There's no such thing as a 'natural' disaster

As the Haiti disaster unfolds to ever greater levels of misery, it's worth flagging up a number of brilliant analyses by people on the left. Whilst I'm sure many people have already read these, I think they give us some interesting thinking matter with regards to international law. The two obviously important pieces are those by Greg Palast and Peter Hallward (but also see Lenin, Kasama and K-Punk) The central point of both of their arguments is that there is simply no such thing as a 'natural' disasters. 'Natural' disasters always occur inside of a social context which mediates and determines the effects of such 'natural' disasters. In Haiti's case this is no different, as Hallward notes:

The noble "international community" which is currently scrambling to send its "humanitarian aid" to Haiti is largely responsible for the extent of the suffering it now aims to reduce. Ever since the US invaded and occupied the country in 1915, every serious political attempt to allow Haiti's people to move (in former president Jean-Bertrand Aristide's phrase) "from absolute misery to a dignified poverty" has been violently and deliberately blocked by the US government and some of its allies ...

Haiti is now a country where, according to the best available study, around 75% of the population "lives on less than $2 per day, and 56% – four and a half million people – live on less than $1 per day". Decades of neoliberal "adjustment" and neo-imperial intervention have robbed its government of any significant capacity to invest in its people or to regulate its economy. Punitive international trade and financial arrangements ensure that such destitution and impotence will remain a structural fact of Haitian life for the foreseeable future.

It is this poverty and powerlessness that account for the full scale of the horror in Port-au-Prince today. Since the late 1970s, relentless neoliberal assault on Haiti's agrarian economy has forced tens of thousands of small farmers into overcrowded urban slums. Although there are no reliable statistics, hundreds of thousands of Port-au-Prince residents now live in desperately sub-standard informal housing, often perched precariously on the side of deforested ravines. The selection of the people living in such places and conditions is itself no more "natural" or accidental than the extent of the injuries they have suffered.

This is absolutely vital, and needs to be repeated again and again. However, from our perspective there is something else that has to be foregrounded, all of this takes place within a context structured by international law and international legal organisations. Here, I think it's useful to turn to Susan Marks' excellent piece 'Human Rights and the Bottom Billion' (2009 European Human Rights Law Review, 1: 37-49). What is vital about this piece is the way in which Marks engages with the types of arguments above (particularly with the work of Mike Davis), but also brings them into engagement with international law literature. She argues, that the conditions and relationships that produce these problems (poverty in her case, but the point holds more generally) are themselves deeply involved with international law and international legal institutions.

How is this borne out in the case of Haiti? Here, I think we have to return to China Mi矇ville's brilliant piece on Haiti 'Multilateralism as Terror'. In this piece, Mi矇ville - engaging with Peter Hallward's work on Haiti - shows the way in which the imperialist-backed coup in Haiti and the consequent destructive occupation was deeply complicit with international law and international lawyers. The coup, and the occupation, are phrased in uncontroversial language of UN Security Council Resolutions and are impeccably multilateral affairs. Of course, we absolutely have to go further than this. The IMF loans, and the brutal conditions that impose upon Haiti (with the attendant poverty exacerbating effects) are the creatures of international legal organisations and international legal regimes.

So 'natural' disasters, are obviously not natural. But when we look to the social context in which these disasters occur and are recieved, we must understand that international law - a constitutive force on the world stage - is a vitally important part of this context.

So, of course, the important thing to ask here is 'what is to be done?'. The absence of any widespread acknowledge of international law's role in 'natural' disasters seems to me to be a symptom of the 'anxiety of influence' that Susan Marks describes in her article 'State-Centrism, International Law and the Anxieties of Influence':

Viewed from this angle, the anxiety of influence felt by international lawyers is a not just a fear of irrelevance but a fear of relevance as well – not just a shock at the recognition of politics in law, but a shock at the recognition of law in politics. If this is right, then what is troubling is not only belatedness, but also primordiality, and not only indebtedness, but also responsibility. John Bolton and Richard Perle may like to think – or like us to think – that international law is irrelevant to the US administration, but John Yoo and Jay Bybee know better. But then, their intricately argued ‘torture memos’ only really confirm what historians can tell us anyway: that empire is a legal construct – not only encumbered by international law, but also partly constituted by it.
p.347

Now, in a sense this is entirely right and it is one of my favourite quotes. But perhaps we need to go a little bit further. Rather than talking about an 'anxiety of influence', might we (and I should thank Akbar Rasulov for pointing this out to me) speak of 'false consciousness' in the sense that Lukacs talks about. This is not the false consciousness of the working class that tricks it into not opposing capitalism, but rather the false consciousness of the ruling class, so as Lukacs says in History and Class Consciousness:

But the veil drawn over the nature of bourgeois society is indispensable to the bourgeoisie itself. For the insoluble internal contradictions of the system become revealed with, increasing starkness and so confront its supporters with a choice. Either they must consciously ignore insights which become increasingly urgent or else they must suppress their own moral instincts in order to be able to support with a good conscience an economic system that serves only their own interests.

