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Bachand, Remi --- "Capitalism as Civilisation: A History of Law by Ntina Tzouvala" [2022] MelbJlIntLaw 8; (2022) 23(1) Melbourne Journal of International Law 208


BOOK REVIEW

Capitalism As Civilisation: A History of Law by Ntina Tzouvala (Cambridge University Press, 2020) 276 pages. Price AUD160.95 (Hardback) ISBN 9781108497183.

Critical approaches to international law have been marked over the last 20 to 25 years by what can be called the ‘historiographical turn’ in international law.[1] While it has often been associated with the publication of Martti Koskenniemi’s seminal work, The Gentle Civilizer of Nations,[2] this trend is particularly important within the Third World Approaches to International Law (‘TWAIL’),[3] which are greatly inspired by the remarkable work of Antony Anghie. Although Anghie’s main book only came out in 2005,[4] his first articles on the subject were published in the late 1990s, and they had a major impact on critical literature.[5] For Anghie, the history of international law has been strongly marked by colonialism and the ‘colonial encounter’, from which many of international law’s rules, concepts and doctrine originated. Focusing in particular on the concept of sovereignty, he sought to deconstruct the history of international law to show that, on the basis of the West’s ‘civilizing mission’, international law has continually sought to promote a form of government ‘that furthers trade and civilization, where trade is understood to mean the trade conducted by Europeans seeking to advance their commercial interests in the non-European territory’.[6] This historiographical turn, it should be noted, has also been taken as an opportunity by some Marxist international legal scholars[7] who have, among other things (but not solely), set out to demonstrate the role of international law in the expansion and reproduction of capitalism. Broadly speaking, whether it was used by TWAILs, Marxists or critics of other tendencies, one of the purposes and effects of the critical recourse to history has been to challenge dominant narratives, generally based on liberal premises, which tend to see international law as an unavoidable factor of progress and tend to ignore its role in the reproduction of structures of subordination.

Ntina Tzouvala’s excellent book Capitalism as Civilisation: A History of International Law is set precisely in this historiographical turn.[8] Drawing on critical theory, the author focuses on ‘patterns of argumentation that persist despite historically contingent legal developments’.[9] More specifically, she argues that the concept of civilisation has become a mode of international legal argumentation and that this mode of argumentation is inspired by two distinct but complementary logics. The first of these logics is what she calls the ‘logic of biology’, which is inspired by a certain level of

scepticism, if not overt hostility, regarding the possibility of equal inclusion for non-Western, predominantly non-white political communities in the realm of international law, which rests on a deep-seated perception of cultural or racial inferiority.[10]

The second, the ‘logic of improvement’, sees this inclusion as possible and desirable, provided that these communities engage in a transformation of their society that is consistent with the needs of the capitalist mode of production.

Aside from the introduction (Chapter 1), in which she sets her theoretical premises, the book consists of four chapters (2 to 5) that cover different periods or episodes in which international law has had some relevance, and a short conclusion (Chapter 6). In the second chapter, which focuses on the use of the concept of civilisation by nineteenth-century international legal scholars, Tzouvala uses extraterritoriality as an example to show the relationship between these two logics. She begins by unpacking the logic of improvement and shows that it was driven by the imperatives of capitalist modernity, which demanded that non-Western societies adopt rules to protect property rights, judicialise social relations, etc. She shows that these reforms were necessary for these companies to avoid the imposition of foreign law through jurisdictional extraterritoriality. She then turns to the logic of biology to highlight the greater difficulty that non-white societies had in showing that they had evolved according to civilisational standards. Somewhat ironically, she also shows that even non-Western international legal scholars have bought into this logic, with the most critical among them going out of their way to show that their own societies had achieved the standards of civilisation rather than attacking the very legitimacy of those standards.

