding, and self-consciousness in the public sphere and is distinct from the unreasoning subject, who functions through impulses, fantasy, and passion (Mbembe, p. 67).
This power is violently wielded, and enables the right to murder, maim, displace, and destroy populations deemed unworthy, superfluous, and disposable. The deployment of such power is what Mbembe defines as necropolitics: a form of violence that infiltrates all aspects of human life, from the intimate to the global (Mbembe, p. 6). Sovereignty organizes around protecting itself and profiting from the individual and collective death of its “Other.” Mbembe analyzes the ordinary violence that produces, manipulates, and reinforces the line between the visible/valid subject, and erased/invalid subject (Mbembe, pp. 42–43). This necropolitical divide is racial, religious, and civilizational, operating through a rigid separation between “us” and “them,” justifying the brutal violence that seems outside of law but is constitutive of it, and enabling the expansion of the necropolitical legal apparatus and coercive structures by which to manage the “terrifying object.”Footnote 42
The operations of necropolitics are delineated through six chapters. Chapters 1 and 2 demonstrate how liberal democracies are constructed through the founding violence of slavery, colonialism, racial dispossession, exploitation, and extermination. Chapter 3, the anchor of the book, is based on Mbembe’s 2003 essay that elaborates on the concept of necropolitics and the politics of death. Chapter 4 deals with necropolitics as the norm of modern liberal democracies, discussing violence exported globally in the guise of democracy and rule-of-law projects, advanced partly by the military-industrial complex and market interventions. Chapters 5 and 6 engage with the philosophical/political idea of liberal humanism and how it is molded by race-making and sovereignty.
Mbembe’s arguments are influenced by critical theorists, notably Foucault (biopower) and Fanon (racism/the “Other”). Foucault sets out how the right to life is defined by the sovereign power invested with the right to kill; biopower is “that domain of life over which power has asserted control” (Mbembe, p. 66). Unlike Foucault, who links biopower to the state’s juridical structure, Fanon insists on the centrality of colonialism and race in the constitution and denial of subjectivity of those discarded or extinguished. Mbembe elaborates on how this colonial framing of the racial “Other” produced “living dead” (non-)subjects, marginalized, controlled, and subject to structural, material, physical, and epistemic violence. Their expendable lives were perpetually threatened by extermination, control, and relegation to colonial concentration camps (Mbembe, pp. 123, 126). This core differentiation between the living and the living dead enables violence and torture of the “Other” by the living, in terms of the hierarchy of the subject set out earlier.Footnote 43
Mbembe elaborates on the relationship between race-making and sovereign power historically in the contexts of slavery and colonial wars, and in the current contexts of borders, fiscal enclaves, mass incarcerations, war, and policing, Palestine being the paradigmatic example. He links race to capitalism through slavery, demonstrating how race is a part of the limitless expansion of capitalism, enabling the “planetarization of apartheid” (Mbembe, p. 180). Capitalism converts blackness into an exchangeable commodity, echoing Fanon’s statement that “the black is not a man.”Footnote 44 While the captive “Other” body was once limited to the profiteering realms of the colonial slave trade and New World plantation economies, necropolitics has expanded under neoliberalism. In this context, the production of racial subjects into a broader subaltern category, where specific populations with or without statehood, and “Other” migrants, refugees and asylum seekers, are abjected, abused, and treated as disposable.
Mbembe argues that the necropolitical constitution/annihilation of the “Other” to secure the life of the legitimate (liberal) citizen-subject is now not only part of what constitutes humanity; it is the very definition of humanity (Mbembe, pp. 160–63). If inhumanity is constitutive of the human, there is no bottom or boundary, no crisis deep enough to draw a line that inhumanity cannot cross.
