Review Articles / Historical Materialism 18 (2010) 193–207 193

The Degradation of the International Legal Order? The Rehabilitation of Law and the
Possibility of Politics, Bill Bowring, Routledge-Cavendish, 2008

Abstract
Bill Bowring’s book attempts to argue for a Marxist account of international law that embraces
it as a tool for progressive politics and revolutionary change. He argues it is necessary to give a
substantive account of both, locating them in the real struggles of the oppressed. Specifically, he
locates human rights in the three great revolutions – the French, the Russian and the
anticolonial. However, this revolutionary heritage has been ‘degraded’ by recent events. As such,
it is necessary to adopt ‘revolutionary conservatism’, invoking international law’s origins against
its current degradation. This review argues that, owing to international law’s indeterminacy,
Bowring’s project is susceptible to imperial appropriation. This means, however, that Bowring
cannot give an account of why we should use international law. It then argues that Bowring’s
account of Pashukanis is wrong, and that Pashukanis’s work can better make sense of Bowring’s
insights and international law more generally.

Keywords
Bowring, Pashukanis, international law

The current conjuncture has seen international law assume an increasingly important role
in world-events. International law has been at the centre of NATO’s ‘humanitarian
intervention’ in Kosovo, the war in Afghanistan and the war on terror more generally and
was deeply embroiled in the controversy surrounding the 2003 war in Iraq. More recently,
questions of international law have been raised by the Georgia crisis of 2008 and the
Israeli assault on Gaza.
The Left has also begun to make increasing use of legal arguments in its political
mobilisations. Thus, the above events have been contested as illegal, or as breaching
various international legal norms. Particularly important in this respect has been the
discourse of human rights, which has been used both as a defence against imperial actions
or encroachments on civil and political liberties, and in articulating a positive vision for
social transformation.1 This backdrop has been complemented by a resurgence in Marxist
engagements with international law,2 with many of them dealing directly with the
question of international law’s progressive potential. Bill Bowring’s book The Degradation
of the International Order represents an important contribution to this resurgence and
sheds a good deal of light on our current conjuncture.
Bowring is a scholar, theorist and activist-lawyer. A good deal of his legal practice – as
detailed in the book – has been centred on representing Chechens against the Russian
Federation. Bowring’s academic work has tended to focus on legal analysis on questions of
human and minority-rights,3 and aside from a few articles4 (which prefigure this book to a
large extent), this is Bowring’s first substantive work of theory.

1. Harvey 2008.
2. For example: Miéville 2005, Marks 2008, Buckel and Fischer-Lescano 2009.
3. Bowring 2002a.
4. Bowring 1996, 2002b, 2006.
© Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/156920610X489199
194 Review Articles / Historical Materialism 18 (2010) 193–207

Politics, degradation and rehabilitation

The first point to note is – somewhat tellingly – located in the conclusion of the book,
namely that the book is not a systematic or methodical exposition of Bowring’s views (p.
207). This is reflected in the organisation of the chapters of the books, which is quite
haphazard – with the more theoretical work sandwiched between the more practical
accounts. This being said, the book does have a guiding argument running through it.
Thus, this review will begin with Bowring’s theoretical foundations, before examining how
these are borne out in the more concrete chapters.
Bowring situates himself in the philosophical tradition of Aristotle, Spinoza, Hegel and
Marx (p. 207). His Marxism is deeply influenced by the early critical realism of Roy
Bhaskar and the value-form approach to Marxism, exemplified in recent times by the
work of Christopher Arthur (p. 3). From this tradition Bowring takes the idea that:

[A]ll the material and technical economic process are accomplished within
definite historically specific social forms. Things, such commodities, are assigned
a social role as mediators of production relations. (p. 3.)

Bowring’s distinctive theoretical position is developed through a number of engagements

