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Despite ideological use of terms like “free market,” people are not free to leave capitalism: capitalism is socially compulsory. Ideologists of capitalism sometimes mask this reality by trying to render capitalism the entirety of our conceptual horizon, so that it becomes impossible to think outside of capitalism. When that happens, capitalism comes to be taken for granted rather than treated as a historically contingent and socially-imposed set of constraints. One of the things that history can do is to examine when capitalism arose and how it became compulsory. Rose Parfitt’s new book is precisely this kind of critical history.

This book centers on Italy’s invasion of Ethiopia in 1935 and the ways it has been understood in international law since the end of World War Two. The invasion has been typically treated as a failure of law, as Parfitt demonstrates in a survey of scholarship by historians and international law scholars. The League of Nations let the invasion happen, the typical account goes, and the League’s failure to act must inform the creation and practice of better international legal institutions. Parfitt argues, however, that the legal facilitation of Italy’s annexation of Ethiopia did not arise from particular qualities of the League but from elements of international law more broadly. The force of the argument is that present international law is not so fundamentally different from the League of Nations after all. As Parfitt underlines, the world has witnessed many invasions since the Ethiopian crisis, under what is ostensibly a very different organization of international law and set of institutions. The typical narrative of Italy’s invasion, Parfitt argues, has defended rather than prevented military actions, especially by the US and European countries against formerly colonized countries. Parfitt thus argues that there is far more continuity between the League of Nations era and more recent international law than the typical story admits. She further argues that claims to strong differences between the League and present institutions end up inadvertently offering rhetorical support to war.

Parfitt repeatedly returns to the Italian invasion. With each return she takes a different interpretive perspective, using the metaphor of an artist’s shadow box, which is designed to facilitate looking at objects from angles. In doing so, the book travels far and moves artfully between different degrees of analytical abstraction. Parfitt critiques other scholars conceptually, provides an intellectual and doctrinal history of international law, narrates the Italian invasion, and offers extensive theorizing of the relationship between law and capitalism. It’s a though-provoking, exciting book. In this review, I focus on the book’s theoretical aspects, which are ambitious and offer a great deal to legal scholars. Parfitt foregrounds these theoretical aspects herself as part of the book’s scholarly contribution. In the next few paragraphs I attempt to summarize the contents of her argument that international law helped make capitalism compulsory.

International law in effect has required people around the world to adopt the state as a specific form of social organization, Parfitt argues, and in doing so helped impose capitalism. We find in the history of the world a wide range of ways for human collectivities – societies and communities and, perhaps, polities – to organize themselves. The state is just one of those forms of organization. We live today in a world where states are more or less omnipresent and they have to a massive degree crowded out or at least incorporated or subordinated other forms of collectivity. That’s a relatively historically recent condition and one tied closely to capitalism.

International law is the law of states’ behavior in relation to one another. It regulates what states can and can not, or should and should not do to one another. This implies, Partfitt underscores, a relationship between states and non-state entities, including both non-state collectivities and individual persons. International law sets some limits on what states can do to people, but the many victims ground under the boots of states past and present suggest that those limits are not especially effective. States seem to victimize non-state entities with relative impunity. This means among other things that the stakes of achieving statehood are relatively high, as being recognized as a state provides some limited ability to hold other states at bay. Achieving statehood, though, requires the permission of existing states. That is, Parfitt argues, statehood is always conditionally granted by other states.

Parfitt’s argument implies a question of social ontology: if a human collectivity declares itself a state and no other states agree, is that collectivity really a state? Whatever the theoretical answers may be, Parfitt shows that in practice the incontrovertible fact is that such a collectivity will remain in the world only so long as existing states decide to allow it to do so. The evidence of the historical record suggests that such a collectivity should be worried about its future, as it will likely be brutally steamrolled soon by one or another state and made into a part of that’s state’s territory.

That said, Parfitt stresses that the process of deciding if a human collectivity is or is not a state is not random, nor is it just power politics. There is something of a logic to the process. Now, that logic is in a sense twisted, tilted in favor of some actors (i.e. existing states and especially European ones tied to the history of colonialism), as Parfitt powerfully demonstrates through the examination of the Italian annexation of Ethiopia.

A key criterion of determining whether some collectivity counts as a state is if that collectivity has a government. Parfitt traces the emergence of that category within the history of international law. She argues that having a good government is defined largely as a state that protects property, and specifically capitalist forms of property. This applies domestically: does a collectivity protect the property of the people that it claims are its people, in a way that is legible to other states? This also applies internationally: does a collectivity protect the property of other states’ citizens, and does it do so in a way that other states view as valid? If not, it is less likely to be accepted as a state and more likely to be annexed by a state. To put it simply, this part of Parfitt’s argument entails that being a state requires the permission of already existing states, and not being a state leaves people vulnerable to predation by states. This account helps explain why in relatively recent history more and more of the world has come to be organized under states rather than other kinds of institutions: existing states have annexed more territory, and people seeking to avoid annexation have attempted to organize themselves as states. Often people have found their claims to statehood denied by pre-existing states, or in some cases statehood has been granted and then later revoked.

