Such a contradictory characterization may horrify the dogmatists and scholastics; we can only offer them our condolences.
TrotskyFootnote 1
1. Introduction
Emil Cioran often likened the experience of abandoning his native Romanian for French to submitting to a straitjacket.Footnote 2 Indeed, the language in which he would go on to secure his reputation was itself, he wrote, best understood as ‘the combination of a straitjacket and a salon’.Footnote 3 It was only by undergoing an ‘exercise in ascesis’,Footnote 4 suspending his commitments to what he regarded as an earthier, less regimented tradition, that he had been able to don the garb of a French author, if still only as a ‘Balkan reject’.Footnote 5 The rigour and crispness of his adopted tongue flew in the face of his desire. The severity of its lucidity stifled his passions, or simply channelled them along directions deviating from their natural path. ‘[Y]et’, Cioran went on to observe, ‘it is precisely on account of this incompatibility that I have attached myself to this language’.Footnote 6 So much so that what caused him the greatest grief of all was to see that ‘[t]oday, when this language is in full decline, . . . the French themselves do not seem to mind.’Footnote 7
Approaching international law with what has customarily, if somewhat loosely, been labelled a ‘critical’ eye is frequently said to engender similar discomfort. Lift the cover off any of the discipline's standard texts, from Vitoria through to the present day, and one is immediately confronted with a mass of rules, principles, standards, and norms. Strung together between the covers of one or several volumes, usually with extraordinary care, occasionally as so many leaps in the dark, these texts – nearly always enterprises on a mammoth scale – strike even sympathetic readers as lacking the kind of consistency to which they aspire. Try as one might, one finds it exceptionally difficult, if not altogether impossible, to shake the feeling that little of this gels as firmly as it should – and, further still, one feels that it is precisely on account of its attempt to achieve coherence that international law remains as vulnerable to doctrinal and theoretical fissures as it does. One does not need to revive the old legal realist bogeyman of ‘indeterminacy’ to recognize as much. The facts speak for themselves. International law is an aggregation of discrete elements – of doctrines developed, argumentative patterns refined, and institutions spawned on the basis of widely divergent, often conflicting, experiences. As much a ‘bramble bush’, to borrow Llewellyn's felicitous phrase,Footnote 8 as municipal law ever was.
Yet this is by no means all that one finds. Yes, the canon of international law is riddled with lacunae, tensions, and so on, its armature not nearly as stable or self-standing as is still sometimes assumed. This much is evident enough from any examination of the traditional – not to mention the not-so-traditional – sources. But not only does international law strike one as having a dynamic very much its own, this dynamic clearly derives a great deal of its force from a commitment to formal consistency. International law may fall short of this or that standard of rationality. It cannot, for example, lay claim to the Herculean drive for ever greater levels of ‘integrity’ claimed by Dworkin for a judiciary-driven common law,Footnote 9 even when this model is reconstructed in line with a theory of discourse ethics that prides itself on its proceduralist account of inter-subjectivity.Footnote 10 But international law is not for that reason any less compelling. Indeed, to the extent that one takes it on its own terms rather than assessing it in accordance with some pre-existing criterion of rationality, to the extent, that is, that one is willing and able to enter into its own practice instead of evaluating it in relation to an ideal which one has posited or imagined in its stead, one discovers rather quickly that one's intuitions and opinions have come to be steered along particular avenues – that one has, in fact, internalized international law's basic ‘grammar’ as a kind of second nature.Footnote 11
It is here that there comes to the fore the central problematic around which circles both this essay and the volume it reviews, International Law on the Left. In a nutshell, what a critique struggles with most incessantly when confronted with the international legal canon is arguably the most basic question of all that can be posed about international law, and perhaps law generally: what exactly is one to make of its insistence on form? Of, say, the fact that it supplies formal standards for assessing claims to statehood, as in the Montevideo Convention, but hesitates to broach the substantive roots of those claims, a messy amalgam of disparate social, political, and economic factors no criteriology could ever fully capture? Or the fact that it attempts to regulate the conduct of war, down to the wearing of badges by prisoners,Footnote 12 but allows inquiry into the grounds and possible justifications for war only in the most oblique and roundabout sense – and even then only by way of Chapter VII of the UN Charter? Or, more generally, and to borrow a famous distinction from constitutional theory, the fact that it prioritizes the pouvoir constitué of inter-state relations (complex procedures governing diplomatic intercourse, the treaty-making power, the exercise of jurisdiction, etc.) over the pouvoir constituant that drives them (the even more complex social, political, and economic processes by which such procedures are formulated, disseminated, transformed, etc.)? To use Cioran's term, is international law's prioritization of form over substance a straitjacket? If so, how tight is it? How exactly does it bind? And what does it mean for one to be so bound? Does immersion in international law's formal structures result in a failure to engage with their substantive distributive consequences? What implications, if any, does such immersion have for the political projects to which international lawyers commit themselves? Should one try to break loose from the jacket, throwing one's weight behind a ‘purely extra-legal’ alternative of some sort? Something smacking of ‘the political’, perhaps, a constituent power Schmittians like to see as rooted in concrete, normatively incalculable decisions?Footnote 13 Or should one instead turn and embrace the international legal form? And not because one feels compelled to, or grudgingly accepts the prudential advantages of doing so in this or that set of circumstances, but because one is, ‘on balance’, so to speak, convinced of the merits of adopting this approach?
