Law and Disorder

There's no such thing as a 'natural' disaster

2010-01-18T14:17:00.005Z

As the Haiti disaster unfolds to ever greater levels of misery, it's worth flagging up a number of brilliant analyses by people on the left. Whilst I'm sure many people have already read these, I think they give us some interesting thinking matter with regards to international law. The two obviously important pieces are those by Greg Palast and Peter Hallward (but also see Lenin, Kasama and K-Punk) The central point of both of their arguments is that there is simply no such thing as a 'natural' disasters. 'Natural' disasters always occur inside of a social context which mediates and determines the effects of such 'natural' disasters. In Haiti's case this is no different, as Hallward notes:

The noble "international community" which is currently scrambling to send its "humanitarian aid" to Haiti is largely responsible for the extent of the suffering it now aims to reduce. Ever since the US invaded and occupied the country in 1915, every serious political attempt to allow Haiti's people to move (in former president Jean-Bertrand Aristide's phrase) "from absolute misery to a dignified poverty" has been violently and deliberately blocked by the US government and some of its allies ...
Haiti is now a country where, according to the best available study, around 75% of the population "lives on less than $2 per day, and 56% – four and a half million people – live on less than $1 per day". Decades of neoliberal "adjustment" and neo-imperial intervention have robbed its government of any significant capacity to invest in its people or to regulate its economy. Punitive international trade and financial arrangements ensure that such destitution and impotence will remain a structural fact of Haitian life for the foreseeable future.
It is this poverty and powerlessness that account for the full scale of the horror in Port-au-Prince today. Since the late 1970s, relentless neoliberal assault on Haiti's agrarian economy has forced tens of thousands of small farmers into overcrowded urban slums. Although there are no reliable statistics, hundreds of thousands of Port-au-Prince residents now live in desperately sub-standard informal housing, often perched precariously on the side of deforested ravines. The selection of the people living in such places and conditions is itself no more "natural" or accidental than the extent of the injuries they have suffered.

This is absolutely vital, and needs to be repeated again and again. However, from our perspective there is something else that has to be foregrounded, all of this takes place within a context structured by international law and international legal organisations. Here, I think it's useful to turn to Susan Marks' excellent piece 'Human Rights and the Bottom Billion' (2009 European Human Rights Law Review, 1: 37-49). What is vital about this piece is the way in which Marks engages with the types of arguments above (particularly with the work of Mike Davis), but also brings them into engagement with international law literature. She argues, that the conditions and relationships that produce these problems (poverty in her case, but the point holds more generally) are themselves deeply involved with international law and international legal institutions.

How is this borne out in the case of Haiti? Here, I think we have to return to China Miéville's brilliant piece on Haiti 'Multilateralism as Terror'. In this piece, Miéville - engaging with Peter Hallward's work on Haiti - shows the way in which the imperialist-backed coup in Haiti and the consequent destructive occupation was deeply complicit with international law and international lawyers. The coup, and the occupation, are phrased in uncontroversial language of UN Security Council Resolutions and are impeccably multilateral affairs. Of course, we absolutely have to go further than this. The IMF loans, and the brutal conditions that impose upon Haiti (with the attendant poverty exacerbating effects) are the creatures of international legal organisations and international legal regimes.

So 'natural' disasters, are obviously not natural. But when we look to the social context in which these disasters occur and are recieved, we must understand that international law - a constitutive force on the world stage - is a vitally important part of this context.

So, of course, the important thing to ask here is 'what is to be done?'. The absence of any widespread acknowledge of international law's role in 'natural' disasters seems to me to be a symptom of the 'anxiety of influence' that Susan Marks describes in her article 'State-Centrism, International Law and the Anxieties of Influence':

Viewed from this angle, the anxiety of influence felt by international lawyers is a not just a fear of irrelevance but a fear of relevance as well – not just a shock at the recognition of politics in law, but a shock at the recognition of law in politics. If this is right, then what is troubling is not only belatedness, but also primordiality, and not only indebtedness, but also responsibility. John Bolton and Richard Perle may like to think – or like us to think – that international law is irrelevant to the US administration, but John Yoo and Jay Bybee know better. But then, their intricately argued ‘torture memos’ only really confirm what historians can tell us anyway: that empire is a legal construct – not only encumbered by international law, but also partly constituted by it.
p.347

Now, in a sense this is entirely right and it is one of my favourite quotes. But perhaps we need to go a little bit further. Rather than talking about an 'anxiety of influence', might we (and I should thank Akbar Rasulov for pointing this out to me) speak of 'false consciousness' in the sense that Lukacs talks about. This is not the false consciousness of the working class that tricks it into not opposing capitalism, but rather the false consciousness of the ruling class, so as Lukacs says in History and Class Consciousness:

But the veil drawn over the nature of bourgeois society is indispensable to the bourgeoisie itself. For the insoluble internal contradictions of the system become revealed with, increasing starkness and so confront its supporters with a choice. Either they must consciously ignore insights which become increasingly urgent or else they must suppress their own moral instincts in order to be able to support with a good conscience an economic system that serves only their own interests.

I think this is important to note, because it points us to the fact that simply 'revealing' this to international lawyers is not enough. Precisely because of what is at stake here - the very ability for the international legal profession to continue to function qua a profession, 'revealing' stuff is not enough. Moreover (and this is perhaps a more important point), we have to consider those structural factors that intellectually those in the legal profession/academy from taking 'responsibility' for this connection. I've said more about this sort of thing elsewhere but my basic idea is that the shape of the legal form itself - an abstract formal relationship that reveals itself through concrete disputes, tends to abstract these things from their material context.

I think the K-Punk stuff linked to above is good here - in a rather oblique way. I think K-Punk is completely correct to summarise the liberal response to 'natural disasters' thusly:

Now is not the time for political discussion, we'll look at the long-term causes later .... But, since Band Aid this "emergency" temporality has become a permanent state of affairs, allowing neoliberalism to further strengthen its hegemony under the cloak of "post-politics".

I would argue though, that this effect is slightly different. Here, I'd want to draw on the idea of structural and subjective violence. In a sense situations like Haiti are the confluence of structural and subjective violence. There is a violence 'subjective' erruption of immediate violence (like an earthquake) that is recieved and conditioned within relationships of structural violence. What is fascinating is that international law frequently portrays itself as being 'incapable' of dealing with structural violence (and indeed of seeing it). When presented with a problem like poverty etc. in its 'structural' phase, international lawyers will frequently argue that these are problems that are too complex, too big etc. to be tackled by an immediate intervention, but have to move to an - ever-deferred - long time 'progressive realisation'. When the violent subjective erruption happens, this is when 'Band-Aid' politics come into play - abstracting all of these event from their material context.

What is interesting then, that in naturalising structural violence in the first place through the language of complexity etc. international law treats it as a necessary condition - thus it is generative of 'false necessity'. The moment at which the subjective violence occurs, this is rendered as a contigent fact outside of any political or material context.

This is perhaps problematic for a project of 'taking responsibility' for two reasons. Firstly, because the inability to 'take responsibility' isn't just a matter in our heads. It is at least partly generated by a the shape of the legal form. Secondly - and perhaps more importantly - in locating the problem in terms of 'responsibility' we are privileging (I think) writing as the site of political action. But how does 'taking responsibility' for the role of international law's role in imperialism work as a political intervention. Precisely because these issues are structural 'just' recognising things is not enough. If we have identified those structures which produce oppression and exploitation we also have to change, overturn and abolish these structures. As Fanon says (in Black Skin, White Masks):

In other words, the black man should no longer be confronted with the dilemma, turn white or disappear; but he should be able to take full cognizance of a possibility of existence. In other words, if a society makes difficulties for him because of his color, if in his dreams I establish the expression of an unconscious desire to change color, my objective will not be that of dissuading him from it by advising him to “keep his place”; on the contrary, my objective once he motivations have been brought into consciousness, will be to put him in a position to choose action (or passivity) with respect to the real sources of the conflict – that is towards social structures.
p.100

Work showing these connections is important precisely to put people in the position to choose is vital. But that is not per se political. What is political is taking a partisan position within the law - arguing relentlessly and inconsistently for Haiti (principled opportunism) - whilst also struggling for the ulimate abolition of those forms (including law itself) that produce these problems in the first place.

Resolution

2010-01-18T14:14:00.004Z

So, yeah, as is evident I haven't exactly been a posting machine over the last few months. In my defence I've been fairly busy, but that's not very much of an excuse. So, anyway, I have made a New Year's resolution to try and post much more frequently, we'll see if this actually comes about. That being said, there are interesting things afoot that probably merit some form of reflection, and I have a notebook bursting with the kind of incomplete ideas that beg for blogging.

Schmitt and Space

2009-09-03T16:20:00.001+01:00

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.
p.309

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.
p.97

And:

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.
p.183

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.
p.130

Furthermore:

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.
p.132

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.

Principled opportunism and natural law jurisprudence

2009-09-01T21:16:00.002+01:00

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.
p.323

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.
p.29

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.

Schmitt and Appropriation

2009-07-19T17:57:00.003+01:00

So a few months ago (!), I finished reading Carl Schmitt’s The Nomos of the Earth (2003 Telos Press), which I have been meaning to do for a long time. As ever, the book has to be read with some caution, as Schmitt’s politics (and even if they aren’t Nazi politics they are massively reactionary politics) inform his argument. Indeed, one of the really interesting things about the book is the way in which (I think) it deals quite a serious blow to the ‘ethical Schmittians’ or those who think we can appropriate Schmitt’s concept of the political for the left.

Anyhow, given that things have been pretty quiet on the blogging front of late (although fear not brave readers, I am finishing work in two weeks, although unfortunately I then need to begin flat hunting – doh!) I thought I might do some posts on Das Nomos, although admittedly looking over my notes I remain uncertain how much of it I actually remember of it. Schmitt’s central and most interesting pre-occupation in Das Nomos is the relationship between ‘space’ (not outer-space but the general kind) and international law. His central contention is that every legal order is based on the appropriation of space.

Although Schmitt’s initial exposition of this claim feels a little mystical, his concrete description of it is pretty interesting. Thus, to take the example of property, Schmitt argues:

But even when the initial land-division establishes purely individualistic private ownership or common clan ownership, this form of property remains dependent on the common land-appropriation and derives legally from the common primeval act. To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognizes completely “free” private ownership of the individual.
p.48

This is a fairly brilliant point (and one which should make libertarians etc. think). Every legal conception of property has to begin with some collective which has ‘collective’ ownership of the land, which can then be parcelled out in whatever way is seen fit. This problem is very obvious in – for example – Locke; who has to rely on religious argument as a background to his stuff about individual appropriation.

This is also useful insofar as it continues and deepens Schmitt’s critique of legal positivism. Schmitt’s classic argument (although I can’t find a reference to hand) is that positivists deny the violence of law’s founding moment by always treating it as pre-supposed, as a fact which has no relevance to the continuing existence of a legal system once it has come into being. But of course, with this perspective here, this ‘founding moment’ is constantly there, always hovering as the essential legitimating ‘fact’ which determines every individual proprietorial dispute.

Later (and this is something I will explore in another post) Schmitt goes further than this, arguing that different spatial configurations produce different types of legal orders. But one thing I want to flag up here, and it’s something I will return to later, is that whilst Schmitt does better than classical legal positivism in pushing forward legal theory, I would argue that he doesn’t go far enough (or if he does, then he goes in the wrong direction).

This is because, for all his posturing, Schmitt treats appropriation as a ‘fact’. Thus, in his appendix to the book, Schmitt attempts to extend his legal theoretical position into one with larger aims, he firstly argues:

Each of these three processes – appropriation, distribution, and production – is part and parcel of the history of legal and social orders. In every stage of social life, in every economic order, in every period of legal history until now, things have been appropriated, distributed, and produced. Prior to every legal, economic and social order, prior [327] to every legal, economic, or social theory are these elementary questions: Where and how was it appropriated? Where and how was it divided? Where and how was it produced?
p.328

Immediately, then, we can see that it might be said that Schmitt has succumb to the positivistic temptation. When is there ever a period that is prior to every ‘economic and social order’? Appropriation will always take place in an always already existing set of social and economic circumstances. Although this might not seem that important, it is essential when we consider Schmitt’s move with appropriation. Here Schmitt argues:

The history of peoples, with their migrations, colonizations, and conquests, is a history of land-appropriation. Either this is the appropriation of free land, with no claim to ownership, or it is the conquest of alien land, which has been appropriated under legal titles of foreign-political warfare or by domestic-political means, such as proscription, deprivation, and forfeiture of newly divided territory. Land-appropriation is always the ultimate legal title for all further division and distribution, thus for all further production.
p.328

So for Schmitt appropriation always has primacy. He can treat it like this because he isolates appropriation from its social and economic context (which it apparently precedes). As such, he doesn’t have to answer the stunningly obvious question as to why appropriation proceeds in a certain way. Such a move can also be seen in the left attempts to appropriate Schmitt’s legacy. A recent example of this is Susan Buck-Morss’ article ‘Sovereign Right and Global Left’ ((2007), 19 Rethinking Marxism 432-451), in this article she articles that the Marxist conception, placing modes and relations of production in the driving seat, is inferior to the Schmittian conception, which recognises appropriation, and the political as ‘prior’ and determining of these. But of course in actual fact, people don’t just ‘appropriate’ for the hell of it, they are driven by wants, needs, requirements etc.

The only way to avoid this particular recognition (that appropriation is itself driven by social relations of production etc.) is do what I think Schmitt does. This is to adopt what one might call (although I think incorrectly actually) some kind of Hobbesian position, whereby human beings are ‘naturally’ covetous, and so constantly seek to appropriate more and more. To be honest though, Schmitt doesn’t even have the courage of his convictions on this point, adopting instead a boringly liberal position and arguing:

All efforts to abolish war immediately are thrust into the context of three great substantive problems, which are more political than juridical if one chooses to make a distinction between juridical and political: security, disarmament, and peaceful change.
p.275

Of course, this would seem to fly in the face of the claims as to the centrality of appropriation in ‘the history of peoples’, given that apparently non-peaceful appropriation can be stopped simply through disarmament, security etc. You may have noticed that when I criticised Schmitt for treating appropriation as somehow ‘prior’ to everything else I didn’t mention law. This was deliberate because it is slightly more problematic. Firstly, I think it’s easy to imagine a point at which there wasn’t law, and specifically, that appropriation could occur in a way that was prior to the existence of a legal system (in a way that simply isn’t possible with the notion of economy or society broadly conceived). Secondly, Schmitt does deal with the way in which appropriation is regulated by law at various points. Indeed this is quite a telling point against him, clearly – especially in the ‘modern age’ – appropriations take place within an already existing framework of law – both national and international – and are usually conceived in legal terms.

So, where does this leave us? I think it is fairly unsustainable to claim that appropriation is some kind of independent, founding moment – given that appropriations always take place within, and are driven by, social, economic and legal relations. Thus, whilst appropriation may well be a vital part of human existence, and have especial relevance for the law it is driven by something else. This also helps us see another flaw in what Schmitt is saying. Once we stop treating appropriation as some kind of independent variable, we also move away from the idea that it is appropriation is in any way a unitary, unchanging ‘act’ that is remains similar across different epochs of human life and modes of production.

Thus, what we might look at is the way that appropriation – an act which is of course structured by the law – changes with different modes of production. So, what is especially relevant for us, is that we can see the specific legal form of appropriation capitalist international law is one centred on capital accumulation. Thus, appropriation is driven by the social relations of capitalism – internationally this is of course imperialism and capital accumulation – (although this is dialectical of course, because appropriation of ‘raw materials’ – as it were – given rise to modes of production) and as such reflects this. This gives us a way into examining the insights of TWAIL, insofar as we can see that the law of appropriation is structured by the core-periphery divide, which is itself produced by the imperatives of capital accumulation.

And what is especially important about capitalist accumulation is its ‘infinite’ character. Because of course, since capital only exists to realise itself, over and over again, capitalist appropriation is of an unlimited and continuing character. It is here that we can properly (following Arendt in particular) situate the Hobbesian depiction of the never-ending appropriation of the war of all against all. As such, we might say that Schmitt’s foregrounding of appropriation acquires some validity when understood as some proper to capitalist imperialism. Yet without understanding the social relations that give rise to this specific form of appropriation Schmitt’s theorisation will always be inadequate.

What we have here is an account of appropriation which sees it as driven by an embedded in the social relationships of its time. Specifically with international law, we can see how the legal argument that constitutes appropriation is shaped by the demands of capital accumulation. In my next post I want to extend this examination into Schmitt’s conception of free space. Hopefully, at the end of this we’ll be able to arrive at a conception that preserves Schmitt’s insistence on the importance of space to legal argument, but moves beyond this insofar as space is seen as a social relation.

Anti-terror and racial balance

2009-06-21T12:00:00.000+01:00

So presumably, people have heard the hilarious news that police are stopping and searching white people under anti-terror laws so as to 'balance' racial statistics. Now, I have to say that this does confirm some of the anecdotal evidence I have heard from various people. What I find very interesting is Lord Carlile's response to this. Whilst he is obviously right to say that this is frivolous, bad etc., I find his particular reponse to be very telling:

"I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop."

And what does he mean by 'any known terrorism' profile? Well, of course it is Islamic extremism, thus Carlile opines:

If, for example, 50 blonde women are stopped who fall nowhere near any intelligence-led terrorism profile, it's a gross invasion of the civil liberties of those 50 blonde women.

(So interestingly this is another bit of evidence as to how much the war on terror stuff is massively racialised - since one need not be brown to be a Muslim). But, for those of us not priveleged with being white being stopped and searched is perfectly fine and indeed does not seem to 'invade' our 'civil liberties' at all:

"The police are perfectly entitled to stop people who fall within a terrorism profile even if it creates a racial imbalance, as long as it is not racist."

What else could be racist in this context? In terms of institutions there can be no other definition of racism. And in terms of individual stops and searches, what possible way is there to judge whether a specific search is racist or not, given that all such searches are apparently prima facie valid? Indeed, the reports abound with such ridiculous ideas, perhaps most amusing is:

Former British diplomat Sir Edward Clay told BBC Radio 4's The World Tonight programme he was subjected to a stop and search five weeks ago while on his way to work at the National School of Government, near Victoria Station in central London.
He said he had found the experience "sinister" and "intimidating". He told the programme: "I'm 63, I'm a grey-to-brown-haired white male, I'm 5ft 10 ins tall, looking extremely conventional."

Or, to translate 'but I'm white!'.

I seem to have gone off on a bit of an unstructured rant here. But I think this links quite interestingly to something I said a while ago about liberty, security, Marx and race. Essentially, I noted that in human rights rhetoric (and often its delpoyment) there is a dialectic between liberty and security. Liberty is the ultimate goal, but some people use this liberty to undermine liberty, so this means that we have to bring in 'security', which means:

This amounts to saying: the right to liberty ceases to be a right as soon as it comes into conflict with political life, whereas in theory political life is no more than the guarantee of the rights of man – the rights of the individual man – and should, therefore, be suspended as soon as it comes into contradiction with its end, these rights of man.

But I noted that in practice this isn't some kind of irresolvable dilemma. The deprivation of liberty is always focused on some particular - often racial, often political - group. The above illustrates this really rather well. The fact that a blonde woman being searched must be a violation of her civil liberties, whereas a black man being searched just because he is black (and so fits the profile) apparently can't have his civil liberties violated shows us the way in which this dialectic plays out.

