On Capitalism as Civilisation: Going Back (and Forth) to International Law

by | 7 Feb 2022

In a reply to a symposium in the European Journal of Legal Studies on her monograph Capitalism as Civilisation, Ntina Tzouvala gives a set of examples of the effect of critique, which she glosses as making the familiar strange. One of those examples is literary: ‘Once you start thinking of Jane Eyre as a parable about imperialist feminism sacrificing the “other” woman at the altar of the white woman’s individuation, you simply cannot go back’.[1] To take a leaf from Tzouvala’s own deconstructive methods, we note here that the meaning of this sentence is not singular or settled. Once the postcolonial reading has rendered Charlotte Bronte’s novel strange, we ‘simply cannot go back’. But what exactly is it that we cannot go back to? To an ‘innocent’ reading of the novel? To the novel, tout court – should we, for instance, abandon Bronte for Jean Rhys’ postcolonial reimagining of Bertha Mason, Rochester’s creole wife trapped in the attic? To white feminism? To bourgeois literature, which centres above all the individuation of the liberal subject?

As two PhD students working on international law, but with disciplinary backgrounds not as international lawyers but in literature and global politics, we have approached our task of reading Capitalism as Civilisation as a question of methodology. More specifically, we ask, what does Tzouvala’s idea of critique invite us, as apprentice international lawyers, to do? On the one hand, Tzouvala insists that the ‘international legal profession’ is fundamentally ‘about the construction of arguments’.[2] On the other hand, Tzouvala’s central thesis is that those who make arguments with the standard of civilisation are inevitably caught in the oscillation between two logics, the logic of (capitalist) improvement, and the logic of (white supremacist) biology. And once you start thinking of the standard of civilisation – and, by extension, given the centrality of the language of civilisation, international law itself – as complicit in imperialism, then you ‘simply cannot go back’. If we accept both these arguments – then, to borrow from Lenin, and thus from Tzouvala’s other methodological tradition, what is to be done? With what may the international lawyer interested in emancipation construct arguments?

Is there, for instance, any going ‘back’ to ‘civilisation’ – or international law, at large, for that matter? After all, as Tzouvala emphasises, the language of civilisation is central to international law, and no amount of contemporary embarrassment about that fact will make it go away. Yet Tzouvala is equally adamant that even when deployed knowingly, the language of civilisation is an unfaithful friend to the international lawyer struggling for emancipation. The cautionary tale here comes from the protracted legal struggle in the International Court of Justice over the fate of Namibia, in particular the contentious case brought by Ethiopia and Liberia against South Africa. In Tzouvala’s reading, Ethiopia and Liberia sought in that case to use ‘the language of civilisation against the grain’.[3] They did so by arguing that apartheid – as the ‘intersection between racialisation, labour exploitation and land deprivation’ – ran contrary to the ‘sacred trust of civilisation’.[4] Though Tzouvala credits this argument as a ‘rare radical text that tried to mobilise the language of international law against the very imperial order that put it in place’, she also notes that the language of civilisation undermined the applicants’ radical intentions, by admitting that at this stage in their history the Namibians were unable to govern themselves.[5]

Tzouvala builds on this example, and others,[6] to complicate what it means to come to international law in the spirit of emancipation as critical international lawyers. An important concern of Capitalism as Civilisation is indeed the way in which the international lawyer is situated within the discipline, including the ability of this figure to infuse international law with progressive politics. One of the responses to the deconstructive argument that law is indeterminate was to turn to the figure of the lawyer as the one who could renew the discipline through an heroic act of imagination; or, less romantically, exercise their pragmatic judgement to tactically engage with law for emancipatory ends. In either case, Tzouvala argues that the ‘joint emergence of deconstruction and the figure of the lawyer in critical international law’ might lend too much hope both to the indeterminacy of international law and the importance of the lawyerly subject.[7] Without rejecting the notion that international law is indeterminate – as famously developed by Marti Koskenniemi and David Kennedy – Tzouvala questions the operational extent of this indeterminacy, including the conclusions drawn from it.

