DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION What is to be Done (with Critical Legal Theory)?

Robert Knox
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Without a revolutionary theory there can be no revolutionary movement. This thought cannot be insisted upon too strongly at a time when the fashionable preaching of opportunism goes hand in hand with an infatuation for the narrowest forms of practical activity. Lenin, What is To Be Done?1 Introduction The relationship between scholarship and political action has always been a burning issue. It is particularly important in the case of scholarship oriented away from the political mainstream. Here, there is no easy route to political effectivity through think tanks, working groups or the various technocratic transmission belts between academia and public policy. In the context of the renewed wave of leftwing political activism from the Occupy movement, to the Arab Spring, to the global anti-austerity movements this question is no longer simply important but also urgent. As such, in writing his piece, Bill Bowring has rendered a great service to those of us who identify as the left inside of the international legal academy. His article joins a growing number of pieces designed to address the question of how (or whether) international law might be used to advance the interests of the oppressed and exploited.2 The article is particularly useful for two reasons. Firstly, in focusing on the British branch of Critical Legal Studies (CLS), it sheds light on a part of CLS that was much more explicitly rooted in the Marxist tradition, and more focused on the question of political action. Secondly, in focusing on organisations of progressive lawyers, the article addresses an existing gap in the literature. Throughout the piece Bowring strongly criticises CLS, particularly its American variant. Many of his criticisms, especially as regards its eclecticism and its political disengagement are entirely correct.3 In particular, it is clear that the leading critical figures in international legal scholarship cannot meaningfully be said to possess radical politics. However, it will
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Many of the ideas in this paper were hashed out in angry discussions about the state of critical legal theory and pie in the sky dreaming about the potential to change things conducted in various pubs across London. So my thanks go to my co-participants in these noble exercises in particular Tor Krever, Paavo Kotiaho and Owen Taylor as well as to those who provided the alcohol to facilitate said discussion. Thanks also to Honor Brabazon, Luis Eslava, Tor Krever and the anonymous reviewers of the Finnish Yearbook of International Law for their helpful comments on drafts of this piece. Given the over-zealous pedantry displayed by one reader, I am tempted to blame any errors of style on him or her, alas, however, I am a stickler for tradition, so any errors of style or substance remain mine alone. 1 Vladimir Lenin, What is to be Done? Burning Questions of Our Movement, (Foreign Languages Press: Peking, 1973) at 28. 2 Robert Knox, Marxism, International Law and Political Strategy, 22 Leiden Journal of International Law (2009) 413-426; Robert Knox Strategy and Tactics, 21 Finnish Yearbook of International Law (2010) 193229; Grietje Baars, Reform or Revolution? Polanyian Versus Marxian Perspectives on the Regulation of the Economic, 64 Northern Ireland Legal Quarterly (2011) 415-431 Akbar Rasulov, The Nameless Rapture of the Struggle: Towards a Marxist Class-Theoretical Approach to International Law, 19 Finnish Yearbook of International Law (2008) 243-294 and Susan Marks, International Judicial Activism and the Commodity-Form Theory of International Law, 18 European Journal of International Law (2007) 199-211 3 For a critical account of the apolitical nature of contemporary American CLS see Tor Krever, 'A Journal of the Legal Left?' (forthcoming) Unbound; see Owen Taylor Reclaiming Revolution (forthcoming) Finnish Yearbook of International Law for an account tracing the depoliticised nature of contemporary critical scholarships approach to radical social change more broadly.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION be argued here that Bowrings analysis suffers from several important problems, which ultimately deprive it of much of its force. In particular, it is argued that Bowring has an overly restrictive and narrow notion of practice, which undermines many of the arguments he makes about its relationship to theory. Critical != Radical Bowrings understanding of practice is prefigured by his understanding of the two groups that he seeks to analyse. In his opening paragraph, he differentiates between radical, or critical, legal scholars whose aim is to problematise and unsettle the law and radical, or critical, legal practitioners who aim to place their skills at the service of protagonists in the class struggle.4 There are immediately several problems with this approach. First and foremost, as Bowring seems to later recognise, when speaking of the legal academy one cannot interchangeably use the labels radical, or critical. Critical legal scholarship is a scholarly movement associated with a number of theoretical positions the indeterminacy thesis, the constitutive nature of law, the fact that law is political, etc.5 Whilst these positions do place critical legal scholars outside of the academic mainstream, they do not necessarily indicate any radical political commitment. Indeed, writing as one of those involved in organising the Towards a Radical International Law workshop (whose call for papers was a source of inspiration for Bowring's piece), I can state that part of the rationale for using the word radical was to indicate a political break with existing critical legal theory. This is a fact that Bowring recognises in his accounts of Kennedys and Koskenniemis politics, so it seems odd that he would make this conflation. This is important because whilst it may be true that the aim of many of the scholars under Bowrings umbrella term is to problematise and unsettle the law, many of us have broader aims. Rather than simply orienting ourselves towards unsettling the law, many scholars are explicitly outward facing, seeking to provide analytical legal tools for progressives invoking the law,6 or cautioning against too enthusiastically embracing the law as a tool for social change.7 Whilst this may not always be successful, the aim is clearly more than simply unsettling the law. Equally, many progressive legal practitioners do not view themselves as placing their skills at the service of protagonists of the class struggle8. There are a number of different understandings to which they might hold, such as advancing justice and human rights, or protecting the rule of law.9 Indeed, John Hendy QC, a Vice President of the Haldane Society
4 5 6

