The Covid-19 pandemic has exposed many failures and limitations of the liberal international order as it strains under the weight of neoliberal globalization, stark global inequality, ecological destruction, and a rising tide of authoritarian nationalism. We have not seen a coordinated global response to the pandemic, led by the United Nations’ World Health Organisation (WHO), with resources being pooled and assistance being given by wealthier states to poorer states. Instead, multilateral coordination has been fragmented and eroded through border closures, radically differing approaches to public health, and the tendency of wealthier states in the global North to squabble over the sourcing of protective equipment while engaging in a race to produce the first vaccine. The nationalistic posturing of President Trump, who has attempted to scapegoat both the WHO and China, has further eroded the United States’ position of ideological leadership over the liberal international order.
One liberal response to the breakdown of the liberal international order has been to reassert the principles of “liberal constitutionalism”, at the level of the state as well as the level of international law and politics. Liberal proponents often make enormous claims about the importance of “global constitutionalism” for solving a host of problems, including human rights abuses, authoritarianism, climate change, the abuse of power by multinational corporations, and the democratic deficit within global governance organizations. [1] From a Marxist perspective, there is good reason to be sceptical of such attempts to underscore “global constitutionalism” in response to the breakdown of global liberal order. Such attempts too often ignore the ways in which the systematic violence of capitalist accumulation has been extended and entrenched through transnational networks of finance and administration. [2]
The contradictions of liberal constitutionalism provide an opportunity for Marxist theory. Is there any place for an idea of “global constitutionalism” within Marxist thought? Further, what role might a “constitutional register” play in a Marxist understanding of transnational political and legal relations? Such a constitutional question is situated between the critique of the capitalist state, the imperialist operation of international law, and the traditions of democratic socialism and socialist internationalism within Marxist thought. The constitutional question is taken up in greater depth in my book Global Justice and Social Conflict. [3] What follows involves a brief sketch of this book’s argument.
The closest that Marx comes to speaking of a “constitutional register” is in his eulogy for the failed Paris Commune in “The Civil War in France”, first published in 1871. [4] For Marx the Paris Commune represented a novel, historic moment of republican revolutionary government [5], one in which the working classes of Paris assumed democratic self-government and attempted to overturn and radically reorganize the old organs of the French bourgeois state. [6] The Paris Commune stood in contrast to previous republican revolutions in seventeenth-century England and eighteenth-century France, which instituted governments led by private property owners. [7] In contrast to liberal constitutionalism, Marx argued that the Commune attempted a social revolution in which the property of the “few” [8] would be abolished and in which a newly established political and legal constitution would attempt to realize the “economic emancipation of labour”. [9] As distinct from previous bourgeois republics, the Paris Commune stood briefly as a “Republic of Labour”. [10] It sought to reconstitute and transform economic and social relations and to establish a democratic, egalitarian, and “communist” constitution [11], one in which governmental power was wielded by the working classes. [12]
Marx’s approach to the constitutional question spills out in a number of different directions in the Marxist tradition. For Pashukanis the liberal constitutional state that developed through the seventeenth-century tradition of natural law, with its concepts of a neutral “public authority”, “the rule of law”, and “the collective will”, operated as a “mirage” which “conceals the bourgeoisie’s hegemony from the eyes of the masses”. [13] For Pashukanis the constitutional state is not an “autonomous force”. Instead, it represents, legitimates, and enforces capitalist social and economic relations through violence, as the “public” element of the commodity form of law within capitalist exchange relations. [14] The liberal theory of the state thus conceals both relations of production and class struggles, which are the true “reality of the state”. [15] For Pashukanis the constitutional state form was to be dissolved in its entirety through revolutionary action, so that abstract legal concepts came to be replaced with technical planning and administration. [16]
