• Ten Theses on Marxism and Decolonisation
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Dossier no. 56

Tricontinental and Casa de las Américas logos

Violeta Parra (Chile), Untitled (unfinished), 1966. Embroidery on sackcloth, 136 x 200 cm.

The works of art in this dossier belong to Casa de las Américas’ Haydee Santamaría Art of Our America ( Nuestra América ) collection. Since its founding, Casa de las Américas has established close ties with a significant number of internationally renowned contemporary artists who have set visual arts trends in the region. Casa’s galleries have hosted temporary exhibitions including different artistic genres, expressions, and techniques by several generations of mainly Latin American and Caribbean artists. Many of these works, initially exhibited in Casa’s galleries, awarded prizes in its contests, and donated by the artists, have become part of the Haydee Santamaría Art of Our America collection, representing an exceptional artistic heritage.

Roberto Matta (Chile), Cuba es la capital (‘Cuba Is the Capital’), 1963. Soil and plaster on Masonite (mural), 188 x 340 cm. Located at the entrance to Casa de las Américas.

Roberto Matta (Chile), Cuba es la capital (‘Cuba Is the Capital’), 1963. Soil and plaster on Masonite (mural), 188 x 340 cm. Located at the entrance to Casa de las Américas.

Cultural Policy and Decolonisation in the Cuban Socialist Project

Abel prieto, director of casa de las américas.

The Cuban Revolution came about in a country subordinated to the US from all points of view. Although we had the façade of a republic, we were a perfect colony, exemplary in economic, commercial, diplomatic, and political terms, and almost in cultural terms.

Our bourgeoisie was constantly looking towards the North: from there, they imported dreams, hopes, fetishes, models of life. They sent their children to study in the North, hoping that they would assimilate the admirable competitive spirit of the Yankee ‘winners’, their style, their unique and superior way of settling in this world and subjugating the ‘losers’.

This ‘vice-bourgeoisie’, as Roberto Fernández Retamar baptised them, were not limited to avidly consuming whatever product of the US cultural industry fell into their hands. Not only that – at the same time, they collaborated in disseminating the ‘American way of life’ in the Ibero-American sphere and kept part of the profits for themselves. Cuba was an effective cultural laboratory at the service of the Empire, conceived to multiply the exaltation of the Chosen Nation and its world domination. Cuban actresses and actors dubbed the most popular American television series into Spanish, which would later flood the continent. In fact, we were among the first countries in the region to have television in 1950. It seemed like a leap forward, towards so-called ‘progress’, but it turned out to be poisoned. Very commercial Cuban television programming functioned as a replica of the ‘made in the USA’ pseudo-culture , with soap operas, Major League and National League baseball games, competition and participation programmes copied from American reality shows, and constant advertising. In 1940, the magazine Selections of the Reader’s Digest , published by a company of the same name, began to appear in Spanish in Havana with all of its poison. This symbol of the idealisation of the Yankee model and the demonisation of the USSR and of any idea close to emancipation was translated and printed on the island and distributed from here to all of Latin America and Spain.

The very image of Cuba that was spread internationally was reduced to a tropical ‘paradise’ manufactured by the Yankee mafia and its Cuban accomplices. Drugs, gambling, and prostitution were all put at the service of VIP tourism from the North. Remember that the Las Vegas project had been designed for our country and failed because of the revolution.

Fanon spoke of the sad role of the ‘national bourgeoisie’ – already formally independent from colonialism – before the elites of the old metropolis, ‘who happen to be tour­ists enamoured of exoticism, hunting, and casinos’. He added:

We only have to look at what has happened in Latin America if we want proof of the way the ex-colonised bourgeoisie can be transformed into ‘party’ organiser. The casinos in Havana and Mexico City, the beaches of Rio, Copacabana, and Acapulco, the young Brazilian and Mexican girls, the thirteen-year-old mestizas, are the scars of this depravation of the national bourgeoisie. 1

Our bourgeoisie, submissive ‘party organisers’ of the Yankees, did everything possible for Cuba to be culturally absorbed by their masters during the neocolonial republic. However, there were three factors that slowed down this process: the work of intellectual minorities that defended, against all odds, the memory and values of the nation; the sowing of Martí’s principles and patriotism among teachers in Cuban public schools; and the resistance of our powerful, mestizo, haughty, and ungovernable popular culture, nurtured by the rich spiritual heritage of African origin.

In his speech ‘History Will Absolve Me’, Fidel listed the six main problems facing Cuba. Among them, he highlighted ‘the problem of education’ and referred to ‘comprehensive education reform’ as one of the most urgent missions that the future liberated republic would have to undertake. 2 Hence, the educational and cultural revolution began practically from the triumph of 1 January 1959. On the 29 th of that same month, summoned by Fidel, a first detachment of three hundred teachers alongside one hundred doctors and other professionals left for the Sierra Maestra to bring education and health to the most remote areas. Around those same days, Camilo and Che launched a campaign to eradicate illiteracy among the Rebel Army troops since more than 80% of the combatants were illiterate.

On 14 September, the former Columbia Military Camp was handed over to the Ministry of Education so that it could build a large school complex there. The promise of turning barracks into schools was beginning to be fulfilled, and sixty-nine military fortresses became educational centres. On 18 September, Law No. 561 was enacted, creating ten thousand classrooms and accrediting four thousand new teachers. The same year, cultural institutions of great importance were created: the Cuban Institute of Cinematographic Art and Industry (ICAIC), the National Publishing House, the Casa de las Américas, and the National Theatre of Cuba, which has a department of folklore and an unprejudiced and anti-racist vision unprecedented in the country. All of these new revolutionary institutions were oriented towards a decolonised understanding of Cuban and universal culture.

But 1961 was the key year in which a profound educational and cultural revolution began in Cuba. This was the year when Eisenhower ruptured diplomatic relations with our country. This was the year when our foreign minister, Raúl Roa, condemned ‘the policy of harassment, retaliation, aggression, subversion, isolation, and imminent attack by the US against the Cuban government and people’ at the UN. 3 This was the year of the Bay of Pigs invasion and the relentless fight against the armed gangs financed by the CIA. This was the year when the US government, with Kennedy already at the helm, intensified its offensive to suffocate Cuba economically and isolate it from Nuestra Am é rica – Our America – and from the entire Western world. 4 1961 was also the year when Fidel proclaimed the socialist character of the revolution on 16 April, the eve of the Bay of Pigs invasion, as Roa exposed the plan that was set to play out the following day. This is something that – considering the influence of the Cold War climate and the McCarthyite, anti-Soviet, and anti-communist crusade on the island – showed that the young revolutionary process had been shaping, at incredible speed, cultural hegemony around anti-imperialism, sovereignty, social justice, and the struggle to build a radically different country. But it was also the year of the epic of the literacy campaign; of the creation of the National School of Art Instructors; of Fidel’s meetings with intellectuals and his founding speech on our cultural policy, ‘Words to the Intellectuals’; of the birth of the National Union of Writers and Artists of Cuba (UNEAC) and the National Institute of Ethnology and Folklore. 5

In 1999 in Venezuela – almost four decades later – Fidel summed up his thinking regarding the cultural and educational component in any true revolutionary process: ‘A revolution can only be the child of culture and ideas’. 6 Even if it makes radical changes, even if it hands over land to the peasants and eliminates large estates, even if it builds houses for those who survive in unhealthy neighbourhoods, even if it puts public health at the service of all, even if it nationalises the country’s resources and defends its sovereignty, a revolution will never be complete or lasting if it does not give a decisive role to education and culture. It is necessary to change human beings’ conditions of material life, and it is necessary to simultaneously change the human being, their conscience, paradigms, and values.

For Fidel, culture was never something ornamental or a propaganda tool – a mistake commonly made throughout history by leaders of the left. Rather, he saw culture as a transformative energy of exceptional scope, which is intimately linked to conduct, to ethics, and is capable of decisively contributing to the ‘human improvement’ in which Martí had so much faith. But Fidel saw culture, above all, as the only imaginable way to achieve the full emancipation of the people: it is what offers them the possibility of defending their freedom, their memory, their origins, and of undoing the vast web of manipulations that limit the steps they take every day. The educated and free citizen who is at the centre of Martí’s and Fidel’s utopia must be prepared to fully understand the national and international environment and to decipher and circumvent the traps of the machinery of cultural domination.

In 1998, at the 6 th Congress of the UNEAC, Fidel focused on the topic ‘related to globalisation and culture’. So-called ‘neoliberal globalisation’, he said, is ‘the greatest threat to culture – not only ours, but the world’s’. He explained how we must defend our traditions, our heritage, our creation, against ‘imperialism’s most powerful instrument of domination’. And, he concluded, ‘everything is at stake here: national identity, homeland, social justice, revolution, everything is at stake. These are the battles we have to fight now’. 7 This is, of course, about ‘battles’ against cultural colonisation, against what Frei Betto calls ‘globo-colonisation’, against a wave that can liquidate our identity and the revolution itself.

Enrique Tábara (Ecuador), Coloquio de frívolos (‘Colloquium of the Frivolous’), 1982. Acrylic on canvas,140.5 x 140.5 cm.

Enrique Tábara (Ecuador), Coloquio de frívolos (‘Colloquium of the Frivolous’), 1982. Acrylic on canvas,140.5 x 140.5 cm.

Fidel was already convinced that, in education, in culture, in ideology, there are advances and setbacks. No conquest can be considered definitive. That is why he returns to the subject of culture in his shocking speech on 17 November 2005 at the University of Havana. 8 The media machinery, together with incessant commercial propaganda, Fidel warns us, come to generate ‘conditioned responses’. ‘The lie’, he says, ‘affects one’s knowledge’, but ‘the conditioned response affects the ability to think’. 9 In this way, Fidel continued, if the Empire says ‘Cuba is bad’, then ‘all the exploited people around the world, all the illiterate people, and all those who don’t receive medical care or education or have any guarantee of a job or of anything’ repeat that ‘the Cuban Revolution is bad’. 10 Hence, the diabolical sum of ignorance and manipulation engenders a pathetic creature: the poor right-winger, that unhappy person who gives his opinion and votes and supports his exploiters.

‘Without culture’, Fidel repeated, ‘no freedom is possible’. 11 We revolutionaries, according to him, are obliged to study, to inform ourselves, to nurture our critical thinking day by day. This cultural education, together with essential ethical values, will allow us to liberate ourselves definitively in a world where the enslavement of minds and consciences predominates. His call to ‘emancipat[e] ourselves by ourselves and with our own efforts’ is equivalent to saying that we must decolonise ourselves with our own efforts. 12 And culture is, of course, the main instrument of that decolonising process of self-learning and self-emancipation.

In Cuba, we are currently more contaminated by the symbols and fetishes of ‘globo-colonisation’ than we have been at other times in our revolutionary history. We must combat the tendency to underestimate these processes, and we must work in two fundamental directions: intentionally promoting genuine cultural options and fostering a critical view of the products of the hegemonic entertainment industry. It is essential to strengthen the effective coordination of institutions and organisations, communicators, teachers, instructors, intellectuals, artists, and other actors who contribute directly or indirectly to the cultural education of our people. All revolutionary forces of culture must work together more coherently. We must turn the meaning of anti-colonial into an instinct.

Introduction

In 1959, the Cuban revolutionary leader Haydee Santamaría (1923–1980) arrived at a cultural centre in the heart of Havana. This building, the revolutionaries decided, would be committed to promoting Latin American art and culture, eventually becoming a beacon for the progressive transformation of the hemisphere’s cultural world. Renamed Casa de las Américas (‘Home of the Americas’), it would become the heartbeat of cultural developments from Chile to Mexico. Art saturates the walls of the house, and in an adjacent building sits the massive archive of correspondence and drafts from the most significant writers of the past century. The art from Casa adorns this dossier. The current director of Casa, Abel Prieto – whose words open this dossier – is a novelist, a cultural critic, and a former minister of culture. His mandate is to stimulate discussion and debate in the country.

Over the course of the past decade, Cuba’s intellectuals have been gripped by the debate over decolonisation and culture. Since 1959, the Cuban revolutionary process has – at great cost – established the island’s political sovereignty and has struggled against centuries of poverty to cement its economic sovereignty. From 1959 onwards, under the leadership of the revolutionary forces, Cuba has sought to generate a cultural process that allows the island’s eleven million people to break with the cultural suffocation which is the legacy of both Spanish and US imperialism. Is Cuba, six decades since 1959, able to say that it is sovereign in cultural terms? The balance sheet suggests that the answer is complex since the onslaught of US cultural and intellectual production continues to hit the island like its annual hurricanes.

To that end, Casa de las Américas has been holding a series of encounters on the issue of decolonisation. In July 2022, Vijay Prashad, the director of Tricontinental: Institute for Social Research, delivered a lecture there that built upon the work being produced by the institute. Dossier no. 56, Ten Theses on Marxism and Decolonisation , draws from and expands upon the themes of that talk.

Antonio Seguí (Argentina), Untitled, 1965. Oil on canvas, 200 x 249 cm.

Antonio Seguí (Argentina), Untitled , 1965. Oil on canvas, 200 x 249 cm.

Thesis One: The End of History . The collapse of the USSR and the communist state system in Eastern Europe in 1991 came alongside a terrible debt crisis in the Global South that began with Mexico’s default in 1982. These two events – the demise of the USSR and the weakness of the Third World Project – were met with the onslaught of US imperialism and a US-driven globalisation project in the 1990s. For the left, this was a decade of weakness as our left-wing traditions and organisations experienced self-doubt and could not easily advance our clarities around the world. History had ended, said the ideologues of US imperialism, with the only possibility forward being the advance of the US project. The penalty inflicted upon the left by the surrender of Soviet leadership was heavy and led not only to the shutting down of many left parties, but also to the weakened confidence of millions of people with the clarities of Marxist thought.

