Historical Materialism and International Law - University of Sussex

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DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION alternative Marxist theory of IL rejects the primacy of commodity exchange, can legal argument address systemic or structural causes? We return here to the problem highlighted in the introduction, namely the relationship between structure and agency, and how historical materialism has failed to resolve the tensions it creates. Historically disagreeing with the ‘international legal form-commodity exchange’ equation is relatively facile; the difficult challenge is how such disagreement translates theoretically. This brings us to try and deepen the critique of Miéville’s historiographical method, and to later propose a focus on jurisdiction as a way to account for both structural and agential legal processes. Focusing on States’ ‘Shared Characteristics’ In terms of methodology, Miéville pre-empts the distinction between historical and theoretical critique as an object of contention. In his view, the (historical) transition debate 18 is only relevant to the political content of legal forms, since the legal form predates capitalism. Moreover, the universalisation of the legal form occurs at the (theoretical) level of the value form, i.e. circulation not production (2005: 201). However, this only holds if one accepts the primacy of form analysis and more generally the analysis of political economy from the premise of categories as forms of social relations 19 . This primacy is also challenged by an approach that questions a strict separation between theory and history. This section argues that form analysis can be more fundamentally criticised from the standpoint of historical dialectics (Heine & Teschke, 1996) and the ‘philosophy of internal relations’ (Ollman, 2003). By contesting the theorisation of private property and commodity exchange as homogeneous and founding abstractions, the debate on the role of mercantilism as transitional becomes essential at both levels of form and content (i.e. theoretically and historically). If so, Miéville’s theory can be challenged historically. In effect, it excludes a priori the possibility of colonial and mercantile practices that universalised feudal or absolutist (i.e. non-capitalist) configurations of state power and property relations. The critique is thus twofold: theoretically, commodity form theory does not allow for the possibility of historical specificity, and historically, this condition is confounded by a revisionist history that emphasises the heterogeneity of state formation and jurisdictional practices. Since he sees these practices to be irrelevant to the commodity form theory, Miéville’s defence is 18 For a collection of the protagonists and arguments in the transition from feudalism to capitalism debate, see Aston & Philpin (1985). 19 For example, Binns criticizes Pashukanis as follows: “the real power of his analysis is in abstraction, in locating the source of what he refers to as the ‘legal form’. But he never brings his theory back down to earth again, and this lack of concreteness prevents him understanding the role of law as capitalism itself develops and changes. He leaves us with a view of law under capitalism as an unchanging category instead of as an evolving process.” (Binns, 1980: 100). Similarly, form analysis has been criticised for assuming, a priori, public law and criminal law to be secondary manifestations of private and contractual law (Fryer et al. 1981). Even Fine (2002) struggles to follow the primacy of form analysis through to Miéville’s conclusions. Although he starts his critique of juridic relations from commodity relations, he argues the state form appears only after the emergence of capitalist relations of production. 10
DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION to focus on states’ ‘external similarities’ or ‘shared characteristics’ 20 . He compares the historical work of Teschke (2003) and Grewe (2000) by noting that Teschke assesses the specificities of European states, whereas Grewe looks at their similarities. This raises an important problem: should the history of IL focus on the internal or external dynamics of states, and to what extent can one identify this ‘inside and outside’, a fortiori during the early modern period? By focusing on states’ external dynamics or shared characteristics, Miéville is led to apply anachronistically abstract conditions of the capitalist legal form of the state to heterogeneously constituted societies, i.e. geopolitical spaces in which capitalism was absent 21 . Generally, an analysis based on external similarities particularly obscures the jurisdictional struggles that shape the essential dominance of a class or institution over the juridico-political domain. The point is to question the social struggles actually constructing the ‘shared characteristics’ Miéville uses as analytical basis. Focusing on states’ external similarities assumes the success or unimportance of these jurisdictional struggles, and takes their agency for granted. For example, this can be shown by the case of 17th and 18th century France. The kingdom still functioned administratively and judicially according to feudal and patrimonial rights, especially in the provinces (Beik, 2005; Miller, 2008). The question is: what was the international legal form or content for Louis XVI other than the personal extension of his sovereignty? In other words, how should one understand ‘external similarities’ when faced with personal sovereignty? Miéville does not make clear in his analysis why the legal form as commodity form justifies and/or produces coercion rather than the feudal remnants of ‘unspatially’ fixed sovereign rights, expressed through the machinery of the state. Thus, the theoretical move of extending the legal form that inheres between individual owners of commodities to the state form clashes with a conception of IL characterized by the interconnection of political processes. This move is based on Pashukanis’s analogy between on the one hand individuals as owners of commodities and on the other the bourgeois state form. This section ends by questioning the use of this analogy. The Individual-State Analogy Pashukanis (2005) equates the rise of institutions such as administration, bureaucracy, trade 20 “for the historian of international law, the focus on these states’ internal dynamics to point out their differences leaves relatively unexplored their external dynamics, in which certain shared characteristics between absolutist and non absolutist states are visible. From this perspective, though care must be exercised, it is possible to make generalisations about the various state forms ranging from the ‘high’ absolutism of the French model even to the English non-absolutist model… There were of course unique political forms in each country. But one risks obscuring as much as illuminating in focusing so carefully on the specifics of a state form internally that the shared changes in European states in general goes unnoticed.” (2005: 202-3; my emphasis) 21 In the 17th century, the various political actors of the Holy Roman Empire and even of Spain and France were struggling to define the conceptual and geographical frontiers of their sovereignty (e.g. Teschke, 2003; Lacher, 2006; Lapointe, 2009; from a different theoretical perspective, see Bartelson, 1995). See chapters 3 and 4 of thesis. 11
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