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Chapter15

MARXIST APPROACHES
TOINTERNATIONALLAW
RobertKnox

1 Introduction
Attempting to describe the definitive Marxist approach to anything is difficult. The Marxist tradition is a fractious one, filled with splits, disagreements, and
denunciations. Frequently the subject of these disagreements is whether the opposing sides position is even Marxist. This fractiousness is due in no small part to
the fact that Marxist theory is never simply theory, but instead is conceived of as a
guide to action.
Whilst this is equally true of Marxist legal theory, there is anotherseemingly
countervailingproblem:the relative lack of attention that Marxists have paid to
law. The writings of Marx and Engels have almost no systematic engagement with
legal questions, instead making only scattered and fragmentary references. This is
even truer of international law, which only crystallized in its modern incarnation
towards the end of their lives. Of course, Marxism is not simply the words of Marx
and Engels, and writers in the Marxist tradition have theorized and analysed law.
Yet compared to studies of political economy, aesthetics, or politics, Marxist studies of law have been relatively rare, and international law even moreso.
Added to this is a final complication. More than any of the other positions surveyed in this Handbook, Marxist international legal theory cannot be considered
as a separate entity from Marxist theoretical (and political) commitments as a

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whole. Whereas being a legal positivist does not necessarily commit one to any
conscious, coherent, or systematic understanding of historical development, or
of the relationship between the economy and society, the same cannot be said of
Marxist theory. Marxist international legal theory cannot be understood simply as
an internal position to the international legal discipline. Rather, it is the disciplinary application of the wider project of Marxism.
As such, Marxist international legal theory can only be understood in relation to
a number of other debates. Particularly important are Marxist debates about the
relationship between the base and superstructure, about the nature and function
of the state, and theories of ideology and hegemony. These debates have primarily
played out in Marxist domestic legal theory. Equally, insofar as we are dealing
with international law, it is vital to understand debates as to the dynamics of international capitalism, conducted under the rubric of imperialism.
This chapter will attempt to chart a course through this complex terrain. It will
begin by tracing the general contours of Marxist theory, and examine Marx and
Engels work. Following this, it will examine Marxist theories of imperialism and
their understanding of international law. It will then look specifically at Marxist
international legal theory, before concluding with some political reflections.

2 Marx andEngels
2.1 Base, Superstructure, and Historical Materialism
As Susan Marks notes, [t]o engage with Marxism is . . . to engage with the idea
that history is to be understood in materialist terms. 1 It is for this reason that
the Marxist method is known as historical materialism. Long and complicated
debates surround the precise nature of historical materialism, but the usual starting point is Marxs Preface to the Critique of Political Economy. There, Marx argued
that legal relations as well as forms of state are to be grasped neither from themselves nor from the . . . general development of the human mind. Instead, they had
their roots in the material conditions of life.2 These relationsin their totality
constitute what are called the social relations, society, and, specifically a society at a

S Marks, Introduction in S Marks (ed), International Law on the Left:Re-Examining Marxist

Legacies (CUP Cambridge 2008) 129,at2.
2
K Marx, Preface to a Contribution to the Critique of Political Economy in RC Tucker (ed), The
Marx-Engels Reader (2nd edn WW Norton and Company NewYork 1978) 36,at4.

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definite stage of historical development.3 It was on the basis of these social relations
that legal, political, and cultural relationsarose:
In the social production of their life, men enter into definite relations that are indispensable and independent of their will . . . The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and
political superstructure and to which correspond definite forms of social consciousness.4

This particular descriptionwhich has come to be known as the base (or basis)
and superstructure metaphorhas been controversial. Nonetheless, it establishes
a basic position for Marxists, who have sought to understand law by seeing it as
determined by social relations of production, and to situate it within the context of
broader political-economic structures.
Marx and Engels argued that the nature of economic relations will naturally vary
according to the character of the means of production.5 Different levels of the development of the productive forces would lead societies to arrive at a definite stage of
historical development.6 Examples of these included ancient society, feudal society,
and bourgeois society. Each of these societies had its own internal economic logic,
conditioning how and why production and consumption took place, and the way in
which it would reproduce itself. These distinctive logics also give rise to specific configurations of the superstructure. Vitally, this did not mean saying that the economic
structure would always be the visible, most important element in any society, but
rather that the economic structure explained why specific social forms (be they
law, politics or religion) played the chief part in particular modes of production.7
Marx and Engels did not simply consider economic structures to be static entities
governed by laws. Since these structures are social relations they are also relationships between groups of people, that is to say between classes. Societies following
the end of primitive communism, have been marked by a division between those
engaged in producing social wealth and those who are able to appropriate it. Thus
(to simplify grossly): in ancient societies there were slaves and slave-owners; in
feudal societies there were peasants, the nascent bourgeoisie, and feudal lords, and
under capitalism there are workers and capitalists. In any given mode of production these classes exist in opposition. They constantly engage in low-level struggles
and sometimes meet in open warfare over the nature of the mode of production.
Hence, Marx and Engels famous dictum that [t]he history of all hitherto existing
society is the history of class struggles.8 It is through the political, cultural, and
legal superstructure that classes become conscious of this conflict and fight itout.9
3

4
Ibid (emphasis in original).
Ibid4.
K Marx, Wage Labour and Capital in The Marx-Engels Reader (n 2)20317, at207.
6
Ibid.
7
K Marx, Capital:ACritique of Political Economy (Penguin Books NewYork 1990 [1867]) at176.
8
K Marx and F Engels, Manifesto of the Communist Party in The Marx-Engels Reader (n 2)
469500, at473.
9
Preface to a Contribution to the Critique of Political (n2)5.
5

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Consequently, there are two avenues through which the economic structure
impacts upon the law. On the one hand, the logic of a given mode of production
will throw up distinctive social arrangements and social forms, of which law is one.
On the other hand, the class struggle will be expressed through, and impact upon,
thelaw.