I think this is important to note, because it points us to the fact that simply 'revealing' this to international lawyers is not enough. Precisely because of what is at stake here - the very ability for the international legal profession to continue to function qua a profession, 'revealing' stuff is not enough. Moreover (and this is perhaps a more important point), we have to consider those structural factors that intellectually those in the legal profession/academy from taking 'responsibility' for this connection. I've said more about this sort of thing elsewhere but my basic idea is that the shape of the legal form itself - an abstract formal relationship that reveals itself through concrete disputes, tends to abstract these things from their material context.

I think the K-Punk stuff linked to above is good here - in a rather oblique way. I think K-Punk is completely correct to summarise the liberal response to 'natural disasters' thusly:

Now is not the time for political discussion, we'll look at the long-term causes later .... But, since Band Aid this "emergency" temporality has become a permanent state of affairs, allowing neoliberalism to further strengthen its hegemony under the cloak of "post-politics".

I would argue though, that this effect is slightly different. Here, I'd want to draw on the idea of structural and subjective violence. In a sense situations like Haiti are the confluence of structural and subjective violence. There is a violence 'subjective' erruption of immediate violence (like an earthquake) that is recieved and conditioned within relationships of structural violence. What is fascinating is that international law frequently portrays itself as being 'incapable' of dealing with structural violence (and indeed of seeing it). When presented with a problem like poverty etc. in its 'structural' phase, international lawyers will frequently argue that these are problems that are too complex, too big etc. to be tackled by an immediate intervention, but have to move to an - ever-deferred - long time 'progressive realisation'. When the violent subjective erruption happens, this is when 'Band-Aid' politics come into play - abstracting all of these event from their material context.

What is interesting then, that in naturalising structural violence in the first place through the language of complexity etc. international law treats it as a necessary condition - thus it is generative of 'false necessity'. The moment at which the subjective violence occurs, this is rendered as a contigent fact outside of any political or material context.

This is perhaps problematic for a project of 'taking responsibility' for two reasons. Firstly, because the inability to 'take responsibility' isn't just a matter in our heads. It is at least partly generated by a the shape of the legal form. Secondly - and perhaps more importantly - in locating the problem in terms of 'responsibility' we are privileging (I think) writing as the site of political action. But how does 'taking responsibility' for the role of international law's role in imperialism work as a political intervention. Precisely because these issues are structural 'just' recognising things is not enough. If we have identified those structures which produce oppression and exploitation we also have to change, overturn and abolish these structures. As Fanon says (in Black Skin, White Masks):

In other words, the black man should no longer be confronted with the dilemma, turn white or disappear; but he should be able to take full cognizance of a possibility of existence. In other words, if a society makes difficulties for him because of his color, if in his dreams I establish the expression of an unconscious desire to change color, my objective will not be that of dissuading him from it by advising him to “keep his place”; on the contrary, my objective once he motivations have been brought into consciousness, will be to put him in a position to choose action (or passivity) with respect to the real sources of the conflict – that is towards social structures.
p.100

Work showing these connections is important precisely to put people in the position to choose is vital. But that is not per se political. What is political is taking a partisan position within the law - arguing relentlessly and inconsistently for Haiti (principled opportunism) - whilst also struggling for the ulimate abolition of those forms (including law itself) that produce these problems in the first place.

Resolution

So, yeah, as is evident I haven't exactly been a posting machine over the last few months. In my defence I've been fairly busy, but that's not very much of an excuse. So, anyway, I have made a New Year's resolution to try and post much more frequently, we'll see if this actually comes about. That being said, there are interesting things afoot that probably merit some form of reflection, and I have a notebook bursting with the kind of incomplete ideas that beg for blogging.

Schmitt and Space

Today I want to continue my discussion of Schmitt, which admittedly I started rather a long time ago. Now, this discussion has been quite difficult for me to articulate. This is because I had written some fairly comprehensive (and I thought pretty good) notes on these issues in my notebook and then kind of forgot about them (I’d quite like to work this up into an article at some point). Unfortunately, a few months ago (prior to the first instalment of this), I got rather inebriated and left my bag (containing my notebook) on the train. Lost property has not been forthcoming and, as such, I’ve kind of been working from memory. Anyway, this piece is probably best read with my post on Schmitt and appropriation, so keep that in mind.

