TWAIL

As I have previously mentioned, I have recently acquired a supreme interest in Third World Approaches to International Law (TWAIL). It all began with Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law. I had been meaning to buy the book for a while, but only actually did it when I was out with a friend (which probably tells you something about me) and decided to go on a bit of a random book buying exercise (I also bought David Harvey’s Limits to Capital). So anyway, for those of you who are uninitiated in the world of international legal theory, I thought I’d talk about TWAIL in general and Anghie’s book in particular.

As a movement TWAIL isn’t just characterised by geographical or national location, instead TWAIL scholars are those who articulate a given political and theoretical visions, one which is seen as the view of the Third World. Makau wa Mutua – another TWAIL scholar, has produced a useful definition of the current crop of TWAIL scholars:

TWAIL is driven by three basic, interrelated and purposeful objectives. The first is to be understand, deconstruct, and unpack the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions that subordinate non-Europeans to Europeans. Second, it seeks to construct and present an alternative legal edifice for international governance. Finally, TWAIL seeks through scholarship, policy, and politics to eradicate the conditions of underdevelopment in the Third World.[1]

I have problems with the second and third objectives – because it strikes me that these two objectives are parasitic upon a theoretical exploration but I’ll return to this later. What I think is useful about this definition is that is sets out rather nicely the central theoretical issues for TWAIL – which essentially concerns the way in which international law has been implicated in the subordination of the non-European Third World to the European first world. Whilst the terminology may not be something I’m entirely comfortable with many of the insights of TWAIL are incredibly useful.

Antony Anghie’s vision of international law is a very interesting one. The starting point for Anghie is a critique of the vast majority of international legal theorising. Anghie notes that for most expositions of international law the starting point is the problem of order amongst sovereign states, but the problem with this position is that it ‘cannot illuminate the prior question of how certain states were excluded from the realm of sovereignty in the first place’.[2] Instead Anghie argues that ‘sovereignty’ was forged in the ‘colonial encounter’, and this dynamic has informed international law ever since. The particular shape of this dynamic is summed up quite nicely by Anghie in the introduction to his book:

International lawyers over the centuries maintained this basic dichotomy between the civilized and the uncivilized, even while refining and elaborating their understanding of each of these terms. Having established this dichotomy, furthermore, jurists continually developed techniques for overcoming it by formulating legal doctrines directed towards civilizing the uncivilized world. I use the term ‘dynamic of difference’ to denote, broadly, the endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society.[3]

What is really interesting about Anghie’s book is the way that it draws out the paradoxes in international law. Every time that international law has extended its reach so as to include the Third World this inclusion has come at a price, it has always ended up excluding the Third World in a meaningful way. The rest of Anghie’s book is concerned with mapping the dialectic of inclusion/exclusion onto the history of international law.

History
I don’t really want to go into a really deep analysis of Anghie’s historical work, but I do think it’s interesting to trace how the dynamic of difference plays itself out. Anghie first examines the work of Francisco de Vitoria, a man often referred to one of the founders of international law (or at least proto-international law). Vitoria’s work arose in the context of the legal issues surrounding Spanish relations with the native ‘Indians’. In marked contrast to his contemporaries Vitoria was willing to extend legal recognition to the Heathen Indians. Vitoria argued that since the Indians possessed reason (again a clear advance) they could partake in the ius gentium – the natural international law that creates a series of reciprocal rights and duties. However, the content of these rights and duties is central, the ius gentium gave the Spanish the right to ‘travel’, ‘sojourn’ and trade in the Indies without molestation and this – as Anghie argues – is the crux of the matter:

While appearing to promote notions of equality and reciprocity between the Indians and the Spanish, Vitoria’s scheme must be understood in the context of the realities of the Spanish presence in the Indies. Seen in this way, Vitoria’a scheme finally endorses and legitimizes endless Spanish incursions into Indian society. Vitoria’s apparently innocuous enunciation of a right to ‘travel’ and ‘sojourn’ extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians.[4]

Thus, although universality to extended to the natives, what is universalised are an idealised version of European internal life. Further, the very extension of this universality to the natives provides a justification for continual European excursion into the Indies. Anghie further notes that since – in Vitoria’s vision – only Christians could wage a just war, the Indians were further deprived of their sovereign power.