with contemporary theoretical work. He first tackles with the (perhaps oddly juxtaposed)
work of Susan Marks and Jürgen Habermas. Marks, who has developed a model of
ideology-critique in international law, takes ideology to refer to how ‘rhetorical and other
symbolic practices are deployed to sustain prevailing constellations of power’.5 Specifically,
Bowring takes from this the idea that ideology serves to naturalise the status quo and make
change seem impossible or irrational (p. 101). He uses this framework to analyse the
theoretical trajectory of Habermas, arguing his ‘work really amounts to a neo-Kantian
transcendental deduction of the conditions of necessity of the contemporary German
constitutional state’ (p. 105).
But, for Bowring, ideology-critique cannot move from immanent critique to reasons for
action (p. 108). In order to do this, it is necessary to adopt a Marxist model of science
(which, for Bowring, is also a realist model of science) in which the contradictions
uncovered through immanent critique can lead to discoveries about reality. Here, he turns
to Adorno, arguing that the key to dialectical thinking is understanding that concepts do
not fully subsume reality and, as such, suggests that we must learn to think substantively.
For Bowring, this is the exact opposite of Habermas, who views rights as ‘deracinated
empty forms’ (p. 109) and, against this, it is necessary to understand that human rights
‘are the subjects and objects of real struggles in the real world’ (p. 111).
This attempt to articulate a ‘substantive account’ of human rights frames Bowring’s
arguments. He argues that a case can be made for ‘an Aristotelian, substantive account of
human rights; a case that is thoroughly historicised, but restores human rights to their
proper status as always scandalous, the product of, and constantly reanimated by, human
struggle’ (p. 112). Having established this basic position, Bowring further engages with
the work of contemporary theorists. Central to this endeavour is the work of Slavoj Žižek
and Alain Badiou.

5. Marks 2008b, p. 208.

 Review Articles / Historical Materialism 18 (2010) 193–207 195

Badiou argues that the rise of human-rights discourse is a symptom of the collapse of
revolutionary Marxism. Schematically, the Event – a kind of unpredictable rupture with
the status quo – is the key category in Badiou’s conception of history. The Event is one
dimension of the truth-process, which is composed of the Event, fidelity (the process of
the continuing break the Event represents) and truth (which is what fidelity gathers and
produces). For Badiou, human rights serve as a block on the Event, as they confirm the
absence of any alternative project. Against this, Bowring poses his alternative, substantive
question, and asks ‘whether the material effects of the theory and practice of ‘human
rights’ could . . . have a political content, part of the “fidelity” to the event’ (p. 122).
The idea that human rights can form a kind of ‘fidelity’ to the Event is crucial for
Bowring. Typically, the human-rights corpus is divided into three generations of rights.
The first generation is concerned with individual civil and political liberties, the second
with social and economic rights and the third with peoples’ rights, including the right to
self-determination and the right to development. Bowring’s contribution lies in
radicalising this stale schema, arguing that the content of these three generations can be
traced back to the great revolutions – the French Revolution, the Bolshevik Revolution
and the struggle for decolonisation:

For surely ‘human rights’ were integral to the ‘events’ whose honour Badiou
defends. One of the most revolutionary products of the French Revolution,
recognised as such with horror by Burke and Bentham among others, was the
Declaration of Rights of Man and Citizen. Lenin in 1917 not only proclaimed
the ‘rights of nations to self-determination’, which became the battle-cry of anti-
colonial struggles, but also the rights of working people which have since
become enshrined as social and economic rights. (p. 129.)

Bowring’s vision of the political is a Žižekian one, which refuses to see politics as a series
of a strategic-pragmatic interventions, because ‘[i]n a radical political act, the opposition
between a “crazy” destructive gesture and a strategic political decision breaks down’.6 The
crucial fact for Bowring is that the political content of human rights lies ‘precisely [in]
those scandalous ruptures with pre-existing modes of social existence which have arisen in
the context of great political events’ and as such ‘are a significant part of the possibility of
politics’ (p. 6). Whilst rights may become mired in proceduralism and technical formalism,
they only regain their power when they are re-appropriated in the political struggle of the
oppressed (p. 124).
This political and understanding of human rights and international law more generally,
is the central plank in Bowring’s argument. He uses it to launch an excoriating but
respectful attack on the work of postmodern legal theorists, particularly that of Costas
Douzinas (Chapter 8). Bowring carefully flags up Douzinas’s factual and empirical errors,
as well as the contradictory arguments contains within his books (pp. 136–8). Bowring’s
most important critique is asserted against Douzinas’s understanding of human rights as a
future-oriented aspiration to utopia. Against this, Bowring tersely notes:

6. Žižek 2004, p. 511.

196 Review Articles / Historical Materialism 18 (2010) 193–207

[T]his position is implausible in the face of real struggles for human rights in
the face of cruel and undiminishing oppression at the hands of repressive
regimes and in the face of ‘globalisation’. To fight to prevent and seek redress for
violations of human rights is not to aspire to utopia. It is to struggle to provide
the conditions here and now to become more human. Douzinas has arrived at a
blind alley. (p. 140.)

