BOOK SYMPOSIUM CAPITALISM AS CIVILISATION
As a law student at the University of Brasília, I spent the greater part of the first two years of the course studying so-called ‘general theories’ – of the state, of public law, private law, criminal law, procedural law and so on. Having swerved to the field of international law at a time when an influential Latin American human rights scholar and judge was elected to the International Court of Justice (ICJ), it was hard to resist the temptation to engage with and contribute to the formulation of some sort of general theory of law in which international law would have its honourable and proper place.
Yet years later I am convinced and committed to the argument, brilliantly exposed by Tzouvala in Capitalism as Civilisation, that ‘a general theory of law, across time, space, and modes of production is both impossible and undesirable’ (p. 17). This is at the heart of what I believe to be the major contribution of Tzouvala’s book: a compelling historical materialist method for international law which builds on decades of critical legal scholarship emphasising nuance, contingency and complexity, and pushes it further by not shying away from the pursuit of explanation (p.214). But in pursuing explanation and the mapping of the structural contradictions and entrapments of international legal argument, Tzouvala also avoids the reification of law that is often the result of some Marxist engagements with international law. By placing international legal argument squarely within the uneven and combined global spread of capitalist relations, Tzouvala offers a cogent account of how the standard of civilisation has developed and of what it does in the world that is at the same time limited in its object of investigation and tremendously powerful as a theory and method for international law.
Tzouvala’s deep and careful reading of international legal materials and her argument on how the ‘standard of civilisation’ oscillates between the ‘logic of improvement’ and the ‘logic of biology’ (p. 45) would have made a great book in its own right. The move from approaching ‘civilisation’ as a legal term that we need to define to approaching it as an argumentative structure is particularly helpful in understanding its persistence and malleability, from far-right political discourse to international legal documents. More importantly, it is a call and a warning against reminiscing on the decay of the (neo)liberal international order at a time when an ascendant far-right has indulged in more open racism and sexism. It prompts us to think carefully about the limitations that civilisation as an argumentative structure poses to critiquing law’s complicity in devaluing human life and the destruction of the environment (p. 219).
The book’s focus on civilisation is vindicated by its pervasiveness as an argument that cuts across different regimes of international law, from self-determination and human rights to use of force and international humanitarian law, to name a few. As Tzouvala demonstrates, the transcendence of fragmentation is often essential to understand the broader relevance of certain argumentative patterns (p. 169). But to go back to my starting point, the book is much more than just a compelling explanation of civilisation as an argumentative pattern that transcends fragmentation. Civilisation is not a topic chosen simply because of its ubiquity and appeal, but because of its necessity as a mediator, in international legal discourse, of the contradictions of the uneven and combined expansion of capitalism (p. 40). It is this grounding of international legal argument in the context of the of the global spread and reproduction of capitalism that allows the author to expose why international law as a language may be indeterminate, but that such indeterminacy does not mean it is open to all and any politics (p. 41).
For us Latin Americans interested in the history and theory of international law, the book offers a footprint for continuing and advancing a number of exciting and urgent research projects on the development and meaning of other argumentative styles, personal trajectories and contingent historical events relevant to the discipline which are ultimately overdetermined by the contradictory patterns and peculiar forms of capitalist expansion. It is in this sense that Tzouvala’s innovative method urges us to read international legal texts symptomatically (p.11). This would involve taking seriously the limitations of international law as a tool of emancipation, as well as the class position and ideological function of (Latin American) international lawyers as mediators and facilitators of capitalist transformation in transnational and domestic contexts (p. 216).
In my personal field of research – international humanitarian law (IHL) –, one where civilisation as a structure of argument has been shown to persistently undermine its claim to universality, the method sketched by Tzouvala in her opening chapter has led me to start thinking more clearly and profoundly about the need to place legal arguments concerning technology and warfare in the context of the reproduction and expansion of capitalist relations through the growth of the state and of professionalised military forces to the more recent (re)privatisation of large swathes of warfare. This will involve reading IHL texts symptomatically, trying to trace specific legal arguments to changes in the form of empire, of the state and of militaries, paying attention to the nuanced forms through which these changes happen in different places and at different times, while not losing sight or eschewing the bigger picture.
No more illusions about general theories of law. If (international) law means anything we need to be clear about which law we are talking about, at what time, who is using it, for what and with what consequences. In this task, Capitalism as Civilisation provides an invaluable contribution to the theory and method of international law and this is, in my opinion, its greatest achievement.
ARC Postdoctoral Fellow with the Laureate Program in International Law
Melbourne Law School