Friday, August 29, 2008
Of course this is probably going to go nowhere, but could perhaps be an example of some of the interesting stuff blogs can produce.
Thursday, August 28, 2008
The law has a regulative character and is a "rule" not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: "If (a real case in point…), then (juridical consequence…)," in which a fact is included in the juridical order through its exclusion, and transgression seems to precede and determine the lawful case. That the law initially has the form of a lex talionis …means that the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not a punishment of this first act, but rather represents its inclusion in the juridical order, violence as a primordial juridical fact…In this sense, the exception is the originary form of law.Pashukanis:
The cipher of this capture of life in law is not sanction (which is not at all an exclusive characteristic of the juridical rule) but guilt (not in the technical sense that this concept has in penal law but in the originary sense that indicates a being-in-debt: in culpa esse), which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which one is excluded or which one cannot fully assume. Guilt refers not to transgression, that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law's simple reference to something.
Russkaya Pravda‑that most ancient historical monument of the Kievan period of our history‑consists of 43 articles (the so‑called academic register). Only two articles do not relate to violations of criminal or civil law. The remaining articles either determine a sanction, or else contain the procedural rules applicable when a law has been violated. Accordingly, deviation from a norm always constitutes their premise. The same picture is presented by the so‑called barbarian laws of German tribes. For example, in the Salic Law only 65 of 408 articles do not have a punitive nature. The oldest monument of Roman law‑the laws of the Twelve Tables‑begins with rules defining the procedure for initiating litigation: "Si in ius vocat, ni it, antestamino. Igitur im capito". (If a man is called to court and he does not go, this should be attested, and he should be taken there) …Which links nicely back to the introduction to this blog I wrote over three years ago(!):
Non‑observance of a norm, or violation of it, the disruption of normal intercourse and ensuing conflict: this is the starting point of the most important content of ancient legislation. Conversely, what is normal is not fixed in the beginning as such‑it merely exists. The requirement that the scope and content of mutual rights and obligations be fixed and exactly established, appears when calm and peaceful existence is violated. From this perspective Bentham is right when he asserts that a statute creates rights as it creates crimes. Historically, the legal relationship assumes its specific character pre‑eminently in the facts of violations of law. The concept of theft was defined earlier than the concept of private property. The relationships attending a loan were fixed when the borrower did not want to repay it: "if one tries to recover a debt and the debtor refuses etc." (Russkaya Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion to hostility, "peaceful" (Vertrag) supposes the end of "unpeaceful" (Unvertraglichkeit).
[I]n a real sense law only exists with disorder, the normal conduct is only rendered "normal" by the deviation itself. Historically, then, law can only be seen as arising as a material solution to “disorder”, and to act as a corrective. But the continued existence of a law can surely only mean one thing, disorder still exists. Therefore the corollary of the law is not “order” because once one has “order” there is no need for law, law is dialectically generated by the continued presence of disorder. Therefore the fact that law does not extinguish itself also raises many questions as to its efficacy as a method of social regulation.What does all this tell us? Firstly, one wonders why the sole reference I can find in anything Agamben writes to Pashukanis is in State of Exception, where he simply notes the opposition between Vyshinsky and Pashukanis on the question of the withering away on the law. If anyone else can find a reference I would be gratified to see it. Secondly, what I quite like about Agamben is that he actually deals with ‘law’ as a named relation. A lot of people seem to deal with Schmitt as primarily a political theorist. Having read the Schmitt I’ve read I always find this a bit hard to swallow, whilst Schmitt is obviously speaking to politics broadly conceived, there are vast swathes (one might say these swathes constitute the majority of his work) in which he is thinking juridically. This is particularly evident (to me) in – say – Political Theology; I read a lot of people who take Schmitt speaking very narrowly of states of exception. Yet, it seems to me that alongside this Schmitt’s decisionism extended into legal decision-making as such. This depiction of indeterminacy (which McCormick is very good on) is powerful precisely because it totally problematises a central plank of liberal-capitalist ideology the ‘rule of law’ (and not men). The mature Schmitt is even better on this, but it seems few people have read On the Three Types of Juristic Thought – perhaps because it is a much more juridical work.
I think it’s quite interesting to compare the way in which Pashukanis and Agamben approach this. Agamben’s approach seems to be primarily philosophical/theoretical, with some nods towards historical analysis. Pashukanis approaches the question both logically and historically, grounding his logical analysis in historical presentation (although one can hardly call his brief historical considerations an in-depth analysis). What I also find interesting about Pashukanis’ work (and this describes his work more generally) is the way in which he depicts the unfolding of theoretical argument through a historical process.
I’m also tempted to say that Agamben’s lack of an explicit theorisation of the legal form hinders him somewhat (although again I have in no way read his entire oeuvre and so am probably wrong). So Pashukanis doesn’t just argue that law needs disorder etc.; he outlines a specific historical process through which deviations eventually constitute the norm, which eventually gains its legal character. Whereas, with Agamben it’s just kind of there. This of course raises a whole host of other problems – chief among them that inclusive exceptions might be said to operate amongst a whole host of regulative social relations (something which Agamben is happy to acknowledge). However, I think I’ll leave my mediations for now, and return to this at a later point, as all I really want to do is quote Pashukanis at people, this would not be wise, but I would again recommend people read him. I think I’ll also write something a wee bit more coherent at a later time.
