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Challenges for Law and Lawyers in the Next Millenium: Democracy in Domestic and International Law. Final Report of the XIV Congress of the International Association of Democratic Lawyers, Capetown, South Africa, 1-5 April 1996, edited by Prof Lennox S Hinds, Rutgers University

Includes chapter by Bill Bowring “France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience”, and many other papers.

Russia’s war on Ukraine

Russia’s war on Ukraine

Socialist Lawyer No. 89, May 2022

Bill Bowring, International Secretary, Haldane Society of Socialist Lawyers; Professor of Law, Birkbeck College, University of London

At the time of writing, it is Day 45 of Putin’s illegal invasion of Ukraine.

In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin. The Russian invasion of Ukraine since 24 February is Putin’s disastrous adventure.

The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Charter’s Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”

Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the genocide case, Ukraine v Russia.

In his speech of 21 February 2022 to his Security Council, forcing them each to share responsibility for the invasion, Putin hardly mentioned NATO.

He said (in the official Kremlin translation) “ …modern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia. This process started practically right after the 1917 revolution, and Lenin and his associates did it in a way that was extremely harsh on Russia – by separating, severing what is historically Russian land. Nobody asked the millions of people living there what they thought… Lenin’s ideas of what amounted in essence to a confederative state arrangement and a slogan about the right of nations to self-determination, up to secession, were laid in the foundation of Soviet statehood. Initially they were confirmed in the Declaration on the Formation of the USSR in 1922, and later on, after Lenin’s death, were enshrined in the 1924 Soviet Constitution.”

So in Putin’s view Ukraine has no right to exist. He denounces Lenin’s “Right of Nations To Self-Determination”. On this issue Haldane stands with Lenin. See the Special Issue of Socialist Lawyer No.53, October 2009, “The Right to Self-Determination”. You can find this easily on the Haldane web-site.

Putin is also horrified by the fact that Soviet Ukraine, as a Union Republic of the USSR,  became a founding member of the UN in 1945 (as did Belarus) and had its own seat in the General Assembly. In 1991 it became an independent sovereign state, with the collapse of the USSR. In 1996 in its first independent Constitution it created the Autonomous Republic of Crimea with its own Supreme Soviet and privileges for the Russian speaking inhabitants. From that date there was no movement to rejoin Russia. I first visited Donetsk and Crimea in 1992, and many times thereafter.

By the 1997 Partition Treaty between Russia and  Ukraine, Ukraine agreed to lease Sevastopol to Russia for 20 years until 2017. The treaty also allowed Russia to maintain up to 25,000 troops, 24 artillery systems, 132 armoured vehicles, and 22 military planes on the Crimean Peninsula. Russia never disputed that Crimea was an integral part of Ukraine, until the Russian Annexation in 2014, when Russia abrogated the Treaty. Those forces carried out the illegal annexation on 2014. In international law Crimea remains part of Ukraine.

President Yanukovich intended to enter into the Association Agreement with the EU, was prevented by Russian pressure, and then fled the country during the Maidan revolution, having stolen enormous sums from Ukraine. So Russia invaded Ukraine from 2014, and starting arming the “separatists” in Donetsk and Luhansk. From 2014 until very recently, Russia insisted that Donetsk and Luhansk remained part of Ukraine, and wanted special status for them. For myself, I can’t see why they should not have the status which Crimea had before 2014, within Ukraine.

In 2014 Ukraine had no serious army. Now it has a professional army with experience fighting Russia proxies, armed by Russia, since 2014. It has every legal right to seek support, weapons etc, in its self-defence.

The so-called “anti-imperialist” left, in reality apologists for Putin, insist that the present war is all the fault of NATO. However,  NATO became irrelevant in 1991, when the Warsaw Pact, its opposite number, was dissolved. In 1999 NATO acted illegally and violated its own Charter (which specified that it was a purely defensive organisation) when it bombed Serbia. Trump wanted to scrap it. Now, like a zombie, it has returned – thanks to Putin..    

There is no prospect of NATO accepting Ukraine as a member in the near future, and President Zelensky says it does not want to join, although as a sovereign state Ukraine is entitled to invite the forces of any state of organisation. That is the basis on which the presence of Russian forces in Syria is lawful in international law.                            

Ukraine is a highly corrupt state, dominated by warring oligarchs – Poroshenko, Kolomoisky, Firtash. Zelensky, a former TV comedian, was said to be the cat’s paw of Kolomoisky. But it does have democratic elections and a free media. Having failed to keep his promise to deal with corruption, Zelensky was increasingly unpopular before 24 February. Putin saved him.

Russia is a kleptocracy, a regime of thieving under secret service rule. There are no free elections, and the last independent media have been closed. The Kremlin regime is increasingly repressive, and Russia suffers from a rapidly diminishing population, an HIV/AIDS epidemic, rabid Covid, and high inflation.

The working class of both countries is getting it in the neck from both regimes, Ukrainian and Russian, and will be the losers in both countries if the war since 2014 is intensified. We in Haldane and ELDH stand with the workers and with the free trade unions of both countries. ELDH has member associations in both Ukraine and Russia.

