Critical legal theory and cognitive dissonance

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

Right-wing Pashukanisites

Scott Newton had a lot of interesting things to say at Glasgow (and coined some very useful terms and concepts). One of the dangers he warned of is the ‘right wing Pashukanisites’, these are the people that understand the close relationship between law and capitalism, and the contingency of the state to law. But they use this understanding to argue for a withdrawal of the state from social life and widespread deregulation and privatisation. It’s true that there is a curious affinity between Pashukanis and (what might be broadly termed) classical liberalism, Nigel Simmonds has a very interesting take on this in ‘Between Positivism and Idealism’ (1991 50 Cambridge Law Journal 308):

The relationship between law and social relations is, then one of symbiosis. Yet the basic patterning of law runs from bottom to top. Contrary to positivism, which is inclined to suggest that the texts and the sources of law come to shape a formless social world, an adequate view should see the institutions of private law as reflecting (but systematising) the informal texture of social life, while formal criteria of validity and formal provisions for legislative and adjudicative power stabilise the stabilisers. Law in large part reproduces and confirms the structure of society.

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

The extent of the resemblance between the somewhat conservative Hayekian view of law that I have sketched, and the Marxist view, is further evinced by the work of Pashukanis. Like Hayek, Pashukanis portrays law as emerging spontaneously from practices of dispute resolution, and sees the positivist emphasis on norms and authority [322] as a delusion arising from failure to grasp the priority of relations over formal norms. Again like Hayek, Pashukanis sees private law as the central core of the legal system, in relation to which public law and constitutional structures of authority are secondary and parasitic.
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.

Some very scattered observations on Schmitt and equality

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

Now, I’ve always been very aware that reading Schmitt is not an unproblematic exercise, especially because the distinction between description and prescription (witness Telos). So one thing I always want to avoid is whitewashing Schmitt’s politics and denying that his political positions had any connection with his theoretical ones. That being said, I don’t really hold any truck with people who think that everything Schmitt said is tainted by association with his politics. Schmitt clearly has some interesting things to say about liberalism and (by extension) contemporary social life. Anyhow, blurbs aside, I was struck when I was reading this from the preface to the second edition:

[W]here a state wants to establish general human equality in the political sphere without concern for national or some other sort of homogeneity, then it cannot escape the consequence that political equality will be devalued to the extent that it approximates absolute human equality. And not only that. The sphere of the political and therefore politics itself would also be devalued in at least the same degree, and would become something insignificant ... Substantive inequalities would in no way disappear from the world and the state; they would shift into another sphere, perhaps separated from the political and concentrated in the economic, leaving this area to take on a new dis-[12]proportionately decisive importance. Under conditions of superficial political equality, another sphere in which substantial inequalities prevail (today, for example, the economic sphere) will dominate politics.
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.

Law, transgression and the Joker

So anyway, I was ambling around in my usual, thinking of random things and not doing very much productive when a thought struck me about the Dark Knight (the Batman movie). Basically I was thinking back to this rather awesome post, which is quite possibly the most interesting theory post produced on the Dark Knight. Whilst I do think the post is correct in its orientation (as an attempt to take the film seriouslyand not a cod ideology criticism piece) I do rather take issue with its characterisation of the joker as in some way productive of an alternative to the order of Gotham City. Anyhow, this links back to a discussion I had with a friend about the Dark Knight, we both thought there were interesting parallels to be made between the Dark Knight and Dostoyevsky’s Devils, with the Joker representing a kind of Pyotr Verhovensky, a nihilist whose only role is to expose the radical instabilities and hypocrisy of the existing order. And what has this to do with legal theory? Well I was reading International Law and the Poststructuralist Challenge by Akbar Rasulov (who is definitely someone to watch) and I was struck by this:

By melting the rigid structures of dogma, poststructuralism, on the one hand, rewards every reformist movement with a powerful know-how of unorthodox politics and, on the other hand, undermines every radical project in its sight whose performance requires time, planning, and discipline, by immediately turning all its anti-dogmatic arsenal against it. By romanticizing the practice of endless questioning and denouncing the act of closure as such, does poststructuralism not risk becoming just another strand of intellectual anarchoterrorism whose only real achievement is to inoculate the Established Order against any effective challenges from the left? (Rasulov 2006: 807)

