Foucault emphasises that conflict is actually routine and commonplace. It is the structure of society. To engage any desire for things to be different, to engage meaningfully with politics, is to engage in conflict.
The world is riven by conflict. The recent events in Ukraine are just the most recent example. The value and necessity of conflict should not be subsumed within the entirely understandable desire to prevent violence. I want to argue that peace, as a goal, is not something worth striving for.
It is difficult to comment critically on the topic of law, negotiation, and conflict. Most comments and discussions never shy away from recognising the limits of law in conflict situations. Furthermore, the politics inherent in the negotiation of peace have also been covered very well, and from a number of different angles. One thing which hasn’t been considered critically though is the subject of conflict itself. Conflict has in fact come in for a bit of a bad rap. Here I want to offer three perspectives on the issue of conflict and negotiation, to try and speak in favour of conflict.
I begin with two assumptions, that there are no universals and that the issue addressed is human co-existence. By no universals I mean that there are no right answers or correct forms in the area of politics, particularly when looked at in the context of conflict and post-conflict legal regimes. By the issue addressed, I mean that the ‘problem’ of conflict is very broadly the ‘problem’ of human coexistence, and as such to limit the focus to armed conflict either between states or within states is to prioritise a certain form of conflict for consideration.
The three thoughts I have on conflict are these: firstly, that conflict is pervasive in human co-existence, secondly that conflict exists within the privileged sphere of the peace negotiation, and thirdly that peace is not a good thing, and should be opposed. I will try to illuminate these thoughts by drawing on three different texts, from Foucault, Miéville, and Shakespeare.
In an interview in 1976 Foucault, in answer to a question about the insight gained from his inversion of Clausewitz’s formula to read ‘politics is the continuation of war by other means’, Foucault replied:
As soon as one endeavours to detach power with its techniques and procedures from the form of law within which it has been theoretically confined up until now, one is driven to ask the basic question: Isn’t power simply a form of warlike domination? Shouldn’t one therefore conceive of all problems in terms of relations of war? Isn’t power a sort of generalized war that, at particular moments, assumes the forms of peace and the state? Peace would then be a form of war, and the state a means of waging it.
A whole range of problems emerge here. Who wages war against whom? Is it between two classes, or more?
Is it a war of all against all? What is the role of the army and military institutions in this civil society where permanent war is waged? What is the relevance of concepts of tactics and strategy for analysing structures and political processes? All these questions need to be explored.
This captures quite neatly the themes Foucault developed in his 1976 lecture series, published as Society Must be Defended. Here Foucault elaborated his thesis that society is structured around conflict, and that we must acknowledge this war, and engage in it. As Foucault puts it:
we are at war with one another; a battlefront runs through the whole of society, continuously and permanently, and it is this battlefront that puts us all on one side or the other. There is no such thing as a neutral subject. We are all inevitably someone’s adversary. […] Why do we have to rediscover war? Well, because this ancient war is a permanent war. We really do have to become experts on battles because the war had not ended, because preparations are still being made for the decisive battles, and because we have to win the decisive battles.’
Foucault does not just use history to argue his thesis, he also deploys history as a tactic in this ongoing war. History is used as a weapon.
Of particular relevance to the topic of peace negotiations and the resolution of conflict is the point that ‘Law is not pacification, for beneath the law, war continues to rage in all the mechanisms of power, even in the most regular. […] We have to interpret the war that is going on beneath peace; peace is itself a coded war’. In the discourse of law, negotiation and conflict, conflict is treated as the other, as outside and external. Law and negotiation act on the unknowable and irrational conflict, as if taming a wild animal. Foucault emphasises that conflict is actually routine and commonplace. It is the structure of society. To engage any desire for things to be different, to engage meaningfully with politics, is to engage in conflict. The push to end conflict and restore peace is false, conflict cannot be ended. We can engage productively with the idea that conflict is pervasive. The negotiation, or peace treaty, must retain the ability to accommodate conflict of the sort which society consists of. The attempt to end all conflict and impose a lasting peace only delays the eruption of those desires which have been suppressed by the supposed ultimate resolution of the war.
In China Miéville’s novel Embassytown, an alien planet is home to a species for which there is no distinction between thought and speech, the Ariekei. These aliens cannot speak creatively, they cannot lie. Put very briefly, humanity attempts to control these aliens by making them addicted to a drug only they can supply: lies. The human colonisers dominate the aliens by lying to them in their language. A group of aliens attempt to resist by deafening themselves. For a species for which thought and language are the same thing, this amounts to being unable to think as well as to speak. Near the end of the novel, an alien who has managed to break the link between thought and speech, and so has learnt to speak creatively, manages to teach a deafened alien that it can think and communicate with gestures.
Signifying Spanish [one of the Ariekei] could speak through gesture now. For our captive [a deaf Ariekei] that no longer had a name, perhaps the strangeness was greater. It had thought that without words, it had no language. Its comrades communicated with each other, never knowing they did, not across the chasm with untorn Ariekei; and mostly what they expressed to each other was the very hopelessness that made them believe they were incommunicado.
But in the panic of the attack and our escape, it had understood shove-and-point instructions to flee. It had watched Bren, YlSib, and me speak and listen to each other with gestures for stress and clarity. The rest of the Absurd army never had to reflect on these behaviours. Spanish had learnt it could speak without speaking: the Absurd had learnt that it could speak, and listen, at all.
