Concluding Response from Professor Chimni: International Law and World Order

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.

It is a great honor to have a set of responses to the second edition of my book International Law and World Order: A Critique of Contemporary Approaches (ILWO). What is more these represent empathetic and generous readings of my work. Yet the responders have not shied away from asking some hard questions. It has given me an opportunity to clarify my views on many issues. Three of the responses are devoted to the chapter on the Integrated Marxist Approach to International Law (IMAIL) read in conjunction with the introductory chapter which outlines the theoretical framework of the book. One contribution comments on the chapter on feminist approaches to international law (FtAIL). The responses also touch on other matters that include the reason for my detailed consideration of the New Haven approach. Instead of responding separately to each individual response I make observations on some themes and questions that the responders helpfully flag. Since this is not the occasion to offer a detailed response I will satisfy myself with some bare observations. These are made under the following heads:

Structure of the Book

Theoretical Issues

International Rule of Law

Alternative Futures

Structure of the book

For those who have not had the occasion to peruse the book it may help to note that it has chosen to articulate IMAIL through a critique of the principal contemporary approaches to international law. Only some fundamental themes, ideas and issues pertaining to IMAIL are dealt with in the chapter devoted to it. I mention this because the structure of the book has determined the way IMAIL has been elaborated. It has left certain gaps in the book that can be addressed only by a direct and systematic account of IMAIL.

The reason for writing the book in the form of a critique of contemporary approaches is that it was important to position IMAIL vis-à-vis others to showcase its relevance and strengths. The same response goes to the question as to why a chapter has been devoted to the New Haven approach to international law. The policy oriented approach is among the few that offer a systematic and comprehensive account of international law. The New Haven approach has also been presented as a counter narrative to the Marxist approach. It is no accident that Michael Reisman compares the friendship of Myres McDougal and Harold Lasswell to that of Karl Marx and Frederick Engels. A critical engagement with it helps to contrast and pinpoint the relative superiority of IMAIL. Furthermore, it has been observed by two of its adherents that the New Haven approach can accommodate TWAIL as there is a certain commonality between the two approaches (pp.144-145). You can get a glimpse of what is possible by looking at the progressive writings of Richard Falk—a separate chapter is devoted to his work– who is perhaps the true inheritor of the New Haven approach of McDougal and Lasswell. At the end of the day the ambition of TWAIL or IMAIL is to become the most acceptable theory of or about international law. If that is the case it is important to spell out its relative merits vis-a-vis other approaches. Finally, an engagement with the other approaches helps to draw on valuable insights offered by them.

Theoretical Issues

A general criticism of the chapters on IMAIL and FtAIL (feminist approaches to international law) is that these have not sufficiently attended to some fundamental theoretical questions relating to gender and class. It has been suggested that there is no serious effort to locate and trace the categories class and gender to the structure and form of capital or/and international law. For instance, the theme of capitalism and international law could have been further elaborated using the work of Evgeny Pashukanis on commodity form approach to international law. In short, more space should have been devoted to clarifying and elaborating some basic concepts and categories relating to feminist and Marxist views. Finally, there is some question about my use of postcolonial theory when Marxist sources would have been more appropriate and that I have presented NAIL as a direct continuation of the New Haven tradition. I will try and address these points briefly.

Feminist approach

The chapter on FtAIL had a twofold objective: of articulating a critique of the liberal mainstream approach advanced by Hilary Charlesworth and Christine Chinkin and demonstrate the value of the socialist feminist approach. In the backdrop of thumbnail sketches of other feminist approaches an effort has been made to deal with issues such as intersectionality and fundamental topics and doctrines of international law like sources or subjects of international law or the nature of the State.

Tzouvala has pointed out that ILWO does not adequately address the question as to how international law ‘contributes to the constitution of categories like class, gender or race and their mutual entanglement’. In my view the sketch of the history of international law that ILWO offers (pp.477-524) does show how “race” was constructed and constituted through what Antony Anghie has termed “dynamics of difference” by international law and shaped the development of international law since. However, in the absence of a feminist history of international law which, as I note, is yet to be written (p.481), the same cannot be said of “gender”. The reasons for why FtAIL did not emerge in the Cold War period (pp.364-370) shows how such a history has to take into account a range of factors in telling its story. When this history is written it will allow a complex and integrated narration of the ways in which international law has constituted the categories of gender (and class and race) and legitimized oppression against women over the centuries.