It is only against this philosophical background that Bowring’s practical commitments can
be understood. Bowring’s first chapter – focusing on the history of self-determination – is
an attempt to show how the political content of human rights was played out historically.
Here, Bowring’s argument concentrates on the complex role of the Soviet Union in
supporting national liberation. He argues that self-determination was only able to achieve
recognition as a vitally important norm in international law through the political struggles
of the Third World, which the Soviet Union was compelled to support (p. 29).
Bowring contrasts his account with those of China Miéville and Evgeny Pashukanis.
Bowring first rehearses the usual critiques of Pashukanis’s ‘commodity-form’ theory of
law – namely that it cannot account for precapitalist law and that his account of a ‘static’
legal form unduly ignores production-relations (pp. 23–5).7 But Bowring’s most damning
criticism is that both Pashukanis and Miéville are unable to grasp the significance of self-
determination owing to their theoretical positions. Briefly, Miéville argues that, whilst
self-determination and decolonisation may have represented an important change in the
content of international law, they nonetheless a continuation in the universalisation of the
form of international law.8 This is because self-determination allowed colonial peoples to
constitute independent states, which, Miéville argues, are the legal subjects that are
systematically thrown up by international commodity-exchange.9 Thus, Miéville argues
that ‘the juridical form of independent sovereignty was one which imperialism itself
tended to universalise’.10
But Bowring argues that this theoretical position misses out on the vital political
content of the right to self-determination. Thus, it was only through the active struggle of
the Soviet Union and the Third World that the right to self-determination was able to
become the immediate right to independence for the colonies, as against the wishes of the
imperialist powers (p. 30). This spilled over into the broader UN system, which was
transformed by the entrance of the Third World into its ranks, as such ‘[i]t is no accident
that the principles of state sovereignty and non-interference, brought to life by the hard-
won legal right of peoples to self-determination, became the main source of legitimacy
for the United Nations as a focus for the aspirations of new states and aspiring peoples’
(p. 43).
However, for Bowring, these principles have – over the past decade – undergone a
process of ‘degradation’. Law and power have entered into a vampire-bride relationship in
three acts (p. 41), of consummation, seduction and rejection. Thus, Bowring argues, lured
by the promise of political effectivity, international law lent itself to power-politics – made

7. There are several works that attempt to refute these claims, for the most effective see
Miéville 2005, pp. 88–96 and pp. 101–13.
8. Miéville 2005, p. 165.
9. Miéville 2005, p. 142.
10. Miéville 2005, p. 260.
 Review Articles / Historical Materialism 18 (2010) 193–207 197

manifest in the first Gulf War. International law then allowed itself to be seduced by the
‘humanitarian’ arguments advanced in the build up to the NATO bombing of Kosovo.
Here, international lawyers either lent their support to this operation, arguing that –
against the restrictive readings of the use of violence established in the previous period – a
norm of unilateral humanitarian intervention had arisen, or they wrung their hands in
impotence, arguing that the actions were ‘illegal but legitimate’. Finally, in the war against
Afghanistan, international law was rejected altogether, such that Jamie Shea the NATO
Director of Information argued NATO’s actions were framed by ethics, not law.
Against this ‘degradation’, Bowring proposes a strategy of ‘revolutionary conservatism’.
Given that international law has been ‘dragged through the mire’ (p. 59) and, given the
revolutionary origin of human-rights law, conserving their ‘traditional’ content (particularly
self-determination and the strong bias against non-intervention) takes on a revolutionary
function. In this way, ‘law and power can once again be brought into a relationship in
which there is a perspective for justice’ (p. 41). For Bowring, this is especially pertinent in
the light of the 2003 invasion of Iraq which has given ‘[s]tate sovereignty, the prohibition
of the use of armed force except in self-defence or with the express authorisation of the
Security Council, the rights of peoples to self-determination . . . new relevance and . . .
substance’ (p. 61). The remainder of the book is concerned with interrogating a number
of practical legal issues, illustrating Bowring’s point as to the possibilities of international
law. This is particularly the case with a number of Chechen cases in which Bowring
himself participated.
Despite its idiosyncratic ordering, Bowring’s book is lucid and clear. Written in a
concise, accessible style, Bowring is able to convey complex theoretical ideas without
doing violence to them. Occasionally, the narrative of the book is slightly overwhelmed by
the variety of different theoretical reference-points but – particularly in the case of Badiou
and Žižek – these are generally used to good effect. Indeed, one of the very positive things
about the book is the way that it traverses the discourses of international-law practitioner
and critical theorist. This combination, and the theme of degradation, lends the work a
practical and strategic immediacy which makes it a very important work. However, whilst
the book is well-reasoned, it suffers from some substantive problems which cast doubt
upon its argument.

