Strategy and Tactics Final

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DRAFT: DO NOT CITE WITHOUT AUTHORS PERMISSION

Strategy and Tactics

Robert Knox1

By rushing into sordid reformist compromises or pseudorevolutionary collective actions,

those driven by an abstract desire for immediate effectiveness are in reality obeying theruling laws of thought, adopting a perspective that can see nothing but the latest news. In this

way delirium reappears in the camp that claims to be opposing it. A critique seeking to go

beyond the spectacle must know how to wait.

Guy Debord2

1. Introduction

In a 1990 interview in The Postcolonial Critic, Gayatri Spivak described how she related hertheoretical positions to her more political interventions. She argued that although theoretically and intellectuallyshe was opposed to universalism or essentialism, it wasnecessary to make a strategic choice3 when intervening politically. This strategic choiceinvolved recognising that since the language of universalism or essentialism was the languagein which political debates were conducted, one had to adopt this language in order to make anintervention. Thus, she spoke of universality because universality was in the air from theother side in the talk of female discourse ... and since I believe that one shouldnt throw awaythings but use them, strategically ... perhaps here was an item which could be used as auniversal signifier.4 This position that anti-essentialists should not simply discardessentialism, but must instead deploy essentialist arguments in concrete political contexts has come to be known as strategic essentialism.5

Yet although such a position has an evident attraction, one can immediately imagineseveral problems with it. The first problem is when one should use essentialism and when one

should not. Spivaks argument simply seems to be that there are some times that essentialismshould be used and other times when it should not, what is lacking is any broader criterion asto its use or non-use. The second problem is that of legitimation. Is it really the case that weshould always engage in debates purely on the terms that we find them? In so doing, do wenot risk winning the particular argument, whilst at the same time legitimating those broaderstructures that we wish to undermine? The combination of these two arguments points to thethird objection we can raise. If one uses essentialism whenever it is effective to do so, havingno concern as to whether ones behaviour is legitimating that very language, in what sense isones behaviour different from anyone elses? In other words, does strategic essentialism, inthis sense, not simply collapse into essentialism?

1 PhD Candidate, London School of Economics and Political Science. This paper was presented at the FourthAnnual Conference of the Toronto Group for the Study of International, Transnational and Comparative Lawand the Towards a Radical International Law workshop, so my thanks go to the organisers, my co-panellists andthe audience at these events. My deepest thanks to Irina Ceric, Giorgos Galanis, Susan Marks, China Miville,John Haskell, Eva Hartmann, Florian Hoffmann, Paavo Kotiaho, Akbar Rasulov, Owen Taylor and AlbertoToscano for enduring my endless and incoherent rants about this topic, as well as their pertinent and usefulresponses to said rants. Thanks also (and again) to Paavo Kotiaho, Chris Taylor, Owen Taylor and AkbarRasulov for their helpful comments on drafts of this article. In the typical academic inversion of corporateresponsibility, all errors of style and substance remain my own. References to online sources are accurate as of17 August 2011.2 Guy Debord, Society of the Spectacle (Rebel Press: London)at 119.3 Gayatri Spivak, The Postcolonial Critic: Interviews, Strategies, Dialogues (Routledge: New York and London,

1990) at 10.4Ibid, at 11.5 See Bart Moore-Gilbert, Postcolonial Theory: Contexts, Practices, Politics (Verso: London, 1997) at 198.


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These problems stem from the fact that, notwithstanding its characterisation, Spivaksposition is not one ofstrategic essentialism at all. Although her position clearly is one thatpays attention to the pragmatic dimensions of political interventions, these dimensions areconfined purely to the short term. Whilst she gives an account of how immediate argumentsmight be won, she gives no consideration of how to reconfigure the terms of these arguments,

thus undermining essentialism itself. At best, her position is one of tactical essentialism,paying little or no attention to the deeper or longer term aspects of the critique ofessentialism. This is not simply a matter of semantics. In conflating strategy and tactics adistinction that will be explored more fully below Spivak completely subsumes the formerinto the latter, with the essential outcome that all matters of effectiveness are reduced topurely short term considerations.

What relevance does this have for international law? Whilst international law hasalways been a central feature of international politics, it is only in recent years that it hasbecome a regular feature in the news media, and a more important part of everyday politicallife. This has been particularly evident in the centrality that international law has come toassume in the construction and contestation of foreign policy.6 There have been various

moments that were especially important in this process: beginning perhaps with Kosovo andculminating in the War on Terror and the 2003 Iraq war. Most recently, debates around thekilling of Bin Laden and the NATO intervention in Libya have been conducted in fiercely

juridical terms.7For those scholars and practitioners of international law who identify themselves as

part of the left this has raised considerable problems. The main question has been how tointervene in these debates in a distinctively left or critical fashion. This is linked to the moregeneral question of how or even whether the left can utilise international law in such away as to advance the interests of the oppressed and exploited.8 It is here that the aboveconsiderations on Spivak become relevant. As will be argued below, Spivaks strategicessentialism is a sophisticated articulation of the basic logic that underpins a great deal of

6 Perhaps the author at the vanguard of the legalist opposition to the Iraq War and the detention, rendition andtorture associated with it has been Philippe Sands. See, for example: Philippe Sands, Lawless World: Makingand Breaking Global Rules (Penguin Books: London, 2006).7 In relation to Bin Laden, Ken Livingstoneformer Mayor of Londonasked are we gangsters or a Westerndemocracy based on the rule of law?, Pippa Crerar Ken Livingstone: Killing makes Barack Obama look like amobster in The Evening Standard, 4 May 2011 available at , Boris Johnson present,Conservative, Mayor of London argued similarly: Lets be clear: Osama bin Laden was executed and forgood reason in The Telegraph, 8 May 2011, available at. Against this see Bin Laden death 'not an assassination' - Eric Holderavailable at . In the Libyan context, most argumentsmounted against the intervention have been on the grounds that mission creep will mean that the interveningforces go beyond the bounds of the UN Security Council Resolution (and hence the action will breachinternational law), see for example Ian Traynor Libya: 'mission creep' claims as UK sends in military advisers in The Guardian, 19 April 2011, available at .8 See in particular: Robert Knox, Marxism, International Law and Political Strategy, 22 Leiden Journal of

International Law (2009) 413-426; Robert Knox, Review Essay: The Degradation of the International LegalOrder, 18 Historical Materialism (2010) 193-207; Bill Bowring, Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox, 19 Historical Materialism (2011) 113-127; Umut zsu, TheQuestion of Form: Methodological Notes on Dialectics and International Law, 23 Leiden Journal of

International Law (2010) 687-707; Akbar Rasulov, The Nameless Rapture of the Struggle: Towards a Marxist

Class-Theoretical Approach to International Law, 19 Finnish Yearbook of International Law (2008) 243-294and Susan Marks, International Judicial Activism and the Commodity -Form Theory of International Law, 18European Journal of International Law (2007) 199-211.


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critical thinking on how to intervene in these debates. These accounts rely on the idea that astrategic intervention has to be made into the existing debates, whilst focusing almostexclusively on short term, tactical considerations. Thus, strategy has become systematicallyconfused with tactics, resulting in its exclusion from theoretical discourse. Those same

problems identified in Spivaks approach continually resurface in critical legal scholarship.