Thesis Two: The Battle of Ideas . During the 1990s, Cuban President Fidel Castro called upon his fellow Cubans to engage in a ‘battle of ideas’, a phrase borrowed from The German Ideology (1846) by Karl Marx and Friedrich Engels. 1 What Castro meant by this phrase is that people of the left must not cower before the rising tide of neoliberal ideology but must confidently engage with the fact that neoliberalism is incapable of solving the basic dilemmas of humanity. For instance, neoliberalism has no answer to the obstinate fact of hunger: 7.9 billion people live on a planet with food enough for 15 billion, and yet roughly 3 billion people struggle to eat. This fact can only be addressed by socialism and not by the charity industry. 2 The Battle of Ideas refers to the struggle to prevent the conundrums of our time – and the solutions put forth to address them – from being defined by the bourgeoisie. Instead, the political forces for socialism must seek to offer an assessment and solutions far more realistic and credible. For instance, Castro spoke at the United Nations in 1979 with great feeling about the ideas of ‘human rights’ and ‘humanity’:

There is often talk of human rights, but it is also necessary to speak of the rights of humanity. Why should some people walk around barefoot so that others can travel in luxurious automobiles? Why should some live for 35 years so that others can live for 70? Why should some be miserably poor so that others can be overly rich? I speak in the name of the children in the world who do not have a piece of bread. I speak in the name of the sick who do not have medicine. I speak on behalf of those whose right to life and human dignity has been denied. 3

When Castro returned to the Battle of Ideas in the 1990s, the left was confronted by two related tendencies that continue to create ideological problems in our time:

  • Post-Marxism. An idea flourished that Marxism was too focused on ‘grand narratives’ (such as the importance of transcending capitalism for socialism) and that fragmentary stories would be more precise for understanding the world. The struggles of the working class and peasantry to gain power in society and over state institutions were seen as just another false ‘grand narrative’, whereas the fragmented politics of the non-governmental organisations were seen as more feasible. The retreat from power into service delivery and into a politics of reform was made in the name of going beyond Marx. But this argument – to go beyond Marx – was really, as the late Aijaz Ahmad pointed out, an argument to return to the period before Marx, to neglect the facts of historical materialism and the zig-zag possibility of building socialism as the historical negation of capitalist brutality and decadence. Post-Marxism was a return to idealism and to perfectionism.
  •   Post-colonialism . Sections of the left began to argue that the impact of colonialism was so great that no amount of transformation would be possible, and that the only answer to what could come after colonialism was a return to the past. They treated the past, as the Marxist José Carlos Mariátegui argued in 1928 about the idea of indigenism, as a destination and not as a resource. Several strands of post-colonial theory developed, some of them offering genuine insights often drawn from the best texts of patriotic intellectuals of the new post-colonial nations and of the national liberation revolutionary tradition (anchored by writers such as Frantz Fanon). By the 1990s, the post-colonial tradition, which had previously been committed to revolutionary change in the Third World, was now swept up in North Atlantic university currents that favoured revolutionary impossibility. Afro-pessimism, one part of this new tradition, suggested – in its most extreme version – a desolate landscape of ‘social death’ for people of African descent, with no possibility of change. Decolonial thought or decolonialidad trapped itself by European thought, accepting the claim that many human concepts – such as democracy – are defined by the colonial ‘matrix of power’ or ‘matrix of modernity’. The texts of decolonial thought returned again and again to European thought, unable to produce a tradition that was rooted in the anti-colonial struggles of our time. The necessity of change was suspended in these variants of post-colonialism.

The only real decolonisation is anti-imperialism and anti-capitalism. You cannot decolonise your mind unless you also decolonise the conditions of social production that reinforce the colonial mentality. Post-Marxism ignores the fact of social production as well as the need to build social wealth that must be socialised. Afro-pessimism suggests that such a task cannot be accomplished because of permanent racism. Decolonial thought goes beyond Afro-pessimism but cannot go beyond post-Marxism, failing to see the necessity of decolonising the conditions of social production.

Antonio Martorell (Puerto Rico), Silla (‘Chair’), n.d., edition unknown. Woodcut. 100 x 62 cm

Antonio Martorell (Puerto Rico), Silla (‘Chair’), n.d., edition unknown. Woodcut. 100 x 62 cm.

Thesis Three: A Failure of Imagination. In the period from 1991 to the early 2000s, the broad tradition of national liberation Marxism felt flattened, unable to answer the doubts sown by post-Marxism and post-colonial theory. This tradition of Marxism no longer had the kind of institutional support provided in an earlier period, when revolutionary movements and Third World governments assisted each other and when even the United Nations’ institutions worked to advance some of these ideas. Platforms that developed to germinate left forms of internationalism – such as the World Social Forum – seemed to be unwilling to be clear about the intentions of peoples’ movements. The slogan of the World Social Forum, for instance, was ‘another world is possible’, which is a weak statement, since that other world could just as well be defined by fascism. There was little appetite to advance a slogan of precision, such as ‘socialism is necessary’.

One of the great maladies of post-Marxist thought – which derived much of its ammunition from forms of anarchism – has been the purist anxiety about state power. Instead of using the limitations of state power to argue for better management of the state, post-Marxist thought has argued against any attempt to secure power over the state. This is an argument made from privilege by those who do not have to suffer the obstinate facts of hunger and illiteracy, who claim that small-scale forms of mutual aid or charity are not ‘authoritarian’, like state projects to eradicate hunger. This is an argument of purity that ends up renouncing any possibility of abolishing the obstinate facts of hunger and other assaults on human dignity and well-being. In the poorer countries, where small-scale forms of charity and mutual aid have a negligible impact on the enormous challenges before society, nothing less than the seizure of state power and the use of that power to fundamentally eradicate the obstinate facts of inequality and wretchedness is warranted.

To approach the question of socialism requires close consideration of the political forces that must be amassed in order to contest the bourgeoisie for ideological hegemony and for control over the state. These forces experienced a pivotal setback when neoliberal globalisation reorganised production along a global assembly line beginning in the 1970s, fragmenting industrial production across the globe. This weakened trade unions in the most important, high-density sectors and invalidated nationalisation as a possible strategy to build proletarian power. Disorganised, without unions, and with long commute times and workdays, the entire international working class found itself in a situation of precariousness. 4 The International Labour Organisation refers to this sector as the precariat – the precarious proletariat. Disorganised forces of the working class and the peasantry, of the unemployed and the barely employed, find it virtually impossible to build the kind of theory and confidence out of their struggles needed to directly confront the forces of capital.

One of the key lessons for working-class and peasant movements comes from the struggles being incubated in India. For the past decade, there have been general strikes that have included up to 300 million workers annually. In 2020–2021, millions of farmers went on a year-long strike that forced the government to retreat from its new laws to uberise agricultural work. How were the farmers’ movement and the trade union movement able to do this in a context in which there is very low union density and over 90% of the workers are in the informal sector? 5 Because of the fights led by informal workers – primarily women workers in the care sector – trade unions began to take up the issues of informal workers – again, mainly women workers – as issues of the entire trade union movement over the course of the past two decades. Fights for permanency of tenure, proper wage contracts, dignity for women workers, and so on produced a strong unity between all the different fractions of workers. The main struggles that we have seen in India are led by these informal workers, whose militancy is now channelled through the organised power of the trade union structures. More than half of the global workforce is made up of women – women who do not see issues that pertain to them as women’s issues , but as issues that all workers must fight for and win. This is much the same for issues pertaining to workers’ dignity along the lines of race, caste, and other social distinctions. Furthermore, unions have been taking up issues that impact social life and community welfare outside of the workplace, arguing for the right to water, sewage connections, education for children, and to be free from intolerance of all kinds. These ‘community’ struggles are an integral part of workers’ and peasants’ lives; by entering them, unions are rooting themselves in the project of rescuing collective life, building the social fabric necessary for the advance towards socialism.

Alirio Palacios (Venezuela), Muro público (‘Public Wall’), 1978. Oil on canvas, 180 x 200 cm.

Alirio Palacios (Venezuela), Muro público (‘Public Wall’), 1978. Oil on canvas, 180 x 200 cm.

Thesis Four: Return to the Source . It is time to recover and return to the best of the national liberation Marxist tradition. This tradition has its origins in Marxism-Leninism, one that was always widened and deepened by the struggles of hundreds of millions of workers and peasants in the poorer nations. The theories of these struggles were elaborated by people such as José Carlos Mariátegui, Ho Chi Minh, EMS Namboodiripad, Claudia Jones, and Fidel Castro. There are two core aspects to this tradition:

  • From the words ‘national liberation’, we get the key concept of sovereignty . The territory of a nation or a region must be sovereign against imperialist domination.
  • From the tradition of Marxism, we get the key concept of dignity . The fight for dignity implies a fight against the degradation of the wage system and against the old, wretched, inherited social hierarchies (including along the lines of race, gender, sexual orientation, and so on).

Thesis Five: ‘Slightly Stretched’ Marxism . Marxism entered the anti-colonial struggles not through Marx directly, but more accurately through the important developments that Vladimir Lenin and the Communist International made to the Marxist tradition. When Fanon said that Marxism was ‘slightly stretched’ when it went out of its European context, it was this stretching that he had in mind. 6 Five key elements define the character of this ‘slightly stretched’ Marxism across a broad range of political forces:

  • It was clear to the early Marxists that liberalism would not solve the dilemmas of humanity, the obstinate facts of life under capitalism (such as hunger and ill-health). Not one capitalist state project put the solution to these dilemmas at the heart of its work, leaving it instead to the charity industry. The capitalist state projects pushed the idea of ‘human rights’ to abstraction; Marxists, on the other hand, recognised that only if these dilemmas are transcended can human rights be established in the world.
  • The modern form of industrial production is the precondition for this transcendence because only it can generate sufficient social wealth that can be socialised. Colonialism did not permit the development of productive forces in the colonised world, thereby making it impossible to create sufficient social wealth in the colonies to transcend these dilemmas.
  • The socialist project in the colonies had to fight against colonialism (and, therefore, for sovereignty) as well as capitalism and its social hierarchies (and, therefore, for dignity). These remain the two key aspects of national liberation Marxism.
  • Due to the lack of development of industrial capitalism in the colonies, and therefore of a large enough number of industrial workers (the proletariat), the peasantry and agricultural workers had to be a key part of the historical bloc of socialism.
  • It is important to register that socialist revolutions took place in the poorer parts of the world – Russia, Vietnam, China, Cuba – and not in the richer parts, where the productive forces had been better developed. The dual task of the revolutionary forces in poorer states that had won independence and instituted left governments was to build the productive forces and to socialise the means of production. The governments in these countries, shaped and supported by public action, had a historical mission far more complex than anything envisaged by the first generation of Marxists. A new, boundless Marxism emerged from these places, where an experimental attitude towards socialist construction emerged. However, many of these developments in socialist construction were not elaborated into theory, which meant that the theoretical tradition of national liberation Marxism was not fully available to contest both the post-Marxist and post-colonial assault on socialist praxis in the Third World.

Thesis Six: Dilemmas of Humanity . Reports come regularly about the terrible situation facing the world, from hunger and illiteracy to the ever more frequent outcomes of the climate catastrophe. Social wealth that could be spent to address these deep dilemmas of humanity is squandered on weapons and tax havens. The United Nations’ 17 Sustainable Development Goals (SDGs) to end hunger and promote peace would require an infusion of $4.2 trillion per year, but, as it stands, an infinitesimal fraction of this amount is spent to address these goals. 7 With the pandemic and galloping inflation, even less money will go towards SDGs, and benchmarks measuring human well-being, sovereignty, and dignity will slip further and further away. Hunger, the greatest dilemma of humanity, is no longer within sight of being eradicated (except in China, where absolute poverty was ended in 2021). 8 It is estimated that around 3 billion people now struggle with various forms of daily hunger. 9

Take the case of Zambia and the fourth SDG to eradicate illiteracy, for example. Approximately 60% of the children in classes 1 to 4 in the Copperbelt cannot read. 10 This is a region that produces much of the world’s copper, which is essential to our electronics. The parents of these children bring the copper to the world market, but their children cannot read. Neither post-Marxism nor post-colonialism addresses the fact of illiteracy or these parents’ determination for their children to be able to read. The theory of national liberation Marxism, rooted in sovereignty and dignity, however, does address these questions: it demands that Zambia control copper production and receive higher royalty payments (sovereignty), and it demands that the Zambian working class take a greater share of the surplus value (dignity). Greater sovereignty and dignity are pathways to address the dilemmas facing humanity. But rather than spend social wealth on these elementary advances, those who own property and exercise privilege and power spend over $2 trillion per year on weapons and many trillions on security forces (from the military to the police). 11

Hervé Télémaque (Haiti), Fait divers, 1962. Oil on canvas, 130 x 195 cm.

Hervé Télémaque (Haiti), Fait divers , 1962. Oil on canvas, 130 x 195 cm.

Thesis Seven: The Rationality of Racism and Patriarchy. It is important to note that, under the conditions of capitalism, the structures of racism and patriarchy remain rational. Why is this the case? In Capital (1867), Marx detailed two forms for the extraction of surplus value and hinted at a third form. The first two forms (absolute surplus value and relative surplus value) were described and analysed in detail, pointing out how the theft of time over the course of the working day extracts absolute surplus value from the waged worker and how productivity gains both shorten the time needed for workers to produce their wages and increase the amount of surplus produced by them (relative surplus value). Marx also suggested a third form of extraction, writing that, in some situations, workers are paid less than would be justified by any civilised understanding of wages at that historical juncture. He noted that capitalists try to push ‘the wage of the worker down below the value of his labour power’, but he did not discuss this form further because of the importance for his analysis that labour power must be bought and sold at full value. 12

This third consideration, which we call super-exploitation, is not immaterial for our analysis since it is central to the discussion of imperialism. How are the suppression of wages and the refusal to increase royalty payments for raw material extraction justified? By a colonial argument that, in certain parts of the world, people have lower expectations for life and therefore their social development can be neglected. This colonial argument applies equally to the theft of wages from women who perform care work, which is either unpaid or grossly underpaid on the grounds that it is ‘women’s work’. 13 A socialist project is not trapped by the structures of racism and patriarchy since it does not require these structures to increase the capitalist’s share of surplus value. However, the existence of these structures over centuries, deepened by the capitalist system, has created habits that are difficult to overturn merely by legislation. For that reason, a political, cultural, and ideological struggle must be waged against the structures of racism and patriarchy and must be treated with as much importance as the class struggle.

Thesis Eight: Rescue Collective Life . Neoliberal globalisation vanquished the sense of collective life and deepened the despair of atomisation through two connected processes:

  • by weakening the trade union movement and the socialistic possibilities that come within the public action and workplace struggle rooted in trade unionism.
  • by substituting the idea of the citizen with the idea of the consumer – in other words, the idea that human beings are principally consumers of goods and services, and that human subjectivity can be best appreciated through a desire for things.

The breakdown of social collectivity and the rise of consumerism harden despair, which morphs into various kinds of retreat. Two examples of this are: a) a retreat into family networks that cannot sustain the pressures placed upon them by the withdrawal of social services, the increasing burden of care work on the family, and ever longer commute times and workdays; b) a move towards forms of social toxicity through avenues such as religion or xenophobia. Though these avenues provide opportunities to organise collective life, they are organised not for human advancement, but for the narrowing of social possibility.

How does one rescue collective life? Forms of public action rooted in social relief and cultural joy are an essential antidote to this bleakness. Imagine days of public action rooted in left traditions taking place each week and each month, drawing more and more people to carry out activities together that rescue collective life. One such activity is Red Books Day, which was inaugurated on 21 February 2020 by the International Union of Left Publishers, the same day that Marx and Engels published The Communist Manifesto in 1848. In 2020, the first Red Books Day, a few hundred thousand people around the world went into public places and read the manifesto in their different languages, from Korean to Spanish. In 2021, due to the pandemic, most of the events went online and we cannot really say how many people participated in Red Books Day, but, in 2022, nearly three-quarters of a million people joined in the various activities.

Part of rescuing collective life was vividly displayed during the pandemic when trade unions, youth organisations, women’s organisations, and student unions took to the public domain in Kerala (India) to build sinks, sew masks, establish community kitchens, deliver food, and conduct house-to-house surveys so that each person’s needs could be taken into account. 14

thesis law 2014 marxism

Antonio Berni (Argentina), Juanito Laguna , n.d. Painted wood and metal collage (triptych), 220 x 300 cm.

Thesis Nine: The Battle of Emotions . Fidel Castro provoked a debate in the 1990s around the concept of the Battle of Ideas, the class struggle in thought against the banalities of neoliberal conceptions of human life. A key part of Fidel’s speeches from this period was not just what he said but how he said it, each word suffused with the great compassion of a man committed to the liberation of humanity from the tentacles of property, privilege, and power. In fact, the Battle of Ideas was not merely about the ideas themselves, but also about a ‘battle of emotions’, an attempt to shift the palate of emotions from a fixation on greed to considerations of empathy and hope.

