Author: Kanad Bagchi

A. IntroductionEdit

Marxism is a broad church. Its traditions are as old as they are contested. “…Spilts, disagreements, and denunciations…”[1] within it are routinely common. No wonder that many of its tenets have been hopelessly misinterpreted by both Marxists as well as non-Marxists scholars, associating Marxist thought with abject reductionism, crude economic determinism and a certain complicity for authoritarian and dictatorial rule. Ironically enough, Marx himself had vehemently decried being called a ‘Marxist’.[2] To write about a Marxist legal approach is equally difficult, given that Marx and Engels did not have much to say about the law, let alone international law.  

Yet, Marxism is not simply about the words and writings of Marx or Engels alone. Generations of Marxist scholars have drawn from Marx’s larger insights into society and history to explain a number of propositions about law and more recently on international law. Resisting alongside a number of other critical movements, including TWAIL, Feminist and Queer theory, critical legal studies and post-colonial approaches, Marxists have challenged international law’s fundamental claims about promoting peace, prosperity, equality or progress. Even while maintaining this critique, Marxist legal theory has pointed to ways in which law can and should be instrumentalized towards progressive ends mindful of both the reifying structures of the system and its limits for emancipation. Having said that, Marxist legal theory still has much ground to cover, several blinkers to shed and the continuing need to open its discursive space to other critical voices. In what follows, I reflect upon five distinct perspectives that Marxist scholars have brought to the disciplinary understandings of the history and present of international law. Additionally, I also highlight some of the blindspots within Marxist legal theory and how recent scholarship has made important strides to fill those voids. My account is necessarily going to be partial and incomplete. Yet, I hope it is readable, accessible, but most crucially, provides a starting point for further debate and revision.

B. Marxism as 'Perspective' and 'Critique'Edit

The use of ‘perspective’ rather than ‘method’ is a conscious choice. Marxist theory rarely conforms to the idea of a singular method of approaching law. For the most part, Marx and the larger Marxist tradition is a theory about the totality of social forms and relationships among individuals, rather than a specific set of propositions on the law. To invoke a Marxist lens is to view the world and society as an endless set of inter-relationships, where one phenomenon is always connected to the other. This means that ideas, institutions and human agency needs to be understood as part of an “integrated whole” that is both dynamic and also beholden to history and past structures.[3] As Marx's had insightfully claimed “[m]en make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.”[4] How we think about the law then, will depend on how we think about the determining elements of social relationships more broadly. This is where one’s intellectual framework, i.e, theory about the world, collapses into the narrow question of method. Moreover, ‘Marxism’ continues to evolve, even as it registers critique, new ways of thinking and a continuing push against its own traditions. Confining Marxist theory to a pre-determined set of propositions or institutional boundaries is not only misguided but also deeply depoliticizing. ‘Perspectives’ in this sense keeps that space open to be constantly revisited and challenged.

Broadly stated, a Marxist critique is a structural critique, not aimed at individual instance of exploitation or subjugation alone, but a reflection on the material structures of society at a systemic level, which make such exploitation part of the ordinary and mundane. It is also an ‘internal’ critique of the system, that exposes the inner contradictions of its operating logic. Law then is to viewed as a social practice with its own internal formal logic containing a set of argumentative structures that give stability to dominant interests and power. It probes us to think about law and international law not as a fragmented, insular and detached body of rules, but as part of a larger social and economic infrastructure, within which it is embedded and takes its form. Finally, Marxism is not simply a set of theoretical escapades, but a call for radical political action to change existing structures of political economy. [5] It is inherently an emancipatory ‘praxis’ the aim of which is to “create space for interpretive rules and strategies that contribute to the welfare of the subaltern classes”.[6] Marxism therefore, does not draw an overtly strict boundary between ‘theory’ and ‘practice’, acknowledging that one is necessarily dependent on the other.

C. ‘Five’ Marxist Perspectives on International LawEdit

Despite having a rather long and influential pedigree, Marxist approaches to law and international law in particular, largely remained in the margins of the discipline, even within critical circles. Yet, in the last decades, Marxist scholarship in international law has witnessed somewhat of a ‘revival’. This is not least due to the fact that many of our contemporary crisis, whether that be the ‘War on Terror’, rising inequality, financial crisis, climate change, racial injustice, violence against women and indigenous communities and the rise of authoritarian populism, has brought to the fore, capitalism’s worse consequences. Alongside that many of the contemporary social movements whether that be the farmer’s protests in India, the black lives matter movement or the Palestinian struggle against imperialist violence, have been mobilized using Marxist language, even if not explicitly. Increasingly, the visible inter-connectedness of ‘local’ events with the global structures of political economy have called into question the role of international law in the (re)production of worldwide dispossession and alienation. Marxist concepts such as ‘class’ ‘ideology’ ‘economic base’ ‘commodification’ carry tremendous explanatory potential in laying bare the systemic forces at work which naturalizes the historical legacies of this unequal and violent order of things.