Wednesday, August 27, 2008
Of late I have been – rather slowly it has to be said – making my way through Giorgio Agamben’s Homo Sacer. Whilst I’m sure this is hardly interesting news to most people (as likely you won’t care or have already read it), I thought I might as well occasionally blog my thoughts on the book. I found the following argument rather interesting:
One of the most persistent features of Foucault’s work is its decisive abandonment of the traditional approach to the problem of power, which is based on juridico-institutional models (the definition of sovereignty, the theory of the State), in favour of an unprejudiced analysis of the concrete ways in which power penetrates subjects’ very bodies and forms of life ... Foucault seemed to orient this analysis according to two distinct directives for research: on the one hand, the study of political techniques (such as the science of the police) with which the State assumes and integrates the care of natural life of individuals into its very center; and on the other hand, the examination of technologies of the self by which processes of subjectivization bring the individual to bind himself to his own identity and consciousness and, at the same time, to an external power ... Clearly these two lines ... intersect in many points and refer back to a common center ... Yet the point at which these two faces of power converge remains strangely unclear in Foucault’s work ... If Foucault contests the traditional approach to the problem of power, which is exclusively based on juridical models ... or on institutional models ... and if he calls for a “liberation from the theoretical privilege of sovereignty” in order to construct an analytic of power that would not take law as its model and code then where, in the body of power, is the zone of indistinction (or, at least, the point of intersection) at which techniques of totalizing procedures converge? ... [W]hat is the point at which the voluntary servitude of individuals comes into contact with objective power? ... Confronted with phenomena such as the power of the society of the spectacle that is everywhere transforming the political realm today, is it legitimate or even possible to hold subjective technologies and political techniques apart?
As I say, I find this position to be quite interesting, and on some levels it reflects how I have felt when I engaged with Foucault’s work (I should add that this has been a very limited engagement, a situation I hope to remedy sometime). For me, what is particularly interesting is the notion that ‘the traditional approach to the problem of power’ was based ‘exclusively on juridical ... or ... institutional models’ and took ‘law as its mode and code’. Of course, I should firstly note that Agamben may not accurately represent Foucault’s views, I am inclined to think that he gets to the gist of what Foucault (sometimes) says quite well, but am ready to be corrected otherwise.
With this in mind there are a few ways in which this interests me. Firstly, one ought to point out the slippery notion of the idea of the notion of a ‘traditional’ mode of analysis. Designating something as traditional is a rhetoric flourish which tends to mark one out as ‘radical’ and reduces complex theoretical positions to some single ‘idea’. I say this because orthodox/mainstream accounts of power clearly have recognised the importance of informal/non-state power. Sure, there is a tradition (that one might designate ‘libertarian’) whose sole purpose seems to ideologically obfuscate the fact that non-state actors can wield tremendous amounts of power, but I don’t think we can just call these people ‘traditional’ and be done with it.
This is more important when we take into account critical theorists. Whilst obviously not ‘mainstream’ such positions were nonetheless often accused by Foucault of being too fixated on state power (particularly Marxists). This always struck me as incredibly counter-intuitive, seeing as how for traditional Marxists political power was subordinate too or at least produced (dialectically) by economic power. But this isn’t what really interests me, instead we need to examine the vision of ‘law’ that is put forward in this type of analysis. Here law is seen as inextricably linked to the state – as a kind of directive vertically addressed from the state to the citizen – hence its linkage with ‘objective power’. This view – that of law as sovereign command – does have a certain lineage, one can find it in some of the older legal positivists, but by and large it has been rejected by orthodox legal theory. Thus, there is the classical argument by Hart, that this sort of position has real difficulty in explaining whole swathes of civil law – contracts, marriages etc. – whereby the law isn’t a projection of state power so much as a mode by which individuals are able to form relationships. Here the state may craft the outlines of some rules (although this again is by no means certain) and judges will step in, but only in the last instance. The same can be said of human rights. Here what we have rights that individuals have which can be asserted against individuals or against the state. Whilst one might attempt to characterise human rights as the state commanding itself/others to behave in a certain way, this seems to miss the point. Human rights are characterised by their active assertion by the rights-holders or those representing them. Finally, of course, there is the matter of international law (my own personal obsession) here of course there is no body with the monopoly on legitimate violence that characterises the ‘traditional’ vision of the state.
This is the typical argument of a ‘Pashukanite’. Law can’t just be conceived as the ‘norm’ directed from state power, as this fails to encompass many of the relationships we currently consider to be legal. Furthermore, the state addresses its subjects through numerous commands and directives which we might not characterise as law. The next step of course is to argue that ‘law’ cannot be considered from content, function etc., as other things have similar contents, functions etc. – we have to move to seeing law as a social relationship or a social form. Pashukanis sees the legal form as one in which individuals are posited as formally equal, abstract units and regulated as such.
This gives us two immediate considerations to think about. Firstly, as Pashukanis notes, the growth of law can be characterised as ‘the disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects’. If we wanted to put this in good old Foucauldian terms, we might say that for Pashukanis the process of ‘juridicalisation’ goes on concomitantly with – and perhaps even drives – the process of individuation. This, of course, somewhat problematises the law/discipline (etc.) distinction, precisely because Pashukanis sees that individuation (and ultimately the production of selves) is at least partly a legal process. Richard Kinsey, in what I consider to be one the best works in Marxist legal theory, put it this way (emphasis mine):
What is important here however is not so much the invisibility of the legal relation but its possibility. That is, the possibility of the concretisation in legal relations of all social relations of commodity production and exchange, a possibility which is essential and specific to the commodity structure of the capitalist mode of production. It is this potential for the extension of legal relations to include and define all social relations which marks the full and mature development of law in the bourgeois epoch and displays the inherently bourgeois character of law as a lived relations, as a definition of subjectivity.