The third chapter focuses on the interwar period and in particular on the League of Nations Mandate System. For Tzouvala, this system was also based on the dual logic of improvement and biology. Breaking down the three categories of mandates (A, B and C, which corresponded, in the minds of its initiators, to the three different levels of development of the countries on which the mandates were imposed), she concludes:

In this respect, the Mandate System essentially incorporated the ‘logic of improvement’ while concretising its content. All political communities could achieve ‘civilised’ status in theory, provided that they implemented the necessary reforms, which involved socio-economic transformation with a view to spreading market relations and the capitalist mode of production outside the West. However, this was considered a rather theoretical prospect, as is evidenced by the fact that when the question of Iraq’s independence arose, the [Permanent Mandates Commission] was unprepared to deal with the issue.[11]

Similarly, Chapter 4 shows that this dual logic of improvement and biology was also central to South West Africa’s long saga before the International Court of Justice. By analysing the arguments of the various speakers before the Court, but also those of the Court itself, Tzouvala shows that the opposition between Westerners and non-Westerners on the outcome of the issue did not prevent them from using one of the two logics mentioned.[12] While Westerners often founded their arguments on the logic of biology, based on the implicit premise that Namibians were incapable of governing themselves,[13] non-Westerners relied on the logic of improvement, embedding their criticism of South African policies in the language of the Mandate System and the rise to civilisation. In doing so, Tzouvala comes to highlight the perverse effects of Namibian independence, since, according to her, ‘[t]he cost of this victory for the Third World was the abandonment of its radical critique of racial capitalism in Namibia as being incompatible with international law’.[14]

Finally, Chapter 5 takes us into the more contemporary terrain of Iraq and the debate around the ‘unwilling and unable’ doctrine.[15] Tzouvala shows that the logic of improvement was at work in so far as the restoration of full Iraqi sovereignty had to be achieved through neoliberal reforms; but that these reforms could only be achieved through aid from outside the country, as Iraqis were unable to implement them on their own (logic of biology). Similarly, Tzouvala argues, debates concerning the ‘unable or unwilling’ doctrine are also based on the same double logic. Indeed, if the manifestations of the logic of biology are present in the sense that this doctrine contributes to re-establishing ‘a system of graded international legal personality’,[16] the logic of improvement is also present in that it allows, through militarisation and adherence to the ‘global war on terror’ and cooperation, the achievement of full sovereignty.[17] These debates, Tzouvala claims, show once again the strength of her argument. According to her,

[o]n the one hand, the distribution of equal rights and duties under international law is deemed possible and conditional upon a set of identifiable pro-capitalist reforms. On the other, this ‘logic of improvement’ coexists with a ‘logic of biology’, which constantly negates or postpones this possibility of equal participation in perpetuity invoking or alluding to some supposedly immutable differences.[18]

I Once the Historiographical Turning Point is Achieved: What’s Next?

Tzouvala’s contribution is extremely convincing. The articulation between the two logics, that of improvement and that of biology, is persuasive and highlights all the ambiguities of the concept of civilisation. The author writes in an elegant style and adds to the critical deconstruction of international law’s history through an attack on liberal narratives, that sees international law first and foremost as a tool of emancipation against structures of subordination such as capitalism and imperialism. This project of historical deconstruction by Tzouvala and the other actors of the historiographical turn is essential. It shows that, contrary to what these ‘liberal’ international legal scholars think, international law is often part of the problem, and that its structure, rules, institutional or disciplinary biases and practices often consolidate and facilitate the reproduction of these structures of subordination. Firmly rooted in the Marxist tradition, Tzouvala organises her work from the perspective of the expansion of capitalism (although some of it is also aimed at racism or draws from feminism), and she does it very well. That being said, some limitations of the book cannot be ignored. In fact, the great qualities of Tzouvala’s book cannot overshadow some of the dissatisfactions that an internationalist, who was himself greatly inspired by Marx, may have with the recent evolution of Marxist approaches to international law, dissatisfactions that Capitalism as Civilisation has not managed to diminish.

In her conclusion, Tzouvala explains that her book

was situated within the comradely efforts of Marxist international legal scholarship to push TWAIL towards a clarification of its central terms, and notably towards the articulation of a clearer understanding of imperialism that centers the question of economic exploitation.[19]