Knox, Strategy and Tactics, supra note 2 at 201-203. Rasulov, supra note 2 at 290-294. 7 China Miville, Between Equal Rights: A Marxist Theory of International Law (Brill: Leiden, 2005) at 295318; Knox, Marxism, International Law and Political Strategy supra note 2 and Tor Krever, 'International Criminal Law: An Ideology Critique' (forthcoming) Leiden Journal of International Law.
8 9

One can see this in the examples of the Barristers Chambers that Bowring cites as examples of the massive expansion of radical practice Doughty Street, Garden Court and Tooks Chambers. Doughty street is motivated by the desire for justice and aims at the promotion of human rights and civil liberties through the law <http://www.doughtystreet.co.uk/about_chambers> (last accessed February 2013). Garden Court is driven by our strong ethics and a passionate belief in human rights and social justice and progression of civil liberties and access for all to social justice < http://www.gardencourtchambers.co.uk/about_us/index.cfm> (last accessed February 2013) . Tooks focuses on protecting the individual against the interests of the state

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION of Socialist Lawyers, (an organisation that Bowring points to as an example of radical lawyering)10 argued that the notion of a left-wing barrister is an absurdity ... [y]ou dont ask what someones politics ... are before you accept a brief because the cab-rank rule is far more important.11 What this suggests then, is that positing two relatively homogenous groups one composed of theorist scholars and the other composed of practical lawyers may not be productive. Instead it is better to understand that within each of these two groups, various theoretical understandings of practice, and theoretical attempts to change practice exist with certain positions cohering across the divide. In particular neither of these groups can be said to be wholly Marxist yet both have self-identified Marxists within them. A corollary of such a position (or perhaps a precondition) is an understanding of both theory and practice (and their relation) which is necessarily broader than Bowrings argument allows. It is to such a conception that this article now turns. Wither practice? Bowrings particular understanding of practice is perhaps best illustrated through his account of Pashukanis. After detailing his political trajectory, Bowring notes that Pashukanis was an academic, not an activist lawyer.12 One could immediately quibble with this description, and note that Pashukanis was in fact a circuit judge and served as legal adviser to the People's Commissariat of Foreign Affairs. However, such a quibble obscures a more fundamental fact. One can hardly characterise Pashukanis as simply as an academic. At the height of his influence, his academic work became orthodoxy in the Soviet state, shaping the outlook of a generation of lawyers. His theoretical positions had direct political implications impinging on what the revolutionary states positions would be towards law and legal regulation in the transition period. 13 Thus, Pashukanis academic, theoretical work had direct and immediate political and practical consequences, and he consciously understood this. This practical importance is illustrated by the fact that he was executed because his theoretical positions were increasingly at odds with Stalins policy of legal consolidation.14 In this context, it seems rather odd to argue that Pashukanis was not an activist lawyer. As noted above, Bowring initially characterised activist lawyers as those whose aim is to place their skills at the service of protagonists in the class struggle. Yet this is precisely what Pashukanis theoretical interventions aimed to do. In accounting for the relationship between law and capitalism, he sought to intervene politically in the constitution of the Soviet state and its practices and guide it towards its ultimate victory. One can disagree substantively with
(<http://www.tooks.co.uk>) and pushing the boundaries of the law to protect the rights of individuals, <http://www.tooks.co.uk/about_us> (last accessed February 2013).
10 11 12 13