Anghie next traces this development in the 19^th century positivist theories of sovereignty. Essentially, the 19^th century positivists wanted to create a ‘science’ of international law. Since they rejected the centrality of Christianity to sovereignty it was necessary to find something else in which to ground it. In this respect the positivists necessarily turned inwards, to the internal character of the polity. The positivists used the criterion of ‘civilisation’ or society as the primary determinant of sovereignty. This model of ‘civilisation’ was essentially that of European civilisation. This had the effect of systematically excluding the non-European world from the universe of international law.

Since the positivists had completely stripped the non-European world of sovereignty it became an area in which the sovereignty doctrine could develop freely.[5] However, Anghie notes that the 19^th century states paid little regard to the precise doctrines of the positivists, instead they concluded treaties and agreements with numerous ‘natives’. In order to explain this international lawyers were forced to develop complex gradations of civilisation, whereby different levels of civilisation would entail different levels of sovereign powers.[6] In practice of course these gradations were merely reflective of the needs of the European powers.[7] It was the case that non-European powers could become sovereigns, but this would necessitate a massive internal social transformation. Again then, universality was coupled with exclusion as it ‘presented non-European societies with the fundamental contradiction of having to comply with authoritative European standards in order to win recognition and assert themselves’.[8]

Thus the dynamic becomes ever more transformative. This is further actualised in the Mandate System of the League of Nations. This system envisaged that under the ‘tutelage’ of European nations, backwards non-European nations might be transformed so that they could ‘stand’ on their own. The Mandate System assumes a central role in Anghie’s analysis, but having been detailing it for dissertation I really don’t want to rehearse it here.

Perhaps my favourite example of the inclusion/exclusion dialectic is Anghie’s examination of the result of decolonisation. Essentially, here the newly empowered Third World attempted to flex its legal muscles. However, its initiatives were stopped in their tracks by several legal doctrines. Firstly, the role of the General Assembly in making law was severely curtailed (the General Assembly being the most representative aspect of the UN). Secondly, it was held that new states were bound by the already existing legal doctrines of customary international law. Finally, the formation of custom cannot come about without near universal agreement among states. The developed world was never going to accept the ambitious economic and legal plans of the Third World – since it contradicted their fundamental interests. Thus, it was that the newly emerged Third World was locked into a system of legal relations that were forged in the colonial period, that it had no part in making and that it had no chance of changing. The inclusion of the Third World in international law excluded the Third World from any meaningful participation:

The contradiction was that even while the West asserted that colonialism was a thing of the past, it nevertheless relied precisely on those relationships of power and inequality that had been created by that colonial past to maintain its economic and political superiority which it then attempted to entrench through an ostensibly neutral international law.[9]

Anghie goes onto describe how this dynamic is reproduced by international financial institutions and the war on terror (the latter being – in my opinion – the weakest part of the book) . Again I think he makes a fairly convincing case for these continuities.

Analysis
Anghie’s book is a masterpiece. That’s it. It is the first book I have read that shows international law’s dark history, and it’s worth reading for that alone. I also think that Anghie’s analysis of the ‘dynamic of difference’ is an interesting and convincing one – that helpfully undermines some of the more ambitious claims of international law and international lawyers. This being said I have some real issues with Anghie’s work. My critique of Anghie’s work is structured by two basic ideas, each of which runs against each other.

Firstly, Anghie has an under-theorised conception of resistance in his work. He briefly considers it in relation to Vitoria, but there isn’t much anywhere else. This strikes me as unsatisfactory. In Anghie’s book there are occasions in which the Third World seems to merely be the passive object of the colonial powers. As one of my classmates has argued, this seems to produce the very assumption that TWAIL would want to fight – that of the Third World as passive victims to whom stuff happens.

