¹ Anthony Giddens has argued that reflexivity—which he traces back to the Cartesian cogito—is the quintessential modern trait. A Giddens, Modernity and Self-Identity (Polity, Cambridge, 1991).

² D Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, Princeton, 2004) xiv.

³ G Agamben, State of Exception (University of Chicago Press, Chicago, 2005).

⁴ The locus classicus is M Horwitz, The Transformation of American Law, 1870–1960 (OUP, Oxford, 1992), although David Kennedy's main debt here is likely to Duncan Kennedy.

⁵ See generally D Kennedy, A Critique of Adjudication {fin de siècle} (Harvard University Press, Cambridge, MA, 1997). Also D Kennedy, ‘Three Globalizations of Law and Legal Thought, 1850–2000’ in Trubek and Santos (eds), The New Law and Economic Development (CUP, Cambridge, 2006) (discussed below).

⁶ There is an irony here in that Agamben grounds his own account of homo sacer—the man stripped of rights under a burgeoning sovereign—in Foucault's notion of biopolitics, a power grounded not in territory but in control over persons. See also M Foucault, The History of Sexuality: vol 1 (Penguin Books, London, 1981) 140–4.

⁷ M Foucault, ‘Two Lectures’ in M Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Pantheon Books, New York, 1980) 105.

⁸ ibid 107.

⁹ Kennedy's embrace of Clausewitz too hints at a Foucauldian agenda. In a near inversion, Foucault at one point models power as ‘war by other means’—that is, as the repression of social conflict, precisely the picture of sovereignty painted by Michael Hardt and Antonio Negri (see below, text at footnote 12). Foucault, however, is dissatisfied with this model and seeks to go beyond it, as Kennedy does here by re-inversion. Foucault (n 7) 90–1.

¹⁰ Kennedy again seems to deliberately confound when he claims that ‘the common impression of more unilateral presidential authority in foreign affairs is simply not accurate’ (20). This is disingenuous. The impression is rather of more unilateralism in foreign affairs and more presidential authority at home.

¹¹ p 1: ‘People write about the wars of their own time and their own country. The wars of my time and my country—the America of the “postwar” half-century—have been varied.’

¹² M Hardt and A Negri, Empire (Harvard University Press, 2000), xiii–xiv.

¹³ ibid 14.

¹⁴ Presumably with a view to the longer durée, Panitch and Gindin illustrate their case with ‘realists’ (Richard Haass, Zbigniew Brzezinski) rather than neocons.

¹⁵ The authors make much of Thomas Jefferson's statement that ‘no constitution was ever before as well-calculated for extensive empire and self-government’. But Jefferson hardly meant ‘capitalism’ by ‘empire’.

¹⁶ As Nehal Bhuta puts it in this collection, the ‘invasion of Iraq was not jurisgenerative in any direct sense’ (193).

¹⁷ Unless one assumes, with Thomas Powers, that the Iraq invasion was ‘a gamble … of the sort that makes or breaks empires’—and broke it. New York Review of Books (27 Sept 2007) 36.

¹⁸ Both, on Bhuta's reading, drew upon ideals that claim to be constitutive of law and so resist being bound by it. When the UK and US notified that a ‘belligerent occupation’ was underway, the practical intent was to shift their presence into a ‘transformative occupation’. For Bhuta, the Iraqi expedition has bogged down in this moment of birthing a legitimate sovereign that will in turn validate the new legal order.

¹⁹ One considerably more sophisticated reading of the United States as ‘republican imperium’—that of Peter Fitzpatrick—is premised in particular on the US as the world's ‘first nation’ and the nation form itself as the ‘carrier of imperium’. See P Fitzpatrick, ‘“Gods would be needed …”: American Empire and the Rule of (International) Law’ (2002) 16 Leiden Journal of International Law 429. See also R Wade, ‘The Invisible Hand of the American Empire’ (2003) 17 Ethics and International Affairs 77.

²⁰ A text rapidly becoming the locus classicus on this subject is A Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, Cambridge, 2005).

²¹ President of the United States of America, National Security Strategy of the United States of America (2006) online at <http://www.whitehouse.gov/nsc/nss/2006/nss2006.pdf>.

²² H Zangana, ‘The Three Cyclops of Empire Building: Targeting the Fabric of Iraqi Society’ in Empire's Law. She does not suggest, however, that there are no ‘authentic’ civil society voices in Iraq.

²³ T Purvis, ‘Life Signs in an International Rule of Law’ in Empire's Law.

²⁴ Again, the frame of ‘empire’ proves rather an obstacle to theory than an aid, re-imposing ‘national interest’ over a complex combination of rivalry and strategic coordination within a shared register.

²⁵ One could also imagine a narrative that views legal intervention primarily as a Cold War measure—a reading that would not, of course, be incompatible with that suggested here.

²⁶ Perhaps no book better captures this process than Lord Malcolm Hailey's magisterial African Survey (1936). See, for a more recent historical account, T Mitchell, Rule of Experts: Egypt, Techno-politics and Modernity (University of California Press, Berkeley, 2002).

²⁷ M Galanter and D Trubek, ‘Scholars in Self-Estrangement: Some Reflection on the Crisis in Law and Development Studies in the US’ [1974] Wisconsin Law Review 1062.

²⁸ A large and growing body of work focuses on evaluating the adequacy or otherwise of rule of law models in achieving its own stated objectives. For a recent roundup see, T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace, Washington DC, 2006).

²⁹ Scott Newton writes: ‘Scholars are once again in self-estrangement as they rediscover the perils of ethnocentricity, neglect of context and the discounting of difference’ 194.

³⁰ The embrace is not, of course, unqualified. Kerry Rittich writes: ‘So far, their [ie, the IFIs'] efforts to promote market-centred modes of social inclusion and equality are speculative at best and suspect at worst’, NLED 247.

³¹ For an excellent account of the self-placement of actors within the field of transnational law reform, see Y Dezalay and B Garth, The Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States (University of Chicago Press, Chicago, 2002).

³² D Kennedy, ‘Political Choices and Development Common Sense’ 124. For contrast see Wade (n 9).

³³ The same language has an ambiguous currency in ‘recipient’ countries, which itself is worthy of study.

³⁴ In their respective papers in New Law and Economic Development.

³⁵ H Arendt, The Human Condition (The University of Chicago Press, Chicago, 1958) 32–55.

³⁶ D Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’ 70–1.