Standing in contrast to Pashukanis is a tradition of Marxist theory that draws upon Machiavelli and Hegel [17], bringing both Marx’s thought and Marxist views on the state closer to ancient and early modern conceptions of radical-democratic republicanism. Gramsci’s concepts of “coercion” and “consent”, and also his concepts of “hegemony”, “historical bloc”, and “state”/”civil society” [18], were taken up by “New Left” Marxist theorists in the 1960s in order to rethink the nature of class struggles across the terrain of social democracy in Europe and North America. [19] One consequence was the broadening of the concept of class struggle beyond the economic and political spheres, so that it came to encompass cultural and ideological conflicts situated within and across a range of state and civil society institutions. For Gramsci revolutionary change in the Western capitalist societies of the early twentieth century could not take place simply by “capturing” the political and military organs of the state. Rather, revolution had also to involve a series of struggles waged on the ideological and institutional level, aiming to challenge and overturn deep-seated cultural, moral, economic, and ideological forms of capitalist “hegemony”. [20]
In this sense–as noted by Hall–Gramsci does not see politics as reflecting already unified collective identities. Rather, politics is constitutive, a form of social “production” in which economic, social, and cultural relations “have to be worked upon to produce particular forms of power, forms of domination”. [21] Radical socialist politics also involve the production of new forms of popular identity, and the “construction of a new cultural order” as the “deepening of democratic life” and the expansion of “popular capacities”. [22] Arguing along similar lines, Poulantzas focused on struggles waged within and across state and civil society institutions, considering whether and how these institutions might be transformed. For Poulantzas any democratic-socialist strategy aimed at the revolutionary transformation of society was to be guided by a central question:
“The basic dilemma from which we must extricate ourselves is the following: either maintain the existing State and stick exclusively to a modified form of representative democracy–a road that ends up in social-democratic statism and so-called liberal parliamentarianism; or base everything on direct, rank-and-file democracy or the movement of self-management–a path which, sooner or later, inevitably leads to statist despotism or the dictatorship of experts. The essential problem of the democratic road to socialism, of democratic socialism, must be posed in a different way: how is it possible to radically transform the State in such a manner that the extension and deepening of political freedoms and the institutions of representative democracy (which were also a conquest of the popular masses) are combined with the unfurling of forms of direct democracy and the mushrooming of self-management bodies?” [23]
Sitting beside these two traditions is a form of Marxist constitutional theory developed by Negri. In one sense, Negri’s approach to the constitutional question can be thought of as somewhat “Jacobin” in its attempt to overturn the social-democratic state, and its critique of mediation and reformism. His account is also “post-workerist” in the sense that the revolutionary subject, akin to Rousseau’s “general will”, is located within a broad understanding of the demos or popolo as the “multitude”. [24] In this respect, Negri and Michael Hardt reinterpret the Marxist revolutionary tradition in terms of the ancient and early modern traditions of radical republicanism and democratic participation, building an ontological account of revolutionary subjectivity and of the “commons” on the basis of Spinoza. [25]
For Negri the constitutional question is framed in terms of the tension between “constituent power” and “constituted power”. Constituted power represents the settled institutional framework of legal power that entrenches capitalist social and economic relations. According to Negri, both liberal and social-democratic “constitutionalism” invoke the theory of the “mixed constitution”, and both suppress popular democracy through the procedure and performance of managing inequality. For Negri constituent power is the dynamic force of popular democracy operating as a “motor or cardinal expression of democratic revolution”. [26] In this respect, Negri approaches the constitutional question (reflecting Machiavelli’s democratic agonism) in terms of the possibility of constructing a constitutional model capable of keeping the active, dynamic force of constituent power “in motion”. [27]
This brief account of Marxist approaches to the constitutional question is certainly not exhaustive, but it does help us to think about some of the ways in which Marxist legal theory might approach the idea of “global constitutionalism”. From the perspective of Pashukanis’ critique of the state and international law [28], the idea of “global constitutionalism” simply reflects the extension of the commodity form of law through the structures and networks of neoliberal globalization. There is therefore no reason to believe that the constitutional register offers hope of social emancipation; as Miéville has put it, only class struggle is to “eradicate the forms of law”. [29] In contrast, for Hardt and Negri, the idea of global constitutionalism may be used to develop a critique of the capitalist relations that sustain contemporary global governance structures, which operate as entrenched forms of constituted power. Hardt and Negri reinterpret socialist internationalism as the constituent power of the “multitude”, struggling to integrate and coordinate a range of anti-capitalist, ecological, Indigenous, and feminist social movements in order to create a new world. [30]
