Monday, December 29, 2008

Law and Debord

When I was younger (about 17 or 18) I really got into – what might broadly be termed – 1960s Marxist humanism (or something like that). Of particular interest to me were Marx’s Paris Manuscripts (and there are still some passages I can remember almost by heart) and the Situationist International, particularly Guy Debord’s Society of the Spectacle. However, once I started to really get into legal theory (and other areas of the Marxist oeuvre), the SI no longer exerted that much direct influence on me. Yet as I was walking home from the chip shop recently it struck me that some of the stuff in the Society of the Spectacle might help to illuminate some legal theory stuff. This is an avenue I could see myself pursuing further in a few years, but here are some preliminary thoughts I have on the matter.

In the introduction to Society of the Spectacle Debord argues that ‘[i]n societies where modern conditions of production prevail, all of life presents itself as an immense accumulation of spectacles. Everything that was directly lived has moved away into a representation’ (1). This is obviously a modification of Marx, who argued that the wealth of capitalist society was an ‘immense accumulation of commodities’ (Marx 1999: 13). What is relevant to us is that Pashukanis argues ‘[a]s the wealth of capitalist society assumes the form of an enormous accumulation of commodities, society presents itself as an endless chain of legal relationships’ (1980: 62). Can we interrogate the relationship between commodity exchange, the spectacle and the law?

It’s clear that this question is not one that preoccupied Debord. In his Comments on the Society of the Spectacle Debord argued ‘[i]n the integrated spectacular, the laws are asleep; because they were not made for the new production techniques, and because they are outflanked in distribution by new types of agreement’ (xxvi). Debord (in what seems to me a particularly French moves), imagines law to be those formal, general ‘rules’ issued by the state which (although they might well be aimed at combating the spectacle) are simply ineffective. He fails to consider the fact that law itself might be intimately related to the spectacular society he describes.

Debord argues that the domination of the spectacle – of representation over lived reality – is the ultimate victory of commodity fetishism. What he fails to note is that as soon as commodity fetishism appeared, legal fetishism appeared also, man was abstracted from his concrete existence and made into an abstract, formally equal legal subject, who possessed certain rights and duties. Thus, in a very real sense, the legal subject is the already existing spectacular representation of actually existing human beings, as Pashukanis notes:
[R]eal conditions are necessary for man to be transformed from a zoological being into an abstract and impersonal subject of law, into a juridic person. These real conditions consist in the condensation of social relations and the growing power of social, i.e. class organization, which achieves its maximum intensity in the "well organized" bourgeois state. Here, the ability to be a subject of rights is finally torn from the living concrete personality, ceases to be a function of its active conscious will, and becomes a purely social quality. Legal capacity is abstracted from the ability to have rights. The legal subject receives his alter ego in the form of a representative while he himself assumes the significance of a mathematical point, a centre in which a certain sum of rights is concentrated.
(1980: 78-79)
Rather than law’s being ‘asleep’, the legal person is already a ‘spectacular’ one. The development of the legal form pre-figures, and remains active in the development of the spectacle more generally.

From this general point, there are some specific ideas that might be drawn. Firstly, the law takes spectacular situations, apprehends them, and even produces them. International law is particularly pertinent here. If we take the example of 9/11, Retort wrote a very astute article on its spectacular significance, they argued that:
Spectacularly, the American state suffered a defeat on September 11. And spectacularly, for this state, does not mean superficially or epiphenomenally. The state was wounded in September in its heart of hearts, and we see it still, three years later, flailing blindly in the face of an image it cannot exorcize, and trying desperately to convert the defeat back into terms it can respond to.
(2004: 12)
To my mind, what is very interesting is the way that international law responded this crisis. Firstly, international law was vital in apprehending 9/11 and ‘converting’ it into an event to which the US could respond to. In this way, law was able to apprehend the spectacular event. But in so doing it had already added its own logic to it, thus partaking in this spectacular event and overdetermining it. More interesting is the way in which law; in apprehending the spectacle of 9/11 then produced ever more spectacular events. The first – and most obvious – is the way that the ‘conversion’ allowed immediate, spectacular action in Afghanistan. But this was not enough. What is very telling is that the spectacle of 9/11 when ‘fed into’ the law was able to produce the defining ‘spectacle of our time’ – the War on Terror. I don’t want to pursue this too far but it is firstly clear that the War on Terror is an intensely legal reality. It is conducted through a series of legal bodies and has used copious amounts of legal argument (although some would argue it is bad legal argument). But secondly, is it not absolutely clear that the War on Terror is a spectacular one? The very name itself is not a war on concrete, actually existing terrorists (although it is that too) but a war on a concept, on an ‘image’, that of terrorism. The actions that took place through it, and the media coverage accompanying them are also pure spectacle. I am sure that we could obverse this logic in other places.

More particularly, there is a sense in which legal proceedings themselves are spectacular. If we think about the events of the trial – the pomp, the circumstance, the rituals etc., it is all pure spectacle. In order for ‘real life’ to be ‘represented’ in the legal proceedings it has to be ‘converted’ through a series of special rules and procedures, into something that fits its logic. Law is always and already ‘representation’.

But this process has deepened immensely in the past few years. We don’t have to look too hard to see the way that law enforcement and trial proceedings have captured the public eye. This is obvious from the numerous law-themed TV shows (and there are many) but also from the media attention on the law (and not just criminal law either). Debord argued that:
The celebrity, the spectacular representation of a living human being, embodies this banality by embodying the image of a possible role. Being a star means specializing in the seemingly lived; the star is the object of identification with the shallow seeming life that has to compensate for the fragmented productive specializations which are actually lived.
I have already commented on the general affinity the legal form and the celebrity might have (in that both are spectacular representations of living beings) but there is a sense in which now the two have merged. The moment of ‘actualisation’ for the legal subject – the moment of dispute, trial etc. – is also the moment in which the legal subject can be transformed into a celebrity; there is an even greater concentration of representation. One’s day in court might also be one’s fifteen minutes of fame.