And Putin already has three major achievements.

First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.

Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, and large sums of Russian money, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.

Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.

Legal and human rights aspects of the aggression by the Russian Federation against Ukraine

Parliamentary Assembly of the Council of Europe: Committee on Legal Affairs and Human Rights; Meeting to be held in a hybrid manner, on 4 April 2022 from 9.30am – 12 noon  and from 2.30pm – 5pm, CEST (Central European Summer Time)

Legal and human rights aspects of the aggression by the Russian Federation against Ukraine

Intervention by Professor Bill Bowring, Birkbeck College, University of London, Barrister

In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin, whose disastrous adventure the Russian invasion of Ukraine since 24 February is.

The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”

Putin has made it clear that in his view Ukraine is an artificial nation, created by V. I. Lenin, which has no right to exist. Putin is also enraged by the fact that the Ukrainian SSR had the status of a Union Republic, with the right to secede, in the USSR, and was a founder member of the UN in 1945 with its own seat (with Belarus) on the UN General Assembly. It became an independent sovereign state automatically in December 1991.

Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the Ukraine v Russia, genocide case.

Less than a month after Putin’s invasion of Ukraine, Russia ceased to be a member of the Council of Europe. On 16 March 2022 the Committee of Ministers decided to expel Russia from the Council of Europe with immediate effect, but without spelling out the consequences.

Was it a surprise? Russia had come close to expulsion in 2000 soon after it joined the Council, following Lord Frank Judd’s excoriating reports as rapporteur on Russia’s gross human rights violations in Putin’s Second Chechen War. But Tony Blair invited Putin on a private visit to London in April 201, including tea with the Queen. Putin publicly thanked Blair a year later for having saved Russia from expulsion.

Again, the Council of Europe imposed sanctions on Russia following its illegal annexation in 2014 of Crimea and support for separatists in Donbas. But the sanctions were removed, Russia was restored to its rights in PACE, and it paid its arrears of subscription, in a singularly opaque deal done in 2019.

Russia has ratified many treaties of the Council. It is a party to the following regional human rights treaties: the European Convention on Human Rights and several of its protocols; the Revised European Social Charter; the European Convention for the Prevention of Torture; and the Framework Convention for the Protection of National Minorities. Russia ceased to bound by any of these treaties as from 16 March.

As concerns the applicability of the ECHR, on 23 March 2022 the Committee of Ministers and the Plenary of the Strasbourg Court decided, separately but almost simultaneously, that Russia will cease to be a Contracting Party to the ECHR on 16 September 2022. This means that Russia will be responsible for violations of the ECHR that occur during this six month period. Thus the Strasbourg Court will have jurisdiction over all applications alleging violations of the ECHR that occur before and  during this period that are filed until 16 September 2022, and possibly later, if the Court accepts cases alleging violations before that date but where domestic remedies are exhausted thereafter.

The newly elected Russian judge, my friend Mikhail Lobov, will continue hearing cases until 16 September 2022, when he will no longer be a permanent member of the Court. He will continue to sit until then in all cases concerning Russia,

Russia’s expulsion is a disaster for the whole population of Russia, who lose the rights exercised by so many in the 24 years since Russia ratified the ECHR. As of 28 February 2022 18,000 applications against Russia were pending. Their cases will be dealt with.

From my experience representing the applicants in the first six Chechen cases decided in 2005 five years after their claims were lodged, and most recently the judgment of 24 September 2021 in favour of my client, in Carter v Russia, that her husband Alexander Litvinenko was murdered by the Russian state, I am certain that my clients did not seek financial compensation, nor were they deterred by the long wait.

What they wanted was the truth of what had happened to them and where responsibility lay, from the highest court in Europe.

In an article of 28 March 2022, the serious Russian daily newspaper Kommersant, reporting on the decisions of 23 March 2022, asked whether, with the 18,000 backlog, the Court would prioritise judgements in the most politically resonant cases, for example the many complaints of Alexander Navalny, or the NGO Foreign Agent cases. The paper recalled that the first 11 such NGO complaints were lodged in 2012. In March 2017 when the Court communicated them, there were already 48 NGO applicants.

So far there were no indications that Russia would not execute judgments against it, albeit without enthusiasm. It should be recalled that Russia has paid almost all the compensation ordered in the many cases decided in 24 years. There have been many cases where reforms to law and procedure have been implemented following judgments. The case-law of the Constitutional Court of the Russian Federation is full of cases citing the ECHR and its case-law.

Since the judgment and law of 2014 and 2015 permitting the Constitutional Court to rule that it is constitutionally impossible to comply with a judgment of the Court, there have been only two such cases, Anchugov and Gladkov v Russia, following the UK’s bad example in Hirst v UK, which was settled to the satisfaction of the Committee of Ministers; and the Former Yukos Shareholders v Russia, where I have some sympathy with Russia, which has paid costs and expenses, but not the enormous sum of compensation..

How will the war end? No-one knows, but it has already been a disaster for Russia. Ukraine had no army in 2014. Now it has a professional army with more than seven years of experience fighting Russia and its proxies. Ukraine has become much more united and patriotic. Putin did not expect such resistance to his invasion.

