A FOUCAULDIAN APPROACH TO INTERNATIONAL LAW

Vol. 17 No. 9 (September, 2007) pp.748-752

A FOUCAULDIAN APPROACH TO INTERNATIONAL LAW: DESCRIPTIVE THOUGHTS FOR NORMATIVE ISSUES, by Leonard M. Hammer. London, UK and Burlington, VT: Ashgate Publishing, 2007. 162pp. Hardback. $99.95/£55.00. ISBN: 0754623564.

Reviewed by Victoria A. Redd, The Journal Offices, University of Florida Levin College of Law. Email: reddva [at] law.ufl.edu.

In law school classrooms and international conferences (where lawyers, scholars, and philosophers gather), international law and its complicated politics are often discussed. A common question is: How do we maneuver the intricate network and its many influences on international law?

This topic is not necessarily among one of the favorites. One might be better served to spend time talking about domestic policy or copyrights. There is no sure fire way to be successful in the international arena, but there are many schools of thought about negotiating its politics. Yes, there is the view of David Kennedy (2000) who believes international law consists of complicated interactions between groups of individuals pursuing many projects. Then, there is Martti Koskenniemi (1990) who has a critical approach to international law believing basically “law is politics” and that it is finding a solution considering the current circumstances. Jack Landman Goldsmith and Eric A. Posner (2005) believe that international law involves the state promoting its interests to further its power and welfare. There are many angles to this topic of international law; the above scholarly views are just a few. Is there a rule of thought that ties all of this together?

In the nineteenth century, public international law was developed after the two world wars, when the League of Nations became the United Nations and the U.N. Charter and Geneva Conventions were established. These foundations are well and good, but in the private international law arena, one is dealing with individuals and not states, mostly in terms of jurisdictions, where a case will be heard and how this affects the outcome.

To make it even more complicated, add overseas corporations with unlimited resources, and before you know it, you have disputes where enforceability is in question. There are many different entities (public and private) involved with various motives and interests, some altruistic (working towards humanitarian needs) and others more selfish. How can one understand and decide whose interests should be served or recognized, especially if an entity may not actually meet the requirements to be a state and is denied its rights in some way? Recognition in itself is important because it gives newly formed states the status it needs to become part of the international community. To take it one step further, how does this recognition actually influence international law? Does this recognition lead to an outcome of certain norms or standards given by international law? Are there clear rules [*749] to follow, an approach that leads to a compromise for all involved?

For those who are unraveling the intricacies of international law, it will serve them well to consider Leonard M. Hammer’s well-researched book, A FOUCAULDIAN APPROACH TO INTERNATIONAL LAW: DESCRIPTIVE THOUGHTS FOR NORMATIVE ISSUES. Although some may shy away from this lengthy and hard to say title, implying the book’s complexity, it contains a lively discussion of various views of international law. Hammer, Senior Lecturer at Zefat College, Israel, has taken several aspects of international law and, using the late Michel Foucault’s philosophical perspective on social institutions, helps us to embrace each with a clearer approach of its questions and possible solutions. Hammer has also included a well-written concise conclusion to the book which he calls a “starting point . . . offer[ing] a framework by which one can refer to Foucault” (p.129) to examine other matters of importance in international law.

Hammer chooses to address five situations in international law using Foucault’s framework to examine each. He starts with “recognition of states,” focusing on the process that led to the decision for an entity to be recognized. His second situation is “customary international law,” focusing on the process or events that led to the law’s formation. Third, he chooses “the human right to freedom of religion or belief,” considering the process that social interaction and power play in creating the importance of various religions and beliefs. The fourth situation is “human security,” focusing on the process of the relationship between society and the state’s part in providing its security. Last, Hammer addresses the situation of “non-governmental organizations,” using the Foucauldian approach to assess the process or role of how the non-governmental organization functions in society and influences the state.

The problem with many views of international law is that there is no direct way to analyze a given situation, but only a tendency toward acceptance. Foucault’s framework provides a tool to identify and analyze the interactions in conflicts that culminate in change. This, in turn, provides a context to examine international law. It does not necessarily provide answers, but it helps to find the important questions so that one can at least consider a compromise or solution to the problem.

Hammer begins his book by telling us his purpose is “to offer alternative conceptions.” He stresses that Foucault is “a means of understanding and enhancing international law.” Because Foucault looked at the chaos of a situation instead of trying to find an answer, he asks us not to dismiss his methods, but rather to allow his methods to cause us to think in a different way with a new perspective. He explains the ambiguity in international law, its inconsistencies, and lack of a definite network. His example is an international law that may result from a treaty drawn up as an agreement between two or more states, but each state will interpret the treaty in a way that best suits its own [*750] interests. This is the crux of the problem with international law. How is a treaty to be enforced or regulated? What part does this play, if at all, in international law?

