English version of interview with Brenna Bhandar* by Olivier Chassaing, translated by Chayma Drira for Période, the French online journal of Marxist theory, available here.
Olivier Chassaing (‘OC’): By studying law, one can explore how capitalist societies rest upon and strengthen different social hierarchies: class, gender, race dominations, as well as persisting colonial structures and ideologies. But in order to so, do you have a specific approach of legal materials focusing on certain aspects of this complex reality, such as social uses and practices of legal institutions, or case law and precedents, or rules and statutes? More generally, which critical legal theories do you work on?
Brenna Bhandar (‘BB’): In the legal field, the study of law and colonialism, on the one hand, and law and capitalism, on the other, have been kept quite separate. Conversely, in the fields of history and post-colonial theory, beginning with the work of subaltern school historians in particular, this bifurcation did not appear, at least early on. The legal architecture of colonial rule was one aspect of analysing how capital, capitalist social relations and colonialism were thoroughly interrelated, particularly in the work of Guha, Chakrabarty and others, and more recently, in the work of historian Ritu Birla. The frameworks of analysis developed in these fields have yet to assert more widespread influence on the field of legal studies.
But to get to your question, examining how law both strengthens and depends upon social relations of race, gender, and class to support particular ideologies, or excavating the role of law in colonialism and imperialism, or indeed, the ways in which law is central to contemporary modes of dispossession and capital accumulation, requires a toolbox that is quite far-ranging indeed. Legal materials such as case law, statutes, legislative debates, policy papers, etc… can be considered as particular types of artefacts in themselves. Cornelia Vismann’s work on legal and judicial files, records and record-keeping, for instance, provokes us to consider how the materiality of what is included in the file, in state registries, and other bureaucratic archives, and the form in which the content is expressed, plays a role in the fabrication of legal forms and law, and shapes forms of governance. I cannot do justice to the philosophical depth of her work here, but this is one very significant approach to considering the materiality of legal documents.
This critical approach to the study of law, legal materials and legal form, however, draws on a philosophical lineage that has a particular conception of power, one which is at odds with more structurally inclined analyses of the relationship between law, power and the reproduction of particular social relations. For the critical legal scholar who is interested in considering (and critiquing) the well-embedded histories of the relationship between law, colonialism and capitalism, and their contemporary legacies, I have found it essential to draw on the intellectual resources of radical black marxism, post-colonial theory, indigenous critical theory, and critical theory more broadly. Anti-racist feminist scholarship, particularly of those scholars engaging with Marxian frames of reference has also been key to understanding law’s role in reproducing hierarchical and intersecting social relations of domination.
OC: Historically, several Marxist traditions have been dealing with law as an ideological structure doomed to disappear in the communist society. This is why Marxism could have been identified as an anti-legalism. After many critical legal scholars abandoned Marxist traditions, is there a kind of revival of such resources in order to analyse contemporary legal systems, in a context of austerity policies, the growing commodification of social life and violent techniques of dispossession?
BB: Yes, I do think there is a small revival happening. Marxism was very much written off by critical legal studies scholars (amongst many others) after the 1980s with the fall of the Berlin wall and the demise of the socialist bloc in Eastern Europe. The turn to post-structuralist philosophy, generally speaking, and psychoanalytic theory as a way of prising open what was viewed as an unnecessarily narrow conception of the political dimensions of law was a highly important development in British critical legal studies. However, at the same time, it seemed as though this turn away from Marxism marked a near whole sale abandonment of any serious engagement with the relationship between law and capitalism. In other fields, if we think of the work of cultural studies theorist Stuart Hall, to take one example, there remained a critical and deconstructive engagement with Marxism, and perhaps more significantly, class as a key analytical concept and political reality. Another reason that explains this shift in legal studies was the institutionalisation of ‘critical legal studies’ in a few law schools, which arguably dulled its earlier concerns with radical pedagogy and engagement with local communities and politics. Now, we seem to have entered a moment where self-described “radical” discourses abound in academia without any serious analysis of capitalism.
More recently, there has been some renewed interest in engaging with Marxist philosophy and theory as a means of understanding law’s complicity in economic forms of domination on an international level (see for instance, China Miéville’s Between Equal Rights: A Marxist Theory of International Law ), and Robert Knox, “Valuing Race? Stretched Marxism and the Logic of Imperialism” in London Review of International Law  Vol. 4 Issue 1); in feminist theory (see Ruth Fletcher’s essay “Legal Form, Commodities and Reproduction: Reading Pashukanis” in Maria Drakopoulou (ed.), Feminist Encounters with Legal Philosophy ); and in the field of property law (see Brenna Bhandar, “Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony,” Journal of Law and Society )
OC: The rediscovery of Pashukanis’s General Theory of Law and Marxism plays a crucial role in contemporary Marxist legal theories. Yet, is any Marxist account of law committed to the claim that law and the rest of social reality, such as economical structures etc., express and support each other by reflecting the same commodity form, hence that law became a real abstraction? Is this claim heuristic enough, or should contemporary legal theories go beyond its limits to criticize legalism?