It’s difficult to know where to start with this, but to recap, according to Schmitt, spatial orders produce legal orders. This is made as a general claim, but I think it useful to see how Schmitt deploys this in the specific case of international law as jus publicum Europaeum (European public law), this is useful because it illustrates the mechanisms by which this functions and allows us to criticise some of ethical Schmittians. Basically, here Schmitt’s argument is that the jus publicum Europaeum was in an inter-state order in which European states were the participants, all of which were treated as formally equal.

The centrepiece of this system was the so-called ‘bracketing of war’. Essentially, Schmitt argues that in the jus publicum Europaeum states in war would treat each other as a justus hostis – a just enemy:

In the 18th and 19th centuries, European international law achieved a bracketing of war. The opponent in war was recognized as a justus hostis and was distinguished from rebels, criminals and pirates. To the same degree war lost its criminal character and punitive tendencies, thereby ending discrimination between a just and unjust side. Neutrality was able to become a true institution of international law, because the question of the just cause, the justa causa, had become juridically irrelevant for international law.
p.309

This had a number of concrete effects: firstly, wars of annihilation no longer tended to happen, since the enemy was always a ‘just’, public enemy as opposed to an absolute one and secondly, these wars would no longer threaten the whole nomos (viz. the spatial order). In international law circles, a lot of people have taken this as being pretty interesting, and used it as a kind of ethical dimension to Schmitt. The argument is often deployed against supporters of humanitarian intervention – who argue that in designating one enemy as being unjust, evil etc. it paradoxically produces wars which are unrestrained.

But this kind of ethical (limited) endorsement of Schmitt is rather undermined by Schmitt’s point as to the spatial foundation of this European order. Essentially, Schmitt argues that ‘appearance of vast free spaces and the land-appropriation of a new world made possible a new European international law among states: an interstate structure’ (p.140). Basically, Schmitt’s argument is that the European inter-state order (and its bracketing of war) depended upon the existence of an area of free space where unlimited war could be displaced:

The significance of the amity lines in the 16th and 17th century international law was that great areas of freedom were designated as conflict zones in the struggle over the distribution of the new world. As a practical justification, one could argue that the that the designation of a conflict zone at once freed the area on this side of the line – a sphere of peace and order ruled by European public law – from the immediate threat of those events “beyond the line,” which would not have been the case had there been no such zone.
p.97

And:

This spatial order did not derive essentially from internal European land-appropriations and territorial changes, but rather from the European land-appropriation of a non-European new world in conjunction with England’s sea-appropriation of the free sea. Vast, seemingly endless free spaces made possible and viable the internal law of an interstate European order.
p.183

So, the ethically valuable justus hostis for Schmitt depended on vast tracts of ‘free space’. And guess what, when Schmitt is talking about ‘free land’ he isn’t talking about uninhabited land. Above all for Schmitt, this ‘free land’ is that of the ‘new world’, viz. land that is inhabited by the ‘uncivilised’. So, for Schmitt, the Westphalian system depends on an imperialist system, whereby certain peoples don’t even merit being treated as an ‘enemy’ but simply inhabitants of ‘free space’.

Evidently, this isn’t great for those who would wish to appropriate Schmitt’s thought. But, beyond this, it is necessary to inquire what exactly Schmitt means by ‘free space’, and how he ascribes this quality to the ‘new world’. Probably the most pertinent thing to note is this:

The struggle for the land-appropriation of the New World and for land still free and outside Europe now became a struggle among European power complexes, which, in this specific sense, are “states”. Whoever lacked the capacity to become a “state” in this sense was left behind.
p.130

Furthermore:

The intellectual advantage was entirely on the European side, so much that the New World simply could be “taken,” whereas, in the non-Christian Old World of Asia and Islamic Africa, it was possible only to establish subjugated regimes and European extraterritoriality.
p.132

This gives us a window to more broadly consider Schmitt’s claim. In a sense, his argument as to the relationship between intra-European relations and imperialism/colonialism mirrors Marxist claims about imperialism. So, the classic Marxist position is (a variant of the idea) that capitalist social relations internal to European states mean that there comes a point when capital must search for new markets (for whatever reason – this can be over-production, under consumption and class struggle), as such it becomes necessary to expand into the peripheries (these may be non-capitalist, semi-capitalist, less advanced etc.). But Schmitt simply doesn’t do this, indeed, as I noted on the previous discussion of appropriation, he really doesn’t think through why it is that Europe seeks to find ‘free space’. So, although he outlines some kind of drive towards this process, he doesn’t really grapple with the question of whether there is any logic to it. An especially useful reference point here is of course David Harvey and his notion of the ‘spatial fix’; here, whilst paying the correct amount of attention to the importance of space, Harvey understands that this is driven by a social logic of capital accumulation.