To return to a theme much beloved of me, legal argument – by virtue of its spectacular character – is subject to a spectacular logic. First and foremost is the sense in which, when the law ‘apprehends’ a given piece of reality (the subject of a case) it ‘converts’ it into a spectacular logic. Thus, the law only ever inquires into the surface of the situation that confronts it. It is unable to consider the deeper logics that may have produced the dispute, or problem or whatever. Instead it treats the situation as a ‘unique’ event, with no structural logic governing it. Everything comes down to the actions of the abstract, formally equal representations that form the centre of the law. This has been much discussed by a lot of people under the rubric of exceptionalism, crisis focus etc., but no-one has tried to look at the structural reasons for this (which is quite ironic).

But – with all the contradictory logic that the spectacle brings – the law, whilst making each situation qualitatively unique, also reduces every situation to a quantitative similarity (much the same way as every commodity is reduced to ‘value’. Debord is very good on the ways that capitalism has standardised and quantified ‘time’ (although of course this is all taken from Lukács):
The time of production, commodity-time, is an infinite accumulation of equivalent intervals. It is the abstraction of irreversible time, all of whose segments must prove on the chronometer their merely quantitative equality. This time is in reality exactly what it is in its exchangeable character. In this social domination by commodity-time, “time is everything, man is nothing; he is at most the carcass of time” (Poverty of Philosophy). This is time devalued, the complete inversion of time as “the field of human development.”
This logic is exactly the same as that of the law. Whilst insisting on the uniqueness of any given event (or at least its remoteness from any factors which may have produced the event) the law remains obsessed with analogy and standardisation. Once the law has ascribed ‘responsibility’ for the breach on one of the parties, it then proceeds to reduced this breach to a standard ‘substance’ (money, time etc.) and deprive the ‘responsible’ party of this substance. Pashukanis has previously remarked how the logic of the criminal trial mirrors the logic of the exchange of equivalents (1980: 111).

But it is also at work more generally in the law. Thus, the law of self-defence (both nationally and internationally) insists that any action taken in self-defence must be ‘proportionate’, as does jus in bello. In this we see the double movement of the spectacle, whilst it denies that there might be a common logic operating in reality – and so treats each of its spectacles as a self-contained incident – it nonetheless seeks to reduce reality to a common equivalent.

I’d like conclude with what these little observations might mean for legal strategy. Recently, China Miéville has pointed me in the direction of Jacques Verges (which he found through Christodoulidis. Verges argues that we should use court action strategically, as a form of immanent critique – rupturing bourgeois ideology. Verges example consisted in using the legal forum to challenge the legitimacy of the court itself, but we can think of examples that go further than this – like the Yippies.

But my problem with this is that any strategy of rupture seems to be inescapably spectacular – the aim being to counterpose one’s own immediate image to the spectacle. Now, there’s always a possibility that legal strategy will get co-opted by capitalist society. The point of the rupture is meant to be that – precisely because it insists there can be no justice – it cannot be co-opted. But is there not the ever-present chance that precisely because of this spectacular logic the rupture is easily co-optable. The normal danger of legal strategy is that if we win, our opponents can say ‘we can’t be so bad, you got this’. The danger of the ruptural strategy is that it just becomes another ‘media event’, a stunt that has no political significance. Indeed, the danger is – that like 9/11 – any ruptural strategy is simply ‘fed into’ the law, which produces more spectacles. Verges is instructive here, I mean the man has a film about him. Bourgeois society could respond to his ruptural strategy not by saying ‘we’re so free here that he can do this’ but simply by treating him as an eccentric celebrity.

This harks back to Rasulov’s phrase about ‘intellectual anarcho-terrorism’. The only way to really avoid co-optation is to build a serious, practical movement which can’t simply be written off as spectacular. Whether or not such a group can use spectacular methods is – I think – very similar to whether or not we should appeal specifically to legality. I think the answer to both is – it depends, but it’s always going to be risky.

So, yeah, I’m aware that my thoughts on this are very sketchy, and I’ll probably forget all about this soon enough. But I do actually think that something might quite usefully come from reading Pashukanis (and law) through Debordian eyes, and vice-versa. I also think that such a position has a lot to say in illuminating our current conjuncture, and hopefully I could squeeze an article out of this.

Hope y’all had a merry Christmas and have most excellent plans for new year (I do not).

Guy Debord (1967), Society of the Spectacle
Guy Debord (1988), Comments on the Society of the Spectacle
Karl Marx (1999), Capital: Volume 1, Oxford World Classics
E.B. Pashukanis (1980), Selected Works
Retort Collective (2004), Afflicted Powers