From a Gramscian perspective, Gill and Cutler have drawn upon and also extended such constitutional approaches, examining struggles across a range of global institutions and networks. For Gill and Cutler, the “new constitutionalism” of “disciplinary neoliberalism” describes a set of uneven and overlapping transnational power relations which together operate as de facto governance structures, actively reconstituting state forms, expanding the reach of the commodity form, and furthering the production of neoliberal subjectivity. On their account, constitutionalism involves the transnational legitimisation of governance structures that “lock in” forms of neoliberal accumulation, disciplining public institutions and insulating the economy from democratic interference. [31] In addition, Gill and Cutler consider the extent to which these contemporary constitutional frameworks “constitute the juridical and political conditions for contestation” and open spaces for new forms of “resistance” and “insurgent power”. [32]
For Gill multiple sites of resistance to the power of global capital are available today, producing plural, radical forms of “common sense”–-that is, forms of knowledge and conceptions of social and ecological reproduction that challenge hegemonic capitalist models. For Gill the key question for the left today is how these forms of resistance might coalesce into more effective transnational political organisations. [33] This involves the attempt to “foster a new and more radical common sense, to combine progressive forces in a new form of democracy based on principles of solidarity, justice and progressive constitutionalism”. [34]
In response to the questions I raised above, there is indeed a role for the concept of “global constitutionalism” in Marxist theory. While there are different perspectives on what this might mean, I would argue that a Gramscian approach offers the most promising account of such constitutional structures and is less likely to fall prey to the kind of romanticism that pops up at times in the work of Hardt and Negri. Broadly, I believe that the idea of global constitutionalism offers a framework of analysis for understanding global political and juridical relations that retains aspects of the commodity form theory of law without falling back into any form of “economism”. [35] Within this framework, both politics and law are understood as fields of struggle over the form and direction of social reproduction.
Thinking through the question of global constitutionalism involves an analytical framework for the critique of global capitalist relations, not to mention considerable political imagination. Within this analytical framework, transnational political and legal relations are understood as overlapping sites of struggle in which capitalist relations are produced and held in place through a mixture of consent and coercion. As sites of struggle, these are also multiple points of class and social contestation, even if, on the whole, anti-capitalist struggles have been politically coordinated only weakly on the transnational plane, and even then have been heavily constrained and mediated by the modern state. As a goal of democratic-socialist politics, the idea of an egalitarian and democratic global-constitutional order can be conceived as a “republic of labour”, intertwined with the relations of gender, race, sexuality, and ecology that reside at the heart of social reproduction. Similarly, any idea of radical global constitutionalism must be attuned to the manifold forms of violence perpetuated through modernity. [36]
In light of the breakdown of the liberal international order and the resurgence of authoritarian nationalism worldwide, the idea of global constitutionalism offers an increasingly useful means of imagining democratic socialism today. Following Hall, there is strategic importance in fostering such political imagination. Among other things, it involves the effort to construct a common sense oriented toward democratic socialism rather than reactionary nationalism. [37]
Tarik Kochi is Senior Lecturer in Law and International Security at the University of Sussex, where he teaches legal and political theory. He is the author of The Other’s War: Recognition and the Violence of Ethics (2009) and Global Justice and Social Conflict: The Foundations of Liberal Order and International Law (2019).
[1] See, for example, Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2005); Gunther Teubner, Constitutional Fragments (Oxford: Oxford University Press, 2014); Seyla Benhabib, Another Cosmopolitanism, ed. Robert Post (Oxford: Oxford University Press, 2006); Mattias Kumm et al., “The End of the ‘West’ and the Future of Global Constitutionalism” 6 (2017) Global Constitutionalism 1.
[2] Tarik Kochi, “The End of Global Constitutionalism and Rise of Antidemocratic Politics” (2000) Global Society [advance online version].
[3] Tarik Kochi, Global Justice and Social Conflict: The Foundations of Liberal Order and International Law (Abingdon: Routledge, 2019).
[4] Karl Marx, “The Civil War in France” [1871], in Karl Marx, Selected Writings, ed. David McLellan, 2nd edn (Oxford: Oxford University Press, 2000).
[5] Marx, “Civil War”, 588.
