Introduction
China Mieville’s Between Equal Rights: A Marxist Theory of International Law is a fully-fleshed out application of Evgeny Pashukanis’s commodity-form theory to the domain of public international law. In order to do this, Mieville has to address the following challenges: first, given that the commodity-form theory takes the contract (and the contractual dispute) as the constitutive unit of the legal form, how does it work in domains of law that are not about contracts (as we have seen in the previous post, this is a challenge faced by any scholar working with the commodity-form theory in non-private law domains, such as criminal law)?; secondly – and this is a challenge specific to international law – how does this work in the absence of the state form as the arbiter of legal disputes? And thirdly, how can we transplant Pashukanis’s legal subject (the formally free, property-owning individual who faces formally equal individuals and develops relationships through the vehicle of the contract) to states?
Mieville’s answers to these challenges are interesting both because they demonstrate the explanatory breadth of Pashukanis’s theory, but also because – in clarifying parts of the theory itself, through its working – they show the potential application of the commodity-form account to other domains of law as well.
A Pashukanist Theory of International Law
Between Equal Rights ranges across a fine-grained reading of Pashukanis, excursions into the history of public international law, conceptual debates around the origins of capitalism and state-formation, and more. This movement through both temporalities and methodological approaches makes isolating the grain of the argument something of a challenge, but here is my best-attempt reconstruction of it.
At the most abstract level, there is a straightforward analogy between Pashukanis’s account of private law and the legal subject, and public international law. Pashukanis’s individuals – legal subjects – are formally free and equal, and the legal relations between them are premised on this formal freedom and equality. In the domain of international law, states – too – are formally free and equal. This state of affairs was not always guaranteed, of course, but culminated in the 20th-century decolonisation process, and the elevation of state sovereignty as one of the constituent units of public international law. And, much like the formal equality of individuals under private law mystifies their substantive inequality, the formal equality of states masks substantive inequalities (which shape the nature and content of the agreements that these states enter into with each other). Mieville argues:
The fundamental subjects of international law are the sovereign states, which face each other as property owners, each with sole proprietary ownership over their own territory, just as legal subjects in domestic law face each other as owners of commodities. (p. 292)
This is where the similarities end. Recall that for Pashukanis, the constituent element of the legal form is the lawsuit, where the “equal and opposite interests” of juridically free and equal individuals become most manifest. There is of course no parallel in the domain of international law, because there is no equivalent of the state as an arbiter of competing legal claims.
Mieville answers this by arguing that the existence of the state form is not a necessary but only a contingent element of Pashukanis’s commodity-form theory:
Most of the claims made in his [Pashukanis’s] chapter on ‘Law and the State’ are historical and more or less contingent, rather than rigorously logical and necessary. For example: ‘thanks to its new role as guarantor of the peace indispensable to the exchange transaction, feudal authority took on a hue which had hitherto been alien to it: it went public’. This may be so, just as it may be that feudal power’s new role as an abstract state made it peculiarly suited to be the arbiter of laws, but this is not a statement about the necessity or derivation of the bourgeois state form. (p. 124)
What happens in the absence of the overarching state form as the arbiter of competing juridical claims? It is the parties themselves who determine both the existence and content of the norm and the question of its violation. This has always been how international law has developed, from the early days of lex mercatoria (where it arose out of a set of mutual trading relationships), to the arguments around the freedom of the seas in the works of Grotius and his compatriots, to the present day debates around decolonisation and the use of force. It is this trajectory that gives the book its title: “between equal rights” is part of a longer sentence by Marx, while discussing the struggles between 19th century capitalists and workers over the length of the working day. Marx’s full paragraph reads:
The capitalist maintains his rights as a purchaser when he tries to make the working-day as long as possible, and to make, whenever possible, two working-days out of one. On the other hand, the peculiar nature of the commodity sold implies a limit to its consumption by the purchaser, and the labourer maintains his right as seller when he wishes to reduce the working-day to one of definite normal duration. There is here, therefore, an antinomy, right against right, both equally bearing the seal of the law of exchanges. Between equal rights force decides. Hence is it that in the history of capitalist production, the determination of what is a working-day, presents itself as the result of a struggle, a struggle between collective capital, i.e., the class of capitalists, and collective labour, i.e., the working-class. (Capital, Vol. 1)
In other words, when capitalists and workers face each other as formal juridical equals, each standing on their respective subjective rights, it is force (i.e., the organised power that each can bring to bear) that decides the question (culminating, for example, in legislation that limits the length of the working day). The crucial point that Mieville makes is that the existence of the state form as the arbiter of claims in the domestic context often mystifies the nature of this conflict, while its absence in the international context makes the conflict appear starker; in both cases, however, the underlying legal form remains the same.