1. International law as a Material Phenomenon Edit

Marxist theory often begins with the fundamental claim that all social relations need to be understood in its ‘historical-material’ context. This means that law, like any other social form of regulation cannot be studied in isolation, but as having its roots in “the material conditions of life” which then are the “real foundation, on which arises a legal and political superstructure.”[7] Legal relations correspond to and is a reflection of the larger economic processes within society. It is important to remember however, that the relationship between law and the economic structure is neither static nor unidirectional. To the contrary, the relationship of the ‘base/superstructure’ is highly continent, co-constitutive and even contradictory – a point that is routinely forgotten. The task of Marxist legal scholarship then, is to ask how this relationship plays out in concrete situations.

Unlike liberal accounts of the discipline, a ‘historical-material’ perspective locates the rise of international law to the consolidation of global capitalism. In this, the story of capital, although begins in Europe, travels to the rest of the world through colonial expansion and imperial violence. Primitive accumulation - the resolutely violent and coercive enterprise of “divorcing the producer from the means of production”[8] becomes the chief means of encounter between capitalist Europe and the non-capitalist world. For Marx, colonial expansion and the “extirpation, enslavement and entombment” of the native population was not only indispensable for capitalist accumulation, but was a natural consequence of it.[9] International law including its rules concerning trade and commerce, the doctrine of sovereignty and the legal standard of ‘civilization’ become central to this project of worldwide domination and subjugation.

Thus, from a Marxist perspective, imperialism and colonial expansion is a material phenomenon at the heart of which lies the need for capital to constantly expand “over the whole surface of the globe”.[10] This not only requires forcibly robbing native populations of their subsistence, but also wholesale transformation of non-capitalist societies into the image of capitalist modernity. As Rosa Luxemburg had argued, “Capitalism must always and everywhere fight a battle of annihilation against every non-capitalist form that it encounters.”[11] Imperialism in a Marxist sense then, is “the political expression of the accumulation of capital"[12] which works to efface all traditional forms of economic and cultural organization and turn them into social spaces that would be safe and productive for capital. Similarly, the distinction between ‘civilized’ and ‘uncivilized’ and corresponding denial of ‘sovereignty’ to the latter from the realm of 19th century European international law was not only about racial supremacy or domination, but was centrally rooted in the logic of capitalism. Equal sovereignty for the colonies could only come through Western capital, the creation of a centralized bureaucracy and through ‘modern’ forms of political organization.[13] Realization of ‘Statehood’ under international law became synonymous with violent capitalist transformation.

Viewing international law through a materialist lens points to the several ways in which the civilizing mandate continuous to the present day, even when the language of racial difference has witnessed a relative decline. It allows us to witness modern international law as a continuation of past practices of “exclusion and conditional inclusion” of the non-Western world.[14] The post-WWII international legal order which was purportedly based on international rule of law and self-determination did not fundamentally alter the imperial nature of international law, but marked the beginning of “imperialism without colonies”.[15] Imperialism gave way to "the grip of neo-colonialism", tying the third world to the economic dependence of former colonial powers and the institutions which they controlled.[16] The disciplining effects of international law and international institutions manifest itself in the large scale remodeling of the Global South through instruments of structural adjustment and conditionality, market liberalization, promotion of rule of law and protection of foreign investment.  The IMF and the World Bank, among others, promote monetary stability, free capital mobility, disciplined finance and a shrinking of the public sector, under the pretext of seemingly innate and neutral concept of ‘good governance’. David Harvey calls this “accumulation by dispossession” to refer to the accelerated ways which capital inhabits every non-capitalist space, leaving in its wake mass poverty, social stratification, forced migration and land dispossession. [17] Accumulation by dispossession is primitive accumulation in the neo-liberal age aided by the privatization and commodification of natural resources. Modern international investment law, especially BITs entrench the power of foreign capital, while the WTO prescribes for harmonized rules, subjects state autonomy to international adjudication and legalizes the international protection of property rights.[18]

