Historical Materialism and International Law - University of Sussex

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DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION Mainstream or ‘Neoliberal Institutionalist’ studies explain and justify the juridical expansion of a 'new' global liberal order through the concept of judicial globalisation (Slaughter, 1994; 2000; Raustiala, 2009). This consists in the increase in inter-judicial dialogue (e.g. citing of foreign decisions by national judges), the standardisation of an increasingly transnational legal profession (e.g. international conferences and increased demand for legal experts in institutions such as the WTO and ad hoc adjudicatory bodies), and, also, the rise of extraterritoriality 4 (legislation and court decisions with extraterritorial reach in leading OECD states). These changes are prevalent in the domains of commercial or antitrust regulation (IBA, 2009; Zerk, 2010), International Criminal Law (Hasson, 2002; Bassiouni, 2006), International Law of Human Rights (Skogly and Gibney, 2010), but also intellectual property rights and internet regulation (Pal, 2012) 5 . Concurrently, a recent body of critical literature has been focusing on ‘jurisdiction’ as a starting point for analysing international legal orders (Dorsett and McVeigh, 2012). “jurisdiction is the practice of pronouncing the law. It declares the existence of law and the authority to speak in the name of the law ... We can therefore consider jurisdiction as the first question of law, because it asks whether law exists at all, and thus determines what can properly be considered law ... Perhaps most importantly, it both gives us the form and shape of law and the idiom of law.” (Dorsett and McVeigh, 2012: 4-5) This new research programme builds from the rise, since the late 1960s, of Postcolonial and Critical legal studies 6 . It interweaves historical revisionist studies of the evolution of legal institutions with analyses of contemporary problems organised around persons, places and events, as modes of 3 The integration of the term ‘global’ has been steadfastly developing out of the U.S. since the late 1990s. For example: “In recent years in the United States, constitutional reasoning and practice has been going global.” (Kersch, 2005: 345). Such opening statements have become commonplace in IL journals (see also Baudenbacher, 2003 for a symposium and general review of this trend). 4 If extraterritoriality is mostly associated with 19th century unequal treaties between imperial powers and semisovereign entities (e.g. China, Japan, Ottoman Empire), the term has gained new use and meaning in the 21st century. Extraterritoriality now refers to the increased transnational activity of domestic courts and to the increased legislative activity of governments over matters outside their state’s jurisdictional limits (Raustiala, 2009; Putnam, 2009). The ability to make claims and prosecute individuals and organisations in different judiciary systems has been considerably expanded and made more complex. This has led to a multilayered map of the international legal order with overlapping and novel connections between different jurisdictions, domains of legal activity and legal systems. Although primarily lead by the U.S., this practice is now being pursued by other states in Western Europe, and in Canada, Australia, South Africa and Japan (Parrish, 2008: 1458-1459). 5 See Parrish (2008; 2009) for comprehensive reviews of the literature on extraterritoriality. 6 For example, Alexandrowicz, C. H. 1967, An Introduction to the History of the Law of Nations in the East Indies, (16th, 17th and 18th Centuries), Oxford: Clarendon Press; Green, L. C. & Dickason, O. P. 1989, The Law of Nations in the New World, Alberta (CA): University of Alberta Press; Koskenniemi, M. 2001, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, Cambridge: Cambridge University Press; Anghie, A. 2005, Imperialism, Sovereignty and the Making of International Law, Cambridge: Cambridge University Press; Benton, L. 2010, A Search for Sovereignty: Law and Geography in European Empires 1400-1900, Cambridge: Cambridge University Press; Kayaoglu, T. 2010, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China, Cambridge: Cambridge University Press 2
DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION jurisdiction 7 . This critical literature can also be read as a product of contemporary transformations of the international legal order marked by the blurring of the boundaries between international and domestic, private and public domains 8 . In other words, the world that is being described by both Neoliberal Institutionalist and critical international lawyers is one of jurisdictional change, i.e. a world where those enunciating and regulating the law are innovating with ‘new’ institutional spaces and legal mechanisms. Whether such practices further the global liberal order or contest it, jurisdiction emerges as a central concept. Broadly conceived as englobing the discursive and sociological foundations for legal practices and systems, it deserves more serious engagement, particularly in IR and Historical Sociology. Such is the general objective of the research from which this paper emerges. However, the aim here is not to directly engage with these two sets of literature. Instead, having previously established some of their deficiencies 9 , the paper moves on to develop a deeper theoretical discussion of how historical materialism can provide sounder bases to a historical sociology of public IL. Nonetheless, it is important to recall that this endeavour remains grounded in a critique of the social and political implications of Neoliberal Institutionalism, as well as in a critique of the theoretical limits of Postcolonial accounts. Thus, the historical sociology hereby proposed has two aims. Firstly, it enriches existing historical narratives of the emergence of modern IL. Secondly, it provides new conceptual tools to understand the, in my view, continuing links between nineteenth century and contemporary legal mechanisms, as strategies of expansion and accumulation. In this context, jurisdiction is the thread that links these two different aims, and around which I construct the following attempt at an alternative historical sociology of IL. One way to engage with jurisdiction is to reflect on the way it which it embodies both concepts of structure and agency. If jurisdiction refers to the institutions and legal mechanisms (or ‘technologies’ 10 ) in place to uphold the authority and legitimacy of spaces of law and order (structure), 7 Dorsett and McVeigh (2012) illustrate the categories of persons, places and events by, respectively, cases of euthanasia, indigenous land rights, and forms of the international shaped by institutions and judicial events (e.g. the Eichmann trial). 8 The late 1990s also saw the emergence of important works converging International Political Economy and IL from a Neo-Gramscian perspective. Claire Cutler (1997; 2003) broke some ground in terms of the history of private IL (lex mercatoria) and developed an alternative narrative that highlights the vagaries of the distinction between public and private spheres. Chris May (2000) and Susan Sell (2003) also developed this body of work, notably by focusing on the political economy of regimes of intellectual property rights. However, this paper and the broader research it stems from, are more concerned with the public dimension of IL, that is the development of IL in terms of state formation and social property relations, as means for actors and institutions to acquire public legitimacy and sovereignty, i.e. independence. 9 See chapter 1 of doctoral thesis. 10 Dorsett and McVeigh focus on ‘technologies of jurisdiction’, four of which they discuss at length: writing, mapping, practices of precedent, and categorisation: “thinking about jurisdiction as a technology enables us to understand how jurisdiction works in law. It helps us to work out how to do things with law. Thought of in this way, jurisdiction is a practical and technical activity. It is, however, a specific kind of technical activity. As a technology, jurisdiction produces legal meaning. It is a jurisprudence.” (2012: 14) 3
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