Marxist Legal Theory: The State

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Key Concept This is part of a series of key concepts in Marxist legal theory organized in collaboration with our friends at Legal Form: A Forum for Marxist Analysis of Law. All articles in this series, including the present one, will appear concurrently on Legal Form and Critical Legal Thinking. There has been no shortage of debates and controversies within Marxist political and legal thought concerning the state. Part of the difficulty stems from the fragmentary character of Marx’s writing on the topic. In his notebooks from the late 1850s, posthumously published as the Grundrisse, he indicates that “the concentration of bourgeois society in the form of the state” would be part of the larger systematic critique of political economy he was pursuing at the time. However, only…

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The Statues of our Discontent

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Statues look a lot like the past, which is why, whenever they are called into question, we turn to historians. The truth is that statues are a thing of the past only as long as they stand quietly in squares, as indifferent to us as we are to them. At such times, which may actually last centuries, they are visited more intentionally by pigeons than by humans. But when statues come under assault, they leap from the past to become part of our present. Otherwise, how could there ever be any dialogue between us and them? Of course, there are statues that never come under assault, either because the past to which they belong is just too remote for them…

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Postcolonial Liberalism’s Double Binds

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“We need Covid Trials. In an international court,” is Arundhati Roy’s “post-lockdown reverie”. She wants the Indian government to be held accountable for its treatment of migrant workers as refuse and the ongoing assault on the civil rights of dissenters in the wake of Covid-19. Roy’s wishful faith in an international justice delivery mechanism to establish state accountability captures the double bind (à la Spivak) of postcolonial liberalism well: relying on the perceived “rational universality” of international law’s (and by extension common law’s) promises of protecting the human rights to liberty, freedom and equality, when a postcolonial state—especially its judiciary—fails to do so, despite a progressive constitution. It is a double bind because this reliance operates with the awareness of international…

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The Winter of Absolute Zero: Interview with Shaj Mohan

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The silent 20th century consensus was that philosophy was Western, which then was split into ‘continental’ and ‘Anglo-Saxon’. In recent decades we have seen the assertive presence of non-White philosophers including Achilles Mbembe, Anthony Appiah, Divya Dwivedi, and Shaj Mohan. Shaj Mohan is the philosopher who has been “forsaken”[i] by philosophical traditions as his work is characterized by the irreverence towards both European and ‘Indic’ traditions. Instead through what Robert Bernasconi called rigorous and radical interpretations, his work appropriates scientific, mathematical, technological and metaphysical resources to create new concepts for our time. Recently, Mohan has been participating in the now famous “Coronavirus and Philosophers”[ii] debate with Agamben, Nancy, and Esposito. In these interventions the same irreverence to philosophical traditions as…

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Complex Back Stories: Feminism, Survivor Politics and Trans Rights

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On June 10, author JK Rowling published an article on her website, ‘JK Rowling Writes About her Reasons for Speaking Out about Sex and Gender Issues’ which offered a rationale for her public interventions opposing legislation in the UK designed to legally recognise transgender rights and identities. While the article began by minimising Rowling’s interventions, which she claimed boiled down to an ‘accidental like’ of a tweet by a prominent campaigner against transgender rights, and emphasising the vitriol directed against her, it’s primary purpose was to explain her reasons ‘for being worried about the new trans activism, and deciding I need to speak up’. Rowling mentioned her work in charities safeguarding vulnerable women and children, her commitment to free speech…

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Roland Barthes: Myth

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Key Concept Human communication is multi-layered, as our language relies on complicated systems of signification; for example uttering a given statement using specific terminology might indicate the ideological tendencies of the speaker. And like any other communicative system, law is also multi-layered. This multi-layered nature is born at the moment of drafting or passing a judgement, and reconfigured through interpretation, application and even communication throughout the lifetime of the rule or the judgement. For example: the rule that forbids stealing infers an understanding of a given sanctity of property. Such sanctity was presumed at the moment of drafting and resumed further meaning and depth as the rule was implemented, transplanted, and developed. Roland Barthes is a French theorist (1915–1980) whose…

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Marxist Legal Theory: Security

