Monday, January 01, 2018

Toward a Marxist Theory of International Law


Last week at the blog of the European Journal of International Law, EJIL: Talk!, there was—for yours truly at any rate—an intriguing and inspiring roundtable on the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches (Cambridge University Press, 2nd ed., 2017). Below I’ve provided brief excerpts from the posts of the four contributors (I’ve not included my comments to a couple of the posts), although one should read Professor Chimni’s concluding response in full as well by way of a taste of the book and its overarching argument, which might be called, “Toward an Integrated Marxist Approach to International Law.”

Duly inspired and motivated by the roundtable, and having read a bit in the relevant literature (which means I’m far from a mastery of same), I decided to put together a bibliography related to Chimni’s work as well as the theoretical and practical Marxist and scholarly legal orientation (as far as I could ascertain) of the contributors to the roundtable: Umut Özsu, Robert Knox, Akbar Rasulov, and Konstantina Tzouvala. This latest compilation, “Toward a Marxist Theory of International Law: an introductory bibliography,” has garnered a comparatively fair amount of attention for something posted during the holiday season: since posting several days ago, I’ve received 141 views from the following countries: Portugal, Spain, Jordan, Canada, the United Kingdom, Colombia, Austria, Serbia, Israel, Italy, Germany, Poland, Sweden, India, Slovenia, Australia, France, Albania, South Africa, Argentina, Lebanon, the Republic of Korea, Finland, Greece, the United States, Romania, Ukraine, Hong Kong, the Netherlands, and Malaysia. [It’s also posted at ResearchGate, but I’ve not checked the statistics there.]

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“The first edition of B. S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches appeared in 1993, only a couple of years after the Soviet Union’s collapse and at a time when critical and feminist approaches to international law had only just begun to make their presence felt. This was a period when only a small handful of prominent international legal theorists self-identified as Marxists—and when few jurists from the “Third World” aside from Georges Abi-Saab and Mohammed Bedjaoui were read consistently in the West. Published in New Delhi and armed with a preface from Richard Falk, International Law and World Order was no ordinary contribution to international legal scholarship. Chimni’s aim was nothing less than the reconstruction of international legal theory, a project he undertook by way of sustained examination of a number of competing perspectives, from that of Hans Morgenthau to that of Grigory Tunkin.

The second edition offers the most detailed and systematic analysis of international law from a Marxist standpoint that is currently available. Enormously ambitious in scale and reach, it updates, revises, and enlarges the first edition, sweeping across a range of substantive topics and discussing a variety of different approaches to international law and international legal theory. While the first edition had its roots in Chimni’s early engagement with the ‘New Haven School’ (hence the title of the book, which alludes to both Falk’s work and the ‘world public order’ models espoused by Myres McDougal, Harold Lasswell, and Michael Reisman), the second edition deals at length with feminist international legal scholarship and the work of David Kennedy and Martti Koskenniemi as part of a broader effort to outline a new Marxist theory of international law, one that integrates insights from socialist feminism and postcolonial studies while absorbing the lessons of the indeterminacy debates of the 1970s, 1980s, and 1990s.

Given the breadth of this new edition, there are a number of different means of assessing Chimni’s ‘integrated Marxist approach to international law’ [IMAIL]. Arguably the most useful is by attending to Chimni’s discussion of classic debates about the relationship between what some Marxists (and enemies of Marxism) have characterized as the economic ‘base’ and ideological ‘superstructure.’ Rejecting all interpretations of the ‘base’/’superstructure’ relation premised upon the notion that the economic is strictly determinative of all social relations, Chimni argues that Marx and Engels subscribed to a more nuanced view of economic and extra-economic dynamics, pointing in particular to a key passage in an 1890 letter by Engels. In that letter, which has long been regarded as a key piece of evidence that Marxism need not entail crude economic determinism, Engels writes as follows:

‘According to the materialist conception of history, the ultimately determining element in history is the production and reproduction of real life. Other than this neither Marx nor I have ever asserted. Hence if somebody twists this into saying that the economic element is the only determining one, he transforms that proposition into a meaningless, abstract, senseless phrase.’

Chimni refers explicitly to this passage (alongside a number of others from Marx and Engels) at a key juncture in the book, using it to make a number of points, the most fundamental of which is that ‘law is not simply a reflection of the economic structure of society but is also in many instances constitutive of relations of production’ (p. 450). Rather than adhering to a stark, hard-and-fast distinction between the economic ‘base’ and ideological ‘superstructure,’ with the latter functioning purely as a means of mystifying and legitimating the former, Chimni (like others) argues that law is endowed with significant constitutive power, inhering within and contributing directly to the contradictions and transformations of the economic relations that comprise the core of the capitalist mode of production.