Anarchoterrorist strikes me as precisely the right description of the Joker. At no point during the Dark Knight does the Joker actually attempt to articulate an alternative to the order of Gotham City. What he does do is go out to expose the Order’s contingency and ultimate instability – endlessly questioning it, as it were. But ultimately, this position doesn’t just fail to go beyond the law; it also remains within its limits. The Joker can only ever define himself in opposition to the law. The delight in continually breaching the law, showing up its limits, showing its contingency but doing nothing more evinces a certain theological, fetishistic attachment to the law, insofar as the ‘legal’ character of the law is his primary reference point (even if only to rail against).

This I think, can be said to be a danger that poststructuralists (and their ilk) might fall into. In constantly emphasising the limits of the law, deconstructing it, revelling in it, they remain enthralled by the law. There’s a great line from Pashukanis that I continually quote (I have a few of these it has to be said):

The struggle to overthrow and unmask the legalistic fetish of the system, against which the revolutionary struggle is conducted, is a quality of every revolutionary. This is obvious. Without this quality, the revolutionary is not a revolutionary. But, for the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault.
(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

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

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

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

Agamben (but not really)

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

Great Powers and Outlaw States: a Review (amongst other things)

A few weeks ago I finished reading Gerry Simpson’s Great Powers and Outlaw States[1]. This is a book that has gotten a lot of praise from a lot of people but I still think there are a lot of interesting things left to say about it. I also think this book flags up some broader issues with critical international legal theory, which I also want to deal with. Simpson’s book represents a critique of orthodox approaches to sovereignty and sovereign equality; essentially he aims to show ‘how sovereignty undergoes ceaseless modification and re-negotiation in the face of material forces in world politics (e.g. war), institution building, inter-disciplinary struggle and theoretical contestation’[2].

Simpson begins the book proper with an analysis of the concepts he will be deploying throughout. He starts with an examination of the mainstream doctrine of sovereign equality. Simpson argues that the centrality of equality to the international system is down to the linked processes of secularisation and decentralisation – processes which culminated at Westphalia (1648). Here, the old international law – a top down system based on the spiritual and temporal power of the Pope and the Holy Roman Empire – was rejected and in its place was proposed an order of independent states. Westphalia is then seen as providing the relationships that shape international law from then after. Simpson wants to modify this account; he argues that 1815 should be our central date. This was when European supremacy was codified in international law and asserted against the peripheries.

But before engaging tin this claim Simpson first seeks to refine what precisely is meant by sovereign equality. Simpson argues (correctly in many cases) that international lawyers fail to spell out exactly what they mean when they talk about ‘sovereign equality’. Typically (some) liberals have tried to analogise the sovereign states with the sovereign individual but this fails because there is no accepted domestic theory of liberal equality. Simpson supposes that we can only make two concrete suppositions about sovereign equality firstly that only states possess it (and by consequence it is an attribute of statehood) and secondly it operates only juridically (that is to say legally). But this still leaves us with the question as to what type of legal concept it is.

In order to inquire into this question Simpson first asks us to imagine sovereignty without equality. He argues that we can view sovereignty as simply a territorial ideal but not an organising principle. Here states would be communities organised into territorial units who could do whatever they want everywhere else. Simpson sees this as an unequal order of sovereignty (I’m not quite so sure about this myself, one could easily argue that juridically everyone here is equally free (or perhaps equally unbound by the law) any inequality produced would be factual), which has been historically called ‘absolute sovereignty’. This allows us to see what equality might add; a doctrine which emphasises liberty, security and coexistence – a form of sovereignty that is tempered by the sovereignty of others. From this Simpson argues that our conception of sovereign equality can be broken down into three elements – formal equality, legislative equality and existential equality.

Formal equality is where states are treated as equals before the judicial system, viz. equality before the law. This doesn’t say anything about the scope of rights, just that any rights states do enjoy must be ‘enjoyable’ in a judicial setting. Legislative equality has two meanings: firstly, it describes the idea that states should only be bound by those norms to which they consent and secondly it argues that in international law making no state should (in juridical terms) have more influence than another. Finally, there is existential equality which essentially is sovereignty as independence. Essentially, this type of equality argues that all states are equally entitled to choose their internal political, social and economic arrangements.

