violence

 One of the difficulties in speaking of violence is its position: from, to.

China M's text indicates the inseparability of force and the use of law. The very fabrication of equal rights sets up forces that then must decide by force. Benjamin seems to suggest in his essay that you cannot separate violence from law because violence is either preserving or breaking and therefore necessary making, law. He suggests that only violence can decide if its use was justifiable. (again, the term USE might not be the right term here).

I feel like I understand what is meant by only violence can decide its violence but it also seems an impossible situation. This also seems to link to our discussion of the incommensurability of bearing/being witness.

What is it about violence that makes language itself questionable? In many ways, the oddness that we speak of the absence of violence as non-violent which hints to an indeterminate state. Or am I confused?

Questions....

Mieville makes a compelling case for thinking about international law and its relationship to imperialism when making the point that “capitalism is juridical capitalism” (260).   There are a lot of arguments happening in this text with histories (political theory versus international relations theory, for example) that I’m not well versed, which makes it difficult to find a solid entry point into this conversation beyond mere summary.

However, many things stood out for me as questions rather than as responses per se.  The statement that “without violence there could be no legal form and without imperialism there could be no international law” (293) is an assertion that I agreed with as I was reading the text, but am trying to get some critical distance to understand the implications more deeply.  He doesn’t mention Weber’s well known definition of the state: “an entity which successfully claims a monopoly on the legitimate use of violence” (or I’ve read elsewhere interpreted as “legitimate use of physical force in a given territory”).  Given this definition, is Mieville interested in redefining the state?  It seems like this widely accepted definition of the state accepts that violence is inherent to it.  He does seem to gesture toward Weber on page 286 in this citation: ‘International law comprehends as actors only continuing monopolies of force’, but he quickly leaves that and goes on to criticize the interpretation of force, like in the Gulf War in the 1990s.  Is he arguing for a dismantling of the state? 

His argument from there seems to suggest that the state and the law mutually constitute one another and actually anticipate international law.   I guess I’m getting lost in the logic being employed as he separates the state from international law at certain points in the argument when talking about “imperialism as a structuring process of the modern international system” (291) in his discussion from pages 291-293.  It's like he thinks the state is structurally important to his argument, but he doesn't critique the state due to his focus on international law...but there is no international law without the state.  So, I'm just trying to get my head around what the implications are for the state in this argument.  In equating the law with capitalism, does he think that communist states would abolish the need for law?  Because then you are still left with the state issue, right?

Another basic question I have is: how is Mieville’s investment in a Marxist approach to international law rooted in class struggle in tension with a postmodern approach, which would seek to breakdown the framework?  His argument about civilization is provoking this question:  “It would be a postmodern commonplace to claim that civilization (or anything else) is defined by its ‘other’, in this case the ‘uncivilised’.  However, in this instance the crucial antithesis of ‘civilised’ was semi-civilised—those states which were neither beyond the purview of law, nor sovereign, but ‘quasi-sovereign’” (247-248).  He concludes that section by stating that “because ‘civilisation’ is not a discursive strategy for ‘othering’, but a result of the paradoxes of actually-existing sovereignty (248).  I understand that he is rooting this in a historical and specific moment and thus, he is suggesting that its specificity means that it isn’t discursive, right?  But it seems to me that the need for interpretation in some ways implicates its discursivity….?  I was left puzzling over what the advantages of a postmodern approach might be in this discussion.

Finally, this is totally random, but all I could think of at certain points when thinking about how "the law is constituted by relations of violence" (286) was how these questions relate to the issues that Judith Butler raises in "Burning Acts".

the law

I'm not very familiar with law or writing about law, so I'm just going to share some of bits I got from this piece, in no necessarily coherent order.

Clarifying questions:
1) I'm sure we were going to do this anyway, but could we talk about Benjamin's "Critique of Violence" and exactly what his argument is laying out for us? I think I'm getting the gist but sometimes he loses me. Important connections to Mieville that I see include natural/positive law and policing.

2) Page 136-7: could we possibly go over how China Mieville's Between Equal Rights connects law, violence  sovereignty, and self-help in this section? Not quite sure I'm getting it. What does "self-help" mean?

