Friday, September 09, 2005

Between Equal Rights

Between Equal Rights: A Marxist Theory of International Law, Leiden: Brill (2005)

China Miéville, you may know him as the sexiest man in politics, or author of numerous sci-fi books, or perhaps you’ve seen him selling Socialist Workers on the street (does he do that). But I came to him primarily as an international law theorist and interpreter of Pashukanis. So anyway, I’ve just finished reading his book Between Equal Rights: A Marxist Theory of International Law and very good it was too.

Between Equal Rights has a few essential components, firstly it examines the claims of mainstream international legal scholarship and subjects to a critique (frankly this is not difficult to do), he then analyses critical approaches to law, within the CLS and Marxist traditions. In terms of the CLS and critical scholars Miéville examines Myles McDougal and Marti Koskeniemmi, these scholars militate against the conventional notion that international law is a totality of norms. Against this the critical accounts stress international law as a fluid process; the notion of law as a process also points towards the importance of interpretation in terms of the law. Furthermore this approach stresses that law is all about politics as against it being some specific sealed off realm.

This is where Marti Koskeniemmi becomes more important, Koskeniemmi shows how international law is fundamentally indeterminate. Every particular instance can be framed in different ways, as both an ascending argument, which is an appeal to particularistic notions of state sovereignty, and descending arguments, which is an appeal to the “common good”. The problem with these approaches is that they are framed in terms of idealism, and neither of them can answer the question “what is law”, this is where Pashukanis comes in.

Miéville argues that the approach of critical legal scholars needs to integrated into Pashukanis’ legal theory, where law is seen as the clash of two subjects within the legal form (as I have outlined). Therefore, it is necessary for Miéville to outline, defend and reformulate Pashukanis’ approach to the law. Miéville and I share very similar conceptualisations of Pashukanis’ legal theory, so I won’t go into precisely how he outlines Pashukanis. However, he also engages with some of the criticism of Pashukanis, and does so to great effect. I too have engaged in a similar defence, and in fact my position coincides very much with Miéville’s (when it is rejected I’ll place it here), essentially Pashukanis comes under two critiques; the first is that changes in contract law that recognise organisations as legal subjects (unions etc.) undermine his equation of law with the commodity owner, the second it that administration has undermined the legal form, because capitalism has ‘moved on’ since the days of simple commodity exchange. Broadly overlaying these criticisms is the notion that Pashukanis inflates the role of exchange in capitalism.

Miéville’s first thrust is to point out that exchange is vastly important in capitalism, and constitutes part of its economic base (I will return to this). In capitalism all production is for exchange and takes place on the basis of exchange, thus Pashukanis was not wrong to stress the importance of exchange. It is also fairly easy to address the charge that changes in contract law undermine Pashukanis. In fact the converse is true; the fact that social organisations are posited as legal subjects vindicates Pashukanis. Miéville also points out that within administration people are still treated as abstract legal subjects actively asserting rights. Again this is an elegant critique. However, I do not think it is entirely correct. It probably is true that to some extent (and greater than Miéville admits) the legal form is being undermined, but the fact is this can only be explained on the basis of Pashukanis anyway, in that commodity exchange is to some extent altered by monopoly capitalism and its bureaucratisation.

Miéville’s reformulation/clarification of Pashukanis is also fascinating, and it is one that has influenced me. Miéville, shows the legal form is an actualisation of the immanent violence of the commodity form, it is therefore organic to the commodity form. This of course puts a new spin on the “base-superstructure” metaphor, because if the legal form is violence, exercised as an organic part of exchange it is part of the base. Now this might well be a problem for some Marxists but Miéville eloquently formulates a response to this:

It is thus misleading to claim that Pashukanis sees ‘law’ as part of the base, or part of the superstructure. ‘Law’ is a complex of social relations, norms, rules and formal proceeds which, under capitalism, straddles both levels of society.[i]

This nuanced position expresses perfectly one I myself was groping towards. It is incidentally very similar to that of Alan Stone, a man whose insight could well be integrated into a ‘Pashukanian’ framework.[ii] Miéville therefore sees the legal form as subsuming the commodity form, and with it labour power (that which universalises the legal form in the first place).

