In the fall 2018 issue of Ethics and International Affairs, my article on the Empire of International Legalism looks at the political power of legal supremacy in world politics.
"The international rule of law is a political system of governance. It rests on the expectation that governments will abide by their legal obligations and so defines what counts as appropriate behavior for states. The relationship between law and politics in global governance is better understood as an empire of global legalism than an anarchy of sovereign states. Legal justification is the lingua franca of legitimation contests among governments, as states strive to show that their preferred policies are lawful and those they oppose are unlawful. Seeing the world this way helps to show the political content of international law: neither a neutral framework that sustains all viewpoints nor an inherently progressive contribution to global order, international law is a political system of governance that advances some interests at the expense of others, and our attention should be directed toward assessing which interests are served by the turn to global legalism and at whose expense."
New from the Shanghai People's Publishing House, 2018.
'Hawks as far as the eye can see' - America's alarming foreign policy consensus.
My new post at Vox.com on April 25 2018.
When the UN Charter made it illegal for governments to go to war with each other, it created the first ever general legal ban on the use or threat of force by one state against another. This has been widely hailed as a dramatic contribution to world order – Michael Byers called it “one of the twentieth century’s greatest achievements.” My article on the ‘Permissive Power of the Ban on War’ opens up this conventional wisdom in two ways. First, I show that the UN Charter does not quite ban war - instead, it regulates the reasons that states may go to war. It is therefore as much a permissive rule as it is a constraining rule. Second, I suggest that much of the impact of international law in world politics comes through this permissive function, and that recognizing it is an important step toward appreciating the close connections between international legalization and global power politics.
In the constellation of fake holidays, International Clash Day is a new star that burns a little brighter every year. Invented in 2013, February 7th celebrates the British band who added sharp politics to the energetic, polyglot music of punk rock in the late-1970s. Their message embraced human rights but with a twist: they saw the possibility that law can be the enemy of human rights rather than its savior.
In contrast to the nihilism of the Sex Pistols and the cartoonism of the Ramones, The Clash offered a rock ’n roll course in political philosophy. It begins with seeing where the sharp end of the state is felt by regular people. Their songs speak of people’s daily lives in the face of police, the military, courts, and laws that all carry the possibility of violence.
Joe Strummer and Mick Jones were the principal songwriters. Their song Know Your Rights amounts to a primer on the difference between rights in theory and in practice. Billed as “a public service announcement… with guitars” it tells the audience to
Know your rights
All three of them
Number one: you have the right not to be killed
Murder is a crime
Unless it was done by a policeman - or an aristocrat
Number two: you have the right to free money
As long as you don’t mind a little investigation, humiliation, and
if you cross your fingers… rehabilitation!
Number three: you have the right to free speech
As long as are you aren’t dumb enough to actually try it
The song comes from knowing that legal rights are interpreted and applied by the state itself. In practice, the value of these rights depends on how this interpretation and application are done. To be shot dead on the sidewalk is presumably a wrong. But whether it’s a legal wrong depends on who did it, why, where, and to whom. The legal and political meaning of killing depends on how the state draws lines around accountability. Police badges, stand your ground laws, citizenship status, declarations of war, and skin color are formal and informal features that affect legal accountability.
The pragmatic realism of The Clash could come across as mere cynicism - that law promises one thing but delivers another - but it’s also a foundation for a political worldview that challenges the liberal common-sense.
At the heart of the standard view is the belief that what’s most important is following the rules. These might be rule of law or rules of global governance. The Clash remind us to ask why these rules are the rules and to wonder about who benefits from rule following. This turns attention to the political content of the rules. The injunction to ‘follow the rules’ starts to seem less like a universal good and more like a partisan intervention in long-running social conflicts.
In Julie’s Been Working for the Drug Squad they tell of their friends caught in punitive jail sentences for casual drug offenses. The bureaucratic function of judges - to impose penalties upon rule breakers - feels indistinguishable from the politics of race, class, and power that went into making the law in the first place.