Multilateralism as Terror

2009-06-20T12:00:00.000+01:00

Courtesy of Birkbeck's e-print service I'm pleased to finally be able to link to China Mieville's most excellent article 'Mulitlateralism as Terror: International Law, Haiti and Imperialism'. I'd suggest that everyone read this as it provides a neat and elegant summation of China's view on the intimate (indeed structural) relationship between law, imperialism and power; the legal character of the war on terror etc. and the consequent uselessness of opposing these actions with war. All of this is beautifully illustrated through a (fascinating in its own right) exploration of the UN intervention in Haiti.

All of this is very salutary and even if one doesn't agree with Mieville (as people may have gathered, I largely do, though we have our differences) his perspective has to be taken seriously. Indeed I think this article is probably the most advanced example of a recent trend with a few critical international legal scholars who insist on examining the ways in which imperial power structures and is structured by law and legal argument.

As if that wasn't enough, from page 43 onwards Mieville develops his understanding of imperialism and international law. Thus:

‘American interests and power’, however, are of course not abstract (though they often appear so in the realpolitikal discourses of both the right and of liberalism): in the modern epoch they, and the imperialism of which they are another way of speaking, are functions of competitive accumulation in a framework of capitalist states. It is not only a belief in the efficacy of this imperial methodology that motives the widespread, untheorised, often unspoken, and unproblematised mainstream support for the Haitian coup: it is also its specific fruits and the sectors of capital that benefit from it.

Mieville proceeds to show us how this perspective can be deployed in the Haitian situation. Moving to the general level he unearths an extraordinary quote from Carla Del Ponte where - speaking to Goldman Sachs - she argued that capital should back international criminal justice because 'I can offer you high dividends for a low investment':

Del Ponte is quite right to point out IL’s role in capital accumulation. Contrary, however, to her line that it is solely as a maintainer of ‘good governance’ and peace that IL performs this function, Haiti illustrates that IL can also do the job efficiently through the propagation of instability and the unleashing and legitimation of murderous violence.

Theorising international law in terms of enabling capital accumulation is a brilliant theoretical move, which can fruitfully be combined with Harvey's concept of accumulation by dispossession and Klein's work on the Shock Doctrine. Indeed, I think this might also provide us with a useful corridor into the work of Third World scholars. Historically, we can see that international law - in interpellating certain territories as non-civilised (or semi-civilised) - enabled primitive accumulation (and Marx can be usefully brought in here). But the Third World scholars have shown us that this relationship is reproduced in contemporary international law, understanding this we can map this onto the core-periphery distinction and capital accumulation more generally helps us theorise this process in a way that TWAIL scholars avoid. We can also examine different articulations of legal arguments (and their predominant forms) in terms of strategies of accumulation, which are structured by specific imperial relations.

I really can't do the article justice, and I suggest you read it forthwith, not least for its skewering of the Obama dream in international law.

Update

2009-06-19T23:50:00.003+01:00

Hola comrades.

Sorry for the extended silence, but things have been afoot. Although I largely don't talk personal stuff on the blog, I thought I'd give some updates on what I've been doing etc.

I have an article forthcoming in the September issue of the Leiden Journal of International Law entitled 'Marxism, International Law and Political Strategy', which is largely an engagement with China Mieville's work and some (very familiar to readers of this blog) reflections on the role of law in revolutionary strategy.
I'm currently doing a temporary job which has sucked up quite a lot of my time (which is one of the main reasons why I haven't posted that much)
Thankfully the above will come to an end soon because I can confirm that next year I will be doing a PhD at LSE, and so will hopefully have a chunk of free time to write stuff.

There's other stuff too, obviously, but these are some of the more significant (and less revealing things). Fear not though, I'll try and do some posts on an ad hoc basis. These are likely to be pretty short reflections etc., which no one will read but hey - it will keep me vaguely entertained.

Pre-Pre-Terrorism

2009-04-13T17:09:00.002+01:00

Sorry for the lack of substantive posts, they are coming, and I'd also like to comment on the insightful post addressing my terrorism thing very soon. But I just thought this needed to be flagged up:

Police have carried out what is thought to be the biggest pre-emptive raid on environmental campaigners in UK history, arresting 114 people believed to be planning direct action at a coal-fired power station.

The arrests - for conspiracy to commit criminal damage and aggravated trespass - come amid growing concern among campaigners about increased police surveillance and groups being infiltrated by informers.

Interestingly, notice that this was not done under anti-terror legislation, even though I rather think it could have been. This also addresses something I will say in the aforementioned terrorism comments, namely that anti-terror legislation can't be seen too much as a radical break from pre-existing law or some kind of 'creeping fascism'. Ordinary criminal law can and often has been used in such a way as to capture various forms of non-standard political opposition when this is percieved as particularly threatening. Conspiracy law is particularly relevant here as it was historically deployed so as to criminalise the formation of trade unions.

I think this is important to remember because some civil liberties type are insisting on seeing this anti-terrorism stuff as some kind of rupture as opposed to a contingent articulation and (perhaps) an intensification of an already existing trend.

Liberal interventionism at home...

2009-03-25T01:11:00.006Z

Just a tiny post of little worth (more substantive stuff coming soon - I promise; and who could resist a 'principled opportunism'/natural law post, and something on left liberalism/republican freedom), I was just reading this article about the new counter-terrorism stuff (although the Guardian headline is ridiculous, clearly the confrontation with the Muslim Council doesn't overshadow the launch of an anti-terror strategy, it's absolutely integral to it), anyway, this got me thinking about the relationship between the external war on terror and the internal war on terror.

As I've constantly stressed, what I find most important about the war on terror is the way that it gives a select group of states the ability to intervene - seemingly with impunity - in a temporally and spatially unlimited way, seemingly against anyone, but practically against a certain number of target states (whose ranks swell and shrink according to needs). However, as I have also noted there has been a shift in emphasising that a whole range of 'intervention' options are open, quite apart from just military force (although let's not pretend that the war on terror didn't always involve these options becaus it did). The situation is thus created whereby states can 'intervene' (broadly construed) in those states that are in some way 'at risk' of generating terrorism, or harbouring terrorists. This obviously involves constructing some kind of 'model' (e.g. the 'rogue state') which has certain objective characteristics that produce terrorism. In order to prevent this these states have to be transformed, or contained - as such 'liberal' interventionism is a key aspect of the war on terror.

What's interesting is the way that this is reflected in domestic life, especially in the UK. This is seen above all in anti-terror legislation, which increasingly concerns itself not with terrorist acts - but with support, glorification and radicalisation, what I've always found fascinating about the anti-terror laws is the wa in which the definition of terrorism is so ridiculously broad as to potentially cover any number of activities, in this way the potential for unlimited intervention, which we see internationally, is produced internally as well.

But more disturbing is surely all of this counter-terrorism strategy stuff. Because here, it's not concerned with regulating acts (and most of the anti-terror stuff was concerned with acts, even if it is with acts which clearly ought not to be criminalised) but with creating subjects. Counter-terrorism strategies are obsessed with looking at what 'causes' someone to 'become' a terrorist. The aim is to intervene and stop these processes. This is - of course - the perfect complement to the war on terror's liberal interventionism abroad; in both circumstances the intervention can seemingly go unchecked in its quest to create liberal subjects.

This focus is - I think - very important. Because of course the point is that those 'objective characteristics' which produce terrorism (or what we would think of as terrorism) are often the self-same conditions that produce political radicalism. When this is combined with the broad sweep definitions of anti-terrorism, the state can quite legitimately police the radical left under the aegis of anti-terrorism, indeed, as Alberto Toscano has astutely noted a propos the Tarnac Nine, any radical political activism can be portrayed as a type of 'pre-terrorism'.

This is obviously why we also need to question the declared purpose of anti-terror legislation. Internationally, I would argue that one of the driving forces behind the war on terror has been the decline in the imperial power of the US and its attempt to legally entrench a hegemonic coalition. Might anti-terror legislation 'at home' serve a similar function insofar as it legitimates a vast extension of state power into social and political life. Furthermore, is it not telling that anti-terror legislation has found its greatest use not against terrorists, but against left critics of the government in times when its legitimacy is in crisis.

Of course, this doesn't mean the argument is in bad faith. Perhaps (and indeed this seems probable) from the perspective of liberal-democratic capitalism anyone who opposes in a radical way this state of affairs is - at the very least - a potential terrorist. This in fact seems to be the message that underlies a whole host of legislation, action plans, school sylabuses and in fact the entire 'citizenship' course (which school children have shoved down their throats).

Speaking of socio-economic rights...

2009-03-24T00:10:00.003Z

...and their uselessness, this caught my eye:

Straw's green paper makes clear that while a bill of rights would extend the coverage of the Human Rights Act to social and economic rights, such as free healthcare, it would stop short of making them newly legally enforceable in the courts.

Instead Straw hopes that by bringing together existing social and economic rights "currently scattered across the UK's legal and political landscape" in one collected document he will be able to "entrench progressive values for the long term".

Heh. I've spoke about Straw before (indeed on this very issue) and the man has a knack for appearing to say/do something whilst actually saying/doing nothing at all.

I think the big question is can there be a politics of 'rights' that represents a permanent, collective intervention of the oppressed into the political scence. And would such a politics of rights not represent a transcendence of rights as we know them?

Rights and indeterminacy, supplementary thoughts

2009-03-17T11:01:00.003Z

One thing lurking in the post below (although I think I mostly avoided this actually) is the underestimation of indeterminacy. This – I think – is another area where Harvey’s argument is problematic, and misses out on some of the ‘formal’ issues with rights-talk. Basically, Harvey notes that not very many of our present rights challenge the liberal consensus, but that a right to the city could be a radical one.

Now, there was a time when I agreed with this position. I thought that by their nature liberal (political and civil) rights would be compatible with the liberal order in a way that some socio-economic rights might not be. I form this opinion upon reading an old but interesting article in New Left Review called ‘A Statutory Right to Work’. This article argued that the right to work should be incorporated into law, but in my way of thinking such a right would – in order to be effective – necessarily have to go beyond the rights framework and challenge the foundational assumptions of the capitalist economy.

But thinking about it, there’s no reason why liberal rights can’t just as easily do this. So take – for instance – the right to life (obviously I’m not saying life is a value only cherished by liberals, but that it is one of a set of quintessentially liberal ‘bare’ rights). Typically this right is seen as saying that the state cannot arbitrarily, directly take someone’s life. But it could easily pushed. Firstly, it could be used to problematise the concept of ‘action’. So sure, the state can’t take actions that deprive people of their lives, but here the action might be inadequate provision of medicines/foods/hospitals etc. By moving to a more complex model of action, which embraces different notions of responsibility the whole neo-liberal order could be thrown into question, since the only way for the state to stop taking people’s lives is to give people substantial control over the state and to rethink production altogether. This is not to mention that there could be a more explicit shift to a positive right, or the ‘quality of life’ arguments that could be made (and I’m pretty sure somewhere there have been UK cases about whether the UK can deport illegal immigrants with HIV to places where HIV treatment is inadequate). But by and large this doesn’t happen.

Similarly, even something like the right to ‘property’ could be pushed. By insisting on a robust concept of property – and perhaps expanding it more general (as in the ECHR) to include the right to a home life, much of the process of accumulation by dispossession could be resisted. I think this is especially important when we think of indigenous populations and the ‘commons’ more generally. Presumably, there could be some vision of property which views the ‘commons’ as in some sense the property of the community, and as such protected against enclosure. Again such interpretations have not been forthcoming.

This also makes me think of Susan Marks’ pioneering work on democracy in The Riddle of All Constitutions. Here, she argues that the right to democracy should be taken seriously, but that to do this we have to critique it from the inside, transforming it into a better right, which might fundamentally remould society.

But this of course raises the question – if any rights can utilised in such a transformative way why haven’t they? And this is quite important. Because the point is that no right is inherently transformative, and even the most solidly, boringly bourgeois liberal rights could be read in such a way as to become positively revolutionary (hence Bob Fine’s observation that communism will be the ‘limitless extension of right’). But whilst this might be a good thing for progressives, it also shows us that even a seemingly revolutionary right might be appropriated.

Of course, one might take the route Marks’ takes here. She basically argues that this type of indeterminacy is a good thing, because it lets us take advantage of the law and mount immanent critiques, to the effect that bourgeois society is not living up to its own standard. I can agree with Marks part of the way here, that the content of the law is pretty contestable. But I disagree with the idea that indeterminacy makes anything possible. My feeling is that Pashukanis’ insights as to the legal form – and its connections to capitalism – show us exactly why it is that even radical rights ultimately seem to slip in seamlessly with liberalism. This means ideology critique, whilst it may advance the interests of the oppressed, only ever remains within the liberal-capitalist framework (even if it is a social-democratic liberal capitalism), unless it is used to transcend not just a particular instance of legal ideology but law itself. This, I think, is what Harvey and Bowring can be read as being ‘up to’, in their most radical sense, rights can be used as a way to abolish the existing order itself. But I do think this means going beyond the law and admitting that this use of rights is extremely dangerous (because it carries with it all the possible problems of the legal form).

Some sketchy stuff on socio-economic rights etc.

2009-03-17T02:36:00.003Z

David Harvey has been putting out some really interesting stuff as of late (indeed I think he’s always put out very interesting stuff, so perhaps I mean it has been coming onto my ‘radar’ more recently). Obviously a lot of it doesn’t address law in particularly great depth, but I recently read his ‘The Right to the City’[1], which prompted to me to think about human rights and in particular socio-economic rights. Although the article concerns a lot of issues – capitalism, accumulation, urbanisation etc. I want to focus on the way in which Harvey articulates into the framework of human rights. Harvey’s begins by noting that:

We live in an era when ideals of human rights have moved centre stage both politically and ethically. A great deal of energy is expounded in promoting their significance for the construction of a better world. But for the most part the concepts circulating do not fundamentally challenge hegemonic liberal and neoliberal market logics, or the dominant modes of legality and state action. We live, after all, in a world in which the rights of private property and the profit rate trump all other notions of rights.
p.23

It’s difficult to sum up all the complex argument he makes, but the crux of it is that urbanisation has historically been a way of solving the problem of surplus-capital and unemployment. Furthermore, it has historically been used and continues to be used as a way to pacify and undermine working class radicalism. The processes of urbanisation are always characterised by dispossession, whereby urban dwellers are forced out – through financial or physical coercion – to make way for capitalist development. In advanced capitalism this process has been characterised by a blurring of the urban and the rural, with such struggles assuming central political importance. Thus, one of the major battles of the period will be over the ‘right to the city’, which – concretely – means the battle over who controls the production and utilisation of the surplus which drives urban development:

The right to the city, as it is now constituted, is too narrowly confined, restricted in most cases to a small political and economic elite who are in a position to shape cities more and more after their own desires.
p.38

As against this, it is necessary to assert the democratic right to the city, insisting on broad, popular participation in the control of this surplus. For Harvey this means that such a right would go beyond the stale liberal deployment of human rights since:

The question of what kind of city we want cannot be divorced from that of what kind of social ties, relationship to nature, lifestyles, technologies and aesthetic values we desire. The right to the city is far more than the individual liberty to access urban resources: it is a right to change ourselves by changing the city. It is, moreover, a common rather than an individual right since this transformation inevitably depends upon the exercise of a collective power to reshape the processes of urbanization. The freedom to make and remake our cities and ourselves is, I want to argue, one of the most precious yet most neglected of our human rights.
p.23

In a way, this argument reflects the more general line of argument that radical defenders of human rights deploy with respect to socio-economic rights. The basic argument usually amounts to the idea that by virtue of their character and scope socio-economic rights necessarily go beyond bland liberal rights – this is because they concern issues which simply cannot be dealt with as individual ‘property’. But I think this position in general – and I think it works with Harvey in particular – fails to account for indeterminacy in the law, and the way that even radical seeming rights can be co-opted once articulated through the law.

So firstly, I object to the idea that such rights are necessarily ‘collective’ rights. The law has an armament of procedures and processes designed to transform seemingly collective rights into individual ones. The first point to note is that even if a right is a collective one, it can easily be argued (and frequently is argued) that a given collective right is only instantiated through the distribution of rights to individuals. Thus, it is frequently argued that the collective right to self-determination is composed of individual minority rights as well as individual democratic rights.

In this case one assumes that this would need to be achieved through the proceduralisation of rights. Thus, it can be argued that the ‘right to the city’ entails certain individual rights to housing (e.g. protection against forcible eviction) and certain individual democratic rights (e.g. the right to vote for a mayor, who has some substantial control over the disposition of property). This proceduralisation might well mean that some individuals are better off, however, it is unable to get at the broader structural causes of dispossession etc. and so cannot affect the causes of this problem. As a result of this, the individual right itself might lose efficacy. It is useful here to look at Marius Pieterse’s fabulous ‘three act play’[2] on socio-economic rights (apologies for the massive quote):

ACT 1: On the Streets
Member/Citizen: I am hungry.
State/Society: (Silence)...
Member/Citizen: I want food!
State/Society: (Dismissive) You can’t have any.
Member/Citizen: Why?
State/Society: You have no right to food.
Member/Citizen: (After some reflection) I want the right to food!78
State/Society: That would be impossible. It will threaten the legitimacy of the constitutional order if we grant rights to social goods. Rights may only impose negative obligations upon us. We cannot trust courts to enforce a right to food due to their limited capacity, their lack of technical expertise, the separation of powers, the counter-majoritarian dilemma, the polycentric consequences of enforcing a positive right, blah blah blah…
Member/Citizen: (Louder) I want the right to food!!
State/Society: (After some reflection) All right, if you insist. It is hereby declared that everyone has the right to have access to sufficient food and water and that the State must adopt reasonable measures, within its available resources, to progressively realize this right.
Member/Citizen: Yeah! I win, I win!
State/Society: Of course you do.

ACT 2: In Court
Member/Citizen: I want food, your honor.
State/Society (Defendant): That would be impossible, your honor. We simply do not have the resources to feed her. There are many others who compete for the same social good and we cannot favor them above her. If you order us to feed her you are infringing the separation of powers by dictating to us what our priorities should be. We have the democratic mandate to determine the pace of socioeconomic upliftment, and currently our priorities lie elsewhere.
Member/Citizen: (Triumphantly) But I have the right to food!
State/Society (Court): Member/Citizen is right. It is hereby declared that the State has acted unreasonably by not taking adequately flexible and inclusive measures to ensure that everyone has access to sufficient food.
Member/Citizen: Yeah! I win, I win.
Everyone: Of course you do.

ACT 3: Back on the Streets
Member/Citizen: I am hungry.
State/Society: (Silence) . . .
Member/Citizen: I want food!
State/Society: We have already given you what you wanted. You have won, remember? Now please go away. There is nothing more that we can do.
Member/Citizen: But I am hungry!
State/Society: Shut up.
(Member/Citizen mutely attempts to swallow the judgment in her favor.)
p.816/7

The ‘play’ also flags up another way in which the ‘right to the city’ might be divested of its power. Here, although the right may be ‘collective’ it is largely powerless. Here, it is useful to turn to Inga Markovits work on ‘bourgeois’ and ‘socialist’ law.[3] Markovits argues that bourgeois law is primarily characterised ‘[a]s individual entitlements’ which ‘confer autonomy in a limited area’ (p.614). This is counterposed with ‘socialist rights’ which, are not individual trumps but:

[P]olicy declarations. Instead of protecting individual autonomy, they set public standards for desirable goals and behavior. Socialist rights are thus not weapons (which would imply potential hostility between the individual and society) but rather like railroad tickets: they entitle the holder only to travel in the indicated direction. The enforceability of a right is always dependent upon its underlying policy justification.
p.614

Now here, the right is clearly ‘collective’ but it can – although not necessarily – become rather ineffective.