The logic of Marx’s ‘primitive accumulation’ as a gateway to both imperial expansion and capitalist transformation is also writ large in the continuing forms of settler-colonial practices across the world where dispossession and expropriation of indigenous land and territory is legally and constitutionally sanctioned. It allows us to conceptualize the relationship between international law, capitalism and imperialism as a permanent process and not one that ought to be confined simply to the ‘pre-history’ of the discipline. International law as a material phenomenon contests many of the ‘idealistic’ portrayals of the discipline which traces its contours to mythical accounts of benign trade between private individuals, ideas about denouncing ‘war’, ‘human rights’ or ‘peace’. Instead, Marxist accounts of the field have spent considerable efforts in grounding these ‘ideas’ about international law within a historically specific and materially influenced conception of evolution, where it is indistinguishable from violence and expropriation. Here, as Antony Anghie had argued, that international law is imperialism all the way down and much like the birth of capital in Marx’s analysis, international law also comes into the world dripped in “blood and dirt”.[19]

2. International Law as a Class ProjectEdit

‘Class’ is the organizing principle of society in the Marxist tradition. Marx’s had famously remarked that “The history of all hitherto existing society is the history of class struggles,” between those who own the means of production and those whose only means of subsistence is their labour power.[20] What he meant was that all aspects of social relationships, including those that make up the economic base, are never a constant, but continuously evolve through the struggle between different groups within society. These struggles are often expressed through the law: “(e)very struggling class must therefore formulate its demands as legalistic demands…”.[21] The law becomes crucial here as the means through which class conflict is not only mediated, but more fundamentally, it is in the process of engaging with the law that class consciousness takes its concrete form. So even while law and legal structures reflect, reify and consolidate the interests of the dominant classes, it also simultaneously shapes the form and content of the struggle itself. The outcomes are therefore never pre-determined. 

‘Classes’ however, are not simply confined to the domestic borders of a given political community. With the consolidation of the neo-colonial project in the 1970s and the accelerating trend towards hyper-globalization, class formations too acquired a different dimension. The monolith identity of the ‘state’ as an actor in international law was superseded by rise and prominence of international institutions and loose coalition of networks. Almost all aspects of state sovereignty were transferred, even as domestic policy space became ever more constrained. More fundamentally, the state found itself enmeshed within the capitalist global economy, aided by the rise of a new social formation – an emerging transnational class fraction – which pushed against national borders and territorial delimitations. Capital accumulation now relied on a “globalized regime of exploitation and waged labour".[22]

Marxist scholars, especially Rasulov and Chimni, argued for a class approach that visibilizes the role and significance of different social groups and classes which materially influence and shape the formation of international law.[23] They pointed to the emergence and consolidation of a transnational capitalist class (TCC) - a dispersed, yet influential fraction of capitalist classes from advanced capitalist countries and the Third World. Even while situated in different geographic spaces, the TCC was global and had as its primary objective the facilitation of capital accumulation. TCC works closely with international institutions to advance their interests and to create a “functional unified global economic space” where restrictions to capital movement could be flattened.[24] On the flipside, an emerging transnational oppressed class (TOC) comprised of social groups who are disenfranchised from the means of production came to be gradually consolidated. Newer forms of exploitation, corporate abuse, in-formalization and displacement greased the wheels of capital. Much like their counterpart, the TOC operate transnationally, building coalitions with different oppressed groups and use both legal and political means to push against the TCC.

In this constellation, international law becomes a site of class struggle between the TCC and TOC and thus promotes both class consciousness and provides its constitutive structure. This is most visible in the struggle for environment, bio-diversity, development related displacement and the like, where interests of capital compete with rights of labour, indigenous communities, agricultural workers. These antagonisms play out through overtly capitalist institutions such as the WTO, World Bank and the IMF, but also through institutions such as the International Labour Organization, which one might otherwise think works to correct the imbalance of power between capital and labour.[25] What we have then is an “emerging bourgeois imperial international law” which speaks in the language and uses the rhetoric of universal human rights and ‘rule of law’, even while entrenching material and ideational primacy of capitalist classes.[26]

A class approach to international law helps navigate through the black box of the state and international institutions by identifying the dominant groups which benefit out of the system of international law.[27] It also helps foreground a more granular story of resistance by TOC to capitalist accumulation and directs our focus to new actors in the global arena. From social movements to civil society organizations espousing the cause of TOC, international law is made and re-made in a number of different terrains.