Wednesday, December 24, 2008

Arendt and Equality

Not to harp on a theme (although I am wont to do so) but I’m reading Arendt’s Origins of Totalitarianism (1961, Meridan Books) and came across this quote:
Equality of condition, though it is certainly a basic requirement for justice, is nevertheless among the greatest and most uncertain ventures of modern mankind. The more equal conditions are, the less explanation there is for the differences that actually exist between people; and thus all the more unequal do individuals and groups become. This perplexing consequence came fully to light as soon as equality was no longer seen in terms of an omnipotent being like God or an unavoidable common destiny like death. Whenever equality becomes a mundane fact in itself, without any gauge by which it may be measured or explained, then there is one chance in a hundred that it will be recognized simply as a working principle of a political organization in which otherwise unequal people have equal rights; there are ninety-nine chances that it will be mistaken for an innate quality of every individual, who is "normal" if he is like everybody else and "abnormal" if he happens to be different.
I don’t think I need to do huge amounts of explanation here, but I do think it raises some interesting points. Firstly, to my mind, this is more convincing than what Schmitt says, because she doesn’t make homogeneity a determining fact. Secondly, I think what she does do is let is theorise Schmitt’s position more adequately. Rather than see homogeneity as central to democracy we can see that – owing to the structural problems generated by extending formal equality to all it is sometimes (perhaps oftentimes but not always and not inevitably) necessary that this equality relies on an inequality of the ‘other’. Thus, in certain conjunctures this manifests itself as a quasi-permanent exclusion of some people from liberal rights. However, and I think Arendt is right to do this, we don’t need to make inequality into a (linguistic or otherwise) precondition for equality. Thirdly, Arendt flags up what we already know that the critique of liberal equality as a false one isn’t necessarily politically progressive. Depending on political circumstances the Jews or the bourgeoisie could be targeted. This me to my fourth and final point, which is also something I’ve been thinking about. If these problems are endemic to liberal egalitarianism this says something about how we ought to orient ourselves towards liberalism. Clearly we don’t prefer the ‘bad’ argument about false equality (racism, fascism etc.), but we do have to see how this argument arises from the internal problems of liberal equality itself. This also means that a defence of liberalism, or even an argument for its ‘deepening’ (we need more equality!) is highly problematic. As such, the pseudo-term that is ‘left-liberal’ or ‘liberal-left’ really does need re-thinking (and I think merits some deep consideration in itself). The way we avoid these problems is surely by transcending them, this is not to say we jettison everything good about liberalism (sublation and all that) but I really don’t think it’s appropriate to dub ourselves ‘liberals’ of any stripe. Chris Arthur again (Law and Marxism: A General Theory, 1978, Ink Links):
In truth the demand for equality, or for equity in economic and legal arrangements, does not go beyond a radical bourgeois framework and does not grasp the qualitative break with previous forms that Marx looks forward to. Equality is the highest concept of bourgeois politics. It is not accidental that Marx never issued any programmatic declaration for it.

Tuesday, December 23, 2008

Right-wing Pashukanisites

Scott Newton had a lot of interesting things to say at Glasgow (and coined some very useful terms and concepts). One of the dangers he warned of is the ‘right wing Pashukanisites’, these are the people that understand the close relationship between law and capitalism, and the contingency of the state to law. But they use this understanding to argue for a withdrawal of the state from social life and widespread deregulation and privatisation. It’s true that there is a curious affinity between Pashukanis and (what might be broadly termed) classical liberalism, Nigel Simmonds has a very interesting take on this in ‘Between Positivism and Idealism’ (1991 50 Cambridge Law Journal 308):
The relationship between law and social relations is, then one of symbiosis. Yet the basic patterning of law runs from bottom to top. Contrary to positivism, which is inclined to suggest that the texts and the sources of law come to shape a formless social world, an adequate view should see the institutions of private law as reflecting (but systematising) the informal texture of social life, while formal criteria of validity and formal provisions for legislative and adjudicative power stabilise the stabilisers. Law in large part reproduces and confirms the structure of society.

This suggests, of course, that there is much in common between the broadly Hayekian view of law advocated here, and the Marxist view. G.A. Cohen, for example, has analogised the base/superstructure relation to a situation where four struts are driven vertically into the ground but protrude a distance above it; the struts sway and wobble in the wind, until a roof is placed on them. The roof is supported by the struts, but it in turn stabilises the struts ... In fact once we allow that one principal way in which law stabilises social relations is by authoritatively fixing their meaning, we move towards a qualified appreciation of the “imbricationist” view within Marxism, a view that denies the possibility of describing social relations apart from law and offers this as a reason for rejecting the base/superstructure distinction.

The extent of the resemblance between the somewhat conservative Hayekian view of law that I have sketched, and the Marxist view, is further evinced by the work of Pashukanis. Like Hayek, Pashukanis portrays law as emerging spontaneously from practices of dispute resolution, and sees the positivist emphasis on norms and authority [322] as a delusion arising from failure to grasp the priority of relations over formal norms. Again like Hayek, Pashukanis sees private law as the central core of the legal system, in relation to which public law and constitutional structures of authority are secondary and parasitic.
Hayek is important here, and I am reminded quite strongly of something Splintered was talking about recently. Crucially, however, as Simmonds notes, Marxists differ from liberals in their evaluation of law/capitalism etc. I’m not sure I think that ‘evaluation’ captures entirely the differences in approach here. The term evaluation seems to evoke the image of the Marxist and the Hayekian looking at the same phenomenon (capitalism), with the same understanding of it but the Marxist saying ‘capitalism is bad’ (because it deprives human beings of the capacity to fully realise themselves) and the Hayekian saying ‘capitalism is great (because it gives human beings the capacity to fully realise themselves).