55 Socialist Lawyer (2010) 16-20, at 20

Indeed, as Stephen Cohen notes and as will be expanded upon below in the Bolshevik imaginary theorising was an incredibly important activity and as such the Bolsheviks respected theory and ideas as passionately as truth because they believed the two were synonymous, and saw in this their capacity for leadership, Stephen F. Cohen , Bukharin and the Bolshevik Revolution: A Political Biography 1888-1938 (Wilwood House: London, 1974). 14 Piers Beirne and Robert Sharlet, Introduction in Piers Beirne and Robert Sharlet (eds.), Pashukanis: Selected Writings (Academic Press: New York: 1980) at 4-5.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION his contribution, but it seems misplaced to argue that this was not a contribution towards the practice of the class struggle. In fact, one can go further than this. In a revolutionary state, where the oppressed and exploited have taken power and positive social transformation is occurring, what exactly does the concept of an activist lawyer mean? This is the crux of Bowrings problematic understanding of practice. Throughout the piece it remains at a purely narrow, defensive level. His examples of progressive legal practice include the representation of defendants accused of public order offences, the provision of monitors for anti-fascist demonstrations, participation in campaigns for human rights and the provision of free representation on legal matters.15 These are all admirable goals, but they are hardly necessarily indicative of radical politics. Most self-confessed liberals could happily sign up to such a programme. Whilst these actions may protect the immediate interests of the oppressed and exploited, one cannot say they self-evidently challenge the conditions responsible for oppression and exploitation in the first place, namely capitalist social relations. From practice to praxis Such an understanding of practice is hardly new in the history of left wing political thought. Indeed, it was one of the most prominent targets of Lenins ire in his famous polemic What is to be Done?. In this work, Lenin criticised the Bernsteinian trend in social democracy for reducing the working-class movement and the class struggle to narrow trade unionism and to a realistic struggle for petty, gradual reforms.16 Lenin argued that this was tantamount to dissolving the radical distinctiveness of socialism as a political movement. This argument allowed Lenin to distinguish between trade union consciousness and SocialDemocratic consciousness (at the time, Social Democracy was the name for the revolutionary Marxist movement). In the former case, what was at issue was the conviction that it is necessary to combine in unions, fight the employers and strive to compel the government to pass necessary labour legislation.17 By contrast, Social-Democratic consciousness involved an understanding of the irreconcilable antagonism of their [the exploited] interests to the whole of the modern political and social system.18 Which meant orienting practice towards overthrowing this system. Taking this schema and further developing it, Antonio Gramsci suggested three different levels of collective political consciousness with corresponding forms of practice.19 The first was what Gramsci called the economic-corporate level, where members of specific professional groups realise their common interests and fight for them.20 The second was when consciousness is reached of the solidarity of interests among all the members of a social class-but still in the purely economic field. The practical outcome of this was reform that remained with existing fundamental structures.21 The final stage was one which can be
15 16 17

Lenin, supra note 1, at 20. Ibid, at 27. 18 Ibid, at 36. 19 Antonio Gramsci, Selections from the Prison Notebooks (International Publishers: New York, 1971) at 181. 20 Ibid. 21 Ibid.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION termed hegemonic. Here a subordinate group becomes aware that one's own corporate interests ... transcend the corporate limits of the purely economic class, and ... must become the interests of other subordinate groups.22 Consequently such a group will have to pose a universal struggle, which transcends the status quo and articulates a new hegemonic order. Lenin and Gramsci are not the only ones to have articulated such a distinction,23 but they have the advantage of posing the issue very sharply. The relevance here should be obvious. When Bowring describes practice he reduces it simply to trade union consciousness or to Gramscis purely economic categories. He does not seem to have an equivalent of the radical practice that the two describe. What is it, then, which constitutes this more radical type of practice? It is here that the passage from Lenin cited at the beginning of this article becomes relevant. Lenin argued that what allowed for the production of a distinctively radical (or revolutionary) practice was the existence of a revolutionary theory.24 Indeed, Lenin went further than this, infamously arguing that, left to their own devices, the oppressed will only ever develop trade union consciousness and that Social Democratic consciousness needed to be introduced from the outside by educated representatives of the propertied classes.25 One need not agree with Lenins controversial statement to understand its logic. Ones immediate experience of oppression or exploitation is powerful, but it is unable to locate that experience within a broader ensemble of social relations. It is only through theoretical reflection that one can understand the ways in which broader logics produce and sustain particular instances of oppression and exploitation. And it is only by understanding these logics that one might formulate practices which could overcome them.26 Gramsci extended this argument to its logical conclusion. He used the term praxis to denote this conscious unity of theory and practice. For him, such a conception was so central to Marxism that he dubbed it the philosophy of praxis.27 In erecting an overly rigid divide between theory and practice, Bowring elides a distinctive type of revolutionary practice. This means that the division of labour which Bowring proposes at the end of his piece is flawed. He argues that politically-inspired lawyers can get on with what they are very usefully doing already, whereas scholars should engage in immanent critique of other scholarship, and subject law to disillusioned materialist critique. Yet the argument above suggests that the practice of radical lawyers will itself need to be
22 23

