“Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.”
Samuel Beckett (1983)
Martin Hägglund’s This Life: Secular Faith and Spiritual Freedom grounds its critique of capitalism on a secular admission of our lives’ finite character: our time on this world is limited and labouring under the capitalist mode of production takes away too much of this limited time. In turn, Capitalism as Civilisation concludes with a note about the purposes and limits of critique as climate change advances and we are running out of time (p. 2020). I am opening with this note not because I am feeling gloomy, but because I am feeling grateful. André Dao, Emily Jones, Tim Lindgren and Ksenia Polonskaya chose to devote some of their precious time to reading my monograph and to helping me think through its political, professional and intellectual implications. I am very glad that they did so, and in this brief note I will address some of the issues that they raise, not in order to ‘respond’- in the sense of defending myself or my book-but in order to move the conversation forward and figure out what I think about any of these issues in the first place.
Both Dao & Lindgren, Jones, and Polonskaya all raise very similar questions around the implications of my main argument for tactical engagements with international law. In particular, Jones likens the oscillations of ‘civilisation’ with the conundrums of feminist engagements with the field, while Dao & Lindgren highlight my own ambivalence as I reject the political potential of a discipline from which I refuse to disengage. In turn, Polonskaya concludes her intervention by asking whether it is possible to mobilise international law for anti-capitalist purposes. If I wanted to re-articulate all three interventions’ relevant argument, it could look like this: what are the political, professional and jurisprudential consequences of a re-worked version of indeterminacy that does not collapse into projectional subjectivism? Is political paralysis the only obvious solution, at least in our capacity as critical/feminist lawyers? There are multiple ways of answering this question and I will attempt some here. Jones has already pointed at one possible answer, namely the Leninist distinction between strategy and tactics, as repurposed for international law by Robert Knox (tellingly, Dao & Lindgren also invoke Lenin, when they ask poignantly ‘what is to be done’, while Polonskaya engages with an earlier Russian revolutionary and Marx’s nemesis, Bakunin).
It is important to remember here that Knox partly articulated this argument in response to the concerns that ChinaMiéville’s Pashukanian analysis of international law was nihilistic and paralysis-inducing. To that, Knox responded that Miéville did not offer a guide either way about how, when and why to engage tactically with international law and that this always remains a case-by-case calculation for radicals. If we wanted to return to the language of indeterminacy, we could also say that ‘general propositions do not decide concrete cases’. To accept the argument that international law is indeterminate in a pro-capitalist manner does not by itself compel us to make or to abstain from making specific legal arguments in front of specific institutions in particular moments of time. To think otherwise is to push reification out of the door only for it to come back in through the window. For example, even to say that ‘feminist international should engage with the structures of international law’ does not automatically mean that they/we should engage with the UN Security Council and on the terrain of conflict in particular, especially during a period when principled pacifist or anti-imperialist iterations of feminism have been marginalised.
I stand by this argument, especially to the extent that it stops us from cutting political corners through theoretical arguments, and because it is wide open to the possibility of political disengagement from international law being the best option in some instances. However, it remains somewhat of an evasion: it does not address what is the value of the indeterminacy critique for international law in particular. This is because both US legal realists and, later, the critical legal studies crowd wrote in the particular context of a domestic legal system with an unusually prominent appellate court system, where deconstructing formalism was the most obvious way of attacking, first, laissez-faire obstructionism and, later, middle-of-the-road liberalism. However, with the marked exception of certain fields, such as international investment law or international human rights law in Europe or the Americas, international law does not rely as heavily on adjudication. Nevertheless, it does appear to me that formalism can and does play the same naturalising role for international law as it did for the US Supreme Court during the 20th century. Given that the core rules of international law are notoriously difficult to formally amend, interpretation is the only significant game in town, and entering the terrain of interpretation armed with a theory of indeterminacy can save us a lot of trouble, as can the realisation that structured indeterminacy means that international law can serve many but not all political projects.
A second reason why the indeterminacy critique may still be valuable is that…it is true. This sounds like a trite argument, but perhaps it is not. William Roberts has argued that we need to situate Marx’s work, and especially Capital: Vol 1, within the context of his prolonged fight with the so-called ‘utopian socialists’ of the 19th century. For Marx, it was imperative that workers relied on a scientific understanding of what was wrong with capitalism in order to effectively liberate themselves. For this reason, it was imperative to look far below the surface , behind the appearance of the capitalist economy, in order to discover the non-apparent truths about how capitalism is an impersonal force of domination. Of course, using the language of ‘science’ to describe social and legal inquiry does not sit well with our current sensibilities. However, it remains the case that staying with the (conventional or unconventional) materials of international law is essential in order to decipher how exactly it is that it contributes to domination and exploitation, even if these discoveries do not automatically translate into practical roadmaps for action. In this respect, both Polonskaya’s emphasis on the book’s methodology, and especially her analysis of my engagement with Althusser’s (and Lacan’s) concept of ‘symptomatic reading’, and Dao’s & Lindgen’s remark that my book urges us to ‘go back’ to international law’s text capture something fundamental about this project: international law is not exceptional, be it exceptionally noble or exceptionally evil. It is not the driving force of history either. However, it is, out of sheer chance or choice, the tiny, almost minuscule, part of the world that we, academic and practicing lawyers, understand better than any other ‘bit’ of this world. Figuring out something meaningful about it is not guaranteed to change anything at all, but it seems like the best option.