ABSTRACT:
What contribution may Marxist theory make to the field of international legal studies? Is it possible to be both a Marxist and an international lawyer? What role does international legal study have in Marxist politics? How should Marxist international law theory be positioned in relation to other critical legal traditions? Is there any theoretical gap in Marxist thought that needs to be filled? What distinguishes a Marxist approach to international law from a New Left approach? In this research work, I propose to investigate these and other related topics by evaluating one of the most important concepts on the subject of international law (i.e., Marxist ideology). In this paper, my goal is to reveal and bring to light its general critical method, some of the less obvious aspects regarding its underlying theoretical project, its disciplinary ambition, and its overall place in the landscape of contemporary international law thought, including how it connects with other pieces of Marxist international law theory.
Key words : Marxist, International Law, Ideology, Scrutiny, Marxist International theory.
INTRODUCTION:
Many philosophers in the modern world have linked current tendencies in international relations to Karl Marx and Friedrich Engels’ beliefs. The approach, popularly known as Marxism, comprises the creation of laws that promote a balance of power between nations while fostering anarchy. The political and economic imbalances that encourage the formation of laws to meet the changes also show the propensity of international laws. Marxism is a materialistic philosophy that has been employed in international law to illustrate the importance of capitalism and communist policies. The notion is especially effective for criticising both economic models by examining their sociological and historical dimensions.
Marxism is a vast religion. Its traditions are as ancient as they are contentious. “Splits, disagreements, and denunciations…” are all too common within it. It’s no surprise that many of its precepts have been fatally misconstrued by both Marxist and non-Marxist scholars, who have
associated Marxist thinking with crass reductionism, simplistic economic determinism, and a certain complicity in authoritarian and dictatorial control. Ironically, Marx himself was violently opposed to being labelled a “Marxist.” It is also difficult to write about a Marxist legal approach because Marx and Engels did not propose an integrated theory of the state or the law, let alone international law.
According to Marxists, international law is essentially an attempt by states throughout the world to create a balance of power based on their respective production powers. One of the most intriguing elements of Marxism is that it views society as a whole, and the tensions within society are accountable for the changes in international law that individuals observe. This indicates that, from a Marxist standpoint, international law is an attempt by the international community to adapt to the world’s contradictions. This article investigates Marxism and international law, with a particular emphasis on the four Marxist discourses of imperialism, reliance, hegemony, and empire. Marxism is at the heart of international law.
RESEARCH METHODOLOGY :
This paper is of a descriptive nature and is archival research. The research consists mainly of searching for and extracting information from past records. In this paper, research is conducted on the old records of the Marxist concept, thereby extracting the particular piece of work and taking a judicial scrutiny over the chosen topic.For the research, secondary sources of information, including websites, are tapped.
REVIEW OF LITERATURE:
The 2008 financial crisis has seen a resurgence in Marxist approaches to international law, which began with the 2003 Iraq War. This war triggered a wave of theorising about “empire” and “imperialism”, which invited a reexamination of the Marxist tradition. Marxist approaches are committed to grounding the law in its wider material context and understanding the ways in which political-economic relationships shape and are manifested within (international) law. This paper aims to map out some of the most important Marxist scholarship in international law, beginning with a general account of “classical Marxist” theory and detailing some of the different theoretical
approaches that have been drawn from the Marxist tradition. It also looks at how Marxists have engaged with specific areas of international law.
1. MARXISM AND INTERNATIONAL LAW : WHERE TO START?
Any international lawyer who encounters Marxist philosophy for the first time is going to feel disoriented. There is so much to read about Karl Marx, Vladimir Lenin, Leon Trotsky, Rosa Luxemburg, and Ellen Meiksins Wood. Where does one even begin? Marxism, like every other tradition, comes in a variety of shapes and colours. There are several rifts, splits, and schisms to be found within the realm of Marxist disputes. The supporters of ‘young Marx’ are vehemently opposed to ‘Leninist’ Marxism. ‘Orthodox’ Marxists disagree with ‘post-modern’ Marxists. Trotskyists oppose the Stalinists. The Maoists are pitted against the Eurocommunists. The ‘New Left’ Marxists criticise the “structuralist” Marxists; the Robert Brenner school attacks the ‘neo-Smithian’ camp; Nicos Poulantzas supporters clash with Ralph Miliband supporters; the ‘analytical’ Marxists criticise the Hegelo-Marxian legacy; and so on. Forget about determining which version of Marxism is ‘right’ and which is more loyal to Marx’s original message. Choosing which of these debates to pay attention to can feel like an entire research project in and of itself.