Nevertheless, Putin already has three major achievements.

First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.

Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.

Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.

Theses on the present Russia-Ukraine crisis – Bill Bowring

Theses on the present Russia-Ukraine crisis

1) NATO became irrelevant in 1991, when the Warsaw Pact, its opposite number, was dissolved. In 1999 NATO acted illegally and violated its own Charter (which specified that it was a purely defensive organisation) when it bombed Serbia. Now, like a zombie, it has returned.    

2)  Ukraine became a founding member of the UN in 1945 (as did Belarus) and had its own seat in the General Assembly as a Union Republic of the USSR. In 1991 it became an independent sovereign state, with the collapse of the USSR. In 1996 in its Constitution it created the Autonomous Republic of Crimea with its own Supreme Soviet and privileges for the Russian speaking inhabitants. From that date there was no movement to rejoin Russia.

3) By the 1997 Partition Treaty between Russia and  Ukraine, Ukraine agreed to lease Sevastopol to Russia for 20 years until 2017. The treaty also allowed Russia to maintain up to 25,000 troops, 24 artillery systems, 132 armoured vehicles, and 22 military planes on the Crimean Peninsula. Russia never disputed that Crimea was an integral part of Ukraine, until the Russian Annexation in 2014, when Russia abrogated the Treaty. Those forces carried out the annexation. Yanukovich intended to enter into the Association Agreement with the EU, was prevented by Russian pressure, and then fled the country, having stolen enormous sums from Ukraine.

4) The annexation was illegal and in international law Crimea remains part of Ukraine. Since 2014 Russia has insisted that Donetsk and Luhansk remain part of Ukraine, and wants special status for them. For myself, I can’t see why they should not have the status which Crimea had before 2014.          

5) There is no prospect of NATO accepting Ukraine as a member in the near future, although as a sovereign state Ukraine is entitled to invite the forces of any state of organisation. That is the basis on which the presence of Russian forces in Syria is lawful in international law.                           

6) None of this explains why Russia has moved more than 150,000 soldiers and equipment, ships, etc, up to the Ukrainian border.                                                                                        

7) Ukraine is a highly corrupt state, dominated by warring oligarchs – Poroshenko, Kolomoisky, Firtash. Zelensky, a former TV comedian, is the cat’s paw of Kolomoisky. But it does have democratic elections and a free media. Russia is a kleptocracy, a regime of thieving under secret service rule. There are no free elections, and very limited free media. The Kremlin regime is increasingly repressive, and Russia suffers from a rapidly diminishing population, rabid Covid, and high inflation. It cannot possibly afford to keep such enormous mobilisation on the border of Ukraine. Neither corrupt regime can continue the present situation.                                                                                                                                      

8) The working class of both countries is getting it in the neck from both regimes, Ukrainian and Russian, and will be the losers in both countries if the war since 2014 is intensified. We in IADL and ELDH should stand with the workers and with the free trade unions of both countries.

The long road to international justice

Today, February 15th, marks the centenary of the inaugural session of the Permanent Court of International Justice at The Hague. Bill Bowring explores how international justice has operated since then.

What do we have to celebrate in 100 years of international justice? How should we evaluate Labour’s key role in its founding and continuation?

The Permanent Court of International Justice (PCIJ) was the Court of the League of Nations. The League originated in proposals before WWI, in the 1907 Hague Conference, but became a reality when the League was founded on January 10th 1920 at the Paris Peace Conference which ended the war. The League had 44 states at its start, 31 of which had been allies of Britain, France and the USA. It was the first worldwide intergovernmental organisation. At its peak in 1934-5 it had 58 members, but the USA never joined, and the USSR joined in 1934 only to be expelled after invading Finland.

Of course, most of the planet, with the exception of South America which had already broken free from Spain and Portugal, was ruled by Britain, France and the other European colonial powers. The battle for decolonisation raged through the decades after WWII, and has not yet been completed. All round the world there are peoples with a right to self-determination – the right which had its origins with Marx, Engels and Lenin – which they are still denied.

In 1920 the Council of the League of Nations organised the drafting of the Statute of the PCIJ, which was able to move into the grand Peace Palace in The Hague, constructed in 1913 before WWI. The first session of the PCIJ took place from January 30th to March 24th 1922, with a formal opening on February 15th.

Despite its abject failure to prevent war, the League persisted until 1946, when it had already been replaced by the United Nations, founded on October 24th 1945. The PCIJ continued as the UN’s International Court of Justice (ICJ), which still resides in the Peace Palace, and also inherited the Statute with its dated language (“civilised nations”, etc.).

What was Labour’s attitude? Through the efforts of Arthur Henderson and Ramsay MacDonald, the Keir Starmers of their day, the Labour Party endorsed the idea of a League of Nations at a special conference in December 1917. The Party’s 1918 programme Labour and the New Social Order demanded that a “Universal League or Society of Nations” be established. At another Special Conference in April 1919 they accepted the provisions under which nations in dispute would be obliged to refer their difference to the League’s court.

