A Marxism for International Law

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

There are some books on my shelves I can remember opening for the first time. I remember holding them, flipping through pages, scribbling a note on the inside cover, using them as improvised paperweights, or lending them to a colleague or a student. I remember a lot of things about them. But I do not remember their contents.

Not all books are created equal. Some you only put on your shelves, but never, to use Conan Doyle’s famous metaphor, in your “brain’s attic”. You get them, you read them, and then, like the latest Nicolas Cage film, you essentially forget all about them. Beyond some general concept of what field or question they were supposed to cover, you can scarcely remember anything about their actual argument, the specific points they tried to make, the reasoning they constructed, the particular examples and illustrations they presented.

This is not, of course, in any way the fault of the author. No one ever sets out to write a forgettable book. Nor is it, though, really, the fault of the reader. No one can really be blamed for trying to keep their “brain attic” tidy. Managing one’s memory archives, let us face it, is a highly important component of good scholarly practice.  We have all been there: sooner or later you just reach that tipping point—call it overexposure or discursive saturation—after which everything you read starts to look familiar. That book or article you are now struggling to recall may be a product of many years of hard, honest work. But is it really your fault that what it had to say, in the end, was so unoriginal? Everyone knows how these things work: you open a book, read through the first pages, and a quiet sense of déjà vu slowly creeps in. Hasn’t all this already been said before? Didn’t somebody else argue the same point years ago? Sooner or later it all just turns into a blur.

But then again, not all books are created equal. There are some that you get to experience in a completely different manner—as distinct intellectual events, as game-changers that define the course of your intellectual biography. There may only be one or two such books in your library or more than twenty; it does not matter. You always remember a lot more about these books than any others. You remember them, above and beyond everything else, for the fact that they become for you a point of continuing reference. They are there, with you, at all times, wherever your thought goes, whatever you research or write about. They are there, with you, because they have taken pride of place in your “brain attic”. Because however much you may disagree with any one individual aspect of their argument or narrative design, for you they always remain a source of knowledge, a model for emulation, a never-ending lesson to learn from.

Over the last thirteen years, International Law and World Order (ILWO) has become one of such lessons and models for me. It brings me great satisfaction to see it come out in a new edition, to know that once more it is available in print and can be accessed by a new generation of international law students.

I first came across ILWO in the summer of 2004. A medium-sized, hardbound volume printed by SAGE in New Delhi in 1993, it was not an easy book to find. But I was determined. Earlier that year EJIL had brought out Professor Chimni’s article on the imperial global state in the making. To say that I found that text inspiring or thought-provoking would be a drastic understatement: it still remains one of my all-time favourite examples of critical legal writing in international law. When I learned that somewhere “behind” that article there also existed a book written by the same author, there were no two ways about it. I had to get hold of it.

My quest came to fruition a few months later. The first impression I had of ILWO, however, was not, to be honest, very positive. What I found in ILWO was very different from what I had anticipated. Instead of a bold, sweeping, unflinchingly interdisciplinarian analysis of the contemporary world-historical conjuncture, I was confronted with a fairly standard example of traditional legal-theoretic commentary: between its forays into Wittgenstein and reflections on the role of written rules, ILWO turned out to be a relatively conventional exercise in “critique and compare”-style discussion of the various academic writings produced by four relatively important scholarly figures (Hans Morgenthau, Richard Falk, Myres McDougal, and Grigory Tunkin). To be sure, the intellectual angle from which this discussion was conducted did have an unmistakable Marxist genealogy. But the actual genre of the inquiry—a scholarly commentary that targets the arguments presented in other scholarly commentaries—as well as the broader precept behind it—to show how each of these other commentaries in one way or another misses the point—seemed unmistakably conservative. To write about scholars instead of ideologies, narratives instead of the relations of production, the excesses of the Kelsenian project rather than the forms and modalities of neo-imperialist oppression—since when was this supposed to be what Marxists do?

Not that there was anything very surprising about that. The whole concept of writing a scholarly monograph is itself, at its root, a deeply conservative proposition. If one takes Marx’s eleventh thesis on Feuerbach at all seriously, the only truly progressive scholarly agenda worth pursuing is one that is aimed directly at changing the world of international law—probably by doing something disruptive to it—not one that only seeks to interpret some of its more abstract theoretical representatives. Or at least that is how I figured things worked that first time I read ILWO.

One’s sense of one’s social and institutional surroundings changes as one grows older. When the initial reaction wears off, you get to see the context clearer.

Being determines consciousness. Practices determine politics. ILWO is a text written by—and for—international law academics. Legal academia is a fundamentally middle-class field of practice. No proletarian revolution has ever been triggered or inspired by an act of legal-academic writing. But in the house of progressive politics, there are many mansions. Triggering and inspiring revolutions is not the only thing that one can place on the agenda. Some struggles are a lot more modest in scope. Some battles can only be fought “locally”: within one’s workplace, one’s profession, one’s disciplinary field.

To be able to show that the Marxist tradition has something of relevance to contribute to the world of the international legal debate, is no mean achievement, especially when the global proletarian revolution no longer seems to be something that is just around the corner (as it may have done to Eugene Korovin in the 1920s) and the life of international law, taking place as it always does in a Cover-esque field of global pain and death, continues to be structured by those very theoretical abstractions that the proponents of the eleventh thesis insist one should move beyond.

At its root, ILWO still remains an exercise in traditional legal-theoretic commentary: the entire first section of the book is essentially taken up by a discussion of why explicitly theoretical studies are important and useful. And yet there is also a great deal that has changed between the first and the second editions.

The Marxism chapter has grown to 110 pages. With the entire section on the Soviet tradition (Tunkin) having been removed, it revolves now around the idea of explaining and promoting an “integrated Marxist approach to international law”, a theoretical sensibility which is simultaneously presented to be a direct outgrowth of the TWAIL movement (p. 15) as well as a formal analytical expression of the general concept of intersectionality (p. 2). Two new chapters have been added, one about feminist international law scholarship, the other about the New Approaches to International Law movement (which in the original text was allocated only one brief footnote). The feminism chapter is limited primarily to the work of Hilary Charlesworth and Christine Chinkin. The NAIL chapter focuses exclusively on the writings of David Kennedy and Martti Koskenniemi. Somewhat surprisingly, perhaps, both of these scholars’ projects are presented as a direct continuation of the New Haven tradition.

Where does one place ILWO in the broader field of international legal theory today? For good or ill, for the greater part of the last twelve years the dominant point of reference for the concept of “a Marxist theory international law”, especially among the non-Marxist international law contingent, has been China Mieville’s brilliant but in many ways rather limited excursus into legal nihilism. In showing its readers the possibility of a fundamentally different way of bringing Marxism and international law together, ILWO, I would like to suggest, offers a much-needed correction to this tradition.

By explicit declaration as well as numerous “practical” illustrations, ILWO proves over and over again that far from having nothing more to say about international law other than that it is a cynical cover-up for imperialistic violence, the Marxist tradition can, in fact, make a very complex, nuanced, and rich contribution to the discipline of international legal studies, that it can teach us something valuable not only as moral agents or as ideological actors but also as international lawyers and legal scholars. And the significance of this cannot be underestimated.