Some important quotes from that area are: "To understand, as Pashukanis clearly does, that robbery (non-consensual possession of another's commodity) goes hand-in-hand with trade (consensual trade of commodities), is to understand that violence is implicit in the commodity, and therefore legal, form." (134)
"Law and violence are inextricably linked as regulators of sovereign claims." (135)

Other questions:
3) In the quotes above and especially in talking about McDougal, Mieville makes the important observation that "Interpretation is not something we do to understand the law, it is the process that is law" (39). He also says that "Having dispensed with formalism, law must be part of the political process. This means that law itself is a political process, and the 'meanings' and applications of legal norms cannot be pre-determined. They are constituted in interpretation, contextually" (41). This makes a lot of sense to me and also brings up questions of translation--ultimately I think one of Mieville's main points is that law is translated into all these possibilities, both positive and negative, but because it is based on violence and capital/commodification, law is "fundamentally unreformable" (3)*. The end of law would mean global emancipation (318). But how do we imagine this end of law, and wouldn't there always be a problem of translation?

4) Random but related to what we've been talking about.... an excerpt from Naoki Sakai's "Modernity and Its Critique: The Problem of Universalism and Particularism":

the West is never content with what it is recognized as by its others; it is always urged to approach others in order to ceaselessly transform its self-image; it continually seeks itself in the midst of interaction with the Other; it would never be satisfied with being recognized but would wish to recognize others; it would rather be a supplier of recognition than a receiver thereof. In short, the West must represent the moment of the universal under which particulars are subsumed. Indeed, the West is particular in itself, but it also constitutes the universal point of reference in relation to which others recognize themselves as particularities. And, in this regard, the West thinks itself to be ubiquitous. (95)

particularism and universalism do not form an antimony but mutually reinforce each other. As a matter of fact, particularism has never been a truly disturbing enemy of universalism or vice versa. Precisely because both are closed off to the individual who can never be transformed into the subject or what infinitely transcends the universal, neither universalism nor particularism is able to come across the Other; otherness is always reduced to the Other, and thus repressed, excluded, and eliminated in them both. And after all, what we normally call universalism is a particularism thinking itself as universalism, and it is worthwhile doubting whether universalism could ever exist otherwise. (98)

I thought this could be a point in thinking about genocides and the Holocaust--if we say that the Holocaust cannot be compared, we are making it particular (or are we making it universal, as the thing every other genocide is compared to?), and this just gets us into the problem of never getting us out of this universalism/particularism loop. Just a side note..... I feel there's more to say about this but can't think right now.


*important quotes i want to point out but don't have time to contextualize:
"disputation and contestation is intrinsic to the commodity, in the fact that its private ownership implies the exclusion of others. Similarly, violence--coercion--is at the heart of the commodity form, and thus the contract. For a commodity meaningfully to be 'mine-not-yours'--which is, after all, central to the fact that it is a commodity to be exchanged--some forceful capabilites are implied. If there were nothing to defend its 'mine-ness', there would be nothing to stop it becoming 'yours', and then it would no longer be a commodity, as I would not be exchanging it. Coercion is implicit." (126)
International law "is the dialectical result of the very process of conflictual, expanding inter-polity interaction in an age of early state forms and mercantile colonialism. [. . .] International law embodies the violence of colonialism and the abstraction of commodity exchange. It is . . . that international law is colonialism" (169)
"Colonialism is in the very form, the structure of international law itself, predicated on global trade between inherently unequal polities, with unequal coercive violence implied in the very commodity form. This unequal coercion is what forces particular content into the legal form." (178)
sovereignty is a "theory of independence, not equality" (185)

"The chaotic and bloody world around us is the rule of law"

In his “Critique of Violence” Benajamin declares that “Lawmaking is power making, and , to that extent, an immediate manifestation of violence. Justice is the principle of all divine end making, power the principle of all mythical lawmaking” (295). Similarly, in his conclusion of Between Equal Rights: A Marxist Theory of International Law, Mieville states:

 “There is also a more profound sense in which radical change, or even the systematic amelioration of social and international problems, cannot come through law. As Pashukanis’s form-analysis shows, the system that throws these problems up is the juridical system that underpins the law. Law is a relation between subjects abstracted of social context, facing each other in a relationship predicated on private property, dependent on coercion. Internationally, law’s ‘violence of abstraction’ is the violence of war. To fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law– which means the fundamental reformulation of the political-economic system of which they are expressions. The project to achieve this is the best hope for global emancipation, and it would mean the end of law” (318).

