International Judicial Activism and the Commodity-Form Theory of International Law

Susan Marks ¹

Abstract

In his book Between Equal Rights: A Marxist Theory of International Law, China Miéville revisits the work of 1920s Russian jurist E. B. Pashukanis to develop a ‘commodity-form’ theory of international law. The theory serves as a valuable and instructive counterpoint to influential currents in international legal scholarship. However, this essay argues that Miéville is unnecessarily negative about the prospects for international law to contribute to progressive change. Central to his thesis is the critical insight that international law is indeterminate. He maintains that ‘for every claim there is a counter-claim and "legalistic" [anti-imperialism] is therefore ultimately toothless’. By contrast, this essay contends that indeterminacy and its antipode, determinacy, are not properties of international law. Rather, they are arguments, the emancipatory force of which is not fixed, but context-dependent.

1  Professor of Public International Law, King's College London. I am grateful to the organizers of the Historical Materialism Annual Conference 2006 for the opportunity to take part in a panel discussion of the book under review.

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