However, my second critique would undermine this somewhat. I don’t think being committed to the centrality of resistance in analysis means we have to collapse into some ‘force of wills’ type analysis. What troubles me about much of Anghie’s book is that although he beautifully describes the what and the how of international law’s connection with colonialism he doesn’t really much into the why. Anghie acknowledges that this is an issue, and – risibly – attempts to come up with a possible explanation right at the end:

Sovereignty, then, is intimately connected with imperialism. The deep and enduring inequalities of power that afflict this planet might be attributed, simply, to inequalities in power: the strong dictate and the weak must comply. But power rarely presents itself simply as brute force, as shock and awe. Rather, it presents its violence in terms of an overarching narrative, and there are few more compelling stories that power can relate about itself when expanding than the great imperial narrative in which ‘we’ are civilized, peace-loving, democratic, humanitarian, virtuous, benevolent and ‘they’ are uncivilized, violent, irrational, backward, dangerous, oppressed, and must therefore be sanctioned, rescued and transformed by a violence that is simultaneously, defensive, overwhelming, humanitarian and benevolent. The furtherance of justice, the promotion of humanitarianism; these are the great goals that imperialism has traditionally set itself.[10]

So for Anghie it all comes down to power. But this of course raises questions of itself in relation to what power is, how and why inequalities arise, how power is maintained. More fundamentally, Anghie doesn’t really show why it is that the law is able to embody – so completely – a specific type of power. This is where Pashukanis (scroll down to the bottom) and Miéville become especially useful. Miéville and Pashukanis both locate the amenability of law and imperialism in the structure of the legal form itself. I personally would argue that Miéville’s model is probably a little bit too simple, but I’ll save that for another day.

The point is though, that unless Anghie is able to analyse whether or not there is some structural connection between colonialism and the international legal form he is unable to fulfil the second of Mutua’s tasks of TWAIL. If international law is structurally biased towards imperialism, then presumably it can’t be ‘reformed’. Instead new forms of international intercourse need to be imagined that transcend international law.

Thus, I think the twin poles of structure and agency are missed by Anghie, which seriously undermines his analysis. For what it’s worth I think that the agency of the Third World is vastly important here. But this agency is necessarily articulated through a legal form. This legal form is structurally produced by international commodity exchange, and therefore international capitalism. This means that the resistance exercised through said form ultimately reproduces the logics embedded within it. Thus, the structure of internationally law thwarts the agents within it – and reproduces the ‘dynamic of difference’. This position is the starting point for my own theoretical stuff, of course, it is more complicated than this, but this does provide a basic framework. Anghie then is brilliant but incomplete, what he needs a theoretical framework through which to elaborate his insights.

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[1] Makau wa Mutua, (2000) What is TWAIL?', Proceedings of the 94th Annual Meeting of the American Society of International Law 31 at p.31

[2] Anghie, Imperialism Sovereignty and the Making of International Law, 2005, Cambridge University Press, p.6

[3] Ibid., p.4

[4] Ibid., p.21

[5] Ibid., p.64

[6] Ibid., p.71

[7] Ibid., p.71

[8] Ibid., p.107

[9] Ibid., p.215

[10] Ibid., p.317

Philip Allott on International Law

Philip Allott has always held great interest for me. Although I have never read his two (apparently very good) books, I have read some of his articles on the European Union, which I found extremely informative. From what I have read of him (and indeed what I saw of him today) he strikes me as slightly contradictory, insofar as he feels very much of the establishment yet at the same time his work can be located firmly within the critical tradition. Anyway, today I braved the icy Cambridge weather (and the deadly dull atmosphere of the Cambridge Law Faculty – I was there for hours reading Aquinas) to hear a talk by Professor Allott entitled International Law and the Transcending of Politics. Anyhow it was a pretty interesting talk, so I’ll just give a rundown on what he argued, before putting forward my own thoughts on it.

Allot’s talk was based on a conference he attended on ‘The Politics of International Law’, this – apparently – struck him as odd, owing to the fact that international law and politics stand in opposition to one another. But on reflect Allott finds three different things that this could mean:

• The politics of the existence of international law – that is to say, ‘who benefits from the existence of international law?’
• The politics in international law – that is to say how are politics transformed into international law
• The political abuse of international law – this is self-explanatory

Three Assumptions
Allott’s talk was structured by three assumptions. Firstly, there was his – very odd in my opinion – ‘prescriptive’ definition of politics. Essentially for Allott politics is the organised social struggle (good so far) to turn self-interest into common interest. Now, it strikes me that this definition is a little bit odd. I personally am tempted to read it in a Gramscian way (as I tend to do) and therefore take his definition of ‘the political’ as one of hegemony – e.g. one class/group attempts to make its self-interest appear as the common interest. I don’t think this is what he intends, so I think he takes it more seriously, politics is a genuine attempt for people to negotiate some common interest out of their conflicting self-interests.