It is from this perspective that she distinguishes herself from Anghie, such as when she seeks to rephrase, in the second chapter’s conclusion, ‘Anghie’s claim in order to understand the inclusion–exclusion dynamics of international law in relation to the historically specific relationship between international law, global capitalism and imperialism’.[20] Further on in her general conclusion, she provides her own definition of imperialism (with which I quite agree), which ‘centres the tendency of capitalism for unlimited expansion combined with its tendency constantly to create and re-create unequal development’.[21] This is a classic definition in line with the writings of Vladimir Lenin, Rosa Luxemburg and many others. These passages should be read in the context of what she calls a ‘very brief’ section that is nonetheless a fine introduction to the functioning of the capitalist mode of production, analysed from a Marxist perspective.[22] Considering the relatively similar methodology of Capitalism as Civilisation and Anghie’s Imperialism, Sovereignty and the Making of International Law, and a structure that also shares several resemblances (like Tzouvala’s book, Anghie’s has chapters on nineteenth-century international legal scholars, on the Mandate System and on the events following 9/11), one might therefore assume that the specificity of Tzouvala’s contribution compared to TWAIL and Anghie is to focus the analysis on how international law contributes to imperialism, ie to the expansion of capitalism, as she defines it. One might expect a full, assiduous and unrestrained engagement with the functioning of the capitalist mode of production and its imperialist expansion. For example, the author might have highlighted the characteristics of capitalism for each of the periods that make up the structure of the book, and to what extent these characteristics required that a particular institution, rule or type of discourse exist so that its expansion could be guaranteed. One might expect an ongoing struggle to highlight the extent to which the capitalism of any given era may have contributed to this or that type of institutional or disciplinary prejudice. Unfortunately, I do not feel that these expectations have been fulfilled. In fact, I do not feel that international legal scholars in the Marxist tradition (and I include myself in this lot) have done enough to achieve such a goal.

The book’s first limitation is therefore that it rarely goes beyond the stage of an analysis in which the standard of civilisation promoted by international law and international legal scholarship is seen as

a way of systematising and legitimising a wide range of juridical practices that sought to globalise the protection of property rights, the judicialisation of social relations, and the bureaucratic state that is separate from the economy and society, all justified with highly moralising references to civilisation.[23]

Tzouvala follows this idea (that of the extraterritoriality promoted by 19th century international legal scholars) and adds that

the protection of certain rights and liberties was an essential precondition of conforming with this image of civilised life. One obvious link between this criterion and the capitalist mode of production is that the specific rights guaranteed, such as life, property, travel of freedom of commerce, were directly related to commercial activities, especially those of Western merchant capitalists.[24]

There are, of course, a few (short) passages in which she discusses the tension created by the ban on slavery enacted by the Mandate System, which is a result of conflict between the importance of building infrastructure (using slave labour) and the ‘free labour [as] a precondition for the capitalist mode of production’.[25] Reference is made, of course, to the reforms imposed on Iraq by the logic of improvement that the author ‘equated not just with capitalism, but with a particular model of capitalist accumulation, neoliberalism’,[26] which she defines more clearly later on. Unfortunately, these passages seem far too brief, too few and too superficial to really claim to have taken capitalism by storm. Given the dozen or so pages of the introduction in which Tzouvala presents the Marxist analysis of the capitalist mode of production, and the wealth of literature on imperialism that is implicit in her definition of this concept, one would have expected a more exhaustive analysis of the cyclical vagaries of the capitalist mode of production and its links with the evolution of international law. One would have expected, in other words, more political economy.

The second limitation of the book follows the first. The author intends, as we have seen, to challenge TWAIL scholars to clarify their definition of imperialism. Coming from a Marxist, one senses in this statement a desire to push TWAIL scholars towards a more serious engagement with political economy. I fully embrace this objective and I myself pointed out a decade ago that one of the main shortcomings of TWAIL was that they ‘do not seem to make a truly thorough analysis of the functioning of capitalism’.[27] I am not entirely sure now that Capitalism as Civilisation is very different from, for example, Anghie’s main work. The latter, while it does not directly attack capitalism, nevertheless points out that as early as Vitoria, international legal doctrine sought to promote trade and the interests of European merchants. From this argument, it is easy to speculate that this doctrine and international law as a whole have sought to promote capitalism, unless one dissects in detail the intricacies of this mode of production, which Capitalism as Civilisation fails to do in my eyes. Let me be clear: these observations should be seen more as a collective self-criticism than as being addressed directly to Tzouvala. If I had to reframe this self-criticism, I would say that the historiographical turn has been important for critical studies (and in particular for Marxists) and it continues to be so. It is also very useful that some Marxists continue to be interested in the history of international law. However, two things must be kept in mind. First, as Marxists, we have a duty to refine the tools with which we engage with capitalism and it is necessary, when undertaking a historical analysis (but also when studying a contemporary situation), to go deeper into the historical form taken by capitalism at each period of our study. In other words, we need to go beyond the level of analysis where we say that international law has helped to protect property rights, trade, and the judicialisation of social relations. Second, Tzouvala concluded her doctoral thesis (the source of Capitalism as Civilisation) with a passage that has disappeared from the monograph under consideration in this review by stating that ‘progressive and radical lawyers’ engagement with international law should be centered around the understanding that, in the final analysis, our commitment does not lie with our discipline, but with social emancipation’,[28] and by speaking on the importance of devising tactics to achieve the goal of social emancipation. I completely agree with her and it seems tactically necessary to reflect on the proportion of energy we (Marxist international legal scholars) must collectively continue to invest in the historiographical turn compared to that used to attack the evils of the capitalist system here and now. In other words, while it is interesting to look at the historical dimensions of our academic field, just as it is important that critics, whether Marxist, TWAIL or others, do so in order to deconstruct liberal arguments, the struggle against capitalism and imperialism also primarily requires a critical analysis of the current social relations of subordination, and I sometimes think that our overinvestment in historical criticism diverts our energy from this endeavour.