This leads Mieville to the most important conceptual and political conclusion on the book, which is that coercion and violence are baked into the structure of public international law, and they stem from the legal form. Conflict and violence are inherent in the very nature of the legal form that puts formally equal but substantively unequal property-owning parties into confrontation with each other, and that conflict is only more visible in the international domain. This flips the traditional view that international law is meant to resolve violent conflict (what Koskenniemi wryly referred to as the “gentle civiliser of nations”), and that conflict in the international order exists when powerful countries refuse to follow international law, and there is want of enforcement. If Mieville is right, however, then violence is a constitutive element of international law, and not evidence of its failure It is this that leads him, in his concluding chapter, to deny the emancipatory potential of the legal form in both the domestic and the international context, while allowing for the possibility, of course, of individual victories.
There are a few other corollaries of the argument as a whole. Mieville argues that the extension of the legal form to international legal relations requires a rethinking of the separation of the economic and the political under capitalism. The separation of the economic and the political presumes the existence of the state form that is the axis of the division. Naturally, this does not exist in international law. Mieville therefore argues that much like the state form, the separation of the economic and the political is also contingent, and not necessary, to capitalism:
… the separation of economics and politics – the market and coercive violence – is not constitutive of capitalism, and that the tendency toward their separation is set about by countertendencies. The economic in the political of mercantilism is the flipside of the political in the economic – the commodity – in international law. (7)
The Counter-Tendency
Whatever one’s position on the separation of the economic and the political, I suggest that Mieville’s theory provides some generative ideas for thinking through the potential of the commodity-form theory to explain the contemporary legal landscape.
The concept of the counter-tendency is crucial to Mieville’s theory. He argues that one reason why Pashukanis himself is unable to satisfactorily extend the commodity-form theory substantively beyond private law is his “his occasional failure to fully appreciate the contradictory, dialectical moments present in the commodity or legal relations.” (p. 113) Mieville illustrates this through a fascinating discussion of developments in anti-discrimination jurisprudence:
… administrative rules are law, in that they take the legal form. They attempt, in their very particularity, to approximate the abstraction of the legal form. This can be seen in the peculiar dialectic between ‘particularism’ and ‘abstraction’ in anti-discrimination legislation – public, administrative, law. Even when it is apparently providing real or specific justice for deprived groups in society, the state always maintains the legal form, and its justice is always formal. A clear example is the legislation to promote equal pay for women. . . . ‘The tribunals . . . treat women as a series of individuals, each the subject of a formal right to equal pay. But the concrete means for establishing the equality of female to male labour, a comparison required by the law, are conspicuously absent, and there is no provision for dealing with concentrations of female labour in a limited range of low-pay occupations.” (p. 110) (internal citations omitted)
For Mieville, therefore, anti-discrimination law is marked by a dialectical movement between abstraction (which is the defining feature of classical capitalist relations, expressed through the contract) and particularisation (where the specific characteristics of individuals and groups are sought to be taken into account).
So far, this might sound similar to Polanyi’s idea of the double-movement or Alan Norrie’s demonstration of how the moral and political questions that criminal law seeks to exclude in favour of a formal view of the abstract individual keep coming back in through the evolution of legal doctrine (discussed in the previous post).
However, where I think Mieville takes one step further is in noting that this dialectical movement can be subsumed within the legal form without substantively threatening it: this is something that comes through in the last bit of the quoted text, where equal pay doctrine is impervious to why there exists a “concentration of female labour in a limited range of low-pay occupations” (the reasons for that, of course, cannot be divorced from the critique of political economy).
An example of this, I think, is most starkly visible in a case that is an exemplar of particularistic reasoning in anti-discrimination law, the South African Constitutional Court’s Mahlangu judgment. I have discussed this judgment elsewhere as one that represents both the possibilities and the limits of recognising class in constitutional law adjudication. In Mahlangu, the exclusion of domestic workers from South African social security law was held to be unconstitutional, on the basis of a detailed intersectional analysis where the Court found that domestic workers – f0r reasons embedded in apartheid-era political economy – were overwhelmingly black, female, and poor. The law was struck down on equality grounds, but of course – to draw an analogy with the quote above – the court did not and could not do anything about the trigger for the conflict in the first place, which is the overwhelming presence of economically disadvantaged black women in this specific low-paid industry. Further, the court’s remedy – that is, inclusion into the regime of social security – was to bring this constituency of workers into parity with other constituencies: that is, assimilate them into the regime of formal wage-work. In other words, the particularism of the intersectional analysis was in service of assimilating one set of workers within the abstraction of the category of worker tout court.
