Evgeny Pashukanis: Commodity-Form Theory of Law

Key Concept Whether one believes that law is provided by God (Natural Law), is created by human intellect (Positivism), a gendered institution perpetuating patriarchy (Feminism) or the maintainer of the status quo against marginalised groups (Critical Legal Studies), undergirding those beliefs is the assumption that law is autonomous. In its autonomy, law operates as an impartial arbiter of “right”. Law sustains society through universal regulation. Law is considered autonomous because it is considered to have a “mind/logic” of its own. However, for Pashukanis and Commodity-Form Theorists such as Isaac D. Balbus and China Miéville law slaves for Capitalism. The state as an organization of class domination, and as an organization for the conduct of external wars, does not require legal…

Trials Begin in Turkey for Academics for Peace

International solidarity is crucial at this time when our colleagues are facing criminal trials. On December 5, 2017, the trials began for those who signed the Academics for Peace petition in January 2016. Conducted by High Criminal Courts in Istanbul, these trials focus on a single individual at a time. Currently 148 trials are scheduled through to May 2018, with new hearings expected to be announced in the coming weeks and months. But the indictment is the same for all of them. Each signatory is charged with “making propaganda for a terrorist organization” and if found guilty, each will face a prison sentence of up to seven and a half years. In the petition entitled “We will not be a…

Martti Koskenniemi: Indeterminacy

Key Concept In From Apology to Utopia (1989), the Finnish jurist and former diplomat Martti Koskenniemi presents his thesis on international law’s fundamental indeterminacy. This would come to epitomize a critical moment in international law. Rather than repeat the classical legal view concerning “relative indeterminacy” (where, in some difficult but marginal cases there might not be one correct understanding, “rule-making authority must exercise a discretion” [Hart: 128]), Koskenniemi claims that indeterminacy cannot be reduced to an external distortion. It does not refer to difficulties in the application of international law arising from the semantic ambiguities of legal rules or to the ambivalences of legal argument or the inconsistencies in conceivable legal interpretations. In the end, indeterminacy, a variously applied trope…

Trump’s Upside Down

We have not lately – not until Trump’s election – seen or heard the dog whistle politics of racism, sexism, Nativism, and homophobia so eagerly thrust aside by a Presidential candidate and, with such glee: traded for openly racist invective, division, misogyny, nativism, and more… It is no accident, as the historians love to say, that this past television season, the breakout show was Stranger Things, which I watched and loved, along with many of you, I am sure. Stranger Things is a romp through 80’s nostalgia, from Steven Spielberg’s E.T. to Alien and more. Aspects of the 80’s for which I myself am less nostalgic were also peddled by the show – in particular the Reaganist antipathy to government, as…

Is Fascism Making a Comeback? (Part II)

Continuing the reposted series from State of Nature, the question is whether Fascism is making a comeback? Laurence Davis Seventy-two years after the end of World War II, the spectre of fascism is again haunting the globe. The important questions we should be asking are why, and what can be done about it. The evidence of history suggests that fascism thrives in periods of severe capitalist crisis by redirecting fear and anxiety about socioeconomic dislocation onto easily scapegoated ‘outsider’ groups, who must be brutally repressed in order to reaffirm society’s ‘natural’ hierarchies and enable national rebirth. Just as Mussolini and Hitler capitalised on the economic and political crises of their time, so too contemporary fascists are endeavouring to tap into…

Is Fascism Making a Comeback? (Part I)

Each month, the wonderful State of Nature blog asks leading critical thinkers a question. This month that question is Fascism. Chiara Bottici In fact, fascism has never gone away. If by fascism, we mean the historical regime that created the name and embraced the ideology explicitly, then we have to conclude that the concept is only applicable to the political regime that reigned in Italy between 1922 and 1943. This, however, amounts to little more than a tautology: ‘the Italian fascist regime’ = ‘the Italian fascist regime’. History clearly never repeats itself, so any attempt to apply the category of fascism outside of that context would be doomed to fail. That may be a necessary cautionary remark for historians, but…

