The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of PoliticsBill Bowring (2008) Routledge Press Sorry for the decided lack of posts. It’s been an annoyingly busy month, with not all that much achieved. However, at the very least I’ve managed to churn out 13,000 more words for my dissertation and got some reading done. The main bit of reading I’ve done this month is Bill Bowring’s The Degradation of the International Legal Order?.Bowring’s book can be seen as part of the recent wave of Marxist approaches to international law, and indeed represents a concrete intervention in many of the contemporary debates.
The first point to note about the book is (conversely but somewhat tellingly) is to be found in the Conclusion, where Bowring notes that the work is not a systematic or methodological exposition of his views, and he’s not exaggerating. Thus arises my main problem with the book, in that I think it’s a little bit disordered. So, firstly I’m going attempt to reconstruct Bowring’s argument in a way that I think it helpful, and as I understand it, following this I will of course give my opinion on the matter.
Bowring identifies himself as working within the theoretical tradition of Aristotle, Spinoza, Hegel and Marx. His Marxism is itself deeply influenced by the earlier Bhaksarian critical realism and the ‘value form’ approach to Capital, best exemplified in recent times by the fantastic work of Chris Arthur. His approach is best exemplified in the Introduction, where Bowring quotes Arthur to the effect that:
[Rubin] stresses that all the material and technical economic processes are accomplished within definite historically specific social forms. Things, such as commodities, are assigned a social role as mediators of production relations.
Bowring argues that ‘[t]his is a very different approach from that of Pashukanis’, I will have more to say on this later, but for now it is worth noting that Bowring perceives himself as working against a specific trend in Marxist theory. Bowring argues that a good deal of critical work see human rights as mere rhetoric, whereby their content is merely decided by the powerful and impedes the struggles of the oppressed. Bowring insists that doing this ‘strips them of the content ... they have, historically and in the present’. At this point is seems wise to examine the extended theoretical investigations that Bowring engages in towards the middle of his book.
Bowring’s first theoretical reflection is on ideology. His starting point is the (also excellent) work of Susan Marks in The Riddle of all Constitutions. Essentially, here Marks moves through a number of different meditations on ideology; she sees ideology as being ‘material’, insofar as it is a function of the way that meaning is generated, conveyed, apprehended and appropriated and the way in which meaning can establish and sustain domination. Marks argues that ideology employs 5 strategies – universalisation, reification, naturalisation, rationalisation and narrativisation. What Bowring takes from this is the essential idea that ideology makes radical change seem irrational and indeed impossible.
Bowring uses this foundation to examine the work of Habermas, who he argues is ultimately an apologist for the German state, insofar as the foundation of his rights theory is essential the existence of the contemporary German state, Bowring views this as a typical example of ideology. However, Bowring thinks that although this type of immanent critique is powerful, we need to ask how it is possible to move from this to provide reasons for engagement and action. Instead we have to turn to the classical Marxist concept of science, which seeks to understand the inner nature of things. Here Bowring turns to Adorno and his specific conception of dialectics, the essential insight drawn here is that concepts do not exhaust their object, so what must be done is to think substantively (as with Hegel, Marx and Adorno):
Therefore, to recapitulate, what I am arguing is that dialectics, with its method of immanent critique, is the opposite of identity thinking, derived from the philosophy of Kant, which Adorno so mercilessly exposes. Dialectics provides the bridge from critique to engagement in the real world.
On the basis of these considerations Bowring argues that we must try and think substantively about human rights (Chapter 6). Thinking substantively about human rights involves realising that since freedom and autonomy are the subjects of real struggles in the real world they cannot simply be viewed as rhetoric. This begins with an examination of the work of Alisdair MacIntyre (the ‘revolutionary Aristotelian), who is often taken as being a ‘human rights nihilist’. Bowring instead interprets him as arguing for a socially embedded, historical accounts of rights as against the typical sterile liberal picture (Bowring views MacIntyre as a superior critic of liberal to Schmitt). Bowring next examines the work of Tasioulas, who argues that rights need to be seen in terms temporal relativity, that is to say that human rights are possessed by all humans qua humans but necessarily in all times and all conditions. Bowring argues that this examination of temporality ought to be further historicised, he notes that the ‘three generations of rights’ (political rights, economic and social rights and people’s rights) track the three ‘great revolutions (French Revolution, Russian Revolution and the anti-colonial struggles).
