Tuesday, March 21, 2006

Martti's materialism?

Well, to those of you who still read this (and hopefully those who check up once in a while) I think I’ll be back online for the foreseeable future, although revision may mean it’s rather sporadic. Lots of horrible things have happened since my last post – like me finally leaving my beloved teenage years and turning 20 and me being past the halfway point of my undergraduate degree.

Anyway, I’ve been reading a ton of Koskenniemi as of late and am enjoying him immensely. I’ve begun to dent From Apology to Utopia, which is an awesome read (and is surprisingly readable too) and have been reading a fair few articles. Anyway, one thing I’ve been wondering is whether Koskenniemi has become more and more materialist as time goes by, and therefore whether one can take his old work as ‘seriously’ as his later work.

In fact one thing that really irritates me about From Apology to Utopia, is that Koskenniemi roots the problems of international law in political liberalism (as a purely ideological phenomenon), rather than in any specific material conjuncture. However, the account in apology (particularly that of the growth of the ‘liberal order’) is actually very materialist. Koskenniemi’s real problem here is that he fails to properly situate bourgeois freedom in its material context. Contra Koskenniemi I would insist that while the destruction of the feudal order and liberal politics are linked the movement is occasioned by a deeper material shift (one day I will post a skeletal account of this but I think there may be something is some of my ‘what is law’ posts too).

However, every so often I see something that totally jars me. Take for instance his account in The Police in the
Temple Order, Justice and the UN: A Dialectical View.[1] I think my biggest problem is that in this sort of work Koskenniemi posits the structuring categories of international law as ‘normative ideals’, take his account of the relationship between sovereignty and power:

The very need for and definition of order are normative statements in their own right: conceptualizing ‘order’ in terms of stability, peace, or the ‘securing of the elementary needs of the relevant group’ creates an axiological system with a normative premise. So does the definition of the basic units (States, say) or the basic concepts describing their relations (sovereignty, say).[2]

Here he posits states and sovereignty as ‘normative statements’, which are therefore ‘external to the fact of power and claim to provide a measure for its acceptability’.[3] This is where I think that China Miéville’s approach is far superior. The structuring concepts of international law are not mere statements ‘external’ to the fact of power; they are objective categories through which power is articulated.

Furthermore, I think this definition is based on a very narrow notion of power, and one that ignores power as a structural category. Although one might say that sovereignty is not immediately connected to any particular geo-political balance of power (e.g. the
US would love to just be able to invade everyone), one can easily connect it to the broader category of imperialism. Now, I really don’t want to go into the connection between imperialism and international law so I’d suggest you read China Miéville – plug – and possibly re-read some of my earlier stuff about the relationship between the commodity and legal form.

Now, if it is borne in mind that the structuring categories of international law are rooted in exploitative power relations in the material ‘base’ of the international order, then saying that it is ‘external’ to power becomes much more problematic. These ‘normative statements’ are in fact intimately connected to power in its organic sense, insofar as both are anchored in the same system. Of course the two exist reciprocally, insofar as power is constitutive of the international legal order but also exercised through this order.

Koskenniemi seems to recognise this in his later work, which is what leads me to question his older work’s usefulness. In What Should International Lawyers Learn From Karl Marx?[4] he says:

Again, when we seek to answer the question about legal authority (sovereignty) with regard to a piece of territory or a group of people, we look into both what it is that history has produced (‘effectiveness’), and what ideas of just government might tell us (‘legitimacy’). Much of the law on territory and jurisdiction captures this opposition – though none of it is able to explain exhaustively why ‘effectiveness’ should trump ‘legitimacy’ (after all, ex injuria non jus oritur) or vice-versa (after all, ‘rights cannot be presumed to exist merely because it might seem desirable that they should’). Neither is able to override the other because their opposition is part of the discursive world in which they belong – which they, in fact, create. Notions such as effectiveness and legitimacy (like consent and justice) interact dialectically: effectiveness creates legitimacy while legitimacy singles out the types of effectivités that have normative value (in contrast to those that are merely contra legem).[5]

Now although this is a slightly different context here we see that Koskenniemi has problematised the relationship between ‘power’ and ‘legitimacy’ to a much more accurate degree. Legitimacy is now seen not as external to power, but constituted by it. However, he does not take the next step, a step outlined rather interestingly in a footnote in Istvaan Meszaros’ Beyond Capital:

As we can see Weber turns everything upside down. For it would be much more correct to say that the objective needs of the modern capitalist state gave birth to its class-conscious army of jurists, rather than the other way round, as Weber claims with mechanical one-sidedness. In reality we find here also a dialectical reciprocity, and not a one-sided determination. But it must also be added that it is not possible to make more than tautological sense of such reciprocity unless we recognize – something that Weber cannot do because of his far from neutral ideological allegiances – the übergreifendes Moment (the constituent of primary import) in this relationship between the ever-more-powerful capitalist state, with all its material needs and determinations. And the ‘jurists’ happens to be the former.[6]

Of course one needs to be a thoroughgoing materialist to actually break this dialectical cycle but Koskenniemi has moved beyond his older division of ‘power’ and ‘justice’. A materialist account would also have to look at what ‘justice’ is and how it is determined, justice as an ‘ideological’ category is obviously materially contestable. Again Koskenniemi seems to notice this in his What Should International Lawyers Learn From Karl Marx?, where he urges us to ‘analys[e] the play of legal dichotomies, not in terms of an abstract logic of concepts but as a series of articulations of positions in concrete, historically situated political struggles.’[7] And rather dramatically:

Thus, for example, the unresolved tension in Marxian thinking between self-determination and internationalism can finally be seen not as a theoretical failure but an openness to what can be attained through praxis. Many have pointed out the interdependence of these two opposing notions. For Marxian thought they present not a problem to be resolved, but a horizon of political possibility. Whether one would prefer action within a national or an international frame remains then a pure issue of situated reason, of addressing the consequences of alternative choices, and not a derivation from some abstract and unhistorical either-or theory. Against Rosa Luxemburg, Lenin was right. Only the historical situation can tell; only praxis may achieve.[8]
Now, one wonders whether praxis is the correct word here. In the Marxian canon praxis usually refers to conscious, theoretically informed practice. But here he cannot merely be talking about the practice of Marxists or the socialist movement, as this practice has to be considered (when one talks of the field of international relations) as a struggle in a particular material context.

This isn’t just Marxian materialism – it’s fully blown Leninism, one is tempted to invoke Lenin’s much maligned polemic (one which incidentally I am in love with) – ‘all arguments about freedom and equality should be accompanied by the questions: freedom for which class, and for what purpose; equality between which classes, and in what respect’. But the problem here is that one can no longer say – ‘the point is that they are external to the fact of power and claim to provide a measure for its acceptability’

The standards are no longer external to power, power is definitionally vital to ‘standards’. Now one might perhaps say here that power is not constitutive, merely interpretative but I would have words to say about that. Firstly it is rather ridiculous to separate a standard's ‘creation’ from its application - such formalism doesn't really tell us very much about how the law works. What a standard was 'supposed' to mean is a rather unimportant question, especially when dealing with the law. Secondly, there is still the more complex view on the link between the legal form and imperialism, one which simply cannot be ignored.

If this post makes no sense, please note it was written at 1AM, after I am sure I burnt out from reading some horrible article on custom…

[1] 1995 6 European Journal of International, p.325

[2] p.330

[3] p..328

[4] 2004 17 Leiden Journal of International Law 229

[5] p.238

[6] p.257, n.36

[7] p.240

[8] p.242