International Law and the Mystifications of Populism

• In Event: Poster Session: African Politics Conference Group; Middle East and North Africa Politics & Human Rights
  In Poster Session: Poster Session: Human Rights

Abstract

I propose a critical theory of the categories of international law in terms of the logic of capital drawing upon the 'commodity-form theory of law.' The social relations of the commodity are constituted such that they necessarily generate an international legal-form as a distinct mode of regulation. The conceptual-logical derivation of international law will be used to analyze the modern divergence between liberal internationalism and right populism. The contradiction between the two is intrinsic to the commodity structuring of modern international law.
Why does international relations take the form of international law? The question is counterintuitive. Traditionally, international relations theory views international law as epiphenomenal 'superstructure' which arises upon the geopolitical 'base' understood in terms of anarchy. Such approach has difficulty explain what makes international law a properly legal form of regulation distinct from other schemes. Correlatively, international legal theory has trouble distinguishing legal norms from other types of norms possible whether aesthetic, ethical or religious.
I build upon the 'commodity-form school of law' as proposed by Evgeny Pashukanis. According to Pashukanis, the legal subject socio-politically expresses the abstract equivalence between commodity owners. According to Marx, the social character of labor appears inverted as a relationship between atomized producers described by the theory of commodity fetishism. Pashukanis states there is a complementary legal fetishism in which the equivalency between commodity owners appears as the abstract equality of rights-bearing subjects. The social relations of the commodity necessarily generate the legal relation as the socio-political complement to the commodity relation. Although the bulk of his theoretical work takes place in a municipal context, his work has importance for international legal scholars for he provides a theory of legal-form in which sovereign enforcement is contingent. Indeed, Pashukanis goes further than just to claim a contingent relationship between law and sovereign authority. Rather, he argues that law in its earliest forms was the result of precisely the lack of such authority. This is a stunning theoretical illumination for international law scholars wherein the question of how law is possible between entities without superordinate authority has remained one of the central preoccupations of the field. According to Pashukanis, international law is not any less law because of the lack of third-party enforcement. On the contrary, it makes it an even purer form of law because the only thing that holds together the relations between international actors is the relation itself.
Despite its merits, Pashukanis ultimately overestimates circulation without the necessary moment of production. That is, the commodity-form theory obliterates the underlying class constitution of law and international law. Hence, the international legal-form is not just constructed on the basis of exchange but the capital-labor relation. The key concept is that of 'abstract labor' whereby concrete activity is abstracted as discrete quanta of total social labor. The social universe that is constituted by commodity-determined labor is also characterized by an abstract and concrete dimension. The former appears as the variegated surface of immediate sensuous experience while the latter as the its general homogeneous dimension is accorded a quasi-natural objectivity. The legal-form emerges out of the latter as the basic relations which tie abstract individuals to each other and a generic title to society.
The derivation of international in terms of abstract labor and the commodity will be used to critique the contemporary divergence between liberal internationalism and right-wing populism. Discontent over the international order has come to the forefront of fierce debates between the liberal center and the far right. Much of these debates have, however, taken on the character of conspiracy with heavy undertones of racism. Far right populists present a picture of shady 'globalism' staffed by 'cosmopolitan elites' who exploit the 'common people' as represented by the nation. What my analysis indicates is that the contradiction between internationalism and populism is one intrinsic to the commodity-structured character of modern international legalization. On the one hand, liberal internationalists affirm an abstract cosmopolitanism that serves as apologia for capital. On the other hand, the populist critique fetishizes the concrete in which the domination intrinsic to capital is reified in racialized personification such as the immigrant, the refugee or the Jew.

Author

• Kailash Srinivasan, The Ohio State University