Counterposed to this equality is the central idea of Simpson’s book, that of legalised hierarchies. Hedley Bull characterised international society anarchical because it lacks a central sovereign, on this reading states exist in anarchy because of their sovereign equality. This problem also preoccupied it legal positivists who had become used to identifying law with identifiable, certain rules backed by centralised violence. Eventually, positivists simply dropped the requirement of a central authority and located violence in the form of self-help. When Simpson talks of legislative hierarchies he is not speaking of centralised law-making bodies, instead what he is talking about is status differentiation of states that doesn’t extend quite so far, as Simpson notes:

One might usefully compare two different legal systems here. The first is a system of non-anarchic hierarchy found in a centralised legal order (e.g. the United Kingdom’s legal system) the second is legalised hierarchy (e.g. the international legal order). These legal orders, in turn, can be contrasted with a political order in which hierarchy and anarchy cohabit the system but in which hierarchy has no legal significance (e.g. the state of nature...).[3]

According to Simpson there are two forms of legalised hierarchies that operate in international law these as legalised hegemony and anti-pluralism. Simpson describes legalised hegemony as:

[T]he existence within an international society of a powerful elite of states whose superior status is recognised by minor powers as a political fact giving rise to the existence of certain constitutional privileges, rights and duties and whose relations with each other are defined by adherence to a principle of sovereign equality.[4]

Thus, legalised hegemony refers to the fact that certain Great Powers are granted legal pre-eminence in international law. This – of course – tends to militate against legislative equality as described above. The above description discloses the four elements of legalised hegemony, these are a legal/constitutional basis, sovereign equality among the Great Powers, hegemony (in the classic sense) as imposed from above and consent to from below and the Great Powers acting in concert since they have an interest in the international system as a whole. Simpson argues that this was only able to arise around the time of the Vienna Concert system, as prior to that there had not been a multitude of Great Powers, instead there had usually been one hegemonic power, which exercised this power in its interests. Furthermore, he argues that material power is not enough, there needs to be a sphere of influence which is accepted by other states – this means that (as is often the case) cultural ‘power’ may outstrip military power. Finally, it is worth noticing the amount of importance Simpson places on the Powers acting in concert and having interests in the system as a whole. This means that he argues legalised hegemony did not operate during the Cold War (this is something to which I will return later, as I feel it creates a serious weakness in his work):

Legalised hegemony is distinguishable from superpower dominance in that the former requires a commitment to long-term collective action together with a formal constitutional validation of these collective goals and processes. The superpowers were not ‘Great Powers’ according to this definition. They did not exercise legalised hegemony through concert. They were the greatest powers in the system but they did not act responsibly in order to maintain the system through some sort of concert.[5]

The second type of legalised hierarchy that Simpson claims operates in international law is that of anti-pluralism, particularly liberal anti-pluralism. Simpson begins with a taxonomy of liberalism. Simpson argues that liberalism is structured by two very different strands. On the one hand there is liberal pluralism, or classical/modus vivendi liberalism. This position tends to say (internationally) that liberalism means we ought to tolerate – and indeed celebrate – difference in the internal political arrangements of states. This is of course reflected in the UN Charter and orthodox international law, which tends not to question a state’s political or humanitarian credentials (even if there have been trends against this). Contra this is liberal anti-pluralism or ‘the liberalism of certainty’ which can be ‘exclusive and illiberal in its effects’[6]. This form of liberalism takes liberalisms classic requirements equality, the rule of law etc. and insists that these values be universalised within states. Thus, liberal anti-pluralism tends to emphasise individual rights to democracy, with international human rights law serving as its ‘engine’. The debates about membership in the UN are said to reflect this tension. The way in which this is translated into international law is through the creation of criteria of membership (such as civilisation, democracy etc.) in international organisations and bodies. More specifically (and more on this later) Simpson argues that international law has been marked by the creation of ‘outlaw states’ against whom a differing legal regime is deployed. Obviously this form of legalised hierarchy tends to go against existential equality.

Simpson argues that legalised hegemony, liberal anti-pluralism and sovereign equality have been in a complex interaction ever since 1815. Simpson argues that sovereignty can only be understood as the combination and interaction of these elements in what he calls ‘juridical sovereignty’. He then goes on to see how these different types of legalised hierarchy have interacted historically.