“They were yanking it around,” Bren said. “It was impossible for it not to know what they meant: they were shoving it and pointing the same way. They made it obey them. Maybe you need violence for language to take.”
“Bren,” I said. “That’s crap. We were all running the same way. We were all trying to get out. We had the same intentions. That’s how it knew what we were doing.”
He shook his head. Formally, he said, “Language is the continuation of coercion by other means.”
“Bullshit. It’s cooperation.” Both theories explained what had happened plausibly. I resisted, because it felt trite, saying that they weren’t as contradictory as they sounded.
There are a couple of observations I want to make from this text, which relate to the idea of conflict and negotiation. The first is the idea of needing violence for language to take, and the second the idea that speaking is conflict as well as cooperation. This image of needing violence before being able to understand seems very relevant to the idea of conflict and conflict ending. Where there is no opportunity to engage in conflict, to put forward your views and desires, to struggle against the views and desires of others, then you are silenced. This sort of silencing leads to violence. It is banal to suggest that a riot is the voice of the voiceless. But the idea of stopping conflict, by reaching agreement and peace, and the violence that does to those who would oppose, gives them no voice. This exclusion of silencing is particularly obvious in the realm of conflict negotiation, where there is no representation of certain parties, such as a “terrorist” group, or an ousted government.
The idea of conversation, or speech, as coercion and/or cooperation is also relevant for negotiation. The negotiation itself can and should be viewed as a war, as a struggle, as a conflict. If the conflict is not openly engaged with then again we have the harsh imposition of a right answer and this silencing. Cooperation and coercion are not so different, so where the conflict can exist in the institution of negotiation then it can continue in a productive, even non-violent way. These are the different levels of conflict which can be aimed for, once the existence of the conflict is recognised. Violence is the only choice when there is no ability to speak, and so no ability to think. But conflict can, perhaps, be raised to the level of cooperation and conversation. Language is itself a form of war.
The final text I want to refer to is Shakespeare’s Romeo and Juliet. In the very first scene of the play, Benvolio, a Montague, comes across a fight between men from the two Houses. He intervenes to stop them, when Tybalt arrives, and confronts him.
BENVOLIO: Part, fools!
Put up your swords; you know not what you do.
Beats down their swords
TYBALT: What, art thou drawn among these heartless hinds?
Turn thee, Benvolio, look upon thy death.
BENVOLIO: I do but keep the peace: put up thy sword,
Or manage it to part these men with me.
TYBALT: What, drawn, and talk of peace! I hate the word,
As I hate hell, all Montagues, and thee
Here again, there are a couple of ideas to pick up. First is quite simple, the figure of Benvolio, whose name means ‘good will’ or roughly ‘peace maker’, standing with his sword drawn demanding peace. This image of a figure demanding peace with his sword drawn again concentrates attention to the violence in the demand for peace. It is not much of a stretch to see the “international community” stood sword in hand demanding peace from the “heartless hinds”, the less important and noble. The phallic nature of this image, and the question of the (im)potency of the threat needs merely to be alluded to. The second point is to elaborate briefly on why object to peace.
Peace is a dream which retains its potency. It is the dream of, in Foucault’s words, ‘the philosopher who belongs to neither side, a figure of peace and armistices who occupies a position dreamed of by Solon and that Kant was still dreaming of.’ This figure is ‘between the adversaries, in the centre and above them, imposing one general law on all and founding a reconciliatory order’. One example of this position is taken by Habermas, when he writes of the peace brought by liberal democracy, free trade, and the global public sphere. This prescription for peace recasts intervention as a police activity, correcting wrongdoers and imposing order. Habermas adopts Kant’s ‘Perpetual Peace’ as a limit. The limit of the constitution is liberal, the limit of the economy is global free trade, and the limit of the law is a public cosmopolitanism. These limits are, to return to Foucault, ‘given to us as universal, necessary, and obligatory’, but are actually ‘singular, contingent, and the product of arbitrary constraints.’ This peace is just one sort of peace, one sort of order imposed.
Drawing these three strands together, this is my attempt at providing a useful critical insight into the discourse of conflict, law and negotiation. Conflict is everywhere, in all sorts of forms. Conversation is itself a form of conflict. When there is no opportunity to speak, then violence quickly becomes the only form available. Peace and law are both violence of a sort, and the imposition of peace and order, of a type of historical limit, is a violence which produces violence.
For negotiation and conflict resolution to be productive, one final thought seems relevant. Koskenniemi has discussed the idea of kitsch in international law thus:
International Law is burdened by kitsch. What kind of kitsch? Well, for example, jus cogens and obligations erga omnes, two notions expressed in a dead European language that have no clear reference in this world but which invoke a longing for such reference and create a community out of such longing. Instead of a meaning, they invoke a nostalgia for having such a meaning, or for a tradition which, we believe, still possessed such meaning. They are the second tear we shed for the warmth of our feelings.
Peace negotiations must not be kitsch. The peace/order ‘we’ want is not the silenced desire which provoked violence in the first place. The opportunity to speak/think/struggle must be retained.
Henry Jones is a Lecturer in Law at Durham University
Paper originally delivered at a workshop hosted by Law and Global Justice at Durham entitled ‘Law and Negotiation in Conflict: Theory, Policy and Practice’, 20–21 March 2014.