“The attempt to replace war and inequality with law is not merely utopian– it is precisely self-defeating. A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law” (319).

Both works struck me as extremely pessimistic in terms of their conception of lawmaking, and international law, and made me feel hopelessly lost in a dead end. Similar to what Stephanie mentioned in her post, I wonder what alternatives are available after this recognition. Is international law, or law itself worth reforming, if possible? Are there any benefits to international law, or even to human rights? At this point, it just seems as though any enforcement of domestic or international law will always benefit the state in power...I don't know where to go from here, hope we can discuss this further in class.

Questions about the validity of human rights and international law

Mieville entirely disapproves of the notion of international law and humanitarian intervention. They were bred out of colonialism, he argues, and therefore reinforce the old hierarchies of power and domination, and allow the first world capitalist powers--like the USA--to continue their exploitation of third world nations. He asserts that "imperialism is not something that international law can successfully oppose, whatever its apparent anticolonial content--it is embedded in the very structures of which international law is an expression and a moment" (270). Progressive change cannot truly be accomplished through international law, then, because it is, in terms of its basic structure, exploitative and imperialistic. He explains that "[i]nternational law's constituent forms are constituent forms of global capitalism, and therefore imperialism" (290). Even human rights, he claims, "tacitly tak[e] bourgeois capitalism for granted," "updat[e] the notion of the civilising mission of the West," and "implies that human rights problems are intrinsically foreign, and that there are no abuses at home" (303).

I think he's absolutely right, but it does leave me wondering what the solution is. Should we do away with international law? Is it something that can be reformed or changed so that it is no longer so unequal and imperialistic? Is there any way in which human rights laws can become more equal? Reading Mieville, you would think the answer was no. I just don't understand what can be done about all of this--and it's something I've been thinking about since this class began.

International law is colonialism

The initial chapters of the book build the links between International law and capitalism; International law and war (coercion, occupation, territorial agenda, setting up of nation-states); so it is not too suprising when we are told that:

"International law embodies the violence of colonialism and the abstraction of commodity exchange. It is not that the contribution of non-Western polities to international law has been obscured by colonialism, nor that (Western) international law's spread across the world is the result of colonialism: it is that internationalism is colonialism" (169).

I need to think on this some more but wanted to write this down before I forget this point as I read on - there's so much to discuss on this emphasis here. I have a few thoughts and questions but the ones puzzling me right now are these so I'll write them down. Forgive me if I change my mind about my own questions as I read on.

Some questions:

1) Under what circumstances/when/(any examples) is International law capable of good or is it ineffectual ultimately?

2) How is the exchange of commodities in a capitalist market different from the bartering of pre-capitalist structures? If we keep in mind what the values of exchange, property are. I am not too certain how to tell the two apart, other than the medium being money.

Interesting Talk on Tuesday (Jan 29)

I'm planning to attend this and thought others might be interested too (history job talk):

Widows and the Politics of Mourning: Methods for Writing Histories of Violence

 

Monica Muñoz Martinez

Tuesday, January 29th, 2013

2:00 PM

Humanities 1, 520

Martinez examines the massacre of fifteen ethnic Mexican men in the rural farming community of Porvenir, Texas in 1918. This research shows how surviving widows transcended traditional gender roles to reclaim political and social rights by seeking the aid of local lawyers and Mexican consulates to file claims against the assailants in both domestic and international courts. Martinez outlines these efforts while also exposing the limits of judicial apparatuses for reckoning with systemic state sanctioned violence in this period. Using both archival and ethnographic research methods, this presentation traces the cross-generational effort of survivors to cope with these memories throughout the twentieth century. It engages how these violent histories impacted and mobilized later generations to document their family histories. Martinez argues that due to a public amnesia regarding the history of anti-Mexican violence in the early twentieth century, local residents in Texas, and women in particular, have borne the burden of sustaining alternative histories and demanding a public reckoning with legacies of racialized and gendered forms of terror on the U.S.-Mexico border.