Linked to this of course is the reach of legal power. Foucault is often said to have contrasted micro-power and macro-power, with law largely confined to the latter category. But I would argue against this. Firstly, in the sense – as above – that the legal form is an important driving force in the constitution of individual subjectivity, but secondly because once you correctly understand law as a form of social regulation then we can see how law is constantly involved in the micro-politics of everyday life. So – and this is the usual law school spiel – there is the obvious contractual stuff – with the obvious example of sale and the crucial example of the alienation of labour-power. But there is also anti-discrimination legislation, health and safety laws, working time regulations etc. There is a plethora of labour law and human rights law that is clearly a part of the texture of micro-politics.
And this bring me nicely onto another point about law. Whilst I have stressed that the law simply cannot be thought of as ‘state power’ it would be rather silly to just remove state power from the equation. Instead law should be understood as a relationship that requires force for its actualisation (although what type of ‘force’ is a point we need to specify) and one through which the bourgeois state typically articulates its demands. This dialectical understanding – law as a relationship of formal equality through which objective violence is articulated in nicely captured by Pashukanis (in one of my favourite quotes of his):
Before us is some sort of strange dual concept; although both aspects are located at different levels, they nevertheless undoubtedly condition each other. Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society". On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.
Here Pashukanis seems to be agreeing with Agamben – law cannot be understood as operating on the subjective/objective divide of power. Instead law encompasses – dialectically – both of these processes constituting subjectivities autonomous of the state, whilst also bringing in the objective violence of the state. Recognition of this fact also leads to some particularly interesting examples. Thus, the human rights movement and the labour rights movement have both done good things. They have used the law to try and alleviate the suffering of people. Yet – through using the legal form – they have vastly expanded the acceptable range of state power (this could also be linked with Schmitt’s observation that the welfare state has politicised everything and so vastly expanded the range of the political) and legitimated the idea that power is able to intervene in any sphere of social life and must necessarily monitor it for any violations. This is all brilliantly summed up in Rajagopal’s book International Law From Below. This book is perhaps the most theoretically astute of all of the TWAIL works, brilliantly deploying a number of critical theoretical concepts to interrogate the history of the international human rights movement (although it does suffer slightly from the malaise I outlined earlier this month as regards ‘deep’, ‘explanatory’ theory). In respect of the human rights movement Rajagopal notes a certain schizophrenia towards state power:
While these debates [on the possibility of economic and social rights] are important, they suffer from a common schizophrenia and ambivalence: a deep suspicion of sovereignty and state on the one hand (conflating them in that process), and a total reliance on the moral possibilities of the state on the other. That is, while the human-rights discourse celebrates the retreat of the state, the realization of human rights is predicated on the expansion of the state.
Fredric Megret (in a review) puts it rather more starkly in relation to international criminal law:
None of the authors reviewed pays much attention to or seems much perturbed by the paradox that the apex of the human rights movement comes in the form of a tribunal that is not a human rights tribunal properly so-called; nor has there been much notice of the historical irony that the international human rights movement, which started among other things as a challenge of the state’s penal excesses, should end up legitimizing a huge system of criminal repression.
One can only really understand this process through the characterisation of law roughly outlined above – through moving away from the vulgar-positivist concept of law (and I do mean the vulgar view, as opposed to the more sophisticated positivism of today) and towards the conception of law outlined above. I often wonder why it is that Foucault and those he influenced (I think Poulantzas suffers from a similar problem) fail to do this. Sometimes I think it may be down to the fact that they operated in continental legal systems, which are usually portrayed as simple lists of rules emanating from the state.
I think I’ve rambled on long enough (though wonderfully this has made me read a few things for information that I hadn’t touched in a few months and they’re fairly awesome), later on in the week I have a few more Agamben ideas that I want to work through.
 1998, Stanford University Press
 Ibid., p.6
 “Preface to the Second Russian Edition” in Law and Marxism: A General Theory, (1978) Inklinks
 Richard Kinsey, “Marxism and Law: Preliminary Analyses” (1978) 5 British Journal of Law and Society 202, at p.218
 Concept of the Political, (1996) Chicago University Press, p.22
 2005, Cambridge University Press
Thursday, August 14, 2008
It’s hard to know what to say about the Georgia furore that hasn’t been said before. Lots of people on the left have said lots of things about it, and it seems to have inspired a good deal of ire and passion. One thing missing from a lot of the left commentary (if not from the commentary more generally) is analysis of the legal aspects raised by Russia’s intervention, what follows are my fairly scattershot thoughts on the whole debacle, as well as some (not so cutting) comments on the legal aspects of all this.
The first point to note is that even outside of the immediate context something like this has been brewing for months. We all knew that Russia was getting antsy about NATO encroachment on its backyard. Following Kosovo’s unilateral secession from Serbia, it was all but a certainty that South Ossetia or Abkhazia or any of the other problem areas in the Caucasus was going to become a flashpoint (I said as much in my LL.M. dissertation on self-determination). What was perhaps less predictable was the way that this all started. Whilst I knew that Georgia was being provoked by Russia, I still have trouble believing that Saakashvili thought he could get away with going into South Ossetia.
This brings me nicely onto my second point. A major point of dispute on the left has been the question of whether or not sections of the left are reverting to type and passively (or otherwise) supporting Russia. I think part of this can be ascribed to the realist temptation that has struck many a person in this instance (myself included). What this temptation leads us to do is shake our heads in incredulity and say what was Saakashvili thinking!? Is he stupid!? Whilst this realist position seems to be a fairly accurate one to me I think it also has to be coupled with a sense of sympathy for the Georgian people. Although Marxists are right to problematise the left-liberal distinction between people and government/people and state etc., we do need to understand that it is certainly often the case that the actions of the government/state are not attributable to the people. Once this is coupled with a typical left-internationalism we can see that the realist reaction can’t possibly capture everything relevant about the situation.