One of the true challenges of our time is the bourgeoisie’s use of the culture industries and the institutions of education and faith to divert attention away from any substantial discussion about real problems – and about finding common solutions to social dilemmas – and towards an obsession with fantasy problems. In 1935, the Marxist philosopher Ernst Bloch called this the ‘swindle of fulfilment’, the seeding of a range of fantasies to mask their impossible realisation. The benefit of social production, Bloch wrote, ‘is reaped by the big capitalist upper stratum, which employs gothic dreams against proletarian realities’. 15 The entertainment industry erodes proletarian culture with the acid of aspirations that cannot be fulfilled under the capitalist system. But these aspirations are enough to weaken any working-class project.

A degraded society under capitalism produces a social life that is suffused with atomisation and alienation, desolation and fear, anger and hate, resentment and failure. These are ugly emotions that are shaped and promoted by the culture industries (‘you can have it too!’), educational establishments (‘greed is the prime mover’), and neo-fascists (‘hate immigrants, sexual minorities, and anyone else who denies you your dreams’). The grip of these emotions on society is almost absolute, and the rise of neo-fascists is premised upon this fact. Meaning feels emptied, perhaps the result of a society of spectacles that has now run its course.

From a Marxist perspective, culture is not seen as an isolated and timeless aspect of human reality, nor are emotions seen as a world of their own or as being outside of the developments of history. Since human experiences are defined by the conditions of material life, ideas of fate will linger on as long as poverty is a feature of human life. If poverty is transcended, then fatalism will have a less secure ideological foundation, but it does not automatically get displaced. Cultures are contradictory, bringing together a range of elements in uneven ways out of the social fabric of an unequal society that oscillates between reproducing class hierarchy and resisting elements of social hierarchy. Dominant ideologies suffuse culture through the tentacles of ideological apparatuses like a tidal wave, overwhelming the actual experiences of the working class and the peasantry. It is, after all, through class struggle and through the new social formations created by socialist projects that new cultures will be created – not merely by wishful thinking.

Tilsa Tsuchiya (Peru), Pintura N° 1 (‘Painting N° 1’), 1972. Oil on canvas, 90 x 122 cm.

Tilsa Tsuchiya (Peru), Pintura N° 1 (‘Painting N° 1’), 1972. Oil on canvas, 90 x 122 cm.

It is important to recall that, in the early years of each of the revolutionary processes – from Russia in 1917 to Cuba in 1959 – cultural efflorescence was saturated with the emotions of joy and possibility, of intense creativity and experimentation. It is this sensibility that offers a window into something other than the ghoulish emotions of greed and hatred.

Thesis Ten: Dare to Imagine the Future . One of the enduring myths of the post-Soviet era is that there is no possibility of a post-capitalist future. This myth came to us from within the triumphalist US intellectual class, whose ‘end of history’ sensibility helped to strengthen orthodoxy in such fields as economics and political theory, preventing open discussions about post-capitalism. Even when orthodox economics could not explain the prevalence of crises, including the total economic collapse in 2007–08, the field itself retained its legitimacy. These myths were made popular by Hollywood films and television shows, where disaster and dystopian films suggested planetary destruction rather than socialist transformation. It is easier to imagine the end of the earth than a socialist world.

During the economic collapse, the phrase ‘too big to fail’ settled on the public consciousness, reinforcing the eternal nature of capitalism and the dangers of even trying to shake its foundations. The system stood at a standstill. Austerity growled at the precarious. Small businesses crumpled for lack of credit. And yet, there was no mass consideration of going beyond capitalism. World revolution was not seen on the immediate horizon. This partial reality suffocated so much hope in the possibility of going beyond this system, a system – too big to fail – that now seems eternal. Our traditions argue against pessimism, making the point that hope must structure our interventions from start to finish. But what is the material basis for this hope? This basis can be found on three levels:

  • The obstinate facts of hunger and illiteracy, houselessness and indignity, cannot be made invisible. Neither will those who are denied their basic rights be silenced, nor will their material conditions disappear if these obstinate facts are not addressed. Desolation and anger are the products of this denial.
  • Massive advances in global production – both in agriculture and industry as well as in the service sector – have enabled us to imagine a world that transcends necessity and opens the door to freedom. One cannot be free simply by a legal edict. Freedom requires that the obstinate facts of life under capitalism be transcended. For decades, we have lived in a world with the capacity to meet the needs of humanity.
  • These massive advances in global production took place not only because of improvements in science and technology, but decisively because of the socialisation of labour. What is known as globalisation sees the entire process from the standpoint of capital and increased returns to scale. What it does not acknowledge is that these massive advances in global production took place because workers now labour with each other across oceans and that this socialisation of labour demonstrates the integration of the international working class. This socialisation of labour runs against the narrow, suffocating boundaries of private property, which hold back further advances for its own petty gains. The clash between the socialisation of labour and private property deepens the struggles to socialise property – the basis for modern socialism – as Marx predicted.

Capitalism has already failed. It cannot address the basic questions of our times, these obstinate facts – such as hunger and illiteracy – that stare us in the face. It is not enough to be alive. One must be able to live and to flourish. That is the mood that demands a revolutionary transformation.

We need to recover our tradition of national liberation Marxism but also elaborate the theory of our tradition from the work of our movements. We need to draw more attention to the theories of Ho Chi Minh and Fidel, EMS Namboodiripad and Claudia Jones. They did not only do , but they also produced innovative theories. These theories need to be developed and tested in our own contemporary reality, building our Marxism not out of the classics alone – which are useful – but out of the facts of our present. Lenin’s ‘concrete analysis of the concrete conditions’ requires close attention to the concrete, the real, the historical facts. We need more factual assessments of our times, a closer rendition of contemporary imperialism that is imposing its military and political might to prevent the necessity of a socialist world. This is precisely the agenda of Tricontinental: Institute for Social Research, of the almost thirty research institutes with which we work closely through the Network of Research Institute, and of the more than 200 political movements whose mass lines inform the development of Tricontinental’s research agenda through the International Peoples’ Assembly.

Certainly, socialism is not going to appear magically. It must be fought for and built, our struggles deepened, our social connections tightened, our cultures enriched. Now is the time for a united front, to bring together the working class and the peasantry as well as allied classes, to increase the confidence of workers, and to clarify our theory. To unite the working class and the peasantry as well as allied classes requires the unity of all left and progressive forces. Our divides in this time of great danger must not be central; our unity is essential. Humanity demands it.

Osmond Watson (Jamaica), Spirit of Festival, 1972. Watercolor and varnished oil on paper, 104 x 78 cm.

Osmond Watson (Jamaica), Spirit of Festival , 1972. Watercolor and varnished oil on paper, 104 x 78 cm.

1 Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 2004), 101. 2 Fidel Castro, La historia me absolverá [History Will Absolve Me] (Havana: Editorial de Ciencias Sociales, 2007). 3 Raúl Roa, ‘Fundamentos, cargos y pruebas de la denuncia de Cuba’, In  Raúl Roa: Canciller de la dignidad  (La Habana: Ediciones Políticas, 1986 [1961]).

4 Translator’s note: Nuestra América is a concept stemming from Cuban national hero Jose Martí’s 1891 essay on Latin American nationalism calling for unity among nations to foment a Pan-Latin American identity opposed to the cultural values of Europe and the United States.

5 Fidel Castro, ‘Word to the Intellectuals’, Speech at the conclusion of meetings with Cuban intellectuals held at the National Library on 16, 23, and 30 June 1961, http://www.fidelcastro.cu/es/audio/palabras-los-intelectuales.

6 Fidel Castro, A Revolution Can Only Be the Child of Culture and Ideas (Havana: Editora Política, 1999), http://www.fidelcastro.cu/en/libros/revolution-can-only-be-child-culture-and-ideas.

7 Abel Prieto, ‘Sin cultura no hay libertad posible’. Notas sobre las ideas de Fidel en torno a la cultura’ [‘Without Culture There Is No Possible Freedom’: Notes on Fidel’s Ideas About Culture], La Ventana , 12 August 2021, http://laventana.casa.cult.cu/index.php/2022/08/12/sin-cultura-no-hay-libertad-posible-notas-sobre-las-ideas-de-fidel-en-torno-a-la-cultura/.

8 Fidel Castro, Speech delivered at the Commemoration of the 60 th Anniversary of his admission to University of Havana, Aula Magna, University of Havana, 17 November 2005, http://www.fidelcastro.cu/en/discursos/speech-delivered-commemoration-60th-anniversary-his-admission-university-havana-aula-magna.

9 Today, with the use of social networks in electoral campaigns and in subversive projects, this very acute observation by Fidel about ‘conditioned responses’ carries significant weight.

10 Castro, Speech at the Commemoration of the 60 th Anniversary of his admission to University of Havana.

11 Fidel Castro, ‘Without Culture There Is No Freedom Possible’, Key address at the opening ceremony of the 18 th Havana International Ballet Festival, 19 October 2002, http://www.fidelcastro.cu/en/fragmento-portada/october-19-2002-0.

12 Fidel Castro, ‘Concept of Revolution’, Speech at the mass rally on International Workers’ Day at Revolution Square, 1 May 2000, http://www.cuba.cu/gobierno/discursos/2000/ing/f010500i.html.

1 Karl Marx and Friedrich Engels, The German Ideology (Moscow: Progress Publishers, 1968), 38. 2 Food and Agriculture Organisation, Building a Common Vision for Sustainable Food and Agriculture. Principles and Approaches (Rome: FAO, 2014); FAO, IFAD, UNICEF, WFP and WHO, The State of Food Security and Nutrition in the World 2022 : Repurposing Food and Agricultural Policies To Make Healthy Diets More Affordable (Rome: FAO, 2022), vi. 3 Fidel Castro, Statement at the UN General Assembly, in capacity of NAM President, 12 October 1979, https://misiones.cubaminrex.cu/en/articulo/fidel-castro-human-rights-statement-un-general-assembly-capacity-nam-president-12-october .

4 Tricontinental: Institute for Social Research, In the Ruins of the Present , working document no. 1, 1 March 2018, https://thetricontinental.org/working-document-1/ .

5 Govindan Raveendran and Joann Vanek, ‘Informal Workers in India: A Statistical Profile’, Statistical Brief 24 (Women in Informal Employment: Globalising and Organising, August 2020), 1; Tricontinental: Institute for Social Research,  The Farmers’ Revolt in India , dossier 41, 14 June 2021, https://thetricontinental.org/dossier-41-india-agriculture/.

6 Frantz Fanon, The Wretched of the Earth , trans. Richard Philcox (New York: Grove Press), 5.

7 Organisation for Economic Cooperation and Development, ‘Global Outlook on Financing for Sustainable Development 2021’, 9 November 2020, https://www.oecd.org/newsroom/covid-19-crisis-threatens-sustainable-development-goals-financing.htm .

8 Tricontinental: Institute for Social Research,  Serve the People: The Eradication of Extreme Poverty in China , 23 July 2021,  https://thetricontinental.org/studies-1-socialist-construction/ .

9 FAO et al., The State of Food Security , vi.

10 Lusaka Times, ‘Over 60% Copperbelt Province Lower Primary Pupils Can’t Read and Write – PEO’, Lusaka Times , 18 January 2018, https://www.lusakatimes.com/2018/01/27/60-copperbelt-province-lower-primary-pupils-cant-read-write-peo/ .

11 Stockholm International Peace Research Institute, ‘World Military Expenditure Passes $2 Trillion for First Time’, SIPRI , 25 April 2022, https://www.sipri.org/media/press-release/2022/world-military-expenditure-passes-2-trillion-first-time .

12 Karl Marx, Capital: A Critique of Political Economy – Volume I , trans. Ben Fowkes (London: Penguin Books, 2004), 670.

13 Tricontinental: Institute for Social Research, Uncovering the Crisis: Care Work in the Time of Coronavirus , dossier no. 38, 7 March 2021, https://thetricontinental.org/dossier-38-carework/ .

14 Tricontinental: Institute for Social Research, CoronaShock and Socialism , CoronaShock no. 3, https://thetricontinental.org/wp-content/uploads/2020/07/20200701_Coronashock-3_EN_Web.pdf .

15  Ernst Bloch, Heritage of Our Times , trans. Neville and Stephen Plaice (Berkeley; Los Angeles: University of California Press, 1991), 103.

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Introduction: Marx, Ethics and Ethical Marxism

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  • Lawrence Wilde 2  

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Least of all must a philosophy be accepted as a philosophy by virtue of an authority or of good faith, be the authority even that of a people and the faith that of centuries. The proof can be provided only by expounding its essence (Karl Marx). 1

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Karl Marx, ‘Notebooks on Epicurean Philosophy’ in Karl Marx and Frederick Engels, Collected Works , Vol. 1 (London: Lawrence & Wishart, 1975), p. 506. Further references throughout the book will be to CW followed by the volume number.

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Harry van der Linden, Kantian Ethics and Socialism (Indianapolis: Hackett, 1988). Tom Bottomore and Patrick Goode (eds), AustroMarxism (Oxford: Oxford University Press, 1978), Introduction and Part One.

For a short review of the progress of ethical debate within Marxism see Agnes Heller, ‘The Legacy of Marxian Ethics Today’, in Praxis International 1 (4), 1982. Heller’s own position is a fusion of Marx and Kant, although she acknowledges that this approach was specifically rejected by Marx (p. 362); also Steven Lukes, Marxism and Morality (New York: Oxford University Press and Oxford: Clarendon Press, 1985), pp. 14–26.

Richard Norman, The Moral Philosophers: An Introduction to Ethics (Oxford: Clarendon Press, 1983), p. 8 — Norman points out that Freud’s work poses a similar challenge.

The first complete edition of the Manuscripts in Russian did not appear in the Soviet Union until 1956 — Ernest Mandel, The Formation of the Economic Thought of Karl Marx (London: New Left Books, 1977), p. 186n.

Martin Nicolaus, foreword to Karl Marx, Grundrisse (Harmondsworth: Penguin, 1973), p. 7.

Lucio Colletti, Introduction to Karl Marx, Early Writings (Harmondsworth: Penguin, 1975).

On Engels, see Terrell Carver, Marx and Engels: The Intellectual Relationship (Sussex: Harvester Wheatsheaf, 1983); on Kautsky, Massimo Salvadori, Karl Kautsky and the Socialist Revolution, 1880–1938 (London: 1979).

‘It is impossible completely to understand Marx’s Capital , and especially its first chapter, without having thoroughly studied and understood the whole of Hegel’s Logic. Consequently, half a century later none of the Marxists understood Marx.’ — V. I. Lenin, ‘Philosophical Notebooks’ (1915) in Collected Works , Vol. 38 (London: Lawrence & Wishart, 1972), p. 180; Marx acknowledged the methodological usefulness of Hegel’s Logic in 1858 — see CW 40, p. 249.

Georgy Lukács, History and Class Consciousness (London: Merlin, 1971), pp. 24n and 132–3

Karl Korsch, Marxism and Philosophy (London: New Left Books, 1970, p. 69n). The use of footnotes for such important observations indicates the strength of the prevailing orthodoxy that the view of Marx and Engels must be the same.

Quoted by Fred Halliday in his introduction to Korsch’s Marxism and Philosophy , pp. 14–15; see also Douglas Kellner’s ‘Korsch and Communism’ in his edition of Karl Korsch: Revolutionary Theory (Austin and London: University of Texas Press, 1977).

Andrew Arato and Paul Breines, The Young Lukács and the Origins of Western Marxism (London: Pluto, 1979), chs 10 and 11

Hedda Korsch, ‘Memories of Karl Korsch’ in New Left Review 76, 1972, pp. 40–4.

