B. S. Chimni’s “Relatively Autonomous” 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.

The first edition of B. S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches appeared in 1993, only a couple of years after the Soviet Union’s collapse and at a time when critical and feminist approaches to international law had only just begun to make their presence felt. This was a period when only a small handful of prominent international legal theorists self-identified as Marxists—and when few jurists from the “Third World” aside from Georges Abi-Saab and Mohammed Bedjaoui were read consistently in the West. Published in New Delhi and armed with a preface from Richard Falk, International Law and World Order was no ordinary contribution to international legal scholarship. Chimni’s aim was nothing less than the reconstruction of international legal theory, a project he undertook by way of sustained examination of a number of competing perspectives, from that of Hans Morgenthau to that of Grigory Tunkin.

The second edition offers the most detailed and systematic analysis of international law from a Marxist standpoint that is currently available. Enormously ambitious in scale and reach, it updates, revises, and enlarges the first edition, sweeping across a range of substantive topics and discussing a variety of different approaches to international law and international legal theory. While the first edition had its roots in Chimni’s early engagement with the “New Haven School” (hence the title of the book, which alludes to both Falk’s work and the “world public order” models espoused by Myres McDougal, Harold Lasswell, and Michael Reisman), the second edition deals at length with feminist international legal scholarship and the work of David Kennedy and Martti Koskenniemi as part of a broader effort to outline a new Marxist theory of international law, one that integrates insights from socialist feminism and postcolonial studies while absorbing the lessons of the indeterminacy debates of the 1970s, 1980s, and 1990s.

Given the breadth of this new edition, there are a number of different means of assessing Chimni’s “integrated Marxist approach to international law”. Arguably the most useful is by attending to Chimni’s discussion of classic debates about the relationship between what some Marxists (and enemies of Marxism) have characterized as the economic “base” and ideological “superstructure”. Rejecting all interpretations of the “base”/“superstructure” relation premised upon the notion that the economic is strictly determinative of all social relations, Chimni argues that Marx and Engels subscribed to a more nuanced view of economic and extra-economic dynamics, pointing in particular to a key passage in an 1890 letter by Engels. In that letter, which has long been regarded as a key piece of evidence that Marxism need not entail crude economic determinism, Engels writes as follows:

“According to the materialist conception of history, the ultimately determining element in history is the production and reproduction of real life. Other than this neither Marx nor I have ever asserted. Hence if somebody twists this into saying that the economic element is the only determining one, he transforms that proposition into a meaningless, abstract, senseless phrase.”

Chimni refers explicitly to this passage (alongside a number of others from Marx and Engels) at a key juncture in the book, using it to make a number of points, the most fundamental of which is that “law is not simply a reflection of the economic structure of society but is also in many instances constitutive of relations of production” (p. 450). Rather than adhering to a stark, hard-and-fast distinction between the economic “base” and ideological “superstructure”, with the latter functioning purely as a means of mystifying and legitimating the former, Chimni (like others) argues that law is endowed with significant constitutive power, inhering within and contributing directly to the contradictions and transformations of the economic relations that comprise the core of the capitalist mode of production.

It is on the basis of this appreciation of the constitutive power of law that Chimni develops his “integrated Marxist approach to international law”. Chimni claims that Marx and Engels, committed though they unquestionably were to the view that legal rights are insufficient to secure full human emancipation, recognized the value of legal reform initiatives, particularly for improving the conditions of the working class. While certainly not uncontroversial, this is an interpretation that finds significant support in classical Marxist texts, especially Marx’s famous discussion of the struggle around factory legislation in nineteenth-century Britain in chapter 10 of the first volume of Capital. It is also a view that has been shared, albeit in different ways and to different degrees, by a host of key Marxist thinkers, from Karl Renner, who attempted to demonstrate that legal forms do not always track socio-economic relations, through E. P. Thompson, who wrote hyperbolically of the “rule of law” as an “unqualified human good”, to Nicos Poulantzas, who theorized the state as the material “condensate” of ongoing struggles between different classes and class fractions. Chimni relies extensively upon these and other thinkers, arguing that Marx and Engels did not press their critique of formal equality in order to repudiate law, but simply in order to demonstrate the limits of an exclusively rights-based strategy of effecting social change, which could not help but remain within the juridico-political framework of capitalism.