The notion that we are dealing with a process driven by social relations allows us to interrogate Schmitt’s conception of ‘free space’. In the discussion above it seems like Schmitt is making two points. First, the new world was not composed of states and so is not included in the order, and as such dominated. Secondly, owing to the intellectual and technology difference between Europe and the ‘new world’ Europe could treat the new world as if it was free space. Thus, for Schmitt, ‘free space’ is a kind of social fact, which the law recognises and accounts for. This view is highly problematic for a number of reasons. But two spring to mind immediately, firstly, as Mutua notes (‘Why Re-Draw the Map of Africa?’ (1995) 16 Michigan Journal of International Law 1113, at p.1126), a number of African states met the criteria for statehood, but were nonetheless subject to colonisations. Secondly, the kind of technological determinism Schmitt engages in doesn’t explain why it is the more technologically advanced European states did not dominate less advanced European states.

Thus, there doesn’t seem to be anything ‘pre-given’ about the idea that this is free space. But the notion of the spatial fix helps us see that it is not so much that these spaces were intrinsically ‘free’ and, driven by capital accumulation it was necessary that they be posited as such. The Marxist notion of the spatial fix helps us push this account, inasmuch as it explains the dynamics underlying the creation of ‘free space’ and why certain zones are designated as free. It is here, that some of the positions outlined by Schmitt above can come in; the process of capital accumulation on a world scale necessitates the idea that certain zones be designated as ‘free space’. In practice though, this is going to depend on a number of factors, the level of resistance to the process, the level of development of the country, inter-imperialist rivalry etc. Thus, rather than being an unproblematic ‘fact’ ‘free space’ is a unity of historical, social, political and economic determinations – space is a social relation.

This complexity also underlines another problem with Schmitt’s analysis. As I noted in the piece on appropriation Schmitt occasionally seems to succumb to a positivist temptation of treating law as recognising certain ‘facts’, thus ignoring its constitutive complicity in the creation of such facts. ‘Free space’ is a great example here. In Schmitt’s account, the ‘fact’ of free space (and this is repeated in his considerations of the air and the sea) seems to precede law: law then recognises this fact and is simply not active in those areas of free space (hence ‘beyond the line’ there was no law). But in recognising that there is nothing ‘intrinsically’ free about free space, we understand that its existence is always posited as such, as part of a complex social and political process. But this positing only takes place through the law; the claim that an spatial configuration is ‘free’ is always a legal one – indeed the notion of ‘freedom’ in this respect is legal. It is not enough to say that law isn’t ‘active’ here (since that is likely untrue anyway), since the declaration that ‘different standards apply’ is always a legal one.

Thus, we can see that whilst legal orders are driven by complex spatial considerations (which themselves are driven by processes of accumulation); legal argument is also used to create new assertions of ‘free space’. I think here it is useful to turn to a post I made a while ago – here – on the relationship of particular configurations of imperial power to legal argument. Thus, I would argue that given spatial configurations (understood as driven by capitalist social relations – imperialism) produce distinctive modes of legal argument. But, also, that in so doing imperialists may try and argue for new spatial configurations through the legal form. For, as I have argued time and time again, what is the war on terror if not an attempt to entrench a hegemonic coalition through the articulation of zones of free space? The logic of the war on terror, which tends to promote temporally and spatially unlimited forms of intervention for some states is ultimately an attempt to argue that those states which are not ‘on board’ are ‘free zones’ in which intervention can always take place (witness Pakistan for a great example of this).

Ok, so this is admittedly a bit muddled, and I want to do some more reading, but I do think that bringing Marxists to bear on Schmitt’s framework here does produce something quite useful.

Principled opportunism and natural law jurisprudence

It’s amazing how difficult it can be to make time for blogging. I’ve had a lot on, and frankly sometimes all I want to do after actually doing that stuff is … well … not very much. Hopefully I’ll free a little time up though (although frankly I seem to make this promise every time I make a post). Anyway, I want to finish off my thoughts on Schmitt, but first I’d talk a little bit about something that I’ve been thinking about for a while – namely the relationship between bourgeois natural law jurisprudence, and principled opportunism. This might seem a bit of an odd thing to do, but I actually think that the comparison can be theoretically productive, and helps us see what is useful for us in natural law jurisprudence.

So basically, what I want to argue is that principled opportunism (and the Marxist theoretical approach from which it derives), shares some similar presuppositions to natural law jurisprudence, but from these positions comes to a diametrically opposed practical/political standpoint. Hopefully what this can do is help us grasp some of the really interesting things about natural law jurisprudence (especially some of the more recent stuff) and further illuminate what principled opportunism might mean.