3. International Law, Ideology and the Critique of UniversalityEdit

A sensitivity towards class structures demystifies liberal claims concerning the ‘universality’ of international law in the sense that many of its proclaimed values such as a human rights are susceptible to selective interests and open to co-option by dominant groups and classes. Law then becomes a means to sustain and stabilize particular interests as universal ones. In the Marxist tradition, this is law acting as an “ideological form” which domesticates resistance and class conflict, by depoliticizing legal relationships and rationalizing conceptual categories.[28] Ideology in the words of Susan Marks, plays a “key role in legitimating exploitation” precisely by representing capitalist social relations as natural and permanent.[29] Relationships of domination and exploitation are delineated as pertaining to the individual sphere rather than as systemic outcomes. In other words, a focus on ideology exposes the abstracting character of the law, that flattens differences of power, even while projecting exchange as transpiring between ‘free and equal’ participants.

It is not difficult to see how ideology critique provides a useful lens to the work of international law, especially in the context of deeply political conflicts. From humanitarian intervention to economic conditionalities as well as the ‘war on terror’, capitalist states and international institutions have routinely invoked international law to justify a particular idea of ‘liberation’ and ‘freedom’.[30] Sundhya Pahuja for instance, has shown that notions of ‘development’ when prescribed in universalistic terms carries with it the prescription for particular kinds of economic and political arrangements which mirrors Western bureaucratic-state apparatus essential for capital accumulation.[31] International law by focusing on domestic roots of ‘poverty’ and ‘conflict’ in the ‘third world’, detracts attention from the systemic patterns of capitalist exploitation and violence at the heart of ‘core-periphery’ relationships. Similarly, the growing infrastructure of international adjudication and the increase in specialized forums of dispute resolution add another layer of depoliticization to social conflicts concerning, land, environment and property. Even the concept of ‘democracy’ promoted by international law sidesteps crucial questions of entrenched social hierarchy and inter-group domination, while privileging a narrow set of indicators and benchmarks to assess participation.[32]

To point to the ideological character of international law is to make apparent what is made invisible and lay claim to the ‘false necessity’ of existing structures. It probes us to think about the contingency of social arrangements and the fact that they need not be the way they are. Yet if exiting social relations seem inevitable or natural, it is but the result of repeated “ideas and rhetorical processes” which legitimize and order such structures. But one should also be mindful of the fact that even though historical relations are contingent, they are not always open to change. Quoting Susan Marks once again, “just as things do not have to be as they are, so too history is not simply a matter of chance and will”, meaning that human agency while paramount for resistance and change, always operate within the “logics of a system".[33] In other words, as much as one ought to be skeptical of historical necessity, meaningful transformation can only transpire through a clear-headed understanding of the ‘false contingency’ and limits of individual action.

4. International Law as Commodity FormEdit

For Marx, capital makes ‘commodities’ out of everything, but most crucially capital expands by commodifying labour power. The process entails both abstracting the individual from the product of its own labour for surplus value, but also alienating labour from the very means of production. With the spread of capitalism, commodification extends to every aspect of life mediated of course though legal relationships. Capitalist relations then are marked by an endless collection of commodities connected through an endless set of legal relations.[34] Capital and law exhibit a structural relationship in the Marxist tradition.

Commodification and the abstracting/individualizing character of the law was central to the work of soviet jurist Evgeny Pashukanis, one of the most influential Marxist theorists of law. Drawing from Marx’s insight that ‘commodities’ are but the elementary form of wealth,[35] Pashukanis argued that in a capitalist society, relations between individuals based on property rights are homologous to abstract commodities which are traded. Just like for commodities to be exchanged, each party much recognize the other as an equal owner of property in an abstract sense, so too does the law treat those parties as equal bearer of rights. In other words, the “legal subject is thus the abstract commodity owner elevated into the heavens"[36] and that the legal form mirrors this commodity form. One of the fundamental insights of the commodity form theory is that law treats individuals as abstract, neutral entities, detached from the material conditions in which they exit. This makes it seem that exchange is between two equals, even while the law invisibilizes and “permits real inequality” among individuals. Much in the same way, Pashukanis illustrated that sovereign entities in their relationship to one another precisely operate as owners of property (read territory) with each possessing equal rights and obligations. This formal equality in status eludes however, the reality “that they are unequal in their significance and their power”.[37] It is in this context that Pashukanis characterized international law as “the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world”.[38]

The crucial question that arises is how are disputes then resolved between two formally equal sovereigns? What is the nature of the legal form that makes certain claims trump over others? This is where China Miéville in his highly provocative book, Between Equal Rights[39] extended Pashukani’s commodity theory to argue that the legal form inherent in international law is that of coercion. Exchange implies ownership and ownership is primarily about the right, mostly exercised through the law, to exclude others.[40] Since international law does not have a centralized system of enforcement, sovereign entities themselves resolve disputes to the interpretation of rules. In a deeply unequal world, what this means is that powerful states are able shape the order and content of legal norms through economic and military force. Because “coercion-is at the heart of the commodity form"[41] and international law mediates commodity exchange, violence is central to it – ‘Between Equal Rights, force decides’.