It is therefore, I think, not coincidental that the primary driver of the evolution of equality and non-discrimination doctrine – across countries – has been workplace disputes. When courts develop increasingly complex – and particularistic – doctrines of non-discrimination (indirect, structural, intersectional), this is instrumental to assimilating these workers into the overarching category of the abstract, juridically free and equal contracting individual. Mieville sums up neatly:
Administration addresses a specific inequality through an attempt to formalise the marginalised group as equal. The attempt is therefore to solve a particular problem through the subsumption of a particular category – here women – into a formal, abstract, juridical one, to insist upon its abstract equality … with a similar reaggregation of the particular and the abstract, the Marxist legal theorist Howard Engelskirchen has criticised the argument that antidiscrimination legislation represents a curtailment of freedom of contract. Instead, he argues that it is ‘an expansion of bargain disembarrassed by historical baggage in no way intrinsic to its functioning’. (p. 111 – 112)
I would suggest – tentatively, for the moment – that this is a persuasive way of understanding elements of modern constitutional law that seem at odds with Pashukanis’s understanding of the abstraction and formal equality on which the legal form is based. It is the doctrine of equality/non-discrimination that poses the most significant challenge to Pashukanis, because it self-confessedly takes substantive inequalities into account. In previous posts, I have thought of such doctrines in terms of either the double-movement or an indirect entrenchment of the legal form; I think that Mieville’s formulation of the dialectical counter-tendencies that nonetheless continue to be subsumed within the legal form take us one step beyond this binary:
The movement is therefore a constant spiral – or, better, a vast proliferation of spirals, a fractal: administration picks at specific problems, abstracts them within the legal form, thus inevitably leaving particular lacunae or creating new problems that cannot be solved by those moments of abstraction, to be dealt with by the next wave of administration, in response to class conflict. (p. 112)
The state form
Although Mieville insists that the state form is not essential to the legal form, his historical account of the development of international law provides an interesting foil to think about the role of the state in domestic law. Both the Westphalian moment – and, subsequently – the moment of decolonisation are significant historical landmarks in the evolution of international law. On the Westphalian moment, he notes that:
… the strengthening of the states and the state system led to a strengthening of the international legal order in which those states were conceived of as abstract juridical subjects – and this was an equalising tendency. (p. 190)
And on decolonisation:
As Benedict Anderson argues, ‘[t]he “last wave” of nationalisms, most of them in the colonial territories of Asia and Africa, was in its origins a response to the new-style global imperialism made possible by the achievements of industrial capitalism’. That capitalism is a system of juridical abstraction, which explains the particular shape nationalism took:195 anti-colonial movements became the culmination of the long-term tendency toward universalised juridical sovereignty, and the international law of which sovereign states are the subjects and agents. (p. 266)
He specifically notes how self-determination movements end with a limited choice between “alternatives that are state-centred’ (‘self-determination as independent statehood, integration with an existing state, or free association with an existing state’)” and “the ‘favour[ing of ] territoriality over other forms of identity’” (p. 270, internal citations omitted).
This account is generative because it demonstrates the evolution of the concept of sovereignty from the other side – that is, the international law side – and, in particular, how that evolution is directly linked to capitalist accumulation. It is that unified, indivisible notion of sovereignty that then serves as the basis for the separation of the economic and the political within the domestic order (this separation would be far more complicated if sovereignty itself was divisible).
The next move that then occurs in the domestic context, of course, is equating this indivisible sovereignty with an indivisible “the People”, the first addressee of a modern constitution. This is a move that not only mystifies the class character of modern society, but also then becomes a stand-in for various further concepts – the “public interest” or “public order.” Then, the same, undifferentiated notion of “the People” or “the public” does the mystificatory work in order to continue to secure the conditions for accumulation, by limiting individual freedom at the point at which it conflicts with “public interest” or “public order.” While we can arrive at these conclusions independently, examining them from the framework of the evolution of public international law allows us to see the mechanics of how they come to be.
Conclusion
Between Equal Rights is a persuasive extension of Pashukanis’s commodity-form theory into the domain of public international law. In doing so, Mieville illustrates how some of Pashukanis’s original conceptual categories may need a degree reworking in order for it to play the expansive role that Pashukanis envisaged for it (the concept of the counter-tendency is particularly important here); but he also illustrates the co-dependence of the domestic and international spheres in the overall evolution of capitalist social relations and the legal form.
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