Necropolitics was recognized as a major contribution to critical race and post-colonial scholarship. Mbembe brought into crisis the dominant claims of sovereignty as centering life and the protection of life, exposing instead its role in enabling death. His concept of necropolitics has influenced a broad range of critical international legal scholarship, including TWAIL and scholarship aligned with TWAIL.Footnote 45 While necropolitics is crucial for understanding responses to the “Other” in human rights, it also asks how affected (non-)subjects might escape their pervasive necropolitical reality. Critiques focus on Mbembe’s overwhelming emphasis on the living dead, arguing it leaves little room for the articulation of agency, particularly resistance to disposability and death-worlds in everyday life.Footnote 46 The critique points to Mbembe’s failure to articulate a robust alternative position that moves away from death and despair toward a more productive alternative subjectivity.Footnote 47 However, Mbembe does not seek to retreat into a space of despair and withdraw from political engagement. Toward the end of Necropolitics he proposes the “ethics of the passerby” as an alternative way to understand the human (Mbembe, pp. 184–89). This concept is based on the idea that every claim to subjectivity exists only in and through its relation to others rather than at a distance from them.Footnote 48 It is a concept that is directed toward the will to care rather than kill; the will to engage the “Other” rather than to sever all relationships (Mbembe, p. 107). Through this concept, he seeks to chart a path from violence against others toward an engagement with others, to forge new beings through “relation” rather than indifference, and collapse the distinction between the human and non-human (Mbembe, p. 188). It is difficult to decipher the proposal’s meaning through the thorny thicket of Mbembe’s prose and with little elaboration in the book’s brief conclusion.
Mbembe’s broader political project, evident in his larger oeuvre, elaborates on African alterity and inscriptions of selfhood, delinking the “Other” from Western liberal individualism and humanism. This subject is read within a distinctive “African philosophy” that emerges at the intersection between formal religious and informal indigenous beliefs/cultural practices, and the post-colonial human condition.Footnote 49 The African subject/”Other” is vested with substance when embedded within another—non-Western—worldview or alternative epistemology, including faith. Mbembe acknowledges the important role of religion in his own life and how religion, religious practices and spiritualities are woven into Africans’ daily lives. He views religion as a constant presence, but does not define it nor address its potential to also “Other.”Footnote 50
While his response needs further fleshing out, there are two discernible claims he makes in his turn to religion/African philosophy. First, he sees religion as a means of reclaiming moral identity and building resilience amidst abjection, emphasizing the importance of viewing the larger context to render the critique of religion politically fruitful while also seriously considering religion itself as critique of the political.Footnote 51 Second, he indicates that in “African philosophy,” the subject is not a stable entity; there remains a tenuous boundary between subject and object, as well as between African metaphysics and animism: “in ancient African thinking, the human person is a compound of multiple living entities. It is not self-generating.”Footnote 52 This reading does not advocate for an essentialist “return” to the modes of nativism entrenched in patriarchal authority and cultural orthodoxy that supposedly render the subject authentically “African.”Footnote 53
Further elaboration of Mbembe’s proposal is required. However, what is clear is that his enumerations of non-liberal subjectivity remain anchored in Fanon’s fundamental assertion that Europe no longer harbors all the answers or cures:
If such thinking is to be articulated, it is further to be recognized that Europe, which has given so much to the world and taken so much in return, often by force and by ruse, is no longer the world’s center of gravity. No longer is Europe that place over there to where we must go to find the solutions to the questions we have posed over here. It is no longer the pharmacy of the world. (Mbembe, p. 188.)
Like Fanon who argues in favor of a complete rejection of the liberal subject and the embrace of a new [hu]man, Mbembe’s analysis points in the direction of a new self or subject that is delinked from European values and the violence they engender, a direction that requires further fleshing out and elaboration.Footnote 54
IV. The Politics of Piety
Saba Mahmood’s The Politics of Piety: The Islamic Revival and the Feminist Subject (2004) [hereinafter Piety], a ground-breaking study by the distinguished post-colonial feminist anthropologist/critical theorist originally from Pakistan, culminates her interdisciplinary scholarship on gender, religion, human rights, ethics, and secularism. All these themes coalesce in Piety, a micro-ethnographic analysis of veiling practices amongst the revivalist movement (da’wa) of Muslim women that emerged in Cairo in the 1990s. This movement was part of Egypt’s larger Islamic revival, occurring during a period of increasing secularization and economic liberalization driven by wealth production, material consumption and the ideology of profit (Mahmood, p. 66). From 1995–1997, Mahmood traced the pursuits of pious Salafi Muslim women from diverse economic backgrounds affiliated with three Cairo mosques. Over the course of Piety’s five chapters, she questions the dominant constructions of feminist agency, focusing on the self-empowerment expressed by the participants in her study, describing their ability to flourish despite/within orthodox patriarchal constraints, and in relation to the wider ongoing transformations in material, social and political fields (Mahmood, p. 168).