Parfitt in effect argues that international law has several traps built into it. One of these traps is that statehood is compulsory. Only a state, not any other kind of collectivity, can count as sovereign. Another depends on race. Historically, Parfitt argues, European states have questioned the sovereignty of other states through ideologies of racial superiority and inferiority. A third trap is the requirement to protect specific forms of property associated with capitalism. Making the state compulsory helped make capitalism compulsory because states have become unrecognizable as states under international law unless they guarantee capitalism’s existence within their territories. Taken together, the book suggests, this explains a great deal of the ugly history of international law: European states have set hurdles in the way of other people’s sovereignty in ways that facilitates European annexation. Non-European people have often been treated as presumptively incapable of protecting property, and so as not able to have states. Parfitt treats Ethiopia’s treatment by Italy and the League of Nations as a case study of these patterns. She argues as well that if understood in this light, the Italian invasion was not exceptional but exemplary of problems in international law. I found this very convincing.
Parfitt’s argument is complex and multi-faceted, and in making it she capably summarizes a wide array of Marxist theorists of law. Her literature review of Marxist legal theory alone makes the book worth reading for legal scholars in a wide range of fields in addition to international law. I appreciated Parfitt noting the original contingency of the state and the possibility of alternative human collectivities. I enjoyed that point and also struggled with it: I came away Parfitt’s book realizing that my imagination has a limited capacity to envision non-state forms of social being. It’s a worthy challenge and one I’m glad Parfitt’s book pressed me to think about.

The Process of International Legal Reproduction offers a great deal that scholars could build on in further research, above all the book’s theoretical framework. Since this book is so suggestive, and since I hope the book signals a renaissance of Marxist legal scholarship, I want to spend some time sketching out ways that scholars might engage further with Parfitt’s book.

Within the Ethiopian crisis, Parfitt depicts the operation of two processes. One is a very macro-level process of capitalism reinforcing itself, and the other is a more specific process of international law playing a specific role in capitalism. Other works on the history of international law could be written that borrow Parfitt’s framework to investigate how the process of international legal reproduction played out in other incidents in history, and how those events related to capitalism’s self-reproduction. Scholars could investigate as well how international and domestic law inter-relate. For example, labor and employment law scholar Ruben Garcia has written optimistically, in his book Marginal Workers, about the potential for international law to help improve the legal situation of workers in the United States. Parfitt’s book implies a critical perspective on these efforts as being another facet of the international process of legal reproduction – a more humane one than some others, but still fundamentally bound up with lasting injustice.

Future scholars could also examine domestic law directly and its role in the reproduction of capitalism and the violence thereof. I attempted to do so in my own recent book, Injury Impoverished. (Had I read The Process of International Legal Reproduction two years prior it would have shaped my book significantly.) Christopher Tomlins has written multiple books analyzing the relationships between law, capitalism, class, ideology, and violence. Afield from history, Marxist philosopher Tony Smith has written in his Beyond Liberal Egalitarianism that the state serves as a key part of the reproduction of capitalism by treating power relationships in society as apolitical and centering political contestation on a very narrow swathe of social life. The Process of International Legal Reproduction could be used to enrich or interrogate those works, by drawing out further how domestic legal processes are articulated to international law and the world market, in addition to her powerful elucidation of the role of law within capitalism’s reproduction.

Parfitt’s book raises questions about the origins of capitalism as well, an area in which there was once much scholarship and which has been relatively neglected in recent years. Parfitt depicts capitalism as a set of self-reinforcing processes, and international law is a key part of that self-reinforcement as Parfitt argues, I think correctly. This prompts the question of when these social processes began, and what came first? Did international law help create capitalism, and then become subordinated to it – law as a kind of Dr. Frankenstein creating then losing control of the monster of capitalism? Or did capitalism arise relatively independently of international law and then take over the international legal system? Both sound plausible and compatible with Parfitt’s arguments, and I am sure her book would aid researchers arguing either point. The answers would have important implications for the degree to which scholars should understand the law as relatively autonomous within capitalism or as relatively determined to act in specific ways by capitalism. All in all, this is a powerful and thought-provoking book, highly recommended to any legal scholars concerned with international law, human rights, colonialism, social justice, and capitalism.

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Cite as: Nate Holdren, A Critical History of the Complicity of International Law, JOTWELL (August 6, 2020) (reviewing Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (2019)),