‘Darling, imagine, how wonderful! Charges have been brought against me by the war minister von Falkenhayn… Imagine, what kinds of evidence one can bring forward, and make reparations for what the donkeys in the Reichstag have failed to do’. (Rosa Luxemburg in a letter to Paul Levi, 13 May 1914)

Rosa Luxemburg had charges brought against her twice in 1914, first for sedition and then for slandering the German Army. In this short reflection, I argue that the strategy of rupture that she employed in the courtroom can act as inspiration for an anti-imperial praxis and pedagogy of law. More specifically, Luxemburg’s tactical use of law and the use of the courtroom as a space for communicating with a broader public is instructive for both practitioners and teachers of international law. Her strategy of rupture can be used by law students in simulations and mock trials (mooting) to politicise the courtroom, and to view it as a space of solidarity, not just one of individual satisfaction.

I. Luxemburg and Levi’s Strategy of Rupture

In 1913 and 1914, on the eve of the First World War, Rosa Luxemburg gave speeches against militarism and capitalism throughout Germany. She described the political and social context as a ‘moment of armament lunacy and war orgies’. As a socialist internationalist, Luxemburg was against the nationalism that is spurred by wars across borders. As political theorist Lea Ypi puts it, Luxemburg believed in the ‘internationalist promise of concern for the whole working class regardless of national boundaries’. In war, workers formerly united across borders against capitalists were forced to turn on each other. Militarism was for Luxemburg not only about capitalist accumulation (securing new spaces to reap surplus value), but also about the breaking of working class struggle against capitalism. In early 1914, Luxemburg had already been sentenced to a year imprisonment on charges of sedition when she began to raise the topic of the desperate living conditions and mistreatment of soldiers in her public speeches. A further set of criminal charges were brought against her, this time by the war minister von Falkenhayn himself regarding slander of the German officer corps. 

The strategy Luxemburg and her lawyer, and lover at the time, Paul Levi devised, was to ‘turn the tables’, as Kate Evans puts it succinctly, ‘to put the military establishment in the dock’.^[1] Luxemburg welcomed the news of the charges as a political opportunity. Before and during the trial, Luxemburg and Levi (along with her other lawyer Kurt Rosenfeld) brought attention to the fact that the judges were former military officers, and therefore part of this very establishment. They hacked up a plan to flood the court with evidence and witnesses who could speak to the systematic abuse of soldiers in the army. The press was involved in this strategy, not only to report on the proceedings, but also to call on victims to come forward. 30,000 cases of abuse were submitted to the court in this way. 922 former soldiers were ready to act as witnesses, around 100 came personally to the first hearing.^[2] Rosa had faith in the masses for political action, and here she was able to mobilise them. Finally, on 4 August 1914, the charges against her were withdrawn. 

However, this was only a small victory: The charges were withdrawn on the very day when the German SPD (Sozialdemokratische Partei Deutschlands, the social democratic party), was to vote on the granting of war credits – essentially the financing of the war through state coffers. Luxemburg, as part of SPD’s left wing, had passionately opposed this. Luxemburg’s trial of rupture did not stop the war, and it did not stop the SPD voting for the war credits; there were stronger historical forces at play. But it did cause a public debate and protest around structural issues of militarism and capitalism, and solidarity among the working class and soldiers. Even if they were ultimately unsuccessful in persuading the political and legal establishment about anti-militarism, Rosa and her lawyers were able to reach a broad audience. They also mobilised a young group of lawyers into thinking about breaking the ‘apolitical’ sanctity of the courtroom, inviting them to view it instead as ‘a political battlefield where class solidarity and sacrifice must override any “legalistic” concern with an individual client’s fate.’^[3]