Fortunately, Marxism is not only a very rich and diverse tradition, but it is also a tradition whose theoretical interests have come to cover many different disciplines and subject areas over the years, with the inevitable result that in order to familiarise oneself with the current state of Marxist debates in any given field, one does not need to go back to any ‘common tradition’ or original ‘core’ writings. The fundamental theoretical problems that shape the Marxist research agenda in subjects such as development economics today have essentially nothing in common with the research questions that drive the path of Marxist debates in fields such as comparative literature or the history of performing arts.
Needless to say, this increasing intellectual fragmentation has a substantial political cost. As each new subject area develops its own, field-specific version of the Marxist tradition, the respective community of scholars will inevitably begin to accumulate an ever-greater degree of expertise in the narrowly ‘local’ body of Marxist study, to the detriment of being able to follow or influence the course of Marxist debates taking place elsewhere. Typically, the result is a growing pattern of
alienation not only from other ‘local’ Marxist traditions forming in the nearby disciplines but also from the broader heritage of ‘Marxist theory in general’. Every cloud, on the other hand, has a silver lining. Despite its drawbacks, the growth of field-specific Marxism has one indisputable advantage: it makes the process of becoming acquainted with the relevant body of literature much less difficult and demanding. Mastering the entirety of modern Marxist literature may seem like an impractical endeavour.
However, if you particularly want to learn Marxist theory of international law, your initial aim will be much more realistic and attainable. In fact, there are just three book-length books available today that can fairly be considered basic or indispensable reading for comprehending the condition of contemporary Marxist scholarship in international law. Susan Marks’ The Riddle of All Constitutions1, is the first; China Mieville’s Between Equal Rights2 is the second; and ILWO is the third.
Each of these novels, inevitably, has its own set of virtues and drawbacks. The Riddle of All Constitutions is a particularly good exposition of the classical Marxist project of ideology critique as applied in a traditional international law framework. But, as Marks herself admits, Marxism is more than ‘simply’ a theory of ideology; there are many more sides and dimensions to the Marxist ‘legacy’ than the concept of ideology critique can address. Between Equal Rights is a brilliantly written essay that is logical, polemical, and unwavering in its resolve to rehabilitate the thought of an early Soviet jurist, Evgeny Pashukanis, the inventaddress. e so-called commodity-form theory (CFT). However, Mieville’s reasoning often works best if you merely want to make sense of international law quickly and without actually studying it, and the portrayal it offers of the contemporary international legal system is incomplete and simplistic. ILWO’s major drawback to date has been that it has been out of print for the better part of the last two decades.
2. MARXISM AS PERSPECTIVE AND CRITIQUE :
The usage of ‘perspective’ rather than “method” is deliberate. Marxist thought rarely adheres to the idea of a single approach to law. For the most part, Marx and the greater Marxist tradition are
1 Susan Ruth Marks, The riddle of all constitutions: A study of democratic ideas in international law (1997).
2 C. Mieville, Between Equal Rights: A Marxist Theory of International Law (2005)
theories about the totality of social forms and interpersonal connections rather than a specific collection of legal ideas. To view the universe and society from a Marxist perspective is to see them as an infinite collection of interrelationships where one phenomenon is constantly connected to the other. This implies that ideas, institutions, and human action must be regarded as components of an “integrated whole” that is both dynamic and reliant on history and prior structures.3
As Marx insightfully stated, “men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.”4 So, how we look at the law will be determined by how we think about the deciding components of social connections in general. This is the point at which one’s intellectual framework, or theory about the universe, collapses into the restricted issue of procedure. Furthermore, ‘Marxism’ evolves as it registers criticism, new ways of thinking, and a continual push against its own traditions. Limiting Marxist theory to a set of ideas or institutional constraints is not only incorrect, but also highly depoliticizing. In this sense, ‘perspectives’ is meant to maintain that area open so that it can be examined and challenged on a regular basis.