Allott’s second assumption is that international law is law. This is something I am more than happy to endorse (once we properly theorise the law of course). What Allott correctly stresses is that international law is a particular type of law. The important point though is that law is distinct from politics, which I think is entirely right. Allott’s final assumption is that law cannot be understood without understanding society, and therefore international law cannot be understood without understanding international society. As a good Bolshevik I again cannot dispute said assumption.

Constitutions
Allott argued that international law is structured by five constitutional paradigms which are (in no particular order): state, government, territory, nationality and law. It is further structured by four principles – independence, territorial integrity, national jurisdiction and sovereign equality. The sum total of these principles is what non-international lawyers usually call sovereignty (I think I’d call it sovereignty too, but apparently I’m not your typical international lawyer).

The international and national realms have different constitutions. In the national constitution ‘the people’ is typically seen as the central actor or subject, whereas in the international constitution the state fills this role. Thus, in the national constitution power relations are vertical the government is ‘above’ the people, whereas in the international sphere power is horizontal – there is no formal overarching authority. These two constitutions exist simultaneously but are not integrated, rather they exist in constant tension a ‘tolerated coexistence’.

In the international sphere there are two main social processes through which change is achieved – namely diplomacy and war. This is how international law evolves dynamically, for although there is the UN, IGOs (international governmental organisations) and international courts and tribunals, these do not relate to each other in a formalised, structured way. There is also a massive amount of international law, particularly treaty law. Furthermore, there is a constant exchange between the national and international spheres, thus we live in a world that has changed significantly from the period of classical international law but the fundamental structural relations remain the same.

What we have is a ‘global social contract’, in order to interact in international society it is necessary to move within its constitution and to obey its laws.

Cui Bono?
Allott’s opening line here was something along the lines of ‘you don’t have to be a Marxist to be a realist’, he’s right (because realism in its international relations context is pretty lame anyway), but it certainly helps (provided the ‘realism’ is decent). Allott identifies give obvious beneficiaries of the above state of affairs:

• The people of the world, who benefit from relative stability as opposed to the law of the jungle
• Participants in the world economy – again because of the relative stability, the lack of war meaning there is an increased opportunity for trade etc.; Allott said something along the lines of capitalism being a creature of the law (he seems to be taking a Weberian standpoint about rational calculation, capitalism and the law – I don’t agree with it entirely)
• The international ‘haves’ – since the international system is able to maintain vast inequalities
• The executive branches of governments – because internationally the executive branch usually have a fairly free hand internationally, certainly in comparison to the freedom they usually have domestically
• Aristocratic governments, by which he means the ‘master states’ in the world order, who are able to use their power to determine the structure of the world order

And – then – there are the losers:

• The have-nots
• Victims of war, international crimes and bad diplomacy
• Transnational actors: although they are able to make some short-term trades etc. they are not able to make long-term plans for investment etc., since the world order is so uncertain
• National constitutional organs - increasingly the international sphere is usurping power from the more ‘accountable’ organs of the nation-state
• People who suffer from legitimised tyrannies – since the ‘state’ is the primary actor in international affairs (irrespective of its internal organisation) it gains a certain level of protected legitimacy, this means the people inside of such tyrannies suffer the consequences (this is rather a ‘decent’ point, but I don’t think it’s without merit

How is politics transformed into international law?
This was Allott’s ‘favourite’ interpretation, and I certainly found it the most interesting part of his talk. Allott argued that in order for us to understand the way in which politics is transformed into law it is necessary for us to understand the function of law. Allott’s basic argument is that the function of law is to transform politics into a particular form. That is to say that law is some particular form of politics. I think this observation is a brilliant one, and ties in with my more general theoretical preoccupations. The usefulness is seeing law as a particular way of articulating the political is that it allows us to see law as a specific social phenomenon, without losing sight of its material context.