Piety builds on post-colonial feminist scholarship, critiquing feminist approaches to the veiled woman specifically and Islam more generally.Footnote 55 Opposition to the veil (hijab, niqab, burqa, etc.), reinforces a specific liberal projection of the legitimate female subject: individuated, self-willed, sexually autonomous, and crucially, unveiled.Footnote 56 Mahmood acknowledges the importance of ongoing feminist scholarship on women’s agency, especially anti-imperial and leftist projects that challenge Western stereotypes. At the same time, she argues that the subjectivity of this community of women cannot be understood through post-structuralist feminist analytical frameworks, which invariably locate agency in modes of resistance to, subversion or overt defiance to dominant norms or oppressive structures (Mahmood, pp. 14, 27). She specifically engages Judith Butler’s concept of performativity arguing that it is insufficient for understanding the subjectivity of the veiled woman. Performativity continues to understand agency in terms of resistance to, or subversion of, dominant norms. While it allows for the subversion of norms through repetition and potentially altering them, it remains within an agonistic model where norms are either confirmed or subverted. These frameworks relying on liberal secular notions of autonomy and agency, often fail to understand modes of selfhood/being, such as those of the women in the piety movement, who may be “socially, ethically, or politically indifferent to … opposing hegemonic norms” (Mahmood, p. 9).
Piety demonstrates how the mosque women’s practices center on faith prescriptions and faith-derived ethical sensibilities (Mahmood, chs. 2, 4). Viewed through their piety, they are knowledge-producing and world-making subjects not necessarily informed by, interested in, or connected to secular liberal doctrine or apparatus. The mosque women aim to embed obligations in daily life through community interaction, scripture reading, performing Islamic duties, and observing Islamic modes of sociality (Mahmood, pp. 47–48). Mahmood argues that this piety movement cannot be read as a challenge to patriarchal structures or gender segregation, as such a reading would reinstate the liberal schema of the autonomous, and thus only valid, subject. Instead, she examines the kind of agency that is skillfully created within and through a pious lifestyle by women who choose to inhabit existing religious norms (Mahmood, p. 168). Adherents engage in self-making through the prescriptive parameters of Islam, and their act of veiling is a direct, public, spiritual expression of autonomy/agency—one that signifies an expanded rather than constricted sense of self (Mahmood, pp. 120–21, 149).
Mahmood’s intention is to present complex “conceptions of self, moral agency, and politics that undergird the practices of this non-liberal movement, in order to come to an understanding of the historical projects that animate it” (Mahmood, p. 5). The mosque movement does not challenge the deep fusion of religion and state in Egypt; nor confront the existent political order; nor seek to abide by strict Shari’a law (and hence is distinct from the militant Islamist agenda directed at and opposed to the secular aspects of the state) (Mahmood, p. 47).Footnote 57 This movement does not consciously challenge prevalent version/s of liberal secularism in the Egyptian context, or question the liberal demarcation of society into public and private spheres with religion sequestered into the private.Footnote 58 Mahmood delinks this articulation of faith from the politics of identity central to rights claims and political representation pursued by liberal feminists through direct engagement with the state and juridical processes (Mahmood, p. 193).
Her account partly draws on Foucault’s analysis of the technologies of the self. He describes the methods and practices individuals consciously use on themselves to shape their thoughts, conduct, and ways of being, willingly adopted to attain happiness, purity, wisdom, or even immortality. She explores piety as an affirmative practice of self-formation, and self-discipline, rather than resistance. The veil is a daily, conscious practice intended to cultivate virtues of piety.
Mahmood’s analysis undercuts liberal assumptions that non-Western “Other” women are coerced by her faith/tradition or that their practices are subordinating. This assumption gained impetus post-9/11, where Western feminists joined liberal democratic governments in their excoriations of Islamic culture, including veiling. As Mahmood argues, normative liberal feminist politics invariably regards the veil as a primitive practice and reiterates dominant liberal tropes of Islam as invariably fundamentalist and violent toward Muslim women (Mahmood, p. 195). Even when institutional frameworks have been supportive of women’s rights to wear the veil, the disdain for the practice remains evident. For example, in October 2018, the Human Rights Committee declared the French ban on the burqa violated a woman’s right to religious freedom, while emphatically stating that their finding was not an endorsement of a custom, which “many on the Committee … regard as a form of oppression [against] women.”Footnote 59 This reductive approach implies that veiling is a tradition from which these women must be rescued.