2.2 The Legal Theory ofMarx andEngels

In The German Ideology Marx and Engels argued that [c]ivil law develops simultaneously with private property . . . out of the disintegration of the natural
community.10 As modes of production based on communal ownership gave way to
individual ownership, it was necessary to regulate such property relations between
individualssuch regulation took the form of law. In ancient and feudal times,
since private property had not extensively developed, neither did thelaw.
With the disintegration of the feudal order, through the rise of industry and
trade, law was able to develop further. Marx and Engels argued that wherever there
was trade the highly developed Roman civil law was immediately adopted.11 It was
only following the revolutions of the bourgeoisie to overthrow the feudal nobility
that the real development of law could occur.12 This development waswith the
exception of Englandachieved through a refinement of the Roman Civil Codex
(to which even England had to turn eventually).
Marx and Engels, then, traced the real development in law to the rise, extension and systematization of private property. However, they were also at pains to
argue that property relations were not a result of law. For them, such a position was
the result of the juridical illusion that private property was the result of individual
will. Contra this, they argued that a thing only becomes true property in intercourse, and independently of law. This was because in actual fact ownership and
the benefits thereof were rooted in social relationships, not just in abstract legal
title. Hence whenever new forms of social intercourse arise the law is compelled to
admit them among the modes of acquiring property.13
In The German Ideology Marx and Engels addressed a relatively narrow set of
legal issues, primarily property law. However, in an earlier pieceOn the Jewish
QuestionMarx elaborated a similar analysis, but ascribed it a much wider legal
significance. In this text, Marx sought to trace the rise of law and the rights of man
to the position of organizing principle of society. Drawing on Hegel, he understood
modern societies as divided between political community, where people act as
communal beings, and civil society, where people act as private individuals.14 This
10
11
14

K Marx and F Engels, The German Ideology in The Marx-Engels Reader (n 2)146200, at188.
12
13
Ibid.
Ibid.
Ibid.
K Marx, On the Jewish Question in The Marx-Engels Reader (n 2)2652,at34.

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was not always the case. Historically, civil society had a directly political character
because its various aspectsproperty, the family, and so onwere political, taking
the forms of lordship, castes, and guilds.15 Ownership, production, and appropriation were tied directly to political questions of status.
This changed with the rise of modern (capitalist) societies. In capitalist societies
there is no longer a direct link between ones customary, status-based position and
the appropriation of value; instead this is mediated through the market. In such
a situation, the interpenetration between state and society is no longer tenable.
As a result, the formation of the political state, and the dissolution of civil society
into independent individuals were part and parcel of the same historical process.16
This was where law entered the picture. When civil society had a directly political
character, relationships between individuals were mediated through privilege and
status, but once civil society was composed of independent individuals, their relations needed to instead be mediated throughlaw.17
Consequently, the so-called rights of man, as distinct from the rights of the
citizen, are simply the rights of a member of civil society, that is of egoistic man,
of man separated from other men and from the community.18 Here liberty is
the right to do everything which does not harm others, the limits of which were
determined by law. This liberty was the liberty of man regarded as an isolated
monad, withdrawn into himself.19 The practical application of the right of libertywhich is embodied in the law, which itself regulates relationships across
societyis the right of private property.20 Moreover, since civil society was the
mechanism through which the material basis of society was reproduced, the role
of political society was simply to preserve civil society.21
Marx and Engels thus drew a structural link between the emergence of capitalism and the dominance of law and legal relations. However, as noted earlier,
they also sought to understand the ways in which classes directly instrumentalized
law. Marxs Capitalwhilst sharing many of the insights aboveis interesting in
this respect, particularly in relation to the question of the working day. In Marxs
account, labour-power is a unique commodity because it is able to produce new
value. This is because capitalists only need pay workers sufficient money to reproduce their own existence. The difference between wages and the value that workers produce through their labour is known as surplus value. Capitalists constantly
strive to increase their surplus value and can do so by increasing the length of the
working day, or by forcing workers to be more productive.
In Chapter Ten of Capital, Marx showed the vital role that law played in capitalist
exploitation. Law is the form through which the employer and employee meet each
other as free persons, as independent owners of commodities.22 In other words,
15
18
22

(n 2) 44 (emphasis in original).
Ibid 42 (emphasis in original).
Capital (n 7)519.

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16
19

Ibid 456 (emphasis in original).

20
21
Ibid.
Ibid.
Ibid43.

17

Ibid.

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it is through the contract that the labour-capital relationship is constituted. More

importantly, [t]he establishment for a normal working day is the result of centuries of struggle between the capitalist and worker and this struggle was conducted
through legislation.23 From the fourteenth century to the end of the seventeenth
century capital tried to impose a lengthened working day on a nascent working
class by acts of state power.24 Yet from the 1800s, legislation became aimed at
shortening the working day. For Marx, this legislation was only able to become effective after it had been wrung step by step in the course of a civil war lasting half
a century.25
This law became a site of class struggle, where the labourers came together as
a class, [to] compel the passing of a law, an all-powerful social barrier by which
they can be prevented from selling themselves and their families into slavery and
death.26 This struggle drew the working class together as a political subject, weakened the power of the bourgeoisie, and lessened the rate of exploitation. However,
there were real limits to this struggle:the law did not end exploitation, but encouraged capitalists to increase the productivity of their workers through mechanization and increased labour discipline.
Law and legislation also played a vital role in primitive accumulation. By primitive accumulation, Marx referred to the process through which the preconditions
for capitalism were posited. Here, a key process was the transformation of the
feudal populations into proletarians. This could only be accomplished through the
abolition of customary land use rights, meaning that people could only gain
their subsistence through seeking employment. In England this was accomplished
through a series of Acts of Parliament dubbed the Enclosure Acts.27 Furthermore,
when these nascent labourers had been turned off the land they were subject to
legislation banning begging and vagabondage.28 The aim of this legislation was
to compel these former peasants into accepting the discipline necessary for the
system of wage labour.29 For Marx, therefore, law was an important tool in the
hands of the emerging bourgeoisie.
Since primitive accumulation did not just take place at home, but also abroad,
this was the closest that Marx came to discussing international law. Marx noted that
the dawn of capitalist production was marked by the discovery of gold and silver
in America, the extirpation, enslavement and entombment in mines of the indigenous population of that continent, the beginnings of the conquest and plunder of
India, and the conversion of Africa into a preserve for the commercial hunting of
blackskins.30 Since the colonies provided a market for the budding manufactures
and the treasures captured outside Europe flowed back to the mother country
they enabled European capitalists to establish huge reserves of wealth.31 Marx did

23
28

(n 7)382.
Ibid897.