This article seeks to challenge the above position and construct an alternative accountof how critical international lawyers might intervene politically. To this end, Section 2 of thisarticle briefly reconstructs the distinction between strategy and tactics. In Section 2.1 this isachieved through examining the original context in which this distinction was articulated, thatof military theory. Section 2.2 turns to a slightly different sphere that of political theory and attempts to see how the originally military distinction has been understood in politicalterms. Section 3 examines how the distinction can illuminate the attempts of critical legalscholars to intervene in political debates. In section 3.1 an attempt is made to imagine what astrategic objective for critical legal theory might look like, through examining the theoreticalcommonalities of some of its participants. This is followed by section 3.2 which uses theletter written by several academics against the Iraq war as a lens to examine how critical

scholars have understood the relationship between strategy and tactics. Here it will be arguedthat these writings have fallen into the trap outlined aboveconfusing strategy with tacticsand ultimately end up collapsing into liberalism. Section 3.3 argues that one of the centralelements of this position is that it erects a rigid dichotomy between liberal legalism andlegal nihilism, in which liberal legalism cannot help but seem attractive. Section 4 examinesa number of writers in the Marxist tradition, arguing that their understanding of strategyallowed them to bridge the divide between liberal legalism and legal nihilism. Finally, insection 5, the article puts forward a specifically legal conception of the relationship betweenstrategy and tactics, developing a position of principled opportunism..2. The Anatomy of a Distinction

2.1. Politics as War

Although today strategy is perhaps seen as synonymous with the world of business, it has itsorigins in what we might call military science, and continues to be a central term in thecontemporary military world. Indeed many ofthose who used the terms strategy or tacticsin describing politics were influenced directly by these military theorists.9 Accordingly,before turning to the political usage of the term, it is wise to begin with how these militarytheorists have dealt with these notions. Carl von Clausewitz, one of the most influentialexponents of modern military theory, defined strategy as:

[T]he use of the engagement to attain the object of the war ... It must therefore give an

aim to the whole military action. This aim must be in accord with the object of thewar. In other words, strategy develops the plan of the war, and to the aforesaid aimlinks the series of acts which are to lead to it; that is, it plans the separate campaignsand arranges the engagements to be fought in each of them.10

9See Jacob W. Kipp, Lenin and Clausewitz: The Militarization of Marxism, 1914 -1921, 49 Military Affairs(1985) 184-191 and Sigmund Neumann and Mark von Hagen, Engels and Marx on Revolution, War, and t heArmy in Society, in Peter Paret (ed.) Makers of Modern Strategy from Machiavelli to the Nuclear Age(Princeton University Press, 1986) 262-280. Equally, many political actors were involved in armed strugglesand so wrote directly on issues of strategy and tactics: see Che Guevara Guerrilla Warfare (University of

Nebraska Press, 1998) and Mao Tse-tung, Problems of Strategy in Chinas Revolutionary War, in SelectedWorks of Mao Tse-tung: Volume I(Foreign Languages Press: Peking, 1967) 179-254.10 Karl von Clausewitz, War Politics and Power(Gateway Press: Chicago, 1965) at 171.


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Strategy is in essence how it is that one would fight and win a war: connecting thevarious individual battles together so as to achieve this broader objective. In contradistinctionto this is tactics, which is concerned with smaller and shorter term matters. Tactics areconcerned with how to win the individual battles and engagements of which the war iscomposed.11

If we wish to translate this metaphor into more general terms, we might say thatstrategy concerns the manner in which we achieve and eventually fulfil our long term aims orobjectives, whereas tactics concerns the methods through which we achieve our shorter termaims or objectives. The obvious conclusion here, and one that will be important to bear inmind throughout this article, is that when we talk of pragmatism or effectiveness it neednot be referring to only the immediate situation. As will be explored more fully below, anytactical intervention will also have strategic consequences. This means that when thinkingabout effectiveness, it is necessary to understand the inherent relation between strategy andtactics.12 In so doing, the distinction allows us to consider how effective particular (seeminglyshort term) interventions might be in the longer term.

The very obvious difficulty here is that in practical terms it may be quite difficult to

distinguish between the long term and the short term. This is particularly true in the case ofpolitical interventions. More than this, however, temporality does not quite capture thedistinction between a battle and a war. Although it is clear that there are temporaldifferences between the two, there could be innumerable examples of long battles or shortwars. Instead, the difference between a battle and a war (and therefore between tactics andstrategy) seems to turn on a structural distinction, lying in the particular aims and objectivesof the different types of engagement. Whilst the task of a battle is generally simply to defeat agiven enemy militarily, the task of a war will be more complex, involving the disposition offorces, decisions about whether some battles should even be fought (or whether some oughtto simply be lost) and complex political and diplomatic aspects.13 Of course this difference inkind generally does correspond to a distinction between the long and the short term, but thisdoes not represent the essence of the problem. As such, whilst temporality remains animportant part of the distinction, it cannot be the sole factor underlying it.

2.2. Organic and Conjunctural

Accordingly, it is not the case that the particular way in which the distinction operates inmilitary terms can be directly mapped onto the political and legal sphere. This is especiallytrue given that war is to quote Clausewitz again the continuation of policy by othermeans14. Despite this, there is a common thread running between military and politicaltheory on this subject, with political thinkers sharing a similar understanding of strategy as

11

Clausewitzs definition here is not taken as necessarily definitive but as both the classic definition, andrepresentative of how many have characterised strategy, thus Montgomery defined strategy as the art of theconduct of war, tactics the art of fighting (Field-Marshal Montgomery of Alamein, A History of Warfare(Collis: London, 1968), see also B.H. Liddell Hart, Strategy at 321 (Faber: London, 1967), Mao Tse-tung supranote 9 at 183, and Guevara supra note 9 at 14. The Oxford English Dictionary defines strategy as the art of acommander-in-chief; the art of projecting and directing the larger military movements and operations of acampaign in distinction to tactics whichis the art of handling forces in battle or in the immediate presence ofthe enemy.12 See Guevara supra note 9 at 18-19 and Mao Tse-tung supra note 9 at 183-184, for the necessary relationbetween strategy and tactics.13Peter Paret, Introduction in Paret supra note 9 at 3.14 Clausewtiz supra note 10 at 83. One might note here Foucaults inversion of this proposition, where he arguesthat politics is the continuation of war by other means, see Michel Foucault Society Must be Defended

Lectures at the Collge de France, 1975-76(Picador: 2003, New York). In this work he more generallydevelops a theory as to the central role of war in structuring politics, and of the utility of concepts drawn frommilitary theory in accounting for social phenomena.


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operating in the long term. In order to understand how this has been translated, it is usefulto turn to Antonio Gramscis distinction between organic and conjunctural moments and thetype of criticism that both entail:

[I]n studying a structure, it is necessary to distinguish between organic movements

(relatively permanent) from movements which may be termed conjunctural (andwhich appear as occasional, immediate, almost accidental). Conjunctural phenomenatoo depend on organic movements to be sure, but they do not have any very far-reaching historical significance; they give rise to a political criticism of a minor, day-to-day character, which has as its subject top political leaders and personalities withdirect governmental responsibilities. Organic phenomena on the other hand give riseto socio-historical criticism, whose subject is wider social groupings beyond thepublic figures and beyond the top leaders.15

Gramsci articulated this distinctionin partin order to understand the logic of strategic andtactical interventions in the political sphere.16 In this account, strategy is related to organic

phenomena, that is to say those relationships which are relatively permanent, and serve as thebasic or fundamental structure of the field in which the intervention is made. In terms ofMarxist political economy, the prime example of such a phenomenon would be the mode ofproduction (for instance feudalism or capitalism) and the relations of production of which it iscomposed. Strategic questions are those that are addressed at critiquing and overturning theserelationships.

Accordingly, we might say that strategic interventions are revolutionary17, inasmuchas they address critiquing or abolishing the basic logic of the system. Moreover, since theyaddress relationships that operate at a broader and less immediate level than other struggles,strategic decisions are likely to be informed in a greater sense by theory (hence Gramscisreference to socio-historic criticism) as it becomes more important to understand andunpack the logic of the system. However, these considerations remain prudential orpragmatic inasmuch as they aim at finding the most effective methods to achieve a goal.The difference is simply that this goal is related to structural or systemic issues.

By contrast tactics are concerned with conjunctural moments, that is to say thosewhich are not structural in a direct sense. Tactics address those transitory conflicts and battlesthat occur in the political sphere, which could be a whole range of different issues: from anindividual election, to a particular protest and so on. Consequently, there is a sense in which,in contrast to strategy, tactics would be more concerned with reform than with revolution,18since tactics deals with those occurrences which do not directly call the system into question.

15 Antonio Gramsci, Selections from the Prison Notebooks (Lawrence and Wishart: London, 2003) at 177-178.16 This should be accompanied by the explanation of what is meant in politics by strategy and tactics, bystrategic plan, by propaganda and agitation, by command structure or science of political organisation andadministration, ibidat 176.17 In The Lessons of October Leon Trotsky explicitly formulated the analogy in this way, arguing that: Bytactics in politics we understand, using the analogy of military science, the art of conducting isolated operations.By strategy, we understand the art of conquest, i.e., the seizure of power. Available at. However, one need not think of revolutionpurely in its political sense here, one could equally think of revolution in the terms that Kuhn formulated it, as aparadigm shift in a way of understanding the world, see Thomas Kuhn, The Structure of Scientific Revolutions(University of Chicago Press, 1996); for an attempt to apply this explicitly to radical politics and social sciencesee David Harvey, Revolutionary and Counter Revolutionary Theory in Geography and the Problem of Ghetto

Formation, 4Antipode (1972) 1-13.18 To some degree this will be problematised below, in the exploration of how Marxists have navigated debatesaround reform and revolution, but it serves as a useful starting point. For an exploration of the function of


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Of course, tactics and strategy do not exist in rigid isolation from each other. This isbecauseas aboveany given act which has to be reckoned with tactically will at the sametime make up the broader pattern of engagements to which strategy directs our attention.Equally, there are situations in which the very day-to-day issues may take on animmediately structural character, meaning tactical decisions will be immediately strategic.

