robert knox, strategy and tactics, fybil 2010

5/27/2018 Robert Knox, Strategy and Tactics, FYBIL 2010

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Strategy and Tactics

Robert Knox*

ABSTRACT: Critical international legal scholars have long grappled with thequestion of how to intervene in legal and political debates. In recent yearsone trend has been to argue that it is necessary to intervene strategically insuch debates. However, what is meant by strategically in this instance is anessentially pragmatic intervention focused on winning the debate in the shortterm. In the usual language, such an intervention would be called tactical asopposed to strategic, with strategy referring to ones longer term, structuralobjectives. is article argues that contemporary critical scholarship has lostsight of the distinction between strategy and tactics, resulting in the systematicexclusion of the former from political and theoretical discourse. e articlebegins by reconstructing the division between strategy and tactics. Followingthis, it proposes what a strategic objective for critical international lawyersmight look like. It is then argued that in actual fact interventions in debateshave been purely tactical interventions couched in the language of strategy.earticle then traces the problems that flow from this arguing that a perpetualfocus on short term, conjunctural considerations turns a supposedly strategicadoption of liberal legalism into a capitulation to it. e article next traces howthe Marxist tradition has understood the intimate relationship between strategyand tactics, and its usage of these terms to navigate the debate around reformand revolution. Finally, the piece attempts to reconstruction a specifically legalstrategy that draws on the insights provided by the Marxist tradition.

KEYWORDS: strategy, tactics, Marxism, critical legal studies, international legaltheory

By rushing into sordid reformist compromises or pseudorevolutionary collectiveactions, those driven by an abstract desire for immediate effectiveness are in realityobeying the ruling laws of thought, adopting a perspective that can see nothingbut 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 Debord1

* PhD Candidate, London School of Economics and Political Science.is paper was presentedat 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. Mydeepest thanks to Irina Ceric, Giorgos Galanis, Susan Marks, China Miville, John Haskell,


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194 Finnish Yearbook of International Law (Vol. 21, 2010)

1. Introduction

In a 1990 interview in e Postcolonial Critic, Gayatri Spivak described how sherelated her theoretical positions to her more political interventions. She arguedthat although theoretically and intellectually she was opposed to universalismor essentialism, it was necessary to make a strategic choice2when interveningpolitically. is strategic choice involved recognising that since the language ofuniversalism or essentialism was the language in which political debates wereconducted, one had to adopt this language in order to make an intervention.us, she spoke of universality because universality was in the air from the otherside in the talk of female discourse ... and since I believe that one shouldnt throwaway things but use them, strategically ... perhaps here was an item which could

be used as a universal signifier.3is position that anti-essentialists should notsimply discard essentialism, but must instead deploy essentialist arguments inconcrete political contexts has come to be known as strategic essentialism.4

Yet although such a position has an evident attraction, one can immediatelyimagine several problems with it. e first problem is when one should use es-sentialism and when one should not. Spivaks argument simply seems to be thatthere are some times that essentialism should be used and other times when itshould not, what is lacking is any broader criterion as to its use or non-use.esecond problem is that of legitimation. Is it really the case that we should alwaysengage in debates purely on the terms that we find them? In so doing, do wenot risk winning the particular argument, whilst at the same time legitimating

those broader structures that we wish to undermine? e combination of thesetwo arguments points to the third objection we can raise. If one uses essentialismwhenever it is effective to do so, having no concern as to whether ones behaviouris legitimating that very language, in what sense is ones behaviour different fromanyone elses? In other words, does strategic essentialism, in this sense, not simplycollapse into essentialism?

ese problems stem from the fact that, notwithstanding its characterisation,Spivaks position is not one of strategicessentialism at all. Although her posi-tion clearly is one that pays attention to the pragmatic dimensions of political

Eva Hartmann, Florian Hoffmann, Paavo Kotiaho, Akbar Rasulov, Owen Taylor and AlbertoToscano for enduring my endless and incoherent rants about this topic, as well as their pertinentand useful responses to said rants. anks also (and again) to Paavo Kotiaho, Chris Taylor,Owen Taylor and Akbar Rasulov for their helpful comments on drafts of this article. In thetypical academic inversion of corporate responsibility, all errors of style and substance remainmy own. References to online sources are accurate as of 17 August 2011.

1. Guy Debord, Society of the Spectacle(Rebel Press: London)at 119.2. Gayatri Spivak,e Postcolonial Critic: Interviews, Strategies, Dialogues(Routledge: New York

and London, 1990) at 10.3. Ibid., at 11.4. See Bart Moore-Gilbert,Postcolonialeory: Contexts, Practices, Politics(Verso: London, 1997) at 198.


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Strategy and Tactics 195

interventions, these dimensions are confined purely to the short term. Whilst

she gives an account of how immediate arguments might be won, she gives noconsideration of how to reconfigure the terms of these arguments, thus undermin-ing essentialism itself. At best, her position is one of tacticalessentialism, payinglittle or no attention to the deeper or longer term aspects of the critique of es-sentialism. is is not simply a matter of semantics. In conflating strategy andtactics a distinction that will be explored more fully below Spivak completelysubsumes the former into the latter, with the essential outcome that all mattersof effectiveness are reduced to purely short term considerations.

What relevance does this have for international law? Whilst international lawhas always been a central feature of international politics, it is only in recent yearsthat it has become a regular feature in the news media, and a more important

part of everyday political life. is has been particularly evident in the centralitythat international law has come to assume in the construction and contestationofforeign policy.5ere have been various moments that were especially importantin this process: beginning perhaps with Kosovo and culminating in the War onTerror and the 2003 Iraq war. Most recently, debates around the killing of BinLaden and the NATO intervention in Libya have been conducted in fiercelyjuridical terms.6

For those scholars and practitioners of international law who identify them-selves as part of the left this has raised considerable problems. e main ques-tion has been how to intervene in these debates in a distinctively left or criticalfashion. is 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 interestsof the oppressed and exploited.7It is here that the above considerations on

5. 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: PhilippeSands, Lawless World: Making and Breaking Global Rules(Penguin Books: London, 2006).

6. us, in relation to Bin Laden, Ken Livingstone former Mayor of London asked are wegangsters or a Western democracy based on the rule of law?, Pippa Crerar, Ken Livingstone:Killing makes Barack Obama look like a mobster ine Evening Standard, (visited 4 May 2011). Boris Johnson present, Conservative, Mayor ofLondon argued similarly: Lets be clear: Osama bin Laden was executed and for good reasonine Telegraph, (visited 8 May2011). Against this see Eric Holder, Bin Laden death not an assassination, (visited). In the Libyan context, most argumentsmounted against the intervention have been on the grounds that mission creep will meanthat the intervening forces go beyond the bounds of the UN Security Council Resolution (andhence the action will breach international law), see for example Ian Traynor, Libya: missioncreep claims as UK sends in military advisers in e Guardian, (visited 19 April 2011).