The alternative posed here – between a perhaps effective but ultimately stymied individual right and a collective, but easily deflected collective right is not the only set of possibilities. But I think we have to acknowledge the fact that historically this has been just about the limit of rights discourse.

This being said, there is perhaps scope for certain radical ‘rights’. The right to the city could be one of these insofar as if we take it seriously it can read as implying a continuous collective intervention in social life. But crucially, I think this model goes far beyond what we would typically think of as rights. Clearly Harvey’s vision of such a right is not one which can be actualised in the law’s typical setting for actualisation – the court. This is because the social transformation required to create the right to the city simply could not be subject to legal remedies (what would the remedy be to such a violation – the judge hereby orders the establishment of a London Soviet?). So, in this sense, the elaboration and articulation of this right can only be seen in the light of the struggle of social movements. The right can only be meaningful when it animates and is animated by the struggle of the oppressed. Here there are obvious parallels with Bill Bowring’s work.[4]

But I think the question then becomes well why use human rights discourse at all. Harvey’s argument is clearly that human rights discourse has attained an important position in contemporary society, and as such should be taken advantage of. And here we return to a familiar theme in my blog. The contingency with which Harvey treats the negative effects of human rights and their legality is quite telling. Thus, his account foregrounds the fact that ‘[w]e live … in a world in which the rights of private property and the profit rate trump all other notions of rights’ (p.23). Here, the problem of human rights is seen as one of iniquitous content as opposed to form. This ignores, however, the pressures that the rights form exerts on any – even revolutionary content – pushing it towards those two alternatives I outlined above. The pressures of the rights-form – pushing towards individualism and abstraction – can obviously be combated – but I’m not sure that the benefits of rights rhetoric outweigh the costs (not to mention the broader problems of legitimating the entire structure of Law’s Empire).

Notes
[1] David Harvey, ‘The Right to the City’ (2008) 53 New Left Review 23
[2] Marius Pieterse, ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29 Human Rights Quarterly 796
[3] Inga Markovits, ‘Socialist Rights vs. Bourgeois Rights: An East-West German Comparison’ (1978) 45 The University of Chicago Law Review 612
[4] Bill Bowring, The Degradation of the International Legal Order? (2008) Routledge

Tigar and Mage on the Reichstag Fire

2009-03-10T11:09:00.002Z

Just read a great little article in Monthly Review by Michael Tigar (who is great, but hasn’t written all that much since Law and the Rise of Capitalism and [as can be seen from the comments] has written a lot more than I realised!) and John Mage, on law and Nazi Germany. They note:

While no sensible case can be made that gives any primary causal responsibility to the legal establishment, yet it is very clear that it (or if you prefer “the Law”) presented not the slightest obstacle. Nonetheless the German legal establishment was not irrelevant, it had a secondary but not unimportant role in the debacle. For the Nazis to lead the German nation into a war of aggression and into genocide required their hegemony, the tacit acceptance of the legitimacy of their acts—and of the dutiful observance to their demands—as the lawful rulers of the German state, even by many of those German citizens who disagreed with their policies. Resistance to the Nazis, however, required the quickest possible global recognition of their crimes and the threat they represented to all decent people in the entire world. For one moment in the early days of Nazi rule in Germany a public trial presented a focus in which the German courts provided the Nazis an opportunity to further their hegemony, and the potential to the global resistance of an opportunity to expose the Nazi crimes—the Reichstag Fire trial.

The article examines how the events surrounding the Reichstag Fire were framed by three separate judicial bodies – the pre-trial German hearings; the actual trial and an international commission put together by activists to evaluate the trial. Tigar and Mage constantly emphasise that:

The Nazi leaders and the Bulgarian defendants agreed on one point: This was a political trial. Any effective defense had to acknowledge this fact and confront the reality of Nazi power and influence. Dimitrov’s tactics, from the first witness until the last words of argument at the end, were based on knowing this truth.

The masterful performance of Dimitrov is very instructive:

After Goering’s statement, Dimitrov cross-examined. He peppered Goering with questions. He put questions designed to show that Goering’s accusations of Communist complicity were made after a cursory and flawed investigation. Goering’s anger mounted. He said he was “only concerned with the Communist Party of Germany and with the foreign Communist crooks who come here to set the Reichstag on fire.” The audience cheered. Dimitrov replied, “Yes, of course, bravo, bravo, bravo! They have the right to fight against the Communist Party, but the Communist Party of Germany has the right to go underground and to fight against your government; and how we fight back is a matter of our respective forces and not a matter of law.” Judge Buenger interjected: “Dimitrov, I will not have you making Communist propaganda here.” To which Dimitrov replied that Goering was making National Socialist propaganda. The exchange continued:

Goering: Look here, I will tell you what the German people know. They know you are behaving in a disgraceful fashion....I did not come here to be accused by you.
Dimitrov: You are a witness.
Goering: In my eyes you are nothing but a scoundrel, a crook who belongs on the gallows.
Dimitrov: Very well, I am most satisfied.

At this point, Judge Buenger cut Dimitrov off, again accusing him of making propaganda, while not rebuking Goering at all. Dimitrov tried to put more questions, but the judge ordered him to sit down. Dimitrov had one last shot: “You are greatly afraid of my questions, are you not, Herr Minister?” Goering’s anger rose. He replied, “You will be afraid when I catch you. You wait until I get you out of the power of this Court, you crook!” The judge, ever dutiful, said, “Dimitrov is expelled for three days. Out with him!”

The moment is without parallel, the witness credibly threatening to murder the accused. And the effect of Dimitrov’s cross-examination of Goering, in the court and around the world, was electrifying. The next day the Swiss conservative paper Neue Zürcher Zeitung described Goering’s “mad foolhardy rage” and concluded that “the whole trial has been rendered worthless at one blow.”

But the trial takes on particular political significance after the fall of the Nazis. Whilst all the ‘facts’ would seem to suggest that the Nazis themselves were heavily implicated in the fire and legal system (which refused to consider this possibility) was closely involved with Nazism to admit such would be politically inconvenient. This was because – as the RAF always insisted – the West German state was staffed by a bunch of Nazis and the legal system was a particularly bad offender:

The exposure of the omnipresence of those who had been Nazis in the West German state apparatus required a response. The facts of personal biography could not be denied; at most it was possible to obscure them. A major effort was made to exaggerate the minimal conservative opposition to the Nazis, and especially the belated July 1944 conspiracy among a handful of officers that led to an unsuccessful attempt on Hitler’s life. But even with the utmost exaggeration, very few could be claimed to have had any connection, however remote, with these isolated affairs.

The great bulk of German opposition to the Nazis had been from leftists, and it was in the government of the communist East German state—the German Democratic Republic—that it was easy to find those who had fought the fascists arms in hand, and those who truly had been opponents of the Nazis. A more promising alternative was to exculpate the Nazis—who after all had been staunch anticommunists—and in particular the Nazi legal system. A further, and more material, concern was the presence of substantial claims from Jewish victims of the Nazis, demanding restitution of property they had lost (of course always in accordance with legal process of some sort) in the first years after Hitler came to power.

A solution was to assert that the German legal system had continued to function—of course unfortunately deprived of the services of its Jewish judges—with unimpaired validity, at least (as regards the Jewish claimants) until Chancellor Adenauer’s chief of staff Globke’s Nuremberg Laws came into effect, several years after the Nazis came to power. A revision of the history of the Reichstag Fire trial would well serve as the basis for this attempt to rehabilitate the Nazi legal system; after all most of the defendants were acquitted, and the court had exculpated the Nazis from having set fire to the Reichstag.

In pointing out the Nazi usage of the legal system the article does two useful things. Firstly, it shows us the political stakes of the law and the way in which politics is actualised through law. Secondly, as to the particular character of these stakes, let us note that the Nazis did not simply ‘abolish’ the law; they cannot simply be seen as in some sense being lawless. While there are legitimate questions about the nature of law at some points in Nazi Germany (and whether this indeed was law) it is clear that law and legal processes were – at least at the beginning utilised by the Nazis. More to the point, the living embodiment of law and legal values were seemingly no more resistant to Nazism than anyone else:

Today, facing a new regime of preventive detention and emergency “Patriot Act” abolition of fundamental rights, it is important not to think that “the Law” as such offers protection. We must offer such support as we can to those lawyers and jurists whose politics and decency have made them take a stand against our own emerging police state regimes.

The article also brings into relief the ways in which the law is a way of contesting the reality of particular events. Indeed, should the legal struggle be successful then the political ‘truth’ of one party is given material force. As Bill Bowring notes (The Degradation of the International Legal Order, 2008, Routledge-Cavendish) of the Chechen struggle against the Russian state:

[W]hat is most important for them and their communities is that the truth has, albeit several years later, at last been told, authoritatively and at the highest level, as to the tragedies which befell them and their families, and the responsibility of the state. This is not simply a question of competing narratives. Instead, on my arguments in this book, such applications are the means by which the rights declared in the darkest hour of French Revolution are re-invested with revolutionary content. It is not that the Chechens’ struggle is legitimised by virtue of the rhetoric or the [204] meagre individual remedies on offer in Strasbourg. On the contrary, the daring use made by the Chechen applicants is the means by which the dead rhetoric of government pronouncements or of worthy NGOs is transformed – transmuted – into words and ideas which have material force. It is possible to say that as a result of winning these cases, the relation of forces in Russia as a whole has been realigned, towards the survivors.’
p.205

Legislative attack

2009-03-10T01:54:00.002Z

China Miéville has again pointed me towards an interesting article that I think is well worth flagging up. The whole article is worth reading in full, but I thought I’d quote some interesting stuff from it:

Military experts in law describe attempts to limit the death of bystanders as a pragmatic compromise that seeks to establish the supposedly "correct" relation between a necessary attack on militant targets and the number of civilians killed. The question is what is necessary, what ratio is correct, who is to decide that and who is to judge that. Although the claim that having laws of war is a good thing can still be accepted, it is necessary to be alert to the structural paradox they pose: for when they prohibit some things, they authorise others, and it is the border between the allowed and the forbidden that is the most intense legal battlefield.

International law can be thought of not as a static body of rules but rather as an endless series of conflicts over this border. The question is not which interpretation is right, but who has the power to force their interpretation into becoming authoritative. In this sense, international law does not merely legitimate violence but actually relies on it.

What is think is quite interesting is the notion that the law of war ‘authorises’ some things. I feel like there could be something very interested in this way, particularly when we look at how the idea of the ‘civilian’ is constructed through international legal regimes. Equally, the way in which international law ascribes ‘value’ to civilian life – by counterposing it to some other objective – is interesting. This is worrisome precisely because of the indeterminacy of the law; if the construction of the ‘civilian’ (and his ‘worth’) is always a legal act, it will always be one which is capable of challenge and as such subject to change. In this way, things we might think of as ordinarily civilian can be rendered the legitimate object of intervention. Although Weizman doesn’t have the legal issues exactly right, I think the argument as regards ‘warnings’ is quite productive:

The ability to communicate a warning during a battle is technologically complicated. Battle-spaces are messy, violent and confusing environments. Communicating a "warning" can save a life; but it can also in principle have the advantage of rendering "legitimate" targets whose destruction would have been otherwise in contravention of the law. There can thus be a direct relationship between the proliferation of warning and the proliferation of destruction.

The way that law interpellates individuals on the battlefield could clearly be a very interesting area for further examination. Indeed, I think the general tenor of this fits quite nicely with Pashukanis' attention to subject-formation. The impact of legal categories on media and political language would also be interesting to look at here, particularly the relationship between interpellation and responsibility (e.g. civilians in Gaza are interpellated as potentially legitimate targets by virtue of the particular organisation of Hamas and concomitantly with this - using some of the arguments in the Geneva Convention - responsibility for these deaths is shifted onto Hamas, who are using civilians as 'human shields' etc.).

The Gaza stuff is very telling , and in general the way that international law interpellates all of a subject people as enemies really could be explored further. It would be very useful to map out the practical result of legal language in this area - e.g. when Hamas attacks using its 'indiscriminate' weaponry any non-military personnel killed merit condemnation; when Israel attacks with its 'precision' weaponry, into an area where they are unsure of the exact difference between civilian and Hamas personnel people are interpellated as collateral damage.

Ultimately though, Weizman’s conclusion is a familiar one:

The logic of this realisation may be the need for those concerned with the interests and rights of people affected by war to employ a double, even paradoxical strategy: one that uses international humanitarian law, while highlighting the dangers implied in it and challenging its truth claims and thus also the basis of its authority. In any event, international law should not be the only language of protest and resistance to Israeli violence. The attack on Gaza should be opposed not because it is "illegal", but because it serves the logic of Israeli control of Palestinians.

This I think is right. But we shouldn’t necessarily sacrifice international law’s use as a weapon. Whilst I agree we shouldn’t use IL as our only – or frankly main – language of protest (although not just for reasons of indeterminacy, just because something is contestable doesn’t mean it’s unusable, this is also to do with the particular character of legal argument and its structural affinity for imperial assertions) we obviously can’t abandon international law. So even as we admit international law’s complicity in imperial processes we need to find a way – in certain for a – of forwarding an interpretation that favours the interests of ‘our’ people.

Critical legal theory and cognitive dissonance

2009-03-06T22:36:00.003Z

Sorry I haven’t updated in a while, but I really feel like I’ve been struck by the curse of bloggers’ block – I literally just couldn’t think of anything interesting to say. I’ve also been trying to read through Arendt’s the Human Condition, which although good, is one of those books that contains an important(ish) observation on every page, and so has to be read fairly closely.

But anyway, I was perusing my RSS feeds when I stumbled upon this. To my horror, as soon as I clicked on the link (and before I even read it) I was going through in my head all of the – I think – legally acceptable arguments Israel could use to justify its assault on Gaza. I then thought about it and realised I’d been doing this a hell of a lot recently. The reason this comes about is obviously for two reasons (both of which come from being a ‘critical legal theorist' – can I count myself as one of those yet?) – firstly, I subscribe to (and defend) the indeterminacy thesis and secondly, I argue that – to some degree – imperial interests are structurally embedded in international law.

Contra this position, there are those who argue that when certain imperialist actions are ‘illegal’ and/or that any legal argument deployed in defence of these actions is just a ‘legal smokescreen’ etc. In order to defend my position against such people I am forced to go through the legal justifications for what I consider barbarous actions, and since my focus has recently been on us ‘taking law seriously’ as an important and ever-present factor in imperial action whenever I see one of these actions I left justifying it in my own head.

But why am I horrified? Surely if I think that legality is – at least in the last instance – rooted in relationships of exploitation and domination and frequently expresses such relations directly in its content I shouldn’t mind that I’m accepting legal justifications for imperial action?

On the one hand, perhaps my reaction shows something of the pervasive power of the legal form in bourgeois society. Thus, even though I rationally ‘know’ that invoking legal arguments to ‘justify’ an act is not necessary endorsing said act. Even though I ‘know’ that the progressive content of a law is always contingent, whereas the form of law is necessarily related to a system of social relations of which I disapprove (obviously too weak a word), I still ‘feel’ the power of the words ‘legal’ and ‘illegal’. In the General Theory Pashukanis says some very suggest (and then remain suggestive, because they are very under-theorised) stuff about the relationship between law, morality, commodity production and (I would infer) personality more generally:

People must relate to each other as independent and equal personalities in order for the products of human labour to be related to each other as values … 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.
p.101

On this basis he concludes that ‘the concept of the moral or equal personality is an ideological formation’ (p.102) generated by relationships of commodity production. This can be quite nicely connection with Althusserian notions of interpellation, whereby the function of ideology is to interpellate individuals as subjects; thus law interpellates subjects as rights-holders and concomitantly as citizens, as equal personalities. This close link between equal personality, commodity exchange and the law manifest itself as a particular attitude towards the law. Whilst we may not know the particular contents of the law, the link between subjectivity and the legal form manifests itself as a particular degree of respect towards the general categories of legal and illegal (which are of course particular contents), as Kinsey (1978) (who I wish everyone would read) puts it:

As such it is necessary not to conflate morality and legality. As we have seen the individual, in practice, need have no knowledge of the specific legal norms which regulate his social activity. Indeed the “ordinary” man cannot know the law in all its detail for then he would be no ordinary man at all but a “lawyer”. On the other hand however the law must know the ordinary man and the conditions of his (moral) existence. The law constitutes the ordinary man in the abstract as the “reasonable man”, the “man on the Clapham omnibus”. It is in that sense that the law and juridical/positive morality together specify historically the mode in which the juridical relation is realised in a particular social formation.
p.219

We are always and already subjects constituted – at least in part – by the legal form. As such, perhaps my uneasiness stems from the fact that – notwithstanding my intellectual/theoretical analysis of the legal form – I am still a subject caught up in and constituted by ideology.

Of course, there’s another possibility, linked to the above. Perhaps I have exaggerated the pervasiveness of legality (I don’t think I have). As a subject I haven’t just been formed by general social processes, I’m also a product of an Anglo-American legal education. Again, there are some very interesting things that can be said about the ideological process bound up in legal education. Again what is important here is not necessarily the ‘learning’ of a particular number of norms (the content of the law). What is important instead is the manner in which the law is imparted, the ‘character’ of studies. Some useful observations here can be found on Simmonds (1985) take on Pashukanis’ take on the relationship between legal theory and the legal form:

[I]t is possible to argue that juridical theories are actually produced by the law itself. It might be possible to have a society where rules were established and obeyed for reasons of convenience, changed in an ad hoc manner when seemed desirable, and regarded generally as tools of exclusively utilitarian significance. Such a society would not possess a legal system of the type which interests Pashukanis, or of the type of which we are familiar. The legal order of a liberal, or bourgeois, society is thought of as a more or less consistent and coherent body of rights. Even if the law is thought of in terms of rules, the rules are assumed to be coherent. Contradictions between valid rules are regarded as impossible in principle, and a major task of juristic activity is the dissolution of any apparent contradictions … [I]t can be argued that the notion of the subject as an immobile bearer of rights is itself linked to the presupposition of consistency and coherence within the law … Bourgeois law contains within itself … a continuing pressure for increased coherence … This pressure for increased coherence means that bourgeois law produces juristic theory as fire produces smoke. The search for coherence and consistency at some point reaches a level of abstraction where the enterprise comes to be regarded as “legal theory” rather than “legal doctrine”.
p.137

Not sure I needed to use the whole quote, but I quite like the idea that legal theory is produced by the legal form. I’d want to extent this, the idea of law as a systematic, seamless enterprise is produced in legal education (and it is rather hard to disrupt), even as legal practice seems to contradict this assumption. More than this, one thing we always got told about our legal education was that it was not just concerned with us learning rules, but that we were being taught to ‘think like lawyers’ – this terrifying abstraction perhaps does something to explain my instinctive attraction to ‘legality’ (as Simmonds points out this concern with abstraction helps us see the link between law and liberalism and I think law school produces liberal of a certain-type).

Finally, and this is the explanation I prefer (since it makes me ‘above’ ideology), perhaps my problem is that even if I am relatively unaffected by this legal-fetishism, I am aware that other people aren’t. So, whilst I may be perfectly comfortable with my equation of the legal form and capitalism and on the contingency of progressive nature of legal argument, I know that in characterising something as ‘legal’ or at least justified by convincing legal arguments (which for me are the same thing) this will carry sufficient legitimating power with most people that I am – in some sense – contributing to the legitimation of actions I oppose. Moreover, I am potentially cutting myself off from a fruitful method of opposing such action.

