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Home EJIL Analysis Imperialism, Commodification and Emancipation in International Law and World Order

Imperialism, Commodification and Emancipation in International Law and World Order

Published on December 29, 2017        Author: 
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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).

 Concrete Analyses

 

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).

Which Logic?

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.

Whither Resistance?

 

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.

 

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4 Responses

  1. China Miéville’s ‘legal nihilism’ is an illuminating heuristic device. It helps situate international law as part of the problem for the alienations and dispossessions upon which our contemporary world order is constructed. I am sympathetic to the views expressed here by Robert Knox; the commodity-form theory need not impede engagement with international law but it changes our relationship (as lawyers) to it: as Knox and others have pointed out elsewhere, we use international law not because it is law but because it might advance some progressive cause. The relationship between capitalism and law that the commodity-form theory helps reveal serves to remind us 1. That a struggle through law is a struggle delimited by the ways in which the law constitutes and is constituted by capitalism 2. The use of law – including the use of law for socio-economic change – comes with a price of legitimating and sustaining the system of law that contributed to the problem in the first place 3. There is an intractable problem, highlighted not long ago by Brad Roth (‘Marxian Insights for the Human Rights Project’), between the positions of radicals who denounce the legitimation that comes from efforts to improve the current system and those of reformers or pragmatists.
    I am about to take a few days off over the new year but the very first book on my reading list when I return will undoubtedly be Chimni’s second edition of International Law and World Order. I can hardly wait.

  2. For what it’s worth, I find Chimni’s commitment to the “rule of law” from a Marxist perspective refreshing, given its significance to post-imperialist societies and any kind of transition to socialism. Of course such commitment need not be naive or indiscriminate, indeed, it should be intrinsically tied to notions of democratic legitimacy and social justice. Hence my reasons are not of Marxist provenance but are owing to ideas and arguments found in the works of Plato, and more recently and among others, H.L.A. Hart, Lon Fuller, Nigel Simmonds, Larry May, and Allen Buchanan, as well as the works of a handful of democratic theorists. At the same time, my own worldview remains, inter alia and in no small measure, stubbornly Marxist.

    In any case, upon learning of the new edition of Chimni’s book from this roundtable, I was inspired to put together a new compilation titled, Toward a Marxist Theory of International Law: A Basic Bibliography, which I’ve posted on my Academia page (it contains links to eight other related bibliographies). If the preview is not available, one can download the pdf doc. in the upper right hand corner of the page: https://www.academia.edu/35532063/Toward_a_Marxist_Theory_of_International_Law_a_basic_bibliography

  3. Thanks Margot, that’s exactly what I’m trying to get at in this post (and in the reams and reams of stuff I’ve written). I think the heuristic is very important because it does ultimately condition *how* we think about navigating international law.

    Patrick, so I see where your coming from; but I would want to push back on a couple of points.

    1) I don’t think you can – as a Marxist – just address the rule as a law as a thing that is desirable or not. The question has to be what are the *material roots* of the law, and in what historical conditions does it come into being? I.e. you need a historical materialist theory of law. I haven’t seen anything more convincing than Marx in On the Jewish Question and Pashukanis on this.

    2) Linked to the above, I’d note that both Fuller (less explicitly) and Simmonds (totally explicitly) – and I would argue Hart (in his stuff on the ‘minimum content of natural law’) – root their theories of the ‘necessity’ of law in social conditions of exchange. (I blogged about this a million years ago – http://pashukanis.blogspot.co.uk/2006/06/fuller-reads-pashukanismarx-meets.html; http://pashukanis.blogspot.co.uk/2008/12/right-wing-pashukanisites.html; http://pashukanis.blogspot.co.uk/2009/09/its-amazing-how-difficult-it-can-be-to.html).

    3) So that’s important on its own terms; because if the rule of law and capitalism have some deep connection then – as a Marxist – it would seem a little odd to be in favour of the rule of law itself, which I would say embeds a notion of politics and forms of social organisation in keeping with capitalist social relations.

    4) More specifically, this might give us pause to think about the relationship between democracy, social justice and ‘the rule of law’. For me this is true for a whole host of reasons.

    In particular, ‘the rule of law’ mediates popular mobilisation etc. through legal forms, lawyers and judges, and so tends towards *alienating* politics from day to day concerns (and the people more generally), and so – for me – are not ‘democratic’ in the way that would make sense from the perspective of Marxism (i.e. the ability of people to exert greater control over the social processes that shape their existence).

    Similarly, it seems to me that in real historical circumstances, ‘the rule of law’ has typically been deployed as a measure to put a break on radical action in favour of social justice. This makes sense because – by definition – the rule of law is conservative and favours the status quo (whether or not you think it has a structural connection to capitalism).

    Crucially, this isn’t to say that we shouldn’t recognise the historical problems of authoritarianism that have been associated with revolutionary movements. I’m just not convinced that ‘the rule of law’ is the right question to ask of them (ironically, for instance, the greatest periods of repression in the USSR coincided with the intensification of arguments for ‘socialist law’), or that it provides the social forms adequate to combat this.

    Great bibliography. I’ve actually also just put one together for the Oxford Bibliographies, with a bit more of a narrow focus.

  4. Thanks for your reply Robert. My Marxism is rather idiosyncratic (neither systematic nor doctrinaire) and my belief in and commitment to the rule of law is not dependent, strictly speaking, on a materialist theory which I would no doubt find overly deterministic and likely prone to the genetic fallacy. It is instead based on a conception of human nature (which is open ended and thus not ahistorical) and insights gleaned from moral psychology, one which shares with Marx a notion of the good life (or human fulfillment or eudaimonia) as one involving, in Elster’s words, “active self-realization.” I won’t attempt to either elaborate or fully defend my views in a blog post but suffice to say I can well imagine human beings living without laws (much as members of tribal communities once lived their lives governed by social norms; in other words, governed by what Confucians term li), although for now that remains a utopian (in a nonpejorative sense) vision. What you term the social conditions of exchange I would describe as minimal forms of social coordination and cooperation (dependent upon both social norms and law), which are prior to “exchange” proper and thus historically and logically precede (as, I think, both Hobbes and Kant well understood), capitalism, and thus the specific form of law under capitalism is an historically contingent product that severely distorts the “reasons” (in addition to Kant, see Christopher Bobonich’s Plato’s Utopia Recast: His Later Ethics and Politics [2002]), and moral justification of law. I find ample reason to criticize much of the manner in which law operates in “our” (capitalist democratic) society and societies with rather different histories than ours, although for motley reasons, I can’t throw out the (proverbial) baby with the bathwater.

    I look forward to reading what you’ve written on these topics, although someone my age would never refer to 2006 as “a million years ago”! Best wishes, Patrick