It is on the basis of this appreciation of the constitutive power of law that Chimni develops his ‘integrated Marxist approach to international law’ [IMAIL]. Chimni claims that Marx and Engels, committed though they unquestionably were to the view that legal rights are insufficient to secure full human emancipation, recognized the value of legal reform initiatives, particularly for improving the conditions of the working class. While certainly not uncontroversial, this is an interpretation that finds significant support in classical Marxist texts, especially Marx’s famous discussion of the struggle around factory legislation in nineteenth-century Britain in chapter 10 of the first volume of Capital. It is also a view that has been shared, albeit in different ways and to different degrees, by a host of key Marxist thinkers, from Karl Renner, who attempted to demonstrate that legal forms do not always track socio-economic relations, through E. P. Thompson, who wrote hyperbolically of the ‘rule of law’ as an ‘unqualified human good’ to Nicos Poulantzas, who theorized the state as the material ‘condensate’ of ongoing struggles between different classes and class fractions. Chimni relies extensively upon these and other thinkers, arguing that Marx and Engels did not press their critique of formal equality in order to repudiate law, but simply in order to demonstrate the limits of an exclusively rights-based strategy of effecting social change, which could not help but remain within the juridico-political framework of capitalism. [emphasis added]

It is not hard to see how this stance would yield a more generous conception of international law than the kind that is typically found in many other critical (and Marxist) theories.”—Umut Özsu

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“B.S. Chimni’s work sits at an important intersection of international legal theory. It is most readily identifiable as falling within the Third World Approaches to International Law (TWAIL) movement: adopting the perspective of the Global South, and foregrounding the role of imperialism. Simultaneously, with its focus on class, production and global capitalism, his work is explicitly Marxist. This combination harkens back to an older Marxist Third Worldism—exemplified by Frantz Fanon, Amílcar Cabral and Walter Rodney.

For Chimni, his position is not exceptional. He goes so far to say that his “integrated Marxist approach” to international law, is TWAIL [Third World Approaches to International Law]. Whilst this is true to a degree—TWAIL is a broad church—it underplays the degree to which Chimni’s Marxism is distinctive within TWAIL.”—Robert Knox

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“In 1993, Professor B.S. Chimni published what Richard Falk described as the ‘persuasive rehabilitation of Marxist thought as the foundation for a progressive theory of international law.’ Almost twenty-five years later, the second edition of International Law and World Order: A Critique of Contemporary Approaches offers us valuable insights not only into the evolution of Chimni’s thought, but also into the evolution of the discipline. Indeed, the structure and the sheer size of the second edition is telling of the flourishing state of heterodox approaches to international law. It is no coincidence that Chimni felt the need to add two new, lengthy chapters on the New Approaches to International Law (NAIL), which he sees as exemplified in the writings of David Kennedy and Martti Koskenniemi, and on Feminist Approaches to International Law (FtAIL), where he focuses primarily on the work of Christine Chinkin and Hilary Charlesworth, and particularly their co-authored, ground-breaking book, The Boundaries of International Law: A Feminist Analysis. Perhaps more fundamentally, when articulating his own Integrated Marxist Approach to International Law (IMAIL), the author gestures toward the need to integrate class, gender and race for a critical project in international law. In this respect, the book at hand does not simply offer an overview of the field, but it also registers and responds to relevant discussions (see here and here) about race, gender and class that are taking place in leftist movements and parties around the world. This is a refreshing development in its own right, since for the best part of the last twenty years references to civil society in international law revolved around Western(ised) and professionalised NGOs (see here and here).

The book at hand is rich and stimulating, not least because of Chimni’s choice to structure it around a diverse range of theories: from classical realism to the transformations of Koskenniemi’s thought and from the writings of Richard Falk to Gadamer’s theory on interpretation.”—Konstantina Tzouvala

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“By explicit declaration as well as numerous “practical” illustrations, International Law and World Order: A Critique of Contemporary Approaches (ILWO) proves over and over again that far from having nothing more to say about international law other than that it is a cynical cover-up for imperialistic violence, the Marxist tradition can, in fact, make a very complex, nuanced, and rich contribution to the discipline of international legal studies, that it can teach us something valuable not only as moral agents or as ideological actors but also as international lawyers and legal scholars. And the significance of this cannot be underestimated.”—Akbar Rasulov

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For those wanting to further explore a Marxist approach to law in general and international law in particular, please see the Legal Form blog (‘a forum for Marxist analysis of law’), which has an excellent online “collection of documents contain[ing] texts that (a) are widely recognized as ‘canonical’ within the Marxist tradition, (b) grapple with legal questions from a standpoint informed by Marxist methods, (c) scrutinize a specifically Marxist approach to law in the context of a particular debate, and/or (d) examine the historical conditions under which a given account of Marxism and law was initially discussed.”

Some readers may also be interested in the London-based Haldane Society of Socialist Lawyers. 

Image: El Lissitzky, Troublemaker (1923)

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