Martti's materialism?

Well, to those of you who still read this (and hopefully those who check up once in a while) I think I’ll be back online for the foreseeable future, although revision may mean it’s rather sporadic. Lots of horrible things have happened since my last post – like me finally leaving my beloved teenage years and turning 20 and me being past the halfway point of my undergraduate degree.

Anyway, I’ve been reading a ton of Koskenniemi as of late and am enjoying him immensely. I’ve begun to dent From Apology to Utopia, which is an awesome read (and is surprisingly readable too) and have been reading a fair few articles. Anyway, one thing I’ve been wondering is whether Koskenniemi has become more and more materialist as time goes by, and therefore whether one can take his old work as ‘seriously’ as his later work.

In fact one thing that really irritates me about From Apology to Utopia, is that Koskenniemi roots the problems of international law in political liberalism (as a purely ideological phenomenon), rather than in any specific material conjuncture. However, the account in apology (particularly that of the growth of the ‘liberal order’) is actually very materialist. Koskenniemi’s real problem here is that he fails to properly situate bourgeois freedom in its material context. Contra Koskenniemi I would insist that while the destruction of the feudal order and liberal politics are linked the movement is occasioned by a deeper material shift (one day I will post a skeletal account of this but I think there may be something is some of my ‘what is law’ posts too).

However, every so often I see something that totally jars me. Take for instance his account in The Police in the Temple Order, Justice and the UN: A Dialectical View.[1] I think my biggest problem is that in this sort of work Koskenniemi posits the structuring categories of international law as ‘normative ideals’, take his account of the relationship between sovereignty and power:

The very need for and definition of order are normative statements in their own right: conceptualizing ‘order’ in terms of stability, peace, or the ‘securing of the elementary needs of the relevant group’ creates an axiological system with a normative premise. So does the definition of the basic units (States, say) or the basic concepts describing their relations (sovereignty, say).[2]

Here he posits states and sovereignty as ‘normative statements’, which are therefore ‘external to the fact of power and claim to provide a measure for its acceptability’.[3] This is where I think that China Miéville’s approach is far superior. The structuring concepts of international law are not mere statements ‘external’ to the fact of power; they are objective categories through which power is articulated.

Furthermore, I think this definition is based on a very narrow notion of power, and one that ignores power as a structural category. Although one might say that sovereignty is not immediately connected to any particular geo-political balance of power (e.g. the US would love to just be able to invade everyone), one can easily connect it to the broader category of imperialism. Now, I really don’t want to go into the connection between imperialism and international law so I’d suggest you read China Miéville – plug – and possibly re-read some of my earlier stuff about the relationship between the commodity and legal form.

Now, if it is borne in mind that the structuring categories of international law are rooted in exploitative power relations in the material ‘base’ of the international order, then saying that it is ‘external’ to power becomes much more problematic. These ‘normative statements’ are in fact intimately connected to power in its organic sense, insofar as both are anchored in the same system. Of course the two exist reciprocally, insofar as power is constitutive of the international legal order but also exercised through this order.

Koskenniemi seems to recognise this in his later work, which is what leads me to question his older work’s usefulness. In What Should International Lawyers Learn From Karl Marx?[4] he says:

Again, when we seek to answer the question about legal authority (sovereignty) with regard to a piece of territory or a group of people, we look into both what it is that history has produced (‘effectiveness’), and what ideas of just government might tell us (‘legitimacy’). Much of the law on territory and jurisdiction captures this opposition – though none of it is able to explain exhaustively why ‘effectiveness’ should trump ‘legitimacy’ (after all, ex injuria non jus oritur) or vice-versa (after all, ‘rights cannot be presumed to exist merely because it might seem desirable that they should’). Neither is able to override the other because their opposition is part of the discursive world in which they belong – which they, in fact, create. Notions such as effectiveness and legitimacy (like consent and justice) interact dialectically: effectiveness creates legitimacy while legitimacy singles out the types of effectivités that have normative value (in contrast to those that are merely contra legem).[5]

Now although this is a slightly different context here we see that Koskenniemi has problematised the relationship between ‘power’ and ‘legitimacy’ to a much more accurate degree. Legitimacy is now seen not as external to power, but constituted by it. However, he does not take the next step, a step outlined rather interestingly in a footnote in Istvaan Meszaros’ Beyond Capital:

As we can see Weber turns everything upside down. For it would be much more correct to say that the objective needs of the modern capitalist state gave birth to its class-conscious army of jurists, rather than the other way round, as Weber claims with mechanical one-sidedness. In reality we find here also a dialectical reciprocity, and not a one-sided determination. But it must also be added that it is not possible to make more than tautological sense of such reciprocity unless we recognize – something that Weber cannot do because of his far from neutral ideological allegiances – the übergreifendes Moment (the constituent of primary import) in this relationship between the ever-more-powerful capitalist state, with all its material needs and determinations. And the ‘jurists’ happens to be the former.[6]