However, these revolutionary situations are in fact extremely rare, occurring only inextraordinary historical conjunctures. For the majority of time the distinction betweenstrategy and tactics is a necessary one because the critique of the basic structural logic of thesystem is notidentical with every day struggles within it, and the critique of this structure isnot one that has an immediate appeal to the majority of people.

Thus, to go back to an earlier point, the distinction between strategy and tactics couldbe said to be a consequence of advancing a revolutionary critique in non-revolutionarytimes. This is where the issue of temporality returns, for whilst the distinction betweenstrategy and tactics is a structural one, in non-revolutionary times it will almost alwaysassume a temporal form. If the overturning of the social structure is not immediately on thecards, it must become a long term goal, whereas conjunctural issues necessarily operate in the

shorter term. Since the strategy and tactics distinction only makes sense in non-revolutionarytimes, it follows that it will almost always appear in a temporal form. To put it simply, wemight say strategy concerns finding methods to achieve long term, systemic aims, whereastactics concerns finding methods to achieve short term, conjunctural aims.

3. Strategic essentialism redux

3.1.Laws War and Legal BattlefieldsWhilst this schema might seem somewhat abstract, it is directly applicable to the way inwhich critical legal scholars have approached intervening in political and legal debates.Before examining how these interventions have been conducted, it is necessary to brieflyoutline the strategic and tactical issues at play. Critical international legal scholarship is arather broad church, composed of a number of individuals situating themselves in varioustheoretical traditions.19 That being said, it is arguable that there are a number of theoreticalpositions around which there is a degree of convergence, and mark scholars out as belongingto the critical legal tradition.20 Whilst these may not capture every figure in the tradition, theyprovide sufficient overlap for us to think about what the content of a broadly critical legalstrategy might be. In basic terms, these arewhat we might call the indeterminacy thesis,lawfare and structural bias.

These three inter-linked positions provide the basic framework through which manycritical scholars understand international law, so it is worth unpacking slightly what theymean and how they interconnect. There are many different variants of the indeterminacy

thesis: legal realist (American and Scandinavian), structuralist, post-structuralist etc.However, whilst the reasons forindeterminacy may be divergent, it can be argued that theycome to similar conclusions. In essence, the indeterminacy thesis refers to the idea that legalargument cannot be resolved on its own (legal) terms. This is because a given legalargument can be opposed by another equally valid legal argument, meaning that from

revolution in contemporary international legal scholarship, see Owen Taylor Reclaiming Revolution,unpublished paper, presented at the Eighth AnnualHistorical Materialism Conference, 2011.19See David Kennedy and Chris Tenant, New Approaches to International Law: A Biography, 35 Harvard

International Law Journal (1994) 417-460 at 418-420. This is not taken as an authoritative guide to thecontemporary movement, but rather as a historical example of the diversity of the participants in the critical

project.20See Thomas Skouteris, Fin de NAIL: New Approaches to International Law and its Impact on ContemporaryInternational Legal Scholarship, 10Leiden Journal of International Law (1997) 415-420.


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within the law various outcomes will all be equally valid. 21 As such, legal interpretationcannot be a neutral affair of applying rules to a given situation, but always involves somelevel of political choice as to which conflicting argument will apply. Whilst one need nothold to the indeterminacy thesis in order to argue that legal decisions are political, theindeterminacy thesis necessarily implies a political dimension to legal decisions.

Lawfare is a very specific term which refers to the idea that international law is apart of modern warfare, and can be used as a weapon by both sides.22 But in this instance theparticular usage implies a more general idea about the relationship between international lawand the political process. Essentially, critical scholars argue that rather than international lawbeing outside of relations of power, exploitation and domination it is already part of the

problem, that is to say that international law has played and continues to play a role inconstituting and legitimating these relations.23 This is because it at least partially creates theconditions in which political and economic power is exercisedby granting certain types ofproperty, allowing certain types of violence, locating certain agents within certain socialpositions and granting them certain powers etc.24 In this view, law is not simply a negativerelationship that constrains action, but also one that sets the conditions in which action takes

place, enabling relations of domination and exploitation.The final element is that of structural bias. The following comment from Martti

Koskenniemi gives a glimpse into how it has been understood by critical scholars.Koskenniemi argues that irrespective of the formal openness entailed by indeterminacy thesystem still de facto prefers some outcomes or distributive choices to other outcomes or

choices ... even if it is possible to justify many kinds of practices through the use ofimpeccable professional argument, there is a structural bias in the relevant legal institutionsthat makes them serve typical, deeply embedded preferences, and that something we feel thatis politically wrong in the world is produced or supported by that bias. .25 Whilst there areproblems with this specific formulation, it does the final core insight of critical international

21 For the classic account in international law see Martti Koskenniemis From Apology to Utopia: The Structureof International Legal Argument (Cambridge University Press 2005). The literature on indeterminacy is largeand varied especially given the various approaches outlined above but for some of the critical legal studiesliterature see Mark Kelman A Guide to Critical Legal Studies (Harvard University Press, 1987) especially aspages 1-63 and Duncan KennedyA Critique of Adjudication: Fin de Sicle (Harvard University Press, 1997).22 Charles Dunlap, a central figure in popularising the term, defines it as using or misusing law as asubstitute for traditional military means to achieve an operational objective in Lawfare Today: A Perspective3 Yale Journal of International Affairs (2008) 146-154 at 146.23 David Kennedy The International Human Rights Movement: Part of the Problem?, 15 Harvard Human

Rights Journal (2002) 101-125, which itself is a condensation of the argument he puts forward in The DarkSides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2004). Kennedy deals

much more explicitly with the idea of lawfare in his bookOf War and Law (2006, Princeton University Press).Along with Susan Marks article State-Centrism, International Law, and the Anxieties of Influence, 19 LeidenJournal of International Law (2006) 339-347 these are some of the primary exponents of the theoretical accountof laws role in constituting domination. Equally, there are a number of more historically focused accounts, forexample Antony Anghie, Imperialism, Sovereignty and the Making of International Law and BalakrishnanRajagopal, International Law from Below: Development, Social Movements and Third World Resistance(Cambridge University Press, 2003).24 Although obviously not directly a work ofinternational law, Duncan Kennedys analysis of the importance oflaw in conditioning the bargaining power of economic actors is both influential and exemplary in explaininglaws role in the constitution of power relations, see The Stakes of Law, or Hale and Foucault! in Sexy

Dressing Etc. (1995, Harvard University Press). Some examples of its use include Alvaro Santos ThreeTransnational Discourses of Labor Law in Domestic Reforms, 32 University of Pennsylvania Journal of

International Law (2010) 123-202 and Robert Wai Transnational Liftoff and Juridical Touchdown: The

Regulatory Function of Private International Law in an Era of Globalization 20 Columbia Journal ofTransnational Law (2001) 209-274.25 Martti Koskenniemi supra note 21 at 606-607.


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lawyers, namely that law is not a neutral framework through which all interests can beequally expressed, but one which will systematically favour some interests over others.26

Provisionally then, these positions point to a theory about law and legal argumentwhich argues that it occupies a central role in international politics. In this vision,international law helps to constitute and enable those relations that critical scholars want to

fight and is not a neutral instrument through which any actors can pursue their interest s.Crucially, this is a theory about the structure of law and legal argument, which is notconcerned with specific legal rules should be deployed or the outcomes of specific legaldecisions, but is rather about the broader the relationship between law and social phenomena.These positions stand in contrast to the mainstream, liberal understanding of internationallaw. The liberal position is the precise inverse of the critical one outlined above. In thisunderstanding, international law is seen as a determinate body of rules, through whichvarious interests could be expressed. Here international law is not said to be constitutive ofrelations of exploitation of domination, but rather to have played a crucial role in ending suchrelations historically (particularly in the case of colonialism) and in the present conjuncture tobe systematically violated and abused by various superpowers.27 In this account international

law is at worst a neutral vessel, and at best the rule of law (as distinct from particular laws)is a force for good.