Another reason that some are condemned as Russian apologists is for their particular take on the media. I think this is definitely unfair. A lot of stories doing the rounds at the moment seem determined to emphasise Russia’s territorial ambitions, the new Cold War etc., whilst I agree that there is a definite case of imperial expansion going on here, all of these articles do seem to omit the fact that Russia didn’t ‘start this’. Georgia made a very bad tactical move, which Russia has taken advantage of, but I don’t think Georgia’s role in all this can simply be ignored.
This dovetails nicely with my third point, when we are talking about Georgia’s actions it is necessary that we place them in the context of American (and to some degree European) expansion in the Caucasus region. I don’t think I need to go through this excessively (but see here for a pro-Russia, but cogent argument on the issue) but the US – and more particularly NATO – has been expanding its security interests in the region, investing in its militaries, supporting the ‘colour revolutions’ etc. Indeed it seems likely that Georgia thought its future NATO membership/close relationship with the West would be enough to stop Russia from retaliating to the incursion into South Ossetia. In this respect, what we are seeing – to some degree – is what Marxist used to refer as inter-imperialist rivalry (at the very least there is a clashing of imperial interests going on in the ‘background’). I think the left is right to flag up the fact that we are not just dealing with ‘plucky little Georgia’ here, as Georgia is in fact deeply implicated with imperial interests. However, perhaps the problem here is that the left has a habit of thinking ‘the chief enemy is American imperialism’, I think John puts it quite well:
My own belief is that we are witnessing the return of multi-polar great power politics. Obviously the funniest thing about all this is George Bush complaining about ‘disproportionate’ responses. How we laughed in the Kremlin. But I would also argue that perfectly understandable vicarious pleasure in the scuppering of US hegmonic ambition may lead to a hangover. We need to differentiate this from the kind of imperial policing operations of the last ten years or so. Welcome back to multi-polar great power rivalry. After a brief champagne breakfast to celebrate the end of unilateralism we need to get back to confronting new realities.
What John notes is that what we are seeing is (to some degree) an inter-imperialist conflict, something which we haven’t seen in a good while (personally I’ve always been sceptical about claims of Empire, American hegemony etc. but that’s another story). Obviously, we’ve been so used to opposing American imperialism that – again – there is almost a realist temptation to shout ‘go Russia!’, but this we cannot do. Indeed, this is the opposite of what we must do because if what we are seeing is the rebirth of inter-imperialist rivalry then what we must also see is the rebirth of the strategy to deal with this – no support for either imperialist power. Thus, while (as John notes) it is understandable that people would celebrate the scuppering of US hegemonic aims, the celebration is rendered inappropriate by the context.
It doesn’t follow from this that we let the US off scot-free. This is another area in which accusations of sympathy for Russia abounds. It is quite right for US to mock the US’ invocation of ‘territorial integrity’, ‘sovereignty’ and its condemnation of ‘disproportionate attacks’. Phil opines:
Apparently more than one state does bad things in pursuit of its interests, and their denunciations of one another are sometimes hypocritical. Who’d have thought it?
Whilst on one level I can appreciate Phil’s sentiment I don’t think such cynicism is the right response. Fine, states are almost completely hypocritical but to adopt a cynical pose in the face of this surely means that we are conceding defeat. The correct response cannot simply be to say ‘states are hypocritical’ and abdicate pointing this out – instead surely we should adopt some form of immanent critique (I’m sure there’s a clever Zizek reference in here too about the ideological function of cynicism, but for the life of me I can’t think how to make it).
The consideration of the US’ invocation of certain fundamental norms of the international legal order also offers a nice way into a bit of a discussion on the legal aspects of all this. I begin with another quote from Phil (whose comments I always find insightful, even if I do often disagree with/criticise them, he ought not to be offended):
As for lines on the map, I think saying they shouldn’t be crossed is actually a pretty good starting point. You can criticise the invasions of Iraq and Afghanistan on those grounds, *and* the bombing of Serbia. Otherwise you end up either defending one country’s violations of international law & condemning another’s (which gets confusing) or retreating to the sidelines with the SPGB (Latest - Workers Of The World Still Screwed).
Of course, to this problem we can immediately counterpose Splinty’s very Leninist question ‘whose lines and whose maps’ (indeed I was thinking of the very line last night and awoke to find he’d already used it!). This really is a very important consideration – from both a political and legal point of view. Politically, it doesn’t seem fair to start with this position. Historically, there have been some Empires (the Russian one being a good example as it happens) who don’t leave their colonies as dependent territories, instead they incorporate them (through lines on a map) into the imperial metropole. Obviously, the left simply could not accept this state of affairs, as it would leave us making a very arbitrary distinction between which wars of national liberation to support.
A very similar situation arises in relation to self-determination in international law. Classically, self-determination only applied to ‘blue water’ colonialism. The units of self-determination were the colonies abroad, which were quite clearly different ‘nations’ from the home state. Further to this the principle of uti possidetis juris meant that the applicable boundaries of these new states would be the ones drawn up by the imperial powers themselves. This immediately ran into problems, as both Portugal and France defined the colonies as parts of their respective nations, this was quickly dealt with through a General Assembly resolution. However, this still did raise the problem of whether an ethnic/national minority population within a state was entitled to a right of self-determination and what such a right might entail. The Supreme Court of Canada in its Reference Re the Secession of Quebec attempted to mediate this by arguing that such groups might constitute a ‘people’ for the sake of self-determination but that normally they would only be entitled to a right of internal self-determination – autonomy, language rights etc. However, were this right consistently denied and if the ‘people’ were subject to egregious rights abuses a ‘remedial’ right of secession might arise.