Indeterminacy
A notable absence from the book is a discussion of legal indeterminacy. The ‘indeterminacy
thesis’ is one that is shared by a good number of critical legal theories. Essentially, it holds
that – in any given case – legal argument can serve to justify any outcome. This is because,
for every legal argument, there is a counter-argument. In international law, it is generally
argued – following Koskenniemi – that the law constantly oscillates between the two
mutually opposed poles of sovereignty and world-order. As such, every legal argument can
be phrased in an ascending manner (proceeding from state-interests) or a descending
manner (proceeding from the interests of the ‘international community’). Since these two
positions are ‘both exhaustive and mutually exclusive’,11 neither can be preferred, and thus

11. Koskenniemi 2005, p. 59.

198 Review Articles / Historical Materialism 18 (2010) 193–207

equally compelling (and equally legal) but completely opposed arguments are constantly
produced.
One important consequence of this is that all arguments are – in the abstract – equally
valid, with each having a claim to be the ‘correct’ legal argument. Bowring does not appear
to ascribe to this, arguing that the Iraq War was ‘blatantly unlawful’ (p. 1), despite the fact
that several serious arguments had been advanced for its legality, all of which remained
within the bounds of previous argument.12 Whilst it is, of course, possible to quibble with
the indeterminacy-thesis, Bowring never addresses this head on, instead simply proceeding
with the argument that positions were clearly unlawful. But – in the absence of a specific
discussion of indeterminacy – this is extremely problematic, since many imperial claims
are couched in sophisticated legal terms.13
This is especially clear in Bowring’s attempt to articulate a strategy of ‘revolutionary
conservatism’. In so doing, Bowring treats the human-rights corpus (and as such the three
‘great revolutions’) as if they fit seamlessly together. Thus, for Bowring, the best way to
defend the honour of the ‘great revolutions’ (p. 208) is to uphold the principles of
the international human-rights movement. Yet, as the indeterminacy-thesis indicates, it
cannot be assumed that these ‘revolutions’ and the legal principles they spawned, simply
cohere. Various combinations of these rights can be articulated, all of which cannot simply
be dismissed as legally ‘incorrect’, or cynical ‘manipulation’.14
This would lead to the recognition that the current conjuncture is not simply the
degradation of international law. Rather, it represents one particular attempt to articulate a
coherent position out of various conflicting ‘revolutions’. This is perhaps best seen in
Reisman’s excellent attempt to argue for the legality of the war in Kosovo. At no point
does Reisman argue that sovereign independence is unimportant, or that it has to be
overridden. Rather, he argues that, when the concept of sovereignty is combined with the
developments in international human-rights law, the meaning of sovereignty is changed. In
concrete terms, Reisman argues that Article 2(4) of the United Nations, which states ‘[a]ll
members shall refrain . . . from the threat of use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the Purposes
of the United Nations’ is not breached by humanitarian intervention. This is because:

Article 2(4) was changed by the contraction of article 2(7), which, by effectively
eliminating for serious human rights violations the defense of domestic
jurisdiction, removed from the sphere of the ‘political independence’ of a state

12. It would be impossible to rehearse the debates surrounding the legality of the Iraq War
here, but a few points will suffice. Firstly, one of the most important arguments was based on
an ‘implied Security Council resolution’, whilst this is oft criticised (and Bowring is at pains to
dismiss such arguments), it does have a long history, see Lobel and Ratner 1999 for a critical
history. Secondly, even the more precarious claim to pre-emptive self-defence has historical
resonance – for a rather cynical account see Sofaer 2003.
13. See Miéville 2009 for a brilliant account of neoconservative deployment of international
law in defence of imperial actions.
14. Although this raises another important point, ‘manipulation’ of the law happens all the
time. One might even say that the very function of the lawyer is the ‘manipulation’ of the law so
as to serve her client. Given the regularity with this manipulation occurs, it would seem unwise
to treat it as ‘not legal’.
 Review Articles / Historical Materialism 18 (2010) 193–207 199

the right to violate in grave fashion and with impunity the human rights of its
inhabitants.15

Whilst one might disagree with the political consequences of Reisman’s argument, it is
difficult to deny that it is a legitimately legal one, and one that is seeking a way to combine
the various generations of rights. What this suggests is that, even if the human-rights
discourse has an origin in historically progressive events, this emancipatory past will not
necessarily be realised in international law’s contemporary usage.