So, what to do with this? At this point I think it’s quite useful to Susan Marks’ (2007) review of Between Equal Rights. In 2003 Marks participated in a collective letter to the Guardian which criticised the Iraq war as ‘illegal’, in Between Equal Rights China Miéville criticised this letter, noting that it seemed to repudiate the idea of indeterminacy and made it difficult to criticise actions which fell firmly within international law. Indeed, as Marks herself notes, it made it particularly difficult to ‘shift gears’ and turn back to the critique of international law. Marks prefers to think of this as:

[A] communicative challenge. 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?
p.209

So, one way of avoiding the cognitive dissonance I have evinced is to say that indeterminacy is not a property of legal argument, but an argumentative strategy. I just don’t thinks this works though. I guess what I think is that indeterminacy … well … is a property of legal argument. Something is either indeterminate, or it isn’t, there isn’t really a point between. Even if indeterminacy was just a strategy, unless there was some kind of certain criteria that could demarcate when it was legitimate to use this strategy, then international law would still be indeterminate (because the question of when law is indeterminate is itself indeterminate). Indeed, I just think that an anti-formalist formalism (which is all I can really think what this might be), has to be an argument made consciously in bad faith. Now, I can see what in some situations it might be ok to do this, but I think it has to be discussed explicitly.

As some of you will know my solution as to how we grapple with the law is ‘principled opportunism’. Basically, I think that the form of law is rooted in an exploitative social relationship (generalised commodity exchange) and domination and shapes contents that are articulated through it – making it difficult to focus on structural and systemic causes and as such curtailing the transformative potential of legal argument. Furthermore, legalism generally tends to break up collective activity. However, I think it’s fairly clear that progressive interests can be expressed through the law.

So, they key to a progressive legal strategy is to work out how to take advantage of the progressive potential of law’s content, without falling foul of its form. Principled opportunism means that when we invoke legality we don’t do it because of its legality (i.e. its form) but because it advances interests we support. Indeed we support such initiatives in spite of their legality. How does this look in practice, though? Well, the obvious point to note is that there is a conscious instrumentalism at work here – so take this blacklisting business, I would definitely oppose such developments but not for the sake of an abstract ‘right’ to privacy or to holding a political problem. Hence I don’t have a problem with the publication of the BNP membership records and the consequences thereof (and also why I have no problem with excluding BNP members from unions etc.).

Another point is that legality should never be invoked as an independent variable. So I don’t think we should mobilise people with the slogan ‘these acts are illegal’ unless we are very careful about specifying the limits of talk about illegality. But what we can do is mobilise around e.g. a court case centred on said illegality, for instance when people are arguing that a war is illegal as a defence to damaging property. All this has to be done with a conscious disregard for consistence and coherence and full and frank admission as to the indeterminacy of the law.

So, hopefully in this way we help to lessen the legitimating aspects of the law (which ultimately limits relationships of domination and exploitation) whilst taking advantage of legal opportunities that come our way. So I might say – ‘Israel can argue its case’ – but principled opportunism nonetheless permits me to support taking Israel in front of the ICC (ha!) and hoping for the best.

Of course, in practice this support is not going to be as strong as it possibly could be, but I think that’s the price we have to pay to avoid falling into the trap of fully embracing legality.

[Hmmmm…it’s true that the indeterminacy thesis (or at least versions thereof) says groups pursue their interests through the law, and this need not be a ‘conscious’ process. That’s definitely true, but what I think Pashukanis and Marxist approaches more generally point to is that indeterminacy can’t just produce any outcome. Whilst those committed to capitalism can pursue their interests blindly – because the legal form will ultimately uphold their systemic interests – the same thing can’t be said for anti-capitalists. Here, an awareness of the limits of the legal form has to shape the particular strategic approach needed]

Bibliography
Kinsey, R. ‘Marxism and the Law: Preliminary Analyses,’ (1978) 5 British Journal of Law and Society 202
Marks, S. ‘International Judicial Activism and the Commodity Form Theory of International Law,’ (2007) 18 European Journal of International Law 199
Simmonds, N. ‘Pashukanis and Liberal Jurisprudence.’ (1985) 12 Journal of Law and Society 135

Plus ça change...

2009-02-11T20:38:00.003Z

Unsurprisingly (for me at least, and for others I'm sure), there has been a trickle of stuff in the news noting that Obama may not be quite glorious defender of 'international legality' that we thought he would be. So we've got news that Obama will continue with the extraordinary renditions policy of the Bush administration (sans the 'torture'; also people need to get their terminology straight: 'rendition' or 'ordinary rendition' is taken to refer to transfers regulated by law - e.g. extradition; extraordinary rendition is any extra-judicial transfer and so as such doesn't necessarily involve torture). In a similar vein, we have the news that the Obama adminstration is going to maintain Bush's 'state secrets' policy.

Now, I'll reiterate, this does not surprise me. Firstly, extraordinary rendition was a process that was authorised and used by (at the very least) the Clinton administration, there's a continuity that runs all through from Clinton, to Bush and I suspect to Obama, not to say that there aren't differences but simply that much of the basic 'shape' of the policy is dictated by particular imperial concerns. This links into my second point, I've been quite keen to argue that the legal policies of the Bush administration are very similar to the basic orientation of the Clinton regime (as was spectacularly displayed in Kosovo) basically, I think that - as a response to an obvious decline in hegemonic power for the US - there has been a drive to legally entrench the US' ability the intervene anywhere, at any time 'in the interests of the international community'. The idea that the election of Obama would be able to alter this was always - for me - a bit silly, because I believe that this policy is the reponse to deep-rooted structural problems.

That being said, what initially surprised me was the degree to which Obama has remained within the war on terror paradigm. I was thinking that perhaps we would see a move back towards the old 'humanitarian/liberal interventionism' model because - as Richard Seymour notes - he's got to sell it to his constituency. But on further reflection, I think that Obama's continuation of the 'war on terror' model (which Norm of normblog has gleefully and constantly noted) makes sense in international terms and internal to the US (particularly internal to the US).

So firstly, there is Obama's whole 'post-partisan' thing. The war on terror has significant cross-party appeal in the US. This is linked to the fact that ultimately it strikes me as much easier to defend the war on terror to the American electorate than a policy of liberal interventionism. This is because it is really quite difficult to pitch liberal interventionism as being in people's immediate self-interest (I mean, part of the whole strategy is to defend the idea that such interventions are not self-interested). The trick is to be able to make self-interest coincide - nationally and internationally - with the putatitve interests of the international community. The war on terror is a much easier way of doing this, and earns politicians 'realist' street cred. Internationally, although the war on terror may look like a self-interested power-grab by the US, I still think it holds up as more convincing than a programme of explicit liberal interventionism, especially as it doesn't have so many historical resonances with colonialism. Furthermore, a lot of Obama's base seem to be sold on the idea that post-partisanship requires sacrifice, meaning they are willing to give him an easy ride, telling in this respect is the muted (or non-existent) opposition (and indeed support) of various human rights groups to the retention of extraordinary rendition policy .

Secondly, I've always emphasised that - in terms of form - liberal interventionism and the war on terror are very similar - insofar as both attempt to articulate a legally entrenched hegemonic power. But increasingly, the two are intertwined in terms of substance too, this is particualrly evident with the claim - made a while back by Bush - that liberal, democratic polities are less likely to give rise to terrorism; and the mirror claim of liberal interventionists that liberal interventions stop terrorism (or refugee flows etc.). This being the case, I really do think that much of the difference between the two is really one of emphasis, which is why liberal bombers were able to come on board so quickly (another obvious point is that in the clash of civilisations rhetoric that forms the bedrock of the war on terror, the enemy is seen as illiberal, fundamentalist barbarians).

But, onto my third point, this difference in inflection can be crucial. A few years ago Ryan Goodman wrote an very American political-sciency (but nonetheless good) article on Humanitarian Intervention and Pre-texts for War, in it Goodman suggests that humanitarian intervention is actually a fairly terrible pre-text to go to war, insofar as it creates 'blowback'. Basically, by phrasing the intervention as humanitarian it sets up a certain series of expectations on the part of the population of the intervening states. These are to do with the methods of warfare (hard to say carpet bombing is humanitarian), other justifications (hard to act explicitly in your self-interest) and how you negotiate (you should be aiming as quickly as possible for peace). Goodman argues - fairly convincingly - that humanitarian intervention tends to limit the publically acceptable scope, extent and methods of warfare as compared to - say - war over territory. But such considerations are much more difficult in the case of a war that is addressed against terrorists - indeed precisely because terrorists are non-state actors who live amongst the civilian population the opposite considerations may come into effect - of course schools, hospitals etc. will be blown up but that's the terrorists' fault. So, here, the utility of the war on terror argument is that it maintains the scope of humanitarian intervention, maintains also its transformative aims - liberal deomcracies/western protectorates don't produce terrorists, but totally manages to avoid the restraints that humanitarian intervention might bring into play.

So, I suspect Obama is going to stick with the war on terror. Obviously, it will not be exactly the same, notwithstanding the retention of extraordinary rendition, I expect some of the more overt abuses will be significantly toned down. There's also going to be less posturing on the issue of international law and legal nihilism. I also think that there was something of a civilising influence that humanitarian intervention invoked (however tiny) and the scope of the war on terror is at least as wide as humanitarian intervention (and we need to avoid the idea that the war on terror was ever just about deploying military force).

We really should have seen this coming, since Obama only ever seemed to campaign as being a more sensible manager of the war on terror.

Newey on torture

2009-02-11T19:02:00.003Z

Soz folks, nothing really substantial again, just thought I'd flag up this interesting little piece on torture by Glen Newey in the always invaluable London Review of Books. Particularly relevant to my mind are these passages (emphasis mine):

Sometimes the surgery ran into complications. For instance, Article 2.2 of the Convention against Torture, to which the US is signatory, states: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ By the standards of legal covenants, this seems pretty plain. But the waters muddy when attention turns to the definition of ‘torture’. A reservation entered by the US to the Convention specifies that torture is to be understood as set out in the US Constitution. Sands argues that a second memo signed by Yoo wrongly advised Bush’s counsel Alberto Gonzales that the reservation meant that the US could legally set a higher threshold for physical and mental torture and remain in compliance. But, as Yoo’s memo to Gonzales points out, it’s not clear that any of the provisions of the Vienna Convention (to which, anyway, the US is not party) limiting the scope for treaty parties to enter reservations apply. Sands remarks that the US ‘could not change the international legal obligation’ (his emphasis); but that still leaves room to specify more closely what kinds of act the obligation proscribes.

This I think it absolutely correct, and something that has to be more readily admitted by the anti-Bush brigade. Much of the argument was not that 'torture is ok' in times of crisis etc. A lot of the most sophisticated argument was simply that the acts in question did not meet the relevant threshold of torture. Certainly, a lot of people are coming out of the woodwork at the moment saying 'actually it was torture', but I don't think that negates the fact that at the time the strategy of the Bush administration was simply to say - look, we're allowed to use some methods of interrogation that go further than torture - of course we are.

[And this is a problem that I think international lawyers have to face up to squarely. It seems to me that international law 'forces us' to think like a bourgeois state, insofar as people making legal argument have to accede to 'reasonable' demands such a state might make, like - 'well of course we have a right to defend ourselves' or 'well of course we are allowed to interrogate people' etc. It strikes me that once you step into this particular discursive field everything just becomes a matter of degree, which makes things rather murky. A case in point is - I think - Israel, once we adopt the 'legal' viewpoint we are forced to acknowledge the 'reasonable' demand that Israel must have some recourse against Hamas rockets, once you're in this place you also have to accede to the reasonable demand that this right can't just extend to 'killing the same number of people' and you're already at least entertaining Operation Cast Lead as a possibility. This is the exact same thing that goes on with the war on terror, once you enter international law's discursive field on these issues and you are forced to 'think like a state' it becomes very difficult to resist a good deal of the war on terror's logic.

This is obviously quite badly phrased but I think there could be something to this. Note to self - link this back to Orford's stuff on international law as 'narrative'.]

Sands rues the fact that the law was fitted to the policy. But law is not an organic whole for politicians and bad lawyers to mangle. No doubt the mangling is real enough. But law is a shape-shifting congeries of norms, precedents, opinions, opinions about opinions, claims to authority, and – when reasoning fails to deliver a decisive outcome – power-broking, for example by vote, as in the Supreme Court’s verdict on Hamdan.

In other words, it’s all a bit like politics. Faith in the ‘majesty’ of the law as transcending or trumping the grubbiness of politics looks like what it is: a reversion to charismatic authority. That is why those, like Ronald Dworkin, who like to supplement or supplant democracy with judicial decisionism, think that there must always be a ‘right answer’ to questions of law. The right answer turns out to mean identifying the rights that right-thinking judges think we should have.

Firstly, one is tempted (and Newey may already be saying this) to push the last sentence a bit further. Because when he says 'right-thinking' judges this can surely only refer to 'judges that share my views', as Schmitt noted all those years ago, the apparent recourse to judicial decisionism is always always just a displacement of the political. So actually, I don't think we're dealing with - and indeed we cannot be dealing with - a simple reversion to charismatic authority, even Dworkin has judges who he doesn't like (especially as he's from the US) Indeed, to my mind, anyone that reads Dworkin cannot help but notice that he really, really sounds like a liberal-Schmittian (I know the term sounds like a contradiction in terms, but read him and you'll see what I mean), simply putting a happy gloss on Schmittian decisionism.

Secondly, I think the whole 'fact that the law was fitted to the policy' is something that has to be examined further. Ultimately, I think, as does Newey, that if the law is indeterminate - or at least under-determinate enough that there can plausibly be a number of 'right answers' - what else do political actors do except shape the law around their policies. That being said, it's not necessarily the conscious, cynical manipulation that this might imply (although this obviously happens too) I often suspect that the legal justification advanced is 'naturally' the one that fits. This could also - I think - be linked to the 'state perspective' that international law provides; international lawyers are naturally pre-disposed towards thinking 'reasonable' interpretations are those which reflect state interests. There's also the third - empirical - consideration to make, from what I can see this is the standard procedure for states: they have a problem and they ask their legal advisors to evaluate its legality, with this there is going to be explicit and implicit pressure to 'make the case' (and this may be the way the question is put) for the policy.

I think this deserves more, but my mind has kind of turned to mush. But I will close by talking about some of the interesting observations of others. Firstly, Scott Newton, at the thing in Glasgow (who has a wonderful turn of phrase) described the legal form as constituted of subjects who are 'operated' by social actors in a strategic context. Secondly, China Miéville on recognition (in Between Equal Rights, 2005: Brill):

Of course to claim, based on this political understanding of recognition, that such recognition is illegitimate, is to stick to the implausible theory of international law as a body of rules. If it is instead understood as a process, then such politically informed manipulation and creation of legal facts is precisely the constitutive fabric of international law itself. Recognition, in this case, might be criticised as imperialist, immoral, stupid, or many other things, but it is nonsensical to criticise it as illegal.
p.236

If international law is a constitutive part of the political process (if indeed we are to take international law seriously) then it is no surprise to see that political argument is expressed in legal terms and that international law is intimately interconnected with international politics.

Duncan Kennedy on Gaza

2009-02-04T17:47:00.004Z

Sorry, no substantive content once again (some small stuff is coming, but I've been caught up in doing a few other things too), but just wanted to flag up CLS supremo Duncan Kennedy's take on the Israel assault on Gaza (which I was sent via Akbar Rasulov), much of it is the standard - but necessary - analysis of the historical context. But there are some very interesting passages to quote:

Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.

Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.

It's very important to understand that much of what Israel does is motivated by the classic colonial problematic - 'what the hell do we do with the natives!' (but with some very modern twists). Indeed this really has to be emphasised more, because it helps frame the actions structurally, and is frankly more convincing than reducing everything to individual 'electoral moves'.

I think the second paragraph is absolutely right - and something that the left really has to emphasise. Although there may well have been Israeli war crimes, the greatest 'crime' of all - this particular assault and the attendant loss of life, but also Israel's long history of oppressing the Palestinians - is effaced by the highly specific focus on certain actions and events (I know I keep banging on about this). Indeed, without even going back to the wider context, the initial assault - and the massacres it occasioned - can quite plausibly be argued to be legal.

[As an aside - there was some recent news about Barak threatening a "disproportionate" response in Gaza, but this is silly. As I've often said, we have to ask 'proportionate in relation to what?' whenever we talk about proportionality. In the case of Gaza, the assault need be proportionate to the number of lives lost. Instead things get much more nebulous - especially because a lot of the war on terror legal argument - because what is the 'proportionate' response to a continuing threat? Bear in mind that lots of legal commentators accept the initial invasion of Afghanistan as a legitimate example of self-defence as against the continuing threat of terrorism, in other words, the proportionate response to a continuing threat was the invasion of a country and the overthrow of its government (transformative self-defence); applying that logic to the Gaza situation, it may be quite difficult to think what exactly a disproportionate response would look like].

As Kennedy notes, the law also embeds a certain model of warfare (again I talk about this a lot but I think it's important; if any of you have the time read this, although I'm not always enamoured with postcolonial stuff, this particular essay is fairly awesome) , which tends to support technologically advanced, centralised militaries as against more diffuse forms of combat (this maps perfectly onto the 'two-track' system of international criminal justice Zolo talks about) - viz. the rules are rules of imperial war. So, we might want to talk about war criminals - I'm uncertain about this and I think it brings its own problems - but we certainly need to criticise the law too, because it's hugely deficient.

Our goal is not to tie down the army, but to give it the tools to win in a way that is legal

2009-02-02T16:27:00.004Z

Really interesting article I got sent via China Miéville on the international law division of the IDF, I will comment properly on this at some point, because it strikes me as something that could be theoretically rather useful:

The idea to bombard the closing ceremony of the Gaza police course was internally criticized in the Israel Defense Forces months before the attack. A military source involved in the planning of the attack, in which dozens of Hamas policemen were killed, says that while military intelligence officers were sure the operation should be carried out and pressed for its approval, the IDF's international law division and the military advocate general were undecided.

After months of the operational elements pushing for the attack's approval, the international law division headed by Col. Pnina Sharvit-Baruch gave the go-ahead. In spite of doubts, and also under pressure, Sharvit-Baruch and the division also legitimized the attack on Hamas government buildings and the relaxing of the rules of engagement, resulting in numerous Palestinian casualties. In the division it is also believed that the killing of civilians in a house whose residents the IDF has warned might be considered legally justified, although the IDF does not actually target civilians in this way

Edit: again from China, the plot thickens:

Prime Minister Ehud Olmert came to the defense of Col. Pnina Sharvit-Baruch on Sunday, speaking out against those seeking to prevent her from taking up a teaching position at Tel Aviv University when she finishes her IDF career in the coming weeks.

Some Thoughts on Imperialism and International Law

2009-01-29T17:38:00.007Z

Richard Seymour (i.e. Lenin of the Tomb) has written some very interesting pieces that touch on issues close to those I have recently addressed – namely the historical and theoretical relationship between imperialism, humanitarian intervention, self-defence and the war on terror. Both of these pieces are very insightful and I would recommend people read them (although I assume such a recommendation on my part is pointless, as I doubt anyone who reads my blog doesn’t read the Tomb). That being said, I have a few nit-picky concerns with Lenin’s stuff, particularly as concerns the role an importance of [international] law.

