Misrecognition in legal practice: The aporia of the Family of Nations

Abstract

This article discusses the concept of misrecognition to analyse international legal ordering in the practice of colonial treatymaking. As critical interventions to the debate on recognition have made clear, recognition is about exclusion as much as it is about inclusion. The most obvious example is the nineteenth-century applications of the standard of civilisation, where the European Family of Nations introduced the criterion of 'civilisation', which excluded non-European entities as sovereigns and legitimised their colonisation. But at the same time colonial treaties included the 'savage rulers' as signatory powers, and thus legal persons within the international legal order that at once excluded them. This contribution to the Special Issue discusses these treatymaking practices as a practice of misrecognition; not because it misrecognises some natural, essential, or true identity of the indigenous entities, but as a misrecognition of the international order's own conditions of possibility through practices that simultaneously constitute that order and undermine its constitutive conditions. A rereading of Hegel's famous master-slave metaphor through the concept of misrecognition sheds light on the reversals and contradictions of the colonial legal enterprise and reveals the aporia of the contemporary international legal order by showing the void at its heart.