This liberal understanding is one not simply held by lawyers or academiccommentators, but is also the common sense understanding of international law thatstructures public debate.28 Much of this debate proceeds on the understanding that variousimperial actions are illegal, must be shown to be so, and contested in these terms. 29 Theapplicability of the strategy and tactics distinction should be obvious here. On the one handwe have a group of scholars advancing a structural critique of international law that is, in thelimited sense outlined above, revolutionary. On the other hand, they operate in a context inwhich the majority of individual strugglesover wars, detention of terrorists, debt etc. areconducted in such a way as directly militates against this critique. Thus we have the exampleof the revolutionary critique (of organic moments) in a non-revolutionary period.

What, in this context, would a strategic objective look like? Despite the previouslymentioned theoretical and political diversity in critical international legal scholarship, thecommon organic analysis of international law provides a basic idea of the form such astrategic goal might assume. There are two obvious variants of strategy here. First, there iswhat we might call the idealist variant. In this account the primary problem to be dealt withis that the ideas of liberal legalism have a hold over policy makers and the public.Consequently, strategic aim would be to reconfigure the debate in such a way that thestructural critique of the mainstream would be strengthened, with the eventual aim ofconstituting it as a hegemonic understanding of international law.30 Second, there is a

26 See also China Miville, Between Equal Rights: A Marxist Theory of International Law (Brill: Leiden, 2005)especially at 293 and David Kennedy, The International Human Rights Movement: Part of the Problem? supranote 23.27 See Sands supra note 6; Geoffrey Robertson, Crimes Against Humanity (Penguin Books: London, 2006) andDavid Rose, Guantanamo: America's War on Human Rights (Faber and Faber: London, 2004).28 The articles cited supra note 7 give some idea of this.29 Perhaps tellingly, some of the most cogent challenges to this approach have come from those on the right ofthe political spectrum, see Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford UniversityPress, 2007). Chase Madars columns in the American Conservative available at provide a similar

perspective that remains critical of international laws role in international politics. 30 David Kennedy puts this point very strongly in Of War and Lawsupra note 23, arguing that the penetration of

law into decision making about war has led to an abandonment of responsibility . He therefore argues that [t]heway out will not be to tinker with doctrines of the laws of force. If there is a way forward, it will require a newposture and professional sensibility among those who work in this common language. Recapturing the human


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materialist approach, which would stress that the material basis of the problems outlinedabove. On this account, one cannot understand the structuring features of the law and legalargument on their own terms, or simply as ideas. Rather, they need to be understood on the

basis of the material conditions of existence that is to say those definite and necessaryrelations of production that human beings enter into independently of their will .31 As such, it

is social and economic forces and relationships which generate indeterminacy, lawfare andstructural bias. This means that a strategic goal would necessarily involve overcoming thesocial relationships that give rise to the problems outlined above, involving action totransform the material conditions of our existence.32

In practical terms, of course, these are hardly mutually exclusive positions since anymaterialist critique relies on convincing people of its validity.33 The point is that both of theseobjectives are strategic and so are not directly concerned with winning arguments on theterms of liberal legalism (that is to say, whether given actions would be legal or illegal) butrather aim at overturning those very terms.34

3.2. We are Strategists?

3.2.1. BackgroundWhilst it is clearly possible to imagine a strategic goal for critical legal scholarship, this is notsomething that has generally informed critical interventions in legal and political debates.Instead, this article will argue that one route that has frequently been taken is that of Spivak,whereby only tactical interventions occur, which are then brandedas strategic interventions,foreclosing the possibility of an actual strategic intervention. The logic of this position, andthe very real dilemma that gives rise to it, is best illustrated by examining an actual attemptby critical scholars to intervene in a legal-political situation. Since there are very fewexamples of such interventions, it is necessary to choose one that is rather well-worn, namely,the letter that several British-based critical legal academics wrote on the eve of the secondIraq war, contesting its legality.35

The background to the letter is well-known, but it is worth briefly rehearsing. In 2003the debate around the invasion of Iraq was raging. Although many opposed it on moral andpolitical grounds, the debate increasingly became dominated by the question whether or notthe war would be legal. The United States and its allies (particularly in this case Britain)argued that Security Council Resolution 1441 had revived Security Council Resolution 678

experience of responsibility for the violence of war will require a professional style discouraged by the moderninterpenetration of war and law at 170.31 Karl Marx, Preface and Introduction to A Contribution to the Critique of Political Economy (ForeignLanguages Press: Peking, 1976).32

China Miville is perhaps the most consistent and strident exponent of this position, arguing that: Tofundamentally change the dynamics of the system it would be necessary not to reform the institutions but toeradicate the forms of lawwhich means the fundamental reformulation of the political-economic system ofwhich they are expressions. The project to achieve this is the best hope for global emancipation, and it wouldmean the end of law supra note 26 at 318.33Hence Marx argued that theory itself becomes a material source when it has seized the masses in Karl MarxContribution to the Critique of Hegels Philosophy of Right: Introduction in Robert Tucker (ed.), The Marx-

Engels Reader(W.W. Norton: New York, 1978).34 One response here might be to argue that there can be no strategy because it is not possible to transcend thestatus quo at all, at points this appears to be what Spivak (supranote 3 at 101) does, when she argues since Ibelieve that given our historical position that we have to learn to negotiate with structures of violence, ratherthan taking the impossible elitist position of turning our backs on everything ... I have to learn myself and teachmyself to negotiate with colonialism itself. Some of the specifics of Spivaks position will be contested below,

but the analysis in this article appliesperhaps a fortiorito those who believe strategy is impossible.35 War Would be Illegal in The Guardian 7 March 2003, available at.


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(the ceasefire agreement that had ended the first Gulf War). On this basis, it was argued thatsince Iraq was in material breach of the Resolution, no further Security Council Resolutionwas needed to authorise the use of force. Furthermore, some in the United States argued that,in the changed conditions of the war on terror, it was not acceptablein Condoleezza Riceswords to let a smoking gun turn into a mushroom cloud.36 According to this line of

argument, rather than wait for an attack to be imminent, a state could acting in selfdefenceattack another state that was anticipatedto use force.37Whilst the US government did employ legal argument, it became especially crucial in

Britain. Here, the possibility of the invasion was fiercely contested, and the juridical aspectcame to the fore in public argument, with both sides invoking international legal argument. Inparticular, much of the legal argument opposing the war was couched in the liberal legallanguage outlined above: it was argued that the war would be illegal (hence the law wasdeterminate), that the United States was riding roughshod over international law with itsstretched interpretations (so international law was not part of the problem) and that theworld would be a better place if international rule of law was respected (indicating thatinternational law was at worst neutral and at best a force for good). Against this background,

several critical scholars decided that the time was ripe for an intervention. Although thesescholars all shared the anti-liberal critique of international law outlined above, they decided for reasons that will be explained below to intervene by arguing that the war in Iraq wouldbe illegal, thus intervening in the debate on the (liberal) terms in which it was conducted.

In this letter to The Guardian, they argued that there is no justification underinternational law for the use of military force against Iraq, since anticipatory self-defence hasno basis in international law and any use of force under the Security Councils mandatemust be indicated by clearly expressed assent. Furthermore, they argued, to go forward inthese respects would seriously undermine the international rule of law. The one concessionmade to the critique of international law was the admission that even with authorisation fromthe Security Council serious questions would remain since a lawful war is not necessarily a

just, prudent or humanitarian war.

3.2.2. The Meaning of StrategyThe impact and significance of this intervention are ultimately rather difficult to gauge. Whatis important for the purposes of this argument is that the scholars involved in the interventionidentified themselves as part of the critical tradition and explicitly reflected upon it in anarticle, attempting to account for their intervention in what they called strategic terms. Thismeans that the example provides a very useful entry point into understanding the particularconception of strategy underpinning such interventions. The piece We are Teachers ofInternational Law38set out to give an account of whether the techniques of critical legal

scholarship would preclude strategic intervention in the effort to stop a war.

39

As should beevident at this point, the way in which strategy is understood by these authors differsmarkedly from the perspective outlined in this article, as well as from how it has beenhistorically theorised.

36 Wolf Blitzer, Search for the smoking gun, < http://articles.cnn.com/2003-01-10/us/wbr.smoking.gun_1_smoking-gun-nuclear-weapons-hans-blix?_s=PM:US>.37 There are numerous accounts of this legal background, but for an accessible introduction see Christine Gray

International Law and the Use of Force (Oxford University Press, 2008) at 193-252. Of course, the position onself-defence was not one directly argued by the US government.38

Matthew Craven, Susan Marks, Gerry Simpson and Ralph Wilde, We Are Teachers of International Law, 17Leiden Journal of International Law (2004) 363-374.39Ibidat 363.


