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Writing about Empire: Remarks on the Logic of a Discourse

Published online by Cambridge University Press:  27 April 2010


A new genre of scholarly writing has emerged in recent years in the field of what one can broadly call critical international theory. Its principal defining feature is an intense preoccupation with the phenomenon of the so-called ‘new world order’, which it tries to explain and describe through an analytical lens constructed primarily around two ideas: the idea of ‘empire’ and the idea of ‘imperial law’. In this article I attempt to provide a brief overview of this genre, which for the sake of simplicity I shall call henceforth the ‘new imperial law’ or NIL genre, and to reflect critically on its underlying ideological dynamics.

Copyright © Foundation of the Leiden Journal of International Law 2010

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1 Although it has a number of notable parallels in more traditional varieties of liberal international law scholarship, the NIL genre, quite certainly, constitutes a new departure in the field of international theory. As I shall show in the pages ahead, the way it frames the general problematic of the contemporary world order – ‘empire’ vs. ‘law’, ‘United States’ vs. ‘Europe’, ‘Hobbes’ vs. ‘Rousseau’ – and the implicit ideological vision it imparts with that are highly original. For the most representative examples of the NIL genre, other than the volume under review see also Torre, M. La, ‘Global Citizenship? Political Rights under Imperial Conditions’, (2005) 18 Ratio Juris 236CrossRefGoogle Scholar; Cohen, J., ‘Whose Sovereignty? Empire versus International Law’, (2004) 18 (3)Ethics & International Affairs 1CrossRefGoogle Scholar; Bhuta, N., ‘A Global State of Exception? The United States and World Order’, (2003) 10 Constellations 371CrossRefGoogle Scholar; ‘America and the World’, infra note 25.

2 Wacquant, L., ‘Critical Thought as Solvent of Doxa’, (2004) 11 Constellations 97, at 97CrossRefGoogle Scholar.

3 The same line is repeated also in Cohen, supra note 1, at 12. Leaving aside the bizarrely reificationist vision of jus this view implies, if the law on the use of force was indeed supposed to have been ‘eliminated’ with the creation of the United Nations, how would one then understand Articles 2(4), 42, or 51 of the UN Charter?

4 See, e.g., B. Fassbender, ‘The Better Peoples of the United Nations? Europe's Practice and the United Nations’, (2004) 15 EJIL 857.

5 The idea that the ‘Westphalian model’ had originated with the Peace of Westphalia is, of course, in reality nothing but a twentieth-century myth. See A. Carty, The Decay of International Law (1986); Kennedy, D., ‘International Law and the Nineteenth Century: History of an Illusion’, (1997) 17 Quinnipiac Law Review 99Google Scholar; B. Teschke, The Myth of 1648 (2003). In a similar vein, the League of Nations did not just fail to ‘challenge the colonial status of Asia and Africa’. It actively entrenched it. See A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005), 115–95. Finally, it is simply downright inaccurate to suggest that the UN system was ‘founded on genuinely universalistic principles’. If ever there was a treaty that explicitly legalized a global system of colonialism, the UN Charter is definitely it. Whoever doubts this should read its Article 73.

6 Amin's essay is not the only example that illustrates this pattern. The same presentational move can be observed also in the case of Leo Panitch and Theo Gindin's ‘Theorizing American Empire’ (pp. 21–43) and a number of other similarly ‘Marxist’ texts.

7 The same vision is also advanced in Cohen, supra note 1, at 19 ff., and La Torre, supra note 1, at 240 ff.

8 See M. Koskenniemi, The Gentle Civilizer of Nations (2002), 4–5; Kennedy, supra note 5.

9 See B. S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’, (2004) 15 EJIL 1.

10 As China Miéville puts it, ‘[i]t would obviously be fatuous to deny that law could ever be put to [ideologically progressive] reformist use . . . But the recourse to law can only ever be of limited progressive value.’ ‘At best, it seems, in the ideological struggle for international law one can hope for occasional victories in a constant struggle over categories. These victories, however, will be predicated on legal forms that not only make the categories ripe for counter-appropriation, but that can only be actualized in the coercive interpretations of the very state and other bodies whose interpretations and actions the radical lawyer is critiquing. However persuasive the subversive interpretation, in other words, it will be the interpretation of those with power that will inhere in the world.’ ‘The forms and relations of international law are the forms and relations of imperialism. Attempts to reform through law can only ever tinker with the surface level of institutions.’ C. Miéville, Between Equal Rights (2005), 304–17.

11 Arguably the most fundamental provision in contemporary international humanitarian law (IHL), the Martens clause was first inserted into the 1899 Hague Convention on the Laws and Customs of War on Land and has since been replicated in many other IHL treaties. In its most recent formulation (Additional Protocol I to the Geneva Conventions of 12 August 1949, Art. 1.2) it reads as follows: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’

12 North Sea Continental Shelf Cases, [1969] ICJ Rep. 4, paras. 73–74.

13 Cohen, supra note 1, at 3, 21.

14 La Torre, supra note 1, at 239.

15 See G. Simpson, Great Powers and Outlaw States (2004); Anghie, supra note 5.

16 See Cohen, supra note 1, at 13: ‘The global political system is dualistic, composed of sovereign states and international law.’ This pattern of ontologically equating international law with states and thus hypostatizing it as if it were a political subject is quite typical not only of Cohen's argument but of the NIL discourse as a whole. Cf. Bartholomew's misappropriation of Dworkin's ‘law's empire’ (p. 2).

