GLOBAL JUSTICE AND SOCIAL CONFLICT
The Foundations of Liberal Order and International Law
Tarik Kochi
For Alice.
CONTENTS
Acknowledgments
1
2
3
Introduction: Justice, Liberal Order and International Law
1
The ‘Failures’ of the Global Liberal Legal Order
25
International Law in Crisis?
25
Liberal Pragmatism and Moral Humanitarianism
27
Global Liberal Order, Global Security, Globalised Terror
35
Contained Prosperity, Global Inequality
43
Transnational Power, Transnational State Apparatuses, Transnational Law
53
Natural Law, Natural Rights and Property
64
Between Human Fellowship and Unsocial Sociability
64
Aristotle, the Stoics and Property
71
Cicero, Private Property and Belligerent International Law
81
From Natural Law to Natural Rights – Gratian, Aquinas, Ockham
92
Hugo Grotius and Contradictory International Law
104
Kant, Unsocial Sociability and Illegitimate Colonial Property
124
Liberalism, Violence and Inequality
132
A Paradox of Property
132
John Locke and the Right to Accumulate
136
Gerrard Winstanley, Illegitimate Property and Common Preservation
149
Rousseau, Virtue and Inequality
154
Adam Smith, Opulence and the Liberal Justification of Economic Inequality
158
The Pin Factory and the War Factory
168
4
5
War and Violence within Liberal Political Economy
176
Justice and Constitutional Antagonism
182
Constitutional Antagonism
182
Aristotle and Class Conflict
188
Polybius, Livy, Cicero and Constitutional Conflict
199
Machiavelli, Neo-Greek and Neo-Roman Republicanism
207
From Liberty to Liberalism – David Hume and James Madison
215
Hegel, Struggles for Recognition and the Ethical State
221
Marx and the ‘Republic of Labour’
229
Social Reproduction as Struggle – Benjamin, Gramsci, Poulantzas
237
Critical Theory and Social Antagonism
245
A Global Constitutional Question
253
Questions of Democracy and Legitimacy
253
Overlapping Global Constitutional Projects
256
The Danger of (Neo)Liberal Cosmopolitan Global Constitutionalism
264
The Public Role of International Law
281
Bibliography
289
ACKNOWLEDGMENTS
Introduction
Justice, Liberal Order and International Law
Many would struggle to speak the words ‘global justice’ without a sense of indignation. It is
hard to say these words without the attached feeling that far too many things are
overwhelmingly wrong with this world and that so much of human life could and should be
organised in a better, fairer, and less cruel manner. For too many on this earth life is marked
by an endless parade of injustices, harms, wrongs and suffering. This does not occur naturally,
but is done by some to others and often takes place at arm’s length through political, economic
and bureaucratic organisations, and via the nudging of everyday life and human action in
specific directions by normative beliefs, values and rationalities widely peddled and accepted
as ‘common sense’. The occurrence of injustice is also very direct, it is the violence of a lack
of food, clean water or medicine set against the very secure and comfortable lives of the
affluent, it is the violence of inequality, debt, poverty, unemployment and the drudgery of low
paid work set against the dreamscape of the advertising billboard or Hollywood film. It is the
violence of discrimination and exclusion, the physical violence perpetrated in the home or in
the local neighbourhood, and the military violence of civil and interstate war. Such injustice is
‘violent’ as it constitutes an active violation of human dignity. Injustice is a violent assault
upon a dignified life, and a dignified life – for all – requires, at least, economic and formal
equality, freedom, and democracy.
Yet, to speak about injustice and about what constitutes global justice immediately invites
disagreement. We disagree over what is seen, over how to see, over what is valued and over
how to value. We disagree over causes and the shape of future responses. We disagree,
fundamentally, over what constitutes an idea of ‘justice’ let alone agree on an idea appropriate
for an entire world marked by inequality, poverty, conflict, economic crisis, racial, religious
and gender oppression, and environmental catastrophe. Disagreement, particularly over what
constitutes social and economic justice and over how to realise this, sometimes takes place
through polite debate and discussion. Yet disagreement is also expressed through conflict,
through acts of violence, war, revolution and counterrevolution. In this, far too often, arrogant
and fanatical voices holding extremist views eagerly shout down their many others, trying their
best to do ‘right’, and helping to wreck the world in the process.
It is hard then to speak about global justice without thinking also about social conflict, about
moral and ideological disagreement, about class conflict and class struggle, about wars local
and global, about civil war, and revolution. Global justice and social conflict are linked, the
attempted realisation of the former runs into the latter. Understood in this sense, at the heart of
global legal, political and economic relations resides an idea of struggle. Both the global order
and international law are constituted and beset by, as well as actively shape, plural, ongoing
conflicts and struggles in which social actors and institutions attempt to realise differing visions
and ideas of social and economic justice.
The current structure and form of early 21st century global order and international law owe
much to an array of conflicts and struggles stretching across the 20th century. These range from
colonial and anticolonial struggles, struggles over gender, sexual and racial emancipation and
equality, early ecological struggles, and the struggles of organised labour, both social
democratic and revolutionary socialist. The shape of the contemporary global order and
international law owe much also to capitalist class struggles and the expansion and
entrenchment of capitalist relations of production, exchange and finance across the world.
Developing out of Western Europe and North America, the 20th century saw the eventual
globalisation of a ‘liberal’ and ‘capitalist’ form of social organisation or ‘world system’ forged
through ‘World Wars’, a ‘Cold War’, and colonial and labour conflicts.1 A capitalist world
system grew also out of national, international and transnational legal, political and economic
institutions built upon the values of liberalism, liberal-democracy, private property, capitalist
accumulation and free markets. From 1945 these values formed the ideological heart of an
emerging global liberal order assembled, led and enforced by the outward expansion of US
capitalist class and state power.