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In the piece strategy is not generally defined directly, instead it is invoked againstvarious opposing terms. The piece initially operates by counterposing strategy to ethics,arguing that the former is differentiated from the latter, by the fact that it is prudential.40Yet, as has been argued above, prudence can have many different temporal and structuraldimensions. What is important about the understanding of strategy in the article is that

prudential is understood in a very specific way. One can see how prudence is understoodthrough examining the other contexts in which the term strategy is deployed.The second counterposition that takes place is between strategy and criticism with

criticism giving way to strategizing, as mobilisations against the war deepened. What thiswould seem to indicate is that strategy responds to more immediate circumstances andarguments and so becomes more urgent when people are out on the streets, whilst criticismremains at a distance, indicating a detachment from everyday politics. This is reinforced bythe authors describing the intervention as a temporary strategic embrace of the doctrinal.41Perhaps the most telling remark is that the strategic reason for the intervention was that itmight somehow contribute to efforts to stop the war.42 In other words, the intervention wascouched in the language of liberal legalism because it was aimed at winning the argument on

its own terms, since this was the most likely method of success. A corollary of this was thatcriticism would have to be discarded.43

Prudence in this account, then, is the prudence of the short term, conjuncturalintervention. Strategy meant using those tools which would most effectively win theargument about the Iraq war and help stop it from taking place. The use of the term strategyhere then is not that which has informed traditions of political and military theory, it isprecisely the opposite; a strategic intervention is seen as a short term, conjuncturalintervention that aims to win the argument on its own terms, without considering how tochange the terms of the argument. In other words it is a tactical intervention.

3.2.3. You Say Strategy, I say Tactics, Lets Call the Whole Thing OffThis issue is not merely semantic. Although there is certainly a problem of definition, thereal problem is with the consequences that this choice of terminology has for political action.Here there are three main problems. The first is that an intervention that is successful intactical terms may nonetheless be problematic in strategic terms. The second is that in theabsence of an overarching strategic vision, there are no criteria for deciding when one shoulduse the language of liberal legalism and when one should not. The third and final problem isthat these two facts together mean that rather than a strategic adoption of liberal legalism,the vision so outlined is in fact a wholesale capitulation to it.

As is seen above, the understanding of strategy that informs the critical interventionsis composed of two moves. The first is to define strategy as prudential, the second is to

define prudential as meaning able to intervene successfully in short term , conjuncturalmoments. The profound problem with this position is that in collapsing prudence into theshort term, it forecloses the possibility that long term, structural objectives are also practicalmatters that might also form part of a prudential calculation. In so doing, it fails to note thefact that a victory in the immediate, short term context might ultimately provedisadvantageous for a longer term goal. As Clausewitz noted:

[I]f we adopt the idea that the capture of certain geographical points, the occupationof undefended provinces is something in itself we are likely to regard it as an

40Ibid.41

Ibidat 366 (emphasis added).42Ibidat 367.43Ibidat 364.


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advantage which can be picked up in passing. If we look at it so, and not as a link in achain of events, we do not question whether this possession may not later lead togreater disadvantages. How often we find this mistake recurring in the history ofwar!44

This warning is of great relevance to the type of strategic interventions advocated by theauthors. There are serious perils involved in making any intervention in liberal-legalist termsfor critical scholars. The first is that as per their own analysis liberal legalism is not aneutral ground, but one which is likely to favour certain claims and positions. Consequently,it will be incredibly difficult to win the argument. Moreover, even if the argument is won, thevictory is likely to be a very particular one inasmuch as it will foreclose any widerconsideration of the structural or systemic causes of any particular violation of the law. Allof these issues are to some degree considered by the authors.45 However, given the way inwhich strategy is understood, the effects of these issues are generally confined to theimmediate, conjunctural context. As such, the emphasis was placed upon the way that thelanguage of liberal legalism blocked effective action and criticism of the war.46 Much less

consideration is placed on the way in which advancing such argument impacts upon the longterm effectiveness of achieving the strategic goals outlined above. Here, the problemsbecome even more widespread. Choosing to couch the intervention in liberal legal termsultimately reinforces the structure of liberal legalism, rendering it more difficult to transcendthese arguments.47 In the best case scenario that such an intervention is victorious, thisvictory would precisely seem to underscore the liberal position on international law. Giventhat international law is in fact bound up with processes of exploitation and domination on aglobal scale, such a victory contributes to the legitimation of this system, making it verydifficult to argue against its logic.

This process takes place in three ways. Firstly, by intervening in the debate on its ownterms, critical scholars reinforce those very terms, as their political goals are incorporatedinto it.48 It can then be argued the law is in fact neutral, because it is able to encompass such awide variety of viewpoints. Secondly, in discarding their critical tools in order to make a

public intervention, these scholars abandon their structural critique at the very moment whenthey should hold to it most strongly. That is to say, that at the point where there is actually aspace to publicise their position, they choose instead to cleave to liberal legalism. Thus, evenif, in the purely academic context, they continue to adhere to a critical position, in publicpolitical terms, they advocate liberal legalism. Finally, from a purely personal standpoint, inadvocating such a position, they undercut their ability to articulate a critique in the future,precisely because they will be contradicting a position that they have already taken.

The second point becomes increasingly problematic absent a guide for when it is that

liberal legalism should be used and when it should not. Although the embrace of liberallegalism is always described as temporary or strategic, there is actually very littlediscussion about the specific conditions in which it is prudent to adopt the language of liberallegalism. It is simply noted at various points that this will be determined by the context.49

44 Clausewitz supra note 10 at 175.45 Craven et al supra note 38 at 369.46Ibidat 368-369.47 See Knox, Review Essay: The Degradation of the International Legal Order, supra note 8 for a fulleraccount of these problems.48 As iek observes there is always a danger that a particular demand can be incorporated into the systemwhich can with sneering hypocritical satisfaction, make the reply You wanted this? Here, have it! in Slavoj

iek Postface, in Georg Lukcs, A Defence of History and Class Consciousness: Tailism and the Dialectic(Verso: London, 2006), 151 at 16449 Craven et al supra note 38 at 367 and 374.


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As is often the case, the term context is invoked50 without specifying precisely whichcontexts are those that would necessitate intervening in liberal legal terms. Traditionally, sucha context would be provided by a strategic understanding. That is to say, that the specifictactics to be undertaken in a given conjunctural engagement would be understood byreference to the larger structural aim. But here, there are simply no considerations of this.

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

What works as a professional argument depends on the circumstances. I like to thinkof the choice lawyers are faced with as being not one of method (in the sense ofexternal, determinate guidelines about legal certainty) but of language or, perhapsbetter, of style. The various styles-including the styles of academic theory andprofessional practice -are neither derived from nor stand in determinate hierarchicalrelationships to each other. The final arbiter of what works is nothing other than thecontext (academic or professional) in which one argues.51

On this reading, the context in which prudence operates seems to the immediatecircumstances in which an intervention takes place. This would be consistent with the idea,expressed by the authors, that the strategic contextfor adopting liberal legalism was that thedebate was conducted in these terms. But the problem with this understanding is surelyevident. As critical scholars have shown time and time again, the contemporary world is onethat is deeply saturated with, and partly constituted by, juridical relations.52 Accordingly,there are really very few contexts (indeed perhaps none) in which political debate is notconducted in juridical terms. A brief perusal of world events would bear this out. 53 Thelogical conclusion of this would seem to be that in terms of abstract, immediate effectiveness,the context of public debate will almost always call for an interven tion that is couched inliberal legalist terms.

This raises a final vital question about what exactly distinguishes critical scholarsfrom liberal scholars. If the above analysis holds true, then the strategic interventions ofcritical scholars in legal and political debates will almost always take the form of arguingthese debates in their own terms, and simply picking the left side. Thus, whilst theiracademic and theoretical writings and interventions may (or may not) retain the basic criticaltools, the public political interventions will basically be liberal.