Ibid. See Knox, Strategy and Tactics, supra note 2 at 215-222 and Baars, supra note 2 (where the problem is discussed under the rubric of reform or revolution) for accounts of others who have operated with such considerations. Within the international legal field specifically Luis Eslava and Sundhya Pahuja provide a detailed typology of the different types of practical standpoints available to international lawyers, noting that at the very least we can find a difference between conservation, reform and revolution all of which would result in different legal practices, in Between Resistance and Reform: TWAIL and the Universality of International Law 3 Trade Law and Development (2011) 103-130, especially at 110-115. 24 Lenin, supra note 1, at 28. 25 Ibid, at 37. 26 John Sabonmatsu is especially insightful on this point, see The Postmodern Prince: Critical Theory, Left Strategy, and the Making of a New Political Subject (Monthly Review Press: New York , 2004) at 193. 27 Gramsci, supra note 19, at xiii. It is sometimes argued that this was simply Gramscis codeword for Marxism, but Peter Thomas has convincingly shown this is not the case, and that in fact the philosophy of praxis indicates something specific about Gramscis understanding of the Marxist trad ition, see Peter Thomas The Gramscian Moment: Philosophy, Hegemony and Marxism (Brill: Leiden, 2009), at 105-108.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION framed by theoretical reflection, meaning that the theory of radical scholars cannot be simply separated off from practice. We are all theorists now... Bowrings overly reified distinction between theory and practice does not just operate on the practical side; it is also problematic in terms of his understanding of theory. Here, once again, it is useful to turn to the work of Antonio Gramsci, particularly his reflections on philosophy.28 Gramsci argued that it is essential to destroy the widespread prejudice that philosophy is a strange and difficult thing.29 This was because all men are philosophers, since in every one of their actions they have a conception of the world and the relation between its various parts.30 This is as true of practicing lawyers as it is of anyone else. Even engaging in the narrower activities that Bowring describes involves making theoretical judgments about the effectiveness of law, its contestability, the political role it can play, the importance of formal equality etc. This is even more pronounced when the aim of these lawyers is serving the interests of the working class and the oppressed.31 Such a position involves a series of theoretical questions about what the interests of these groups are, whether we mean their immediate interests or their longer term interests and whether or not law can in fact serve these interests. Of course, one might argue, if theory is all pervasive, then the above importance of theory is misplaced practice is always and already praxis. Yet here Gramsci insisted that one must distinguish between what we might call following Althusser32 spontaneous philosophy, and more considered, critical reflection. For Gramsci, if everyone is a philosopher, the only question becomes: [I]s it better to think, without having a critical awareness, in a disjointed and episodic way? In other words, is it better to take part in a conception of the world mechanically imposed by the external environment ... Or, on the other hand, is it better to work out consciously and critically one's own conception of the world ... ?33 Thus, the theory referred to in the previous section is theory in its systematic and selfconscious sense. This becomes especially important because absent this, ones supposedly concrete practical proposals can slide somewhat into empty abstraction. Thus, at the end of his piece, Bowring puts forward his practical call-to-arms, urging that: However, it is to be hoped that the scholar or for that matter practitioner, freed of illusion, eyes wide open, will not simply relapse into the armchair, but will find ways
28

For a discussion of how this plays out more broadly in theoretical terms see Knox, Strategy and Tactics supra note 2, at 211-212. 29 Gramsci, supra note 17, at 323. 30 Ibid.
31 32

Louis Althusser, Philosophy and the Spontaneous Philosophy of the Scientists, (Verso: London, 1990). Althusser had his own account of these issues, he argued that theory itself is a specific form of practice, theoretical practice, which transforms facts and concepts (given to it from other practices) into knowledge. This knowledge would then be reflected or expressed in other practices. See For Marx (Penguin, 1969) at 167. Whilst his approach has much in common with Gramscis, it suffers from an overly abstract schema which cannot account for the ways in which theory and practice are always and already dialectically intertwined. 33 Gramsci, supra note 17, at 323.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION to employ her legal competence and skills modestly in the service of collective resistance and struggle. If not, she will fall into a striking performative contradiction.34 The problem with such a statement is that it demands further theoretical reflection if it is to be meaningful. Very few people on the (legal) left would disagree with the idea that it is necessary to employ their legal skills in service of collective resistance and struggle. But such a statement begs a number of questions. The main question is of course how exactly ones skills can be deployed in service of collective resistance and struggle, and what forms of practice this would entail. This is especially important because there is a world of difference between taking advantage of legal opportunities that arise in the course of social struggles and framing those social struggles in terms of rights. In order to concretise Bowrings practical proposal one would need a theoretical account about the nature of law and its relationship to capitalism (and imperialism, exploitation and oppression). The relevance of this task is heightened by a tension running through Bowrings own argument. In his critique of some of the leading lights of the critical field, Bowring approvingly cites Pierre Bourdieus account of the juridical. From Bourdieu, Bowring takes the idea that [l]aw has the capacity to incorporate its lawyer critics35 by contributing to adaptation of the law and the juridical field to new states of social relations and therefore legitimating the established order.36 For Bowring, this represents the fate of the lawyer, including both scholars and practitioners.37 Yet if this is the fate of the lawyer, how can one say that legal action serves the interests of the oppressed and exploited? What the quote suggests is that even when legal action serves the short term interests of the oppressed and exploited, in the long term it contributes towards legitimising those very relations that give rise to their oppression and exploitation. As I have argued elsewhere, this disjuncture gives rise to the theoretical problem of the relationship between strategy and tactics.38 In order to work out a practice that can be said to further the interests of the oppressed and exploited in the long term it is necessary to reflect on what law is, whether its legitimating function is intrinsic to its nature and whether it can be overcome. In the absence of this, any practical usage of law will remain at best confused and at worst will default to a certain kind of liberal legalism. This applies a fortiori to international law. As he has argued elsewhere,39 for Bowring, international human rights law embeds a revolutionary legacy, serving as symbolic capital for future struggles.40 Yet surely Bourdieus point holds here as well. Even if the language of international human rights law can be mobilised in struggle, it ultimately serves to legitimate the status quo, and integrate oppressed groups into the structure of global capitalism.41
34 35 36 37 38 39

