Thursday, September 03, 2009

Schmitt and Space

Today I want to continue my discussion of Schmitt, which admittedly I started rather a long time ago. Now, this discussion has been quite difficult for me to articulate. This is because I had written some fairly comprehensive (and I thought pretty good) notes on these issues in my notebook and then kind of forgot about them (I’d quite like to work this up into an article at some point). Unfortunately, a few months ago (prior to the first instalment of this), I got rather inebriated and left my bag (containing my notebook) on the train. Lost property has not been forthcoming and, as such, I’ve kind of been working from memory. Anyway, this piece is probably best read with my post on Schmitt and appropriation, so keep that in mind.

It’s difficult to know where to start with this, but to recap, according to Schmitt, spatial orders produce legal orders. This is made as a general claim, but I think it useful to see how Schmitt deploys this in the specific case of international law as jus publicum Europaeum (European public law), this is useful because it illustrates the mechanisms by which this functions and allows us to criticise some of ethical Schmittians. Basically, here Schmitt’s argument is that the jus publicum Europaeum was in an inter-state order in which European states were the participants, all of which were treated as formally equal.

The centrepiece of this system was the so-called ‘bracketing of war’. Essentially, Schmitt argues that in the jus publicum Europaeum states in war would treat each other as a justus hostis – a just enemy:
In the 18th and 19th centuries, European international law achieved a bracketing of war. The opponent in war was recognized as a justus hostis and was distinguished from rebels, criminals and pirates. To the same degree war lost its criminal character and punitive tendencies, thereby ending discrimination between a just and unjust side. Neutrality was able to become a true institution of international law, because the question of the just cause, the justa causa, had become juridically irrelevant for international law.
This had a number of concrete effects: firstly, wars of annihilation no longer tended to happen, since the enemy was always a ‘just’, public enemy as opposed to an absolute one and secondly, these wars would no longer threaten the whole nomos (viz. the spatial order). In international law circles, a lot of people have taken this as being pretty interesting, and used it as a kind of ethical dimension to Schmitt. The argument is often deployed against supporters of humanitarian intervention – who argue that in designating one enemy as being unjust, evil etc. it paradoxically produces wars which are unrestrained.

But this kind of ethical (limited) endorsement of Schmitt is rather undermined by Schmitt’s point as to the spatial foundation of this European order. Essentially, Schmitt argues that ‘appearance of vast free spaces and the land-appropriation of a new world made possible a new European international law among states: an interstate structure’ (p.140). Basically, Schmitt’s argument is that the European inter-state order (and its bracketing of war) depended upon the existence of an area of free space where unlimited war could be displaced:
The significance of the amity lines in the 16th and 17th century international law was that great areas of freedom were designated as conflict zones in the struggle over the distribution of the new world. As a practical justification, one could argue that the that the designation of a conflict zone at once freed the area on this side of the line – a sphere of peace and order ruled by European public law – from the immediate threat of those events “beyond the line,” which would not have been the case had there been no such zone.
This spatial order did not derive essentially from internal European land-appropriations and territorial changes, but rather from the European land-appropriation of a non-European new world in conjunction with England’s sea-appropriation of the free sea. Vast, seemingly endless free spaces made possible and viable the internal law of an interstate European order.
So, the ethically valuable justus hostis for Schmitt depended on vast tracts of ‘free space’. And guess what, when Schmitt is talking about ‘free land’ he isn’t talking about uninhabited land. Above all for Schmitt, this ‘free land’ is that of the ‘new world’, viz. land that is inhabited by the ‘uncivilised’. So, for Schmitt, the Westphalian system depends on an imperialist system, whereby certain peoples don’t even merit being treated as an ‘enemy’ but simply inhabitants of ‘free space’.

Evidently, this isn’t great for those who would wish to appropriate Schmitt’s thought. But, beyond this, it is necessary to inquire what exactly Schmitt means by ‘free space’, and how he ascribes this quality to the ‘new world’. Probably the most pertinent thing to note is this:
The struggle for the land-appropriation of the New World and for land still free and outside Europe now became a struggle among European power complexes, which, in this specific sense, are “states”. Whoever lacked the capacity to become a “state” in this sense was left behind.
The intellectual advantage was entirely on the European side, so much that the New World simply could be “taken,” whereas, in the non-Christian Old World of Asia and Islamic Africa, it was possible only to establish subjugated regimes and European extraterritoriality.
This gives us a window to more broadly consider Schmitt’s claim. In a sense, his argument as to the relationship between intra-European relations and imperialism/colonialism mirrors Marxist claims about imperialism. So, the classic Marxist position is (a variant of the idea) that capitalist social relations internal to European states mean that there comes a point when capital must search for new markets (for whatever reason – this can be over-production, under consumption and class struggle), as such it becomes necessary to expand into the peripheries (these may be non-capitalist, semi-capitalist, less advanced etc.). But Schmitt simply doesn’t do this, indeed, as I noted on the previous discussion of appropriation, he really doesn’t think through why it is that Europe seeks to find ‘free space’. So, although he outlines some kind of drive towards this process, he doesn’t really grapple with the question of whether there is any logic to it. An especially useful reference point here is of course David Harvey and his notion of the ‘spatial fix’; here, whilst paying the correct amount of attention to the importance of space, Harvey understands that this is driven by a social logic of capital accumulation.

