Strategy and Tactics

Strategy and Tactics
Robert Knox*
ABSTRACT: Critical international legal scholars have long grappled with the
question of how to intervene in legal and political debates. In recent years
one trend has been to argue that it is necessary to intervene ‘strategically’ in
such debates. However, what is meant by ‘strategically’ in this instance is an
essentially pragmatic intervention focused on winning the debate in the short
term. In the usual language, such an intervention would be called tactical as
opposed to strategic, with ‘strategy’ referring to one’s longer term, structural
objectives. This article argues that contemporary critical scholarship has lost
sight of the distinction between strategy and tactics, resulting in the systematic
exclusion of the former from political and theoretical discourse. The article
begins by reconstructing the division between strategy and tactics. Following
this, it proposes what a strategic objective for critical international lawyers
might look like. It is then argued that in actual fact interventions in debates
have been purely tactical interventions couched in the language of ‘strategy’. The
article then traces the problems that flow from this – arguing that a perpetual
focus on short term, conjunctural considerations turns a supposedly ‘strategic’
adoption of liberal legalism into a capitulation to it. The article next traces how
the Marxist tradition has understood the intimate relationship between strategy
and tactics, and its usage of these terms to navigate the debate around reform
and revolution. Finally, the piece attempts to reconstruction a specifically legal
strategy that draws on the insights provided by the Marxist tradition.
KEYWORDS: strategy, tactics, Marxism, critical legal studies, international legal

theory
By rushing into sordid reformist compromises or pseudorevolutionary collective

actions, those driven by an abstract desire for immediate effectiveness are in reality
obeying the ruling laws of thought, adopting a perspective that can see nothing
but the latest news. In this way delirium reappears in the camp that claims to be
opposing it. A critique seeking to go beyond the spectacle must know how to wait.
Guy Debord1
* PhD Candidate, London School of Economics and Political Science. This paper was presented
at the Fourth Annual Conference of the Toronto Group for the Study of International,
Transnational and Comparative Law and the Towards a Radical International Law workshop,
so my thanks go to the organisers, my co-panellists and the audience at these events. My
deepest thanks to Irina Ceric, Giorgos Galanis, Susan Marks, China Miéville, John Haskell,
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194 Finnish Yearbook of International Law (Vol. 21, 2010)
1. Introduction
In a 1990 interview in The Postcolonial Critic, Gayatri Spivak described how she
related her theoretical positions to her more ‘political’ interventions. She argued
that although – theoretically and intellectually – she was opposed to ‘universalism’
or ‘essentialism’, it was necessary to make a ‘strategic choice’2 when intervening
politically. This strategic choice involved recognising that since the language of
universalism or essentialism was the language in which political debates were
conducted, one had to adopt this language in order to make an intervention.
Thus, she ‘spoke of universality because universality was in the air from the other
side in the talk of female discourse ... and since I believe that one shouldn’t throw
away things but use them, strategically ... perhaps here was an item which could
be used as a universal signifier’.3 This position – that anti-essentialists should not
simply discard essentialism, but must instead deploy essentialist arguments in
concrete political contexts – has come to be known as ‘strategic essentialism’.4
Yet although such a position has an evident attraction, one can immediately
imagine several problems with it. The first problem is when one should use es-
sentialism and when one should not. Spivak’s argument simply seems to be that
there are some times that essentialism should be used and other times when it
should not, what is lacking is any broader criterion as to its use or non-use. The
second problem is that of legitimation. Is it really the case that we should always
engage in debates purely on the terms that we find them? In so doing, do we
not risk winning the particular argument, whilst at the same time legitimating
those broader structures that we wish to undermine? The combination of these
two arguments points to the third objection we can raise. If one uses essentialism
whenever it is effective to do so, having no concern as to whether one’s behaviour
is legitimating that very language, in what sense is one’s behaviour different from
anyone else’s? In other words, does strategic essentialism, in this sense, not simply
collapse into essentialism?
These problems stem from the fact that, notwithstanding its characterisation,
Spivak’s position is not one of strategic essentialism at all. Although her posi-
tion clearly is one that pays attention to the pragmatic dimensions of political
Eva Hartmann, Florian Hoffmann, Paavo Kotiaho, Akbar Rasulov, Owen Taylor and Alberto
Toscano for enduring my endless and incoherent rants about this topic, as well as their pertinent
and useful responses to said rants. Thanks also (and again) to Paavo Kotiaho, Chris Taylor,
Owen Taylor and Akbar Rasulov for their helpful comments on drafts of this article. In the
typical academic inversion of corporate responsibility, all errors of style and substance remain
my own. References to online sources are accurate as of 17 August 2011.
1. Guy Debord, Society of the Spectacle (Rebel Press: London) at 119.
2. Gayatri Spivak, The Postcolonial Critic: Interviews, Strategies, Dialogues (Routledge: New York
and London, 1990) at 10.
3. Ibid., at 11.
4. See Bart Moore-Gilbert, Postcolonial Theory: Contexts, Practices, Politics (Verso: London, 1997) at 198.
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Strategy and Tactics 195
interventions, these dimensions are confined purely to the short term. Whilst
she gives an account of how immediate arguments might be won, she gives no
consideration of how to reconfigure the terms of these arguments, thus undermin-
ing essentialism itself. At best, her position is one of tactical essentialism, paying
little or no attention to the deeper or longer term aspects of the critique of es-
sentialism. This is not simply a matter of semantics. In conflating strategy and
tactics – a distinction that will be explored more fully below – Spivak completely
subsumes the former into the latter, with the essential outcome that all matters
of ‘effectiveness’ are reduced to purely short term considerations.
What relevance does this have for international law? Whilst international law
has always been a central feature of international politics, it is only in recent years
that it has become a regular feature in the news media, and a more important
part of ‘everyday’ political life. This has been particularly evident in the centrality
that international law has come to assume in the construction and contestation of
foreign policy.5 There have been various moments that were especially important
in this process: beginning perhaps with Kosovo and culminating in the War on
Terror and the 2003 Iraq war. Most recently, debates around the killing of Bin
Laden and the NATO intervention in Libya have been conducted in fiercely
juridical terms.6
For those scholars and practitioners of international law who identify them-
selves as part of the left this has raised considerable problems. The main ques-
tion has been how to intervene in these debates in a distinctively left or critical
fashion. This is linked to the more general question of how – or even whether
– the left can utilise international law in such a way as to advance the interests
of the oppressed and exploited.7 It is here that the above considerations on
5. Perhaps the author at the vanguard of the legalist opposition to the Iraq War and the detention,
rendition and torture associated with it has been Philippe Sands. See, for example: Philippe
Sands, Lawless World: Making and Breaking Global Rules (Penguin Books: London, 2006).
6. Thus, in relation to Bin Laden, Ken Livingstone – former Mayor of London – asked ‘are we
gangsters or a Western democracy based on the rule of law?’, Pippa Crerar, ‘Ken Livingstone:
Killing makes Barack Obama look like a mobster’ in The Evening Standard, <http://www.
thisislondon.co.uk/standard/article-23946580-ken-livingstone-killing-makes-barack-obama-
look-like-a-mobster.do> (visited 4 May 2011). Boris Johnson – present, Conservative, Mayor of
London – argued similarly: ‘Let’s be clear: Osama bin Laden was executed – and for good reason’
in The Telegraph, <http://www.telegraph.co.uk/comment/columnists/borisjohnson/8501595/
Lets-be-clear-Osama-bin-Laden-was-executed-and-for-good-reason.html> (visited 8 May
2011). Against this see Eric Holder, ‘Bin Laden death ‘not an assassination’, <http://www.bbc.
co.uk/news/world-us-canada-13370919> (visited). In the Libyan context, most arguments
mounted against the intervention have been on the grounds that ‘mission creep’ will mean
that the intervening forces go beyond the bounds of the UN Security Council Resolution (and
hence the action will breach international law), see for example Ian Traynor, ‘Libya: ‘mission
creep’ claims as UK sends in military advisers’ in The Guardian, <http://www.guardian.co.uk/
world/2011/apr/19/libya-mission-creep-uk-advisers> (visited 19 April 2011).
7. See in particular: Robert Knox, ‘Marxism, International Law and Political Strategy’, 22 Leiden
Electronic copy available at: https://ssrn.com/abstract=1921759

