As critical international lawyers have long pointed out, the relationship between international law and capitalism tends to assume a fundamentally dialectical character. On the one hand, throughout its history international law has actively facilitated the expansion of what after Wallerstein one may call the regime of historical capitalism from its European homeland into the non-European parts of the world. On the other hand, it has also created the very institutional space in which this process of expansion has taken place, developing and legitimating the corresponding technologies, forms, and mechanisms of governance, not least the Westphalian nation-state itself.
Crucially, however, as commentators from Duncan Kennedy to Fleur Johns have noted [1], a large part of what has historically made this process of expansion work so effectively has not been achieved through the use of “traditional” public international law regimes and structures–even though they too have unquestionably played an important role–but through the use of what in the modern liberal literature is often depicted and theorised as “hybrid” or “soft” power mechanisms: best business practices, good governance codes, industry certification regimes, private commercial law, etc.
Just as capitalism and imperialism may come in many different forms and institutional configurations [2]–and it remains the first task of the Marxist legal scholar never to overlook the basic consequences of this fact, even if only for the sake of not falling into the trap of vulgar derivationist reasoning–so too should we constantly remind ourselves that there exists “no natural condition for [international] law” [3] when it comes to developing our conception of what exactly we understand by “international law” in the context of a conversation about its relationship with imperialism. Depending on which contexts they find themselves in, different historical agents may find different modalities of law-making and “different levels of binding power … appropriate in different circumstances”. [4] There is no structural logic that automatically binds the expansion of imperial governance to the use of any specific set or cluster of international legal regimes, doctrines, or institutions.
The importance of this last insight may not immediately seem clear. But if one considers its implications for the idea, still very popular in some Marxist circles, of inherently emancipatory legal doctrines and regimes, be it “social and economic rights”, “national self-determination”, or the “developmental state”, one can begin to glimpse its full critical significance. In the world of capitalist modernity, there is no inherently emancipatory or anti-imperialist legal doctrine, rule, institution, theory, or regime: depending on the circumstances at hand, any given international legal doctrine, rule, institution, theory, or regime can be drafted into the service of the capitalist imperialist agenda. To believe otherwise would be intellectually naïve and politically irresponsible.
It is from this premise that B. S. Chimni’s argument in “International Institutions Today: An Imperial Global State in the Making” begins. [5]
Complex and nuanced in its underlying theoretical agenda but also accessible in its general exposition, Chimni’s argument rests upon a combination of three basic theoretical influences: (i) a turn-of-the-millennium Robinson and Harris-style argument about transnational class formation [6]; (ii) Nicos Poulantzas’s theory of the state as an institutional condensation of the underlying relationship of forces among the respective classes and class factions [7]; and (iii) a basic legal realist argument about legal structures and processes having to be judged by their practical impact and consequences as opposed to the stated intentions of their designers or operators. Putting all three of these sources together, he states his main contention right from the outset:
“International Institutions (II) have today acquired a significance for third world states and peoples that they never possessed before. A network of economic, social and political IIs has been established or repositioned, at the initiative of the first world, and together they constitute a nascent global state whose function is to realize the interests of transnational capital and powerful states in the international system to the disadvantage of third world states and peoples. The evolving global state formation may therefore be described as having an imperial character.” [8]
Note the way that the idea of dialectical emergence combines here with the classical Marxist theme of the irreducibility of social realities to their appearances. Insofar as it makes sense to speak of a global imperial state, the structural formation in question, argues Chimni, can only be termed “nascent”: the global imperial state has not (yet) reached the stage of full, express institutionalisation. For the time being, like the Althusserian structure-in-dominance, it only exists in and through its effects, observable solely through the ordering patterns it inflicts on the broader landscape of global class struggle and the accompanying institutional forms and platforms through which it is refracted and by which it is fragmented and mediated.
The argument that follows this opening statement begins in a fairly uncontroversial manner. There is nothing specifically Marxist about this part of Chimni’s account:
“IIs have come to exist in all areas of international relations–economic, social and political–considerably limiting the autonomy of sovereign states. This loss of autonomy has serious consequences for third world states and peoples.” [9]
While in formal legal terms many of these states can still be described as sovereign and independent, from the standpoint of their actual ability to decide their political destinies they are anything but. In many cases, effective “economic decision-making authority has been relocated from states to international economic institutions … that possess effective enforcement powers”. Those institutions that “had adopted a critical [stance] in the past have been repositioned and normalized”. The legitimacy of some of them has consistently been undermined; others have been starved of funding and political support. [10]
So far, so uncontentious. While certainly not devoid of sharp critical insight, Chimni’s argument up to this point follows the fairly familiar lines of traditional left-liberal critique. But then comes the first “theoretical escalation”: the next characteristic pattern of institutional developments that deserves our attention in the present context, Chimni argues, is the rise of “global civil society”. And the reason why this has to be factored into our analysis is because it is here–at the intersection of the institutional processes connecting the various international non-governmental organizations with international institutions pursuing human rights and other aspects of the “social” agenda–that we begin to see most clearly the functional outlines of the global ideological state apparatuses. [11]
The reorganisation of the traditional circuits of sovereignty induced by these developments, notes Chimni, has not only “transformed the meaning of democracy in the Third World” by “empt[ying] it of its content” (in view of the fact that “irrespective of which party of coalition is voted into power in general elections today, the economic and social policies that it would pursue would remain the same in their essentials”). [12] It has also undermined the traditional forms and mechanisms of resistance and counter-hegemonic struggle. [13] The transformation of the knowledge-production and knowledge-dissemination apparatuses of international institutions and their “global civil society” counterparts into sites and platforms for the relentless ideological whitewashing of these developments has further exacerbated the effects of resource asymmetry, making the generation of an effective and large-scale resistance movement ever more challenging.