Considered superficially, the question of form seems irrelevant, even nonsensical. What, after all, would law be were it not, in some sense, formal? Is not formality a necessary condition of what it means for law to be law in the first place? Is law's very existence not dependent on its opposition to the informal, the inchoate – that which it codifies, enshrines, rationalizes? The real concern, though, the concern which animates most ‘critical’ international lawyers today, relates not so much to the philosophical foundations of formalism in international law, and even less to the normative ‘sources’ of formal obligation in international law,Footnote 14 as to the specifically political implications of the international legal form. What does international law's inveterate insistence on the formal entail from a strategic standpoint? Does the fact that international law's formal structures guide one's thought and action as stringently as they do mean that they present one with viable means of waging political struggles? Or does this fact instead show up international law's complicity in the production and reproduction of relations of domination? Most importantly of all, is it even remotely helpful to countenance such questions in abstracto? Must any attempt to answer them not call forth socio-historically grounded explanations of international law's actual operation in particular contexts informed by significant power differentials?
It hardly needs mentioning that this essay cannot hope to answer such sweeping questions. Even so, the following notes, tentative and fragmentary though they may be, will hazard something of a response to the question of international legal form. This response may strike the reader as evasive, even metaphysical in its implicit indebtedness to Hegel,Footnote 15 but is, I think, the most honest one possible: simply put, international law's formal structures are both constraining and enabling, both limiting and empowering. Inasmuch as international law confines and conducts, it surely blocks certain paths and cancels certain opportunities. Some claims, as we all know, simply cannot be articulated and advanced with the imprimatur of legal legitimacy. Many arguments (often dubbed ‘moral’ or ‘political’ for want of more precise descriptors) just cannot be put forward with a properly legal mandate. And yet, alongside this limiting function, international law also equips its wielder with an enormous range of armaments. From self-determination's appropriation by national liberation movements in Asia and Africa in the heady days of decolonization – when the very meaning of sovereignty was contested as part of wide-ranging debates on the applicability of state succession rulesFootnote 16 – to the time when it was still possible to see in human rights something apart from a nefarious collaboration with ‘good governance’ and ‘democracy promotion’, competence in international law has always been a prized asset for counter-hegemonic action. Mohammed Bedjaoui's proposals for a ‘new international economic order’ in the 1970s – a somewhat tired point of reference, admittedly, but still an astoundingly illuminating one – reveal both sides of the coin well. For Bedjaoui, writing at a time when the Third World sought to renegotiate the international legal system's constitutive rules,Footnote 17 international law supplies just the sort of weaponry one needs for an analysis of existing institutional hierarchies and configurations of power. Just as self-determination bolstered the Algerians’ ‘fundamental sociological unity’ during the war against France, rendering divide et impera tactics all but toothless in the process,Footnote 18 UN resolutions offered avenues for circumventing great power influence, and ‘common heritage of mankind’-type doctrines promised to work wonders for the entire ‘international community’.Footnote 19 But international law also restrains one's hand at several key points, evidenced, as Rajagopal has recently stressed, in Bedjaoui's own residual commitment to institution-building and his by-and-large teleological understanding of ‘development’, both part and parcel of his vision of international law's ‘progressive mission’.Footnote 20 The dynamism conferred on international law by its internal contradictions – a dynamism that is institutional no less than discursive, material no less than symbolic – is an intense and far-reaching one.
Intriguingly, it is those international lawyers who have displayed the greatest sensitivity to this structural ambivalence who have generally attended most closely to the travails of their discipline. In an age in which international law finds itself having to compete with any number of other disciplines, it has become commonplace to denounce international relations, say, as an illustration of what international law is not (or ought not to be) about. Think of Koskenniemi's indictment of recent attempts to integrate international law and international relations as a pragmatic ‘academic project that cannot but buttress the justification of American empire’.Footnote 21 Or of Klabbers's argument to the effect that the felt need for such scholarship betrays a willingness to ‘succumb to the position that political science is, somehow, more insightful than the science of law’.Footnote 22 There is, of course, much to such charges. For one thing, it is undeniable that some nine decades after its emergence as an autonomous discipline, international relations remains as wedded to trends in leading US political science circles as it was in the 1950s, when it received support from caricatured portrayals of interwar international law as a ‘phantasmagorical legalist-moralist straw man warranting condemnation for the Machiavellian “sins of princes” supposed by the realists’.Footnote 23 A variety of alternative methodologies, some of remarkable power, have proliferated since then,Footnote 24 but the instrumentalism of international relations scholarship, emblematic of the ‘managerial vocabulary’Footnote 25 that marks so much US social science,Footnote 26 has not been deprived of its supremacy. Nor can there be much doubt that the rumours of interdisciplinarity's benefits are frequently exaggerated. Mining ‘cognate disciplines’ for homologous insights or contextual considerations is one thing; ransacking them because one believes that international law ‘is like the thin crust of a thermal region of the earth's surface – it cracks easily and when cracked exposes the seething and hissing and bubbling and bursting interior which all land (and all law) at some depth or other encases’Footnote 27 – is another thing entirely. What is most interesting in all this, though, is that it is often the most penetrating scholars of international law (Koskenniemi and Klabbers are representative, but only the tip of the iceberg) who should come to international law's ‘rescue’ with greatest zeal. One encounters here something of the fiery dedication of the newly reconverted: originally stripped of one's naive faith in international law, one re-embraces it on a radically different footing and subsequently goes on to claim it as one's own, often with a fidelity whose intensity is unmatched by even the most steadfast among its conventional supporters. Those who self-identify as ‘critical’ scholars of international law are often more devoted to shielding such law from superficial denunciation than their rivals – partly, no doubt, because they have a strong scholarly and professional interest in determining what does and does not constitute legitimate critique, but partly, and far more importantly, because they have a sharper sense of the fragility and uniqueness of that odd phenomenon that is the international legal form. And the point holds generally. If it is true that programmatic politics concentrates merely passive debates into real interventions,Footnote 28 that it foregoes vague, mystificatory talk of ‘justice’ in favour of forensic analysis and committed engagement with concrete problems,Footnote 29 it is no less true that it is within, and not without, the international legal form that such a politics is to be found for the international lawyer.