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Key Concept This is part of a series of key concepts in Marxist legal theory organized in collaboration with our friends at Legal Form: A Forum for Marxist Analysis of Law. All articles in this series, including the present one, will appear concurrently on Legal Form and Critical Legal Thinking. The concept of security has significant implications for a Marxist theory of the state, law, and political economy, offering conceptual resources for linking all three in a renewed critique of capitalism. In “On the Jewish Question”, Marx makes the weighty contention that “security is the supreme social concept of civil society”, adding that it is “[t]he concept of the police”. Until rather recently, Marxist scholars have left this pronouncement largely unexamined, focusing instead on the administrative…

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Remembering Peter Fitzpatrick (II)

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I read for a PhD under Peter’s inimitable supervision at Birkbeck from 2005 until late 2008, at which point I told him that I had to return to Australia to finish the dissertation because the birth of my first child, Phoebe, was imminent. It sounds like I took drastic evasive action to avoid the difficult run-in to the end of the PhD (stories were legion in the Gower Street bunker about Peter’s pernicketiness in the final days, making weary candidates redraft their abstract for the seventh time just days before submission). But in truth those years at Birkbeck were the most enjoyable, provocative and intellectually formative of my life. A huge part of that experience was Peter’s supervision. Of course,…

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Institutional Vandalism: The University & Covid-19

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The Guardian’s 29 May article (‘Soas to slash budgets and staff as debt crisis worsens in a pandemic’) has brought attention to a worrying development, which risks seeing losses of livelihoods and expertise at a unique and world-renowned institution. The danger is that framing SOAS’s financial difficulties in isolation obscures the fact that this is a sector-wide crisis that will only be resolved by a turnaround in government policy. In a highly marketized education sector, speculation about a university’s future can impact student numbers, the institution’s lifeline. This is the Catch-22 that university sector workers are now trapped in: to name a crisis is to make it worse. Higher education institutions across the UK are seeing shrinking budgets, restructurings and…

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Universities, Finance Capital and Impact of COVID-19

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  Republished with permission from Discover Society. A number of vice chancellors have claimed that they are constrained in how they can approach the financial impact of the COVID-19 pandemic by financial agreements. This means that they wouldn’t be able to cover losses using existing reserves because the University was prevented from doing so by legal agreements with its financiers to make a financial surplus each year. The existence of these finance agreements and the restrictions they impose should not come as a surprise. I, among others, wrote during the 2018 strike of the increasing use of commercial bank financing by universities such as Portsmouth and UCL to fund capital expenditure on new buildings. Now, however, we see the consequences of credit…

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The System Was Never Broken (it was built this way)

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The unravelling developments in the United States of America (USA) amid the death of George Floyd are unsettling. The terminology ‘public order’ is used by popular political narrative to host and then employ a variety of techniques to deflect from the justified concerns surrounding social and racial justice. Frantz Fanon said: “When we revolt it’s not for a particular culture. We revolt simply because, for many reasons, we can no longer’ breathe”.[1] The capitalist structure reproduces an illusion of uniformity, while it actually benefits and operates from emphasising and racialising difference. Property, against this background, is the dominant factor for the capitalist society. Capital can only be capital when it is accumulating. For this to unfold, it depends on structural…

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Beyond Brutality

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I write this at great distance from the uprisings now taking place across the US sparked by the police killing of George Floyd. I am thousands of miles distant and witness police repression, and the anger of the protestors, via old and social media. I am a white Oxford professor, whose efforts at understanding events flow neither from experience nor grounded observation. I take seriously the idea that this is a moment that demands listening, not speech. Yet there are things to be said – things that, in my case at any rate, are driven by a commitment to grasp what’s at stake politically when policing is contested and to articulating ideas that can help shape the struggle for a…

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The Sense of Public Order

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With the widespread social unrest unfolding in the USA following the police murder of George Floyd in Minneapolis, we are once again confronted by the horrifying exceptionality of public order enforcement. The problem, however, is that we understand the videos of police beating, shooting and gassing protestors as the contemporary meaning of public order. In other words, public order is understood as the power that the police deploy when the populace is restive. In Law and Disorder, (the book Ive been working on for most of the last decade, and soon to be out Routledge), I insist that we must go beyond this sporadic view of public order. Instead of something police do dressed in body armour, public order needs to be understood as…