In this context international law and institutions of global governance have formed a field of
debate, argumentation, contestation and struggle over how to properly organise and realise
alternate normative approaches to global justice, especially in relation to questions of war and
conflict, national and global economic development, trade and finance, human rights and state
sovereignty. Predominantly however, the form, content and policy direction of international
law, global governance and global economic development has been largely directed by
Western, liberal voices arguing the benefits of the globalisation of capitalist economic and
social relations.2 This ‘liberal cosmopolitan’ and ‘liberal internationalist’ spirit of international
law and global order has held out to humanity the hope of peace and prosperity modelled on
an idealised interpretation of the modernisation path taken by Western liberal states.3
1
See generally: Immanuel Wallerstein, World Systems Analysis: An Introduction, (Durham: Duke University
Press, 2007); Eric Hobsbawm, The Age of Extremes: The Short Twentieth Century, 1914-1991, (London: Abacus,
1994).
2
See generally: Martti Koskenniemi, The Politics of International Law, (Oxford: Hart, 2011); Antony Anghie,
Imperialism, Sovereignty and the Making of International Law, (Cambridge: Cambridge University Press, 2005);
Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World
Resistance, (Cambridge: Cambridge University Press, 2003).
3
See generally: Beathe Jahn, Liberal Internationalism: Theory, History, Practice, (Basingstoke: Palgrave
Macmillan, 2013); Boaventura De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and
Emancipation, (London: Butterworths, 2002); Gilbert Rist, The History of Development, (New York: Zed Books,
2014).
Over the course of the 20th century liberal states of Western Europe and North America (as
well as Australia) held out a promise of ‘social justice’ built upon the ideas of social liberalism
and social democracy. Albeit to a highly varied extent, this involved the liberal-democratic
steering of capitalism through Keynesian policies of nationally regulating capitalist economies,
the redistribution of wealth, and state intervention and the provision of welfare to reduce
inequality, enable human capabilities and social rights, and minimise social harms.4 Yet such
an idea stood as an exception within the post-1945 global liberal order, confined to the rights
of ‘citizenship’ (for some) within nation-states.5 The idea was only vaguely and never
realistically extended through the principles and institutions of international law, international
human rights and international development, and concrete attempts made by many postcolonial
and ‘Third World’ states to more fairly reimagine and reorganise a ‘New International
Economic Order’ were largely resisted and undermined by wealthy liberal states in the West.6
Further, the period of capitalist economic prosperity which funded the welfare programs of
liberal states was dependent upon the emergence of a global economic system built on
colonialism and upon neo-colonial forms of economic exploitation, dependency and
underdevelopment across the Third World. Such a system was held in place and ‘secured’ by
the exertion and supremacy of US economic, military, political and cultural power.7
4
Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism, trans. Patrick Camiller,
(London: Verso, 2014).
5
See generally: Richard Peet, Unholy Trinity: The IMF, World Bank and WTO, 2nd ed. (London: Zed Books,
2009); Alain Supiot, The Spirit of Philadelphia: Social Justice vs the Total Market, trans. Saskia Brown, (London:
Verso, 2012); Samuel Moyn, The Last Utopia: Human Rights in History, (Cambridge, MA: Belknap Press, 2010).
6
See generally: Rist, The History of Development; Sundhya Pahuja, Decolonising International Law:
Development, Economic Growth and the Politics of Universality, (Cambridge: Cambridge University Press,
2011); Luis Eslava, Michael Fakhri and Vasuki Nesiah, Bandung, Global History and International Law: Critical
Pasts and Pending Futures, (Cambridge: Cambridge University Press, 2017); Stephen Hopgood, The Endtimes
of Human Rights, (Ithaca: Cornell University Press, 2013); Samuel Moyn, Not Enough: Human Rights in an
Unequal World, (Cambridge, MA: Harvard University Press, 2018).
7
See generally: Samir Amin, Capitalism in the Age of Globalisation: The Management of Contemporary Society,
(London: Zed Books, 2014); Costas Douzinas, Human Rights and Empire: The Political Philosophy of
Cosmopolitanism, (Abingdon: Routledge-Cavendish, 2007); Michael Hardt and Antonio Negri, Empire,
From the 1970s and 80s these territorially limited social liberal and social democratic justice
programs were rendered increasingly problematic as Western capitalist economies suffered a
sustained series of crises linked to profitability, overproduction, oil prices, fiscal deficits and
post-Fordist changes in labour. Tied to this many Third World states were plunged into a
widespread debt crisis.8 In response, over the course of the late 20th and early 21st centuries
many of the national economies of Western liberal states and states in the developing world,
and eventually, the global capitalist economy and global liberal order, were reoriented and
reorganised around a vision of ‘global justice’ articulated by an intellectual and political
tradition of ‘neoliberalism’.
Neoliberalism is a political ideology, an economic and social theory, and a governing
rationality which takes an extreme interpretation of the liberal ideas of freedom, economic
agency, private property ownership, self-interest, and competitive market rationality and
efficiency found in the work of 17th and 18th century thinkers such as John Locke and Adam
Smith. In response to communist and socialist planned economies, and in response to the social
liberal and social democratic regulation of capitalism, neoliberal thought has articulated a
theory of global justice and prosperity based upon the freeing-up or ‘disembedding’ of
capitalist markets so as to allow the supposed benefits and efficiencies of economic
competition, privatisation, profit maximisation, commodification, deregulation, and private
and corporate ‘self-interest’ to seep into and reanimate all aspects of human social and political
(Cambridge, MA: Harvard University Press, 2001); Michael Mann, The Sources of Social Power, Vol. 3: Global
Empires and Revolution, 1890-1945, (Cambridge: Cambridge University Press, 2012); Michael Mann, The
Sources of Social Power, Vol 4: Globalizations, 1945-2011, (Cambridge: Cambridge University Press, 2013);
Mark Neocleous, War Power, Police Power, (Edinburgh: Edinburgh University Press, 2014).