Who has the right to self-defence?
One of the important things that I think has to be done with this post is to properly disaggregate all the legal issues and then use them to properly frame some of the problems that Seymour identifies. So, to start with, he notes:

It might be argued that today the lower caste of states do have some rights of self-defence, but these are heavily circumscribed. Thus, the ruling caste reserves for its exclusive use the right to weapons of mass destruction, to aerial bombardment, invasion, and so on. Israel has a right to all of this but, say, Iran does not.

Immediately, there is a problem. Seymour is conflating the right to use self-defence, with the degree of force which can be used in self-defence and the degree of force that can be used more generally in an armed conflict. Although this may seem like a pedantic distinction, I’ll argue later that it’s actually pretty important.

In a similar vein, Seymour points out the centrality of statehood to many of the arguments defending Israel’s actions, noting:

The question of statehood is important. It is not uncommon for Israel's supporters to emphasise the fact that it is a sovereign state while its designated foes (Hamas, Hezbollah, Fatah, Islamic Jihad etc) are non-state actors. This emphasis presumably derives from the perspective of Just War theory…

Perhaps, perhaps, perhaps. But it strikes me that the more sophisticated defenders of Israel’s actions don’t really need to refer directly to Walzer on this point. Instead all that needs to be referred to is international law, which although increasingly concerned with non-state actors, still takes the sovereign state as its main actor. Indeed, in international law, the right to self-defence can only be seen as accruing to states. Thus, I’ve noted before, the anomalous character of the Palestinians in international law really muddies the water. Historically, in the period of decolonisation (when there was a really radical Third World movement) this argument was less prevalent, precisely because the question of violence in pursuit of self-determination by non-state actors was so vital to their interests. But with the general move away from an international law whose agenda genuinely was – to some degree – shaped by these movements this argument seems to have disappeared (and to be honest may well surface in the imperialist camp with the perhaps Kosovo/Georgia serving as a bit of a harbinger to this).

It’s important to note this, I think, because it actually buttresses Seymour’s more general argument. International law’s focus on statehood (as opposed to just Walzer’s) is deeply exclusionary. As Anghie and the TWAIL movement have shown us, the centrality of the sovereign state to international law has a genetic connection to the old exclusionary/transformative notions of a Family of Nations that were around in 19th century international law. These notions of statehood were irreparably bound up with notions of European (and I would insist capitalist) notions of internal social organisation. I think this is important to note because it’s not just some commentators who embody these commitments but very fabric of our international order.

The general thrust of Seymour’s work is particularly provocative and although I find it persuasive I think the above caveats would lead me to slightly different conclusions to him. Seymour argues [this is a long quote but I think it’s worth engaging with]:

This caste arrangement was once structured by claims of racial solidarity, such as those of Anglo-Saxonism. Such are the origins of the 'special relationship' between the US and UK in the later 19th Century, in which the US resisted the urge to annexe any part of British territory in Canada or the British West Indies while the British not only acceded to American expansionism but embraced it at key points, such as during the 1898 war. Anglo-American competition did not disappear, but it was twinned with a new strategic orientation based in part upon racial sentiment and fear of emerging rival imperialisms of Russia and Japan. At this point, race and conceptions of democracy were inseparably intertwined, the latter seen as a function of the former. That is, for American imperialists such as Theodore Roosevelt no less than for the British empire, democracy was appropriate to the 'white race' which had alone reached a state of self-government.

The trend since 1945, however, has been to make racism invisible - as Robert Vitalis puts it, there is a pervasive 'norm against noticing' the way in which the global order is powerfully structured by race … It would be pedantic to list the examples of democratic states that have been targeted for subversion and military attack by western states, or the democratic movements that have felt the iron heel of western repression. It is sufficient to note that in the most recent case of Israel's 'self-defence', the opponent has been the elected government of Palestine. Such violence by western states is neither democratic in method nor in aim, unless one is willing to descend to the argument that by definition political coercion by democratic states constitutes an enlargement of democracy's scope.

I have to say I have a real problem with this. Whilst historically it is true that much of the old international law was racialised, this racism was of a cultural/social/economic type, rather than of the biological type (or it was at least an odd mix of the two). This is particularly notable because although the standard of civilisation was not always applied ‘fairly’ there were a good many ‘non-White’ states which gained full legal personality, or were at least granted ‘semi-civilised’ status. Once we hit early on in the 20th century (I don’t know exact dates for all of this) China, Japan, Egypt etc. were all fully sovereign. There are two driving factors behind granting these countries sovereignty – one is the direct, immediate interest of imperial powers, so as China Miéville points out (Between Equal Rights, 2005, Brill at pp.240-250) the recognition of certain states as possessing some sovereign rights was essentially driven by the fact that the major imperialist powers had made treaties with these nations that simply had to be accounted for.

The second factor was the internal character of the states – which comes from both 19th century international law and the Mandate System – essentially once many states genuinely had massively altered their internal life so that they were large, capitalist centralised nation-states they were granted some legal personality. Ultimately, I would argue that can again be (more broadly) related to the idea of ‘interest’, these nations were forced to reorganise so that they would be more suitable for the spread of international capitalism. To my mind the racialisation of these issues is secondary, or rather, much of the racism is as ad hoc as the notion of civilisation (indeed the two are bound up), often responding to particular imperial interests.

I would argue that the above considerations hold true today, albeit in a modified form. So, Seymour is right to point out that – to some degree, although again we shouldn’t go nuts about this either – ‘democracy’ has assumed a similar role to civilisation. He is also right to point out that in practice this notion of democracy is highly flexible as a good number of democracies have been undermined by Western states – often mounting some kind of international law claim [although as an aside I think part of this comes from the very formal notion of democracy deployed by Western states; democracy is a set of institutions – largely symbolised by continuing elections – and rights – often property rights but also an abstractly free press etc. – which have to be guaranteed for the future. This allows substantively democratic movements who do not meet these conditions to be ignored, whereas brutal reaction acting in the name of these commitments to be supported].

But I really don’t think this is a racialised notion. To my mind this is – as civilisation was – much more about the interests of imperial powers. The West didn’t undermine Latin American or Arab leftist regimes because they weren’t white, they did it because these regimes contradicted their interests (and let’s not forget that the CIA ran operations even against some of its 'allies'). It seems to me that the criterion of democracy – as noted in my very long square brackets – has responded much more clearly to interests than to race. Now, often the two coincide, and I think some of this is just contingent – Europe developed capitalism first, Europe expanded first; so capitalist organisation is European – but it’s telling that imperialists don’t seem to care about the colour of its puppet regimes’ skins and will happily support some ‘brown-on-brown’ (and even brown-on-white) action should it support their interests.

Conclusions
Putting all of this hodge-podge together with some new stuff I want to make some conclusions.

Firstly, international law often has an abstract standard that it applies to everyone – this may not always be done fairly but in principle people support this. This abstract standard is something like – all states have the right to self-defence etc. But very often although this standard is abstract it essentially universalises a certain way of doing things which gives imperialist states a massive advantage. So every state has a right to self-defence. More importantly for us the rules regarding what it is permissible to do in war are massively in favour of high tech imperialist states. So, long range weapons which can’t be aimed properly (i.e. rockets) are ‘indiscriminate’ and as such any attack by them is per se impermissible. But long range, high-tech ‘smart’ weapons which nonetheless kill many more civilians are not per se indiscriminate and so the standard of proportionality, which is often largely a whitewash.

Indeed this abstract focus on direct-ness often operates in such a way. Whilst it is a war crime to directly target any civilian not taking part in the hostilities, it is not per se a war crime to launch an attack knowing that it will kill civilians not taking direct part in the hostilities (which leads to the ridiculous situation where a civilian driving an ammunition truck cannot be shot, but the truck could be blown up). As Marx noted, applied equal standard to unequal people is a right of inequality.

Often this is the favoured tool of the imperialists because it allows them to claim faux equality whilst massively reinforcing their own interests.

Secondly, outside of this equal standard there are some formally unequal standards that attempt to entrench imperial power within the law. Humanitarian intervention is one of these – insofar as the right clearly doesn’t accrue to everyone. More important in this respect is the War on Terror – which in practice is an attempt to entrench the right of certain states to intervene military unlimited by temporal or spatial considerations.

But, I believe that resort to this type of logic – and to some degree it underpins most Israeli interventions – often is a sign of weakness. The preferred method of imperialist states is surely to be able to operate through the ‘normal’, formally equal channels of international law as this allows them to avoid accusations of – well – imperialism. I think the vital point is that these sort of logics only come into play in the case of weakness or inter-imperialist rivalry. As I have previously noted, the US only resorted to strategies such as humanitarian intervention or the war on terror because it was facing opposition in the Security Council (although not initially with the war on terror).

What is common about both of these strategies – to my mind – is that whilst there may be something of a ‘colour line’, this colour line is secondary to, or viewed through the prism of, imperial interests. So, whilst the standards may be somewhat Eurocentric, this is – I think – largely because capitalism and imperialism grew up here (as it were). China Miéville – in his forthcoming article on Haiti – has a fascinating reflection on the relationship between international law and capital accumulation, arguing that we might well conceive international law as serving to facilitate capital accumulation. This is something I may run with in the next few years (providing someone gives me money to do a PhD), as we can interestingly see the initial period of exclusionary international law as linked very much with primitive accumulation. Present international law – and the way that it facilitates certain types of imperial violence – can be useful conceptualised in terms of accumulation by dispossession, allowing imperial states to intervene against those who are proving problematic for accumulation.

It’s vitally important to distinguish between these two and condemn them both. Because if we argue only that the second type (of formal exclusion) operates, we allow our opponents to point out the way in which genuine formal equality does operate.

Obama the Imperialist
I find this piece much more straightforward to agree with, so I’m not going to comment on it massively. One thing I would say is that the attacks in Pakistan seem to indicate that Obama won’t necessarily be dropping the ‘war on terror’ moniker (not that it really matters because, in substance, it is much the same thing as liberal interventionism). Indeed, in many respects Obama may simply strengthen the US’ claims to imperial exceptionalism. In the case of Bush it was ridiculously easy to point out the flaws and contradictions in claiming to love freedom etc. because of the obvious mistreatment of vast numbers of people – Guantánamo and extraordinary rendition being the most evident. But Obama has been quite decisive in ending much of this ‘spectacular’ mistreatment (through a series of spectacular moves of his own) whilst maintaining the claims as to American exceptionalism. The spectacular is actually quite a useful category for examining the transition from Bush to Obama. Bush (and the opposition to him) embodied the spectacular insofar as his administration was involved in some very spectacular forms of violence – torture, detention without trial, shock and awe. These forms of violence were vehemently opposed by a coalition of liberals and the left. But the point is that the US claims to exceptionalism should not just be undermined by spectacular violence but structural violence too – the prison industrial complex, immigration, poverty, complex racial problems. Since much of the opposition to the Bush administration was based on spectacular violence, Obama’s spectacular renunciation of much of this violence leaves him in the perfect position to argue for a renewed American exceptionalism.

John Bolton was very telling on election night – arguing that with the election of Obama the US could no longer be criticised for its racial problems (around 1:10). Ultimately, then, I fear that a lot of what China Miéville has said has come to pass – by emphasising the ‘revolutionary’, spectacular problems of the Bush administration (which did give us some allies) – we have undermined our abilities to criticise that which follows it, and may even have inadvertently created the conditions for a revitalised American exceptionalism.

Law and Loneliness

2009-01-27T15:45:00.000Z

A few weeks ago I finished reading Hannah Arendt’s The Origins of Totalitarianism (1962, Meridian Books). As many of you will know the book is really great and mounts an original and persuasive argument with regards totalitarianism, even convincing me that the term might have some utility (although I am fairly steadfast on the idea that equating Nazi Germany and the ‘Stalinist’ Soviet Union is not that useful). However, as with recent critical work (which of course is influenced by this account) I think that Arendt gives law rather too much of an easy ride. Often in the book she treats the law (in Debord’s words) as being ‘asleep’ to processes of domination before ultimately being abolished. As I have argued earlier this is something of a liberal response (although Arendt was obviously not a liberal and she is ambivalent on the law), which absolves law of complicity in oppression (even if one some level it must condemn law for being so inefficient).

I think this is particularly prevalent in her discussion of the role that the ‘masses’ and loneliness play in the growth and consolidation of totalitarianism. For Arendt ‘loneliness’ and the ‘masses’ are two parts of the same process. Although the concept of loneliness in only introduced in an amended chapter to Origins (Ideology and Terror) I would argue it remains implicit within her description of the masses (indeed it is explicitly mentioned in this earlier discussion) and is very useful in differentiating between the special role of the masses in totalitarianism and ‘ordinary’ tyrannies.

Arendt first distinguishes between isolation and loneliness. Isolation occurs in the political sphere, essentially it occurs when people are unable to make public, political contacts with each other. Owing to this they become unable to act politically and so impotent. Arendt argues that this is standard fare for all tyrannical regimes (p.474). However, this political isolation cannot break all contacts between men, the corresponding condition to isolation in human life as a whole is loneliness.

Arendt again makes a distinction, between loneliness and solitude. Solitude is simply being alone or ‘by myself’, for Arendt solitude can still involve a dialogue between ‘me’ and ‘myself’. By contrast, loneliness ‘shows itself most sharply in company with others’ (p.476). Loneliness is the ‘experience of not belonging to the world at all’ (p.475). The experience of loneliness requires the company of others because our identity is constantly confirmed by the company of equals, thus, the experience of loneliness, of not belonging with anyone else ultimately means an end to the self as well.

This is necessary because totalitarian movements embody a total ideology. Only lonely, gullible people who lack common sense and need an anchor in their superfluous world. Arendt gives these rather mystical sounding phrases a concrete basis with her notion of the masses. Essentially, Arendt argues that totalitarian movements (in contrast to all political movements that preceded them) are ‘mass organizations of atomized, isolated individuals’ (p.323). For Arendt, then, totalitarianism depends upon the existence of the masses; for Arendt the masses are a somewhat contradictory phenomenon, produced by bourgeois society. Essentially, they are the embodiment of loneliness so as such the masses are a ‘mass’ of atomised, individuals who have also lost all sense of self (p.311). She ascribes the rise of the masses to the growth of bourgeois society:

The truth is that the masses grew out of the fragments of a highly atomized society whose competitive structure and concomitant loneliness of the individual had been held in check only through membership in a class. The chief characteristic of the mass man is not brutality and backwardness, but his isolation and lack of normal social relationships.
p.317

Reading Arendt’s account of the masses I was struck by two things, firstly, its similarity of Pashukanis’ account of the law, and secondly, the complete absence of the law from Arendt’s particular discussion. Thus, as Pashukanis notes (in the General Theory of Law and Marxism ‘law … is a method of relating atomized social elements’ (p.90), furthermore, from my favourite quote:

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".
p.70

Here Pashukanis demonstrates perfectly the way that law mirrors the contours of the mass man. While it is clearly a way in which individuals relate to each other, it also posits these individuals as atomised, isolated, monads. In other words, one of the prime pre-conditions of totalitarianism, the creation of a mass of atomised individuals is perfectly homologous with the law, this – at least – should be an area of investigation.

However, insofar as Arendt mentions law, it is to talk solely about its inefficacy or its abolition. So, on the one hand, she argues that ‘[t]he first essential step on the road to total domination is to kill the juridical person in man’ (p.447) by placing certain people and certain regimes outside of the protection of the law. This is really just a deepening of Arendt’s classic engagement with the nation-state and the rights of man. Basically, Arendt argues that the phenomenon of refugees and displaced persons undermined somewhat the claim to alienable rights – independent of any particular national laws. This is because the point at which people lost their nationalities – and became refugees – they lost all their rights. Even in the democratic countries they would very likely be placed into camps and had less rights than even criminals (who are at least subject to the procedural rigours of the law). Thus:

The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance.
p.302

Arendt opines that this is because major figures were convinced that civil rights (that is to say the national rights of citizens) were the concrete embodiment of human rights, as such the nation became the heart of human rights. More generally, Arendt argues that the abstract, individual, ‘human’ rights only make sense inside of a stable social hierarchy, which includes not only the nation, but also the class and political structure:

Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are represented by groups or form a social and political hierarchy.
p.312

So the point for Arendt is that with the disintegration of these hierarchies (following the war and owing to the general atomisation occasioned by the development of capitalism) produce the masses, which creates a politics ripe for the abolition of the juridical person. What this account seems to miss is the intimate inter-relation between law and atomisation. Rather than being ‘ineffective’ in the face of atomisation law seems to be an embodiment of this atomisation and – perhaps – an attempt to mediate it, without ultimately overcoming it.

But more than this, Arendt fails to consider the way in which, owing to its close connection with capitalism, law produces atomisation – and so contributes to the formation of the masses, as well as the undermining of stable hierarchies. Social atomisation is – of course – occasioned by the development of capitalism. But capitalism is not just an ‘economic’ system, as Pashukanis has shown, the commodity form always throws up the legal form alongside it – the atomisation of capitalism is the atomisation of law. This becomes even more relevant when we consider the ways in which capitalism brings people ever closer together, this concentration of human beings (in the factory etc.) combined with the atomisation of the law creates the preconditions for the development of the masses.

Another aspect of this atomisation is the social disintegration described by Arendt. In his introduction to the third edition to the General Theory (1977, Ink Links) Pashukanis describes the process by which law becomes the main form of social regulation as:

[T]he disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects. The dissolution of the patriarchal family, in which the pater familias was the owner of his wife’s and his children’s labour power and its transformation into a contractual family in which the spouses conclude between themselves a contract of their estate, and the children … receive wages from the father, is one of the most typical examples of this development.
p.41

The whole thrust of the law is to break up formally recognised hierarchies and replace them with collections of formally equal individuals. This is not just true of the family but more generally. So for instance, Arendt puts a lot of stress on the nation-state, but the thrust of rights-talk has been to juridicalise the nation. Firstly, in the sense that in many cases the ‘idea’ of the nation is reduced to its ‘Constitution’, its ‘Declaration of Rights’ etc. Secondly, in the sense that nationality itself is juridicalised, with the nation no longer seen as an organic social hierarchy but instead a collection of formally equal citizens. Thus, if the law does require social hierarchies to give it substance (and I would really want to qualify this, it’s clear that the law requires something and here I think Rasulov’s notion of the Poulantazian state is very useful) it nonetheless tends to dissolve these very hierarchies.

Thus, even if we are to characterise totalitarianism as without law (and this is always hugely problematic even, I think, inside the camps), it is not the case that the law is simply ineffective when confronted with totalitarians. Instead law was essential in creating the conditions in which totalitarianism could flourish. Law with its emphasis on creating abstract, formally equal individuals and then allowing them to interact as such, is the perfect embodiment of the atomisation and loneliness that gives rise to the masses. This incidentally perhaps tells us something about our own political practice. Often we on the left insist on the right to – say – a minimum wage, benefits etc. in contradistinction to gaining them from charity. In a way this has to be correct because we don’t want people to essentially be dependent on the will of others in the form of charity. However, what charity does do (although even this is increasingly undermined by juridification) is maintain a human relationship as opposed to an abstract, atomised, distant one. The challenge then is to find a politics beyond both abstract rights-talk (which might lead the way to totalitarianism) and romantic organicism, that is to say to find a politics in of the active subject that collectively intervenes in the political sphere.