To be brief. Natural law jurisprudence tends to approach law as a specific form of social regulation, with its own identity and dynamics. Generally, natural law jurisprudence sees law as a form of regulation in which abstract, formal equality inheres. The next move, is to tie this social form to some kind of form of life. In Finnis, this form of life is one in which individuals are able to pursue diverse life paths (and thus their own ways of engaging in ‘objective goods’); in Simmonds, the form of law grants individuals a certain degree of ‘distance’; no matter how onerous the burden of law’s content, ones dittoes are not dependent on the arbitrary will of a sovereign, since this is always mediated through abstract, prospective rules that treat individuals as formally equal. In sum (and to be somewhat vulgar), these theories link the form of law with a form of life in which abstract individuals are able to pursue their own projects, viz. an idealised form of liberal capitalism (Simmonds in particular is a bit more complicated than this, but my general point is that law is tied to what one might call ‘liberty’).

The next step in this chain of reasoning is particularly interesting. Essentially, once law is tied to a form of life, this form of life is morally evaluated. Both Simmonds and Finnis (and to some degree one can include Fuller, Aquinas, Locke and even Hobbes in this) argue that this form of life is intrinsically morally valuable, inasmuch as it enables individuals to pursue their interests at some degree of distance from other individuals (etc.). In this respect, the form of law itself is intrinsically morally value, given that it is productive of abstract individual liberty. The brilliance of this move comes when it is juxtaposed to the problem of unjust content.

Essentially, given that the form of law is systemically morally good, the moral value of the legal form exists even when it expresses immoral content. For Simmonds this is because there is still a ‘distance’ between the rulers and the rules and for Finnis, this is because the form of law is supportive of a system of individual liberty. This gives rise to what Finnis calls a ‘collateral obligation’ to obey the law. Essentially, when one decides up whether or not to obey the law, the justice or injustice of its content is not the only factor to be taken into account, this has to be weighed against the intrinsic moral value of the legal form (which is produced by/produces an intrinsically moral form of life). Thus, the form of law is valuable, even while the content is variable. It is a case of form asserted against content.

The obvious interesting point from my perspective is the way in which the natural law approach dovetails with that of Pashukanis. Thus, Pashukanis identifies law with a specific form and ties it with a specific form of social life; which – in a less idealised form – is the same of that the natural law jurisprudes, capitalism. However, there is of course a crucial difference in these approaches, which Nigel Simmonds (who has made extensive and fascinating excursions into the Marxist tradition) sums up quite nicely (‘Between Positivism and Idealism’, (1991) 50 Cambridge Law Journal 308 :

The conservative view of law that I am defending has much in common with Marxism. Yet if differs from Marxism in the evaluation that it makes of law.
p.323

The crucial difference in the Marxist and natural law accounts of the legal form is how they evaluate law and the form of social life it is tied to. Obviously, Marxists are wont to evaluate capitalism of being composed of relations of exploitation and domination, and as a destructive and ultimately (hopefully!) transient phase of human life. I think the crucial move made by Marxists in this respect (and I have elaborated on it more here and here) is that the ‘form’ of capitalism free exchange is structurally tied up with a certain content; it’s not just a case then of the liberal form of capitalism being occasionally confronted with some nasty stuff; but rather that this form systematically throws up problems owing to the realisation of surplus value. Thus, domination, exploitation, class struggles etc. are always produced by the formal equality that characterises capitalism. Chris Arthur puts it rather excellently (in the introduction to the Ink Links Law and Marxism: A General Theory:

From a dialectical point of view a form is the form of its content, and one may be alarmed at the outset if one imagines that Pashukanis proposes to write a treatise on legal forms in abstraction from content. However, this would be a misunderstanding. In characterising law as a bourgeois form he clearly is relating law to a definition material content – the social relations founded on commodity exchange.
p.29

Thus, on this we can reverse the natural law position. The form of law is not something intrinsically valuable, but (if you’ll allow me) quite the contrary, the form embeds relations of exploitation and domination. And this brings us to principled opportunism, and its complete opposition to the collateral obligation. There, the form of law is invoked against unjust content; thus in spite of its content, the form may compel obedience. But in principled in opportunism the content of law is invoked against the ‘unjust’ (for want of a better word) form, and content may compel obedience (or more likely invocation), in spite of the form. In the collateral obligation, law is in principle valuable, in principled opportunism law is ‘in principle’ not, and as such should never be invoked per se.

Schmitt and Appropriation

So a few months ago (!), I finished reading Carl Schmitt’s The Nomos of the Earth (2003 Telos Press), which I have been meaning to do for a long time. As ever, the book has to be read with some caution, as Schmitt’s politics (and even if they aren’t Nazi politics they are massively reactionary politics) inform his argument. Indeed, one of the really interesting things about the book is the way in which (I think) it deals quite a serious blow to the ‘ethical Schmittians’ or those who think we can appropriate Schmitt’s concept of the political for the left.