8
See generally: David Harvey, The Condition of Postmodernity: An Inquiry into the Origins of Cultural Change,
(Cambridge, MA: Blackwell, 1990); Robert Brenner, The Economics of Global Turbulence, (London: Verso,
2006); Peet, Unholy Trinity; William I. Robinson, Global Capitalism and the Crisis of Humanity, (Cambridge:
Cambridge University Press, 2014).
life, governance, self-understanding and self-realisation. 9 Neoliberal rationality is ‘violent’ in
the manner that its proponents intellectually, ideologically, discursively and institutionally
attempt to reorganise the whole of human thought and human action. Neoliberal rationality
disregards and tramples upon all other modes of human self and social understanding, it
actively erases all other ways of thinking and being together, and it attempts to decimate
egalitarian approaches to organising social, economic and political affairs.
The entrenchment of neoliberal rationality has taken place as a creeping revolution waged by
transnational capitalist class power, carried out as an assault upon organised labour and then
subsequently continuing to push against weakened and disorganised labour and leftist political
movements. Neoliberalism has become the ‘legitimate’ and dominant discourse and
widespread economic and political ‘common sense’ of many right-wing, centrist and centreleft political parties, central bankers, multinational corporations, media organisations, credit
agencies, bureaucracies, think tanks, academics, economists, financiers, lawyers, judges,
mangers, ‘experts’, arbitration bodies and global governance organisations such as the World
Bank, International Monetary Fund and World Trade Organisation. As such, in the early 21st
century, the global liberal order is now heavily saturated with and dominated by neoliberal
rationality. In this an array of public and private global governance institutions, treaty
arrangements and transnational regulatory obligations can be seen to form something of a
For differing accounts of ‘neoliberalism’, see generally: David Harvey, A Brief History of Neoliberalism,
(Oxford: Oxford University Press, 2005); Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth
Revolution, (Brooklyn: Zone Books, 2015); Colin Crouch, Post-Democracy, (Cambridge: Polity Press, 2004);
Robinson, Global Capitalism and the Crisis of Humanity; Stephen Gill, Power and Resistance in the New World
Order, (Basingstoke: Palgrave McMillan, 2003); Gilbert Rist, The Delusions of Economics: The Misguided
Certainties of a Hazardous Science, (London: Red Books, 2011); Wolfgang Streeck, How Will Capitalism End?:
Essays on a Failing System, (London: Verso, 2017); William Davies, The Limits of Neoliberalism, (London. Sage,
2016); Werner Bonefeld, The Strong State and the Free Economy, (London: Rowman and Littlefield, 2017);
Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism, (Cambridge, MA: Harvard
University Press, 2018); Kenneth Veitch, “Law, social policy, and the neoliberal state.” In Neoliberal Legality:
Understanding the Role of Law in the Neoliberal Project, ed. Honor Brabazon, (Abingdon: Routledge, 2017);
Chris Butler, “State Power, the Politics of Debt and Confronting Neoliberal Authoritarianism.” Law and Critique
29, (2018) 311–331.
9
fragmented, neoliberal global ‘constitutional’ order limiting and disciplining the sovereignty
of states, and curbing and undermining democratic attempts to regulate capital.
The global neoliberal order is unstable and exemplifies many of the worst ‘creative-destructive’
tendencies of capitalist accumulation and capitalist social organisation. The neoliberal shift in
national and global governance policy has resulted in moments of extreme economic crisis,
such as the global financial crisis of 2007-8 and subsequent economic recession affecting much
of the Global North and parts of the Global South. The global neoliberal order has produced an
increase in global social inequality and the enrichment of elites and economic minorities at the
expense and impoverishment of the many.10 Further, under the banner of the ‘War on Terror’,
Western neoliberal states in the 21st century have engaged in largescale military violence and
domestic surveillance in the name of ‘security’. As such, neoliberal policy has created and
presided over a global order of injustice. In response to this situation there has emerged a
variety of fragmented ‘counter-movements’ stretching from leftist social movements which
challenge at local and global levels neoliberal globalisation and global governance, to, more
worryingly, a right-wing reframing of neoliberal ideology drawing upon nationalist,
xenophobic and fascist sentiments.
While fractures are opening up and appearing within the global neoliberal order’s veneer of
legitimacy, neoliberal rationality still remains a powerful intellectual and policy discourse
which dominates much of the present. Neoliberal rationality has colonised much of
contemporary legal, political, economic and social thought, it dominates the everyday
organisation of social and economic justice, heavily influences how many people think about
10
See generally: Thomas Piketty, Capital in the 21st Century, trans. Arthur Goldhammer, (Harvard: Harvard
University Press, 2014); Alvaredo, Facundo., et al., World Inequality Report 2018, World Inequality Lab, https:
//wir2018.wid.world/.
their own lives and the lives of others, and shapes the direction of human social reproduction.
