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For “…those who…lost their Utopias…but…still rebel…”: taking up Upendra Baxi’s Bequixotements in Times of Crisis

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Abstract

This article offers a biography of Professor Upendra Baxi, as a Southern international lawyer, so as to draw from his conduct a training in how international lawyers could authorize other worlds (and their international laws) amidst these times of crisis.

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Notes

  1. Upendra Baxi, Reversing Gramsci: Notes on Optimism of the intellect and the Pessimism of the Will?, (Dec. 10–12, 2016) (unpublished paper, presented at LASSNet Conference, New Delhi) (on file with author).

  2. Antonio Gramsci, State and Civil Society, in Selections from the Prison Notebooks of Antonio Gramsci, 276 (Geoffrey Nowell Smith ed., Quentin Hoare trans., 1971). This has been more recently (and repeatedly) re-translated by Slavoj Žižek as: “The old world is dying away, and the new world struggles to come forth: now is the time of monsters.” Slavoj Žižek, A Permanent Economic Emergency, 64 New Left Rev. 85, 95 (2010).

  3. Walter Benjamin, Theses on the Philosophy of History, in Walter Benjamin, Illuminations, 245, 247 (Harry Zorn trans., 1999).

  4. See James R. Martel, Textual Conspiracies: Walter Benjamin, Idolatry, And Political Theory, 1–2 (2011).

  5. See Benjamin, supra note 3. I will elaborate upon  this Benjaminian method in the final sub-section of this Beginnings section of the article.

  6. See Sundhya Pahuja, Decolonization and the Eventness of International Law, in Events: The Force of International Law, 91 (Fleur Johns et al. eds., 2011).

  7. David Scott, The Tragic Vision in Postcolonial Time, 129 P.M.L.A., 799, 801 (2014).

  8. See Luis Eslava, Michael Fakhri and Vasuki Nesiah, The Spirit of Bandung, in Bandung, Global History and International Law, 1 (Luis Eslava et al. eds., 2017).

  9. See Shaun McVeigh & Sundhya Pahuja, Rival jurisdictions: The Promise and loss of sovereignty, in After Sovereignty: On the Question of Political Beginnings, 97 (Charles Barbour and George Pavlich eds., 2010). McVeigh & Pahuja draw on the scholarship of Christine Black, a Kombumerri/Munaljahlai jurist, when it comes to the language and concept of ‘patterns.’ See Christine Black, A Timely Jurisprudence for a Changing World, 22 Int’l Jour. for the Semiotics of Law 197 (2009).

  10. Frantz Fanon, The Wretched of the Earth (1961).

  11. It is important to bear in mind that this approach rivalled the one being advocated at the time by several ‘western’ international lawyers. For the latter this ‘international community’ simultaneously acted as a firm actuality and a fated aspiration, which both authored international law and was sought to be achieved by the authoring of international law. See C. Wilfred Jenks, The Common Law of Mankind (1958); Wolfgang Friedmann, The Changing Structure of International Law (1964).

  12. Radhabinod Pal, The International Law in a Changing World, All India Reporter 91, 102 (1961). As Pahuja has recently observed: “The role imagined for an inter-national law in this-Third-World is not to effect the transformation of the others in the name of an idealised version of one way of life, but to allow different peoples and nations, with different laws, to meet with dignity.” Sundhya Pahuja, Letters from Bandung: Encounters with Another International Law, in Bandung, Global History, and International Law, 552, 555 (Luis Eslava et al. eds., 2017).

  13. See Adil Hasan Khan, Inheriting a Tragic Ethos: Learning from Radhabinod Pal, 110 AJIL Unbound (2016).

  14. I develop upon how I am using the concept ‘modes of authorization’ in the next sub-section.

  15. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Adrisory Opinion, 1971 I.C.J. Rep. 1971 16 (separate opinion by Ammoun, J., 71–72). See also Roselan Abdulgani, Bandung Spirit: Moving on the Tide of History (1964); T.O. Elias, New Horizons in International Law (1978).

  16. McVeigh & Pahuja, supra note 9.

  17. See Sundhya Pahuja, Decolonizing International Law (2011).

  18. Sundhya Pahuja, Laws of Encounter: a jurisdictional account of international law, 1 London Rev. of Int’l Law 63, 79 (2013).

  19. See Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2010); Pahuja, supra note 17.

  20. See Adil Hasan Khan, The ‘Bihar Famine' and the authorization of the Green Revolution in India: Developmental Futures and Disaster Imaginaries, in Cold War International Law (Sundhya Pahuja, Matthew Craven & Gerry Simpson eds., forthcoming 2018).

  21. See David C Engerman & Corinna R Unger, Introduction: Towards a Global History of Modernization 33 Diplomatic History 375, 375–376 (2009).

