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

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

The noble "international community" which is currently scrambling to send its "humanitarian aid" to Haiti is largely responsible for the extent of the suffering it now aims to reduce. Ever since the US invaded and occupied the country in 1915, every serious political attempt to allow Haiti's people to move (in former president Jean-Bertrand Aristide's phrase) "from absolute misery to a dignified poverty" has been violently and deliberately blocked by the US government and some of its allies ...

Haiti is now a country where, according to the best available study, around 75% of the population "lives on less than $2 per day, and 56% – four and a half million people – live on less than $1 per day". Decades of neoliberal "adjustment" and neo-imperial intervention have robbed its government of any significant capacity to invest in its people or to regulate its economy. Punitive international trade and financial arrangements ensure that such destitution and impotence will remain a structural fact of Haitian life for the foreseeable future.

It is this poverty and powerlessness that account for the full scale of the horror in Port-au-Prince today. Since the late 1970s, relentless neoliberal assault on Haiti's agrarian economy has forced tens of thousands of small farmers into overcrowded urban slums. Although there are no reliable statistics, hundreds of thousands of Port-au-Prince residents now live in desperately sub-standard informal housing, often perched precariously on the side of deforested ravines. The selection of the people living in such places and conditions is itself no more "natural" or accidental than the extent of the injuries they have suffered.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principled opportunism and natural law jurisprudence

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

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

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

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

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

The obvious interesting point from my perspective is the way in which the natural law approach dovetails with that of Pashukanis. Thus, Pashukanis identifies law with a specific form and ties it with a specific form of social life; which – in a less idealised form – is the same of that the natural law jurisprudes, capitalism. However, there is of course a crucial difference in these approaches, which Nigel Simmonds (who has made extensive and fascinating excursions into the Marxist tradition) sums up quite nicely (‘Between Positivism and Idealism’, (1991) 50 Cambridge Law Journal 308 :

The conservative view of law that I am defending has much in common with Marxism. Yet if differs from Marxism in the evaluation that it makes of law.
p.323

The crucial difference in the Marxist and natural law accounts of the legal form is how they evaluate law and the form of social life it is tied to. Obviously, Marxists are wont to evaluate capitalism of being composed of relations of exploitation and domination, and as a destructive and ultimately (hopefully!) transient phase of human life. I think the crucial move made by Marxists in this respect (and I have elaborated on it more here and here) is that the ‘form’ of capitalism free exchange is structurally tied up with a certain content; it’s not just a case then of the liberal form of capitalism being occasionally confronted with some nasty stuff; but rather that this form systematically throws up problems owing to the realisation of surplus value. Thus, domination, exploitation, class struggles etc. are always produced by the formal equality that characterises capitalism. Chris Arthur puts it rather excellently (in the introduction to the Ink Links Law and Marxism: A General Theory:

From a dialectical point of view a form is the form of its content, and one may be alarmed at the outset if one imagines that Pashukanis proposes to write a treatise on legal forms in abstraction from content. However, this would be a misunderstanding. In characterising law as a bourgeois form he clearly is relating law to a definition material content – the social relations founded on commodity exchange.
p.29

Thus, on this we can reverse the natural law position. The form of law is not something intrinsically valuable, but (if you’ll allow me) quite the contrary, the form embeds relations of exploitation and domination. And this brings us to principled opportunism, and its complete opposition to the collateral obligation. There, the form of law is invoked against unjust content; thus in spite of its content, the form may compel obedience. But in principled in opportunism the content of law is invoked against the ‘unjust’ (for want of a better word) form, and content may compel obedience (or more likely invocation), in spite of the form. In the collateral obligation, law is in principle valuable, in principled opportunism law is ‘in principle’ not, and as such should never be invoked per se.

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

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).