II. Mooting

Mooting is a simulation exercise often employed, particularly in Common Law countries and in International Law, as part of the education and ‘training’ of lawyers. Mooting involves students receiving a hypothetical case and adopting different roles, mostly that of advocate/legal counsel. Mooting mostly, and significantly, takes the form of competitions where two teams of would-be advocates appear before a ‘judge’ to argue a pre-prepared case. There are commonly elimination rounds. The Jessup Moot is perhaps the most famous international law moot. Although the case often revolves around political issues, law is set up as apolitical in the courtroom – the task of the advocate is to solve doctrinal ‘puzzles’ or conundrums. One wins on the basis of legal arguments. One wins against another team, not for a client or community. In this form of mooting, the courtroom is a depoliticised space. Structural injustices of capitalism and imperialism are obscured from the legal space through legal technologies. This is to be understood broadly; from the architecture of the courtroom and its exclusions, to the appointment of judges and their biases. 

Indeed, undergraduate law students do not regularly encounter the courtroom as a political space. The closest they might come to this is through learning about strategic litigation. Strategic litigation is an important political tool (not least for climate litigation), but its potentially radical nature is often compromised through acceptance of the power of the courtroom, and more generally viewing law as a vehicle for change.

III. Radical Mooting

In an experiment that we called ‘experimental mooting’, Wouter Werner and I conceptualised a different form of mooting that gives participating students the option of adopting a strategy of rupture. In this non-competitive moot, students are given a real case in which the facts are contested. They exist in real-world material circumstances. The students are asked to devise a strategy as defence and prosecution, presented in opening statements. Students from Zimbabwe, Rwanda, China, Indonesia, the UK and the Netherlands (this year with the addition of Suriname), are randomly mixed to form teams. An important element is the inclusion of a media strategy (echoing Luxemburg’s 20^th century appeal to the media), including a (21^st century) hashtag campaign. 

A radical strategy of rupture is one option for the students to choose. ‘Radical mooting’, which adopts the strategy of rupture, is an invitation to think critically about the courtroom, the law, the role of lawyers within it, and capitalist-imperialist society at large. Following Luxemburg and Levi, the courtroom as a space is transformed into a forum for political agitation. Discussions about rupture vary in scope and breadth. From thinking more generally about the legal form, to considering modes of reproduction of privilege, as well as the more mundane questions of dress and decorum in the courtroom. In the past year, we were in discussion with colleagues working on feminist judgments project, on community lawyering projects, and on emotions in the courtroom. We spoke about our experiences – including discriminatory or privileged – of the courtroom. Viewing material conditions as constitutive of the courtroom allowed us to move to a space which Chandra Mohanty describes as understanding ‘race, gender, nation, sexuality, and colonialism not just in terms of static, embodied categories but in terms of histories and experiences that tie us together – that are fundamentally interwoven into our lives’.^[4] Viewing the courtroom as a political space permits conversations that acknowledge the history of liberal legalism as one complicit in and indebted to imperial and capitalist relations. In its foregrounding of structural inequalities of race, class, gender, and ableism, radical mooting can be thought of as reparative in the sense of reparations as decolonial praxis.^[5] In this way, radical mooting aims to bridge the theory and praxis gap. 

Conclusion

The strategy of rupture can be adopted by anti-imperial lawyers, and, in the setting of the law school, by students as a radical mooting tool. Luxemburg’s strategy of rupture was arguably informed by a rejection of the submission to the sanctity of the courtroom, which would have placed political power in the hands of the law. In Luxemburg’s view, change must come from below, from what is often sometimes elusive, yet also incredibly powerful in her writing, from ‘the masses’. The strategy of rupture has the potential to bring structural questions before a court, questions that tend to be hidden in liberal courtrooms, including those of international law.

^[1] Kate Evans, Red Rosa, 

^[2] Ernst Piper, Rosa Luxemburg: Ein Leben (Pantheon Verlag 2021) 445.

^[3] Henning Grunwald, Courtroom to Revolutionary Stage: Performance and Ideology in Weimar Political Trials,  (OUP 2012) 17.

^[4] Mohanty, p. 191. 

^[5] Following Olúfémi O. Táíwo, Reconsidering Reparations (OUP 2022).