This is important because it is clear that on one level Russia is positioning this as a case of self-determination (for doubts about its applicability see here). This also explains the Russia emphasis on ‘genocide’ and the general mistreatment of the Ossetian population. This point can be linked back to what I originally noted about Kosovo. It really does seem that Russia is trying to position this intervention into the same basic framework as the Kosovo intervention – a self-determination claim buttressed with a line on humanitarian intervention. This also raises interesting questions about the use of force in support of self-determination. Historically, this was an issue that was vigorously pursued by the Third World in international law’s anti-colonial period. Today, this right seems to have become a weapon in the imperialists’ armoury as part of the general panoply of ‘democratic’ and ‘humanitarian’ intervention.
Russia’s particular legal justification also fall quite squarely within the imperial legal tradition. Aside from the particular question of self-determination Russia seems to have advanced three legal justifications for its action. Firstly, there is the argument that the civilians who have been attacked in South Ossetia are Russian nationals – since they had been issued Russian passports en masse. The defence of nationals abroad has been a staple for imperial intervention. Similarly, Russia can make another (and arguably stronger) claim for self-defence on the grounds that its military has been attacked. Russia has also paid close attention to the peace treaty agreement that it has with Georgia. Typically, these assertions will be countered with the argument that even if Russia was the victim of an armed attacked, it nonetheless used disproportionate means to redress this. But again, this argument is hard to maintain. Following 9/11 imperial states have often used the argument that their uses of force are not disproportionate because they face a continuing threat of further attacks. Indeed on the face of it, such a claim would be stronger here, in the case of Afghanistan the real sticking point was the difficulty in attributing the actions of al-Qaeda to the Taliban. Here there is no such problem, as the Georgian military, at the behest of the Georgian state made the incursion.
What is very important here is that Russia is using international legal argument in a way that fits quite comfortably with its previous invocations by great powers. This is what makes Bush’s argument particularly weak, and strengthens the idea that what we are seeing is a revival of imperialist rivalry. But what this also does is to weaken the claims of someone like Phil – who thinks we ought to condemn these actions as violations of international law. Russia has certainly justified its actions as conforming to exceptions to the principle of territorial integrity and in line with recent practice in the area. In order for Phil’s strategy to work it is necessary to make a distinction between actual legal argument and argument that merely appears to be legal. It must then be held that whilst Russia (and by extension) the US are using legal language, what they are actually doing is perverting the law. This approach would allow us to critique such actions on the basis of legality, however, it would lead to two problems. Firstly, it seems somewhat wrongheaded (particularly in the case of international law) to say that that the content of the law is somehow independent of what its participants say it is. Where do we look for in ascertaining the content of this law? How do we adopt such a position without becoming idealists? Secondly, it does seem to rob the law of any material power. In arguing that imperial assertions of law are actually law we are taking the law seriously, showing how it is an important, constitutive part of political discourse. If we say they aren’t, what role does that leave for law? As a moral arbiter that is impotently raised by those who vainly seek to restrain the great powers? Also, if states regularly engage in the cynical invocation of legal language they hardly evince great regard for legality. If this is the case then what is the point of invoking the law?
And somehow I have managed to go on and on and on again – curses!
 China Miéville addresses these issues very well in Between Equal Rights
Wednesday, August 13, 2008
A few weeks ago I finished reading Gerry Simpson’s Great Powers and Outlaw States. This is a book that has gotten a lot of praise from a lot of people but I still think there are a lot of interesting things left to say about it. I also think this book flags up some broader issues with critical international legal theory, which I also want to deal with. Simpson’s book represents a critique of orthodox approaches to sovereignty and sovereign equality; essentially he aims to show ‘how sovereignty undergoes ceaseless modification and re-negotiation in the face of material forces in world politics (e.g. war), institution building, inter-disciplinary struggle and theoretical contestation’.
Simpson begins the book proper with an analysis of the concepts he will be deploying throughout. He starts with an examination of the mainstream doctrine of sovereign equality. Simpson argues that the centrality of equality to the international system is down to the linked processes of secularisation and decentralisation – processes which culminated at
But before engaging tin this claim Simpson first seeks to refine what precisely is meant by sovereign equality. Simpson argues (correctly in many cases) that international lawyers fail to spell out exactly what they mean when they talk about ‘sovereign equality’. Typically (some) liberals have tried to analogise the sovereign states with the sovereign individual but this fails because there is no accepted domestic theory of liberal equality. Simpson supposes that we can only make two concrete suppositions about sovereign equality firstly that only states possess it (and by consequence it is an attribute of statehood) and secondly it operates only juridically (that is to say legally). But this still leaves us with the question as to what type of legal concept it is.
In order to inquire into this question Simpson first asks us to imagine sovereignty without equality. He argues that we can view sovereignty as simply a territorial ideal but not an organising principle. Here states would be communities organised into territorial units who could do whatever they want everywhere else. Simpson sees this as an unequal order of sovereignty (I’m not quite so sure about this myself, one could easily argue that juridically everyone here is equally free (or perhaps equally unbound by the law) any inequality produced would be factual), which has been historically called ‘absolute sovereignty’. This allows us to see what equality might add; a doctrine which emphasises liberty, security and coexistence – a form of sovereignty that is tempered by the sovereignty of others. From this Simpson argues that our conception of sovereign equality can be broken down into three elements – formal equality, legislative equality and existential equality.