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24
29

Ibid.
Ibid899.

25

Ibid409.
30
Ibid915.

26

Ibid416.
31
Ibid918.

27

Ibid886.

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not mention international law in this context, although he did note that the power
of the state was deployed.32 Despite this, it is clear that these international processes were mediated through international lawfor example, colonial expansion
was enabled through the law of territorial acquisition and treaties played a central
role in guaranteeing trade and navigation.

3 Marxist Theories ofImperialism

If Marxism entails understanding law as embedded in a specific matrix of economic relations, then understanding international law requires understanding the
particularities of the international economy. Marx and Engels had a contradictory
understanding of this. On the one hand, they described a world economy characterized by violent, nation-state based conflict, uneven development, and the coexistence of different modes of production. On the other hand, they also held to
a more diffusionist account of capitalism, seeing it as spreading relatively evenly
from Europe.33 In such a vision, [n]ational one-sidedness had become more and
more impossible.34
Following Marx and Engels deaths it became vital to resolve this tension. The
deepening and spread of capitalism saw an intensification of colonialism and national rivalries. In order to intervene in this conjuncture, Marxists expanded upon
the first aspect described earlieremphasizing the uneven character of capitalist
development and its violent and predatory nature. These questions of imperialism
became central to the Marxist tradition.
Classical Marxist accounts of imperialism begin with Rudolf Hilferding.
Hilferding argued that in the late 1800s Marxs predictions as to the concentration
of capital had proved correct.35 As firms went bankrupt and were bought up by others, capitalist industry became increasingly monopolistic. In order to guarantee
their stability and profits, firms formed cartels, fusing industrial and financial capital together. This development turned capitalists against free trade, which would
undermine their cartels and they pushed for tariffs. However, tariffs limited the
potential size of the market and so restricted profits.
The solution to this problem was to first increase the size of the tariff territory
through the acquisition of colonies, and second to export capital. The latter case

32

33
34
(n 7)915.
Manifesto of the Communist Party (n 8)476.
Ibid477.
R Hilferding, Finance Capital:AStudy of the Latest Phase of Capitalist Development (Routledge
NewYork1981)
35

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no longer simply involved the sale of commodities abroad but rather involved
establishing foreign business ventures and directly exploiting foreign labour. This
required the large-scale development of and investment in factories, transport
infrastructure, and so forth. In both of these instances it was the less-developed
capitalist economies which provided the fullest scope for increased profits. This
necessarily involved state-led interventions to subdue, develop, and transform
these economies. Thus, monopoly capitalism domestically gave rise to the continuous global expansion of capital, which had to violently subdue and transform
less-advanced economies; this was imperialism.
Although Hilferding laid the groundwork for a theory of imperialism, he was
more concerned with analysing how finance capital operated domestically. It was
Bukharin and Lenin who drew the strands of his argument together. Essentially,
they followed Hilferding, but claimed that the developments he described had
given rise to an international division of labour, representing a qualitatively distinct
stage of capitalism, which was now a world system of colonial oppression and . . . financial strangulation of the overwhelming majority . . . by a handful of advanced
countries.36
They further argued that this system gave rise to intense rivalry between capitalist states.37 Because of the exclusionary nature of the tariff system, capitalists
competed against each other for economic territory. Insofar as these capitalists
dominated their respective states, economic competition was also transformed
into political and military competition. Thus, for Lenin and Bukharin, imperialism was marked by a struggle between the advanced capitalist powers for the
division and redivision of the world.38
These authors did not engage in many explicit reflections on international law.
But given the close connection between international law and the events they
analysed, some reflection was inevitable. They all suggested that international
law was one of the mechanisms through which the struggle between imperial
powers was conducted and through which colonial oppression was enacted. This
was especially true in the case of treaties, which were seen as codifying particular balances of forces. Lenin, for instance, argued that the Treaty of Versailles
was an unparalleled and predatory peace and that [t]hrough the Treaty a situation had arisen wherein seven-tenths of the worlds population are in a condition of servitude.39 He also thought that the international institutions of his time

36
VI Lenin, Imperialism, the Highest Stage of Capitalism:APopular Outline (Foreign Languages
Press Peking 1970)at5.
37
NI Bukharin, Imperialism and World Economy (Merlin Press London1972).
38
Ibid150.
39
VI Lenin, Speech Delivered at a Conference of Chairmen of Uyezd Volost and Village Executive
Committees of Moscow Gubernia October 15, 1920 in MS Levin (ed), VI Lenin, Collected Works
(Progress Moscow 1966) vol 31, 31833, at326.