In radically intensifying key normative concepts taken from the tradition of liberalism, and
abstracting these further from historical and political context, neoliberalism represents a ‘onedimensional’ ideology and normative order of reason which paints as natural, rational,
universal and as common sense a very specific and warped idea of how to organise human
social relations. When unchallenged the sheer weight of neoliberal thought helps to produce a
mass cultural dementia which constantly impresses upon every social situation, political policy
and legal decision, an inability to think otherwise. Yet, the idea of justice, which is not
exhausted by the arrogance, extremism, violence and fundamentalism of neoliberal thought,
demands that we continue to think otherwise. An idea of justice demands that we engage in
critical thought, that we imagine other possibilities, and that we attempt to remember the rich
variety of other ways in which humans have approached questions of social and economic
organisation.11
Emerging from political and social movements in response to the injustice of the current global
situation are a rich variety of alternative approaches to the idea of global justice which attempt
to reimagine human social and political relations. Many of these approaches often draw upon
‘non-Western’ intellectual and political traditions stemming from the Global South.12 Quite
often however many of these approaches are pushed to the fringes of global public policy
debates which are still heavily dominated, shaped and influenced by Western intellectual
traditions and by the varieties of liberal thought. Given this predominance there remains an
11
In relation to justice, see generally: Ernst Bloch, Natural Law and Human Dignity, trans. Dennis J. Schmidt,
(Cambridge, MA: M.I.T. Press, 1996); Judith N. Shklar, The Faces of Injustice, (New Haven: Yale University
Press, 1990); Jacques Derrida, Specters of Marx: The State of Debt, the Work of Mourning and the New
International, trans. Peggy Kamuf, (New York: Routledge, 1994).
12
See generally: Boaventura De Sousa Santos, Epistemologies of the South: Justice Against Epistemicide,
(Abingdon: Routledge, 2016); Massimo De Angelis, The Beginning of History: Value Struggles and Global
Capital, (London: Pluto Press, 2007); S.A. Hamed Hosseini, Alternative Globalizations: An Integrative Approach
to Studying Dissident Knowledge in the Global Justice Movement, (Abingdon: Routledge, 2010); Gurminder K.
Bhambra, Connected Sociologies, (London: Bloomsbury, 2014).
important need to critique and demonstrate the problems and limitations of liberal and
neoliberal approaches to global justice.
One contemporary and prominent approach to the question of global justice which attempts to
push back somewhat against neoliberal thought is a turn to thinking about global relations in a
more social liberal and social democratic vein. Drawing upon the intellectual heritage of
Aristotle, Immanuel Kant and John Rawls, as well as invoking the moral reframing of the
political economy of Adam Smith, a range of scholars argue for the importance of reestablishing and re-orientating global liberal order through human rights, enabling capabilities,
and via the global moral and political regulation of capitalism.13 While such approaches are
well-intentioned and hold a degree of merit, they also underemphasise a range of problems
inherent within capitalist accumulation and liberal political and legal organisation which render
the imagined project of any future global social liberal or social democratic order highly
untenable.
Too often social liberal and social democratic theoretical approaches to global justice
underplay the sheer amount of political violence (colonial, neo-colonial, anti-socialist and anticommunist) that brought the 20th century liberal order into being and secured and sustained
capitalist accumulation. Underemphasised also are the related forms of capitalist economic
exploitation, dependency and underdevelopment entrenched across the developing world
through the actions of Western states and multinational corporations that helped to make
13
See generally: Amartya Sen, The Idea of Justice, (London: Penguin, 2009); Amartya Sen, Development as
Freedom, (Oxford: Oxford University Press, 1999); Thomas Pogge, World Poverty and Human Rights, 2nd ed.
(Cambridge: Polity, 2008); Martha Nussbaum, Creating Capabilities: The Human Development Approach,
(Cambridge, MA: Harvard University Press, 2011); David Held, Global Covenant: The Social Democratic
Alternative to the Washington Consensus, (Cambridge Polity Press, 2004).
possible and fuel 20th century post-war economic prosperity, social liberalism and social
democracy in the West.
Even when such issues are acknowledged, what remains excluded from many social liberal and
social democratic approaches to the question of global justice is the drawing of connections
between the failure of a global liberal order to bring peace and economic prosperity to the world
and fundamental relations of violence, exploitation, and inequality that reside at the heart of
private property relations, capitalist accumulation, and liberal forms of political and legal
organisation. What is problematic in this sense is a key set of concepts and ideas found in a
very long tradition of Western political, economic and legal thought which classical and social
liberalism, and now neoliberalism, have inherited, reinterpreted and universalised as the basis
of global liberal order, international law and global justice. It is these ideas themselves which
are deeply problematic and offer little foundation for the realisation of any real, egalitarian idea
of global justice. Such theoretical and conceptual problems cannot be papered over, they need
to be dug out by the roots.
In this respect this book offers a contribution to thinking otherwise to liberal and neoliberal
thought. In what follows I draw upon aspects of conceptual history and genealogy, historical
sociology and critical theory, political and legal theory and philosophy, to examine some of the
key ideas that make up the conceptual architecture of the modern liberal global order and
modern international law. My approach looks back to the Mediterranean, Anglo-European and
now globalised intellectual traditions of natural law, natural rights and republican
constitutionalism. These stand as central foundations of modern political and legal thought and
have been inherited by, and actively shape, contemporary liberal and neoliberal conceptions of
global order and international law. I argue, however, that the traditions of natural law, natural
rights and republican constitutionalism are not reducible to their liberal and neoliberal
interpretations. Rather, I develop an alternative interpretation which views the natural law,
natural rights and republican constitutional traditions as intellectual expressions of normative,
ideological, class and political struggles over how to organise questions of social and
economic justice. Different strands of these traditions offer then conflicting normative
approaches to questions of social and property relations, equality and inequality, human
dignity, human rights, democracy, sovereignty, violence and the role of international law.