Formal equality is where states are treated as equals before the judicial system, viz. equality before the law. This doesn’t say anything about the scope of rights, just that any rights states do enjoy must be ‘enjoyable’ in a judicial setting. Legislative equality has two meanings: firstly, it describes the idea that states should only be bound by those norms to which they consent and secondly it argues that in international law making no state should (in juridical terms) have more influence than another. Finally, there is existential equality which essentially is sovereignty as independence. Essentially, this type of equality argues that all states are equally entitled to choose their internal political, social and economic arrangements.
Counterposed to this equality is the central idea of Simpson’s book, that of legalised hierarchies. Hedley Bull characterised international society anarchical because it lacks a central sovereign, on this reading states exist in anarchy because of their sovereign equality. This problem also preoccupied it legal positivists who had become used to identifying law with identifiable, certain rules backed by centralised violence. Eventually, positivists simply dropped the requirement of a central authority and located violence in the form of self-help. When Simpson talks of legislative hierarchies he is not speaking of centralised law-making bodies, instead what he is talking about is status differentiation of states that doesn’t extend quite so far, as Simpson notes:
One might usefully compare two different legal systems here. The first is a system of non-anarchic hierarchy found in a centralised legal order (e.g. the
’s legal system) the second is legalised hierarchy (e.g. the international legal order). These legal orders, in turn, can be contrasted with a political order in which hierarchy and anarchy cohabit the system but in which hierarchy has no legal significance (e.g. the state of nature...). United Kingdom
According to Simpson there are two forms of legalised hierarchies that operate in international law these as legalised hegemony and anti-pluralism. Simpson describes legalised hegemony as:
[T]he existence within an international society of a powerful elite of states whose superior status is recognised by minor powers as a political fact giving rise to the existence of certain constitutional privileges, rights and duties and whose relations with each other are defined by adherence to a principle of sovereign equality.
Thus, legalised hegemony refers to the fact that certain Great Powers are granted legal pre-eminence in international law. This – of course – tends to militate against legislative equality as described above. The above description discloses the four elements of legalised hegemony, these are a legal/constitutional basis, sovereign equality among the Great Powers, hegemony (in the classic sense) as imposed from above and consent to from below and the Great Powers acting in concert since they have an interest in the international system as a whole. Simpson argues that this was only able to arise around the time of the Vienna Concert system, as prior to that there had not been a multitude of Great Powers, instead there had usually been one hegemonic power, which exercised this power in its interests. Furthermore, he argues that material power is not enough, there needs to be a sphere of influence which is accepted by other states – this means that (as is often the case) cultural ‘power’ may outstrip military power. Finally, it is worth noticing the amount of importance Simpson places on the Powers acting in concert and having interests in the system as a whole. This means that he argues legalised hegemony did not operate during the Cold War (this is something to which I will return later, as I feel it creates a serious weakness in his work):
Legalised hegemony is distinguishable from superpower dominance in that the former requires a commitment to long-term collective action together with a formal constitutional validation of these collective goals and processes. The superpowers were not ‘Great Powers’ according to this definition. They did not exercise legalised hegemony through concert. They were the greatest powers in the system but they did not act responsibly in order to maintain the system through some sort of concert.
The second type of legalised hierarchy that Simpson claims operates in international law is that of anti-pluralism, particularly liberal anti-pluralism. Simpson begins with a taxonomy of liberalism. Simpson argues that liberalism is structured by two very different strands. On the one hand there is liberal pluralism, or classical/modus vivendi liberalism. This position tends to say (internationally) that liberalism means we ought to tolerate – and indeed celebrate – difference in the internal political arrangements of states. This is of course reflected in the UN Charter and orthodox international law, which tends not to question a state’s political or humanitarian credentials (even if there have been trends against this). Contra this is liberal anti-pluralism or ‘the liberalism of certainty’ which can be ‘exclusive and illiberal in its effects’. This form of liberalism takes liberalisms classic requirements equality, the rule of law etc. and insists that these values be universalised within states. Thus, liberal anti-pluralism tends to emphasise individual rights to democracy, with international human rights law serving as its ‘engine’. The debates about membership in the UN are said to reflect this tension. The way in which this is translated into international law is through the creation of criteria of membership (such as civilisation, democracy etc.) in international organisations and bodies. More specifically (and more on this later) Simpson argues that international law has been marked by the creation of ‘outlaw states’ against whom a differing legal regime is deployed. Obviously this form of legalised hierarchy tends to go against existential equality.
Simpson argues that legalised hegemony, liberal anti-pluralism and sovereign equality have been in a complex interaction ever since 1815. Simpson argues that sovereignty can only be understood as the combination and interaction of these elements in what he calls ‘juridical sovereignty’. He then goes on to see how these different types of legalised hierarchy have interacted historically.
The vast majority of Simpson’s work is then concerned with using this framework to interpret certain key moments in legal history. Simpson begins with an analysis of legalised hegemony. Firstly, he examines the 1815 Congress of Vienna. Here following the defeat of Napoleon a directorate of Great Powers sought to manage
A standard international relations account of hegemony suggests that equality is a fiction and hegemony is the expression of some underlying reality in the international order. In fact, hegemony appears to require the fiction of equality (albeit extended only to the hegemons themselves), in order to sustain it.
International lawyers responded to this system in a number of different ways; fidelity, repudiation and equivocation. Thus, some erected a rigid divide between the legal and political sphere and argued that the Great Powers were only politically superior. This meant that Oppenheim had to characterise hierarchy as purely ritualistic, whereas others argued it was simply a breach of law. Others decided to abandon sovereign equality altogether, arguing that legalised hegemony was the only feasible way of building international organisations. Others tried to equivocate, usually making an argument like consent had rendered what was illegal legal.
