Historical Materialism Conference - Part 2

Wow. Apparently my notes on the fisrt plenary session were pretty long. The notes for the next session 'Islam and American Imperialism' are a bit less so. Not becuase the talks weren't interesting, but because I'd already sat through one long session and the lecture theatre was rather sophorific, owing to the temperature and layout.

The backdrop to the talks is the increasing resistance to American imperialism and the lack of a clear socialist alternative to it. This leads - on the part of the Socialist Register, who organised the plenary - to a crisis of agency. It therefore becomes necessary to analyse the new movements that have arisen so as to conceptualise the current conjuncture.

Gilbert Achar - Imperial Uses of Islam
Achar began his talk by examining the 'clash of civilisations' paradigm, one which he described as pervasive on both a conscious and unconscious level. This view basically suggests that Islam and the West are engaged in a clash of civilisation and there can be no middle ground between them. This view is common to both Western Islamophobes and Islamic fundamentalists - who tend to characterise Islam and 'the West' is implacably in conflcit with one and other, and view this conflict as defining our current age.

But Achar notes that this is not the view of Western governments. Western governments tend to differentiate (in their rhetoric) between 'good' Muslims and 'bad' Muslims, they don't view things as a clash with Islam but a clash within Islam. Achar also argues that Huntington himself doesn't hold with the way in which his theory has been interpreted. Achar argued that Huntington is in fact a 'global multiculturalist', insofar as he thinks it's a good thing to have different 'civlisations' existing worldwide, he opposes mutliculturalism nationally because he wants to preserve Western culture in its heartlands. Furthermore, Huntington dismisses universalism as imperialism (in the perjorative sense) and argues that a project of imposing Western values will end in disaster. In other words Huntington appears as a traditional realist.

Achar argued that it is this realist Huntington that has informed US policy towards Islam. His first (and very good) example is the United States' alliance with Saudi Arabia, a state which is in fact the US' oldest ally in the Middle East. It has historically (and still does) served as the cornerstone in the US global stratey, particularly in combatting anti-imperialist nationalism. But of course Saudi Arabia is probably the most 'fundamentalist' state in the whole of the middle-east. In fact the US supported Saudi fundamentalism in Afghanistan. He further notes that plenty of fundamentalists were willing to colloborate with the US invasion of Iraq.

The point for Achar is that the US has used fundamentalism for its own ends and fundamentalism has often been (and is still) willing to colloborate with US imperialism when they had the chance. He then listed the examples of the Muslim Brotherhood and assorted other instances.

Achar's basic point here was that at best we can call Islamic fundamentalism 'anti-Western' but it is only sporadically and inconsistently 'anti-imperialist'. This of course has implications for how Marxists should approach Islamist resistance to US imperialism. At the very least when struggling with them it is necessary to view them with 'distrust' and attempt to spread our own ideas within their ranks.

One person's attempt to critique Achar's approach was based on the argument that notwithstanding our 'subjective' opposition to the domestic policies of the fundamentalists, they might nonetheless be 'objectively' anti-imperialist, since they are fighting imperialism. I wasn't there was the response, but surely Achar's argument is not about the political programme's of Islamists, it's about their record of supporting imperialists when they think it is to their advantage. Such a position of course means that while they may be 'objectively anti-imperialist' in a given instance the question is whether they will consistently hold this position. Achar's analysis seems to suggest they won't (and also that the imperialists won't consistently target them either) so this has to be the position to proceed from.

Bashir Abu-Manneh
For my money Abu-Manneh's speech was probably the most interesting of the lot, particulary because he engaged in some interesting theoretical anaylsis. Abu-Manneh's speech was composed of three arguments:

• The Palestinians have been in a state of seige since 1991
• The Palestinian elite has collaborated with the Israeli state
• The above two factors have led to the emergence of a specific form of resistance, one which has entrenched militarisation and depoliticisation

The first thesis is simple enough to understand. Israel has continuously interevened in the occupied territory, denying the right of freedom of movement throughout the West Bank and Gaza strip and within Israel itself. This process has culminated in the creation of the apartheid wall, which has formalised the process by physically closing off vast swathes of the West Bank. This - of couse - is all very uncontroversial stuff. But Abu-Manneh further argued that this has destroyed any meaningful sense of spontaneity amongst the Palestinians. It has tended to eliminate any proper sense of the Palestinians as a collecitive entity who are capable of collective action. Palestinians have been alienated into individuals, families etc.

