Working paper for the Legal Form Workshop, Krakow, 14-15 April 2023. Not for citation.
Introduction
In this working paper, I start with the concept of the “legal form” as proposed by Przemysław Tacik and Cosmin Cercel in their substantial introductory paper “Towards the Generalised Concept of the Legal Form”. Next, I ask whether there has in fact been a serious debate as to “legal form” prior to the work in 2021-4 of Yevgeny Pashukanis. Third, I distinguish between “natural laws” and “human laws” as analysed by Baruch Spinoza, This distinction was maintained by his disciples Karl Marx and Friedrich Engels. For them a key natural law was the ”law of value”, which, like the law of gravity, determines the activity of capitalists whether they like it or not. Fourth, I maintain that “legal form” refers to human laws only, and that neither Marx nor Engels referred to or analysed the “legal form” or any cognate concept, nor did they feel they needed to. While Marx intended a volume on The State he did not proposed to write on The Law. Fifth, I turn to Pashukanis himself, starting with the history of his General Theory, and the context in which it was written, identifying startling problems with the translations into English. Sixth, what was his intention in concentrating on “legal form”, and why does it continue to exert such a powerful influence today?
The proposal by Tacik and Cercel
After introducing their reader to “modern dialectics” (as found in Lukács and Žižek[1]), the authors propose a working concept of the legal form. “Legal form is the transposition of an arbitrary political will onto the self-sufficient normative level which produces a surplus of discriminatory symbolic power that exceeds the power directly contained in the command of the law-giver.” As the authors make clear, this language is “Lacanian parlance”. Indeed, as Peter Čuroš has noted in his review of Cercel’s monograph[2], accurately, I think: “The methodology that Cercel follows in the book and his approach to the jurisprudence of state communism is inspired by four primary ideas – Giorgio Agamben’s concept of the state of exception, Walter Benjamin’s historicism, Jacques Lacan’s psychoanalysis and perception of the law as the “Other” in the symbolic stage and Slavoj Zizek’s spectre of the ideology.” They take us through Kant, for whom law is a self-sufficient normative world; and Hegel, for whom, they claim, “the “legitimacy of the law can lie only in its universal form”. Though, I add, neither had anything to say about the “legal form”. Finally, they present “Marx’s critique of the legal form”, which, they say “can be found mainly in his early writings”. It is certainly nowhere to be found in Capital, as I will explain.
Finally we come to “the properly Marxist concept of the legal form”: The legal form is a tool of political violence in the class struggle that consists in defining the threshold between social visibility and invisibility
They concede a page later as to “the scarcity of Marx’s considerations on the law itself – and the lack of general theory of the legal form in his writings”. And we are brought back, for a second time, to “Lacanian parlance”, and to Agamben’s “bare life” [3]
Legal form apart from Pashukanis – and with him?
Pashukanis’s Law and Marxism. A General Theory, first published in Soviet Russia in 1924, first appeared in English, in the translation by Barbara Einhorn, and edited and introduced by Chris Arthur, in 1978[4]. This was a translation of Allgemeine Rechtslehre und Marxismus, which was itself a translation into German of Общая теория права и марксизм (Obshchaia teoriia prava i marksizm).[5] In 1980 a translation from the Russian by the eminent US scholar of Soviet law, Peter B Maggs, appeared.[6] This is the version which appears on the Marxists.org website.[7] As this website points out, the complete footnotes to the General Theory, which do not appear in either translation appeared in J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.[8] In fact both the Einhorn and the Maggs translations omitted many important footnotes. I will return to the significance of this.
These appearances of Pashukanis in English, after so many years, elicited serious reviews, in 1980, from Roger Cotterrell, of the Maggs translation[9]; and in 1981 by Ronnie Warrington[10] of the Einhorn translation, with a reply by Alan Norrie in 1982[11]. The most recent serious exposition of Pashukanis’s theory, by Matthew Dimick, appeared in the 2021 Research Handbook on Law and Marxism.[12]
Neither Kant nor Hegel investigated the “legal form”.
However, in 1977 the Chicago professor Isaac Balbus published “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law”[13]. He argued that “the logic of the legal form and the logic commodity form are one and the same.”:
,,, the relative autonomy of the legal form from the will of social actors entails at the same time an essential identity or homology between the legal form and the very “cell” of capitalist society, the commodity form.
The legal form … defines distinctions of interest and origin out of political existence, just as the commodity form defines distinctions of use and labor out of economic existence. And, just as the commodity form “replaces” use-value and concrete labor with the abstractions of exchange-value and undifferentiated labor-power, the legal form “replaces” the multiplicity of concrete needs and interests with the abstractions of “will” and “rights,” and the socially differentiated individual with the abstraction of the juridical subject or the legal person
And in a footnote
…Only after “working out” the homology between the commodity form and the legal form did I discover that Pashukanis had developed essentially the same analysis roughly fifty years ago! Almost all subsequent Marxist work on the law is, unfortunately, a regression from the standard established by Pashukanis’s pioneering efforts.
But analysis of the “legal form” is not only to be found in the scholarship inspired by Pashukanis’s appearance in English. In 2005 the Cornell scholar Robert B. Summers published “On Giving Legal Form Its Due. A Study in Legal Theory”[14] – without mentioning Pashukanis, let alone Marx. His position?
Here, I use the word “form” to mean the purposive systematic arrangement of the parts and the whole of a legal phenomenon. I use the phrase “legal phenomenon” to mean any type or sub-type of functional legal unit in a system of law, including an institution such as a legislature or court, a species of law such as a rule, principle, contract or property interest, a methodology such as one for the interpretation of statutes or for the application of case law, and a sanction or a remedy such as imprisonment, or money damages…
Few legal theorists have taken interest in developing a general theory that gives legal form its due in a frontal and systematic fashion. Such a theory must, among other things, differentiate types of legal phenomena, and must differentiate between the formal and the non-formal in legal phenomena.[15]
His main source was the German realist scholar Rudolf von Jhering, who had a profound influence on the American Legal Realist School, especially Karl Llewellyn (1893- 962), and thus on American Critical Legal Studies.[16] Duncan Kennedy, in an article on Lon Fuller, published in 2000 in the Columbia Law Review[17], 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, wrote, in a footnote
“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.”
So there is discussion concerning “legal form” without reference to Pashukanis.
However, as I show below, Pashukanis referred several times to Von Jhering.
Natural Laws and Human Laws: Marx on Natural Laws
This section draws on my contribution to the Research Handbook on Political Economy and Law.[18]
Marx referred many times to ‘the law of value’, and as has been pointed out, practically never to a ‘labour theory of value’. What kind of a law is the ‘law of value’? In Volume 3 of Capital Marx wrote explicitly that:
Since these latter [individual capitalists] confront one another only as commodity-owners, and everyone seeks to sell his commodity as dearly as possible (apparently even guided in the regulation of production itself solely by his own free will), the inner law enforces itself only through their competition, their mutual pressure upon each other, whereby the deviations are mutually cancelled. Only as an inner law, vis-à-vis the individual agents, as a blind law of Nature, does the law of value exert its influence here and maintain the social equilibrium of production against its accidental fluctuations.[19]
That is, for Marx the law of value is an ‘inner law’, a law of nature. Individual capitalists believe that they are acting of their own free will, but in reality their activity is subject to the Law of Value, as inexorable and impossible to avoid as the law of gravity or the laws of motion. The Law of Value expresses the innermost laws of motion of Capital, as what is new and unprecedented in human history. This is one of the points at which Marx demonstrates his debt to Spinoza. Yirmiyahu Yovel, in his Spinoza and Other Heretics,[20] asserted that
Marx used Spinoza’s thought far more than he admitted. Spinoza was above all a counterbalance and corrective to Hegel, restoring the concept of nature and man as a concrete, natural being from what seemed to Marx his immersion in the lofty and semireligious heights of the Hegelian Geist… Marx’s new philosophy of immanence, though strongly influenced by Hegel and his milieu, goes back to Spinoza in more ways than one. Indeed, Spinoza is almost always present in Marx’s thought. But, we may add, the actual presence of Spinoza in Marx far surpasses his direct mention by name.
Indeed, one of the passages Marx transcribed from Spinoza in 1841, from Chapter IV of the Theological-Political Treatise (TTP), ‘Of the Divine Law’,was as follows:
The word law (lex) in an absolute sense signifies that, in accordance with which, each individual thing, or all things, or all things of the same kind, behave in one and the same fixed and determinate way, depending upon either [vel] natural necessity or [vel] a human decision.[21]
This paragraph continues (though the continuation was not transcribed by Marx) and explains the first sentence:
A law that depends upon natural necessity is one that necessarily follows from the very nature or definition of a thing. A law that depends on a human decision, which is more properly called a decree (jus), is one that men prescribe to themselves and to others in order to achieve a better and safer life, or for other reasons.
Does this mean that a law of nature, an expression of natural necessity, is equivalent, for Spinoza, to a human decree? Not at all. Marx next transcribed the following passage, two paragraphs lower on the page:
Firstly, in so far as man is a part of nature, he is also part of nature’s power. Hence whatever follows from the necessity of human nature (that is, from nature itself in so far as we understand it to be expressly determined by human nature) results also, albeit necessarily, from the capacity of men. Hence the decreeing of these laws may quite correctly be said to follow from human will, because this depends especially on the power of the human mind in the sense that our mind, so far as it perceives what is true or false, can very clearly be conceived without those decrees, but not without the necessary law of nature as we have just defined it.[22]
That is, a human decree, and the enforcement of it, are themselves the expression of the power of nature, and subject to the same iron necessity as everything else in nature. In pronouncing a decree and enforcing it, humans may believe that they are acting of their own free will, but in fact are, as humans, expressing determined and inevitable natural forces.