  22. On the debt crisis see Susan George, A Fate Worse Than Debt: The World Financial Crisis and the Poor (1990).

  23. See Vijay Prashad, The Darker Nations: A People’s History of the Third World (2007).

  24. From an international law perspective the most illuminating accounts of these developments, including those pertaining to the ‘Third World’ strategies around the New International Economic Order (NIEO), remain Rajagopal supra note 19; Pahuja, supra note 17. For Baxi’s recollection of certain aspects of these times see Upendra Baxi, The (Im)Possibility of Constitutional Justice: Seismographic Notes on Indian Constitutionalism, in India’s Living Constitution: Ideas, Practices, Controversies, 31 (Zoya Hasan et al. eds., 2002).

  25. Baxi’s doctoral work, in the fields of private international law, maritime law and conflict of law, was undertaken at California, Berkeley, under the supervision of the famous Austrian Jewish emigre jurist, Albert Armin Ehrenzweig, who was also instrumental in arranging his meeting with Hans Kelsen. For an immensely instructive and moving account of Baxi’s move to, and time at, Berkeley see Pratiksha Baxi & Viplav Baxi, Letters to Kaka: Postcard-Images of Baxi, (in this Special Issue). In Sydney he worked with another famous jurist, Julius Stone, and also engaged with the celebrated Polish émigré jurist, Charles Henry Alexandrowicz, who was also a visiting scholar at the Department of Jurisprudence and International Law at the Sydney University Law School at the time. For an engaging account of this milieu in Sydney see Michael Kirby, The Graduating Class of Sydney Law School 1962: Talented, Lucky, Unquestioning, 36 Australian Bar Rev. 189 (2012). For Baxi’s own recollections of what he described as “secure habitats for an émigré scholar” in Sydney see Upendra Baxi, Revisiting Social Dimensions of Law and Justice in a Posthuman Era, 1 Law Soc. Just. & Global Dev. Jour. (2007). I would like to acknowledge the amazing research assistance provided by Robin Gardner and Louise Ellis, at the MLS Academic Research Service, to help me piece together Baxi’s Australian sojourn (which forms the focus of a separate article that I am currently completing along with Sundhya Pahuja).

  26. See David Scott, Tragedy’s Time: Postemancipation Futures Past and Present, in Rethinking Tragedy, 199 (Rita Felski ed., 2008); David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (2004).

  27. The storyteller, art critic and activist John Berger has perceptively defined an interregnum as a “period of re-examination”. John Berger, Walter Benjamin: Antiquarian and Revolutionary, in Landscapes: John Berger on Art, 54, 58 (Tomo Overton ed., 2016).

  28. Here, following Dorsett and McVeigh, I take authorization, and attention to it, as forming a key part of “jurisdictional thought and practice”, and thus entailing attention to action that is ultimately concerned with “how to do things with law”. Shaunnagh Dorsett & Shaun McVeigh, Jurisdiction, 4 (2012).

  29. Pahuja, supra note 18, at 96. See also Peter Rush, An Altered Jurisdiction: Corporeal Traces of Law, 6 Griffith Law Rev. 144 (1997).

  30. In most conventional accounts, authority is “the person who speaks…the law” and thus exercises jurisdiction—which in turn becomes the means for the attachment, affiliation or submission by people to this person, and through them, with one another. Dorsett & McVeigh, supra note 28, at 12.

  31. This account relies on a deceptively simple reformulation of the standard relationship provided in extant legal scholarship between authority and authorization. Whereas, in the standard account, authorization is understood as exclusively taking place in the name of a pre-existing authority, this reformulation illuminates how the conduct of authorization precedes authority and how the latter is its product, as authority is “given the power to speak in the name of the law”. Authority is thus recognized as being an effect of a performance (and not some pre-existing person) and authorization as the performance (performed by particular persons) that produces such effects. McVeigh & Pahuja, supra note 9.

  32. See Sheila Jasanoff, Future Imperfect: Science, Technology and the Imaginations of Modernity, in Dreamscapes of Modernity: Socio-technical Imaginaries and the Fabrication of Power, 1 (Sheila Jasanoff & Sang-Hyun Kim eds., 2015).

  33. Pahuja, supra note 18, at 68. I should clarify that my argument here is not that distinct modes of positing future imaginaries are the only aspect of authorization performances that make for distinct modes or call for particular conduct. There are undoubtedly others. Rather, it is simply the case that exploring how different modes of positing future imaginaries produce different authority effects happens to be the one that is most pertinent for the purposes of this article’s argument.

  34. Here I would like to stress that it is important to refrain from conflating authorization with ordering. As Anne Orford demonstrates in her magisterial scholarship, this linkage of authority and order forms a part of a very particular modern ‘European’ historical response—i.e. it is a particular mode of authorization (one that this article seeks to describe a rival mode to) responding to the crisis of authority that arose in the 16th century. As per this ‘European’ mode, not incidentally out of which emerged the ‘modern state’, authorization required the effective constitution and maintenance (with its concomitant notions of temporal permanence and smooth linearity) of order. By conflating authorization and ordering one would necessarily be foreclosing the possibilities of discerning other modes of authorization. See Anne Orford, Constituting Order, in The Cambridge Companion to International Law, 271 (James Crawford & Martti Koskenniemi eds., 2012); Anne Orford, International Authority and the Responsibility to Protect, 109–138 (2011).

