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.
Marxism and Third Worldism
B.S. Chimni’s work sits at an important intersection of international legal theory. It is most readily identifiable as falling within the Third World Approaches to International Law (TWAIL) movement: adopting the perspective of the Global South, and foregrounding the role of imperialism. Simultaneously, with its focus on class, production and global capitalism, his work is explicitly Marxist. This combination harkens back to an older Marxist Third Worldism—exemplified by Frantz Fanon, Amílcar Cabral and Walter Rodney.
For Chimni, his position is not exceptional. He goes so far to say that his “integrated Marxist approach” to international law, is TWAIL (pp. 14-18). Whilst this is true to a degree—TWAIL is a broad church—it underplays the degree to which Chimni’s Marxism is distinctive within TWAIL.
It is for this reason that a new edition of International Law and World Order is so welcome. Having been out of print for a number of years, readers eager for Chimni’s distinctive perspective were reduced to sharing samizdat-style photocopies. Importantly, this is not simply a re-print. Chimni has revisited his earlier formulations and engaged with a wider range of thinkers. Particularly important is Chimni response to China Miéville’s Between Equal Rights: A Marxist Theory of International Law (BER).
Radicalism With Rules?
According to Miéville, Chimni problematically derives the class basis of international law from its content as opposed to “anything in the structure of international law” (BER p. 65). Against this, Miéville turns to the work of Evgeny Pashukanis who argued that law and capitalism were connected on a structural level.
For Pashukanis, the connection between law and capitalism lay at the level of form. Pashukanis argued that any Marxist account of law needed to account for what differentiated law from other forms of social regulation. He began from the insight that “under certain conditions the regulation of social relationships assumes a legal character”.
Pashukanis located these conditions in commodity exchange. Every commodity exchange is an act of mutual recognition, in which each owner recognises the other as their equal in an abstract and formal sense. When disputes arise from this relationship, a form of social regulation is required that can resolve disputes whilst also respecting this abstract equality: this is the legal form.
For Miéville, as capitalism generalises on the world scale, so too does international law. Drawing on Koskenneimi, Miéville argues—contra Chimni—that international law is structurally indeterminate, i.e. there is no “right answer” given by the law. Of course, in practice, disputes are resolved. Quoting Marx, Miéville argues that it is coercive force which resolves who “wins” a particular legal dispute. In our “politically and militarily unequal modern world system … the winner of that coercive contest is generally a foregone conclusion” (BER p. 292).
Accordingly, given this deep connection between law and capitalism “[t]o fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law” (BER p. 318).
Many of Chimni’s new insights are a direct response to Miéville’s argument. According to Chimni:
[W]hat is missing in Miéville is a concrete analysis of the changing content of international law over time. The fact that Pashukanis derives his commodity form theory primarily from the moment of exchange leads Miéville to privilege form over content … . (p. 476)
He follows this up with a brilliant historical account of the changing forms of imperialist capitalism and their international legal regimes.
According to Chimni Pashukanis (pp. 462-466):
1) Wrongly characterised pre-capitalist regulation as “custom” and could not see the continuities between older and newer law.
2) Focused too much on the sphere of circulation and not on production.
3) Narrowly focused on private law.
4) Ignored the complexity of the legal superstructure; particularly legislation.
These issues all mar Pashukanis’ theorising about international law, which was unable to understand its difference from domestic law and tended towards Eurocentrism, since it “did not sufficiently acknowledge the role of ‘legal orientalism’’’ in shaping international legal doctrines (p. 472).
Against this, Chimni seeks a position that can “adequately capture the multidimensional aspects of the form and content” of the law, and account for the “added complications introduced by universalizing capitalism and the ‘logic of territory’’’ that mark out the international sphere (p. 468).
Much of Chimni’s analysis is exemplary. He is surely correct to stress the importance of mapping the changing forms of imperialism. However, Chimni’s position on the commodity-form theory ultimately holds him back.
To deal with Chimni’s criticisms of Pashukanis, we should first note that since commodity exchange pre-dates capitalism, the commodity-form theory allows for pre-capitalist legal regimes. Secondly, class relations do not tend to be directly expressed in the law, but rather are done so indirectly through the legal form. The rule of the capitalist class tends to be mediated through abstract and impersonal domination.
This suggests a response to Chimni’s final two points. Whilst commodity-form theorists have not always sufficiently detailed international law’s content, any full account can and must chart the specific unfolding of legal content within the context of the limits and shape of the legal form.