Spivak become relevant. As will be argued below, Spivak’s strategic essentialism

is a sophisticated articulation of the basic logic that underpins a great deal of
critical thinking on how to intervene in these debates. These accounts rely on
the idea that a ‘strategic’ intervention has to be made into the existing debates,
whilst focusing almost exclusively on short term, tactical considerations. Thus,
strategy has become systematically confused with tactics, resulting in its exclusion
from theoretical discourse. Those same problems identified in Spivak’s approach
continually resurface in critical legal scholarship.
This article seeks to challenge the above position and construct an alternative
account of how critical international lawyers might intervene politically. To this
end, Section 2 of this article briefly reconstructs the distinction between strat-
egy and tactics. In Section 2.1 this is achieved through examining the original
context in which this distinction was articulated, that of military theory. Section
2.2 turns to a slightly different sphere – that of political theory – and attempts
to see how the originally military distinction has been understood in political
terms. Section 3 examines how the distinction can illuminate the attempts of
critical legal scholars to intervene in political debates. In section 3.1 an attempt
is made to imagine what a strategic objective for critical legal theory might look
like, through examining the theoretical commonalities of some of its participants.
This is followed by section 3.2 which uses the letter written by several academics
against the Iraq war as a lens to examine how critical scholars have understood
the relationship between strategy and tactics. Here it will be argued that these
writings have fallen into the trap outlined above – confusing strategy with tactics
– and ultimately end up collapsing into liberalism. Section 3.3 argues that one of
the central elements of this position is that it erects a rigid dichotomy between
‘liberal legalism’ and ‘legal nihilism’, in which liberal legalism cannot help but
seem attractive. Section 4 examines a number of writers in the Marxist tradition,
arguing that their understanding of strategy allowed them to bridge the divide
between liberal legalism and legal nihilism. Finally, in section 5, the article puts
forward a specifically legal conception of the relationship between strategy and
tactics, developing a position of ‘principled opportunism’.
Journal of International Law (2009) 413-426; Robert Knox, ‘Review Essay: The Degradation
of the International Legal Order’, 18 Historical Materialism (2010) 193-207; Bill Bowring,
‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’, 19 Historical
Materialism (2011) 113-127; Umut Özsu, ‘The Question of Form: Methodological Notes on
Dialectics and International Law’, 23 Leiden Journal of International Law (2010) 687-707;
Akbar Rasulov, ‘The Nameless Rapture of the Struggle: Towards a Marxist Class-Theoretical
Approach to International Law’, 19 Finnish Yearbook of International Law (2008) 243-294
and Susan Marks, ‘International Judicial Activism and the Commodity-Form Theory of
International Law’, 18 European Journal of International Law (2007) 199-211.