In its 1928 programme Labour and the Nation, Labour pledged to use the PCIJ, and as Foreign Secretary in MacDonald’s second minority Labour Government of 1929-31, Henderson signed an Optional Clause extending the jurisdiction of the PCIJ to all legal disputes involving Great Britain.

Labour’s programme in no way challenged the existence of the British Empire, or the barbarism and bloodshed through which it was defended.

The dominant view of the progressive radicalism of the postwar Attlee government of 1945-1951, must be revisited against the brutality of its imperial adventures.  At the end of WWII, the Labour government found itself involved in three military interventions, in Indochina, Indonesia and Greece, all initiated while Labour had been in coalition with the Conservatives, but now enthusiastically continued. The welfare state was accompanied by the creation of the warfare state. It was the Labour Party which cemented the ‘special relationship’ with the United States, and Attlee and Labour played a central role in 1949 in establishing NATO. In the 2019 election, Labour confirmed its support for NATO and for the UK’s financial contribution.

Nevertheless, the ICJ has flourished, with some progressive decisions. In 1986, Nicaragua won its case against the USA, over its support for the Contras and other actions. In 1995 the ICJ ruled on the possession and use of nuclear weapons, in an Advisory Opinion which continues to cause problems for nuclear missile submarine commanders. In 2004 it ruled on the illegality of Israel’s Wall in the Occupied Palestinian Territory. And in 2019 it lambasted the UK for its violation of the right to self-determination of Mauritius, when, by duress, it kept the Chagos Islands, and handed Diego Garcia to the USA for its notorious base.

The Human Rights Committee of the UN hears complaints against UN states for individual violations, and there are now three regional courts – the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human and Peoples’ Rights – under which individuals and groups can complain against governments. Britain has never accepted the European Convention on Human Rights, despite its being the brain-child of Winston Churchill. Theresa May saw it as a terrorists’ charter. The UK ratified it in 1953 but only allowed complaints to be brought under it in 1966, and immediately suffered several defeats over colonial issues, and only brought it partially into UK law in the Human Rights Act 1988.

The Labour left, initially sceptical about the ECHR because it would give too much power to judges, now defends it against the Tory onslaught.

International Criminal Justice made a shaky start with the creation by the UN Security Council of the International Criminal Tribunals for Yugoslavia and Rwanda, prosecuting individuals for the crime of Genocide, Crimes Against Humanity and War Crimes. The International Criminal Court was created in 1998 after a huge campaign by NGOs, and 123 states have ratified its Rome Statute. It is weakened by the fact that the USA, India, Russia and China have not signed up. But after a start dogged by double standards, and an exclusive focus on Africa, the outgoing Prosecutor, Fatou Bensouda, has broadened its remit, now to include was crimes committed in Palestine.

So it would be far too early to write off the whole of international justice. And for a socialist lawyer like myself it provides opportunities for useful legal work, in my case representing Kurdish and Chechen victims.

Bill Bowring, Colchester CLP, teaches international law and human rights at Birkbeck College. He is International Secretary of the Haldane Society of Socialist Lawyers and President of the European Lawyers for Democracy and Human Rights (in 21 European countries).

Деградация международного правового порядка? Реабилитация права и возможность политики. My book in Russian, buy electronic copy from Litres.ru

Buy my book in Russian electronically with 10% discount.

https://www.litres.ru/bill-bauring/degradaciya-mezhdunarodnogo-pravovogo-poryadka-reabilitaciya/?ref_key=138a3e383a3e9a50d48725dab70f1037bfd035f3a30a94873306015863d1b8ec&ref_offer=1

Деградация международного правового порядка? Реабилитация права и возможность политики

Blog: Is Russia a European country?

Bill Bowring: Is Russia a European country?

6 September 2021

by Bill Bowring, Professor of Law at Birkbeck College, University of London, where he teaches public international law, human rights and minority rights. https://www.rightsinrussia.org/bowring-2/


It is too often asserted that Russia is not a “European” country: not necessarily by the Brexiteers who are certain that Britain is not European either, but “global”. 

True, from 1237 to 1480, with the battle known as the Great Stand on the Ugra River, what is now Russia paid tribute to the Mongol-Tatar Horde. For a graphic depiction of what this meant, see Tarkovsky’s great film Andrei Rublev. The tribute was paid with regular visits to the Tatar capital in the steppe (better for horses), and Russian rulers intermarried with the Tatar elite. To this day the Russian language has many Turkic – the Tatar language, the historic tongue of 5 million Tatars in Russia, is Turkic – words, for important things, especially in the 13th to 15th centuries, like horse (loshad), kazak, guard (karaul), treasury (kazna), money (denga), brick (kirpich), watermelon  (arbuz), shoe (bashmak), etc 

For the rise of Moscow, Eisenstein’s Ivan the Terrible cannot be bettered. Only 50 years after the defeat of the Tatars, Ivan IV became ruler of Moscow in 1533, of Russia in 1547 and in 1552 conquered Kazan, now the capital of Tatarstan, razed the Qul Sharif Mosque (now splendidly rebuilt) to the ground, and constructed St Basil’s cathedral in Red Square to celebrate. 