In broad terms, Marxist criticism is a structural critique aimed not at individual instances of exploitation or oppression but at the material structures of society at a systemic level, which make such exploitation part of the ordinary and commonplace. It is also an ‘internal’ critique of the system, exposing the system’s underlying contradictions. The law is then to be understood as a social practise with its own internal formal logic and a set of argumentation structures that provide stability for dominant interests and power. It challenges us to consider law and international law as part of a larger social and economic infrastructure in which they are entrenched rather than as a fragmented, insular, and isolated set of rules.
Finally, Marxism is a call for radical political action to overturn existing political economy arrangements, not just a set of theoretical excursions5. It is, by definition, an emancipatory ‘praxis,’
3 Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (OUP 2016) 84
4 A. Giles‐Peters, Objectless activity: Marx’s ‘theses on Feuerbach,’ 28 Inquiry 75–86 (1985)
5 ( As Marx had famously remarked, “philosophers have only interpreted the world, in various ways; the point, however, is to change it”. Karl Marx, ‘Theses on Feuerbach’ (1845). ) A. Giles‐Peters, Objectless activity: Marx’s ‘theses on Feuerbach,’ 28 Inquiry 75–86 (1985).
with the goal of “creating space for interpretive rules and strategies that contribute to the welfare of the subaltern classes.” As a result, Marxism does not create a clear distinction between ‘theory’ and “practise,’ understanding that one is inextricably linked to the other.
3. MARXIST INTERNATIONAL LEGAL THEORY :
- The Commodity- form theory :
Evgeny Pashukanis was a Bolshevik jurist who came to prominence following the Russian Revolution. He was the main Soviet legal theorist in the 1920s and 1930s, but his work fell out of favour with the Stalin regime, and he was executed in 1937. Pashukanis argued that law had to look at what differentiated it from other social forms, not just its function in regulating social life. He argued that international law was the oldest form of law, as commodity exchange initially took place among communities. Capitalism saw the extension and blossoming of commodity exchange internationally, and the independent sovereign state was a product of the development of capitalism. Pashukanis argued that international law is the legal form of the struggle of capitalist states for dominance over the rest of the world. China Miéville’s 2005 book Between Equal Rights6 argues that Pashukanis’ commodity-form theory is able to illuminate some of the central problems of international legal theory, such as whether international law is “really” law. Miéville argues that Pashukanis failed to properly account for the violence at the heart of the commodity form, which carries over into the legal form, and that international law is indeterminate as it is composed of independent, sovereign states that can only be voluntarily bound. He also questions how arguments are resolved given their indeterminacy. Miéville argues that international law and imperialism are fundamentally connected with the spread of international capitalism, and only the violence of imperialism can resolve legal arguments.
B. Ideology Critique :
Ideology is an important tool used by Marxists to understand the law. It was particularly important during the “revival” of Marxist legal theory in the 1970s, when it was seen as a “smokescreen” to cover up the “real” processes at work in the world. Susan Marks argues that ideology serves to establish and sustain relations of domination with key
6 C Miéville, Between Equal Rights: A Marxist heory of International Law (Brill Leiden 2005) at 126
moves such as legitimation, dissimulation, unity, reproduction, and naturalisation. These manoeuvres are not taken as neutral descriptions of beliefs or worldviews but rather as manifold ways in which meaning might serve to establish and sustain relations of domination. Marks argues that international law helps stabilise the uneven development of global capitalism by setting up criteria through which democracy can be monitored by international organisations. He argues that international law engages in naturalisation by proclaiming low-intensity democracy as the only form of democracy, uniting political rights from broader issues, and detaching political rights from broader issues. International criminal law abstracts individuals’ actions from broader social relations, emphasising the abnormality of conjunctural violence rather than the normality of the forces that lurk beneath. Marks argues that human rights law tends to eschew broader inquiries into systemic causation, leading to a depoliticizing focus on human rights.
