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

The photos America doesn't want seen

In the SMH.

A picture says a thousand words...

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...

More on that whole human rights thang...

So in connection with my previous post I have continued along the precarious path of reading complex French philosophy (don’t worry I’m still reading Marxists too). Reading Jacques Rancière’s Who is the Subject of the Rights of Man actually managed to give me some good ideas.

So at the end of my last post I looked into the relatively innocuous question of how those outside of a national framework are able to be interpellated as legal subjects. Firstly, I think that a functional explanation is sufficient to explain why corporations and other international bodies are posited as legal subjects. It is axiomatic that if the legal form is both a product and guarantor of commodity exchange then those subjects engaged in exchange will be interpellated as legal subjects. With the increasing globalisation of trade and the centralisation/monopolisation of capital it is prima facie obvious that these bodies will need to become legal subjects. The same goes for non-economic international bodies, in order for these bodies to actually work they need status as a person, politically they have the support of the most ‘important’ imperialist nations, and so it follows that they will become subjects.

However, there is still the problem of ‘stateless people’. Functionally, there is no need for them to become legal subjects, precisely because they are not engaged in any exchange function. One imagines that as soon as a stateless person is of some ‘use’ to capital then they will be able to become a legal subject (i.e. once they start working).

But this does not really explain how stateless people qua stateless people are able to become legal subjects. Rancière has an interesting – if somewhat impenetrable – approach to this question. Firstly Rancière, as is usual for these people, looks at Hannah Arendt’s Origins of Totalitarianism, where she poses the following paradox vis-à-vis human rights:

She makes them a quandary, which can be put as follows: either the rights of the citizen are the rights of man – but the rights of man are the rights of the unpoliticized person; they are the rights of those who have no rights, which amounts to nothing – or the rights of man are the rights of the citizen, the rights attached to the fact of being a citizen of such or such constitutional state. This means that they are the rights of those who have rights, which amounts to a tautology.[1]

This in essence is the problem that we have as regards those stateless people, if human rights are the rights who have no rights they are nothing. Rancière’s (confusing) solution is that ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’[2]. However, he becomes much clearer later, and in fact posits what one might term a materialist explanation.

Basically he illustrates this sentence in terms of the French Revolution, where Olympe de Gouges – a woman – said ‘if women are entitled to go to the scaffold, they are entitled to go to the assembly’[3]. Essentially what she tried to show here was although women were denied political rights, they were entitled to the ‘right’ to be executed for betraying the revolution and thus those who are apparently excluded from the political are in fact included.

For Rancière this is an example of ‘dissensus’. He says:

A dissensus is not a conflict of interests, opinions, or values; it is a division put in the “common sense”: a dispute about what is given, about the frame within which we see something as given.[4]

Furthermore:

[T]hey could demonstrate, through their public action, that they had the rights that the constitution denied to them, that they could enact those rights. So they could act as subjects of the Rights of Man in the precise sense that I have mentioned. They acted as subjects that did not have the rights that they had and had the rights that they had not.[5]

He then abstracts:

It is the opening of an interval for political subjectivization. Political names are litigious names, names whose extension and comprehension are uncertain and which open for that reason the space of a test or verification. Political subjects build such cases of verification. They put to test the power of political names, their extension and comprehension. They not only confront the inscriptions of rights to situations of denial; they put together the world where those rights are valid and the world where they are not. They put together a relation of inclusion and a relation of exclusion.[6]

Now, the idea of a ‘dissensus’ I feel actually has some merit if it is (rather radically) reinterpreted in a materialist fashion. What Rancière has identified here is the gap between the formal and the real in rights discourse. The formal ‘language’ of the rights is only meaningful insofar as it is transformed into real social practice. This is of course the message that Pashukanis and the realists have driven home time and time again.

The point here is that Rancière identifies a ‘conjunctural moment’ in the legal process. The ‘gap’ between the formal and the real, the transformation of the formal into the real is a political matter. Thus Rancière is able to take the Marxian approach of seeing law as politics expressed within a particular form. The problem here is that the ‘rightless’ are not legal subjects so how can it be that they struggle through the legal form?

I would have to say that they don’t. Obviously the struggle to become a legal subject cannot be done as a legal subject; it must be the sphere of politics alone. However, this is not quite correct. What Rancière seems to be saying is that ‘legal concepts’ (such as they are) are tested by those who are not yet legal subjects through the political sphere. This is a case of man proving the ‘this-sidedness’ of a legal ‘concept’ through ‘practice’.

One might perhaps therefore say that this is an ideological-political struggle, in which case one can give credence to Engel’s thesis as regards the elasticity of the law:

[Law] must … be an internally coherent expression which does not, owning to inner contradictions, reduce itself to naught[7]

However, I do not think that such a struggle is purely ‘ideological’. Firstly, insofar as the struggle will aim at real material results it is political. Secondly, the basis of the struggle will not just be the internal coherence of the legal form, it will instead be the objective social relation of the legal form, as is constituted through commodity exchange.

