Fleur Johns, Non-Legality in International Law

Abstract

What does it mean to say that law has boundaries and limits? In the previous issue of this journal Raf Geenens reviewed how Hans Lindahl grappled with this question in his study on Fault Lines of Globalization: Legal Order and the Politics of A-Legality. Lindahl’s book focuses on the reconfiguration of legal boundaries brought about by globalization(s), as well as on new limits to legal ordering and novel forms of inclusion, exclusion and political contestations that come with it. A different approach towards the construction of legal boundaries can be found in Fleur Johns’ book Non-Legality in International Law: Unruly Law (hereafter: Unruly Law). As the title suggests, the book is primarily written for international lawyers. However, the book speaks to other disciplines as well, including legal philosophy. Unruly Law not only builds on a rich body of philosophical literature; the study itself is an exercise in philosophizing. It ‘turns givens into questions’ by reflecting how international lawyers construct what is not international law; and con‐ versely, what international law is not. More concretely, Johns focuses on the con‐ struction of five types of non-legalities: (a) illegality (exceeding suppression by, being forbidden by or defiant of international law); (b) extra-legality (lying outside international law); (c) preand post-legality (standing before or in the wake of international law’s operation); (d) supra-legality (surpassing legal grasp or compre‐ hension); (e) infra-legality (the marginal, natural, incidental or unworthy of direct notice). Each form of non-legality is studied through specific practices of boun‐ dary setting, from the torture memos to Guantanamo Bay, investment law, cli‐ mate change and the management of dead bodies in the aftermath of natural dis‐ asters. Adopting what she calls a ‘quasi-ethnographic’ approach, Johns seeks to articulate what international lawyers do when they craft events or phenomena as non-law; how they draw boundaries between the providence of international legal rule and that which stands against it, outside it, before or after it; that which transcends it or is too marginal to be grasped by legal knowledge. However, the point of Unruly Law is not just to analyze what lawyers do; the point is to open up new frames on the workings of international law and to draw attention to what is suppressed and marginalized in traditional scholarship. As Johns puts it, Unruly Law challenges ‘international legal studies that seek to apply international law to a world cast in some sense as beyond that law (or vice versa), worry incessantly that international law is not enough for the task of application (or absorption), and hence neglect to scrutinize and tactically engage with those aspects of inter‐ national legal work that are constitutive of at least some dimensions of that beyond’ (24).