Knox, 'Strategy and Tactics' supra note 2. Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge-Cavendish: London, 2008).
40 41

Balakrishnan Rajagopals International Law from Below: Development, Social Movements, and Third World Resistance (Camridge University Press, 2003) gives an account of how human rights discourse has continually incorporated the resistance of the Third World, and channelled it into the creation and proliferation of an

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This is especially true in the case of Bowrings most cherished right that of selfdetermination. As Koskenniemi has argued (in an article not discussed by Bowring), the function of the legal discourse of self-determination42 has been to reconstitute the political normality of statehood43 in periods of political instability. Whilst it remains pregnant with some kind of revolutionary content, it ultimately channels resistance into a form constitutive of the modern global order the nation-state.44 This is particularly evident in the case of decolonisation, where the achievement of the legal right to self-determination was followed by the rise of neo-colonialism formal legal independence matched by subtler forms of economic exploitation, which kept imperialism in place.45 Bowring attempts to address this by arguing that international law is ... a special case because it was rent with bloody and tumultuous struggles.46 Yet this seems to miss Bourdieus point. The (domestic) law Bourdieu described was also marked by high levels of social struggles.47 In fact it is precisely because these struggles are conducted through the law that it is able to serve the function that Bourdieu marks out for it. This cannot be what makes international law a special case. In order for Bowring to make his practical case for international law, it is necessary to engage in further academic reflection.48 Dont mourn, organise Given the focus on the unity of theory and practice, it would be ironic if these issues could be resolved purely on the intellectual level. This was not the case. For both Lenin and Gramsci, and the Marxist tradition more generally, the issue was also a profoundly practical one, concerning political and organisational questions. Indeed, What is to be Done? is a polemic in which Lenin argued for a particular organisational form for the Russian Social Democratic movement. What is important for this argument is that, for Lenin, the unity of theory and
interventionist international bureaucracy. Of course, there have been those who have despite being critical of human rights held out that their contradictory nature might open up space for forms of political contestation, see for example Costas Douzinas Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge-Cavendish: New York, 2007). 42 One of the consequences of Bowrings insufficie nt theorising of the specificity of legal argument is that he constantly conflates the Bolsheviks political programme of self-determination with the legal right to selfdetermination. In so doing, he misses the determinate anti-imperialist context in which the Bolsheviks raised the slogan, and the analysis that lay behind it, neither of these are present in the legal right. 43 Martti Koskenniemi Self-Determination Today: Problems of Legal Theory and Practice 43 The International and Comparative Law Quarterly (1994) 241-269, at 246. 44 For a detailed historical and theoretical account of this process see Sundhya Pahuja Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press, 2011) at 44-95. 45 The literature on neo-colonialism is vast, but see Kwame Nkrumah Revolutionary Path (Panaf Books: London, 1973) at 310-340.
46 47