The second criticism is about my ‘focus on gender as a direct subject of international law’. But that is not entirely true. Indeed, in IWLO I make bold to suggest that you can be doing feminist work by critiquing structures of capitalism and imperialism even when you do not directly address the question of oppression of women (p.396). A third criticism is that I ‘radically underestimate the role of gendered tropes and imaginaries for the structure of international legal arguments…especially when they are used to facilitate imperial violence’. I have also touched on this matter, among other things, while referring to Catherine Mackinnon’s justification of use of force against Afghanistan (pp.378-379). Yet admittedly the exploration of feminist approaches in ILWO needs to be supplemented through deeper engagement with a range of concerns and arguments expressed in feminist scholarship in different historical, geographical and political contexts. There is also a need to advance a more precise and elaborate statement on the constitution of gender under capitalism. I hope to attend to these gaps in my future work. However, I do not subscribe to the view that because a book i.e., The boundaries of international law is seventeen years old it should not have been the basis of analysis of the feminist approach. Moreover, while I have principally devoted the chapter to the work of Charlesworth and Chinkin I have tried to make it a part of the conversation with other feminist traditions and scholars.

Use of postcolonial theory

The fact that I situate myself within the TWAIL movement partly explains my engagement with postcolonial theory. Many TWAILERS find it has purchase and this was no mean reason for deploying it. I think the point postcolonial theory makes about a lack of familiarity with third world conditions and materials is important. Its anti-imperialism is important. Its critique of Euro-centrism is significant. The importance of postcolonial theory is also evident in debating questions relating to the idea of international rule of law and the pursuit of reform of international law and institutions. It sensitizes us to the existential concerns of peoples that were colonized and who wish to use the language and vocabulary of international law to defend certain core interests. I have however noted the limits of postcolonial theory that I will not belabor again (pp.25-29).

On NAIL and New Haven

While there is much that divides the NAIL from the New Haven approach there is no denying that in advancing a critique of MILS both make similar moves, perhaps because of their common roots in American legal realism. Both contest the law and politics divide and assert the indeterminacy of legal rules. Of course the two rely on different cultural, social and linguistic sources in advancing the latter claim. It is also true that while the New Haven approach was more concerned with semantic indeterminacy NAIL rests its case primarily on structural indeterminacy. But the New Haven approach also does address structural roots of indeterminacy. The idea that both make the same moves does not take away from the originality of NAIL which advances its claims in a distinct manner.

The problem with NAIL is that a serious critique of material structures does not accompany that of indeterminacy. It is a significant absence as the inner contradictions of the “logic of capital” cannot be discovered in the internal tensions of the “logic of law”. As I contend in the book, the charge of radical indeterminacy is exaggerated. Based on the work of Wittgenstein and Gadamer ILWO seeks to demonstrate that while an element of interpretive uncertainty always remains the charge of radical indeterminacy is mistaken. The problems of international law are to be primarily traced to the “logic of capital” even as other logics come into play.

Be that as it may, New Haven and NAIL sharply diverge in their thinking about the reconstructive moment or the way forward. The New Haven approach would consider NAIL sterile or unproductive as it places emphasis on changing the world (a la Marx’s eleventh thesis on Feuerbach), albeit to safeguard the global capitalist system. For NAIL the New Haven approach represents an unsophisticated understanding of the social and political world and therefore undeserving of attention.