The second thesis is another one which I think is uncontroversial. It seem incontrovertable by now that the Palestinian Authority has collaborated with and legitimated the occupation - corrupting and nearly destroying the Palestinian's national aspirations. Abu-Manneh related an anecdote whereby the PA would always be there to stop attacks on settlers but would be mysteriously absent when there was an Israeli attack in the occupied territory. In line with this Abu-Manneh argued that the PA has consciously undermined any attempts to organise outside of the PA. To top it all off, when the PA did stop collaborating it was attacked by the Israeli authorities.

The combination of the two above factors leads to Abu-Manneh's third argument. The point of these factors is that they have pushed Palestinian strategy towards militarisation. Firstly, this is because any meaningful political resistance seems impossible. The Palestinian's traditional representation - Fatah - has been collaborating since Oslo. Furthermore, it is difficult - if not impossible - to develop political positions and mobilisation when freedom of movement is physically restricted. Furthermore, political action seems so difficult precisely because the Palestinians have lost their faith in their own capability for collective action. This depoliticisation means that solutions based on mass action seem impossible, which naturally seems to lend support to the idea that small acts of military resistance are necessary.

But it is not just the content (military acts) that are shaped by these social conditions, it is also the form. This is because the small military action per se is - in some respects - a collective political act. This would certainly seem to be the case when one considers the links between militants and political parties. The ultimate culmination of the tendency towards atomisation is the emergence of the suicide bomber as a 'weapon' in the struggle against of Israel. This of course makes a lot of sense, because the suicide bomber is the precisely opposite of a collective political struggle. Thus, the tendency towards atomisation and depoliticisation, combined with the concomitant process of militarisation tends to produce the ultimate individualist military act - the suicide bomber. Although, as Abu-Manneh points out, we shouldn't exaggerate the degree to which suicide bombing has become the norm, and ultimately as a tactic it has proved counter-productive, since it tended to fit the Palestianian struggle into the discourse of terror.

What I really like about this analysis is the way in which it traces the particular configuration of Palestinian resistance back to the social conditions in which it operates. This is a much better position to take than just 'condemning' particular forms of resistance without understanding why they gain popularity or the opposite but related one of just saying 'it's understandable because they endure so much'. It's therefore good to see someone take a materialist position on this issue. What's also interesting is the degree to which Abu-Manneh's position dovetails with Lukacs in History and Class Consciousness. This is because capitalism itself has a natural tendency towards depoliticisation (reification), alienation and fragmentation, of course these tendencies are often counteracted.

I think invoking Lukacs is useful for another reason. Abu-Manneh's preferred solution to the problem is to replace this strategy of individualised militarisation with one of collective self-mobilisation. Well, this is fine in practice, but the whole point is that the situation Abu-Manneh outlined has already shown precisely why this collective self-moblisation is going to happen, and certainly not spontaneously. This is where Lukacs is especially relevant. Because Lukacs core insight is that the proletariat can't just spontaneously organise against capitalism. What is needed is something that can take the viewpoint of the proletariat but do so in a way that transcends the reifying tendencies of capitalism. That is to say a vanguard party. In the Gramscian analysis this Party is composed of the organic intellectuals who arise from the class in the midst of struggle. And this is what Abu-Manneh's analysis really seems to lack - the need for a conscious organising element of the Palestinian people able to mobilise them against the Israelis. But of course the other problem is that the people who you would expect to be able to fulfil this role in Palestinian society are - as Abu-Manneh argued - completely compromised. This - perhaps - is why he didn't delve into this question, as it is one to which there doesn't seem to be much of an answer.

Unfortunately I missed the last talk because I needed to get home, so I can't comment on that. More stuff will follow over the rest of the week. This will reveal how horribly theory-obsessed I am, however, and no doubt I will be much looked down-upon for it.

Cross posted to the Lair.