  35. It is not injudicious to note that the relevant section from which the Gramsci quote is taken is basically concerned with and partly titled the “crisis of authority”. Gramsci, supra note 2, at 275–276.

  36. See Simon Critchley, Infinitely Demanding: Ethics of Commitment, Politics of Resistance, 6–8 (2012).

  37. Id. at 276.

  38. Victoria Kahn, Happy Tears: Baroque Politics in Descartes’s Passion De L’Áme, in, Politics and the Passions, 1500–1850, 93 (Victoria Kahn et al., eds. 2009).

  39. Ann Genovese & Shaun McVeigh, Nineteen eighty-three: A jurisographic report on Commonwealth v Tasmania, 24 Griffith L. Rev. 68, 68–69 (2015). For a related project that is attentive to the work (especially entailing specific forms of writing international legal histories) that is required to "take responsibility for engaging with the practice of the discipline and for its present politics" see Anne Orford, International Law and the Limits of History, in The Law of International Lawyers: Reading Martti Koskenniemi, 297, 310 (Wouter Werner et al. eds., 2017). See also Andrew Lang & Susan Marks, Even the Dead Will Not Be Safe: International Law and the Struggle over Tradition, in The Law of International Lawyers: Reading Martti Koskenniemi, 321 (Wouter Werner et al. eds., 2017).

  40. Within international legal scholarship, I see this as forming a distinct (and extremely fecund) part of a broader and burgeoning “biographical tradition in international law”. Gerry Simpson, The sentimental life of international law, 3 London Rev. of Int’l Law 3, 12 (2015).

  41. My understanding of ritual draws on see Adam B. Seligman et al., Ritual and Its Consequences: An Essay on the Limits of Sincerity (2009).

  42. Benjamin, supra note 3, at 255; Walter Benjamin, The Origin of German Tragic Drama, 34–35 (John Osborne trans., 1998). See also Martel, supra note 4, at 9–12.

  43. Benjamin, supra note 41, at 252.

  44. Id. at 255.

  45. Id. at 246.

  46. Id. at 248.

  47. As Jeffrey Minson argues, this tradition of rhetorically oriented contextual history, which was particularly significant for the early modern renaissance humanist’s, posits an intimate relationship between the exercise of (re-)describing pasts and the cultivation of office ethics (i.e. to learn how to conduct oneself as an occupant of an office) in the present. It is an orientation towards the practice of writing histories that has since been ignored, marginalised and to a large extent displaced by the Kantian–Hegelian orientation (particularly dominant today, especially amongst the more critical international legal scholars writing histories) wherein (re-)describing pasts is taken to have no ethical import. This article aspires to join Minson, in taking up the task recovering such an orientation towards the art of history writing. See Jeffrey Minson, How to Speak Well of the State: A Rhetoric of Civil Prudence, 4 UC Irvine L. Rev. 437, 441–447 (2014).

  48. On the central significance of the rhetorical technique of exemplarity in ethical training see Unruly Examples: On the Rhetoric of Exemplarity (Alexander Gelley ed., 1995). Jurists, especially those belonging to the common law tradition, are of course no strangers to the technique of configuration of conduct in the present by way of discerning past exemplum as precedent. See Edward H. Levi, An Introduction to Legal Reasoning (1948). For a recent collection in which the argument gets made regarding the continued vitality of thinking with exemplarity for both the common law and the roman law traditions see Exemplarity and Singularity: Thinking Through Particulars in Philosophy, Literature and Law (Michele Lowrie & Susanne Lüdemann eds., 2015). I would like to thank Adam Sitze for guiding me to this literature.

  49. Minson, supra note 47. It is also noteworthy that communities patterned through the technique of exemplarity are open ended and always to come. On this point see Giorgio Agamben, The Coming Community, 9–11 (Michael Hardt trans., 1993). I would like to thank Peter Rush for directing me to this reading.

  50. The Latin term persona derives from the Greek term prosopon, which referred to the masks worn on stage by actors in order to signify to the audience what role they were performing in a staged drama. See Connal Parsley, The Mask and Agamben: The Transitional technics of Legal Relation, 14 Law Text Culture 12 (2010).

  51. Dorsett & McVeigh, supra note 28, at 4.

  52. Upendra Baxi, What may the ‘Third World’ Expect from International Law?, 27 Third World Q. 713 (2006).

  53. It is important to emphasize that the personae that any actor occupying particular offices can choose to cultivate and perform are never limitless. Given the relational character of these public performances, an actor must engage in this active work of cultivation and re-imagining by way of practices of recovery and reworking from shared transmitted traditions (i.e. shared between the actor and her audience) that become available to her—including by way of grasping constellations. This will no doubt be an obvious observation for those readers who happen to be practitioners of any theatrical or performance related art forms.