This view is useful insofar as it does not render those without states as passive victims of the machinations of evil Capital. It rather sees within them the embryonic structure of the legal form, precisely because they are struggling to materially constitute it. As Rancière puts it, in a very materialist fashion:

This is also why today the citizens of states ruled by a religious law or by the mere arbitrariness of their governments, and even the clandestine immigrants in the zones of transit of our countries or the populations in the camps of refugees, can invoke them. These rights are theirs when they can do something with them to construct a dissensus against the denial of rights they suffer. And there are always people among them who do it.[8]

Whilst a purely ideological model of dissensus may seem off, locating this in the political sphere does seem important. It perhaps also fits in with the notion of the bourgeoisie having a much greater hegemony than any other class before it, and the struggle some groups go through to gain these rights.

However, it does raise fundamental questions about the intersection between the political and the economic in a capitalist totality. Whilst it is obviously true that in some cases a structural-functional imperative causes a subject to be posited as ‘legal’, this cannot be the case everywhere. There is obviously also the idea that as the commodity form destroys traditional methods of dispute resolution, the legal form must rise up in their place.

But these functional accounts seem to banish class struggle from the realm of the constitution of legal subjects. This however, is not quite the case. Firstly, capitalism is not an autonomous development whilst it does develop through its own internal logic it required a class to smash the old relations of production and being to accumulate. In this way the development of capitalism and by extension the legal form can be explicitly linked to politics during the transition from feudalism to capitalism (note here the notion of ‘bourgeois freedom’). The deeper political question is that raised by Rancière, the process whereby subaltern groups are interpellated as legal subject. A large part of this process will be ‘automatic’ and therefore legal, this is because most people become commodity proprietors and engage in commodity exchange.

However, it seems clear that certain super marginalised groups did not gain such a position automatically; one might here think of racial groups or gender groups. Here, there is more of an ideological-political struggle that is linked to the traditional Engelsian thought on law. In essence here we see people operating within the assumptions and concepts of the legal superstructure so as to point out its contradictory nature. In this way their political struggles can end up positing them as legal subjects. However, it must be remembered that this occurs within the context of commodity production. It is only because the legal form is so widespread that political struggle is able to lead to a legal subject. This is because ultimately ‘right-less’ people are in contradiction to the material structure of mature capitalism, even if political conjunctures make it easy to ignore and fight this tendency.

To be honest I'm not sure if I like what I've just written, but it's done now...

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[1] Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, South Atlantic Quarterly 103:2/3,Spring/Summer 2004, p.302

[2] ibid, p. 302

[3] ibid, p.303

[4] ibid, p.304

[5] ibid, p.304

[6] ibid, p.304

[7] Engels’ Letter to J Bloch, 1890 (MIA haven’t fully transcribed it!)

[8] ibid, p.305/6

The right to have rights

Ok, so my laptop has finally been fixed, rather unfortunately I had to get a new hard drive, which mean I have lost quite a lot of articles and notes on articles – mais c’est la vie. Also, this holiday has been horribly busy, so I haven’t had much time to do anything particularly intellectual. Recently, I have actually started to read some interesting articles. One pretty good one I read ‘The Right to Have Rights’ by Werner Hamacher (South Atlantic Quarterly 103:2/3, Spring/Summer 2004).

The article is essentially a reading of Marx and Arendt vis-à-vis human rights, obviously what I am interested in is the Marxian perspective. Hamacher examines the oft quoted ‘On the Jewish Question’, basically – to put it in somewhat Althusserian terms – the article examines the law from an external perspective. Most of my previous ‘work’ has been looking at the legal form, and legal subjects as posited in opposition to each other. In contradistinction to this approach (and in line with seemingly most of the post-whateverist legal theorists) what is here examined is those subjects who are outside of the law, i.e. those who have a right to rights.

The basic line of argument taken by this position is gleaned from Marx’s work ‘On the Jewish Question’, here ‘Christianity’ is seen to provide the ‘secular religion’ of democracy. Christianity posits religion as primarily a private matter, this meant that the ‘human’ could be perceived as separable from the citizen:

That public, political matters were matters alien to Christians meant nothing other than that the human was henceforth not only a political being, but, moreover, and above all, a social being. Politics, on the other hand, was thereby, however discreetly, transformed into the sphere that was able to guarantee the neutrality of the constituents of the state with regard to the political.
p. 334

Now, although this is ok as it goes, I think reading ‘On the Jewish Question’ in this way isn’t necessarily right. To again sound horribly like Althusser I think we need to read ‘On the Jewish Question’ in the light of the fullest development of the materialist dialectic (i.e. read it in a Marxist way). In this way rather than seeing Christianity as the cause of the shift, a change in the religious form should be seen as symptomatic of broader shifts in the socio-economic order. The rigid separation of private and public was only really achieved with the destruction of feudalism and the rise of the commodity form. It is only at this point in history that the economic ‘backbone’ of civil society is sufficiently ‘separated’ from the direct influence of politics, under feudal regimes politics was directly identified with economics (e.g. the feudal lord is the direct political and economic ‘master’ of the peasant).