On Commodity Form Theory

The comments of Knox suggest that we can discover through relying on commodity form theory a singular overarching explanation that captures the logic of modern international law over time, covering different historical phases, conditions and realities. There are four distinct questions that arise in relation to Pashukanis’s pioneering work and its application to international law: (1) Did he correctly grasp and apply Marx’s method; (2) Did he use this method properly to work out the “logic of law”; (3) Did he appropriately extend it to the world of international law; and (4) Does his account help explain the evolution and development of international over centuries. It has been contended in IWLO that despite the brilliant insights of Pashukanis into the “logic of law” it is difficult to answer these questions in the affirmative. Pashukanis made a brave attempt to trace the evolution and development of international law using commodity form theory but fell short as he left out critical variables in working out both the “logic of capital” and the “logic of law”. I will not go over that ground again (see pp.462-477). I may however add that, among other things, his reductionist logic did not allow him to take effective cognizance of the questions Marx raised, such as in Grundrisse wherein he observed immediately after the famous section on “The Method of Political Economy” that ‘the really difficult point to discuss […] is how relations of production develop unevenly as legal relations. Thus e.g. the relations of Roman private law (this less the case with criminal and public law) to modern production’ (Marx 1973: 109). The point is that there is no necessary historical correspondence between modes of production and modes of law. It is also worth reminding readers that Marx was essentially concerned with capital as a closed system and therefore did not systematically take into account the phenomenon of imperialism (pp.490-491). Therefore, as David Harvey has observed, ‘Marx’s theory of the capitalist mode of production plainly cannot be used as the basis for deriving a historically specific theory of imperialism in a direct manner’ (p.491). Furthermore, the colonial encounter between capitalist and non-capitalist nations was no single encounter but encompassed a variety of situations over time (p.483). Marx also did not write his promised volume on the State. We do not therefore know the extent to which he would have recognized the crucial role it played in constituting legal relations or how the “logic of territory” played out in the sphere of international relations. What Knox is doing is to fall into the trap of what may be called commodity form determinism. While he states that a historical account of international law can be provided based on commodity form theory the fact is any such account must take into account the other logics (of law, territory, culture and nature) which are interacting with each other and of which one or the other may dominate at a particular point in time.

International Rule of Law

Knox also advances the criticism that IMAIL mistakenly critiques Mieville’s rejection of the idea of international rule of law (IRL). At the outset let me record that Mieville has written an extremely important book on a Marxist approach to international law. But his rhetorical dismissal of the idea of IRL is misguided and has been used to undermine Marxist approaches to international law by representing these as pretentious and irrelevant to current concerns and debates. My attempt is only to, as Rasulov is right in noting, provide a corrective to the Mieville view. In the process it may appear that ILWO has, on the lines of E.P.Thompson, gone too far to endorse the idea of IRL. All I can do is to request that my ruminations on IRL be read in perspective, that is, in the larger context of my writings which has been highly critical of the substance of contemporary international law. ILWO also provides a radical critique of contemporary international law characterizing it as “global imperial international law” from the standpoint of subaltern groups and states (p.515). Second, Third world peoples and states believe that the observance of the foundational rules of international law is in their interest. The rules relating to the prohibition of threat or use of force, non-intervention, cooperation and peaceful settlement of disputes works to their advantage. That is why so much time and energy was invested into drafting of the 1970 Friendly Relations Declaration. The observance of the principles of non intervention and prohibition of the use of force (as Knox concedes) would have helped avoid great harm to the peoples of Afghanistan, Iraq, former Yugoslavia, Libya and Syria. The principle of Sovereign Equality of States is critical in terms of making the case for retrieving policy space lost through a variety of multilateral and bilateral legal regimes in the economic sphere. The benefits of peaceful settlement of disputes in diverse areas of international life should not also be underestimated. Likewise, the observance of international human rights law can be to the advantage of subaltern groups and classes to challenge ruling elites in the third world even as it is often used by imperialism to inflict violence on them. In other words, the Jekkyl and Hyde character of international human rights law must be borne in mind. Third, it may be pointed out that it is not sufficiently recognized that the idea of IRL is sustained though the struggles of progressive social forces and states; it would be mistaken to believe that it is a natural outcome in an unequal and unjust world. A world order in which naked power becomes the currency of international politics cannot be ruled out in the absence of resistance from these forces. To put it differently, the idea of IRL can be used to defend certain progressive elements of a bourgeois world order codified in contemporary international law. Fourth, in the absence of any real possibility of the revolutionary transformation of the global order, those who accept the idea of reform of international law cannot but accept the value of IRL even as a far-reaching critique of the international legal process and structure is advanced. Marx and Lenin believed that left movements should not be dismissive of law and legal institutions in bringing relief to the subaltern classes. To postpone all efforts at reform till global revolution takes place is also to, among other things, deprive the left movement of the energies of those who wish to bring about change, however small, that bring a modicum of welfare to subaltern groups. The fact is that reform has been brought about in several areas of international law through the efforts of subaltern groups and states. Fifth, there are issues today such as climate change that are about the fate of common humanity and planet earth and cannot await a radical transformation of the global capitalist system. If we can mobilize international law to prevent more harm to the environment we should do so. Sixth, one cannot blame all that is wrong with postcolonial societies to the doings of imperial international law and therefore reject IRL. While imperialist policies, laws and institutions are responsible for depriving postcolonial states of critical policy space to pursue policies and practices that would promote the welfare of their people, the ruling elites of these states have also failed their own people. In sum, the five logics that determine the nature of the global order—logics of capital, territory, culture, nature and law—reveal the complexities involved in a linear or one dimensional approach to either a critique of contemporary international law or a response to it.