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embedded and articulated the rivalries thrown up by imperialism. In particular,

he characterized the League of Nations as a sheer fraud . . . an alliance of robbers, each trying to snatch something from the others.40 This was in contrast to
Karl Kautskyone of Lenins main political opponentswho thought that the
monopoly tendencies of capitalism were eliminating rivalries between states. For
Kautsky it was necessary to judge the League according to what could be made
of it if the Socialists of the world took the greatest interest in it. He thought the
League represent[ed] the only rational method of putting an end to litigious
international questions.41
Lenins account of the juridical nature of colonialism was in some respects
contradictory. On the one hand, he did not envisage that colonial domination had
to be directly juridical. Since, for him, imperialism was primarily about the logic
of economic annexation, the power of finance capital was such a decisive force in
all economic and in all international relations that it subjected even states enjoying the fullest political independence.42 Consequently, imperialism was not just
composed of colonies but also diverse forms of dependent countries which, officially, are politically independent, but in fact, are enmeshed in the net of financial and diplomatic dependence.43 These were semicolonial states. However, at
the same time, he clearly thought that the direct juridical relationship between
colonial power and colony was the primary form of imperialism. He argued that
political annexation often makes economic annexation easier, cheaper . . . more
convenient, less troublesome44 and stated that the semicolonial states were transitional forms.45 History has not borne this out and later Marxists have argued that
these forms were in fact generalized as neo-colonialism.46
Lenins broader reflections on the role of international law tend to be closer to
the idea that imperialism need not be expressed legally. He argued that [l]aws
are political measures which could not prohibit economic phenomena.47 In
his analysis, the fundamental driving force of imperialism was its economic
logic, which could manifest itself in many different forms, only some of which
were legal. For Lenin, the forms of the struggle between imperialists constantly change in accordance with varying . . . causes, but the substance of the
struggle, its class content, positively cannot change.48 This had important political consequences, since it followed that without the revolutionary overthrow
of capitalism, no international arbitration courts, no talk about a reduction of
40

41
(n 39)323.
K Kautsky, The League of Nations, Justice (10 April 1923)3.
43
Imperialism, the Highest Stage of Capitalism (n 36)97.
Ibid101.
44
VI Lenin, A Caricature of Marxism and Imperialist Economism in VI Lenin, Collected Works
(n 39)vol 23, 2876,at44.
45
Imperialism, the Highest Stage of Capitalism (n 36)96.
46
K Nkrumah, Neo-Colonialism:The Last Stage of Imperialism (Panaf London1971).
47
A Caricature of Marxism and Imperialist Economism (n 44)488.
48
Imperialism, the Highest Stage of Capitalism (n 36)89 (emphasis in original).
42

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armaments, no democratic reorganisation of the League of Nations will save

mankind from new imperialist wars.49
Although other Marxist theorists of imperialism have different analyses of the precise forces driving imperialism, they tend to share this relatively problematic account
of international law. Whilst admirably tracing the way in which law articulated imperialist social relations, the connections established between the two were contingent
and conjunctural, without any deeper materialist theory of international law. In such
a vision, international law figures as something of a passive vessel which sometimes
expresses the real life of the international economy, and sometimes is simply ignored
or overridden. Although this advanced beyond Marx and Engels accounts of the world
economy, it was also a theoretical step back:as it cannot explain the specificity of legal
logic and what role this logic plays in capitalist social relations. The criticism of this type
of position was the starting point for Evgeny Pashukanis commodity-form theory.

4 Marxist International LegalTheory

4.1 The Commodity-formTheory
Evgeny Pashukanis is perhaps the most important Marxist legal theorist. Most of
the revivals in Marxist legal theory have been centred around the rediscovery
of his thought, and he remains a key reference point. Pashukanis was a Bolshevik
jurist who came to prominence following the Russian Revolution. He was the main
Soviet legal theorist in the 1920s and 1930s, establishing a loyal school and dominating the Soviet legal academy. Although not a Trotskyist, his work increasingly
fell out of favour with the Stalin regime and he was executed in 1937.50
For Pashukanis, any account of law had to look at what differentiated it from
other social forms. Such differentiation could not lie in laws function in regulating social life, since we know that collective life exists even among animals, yet
it never occurs to us to affirm that the relationship of bees or ants is regulated by
law.51 Instead, the correct starting point was to note that under certain conditions
the regulation of social relationships assumes a legal character52the task was to

49
VI Lenin, Conditions of Admission into the Communist International in VI Lenin, Collected
Works (n 39)vol 31, 20611, at208.
50
JN Hazard, Pashukanis is No Traitor (1957) 51 American Journal of International Law3858.
51
EB Pashukanis, The General Theory of Law and Marxism in P Beirne and R Sharlet (eds),
Pashukanis:Selected Writings on Marxism and Law (Academic Press London 1980) 37131,at58.
52
Ibid (emphasis in original).

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analyse what this character (or form) was and what conditions gave rise to it. As
such, accounts which merely sought to introduce the element of class struggles53
into a positivistic theory of law, simply gave a history of economic forms with a
more or less weak legal colouring.54 Thisone might argueis an apt description
of how Marxist theorists of imperialism understood internationallaw.
Following Marxs On the Jewish Question (and his scattered musings in Capital),
Pashukanis argued that the conditions that give rise to the legal form are those of
commodity exchange. In order for commodities to be exchanged, their guardians
must . . . recognize each other as owners of private property; this juridical relation, whose form is the contract . . . mirrors the economic relation.55 Accordingly,
each commodity owner must recognize the other as an equal, in an abstract,
formal sense. But since within any exchange there is the possibility of dispute,
there needs to be a way to regulate these disputes, and it is here that law arises.
For Pashukanis, the legal form is that which regulates disputes between formally
equal, abstract individuals.
Since commodity exchange predates capitalism, so too did law;56 however, it
existed in specific pockets of social life, intertwined with custom, status, religion,
and privilege.57 As capitalism came to dominate, so too did commodity exchange,
and therefore law. However, it was not simply that there was more exchange, and
therefore more law. In the logic of capitalism (as opposed to exchange generally) separate and random acts of exchange turn into a broad systematic circulation of commodities.58 In this situation, value ceases to be embodied in specific
exchanges and becomes an abstract category, since everything must be exchangeable. Asimilar transformation occurs with law, with the rise of an abstract, universal legal subject.59
In his account of international law, Pashukanis combined this commodity-form
theory with Lenins account of imperialism. Pashukanis argued that international
law was in fact the oldest form of law, since one could trace rudimentary international legal institutions to the most ancient periods of class and even pre-class
society.60 This was because commodity exchange initially took place not between
individuals but amongst communities.61 However, as with domestic law, it was
only with capitalism that international law came to full-flower. Firstly, capitalism
witnessed the extension and blossoming of commodity exchange internationally.
Secondly, the independent sovereign state, generally seen as the central subject of
international law, was itself a product of the development of capitalism. This began

