Revolutions Are Not Made by Laws

In the face of massive crises and revealed ambiguities of the liberal international order, Marxist thought has experienced a significant revival in recent years—also in (international) legal thought. But what does it actually mean to look at (international) law from a Marxist perspective? And what role did law play for Marx? To find out, we talked to Umut Özsu about Marx, Marxism, and international law.

Dear Umut, while the so-called ‘liberal world order’ is in crisis, as some commentators say, there is at the same time a renewed interest in Marxism. How are these two phenomena related in your view?

Widespread claims to the contrary, there was—and still is—something along the lines of what many have termed a ‘liberal world order’. Historians, economists, sociologists, legal scholars, and many others—including many outside academia’s not-so-hallowed halls—have long studied the emergence, consolidation, and transformation of this system of organizing economic, political, and legal relations between and within states. The record is complex, not least since liberalism is itself an essentially contested concept, but a key precedent is nineteenth-century British imperialism, both formal and informal (as in ‘free trade imperialism’). This was an enterprise formalized in the gold standard, underwritten by the City of London, premised on the elimination or assimilation of Indigenous peoples, bankrolled by rampant exploitation of India and China (in the latter case partly through narco-trafficking backed by military force, as in the Opium Wars), channeled into large-scale investment projects such as railroad construction (particularly in the United States, continental Europe, Latin America, and British holdings like Australia, Canada, and India), and reinforced by the Concert of Europe’s equilibration of power on the continent for much of the long nineteenth century.

The Victorian-era international lawyers about whom Martti Koskenniemi wrote in The Gentle Civilizer of Nations were the champions and critics of this species of liberal internationalism, which yielded peace and growth in Europe and war, plunder, and starvation in Asia, Africa, and beyond. By no means did all such lawyers speak the language of internationalized legalism with an English accent. But they all inhabited a world organized around the imperatives of a London-centred liberalism that just so happened to enrich white Europeans and European settlers at the expense of most others on the planet.

Nowadays, of course, expressions like ‘liberal internationalism’ and ‘liberal world order’ are generally used in connection with the project of securing peace through law after the Second World War. This was an endeavour that aimed to reorder international relations with the now rotting buffet of UN bodies, Bretton Woods institutions, war crimes trials, ‘free trade’ and economic development, and multilateral treaties on human rights, international refugee law, and international humanitarian law. Call it ‘late capitalism’ or ‘embedded liberalism’. Or call it the trente glorieuses, in the case of the first few decades after 1945, or the ‘long 1970s’, as I and many others do in connection with the later push by ‘new states’ to reconfigure the world economy and reduce their dependence on ‘great powers’ and former colonial masters. Whatever your specific focus or preferred analytical framework, it is clear that the second half of the twentieth century witnessed the construction and institutionalization of a distinct system of organizing economic, political, and legal relations on the international plane, that this system was expanded and recalibrated significantly after the formal end of the Cold War, and that many of the structures constructed for this purpose remain in place today. Even in the face of increased ‘multipolarity’, a bankrupt Security Council and sputtering World Trade Organization, the spectacular growth of China and its quasi-imperial ‘belt and road initiative’, Russian irredentism and rising ultra-nationalism in large powers like India, there is indeed a ‘liberal world order’. It is just more brittle than before, its legitimacy eroded by its sclerotic performance of late.

Since Marxism explains crises and contradictions over historical time, it comes as no surprise that Marx and Marxism should have experienced significant renewed interest in recent years. I would simply add that plenty of Marxists have always been on hand to study and intervene in these developments. From philosophers like Angela Davis, Raya Dunayevskaya, and Silvia Federici to political economists like Samir Amin, Maurice Dobb, and Ernest Mandel, Marxist critical tools have always been brought to bear on the conditions of capitalist production and exchange that lie at the foundations of the ‘liberal world order’. So long as capitalism continues to ply its trade (and liberalism is, of course, first and foremost an ideology of capitalism), Marxism will be on hand to showcase the destruction it leaves in its wake, pressing us all to forge a new, post-capitalist world.

Evidence of the renewed interest in Marxism – also among lawyers – is the voluminous Research Handbook on Law and Marxism that Paul O’Connell and you have just edited. Now, a rather obvious objection to your undertaking might be that Marx was not a lawyer (even though he first began studying law in Trier) – and that, moreover, he did not present a unified theory of the state. What would you reply to these objections?