Bowring deepens this political conception of human rights in the fascinating Chapter 7 of his book. Here he basically interrogates the work of Alain Badiou (who he argues is a defining philosopher of our age) and Slavoj Žižek. In his Ethics Badiou argues that the return of the doctrine of natural rights (and human rights more generally) can only be seen in relation to the collapse of revolutionary Marxism. Central to Badiou’s conception of history is the notion of the Event – a purely haphazard happening that cannot be inferred from the situation. The Event is one dimension of the truth process, which is composed of the Event, the fidelity (the process of the continuing break the Event represents) and the truth (which is what fidelity gathers and produces). For Badiou, human rights serve as a block on the Event, as they confirm the absence of any alternative project. But with Bowring’s conception of substantive human rights, he asks another question:
The question I pose, within Badiou’s problematic, is whether the material effects of the theory and practice of ‘human rights’ could on the contrary have a political content, part of the ‘fidelity’ to the event.
Bowring’s engagement with Žižek is very similar to this. Žižek argues that human rights are depoliticising, insofar as they defend against ‘excesses of power’. But Bowring restates that we ought to understand human rights as substantive political projects:
For surely ‘human rights’ were integral to the ‘events’ whose honour Badiou defends. One of the most revolutionary products of the French Revolution, recognised as such with horror by Burke and Bentham among others, was the Declaration of Rights of Man and Citizen. Lenin in 1917 not only proclaimed the ‘rights of nations to self-determination’, which became the battle-cry of anti-colonial struggles, but also the rights of working people which have since become enshrined as social and economic rights.
The human rights corpus then, is the fidelity of the events of the great revolutions. They are the real product of world historical revolutionary movements, their lasting consequence. However, Bowring argues that as these rights become distant from the events which gave birth to them they become mired in procedural and technical formalism. They only regain their power when they are reappropriated in ‘scandalous’ struggle. Thus, for Bowring, defending human rights – all of them – is a way of defending the honour of the great revolutions, and human rights serve as material weapons in the struggle of the oppressed.
This theoretical framework helps to make sense of the more concrete practical chapters in the book. Chapter 1 of the book deals with self-determination and also outlines some of Bowring’s objections to Pashukanis and Miéville. In respect of Pashukanis Bowring argues (in line with Bob Fine – in an excellent book, which I have always thought missed the point with regards to Pashukanis) that Pashukanis’ conceptualisation of the legal form is wrong. Firstly, Bowring argues that Pashukanis’ account is insufficiently historical, and that his linking of the legal form and the commodity form erases pre-capitalist law. Secondly, he argues that in linking the legal form to relations of commodity exchange rather commodity production Pashukanis’ account of the legal form is unduly static and political. These two facts lead onto the third criticism, that Pashukanis had a techicist account of the law, which misses the importance of politics and leads him to think of socialism as the mechanical abolition of the commodity form.
This leads onto his discussion of Miéville. Miéville argues that the right to self-determination in international law is merely a ‘normal’ tendency in international law – since self-determination creates sovereign states (which are rooted in the commodity form). Against this Bowring puts forwards the importance of politics, and the struggles of the Third World and their Soviet allies. Much of his analysis concentrates on the complex role of the Soviet Union, which is something that perplexes a lot of people. Bowring basically argues that the Soviet Union’s practice is this regard was complex and contradictory, but they were ultimately compelled to aid the National Liberation Movements, who were able to use the right to self-determination to legitimate their reactions.
This Chapter leads on to his discussion of the contemporary ‘degradation’ of international law. Here Bowring advocates the approach of ‘revolutionary conservatism’, although this is confusing at first, we can now see why he advocates it. Bowring argues that ‘classical’ international law, with its focus on non-interference and a narrowly construed right of self-defence has to be defended because it was forged in the revolutionary struggles of the Russian Revolution and the anti-colonial movements:
[T]he UN system, itself the result of the compromise between the First and Second Worlds, the capitalist and communist systems, acquired its most important concepts and juridical content through the process of decolonisation. It is no accident that the principles of state sovereignty and non-interference, brought to life by the hard-won legal right of peoples to self-determination, became the main source of legitimacy for the United Nations as a focus for the aspirations of new states and aspiring peoples.
