File spoon-archives/bhaskar.archive/bhaskar_1999/bhaskar.9904, message 1

Date: Sun, 4 Apr 1999 20:46:11 -0500
Subject: BHA:International law a subset of critical morality (DPF:Chapter

Dear friends,

Setting out unbidden to discuss international law, except among the fellow
fetishists of the associations of international lawyers, needs a prefatory
apology. But there are several among us teaching law and/or international
relations, and there is some small chance that this might be of interest to
them or others. If anyone has worked out the highly practical question of
the status of international law within the critical morality of DPF beyond
my weak attempt below I would be most thankful if you could turn me on to
it. The occasion of this intervention is the NATO bombing of Yugoslavia.

Pendent to the apology are an initial hermeneutic premise and a personal

Hermeneutic premise: That international law is in some degree meaningful
and relevant for dialectical critical realist and Marxist theory and

[All I seek is to exclude is buffoonery, such as the claim that
international law is "bourgeois" and therefore irrelevant. Probably this is
an unnecessary caution.]

Personal introduction: I worked as a practicing international lawyer in the
Federal Courts of the United States in the last decade of the cold war, and
have been willingly unemployed in such matters since 1990 when my number
one paying client entered liquidation (i.e. the Soviet Union). I usually
appeared against the United States, but I have also appeared on the same
side as the United States.


The move attempted here is the application of the transitive-relational /
intransitive distinction (as applied on pp 210-11 of DPF) and the dialectic
of morality (as on p 265 of DPF) to international law in the context of the
NATO bombing of Yugoslavia.

International law specifies a category (itself within the category of
morality) among the attempts to guide human action in relation to both a.
the systems of subjectivity and how individuals behave with each other, and
b. the systems of how societies relate to persons, each other, and nature.
Although all this is understandable as intransitive temporal process,
international law (as all the moral & therefore moral/legal) falls on the
transitive-relational side. This is because it is always anthropic or
social-relation dependant.

Therefore - to make the real overreach the actual - we must distinguish a.
descriptive, redescriptive and explanatory critical international law from,
b. the actually existing international law whose impaired state suggests
that what is and what should be are irreducible, all is subjectivity, and
critique not possible.

But critique is possible because there is an objective international law,
knowable in the transition of fact to value and theory to practice (a
"naturalistic critique").

And also the claim that such a naturalistic critique is impossible since
"international law" dissolves into force and subjectivity, often serves to
mask the generation of an implicit emotivist or descriptivist
"international law" reflecting the status quo ante of the actually existing
moral/legal regime. For example the proud patriot - "What we say is
international law is what it is, because we're the strongest, and a damn
good thing we are." Thus this anti-naturalistic fallacy dissolves
international law (in the transitive dimension) by reflecting the sorry
state of international law in our already existing legalized and moralized
circumstances (in the intransitive dimension).

In this "a" sense (descriptive, redescriptive and explanatory critical
international law) international law records the correspondence, which
sometimes exists, between the ready at hand account of how things are among
the powers of the world and the mist-hidden shape of how things should be.
Hidden, obscure and uncertain as this latter is, on occasion - in the words
of Francis Bacon - it is written "in such capital letters that (as the
Prophet saith) 'He that runneth by may read it.' "

World War Two caused to be spelt out such a set of capital letters. The UN
Charter (which redescribed international law by referring the use of armed
force between states to the Security Council, in light of the complementary
notions of sovereignity and aggression) is the correspondence.

There is no question whether the NATO bombing of Yugoslavia violates the UN
Charter; it does. There is no exception in international law to the UN
Charter (and the powers reserved to the Security Council) for humanitarian
wars of aggression justified by human rights as interpreted by NATO or any
state no matter how powerful and certain of its own righteousness.

Therefore as a matter of imminent critique, the merely constitutive
actually existing international law - indeed legal/moral regime - that
so-to-speak would peacefully coexist with the NATO bombing is
theory-practice inconsistent and subject to a withering dialectical
comment. In this latter regard it is sufficient to point to the general
inconvenience that could result from driving insane the officers in command
of Russia's nuclear weapons. And sorry to say, some strange stuff has
happened in the last several days - such as a Russian "test firing" of a
ballistic missile, and a prominent Russian General muttering nuclearly.

The redescription of the (post-cold war U.S. dominated) legal/moral regime
made possible in light of this theory/practice inconsistency is both a task
and a weapon of reason in the (DPF p 265) hermeneutic and material
counter-hegemonic struggle moment of the dialectic of morality that we are
now thrown into. This struggle is blocked at the moment by the growing war
hysteria to some large degree in the US, and what looks like totally in the
UK (where the advanced degree of control of the media makes e.g. the
Guardian and Murdoch indistinguishable when it comes to the joys of
bombing). In France, Germany and Italy this appears not to be the case; all
glory to - for example, there are many others - Gregor Gysi and Armando
Cossutta. But in the US while they have repeatedly in the last years
demonstrated the ability to whip up some war hysteria when convenient they
have shown no ability to sustain it. A teaching moment may follow.

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