In Exodus, it is said to Yahweh: ‘In your faithful love you led out the people you had redeemed; in your strength you have guided them to your holy pastures.’ So, in contrast with the power exercised on the unity of a territory, pastoral power is exercised on a multiplicity on the move.Footnote 1
The most ‘secular’ of our political concepts – sovereignty and property – have found their sharpest articulations within a theological debate about justifying the authority human beings claim over each other. Footnote 2
1. Introduction
It is no secret that the early 1990s were a period of high expectations and hopes in the power of international law.Footnote 3 In the ‘post-Cold War’ moment, the dream of a ‘so-called’ rule-based international order that had been shackled by the bipolar stalemate was set free, under the wings of American hegemony.Footnote 4 While this ‘new world order’Footnote 5 is increasingly under siege nowadays,Footnote 6 it created lasting anxieties for the discipline. One salient issue has been the extraterritorial human rights obligations of states under international law.Footnote 7 While the exercise of powers (both executive or judicial) beyond the frontiers of the nation-state long predated the 1990s, this new age of ‘muscular humanitarianism’Footnote 8 and American unipolarityFootnote 9 created new challenges for the application – or lack thereof – of ‘humanity’s law’ in the interstices of Empire.Footnote 10 These challenges, of course, only grew when the age of global optimism collapsed in 2001,Footnote 11 giving rise to a time of legal black holes, endless exceptions, and the global war on terror.Footnote 12 This historical conjecture brought the question of limits and borders (both disciplinary and geographical) to the forefront.Footnote 13
Thus, in the last two decades, mainstream international law scholarship (MILS)Footnote 14 has set out to address these challenges from a doctrinal perspective. In this vein,Footnote 15 MILS has identified the rare situations in which international law may have an extra-ordinary reach. From state responsibility to the laws of war, from business and human rights to economic and social rights, each sub-regime of public international law has a series of (contested) rules and principles for extraterritorial application (Section 2.1). On the other end of the discipline, a diverse chorus of voices from critical, third world, and new(er) stream perspectives have highlighted that the MILS’s narratives fail to fully account for the role of Empire in the extraterritorial (and, for that matter, territorial) application of international law.Footnote 16 Absent from these two strands of literature, however, are any considerations on the religious origins of extraterritorial jurisdiction. While scholars of both strands are willing to concede that religion once played an important role in the past of jurisdictional practices, they do not follow the implications and consequences of this trajectory for our present (and future) discussions on extraterritoriality. For these two narratives, the state (and even the Empire, in the Third World Approaches to International Law [TWAIL] tradition) appears as a secularized cold monster.Footnote 17 But, as our contemporary resurgence of religion shows,Footnote 18 perhaps our dreams of ‘modern secularism’ were not much more than wishful thinking.Footnote 19 Indeed, it seems to be more accurate to say that religion never went away.
Hence, in this article, I set out to complement the critical perspective by highlighting the importance of the Christian pastoral in our contemporary imagination of the exercise of power over mobile flocks rather than geographical borders.Footnote 20 If critical international lawyers are to understand the elusive mystery of contemporary global governance,Footnote 21 we ought to not only engage with the history of the state or of capitalism but also with the history of Christianity.Footnote 22 To do so, in what follows I will briefly review (Section 2) the narratives of extraterritoriality in international law, in both the MILS (Section 2.1) and new(er) Stream (Section 2.2) traditions. I will conclude that both (Section 2.3) reproduce a secularized understanding of jurisdiction in international law. To dispel this presumption, I will draw and contribute from (Section 3) the literature on post-secularism in, and beyond, international law. The diverse contributions of this field might enable us to rethink our assumptions about the secularized jurisdiction of international law.Footnote 23 With this in mind, I then proceed to (Section 4) trace a genealogy of jurisdiction as a technology of Christian authority, in which the office of the pastor has played a salient role. I conclude by arguing that (Section 5) the pastoral model of office still haunts our understanding of the discipline, especially when it comes to the imagination of boundless jurisdiction.
As Koskenniemi notes, ‘religion’ and ‘international law’ are themselves polysemic and disputed notions, which leaves ample ground for ambiguity and contestation when one attempts to engage between them. Importantly, he notes that both religion and international law could be seen as ideological systems, a set of norms or cultural practices, or an account of authoritative institutions.Footnote 24 I am particularly interested in understanding religion as a series of practices and technologies that we might call ‘jurisdictional’ rather than as a system of beliefs and rites a la Durkheim.Footnote 25 In fact, following Pahuja and Eslava or Benton, I am also interested in thinking of international law as a set of material and bureaucratic activities that occur in the everyday interactions between rival jurisdictions, and not only as an ideological and philosophical project of world-making.Footnote 26 If, as Cover argued, jurisdiction is nothing more (but also nothing less) than a particular narrative in which law grounds its ability to speak authoritatively on behalf of itself,Footnote 27 I conclude that both MILS and critical perspectives stand much to gain from a greater engagement with the pastoral technologies embedded in jurisdictional technologies of normative worldmaking. As Cover knew well, rituals and spiritual exercises have long been elements of the juris-generative spectacle required to make the law speak.Footnote 28
2. Narratives of Extraterritoriality in International Law
2.1 MILS – ‘primarily’ + ‘territorial’
Recent scholarship has shed light on the importance of framing in the creation of authoritative narratives – legal or otherwise.Footnote 29 When it comes to MILS on extraterritoriality, these approaches often follow a common narrative: ‘a series of rehearsed moves: defining extraterritoriality, identifying key cases and statutory backgrounds, and compartmentalizing its application into discrete legal contexts’.Footnote 30 Thus, in this genre, authors often start by defining jurisdiction as primarily territorial, framing extraterritorial jurisdiction as the exception.Footnote 31 Along these lines, the leading monographs are structured as both justifications and implementation guides of narrowly defined cases of extraterritorial application of human rights discourse.Footnote 32