The imperial uses of international law

It is not simply the case that Bowring underestimates the degree to which rival positions
are genuine attempts at coherence and, as such, all equally ‘legal’. It is also the case that
the tenets of Bowring’s own position – revolutionary conservatism – have, at various
times, been used to legitimate and promote imperial actions on the world-stage. A
particularly useful example in this respect is self-determination. Whilst Bowring is
certainly right to note the important role self-determination played in anticolonial
struggle, he is curiously silent as to its invocation by various imperialist powers.
The most obvious example of this in recent times was the Russian invasion of Georgia
under the rationale (amongst others) of defending the right to self-determination of
Abkhazia’s ethnic Russians. This itself is widely viewed as a response to Kosovo’s unilateral
declaration (and the attendant support of various world-powers) of independence, itself
justified in terms of self-determination.16
One can find further examples of this in Bolivia, where those rich regions led by the
Right threatened to secede17 and in claims of Israel’s defenders that its actions can be
justified owing to the need for the self-determination of the Jewish people.18 As Tony Cliff
noted, Israel frequently appealed to the idea that it was a ‘loyal little Jewish Ulster’ in
order to gain support.19 Indeed, the right of humanitarian intervention which Bowring
decries has its modern genesis in the right of ‘pro-democratic intervention’ articulated
during the Cold War, which was itself rooted in arguments from self-determination.20
Early on in the book, Bowring attempts to cut this off, arguing that:

Intervention or interference, however they are characterised, and in the name of

whichever honourable motives, have never been – and most certainly are not
now – part of the struggle of individuals or collectivities. (p. 6.)

But this argument simply cannot work for Bowring. Firstly, because later in the book he
positively notes that ‘[t]he USSR . . . found itself obliged to give very considerable material
support to self-determination struggles’ (p. 38), this of course included military provision,

15. Reisman 1999, p. 861.

16. See, for example, Hehir 2009.
17. Painter 2008.
18. See, for example, Dershowitz 2003.
19. Cliff 1998.
20. Reisman 1984.
200 Review Articles / Historical Materialism 18 (2010) 193–207

which must be counted as a form of ‘intervention or interference’. More tellingly, various

countries that formed part of the Third-World movement were enthusiastic advocates of
military intervention in the name of anticolonialism and self-determination.
This can be seen particularly clearly in the case of Goa, which India invaded to liberate
from Portugal’s colonial occupation. Here, Indian UN ambassador Jha argued that
Article 2(4) of the Charter would not be breached by its invasion of Goa, since the wave
of decolonisation had transformed its ambit, such that anticolonial violence could not be
counted as aggression.21 This argument, both in terms of its content and structure is
startlingly similar to Reisman’s. As one can see, there is a direct lineage between the Third
World’s invocation of self-determination and the imperialist invocation of ‘humanitarian
intervention’.22 It seems difficult to argue that these invocations can be meaningfully
differentiated in law. Whilst their political content could not be more opposed, the
abstract nature of legal claims would compel a principled adherent to the law to support
both (or at least refrain from criticising the latter on legal grounds).
It seems especially difficult for Bowring to escape these objections. Whilst it is clear that
international law’s content has – to a large degree – been shaped through struggle ‘from
below’, it is also clear that it has no ‘essential’ content apart from the ways it is articulated
in concrete circumstances. To a degree, Bowring recognises this, arguing that, whilst the
content of international law might be ‘degraded’ by those in power, it is necessary that
they be ‘re-appropriated in struggle’ (p. 143). However, the problem with this position is
that Bowring’s particular vision of how these rights should be re-appropriated is one which
is itself easily susceptible to imperialist appropriation.
At this point, it is perhaps useful to turn to Susan Marks’s work on ideology-critique.
Marks argues that the role of the ideology-critic in international law is to use its
indeterminacy to find ‘counter-systemic logics’23 and deploy them against the existing
order. However, since there is no world ‘in which meaning no longer serves power’,24 we
must place any position we do take under constant scrutiny, since it might become a
‘vehicle for closing off emancipatory potentials’.25 It could thus be argued that the position
of revolutionary conservatism can still be upheld, provided we understand, and guard
against, its susceptibility to appropriation.
But the problem is that this is precisely what Bowring has tried to escape. If we admit
that international law has no inherently emancipatory potential, and that seemingly
emancipatory positions within it can always be used to justify imperialist actions, the
question becomes why should we use international law? The immediate response – for
lawyers – is evidently, ‘because it’s what we know’, but this does not provide an argument
as to why it ought to form a part of revolutionary strategy more generally. It is at this
point that the lack of what one might call a jurisprudential standpoint – that is to say one
that reflects on what law is – becomes highly problematic.