However, Ivan did not only look eastwards. In 1570 he was furious (the letter is on the internet) when Queen Elizabeth I rebuffed his offer of a strategic marriage: England was building a maritime empire, Moscow a continental empire. Serious trade between England and Russia had begun with the Muscovy Company in 1551.

Indeed, Britain and Russia have been on the same side of every serious war – Napoleon, WWI, WWII – since then. Alexander I marched all the way to Paris in 1814, defeating Napoleon on the way, with generals named Barclay de Tolly (Scots/German) and Wittgenstein. The exception is the Crimean War (1853-1856), and no student, English or Russian, can tell me what this war was about. Britain and Russia did not even come to blows in Central Asia, and both failed to conquer Afghanistan. Britain lost a whole army at Kabul in 1842. 

The greatest Tsar of Russia was Catherine II, a German princess, there are even more German family names than Scots and Welsh. Many Russians have the family names Gordon, Hughes, Williams – Scots and Welsh who built the railways, married Russians and stayed. 

I’m a lawyer. The founder of law as an academic discipline in Russia, Semeon Desnitsky, spent six years in Glasgow, studying constitutional law under Adam Smith, and becoming Catherine’s chief legal adviser. In the mid 19th century Russian civil law was based on German law, and restored in the NEP period after 1917; Alexander II initiated jury trial on the English model, an independent bar, and “justices of the peace” in 1864, all restored since 1991; the present Civil Code was drafted with Dutch experts, the Constitutional Court of the Russian Federation is based on the German Verfassungsgericht in Karlsruhe. Russia is a member of the Council of Europe since 1996 and party to the ECHR since 1998.

Russia is not European? Then neither is Britain, the latter suggestion being more convincing.

TRANSFORMATION IN LAW AND ADVOCACY: ADVOCACY FOR WHOM AND WHAT KİND OF? Presentation at the Paris Symposium for Ebru Timtik, 3 April 2021

Bill Bowring, Professor of Law, University of London, Barrister of England and Wales, President of the European Lawyers for Democracy and Human Rights.

We are here to commemorate the tragic death in prison of Ebru Timtik, on hunger strike in protest against the absence of a fair trial for her in Turkey. She was a brave fighting lawyer.

Here is my answer to the question for this session.

I am a revolutionary socialist who happens to have become qualified as a lawyer. I seek to use my skills as far as possible in the class struggle, especially struggles for self-determination. I have written a lot about this.

So my own history might be of interest, to show what I mean.

I did not qualify at first as a lawyer. When I was 16-17, already a communist, I worked on a small cargo ship around West Africa and the East Coast of the USA. This opened my eyes to the reality of European colonialism in Africa, and I participated in New York in the March of a Million against the Vietnam War.

The following year, 1968, I was a protestor against the Vietnam War, at the Democratic Convention in Chicago, as a member of the Students for a Democratic Society (SDS).

My degree from 1967 to 1970, at Kent University, was in Philosophy. I was a revolutionary socialist, first in the Revolutionary Socialist Students Federation, and for a period in 1972, the high point of the class struggle in England, I was a full time revolutionary in the Workers Revolutionary Party, organising coal miners.

In England it is possible to qualify as a lawyer in just two years, which I did from 1973-1974.

I lived for 15 years in Brixton, South London, from 1974, and served as a volunteer adviser in the Brixton Advice Centre. I was “called to the Bar” in 1974, and in my first cases as a barrister I represented housing squatters, and campaigned against the proposed law criminalising squatting.

In 1978 I was elected as a Labour Councillor in Lambeth which includes Brixton. There were several black councillors, and a black Mayor.

I was involved in the Brixton Riots in 1981, when Brixton was under a state of siege from the police, and in 1985 when the police shot a black woman in bed.

In 1986 I and my Council colleagues were prosecuted by Mrs Thatcher for “wilful misconduct”, for taking illegal action against her policies, fined £160,000, and banned from holding public office for 5 years. We raised the money through the Labour Party and trade unions.

Since that time I have been active in the Haldane Society of Socialist Lawyers.

From 1986 to 1990 I represented victims of police misconduct: wrongful arrest, false imprisonment, torture, malicious prosecution. These cases were mostly cases of racist attacks on black people and the working class.

In 1988 I was sent on a mission to Palestine, and first saw the relevance of human rights law and the law of armed conflict. I have returned to Palestine many times.

Since 1991 I have been closely involved in the struggle against the British occupation of Northern Ireland, in the armed conflict which lasted from 1969 to the 1998 Good Friday Agreement. Marx and Engels strongly supported the fight for Irish independence. I fight for the reunification of the Island of Ireland.

I began teaching, at the University of East London, in a working class district, in 1990. Starting in 1992, I worked as a volunteer with the Kurdish Human Rights Centre, and represented Kurdish applicants at the European Court of Human Rights: Özgur Gundem v Turkey, Aktas v Turkey, ipek v Turkey and many others. Since 2000 I have been representing Chechen and other victims of Russian violations of the ECHR.

I agree with Marx and Engels that there can be no socialist law, nor can there be socialist legal theory. The law is made by the capitalist state, and is an instrument of the ruling class in the class struggle.