Then, they proceed to analyse the few cases in which this unsurmountable contradiction might be resolved, by clarifying the limited grounds of which the exception becomes the rule. After all, they must face the Vienna Convention on the Law of Treaties (VCLT)’s clause that states that, unless a different intention is stated, a treaty must be understood to have territorial implications.Footnote 33 This usually leads to the jurisdictional clauses of human rights instruments, and the well-worn paths of the difference between jurisdiction and territory.Footnote 34 In his pioneer piece, for instance, Meron suggests that the International Covenant on Civil and Political Right (ICCPR)’s mention of jurisdiction or territory paved the road for the extraterritorial application of human rights norms in Haiti.Footnote 35 Ever since, it has become commonplace to echo Meron’s preoccupation for a restrictive territorial application without seriously challenging the ‘territorial presumption’.Footnote 36 Immediately after, MILS contribution often proceeds to clarify which are those cases of territory-less jurisdiction. Hathaway and others, just to cite a leading example, note the ‘remarkable degree of coherence and consistency’ of the ‘effective control test’,Footnote 37 as almost all international and domestic courts have almost every time upheld this standard.Footnote 38 Although this test was initially created by the International Court of Justice (ICJ) in its Nicaragua 1986 case to address questions of state responsibility, it has come to dominate the conversation on extraterritorial application of human rights law.Footnote 39 For this reason, MILS contributions spend a considerable amount of time clarifying the relationships between international human rights law (IHRL) and the regime of state responsibility, even if these two regimes feed into each other.Footnote 40
Although the initial judgments of the European Court of Human Rights (ECtHR) seemed to open the possibility for a wide margin of application for human rights extraterritorial obligations,Footnote 41 the controversial Bancović decision in 2001 effectively entrenched the effective control as the appropriate standard.Footnote 42 In this case, which dealt with the alleged human rights violations caused by NATO’s aerial campaign during the Yugoslav wars, the court initially shunned the possibility of applying the European Convention on Human Rights (ECHR) beyond the espace juridique of its contracting parties.Footnote 43 To do this, the Court – just like the MILS interventions – started by stressing that a state jurisdictional competence is ‘primarily territorial’.Footnote 44 Grounding its analysis on Article 31.3.c of the VCLT and the principle that the ECHR cannot be interpreted in a vacuum due to the need for systemic integration,Footnote 45 the Court argued that extraterritoriality can only be accepted in ‘exceptional cases’.Footnote 46 They reinforce this interpretation by delving also into the travaux préparatoires of the ECHR, which – considering the colonial fervour of its drafters – seems to prove the point.Footnote 47 While the plaintiffs in Bancović might seem naïve to contemporary spectators, it would be important to forget that this application was filed in a time of high hopes in the potential uses of international law to bring accountability for human rights violations. It attempted to be the equivalent of the Tadic judgment for IHRL.Footnote 48 While we now know that Serbia’s attempt to bring NATO to justice was systematically denied before the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICJ, and now the ECtHR.Footnote 49 At this exact same time, international lawyers celebrated the establishment of the International Criminal Court and the triumph of the movement against impunity.Footnote 50
What matters, at any rate, is that Bancović set the trend that would be later rehearsed and repeated by both MILS and the later judgments of international courts and tribunals: only extraordinary cases of effective control by a state could trigger the application of IHRL obligations (and, mutatis mutandis, the law of state responsibility).Footnote 51 It required ‘boots on the ground’, so to say, to engage international law.Footnote 52 This was later ratified (in a perhaps clearer manner) by the now-leading decisions of Al Skeini and Al-Jedda.Footnote 53 Whether it is effective control or the exercise of public powers, only in very limited circumstances might imperial power fall under the guise of the ECHR.Footnote 54 As Vandenhole concluded, ‘[t]he ECtHR has drifted somewhat between a spatial, personal, and checkpoint model, each of which tends to inhibit rather than to further extraterritorial jurisdiction beyond the exceptional’.Footnote 55
This trend was also reinforced by the ICJ in its advisory opinion on The Construction of a Wall (2004), its judgment on Democratic Republic of the Congo v. Uganda (2005), or even in the recent decision on the preliminary objections filed by Russia in its case against Ukraine.Footnote 56 A similar story might be told regarding litigation of law of nations claims under the Alien Tort Claims Act (ATCA) before American courts after the Supreme Court (re)enshrined a controversial presumption against extraterritoriality in Kiobel.Footnote 57 Unsurprisingly, the Inter-American Court of Human Rights has also adopted the effective control test, recently restating its relevance in its advisory opinion on the relationship between the environment and human rights.Footnote 58 In sum, MILS frames the issue of extraterritorial obligations as the exception, which are only triggered in cases of effective control (i.e, ‘boots on the ground’). Some of these scholarly interventions compare the nuances between particular courts, jurisdictions, or regimes of international law.Footnote 59 Others critically interrogate the pitfalls of ‘human rights imperialism’.Footnote 60 None of these works, however, truly challenges the presumption on territoriality.
2.2 New(er) streams: The visible hand of empire
On the other end of the discipline, voices along the ‘critical and socio-legal spectrum’Footnote 61 rise in arms against the assumption of territoriality. These emerging trends of scholarship led the editors of the recently published Oxford Handbook of Jurisdiction in International Law to conclude that ‘extraterritoriality is increasingly viewed as a starting point for the exercise for state jurisdiction, rather than as an exception’.Footnote 62 In their view, historical studies and theoretical interventions -especially of those whom they regard to be affiliated with the critical legal studies (CLS) movement – have complicated the ‘fairly ritualized account’ usually offered by MILS.Footnote 63 For these reasons, along with the doctrinal analysis, they have included special sections related to history and theory in their handbook.Footnote 64 In what follows, I will briefly review these rising cohorts of ‘socio-critical’ perspectives. Some of these authors are closely affiliated with the TWAIL movement.Footnote 65 Others are rather closer to the law and society movement and arrived at the issue of jurisdiction through the debates on legal pluralism.Footnote 66 Many of them were closely related to the New Approaches to International Law (NAIL) movement in the USFootnote 67 or the Critical Legal Conference in the UK.Footnote 68 Others are closer to the revival of Marxism, within and beyond international law.Footnote 69 In sum, I will attempt to group together a wide tent of approaches that one could call critical, that attempt to engage with postcolonial, feminist, post-structural, and post-Marxist thought to understand and deconstruct international law’s presumption of territoriality.Footnote 70
Perhaps their manifesto can be found in the (also recently published) edited volume The Extraterritoriality of Law.Footnote 71 By historicizing, politicizing, and theorizing jurisdiction, they show that the notion of ‘extra-territoriality’ seems to presume the natural and objective authority and legitimacy of state-centric territorial governance.Footnote 72 In contrast, they attempt to contextualize debates about extraterritoriality in the processes of ‘state-building, imperialist rivalry, and capitalist expansion’ in which they emerged, hoping to better understand their past legacies, present perils, and unstable futures.Footnote 73 Drawing from a wide array of insights from historians,Footnote 74 sociologists,Footnote 75 geographers,Footnote 76 and critical international relations scholars,Footnote 77 they show that the marriage between authority and territory is one of recent (and rather tenuous) origin, forged in the crucible of empire.