Fundamental contradictions

So here's an excerpt of something I seem to have working on forever, basically I'm trying to place the idea of a 'fudamental contradiction' being responsible for legal indeterminacy within a Marxian framework:

At this point it is useful to return to the Critical Legal Studies Movement. Much of the analysis of the Critical Legal Studies Movement focuses on the notion of a ‘fundamental contradiction’. It is held that indeterminacy in the law is a by-product of fundamentally irreconcilable postulates of liberal ideology. For Duncan Kennedy ‘the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it’.[1] The irreconcilability of the individual and the community in liberal political theory is said to pervade all legal doctrines in some way, shape or form, and as such ‘a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule’[2].

Kennedy invites us to ‘[s]uppose that the fundamental contradiction has “always” existed, in its present degree of intensity and pervasiveness’, which therefore makes us wonder why ‘it has either not been experienced at all, or not acknowledged by any of the succeeding generations of Western Leading thinkers … of the very recent past’. He further invites us to suppose that ‘there have existed processes of mediation, or denial’[3] that served to ‘hide or disguise it from those engaged in the enterprise of legal thought’.[4] From a Marxist standpoint this position is eminently worthy of critique, Brian Leiter has described Kennedy as a ‘philosophical liberal who views the ‘conflict’ between individual and society as a perennial feature of the human situation’[5] who has ‘abandoned all the philosophical content of genuine antiliberal positions’.[6]

However, the rational kernel of this position can serve as a starting point for a Marxist account, provided its flaws are properly addressed. Kennedy’s line can be critiqued on two basic fronts. Firstly, there is the problem that he (like Roberto Unger) ‘presents his favoured principles and disfavoured counter-principles as universal: he gives no indication of their genesis or the conditions of their existence’.[7]

This criticism is not entirely fair, as it is possible to – even on Kennedy’s own terms – to find an account for the conditions of the existence of the fundamental contradiction. Although Kennedy asks us to ‘[s]uppose that the fundamental contradiction has “always” existed’ he immediately posits that this contradiction has been historically mediated and hence ‘hidden’. If a contradiction is ‘mediated’ and hidden it is not ‘active’, and therefore has no effect upon the law – if this is the case this then materially speaking there is no contradiction at all. If this is the case then there must be some reason why it becomes active. This explicitly opens the door for a materialist account of the conditions that allow it to become active – in effect the conditions of its genesis.

The stronger critique is the second one, that ‘in Critical Legal Theory, abstract notions such as ‘individualism’ and ‘altruism’ have come to be seen as producing contradictions in their own right qua ideas’.[8] From a Marxian standpoint this is obviously insufficient, as a Marxist account as its prime role is to show ‘how theoretical problems are generated from the relations between individuals in society’. One can easily reconstruct Kennedy’s account by integrating it within a historical materialist framework. A Marxist account would address the two problems together, as inseparable moments in a historical movement. For China Miéville the basic Marxist position is that the ‘social relations of general commodity production are the foundation for liberalism and its contradictions’.[9] This analysis provides a starting point, however much more detail is required; one must conduct a historical analysis of the development of these social relations, so as to see how they relate the fundamental contradiction.

Much of the analysis has already been laid out in this piece. The basic account of how the transition from liberalism to feudalism provides a background theoretical and historical account. Such an account is further fleshed out in Marx’s account of pre-capitalist societies in the Grundrisse.[10] For Marx ‘human beings become individuals only through the process of history. He appears originally as a species-being [Gattungswesen], clan being, herd animal’[11], in this context the fundamental contradiction cannot be active, since the individual is mediated through the community. This is mirrored in the notion of hereditary privilege and custom. However, as has previously been outlined ‘[e]xchange … makes the herd-like existence superfluous and dissolves it’.[12] Such an analysis is necessary but not sufficient for a Marxian account of the fundamental contradiction. Although it has posited how individuals might well suddenly come into conflict one would imagine that since the ‘community’ has been dissolved there is suddenly nothing that conflict with these individuals.