Bowring’s argument is that following the end of the Cold War international law has begun to undergo a process of degradation. Bowring argues that international law was seduced by the promise of power politics (and becoming effective) before being rejected by those in power when it could no longer serve their interests. This (obviously) leads on to his discussion of the legality of the invasion and occupation of Iraq, which he criticises as illegal from the perspective of classical international law.
To my mind, the most important chapter on practice is Chapter 4, which describes human rights practice in Russia. Bowring argues that the European Court of Human Rights has proved effective at exposing the truth of Russia’s war on Chechnya, as he says in Chapter 9:
Instead, what is most important for them and their communities is that the truth has, albeit several years later, at last been told, authoritatively and at the highest level, as to the tragedies which befell them and their families, and the responsibility of the state. This is not simply a question of competing narratives. Instead, on my arguments in this book, such applications are the means by which the rights declared in the darkest hour of French Revolution are re-invested with revolutionary content. It is not that the Chechens’ struggle is legitimised by virtue of the rhetoric or the [204] meagre individual remedies on offer in Strasbourg. On the contrary, the daring use made by the Chechen applicants is the means by which the dead rhetoric of government pronouncements or of worthy NGOs is transformed – transmuted – into words and ideas which have material force. It is possible to say that as a result of winning these cases, the relation of forces in Russia as a whole has been realigned, towards the survivors.
I think that this reconstruction gives a good account of the main thrust of Bowring’s argument. The book is really very good, and is certainly worth buying for anyone who is interested in international law. However, I do have some problems with the substance of Bowring’s argument that I think it is worth pointing out.
Criticisms
It should be noted right from the outset that I agree with Bowring’s key thesis. The content of international human rights law clearly is linked to the struggle between the oppressed and the oppressors in the national and international fields. Bowring’s brilliant point is the accurately locate the three generations of rights within the three great revolutions, and his use of Badiou is excellent. I would perhaps have liked more on the way in which human rights represent the ‘fidelity’ to the Events of the great revolutions, as this seems to me a particular fertile ground for theoretical excavation.
But the question is, how can I, as an avowed Pashukanite, approve of Bowring’s account, since I am apparently supposed to have such a skewed account of the content of the law? My answer is that Bowring’s treatment of Pashukanis is, well, wrong (although his vision of Pashukanis is not a crazy one, and is shared by a lot of people). What is particularly odd in this respect is that Bowring owes a clear debt to the work of Chris Arthur. But Arthur was – and to all accounts is – an enthusiastic advocate of Pashukanis’ work. I would have liked to have seen Bowring comment upon this aspect.
My observations here are very similar to the paper I delivered at the 2007 Historical Materialism Conference, indeed they are part of a larger project I have in mind. So, what am I arguing? Firstly, I do not think that Pashukanis thought the content of law was mere ‘rhetoric’, indeed I would argue that Pashukanis thought that law mediates productive relations. In other words, he sees the content of the legal form as determined by politics:
By no means; we have merely said that the social relation which is called capital began to colour or gave its form to another social relation. Thus we may consider all that occurred purely objectively, as a material process, entirely eliminating the psychology or ideology of its participants. Cannot this be done in exactly the same way with law? Being itself a social relationship, it is capable to a greater or a lesser extent, of colouring or giving its form to other social relationships.
The point is that although Pashukanis thinks law mediates social relationships, he thinks of law of being a specific form. Pashukanis argues that the legal form is posited by commodity exchange. But the legal form is a specific of definite form, which articulates other social relationships. In other words, Pashukanis’ approach is exactly the same as the approach that Bowring purports to be influenced by.