53

54
55
(n 51)41.
Ibid42.
Capital (n 7)178.
57
58
The General Theory of Law and Marxism (n 51)79.
Ibid801.
Ibid77.
59
Ibid778.
60
EB Pashukanis, International Law in Pashukanis:Selected Writings on Marxism and Law
(n 51)16883, at175.
61
Ibid.
56

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with the formation of absolute monarchies, whose economic basis was the development of mercantile capital62 but it was only with the bourgeois revolutions that
this process was fully completed. These developments separated state rule from
private rule, and transformed political power into a special force and the state into
a special subject, a subject not to be confused with those persons who . . . were the
bearers of state authority.63
Since these states are class states enmeshed in a system of imperialism, their class
basis is expressed through international law. Thus, picking up on Lenins theory
of imperialism, Pashukanis argued that rather than a neutral body of global rules,
international law is the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world.64 Like Lenin, Pashukanis studied
the role of particular treaties in structuring and articulating imperialist domination, arguing that a treaty obligation is nothing other than a special form of the
concretization of economic and political relationships.65 Similarly, Pashukanis was
attentive to the way in which international law structured the relationship between
the advanced capitalist countries and the colonial world. He argued that the division of states into civilized and semi-civilized66 was rooted in the exploitative
logic of imperialism, and that international law was the totality of forms which
the capitalist, bourgeois states apply in their relations with each other, while the
remainder of the world is considered as a simple object of their completed transactions.67 Finally, he drew attention to the fact that directly juridified colonial domination was not the only mechanism of international capitalist exploitation. Just as
private law assumes all subjects are formally equal yet simultaneously permits real
inequality in property so too did international law recognize that states have equal
rights yet in reality they are unequal in their significance and their power.68 This is
even more the case given the absence of a centralized internationalstate.
This latter proposition is the central starting point of China Mivilles 2005
attempt to apply systematically Pashukanis insights to the study of international
lawBetween Equal Rights. This book has been at the centre of the contemporary
revival in Marxist international legal theory, andlike Pashukanishas become
an obligatory reference point. Miville argues that a full application of Pashukanis
commodity-form theory is able to illuminate some of the central problems of the
international legal discipline. In particular, Pashukanis is able to answer the ageold question of whether international law is reallylaw.
One of the criticisms most frequently levelled at international law is that it cannot really be law because there is no overarching sovereign to enforce it. By insisting that law was to be understood as a relationship between abstract, formally equal
subjects, Pashukanis displaced this focus. However, one might still ask, absent

62
66

(n 60)173.
Ibid172.

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63

67

64
Ibid174.
Ibid 169 (emphasis in original).
68
Ibid.
Ibid178.

65

Ibid181.

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some notion of enforcement, can we really talk about law? It is here that Miville
attempts to go beyond Pashukanis. Miville argues that Pashukanis failed to properly account for the violence at the heart of the commodity-form. Pashukanisin
what Miville dubs a characteristic slip69argued that [c]oercion . . . contradicts
the fundamental precondition for dealings between the owners of commodities.70
For Miville, this cannot be true. In order for a commodity to be meaningfully
mine-not-yours . . . some forceful capabilities are implied, absent this, it could be
taken from me, and there would be no act of exchange.71 This connection between
violence and exchange carries over into the legal form, as the violence of allowing
something to remain mine-not-yours is also the vindication of legal rights.
It is this argument, for Miville, that fundamentally cements international laws
law-ness. Because coercion is inherent in the commodity formthat is, it can operate as between the parties themselvesthere is no need for a superordinate overarching sovereign to be present. Rather, without superordinate authorities . . . the
coercive violence of the legal subjects themselves . . . regulates the legal relation.72 Indeed,
as Pashukanis himself pointed out, even domestically a major portion of civil law
relationships are carried out without any state intervention.73
The question of violence is also intrinsically linked to the question of laws
content. Miville follows Martti Koskenniemi in arguing that international law
is indeterminate. Famously, Koskenniemi holds that the international legal order
is structured by a fundamental tension. On the one hand, it is composed of independent, sovereign states which can only be voluntarily bound. This creates
principles which take state will as their starting point. On the other hand, this
cannot not be a source of obligation for states, since international law needs to bind
states, even when they do not desire to be bound. For Koskenniemi this tension
is a symptom of the broader structure of the international legal order itself:one
can always proceed from state interest (apology) or world order (utopia). The attendant arguments are both equally legitimate, and mutually opposed, meaning
international law can never provide an answer on its ownterms.
Miville accepts this account, although he argues it is idealist, since it locates
this contradiction in liberal thought, rather than capitalist social relations.74 More
importantly, Miville asks how it is, given indeterminacy, that arguments are nonetheless resolved. Miville turns to Marx, who arguedin the context of the Factory
Actsthat between equal rights, force decides; that is to say that insofar as there
are two equally compelling legal arguments, it will be force which chooses between
them.75 Domestically, this is done by the state. However, in the international legal
arena [t]here is no state to act as final arbiter of competing claims and accordingly
69

C Miville, Between Equal Rights:AMarxist Theory of International Law (Brill Leiden 2005)
at126.
70
71
72
73
Ibid143.
Ibid126.
Ibid133.
International Law (n 60)180.
74
75
Between Equal Rights (n 69)54.
Capital (n 7)344.