Piety was simultaneously disconcerting and productive in creating space for grounded conversations between the Global North and South; the liberal self and non-liberal “Other.” The book met with skepticism and opposition, including from Pakistani feminists.Footnote 60 Objections included accusations that Mahmood’s refusal to condemn a practice based on patriarchal custom and gender violence indicated indifference to or complicity in gender oppression. Leftist scholars and activists accused her of betraying secularism, pointing out that orthodox and conservative voices could appropriate her arguments for their own inflexible agendas. Some of this hostility may have stemmed from Mahmood’s rejection of a prescriptive feminism reflexively primed to denounce systems that cannot be accommodated within the liberal framework (Mahmood, p. 36). She highlights how post-colonial, anti-imperial feminist scholars have exposed the ethnocentric assumptions behind imperial feminism historically and behind modern essentialist notions of “global sisterhood,” both strands colluding in the erasure, flattening and marginalization of difference.Footnote 61
Crucially, Mahmood’s analysis neither unequivocally defends nor endorses veiling. Instead, her views aim to push feminists to confront their own limits, insecurities and anxieties while navigating liberal feminist discourses producing new scholarship around the “Other” female subject. This is evident in the unsettling questions that arose from the author’s self-scrutiny:
What do we mean when we as feminists say that gender equality is the central principle of our analysis and politics? How does my enmeshment within the thick texture of my informants’ lives affect my openness to this question? Are we willing to countenance the sometimes violent task of remaking sensibilities, life worlds, and attachments so that women of the kind I worked with may be taught to value the principle of “freedom?” Furthermore, does a commitment to the ideal of equality in our own lives endow us with the capacity to know that this ideal captures what is or should be fulfilling for everyone else? If it does not, as is surely the case, then I think we need to rethink, with far more humility than we are accustomed to, what feminist politics really means. (Mahmood, p. 38.)
Piety is a unique invitation to critical progressive scholars, including TWAIL scholars, to confront the parochialism, entitlement, and intellectual privilege which may be overtly or subtly conditioning our perspectives. Mahmood’s analysis powerfully resonates amongst those exploring the revisionary theorization of the “Other” subject in TWAIL scholarship. It directs the postcolonial scholar toward a new epistemic orbit that offers space to stretch, flex and breathe, rather than to continue endless circumambulations within the fishbowl of the liberal imaginary.
V. Wars Against “Others”
Mbembe’s necropolitics and Mahmood’s piety offer dynamic analytical frameworks for urgently unmasking, rethinking, and reworking of the concept of human rights/the subject of human rights imposed by the liberal order. TWAIL draws on both scholars to highlight the hubris, overt and covert imperialism, exceptionalism, entitlement, and violence embedded within the human rights regime, partly structured by wars against, exclusion, or subjugation of the “Other.” Two contemporary instances from the Global South exemplify this structuring: Palestine and Afghanistan.
A. Palestine
The unconscionable decimation of Palestine and its people, offers the starkest contemporary example of this structuring. Settler colonialism, occupation and apartheid in Palestine have been paradigmatic global issues for TWAIL and post-colonial scholars.Footnote 62 The naked brutality of necropolitics explicitly surfaces in Israel’s genocide in Gaza, justified by self-defense, the protection of democracy, and anti-terrorism.Footnote 63 The occupation of Palestine has for decades been implemented through necropower (Mbembe, p. 80). The necropolitical extermination of Palestine and Palestinians inevitably results from violence entrenched in human rights and the international legal order, advanced in and through what Jothie Rajah describes as necropolitical law that justifies violence.Footnote 64
While Palestine’s suffering, starvation and annihilation has received enormous attention from legal and political institutions—more than other ongoing genocides—this attention has not stopped the genocide. One reason is that the interventions emerge from the same problematic space discussed earlier. For TWAIL scholars the question is not why human rights and international legal institutions are ineffective against pervasive necropolitical violence toward non-liberal “Others,” by the West as well as post-colonial states, but how this treatment becomes legally justifiable and rationalized by liberal perpetrators and their allies as politically, morally, and economically necessary?Footnote 65 This is partly explained by how the “Other” has been historically perceived and how this perception continues to inform the hierarchy of the subject that structures human rights, a structure that has also at times been seized on by post-colonial states, their elites, majority ethnic and religious groups to advance their own interests.Footnote 66
Necropolitical techniques, for managing what is perceived threatening Palestinian object include violence; war; militarized assault and settler-colonial trespass/aggression; slow sadism of micro-aggressions; territorial fragmentation; segregation under legal apartheid; fiscal enclave control; bureaucratic rules; mandatory passes; checkpoints and curtailed mobility; arbitrary searches; ubiquitous armed patrolling; random arrests and incarceration; habitual abuse, interrogation, abjection, humiliation, and intentional starvation.Footnote 67 These methods illustrate Israel’s illegal presence and grip on Palestinian territory and its population, fostering a suffocating carceral ethos of paranoia, suspicion, intractable enmity, and pervasive menace that abjects and pulverizes daily life. These strategies manage, organize, and contain the terrifying Palestinian object, expanding the definition of “terrorist” through race, Islamophobia, and the West’s futile “War on Terror” that itself generates terror and commits atrocities in order to protect the rights and freedoms of the liberal/legitimate human from its terrifying subhuman “Others.”