By developing an interpretation of the natural law and natural rights traditions I trace a set of
problems and tensions that reside at the foundations of modern political and legal thought.
Specifically these relate to the justification of private property out of the commons and against
communal ownership, the issue of accumulation through violence, and the challenge of
balancing the social utility of commerce with the moral regulation of economic activity. The
account starts in ancient Mediterranean world with Aristotle’s articulation of the defence of
private property and argument for the need to morally restrain the desire for wealth. I trace then
a set of related problems and tensions through Stoic philosophy and its appropriation within
the work of Cicero. I follow these tensions through the medieval idea of natural rights and the
work of William of Ockham, and into the early modern reinterpretation of this as a theory of
international law by Hugo Grotius, and as a theory of liberal international order as presented
by Immanuel Kant. Principally I argue that the natural law and natural rights traditions are
marked, broadly, by a tension between an ethic of human sociability and fellowship, and, a
theory of the utility of unsocial and self-interested private property and commercial relations.
The point of highlighting such a tension is to help us to think through how global liberal order,
contemporary human rights discourse, and many liberal and social liberal approaches to the
moral justification and regulation of global capitalism are still heavily structured and
influenced by Aristotelian, Stoic, Ciceronian, Grotian and Kantian ideas. Generally
contemporary liberal thought inherits an intellectual and conceptual apparatus which fails to
account for the non-consensual violence of property accumulation, and struggles to coherently
reconcile the ethical values of human fellowship with commercial relations of unequal private
property and commodity exchange which are portrayed as ‘necessary’ for the generation of
wealth across society. As seen through the natural law and natural rights traditions differing
responses to this tension fly off in a number of directions and subsequently echo through time
within contemporary approaches to global order and international law.
For example, the tenacity with which Cicero holds onto the importance of private property and
the violent expansion and defence of the Roman republic’s interests of security and territorial
accumulation expresses a belligerent theory of international law as empire. This set of ideas is
a world away from, and yet still not very far removed from aggressive theories of international
law which attempted to justify the 2003 invasion and occupation of Iraq by the USA and the
UK. In contrast, Grotius’ contradictory theory of international law is marked by an effort to
hold together the ethical significance of human sociability with the emerging global importance
of trade and commercial self-interest to wealth accumulation and state power. In Grotius’
approach moral principles are consistently drawn upon to ‘embed’ commercial relations, and
yet, in his account moral restraint is too often thrown overboard in cases of commercial
urgency, military necessity, colonial acquisition and mercantilist violence.
Further, as shown through a reading of Kant (somewhat against Kant), the tension plays out as
he thinks through the consequences of an idea of property rights grounded upon ‘consent’
placed in the context of property rights created and sustained through the violence of
colonialism. Kant’s thinking opens onto an idea, more reminiscent of Ockham and the radical
Stoics, which involves the potential renegotiation of the legitimacy of all property rights
through a ‘contract that extends to the entire human race’. This is a radical idea of an ‘original
position’, of radical social-contractarian thought, postcolonial international law, and global
justice in which all property rights must be considered as ‘provisional’ and ‘indeterminate’
until such time that all of humanity can give its consent. Such an argument is difficult to
reconcile with Kant’s liberal theory of progress and world peace grounded upon the unsocial
sociability of commercial self-interest.
In tracing the property question through the traditions of natural law and natural rights, what
becomes clear is that it has been incredibly difficult and almost impossible for a range of highly
influential scholars to convincingly reconcile the fundamental tension between a social ethic
of human fellowship, and the utility of unsocial private property and commercial relations. In
approaching this tension something consistently gives way. Either, the utility of self-interest
and violent accumulation is prioritised and a social ethic appears as merely the diazepam of
moral bad conscience. Or, the social ethic flies off in a morally radical direction towards
socialism and communism. Generally, in inheriting this tension modern global liberal order
and international law have rejected the latter and have affirmed and embraced the former.
In continuing to examine the tension between an ethic of human fellowship and the utility of
unsocial property and commercial relations I then go on to consider how a number of thinkers
within the natural law and natural rights traditions respond to what can be termed a paradox of
property. This involves the problem that ‘rights’ of private property and state sovereignty are
often historically founded upon the ‘wrongs’ of historical violence, dispossession, theft, and
seizure.14 For radical thinkers of natural law and natural rights such as Gerard Winstanley and
Jean-Jacques Rousseau, legal and political relations constituted by unequal private property
ownership perpetuate an ongoing wrong. Private property rights are built upon historical acts
of violent conquest, create and entrench the illegitimate condition of inequality, and are a
manifestation of an unlimited desire for the accumulation of wealth which itself is a cause of
violence, social conflict and war.
In contrast to this I argue that one incredibly influential contribution to the conceptual
architecture of liberal thought, global liberal order and international law is a set of innovative
natural law and natural rights arguments developed by John Locke and Adam Smith justifying
the transformation of historic and ongoing wrongs of unequal property accumulation into
‘right’. Locke and Smith turn the tables on private property’s fundamental wrong and transform
this into a right to accumulate, a right of industry against waste, the right to uphold and unleash
a natural law of the ‘free market’, and into an argument for the ‘justice’ of self-interest, material
inequality and wealth generation that denies and renounces economic equality. Smith’s work
is crucial for framing what comes to be liberal and then neoliberal approaches to global justice,
global order and international law. His use of historical sociology is well aware of the violent
historical origins of private property and the resultant inequalities of wealth and political power
that flow from this. Yet, the argument he develops rejects any ethical demand for a levelling
or egalitarian politics. For Smith unsocial self-interest, the unleashing of the productive power
of the division of labour and the ‘natural’ free-market, and the defence of cosmopolitan private
property rights and individual rights to economic autonomy and choice, all point to an ethical
See generally: Valerie Kerruish,“Imperatives of Extinguishment: Kartinyeri v the Commonwealth of Australia”,
Dillemmata: Jarbuch de ASFPG 3, (2008), 1-35; Valerie Kerruish, “But What’s It Got to Do with Law?”