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[t]he means of violence remains in the hands of the very parties disagreeing over
the interpretation of law.76
The form that this violence takes is conditioned by the social relations in which
it is articulated. Internationally this is imperialism, the vision of which Miville
like Pashukanistakes from Lenin and Bukharin. Miville takes this to its logical
extreme, arguing that since [t]he necessity of this unequal violence derives precisely from . . . juridical equality, it follows that in its universalised form, predicated on juridical equality . . . international law assumes imperialism.77
As such, there is a structural connection between international law and
imperialismfirstly, insofar as the international legal form is bound up with the
spread of international capitalism, and secondly, because only the violence of imperialism can effectively resolve legal arguments. Thus, whilst relying on classical
Marxist theories of imperialism, the commodity-form theory goes beyond their
account of international law. International law and imperialism are not simply
coincident, but fundamentally connected. However, Miville goes further than
this. He argues that with the full flowering of capitalism internationally, international law becomes universal, permeating every international incident and the
very fabric of the international system.78 Thus, rather than simply being structurally connected, international law actually comes to structure and constitute the
world.79

4.2 Ideology Critique

Ideology is one of the tools that Marxists have deployed most frequently to understand law. As previously noted, Marx and Engels first elaborations of law were
in The German Ideology and Marx characterized law as an ideological form.80
Ideology was particularly important during the revival of Marxist legal theory in
the 1970s. As Cain and Hunt note, this was part of a wider revival of Marxism
triggered by the translation of Louis Althusser and Antonio Gramsciwhich was
concerned to escape from the conceptual grip of inevitable historical processes, to
reassert the analytic independence of structures from their bearers and . . . to insist
on the ability of people to change these structures.81
Of course, in these debates ideology took on a very specific meaning. In its
older conceptions, ideology has historically been understood as false consciousness. In this vision, [i]deology is a process accomplished by the so-called thinker
consciously . . . but with a false consciousness. The real motive forces impelling him

76
80
81

77
78
79
(n 7)292.
Ibid 293 (emphasis in original).
Ibid282.
Ibid283.
Preface to a Contribution to the Critique of Political Economy (n2)5.
ME Cain and A Hunt, Marx and Engels on Law (Academic Press London 1979)atix.

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remain unknown to him.82 Here, law essentially serves as a smokescreen to cover

up the real processes at work in the worldin particular, class and the class struggle. Althusser and Gramsci were seen to move beyond this.83
These debates did not have a huge impact upon the international legal field. Here
the most important theories of ideology have been those of ideology critique drawn
from the Frankfurt School, exemplified in the work of Susan Marks. Drawing on
John Thompson, Marks defines ideology as how meaning serves to establish and
sustain relations of domination.84 This conception of ideology is a critical one, insofar as ideology is not taken as a neutral description of beliefs or worldviews.85
It is also not an epistemological position concerned with failures to comprehend
reality.
There are manifold ways in which meaning might serve to establish and sustain
relations of domination. However, Marks argues that there are a number of key
ideological manoeuvres, each with its own discursive strategies. The key moves
are legitimation, which is the process by which authority comes to seem valid
and appropriate;86 dissimulation whereby relations of domination are obscured,
masked or denied;87 unification through which social relations are made to seem
harmonious and coherent;88 reification which makes social relations seem as if
they are not the product of human relations and therefore appear eternal;89 and
naturalization which makes existing social arrangements come to seem obvious
and self-evident.90 Crucially for Marks, these positions are not caused by ignorance. Although illusion may be involved in any of them, it is not a simple case of
error or ignorance of social reality.91 Instead, whilst we may be aware of exploitation and inequality in the world, we act as if we are not. Illusion comes in with the
failure to realize the impact of acting in such away.92
As a form of ideology, international law performs all of these manoeuvres. For
example, in The Riddle of All Constitutions Marks argues that the uneven development of global capitalism has thrown up a system of low intensity democracy.
Low intensity democracy meets the immediate needs of anti-authoritarian crisis,
easing tensions, and restoring order but does so in a manner that forestalls farreaching structural change.93 Marks argues that international law helps stabilize
this. Here, international law essentially sets up the criteria through which democracy can be monitored by international organizations, focusing heavily around
the idea of elections. In so doing international law engages in naturalization, by
82
F Engels, [Letter on Historical Materialism] To Franz Mehring in The Marx-Engels Reader
(n 2)7657, at766.
83
A Hunt, The Ideology of Law:Advances and Problems in Recent Applications of the Concept
of Ideology to the Analysis of Law (1985) 19 Law & Society Review1137.
84
S Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of
Ideology (OUP Oxford 2003) at 10 (emphasis in original).
85
86
87
88
89
Ibid11.
Ibid19.
Ibid20.
Ibid.
Ibid21.
90
91
92
93
Ibid22.
Ibid23.
Ibid.
Ibid57.

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proclaiming low-intensity democracy as the only form of democracy; unification,

because it detaches political rights from broader issues and reification because
democracy is de-historicized.94 International law, then, lends a veneer of democratic legitimacy to the intensification of capitalist exploitation.
One can find similar accounts throughout the contemporary Marxist international legal corpus. Tor Krever, for example, has argued that international criminal law abstracts individuals actions from broader social relations.95 As such,
horrific actions are no longer seen as part of a global system of violence but instead
the actions of a few rotten apples with emphasis placed on abnormality of conjunctural violence, rather than with the normality of the forces . . . that lurk beneath.96
Despite the numerous possible variations of international legal ideology it is this
abstraction that is perhaps the most common manoeuvre. Marks herself has recognized this in her later work. In Human Rights and Root Causes, she argues
that human rights law tends to eschew broader enquiries into systemic causation.
Whilst there is a focus on some of the conditions that engender and sustain the
problems of the world, very little attention is given to the larger framework within
which those conditions are systematically reproduced.97 This means that the practical focus on human rights is profoundly depoliticizing. Thus, one of international
laws key roles is the creation of false contingency98 which draws our attention
away from the systemic problems of capitalism.