Anyhow, given that things have been pretty quiet on the blogging front of late (although fear not brave readers, I am finishing work in two weeks, although unfortunately I then need to begin flat hunting – doh!) I thought I might do some posts on Das Nomos, although admittedly looking over my notes I remain uncertain how much of it I actually remember of it. Schmitt’s central and most interesting pre-occupation in Das Nomos is the relationship between ‘space’ (not outer-space but the general kind) and international law. His central contention is that every legal order is based on the appropriation of space.

Although Schmitt’s initial exposition of this claim feels a little mystical, his concrete description of it is pretty interesting. Thus, to take the example of property, Schmitt argues:

But even when the initial land-division establishes purely individualistic private ownership or common clan ownership, this form of property remains dependent on the common land-appropriation and derives legally from the common primeval act. To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognizes completely “free” private ownership of the individual.
p.48

This is a fairly brilliant point (and one which should make libertarians etc. think). Every legal conception of property has to begin with some collective which has ‘collective’ ownership of the land, which can then be parcelled out in whatever way is seen fit. This problem is very obvious in – for example – Locke; who has to rely on religious argument as a background to his stuff about individual appropriation.

This is also useful insofar as it continues and deepens Schmitt’s critique of legal positivism. Schmitt’s classic argument (although I can’t find a reference to hand) is that positivists deny the violence of law’s founding moment by always treating it as pre-supposed, as a fact which has no relevance to the continuing existence of a legal system once it has come into being. But of course, with this perspective here, this ‘founding moment’ is constantly there, always hovering as the essential legitimating ‘fact’ which determines every individual proprietorial dispute.

Later (and this is something I will explore in another post) Schmitt goes further than this, arguing that different spatial configurations produce different types of legal orders. But one thing I want to flag up here, and it’s something I will return to later, is that whilst Schmitt does better than classical legal positivism in pushing forward legal theory, I would argue that he doesn’t go far enough (or if he does, then he goes in the wrong direction).

This is because, for all his posturing, Schmitt treats appropriation as a ‘fact’. Thus, in his appendix to the book, Schmitt attempts to extend his legal theoretical position into one with larger aims, he firstly argues:

Each of these three processes – appropriation, distribution, and production – is part and parcel of the history of legal and social orders. In every stage of social life, in every economic order, in every period of legal history until now, things have been appropriated, distributed, and produced. Prior to every legal, economic and social order, prior [327] to every legal, economic, or social theory are these elementary questions: Where and how was it appropriated? Where and how was it divided? Where and how was it produced?
p.328

Immediately, then, we can see that it might be said that Schmitt has succumb to the positivistic temptation. When is there ever a period that is prior to every ‘economic and social order’? Appropriation will always take place in an always already existing set of social and economic circumstances. Although this might not seem that important, it is essential when we consider Schmitt’s move with appropriation. Here Schmitt argues:

The history of peoples, with their migrations, colonizations, and conquests, is a history of land-appropriation. Either this is the appropriation of free land, with no claim to ownership, or it is the conquest of alien land, which has been appropriated under legal titles of foreign-political warfare or by domestic-political means, such as proscription, deprivation, and forfeiture of newly divided territory. Land-appropriation is always the ultimate legal title for all further division and distribution, thus for all further production.
p.328

So for Schmitt appropriation always has primacy. He can treat it like this because he isolates appropriation from its social and economic context (which it apparently precedes). As such, he doesn’t have to answer the stunningly obvious question as to why appropriation proceeds in a certain way. Such a move can also be seen in the left attempts to appropriate Schmitt’s legacy. A recent example of this is Susan Buck-Morss’ article ‘Sovereign Right and Global Left’ ((2007), 19 Rethinking Marxism 432-451), in this article she articles that the Marxist conception, placing modes and relations of production in the driving seat, is inferior to the Schmittian conception, which recognises appropriation, and the political as ‘prior’ and determining of these. But of course in actual fact, people don’t just ‘appropriate’ for the hell of it, they are driven by wants, needs, requirements etc.