4. ‘FIVE’ MARXIST PERSPECTIVES ON INTERNATIONAL LAW :
Marxist approaches to law and international law have largely remained on the margins of the discipline, but in the last decades, they have seen a “revival” due to the rise of contemporary crises such as the ‘War on Terror’, rising inequality, the financial crisis, climate change, racial injustice, violence against women and indigenous communities, and the rise of authoritarian populism. Marxist concepts such as ‘class’, ‘ideology’, ‘economic base’, and ‘commodification’ have the potential to explain the systemic forces at work that naturalise the historical legacies of this unequal and violent order of things.
1. INTERNATIONAL LAW AS A MATERIAL PHENOMENON :
Marxist theory argues that all social relations need to be understood in their ‘historical-material’ context. This means that law is a reflection of the larger economic processes within society and that the relationship between law and the economic structure is highly contingent, co-constitutive, and even contradictory. Imperialism and colonial expansion are material phenomena, at the heart of which lies the need for capital to constantly expand “over the whole surface of the globe”. Imperialism is the political expression of the accumulation of capital, which works to efface all traditional forms of economic and social life. The distinction between ‘civilised’ and ‘uncivilised’ in 19th-century European
international law was rooted in the logic of capitalism.7 The realisation of “statehood” under international law became synonymous with violent capitalist transformation. The post-WWII international legal order marked the beginning of ‘imperialism without colonies’, tying the third world to the economic dependence of former colonial powers. The IMF and World Bank promote monetary stability, free capital mobility, disciplined finance, and a shrinking of the public sector. Accumulation by dispossession is a primitive accumulation in the neo-liberal age, aided by the privatisation and commodification of natural resources. Modern international investment law, especially bilateral investment treaties (BIT), entrenches the power of foreign capital, while the World Trade Organisation prescribes harmonised rules. Marxist accounts of the field have ground these ideas about international law within a historically specific and materially influenced conception of evolution, where it is indistinguishable from violence, expropriation, and capitalist expansion.8
2. INTERNATIONAL LAW AS A CLASS PROJECT :
Class is the organising principle of society in the Marxist tradition. Marx argued that all aspects of social relationships, including those that make up the economic base, are constantly evolving through the struggle between different groups within society. This struggle is often expressed through the law, which shapes the form and content of the struggle itself. With the consolidation of the neo-colonial project in the 1970s and the accelerating trend towards hyper-globalisation, class formations acquired a different dimension. Rasulov and Chimni argued for a class approach that visibly highlights the role and significance of different social groups and classes, which materially influence and shape the formation of international law. International law has become a site of class struggle between the TCC and TOC, promoting both class consciousness and constitutive structure. This is most visible in the struggle for the environment, biodiversity, and development-related displacement. A class approach to international law helps navigate
7 Karl Marx, Capital: A Critique of Political Economy, vol 1, ‘Chapter Twenty-Six: The Secret of Primitive Accumulation’ (1867).
8 Karl Marx, Ernest Mandel & David Fernbach, Capital: A critique of political economy. (1978), vol 1, ‘Chapter Thirty-One: Genesis of the Industrial Capitalist’ (1867).