The commodity form theory as explained by Miéville illustrates precisely how international law not only bore a structural relationship to capitalist accumulation through the commodification of social relationships, but also sustained imperial relations of domination. The very legal form of international law based on “juridical equality” makes violence and coercion in the hands of the ruling classes the chief means of law making and resolution of legal disputes. To suggest then that international law furthers a rules based order and is counterpoised to power and brute force is misleading. Instead, as Miéville poignantly put it, “The chaotic and bloody world around us is the rule of law".[42]

The Commodity Form theory of Pashukanis has found tremendous purchase in Marxist international legal scholarship, even beyond Miéville’s path-breaking reconstruction. The biggest reason for this is that it provides a singularly persuasive historical account of why and how ‘law’ developed the way it did and what makes legal relations the perfect infrastructure for capitalism’s expansion. Claire Cutler has applied the commodity form theory to illustrate the nature of the WTO and GATS in the commodification of public commons,[43] while Grietje Baars reflects on the nature of law as a ‘congealing’ devise for capitalist relations. Her works also centers the role of ‘corporation’ as a tool for imperialist expansion.[44]

5. International Law as EmancipationEdit

And yet, China Miéville’s conclusion that there can be no international law without imperialism and that only through “eradicate[ing] the forms of law” altogether can one even think of emancipation left an enduring mark on Marxist international legal scholarship.[45] Hegemonic quarters within the discipline started to associate the general project of Marxism in international law with legal nihilism, ignoring how Marxist legal scholars themselves have mounted the loudest critique to Miéville. This was accompanied with a certain strand of Marxist scholarship which saw a fundamental incompatibility between Marxism and the support for human rights.[46] Law and international law in this constellation was essentially part of the problem and not the solution to human freedom.

Crucially, these interventions ignored the centrality of capitalism as an inherently conflictual and contradictory system. For Marx, legal struggles and the pursuit of human rights although conditioned by capitalist relations did not mean that they ought to be repudiated. Indeed, Marx expended considerable attention to the law as a means of working class struggle in his elaborate description on the length of the working day, which was won on a legal terrain.[47] Law was important in providing the oppressed classes with the means to push back against capitalist expansion. Similarly, in his work ‘On the Jewish Question’, which is often cited to bring home the point that Marx was disillusioned with the potential of equal rights, Marx had only advanced a limited critique of formal legal quality. For him, political emancipation through law and legal rights was deeply ‘individualizing’ and ‘alienating’ and thus cannot be an end in itself, but only a means towards engendering larger social changes beyond what the law could provide.

Law and the legal form therefore in the Marxist tradition exhibits a dual character which even while constraining the possibility of deep structural transformation provides an important, albeit limited, form of social emancipation through concrete legal struggles. These legal struggles then, must go hand in hand with more demanding political interventions. It is not a choice between ‘Reform’ or Revolution’ but about how these two paths can have always co-existed. Understanding the role of law in the reproduction of capitalist relations and also as a means to resist some of its worst excesses alludes to its ‘relative autonomy’. Both Chimni and Susan Marks thus hold on to the possibility of international law acting as a ‘shield’ against powerful states. Chimni argues for a ‘radicalism with rules’ where international law should be viewed as a site of contestation rather a mere reflection or consolidation of the interests of dominant classes. Bill Bowring goes one step further in situating human rights and international law’s relationship to past revolutions as evidence of the emancipatory role that law can play.[48]

Rob Knox provides a useful lens to navigate through this duality of rejection and embrace of international law. Given that the use of legal means comes with the danger of legitimizing the existing order of social relations, law should only be used for short-term tactical purposes, as a “mere tool to be discarded when not useful."[49] Knox terms this engagement with the law as “principled opportunism” to put forth the point that international law should be pursued for progressive purposes not because it is ‘law’ but because it aids a larger political commitment to fundamentally transform existing society. This would eventually provide the path for what Marina Veličković calls as the “planned obsolescence of international law” i.e, the law’s gradual disappearance altogether.[50] But before that happens, the task of radical critique and practise through international law must continue, even when we realize that any utopian hopes of wholesale transformation is ultimately constrained by the legal form.