The first part of the volume is composed of theoretical contributions. In this vein, Haskell maps different narratives, highlighting that TWAIL perspectives turn ‘away from a Cartesian grid-like conception of the world to a new environment defined by collapsing time and space, with the human subject caught in dense, technologically enhanced webs of information’.Footnote 78 This echoes Valverde’s invitation to understand jurisdictional practices as techniques of spatial and temporal governance.Footnote 79 In her chapter, Seck argues that we should take this critique a step further, to engage the critique of extraterritoriality with the ‘seductive’ (but dangerous) concept of the Anthropocene.Footnote 80 While this notion might be elusive (at its best) and politically problematic (at its worst), it does give us grounds to de-centre the ‘human subject’.Footnote 81 Finally, Sziegeti concludes this part by arguing that it may be futile to distinguish the ‘extra’ from the ‘territorial’.Footnote 82 As he aptly shows, while MILS often narrated the pre-Second World War epoch as the ‘era of strict territoriality’, they conveniently forget to mention that these were also the times of large colonial empires and extraterritorial courts.Footnote 83 The primacy of the ‘territorial’ only hides the long hand of Empire.
Sziegeti’s chapter serves nicely as a transition for the second part of the book, which encompasses a series of case studies related to the historical emergence of extraterritoriality. Drawing from previous historical analyses,Footnote 84 these chapters conclude that extraterritoriality emerged in the context of uneven development, imperial expansion, and capital accumulation.Footnote 85 In fact, they show that the ‘dynamic of difference’ and the discourse of civilization led to the division of the globe into fuzzy world-systems of civilized, semi-civilized, and barbaric peoples.Footnote 86 Even if at the core the procedures and techniques of governance were slowly linked to ‘territory’,Footnote 87 at the margins in fact what occurred was a brutal encounter between rival jurisdictional that competed until there were no longer ‘white spaces on a map’.Footnote 88 Thus, those peoples that were deemed barbaric were swallowed by imperial polities, while semi-civilized peoples attempted to walk the tightrope of state-building under the white man’s burden.Footnote 89 We must, however, resist seeing this as a linear process of ‘universalization’ of the state-form and the jus publicum Europaeum.Footnote 90 Instead, the new(er) stream convincingly argues that private companies, imperial bureaucrats, mestizo and creole local elites, and bandits – both stationary and roving – played their role in the assembling of the unstable polities we have come to imagine as nation-states.Footnote 91 In this vein, Tuori reminds us that the only historically accurate use of the adjective ‘Westphalian’ is related to dogs, not world orders.Footnote 92
Along these lines, Pal offers a historical materialist account of the rise of Early Modern systems of diplomacy in Europe.Footnote 93 Rather than stressing religious strife, she posits that class (and the emergence of the burgher class in particular) explains the diverging patterns of diplomatic immunities that emerged in England and the Netherlands vis-à-vis France and Spain, challenging the mainstream narrative offered by Eurocentric histories of diplomacy.Footnote 94 Horowitz’s analysis of extraterritoriality in Qing China,Footnote 95 Taha’s reconstruction of the jurisprudence of the mixed courts of Egypt,Footnote 96 and Tzouvala’s trace of extraterritoriality in SiamFootnote 97 show how semi-civilized peoples struggled to claim their sovereignty in contexts of imperial pressure. These interventions should be read in tandem with Özsu, Ruskola, Kayaoglu, and Tait Slys’ work on the Ottoman Empire, China, and JapanFootnote 98 and Parffit’s work on EthiopiaFootnote 99 to reach a harrowing conclusion: statehood is always conditioned. For the peoples of the South, territorial statehood is always precarious and unstable, constrained to the fulfilment of imperial standards of race; civilization; development; alien/human rights.Footnote 100 Thus, extraterritorial jurisdiction is nothing less than Empire’s visible hand, extending far beyond the ‘territorial’ limits of the centre. In the longue durée of the many jurisdictional assemblages mobilized to exert imperial control, the illusion of territoriality is little more than a recent and precarious assumption.
2.3 When renewal repeats: Secular international law
Critical scholars, as we have seen, have raised important challenges to MILS’s presumption of territoriality. In fact, by problematizing territory, these new voices have highlighted the persistence of the specter of Empire in our contemporary understandings of jurisdiction in international law (and IHRL in particular). They show, to paraphrase Anghie, the ‘haunting ancestral connections’ between the Age of Empires and our supposedly postcolonial epoch.Footnote 101 Sadly, sometimes attempts at disciplinary renewal might end in repetitions of the canon.Footnote 102 It seems that both critical perspectives and MILS tend to repeat a common gesture when it comes to the analysis of jurisdiction (extraterritorial or not): the presumption of secularism. While critical and mainstream international lawyers are quick to concede that religion (and Christianity in particular) played an important role in the creation of the classical Droit des Gens, they are also keen to argue that now international law has now been effectively secularized.Footnote 103 Religion, as Kennedy noted back in 1999, is ‘something we used to have’.Footnote 104
In fact, for many, international law ‘as such’ was born from the critique of religion of the Spanish Scholastic tradition.Footnote 105 Unsurprisingly, many link its rise to the work of its ‘founding fathers’: the protestant secularizers of the Early Modern period. For Tuori and George, Grotius founded international law when he famously took God out of the equation.Footnote 106 For others, Vattel,Footnote 107 or Kant,Footnote 108 inter alia, are to be credited for the gesture of secularization. One cannot fail to see that these histories reproduce a mythology that nineteenth-century international lawyers struggled hard to entrench: the story of international law is a system of positive law, clearly separated from religions or moral considerations.Footnote 109 As Janis noted back in 1989, the ‘fever to the form’ that accompanied the development of international law as a scientific project has been very effective displacing religion from the agenda.Footnote 110 At the time of writing, contemporary scholarship tends to address narrow questions of religious freedom and vivre ensemble. Footnote 111 Interestingly enough, when religion is seldomly addressed, it is in the context of Europe’s others.Footnote 112 See, for instance, Yahaya’s work on Islamic and Hindu jurisdictional thought,Footnote 113 or the recent volume International Law and Islam.Footnote 114 By drawing from and contributing to the recent or forthcoming works on Catholicism and International law,Footnote 115 I argue that international lawyers can and should engage productively with the history of this religion to better understand the past, present, and history of international authority. As we will see, one of Christianity’s salient distinctions from the previous canon of legal and political thinking in the Western tradition is that it embraced a boundless jurisdictional outlook. While other political models were territorialized around the polis or limited to specific groups, Christianity, since its inception, claimed an evangelical scope to govern over ‘men and souls’ with no consideration of boundaries. After all, one cannot forget that Catholicism and Universalism were forged in the same etymological crucible.Footnote 116 I argue that contemporary international lawyers – however secularized – continue to act within this tradition of pastoral imagination, in which authority spills beyond any territorial containment: in the name of humanity.