In fact, as Reecia Orzeck has argued, domestic law may in fact be more amenable to such forms of struggle, see Reecia Orzeck, The Difference the Scale Makes: Domestic and International Law through a Class Lens, unpublished paper, presented at the Seventh Annual Historical Materialism Conference, 2010. 48 This is reinforced by Bowrings later claim that an accurate historical account of the development of international law in the 20th century will reveal ... [its] revolutionary ... content ... Which is not to say that law is or can be itself revolutionary. For this statement to have any content whatsoever it would require an a ccount of the legal form (as opposed to its content), why this form is not revolutionary, and an explanation of the relationship between form and content. All of these questions would have massive implications for whether the symbolic capital Bowring alludes to could be usefully deployed.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION practice was generated through the party an organisational form in which intellectuals and workers were brought together to form political perspectives.49 The same was true of Gramsci, who argued that the political party was the Modern Prince, which could intervene in spontaneous practical struggles and give them a conscious leadership or raise them to a higher plane by inserting them into politics.50 It was for this reason that Gramsci considered the political party the method through which the oppressed elaborate their own category of organic intellectuals directly in the political and philosophical field.51 Given this, it is salutary that Bowring pays a great deal of attention to organisations. However, since he continues to hold theory and practice as rigidly separate categories, he is unable to understand the organisational form appropriate to a radical legal practice. In Bowrings account, the question of organisation essentially revolves around taking the discrete categories of theorist and practitioner and making them speak to each other. This is evident in his description of the Critical Legal Conferences, where the aim is to bring radical legal practitioners to the event. The problem is more marked in Bowrings account of radical lawyering organisations such as the CCR, IADL, NLG and Haldane Society. Obviously, these are all important organisations that do valuable work; however, it is necessary to rethink the degree to which one can really characterise them as radical. For example, Bowring notes that the aim of the Haldane Society is to lobby for law reforms, civil liberties and access to justice for all, support national liberation movements against colonialism and campaign against racism and all forms of discrimination.52 As noted above, there is nothing in this list that would be especially offensive to various non-radical liberals. This extends to the legal practice in which these organisations engage, many of which could happily be supported by civil libertarians or social democrats. In fact, one can go further than this. Whilst it is perhaps true that the lobbying in which such organisations engage can only be done by those loosely on the left, much of the practical lawyering engaged in by the members of these organisations could be done by lawyers with no self-professed political alignment. With the exception of the cost (that is to say, when radical lawyers do pro bono work), the basic legal tactics and actions all remain well-within the professional limits of the legal order. Essentially then, the radicalism of such organisations inheres only in the subjective orientation of their members, and in the fact that the cases these lawyers take on with the caveat raised above as regards the cab-rank rule can be said to protect the immediate interests of the oppressed and exploited. This is reflected in their organisational character. These are organisations of lawyers who orient towards certain forces of the left in particular the Trade Unions, centre-left political parties such as the Labour Party and the Democratic Party and protest movements but have no meaningful organisational connection to such

49 50

Lenin, supra 1, at 153-154. Gramsci, supra note 17, at 199. 51 Gramsci, supra note 17 at 15. Initially Althussers schema did not address this question; simply talking about the reflection or expression of theory in practice, however, as he recognised in a later introduction that this fusion exists in concrete forms of existence such as trade unions and parties, which direct class struggle. See Althusser, supra note 32, at 15.
52

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION forces. The extent of such organisational connections in their practical work is that the left will frequently be their clients. Without wishing to belittle the work done by these organisations, it is useful to compare it to three examples from the history of radical lawyering. The first is the Reichstag Fire trial, where an essentially Nazi-controlled court tried Marinus van der Lubbe, Ernst Torgler (leader of the Reichstag Community Party group) and Georgi Dimitrov, Simon Popov and Tanev (members of the international Communist movement staying in Berlin) for burning down the German Reichstag.53 The Nazis are now generally acknowledged to have had (at the very least) a significant part in starting the fire, and intended to use it and the trial to discredit the Communist movement and exaggerate the threat it posed to the German state. Although much of the trial was conducted in legalistic language, it is most famous for Dimitrovs political defence of his actions. He took every opportunity to cross-examine witnesses, accusing them of being in the pay of the Nazis, and goading Goering into to threatening him with murder.54 Above all, Dimitrov used the trial not as a device to prove his individual innocence, but to destroy the political credibility of the Nazis and politically defend the Communist Party. Famously, when Goering declared the goal of the regime was to fight against the Communists, Dimitrov responded: Yes, of course, bravo, bravo, bravo! They have the right to fight against the Communist Party, but the Communist Party of Germany has the right to go underground and to fight against your government; and how we fight back is a matter of our respective forces and not a matter of law.55 The second example, is that of Jacques Vergs, the (then) radical French attorney who was closely associated with the Front de Libration Nationale (FLN) of Algeria, a radical anticolonial movement that sought to liberate Algeria from French colonial domination. Vergs engaged in systematic theorising about the role of legal argument in relation to social struggle and put this into practice through a number of radical legal tactics.56 The most discussed aspects of these practices were Vergs various attempts to directly politicise trials, engaging in grandstanding activities, and denouncing the legitimacy of justice emanating from colonial countries etc. However, there were also a number of smaller roles that he played which were also important. In particular, he highlighted the importance of lawyers as serving as a means of communication between members of the FLN. They carried messages (and orders) to imprisoned members from both the outside organisation and other imprisoned members. This was only possible because of the particular privileged relationship that exists between lawyer and client.57 The final example is perhaps more black letter than the preceding ones, but nonetheless remains on a continuum with them. One of the most famous activities of the Black Panther
53