21. Berman 2005, pp. 103–5.

22. In this regard it is particularly telling that one frequently cited example of humanitarian
intervention is India’s 1971 invasion of Bangladesh, see Franck 1973.
23. Marks 2007, p. 114.
24. Marks 2007, p. 118.
25. Ibid.
 Review Articles / Historical Materialism 18 (2010) 193–207 201

The legal form

In his earlier work, Bowring argued that law has displaced religion in providing ‘the
remedies and safeguards which society craves in an ever more unpredictable human
environment’.26 Thus, even those who criticise the law invoke it, challenging it ‘to become
more just, more congruent with social needs’, asking it to act ‘as a shield against
oppression, or an instrument for social change’.27 This is reflected in various ‘pressure-
groups’ invoking the language of legal rights.28 Perhaps, then, Bowring could argue that
that we ought to invoke international law – even though it risks appropriation – because
of its resonance in contemporary society. But, of course, this seems rather question-
begging: surely, before we do this, it is necessary to enquire why it is that we live in a
society saturated with legal argument?
It is this question of why rights-discourse is so popular that leads us to the work of
Evgeny Pashukanis. Pashukanis’s explanation for this – briefly put – was that the ‘legal
form’ was a product of commodity-exchange.29 As such, a world which was saturated with
commodity-exchange (i.e. capitalism) was also one saturated with law, and one in which
legal argument would be especially compelling and in fact inevitable. In his earlier work,
Bowring seems to be – at least partially – in agreement with Pashukanis, arguing that ‘the
symbolic structure common to both economic and juridical “fetishism” is generalised
equivalence, which subjects individuals, abstractly and equally, to a kind of circulation,
whether of values or of obligations’.30 In The Degradation of the International Legal Order,
Bowring has moved away from this, consciously distinguishing himself from Pashukanis
and his contemporary proponent China Miéville. Exploring how Bowring opposes
Miéville and Pashukanis allows us to see some of the deeper limitations of his work.
As noted earlier, Bowring situates himself within the value-form approach to Marxism,
noting that:

[M]aterial and technical economic processes are accomplished within definite

historically specific social forms. Things, such as commodities, are assigned a
social role as mediators of production. (p. 3.)

This, according to Bowring, ‘is a very different approach to that of Pashukanis’ (p. 3).
Such an argument seems misplaced, especially given the fact that Chris Arthur, one of the
most important contemporary exponents of the value-form approach, has been very
positive about Pashukanis’s approach. In fact, his introduction to the 1977 edition of the
Law and Marxism: A General Theory,31 remains one of the best introductions to
Pashukanis’s work. Alone, of course, this shows very little, but a brief examination of
Pashukanis’s work would show it is very much in line with the tradition in which Bowring
situates himself.

26. Bowring 1996, p. 214.

27. Ibid.
28. Bowring 1996, p. 215.
29. For a fuller account of Pashukanis’s position, see Knox 2009a, pp. 291–2 and Miéville
2005, pp. 75–101.
30. Bowring 1996, p. 223.
31. Arthur 1978.
202 Review Articles / Historical Materialism 18 (2010) 193–207

Pashukanis sought to ‘understand law as a social relationship in the same sense in which
Marx termed capital a social relationship’.32 Thus, he saw law as ‘a mystified form of some
specific social relationship’,33 that is to say, for Pashukanis, law is a definite social
relationship that arises under definite social conditions. One must assume then, that
Bowring’s differences with Pashukanis lie with the fact that Bowring sees law as a
‘mediator’ of production. This, then, is Bowring’s ‘realist’ position, whereby ‘rights and
the law can be understood as objects of struggle’.34
Again, though, an examination of Pashukanis’s work shows that this is not quite the
case. Thus, Pashukanis argues that:

By no means; we have merely said that the social relation which is called capital
began to colour or gave its form to another social relation. Thus we may consider
all that occurred purely objectively, as a material process, entirely eliminating the
psychology or ideology of its participants. Cannot this be done in exactly the
same way with law? Being itself a social relationship, it is capable to a greater or
a lesser extent, of colouring or giving its form to other social relationships.35