4.3 International Law and theThirdWorld

Historically, one of the most important sites for the reception of Marxist theories of
imperialism was the Third World. Many Third Worldist jurists and activists articulated accounts of international law heavily influenced by Marxism. Mohammed
Bedjaoui, for example, argued that international law had permitted colonization,
the exploitation of man by man, and racial discrimination and facilitated and
legalized the enrichment of the affluent countries.99 This was because classical
international law was derived from the laws of the capitalist economy and the liberal political system.100 Contemporary international law continued to enable neocolonial exploitation.101
94

(n 84)637.
T Krever, International Criminal Law: An Ideology Critique (2013) 26 Leiden Journal of
International Law 70123, at720.
96
Ibid722.
97
S Marks, Human Rights and Root Causes (2011) 74 Modern Law Review 5778,at71.
98
S Marks, False Contingency (2009) 62 Current Legal Problems121.
99
M Bedjaoui, Towards A New International Economic Order (Holmes & Meier New York
1979)at63.
100
101
Ibid49.
Ibid37.
95

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For Bedjaoui, the problem was not that law created unequal relationships102
but rather that there was a dichotomy between law and reality,103 where formal
legal equality covered up real inequality through a laissez-faire and easy-going
attitude which . . . led . . . to legal non-intervention, which favoured the seizure of
the wealth and possessions of weaker peoples.104 This was a result of his broader
understanding of law as a moment in the evolution of social and economic acts,
stabilizing . . . the balance achieved between them.105 Accordingly, there was no necessary relationship between law and imperialism. Although law was conservative,
if reality changes so as to become more egalitarian, the law inevitably . . . takes the
new material data into account.106
Bedjaouis approach of rooting legal argument in the changing relationships of
imperialism is reflected in contemporary Marxist scholarship. Perhaps the most
prominent exponent of this approach is BS Chimni, who argues that the juridical
is simultaneously the sociological.107 According to Chimni, the intimate interconnection between the domestic and international under capitalism means that
international relations flow from the internal organization of states.108 Since every
state in the global order sits atop a mode of production, [t]he foreign policy of a
state is integrally linked to its domestic policy.109
However, the capitalist mode of production is always global, and so the international economy is not just an agglomeration of national economies. Rather, capitalism produces a world market which functions on the basis of an international
division of labour, which defines the relationship between domestic economies
and the world economy.110 Consequently, Chimni argues that international law and
institutions [are] a device which serves sectional global interests.111 The dominant
classes within the international division of labour seek to realize their interests
through international law.112 Therefore, any change in the international division of
labour will be reflected in international law.113
For Chimni, there have been five epochs of imperialism, each of which fundamentally shaped international law. The first was from 16001760, the period of old
colonialism. This was characterized by primitive accumulation and mercantilist
102

103
104
105
106
(n 99)112.
Ibid63.
Ibid49.
Ibid106.
Ibid112.
BS Chimni, International Law and World Order:ACritique of Contemporary Approaches (Sage
NewYork 1993) at218.
108
BS Chimni, Marxism and International Law:AContemporary Analysis (1999) Economic and
Political Weekly 33749, at337.
109
110
Ibid.
International Law and World Order (n 107)221.
111
Marxism and International Law (n 108)338.
112
Of course, the process is complicated, with class interest not being directly translated into international law, because foreign policy is a compound expression of several factors:dominant class
interests, the compromise with other social classes, national security concerns, cultural anxieties,
resistance movements [and so forth]:BS Chimni, Prolegomena to a Class Approach to International
Law (2010) 21 European Journal of International Law 5782,at68.
113
International Law and World Order (n 107)221.
107

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expansion, as well as the consolidation of territorial Westphalian states. Legally,

this period saw the transition from feudal international law to bourgeois
internationallaw.
Whereas old colonialism was based on the backwardness of European manufacture, and the need to accumulate materials from the colonies, the new colonialism
(17601875) reversed this. A greater stress was placed upon colonies as markets.
International law emerged on a firmer basis, more strongly structured around sovereignty. However, with the growing importance of colonies for European development, [b]ourgeois international law shrank from a universal law of nations to
being a Christian law of nations.114 In this way the non-European world was opened
up to capitalist penetration and exploitation. These tendencies were exacerbated in
the period of imperialism (18751945), which was marked by the rise of monopoly
capitalism. There was a strong push to acquire new colonial territory, particularly
in Africa, and international law was key in enabling this. International law became
increasingly structured around civilization, as opposed to Christianity, a move
that was inspired partly by the need to accommodate the rise of non-European
great powers some of which were not Christian.115
For Chimni, decolonization was a contradictory phenomenon. It achieved
progress in liberating the former colonial territories from direct political domination. However, the end of colonialism did not signify the end of imperialism
but the beginning of . . . imperialism without colonies.116 Thus, 19451980 was
marked by the rise of neo-colonialism, a situation in which political independence goes hand in hand with economic dependence.117 Whilst international law
did for the first time posit the sovereign equality of all states, this coexisted with
real inequality facilitated through international law. The international law of
the neo-colonial period, then, can be characterized as bourgeois democratic
becauselike liberal democracyformal equality was juxtaposed with material
inequality and exploitation.
This leads to the present period, that of globalization. Chimni argues that from
the 1980s, the most important development in capitalism was the rise of a transnational capitalist class. This class is a truly global one, with no particular ties to
any national economy, and led the drive towards globalization. Transnational
capital requires a functional unified global economic space in which capital is able
to have free movement.118 For Chimni, international institutions have played a vital
role in this process. In a role analogous to that of the state in the earlier stages
of capitalism, international institutions have removed local impediments to the
process of capital accumulation.119 Thus, the WTO, IMF, and World Bank have
114

