Historical Materialism and International Law - University of Sussex

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DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION directions in which to develop a historical materialist critique of capitalist juridical expansion. A Historical Critique The commodity form theory incorporates the transition to capitalism into the history of IL, and Miéville proposes mercantile imperialism as a central explanatory process intrinsic to the development of IL and to the capitalist state system. He thereby provides a strong historical critique of Neoliberal Institutionalist accounts that posit judicial globalisation as a new world order distinct from its violent imperial past. This critique reveals that coercion is not logically separable from judicial and economic liberalism. However, Miéville’s narrative does not account for the differing jurisdictional struggles that construct early modern forms of sovereignty, in European and non-European polities. Crucially, this missing history cannot simply be added to his narrative. The commodity form theory of law itself is put into question by the need to account for historical specificity, since its method is based on states’ external similarities. The following will firstly retrace how the structural aspect of commodity form theory objectifies certain social relations while excluding others, such as the social history of legal and political thought and thereby, discursive practices such as legal argument. Secondly, the section will focus on the methodological reasons for this structuralism (states’ ‘shared characteristics’ and analogy between state and individual). Form Analysis and the Exclusion of Legal and Political Thought Starting from the abstract, non-capitalist legal form, Pashukanis and Miéville argue this form is then reconstituted by changes in social content, i.e. commodity capitalism driven by mercantilist states. The issue is that once this change occurs, the legal form becomes again a closed and monolithic structure of coercive and paradoxically free international legal relations. This structure translates into the international rule of self-help or balance of power. The absence of sovereign world authority in effect positively authorises subjects to rely on coercive violence. The argument arrives at a Hobbesian conclusion where the assumption of ‘might is right’ conceptually undergirds the commodity relation as coercive. The important difference being that this rule of ‘might is right’ is not a negative condition of human nature, but a positive condition of capitalist relations. One reviewer, for example, described Miéville as “an ‘upside-down’ Morgenthau” (Messineo, 2008: 663). In the end, his commodity form theory of IL reproduces a Realist concept of ‘capitalist international anarchy’ as a structure of legal imperial violence 17 . Therefore, although Miéville acknowledges the transformative role of social content, form 17 See Knox (2009: 425-426) for a discussion of how other forms of violence are constitutive of the commodity relation. 8
DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION analysis retains this structure of legal imperial violence as a fixed horizon from which social content cannot escape in its discursive or judicial form. For example, as a discursive form, the role of political and legal thought in the construction of IL is sidelined, if not excluded. For example, the evolution of the concept of private property in the history of political and legal thought is deemed secondary to the emergence of private property as form in the commodity exchange. The commodity form theory rules out the potential relevance of different conceptions of private property, such as those between French mercantilists and Adam Smith. In effect, Miéville’s legal form analysis reifies a specific mercantilist conception of private property that does not apply to Britain. More generally, situating political and legal thought outside or as secondary to the emergence of both the legal subject and bourgeois state reduces the history of political thought to an instrumentalist function. Sidelining or excluding this intellectual history objectifies the international legal relation as one of commodity exchange and in the end restricts the explanatory potential of commodity form theory. To be more precise, Miéville’s discussion of Hugo Grotius (1583-1645) and John Selden (1584- 1654) goes some way towards incorporating discursive practices (2005: 208-214). As each scholar argued for the regulation and deregulation of maritime sovereignty, they thereby attempted to develop new juridical conceptualisations of the political and economic spheres. However, since the analysis remains separated from the social relations and debates in which each scholar evolved, it fails to take more seriously the implications of their divergences and of the heterogeneity of state formation. For example, on this issue of Grotius and Selden’s importance for the transition to a ‘modern maritime polity’, Miéville (2005: 214) insists that Adam Smith’s (1723-1790) role was not transitional. However, Teschke (2011c) points out that there is a difference between 17th century ‘open’ seas in the context of military rivalry, and 19th century ‘free’ seas for the exchange of trade, weakening the argument for 17th century ‘Grotius-Selden’ mercantilism as the primordial mode for the universalisation of trade and IL. This example of the crucial differences between 17th and 19th century international relations, and thus of different instances of mercantilism, is indicative of the competing social contexts in France and England and applies to both issues of private property and theories of maritime law. It indicates that legal and political debates, and their social context, can be crucial to the development of international legal practices. This objectification has already been criticised by Marxist scholarship (Marks, 2007: 199; Bowring, 2008; Bachand & Lapointe, 2010; Knox, 2009). They broadly argue for a more dynamic and ‘context-dependent’ definition of the legal form, able to encompass a broader plurality of international legal actors as well as the ‘reality of judicial activism’ (Marks, 2007). Nevertheless, these authors have as yet shied away from constructing an alternative theory. And, as Knox writes: “legal argument can never address systemic or structural causes…if we agree that the legal form is a result of commodity exchange - and international commodity exchange is global capitalism – then unless the legal form is used to abolish its own conditions it will never be able to overcome these problems.” (2009: 432). If an 9
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