The notion that international law is indeterminate and that the self-reflexive international lawyer can exist independently from the textuality of the discipline, Tzouvala writes, does not completely measure up against the discipline’s structural materiality. Indeed, international law might seem indeterminate when read from ‘Geneva, London and New York’.[8] Yet, this indeterminacy does not offer a rigorous explanation to why,  as Rose Parfitt puts it, ‘certain communities always draw the short straw when it comes to the allocation and exercise of power and resources’.[9] Taking this provocation seriously leads Tzouvala to develop an account of how the indeterminacy of international law is structured in accordance to the ‘standard of civilisation’ and how the international lawyer – even a critical one – is bound to the resulting disciplinary contradictions. The way in which international legal arguments are continuously formed within the remits of ‘civilisation’, she suggests, ‘militates against the current trend of positioning the figure of the lawyer as an antidote to the failures of the law’.[10] Because ‘[n]o matter how self-reflexive, responsible, and historically aware the international lawyer might be, upon entering the realm of “civilisation” in its own terms, they are subject to its contradictions as well as to its ties to racial capitalism’.[11]

Tzouvala’s cautionary note thus invites a deeper reflection on what we – as aspiring critical international lawyers committed to ‘critique not due to an aesthetic preference for being avant-garde, but because one suspects that the world is in bad shape’ – find a seemingly disconcerting conundrum.[12] On the one hand, the world of international law seems, at large, operative and constitutive of a structure of argumentation that maintains the discipline within the social and political norms of racial capitalism. Turning to international law is therefore fraught with contradictions, often reproducing a world of law shaped by the ‘standard of civilisation’ rather than unravelling it. On the other hand, the critical international lawyer does not exist as an independent figure outside the textuality of international law itself. Though we may be imbued with a critical distrust in international law’s emancipatory promises, we remain bound to the fact that international law is nonetheless the world in which we walk as international lawyers – and that how we walk in that world makes a difference. Bound to the discipline in one way or another, we have to walk the tightrope of international law, unable to transcend the discipline’s contradictions through self-reflexivity. 

And to complicate matters further, ‘the “mix” between “improvement” and “biology” matters hugely when it comes to the everyday life, or even survival, of the most exploited and marginalised groups of this world’.[13] An engagement with international law on its own terms, in other words, might not invite a world beyond colonialism and capitalism. But it can constitute the difference between life and death nonetheless. Perhaps we ‘cannot go back’ to an international law structured around colonial and capitalist endeavours. Yet, we are, at least partly, lawyerly figures in training to speak a disciplinary vernacular. We are thus perhaps always-already back with the discipline to a certain extent; a place that renders us doubtful of the emancipatory force of our critical labour. Going back to the discipline through critique, we hope to do something for the struggle against colonialism and capitalism.

But it might also be by dwelling on this tension in how we ‘go back’ to the discipline that, for us, some of the methodological insights of Capitalism as Civilisation come into sharp relief. Even if one of ‘the principal interventions of this book has been to decentre the lawyerly subject’, it does not reject the importance of the figure of the critical international lawyer as a reader (or grammarian) of international law.[14] Indeed, reading Tzouvala’s text, we were struck by its acute attentiveness to, and astute thinking about, the conventional texts of international law. As Tzouvala notes in her response for the EJLS, ‘looking at conventional materials in unconventional ways is not only intellectually and politically defensible, but cannot but be at the centre of critical inquiry into law as both a critical and a legal business’.[15]

In other words, the international lawyer – even, or perhaps especially, the critical one – must go back to international law. This, as Tzouvala notes, is a kind of gatekeeping. But as she also notes, a gate has two ends. The act of staying with the conventional materials of international law can equally be read as a critical activity that protects ‘everyone else from the law and – more importantly – from lawyers’.[16] If the figure of the international lawyer is bound to the discipline by training, taking the conventional materials of international law seriously is also to not surrender the discipline to those unwilling to question its violence – or to seemingly settled critiques.[17] Equally, it is about limiting the fetishization of international law; the sense that the discipline that we call our own has a greater influence on the course of things than it perhaps actually does. Furthermore, and perhaps most importantly, ‘if history is to perform a critical function in international law…it can absolutely do so by articulating new claims about how exactly it is that law moves through time and space without unearthing new facts of undiscovered treaties’.[18] To return to the conventional materials of international law repeatedly is therefore an activity that allows us to tell the stories of international law differently – both the conventional and the critical. 