Allott went on to examine how it is that international law is able to transform and articulate politics. Firstly, international law articulates politics through treaty making. Against the dominant trend of seeing a treaty as a thing Allott treats it as a process – of negotiation, adoption and interpretation. At every stage of this process there is political struggle, particularly over the meaning of any given treaty. But the point is that this never ends, a treaty is a ‘being’ in a permanent state of becoming. Thus, politics is constantly articulated in this way – it becomes ‘a disagreement in writing’.

A similar, but deeper, example of this can be found in the formation of customary international law. For those of you who don’t know, customary international law is that type of law which is not ‘written down’ in treaty form. It is basically formed of ‘state practice’ (i.e. what states do) and opinio juris, which is the subjective ‘belief’ on the part of the state that what it is doing is in respect of a particular legal obligation. Here the connection between the legal and political is immediately obvious, but with an added dimension. States and lawyers are constantly ‘secreting the potentialities of law’ and they are aware of the fact. This means that law is embedded in state practice and constantly the shapes the way it is articulated.

This creates a dialectic between the past, present and future. There is an infinite network of ever present law, which constantly takes in past behaviour so as to create law to shape the future conduct. In this way the ‘common interest’ of the past is constantly shaping the behaviour of the present.

The use and abuse of international law
Allott noted that international law is particularly vulnerable to abuse, lacking as it does a state, or any particularly defined constitutional structure. International law has a theory of representation, insofar as states are monads and form its primary agents. This leads to an aggregation of the people of a nation to its state. All of this leads to a ‘constellation of pathologies’ that afflict international law:

• Abuse of uncertainty – precisely owing to the lack of any body capable of making authoritative determinations on the law, international law is ‘open textured’ and uncertain, this means that governments are – by reference to their cadres of international lawyers – justify any result in international law they might like
• This is not a problem exclusive to international law, indeed it afflicts national law as well – indeed as Allott notes, without uncertainty in the law there would be no lawyers (and there really are a lot of us)
• Abuse of certainty – however, in certain instances international lawyers ‘go mysteriously definite’ and argue that there is a given answer to particular legal questions, brooking no contradiction
• Instrumentalism of the law: law is easily able to become an instrument of power, owing to the supremely unequal distribution of wealth and power – the formal equality of the law is not able to curb this
• Spurious legitimation: Allott (very interestingly) argues that international law tends to colonise questions of politics and morality; thus it treats serious political and moral questions as simply questions of ‘doctrine’ or ‘interpretation’ without mounted a sustained argument on the moral or political grounds
• 'Law takes beautiful ideas and converts them into lawyers’ playthings'
• It also tends to lend a spurious legitimation to those areas it regulates, hence, since war is ‘regulated’ by war, it suddenly seems to be ok – wars within the rules are fine
• Finally, international law is vulnerable to ‘improper extrapolation’ whereby national forms are incorrectly transferred into the international sphere, particularly important here is that vacuous ideological obfuscation that is ‘the rule of law’

Thus, for Allot law transcends politics in three ways: by being politics; by transforming politics and by modifying practice. The relationship between law and politics is therefore (as I would put it) a dialectical one, although politics may predominate in given conjunctures.

My thoughts
I have to say that I found the talk to be pretty fascinating, particularly as it melds with my own position. As I have said, I have a theoretical preoccupation with trying to create a ‘dialectical’ analysis of the content of law, which Allott makes a pretty good stab at doing. This is further reinforced by his engagement with the idea that it is the legal form which is able to articulate this content and change it. In this way, he seems to mirror the Marxist position on the relationship between form and content, which understands that forms are not ‘empty sacks’ but fundamentally alter that which takes place within them. This is – of course – a classical position within Marxism:

What is a Negro slave? A man of the black race. The one explanation is worthy of the other. A Negro is a Negro. Only under certain conditions does he become a slave. A cotton-spinning machine is a machine for spinning cotton. Only under certain conditions does it become capital. Torn away from these conditions, it is as little capital as gold is itself money, or sugar is the price of sugar.

