Historical Materialism and International Law - University of Sussex

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it also refers to the activity of creating, contesting, and defending those spaces through other types of
technologies (agency).
However, using the concepts of structure and agency comes at a cost, particularly for critical
studies based in the tradition of historical materialism. If it generally claims to attenuate the reductive
nature of the dichotomy through its dialectical conception of history, historical materialism’s
engagement with law has remained overly structural and deterministic. Considering these problems,
the paper confronts leading Marxist scholars in IL with the present focus on jurisdiction. This is to help
resolve some of the tensions between structural and agential processes, as legal drivers and barriers to
international social change. It will, in turn, help to ascertain how to incorporate more constructively a
critique of capitalism, as a particular legal order, to the broader disciplines of IL and IR.
The following quote is a recent example of such an attempt. As an upshot of the renaissance of
critical IL, this work starts from the interdependence between IL, violence and capitalism:
“I am suggesting that to think of international law as fundamental to the dispossession of peoples and to the
accumulation of capital that lies at the heart of colonization is to help us better grasp international law’s
centrality to the global violence of capital.” (Neocleous, 2012)
What does understanding IL as ‘primitive accumulation’ and ‘systematic colonization’ (ibid) mean for
the agency of individual right-bearers (as citizens or activists), but also for jurisprudence and legal
institutions as argumentative structure? If ‘class war is the secret of international law’, as Neocleous
invites us to think, how does this affect our conception of class struggle and of international legal
actors? Does this mean jurisdiction, or legal agency, is necessarily, albeit ‘secretly’, determined by the
violence of IL as systematic colonization?
These questions require an investigation into how legal agency is to be recognised, if at all,
amongst the expanding functions and structures of capital accumulation. The concern here is that a
structural Marxist critique of IL as violence and accumulation is not satisfactory. It a priori leads to
ignoring the use of technologies of jurisdiction as means for resistance or social progress 11 . Domestic
politics in capitalist and democratic states have been dominated by actors' reliance on jurisdiction,
however illusory according to the commodity form theory of law (illusory because the law upholds the
system of exploitation actors expressly try to combat). Crucially, though, the claiming of rights and
jurisdiction as means to counter oppressive forms of power is increasingly present at the
international, transnational or global level. It therefore needs to be better incorporated into critical
11 Miéville’s conclusion, based on his interpretation of the commodity form theory of law, indeed refutes the
potential of rights and jurisdiction as means to fight oppression, or war and inequality: “The attempt to replace
war and inequality with law is not merely utopian – it is precisely self-defeating. A world structured around
international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of
law.” (Miéville, 2005: 319)
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