7. See in particular: Robert Knox, Marxism, International Law and Political Strategy, 22 Leiden


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Spivak become relevant. As will be argued below, Spivaks strategic essentialism

is a sophisticated articulation of the basic logic that underpins a great deal ofcritical thinking on how to intervene in these debates. ese accounts rely onthe idea that a strategic intervention has to be made into the existing debates,whilst focusing almost exclusively on short term, tactical considerations. us,strategy has become systematically confused with tactics, resulting in its exclusionfrom theoretical discourse. ose same problems identified in Spivaks approachcontinually resurface in critical legal scholarship.

is article seeks to challenge the above position and construct an alternativeaccount of how critical international lawyers might intervene politically. To thisend, Section 2 of this article briefly reconstructs the distinction between strat-egy and tactics. In Section 2.1 this is achieved through examining the original

context in which this distinction was articulated, that of military theory. Section2.2 turns to a slightly different sphere that of political theory and attemptsto see how the originally military distinction has been understood in politicalterms. Section 3 examines how the distinction can illuminate the attempts ofcritical legal scholars to intervene in political debates. In section 3.1 an attemptis made to imagine what a strategic objective for critical legal theory might looklike, through examining the theoretical commonalities of some of its participants.is is followed by section 3.2 which uses the letter written by several academicsagainst the Iraq war as a lens to examine how critical scholars have understoodthe relationship between strategy and tactics. Here it will be argued that thesewritings have fallen into the trap outlined above confusing strategy with tactics

and ultimately end up collapsing into liberalism. Section 3.3 argues that one ofthe central elements of this position is that it erects a rigid dichotomy betweenliberal legalism and legal nihilism, in which liberal legalism cannot help butseem attractive. Section 4 examines a number of writers in the Marxist tradition,arguing that their understanding of strategy allowed them to bridge the dividebetween liberal legalism and legal nihilism. Finally, in section 5, the article putsforward a specifically legal conception of the relationship between strategy andtactics, developing a position of principled opportunism.

Journal of International Law (2009) 413-426; Robert Knox, Review Essay:e Degradationof the International Legal Order, 18 Historical Materialism (2010) 193-207; Bill Bowring,Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox, 19 Historical

Materialism (2011) 113-127; Umut zsu, e Question of Form: Methodological Notes onDialectics and International Law, 23 Leiden Journal of International Law(2010) 687-707;

Akbar Rasulov, e Nameless Rapture of the Struggle: Towards a Marxist Class-eoreticalApproach to International Law, 19 Finnish Yearbook of International Law(2008) 243-294and Susan Marks, International Judicial Activism and the Commodity-Form eory ofInternational Law, 18 European Journal of International Law(2007) 199-211.


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2. e Anatomy of a Distinction

2.1. Politics as War

Although today strategy is perhaps seen as synonymous with the world of busi-ness, it has its origins in what we might call military science, and continues tobe a central term in the contemporary military world. Indeed many of thosewho used the terms strategy or tactics in describing politics were influenceddirectly by these military theorists.8Accordingly, before turning to the politicalusage of the term, it is wise to begin with how these military theorists have dealtwith these notions. Carl von Clausewitz, one of the most influential exponentsof modern military theory, defined strategy as:

[T]he use of the engagement to attain the object of the war ... It must thereforegive an aim to the whole military action. is aim must be in accord with theobject of the war. In other words, strategy develops the plan of the war, and tothe aforesaid aim links the series of acts which are to lead to it; that is, it plans theseparate campaigns and arranges the engagements to be fought in each of them.9

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 broaderobjective. In contradistinction to this is tactics, which is concerned with smallerand shorter term matters. Tactics are concerned with how to win the individualbattles and engagements of which the war is composed.10

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 ourlong term aims or objectives, whereas tactics concerns the methods throughwhich we achieve our shorter term aims or objectives. e obvious conclusion

8. See Jacob W. Kipp, Lenin and Clausewitz: e Militarization of Marxism, 1914-1921, 49Military Affairs(1985) 184-191 and Sigmund Neumann and Mark von Hagen, Engels andMarx on Revolution, War, and the Army in Society, in Peter Paret (ed.),Makers of ModernStrategy 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 issuesof 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) 179-254.9. Karl von Clausewitz, War Politics and Power (Gateway Press: Chicago, 1965) at 171.10. Clausewitzs definition here is not taken as necessarily definitive but as both the classic

definition, and representative of how many have characterised strategy, thus Montgomerydefined strategy as the art of the conduct of war, tactics the art of fighting (Field-MarshalMontgomery of Alamein,A History of Warfare(Collis: London, 1968), see also B.H. LiddellHart, Strategy (Faber: London, 1967) at 321, Mao Tse-tung Problems of Strategy supranote8 at 183, and Guevara Guerilla Warfaresupra note 8 at 14. e Oxford English Dictionarydefines strategy as the art of a commander-in-chief; the art of projecting and directing thelarger military movements and operations of a campaign in distinction to tactics which isthe art of handling forces in battle or in the immediate presence of the enemy.


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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 toonly the immediatesituation. As will be explored more fully below, any tacticalintervention will also have strategic consequences.is means that when thinkingabout effectiveness, it is necessary to understand the inherent relation betweenstrategy and tactics.11In so doing, the distinction allows us to consider how effec-tive particular (seemingly short term) interventions might be in the longer term.

e very obvious difficulty here is that in practical terms it may be quite dif-ficult to distinguish between the long term and the short term. is is particularlytrue in the case of political interventions. More than this, however, temporalitydoes not quite capture the distinction between a battle and a war. Althoughit is clear that there aretemporal differences between the two, there could be

innumerable examples of long battles or short wars. Instead, the difference be-tween a battle and a war (and therefore between tactics and strategy) seems toturn on a structuraldistinction, lying in the particular aims and objectives of thedifferent types of engagement. Whilst the task of a battle is generally simply todefeat a given enemy militarily, the task of a war will be more complex, involv-ing the disposition of forces, decisions about whether some battles should evenbe fought (or whether some ought to simply be lost) and complex political anddiplomatic aspects.12Of course this difference in kind generally doescorrespondto a distinction between the long and the short term, but this does not representthe essence of the problem. As such, whilst temporality remains an importantpart 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 distinctionoperates in military terms can be directly mapped onto the political and legalsphere.is is especially true given that war is to quote Clausewitz again thecontinuation of policy by other means13. Despite this, there is a common threadrunning between military and political theory on this subject, with politicalthinkers sharing a similar understanding of strategy as operating in the longterm. In order to understand how this has been translated, it is useful to turn

11. See Guevara Guerilla Warfare supranote 8 at 18-19 and Mao Tse-tung Problems of Strategysupranote 8 at 183-184, for the necessary relation between strategy and tactics.

12. Peter Paret, Introduction in Paret Makers of Modern Strategy supranote 8 at 3.13. Clausewtiz War, Politics and Power supra note 9 at 83. One might note here Foucaults

inversion of this proposition, where he argues that politics is the continuation of war byother means, see Michel Foucault Society Must be Defended Lectures at the Collge de France,1975-76(Picador: New York, 2003). In this work he more generally develops a theory asto the central role of war in structuring politics, and of the utility of concepts drawn frommilitary theory in accounting for social phenomena.


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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). Conjuncturalphenomena too depend on organic movements to be sure, but they do not haveany very far-reaching historical significance; they give rise to a political criticismof a minor, day-to-day character, which has as its subject top political leaders andpersonalities with direct governmental responsibilities. Organic phenomena onthe other hand give rise to socio-historical criticism, whose subject is wider socialgroupings beyond the public figures and beyond the top leaders.14

Gramsci articulated this distinction in part in order to understand the logicof strategic and tactical interventions in the political sphere.15In this account,strategy is related to organic phenomena, that is to say those relationships whichare relatively permanent, and serve as the basic or fundamental structure of thefield 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 whichit is composed. Strategic questions are those that are addressed at critiquing andoverturning these relationships.

Accordingly, we might say that strategic interventions are revolutionary,16inasmuch as they address critiquing or abolishing the basic logic of the system.Moreover, since they address relationships that operate at a broader and less im-

mediate level than other struggles, strategic decisions are likely to be informed ina 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

14. Antonio Gramsci, Selections from the Prison Notebooks (Lawrence and Wishart: London, 2003)at 177-178.

15. is should be accompanied by the explanation of what is meant in politics by strategy andtactics, by strategic plan, by propaganda and agitation, by command structure or science ofpolitical organisation and administration, ibid., at 176.