But back to Hamacher. He argues that ‘democracy’ leaves a gap between the ‘human’ and the political. The ‘political man’ is defined as against other men and within the framework of a national community. What of course follows is that the ‘human’ in human rights is the ‘political’ man, and therefore only exists within a national political context. Since this is the case those groups of people who are without a nation are not human for the purpose of human rights.

This is a basic outline of Hamacher’s position. I found it pretty interesting, and I have already been thinking of somehow trying to account for those external to the law who have not been interpellated through the legal form as legal subjects, especially because I intend to start reading Agamben. Firstly, it should of course be noted that such theorising is not incompatible with Pashukanis. On the contrary it in facts serves to reinforce his account, insofar as it sees the legal form in very similar terms. What it does force us to do is examine the process by which ‘people’ are interepellated as legal subjects.

The first point I’d like to make is that Hamacher is incorrect to limit his account purely to ‘human rights’, a more interesting account would look at rights in general (particularly as human rights are seen as a ‘last ditch’ set of rights in any case). If we do this then the first point to note is that not only humans are capable of being legal subjects. With the development of capitalism and its (seemingly inexorable) centralisation the commodity form has grown to encompass more complex social organisms. Accordingly these organisms have (of necessity) been posited as legal subjects. Thus the corporation is capable of bearing rights, as are certain political organizations. Secondly, some of these social organisms are not rooted in any particular national-political organization. Thus the UN and certain TNCs are still capable of being legal subjects. Thus we can see that although human rights (and all rights) are conceived as ‘private rights’ they are nonetheless not necessarily rooted in a specific national context. Therefore we must why some subjects without nationality are capable of being posited as legal subjects and some are not.

This in itself is a complicated question which I do not really feel up to answering in all its complexity today. However, I think it might be quite interesting to reconsider some of the earlier stuff I said about the spread of the legal form so we get some insight into what might be the driving force behind the exclusion of certain groups from legal subjectivity.

Firstly, we can examine the first context in which the legal form was articulated. In Rome only a very small number of people were actually ‘legal subjects’. Primarily it was only the ‘heads of family’ who were interpellated in this way. Slaves, women and children were all ‘represented’ by the father. Any offence committed against them was only an offence insofar as it offended or harmed the father. Furthermore, any liability they incurred would accrue to the head of the household. This seems to show that where the commodity form is confined to a narrow spectrum of the economy there will be large numbers of people who are not legal subjects. Only those whose status sees them involved in commodity exchange are likely to be posited as legal subjects.

As the commodity form grows stronger we see the expansion of the legal form. This is accelerated by the destruction of other modes of dispute resolution on the basis of bourgeois ‘freedom’. In this respect disputes not directly related to exchange are nevertheless mediated through the legal form. This might provide a grain of distinction, insofar as we see that corporations are engaged in commodity exchange and insofar as there is a global market it is logical that these organizations become legal subjects. But this seems too neat and functional. Not to mention it smacks of economism, it seems necessary to connect the interpellation of legal subjects to politics but that will be for another post I think…

So yeah, I'll start again properly soon, I wanna do some more posts on this, and a little bit on class struggle and the law, I also reckon I might just branch out into Marxian theory in general, 'cos I often have little thoughts I'd like to jot down.

Harry Magdoff

I will begin posting again soon, have some interesting stuff to write on class struggle, PoMo people etc. but I've been bogged down.

However there is some sad news, Harry Magdoff has died, rest in peace comrade.

Koskenniemi and International Law

Right. I will try and put up a proper post soon, but this 'holiday' is surprisingly busy. Anyway I was going through some notes I made when I discovered my annotation of Martii Koskenniemi's 'What Can International Lawyers Learn From Karl Marx' ((2004) 17 Leiden Journal of International Law 229). Anyway, Koskenniemi has an interesting quote, dealing with the relationship between International law, political mobilisation and Iraq:

“International law may act precisely as an instrument through which particular grievances may be articulated as universal ones and in this way, like myth, construct a sense of universal humanity through the act of invoking it. From such a perspective, the project of universal justice appears as a horizon at the intersection of a public realm of states regulated by international law and the civil society reaching beyond sectarian interests. That this intersection appears only occasionally, and even then in connection with events of exceptional magnitude, even scandal, is an aspect of the difficulty that any fundamental challenge to the iron laws of power must imply.”

Frankly, I think Koskenniemi is way off on this point. Rather than International Law serving as an instrument through which the particular is made universal, I'd argue that International Law serves as the opposite. We'll take the example of the Iraq war. Now a sophisticated Marxist analysis must of course view the war in all its conjunctural specificity. It is a concrete event in and of itself. However, the concrete event is only really to be understood as a manifestation of a universal 'structure'. Thus the war should be seen as an imperialist war, and imperialism must be seen not as particular strategy adopted by a 'cabal of neo-cons', but as a structural relation inherent in the world economy.

This means that the Iraq war should be seen as a concrete manifestation of 'universal' social relations. But when Iraq is viewed through the prism of international law all of this disappears. The war is condemned for being 'illegal' (and this is questionable in itself), but legality must always refer to a highly specific set of events. Thus what is condemned is not imperialism, or even war in general but this particular war.

