INTERNATIONAL LAW: TOWARDS A MARXIST CRITIQUE
A book by Júlio da Silveira Moreira
Introduction
Ask the property:
Where you come from?
Ask each idea:
Serves whom?
Bertolt Brecht
The object of this work is the criticism of legal principles applied to International Law. It’s based on the Master’s thesis Critique of legal equality on International Law: nuclear security and war on terror, presented in the Master in Law, International Relations and Development of the Catholic University of Goiás, in February 2011.
It aims to course the Marxist critique of Law to reveal the contradictions between norm and fact in the basic principles of equality, freedom and property; analyses the historic bases of International Law, in works of Vitoria, Grotius and Kant; analyses Imperialism theory as explanation of the economic base of international relations, searching answer for the contemporary international problems.
The research method is based on historical-dialectical materialism applied to juridical phenomenon, considering that “the mode of production of material life conditions the social, political and intellectual life process in general” (MARX). The comprehension of a phenomenon is given not through the image it makes for itself, but due to the concrete relations that characterize it, being social practice the only criteria to true knowledge. The development of phenomenons is remarked by contradictory aspects that, continuously, unite and divide in two opposites with quantitative accumulations and qualitative leaps.
Engels was able to synthesize the laws of dialectical materialist method applied to natural and social processes: law of negation of negation, law of the interpenetration of opposites, law of the passage from quantity to quality. Mao Tsetung synthesizes the knowledge process through contradiction law, observing dialectics between universality and particularity; the distinction from the main contradiction to the secondary ones, and, inside them, antagonistic and non antagonistic contradictions; and the dynamics of identity and struggle of opposites, on which each aspect of a contradiction takes the principality in a specific moment.
Historical materialism advocates that, just as one does not judge an individual by what he thinks about himself, one can not judge a phenomenon for what he claims to be today, but explain it by the contradictions of its historical development in the plan of concrete relations. The reality observed is just one moment of a constant process, and, to know the object, it’s necessary to search its past and its future. The definition of an object by itself does not reflect its essence, but the ideas prevailing at the time it is set, its visible image. By searching the non-visible to explain the visible, the critical thought “refuse to believe and to say that reality is limited to visible” (MIAILLE). After all, “the hidden Law wires many times determine more than its layers visible on the eyes of the jurist” (MASCARO).
International Law is cannot be known by the current status of its rules and its mechanisms, but by its historical development. Certain generalist concepts and formal rules, that prevail in traditional studies, exist for more than 400 years, and so far continue to be reproduced non-critically; “we have the right to demand more of this science, or rather to demand something other than a simple description of mechanisms” (MIAILLE)! By following this way, Marxist critique to International Law defines its object as “the legal form of struggle of the capitalist states among themselves for domination over the rest of the world” (Pachukanis).
The starting point for the theoretical reference is in Marx, with the critique of human rights expressed on rights declarations. Nevertheless, it’s just a criticism of a formal and ideological product of capitalist society – the solemn proclamation of universalizing rights that are no longer the rights of a minority. In an extended research project culminating in the work The Capital, Marx synthesizes the mechanisms for reproduction of capitalist society, breaking the obscure chains of classical liberal Philosophy and Economy, and exposing the contradiction between social production and private appropriation, which cannot be solved in the framework of this system.
The diving on Legal Philosophy is provided by the Professors Márcio Naves and Alysson Leandro Mascaro, responsible for affirming a Brazilian thought on the work of Pachukanis, passing through the critique of various forms of legal ideology. This critical reference has inspired a new generation of jurists that has contributed for a wide bibliographical raise of Marxist critique on Law, not encountered in other regions of the world.
To reach the critique on International Law, it was needed to start from the critique of political economy for the specific grounds of law and state, and from them to International Law. Marxist work reveals the tendency to capital centralization and internationalization, what is expressed in the sequence primitive accumulation > concentration > centralization > monopoly. Living in the times of monopolistic capitalism, Lenin was able to pursue this analysis, with the sequence monopoly > financial capital > capital exports > colonial conquests and repartition of the world. It was also revealed the contradiction on which capitalism internationalization is also the obstacle to capitalist development, what was clarified on the concepts of uneven development and bureaucratic capitalism.
This work has also the worth to introduce, in Brazilian scientific literature, theoretical approaches intensely discussed in international fora: the Third World Approaches to International Law – TWAIL and the Marxist theory on International Law.
The first stream deals with the problems of Third World resistance to the effects of so-called globalization and the critique of traditional concepts of International Law, aiming to use its mechanisms to promote not the domain of capital, but the progress of peoples with the intervention of social movements:
From the standpoint of TWAIL, it is necessary first, to make the story of resistance an integral part of the narration of international law. […] Second, we need to strike alliances with other critics of the neo-liberal approach to international law. […] Third, we need to study and suggest concrete changes in existing international legal regimes. The articulation of demands would assist the OSMs and NSMs to frame their concerns in a manner as to not do harm to third world peoples (CHIMNI).
Within this stream is Antony Anghie, Utah University Professor (S.J. Quinney College of Law), an insurgent voice in discussions of American Society of International Law – ASIL. Anghie articulates the critique of International Law from its fundamental historical bases, showing that the colonial conflict is part of its essence.
Marxist theory on International Law, in turn, reviewing other emerging streams, analyzes International Law lightened by Marxist critique to political economy, starting from the reference of soviet jurist Evgeni Pachukanis. Its main author is China Miéville, Warwick University Professor (England), who, besides a representative on International Law, is a prized fantastic fiction writer.
Below, we present the work plan, under a logical exposition guided by the critique of legal equality.