16. Ine 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 conductingisolated operations. By strategy, we understand the art of conquest, i.e., the seizure of power.Leon Trotsky, e Lessons of October, (visited). However, one need not think of revolution purely in its political sense here, onecould equally think of revolution in the terms that Kuhn formulated it, as a paradigm shiftin a way of understanding the world, see omas Kuhn, e Structure of Scientific Revolutions(University of Chicago Press, 1996); for an attempt to apply this explicitly to radical politicsand social science see David Harvey, Revolutionary and Counter Revolutionary eory inGeography and the Problem of Ghetto Formation, 4Antipode(1972) 1-13.


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they aim at finding the most effective methods to achieve a goal. e 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 transitoryconflicts and battles that occur in the political sphere, which could be a wholerange of different issues: from an individual election, to a particular protest and soon. Consequently, there is a sense in which, in contrast to strategy, tactics wouldbe more concerned with reform than with revolution,17since tactics deals withthose occurrences which do not directly call the system into question.

Of course, tactics and strategy do not exist in rigid isolation from each other.is is because as above any given act which has to be reckoned with tacti-cally 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 tacticaldecisions will be immediatelystrategic. However, these revolutionary situationsare in fact extremely rare, occurring only in extraordinary historical conjunctures.For the majority of time the distinction between strategy and tactics is a necessaryone because the critique of the basic structural logic of the system is notidenticalwith every day struggles within it, and the critique of this structure is not onethat has an immediate appeal to the majority of people.

us, to go back to an earlier point, the distinction between strategy and tacticscould be said to be a consequence of advancing a revolutionary critique in non-revolutionary times. is is where the issue of temporality returns, for whilst the

distinction between strategy and tactics is a structural one, in non-revolutionarytimes it will almost always assume a temporalform. If the overturning of the socialstructure is not immediately on the cards, it must become a long term goal, whereasconjunctural issues necessarily operate in the shorter term. Since the strategy andtactics distinction only makes sense in non-revolutionary times, it follows that itwill almost always appear in a temporal form. To put it simply, we might say strat-egy concerns finding methods to achieve long term, systemic aims, whereas tacticsconcerns finding methods to achieve short term, conjunctural aims.

17. To some degree this will be problematised below, in the exploration of how Marxists havenavigated debates around reform and revolution, but it serves as a useful starting point. Foran exploration of the function of revolution in contemporary international legal scholarship,see Owen Taylor Reclaiming Revolution, unpublished paper, presented at the Eighth AnnualHistorical Materialism Conference, 2011.


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3. Strategic essentialism redux

3.1. Laws War and Legal Battlefields

Whilst this schema might seem somewhat abstract, it is directly applicable to theway in which critical legal scholars have approached intervening in political andlegal debates. Before examining how these interventions have been conducted,it is necessary to briefly outline the strategic and tactical issues at play. Criticalinternational legal scholarship is a rather broad church, composed of a numberof individuals situating themselves in various theoretical traditions.18at beingsaid, it is arguable that there are a number of theoretical positions around whichthere is a degree of convergence, and mark scholars out as belonging to the criticallegal tradition.19Whilst these may not capture every figure in the tradition, theyprovide sufficient overlap for us to think about what the content of a broadlycritical legal strategy might be. In basic terms, these are what we might call the indeterminacy thesis, lawfare and structural bias.

ese three inter-linked positions provide the basic framework through whichmany critical scholars understand international law, so it is worth unpackingslightly what they mean and how they interconnect. ere are many differentvariants of the indeterminacy thesis: legal realist (American and Scandinavian),structuralist, post-structuralist etc. However, whilst the reasonsforindeterminacymay be divergent, it can be argued that they come to similar conclusions. In es-sence, the indeterminacy thesis refers to the idea that legal argument cannot beresolved on its own (legal) terms.is is because a given legal argument can beopposed by another equally valid legal argument, meaning that from withinthe law various outcomes will all be equally valid.20As such, legal interpretationcannot be a neutral affair of applying rules to a given situation, but always in-volves 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

18. See David Kennedy and Chris Tenant, New Approaches to International Law: A Biography,35 Harvard International Law Journal (1994) 417-460 at 418-420. is is not taken as anauthoritative guide to the contemporary movement, but rather as a historical example of thediversity of the participants in the critical project.

19. See omas Skouteris, Fin de NAIL: New Approaches to International Law and its Impacton Contemporary International Legal Scholarship, 10 Leiden Journal of International Law(1997) 415-420.

20. For the classic account in international law see Martti KoskenniemisFrom Apology to Utopia:e Structure of International Legal Argument(Cambridge University Press, 2005).e literatureon 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 CriticalLegal Studies (Harvard University Press, 1987) especially at pages 1-63 and Duncan Kennedy,

A Critique of Adjudication: Fin de Sicle (Harvard University Press, 1997).


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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. 21But in this instance the particular usage implies a more general idea about therelationship between international law and the political process. Essentially, criti-cal scholars argue that rather than international law being outside of relations ofpower, exploitation and domination it is already part of the problem, that is tosay that international law has played and continues to play a role in constitutingand legitimating these relations.22is is because it at least partially creates theconditions in which political and economic power is exercised by grantingcertain types of property, allowing certain types of violence, locating certain

agents within certain social positions and granting them certain powers etc.23In this view, law is not simply a negative relationship that constrains action, butalso one that sets the conditions in which action takes place, enablingrelationsof domination and exploitation.

e final element is that of structural bias. e following comment fromMartti Koskenniemi gives a glimpse into how it has been understood by criticalscholars. Koskenniemi argues that irrespective of the formal openness entailed byindeterminacy the system still de facto prefers some outcomes or distributive choices to

21. 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

Charles Dunlap, Lawfare Today: A Perspective, 3 Yale Journal of International Affairs (2008)146-154 at 146.

22. David Kennedy e International Human Rights Movement: Part of the Problem?, 15Harvard Human Rights Journal (2002) 101-125, which itself is a condensation of the argumenthe puts forward in e Dark Sides of Virtue: Reassessing International Humanitarianism(Princeton University Press, 2004). Kennedy deals much more explicitly with the idea oflawfare in his book Of War and Law(2006, Princeton University Press). Along with SusanMarks 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 ofthe theoretical account of laws role in constituting domination. Equally, there are a numberof more historicallyfocused accounts, for example Antony Anghie, Imperialism, Sovereigntyand the Making of International Law (Cambridge University Press, 2005) and BalakrishnanRajagopal, International Law from Below: Development, Social Movements and ird WorldResistance(Cambridge University Press, 2003).

23. Although obviously not directly a work of international law, Duncan Kennedys analysisof the importance of law in conditioning the bargaining power of economic actors is bothinfluential and exemplary in explaining laws role in the constitution of power relations, seeDuncan Kennedy, e Stakes of Law, or Hale and Foucault! in Sexy Dressing Etc.(1995,Harvard University Press) at 85-125. Some examples of its use include Alvaro Santos reeTransnational Discourses of Labor Law in Domestic Reforms, 32University of Pennsylvania

Journal of International Law(2010) 123-202 and Robert Wai Transnational Liftoff andJuridical Touchdown: e Regulatory Function of Private International Law in an Era ofGlobalization 20 Columbia Journal of Transnational Law(2001) 209-274.