through the black box of the state and international institutions and foregrounds resistance by TOC to capitalist accumulation.9
3. INTERNATIONAL LAW, IDEOLOGY AND THE CRITIQUE OF UNIVERSALITY :
International law is seen as an “ideological form” that domesticates resistance and class conflict by depoliticizing legal relationships and rationalising conceptual categories. Ideology plays a key role in legitimising exploitation, while hegemony is the process through which the “consent’ of the dominated classes is created and sustained. This critique provides a useful lens for the work of international law, especially in the context of deeply political conflicts. Sundhya Pahuja has shown that notions of ‘development,” when prescribed in universalistic terms, carry with them the prescription for particular kinds of economic and political arrangements. Mohammad Shahabuddin has argued that international law’s facilitation of the ‘developmental state’ suppresses minority and refugee rights. International law and international institutions are not only products of the hegemonic order but also crucial means to absorb and redeploy counter-hegemonic ideas. International law focuses on the domestic roots of poverty and conflict, detracting attention from systemic patterns of capitalist exploitation and violence. It also sidesteps questions of entrenched social hierarchy and inter-group domination while privileging a narrow set of indicators and benchmarks to assess electoral and other forms of participation.10
4. INTERNATIONAL LAW AS COMMODITY FORM :
Marxist theorist Evgeny Pashukanis argued that in a capitalist society, relations between individuals based on property rights are homologous to abstract commodities that are traded. He characterised international law as the legal form of the struggle of the capitalist states among themselves for dominance over the rest of the world. China Miéville extended Pashukanis’ commodity theory to argue that the legal form inherent in international law is that certain claims trump others. The commodity form theory of Pashukanis has been influential in Marxist international legal scholarship, as it provides a historical account of why and how law developed and what makes legal relations the
9 Ibid, 7 and 8
10 Ibid, 7 and 8
perfect infrastructure for capitalism’s expansion. It illustrates how international law has a structural relationship to capitalist accumulation through the commodification of social relationships but also sustains imperial relations of domination. This unequal coercion is what imbues “content into the legal form” and makes legal relations the perfect infrastructure for capitalism’s expansion.11
5. INTERNATIONAL LAW AS EMANCIPATION :
China Miéville’s conclusion that international law is necessary for emancipation left an enduring mark on Marxist international legal scholarship. Hegemonic quarters within the discipline began to associate the project of Marxism in international law with legal nihilism, while Marxist scholars saw a fundamental incompatibility between Marxism and the support for human rights. For Marx, legal struggles and the pursuit of human rights were not repudiated but rather provided the oppressed classes with the means to push back against capitalist expansion. Law and the legal form in the Marxist tradition have a dual character, providing an important form of social emancipation through concrete legal struggles. Rob Knox suggests that international law should be pursued for progressive purposes, not because it is ”law,” but because it aids a larger political commitment to fundamentally transform existing society. This would eventually lead to the planned obsolescence of international law, but the task of radical critique and practise through international law must continue.12
CONCLUSION : SO WHAT? (IS TO BE DONE)?
Marx’s famous quote on Feuerbach expresses an important truth: that the point is to change the world. This chapter discusses the debates surrounding the role of law in emancipatory social change, with two camps: the ‘opportunists’ and the ‘denialists’. Marks argues that ideology critique is a virtue of ideology critique, and Chimni holds that contemporary international law provides a protective shield to the less powerful states in the international system. Miéville has argued that replacing war and inequality with law is self-defeating, and his argument has met with a robust response from many of the authors referred to in this chapter. Miéville’s argument is for the
11 Ibid, 7 and 8
12 C. Mieville, Between Equal Rights: A Marxist Theory of International Law (2005)
structural connection between international law and imperialism, but this does not necessarily have immediate consequences for day-to-day practise.
The debate about reform or revolution needs to be structured around the concepts of strategy and tactics. Marxists believe that the problems of the world are undergirded by wider and deeper systems of social relations with their own logics. To resolve these problems, it is necessary to fundamentally transform our social order and engage in smaller, more defensive acts. In order to truly answer these questions, there needs to be a deeper jurisprudential theory about the structural relationship between law and capitalism and law and imperialism. Pashukanis and Miéville attempt to do this, but there is little systematic reflection on these issues. Without this, the question of the relationship between law and social change on a broader level remains unanswered.
NAME : C. LITHIVARSHINI
COLLEGE : GOVERNMENT LAW COLLEGE, SALEM affliated to TAMIL NADU DR. AMBEDKAR LAW UNIVERSITY