3. The critique of the secular in – and beyond – international law
In his introductory chapter to the trail-blazing volume International Law and Religion, Koskenniemi noted that there was ‘no stable ground’ for this line of critique, as international law’s ‘self-confident secularism’ had left the question of religion as an ‘almost uncharted territory’.Footnote 117 Against the grain, this volume holds together a series of contributions that chart the inheritances, discontinuities, and tensions of religious thought for contemporary international law. A pioneer intervention along these lines was offered by Moyn in his historical reconstruction of the Christian origins of core human rights doctrines.Footnote 118 In this vein, Nijman complicates Grotius’ claims to ‘paternity’ of international law, by showing how his allegedly secularizing move could be better understood as one particular way of protestant theology in the context of the Calvinist-Arminian dispute.Footnote 119 Haivry traces the international maritime law back to its Jewish theological foundations.Footnote 120 In turn, Porras highlights the importance of the Christian notion of ‘providence’ for our contemporary faith in free trade, while Tallgren explores the relevance of faith for the project of international criminal law.Footnote 121
In this article, I want not only to draw from works in international law, but also from a broader literature post-secular literature in the humanities. For both better or worse, the literature has been indebted to Schmitt’s Political Theology (and, for international law, his Nomos of the Earth). These works have been seminal references for the critique of liberal secularism, at both the national and global scales.Footnote 122 These insights were found to be particularly productive for critical theorists at the dawn of the post-Cold War period, as they gave us important tools to dissect the coming age of endless war and liberal and secular imperialism.Footnote 123 For example, Agamben draws from Schmitt and the critique of theology in his multi-tome Homo Sacer intellectual project.Footnote 124 By analysing the intersections between Roman legal institutions, Catholic rites of liturgy, and capitalist practices of accumulation, Agamben sets out to trace a history of sovereign power in the Western tradition.Footnote 125 His genealogy of duty and office will be of particular relevance for my argument in Section 4.Footnote 126
From another angle, Asad suggested the time was nigh for an ‘anthropology of the secular’.Footnote 127 In his book, Asad sought to decentre the traditional narrative of secularism that begins with the devastating European religious wars of the sixteenth century to the triumphant rise of the secular modern territorial state, questioning its blind spots and shortcomings. His ‘history of the present’Footnote 128 (openly preoccupied by the so-called ‘resurgence of religion’ since September 2001) traced a genealogy of the emergence of the ‘secular’ in the framework of ‘modernity’.Footnote 129 His book not only sheds light on the troubled and contested emergence of secularism in western discourse but also explores the consequences of its imperial expansion along the Middle East. To do so, he recognizes that secular is ‘neither singular in origin nor stable in its historical identity, although it works through a series of particular oppositions’,Footnote 130 such as ‘belief and knowledge, reason and imagination, history and fiction, natural and supernatural, sacred and profane’.Footnote 131
One could add, of course, male and female, public and private, civilized and barbaric. Postcolonial and feminist scholars like Mahmood and Scott, to cite two leading figures, have furthered this line of critique to reveal other dichotomies of the secular.Footnote 132 In her work, Mahmood identifies secularism as a particular feature of modern political strategies of governance, which includes ‘religious liberty, the legal distinction between public and private, the concept of public order, and the demographic category of religions minorities’.Footnote 133 She is particularly concerned about the way in which these projects of modern secular governance have promoted imperial goals and, in practice, hardened ‘interfaith boundaries and polariz[ed] religious difference’.Footnote 134 Thus, even if secularism aims to create a post-religious public sphere (by reducing faith to the sphere of the private), it might end up intensifying ‘pre-existing interfaith inequalities’.Footnote 135 As her case studies show, secularism often ends up prompting a particularly Christian (and more precisely, Protestant) understanding of the role of the state, which creates violence and exclusion when it is imposed in colonial (and supposedly postcolonial settings).Footnote 136 In her own words, one must interrogate the:
fundamental centrality of Christian norms, values, and sensibilities (however Judaic they are made out to be) to European conceptions of what it means to be secular. Prejudice against European Muslims today (and European and non-European Jews of the past) is constitutive of, and emanates from, this self-understanding of Europe as essentially Christian and simultaneously secular in its cultural and political ethos.Footnote 137
Scott, in turn, would articulate a powerful historical critique of the gendered nature of secularism. In her comparative history of France and the United States, she shows that the association of womanhood with religion (as to entrench the connection between maleness and reason) was a ‘hallmark of secularism discourse’.Footnote 138 In her view, ‘[g]ender difference was inscribed in a schematic description of the world as divided into separate spheres, public and private, male and female’.Footnote 139 While this critique of the distinction between the public and private sphere has been mobilized by vibrant work in feminist approaches to international law,Footnote 140 the connection between this dichotomy and the secular seems to be uncharted territory still for international lawyers.