Whilst it is no doubt true that opposition to the war based on international law might mobilise large numbers of diverse people this is not the same as setting the war up as a universal. In fact part of the reason that a legalistic opposition to the war is able to gain large amounts of followers is precisely because of the specificity of analysis. Opposing the war on legal principles means one does not need to carry out any broader analysis of why such wars happen in the first place, and certainly does not commit one to an opposition of the domestic status quo.

Furthermore condemning the war as illegal opens up questions as to whether it is therefore ok to support imperialist wars that are seemingly legal. Considering the fact that 'legality' to a large extent structurally favours 'power' over 'justice' (if one can even invoke such a term) is a nail in the coffin for this thesis.

Ultimately legalistic opposition serves the opposite of what Koskenniemi suggests. The illegality of the war will always be confined to 'the facts', this is even more the case with international law, where norms are freewheeling and hugely context specific. Furthermore, opposition rooted in international law means that once a country is given legal authorisation to head in and start the bombings opposition 'dries up'.

Law and Society

Not law or lawyers, but society, gives fighting advantage to the propertied.
Karl Llewellyn, The Bramble Bush, p. 145

Considering all the bad public image lawyers get (and in most cases I'd imagine it is a thorough deserved reputation), this quote could just seem to be the knee jerk defence of an offended lawyer. However, I reckon Llewellyn has a point, in so far as he enables us to see the complex interrelations between law and society (although the conceptual separation of the two is not necessarily something I'd advocate).

I think that, as it goes, what Llewellyn says is spot on. If one wishes to identify the reasons why certain members of 'society' ('the propertied') are systemically and structurally favoured it seems foolish to simply look at law. Such domination is rooted in the deep structure of a particular material totality.

However, this being said I think that Llewellyn may be going a little bit too far in his assertion. Firstly, taking this position artificially separates 'law' from 'society'. This seems in opposition to the fact that Llewellyn's own writing posits the close link between the two. Secondly, such a statement ignores the important role that law and legal systems play in reproducing capitalist relations of production and protecting them. When one looks at a social formation as a historically constituted totality it is often foolish to separate production and reproduction in such a rigid way, as ultimately the two may be organic to eachother.

This is especially true of the legal form, insofar as it plays the vital role of interpellating people as legal subjects. Can one really imagine the capitalist mode of production without some of the vital legal relations it throws up (contract, property etc.). This is especially true when looks at the close reciprocal relation between the relations of production and the law. Law serves to butress protect, and in some instances even create a given set of productive relations. In this sense though we can and should give primacy to 'society', it is foolish to think that it does all the work. Law and society exist in a dialetical, reciprocal relation, with (to coin a phrase) society causing in dominance.

The End Of Habeas Corpus in Great Britain

Interesting article in Monthly Review on the recent spate of anti-terrorism legislation that has dogged the UK. One thing that I find quite interesting is the relationship between exclusion and emergency within notions of the 'rule of law'. Aside from the numerous problems associated with the formal freedoms guarateed by the 'rule of law' the fact of the matter is that liberal democracies across the world systematically exclude groups of people from the 'rule of law'. This is particularly aided by the notion of the 'state of emergency', when certain protections are necessarily suspended to 'defend' the public.

Thus the 'state of emergency' always serves to justify departures frm 'normal' legality. This is where the position of the Law Lords in the Belmarsh detainees case becomes problematic. Most of the Law Lords didn't question the fact that a 'state of emergency' did exist, they merely decided that the measures used to combat said emergency were disproportionate. Negri and Hardt have noted in Multitude that the state of 'emergency' has become the norm in liberal democratic society. There is a 'permanent exception' that constantly justifies the exclusion of certain people from 'the rule of law'.

The point is though that as this 'emergency' becomes more serious, more generalised, the class of people who are potentially affected by these 'gaps' widens. Witness the terrifyingly indeterminate definition of terrorism in the the Terrorism Act 2000. As the article states:

The most significant part of the Prevention of Terrorism Bill is the fact that it expands the suspension of law to include citizens. It puts an end to a double judicial system: rule of law for citizens and pure violence for foreigners. The suppression of habeas corpus is extended to the whole population. It is now a generalized state of exception. This law, like the American Patriot II project, must be envisaged as the first step in a process intended to extend measures that suspend the law to the entire population, including citizens, within the context of the war on terrorism. The home secretary already revealed this project. He also spoke of the possibility of trying simple suspects in special courts of law. The accused would not have the choice of his or her attorney. The latter would be selected by the executive power, on the basis of a list approved by the secret services.

This is important. Whilst the systematic exclusion of certain persons from the legal system is never something to be taken widely, an increase in its scope is of course worrying. It represents the increasingly overt politicisation of the law, and a continued disintegration of the legal form.

Of course, when one rationally examines the situation there really is no state of emergency to speak of. One wonders just how much threat there truly is from terrorism. Even those 'big' attacks that do succeed in reality kill very few people. If one was to judge states of emergencies from deaths surely the most pressing state of emergency is caused by the impersonal violence of global capitalism, which kills untold numbers of people every day.