But I think the differences are more important than this. To return to Scott Newton, he argued that one of the really important things Pashukanis (and Marxism more generally) is able to do is ‘see the public in the private’ and the ‘private in the public’. So, Marxists don’t just evaluate capitalism. We firstly see that the ‘private’ character of capitalism – and the wealth of individuals – is maintained by a complex relationship of violence, ideology and economic dependence, which may or may not be the state (in a bourgeois sense; although Akbar Rasulov has been saying some fascinating stuff about how in the Poulantzasian sense of state – a social relation which ‘holds’ social formations together – law always needs it; to my mind this is an avenue for exploration and avoids some of the physical violence centricity that I think China Miéville sometimes slips into). Secondly, we understand that the supposedly ‘neutral’ instruments of state, law etc. actually embed particular interests within them. This is in a double sense; firstly, law (as Duncan Kennedy has persistently notes) has a distributive impact upon supposedly private situations. As such particular interests use the law strategically, so as to secure private advantage. But we shouldn’t get carried away with this. And this brings me onto the second point. One of the most important things we can learn from Pashukanis is the limits to legal struggle. So, although a wide range of interests might be represented through the law, ultimately the legal form itself is produced by and reproduces capitalism. In this sense, it ultimately upholds the interests of one ‘private party’ the class which benefits from capitalism. As is often the case, behind the universal claims as to the rule of law lie the particular claims of one class – the bourgeoisie.

So, the important point is not just that we are just dealing with ‘moral evaluations’. Marxists see the legal form as ultimately upholding the interests of a particular class (the private in the public), whereas libertarians deny the importance of class as a salient category. Furthermore, Marxists stress that the class relationships of capitalist society are relationships of exploitation and domination (with struggle to alleviate the worst of these conditions). Typically, Pashukanis is accused of neglecting this, insofar as class is not hugely focused on in the General Theory and this, it might be argued that his similarity to (say) Hayek originates here. This point isn’t entirely without merit, but I would argue that the similarity comes from the fact that Pashukanis takes the law seriously on its own terms and, as Chris Arthur notes (Law and Marxism: a General Theory, 1978, Ink Links):
The monopolisation of the means of production by the capitalist class is an extra-legal fact (quite unlike the political-economic domination of the feudal lord). The bourgeois legal order contents itself with safeguarding the right of a property owner to do as he wishes with his own property – whether it be the right of a worker to sell his about power because that is all he owns, or that the capitalist to purchase it and retain the product.
Indeed, Marx himself does a similar thing in Capital (when he argues the difference between exchange and production). The point of the Marxist analysis is that it does not remain trapped in the law’s hypnotic image; it seeks to understand how the formal equality of the law interacts with the complex class reality of international capitalism. Thus, as Pashukanis himself notes that ‘‘the republic of the market’ masks the ‘despotism of the factory’’ (1978: 39). However, Pashukanis’ work goes beyond even this – and here is where we truly understand the private in the public (and the public in the private); because the particular despotism of the factor is not just masked by the republic of the market, it is intimately linked to this republic and is only possible through it, again Chris Arthur puts it well:
No amount of reformist factory legislation can overcome the basic presupposition of the law: that a property freely alienated belongs to the purchaser, and hence that the living labour of the worker becomes, through exchange, available for exploitation through capital.
(1978: 31)
Again, I would like to appeal to Foucault on discipline here. One of the really interesting points about Discipline and Punish is the way in which discipline is form of regulation which only comes about through dual processes of concentration and individuation. In other words discipline maps perfectly onto the process outlined by Pashukanis – whereby capitalism (and law) make everyone an individual whilst also brining making everyone and everything more closely inter-linked than they have ever been before.

To put it crudely then, the Hayekian knows rather a lot about circulation, but very little about production. He fails to see that despotic relations of production are in fact an outcome of the equal relations of circulation. The Marxist takes law seriously – and so understands the constitutive role of formal equality/the public in the private – but also understands law’s place in capitalist society and the attendant relations of class domination.

All of this is of course very similar to a previous post I have made.

Wednesday, December 17, 2008

That Foucault quote

Or rather this one:
The real, corporal disciplines constituted the foundation of the formal juridical liberties. The contract may have been regarded as the ideal foundation of law and political power; panopticism constituted the techniques universally widespread, of coercion. It continued to work in depth on the juridical structures of society, in order to make effective mechanisms of power function in opposition to the formal framework that I had acquired. The ‘Enlightenment’, which discovered the liberties, also invented the disciplines.
It's powerful, interesting and expresses something very true. But I do think that is underestimating the real role of formal equality. I also don't like the separation of law and violence here - I'd want to emphasise their intimate inter-linking.

Anyway this is a placeholder more for myself than anyone, because this is something I've always meant to return to.

Some very scattered observations on Schmitt and equality

I just finished reading Schmitt’s Crisis of Parliamentary Democracy (1988 MIT Press). It’s a very interesting text (and I use the word text deliberately, because calling this flimsy work a book is a massive overstatement) for a lot of reasons. From a biographical point of view it strikes me as the first text in which Schmitt seems really, really uncertain politically. His disenchantment with liberal is palpable – as is his fascination with ‘mythical politics’ (which subsumes both Bolshevism and Fascism) – but you can tell that he doesn’t really know what to do.