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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 biasinthe relevant legal institutions that makes them serve typical, deeply embeddedpreferences, and that something we feel that is politically wrong in the world isproduced or supported by that bias..24Whilst there are problems with this specificformulation, it does the final core insight of critical international lawyers, namelythat law is not a neutral framework through which all interests can be equallyexpressed, but one which will systematically favour some interests over others.25

Provisionally then, these positions point to a theory about law and legal ar-gument which argues that it occupies a central role in international politics. Inthis vision, international law helps to constitute and enable those relations thatcritical 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 structureoflaw and legal argument, which is not concerned with specific legal rules shouldbe deployed or the outcomes of specific legal decisions, but is rather about thebroader the relationship between law and social phenomena. ese positionsstand in contrast to the mainstream, liberal understanding of international law.e liberal position is the precise inverseof the critical one outlined above. In thisunderstanding, international law is seen as a determinate body of rules, through

which various interests could be expressed. Here international law is not saidto be constitutive of relations of exploitation of domination, but rather to haveplayed a crucial role in ending such relations historically (particularly in the caseof colonialism) and in the present conjuncture to be systematically violated and

abused by various superpowers.26In this account international law is at worst aneutral vessel, and at best the rule of law(as distinct from particular laws) is aforce for good.

is liberal understanding is one not simply held by lawyers or academiccommentators, but is also the common sense understanding of internationallaw that structures public debate.27Much of this debate proceeds on the under-standing that various imperial actions are illegal, must be shown to be so, andcontested in these terms.28e applicability of the strategy and tactics distinction

24. Martti Koskenniemi, From Apology to Utopia, supra note 20, at 606-607.25. See also China Miville, Between Equal Rights: A Marxist eory of International Law(Brill:

Leiden, 2005) especially at 293 and Kennedy, e International Human Rights Movement,supranote 22.

26. See Sands, Lawless World, supra note 5; Geoffrey Robertson, Crimes Against Humanity (PenguinBooks: London, 2006) and David Rose, Guantanamo: Americas War on Human Rights(Faberand Faber: London, 2004).

27. e articles cited supranote 6 give some idea of this.28. 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, e Limits ofInternational Law(Oxford University Press, 2007). Chase Madars columns in theAmericanConservative


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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 outlinedabove, revolutionary. On the other hand, they operate in a context in whichthe majority of individual struggles over wars, detention of terrorists, debtetc. are conducted in such a way as directly militates against this critique. uswe have the example of the revolutionary critique (of organic moments) in anon-revolutionary period.

What, in this context, would a strategic objective look like? Despite thepreviously mentioned theoretical and political diversity in critical internationallegal scholarship, the common organic analysis of international law provides abasic idea of the form such a strategic goal might assume.ere are two obviousvariants 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 ideasof liberallegalism have a hold over policy makers and the public. Consequently, strategicaim would be to reconfigure the debate in such a way that the structural critiqueof the mainstream would be strengthened, with the eventual aim of constitut-ing it as a hegemonic understanding of international law.29Second, there is amaterialist approach, which would stress that the material basis of the problemsoutlined above. On this account, one cannot understand the structuring featuresof 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 existencethat is to say those definite and necessary relations of production that humanbeings enter into independently of their will.30As such, it is social and economic

forces and relationships which generate indeterminacy, lawfare and structuralbias. is means that a strategic goal would necessarily involve overcoming thesocial relationshipsthat give rise to the problems outlined above, involving actionto transform the material conditions of our existence.31

0&end=25>(visited 1 August 2011)provide a similar perspective that remains critical ofinternational laws role in international politics.

29. David Kennedy puts this point very strongly arguing that the penetration of law into decisionmaking 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 thiscommon language. Recapturing the human experience of responsibility for the violence ofwar will require a professional style discouraged by the modern interpenetration of war andlaw Kennedy, Of War and Law, supranote 22, at 170.

30. Karl Marx, Preface and Introduction toA Contribution to the Critique of Political Economy(Foreign Languages Press: Peking, 1976), at 3.

31. China Miville is perhaps the most consistent and strident exponent of this position, arguingthat: To fundamentally change the dynamics of the system it would be necessary not to reformthe institutions but to eradicate the forms of law which means the fundamental reformulationof the political-economic system of which they are expressions.e project to achieve this is thebest hope for global emancipation, and it would mean the end of law Miville, Between EqualRights, supra note 2, at 318.


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In practical terms, of course, these are hardly mutually exclusive positions since

any materialist critique relies on convincingpeople of its validity.32e point isthat both of these objectives are strategic and so are not directly concerned withwinning arguments on the terms of liberal legalism (that is to say, whether givenactions would be legal or illegal) but rather aim at overturning those very terms.33

3.2. We are Strategists?

3.2.1. Background

Whilst it is clearly possible to imagine a strategic goal for critical legal scholar-ship, this is not something that has generally informed critical interventions inlegal and political debates. Instead, this article will argue that one route that has

frequently been taken is that of Spivak, whereby only tactical interventions oc-cur, which are then brandedas strategic interventions, foreclosing the possibilityof an actual strategic intervention. e logic of this position, and the very realdilemma that gives rise to it, is best illustrated by examining an actual attemptby critical scholars to intervene in a legal-political situation. Since there are veryfew examples of such interventions, it is necessary to choose one that is ratherwell-worn, namely, the letter that several British-based critical legal academicswrote on the eve of the second Iraq war, contesting its legality.34

e background to the letter is well-known, but it is worth briefly rehears-ing. In 2003 the debate around the invasion of Iraq was raging. Although manyopposed it on moral and political grounds, the debate increasingly became

dominated by the question whether or not the war would be legal. e UnitedStates and its allies (particularly in this case Britain) argued that Security Coun-cil Resolution 1441 had revived Security Council Resolution 678 (the ceasefireagreement that had ended the first Gulf War). On this basis, it was argued thatsince Iraq was in material breach of the Resolution, no further Security CouncilResolution was needed to authorise the use of force. Furthermore, some in theUnited States argued that, in the changed conditions of the war on terror, it wasnot acceptable in Condoleezza Rices words to let a smoking gun turn into a

32. Hence Marx argued that theory itself becomes a material source when it has seized the massesin Karl Marx Contribution to the Critique of Hegels Philosophy of Right: Introduction inRobert Tucker (ed.), e Marx-Engels Reader (W.W. Norton: New York, 1978) 53-65, at 60.

33. One response here might be to argue that there can be no strategybecause it is not possible totranscend the status quoat all, at points this appears to be what Spivak (supranote 2, at 101)does, when she argues since I believe that given our historical position that we have to learnto negotiate with structures of violence, rather than taking the impossible elitist position ofturning our backs on everything ... I have to learn myself and teach myself to negotiate withcolonialism itself. Some of the specifics of Spivaks position will be contested below, but theanalysis in this article applies perhaps a fortiori to those who believe strategy is impossible.

34. War Would be Illegal ine Guardian, 7 March 2003, (visited 1.8.2011).


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mushroom cloud.35According to this line of argument, rather than wait for an

attack to be imminent, a state could acting in self defence attack anotherstate that was anticipatedto use force.36

Whilst the US government did employ legal argument, it became especiallycrucial in Britain. Here, the possibility of the invasion was fiercely contested,and the juridical aspect came to the fore in public argument, with both sidesinvoking international legal argument. In particular, much of the legal argumentopposing the war was couched in the liberal legal language outlined above: it wasargued that the war would be illegal (hence the law was determinate), that theUnited States was riding roughshod over international law with its stretchedinterpretations (so international law was not part of the problem) and that theworld would be a better place if international rule of law was respected (indi-

cating 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 ripefor an intervention. Although these scholars all shared the anti-liberal critiqueof international law outlined above, they decided for reasons that will be ex-plained below to intervene by arguing that the war in Iraq would be illegal, thusintervening in the debate on the (liberal) terms in which it was conducted.