More on Gaza

2009-01-27T00:36:00.003Z

Sorry I haven’t posted in a while. I’ve actually been meaning to write something like this post but I’ve had stuff on. Recently, criticism of Israel’s Gaza offensive, and in particular legal criticism of these actions, has grown pretty intense. One early – and very interesting example – was this letter to the Guardian, which is signed by some very good people, a fair few of them being critical legal people too. The general structure of this letter – a legalistic argument, invoking academic authority and a mixture of critical and mainstream academics – makes it very similar to a previous this intervention against the Iraq war. As such, the same considerations expressed in this very incisive critical reflection on the problems of such an approach resurface. One of the limitations I found with this piece was what struck me as a ‘liberal’ approach which, rather than naming any of the parties involved in the action, equally condemned both sides and elided completely the historical and material context of the assault, merely noting a series of laws which (by implication) have been violated. In this respect I think this letter in the Guardian was much better and I think that it is quite telling that it is fairly obviously not a lawyers’ statement. However, I’ll return to this point a bit later.

Aside from the above-mentioned letter there has been a raft of articles, opinion pieces etc. arguing that Israel has committed war crimes. Now, as was clear from my other postings in this area, I am unconvinced that even the substance of legal argument here can be marshalled into a particularly progressive direction. My basic argument in this respect is that the law is at best indeterminate and, more than this, seems very unlikely to be able to actually limit the behaviour of imperialist states. But, as Susan Marks has noted (2000: 144):

[I]ndeterminacy is at one level international law’s weakness, at another its greatest strength. It is precisely because principles are contradictory that we are able to find in them counter-systemic logics. It is precisely because norms are unstable that we can lead them to ‘surpass themselves’.

Perhaps, then, what we are seeing is indeterminate legal argument being driven by a powerful popular movement and used to condemn Israel’s actions. However, I would argue that even if this is the case, there are still some big formal and substantive limitations to this practice, which may point to the inefficacy of using law in such a way.

So I think the first important point to note is a procedural/jurisdictional one. This is very well summarised by LWC. Basically, if we want the language of war crimes to have any critical bite, it seems necessary that we have some kind of forum which can definitively say that the events which took place amounted to war crimes and pass on some kind of punishment – viz. a court or tribunal. But, as LWC notes the procedural bars to this seem pretty difficult. The first complicating fact (which will resurface continually in the technical-legal debate) is that there is no ‘state’ of Palestine. There are a Palestinian people, who have a right to self-determination, but the land they occupy is a legal anomaly. Secondly, the ICC is out, aside from the state problem identified above, Israel is not a signatory to the ICC Statute. The next option is some kind of Security Council action – this could involve assigning the situation to the ICC or using a resolution to establish a separate tribunal. What with the United States remaining a permanent Security Council member, with the attendant veto power this seems highly unlikely (and I don’t think an Obama Presidency will alter this basic fact).

Thirdly, we can talk about universal jurisdiction. Well, it’s certainly the case that war crimes may attract universal jurisdiction (the majority in the Arrest Warrant case seem to say this) but this is not enough. Because while national courts may have jurisdiction over war crimes it is necessary for the ‘war criminals’ to be in the country, be apprehended and then tried. Now, even assuming the first two requirements come into fruition most national courts have ‘safety valves’ which basically allow them to avoid such prosecutions, we already know that these ‘safety valves’ can and will be used in the case of Israeli officials accused of war crimes. The best we can hope for with this type of reasoning is that certain Israeli officials (those who are not protected by immunities) can be made to feel a bit uncomfortable about travelling abroad. Fourthly then, to the best (indeed possibly the only) hope. As reports have indicated, it is possible that the General Assembly might ask the International Court of Justice for an Advisory Opinion on the matter. There are real questions about the competency of the ICJ in being able to reconstruct the facts on the ground to a great degree of accuracy. The problem of Palestinian non-statehood also resurfaces here as it becomes very difficult to determine what obligations are owed to and by an anomalous entity such as Palestine. This is assuming – of course – that the ICJ doesn’t simply say that the facts are not within its jurisdiction (which some people think is the sensible option).

Assuming that these barriers are overcome, I think there are a series of problems which mean opposing actions in terms of ‘war crimes’ etc. tend to mean that this opposition assumes a ‘liberal’ character. I would argue that this liberal character makes it very difficult to understand and fully oppose Israel’s action in Gaza and its general oppression of the Palestinian people.

So, what we should first note is that all the talk of war crimes is highly likely to focus on a series of specific events – the use of white phosphorous, the attack on UN buildings, the attack on the school etc. – rather than on the attack as a whole. As I’ve previously said, I remain unconvinced that the proportionality argument will hold up once we get to the nitty gritty of legal argument. But even assuming it does, this doesn’t condemn the attack per se but merely the way in which it was carried out. What seems very likely then is a series of de-contextualised ‘events’ which miss the bigger picture.

It is this tendency that really bothers me about the ‘war crimes’ arguments. I’m worried that in focusing on these highly specific acts, and apportioning blame to a series of ‘guilty’ individuals we miss out on the broader structural and systemic logics (as well as the everyday concerns) which have driven this attack. This is quite evident by the fact that the media – and legal attention – only flared up when there was a direct, military assault on Gaza. Very few of the legal commentators have mentioned the blockade and the great suffering it has caused (with a few honourable exceptions). It’s quite interesting that when the blockade has been mentioned at all, it is only in conjunction with the notion of a ‘humanitarian crisis’ in the Gaza strip, yet the language of ‘humanitarian crisis’ seems to elide the deliberate, conscious nature of the creation of this crisis.

Even if the blockade is brought into view (and this seems highly unlikely) legal talk – which is about abstract obligations and which state/individual violated them – fails to get to grips with why it is that that Israel acts in the way it does. I don’t want to engage in a massive analysis here, but it is pretty clear that Israel is adopting the classic colonial rhetoric of condemning the natives as backwards and inhuman, with lives that are worth much less than the lives of the settlers. If Israel is driven by this logic, then simply condemning its actions as criminal is not going to solve anything.

This lack of a focus on the broader issues is reflected in the way that legal argument treats the actions of Hamas. A lot of the legal commentary seems to unproblematically accept that Hamas’ actions constituted a , the problem is simply that Israel overreacted to this. But this can only be achieved through abstraction. One might just as easily treat Hamas’ actions as a response to Israeli actions. The only way to properly understand the conflict is to look at its historical and material context – not just isolate a particular crisis and begin to ascribe responsibility. Legal argument also has to almost ritualistic denunciation of Hamas’ actions of also breaching international law. What is interesting here is that Hamas’ actions are simply per se illegal by virtue of their low technology (which as Chris Bertram points out is morally bizarre). Furthermore, the liberal legal concentration on abstraction completely ignores the massive difference in the scale of the thing – equally denouncing two sides of a conflict when one side possesses a massive technological advantage and has killed a great many more civilians amounts to taking sides.

So – in a nutshell – my problem with the ‘war crimes’ line is that it treats the attack on Gaza as a kind of unique crisis composed of a series of mini-crises, none of which is linked to the broader dynamics of the ‘conflict’. But unless we understand these dynamics how can we hope to change them? Indeed there's a sense in which legal criticism in this respect is a sort of (to coin an Adornian phrase) pseudo-activity, which lets us feel better (and genuinely does achieve something albeit something quite small) without addressing the more important, difficult issues.

[In my head - a week ago - this came out a lot better, but it makes a few ok points, so I'll let it exist]

The Non-War on Terror?

2009-01-16T01:37:00.005Z

So, one story in this week is David Miliband’s repudiation of the ‘war on terror’. Now, notwithstanding the obvious cynical timings of the remarks (viz. just before Bush goes and Obama comes in) I can imagine that there are a good number of liberals (although not those of the cruise missile type) who draw hope from these words. The same can evidently be said (with less caveats) for the incoming Obama administration, especially in light of the noises Hillary Clinton has been making.

Personally, I’m not so sure. This is not to say that I think these people are lying (although they could be) but rather that this change in policy is much more likely to be a change in emphasis, with the same systemic, structural and conjunctural forces shaping this policy as before. However, I do think that Miliband’s piece illustrates – quite usefully – a certain liberal take on the war on terror.

Importantly, Miliband argues that:

The phrase had some merit: it captured the gravity of the threats, the need for solidarity, and the need to respond urgently - where necessary, with force.

These ‘merits’ should be borne in mind, because I think they tell us more than you might think initially. Having identified these merits Miliband goes on to identify some of the problems that he associates with the ‘war on terror’. Firstly, it ‘gave the impression of a unified, transnational enemy, embodied in the figure of Osama bin Laden and al-Qaida’ whereas in reality ‘the motivations and identities of terrorist groups are disparate’. Secondly, (and I think this is especially important to Miliband) it ‘implied that the correct response [to terrorism] was primarily military’.

I think that this misses a good deal of the real importance of the war on terror. The idea that the war on terror merely implied that the ‘correct response was military’ whilst obviously being correct (as the alternative could have been criminalising terror) misses the way that it also shapes the way in which military force can be used. In other words, Miliband’s analysis of the ‘military’ aspect of the war on terror misses its legal aspect. In this respect it’s worth revisiting an old post I made on a great article by Fredric Megret. Essentially, Megret points out that the logic of declaring a ‘war’ on terror didn’t just mean that ‘the correct response was primarily military’ but also that (owing to the continuous threat of terrorism and presence of terrorists all over the world) this military force was temporally and spatially unlimited – in other words it was a right to intervene anywhere, at any time.

This unlimited right to intervention comes with a second point, which again shows us that Miliband misses some of the (legal) import of the war on terror. For Miliband the logic of the war on terror treats terrorists as one unified bloc, again I think this is a shallow analysis that misses the real function. Because of course if – as above – the war on terror rhetoric lets you intervene against terrorists anywhere and at any time then we have a problem. Unless this ability is limited then certain rogue states etc. might take it upon themselves to use military force against their enemies. Thus, the designation of terrorists as the ‘enemy’ and (further) of certain states as ‘terror states’ or ‘terror supporting states’ is absolutely crucial. These states become disallowed from using force. The converse of this (and again this is crucial) is that certain non-terrorist, good states gain the right to act in the above special way.

Linked to this is that making terror ‘central’ in the way that the war on terror does means that terrorism is posited as threatening the integrity of the international system. In practice then, the move to war, created a legal situation in which a few – western states – are able to use violence, anywhere and at any time so as to secure the interests of the international system. In other words, the war on terror was a way for a certain section of imperialism to legally entrench its capacity for intervention against its enemies (because terrorists always reside somewhere an attack on terrorists is always an attack on a state).

Even in this piece Miliband doesn’t do this. Let’s return to the merits that Miliband identified with the war approach – clearly the sum total of these remains the same, terrorism is a massive threat (that must sometimes be met by force) and ‘solidarity’ has to be invoked against it. Indeed according to Miliband a community of ‘values’ is what needs to respond to terrorists.

So, in practice, what I have identified as the most salient features of the war on terror seem to go unchallenged by Miliband. This should not surprise us. Miliband has always been an advocate of humanitarian intervention. Indeed in November of 2008 he wrote an article defending ‘liberal interventionism’ (and this phrasing is important - liberal interventionism is - theoretically - much broader than mere humanitarian intervention). As I have previously noted, those salient features of the war on terror are – in some sense – a continuation of humanitarian intervention, whereby certain ‘liberal’ states gain the special right to intervene in other states, in the name of protecting the universal values of the system – e.g. human rights. Again, as I have noted before, these attempts at entrenching imperial power strike me as stemming from a structural weakness of Anglo-American power, which is seriously challenged on all fronts by a resurgent Russia, by China, by certain states in the Middle East, by Latin America and by domestic movements. This can only be exacerbated by the current economic problems.

So rather than address these key features, what is it that Miliband wants? Well it strikes me that his key manoeuvre is an attempt to move away from the perceived military focus of the war on terror. So what does Miliband want instead?:

Terrorist groups need to be tackled at root, interdicting flows of weapons and finance, exposing the shallowness of their claims, channelling their followers into democratic politics.

And from the liberal interventionism article:

Intervention should not always be military and only rarely be forcible. We must focus on intervening early, before a country descends into full-scale conflict – much as the international community did in Kenya following last year's election.

Where troops are needed, we must plan rigorously for the immediate aftermath. The first months after a military intervention are critical to maintaining local support and legitimacy. We must recognise that military solutions alone will not stop conflict. We need a civilian force – police, judges, engineers and others – with the professionalism and responsiveness of the armed forces. There needs to be clarity about who is in charge of the international presence, rather than fragmentation between countries and between military and civilian operations.

So, basically, Miliband wants to keep the scope of the war on terror in place, but wants to make a – quite Foucauldian move – from the ‘sovereign violence’ of war to the power of discipline. So he is basically proposing that certain imperial states have a monopoly on intervening in any number of seemingly domestic fields in countries on the periphery. Now, the first point to note is that this clearly isn’t something we should celebrate, there is at least something honest about invading a country and using military force. But also we need to realise that this is nothing new. Imperialist states have been claiming this right – or actualising such a ‘right’ in practice – since imperialist states first came into being. More importantly, the war on terror always involved this stuff too. It may be true that the Bush regime foregrounded military violence as being particularly important – but it also skilfully used the UN (with the Counter Terrorism Committee, 1267 Committee etc.), sanctions, aid etc. to achieve its aims. Now it may be true that the Bush regime was slightly less flexible than Miliband’s proposal, but I really don’t think there’s a fundamental break.

So then, why the rhetoric? Well, a big part of it has got to be ideological (in the crude sense). Knowing how unpopular the old war on terror is it becomes necessary to differentiate oneself from it. Shrewdly then, Miliband (and by extension Obama et al) is able to differentiate himself from ‘Bush’ without actually changing very much at all.

This is very clear in relation to international law. The Miliband-type liberal claim is that the Bush regime simply ignored international law and what has to be done is to ‘move back’ to the rule of law. But – and I think China Miéville puts it best – the problem with this is that:

[I]t allows right and left to agree on an agenda which actually obscures many truths of power. So for example, much of the mainstream left will stress how there has been a neo-conservative revolution manifested by an upsurge of violently aggressive unilateralism, a complete denigration of international law, the complete ignoring of its European partners and so on. What I would say is that in fact the American ruling elite are, and have always been, much more split and nuanced and variegated on these questions, as have the European elite, than that would suggest; and that this discourse of the European liberal left creates a kind of simplistic bogeyman. For every Richard Perle, saying that international law is dead, yay-hay, there is for example a John Yoo, very eruditely defending American imperial interests in international legal terms … So this discourse of revolution—from the right it can legitimate certain things, such as Guantánamo, which I’m not prepared to legitimate; and from the left, it lets European social democracy and some apparatchiks of American power equally off the hook.
p.8

(China has written a fantastic article on Haiti that deals with these issues which will eventually be available in the Finnish Yearbook of International Law – everyone must read it as soon as it comes out). I think the point here is totally right. The particular ignorance of the war on terror’s intimate connection with international legal argument was something I think both left and right wanted to promote in public. The right got to pose as big strong men. The left was able to ‘let law off the hook’. What was really important about this was that the liberal-legal-left could totally deny any complicity in the war on terror, brilliantly, when it was their turn to promote imperial interest they could simply claim to be restoring the ‘rule of law’ without really changing very much (and indeed changing very little fundamentally) [note - Phil has a good post that (as ever) disagrees with me, I need to address this properly].

Such are the politics of imperial law.

Gaza and the Uselessness of International Law

2009-01-12T01:15:00.004Z

And so the slaughter in Gaza continues unabated. There’s really very little I can add to the commentary on this situation, particularly that written and linked to the Tomb (which really has been a bastion in this respect). However, I do think a few brief words about the law are in order. Right from the outset I should say that much of this is simply the application of a previous post to the concrete situation in Gaza.

In some respects it’s quite noticeable that there hasn’t been that much legal commentary on Israel’s actions. There have been bits here and there (and more has come out recently, which I’ll refer to later on) but nothing especially in-depth. One thing that has been pretty ubiquitous though has been a generalised sense that Israel’s actions have been ‘disproportionate’ and have – in some way – breached international law. In theory this might point to the progressive role which international law could play in criticising Israel’s actions, but actually, when we delve a little deeper, I think it shows that international law is – at best – useless.

So – proportionality. Proportionality has lots of different meanings in legal discourse, but for our purposes there are two ways in which it applies. To begin with there is proportionality’s role in the jud ad bellum – the law which regulates when it is permissible for a state to use force. Basically, in order for an act to ‘count’ as self-defence it must be necessary and proportionate. Now, this is probably the way that ‘proportionality’ criticisms can have most traction. But it is really quite difficult to argue here. That’s because – in recent times – there has been a lot of talk about what sort of force is proportionate to an accumulation of smaller attacks. The consensus is that the force deployed has to be proportionate to the threat of the attacks – not just to the number of lives lost on one side – so Israel’s response doesn’t have to be proportionate to the number of people killed in Israel, but to its objective of stopping the rocket attacks.

The particular crux of this objection becomes even more powerful in the light of jus in bello, the law that regulates the use of force once a conflict has begun. Typically what is invoked here is Additional Protocol I of the Geneva Convention; this is the strongest widely accepted international humanitarian law treaty and much of its content has achieved the status of custom, but (I’m pretty sure) Israel is no longer a party to it, with the Supreme Court being ambivalent as to its status. However, we won’t go into these questions but will instead look at this particular treaty on its merits. The crux of the ‘proportionality’ issue (although proportionality is never named as such is Article 57; the vital points to note here are that (57(2)):

2. With respect to attacks, the following precautions shall be taken:

(a) those who plan or decide upon attack shall:

(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects … but are military objectives …
(ii) take all feasible precautions in the choice and methods of attack with a view to avoiding and in any event to minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated

2(a)(iii) deals with proportionality. What is vital to note here is that the proportionality calculus is not between lives lost on either side; incidental civilian loss has to be proportionate with the anticipated military advantage. And here we come to the real problem with proportionality calculi. In order for proportionality to work it is necessary that the two things that are being compared are commensurable. But how can we possibly say if loss of life is ‘excessive’ in relation to an anticipated military advantage? The two cannot be reduced to some similar ‘substance’ that could be compared, and even if they could there is no standard which says ‘how many lives lost’ is excessive and how many aren’t. The only thing that the test can do in practice is compare different attacks (would this one kill more than the other), but here the law shows a massive degree of deference to commanders.

We can immediately see how this is problematic in relation to Gaza. The objective – stopping the rocket attacks – cannot be compared to the number of civilian lives lost and it is difficult to think of a less destructive way that this could be achieved. I think that the wild difference in opinions (all of which is articulated under the rubric of ‘proportionality’) points to the emptiness of the test. An objection that might be raised is that some of these opinions are just cynically deploying international law, but have their own agenda. But the problems with this approach are obvious, firstly, international relations is absolutely chock-a-block with people who have agendas – everyone has one – so using international law with an agenda is a pointless objection; secondly, it is precisely because divergent agendas can be expressed through international law that we can’t rely on it to support our own agenda.

This is exacerbated by the fact that ‘military objectives’ are pretty widely drawn in IHL. Under Article 52(2) of Additional Protocol I, military objectives are defined as:

[T]hose objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

As is obvious to anyone reading this, this definition includes ‘dual use’ targets, targets that would normally be ‘civilian objects’ but which are used for a military purpose – also, this definition is sufficiently broad to include power stations, bridges etc., proportionality is what is supposed to ‘limit’ this. In a situation such as that in Gaza this is massively problematic because on top of the normal problems of an industrial economy (whereby vital civilian amenities serve the military) the rocket attacks come from dispersed, diverse locations. Now whilst there is a presumption that civilian objects are not military ones (in situations of doubt) – the particular structure of the law tends to mean that in Israel can – with some legal justification – claim a wide range of targets as military objectives.

