Schmitt?

Yesterday I read an article by William Scheuerman – ‘After Legal Indeterminacy: Carl Schmitt and the National Socialist Legal Order’.[1] Schmitt is an odd character for me and at some point I do intend to make more of an engagement with him, when I get the time. I first came to Schmitt through Neumann and Kirchheimer, and was therefore pretty critical of him. All I really knew about Schmitt was that he was a Nazi and so was pretty shocked when I found out just how popular he was with the new left.

Now I still maintain a pretty critical distance from him, however, in order to understand a whole lot of modern people writing about the law (Agamben, Hardt and Negri, Zizek etc.) and the particular conjuncture we’re living through (permanent state of emergency). This being said I’m not really whether Schmitt can’t be ‘replaced’ with a bunch of other critical legal theorists (e.g. the Crits, the Realists and of course the Marxists).

Scheuerman’s account is pretty interesting. I already knew a lot of what he says as regards indeterminacy. However, I have a few issues with the way in which he addresses it. My biggest problem with what Scheuerman rights is that he seems to confuse indeterminacy with unpredictability. Take for instance his account of how Schmitt wanted to distance himself from radical indeterminacy. Essentially for Schmitt much of the indeterminacy present in the law owed to the fact that different ethnic ‘spirits’ attempt to use the law for their own, radically different ends. Therefore Schmitt proposed a way to render the law more predictable. If the judiciary was purged of all non-German elements and rendered ethnically homogenous, then they would all reach the same conclusion on the ‘meaning’ of a particular norm.

The thing is that this wouldn’t render the law determinate. Brian Leiter distinguishes between two different types of indeterminacy, causal and rational indeterminacy:

‘The Realists famously argued that the law was “indeterminate”. By this, they meant two things: first that the law was rationally determinate, in the sense that the available class of legal reasons did not justify a unique decision … but second, that the law was also causally or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did.’[2]

What this means – of course – is that a predictable legal system is perfectly capable of being indeterminate. It will not be predictable upon the basis of the law but provided one knows what to look at the law could be predictable. Thus even if ‘[l]egal categories are simply “empty vessels” filled by acts of power that force meaning into them’ provided one can make an analysis of ‘power’ one can predict the law in some way.

Of course, as Leiter notes this entails a certain positivistic view as to what constitutes a ‘legal’ source. Thus someone arguing that Schmitt was able to introduce some kind of determinacy into his legal theory might say that the ‘ethnic spirit’ constitutes a legitimate legal source, and therefore the law is not causally indeterminate, furthermore, one might then say that by introducing a racially homogenous judiciary the law is no longer rationally indeterminate, insofar as these ‘legal’ reasons can now justify a unique result.

However, one should briefly note the words of Martii Koskenniemi as regards indeterminacy:

[T]his [the indeterminacy thesis] is not a semantic thesis about the linguistic vagueness of norms. Some rules are clearer than other rules. The indeterminacy thesis deals with relationships between rules and exceptions, counter-rules and the reasons for rules, and shows that even a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule. Because rules are no more important than then purposes for which they are enacted, and because there is disagreement about those purposes (as rules always come about through legislative compromise over ‘conflicting considerations’). It is always possible to set aside a rule. Thus, all law (and not just semantically unclear law) is infected by indeterminacy. There is, in this sense, no middle-of-the-road solution at all: even one that initially seems such, is an occasionalist reliance on a momentarily hegemonic solution.[3]

What is important to note here is the notion of a ‘momentarily hegemonic solution’, Schmitt’s theoretical analysis proposes a solution that is clearly based on a momentary hegemonic solution. Determinacy and meaning are ‘imposed’ from the ‘outside’. Scheuerman himself notes that Schmitt’s solution was ultimately ineffective and in fact ‘consistency was guaranteed, first and foremost, by institutional and political mechanisms’.[4] What seems puzzling about this is that Scheuerman is contrasting the purging of the judiciary with ‘political mechanisms’. Yet surely the purging of a judicial caste is the quintessential political act. What I think Scheuerman is trying to say is that the hegemony of meaning is guaranteed through a continual imposition of political mechanisms. Yet this is not unique to Nazi Germany, all societies have some way in which ‘politics’ are able to determine legal results.

The difference is in that most societies these politics are contestable and different classes are able to, in some way have an effect on the legal process. Nazi Germany is a particular case, and it’s something I want to look into more – namely the relationship between monopoly capitalism, Nazism and class struggle. One day I intend to write more on this, as this is the point at which law, fades into pure politics and administration. So one day y’all are going to hear an invocation of Adorno, Freud, Palme-Dutt and Gramsci on fascism and I will attempt to relate it back to the legal form.

At the end of his piece Scheuerman tells us that ‘challenge’ that Schmitt lays down for radical indeterminacy:

At the very least, it seems incumbent on some contemporary radical jurists to do a better job explaining why their embrace of the radical indeterminacy thesis need not succumb to the ills so evident in Schmitt’s National Socialist writings. The case of Schmitt clearly contradicts the dogmatic assumption shared by some jurists today “that liberating those who wield legal power from the ‘mistaken’ belief that legal doctrine constrains their actions will have a progressive effect.”[5]

Scheuerman, quotes Larry Solum here, and I think they’re a both a bit off base. Firstly, I think it’s a very small minority of jurists who believe that a belief in legal indeterminacy will have a necessarily positive effect. In many respects I’d say the opposite is true, knowledge that ‘legal doctrine’ is merely a vessel can be disastrous. One merely has to observe some of the decisions of class conscious members of the English judiciary to see that once politics is explicitly let in it can be a bad thing. This being said surely what the indeterminacy thesis posits is that knowledge of the law not being determinate will have very little effect on legal decisions. For even if one acknowledges that the a unique result is not capable of being achieved through the available legal reasons one nonetheless needs a legal ‘ladder’ with which to reach a particular result. Thus even if one was aware of the lack of binding legal reasons one couldn’t ignore the law altogether. Furthermore, even if one does recognise law is politics (in a certain sense) it does not follow that its progressive, that depends on one’s view of politics (and I’m pretty sure most ‘critical’ legal theorists do not see politics as automatically progressive).

One ought also to recognise that post-liberalism can take many different forms. I personally would vastly prefer liberal-legalism to Nazism. But post-liberalism need not necessarily be Fascistic, and post-liberal social regulation need not be legal in form.

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[1] 19 Cardozo Law Review 1743

[2] Brian Leiter, American Legal Realism, p.3

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

[4] Scheuerman, op cit, p.1766

[5] ibid, .1769

Fundamental contradictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[3] Kennedy, Structures 213

[4] Kennedy, Structures 214

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

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

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

[8] Jabbari, p.541

[9] Mieville, BER 54

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

[11] MER, p.262

[12] MER, p.262

[13] Capital, p.196

[14] MER, p.477

[15] Capital, 204

[16] MER 704

[17] MER 717

[18] GTLM 70

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.