In Spinoza’s Revolution in Natural Law, Andre Santos Campos[23] explains that
The fact remains that natural laws for Spinoza are neither mere descriptions of what a thing is in itself nor propositional inferences referring to a priori given data. They are mostly that which is so distinctive to each individual thing that it allows the thing to posit itself as a real individual being.[24]
Campos continues that
The laws of nature of each individual thing are hence the inscription of a thing’s essence and of everything that follows from it because the thing is. They are the inscription of the thing’s power – and that is the very nature of law (jus), that is, the thing’s natural ‘right-law’.[25]
Thus Spinoza’s (and, I argue, Marx’s) laws of nature are not explained by any kind of normatively moral natural law theory, but rather a necessitarian deterministic natural law theory. Moreover, these laws cannot be confused with the laws of natural science, which are descriptive of actions and experiences. Campos explains that Spinoza’s laws are inscriptive rather than descriptive.
… inscriptive natural laws are the intrinsically original characteristics that an individual has – and the actions he performs as a follow-up to those characteristics – in order to express self-productive immanent Nature.[26]
The Law of Value for Marx had, I propose, precisely these characteristics of a Spinozan natural law. It is possible to trace the development but also the consistency of Marx’s understanding of the operation of this Law over the years. In 1859 in the Critique of Political Economy Marx wrote:
David Ricardo, unlike Adam Smith, neatly sets forth the determination of the value of commodities by labour-time, and demonstrates that this law governs even those bourgeois relations of production which apparently contradict it most decisively. Ricardo’s investigations are concerned exclusively with the magnitude of value, and regarding this he is at least aware that the operation of the law depends on definite historical pre-conditions. He says that the determination of value by labour-time applies to “such commodities only as can be increased in quantity by the exertion of human industry, and on the production of which competition operates without restraint.”[27]
This in fact means that the full development of the law of value presupposes a society in which large-scale industrial production and free competition obtain, in other words modern bourgeois society. For the rest, the bourgeois form of labour is regarded by Ricardo as the eternal natural form of social labour.[28]
Thus, the Law of Value, which finds expression in the whole of human recorded history most certainly since the agricultural revolution 10,000 years ago, only finds its full development under the rule of Capital. In his 1867 Preface to the first German edition of Capital Volume I, Marx wrote of the ‘value-form, whose fully developed shape is the money-form’. He also wrote of the ‘natural laws of capitalist production… these tendencies working with iron necessity towards inevitable results.’[29] In 1867, in Chapter 1 of Capital, ‘The Commodity’, Marx wrote that
The general value-form, in which all the products of labour are presented as mere congealed quantities of undifferentiated human labour, shows by its very structure that it is the social expression of the world of commodities. In this way it is made plain that within this world the general human character of labour forms its specific social character.[30]… in the midst of the accidental and ever-fluctuating exchange relations between the products, the labour-time socially necessary to produce them asserts itself as a regulative law of nature.[31]
In Chapter 11 of Capital, ‘The Rate and Mass of Surplus-Value’, Marx refers to three laws, all of which are necessary consequences of the Law of Value. First, there is the law that ‘… the supply of labour exploitable by capital is independent of the supply of workers’, to which he added in a foot note
This elementary law appears to be unknown to the vulgar economist, who imagines, like an inverted Archimedes, that in the determination of the market price of labour by supply and demand he has found the fulcrum by means of which he cannot so much move the world, as bring it to a standstill.[32]
The second law is,
The absolute limit of the average working day – this being by nature always less than 24 hours – sets an absolute limit to the compensation for a reduction of variable capital by a higher rate of surplus-value, or for the decrease of the number of workers exploited by a higher degree of exploitation of labour-power.[33]
The third law is as follows:
… the masses of value and of surplus-value produced by different capitals – the value of labour-power being given and its degree of exploitation being equal – vary directly as the amounts of the variable components of these capitals, i.e. the parts which have been turned into living labour-power.[34]
Marx continues that
This law clearly contradicts all experience based on immediate appearances…. Classical economics holds instinctively to this law, although it has never formulated it, because it is a necessary consequence of the law of value.[35]
I repeat that this Law, which is at the heart of the operation of Capital, is a thoroughly Spinozist law, the result of which is that humans, believing that they are acting of their own free will, are in fact expressing a determinate necessity.
Marx on Human Laws
Marx had very little to say about law constructed by humans as such.[36] His attitude to (man-made) law remained consistent throughout his life. In the 1857 Introduction to the Grundrisse, he wrote:
Quite apart from this crude tearing-apart of production and distribution and of their real relationship, it must be apparent from the outset that, no matter how differently distribution may have been arranged in different stages of social development, it must be possible here also, just as with production, to single out common characteristics, and just as possible to confound or to extinguish all historic differences under general human laws. For example, the slave, the serf and the wage labourer all receive a quantity of food which makes it possible for them to exist as slaves, as serfs, as wage labourers. The conqueror who lives from tribute, or the official who lives from taxes… all receive a quota of social production, which is determined by other laws than that of the slave’s, etc.
The two main points which all economists cite under this rubric are: (1) property; (2) its protection by courts, police, etc. To this a very short answer may be given:
…
to 2. Protection of acquisitions etc. When these trivialities are reduced to their real content, they tell more than their preachers know. Namely that every form of production creates its own legal relations, form of government, etc… All the bourgeois economists are aware of is that production can be carried on better under the modern police than e.g. on the principle of might makes right. They forget only that this principle is also a legal relation, and that the right of the stronger prevails in their ‘constitutional republics’ as well, only in another form.[37]
In the Preface to his A Contribution to the Critique of Political Economy (Zur Kritik der Politischen Oekonomie), published in Berlin in 1859, the text in which his ideas concerning Capital achieved their explicit shape, Marx wrote;
My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel, following the example of English and French thinkers of the eighteenth century, embraces within the term “civil society”; that the anatomy of this civil society, however, has to be sought in political economy.[38]
Much later, in his 1875 Critique of the Gotha Programme, Marx elaborated on this, writing:
Do not the bourgeois assert that the present-day distribution is “fair”? And is it not, in fact, the only “fair” distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions, or do not, on the contrary, legal relations arise out of economic ones? Have not also the socialist sectarians the most varied notions about “fair” distribution?[39]
Are ”Socialist Law” or “Socialist Legal Theory” desirable or even possible?
In their 1887 polemic Juridical Socialism[40] (the German title, Juristen-Socialismus, would be better translated as “Lawyers’ Socialism”) Friedrich Engels and Karl Kautsky[41] explained – and Marx, who died four years earlier, 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.”[42]
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.[43]”
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.”
Peter Schöttler explained their position 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.”[44]
In precisely the same sense, Marx and Engels would have had no difficulty in associating themselves with 20th and 21st century demands framed within the international law right of peoples to self-determination[45].
Chapter 10 of Volume 1 of Capital was devoted to “The Working Day”.[46] Three of its 7 sections start with the phrase “the Struggle for a Normal Working Day”. Marx is clear that
… these highly detailed specifications [in the additional Factory Act of 7 June 1844] , which regulate, with military uniformity, the times, the limits and the pauses of work by the stroke of the clock, were by no means a product of the fantasy of Members of parliament. They developed gradually out of circumstances as natural laws of the modern mode of production. Their formulation, official recognition and proclamation by the state were the result of a long class struggle.[47]
The Chapter concludes as follows:
For ‘protection’ against the serpent of their agonies, the workers have to put their heads together and, as a class, compel the passing of a law, and all-powerful social barrier by which they can be prevented from setting themselves and their families into slavery and death by voluntary contract with capital. In the pace of the pompous catalogue of the ‘inalienable rights of man’ there steps the modest Magna Carta of the legally limited working day, which at last makes it clear ‘when the time which the worker sells is ended , and when his own begins. Quantum mutatus ab illo![48]
Marx is not writing about “legal form”, but about the class struggle, in which workers take up legal demands.
Law and legislation reappear in Part Eight, “So-Called Primitive Accumulation”, Chapter 27 “The Expropriation of the Agricultural Population from the Land” .[49] Marx describes how between the fifteenth and the sixteenth centuries, “the English working class was precipitated without any transitional stages from it golden age to its iron age.”[50]
And after the restoration of the monarchy in 1660
…the landed proprietors carried out, by legal means, and act of usurpation which was effected everywhere on the Continent without any legal formality. They abolished the feudal tenure of land, i.e. they got rid of all its obligations to the state, ‘indemnified’ the state by imposing taxes on the peasantry and the rest of the people, established for themselves the rights of modern private property in estates to which they had only a feudal title, and finally, passed those laws of settlement which had the same effect on the English labourer, mutatis mutandis, as the edict of the Tartar Boris Godunov had on the Russian peasantry.[51]
So, Marx explains, “the legal form” is what distinguishes the English usurpation of the peasantry which elsewhere was carried out without such niceties, by force.
What did Pashukanis want to achieve? His intellectual history.
Pashukanis was born in 1891. In 1909 he started to study law in Petersburg, but left Russia for Germany in 1910. He continued his studies at the Ludwig-Maximilians-Universität in Munich, where he specialized in the contemporary philosophy of law, and in political economy. His doctoral dissertation was entitled Statistik der Gesetzwidrigkeit im Arbeitsschutz (Statistics of legal infractions in labour protection). This was not at all, therefore, a work of legal theory, but an indication of his interest in the workers’ movement in Germany.[52] During World War I, he returned to Russia.
In October 1917, following the Bolshevik seizure of power, Pashukanis worked in the Sushchevsko-Mariynskiy Military Revolutionary Committee in Moscow, and was later elected a member of the Cassation (Appeal) Tribunal attached to the All-Russian Central Executive Committee (VTsIK)[53], acting as a revolutionary judge.[54]
From 1920 to 1923 Pashukanis served in the Peoples’ Commissariat for Foreign Affairs as the deputy head of the Economic Law Department. As a legal adviser, he was involved in one of first and most important actions of the young Soviet Union in the field of international law. During this time he worked in the Soviet Russian representation in Berlin, where in due course he took part in the preparation of the Rappalo Treaty with Germany.[55]
It may well be that Pashukanis’s experience as a responsible working diplomatic legal expert, engaged in international negotiation at the highest level, informed his later writing to a much greater extent than did his German-centred theoretical scholarship.