  54. There exists a major (‘modern’) tradition of reading Don Quixote and its titular character as being entirely farcical see, e.g., Erich Auerbach, Mimesis: The Representation of Reality in Western Literature, 331–353 (Willard R. Trask trans., 2003).

  55. On Cervantes’s ‘Erasmine’ take on the rhetoric of exemplarity, which challenged the major renaissance approach of exclusively configuring exemplary figures as ‘great men’ from history who were timeless and infallible (and also invariably humourless) ‘male heroes’—very much ‘classical models’ of the virtues—with the rival creative configuration of tragi-comic exemplary figures see Alban K. Forcione, Cervantes and the Humanist Vision: A Study of Four Exemplary Novels, 3–30 (2017). See also Miguel de Cervantes, Exemplary Stories, 3–5 (Lesley Lipson trans., 2008). The foremost example of such literature within the corpus of the renaissance humanist Erasmus is The Praise of Folly. Desiderius Erasmus, The Praise of Folly (Hoyt Hopewell Hudson trans., 1969). See also M.A. Screech, Ecstasy and the Praise of Folly (1980). I would like to thank Shaun McVeigh for directing me towards Erasmus.

  56. See Mark Van Doren, Don Quixote’s Profession (1958); Francisco La-Rubia-Prado, Don Quijote as Performance: The Sierra Morena Adventure, 33 Revista Canadiense de Estudios Hispanicos (2009).

  57. Stephen Greenblatt, Renaissance Self-Fashioning: From More to Shakespeare (1981).

  58. Upendra Baxi, Mambrino’s Helmet?: Human Rights for a Changing World (1994).

  59. For the relevant episode see Miguel De Cervantes, Don Quixote, 152–162 (Edith Grossman trans., 2003).

  60. This term is my adaption of the neologism “bequixotize” that was coined by the Spanish philosopher Miguel de Unamuno. Miguel de Unamuno, Selected Works of Miguel de Unamuno, Volume 3: Our Lord Don Quixote, 132 (Anthony Kerrigan trans., 1967). See also Sarah Driggers, The Importance of Quixotism in the philosophy of Miguel de Unamuno (2011).

  61. Baxi, supra note 58, at xi-x.

  62. Walter Benjamin, via his efforts to form a constellation with Franz Kafka, was himself no stranger to grasping the significance of such a relationship with the Quixote. See Menachem Feuer, Students and Teachers of the Schlemiel Legacy: From Sancho Panza to Walter Benjamin, Schlemiel Theory, (April 13, 2013), https://schlemielintheory.com/2013/04/11/students-and-teachers-of-the-schlemiel-legacy-from-sancho-panza-to-walter-benjamin/. Once again, I would like to thank Shaun McVeigh for directing me to this piece.

  63. For an excellent account see Susan Byrne, Law and History in Cervantes’ Don Quixote (2013).

  64. William Egginton, The Theater of Truth: The Ideology of (Neo) Baroque Aesthetics (2014); Barbara Fuchs, Passing for Spain: Cervantes and the fiction of Identity (2003); Jose Antonio Maravall, Culture of the Baroque : Analysis of a Historical Structure (1986). The last major expulsion of the remaining Moorish inhabitants of the region took place from 1609 to 1614, in between the publication of the two parts of the Quixote (in 1605 and 1615). See L.P. Harvey, Muslims in Spain, 1500 to 1614, 291–331 (2005); Maria Rosa Menocal, Ornament of the World: How Muslims, Christians and Jews Created a Culture of Tolerance in Medieval Spain, 253–266 (2003).

  65. Friedrich Nietzsche, Thus Spoke Zarathustra: A Book for All and None, 34 (Adrian Del Caro trans., Robert Pippin ed., 2006).

  66. Upendra  Baxi, Book Review: International Law: R.P. Anand. International Courts and Contemporary Conflicts, 14 Int'l Stud. 156 (1975).

  67. Anand concluded the book with the following lines: “We are convinced that, in spite of all its imperfection, the better order called peace can be and in fact should be built by law in all its ramification. This, to our mind, is the line of least resistance. Of course it is not possible to build a rule of law in international society within a short time or without tremendous efforts and great sacrifices. But we should not let impatience obscure the importance of illuminated though distant horizons.” R.P. Anand, International Courts and Contemporary Conflicts, 440–441 (1974).

  68. Baxi, supra note 66, at 157.

  69. Id. The instantiation of Max Weber’s fruitful engagement on the question of vocational conduct can be discerned here. In Weber’s famous call to action: “…longing and waiting is not enough and that we must act differently. We must go about our work and meet “the challenges of the day”—both in our human relations and our vocation.” Max Weber, The Vocation Lectures, 31 (Rodney Livingstone trans., Tracy B. Strong & David Owen eds., 2004).