Here, then, Pashukanis envisages the process whereby social relationships, relationships or
production were increasingly juridified, that is, expressed through the legal form. More
bluntly, Pashukanis notes that ‘class struggle’ is ‘conducted through law’.36 It is true that
this was not necessarily Pashukanis’s primary concern, but this can largely be explained by
the Pashukanis’s peculiar circumstances. At the time, most Marxist approaches to law –
particularly those of Pashukanis’ mentor Pyotr Stuchka – emphasised the connection
between law and class-interest at the expense of giving an account of law’s specificity.
Pashukanis felt such an approach limiting, and so, whilst accepting its positive points, set
out to articulate a Marxist jurisprudence.37

Form and content

The above is well illustrated by revisiting Bowring’s discussion of self-determination, and
Pashukanis’s limited appreciation for it. Bowring argues that ‘Pashukanis was incapable of
recognising the significance of self-determination’ (p. 28), noting that, in his text on
international law,38 self-determination is only mentioned once. However, Bowring fails to
take into account Pashukanis’s text ‘Lenin and the Problems of Law’.39 In this text, which
receives no mention in Bowring’s book, nor in China Miéville’s Between Equal Rights,
Pashukanis meditates on the role of law in revolutionary strategy, explicitly dealing with

32. Pashukanis 1980a, p. 55.

33. Pashukanis 1980a, p. 58.
34. Bowring 1996, p. 223.
35. Pashukanis 1980a, p. 58.
36. Pashukanis 1980a, p. 117.
37. Pashukanis 1980a, pp. 41–3.
38. Pashukanis 1980c.
39. Pashukanis 1980b.
 Review Articles / Historical Materialism 18 (2010) 193–207 203

self-determination. Pashukanis argues, with respect to self-determination, that, on the eve

of the First World War:

Lenin understood what his opponents failed to understand: that the ‘abstract’,
‘negative’ demand of formal equal rights was, in a given historical conjuncture,
simultaneously a revolutionary and revolutionizing slogan.40

However, once this particular conjuncture had passed:

The imperialist bourgeoisie and it minions firmly tried to mask their policy of
oppression and robbery of conquered and colonial countries by empty
‘Wilsonian’ phrases on the equality of peoples, on the equal rights of nations etc.
Under these conditions a simple repetition of the old slogans would have been
meaningless. The basic task became a struggle against bourgeois democracy, and
the exposure of its lies and falsehoods.41

However, Pashukanis argued that, even in this context, the Soviet state had to support the
self-determination of those ‘backward countries which had not passed through the stage
of bourgeois-democratic national revolutions’.42 What is interesting here is the way in
which Pashukanis conceives of the relationship between form and content in the law of
self-determination. It seems relatively clear that Pashukanis recognised the importance of
self-determination, but he also recognised that this was a bounded importance. This was
because, ultimately, self-determination was about ‘abstract right’ (that is to say it was a
legal demand), and since, for Pashukanis, law has its genesis in commodity-exchange, self-
determination would not be able to transcend international capitalism.
In this way, Pashukanis understood that ‘[l]egality is not an empty sack that can be
filled with a new class content’.43 Whilst law’s content did express real struggle, this
struggle was always articulated through a specific form, rooted in commodity-exchange,
which determined the limits of this practice.
This is a perspective that is absent from Bowring’s work. Whilst he pays lip-service to
the idea that law is some specific social form, at no point in the book does he attempt to
consider what this form might be. Whilst he insists that ‘[s]ocial structures really exist and
have emergent causal powers’ (p. 108) there is no account of how the specific form of the
law might impact upon the content articulated within it.
This means that his account proves somewhat lacking, as represented by an inexplicable
passage in his account of self-determination, where he argues ‘the content of the proposed
norm [self-determination] often came into sharp conflict with its juridical form, and in
the process that content was imbued with new significance, in due course transforming
the form as well’ (p. 38). But at no point is it explained precisely what this means. This is
especially problematic given the fact that Pashukanis seems to have the upper hand with
respect to self-determination: whilst it may have threatened the particular configuration of

40. Pashukanis 1980b, p. 159.

41. Pashukanis 1980b, p. 160.
42. Pashukanis 1980b, p. 161.
43. Pashukanis 1980b, p. 144.
204 Review Articles / Historical Materialism 18 (2010) 193–207

the imperialist system of the time, its end-product was the transformation of colonial
territory into bourgeois nation-states, which – whilst clearly an important and
monumental change – remained within the co-ordinates of international capitalism.