However, as he disclosed rather later, in 1930, it was while in the Berlin in 1921-22, that Pashukanis prepared his General Theory, which was completed in 1923 and was published in 1924. He also published his first scholarly article in 1921.
The Selected Works of Pashukanis published in Russia in 1980[56] has a Bibliography[57] of the “Fundamental Works of Pashukanis”; but one work is missing. This was Pashukanis’ first published article, which appeared in 1921, and was entitled “Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)”.[58] It appeared in the literary journal Krasnaya Nov (Red Virgin Soil), which was the first Soviet literary “thick” journal, and was published between 1921 and 1941. From 1921 to 1927 it was edited by Aleksandr Voronkov (1884-1937), who was close to Trotsky, agreed with Trotsky’s 1923 Literature and Revolution, did much to encourage new literary talent, and in 1937 was executed for Trotskyism.
The subject of the article was the scholarship of Professor Maurice Hauriou of the University of Toulouse (1856-1929)[59], whose textbook on Principles of Public Law was published in 1910. Pashukanis did not refer in his 4,000 word article to any other literature. Not least in this regard, the article contrasts strongly with the General Theory, which has many references, including several to German authors. He referred to Marx, but without indicating his source. Most of the article consisted of often sarcastic references to Hauriou’s positivist doctrine. Pashukanis’ concluding paragraph was as follows.[60]
In one of his speeches Cde Lenin remarked that sincere defenders of capitalism may now be found only among our SRs (Social Revolutionaries) and Mensheviks. In the West they have become extinct. We can see the cause of this. Russia underwent an accelerated course of capitalism and therefore our intelligentsia may bona fide come out in defence of the sublime beginning of democracy and freedom, without sensing that it has been crucified by capitalism. But in order to be a sincere defender of capitalism in the West, where social relations have been able to mature and over-mature, one must sincerely, like Hauriou, assert that the principles of freedom, democracy, individual rights and so on, conceal behind themselves quite simply faire valoir de la propriété![61] And such courage is not given to everyone.
There is in fact a connection between Pashukanis’s sole publication before the General Theory, his 1921 article, and the 1924 General Theory itself, although Pashukanis did not refer directly to his earlier work. In fact, Maurice Hauriou was cited three times[62] in the General Theory, but this time with approbation and the epithet “astute” as in “one of the most astute bourgeois theorists”[63] and “an astute jurist like Hauriou”.[64] And there were many references to the German legal scholars whom Pashukanis read in Munich and during his time in Berlin.
However, Pashukanis’ paramount reason for writing the General Theory was not to renew or explain his relationship with Hauriou, but to identify “…law in its general definition, law as a form…”.[65] That is, to tackle the question of the nature of law as a materially grounded abstraction. Pashukanis is now best known for his “commodity-form” theory of law, more recently extended to a “commodity-form theory of international law”.[66]
In the first of several recantations of his work in 1921, published in 1930, Pashukanis wrote the following about the genesis of the General Theory:
It is clear that much which was written in the first years of NEP[67] deserves criticism and suffers from obvious anachronisms and now and then simply mistakes… But the question is not only that of particular formulations. The question concerns some defects of a general character. This was the overestimation of the role and significance of market relations which was without doubt characteristic of my first work. It is impermissible to hide from view the fact that this book was written at a time when the collective of Marxist legal scholars had not come together. It was written when I was alone, and it could not be exposed to the process of critical re-working. It was written finally, before the publication of Lenin’s notebooks on dialectics and on the works of Marx which were published in the “Archive”. It appeared before the discussions with the “mechanists”, before the discussions in the fields of political economy, literature etc. Therefore it was completely natural, that the book, which was written in 1923, and prepared still earlier in 1920-1921, displays defects, when we look at it from our higher present day theoretical and methodological point of view.[68]
This concerned Pashukanis’ theoretical work from 1920 to 1923.
Pashukanis became in the next ten years a staunch loyalist of the regime – in my opinion, by conviction rather than any sort of pressure.
In 1931, following the dramatic recantation of his previous views noted above, Pashukanis became the Director of the Institute of Soviet Construction and Law of the Communist Academy. He was effectively the USSR’s director of legal research and legal education. The American scholar John Hazard[69], who studied under Pashukanis from 1934 to 1937, summarised his effect on legal education, as follows:[70]
Believing that the state was slowly withering away as socialism came nearer to achievement, Pashukanis advocated the cessation of courses in civil law. He understood civil law to be the regulation of the relations of men under the trading conditions of capitalism, and, as such, no longer of importance, as the remnants of capitalism disappeared.
His influence was so marked that the courses in civil law in the law school were abolished, and to replace them there appeared a course called economic-administrative law, concerning itself with regulation of the relations between state enterprises.[71]
Following Pashukanis’ fall in 1937, courses on (Soviet) civil law were reintroduced to the syllabus.
By 1932, Pashukanis, who had become editor in chief of the official law journal Soviet State, was able to write a “hallelujah” in response to Stalin’s letter “Some questions on the history of Bolshevism”.[72] Pashukanis’ major work on international law, Essays in International Law, appeared in 1935[73].
On 16 November 1936 Pashukanis reached the high point of his career: the Presidium of the Central Executive Committee of the USSR appointed him Deputy Peoples Commissar for Justice of the USSR. In the same year he was deputy chairman of the Drafting Committee for the 1936 “Stalin Constitution”[74], and the Institute of State and Law proposed him as a candidate for membership of the Academy of Science of the USSR. Also in 1936 he became the chairman of the Academic Council attached to the Peoples Commissariat of Justice of the USSR.
But within a year he was dead, following Pravda’s announcement on 20 January 1937 that he had been found to be an enemy of the people – just two months after he had been named by the regime to supervise the revision of the whole system of Soviet codes of law. On the same day he was arrested. On 4 September 1937 a Military Collegium sentenced him to death. He was condemned as a member of a ‘band of wreckers’ and “Trotsky-Bukharin fascist agents”. He was posthumously rehabilitated in 1956.
What did Pashukanis want to achieve? The General Theory
As noted above, Pashukanis wrote his General Theory while working as the Soviet government legal adviser in Berlin, in 1921-2.
It is clear to me that he wished to prove that with the proletarian revolution law would cease to exist, and would be replaced by technical administration. That was why he worked out in detail his thesis that developed capitalism required and generated a “legal form”, unique to developed capitalism. While he did not specify a homology between the “commodity form” and the “legal form”, as advocated by Balbus, his conception of the “legal form” was noy a possibility before Marx’s work in the 18th century.
Furthermore, as Pashukanis himself made clear, he was working in Berlin until 1923, and was not familiar with the theoretical debates and developments within Bolshevism. For this reason, very little Soviet Russian scholarship is cited in the General Theory.
Instead, even in the 3rd Edition, published in 1929, there are voluminous footnotes, most of which do not appear in the Einhorn (from a German translation) or the Maggs translations into English. Indeed, the great majority of citations are to German scholars, no fewer than 19 footnotes, mostly to German language sources, mostly from the late 19th and early 20th century[75], many of them textbooks, the most recent reference being to Kelsen’s 1922 Der soziologische und der juristische Staatsbegriff (The sociological and legal concept of the state).[76]
The English language reception of Pashukanis in the 1970s and 80s was therefore based on incomplete translations.
Pashukanis’s tragedy was that in 1921, while he was still in Berlin, Lenin, conscious of the impossibility of constructing socialism in one country in one beleaguered country, launched the New Economic Policy (NEP), which required laws, in particular civil laws, and courts. Pashukanis maintained his position as to the necessary disappearance of law, the “legal form” of developed capitalism, for as long as he could. Stalin brought the NEP to an end with his Great Break, a few years after Lenin’s death on 21 January 1924. The new Soviet system of Socialism in One Country required more law than ever before. In his 2014 masterpiece Law and the Making of the Soviet World. The Red Demiurge [77] Scott Newton argued that the Soviet order was a work of law. He drew on Russian-language Soviet statues and regulations, jurisprudence, legal theory, and English-language ‘legal Kremlinology’. On this basis he analysed the central significance of law in the design and operation of Soviet economic, political, and social institutions. He therefore concluded that the USSR was an exemplary, rather than aberrant, case of the uses to which law was put in twentieth-century industrialised societies. No wonder Pashukanis was shot, despite his best efforts at conforming to Stalin’s regime. The continuing relevance of his work in 1921-22 is that it is the only thoroughly serious attempt to formulate a socialist theory of the law, or the “legal form”, despite Marx and Engels having insisted that no such thing was possible or desirable..
[1] Slavoj Žižek, Sex and the Failed Absolute, Bloomsbury, 2020, p. 212
[2] Peter Cercel “One Hundred Years of Solitude and the Eternal Recurrence of the Legal Form”, review of Cosmin Cercel: Towards A Jurisprudence of State Communism – Law and the Failure of Revolution. (London: Routledge, 2019), Vol 13, No 1 (2023): The Lawyer Quarterly. 96-104, at
https://tlq.ilaw.cas.cz/index.php/tlq/article/viewFile/544/544
[3] Giorgio Agamben Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998)
[4] London, Ink Links, 1978; Pluto Press 1989
[5] Third edition, 1929 Пашуканис Е. Б. Общая теория права и марксизм. Издание 3-е. — М.: Изд-во Коммунистической Академии, 1929 (Communist Academy Publisher), in Russian at https://kritikaprava.org/library/31/obschaya_teoriya_prava_i_marksizm
[6] Pashukanis: Selected Writings on Marxism and Law by Piers Beirne, Robert Sharlet, Peter B. Maggs, Academic Press, London, 1980.