Dillemmata: Jarbuch de ASFPG 4, (2009), 81-24.
14
goal which is that of improving the welfare of the population through stimulating economic
growth and raising the standard of living.
Smith’s ethical, utilitarian and biopolitical justification of capitalist economic relations as a
theory of global justice has been interpreted in differing ways by social liberalism and
neoliberalism. For the former Smith is viewed as presenting a restrained theory of capitalist
economic utility, which still requires forms of morally guided, prudential political intervention.
For the later Smith is interpreted as a prophet of a globalised order of egoism, in which selfinterest is the sole rational basis of social organisation, and selfishness is the core of an
unrestrained natural law of capitalism. Each of these views play a role in the construction of
liberal and neoliberal global order across the 20th and 21st centuries as does an idea expressed
by Smith, Kant, and David Hume, that cosmopolitan relations of unrestricted commerce and
trade bind peoples together through mutual interest in the desire for global peace.
However, what is too often overlooked by both social liberal and neoliberal understandings of
Smith is his importance as a key thinker of the ongoing violence of capitalist accumulation.
Smith draws upon a theory of security, an argument of reason of state, and a republican ethic
of ‘love of country’ to argue in favour of suspending free trade and engaging in protectionist
and violent mercantilist polices against Britain’s rivals. Drawing upon a historical sociology
which links the increasing cost of paying for warfare to economic prosperity and the servicing
of public debt, Smith develops an account of the ‘fiscal-military state’ and argues that the
preservation of the competitive, commercial state is dependent upon it being and remaining
wealthy, and therefore on socially mobilising the ‘pin factory’ to pay for the war factory. In
this sense Smith continually flips between advocating theories and strategies of mare liberum
and mare clausum. He flips between policies aimed at seeking peaceful and cooperative forms
of exchange between economic partners, and, policies that rely on both protectionist and violent
measures to secure property, markets and pacify exchange. In the latter, his position invokes a
liberal ethic and strategy which places the welfare of the nation-state over and above any
cosmopolitan duty to humanity.
This interpretation of Smith’s work helps to discredit some of the key assumptions of neoliberal
political economy and the myth that some form of unrestrained capitalist ‘free’ trade has and
will lead humanity to global prosperity and peace. In contrast, Smith’s work highlights, from
a theoretical perspective, how state protectionist and anti-cosmopolitan strategies of capitalist
accumulation reside at the very core of liberal thought and liberal political economy. Such an
understanding developed by Smith is important as it points to the continued return of the
repressed violence of private property relations which haunt the global liberal order and the
global capitalist economy. This violence threatens to break out at any moment through the
unsociability and divergence of interests between nationally-aligned capitalist class fractions
and the very quick turn from pacified trade relations into economically driven war. In an era
marked by a decline of US capitalist class and state supremacy over the world, the rise of
Chinese authoritarian capitalism, the emergence of a fragile transnational capitalist class
alignment that appears as a global neoliberal constitutional order, and, the potential violent
breakdown and dissolution of this order through the assertion of nationalist neoliberal and neofascist sentiments, the drawing upon Smith’s insights to better understand the fundamentally
violent nature of capitalist accumulation is as relevant and important as ever.
Following an account of the natural law and natural rights traditions I shift focus slightly to
offer an interpretation of the republican constitutional tradition and consider what might be at
stake when thinking ‘constitutionally’ about global order, international relations and
international law. Such a question is prompted, in part, by a contemporary liberal cosmopolitan
discourse of ‘global constitutionalism’.15 For many liberal cosmopolitans global
constitutionalism emerges as the necessary and logical development of the idea of Kantian
liberal internationalism in which international problems, unsolvable by states, are dealt with
through a variety of overlapping and fragmented international law and global governance
structures and networks of administrative agencies, soft law, lex mercatoria, judicial and
arbitration bodies, civil society organisations and multinational corporations. Such liberal
cosmopolitan global constitutionalism is seen as emerging via a process of reflexive
development and gains its ‘legitimacy’ through a cosmopolitan discourse of human rights and
‘transnational norms’.
Yet, many liberal cosmopolitan accounts of global constitutionalism are at best naïve and at
worst dangerous. They mobilise a constitutional language and a largely ambiguous discourse
of ‘rights’ and ‘norms’ to offer a veneer of false legitimacy to an emerging global neoliberal
constitutional order. This order institutionalises transnational capitalist class power and
neoliberal economic and political rationality and radicalises international law’s displacement
of democracy. Such a neoliberal order attempts to reorganise state sovereignty and legitimise
a process in which the rights of private property, multinational corporations, financial capital,
and the norms of privatisation, marketization and commodification, are juridically and
‘constitutionally’ entrenched against democratic attempts to order and regulate the economy.
15
For a variety of accounts, see generally: Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization
of International Law, (Oxford: Oxford University Press, 2009); Anthony F. Lang and Antje Weiner, Handbook
on Global Constitutionalism, (Cheltenham: Edward Elgar, 2017); Neil Walker, Intimations of Global Law,
(Cambridge: Cambridge University Press, 2014); Christine Schwöbel, Global Constitutionalism in International
Legal Perspective, (Leiden: Martinus Nijhoff, 2011).