The notion that we are dealing with a process driven by social relations allows us to interrogate Schmitt’s conception of ‘free space’. In the discussion above it seems like Schmitt is making two points. First, the new world was not composed of states and so is not included in the order, and as such dominated. Secondly, owing to the intellectual and technology difference between Europe and the ‘new world’ Europe could treat the new world as if it was free space. Thus, for Schmitt, ‘free space’ is a kind of social fact, which the law recognises and accounts for. This view is highly problematic for a number of reasons. But two spring to mind immediately, firstly, as Mutua notes (‘Why Re-Draw the Map of Africa?’ (1995) 16 Michigan Journal of International Law 1113, at p.1126), a number of African states met the criteria for statehood, but were nonetheless subject to colonisations. Secondly, the kind of technological determinism Schmitt engages in doesn’t explain why it is the more technologically advanced European states did not dominate less advanced European states.

Thus, there doesn’t seem to be anything ‘pre-given’ about the idea that this is free space. But the notion of the spatial fix helps us see that it is not so much that these spaces were intrinsically ‘free’ and, driven by capital accumulation it was necessary that they be posited as such. The Marxist notion of the spatial fix helps us push this account, inasmuch as it explains the dynamics underlying the creation of ‘free space’ and why certain zones are designated as free. It is here, that some of the positions outlined by Schmitt above can come in; the process of capital accumulation on a world scale necessitates the idea that certain zones be designated as ‘free space’. In practice though, this is going to depend on a number of factors, the level of resistance to the process, the level of development of the country, inter-imperialist rivalry etc. Thus, rather than being an unproblematic ‘fact’ ‘free space’ is a unity of historical, social, political and economic determinations – space is a social relation.

This complexity also underlines another problem with Schmitt’s analysis. As I noted in the piece on appropriation Schmitt occasionally seems to succumb to a positivist temptation of treating law as recognising certain ‘facts’, thus ignoring its constitutive complicity in the creation of such facts. ‘Free space’ is a great example here. In Schmitt’s account, the ‘fact’ of free space (and this is repeated in his considerations of the air and the sea) seems to precede law: law then recognises this fact and is simply not active in those areas of free space (hence ‘beyond the line’ there was no law). But in recognising that there is nothing ‘intrinsically’ free about free space, we understand that its existence is always posited as such, as part of a complex social and political process. But this positing only takes place through the law; the claim that an spatial configuration is ‘free’ is always a legal one – indeed the notion of ‘freedom’ in this respect is legal. It is not enough to say that law isn’t ‘active’ here (since that is likely untrue anyway), since the declaration that ‘different standards apply’ is always a legal one.

Thus, we can see that whilst legal orders are driven by complex spatial considerations (which themselves are driven by processes of accumulation); legal argument is also used to create new assertions of ‘free space’. I think here it is useful to turn to a post I made a while ago – here – on the relationship of particular configurations of imperial power to legal argument. Thus, I would argue that given spatial configurations (understood as driven by capitalist social relations – imperialism) produce distinctive modes of legal argument. But, also, that in so doing imperialists may try and argue for new spatial configurations through the legal form. For, as I have argued time and time again, what is the war on terror if not an attempt to entrench a hegemonic coalition through the articulation of zones of free space? The logic of the war on terror, which tends to promote temporally and spatially unlimited forms of intervention for some states is ultimately an attempt to argue that those states which are not ‘on board’ are ‘free zones’ in which intervention can always take place (witness Pakistan for a great example of this).

Ok, so this is admittedly a bit muddled, and I want to do some more reading, but I do think that bringing Marxists to bear on Schmitt’s framework here does produce something quite useful.

Tuesday, September 01, 2009

Principled opportunism and natural law jurisprudence

It’s amazing how difficult it can be to make time for blogging. I’ve had a lot on, and frankly sometimes all I want to do after actually doing that stuff is … well … not very much. Hopefully I’ll free a little time up though (although frankly I seem to make this promise every time I make a post). Anyway, I want to finish off my thoughts on Schmitt, but first I’d talk a little bit about something that I’ve been thinking about for a while – namely the relationship between bourgeois natural law jurisprudence, and principled opportunism. This might seem a bit of an odd thing to do, but I actually think that the comparison can be theoretically productive, and helps us see what is useful for us in natural law jurisprudence.