[7] Obshchaia teoriia prava i marksizm: Opyt kritiki osnovnykh iuridicheskikh poniatii (1924), sotsiahsticheskoi akademii, Moscow, 1st edition. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.32-131. Translated by Peter B. Maggs. At https://www.marxists.org/archive/pashukanis/1924/law/index.htm
[8] The complete footnotes to the General Theory have been translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.
[9] British Journal of Law and Society. Vol. 7, No. 2 (Winter, 1980), pp. 317-321
[10] “Pashukanis and the commodity form theory” (1981) 9 International Journal of the Sociology of Law, 1-22
[11] “Pashukanis and the ‘Commodity Form Theory’: A Reply to Warrington”, (1982) 10 International Journal of the Sociology of Law 419-437
[12] Matthew Dimick “Pashukanis’ commodity-form theory of law” in Research Handbook on Law and Marxism
Paul O’Connell and Umut Özsu (eds) Edward Elgar 2021, 115-138
[13] Isaac D. Balbus “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law” Law & Society Review , Winter, 1977, Vol. 11, No. 3 (Winter, 1977), pp. 571-588
[14] Ratio Juris. Vol. 18 No. 2 June 2005, 129–143
[15] Ibid, pages 129-130
[16] Jhering, Rudolf, von. (1915/1997) 1933. Geist des Römischen Rechts: Auf den Verschiedenen Stufen
Seiner Entwicklung. (The Spirit of Roman Law: At the Different Stages of its Development) Aalen: Scientia. Jhering is best known in English for The Struggle for Law, trans Lalor, J. J.. Union, NJ: Lawbook Exchange reprint, and see Roger Cotterrell “The struggle for law: some dilemmas of cultural legality”, (2008). International Journal of Law in Context, 4(4), 373-384.n and Bill Bowring “The reception or the lack of it, of the concepts of Rudolf von Jhering in the English speaking world”, at https://bbowring.com/2021/03/20/the-reception-or-the-lack-of-it-of-the-concepts-of-rudolf-von-jhering-in-the-english-speaking-world/
[17] Duncan Kennedy “From the Will Theory to the Principle of Private Autonomy: Lon Fuller’s “Consideration and Form”” (2000) 100(1) Columbia Law Review 94
[18] Bill Bowring “The law of value and the law” in Ugo Mattei and John Haskell (eds) Research Handbook on Political Economy and Law (Cheltenham: Edward Elgar, 2015), 158-176
[19] Karl Marx, Capital: A Critique of Political Economy (first published 1867, Lawrence & Wishart 1984) 880
[20] Yirmiyahu Yovel, Spinoza and other Heretics: The adventures of Immanence, vol 2 (Princeton UP 1992) 78-103, 78-79
[21] Karl Marx and Friedrich Engels, Marx-Engels Gesamtausgabe MEGA IV I (Dietz Verlag, 1976) 248; Benedict de Spinoza, Theological-Political Treatise (Michael Silverthorne tr, Jonathan Israel ed, CUP 2007) 57
[22] cf Marx and Engels (n 56) 248; Spinoza (n 56) 57.
[23] Andre Santos Campos, Spinoza’s Revolution in Natural Law ( Palgrave MacMillan 2012)
[24]ibid.
[25] ibid 75.
[26] ibid.
[27] David Ricardo, On the Principles of Political Economy, and Taxation (3rd edn, John Murray 1821) 3
[28] Karl Marx, ‘Historical Notes on the Analysis of Commodities’ (Marx Engels Archive) available < https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/ch01a.htm> accessed 1 January 2015
[29] Karl Marx, ‘1867 Preface to the first German edition’ in Capital Vol. I (Marxist Archive) available at <http://www.marxists.org/archive/marx/works/1867-c1/p1.htm> accessed on 1 January 2015
[30] Karl Marx, Capital:A Critic of Political Economy, vol 1 (Ben Fowkes tr, Penguin Books 1976) 160.
[31] Marx (n 65) 168.
[32] ibid 419.
[33] ibid 420.
[34] ibid.
[35] ibid.
[36] For a characteristic Soviet presentation of Marx’s ‘theory of law’ see L S Mamut, ‘Theory of Law’ Sovetskoye Gosudarstvo i Pravo (1967) in Csaba Varga (ed) Marxian Legal Theory (New York UP 1993) 3-10.
[37] Karl Marx, Grundrisse (first publish 1800, Martin Nicolaus ed, Penguin Books 1993) 87-88
[38] Karl Marx, ‘Preface to the Critique of Political Economy’ in (n 37) 262.
[39] Karl Marx, ‘Critique of the Gotha Programme’ The Marxist Archive available at <http://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm > accessed 29 October 2013.
[40] Friedrich Engels and Karl Kautsky Juridical Socialism 7:2 (1977) Politics and Society pp.203-220; “Juristen-Socialismus” Die Neue Zeit, 1887, no.2 (Stuttgart), translated by Piers Byrne
[41] The translator, Piers Byrne, explained that this was one of a series of articles confronting reformist tendencies in German Social Democracy, in this case the legalistic demands for social reform made by the Austrian jurist Anton Menger. The original manuscript was prepares by Engels in October 1886, but when he became ill he suggested that the article be completed by the editor of Die Neue Zeit, Karl Kautsky. See Piers Beirne, “Introduction to ‘Juridical Socialism’” 7:2 (1977) Politics & Society 199-201
[42] Ibid p.204
[43] Ibid p.212
[44] Peter Schöttler “Friedrich Engels and Karl Kautsky as Critics of “Legal Socialism” in Csaba Varga (ed) Marxian Legal Theory (New York: New York University Press, 1993), pp.11-42, at p.28-29
[45] See also Bill Bowring “The Soviets and the Right to Self-Determination of the Colonized: Contradictions of Soviet Diplomacy and Foreign Policy in the Era of Decolonization” in Jochen von Bernstorff and Philipp Dann (eds) The Battle for International Law: South-North Perspectives on the Decolonization Era (Oxford University Press 2019), pp.404-425; Bill Bowring “Marx, Engels, and Lenin on the Right of Nations (Peoples) to Self-Determination, and Its Impact on International Law” in Paul O’Connell and Umut Özsu (eds) Elgar Handbook on Law and Marxism (Edward Elgar, 2021); and Bil Bowring “Marxist international law methodology?” in Rossana Deplano and Nicholas Tsagourias (eds) Research Methods in International Law A Handbook (Edward Elgar, 2021), pp.162-180
[46] Karl Marx Chapter 10 in Capital. A Critique of Political Economy. Voume 1 Translated by Ben Fowkes. 1990, Penguin Classics, pages 340-416.
[47] Ibid p.394-395
[48] Ibid p.416
[49] Ibid p.877
[50] Ibid p.879
[51] Ibid p. 883-884. The reference is to the Edict of 1597, by which peasants who had fled from their lords could be pursued for five years and forcibly returned to them when caught.
[52] Andreas Diers ‘Opfer des ‘Grossen Terrors’: Eine biographische werknotiz zum 75. Todestag von Eugen Paschukanis’ (Victim of the ‘Great Terror’: a biographical note for the 75th anniversary of the death of Yevgeny Pasukanis), 3 September 2012, at
https://www.rosalux.de/fileadmin/rls_uploads/pdfs/sonst_publikationen/Paschukanis_Sept_2012.pdf; see also Andreas Harms Warenform und Rechtsform. Zur Rechtstheorie von Eugen Paschukanis (Commodity form and legal form. On the legal theory of Yevgeny Pashukanis) Freiburg: ça ira Verlag, Neuauflage 2009
[53] These courts were established by the Decree of November 22 (December 5) 1917 “On the Court”: Decree of the Council of People’s Commissars SU 1917-1918, No.4, item 50. English translation in Zigurds L. Zile (ed) Ideas and Forces in Soviet Legal History: A Reader on the Soviet State and Law (Oxford: Oxford University Press, 1992), 95-96
[54] Yevgeniy Pashukanis (1922) “Pervye mesiatsy sushchestvovanii moskovskogo narodnogo suda (The First Months of the Existence of the Moscow People’s Court)” 1922 Nos 44-45 Yezhenedelnik Sovetskoi Iustitsii (Soviet Justice Weekly)15-16; see also Pyotr Stuchka (1918) “Stariy i noviy sud (The Old and New Court)”, English translation at Zile Ibid, 96-98
[55] This section draws from Bill Bowring “Yevgeniy Pashukanis, His Law and Marxism: A General Theory, and the 1922 Treaty of Rapallo between Soviet Russia and Germany” v.19 (2017) Journal of the History of International Law pp.274-295
[56] Yevgeniy Pashukanis Izbranniye proizvedeniya po obshei teorii prava i gosudarstvo (Selected works on the general theory of law and state) (Moscow: “Nauka” Publisher, 1980) – Academy of Science, Institute of State and Law
[57] Ibid, 261-267
[58] Yevgeniy Pashukanis ‘Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)’ 3 (1921) Krasnaya Nov (Red Virgin Soil) 223-232, available at http://www.ruthenia.ru/sovlit/j/106.html
[59] For biography see http://www.universalis.fr/encyclopedie/maurice-hauriou/ He was a positivist, influenced by Aquinas, Comte and Bergson.
[60] Pashukanis Bourgeois Jurist 1921 (n.44), 231-232
[61] Enforce property!
[62] Pashukanis General Theory 1983 (n.1), 122, 123, 134
[63] Ibid 123
[64] Ibid 134
[65] Ibid, 68
[66] For a recent exposition and defence of this theory, see China Miéville ‘The Commodity-Form Theory of International Law: An Introduction”’ 17(2) (2004) Leiden Journal of International Law, 271-302, and China Miéville Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic Publishers, 2005)
[67] The New Economic Policy, a partial restoration of capitalist market relations, under state control, was introduced by Lenin in 1921. Despite Lenin’s death in 1924 the success of the policy meant that it continued until sharply reversed by Stalin in 1928.