Of course, this notion is premised on the idea that the community that remains is simply an aggregation of these individual wills and therefore has no ‘collective’ aspect. This is patently false. In fact, the Marxist position is much more complicated than this. A Marxist approach does not hold that the ‘organic community’ is the only form of ‘collectivity’ that exists, thus the abolition of this community and the transformation of its constituents into individual commodity bearers (and consequently legal subjects) does not mean that society has been rendered more individualistic. In fact the development of the capitalist economy, even at its most basic has a very different result. In Capital, Marx outlines the process whereby capitalist production develops from manufacture. The key element in this process is the drawing together of labour under capital – ‘the laws of the production of value are only fully realised for the individual producer, when he produces as a capitalist and employs a number of workmen together, whose labour its collective nature is at once stamped as average social labour’.[13] Thus capital, as a social relation – even whilst it is dissolving ‘the herd-like existence’ – requires the drawing together of people in cooperative endeavour

Furthermore, the historical development of the capitalist economy has led to an ever greater development in communication and socialisation. As Marx and Engels famously put it in the Manifesto of the Communist Party:

The bourgeoisie keeps more and more doing away with the scattered state of the population, of the means of production, and of property. It has agglomerated population, centralised means of production … The necessary consequence of this was political centralisation. Independent, or but loosely connected provinces, with separate interest, laws, governments and systems of taxation become lumped together[14]

The advance of capitalism has facilitated greater and greater intercourse between people and nations, developing as it has new forms of communication as a necessity for economic intercourse. Yet simultaneously with this development it continuously posits individuals (both economically and legally) as isolated subjects, herein lies the materialist explanation of the fundamental contradiction. Marx and Engels recognised that this contradiction was important, and that it operated on both a micro and macro level in capitalist society. Thus, in his discussion of cooperation Marx noted that ‘[b]eing independent of each other, the labourers are isolated persons, who enter into relations with the capitalist but not with one and another. This co-operation begins only with the labour process’.[15]

Engels is much more forthright in dealing with this contradiction, and deals with as a global contradiction. For Engels ‘production itself had become in essence socialised. But they were subjected to a form appropriation which presupposes the private production of individuals’, this contradiction ‘contains the germ of the whole of the social antagonisms of today’[16]. In fact, rather serendipitously Engels refers to this as the ‘[f]undamental contradiction’.[17] A Marxist account therefore locates the contradiction giving rise to indeterminacy in the law firmly within the realm of commodity production. Commodity production necessarily posits individuals as isolated subjects, whilst simultaneously developing an ever more socialised form of production and society, as this develops the two come into irreconcilable conflict, which is itself manifested in other social forms. In this way the conflict between the ‘individual’ and society is historicised and placed firmly within the realm of the material. One can also explain why indeterminacy did not necessarily plague all other legal systems, as it is only upon the generalisation of commodity exchange (i.e. capitalism) that the ‘community’ is destroyed concurrently with an increasing socialisation of all aspects of life.

Such an analysis is not entirely ignored in Pashukanis’, who recognised that the law is ‘a form of external authoritative regulation and a form of subjective private autonomy’. This analysis is carried further and beautifully linked with the notion of a fundamental contradiction in capitalist commodity exchange when Pashukanis puts forward the position that law ‘appears both as the basis of social organization and as the means for individuals “to be disassociated, yet integrated in society”’[18]. What is particularly interesting is that Pashukanis seems to notice the inherently contradictory position of the commodity form and the legal form, insofar as both posit an isolated individual subject yet this subject is necessarily posited in terms of another subject.

I'm not entirely satisfied with, I need to expand on the basic contradiction inherent in the commodity form (which Pashukanis identifies) and then maybe put in a reference to the Hegelian dialectic of consciousness. This has also prompted me to start thinking some more about criminal law from Pashukanis' perspective, and about the critiques he's received on the subject.

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[1] Kennedy, 28 Buff. L. Rev. 205 1978-1979, Structures, p.210

[2] Martii Koskenniemi, ‘And by Their Acts You Shall Know Them…(And Not by their Legal Theories), EJIL 15 (2004) 839, at p.850

[3] Kennedy, Structures 213

[4] Kennedy, Structures 214

[5] Leiter, 1997 17 Oxford J. Legal Stud. 367, p.383

[6] Leiter, 1993-1994 142 U. Pa. L. Rev. 549, p.574

[7] David Jabbari, From Criticism to Construction in Modern Critical Legal Theory, 1992 12 Oxford J. Legal Stud. 509, p.519

[8] Jabbari, p.541

[9] Mieville, BER 54

[10] Marx-Engels Reader, p.261-276

[11] MER, p.262

[12] MER, p.262

[13] Capital, p.196

[14] MER, p.477

[15] Capital, 204

[16] MER 704

[17] MER 717

[18] GTLM 70