BOOK Symposium: A REACTION FROM NTINA TZOUVALA
In the introduction of my monograph, Capitalism as Civilisation: A History of International Law, I tried to think about what it means to conceptualise (international) legal scholarship as a productive act of reading (p.13), while remaining conscious of the fact that this reading produces a text that will itself be read productively by others (p. 43). What I should have added is that to be read by others is to lose control over one’s own text, which ceases being your own and starts leading its own, peculiar life. Paradoxically, this loss of control is the best thing any author can hope for. I am grateful that Patrícia Barros, Luis Bogliolo, Matheus Gobbato Leichtweis, and Ximena Sierra-Camargo engaged in such careful, generous and critical readings of my book and to reflect on how my own work does and can interact with studying and practicing international law in Latin America.
Three important themes arise from these contributions: the position of Latin American (and, s more broadly, semi-peripheral) international lawyers within my argument and the political, legal and historiographical implications of such position; the relationship between general theories of law and the states and concrete legal arguments and struggles; and, finally, the implications of my own argument for our broader engagement with and understanding of international law, including the possibilities to mobilise it for progressive goals.
Barros, Bogliolo and Sierra-Camargo all discuss whether my argument about ‘civilisation’ tells us anything useful about Latin American international lawyers and, more broadly, the way my argument sits within broader critical theorising about Latin America’s position within global capitalism. Barros rightly observes that my engagement with Latin American international lawyers is relatively limited in its scope (both temporarily and in terms with the scholars I study at depth). This is true. My intervention cannot and does not purport to stand in the place of detailed legal histories of semi-peripheral lawyers, and other (arguably) counter-hegemonic voices. Scholars such as Scarfi, Vecoso and Barros herself are currently engaging in such projects of retrieval and re-evaluation. What my work aspires to do is to offer a theoretical framework for thinking through these detailed legal histories, one that -as Bogliolo also points out- is attendant to the class position of (most) international lawyers as organic intellectuals of domestic capitalist interests. In this sense, my book attempted to illustrate the difference between challenging the ‘standard of civilisation’ and seeking to be considered ‘civilised’. Barros asks whether Latin American international lawyers had any choice other than engaging in ‘civilisational’ types of arguments. My answer slightly reframes the question: once one accepts the logics of accumulation, Indigenous dispossession, and global competitiveness as inevitable or desirable, then embracing ‘civilisation’ becomes an obvious, easy and occasionally effective choice.
Sierra-Camargo raises a broader question about the potential synergies between my own argument and critics of Latin American dependency theorists. She observes that dependency theorists (of the Marxian and non-Marxian varieties alike) understood Latin American ‘underdevelopment’ as the result of the region’s unequal integration into global capitalism rather than as the absence of capitalist development. Dependency theories went on to propose various national strategies of development to rectify these distortions. Sierra-Camargo shares the scepticism of decolonial theory and of Frantz Fanon toward these proposals. Somewhat unsurprisingly, I understand my own argument to be heavily indebted to Fanon, but not necessarily to decolonial theory. Fanon’s concerns that postcolonial ruling classes (which, he insisted, were ‘good for nothing’) would highjack decolonisation not only turned out to be entirely accurate, but they also demand that we resist equating the interests of the ruling classes as condensed in and by the state with the interests of the masses. My own work insists that, if read properly, arguments made in the register of ‘civilisation’ reveal this disjuncture of interests along class lines and challenge the heroic representations of semi-peripheral lawyers.
I am, however, much more sceptical about my intervention’s relationship with decolonial theory. Mignolo does centre ‘the global’ as his unit of analysis, which is certainly politically and intellectually appealing. However, ‘global coloniality’ in his work remains primarily epistemological, rather than social and material. When all is said and done, ‘global coloniality’ is constructed by intellectuals and can be resolved by them. The lithium mine, the Apple factory, the Amazon warehouse remain at the background of this story. To the suspicious reader, Mignolo’s prescription appears to be one of cultural diversity (perhaps, one taken to new levels), not of global political economic transformation. My own argument, to the contrary, is that ‘civilisation’ reflects-in however a mediated way- the contradictions of global capitalism. It is precisely for this reason that even the most skilful international lawyers remained trapped within ‘civilisation’s’ bifurcation and instability, and have been unable to resolve these contradictions on an argumentative level (p. 168).
What can intellectual production do then, if it cannot by itself resolve these contradictions? I am in total agreement with Bogliolo’s diagnosis about what it should not do, namely produce ahistorical accounts of law and the state that serve more as mystifications and legitimisations of the civil law (in the case of Brazil, but also in my own country, Greece)than as intellectually defensible propositions. This does not mean that a general theory of capitalist international law is impossible or undesirable (p. 220),and in my view historical materialism is the tradition most likely to construct a persuasive argument on that front. However, I remain somewhat unconvinced that the Pashukanian ‘commodity form theory’, especially as put forward by China Miéville, allows us to engage sufficiently with law as a complicated argumentative practice, as opposed to a stable set of rules. I am, however, intensely relaxed about the aspect of Miéville’s work that Gobatto Leichtweis describes as ‘legal nihilism’, which often revolves around the powerful concluding sentence of his book (‘[t]he chaotic and bloody world around us is the rule of law’). Gobatto Leichweis wonders to what extent my own account differs from that of Miéville’s. Here, I am in agreement with Robert Knox, who has argued that Miéville’s intervention has been misread, as he never pronounced on whether states, social movements and activists can use international law instrumentally for their own, progressive purposes. In other words, one can both think that international law is capitalist and imperialist all the way down, and still accept certain tactical engagements with it. However, my own engagement with the ‘standard of civilisation’ has convinced me that many international lawyers, including critical ones, are wildly optimistic on that front. Chapter 4 revisits the ambitious and creative efforts of lawyers to use the ‘sacred trust of civilisation’ against South Africa’s imposition of a rigid model of racial capitalism in Namibia (then South West Africa). As I show in detail, this argument backfired long before the ICJ’s indefensible 1966 judgement. This happened in a context of a favourable international balance of power, growing, militant resistance in Namibia, and a climate of renewal in international law. One is then left wondering whether it is unrealistic to proceed as if we currently have more manoeuvring space than out forefathers did in the 1960s, or whether theirs should be a cautionary tale.
College of Law Australian National University