Of course throughout this period there were counter-tendencies towards equality. Thus the Second Hague Peace Conference (1907) failed to create a
Again a similar process was repeated in the formation of the UN Charter. Here, some form of legalised hegemony seemed inevitable – and numerous justifications were advanced for it. Indeed the real question was not whether or not to entrench Great Power status but rather who would be classed as a Great Power. Simpson quite cleverly notes that whilst people call the Security Council ‘anachronistic’ today it was anachronistic right from the start.
The Great Powers wanted privilege to follow power but only to a certain extent. They did not wish to have the enjoyment of these privileges subject to the continued possession of commensurate power. A norm of sovereign equality, then, created a level of artificial parity between the Great Powers themselves in the Security Council just as legalised hegemony ordered relations between the core and the peripheral states.
Everyone knows however that equality also remained central to the United Nations Charter. The Great Powers felt it necessary to assuage the concerns of smaller states. These smaller states also attempted to weaken the power of the Security Council by attenuating the veto, modifying the membership, constraining the Council and enhancing the power of the General Assembly. However, it was only really the final strategy that was successful and even this was not particularly so.
The next part of the book addresses anti-pluralism and outlaw states. He begins by examining what is – to scholars of the relationship between colonialism and international law – familiar ground. Prior to 1815
In the 20th century, this standard underwent something of a transformation. Certainly, by the beginning of the period the standard of civilisation was becoming increasingly unstable, many of the peripheries had claimed to reach the standard. Whilst the colonies were dependent territories they were not in fact states; so there was an increasing equality for states even while some ‘people’ or ‘nations’ remained excluded. The two liberalisms clashed at both the Versailles Conference (for the
At the end of the Second World War, the
model was rejected in favour of a regime of individual responsibility. The Nuremberg Trials, then, were important as a method of punishing the major Nazi war criminals but they served another function by deflecting attention away from the criminal conduct of the state of Versailles . So Kellog-Briand and the Covenant were used at Germany to show that the Nazi High Command had committed crimes against peace but their application to Nuremberg as a whole was thereby avoided. Germany
However, according to Simpson, this phase was to last less than half a century. Simpson then skips forward to the 1990s. Firstly, he examines the International Law Commission’s Draft Articles on State Responsibility. Here the idea of a ‘state crime’ was floated. Simpson argues that although this idea was formally rejected it has in fact been actualised in the practice of the Security Council. His particular focus is
The effect of all this is that a thin and fragile system of universal law applicable to all (liberal pluralism) is replaced by two highly developed legal domains. In one domain, the sphere of liberal transgovernmentalism or democratic peace, international law is more pervasive and has more bite than in the classical model. In the other domain, an incipient international criminal law is the mark of what will be a highly regulated sphere of intervention and intrusion. The ‘criminal’ outlaw state’s fate is much more likely to resemble that of the criminal or deviant in the contemporary state (subject to constant monitoring and occasionally arbitrary violence) than the traditional image of the outlaw cut loose from society. In the case of undemocratic states, engagement and exclusion (or a withdrawal of some benefits of the law) will tend to alternate.
Of course this overview (although I admit it is rather a long ‘overview’ has only touched upon the debates. Simpson also considers Kosovo and the Holy Alliance and also has a pretty stimulating chapter on
Although I did like this book I have some real problems with it. I first want to consider my specific problems with the book, before going to consider how I think it exemplifies a certain trend in critical legal theory. So firstly, I want to look at Simpson’s definition of legalised hegemony, particularly his focus on ‘concert’. Thus, as noted above, Simpson emphasises the need for Great Powers to act ‘together’ and ‘in concert’, contrasting this to the system in the Cold War. As an immediate historical concern such a position seems a bit odd to me, Simpson constructs a timeline:
Legalised hegemony formalised (1945) --> Political hegemony (1946-87) --> Legalised hegemony realised (1987-98)
When you combine this with Simpson’s admission that the Vienna Concert system lasted for such a short time it does start to seem like he may have slightly overblown the importance of legalised hegemony. This is because legalised hegemony doesn’t really seem to have operated as Simpson envisaged very much in history at all. This point becomes even more worthy of consideration when it’s placed in the context of Marxist debates about imperialism and Empire. Simpson’s work does seem to align somewhat with the Kautsky-ite super-imperialism/Hardt-Negri Empire line of argument. I’ve always had my doubt about this type of analysis. Take for example the recent period of ‘legalised hegemony realised’, I assume that the starting point for this sort of analysis would always be
What is particularly useful about the Kosovo example is that it gives us a gateway into the crux of my objections – namely that the Great Powers typically have divergent interests on particular issues and often have divergent interests about whether or not the present system is one of which they approve (on this point Nathaniel Berman has an excellent article). This becomes especially relevant when we consider that
Occasionally reading the book I was struck by a certain distaste for Simpson’s depiction of legalised hegemony. Whilst Simpson claims to make no normative assessment of legalised hegemony the words he sometimes uses do sometimes seem to approve of legalised hegemony. Thus, he often derides defenders of sovereign equality as ‘legalists’ or ‘idealists’, whereas advocates of legalised hegemony are called ‘pragmatists’ or ‘realists’. In some instances I think this loaded language misses the point. Whilst, it is true that some of the defenders of sovereign equality may have been legalists or idealists it is surely the case that a pragmatist can appeal to sovereign equality for good old-fashioned realist reasons. Thus, a
How can we find a language that can hold together both formal legal arguments and arguments that criticize legal formalism? How can we express things in a way that makes it clear that determinacy and indeterminacy are not properties of international law, but are themselves arguments which we use in different contexts for different ends?
