Blog of the International Journal of Constitutional Law

ICON Volume 19, Issue 3: Letters to the Editor

[Editor’s Note: We are reprinting here the two letters to the editor in ICON’s latest issue, Volume 19, Issue 3.]

Letters to the Editors

The population and the individual

Dear Editors,

I was very pleased to read Maxime St.-Hilaire’s Reply to my 2018 article, “The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance” in this issue of I•CON (at 000). As well as being a valuable contribution in its own right, his Reply also provides me with the opportunity to make a clarification, and I have done so in the form of a Rejoinder on the ICONnect blog.

In summary, my argument is that the value of Foucault’s concept of governmentality is that it allows us to define and describe the results which follow from attempts to govern purposefully (or “manage”) in circumstances of complexity. Since human rights are often both the justification for purposeful governing and a tool for doing so, and since the circumstances in which this is done are highly complex, this makes governmentality a useful lens through which to examine the sociology of rights.

I describe what is happening in the global human rights sphere as following the pattern which Foucault implicitly identifies in the development of the state and the church before it: a felt need to achieve certain purposes on the part of the “governor,” where the complexity of the underlying phenomena makes it impossible to achieve the purposes in question through law-making alone (which is essentially true in all cases). This results in attempts to “conduct conduct” indirectly or “at a distance”, and itself produces a proliferation of regulatory “tactics”, many of which are not consciously created. 

The state was in early modernity “governmentalized”, as Foucault put it, through the need for the incipient state to compete with its rivals and hence improve the health and vitality of its population, combined with the impossibility of doing so simply through making laws. The application of governmental reason, resulting in the proliferation of diverse and diffuse tactics for “conducting conduct”, followed. This mirrored earlier developments in the Christian pastorate, which faced the same sort of problem: how to save souls under conditions of complexity, with governmental reason the solution. What we are now seeing is a “governmentalization of global human rights governance”, as I call it: the application of governmental reason, once again, giving rise to a vast array of methods for “conducting conduct” (including the human rights audit), owing to the impossibility of achieving human rights’ perceived purposes through law-making alone. This analysis is given much more detail in my recent monograph, Critical Theory and Human Rights: From Compassion to Coercion.

Yours Sincerely,

David McGrogan

Associate Professor of Law

Northumbria Law School

Unequal impact

Dear Editors,

Thank you for your recent insightful editorial on what journals can do for scholars with care responsibilities (  I would offer three points in reply.

First, I strongly commend you for suggesting that journals facilitate scholarship in shorter form: book reviews, or shorter commentaries, that scholars can more easily complete when tied down with work/life challenges due to the pandemic.  I would add a suggestion to consider case notes.  This is a practice that, as you may know, tends to be limited to student comments in most American law reviews, but has long been a practice in Canadian legal scholarship.  In my own research, I often find the greatest insights from case notes by prominent Canadian legal scholars, rather than in their “brilliant”, overarching theoretical work. 

In this regard, your suggestion brings to mind a Harvard Law Review article by Lani Guinier on how minority oppression is often a “canary in the coal mine” and that responses to inequality may actually be reforms that make everyone better off.  This innovation would not only benefit those unequally suffering from the pandemic but others as well.

Second, regarding your suggestion that authors include a cover letter that gives them an opportunity to inform the editors of their own personal challenges in doing scholarship during the pandemic: implicit is that this is a relevant factor to be considered in making publication decisions.  My own view is that this too is a fine idea for those most part, because we all ought to acknowledge that the vast majority of scholarship actually provides marginal benefit to the academy and the world.  As such, I humbly acknowledge that if a prestigious journal were to prefer a submission from a Haitian law professor who is a single mother of three over a work I submitted, it is difficult to claim that the world, or even the academy, is much worse off for it.  (Indeed, editors of more prestigious journals might, more broadly, adopt a few favoring junior scholars rather than senior ones.  A publication in a prestigious publication can significantly change the career of a junior scholar for the better.  The truth is that whether a comparative law piece I write lands in the Am. J. Comp. Law or the Penn State J. L. and Int’l Affairs is not really going to change things that much for me at this point.)

Third, however, is that editors must exercise this discretion with care, and not extend it to the point where the extraordinary submission—one that is in the minority of articles that actually makes a significant contribution and provides insights that many might not otherwise have—is rejected because its author is a privileged white First World cis hetero male.  I would respectfully suggest that journal editors are trustees, and their principal goal is to further knowledge, not redress all the world’s inequalities.  As noted in my 2nd point, I do not think that considering a scholar’s personal situation is usually a problem, because there is no real conflict between trying in our own small way to redress inequalities and the editor’s principal goal of furthering academic insights.  But where there is a conflict, I would respectfully suggest that the journal editors’ personal desire to feel good about themselves and their own personal contribution to global inequality needs to be sacrificed.

Thanks in advance for considering these views.

Stephen F. Ross

Professor of Law and Lewis H. Vovakis Distinguished Faculty Scholar

The Pennsylvania State University, USA


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