2. A divided front
Some time ago, Slavoj Žižek cobbled together something of an ideal-typical taxonomy of the various modalities of struggle to which ‘[t]oday's Left’ feels compelled to have recourse in response to ‘the hegemony of global capitalism and its political supplement, liberal democracy’.Footnote 30 To call the list a motley aggregation would be generous, if not ridiculous. Among other things, Žižek catalogued welfarism, Third Way reformism, ‘interstitial’ resistance à la Foucault, Frankfurt School-inspired critiques of post-industrial technology, direct democracy via the latest products of the ‘information age’, and Heideggerian resignation before the levelling banality of an ‘epoch’ whose ‘new gods’ have yet to arrive.Footnote 31 If the left has always suffered from ‘heresies’ and ‘deviations’, it is now, Žižek was reminding us, even more confused than before.
The book under review may not offer quite the same range of alternatives. But the variety is anything but paltry. At one end of the scale, one finds Miéville's denunciation of international law as a gloss on inter-state rivalry, ultimately little more than a reflection of commodity exchange (pp. 92–132). At the other, one has Roth's attempt to outline Marxism's continuing ‘relevance’ for liberal human rights advocacy (pp. 220–51). Between the two are a number of other approaches – some seeking to engage the Marxian tradition in toto, others interrogating this or that aspect of the tradition with a view to grappling with specific quandaries, and still others toying with proposals to renew or reconstruct it from less canonical, even explicitly anti-Marxist, perspectives. Rather than examining each of these in great detail, let me attempt something of a cross-section, concentrating on what is without a doubt the most significant of the various questions they raise – that of Marxism's relation to the international legal form. I begin by contrasting the chapters authored by Miéville and Roth.
Miéville's chapter is far and away the most combative. Drawing on the work of the Bolshevik legal theorist Evgeny Pashukanis, he develops a classic Marxist critique of international law as the formal veneer of politico-economic imperialism. Pashukanis devoted the bulk of his considerable energy to private law, maintaining that property and contract presupposed relations between equal and autonomous rights-bearers strictly homologous in form to those obtaining between commodities in capitalist exchange and circulation.Footnote 32 Amplifying Pashukanis's own attempt to extend this model to questions of world public order,Footnote 33 Miéville presents international law as an abstract, de-socialized outgrowth of the struggle among states to secure control over increasingly large quantities of territory and resources. His point is not to deny international law's ‘properly legal’ credentials, nor to denounce it as a ‘primitive’ body of law, one that lacks robust normative foundations, functional enforcement mechanisms, and so on. Instead, his claim is that while international law is indeed law, and while it clearly exerts significant influence over a wide range of social and political processes, it cannot provide a home for projects aiming to revolutionize the existing international order systemically.Footnote 34 This is so because international law is grounded in the same social and political relations as those that produce imperialism, and can therefore do little to check the coercive power of dominant states: doctrines of sovereign equality nearly always mystify the asymmetricality inherent in international relations; talk of self-determination obfuscates the violence of these relations almost without exception (pp. 121–7). Miéville's across-the-board condemnation follows shortly thereafter: since there is ‘no prospect of any systematic progressive political project or emancipatory dynamic coming out of international law’, our ‘best hope for global emancipation’ lies in a ‘political project’ that would ‘eradicate the forms of law’ (pp. 130–1).
Roth toes a very different line. Setting out, as he puts it, to rescue ‘Marxian thought from the dustbin of activist history’ (p. 221), he argues that a ‘human-rights-friendly reading of Marx’ (ibid.) is available and can do much to further the liberal human rights project's core aspirations. One dimension of this revivified project would seek to enhance equality in political decision-making processes by orienting electoral procedures towards the ‘substantive social empowerment of the resource-deprived’ (p. 244). Another would aim to show that liberalism's attempt to justify as ‘neutral’, ‘non-coercive’, or even ‘natural’ its prioritization of civil society over the state warps appreciation of the fact that ‘private’ relations in liberal societies are always already shot through with a dominant ‘logic of market rationality’ (p. 249). Indeed, Roth notes, ‘[t]o abjure “non-neutral” collective decisions is . . . to impose by default a determinate collective view of what individuals ought to be free to do’, surreptitiously marshalling a conservative and oddly idiosyncratic teleology even when explicit appeals to ‘individual choice’ and ‘aggregated interests’ have been problematized (p. 250). In these and other ways, Roth explores the interpenetration of Marxism and liberalism, seeking to demonstrate that the former was always embedded in and intended as an internal refinement of the latter. ‘Marxism retains its relevance in the current period’, he writes, ‘not as a comprehensive replacement for liberal human rights theories, but as a source of critique that challenges those theories on the basis of the very values of human freedom and dignity that they espouse’ (pp. 221, 250).
Miéville positions himself to the left of – and, arguably, exterior to – received international law, seeing in it little which escapes the logic of liberalism and which might be salvaged for a programme of emancipatory politics. Roth takes his lead from the liberal tradition itself, bringing Marx to bear on what he sees as some of the human rights project's less attractive features. Most schools of Marxism would characterize the distinction as one between clear-sighted ‘revolution’ and opportunistic ‘reform’. Conversely, some liberals would be tempted to see in it an unbridgeable gap between pathological messianism and responsiveness to the needs of human ‘liberty’.