In this letter to e Guardian, they argued that there is no justification underinternational 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 SecurityCouncils mandate must be indicated by clearly expressed assent. Furthermore,they argued, to go forward in these respects would seriously undermine the in-

ternational rule of law. e one concession made to the critique of internationallaw was the admission that even with authorisation from the Security Councilserious questions would remain since a lawful war is not necessarily a just,prudent or humanitarian war.

3.2.2. e Meaning of Strategy

e impact and significance of this intervention are ultimately rather difficult togauge. What is important for the purposes of this argument is that the scholarsinvolved in the intervention identified themselves as part of the critical tradi-tion and explicitly reflected upon it in an article, attempting to account for theirintervention in what they called strategic terms.is means that the exampleprovides a very useful entry point into understanding the particular conception

35. Wolf Blitzer, Search for the smoking gun, (visited 1 August 2011).

36. ere are numerous accounts of this legal background, but for an accessible introductionsee 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 USgovernment.


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of strategy underpinning such interventions. e piece We are Teachers of

International Law37 set out to give an account of whether the techniques ofcritical legal scholarship would preclude strategic intervention in the effort tostop a war.38As should be evident at this point, the way in which strategy isunderstood by these authors differs markedly from the perspective outlined inthis article, as well as from how it has been historically theorised.

In the piece strategy is not generally defined directly, instead it is invokedagainst various opposing terms. e piece initially operates by counterposingstrategy to ethics, arguing that the former is differentiated from the latter, by thefact that it is prudential.39Yet, as has been argued above, prudence can havemany different temporal and structural dimensions. What is important aboutthe understanding of strategy in the article is that prudential is understood in a

very specific way. One can see how prudence is understood through examiningthe other contexts in which the term strategy is deployed.

e second counterposition that takes place is between strategy and criti-cism with criticism giving way to strategizing, as mobilisations against thewar deepened. What this would seem to indicate is that strategy responds tomore immediate circumstances and arguments and so becomes more urgentwhen people are out on the streets, whilst criticism remains at a distance, in-dicating a detachment from everyday politics. is is reinforced by the authorsdescribing the intervention as a temporary strategic embrace of the doctrinal.40Perhaps the most telling remark is that the strategic reason for the interven-tion was that it might somehow contribute to efforts to stop the war.41In

other words, the intervention was couched in the language of liberal legalismbecause it was aimed at winning the argument on its own terms, since this wasthe most likely method of success. A corollary of this was that criticism wouldhave to be discarded.42

Prudence in this account, then, is the prudence of the short term, conjuncturalintervention. Strategy meant using those tools which would most effectively winthe argument about the Iraq war and help stop it from taking place. e use ofthe term strategy here then is notthat which has informed traditions of politicaland military theory, it is precisely the opposite; a strategic intervention is seenas a short term, conjunctural intervention that aims to win the argument on itsown terms, without considering how to change the terms of the argument. In

other words it is a tacticalintervention.

37. Matthew Craven, Susan Marks, Gerry Simpson and Ralph Wilde, We Are Teachers ofInternational Law, 17 Leiden Journal of International Law(2004) 363-374.

38. Ibid., at 363.39. Ibid.40. Ibid., at 366 (emphasis added).41. Ibid., at 367.42. Ibid., at 364.


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3.2.3. You Say Strategy, I say Tactics, Lets Call the Whole ing Off

is issue is not merely semantic. Although there is certainly a problem of defini-tion, the real problem is with the consequences that this choice of terminologyhas for political action. Here there are three main problems. e first is that anintervention that is successful in tactical terms may nonetheless be problematicin strategic terms. e second is that in the absence of an overarching strategicvision, there are no criteria for deciding when one should use the language ofliberal legalism and when one should not. e third and final problem is thatthese two facts together mean that rather than a strategic adoption of liberallegalism, the vision so outlined is in fact a wholesale capitulation to it.

As is seen above, the understanding of strategy that informs the critical inter-

ventions is composed of two moves.

efi

rst is to defi

ne strategy as prudential,the second is to define prudential as meaning able to intervene successfully inshort term, conjunctural moments. e profound problem with this position isthat in collapsing prudence into the short term, it forecloses the possibility thatlong term, structural objectives are also practical matters that might also formpart of a prudential calculation. In so doing, it fails to note the fact that a victoryin the immediate, short term context might ultimately prove disadvantageousfora longer term goal. As Clausewitz noted:

[I]f we adopt the idea that the capture of certain geographical points, the occupa-tion of undefended provinces is something in itself we are likely to regard it asan 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 notlater lead to greater disadvantages. How often we find this mistake recurring inthe history of war!43

is warning is of great relevance to the type of strategic interventionsadvocated by the authors. ere are serious perils involved in making any in-tervention in liberal-legalist terms for critical scholars. e first is that aspertheir own analysis liberal legalism is not a neutral ground, but one which islikely to favour certain claims and positions. Consequently, it will be incred-ibly difficult to win the argument. Moreover, even if the argument iswon,the victory is likely to be a very particular one inasmuch as it will forecloseany 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 theauthors.44However, given the way in which strategy is understood, the effectsof these issues are generally confined to the immediate, conjunctural context.As such, the emphasis was placed upon the way that the language of liberal

43. Clausewitz, War, Politics and Power, supra note 9, at 175.44. Craven et al., We Are Teachers of International Law supra note 37, at 369.


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legalism blocked effective action and criticism of the war.45Much less considera-

tion is placed on the way in which advancing such argument impacts upon thelong term effectiveness of achieving the strategic goals outlined above. Here, theproblems become even more widespread. Choosing to couch the intervention inliberal legal terms ultimately reinforces the structure of liberal legalism, renderingit more difficult to transcend these arguments.46In the best case scenario thatsuch an intervention is victorious, this victory would precisely seem to underscorethe liberal position on international law. Given that international law is in factbound up with processes of exploitation and domination on a global scale, sucha victory contributes to the legitimationof this system, making it very difficultto argue against its logic.

is 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 goalsare incorporated into it.47It can then be argued the law is in fact neutral, becauseit is able to encompass such a wide variety of viewpoints. Secondly, in discardingtheir critical tools in order to make apublicintervention, these scholars abandontheir structural critique at the very moment when they should hold to it moststrongly.at is to say, that at the point where there is actually a space to publicisetheir position, they choose instead to cleave to liberal legalism. us, 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 purelypersonal standpoint, in advocating such a position, they undercut their abilityto articulate a critique in the future, precisely because they will be contradicting

a position that they have already taken.e second point becomes increasingly problematic absent a guide for when

it is that liberal legalism should be used and when it should not. Although theembrace of liberal legalism is always described as temporary or strategic,there is actually very little discussion about the specific conditions in which it isprudent to adopt the language of liberal legalism. It is simply noted at variouspoints that this will be determined by the context.48As is often the case, theterm context is invoked49without specifying precisely which contexts are those

45. Ibid.,at 368-369.46. See Knox, Review Essay:e Degradation of the International Legal Order, supra note 7 for

a fuller account of these problems.47. 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 wantedthis? Here, have it! in Slavoj iek, Postface, in Georg Lukcs,A Defence of History andClass Consciousness: Tailism and the Dialectic(Verso: London, 2006) 151-182 at 164.

48. Craven et al., We Are Teachers of International Law supra note 37, at 367 and 374.49. 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 aconcrete account of mediation. Against this Clark argues it is necessary to specify the concrete


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that would necessitate intervening in liberal legal terms. Traditionally, such a

context would be provided by a strategic understanding. at is to say, that thespecific tactics to be undertaken in a given conjunctural engagement would beunderstood by reference to the larger structuralaim. But here, there are simplyno considerations of this.