This can further be seen as Pashukanis’ text Lenin and Problems of Law. This is the main text in which Pashukanis attempts to outline a specifically Marxist approach to legal strategy. For this reason I have always found it rather odd that it is never mentioned in the contemporary debates. Although in places the work is slender, it has particular relevance. Pashukanis argues that:
Lenin's incomparable dialectic nowhere appears with such force, perhaps, as in problems of law. It is particularly striking, since one is compelled to compare it with the wretched formalism and fruitless scholasticism which usually flourishes here. We have in mind not only the theoretical analysis of the legal superstructure, in which Lenin appears as a true follower of Marx, but also Vladimir Ilich's practical position in this area. Here we also encounter striking examples of the purely Leninist dialectic. It is sufficient to observe 'in several specific cases the role that Lenin attributed to the legal form. He always did this by taking full account of the concrete historical situation, the relationship between the forces of the struggling classes etc. to realize that both the fetishism of the legal form and its complete opposite the failure to grasp the real significance that one or another legal form may have at a given stage were equally foreign to Vladimir Ilich. The struggle to overthrow and unmask the legalistic fetish of the system, against which the revolutionary struggle is conducted, is a quality of every revolutionary. This is obvious. Without this quality, the revolutionary is not a revolutionary. But, for the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault.
For Pashukanis here what is important is recognising that the legal form is what articulates social relationships. Because this is a definite and specific form, any content that is articulated through it is shaped by this form – ‘[l]egality is not an empty sack that can be filled with a new class content’. Indeed in this piece of work Pashukanis makes specific comment on the right to self-determination:
Lenin understood what his opponents failed to understand: that the "abstract", "negative" demand of formal equal rights was, in a given historical conjuncture, simultaneously a revolutionary and revolutionizing slogan, and also the best method of strengthening the class solidarity of the proletariat and of protecting it from infection by bourgeois‑national egoism. In fact, in the concrete conjuncture in which the argument occurred (i.e. on the eve of the Imperialist War and at its height, and thus on the eve of the Russian 'Revolution), to deny the right to self‑determination by proceeding from the fact that this was just a slogan of formal democracy – and [159] that Marxists are obliged to expose this formal democracy in every way – would have been "to play into the hands not only of the bourgeoisie but of feudal and absolutist national oppression". Lenin understood that at any stage of development, the demand for the abstract formal equality of right is a revolutionary demand which destroys the semi‑feudal monarchy and in the first instance, Russian absolutism.
Pashukanis argues that this right though is ultimately limited precisely because it remains within a legal, and therefore capitalist framework, therefore in a new concrete conjuncture:
This was a new stage, a new situation, a new and higher level of struggle. And new priorities corresponded to it. The bourgeois-democratic stage had passed, and with it the formal legal demand for national self‑determination‑characteristic of this stage‑lost its former significance. The slogan "overthrow the rule of the bourgeoisie on a world scale and set up the international dictatorship of the proletariat" became the immediate practical slogan. Does this mean that national self‑determination lost all significance; that it could be replaced with the "self‑determination of the proletariat"?' Certainly not. This would have been to ignore the presence of backward countries which had not passed through the stage of bourgeois‑democratic national revolutions. The communist proletariat of advanced countries had to support these movements; with all its strength it had to struggle so that the accumulation of centuries of ill will and the distrust by backward people of the dominant nations – and of the proletariat of these nations – was overcome as quickly as possible. It was impossible to achieve this goal without proclaiming and conducting in practice the right of national self-determination. Moreover, even for a socialist society moving [162] towards the elimination of classes the question of national self-determination still remains a real one, since although based on economics, socialism by no means consists solely of economics.
So Pashukanis takes self-determination seriously. The matter of self-determination is an interesting one, and I have a very specific take on it (I’m writing my dissertation on it) but I don’t think we can argue that Pashukanis ignored it entirely. In fact, what Pashukanis does is to understand that self-determination is achieved through the struggle; the content of law is not merely ‘rhetoric’. But what he understands is that rights-talk – as the discourse of a specific form of social regulation – is ultimately limited.
This, I think, is Bowring’s weakness. Although he focuses well on the content of human rights law he never inquires as to the limits of its form. Although he pays lip-service to the importance of structure, and makes reference to the value-form tradition of Marxism he doesn’t follow through the implications. Thus, my position remains intermediate between Miéville and Bowring. The content of international law is determined in thoroughgoing material struggle, but this struggle is articulated within a form of definite material limits. I am currently working on a review of Miéville which tries to develop this position further, so I may post that at some point.
Despite these limitations Bowring’s book does represent an excellent contribution to the growing debate on Marxist theories of international law. Whilst it is theoretically complex it is written in a clear, concise style. The illustrations from practice are useful (and Bowring has firsthand experience) and lend the book a good deal of concrecity. So yeah, buy it.
