Ntina Tzouvala’s book titled Capitalism as Civilization makes me angry. As lawyers, we rarely speak about emotions that legal and scholarly texts, legal histories and experiences provoke in us so permit me to explain myself. Amia Srinivasan discusses two kinds of anger:[1] one which calls for productivity and one which is apt. In her piece, Srinivasan demonstrates that the victims of injustice are called not to be angry as anger becomes “counterproductive” in achieving meaningful change.[2] From the perspective of the productivity critique, anger is “a wild emotion” that “endangers a possibility of constructive political dialogue”.[3]
Productivity critique encourages an engagement with the system on its own terms, even if these terms have enabled existing inequalities and injustices. It also conceives “anger” in non-instrumental terms i.e., as counterproductive. Thus, the productivity discourse becomes a way to limit and reduce political change within a particular legal framework that enabled certain injustices at the first place. In chapter 4 of her book, Tzouvala examines the South Africa cases by the International Court of Justice (ICJ) to show how “committed anti-racists” engaged with the “paternalistic” notion of civilization to defend against the imperialist claims (p. 213). Arguably, the engagement was productive, yet such productivity occurred on the terms of the standard of civilization that enabled colonial injustices.
Besides productive anger, as Srinivasan explains, anger can be “apt”. The anger is apt when it “presents its object as involving a moral violation: not just a violation of how one wishes things were, but a violation of how things ought to be”.[4] To do this, anger requires some room in politics i.e., to imagine the “ought to be” without imposing any productivity demands. To be sure, it is not to say that Tzouvala’s book does not offer critiques of the status quo and possible ways to think about the solutions but to point out that it does (at least for me) something more. It provokes apt anger about the past and present choices that some international lawyers have made and continue to make when discussing, framing, reading, and arguing about the standard of civilization in international law. Tzouvala masterfully shows how the capitalist expansion shaped our thinking about the standard of civilization in subtle and obvious ways. After reading the last chapter of the book, I feel angry because as international lawyers and individuals, not only we must fit “to a model of producing and consuming that is fundamentally unsustainable” (p. 220), but we must also pretend that we have time for an incremental change through a “constructive political dialogue”.[5] With this anger in mind, let me turn to a substantive discussion of Tzouvala’s book.
Capitalism as Civilization thought-provokingly ties together the insights of Marxist and post-structuralist philosophical approaches with sharp legal analysis. Others elsewhere have discussed many merits of the book, including its selection of the case studies, its engaging writing style, and its compelling argument, which conceives the interpretation of the term “civilization” in international law through the capitalist relations of domination and subjugation.[6] Tzouvala situates and distinguishes the classic Marxist perspective in the context of the queer, black and feminist Marxist scholarship (p.31). She shows that these perspectives examined the roles of gender, race, and sexuality in relation to the mode of capitalist production to consider how different forms of oppression manifest through these categories. Tzouvala builds on these perspectives “to show the inherent instability of ‘civilisation’ as a pattern of argument that constantly oscillates between two distinct poles: the ‘logic of improvement’ and the ‘logic of biology” (p. 39). In addition, she draws our attention to indigenous scholars “sympathetic to Marxism” (p. 27) who built on and subsequently revised a classic Marxist understanding of colonial capitalism. In these revisions, land dispossession is central to a colonial capitalist endeavour. In the context of colonisation of indigenous communities, the dispossession, however, is not reduced to exclusively taking of the land in the materialistic sense.[7] It manifests in the deprivation of lives and an attack on the agency of indigenous communities.[8]
While the key argument is original and captivating, in my view, the book’s most lasting contribution lies in its methodology in combination with its theoretical framework. Tzouvala posits that her methodology is to “read symptomatically” (p.7). She further outlines the centrality of reading as a practice for studying international law. According to Tzouvala, legal professionals make sense of law by reading and interpreting legal texts. As Tzouvala explains, “students are often instructed to ‘read out’ the uncomfortable passage that refers to the general principles of law recognized by ‘civilized nations’” (p.8). When I was taught international law in Russia, my professor at the time advised either to ‘read out’ the part of the provision on ‘civilized nations’ entirely or to presume that the term ‘civilized nations’ in the ICJ Statute applies to all members of the United Nations (UN). This personal experience confirms Tzouvala’s point on “reading out” this part of the provision (p.8). Notably, little was said in my class about Jan Smuts, a proponent of racial segregation in South Africa, who drafted the Preamble of the UN Charter.[9]