Workers can and must, however, advance legal demands. In their time this was the fight for a ten hour day, to be enforced by law. To do this they need the services of competent lawyers

In my opinion lawyers cannot be a revolutionary vanguard, but there can be revolutionaries who are lawyers, just as there can be revolutionaries who are accountants, or doctors. Or even capitalists, like Engels. But I am not sure what a “revolutionary lawyer” would be. Probably a bad lawyer.

The workers or any people involved in struggle against capitalism, or suffering persecution or injustice, may need a competent lawyer. That is what we try to offer in the Haldane Society. We played a particularly important role in the Great Miners Strike of 1984-5. Now we are involved in many struggles – there is resistance all over Britain.

But I don’t think law can be transformative or emancipatory. That is the role of the working class in the class struggle. Lawyers are competent technicians, serving the working class.

The reception or the lack of it, of the concepts of Rudolf von Jhering in the English speaking world

Outline of Bill Bowring’s presentation

Ivanovo State University, Russia, 25 September 2020

The Struggle for Law by Rudolf Von Jhering | Waterstones
  1. There are only two translations of Jhering’s work in English. Jhering’s masterpiece, Geist des römischen Rechts (The Spirit of Roman Law) 1852–1865, in two volumes has never been translated. The two translations are Der Kampf ums Recht (1872) and Der Zweck im Recht (1877–1883).
  2. Both were published in the USA, the first as The Struggle for Law, translated from the 5th edition by the attorney John J. Lawlor, and published in Chicago in 1879. There is a facsimile edition published in 2017. The second was published as Law as a Means to an End, translated by Isaac Husik, and published in New York in 1913, with a reprint in 1968. This is hard to find.
  3. Nevertheless, I have found at least 20 scholarly articles in English in which Jhering is mentioned, and in some of which his work is discussed in detail.
  4. What is the nature of Jhering’s contemporary reception? And why have the two English translations appeared only in the United States?
  5. The reason is to be found in an article published in 2012 in the Tulsa Law Review, by three scholars at the University of Connecticut and Fordham Schools of Law, Julie Grisé, Martin Gelter, and Robert Whitman. Their article is entitled “Rudolf von Jhering’s influence on Karl Llewellyn”, that is, Jhering’s influence on the American Realist Legal School. Karl Llewellyn (1893 to 1962) was fluent in German, and indeed fought on the German side in WWI, winning an Iron Cross. He is best known for The Bramble Bush: On Our Law and Its Study, 1930, republished in 2009 by OUP.
  6. This school no longer dominates US jurisprudence, but the authors cite President Obama, a lawyer, in 2009 in relation to an appointment to the Supreme Court: “Iwill seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation.” Realism!
  7. What was this influence?
  8. First, according to the authors of the article, was Jhering’s crusade against conceptual jurisprudence – his campaign against the use of “heavenly concepts” to solve real problems, and juristic work driven by purpose, not invisible concepts. For Jhering, the life of the law was experience, not logic: law had to be functional.
  9. Second, Llewellyn leaned about purposive interpretation from Jhering. The language of a statute was relative, not absolute, must be understood in terms of its context: law was a means to preselected social ends.
  10. Third, Llewellyn’s views on the judicial function – that law is merely a prediction of what the courts will really do.
  11. The American Realist School has in turn had a profound influence on Critical Legal Studies, which remains a major school of jurisprudence in the US and UK.
  12. One aspect of this is the “indeterminacy thesis”, which emerged as a left-wing reply to Ronald Dworkin’s contention that there is a “right answer” to each legal problem.  In its strongest form it is an extreme version of legal realism. It argues that nothing is law until it has been promulgated by an official – either a judge or the legislature.
  13. Duncan Kennedy of Harvard Law School is a leading Critical Legal scholar. In an article published in 2000 in the Colombia Law Review, on Lon Fuller, placing Fuller’s analysis of contract questions in the context of the critique of the 19th century will theory of contracts, and the rise of sociological jurisprudence and legal realism.
  14. In a footnote Kennedy says: “Between 1972 and 1975, I read Rudolf von Jhering’s The Spirit of Roman Law (in French translation) because Fuller had cited it. Jhering’s seemed to me a much better, indeed an unutterably brilliant, take on the issues Fuller discussed, and this greatly reduced my admiration for Fuller. My article downgrades him for this reason.”
  15. Interest in Jhering is not only to be found in the US. In 2009 Neil Duxbury, now Professor of English Law at the London school of Economics, published an article in the prestigious Oxford Journal of Legal Studies entitled Jhering’s Philosophy of Authority. His starting point was that during the 20th century Anglo-American legal philosophers saw Jhering either as the German forerunner of American legal realism, or as an early proponent of a jurisprudence of interests. In Duxbury’s view Jhering’s goal was rather to explain how legal systems originate, and how they maintain authority. His originality was in the concept of Rechtsgefühl, that authority depends on citizens’ feelings of what is right and just. He believed that the authority of a legal system depends on its ability to negotiate and accommodate struggles based on feelings of right. Struggles between citizens, between citizens and the State, and between States.
  16. My curiosity was aroused by the following.
  17. In the Kampf,  Jhering is full of praise for the “combative Englishman” – “the typical figure of the travelling Englishman who resists being duped by inn-keepers and hackmen, with a manfulness which would induce one to think he was defending the law of Old England.. For, in the few shillings which the man here defends, Old England lives.” (p. 62)  and later “in the shilling he stubbornly defends the political development of England lives.” (p.94) All of this is to illuminate the “healthy feeling of legal right”.
  18. In the Zweck, I noted Jhering’s powerful critique of the liberalism of John Stuart Mill (p 403 to 409), having denounced socialism and communism as “vain folly” (p.396) and referred to “so-called class struggle” p 410. To me the Zweck seems curiously detached even from the world of the second half of the 19th century, and most references are to Roman law.   