The Politics of Recognition and the Limits of Emancipation through Law

There is much to celebrate about the BVerfG gender recognition decision. The court held the sole availability of M/F gender markers, combined with the obligation to register a gender, to be unconstitutional as it violates the right to ‘positive recognition’ of the intersex claimant’s gender. It asked Parliament to resolve the situation by either adding a 3rd gender option (inter/diverse) or scrapping gender registration altogether, by end 2018. Intersex erasure is a serious issue, and 2017 could go down in history as the year intersex reached a tipping point of visibility: supermodel Hanne Gaby Odiele comes out as intersex in the US Teen Vogue, generally intersex activism is picking up media time around the world, and now Vanja has won…

Statement by Legal Scholars and International Lawyers Against Holding ESIL Forum at the Hebrew University in East Jerusalem

To add your name, please email: palpetition17@gmail.com. The statement is open to all law academics and international lawyers. You do not have to be a member of ESIL or based in Europe to sign. The European Society of International Law (ESIL) is holding its Research Forum at the Hebrew University in February/March. Ten Palestinian human rights organisations have condemned this decision calling on ESIL to reconsider its decision and urging international lawyers and academics to not participate in this event. Explanatory Note Location of the Hebrew University During the 1948 war, it was agreed between the Israeli and Jordanian military commanders that the Mount Scopus area, which included the Hebrew University (HUJI) buildings, would be a demilitarised zone. After Israel…

Welcome to the Molysmocene

As environmental law reveals, we now live in a new era: the Molysmocene, a geological era shaped by human waste and its management. The climate talks of 6–17 November 2017 in Bonn are now over. This 23rd Convention of the Parties of the United Nations Climate Change Conference (COP-23) was tasked with the implementation of the Paris Agreement, which entered into force on 4 November 2016. Despite the renewal of past commitments rebranded as new alliances [see the “Powering Past Coal” initiative led by Canada & the UK; the transfer of the Adaptation Fund from the ineffective Kyoto Protocol to the Paris Agreement], the COP-23 has failed to match global environmental commitments with a commensurate action plan. Little has been achieved…

Michel Foucault: Discourse

Key Concept The idea of discourse constitutes a central element of Michel Foucault’s oeuvre, and one of the most readily appropriated Foucaultian terms, such that ‘Foucaultian discourse analysis’ now constitutes an academic field in its own right. This post therefore sets out to describe Foucault’s notion of discourse, and to define in broad terms the task of Foucaultian discourse analysis. Foucault adopted the term ‘discourse’ to denote a historically contingent social system that produces knowledge and meaning. He notes that discourse is distinctly material in effect, producing what he calls ‘practices that systematically form the objects of which they speak’.1 Discourse is, thus, a way of organising knowledge that structures the constitution of social (and progressively global) relations through the…

Michel Foucault: Archaeology

Key Concept In 1968, Jean Hyppolite,1 chair in ‘The History of Systems’ at the Collège de France, died. By 1970, Michel Foucault had been elected into Hyppolite’s vacant position, as the Chair of ‘The History of Systems of Thought’.2 It was a position he, too, remained in until his death in 1984. But it was a title, unlike many others, that Foucault readily accepted.3 Moreover, it was a title which stood at the midpoint between his work on archaeology and that of genealogy, two concepts he developed as tools to for conducting a historical analytic. This post sets out Foucault’s ideas on archaeology. Foucault’s notion of archaeology can be broadly understood as an analytical tool for uncovering alternative and disturbed…

Private Security: Twin Indignities

The privatisation of criminal justice practices is an affront to human dignity. When we are acted upon for profit as well as for justified ends, the proper link between coercion, rights, and authority is lost. Ministry of Justice proposals could mean that all collection of court fines — powers normally exercised by Civilian Enforcement Officers, employees of HM Courts and Tribunals Service — will be granted to private contractors. There is extensive evidence of how private contractors (principally G4S, Serco, and Sodexo in the UK) are both systematically failing in the provision of public services and are too big to fail. Despite high-profile cases of failure in standards, of deaths in custody, misuse of restraint techniques, provision of abhorrent accommodation conditions,…