  70. Baxi, supra note 66, at 157.

  71. Id.

  72. Cf. R.P. Anand, New States and International Law (1972).

  73. Baxi, supra note 58, at xi.

  74. Upendra Baxi, The New International Economic Order, Basic Needs and Rights: Notes Towards Development of the Right to Development, 23 Indian Jour. of Int’l L. 225 (1983).

  75. See Upendra Baxi, Violence, Dissent and Development: Law and Social Change (1988). As he observed more recently: “…I need only to briefly point to the fact that participation by and on the behest of the disenfranchised peoples finds everywhere its political limits that triggers militarized forms of governance response towards whatever may be styled as ‘anti-development’ (and readily then represented by the dominant discourse as ‘anti-people’) protest-deviance. Development managers in this form of contest always claim…some superior access to a higher order ‘rationality’ than that claimed by participatory aggregations of public protests against some ‘catastrophic’ practices of developmentalism.” Upendra Baxi, The Uncanny Idea of Development, in Upendra Baxi, Human Rights in a Posthuman World: Critical Essays, 76, 91 (2009).

  76. In this regard, it is instructive to read the plethora of Baxi’s scholarship grappling with the problem(s) and constitutive entanglements between the rule of law, development and violence. See Upendra Baxi, The Crisis of the Indian Legal System (1982); Baxi, Violence, Id. In a later piece he identified the “colonial origins” of this dynamic, thus recognizing a continuity in a practice of authorization that claimed to achieve an overcoming of the ‘colonial past’ through the achievement of development, observing that: “It was the rise of positivistic jurisprudence which began to legitimate appropriation of the law to the state. And this was but a symptom of ascendant capitalism and its Siamese twin—colonialism. These constituted a decisive break in the Western legal tradition best described as genesis amnesia, which made possible the churlish, Eurocentric British boast that India knew no law, that colonized nations had a notion of authority but not of legality which it was the proud civilizing mission of the white man to inculcate in India.” Upendra Baxi, The State’s Emissary: The Place of Law in Subaltern Studies, in Subaltern Studies VII: Writings on South Asian Society and History, 252 (Partha Chatterjee & Gyanendra Pandey eds., 1993).

  77. It is not remiss to relate this back to Anand’s book and its investment in exactly the achievement of an international society sans violence by establishing a sole authority and also its invocation of the need for sacrifices to be made in order to achieve this ordering.

  78. See Adil Hasan Khan, International lawyers in the aftermaths of disasters: inheriting from Radhabinod Pal and Upendra Baxi, 37 Third World Q. (2016).

  79. See Upendra Baxi, The Bhopal Victims in the Labyrinth of the Law: An Introduction, in Upendra Baxi & Amita Dhanda, Valiant Victims and Lethal Litigation: The Bhopal Case, i (1990).

  80. Baxi, supra note 52. An early engagement of Baxi with the category of ‘expectations’ is to be found in his Introduction to the Jeremy Bentham’s Theory of Legislation published in 1986. He has frequently returned to thinking with it. Upendra Baxi, Introduction, in Jeremy Bentham, Theory of Legislation, vvii-xxii (1986).

  81. As he simply put it: “…the appropriation of the notion of law exclusively for the state is unjustified and untenable.” Upendra Baxi, Discipline, Repression and Legal Pluralism, in Legal Pluralism: Proceedings of the Canberra Law Workshop VII, 51 (1985). See also Upendra Baxi, People’s Law, Development, Justice, 12 Law and Pol. in Africa, Asia and Latin America, 97 (1979); Upendra Baxi, Conflicting Conceptions of Legal Cultures and Conflict of Legal Culture, 33 J. of Indian L. Inst. 173 (1991).

  82. Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, Yale Law School Faculty Scholarship Series 15 (1983).

  83. This includes acknowledging how “the violence of the oppressed” operates “as a historic matrix for the creation, promotion and protection of their rights”. Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies, 13 India Int’l Center Q. 185, 197 (1986). In the same piece he defended the value of practices of insurrection and revolt.

  84. On the profession of knight-errantry as taken up by Don Quixote see Van Doren, supra note 56.

  85. To borrow his evocative phrase from a later publication. See Baxi, supra note 76, at 247–246 (Partha Chatterjee & Gyanendra Pandey eds., 1992).