It is not hard to see how this stance would yield a more generous conception of international law than the kind that is typically found in many other critical (and Marxist) theories. First, inasmuch as international law is understood as a “relatively autonomous” field with its own internal logic, incapable of being reduced to the extra-legal pure and simple, it must, Chimni contends, also be understood as a site of contestation, one that is not always and necessarily structured in favour of the “North”. Second, to the extent that law is something other than a merely epiphenomenal by-product of the economic, the complex role that gender and race play in the formation, operation, and transformation of law must be examined at close quarters. Hence Chimni’s extended engagement with feminist theories of international law as well as a variety of different forms of postcolonial theory (which he, unlike Vivek Chibber and other Marxist critics, finds to be useful). Hence also his insistence that the “logic of capital” must be analyzed in combination with the “logic of territory”, as well as the “logic of culture”, the “logic of nature”, and the “logic of law” (e.g. pp. 31-35, 504-506).

All of this makes for a wide-ranging and deeply informed treatment of international legal theory. That said, the book is not without its blindspots and shortcomings. First, it is surprising that Chimni should continue to feel a residual fascination with the “New Haven School”. A sustained review of a movement that sought to enshroud US foreign policy in the garb of Cold War social science may have been understandable in 1993, but the sympathy Chimni continues to display for key elements of this idiosyncratic form of “policy science” is not in keeping with even the sort of capacious Marxism he seeks to develop. To be sure, scholars like McDougal and Lasswell sought to dilute conventional positivist distinctions between “law” and “politics” (so much so that, as Chimni himself notes, they arguably emptied the concept of law of any content). But if this is Chimni’s principal reason for examining their “policy science” at great length, one wonders whether his energy might better have been directed elsewhere. Second, while Chimni repeatedly invokes the Third World Approaches to International Law (TWAIL) movement, it is not entirely clear how he situates himself within (or with respect to) it. As he acknowledges, “TWAIL” has long served as a kind of umbrella category, encompassing a range of different and often conflicting theoretical and ideological traditions (p. 17). Yet most of the work associated with TWAIL during the past three decades has turned not to Marxism but to post-structuralism for inspiration. Chimni rightly points to the need to integrate race into any general theory of international law. It is not evident, though, why he should feel the need to draw upon the preponderantly post-structuralist approaches to race (and “culture”) that have found a home in TWAIL—or even, for that matter, how far it is possible to absorb such approaches into a historical materialist account of international law. After all, from C. L. R. James to Angela Davis, Amílcar Cabral to Vijay Prashad, there is no shortage of Marxists (with much to say about international law and politics) who pay close attention to questions of race and who train their lens upon the extra-European world. One cannot help but wonder whether there is really a need to “integrate” postcolonial studies when such resources are already available within the Marxian tradition. The question is an open one, and does not admit of an easy answer, but it needs to be engaged directly for Chimni’s project of “integration” to bear fruit. Third, although many readers will applaud Chimni’s desire to work creatively with traditional Marxist frameworks, I must admit that I found it difficult to understand what precisely is specifically Marxist—“integrated” or otherwise—about the “third possibility” that the book proposes in its concluding pages. In these pages (pp. 545-550), Chimni marshals the recent work of Fredric Jameson in order to argue that many regard both socialism and capitalism as discredited, and that we should therefore experiment with “an intricate mix of ownership patterns” premised upon “a balance between private and public interests” and a recognition of the value of markets for the “provision of information, the efficient allocation of resources, and the creation of incentives for innovation” (p. 548). Such remarks are disappointing, and a rather odd way to conclude a book dedicated to Marxist analysis.

When all is said and done, the second edition of International Law and World Order is a commendable achievement—a comprehensive Marxist rethinking of international law from what the author himself describes as a “Southern” perspective. Chimni’s “integrated Marxist approach” aims to capture the “relative autonomy” of legal structures while anchoring these structures in concrete social relations. In that sense, it marks a radical departure from the work of China Miéville, who has enlisted Evgeny Pashukanis’ “commodity-form theory” for a full-spectrum assault on international law. While clear about law’s limitations, not to mention its indebtedness to capitalism, Chimni does not reject specifically legal efforts altogether, presenting them instead as necessary, if ultimately insufficient, means of countering injustice and inequality. Readers will disagree on the analytical merits and political tenability of that position, but there is no doubt that International Law and World Order showcases the vitality and relevance of Marxist international legal theory today. We are fortunate to have this new edition; it will be studied and debated for years to come.