The question then becomes, in what sense can we really characterise suchinterventions (and indeed such scholars) as critical? The practical consequence ofunderstanding strategy in essentially tactical terms seems to mean always struggling withinthe coordinates of the existing order. Given the exclusion of strategic concerns as they have

been traditionally understood, there is no practical account for how these coordinates willever be transcended (or how the debate will be reconfigured). As such, we have a group ofpeople struggling within liberalism, on liberal terms, who may or may not also have somecritical understandings which are never actualised in public interventions. We might askthen, apart from good intentions (although liberals presumably have these as well) what

50As T.J. Clark argues with reference to art history, the term background (which he uses as a synonym forcontext here) is frequently invoked to side step the problem of giving a concrete account of mediation. Againstthis Clark argues it is necessary to specify the concrete transactions that are hidden behind invocations of thissort. See T.J. Clark Image of the People: Gustave Courbet and the 1848 Revolution (Thames and Hudson:London, 1973).51Martti Koskenniemi, Letter to the Editors of the Symposium, 93 American Journal of International Law

(1999) 351-361 at 356.52 Susan Marks, supra note 23 at 347.53 See the various articles cited supra note 7.


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differentiates these scholars from liberals? Because of course liberals too can sincerelybelieve in political causes that are of the left. It seems therefore, that just as in practicalterms strategic essentialism collapses into essentialism, so too does strategic liberallegalism collapse into plain old liberal legalism.54

3.3. A Tale of Two Letters, or Taking Theory SeriouslyThis tactical understanding of strategy, and its attendant consequences, is deeply bound upwith a particular understanding of the relationship between theory and practice. This isperhaps best encapsulated by Spivaks comment that [y]ou pick up the universal that willgive you the power to fight against the other side, and what you are throwing away by doingthat is your theoretical purity.55 In this understanding, theory figures as an abstract non-practical concern that needs to be discarded in order to make political interventions. Hence, inthe above account, theoretical concerns about the structure of legal argument need to be

jettisoned in order to intervene in real life political argument.The problem with such a position is that it operates with an overly rigid and

ultimately untenable distinction between theory and practice. An obvious criticism is that if

ones theoretical position is such that it is entirely useless in providing an account of how tointervene in practical debates, perhaps what is needed is a new theory. One could, however,be even more radical in this criticism, and point out that there cannot be any practice withouttheory. Gramsci argues that everyone is a philosopher because every action they take

presupposes a specific conception of the world,56 the only questions then become the degreeto which this philosophy is explicit, and how coherent it is. What this points to is the factthat every practical action is necessarily rooted in an understanding of the world, and theplace of the action within it. Thus, it is not the case that when one makes an intervention oneis throwing away ones theoretical purity, but rather that there must be some othertheoretical conception that is underlying ones action. This other conception may in factcontradict the stated theoretical position that is being thrown away.

The importance of this is that it undermines somewhat the claim that good intentionswill be enough to count in differentiating critical scholarship from liberal legalism. Moreimportantly, it points us to the fact that if theory is to be taken at all seriously, there must be asense in which it is practically enacted. However, the collapsing of prudence into tacticalconsiderations precisely denies this. The rigid distinction between theory and practice is botha cause and a consequence of the failure to specify the distinction between strategy andtactics. An important part of any understanding of strategy, therefore, involves working outhow to enact the theoretical position one claims to hold to in practical and political action.

54Again, whilst the scholars around the We are Teachers of International Law letter are taken as exemplary,

the trend of critical scholars functionally reproducing liberalism in their arguments can be found across theboard. For instance, Paavo Kotiaho has forcefully argued that Martti Koskenniemis (political) call for a cultureof formalism reproduces this same pattern: [B]y opting for the call for a culture of formalism as the practiceof freedom, which is still embedded in the traditional structure of international legal argumentation,Koskenniemi has opted to stay embedded within the same liberal theory of politics, which was the source of hisimmanent critique ... [B]y opting to enthrone international lawyers, practicing within the status quo of thetraditional framework of international legal argument, isnt Koskenniemi in fact calling for the perpetuation ofthe system, which remains his focus of attack? And even worse, isnt he doing this at the exp ense of anymovement seeking to challenge the status quo? Paavo Kotiaho, A Return to Koskenniemi; or theDisconcerting Co-optation of Rupture, forthcoming in the German Law Journal available at.55 Spivak supra note 3 at 12.56 Gramsci supra note 15 at 323. Gramscis position is not one exclusive to the Marxist tradition, there are

echoes of it in, for instance Dworkins observation that jurisprudence (that is to say the theory of law) is thegeneral part of adjudication, silent prologue to any decision at law (that is to say the practice of law), in RonaldDworkin,Laws Empire (Hart Publishing: Oxford, 2006) at 90.


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At a basic level, what might a more strategic intervention look like? China Mivillequotes David Kennedy to the effect that an alternative intervention might involve sayinginternational law doesnt know what its doing here folks.57 Such an approach does seem totake more seriously the strategic dimension of critical scholarship, but how does this actuallylookin practice? A useful example of an alternative approach can be seen in comparing yet

more letters to The Guardian, this time in reaction to Operation Cast Lead: Israels highlycontroversial intervention in Gaza.The first letter58signed by several critical legal scholarsis analogous to We are

Teachers of International Law. Couched in liberal legal language, it talks in very abstractterms about possible violations of international humanitarian law in the conflict, ultimatelyavoiding any broader political questions, such as that of taking sides.59

In contrast to this is the rather trenchant letter drafted by Petter Hallward and Slavojiek.60 This letter, which was also signed by several of the signatories of the first letter, didtake sides, arguing that [t]here is nothing symmetrical about this war in terms of principles,tactics or consequences. Israel is responsible for launching and intensifying it, and for endingthe most recent lull in hostilities.As a consequence of this [i]f we believe in the principle of

democratic self-determination, if we affirm the right to resist military aggression and colonialoccupation, then we are obliged to take sides... against Israel, and with the people of Gazaand the West Bank. International law did not feature heavily in this letter, there wereallusions to it via references to the 1967 borders and a reference to the criminal use of force,but ultimately it seems to figure much more as a rhetorical device, than as one around whichthe intervention was organised.

The obvious point is that the second letter in not organising the intervention aroundinternational law, indeed only invoking it briefly and obliquelyis able to avoid the perils ofreinforcing liberal legalism. Equally, it remains an intervention that is specifically targeted ata debate, putting forward a coherent position. The problem here though, is that preciselybecause of this, one is left wondering what the precise role of the legal scholar would behere? Is it simply to counsel against the adoption of the tropes of liberal legalism in anyintervention? Is it to adopt David Kennedys route, or to use the event to point internationallaws complicity in the problems so identified?

It is as a result of this very real dilemma that many scholars turn to a purely tacticalunderstanding of legal struggle. Whilst We are Teachers may be the most sophisticatedarticulation of this position, it is one that resurfaces again and again in critical scholarship.Many lengthier works follow a similar pattern. For the vast majority of the piece there will bea historical and/or theoretical examination of the ways in which international law has beendeeply complicit with oppression, exploitation and domination. Yet in the final part, therewill be a paragraph to the effect thatnotwithstanding the previous critiqueit is impossible

57 Miville supra note 26 at 300.58 UK must act to stop violations in Gaza, The Guardian, 14 January 2009. Available at.59The letter states, for instance As international lawyers, we remind the UK government that it has a duty underinternational law to exert its influence to stop violations of international humanitarian law in the current conflictbetween Israel and Hamas. A fundamental principle of international humanitarian law is that the parties to aconflict must distinguish between civilians and those who participate directly in hostilities. Attacks deliberatelyaimed at the civilian population and civilian objects, by any means, are prohibited, as are attacks that do notdiscriminate between civilians and combatants, or which are likely to cause harm to civilians that is excessivewhen compared to the military advantage sought by the attack. There is very little consideration as to whethereither side may bear more political responsibility for the problems of the conflict, or of the broader economic

and political logics at play.60 Growing outrage at the killings in Gaza, The Guardian, 16 January 2009. Available at.


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to give up on international law. This does not usually make explicit reference to theprevious theoretical critique, but rather argues that since international law is the language ofinternational relations (and debate about these relations) prudence demands we continue touse it. Antony Anghie puts it well when he notes:

At the very least, I believe that the Third World cannot abandon international lawbecause law now plays such a vital role in the public realm and in the interpretation ofvirtually all international events. It is through the vocabulary of international law,concepts of self-defence, human rights and humanitarian intervention that issuesof cause, responsibility and fault are being discussed and analysed, and interpretationsof these doctrines which reproduce imperial relations must be contested.61

This particular move, although not necessarily couched in terms of strategy and tactics,nonetheless reproduces the basic structure criticised above. In it, prudence is once againconfined to the short term, conjunctural sense. Yet one cannot simply brush aside such a lineof argument, especially when expressed in these terms. If the alternative to the strategic use

of liberal legalism is abandoning international law (or some other form of legal nihilism)then liberal legalism would seem to be only real option for those actually engaging inpolitical struggle.

