Before I start, let me apologise for the absence of posts recently. I’ve been very busy and have not really had time for this blog. Hopefully it will pick up again towards the end of the month.
Anyway, today’s ITW features an article by one Susanne Krasmann from the University of Hamburg, entitled ‘Targeted Killing and Its Law: On a Mutually Constitutive Relationship’. Krasmann is a follower of the ‘Foucauldian’ school of philosophy. We have encountered this school before on ITW here and here, but Krasmann is different, because she actually makes some very good perceptions.
The trick employed by the Foucauldian school was explained by Martha Nussbaum in a critique of leading Foucauldian Judith Butler:
obscurity creates an aura of importance. It also serves another related purpose. It bullies the reader into granting that, since one cannot figure out what is going on, there must be something significant going on, some complexity of thought, where in reality there are often familiar or even shopworn notions, addressed too simply and too casually to add any new dimension of understanding. … When Butler’s notions are stated clearly and succinctly, one sees that, without a lot more distinctions and arguments, they don’t go far, and they are not especially new. Thus obscurity fills the void left by an absence of a real complexity of thought and argument.
In even plainer terms than that, what Butler, Krasmann and our favourite Frenchie Michel Foucault like to do is write disgustingly dense an indecipherable passages about nothing very interesting. They do not have much to say, so they take as long as they can to say it, using the most obscure language possible, so that the average reader just assumes that, because they can’t understand what the hell the writer is talking about, whatever it is saying must be intelligent. All too often, it’s completely the opposite.
Which brings us back to Ms Krasmann. Here is the particular passage that sparked this post:
When targeted killing surfaced on the political stage, appropriate laws appeared to be already at hand. ‘There are more than enough rules for governing drone warfare’, reads the conclusion of a legal reasoning on targeted killing. Yet, accommodating the practice in legal terms means that international law itself is undergoing a transformation. The notion of dispositifs is useful in analysing such processes of transformation. It enables us to grasp the minute displacements of established legal concepts that, while undergoing a transformation, at the same time prove to be faithful to their previous readings. The displacement of some core features of the traditional conception of the modern state reframes the reading of existing law. Hence, to give just one example for such a rereading of international law: legal scholars raised the argument that neither the characterization of an international armed conflict holds – ‘since al Qaeda is not a state and has no government and is therefore incapable of fighting as a party to an inter-state conflict’ – nor that of an internal conflict. Instead, the notion of dealing with a non-international conflict, which, in view of its global nature, purportedly ‘closely resembles’ an international armed conflict, serves to provide ‘a fuller and more comprehensive set of rules’. Established norms and rules of international law are preserved formally, but filled with a radically different meaning so as to eventually integrate the figure of a terrorist network into its conventional understanding. Legal requirements are thus meant to hold for a drone programme that is accomplished both by military agencies in war zones and by military and intelligence agencies targeting terror suspects beyond these zones, since the addressed is no longer a state, but a terrorist network.
However, to conceive of law as a practice does not imply that law would be susceptible to any form of knowledge. Not only is its reading itself based on a genealogy of practices established over a longer period. Most notably, the respective forms of knowledge are also embedded in varying procedures and strategic configurations. If law is subject to an endless deference of meaning, this is not the case in the sense of arbitrary but historically contingent practices, but in the sense of historically contingent practices. Knowledge, then, is not merely an interpretive scheme of law. Rather than merely on meaning, focus is on practices that, while materializing and producing attendant truth effects, shape the distinctions we make between legal and illegal measures. What is more, as regards anticipatory techniques to prevent future harm, this perspective allows for our scrutinizing the division made between what is presumably known and what is yet to be known, and between what is presumably unknown and has yet to be rendered intelligible. This prospect, as will be seen in the following, is crucial for a rereading of existing law. It was the identification of a new order of threat since the terror attacks of 9/11 that brought about a turning point in the reading of international law. The identification of threats in general provides a space for transforming the unknowable into new forms of knowledge. The indeterminateness itself of legal norms proves to be a tool for introducing a new reading of law.
The first paragraph is not that hard to follow, primarily because she is citing the work of international legal scholars and not going off on her own wank (I couldn’t think of a better word to use). Here’s what that second paragraph reads like when translated from the academese:
While the law is shaped by the way that it is enforced, the way that it is enforced is itself shaped by the different historical interpretations of the law. The process of putting the law into practice changes the way that we look at what is or is not legal. Thinking about law this way helps us to understand the problem presented by law enforcement aimed at anticipating and preventing future crimes instead of punishing past ones. The law is incapable of dealing with ‘unknown unknowns’ — ie things that we not only do not understand, but cannot see coming. Actually identifying potential threats allows us to then begin developing tools to incorporate them into our legal system.
There is more to it than that, but I don’t feel that any of it needed to be there. This is actually a pretty strong argument and does have an impact on the way that the law treats targeted killings. I just wish that I hadn’t had to read that paragraph over several times to figure out what it was actually saying.