First chapter starts with historical background of bourgeois revolutions, and their rights declarations. It shows how legal principles of equality, freedom and property were expressed by their very founders, breaking the old feudal order based on privileges. The observation of individualism and abstraction contained in these principles, however, deconstructs its alleged universality, revealing as rights restricted to economic and political interests of a class that rose as ruling class.
This reveal deepens in the critique of political economy, precisely in phenomenon of commodity exchange. It gives raise to two essential legal concepts: legal relations between subjects of law – exchange relations between free proprietors legally equal, as the base of all legal form. Equality in law needs inequality in fact; abstract freedom is broken by necessity; abstract property is the status of an expropriated subject who can only offer his work force. Legal ideology, from the fetishization of legal rule, hides these contradictions, making believe that law origins from rules, and not from legal relations.
Then, the state concept is analyzed, bringing the political element as essential to understanding the legal one. It seeks to draw the criticism of idealistic explanations about the role of the state, that culminate on its definition as an instrument for common good. Social contradictions, taking the form of irreconcilable class antagonisms, make necessary the creation of a sphere apart of society – and from it separating more and more – where one class coercion over other take the form of legitimated and impersonal violence.
Second chapter reach the plan of International Law, whose basic relations are formed by subjects of law that are the very States, as public forces for legitimated violence. Here is important the integrated approach of Francisco de Vitoria, Hugo Grotius and Immanuel Kant works, and further criticism.
Since mercantilist era, which made history move from feudalism to industrial capitalism, jurists and theologians sought to recover Roman Law concepts to show that war is not contradictory to International Law; rather war is inherent to International Law content.
Great maritime and colonial conquests outside European continent were definitive for capitalist International Law formation. European settlers founded in the cultural particularities of Native Americans an obstacle to commodities exchange. It was needed to internationalize legal equality, by universalizing the condition of subject of law – which permitted capital primitive accumulation. Thus, it was resumed the concept of sovereignty: subjects of law were not only equal, they were also sovereign. But such sovereignty was distinguished for “civilized” and “uncivilized”, what justifies colonial wars: make them fair wars according to that era’s doctrine. Marxist critique can explain why inequality between international subjects was necessary to commodity exchange, and at the same time was aggravated by it.
Third chapter focuses on Imperialism Theory and its implications. Shows that the passage of capitalism from competitive form to monopolist form strengthened the tendency colonial conquests in a new condition in which there were no more territories to conquer. Over there it is possible to understand International Law as “the legal form of struggle of the capitalist states among themselves for domination over the rest of the world” (PACHUKANIS), drawing over this axis the history of that phenomenon to conclude that colonial conflict is central for development of International Law, and is part of it’s very structure, until reach contemporary form. Notions of uneven development, bureaucratic capitalism and rupture of legality under imperialism help to understand this legal structure.
International Law plays the role of shaping imperialist practices, such as, in current times, legal concepts of “sovereignty” and “equality” are labels to cover relations that are the very continuation of colonial era, even when speaks about decolonization. Although International Law asserts that, formally, there is no more colonialism, international relations are in practice marked by subordination and exploitation.
Fourth chapter examines some international legal relations that followed the two 20th century world wars, and the models of international organizations that rose from these times. The failures of League of Nations are likely to recognize also United Nations as an organization of winners over losers, by asserting, more than any other principle, peace and collective security, which in turn lead to problems of disarmament and nuclear security.
The contradiction between liberalization and monopoly in trade and production of nuclear weapons exposes and confirms the paradoxes of international legal practice. Finally, 21st century begins with an attempt to review of International Law to combat an “enemy” stereotyped on the “terrorist”: the so-called War on Terror. This review appears to be no longer than a new justification for colonial conflict. After nearly 500 years, International Law finds its origins, now under new determinations.
Notes on Book
By Prof. Radha D’Souza
School of Law, University of Westminster
20 September 2011
The field of Public International Law is one that has remained in the shadows of International Relations or International Economy for so long that it is yet to develop a critical discourse that engages its theoretical underpinnings. Historically Public International Law has developed through two defining dynamics: the competition between capitalist states on the one hand and colonization on the other. It is only since the end of the Cold War and the sustained critique of globalization that Public International Law’s claims of equality, peace and promotion of prosperity began to be seriously interrogated. In part at least it was the post World War consensus on the UN system that left the assumptions of Public International Law unchallenged. Not surprisingly the TWAIL group of scholars which the book draws on were the first to begin a systematic challenge of International Law from Third World perspectives. A Marxist critiue of international law is far more challenging as it brings to the fore the interplay and complexities of nations, classes, new forms of capitalism and contemporary forms of imperialism. The sheer dearth of critical Marxist analysis of public international law makes any contribution to the small body of literature worthwhile. Moreira’s book contributes a great deal more. Much has been written, at least in the English speaking world, on collective security and the so called ‘war on terror’. Much of these writings critique international law for its failings in relation to collective security and ‘war on terror’. Moreira goes further. He provides an analysis of the theoretical foundations of international law from Marxist perpectives. He argues that states are objects of international law and their relationship must be understood based on their material foundations in the political economy of the contemporary world. However that does not make a study of international law superfluous or something derived from political economy. On the contrary public international law is a constituent thread with its own distinct features and concepts that is a necessary constitutive je element of the global political economy that sustains global inequalities of contemporary imperialism. In other words the legal thread is as vital as the politics and economics in international relations. Not being a Portuguese reader I have had to base my comments on the detailed synopsis of the book provided to me. I regret not being able to read the Moreira’s work in Portuguese and hope it will be translated for English readers some day.