In sum, post secularist literature has shown how this concept, rather than superseding religion, has in fact channeled, empowered, and regulated it. Secularism emerged a technique of governing religious life instead of negating it, and, as such, is imbricated with many theological concerns. Scott aptly shows how secularism did not shun belief, but rather attempted to ‘tame’ it, making it ‘an aspect of the national patrimony and an instrument of colonial rule’.Footnote 141 In fact, secularism grew as a strategy of Protestant political governance which ‘presented itself as an aspect of the Christian tradition, [defining itself] as the liberal alternative (the right of individual conscience) not only to Catholicism but to the oppressive religions of the orient’.Footnote 142
Bearing all of this in mind, thinking with Asad, Mahmood, and Scott allows us to challenge international law’s triumphalist narrative of secularization. In fact, it shows us that the celebrated extrication of religion could be better seen as a Protestant critique of a Catholicism, that discarded a particular understanding (papist, one could say) of religion to consecrate a model of Christian authority that was favourable to the rise of the territorial nation-state.Footnote 143 At that time, the practices and discourses surrounding that model to be the field of knowledge came to be called raison d’État, which led to the birth of the modern state apparatus, with the development of its military-diplomatic assemblage (abroad), and the police authorities (within its own borders). Footnote 144 Grotius, Vattel, Gentili, and Pufendorf were all protagonists of this historical process, and their alleged secularizing efforts are best seen as a Protestant critique of the previous Catholic eternal law (represented by Vitoria and SuarezFootnote 145) in their personal and political efforts to serve the rising Protestant polities they served (the United Provinces, Saxony, England, Brandenburg, and Sweden, respectively).Footnote 146 And just as the critique of secularism shows in domestic law, dichotomies also played a crucial role in international law’s ‘protestantization’. The public and private, Christian and pagan/heretic, the national and the international, the divine and the natural, comity and obligation, the spiritual and the temporal were mobilized to defend the nascent territorial jurisdiction of the state in its double struggle against the Pope and Emperor.Footnote 147 One should read this process alongside Funkenstein’s Theology and the Scientific Imagination.Footnote 148 While we tend to think of the Classical Age as the time of the rise of man and the fall of religion, Funkenstein showed the heavy inheritance of ‘modern’ science to what he accurately called ‘secular theology’.Footnote 149
With the emergence of the ‘modern’ discipline of international law in the nineteenth century, the dichotomy of Christian brother-heathen eventually subsided into the more familiar distinction between civilized and barbaric.Footnote 150 Moved by a ‘secular’ spirit d’internationalité, the international lawyers of the late nineteenth century revived many of the dichotomies of the raison d’État age to push the backward peoples of the colonies into humanity’s march towards (a non-religious) progress, by force if necessary.Footnote 151 Suddenly, colonial governors at the core decried the lethargic and superstitious (even if recently invented) traditions of colonized peoples, blaming them for their lack of Christian love, civilized taste, or – later – economic development.Footnote 152 While international law (or domestic western law, for that matter) prides itself on its secular forward-looking outlook, it continues to carry the weight of the heavy theological dichotomies that underpin the secular imagination.Footnote 153 As Mahmood showed, western legal thought hinges on the contradiction of having the cake of religion but eating secularism too.
One could think of many examples of this in contemporary (international) legal thought. Scott picked the controversial Dahlab v. Switzerland case, in which a Swiss school dismissed a primary school teacher due to her conversion to Islam (and her use of the headscarf).Footnote 154 She cited the ruling of a Swiss federal Court, which dismissed the case in 2001 because ‘it was difficult to reconcile the principle of gender equality – which is a fundamental value of [Swiss] society’.Footnote 155 Scott highlights the irony of this statement, especially considering that Switzerland only allowed access for all woman to the vote in 1971, showing the precariousness of a ‘secular’ commitment to gender equality.Footnote 156 When this case came before the ECtHR, the tribunal upheld her removal as the measure pursued the ‘legitimate aim of ensuring the neutrality of the [s]tate primary-education system’.Footnote 157 Mahmood holds this past case in contrast with the Lautsi v. Italy decision,Footnote 158 in which the ECtHR upheld the legality of crucifixes in Italian public schools.Footnote 159 In this article, I do not want to add, yet another, opinion on whether the Court erred in its doctrinal analysis.Footnote 160 Rather, following Moyn, I hold this case to be example of how religious freedom (under the cover of neutrality) is mobilized to protect Christian visions and to shun other religions like Islam.Footnote 161 In fact, Moyn shows that the Lautsi outcome is no accident, as it responds clearly to the history of the ECHR, drafted as a bulwark of Conservative Christianity against the dangerous ghost of communist atheism.Footnote 162 In conclusion, we can see that there is a growing body of literature that has, for the last two decades, provided the foundations for the critique of secularism. These diverse contributions show that ‘the secular’ often hides:
a form of ethnocentrism or crypto-Christianity, the particular product of the history of the European nation-state [which claims universalism and] has justified the exclusion or marginalization of those from non-European cultures (often immigrants from former colonies) whose systems of belief do not separate public and private in the same way, do not, in other words, conform to those of the dominant group.Footnote 163
In what follows, I bring these insights into conversation with international law, to argue that one ought to understand Christianity as a technique of jurisdictional governance. Moreover, this particular technology of governmentality came to become a fundamental matrix for posterior Western legal (and political thought) and continues to underpin our understanding of normative authority. While we now tend to think that these institutions and doctrines are fully secularized, close historical scrutiny shows that:
all political and legal concepts are elastic, none ever proves to be exactly as malleable as any other. All bear the marks of their special historical trajectories, so long as partisans of some continuity in their meaning remain to fight on its behalf.Footnote 164
4. Christianity as jurisdiction
4.1 Jurisdiction as technology
Dorsett and McVeigh offer us a rich theory of what a ‘jurisprudence of jurisdiction’ might look like.Footnote 165 They start their argument by recognizing that, in the western tradition, the concern of jurisdiction (‘the power to speak the law, and to decide what law is’) was the first legal question that can be raised.Footnote 166 Only after the preliminary matter of jurisdiction has been established, can questions of lawful conduct, justice, and equality emerge. It is thus a jurisprudence that inaugurates the exercise of normative authority. As they note, there is:
an insistent materiality to questions of jurisdiction that can be approached in terms of institutional practice or pragmatics. At the centre of these practices are the various devices, techniques[,] and technologies that make the enunciation and life of the law possible.Footnote 167
In particular, they analyse four ways in which technologies of jurisdiction are central to the western institutional repertoire: writing, mapping, precedent, and categorization.Footnote 168 Thus, instead of assuming a ‘natural link between sovereignty, territory and land’, they argue one should interrogate the way these four technologies ‘authorize’ and ‘ground’ visions of normative world-making. Here, we all draw from Cover, who put forward a theory of jurisdiction that linked ‘a justice “yet-to-come” to an institutional account of the practical reasoning of the judge that restages a role-bound jurisdiction of violence’.Footnote 169 I bring these insights in conversation with the history of Christianity to see how this religion mobilized jurisdictional technologies to create authoritative accounts of lawful conduct. In particular, I will interrogate the ‘roles’ created to bound jurisdiction, arguing that Christianity was built around the institution of the pastor. Eventually, these techniques of power came to be adopted by the state and contemporary structures of global governance, albeit in a supposedly secularized fashion. Against this, I suggest that the pastor continues to act as an office around which jurisdiction pivots, setting a mould for the disciplinary practice of international lawyers. Crucially, the pastoral comes forward especially when international lawyers attempt to engage with ‘extra-territorial’ jurisdiction. The critique of secularism reveals the continuity of pastoral ambitions in our contemporary discussion on jurisdiction beyond territory.