Now, I’ve always been very aware that reading Schmitt is not an unproblematic exercise, especially because the distinction between description and prescription (witness Telos). So one thing I always want to avoid is whitewashing Schmitt’s politics and denying that his political positions had any connection with his theoretical ones. That being said, I don’t really hold any truck with people who think that everything Schmitt said is tainted by association with his politics. Schmitt clearly has some interesting things to say about liberalism and (by extension) contemporary social life. Anyhow, blurbs aside, I was struck when I was reading this from the preface to the second edition:
[W]here a state wants to establish general human equality in the political sphere without concern for national or some other sort of homogeneity, then it cannot escape the consequence that political equality will be devalued to the extent that it approximates absolute human equality. And not only that. The sphere of the political and therefore politics itself would also be devalued in at least the same degree, and would become something insignificant ... Substantive inequalities would in no way disappear from the world and the state; they would shift into another sphere, perhaps separated from the political and concentrated in the economic, leaving this area to take on a new dis-[12]proportionately decisive importance. Under conditions of superficial political equality, another sphere in which substantial inequalities prevail (today, for example, the economic sphere) will dominate politics.
In a lot of respects this dovetails quite nicely with Marxian concerns. It has long been a criticism of Marxists that formal the move to formal legal equality merely allows other, substantive inequalities to move to the fore. However, I think there are several ways in which Schmitt could extend such a critique but doesn’t (and I suspect this comes down to his politics). Firstly, he doesn’t describe the ways in which this formal equality legitimates and maintains inequality. In his description, there is just a sense in which inequality ‘shifts’, but this misses the fact that formal politico-legal equality is able to mystify inequality. This gets compounded when we think about the labour-capital relationship. There’s a sense in which the employment relationship – in its most fully realised form – is only possible insofar as we have formal equality coupled with substantive inequality. So what we get is a difference in economic power which is only realised through the contract.

This also leads us to a second point. Marx’s account of capitalism doesn’t just suggest that inequality is realised through equality. It also shows how formal legal equality produces inequality through the commodification of labour power and the intensification and concentration of production [c.f. Foucault on discipline here]. This segues quite nicely with Schmitt’s more general concern. Much of the thrust of The Crisis of Parliamentary Democracy (or at least the introduction on the second preface) is the contradiction between liberalism (parliamentarianism) and democracy. Although the argument emerges in lots of different ways throughout the text, it has a specific meaning in the context of equality. Basically, Schmitt argues that the foundation of democracy is homogeneity:
Every actual democracy rests on the principle that not only are equals equal but unequals will not be treated equally. Democracy requires, therefore, first homogeneity and second – if the need arises – the elimination or eradication of heterogeneity.
Now, I have to say I really don’t agree with this specifically but I do believe there is a sense in which ‘democracy’ brings with it a certain notion of violence, whereby the majority enforces its will on the minority; but I’ll talk a little bit more about this later. Interestingly, Schmitt also echoes something I’ve written about Hobbes and Locke, only about Rousseau:
The idea of a free contract of all with all comes from a completely different theoretical world where opposing interests, differences, and egoisms are assumed. This idea comes from liberalism. The generally will as Rousseau constructs it is in truth heterogeneity.
Again, I have problems with someone who attempts to make an ‘authoritative’ reading of a contradictory thinker by simply saying what they ‘really’ mean. The contract clearly does a lot of theoretical work in Rousseau. What I think is interesting about this reading of Rousseau, and indeed problematic about Schmitt’s line on liberalism in general, is that what he is trying to do is say is 'here’s one distinct phenomenon ‘democracy’ which has these characteristics’ and here’s another ‘liberalism’ the problem is when you try to combine the two'.

But – both historically and conceptually – I don’t think you can really do this. The example of Rousseau and Locke etc. shows us that, theoretically, liberalism wasn’t simply elaborated on its own and then brought into contact with democracy (or more generally ‘the problem of the masses’) it was always elaborated in the context of a project of mass governance. I think this surfaces quite obviously at the theoretical level too; liberalism has usually had two aims – one of them is try to legitimate state coercion by reference to consent; the other is to use this framework (which has often drawn the masses decisively into politics) to protect certain rights and interests – typically property. As is often observed, this point immediately brings in somewhat of a tension – what has primacy ‘consent’ (which one can take for democracy) or the ‘rights’ which are meant to be protected?

These problems are not just the theoretical problems of liberalism. They are the instead the theoretical mediations of a very practical problem. The fundamental unit of capitalism is the commodity form, which posits every individual as an abstract, formal equal. But the development of capitalism brings people together, in ever greater numbers and causes the unequal development of economic power (in the worker-capitalist relationship). The point here is that the equality/inequality problem isn’t produced by applying ‘equality’ to mass-democracy, instead the two are historically and theoretically linked. There’s a great quote from Discipline and Punish [1991, Penguin] (which I don’t endorse fully) which I think negates the simplistic duality:
The real, corporal disciplines constituted the foundation of the formal juridical liberties. The contract may have been regarded as the ideal foundation of law and political power; panopticism constituted the techniques universally widespread, of coercion. It continued to work in depth on the juridical structures of society, in order to make effective mechanisms of power function in opposition to the formal framework that I had acquired. The ‘Enlightenment’, which discovered the liberties, also invented the disciplines.
Now, I’m probably going to stop here, as I’m aware I’m rambling, but let me say two things on the matter. Firstly, (as I noted about Agamben) it does feel like such a position allows liberalism (and the law) to shirk responsibility for its bad points – even if it also loses some effectivity. Secondly, the perspective I’m outlining sees fascism as – at least partly – internal to liberalism, a certain manifestation of its internal contradictions. This of course would upset both fascists and liberals. Schmitt’s position, on the contrary, allows liberals to remain ‘pure’ and fascism to pose itself as an alternative to liberalism. But my brief considerations might suggest that the fundamental contradiction that produces this problem – capitalist properly relations (and their attendant ideological form – liberalism) – isn’t abolished by fascism, they are only temporarily attenuated, and this is precisely why Schmitt’s ultimate political choice was the wrong one.