2. The Anatomy of a Distinction

2.1. Politics as War
Although today strategy is perhaps seen as synonymous with the world of busi-
ness, it has its origins in what we might call military science, and continues to
be a central term in the contemporary military world. Indeed many of those
who used the terms ‘strategy’ or ‘tactics’ in describing politics were influenced
directly by these military theorists.8 Accordingly, before turning to the political
usage of the term, it is wise to begin with how these military theorists have dealt
with these notions. Carl von Clausewitz, one of the most influential exponents
of modern military theory, defined strategy as:
[T]he use of the engagement to attain the object of the war ... It must therefore
give an aim to the whole military action. This aim must be in accord with the
object of the war. In other words, strategy develops the plan of the war, and to
the aforesaid aim links the series of acts which are to lead to it; that is, it plans the
separate campaigns and arranges the engagements to be fought in each of them.9
Strategy is – in essence – how it is that one would fight and win a war:
connecting the various individual battles together so as to achieve this broader
objective. In contradistinction to this is tactics, which is concerned with smaller
and shorter term matters. Tactics are concerned with how to win the individual
battles and engagements of which the war is composed.10
If we wish to translate this metaphor into more general terms, we might say
that strategy concerns the manner in which we achieve and eventually fulfil our
long term aims or objectives, whereas tactics concerns the methods through
which we achieve our shorter term aims or objectives. The obvious conclusion
8. See Jacob W. Kipp, ‘Lenin and Clausewitz: The Militarization of Marxism, 1914-1921’, 49
Military Affairs (1985) 184-191 and Sigmund Neumann and Mark von Hagen, ‘Engels and
Marx on Revolution, War, and the Army in Society’, in Peter Paret (ed.), Makers of Modern
Strategy from Machiavelli to the Nuclear Age (Princeton University Press, 1986) 262-280.
Equally, many political actors were involved in armed struggles and so wrote directly on issues
of strategy and tactics: see Che Guevara, Guerrilla Warfare (University of Nebraska Press, 1998)
and Mao Tse-tung, ‘Problems of Strategy in China’s Revolutionary War’, in Selected Works of
Mao Tse-tung: Volume I (Foreign Languages Press: Peking, 1967) 179-254.
9. Karl von Clausewitz, War Politics and Power (Gateway Press: Chicago, 1965) at 171.
10. Clausewitz’s definition here is not taken as necessarily definitive but as both the classic
definition, and representative of how many have characterised strategy, thus Montgomery
defined strategy as ‘the art of the conduct of war, tactics the art of fighting’ (Field-Marshal
Montgomery of Alamein, A History of Warfare (Collis: London, 1968), see also B.H. Liddell
Hart, Strategy (Faber: London, 1967) at 321, Mao Tse-tung ‘Problems of Strategy’ supra note
8 at 183, and Guevara ‘Guerilla Warfare’ supra note 8 at 14. The Oxford English Dictionary
defines strategy as the ‘art of a commander-in-chief; the art of projecting and directing the
larger military movements and operations of a campaign’ in distinction to tactics which is
‘the art of handling forces in battle or in the immediate presence of the enemy’.

here, and one that will be important to bear in mind throughout this article, is
that when we talk of ‘pragmatism’ or ‘effectiveness’ it need not be referring to
only the immediate situation. As will be explored more fully below, any tactical
intervention will also have strategic consequences. This means that when thinking
about effectiveness, it is necessary to understand the inherent relation between
strategy and tactics.11 In so doing, the distinction allows us to consider how effec-
tive particular (seemingly ‘short term’) interventions might be in the longer term.
The very obvious difficulty here is that in practical terms it may be quite dif-
ficult to distinguish between the long term and the short term. This is particularly
true in the case of political interventions. More than this, however, temporality
does not quite capture the distinction between a ‘battle’ and a ‘war’. Although
it is clear that there are temporal differences between the two, there could be
innumerable examples of long battles or short wars. Instead, the difference be-
tween a battle and a war (and therefore between tactics and strategy) seems to
turn on a structural distinction, lying in the particular aims and objectives of the
different types of engagement. Whilst the task of a battle is generally simply to
defeat a given enemy militarily, the task of a war will be more complex, involv-
ing the disposition of forces, decisions about whether some battles should even
be fought (or whether some ought to simply be lost) and complex political and
diplomatic aspects.12 Of course this difference in kind generally does correspond
to a distinction between the long and the short term, but this does not represent
the ‘essence’ of the problem. As such, whilst temporality remains an important
part of the distinction, it cannot be the sole factor underlying it.
2.2. Organic and Conjunctural