Monica Muñoz Martinez is the Carlos E. Castañeda Postdoctoral Fellow at the Center for Mexican American Studies at the University of Texas, Austin. She received her PhD in American Studies at Yale University where she focused on Latino/a history, women and gender history, ethnic studies, and the public humanities. While at Yale she co-founded the Public Humanities Initiative in American Studies. Her work to institutionalize this initiative came from an investment as a Latina historian in bridging divides between academic and public centers of knowledge. As a current postdoctoral fellow, Martinez is developing a book manuscript based on her dissertation, “‘Inherited Loss’: Tejanas and Tejanos Contesting State Violence and Revising Public Memory, 1910-Present,” which examines how state-sanctioned racial violence in the early twentieth century continues to influence social relations in southwest Texas.

Negated women's experience and prostitution as synechdoche of the commodity

I was really interested in the way that certain sections of the Magna Carta were ignored or omitted during the sixteenth century. In particular, I was interested in the disregard for the rights of women. Linebaugh mentions that “as Adrienne Rich has written, women’s experience has been “wordless or negated experience” (57). He discusses that:

The expulsion from the common lands had huge and manifold consequences to the silencing and negation of subsequent experience. The “many sisters” who were put from their living and left at large suffered a double loss – of subsistence and of independence. It prepared the way for the terrorizing of the female body through the witch hunts. Burning faggots replaced estovers of common; the witch-hunter’s prick and the branks (a headpiece used for scolding women) silenced and degraded her)” (57).

Later, he describes the way women’s exclusion and degradation becomes associated with the meaning of the commodity:

“Thomas Deckker has a chapter on “the manner of undoing gentlemen by taking up commodities.” Robert Greene describes the persons who perform their “cozening commodity.” The husband who sells his wife into prostitution calls her a “commodity.” The prostitute is called “traffic.” The commodity retains sexual meaning at least in slang well into the eighteenth century, when its meaning expanded to become “the private parts of a modest woman and the public part of the prostitute.

“The devaluation of woman’s work and the degradation of her body relate directly to the enclosures of open fields, the loss of commons, and the depopulation of villages. Prostitution becomes the synechdoche for commodity production. She is a proletarian (she has “no external thing to lose”). She becomes prostituted and cheated simultaneously by the commodity” (65).

“The chronic poverty and the devaluation and extension of women;s work became widespread and invisible. In the economic changes of the sixteenth century women suffered the most, they lost the commons; and in the legal changes of the sixteenth century, their “reasonable estovers of common” was forgotten. What Shakespeare expresses is a third meaning of commodity: the anterior alienation and dehumanization of women’s body” (65).

Linebaugh makes a great observation and I think this relationship deserves further attention. Perhaps we can discuss this section further during class. I wonder if this has any relation to the present devaluation of women’s work in general, and not only prostitution.

I also apologize for having such an informal post. I wasn’t sure what questions to ask as I read the book, but this passage definitely caught my attention as I am really interested in women devaluation of women’s work overtime.

The Commons

Reading about the Magna Carta in Peter Linebaugh's The Magna Carta Manifesto this week and especially the idea of the commons brings me back to the UN Convention on genocide to consider--what else is missing?
I think we briefly mentioned this last class but one thing missing from genocide and the destruction of a group of people is dispossession. There is nothing in the UN Convention on genocide about (re)moving people from one place to another and the trauma of being cut off from the land and the people. Dispossession goes back to the commons. Without the commons and the very earth that gives sustenance and subsistence, there can be no people. I might be using commons as a noun and not a verb here, but dispossession also involves the loss of "sharing, agency, and equality" (Linebaugh 279), since after all, "the commons is an activity and, if anything, it expresses relationships in society that are inseparable from relations to nature" (Linebaugh 279). What could be more expressive of the relationship between people and earth sustaining each other?