Rémi Bachand[2]*


[1] See, eg, Ignacio de la Rasilla, International Law and History: Modern Interfaces (Cambridge University Press, 2021); George Rodrigo Bandeira Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’ (2005) 16(3) European Journal of International Law 539; Thomas Skouteris, ‘The Turn to History in International Law’, Oxford Bibliographies (Web Page, 17 February 2021) <https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0154.xml>, archived at <https://perma.cc/KMN8-DBAA>.

[2] Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001) (‘The Gentle Civilizer of Nations’).

[3] See, eg, José-Manuel Barreto (ed), Human Rights from a Third World Perspective: Critique, History and International Law (Cambridge Scholars Publishing, 2013); Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds), Bandung, Global History, and International Law: Critical Pasts and Pending Futures (Cambridge University Press, 2017); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press, 2011); Michael Fakhri, Sugar and the Making of International Trade Law (Cambridge University Press, 2014).

[4] Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005).

[5] Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40(1) Harvard International Law Journal 1 (‘Finding the Peripheries’); Antony Anghie, ‘Civilization and Commerce: The Concept of Governance in Historical Perspective’ (2000) 45(5) Villanova Law Review 887 (‘Civilization and Commerce’).

[6] Anghie, ‘Civilization and Commerce’ (n 5) 909.

[7] See, eg, China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill, 2005) 153–293; BS Chimni, International Law and World Order: A Critique of Contemporary Approaches (Cambridge University Press, 2nd ed, 2017) 477–98; Umut Özsu, Formalizing Displacement: International Law and Population Transfers (Oxford University Press, 2015).

[8] Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press, 2020).

[9] Ibid 6.

[10] Ibid 2.

[11] Ibid 102.

[12] Ibid 148.

[13] Ibid 142, 144.

[14] Ibid 165.

[15] For the record:

The ‘unwilling or unable’ doctrine proposes that when a state is subject to an armed attack perpetrated by non-state actors based in the territory of another state, the ‘victim state’ is entitled to use force extra-territorially in self-defence even if the actions of these non-state actors are not attributable to the ‘territorial state’, provided that the territorial state is ‘unwilling or unable’ to stop such attacks.

Ibid 190.

[16] Ibid 205.

[17] Ibid 206.

[18] Ibid 210.

[19] Ibid 217.

[20] Ibid 85.

[21] Ibid 219.

[22] Ibid 19–30.

[23] Ibid 59–60.

[24] Ibid 60.

[25] Ibid 120.

[26] Ibid 175.

[27] Rémi Bachand, ‘Les Third World Approaches to International Law: perspectives pour une approche subalterniste du droit international’ in Mark Toufayan, Emmanuelle Jouannet and Hélène Ruiz Fabri (eds), Droit international et nouvelles approches sur le tiers-monde: entre répétition et renouveau (Société de législation comparée, 2013) 395, 421 [tr author].

[28] Konstantina Tzouvala, ‘Letters of Blood and Fire: A Socio-Economic History of International Law’ (Doctoral Thesis, Durham University, 2016) 214.

* Professor of International Law at the Department of Legal Studies, Université du Québec à Montréal (Canada).


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