Accordingly, it is not the case that the particular way in which the distinction
operates in military terms can be directly mapped onto the political and legal
sphere. This is especially true given that war is – to quote Clausewitz again – ‘the
continuation of policy by other means’13. Despite this, there is a common thread
running between military and political theory on this subject, with political
thinkers sharing a similar understanding of strategy as operating in the ‘long
term’. In order to understand how this has been ‘translated’, it is useful to turn
11. See Guevara ‘Guerilla Warfare’ supra note 8 at 18-19 and Mao Tse-tung ‘Problems of Strategy’
supra note 8 at 183-184, for the necessary relation between strategy and tactics.
12. Peter Paret, ‘Introduction’ in Paret ‘Makers of Modern Strategy’ supra note 8 at 3.
13. Clausewtiz ‘War, Politics and Power’ supra note 9 at 83. One might note here Foucault’s
inversion of this proposition, where he argues that ‘politics is the continuation of war by
other means’, see Michel Foucault “Society Must be Defended” Lectures at the Collège de France,
1975-76 (Picador: New York, 2003). In this work he more generally develops a theory as
to the central role of ‘war’ in structuring politics, and of the utility of concepts drawn from
military theory in accounting for social phenomena.

to Antonio Gramsci’s distinction between organic and conjunctural moments

and the type of ‘criticism’ that both entail:
[I]n studying a structure, it is necessary to distinguish between organic movements
(relatively permanent) from movements which may be termed “conjunctural”
(and which appear as occasional, immediate, almost accidental). Conjunctural
phenomena too depend on organic movements to be sure, but they do not have
any very far-reaching historical significance; they give rise to a political criticism
of a minor, day-to-day character, which has as its subject top political leaders and
personalities with direct governmental responsibilities. Organic phenomena on
the other hand give rise to socio-historical criticism, whose subject is wider social
groupings – beyond the public figures and beyond the top leaders.14
Gramsci articulated this distinction – in part – in order to understand the logic
of strategic and tactical interventions in the political sphere.15 In this account,
strategy is related to organic phenomena, that is to say those relationships which
are relatively permanent, and serve as the basic or fundamental structure of the
field in which the intervention is made. In terms of Marxist political economy,
the prime example of such a phenomenon would be the mode of production
(for instance feudalism or capitalism) and the relations of production of which
it is composed. Strategic questions are those that are addressed at critiquing and
overturning these relationships.
Accordingly, we might say that strategic interventions are ‘revolutionary’,16
inasmuch as they address critiquing or abolishing the basic logic of the system.
Moreover, since they address relationships that operate at a broader and less im-
mediate level than other struggles, strategic decisions are likely to be informed in
a greater sense by ‘theory’ (hence Gramsci’s reference to ‘socio-historic’ criticism)
as it becomes more important to understand and unpack the logic of the system.
However, these considerations remain ‘prudential’ or ‘pragmatic’ inasmuch as
14. Antonio Gramsci, Selections from the Prison Notebooks (Lawrence and Wishart: London, 2003)
at 177-178.
15. ‘This should be accompanied by the explanation of what is meant in politics by strategy and
tactics, by strategic “plan”, by propaganda and agitation, by command structure or science of
political organisation and administration’, ibid., at 176.
16. In The Lessons of October, Leon Trotsky explicitly formulated the analogy in this way, arguing that:
‘By tactics in politics we understand, using the analogy of military science, the art of conducting
isolated operations. By strategy, we understand the art of conquest, i.e., the seizure of power.’
Leon Trotsky, ‘The Lessons of October’, <www.marxists.org/archive/trotsky/1924/lessons/index.
htm> (visited). However, one need not think of revolution purely in its political sense here, one
could equally think of revolution in the terms that Kuhn formulated it, as a ‘paradigm shift’
in a way of understanding the world, see Thomas Kuhn, The Structure of Scientific Revolutions
(University of Chicago Press, 1996); for an attempt to apply this explicitly to radical politics
and social science see David Harvey, ‘Revolutionary and Counter Revolutionary Theory in
Geography and the Problem of Ghetto Formation’, 4 Antipode (1972) 1-13.