I think – perhaps – the weakness in Allott’s argument is that he doesn’t really develop much of an analysis of what the legal form is, and where it comes from. Unless this is done, it becomes particularly difficult to try and work out the effect that the form is able to have on the politics articulated within it. For this – I think – we need to make the turn to Pashukanis. Furthermore, I obviously am not a huge fan of his definition of politics, I tend to think that we need a class/materialist analysis of politics, as opposed to the ‘common interest’ line developed by Allott. That being said common interest does have the appeal – when done properly – of being linked with Gramscian notions of hegemony.

This also means that he finds it difficult to diagnose the ills of the international system, and the problems with it. I tend to think that the haphazard structure of the international sphere is not some arbitrary thing but is a result of the fundamental social relations of the international sphere and the legal form that comes with them. On this basis we’re never going to see a world government, at best we will see the hegemony of certain of the core states – which may be expressed through certain formal organisations. This means that political problems that afflict international law might well be here to stay.

Comments on Criminology

LWC over at Leftwing Criminologist has done us all a service by publishing his revised Draft Principles of Marxist Criminology. I thought it might be fun to take a critical survey of his points. I should premise this by saying that I am not a criminologist. I am a law student, with a particular interest in Marxist legal theory. This being said, I think criminology and legal theory (particularly in the Marxist tradition) go hand in hand, and I’ve read a fair bit of criminology stuff; so I’ll give it my best shot.

1) There should be no seperate marxist theory of crime, rather marxist theory is applied to it. For example we would explain the aetiology (cause) of crime through ideas such as alienation, relative deprivation or as the normal workings of the capitalist system rather than any special causal mechanism.

I would definitely agree with this because I am generally of the opinion that there is no separate Marxist theory of anything. Precisely because Marxist attempts to engage with the totality of social relations, any ‘division’ between the subjects is simply one of convenience. But – and I think this important – this convenience factor does need to be taken into account. Occasionally, because of our totalising theoretical position, Marxists can be a little bit arrogant. Although we shouldn’t defer to expert opinion, the very fact that this is a Marxist approach to criminology shows that we understand the important of relative specialisation.

2) Crime and criminal justice system should be understood in a criminal historical materialist context, we should look at their development to their present conditions. Allied to this would be an understanding that the economic context of a situation would have an impact on what types of crime are prevalent and how these will be responded to.

Yep.

3) A marxist approach is moreover a class approach and sees crime to an extent as an expression of the conflict between classes in society. This is important in several important ways. Firstly, the ruling class in any each will have more power to define what is crime and to manage responses to crime in their interest. Secondly, crime disprortionately affects the working class, and they are disproportionately punished for this.

I would agree with the ‘opener’ that class (and class struggle) remain central to a Marxist criminology. I would also agree that the ruling class in every epoch have ‘more power’ to define a crime (although I would want to analyse more complex relations than this), although this is parasitic on other – more contentious – Marxist analysis. However, I take issue with the last part of this analysis. Although it probably is the case that crime disproportionately affects the working class it strikes me that this should be a subject of investigation not a principle (which would structure such investigation).

4) A marxist approach is also an internationalist approach. We should understand crime ot just in one country, but across the increasingly globalised world.

Yes. Although criminology in one country, is entirely legitimate too, as the nation-state and national law remain central to much of criminal law. It strikes me that this is not just a theoretical approach, but very much a practical one. Really, what needs to be done is the construction of a series of international networks, where Marxist criminologists are able to come together and exchange ideas, data etc. I think this is the way that we can come to a meaningful international criminology. I also wonder whether there has been much sociological work done on international criminal law.

5) We should attempt to understand the effect of crime and the operation of the criminal justice system, not just on the working class, but on the rest of the oppressed layers in society.

Yep. Although I also think – for completeness – that any analysis of the oppressed layers of society, will also necessitate us examining the impact of crime and the criminal justice system on the oppressors too. Basically, I’m all for expanding our analysis to encompass society as a whole, as this is what gives us the complete picture. Also, in examining the impact of crime etc. on the ruling class, I think we’re able to explore more fully the ideological role of the criminal justice system. Intuitively I also think that criminal law is used to discipline members of the ruling class, and to give their actions legitimacy.