Friday, December 12, 2008

Imperial power and legal argument

Hello, it’s all quiet on my end at the moment, as I seem to have run out (for the moment) of ‘projects’. Hopefully there will be some new ones on the horizon soon (as opposed to editing and revising old ones, which is not always the most exciting thing to do). Anyway, as I said I was at a workshop last week on Pashukanis and International Law that was very good and very productive. I gave a little ‘position paper’ at the beginning that I’ve reproduced below, people who were there may not recognise it – this is largely because on the day I had a horrible hangover and hadn’t really had much time to practice, in any case – enjoy!:

Imperial Power and Legal Argument
What I want to do is examine our legal conjuncture by examining how legal argument has been shaped by configurations of imperial power.

So the start of our story is the first Iraq War. It’s important to start here as , typically, this is presented as the beginning of a New World Order, in which international law was to be effective but also ‘apolitical’, in the sense that it was no longer the plaything of two Great Powers. The legal claim that the US mounted were couched in traditional, formalistic terms – collective self-defence and a Security Council Resolution.

In line with this there was very little opposition to the war from legal commentators. Of course Iraq mounted its own legal arguments but these were not taken seriously.

Immediately one must look to the international context of these events however, the most important point to note here is that the Soviet Union was – at the time of the first Iraq war – undergoing a trauma from which it would never recover. In other words, international law’s rebirth coincided with the ‘unipolar moment’.

Thus, rather than see the relative uncontroversiality of the Iraq war as a function of legal consensus, it ought to be seen as an effect of the United States achieving a hegemonic position in the international order. As such the United States could deploy relatively uncontroversial legal argument in its favour.

So let’s take a big skip forward to Kosovo. Kosovo is important insofar as I think it ris continuous and discontinuous with this expression of US imperial power. Kosovo is problematic because Russia had started to regain some of its international power. Russia made this power felt through its use of ‘traditional’ legal argument. Hence, it became impossible for the US to use its earlier, uncontroversial legal rationales for war.

In response to this a new legal strategy had to be created – humanitarian intervention. Humanitarian intervention responded to the new contestability of legal argument in two ways. Firstly, the law of humanitarian intervention was positioned as protecting the international system as such. Thus, although it might not quite yet a norm, it nonetheless protected important legal entitlements – human rights. Secondly, such a right was necessarily exclusionary. This led to the formulation that it was ‘unlawful but legitimate’. Moreover, although it wasn’t specifically elaborated as such, humanitarian intervention could only accrue to certain ‘good’ states and could only be used against certain bad states. The central point here is that the US argued that it and its allies were the special guardians of the interests of the world system as a whole, as such, they might violate individual norms but uphold the system itself, or better yet (and I think these points run together in the argument) by virtue of their special position they may commit acts that might normally be unlawful but is rendered lawful.

The particular characteristics of this argument has been exacerbated as the US’ status as an imperial power has come under threat. Thus, the defining features of the Kosovo legal argument have been massively accelerated by the War on Terror. In the War on Terror the United States has presented its own imperial interests as interests central to the preservation of the world order. Concomitantly with this it crafted rights to intervene against terrorists and rogue states which only it or its allies could use. In the face of its declining factual power the US attempted to legally guarantee itself a role in the international order.

The tensions in legal argument finally reached breaking point in the second Iraq war. Here, again, the particular character of legal argument was generated by the particular international conjuncture.

It was obvious that the US’ imperial power was not doing well at this point. Russia and China and even Europe were asserting themselves. These rivals were not just making themselves felt factually, they were also engaging in legal argument. Thus, much of Europe as well as a massive anti-war movement were using ‘traditional’ international law to contest US imperial strategy. That trend which had begun in Kosovo had gained momentum.

This increasing contestability brought with it different legal strategies. One argument was to increase the War on Terror argument. Thus, elaborate legal justifications were adduced on a whole range of issues to show that the US had a special capacity to act. Another argument was to simply valorise the breaking of international law as a ‘good’ thing, as they were protecting the interests of the world system as a whole. Thus, those tendencies evident in Kosovo were being increasingly pushed. The problem was however, that these arguments were largely rejected, and their rejection triggered a sea-change in international legal argument.

This brings us nicely onto Georgia. What is very interesting about Georgia is the subversion of imperial legal argument. Russia has taken typical claims of imperial law – defence of nationals abroad, democratic intervention and above all humanitarian intervention and has claimed those rights for itself. This is significant. Over the past 20 years international law was deployed as against US action. Here, what was usually relied on was ‘traditional’ international law, which the US tried to defeat with its own special legal prerogatives. However, in Georgia, Russia has used those very same prerogatives as justification for its own expansionist actions.

The responses here have been interesting. The US has returned to traditional international law – territorial integrity etc. Yet at the same time there has been an increased insistence on legalising the hegemony of the US and its allies – witness the calls for a League of Democracies. This, perhaps, more than anything points to the new crisis in international law, and the roots of this crisis in the US’ imperial decline.

Whilst this does show us the malleability of legal argument it also shows us the way in which a crisis in US power has produced more expansive type of legal argument – in which everything seems to be up for grabs. The question is, does this conjuncture open up international law for more progressive challenges?

Some little points to note
One thing that I would have liked to have done more here is trace the character of scholarship back to these modes of legal argument (and imperial configurations). International lawyers, especially the more prominent ones, seem very much to be ‘Western’ and as such it is amazing the degree to which their scholarly output does reflect these things. So it’s definitely true that there was a certain crowing triumphalism following the first Gulf War about the new found effectiveness of international law.

I think the important thing I really wanted to flag up is the degree to which assertions of exclusionary liberal cosmopolitanism (in both their scholarly and practical moments) are actually expressions of weakness rather than strength. Note that in the aftermath of the first Gulf War there was no need to try and carve out a ‘special place’ for certain states in international law – because plain old international law served their interests just fine and dandy. The project of liberal cosmopolitanism only gains real steam with the emergence of new imperial problems.