Perry Anderson, Considerations on Western Marxism (London: New Left Books, 1976)

J. G. Merquior, Western Marxism (London: Paladin, 1986).

On the Frankfurt School, Rolf Wiggershaus, The Frankfurt School: Its History, Theories, and Political Significance (Cambridge: Polity, 1995)

Stephen Eric Bronner, Critical Theory and its Critics (Oxford: Blackwell, 1995). On Sartre’s Marxism, Wilfrid Desan, The Marxism of Jean-Paul Sartre (New York: Doubleday, 1966)

Pietro Chiodi, Sartre and Marxism (Brighton: Harvester, 1978)

Mark Poster, Sartre’s Marxism (London: Pluto, 1979).

see Michel Trebitsch, Preface to Lefebvre’s Critique of Everyday Life (London: Verso, 1991).

Adam Schaff, Marxism and the Human Individual (New York: McGraw Hill, 1970)

Leszek Kolakowski, Toward a Marxist Humanism (New York: Grove Press, 1968)

Karel Kosik, Dialectics of the Concrete: A Study of Problems of Man and the World (Dordrecht: Reidel, 1976; originally 1963)

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A. Hegedus, A. Heller, G. Markus and M. Markus, The Humanisation of Socialism: Writings of the Budapest School (London: Allison & Busby, 1976).

Mihailo Markovic and Gajo Petrovic (eds) Praxis: Yugoslav Essays in the Philosophy and Methodology of the Social Sciences (Dordrecht: Reidel, 1979)

M. Markovic, The Contemporary Marx: Essays on Humanist Communism (Nottingham: Spokesman, 1974)

M. Markovic, From Affluence to Praxis: Philosophy and Social Criticism (Ann Arbor: University of Michigan Press, 1974)

M. Markovic, Democratic Socialism: Theory and Practice (Brighton: Harvester, 1982).

See also Oscar Gruenwald, The Yugoslav Search For Man: Marxist Humanism in Contemporary Yugoslavia (South Hadley: Bergin, 1983)

David Crocker, Praxis and Democratic Socialism: The Critical Social Theory of Markovic and Stojanovic (Brighton: Harvester, 1983).

Erich Fromm (ed.) Socialist Humanism (New York: Doubleday, 1965 and London: Allen Lane Penguin, 1967).

Some of the most influential scholastic works were: Bertel Ollman, Alienation: Marx’s Critique of Man in Capitalist Society (Cambridge: Cambridge University Press, 1971)

Istvan Meszaros, Marx’s Theory of Alienation (London: Merlin, 1970)

David McLellan, The Young Hegelians and Karl Marx (Macmillan: London, 1969)

Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge and New York: Cambridge University Press, 1968)

Eugene Kamenka, The Ethical Foundations of Marxism (London and New York: Macmillan, 1962), and Marxism and Ethics (London: Macmillan, 1969).

Louis Althusser, For Marx (London: Allen Lane, 1969)

Louis Althusser and Etienne Balibar, Reading Capital (London: New Left Books, 1970).

George Brenkert, Marx’s Ethics of Freedom (Boston: Routledge & Kegan Paul, 1979)

Norman Geras, Marx and Human Nature: Refutation of a Legend (London: Verso, 1983)

Allen Buchanan, Marx and Justice: The Radical Critique of Liberalism (Totowa, New Jersey: Rowman & Littlefield, 1982)

Kai Nielsen, Marxism and the Moral Point of View (Boulder, Colorado: Westview Press, 1988)

Philip Kain, Marx and Ethics (Oxford: Oxford University Press, 1991)

Rodney Peffer, Marxism, Morality, and Social Justice (Princeton: Princeton University Press, 1990).

Marx makes this distinction in Capital , Vol. 1 (Harmondsworth: Penguin, 1976), pp. 758–9n. I have argued elsewhere that Marx’s concept of human essence is at the heart of his social theory — Lawrence Wilde, The Concept of Contradiction in the Works of Karl Marx (unpublished PhD thesis, University of Liverpool, 1982), pp. 60–76; Lawrence Wilde, Marx and Contradiction (Aldershot: Avebury, 1989), pp. 20–35.

A relatively small number of scholars have recognised the significance of Aristotle’s influence on Marx — see Scott Meikle, Essentialism in the Thought of Karl Marx (London: Duckworth, 1985)

Michel Vadée, Marx: Penseur du Possible (Paris: Meridiens Kilncksieck, 1992), particularly ch. 7

George McCarthy (ed.) Marx and Aristotle: Nineteenth Century German Social Theory and Classical Antiquity (Savage, Maryland: Rowman & Littlefield, 1992).

Sarah Brodie, Ethics with Aristotle (Oxford: Oxford University Press, 1993), p. 45.

Theodor Adorno, Negative Dialectics (London: Routledge, 1973), p. 3.

Iris Marion Young, Justice and the Politics of Difference (Princeton New Jersey: Princeton University Press, 1990), p. 33

see also Agnes Heller, Beyond Justice (New York: Basic Books, 1987).

Alasdair MacIntyre, After Virtue: A Study in Moral Theory (London: Duckworth, 1981), chs 4, 5 and 6.

Lawrence Wilde, Modern European Socialism (Aldershot: Dartmouth, 1994), pp. 117–19; I am in agreement with David Lovell’s conclusion that Marx’s project has no direct and necessary association with Soviet authoritarianism- From Marx to Lenin: An Evaluation of Marx’s Responsibility for Soviet Authoritarianism (Cambridge: Cambridge University Press, 1984).

In The Civil War in France Marx wrote that ‘nothing could be more foreign to the spirit of the Commune than to supersede universal suffrage by hierarchic investiture’. CW 22, p. 333; for a convincing defence of Marx’s democratic credentials, see Daniel Doveton, ‘Marx and Engels on Democracy’ in History of Political Thought XV (4), 1994.

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Wilde, L. (1998). Introduction: Marx, Ethics and Ethical Marxism. In: Ethical Marxism and its Radical Critics. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-26865-8_1

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During the 2000s the terms ‘imperialism’ and ‘empire’ made a reappearance. This reappearance followed ‘unilateral’ military interventions by the United States and its allies. Because these military interventions were all justified using international legal argument that the international legal discipline also became increasingly concerned with these terms. Given this, it is unsurprising that there also arose two critical schools of thinking about international law, who foregrounded its relationship to imperialism. These were those working in the Marxist tradition and the Third World Approaches to International Law (TWAIL) movement. Both of these intellectual movements are contemporary examples of older traditions. Despite this popularity, there has been little sustained attention to the specific concepts of imperialism that underlie these debates. This thesis attempts to move beyond this, through mapping the way in which Marxist and TWAIL scholars have understood imperialism and its relationship to international law. The thesis begins by reconstructing the conceptual history of the terms ‘colonialism’, ‘empire’ and ‘imperialism’, drawing out how they are enmeshed in broader theoretical and historical moments. In particular it pays close attention to the historical and political consequences of adopting particular understandings of these concepts. It then examines how these understandings have played out concretely. It reconstructs earlier Third Worldist thinking about imperialism and international law, before showing how contemporary TWAIL scholars have understood this relationship. It then looks at how the Marxist tradition has understood imperialism, before turning specifically to Marxist international legal theory. Finally, it turns to the interrelationship between Marxist and Third Worldist theory, arguing that each tradition can contribute to remedying the limitations in the other. In so doing it also attempts to flag up the complex historical inter-relation between these two traditions of thinking about imperialism and international law.

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The Oxford Handbook of International Law in Europe

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The Master’s Tools and the Master’s House: Marxist Insights for International Law

Antonios Tzanakopoulos is Associate Professor of Public International Law at the Faculty of Law and Fellow in Law at St Anne’s College, University of Oxford. He is a Door Tenant at Three Stones Chambers, and Secretary-General of the International Law Asso

  • Published: 22 February 2024
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Audre Lorde wrote a text in 1979, entitled: ‘The Master’s Tools Will Never Dismantle the Master’s House’. In it, she argued that using the tools of racist patriarchy to examine the fruits of that very same racist patriarchy would only allow the narrowest parameters of change, if any. This is also the predicament faced by any Marxist approach to (international) law. This chapter traces the impact of Marxist thought on international law by focusing on structural aspects of international law: the structure of the (international) legal relation, aka ‘the legal form’; the content of the legal relation with particular emphasis on interpretation; and the justification of the legal relation through ideology. The chapter traces that impact without aspiring to be comprehensive; but aspiring to avoid as much as possible the jargon that tends to alienate (pun intended) non-specialist (in Marxism!) readers, thereby rendering the debate esoteric.

1. Introduction

Audre Lorde wrote a text in 1979 to which she gave the title: ‘The Master’s Tools Will Never Dismantle the Master’s House’. 1 In it, she argued that using the tools of racist patriarchy to examine the fruits of that very same racist patriarchy would only allow the narrowest parameters of change, if any. 2 This is, in a way, the predicament faced by any Marxist, or even Marxian, 3 approach to (international) law. Given that, according to Marx, in communism both law and the State will wither away and disappear, 4 and given that (on a somewhat crude reading) law is part of the superstructure erected to both conceal and justify the economic base, 5 law is but the master’s tool. 6 How could it ever really be used to dismantle the master’s house?

This puts any Marxist lawyer (in the broadest sense of both these terms) already in some difficulty. The difficulty becomes more pronounced if one were to refer to Marx’s eleventh thesis on Feuerbach, the hit thesis on Feuerbach one might say: 7 ‘Philosophers have hitherto only interpreted the world in various ways; the point is to change it’. 8 Alter this slightly to ‘Lawyers have hitherto only interpreted the law in various ways; the point is to change it’, and the difficulty becomes apparent. 9 And that is on two levels:

First, while Marxism is generally accepted by both proponents and adversaries as having had a significant impact (though here these will part ways as to whether that is for good or ill) in many disciplines—ranging from economics, history, and sociology to aesthetics and even city planning 10 —law, and especially international law, is not usually counted among them.

Second, is it even up to lawyers to change the law? This depends on how we define lawyers, and what we take their role to be. A more inclusive term would be ‘legal actors’, including legal scholars, practitioners, judges, as well as officials entrusted with powers of interpretation and application of the law. But let us just call ‘lawyers’ those with legal training: for a large part, ‘lawyers’ are responsible for making the law, even if not qua lawyers but rather qua politicians. More than 200 of the 500-odd members of the US Congress are lawyers by training, more than half of US presidents were lawyers by training, and similar numbers can be found in the parliaments or legislatures of many other ‘advanced’ capitalist States. 11 So the ‘lawyers’ could in a sense change the law, since they seem to be making it. This is quite unlike philosophers, who rarely seek political office. But lawyers prefer instead to advocate for ‘reverence for the law’, 12 perhaps because of their deformation professionnelle.

If that were not enough, the questions of what is a Marxist approach to (international) law, what is a work in the Marxist tradition, and even what is a Marxist lawyer, are a set of whole other cans of worms, replete with disagreements, accusations, splinter groups, denunciations, and the like. 13 And even if we were to settle these, we would come across another question which divides, creating a whole spectrum of positions, but represented in the extremes by the revolutionaries on one end and the reformists on the other: the question of ‘what is to be done’. 14 This translates well in discussing the Marxist tradition of international law (see Anghie , this volume and Mbengue and Akinkugbe , this volume): 15 at one extreme we find those who proclaim the master’s tool useless against the master’s house, and, having done so, turn to other tools (or just go home), leaving the law behind. 16 At the other extreme, we have those who still believe, beyond the criticism, in the emancipatory potential of international law (at least to some degree). 17 It is difficult to resolve this ‘radical’s predicament’. 18

A chapter on the influence of Marxist international law in a book on International Law in Europe may seem an oddity in more ways than one. Even though Marx(ism) was born in Europe, there is an inescapable orientalist aura around it. The first ones to take Marxism and law seriously were the early Soviet scholars, 19 in particular Pashukanis, a standard point of reference. 20 After Pashukanis’s ‘liquidation’ in 1937 and for many decades, ‘Marxist’ international law, almost completely bereft of any real emancipatory potential, was pursued by Soviet international legal scholars and those of the then ‘Eastern’ bloc. 21 I do not engage here with the practice of States that, at least in their own leaders’ minds and/or at least to some extent, follow(ed) the Marxist path, but I have focused on theory. Influences of Marxist thought were also evident in proto-TWAIL, 22 and in the attempt of then newly independent States to reshape the international legal order in the 1960s and 1970s, particularly through the attempt to establish a New International Economic Order. 23 After the failure of that attempt, it has been in Europe primarily (though clearly not exclusively) where in the last decades (since the end of the Cold War, and in particular in the new millennium) Marxist approaches to international law have flourished and have thus produced an interesting debate—even if, unfortunately, a slightly esoteric one at times, which, as a consequence, has not had the impact one might have hoped or wished on the wider international legal scholarship.

The first purpose of this chapter is to trace the impact of Marxist thought on international law without following the relatively simplified chronological line of the last paragraph, but rather by focusing on structural aspects of international law, grouping them under the structure of the (international) legal relation, aka ‘the legal form’ (Section 3 ); the content of the legal relation with particular emphasis on interpretation (Section 4 ); and the justification of the legal relation through ideology (Section 5 ).

A further purpose of this chapter is to do so without necessarily labelling Marxism a European tradition—after all, as already mentioned, it has influenced at least part of TWAIL, which, among others, seeks to not only expose but also to combat the Eurocentrism of international law. Or, if Marxism is to be considered a European tradition in some sense, it is one with a distinctively internationalist and unifying, as well as emancipatory, perspective: ‘Workers of the world’ are meant to ‘unite’, after all, having ‘nothing to lose but their chains’—but ‘a world to win’! 24

The final purpose of the chapter is to trace that impact without aspiring to be comprehensive; but aspiring to avoid as much as possible the jargon that tends to alienate (pun intended) non-specialist (in Marxism!) readers, thereby rendering the debate esoteric. I hope that all comrades with impeccable Marxist credentials will find it in them to excuse me for that latter transgression, and especially for the crash course in Marxism 25 that is about to follow in Section 2 , which is to serve as the basis for the rest of the chapter.

2. Marxism 101

This section introduces basic Marxist thought to the reader. It may seem like an impossible task to undertake in a few paragraphs. But it can be done briefly and meaningfully, even if at a cost to nuance and the variety of approaches to and interpretations of Marxist thought, briefly mentioned in the introduction. 26 The best way that this can be done is by emulating Albert Einstein in his 1949 essay ‘Why Socialism?’ in the first issue of the Monthly Review . In that essay, Einstein included short crash course into Marxism. 27

Einstein describes the basic tenets of the Marxist analysis of the capitalist system in the following simple terms: there are primarily two classes in society, let us call them the workers and the capitalists. 28 The workers only own their own labour power (their power to work and make things), while the capitalists own, well … everything else. Primarily, though, they own the means of production, that is, those means that are required for production to take place (land, infrastructure, raw materials, capital, etc). These two classes, reduced by the law to abstract and equal individuals, meet in the ‘market’ and enter ‘freely’ into agreements, sanctioned by the law, 29 whereby the worker sells their labour power to the capitalist, in exchange for a wage, while the capitalist buys the labour power of the worker and uses it to produce. Whatever is produced becomes the property of the capitalist. The essential point here is that the capitalist does not pay the worker the full value of the final product; what they pay is determined by the costs of the reproduction of the labour force and the balance of coercive power between the worker and the capitalist. The pay is always lower than the value of the final product, with the capitalist in effect pocketing the difference (the surplus value). 30

This is enabled by the concentration of private capital and ownership of the means of production in the hands of the few, who become very powerful, while the many have no response to that overwhelming power, unless they organize and demand redistribution. Redistribution or radical reform of the ownership of the means of production however is very difficult, and even ‘democratic’ organization is an insufficient check on the enormous power of private capital. The ‘oligarchy of private capital’ can (and does) exercise its power to influence political parties, separating the electorate from its representatives, who are supposed to be making the law. The law thus produced not only co-constitutes 31 the system, but also perpetuates it. On top of that, the capitalists are in control of the main sources of information, from the press to education, making it difficult for other individuals to ‘make intelligent use’ of their political rights. 32

For Einstein, ‘[t]he situation prevailing in an economy based on the private ownership of capital is thus characterised by two main principles’: first, the private ownership of the means of production (which is possible because of, and sanctioned by, the law); and second, the freedom of (labour) contract (which again is only possible because of, and sanctioned by, the law). 33 As such, the law plays a crucial role in both establishing and perpetuating the prevailing mode of production, that is, the capitalist economic system.

