Historical Materialism and International Law - University of Sussex

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DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION challenge the idea of law as an expression or form of social relations, and approach it from the standpoint of social process. Thereby, this tension between property right (form) and property relation (content) becomes merely apparent. The following challenge is to explain why an appearance of things takes over the meaning or life of things; in other words, why a particular right prevails over others in the struggles over content, and thereafter retains that prevailing position of legitimacy beyond the initial struggle that produced it. This is an essential function of modern law, to institutionally preserve the fruits of a social struggle without the burden of winning the struggle anew. However, recognizing this formal function does not justify or automatically lead to negating the continuing social struggles that challenge the formalisation of a right. In other words, if content does not stop in the face of the form, and if the goal is to map out the various challenges to the building of the capitalist state and sovereign states system (so as to understand why it prevailed over other forms and how future challenges might be able to contest it anew), a theory of jurisdiction must give up on the primacy of commodity exchange and the analogy between the bourgeois individual and state. It must start instead with historical specificity and the assumption that the international legal form, i.e. the capitalist state, has to be taken for what it is, i.e. merely the institutional appearance of the legitimacy of dominant class interests. Historical materialism needs to start from the ‘real’ relations between human beings and things, not their appearances. Crucially, these relations cannot be attributed to states on the basis that through modernity, states become abstract institutions in the same way as individuals become abstract bearers of rights. In sum, relations between individuals must remain the primary basis of analysis for international legal relations. Less abstractly, we can start by the observation that dominant groups take or influence decisions that affect the state’s population and territory through the enforcement of laws and regulations. However, these decisions are assimilated as the ‘will’ of the state, or the rule of law (l’Etat de droit). They are legitimised through the abstract institutions of the state (themselves sanctioned by the supreme legitimacy of the separation of executive, legislative and judiciary powers). Hence, this hierarchy a priori annuls or disregards the power relations that structure the decision-making process. This condition is essential to upholding the state’s raison d’être as a neutral and transhistorical symbol of law and order. In response, social groups engage in different struggles (legal, political, ideological) so as to tamper, counter or absorb the effects of the dominant classes’ influence filtered through the rule of law. For Marxists, turning the analysis of this process on its head (i.e. starting from the class relations at the origins of decision-making) reveals the dependence of the process of state formation and norm-creation on those relations. In this sense the state as legal form or rule of law, abstracts or filters the power differentials that operate within its legal sphere. Consequently, the point of a Marxist critique of law is to make these internal power relations reappear to show the real determinants of the process of jurisdiction. 14
DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION However, for this critique to be relevant to problems identified in mainstream and postcolonial accounts of the history of IL 23 , it needs to develop new concepts. The following will thus discuss those of ‘jurisdictional accumulation’ and ‘jurisdictional struggle’. Struggles for Jurisdictional Accumulation The hypothesis explored here is that understanding this process requires revisiting the notions of primitive and (geo)political accumulation. Jurisdictional accumulation helps to account for noncapitalist but dialectically mediated processes of expansion, specifically early modern Spanish and French cases of state formation and colonization. The use of this concept is thus historical. But, I will conclude by arguing that this forces us to reconsider the continuing relationship between primitive accumulation and IL, by putting jurisdictional struggles at the forefront of critical international legal theory. What differentiates capitalist from previous types of accumulation is the ‘systematic and continuous’ (Wood, 1995: 42) necessity for capitalist production. This type of production is conditioned by the ‘freeing’ of labour from its ties to agricultural land; only then can labour sell itself and generate the propensity to produce surplus value, by allowing more flexibility in the costs of production. What characterises primitive accumulation is the coercive process of separating direct producers from their means of production, led by class struggle and backed by state intervention. Generally, Marxists agree that the system of enclosures in 16th to 17th century England was the first significant manifestation of the process of primitive accumulation. Beyond this, precisely when and where primitive accumulation occurs remains at issue. If Political Marxism has had a particular influence on distinguishing types of accumulation to showcase the different transitional processes of feudal, dynastic and capitalist expansion, this influence can be compared to Marxist work on the contemporaneity of the topic (Midnight Notes, 1990; Perelman, 2000; Mezzadra, 2011; Bush, Bujra & Littlejohn, 2011; Neocleous, 2012). For Neocleous, this focus is speared on by the Postcolonial emphasis on colonisation and imperialism, an emphasis that, as he regrets, is in denial of the relevancy of Marx’s analysis of primitive accumulation. If for Mezzadra the prehistory of capitalism is a permanent feature of its history, for Neocleous this prehistory also manifests itself as IL. This implies that capitalism and IL are not chronologically linear processes. This argument is consistent to a certain extent with Political Marxism, since if the latter 23 Namely, in the case of judicial globalisation and extraterritorial practices, mainstream accounts tend to reproduce a unilinear historical narrative of modernity, which causally excludes the violence of imperialism and of extraterritoriality as determining the expansion of the global liberal order. They also tend to exclude social and political actors that engage in jurisdictional practices but who fall outside of established institutional frameworks. In the case of postcolonial studies, these tend to favour dichotomies based on race, geography and West vs. non- West, coloniser vs. colonised, which fail to provide a more socially organic and interdependent account of social relations and transitions. 15
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Historical Materialism and International Law - University of Sussex

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