What’s interesting is that this muscular liberalism had to become ever more muscular in the fact of liberal-legal opposition to American imperial power. It’s quite telling that ‘liberals’ were ready to line up behind the Kosovo intervention – meaning that although an exclusionary liberalism was invoked, it was one that only excluded certain ‘bad’ states. The war on terror meant that this project had to start differentiating between muscular liberals and (for want of a better term) collaborationists (old Europe etc.).

Whilst it’s true that sometimes this resulted in the abandonment of international law arguments tout court (although this is another point that needs to be flagged up – typically here it was argued that international law threatened the international system and so had to be broken in a given instance – by a power authorised to police the interests of the system – was this really so different from the ‘unlawful but legitimate’ justification for Kosovo) there have been a good number of neo-cons using considered legal argument to justify the War on Terror.

Actually, the paradigm of unlawful but legitimate as a strategy of entrenching weakened imperial power is one that I think might be quite productive. I think it links quite usefully with a lot of stuff Gerry Simpson says in Great Powers and Outlaw States and does help to explain quite a few recent things. In fact, Nathaniel Berman has a rather nice formulation, which incidentally I think can be usefully tied in to my last post:
The analysis of transgressive sacrality, however, suggests that it may well be the overt violator of fundamental norms who has the most at stake in maintaining those norms. Even if we try to maintain as realist a stance as possible, we may find that the U.S. can only keep proving to the world its status as the “sole super-power” if it is continually able to assert its prerogative to violation international rules. Once those rules no longer exist, it will have nothing to violate and no way to prove its transcendence of that system.
In fact, in general I think there is something very interesting about Iraq/the War on Terror more generally in this vein. Earlier I quoted Rasulov to the effect that post-structuralists might represent a kind of intellectual anarcho-terrorist. The interesting thing is that – to some degree – this position gets reversed. It is Empire that is arguing that international law is infinitely malleable (although not that Empire is deploying its own kind of practical antinomianism) with ‘progressives’ arguing it is a violation of international law – very topsy turvy. This also tells us that arguments for the indeterminacy of law seem to have no inherent political content – indeed the US fulfils the role of Batman, as the usual breaker of law’s but the preserver of systems (which as per the last post gives us some questions to ask about the relationship between the intellectual anarcho-terrorist and the above-the-law strongman).

Thinking about it some more, tying in Kosovo and the War on Terror to the same moment seems very, very important. The reason this is so is that – latterly (and Scott Newton was very perceptive on this – the critical crowd has become overly focused on Bush’s particular imperial drive as somehow very special. But if there is a high degree of material continuity between these strategies this tells us something about the last Democratic administration and probably – to be frank – the soon to be Democratic administration. Whilst the particular tactics may be different it strikes me that the strategy of unlawful but legitimate may be one that a declining Empire is forced to adopt (indeed there is a sense in which Obama is an embodiment of American exceptionalism – remember kids, imperialism in international law has often been 'liberal').

I mean it’s questionable how much this strategy is going to work – given that other states seem to be usurping these prerogatives, especially given the recent financial situation and the attendant sapping of power. That being said there are a number of hotspots in which I think the Obama administration will deepen the particular rhetoric of the War on Terror.

Wednesday, December 10, 2008

Law, transgression and the Joker

So anyway, I was ambling around in my usual, thinking of random things and not doing very much productive when a thought struck me about the Dark Knight (the Batman movie). Basically I was thinking back to this rather awesome post, which is quite possibly the most interesting theory post produced on the Dark Knight. Whilst I do think the post is correct in its orientation (as an attempt to take the film seriouslyand not a cod ideology criticism piece) I do rather take issue with its characterisation of the joker as in some way productive of an alternative to the order of Gotham City. Anyhow, this links back to a discussion I had with a friend about the Dark Knight, we both thought there were interesting parallels to be made between the Dark Knight and Dostoyevsky’s Devils, with the Joker representing a kind of Pyotr Verhovensky, a nihilist whose only role is to expose the radical instabilities and hypocrisy of the existing order. And what has this to do with legal theory? Well I was reading International Law and the Poststructuralist Challenge by Akbar Rasulov (who is definitely someone to watch) and I was struck by this:
By melting the rigid structures of dogma, poststructuralism, on the one hand, rewards every reformist movement with a powerful know-how of unorthodox politics and, on the other hand, undermines every radical project in its sight whose performance requires time, planning, and discipline, by immediately turning all its anti-dogmatic arsenal against it. By romanticizing the practice of endless questioning and denouncing the act of closure as such, does poststructuralism not risk becoming just another strand of intellectual anarchoterrorism whose only real achievement is to inoculate the Established Order against any effective challenges from the left? (Rasulov 2006: 807)
Anarchoterrorist strikes me as precisely the right description of the Joker. At no point during the Dark Knight does the Joker actually attempt to articulate an alternative to the order of Gotham City. What he does do is go out to expose the Order’s contingency and ultimate instability – endlessly questioning it, as it were. But ultimately, this position doesn’t just fail to go beyond the law; it also remains within its limits. The Joker can only ever define himself in opposition to the law. The delight in continually breaching the law, showing up its limits, showing its contingency but doing nothing more evinces a certain theological, fetishistic attachment to the law, insofar as the ‘legal’ character of the law is his primary reference point (even if only to rail against).