Reading out is not a universal practice. As Tzouvala later explains, a particular problematic defines how international lawyers read the texts. As she suggests “the silences are the product of the questions we choose to ask the text” (p. 13). A good example is Tunkin’s reading of the Statute. Tunkin, a Soviet international law scholar, criticized the inclusion of the term “civilized” in the Statute of the Court.[10] Specifically, he perceived such inclusion to have an imperialist agenda, which is “[t]o proclaim principles of the bourgeois legal system to be binding upon all”.[11] Tunkin was concerned about the rule on “adequate compensation of nationalized property of aliens” that was framed as a principle of civilized nations.[12] A concern echoes today more than ever when foreign investors bring overinflated claims to obtain compensations from governments, with the states of the Global South facing the most investment claims.[13] Throughout the 20thcentury, many policymakers, scholars, and NGO representatives argued that the enablement of transnational commercial relationships would induce greater peace, security, and, hence, civilization in the world.[14] Perhaps the most famous variations and iterations of this argument persisted in international arbitration and double taxation. For example, in the 1930s, Thomas Watson, a former head of the International Chamber of Commerce (ICC) and the corporation IBM, even suggested that international commerce can bring peace, which constitutes “the essence of civilization”.[15] The proponents of this view did not read much Marx or deliberately disregarded (“read out”) parts of the text. As Hirschman writes, Marx “laughed off” the le doux commerce sentiment as he pointed to many historical instances when the capitalist mode of production was a primary reason for colonial violence.[16]
Tzouvala further observes that “reading out” and “reading in” are the techniques that many international lawyers employ, a factor that calls for a theory of reading “for and within international law” (p.8-9). All international lawyers (at least in the Western tradition)[17] read the texts and through its reading, they engage in imagining and organizing legal meanings. Yet they speak little of the underlying assumptions and considerations that guide this craft. To contextualize her theory of reading, Tzouvala relies on Orford and Capers who tackled “reading against the grain” (p.9). In this context, Tzouvala argues that “every single reading of international law, whether critical or mainstream, theoretical or doctrinal, is determined by a specific problematic that renders some aspects of the text hyper-visible and others invisible, or more accurately, unthinkable” (p.9). In contrast to a classic doctrinal analysis, “symptomatic reading” requires the reader to declare their problematic outright, to prevent any pretention that reading of the text can be objective.[18]
Tzouvala states that she will engage in the reading of the texts as “a lawyer” and will examine the concept of civilization “as a particular argumentative pattern” (p.14). For Tzouvala, both the origins of the civilizational argument and its consequences matter. Hence, the book examines the crisis in Iraq and Syria as the case studies (pp.167-211). Through the Marxist lens, Tzouvala is interested in the strategy and patterns of the civilizational argument so far as it reveals the cites of contestation that manifest in the “patterns and regularities” as well as “contradictions” (p.219). Such “patterns” and “contradictions” demonstrate how the relationship of capitalist production informed how political relations are construed among the communities along the lines of domination and subjugation (p. 16). The capitalist mode of production is, as Tzouvala argues, central to the civilizational argument. In this context, Marxism offers the most suitable theoretical framework to complement the methodology. At the risk of oversimplifying, one of the chief Marxist troubles with the capitalist mode of production resides in the oppression of labour by capital. This process is neither natural nor inevitable but instead constitutes a historical choice that can be overcome only through a political struggle (p.24). Some anarchists, such as Bakunin, argued that only violence against institutional structures could carry a meaningful change.[19] Leo Tolstoy would probably have noted that overcoming is possible only through love.[20] As law students, we are taught to think that the objective rules of international law have the potential to settle the matter.