My focus on the intimate link between jurisdiction and Christianity, however, does not seek to claim that Western religions were the only ones that articulated visions of authority that pretended to speak for the law. Indeed, as Becker-Lorca and others have shown, semi-peripheral jurists and states often invoked their own grounds of jurisdictional power to contest western imperial designs.Footnote 170 Recently, Saksena and Singh have shown how the so-called princely states of India actively used jurisdictional language to challenge British colonial imposition, challenging traditional assumptions about the one-way ‘export’ of legal technologies from the core to the periphery.Footnote 171 Along these lines, Khan, Pahuja, and McVeigh – among others – are currently attempting to pluralize our histories and theories of jurisdiction, highlighting the importance that colonized peoples from the Global South gave to different understandings of the intermingled offices of the priest, the jurist, and the diplomat.Footnote 172 My focus on western Christianity, then, hinges on an attempt to provincialize it – to show how this seemingly universal language actually responds to particular contexts, events, and accidents in the history of the continent we call Europe.Footnote 173
4.2 The Lord is my shepard: Pastoral power and the history of governmentality
In his genealogy of governmentality, Foucault was particularly interested in the practices and discourses related to the ‘pastoral type or power’ that would eventually lead to the development of the diplomatic-military/police complex that we now call the state.Footnote 174 Foucault notes that this particular model was not endemic to the ‘western tradition’ of Greek and Roman thought, but was rather incorporated into this canon in the syncretic adoption of traditions of political theory from the Mediterranean East into the Roman Empire ‘by the way of the Christian Church’.Footnote 175 In fact, by reconstructing the scattered mentions of the relationship between the magistrate and the pastor in Plato’s work, Foucault concludes that for the Greco-Roman political imagination, authority was constructed especially in territorial terms, around the limits of the city-state.Footnote 176 Plato saw that the appropriate model for the office of the magistrate was that of the weaver, who expertly conducts the art of politics for the organized polis, rather than the pastor and his moving flock.Footnote 177
On the other hand, the peoples of the Eastern Mediterranean (and particularly the Hebrew faith) saw themselves as a people in movement, whose institutions of authority were not particularly tied down to a fixed territory. Therefore, Judaic theology began with the plight of exodus and entrusted the pastor with the difficult institutional role of leading the flock through the dangerous country.Footnote 178 This jurisdictional expansion, however, was not boundless. The pastor only spoke the law that was derived from the sacred covenant between God and the Jewish people. Roman jus civile, one must add, was quite similar to the Judaic formula. Although it had no territorial limits, it depended on the ties of personal allegiance: we now call this citizenship.Footnote 179 Christianity’s theological innovation lied in that it claimed jurisdictional authority not over a delimitated territory (like the Greek polis) or a determinate people (like the Jewish flock) but over all of humankind. In Foucault’s words, the pastorate as a ‘matrix of procedures for the government of men’ only began with:
a process that is absolutely unique in history and no other example of which is found in the history of any other [sic] civilization: the process by which a religion, a religious community, constitutes itself as a Church, that is to say, as an institution that claims to govern men in their daily life on the grounds of leading them to eternal life in the other world, and to do this not only on the scale of a definite group, of a city or a state, but of the whole of humanity.Footnote 180
As it is well known, Foucault was interested in the ways in which these pastoral techniques were later adopted by classical, modern, and contemporary procedures of truth-making and subjectivation (see, for instance, the importance of the confession for both legal and sexual fidelity).Footnote 181 In fact, the recurring concerns that underpin his work were the ‘innumerable intersections between jurisdiction and veridiction that [are] undoubtedly a fundamental phenomenon of the modern West’.Footnote 182 Thus, I would like to approach the history of Christianity as an assembly of practices and discourses that attempted to use the institution of the pastor to link a set of jurisdictional claims and religious beliefs. The pastor, in other words, was given the jurisdictional task of being the Vicar of Christ: tasked with the perilous office of guiding his (endless) flock in the pursuit of divine truth.Footnote 183 From then, our legal magistrates have been entrusted mutatis mutandis to embrace the figure of the pastor, and our kings, judges, and leaders have been created in His own image. If Foucault famously claimed that political theory has not cut off the head of the king yet,Footnote 184 I argue that jurisprudence and legal theory still rest on the shepherd’s crook.
Instead of offering a comprehensive history of the Catholic church,Footnote 185 in what follows I will highlight the importance of the pastoral office of the Pope for the articulation of mechanisms of jurisdiction and veridiction in Christian governmentality. I argue that one must understand the birth of territorial nation-states (and therefore, of the question of ‘extraterritorial jurisdiction’) in the backdrop of the theological disputes over the scale and scope of pastoral power. But before, let us stand before Van Gogh’s representation of pastoral authority (Figure 1). As Manderson reminds us, ‘[i]mages are prime sites of law’s theory and law’s praxis. They are also, on occasion, prime sites for the critique of law, too’.Footnote 186
Vincent Van Gogh. After the Storm (or Shepherd with a Flock of Sheep), 1884, oil on canvas, 66.3 x 128.5 cm, Mexico City, Museo Soumaya - Fundación Carlos Slim.