[68] Yevgeniy Pashukanis (1930) “Polozheniye na teoreticheskom pravovom fronte (The situation on the theoretical legal front)” 11-12 (1930) Sovetskoye gosudartsvo i revolutsiya prava (Soviet state and revolution of law), 16-49, 26
[69] 1909-1955
[70] John Hazard ‘Housecleaning in Soviet Law’ 1 (1938) American Quarterly on the Soviet Union pp.5-16, at http://www.unz.org/Pub/AmQSovietUnion-1938apr-00005?View=PDF; and John Hazard ‘Cleansing Soviet International Law of Anti-Marxist Theories’ 32(2) (1938) American Journal of International Law, 244-252
[71] Hazard Housecleaning 1938 (n.70) 13
[72] Ye Pashukanis ‘Pismo tov. Stalina i zadachi teoreticheskovo fronta gosudarstvo i pravo (The letter of comrade Stalin and the tasks of the theoretical front of state and law)’ 1 (1932) Sovetskoe gosudarstvo (Soviet State) 4-48, cited in E. A. Skripilev, ‘Nashemy zhurnalu – 70 let” (Our journal is 70 years old)’ no. 2 (1987)Sovetskoye Gosudarstvo i Pravo (Soviet State and Law) 17.
[73] Ye. Pashukanis, Ocherki po Mezhdunarodnomu Pravu (Essays in International Law) (Moscow: Soviet Legislation, 1935)
[74] John Hazard ‘Memories of Pashukanis’, Foreword to Evgeny Pashukanis, Selected Writings on Marxism and Law (London: Academic Press,1980), 273-301 available at
http://www.marxists.org/archive/pashukanis/biog/memoir.htm
[75] Some of the authors concerned are См. Карнер — «Социальные функции права», русск. пер., 1923, стр. 11.; Wundt — «Ethik», S. 1.; Сравн. Simmel — «Einleitung in die Moralwissenschaft».; J. Offner — «Das soziale Rechtsdenken», 1923, стр. 54; A. Ferneck — «Die Rechtswidrigkei», 1903, стр. 11; H. Kelsen — «Der soziologische und der juristische Staatsbegriff», 1922, стр. 96;;Bierling, «Juristische Prinzipienlehr», т. I, стр. 145.; Jellinek, «System der subjektiven öffentlichen Rechte», стр. 13).; Fichte — «Rechtslehre» vom 1812, Leipzig, стр. 10.; О. Gierke — «Geschichte des deutschen Körperschaftsbegriff, Berlin, 1873, стр. 30.; Гирке, цит. соч., стр. 648; Пухта — «Курс римского гражданского права», русск. перев. 1874 г; Гумплович — «Rechtsstaat und Sozialismus»; Гумпловича (см. его Rechtsstaat u. Sozialismus и Geschichte der Staatstheorien); Мэн, «Древнее право». Русск. пер. 1873 г., стр. 40 и 47; Binder «Rechtsnorm und Rechtspflicht», 1912.; Г. С. Мен, Древнее право, перев. Н. Белозерской, 1872., стр. 283. Э. Ферри, Уголовная социология, том II, пер. с пред. Дриля, стр. 37; Иеринг, «Дух римского права», I, стр. 118, русск. перев.’ Г. С. Мен, «Древнее право», 1873 г., стр. 269.; Иеринг — «Дух римского права», I, стр. 259 и след., русск. пер., 1875.; Wilda — «Strafrecht der Germanen», 1842, стр. 219, Спенсер, «Принципы социологии», 1883, стр. 659.; F v. Listz – «Lehrbuch d. deut. Strafrechts», 1905, § 15.; Kraepelin — «Die Abschaffung des Strafmasses. Stuttgart, 1880, стр. 13); Aschaffenburg — «Das Verbrechen und seine Bekämpfung», 1905 г., стр. 200.;
English translation from German. Some German sources were translated into Russian. :
См. Карнер — «Социальные функции права», русск. per., 1923, str. 11th; Wundt — «Ethik», p. 1.; Сравн. Simmel — «Introduction to Moral Science».; J. Offner — «Social legal thinking», 1923, str. 54; A. Ferneck — «Unlawfulness», 1903, str. 11; H. Kelsen — «The sociological and legal concept of the state», 1922, str. 96; Bierling, «Legal Principles Teaching», т. I, str. 145th; Jellinek, «System of Subjective Public Rights», str. 13); Fichte — «Rechtslehre» from 1812, Leipzig, str. 10th; O. Gierke — «History of the German concept of corporate body”, Berlin, 1873, str. 30th; Гирке, цит. соч., стр. 648; Пухта — «Курс римского гражданского права», русск. perev. 1874 g; Гумплович — “The rule of law and socialism”; Гумпловича (см. его rule of law and socialism и history of state theories); Man, «Drevnee Pravo». Русск. per. 1873 g., str. 40 and 47; Binder «Legal norm and legal obligation», 1912.; G. C. Мен, Древнее право, перев. N. Belozerskoye, 1872., str. 283. E. Ферри, Уголовная социология, том II, пер. с пред. Дриля, стр. 37; Иеринг, «Duh rimskogo prava», I, str. 118, russian. перев.’ Г. C. Мен, «Dревнее право», 1873 g., str. 269th; Иеринг — «Дух римского права», I, str. 259 and след., русск. per., 1875.; Wilda — «Criminal law of the Germans», 1842, str. 219, Спенсер, «Principal sociology», 1883, str. 659.; f v Listz – «Textbook d. german Criminal Law», 1905, § 15.; Kraepelin — «The Abolition of Punishment. Stuttgart, 1880, str. 13); Aschaffenburg — «Crime and its fight», 1905 г., стр. 200th;
[76] H. Kelsen — «Der soziologische und der juristische Staatsbegriff», 1922, стр. 96
[77] See https://www.routledge.com/Law-and-the-Making-of-the-Soviet-World-The-Red-Demiurge/Newton/p/book/9781138211247#
Chapter by Bill Bowring to be published in German in the collection of articles “VDJ – Battle over the law Legal-political struggles in 50 years (from the foundation of VDJ in 1972)“, for the 50th Anniversary of VDJ – VDJ is the Haldane Society’s German sister organisation, Vereinigung Demokratischer Juristinnen und Juristen, https://www.vdj.de/vdj/
I have been asked to contribute to this anniversary collection because of my role as President of the European Lawyers for Democracy and Human Rights (ELDH) for many years now. I am a member of the Haldane Society Socialist Lawyers (Haldane) in England, which is, together with VDJ, a founder member in 1993 (with other national associations) of ELDH. I am Haldane’s International Secretary.
I start with an introduction to Haldane and VDJ. Second, I examine the common history of VDJ, Haldane, and ELDH in the International Association of Democratic Lawyers (IADL). Third, I describe my own introduction to International Law, International Human Rights Law, and the International Law of Armed Conflict on a Mission to Israel and Palestine in 1988. My fourth section describes the birth of ELDH, and its continuing relationship with IADL. Fifth, I turn to the way in which, with Thomas Schmidt as General Secretary, has gone from strength to strength since its birth in1993, and now has members in 22 European countries. Finally, and sixth, I present the conferences which are the high point of ELDH activity, and which take place in many countries and focus of the most important topics for European-wide solidarity.
Haldane and VDJ
Haldane, www.haldane.org, has a relatively young (20 and 30 year olds) leadership, and some 600 members, mostly practising lawyers, in England. Haldane was founded in 1930. In 1980, to mark the Society’s 50th anniversary, Nick Blake (who later became a High Court Judge, and is now retired, as Sir Nicholas Blake) and Harry Rajak (Emeritus Professor of Law at the University of Sussex) wrote “Wigs and Workers”, a history of the Society’s first 50 years. The Society was named after Lord Haldane, in 1924 the first Labour Party Lord Chancellor (Minister of Justice), and it was the first organisation of lawyers committed to supporting the interests of the Labour Movement.
VDJ, founded in 1972, is much younger than Haldane. Professor Gerhard Stuby, General Secretary of the International Association of Democratic Lawyers (IADL), of which more below, was the first Chair of VDJ. VDJ has always in fact proclaimed its independence from any political party or national government. Professor Stuby, born in 1934, was the author, with Professor Norman Paech, of the Handbook on International Law and Power Politics,one of the most important texts for international legal solidarity, which went into athird edition. When he died, on 24 August 2020, IADL published on its website an account of his life as an “extraordinary lawyer”.[1]
A common history: the IADL
VDJ and Haldane also share an international and internationalist history.
Haldane was a founder member of IADL, on 24 October 1946. IADL was launched by a gathering in Paris of “lawyers who had survived the war against fascism and had participated in the Nuremberg Trials”. Rene Cassin, a drafter of the Universal Declaration of Human Rights, became IADL’s first President.[2]
IADL was financed by subscriptions from the Association of Soviet Lawyers and the lawyers associations of the Central and Eastern European states, by the National Lawyers Guild USA, and by its members in the Global South, including the Associations of American Jurists (AAJ), the Democratic Lawyers of South Africa (NADEL). And their counterparts in India, Vietnam and Japan. Its Western counterpart, the International Commission of Jurists (ICJ), was in part financed by the CIA. The USSR and the Algerian liberation movement, the FLN, paid for the headquarters of the IADL, a building at 263 Avenue Albert in Brussels, with a salaried member of staff, and continued to pay until the collapse of the USSR in 1991.
Haldane was, as I mentioned above, a founder member of IADL, and, as a new member of Haldane, I attended the 40th anniversary conference of IADL at UNESCO in Paris in December 1986. In that year all countries of the Soviet Block were represented by their official lawyers’ organisation, especially the USSR and the GDR. There were large delegations from India and from the Middle East. I witnessed a noisy clash between the Belgian delegation, which wanted to move away from Cold War rhetoric, and the Arab Lawyers Union, which insisted on the use of the word “imperialism”.