This, then, is the conundrum – or, more properly, the provocation – that we take away from our reading of Capitalism as Civilisation: that we simply cannot go back to international law, while at the same time we must go back to it. Tzouvala’s path along this conundrum is, for us, both inspiring and instructive. She does not “simply” go back to the conventional texts and the settled narratives. Instead, every reading is a re-reading, a productive mis-reading, a re-description, an attempt to render the familiar strange. Indeed, if the battle for international law – be it critical or conventional – still ‘rages on’,[19] to retell the stories that we otherwise tell about the discipline is perhaps an act of emancipatory politics in itself. 

Which is not to elevate the critical international lawyer and/or academic to some privileged position – if nothing else, Tzouvala reminds us that far larger forces and structures have a greater role in shaping the discipline than any individual scholar, no matter how gifted or influential. Indeed, Tzouvala hints at one such structural shift in her chapters on the South West Africa saga and the “unwilling or unable” doctrine. In the South West Africa case, Tzouvala notes that the absence of a fact-finding mission gradually changed Ethiopia and Liberia’s argument against apartheid, from an argument that focused on the material conditions in the mandate, including the structure of the economy, to an argument that focused on individualised harm.[20]. By the late twentieth and early twenty-first century, when the “unwilling or unable” doctrine was being used to justify intervention in so-called “failed states”, detailed fact finding missions have given way to indexes of state failure – a choice that “reflects the contemporary faith in measuring, ranking and visualising things”.[21]. This shift, Tzouvala notes, represents a shift in the aesthetics of knowledge, one that reflects the “hegemony of positivism and financialised capitalism”.[22]

It also, we suspect, represents a shift in the terrain that international legal debates take place on – a terrain increasingly defined by statistics, graphs, rankings and digital data as it is by conceptual arguments. Does such a shift help or hinder our modest attempts to not simply go back to international law? And what of other shifts, including the biggest one of all – that brought on by the collapse of the planetary systems required to sustain life? As Tzouvala notes on the final page of Capitalism as Civilisation, “our collective inability to imagine the end of capitalism has brought the end of the world closer than ever”.[23].  But if we are to contribute to such imagining, then Capitalism as Civilisation is a stark reminder of just how difficult, yet necessary, it is to go back to international law.


[1] Ntina Tzouvala, ‘Capitalism as Civilisation, or How to Respond to your Book Reviews when the Author is Dead’ (2021) 13(1) European Journal of Legal Studies 140.

[2]  Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press, 2020) 210.

[3] Ibid 148.

[4] Ibid.

[5] Ibid 153.

[6] E.g. re the ‘unwilling or unable’ doctrine. See chapter 5 of Tzouvala (n 2).

[7] Tzouvala (n 2) 37.

[8] Ibid 38.

[9] Tzouvala (n 2) 38 citing Rose Parfitt, The Process of International Legal Reproduction (Cambridge University Press, 2019) 21. 

[10] Ibid 216.

[11] Ibid. 

[12] Tzouvala (n 1) 140.

[13] Tzouvala (n 2) 41. 

[14] Tzouvala (n1) 137. 

[15] Tzouvala (n 1) 137-138.

[16] Ibid 143.

[17] In another idiom, we might say that we have to take responsibility for the law in which we have been trained, see e.g. Shaun McVeigh, ‘Afterword: Office and the Conduct of the Minor Jurisprudent’(2015) 5 UC Irvine Law Review 499.

[18] Tzouvala (n 1) 143.

[19] Cait Storr, ‘“The War Rages on”: Expanding Concepts of Decolonization in International Law’ (2021) 31(4) The European Journal of International Law 1506 citing Martti Koskenniemmi in Jochen von Bernstorff and Philipp Dann (eds.) The Battle for International Law: South-North Perspectives on the Decolonization Era (Oxford University Press, 2019). 

[20] Tzouvala (n 2) 155. 

[21] Ibid 203.

[22] Ibid 204. 

[23] Ibid 220.

1 Comment

  1. Read Derrida, “Force of Law,: The Mystical Foundation of Authority” (Cardozo Law Review) for a deeper dive into these issues.

    Reply

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