Hammer’s main goal here is to help us through the maze of international law and the many theories about it. He wants us to get through the mess and understand the conflict that is going on amidst the chaos. He debates that, although Foucauldian thinking does not solve the problem, it allows one to perceive what the actual problem or conflict is. In his conclusion, he tells us that using Foucault’s framework is important, but it will “open up doors” in other frameworks that are outside of the state’s interests such as indigenous peoples, partisan politics, and other discontinuities in society. Hammer also suggests that Foucault’s framework could be used to examine the problems of rights protection for migrant workers and the International Court of Justice. Changing one’s way of thinking from the norm or subjective interpretation to consider the power struggles instead can lead to a possibility for understanding the problem with a new perspective. But, Foucault’s attitude toward law may be a dilemma for scholars who are pragmatic.

At first glance, it would appear that there is a conflict in using Foucauldian thinking. It is unconventional to consider the chaos in a situation rather than to consider the main actor in the drama. International law’s main actor is normally the state or government involved in the given situation. It is not normal for a law or treaty to speak regarding what the citizens or other organizations in the government will do. This is the complete opposite of how Foucault felt. He evaded the law because it put government above the people. This attitude was a problem and thought to be merely surveillance of the government. Foucault’s methods have been eliminated from the legal system. Hammer breaks the schools of thought down into the neo-realist, who asks “Why do we have norms at all?,” the neo-liberalist, who asks “How do norms operate outside of a cooperative context?,” and the deconstructionist, who “does not fully address the notion of obligations implied by norms.”

These approaches to international law leave us with a need to answer the question but no way to interpret it in order to get to the solution. Hammer suggests that Foucauldian thinking, e.g., “[a]lternative approaches to power,” is the answer. We can divide the issues that constitute the state’s influences and recognize external players in the conflict as well. Therefore, a Foucauldian approach keeps us from omitting critical parts of international law and feeling as if there is futility in all of it.

Hammer explains to us that, in refusing to use subjective views such as democracy, capitalism, and western methodologies to look at international law, we are opening our eyes to other possibilities and ideas. Liberal tradition has made claims that the democratic system is the most appropriate. Hammer points out that Foucauldian thinking does not start with this assumption. It does not dismiss concepts that are opposed to democracy. Once we get past what we think a legitimate government system is, we broaden our realm and [*751] scope of understanding. Lawyers normally seek to have some legal conviction in their decisions. Hammer declares that we must try other approaches to the problems, rather than trying to solve things in the same way and never getting to the solution. In expanding our options, we are able to reach conclusions that we never considered in the first place. Instead of deconstructing or subverting the meaning of the system, we are trying to find a compromise that will allow the system to run better and address the demands of all involved. This includes various views and responds to the many influences of power that are within the given situation. Only when doing this, can we recognize the interplay between the relationships in international law.

Another explanation of Foucauldian thinking would be that we are not looking for two opposing forces to define the problem. Rather, we are looking at the elements or pieces that make up the puzzle and yielding to each its ability to exist. Hammer admits that Foucauldian thinking is “open-ended,” creating more questions as one digs through the shifting ground of international law. This, he leads us to believe, is more gratifying because we glean more information about the problem. which can possibly take us one step closer to a compromise. He believes that the Foucauldian approach is better than going around in a dichotomous circle by dwelling on narrow approaches, which he calls an “outmoded statist approach,” or which treat international law as a functioning system that leads to global order. However, neither of these approaches reveals the change taking place at the time. Many of the changes that invade international law include religion, ethnicity, and national differences. Hammer suggests that these differences lead to disharmony in a system and many times yield a stalemate, so another approach is needed to get past this.

Hammer does not try to convince us that the Foucauldian approach is the answer to the problems involved in international law. But he does suggest that, if we will at least consider using the approach, we can get out of the rut that is keeping us at a standstill.

The Foucauldian concept, of course, is difficult to assess. How can one measure whether an approach actually works, especially when it sparks so many questions? Nonetheless, Hammer believes so fully in this approach that he has presented several of the book chapters at conferences and lectures about Foucault and the law. Anyone dealing with international law and politics should consider contemplating the ideas and reflections on Foucault that Hammer has presented in this book.

REFERENCES:

Kennedy, David. 2000. “When Renewal Repeats: Thinking Against the Box.” 32 NYU JOURNAL OF INTERNATIONAL LAW & POLITICS 335-500.

Koskenniemi, Martti. 1990. “The Politics of International Law.” 1 EUROPEAN JOURNAL OF INTERNATIONAL LAW 4-32. [*752]

Goldsmith, Jack L. & Posner, Eric A. 2005. THE LIMITS OF INTERNATIONAL LAW. Oxford University Press.

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