17 See also, more generally, G. Agamben, State of Exception (2005).

18 Hart, H. L. A., ‘Positivism and the Separation of Law and Morals’, (1958) 71 Harvard Law Review 593CrossRefGoogle Scholar, at 621 (‘we must not present the moral criticism of institutions as propositions of a disputable philosophy’).

19 F. Jameson, The Political Unconscious (2002), 38.

20 E. Ehrlich, Fundamental Principles of the Sociology of Law (1936), 493–506.

21 This is not, admittedly, the most charitable reading of Agamben's legal-theoretical argument. For other, more generous takes, see, e.g., McLoughlin, D., ‘In Force without Significance: Kantian Nihilism and Agamben's Critique of Law’, (2009) 20 Law and Critique 245CrossRefGoogle Scholar; Whyte, J., ‘“I Would Prefer Not To”: Giorgio Agamben, Bartleby, and the Potentiality of Law’, (2009) 20 Law and Critique 309CrossRefGoogle Scholar; T. Zartaloudis, Giorgio Agamben, Power, Law and the Uses of Criticism (2010). See also, more generally, P. Fitzpatrick and P. Tuitt (eds.), Critical Beings: Law, Nation and the Global Subject (2004).

22 See, e.g., F. Jones, ‘Guantánamo Bay and the Annihilation of the Exception’, (2005) 16 EJIL 613.

23 Hart, supra note 18, at 620: ‘The vice of this use of the principle that, at certain limiting points, what is utterly immoral cannot be law or lawful is that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another.’

24 Miéville, supra note 10, at 319: ‘A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law’ (emphasis in original).

25 The same point is made even more forcefully in ‘America and the World: A Conversation with Jürgen Habermas’, available at

26 See, e.g., I. Johnstone, ‘US–UN Relations after Iraq: The End of the World (Order) as We Know It?’, (2004) 15 EJIL 813; La Torre, supra note 1, at 251 (‘the Iraq war is a turning point in the building of [the new imperial order]’).

27 Or, as Habermas puts it on a different occasion, it is all about being a liberal state ‘whose organizing principles comport with the principles of the UN's Declaration of Human Rights’ (supra note 25).

28 On the ‘standard of civilization’ see further Anghie, supra note 5, at 84–6; Koskenniemi, supra note 8, at 127–36; G. Gong, The Standard of ‘Civilization’ in International Society (1984).

29 M. Foucault, The Archaeology of Knowledge (1972), 23.

30 See G. Allen, Intertextuality (2000).

31 S. Marks, ‘Three Concepts of Empire’, (2003) 16 LJIL 901.

32 For a summary, see A. Cassese, Self-Determination of Peoples (1995).

33 David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’, (2002) 15 Harvard Human Rights Journal 101, at 116–17.

34 D. Lopez-Medina, Teoria Impura de Derecho (2004).

35 The Communist Manifesto: A Modern Edition (1998), 64.

36 See G. Balakrishnan, Debating ‘Empire’ (2004).

37 Marks, supra note 31, at 903 (emphasis in original).

38 M. Koskenniemi, From Apology to Utopia (2005), 564.

39 Holt, W., ‘Tilt’, (1984) 52 George Washington Law Review 280Google Scholar; E. Pashukanis, Selected Writings on Marxism and Law (1980).

40 Although, of course, we can argue about the actual limits of this tilt at rather considerable length. Compare Miéville's argument with Koskenniemi's. See Miéville, supra note 10, at 48–60.

41 A. Rasulov, ‘International Law and the Poststructuralist Challenge’, (2006) 19 LJIL 799, at 806–8, 815–16.

42 One cannot rule out, of course, the possibility that, ultimately, this is just a result of some strategic choice. In an intellectual environment traditionally dominated by the Westphalian statocentric paradigm, deploying the Marxist analytic in earnest is not, after all, the most effective way to make one's name.

43 Cf. Ticktin, H., ‘Political Economy and the End of Capitalism’, (2007) 35 (1)Critique 67CrossRefGoogle Scholar.

44 For an excellent attempt to explore this problematic in a decidedly systematic fashion, albeit mainly from an international relations perspective, see G. Arrighi, Adam Smith in Beijing: Lineages of the Twenty-First Century (2007). See also Anderson, P., ‘Jottings on the Conjuncture’, (2007) 48 New Left Review 5Google Scholar; Watkins, S., ‘Continental Tremors’, (2005) 33 New Left Review 5Google Scholar.

45 See the essay by Panitch and Grindin (pp. 21–43).

46 A. Wolfers, Discord and Collaboration (1962), 82.

47 A.-M. Slaughter, ‘International Law and International Relations’, (2000) 285 RCADI 9, 34.

48 Wacquant, supra note 2, at 99.

49 J. Hutnyk, Bad Marxism (2004), 139.

50 Jameson, supra note 19, at xiii.