While each of the different parts of this puzzle may seem familiar, putting everything together does not immediately add up to a clear conclusion. One cannot make sense of all these different trends and developments, observes Chimni, so long as one continues to look at them through the lens of classical international society / international order theory. This analytical blockage, however, immediately dissipates if one applies to the presented facts the basic Poulantzasian theory of the state as refracted through the theory of the transnational capitalist class.
In its basic form the main theoretical contention underpinning Chimni’s entire argument can be reduced to the following two-pronged claim:
(i) given that the state is the institutional condensation of underlying class relations, once the scale and patterns of the dominant modes of class relations begin to assume an expressly globalised character, it is only a matter of time before there begins to emerge an equally globalised state-like formation;
(ii) that time has now come.
As can be seen, the concept of the global imperial state that lies at the heart of Chimni’s analysis
“assumes a particular understanding of ‘state’. First, it does not imply, at least in the short and medium term, the replacement at a structural level of the sovereign state system, but rather its transformation in a manner that facilitates the construction of a global state. Second, it is contended that the global state is being constituted at the functional level by a combination of certain legal, political, sociological and ethical elements.” [14]
Some of these elements find their practical realisation in institutional clusters composed of international organisations, others through “global civil society”. However, one thing that must be noted, cautions Chimni, is that the rise of the global imperial state does not (at least for now) signal an historic transcendence of the Westphalian nation-state as a “superseded” institutional form. The interests and broader politics of the transnational capitalist class, Chimni observes, are advanced and articulated not only through a network of functionaries and transnational business organisations, but also by nation-states, both from the First World and the Third World “camps”. Everything else aside, this is a pattern that clearly highlights “the continuing significance of sovereign states even as the global state emerges”. [15]
The idea that the rise of imperial modalities of governance does not sideline the Westphalian nation-state is not, of course, novel. Nor in itself is it indicative of a specifically Marxist theoretical sensibility. One can detect its presence across a broad spectrum of left-leaning and critical discourses, going back at least several decades.
A typical illustration of a modern-day Marxist restatement can be found in Ellen Meiksins Wood:
“the [nation] state lies at the very heart of [this] new global system. … [N]o other institution … has even begun to replace the nation state as an administrative and coercive guarantor of social order, property relations, stability or contractual predictability, or any of the other basic conditions required by capital in its everyday life.” [16]
The value of Chimni’s analysis–and his main contribution to the development of the contemporary MTS debate–lies in moving the focus of analysis from this fairly common contention to a far more critically provocative thesis: in the contemporary historical conjuncture, the conceptual framework traditionally associated with the Marxist conception of the state has to be deployed simultaneously in two essentially different configurations, so as to account for two fundamentally distinct but systemically interrelated logics of “institutional condensation”, the one operating at the level of the Westphalian nation-state, the other at the level of the global imperial order.
[1] See Fleur Johns, Non-Legality in International Law (2012); Duncan Kennedy, “Three Globalizations of Law and Legal Thought: 1850–2000”, in David Trubek and Alvaro Santos (eds.), The New Law and Economic Development: A Critical Appraisal 19 (2006); also available at http://www.duncankennedy.net/documents/Photo%20articles/Three%20Globalizations%20of%20Law%20and%20Legal%20Thought.pdf.
[2] A good starting point (even though neither author is strictly a Marxist scholar) is David Soskice and Peter Hall, Varieties of Capitalism (2001).
[3] Joel Trachtman, “The International Economic Law Revolution”, 17 University of Pennsylvania Journal of International Economic Law 1, 43 (1996).
[4] Ibid.
[5] See B. S. Chimni, “International Institutions Today: An Imperial Global State in the Making”, 15 European Journal of International Law 1 (2004).
[6] See William Robinson and Jerry Harris, “Towards a Global Ruling Class? Globalization and the Transnational Capitalist Class”, 64 Science & Society 11 (2000). See also William Robinson, “Global Capitalism and Nation-State-Centric Thinking–What We Don’t See When We Do See Nation-States: A Response to Our Critics”, 65 Science & Society 500 (2002).
[7] Nicos Poulantzas, State, Power, Socialism 128-9 (1978).
[8] Chimni, op. cit., 1-2.
[9] Ibid., 2.
[10] Ibid.
[11] Ibid., 2-3, 9-13.
[12] Ibid., 22.
[13] Ibid., 23.
[14] Ibid., 5.
[15] Ibid.
[16] Ellen Meiksins Wood, Empire of Capital 139 (2003).
Akbar Rasulov is Senior Lecturer of Law at the University of Glasgow.
Legal Form 