Abstract
In 2021, lawyers representing Guantanamo detainees sparred with a scholar on the role of their lawyering in legitimizing endless war-making. The scholar claimed that by challenging the US's detentions at Guantanamo as violations of international humanitarian law, the lawyers “enable[d] a novel, sanitized version of permanent war” (Margulies and Azmy, 2021). In defence of their work, the lawyers raised not only the material benefits to their clients – release from detention – but also the tactical role of their representation as part of a broader anti-war strategy. By representing those disappeared in Guantanamo, they challenged the war makers’ efforts to dehumanize entire peoples thereby naturalizing perpetual war against them (Margulies and Azmy, 2021).
This debate was not new, but the latest in the ongoing discourse concerning the emancipatory potential of international law. If international law “is an integral part of our exploitative and oppressive reality,” as TWAIL and Marxist scholars contend, can it be deployed in pursuit of emancipation “without reinforcing the very legalism which needs to be undermined” (Knox, 2010: 228)? While one response is legal nihilism (Rasulov, 2008: 277), even those most critical of international law “do not necessarily advocate for [its] abandonment” (Kiyani et al., 2016: 917). For one, engagement with international law is inescapable, given that every act is “enmeshed in juridical relations and will have inevitable juridical consequences” (Knox, 2010: 223–24). For another, subordinated peoples may not have the luxury of legal nihilism, particularly given the current strength of the Global Right's political capital (Crenshaw, 1988:1386; Rasulov, 2008:277).
The first task for international lawyers seeking social change then must be to reflect on whether their engagement is grounded in reformist or revolutionary theory. Reformist strategies – as the scholar views the Guantanamo representation – reflect “‘a quiet confidence in the idea of law as a weapon of the weak that would work better if only it could be implemented more effectively’” (Reynolds and Xavier, 2016: 976–77). In contrast, revolutionary strategies – in which the Guantanamo lawyers situated their effort – view such engagement as a “purely tactical intervention, an instrumental move that feeds into a broader anti-imperial strategy” (Reynolds and Xavier, 2016: 976–77). In a revolutionary strategy, any use of the existing legal framework is in an effort to “create conditions where it's harder for the existing social order to reproduce itself” and to “expand[ ] the bargaining and political power of oppressed groups…” (Rana, 2022).
Both reformist and revolutionary international lawyers would profit from Ntina Tzouvala's prodigious offering in Capitalism as Civilisation. Tzouvala's central claim is that international legal argumentation is constrained by a standard commonly held to be outdated in the postcolonial era: “the standard of civilisation.” By producing this mode of argumentation from legal texts, this monograph shows both how and why the indeterminacy of international law has a structural bias that renders it incapable of being exploited to achieve emancipatory ends without careful manoeuvring.
Tzouvala defines the standard of civilisation not as a singular concept but as a “mode of argumentation about the distribution of rights, privileges, duties, liabilities, and so on between political communities” (p. 15). This mode of argumentation is necessitated by a global capitalist political economy. Capitalism's need for “constant spatial expansionism” requires dispossession of certain peoples for the purposes of acquiring land and wage labour and incorporating such peoples and territories “into the circuits of capitalist production and exchange” (p. 26–28). Inhering in this ongoing process are the contradictory tendencies of homogenisation and stratification (p. 35). Homogenisation transforms polities’ political, legal, and economic institutions to serve the needs of capitalist accumulation, while stratification maintains certain polities as peripheral, or in subordinated positions in the global order to ensure that capital is accumulated in the metropoles. The standard of civilisation empowers international legal argumentation to facilitate these contradictory tendencies by “oscillating between” the “logic of biology” and the “logic of improvement.” (p. 2). The former softens the ground for stratification, by “erect[ing] unsurpassable barriers against non-Western communities acquiring equal rights and obligations under international law based on some purportedly immutable difference between ‘the West and the rest’” (p. 2). The latter softens the ground for homogenisation, by offering non-Western communities “a prospect of inclusion” that is “firmly conditional upon capitalist transformation” (p. 2).
Tzouvala builds a record of this mode of argumentation beginning in the inaugural era of positivism in the 19th century (p. 46). Under positivism, the “state” became “the exclusive creator of law,” such that it “cannot be bound by any law unless it has consented to it” (Anghie, 2006: 745). Civilisation became the standard for sovereign statehood, where some peoples enjoyed this political status (“civilized”) and others did not (“un-civilised”) and “were thus reduced to objects of conquest and exploitation” (Anghie, 2006: 745). Tzouvala describes this classification scheme as serving as the source of the logic of biology (p. 52). At the same time, in this scheme, “semi-civilised” peoples could “improve” in their standing if civilised lawyers determined that they had sufficiently enacted “legal reforms that would dismantle pre-capitalist forms of statehood and would protect private commerce and capitalist accumulation” – the source for the logic of improvement (p. 59).