  86. This letting-go by an international jurist of an obligation to be the advocate of an anti-pluralist state should be contrasted with the standard liberal account whereby a jurist, in her detached quest for some eternal and objective truth, should profess absolutely no commitments to the “normative expectations” of other people. In fact such a commitment professed by a knight-errant breaks with both these roles and thus with the "dedoublement fonctionnel" that some say limits international lawyers to "acting in the dual capacity of objective scientist and government advocate". For the latter view see Oscar Schacter, The Invisible College of International Lawyers, 72 Nw. U.L. 217, 218 (1977-1978). Furthermore, this embodied commitment to the "normative expectations" of Third World peoples is distinct from some (idealist) commitment to international law itself or even a (realist) commitment to generating a general and communicable "sociological knowledge about international law" so as to enable the international lawyer to measure international law against ‘reality’. On the former see Martti Koskenniemi, Between Commitment and Cynicism: Outline for a Theory of International Law as Practice, in International Law as a Profession, 38 (Jean d’Aspremont et al. eds., 2017); and for the latter see Julius Stone, Scholars in International Law, in Julius Stone, Of Law and Nations: Between Power Politics and Human Hopes, 253, 265 (1974). On the art of such moments of withdrawal and re-emergence as enacted by ‘minor jurists’ - a category of offices within which I include a knight-errant - see Peter Goodrich, How Strange the Change from Major to Minor, 21 Law Text Culture 30 (2017).

  87. See Debolina Dutta, Another Story of the Open Letter: An Inheritance of Relationship-Making (in this Special Issue).

  88. Baxi, supra note 57, at xi.

  89. Cover, supra note 82, at 40.

  90. Which he took to entail an: “…action-oriented relationship patterns of those who sacrifice themselves and their life-projects as contrasted with those content…to speak with awesome ‘accountability’ to the violated humans after the event of human abuse and human violation…” Upendra Baxi, The Future of Human Rights, xxiii (2012).

  91. Upendra Baxi, Introduction, in Law and Poverty: Critical Essays, ix (Upendra Baxi ed., 1988); Baxi, Id. at xxi and xxiv.

  92. Laurent de Sutter, The Quixote Principle, or Cervantes as a Critique of Law, 26 Law & Literature 117, 121 (2014).

  93. Id.

  94. Baxi, supra note 90.

  95. Id. Here I would like to clearly distinguish this orientation towards suffering from the concern displayed towards suffering in the dominant mode of authorization. While in the former case suffering makes transformative demands upon the international lawyer’s selves, in the latter case suffering gets constructed as a lacking and negative state that beseeches redemptive rescue on the part of international lawyers, thus operating for international lawyers as “the foundation for one’s own authority” in the words of Pahuja. Pahuja, supra note 18, at 96–97.

  96. Id.

  97. William Twining, referencing The Future of Human Rights, writes: “Although he writes about human rights futures, Baxi is more concerned with struggle than with prediction.” Francis Deng et al., Human Rights: Southern Voices, 261 (William Twining ed., 2012).

  98. See B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Int’l Community L. Rev. 3 (2006).

  99. See Thomas Franck, The Emerging Rights of Democratic Governance, 86 American Jour. Of Int’l L. 46 (1992).

  100. Francis Fukuyama, The End of History and the Last Man (1992).

  101. Pahuja, supra note 17.

  102. Upendra Baxi, Globalization: A World without Alternatives?, 3–4 (1992).

  103. It is pertinent to note that Baxi specifically identifies the role played by the construal of ‘historical time’ as being “accelerated” in generating this illusion of inevitability. Id. at 1.

  104. Baxi, supra note 51.

  105. Upendra Baxi, Voices of Suffering and the Future of Human Rights, 8 Transnat’l L. & Contemp. Probs. 125, 169 (1998).

  106. Baxi, supra note 90, at xii.

  107. Id. at xxi.

  108. As Quixote informs Sancho, the knight-errant must “wander the world”. Cervantes, supra note 62, at 138. See also Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling (2016).

  109. See Jonathan Lear, Radical Hope: Ethics in the Face of Cultural Devastation (2006).

  110. Baxi, supra note 90, at xxxii.

  111. As Baxi puts it: “While contingent/existential collapse with disappointment, normative expectations survive, and even grow stronger, in the face of disappointment. Put another way, the more they stand violated, the greater becomes their moral strength.” Baxi, supra note 52, at 721.

  112. See Fukuyama, supra note 100.

  113. Some readers might well question the distinction being deployed here between the lack of ‘hard-headedness’ on the part of Anand, and his optimistic faith in the achievement of an ‘international community’ that we previously raised, and this resilient commitment to other “normative expectations” that have pronounced as being ‘obsolete’, exhibited by Baxi. In my view their distinction can be illuminated by contrasting how they respectively confront the experience of disappointment. The optimist either configures all disappointments as illuminating obstacles to their future appointment with destiny, obstacles that demands the further sacrifice of difference, or, if the optimist happens to lose faith, with total despair and fatalistic despondency. On the other hand, the one who exhibits ‘radical hope’ does deploy a ‘hard-headed look’ in the wake of dis-appointment, one which happens to reveal only the resilience of difference. While release, transfiguring and re-imagining might definitely be called for (and enacted) with regard to the concerned “normative expectations”, such visive attentiveness also reveals the shifting but persistent grounds for a commitment to achieving futures wherein dignity is accorded to difference. For a related reflection on how to (and not to) confront disappointment see Edward W. Said, On Lost Causes, in Edward W. Said, Reflections on Exile and Other Essays, 527 (2000). I would like to thank Antony Anghie for directing me to these lectures.

