Friday, April 27, 2012

Book Review: Between Equal Rights

In this work, China Mieville attempts to develop a Marxist theorization of international law. Ultimately he draws on the work of Soviet legal scholar Pashukanis and defines a “legal form” as essentially the framework inhering between two formally equal owners of commodities, with different means of force to protect or infringe rights of property. International law, then, is merely a case of the legal form in which the juridically equal subjects are sovereign states (their property being their territory).

Some of my previous critiques of Marxist theorizations of law apply to Mieville’s work: 1) He ignores the specificity of modern legal discourse and practices (notions of “rights,” the status of written records, the treatment of evidence, etc. – these are not, I would argue, superfluous, as they are important criteria on which determinations of “legality” are based); 2) Although he is fond of very judicious use of the word “dialectic,” he does not seem to understand the real meaning of this term, such that 3) He cannot adequately explain the independence of law (how its practices are employed by a large variety of people who hold its inherent validity above personal interests) and how law itself may impact political-economic conditions; and 4) He treats sovereign states as coherent entities.

The biggest weakness of Mieville’s analysis, however, is his conceptualization of the “international” realm. Scholars such as James Ferguson and Akhil Gupta (see 2005 article: “Spatializing States: Toward an Ethnography of Neoliberal Governmentality,” in Anthropologies of Modernity: Foucault, Governmentality, and Life Politics) have argued that different orders of geography should not be treated as sub- or supraordinate. It is not a case of nesting Russian dolls. The nation-state is not “above” regional interests, and transnational organizations are not “above” sovereign states. Rather, a type of lateral reasoning must be employed, in which actors of supposedly different scale are treated as different agents interacting within the same plan of action. For example, if one looks at a vote over a controversial issue taking place in a transnational organization, one might see a variety of different actors involved: corporations, acting either individually or as an industry, voting representatives who may be tied to state bureaucrats and/or local elites, and organized interest groups, with or without financial resources. A transnational organization is nothing more than an additional place where people can interact with one another. The idea of certain organizations existing on a higher level than others is a image cultivated by these very organizations as a ploy to "secure their legitimacy, to naturalize their authority, and to represent themselves as superior to, and encompassing of, other institutions and centers of power" (Ferguson and Gupta, 2005, pg. 105-106).

Now, I would agree with Mieville that violence is inherent to law. But I also think it matters what kind of violence. Specifically, law is inextricably tied to the notion of “legitimate” violence. Law is the foundation of the legitimacy of violence. This is another place where I part ways with Mieville, when he insists that, whatever a state is able to accomplish via its means of violence, is law; in fact, the reason why states may be seen to violate international law is not purely a matter of interpretation. Forces like the UN “peacekeeping” troops (which may be comprised of armies of individual nation-states) are imbued with legitimacy, providing they stick to certain guidelines (following UN votes, etc.). State violence is legitimate within its own borders (and also following certain legal guidelines), but generally is not considered legitimate when it interferes with another state’s sovereignty. It is for this reason that states may be seen to violate international law.

Now, returning to the concept of the state itself. Is, as Mieville claims, a sovereign state even necessary for the existence of international law? I would argue that any entity (really existing or ideologically constructed) that can legitimize violence is sufficient for the existence of law in general: that may be (and usually is) a state, but it may not be. Contrary to Mieville, states are not real, bounded entities; they are not parties or subjects. The idea of “the state” is part of the ideological construction of the legitimacy of violence in the modern era, and that is why it serves the purposes of law so well. However, since an organization like the UN is also capable of bestowing legitimacy on violence, regardless of how frequently it employs that violence or whether or not it is effective, its role should not be so readily dismissed.

Hence, I would distinguish international law from domestic law only in that the executor of “legitimate” violence is different in either case. Of course, the discourses and types of disputes involved may also be differently focused in each case, but any actor that may be a subject of international law may also be a subject of domestic law, and there is no fundamental difference between the two.

The "problem" of international law really is not a problem at all.

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