they aim at finding the most effective methods to achieve a goal. The difference
is simply that this goal is related to structural or systemic issues.
By contrast tactics are concerned with conjunctural moments, that is to say
those which are not structural in a direct sense. Tactics address those transitory
conflicts and battles that occur in the political sphere, which could be a whole
range of different issues: from an individual election, to a particular protest and so
on. Consequently, there is a sense in which, in contrast to strategy, tactics would
be more concerned with ‘reform’ than with revolution,17 since tactics deals with
those occurrences which do not directly call the system into question.
Of course, tactics and strategy do not exist in rigid isolation from each other.
This is because – as above – any given act which has to be reckoned with ‘tacti-
cally’ will at the same time make up the broader pattern of engagements to which
strategy directs our attention. Equally, there are situations in which the very ‘day-
to-day’ issues may take on an immediately structural character, meaning tactical
decisions will be immediately strategic. However, these ‘revolutionary’ situations
are in fact extremely rare, occurring only in extraordinary historical conjunctures.
For the majority of time the distinction between strategy and tactics is a necessary
one because the critique of the basic structural logic of the system is not identical
with every day struggles within it, and the critique of this structure is not one
that has an immediate appeal to the majority of people.
Thus, to go back to an earlier point, the distinction between strategy and tactics
could be said to be a consequence of advancing a ‘revolutionary’ critique in non-
revolutionary times. This is where the issue of temporality returns, for whilst the
distinction between strategy and tactics is a structural one, in non-revolutionary
times it will almost always assume a temporal form. If the overturning of the social
structure is not immediately on the cards, it must become a long term goal, whereas
conjunctural issues necessarily operate in the shorter term. Since the strategy and
tactics distinction only makes sense in non-revolutionary times, it follows that it
will almost always appear in a temporal form. To put it simply, we might say strat-
egy concerns finding methods to achieve long term, systemic aims, whereas tactics
concerns finding methods to achieve short term, conjunctural aims.
17. To some degree this will be problematised below, in the exploration of how Marxists have
navigated debates around reform and revolution, but it serves as a useful starting point. For
an exploration of the function of revolution in contemporary international legal scholarship,
see Owen Taylor ‘Reclaiming Revolution’, unpublished paper, presented at the Eighth Annual
Historical Materialism Conference, 2011.

3. Strategic essentialism redux

3.1. Law’s War and Legal Battlefields
Whilst this schema might seem somewhat abstract, it is directly applicable to the
way in which critical legal scholars have approached intervening in political and
legal debates. Before examining how these interventions have been conducted,
it is necessary to briefly outline the strategic and tactical issues at play. Critical
international legal scholarship is a rather broad church, composed of a number
of individuals situating themselves in various theoretical traditions.18 That being
said, it is arguable that there are a number of theoretical positions around which
there is a degree of convergence, and mark scholars out as belonging to the critical
legal tradition.19 Whilst these may not capture every figure in the tradition, they
provide sufficient overlap for us to think about what the content of a broadly
critical legal strategy might be. In basic terms, these are – what we might call –
the indeterminacy thesis, lawfare and structural bias.
These three inter-linked positions provide the basic framework through which
many critical scholars understand international law, so it is worth unpacking
slightly what they mean and how they interconnect. There are many different
variants of the indeterminacy thesis: legal realist (American and Scandinavian),
structuralist, post-structuralist etc. However, whilst the reasons for indeterminacy
may be divergent, it can be argued that they come to similar conclusions. In es-
sence, the indeterminacy thesis refers to the idea that legal argument cannot be
resolved ‘on its own (legal) terms’. This is because a given legal argument can be
opposed by another – equally valid – legal argument, meaning that from within
the law various outcomes will all be equally valid.20 As such, legal interpretation
cannot be a ‘neutral’ affair of applying rules to a given situation, but always in-
volves some level of political choice as to which conflicting argument will apply.
Whilst one need not hold to the indeterminacy thesis in order to argue that legal
18. See David Kennedy and Chris Tenant, ‘New Approaches to International Law: A Biography’,
35 Harvard International Law Journal (1994) 417-460 at 418-420. This is not taken as an
authoritative guide to the contemporary movement, but rather as a historical example of the
diversity of the participants in the critical project.
19. See Thomas Skouteris, ‘Fin de NAIL: New Approaches to International Law and its Impact
on Contemporary International Legal Scholarship’, 10 Leiden Journal of International Law
(1997) 415-420.
20. For the classic account in international law see Martti Koskenniemi’s From Apology to Utopia:
The Structure of International Legal Argument (Cambridge University Press, 2005). The literature
on indeterminacy is large and varied – especially given the various approaches outlined above
– but for some of the critical legal studies literature see Mark Kelman, A Guide to Critical
Legal Studies (Harvard University Press, 1987) especially at pages 1-63 and Duncan Kennedy,
A Critique of Adjudication: Fin de Siècle (Harvard University Press, 1997).