Each of the other contributions falls between these two poles. Chimni (pp. 53–91) enlists a wide range of international legal materials to outline an explicitly Marxist course on international law, arguing that while international law ‘is constrained by the interests of the dominant actors and classes’ (p. 65),Footnote 35 it commands a certain measure of ‘relative independence’ and is therefore capable of lending itself to both diagnostic and rehabilitatory projects on the left (p. 65). (This is a crucially important argument, and one to which I shall return later.) Taking issue with Miéville, for whom ‘the germ-seed of self-determination and sovereignty’ was ‘[e]mbedded even in colonialist international law doctrines’ (p. 123), Bowring (pp. 133–68) argues that close examination of the terms under which Soviet jurists and policymakers engaged with the international law of self-determination reveals that even ‘bourgeois legal norms’ are open to ‘subversion and appropriation’ (p. 168). Carty offers a critical reading of Hardt and Negri en route to sketching elements of an updated Marxist theory of imperialism that would offer guidance as to how respect for sovereign equality might be regenerated (pp. 169–98). Cutler (pp. 199–219) pursues a neo-Gramscian argument to the effect that international economic law is ‘an historically effective social force with both oppressive and emancipatory potential’ (p. 202); since such law is an outgrowth of human struggle, of ‘law-making’ in the strong sense of praxis,Footnote 36 it can be unmade or remade in ways less submissive to dominant forces. Okafor (pp. 252–80) finds both a ‘politics of domination’ and a ‘politics of insurrection’ in Baxi's work on international human rights law: far from succumbing to a deflationary scepticism that would simply cast aside the human rights movement, Baxi demonstrates that this movement is not reducible to bourgeois legal structures (pp. 274–5). Marks's chapter (pp. 281–307) offers an original and incisive analysis of exploitation as an international legal concept that foregrounds the ‘question of beneficiaries’, i.e. the distributive consequences of the international legal system's architecture and operation (p. 305). Marks argues that developing a critical international legal scholarship of exploitation would go a long way to demonstrating that ‘injustice’ is not ‘arbitrary or accidental’ but rooted in the ‘systemic logics’ that inform the international legal order (p. 302). She also stresses that the kind of position Miéville adopts ‘fails to take sufficient account of the contradictoriness that defines our world, and of the immanence of counter-logics, obscured through ideology, but nonetheless available for reactivation in the service of emancipation through critique’ (p. 305).Footnote 37
In a powerful contribution that bears a family resemblance to the stance I adopt in this essay and also positions itself between the poles occupied by Miéville and Roth, Koskenniemi (pp. 30–52) argues that international law ‘might support just causes in the international world and become an object of progressive political commitment’ if it is situated ‘in an historical continuum that recognises its being part of modernity and of a critique of modernity simultaneously’ (pp. 31–2). Marx comes into the picture inasmuch as Koskenniemi regards this double manoeuvre as involving a form of dialectics. Only, in his variant, dialectics is not understood as a ‘scientific’ method for deciphering the basic ‘mechanics’ of historical change. Instead, it is conceived as a theory of hegemony in which regimes of practice grow out of conflict between particular social forces striving to articulate themselves in universalistic terms. Inspired by Laclau and Mouffe,Footnote 38 this understanding of dialectics would ‘enable international lawyers to interpret the dichotomies of international law in light of the historical tensions in the international world’ (p. 39). Tensions as essential to international law as those between consent and ‘justice’, voluntarism and naturalism, and realism and idealism would appear not as elements of a conceptual edifice to which only a de-historicized reason has access, but as live and actual contradictions – contradictions that crystallize into integrated regimes of practice only after this or that social force succeeds in establishing itself as a source of regularity for the larger social system of which it is a part (pp. 40–4). And given the frailty of all such regimes, it would also allow international lawyers ‘[t]o make a distinction between real and false universalism, transformative promise and institutional realisation’ (p. 35). After all, that different claims to universality may be advanced certainly does not mean that each is equally persuasive or desirable. At its best, as in widespread condemnation of the Second Gulf War, international law's ability to serve ‘as an instrument through which particular grievances may be articulated as universal ones’ can, ‘like myth, construct a sense of universal humanity through the act of invoking it’ (p. 51).Footnote 39
International law has always maintained an uneasy relationship with the left (however exactly this may be understood). On the one hand, Lenin's involvement in the development of a specifically proletarian vision of self-determination is well known.Footnote 40 Equally well-documented are the efforts of the Group of 77 and other, more recent, blocs to develop a new – and, at its strongest, avowedly anti-capitalist – international legal and economic system.Footnote 41 On the other hand, international law's heroic pretensions have for centuries found a home in humanitarian intervention; its ambition to craft a new world order, one premised upon ‘co-operation’ rather than mere ‘coexistence’, has resonated with critics of domestic jurisdiction time and again. Worse still, even the crassest forms of colonialism and imperialism, both international legal phenomena, received intermittent support from Marx and Engels themselves – often in terms indistinguishable from the support they received from their liberal apologists. Kant may have synthesized Eurocentric assumptions about state formation and international order common to various strands of the Aufklärung,Footnote 42 and the Mills are rightly infamous for sponsoring a ‘civilizational’ vision of juridico-political ‘maturation’.Footnote 43 But was it not Marx himself who defended Britain in India as ‘the unconscious tool of history in bringing about’ a ‘social revolution’ that had shaken the otherwise ‘solid foundation of Oriental despotism’?Footnote 44 And was it not Engels who described Europe's national minorities as ‘residual fragments’ and ‘fanatical standard-bearers of counter-revolution’, destined to be ‘mercilessly trampled under foot in the course of history’?Footnote 45
Given such an ambiguous relationship, it is not in the least surprising that a variety of divergences – some epistemological, others methodological, still others strategic – should inform a volume whose very title speaks to a desire to map Marxism's multiple legacies in, and implications for, international law. Nor is it shocking that some of these contributions should depart from the mainstream of the Marxian tradition. What one encounters here is a reflection of Marxism's range and diversity rather than an attempt to determine what an ‘authentic’ Marxist theory of international law might have to look like in order to reflect current conditions adequately.