It seems likely therefore, that again context is understood in purely tacticalterms. Martti Koskenniemi can be seen as representative in this respect, whenhe argued:

What works as a professional argument depends on the circumstances. I like tothink of the choice lawyers are faced with as being not one of method (in thesense of external, determinate guidelines about legal certainty) but of languageor, perhaps better, of style. e various styles including the styles of academic

theory and professional practice are neither derived from nor stand in deter-minate hierarchical relationships to each other.e final arbiter of what works isnothing other than the context (academic or professional) in which one argues.50

On this reading, the context in which prudence operates seems to the im-mediate circumstances in which an intervention takes place. is would beconsistent with the idea, expressed by the authors, that the strategic contextfor adopting liberal legalism was that the debate was conducted in these terms.But the problem with this understanding is surely evident. As critical scholarshave shown time and time again, the contemporary world is one that is deeplysaturated with, and partly constituted by, juridical relations.51Accordingly, thereare really very few contexts(indeed perhaps none) in which political debate is notconducted in juridical terms. A brief perusal of world events would bear thisout.52e logical conclusion of this would seem to be that in terms of abstract,immediate effectiveness, the context of public debate will almost always call foran intervention that is couched in liberal legalist terms.

is raises a final vitalquestion about what exactly distinguishes critical scholarsfrom liberal scholars. If the above analysis holds true, then the strategic interventionsof critical scholars in legal and political debates will almost always take the form ofarguing these debates in their own terms, and simply picking the left side. us,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.

e question then becomes, in what sense can we really characterise such

interventions (and indeed such scholars) as critical? e practical consequence

transactions that are hidden behind invocations of this sort. See T.J. Clark, Image of the People:Gustave Courbet and the 1848 Revolution (ames and Hudson: London, 1973).

50. Martti Koskenniemi, Letter to the Editors of the Symposium, 93American Journal ofInternational Law (1999) 351-361 at 356.

51. Marks, State-Centrism supra note 22, at 347.52. See the various articles cited supranote 6.


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of understanding strategy in essentially tactical terms seems to mean always strug-

gling withinthe coordinates of the existing order. Given the exclusion of strategicconcerns as they have been traditionally understood, there is no practical accountfor how these coordinates will ever be transcended (or how the debate will bereconfigured). As such, we have a group of people struggling within liberalism, onliberal terms, who may or may not also have some critical understandings whichare never actualised in public interventions. We might ask then, apart from goodintentions (although liberals presumably have these as well) what differentiatesthese scholars from liberals? Because of course liberals too can sincerely believe inpolitical causes that are of the left. It seems therefore, that just as in practicalterms strategic essentialism collapses into essentialism, so too does strategicliberal legalism collapse into plain old liberal legalism.53

3.3. A Tale of Two Letters, or Taking eory Seriously

is tactical understanding of strategy, and its attendant consequences, is deeplybound up with a particular understanding of the relationship between theory andpractice.is is perhaps best encapsulated by Spivaks comment that [y]ou pickup the universal that will give you the power to fight against the other side, andwhat you are throwing away by doing that is your theoretical purity. 54In thisunderstanding, theory figures as an abstract non-practical concern that needsto be discarded in order to make political interventions. Hence, in the aboveaccount, theoretical concerns about the structure of legal argument need to bejettisoned in order to intervene in real life political argument.

e problem with such a position is that it operates with an overly rigid andultimately untenable distinction between theory and practice. An obvious criticismis that if ones theoretical position is such that it is entirely useless in providingan account of how to intervene in practical debates, perhaps what is needed isa new theory. One could, however, be even more radical in this criticism, and

53. Again, whilst the scholars around the We are Teachers of International Law letter are taken asexemplary, the trend of critical scholars functionally reproducing liberalism in their argumentscan be found across the board. For instance, Paavo Kotiaho has forcefully argued that MarttiKoskenniemis (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, whichis stillembedded 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 internationallawyers, practicing within the status quo of the traditional framework of internationallegal 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 expenseof 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.

54. Spivak, Post Colonial Critic, supra note 2 at 12.


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point out that there cannot be any practice without theory. Gramsci argues that

everyone is a philosopher because every action they take presupposes a specificconception of the world,55the only questions then become the degree to whichthis philosophy is explicit, and how coherent it is. What this points to is thefact that every practical action is necessarily rooted in an understanding of theworld, and the place of the action within it. us, it is not the case that whenone makes an intervention one is throwing away ones theoretical purity, butrather that there must be some othertheoretical conception that is underlyingones action.is other conception may in fact contradict the stated theoreticalposition that is being thrown away.

e importance of this is that it undermines somewhat the claim that goodintentions will be enough to count in differentiating critical scholarship from

liberal legalism. More importantly, it points us to the fact that if theory is tobe taken at all seriously, there must be a sense in which it is practically enacted.However, the collapsing of prudence into tactical considerations precisely deniesthis. e rigid distinction between theory and practice is both a cause and aconsequence of the failure to specify the distinction between strategy and tactics.An important part of any understanding of strategy, therefore, involves workingout how to enact the theoretical position one claims to hold to in practical andpolitical action.

At a basic level, what might a more strategic intervention look like? ChinaMiville quotes David Kennedy to the effect that an alternative intervention mightinvolve saying international law doesnt know what its doing here folks.56Such

an approach does seem to take more seriously the strategic dimension of criticalscholarship, but how does this actually lookin practice? A useful example of analternative approach can be seen in comparing yet more letters to e Guard-ian, this time in reaction to Operation Cast Lead: Israels highly controversialintervention in Gaza.

e first letter57 signed by several critical legal scholars is analogous to Weare Teachers of International Law. Couched in liberal legal language, it talks invery abstract terms about possible violations of international humanitarian lawin the conflict, ultimately avoiding any broader political questions, such as thatof taking sides.58

55. Gramsci, Selections, supra note 14 at 323. Gramscis position is not one exclusive to the Marxisttradition, there are echoes of it in, for instance, Dworkins observation that jurisprudence (thatis to say the theory of law) is the general part of adjudication, silent prologue to any decisionat law (that is to say the practice of law), in Ronald Dworkin,Laws Empire(Hart Publishing:Oxford, 2006) at 90.

56. Miville, Between Equal Rights, supra note 25 at 300.57. UK must act to stop violations in Gaza,e Guardian, 14 January 2009. .58. e letter states, for instance As international lawyers, we remind the UK government that


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In contrast to this is the rather trenchant letter drafted by Petter Hallward and

Slavoj iek.59is letter, which was also signed by several of the signatories ofthe first letter, did take sides, arguing that [t]here is nothing symmetrical aboutthis war in terms of principles, tactics or consequences. Israel is responsible forlaunching 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 colonialoccupation, then we are obliged to take sides ... against Israel, and with the peopleof Gaza and the West Bank. International law did not feature heavily in thisletter, there were allusions to it via references to the 1967 borders and a refer-ence to the criminal use of force, but ultimately it seems to figure much moreas a rhetorical device, than as one around which the intervention was organised.

e obvious point is that the second letter in not organising the interventionaround international law, indeed only invoking it briefly and obliquely is ableto avoid the perils of reinforcing liberal legalism. Equally, it remains an interven-tion that is specifically targeted at a debate, putting forward a coherent position.e problem here though, is that precisely because of this, one is left wonderingwhat the precise role of the legalscholar would be here? Is it simply to counselagainstthe adoption of the tropes of liberal legalism in any intervention? Is itto adopt David Kennedys route, or to use the event to point international lawscomplicity in the problems so identified?