But if we have reached an 'emergency', the one wonders when it will ever end. If this is an emergency, then for the foreseeable future we will surely be living through an emergency. This of course has implications for the 'rule of law':

However, this law is no more than formally part of a state of emergency. It gives judicial prerogatives to the home secretary. A person is designated as terrorist not by the decision of a court, but by a certificate issued by a representative of the executive power. At no point does the latter have to justify a decision that is applied to simple suspects. Objective facts, which should be used as the basis of these suspicions, are not even necessary since they remain secret. It suffices that the administrative authority assert that it is detaining the suspects and that this declaration be corroborated by a court. What is the guarantee of a judicial control that is exercised without the possibility for the defense to assert its rights, even to know what it is being charged with? What independence can the judicial power assert in a decision-making process in which it does not have the means to verify the information that is given to it as well as the means of proof?

The Bill may have been defeated in the Commons (in part), it may be delayed and troubled by the Lords, but it represents a trend in liberal democracies towards the overtly political rule of pure violence. Much as notions of the 'law' as non-violence should be derided, it remains true that the law is violence exercised within a specific form, one in which individuals are interpellated as formally equal, and at least have a minimal protection, insofar as 'legal language' goes. This tendency to remove even those slim protections is surely a worrying one.

Lords threaten rough ride for anti-terror bill

Should we support processes we disagree with if they are producing outcomes we do agree with?

Indeterminacy

Hmmm...long time no update. I had actually started to write this post about a week ago whilst slightly intoxicated by it wouldn't 'flow', so now, several essays and lots of reading later, I'll have a go.

O.k. before I outline the indeterminacy of legal reasoning I thought I'd outline the object of critique, i.e. the notion that legal reasoning is determinate.

Essentially a lot of liberal legalism posits that there is a discrete type of legal reasoning. This reasoning creates 'rules' of law, which are then applied to different situations. The different situations are predictably resolved by these rules and we all live happily ever after.

The indeterminacy (or under-determinacy) thesis makes several observations:

1. A rule cannot guarantee a particular result when applied to a particular situation (thus on the basis of the rules we cannot predict judical decisions).
2. That 'legal' reasoning is not sufficient to decide how to resolve a particular situation, hence some 'other' type of reasoning must be used.

Firstly, I will talk about the causal ineffectiveness of legal reasoning. Some people notably, the crits, adopt the view point that the indeterminacy of legal reasoning is rooted in the general, or global indeterminacy of language. I myself have a problem with this, because as we all know language may be under-determinate but meaning is given through community discourse.

Language, in terms of the law, can be a starting point for indeterminacy, if we confine it to the legal sphere. It is true that it is often unclear what a particular term means. In terms of the law it is not true that a 'community' gives a term a fixed meaning. This is because the very structure of the legal community, and the legal form, leads to contestation, lawyers are premised on the idea that legal language is contestible.

Furthermore, because statutory langauge will be necessary indeterminate it must be interpreted. It is a mistake to think of interpretation as being about divining what a word means or what it was intended to mean, rather interpretation is about giving effect to something, or resolving a particular situation. Furthermore, there are many contradictory canons of statutory interpretation, that mean a 'word' can be construed in innumerable different ways because of 'legal reasoning'.

Secondly, and linked to this is the fact that 'words' and rules have got to be applied to facts. If, as a good Pashukan-ite, one sees law as being rooted in form then this becomes important. Law's primacy lies in resolving disputes between formally equal legal subjects, thus the application of a 'rule' to a particular dispute constitutes the dynamic 'essence' of the law. Thus it is necessary to see if a particular situation is subsumed beneath a particular rule. This can be problematic in practice, as every situation cannot have been contemplated by the 'rule maker'. Thus the court must somehow decide whether a given situation falls within a particular rule.

Application is even more problematic when we're discussing the common law. This is because most common law cases contain numerous, different, lengthy judgments, with dissents etc. This means that a judge, when examining 'precedent' has no clear line 'telling' him/her what to do, since the precedent can't 'tell' the judge what to do, some other criteria must suffice. This is worsened by the fact that every precedent can be read broadly or loosely, or even 'confined to the facts'.

Also very problematic is the combination of the meaning/application of certain terms such as 'reasonableness', 'fairness' etc. These terms are highly contextual and are so broad that they cannot guarantee any particular result.

Thus if legal reasoning cannot guarantee a result how are decisions made? Evidently there must be some other (perhaps unconcsious) criterion that goes into the decision, this is where material conditions make their impact.

Blair defeated on 90 days

Nuff said, and I'll put up an indeterminacy post soon too, promise.

A hopeful huzzah!

Well, it appears that MPs have more spine than I credited them with (well done to Bob Marshall Andrews too):

Senior Downing Street sources said that although the Prime Minister remains personally convinced that allowing police to detain suspects for up to 90 days without trial is essential to combating the threat from al-Qaeda, he has now accepted that in the present political climate he will have to compromise.

Now, obviously all of this does not bode well for the authority of Tony Blair (always a good thing) but I'm sure other blogs will have a better time explaining this than me. Also, rather good news on the glorification front:

The Home Office will also offer concessions this week over separate plans to criminalise religious hatred - bowing to demands from peers for safeguards to protect freedom of speech - and over proposals in the terror bill to outlaw the glorification of terrorism, introducing new safeguards making clear what would trigger a prosecution.