Accordingly, Chimni’s historical account is not precluded by the commodity-form theory. One of Chimni’s vital insights is that commodity exchange was not “universalised” in a smooth fashion. Instead, it was achieved through a logic of territorial domination and involved the combination of different modes of production. Chimni maps this hybridity onto transformations in international law.
The commodity-form theory makes perfect sense of this. Precisely because commodity exchange was not evenly spread, international legal forms were not those of perfect formal equality. Indeed Pashukanis himself described colonial international law “as the totality of forms which the capitalist, bourgeois states apply … [to] each other, while the remainder of the world is considered as a simple object of their completed transactions”. What the commodity-form theory allows us to do is specify the mechanism through which capitalism gave rise to specific juridical configurations. Far from a static picture, we have a good explanation for the haphazard and uneven development of international law.
In Chimni’s own account, we do not really have an explanatory mechanism for how and why international law responds to social transformations. Chimni seeks to take into account the logics of nature, territory, law and culture whilst assigning “the ‘logic of capital’ relative primacy as it critically influences the meaning and working of other logics” (p. 449), but it is difficult to see how the logic of capital translates into legal outcomes.
Following Marx and Engels, Chimni suggests that this logic is “expressed” through the law (pp. 450-454), but there is very little about how and why law specifically expresses this logic. The closest explanation we get is an engagement with the work of Karl Renner, who argued that law—as an empty vessel—served various functions which would change with the changing of a mode of production (pp. 455-456). Yet this leaves the unanswered question of why law seems so peculiarly connected with capitalism.
This is important in the context of Chimni’s very ambitious attempt to think through the relationship between gender, race and class. For Chimni, these different logics all impact on and are articulated through the law. But we do not get a sense of how and why they are connected together. As I have argued elsewhere, the commodity-form theory proves helpful here.
The original constitution of the figure of the commodity owner as formally equal was buttressed and stabilised by a series of racialised and gendered exclusions. Categories of ownership were stabilised through the dispossession of indigenous peoples, the existence of chattel slavery and the exclusion of women. These exclusions were all juridified. Thus, this legal logic was articulated as part of gendered and racialised process of capitalist accumulation.
Chimni’s attempt to engage with the insights of feminist and postcolonial theory is vital, but he lacks a material basis to explain how these various logics are co-constitutive.
All of this becomes particularly important in the context of Chimni’s political call to arms. He is scathing of those who fail to appreciate the advances that came with the extension of formal equality (p. 476). Chimni argues that this opened up possibilities for progressive advances through the “international rule of law”. Given that international law is the product of states, it will not directly translate the interests of the global ruling class. Instead, it is mediated through states’ internal processes, including democratic ones. Accordingly, international law can serve as a “shield”, since powerful states will lose legitimacy if they openly violate international law (p. 523). Consequently:
The critics of the international legal system should do what it takes to use it to the benefit of the TOC [transnational oppositional class] without of course forgetting the limits of what is possible in the existing world order. (p. 521)
However, absent a more sustained reflection on what precisely connects international law and capitalism, it is difficult to know what the “limits of what is possible” are. Insofar as we adopt a Renner-inflected theory of law as functional, then it seems like law itself has no limits. As a “neutral vessel” law will simply express struggles, both progressive and reactionary.
This seems to run up against the accounts in TWAIL scholarship, which have shown how even a strong Third World movement came up against international law’s colonial character. Chimni does suggest that there might be some limits imposed by the “traditions” of various legal professions (p. 461), but this does not seem to account for the tenacious connection between international law and imperialism.
By stressing the commonality of form between law and capitalism, the commodity-form theory gives us a materialist account of this connection. This also alerts us to the limits of international law—it cannot fundamentally challenge the status quo. The mistake of some advocates of that theory has been to suggest that because it cannot challenge the logic of capitalism, international law must simply discarded. By contrast I would argue that this theory invites us to think carefully about how we might use international law.
The form of the law ultimately limits the horizons for radical transformation. At the same time, it will condition the struggles that are articulated within it. Legal struggles tend to channel resistance into apolitical institutions, and fragment that resistance. Keeping these limits in mind then, helps us to understand how we might attempt to deploy international law. It must be done in such a way as to cut against the tendencies of its form.
A key tenet to such struggles must be that international law is consciously subordinated to a political project. It is here that I have my greatest differences with Chimni. For him, the “international rule of law” might serve as a bulwark against imperialist oppression. I think this is a mistake. There is a clear tactical value in defending a number of legal principles post-1945, particularly non-intervention (although here we should be wary: intervention was a key component of radical Third Worldism). But, strategically, to commit to the “rule of law” seems to miss the deep historical and structural connections between law and imperialism.