4.3 Jurisdictions before the state: Orderly disorders before the birth of territory
As Weber noted in this comparative sociology of ‘world’ religions, one distinctive aspect of Christianity was its hierarchical organization around the institution of the bishop.Footnote 187 This officer was entrusted with presiding in the absence of God, and (according to theology) was initially entrusted to Peter Simon when Christ told him to ‘feed his sheep’.Footnote 188 As historians of theological thought have shown, the mantle of ‘the bishop’ was entrusted to leaders of Christian congregations since at least the third century. However, from the establishment of Christianity up to the fifth century there had been no such thing as a pope. In fact, spiritual authority was divided amongst the bishops of the different sedes apostolicae (churches that had been founded by an apostle): Antioch, Philippi, Ephesus, Corinth, Thessalonica, and Rome.Footnote 189 While Rome could claim the dual presence of the apostles, Paul and Peter, there were no ‘clear-cut claims, or recognition of, papal primacy’.Footnote 190 The movement of the imperial capital to Constantinople added another warring faction to the many dioceses of the East, while Rome was left undisturbed as the sole high see of the West. With the power vacuum generated by the fall of the Western Roman Empire, the Bishops of Rome claimed their mantle as vicar of Christ, primus inter pares. For Agamben, entrusting him with the responsibility for the whole church enabled the reconciliation of the ‘spiritual dignity (the possession of charismas) with the carrying out of a juridical-bureaucratic function’ permitting ‘the celebration of the divine mysterium as the fulfillment of a human ministerium’.Footnote 191 Ever since, the Pope was tasked with keeping the keys to the dialectic of jurisdiction/veridiction, acting not only as a dogmatic authority but also as a temporal institution of government. In this context, the church defined:
[t]he area of jurisdiction [as] a functionally delimited realm of possible objects for commands and thus the sphere of the official’s legitimate power … The pastor or priest has his definitely limited “jurisdiction”, which is fixed by rules. This also holds for the supreme head of the church. The present concept of papal “infallibility” is a jurisdictional concept.Footnote 192
And this, in turn, brought the birth of ‘the global pastor’ in the office of the Pope. This new power, both spiritual and temporal, created a powerful innovation in the techniques of the governance of men and women. While Greek power was bounded by territory (the polis) and Roman jus civile/Jewish divine law was limited to a determined people (citizens/the chosen people), the Pope claimed to speak to and on behalf of all humanity. He, and only he, was not only Christ’s vicar, but the bishop of all humankind. This ‘presumption of universalism’ set the stage for the almost two millennia of struggles for, against, and in pastoral politics. For instance, while the eastern dioceses recognized the importance of Rome, they refused to accept its claim to supreme temporal and spiritual power, leading to the East-West schism of 1054.Footnote 193 Two decades later, the Pope would also quarrel with the resurgent Holy Roman Emperor, leading to the famous investiture controversy.Footnote 194 As Bartelson notes:
Papal superiority in … legal disputes … was facilitated by a gradual accumulation of archives and registers. The church had a past of its own, consisting of a continuity of texts linked together by continuity of commentary and interpretation … what was outside this body of texts, ranging as it did from the very words of God down the tiniest legal protocol, was not admitted as knowledge.Footnote 195
Unsurprisingly, we see that many of the technologies associated with contemporary legal orders and their jurisdictional operations have long roots in papal (and anti-papal) modes of controversy.
But power, as Foucault was well aware, was not stable and perennial.Footnote 196 Every conduct imposed by technology of governmentality tends to lay the groundwork for later counter-conducts that undermines the original mechanism of discipline.Footnote 197 Hence, further disputes with the powers (both temporal and spiritual) would lead to the emergence of a plethora of antipopes -and even another great schism within the Latin church throughout the late middle ages.Footnote 198 By the early fourteenth century, the church had developed a ‘theory of near-absolute papal monarchy’.Footnote 199 As we know well, further disagreements led to the Reformation and Counter-Reformation movements of the sixteenth centuryFootnote 200 in a period ‘in which modern states begin to take shape while Christian structures tighten their grip on individual existence’.Footnote 201 Vitoria’s rejection of papal authority over the Americas (and his move towards a more ‘secular’ natural law) but one of the many instances of pastoral disputes over international authority.Footnote 202
In sum, with Foucault, we can conclude that:
the importance, vigor, and depth of the implantation of this pastoral power can be measured by the intensity and multiplicity of agitations, revolts, discontents, struggles, battles, and bloody wars that have been conducted around, for, and against it. The immense dispute over the gnosis that divided Christianity for centuries is to a large extent a dispute over the mode of exercising pastoral power.Footnote 203
The pastoral created a template for jurisdictional authority before the existence of the state. In fact, one could retell the history of Western political thought not as a narrative of secularization that eventually led to the rise of the state, but rather as a divisive contest between petty kings, roving and stationary bandits, the Holy Roman Empire, and the Pope for the mantle of the Vicar of Christ.Footnote 204 In fact, we can reread the leading works of sociologists like Sassen, historians like Kantorowicz, Benton, Herzog or Wood, political theorists like Tilly, or critical geographers like Elden to see the many ways in which the ‘great battle of pastorship [that] traversed the West from the thirteenth to the eighteenth century’ unfolded.Footnote 205 Perhaps, what we now call and revere as the ‘nation-state’ was nothing else than a tentative Protestant formulation of scale attempted to fix the limit of pastoral governmentality to a territorial space and a defined political community, always under the contestation of smaller local and wider global forms of pastoral imagination. Instead of a long teleological march from a religious past into a secular present, we have a messy picture of competing models of papal-like authority.