The vast majority of Simpson’s work is then concerned with using this framework to interpret certain key moments in legal history. Simpson begins with an analysis of legalised hegemony. Firstly, he examines the 1815 Congress of Vienna. Here following the defeat of Napoleon a directorate of Great Powers sought to manage Europe and reformulate international law. This represented a repudiation of the Westphalian consensus, which although it lasted less than 50 years Simpson argues prefigured all the later developments. In his historical study Simpson shows how the Great Powers met in secret to decide the future of Europe. They set up a Concert which only included a small number of states (the Great Powers) who had ‘interests in wider Europe’. Equality also operated here, however. Firstly, many of the smaller states were expecting to have some kind of public forum in which equality operated. However, whilst these states did argue for equality they also constantly sought to differentiate themselves from other states and sit on the great committees. So there was a veritable ladder of different committees. Secondly, and somewhat paradoxically, the Great Powers realised that the only way to resolve disputes amongst themselves was through the application of formalistic sovereign equality thus:

A standard international relations account of hegemony suggests that equality is a fiction and hegemony is the expression of some underlying reality in the international order. In fact, hegemony appears to require the fiction of equality (albeit extended only to the hegemons themselves), in order to sustain it.[7]

International lawyers responded to this system in a number of different ways; fidelity, repudiation and equivocation. Thus, some erected a rigid divide between the legal and political sphere and argued that the Great Powers were only politically superior. This meant that Oppenheim had to characterise hierarchy as purely ritualistic, whereas others argued it was simply a breach of law. Others decided to abandon sovereign equality altogether, arguing that legalised hegemony was the only feasible way of building international organisations. Others tried to equivocate, usually making an argument like consent had rendered what was illegal legal.

Of course throughout this period there were counter-tendencies towards equality. Thus the Second Hague Peace Conference (1907) failed to create a Permanent Court for Arbitral Justice because the ‘smaller’ states (who were granted equal voting rights) refused to have any form of hegemony that wasn’t based on population. Of course this meant that when the world arrived at the Versailles Peace Treaty no one believed in ‘extreme equality’. Thus the peace negotiations tended to centre around the big three.

Again a similar process was repeated in the formation of the UN Charter. Here, some form of legalised hegemony seemed inevitable – and numerous justifications were advanced for it. Indeed the real question was not whether or not to entrench Great Power status but rather who would be classed as a Great Power. Simpson quite cleverly notes that whilst people call the Security Council ‘anachronistic’ today it was anachronistic right from the start. France and Great Britain could not really be equated to the US, the USSR or China in terms of raw power. Furthermore, as previously noted:

The Great Powers wanted privilege to follow power but only to a certain extent. They did not wish to have the enjoyment of these privileges subject to the continued possession of commensurate power. A norm of sovereign equality, then, created a level of artificial parity between the Great Powers themselves in the Security Council just as legalised hegemony ordered relations between the core and the peripheral states.[8]

Everyone knows however that equality also remained central to the United Nations Charter. The Great Powers felt it necessary to assuage the concerns of smaller states. These smaller states also attempted to weaken the power of the Security Council by attenuating the veto, modifying the membership, constraining the Council and enhancing the power of the General Assembly. However, it was only really the final strategy that was successful and even this was not particularly so.

The next part of the book addresses anti-pluralism and outlaw states. He begins by examining what is – to scholars of the relationship between colonialism and international law – familiar ground. Prior to 1815 Europe dealt with non-Europeans on the basis of legal and moral equality (I’d say this assertion is extremely problematic, especially following Anghie’s work) but after 1815 ideas of European superiority were entrenched into international law. Throughout the 19^th century sovereign equality was challenged by the idea that the European core should be differentiated from the non-European periphery – this was achieved firstly through the technique of Christianity and then through the technique of civilisation. The rationale of this was dual, firstly, Europe would be a full member of the family of nations and so would be entitled to a range of rights and privileges, secondly, the aim was to spread the European form of social order to the peripheries. Civilisation was a ‘usefully elusive’ standard to impose on the peripheries, the general idea was that a state would be civilised if it granted certain (classically European) rights to foreigners. Often this meant these states had to submit to a humiliating array of extra-territorial jurisdiction, unequal treaties and possibly intervention.