Of course one needs to be a thoroughgoing materialist to actually break this dialectical cycle but Koskenniemi has moved beyond his older division of ‘power’ and ‘justice’. A materialist account would also have to look at what ‘justice’ is and how it is determined, justice as an ‘ideological’ category is obviously materially contestable. Again Koskenniemi seems to notice this in his What Should International Lawyers Learn From Karl Marx?, where he urges us to ‘analys[e] the play of legal dichotomies, not in terms of an abstract logic of concepts but as a series of articulations of positions in concrete, historically situated political struggles.’[7] And rather dramatically:

Thus, for example, the unresolved tension in Marxian thinking between self-determination and internationalism can finally be seen not as a theoretical failure but an openness to what can be attained through praxis. Many have pointed out the interdependence of these two opposing notions. For Marxian thought they present not a problem to be resolved, but a horizon of political possibility. Whether one would prefer action within a national or an international frame remains then a pure issue of situated reason, of addressing the consequences of alternative choices, and not a derivation from some abstract and unhistorical either-or theory. Against Rosa Luxemburg, Lenin was right. Only the historical situation can tell; only praxis may achieve.[8]

Now, one wonders whether praxis is the correct word here. In the Marxian canon praxis usually refers to conscious, theoretically informed practice. But here he cannot merely be talking about the practice of Marxists or the socialist movement, as this practice has to be considered (when one talks of the field of international relations) as a struggle in a particular material context.

This isn’t just Marxian materialism – it’s fully blown Leninism, one is tempted to invoke Lenin’s much maligned polemic (one which incidentally I am in love with) – ‘all arguments about freedom and equality should be accompanied by the questions: freedom for which class, and for what purpose; equality between which classes, and in what respect’. But the problem here is that one can no longer say – ‘the point is that they are external to the fact of power and claim to provide a measure for its acceptability’

The standards are no longer external to power, power is definitionally vital to ‘standards’. Now one might perhaps say here that power is not constitutive, merely interpretative but I would have words to say about that. Firstly it is rather ridiculous to separate a standard's ‘creation’ from its application - such formalism doesn't really tell us very much about how the law works. What a standard was 'supposed' to mean is a rather unimportant question, especially when dealing with the law. Secondly, there is still the more complex view on the link between the legal form and imperialism, one which simply cannot be ignored.

If this post makes no sense, please note it was written at 1AM, after I am sure I burnt out from reading some horrible article on custom…

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[1] 1995 6 European Journal of International, p.325

[2] p.330

[3] p..328

[4] 2004 17 Leiden Journal of International Law 229

[5] p.238

[6] p.257, n.36

[7] p.240

[8] p.242

Lenin, Lenin and Zizek on rights

Hello dear readers (well those who remain). I will post more soon (if you want me to) but I have terrifyingly busy this term and not particularly inspired. However, I felt compelled to respond tothe furore surrounding this whole 'cartoons' situation. First and foremost I really suggest you read K-punk on this which is for my money by far the best analysis of the whole situation - one which manages to negiotate the twin pitfalls of a knee 'I love freedom of speech' reaction and the 'long live Allah!' response. In many respects this reminds me of Zizek's Against the Double Blackmail, where he states:

What if phenomena like the Milosevic regime are not the opposite to the New World Order, but rather its SYMPTOM, the place at which the hidden TRUTH of the New World Order emerges?

In a rather typical post Lenin (the God of the left blogosphere for what my opinion's worth) addresses the issue of 'free speech' as regards the current problems:

Free speech, then, is in material terms, in this climate, and at this conjuncture, the freedom to denigrate black people, Muslims, Arabs and just about anyone liable to come on the wrong end of Western power. So cut it out. It's not funny any more, just quit it.

Normally, I think I come off as quite the 'moderate Marxist' but in this case I think I agree with Lenin to a large degree. As I hope I have consistently stressed in this blog 'rights' and 'freedom' are necessarily indeterminate, and as such are infinitely contestible - as such specifc conjunctura; balances of class forces will affect them rather a lot. Lenin's analyis spot on as it is reminds me of another Lenin, who (apparently) responded to the question of freedom with:

“Freedom yes, but for whom? To do what?”

