BOOK Symposium: CAPITALISM AS CIVILISATION
The history of international law is permeated by - not always open to - references and influences from the colonial project. Especially after the turning point reading of international law made by Antony Anghie, in his iconic work Imperialism, Sovereignty and the Making of International Law, and also due to the masterful historiographical contribution of Martti Koskenniemi, the discipline has received a series of studies that attempts to reflect on how the colonial heritage operated or is still operating in the international legal realm. Despite many historical connections have been detected and explored, inflections on the role of capitalism in the structure of international law argumentation are rare.
The book Capitalism as Civilisation: A History of International Law, written by Ntina Tzouvala, presents a distinguished and an innovative approach of the discipline’s past from the lens of the capitalist phenomenon. It represents a theoretical and methodological effort to articulate some premises of Marxist theory with the civilisational argumentative pattern in the context of international legal discourse. The basic Tzouvala’s thesis is that the civilisation category operates through the history of modern international law, oscillating between the contradictory logic of improvement and logic of biology, and enabling the distribution of rights and duties amongst states according the tenets of capitalist modernity.
The book’s argument unfolds in six chapters. The first chapter establishes the theoretical and methodological framework in which the civilisational pattern will be analyzed. The author explains that “civilisation” is not a unitary legal concept, but it has to be understood as a mode of legal international argumentation used to justify the oppression in a broad sense of non-Western states. The inclusion of these communities in the international system is, on the one hand, possible and desirable, depending on the adoption of particular internal reforms according to the necessities of modern capitalism (logic of improvement), and, on the other hand, the equal inclusion is impracticable because of a deep perception of an impassable cultural or racial inferiority (logic of biology).
Tzouvala attempts to integrate the historical movement in the discipline with a structuralist approach of persistent argumentative structures. In other words, the author defends a “materialist method for international law” and the necessity of a critical reading of the discipline’s materials, especially mapping omissions and silences in order to identify the subjacent problematic and the already existing meaning. The mains focus is the interplay between international law, imperialism and capitalism. Tzouvala highlights the Marxist theory of primitive accumulation and the instrumentality of (international) law in this historical process and for the transition to imperialism. The categories of race, gender or sexuality are used as metaphors to explain the unequal distribution of rights and duties by international law. Intending a “reconciliation of Marxism and deconstruction”, Tzouvala discusses textual indeterminacies and works with material structures, like international institutions.
The chapter offers an overview of the book and shows a well delimited argument. Two aspects have to be highlighted. First, the civilisation pattern derives directly from Anghie’s construction about the civilizing mission and the dynamic of cultural difference. Tzouvala presents her proposal as a critical reworking of his categories. Indeed, her argument is more sophisticated and she seeks to understand the dynamic relationship between international law, global capitalism and imperialism. Despite the merit of the author’s contribution to the referred doctrine, Anghie's considerations are reflected throughout the text. The second aspect is her critique to Koskenniemi’s work on the structure of international legal argument. He attributes the contradictory patterns of argument to the liberal doctrine of politics, while Tzouvala argues that these argumentative contradictions reflect the real contradictions of capitalism as global system. However, it could be further explored why Koskenniemi’s opinion on the topic is not crucial for understanding the argumentative structure of international law.
The chapter 2 is dedicated to discussing the standard of civilisation in Nineteenth Century. The author advertises that a proper understanding of “civilisation” in that period requires to seek patterns of international legal argumentation and their underlying premises instead of a specific concept. This move allows the interpreter to go beyond explicit invocations of the term in order to comprehend the way civilisation shaped international legal argumentation. Tzouvala highlights the works of peripherical and semi-peripherical lawyers and the way they articulate the civilisational argumentative pattern.
When dealing with peripheral lawyers, Tzouvala limits her considerations basically to the works of Arnulf Becker Lorca and Liliana Obregón and to who they cited (Carlos Calvo and Alvarez). Researching on Latin American internationalists likely is not Tzouvala’s aim. However, considering the intense operationalization of international law by Latin American lawyers, in addition to the regional doctrinal contributions to the discipline, a greater dedication to the subject would provide her work with a more consistent argument, in addition to a stronger connection between the argumentative structure of international law and the advance of capitalism in Latin America.
On the other hand, despite the use of the civilising argumentative pattern by peripheral lawyers to plead their international demands, the author does not sufficiently problematize the issue. It would be interesting to ask whether these internationalists had the real option of seeking an argumentative line outside the aforementioned dynamic or even if this would be advantageous in terms of defending the interests of the states they represent. In this setting, could be expected an emancipatory character from international law? The civilisation dynamic was used in many other situations by peripheral lawyers, as following chapters show, and the justifications are numerous and complex.
In chapter 3, it is discussed the institutionalisation of civilisation in the Interwar period through the League of Nations and the Mandate System. As the welfarism entered the international legal argument, for non-Western states to seek emancipation, they have to comply with some basic standards of welfare provision. The chapter 4 seeks to show the controversial case of South West Africa before the International Court of Justice. Despite the absence of a judgement on the merits, ICJ ruled on a broad and relevant range of questions, as the continuing existence of the mandate or the modalities of supervision. Both applicants used the civilisation patter according to their interests. In chapter 5, the legal arguments for the civilising missions of the Twenty-First Century are analyzed. In the context of war on terror, Tzouvala maps how the standard of civilisation justified the occupation of Iraq (2003-2004) and the extraterritorial use of force on the grounds of self-defense in Syria attack. It is demonstrated the “unwilling and unable doctrine” as a setting where the logic of improvement and the logic of biology operate.
Finally, the chapter 6 traces some conclusions on the already referred contradictions of the civilisation argumentative pattern. The author concludes expressing the desire that the book enables the reader to draw broader “conclusions about the arguments, strategies and tactics available to us in this context of unprecedented urgency, these would involve resisting the sirens of conditional inclusion at all costs.”
Ntina Tzouvala has a strong Marxist theoretical reference, however she frequently criticizes the foundations of this scholarship, aligning herself in several points with the Third World Approaches to International Law. The feminist perspective of international law also appears in her book, notably from the bibliographic references, which are constantly quoted throughout the text. This is a remarkable and commendable effort. In short, Tzouvala succeeds in undertaking an analysis involving textual indeterminacies and material structures. Certainly, it is a quite instigative reading that not just offers fresh insights, but mainly lead us, as academics, to reflect on how we have contributed to the maintenance, questioning or subversion of the argumentative structure of international law.
PhD in Law Candidate, at University of Brasilia, Brazil