Over at Crooked Timber Daniel has mounted a valiant defence of the law, arguing that the requirements of a concrete and definite military advantage serve to limit what can be done. In practice I don’t think this actually works. State practice in this area has supported a pretty broad reading of this (indeed Daniel’s reading doesn’t ever seem to have been followed). Furthermore, I assume Israel would claim that its individual attacks were all directed towards specific targets which their intelligence had shown contributed towards the rocket activity.

Note, that the point here is not to say that international law is unambiguously on the side of Israel. What I am saying is that the tests are so open, so empty that the particular model of violence that Israel has pursued – the sustained bombardment of a fairly defenceless population – is possible to justify in legal language. The very fact that legal argument is contestable in this respect points to the fact that we really ought to steer clear of condemning Israeli acts as criminal, disproportionate etc., as Israel’s defenders can just muddy the waters by making their case. We should criticise the attacks for what they are – a brutal massacre of an unruly population driven by colonial logic – and criticise the law for being so equivocal.

I think this deserves a bit more consideration (particularly on the progressive potential of indeterminacy), so I may need to write a little more on that.

Addendum
One really important issue here that I haven’t really discussed is the way that legal claims de-contextualise the conflict. I think its vitally important that we grasp the particular imperial/colonial relationships that gave rise to this conflict. Moreover, there’s a sense in which ‘disproportionate’ violence (taken here to mean that Israeli lives are treated as worth more than Palestinian lives) is a structural feature of Zionism. Any state that is based on the dispossession and continuing oppression of the previous inhabitants of the land has to devalue these inhabitants. This is what produces statements attributing all responsibility to Hamas, this is what treats all adult male Palestinians as non-civilians. Even if IHL had more traction, it couldn’t possibly touch these deep, structural causes.

Law and Debord

2008-12-29T17:40:00.003Z

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.

III

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.
(60)

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.”
(147)

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.

VII

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.

Conclusion
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).

Bibliography
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

Arendt and Equality

2008-12-24T15:23:00.001Z

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.
(p.54)

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.
(p.23)

Right-wing Pashukanisites

2008-12-23T15:16:00.005Z

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.
p.323

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.
(p.30)

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.

That Foucault quote

2008-12-17T02:02:00.002Z

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.
p.222

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

2008-12-17T01:24:00.003Z

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.
p.13

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.
p.9

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.
p.14

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.
p.222

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.

Imperial power and legal argument

2008-12-12T17:15:00.002Z

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.
(p.121)

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.

Law, transgression and the Joker

2008-12-10T00:56:00.004Z

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.
(p.138)

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.
(p.101)

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.
(p.70)

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.

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

Legality and Illegality

2008-11-26T14:00:00.003Z

Quoted a bit of this recently, but I feel like it's worthy of more:

The question of legality or illegality reduces itself then for the Communist Party to a mere question of tactics, even to a question to be resolved on the spur of the moment, one for which it is scarcely possible to lay down general rules as decisions have to be taken on the basis of immediate expediencies. In this wholly unprincipled solution lies the only possible practical and principled rejection of the bourgeois legal system. Such tactics are essential for Communists and not just on grounds of expediency. They are needed not just because it is only in this way that their tactics will acquire a genuine flexibility and adaptability to the exigencies of the particular moment; nor because the alternate or even the simultaneous use of legal and illegal methods is necessary if the bourgeoisie is to be fought effectively.

Such tactics are necessary in order to complete the revolutionary self-education of the proletariat. For the proletariat can only be liberated from its dependence upon the life-forms created by capitalism when it has learnt to act without these life-forms inwardly influencing its actions.

Principled opportunism.

I think Marxist legal theorists need to re-read History and Class Consciousness (see Phil for a recent summary).

Thinking about legal strategy

2008-11-22T20:34:00.002Z

So I’ve been thinking a lot about legal strategy over the past few months, especially as I am working on an article that engages with China Miéville’s take on the question. My conclusion – at this moment – is that there is some definite but limited role for ‘legal struggle’ (here I don’t mean struggle that is within the law, but rather struggle over legality – e.g. we oppose the war in Iraq on the basis that it was illegal). But I also think legal struggle in this sense comes up against the limits of legal argument. Legal argument is – by its nature – individualistic and de-contextualising. This means that legal struggle cannot adequately address the systemic and structural causes of ‘illegal’ behaviour. Furthermore, if law is generated by capitalism, then doesn’t this type of legal struggle serve to legitimate capitalism? So insofar as there is a place for progressive legal practice (and I believe there is one) I think it has to be in concrete, practical struggles (often defending our actions). But this type of practice has to be aware of its limitations; indeed, one would think that what has to be done here is the continual admission that these actions are in no way adequate.

However, to this idea I think we can counterpose what I would call ‘Leninist optimism’, as Pashukanis argued, in relation to self-determination:

Lenin understood what his opponents failed to understand: that the “abstract”, “negative” demand of formal equal rights was, in a given historical conjuncture, simultaneously a revolutionary and revolutionizing slogan.

(Pashukanis, Lenin and the Problems of Law: 161)

Now, this passage – and the work it’s taken from – can be read in different ways. But the straightforward thing to note is the way that an abstract demand (i.e. legality) can be revolutionary. One can easily see this can be the case. In course of their concrete struggle progressive forces assert an abstract legal demand. This demand is able to rally others around it. Should this demand not be met, those who have rallied around it might be made to question the existing order, and even overthrow it. In this way what we can see is a case of legality against legality – with the ultimate aim – perhaps – using a legal argument to abolish the law.

Now, I am unsure about this. China Miéville has argued – persuasively – that there is nothing in my analysis that makes legality a necessary component of this. Why does the demand need to be a legal one? Can legal demands motivate people in a way that others cannot? As it happens, I do think that characterising something as illegal can galvanise people in a way that other appeals cannot (this is mostly anecdotal, a feeling as it were, but let’s just proceed). But if is the case, then why?

And here we reach a real problem.

Law only reaches full bloom, spreads it wings, saturates our social existence with the generalisation of commodity form – viz. the growth of capitalism. So the specific motivating power of legal argument originates from the ubiquity of capitalist social relations. So, in drawing on this motivation for revolutionary strategy, we end up strengthening them. Lukács is quite good on this (eventually I'm going to get round to re-reading History and Class Consciousness and make some posts on it, the book has quite a lot of interesting legal observations (uh oh bracket within a bracket!! - it's interesting how much juridical content is in a lot of Marxist stuff and how many Marxists have a legal background)):

Even in the very midst of the death throes of capitalism broad sections of the proletarian masses still feel that the state, the laws and the economy of the bourgeoisie are the only possible environment for them to exist in. In their eyes many improvements would be desirable (‘organisation of production’), but nevertheless it remains the ‘natural’ basis of society.

In order to overcome this it is necessary to see the law as nothing more than a ‘power factor’ (Lukács is right and wrong on this – we definitely have to move away from the fetishism of law but we shouldn’t neglect its internal, specific character):

Such tactics are necessary in order to complete the revolutionary self-education of the proletariat. For the proletariat can only be liberated from its dependence upon the life-forms created by capitalism when it has learnt to act without these life-forms inwardly influencing its actions.

Thus, in taking advantage of the motivating power of legality would we be maintaining people’s ‘dependence upon the life-forms created by capitalism’? If so, can we expect such a strategy to take us to a post-capitalist (and post-legal) future?

Agamben, Hobbes and Liberalism: some incoherent thoughts

2008-11-21T13:47:00.004Z

Wow. You turn around and suddenly two months have gone by. I have been a little bit busy, I got, and then lost, a job (damn you economic crisis!), have a few academic projects up in the air and have read a few books. Also, to be honest, I haven’t been that inspired to blog anything, indeed I am posting this because my cat woke me up this morning, I couldn’t get back to sleep and this thought popped into my head. Anyway, what I was thinking about was Homo Sacer.

Agamben and Hobbes

One of the really interesting bits of Homo Sacer for me was Agamben’s reading of Hobbes, as I’ve mentioned before I think Hobbes is a really interesting and really important figure, so it’s always good to see him get a mention. Anyway, Agamben argues that the state of nature is ‘not so much a war of all against all as, more precisely, a condition in which everyone is bare life and a homo sacer’ (1998: 106). As such, Hobbes argues that the institution of sovereign power arises when people lay down their right to resistance and it is left for the sovereign. Thus, for Agamben sovereign power (in Hobbes) is not founded on contract but on the inclusive exclusion of bare life which is realised through the ban. According to Agamben:

The understanding of the Hobbesian mythologeme in terms of contract instead of ban condemned democracy to impotence every time it had to confront the problem of sovereign power and has also rendered modern democracy constitutionally incapable of truly thinking a politics freed from the form of the state.

(1998: 109)

I think Agamben’s reading of Hobbes has much to recommend to it, however, I don’t think that he can lay claim to an authoritative reading of Hobbes. In fact, I don’t think we can definitively say whether Hobbes focuses on the ban or the contract because I think he is ambivalent on this question. There are several ambiguities in Hobbes which centre around these questions. Thus, on the constitution of a sovereign Hobbes says:

The only way to erect such a common power ... is, to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will.

(1998: 114)

But this can only be done when the great multitude ‘by mutual covenants one with another, have made themselves everyone the author’ (Hobbes 1998: 114). Immediately, there is an ambivalence as to what precisely has constituted the sovereign. Either, we all start with a right to do something in the state of nature and we all agree to lay down this right vis-à-vis the sovereign, whilst the sovereign retains it or we have all authorised the sovereign and he bares our person. Nigel Simmonds has pointed out that here the two traditions of jurisprudence (natural law and positivism) vie with each other. For if the former conception is correct, then the sovereign’s authority (and as such law’s bindingess) is a right of pure coercion, since only he retains the right to use it. Yet in the latter conception we have a duty to obey, since the commands of the sovereign are our commands. Here, one can see the tension between the ‘ban’ and the ‘contract’. Indeed, in a single paragraph Hobbes effaces transferring and renouncing a right:

And lastly the motive, and end for which this renouncing, and transferring of right is introduced, is nothing else but the security of a man’s person, in his life, and in the means of so [88] preserving life, as not to be weary of it. And therefore if a man by words, or other signs, seem to despoil himself of the end, for which those signs were intended; he is not to be understood as if he meant it, or that it was his will; but that he was ignorant of how such words and actions were to be interpreted.

The above tension becomes especially apparent in Hobbes’ discussions of a ‘right’ as against the sovereign and the ‘duty’ to obey. Despite, his partial argument that the sovereign springs from covenant Hobbes has quite a few strategies for avoiding the implications of this argument. His first – and for our purposes least interesting – strategy is to argue that the citizens have covenanted with each other and not with the sovereign, which hadn’t existed at that point, as such the sovereign cannot breach he covenant. His second, more interesting, strategy is to argue:

Besides, if any one, or more of them, pretend a breach of the covenant made by the sovereign at his institution; and others, or one other of his subjects, or himself alone, pretend there was no such breach, there is in this case, no judge to decide the controversy it returns therefore to the sword again; and every man recovereth the right of protecting himself by his own strength, contrary to the design they had in the institution.

(1998: 116)

This relates back to Hobbes’ idea that covenants are only binding when there is a public power to enforce them. But of course, this begs the question, where does the bindingness of the original covenant come in? These strategies, whilst designed to minimise the impact of contractual reasoning, nonetheless remain rooted in the idea that the sovereign springs from covenant. Hobbes also deploys other strategies, which seem more rooted in the ‘ban’:

To resist the sword of the commonwealth, in defence of another man, guilty, or innocent, no man hath liberty; because such liberty, takes away from the sovereign, the means of protecting us; and is therefore destructive of the very essence of government.

(1998: 145)

These strategies are very closely related to the ambit of sovereign power and the ‘right to resistance’. Hobbes’ deals with this in an infamous manner, arguing:

[B]ecause every subject is by this institution author of all the actions, and judgments of the sovereign instituted; it follows that whatsoever he doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth anything by authority from another doth therein no injury to him by whose authority he acteth: but by this institution of a commonwealth, every particular man is author of all the sovereign doth: and consequently he that complaineth of injury from his sovereign, complaineth of that whereof he himself is author...

(1998: 117)

(Again, the strategy outlined at p.145 is complementary to this). Yet Hobbes also realises he has to qualify this by arguing that a man always has the right to defend his own life and the conditions of his life. I don’t think that these ambiguities in Hobbes can simply be read off as inconsistencies or as varying attempts at justification for his overall project (as I imagine Agamben has to). Instead, I think this tension in Hobbes work – between contract and ban – actually tells us something quite interesting about liberalism. Now, there are lots of liberals who don’t think Hobbes is part of their canon. I don’t want to dwell too much on this although MacPherson, Arendt and Strauss do an excellent job of placing Hobbes within the bourgeois liberal tradition. I think at the very least Hobbes has to be acknowledged as pre-figuring the liberal tradition and his individualistic, rational ‘citizens’ are the bedrock of subsequent liberal justifications for the state.

A Little Locke

Indeed, in the case of Locke, what we see is very similar problems to those with Hobbes, but with only the weakest solution to them. Nowhere is this more evident than in his attempt to reason out how it is we can consent to government if we were not part of the original compact to it:

But since the government has a direct jurisdiction only over the land, and reaches the possessor of it, (before he has actually incorporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed...

(Locke 1689: § 121)

Here, Locke comes right up against the tension in Hobbes. Indeed, from the perspective of the person who wants no part in the ‘social contract’ the government looks to be made of ‘pure coercion’ and the fact that ‘he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed’ is unconvincing. Similarly, when the government breaches its social contract ‘they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty’ (Locke 1689: §222). The practical result of this – of course – is no different to that which Hobbes outlines, we revert to a situation of the sword against the sword, a situation in which ‘right’ no longer seems particularly important.

Liberalism

In searching out what Hobbes ‘really’ means and moving decisively in favour of the ‘ban’ I think Agamben misses the fact that this ambivalence is a structuring tension in liberalism. This can be seen in the fact that – right from the get go – the central problematic of liberal political theory is working out how to justify the deployment of coercion in terms of freedom and equality. However, this doesn’t just operate at the level of theory; it is – for example – particularly evident in the discourse on terrorism and security. The way that the argument typically rolls around is something like this – we need to protect our liberties and some people are threatening our liberties – so what we need is security, thus as Marx notes (in a very prescient piece of analysis):

Security is the supreme social concept of civil society; the concept of the police. The whole society exists only in order to guarantee for each its members the preservation of his person, his rights and his property. It is in this sense that Hegel calls civil society “the state of need and of reason...The concept of security is not enough to raise civil society above its egoism. Security is, rather, the assurance of its egoism.

(1978: 43)

However, it soon becomes apparent that the very rights we seek to protect are in fact protecting those who would take them away from us. So here, we have to breach, or abrogate those rights, so as to protect them. This, as Marx says, results in a rather odd position:

This amounts to saying: the right to liberty ceases to be a right as soon as it comes into conflict with political life, whereas in theory political life is no more than the guarantee of the rights of man – the rights of the individual man – and should, therefore, be suspended as soon as it comes into contradiction with its end, these rights of man.

(1978: 44)

But what Marx missed was the way that this concrete manifestation of a general tension is resolved in a particularist manner. Because in practice ‘these rights of man’ are not often wholly suspended (although there are of course exceptions to this), the rhetoric of depriving rights to protect rights is always directed at particular groups. This is true both nationally and internationally. So nationally, what you see is certain groups – communists, Muslims etc. – branded as a threat to ‘our liberties’. As such it becomes justified to deprive these groups of some of these liberties and – in the case of those against whom there is greater ‘evidence’ – many of their liberties. It is also true internationally, with certain states labelled as rogue states etc. on the basis of their persistent rights violations against whom – at least in some quarters – seemingly non-liberal actions become acceptable.

This contradiction leads to the most wonderful rhetorical contortions and faux rage (witness the response of Decents to Amnesty International reports and their attempts to wriggle out of Guantanamo etc.). Liberal states – by virtue of the fact that they are protecting rights – are justified in violating those very rights that claim to protect by the fact that others are violating those same rights rights. But again, this general claim has a particularist resolution, it is no accident that this reasoning is co-extensive with imperialism. Indeed, the recent Georgia-Russia scuffle is revealing in this regard, Russia adopting this rhetoric was roundly condemned but note that much of the condemnations was not that Georgia had not violated rights, rather the claim was that Russia had violated Georgia’s territorial integrity – Russia was not even considered as having the capacity to exercise the right of ‘humanitarian intervention’.

Law

In touching on liberalism I have, of necessity, touched on law. Law is usually absolutely central to liberalism and as such is the immediate repository of its contradictions. Indeed, the initial contradiction – contract or ban – is deployed precisely to justify the coercion that is embodied in the law. Law is also immediately active in the question of rights (as it is what embodies them) and security (as it is what ‘creates’ it). As Pashukanis argued, law is also – in terms of its form, immediately subject to this tension:

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”

(1980: 70)

The form of law – recognising abstract, formal equality – is certainly (to some degree) a form of ‘freedom’, but this is always counterposed to the violent coercion that is part and parcel of the law.

Structure

I think these brief considerations of the law point to the material source Hobbes equivocation between the ‘ban’ and the ‘contract’ (and liberalism’s subsequent ambiguity) – namely capitalist property relations. Capitalist property relations combine freedom with subordination, on the one hand everyone in capitalist society is considered a potential property and as such, all are represented as equal to each other. On the other hand, the substantive relations that these individuals enter into – particularly the employment relation – are relations of subordination and domination. Furthermore, although individuals can choose their employer they cannot survive without working. Whilst individuals are formally able to become capitalists in practice this is very difficult and for a capitalist class to exist there must always be a working class. Thus, capitalist property relations are composed of both the ban and the contract in an unstable mix; liberalism, which is the purest ideological expression of capitalism mirrors this structure, as does capitalist society at large.

In neglecting the ambivalence of Hobbes’ work Agamben therefore tends to obscure the very real problems with which Hobbes in grappling.

(Sorry this was so quote heavy, the old synapses have been firing so hopefully some more stuff soon – and definitely my impressions on this Glasgow thing I’m going to in December; also, I was very tired when I wrote this)

References

Agamben, Giorgio (1998) Homo Sacer: Sovereign Power and Bare Life, Stanford University Press

Hobbes, Thomas (1998) [1651] Leviathan, Oxford World Classics

Locke, John (1689) Two Treatises on Civil Government

Marx, Karl (1978) [1843] “On the Jewish Question,” in R. Tucker ed., The Marx-Engels Reader. New York: W.W. Norton & Company

Pashukanis, Evgeny (1980) [1924] “General Theory of Law and Marxism,” in P. Beirne and R. Sharlet eds., Pashukanis: Selected Writings on Marxism and Law, London: Academic Press

What's breaking into a bank compared with founding a bank?

2008-09-18T01:10:00.008+01:00

"What's breaking into a bank compared with founding a bank?"

What might this Brechtian phrase say about the law? On the one hand we might read it as a simple critique of the way that the class element enters into it. So what we say is - here are two types of act that 'hurt' people. But - because of the class interest that gets expressed through the law - only the interests of the capitalists is protected. Whilst I would argue that critique is probably true (although it needs work obviously - how is the class interest expressed through the law? is this a necessary expression? etc.). In a way, my observation is linked to this. What I argue is that this 'class interest' is able to be expressed through the law because of its structure.