So basically, what I want to argue is that principled opportunism (and the Marxist theoretical approach from which it derives), shares some similar presuppositions to natural law jurisprudence, but from these positions comes to a diametrically opposed practical/political standpoint. Hopefully what this can do is help us grasp some of the really interesting things about natural law jurisprudence (especially some of the more recent stuff) and further illuminate what principled opportunism might mean.

To be brief. Natural law jurisprudence tends to approach law as a specific form of social regulation, with its own identity and dynamics. Generally, natural law jurisprudence sees law as a form of regulation in which abstract, formal equality inheres. The next move, is to tie this social form to some kind of form of life. In Finnis, this form of life is one in which individuals are able to pursue diverse life paths (and thus their own ways of engaging in ‘objective goods’); in Simmonds, the form of law grants individuals a certain degree of ‘distance’; no matter how onerous the burden of law’s content, ones dittoes are not dependent on the arbitrary will of a sovereign, since this is always mediated through abstract, prospective rules that treat individuals as formally equal. In sum (and to be somewhat vulgar), these theories link the form of law with a form of life in which abstract individuals are able to pursue their own projects, viz. an idealised form of liberal capitalism (Simmonds in particular is a bit more complicated than this, but my general point is that law is tied to what one might call ‘liberty’).

The next step in this chain of reasoning is particularly interesting. Essentially, once law is tied to a form of life, this form of life is morally evaluated. Both Simmonds and Finnis (and to some degree one can include Fuller, Aquinas, Locke and even Hobbes in this) argue that this form of life is intrinsically morally valuable, inasmuch as it enables individuals to pursue their interests at some degree of distance from other individuals (etc.). In this respect, the form of law itself is intrinsically morally value, given that it is productive of abstract individual liberty. The brilliance of this move comes when it is juxtaposed to the problem of unjust content.

Essentially, given that the form of law is systemically morally good, the moral value of the legal form exists even when it expresses immoral content. For Simmonds this is because there is still a ‘distance’ between the rulers and the rules and for Finnis, this is because the form of law is supportive of a system of individual liberty. This gives rise to what Finnis calls a ‘collateral obligation’ to obey the law. Essentially, when one decides up whether or not to obey the law, the justice or injustice of its content is not the only factor to be taken into account, this has to be weighed against the intrinsic moral value of the legal form (which is produced by/produces an intrinsically moral form of life). Thus, the form of law is valuable, even while the content is variable. It is a case of form asserted against content.

The obvious interesting point from my perspective is the way in which the natural law approach dovetails with that of Pashukanis. Thus, Pashukanis identifies law with a specific form and ties it with a specific form of social life; which – in a less idealised form – is the same of that the natural law jurisprudes, capitalism. However, there is of course a crucial difference in these approaches, which Nigel Simmonds (who has made extensive and fascinating excursions into the Marxist tradition) sums up quite nicely (‘Between Positivism and Idealism’, (1991) 50 Cambridge Law Journal 308 :
The conservative view of law that I am defending has much in common with Marxism. Yet if differs from Marxism in the evaluation that it makes of law.
The crucial difference in the Marxist and natural law accounts of the legal form is how they evaluate law and the form of social life it is tied to. Obviously, Marxists are wont to evaluate capitalism of being composed of relations of exploitation and domination, and as a destructive and ultimately (hopefully!) transient phase of human life. I think the crucial move made by Marxists in this respect (and I have elaborated on it more here and here) is that the ‘form’ of capitalism free exchange is structurally tied up with a certain content; it’s not just a case then of the liberal form of capitalism being occasionally confronted with some nasty stuff; but rather that this form systematically throws up problems owing to the realisation of surplus value. Thus, domination, exploitation, class struggles etc. are always produced by the formal equality that characterises capitalism. Chris Arthur puts it rather excellently (in the introduction to the Ink Links Law and Marxism: A General Theory:
From a dialectical point of view a form is the form of its content, and one may be alarmed at the outset if one imagines that Pashukanis proposes to write a treatise on legal forms in abstraction from content. However, this would be a misunderstanding. In characterising law as a bourgeois form he clearly is relating law to a definition material content – the social relations founded on commodity exchange.
Thus, on this we can reverse the natural law position. The form of law is not something intrinsically valuable, but (if you’ll allow me) quite the contrary, the form embeds relations of exploitation and domination. And this brings us to principled opportunism, and its complete opposition to the collateral obligation. There, the form of law is invoked against unjust content; thus in spite of its content, the form may compel obedience. But in principled in opportunism the content of law is invoked against the ‘unjust’ (for want of a better word) form, and content may compel obedience (or more likely invocation), in spite of the form. In the collateral obligation, law is in principle valuable, in principled opportunism law is ‘in principle’ not, and as such should never be invoked per se.