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The Pandemic and Us: Enemy, Resistance, Desire

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Much has already been written about the coronavirus’s impact on the legal phenomenon, as well as about the use of national laws in response to the contagion. In this post, I would like to pursue what David Graeber indicates as a compelling line of inquiry. Accordingly, I will consider three broad contemporary trends which law played a role in shaping, with a view to problematising their development in a time of pandemic. How to resist? Many analyses of the health crisis share a key commonality in the injunction to engage in acts of resistance and mobilisation. Catherine Connolly, for instance, argues that gestures of solidarity are badly needed to appease such forms of alienation as inevitably ensue from social distancing.…

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On Colonial Universality and other Legal Prerogatives: Reflections on Peter Fitzpatrick’s The Mythology of Modern Law

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Following the death of Peter Fitzpatrick this month, we are reposting this series on The Mythology of Modern Law, originally edited by Brenna Bhandar & Sara Ramshaw, to mark the 25th anniversary of the book. 2017 marked the 25th anniversary of Peter Fitzpatrick’s The Mythology of Modern Law. An eloquent and incisive critique of Occidental law’s pretensions to secular origins, Fitzpatrick’s text remains of prime significance to scholars engaged with the constitutive forces of race, racism, and colonialism in the structure and political, philosophical and psychoanalytic imaginaries of modern law. The significance of the book cannot be understated; simply put, it laid the groundwork for the development of studies in law and colonialism and elevated race – perhaps one of the…

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Remembering Peter Fitzpatrick

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In her beautiful piece for CLT on the life and career of Professor Peter Fitzpatrick, Sundhya Pahuja offers a provocation for someone to write more on Peter’s years in Belfast, teaching Law at Queen’s University Belfast (QUB) in the late 1960s/early 1970s. While others are much better placed to write about that time, especially Professors Abdul Paliwala and Tom Hadden, who were his colleagues at QUB, I do have a couple stories, which I would like to share. These were told to me by Peter and his wife, Shelby, after taking up my first academic position at QUB School of Law in 2005.  In particular, I recall their reminiscences about working on the political and cultural magazine, Fortnight, which was…

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Vale Peter Fitzpatrick (1 November 1941 – 20 May 2020)

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Peter Fitzpatrick was widely revered as one of the most influential and original critical legal theorists in the English-speaking world.  His work on the colonial and postcolonial dimensions of modern law changed the field of legal theory and inspired the research of many scholars who have themselves gone on to make important contributions to legal scholarship and activism. Since his death from cancer on Wednesday May 20 at the age of 78, there has been an outpouring on social media of sadness from students, supervisees, colleagues, collaborators and interlocutors from all over the world. Two things stand out about those messages. First, almost without exception, every message has mentioned the word ‘generous’. Second, no one has expressed regret that they…

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Democratic Biopolitics Revisited: A Response to a Critique

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In his recent intervention on CLT, Bryan Doniger offered a critique of my short intervention ‘Against Agamben: Is a Democratic Biopolitics Possible?’. The main points of this critique are (a) that I do not pay enough attention to the notion of biopolitics as it is indeed articulated in the work of Michel Foucault, confusing anatomo-politics and biopolitics and (b) that as a result I do not realise that the notion of democratic biopolitics I tentatively tried to suggest is indeed already put in practice by contemporary neoliberalism with catastrophic results. Actually my intervention was aimed more at one of Giorgio Agamben’s early interventions on the pandemic and it was a protest against simply thinking of any collective behavioural change as…

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Zoomism and Discipline for Productive Immobility

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The virus lurks on car door handles, on doorknobs and the floor, on the breath of others or in a friend’s hug, on onions in the supermarket, and on the hands of the valet who parks your car. If you venture outside, everything and everyone is a threat. So, it is better to stay home, safely locked away with your previously disinfected computer which connects you to a world that is innocuous because its virtual and therefore “virtually” harmless. What makes you sick lurks outside your door. The fear of what we know to be real, but which only materializes in suspicion, is enough to keep us locked away. This individual sensation of anguish in the face of a threat…

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