My introduction to international legal solidarity: Israel and Palestine
My first international task for the IADL took place on 27 June to 3 July 1988, when, with the advocate François Bailly, President of the Belgian Democratic Lawyers (now members of ELDH), I undertook a mission to the Occupied Palestinian Territories in the West Bank and the Gaza Strip.[3] The First Intifada (Uprising) of the Palestinian People commenced later that year, on 7 December 1988.
A particular focus of our mission was the closure by Israel of the In’ash Al-Usra womens centre in Al-Bireh, near Ramallah. This charitable Society, with 152 employees, had helped 34,000 people; 1,300 families each week with money, 123 girls 4-16 years old who lived at the Society; 4,800 women and girls who made embroidery by hand; and 150 children cared for in a day-care kindergarten.
The Society’s Centre was raided on 8 June 1988 during curfew hours by Israeli troops, shortly before our arrival in the West Bank. The founder and Director of the Society, Mrs Sameeha Khalil, aged 65, was questioned. On 20 June 1988, again during curfew, at 0100 in the morning, Mrs Khalil, was summoned to the Society’s building, where she was served with an order of closure of all parts of the building except the Day Care Centre and Home, until 16 June 1990. The doors of all the money raising parts of the building, workshops and training rooms, and the kindergarten kitchens were welded shut, as we saw with our own eyes. Mrs Khalil was charged with incitement and sedition. The evidence amounted to: an anti-semitic video tape allegedly found in the Society, of which all knowledge by Mrs Khalil or the Society was denied; a box of Palestinian flags dating from 20 years previously; and Mrs Khalil’s openly expressed support for the PLO.
There were two other particularly memorable moments in our visit.
While visiting the refugee camp in Rafah, at the border of the Gaza strip and Egypt, François Bailly, dressed as always in a three piece suit, with waxed moustaches, and me, were standing with a crowd of people on the ruins of a Palestinian home which had been illegally demolished by Israeli forces, as a reprisal for children throwing stones. Suddenly, the crowd vanished, and François and I saw an Israeli tank coming towards us. Without hesitation, François pulled out his Belgian passport, and shouted “In the name of the King of the Belgians, I command you to stop!”. The tank stopped. The crew must have thought they were hallucinating.
Later, we were visiting Palestinian organisations in Nablus, in the north of the West Bank. We were walking in a crowded street at the top of a hill, surrounded by shoppers, when suddenly we were once more alone. Bullets were flying past us. At the bottom of the hill we saw Israeli soldiers shooting with live rounds towards us (probably not at us). Like everyone else, we dived into a doorway. Later that day, the road back to Jerusalem was blocked, and our driver had to cross farming fields, where at each gate a Palestinian child would tell us if it was safe to proceed.
Not only did our Mission contribute to knowledge of the circumstances leading up to the First Intifada, and build solidarity with organisations such as B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories[4], and Al-Haq, the independent Palestinian non-governmental human rights organisation based in Ramallah, West Bank; established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory[5]: it had a profound affect on me.
The birth of ELDH
When the Berlin Wall fell in 1989, and the USSR collapsed in 1991, both VDJ and Haldane became increasingly discontented with the policy and outlook of the IADL. They were joined by the French Democratic Lawyers, led by Professor Monique Chemillier-Gendreau. VDJ, which had as noted above, been founded as a German affiliate of IADL (Professor Gerhard Stuby being at the same time VDJ’s founding Chair, and also Secretary General of IADL) gradually grew away from IADL, though it never formally left.
As a result the ELDH was founded on 1 May 1993 in Paris. There were also other founding members, notably the Bulgarian, Italian, Romanian, Swiss and Turkish associations. The largest of the associations which founded ELDH in 1993 is the Progressive Lawyers Alliance, ÇHD, in Turkey, founded in 1974.
There was no complete break with the IADL. Intense discussion at the Annual Meeting of the ELDH in Sofia, Bulgaria, led to the following insertion in the Statute of ELDH:
“2.2. The objectives of the Association shall be realized through:
c. The development of relations between European lawyers as well as between lawyers of other continents and their organizations, and the development of relations with the INTERNATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS and other national and international organizations which have as their goal the defense of human rights;”[6]
In fact, Haldane and several other ELDH members continue to be affiliates of the IADL, as well as ELDH. Delegations have attended the Congresses of IADL, held every four years.
The XIV Congress of IADL took place in Capetown, South Africa, in 1996, with Nelson Mandela in attendance. The Haldane delegation of 45 lawyers, organised by Keir Starmer, now Leader of the British Labour Party, was the largest single delegation to a large and representative congress. I wrote a full report for Socialist Lawyer, the Haldane magazine, and it is to be found on the IADL website.[7] The Congress worked in four Commissions. Commission Ill, on “International Interdependence” was chaired by Dr. Bilal Hasan Minto of Pakistan, and heard papers by Prof Nario Tanaka of Japan, by me (on “France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience’), by Jitendra Sharma of India on the NPT, and by others. All the papers delivered at the Congress and more information are to be found in a volume edited by Lennox Hinds, Professor of Law at Rutgers University in the US, and second president of the National Conference of Black Lawyers.[8]
The ELDH, from strength to strength
Meanwhile, ELDH, with Thomas Schmidt (VDJ) and me (Haldane), as members of its leadership, although we are now nearly 30 years older, has gone from strength to strength, with members in 22 European countries. ELDH has more or less active associations in Bulgaria, England, Germany, Greece, Italy, Northern Macedonia, Russia, Serbia, Spain (Basque Country and Catalonia), Switzerland, Turkey, and Ukraine. In a recent constitutional amendment, based on the principle of gender equality, ELDH now has co-Presidents (me and Barbara Spinelli, Italy) and co–General Secretaries, (Thomas Schmidt, Germany, and Ceren Uysal, Turkey). Through the initiative of Thomas Schmidt and Jan Buelens (Belgium), ELDH has created an online network European Lawyers for Workers (ELW).
I am particularly proud of the fact that ELDH now has active members in Russia, in the Centre for Social and Labour Rights, and Lawyers for Workers Rights[9], which works closely with the Russian independent trade unions, KTR (Confederation of Labour of Russia)[10]. Yury Varlamov, a Russian member of ELDH’s Executive Committee has been elected the Chair of the Teachers’ Union “Uchitel”.
The ELDH Executive Committee meets online monthly, and ELDH is actively engaged in solidarity work in Europe and beyond.
A particular focus of ELDH’s work in the past decade has been solidarity with our persecuted and imprisoned colleagues in Turkey, through our large member associations, ÇHD (Progressive Lawyers) and ÖHD (Lawyers for Freedom). ELDH members from several countries have taken part in trial observations and prison visits in Turkey, and have attended conferences and taken part in protests. Thomas Schmidt has led solidarity work with the self-determination struggles of the Sahrawis in Western Sahara. ELDH has increasingly participated in solidarity with Basques and Catalans, investigating the transfer of prisoners in the Basque Country, observing the trials of Catalan politicians, and taking part in solidarity meetings in London and Barcelona. A recent focus at the time of writing has been activity, at the invitation of Sinn Fein, in solidarity on a number of issues relating to Northern Ireland. An ELDH delegation took part in COP26 in Glasgow in 2021 and there is an important commitment to Climate Justice.
The range and depth of ELDH engagement in international solidarity can be shown in recent activity. Interventions in the past year have included the Day of the Endangered Lawyer, in many countries, focusing on 24 January 2022 on Colombia[11]; a conference on 28-29 October 2021 on Labour Rights and the Digital Transition, which ELW helped organise[12]; the first International Fair Trial Day in 2021 and Ebru Timtik Award – she died in a hunger strike in protest against the absence of a fair trial in Turkey[13].
ELDH has published Statements on “Catalangate” on 25 April 2022[14]; on the Western Sahara Crisis, on 9 April 2022[15]; against the banning of the Turkish HDP, on 4 April 2022[16]; on the failure of the United Kingdom to investigate and prosecute murders in Northern Ireland, on 25 March 2022[17]; on the Russian invasion of Ukraine, on 5 March 2022[18]; and many more, at a similar tempo.
ELDH conferences over the years
Until the Covid 19 Pandemic the ELDH Executive Committee, or EXCOMM, has met twice a year each time in a different European city, and attended by comrades and colleagues from all over Europe. These meetings have always included a dinner hosted by ELDH, and often a conference has taken place.
These conferences are the highpoint of ELDH activity.
ELDH’s General Secretary, Thomas Schmidt is a trade union lawyer, active with the German Union Ver Di, and has been instrumental in founding the European Lawyers for Workers (ELW). On 16-17 October 2009 ELDH together with the European Democratic Lawyers (AED/EDL) and the Progress Lawyers of Belgium, organised at the Maison du Barreau in Paris an International Conference “The Evolution of Labour Law in Europe under the Pressure of the (Neo)Liberal Economy”. There was a splendid line-up of authoritative speakers from several European countries.
My own research interest, with many publications, concerns the history of the right of nations, then peoples, to self-determination. The struggle for self-determination started with Marx and Engels in the second half of the 19th century, fighting for the independence of Poland from the Russian Empire, and Ireland from the British Empire. Lenin, in the period leading up to WWI, theorised the right, and after the Russian Revolution, put it into practice with the break-up of the Russian Empire, independence for Finland, Poland and the three Baltic states. He enshrined it in the first constitution of the USSR, with a right of Union Republics to secede, and a federative structure. Lenin’s last struggle with Stalin concerned Lenin’s support for independence for Georgia, even under Menshevik government, opposed by Stalin, denounced by Lenin as a “Great Russian Chauvinist”. All reviled and denounced by the Russian imperialist Vladimir Putin, and exemplified in the colonial war in Chechnya from 1999, the invasion of Georgia in 2008, the annexation of Crimea and support for rebels in the Donbas in 2014, and the murderous invasion of Ukraine in February 2022.