By turning to a reading of the republican constitutional tradition I show how the conceptual
architecture of global liberal order, international law and neoliberal global constitutionalism
draws upon and rearticulates a long heritage of Roman, neo-Roman and liberal republican
constitutional thought. This inheritance has largely expressed a distrust and ‘hatred of
democracy’ and has supressed the idea of ‘constituent power’, or popular, participatory and
egalitarian democracy, in favour of constitutional orders which uphold the values of private
property, wealth inequality, and limited representative government. 16 In modernity, through a
juridical language of natural rights, human rights and ‘fundamental rights’ the liberal
constitutional tradition has attempted to place many of the basic elements of the capitalist
economy outside of the realm of legitimate democratic contestation, and increasingly in the
hands of judiciaries and networks of technocratic administration.
Importantly, many liberal cosmopolitan and neoliberal theories of global constitutionalism
fundamentally misunderstand and, or suppress, a key element of the republican constitutional
tradition. Hence, against liberal and neoliberal thought I develop an interpretation of the
republican constitutional tradition which emphasises the centrality of constitutional
antagonism. My argument is that at the core of republican political and legal thought resides a
critical appreciation and understanding of the centrality of normative, ideological, class and
political struggles over social and economic justice. Further, that for some thinkers who uphold
a radical, egalitarian and democratic republican idea an understanding of the role of social
and constitutional antagonism involves also the continued reassertion of the legitimate struggle
16
See generally: Antonio Negri, Insurgencies: Constituent Power and the Modern State, trans. Maurizia Boscagli,
(Minneapolis: University of Minnesota Press, 1999); Jacques Ranciere, Hatred of Democracy, trans. Steve
Corcoran, (London: Verso, 2006).
of a demos or people against the violence and indignity of inequality, alienation, and economic
exploitation.
Sketched in very broad outline I trace differing articulations of a perspective of constitutional
antagonism as developed across the work of Aristotle, Polybius, and Livy in the ancient
Mediterranean world, through to Machiavelli in early modern Italy, and through to the work of
G.W.F. Hegel, Karl Marx, Antonio Gramsci and Nicos Poulantzas. On this reading I draw
attention to how Aristotle offers a historically minded, materialist and sociological
understanding of class conflict within ancient Athens and the Mediterranean world. In this he
frames class struggles between the rich and poor, the few and the many, over issues of property,
debt, inequality and the structure of political participation and accountability, as articulating
very different perspectives over how to order political, economic and social relations in
accordance with an idea of ‘justice’. The early modern and modern inheritance of this idea by
Machiavelli, Hegel and Marx significantly intensifies an emphasis upon the antagonistic nature
of struggle, not only in relation to political conflict and in relation to ‘struggles for recognition’,
but also with regard to the construction and proliferation of normative concepts and discourses
across social, economic and legal relations.
In this vein, I argue that Marx’s inheritance of the republican tradition frames and informs his
critique of liberal political economy and his account of the antagonistic, violent, unstable,
socially exploitative and destructive nature of capitalist social and economic relations. An idea
of normative, class antagonism, as struggle, is thus central to Marx’s accounts of the historical
and ongoing violent process of the creation of private property rights through dispossession,
the unsociability of capitalist relations of production, commodification, market exchange and
finance, and, the securing of economic and political regimes through a mix of repressive state
violence, colonisation and via the consent-inducing ideology of liberal rights and freedoms. In
response then to the social reproduction of alienation, commodification, exploitation, economic
coercion and impoverishment of wage labour under the emergence of a slowly globalising
capitalist economy, Marx invokes and recalibrates a radical, egalitarian and democratic
republican idea. This is an idea of a just society forged through revolutionary struggle and
social transformation, a society of human dignity, equality, freedom and lack of want. For
Marx, this is the reconstitution of humanity via the creation and realisation of a ‘republic of
labour’.
Through an interpretation of the republican tradition of legal and political thought that
emphasises constitutional antagonism we can better understand global order and international
law as marked by ‘constitutional’ conflicts and struggles over the nature and scope of what
counts properly as social and economic justice. Both global order and international law can be
understood as a normative field of disagreement, dispute, contestation and struggle in which
rival juridical and political actors, groups, classes, class fractions, and social movements
attempt to articulate and realise very different ideas of social and economic justice in relation
to questions of equality, democracy, social and property relations, debt, labour, human dignity,
human rights, liberty, reproduction and ecology. Such a perspective thinks of normative and
class conflict taking place transnationally and in this respect moves beyond the limited
perspectives of classical realist and neorealist international relations theory, and beyond the
adoption of this by forms of international legal theory which reduce violence and conflict to
interstate political dispute and the use of legal argumentation as ‘politics by other means’. A
perspective of constitutional antagonism also denaturalises many of the key assumptions of
liberal and neoliberal international legal thought, historicising questions of rights, legal form,
economic governance, violence and institution building and drawing to the foreground a long
history of struggles for recognition and revolutionary social transformation that shape and
underpin the ordering of social reproduction.
Over the course of the 20th and early 21st centuries global constitutional struggle has led to the
creation of a global liberal order and the emergence of a fragile neoliberal global constitutional
order. Crucially, global constitutional struggle has involved also the displacement and
suppression of multiple attempts to realise, often in very different ways, a radical egalitarian
and popular democratic republican constitutional idea. Yet this radical demand has not gone
away and is still expressed through a plurality of local, national and transnational political and
social movements, many of which attempt to resist and overturn neoliberal globalisation and
demand the realisation of some idea of global justice. Emerging alongside these is a demand
for the future realisation of an egalitarian and democratic global constitutional order. This is
an idea which, in part, draws upon the radical heritage of all unrealised, failed and halfcompleted struggles for social liberation, for equality, for democracy, for human dignity.