The only way to avoid this particular recognition (that appropriation is itself driven by social relations of production etc.) is do what I think Schmitt does. This is to adopt what one might call (although I think incorrectly actually) some kind of Hobbesian position, whereby human beings are ‘naturally’ covetous, and so constantly seek to appropriate more and more. To be honest though, Schmitt doesn’t even have the courage of his convictions on this point, adopting instead a boringly liberal position and arguing:

All efforts to abolish war immediately are thrust into the context of three great substantive problems, which are more political than juridical if one chooses to make a distinction between juridical and political: security, disarmament, and peaceful change.
p.275

Of course, this would seem to fly in the face of the claims as to the centrality of appropriation in ‘the history of peoples’, given that apparently non-peaceful appropriation can be stopped simply through disarmament, security etc. You may have noticed that when I criticised Schmitt for treating appropriation as somehow ‘prior’ to everything else I didn’t mention law. This was deliberate because it is slightly more problematic. Firstly, I think it’s easy to imagine a point at which there wasn’t law, and specifically, that appropriation could occur in a way that was prior to the existence of a legal system (in a way that simply isn’t possible with the notion of economy or society broadly conceived). Secondly, Schmitt does deal with the way in which appropriation is regulated by law at various points. Indeed this is quite a telling point against him, clearly – especially in the ‘modern age’ – appropriations take place within an already existing framework of law – both national and international – and are usually conceived in legal terms.

So, where does this leave us? I think it is fairly unsustainable to claim that appropriation is some kind of independent, founding moment – given that appropriations always take place within, and are driven by, social, economic and legal relations. Thus, whilst appropriation may well be a vital part of human existence, and have especial relevance for the law it is driven by something else. This also helps us see another flaw in what Schmitt is saying. Once we stop treating appropriation as some kind of independent variable, we also move away from the idea that it is appropriation is in any way a unitary, unchanging ‘act’ that is remains similar across different epochs of human life and modes of production.

Thus, what we might look at is the way that appropriation – an act which is of course structured by the law – changes with different modes of production. So, what is especially relevant for us, is that we can see the specific legal form of appropriation capitalist international law is one centred on capital accumulation. Thus, appropriation is driven by the social relations of capitalism – internationally this is of course imperialism and capital accumulation – (although this is dialectical of course, because appropriation of ‘raw materials’ – as it were – given rise to modes of production) and as such reflects this. This gives us a way into examining the insights of TWAIL, insofar as we can see that the law of appropriation is structured by the core-periphery divide, which is itself produced by the imperatives of capital accumulation.

And what is especially important about capitalist accumulation is its ‘infinite’ character. Because of course, since capital only exists to realise itself, over and over again, capitalist appropriation is of an unlimited and continuing character. It is here that we can properly (following Arendt in particular) situate the Hobbesian depiction of the never-ending appropriation of the war of all against all. As such, we might say that Schmitt’s foregrounding of appropriation acquires some validity when understood as some proper to capitalist imperialism. Yet without understanding the social relations that give rise to this specific form of appropriation Schmitt’s theorisation will always be inadequate.

What we have here is an account of appropriation which sees it as driven by an embedded in the social relationships of its time. Specifically with international law, we can see how the legal argument that constitutes appropriation is shaped by the demands of capital accumulation. In my next post I want to extend this examination into Schmitt’s conception of free space. Hopefully, at the end of this we’ll be able to arrive at a conception that preserves Schmitt’s insistence on the importance of space to legal argument, but moves beyond this insofar as space is seen as a social relation.

Anti-terror and racial balance

So presumably, people have heard the hilarious news that police are stopping and searching white people under anti-terror laws so as to 'balance' racial statistics. Now, I have to say that this does confirm some of the anecdotal evidence I have heard from various people. What I find very interesting is Lord Carlile's response to this. Whilst he is obviously right to say that this is frivolous, bad etc., I find his particular reponse to be very telling:

"I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop."

And what does he mean by 'any known terrorism' profile? Well, of course it is Islamic extremism, thus Carlile opines:

If, for example, 50 blonde women are stopped who fall nowhere near any intelligence-led terrorism profile, it's a gross invasion of the civil liberties of those 50 blonde women.

(So interestingly this is another bit of evidence as to how much the war on terror stuff is massively racialised - since one need not be brown to be a Muslim). But, for those of us not priveleged with being white being stopped and searched is perfectly fine and indeed does not seem to 'invade' our 'civil liberties' at all:

"The police are perfectly entitled to stop people who fall within a terrorism profile even if it creates a racial imbalance, as long as it is not racist."

What else could be racist in this context? In terms of institutions there can be no other definition of racism. And in terms of individual stops and searches, what possible way is there to judge whether a specific search is racist or not, given that all such searches are apparently prima facie valid? Indeed, the reports abound with such ridiculous ideas, perhaps most amusing is:

Former British diplomat Sir Edward Clay told BBC Radio 4's The World Tonight programme he was subjected to a stop and search five weeks ago while on his way to work at the National School of Government, near Victoria Station in central London.

He said he had found the experience "sinister" and "intimidating". He told the programme: "I'm 63, I'm a grey-to-brown-haired white male, I'm 5ft 10 ins tall, looking extremely conventional."

Or, to translate 'but I'm white!'.