It would also be interesting to know what special role Simpson thinks legality plays in this process. If a state possesses political and cultural power, as well as consent from its allies and like-minded states, it is surely capable of projecting power and securing its interests informally or extra-legally. One wonders what precisely is the need for ‘legality’ here, why legalised hegemony is pursued instead of political hegemony, is this simply a matter of increasing legitimacy? Previously, I have tried to link a desire for legalised hegemony with declining hegemonic power, this would – I assume – be valid for some members of the Security Council. Equally, perhaps, we can argue that weaker powers seek to bind rising or stronger powers to them by coming together with them in a legalised alliance.
These considerations dovetail nicely into my broader critique of Simpson’s work. Before reading the book I discussed it with one of my lecturers, she described the book as ‘philosophically confused’. At the time I disagreed with this comment, I knew something of the conceptual apparatus Simpson deployed, and it seemed to me to be philosophically sound (indeed his deconstruction of liberalism I found to be quite philosophically astute). Having read the book I am forced to agree. Simpson argues that juridical sovereignty represents ‘a permanent tension within the present system; one that is unlikely to be resolved by anything less than a revolutionary change in international human relations.’ The problem with this statement is that Simpson has no basis on which to take such a position. Simpson has quite persuasively argued that juridical sovereignty recurs at numerous instances in international law but he hasn’t shown us why this is the case. The quote seems to suggest that Simpson thinks that the tension is one systematically thrown up by ‘international human relations’ but nowhere is this theme explored in the book. Personally, I am tempted to map this tension onto the Marxist vision of imperialism and international law. Thus, Marxists – like Miéville and Pashukanis – argue that international capitalism (viz. imperialism) throws up the legal form, which is a form of social regulation that deals with abstract formally equal (that is to say possessed of sovereign equality) subjects. However, simultaneously with this capitalism tends to concentrate wealth and military power into the hands of a few small nations. These nations are also compelled, by the internal logic of capitalism to struggle for new markets in the peripheries, secure resources (and to constitute some areas as the periphery). But this relationship leads to a struggle among these different nations, be it an anti-imperialist struggle, an inter-imperialist rivalry etc. In this way, the Marxist theory of imperialism throws up all the elements of juridical sovereignty – Great Powers, outlaw states and formal equality – and shows how they are combined in the legal form – through which these actors all engage in material struggle.
This keep of deep theoretical analysis, or materialism as I would call it, doesn’t really find a place in Simpson’s book. Instead what we see if an interesting conceptual apparatus, combined with in-depth description of a series of events. This particular form of investigation has become very popular with critical legal theorists in recent years. Thus, much of the work of TWAIL scholars consists of a conceptually informed historical study and Koskenniemi’s most-loved (Gentler Civilisations) is a historical work. In some ways this historical turn is to be appreciated, it has long been a weakness of Critical Legal Studies (particularly its US variant) that concrete historical study was abandoned for what Chase calls ‘literary theory’, this was a weakness which left them vastly over-estimating the role of the judiciary in social change:
Nothing is more striking about the literary criticism approach than the unwillingness or inability of its practitioners to provide concrete historical or sociological studies of instances where the “self-confidence” or “self-activity” of radical social movements (whether in the Americas, Europe, Africa, Asia or the Middle East) have actually been “crushed,” not by arduous working conditions or impoverization, not by the inability of civil society to impose civil rights and liberties against state power, not by police surveillance or death squads, not by famine or inadequate public health services, not by the dull necessity of economic reproduction, not by armed invasion, prison and torture cells, or “surgical air strikes” against villages and cities, but, rather extraordinarily, by the central target of the CLS critique: appellate judicial reasoning in the liberal mode.
Whilst historical studies are very important, it is also necessary to ground these historical studies materially, so as to understand the material processes which shape history and lead to the recurrence of certain features. There are many reasons why I think such study is important. Firstly, from a purely intellectual standpoint, I think theoretical studies are more satisfactory. This is because they are able to explain things (insofar as they can be explained) rather than just ‘state’ them, or ‘arrange’ a series of facts. Secondly, many critical theorists have aspirations (although perhaps they are better described as delusions) of providing intellectual and practical resources for activists, subaltern groups etc. Thus, it is a consistent aim of TWAIL scholars to help reclaim the law, or articulate the demands of the third world in the law and so on. However, these demands tend to be coupled with a rather devastating depiction of the historical complicity of law and colonialism. Surely then, it is necessary for these scholars to spell out the precise nature of the relationship between law and colonialism and explore how it is that colonial themes constantly recur in international law. If it is the case that there is some structural connection between the two (as I would contend there is) then activists have to be very careful as to how they use international law. Indeed a structural critique of the law may preclude law’s use by progressive groups. Conversely, if it is shown that law and colonialism merely coexist, and it is simply the case that the powerful ‘force’ colonialism into the law, then it may be that activists should take up international law and contest it with all their might. But the point is that unless the theoretical dimension is taken up again critical scholarship can provide no accurate guide to those who would seek to use the law.
I should say that I really enjoyed this work, and think it is a very valuable piece of scholarship. But whilst I think historical study is important, I think such study needs to be coupled with deep theoretical reflection that is able to explain why it is that certain patterns recur in history. This is why I think the resurgence of Marxist, Marxian and Marxisant theories of international law is so vital, so interesting and so important.
 Nathaniel Berman, “Legitimacy Through
 Susan Marks “International Judicial Activism and the Commodity-Form Theory of International Law,” (2007) 18 European Journal of International Law 199, at 209
 ‘The Aporia’s of Critical Constitutionalism’, Anthony Chase, (1987) 36