John Mage and Michael Tigar The Reichstag Fire Trial, 19332008: The Production of Law and History 60 Month Review (2009) <monthlyreview.org/2009/03/01/the-reichstag-fire-trial-1933-2008-the-production-oflaw-and-history> (last accessed December 2012). 54 Ibid. 55 Ibid. 56 For an overview of Vergs strategy of rupture see Knox, Strategy and Tactics supra note 2 at 225-227; Martti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck Yearbook of United Nations Law (2002) 1-35 and Emilios Christodoulidis, Strategies of Rupture, 20 Law and Critique (2009) 3-26. 57 Jacques Vergs, De La Stratgie Judiciaire, (Les ditions de Minuit: Paris, 1968) at 190-198. He also describes this experience in the documentary Terrors Advocate.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION Party was the armed patrols in which they engaged. Essentially, Party members would watch the police in order to prevent them engaging in violence against the black community, whilst brandishing firearms. Obviously, the police were not especially fond of such tactics, and would attempt to move them along. Against this, Huey Newton who had taken night school law classes would note his Second Amendment right to bear arms, as well as legal precedent for standing a reasonable distance from police officers. Bobby Seale offers a vivid account of how this became an aggressive political tactic: Who do you think you all are anyway? Huey said to the pigs. And the other pigs are on the sidewalk harassing all the brothers and sisters who have gathered around: You people move on down the street! Huey started interrupting. You don't have to move down the street! Don't go anywhere! These pigs can't keep you from observing. You have a right to observe an officer carrying out his duty. And these pigs, they listened to this shit. See, Huey's citing law and shit. You have a right to observe an officer carrying out his duty. You have a right to. As long as you stand a reasonable distance away, and you are a reasonable distance. Don't go anywhere.58 What is significant about all of these actions is that their radical nature inheres directly within them. In each instance, there is clearly action on the legal plane, but action that goes beyond the accepted and recognised parameters of the law, in order to further the struggle.59 In these instances, radical politics is manifested directly in the actions of those invoking the law. Indeed particularly in the case of the first two examples these tactics might well be frowned upon in strictly legal terms, and could result in the defence failing, or a lawyer being subject to professional or penal sanctions. Each of these actions therefore is one which could not be apolitically done by any practicing lawyer, yet they nonetheless remain identifiably within the legal realm. This is a markedly different vision of legal radicalism to that practiced by the organisations that Bowring describes. What this points to is a fundamental difference in orientation. On the one hand, we have a lawyer who is working for a political organisation and on the other, we have a militant whose struggle has extended to the legal field. With the former, the character of the legal action is dictated by the legal field, and politics enters into play by using this logic to win for the left. In the latter, legal tactics are dictated by a broader political logic, which may at times be unconventional or even counterproductive in legal terms. This is not purely a question of subjective orientation. The common factor in each of these examples is that the members belonged first-and-foremost to disciplined political organisations (indeed neither Dimitrov nor Newton were lawyers in the professional sense).

58

Bobby Seale, Seize the Time: The Story of the Black Party and Huey P. Newton (Black Classic Press: Baltimore, 1991) at 89. 59 As Honor Brabazon succinctly puts it, there is a difference between the use of law for politics and the use of law as politics. Whereas the latter involves political objectives being subordinated to the procedural logic of the law, in the former case, law is subordinated to political objectives, and so it is invoked in a way contrary to its intended use. See Honor Brabazon, Occupying Legality: The Selective Use of Law in Latin American Occupation Movements, forthcoming in Bulletin of Latin American Research. Such a position dovetails with what I have elsewhere termed principled opportunism, whereby law should never be invoked as an independent consideration: an intervention should never be conducted directly in the name of legality, see Knox, Strategy and Tactics, supra note 2, at 222.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION Their actions within the legal field were dictated by the organisations to which they belonged.60 Bringing this together, we can now begin to see the shape of a radical legal praxis and its organisational character. Essentially, in the type of radical party envisaged by the Marxist tradition, theory and practice can be brought together in an organisational form. There is no rigid separation between theory and politics, because theory is essential for analysing the structural character of the world order, and formulating the strategic perspectives for its overthrow. These are then mediated through the practical struggles of the organisation into tactical perspectives. A similar process occurs with law. Theoretical reflection on the relationship between law and capitalism determines the overall strategic orientation towards law, and helps comprehend the limits of legal struggle. This theoretical reflection must of course draw from the practical activities of members of the organisation. Yet these practical activities are necessarily framed by the theoretical and political orientation of the organisation as a whole. As such, the more immediate tactical issues of legal struggle are not determined by the logic of the legal field, but rather through collective political deliberation, framed by theoretical, strategic and political perspectives. This may result in a decision to adopt legalistic tactics (because winning an immediate victory may be the overriding concern), or it may not, but that decision is governed by collective political decision-making. It is in this way that theory and practice are brought together. Here the key difference lies not so much in whether one is a theorist or practitioner, but rather in the different strategic political choices made by those who operate primarily in the legal field. Conclusion: (What is to be Done?) There is of course an obvious response to the above considerations. Whilst it is all well and good to speculate about such organisations, they are in rather short supply in the contemporary world. Indeed one could argue the organisations that Bowring pays attention to were in fact historically linked to such types of political parties (in particular the various Communist Parties). This objection is correct. However, it is only correct in the short term. A key lesson from the Marxist tradition is that we cannot rigidly separate the short-term from the long-term. The long-term is ultimately made up from an accumulation of short-term moments. Thus, if we are to take our strategic commitments seriously, they must manifest themselves in our tactics. What this means is that,
60