3. The dialectics of international law
The problem of determining whether to locate oneself inside or outside the formal armature of international law is sometimes taken to demand a via media solution of sorts: international law, it is said, is fundamentally Janus-faced – one side insurgent, the other suppressive. Marks explored this avenue in earlier work, demonstrating through sustained analysis of post-1989 ‘democratic governance’ initiatives that ‘critique seeks to show how international law can serve to stabilize oppression but also to unsettle it, to obstruct emancipation but also to enable it’.Footnote 46 Some on the left have objected to this view on the grounds that it rests on an exaggerated claim of even-handedness: international law may not be bourgeois artifice through and through, but it is not for that reason just as receptive to counter-hegemonic manoeuvres as it is to hegemonic ones. In a refreshing analogy, Rasulov, for instance, invites his reader to think of the case of a buttered piece of toast in free fall: the toast has two sides, but will, on release, tend to fall on one rather than the other of these sides. So, the argument goes, if it is true that the formal structures of international law face both ways, it is no less true that they are also inclined at a certain angle, tilted ab initio to favour the more over the less powerful in a contest ‘between equal rights’.Footnote 47 More recently, Marks herself has come to espouse a similar position: it is not enough, she now stresses, to show that democracy is an essentially contested concept, and therefore far less tightly bound to the liberal tradition than imagined by theorists of ‘democratic governance’. This first move, problematizing the ‘false necessity’ of a formal liberal conception of democracy, was – and remains – crucially important. But it is now in need of being supplemented with a second, further move – namely that of providing an explanation of why it is that the thin conceptions of democracy favoured by such theorists came to be accorded the authority they were in the 1990s by unearthing the systemic logics at work beneath and within them.Footnote 48
As the above discussion shows, many of the contributors to International Law on the Left adopt a variant of the ‘Janus’ thesis, although most make concessions of one sort or another to address the kind of point that Rasulov raises and Marks develops. Consider Chimni's conclusion that ‘[t]he characterisation of CIL [contemporary international law], as bourgeois imperialist does not, however, mean that it therefore offers no advantage to the dependent and dominated states and the subaltern classes in the international system’ (p. 64). Much could be said about this important and provocative statement, fully within the purview of the ‘Janus’ thesis and reflective of a good deal of International Law on the Left's spirit. What is of greatest interest for present purposes, though, is the significance that Chimni ascribes to the term ‘however’. Functioning as a kind of hinge, it opens the door to critique and reconstruction even as it closes it on a naively simplistic endorsement of existing law. This is a powerful move, at least potentially, and one to which I, as hinted earlier, am sympathetic. Nonetheless, what the reader is left wondering is whether it is possible to offer an explanation of how it is that international law might be a hinge. That is to say, what still needs to be developed in order to make this argument stick is a properly dialectical theory, one capable of explaining how international law is hardwired in ways that systemically disempower less resourceful actors while permitting these same actors to wage struggles of emancipation in its name. Such a theory would go a long way to elucidating the extent to which what Chimni refers to as ‘a creative and imaginative use of existing international laws and institutions to further the interests of the “wretched of the earth”’ (p. 91) is actually feasible.
At a minimum, any theory of international law that hopes to capture this dialectic would need to depart both from the sort of crude instrumentalism which has so frequently undergirded ‘vulgar’ Marxism and from the kind of rote, pre-reflexive formalism which remains curiously pervasive in international legal scholarship. That neither instrumentalism nor formalism is able to account for law's concurrent claims to freedom and necessity, pliability and firmness, is a lesson many of the ‘relative autonomy’ Marxist legal theorists of the 1970s understood quite well.Footnote 49 But it has received arguably its most sophisticated expression in the work of Pierre Bourdieu. For Bourdieu, law is to be understood neither as an epiphenomenal superstructure, erected on the back of ‘deeper’ relations of domination, be these economic or otherwise, nor as a citadel of pristine rules and principles, essential ingredients of a closed order whose objectivity flows from a reason both ahistorical and apolitical.Footnote 50 At its best, instrumentalism may give rise to calculated reliance on international law – what one Marxist has recently termed a form of ‘principled opportunism’ in which ‘international law is consciously used as a mere tool, to be discarded when not useful’.Footnote 51 At its worst, it misses the specificity of international law altogether, according it little more than a vague capacity for ‘mirroring’ some set of extra-legal phenomena. For its part, formalism mistakes a particular matrix of structures, highly idiosyncratic in character, for necessary and universal features of international law as such, conveniently papering over law's murky origins in a violence which can never be laid aside,Footnote 52 least of all with a ‘closure of convenience’ like the Grundnorm.Footnote 53 It is not hard to see how this would provoke denunciation of international law as irredeemably bourgeois. If international law is never ‘this or that’ law, but ‘the law’ as such, a closed order with a wholly autochthonous logic, then it is unlikely, to say the least, to unfold dialectically into a state of liberation. In such a case, the ultra-leftist refusal to take international law seriously would seem less an instance of revolutionary immaturity, a fruitless attempt to ‘land with one jump in a completely new world’,Footnote 54 and more a case of realism in the face of yet another manifestation of ‘transcendental nonsense’.Footnote 55
To be sure, like any other form of law, international law is capable of being utilized as a ‘tool’. (Tunkin, for example, liked to point out that the UN would have become ‘an instrument by states of one social system against states of another social system’ had it not been for the Soviet Union's permanent membership in the Security Council.Footnote 56) Similarly, it may lend itself to analysis as an abstract system distinguished by internal coherence and imminent rationality. (The same Tunkin wondered whether international law comprised an ‘integrated whole’.Footnote 57) But if one's aim is to explain international law's actual operation, to shed light on both its enabling and its constraining dimensions, what one needs is an account of law as what Bourdieu calls a ‘field of power’ – a kind of ‘gaming space in which those agents and institutions possessing enough specific capital (economic or cultural capital in particular) to be able to occupy the dominant positions within their respective fields confront each other using strategies aimed at preserving or transforming . . . relations of power’.Footnote 58 Such an account would see international