BB: The rediscovery of Pashukanis’ work comes at a time when the limits of understanding law as primarily or wholly an expression of the commodity form had already been delineated by scholars such as Paul Hirst (amongst others) several decades ago. The short answer to your question is thus no, this theory of law does not account for those dimensions of legal relations that exceed a reductively economistic understanding of exchange. Much in the way that Stuart Hall critiqued the economistic reduction of race to class in Marxist scholarship, we can take the example of property law, and analogise in the following way. Stuart Hall drew on the (Althusserian inspired) concept of articulation to express how economic practices operate as a series of interconnected but differentiated processes. (For a more detailed exploration of this concept see Bhandar and Toscano (“Race, Real Estate and Real Abstraction” Radical Philosophy ) Property too, has distinct economic and juridical forms, but these cannot be separated off from the social, historical, and political milieu in which they exist. This separation is a conceptual error committed by both Marxists and legal positivists! Paul Hirst, whom I mentioned above, pointed to the fallacious tendencies amongst some Marxist legal theorists (namely, Pashukanis and Karl Renner) to reduce conceptions of legal subjectivity and juridical forms of property to their existence as mere expressions of economic exchange. While the very problem of what ‘capital’ is cannot be separated from the modes of its legal organisation, it is clear that legal forms are not solely determined by economic processes of exchange. Juridical forms of property, in all their complexity and plasticity, have been central to multiple modes of capital accumulation and dispossession, as Balibar has noted, and to that end, it is clear that juridical forms of property, just to take that as one example, reflect much more than the life of property as a commodity form of exchange.[1. Étienne Balibar, “Plus-value et classes sociales: Contribution à la critique de l’economie politique,” in Cinq etudes de materialisme historique (Paris: Francois Maspéro, 1974) p.165–167]
There are other limits to using Pashukanis that in some ways reflect the limits of utilising Marxist concepts to explain contemporary legal-political phenomena, and the relationship between law and politics more generally. Scholars working in the black radical tradition, such as Cedric J. Robinson, C.L.R. James, and before them W.E.B. du Bois, to name just a few, have explored the limits of Marxist theory and its inabilities to account for the historical and contemporary dynamics of racial capitalism. As Fanon wrote, Marxism ‘must be stretched’ to account for the realities of colonialism, and more specifically, the ways in which class structure and property ownership (among other things), are formed in the colonial context in conjunction with an ideology of white supremacy. Thus, engagements with the commodity form theory of law must, I think, contend with the specifically racial and gendered dimensions of juridical formations.
OC: As a matter of fact, you develop in several papers a critique of the subject of legal rights defined as a pregiven or predetermined notion of subjectivity. How would you describe the way this critique is rooted in contexts of colonial exploitation and indigenous people’s struggles today, and stretches to a deeper critique of what you call a “racialist humanism”?
BB: The critique of the universal concept of the “human” of human rights, or of the universal “reasonable man” in law more generally, is well-worn. Perhaps a good starting point for considering the genealogy of this particular critique is Marx’s essay “On the Jewish Question”. However, turning to colonial contexts, it is clear that a racial and gendered concept of the human subject was and in many ways, remains at the centre of the legal apparatus of colonial governance that developed in a range of places. In settler colonies in particular, First Nations have been interpellated by a legal apparatus as, variously, uncivilised, in need of improvement, as cultural artefacts of a bygone era, and so on. One of the effects of this kind of legal interpellation is that the contours and content of the aboriginal rights established in jurisdictions such as Canada or Australia have never recognised indigenous sovereignty. While to do so might ‘strain the constitutional structures’ of these settler nation states, decolonisation requires nothing less. Decolonisation requires the undoing of the paradigmatic ‘proper’ subject of law, explicitly defined during the 19th century, and implicitly thereafter, defined by the properties of whiteness and maleness.
OC: You study different forms of dispossession, especially those experienced by Palestinians from the late nineteenth century, and discuss the use of the settler colonial framework. How would you describe this concept? Is it relevant enough to grasp the way indigenous struggles are shaped in various contexts? Furthermore, what kind of theoretical and political tools would be useful to understand the juridical logic of racialization of certain groups in a context of a “postcolonial capitalism” or a “racial capitalism”?
BB: Describing the concept of settler colonialism is difficult; settler colonialism is better understood as a framework of analysis that can be used to understand specific modalities of colonial governance and rule in nation states from where colonial settler populations have not decamped, and where the struggle of First Nations to reclaim sovereignty over their lands persists into the present. Settler colonialism, as a structure, a continually unfolding process (a much quoted observation of Patrick Wolfe) requires flexibility in the legal devices and rationales it utilises to maintain state control—and possession—of indigenous lands. This is quite evident in the Palestinian context, where the perceived demographic threat of the Palestinian population leads the Israeli state to truly rely on a combination of older and newer rationales for appropriation and ownership, coupled with a range of other legal orders including military, land use planning and criminal laws. These ‘recombinant’ forms of appropriation and ownership, and the racial logics articulated through them, produce uneven landscapes and scenes of dispossession.
Rafeef Ziadah and I have explored some of the problems with using the settler colonial framework specifically in relation to Palestine in “Acts and Omissions : Framing Setter Colonialism in Palestine Studies” (Jadaliyya, January 2016). Some of the issues we raise in much more depth in that article include the potential creation of an artificial binary between studies of colonialism and settler colonialism, given that the techniques of colonial dispossession did not observe discursive boundaries between different types of colonisation. Second, we note that the settler/native binary can work to obscure important differences in the racialisation and class composition of ‘native’ and ‘settler’ populations.
However, using settler colonialism as an analytical framework need not exclude or omit a consideration of racial capitalism. Surely they each work through each other; it is simply not possible to understand settler colonialism without considering how central racial capitalism has been to its particular modality of colonial governance, defined by three major economic-political-juridical institutions: slavery, the appropriation of indigenous lands and resources, and the importation of racialised, migrant labour. Understanding these phenomena as juridical formations can be grasped through analytics developed by intellectual traditions of thought such as radical black marxism, critical indigenous theory, and anti-racist feminisms. This type of scholarly work also requires, in my view, an understanding of how contemporary racial capitalism is embedded in histories of colonial dispossession. A daunting task, but one largely not taken up by critical legal scholars.
*Brenna Bhandar is Senior Lecturer in Law at SOAS, University of London.