It is as a result of this very real dilemma that many scholars turn to a purelytactical understanding of legal struggle. Whilst We are Teachers may be the most

sophisticated articulation of this position, it is one that resurfaces again and againin critical scholarship. Many lengthier works follow a similar pattern. For the vastmajority of the piece there will be a historical and/or theoretical examination ofthe ways in which international law has been deeply complicit with oppression,exploitation and domination. Yet in the final part, there will be a paragraph tothe effect that notwithstanding the previous critique it is impossible to giveup on international law. is does not usually make explicit reference to theprevious theoretical critique, but rather argues that since international law is the

it has a duty under international law to exert its influence to stop violations of internationalhumanitarian law in the current conflict between Israel and Hamas. A fundamental principleof international humanitarian law is that the parties to a conflict must distinguish betweencivilians and those who participate directly in hostilities. Attacks deliberately aimed at thecivilian population and civilian objects, by any means, are prohibited, as are attacks that do notdiscriminate between civilians and combatants, or which are likely to cause harm to civiliansthat is excessive when compared to the military advantage sought by the attack.ere is verylittle consideration as to whether either side may bear more political responsibility for theproblems of the conflict, or of the broader economic and political logics at play.

59. Growing outrage at the killings in Gaza,e Guardian, 16 January 2009. .


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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 ird World cannot abandon internationallaw because law now plays such a vital role in the public realm and in the in-terpretation of virtually all international events. It is through the vocabulary ofinternational law, concepts of self-defence, human rights and humanitarianintervention that issues of cause, responsibility and fault are being discussed andanalysed, and interpretations of these doctrines which reproduce imperial rela-tions must be contested.60

is particular move, although not necessarily couched in terms of strategyand tactics, nonetheless reproduces the basic structure criticised above. In it,prudence is once again confined to the short term, conjunctural sense. Yet onecannot simply brush aside such a line of argument, especially when expressed inthese terms. If the alternative to the strategic use of liberal legalism is abandon-ing international law (or some other form of legal nihilism) then liberal legalismwould seem to be only real option for those actually engaging in political struggle.

e problem is that this counterposition of liberal legalism as against legalnihilism ultimately reproduces the rigid theory/practice divide outlined above, andessentially insists that strategy and tactics exist to the rigid exclusion of one andother.e particular form that this separation takes associating the traditionalmeaning of strategy with theory and principle, and tactics with practice andprudence means that strategic concerns simply disappear from the picture.61

In contrast to this would be a position that understood that theory is neversimply an abstract consideration, but one which is always active in practice,

60. Anghie, Imperialism, supra note 22 at 318. Bhupinder Chimni argues similarly: On theother hand, IIs [international institutions] have undergone a quantitative and qualitativetransformation in the past two decades. e essence of these changes has been the use ofIIs to realize the interests of a TCC [transnational capitalist class]. IIs have come to play acentral, though retrograde, role so far as third world states and peoples are concerned. Indeeda nascent global state has emerged under the influence of the TCC and powerful Northernstates. Under these circumstances, to suggest that renewalists are condemned to the role ofSisyphus is perhaps to disarm third world peoples against the most significant contemporaryembodiments of imperialist policies and strategies. International Institutions Today: AnImperial Global State in the Making, 15 European Journal of International Law(2004) 1-37at 30. A similar argument can be made with respect to the articles cited supranote 23, which in arguing for actors to alter their bargaining power through altering legal rules presupposethe continued existence in which the bargaining takes place.

61. Clausewitz 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, thatmuch more strength of will is required to make an important decision in strategy than intactics. In the latter we are carried away by the moment: a commander feels himself bornealong by a powerful current, against which he dare not contend without the most destructiveconsequences. Clausewitz, War, Politics and Power, supra note 9, at 173.


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whether implicitly or explicitly. From this would also flow the idea that long term,

structural considerations are not to be understood in opposition to prudencebut rather as specific structural and temporal articulations of prudence. On thisreading, the opposition would not be between using the law (as a liberal) orabandoning it (as a nihilist). Rather the question is on what terms is it possible touse the law withoutfatally undermining longer term, structural considerations.62

is is the understanding that has driven work from within the Marxist tradi-tion 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 traditionthat has systematically sought to understand law.63Although there is some truthto this, there is at the same time a small but rich literature on the topic. is is thecase both in general jurisprudential terms,64and more specifically particularlyover the past decade in terms of international law.65Yet even if we exclude thosewritings that explicitly address law, the question of the relationship between lawand revolutionary politics has been central to how Marxists have thought aboutpolitical action.

e rubric under which this question has played out is usually that of thedebates around reform and revolution. e central problem of these debates to

62. 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 mainstreamhas attacked the nihilist neocons for gravely injuring international law, and thus stressedneoconservative power; and those nihilists in turn have complimented international law (andby implication its advocates) by denouncing it as a mortal threat. Against this, he arguesthat neo-conservatives are not simply nihilists, but have a nuanced approach to law, and thatliberal legalism is intensely bound up with imperialism.e point is that the false oppositionbetween liberalism and nihilism is an ideological symptom of the system itself. See ChinaMiville, Multilateralism as Terror: International Law, Haiti and Imperialism, 19FinnishYearbook of International Law (2008) 63-93 at 72.

63. See Bernard Edelman, Ownership of the Image: Elements for a Marxist eory of Law(Routledgeand Kegan Paul: London, 1979) at 2126.

64. ere are a few Marxist works dealing with general jurisprudence and the list would include:Evgeny Pashukanis, Law and Marxism: A Generaleory(Ink Links: London, 1978); AnthonyChase, Law and History(e New Press: New York, 1997); Karl Renner, e Institutions ofPrivate Law and their Social Functions (Routledge Kegan & Paul: London, 1949) and OlufemiTaiwo, Legal Naturalism: A Marxist eory of Law(Cornell University Press, 1996).

65. See, for example, Susan Marks (ed.), International Law on the Left: Revisiting Marxist Legacies(Cambridge University Press, 2008); Miville, Between Equal Rights, supra note 25; BillBowring,e Degradation of the International Legal Order? e Rehabilitation of Law and thePossibility of Politics (Routledge-Cavendish: London, 2008); Rasulov, e Nameless Raptureof the Struggle, supranote 7; zsu, e Question of Form, supra note 7; Sonja Buckel and

Andreas Fischer-Lescano, Gramsci Reconsidered: Hegemony in Global Law, 22 LeidenJournal of International Law(2009) 437-454.


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what degree should revolutionary forces engage in action that is within the coor-

dinates of the existing order is one that obviously has a great deal of importanceto this argument. Indeed, as argued above, the distinction between strategy andtactics 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 revolutionand tactics for reform: rather it is the case that the Marxist tradition has usedthe distinction between strategy and tactics to navigate the problem of reformand revolution in a nuanced way. It should be noted that whilst these authorsall understand themselves as working from within the materialist tradition, theinsights they provide can also inform the idealist strategy outlined above.

4.1. Work, Wages and Revolution: Marxs Account of the Working

DayMarxs oeuvre is replete with considerations of the role that law could play inrevolutionary politics. We can see this in his somewhat fragmented considerationsof what the dictatorship of the proletariat might look like66and in the variousprogrammatic statements that he proposed or adhered to.67However, for thepurposes of this argument, what is most fruitful is Marxs analysis of the role oflaw in struggles around wages and the length of the working day.

