Non-Legality in International Law: Unruly Law (Cambridge Studies in International and Comparative Law, Series Number 96)

International lawyers typically start with the legal. What is a legal as opposed to a political question? How should international law adapt to the unforeseen? These are the routes by which international lawyers typically reason. This book begins, instead, with the non-legal. In a series of case studies, Fleur Johns examines what international lawyers cast outside or against law – as extra-legal, illegal, pre-legal or otherwise non-legal – and how this comes to shape political possibility. Non-legality is not merely the remainder of regulatory action. It is a key structuring device of contemporary global order. Constructions of non-legality are pivotal to debate in areas ranging from torture to foreign investment and from climate change to natural disaster relief. Understandings of non-legality inform what international lawyers today do and what they refrain from doing. Tracing and potentially reimagining the non-legal in international legal work is, accordingly, both vital and pressing. Cover 1 Non-Legality in International Law 3 Series 4 Title 5 Copyright 6 Dedication 7 Contents 9 Foreword 11 Acknowledgements 13 1 Making non-legalities in international law 17 After the fall: Koskenniemi and Kennedy on international legal managerialism 30 Quasi-ethnography – mode of inquiry and goals of this book 37 Tactical engagements 42 2 Illegality and the torture memos 48 Illegalities in international law 54 Beyond international legality? 59 Generative illegality 63 Hope 65 Correction 67 Community 69 Conscience 72 Errant illegality 76 Conclusion 82 3 Black holes and the outside within: extra-legality in international law 85 The legal order of ‘anomaly’ 88 International legal scholarship and the assertion of extra-legality 93 Extra-legality from ‘without’: Guantánamo as exception 96 Extra-legality from ‘within’: annihilation of the exception? 105 On exception, decision and resistance 114 Conclusion 121 4 Doing deals: pre- and post-legal choice in transnational financing 125 Non-legalities compared 130 Party autonomy as pre- or post-legality in private international law: doctrinal and legal realist accounts 132 Overdetermination and overflow in autonomous choice 143 Doing deals: the vocabulary of the market 145 Performing (corporate) power: pace, place and projected returns 146 The model as mute master: deal as commodity 156 Revisiting pre- and post-legal autonomy in private international law 158 A confluence of non-legalities 163 Conclusion 167 5 Receiving climate change: law, science and supra-legality 169 Making the supra-legal 173 The IPCC 174 IPCC assessments as voices from beyond: catalyst, evidence, community 184 Catalyst 184 Evidence 187 Community 192 Occupying international law on climate change 197 6 Death, disaster and infra-legality in international law 201 Field notes: reading the First Responders Manual 205 Infra-legal death: a manual 212 Managing the dead: redux 220 Marginal notes: the critical possibilities of infra-legal inquiry 226 Conclusion 231 Expanding the repertoire 232 Tracking trans-disciplinary practices 234 Accentuating the negative 238 Bibliography 241 Index 271 Series 277 International lawyers typically start with the legal. What is a legal as opposed to a political question? How should international law adapt to the unforeseen? These are the routes by which international lawyers typically reason. This book begins, instead, with the non-legal. In a series of case studies, Fleur Johns examines what international lawyers cast outside or against law - as extra-legal, illegal, pre-legal or otherwise non-legal - and how this comes to shape political possibility. Non-legality is not merely the remainder of regulatory action. It is a key structuring device of contemporary global order. Constructions of non-legality are pivotal to debate in areas ranging from torture to foreign investment and from climate change to natural disaster relief. Understandings of non-legality inform what international lawyers today do and what they refrain from doing. Tracing and potentially reimagining the non-legal in international legal work is, accordingly, both vital and pressing. Fleur Johns is an Associate Professor at the Sydney Law School, University of Sydney, and Co-Director of the Sydney Centre for International Law. Publisher's note As international lawyers make law, they make non-law. Understandings of extra-legality, illegality and the like help shape the limits of global political possibility. Fleur Johns explores how non-legality is crafted in areas ranging from torture to foreign investment and from climate change to disaster relief and explains why this matters. Shows how international lawyers make non-law (extra-legal, illegal and other non-legal phenomena) and why this matters in global politics today