law as a social ‘field’ whose constitutive ‘logic is determined’ largely by ‘the specific power relations which give it its structure’ but is not so thoroughly determined by these relations as simply to do away with ‘the internal logic of juridical functioning’.Footnote 59 In other words, it would offer an explanation of international law that, on the one hand, roots it in relations of domination without reducing it to them, and, on the other hand, illuminates the force of its formal structures without absolutizing them. Law, for Bourdieu, is best examined neither as a policy instrument nor as a purely formal system but as a ‘social space’Footnote 60 which both defines and is defined by competition between different actors wielding different qualities and quantities of social capital. Although equipped with its own patterns of practice (its own ‘rules of the game’, if you will, for which every ‘player’ is endowed with an ordinarily unthematized ‘feel’Footnote 61), it is structured by conflict between agents whose capacity for strategizing and manoeuvring remains considerable. These agents internalize many of the discursive and normative structures with which the legal field is buttressed, embodying them in new dispositions. Such inculcation is rarely, however, so exhaustive as to extinguish subjectivity tout court.Footnote 62
As an illustration of what I have in mind, think of the recent resurgence of ‘constitutional talk’ in international legal scholarship. In itself, there is little new in the attempt to conceive the international legal order in ‘constitutional’ terms. More than a hundred years ago, at the turn of the twentieth century, a paper read at a meeting of the International Law Association tried to demonstrate that arbitration agreements were fast ‘crystallising into a code’, and that denouncing international law on the ground that it had yet to reach its ‘final phase of complete development’ was therefore akin to ‘reproach[ing] a child for not being a grown-up man’.Footnote 63 After 1945, describing the UN system in these terms became increasingly common: in a famously open-ended turn of phrase, de Visscher referred to the Charter as a treaty of ‘a constitutional character’,Footnote 64 and even critics of US exceptionalism have repeatedly had recourse to constitutional theories of checks and balances to conceptualize the post-Second World War order.Footnote 65 Nevertheless, there has undoubtedly been something of a resurgence of interest in this kind of thinking of late. We are becoming ever more accustomed to hearing that ‘[f]or lack of a better alternative, the idea of constitutionalism encapsulates much of what contemporary international law, guided by the UN Charter, is striving for’.Footnote 66
What is most interesting about this is not the question of whether this ‘turn to constitutionalism’ reflects a growing appreciation of something inherent within international law's very architecture – something which, in one sense or other, has always informed its ‘essence’, but which, for whatever reason, has hitherto been under-appreciated. Nor is it the question of whether the ‘constitutional lens’ sheds new light on the way in which this or that rule of international law can be utilized for the attainment of this or that policy objective. Rather, what is of paramount interest here is why a particular species of constitutional discourse should have been adopted (or, perhaps, readopted) by particular groups of international lawyers occupying particular positions in the profession at a particular point in time. What are the conditions of the possibility of ‘constitutional talk’ in international legal scholarship today? Why should it be here and now that the international legal order is (once again) imagined as a unified system – one whose ‘constitutional apex’ is perched atop Chapter I of the UN Charter, whose ‘executive will’ manifests itself in Security Council resolutions, whose ‘legislature’ finds a home in the General Assembly, whose principal ‘judicial organ’ resides in the Peace Palace, whose administrative machinery is grounded in an international civil service headquartered in Geneva and Manhattan? What are the causes and consequences of this renewed interest in ‘constitutionalizing’ the international legal order? Who benefits from the ‘constitutional turn’, and how? An inquiry that sets its sights on such questions aims neither to lionize international law (as, at its most extreme, the linchpin of a ‘perpetual peace’ that is ‘guaranteed by no less an authority than the great artist Nature herself’Footnote 67) nor to reduce it to realpolitik (as ‘rule by law’,Footnote 68 or, what is supposedly its Third World flipside, ‘lawfare’Footnote 69). Rather, it aims to describe international law's actual working with a view to explaining why it is that one mode of researching, theorizing, and practising such law – call it the ‘constitutional mode’ – comes to displace, or at least gain ground on, its rivals at a particular juncture.Footnote 70 It is not hard to appreciate the possible political implications of this move.
Adopting this dialectical approach rests less on a Frankfurt School-influenced reconstruction of Marxism (although there is more than a touch of the Frankfurt School in all this) and more on a recognition of the complexity of any truly adequate account of law that the Marxian tradition has put on the table.Footnote 71 Consider Bob Fine's suggestion that law, seen from the standpoint of Marx's own writings, has two primary ‘functions’ – the one a ‘measure of right’ that ‘refers outside itself to convert the labour of commodity producers into legal entitlements’, the other a ‘normative standard’ that ‘refers internally to its own codification, derivation and systematization’.Footnote 72 It seems clear that any attempt to totalize either dimension is bound to result in explanatory failure. The instrumentalist – the limiting case of Fine's ‘measure of right’ approach – simply reduces international law, and law generally, to a pale reflection of extra-legal forces. The conventional formalist – an extreme variant of the ‘normative standard’ approach – naturalizes existing allocations of power and privilege, presenting what is substantively unequal as formally equal. What is needed is neither of these, but an account of international law that sets its sights firmly on its social operation – its embeddedness in relations of domination and its specificity as a distinct mode of regulation with a distinct constitutive logic of its own. A dialectical social theory of international law of this sort would not fetishize international law, but clarify how it is that such law, while not commanding an absolutely autonomous logic of its own, is certainly not a ‘sham’, and how this double-sightedness, this ‘relative autonomy’, endows its practitioners with the power to contest, and not simply retrench, regimes of subordination. Only such a theory could explain why states (and not only statesFootnote 73) on the world's periphery and semi-periphery continue in their efforts to turn international legal structures to their advantage in order to safeguard or strengthen their politico-economic independence.Footnote 74 And unlike other, broadly comparable forms of international legal scholarship, this would be a theory which would foreground questions of power, seeing conflict and (often gross) disparities in resource distribution where they see dialogue and (more or less) free and equal exchange. More concisely still, it would be a genuinely Marxian social theory of international law.
