International Law and Class Dynamics
On Marx, Marxism, and International Law: An Interview with Umut Özsu, Part II
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. Read Part I here.
In your handbook, the Marxian notion of ‘class struggle’ is omnipresent. What role does law play in this struggle? Is it merely a superstructure of the capitalist system, merely a continuation of politics by other means? Or is it itself a tool in this struggle for law?
Class and class struggle are integral to Marx’s work, as they are to all forms of critique and analysis that warrant characterization as ‘Marxist’. But these concepts receive somewhat different glosses, and are put to different kinds of use, in the writings of Marx (and Engels). They are also understood differently by different Marxists. As a result, it is not possible for me to provide a general, catch-all definition of ‘class’ or ‘class struggle’ here. Nor is it possible to set out law’s relation to class struggle to the satisfaction of all Marxists.
That said, certain things are clear. Despite over a century of claims to the contrary, including many from Marxists, neither Marx nor Engels were deeply committed to the much-discussed ‘base/superstructure model’. The language of ‘base’ and ‘superstructure’ surfaces at a number of points in their work, the best-known being the preface to Marx’s 1859 tract ‘A Contribution to the Critique of Political Economy’ and a footnote in the discussion of ‘commodity fetishism’ in chapter one of the first volume of Capital.
The language is metaphorical, Marx relied upon it only sparingly, and Engels expressly disavowed interpretations of the metaphor that presented the ‘base’ as the sole determining factor of history. An 1890 letter from Engels is particularly instructive in this regard, and also noted by B.S. Chimni. It is worth quoting from here:
According to the materialist conception of history, the ultimately determining element in history is the production and reproduction of real life. Other than this neither Marx nor I have ever asserted. Hence if somebody twists this into saying that the economic element is the only determining one, he transforms that proposition into a meaningless, abstract, senseless phrase. The economic situation is the basis, but the various elements of the superstructure—political forms of the class struggle and its results, to wit: constitutions established by the victorious class after a successful battle, etc., juridical forms, and even the reflexes of all these actual struggles in the brains of the participants, political, juristic, philosophical theories, religious views and their further development into systems of dogmas—also exercise their influence upon the course of the historical struggles and in many cases preponderate in determining their form.
This is no passing observation or after-the-fact apology. Marx’s famous discussion of the class struggle over the length of the working day in chapter ten of the first volume of Capital adopts a similar position with respect to law. Specifically, it demonstrates both that (a) the struggle waged by the increasingly organized working classes of mid-nineteenth-century Britain led to stronger labour rights and improved working conditions, and that (b) these rights and conditions helped to ensure the continued reproduction of the capital-relation, i.e. the relation between those who absorb surplus labour in order to appropriate surplus value (capitalists) and those who produce surplus value after being forced to sell their labour-power (workers). Far from being relegated to an epiphenomenal sphere of merely derivative structures, Marx and Engels therefore accord law a significant degree of constitutive power in regard to the production and reproduction of capitalist social relations. This means that the juridico-political order encodes and formalizes the limited victories won by the working classes, and that the resulting rights should not be dismissed out of hand. It also means, though, that law is integral to the operation, legitimation, and conservation of capitalist societies and states alike—in other words, that law is, as the conventional ‘critical legal studies’ lingo has it, ‘part of the problem’. It is worth noting that a large number of otherwise divergent Marxists—from E. P. Thompson to Nicos Poulantzas to David Harvey—subscribe to this dialectical view of law, though it barely needs to be mentioned that not everyone agrees.
Your own work on Marxism is also strongly anchored in international law and its history. What is the attraction for you of drawing on Marxist thinking here?
This question is easy to answer. I am a socialist, more specifically a Marxist. This has been my basic political orientation for a very long time. In that sense, ‘being a Marxist about international law’ is just an outgrowth of being a Marxist plain and simple. Of course, there are many Marxisms. There are also many kinds of international law. Speaking, as we all tend to do, of ‘international law’ in the abstract, as a singular noun with a more or less self-evident meaning, is to flatten and homogenize a complex set of social and disciplinary fields. But if you are trying to understand the way that a given set of legal rules emerged and developed over time, examining the (domestic and transnational) class dynamics through which some but not all ideas come to acquire the status of a ‘legal rule’ is unavoidable. Take the legal rules on compensation for nationalization of foreign-held assets. If you want to explain struggles between capital-exporting and capital-importing states in regard to compensation for expropriated property, you ultimately cannot avoid considering the role of national and comprador bourgeoisies in ‘developing’ countries, many recently liberated from formal colonial rule, not to mention competing groups of capitalists in the North Atlantic and beyond. And if you want to provide a convincing explanation of these class forces, you cannot do so in a purely ‘local’ way, or through political, social, or cultural histories alone; you ultimately need a broader account of the worldwide system of generating, appropriating, and accumulating surplus value that underpins it all. More generally, if you want to understand history, the history of international law included, you need to understand the class relations that motor social transformations over time.
In a 1999 essay, B.S. Chimni wrote that ‘[w]ith capitalism entering the phase of globalisation international law is playing a role akin to the one which internal law performed in the early stages of capitalism in removing local impediments to the process of accumulation.’ Looking at your work on land-grabbing, for example, would you say that Chimni’s findings have been confirmed over the last 30 years? Or do you see alternative trends?
I am in agreement with the spirit of Chimni’s statement here. However, I would make the point in slightly different terms.
First, ‘globalization’ has never been an exclusively late twentieth-century phenomenon. The term is typically used in connection with increased levels of trade, migration, and communication after the dissolution of the Soviet Union, the demise of other ‘actually existing socialisms’ in central and eastern Europe, and the politico-economic ascent of China and other ‘BRICS’-style states. These new circuits of exchange and interaction—of goods, services, people, and capital, the European Union’s ‘four freedoms’, but also of much else, including information—involve states, corporations, peoples, individuals, and a host of other ‘actors’. That said, economic historians, political sociologists, and even some legal scholars (on Duncan Kennedy’s periodization, a well-known example, see here) have been writing about different cycles of ‘globalization’ for years. From an historical standpoint, the rapid internationalization of capital from the 1970s onwards, particularly after 1991, was but one in a long series of waves of expansion and incorporation in the capitalist world-system. This is one of the reasons I personally have always found the term ‘globalization’, at least in the way it is usually used, to be unhelpful and potentially misleading.
Second, Marx’s critical discussion of ‘primitive accumulation’ in part eight of the first volume of Capital is especially useful for understanding what Chimni is talking about here—far more helpful, in my view, than the rather nebulous term ‘globalization’. If ‘primitive accumulation’ (a concept Marx borrowed from Adam Smith and which is more accurately rendered ‘original accumulation’) is not only an historical process of dispossession and proletarianization that culminated at a particular point in the past (a traditionally influential interpretation) but an analytical framework that explains the ongoing process whereby capitalist social relations gradually absorb pre- or non-capitalist social relations (an interpretation popularized by Rosa Luxemburg), then it is not hard to see how both domestic and international law ensure capital accumulation and the reproduction of the social conditions that make it possible and necessary. Just as domestic law has engendered acts of enclosure and expropriation which have deprived peasants of their means of subsistence and corralled them into centres of industry (first in Britain and then elsewhere, on Marx’s account), so too has international law played a key role in integrating ever larger portions of humanity into a capitalist order organized around the production of surplus value by the many and its accumulation and reinvestment by the few. In my own view, recent forms of ‘land-grabbing’, mainly though not exclusively in the so-called ‘global South’, showcase how both domestic and international law help to structure these processes.