It is indeed generally forgotten that Marx studied law (and that his father was a progressive lawyer in Trier and encouraged him to pursue a legal career). This is an important point of biographical interest (examined revealingly in the first volume of Michael Heinrich’s new biography). But it is largely irrelevant to the question of whether and how Marx engaged with questions of law, rights, and the state. Boasting a law degree or maintaining a legal practice is by no means a prerequisite for having sophisticated views on these questions. ‘Being a lawyer’, whatever exactly that might entail in a given context, can even be a serious impediment to thinking rigorously about law as a social form possessed of a distinct kind of social power and authority.

As it happens, Paul and I address precisely this question in our (intentionally brief) introduction to the handbook. Here is what we wrote there:

It is often said that Marx never developed an integrated theory of the state, and that his observations about law and rights are fragmentary and scattered across a large number of writings. Such assessments are not unjustified; Marx’s work, published and unpublished, offers no general theory of these topics on par with his critique of classical political economy. Yet Marx engaged closely with questions of law, rights, and the state, and he did so frequently, intensively, and with remarkable acuity. From a range of texts, many of which are discussed in this handbook, one need only consider Marx’s early critique of Hegel’s philosophy of law; his argument about the fundamental insufficiency of civil and political rights in ‘On the Jewish Question’; his spirited interventions in German debates about the customary rights of peasants to forage for wood; his incisive class analysis of capitalist states and constitutional orders in ‘The Eighteenth Brumaire of Louis Bonaparte’ and ‘The Civil War in France’; his lengthy and nuanced discussion of the Factory Acts in mid-nineteenth century Britain in chapters ten and fifteen of the first volume of Capital; the central role of law in the account of ‘primitive accumulation’ and colonial capitalism he provides in this same book’s eighth and final part; and his trenchant critique of ‘fair distribution’ and social-democratic electoral strategy in ‘The Critique of the Gotha Programme’. Countless attempts have been made to develop specifically Marxist accounts of law on the basis of these and other textual sources, from Evgeny Pashukanis’ ‘commodity-form theory’ to debates about the ‘relative autonomy’ of law to qualified defence of certain aspects of the liberal legal tradition. Such approaches continue to influence a large number of contemporary debates on Marxist approaches to law, rights, and the state.

The point here is not that Marx set out to provide a theory of law as such. That was not the case—though it should be noted that he planned to complete a volume on the state in the long-term project that included Capital alongside other planned works, including books on international trade and the world market. Nor does it mean that Marx was committed to a form of conventional legalism, as though socialist revolution might be achieved solely or even primarily through legal interventions. This was a view that Marx rejected in Capital, where he wrote that ‘revolutions are not made by laws’, and that Engels would later deride as a form of ‘juridical socialism’. Rather, the point is that Marx was deeply concerned with questions of law, that he was similarly concerned with questions of rights and the state, that these concerns surfaced early in his life and continued for the remainder of his days, that he recognized the political usefulness of law to class struggle under many circumstances, and that his published and unpublished writings are replete with (striking but often ignored) claims and arguments about contract, property, criminal, corporate, constitutional, international, and a variety of other forms of law, including in colonial contexts. As Pashukanis and many others have correctly observed (see Matthew Dimick’s chapter), the very terms in which Marx lays out the basic elements of his critique of political economy in the opening chapters of the first volume of Capital—the only volume he saw to publication in his own lifetime—are steeped in proprietary and contractual language. This is not accidental; Marx understood law’s importance for capitalism, and his views on it were complicated.

As some of the contributions to the handbook demonstrate, Marx’s views on these issues are intricate, well-informed, and often remarkably lucid. Daniel McLoughlin and Talina Hürzeler, for instance, perform this work in their chapter on Marx’s argument about Britain’s nineteenth-century Factory Acts. Nimer Sultany does the same for Marx’s engagement with constitutional law and theory, August H. Nimtz for Marx’s thoughts on law, capitalism, and liberal democracy, Cosmin Sebastian Cercel for his approach to various forms of dictatorship, and Bill Bowring for his views on national self-determination.

Read Part II here.