decisions are political, the indeterminacy thesis necessarily implies a political

dimension to legal decisions.
‘Lawfare’ is a very specific term which refers to the idea that international
law is a part of modern warfare, and can be used as a weapon by both sides.21
But in this instance the particular usage implies a more general idea about the
relationship between international law and the political process. Essentially, criti-
cal scholars argue that rather than international law being outside of relations of
power, exploitation and domination it is already ‘part of the problem’, that is to
say that international law has played and continues to play a role in constituting
and legitimating these relations.22 This is because it at least partially creates the
conditions in which political and economic power is exercised – by granting
certain types of property, allowing certain types of violence, locating certain
agents within certain social positions and granting them certain powers etc.23
In this view, law is not simply a negative relationship that constrains action, but
also one that sets the conditions in which action takes place, enabling relations
of domination and exploitation.
The final element is that of ‘structural bias’. The following comment from
Martti Koskenniemi gives a glimpse into how it has been understood by critical
scholars. Koskenniemi argues that irrespective of the formal openness entailed by
indeterminacy ‘the system still de facto prefers some outcomes or distributive choices to
21. Charles Dunlap, a central figure in popularising the term, defines it as ‘using – or misusing
– law as a substitute for traditional military means to achieve an operational objective’ in
Charles Dunlap, ‘Lawfare Today: A Perspective’, 3 Yale Journal of International Affairs (2008)
146-154 at 146.
22. David Kennedy ‘The International Human Rights Movement: Part of the Problem?’, 15
Harvard Human Rights Journal (2002) 101-125, which itself is a condensation of the argument
he puts forward in The Dark Sides of Virtue: Reassessing International Humanitarianism
(Princeton University Press, 2004). Kennedy deals much more explicitly with the idea of
‘lawfare’ in his book Of War and Law (2006, Princeton University Press). Along with Susan
Marks’ article ‘State-Centrism, International Law, and the Anxieties of Influence’, 19 Leiden
Journal of International Law (2006) 339-347 these are some of the primary exponents of
the theoretical account of law’s role in constituting domination. Equally, there are a number
of more historically focused accounts, for example Antony Anghie, Imperialism, Sovereignty
and the Making of International Law (Cambridge University Press, 2005) and Balakrishnan
Rajagopal, International Law from Below: Development, Social Movements and Third World
Resistance (Cambridge University Press, 2003).
23. Although obviously not directly a work of international law, Duncan Kennedy’s analysis
of the importance of law in conditioning the bargaining power of economic actors is both
influential and exemplary in explaining law’s role in the constitution of power relations, see
Duncan Kennedy, ‘The Stakes of Law, or Hale and Foucault!’ in Sexy Dressing Etc. (1995,
Harvard University Press) at 85-125. Some examples of its use include Alvaro Santos ‘Three
Transnational Discourses of Labor Law in Domestic Reforms’, 32 University of Pennsylvania
Journal of International Law (2010) 123-202 and Robert Wai ‘Transnational Liftoff and
Juridical Touchdown: The Regulatory Function of Private International Law in an Era of
Globalization’ 20 Columbia Journal of Transnational Law (2001) 209-274.

other outcomes or choices ... even if it is possible to justify many kinds of practices
through the use of impeccable professional argument, there is a structural bias in
the relevant legal institutions that makes them serve typical, deeply embedded
preferences, and that something we feel that is politically wrong in the world is
produced or supported by that bias.’.24 Whilst there are problems with this specific
formulation, it does the final core insight of critical international lawyers, namely
that law is not a neutral framework through which all interests can be equally
expressed, but one which will systematically favour some interests over others.25
Provisionally then, these positions point to a theory about law and legal ar-
gument which argues that it occupies a central role in international politics. In
this vision, international law helps to constitute and enable those relations that
critical scholars want to fight and is not a ‘neutral’ instrument through which any
actors can pursue their interests. Crucially, this is a theory about the structure of
law and legal argument, which is not concerned with specific legal rules should
be deployed or the outcomes of specific legal decisions, but is rather about the
broader the relationship between law and social phenomena. These positions
stand in contrast to the mainstream, liberal understanding of international law.
The liberal position is the precise inverse of the critical one outlined above. In this
understanding, international law is seen as a determinate body of rules, through
which various interests could be expressed. Here international law is not said
to be constitutive of relations of exploitation of domination, but rather to have
played a crucial role in ending such relations historically (particularly in the case
of colonialism) and in the present conjuncture to be systematically violated and
abused by various superpowers.26 In this account international law is at worst a
‘neutral’ vessel, and at best the rule of law (as distinct from particular laws) is a
force for good.
This liberal understanding is one not simply held by lawyers or academic
commentators, but is also the ‘common sense’ understanding of international
law that structures public debate.27 Much of this debate proceeds on the under-
standing that various imperial actions are illegal, must be shown to be so, and
contested in these terms.28 The applicability of the strategy and tactics distinction
24. Martti Koskenniemi, From Apology to Utopia, supra note 20, at 606-607.
25. See also China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill:
Leiden, 2005) especially at 293 and Kennedy, ‘The International Human Rights Movement’,
supra note 22.
26. See Sands, Lawless World, supra note 5; Geoffrey Robertson, Crimes Against Humanity (Penguin
Books: London, 2006) and David Rose, Guantanamo: America’s War on Human Rights (Faber
and Faber: London, 2004).
27. The articles cited supra note 6 give some idea of this.
28. Perhaps tellingly, some of the most cogent challenges to this approach have come from those
on the right of the political spectrum, see Jack Goldsmith and Eric Posner, The Limits of
International Law (Oxford University Press, 2007). Chase Madar’s columns in the American
Conservative <www.amconmag.com/search.html?v&m=3&author=Chase+Madar&start=