This is because the law seems to have real trouble encompassing structural or systemic violence. It is structured such that a legal result can only ever address individual acts and situations (through the medium of the legal judgment) not structures and systems. Indeed this is an issue I have addressed before. What is also interesting is the ideological function of this feature of the law. To some degree Susan Marks talks about this under the rubric of justificatory exceptionalism. Essentially, the law (and legal judgments) tend to take people's general grievances with the system and transform them into particular, resolvable problems. This is only going to be a short post, but an interesting (if rather long) illustration of this can be found in Marcuse’s One Dimensional Man, whilst he is referring to the problem of language, I think the same applies to law (not that I am suggesting some kind of connection between the two):

In investigating the walkers' complaints about walking conditions and wages, the researchers hit upon the fact that most of these complaints were formulated in statements which contained “vague, indefinite terms,” lacked the “objective reference” to “standards which are generally accepted,” and bad characteristics “essentially different horn the properties generally associated with common facts. In other words, the complaints were formulated in such general statements as “the washrooms are unsanitary,” "the job is dangerous,” “rates are too low.”

Guided by the principle of operational thinking, the researchers set out to translate or reformulate these statements in such a manner that their vague generality could be reduced to particular referents, terms designating the particular situation in which the complaint originated and thus picturing “accurately the conditions in the company.” The general form was dissolved into statements identifying the particular operations and conditions horn which the complaint was derived, and the complaint was taken care of by changing these particular operations and conditions.

For example, the statement “the washrooms are unsanitary” was translated into “on such and such occasion I went into this washroom, and the washbowl had some dirt in it.” Inquiries then ascertained that this was “largely due to the carelessness of same employees,” a campaign against throwing papers, spitting on the floor, and similar practices was instituted, and an attendant was assigned to constant duty in the washrooms. “It was in this war that many of the complaints were re-interpreted and used to effect improvements.”

Another example: a worker B makes the general statement that the piece rates on his job are too low. The interview reveals that “his wife is in the hospital and that he is worried about the doctor's bills he has incurred. In this case the latent content of the complaint consists of the fact that B's present earnings, due to his wife's illness, are insufficient to meet his current financial obligations.”

Such translation changes significantly the meaning of the actual proposition. The untranslated statement formulates a general condition in its generality ("wages are too low"). It goes beyond the particular condition in the particular factory and beyond the worker's particular situation. In this generality, and only in this generality, the statement expresses a sweeping indictment which takes the particular case as a manifestation of a universal state of affairs, and insinuates that the latter might not be changed by the improvement of the former.

Thus the untranslated statement established a concrete relation between the particular case and the whole of which it is a case – and this whole includes the conditions outside the respective job, outside the respective plant, outside the respective personal situation. This whole is eliminated in the translation, and it is this operation which makes the cure possible. The worker may not be aware of it, and for him his complaint may indeed have that particular and personal meaning which the translation brings out as its “latent content.” But then the language he uses asserts its objective validity against his consciousness – it expresses conditions that are, although they are not “for him.” The concreteness of the particular case which the translation achieves is the result of a series of abstractions from its real concreteness, which is in the universal character of the case.

It is a shame that Marcuse never considered the role of labour law in this process, but the particular structure of labour tribunals helps illustrate how his observations operate within the law. I am tempted also to link this with Lukacs position on the role of totality. If the revolutionary insight of Marxism lies in the perspective of totality, then it is quite interesting that law continually detolalises. Indeed, I would argue that understanding this is vitally important if we wish to make any consideration of law in revolutionary strategy. For whilst the law may be used to 'defend' people, it does not seem capable of effecting systemic change. In fact it may positively militate against such change.

Letting Law off the Hook

2008-09-18T01:10:00.006+01:00

[I am aware this post is fairly terrible, but I’ve been trying to write it for ages and so I’m just putting it out as is, so that I can move onto more productive things]

I was chatting with China Miéville a few weeks ago and we got talking – for a little bit – about Agamben. China mentioned that when Homo Sacer first came out he was very excited about it but that as time went by he grew dissatisfied by the way that his conception of the ‘state of exception’ seemed to ‘excuse’ law of its complicity in processes of domination. I mention this not in order to name drop but because I don’t want this post to seem like I’m claiming all the credit for what follows.

Anyway, I found this argument interesting and decided to re-read Fleur Johns’ article on the subject ‘Guantanamo Bay and the Annihilation of the Exception’[1], here I want to engage with some of the points made by Johns and make a more general consideration of Agamben’s argument. The heart of the problem identified by critics such as Johns is that in choosing to focus on and characterise certain situations as ‘states of exception’ in which there is no law Agamben misses the way that law is complicit with relationships of extreme exploitation and domination.

Johns takes the example of Guantánamo, which Agamben has characterised as a modern example of the state of exception made permanent. Johns notes that if we examine the regime at Guantánamo what we actually find is an excess of law:

Far from a space of ‘utter lawlessness’ then, one finds in Guantánamo Bay a space filled to the brim with expertise, procedure, scrutiny and analysis. Amid the work of the Military Commissions, the Administrative Review Board, the Combatant Status Review Tribunal and the other inquiries mentioned above, it is not upholding the rule of law that seems tricky. Rather it is the possibility of encountering the yet-to-be governed exception that seems difficult to contemplate.[2]

This point doesn’t just extend to Guantánamo however. The war on terror is often characterised as one giant exception – in which a number of individuals exist in a lawless zone, where anything can be done to them. But this does seem to miss the way in which strenuous efforts have been made to justify these actions legally (torture is a very good example here) and the role that imperial lawyers have played in justifying the actions of (particularly) the United States. Of course, it might be objected that although there are claims of legality these remain just that – simply claims. I think this is a difficult argument to mount. It relies on being able to distinguish between ‘true’ and ‘false’ assertions of legal argument. Furthermore, one of the key characteristics of a state exception seems to be that it is proclaimed as such.

This is not to say that – on some level – doesn’t represent an ‘exception’ to the ‘normal’ functioning of the rules. However, crucially, what seems to have happened is that the rules are relaxed and a new, more permissive set of rules apply in their place (so the constitution is displaced for some other standard in the US case – although following the recent Supreme Court decision this is doubtful). Of course Agamben’s vision of the exception is one in which legal norms are suspended. I want to return to this theme later, as I think it is symptomatic of Agamben’s failure to read Schmitt (and theory in general) juridically.

Johns argues that Agamben’s work reproduces the typical liberal posture taken in relation to Guantánamo. Firstly, it characterises the regime as a ‘vacuum’ (which is taken as per se negative). Next two strategies are pursued which help affirm the ‘nobility’ of the law – one which says the law already covers this situation and one which argues the law has to be recast in the War on Terror.[3] The point is that this liberal position seeks to ‘excuse’ the law by denying its operation in Guantánamo. We should be wary of pursuing this argument in relations to Agamben, because I don’t think he falls foul of it. Agamben characterises the exception as necessary to law, as that which allows it to exist and the only way in which law is able to encompass bare life. This means that whilst he excludes law’s operation from Guantánamo, he doesn’t leave them unconnected, instead he argues that the existence of Guantánamo (and places like it) are a necessary corollary of the existence of the law. This being said, there still seems to be a certain sense in which Agamben’s arguments can be ‘hijacked’ by law’s advocates.

Agamben and Schmitt

At this point it seems wise to enquire how it is that Agamben manages to mischaracterise Guantánamo. I think one of Agamben’s real problems here is his failure to properly grapple with what Schmitt has to say about exceptions and norms. To my mind, one particularly glaring example of this can be found in the following passage:

The camp is the space that is opened when the state of exception begins to become the rule. In the camp, the state of exception, which was essentially a temporary suspension of the rule of law on the basis of a factual state of danger, is now given a permanent spatial arrangement, which as such nevertheless remains outside the normal order.[4]

In Agamben’s narrative it is only with the coming of the Nazi regime that the exception is made – somehow – permanent, before this the exception was simply a ‘temporary suspension of the rule of law on the basis of a factual state of danger’. In a similar vein he argues:

The sovereign no longer limits himself, as he did in the spirit of the Weimar constitution, to deciding on the exception on the basis of recognizing a given factual situation (danger to public safety): laying bare the inner structure of the ban that characterizes his power, he now de facto produces the situation as a consequence of his decision on the exception.[5]

Seemingly then, Agamben argues that the liberal conception of the state of exception – as a suspension of the law made subject to a factual determination – is actually an accurate description until the advent of the Nazi regime (or rather the conditions that surround it). But Schmitt never saw things this way. For Schmitt the liberal conception of the state of the exception was never correct, so for example:

The decision on the exception is a decision in the true sense of the word. Because a general norm, as represented by ordinary legal prescription, can never encompass a total exception, the decision that a real exception exists cannot therefore be entirely derived from this norm.[6]

Thus, Schmitt denies that the state of exception was ever simply ‘triggered’ by a factual situation which is merely ‘recognised’ by an authority. So against Agamben Schmitt sees no break in continuity when the sovereign ‘facto produces the situation as a consequence of his decision on the exception’:

[S]overeignty (and thus the state itself) resides in deciding this controversy, that is, in determining definitively what constitutes public order and security, in determining whether they are disturbed and so on.[7]

So right from the get-go we can see that Agamben diverges from Schmitt (and towards liberalism). Of course, it might be argued that this doesn’t really matter, since Agamben is clear that in the present day, Schmitt’s interpretation is correct. But I think that one ought to bear this in mind in the discussion that follows. This is because there is another – more important – sense in which I would argue that Agamben misunderstands Schmitt. This lies in his failure to fully consider the juridical aspects of Schmitt’s work (this is not a mistake unique to Agamben, as I have previously argued, it has marked the general reception of Schmitt).

It’s quite difficult to think how to phrase this (this whole post has been very difficult to phrase), so I think I’ll begin with a somewhat schematic depiction of Agamben’s position. In Agamben’s work there exists a basic dichotomy between the exception (a zone where there is no law) and ‘the rule of law’. In the latter case, what Agamben seems to envisage is a fairly simple liberal picture, where the law – as a body of publically ascertainable rules – is applied to situations in a predictable and determinate way.

But this dichotomy is something that Schmitt is at pains to deny. In her article, Johns proposes a ‘heterodox reading’ of Schmitt in which the ‘decision’ is not simply a feature of the state that decides on the state of exception, but rather is something that is constantly at play whenever a law is invoked in a particular case. Having not read much secondary literature on Schmitt I don’t know if this is a ‘heterodox’ reading, but if it is one, then I think the orthodoxy is plain wrong. The particular reading of Schmitt – whereby every application of a norm is a ‘decision’ which cannot be circumscribed by the norm seems to me to be the most straightforward reading Political Theology. Here, whilst the decision on the state of exception is an important one, its particular character is derived from the general impossibility of circumscribing decisions by norms. Only through this reading can we explain statements like:

[T]he conception of personality and its connection with formal authority arose from a specific juristic interest, namely, an especially clear awareness of what the essence of legal decision entails. Such a decision in the broadest sense belongs to every legal perception. Every legal thought brings a legal idea, which in its purity can never become reality, into another aggregate condition and adds an element that cannot be derived either from the content of the legal idea or from the content of a general positive legal norm that is to be applied. Every concrete juristic decision contains a moment of indifference from the perspective of content, because the juristic deduction is not traceable in the last detail to its premises and because the circumstance that requires a decision remains an independently determining moment.’[8]

Thus, in Schmitt, what we have is a very early version of the indeterminacy thesis – which denies that ‘legal reasons’ are able to explain legal decisions. As a corollary to this, in the ‘application’ of law to any set of facts it is impossible to justify a number of different of results. This is Guantánamo, it is not a suspension of the law, whilst it is an exceptional application of the law it is still an application of the law, rather than its suspension. It is true that Agamben does take some cognisance of Schmitt’s argument on these matters. Thus, he notes (around page 170 or so) that in State, Movement People, Schmitt invokes the increasing use of indeterminate standards (the reasonable man etc.) as an argument for indeterminacy of law. But this misses the radical nature of Schmitt’s critique, which denies any possibility of liberal nomativism. It is also true that Agamben does seem to argue that the Nazi regime has inaugurated a period in which the state of exception is able to spill out into society itself. But again, this doesn’t seem to engage with Schmitt’s argument that there was never a period in which liberal normativism actually operated. Furthermore, in arguing that indeterminacy is rooted in the ‘spread’ of the state of exception (and thus a zone of ‘indistinction between law and fact) Agamben fails to understand that indeterminacy is rooted in the law itself.

What does this mean?

Of course it could be argued that in actuality what I am doing is simply pedantic nitpicking. But I think it would be a mistake to characterise as such. If, as I have argued, Agamben has mischaracterised Guantánamo Bay and – more to the point – this mischaracterisation extends to his analysis of the state of exception more generally, then definite theoretical and political consequences flow from this (no matter that he acknowledges the general ‘blurring’ of fact and law).

Firstly, as Johns notes, in choosing to focus on the state of the exception, as opposed to law-governed situations Agamben emphasises spectacular violence as opposed to concrete violence:

By assuming the affect of exceptionalism, the normative order of Guantánamo Bay has soaked up critical energies with considerable effectiveness, for it is the exception that rings liberal alarm bells. Accordingly, the focus falls on less than 600 persons being abused in Cuba, rather than upon the millions subjected to endemic sexual, physical and substance abuse in prisons across the democratic world. In a similar way, attention is captured by the violation of rights of asylum-seekers, rather than by the over-representation of immigrants in the most informal and vulnerable sectors of the contemporary economy.[9]

This point can clearly be deepened. In insisting of the ‘exceptional’ character of Guantánamo (and other states of exception) Agamben does not view it as on a continuum with ‘law-governed’ situations but rather sees it as a break. In this way it is difficult for Agamben to see the continuities between Guantánamo and a whole host of other situations. Linked to this is the fact that a nice rhetorical move can easily be made here. In denying that places like Guantánamo are governed by law, we seem to implicitly be saying ‘if this were governed by law things would be all right’ – but is this really the case? In a nutshell, it is quite worrying that focusing on the ‘state of exception can quickly slide into ‘justificatory exceptionalism’. Indeed, in this way Agamben seems to reproduce the basic assumptions of liberal legalism. As I have previously argued, the law has great difficulty in dealing with structural or systemic violence. In choosing to focus on the ‘exceptional’ breach of the law Agamben seems to reproduce this problem.

Linked to this point is the fact that Agamben’s position seems to give the law a certain dignity that (I would argue) it doesn’t deserve. As I have previously noted, lawyers have been very important on the war on terror. One need only think of the torture memos and the general hue and cry over Ashcroft to see this. Bearing this in mind, does it really make sense to simply ignore these invocations of legality? Here, Agamben seems to reproduce the liberal lawyer’s ‘anxiety of influence’. Here, when legal argument is used to justify that which is illiberal or uncongenial to their politics liberals typically argue that it is a ‘bad faith’ deployment of law, or not law at all. As Susan Marks notes:

When we treat a phenomenon like Guantánamo Bay as an instance of lawlessness or, in the widely circulating phrase, a ‘legal black hole’, we make it seem like a legal mystery. Well, Guantánamo Bay is certainly a place in which people have few rights, but it is no legal vacuum or mystery. Its basis in legal stipulations (constitutional law, special regulations, extradition arrangements) is, or should be, plain for all to see. Conversely, when we treat international law as a redemptive force that could save the world if only it were properly respected and enforced, we obscure the possibility that international legal norms may themselves have contributed to creating or sustaining the ills from which we are now to be saved. We also mischaracterize the processes of emancipatory change as redemption or deliverance. And we weaken our capacity to criticize international law, and make it more useful to those by whom liberatory processes are actually carried forward.[10]

I'm quite tempted to say that many of these problems come from Agamben not taking law seriously enough. Throughout the entire book no attempt is made to say what exactly Agamben means by 'the law'. This becomes very problematic, becuase in his vision the state of exception is the absence of law. I get the feeling that (as above) Agamben is falling back on a kind of generic/vulgar positivism, whereby the law is the public edict of the state. But taking this position means he fails to make the connection between law in general and 'the decision'. This in turn seems to leave him unable to see how we might come to a decisionistic conception of law. This failure means he has little choice but to characterise Guantanamo as a state of exception, because it is clearly far away from the vulgar positivist vision.

However, rather unfortunately, 'law-governed' situations themselves are hardly captured by this vision (it is no accident that historically positivism was always articulated within a normative political project - they weren't just 'describing' law but aiming to reform it, hence positivists were always hostile to judicial interpretation and sought to 'eliminate' it both theoretically and practically, but shorn from this political purpose such a vision makes little sense, hence Schmitt's critique), which makes Agamben's claims as to Guantanamo constituting a permanent spatial exception looking pretty, well, wrong. With a theory of the legal form in place, Agamben might not have made this move.

Ok, I just need to end this horrible post.

[1] (2005) 16 European Journal of International Law 613-645

[2] Ibid . at p.619

[3] Ibid., p.622

[4] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, (1998) Stanford University Press p.169

[5] Ibid., p. 170

[6] Carl Schmitt, Political Theology, p.6

[7] Ibid., p.9

[8] Ibid., p.30

[9] Johns, op cit, p.629

[10] Susan Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’, (2006) 19 Leiden Journal of International Law

An idea

2008-08-29T10:34:00.003+01:00

Although I'm probably talking to myself, I thought I'd throw this out here. Last night I was reading through Larry Solum's Legal Theory Lexicon and it struck me that there isn't really anything comparable for left/critical legal theory. I think there's an interesting project to be found in giving basic exopsitions of a bunch of different schools/phenomena/disciplines from a critical/left theoretical perspective. Of course, I wouldn't think about doing this sort of thing on my own, but it strikes me that there are people out on the web who could do this sort of thing - Red Wombat is well-versed in legal theory, LWC could obviously do a lot with criminological/crime issues and Phil would be the obvious choice as regards anti-terrorism etc.

Of course this is probably going to go nowhere, but could perhaps be an example of some of the interesting stuff blogs can produce.

(Really) Agamben and Pashukanis

2008-08-28T21:04:00.003+01:00

Agamben (emphasis mine):

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.

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.[1]

Pashukanis:

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) …

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).[2]

Which links nicely back to the introduction to this blog I wrote over three years ago(!):

[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.

[1] Homo Sacer, pp.26-27

[2] General Theory of Law and Marxism, p.110

Agamben (but not really)

2008-08-27T15:54:00.000+01:00

Of late I have been – rather slowly it has to be said – making my way through Giorgio Agamben’s Homo Sacer[1]. 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?[2]

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’[3]. 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.[4]

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.[5]

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[6]) 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[7]. 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.[8]

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.[9]

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.

[1] 1998, Stanford University Press

[2] Ibid., p.6

[3] “Preface to the Second Russian Edition” in Law and Marxism: A General Theory, (1978) Inklinks

[4] Richard Kinsey, “Marxism and Law: Preliminary Analyses” (1978) 5 British Journal of Law and Society 202, at p.218

[5] General Theory of Law and Marxism, p.70

[6] Concept of the Political, (1996) Chicago University Press, p.22

[7] 2005, Cambridge University Press

[8]Ibid., p.189

[9] “The Politics of International Criminal Justice”, p.7

[insert clever refernce to Georgia]

2008-08-14T17:29:00.004+01:00

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?[1]

And somehow I have managed to go on and on and on again – curses!

(If anyone wants some light reading about self-determination they can feel free to request a copy of my LL.M. thesis)

[1] China Miéville addresses these issues very well in Between Equal Rights