A new account
Thus, for all the criticism that Bowring levels at Pashukanis, it seems that Pashukanis does
precisely what Bowring sets out to. Whilst Pashukanis and his contemporary followers
may at times underemphasise the role of struggle in the determination of law’s content,44 a
‘Pashukanisite’ account can accommodate this insight, whilst remaining somewhat
pessimistic about the prospects for legal argument. Thus, whilst social conflict is articulated
through the law, the law remains a definite form, and, as such, conditions this content.
Given that the legal form is based on the abstract equality of commodity-exchange, legal
argument tends to be abstract – identifying effects rather than causes – and so incapable
of systemic change. Furthermore, given law’s structural connection with capitalism, legal
argument can only abolish capitalism insofar as it abolishes itself.
This sort of analysis gives a much better account of the three great revolutions, and
their legal legacy, than Bowring’s celebration. To take, for example, the anticolonial
movement, its legal successes and legacy were hardly as unproblematic as Bowring
suggests. Thus, the right to self-determination, whilst quite clearly driven by the real
struggles of the oppressed, channelled these struggles into a form that was conducive to
international capitalism – the nation-state.45 In his book International Law from Below,
Balakrishnan Rajagopal superbly demonstrates the way that Third-World resistance –
when channelled through international law – essentially ended up producing various
institutions. But such institutions were never unconducive to the system of international
capitalism at large, and thus resistance was domesticated without producing any radical
change.
However, the process was deeper than this, in expanding the available catalogue
of rights to include economic and social ones, it simply expanded the domain of
acceptable areas for intervention. The practical result of many Third-World struggles, then,
has been the expansion of an international bureaucracy with a mandate to intervene
constantly in the various areas of social life of the peripheries.46 In other words, not only is
resistance domesticated, but even the most progressive-seeming rights can have unintended
consequences.
Given this, it seems clear that Bowring’s project of revolutionary conservatism is
inadequate. Firstly, because international law’s content is too easy to appropriate. Secondly,
because it fails to recognise the ultimate structural limitations of the legal form and its
attendant effects on social practice articulated through it. Against this, Pashukanis suggests
a way forward. He argues that we live in a world that is so entangled with law that it
would be at best foolish and at worst impossible to simply ignore the law. Furthermore,
taking into account Bowring’s work, we can see that law embeds and articulates social

44. Knox 2009b, pp. 417–29.

45. Koskenniemi 1994, p. 246.
46. Rajagopal 2003, pp. 99–134.
 Review Articles / Historical Materialism 18 (2010) 193–207 205

struggle. Yet, at the same time, the legal form always places limits upon how far these
struggles might go, and what they might achieve.
As I have argued elsewhere,47 this means that a legal strategy must find a way of taking
advantage of the content of international law, without falling foul of the problems of
form. So far as I can see, the best way to do this is through a type of ‘principled
opportunism’, whereby the law is consciously used in an opportunistic manner – paying
no attention to consistency or ‘principle’. On this reading, we might – in the present
conjuncture – invoke some of the tenets of revolutionary conservatism, as against
particular imperial actions. Doing so consistently, though, would mean failing to oppose
some of these actions. And doing so in the name of international law would mean failing
to criticise the relations of exploitation and domination that comprise capitalism. One can
go further than even this, however, for, if international law – as a structure – is produced
by international capitalism and can be used to justify imperial action, then a principled
attachment to international law legitimates both the imperialist system as a whole and the
particular moments of violence that that arise from it.48

Conclusion
In some respects, it may be unfair to criticise Bowring’s work in this way. Towards the end
of the book, Bowring does admit that it is ‘not a systematic or methodical explanation’ of
his views (p. 207). Yet the absence of an account as to the ‘law-ness’ of law49 does mean
that the book feels somewhat incomplete. Despite this, and the substantive differences
outlined above, Bowring’s book remains an extremely impressive achievement and one
that anyone interested in international law would do well to read. The book represents an
excellent contribution to the growing debate on Marxist approaches to international law,
with Bowring giving us a take on international law which has rarely been seen – a
genuinely radical account that nonetheless seeks to defend it. One hopes that Bowring
will have time to produce in due course a systematic and methodical exposition of
his views.

Robert J. Knox50
MPhil/PhD Candidate London School of Economics
robertjknox@gmail.com

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48. See Miéville 2009, especially p. 53.
49. Miéville 2004, p. 275.
50. Thanks to China Miéville and Umut Özsu for their helpful comments on drafts of this
review, all errors remain my own.
206 Review Articles / Historical Materialism 18 (2010) 193–207

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