  114. Baxi, supra note 54, at 723 [emphasis supplied].

  115. Id. at 714.

  116. Baxi, The Uncanny, supra note 75.

  117. Referring to this revolutionary heritage of the ‘Third World project’ as "globalism", he re-animates it in a form which enlivens its pluralistic and ‘fragmentary’ aspects, while undoing its homogenising and statist logic. Baxi articulates the tasks lying before the ‘Third World’ international lawyer in the wake of the reversals of this project by the counter-revolutionary project ("globalization") as : “The hardest task today is how to stop the state thinking through us in the direction of globalization, away from globalism. The rehabilitation of the culture of globalism, the reclamation of the lost languages of social justice, and dependent upon its construction of practices of solidarity as a fellowship of suffering is the very agenda of human rights today. In this direction, our prime task would (sic) to recover from the debris of enlightenment thought-elements in post-modernisms which energize rather than enervate, vision of human emancipation. It is this vision that globalisation threatens. The space for plurality shrinks…A new world imperialism is in the making of globalisation. If we are to combat it, the historically available repertoire of strategies is furnished by globalism, which repudiates the maxim: “The North Knows the Best.”” Baxi, supra note 102, at 13–14.

  118. See Egginton, supra note 64. Relatedly, on the mobilization of notions of ‘common sense’ historically in populist politics, especially in the United States, see Sophia Rosenfeld, Common Sense: A Political History (2011).

  119. De Sutter, supra note 92, at 122.

  120. Samuel Moyn, The Last Utopia: Human Rights in History (2012).

  121. This account challenges the (commonsensical) opinion often expressed by certain conservative liberal legal scholars that Baxi’s scholarship underwent a fundamental shift from the mid-1990s onwards, with his purported dabbling in ‘fancy postmodern theory talk’. ‘Quixotic’ knight-errantry has a much longer history of contesting the monstrous enchanters of Euro-modernity than the postmodern ‘A-Z thinkers’ (to borrow a phrase coined by Baxi), both in Baxi’s life and that of the so called ‘modern world’.

  122. To borrow from Junot Diaz’s powerful piece in The New Yorker in the aftermath of the Trump election, wherein he draws upon the tradition of ‘radical hope’ to continue the struggle while fully acknowledging the dismal reality in which the subalterns of the world find themselves by stating that: “Because let’s be real: We always knew this shit wasn’t going to be easy. Colonial power, patriarchal power, capitalist power must always and everywhere be battled because they never, ever quit. We have to keep fighting, because otherwise there will be no future—all will be consumed.” Junot Diaz, Under President Trump Radical Hope is Our Best Weapon, The New Yorker, (Nov. 21, 2016), https://www.newyorker.com/magazine/2016/11/21-/under-president-trump-radical-hope-is-our-best-weapon.

  123. As noted by Quixote commentators, this is a form of suffering associated with a particular order of ‘temporal misplacement’, whereby what an actor purports to be ‘real’ is violently contested by many of his contemporaries to be an ‘illusion’. See The Sanctification of Don Quixote: From Hidalgo to Priest (Eric Ziolkowski eds., 1991). As Simon Leys has observed, this performance of the Don was faced with the ‘reality’ that: “…knights errant belonged to another age, long vanished. In the ruthless modern world, his obstinate quest for honor and glory was a grotesque anachronism. The conflict between his lofty vision and a trivial reality could only lead to an endless series of preposterous mishaps…” Simon Leys, The Imitation of Our Lord Don Quixote, The N.Y. Rev. (June 1998) (book review), https://www.nybooks.com/articles/1998/06/11/the-imitation-of-our-lord-don-quixote/.

  124. Baxi, supra note 66, at 158.

  125. Baxi, The Uncanny, supra note 75, at 104. Relatedly, on the tasks faced by receivers of temporal transmissions, including that of “attentive listening”, see Oishik Sircar, Professor of Pathos: Upendra Baxi’ Minor Jurisprudence, (in this Special Issue); and Walter Benjamin’s reading of Kafka’s parable of Sancho Panza. Walter Benjamin, Franz Kafka: On the Tenth Anniversary of his Death, in  Walter Benjamin, Illuminations, 108 (Harry Zorn trans., 1999). See also Ewa Plonowska Ziarek,  The Beauty of Failure: Kafka and Benjamin on the Task of Transmission and Translation, in Ewa Plonowska Ziarek, The Rhetoric of Failure: Deconstruction of Scepticism, Reinvention of Modernism, 123, 127–128 (1995).

  126. Baxi, supra note 25.

  127. Here I am following Van Doren, supra note 56. See also Leys, supra note 123.

  128. Amidst the (re-)emergence of expulsions as ‘solutions’, see Sanjib Baruah, Non-citizens and History, Frontline, (31 August, 2018), https://www.frontline.in/the-nation/article24702054.ece.