Igor Shoikhedbrod “Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights”, reviewed by Bill Bowring

Igor Shoikedbrod has given us a strongly argued and rigorous engagement with Marxist theory, which is – in the opinion of this reviewer – a great pleasure to read, and from which there is much to learn. However, the title is perhaps misleading. Marx never provided a critique of liberalism as such, as a political ideology. I will turn finally to what Marx thought of Liberals, or Whigs as they were then called.

In my view the title to Chapter 5, “Contemporary Responses to Marx’s Critique of Liberal Justice” gives a much better idea of what the book is about. This chapter contains incisive and powerful critiques of some leading contemporary theorists of liberal justice: John Rawls (141-150), Jürgen Habermas (150-159), Axel Honneth (159-169), Nancy Fraser (169-173). As Igor points out, Marx’s journey from philosophy to law “formed the basis for his critique of formal liberal justice” (173). And these four scholars “have tried either to respond directly to Marx’s critique or to modify his critique in the light of the challenges presented by global financial capitalism.” (173)

Igor, however, goes further than explicating Marx’s “critique of formal liberal justice”. He has a much bolder claim, which provides the backbone to his book: that a “major premise” of the development of Marx’s materialist theory of history was his “new materialist conception of right” (Igor’s emphasis, 34). On the following page Igor explains that this is “historically situated and is based on the view that different standards of right apply in different modes of production”. Igor has chosen to translate the German Recht as “right”, meaning a system of law and justice (2); “rights” would be Rechte. He is quite right not to translate Recht as “law” or “the law”. “Law” and “the Law” are the subject of considerable mystification, even partially concealed veneration, by many “critical legal” and, in particular, “post-modern” scholars. Law is given a status and significance which, for Marx and Engels, it simply did not deserve.

It should be noted that Marx wrote a “critique of political economy”, and on no account a “theory of economics”; and most certainly did not attempt a theory of law. Indeed, in 1843-4 he wrote his Critique of Hegel’s Philosophy of Right, which acknowledges the power of the young Hegel’s critique of capitalist relations (Lukács), while showing how Hegel could not arrive at a materialist diagnosis or recognition of the class struggle.

Igor demonstrates a splendid knowledge of the GrundrisseCapital, and many other texts by Marx and Engels, and their critics. But there is one important text which does not appear in his book, surprisingly. In 1887, a few years after Marx’s death, Engels and Karl Kautsky published their article Juristen-Socialismus, translated into English and published as “Juridical Socialism” (Engels and Kautsky 1977, see also Beirne 1977). Engels explained – and Marx would not have disagreed – how the main battle cry of the bourgeoisie became “equality before the law”, because their struggle had to be based around legalistic demands. “This solidified a world view based on legal rights … at first the proletariat had embraced the world view of legal rights, and sought weapons in it for use against the bourgeoisie.” Engels and Kautsky insisted that “Marx … presents no legalistic demands at all in his theoretical work … Legal rights, which always reflect the economic conditions of a specific society, are treated only in a very secondary manner in Marx’s theoretical studies, as opposed to the primary historical topic of situating particular circumstances, means of acquisition, and social classes in specific periods.” But they also insisted that socialists would not fail to present certain legalistic demands: “Every struggling class must therefore formulate its demands as legalistic demands within a program … however, no existing socialist party has thought of making a new legal philosophy of its program, and this will not happen in the future.” For example, the workers’ struggle for the ten hour day, which occupies a significant part of Capital.

This position was paraphrased by Peter Schöttler in 1993 as follows: “… there is indeed no proletarian or socialist legal ideology (just as there can be no socialist philosophy of law), but there are proletarian, or socialist, legal demands, and these are necessary, nay indispensable, if the proletariat wishes to articulate its interests politically in opposition to the bourgeoisie and the bourgeois state. The political class struggle includes making legal demands.” In fact, Engels and Kautsky – and Marx – provided the strongest support for Igor’s position.

There are at least 13 references in Igor’s book to “Marx’s new materialist conception of right” (33, 35, 38, 43, 47 x 2, 85, 88, 137, 138, 208, 213, 214) – more than appear in the Index, which is rather incomplete. In my view this is what the book is really about – that is, the critique of right, or in other words, formal bourgeois or liberal justice. And this is based on Marx’s new materialist conception (not theory) of right.

