Friday, February 15, 2008

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.

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.

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