A Marxist theory of law is difficult to pin down, especially since Marx did not directly deal with the issue of law. However, there have been attempts to set out a Marxist theory of law by other thinkers. As mentioned in the introduction, Pashukanis was one of the first to try and do so, and his ‘commodity-exchange’ theory of the legal form has been influential both at the time of its elaboration in the interwar period, but also in the last decades. 34 According to this theory, the exploitative relationship between capitalist and worker (inherent in an economy based on the commodity) is legally based on the presentation of these two entities as abstract, equal legal subjects with capacity for self-determination. 35 This quality of equal subjects ‘specifies’ the conditions for exploitation to occur, which takes a particular legal form, the form of ‘free contract’. 36 The legal form both structures and perpetuates the exploitative relationship between the two.

This Marxist commodity-exchange theory of the legal form can be juxtaposed to that of Kelsen and his pure theory of law: law is completely removed from the ambit of politics, economics, or morals, and is presented as a self-contained system that can be studied in complete isolation from these other fields of inquiry.

There appears to be a fundamental enmity between Pashukanis and Kelsen, who can be taken to reflect two camps, one representing a Marxist theory of law, and the other representing a mainstream formalist theory of law (see d’Aspremont , this volume). They can thus further be taken to reflect the basic enmity between socialism and capitalism. Both criticize one another and both position one another as the ‘arch enemy’, 37 occasionally in slightly cartoonish terms.

The reality is that Pashukanis and Kelsen, despite the above, do share a fundamental characteristic—beyond the aspiration of ‘purifying’ law from ideology. 38 The shared characteristic is that neither theory tells us much about the content of the law. Kelsen, for example, while trying to establish a ‘pure theory’ of law which divorces law from any social or political influences, fully accepts that beyond the self-contained system that he constructs, politics and society do play a role: not in giving validity to the rules of the system, but definitely in creating and interpreting the rules of the system, acts which he further accepts are political in nature. 39 In that sense, if ‘formalist legal thought … call[s] on judges to deduce outcomes from norms “mechanically”’, 40 Kelsen is anything but a formalist. On the other side, the Kelsenian construction of the pyramidal flow of validity is in no way incompatible with Pashukanis’s arguments regarding the structure of legal relations. 41 The two are in effect complementing each other: 42 Pashukanis seeks to read the law as internal to the relation of capitalist production (and thus to find the external source of its effectiveness ), while Kelsen looks for the internal source of validity of the law. The two archenemies are basically just strawpersons for one another: they are answering different questions, focusing on different aspects.

We should in any event heed the warning of Albert Einstein, who cautioned against the overestimation of science and the scientific method in dealing with questions of human problems. 43 There is a role for that in law, but it does not exhaust the field. And I would venture a guess that neither Pashukanis nor Kelsen would disagree with that assessment.

3. The Structure of the Legal Relation: Between the Legal and the Real

The impact of Marxist thought can be traced through all aspects of the legal relation: the subject of the legal relation, that is the abstract and formally equal legal subject (Section 3.1 ); the object of the legal relation, posited here as primarily the sanctioning of property or possession (Section 3.2 ); and the operation of the legal relation, which requires coercion (Section 3.3 ). The overarching insight here is the juxtaposition of formal equality in legal reality with the (f)actual inequality in ‘real’ reality, 44 which pervades the structure of the legal relation.

3.1 The legal subject

Any standard curriculum of a general international law course will include among its first topics that of ‘subjecthood’ or ‘international legal personality’. 45 The idea is to introduce to students the peculiar, fictional entity that is the State, to explain its constitutive elements, and to discuss other potential international legal persons, all the while underlining how these are not States and thus not like States (accordingly, they only have limited international legal personality, even if a ‘large measure’ 46 of it on occasion). The orthodox understanding of the State as the ‘primary’ subject of international law, the paradigmatic legal person, rests on the idea of ‘sovereignty’ ( la plenitude de pouvoir (see Kalmo , this volume)), which then necessarily produces sovereign equality (a sovereign has no power over another sovereign, thus sovereigns are equals).

This principle of sovereign equality has significant consequences for the international legal order. It sets up the process of production of rules of international law, and it serves as the basis for the elaboration of further principles of substantive international law, such as these of State jurisdiction, sovereign immunity, territorial integrity, non-intervention, and so forth.

The important point here is the establishment of formal equality of legal subjects, the States, against the background of their clear factual inequality. 47 It is the agreement between the States as equal legal subjects that produces international law, it is their consent that subjects them to legal rules, whether that consent is more (treaty) or less (custom, or general principles) explicit. 48 Limiting sovereignty by ‘freely’ acceding to international obligations is but a function (an ‘attribute’, as per the Permanent Court of International Justice) of sovereignty. 49 But, ‘no one said that freedom’s free’: 50 factual inequality clearly affects the process of rule-making, with States having different negotiating power, even if they have formally equal status.

International lawyers, like all lawyers, tend to anthropomorphize the State. 51 Marxist insight explains that the legal subject is always a ‘reification’: 52 the legal form cannot comprehend and deal with actors in their full historical complexity and individuality; it has to flatten them out and then to address itself to, and deal with, these flattened avatars instead of the actual actors, whether people or States. For international lawyers specifically, this tendency of anthropomorphization and reification stems from international law’s approach to the State as a unitary actor. 53 But structural Marxism helps to nuance that image of the unitary State, and its exercise of power. 54 It explains that the State and its institutions are not to be understood monolithically as directly controlled by the capitalist in pursuit of short-term interest. Rather, the State functions to protect the long-term interests of capital, thus allowing the occasional blow to the short-term interests of the capitalist class, but stabilizing the system and protecting it from threatening uprisings in the long term. 55 This is replicated to some extent at the international level, not only through the emergence of elements of a global nascent State (especially in areas of economic and financial institutions), 56 but also in terms of how States operate individually at the global level.

With this in mind, let me return to the other important insight from Marxism regarding the subject of the legal relation made in this section: the set-up of equal legal subjects that are factually unequal has consequences both for the object of the legal relation, and for the operation of the legal relation. It is to these two issues to which the following sections now turn, respectively.

3.2 ‘What is law, if not possession?’

And by ‘possession,’ 57 let us just agree that we mean property relations and interests in the broadest sense—and by that also sovereignty. Sovereignty, like property, ceases to be ‘factual’, that is precarious and unstable, capable at being contested at any moment, and needing to be defended, ‘weapon in hand’. 58 It becomes ‘an absolute, fixed right … protected the world over’ by law. 59 ‘To make a thief, make an owner; to create crime, create laws.’ 60 Force, once used to determine what is mine to the exclusion of everyone else, has been replaced by ‘faithful compliance with legally established rules’. 61 A relation of force has thus been superseded by the legal relation (another relation of force, but under cover). The object of the legal relation, in international law as much as in domestic law, is to sanction possession, property in whatever form, and ultimately power. When it comes to States, this obviously translates quite easily to territory, with a whole set of rules determining title to territory, delimitation of land and maritime boundaries, the principle of uti possidetis for the emergence of newly independent States, and so forth. And these rules are complemented by the principle of territorial integrity, which aims to consolidate and stabilize the status quo.

But the object of the legal relation goes beyond possession in that rather obvious sense. It extends to access, including exclusive access, to territory and the natural resources or other resources (including labour power) there available. The law of the sea in large part regulates exclusive rights over natural resources for coastal States in specific maritime zones beyond the territorial sea (which forms part of the State’s territory in the strict sense): continental shelf and exclusive economic zone. But it also provides for the ‘freedom(s)’ of the high seas, freedoms that equally belong to all States, formally, but can actually only be exercised by some. It is easy to say, for example, that (taking the old territorial sea limit of 3 nautical miles (nm)) everyone is ‘free’ to fish beyond the 3nm limit off the coast of another State, but it is also easy to see how this really only makes sense for a developed, economically and technologically powerful State that can and has invested in long-distance fishing fleets, while it makes little sense for a distant developing State which is only capable of engaging in coastal fishing. This ‘freedom’ is more meaningful to some than to others, even if it formally belongs equally to all.

This unequal distribution is very difficult to correct, even with significant organization on the part of the less powerful States. During the Third United Nations Conference on the Law of the Sea, the ‘coastal’, mainly developing States, organized enough to be able to extract some concessions from the developed ‘maritime powers’—with the establishment of the exclusive economic zone, for example. But when it came to agreeing on a regime for the exploration and exploitation of the seabed beyond national jurisdiction, things were not as easy. The developing States resisted the establishment of a regime of ‘freedom’ similar to that applicable to the high seas (the water column above, in rough terms). They pressed for the collective exploration and exploitation of the international seabed, through an international organization, with profit sharing, technology transfers, the works; and all under the new regime of ‘common heritage of [human]kind’. 62 This was anathema to the developed States 63 —this was communism!

The developing States had the numbers to push their position through—only for the resulting convention (the 1982 United Nations Convention on the Law of the Sea (UNCLOS)) not to attract any ratification by a developed/Western State bar Iceland until the eve of its entry into force. The choice was both clear and stark: either have the Convention enter into force without any participation from the ‘first’ world, defeating its purpose to serve as a ‘constitution of the oceans’ and threatening its effectiveness due to the lack of funding for the creation of the various institutions it envisaged (including for the exploration and exploitation of the international seabed); or, simply, make significant concessions to the ‘first’ world, essentially dismantling the revolutionary regime for the seabed, even if maintaining the moniker of ‘common heritage of [human]kind’. You can imagine who won. But if you cannot, have a look at the euphemistically named ‘Agreement relating to the Implementation of Part IX of the United Nations Convention on the Law of the Sea’, adopted on 28 July 1994. 64 The UN Convention on the Law of the Sea entered into force on 16 November of that same year.

Similar examples of attempts to organize and ‘correct’ rules favouring unequal distribution can be found in other areas of international law, including for example the attempts of newly independent States (emerging from colonial domination, that is) to switch from a rule of ‘prompt, adequate, and effective’ compensation for expropriation (nationalization) to one of ‘fair’ compensation, taking into account the effects of colonialism on the natural resources of these States. The outcome of that struggle is portrayed in the so-called ‘Libyan arbitrations’. 65

A struggle over resources is not limited to natural resources; it also includes ‘human resources’ (a terrifying term), including labour power. When it comes specifically to labour power, one can refer to international migration law, the legal regime that determines which categories of people will be allowed to move freely and which have to either ‘stay back’ or use illegal migration channels. But the struggle over resources in the broadest sense is apparent in international trade law and in international investment law. These are two areas of international law that mainly involve inward-looking norms, and that are merely a continuation of colonial relationships of domination and subjugation by another means. 66

Inward-looking norms are norms that require some action at the domestic level in order to be implemented, often through regulatory means. Non-discrimination obligations, such as national treatment and most-favoured-nation treatment, obligations to guarantee fair and equitable treatment or full protection and security, obligations to regulate subsidies or allow access to markets for specific products or investments, are paradigmatic examples of inward-looking obligations (as are human rights obligations, on which see further below). The proliferation of inward-looking norms in international law is a consequence of globalization, understood as the increasing interaction and interdependence of States, which is driven by capital and aims at the globalization of capital. Inward-looking norms are negotiated and adopted between States, but also by special interests that either drive negotiations in specific areas, or at least lobby States hard to affect the negotiating direction.

It is possible, of course, to penetrate the veil of ‘the unitary nature’ of the State to allow some access to the actual ‘struggle within’ 67 the State between the ‘living forces of production’. 68 The unique tripartite structure of the International Labour Organisation (ILO) is however the only extant example where this has happened formally, with government representation being complemented with independent representation of both employers’ and workers’ organizations. 69 Even there, the ‘new social values’ proclaimed in the ILO mandate 70 in the aftermath of the October Revolution, and renewed in the aftermath of the Second World War, have for the most part remained an empty letter: 71 equal distribution of wealth and welfare, extension of social security and guarantee of basic income and comprehensive medical care, adequate nutrition, housing, and recreation, equality of educational and vocational opportunity seem as distant today as at almost any time in the last hundred years. 72 Globalization has been one of capitalist interests and of the legal rules supporting them : inward-looking norms either allowing or demanding deregulation, 73 rather than a globalization of ‘new social values’. Such ‘new social values’ might have seemed merely humanitarian (as well as a concession to contain socialism) in the 1920s, or obvious basic rules of coexistence in the 1970s, but have been acquiring an increasingly ‘socialist’ (or even far-left) whiff in the 2020s, ‘socialist’ here understood as a derogatory term that is enough to render people ‘unelectable’ across the world, and a characterization which many politicians will strive to avoid for precisely that reason.