D. Blindspots, Exclusions and Absences in Marxist Legal ScholarshipEdit

Despite the growing cohort of scholars who are writing within the Marxist tradition in international law and sharpening its conceptual tools, the general project of Marxism has been unable to fully shed its blinkers and unwilling sometimes to reorient its own constitutive categories in the light of other modes of struggles that cut across various axis of social divisions. The project of building solidarity across different resistance movements have not always been forthcoming.

This is perhaps most visible in the way Marxist legal scholars have privileged the category of ‘class’ as the most important marker of social division, ignoring how race, gender, sexuality and caste play an equally important role in the chain of production, distribution and thus also exploitation. Marxism has maintained a distance with other critical tradition such as TWAIL, CLS, critical race theory and also feminist approaches to international law in its singular focus that material conditions are unrelated to how cultural or gender stratifications co-constitute the capitalist mode of production.[51] Despite its emphasis on the totality of social relations, Marxist scholars have themselves advanced an understanding of individuals abstracted from deep structural and social markers of community. As Knox points out, within the Marxist discourse, race and racism “tend to be understood as counterposed to processes of capitalist accumulation".[52] No wonder that these exclusions are reflected in some of the ‘mainstream’ iterations of Marxist legal scholarship (including this one) which are produced by men, with a relative absence of women, trans or even black writings on the subject.

Equally, this dissonance is sustained by critical scholars in other traditions who mechanically associate the writings of Marx and the Marxist project with that of structural determinism and Eurocentrism. In some influential quarters of TWAIL for instance, Marx is portrayed to be “irrelevant” to Third World decolonial struggles.[53] These musings of course, overlook not just the fact that Marx himself was alive to the conditions of colonialism and expropriation of native peoples as central to Western capitalist expansion, but also generations of Third World Marxist scholars and anti-colonial movements which applied, modified and even ‘stretched’ Marxist theory to local conditions and experiences of domination and imperialist expansion.[54] For the latter, reading Marx has always been about how under conditions of capitalist accumulation, racialization, gender and caste based stratifications are crucial determinants of what constitutes the material conditions of life.

In contemporary times however, many Marxists and equal number of TWAILers, feminist theorists and critical race scholars have moved beyond traditional class variants of historical materialism to underscore the multifaceted nature of capitalist oppression which straddles through race, patriarchy and culture. For instance, Rob Knox’s recent scholarship has highlighted the concepts of ‘value’ and ‘race’ are but two side of the same coin and that any materialist mode of analysis needs to consider them together.[55] Similarly, Chimni’s “Integrated” Marxist analysis supplements issues of class with that of social feminist and post-colonial theory has been received approvingly both within the TWAIL and Marxist community.[56] Ntina Tzouvala in her materialist history of the concept of ‘civilization’ addresses how a particular conception of race, gender and sexuality operated as tropes for European international lawyers to infantilize, racialize and feminize non-Western communities while laying the groundwork for capitalist expansion.[57] Her work is also instrumental in bringing together insights from ‘indeterminacy’ in the CLS tradition within a Marxist framework of capitalism and its contradictions. Ruth Fletcher’s work is equally inspiring in thinking through Pashukanis’s commodity form theory from a feminist perspective to foreground the role of social reproduction within notions of value in commodity exchange.[58] These and many other voices have in some sense made Marxist analysis of law and international law respond to and reflect on the many dimensions of social relationships that continue to change, evolve and transform under the conditions of global capitalist accumulation.[59] Here the emphasis is not that 'class' analysis ought to be displaced, but that "class realizes itself and becomes embodied through gender, race, sexuality...".[60] This is the direction that future Marxist international legal scholarship must embrace.