For many years I have been active in solidarity against the continuing repression of Irish nationalism by Britain. Not so many years after Ireland’s bloody war of independence from Britain in 1919 to 1921, there was a return to terrible violence from 1969, with the occupation of Northern Ireland by British troops, and the massacre of Irish civilians by British paratroopers in Bloody Sunday, on 30 January 1972.
With my colleague Professor Colm Campbell I played a key role in the foundation of the Transitional Justice Institute (TJI) at Ulster University, in 2003. After three years hard work TJI together with ELDH organised a splendid conference “Peoples in Motion: Self-Determination and Secession”. This took place on Saturday 5 June 2010 at Ulster University. The speakers included Urko Aiartza Azurtza (Basque Country); Prof. Bill Bowring (London); Prof. Christine Bell (TJI, Ulster); Prof. Colm Campbell (TJI, Ulster); Dr Catriona Drew (SOAS, London); Dr Haluk Gerger (Turkey); Richard Harvey (Barrister, London); Prof. Hassan Jouni (Lebanon); Prof. Hèctor Lopez Bofill (Catalonia); Dr Fabio Marcelli (ISGI, Italy); Prof. Fionnuala Ni Aolain (TJI, Ulster); Dr Ephraim Nimni (QUB, Belfast, a Jewish Anti-Zionist and Pro-Palestinian); Prof. Norman Paech (Germany); and a speaker from Western Sahara. The programme and some of the papers can be found on the ELDH website, as well as a link to an article in the German newspaper Junge Welt.[19]
On the Sunday Professor Campbell organised a Political Tour for Speakers and Delegates. : We were guided up the Falls Road, in a Nationalist district, where Irish Tricolour flags and Palestinian flags fly, and there are rebel murals, by the Republican ex-prisoner group “Coiste na nIarchimi”. Our guide had spent some years in prison for shooting British soldiers during the armed conflict from 1969 to 1998. There is still a high wall separating the nationalist and loyalist districts, but a gate between them is now open, and we were guided down the Loyalist Shankill Road, to see the Shankill Road murals, by a former prisoner of the Loyalist ex-prisoner group “EPIC”. We saw not only Union Jacks and Ulster terrorist flags, but many Israeli flags.
This exciting conference was an important contribution to the ongoing Peace Process in Northern Ireland. This was especially since in the Good Friday Agreement of 1998 the UK Government for the first time explicitly recognised the “Right of the People of the Island of Ireland to Self-Determination”. This means that once there is a majority in Northern Ireland for unifications with the Republic, the UK government will not stand in the way.
Also in 2010, on 12-13 November 2010, ELDH was hosted by our members the Bulgarian Union of Lawyers, for an international conference in Sofia “After the Treaty of Lisbon – European Union Closer to the Citizens?”. We had the support of the Representation of the European Commission in Bulgaria. Among the speakers were: Alexandar Arabadjev (Judge at the European Court of Justice, Luxemburg), my colleague from Birkbeck, Prof. Michelle Everson (she is German, from the Wuppertal), Christo Christev (Bulgaria, Assistant), and Prof. Andreas Fisahn, from Bielefeld, Germany.
On 21 May 2011, ELDH and our Greek colleagues “Alternative Intervention of Athens Lawyers” organised a conference at the Athens Bar Association Conference Hall, in Athens “The Legal Impact of the European “Debt” Crisis. Prof. Dr. Andreas Fisahn again participated. Papers are to be found on the ELDH website.[20]
Also in 2011, we moved from Athens to Genoa in Italy, for “Ten Years of Attacks on Fundamental Rights – The Role of Lawyers”. Speakers included Haidi Giuliani (mother of Carlo Giuliani, killed 10 years previously by the police at the Anti-G8-demonstration in Genoa). There was also a Round Table “The evolution of repression against social movements and the response of lawyers in different countries”, with speakers including Sönke Hilbrans, Berlin (Republikanischer Anwältinnen- und Anwälteverein, RAV).
In February 2012 Haldane, with ELDH and Amnesty International, organised a large conference in London in the Amnesty International Human Rights Action Centre, on “Defending Human Rights Defenders”. The background was that post 9/11 and in an age where States continually seek to control their citizens and curtail any challenge to their authority, the challenges faced by those working on behalf of vulnerable people are escalating. The conference focused on protecting those activists who risk their lives for their commitment to social justice and who often face attacks from the very government who should be protecting them and further their objectives. Six delegations of human rights defenders from some of the most challenging civil societies around the world were invited: Colombia, Palestine, the Philippines, Swaziland, Turkey, and the Caucasus region.
Every year the VDJ awards the Hans Litten Prize, in memory of the heroic anti-Nazi lawyer, who cross-examined Hitler for three hours, and died in Dachau concentration camp in 1938. 15 September 2012, held in the Literaturhaus, Fankfurt (Main), was also the occasion of the 40th anniversary of the VDJ.
The prize was awarded to the fearless English solicitor and human rights activist Gareth Peirce, now 82 years of age and still going strong. She has worked on a number of high-profile cases involving allegations of human rights violations, especially in relation to the armed conflict in northern Ireland. Her work with Gerry Conlon and the “Guildford Four” – wrongly convicted of bombings carried out by the Provisional Irish Republican Army – was chronicled in the film “In the Name of the Father” (1993), in which she was portrayed by Emma Thompson.
In April 2013 I was invited to speak at a big, and unforgettable, conference in Bremen, organised by IALANA with ELDH and VDJ, with many other associations, on “Quo vadis NATO? – Challenges for democracy and law”. German speakers included Otto Jäckel and Prof. Dr. Andreas Fischer-Lescano, and also Dr. Hans-Christof Graf von Sponeck (Müllheim), Prof. Reinhard Merkel (Uni Hamburg), and Prof. Dr. Norman Paech (Universität Hamburg).
For many years I have been a lecturer in the Summer School on “EU and Democracy” organised by the Universities of Bologna, Belgrade, and Johns Hopkins University in the USA, at Herceg Novi in the Gulf of Kotor in Montenegro. My contacts helped to organise a conference in Belgrade at the ”Centre for Cultural Decontamination”, a centre of opposition to Milosevic, on 6 June 2014. The conference was entitled “Human Rights and Democracy in the context of EU Enlargement – Western Balkan Perspectives”, and was organised by ELDH and Lawyers for Democracy, with support from YUCOM, the Lawyers Committee for Human Rights. There were speakers from Bosnia and Herzegovina, Bulgaria, Croatia, England, Germany, Greece, Italy, Macedonia, Montenegro, Serbia, Slovenia, and Turkey.
The reader will have noticed that women’s rights had been somewhat neglected in the ELDH’s conferences, and on 28-29 November 2014 the Haldane Society and Haldane Feminist Lawyers, with ELDH, organised at South Bank University in London a large conference “Women Fighting Back: International and Legal Perspectives”. There were two magnificent keynote speakers, Prof. Rashida Manjoo (South Africa), UN Special Rapporteur on Violence against Women (2009-2015), and Angela Davis (USA), Distinguished Professor Emerita in the History of Consciousness and Feminist Studies Departments at the University of California. Founding member of Critical Resistance. International panel discussions focused on: “Migrant and Refugee Women”; “Violence against Women”; “Women in conflict and peace”; “The State and Women’s Bodies; and Women in work”.
In November 2016 ELDH supported a conference convened by IADL and by the Portuguese Association of Democratic Jurists (PADJ), at the University of Lisbon in Portugal, celebrating the 50th anniversary of the adoption by the General Assembly of the United Nations of the International Covenant on Social. Economic and Cultural Rights and of the International Covenant on Civil and Political Rights, “The International Covenants on Human Rights (ICESCR and ICCPR) adopted by the UN on 16 December 1966: historical significance; political and legal impact; and fortunes”.
The new circumstances in Turkey since the failed coup in 2016, and the State of Emergency declared by President Erdogan, were the background for a continuing series of conferences in solidarity with our Turkish colleagues. On 14-15 January 2017, together with my colleague Pascale Taelman, the President of EDL-AED, I opened the large conference, at which many Bar Associations of Turkey were represented, “The judicial system under the state of emergency in Turkey”.
Sessions focused on “The rights, duties and the repression faced by Bar Associations and their members under State of Emergency”, “Under the State of Emergency: The guarantees for the independence, impartiality of Judges”, “Being a lawyer under the State of Emergency”, “The legislative prerogative under the state of emergency and parliamentary immunity”, and “Practices of Anti-Terror, State of Emergency and State of Siege in Turkey and in the World”. The conference was supported by IADL, by MEDEL, NRV Neue Richtervereinigung (New Judges Organisation), IDHAE World Observatory for Defense Rights and Attacks Against Lawyers, Barcelona Bar Association, Padova Bar Association, and Palermo Bar Association; by the Adana, Adıyaman, Ağrı, Ankara, Antalya, Batman, Bingöl, Bitlis, Diyarbakır, Hakkari, Muş, Siirt, Şanlıurfa, Şırnak, Tunceli, Van, Bursa, Iğdır, Kars-Ardahan, and Mardin Bar Associations; and by Democratic Judges Associations, Syndicat of Judges, Lawyers and Human Rights Defenders Without Borders in Turkey, and the Association of Forensic Science Experts.
ELDH did not forget about workers’ rights. On 12-13 May 2017 the Italian trade union CGIL, together with ELDH and ELW organised a conference in Florence, Italy, on “Social Dumping” in Europe “Sozial-Dumping und aktuelle Herausforderungen für das Arbeitsrecht in Europa – Die Initiative zurückgewinnen!”
Meanwhile, we strengthened our activities in post-coup Turkey.
On 22-24 September 2017 we returned to Turkey to the first of a series of conferences by the second Turkish member of ELDH, ÖHD, Lawyers for Freedom, under the auspices of their International Human Rights Academy of the Aegean (IHRAA), at the beautiful Nesin Maths and Philosophy Village at Şirince, in the mountains near Izmir. The Autumn Workshop of 2017 is one of these activities of the IHRAA. “Academic Freedom” was chosen as the topic of this year. Turkish academics had been faced with all types of oppression during 2017. Most of the speakers of the workshop were among those who lost their positions in the universities and other institutions.