Mbembe’s necropolitics is based on an understanding of sovereignty that involves the power to determine who can be killed/excluded/subjugated and who is entitled to protection, permitted to survive/breathe/exist. In Israel’s war on Palestine, UN mechanisms have helplessly highlighted the brutal destruction of the health care system,Footnote 68 genocide,Footnote 69 starvation,Footnote 70 scholasticide,Footnote 71 and the suppression of media and free speech.Footnote 72 Concepts like “human shields” justify killing people, rendering even incubated babies, nurses, doctors, and journalists legitimate targets.Footnote 73 Israel’s shelling and bombing of Palestinian cities and towns, safe zones, humanitarian corridors, food distribution centers, and refugee camps, coupled with the blocking of humanitarian relief and closing aid agencies (categorized as “terrorist organizations”), ensures a devastated population remains ravaged, while continuing to be cast as a terrifying object ever threatening to the liberal order.
Gaza has become a necropolis, reduced to an uninhabitable topography of rubble, beneath which lie the bodies of tens of thousands of innocent civilians.Footnote 74 Survivors face the terrifying prospect of en masse forced expulsion from Palestine, their futures fully determined by Israel and the United States.Footnote 75 No consensus exists among liberal democratic states on Israel’s true and legitimate target in this gruesome war of “self-defense.” Does the target include the mass of starving or murdered Palestinian men, women, and children? Taking the logic to its limit—will Israel, armed by its ally, the United States, “succeed” in its necropolitical agenda to “liberate” Palestinians into “better” lives through ethnic cleansing and forced resettlement?Footnote 76
B. Afghanistan
Afghanistan, another of the West’s war against “Others,” also explicitly demonstrates the subject’s hierarchy, particularly concerning the veil. TWAIL scholars argue that liberal feminist interventions’ pervasive representation of Muslim women as victims, rooted in carceral logics and sexual violence, jeopardizes feminist emancipatory politics.Footnote 77 Feminist legal advocacy built on absolutist tropes of Islam as despotic and Muslim women as perennial victims of diverse “Other” patriarchies, pervades campaigns for gender equality and against gender apartheid, countering sexual violence, and women, peace, and security.Footnote 78 Such positions delegitimize and often eradicate her agency, reflexively casting her as always censored or silent, sympathetic to Islamic jihad (hence suspect), or victimized by her culture and religion.
The 2001 U.S. military invasion of Afghanistan was facilitated by the tools of gender equality, global campaigns against sexual violence, and UN Security Council resolutions on women, peace, and security. Women’s rights were co-opted into the “War on Terror” partly to veneer the invasion’s questionable legality. This logic fed into the increased recognition of “women’s rights as human rights” within international law, gradually narrowing its focus to combating sexual violence in conflict zones, where military intervention strategies aligned with criminal law and security.
Feminism, no stranger to the project of empire building, supported the invasion specifically to rescue Afghan women from violent and misogynist Taliban rule, including its burqa mandates. The formal processes of international law and military occupation marched in lockstep with feminist activism, including what Vasuki Nesiah describes as “international conflict feminism” (ICF) where the liberation of the “Other” woman as abject victim entails rescuing her from the “Other” man, even if it involves eliminating him. War was justified as necessary for bringing Afghans peace, economic development and infrastructure reform. This public crusade to liberate Afghan women through women’s human rights obscured the United States’ deep geopolitical complicity in creating abject living conditions for Afghans, including Afghan women, and its destructive impact on marginalized groups and dissident voices.