The problem is that this counterposition of liberal legalism as against legal nihilismultimately reproduces the rigid theory/practice divide outlined above, and essentially insiststhat strategy and tactics exist to the rigid exclusion of one and other. The particular form thatthis separation takes associating the traditional meaning of strategy with theory andprinciple, and tactics with practice and prudence means that strategic concerns simplydisappear from the picture.62

In contrast to this would be a position that understood that theory is never simply anabstract consideration, but one which is always active in practice, whether implicitly orexplicitly. From this would also flow the idea that long term, structural considerations are notto be understood in opposition to prudence but rather as specific structural and temporalarticulations of prudence. On this reading, the opposition would not be between using thelaw (as a liberal) or abandoning it (as a nihilist). Rather the question is on what terms is itpossible to use the law withoutfatally undermining longer term, structural considerations.63

61 Antony Anghie, supra note 23 at 318. Bhupinder Chimni argues similarly: On the other hand, IIs[international institutions] have undergone a quantitative and qualitative transformation in the past two decades.The essence of these changes has been the use of IIs to realize the interests of a TCC [transnational capitalistclass]. IIs have come to play a central, though retrograde, role so far as third world states and peoples areconcerned. Indeed a nascent global state has emerged under the influence of the TCC and powerful Northern

states. Under these circumstances, to suggest that renewalists are condemned to the role of Sisyphus is perhapsto disarm third world peoples against the most significant contemporary embodiments of imperialist policies andstrategies. International Institutions Today: An Imperial Global State in the Making, 15 European Journal of

International Law (2004) 1-37 at 30. A similar argument can be made with respect to the articles cited supranote 24, whichin arguing for actors to alter their bargaining power through altering legal rules presupposethe continued existence in which the bargaining takes place.62 Clausewitz (supra note 10 at 173) notes that there is quite a powerful tendency to ignore strategic concernsentirely: It may sound strange, but for all who know war in this respect, it a fact beyond doubt, that much morestrength of will is required to make an important decision in strategy than in tactics. In the latter we are carriedaway by the moment: a commander feels himself borne along by a powerful current, against which he dare notcontend without the most destructive consequences.63 China Miville has argued that in fact the opposition between (neo-conservative) legal nihilism and liberallegalism is in fact a form of symbiosis in which [t]he liberal mainstream has attacked the nihilist neocons for

gravely injuring international law, and thus stressed neoconservative power; and those nihilists in turn havecomplimented international law (and by implication its advocates) by denouncing it as a mortal threat. Againstthis, he argues that neo-conservatives are not simply nihilists, but have a nuanced approach to law, and that


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This is the understanding that has driven work from within the Marxist tradition towhich this article now turns.

4. Reform or revolution? Both!

It has often been observed that there is very little work in the Marxist tradition that has

systematically sought to understand law.64

Although there is some truth to this, there is at thesame time a small but rich literature on the topic. This is the case both in generaljurisprudential terms,65 and more specificallyparticularly over the past decadein terms ofinternational law.66 Yet even if we exclude those writings that explicitly address law, thequestion of the relationship between law and revolutionary politics has been central to howMarxists have thought about political action.

The rubric under which this question has played out is usually that of the debatesaround reform and revolution. The central problem of these debatesto what degree shouldrevolutionary forces engage in action that is within the coordinates of the existing order isone that obviously has a great deal of importance to this argument. Indeed, as argued above,the distinction between strategy and tactics is one that is closely related to that of reform

and revolution. However, as will be argued below, it is not simply that strategy is asynonym for revolution and tactics for reform: rather it is the case that the Marxist traditionhas used the distinction between strategy and tactics to navigate the problem of reform andrevolution in a nuanced way. It should be noted that whilst these authors all understandthemselves as working from within the materialist tradition, the insights they provide can alsoinform the idealist strategy outlined above.

4.1. Work, Wages and Revolution: Marxs Account of the Working DayMarxs oeuvre is replete with considerations of the role that law could play in revolutionarypolitics. We can see this in his somewhat fragmented considerations of what the dictatorshipof the proletariat might look like67 and in the various programmatic statements that he

proposed or adhered to.68 However, for the purposes of this argument, what is most fruitful isMarxs analysis of the role of law in struggles around wages and the length of the workingday.

Marx understands the relationship between capital and labour to be central to thecapitalist system. In basic terms, the capitalist is able to exploit his labourers because the

liberal legalism is intensely bound up with imperialism. The point is that the false opposition betweenliberalism and nihilism is an ideological symptom of the system itself. See China Miville, Multilateralismas Terror: International Law, Haiti and Imperialism, 19 Finnish Yearbook of International Law (2008) 63-93 at72.64 See Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (Routledge and Kegan

Paul: London, 1979) at 2126.65 There are a few Marxist works dealing with general jurisprudence and the list would include: EvgenyPashukanis,Law and Marxism: A General Theory (Ink Links: London, 1978); Anthony Chase,Law and History(The New Press: New York, 1997); Karl Renner, The Institutions of Private Law and their Social Functions(Routledge Kegan & Paul: London, 1949) and Olufemi Taiwo, Legal Naturalism: A Marxist Theory of Law(Cornell University Press, 1996).66 See, for example, Susan Marks (ed.), International Law on the Left: Revisiting Marxist Legacies (CambridgeUniversity Press, 2008); China Miville, supra note 26; Bill Bowring, The Degradation of the International

Legal Order? The Rehabilitation of Law and the Possibility of Politics (2008); Akbar Rasulov, supra note 8;Umut zsu supra note 8; Sonja Buckel and Andreas Fischer-Lescano, Gramsci Reconsidered: Hegemony inGlobal Law, 22Leiden Journal of International Law (2009) 437-454.67 See Karl Marx, The Critique of the Gotha Programme, in Robert Tucker (ed.) The Marx-Engels Reader(W.W. Norton: New York, 1978) 525-541 and Karl Marx, The Civil War in France, in Robert Tucker (ed.)

The Marx-Engels Reader(W.W. Norton: New York, 1978) 618-652.68 The most obvious example here would be (written with Engels) the Manifesto of the Communist Party, inRobert Tucker (ed.), The Marx-Engels Reader(W.W. Norton: New York, 1978) 469-501, especially at 490-491.


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value of the commodities that they produce is more than that of the value of their labourpower. The capitalist pays the worker a wage that is less than the value of the commodity hegoes onto sell and the difference between these two figures is surplus value. Assuming thefixed value of a given commodity (which is determined at a social level), there are two waysin which the rate of surplus value might be increased: firstly, wages can be reduced and

secondly workers can be made to produce more in a working day (either by making themwork longer, or work harder within a given day).But this applies conversely too, and the balance of surplus value can be tipped in

favour of the working class by increasing their wages, or limiting the working day. Thus, thequestions of wages and the working day become objects of great contention under capitalism.These struggles form the basic fabric of the class struggle in its most spontaneous andelementary sense in capitalist society. These struggles are also always articulated in somelegal framework: be it the employment contract or through direct legislation. The questionthat Marx had was what to make of the significance of such struggles. In Value, Price andProfithe argued that these struggles would have to be treated in a highly cautionary way,since they necessarily presupposed the existence of the capitalist system, and simply involved

relative distributional changes:

[T]he working class ought not to exaggerate to themselves the ultimate working ofthese everyday struggles. They ought not to forget that they are fighting with effects,but not with the causes of those effects; that they are retarding the downwardmovement, but not changing its direction; that they are applying palliatives, not curingthe malady. They ought, therefore, not to be exclusively absorbed in theseunavoidable guerrilla fights incessantly springing up from the never ceasingencroachments of capital or changes of the market. They ought to understand that,with all the miseries it imposes upon them, the present system simultaneouslyengenders the material conditions and the social forms necessary for an economicalreconstruction of society. Instead of the conservative motto: A fair day's wage for a

fair day's work! they ought to inscribe on their banner the revolutionary watchword:Abolition of the wages system!"69

Marxs critique dovetails precisely with that outlined above. Fixation on the day-to-daystruggles, on their own terms, ends up precluding the transcendence of the system that causesthe problems in the first place. Against this, a demand would have to be raised which wouldcall for the destruction of the system. However, what is interesting here is that Marx does notrigidly counterpose the unavoidable guerrilla fights to the revolutionary watchword; ratherhe seems to note that both need to be part of the struggle. Indeed, he argues earlier that [b]y

cowardly giving way in their everyday conflict with capital, they [the working class] wouldcertainly disqualify themselves for the initiating of any larger movement.70 However, in thiswork he has not quite yet managed to say how these might be articulated together.