should be obvious here. On the one hand we have a group of scholars advancing
a structural critique of international law that is, in the limited sense outlined
above, ‘revolutionary’. On the other hand, they operate in a context in which
the majority of individual struggles – over wars, detention of ‘terrorists’, debt
etc. – are conducted in such a way as directly militates against this critique. Thus
we have the example of the ‘revolutionary’ critique (of organic moments) in a
non-revolutionary period.
What, in this context, would a strategic objective look like? Despite the
previously mentioned theoretical and political diversity in critical international
legal scholarship, the common ‘organic’ analysis of international law provides a
basic idea of the form such a strategic goal might assume. There are two obvious
variants of strategy here. First, there is what we might call the ‘idealist’ variant.
In this account the primary problem to be dealt with is that the ideas of liberal
legalism have a hold over policy makers and the public. Consequently, strategic
aim would be to reconfigure the debate in such a way that the structural critique
of the mainstream would be strengthened, with the eventual aim of constitut-
ing it as a hegemonic understanding of international law.29 Second, there is a
materialist approach, which would stress that the material basis of the problems
outlined above. On this account, one cannot understand the structuring features
of the law and legal argument on their own terms, or simply as ‘ideas’. Rather,
they need to be understood on the basis of ‘the material conditions of existence’
that is to say those ‘definite and necessary relations of production that human
beings enter into independently of their will’.30 As such, it is social and economic
forces and relationships which generate indeterminacy, lawfare and structural
bias. This means that a strategic goal would necessarily involve overcoming the
social relationships that give rise to the problems outlined above, involving action
to transform the material conditions of our existence.31
0&end=25> (visited 1 August 2011) provide a similar perspective that remains critical of
international law’s role in international politics.
29. David Kennedy puts this point very strongly arguing that the penetration of law into decision
making about war has led to an abandonment of responsibility. He therefore argues that ‘[t]
he way out will not be to tinker with doctrines of the laws of force. If there is a way forward,
it will require a new posture and professional sensibility among those who work in this
common language. Recapturing the human experience of responsibility for the violence of
war will require a professional style discouraged by the modern interpenetration of war and
law’ Kennedy, ‘Of War and Law’, supra note 22, at 170.
30. Karl Marx, Preface and Introduction to A Contribution to the Critique of Political Economy
(Foreign Languages Press: Peking, 1976), at 3.
31. China Miéville is perhaps the most consistent and strident exponent of this position, arguing
that: ‘To fundamentally change the dynamics of the system it would be necessary not to reform
the institutions but to eradicate the forms of law – which means the fundamental reformulation
of the political-economic system of which they are expressions. The project to achieve this is the
best hope for global emancipation, and it would mean the end of law’ Miéville, Between Equal
Rights, supra note 2, at 318.

In practical terms, of course, these are hardly mutually exclusive positions since
any materialist critique relies on convincing people of its validity.32 The point is
that both of these objectives are strategic and so are not directly concerned with
winning arguments on the terms of liberal legalism (that is to say, whether given
actions would be legal or illegal) but rather aim at overturning those very terms.33
3.2. We are Strategists?

3.2.1. Background
Whilst it is clearly possible to imagine a strategic goal for critical legal scholar-
ship, this is not something that has generally informed critical interventions in
legal and political debates. Instead, this article will argue that one route that has
frequently been taken is that of Spivak, whereby only tactical interventions oc-
cur, which are then branded as strategic interventions, foreclosing the possibility
of an actual strategic intervention. The logic of this position, and the very real
dilemma that gives rise to it, is best illustrated by examining an actual attempt
by critical scholars to intervene in a legal-political situation. Since there are very
few examples of such interventions, it is necessary to choose one that is rather
well-worn, namely, the letter that several British-based critical legal academics
wrote on the eve of the second Iraq war, contesting its legality.34
The background to the letter is well-known, but it is worth briefly rehears-
ing. In 2003 the debate around the invasion of Iraq was raging. Although many
opposed it on moral and political grounds, the debate increasingly became
dominated by the question whether or not the war would be legal. The United
States and its allies (particularly in this case Britain) argued that Security Coun-
cil Resolution 1441 had revived Security Council Resolution 678 (the ceasefire
agreement that had ended the first Gulf War). On this basis, it was argued that
since Iraq was in material breach of the Resolution, no further Security Council
Resolution was needed to authorise the use of force. Furthermore, some in the
United States argued that, in the changed conditions of the war on terror, it was
not acceptable – in Condoleezza Rice’s words – to let a ‘smoking gun turn into a
32. Hence Marx argued that ‘theory itself becomes a material source when it has seized the masses’
in Karl Marx ‘Contribution to the Critique of Hegel’s Philosophy of Right: Introduction’ in
Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 53-65, at 60.
33. One response here might be to argue that there can be no strategy because it is not possible to
transcend the status quo at all, at points this appears to be what Spivak (supra note 2, at 101)
does, when she argues ‘since I believe that given our historical position that we have to learn
to negotiate with structures of violence, rather than taking the impossible elitist position of
turning our backs on everything ... I have to learn myself and teach myself to negotiate with
colonialism itself ’. Some of the specifics of Spivak’s position will be contested below, but the
analysis in this article applies – perhaps a fortiori – to those who believe strategy is impossible.
34. ‘War Would be Illegal’ in The Guardian, 7 March 2003, <www.guardian.co.uk/politics/2003/
mar/07/highereducation.iraq> (visited 1.8.2011).