Marx understands the relationship between capital and labour to be centralto the capitalist system. In basic terms, the capitalist is able to exploit his labour-ers because the value of the commodities that they produce is more than that ofthe value of their labour power.e capitalist pays the worker a wage that is lessthan the value of the commodity he goes onto sell and the difference betweenthese two figures is surplus value. Assuming the fixed value of a given commod-ity (which is determined at a social level), there are two ways in which the rateof surplus value might be increased: firstly, wages can be reduced and secondlyworkers can be made to produce more in a working day (either by making themwork longer, or work harder within a given day).

But this applies conversely too, and the balance of surplus value can be tippedin favour of the working class by increasing their wages, or limiting the workingday. us, the questions of wages and the working day become objects of greatcontention under capitalism. ese struggles form the basic fabric of the classstruggle in its most spontaneous and elementary sense in capitalist society.esestruggles are also always articulated in some legal framework: be it the employment

66. See Karl Marx, e Critique of the Gotha Programme, in Robert Tucker (ed.),e Marx-EngelsReader (W.W. Norton: New York, 1978) 525-541 and Karl Marx, e Civil War in France, inRobert Tucker (ed.), e Marx-Engels Reader (W.W. Norton: New York, 1978) 618-652.

67. e most obvious example here would be (written with Engels) the Manifesto of theCommunist Party, in Robert Tucker (ed.), e Marx-Engels Reader (W.W. Norton: New

York, 1978) 469-501, especially at 490-491.


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contract or through direct legislation. e question that Marx had was what to

make of the significance of such struggles. In Value, Price and Profithe arguedthat these struggles would have to be treated in a highly cautionary way, sincethey necessarily presupposed the existence of the capitalist system, and simplyinvolved relative distributional changes:

[T]he working class ought not to exaggerate to themselves the ultimate work-ing of these everyday struggles. ey ought not to forget that they are fightingwith effects, but not with the causes of those effects; that they are retarding thedownward movement, but not changing its direction; that they are applyingpalliatives, not curing the malady. ey ought, therefore, not to be exclusivelyabsorbed in these unavoidable guerrilla fights incessantly springing up from thenever ceasing encroachments of capital or changes of the market.ey ought to

understand that, with all the miseries it imposes upon them, the present systemsimultaneously engenders the material conditionsand the social formsnecessaryfor an economical reconstruction of society. Instead of the conservativemotto:A fair days wage for a fair days work! they ought to inscribe on their banner therevolutionarywatchword: Abolition of the wages system!68

Marxs critique dovetails precisely with that outlined above. Fixation on theday-to-day struggles, on their own terms, ends up precluding the transcendenceof 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 theunavoidable 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 work-ing class] would certainly disqualify themselves for the initiating of any largermovement.69However, in this work he has not quite yet managed to say howthese might be articulated together.

It is in this respect that Marxs seminal discussion of the regulation of thelength of the working day in Capitalbecomes relevant. Here Marx is much morepositive about the potential of the everyday struggle, arguing:

For protection against the serpent of their agonies, the labourers must put theirheads together, and, as a class, compel the passing of a law, an all-powerful socialbarrier that shall prevent the very workers from selling, by voluntary contract with

capital, themselves and their families into slavery and death. In place of the pomp-ous catalogue of the inalienable rights of man comes the modest Magna Charta

68. Karl Marx, Wage Labour and Capital and Value Price and Profit(International Publishers: NewYork, 2006) at 61.

69. Ibid.


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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.72Whilst there is no rigid distinction between reform and revolution; in or-

der for the social democratic movement to not simply collapse into bourgeoisradicalism, it was necessary that the tacticalstruggles for reform be pursued notin their own sake, but precisely in order to build up this movement. us, theparticular 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 thedifference between a reformist and a revolutionary is not necessarily that you doradical things all the time, but it is that at a given moment, you may all do thesame thing, i.e. demand living wage, but you do it with a different objective, andthat is as a long-term transition.73

4.3. Towards Revolutionary Realpolitik: Lukcs Leninism

e most comprehensive formulation of this line of thinking can be found in thework of Georg Lukcs. Lukcs argues that the position and significance of tacticsin the field of political action differ greatly in accordance with the structure andhistoric-philosophical role peculiar to those parties and classes.74For Lukcs, thereis a fundamental difference between revolutionary classes and other classes, andthis difference lies in their ultimate objective. Essentially, this would correspondto the distinction between critical and liberal positions; the latters ultimate objec-tive is one that is a moment within the given social reality, whereas in the caseof the former this objective transcends it.75In the case of the liberal approach,the existing (legal) order is a given principle which ... determines the scope ofany action, in the case of the critical or radical approach the given order is simplysomething to be taken into account for reasons of expediency.

We can understand this in terms of strategy and tactics. Lukcs argumentmeans that liberals do not have to worry about strategic concerns in the same waythat critics do. Instead, their concerns are purely tactical, since they presupposethe existing order in all of their actions. In contradiction to this, the only thingthat distinguishesthe critical position is precisely that its ultimate objective is totranscend the existing order. In order to remain critical, it is necessary that thisultimate objective is immanent in everyday acts. As such tactical interventionsmust be shaped by this strategic orientation:

is contrast helps greatly to elucidate the tactics of the revolutionary classes andparties: their tactics are not determined by short-term immediately attainable

72. Ibid., at 42.73. A Conversation with David Harvey, 5Logos: A Journal of Modern Society and Culture (2006)

.74. Georg Lukcs, Political Writings 1919-1929 (New Left Books: London, 1972) at 3.75. Ibid., at 3.


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advantages; indeed, they must sometimes reject such advantages as endangering

what is truly important, the ultimate objective. But since the ultimate objectivehas been categorized, not as Utopia, but as reality which has to be achieved, positingit above and beyond the immediate advantage does not mean abstracting fromreality or attempting to impose certain ideals on reality, but rather it entails theknowledge and transformation into action of those forces already at work withinsocial reality those forces, that is, which are directed towards the realization ofthe ultimate objective. Without this knowledge, the tactics of every revolutionaryclass or party will vacillate aimlessly between a Realpolitik devoid of ideals and anideology without real content.76

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 whichserves as a legitimatingfactor (of good intentions) but is ultimately withoutcontent. What he suggests is that the way forward is to understand the neces-sity to frame tactics in terms of strategy. is double articulation: understandingthat strategic concerns are absolutely vital, and then they can only be expressedthrough tactical interventions, is what Lukcs calls revolutionary realpolitik.77At the very least, this will entail not adopting those methods of interveningin the conjuncture which whilst successful on their own terms underminethe ultimate objective. Aside from this merely negative relation, Lukcs arguesthat every intervention in the concrete situation must be related to a generallycorrect appreciation of the whole historical process.78Concretely, this would

entail shifting the priority in a given intervention, not just to win on its ownterms, but to use that struggle to advance the ultimate objective, through theconstruction of a movement, training its militants in struggle, connecting theparty to the class etc.79

76. Ibid., at 4.77. Georg Lukcs, Lenin: A Study on the Unity of his ought (New Left Books: London, 1970)

at 72-88.78. Ibid., at 83.79. e 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 discussthis in any detail. One seemingly innocuous example though, would be that of Lenins writingon the development of a newspaper. Whilst some might simply see a newspaper in terms ofpropagandising, Lenin argued it would serve as a collective organiser, since the mere technicaltask of regularly supplying the newspaper with copy and of promoting regular distribution willnecessitate a network of local agents of the united party, who will maintain constant contactwith one another, know the general state of affairs, get accustomed to performing regularlytheir detailed functions in the All-Russian work, and test their strength in the organisationof various revolutionary actions. is network of agents will form the skeleton of ... [anorganisation] that is sufficiently large to embrace the whole country; sufficiently broad andmany-sided to effect a strict and detailed division of labour; sufficiently w

robert knox, strategy and tactics, fybil 2010

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