Linebaugh points out that the Magna Carta has been used extensively, and often for purposes that contradict the text when looking at it as a whole, or for purposes that just need an old law to back it up so we can say that it hails from tradition. But tradition, Linebaugh says, brings it back to the commons and the relationship between land, people, and their protection from greedy and domineering kings who would take away sustenance and livelihood. The Magna Carta gives back and protects the peoples right to, in essence, life, or as Linebaugh details, first economic, then political and legal rights. Bringing us back to the Magna Carta would let us reinterpret its use and evaluate its value and application today.

This leads me to some thoughts on access to a sort of commons we have today. I know that California is a bit different but in Hawai'i you are supposed to be allowed access to the beach for sustenance. Writing about this, poet Juliana Spahr says:

Public Access Shoreline Hawai'i vs. Hawai'i Country Planning Commission, 1995 WL 515898 protects indigenous Hawaiians' traditional and customary rights of access to gather plants, harvest trees, and take game. In this decision the court said about the balance between the rights of private landowners and the rights of persons exercising traditional Hawaiian culture that "the western concept of exclusivity is not universally applicable in Hawai'i" (Spahr 116)

Even if you aren't staying at the hotel, legally, all beaches in Hawai'i are public property. Supposedly, the state owns the beach up to the high water mark. However, what this means in terms of access is open to debate. [. . .] The confusion benefits property owners. (98-9)

This website explains the whole thing better than I can, but in essence, beaches are supposed to be publicly accessible. More important than recreation, it links back to a sort of commons to the beach and the ocean, a "sea of islands" (Hau'ofa) rather than suntanning.

Hawai'i's Public Trust Doctrine can be found here and California's Public Trust Doctrine can be found here (I don't expect anyone to read it, just putting links for references and just in case).

Last questions:
What, then, are the commons? Linebaugh lists several on p.239-240. Are there different types of commons for different folks? Internet commons or land commons?
If common rights are the things Linebaugh lists on p.45, how is this different from human rights? Should they be different, and why are they different? Are human rights, for example, more individual and should we perhaps think of human rights as more collective?

Thoughts on Linebaugh and Harvey

Linebaugh argues that enclosures in England paved the way for capitalism. They were “not the only force in the creation of the land market but they destroyed the spiritual claim on the soil and prepared for the proletarianization of the common people” (51). Forcing the indigenous people of England to leave their ancestral lands led to their move to urban areas, alienation from labor, and commodification, all of which was necessary before capitalism could occur. It also, he says, paved the way for slavery. Arguably, it is a form of internal colonization in England by the aristocracy--indigenous peoples were stripped of their lands, just as the British empire would--not very much later--strip others of theirs. So I cannot help but wonder: what is the connection between the enclosure movement, between the loss of the commons, and imperialism? The loss of the commons displaced a great many people in England, many of whom must have been eager to acquire lands of their own. It does not seem like much of a stretch to argue that this must have been at least a factor in the emigration of various commoners from England to America. They suffered the loss of their lands, and, in their quest to reacquire what they had lost, subjected others to the same loss. I am rather curious as to why Linebaugh never touched on the obvious connection between the two, given that it's an interesting one. He does point out that the commodification of laborers made possible the mindset that led to imperialism and slavery--but he does not discuss the effect of the enclosure movement on imperialism.

On the topic of Mexican ejidos--David Harvey argues that their loss was the product of neoliberalism. Bit of historical background: Carlos Salinas de Gortari, president of Mexico at the time, decided that the communal lands of owned by tribes in Mexico were not producing enough--and so he took their lands from them and sold them, generally, to foreign investors. What is interesting about this, however, is that it was not the first time. Under President Porfirio Diaz in the nineteenth century, precisely the same decisions were made, and they led rather directly to the participation of indigenous peoples in the Mexican Revolution, mostly led by Emiliano Zapata, and eventually to the creation of Article 27, which is precisely what Salinas de Gortari did away with, and which then resulted in the Zapatista Rebellion. The rights gained during the Mexican Revolution were thus lost as a result of neoliberalism. Also, I can't help but think that this deterritorialization is possible nowadays only because cultural genocide is not recognized as a violation of human rights. The culture of these indigenous groups depends at least partly on their interaction with the land, and with each other as co-residents/owners of this communal property. Without the land, the groups lose coherence, and the culture is at least severely damaged. But it also reveals at least one of the reasons why it was not included in the UDHR--it would stand in the way of capitalistic enterprises.

commodity

1) Linebaugh writes about the concepts of commonwealth and commodity in the mid-sixteenth century. The shift from commons to enclosures signals a system of commodification and brings the loss of a communal, cooperative, and convivial way of life (not to mention the commodification and de-valuation of women, and links to slavery). I wonder if we can talk about this a little in class. I think I understand what he means by "commodity" but I would really benefit from some discussions around the larger significance - a mapping of some sort to our concerns with everyday living and rights.