This I think, can be said to be a danger that poststructuralists (and their ilk) might fall into. In constantly emphasising the limits of the law, deconstructing it, revelling in it, they remain enthralled by the law. There’s a great line from Pashukanis that I continually quote (I have a few of these it has to be said):
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.
This is think is interesting. The idea that the ‘very denial of legality is turned into a kind of fetish’. Pashukanis is unfortunate in describing this as petit-bourgeois (indeed this is a general gripe I have with lots of Leninist stuff – the petit bourgeois seem to be responsible for an awful lot). Indeed Pashukanis doesn’t really do himself justice in talking that way, because he has a perfectly good theory to account for this fetish – outside of making vulgar class generalisations. Pashukanis is clear that commodity fetishism is also complemented by ‘legal fetishism’. There’s a great (and neglected) bit in the General Theory when Pashukanis fumbles towards drawing law, morality and the economy together:
In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third man as an egoistic economic subject.

All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged.

If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.
So in this sense, there is already the beginnings of an explanation as to why even radicals turn the denial of legality into a fetish. Precisely because the commodity-form has penetrated our very beings and we are all juridical subjects – even before we know it – legality occupies a very special place (see this post here, although I really think it would be interesting to write more on legality and subjectivity – Alain’s Supiot’s book is good – if liberal – on this). It is thus somewhat predictable that in turning to radical politics, we nonetheless hold on to this importance – maintaining the centrality of law but simply inverting how we relate to it. But this is not good enough, precisely because it ultimately upholds the special place and role of law in determining our own action.

Of course, it is difficult to read this without immediately thinking of Bataille’s ambivalence of the sacred argument. There, as here, the theological character of a norm is ultimately upheld precisely through its violation (for an excellent example of how this can be applied to international law, see Berman’s great paper Legitimacy through Defiance). The violation qua violation only gains its power from the importance of the norm it violates. Were we to consider the norm unimportant then breaching it would be per se unimportant, with any importance coming from context, results etc.

I think the religious connection is quite interesting. There are a few Marxist theories of the law that suggest we ought to view law as very similar to religion. These tend to mean that we ought to see law can be the ‘heart of the heartless world’ and as such (especially human rights law) can express the interests of the oppressed. But what if we take the analogy further? If – as here – we have already found that law has a certain theological function, perhaps we should look at the precise way that Marx addressed religion. Very useful here is a recent article in Monthly Review:
As a materialist, Marx opted not to invest in the abstraction of God and religion. At the same time he did not attempt to disprove the supernatural existence of God, since that transcended the real, empirical world and could not be answered, or even addressed, through reason, observation, and scientific inquiry. Instead he forged a practical atheism through his scientific commitment to a historical materialist approach for understanding reality in all of its dimensions. The practical negation of God and the affirmation of humanity and science demanded an active movement for revolutionary social change, the real appropriation of the world to pursue human development—the growth and expansion of human capabilities—and freedom.
In other words what Marx seeks to do is avoid the problem of transgressive sacrality by constructing a ‘practical atheism’ in which religion, God etc. is not its central aim. I would argue the same should be done for law. In order to escape the pull of the law it is necessary to construct a practical antinomianism (I think I may have stolen this from someone’s facebook profile but it fits), in which the law per se is no longer our reference point, as Lukács puts it ‘breaking the law should not be regarded any differently than the risk of missing a train connection when on an important journey’.

But such a project could not simply be defined to strategy, as strategy always depends on theory. As a preliminary, the tasks of such a project would be – to theorise the legal form, to theorise the limits of legal argument and vitally to formulate a practical strategy for using the law which is not enmeshed within it. Now of course, Marxists – particularly Pashukanis and Miéville have already begun this task and I personally think that the strategy of principled opportunism might also be a useful way to conceptualise the project of practical antinomianism.

Crucially however the Joker (metaphorically) and lots of (a certain variation of) critical legal scholars have never done this. As Rasulov says, the task is not to play language games, to show the limits of the law etc., the point is to build a project ‘whose performance requires time, planning, and discipline’. Indeed such a movement would ultimately ‘prove the this-sidedness of its thinking’ (as to the limits of the law) ‘in practice’. Anything other than this basically remains within the framework of Gotham City. The Joker needs Batman, Batman needs the Joker. Law needs disorder, disorder needs law.

Supplementary points
There are a few things that I think are worth flagging up that didn’t really fit into the main body of this. Firstly, there’s a sense in which we can conceive of these actions as being an sort of incomplete ideology critique. So generally ideology critique is taken as judging something by reference to its own standards, showing how this fails to live up to its standards and then transcending the particular instance of ideology. But the Joker (taken metaphorically to stand in for a certain tradition in critical legal theory) is content merely to judge the instance (or perhaps denies the very possibility) but without ever transcending it. In another words he remains trapped within the very instance of ideology he seeks to critique.

There also a sense in which this interplay between transgression and obedience might well be linked into the very structure of liberalism itself. The other Pashukanis quote I always love to dredge up is the idea that:
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.
It’s relevant here precisely because it shows us how the dialectical interplay between obedience to the law (because it is a form of private autonomy) and disobedience of the law (because it is a form of external violence) – what it shows is the way that both perspectives might nevertheless remained locked into the liberal-legal edifice, without ever finding a way out. Indeed China has a really interesting forthcoming article that talks (a bit) about the symbiosis between neo-conservative ‘nihilism’ and liberal legalism.

Apologies for the somewhat chaotic nature of the post, but now you have an insight into the disturbingly skewed nature of my thought processes. More posts coming over the next few weeks as the Glasgow University workshop on Pashukanis and International Law (very enjoyable, although I really wasn’t at my best) has stimulated the old brain cells.

Rasulov, Akbar International Law and the Poststructuralist Challenge, (2006) 19 Leiden Journal of International Law 799-827