6) As well as studying crime in ‘normal’ capitalist society, we should also seek to study what happened to crime and criminal justice during revolutionary periods and also in states that have claimed to be socialist.

Absolutely. It seems to me (from my admittedly rather meagre knowledge of criminology) that this is an area in which the research is rather scant.

7) The role of the state, which the criminal justice system is part of needs to be examined thoroughly. It’s contradictory aims of upholding the rule of capitalism but also in having to legitimate itself through doing something about crime needs to be explored.

Hmmm. On the one hand this gets at issues I was talking about earlier. On the other hand, I tend to think that Marxists (and especially Marxists concerned with the law) are a little bit obsessed with the state. On the basis of my engagement with Pashukanis I tend to argue that the state is important but not essential to the law, both in terms of form and in terms of content. I tend to think that excessive focus on the state can lead to an overly agent-driven conception of law, crime etc., in that we start to see the content as the ‘willed’ law of the state. Whilst this has its place, I think we constantly need to return to the economic factors LWC alludes to above. My opinions on this issue can be found here.

8) We should seek to review how the workers movement has addressed the question in the past, as well as various intellectuals who have tried to put across arguments from a similar perspective (ie. Foucault, Jock Young etc.)

I definitely agree with this point. I’d also point out that the 1960s an 1970s produced a wealth of Marxist legal theory and Marxist criminology (Robert Sparks, Piers Beirne, Steven Spitzer, Colin Sumner, Richard Kinsey, Robert Fine, and there was of course the most excellent theoretical collective of the National Deviancy Conference, whilst culminated in their brilliant collaboration with the Conference of Socialist Economists). Sometimes I think Marxists working in the field of the law tend to forget our past, but I think some absolutely crucial theoretical gains have been made, and we would do well not to forget them.

Also, I think that Marxists should also engage with ‘bourgeois’ criminologists. Although I am not a criminologist my own theory work has been greatly enriched through a study of classical liberal political theory and contemporary ‘bourgeois’ jurisprudence. I tend to think that Marxists should enthusiastically embrace any tradition that takes our fancy, critically evaluate it and incorporate what is good into our own theoretical framework.

9) As Marx says in his theses on Feuerbach, "Philosophers have hitherto interpreted the world, point is to change it". We should analyse crime and the criminal justice system from the point of the working class. We should put forward ideas of how a socialist/communist society would aim to solve these problems, and fight for these to be adopted.

Again, I am largely in agreement with this. I am somewhat guilty of not properly addressing this point. I have always intended to do something substantial on the ‘withering away of the law’ and some (basic) analysis of law in ‘actually existing socialism’, but after my blog went on hiatus I never got round to it. This being said, I don’t like people who argue that Marxism is a purely ‘instrumental’ philosophy – meaning that the only ‘correct’ theory is that which is useful. Such slavish devotion to praxis has historically led to somewhat nasty results (Lysenkoism anyone).

All in all, then, I think LWC is onto a winner, however, I will just make a few more, non-specific comments on my approach to criminology. Firstly, then our starting point, for me, is something that Marx said:

There is no doubt something specious in this formula, inasmuch as Hegel, instead of looking upon the criminal as the mere object, the slave of justice, elevates him to the position of a free and self-determined being. Looking, however, more closely into the matter, we discover that German idealism here, as in most other instances, has but given a transcendental sanction to the rules of existing society. Is it not a delusion to substitute for the individual with his real motives, with multifarious social circumstances pressing upon him, the abstraction of “free-will” — one among the many qualities of man for man himself! This theory, considering punishment as the result of the criminal’s own will, is only a metaphysical expression for the old “jus talionis” eye against eye, tooth against tooth, blood against blood. Plainly speaking, and dispensing with all paraphrases, punishment is nothing but a means of society to defend itself against the infraction of its vital conditions, whatever may be their character. Now, what a state of society is that, which knows of no better Instrument for its own defense than the hangman, and which proclaims through the “leading journal of the world” its own brutality as eternal law?