Further, this is an idea which is both not yet and incredibly problematic,17 but one which
becomes ever more important as our world strains under the weight of increasing levels of
human suffering, inequality and social and ecological devastation.
While the realisation of a radical, global constitutionalist idea seems quite distant, the concept
remains relevant for reframing international legal thought. Holding onto a global constitutional
register helps us to think about and invoke the very public role of international law and to do
so as a means of pushing back against the forms of ideological and cultural dementia created
and entrenched by the neoliberal colonisation of global legal relations. A key aspect then of the
17
Thought of in the senses given by Bloch and Derrida respectively. See: Bloch, Natural Law and Human Dignity,
Derrida, Specters of Marx.
public role of international law is to counter this dementia by reclaiming an idea of legal
relations and legal scholarship which frames questions of economic governance, privatisation,
and market, corporate and financial operation as global constitutional questions of public and
common concern. Such is the radical heritage of the natural law, natural rights and republican
constitutional traditions that questions of property, wealth and capital accumulation are not to
be seen as merely matters of private responsibility, or as elitist, managerial or technical matters
of governance, but as very public matters to be debated, critiqued and called to account.
In what follows I situate prevailing modes of contemporary liberal and neoliberal thought
within a wider context of some of the key intellectual lineages of the ‘Western’ political and
legal tradition. I do this not to privilege a Western tradition against other intellectual
traditions,18 but merely to offer a line of critique and an alternative way to think about a set of
concepts and values which continue to dominate much of the present. My approach also draws
attention to the more radical aspects of Western political and legal thought which have been
often too quickly pushed to the side, suppressed, ignored and forgotten. In this respect my
approach repositions central questions of international law within a broad idea of what counts
as critical scholarship. Such a view asks that we engage in the critique of international law by
18
My account of the natural law, natural rights and republican constitutional traditions turns to scholarship within
the Ancient Greek and Roman worlds as a means of highlighting how often overlooked debates around property,
inequality and economic justice are central to understanding and critiquing the modern inheritance of these lines
of thought as they influence and structure key aspects of (now globalised and dominant) modern liberal and
neoliberal political, economic and juridical thought. To engage in such an approach is not to fetishise Ancient
Mediterranean thought, but to engage in its critique and to connect this to a critique of the dominant modes of
thinking and intellectual scholarship which continue to govern and order the present. In doing this it should be
noted also the important body of scholarship which critiques the attempts of modern Anglo-European thought to
connect itself to a legacy of Ancient Greek philosophy, culture and politics, denying the Mediterranean,
Mesopotamian, Asian and African influences upon the Greek world, and doing so as an attempt to lend legitimacy
to racist, imperial and neo-colonial projects justified through a concept of ‘civilisation’. See generally: Martin
Bernal, Black Athena: The Afroasiatic Roots of Classical Civilization: Volume 1, The Fabrication of Ancient
Greece 1785-1985, (London: Vintage, 1987); Edward Said, Orientalism, (New York: Pantheon Books, 1978).
drawing upon various approaches from law and history, law and humanities, law and critical
theory, law and social theory, and law and political economy.19
To begin, in the following chapter I preface my readings of the natural law, natural rights and
republican traditions with an account that draws upon contemporary critical international legal
theory, critical international relations theory, and historical sociology to paint a picture of the
emergence of the global liberal legal order through the 20th and early 21st centuries. I argue that
liberal attempts to construct a global order and a ‘zone of liberal peace’ have failed to bring
peace and prosperity to the bulk of the world’s population. To understand this ‘failure’ we need
to turn away from the moral and pragmatic registers of liberal legal humanitarianism and ‘just
war’ and towards a broader, critical appreciation of international law’s relationship with
political economy and the operation of the multiple forms of power and violence that underpin
global capital accumulation.
I argue that the contemporary situation of liberal order and international law has emerged in
tandem with an uneven and often violent process of liberal, neoliberal, undemocratic and
authoritarian capitalist development. In this respect, the current shape of global order and
international law represents a specific historical, political and juridical set of attempts to
organise and arrange economic and social relations in a very particular direction. In recent
times this has involved also the reversal of the social liberal and social democratic regulation
of capital in the Global North, and the predominant absence of social liberal and social
democratic regulation of capital in the Global South. As such it is important to recognise and
In sketching the ‘foundations’ of liberal order and international law, it should be noted that I am not aiming to
present a complete overview or comprehensive account. Beyond the scope of my account are important
foundational questions related to gender, race, culture, and ecology, which I have only touched upon somewhat
briefly. These remain however, as questions and as approaches within critical theory, important to understanding
the formation of modern liberal politics and international law. Further, my account only briefly engages with the
heritage of European Absolutist states and their impact upon modern state sovereignty, and late 19th and early 20th
century approaches to liberal order and international law. In each of these cases there are a variety of other studies
which have covered the ground in a comprehensive manner. As such I have focussed my account on a number of
‘foundational’ aspects of liberal order and international law which have been underexplored or overlooked.
19
understand that our global political and juridical architecture has been built and maintained
through struggle and violence. One key consequence of this is that contemporary global order
and international law represent a reign of injustice and inequality for the bulk of the world’s
population. Liberal order and international law represent for many across the globe something
to struggle against and to transform for the sake of a life and world which could and should be
better.
Tarik Kochi