In a more remote manner, almost all areas of (international) legal regulation can be connected to possession and property. This is true even for human rights, the paradigmatic set of inward-looking norms, 74 and one which looks quite innocent, if not outright ‘progressive’ at first glance. When we talk about the international protection of human rights, however, we are mainly focusing on ‘first generation’ civil and political rights. These private rights are the only ones considered ‘enforceable’. Social, economic, and cultural rights, collective rights to housing, health, food and clean water, work, and what have you, while ‘consecrated’ in international law, 75 are only loose obligations of best efforts not corresponding to actually enforceable rights. 76 One explanation for this is that ‘first generation’ private rights impose negative obligations on the State, obligations of abstention which cost nothing—as opposed to socio-economic rights, which require positive action on the part of the State and are thus expensive. 77 This is of course not true: the right to a fair trial very much corresponds to positive obligations, requiring the State to set up and run a justice system to some considerable expense; not to mention the positive aspects of the right to life or of freedom from torture which also require considerable oversight machinery to be in place. 78 All this stuff costs money—it is just a matter of priorities that money is spent primarily on this rather than for the attainment of socio-economic rights. And these priorities are easily explainable on the basis that civil and political rights are quintessentially individual(ist), 79 as opposed to socio-economic rights, which might cultivate solidarity and collectivism and could thus strengthen a counter-hegemonic drive. It is obvious which rights pose no real threat to the system. 80

Equally importantly, the very basis of civil and political rights is the protection of property, 81 even if the protection of property itself is not included in the International Covenant on Civil and Political Rights (ICCPR). 82 That might as well be, seeing as how every other civil and political right is effectively established to allow one (who has property) to peacefully enjoy it. In order to enjoy your property, you must be alive (right to life), you must remain free (right to liberty and security of the person), you must be assured that nobody is going to take it arbitrarily (right to a fair trial), and so forth. If you think that I am exaggerating (well, perhaps only a bit, but I am trying to make a point here), then please have a look at how the international protection of human rights evolved, in reality, out of the protection of the rights of aliens in international law. The ‘basic standards of treatment’ (no arbitrary deprivation of life, no arbitrary deprivation of liberty, no denial of justice) were initially consecrated in international law in order to ensure that aliens (from Western, ‘civilized’ States) would be allowed to fully enjoy their property in the savage lands of the uncivilized States where they would venture in search of fame and fortune. 83

Surely, you will counter, human rights are a good thing. After all, they include freedom of assembly and freedom of expression and so many other things. Sure they are, in one view. In another, they are nothing but elementary concessions that in the final analysis serve to pacify and thus to further stabilize the system by serving as absorbers of discontent. 84 They are but concessions to avoid rage boiling over into violent uprising. 85

3.3 What is law, if not coercion?

Taking Kelsen as a starting point, the differentiating factor between law and other systems of rules that regulate the behaviour of any given community is the coercive character of the sanction that forms part of the legal norm. 86 A norm is a command backed by a sanction; a legal norm is a command backed by a coercive sanction, and thus it produces a legal relation that is essentially a coercive relation. In domestic legal orders, the application of the coercive sanction has been centralized (or contracted out, to be more provocative) to the State, in particular to its executive branch. In the decentralized international legal order, however, no such contracting out has taken place in favour of some universal, supranational organ. States are left to their own devices to apply coercion in order to enforce legal prescriptions, mainly through the adoption of countermeasures. At an abstract level, a countermeasure is simply a breach of an international obligation by the injured State in response to a previous breach of an international obligation by the responsible State, which refuses to cease the breach and comply with secondary obligations of reparation, and so on. 87

These countermeasures, these breaches-in-response-to-breaches, tend to be, for the most part, economic in nature, or at least to have economic aspects. And yet there is a long-standing debate in international law, which continues to this day, regarding the prohibition of economic coercion. This debate stems from the customary norm of non-intervention, 88 a norm that prohibits States from ‘coercively’ intervening into the ‘area of freedom’, the domestic affairs of other States. The prohibition of intervention consists of, so the orthodox view, two elements: an intervention (a) which is coercive in nature (b) into the area of freedom (or the ‘domaine réservé’) of another State. 89

There are numerous international instruments, such as Declarations and other Resolutions of the UN General Assembly, that portray ‘economic’ coercion as unlawful (and thus as a potential element of prohibited intervention). 90 And yet, in none of these instruments, or in the surrounding debates and practice of States, can this concept of economic coercion (as an element of unlawful intervention) be defined with any certainty. 91 The concept of unlawful economic coercion is proclaimed, but it simply resists definition. The only consensus that can be achieved is that forcible coercion, that is, coercion involving the use of armed force, is definitely unlawful, in view of the prohibition of the use of force in customary law and in Article 2(4) of the UN Charter. 92 But that tells us nothing of ‘economic’ coercion.

This should not be a surprise. First, as explained above, economic coercion is not some kind of aberration: it is rather a fundamental process for the decentralized enforcement of international law. But it is also, second, a fundamental feature of the prevailing capitalist system and its mode of production. The latter relies on (sometimes not-so-) subtle economic coercion, all the while stressing the equality and freedom (of choice) of economic actors-turned-legal subjects. Both equality and freedom, however, are only formal, not actual. While ‘legal’ reality treats subjects as free and equal, ‘real’ reality reveals them to be both unfree and unequal. 93 Of course, a worker is ‘free’ to sell or not sell their labour power in the market—they are indeed free to choose to die of hunger instead, 94 or to choose to be unable to pay their bills. 95 And a capitalist is ‘free’ to contract or not contract with that worker—and choose instead some other worker from the extant ‘unemployed reserve army of workers’, the obligatorily unemployed on which the capitalist system depends. 96 Similarly, a State is legally ‘free’ to trade or not trade with any other state, and thus its refusal to trade with or to open its market to another state is not in any way prohibited economic coercion.

Factually, however, it is clear that the labourer is coerced—systematically, economically—to sell their labour power to those who own the means of production, just like the economically weaker State is coerced to adopt such conduct as is acceptable to the economically powerful State(s), lest it be devastated. So much for its legal ‘freedom’ to choose any economic, political, and social system that it wishes. 97

There is no way out of this ‘conundrum’. In fact, this is not a conundrum at all: it is a feature, not a bug! 98 Trying to create rules that would prohibit this kind of coercion would amount to questioning the prevailing method of production at its core. It would be an outright revolutionary challenge to the system. The best that can be achieved within the system is a rear-guard action. One such has already been fought, and to some extent won, in the sense that recourse to countermeasures, that is, formally lawful economic coercion, has been subjected to conditions and limits. 99 But a whole set of means of economic pressure, even coercion, is still unregulated and available for use: this is retorsion, formally lawful but unfriendly actions, which can be resorted to for any reason, or even for no reason at all.

An example of retorsion as a means for exercising lawful (economic) pressure should suffice to complete the picture. Imagine a State that is economically weak, and that relies heavily on another State (or group of States) for ‘voluntary’ aid, as well as for ‘voluntary’ trade relations (ie not trade relations established on the basis of assumed international obligations). That first State, after an election and a change of government, decides to reform its economic system, nationalizing certain industries and services, raising taxes, or whatever. Or simply votes the ‘socialists’ into power. The second State (or group of States), the one providing ‘voluntary’ aid and maintaining ‘voluntary’ trade relations, does not like the socialists. It thus threatens to withdraw (or withdraws) voluntary aid and threatens to cease (or ceases) trade activity. Both these acts are unfriendly, but they are perfectly lawful. They thus require no justification at all. They are retorsion with a clear view to pressuring the first State to think again, appreciate the value of normality, and avoid reformist escapades in the future. 100

4. The Content of the Legal Relation: The Role of Interpretation

Beyond the structure of the legal relation, there is also the question of its content, or the content of rules. Determination of the content of rules, both at inception, but also during their operation, is itself the outcome of a struggle. This is because legal rules are expressed in words, and words are inherently indeterminate (or underdeterminate) at least to some degree. 101 This applies to domestic law as much as it applies to international law, and is even more prevalent in international law to the extent that part of it consists of customary rules, where even the language (let alone the content) of the rule is not fixed.

Koskenniemi argues that there is something in the structure of the international legal argument itself that allows both sides to a dispute to make plausible claim as to the content of particular rules. 102 Logical claims based on fundamental legitimating concepts of international law, whether ascending (from ‘apology’ = sovereignty) or descending (from ‘utopia’ = global order), produce competing plausible interpretations. 103 That much anyone should be ready to concede, and again this is no way unique to international law. 104 Such ascending and descending arguments producing plausible competing interpretations of legal rules are a characteristic of every legal system, of every legal relation even. 105 The important point is who decides between these plausible interpretations, which formally equal legal subjects (in the international legal order, States) have an equal right to make. Even Kelsen concedes that it is power that decides, though power as sanctioned by the legal system. 106 And in that he agrees, in my view, with Pashukanis, in that the determination of the content of the laws is, in the final analysis, a political, coercive determination. 107

Kelsen argues that between plausible interpretations, the decision is political. 108 Every legal rule (its language, context, object, and purpose, etc) can support a whole range of plausible interpretations. 109 Some may seem more plausible than others—but that is in the eye of the beholder, and it is also (over-) determined by a range of political, ethical, and other conscious or unconscious positions and biases, some of them contradictory. 110 When two formally equal legal subjects, two individuals in one system, two States in another, adopt competing plausible interpretations, then there is no way to choose between them that is imposed by law.

This is quite evident in international law if one looks at, for example, the general ‘rule’ of interpretation in Article 31 of the Vienna Convention on the Law of Treaties (VCLT). Article 31(1) directs the interpreter to interpret a treaty rule in good faith, in accordance with the ordinary meaning to be given to its terms, in context, and in line with the treaty’s object and purpose. Notably, however, it does not guide the interpreter as to how much weight to give to any of these elements (which reflect in reality all standard methods of interpretation in all law: textual, contextual, teleological). 111 The elements are rather to be thrown into a ‘crucible’, 112 without reference as to how much of each to throw in, or in what order. Whatever comes out is the ‘proper’ interpretation, though it is quite clear that a number of plausible interpretations may come out, depending on who is doing the interpreting (or the throwing into the crucible). The European Court of Human Rights (ECtHR), for example, is notorious for throwing into the crucible quite a lot of object and purpose, 113 while the World Trade Organization Appellate Body is equally notorious for putting heavy reliance on dictionary definitions. 114

The ‘rule’ thus offers no real guidance as to how to select between competing plausible interpretations. 115 At best, what it does is to help draw the circle of plausible interpretations, rejecting some only at the very margins. Everything within the circle though is game, and it is almost unimaginable that there will be only a single lege artis plausible interpretation of any given rule. The meaning of a rule is not immanent, there to be discovered by exercise of reason and reflection and interpretation, 116 as Hegel might suggest. Rather, the meaning of a rule is constructed in response to challenges presented in daily life, much like Marx would suggest, 117 inverting Hegel as he does. 118

So, the crucial question becomes who gets to interpret the rule, who gets to construct its meaning, who gets to determine its content with final authority in each specific case. And it is the law itself, the legal system, that allocates such final authority. 119 In the domestic legal order, for example, final interpretative authority is assigned to domestic courts in the vast majority of cases. These courts will make what is essentially a political 120 decision as to which among the competing plausible interpretations will be the authoritative one, the one that resolves the specific case. In that, the court will be making the law for the specific case. 121

In the international legal order, the principle of consensual jurisdiction means that courts will only occasionally be delegated the power by States to make the political determination as to which of the competing plausible interpretations is the authoritative one in each specific case. For the most part, States retain the power to decide for themselves as to the content of each rule: the legal system assigns the power of authoritative interpretation in each specific case to the peculiar ‘composite organ’ 122 constituted by the two or more States involved in that specific case. In more general terms, it assigns that power to the ‘peculiar organ’ constituted by all the States that established and are bound by the rule. This power of course requires that the ‘peculiar organ’ reaches agreement in order to be exercised.

If no agreement is reached between the States constituting the ‘peculiar organ’ that exercises the political power to finally determine the content of a rule (and we all know how agreement can be reached: horse trading, subtle threats, inducement, and the like), then each State may determine for itself, and at its own risk, the content of the rule and thus its own and any other State’s legal position. 123 All such determinations are formally equal: no selection can be made among them until the States either agree (‘peculiar organ’) or at least agree to delegate the political power to a third party, such as a court or tribunal, as described in the previous paragraph. The determinations remain equal until we reach that final instance. But, to paraphrase Althusser, ‘the lonely hour of the “last instance” [may] never come[]’. 124

We are left then with two or more formally equal, competing, plausible interpretations. And this is where Marx comes in: ‘between equal rights, power decides’. 125 What this means, in the particular circumstances, is that each State is entitled to maintain its position in perpetuity unless and until some agreement is reached, as discussed above. This is, as mentioned, ‘at its own risk’ (of later being found to have engaged its international responsibility), 126 but of course the risk is legal, not actual. When it comes to actual risk, it is obvious that it is much easier for powerful States to maintain a position for far longer and with much more persistence than less powerful States, which can also be subject to all sorts of lawful pressure (described in Section 3.3 ) to great effect.

5. The Justification of the Legal Relation: The Function of Ideology

The discussion of the structure of the legal relation in Section 3 has shown that the law not only enables, but in fact structures exploitation behind a veneer of legal equality. The political nature of the determination of the content of the legal relation, explored in Section 4 , supports this structuring of exploitation provided for by the legal relation in its actual operation. Law also has, however, an ideological function: it justifies and normalizes the exploitation that is structured, enabled, and perpetuated by the legal relation.

Exploitation, in the domestic legal order, is exploitation of one class (the working class) by another (the capitalist class) and one of the roles of the law (and its interpretation) is to ‘mask’ that exploitation behind the surface of legal relations of exchange. 127 As an apparently ‘neutral’ system, operating on the basis of abstract rationality, 128 the legal system obfuscates the social relations that ‘stand behind’ the legal form of those relations. 129 It thus makes factual inequality and exploitation appear natural, inescapable. 130 If the role of law is to both structure and mask exploitation, the function of ideology is to provide justification for, and thus legitimation of, that exploitation. Even when the exploitation at the basis of the capitalist system of production is laid bare for all to see, people will either simply be in denial, not accepting that this is the case; or, if they accept it, they will be made to believe that this is somehow still the best way for everyone to be better off; or, even if they do not believe that, they will (be made to) feel that ‘there is no alternative’ (TINA), that this is the natural order of things. 131 Political struggle is thus only possible within the bounds prescribed by the dominant ideology, within the ‘common sense’; 132 people going beyond are simply dismissed as ‘loony left’.

Challenging such perceptions, such ideological positions, on the basis of ‘justice’ presents its own distinct problems. First, the term ‘justice’ is a ‘weasel word’ (a word without content, meaning, but with its ‘shell’ intact), 133 or what George Orwell called a ‘meaningless term’. 134 Terms like ‘justice’, ‘democracy’ (see Poghosyan , this volume), ‘rule of law’, and others, are open to private definitions depending on the speaker, and in general do not share a definition acceptable to all or to most. They do, however, evoke a particular feeling and thus agreement with the underlying argument—who does not want ‘justice’ or ‘democracy’? The only thing that we agree on, generally, is that these terms signify something desirable, even if we cannot reach an agreed definition of the term. 135 Because of this, such terms with variable meanings can be used, consciously or unconsciously, to obfuscate, allowing interlocutors to superficially agree, while each of them understands something more or less different to the others.

Second, and because of that feature of variability of meaning, it is open to the dominant class to fill these vessels with meaning, 136 and thus to argue that the current system of distribution is ‘just’: they are the wealth creators, the job creators, the ones who assume the risk and must also be able to claim (more of) the benefit. And on the basis of the capitalist mode of production, they are of course ‘right’—this is in fact the only ‘just’ distribution. 137 Anything different would require revolutionary change.

The exploitation, and the class ‘struggle within’ the State, 138 is non-cognizable to, and invisible due to, international law—for which the unitary State is the primary unit of analysis; the primary ‘subject’. But it is to some extent replicated at the international level, which results in a ‘double masking’: not only is the ‘struggle within’ masked once over due to the now familiar structure of the legal relation as between abstract, formally equal individuals; it is masked twice over with the structure of the international legal relation as between abstract, formally equal States.

During the Cold War one could argue for a ‘tripartite’ division of States to those belonging to the ‘first’, the ‘second’, and the ‘third’ world—but in reality, the division was between the more powerful but less numerous States on the one hand, and the less powerful but more numerous States on the other. The same is true with the potential divisions both before and after the Cold War, the main division before the Cold War being between ‘civilized’ and ‘semi-civilized’ States; and the main division after being between developed and developing States. In both cases there were still further categories in play (uncivilized States, before; least developed States, after). But the point regarding more powerful/less numerous—less powerful/more numerous (and exploited) stands, I think, even if it is somewhat simplistic.

Where does this leave the Marxist lawyer? What emancipatory potential could there be in international law, given the structure and content of the international legal relation (or ‘form’) and the sugar-coat of ideology designed to justify the exploitation hiding behind the legal relation even when the former is successfully exposed? There seems to be some agreement that, given capitalism, little change can be attained through (or on) international law. The disagreement seems to be over what an international lawyer who ‘has seen the Marxist light’ ought to do in such circumstances.