115
116
117
(n 107)231.
Ibid233.
Ibid235.
Ibid250.
BS Chimni, International Institutions Today:An Imperial Global State in the Making (2004)
15 European Journal of International Law 137, at 9 (emphasis in original).
119
Ibid7.
118

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remodelled the economies of peripheral societies along lines that make them much
more attractive for transnational capital and reshaped their political life through
the discourse of good governance.
The sum total of these relationships means that a global state is in the process
of formation. The function of this state is to realize the interests of transnational
capital and powerful states in the international system to the disadvantage of third
world states and peoples.120 Accordingly, this is a global imperial state. It is important to note here that Chimni is not arguing that a global state has displaced
national states. Rather, he argues that the structural role of sovereign states in the
international order has been transformed through globalization, leading to international institutions and these states performing the functions of a global state.
This, he argues, is a step back from the gains made by bourgeois democratic law,
and a new global social movement must attempt to democratize the globalstate.
Chimnis account might be seen as something of a materialist account of international law from above, with its focus on changing patterns of capitalist accumulation.121 Insofar as resistance does appear, it does so briefly in his account of
decolonization. In stark contrast to this is Bill Bowrings work. Bowring starts
from the proposition that one cannot view law and rights as deracinated empty
forms122 but instead they must be understood as the subjects and objects of real
struggles in the real world.123 Thus, he gives a substantive account of international
law, in which it is understood as the product of human struggle.124 In his vision,
international law responds to great historical upheavals (the French, Russian, and
anti-colonial revolutions) by embedding their principles.

5 Conclusion:SoWhat? (is tobeDone)?

One of Marxs most famous quotes is his eleventh thesis on Feuerbach, namely
that [t]he philosophers have only interpreted the world, in various ways; the point,
however, is to change it.125 Whilst this can be interpreted in a boringly vulgar
120

(n 118)12.
See also M Neocleous, International Law as Primitive Accumulation; Or, the Secret of
Systematic Colonization (2012) 23 European Journal of International Law 94162; A Rasulov, Writing
About Empire:Remarks on the Logic of a Discourse (2010) 23 Leiden Journal of International Law
44971.
122
B Bowring, Degradation of the International Legal Order:The Rehabilitation of Law and the
Possibility of Politics (Routledge-Cavendish Oxford 2008) at109.
123
124
Ibid111.
Ibid112.
125
K Marx, Theses on Feuerbach in The Marx-Engels Reader (n 2)1435, at145.
121

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325

fashion, it does express an important truth. Lurking in the background of the

debates recounted this chapter is the question of what role, if any, law can play in
emancipatory social change.126
Each of the positions described earlier has its own answer to this question, but
we mightfor the sake of argumentdivide them into two camps:the opportunists and the denialists. In some respects, the former camp is the largest. Marks
argues that a virtue of ideology critique is that ideology is never unidirectional.
Because ideology is always unstable, it is possible to find counter-systemic logics
in international law, by noting the contradiction between the promise and reality
of law and insisting that the promise be fulfilled.127 Similarly, Chimni holds contemporary international law . . . offers a protective shield . . . to the less powerful
States in the international system.128
Against this, Miville has trenchantly insisted that [t]he attempt to replace war
and inequality with law . . . is precisely self-defeating, a world structured around
international law cannot but be one of imperialist violence.129 This argument has
met with a robust response from many of the authors referred to in this chapter. In
actual fact, these camps are something of a simplification. Mivilles argument is
for the structural connection between international law and imperialism, but this
does not necessarily have immediate consequences for day-to-day practice.
As Ihave argued elsewhere, this debatesometimes conducted under the rubric of reform or revolutionneeds to be structured by a concept of strategy and
tactics.130 Marxists do not believe that the problems of the world are simply the
result of chance occurrences. They instead are undergirded by wider and deeper
systems of social relations, with their own logics. In order to resolve these problems
we must fundamentally transform our social order. At the same time, in order to
transform this social order it is necessary to engage in a number of smaller, more
defensive acts, which constitute the day-to-day practice of social movements.
Thus, in a long-term, structural, and strategic sense, we wish to overthrow the
existing order. But in a short-term, conjunctural, tactical sense it is necessary
to work within it. The task, then, is to figure out how these interrelate. But this
problem cannot be resolved empirically. If the considerations made in this chapter
are correct, then what mightin the short termlook like emancipation, could
in the longer run reinforce relationships of oppression and domination. In order
to truly answer these questions, there needs to be a deeper jurisprudential theory
126
G Baars, Reform or RevolutionPolanyian versus Marxism Perspectives on the Regulation
of the Economic (2011) 62 Northern Ireland Legal Quarterly 41532; R Knox, Strategy and Tactics
(2010) 21 Finnish Yearbook of International Law 193229; O Taylor, Reclaiming Revolution (2011) 22
Finnish Yearbook of International Law 25992.
127
The Riddle of All Constitutions (n 84)144.
128
BS Chimni, Third World Approaches to International Law:AManifesto (2006) 8 International
Community Law Review 328, at 26 (emphasis in original).
129
130
Between Equal Rights (n 69)319.
Strategy and Tactics (n126).

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about the structural relationship between law and capitalism, and law and imperialism.131 The great advantage to Pashukanis (and Miville), no matter what one
thinks of their answers to these questions, is that they actually attempt to do this.
Whilst much of the work noted in this chapter offers gestures in this direction, or
contains implicit theoretical perspectives, there is little systematic reflection on
these issues. Absent this, whilst impressive strides can be made, the question of the
relationship between law and social change on a broader levelwhat we might dub
the question of Marxist legal theoryremains unanswered.

131

R Knox, What is to be Done (With Critical Legal Theory)? (2011) 22 Finnish Yearbook of
International Law3150.

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