Eslava and Pahuja posit a similar argument, their categorisations are based on the relationship between an individuals sense of justice and its relation to law. Hence, for them as here the revolutionary occupies liminal or border position between inside and outside the law, invoking it when necessary but not being defined by it. However, owing to their rather individualist and internal focus, they fail to note the vital importance of political organisation in creating the space for this outside position. See Eslava and Pahuja supra note 23, at 112. Of course, this organisational form is not just limited to political parties, and so for example Brabazon has detailed the way in which Bolivian landless workers mediate their legal struggles through the Landless Workers Movement (MST), see Honor Brabazon Legal Aspects of Agrarian Reform and Resistance in Contemporary Bolivia, unpublished paper, presented at the Towards a Radical International Law Workshop, London, 2011.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION even if such an organisation is not immediately on the cards, it is vital to think about the steps one might take to build one. The question then becomes what these steps might look like. One of the main aims of this piece has been an attempt to cast doubt on the idea that our starting point should be the division between practitioners and theorists in the legal field. Instead, it is more productive to start from the idea of radicals (who share political and theoretical commitments, at least at some inchoate level) who operate within the legal profession and then think about the type of interventions they can make. Such a position points to the need for a broader engagement with political actors as a whole. Here, once again, it is useful to turn to Gramsci. Alongside his well-known idea that everyone was a philosopher, there lurks the idea that everyone is also a jurist. Gramsci argued that since every person creates and modifies norms in their everyday existence, they are a type of legislator.61 The only difference between these everyday legislators and official legislators is the degree of coercion that can be exercised to secure compliance and concessions that can be granted to secure consent. Equally, although Gramsci does not say this, we can say that everyone is constantly navigating a complex series of legal rules, making judgments about their validity and because all men are also philosophers implicitly making a number of theoretical assumptions about the nature and function of law. Hence, in a sense, we are all lawyers. This is especially true of political movements. Outside of defensive legal actions such as trials, there is constant recourse to the language of legality, to specific legal provisions, to the idea of the rule of law etc., even amongst those who consider themselves politically radical. It is this ground which seems especially fertile for radical legal actors to make a contribution given their more considered reflection and sustained practice in law. Such a contribution would necessarily encompass both the strategic and tactical dimensions of legal struggle. In this way the theorists and practitioners that Bowring identifies would be brought together in common conversation around a concrete project, facilitating the kind of rapprochement for which he calls. Although Bowring may place undue emphasis on the distinction between theorists and practitioners, one cannot deny that in the real world there is a specific division of labour between legal academics and legal practitioners, meaning that they have skills and training suited to specific types of practices.62 Therefore, it seems prudent to reflect on what sort of interventions academics might make specifically in order to further this kind of project. A correlate of the above focus on the question of organisation is the question of the form that interventions will take. In order to reach particular audiences, particular forms will be needed. Thus, what is suitable for an academic audience written in a particular style, with close focus on referencing and only accessible to those already part of a university network may not be best placed to reach wider political forces. In order to reach a broader audience it is necessary to prioritise writing as accessibly as possible, in fora that are open access and

61 62

Gramsci, supra note 17 at 265-266 Rasulov, supra note 2, at 280-281. One should note however that this is always a blurry distinction. Academics are responsible at least in part for the training of legal practitioners and many academics also act as legal practitioners.

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DRAFT: PLEASE DO NOT CITE WITHOUT AUTHORS PERMISSION relatively widely read.63 Equally, such practices are not just limited to writing, radical political movements regularly run debates, talks and educational meetings and again ones contribution to such meetings ought to be calibrated to the audience. As noted above, in terms of content, it is already the case that a whole host of juridical issues are continually discussed by radical political movements. Interventions are therefore easily made here. In particular, focus can be placed on the issues of laws structural interdependence with capitalist social relations, as well as the concrete instances of the laws complicity with capitalist and imperialist domination. Given the routine nature with which imperialist actions are denounced in distinctly legalistic terms, radical legal scholars could make a strong intervention on this front. As above, this will have important implications for the strategic and tactical deployment of legal language and legal argument. This is not to say that conferences, articles and papers are not important. They serve an important function in sharpening perspectives, and encouraging debate which can then be translated for different audiences. Historically, such debate might have been carried out within radical political organisations who could use their resources to subsidise such sustained thinking but this is no longer the case. Moreover, in a rather cynical vein, for those of us who are academics, such practices are a sine qua non for remaining so. However, the perspective outlined here is one that cuts against Bowrings conclusion that we should start from the immanent critique of some of the illustrious leaders of the debate. Ironically, by insisting too strongly on his division between theory and practice, Bowring has condemned critical legal scholars to the very armchair from which he sought to liberate them.

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In this vein, Rasulovs call that we should reshape the landscape of pop jurisprudence and pop political theory ... among the broader international-law minded public is well-taken, see Rasulov, supra note 2 at 282.

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