Historical Materialism and International Law - University of Sussex

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DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION and other emerging bourgeois professions with that of international lawyers, their institutions and ideas. However, this claim brushes over fundamental differences. After Westphalia and up to the 19th century, continental ‘IL’ (or the Droit Public de l’Europe) consisted mainly of diplomacy and burgeoning foreign policy. This order was conducted by aristocrats and the military in defence of dynastic interests and of a European ‘public’ identity that crystallised the private family interests of European monarchs against a rising bourgeois (and revolutionary) class (Teschke, 2003; Keene, 2009; Belissa, 1998). This was an important struggle, which marked the initial development of public IL and diplomacy as separate and antagonistic strategies to the rise of capitalism. What is more, the differences between continental and British conceptions of legal theory, IL and diplomacy are significant (e.g. Sugarman, 1986; Grewe, 2000; Kelly, 1992). Certain French colonies, particularly in the Caribbean, were also used by the monarchy as a way of maintaining this particular ‘public/private’ order, while the ambiguity and clash between conceptions of European legality and political ideas were particularly laid bare in the confusion of colonial rule (Knafla & Binnie, 1995; Benton, 2010; Johnston, 1973) 22 . These legal strategies of expansion contest the homogeneous and determinist interpretation of the period of the 17th and 18th centuries. Although it is not possible to go into more detail here, it should be noted that Pashukanis’s analogy omits important conceptual, geopolitical and class divergences in the development of domestic public law and public IL. The construction of modern international legal forms cannot be reduced to the generalisation of the bourgeois state form, based on commodity exchange and a reified notion of private property. Or, in the least, we must accept that this theory a priori excludes jurisdictional struggles and the potential of legal agency. Political Marxism and IL: a Theory of Jurisdiction? Foundations Political Marxism is rooted in Robert Brenner’s (1976, 1977) historical work on early modern Europe and on the transition from feudalism to capitalism. His argument, later extended by Wood (1981, 1995) and Comninel (1987, 2000), asserted that capitalism originated in England as a result of specific social conflicts in the agrarian economy. This work is grounded in analyses of property relations to assess the relationship between classes, institutions and power. It suggests that history, past and present, is nothing but the social, i.e. political, juridical and economic conditions, in which all phenomena are grounded and contested. Political Marxism’s first aim is to detach itself from mid to late 20th century economistic Marxism, moving away from deterministic and structuralist orthodox assumptions. It does so by focusing on the regionally specific resolutions of social conflicts that follow 22 This struggle between different conceptions of legality also helps to explain the different reactions and roles of lawyers in the English and French revolutions (see Burrage, 2006 for an account of these differences). 12
DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION no pre-determined script. It also re-asserts the crucial role of politics as social power struggles in the overall development and trajectories of social property relations, with a specific focus on explaining and drawing out the wider implications of the separation of the political and economic spheres under capitalism. It thereby re-asserts the role of the political as a firm basis to the economic sphere, and hence, to the mode of production. The important problem this raises is the controversial relationship between base and superstructure, to which Wood replies in the following way: “Political Marxism, then, does not present the relations between base and superstructure as an opposition, a regional separation, between a basic ‘objective’ economic structure, on the one hand, and social, juridical and political forms, on the other hand, but rather as a continuous structure of social relations and forms with varying degrees of distance from the immediate processes of production and appropriation, beginning with those relations and forms that constitute the system of production itself. The connections between ‘base’ and ‘superstructure’ can then be traced without great conceptual leaps because they do not represent two essentially different and discontinuous orders of reality.” (1995: 25-26) The particularity of this approach is its non-economistic and politicised aspect. A first advantage for this discussion is the emphasis on social contestation, since it translates empirically into spatiotemporally open forms and content of legal activity. In contrast to more ‘classical’ Marxists, Political Marxism adopts a non-functionalist conception of the interpenetration of social relations between spheres of production and circulation (i.e. capitalism not as an economic but a social relation that is politically constituted). If the juridical is part of this ‘continuous structure’ Wood identifies, this means that it is not approached as an expression of the commodity form, but rather as a terrain of social conflict. In effect, the modern states system, as juridically equal but politically unequal, was only possible after the expansion of capitalist relations of production, since only these provided the impetus for the distinction between public sovereignty and private civil society (Rosenberg, 1994). This process is hence sufficiently identifiable only from the 19th century. The transition to capitalism was not a homogeneous and natural progression from the system of sovereign states supposed to rise out of the Peace of Westphalia (Teschke, 2003). Instead, agrarian capitalism in England and continental absolutisms in France and the Holy Roman Empire both separately emerged out of feudalism, and through a complex process of contested refraction and/or uneven and combined development confirmed the forms through which capital accumulation justified itself politically, i.e. the separation between the sovereign nation-state and transnational capital flows. If the legal dimension is theoretically implicit in Political Marxism, there also is a presumed tension between the fixed aspects of the law, such as the legal form or property right, and the process or interaction involved in legal content or the property relation. Instead, Political Marxism needs to 13
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