In the 20^th century, this standard underwent something of a transformation. Certainly, by the beginning of the period the standard of civilisation was becoming increasingly unstable, many of the peripheries had claimed to reach the standard. Whilst the colonies were dependent territories they were not in fact states; so there was an increasing equality for states even while some ‘people’ or ‘nations’ remained excluded. The two liberalisms clashed at both the Versailles Conference (for the League of Nations) and the San Francisco Conference (for the United Nations), essentially there were arguments as to whether or not to admit certain states. Ultimately, particularly in the case of the UN, what was chosen was the universal, pluralist option and the idea of standards for membership were rejected. UN membership became functional and agnostic. In terms of ‘criminalising’ state conduct and their internal social life it was another set of institutions:

At the end of the Second World War, the Versailles model was rejected in favour of a regime of individual responsibility. The Nuremberg Trials, then, were important as a method of punishing the major Nazi war criminals but they served another function by deflecting attention away from the criminal conduct of the state of Germany. So Kellog-Briand and the Covenant were used at Nuremberg to show that the Nazi High Command had committed crimes against peace but their application to Germany as a whole was thereby avoided.[9]

However, according to Simpson, this phase was to last less than half a century. Simpson then skips forward to the 1990s. Firstly, he examines the International Law Commission’s Draft Articles on State Responsibility. Here the idea of a ‘state crime’ was floated. Simpson argues that although this idea was formally rejected it has in fact been actualised in the practice of the Security Council. His particular focus is Iraq, which was subject (as we all know) to a rather harsh sanctions regime. Simpson notes that the sanctions regime was a quasi-penal one, which compromised Iraq’s status as a sovereign state. He further notes that such sanctions regimes become coextensive with the war on terror, so that any terrorist – outlaw – state could have its sovereign rights extremely curtailed. Simpson concludes that this created a ‘bifurcated legal order’:

The effect of all this is that a thin and fragile system of universal law applicable to all (liberal pluralism) is replaced by two highly developed legal domains. In one domain, the sphere of liberal transgovernmentalism or democratic peace, international law is more pervasive and has more bite than in the classical model. In the other domain, an incipient international criminal law is the mark of what will be a highly regulated sphere of intervention and intrusion. The ‘criminal’ outlaw state’s fate is much more likely to resemble that of the criminal or deviant in the contemporary state (subject to constant monitoring and occasionally arbitrary violence) than the traditional image of the outlaw cut loose from society. In the case of undemocratic states, engagement and exclusion (or a withdrawal of some benefits of the law) will tend to alternate.[10]

Of course this overview (although I admit it is rather a long ‘overview’ has only touched upon the debates. Simpson also considers Kosovo and the Holy Alliance and also has a pretty stimulating chapter on Afghanistan, where he brings together the threads of legalised hegemony and liberal anti-pluralism. However, if I go into this, my ‘overview’ could extend even further and I don’t think anyone wants that.

Analysis
Although I did like this book I have some real problems with it. I first want to consider my specific problems with the book, before going to consider how I think it exemplifies a certain trend in critical legal theory. So firstly, I want to look at Simpson’s definition of legalised hegemony, particularly his focus on ‘concert’. Thus, as noted above, Simpson emphasises the need for Great Powers to act ‘together’ and ‘in concert’, contrasting this to the system in the Cold War. As an immediate historical concern such a position seems a bit odd to me, Simpson constructs a timeline:

Legalised hegemony formalised (1945) --> Political hegemony (1946-87) --> Legalised hegemony realised (1987-98)