Groups such as the Afghanistan-based Revolutionary Association of Women in Afghanistan (RAWA) celebrated the 2021 U.S. withdrawal while also being aware of the risks for Afghan women from the restoration of the Taliban regime. Nevertheless, as Nesiah states, for RAWA this signaled a moment to formulate a new justice-seeking movement capable of maneuvering the space between Islamic fundamentalism and liberal imperialism.Footnote 79 This approach resonates with TWAIL feminism, drawing attention to histories and background norms that structure international legal interventions and women’s human rights advocacy, contributing to an unjust and inequitable legal order that is displaced onto a Global North/Global South divide. This includes the occlusion of war crimes by Western troops and the brutality of the U.S. military bombing campaign waged against “terrorists” to liberate women. Little mention was made of how this mass assault severely restricted the delivery of food aid and thus intensified the already present widespread famine resulting from years of drought in Afghanistan and ignored pleas from women’s groups on the ground to stop the bombing.Footnote 80 In August 2021, after the chaotic and dramatic withdrawal of U.S.-led coalition forces, the Taliban regime was back in full force, as was the burqa—and the legacy of violence continues into the present.
Foregrounding culture as the sole cause for violence against women invites ahistorical interventions. This singularity informs current efforts to codify “gender apartheid” as a crime against humanity in the draft articles on the prevention and punishment crimes against human rights.Footnote 81 The call is not new, emerging in 1996 when the U.S.-based Feminist Majority Foundation first drew attention to the erosion of women’s rights in Afghanistan through its “Campaign to Stop Gender Apartheid in Afghanistan.”Footnote 82 The campaign was subject to feminist critique for its reproduction of the trope of the victimized Muslim woman and the primitive Muslim man.Footnote 83
The 1996 call and its post-2021 pursuit squarely attribute Afghan women’s problems to the Taliban’s egregious approach to issues of gender. While the campaign draws attention to gender discrimination, violence against women, and gender injustice under the Taliban regime, it does so within a historical and racist frameworks that accommodate the triumphalist “benevolence” of U.S. imperialism and militarism. Instead of reflecting on how feminist interventions may have been complicit in the harms to various groups, including Afghan women, over decades of occupation and conflict, the call for recognition of gender apartheid remains embedded in a form of imperial feminism. It pursues gender equality and women’s rights protection alongside/within the project of empire building, drawing on the same tropes about Muslim women that informed the logic of colonialism. How can it be claimed that the United States and its allies “succeeded” in their necropolitical invasion of Afghanistan in 2001, directed at toppling the Taliban regime in response to the 9/11 attacks—and, as a part of “mission creep,” achieved the desired emancipation of Afghan women?
Combatting violence against women, establishing it as a crime and punishing perpetrators are undoubtedly important. However, such efforts alone cannot be with effect if the “Others” subjectivity is not engaged. Such efforts constantly assumes that veiled women cannot represent themselves, they must be represented, and their major central issue is freedom from the veil. TWAIL feminist critiques transcend prevailing liberal feminist accounts of agency that reproduce women in the Third World as victims, awaiting rescue by their First World feminist sisters, exposing the racial, imperial, and ethnocentric narratives that configure the “Other” woman (especially the veiled Muslim woman) as left behind in the civilizational march toward modernity.Footnote 84 Part of the proposed solution envisages her incorporation into liberal rights discourse—the teleological destiny of liberal emancipation. The discussion on Afghanistan illustrates how Muslim women’s suffering is often mobilized for agendas unrelated to their rights and empowerment. In the process, this proposed solution blocks any consideration of non-liberal concepts of female agency as presented by Mahmood, or consideration of other feminist trajectories.
VI. Re-encountering the “Other”: From Epistemic Hubris to Epistemic Humility
After exposing human rights and international law as being complicit in exclusion, injustice, racial capitalism, escalation of war crimes, and epistemic violence, there remain disparate positions within TWAIL on whether, how, and when to engage with international law and human rights and the extent of their utility. As stated, TWAIL is both a critical and a revolutionary project. As a critical project, TWAIL has exposed how rights operate as a governance project ordering the lives of “Other” peoples, and revealed the realities of imperial violence and power, even when these are hidden in plain sight. It draws attention to the importance of critical witnessing and the ethics of remembering and refusing denial or erasure.Footnote 85 However, there remain differences within TWAIL on how to proceed beyond the critique that are briefly mapped out in this section. The critique itself has not embedded desired alternatives within established international law/rights discourse or transformed these in any lasting way.