This is one of my favourite passages in Marx, and I think it is really quite fruitful for a Marxist criminology. Although Marx is addressing ‘Hegel’ and German idealism, he attributes this more broadly to ‘the point of view of abstract right’, which I am going to take more broadly as implication the criminal law (because it mirrors these general philosophical premises):

• Criminal law makes the abstract ‘free and self-determined being’ its central subject
• This ‘subject’ is ‘delusional’, as it fails to address the ‘real’ motives of a criminal
• These real motives are a complex combination of social and economic ones
• Punishment is a means of a society ‘to defend itself against the infraction of its vital conditions’

In some respects then, Marx is in complete agreement with LWC (although it misses some of the direct class references, this can of course be inferred from the more general materialist position). He stresses the social character of punishment, the way in which economic forces shape crime, the connection between a social formation and its criminal law etc. etc. But I also think that Marx poses us a novel – and in my opinion vital – programme of research.

Marx notes that the criminal law treats its subjects as ‘self-determined beings’. He also notes that this is a ‘delusion’, in that the conception of responsibility here espoused cannot account for the individual’s insertion into a complex totality. But it is obvious to everyone, that this is the case. So the question then becomes why it is that the criminal law operates on self-determining subjects. This is where I think Marx is brilliant, here he utterly rejects the academic division between criminology/sociology on the one hand and legal theory/jurisprudence on the other. Criminal law is a course a type of law, so when we examine the function of criminal law, we need to have some idea of its material determinants. But equally, when we make a theoretical examination it has to be one rooted in a historical sociology.

In the academy this connection is typically underplayed. Criminology is often seen as ‘only’ an empirical project, which is subordinate to jurisprudence. On the other hand jurisprudence is often seen as ‘too abstract’, or theoretical, or unconnected to sociological investigation. Further to this of course, is the division between legal history, legal philosophy, the sociology of law etc. I think that Marxism explodes these distinctions and it is right to. This is the one element I would like LWC to emphasise even more than he did. This is where I think blogging actually proves quite useful, a productive exchange between legal theorists and criminologists. Which incidentally is why LWC’s idea of a ‘left and crime’ blog is a good one, but I think it should be expanded even further, into a left and law blog.

All in all though, a good start.

Navel gazing

Well, seeing as I have revived this blog from limbo, it seems quite useful to take stock of where it’s been at over the past few years (!) and what I think it’s about now. When I first started this blog its aim was to try and jot down some of my theoretical musings on law. The consistent thread running across all of this was of course intended to be that of Marxism. To be honest, not that much has really changed since them. My primary object of theoretical analysis is still the law and my primary theoretical method is still that of Marxism.

That being said, there have been some fairly big shifts in my main theoretical interests. Firstly, whereas I previously nursed an interest in the American Legal Realists, this has largely subsided in recent times. I put this down to the fact that I got most of the Realists out of my system, and feel like I’ve done all I can with them. Also (and importantly) my interest in indeterminacy has shifted a bit towards (dum dum duuuuuummmmm) Carl Schmitt. I find Schmitt’s demolition of liberalism to be really quite interesting, and am hoping to write a little bit more on him. I’ve also found some interesting parallels between Schmitt and Pashukanis.

Secondly, my interest in the Critical Legal Studies movement has (for the moment) become more refocused on the Third World Approaches to International Law (TWAIL) movement. I have found TWAIL to be absolutely fascinating, and they’ve taught me things about the colonial history of international law that I never knew. I might (at some point) post a review of Antony Anghie’s Imperialism, Sovereignty and the Making of International Law, one of my favourite TWAIL books. Thirdly, I have really rekindled my interest in ‘bourgeois’ theories of law, and the place of legal theory in classical liberalism. My reacquaintance with Hobbes (who I think is wonderful) has been quite fruitful.

The biggest change, though is my overall, strategic orientation to questions of theory and of the law. Increasingly I have viewed my work as structured by an overall project. You can see twinges of this in my (somewhat inebriated) post, here. Essentially, I am trying to articulate a theoretical position that goes beyond simple r-r-revolutionary trashing of the law, and acceptance of the idea that law is neutral instrument through which any old interest can be articulated. This was basically the content of my presentation to the Historical Materialism Conference, and it has caused me to re-think some of my positions (particularly regarded China Miéville’s Between Equal Rights). Anyway, long may it continue.