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Marxism, International Law, and Political Strategy

Published online by Cambridge University Press:  01 September 2009

Abstract

The question of international law's role in progressive politics has become increasingly important. This is reflected in an upsurge in scholarship dealing with international law's relationship to imperial power and its progressive potential. There has also been an increase in the number of Marxist accounts of international law, with China Miéville's Between Equal Rights being particularly important. Miéville's book is very pessimistic as to the progressive potential of international law. This article contests Miéville's claims by examining his accounts of legal subjectivity, violence, and indeterminacy, and argues that international law's content is open to progressive appropriations. However, the ‘form’ of international law limits its ability to criticize systemic or structural problems, so that it has very little transformative potential. A progressive politics of international law must therefore take advantage of content without falling foul of form. The article finally enquires whether in some extraordinary situations international law might be transformative.

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ARTICLES
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 P. Sands, Lawless World: America and the Making and Breaking of Global Rules (2005).

2 M. Hardt and A. Negri, Multitude (2004).

3 F. Johns, ‘Guantánamo Bay and the Annihilation of the Exception’, (2005) 16 EJIL 613; and S. Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’, (2006) 19 LJIL 339.

4 See, e.g., A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005); and Marks, S., ‘Empire's Law’ (2003) 10 Indiana Journal of Legal Studies 449CrossRefGoogle Scholar.

5 See, e.g., Rajagopal, B., ‘Counter-hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’, (2006) 27 Third World Quarterly 767CrossRefGoogle Scholar; and M. Craven et al., ‘We Are Teachers of International Law’, (2004) 17 LJIL 363.

6 C. Miéville, Between Equal Rights: A Marxist Theory of International Law (2005); B. Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (2008); and S. Marks (ed.), International Law on the Left: Revisiting Marxist Legacies (2008).

7 Miéville, supra note 6, at 319 (emphasis in original).

8 See Bowring, supra note 6, at 21–30; S. Marks, ‘International Judicial Activism and the Commodity Form Theory of International Law’, (2007) 18 EJIL 199; Özsu, U., ‘Book Review’, (2008) 72 Science and Society 371Google Scholar; and MacNair, M., ‘Law and State as Holes in Marxist Theory’, (2006) 34 Critique 211Google Scholar.

9 ‘Progressive’ is a difficult word to define. Here, the supersession of capitalism is seen as the ‘primary’ progressive goal, with moves towards it also being progressive. Furthermore, measures that advance the interests of oppressed constituencies – subaltern classes, oppressed races and genders, etc. – are also taken as being progressive.

10 M. Koskenniemi, From Apology to Utopia (2005), 59.

11 M. Koskenniemi, ‘By Their Acts You Shall Know Them (and Not by Their Legal Theories)’, (2004) 15 EJIL 839, at 851.

12 Koskenniemi, supra note 10, at 4–6.

13 Miéville, supra note 6, at 54.

14 C. Arthur, ‘Editor's Introduction’, in C. Arthur (ed.), Law and Marxism: A General Theory (1978), 9, at 11.

15 K. Marx, Capital: Volume One (1999), 51.

16 E. B. Pashukanis, ‘International Law’, in Pashukanis, Pashukanis: Selected Writings on Marxism and Law, ed. P. Beirne and R. Sharlet (1980), 168, at 176.

17 Miéville, supra note 6, at 191.

18 C. Miéville, ‘The Commodity-Form Theory of International Law: An Introduction’, (2004) 17 LJIL 271, at 285.

19 E. B. Pashukanis, ‘General Theory of Law and Marxism’, in Pashukanis, supra note 16, at 58 (emphasis in original).

20 Miéville, supra note 6, at 275.

21 Ibid., at 128.

22 Ibid., at 126.

23 Marks, supra note 8, at 204.

24 Marx, supra note 15, at 151.

25 S. Marks, The Riddle of All Constitutions (2007), 144.

26 Miéville, supra note 6, at 296.

27 Ibid., at 304.

28 Ibid., at 317 (emphasis in original).

29 A. Hunt, ‘A Socialist Interest in Law’, (1992) 192 New Left Review 105, at 116.

30 Miéville, supra note 6, at 103.

31 Ibid., at 108.

32 F. Engels and K. Marx, ‘Manifesto of the Communist Party’, in Marx and Engels, The Marx-Engels Reader, ed. R. Tucker (1978), 469, at 485.

33 Ibid., at 476.

34 Ibid., at 488.

35 See Miéville, supra note 6, at 225–30.

36 Ibid., at 109.

37 W. Brown and S. Oxenbridge, ‘Trade Unions and Collective Bargaining’, in C. Barnard and S. Deakin (eds.), The Future of Labour Law: Liber Amicorum Sir Bob Hepple QC (2004), 63 at 66.

38 H. Collins, ‘The Productive Disintegration of Labour Law’, (1997) 26 Industrial Law Journal 295, at 298.

39 Trade Union and Labour Relations (Consolidation) Act 1992, s.244.

40 S. Fredman, ‘The Ideology of New Labour Law’, in Barnard and Deakin, supra note 37, at 9.

41 These considerations are also suggestive of a Marxist analysis of the ‘fragmentation’ of international law; especially relevant in this respect is Miéville's attempt to account for the particularities of administration: ‘Administration is the necessary “particularistic”, “political” corollary of the legal form's abstract formality, and it is continually thrown up. The attempt to apply abstract laws in particular conjunctures, in a developing history of class conflict, will always leave gaps that must be plugged by the capitalist state.’ Miéville, supra note 6, at 111. See also M. Koskenniemi and P. Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, (2002) 15 LJIL 553.