Given the critiques, starkly evident in the context of the Palestinian genocide, a perceptible strand of TWAIL scholarship advocates for renouncing/dismantling the anachronistic and arthritic international legal order.Footnote 86 This is echoed by the diverse supporters of those populations worldwide who have directly experienced the insatiable violence and cruelty enabled by this order—those brutalized, rather than “emancipated,” by international law and human rights in collusion with liberal geopolitical and economic forces. These disenfranchised populations and their privileged supporters deem current engagement futile: “What has happened, for all the future bloodshed it will prompt, will be remembered as the moment millions of people looked at the West, the rules-based order, the shell of modern liberalism and the capitalistic thinking it serves and said: I want nothing to do with this.”Footnote 87
Yet, such rebellious calls risk indistinguishability from similar ones made by the illiberal imperialistic agents and constellations who have always been skeptical about these systems.Footnote 88 They perceive them as either a generic leftist conspiracy, and/or biased against specific countries such as Israel or specific groups such as far-right ethnonationalists and supremacists. Amongst Trump’s first presidential acts was to withdraw from the Human Rights Council, impose sanctions on the International Criminal Court (ICC), make funding for international organizations partly conditional on the removal of diversity, equity, and inclusion programs, and cut reporting of human rights abuses by foreign governments from the State Department’s annual human rights reports. Similarly, Israel’s UN ambassador accused the United Nations General Assembly (UNGA) of being “Jew hating,” shredding a copy of the UN charter in the chamber just before their vote on a resolution granting Palestine full membership.Footnote 89 Given these aggressive demonstrations rejecting the international legal order on grounds of left wing bias, bigotry, “wokeism,” or appeasement of minorities, ceding any terrain of international law generally and human rights more specifically threatens a significant—and significantly unequal—mode of global relationship that, for all its fractures, and freezings and failings, remains important conceptually, materially, normatively, and epistemically.
For example, despite these failings, Palestinians have been at the forefront of international law and human rights, actively engaging a host of UN platforms.Footnote 90 These include the UNGA, ICC, the International Court of Justice (ICJ), Special Procedures, and the use of special rapporteur documentation. These engagements are not naïve, nor do they expect justice. These engagements are not directed at winning or losing. Instead, they aim to generate debate and awareness, while simultaneously archiving the necropolitical atrocities and collecting testimonials and evidence of genocide. These public engagements are strategically important, their performance directed at a global audience, rather than those bureaucrats, technocrats and mainstream human rights groups, whose efforts remain focused on humanitarian pause and/or ceasefire/peace. Such efforts sustain the “rot” within by continuing to operate within a liberal legal framework structurally unable to confront settler colonialism and apartheid.Footnote 91 Palestinian engagements do not signify belief in the legal and ethical credibility of the international legal order or human rights as an emancipatory project. Rather, they recognize the immense risks of ceding the terrain of human rights, and living within the problem, they must navigate the path from within the exigencies of the current crisis. These actions also amplify subaltern voices, compelling engagement with them and their experience of the iniquitous, discriminatory foundations of international law and human rights.
These efforts work alongside TWAIL’s transformative desires to create space for subaltern epistemologies.Footnote 92 They operate alongside recuperating and rethinking neglected Global South texts, entities, events, subject formations, cultures, and knowledge paradigms that serve as an epistemological challenge to the liberal illusion of “Others” as “historyless,” agentless, and awaiting “rescue” from themselves by the liberal white savior.Footnote 93 As an epistemological project, TWAIL sources political possibilities from non-liberal spaces and registers, diffracting liberal understandings of hegemonic human rights and international law through the prism of the Global South/subaltern alterity.Footnote 94 Such scholarship seeks to inscribe new theorizations of the “legal” and reorient engagement with international legal institutions. This radical re-pivoting endows TWAIL with visibility and substance, underscoring its revolutionary and transformative potential as a political project that, without aligning with illiberal imperialism or cultural relativism, challenges the liberal imperialistic scaffolding and agendas of human rights and international law. This may entail turning toward alternative philosophical registers, that may include for example faith and/or Indigenous life-worlds.