When you combine this with Simpson’s admission that the Vienna Concert system lasted for such a short time it does start to seem like he may have slightly overblown the importance of legalised hegemony. This is because legalised hegemony doesn’t really seem to have operated as Simpson envisaged very much in history at all. This point becomes even more worthy of consideration when it’s placed in the context of Marxist debates about imperialism and Empire. Simpson’s work does seem to align somewhat with the Kautsky-ite super-imperialism/Hardt-Negri Empire line of argument. I’ve always had my doubt about this type of analysis. Take for example the recent period of ‘legalised hegemony realised’, I assume that the starting point for this sort of analysis would always be Iraq (1991). Here, the Security Council was able to use its special security prerogatives to set up an invasion and sanctions regime. At the time it was argued that this represented a New World Order of cooperation between the Great Powers. Such an interpretation really seems to miss the point. At the time the USSR happened to be going through rather a painful time (and as I recall was bought off in some way) which meant that it couldn’t assert its might. Likewise Afghanistan, although it certainly took on the aura of unanimity, it seems obvious that no state at that particular time was going to object to the US doing something. Finally, there is Kosovo to consider. On one level Kosovo can be read as quite compelling evidence for the idea of legalised hegemony – insofar as humanitarian intervention is necessarily a right that accrues only the Great Powers. However, and Simpson acknowledges this, devoting a few chapters to it, Kosovo can’t simply be read in this way. Indeed Kosovo seems to have been either an attempt to articulate a new collective security system or simply a breach of the law.

What is particularly useful about the Kosovo example is that it gives us a gateway into the crux of my objections – namely that the Great Powers typically have divergent interests on particular issues and often have divergent interests about whether or not the present system is one of which they approve (on this point Nathaniel Berman has an excellent article[11]). This becomes especially relevant when we consider that Russia and China are on the Security Council. Russia and China are both countries that sit on the border between state and outlaw state – so they are accused of being reckless, rights-violators, undemocratic etc. and anti-pluralists consistently call for their exclusion from international legal life. This dynamic – the strife between Great Powers (or inter-imperialist rivalry as it used to be known) undermines Simpson’s claims somewhat and also represents an interesting avenue of exploration not taken.

Occasionally reading the book I was struck by a certain distaste for Simpson’s depiction of legalised hegemony. Whilst Simpson claims to make no normative assessment of legalised hegemony the words he sometimes uses do sometimes seem to approve of legalised hegemony. Thus, he often derides defenders of sovereign equality as ‘legalists’ or ‘idealists’, whereas advocates of legalised hegemony are called ‘pragmatists’ or ‘realists’. In some instances I think this loaded language misses the point. Whilst, it is true that some of the defenders of sovereign equality may have been legalists or idealists it is surely the case that a pragmatist can appeal to sovereign equality for good old-fashioned realist reasons. Thus, a Third World jurist (or any jurist from the peripheries) might appeal to sovereign equality not in the name of ‘the law’ but in the interests of his state, or as a particular strategy for progressive(?) purposes; Susan Marks has a great quote on formalism in this regard:

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?[12]

It would also be interesting to know what special role Simpson thinks legality plays in this process. If a state possesses political and cultural power, as well as consent from its allies and like-minded states, it is surely capable of projecting power and securing its interests informally or extra-legally. One wonders what precisely is the need for ‘legality’ here, why legalised hegemony is pursued instead of political hegemony, is this simply a matter of increasing legitimacy? Previously, I have tried to link a desire for legalised hegemony with declining hegemonic power, this would – I assume – be valid for some members of the Security Council. Equally, perhaps, we can argue that weaker powers seek to bind rising or stronger powers to them by coming together with them in a legalised alliance.

These considerations dovetail nicely into my broader critique of Simpson’s work. Before reading the book I discussed it with one of my lecturers, she described the book as ‘philosophically confused’. At the time I disagreed with this comment, I knew something of the conceptual apparatus Simpson deployed, and it seemed to me to be philosophically sound (indeed his deconstruction of liberalism I found to be quite philosophically astute). Having read the book I am forced to agree. Simpson argues that juridical sovereignty represents ‘a permanent tension within the present system; one that is unlikely to be resolved by anything less than a revolutionary change in international human relations.’[13] The problem with this statement is that Simpson has no basis on which to take such a position. Simpson has quite persuasively argued that juridical sovereignty recurs at numerous instances in international law but he hasn’t shown us why this is the case. The quote seems to suggest that Simpson thinks that the tension is one systematically thrown up by ‘international human relations’ but nowhere is this theme explored in the book. Personally, I am tempted to map this tension onto the Marxist vision of imperialism and international law. Thus, Marxists – like Miéville and Pashukanis – argue that international capitalism (viz. imperialism) throws up the legal form, which is a form of social regulation that deals with abstract formally equal (that is to say possessed of sovereign equality) subjects. However, simultaneously with this capitalism tends to concentrate wealth and military power into the hands of a few small nations. These nations are also compelled, by the internal logic of capitalism to struggle for new markets in the peripheries, secure resources (and to constitute some areas as the periphery). But this relationship leads to a struggle among these different nations, be it an anti-imperialist struggle, an inter-imperialist rivalry etc. In this way, the Marxist theory of imperialism throws up all the elements of juridical sovereignty – Great Powers, outlaw states and formal equality – and shows how they are combined in the legal form – through which these actors all engage in material struggle.