The struggle of ‘secular’ and protestant polities against Catholic ultramontanism in the nineteenth century should be read as one of many disputes in the Western pastoral about the territorial (or lack thereof) delimitations of papal primacy. In 1870, the Catholic Church nailed its thesis to the door when in the constitutio dogmatica Pastor aeternus it consecrated the jurisdiction and authority of the Pope over all peoples, in matter both spiritual and temporal.Footnote 206 Interestingly enough, this occurred at the same time as the Italian nation-state claimed jurisdiction over the whole city of Rome. When it occupied the city later that year, Italy confined the territorial jurisdiction of the papacy to the Vatican enclosure.Footnote 207 This, of course, did not bring an end to papal political influence. James Brown Scott celebrated that while the Lateran Treaty reduced the temporal power of the Pontiff, it also recognized larger spiritual sovereignty.Footnote 208 For this reason, the Pope was an ‘ideal arbitrator of international’ disputes, holding the keys to the kingdom of justice and truth.Footnote 209 While the mantle of vicar was eventually bestowed instead on the new international courts and tribunals of the twentieth century, shows how the model of the papacy continues to underly (international) law’s claims to authority. Not in vain, Moynier imagined the Institut de Droit International as a ‘juridico-ecumenical council, without pope or infallibility’Footnote 210 while Oppenheim felt it important to clarify that ‘Grotius was not an infallible pope’.Footnote 211 Another, more contemporary, example may be found in the recent statement issued by the bishops of Bolivia denying the recent coup against indigenous leader Evo Morales (who, in turn, asked for papal intervention in his favourFootnote 212). This shows the continuing relevance of Christian institutions in the mediation between jurisdiction and veridiction.Footnote 213 As Foucault noted, ‘there have been anti-feudal revolutions; there has never been an anti-pastoral revolution. The pastorate has not yet experienced the process of profound revolution that would have definitively expel it from history’.Footnote 214
Indeed, this article offers but a brief vignette of the long history of the pastorate as a model for later forms of political and social organization. Foucault’s later work would insist that pioneer Christian rituals (such as the confession) would be central to the articulation of modern forms of bureaucratic individualization.Footnote 215 In this light, liberalism is an outgrowth rather than a supersession of previous religious ways of thinking.Footnote 216 Biopolitical interventions, and even contemporary neoliberal forms of governmentality, can be productively read as sophisticated elaborations of the tried Christian repertoire.Footnote 217 My aim here is not to reproduce the important contributions of other fields of knowledge on the relation to ‘modern’ technologies of government and ‘ancient’ religious rites, but rather to bring these insights in our own field to challenge the confidence of international lawyers with the so-called secularization of the discipline. Jurisdiction is one of the many theological concepts that legal scholars and practitioners regularly use without reflecting on its heavy inheritances.
At the same time, I must clarify that this does not mean that I am necessarily putting forward a different, pluralized, or postcolonial account of jurisdictional thinking. There is an important debate within the ‘critical’ tradition regarding the possibilities of Reformation (no pun intended) in contemporary international law.Footnote 218 To be sure, the emerging chorus of Marxist and critical voices leaves ample room for disagreement.Footnote 219 I understand why some readers might be disappointed with not finding in this article an extended discussion of the counter-conducts – past, present, and future – that can be used to challenge the Christian legacy of jurisdiction thinking to reform and secularize international legal discourse.Footnote 220 While this is an important project, in this article I did not aim to provide recipes (legal or otherwise) for the cookbooks of the future.Footnote 221 Instead, I intended to provincialize and problematize international law’s presumption of territoriality.Footnote 222 I argue that MILS’ certainties about the normalcy of territorially-bound jurisdiction can only be sustained when one ignores the centrality of Christian extraterritoriality in western thought. To think about jurisdiction in this way requires a specific form of forgetting.Footnote 223 Moreover, I argue that TWAILers (and other fellow travellers of the critical roads), have perhaps also forgotten the burning influences of religious practices in our critique of the cold monster that we call the state.Footnote 224
But this article does not seek to provide the last word. In my view, it opens a set of questions related to how specific techniques of governing that are common in contemporary international law have been shaped by and large in the mould of religious rites. This may include, inter alia, the long road from the confession to the testimony;Footnote 225 from the papal nuncio to the ambassador;Footnote 226 from protestant dissent to freedom of religion;Footnote 227 from the exegesis of the bible to the interpretation of international judgments as ‘holy writs’;Footnote 228 or from to the figure of the Christian missionary to the humanitarian delegate that ventures bravely into the field.Footnote 229
5. Concluding remarks: Training the shepherds of humanity
Much ink has been spilled on the birth of international law as a profession,Footnote 230 especially after Koskenniemi and Kennedy invited us to think of ‘international law as what international lawyers do and how they think’Footnote 231 (and, most importantly, of the particular political projects they mobilize when they act and thinkFootnote 232). Usually, this process of disciplinary formation is told as a twin narrative of ‘autonomization’ (with the emancipation of international law from religion or politics) and ‘scientification’ (with the rise of legal positivism).Footnote 233 When we draw from critiques of secularism reviewed above, it seems clear that this is not much more than an exercise of wishful thinking (at its best), and a misleading myth (at its worst). In fact, international law continues to inhabit the pastoral mould, and one cannot understand its triumphs, shortcomings, and biases without delving into the universal aspirations of the Vicar of Christ.
Elsewhere, I have explored the ‘cosmopolitan dream’ that has animated international law since its inception.Footnote 234 In that piece, I argued that the 1990s led to a resurgence of cosmopolitan legal consciousness, in which dreams of human rights, free trade, and the international rule of law that had been shackled since 1945, 1873, or even 1648 suddenly found themselves unshackled from their Cold War prison. The spirit d’internationalité the Koskenniemi traced in the late nineteenth century is still living well today. As he himself noted, for many ‘[t]aking international law as one’s professional career simultaneously seems to opt for a politics that favours global governance over national sovereignty, human rights over domestic jurisdiction, integration over independence’, often combining ‘Grotian humanism, Kantian cosmopolitanism[,] and Wilson’s institutional faith’.Footnote 235 Koskenniemi then puts forward four distinct Weberian models of professional commitment: the judge,Footnote 236 the adviser,Footnote 237 the activist,Footnote 238 and the academic.Footnote 239
Underlying all those models, I suggest, lies the pastor. Underneath the façade of liberal and secular commitments, these ideal types are different contemporary formulas to address the old question of the vicariate. They embody diverse responses to the perennial jurisdictional inquiry: who speaks for the law? They push for diverging technologies of authority; scales of jurisdictional intervention; and patterns of lawful conduct. But, when all is said and done, none of them fundamentally departs from the theological concern over how to navigate the turbulent waters between jurisdiction and truth in the never-ending quest of governing humankind. Dismissing the ‘primitive parochialism’ of his fellow domestic lawyer,Footnote 240 the international lawyer claims a higher diocese than the petty nation-state. She aspires to become the true Bishop of Rome, holding the keys for the kingdom of the Universal. For Humanity’s vicar, there is nothing beyond her grasp.
Open access