4. Between discourse analysis and political economy
Let me take a step back for a moment and approach the question of the international legal form from a slightly different direction. Perhaps the most widespread source of friction in those strands of international legal scholarship from which International Law on the Left draws is that between those modes of thinking which trace their ancestry to discourse analysis (Koskenniemi being an exceptionally nuanced case) and those which take their lead, directly or indirectly, from political economy (Carty and Cutler being the most explicit in this respect). As a general matter, the post-structuralist assault on ‘binary regimes’ continues unabated, with its most committed advocates insisting that class analysis cannot capture the multifariousness of a world in which stable subjects have given way to ‘rhizomatic’ flows and commercial and communicative networks have taken up the mantle of transnationalism.Footnote 75 On the other hand, neo-Marxist critics of late capitalism continue to target the smugness of the putatively liberatory repudiation of ‘grand narratives’, dismissing calls for a new order that would respond to the demands of a de-centred ‘multitude’ as symptoms of delusion and defeatism.Footnote 76
This tension both tracks and exacerbates international legal theory's most deeply entrenched antinomies. And in one way or another, it feeds into nearly all of the concerns with which the contributors to International Law on the Left grapple. In fact, what one is left with after reading and re-reading the volume at hand is a set of questions – again, at once epistemological and methodological and strategic – about the possibility of theorizing international law in a way that engages questions of distribution without leaving one open to charges of determinism. Even if one does not aim for the sort of integrated theory of ‘justice’ that would harmonize considerations of status with those of class, recognition with those of redistribution,Footnote 77 could one not develop a theory that explains the production of international economic structures without stripping one of an appreciation of the force of ideology in the constitution of international legal norms? And how exactly should one situate oneself in relation to the international legal form when engaging in this enterprise?
However one frames it, any such effort would need to square Marx off against Foucault . . . again.Footnote 78 And this, of course, would give rise to a slate of well-known problems. Foucault's arm's-length relationship with class analysis,Footnote 79 his severely under-developed account of resistance,Footnote 80 his attempt to dispense with ideology critique,Footnote 81 the doubt he casts on the notion of a distinctively socialist mode of governmentality,Footnote 82 and his insistence on dispersing power among a multitude of forces, the bulk of which would operate at the ‘capillary’ level, far ‘below’ that of the stateFootnote 83 – each of these moves is unacceptable, or at the very least questionable, from a Marxian standpoint. While offering an invaluable analytic for mapping the emergence and development of new governmental technologies, Foucault's ‘microphysics of power’ can degenerate into a ‘suspect rhetoric of complexity’Footnote 84 that fails to explain the (past, present, and, in all likelihood, future) centrality of the state. The thinness of his account of resistance, premised as it is on an amorphous ‘challenge directed to what is’,Footnote 85 is no less troubling: lacking a cogent theory of what this ‘challenge’ might actually entail, Foucault risks condemning agents to a docility that would obliterate the possibility of even a modestly effective form of the ‘counter-conduct’Footnote 86 of which he speaks so highly.Footnote 87 Little needs to be said about his ambivalence in regard to the concept of class. Any halfway consistent Marxist would, by definition, have to characterize and prioritize this concept with a strictness that Foucault is not willing to do, although the baggage it brings in its train could, of course, be sifted through in more than one way.
Yet there is clearly a need to grapple with the kind of discourse analysis Foucault exemplifies. For one thing, engagement with Foucault would go some way to generating a more nuanced understanding of international law's role in identity formation, long a source of anxiety for Marxists seeking to counter the charge that they have no means of proving that class, and not race, gender, or some other ‘category’, is the determinative source of human association.Footnote 88 Foucault's analyses of the discursive practices through which socialization actually unfolds, of the manifold techniques of surveillance and regimentation through which identities are constituted and reconstituted, would be of great importance here. After all, if it is true that international law is, to borrow David Kennedy's apt expression, about ‘people pursuing projects’,Footnote 89 both a thick description and a rigorous explanation of how these ‘people’ come to be who they are, and how they come to fashion and attach themselves to particular ‘projects’, would seem to be in order. For another thing, questions of ‘global governance’ increasingly call for a degree of social-theoretical sophistication not matched by classic Marxian theory. As one of the first theoreticians of the left to recognize Foucault's significance, Poulantzas believed that the disciplinary institutions whose historical transfigurations Foucault studied (hospitals, prisons, schools, etc.) had been bolstered with ‘new circuits of “social control”’ in the late twentieth century.Footnote 90 These new ‘circuits’ were far less amenable to manipulation by and through state apparatuses than their less unwieldy predecessors, and could, he argued, be understood only using methods of the sort that Foucault had refined. None of this, however, meant that one needed to jettison the Marxian commitment to analysing state formations. On the contrary, changes to state structures wrought by ‘globalization’ could be appreciated only insofar as the classical model of an indivisible sovereign gave way to a vision of the state as a field traversed by different forces. Indeed, Poulantzas wrote, there was, at root, no great difference between Foucault's research programme and those to which most Marxian political sociologists subscribed: he may have wanted to have less truck with ‘the state as such’ and more with the forces that criss-crossed its constituent apparatuses, but his putative ‘anti-Marxism’ was ‘by and large not related organically to his intellectual conclusions’, giving instead ‘the impression of something tacked on’.Footnote 91 Insights such as these, gleaned through the confrontation of discourse analysis with political economy, remain hard to come by in international legal scholarship,Footnote 92 even when ongoing dedication to more conventional methods has been recognized as little more than nostalgia for a past that has receded into the background.Footnote 93