Whilst I suspect this will not register the offences perfect (and as soon as I can't find the modifications I'll examine them), at least it makes things a little clearer. Though I suspect that the anti-imperialist left might still face problems, insofar as the definition of terrorism is still ridiculously wide, though again it's a case of 'more on this when I get it'. Lord Woolf was up to his old tricks too:

He spoke after chairing a London lecture at which Israel's chief justice, Aharon Barak, said judges must 'protect democracy both from terrorism and from the means the state wants to use to fight terrorism'.

Woolf agreed, adding in an unprecedented intervention: 'Every time you move the goalposts, you are accepting a different level of what is acceptable. That then becomes the new starting point, whereas before it was the last point. And that is the case with the length of time one can hold people in custody without charge.'

Aside from the irony of Israel's Chief Justice saying what he did, Lord Woolf is again emphasising this odd trend of judges operating to defend progressive acheivements. And on irony:

Blair is said to be privately 'exasperated' by MPs' refusal to accept the police argument that a case cannot be properly built against terrorists within the current permissible period of 14 days, and has accused the rebels of playing politics.

As late as Friday, he was understood to have been insisting on toughing out the vote.

'People have to realise that using a bill like terrorism to defeat the Prime Minister is not in the Labour party's nor the country's interest,' said one senior ally. 'He's not going to play games with people. As soon as he ceases to pursue what he believes in, he's dead and, more importantly, the Labour party is dead.'

Playing politics? What does Blair think he's doing? How is a smear accusing rebels of putting the defeat of Blair against 'national security' not playing politics?

Tone

Tony is pulling a strop it seems:

But Mr Blair insisted that his flagship terror bill must go through intact, and challenged Labour rebels to consult their constituency parties and voters this weekend to see if there was public support for the measure.

Fat chance.

Though one hopes my favourite topic will also be addressed:

The biggest shock to the government came when an amendment tabled by leftwing Labour backbencher and QC, Bob Marshall Andrews, making it clear that people had to show that they intend to induce and encourage terrorism before they could be prosecuted was defeated by one vote. He warned that both he and Cherie Booth could have been arrested under the bill, and quoted the prime minister's wife as saying: "In view of the illegal occupation of Palestinian land, I can well understand how decent young Palestinians become terrorists."

Mr Marshall-Andrews said: "There is no defence, there is no proviso which is placed in the act which would enable Cherie Booth QC, if the director chose to prosecute her, to defend herself."

bwhahahaha

Charles Clarke is being harried it seems:

Home Secretary Charles Clarke has moved to head off a further revolt over new anti-terror laws after the government's majority was cut to just one vote.

Although they're all still pretty much fixated on the 90 days internment (not that such measures are right). Also:

Earlier, 33 Labour MPs rebelled against the government over plans for a new offence of indirect incitement or glorification of terrorism.

Which is always nice. They want more appropriate measures:

But critics tried to force changes so people could be prosecuted only if they intended to incite terror.

Which is suppose is better, but still doesn't address the problematic definition of terrorism.

Clarke 'flexible' on terror laws

Well apparently so, anyway. I personally haven't talked much about the detention period, I guess I oppose extending it so much, but I have had other things on my mind. Nevertheless:

"I am ready to look for flexibility to achieve agreement," he told Today, adding: "I don't think 28 days is long enough to meet the concerns that the police have set out, but of course I think it is necessary to see what agreement can be reached."

Whilst this is of course good news I can't help but feel that these are cosmetic measures, designed to curb the waiverers, so as to pass some of the frankly terrifying legislation on the 'glorification' of terror. And of course the hegemony of anti-terror rhertoric guarantees people will fall into line.

I mean look at the accusation that was levelled against the Lib-Dems, they are apparently:

"[W]eakening the common front of democratic politics against terrorism"

Heaven forbid that one might object to the word of the Lord Home Secretary. Again, however, some people are seeing that this law will either entail mass criminalisation or huge amounts of discretion and political targetting:

Mr Clarke has said existing laws covered somebody urging people to attack a particular Tube train.

But the new offence would target those urging attacks on the Underground network in general, he says.

Critics of the measure say the new offence has been drawn too widely.

They question whether it could have been used against those praising Nelson Mandela when his African National Congress was using armed struggle against apartheid.

Not only those people however, because as I have tried (repeatedly I might add) to drive home, terrorism is:

"terrorism" means the use or threat of action where-
	(a) the action falls within subsection (2),
	(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
	(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
	(2) Action falls within this subsection if it-
	(a) involves serious violence against a person,
	(b) involves serious damage to property,
	(c) endangers a person's life, other than that of the person committing the action,
	(d) creates a serious risk to the health or safety of the public or a section of the public, or
	(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

Which rather destroys Charles Clarke's idiotic bumbling:

He said he could not "think of a situation in the world" where terror was justified for political change.

Committee chairman John Denham said this "presumably" meant Iraq was "the war to end all wars".

Mr Clarke replied: "It's not terrorist violence. This is about terrorism, not about violence used in the way that you describe.