Further ReadingsEdit

  • Source I
  • Source II

Table of ContentsEdit

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Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

FootnotesEdit

  1. Robert Knox, 'Marxist Approaches to International Law' in Anne Orford, Florian Hoffmann and Martin Clark (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press 2016) 307.
  2. Shortly before his dealth, Marx had written to Guesde and Paul Lafargue stating that “what is certain is that I myself am not a Marxist”. See https://www.marxists.org/archive/marx/works/1880/05/parti-ouvrier.htm#n5
  3. Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (OUP 2016) 84.
  4. Karl Marx, ‘The Eighteenth Brumaire of Louis Bonaparte’ (1852). Available at https://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm
  5. As Marx had famously remarked, “philosophers have only interpreted the world, in various ways; the point, however, is to change it”. Karl Marx, ‘Theses on Feuerbach’ (1845). Available at https://www.marxists.org/archive/marx/works/1845/theses/theses.htm
  6. B. S. Chimni ‘An Outline of a Marxist Course on Public International Law’ (2004) 17 Leiden Journal of International Law 1, 4.
  7. Karl Marx, ‘Preface to a Contribution to the Critique of Political Economy’ (1859). Available at https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm
  8. Karl Marx, Capital: A Critique of Political Economy, vol 1, ‘Chapter Twenty-Six: The Secret of Primitive Accumulation’ (1867). Available at https://www.marxists.org/archive/marx/works/1867-c1/ch26.htm
  9. Karl Marx, Capital: A Critique of Political Economy, vol 1, ‘Chapter Thirty-One: Genesis of the Industrial Capitalist’ (1867). Available at https://www.marxists.org/archive/marx/works/1867-c1/ch31.htm
  10. Karl Marx and Friedrich Engels, ‘Manifesto of the Communist Party’ (1848). Available at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm 
  11. Rosa Luxemburg, The Accumulation of Capital, ‘Chapter 27: The Struggle Against Natural Economy’ (1913). Available at https://www.marxists.org/archive/luxemburg/1913/accumulation-capital/ch27.htm
  12. Ibid.
  13. Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (CUP 2020).
  14. Ibid.
  15. B.S Chimni, International Law and World Order: A Critique of Contemporary Approaches (CUP, 2017), 496.
  16. Kwame Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (Thomas Nelson & Sons, 1965) x.
  17. David Harvey, The New Imperialism, ‘Chapter 4: Accumulation by Dispossession’ (OUP 2003).
  18. Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (CUP 2013). 
  19. Karl Marx and Friedrich Engels, ‘Manifesto of the Communist Party’: Chapter I – Bourgeois and Proletarians (1848). Available at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm
  20. Karl Marx and Friedrich Engels, ‘Manifesto of the Communist Party’: Chapter I – Bourgeois and Proletarians (1848). Available at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm
  21. Bill Bowring, ‘Marxist International Law Methodology?’ (2020). Available at SSRN: https://ssrn.com/abstract=3634784.
  22. B.S Chimni (...)
  23. Akbar Rasulov, ‘The Nameless Rapture of the Struggle': Towards a Marxist Class-Theoretic Approach to International Law’ (2008) 19 Finnish Yearbook of International Law. Also available at SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2264220 ; B.S Chimni, ‘Prolegomena to a Class Approach to International Law’ (2010) 21 (1) European Journal Of International Law 57-82. Available at https://academic.oup.com/ejil/article/21/1/57/363326
  24. B.S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15 (1) European Journal of International Law 1-37, 9.
  25. Mai Taha, ‘Reading ‘Class’ in International Law: The Labor Question in Interwar Egypt’ (2016) 25 (2) Social & Legal Studies 567–589.
  26. B.S. Chimni, ‘An Outline of a Marxist Course on Public International Law’ (2004) 17 (1) Leiden Journal of International Law 1-30. Available at https://www.cambridge.org/core/journals/leiden-journal-of-international-law/article/an-outline-of-a-marxist-course-on-public-international-law/CF4FA3AEA7E61BF3FA82D4F590B8126A  
  27. An important work here is by Claire Cutler in analysing the rise of transnational finance class. Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (CUP 2003).
  28. Karl Marx, ‘Preface to a Contribution to the Critique of Political Economy’ (1859). Available at https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface.htm
  29. Susan Marks (eds.), International Law on the Left: Re-examining Marxist Legacies (CUP 2008) 292; See also the work of Claire Cutler, who uses the concept of 'hegemony' drawn from Italian Marxist Antonio Gramsci to argue that law helps in projecting private interests as societal ones. Claire Cutler, 'Gramsci, Law, and the Culture of Global Capitalism' (2005) 8 (4) Critical Review of International Social and Political Philosophy 527–542.
