This post kicks off SAQ week, celebrating a special issue of the Southern Atlantic Quarterly on Law and the Critique of Capitalism.
Political alliances and intellectual movements are not for the faint-hearted. They require copious amounts of organising work, recruitment strategies, and the precarious exercise of building a broad church that nevertheless gravitates toward one’s preferred reading of the scriptures. To stay with the metaphor, it requires (re)inventing canons and traditions in order to fight new battles. For a variety of material and ideological reasons, left-wing law academics are not very good political organisers and the shadows of past defeats linger heavily upon us.
All this is to say: curated by the seemingly indefatigable Corinne Blalock, the South Atlantic Quarterly special issue on Law and the Critique of Capitalism offers one vision for the new and rapidly expanding law and political economy movement. It is not a snapshot of a field as it is, but rather a suggestion of what it could become. In my view, this is an appealing vision for at least four reasons: first, it centres the critique of capitalism, rather than of (neo)liberalism, as much of left legal scholarship has done in the past forty years. This seems significant in an era when non-liberal and non-neoliberal forms of capitalism are on the rise globally. It also has the advantage that the critique is not confined to the justifications and self-mythologisation of law and lawyers. Rather, it understands the regularities of social life and the role of law in constructing those regularities not only as a legitimate but as a necessary object of scholarly inquiry.
Second, this materialist (but not necessarily only Marxist) orientation is linked with a conviction that the success of an intellectual effort does not exclusively depend on academic conditions of knowledge reproduction nor should it be solely be judged against it. Rather, a desire to forge alliances with radical movements (in the general absence of radical political parties) is ever-present, setting this movement apart from some of its intellectual predecessors.
Thirdly, this version of LPE understands race, gender, and sexuality as internal to its critique of capitalism and, therefore, to its critique of law. In this respect, these concerns appear not as identities that can be captured and protected fully by, say, anti-discrimination laws, but as relations of subordination and exploitation that are contingent to different social formations, as much as they are global in their reach. This brings me to the fourth element, which is a desire to understand law and capitalism beyond domestic law in general and US law in particular. On this account, imperialism is central to both law and capitalism, and thus any aspiration to pursue equality and freedom within the boundaries of the US (or the US, Europe and a handful of other white-majority settler colonies) is fundamentally misguided.
This is where my own contribution comes into the picture. Entitled ‘International Law and (the Critique of) Political Economy,’ my article tries to do two things at the same time: first, I attempt to offer a snapshot of political economy debates for a predominantly US and domestic law audience, and secondly, I articulate a defence of Marxism as the most fruitful approach to law and political economy on account of its being not a theory of political economy as such but a critique of the endeavour as a whole. This duality is animated by a seeming paradox: international law has a thriving critical scene, arguably bigger and more institutionally established than any other field. This is especially the case in English-speaking law schools beyond the US, where international law is often a compulsory or very popular elective course. At the same time, political economy has been an unstable point of focus for critical international lawyers. Even as feminist scholars have identified the masculinist biases of the discipline, queer theorists have discussed extensively its heteronormativity, TWAIL disciples have dissected its intersections with imperialism, and ‘classical’ crits have identified its endless indeterminacies, few of these critiques have focused on political economy in a systematic manner.
As others have noted, this is because the construction of these critical fields as broad churches has been accomplished through overly open-ended understandings of core concepts, notably that of imperialism. This lack of theoretical precision has been an important tool of coalition-building, but it has also left these movements open to the influence of dominant ideology: open, physical violence becomes synonymous with domination, critique necessarily hinges on ill-defined notions of in/justice, and the realities of post-colonial sovereignty or of the rise of women within the structures of global governance become difficult to theorise and to square with the presumed persistence of imperialism or heterosexism. TWAIL and feminist approaches have dealt with this impasse in different ways (the former pivoting to history and the latter to policy), but they face a shared difficulty in their murky and unstable relationship with political economy.
I am not, however, primarily concerned with diagnosing the weaknesses the fellow travellers. Rather, I posit that this inconsistent focus on political economy is due, in part, to the uniquely messy and syncretic forms that hegemonic political economic ideology has assumed in international law. Otherwise put, heterodox international lawyers could not possibly organise against our dominant foe in the ways that LPE hopes to do in the US in regards to ‘law and economics.’ The justifications of the status quo in the international domains did not coalesce into anything akin to a ‘21st-century synthesis’ but rather have existed in parallel, overlapping, and often conflicting forms.
Using the example of international investment law, I show that both scholars and practitioners have adopted a wide variety of justifications for the field, ranging from ordo-liberal defences of ordered market freedom to neoclassical invocations of efficiency to accusations of Nazism against those resisting the contemporary configuration of the field. The absence of a highly systematised ideological orientation thus seems endemic to international law, which should not come as a surprise if we consider its decentralised nature. In practice, though, the malleability of hegemonic approaches means that critics are shooting against a moving target. In addition, the national educational background of international lawyers means that we are ill-equipped to identify and effectively critique hegemonic legal constructions that are unfamiliar to us. My willingness to read patiently and engage seriously with Hayek, but not with Posner, does not speak to quality of argument or to (dis)agreement, but rather to familiarity of argumentative form and aesthetics. I believe that I am not alone in this partiality. As a result, the absence of a clear and stable synthesis, although unintentional, leads to a strengthening of the economic mainstream within the field.
Having opened this short piece with a discussion of the political work of intellectual movement-building, I cannot plausibly now argue that my own piece is purely diagnostic. Rather, this picture of fragmentation and instability is invoked in order to explain my own intellectual and political commitment to Marxism as the most useful set of intellectual tools for approaching law in particular and social formations in general. It is a unique intellectual and political advantage of Marxism that it allows us to think about social totality and (structured) causation in ways that ultimately make an effective critique of law as a political economic force possible. For if determinism requires an optimism hard to sustain today, determination in the final analysis remains an indispensable concept.
In particular, it allows us to broaden our engagements with law beyond the politically forceful but intellectually limiting point that law is a force that distributes resources, entitlements and risk between groups (say, classes) and individuals. Marxism insists that the way that we produce and exchange the goods and services that we need structures our lifeworlds as a whole, a perspective that significantly expands the scope of a critique of law and capitalism. For example, it is urgent and essential to show in detail how a variety of domestic and international laws relating to national security and war are part of a broader ecosystem that enabled the explosion of the military-industrial complex, allowed certain factions of capital to profit at higher rates than others, and contributed of the formation and enrichment of particular intellectual classes linked to national security.
At the same time, this approach runs the risk of over-estimating the influence of law on the processes of accumulation, class-formation, and economic distribution, while also reducing law to its effects and ignoring its form. The image of law that emerges if we undertake this exercise is one of instrumentalism coupled with implausible legal determinism. Yet Marxism’s emphasis on forms and, in particular, on how forms emerging from the processes of production and distribution spread across all areas of social existence, enables us to recognize that the rise of ‘risk management,’ ‘preemption,’ and ‘uncertainty’ within the relevant legal fields reflects, in however a mediated way, broader shifts associated with the transition from industrial to financial capitalism.
A detailed examination of this example is not my intention here. Rather, I would like to conclude by returning to the question of political alliances and intellectual movement building. Leftist engagements with law and political economy can only ever be a broad tent, especially in the context of the rise of the global far-right. Both Marxist and non-Marxist wings of the project are tasked with crafting a relationship that is more co-operative and less antagonistic than the (failed) efforts of the 20th century. Perhaps paradoxically, my explicit defense of Marxism in this short piece intends to draw clear lines as much as it intends to setting the terms of transcending them to forge a victorious left legal alliance for the 21st century.