It is not hard to see how the kind of dialectical social theory of international law outlined above comes into the picture here. If one's aim is to understand international law's actual operation, one must confront both the constitutive force of the discursive frameworks it secretes and the institutional vitality of the politico-economic orders it helps to forge. Put differently, if one takes international law's formal structures seriously, and not because of some misplaced sense of romanticism but because of a commitment to comprehending their unique social power, one cannot turn a blind eye either to the ideological constructs they fuel or to the distributive regimes they sustain. And once one takes this first step, agreeing to approach international law as a social practice with rhetorical as well as institutional dimensions, it is but a short further step to seeing international law as a field of power. This field limits the opportunities available to those operating within it by favouring prevailing configurations of power, but it also arms them with means of resisting, and even revamping, these same configurations. It may, for instance, permit Carla Del Ponte to reject calls for criminal investigations into NATO personnel involved in the bombing of Kosovo,Footnote 94 and to tell Goldman Sachs that ‘international justice is cheap’ and can yield ‘high dividends for a low investment’.Footnote 95 But it also allows Richard Falk to denounce the invasion of Iraq, decry the dilution of the UN General Assembly's influence, and advance proposals for a more egalitarian international order – all in the name of international law.Footnote 96 If Bourdieu's theory of law is well positioned to explain how differently situated actors wielding different forms and amounts of symbolic and material capital manoeuvre in a legal field that both defines and is defined by their behaviour, it is no less well positioned to explain how this field's infrastructure can lend itself to something more than a simple retrenchment of existing relations of domination.
Students of ‘democracy and human rights promotion’ writing from a Bourdieusian perspective have examined the exportation of US legal and economic reforms to Latin America.Footnote 97 They have also looked at the way in which US foreign policy and the agendas of US-centred human rights organizations have been formulated through intense competition between different groups of lawyers, politicians, and powerbrokers – some established, others upwardly mobile.Footnote 98 Still others influenced by Bourdieu have studied the transnational governance instruments produced by the post-1989 wave of legal transplants,Footnote 99 or focused on changes to criminal jurisdiction and the legal definition of terrorism after 11 September 2001.Footnote 100 At a juncture in which the ideology of ‘globalization’ still seems to reign supreme, fed (as much as hampered) by economic crisis and environmental catastrophe, one cannot help but wonder whether the time has come for a new international legal scholarship, one which would marry discourse analysis to political economy in an effort to explain the empowering no less than the limiting dimensions of the international legal form. International Law on the Left offers a raft of insights as to how such scholarship might be fostered. Needless to say, though, its precise content remains to be determined.
5. Concluding unscientific postscript
This brings us full circle. Cioran struggled to accommodate himself to a language that struck him as jarringly frosty but whose relentless pursuit of formal rigour he found captivating. He struggled with it, alongside it, and also against it. Ultimately, though, he threw in his lot with it. And not because he was fatigued, or had simply resigned himself to his fate, but because it was precisely from the difficulties engendered by his engagement with this language that he felt he had the most to gain. The crispness of its form restricted him, true, but it also furnished him with newer avenues of expression.
As an international lawyer with a penchant for something called ‘critique’, one finds oneself in much the same position. While the canon one has in one's hands is nowhere near as coherent, as comprehensively underwritten by jus cogens norms and obligations erga omnes, as the conventional liberal-internationalist schemata make it out to be, it is clearly marked by a powerful ongoing commitment to amplifying its formal reach. One may well not be entirely comfortable with this. But the very fact that one continues to work within the doctrinal and theoretical formations it fosters – indeed, that one tends to extract one's most incisive insights precisely from one's strained association with these formations – is anything but accidental. A ruthlessly extra-legal programme of struggle may be appealing, but the politics it occasions is frequently reckless and self-defeating. To expose law's ‘shams and inequities’, E. P. Thompson famously wrote, is both noble and necessary, but to ‘deny or belittle’ it from head to toe is a ‘desperate error of intellectual abstraction’, an all too quick-and-easy means of ‘disarm[ing] ourselves before power’.Footnote 101 Better far the mute intransigence of a legal form that is lax with its promissory notes but still resilient enough to offer a terrain for concerted struggle than the deus ex machina myth of a ‘purely political’ force that would enter on the scene to destabilize or reconstitute entire legal orders as if by way of some supernatural force majeure. Better far a war of position proceeding from a sober, disenchanted formalism than a war of manoeuvre that would pin its hopes on a pristine act of defiance, refusing to dirty its hands with anything so mundane as law.Footnote 102 Planting oneself firmly in the international legal form need not extinguish the unruly impulses of ‘the political’, leaving one with no choice but to adopt the kind of default liberalism favoured by Roth and to submerge ‘the event of rupture’ that critique enacts in ‘the context in which [it] registers’.Footnote 103 If executed skilfully, it will, in fact, have very much the opposite effect, intensifying and radicalizing the international legal form from within. The only alternative is a condition in which, having cast international law aside on grounds of structural bias, the dominated are left with little more than ‘private’ acts of nonconformityFootnote 104 with which to counter the violence to which they are subjectedFootnote 105 – in other words, with a mirror image of liberalism's own ‘utopia of impotence’.Footnote 106