  129. See Van Doren, supra note 56.

  130. Upendra Baxi, Teaching as Provocation, in On Being a Teacher, 150, 158 (Amrik Singh ed., 1991).

  131. As Simon Leys, in his reading of Unamuno’s scholarship on Quixote, pithily puts it: “Because he converted Sancho, Don Quixote will never die.” Leys, supra note 123. See also Unamuno, supra note 60.

  132. See James Martel, A Divine Pedagogy? Benjamin’s “Educative Power” and the Subversion of Myth and Authority, 45 boundary 2, 171 (2018).

  133. It is useful to bear in mind Mark Van Doren’s superb reading that distinguishes Quixote’s mode of relating to the past and such fetishism. As he memorably observes of Quixote: “…imitation was his aim. Not impersonation, and not deception. Least of all would it be self-deception. He knew very well who he was. The only question was whether he would be able to act the part he had chosen.” Van Doren, supra note 56, at 5.

  134. This is a warning already expressed in one of his earliest pieces of scholarship. See  Upendra Baxi, Kautilyan Principles and the Law of Nations, 2 The Indian Y. B. of Int’l Aff. 230 (1967).

  135. See, e.g. Arnulf Becker, Mestizo International Law: A Global Intellectual History 1842–1933 (2014). This comprises the traditions of 'heroic' "men of passions",  who are deemed to be persons : "...who strongly will and accomplish something great, who unhesitatingly and unflinchingly pursue some goals and devote all their energies to those goals; men who have an insight into the ‘requirements of the time’, in what ‘is ripe for development’, and fall in with the needs of the age." Antonio Cassese, Five Masters of International Law: Conversations with R-J Dupuy, E Jiménez de Aréchaga, R Jennings, L Henkin and O Schacter, 252 (2011).

  136. Baxi, supra note 123, at 154 [emphasis added]. It is this orientation towards ‘doing’ that makes performances of transmission ritualistic. See Seligman, supra note 41, at 4. Also, as Debolina Dutta draws out in rich detail in her article, any ‘doing’ is never just a solitary activity but rather one which necessarily entails a forging of, and caring for, relationships. Dutta, supra note 87.

  137. See Karin Mickelson, Taking Stock of TWAIL Histories, 10 Int’l Community L. Rev. 355, (2008).

  138. In addition to several of the pieces contained in the current Special Issue see also Obiora Okafor, Marxian Embraces (and de-couplings) in Upendra Baxi’s Human Rights scholarship: a case study in International Law on the Left: Re-examining Marxist Legacies, 252 (Susan Marks ed., 2008); Khan, supra note 78.

  139. Achille Mbembe, Out of the Great Darkness: Essays on Decolonization (forthcoming 2019). These original essays were published in French and take their title, which I have quoted above, from an evocative phrase formulated by Frantz Fanon. See Achille Mbembe, Sortir de la grande nuit: Essai sur l’Afrique décolonisée (2010).

  140. Walter Benjamin, ‘Max Brod’s Book on Kafka’, in Walter Benjamin, Illuminations, 136, 142 (Harry Zorn trans., 1999).

  141. On the syncretic South Asian Sufi sect committed to ecstatic errancy - the Qallandari’s, see Saiyid Athar Abbas Rizvi, A History of Sufism in India: Volume I, 301 (1977). Thanks are due to Moin Nizami for guiding me on this. On Don Quixote’s taking up of the Sufi tradition, the ground-breaking work of Americo Castro still remains instructive. See Americo Castro, An Introduction to the Quijote, in An Idea of History: Selected Essays of Americo Castro, 77 (Stephen Gilman & Edmund L. King eds. and trans., 1977).

Acknowledgements

I would like to acknowledge the tremendous debt this article owes to Sundhya Pahuja, Shaun McVeigh, Peter Rush, Deval Desai, Lee Godden, Julia Dehm, Hilary Charlesworth, Adam Sitze, Philipp Dann, Jochen von Bernstorff, Andrea Bianchi, Vasuki Nesiah, Antony Anghie, Moin Nizami, Christopher Gevers, Sara Dehm, Cait Storr and Richard Joyce for their repeated acts of guidance and unlimited reserves of patience. A very special thanks is also due to my good friends and fellow editors on this volume, Debolina Dutta and Oishik Sircar, for their camaraderie, brilliance and perseverance. Above all, the author remains eternally indebted to Upen for his endless provocative gifts. This article is dedicated to the loving memory of Vijay Nagaraj.

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    Adil Hasan Khan

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Upendra Baxi, Book Review: International Law: R.P. Anand. International Courts and Contemporary Conflicts, 14 Int’l Stud.156, 158 (1975).

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Hasan Khan, A. For “…those who…lost their Utopias…but…still rebel…”: taking up Upendra Baxi’s Bequixotements in Times of Crisis. Jindal Global Law Review 9, 155–180 (2018). https://doi.org/10.1007/s41020-018-0075-1

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