Brexit, the nationalist and xenophobic movement, supported by just over half of those who voted, to take the United Kingdom out of the European Union, which it joined in 1972, has been a seismic shock to the whole continent. Haldane was proud to host with ELDH and the Institute of Employment Rights, on 11 November 2017, at the headquarters of Unite, the second largest trade union in the UK (with 1.4 million members), which also hosted the conference, an international conference “European Union, Brexit – the future of workers’ rights”.
There were four sessions, with speakers from England, France, Germany, Italy, and a trade union lawyer from Russia on a recent victory in the Russian courts, in a case concerning discrimination against Aeroflot cabin crew. The sessions were: 1) “The Future of Trade Union Rights, social rights (collective labour law, for a social Europe instead of a “social pillar”); 2) How to create more security for workers (concepts on national and European level for individual labour law for domestic and migrant workers); 3) How to defend the rights of refugees and migrants. The impact of Brexit and EU policy.; and 4) European Democracy and human rights – between (Br)Exit and the rule of exception (How to develop European Democracy, how to fight non-democratic developments in EU states).
Speakers from Germany included: Klaus Lörcher, Germany, former ETUC legal advisor, former Legal Secretary of the Civil Service Tribunal of the European Union: “The role of the European Social Charter for the protection of (migrant) workers‘ rights, in particular after Brexit”; Karl Kopp, Director of European Affairs, PRO ASYL, Frankfurt/Main: Perspectives for the defence of Human Rights for Refugees in Europe. “The impact of Brexit”; and Prof. Andreas Fisahn, Bielefeld: “The lack of democracy and the future of the union”. There were speakers for and against Brexit.
On 15-16 March 2018, the Permanent Peoples’ Tribunal on Turkey and Kurds, took place in Paris. This session of the PPT was proposed by the IADL, the ELDH, Mafdad, an organization based in Germany of Kurdish and German Lawyers, and the Kurdish Institute of Brussels. The judges included Prof Norman Paech. The Belgian advocate, Jan Fermon, a member of ELDH, served as Prosecutor. I was the first witness, on the question of self-determination for the Kurds. The Judgment was delivered at the European Parliament in Brussels on 24 May 2018, and is a very significant act of solidarity with the Kurds.
ELDH returned to Turkey on 7-9 September 2018 for the well attended conference at the Istanbul Bar Association “The normalization of the state of emergency and the situation of judiciary in Turkey”, organised by a number of Turkish Bar associations, and by the Association of Democratic Judiciary – Syndicat of Judges; European Democratic Lawyers – AED; ELDH; the Day for Endangered Lawyers Foundation; IADL; and Consiglio Nazionale Forense.
On 20 October 2018 this was followed by a conference, sponsored by ELDH, in Berlin: “25 Jahre PKK-Verbot – 25 Jahre Repression und Demokratieabbau im Dienste der deutschen Außenpolitik”.
The Second International Human Rights Academy of the Aegean (IHRAA), took place at the Nesin Maths Village, Şirince, Izmir, Turkey, on 2-4 November 2018, with the theme: “International Human Rights Regime in Crisis”. It was organised by the Platform of Lawyers for Freedom ÖHP; IADL; ELDH; and the Solidarity Academy of Izmir. I spoke, with speakers from Catalonia, England, India, and Japan.
The Second Conference of Mediterranean Lawyers took place in Naples on 19 May 2019, organised by the Italian Association of Democratic Lawyers, and supported by ELDH and IADL. The theme was “Self-determination, human rights and migration”. The Conference heard lawyers from Catalonia, Greece, Iraq, Italy, the Kurdish People, Lebanon, Morocco, Palestine, Spain, Syria, Tunisia, Turkey, and Western Sahara; Luca Casarini, Head of Mission ship “Mediterraneo”; Laura Marmorale, Counsellor for Migration, Naples Municipality; with a conclusion from the Italian lawyer Michela Arricale.
The Third International Human Rights Academy of the Aegean (IHRAA), took place at the Nesin Maths Village, Şirince, Izmir, Turkey, on 18-20 October 2019, with the theme “Law and Human Rights in Oppressive Regimes”. I spoke, together with human rights lawyers from several countries.
On 23 April 2020 Haldane presented, with the support of ELDH and IADL, an online, Zoom, conference “Persecution of Lawyers in India: building a network of international solidarity”. The speakers were: Indira Jaising – Senior Counsel, Supreme Court of India. Lawyers‘ Collective; Mihir Desai – Senior Counsel and defence lawyer, High Court of Mumbai. Human Rights Law Network; Professor Jagmohan Singh – Association for Protection of Democratic Rights, Punjab. This brilliant conference was organised and chaired by Professor Radha D’Souza, University of Westminster, London.
Haldane, with the support of ELDH, organised an online conference with the title “Hostile Environments” on 24 October 2020. The well-attended conference brought together activists, academics and lawyers joining in the fight for migrant and climate justice, in solidarity against the racist and classist systems standing in their way. There were four panels: 1) “Yarl’s Wood: learning the lessons from a history of resistance”; 2) “Unlawful pushbacks in the Mediterranean and English Channel”; 3) Climate Justice and Migration”; and 4) Organising to win: what’s the role of legal sector workers?”.
On 5 April 2021 many lawyers’ organisations including ELDH supported the “International Memorial Event for Ebru Timtik: A life dedicated to the struggle”. On the Day of Lawyers (Turkey), the international legal community gathered together to commemorate Ebru Timtik who passed away after a 238-days hunger strike with the demand of a fair trial for all people who are suffering under the ongoing injustice in Turkey. “Ebru Timtik will never be forgotten and as lawyers, we will never stop fighting for the right to a fair trial.”
Worker rights were again the focus of the conference held in Brussels and online on 28-29 October 2021 “Labour rights & the digital transition”, organized by the ETUI in cooperation with the European Lawyers for Workers Network (ELW Network), and ELDH. The conference was opened by Thomas Schmidt, and the sessions were: 1) “Bringing the Algorithms to Court”, moderated by Ruediger Helm (Lawyer, ELW); “The Yodel case and its implications for platform workers’ rights”, Lord John Hendy QC (Barrister, UK); “Defending collective rights of platform workers in courts”, Carlo De Marchis (Lawyer, Italy); “The contribution of the GDPR to protect platform workers’ rights”, Anton Ekker (Lawyer, The Netherlands); “Socializing digital work via the courts?” Antonio Aloisi (Assistant Professor, IE Law School); 2) “Collective Rights in the Digital Economy”, moderated by Aline Hoffmann (Head of Unit, Europeanisation of Industrial relations, ETUI); “Protecting platform workers’ rights in the digital economy”, Silvia Simoncini (National secretary NidiL CGIL); “Raising activism among platform workers”, Martin Willems (United Freelancers, acv-csc); “Collective bargaining to address negative impact of labour market monopsony”, Séverine Picard (Progressive Policies); “Unions’ strategy to contrast the market power of digital platform”, Annika Flaten (Director Commerce, UNI Europa)
Conclusion
In conclusion, I always insist that lawyers are not and cannot be a revolutionary vanguard, and law for the most part is not emancipatory. But the lawyers of VDJ, in its 50 years of existence, and Haldane, for nearly 90 years, and ELDH since 1993, with our many colleagues in 22 countries, have had the privilege of putting their skills at the service of the labour movement, and of democratic and human rights struggles internationally. We may well have made some difference.
[1] https://iadllaw.org/2020/10/iadl-mourns-gerhard-stuby/
[2] https://iadllaw.org/history/
[3] See Bill Bowring “Zionist Repression in the Occupied Territories” The Marxist Monthly v.1, n.7 (1988) p.18-26; and our report at https://primarysources.brillonline.com/browse/human-rights-documents-online/report-of-the-mission-of-enquiry-to-the-occupied-territories-of-the-west-bank-and-the-gaza-strip-francois-bailly-bill-bowring-27-june-to-3-july-1988-24-pp;hrdhrd01380160, behind a pay-wall
[4] https://www.btselem.org/about_btselem
[5] https://www.alhaq.org/about-alhaq/7136.html
[6] https://eldh.eu/en/ueber-ejdm/satzung/
[7] https://iadllaw.org/1996/04/1996-haldane-society-report-from-cape-town-congress-of-the-iadl/
[8] https://bbowring.com/2022/04/29/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-so/
[11] https://eldh.eu/2022/01/day-of-the-endangered-lawyer-2022-events-in-solidarity-with-endangered-lawyers-in-colombia/
[12] https://eldh.eu/en/2021/10/save-the-date-labour-rights-the-digital-transition-28-29-october-2021/
[13] https://eldh.eu/en/2021/05/agenda-of-the-1st-international-fair-trial-day-and-ebru-timtik-award-2/
[14] https://eldh.eu/en/2022/04/eldhs-deep-concern-at-catalangate-illegal-surveillance-of-catalans/
[15] https://eldh.eu/en/2022/04/western-sahara-crisis-a-solution-must-be-based-on-international-law/
[16] https://eldh.eu/en/2022/04/statement-against-the-banning-of-the-peoples-democratic-party-hdp/
[17] https://eldh.eu/en/2022/03/failure-of-the-united-kingdom-to-investigate-and-prosecute-murders/
[18] https://eldh.eu/2022/03/eldh-statement-on-the-russian-invasion-of-ukraine/
[19] https://eldh.eu/2010/05/peoples-in-motion/
[20] https://eldh.eu/wp-content/uploads/2018/09/Documentation_-_conference_Legal_Impact_of_Debt_Crisis_-_21st_May_2011_-_Athens.pdf
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
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.
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
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.
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).
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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.
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 real movement which abolishes the present state of things 