In this light, it is tempting to think that international law as an objective set of rules is external to a political struggle entirely, a factor that can enable it to resolve the labour/capital contestation. Tzouvala shows that this temptation cannot be further from the truth through the methodology of symptomatic reading and the Marxist theoretical framework. Tzouvala observes that the civilizational argument has been somewhat inescapable as international lawyers “choose” or “are forced to articulate their arguments by reference to civilization” (p.40).
For me, two questions emerge here. First, could international law offer anything to limit the logic of capitalist expansion in the context of legal argumentation? Second, how can new international lawyers disrupt the civilizational argumentative patterns without adopting their pervasive logic? Whatever the answer is, one must keep in mind that while capitalism has not been historically inevitable, it has become a dominant model of economic development in the world.[21] In this sense, capitalism always wins, and it makes me angry. Tzouvala, in turn, wrote a fantastic book.
[1] Amia Srinivasan, ‘The Aptness of Anger’ 26 Journal of Political Philosophy (2018), at 124.
[2] Ibid. G. Pettigrove, “Meekness and ‘Moral’ Anger” 122 Ethics (2012), at 341.
[3] Peter Lyman, “The Domestication of Anger: The Use and Abuse of Anger in Politics” 7(2) European Journal of Social Theory (2004), 133.
[4] Srinivasan supra 1, at 128 [Emphasis original].
[5] Lyman supra 3, at 133.
[6] E.g., Idriss Paul Armand Fofana, “Tzouvala Nina: Capitalism as Civilization – A History of International Law” (2021) 4 Heidelberg Journal of International Law 1059.
[7] Robert Nichols, Theft Is Property!: Dispossession and Critical Theory (Duke University Press, 2019).
[8] Val Napoleon, “Thinking About Indigenous Legal Orders”, online:< https://www.law.utoronto.ca/sites/default/files/documents/hewitt-napoleon_on_thinking_about_indigenous_legal_orders.pdf>; John Borrows, Law’s Indigenous Ethics (University of Toronto Press, 2019). Tanya Talaga, Seven Fallen Feathers: Racism, Death, and Hard Truths in a Northern City (House of Anansi, 2017).
[9] Christof Heyns, “The Preamble of the United Nations Charter: The Contribution of Jan Smuts” (1995) 7 Afr J Int’l & Comp L at 329. Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton University Press, 2013) at 9.
[10] Grigoriy Tunkin, Theory of International Law (Harvard University Press, 1974) at 198.
[11] Ibid.
[12] Ibid.
[13] Jonathan Bonnitcha & Sarah Brewin, “Compensation Under Investment Treaties: What Are the Problems and What Can Be Done?” (2020), online:< https://www.iisd.org/system/files/2020-12/compensation-investment-treaties-en.pdf>
[14] E.g., Ole Kristian Fauchald and Daniel Behn, ‘World Peace and International Investment: The Role of Investment Treaties and Arbitration’ in Cecilia Bailliet, Research Handbook on International Law and Peace (Edward Elgar Publishing, 2019) at 205.
[15] Thomas Watson as cited in George Ridgeway, Merchants of Peace: The History of the International Chamber of Commerce (Boston, 1959) at 20. I discuss le doux commerce in a greater detail in Ksenia Polonskaya, “The Strategies of the International Chamber of Commerce to Eliminate Double Taxation” (2022) Journal of International Economic Law forthcoming.
[16] Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton University Press, 2013) at 62.
[17] Tzouvala is careful to note that “textuality” is central to the Western system of international law and is not a necessary condition for other legal systems. However, she also does not presume that the Western tradition of international law ends in textuality (pp.17-18).
[18] As Tzouvala herself acknowledges, symptomatic reading has origins in Althusser’s works.
[19] The relationship of Bakunin with violence has not been straightforward at Elizabeth Frazer & Kimberly Hutchings, “Anarchist Ambivalence: Politics and Violence in the Thought of Bakunin, Tolstoy and Kropotkin” (2019) 18:2 European Journal of Political Theory 259 at 262.
[20] Tolstoy and his Disciples: The History of a Radical International Movement Front Cover Charlotte Alston Bloomsbury Publishing, Dec 16, 2013 at 207.
[21] Branko Milanovic, Capitalism, Alone: The Future of the System That Rules the World (Harvard University Press, 2019).
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