Global law and human rights: Marxist reflections

How can a political account of human rights avoid Eurocentrism?

My recent book ''The Degradation of the International Legal Order?'' attempts a political account of human rights, and engages with the work of China Miéville and Susan Marks, as well as the extraordinary opus of Alain Badiou. The book has been well received. Sympathetic reviews by Robert Knox and Upendra Baxi have levelled a number of constructive criticisms, and this paper seeks both to grapple with the issues raised and to take the project forward. What is at stake is the concretisation of a thoroughly materialist, properly communist historicisation of human rights, as a contribution to contemporary struggles. In particular, is this project in any sense necessarily Eurocentric?

For Hale and Althusser: An Outline of a Marxist Theory of Global Law

Abstract: More than a quarter of a century ago, Mark Tushnet, a leading US critical legal theorist, observed in his commentary on Hugh Collins’s ‘Marxism and Law’ that every attempt to produce a consistently Marxist legal theory ultimately runs aground the moment it is forced to come face to face with three basic inter-related analytical challenges: the challenge of ‘mechanism’, the challenge of ‘law’s constitutive function’, and the challenge of ‘reification’ . The first challenge, as Tushnet explains, arises, essentially, out of the presumptive need to demonstrate that every existing legal institution can be shown to be ‘at least potentially’ class-biased. The second challenge is a direct outgrowth of the first and revolves, basically, around the general problem of theorizing the question of the ‘superstructural feedback’: what role exactly does the law play in its relationship with the economic ‘basis’? Finally, the third challenge, observes Tushnet, proceeds, in effect, from the old legal-theoretical insight developed by the liberal-bourgeois jurisprudence at the beginning of the last century which says, essentially, that ‘legal rules’ are not ‘things’, that for every identifiable legal rule there can always be found an equally valid counter-rule that produces a directly opposite effect, and that, therefore, it simply does not make sense, if we are to consider such matters from a professional point of view, to argue that substantive legal regimes can be intrinsically (as opposed to ‘on the level of their practical manipulation’) biased.

The first main thesis of this paper is going to be twofold. In the first place, I will argue that within the context of the contemporary legal-theoretical debate Tushnet’ s concerns remain as valid today as they were when he first voiced them. In the second place, I am going to argue that insofar as he presented the three challenges above as analytically unresolvable - that is, as logically unresolvable in a way that would allow one to combine a Marxist theory of the social structure with a jurisprudentially adequate legal-theoretical approach - Tushhnet was and remains fundamentally wrong. The answer to Tushnet’s three challenges, I am going to argue, lies in combining several general insights borrowed from the ‘high’ Althusserian tradition (Althusser, Poulantzas, and early Balibar) with the particular distributionist theory of law produced in the late 1920s by the American economist and jurist Robert Lee Hale.

After outlining the exact details of this combination, it will be suggested that the ‘union of Hale and Althusser’ can help us to develop an analytical framework that will allow the production of a consistently Marxist theoretical account for *every* existing type of legal regime, domestic and international alike, and do so, moreover, not only on the macro-level of general abstractions but also on the micro-level of concrete practical insights involving individual legal rules, procedures, institutions, and policy proposals - in a language that will remain understandable to non-Marxist lawyers as well as their Marxist colleagues.