So apparently, the Iraq war did not involve 'the use or threat of action', that 'advanc[ed] a political cause', and we all know it didn't involve violence, damage property, endanger life, create health and safety risks or interfere with an electronic system. Either that or Mr. Clarke doesn't understand his own legislation.

Maybe someone should prosecute the government as soon as this Bill is passed, though we know it would never be allowed to go to court, it would still be fairly fun, and entirely within the bounds of the statute.

Human rights

Lenin has posted an interesting article on Human Rights over at the tomb. Again, however, I think that there may be some, in my opinion, misconceptions and exaggerations going on.

The trouble with human rights, then. In itself, a codified set of rules about how human beings should be treated is both valuable and necessary.

I guess I might agree with this. But I would first point out that by the very notion of rights, we presuppose the legal form, which means we presuppose a particular set of material conditions. Which is why I'm not sure I agree with:

the reason it could do this is that it attempts to ground politics in something essentially apolitical.

Insofar as human rights are rights, i.e. the action of a being, interpellated through the legal form as a legal person they presuppose the existence of commodity producing society, this makes them deeply political, in fact their very structure is tied to a set of material relations. This being said, I suspect I have a slightly more positive view of human rights than Lenin, firstly:

Political contexts are eschewed, and instead shocking instances of brutality are interpreted as attesting to something constant in human nature that must be suppressed in various ways - usually be reducing the political sphere, since it is precisely in the domain of democratic possibility that governments can be beholden to 'special' interests rather than universal ones.

This division is surely premissed on the fact that political content cannot be expressed through the legal form. Yet, in fact, the converse is true. Every particular legal conjuncture is deeply political and hugely contestable. It does seem somewhat odd to privilige a particular 'political' sphere, especially when said sphere is structured around capitalism.

Wadham of Liberty argues that "Elected parliaments in this country and around the world have shown that, on their own, they are not able to protect human rights properly.". This lead him to call for removing the power to appoint judges from the elected government and place it in the hands of "an independent appointments committee".

This, in itself, has always been pretty problematic for me. Firstly, it seems that Lenin is exalting our 'elected government', this presumably is the same government who sent us to war in Iraq. Surely Lenin, following his namesake should ask the question: Who, whom? I think it is also worth noting that judges and their decisions are not entirely divorced from the sphere of the political, that is to say class struggle, would Lenin object to judges declaring the Terrorism Act incompatible with the Human Rights Act (the objection being based on the concept of a democratically elected government).

Human rights as an ideology is a potent mobiliser of support for imperialist interventions and, as mentioned, a formidable guarantor of legitimacy.

Correct, but with at least the possibility that human rights can be contestable.

The problem as I see it is thus:
1. What is the political? Although Human Rights movements insist on their apolitical nature we all know the truth, human rights are deeply political. If this is the case they are contestible, even if ultimately they need to be transcended.
2. If human rights can be political then this means that it is not necessarily true that their use is anti-democratic (although readers will know I have a serious problem with the legalisation of politics). Democratic politics, as taken as liberal democracy, are highly exclusionary insofar as they ignore the political dimension of the economic, would we say a strike was anti-democratic because it didn't involve formal political channels.

Ultimately I think I am of the view that human rights are a lot more complex than some people would like to admit. Firstly, they are obvious products of bourgeois society, inasmuch as the legal form is rooted in commodity exchange. This being said, and within the limited context I have previously outlined, with the growth of the legal form as primary social regulator, political dispute, regardless as to its progressiveness is expressed through the legal form. Although this is subject to a number of problems I have outlined it cannot simply be dismissed. The scope of a right is demarcated by particular material conditions.

China Miéville has shown that international law, is structured by the violence of imperialism (though I have my slight objections on this point). But human rights law is more difficult to pin down on this point. Because human rights law is related to legal human subjects it can be successfully appropriated by 'the people'. I mean, do any of us complain about the decision in Pinochet (notwithstanding the pathetic getout clause).

Whilst we should struggle to overcome human rights, I think our approached should be nuanced, Lenin writes (and quotes):

David Chandler, in his perspicacious book, (From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press, 2002), has a better suggestion. The active subject must be re-emphasised. Mass politics must be reinvigorated, and we must make the most of "people's capacity for autonomy and collective rational decision-making, a capacity denied by the proponents of ethical regulation from above".

The point here is that the two are not mutually exclusive. Mass politics is of course primary but that does not mean efforts should not be made to re-capture human rights law. Human Rights are also not a priori connected to regulation from above. One can imagine a situation where certain human rights are seized upon and used against the oppressors (remember also that some human rights are economic).

The important thing to remember is that the legal form is not just a product of someone's imagination, it is an objective form posited by a certain set of material relations. Therefore, whilst we attempt to transcend its narrow form we must also engage with it and push it to its limits, for change is never so stagist as to move from 'legal egoism' to selfless mass action, the new is expressed through the old, and then it transcends it.

Sanctioned corruption

Oh what an interesting fact I found out in my contract lecture yesterday. Apparently, it is perfectly fine for the police to take payment, for special services rendered to individuals. From the Police Act 1996:

25. - (1) The chief officer of police of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority.