[6] Marx, “Civil War”, 586–7.
[7] Marx, “Civil War”, 588. See also Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852], in Selected Writings, 329–31. Marx argued that a social or communist revolution could not merely mimic and repeat the revolutionary heroics of the ancient world, as say had taken place with the Jacobin imitation of Roman republican virtue.
[8] Marx, “Civil War”, 590.
[9] Marx, “Civil War”, 589.
[10] Marx, “Civil War”, 590.
[11] Marx, “Civil War”, 588.
[12] Marx, “Civil War”, 592.
[13] Evgeny B. Pashukanis, Law and Marxism: A General Theory, ed. Chris Arthur, trans. Barbara Einhorn (London: Pluto Press, 1987), 146–47.
[14] Pashukanis, Law and Marxism, 144, 147-8.
[15] Pashukanis, Law and Marxism, 147. See also Valerie Kerruish, Jurisprudence as Ideology (London: Routledge, 1991).
[16] Pashukanis, Law and Marxism, 132–35.
[17] See generally Darrow Schecter, “Gramsci’s Unorthodox Marxism: Political Ambiguity and Sociological Relevance” 15 (2010) Modern Italy 145; Mark Neocleous, Administering Civil Society: Towards a Theory of State Power (London: Macmillan, 1996).
[18] Antonio Gramsci, Selections from the Prison Notebooks, ed. and trans. Quintin Hoare and Geoffrey Nowell Smith (London: Lawrence and Wishart, 1971). See also Perry Anderson, “The Antinomies of Antonio Gramsci” 100 (1976) New Left Review 5.
[19] Such as Perry Anderson, Stuart Hall, and Raymond Williams, engaging with the work of Louis Althusser.
[20] Gramsci, Prison Notebooks, 238–39, also 133, 165.
[21] Stuart Hall, The Hard Road to Renewal: Thatcherism and the Crisis of the Left (London: Verso, 1988), 168–69.
[22] Hall, Hard Road, 170–71.
[23] Nicos Poulantzas, State, Power, Socialism, trans. Patrick Camiller (London: Verso, 1980 [1978]) 256 (original emphases).
[24] David Broder, “The Autumn and Fall of Italian Workerism” 3 (2000) Catalyst.
[25] Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. Maurizia Boscagli (Minneapolis: University of Minnesota Press, 1999 [1992]); Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University Press, 2001); Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (Penguin: New York, 2004).
[26] Negri, Insurgencies, 11.
[27] Negri, Insurgencies, 25.
[28] Evgeny B. Pashukanis, “International Law”, in Pashukanis: Selected Writings on Marxism and Law, Piers Beirne and Robert Sharlet eds. (London: Academic Press, 1980).
[29] China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005) 318.
[30] Hardt and Negri, Empire.
[31] Stephen Gill and A. Claire Cutler (eds), New Constitutionalism and World Order (Cambridge: Cambridge University Press, 2014), 7; Stephen Gill, Power and Resistance in the New World Order (Basingstoke: Palgrave Macmillan, 2003), 116–42. For differing Gramscian perspectives see also William I. Robinson, Global Capitalism and the Crisis of Humanity (Cambridge: Cambridge University Press, 2014); Andreas Bieler and Adam Morton, Global War, Global Capitalism, Global Crisis (Cambridge: Cambridge University Press, 2018).
[32] Gill and Cutler, New Constitutionalism, 4.
[33] Stephen Gill, “Market Civilisation, New Constitutionalism and World Order”, in Gill and Cutler, New Constitutionalism, 43–44.
[34] Gill, “Market Civilisation”, 44.
[35] On the critique of “economism” see, Poulantzas, State, Power, Socialism, 15–18, 50, 173. For critiques of Pashukanis more generally, see Bill Bowring, The Degradation of the International Order: The Rehabilitation of Law and the Possibility of Politics (Abingdon: Routledge, 2008), 20–30; Robert Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London: Pluto Press, 1984).
[36] On this question see also: James Tully et al., “Introducing Global Integral Constitutionalism” 5 (2016) Global Constitutionalism 1; Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (London: Butterworths, 2002).
[37] Hall, The Hard Road to Renewal, 195.
Legal Form 