  30. See for instance, Hilary Charlesworth, ‘Feminist Reflections on the Responsibility to Protect’ (2010) 2 (3) Global Responsibility to Protect 232-249.
  31. Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (CUP 2011).
  32. Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (OUP 2003). 
  33. Susan Marks, ‘False Contingency’ (2009) 62 (1) Current Legal Problems 1-21, 10.
  34. China Miéville, ‘The Commodity-form Theory of International Law’ in Susan Marks (eds), International Law on the Left: Re-examining Marxist Legacies (CUP 2008) 107.
  35. Karl Marx, Capital Vol I: ‘Part I: Commodities and Money – Chapter One: Commodities’ (1867).
  36. Evgeny Pashukanis, The General Theory of Law and Marxism, Chapter IV: Commodity and the Subject (1924). Available at https://www.marxists.org/archive/pashukanis/1924/law/ch04.htm
  37. Evgeny Pashukanis, ‘International Law’ (1925). Available at https://www.marxists.org/archive/pashukanis/1925/xx/intlaw.htm
  38. Ibid.
  39. China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill 2005).
  40. Taken from Marina Velickovic’s extremely lucid way of expanding Pashukanis. See Marina Velickovic, ‘A Marxist Account of the Individual in International Law’ (Draft presented for the conference on ‘Individual in International Law, Heidelberg 2021). On file with the author. 
  41. China Miéville, Between Equal Rights, Supra Note 39, 126.
  42. Ibid 319.
  43. Claire Cutler, 'Toward a Radical Political Economy Critique of Transnational Economic Law' in Susan Marks (eds) International Law on the Left: Re-examining Marxist Legacies (CUP 2008).
  44. Grietje Baars, The Corporation, Law, and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (Haymarket Books 2020).
  45. Ibid 318.
  46. This strand of scholarship drew largely on Marx’s writing ‘On the Jewish Question’.
  47. For a good description see Igor Shoikhedbrod, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights (Palgrave 2019). 
  48. Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge 2008). 
  49. Robert Knox, ‘Marxism, International Law, and Political Strategy’ (2009) 22 Leiden Journal of International Law 413-436, 433.
  50. Marina Veličković, ‘Planned Obsolescence of International Law: On Contingency and Utopian Possibilities’ Völkerrechtsblog, 17.06.2021. Available at https://voelkerrechtsblog.org/de/planned-obsolescence-of-international-law/
  51. Akbar Rasulov, ‘CLS and Marxism: A History of an Affair’ (2014) 5 (4) Transnational Legal Theory 622-639.
  52. Robert Knox, 'Valuing race? Stretched Marxism and the Logic of Imperialism' (2016) 4 London Review of International Law 81, 100.
  53. Mohsen al Attar, ‘Teaching Karl Marx about Third World Approaches to International Law’ (OpinioJuris Blog 07.02.22). Available at https://opiniojuris.org/2022/02/07/teaching-karl-marx-about-third-world-approaches-to-international-law/
  54. Robert Knox, 'Valuing race? Stretched Marxism and the Logic of Imperialism' (2016) 4 London Review of International Law 81; Umut Özsu, ‘Determining New Selves: Mohammed Bedjaoui on Algeria, Western Sahara, and Post-Classical International Law’ in Jochen von Bernstorff and Philipp Dann, eds., The Battle for International Law: South-North Perspectives on the Decolonization Era (OUP 2019) 341–57. Noura Erakar & John Reylonds, ‘We Charge Apartheid? Palestine and the International Criminal Court’ (2021) TWAILR Refelctions 33. Available at https://twailr.com/we-charge-apartheid-palestine-and-the-international-criminal-court/.
  55. Robert Knox, 'Valuing race? Stretched Marxism and the Logic of Imperialism' (2016) 4 London Review of International Law 81; Rober Knox, ‘Subject Positions’ (TWAILR Reflections, Symposium on Theorizing While Black 2021), Available at https://twailr.com/subject-positions/.
  56. B.S Chimni, International Law and World Order: A Critique of Contemporary Approaches (CUP, 2017) 440-550.
  57. Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (CUP 2020); James Thuo Gathii, ‘Imperialism, Colonialism, and International Law’ (2007) 54 (4) Buffalo Law Review 1013, available at https://digitalcommons.law.buffalo.edu/buffalolawreview/vol54/iss4/2/
  58. Ruth Fletcher, ‘Legal Form, Commodities and Re-production: Reading Pashukanis’ (2013) Queen Mary School of Law Legal Studies Research Paper No. 158, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2359140
  59. For a very helpful summary of Marxist work in international law see Robert Knox, ‘Marxist Approaches to International Law Bibliography’ (2018) Oxford Bibliographies. Available at https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0163.xml.
  60. Susan Marks (eds.), International Law on the Left: Re-examining Marxist Legacies (CUP 2008) 5.