'Special services' indeed. These services have included stopping striking miners from picketing (Glasbrook Bros Ltd. v. Glamorgan CC [1925]). One would imagine it would be the sort of thing used against protestors too.

What can I say?

Old news...

...nevertheless nicely written. A week ago now, Seumas Milne wrote a very good article in the Guardian on my bête noire, this horrible Terrorism Bill. I particularly liked this passage:

In fact, under the terms of the bill, anyone who voices support for armed resistance to any state or occupation, however repressive or illegitimate, will be committing a criminal offence carrying a seven-year prison sentence - so long as members of the public might reasonably regard it as direct or indirect encouragement. Terrorism is not defined in the bill as, say, indiscriminate attacks on civilians, let alone an assault on civilian targets by states - but as any politically motivated violence against people, property or electronic systems anywhere in the world. This is not only an assault on freedom of speech and debate about the most contentious subject in global politics. It also makes a criminal offence out of a belief shared by almost every society, religion or philosophy throughout history: namely, that people have the right to take up arms against tyranny and foreign occupation. Clarke made clear on Tuesday that this was exactly his intention. He could not, he said, think of any situation in the world where "violence would be justified to bring about change".

Which means, as most people of even a vague intelligence have realised:

Clearly, that did not apply to the invasion of Iraq or the bomb attacks on street markets carried out in Baghdad by US and British-backed opposition groups before 2003. But, as the mayor of London pointed out yesterday, support for Nelson Mandela, the wartime resistance and any number of anti-colonial liberation movements would all have been crimes under this bill.

Though as we know, Blair has (oddly) been prattling that it's all a matter of common sense, clearly the old boy hasn't read the Terrorism Act 2000. But, as we all know, this law is not 'designed' to 'catch' everyone, it's there to catch a few people. It's kind of like infect a whole population with a virus, and then only giving certain people the cure, as Milne puts it:

In practice, of course, the law is intended to be used selectively: it is aimed not just at those who praise bomb attacks on the London tube, but at Muslims and others who believe that Palestinians, Iraqis, Afghans and others have a right to resist occupation.

Which, of course makes me seriously worry about the fate of the anti-imperialist left. As Milne correctly notes, the likely effect of this legislation is to likely to simply 'alienate' those Muslims who serve as its target. And we all know what this sort of thing ended up doing in Ireland.

All I hope is that people can avoid the smears of not caring about public safety and oppose this terrifying law.

Zizek

My opinion on Slavoj Zizek is pretty similar to my opinion on Walter Benjamin. Both of them say some really interesting things, but sometimes I'm left staring at the page/screen thinking 'what the hell is going on'. In Zizek's case me having a rudimentary, at best, knowledge of Lacanian psycho-analysis is no help. However, for those of you who are subsrcibed to New Left review, he wrote an interesting article last issue, entitled Against Human Rights. Now, obviously since it was Zizek the subject matter strayed quite a lot. One thing that I really agree with him on is the role 'rights' play in depoliticising struggles, and de-linking the economic sphere from our attention. As Zizek puts it:

However, the question is: what kind of politicization do those who intervene on behalf of human rights set in motion against the powers they oppose? Do they stand for a different formulation of justice, or do they stand in opposition to collective justice projects? For example, it is clear that the us-led overthrow of Saddam Hussein, legitimized in terms of ending the suffering of the Iraqi people, was not only motivated by hard-headed politico-economic interests but also relied on a determinate idea of the political and economic conditions under which ‘freedom’ was to be delivered to the Iraqi people: liberal-democratic capitalism, insertion into the global market economy, etc. The purely humanitarian, anti-political politics of merely preventing suffering thus amounts to an implicit prohibition on elaborating a positive collective project of socio-political transformation.

However, I think that Zizek's conception of Human Rights is a bit one dimensional. Insofar as he ignores the positive impact that they can have, in terms of people's lives. This is reminscent of certain Brezhevites, who talk about 'bourgeois' political rights, which we have to counterpose to 'proletarian' economic rights. This is me is nonsense. In a very real sense all rights are bourgeois, inasmuch as their form is rooted in commodity exchange. But this does not tell us everything about their content or their effect in the material world.

Until it is possible to transcend the law it need to be vigorously contested, in line with an explicit class struggle.

However, we should try to transcend the notion of broad generalities of right, becuase (as I have already noted) these rights are indeterminate, and so can be 'captured'. An example can be taken from a recent land law lecture. Here, the lecturer was talking about a generalised 'right' or law for unproductive land to be expropriated and put to better use. Now, on the one hand, this could create good factual situations, where the poor peasantry are able to occupy and use the land of big business (a la Venezuela). Yet the very scope of such a right simulataneously allows capital the power to kick people out of their homes for 'development'.

The 'bad side' of the right is always contained as a 'potentiality' within the right itself but it needs a particular set of circumstances to actualise. What I think it would be interesting to see is how class struggle is able to demarcate the 'scope' of a right, so that its material effect is different. Becuase if content is, to a degree 'up for grabs', people like Zizek might do better to capture the content and engage in critique.