And then there came the night of the greatest ever raid
They arrested every drug that had ever been made
They took eighty-two laws
Through eighty-two doors
And they didn't halt the pull
Till the cells were all full
'Cause Julie's been working for the Drug Squad
They put him in a cell, they said 'you wait here'
You got the time to count all of your hair
You got fifteen years
That's a mighty long time
The liberal faith in law assumes that it protects the individual against the state. The Clash point to something else: that ways that law serve some interests at the expense of others. Instead of a neutral framework that benefits everyone it is better seen as a political structure that allocates power and privilege.
If we were talking about tax law all of this would make for an uncontroversial point. It is easy to see that while tax law imposes its obligations on everyone equally it also favors some people, some kinds of income, some kinds of wealth, at the expense of others. It produces winners in society and also losers, and political fights over tax law are about who sits in which category.
But the idea that law creates both winners and losers becomes much less popular when it moves to the world of international human rights. In global governance, an enchanted view of law is common; it assumes that the rules are good for everyone and that there are no losers.
On the grandest scale, good governance in world order is often seen as requiring faithful adherence to international law. If only governments were more committed to international human rights treaties then then we could be rid of torture, repression, and all the rest. This is what Stephen Hopgood has called ‘Human Rights’ in the uppercase sense - the collection of treaties, states, courts, and activists who have been granted formal power to oversee, criticize, and perhaps even prosecute violations.
The Clash look instead for what Hopgood calls ‘human rights’ in the lowercase. This is the lived experience of people in relation to state violence. From this perspective, the state is likely felt as the main danger rather than a source of protection. It sees human rights as a struggle between the person and the government - it exists when you want to do something that the state wants to prevent. By persisting, you risk a baton to the back of the head, or pepper-spray to the face, or jail or death.
What is at stake here are two different views of the relationship between law and politics. On the one side, ‘Human Rights’ seeks centralized political and legal institutions to implement rules and laws, on the theory that these constrain governments violence against people. On the other, ‘human rights’ sees the danger that these will become more tools in the hands of the state, and likely to favor the state rather individuals.
The Universal Declaration of Human Rights guarantees a right to freedom of peaceful assembly and association. This is a cornerstone of uppercase Human Rights and in theory enables political protests. In practice, however, it is likely that a permit is needed to hold a public rally and so the practical experience of this right - that is, its lowercase version - depends on the terms that the state places on these permits. In the US, local authorities regulate protests in the interests of traffic flow, pedestrian access, safety, and fairness. They may also require that organizers buy insurance and perhaps reimburse for security. The terms of the permit, and thus whether an assembly is lawful or not, are decided by the government.
The allure of law is strong in liberal internationalism and faithful compliance with international law is often seen as a path to good governance. Senator Cory Booker and law scholar Oona Hathaway recently criticized Secretary of State Rex Tillerson for suggesting that US troops might remain in Syria after its fight with ISIS is over. Military occupation violates international law when it is not justified as self-defense and if the US violates the UN Charter in this way it would “undermine America’s hard-earned global leadership as a champion of law-bound international action, perhaps irreparably.”
The Clash tell a little of what this law-bound global leadership looks like to people in Cuba, Nicaragua, and Chile. In Washington Bullets Joe Strummer sings
Oh! mama, mama look there!
Your children are playing in that street again
Don't you know what happened down there?
A youth of fourteen got shot down there
The kokane guns of jamdown town
The killing clowns, the blood money men
Are shooting those Washington bullets again
In the lowercase version, the lived-experience of human rights is undermined rather than protected by American military activities. Personal safety requires that people find a way to avoid getting hit by all those Washington bullets. Chinese, British, and Russian bullets are no better. Human welfare - and human rights - are threatened by the military adventures of powerful governments, regardless of whether they aim to prop up or topple local authority.
The language of law and lawfulness is seductive. It promises a well-ordered world in which formal rights are defended by formal institutions. But The Clash knew well that the law comes from the state and its most natural application is by the agents of the state in pursuit of the goals of the state. It is not about protecting the little guy.