At one end of the spectrum, let us call it the revolutionary end, one would argue that one ought then to stop being an international lawyer and rather work for the destruction of capitalism, presumably by agitating and/or writing stunning science fiction novels. 139 At the other end of the spectrum, let us call it the reformist end, one may still somehow believe in the emancipatory potential of the law. 140 Somewhere between these two ends of the spectrum, probably close to the middle, there is one position which seems to make the most sense (to me). This is the position of the pessimistic opportunist. Along the Gramscian lines of ‘pessimism of the intellect, optimism of the will’, 141 this position advocates for fighting to bring about whatever progressive change is within reach, all the while being painfully aware that the system will simply endure until it is (if it is ever) overthrown. The position of the pessimistic opportunist concedes that the fight for progressive change is only a set of rear-guard actions; rear-guard actions that are fought in an attempt to salvage whatever of the cause of freedom and emancipation is salvageable still, and—in particularly joyous circumstances—to even advance said cause incrementally.

6. Conclusion

The structure of the legal relation embodies coercion through the legal fiction of abstract, equal subjects freely entering into obligations towards one another, when the reality is that of factual inequality, exploitation, and domination. This coercion plays out not only in the establishment of the legal relation, but also in the determination of its content, particularly through the political, coercive act of selecting between formally equal but competing plausible interpretations. Ideology then, including propaganda, always seen as a materially grounded force, serves to justify that entrenchment of coercive relations of domination into law. Law is there to structure, justify, and conserve the ‘values’ of a ruling class projected upon an imagined ‘homogenous’ society. 142 And this applies as much to domestic, as it does to international law—where the ‘values’ of global capital are projected upon an imagined homogenous ‘international community’. 143

What is to be done? Can the master’s tools (international law) be used to dismantle the master’s house (global capitalism)? Clearly not; but the tools can still be used to alleviate some suffering by defending against unchecked further expansion of the master’s house, as much as, in appropriate circumstances, making corrective interventions in the existing structure—or even causing some damage. These are all rear-guard actions: defensive actions carried out by people retreating in the face of expanding global capital. But within the existing system, they are the best (or: only) option that is available. Nothing stops one from using the law to fight rear-guard actions, while engaging other means in the hope of changing the system as a whole. 144

Acknowledgements

I thank Anne van Aaken, Miles Jackson, Lauri Mälksoo, Eleni Methymaki, and Christian Tams for helpful comments. Special thanks to Akbar Rasulov and Maria Tzanakopoulou for their deep engagement with the text. All errors, omissions, offensive generalizations, unjust denunciations, and multifarious misconceptions remain my responsibility.

1   Audre Lorde , ‘The Master’s Tools Will Never Dismantle the Master’s House’ in Audre Lorde , Sister Outsider ([1984] Penguin 2019) 103 .

2   ibid. cf Karl Marx , ‘Critique of the Gotha Programme’ in Karl Marx , Later Political Writings ( Terrell Carver ed, CUP 1996) 214–215 : ‘In a higher phase of communist society … only then can the limited [narrow, in other translations] horizon of bourgeois right [law, in other translations] be wholly transcended, and society can inscribe on its banner: from each according to [their] abilities, to each according to [their] needs’.

3 There is no consensus that these terms mean the same or different things. For example, some authors use them apparently interchangeably, but Martti Koskenniemi , ‘What Should International Lawyers Learn from Karl Marx?’, 17 Leiden Journal of International Law 2004, 229 , uses exclusively the term ‘Marxian’, while others use exclusively the term ‘Marxist’.

4   Marx, Later Political Writings (n 2 ) 222; Friedrich Engels , Socialism: Utopian and Scientific ([1880] Resistance Books 1999) 92 ; explicitly Evgeny B Pashukanis , Law and Marxism: A General Theory ([1924] Chris Arthur ed, Barbara Einhorn trans, Ink Links 1978) 61 .

5 Support for this position is usually drawn from Karl Marx, ‘Preface to A Contribution to the Critique of Political Economy ’ in Marx, Later Political Writings (n 2 ) 159–160: ‘[t]he totality of [the] relations of production forms the economic structure of society, the real basis from which rises a legal and political superstructure’ (emphasis added). In reality, law belongs as much to the base (structuring and enabling the economic base) as to the superstructure (concealing and perpetuating it). In the very same ‘Preface’, Marx states that ‘property relations’ are but the ‘legal expression’ of ‘already existing relations of production’, thus highlighting how legal relations co-constitute or structure the economic base: ibid , 160. Marx himself later nuanced the determinism of the ‘Preface’, see Etienne Balibar , The Philosophy of Marx ([1993] new ed, Chris Turner and Gregory Elliot trans, Verso 2017) 108–112 . See also Pashukanis (n 4 ) 90–91. Even Kelsen agrees with this position: he notes the reflexivity of the relationship of law to both base and superstructure in Hans Kelsen , The Communist Theory of Law (Stevens & Sons 1955) 8–9 .

As should be clear from the previous footnote, I do not adopt such a purely instrumentalist approach, though of course I fully accept the class-instrumentalist aspect of law (among its other aspects). So does Kelsen, The Communist Theory of Law (n 5 ) 73: ‘No serious bourgeois writer who is not a follower of natural-law doctrine excludes from [their] definition of the law a social order which is in the interest of a dominant class’.

Other hits include ‘the opium of the people’ and ‘proletarians of the world, unite’. Hits are hits for a reason.

Obviously the parallel between ‘world’ (an entire reality) and ‘law’ (one very narrow, constructed aspect of it) is a bit strained. The point is that Marx, being himself a lawyer by training, would not have failed to recognize that the same problem that applies to philosophers—only interpreting the world, also applies to the legal profession. I thank Akbar Rasulov for this point.

10 cf Akbar Rasulov , ‘A Marxism for International Law: A New Agenda’, 29 European Journal of International Law 2018, 631, 634 .

A 28-year-old Abraham Lincoln, a lawyer, famously stated in an 1838 speech: ‘Let reverence for the laws … become the political religion of the nation’. Abraham Lincoln, The Perpetuation of Our Political Institutions , Address before the Young Men’s Lyceum of Springfield, Illinois, 27 January 1838 < https://www.abrahamlincolnonline.org/lincoln/speeches/lyceum.htm> accessed 18 August 2023.

13 See Rasulov (n 10 ) 633–634; Robert Knox , ‘Marxist Approaches to International Law’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 306 .

See Lenin’s 1902 pamphlet, available at < http://www.Marxists.org .> accessed 18 August 2023.

15 A similar thing can be said about Third World Approaches to International Law (TWAIL): see Naz K Modirzadeh , ‘“[L]et Us All Agree to Die a Little”: TWAIL’s Unfulfilled Promise’, forthcoming in 65 Harvard International Law Journal 2023 , esp the testimonials in the opening paragraphs and the introduction.

16 See generally China Miéville , Between Equal Rights: A Marxist Theory of International Law (Pluto Press 2006) 3, 17–18 and passim ; Grietje Baars , ‘“Reform or Revolution”? Polanyian versus Marxian Perspectives on the Regulation of the Economic’, 62 Northern Ireland Legal Quarterly 2011, 415 .

17 See, eg, Bill Bowring , The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge 2008) .

18 See generally Rasulov (n 10 ). For the term see Hugh Collins , Marxism and Law (OUP 1984) 124 ff.

19 Though see for an exception Karl Renner , Die Rechtsinstitute des Privatrechts und ihre soziale Funktion: ein Beitrag zur Kritik des bürgerlichen Rechts (Mohr 1929) .

20 See n 4 . Other important works are by Lenin, Stuchka, Reisner, Vyshinsky, Golunskii, in the volume Soviet Legal Philosophy ( Hugh Webster Babb trans, Harvard UP 1951) , which Kelsen reviews in The Communist Theory of Law (n 5 ).

21 See, eg, Evgeny A Korovin (Korowin) , Das Völkerrecht der Übergangszeit: Grundlagen der völkerrechtlichen Beziehungen der Union der Sowjetrepubliken ([1923] J Robinson-Kaunas trans, Rothschild 1929) ; Nikolai A Ushakov (Ouchakov) , ‘La compétence interne des États et la non-intervention dans le droit international contemporain’, 141 RdC 1974, 1 ; Grigory I Tunkin , Theory of International Law ([1970] William E Butler trans, George Allen & Unwin 1974) . For the position that the scholarship emanating from communist States did not contribute significantly see Collins (n 18 ) 2. On the work of Korovin specifically see Boris N Mamlyuk and Ugo Mattei , ‘Comparative International Law’, 36 Brooklyn Journal of International Law 2011, 385, 394–406 .

Or TWAIL I: see further n 15 .

23 See generally Mohammed Bedjaoui , Towards a New International Economic Order (UNESCO 1979) ; Robin CA White , ‘A New International Economic Order’, 24 International and Comparative Law Quarterly 1975, 542 ; Robert W Cox , ‘Ideologies and the New International Economic Order: Reflections on Some Recent Literature’, 33 International Organization 1979, 257 .

24   Karl Marx and Friedrich Engels , The Communist Manifesto ([1848] Verso 1998) 77 . See also n 7 re: hits.

25 cf Antony Bourge and John Shelley , ‘Crash Course in Brain Surgery’ in Budgie , In for the Kill! (MCA 1974) .

See text at n 13 .

28 It is more complicated than that: on structural overdetermination see generally Nicos Poulantzas , Political Power and Social Classes ([1968] Timothy O’Hagan trans, Verso 1978) and Nicos Poulantzas , State, Power, Socialism ([1978] Patrick Camiller trans, Verso 2014) ; for a summary see Akbar Rasulov , ‘“The Nameless Rapture of the Struggle”: Towards a Marxist Class-Theoretic Approach to International Law’, 19 Finnish Yearbook of International Law 2008, 243, 259–264 .

See Pashukanis (n 4 ) 39 (preface to second Russian edition).

30 See generally Karl Marx , Capital ([1867] David McLellan ed, abridg, OUP 1995) 108 ff (ch 6).

Or ‘overdetermines’.

See Einstein (n 27 ).

For other influential approaches see n 20 .

See Pashukanis (n 4 ) 39.

36   ibid . Legal form and legal relation are two terms that I use as meaning the same thing in this text.

See Miéville (n 16 ) 34 ff; and cf Kelsen, The Communist Theory of Law (n 5 ) 89 ff; Pashukanis (n 4 ) 51 ff.

See Kelsen, The Communist Theory of Law (n 5 ) 89; and n 43 .

39 See text and references at nn 109–113. See also Kelsen, The Communist Theory of Law (n 5 ) 73, where he accepts that law is ‘a social order which is in the interest of the dominant class’. Per Kelsen, ibid , 75, it is the science of law that is ‘independent of political value judgments’, not the law itself . This means: Kelsen’s limited normative construction of validity flow, not the process of formation and the determination of the content of the law.

41 cf Pashukanis (n 4 ) 51–53. Pashukanis was himself ‘accused’ of attempting to construct ‘a theory of pure jurisprudence’ and failing, producing a theory of law ‘which is basically sociological’, in this case by Ilinsky; Pashukanis was at pains to dispel the accusations: ibid , 106–108.

In fact, Kelsen, The Communist Theory of Law (n 5 ) 193, complains precisely about the fact that the Marxian theory of law seeks to substitute its sociological inquiry for the normative theory of law, instead of ‘adding to it’ (emphasis added).

See Einstein (n 27 ) (emphasis added).

cf Pashukanis (n 4 ) 147.

45 Unsurprising: ‘Every legal relation is a relation between subjects. The subject is the atom of legal theory, its simplest, irreducible element’: ibid , 109. Pashukanis was not up to date on his quantum physics.

See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179.

47 See also Juliane Kokott and Lauri Mälksoo , ‘States, Sovereign Equality’ in Anne Peters (ed), MPEPIL (OUP 2023) MN 2 ; and further Peter H Kooijmans , The Doctrine of Legal Equality of States: An Inquiry About the Foundations of International Law (AW Sythoff 1964) .

See Article 38(1) Statute of the International Court of Justice. cf Pashukanis (n 4 ) 113–114 with reference to Marx’s Capital (n 30 ). We could even rephrase Marx as follows, positing ‘sovereignty’ in the place of commodity: The guardians of sovereignty, ie the States, must enter into relations with one another as persons whose will resides in sovereignty and must behave in such a way that each does not appropriate the sovereignty of the other, and alienate its own, except through an act to which both parties consent . This explains the reification of sovereignty and its mystification—ie the reasons why we treat sovereignty as a thing, and one we are hardly able to define to boot.

  SS ‘Wimbledon’ [1923] PCIJ Ser A No 1, 25; cf Pashukanis (n 4 ) 117: ‘The quality of subjecthood is not inherent in humans as animate beings graced with a rational will. It is rather abstracted from the act of exchange, where humans put into practice the formal freedom of self-determination.’

50   Phil Rind and Wiley Arnett , ‘The American Way’ in Sacred Reich , The American Way (Metal Blade 1990) .

51 Pashukanis (n 4 ) 145 (the State exists as an organ of class interests); Hans Kelsen , Reine Rechtslehre (2nd edn, Franz Deuticke 1960) 288 ff (the State exists as a closed system of norms). If the law is seen in its class-instrumentalist view, they agree. See further Natasha Wheatley , The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton UP 2023) .

52 On reification see further Georg Lukács , History and Class Consciousness ([1923] Rodney Livingston trans, Bibliotech Press 2017) 65 ff .

53 See Emer de Vattel , Le droit des gens ou Principes de la Loi Naturelle, appliqués à la conduite & aux affaires des Nations & des Souverains (Tome I, London 1758) 285 : ‘la Nature a établi une parfaite égalité de Droits entre les Nations indépendantes. Aucune par conséquent ne peut naturellement prétendre de Prérogative. Tout ce que la qualité de Nation libre & souveraine donne à l’une, elle le donne aussi à l’autre’; ibid (Tome II, London 1758) 310: ‘la Dignité des Nations indépendantes est essentiellement la même; … un Prince foible, mais souverain, est aussi bien souverain & indépendante que le plus grand Monarque, comme un Nain n’est pas moins un homme, qu’un Géant ’ (emphasis added).

See generally Poulantzas (n 29 ).

55 See generally Maria Tzanakopoulou , Reclaiming Constitutionalism: Democracy, Power and the State (Hart Publishing 2018) .

56 See generally Bhupinder S Chimni , ‘International Institutions Today: An Imperial Global State in the Making’, 15 European Journal of International Law 2004, 1 .

57 See Herman Melville , Moby-Dick; or, The Whale ([1851] Penguin 2012) 460–462 .

Pashukanis (n 4 ) 115.

59   ibid .

60   Ursula K LeGuin , The Dispossessed ([1974] Gollanz 2002) 116 .

Einstein (n 27 ).

62 For a contemporary view of the negotiations see generally Lawrence Juda , ‘UNCLOS III and the New International Economic Order’, 7 Ocean Development & International Law 1979, 221 .

63 See generally Jonathan L Charney , ‘The Law of the Deep Seabed Post UNCLOS III’, 63 Oregon Law Review 1984, 19 .

64 See generally Edward Duncan Brown , ‘The 1994 Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea: Breakthrough to Universality?’, 19 Marine Policy 1995, 5 (emphasis added).

65 For an overview see Gabrielle Marceau , ‘Some Evidence of a New International Economic Order in Place’, 22 Revue générale de droit 1991, 397 .