This keep of deep theoretical analysis, or materialism as I would call it, doesn’t really find a place in Simpson’s book. Instead what we see if an interesting conceptual apparatus, combined with in-depth description of a series of events. This particular form of investigation has become very popular with critical legal theorists in recent years. Thus, much of the work of TWAIL scholars consists of a conceptually informed historical study and Koskenniemi’s most-loved (Gentler Civilisations) is a historical work. In some ways this historical turn is to be appreciated, it has long been a weakness of Critical Legal Studies (particularly its US variant) that concrete historical study was abandoned for what Chase calls ‘literary theory’, this was a weakness which left them vastly over-estimating the role of the judiciary in social change:

Nothing is more striking about the literary criticism approach than the unwillingness or inability of its practitioners to provide concrete historical or sociological studies of instances where the “self-confidence” or “self-activity” of radical social movements (whether in the Americas, Europe, Africa, Asia or the Middle East) have actually been “crushed,” not by arduous working conditions or impoverization, not by the inability of civil society to impose civil rights and liberties against state power, not by police surveillance or death squads, not by famine or inadequate public health services, not by the dull necessity of economic reproduction, not by armed invasion, prison and torture cells, or “surgical air strikes” against villages and cities, but, rather extraordinarily, by the central target of the CLS critique: appellate judicial reasoning in the liberal mode.[14]

Whilst historical studies are very important, it is also necessary to ground these historical studies materially, so as to understand the material processes which shape history and lead to the recurrence of certain features. There are many reasons why I think such study is important. Firstly, from a purely intellectual standpoint, I think theoretical studies are more satisfactory. This is because they are able to explain things (insofar as they can be explained) rather than just ‘state’ them, or ‘arrange’ a series of facts. Secondly, many critical theorists have aspirations (although perhaps they are better described as delusions) of providing intellectual and practical resources for activists, subaltern groups etc. Thus, it is a consistent aim of TWAIL scholars to help reclaim the law, or articulate the demands of the third world in the law and so on. However, these demands tend to be coupled with a rather devastating depiction of the historical complicity of law and colonialism. Surely then, it is necessary for these scholars to spell out the precise nature of the relationship between law and colonialism and explore how it is that colonial themes constantly recur in international law. If it is the case that there is some structural connection between the two (as I would contend there is) then activists have to be very careful as to how they use international law. Indeed a structural critique of the law may preclude law’s use by progressive groups. Conversely, if it is shown that law and colonialism merely coexist, and it is simply the case that the powerful ‘force’ colonialism into the law, then it may be that activists should take up international law and contest it with all their might. But the point is that unless the theoretical dimension is taken up again critical scholarship can provide no accurate guide to those who would seek to use the law.

I should say that I really enjoyed this work, and think it is a very valuable piece of scholarship. But whilst I think historical study is important, I think such study needs to be coupled with deep theoretical reflection that is able to explain why it is that certain patterns recur in history. This is why I think the resurgence of Marxist, Marxian and Marxisant theories of international law is so vital, so interesting and so important.

---

[1] 2004 Cambridge University Press

[2] p.11

[3] P.66

[4] P.68

[5] P.75

[6] P.78

[7] P.110

[8] P.174

[9] P.273

[10] P.314

[11] Nathaniel Berman, “Legitimacy Through Defiance,” (2005) 23 Wisconsin International Law Journal 93

[12] Susan Marks “International Judicial Activism and the Commodity-Form Theory of International Law,” (2007) 18 European Journal of International Law 199, at 209

[13] P.86

[14] ‘The Aporia’s of Critical Constitutionalism’, Anthony Chase, (1987) 36 Buffalo Law Review 403