I seem to have gone off on a bit of an unstructured rant here. But I think this links quite interestingly to something I said a while ago about liberty, security, Marx and race. Essentially, I noted that in human rights rhetoric (and often its delpoyment) there is a dialectic between liberty and security. Liberty is the ultimate goal, but some people use this liberty to undermine liberty, so this means that we have to bring in 'security', which means:

This amounts to saying: the right to liberty ceases to be a right as soon as it comes into conflict with political life, whereas in theory political life is no more than the guarantee of the rights of man – the rights of the individual man – and should, therefore, be suspended as soon as it comes into contradiction with its end, these rights of man.

But I noted that in practice this isn't some kind of irresolvable dilemma. The deprivation of liberty is always focused on some particular - often racial, often political - group. The above illustrates this really rather well. The fact that a blonde woman being searched must be a violation of her civil liberties, whereas a black man being searched just because he is black (and so fits the profile) apparently can't have his civil liberties violated shows us the way in which this dialectic plays out.

Multilateralism as Terror

Courtesy of Birkbeck's e-print service I'm pleased to finally be able to link to China Mieville's most excellent article 'Mulitlateralism as Terror: International Law, Haiti and Imperialism'. I'd suggest that everyone read this as it provides a neat and elegant summation of China's view on the intimate (indeed structural) relationship between law, imperialism and power; the legal character of the war on terror etc. and the consequent uselessness of opposing these actions with war. All of this is beautifully illustrated through a (fascinating in its own right) exploration of the UN intervention in Haiti.

All of this is very salutary and even if one doesn't agree with Mieville (as people may have gathered, I largely do, though we have our differences) his perspective has to be taken seriously. Indeed I think this article is probably the most advanced example of a recent trend with a few critical international legal scholars who insist on examining the ways in which imperial power structures and is structured by law and legal argument.

As if that wasn't enough, from page 43 onwards Mieville develops his understanding of imperialism and international law. Thus:

‘American interests and power’, however, are of course not abstract (though they often appear so in the realpolitikal discourses of both the right and of liberalism): in the modern epoch they, and the imperialism of which they are another way of speaking, are functions of competitive accumulation in a framework of capitalist states. It is not only a belief in the efficacy of this imperial methodology that motives the widespread, untheorised, often unspoken, and unproblematised mainstream support for the Haitian coup: it is also its specific fruits and the sectors of capital that benefit from it.

Mieville proceeds to show us how this perspective can be deployed in the Haitian situation. Moving to the general level he unearths an extraordinary quote from Carla Del Ponte where - speaking to Goldman Sachs - she argued that capital should back international criminal justice because 'I can offer you high dividends for a low investment':

Del Ponte is quite right to point out IL’s role in capital accumulation. Contrary, however, to her line that it is solely as a maintainer of ‘good governance’ and peace that IL performs this function, Haiti illustrates that IL can also do the job efficiently through the propagation of instability and the unleashing and legitimation of murderous violence.

Theorising international law in terms of enabling capital accumulation is a brilliant theoretical move, which can fruitfully be combined with Harvey's concept of accumulation by dispossession and Klein's work on the Shock Doctrine. Indeed, I think this might also provide us with a useful corridor into the work of Third World scholars. Historically, we can see that international law - in interpellating certain territories as non-civilised (or semi-civilised) - enabled primitive accumulation (and Marx can be usefully brought in here). But the Third World scholars have shown us that this relationship is reproduced in contemporary international law, understanding this we can map this onto the core-periphery distinction and capital accumulation more generally helps us theorise this process in a way that TWAIL scholars avoid. We can also examine different articulations of legal arguments (and their predominant forms) in terms of strategies of accumulation, which are structured by specific imperial relations.

I really can't do the article justice, and I suggest you read it forthwith, not least for its skewering of the Obama dream in international law.

Update

Hola comrades.

Sorry for the extended silence, but things have been afoot. Although I largely don't talk personal stuff on the blog, I thought I'd give some updates on what I've been doing etc.

• I have an article forthcoming in the September issue of the Leiden Journal of International Law entitled 'Marxism, International Law and Political Strategy', which is largely an engagement with China Mieville's work and some (very familiar to readers of this blog) reflections on the role of law in revolutionary strategy.
  
• I'm currently doing a temporary job which has sucked up quite a lot of my time (which is one of the main reasons why I haven't posted that much)
• Thankfully the above will come to an end soon because I can confirm that next year I will be doing a PhD at LSE, and so will hopefully have a chunk of free time to write stuff.
  

There's other stuff too, obviously, but these are some of the more significant (and less revealing things). Fear not though, I'll try and do some posts on an ad hoc basis. These are likely to be pretty short reflections etc., which no one will read but hey - it will keep me vaguely entertained.