It is in this respect that Marxs seminal discussion of the regulation of the length ofthe working day in Capital becomes relevant. Here Marx is much more positive about thepotential of the everyday struggle, arguing:

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

69

Karl Marx, Wage Labour and Capital and Value Price and Profit (International Publishers: New York, 2006)at 61.70Ibid.


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capital, themselves and their families into slavery and death. In place of the pompouscatalogue of the inalienable rights of man comes the modest Magna Charta of alegally limited working-day, which shall make clear when the time which the workersells is ended, and when his own begins. Quantum mutatus ab ilo!71

What is vitally important here is that Marx argues the only way that this law was able to bepassed was because workers moved away from their isolated individualism. The struggle forthe limitation of the working day meant that the working class had to come together as aclass, and as such recognise their common interests, as well as their opposition to thecapitalist class, it also required a high degree of practical organisation and coordination. Inother words, this struggle was vital to the constitution of the working class as a politicalsubject. In Marxs vision, such a political subject the working class organised as a class-for-itselfis the only vehicle that would be capable of overthrowing capitalist social relations. Inthis way, a tactical intervention into the conjuncture the struggle for the limitation of theworking dayis framed and directed by the strategic goal of overthrowing capitalism. Ratherthan erecting an absolute opposition between liberalism and nihilism or reform and

revolution, Marx articulates a truly strategic position.

4.2. The Goal is Everything: Luxemburgs Critique of Reformism

The kernel of this position was taken up and developed in Rosa Luxemburgs polemic againstEduard Bernstein: Reform or Revolution. For a pamphlet that is so strongly associated withadvocating revolution as against reform it is interesting that Luxemburg opens with anexplicit denial of this very opposition:

At first view the title of this work may be found surprising. Can the social democracybe against reforms? Can we counterpose the social revolution, the transformation ofthe existing order, our final goal, to social reforms? Certainly not. The daily strugglefor reforms, for the amelioration of the condition of the workers within the frameworkof the existing social order, and for democratic institutions, offers to the socialdemocracy an indissoluble tie. The struggle for reforms is its means; the socialrevolution, its aim.72

Luxemburgs point then is that it makes no sense to make a rigid distinction between reformand revolution. This is because the only way in which a movement in favour of the overthrowof capitalism could be built up and gain the strength to do so is through the struggle forreforms. However, Luxemburg is at pains to suggest that nevertheless there is a distinctionbetween (what was then) the social democratic movement and bourgeois radicalismand

this was the question of strategy. Luxemburg argues that the only way in which the socialdemocratic movement is not simply one that engages in a vain effort to repair the capitalistorder is in its strategic goal of overthrowing this capitalist order.73

Whilst there is no rigid distinction between reform and revolution; in order for thesocial democratic movement to not simply collapse into bourgeois radicalism, it wasnecessary that the tactical struggles for reform be pursued not in their own sake, but preciselyin order to build up this movement. Thus, the particular tactics that are deployed, and the wayin which they will be deployed, must necessarily be shaped by this strategic goal. As DavidHarvey puts it the difference between a reformist and a revolutionary is not necessarily that

71 Karl Marx, Capital (Oxford World Classics, 1999) at 181-182.72

Rosa Luxemburg, The Essential Rosa Luxemburg: Reform or Revolution and The Mass Strike (HaymarketBooks: Chicago, 2008) at 41.73Ibidat 42.


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you do radical things all the time, but it is that at a given moment, you may all do the samething, i.e. demand living wage, but you do it with a different objective, and that is as a long-term transition.74

4.3. Towards Revolutionary Realpolitik: Lukcs Leninism

The most comprehensive formulation of this line of thinking can be found in the work ofGeorg Lukcs. Lukcs argues that the position and significance of tactics in the field ofpolitical action differ greatly in accordance with the structure and historic-philosophical rolepeculiar to those parties and classes.75 For Lukcs, there is a fundamental difference betweenrevolutionary classes and other classes, and this difference lies in their ultimate objective.Essentially, this would correspond to the distinction between critical and liberal positions; thelatters ultimate objective is one that is a moment within the given social reality, whereasin the case of the former this objective transcends it. 76 In the case of the liberal approach,the existing (legal) order is a given principle which ... determines the scope of any action, inthe case of the critical or radical approach the given order is simply something to be takeninto account for reasons of expediency.

We can understand this in terms of strategy and tactics. Lukcs argument means thatliberals do not have to worry about strategic concerns in the same way that critics do. Instead,their concerns are purely tactical, since they presuppose the existing order in all of theiractions. In contradiction to this, the only thing that distinguishes the critical position isprecisely that its ultimate objective is to transcend the existing order. In order to remaincritical, it is necessary that this ultimate objective is immanent in everyday acts. As suchtactical interventions must be shaped by this strategic orientation:

This contrast helps greatly to elucidate the tactics of the revolutionary classes andparties: their tactics are not determined by short-term immediately attainableadvantages; indeed, they must sometimes reject such advantages as endangering whatis truly important, the ultimate objective. But since the ultimate objective has beencategorized, not as Utopia, but as reality which has to be achieved, positing it aboveand beyond the immediate advantage does not mean abstracting from reality orattempting to impose certain ideals on reality, but rather it entails the knowledge andtransformation into action of those forces already at work within social realitythoseforces, that is, which are directed towards the realization of the ultimate objective.Without this knowledge, the tactics of every revolutionary class or party will vacillateaimlessly between a Realpolitik devoid of ideals and an ideology without realcontent.77

In this way Lukcs diagnoses acutely some of the problems outlined above. In conflatingstrategy and tactics to the exclusion of the former, critical scholars have oscillated between aliberal realpolitik, and a structural critique which serves as a legitimating factor (of goodintentions) but is ultimately without content. What he suggests is that the way forward is tounderstand the necessity to frame tactics in terms of strategy. This double articulation:understanding that strategic concerns are absolutely vital, and then they can only beexpressed through tactical interventions, is what Lukcs calls revolutionary realpolitik.78 At

74A Conversation with David Harvey 5 Logos: A Journal of Modern Society and Culture (2006) available at.75 Georg Lukcs, Political Writings 1919-1929 (New Left Books: London, 1972) at 3.76

Ibidat 3.77Ibidat 4.78 Georg Lukcs,Lenin: A Study on the Unity of his Thought (New Left Books: London, 1970) at 72-88.


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the very least, this will entail not adopting those methods of intervening in the conjuncturewhichwhilst successful on their own termsundermine the ultimate objective. Aside fromthis merely negative relation, Lukcs argues that every intervention in the concrete situationmust be related to a generally correct appreciation of the whole historical process.79Concretely, this would entail shifting the priority in a given intervention, not just to win on its

own terms, but to use that struggle to advance the ultimate objective, through the constructionof a movement, training its militants in struggle, connecting the party to the class etc. 80What is most interesting about Lukcs from the perspective of this paper is that he

explicitly attempted to understand how this might apply to law. Lukcs starting point is hisstandard ultimate objective, that of the abolition of capitalism. He further argues that law isa life-form created by capitalism.81 Consequently, as a strategic aim, law itself must beabolished, and this will frame the tactical use of law in any given situation. For Lukcs, thecentral point is that the working class must learn to act without the life-forms of capitalisminwardly influencing its actions.82 The concrete manifestation of this is that the workingclass must avoid fetishising the law, instead seeing both state and law as mere powerfactor[s]83 whose importance is not derived from any moral or historical essence. By

consequence, law should be granted no more importance than any other external fact of lifewith which it is necessary to reckon when deciding upon any definite course of action.84 Thismeans that the breaking of law (or conspicuous illegality) should not be romanticised oraccorded any special importance, since this law would have preserved its authority ... in aninverted form.85

For Lukcs, the only way that this can proceed is when [t]he question of legality orillegality reduces itself then for the Communist Party to a mere question oftactics, even to aquestion to be resolved on the spur of the moment. 86 In this way, the law is accorded nospecial respect, and its form and structure is not able to break up and block any socialmovement. It is simply an instrumental consideration to be subordinated to the political needsof the moment. This is the kernel of what I have elsewhere characterised as principled

Strategy and Tactics Final

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