The distinct contribution of TWAIL’s revolutionary vision lies in seeing and/or re-encountering the “Other” as a knowledge-producing subject rather than as an object of knowledge, essential for an epistemic shift. Achieving this vision requires a radical shift from liberal epistemic hubris to epistemic humility. Epistemic humility involves reflecting on the limits of the human rights project as exposed by the critiques; it also involves moving beyond simply accommodating or remaining agonistic toward alternative ways of living and being in the world. It requires a conscious willingness to engage meaningfully with other systems of knowledge, avoiding exoticizing, belittling or excluding them. It invites more empathetic dialogue, intimate exploration of alternative and distinct life-worlds, remaining open to the possibility of human rights being displaced as the fulcrum of emancipatory politics, while not surrendering this terrain as an arena of power.
VII. Conclusions: The Redemptive Insistence/Persistence/Resistance of “Other” Selfhood/s
Moving beyond necropolitics and discursively recuperating the version/s of the non-liberal “Other” within the liberal imperial imaginary involves rejecting the (non-)subject’s violent inscription by colonizers, slave owners, racial capitalists, imperial feminists, and their diverse agents and proxies. This move involves condemning the violent logic that underpins their projects of discrimination and domination and through which as Césaire writes “for centuries Europe has force-fed us with lies and bloated us with pestilence.”Footnote 95 However, this condemnation need not lead to a theoretical cul-de-sac. One way to take the argument forward is to delineate modes of selfhood linked to non-liberal (not illiberal) epistemes. Mbembe, referencing Césaire, advocates moving humanity beyond colonialism/Europe’s unconscionable duplicity, which structures its ongoing “civilizing mission”—a mission based on liberal ideologies, including human rights discourses, and achieved through the violent subjugation and exploitation of “Others” and their territories for power and profit. Such a structure is incapable of producing a civilized humanity, as the intent is morally and spiritually indefensible.Footnote 96 Mahmood, referencing the mosque women of Cairo, brings to crisis conceptions of agency and foregrounds the life-worlds of the “Other” or non-liberal subject foreclosed by positions that view veiling exclusively as subordination and from which women must be rescued.
Acknowledging that the established terrain of rights, gained with so much passion, sacrifice and effort, is not easily relinquished, or is relinquished at great risk, both authors, each turning on a particular non-liberal pivot, urge us to ask: What feasible emancipatory alternative exists if the “Other” subject in human rights is structured by genealogies and economies of racism? How do liberal rights discourses empathetically engage with “Other” practices of self-making that are enmeshed with patriarchal edicts and cultural orthodoxies considered regressive by the liberal establishment?
As a revolutionary project, TWAIL is unsettling and confrontational. It raises the fear of epistemic collapse, a gradual or sudden erosion, degradation, rupture, or perhaps even sweeping loss of familiar embedded entitlements and privileges. It triggers what I have elsewhere termed as “epistemic freefall.”Footnote 97 This anxiety generates several urgent questions. Does including diverse “Other” subjectivities in international law and human rights betray the exalted liberal philosophy of humanism, the empowering liberal energy of rights, or the liberal ethos of individualism? Does such inclusion demand uncritical acceptance of Third World epistemologies such as Afrocentrism, Islam, and others which, like all epistemologies, also carry problematic mandates?
Without doubt, human rights and the international legal order are today in profound crisis; and most non-liberal epistemologies presented as options to the inflexible frameworks of positivist law remain eclipsed or incomprehensible. This essay highlights TWAIL’s relevance as an epistemological inquiry countering the hubris of Western legal theory, suggesting that liberal scholars seriously consider diverse non-liberal architectures of subject formation, and adopt an inclusive approach toward constellations of “Other” knowledge and self-knowledge. TWAIL raises the epistemic challenge of working with the implications of an interdisciplinary critique that implacably points to the stark ideological crisis in human rights and international law. It invites us to look at ourselves in both the liberal and “Other” mirror, and solicits our participation in the many non-liberal scripts, granular material truths, cultural topographies and rich life-worlds that anchor and nourish “Other” subjectivities. It calls on us to engage in this essential scholarly work without objectifying or dehumanizing the “Other” or being complicit, overtly or covertly, in “Other” demonization, subjugation, restriction or annihilation.
Open access