Chapter 4 is entitled “The Normative Argument for Communist Legality”. Again, the title is perhaps misleading, since this chapter contains to my mind the best critique – indeed demolition – of the “commodity exchange theory of law”, better known as the Commodity Form Theory or CFT, of Evgeny Pashukanis.

Contemporary “Pashukanists” include China Miéville, Robert Knox, and Grietje Baars (see my 2020 review in Marx & Philosophy Review of Books of her monumental The Corporation, Law, and Capitalism, a thoroughly Pashukanist work).

Pashukanis worked out the most rigorous and interesting attempt at a Marxist theory of law, his General Theory of Law and Marxism, in 1920-21 in Berlin while employed as the legal adviser to the Soviet Russian delegation negotiating the Rapallo Treaty with Germany. He wrote it in 1923. The General Theory was published in Russia in 1924. Of course, 1921 was the year in which Lenin introduced the New Economic Policy, described by him as an “economic system that would include ‘a free market and capitalism, both subject to state control,’ while socialized state enterprises would operate on ‘a profit basis’.” After Lenin’s death, Stalin changed course dramatically in his “great break” of 1928.

As Igor notes, “Although Pashukanis grants that recourse to law will still be necessary during the transition from capitalism to communism, he leaves no doubt about the withering away of law in developed communist society.” (103) That conclusion follows inevitably from Pashukanis’s commodity form theory of law – law, for him, is achieved under developed capitalism. Law will be replaced by administration. As Igor shows (107), Pashukanis’s most significant departure from Marx was his derivation of legal relations from commodity exchange relations.

Igor demonstrates (106) that the shortcomings of Pashukanis’s theory can be summed up on four levels. First, Pashukanis conflates three distinct concepts – positive law, legal validity and juridical personhood, under the unitary umbrella of the legal form. Second, he derives all legal phenomena from generalised commodity exchange relations, which forces him to confine his analysis to private law, and property law in particular. Third, he cannot make sense of public law, so that for him democratic planning takes the form of a purely technical process. And fourth, he contradicts Marx’s central claim that “legal relations stem from historically specific productive relations”.

The New Economic Policy demanded courts and a Civil Code – in essence the German Civil Code enacted in Russia in the mid 19th century. After Stalin’s turn to full state control, centralised planning, and forcibly collectivised agriculture, Pashukanis was forced to retract his theory, and to acknowledge, with Pyotr Stuchka, that there was indeed a new “socialist law” in the USSR. Engels had, as noted above, stated categorically that there could be no such thing. Pashukanis, having played a leading role in drafting the “Stalin Constitution” of 1936 with its chapter on human rights, was denounced as an enemy of the people, sentenced to death, and shot in September 1937. He was posthumously rehabilitated in 1956, after Stalin’s death.

Throughout his book Igor insists that “rather than envisioning the transcending of rights under post-capitalist conditions or material abundance and solidarity, Marx’s dialectical approach pointed to the transformation of civil and political rights on the basis of a communist mode of production that would aim at meeting the multiplicity of human needs. This position goes against conventional liberal and Marxist interpretations, according to which Marx was hostile to individual rights and predicted their obsolescence in the communist society of the future.” (208)

Marx’s new materialist conception of right leads to the conclusion that communist production would require legal relations of its own. Scott Newton (2016) that the USSR suffered from an over-abundance of law and legal regulation which could hardly be described as socialist. I entirely agree, and Igor provides ample textual support for this argument.

However, there is one point at which I do not agree. Igor mobilises Engels’ 1845 Speeches at Elberfeld in support of the proposition that although Engels was convinced that communist society would eliminate the root causes of crime and property disputes, he acknowledged that individual conflicts could still arise and would demand resolution by arbitrators (122). That is placing too much weight on Engels’s passing remark, I think. Igor is quite right to add that “Marx did not detail the future `laws’ of communist society; this task was left for the associated producers themselves.” (124)

Lastly, I turn to Marx’s scorn for the British Liberals (or Whigs). In his 1852 “The Elections in England. –Tories and Whigs” Marx wrote in his usual pithy and satirical manner: “It is evident what a distastefully heterogeneous mixture the character of the British Whigs must turn out to be: Feudalists, who are at the same time Malthusians, money-mongers with feudal prejudices, aristocrats without point of honor, Bourgeois without industrial activity, finally — men with progressive phrases, progressists with fanatical Conservatism, traffickers in homeopathical fractions of reforms, fosterers of family — nepotism, Grand Masters of corruption, hypocrites of religion, Tartuffes of politics.” One might think that this is not a bad description of the Liberal Democrats of today, especially in their coalition with the Tories under David Cameron and Nick Clegg.

9 March 2021

References

  • Beirne, P. 1977 Introduction to “Juridical Socialism” Politics & Society 7(2), pp. 199–201
  • Engels, F. and Kautsky, K. 1977 Juridical Socialism Politics & Society 7(2), pp. 203–220
  • Newton, S. 2016 Law and the Making of the Soviet World: the Red Demiurge Abingdon and New York: Routledge

URL: https://marxandphilosophy.org.uk/reviews/18909_revisiting-marxs-critique-of-liberalism-rethinking-justice-legality-and-rights-by-igor-shoikhedbrod-reviewed-by-bill-bowring/

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