42 To some degree Miéville recognizes this; he argues (in a footnote) that ‘there is a tendency towards juridically free wage-labour in capitalism, but that countervailing tendencies come into play to negate’, and as such ‘liberal-democratic forms of capitalism represent . . . centres of gravity’. Miéville, supra note 6, at 94, n. 94. But this argument is not followed through.

43 Engels and Marx, supra note 32, at 480.

44 Miéville, supra note 6, at 141.

45 Ibid., at 191.

46 Ibid., at 267 (emphasis in original).

47 Ibid., at 268 (emphasis in original).

48 Bowring, supra note 6, at 9–38.

49 Ibid., at 30.

50 E. B. Pashukanis, ‘Economics and Legal Regulation’, in Pashukanis, supra note 16, 241.

52 Miéville, supra note 6, at 292.

53 Ibid., at 222 (emphasis in original). Miéville makes similar claims throughout the book, arguing that ‘[w]ar is simultaneously a violation of international law and international law in action’ (at 148); ‘[t]he morphological proximity of the legal subject and the armed unit is nowhere more clear than in international law’, (at 136 emphasis added); and ‘[i]nternationally, law's violence of abstraction is the violence of war’ (at 318).

54 Ibid., at 22.

55 Ibid., at 228, quoting A. Callinicos, ‘Marxism and Imperialism Today’, in A. Callinicos et al. (eds.), Marxism and the New Imperialism (1994), 11, at 16–17.

56 Ibid., 223.

57 B. Rajagopal, International Law from Below (2003), 34.

58 Ibid., at 41, and Anghie, supra note 4.

59 See, e.g., J. S. Olson, Historical Dictionary of the 1970s (1999), 325.

60 Miéville, supra note 6, at 126.

61 Ibid., at 127.

62 Marx, supra note 15, at 372.

63 Ibid., 372.

64 L. Solum, ‘On the Indeterminacy Thesis: Critiquing Legal Dogma’, (1987) 54 University of Chicago Law Review 462, at 462.

65 For a theorization of the ‘violence’ of a strike see W. Benjamin, ‘Critique of Violence’, in Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings, trans. E. Jephcott, ed. and with an introduction by P. Demetz (1978), 277, at 281.

66 E. P. Thompson, Whigs and Hunters (1975), 263.

67 See Marks, supra note 25.

68 Miéville, supra note 6, at 122 (emphasis in original).

69 E. B. Pashukanis, ‘Lenin and the Problems of Law’, in Pashukanis, supra note 16, at 133.

70 Ibid., at 138.

71 Ibid., at 139.

72 Ibid., at 156–62.

73 See Bowring, supra note 6; and B. Fine, Democracy and the Rule of Law (2002), at 129.

74 Pashukanis, supra note 69, at 144.

75 K. Marx, Wage Labour and Capital (1978), 29.

76 Arthur, supra note 14, at 13 (emphasis in original).

77 J. Sanbonmatsu, The Postmodern Prince (2004), 193.

78 This particular phenomenon has been well documented under a number of different rubrics: a fixation on crisis, on exceptionalism, etc. While these approaches have been extremely fruitful, they do not locate the deficiencies in legal argument within the law itself. The strength of the approach just outlined is that it is able to explain the pervasiveness of these problems. Of course, it may be objected that critical scholarship is able to avoid them, and this is true, but these scholars utilize an avowedly inter-disciplinary framework and as such are rejecting strict ‘legal argument’. See, e.g., Marks, S., ‘Apologising for Torture’, (2004) 73 Nordic Journal of International Law 365CrossRefGoogle Scholar; and H. Charlesworth, ‘International Law: A Discipline of Crisis’, 2002 Modern Law Review 377.

79 Marks, supra note 25, at 23.

80 U. Bernitz et al., ‘War Would Be Illegal’, letter, at www.guardian.co.uk/politics/2003/mar/07/highereducation.iraq.

81 Craven et al., supra note 5.

82 G. Montbiot, ‘War Criminals Must Fear Punishment. That's Why I Went for John Bolton’, at www.guardian.co.uk/commentisfree/2008/jun/03/usforeignpolicy.usa.

83 Craven et al., supra note 5, at 369.

84 See, e.g., Kennedy, D., ‘The International Human Rights Movement: Part of the Problem?’, (2002) 15 Harvard Human Rights Law Journal 101Google Scholar.

85 Miéville, supra note 6, at 316.

86 S. Picciotto, ‘The Theory of the State, Class Struggle and the Rule of Law’, in Bob Fine et al. (eds.), Capitalism and the Rule of Law: From Deviancy Theory to Marxism (1979), 164.

87 Ibid., at 171.

88 MacNair, supra note 8, at 236.

89 Koskenniemi, M., ‘“Intolerant Democracies”: A Reaction’, (1996) 37 Harvard International Law Journal 231, at 234Google Scholar.

90 R v. McCann and Others, [2008] NICA 25

91 Bowring, supra note 6, at 205.

92 G. Lukács, History and Class Consciousness (1990), 264 (emphasis in original).

93 Pashukanis, supra note 69, at 161.

94 Miéville, supra note 6, at 264 (emphasis in original).

95 Pashukanis, supra note 69, at 159.

96 Ibid., at 160.

97 S. Žižek, ‘Postface’, in G. Lukács, A Defence of History and Class Consciousness: Tailism and the Dialectic (2006), 151 at 164 (emphasis in original).

98 Kinsey, R., ‘Marxism and the Law: Preliminary Analyses’, (1978) 5 British Journal of Law and Society 202, at 218–20CrossRefGoogle Scholar.

99 Thanks to China Miéville for this formulation.

19
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