Britain: The Empire that Never Was

Why Brexit is the culmination of a British national project which weaponises imperial amnesia and nostalgia. Brexit sold the country a dream; ostensibly a project built on anti-migrant sentiment, it also invoked delusions of grandeur, rooted in reanimating the glorious days of imperial rule and global British hegemony. Prime Minister Theresa May’s Brexit speech announced a vision for a ‘Global Britain’ – ‘a great, global trading nation that is respected around the world and strong.’ Boris Johnson, Secretary of Foreign Affairs, hammered home the image of an ‘astonishing globalism, this wanderlust of aid workers and journalists and traders and diplomats and entrepreneurs.’ In a speech promoting ‘Global Britain’ to the Commonwealth trade ministers’ meeting, Secretary of International Trade Liam Fox…

Radicalizing Women’s Rights Internationally

The recent “burqa bans” in Austria and Quebec appear to be troubling legal manifestations of the rising tide of Islamaphobia in Europe and North America. The news coverage of the bans coincided for me with a bout of reflexive angst regarding the recent publication of an article on Shari’a based reservations to CEDAW. I wrote the article years ago while working in women’s rights as a non-Muslim in Egypt and having to struggle with problems of the intersection of international law and religion. The desire to further crystallize assumptions behind my approach and articulate the politics of my position prompted this reflection. My feminist approach aims at the perpetually shifting mark of solidarity with women across borders and in very…

Sustaining neoliberal capital through socio-economic rights

In a 2013 contribution aimed at influencing the post-2015 development agenda, seventeen UN Special Rapporteurs recommended that the Sustainable Development Goals (SDGs) should include a goal on the provision of social protection floors. In April 2015 the UN Committee on Economic, Social and Cultural Rights (CESCR or the Committee) issued a Statement on ‘Social protection floors: an essential element of the right to social security and of the sustainable development goals’. In September 2015 the SDGs were adopted by the General Assembly with the first Goal to ‘End poverty in all its forms everywhere’. Among the key SDG tools to achieve that noble objective is the target to ‘Implement nationally appropriate social protection systems and measures for all, including floors,…

The Fallacies of Neoliberal Protest

This post is an amended version of remarks read at a rally organized by Cornell University’s Black Students United (BSU) on September 23, 2016. Students gathered to protest the recent police shootings of Tyree King, Terence Crutcher, and Keith Lamont Scott. It is reposted here with the kind permission of Black Perspectives. Sisters and brothers: I’m delighted that you are mobilizing. Your demonstration reflects your recognition that the escalating crisis of racial terrorism requires a firm and uncompromising response. Your protest in the face of daily atrocities is a sign of your humanity and your determination to live in peace, freedom, and dignity. But as we demonstrate, we must take pains to avoid certain tactical and programmatic errors that often plague progressive protest…

The Left and Catalonia

How a Left position regarding the Catalonia referendum on 1 Oct 2017 could present itself juridically and politically The Catalonia referendum this Sunday will become part of the history of Europe, possibly for the worst of reasons. I will not discuss here the substantive questions, which can be interpreted as being historical, territorial, respecting internal colonialism or self-determination. These are the most important questions, without which it is impossible to understand the current situation. My opinion on them is unassuming. Actually, many will consider my opinion irrelevant for, being Portuguese, I do tend to feel particularly solidary with Catalonia. In the same year that Portugal got rid of the Phillipes (1640) Catalonia failed the same objective. Of course, Portugal was…

On Marx’s Philosophical Methodology in the Grundrisse

There is a considerable debate about the value of Marx’s earlier philosophical works relative to his mature period writing the three volumes of Capital. Some believe that they are of great importance for understanding Marx, while others such as Althusser[1] famously believed that the early works were mere preparation for presenting the full science of history and philosophy of dialectical materialism in the great work. I fall squarely into the first camp. While Capital is undoubtedly Marx’s masterpiece, there is a great deal in it that remains ambiguous and not always spelled out. This is particularly true of Marx’s philosophical methodology. Capital is the masterpiece of dialectical materialism, and yet there is very little written about that in its pages. Part…

Letter to the Editors of the Journal of the History of International Law

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017 and published at Opinio Juris. It is republished here with permission.] Dear Editors, We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is…