As the explicit invocation of civilisation began losing legitimacy in the face of anti-colonial resistance movements and the rise of communism, Tzouvala traces how the interwar period of international law, via the League of Nations, “both inherited and transformed the ‘standard of civilisation’” (p. 89). The logic of biology informed “the very basis” of League's Mandate System, and the logic of improvement tied the mandate territories’ emancipation to their “social transformation according to the imperatives of capitalist modernity” (p. 103). These logics were masked by technical methods – still employed today – such as fact-finding, statistics, and rankings to “establish and monitor the progress of non-Western political communities towards capitalist modernity” (p. 89, 106).
Tzouvala ends by showing how the standard of civilisation lives on in the present era, surfacing the its deployment in the US's 2003 occupation of Iraq and the “unable or unwilling” doctrine in its so-called War on Terror. Regarding the former, the logic of improvement facilitated the requirement that capitalist reforms be undertaken to “rehabilitate” Iraq “from a ‘rogue state’ to a ‘normal’ sovereign with equal rights and duties” (p. 171). At the same time, the logic biology allowed these reforms to envision “a formal, limited and weak model of democracy” based on what was understood as the “supposedly unfree, immature and deceitful character of Iraqis” (p. 183). Similarly, the logic of improvement facilitated the “unable or unwilling” doctrine's enlistment of non-Western states in reproducing the form and political economy of the US's capitalist security state (p. 171). States who did so were promised the reward of not being subject to the West's war. At the same time, the logic of biology facilitated the doctrine's development of criteria for the West to determine whether sovereignty would shield a non-Western state from war. (p. 171).
The standard of civilisation lives on in legal argumentation despite its stigmatization in the postcolonial era because, Tzouvala explains, “international lawyers are still tasked with producing order out of the world of combined and uneven development that capitalism constantly reproduces” (p. 16). It has survived by adapting to the evolving needs of global capitalism – from outright dispossession at its inception to welfarism during the interwar period to save capitalism from the “destructive power of capital over labour” (p. 115) to neoliberalism today, requiring a security state to facilitate ongoing dispossession for capital accumulation (p. 172). Its survival is also thanks in part to non-Western international lawyers – representing elites standing to gain from a capitalist political economy – who do not contest the standard as such, but only “their place within” it, and instead seek to “democratize” the application of the standard (p. 82, 148).
Through this study, Capitalism as Civilisation carefully elucidates a source of the structural bias in international law's indeterminacy: capitalism, under which subordination is immanent (p. 38). For reformist lawyers, this insight shows why efforts to make existing international law a “weapon of the weak” by decrying “double standards” are futile. International law employs double standards by design. To be viewed as a subject (a sovereign state) rather than an object (a colony) of international law, polities are required to “adopt[ ] the institutions of capitalist modernity,” which requires “the dispossession of Indigenous peoples and others,” recreating the logic of biology within the polity (p. 87). At the same time, Western states are quick to resort to the logic of biology vis-à-vis formerly colonized states when they fail to adopt reforms necessary for the West's accumulation of capital (p. 86).
For revolutionary lawyers, this insight can inform tactical engagements with international law that avoid simply “collapsing” into reformist, system-legitimating efforts (Knox, 2010: 194). The monograph presents a robust case study such lawyers can learn from: the Namibian independence movement's legal challenge to apartheid South African rule (p. 140). The lawyers attempted to “mobilize the language of ‘civilisation’” to directly challenge apartheid by revealing its racial capitalist structure, itself created by the imperial order that the standard of civilisation was designed to maintain (p. 153). However, unable to adroitly navigate the contradictory logics of the standard, the challenge collapsed into a reformist project of human rights (p. 140, 155). The human rights approach “obscured the material conditions of Namibia,” paving the way for the capitalist logic of improvement to become “an integral part of Namibia's acquisition of statehood…locking-in the highly unequal, racialized distribution of property and wealth in the country” (p. 161, 163).
Overall, Tzouvala's analysis is enormously helpful in staving off unproductive nihilism and idealism alike among international lawyers supporting liberatory movements. That said, the monograph raises three areas of minor concern.
To begin, Tzouvala explains that the logic of biology arises from the central role of exploitation in capitalism, which leads to stratification between capitalists, on the one hand, and laborers and the dispossessed on the other (p. 19–30). However, since capitalists and laborers/the dispossessed exist within and across political communities, what is missing is an explanation of why the logic of biology operates among different political communities, whose interactions are the primary concern of international law.
One explanation is as follows: Capitalism requires an integrated global market oriented toward capitalist accumulation to continually increase the wealth held by capitalists (Patnaik and Patnaik, 2021). The forced incorporation of polities and their territories into a global capitalist market is naturalised by the logic of improvement. But capitalism also requires that the value of capitalists’ wealth be preserved. Wealth preservation requires stratification in the form of a metropole-periphery relationship, wherein capitalist wealth is held in the metropoles and existence of peripheries combats the (1) threat of an increasing supply price by facilitating the expropriation of land and structured impoverishment of peripheral economies (Patnaik and Patnaik, 2021), and (2) falling rate of profit in the metropole by facilitating the super-exploitation of labour in peripheral economies to lower the cost of the goods needed for the reproduction of labour in the metropole (Smith, 2016: 217). This metropole-periphery relationship is naturalised by the logic of biology.
Next, Tzouvala contends that the logic of biology does not equate with racialism (p. 33). This logic is defined as rejecting “equal inclusion for non-Western, predominantly non-white political communities in the realm of international law,” resting on “a deep-seated perception of cultural or racial inferiority” (p. 2). But this definition presumes that there is some “fixed and essentialist construction of race [to be] posited as an independent causal variable…[that] ‘exists somewhere outside of or prior to law’” (Mahmud, 1997: 414). Racialism does not arise from “a sort of mass psychology of chromatic trauma in which European reactions to darker-skinned peoples are seen as natural” (Robinson, 2020: 67), but should be “understood as the legitimation of an existing social order by reference to ‘natural’ biological and/or cultural characteristics” (Issar, 2021: 58–59). As such, racialism, while not purely a product of law, is inseparable from it (Lopez, 2006), including international law (Knox, 2016: 109–110; Mahmud, 1997: 417). Indeed, race plays the consistent role that Tzouvala ascribes to early invocations of civilisation, wherein labels of ‘civilised’, ‘uncivilised’ or ‘semi-civilised’ “did not have a concrete meaning as such, but only as shorthand for what could be done to other political communities lawfully and what could not” (p. 14).
A more precise understanding of the logic of biology might locate its roots not merely in capitalism's tendency of stratification, but specifically this stratification's use of racialism (Issar, 2021: 62–63). While the roots of the relationship between racialism and capitalism are debated, it is clear that “the European colonial conquests beginning in 1492 spread both the economic linkages that would congeal into capitalism and the forms of social organization that would become races” (Táíwò and Bright, 2020). In other words, the global capitalism the monograph discusses as the reason for the perseverance of the standard of civilisation is immanently racial capitalism. And international law plays a critical role in its operation, as it “mediates and articulates the expansion of capital through racializing certain territories and societies,” opening “them up for the penetration of capital, and facilitate[ing] their control and management” (Knox, 2016: 112).
It seems that Tzouvala conceptualizes the logic of biology as separate from racialism because of the former's malleability. For example, when discussing the “unable or unwilling” doctrine, Tzouvala discusses how some states are coded as the “reasonable victim state” that may employ this doctrine, while others are coded as “ungoverned, unruly and lawless,” and thus solely subject to “the violence authorized by” the doctrine (p. 198, 201–202). Tzouvala may view this coding as distinct from racialisation because “states which have not historically been coded as white can potentially occupy the position of reasonable ‘victim states” (p. 202). Racialisation, however, is not static. Materially, “[a]s the particular character of capital accumulation changes” – as reflected in changes to the logic improvement – “so too does the form of racialisation, which is constituted through international legal categories” (Knox, 2016: 112). Thus, “[t]o insist on a single analytical category, ‘race,’ would be to reenact the anti-scientific, ahistorical ideology of racialization” (Thomas, 2022:113).
Finally, recognizing racial capitalism as the structure that necessitates the standard of civilisation renders significant the distinction between Tzouvala's use of race and gender as analogous metaphors “to explain, justify and reproduce the unequal distribution of rights and duties under international law” (p. 33).
The very creation of sovereignty was mutually constructed with race (Mahmud, 1999:1220). Peoples who were denied sovereignty, and later recognized as having only a subordinated form of sovereignty, were racialized. Gender, while also a social construct mediated through capitalism and law, is not a structure through which entire political communities suffered a denial of or subordinated sovereignty. Rather, European colonialism constructed capitalist notions of gender among colonized people, as opposed to constructing gender as the “marker of difference” between colonizers and colonized peoples (Mahmud, 1999:1220). In this process, gender was not constructed uniformly across the “seam of imperial encounter” (Khalili, 2011:11). One of the functions of gender was to render those bodies that can become pregnant “the key site for the reproduction of colonialism's unequally related populations” (Wolfe, 2016:29). Consequentially, “colonizers used a diametrically opposed value system vis-à-vis the women of the subjugated peoples as that vis-à-vis their ‘own’ women” (Mies, 1998:90). Women from political communities racialized as white have been historically characterized as “fragile” and “passive” (Lugones, 2007:203) to “domesticate [them] into pure monogamous breeders of their heirs” (Mies, 1998:90). By contrast, women from communities racialized as non-white have been characterized “along a gamut of sexual aggression and perversion, and as strong enough to do any sort of labour” (Lugones, 2007:203). It follows that the use of gendered tropes drawn from the values imposed on white women – which are the tropes that Tzouvala and many feminist approaches to international law tend to identify – to describe non-white political communities is better understood as a tool of racialism.
In short, race and gender are not analogous metaphors in this context because race is materially implicated in Tzouvala's analysis, whereas the use of gender as a metaphor is actually a tool of this racialism.
Capitalism as Civilisation makes a critical contribution to understanding how the structural bias of international law's indeterminacy prevents reformist international law projects from achieving emancipatory objectives and informing revolutionary projects in their tactical uses of international law. A deeper engagement with the operation of capitalism as a racial project among political communities would better instruct international lawyers in why and how so many efforts to employ international law for liberation remain unfulfilled.