66 See Nicos Poulantzas , The Crisis of the Dictatorships: Portugal, Greece, Spain ( David Fernbach trans, NLB 1976) 12–15 . See further Bhupinder S Chimni , International Law and World Order: A Critique of Contemporary Approaches (2nd edn, CUP 2017) 506 ff .

67   James Hetfield and Lars Ulrich , ‘The Struggle Within’ in Metallica , Metallica (Elektra 1991) .

68   Nicos Poulantzas , ‘The State and the Transition to Socialism’ in T Martin (ed), The Poulantzas Reader: Marxism, Law and the State (Verso 2008) 334, 338 .

69 See C Wilfred Jenks , Social Justice in the Law of Nations—The ILO Impact After Fifty Years (OUP 1970) 16–21 . The establishment of the ILO is a consequence of the October Revolution on 1917: the ‘major step’ of establishing an organization to deal with workers’ rights was taken in Versailles in 1919 precisely to ‘dampen the attraction of Bolshevism in Western Europe’: John Quigley , Soviet Legal Innovation and the Law of the Western World (CUP 2007) 77 .

Jenks (n 69 ) 14–15.

The Soviets criticized the ILO as another instrument of the capitalist class to mask oppression of working people through the making of minor concessions: Quigley (n 69 ) 78–79.

72 See, eg, Susan Marks and Andrew Clapham , International Human Rights Lexicon (OUP 2005) 91, 163 . This is not to claim that no ‘progress’ has been made in some of these areas and at least in some parts of the world. However, the attainment of such goals in the manner proclaimed seems utopian in the current political climate around the globe. As per the World Inequality Database (< https://wid.world/> ), eg, the top 1% brought in 24.9% of the world’s income in 1920 and 19.2% in 2020. The equivalent numbers for the top 10% are 59.7% in 1920 and 52.5% in 2020.

Marks and Clapham (n 72 ) 181–185.

74 For the feedback loop between domestic and international protection of human rights, starting with the French and American Revolutions, see Antonios Tzanakopoulos , ‘Judicial Dialogue in Multi-level Governance: The Impact of the Solange Argument’ in Ole Kristian Fauchald and André Nollkaemper (eds), The Practice of International and National Courts and the (De-)Fragmentation of International Law (Hart Publishing 2012) 185, 210–215 .

See the International Covenant on Economic, Social, and Cultural Rights 1966.

See also Chimni (n 56 ) 11.

77 See Karel Vasak , ‘A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’, 30 The UNESCO Courier 1977, 29 .

78 See generally Sandra Fredman , Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008) ; Stephen Holmes and Cass R Sunstein , The Cost of Rights: Why Liberty Depends on Taxes (WW Norton 1999) .

79 See Karl Marx , ‘On the Jewish Question’ in Robert Tucker (ed), The Marx-Engels Reader (Norton & Co 1978) 26, 42–43 , esp: ‘None of the supposed [human] rights, therefore, go beyond the egoistic [human], [human] as [s]he is, as a member of civil society; that is, an individual separated from the community, withdrawn into [her]self, wholly preoccupied with [her] private interest and acting in accordance with [her] private caprice’.

80 But see Margot E Salomon , ‘Emancipating Human Rights: Capitalism and the Common Good’, 36 Leiden Journal of International Law 2023, 857 .

cf Marx (n 79 ) 42–43; Balibar (n 5 ) 72–75.

Though it is included in the Universal Declaration of Human Rights, Article 17.

83 See further Ntina Tzouvala , Capitalism as Civilisation: A History of International Law (CUP 2020) .

See also Marks and Clapham (n 72 ) 191–192.

See the insight from structural Marxism in Section 2.1. But note already the insight from one of the earliest Soviet jurists, Peter I Stuchka (Stučka), ‘The Revolutionary Part Played by Law and the State—A General Doctrine of Law in Soviet Legal Philosophy (n 20 ) 17, 51: ‘The class exploiters can never aspire to destroy or to exterminate the class which they exploit [or risk their own demise]. From this flows the adaptability , the conciliatory attitude of the class of oppressors, and its compliance … as regards the class of the exploited’ (original emphasis).

  Kelsen, Reine Rechtslehre (n 51 ) 34 ff.

See Articles on the Responsibility of States for Internationally Wrongful Acts, Part Three, Chapter II [2001] YbkILC (Vol II, Part Two).

  Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 106 [202].

Ibid, 108 [205].

See the Declaration on the Inadmissibility of Intervention, UN Doc A/RES/2131(XX) (1965); the Friendly Relations Declaration, UN Doc A/RES/2625(XXV) (1970) annex principle (c); the Charter on the Economic Rights and Duties of States, UN Doc A/RES/3281(XXIX) (1974), Article 32; the Declaration on the Inadmissibility of Intervention and Interference, UN Doc A/RES/36/103 (1981); and the serial resolutions on economic coercion adopted since 1983 (annually between 1983 and 1987, and biennially since).

91 For an overview and an assessment of the practice see Yue Cao , The Identification of Unilateral Economic Coercion under the Principle of Non-Intervention (MPhil Thesis, University of Oxford 2023) (on file with author).

92 See generally Antonios Tzanakopoulos , ‘The Right to be Free from Economic Coercion’, 4 Cambridge International Law Journal 2015, 616 .

cf Marx, Later Political Writings (n 2 ) 214.

Pashukanis (n 4 ) 157.

95 To use the terms of Oscar Wilde, they are free to ‘do uncongenial work’—in other terms they are forced ‘by the peremptory, unreasonable, degrading tyranny of want ’: Oscar Wilde , ‘The Soul of Man under Socialism’ in Linda Dowling (ed), The Soul of Man under Socialism & Selected Critical Prose ([1891] Penguin 2001) 125, 129 (emphasis added).

96 See Friedrich Engels , The Condition of the Working Class in England ([1845] Penguin 2009) 118 . See further Marx, Capital (n 30 ) 350 ff (ch 25, section 3 on ‘Progressive Production of a Relative Surplus-Population or Industrial Reserve Army’). See also Einstein (n 27 ).

cf text and nn 88–89.

See also generally Miéville (n 16 ) 117 ff, 140, 151, 289.

See Articles on the Responsibility of States for Internationally Wrongful Acts (n 87 ) Articles 49–53.

See Tzanakopoulos, ‘The Right to be Free from Economic Coercion’ (n 92 ), eg with respect to Greece during the sovereign debt crisis (2010–2018).

See, among many others, Kelsen, Reine Rechtslehre (n 51 ) 348. This is also because law, beyond being ‘embodied in language’, ‘crosses openly into morality or policy’: Moyn (n 42 ) 23. See finally LeGuin (n 60 ) 29: ‘nothing said in words ever came out quite even’.

102   Martti Koskenniemi , From Apology to Utopia: The Structure of International Legal Argument ([1989] CUP 2005) 58–69 .

103   ibid.

Indeed, as per Karl Marx, ‘The Eighteenth Brumaire of Louis Bonaparte’ in Later Political Writings (n 2 ) 43: ‘Consequently both sides can appeal with perfect justice to the constitution, the friends of order, who subverted all those freedoms, just as much as the democrats, who demanded them all outright. Each paragraph of the constitution contains its own antithesis in itself.’

105 See, eg, Mark V Tushnet , ‘Marxism as Metaphor’, 68 Cornell Law Review 1983, 281, 288–289 .

  Kelsen, Reine Rechtslehre (n 51 ) 245: ‘Wenn die generelle Rechtsnorm angewendet werden soll, kann nur eine Meinung gelten. Welche, das muß durch die Rechtsordnung bestimmt werden’.

Pashukanis (n 4 ) 134 ff.

108   Kelsen, Reine Rechtslehre (n 51 ) 350: ‘Die Frage, welche der im Rahmen des anzuwendenden Rechtes gegebenen Möglichkeiten die “richtige” ist, ist … kein rechtstheoretisches, sondern ein rechtspolitisches Problem’ (emphasis added). By this term, ‘legal policy’, Kelsen means political, moral, social, and other considerations, as he clearly states ibid , 351: ‘Normen der Moral, der Gerechtigkeit, soziale Werturteile’. He also states, ibid , that the selection among the plausible interpretations is an ‘act of will’ (‘Willensakt’), which can only be a political act.

109 The words Kelsen uses are ‘Rahmen’, ie ‘frame’, instead of range, and ‘möglich’, ie possible, instead of plausible, that I have opted for here. But that this is precisely his point is evident: see ibid , 348–349.

110 The beholder is, after all, inculcated with the dominant ideology—see Section 5 . cf generally Louis Althusser , ‘Contradiction and Overdetermination’ in Louis Althusser , For Marx ( Ben Brewster trans, Verso 2005) 89 ff . cf Kelsen (n 5 ) 13: ‘it is always some jurist who presents or interprets the law in a certain way and thus may produce – by his presentation or interpretation—an ideology’.

111 On historical interpretation see Antonios Tzanakopoulos and Anna Ventouratou , ‘Nicaragua in the International Court of Justice and the Law of Treaties’ in Edgardo Sobenes Obregon and Benjamin Sampson (eds), Nicaragua before the International Court of Justice: Impacts on International Law (Springer 2017) 215, 235–236 .

Draft Articles on the Law of Treaties with Commentaries [1966] YbkILC (Vol II) 219–220.

See, eg, Al-Dulimi and Montana Management Inc v Switzerland (GC), App no 5809/08 (Judgment of 21 June 2016) [145]: ‘In this connection, the Court would emphasise that the object and purpose of the Convention , a human rights treaty protecting individuals on an objective basis, require its provisions to be interpreted and applied in a manner which makes its requirements practical and effective ’ (references omitted, emphasis added).

114 See, eg, David Pavot , ‘The Use of Dictionary by the WTO Appellate Body: Beyond the Search of Ordinary Meaning’, 4 Journal of International Dispute Settlement 2013, 29 .

cf Kelsen, Reine Rechtslehre (n 51 ) 350: ‘Alle bisher entwickelten Interpretationsmethoden führen stets nur zu einem möglichen, niemals zu einem einzig richtigen Resultat’.

116 cf ibid , 349, 350–351, and 353: ‘Rechtswissenschaftliche Interpretation muß auf das sorgfältigste die Fiktion vermeiden, daß eine Rechtsnorm stets nur eine, die „richtige“ Deutung zuläßt’.

‘It is not the consciousness of [humans] that specifies [determines] their being, but on the contrary their social being that specifies [determines] their consciousness’: Marx, Later Political Writings (n 2 ) 160.

‘With [Hegel, dialectic] is standing on its head. It must be turned right side up again, if you would discover the rational kernel within the mystical shell’: Karl Marx, ‘Afterword to the Second German Edition [of Capital Vol I ]’ in Marx, Capital (n 30 ) 7, 11. But see further Althusser, For Marx (n 110 ) 89 ff.

See n 106 .

120 See generally JAG Griffith , The Politics of the Judiciary (5th edn, Fontana Press 1997) .

  Kelsen, Reine Rechtslehre (n 51 ) 239 ff (240: ‘Rechtsanwendung ist zugleich Rechtserzeugung’), 242 ff (‘Der konstitutive Charakter der richtlichen Entscheidung’), 350–352.

122 See Hans Kelsen , Allgemeine Staatslehre (Springer 1925) 174–175 .

  Air Service Agreement of 27 March 1946 between the United States of America and France , Decision of 9 December 1978, RIAA , Vol XVII, 443 [81]; Lac Lanoux (Espagne, France) , sentence du 16 novembre 1957, RIAA , Vol XII, 310 [16]: ‘il appartient à chaque État d’apprécier, raisonnablement et de bonne foi, les situations et les règles qui le mettent en cause’; but: ‘en exerçant sa compétence, elle prend le risque de voir sa responsabilité internationale mise en cause s’il est établi qu’elle n’a pas agi dans la limite de ses droits’ (emphasis added); cf Kelsen, Reine Rechtslehre (n 51 ) 352.

124   Althusser, For Marx (n 110 ) 113. The future, after all, lasts forever: Louis Althusser , L’avenir dure longtemps ([1992] Flammarion 2013) .

125 ‘Zwischen gleichen Rechten entscheidet die Gewalt’: Karl Marx , Das Kapital (Vol I, 10th edn, Dietz, Berlin 1961) 249 , with reference to the struggle between the equal rights of capitalist and worker in order to delimit the working day.

127 See Susan Marks , ‘Exploitation as an International Legal Concept’ in Susan Marks (ed), International Law on the Left (CUP 2008) 281, 286 .

128 See Hilary Charlesworth , Christine Chinkin , and Shelley Wright , ‘Feminist Approaches to International Law’, 85 American Journal of International Law 1991, 613, 613 .

129 See Roger Cotterrell , ‘Review of Pashukanis: Selected Writings on Marxism and Law ’, 7 British Journal of Law and Society 1980, 317, 319 .

See Charlesworth, Chinkin, and Wright (n 128 ) 613.

Marks (n 127 ) 291; cf Collins (n 18 ) 43.

‘Common sense’ is not that common: it is defined by the dominant ideology.

See Merriam-Webster Dictionary, with reference to etymology.

134 See George Orwell , Politics and the English Language ([1945] Penguin 2013) 8–9 .

135 Equally, per Orwell, ibid , ‘fascism’ has now ‘no meaning except that it signifies something not desirable’.

136 After all, they control the mechanisms for the articulation and dissemination of the dominant ideology, and thus achieve ideological hegemony. See further Louis Althusser , ‘Ideology and Ideological State Apparatuses (Notes Towards an Investigation)’ in Louis Althusser , Lenin and Philosophy—and Other Essays ( Ben Brewster trans, Monthly Review Press 2001) 85 .

  Marx, Later Political Writings (n 2 ) 211: ‘What is a “just” distribution? Don’t the bourgeoisie claim that the present distribution is “just”? And on the basis of the present mode of production, isn’t it in fact the only “just” distribution?’ cf Marks (n 127 ) 291; Collins (n 18 ) 43.

See text at nn 70–71 .

141 On the expression, which is not originally Gramsci’s, but also on the apparently contradictory predisposition, see generally Francesca Antonini , ‘Pessimism of the Intellect, Optimism of the Will: Gramsci’s Political Thought in the Last Miscellaneous Notebooks’, 31 Rethinking Marxism 2019, 42 .

See Pashukanis (n 4 ) 174: ‘“Society as a whole” does not exist, except in the fantasy of the jurists. In reality, we are faced only with classes, with contradictory, conflicting interests.’

143 Not to mention that ‘community’ implies a community of purpose that is lacking in society, and thus is a much stronger term. See generally Antonios Tzanakopoulos , ‘The Permanent Court of International Justice and the “International Community”’ in Christian J Tams and Malgosia Fitzmaurice (eds), Legacies of the Permanent Court of International Justice (Martinus Nijhoff 2013) 339 .

144 As per Vladimir I Lenin , ‘Left-Wing’ Communism, An Infantile Disorder ([1920] International Publishers 1940) 77 , ‘revolutionaries who are unable to combine illegal forms of struggle with every form of legal struggle are poor revolutionaries indeed’ (original emphasis). Pashukanis noted that Lenin ‘firmly appealed to use those “legal opportunities” which the enemy … was forced to provide’: Evgeny B Pashukanis , ‘Lenin and Problems of Law’ in Piers Beirne and Robert Sharlet (eds), Pashukanis: Selected Writings on Marxism and Law ( Peter B Maggs trans, Academic Press 1980) 132, 138 .

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