Linebaugh writes:

 The double nature of the commodity conceals its social hieroglyphics in which "a definite social relationship between people assumes in their eyes the fantastic form of a relationship between things." This is what gives to the commodity its opacity....The Bastard makes social relations of the commodity transparent. The bawd, the pimp, the broker, and the usurer act in the name of the commodity. Rape is the reality the commodity conceals. (67)

The "reality" that enclosures conceals is perhaps a way to think about the interpretations of individual and human. Or am I going off track?

(I had not read the poetry of that period to the changing roles of commoners: the criminalization and gradual demonization of commoners.) But I'm wandering...

In "Neoliberalism on Trial" David Harvey writes on the accumulation by dispossession and I'm trying to keep that in view (160). He also elaborates on commodification (165).

2) The Magna Carta as a metaphor and its changing icons in art is interesting. For one, it seems to points to what we have been discussing in part: the one who is the chronicler/the narrator. Perhaps this is also in part a discussion on the commodification of the human, of human labor, in particular. 

I am sorry these are not questions, they seem to be half-thoughts. 

See you tomorrow,

Tsering

The Contradictions of Rights

Linebaugh discusses many contradictions in interpretations of the Magna Carta.  In his discussion of contradictions, I didn't get a sense of what it is that allows so many contradictions to be employed when using the Magna Carta as an assertion of foundational values.  Linebaugh does a great job of pointing out the many contradictions –the disenfranchisement of women from the commons, habeas corpus and trying slaves, and Thomas Paine’s co-optation of the Magna Carta in favor of privatization, to name a few.  It seems to me that one of the reasons is the inherent contradiction within Article 29 of the Magna Carta: “No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land” (Magna Carta, Article 29). The “freeman” is a completely subjective subject position open for interpretation.  Although this is often read as a declaration of rights, the document is predicated on inequality.  Of course, the very need to declare rights in some way presumes the lack thereof.  The King’s legislation did not speak of any such rights for serfs, only for the “freeman”.  I also question if this is really about the rights of a group because, even though it states “freeman,” the only freemen were nobility.  Thus I wonder if this has more to do with the individual rights of members of a group than it is to do with individual rights.

Ostensibly, the question of individual rights is elevated in human rights discourse.  However, there remains significant tension between the rights of an individual and the rights of individual members of a group.  The risk, of course, is maintaining hierarchical and privileged groups (like Christians, men, etc.).  Even the UN’s website on human rights is vague in explaining what human rights are and who they are for:

•  Human rights are founded on respect for the dignity and worth of each person;
• Human rights are universal, meaning that they are applied equally and without discrimination to all people;
• Human rights are inalienable, in that no one can have his or her human rights taken away; they can be limited in specific situations (for example, the right to liberty can be restricted if a person is found guilty of a crime by a court of law);
• Human rights are indivisible, interrelated and interdependent, for the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect respect for several other rights.
• All human rights should therefore be seen as having equal importance and of being equally essential to respect for the dignity and worth of every person.

(http://www.un.org/en/globalissues/briefingpapers/humanrights/index.shtml)

Much is left up to interpretation here.  What is considered respect or dignity or worth?  Human rights are inalienable, but they can be taken away – a serious contradiction it seems.  These attempts to universalize human rights more clearly show the inability to clearly define and be specific about what those rights are than they show individuals enjoying these rights.  It seems to me that one major problem is that from the Magna Carta to the current United Nations Declaration on Human Rights, one must interpret those rights, which destabilizes the very notion of universal human rights.  Systems of belief, ideologies, religions, politics, all sorts of identity categories militate against interpretations that would prevent these rights from being enacted/exercised.  What kind of radical change would address these contradictions?