Pashukanis’ theory of law does not require a state, in fact the early articulations of the legal form were not made by the state at all. Miéville chooses to address the problem of ‘state derivationism’, where the bourgeois state, as an abstract form, is derived from the legal form, Miéville shows the such a conclusion is not seen as necessary by Pashukanis. International law, as a legal without an overarching authority, is therefore seen as the perfect way to understand Pashukanis’ legal form, in its essence. Miéville notes that sovereign states are posited as legal subjects , but with no overarching authority, and interpretation being locked in a never ending series of arguments, how can law be decided. By the violence of imperialism. Miéville shows that far from being opposed to violence the only way international law can be settled in through the violence of an imperialist state. In this way Miéville is able to hold on to the ‘law-ness’ of legal relations, whilst showing such a law is merely the right of the strong.

Miéville then engages in a historical examination, showing how international law only matures with the growth of sovereignty and therefore bourgeois society. He also shows how international law only becomes so when colonies are subjected to the ownership of great powers, thus international law, violence and imperialism have ever been interconnected.

His final chapter is an argument against the global rule of law, since such a rule is invariably the right of the strong, and is inevitably bound up with imperialism it will always be determined by imperialism. Yet by engaging with international law, the left serves to legitimate it, and the relations that give birth to it. As the final (brilliant) sentence of the book puts it:

‘The chaotic and bloody world around us is the rule of law’[iii]

My objections to this book are few and far between. The main one is Miéville’s treatment of domestic law. I feel that he too often assumes the determinacy of the law, and the fact that the judiciary can fill the law with a particular content. Thus I think he ignores the insights he brings to international law. The legal realists and the CLS movement have shown us that the law really isn’t very determinate. I think that greater investigation needs to be done on linking legal realism and Marxism, and emphasis must be put on the role of violence in determining domestic interpretation. The violence is more mediated to be sure (and links will have to be made) but I feel that Miéville takes for granted the power of the judiciary and even the apparent determinacy of law’s content.

I also have several queries about the progressive role of law, whilst I agree that at the current conjuncture law can only serve imperialism I wonder if such a factor is intrinsic. I can think of several instances when force itself might be on the side of progress:

a) International trade unions/working class political organisations – though such a prospect seems weak now it is something to consider. Miéville shows how collective labour was constituted as a legal subject domestically, could the same thing happen globally? Walter Benjamin saw fit to categorise a strike as violence (and law making at that!), could such ‘violence’ force a progressive content into law? The same thing goes here for organisations like the Communist Internationals.

b) Progressive countries, countries that are not quite socialist but are nevertheless progressive could also do this. This point is addressed briefly in the book, but needs more work. I’m thinking for example of Venezuela, which certainly has force both military and economic, and is not internally vulnerable, could such a country force progressive interpretation into the law.

c) Socialist countries. Now I don’t know the IS line on this, but a socialist country might still be a legal subject. The state still exists under the dictatorship of the proletariat, and socialist countries may need to trade, hence they might still be interpellated as legal subjects.

d) Mediated influence. Could a national class struggle change a nation’s policy, or violent power, on a particular issue so that it is progressive? Such a situation does not seem impossible in certain circumstances, especially where Europe is concerned.

Miéville’s book is excellent, and I’d suggest you buy it once it’s available in paperback. The two chapters on Pashukanis would be worth the money, as finally we see an approach to him that is critical, but sees his worth (there have been a severe lack of them). The fact that we share opinions on Pashukanis could only raise the book in my estimations, and I wouldn’t be exaggerating to call this the most important book on Marxian legal theory in a long time.

[i] p. 96
[ii] Alan Stone 1985, “The Place of Law in the Marxian Structure-Superstructure Archetype.” Law and SocietyReview 19:39-67.
[iii] p. 319

No comments: