DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION

Strategy and Tactics

Robert Knox1 By rushing into sordid reformist compromises or pseudorevolutionary collective actions, those driven by an abstract desire for immediate effectiveness are in reality obeying the ruling laws of thought, adopting a perspective that can see nothing but the latest news. In this way delirium reappears in the camp that claims to be opposing it. A critique seeking to go beyond the spectacle must know how to wait. Guy Debord2 1. Introduction In a 1990 interview in The Postcolonial Critic, Gayatri Spivak described how she related her theoretical positions to her more political interventions. She argued that although theoretically and intellectually she was opposed to universalism or essentialism, it was necessary to make a strategic choice3 when intervening politically. This strategic choice involved recognising that since the language of universalism or essentialism was the language in which political debates were conducted, one had to adopt this language in order to make an intervention. Thus, she spoke of universality because universality was in the air from the other side in the talk of female discourse ... and since I believe that one shouldnt throw away things but use them, strategically ... perhaps here was an item which could be used as a universal signifier.4 This position that anti-essentialists should not simply discard essentialism, but must instead deploy essentialist arguments in concrete political contexts has come to be known as strategic essentialism.5 Yet although such a position has an evident attraction, one can immediately imagine several problems with it. The first problem is when one should use essentialism and when one should not. Spivaks argument simply seems to be that there are some times that essentialism should be used and other times when it should not, what is lacking is any broader criterion as to its use or non-use. The second problem is that of legitimation. Is it really the case that we should always engage in debates purely on the terms that we find them? In so doing, do we not risk winning the particular argument, whilst at the same time legitimating those broader structures that we wish to undermine? The combination of these two arguments points to the third objection we can raise. If one uses essentialism whenever it is effective to do so, having no concern as to whether ones behaviour is legitimating that very language, in what sense is ones behaviour different from anyone elses? In other words, does strategic essentialism, in this sense, not simply collapse into essentialism?
1

PhD Candidate, London School of Economics and Political Science. This paper was presented at the Fourth Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law and the Towards a Radical International Law workshop, so my thanks go to the organisers, my co-panellists and the audience at these events. My deepest thanks to Irina Ceric, Giorgos Galanis, Susan Marks, China Miville, John Haskell, Eva Hartmann, Florian Hoffmann, Paavo Kotiaho, Akbar Rasulov, Owen Taylor and Alberto Toscano for enduring my endless and incoherent rants about this topic, as well as their pertinent and useful responses to said rants. Thanks also (and again) to Paavo Kotiaho, Chris Taylor, Owen Taylor and Akbar Rasulov for their helpful comments on drafts of this article. In the typical academic inversion of corporate responsibility, all errors of style and substance remain my own. References to online sources are accurate as of 17 August 2011. 2 Guy Debord, Society of the Spectacle (Rebel Press: London) at 119. 3 Gayatri Spivak, The Postcolonial Critic: Interviews, Strategies, Dialogues (Routledge: New York and London, 1990) at 10. 4 Ibid, at 11. 5 See Bart Moore-Gilbert, Postcolonial Theory: Contexts, Practices, Politics (Verso: London, 1997) at 198.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION These problems stem from the fact that, notwithstanding its characterisation, Spivaks position is not one of strategic essentialism at all. Although her position clearly is one that pays attention to the pragmatic dimensions of political interventions, these dimensions are confined purely to the short term. Whilst she gives an account of how immediate arguments might be won, she gives no consideration of how to reconfigure the terms of these arguments, thus undermining essentialism itself. At best, her position is one of tactical essentialism, paying little or no attention to the deeper or longer term aspects of the critique of essentialism. This is not simply a matter of semantics. In conflating strategy and tactics a distinction that will be explored more fully below Spivak completely subsumes the former into the latter, with the essential outcome that all matters of effectiveness are reduced to purely short term considerations. What relevance does this have for international law? Whilst international law has always been a central feature of international politics, it is only in recent years that it has become a regular feature in the news media, and a more important part of everyday political life. This has been particularly evident in the centrality that international law has come to assume in the construction and contestation of foreign policy.6 There have been various moments that were especially important in this process: beginning perhaps with Kosovo and culminating in the War on Terror and the 2003 Iraq war. Most recently, debates around the killing of Bin Laden and the NATO intervention in Libya have been conducted in fiercely juridical terms.7 For those scholars and practitioners of international law who identify themselves as part of the left this has raised considerable problems. The main question has been how to intervene in these debates in a distinctively left or critical fashion. This is linked to the more general question of how or even whether the left can utilise international law in such a way as to advance the interests of the oppressed and exploited.8 It is here that the above considerations on Spivak become relevant. As will be argued below, Spivaks strategic essentialism is a sophisticated articulation of the basic logic that underpins a great deal of
6

Perhaps the author at the vanguard of the legalist opposition to the Iraq War and the detention, rendition and torture associated with it has been Philippe Sands. See, for example: Philippe Sands, Lawless World: Making and Breaking Global Rules (Penguin Books: London, 2006). 7 In relation to Bin Laden, Ken Livingstone former Mayor of London asked are we gangsters or a Western democracy based on the rule of law?, Pippa Crerar Ken Livingstone: Killing makes Barack Obama look like a mobster in The Evening Standard, 4 May 2011 available at <http://www.thisislondon.co.uk/standard/article23946580-ken-livingstone-killing-makes-barack-obama-look-like-a-mobster.do>, Boris Johnson present, Conservative, Mayor of London argued similarly: Lets be clear: Osama bin Laden was executed and for good reason in The Telegraph, 8 May 2011, available at <http://www.telegraph.co.uk/comment/columnists/borisjohnson/8501595/Lets-be-clear-Osama-bin-Laden-wasexecuted-and-for-good-reason.html>. Against this see Bin Laden death 'not an assassination' - Eric Holder available at <http://www.bbc.co.uk/news/world-us-canada-13370919>. In the Libyan context, most arguments mounted against the intervention have been on the grounds that mission creep will mean that the intervening forces go beyond the bounds of the UN Security Council Resolution (and hence the action will breach international law), see for example Ian Traynor Libya: 'mission creep' claims as UK sends in military advisers in The Guardian, 19 April 2011, available at <http://www.guardian.co.uk/world/2011/apr/19/libya-missioncreep-uk-advisers>. 8 See in particular: Robert Knox, Marxism, International Law and Political Strategy, 22 Leiden Journal of International Law (2009) 413-426; Robert Knox, Review Essay: The Degradation of the International Legal Order, 18 Historical Materialism (2010) 193-207; Bill Bowring, Marx, Lenin and Pashukanis on SelfDetermination: Response to Robert Knox, 19 Historical Materialism (2011) 113-127; Umut zsu, The Question of Form: Methodological Notes on Dialectics and International Law, 23 Leiden Journal of International Law (2010) 687-707; Akbar Rasulov, The Nameless Rapture of the Struggle: Towards a Marxist Class-Theoretical Approach to International Law, 19 Finnish Yearbook of International Law (2008) 243-294 and Susan Marks, International Judicial Activism and the Commodity-Form Theory of International Law, 18 European Journal of International Law (2007) 199-211.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION critical thinking on how to intervene in these debates. These accounts rely on the idea that a strategic intervention has to be made into the existing debates, whilst focusing almost exclusively on short term, tactical considerations. Thus, strategy has become systematically confused with tactics, resulting in its exclusion from theoretical discourse. Those same problems identified in Spivaks approach continually resurface in critical legal scholarship. This article seeks to challenge the above position and construct an alternative account of how critical international lawyers might intervene politically. To this end, Section 2 of this article briefly reconstructs the distinction between strategy and tactics. In Section 2.1 this is achieved through examining the original context in which this distinction was articulated, that of military theory. Section 2.2 turns to a slightly different sphere that of political theory and attempts to see how the originally military distinction has been understood in political terms. Section 3 examines how the distinction can illuminate the attempts of critical legal scholars to intervene in political debates. In section 3.1 an attempt is made to imagine what a strategic objective for critical legal theory might look like, through examining the theoretical commonalities of some of its participants. This is followed by section 3.2 which uses the letter written by several academics against the Iraq war as a lens to examine how critical scholars have understood the relationship between strategy and tactics. Here it will be argued that these writings have fallen into the trap outlined above confusing strategy with tactics and ultimately end up collapsing into liberalism. Section 3.3 argues that one of the central elements of this position is that it erects a rigid dichotomy between liberal legalism and legal nihilism, in which liberal legalism cannot help but seem attractive. Section 4 examines a number of writers in the Marxist tradition, arguing that their understanding of strategy allowed them to bridge the divide between liberal legalism and legal nihilism. Finally, in section 5, the article puts forward a specifically legal conception of the relationship between strategy and tactics, developing a position of principled opportunism. . 2. The Anatomy of a Distinction 2.1. Politics as War Although today strategy is perhaps seen as synonymous with the world of business, it has its origins in what we might call military science, and continues to be a central term in the contemporary military world. Indeed many of those who used the terms strategy or tactics in describing politics were influenced directly by these military theorists.9 Accordingly, before turning to the political usage of the term, it is wise to begin with how these military theorists have dealt with these notions. Carl von Clausewitz, one of the most influential exponents of modern military theory, defined strategy as: [T]he use of the engagement to attain the object of the war ... It must therefore give an aim to the whole military action. This aim must be in accord with the object of the war. In other words, strategy develops the plan of the war, and to the aforesaid aim links the series of acts which are to lead to it; that is, it plans the separate campaigns and arranges the engagements to be fought in each of them.10

See Jacob W. Kipp, Lenin and Clausewitz: The Militarization of Marxism, 1914-1921, 49 Military Affairs (1985) 184-191 and Sigmund Neumann and Mark von Hagen, Engels and Marx on Revolution, War, and the Army in Society, in Peter Paret (ed.) Makers of Modern Strategy from Machiavelli to the Nuclear Age (Princeton University Press, 1986) 262-280. Equally, many political actors were involved in armed struggles and so wrote directly on issues of strategy and tactics: see Che Guevara Guerrilla Warfare (University of Nebraska Press, 1998) and Mao Tse-tung, Problems of Strategy in Chinas Revolutionary War, in Selected Works of Mao Tse-tung: Volume I (Foreign Languages Press: Peking, 1967) 179-254. 10 Karl von Clausewitz, War Politics and Power (Gateway Press: Chicago, 1965) at 171.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION Strategy is in essence how it is that one would fight and win a war: connecting the various individual battles together so as to achieve this broader objective. In contradistinction to this is tactics, which is concerned with smaller and shorter term matters. Tactics are concerned with how to win the individual battles and engagements of which the war is composed.11 If we wish to translate this metaphor into more general terms, we might say that strategy concerns the manner in which we achieve and eventually fulfil our long term aims or objectives, whereas tactics concerns the methods through which we achieve our shorter term aims or objectives. The obvious conclusion here, and one that will be important to bear in mind throughout this article, is that when we talk of pragmatism or effectiveness it need not be referring to only the immediate situation. As will be explored more fully below, any tactical intervention will also have strategic consequences. This means that when thinking about effectiveness, it is necessary to understand the inherent relation between strategy and tactics.12 In so doing, the distinction allows us to consider how effective particular (seemingly short term) interventions might be in the longer term. The very obvious difficulty here is that in practical terms it may be quite difficult to distinguish between the long term and the short term. This is particularly true in the case of political interventions. More than this, however, temporality does not quite capture the distinction between a battle and a war. Although it is clear that there are temporal differences between the two, there could be innumerable examples of long battles or short wars. Instead, the difference between a battle and a war (and therefore between tactics and strategy) seems to turn on a structural distinction, lying in the particular aims and objectives of the different types of engagement. Whilst the task of a battle is generally simply to defeat a given enemy militarily, the task of a war will be more complex, involving the disposition of forces, decisions about whether some battles should even be fought (or whether some ought to simply be lost) and complex political and diplomatic aspects.13 Of course this difference in kind generally does correspond to a distinction between the long and the short term, but this does not represent the essence of the problem. As such, whilst temporality remains an important part of the distinction, it cannot be the sole factor underlying it. 2.2. Organic and Conjunctural Accordingly, it is not the case that the particular way in which the distinction operates in military terms can be directly mapped onto the political and legal sphere. This is especially true given that war is to quote Clausewitz again the continuation of policy by other means14. Despite this, there is a common thread running between military and political theory on this subject, with political thinkers sharing a similar understanding of strategy as
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Clausewitzs definition here is not taken as necessarily definitive but as both the classic definition, and representative of how many have characterised strategy, thus Montgomery defined strategy as the art of the conduct of war, tactics the art of fighting (Field-Marshal Montgomery of Alamein, A History of Warfare (Collis: London, 1968), see also B.H. Liddell Hart, Strategy at 321 (Faber: London, 1967), Mao Tse-tung supra note 9 at 183, and Guevara supra note 9 at 14. The Oxford English Dictionary defines strategy as the art of a commander-in-chief; the art of projecting and directing the larger military movements and operations of a campaign in distinction to tactics which is the art of handling forces in battle or in the immediate presence of the enemy. 12 See Guevara supra note 9 at 18-19 and Mao Tse-tung supra note 9 at 183-184, for the necessary relation between strategy and tactics. 13 Peter Paret, Introduction in Paret supra note 9 at 3. 14 Clausewtiz supra note 10 at 83. One might note here Foucaults inversion of this proposition, where he argues that politics is the continuation of war by other means, see Michel Foucault Society Must be Defended Lectures at the Collge de France, 1975-76 (Picador: 2003, New York). In this work he more generally develops a theory as to the central role of war in structuring politics, and of the utility of concepts drawn from military theory in accounting for social phenomena.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION operating in the long term. In order to understand how this has been translated, it is useful to turn to Antonio Gramscis distinction between organic and conjunctural moments and the type of criticism that both entail: [I]n studying a structure, it is necessary to distinguish between organic movements (relatively permanent) from movements which may be termed conjunctural (and which appear as occasional, immediate, almost accidental). Conjunctural phenomena too depend on organic movements to be sure, but they do not have any very farreaching historical significance; they give rise to a political criticism of a minor, dayto-day character, which has as its subject top political leaders and personalities with direct governmental responsibilities. Organic phenomena on the other hand give rise to socio-historical criticism, whose subject is wider social groupings beyond the public figures and beyond the top leaders.15 Gramsci articulated this distinction in part in order to understand the logic of strategic and tactical interventions in the political sphere.16 In this account, strategy is related to organic phenomena, that is to say those relationships which are relatively permanent, and serve as the basic or fundamental structure of the field in which the intervention is made. In terms of Marxist political economy, the prime example of such a phenomenon would be the mode of production (for instance feudalism or capitalism) and the relations of production of which it is composed. Strategic questions are those that are addressed at critiquing and overturning these relationships. Accordingly, we might say that strategic interventions are revolutionary17, inasmuch as they address critiquing or abolishing the basic logic of the system. Moreover, since they address relationships that operate at a broader and less immediate level than other struggles, strategic decisions are likely to be informed in a greater sense by theory (hence Gramscis reference to socio-historic criticism) as it becomes more important to understand and unpack the logic of the system. However, these considerations remain prudential or pragmatic inasmuch as they aim at finding the most effective methods to achieve a goal. The difference is simply that this goal is related to structural or systemic issues. By contrast tactics are concerned with conjunctural moments, that is to say those which are not structural in a direct sense. Tactics address those transitory conflicts and battles that occur in the political sphere, which could be a whole range of different issues: from an individual election, to a particular protest and so on. Consequently, there is a sense in which, in contrast to strategy, tactics would be more concerned with reform than with revolution,18 since tactics deals with those occurrences which do not directly call the system into question.
15 16

Antonio Gramsci, Selections from the Prison Notebooks (Lawrence and Wishart: London, 2003) at 177-178. This should be accompanied by the explanation of what is meant in politics by strategy and tactics, by strategic plan, by propaganda and agitation, by command structure or science of political organisation and administration, ibid at 176. 17 In The Lessons of October Leon Trotsky explicitly formulated the analogy in this way, arguing that: By tactics in politics we understand, using the analogy of military science, the art of conducting isolated operations. By strategy, we understand the art of conquest, i.e., the seizure of power. Available at <http://www.marxists.org/archive/trotsky/1924/lessons/index.htm>. However, one need not think of revolution purely in its political sense here, one could equally think of revolution in the terms that Kuhn formulated it, as a paradigm shift in a way of understanding the world, see Thomas Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, 1996); for an attempt to apply this explicitly to radical politics and social science see David Harvey, Revolutionary and Counter Revolutionary Theory in Geography and the Problem of Ghetto Formation, 4 Antipode (1972) 1-13. 18 To some degree this will be problematised below, in the exploration of how Marxists have navigated debates around reform and revolution, but it serves as a useful starting point. For an exploration of the function of

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION Of course, tactics and strategy do not exist in rigid isolation from each other. This is because as above any given act which has to be reckoned with tactically will at the same time make up the broader pattern of engagements to which strategy directs our attention. Equally, there are situations in which the very day-to-day issues may take on an immediately structural character, meaning tactical decisions will be immediately strategic. However, these revolutionary situations are in fact extremely rare, occurring only in extraordinary historical conjunctures. For the majority of time the distinction between strategy and tactics is a necessary one because the critique of the basic structural logic of the system is not identical with every day struggles within it, and the critique of this structure is not one that has an immediate appeal to the majority of people. Thus, to go back to an earlier point, the distinction between strategy and tactics could be said to be a consequence of advancing a revolutionary critique in non-revolutionary times. This is where the issue of temporality returns, for whilst the distinction between strategy and tactics is a structural one, in non-revolutionary times it will almost always assume a temporal form. If the overturning of the social structure is not immediately on the cards, it must become a long term goal, whereas conjunctural issues necessarily operate in the shorter term. Since the strategy and tactics distinction only makes sense in non-revolutionary times, it follows that it will almost always appear in a temporal form. To put it simply, we might say strategy concerns finding methods to achieve long term, systemic aims, whereas tactics concerns finding methods to achieve short term, conjunctural aims. 3. Strategic essentialism redux 3.1. Laws War and Legal Battlefields Whilst this schema might seem somewhat abstract, it is directly applicable to the way in which critical legal scholars have approached intervening in political and legal debates. Before examining how these interventions have been conducted, it is necessary to briefly outline the strategic and tactical issues at play. Critical international legal scholarship is a rather broad church, composed of a number of individuals situating themselves in various theoretical traditions.19 That being said, it is arguable that there are a number of theoretical positions around which there is a degree of convergence, and mark scholars out as belonging to the critical legal tradition.20 Whilst these may not capture every figure in the tradition, they provide sufficient overlap for us to think about what the content of a broadly critical legal strategy might be. In basic terms, these are what we might call the indeterminacy thesis, lawfare and structural bias. These three inter-linked positions provide the basic framework through which many critical scholars understand international law, so it is worth unpacking slightly what they mean and how they interconnect. There are many different variants of the indeterminacy thesis: legal realist (American and Scandinavian), structuralist, post-structuralist etc. However, whilst the reasons for indeterminacy may be divergent, it can be argued that they come to similar conclusions. In essence, the indeterminacy thesis refers to the idea that legal argument cannot be resolved on its own (legal) terms. This is because a given legal argument can be opposed by another equally valid legal argument, meaning that from
revolution in contemporary international legal scholarship, see Owen Taylor Reclaiming Revolution, unpublished paper, presented at the Eighth Annual Historical Materialism Conference, 2011. 19 See David Kennedy and Chris Tenant, New Approaches to International Law: A Biography, 35 Harvard International Law Journal (1994) 417-460 at 418-420. This is not taken as an authoritative guide to the contemporary movement, but rather as a historical example of the diversity of the participants in the critical project. 20 See Thomas Skouteris, Fin de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship, 10 Leiden Journal of International Law (1997) 415-420.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION within the law various outcomes will all be equally valid.21 As such, legal interpretation cannot be a neutral affair of applying rules to a given situation, but always involves some level of political choice as to which conflicting argument will apply. Whilst one need not hold to the indeterminacy thesis in order to argue that legal decisions are political, the indeterminacy thesis necessarily implies a political dimension to legal decisions. Lawfare is a very specific term which refers to the idea that international law is a part of modern warfare, and can be used as a weapon by both sides.22 But in this instance the particular usage implies a more general idea about the relationship between international law and the political process. Essentially, critical scholars argue that rather than international law being outside of relations of power, exploitation and domination it is already part of the problem, that is to say that international law has played and continues to play a role in constituting and legitimating these relations.23 This is because it at least partially creates the conditions in which political and economic power is exercised by granting certain types of property, allowing certain types of violence, locating certain agents within certain social positions and granting them certain powers etc.24 In this view, law is not simply a negative relationship that constrains action, but also one that sets the conditions in which action takes place, enabling relations of domination and exploitation. The final element is that of structural bias. The following comment from Martti Koskenniemi gives a glimpse into how it has been understood by critical scholars. Koskenniemi argues that irrespective of the formal openness entailed by indeterminacy the system still de facto prefers some outcomes or distributive choices to other outcomes or choices ... even if it is possible to justify many kinds of practices through the use of impeccable professional argument, there is a structural bias in the relevant legal institutions that makes them serve typical, deeply embedded preferences, and that something we feel that is politically wrong in the world is produced or supported by that bias..25 Whilst there are problems with this specific formulation, it does the final core insight of critical international
21

For the classic account in international law see Martti Koskenniemis From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press 2005). The literature on indeterminacy is large and varied especially given the various approaches outlined above but for some of the critical legal studies literature see Mark Kelman A Guide to Critical Legal Studies (Harvard University Press, 1987) especially as pages 1-63 and Duncan Kennedy A Critique of Adjudication: Fin de Sicle (Harvard University Press, 1997). 22 Charles Dunlap, a central figure in popularising the term, defines it as using or misusing law as a substitute for traditional military means to achieve an operational objective in Lawfare Today: A Perspective 3 Yale Journal of International Affairs (2008) 146-154 at 146. 23 David Kennedy The International Human Rights Movement: Part of the Problem?, 15 Harvard Human Rights Journal (2002) 101-125, which itself is a condensation of the argument he puts forward in The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004). Kennedy deals much more explicitly with the idea of lawfare in his book Of War and Law (2006, Princeton University Press). Along with Susan Marks article State-Centrism, International Law, and the Anxieties of Influence, 19 Leiden Journal of International Law (2006) 339-347 these are some of the primary exponents of the theoretical account of laws role in constituting domination. Equally, there are a number of more historically focused accounts, for example Antony Anghie, Imperialism, Sovereignty and the Making of International Law and Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003). 24 Although obviously not directly a work of international law, Duncan Kennedys analysis of the importance of law in conditioning the bargaining power of economic actors is both influential and exemplary in explaining laws role in the constitution of power relations, see The Stakes of Law, or Hale and Foucault! in Sexy Dressing Etc. (1995, Harvard University Press). Some examples of its use include Alvaro Santos Three Transnational Discourses of Labor Law in Domestic Reforms, 32 University of Pennsylvania Journal of International Law (2010) 123-202 and Robert Wai Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization 20 Columbia Journal of Transnational Law (2001) 209-274. 25 Martti Koskenniemi supra note 21 at 606-607.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION lawyers, namely that law is not a neutral framework through which all interests can be equally expressed, but one which will systematically favour some interests over others.26 Provisionally then, these positions point to a theory about law and legal argument which argues that it occupies a central role in international politics. In this vision, international law helps to constitute and enable those relations that critical scholars want to fight and is not a neutral instrument through which any actors can pursue their interests. Crucially, this is a theory about the structure of law and legal argument, which is not concerned with specific legal rules should be deployed or the outcomes of specific legal decisions, but is rather about the broader the relationship between law and social phenomena. These positions stand in contrast to the mainstream, liberal understanding of international law. The liberal position is the precise inverse of the critical one outlined above. In this understanding, international law is seen as a determinate body of rules, through which various interests could be expressed. Here international law is not said to be constitutive of relations of exploitation of domination, but rather to have played a crucial role in ending such relations historically (particularly in the case of colonialism) and in the present conjuncture to be systematically violated and abused by various superpowers.27 In this account international law is at worst a neutral vessel, and at best the rule of law (as distinct from particular laws) is a force for good. This liberal understanding is one not simply held by lawyers or academic commentators, but is also the common sense understanding of international law that structures public debate.28 Much of this debate proceeds on the understanding that various imperial actions are illegal, must be shown to be so, and contested in these terms.29 The applicability of the strategy and tactics distinction should be obvious here. On the one hand we have a group of scholars advancing a structural critique of international law that is, in the limited sense outlined above, revolutionary. On the other hand, they operate in a context in which the majority of individual struggles over wars, detention of terrorists, debt etc. are conducted in such a way as directly militates against this critique. Thus we have the example of the revolutionary critique (of organic moments) in a non-revolutionary period. What, in this context, would a strategic objective look like? Despite the previously mentioned theoretical and political diversity in critical international legal scholarship, the common organic analysis of international law provides a basic idea of the form such a strategic goal might assume. There are two obvious variants of strategy here. First, there is what we might call the idealist variant. In this account the primary problem to be dealt with is that the ideas of liberal legalism have a hold over policy makers and the public. Consequently, strategic aim would be to reconfigure the debate in such a way that the structural critique of the mainstream would be strengthened, with the eventual aim of constituting it as a hegemonic understanding of international law.30 Second, there is a
26

See also China Miville, Between Equal Rights: A Marxist Theory of International Law (Brill: Leiden, 2005) especially at 293 and David Kennedy, The International Human Rights Movement: Part of the Problem? supra note 23. 27 See Sands supra note 6; Geoffrey Robertson, Crimes Against Humanity (Penguin Books: London, 2006) and David Rose, Guantanamo: America's War on Human Rights (Faber and Faber: London, 2004). 28 The articles cited supra note 7 give some idea of this. 29 Perhaps tellingly, some of the most cogent challenges to this approach have come from those on the right of the political spectrum, see Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford University Press, 2007). Chase Madars columns in the American Conservative available at <http://www.amconmag.com/search.html?v&m=3&author=Chase+Madar&start=0&end=25> provide a similar perspective that remains critical of international laws role in international politics. 30 David Kennedy puts this point very strongly in Of War and Law supra note 23, arguing that the penetration of law into decision making about war has led to an abandonment of responsibility. He therefore argues that [t]he way out will not be to tinker with doctrines of the laws of force. If there is a way forward, it will require a new posture and professional sensibility among those who work in this common language. Recapturing the human

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION materialist approach, which would stress that the material basis of the problems outlined above. On this account, one cannot understand the structuring features of the law and legal argument on their own terms, or simply as ideas. Rather, they need to be understood on the basis of the material conditions of existence that is to say those definite and necessary relations of production that human beings enter into independently of their will.31 As such, it is social and economic forces and relationships which generate indeterminacy, lawfare and structural bias. This means that a strategic goal would necessarily involve overcoming the social relationships that give rise to the problems outlined above, involving action to transform the material conditions of our existence.32 In practical terms, of course, these are hardly mutually exclusive positions since any materialist critique relies on convincing people of its validity.33 The point is that both of these objectives are strategic and so are not directly concerned with winning arguments on the terms of liberal legalism (that is to say, whether given actions would be legal or illegal) but rather aim at overturning those very terms.34 3.2. We are Strategists? 3.2.1. Background Whilst it is clearly possible to imagine a strategic goal for critical legal scholarship, this is not something that has generally informed critical interventions in legal and political debates. Instead, this article will argue that one route that has frequently been taken is that of Spivak, whereby only tactical interventions occur, which are then branded as strategic interventions, foreclosing the possibility of an actual strategic intervention. The logic of this position, and the very real dilemma that gives rise to it, is best illustrated by examining an actual attempt by critical scholars to intervene in a legal-political situation. Since there are very few examples of such interventions, it is necessary to choose one that is rather well-worn, namely, the letter that several British-based critical legal academics wrote on the eve of the second Iraq war, contesting its legality.35 The background to the letter is well-known, but it is worth briefly rehearsing. In 2003 the debate around the invasion of Iraq was raging. Although many opposed it on moral and political grounds, the debate increasingly became dominated by the question whether or not the war would be legal. The United States and its allies (particularly in this case Britain) argued that Security Council Resolution 1441 had revived Security Council Resolution 678
experience of responsibility for the violence of war will require a professional style discouraged by the modern interpenetration of war and law at 170. 31 Karl Marx, Preface and Introduction to A Contribution to the Critique of Political Economy (Foreign Languages Press: Peking, 1976). 32 China Miville is perhaps the most consistent and strident exponent of this position, arguing that: To fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law which means the fundamental reformulation of the political-economic system of which they are expressions. The project to achieve this is the best hope for global emancipation, and it would mean the end of law supra note 26 at 318. 33 Hence Marx argued that theory itself becomes a material source when it has seized the masses in Karl Marx Contribution to the Critique of Hegels Philosophy of Right: Introduction in Robert Tucker (ed.), The MarxEngels Reader (W.W. Norton: New York, 1978). 34 One response here might be to argue that there can be no strategy because it is not possible to transcend the status quo at all, at points this appears to be what Spivak (supra note 3 at 101) does, when she argues since I believe that given our historical position that we have to learn to negotiate with structures of violence, rather than taking the impossible elitist position of turning our backs on everything ... I have to learn myself and teach myself to negotiate with colonialism itself. Some of the specifics of Spivaks position will be contested below, but the analysis in this article applies perhaps a fortiori to those who believe strategy is impossible. 35 War Would be Illegal in The Guardian 7 March 2003, available at <http://www.guardian.co.uk/politics/2003/mar/07/highereducation.iraq>.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION (the ceasefire agreement that had ended the first Gulf War). On this basis, it was argued that since Iraq was in material breach of the Resolution, no further Security Council Resolution was needed to authorise the use of force. Furthermore, some in the United States argued that, in the changed conditions of the war on terror, it was not acceptable in Condoleezza Rices words to let a smoking gun turn into a mushroom cloud.36 According to this line of argument, rather than wait for an attack to be imminent, a state could acting in self defence attack another state that was anticipated to use force.37 Whilst the US government did employ legal argument, it became especially crucial in Britain. Here, the possibility of the invasion was fiercely contested, and the juridical aspect came to the fore in public argument, with both sides invoking international legal argument. In particular, much of the legal argument opposing the war was couched in the liberal legal language outlined above: it was argued that the war would be illegal (hence the law was determinate), that the United States was riding roughshod over international law with its stretched interpretations (so international law was not part of the problem) and that the world would be a better place if international rule of law was respected (indicating that international law was at worst neutral and at best a force for good). Against this background, several critical scholars decided that the time was ripe for an intervention. Although these scholars all shared the anti-liberal critique of international law outlined above, they decided for reasons that will be explained below to intervene by arguing that the war in Iraq would be illegal, thus intervening in the debate on the (liberal) terms in which it was conducted. In this letter to The Guardian, they argued that there is no justification under international law for the use of military force against Iraq, since anticipatory self-defence has no basis in international law and any use of force under the Security Councils mandate must be indicated by clearly expressed assent. Furthermore, they argued, to go forward in these respects would seriously undermine the international rule of law. The one concession made to the critique of international law was the admission that even with authorisation from the Security Council serious questions would remain since a lawful war is not necessarily a just, prudent or humanitarian war. 3.2.2. The Meaning of Strategy The impact and significance of this intervention are ultimately rather difficult to gauge. What is important for the purposes of this argument is that the scholars involved in the intervention identified themselves as part of the critical tradition and explicitly reflected upon it in an article, attempting to account for their intervention in what they called strategic terms. This means that the example provides a very useful entry point into understanding the particular conception of strategy underpinning such interventions. The piece We are Teachers of International Law38 set out to give an account of whether the techniques of critical legal scholarship would preclude strategic intervention in the effort to stop a war. 39 As should be evident at this point, the way in which strategy is understood by these authors differs markedly from the perspective outlined in this article, as well as from how it has been historically theorised.

36

Wolf Blitzer, Search for the smoking gun, < http://articles.cnn.com/2003-0110/us/wbr.smoking.gun_1_smoking-gun-nuclear-weapons-hans-blix?_s=PM:US>. 37 There are numerous accounts of this legal background, but for an accessible introduction see Christine Gray International Law and the Use of Force (Oxford University Press, 2008) at 193-252. Of course, the position on self-defence was not one directly argued by the US government. 38 Matthew Craven, Susan Marks, Gerry Simpson and Ralph Wilde, We Are Teachers of International Law, 17 Leiden Journal of International Law (2004) 363-374. 39 Ibid at 363.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION In the piece strategy is not generally defined directly, instead it is invoked against various opposing terms. The piece initially operates by counterposing strategy to ethics, arguing that the former is differentiated from the latter, by the fact that it is prudential.40 Yet, as has been argued above, prudence can have many different temporal and structural dimensions. What is important about the understanding of strategy in the article is that prudential is understood in a very specific way. One can see how prudence is understood through examining the other contexts in which the term strategy is deployed. The second counterposition that takes place is between strategy and criticism with criticism giving way to strategizing, as mobilisations against the war deepened. What this would seem to indicate is that strategy responds to more immediate circumstances and arguments and so becomes more urgent when people are out on the streets, whilst criticism remains at a distance, indicating a detachment from everyday politics. This is reinforced by the authors describing the intervention as a temporary strategic embrace of the doctrinal.41 Perhaps the most telling remark is that the strategic reason for the intervention was that it might somehow contribute to efforts to stop the war.42 In other words, the intervention was couched in the language of liberal legalism because it was aimed at winning the argument on its own terms, since this was the most likely method of success. A corollary of this was that criticism would have to be discarded.43 Prudence in this account, then, is the prudence of the short term, conjunctural intervention. Strategy meant using those tools which would most effectively win the argument about the Iraq war and help stop it from taking place. The use of the term strategy here then is not that which has informed traditions of political and military theory, it is precisely the opposite; a strategic intervention is seen as a short term, conjunctural intervention that aims to win the argument on its own terms, without considering how to change the terms of the argument. In other words it is a tactical intervention. 3.2.3. You Say Strategy, I say Tactics, Lets Call the Whole Thing Off This issue is not merely semantic. Although there is certainly a problem of definition, the real problem is with the consequences that this choice of terminology has for political action. Here there are three main problems. The first is that an intervention that is successful in tactical terms may nonetheless be problematic in strategic terms. The second is that in the absence of an overarching strategic vision, there are no criteria for deciding when one should use the language of liberal legalism and when one should not. The third and final problem is that these two facts together mean that rather than a strategic adoption of liberal legalism, the vision so outlined is in fact a wholesale capitulation to it. As is seen above, the understanding of strategy that informs the critical interventions is composed of two moves. The first is to define strategy as prudential, the second is to define prudential as meaning able to intervene successfully in short term, conjunctural moments. The profound problem with this position is that in collapsing prudence into the short term, it forecloses the possibility that long term, structural objectives are also practical matters that might also form part of a prudential calculation. In so doing, it fails to note the fact that a victory in the immediate, short term context might ultimately prove disadvantageous for a longer term goal. As Clausewitz noted: [I]f we adopt the idea that the capture of certain geographical points, the occupation of undefended provinces is something in itself we are likely to regard it as an
40 41

Ibid. Ibid at 366 (emphasis added). 42 Ibid at 367. 43 Ibid at 364.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION advantage which can be picked up in passing. If we look at it so, and not as a link in a chain of events, we do not question whether this possession may not later lead to greater disadvantages. How often we find this mistake recurring in the history of war!44 This warning is of great relevance to the type of strategic interventions advocated by the authors. There are serious perils involved in making any intervention in liberal-legalist terms for critical scholars. The first is that as per their own analysis liberal legalism is not a neutral ground, but one which is likely to favour certain claims and positions. Consequently, it will be incredibly difficult to win the argument. Moreover, even if the argument is won, the victory is likely to be a very particular one inasmuch as it will foreclose any wider consideration of the structural or systemic causes of any particular violation of the law. All of these issues are to some degree considered by the authors.45 However, given the way in which strategy is understood, the effects of these issues are generally confined to the immediate, conjunctural context. As such, the emphasis was placed upon the way that the language of liberal legalism blocked effective action and criticism of the war. 46 Much less consideration is placed on the way in which advancing such argument impacts upon the long term effectiveness of achieving the strategic goals outlined above. Here, the problems become even more widespread. Choosing to couch the intervention in liberal legal terms ultimately reinforces the structure of liberal legalism, rendering it more difficult to transcend these arguments.47 In the best case scenario that such an intervention is victorious, this victory would precisely seem to underscore the liberal position on international law. Given that international law is in fact bound up with processes of exploitation and domination on a global scale, such a victory contributes to the legitimation of this system, making it very difficult to argue against its logic. This process takes place in three ways. Firstly, by intervening in the debate on its own terms, critical scholars reinforce those very terms, as their political goals are incorporated into it.48 It can then be argued the law is in fact neutral, because it is able to encompass such a wide variety of viewpoints. Secondly, in discarding their critical tools in order to make a public intervention, these scholars abandon their structural critique at the very moment when they should hold to it most strongly. That is to say, that at the point where there is actually a space to publicise their position, they choose instead to cleave to liberal legalism. Thus, even if, in the purely academic context, they continue to adhere to a critical position, in public political terms, they advocate liberal legalism. Finally, from a purely personal standpoint, in advocating such a position, they undercut their ability to articulate a critique in the future, precisely because they will be contradicting a position that they have already taken. The second point becomes increasingly problematic absent a guide for when it is that liberal legalism should be used and when it should not. Although the embrace of liberal legalism is always described as temporary or strategic, there is actually very little discussion about the specific conditions in which it is prudent to adopt the language of liberal legalism. It is simply noted at various points that this will be determined by the context.49
44 45

Clausewitz supra note 10 at 175. Craven et al supra note 38 at 369. 46 Ibid at 368-369. 47 See Knox, Review Essay: The Degradation of the International Legal Order, supra note 8 for a fuller account of these problems. 48 As iek observes there is always a danger that a particular demand can be incorporated into the system which can with sneering hypocritical satisfaction, make the reply You wanted this? Here, have it! in Slavoj iek Postface, in Georg Lukcs, A Defence of History and Class Consciousness: Tailism and the Dialectic (Verso: London, 2006), 151 at 164 49 Craven et al supra note 38 at 367 and 374.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION As is often the case, the term context is invoked50 without specifying precisely which contexts are those that would necessitate intervening in liberal legal terms. Traditionally, such a context would be provided by a strategic understanding. That is to say, that the specific tactics to be undertaken in a given conjunctural engagement would be understood by reference to the larger structural aim. But here, there are simply no considerations of this. It seems likely therefore, that again context is understood in purely tactical terms. Martti Koskenniemi can be seen as representative in this respect, when he argued: What works as a professional argument depends on the circumstances. I like to think of the choice lawyers are faced with as being not one of method (in the sense of external, determinate guidelines about legal certainty) but of language or, perhaps better, of style. The various styles-including the styles of academic theory and professional practice -are neither derived from nor stand in determinate hierarchical relationships to each other. The final arbiter of what works is nothing other than the context (academic or professional) in which one argues.51 On this reading, the context in which prudence operates seems to the immediate circumstances in which an intervention takes place. This would be consistent with the idea, expressed by the authors, that the strategic context for adopting liberal legalism was that the debate was conducted in these terms. But the problem with this understanding is surely evident. As critical scholars have shown time and time again, the contemporary world is one that is deeply saturated with, and partly constituted by, juridical relations.52 Accordingly, there are really very few contexts (indeed perhaps none) in which political debate is not conducted in juridical terms. A brief perusal of world events would bear this out.53 The logical conclusion of this would seem to be that in terms of abstract, immediate effectiveness, the context of public debate will almost always call for an intervention that is couched in liberal legalist terms. This raises a final vital question about what exactly distinguishes critical scholars from liberal scholars. If the above analysis holds true, then the strategic interventions of critical scholars in legal and political debates will almost always take the form of arguing these debates in their own terms, and simply picking the left side. Thus, whilst their academic and theoretical writings and interventions may (or may not) retain the basic critical tools, the public political interventions will basically be liberal. The question then becomes, in what sense can we really characterise such interventions (and indeed such scholars) as critical? The practical consequence of understanding strategy in essentially tactical terms seems to mean always struggling within the coordinates of the existing order. Given the exclusion of strategic concerns as they have been traditionally understood, there is no practical account for how these coordinates will ever be transcended (or how the debate will be reconfigured). As such, we have a group of people struggling within liberalism, on liberal terms, who may or may not also have some critical understandings which are never actualised in public interventions. We might ask then, apart from good intentions (although liberals presumably have these as well) what
50

As T.J. Clark argues with reference to art history, the term background (which he uses as a synonym for context here) is frequently invoked to side step the problem of giving a concrete account of mediation. Against this Clark argues it is necessary to specify the concrete transactions that are hidden behind invocations of this sort. See T.J. Clark Image of the People: Gustave Courbet and the 1848 Revolution (Thames and Hudson: London, 1973). 51 Martti Koskenniemi, Letter to the Editors of the Symposium, 93 American Journal of International Law (1999) 351-361 at 356. 52 Susan Marks, supra note 23 at 347. 53 See the various articles cited supra note 7.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION differentiates these scholars from liberals? Because of course liberals too can sincerely believe in political causes that are of the left. It seems therefore, that just as in practical terms strategic essentialism collapses into essentialism, so too does strategic liberal legalism collapse into plain old liberal legalism.54 3.3. A Tale of Two Letters, or Taking Theory Seriously This tactical understanding of strategy, and its attendant consequences, is deeply bound up with a particular understanding of the relationship between theory and practice. This is perhaps best encapsulated by Spivaks comment that [y]ou pick up the universal that will give you the power to fight against the other side, and what you are throwing away by doing that is your theoretical purity.55 In this understanding, theory figures as an abstract nonpractical concern that needs to be discarded in order to make political interventions. Hence, in the above account, theoretical concerns about the structure of legal argument need to be jettisoned in order to intervene in real life political argument. The problem with such a position is that it operates with an overly rigid and ultimately untenable distinction between theory and practice. An obvious criticism is that if ones theoretical position is such that it is entirely useless in providing an account of how to intervene in practical debates, perhaps what is needed is a new theory. One could, however, be even more radical in this criticism, and point out that there cannot be any practice without theory. Gramsci argues that everyone is a philosopher because every action they take presupposes a specific conception of the world,56 the only questions then become the degree to which this philosophy is explicit, and how coherent it is. What this points to is the fact that every practical action is necessarily rooted in an understanding of the world, and the place of the action within it. Thus, it is not the case that when one makes an intervention one is throwing away ones theoretical purity, but rather that there must be some other theoretical conception that is underlying ones action. This other conception may in fact contradict the stated theoretical position that is being thrown away. The importance of this is that it undermines somewhat the claim that good intentions will be enough to count in differentiating critical scholarship from liberal legalism. More importantly, it points us to the fact that if theory is to be taken at all seriously, there must be a sense in which it is practically enacted. However, the collapsing of prudence into tactical considerations precisely denies this. The rigid distinction between theory and practice is both a cause and a consequence of the failure to specify the distinction between strategy and tactics. An important part of any understanding of strategy, therefore, involves working out how to enact the theoretical position one claims to hold to in practical and political action.
54

Again, whilst the scholars around the We are Teachers of International Law letter are taken as exemplary, the trend of critical scholars functionally reproducing liberalism in their arguments can be found across the board. For instance, Paavo Kotiaho has forcefully argued that Martti Koskenniemis (political) call for a culture of formalism reproduces this same pattern: [B]y opting for the call for a culture of formalism as the practice of freedom, which is still embedded in the traditional structure of international legal argumentation, Koskenniemi has opted to stay embedded within the same liberal theory of politics, which was the source of his immanent critique ... [B]y opting to enthrone international lawyers, practicing within the status quo of the traditional framework of international legal argument, isnt Koskenniemi in fact calling for the perpetuation of the system, which remains his focus of attack? And even worse, isnt he doing this at the expense of any movement seeking to challenge the status quo? Paavo Kotiaho, A Return to Koskenniemi; or the Disconcerting Co-optation of Rupture, forthcoming in the German Law Journal available at <http://ssrn.com/abstract=1823284>. 55 Spivak supra note 3 at 12. 56 Gramsci supra note 15 at 323. Gramscis position is not one exclusive to the Marxist tradition, there are echoes of it in, for instance Dworkins observation that jurisprudence (that is to say the theory of law) is the general part of adjudication, silent prologue to any decision at law (that is to say the practice of law), in Ronald Dworkin, Laws Empire (Hart Publishing: Oxford, 2006) at 90.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION At a basic level, what might a more strategic intervention look like? China Miville quotes David Kennedy to the effect that an alternative intervention might involve saying international law doesnt know what its doing here folks.57 Such an approach does seem to take more seriously the strategic dimension of critical scholarship, but how does this actually look in practice? A useful example of an alternative approach can be seen in comparing yet more letters to The Guardian, this time in reaction to Operation Cast Lead: Israels highly controversial intervention in Gaza. The first letter58 signed by several critical legal scholars is analogous to We are Teachers of International Law. Couched in liberal legal language, it talks in very abstract terms about possible violations of international humanitarian law in the conflict, ultimately avoiding any broader political questions, such as that of taking sides.59 In contrast to this is the rather trenchant letter drafted by Petter Hallward and Slavoj 60 iek. This letter, which was also signed by several of the signatories of the first letter, did take sides, arguing that [t]here is nothing symmetrical about this war in terms of principles, tactics or consequences. Israel is responsible for launching and intensifying it, and for ending the most recent lull in hostilities. As a consequence of this [i]f we believe in the principle of democratic self-determination, if we affirm the right to resist military aggression and colonial occupation, then we are obliged to take sides... against Israel, and with the people of Gaza and the West Bank. International law did not feature heavily in this letter, there were allusions to it via references to the 1967 borders and a reference to the criminal use of force, but ultimately it seems to figure much more as a rhetorical device, than as one around which the intervention was organised. The obvious point is that the second letter in not organising the intervention around international law, indeed only invoking it briefly and obliquely is able to avoid the perils of reinforcing liberal legalism. Equally, it remains an intervention that is specifically targeted at a debate, putting forward a coherent position. The problem here though, is that precisely because of this, one is left wondering what the precise role of the legal scholar would be here? Is it simply to counsel against the adoption of the tropes of liberal legalism in any intervention? Is it to adopt David Kennedys route, or to use the event to point international laws complicity in the problems so identified? It is as a result of this very real dilemma that many scholars turn to a purely tactical understanding of legal struggle. Whilst We are Teachers may be the most sophisticated articulation of this position, it is one that resurfaces again and again in critical scholarship. Many lengthier works follow a similar pattern. For the vast majority of the piece there will be a historical and/or theoretical examination of the ways in which international law has been deeply complicit with oppression, exploitation and domination. Yet in the final part, there will be a paragraph to the effect that notwithstanding the previous critique it is impossible
57 58

Miville supra note 26 at 300. UK must act to stop violations in Gaza, The Guardian, 14 January 2009. Available at <http://www.guardian.co.uk/world/2009/jan/14/gaza-israel-palestine-letters>. 59 The letter states, for instance As international lawyers, we remind the UK government that it has a duty under international law to exert its influence to stop violations of international humanitarian law in the current conflict between Israel and Hamas. A fundamental principle of international humanitarian law is that the parties to a conflict must distinguish between civilians and those who participate directly in hostilities. Attacks deliberately aimed at the civilian population and civilian objects, by any means, are prohibited, as are attacks that do not discriminate between civilians and combatants, or which are likely to cause harm to civilians that is excessive when compared to the military advantage sought by the attack. There is very little consideration as to whether either side may bear more political responsibility for the problems of the conflict, or of the broader economic and political logics at play. 60 Growing outrage at the killings in Gaza, The Guardian, 16 January 2009. Available at <http://www.guardian.co.uk/world/2009/jan/16/gaza-israel-petitions>.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION to give up on international law. This does not usually make explicit reference to the previous theoretical critique, but rather argues that since international law is the language of international relations (and debate about these relations) prudence demands we continue to use it. Antony Anghie puts it well when he notes: At the very least, I believe that the Third World cannot abandon international law because law now plays such a vital role in the public realm and in the interpretation of virtually all international events. It is through the vocabulary of international law, concepts of self-defence, human rights and humanitarian intervention that issues of cause, responsibility and fault are being discussed and analysed, and interpretations of these doctrines which reproduce imperial relations must be contested.61 This particular move, although not necessarily couched in terms of strategy and tactics, nonetheless reproduces the basic structure criticised above. In it, prudence is once again confined to the short term, conjunctural sense. Yet one cannot simply brush aside such a line of argument, especially when expressed in these terms. If the alternative to the strategic use of liberal legalism is abandoning international law (or some other form of legal nihilism) then liberal legalism would seem to be only real option for those actually engaging in political struggle. The problem is that this counterposition of liberal legalism as against legal nihilism ultimately reproduces the rigid theory/practice divide outlined above, and essentially insists that strategy and tactics exist to the rigid exclusion of one and other. The particular form that this separation takes associating the traditional meaning of strategy with theory and principle, and tactics with practice and prudence means that strategic concerns simply disappear from the picture.62 In contrast to this would be a position that understood that theory is never simply an abstract consideration, but one which is always active in practice, whether implicitly or explicitly. From this would also flow the idea that long term, structural considerations are not to be understood in opposition to prudence but rather as specific structural and temporal articulations of prudence. On this reading, the opposition would not be between using the law (as a liberal) or abandoning it (as a nihilist). Rather the question is on what terms is it possible to use the law without fatally undermining longer term, structural considerations.63
61

Antony Anghie, supra note 23 at 318. Bhupinder Chimni argues similarly: On the other hand, IIs [international institutions] have undergone a quantitative and qualitative transformation in the past two decades. The essence of these changes has been the use of IIs to realize the interests of a TCC [transnational capitalist class]. IIs have come to play a central, though retrograde, role so far as third world states and peoples are concerned. Indeed a nascent global state has emerged under the influence of the TCC and powerful Northern states. Under these circumstances, to suggest that renewalists are condemned to the role of Sisyphus is perhaps to disarm third world peoples against the most significant contemporary embodiments of imperialist policies and strategies. International Institutions Today: An Imperial Global State in the Making, 15 European Journal of International Law (2004) 1-37 at 30. A similar argument can be made with respect to the articles cited supra note 24, which in arguing for actors to alter their bargaining power through altering legal rules presuppose the continued existence in which the bargaining takes place. 62 Clausewitz (supra note 10 at 173) notes that there is quite a powerful tendency to ignore strategic concerns entirely: It may sound strange, but for all who know war in this respect, it a fact beyond doubt, that much more strength of will is required to make an important decision in strategy than in tactics. In the latter we are carried away by the moment: a commander feels himself borne along by a powerful current, against which he dare not contend without the most destructive consequences. 63 China Miville has argued that in fact the opposition between (neo-conservative) legal nihilism and liberal legalism is in fact a form of symbiosis in which [t]he liberal mainstream has attacked the nihilist neocons for gravely injuring international law, and thus stressed neoconservative power; and those nihilists in turn have complimented international law (and by implication its advocates) by denouncing it as a mortal threat. Against this, he argues that neo-conservatives are not simply nihilists, but have a nuanced approach to law, and that

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION This is the understanding that has driven work from within the Marxist tradition to which this article now turns. 4. Reform or revolution? Both! It has often been observed that there is very little work in the Marxist tradition that has systematically sought to understand law.64 Although there is some truth to this, there is at the same time a small but rich literature on the topic. This is the case both in general jurisprudential terms,65 and more specifically particularly over the past decade in terms of international law.66 Yet even if we exclude those writings that explicitly address law, the question of the relationship between law and revolutionary politics has been central to how Marxists have thought about political action. The rubric under which this question has played out is usually that of the debates around reform and revolution. The central problem of these debates to what degree should revolutionary forces engage in action that is within the coordinates of the existing order is one that obviously has a great deal of importance to this argument. Indeed, as argued above, the distinction between strategy and tactics is one that is closely related to that of reform and revolution. However, as will be argued below, it is not simply that strategy is a synonym for revolution and tactics for reform: rather it is the case that the Marxist tradition has used the distinction between strategy and tactics to navigate the problem of reform and revolution in a nuanced way. It should be noted that whilst these authors all understand themselves as working from within the materialist tradition, the insights they provide can also inform the idealist strategy outlined above. 4.1. Work, Wages and Revolution: Marxs Account of the Working Day Marxs oeuvre is replete with considerations of the role that law could play in revolutionary politics. We can see this in his somewhat fragmented considerations of what the dictatorship of the proletariat might look like67 and in the various programmatic statements that he proposed or adhered to.68 However, for the purposes of this argument, what is most fruitful is Marxs analysis of the role of law in struggles around wages and the length of the working day. Marx understands the relationship between capital and labour to be central to the capitalist system. In basic terms, the capitalist is able to exploit his labourers because the
liberal legalism is intensely bound up with imperialism. The point is that the false opposition between liberalism and nihilism is an ideological symptom of the system itself. See China Miville, Multilateralism as Terror: International Law, Haiti and Imperialism, 19 Finnish Yearbook of International Law (2008) 63-93 at 72. 64 See Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (Routledge and Kegan Paul: London, 1979) at 2126. 65 There are a few Marxist works dealing with general jurisprudence and the list would include: Evgeny Pashukanis, Law and Marxism: A General Theory (Ink Links: London, 1978); Anthony Chase, Law and History (The New Press: New York, 1997); Karl Renner, The Institutions of Private Law and their Social Functions (Routledge Kegan & Paul: London, 1949) and Olufemi Taiwo, Legal Naturalism: A Marxist Theory of Law (Cornell University Press, 1996). 66 See, for example, Susan Marks (ed.), International Law on the Left: Revisiting Marxist Legacies (Cambridge University Press, 2008); China Miville, supra note 26; Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (2008); Akbar Rasulov, supra note 8; Umut zsu supra note 8; Sonja Buckel and Andreas Fischer-Lescano, Gramsci Reconsidered: Hegemony in Global Law, 22 Leiden Journal of International Law (2009) 437-454. 67 See Karl Marx, The Critique of the Gotha Programme, in Robert Tucker (ed.) The Marx-Engels Reader (W.W. Norton: New York, 1978) 525-541 and Karl Marx, The Civil War in France, in Robert Tucker (ed.) The Marx-Engels Reader (W.W. Norton: New York, 1978) 618-652. 68 The most obvious example here would be (written with Engels) the Manifesto of the Communist Party, in Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 469-501, especially at 490-491.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION value of the commodities that they produce is more than that of the value of their labour power. The capitalist pays the worker a wage that is less than the value of the commodity he goes onto sell and the difference between these two figures is surplus value. Assuming the fixed value of a given commodity (which is determined at a social level), there are two ways in which the rate of surplus value might be increased: firstly, wages can be reduced and secondly workers can be made to produce more in a working day (either by making them work longer, or work harder within a given day). But this applies conversely too, and the balance of surplus value can be tipped in favour of the working class by increasing their wages, or limiting the working day. Thus, the questions of wages and the working day become objects of great contention under capitalism. These struggles form the basic fabric of the class struggle in its most spontaneous and elementary sense in capitalist society. These struggles are also always articulated in some legal framework: be it the employment contract or through direct legislation. The question that Marx had was what to make of the significance of such struggles. In Value, Price and Profit he argued that these struggles would have to be treated in a highly cautionary way, since they necessarily presupposed the existence of the capitalist system, and simply involved relative distributional changes: [T]he working class ought not to exaggerate to themselves the ultimate working of these everyday struggles. They ought not to forget that they are fighting with effects, but not with the causes of those effects; that they are retarding the downward movement, but not changing its direction; that they are applying palliatives, not curing the malady. They ought, therefore, not to be exclusively absorbed in these unavoidable guerrilla fights incessantly springing up from the never ceasing encroachments of capital or changes of the market. They ought to understand that, with all the miseries it imposes upon them, the present system simultaneously engenders the material conditions and the social forms necessary for an economical reconstruction of society. Instead of the conservative motto: A fair day's wage for a fair day's work! they ought to inscribe on their banner the revolutionary watchword: Abolition of the wages system!"69 Marxs critique dovetails precisely with that outlined above. Fixation on the day-to-day struggles, on their own terms, ends up precluding the transcendence of the system that causes the problems in the first place. Against this, a demand would have to be raised which would call for the destruction of the system. However, what is interesting here is that Marx does not rigidly counterpose the unavoidable guerrilla fights to the revolutionary watchword; rather he seems to note that both need to be part of the struggle. Indeed, he argues earlier that [b]y cowardly giving way in their everyday conflict with capital, they [the working class] would certainly disqualify themselves for the initiating of any larger movement. 70 However, in this work he has not quite yet managed to say how these might be articulated together. It is in this respect that Marxs seminal discussion of the regulation of the length of the working day in Capital becomes relevant. Here Marx is much more positive about the potential of the everyday struggle, arguing: For protection against the serpent of their agonies, the labourers must put their heads together, and, as a class, compel the passing of a law, an all-powerful social barrier that shall prevent the very workers from selling, by voluntary contract with
69

Karl Marx, Wage Labour and Capital and Value Price and Profit (International Publishers: New York, 2006) at 61. 70 Ibid.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION capital, themselves and their families into slavery and death. In place of the pompous catalogue of the inalienable rights of man comes the modest Magna Charta of a legally limited working-day, which shall make clear when the time which the worker sells is ended, and when his own begins. Quantum mutatus ab ilo!71 What is vitally important here is that Marx argues the only way that this law was able to be passed was because workers moved away from their isolated individualism. The struggle for the limitation of the working day meant that the working class had to come together as a class, and as such recognise their common interests, as well as their opposition to the capitalist class, it also required a high degree of practical organisation and coordination. In other words, this struggle was vital to the constitution of the working class as a political subject. In Marxs vision, such a political subject the working class organised as a class-foritself is the only vehicle that would be capable of overthrowing capitalist social relations. In this way, a tactical intervention into the conjuncture the struggle for the limitation of the working day is framed and directed by the strategic goal of overthrowing capitalism. Rather than erecting an absolute opposition between liberalism and nihilism or reform and revolution, Marx articulates a truly strategic position. 4.2. The Goal is Everything: Luxemburgs Critique of Reformism The kernel of this position was taken up and developed in Rosa Luxemburgs polemic against Eduard Bernstein: Reform or Revolution. For a pamphlet that is so strongly associated with advocating revolution as against reform it is interesting that Luxemburg opens with an explicit denial of this very opposition: At first view the title of this work may be found surprising. Can the social democracy be against reforms? Can we counterpose the social revolution, the transformation of the existing order, our final goal, to social reforms? Certainly not. The daily struggle for reforms, for the amelioration of the condition of the workers within the framework of the existing social order, and for democratic institutions, offers to the social democracy an indissoluble tie. The struggle for reforms is its means; the social revolution, its aim.72 Luxemburgs point then is that it makes no sense to make a rigid distinction between reform and revolution. This is because the only way in which a movement in favour of the overthrow of capitalism could be built up and gain the strength to do so is through the struggle for reforms. However, Luxemburg is at pains to suggest that nevertheless there is a distinction between (what was then) the social democratic movement and bourgeois radicalism and this was the question of strategy. Luxemburg argues that the only way in which the social democratic movement is not simply one that engages in a vain effort to repair the capitalist order is in its strategic goal of overthrowing this capitalist order.73 Whilst there is no rigid distinction between reform and revolution; in order for the social democratic movement to not simply collapse into bourgeois radicalism, it was necessary that the tactical struggles for reform be pursued not in their own sake, but precisely in order to build up this movement. Thus, the particular tactics that are deployed, and the way in which they will be deployed, must necessarily be shaped by this strategic goal. As David Harvey puts it the difference between a reformist and a revolutionary is not necessarily that
71 72

Karl Marx, Capital (Oxford World Classics, 1999) at 181-182. Rosa Luxemburg, The Essential Rosa Luxemburg: Reform or Revolution and The Mass Strike (Haymarket Books: Chicago, 2008) at 41. 73 Ibid at 42.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION you do radical things all the time, but it is that at a given moment, you may all do the same thing, i.e. demand living wage, but you do it with a different objective, and that is as a longterm transition.74 4.3. Towards Revolutionary Realpolitik: Lukcs Leninism The most comprehensive formulation of this line of thinking can be found in the work of Georg Lukcs. Lukcs argues that the position and significance of tactics in the field of political action differ greatly in accordance with the structure and historic-philosophical role peculiar to those parties and classes.75 For Lukcs, there is a fundamental difference between revolutionary classes and other classes, and this difference lies in their ultimate objective. Essentially, this would correspond to the distinction between critical and liberal positions; the latters ultimate objective is one that is a moment within the given social reality, whereas in the case of the former this objective transcends it.76 In the case of the liberal approach, the existing (legal) order is a given principle which ... determines the scope of any action, in the case of the critical or radical approach the given order is simply something to be taken into account for reasons of expediency. We can understand this in terms of strategy and tactics. Lukcs argument means that liberals do not have to worry about strategic concerns in the same way that critics do. Instead, their concerns are purely tactical, since they presuppose the existing order in all of their actions. In contradiction to this, the only thing that distinguishes the critical position is precisely that its ultimate objective is to transcend the existing order. In order to remain critical, it is necessary that this ultimate objective is immanent in everyday acts. As such tactical interventions must be shaped by this strategic orientation: This contrast helps greatly to elucidate the tactics of the revolutionary classes and parties: their tactics are not determined by short-term immediately attainable advantages; indeed, they must sometimes reject such advantages as endangering what is truly important, the ultimate objective. But since the ultimate objective has been categorized, not as Utopia, but as reality which has to be achieved, positing it above and beyond the immediate advantage does not mean abstracting from reality or attempting to impose certain ideals on reality, but rather it entails the knowledge and transformation into action of those forces already at work within social reality those forces, that is, which are directed towards the realization of the ultimate objective. Without this knowledge, the tactics of every revolutionary class or party will vacillate aimlessly between a Realpolitik devoid of ideals and an ideology without real content.77 In this way Lukcs diagnoses acutely some of the problems outlined above. In conflating strategy and tactics to the exclusion of the former, critical scholars have oscillated between a liberal realpolitik, and a structural critique which serves as a legitimating factor (of good intentions) but is ultimately without content. What he suggests is that the way forward is to understand the necessity to frame tactics in terms of strategy. This double articulation: understanding that strategic concerns are absolutely vital, and then they can only be expressed through tactical interventions, is what Lukcs calls revolutionary realpolitik.78 At
74

A Conversation with David Harvey 5 Logos: A Journal of Modern Society and Culture (2006) available at <http://www.logosjournal.com/issue_5.1/harvey.htm>. 75 Georg Lukcs, Political Writings 1919-1929 (New Left Books: London, 1972) at 3. 76 Ibid at 3. 77 Ibid at 4. 78 Georg Lukcs, Lenin: A Study on the Unity of his Thought (New Left Books: London, 1970) at 72-88.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION the very least, this will entail not adopting those methods of intervening in the conjuncture which whilst successful on their own terms undermine the ultimate objective. Aside from this merely negative relation, Lukcs argues that every intervention in the concrete situation must be related to a generally correct appreciation of the whole historical process.79 Concretely, this would entail shifting the priority in a given intervention, not just to win on its own terms, but to use that struggle to advance the ultimate objective, through the construction of a movement, training its militants in struggle, connecting the party to the class etc.80 What is most interesting about Lukcs from the perspective of this paper is that he explicitly attempted to understand how this might apply to law. Lukcs starting point is his standard ultimate objective, that of the abolition of capitalism. He further argues that law is a life-form created by capitalism.81 Consequently, as a strategic aim, law itself must be abolished, and this will frame the tactical use of law in any given situation. For Lukcs, the central point is that the working class must learn to act without the life-forms of capitalism inwardly influencing its actions.82 The concrete manifestation of this is that the working class must avoid fetishising the law, instead seeing both state and law as mere power factor[s]83 whose importance is not derived from any moral or historical essence. By consequence, law should be granted no more importance than any other external fact of life with which it is necessary to reckon when deciding upon any definite course of action.84 This means that the breaking of law (or conspicuous illegality) should not be romanticised or accorded any special importance, since this law would have preserved its authority ... in an inverted form.85 For Lukcs, the only way that this can proceed is when [t]he question of legality or illegality reduces itself then for the Communist Party to a mere question of tactics, even to a question to be resolved on the spur of the moment.86 In this way, the law is accorded no special respect, and its form and structure is not able to break up and block any social movement. It is simply an instrumental consideration to be subordinated to the political needs of the moment. This is the kernel of what I have elsewhere characterised as principled

79 80

Ibid at 83. The fact that Lukcs was writing about Lenin is not accidental here. Lenin was perhaps the finest expositor (and practitioner) of the understanding of strategy envisaged in this article. However, given the range and size of his corpus, it is beyond the scope of this article to discuss this in any detail. One seemingly innocuous example though, would be that of Lenins writing on the development of a newspaper. Whilst some might simply see a newspaper in terms of propagandising, Lenin argued it would serve as a collective organiser, since the mere technical task of regularly supplying the newspaper with copy and of promoting regular distribution will necessitate a network of local agents of the united party, who will maintain constant contact with one another, know the general state of affairs, get accustomed to performing regularly their detailed functions in the AllRussian work, and test their strength in the organisation of various revolutionary actions. This network of agents will form the skeleton of ... [an organisation] that is sufficiently large to embrace the whole country; sufficiently broad and many-sided to effect a strict and detailed division of labour; sufficiently well tempered to be able to conduct steadily its own work under any circumstances, at all sudden turns, and in face of all contingencies; sufficiently flexible to be able, on the one hand, to avoid an open battle against an overwhelming enemy, when the enemy has concentrated all his forces at one spot, and yet, on the other, to take advantage of his unwieldiness and to attack him when and where he least expects it. Vladimir Lenin Where to Begin in Collected Works: Volume 5 (Foreign Languages Publishing House: Moscow, 1961) 13-24 at 22-23. 81 Georg Lukcs, History and Class Consciousness: Studies in Marxist Dialectics (Merlin Press: London, 1971) at 264. 82 Ibid. 83 Ibid at 263. 84 Ibid. 85 Ibid. See also Nathaniel Berman Legitimacy Through Defiance: From Goa to Iraq 23 Wisconsin International Law Journal (2005) 93-125. 86 Ibid at 264.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION opportunism.87 Instantly though, a question arises if Lukcs is simply saying that we should use law tactically (even if for strategic reasons), in what sense can this be said to be different from the criticism of liberalism outlined above? Although the answer to this question is not explicit in Lukcs own account, it stems logically from the fact that he is advocating a principled opportunism. On the one hand, it is clear that Lukcs is advocating an instrumental use of law, linking it to rather conjunctural considerations and this is the sense in which his position is opportunistic. However, he advocates doing this for principled reasons, that is to say, in order to undercut both the ideological and structural dimensions of law, so as to ultimately aim for its abolition. So in this sense, his advocacy of a tactical approach is substantive. This would mean that law should always be openly invoked instrumentally and openly subordinated to political considerations, with the particular legal arguments changed whenever the particular political needs change. These invocations are necessarily partisan, involving not the defence of a law or a right in general but in order to support the movement (and openly stated to be so).88 On this account, law should never be invoked as an independent consideration: an intervention should never be conducted directly in the name of legality. This is the way in which strategy shapes tactics, if the aim is to undermine liberal legalism, appealing directly to the hold it has over people and their debates is unacceptable. The full implications of such a position will be outlined below, but one very obvious conclusion is that the kind of intervention embodied in We are Teachers of International Law is off the table. 5. Principled Opportunism Revisited Lukcs particular take on these issues is not without its problems. First and foremost, he operates with a rather formalist and positivist notion of law: derived at least partially from his Weberian heritage.89 Consequently, his critique of law relies on an overly reified distinction between legal and illegal. This position ultimately depends on the kind of liberal reasoning criticised by critical scholars, given that such a rigid distinction relies on the idea that the law is determinate. As a consequence of this, Lukcs (and his legal strategy) to some degree argues that one might simply decide to use or not use law. But this almost entirely ignores the fact that very frequently this will not be a choice. We are always and already enmeshed in legal relations, and as such it cannot be said that there is a simple choice.

87 88

Knox, Marxism, International Law and Political Strategy, supra note 8 at 433-434. Irina Ceric encapsulates this attitude perfectly in her account of movement lawyers in the context the Toronto G20, where she argues: We are not civil libertarians but active supporters and/or members of social movements which come under attack by the state because they challenge through various means, including extra-legal ones such as direct action and civil disobedience the oppressive ways our society is organized. Irina Ceric, Towards Praxis: Movement Lawyers and Scholars as Organic Intellectuals unpublished paper presented at Fourth Annual Conference of the Toronto Group for the Study of International, Transnational and Comparative Law at 4-5. Although this may sound like an unimportant consideration, there are certainly a number of civil libertarians who will defend, for instance, the right of far right groups to free speech, see for instance Philippa Strum, When the Nazis Came to Skokie: Freedom for Speech We Hate, (University of Kansas Press, 1999). 89 He quotes Weber to the effect that The modern capitalist concern is based inwardly above all on calculation. It requires for its survival a system of justice and an administration whose workings can be rationally calculated, at least in principle, according to fixed general laws, just as the probable performance of a machine can be calculated., characterising the judge as more or less an automatic statute-dispensing machine in which you insert the files together with the necessary costs and dues at the top, whereupon he will eject the judgment together with the more or less cogent reasons for it at the bottom: that is to say, where the judges behaviour is on the whole predictable, Lukcs supra note 81 at 96.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION Here, it is useful to briefly turn to the work of perhaps the premier Marxist legal theorist, Evgeny Pashukanis. Here is not the place to recount his position in any detail,90 but Pashukanis analysis is able to deepen and enrich Lukcs strategy. Very simply, Pashukanis argues that law as a specific form of social regulation and dispute resolution is generated by commodity exchange.91 His basic argument is that in commodity exchange both parties to the exchange must assume a position of formal, abstract equality each must recognise the other as having the capacity to own and exchange commodities. Therefore when disputes arise within this relationship they must be solved in such a way as to preserve this equality. 92 With the development and spread of capitalist social relations the commodity form comes to exercise a hegemonic influence over the entire social field. Its logic comes to structure various aspects of social life, and accordingly, this homology extends to the field of dispute resolution, with the legal form embedding and further extending commodification. The consequence of this argument is that under capitalism every sphere of social life becomes increasingly juridified. On this account, within capitalist social relations law is both pervasive and inevitable.93 Every action that we take is already enmeshed in juridical relations and will have inevitable juridical consequences, to simply deny this fact is neither here nor there. In this respect John Austins brutal observation on natural law theory is apposite: Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.94 Or to put it rather more crudely, if you dont do the law, the law will do you.95 This slight reformulation of Lukcs point is important, because the focus cannot be the distinction between legality and illegality but rather, on the way in which law and legal arguments are used.96 This adds an extra layer to the strategy of principled opportunism. Whereas in Lukcs argument, the primary issue is law as an institutional phenomenon that one can choose to obey or not, in this version we need to carefully distinguish between law as an institutional phenomenon (or the terrain of juridical practices courts, tribunals, lawsuits etc.), and the role of law in framing political mobilisations. This is
90

There are innumerable accounts of Pashukanis basic approach, but for some introductions see Miville supra note 26 at 75105 and Knox supra note 8 at 291292. 91 Evgeny Pashukanis, General Theory of Law and Marxism in Piers Beirne and Robert Sharlet (eds.), Pashukanis: Selected Writings (1980, Academic Press) 37-131, especially at 40-90. 92 Miville supra note 26 at 75. 93 Thanks to China Miville for this formulation. 94 John Austin, The Province of Jurisprudence Determined (2001, Cambridge University Press) at 158. 95 Thanks to Sundhya Pahuja for this formulation. 96 Pashukanis position is ultimately very close to Lukcs arguing as he does that [F]or the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault. The revolutionary nature of Leninist tactics never degenerated into the fetishist denial of legality; this was never a revolutionary phrase. On the contrary, at given historical stages, he firmly appealed to use those legal opportunities which the enemy, who was merely broken but not fully defeated, was forced to provide. Lenin knew not only how mercilessly to expose tsarist, bourgeois etc. legality, but also how to use it, where it was necessary and when it was necessary. See Lenin and the Problems of Law, in Beirne and Sharlet (eds), Pashukanis: Selected Writings (1980, Academic Press), 133-164 at 138.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION because simply put law in its former guise is inevitable: whatever we do will have legal consequences and this cannot simply be ignored. The latter though is rather different, whilst legal argument may be especially persuasive within capitalist social relations, the point still stands that interventions should not be framed in terms of legality, because here at least there is a choice as to using the law or not.97 Thus, this first aspect of principled opportunism still stands and the type of intervention typified by We Are Teachers of International Law remains strategically problematic. What of the institutional dimension? As above, the strategic goal needs to frame these tactical interventions. Again, slightly reformulating Lukcs, principled opportunism demands that the deployment of legal argument be openly subjected to political exigencies, with different arguments being deployed whenever necessary. As such, legal argument is being geared towards the strategic aim of building a movement to overthrow capitalism, rather than on its own terms. On the one hand, this will involve defensive struggles, where legal argument is deployed in order to defend political activists when the state seeks to attack them. To give an example in terms of the Iraq war then, international legal argument could be involved to defend activists against criminal charges for sabotaging military facilities.98 Equally provided rhetorically this is characterised as being for instrumental reasons one might pursue a legal claim in order to attempt to prevent an action, or punish those involved with it. This could involve contesting the legality of certain state practices particularly those which might be said to violate international human rights conventions in order to publicly reveal these practices, and perhaps to constrain their future use (thus giving the movement a greater ability to organise). However, although such institutional uses of the law are aimed at something other than legal struggle for its own sake, they nonetheless remain collusory in the sense that the Jacques Vergs defined it.99 By this, Vergs means a trial in which the accused respects the established public order, by arguing through its legal terminology. Whilst the ultimate aim may be to transcend law, and the particular practice geared towards it, in an immediate sense it remains within the logic of the law. Against this, Vergs proposed his strategy of rupture.100 Here, rather than simply using legal argument for the purpose of advancing revolutionary goals the legal situation is used to directly promote political goals. In this

97

Susan Marks criticises China Miville for overly reifying the distinction between the inside and outside of international law since public opinion is not simply a response to or judge of international legal developments; it partly constitutes those developments. Mivilles account gives very little sense of what might be called the public-cultural dimensions of international law, its mutually determining relationship with the media, and so on. The sharp line he draws between international laws inside and its outside does not seem to do justice to his own characterization of international law as a part of political processes. Marks supra note 8 at 211. Her critique here is largely correct, but one must be equally careful not to go too far in the other direction, whilst public opinion clearly does have an influence on legal processes (and vice versa), the above analysis suggests the need to draw at least some distinction between the two. This is especially because public opinion can presumably affect legal outcomes even when that opinion is not directly mobilised through a rhetoric of legalism. 98 Here, the argument would be that if a given act is unlawful in international legal terms, force may be used in order to prevent it under Section 3 of the Criminal Law Act 1967 (or any equivalent which allows force to be pursued in order to prevent illegal action from being carried out), obviously this was unsuccessful in the case of R v. Jones [2006] UKHL. However, it was rather more successful in the Northern Irish courts, where in R v. McCann and Others [2008] NICA 25, a similar defence was contemplated in relation to the Israeli assault on Lebanon. 99 Jacques Vergs, De La Stratgie Judiciaire, (Les ditions de Minuit: Paris, 1968) especially at 19 (all quotes from this work are translated by this author); see Martti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck Yearbook of United Nations Law (2002) 1-35, at 2632 and Emilios Christodoulidis, Strategies of Rupture, 20 Law and Critique (2009) 3-26 for overviews of Vergs work, although both suffer from not quite situating Vergs within the political tradition of radical Third World Marxism to which he then belonged. 100 Verges supra note 98 at 19.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION situation, the trial is used less to acquit the accused than to illuminate his ideas,101 the ruptural strategy uses the spectacle and publicity of law, to directly undermine the law by launching a political a political attack on the existing order. As he says of Dimitrov (the Communist tried by the Nazis for allegedly conspiring to start the Reichstag fire) he attacked the facts, the witnesses, the investigation, but not to defend himself, to attack, to demolish.102 The example that is frequently used is Vergs defence of Klaus Barbie. But perhaps most interesting is his account of the various Third World struggles that took place through the medium of international law. Take for example, the issue of torture during the Algerian war of independence; Vergs argues that the Algerian National Liberation Front did not raise the issue of torture in order to show that individual rights had been violated. Rather, the demand was raised to show that torture was an inseparable and inevitable consequence of French colonialism, aimed at destroying the Algerian people. In this way the attempt was made to use the publicity of the trial to mount a directly political critique of colonialism. Indeed, for Vergs the ultimate example of this was Fidel Castros trial of those involved in the Bay of Pigs, where the trial was merely a staging point for a political lesson: The dialogue with the prisoners had an arbiter: the people. It was to them that the revolution and counter-revolution spent four hours giving an account. This pure trial, stripped of all judicial forms, becomes a lesson in political science.103 Vergs vision might be said to be the purest instantiation of principled opportunism. It recognises the centrality and importance of law to capitalism, but seeks to use this centrality to directly undermine both capitalism and the law. In a very immediate sense, strategy is manifested through tactics. Unfortunately, Vergs is perhaps slightly too dismissive about the prospects of collusory trials, arguing that [m]ethods cannot be different from the goal and consequently reformists and revolutionaries cannot defend themselves in the same way.104 Vergs essentially comes very close to collapsing strategy and tactics here, misunderstanding that a collusory trial might itself further the agenda of overthrowing capitalism (and law) but in a more mediated sense.105 Equally, he does not recognise that an adherence inside the trial to the existing order, could be matched by defiance outside of it. This is likely because Vergs was writing in a revolutionary conjuncture, where the overthrow of the existing order was at least a real possibility.106 Given that the very distinction between strategy and tactics is to some degree premised on non-revolutionary situations one can see how this could occur.

101 102

Ibid, at 104 Ibid, at 108 103 Ibid, at 119 104 Ibid, at 176 105 Thus, as Koskenniemi notes (supra note 99 at 27), the trial of Dimitrov (a leader of the Communist International who the Nazis tried for having a role in the Reichstag fire) was one in which [t]he sole objective in the trial, as described by Verges, was to advance the cause of the proletariat. Everything else, including Dimitrov's own fate - he refused to rely on an alibi of being away from Berlin on the night of the fire - was secondary. But of course it may be that the best way to advance the cause of the proletariat was to make sure that Dimitrov did not die in a fascist jail, which might require organising a defence of collusion. 106 Indeed, as Vergs explicitly argues (supra note 99 at 183): From 1917 to now, and especially since the end of the Second World War and the victory of the Chinese Revolution, there has been a profound acceleration in ruptural trials. Two irreducible conceptions compete globally, each backed by men, countries and organisations. The accused, even in chains, present themselves in the name of another order and another world. It was precisely this fact that meant that the ruptural trial was no longer simply a method to spread ideas, but could also be successful in securing an acquittal. In respect of Dimitrov, Vergs writes that he was no longer alone [as Socrates was] but a militant, and that his release was secured in part because the USSR had become a great power, such that in Western countries a solidarity movement arose ... to demand his release and henceforth a

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION It therefore seems wisest to understand principled opportunism as a basic tenet that law is not to be used on its own terms, but rather in furtherance of a strategic goal (which is includes transcending liberal legalism). Within this, there is a continuum between the more defensive collusory aspects, and the more offensive ruptural aspects, the calculation of which to use will be a practical political one.107 6. Conclusion This article has attempted to redress a common problem in critical scholarship. This problem is the use of the term strategy. It began by reconstructing the distinction between strategy and tactics, arguing that strategy refers to the achievement of long term, structural (or organic) goals, whereas tactics refers to the achievement of short term, conjunctural ones. It was then argued that contemporary critical legal scholarship has tended to define strategy in tactical terms and consequently paid little attention to long term, structural goals. In so doing, what was described as a strategic adoption of liberal legalism was in fact an implicit capitulation to liberal legalism. The article went on to note that this exclusion of strategy was the linked to the idea that there in legal interventions there was a rigid choice between legal nihilism on the one hand and liberal legalism on the other. The article then turned to the Marxist tradition, to show that this was a false dilemma, since actualising strategic concerns does not necessarily mean jettisoning practical interventions in everyday legal struggles, but rather framing these struggles in terms of the overall strategic goal. It was argued that a position of principled opportunism offered the best scope for intervening in conjunctural legal debates, without losing sight of the strategic goal. The question remains though, what type of political intervention can critical scholars make? Here, there are several points that can be made. Firstly, in a negative sense they can adopt the mode of intervention that David Kennedy suggests, pointing out that the liberal lefts embrace of legal argument is problematic. This could go further than Kennedys international law doesnt know what its doing here folks, and rather point out that international law knows exactly what it is doing and is an integral part of our exploitative and oppressive reality.108 Secondly, and in a linked vein, critical scholars can help shape the direction of campaigns of other radicals, who often cleave to a rhetoric of liberal legalism, seemingly by default. In this way, critical scholars can attempt to shape the debate, without reinforcing the very legalism which needs to be undermined. Once again, whilst principled opportunism understands the constitutive and pervasive role of law as a social form (and its unavoidability), reinforcing this through framing public political interventions in primarily legal terms is a problem.

defendant can put forward his ideas and, at the same time, thanks to the solidarity of his comrades, eventually force the court to retreat and release him (ibid at 105). 107 It should go without saying that the arguments put forwards here are in no sense entirely novel and to some degree at least find themselves reflected in the practices of various activists and social movements. In this vein, Honor Brabazons work on the use of law by the Bolivian Landless Movement (MST) shows rather convincingly that their use of law precisely attempts to use it but not on its own terms. However, and it is at this point that the importance of theory reappears, she further argues that the activists have not fully worked out their relationship with the law, at times investing it with too much hope; ultimately perhaps in the idiom of this article they are not principled enough in their opportunism. See Honor Brabazon The Law, the Land, and Capital: Agrarian Reform and Resistance in Contemporary Bolivia unpublished paper, presented at Towards a Radical International Law, London, 2011. 108 See Rasulov supra note 8 for a comprehensive account of some of the tasks that critical lawyers might undertake in mapping relationship between international law and contemporary global capitalism, especially at 282-294.

DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION This brings us onto the more positive sense in which critical scholars may play a role. Whilst obviously not advocates, critical scholars do, to some degree, hold themselves out as experts in international law and certainly any public interventions rely on claiming to possess this expertise. There are legal arguments or connections that they can provide to activists in their opportunist use of law. This may not be the primary role in which legal academics see themselves, but they may in fact be in a better position to do this than practitioners, freed as they are from some of the formal ethics of the professional lawyer.109 This ultimately leaves critical scholars in a much less important position than some accounts would imply. Moreover, it suggests that critical scholars need to focus more in the ways in which their critique can reach a broader community of activists and political actors.110 But perhaps this is the price of taking theory seriously.

109

For example John Hendy QC, a Vice President of the Haldane Society of Socialist Lawyers, responded to the question Is it important for lawyers to take a political stand? with the answer Not in their professional work, no. Ive always thought the notion of a left-wing barrister is an absurdity ... Of course its nice to represent people with whom you sympathise and that would be true whether theyre trade unionists or people who are disabled or subject to any form of injustice, its just a nice feeling. But I think the cab-rank rule is far more important. You dont ask what someones politics or religion are before you accept a brief, Russell Fraser and Ripon Ray, Interview with John Hendy, in 55 Socialist Lawyer (2010) 16-20, at 20. One can speculate on the reasons for this: whether it is to do with the immersion into the (liberal) ideology of the law, which is much stronger in legal practice, or to do with more mundane material reasons (one cannot afford to be political), or simply an issue of the internal disciplinary measures of the profession. But in any case, it suggests the possibility that scholars may occasionally be more able to be actively political in their legal practice. 110 Rasulov supra note 8 at 280 argues that critical legal scholars must pay greater attention to how they write so as to produce easily communicable, analytically accessible statements that will enable the forging of durable coalitions with the most practically active segments of the broader international political arena. Similarly, Ceric supra note 88 at 8 argues that one of the key tasks of organic (legal) intellectuals is to translate critical (legal) theory in such a way that it can inform the practice of activists.