To be sure, the official institutions of Human Rights can be useful to people engaged in struggles against their state. Law and legal institutions are welcome tools for victims looking for a way to fight back or get redress for wrongs. Prisoners at Guantanamo, Evin, Wormwood Scrubs, and elsewhere search for legal paths to improve their conditions and they are sometimes successful.
But we should be honest about which way the law is looking. It encodes the interests of the state and is interpreted and applied in a manner that reflects them. This is not a novel idea - Hannah Arendt wrote Eichmann in Jerusalem to explore what happens when bad policies are legalized by the state and Judith Shklar wrote Legalism on courts’ power to decide political questions.
Today, Trump’s indifference to international human rights provokes a liberal backlash premised on nostalgia for a past that never was. The Clash might say bollocks to both of camps. Their songs offer a third way on human rights. Neither the legalism of international treaties nor the laissez faire of global capital. It is a view that they learned through experience in London in the 1970s, as squatters, buskers, and Carnivale-goers, in the face of racist gangs, police violence, and the bureaucracy of the dole.
There may be a tradeoff between Human Rights and human rights. The first empowers governments to define what people can and can’t do. The second sees state power as the source of the problem itself. To resolve the tension, The Clash offer a practical suggestion in the song Working for the Clampdown.
Kick over the walls
Cause governments to fall
How can you refuse it?
Let fury have the hour, anger can be power
Do you know that you can use it?
And in White Riot, they follow up to ask “Are you taking over or are you taking orders?”
For The Clash, human rights exists in the fight between the state and a person. It comes alive in the desire of a person to do what the government does not want them do to. In that fight, the laws are likely on the side of the state. Investing more power in states and laws may be a backward step.
The Clash tells stories from below, of regular people who find themselves targeted by powerful institutions and remind us to listen to their stories. Their objective - and the central premise of punk rock as a political movement - is to create space in which people can live outside the lines that are drawn for them by others and not be beaten up, jailed, disappeared or killed for it. To get there, they chart a refreshingly clear philosophy on the relationship between law and politics. On International Clash Day, turn up the volume and remember to let fury have the hour.
First published for #InternationalClashDay 2018 at http://blog.press.princeton.edu/2018/02/07/ian-hurd-everything-i-know-about-international-human-rights-i-learned-from-the-clash/
photo by author
Copy #1 has arrived.
My new book 'How to Do Things With International Law' appears this fall. It looks at the politics of international law and the law of international politics. I address the myth that international law is a civilizing force in world politics, and look instead for how governments use international law to advance their interests. It offers an alternative to liberal and realist approaches by highlighting how international law can enable state power through legitimizing policies on war, drones, torture, and more.
The journal of Contemporary Security Policy has a new special issue on targeted killing and changing norms of international order edited by Jodok Troy and Martin Senn.
Details at http://bit.ly/2vyfAuF
The UN Security Council's imperial authority over international affairs is limited only by the requirement that the P-5 agree with each other on its use. It constitutes a kind of internally compromised hegemony of the Great Powers. My new essay at e-ir is here:
A comprehensive look at international organizations in contemporary politics, law, and sociology. Forthcoming November 2016.
Workshop for graduate students and others on international law and international organization at Northwestern University in Chicago Monday December 5th 2016. The workshop aims to support new research on interdisciplinary topics and approaches to the history, law, and politics of international organizations and international legalization. Feel free to share the announcement below.
The ban on war in the UN Charter is often celebrated for restricting the reasons that governments can go to war. But those limits are also empowering for governments: the Charter authorizes governments to use force in self-defense, and they have shown themselves eager to make use of that authority. This facilitates the use of force by states rather than limiting it.
By creating the legal category of 'self-defense,' international law gives to states an iron-clad legal rationale to legitimate their wars. And over time, the category has expanded as powerful states have used it to justify ever broader military interventions in the world. My new article shows the permissive power of international law on war and suggests that the ban on war may make it easier, not harder, for governments to go to war.