Alternative Futures

There has been some concern expressed by Ozsu about many of the propositions that are identified at the end of the book in addressing the theme of “alternative futures”. To begin with I must admit that without sufficient explanations these can easily be misunderstood. I have held out the possibility of a separate volume to do so but this is not obviously of much help to readers reviewing the bare propositions. The need to advance these propositions can be inter alia traced to preventing the critics of Marxist approaches from dismissing them by invoking and repeating certain dogmatic formulations. Marx would also have expected us to draw lessons from the experience of a century of “actually existing socialism” and “actually existing capitalism”. For instance, he would have wanted us to analyze the reasons that the global capitalist system has not collapsed given the internal contradictions that characterize its workings. In the final analysis our commitment should be neither to Marxism or socialism but to human emancipation. I turn to Marxism because it offers powerful methodological tools to understand society and work towards that goal rather than because it offers a set of timeless prescriptions. It may also be noted that I am only advancing a set of amendable propositions that would inform a peaceful transition to a better future.

In this backdrop we may consider the proposition about experimenting with different forms of ownership patterns or property rights or markets? Several points may be made. First, while the word “socialism” is not used in talking about “alternative futures”, these propositions have been formulated keeping in mind the period of transition from capitalism to an utopian future. Second, the propositions seek to accommodate different social formations from which transition might take place, including those in which there are widespread pre-capitalist relations. In such cases, as Lenin put it, ‘we must understand what intermediary paths, methods, means and instruments are required for the transition from pre-capitalist relations to socialism’. (Lenin 1975: 54). Indeed, his speeches to the Tenth Congress of the Russian Communist Party (Bolshevik) in 1921 explaining New Economic Policy (NEP) and his writings on the subject are worth exploring in this regard (Ibid. pp.505ff, especially his essay “The Tax in Kind: The Significance of the New Policy and Its Conditions, pp.526-556). Third, a century of experience of actually existing socialisms and capitalisms points to the need to some degree of openness to different ownership patterns in the period of transition and drawing from that experience beyond. It made the eminent Marxist historian and thinker Eric Hobsbawm observe that ‘the future, like the present and the past, belongs to mixed economies in which public and private are braided together in one way or another’ (Hobsbawm 2009. Emphasis addd). There is also an ongoing effort to reassess the role of cooperatives in the period of transition that deserve attention (see Marcuse 2015; Jossa 2005). Incidentally, Hobsbawm also wrote that ‘Marx and Engels were wisely refrained from describing what communist society would be like, but most of what little they said about what individual life would be like under it, now seems to be the result, without communism, of that social production of potentially almost unlimited plenty, and that miraculous technological progress which they expected in some undetermined future, but which is taken for granted today’ (Hobsbawm 2002: 136). The short point is that we need to re-examine the “original position” on property rights in the period of transition if only to reaffirm it. Fourth, the relationship between socialism and the market, and the limited and legitimate forms it can assume, needs to be revisited and actively debated given the experience of actually existing socialisms, including that of market socialism. A debate took place on the subject in the early decades after the October Revolution. In the 1930s the problem of “economic calculation” was considered when socialist economists (such as H.D. Dickinson, with Maurice Dobb opposed to him) considered socialism compatible with market (Dobb 1965: 240); there is even today a healthy debate on the merits of market socialism. Fifth, there is a need to revisit the idea of nationalization of all private property in the matrix of the structure of left political parties, especially communist parties, and the possibility of the rise of a “new class” and an authoritarian state. There is often too much economics and too little politics in our thinking about alternative futures.

Conclusion

In conclusion I would like to sincerely thank the contributors for their time and effort in engaging with ILWO. It has made me aware of the gaps and weaknesses in my book. I hope to address these in the future. Meanwhile, fellow travelers may take what they find useful from it and move forward.