Such is the necessity of a materialist analysis. Freedom simply cannot be understood as some 'idea' eternally floating above all specific historical and material considerations. Rather particular types of 'freedom' must be considered as rooted in and posited by particular material conjunctures and organic tendencies. If one ignores the fact that 'freedom' is demarcated by struggle one lapses into a horrifyingly bourgeois discource (I'm not saying 'freedom' is bourgeois, merely that freedom is a historically and materially conditioned concept). In this regard I really like Zizek's quote vis-a-vis human rights:

So, to put it in the Leninist way: what the ‘human rights of Third World suffering victims’ effectively means today, in the predominant discourse, is the right of Western powers themselves to intervene politically, economically, culturally and militarily in the Third World countries of their choice, in the name of defending human rights.

But. One thing that all of these (exceedingly clever) people seem to ignores it the possibility that conjunctures can change. Whilst I agree entirely that currently many 'rights' are entirely dominated by capital I also understand that their contestibility means that class struggle can change their content. Though I am under no bounds about the historical and material origin of rights (commidty production see my older posts) I also get that in our current organic situation struggle can redefine these rights.

Thus rather than 'abstaining' from freedom perhaps we should be engaged in redefining it...

Some more thoughts on rights

“Real rules”, then, if I had my way with words would by legal scientists be called the practices of the courts, and not “rules” at all. And statements of “rights” would be statements of likelihood that in a given situation a certain type of court action loomed in the offing.
Karl Llewellyn 1930, ‘A Realistic Jurisprudence: The Next Step’, 30 Columbia Law Review 431, p. 448

Karl Llewellyn was one of the leading legal realists, a movement in which I have grown very interested. As I will later try to show one can make a close link between Marxist materialism and the legal realists, a project which I am currently attempting. Llewellyn’s statement here can be viewed as a continuation of my previous post on rights, and a springboard for further discussion.

The statement, , is a perfect expression of a materialist conception of the law, in two meaningful senses. Firstly, Llewellyn seems to be expressing the same notion as Pashukanis, that a right, materially speaking, is only a right insofar as it is embodied in actual social practice, i.e. if it actually ‘regulates’ conduct. Thus, for Llewellyn a right is in fact a ‘description’ of the likelihood of a certain type of social practice prevailing over the other.

Secondly, and with a bit more extrapolation, Llewellyn is further saying that a right must be judged by its material effects. Of course, such a point is similar to the above, but different enough to be considered in its own right. I think the point here is that with the focus on ‘a certain type of court action’ we move into the terrain of interpretation. Let me explain, the ‘right’ to freedom of speech is prima facie seen as allowing people to express their opinions, yet in the US, if one examines the ‘court actions’ that take place under its auspices, a different story emerges.

Now, I don’t profess to be an expert on US law (frankly, I don’t profess to be an expert on anything), however, I do know that the constitutional guarantee to free speech has been used to allow corporations to make unlimited donations to political parties, so as to guarantee their ‘free speech’. If one takes Llewellyn’s position an examines a right through its manifestation in the court, and so ultimately its manifestation in social practice, suddenly the ‘right’ to free speech becomes a mite more complex.

What this also brings into play is Lenin’s much maligned polemic on freedom, his opinion being:

“Freedom yes, but for whom? To do what?”

Lenin’s retort is a blunt expression of a materialist conception of ‘freedom’, as embodied in ‘rights’. Every right, is a right insofar as it is actualised, but merely noting that it is enforced is not enough, one must note the situations in which it is enforced, what is the right really a right to do? This is the problem with ‘rights consciousness’, and any adoption of it.

Therefore, when we examine a right from a materialist perspective we included within it are all of the ways in which it manifests itself socially. This is because the right has to be seen as a social relation, not a thing-in-itself, but a form of social regulation as embodied in the interaction between legal subjects. This of course leads to the conclusion that the process of interpretation, the way that a particular ‘law’ is interpreted and enforced, in a dispute is hugely important, much more important that what a particular ‘law’ or ‘right’ says ‘on paper’.

By taking the term ‘rights’ at face value we will almost always divert our attention away from a materialist analysis. When we begin to see rights as abstract entities, good in and of themselves, we forget that a right is merely ‘a state[ment] of likelihood that in a given situation a certain type of court action loom[s]’. If one forget this fact there is a tendency to dissociate rights from their material manifestations, their consequences. Such a tendency can only be detrimental, as one need only observe the numerous ways in which seemingly ‘progressive’ rights are put towards reactionary uses. Witness the BNP framing their resistance in terms of ‘freedom of speech’, witness the invasion of Yugoslavia on the basis of ‘human rights’, when one stops analysing rights in a materialist fashion, stops looking at their material actualisation, and simply promotes rights, one may well end up legitimising domination.

And one cannot simply say that these reactionary uses of rights are some kind of ‘perversion’. Certainly these actions are potentialities contained within these general rights, and the very fact that they are manifested materially proves that they are not a perversion. They might well be contingent, in that their actualisation is not guaranteed, but they are certainly internal to the right, and probably internal to the very notion of rights.