mushroom cloud’.35 According to this line of argument, rather than wait for an
attack to be ‘imminent’, a state could – acting in self defence – attack another
state that was anticipated to use force.36
Whilst the US government did employ legal argument, it became especially
crucial in Britain. Here, the possibility of the invasion was fiercely contested,
and the juridical aspect came to the fore in public argument, with both sides
invoking international legal argument. In particular, much of the legal argument
opposing the war was couched in the liberal legal language outlined above: it was
argued that the war would be illegal (hence the law was determinate), that the
United States was ‘riding roughshod’ over international law with its stretched
interpretations (so international law was not ‘part of the problem’) and that the
world would be a better place if international ‘rule of law’ was respected (indi-
cating that international law was at worst neutral and at best a force for good).
Against this background, several critical scholars decided that the time was ripe
for an intervention. Although these scholars all shared the anti-liberal critique
of international law outlined above, they decided – for reasons that will be ex-
plained below – to intervene by arguing that the war in Iraq would be illegal, thus
intervening in the debate on the (liberal) terms in which it was conducted.
In this letter to The Guardian, they argued that ‘there is no justification under
international law for the use of military force against Iraq’, since anticipatory self-
defence has ‘no basis in international law’ and any use of force under the Security
Council’s mandate must be indicated by ‘clearly expressed assent’. Furthermore,
they argued, to go forward in these respects would ‘seriously undermine the in-
ternational rule of law’. The one concession made to the critique of international
law was the admission that even with authorisation from the Security Council
‘serious questions would remain’ since a ‘lawful war is not necessarily a just,
prudent or humanitarian war’.
3.2.2. The Meaning of Strategy

The impact and significance of this intervention are ultimately rather difficult to
gauge. What is important for the purposes of this argument is that the scholars
involved in the intervention identified themselves as part of the critical tradi-
tion and explicitly reflected upon it in an article, attempting to account for their
intervention in what they called ‘strategic’ terms. This means that the example
provides a very useful entry point into understanding the particular conception
35. Wolf Blitzer, ‘Search for the “smoking gun”’, <http://articles.cnn.com/2003-01-10/us/wbr.

smoking.gun_1_smoking-gun-nuclear-weapons-hans-blix?_s=PM:US> (visited 1 August 2011).
36. There are numerous accounts of this legal background, but for an accessible introduction
see Christine Gray International Law and the Use of Force (Oxford University Press, 2008)
at 193-252. Of course, the position on self-defence was not one directly argued by the US
government.

of ‘strategy’ underpinning such interventions. The piece – ‘We are Teachers of

International Law’37 – set out to give an account of whether the techniques of
critical legal scholarship would ‘preclude strategic intervention in the effort to
stop a war’.38 As should be evident at this point, the way in which strategy is
understood by these authors differs markedly from the perspective outlined in
this article, as well as from how it has been historically theorised.
In the piece strategy is not generally defined directly, instead it is invoked
against various opposing terms. The piece initially operates by counterposing
strategy to ethics, arguing that the former is differentiated from the latter, by the
fact that it is ‘prudential’.39 Yet, as has been argued above, ‘prudence’ can have
many different temporal and structural dimensions. What is important about
the understanding of strategy in the article is that ‘prudential’ is understood in a
very specific way. One can see how prudence is understood through examining
the other contexts in which the term ‘strategy’ is deployed.
The second counterposition that takes place is between strategy and criti-
cism – with criticism ‘giving way’ to ‘strategizing’, as mobilisations against the
war deepened. What this would seem to indicate is that strategy responds to
more immediate circumstances and arguments and so becomes more urgent
when people are ‘out on the streets’, whilst criticism remains at a distance, in-
dicating a detachment from everyday politics. This is reinforced by the authors
describing the intervention as a ‘temporary strategic embrace of the doctrinal’.40
Perhaps the most telling remark is that the ‘strategic reason’ for the interven-
tion was ‘that it might somehow contribute to efforts to stop the war’.41 In
other words, the intervention was couched in the language of liberal legalism
because it was aimed at winning the argument on its own terms, since this was
the most likely method of success. A corollary of this was that ‘criticism’ would
have to be discarded.42
‘Prudence’ in this account, then, is the prudence of the short term, conjunctural
intervention. ‘Strategy’ meant using those tools which would most effectively win
the argument about the Iraq war and help stop it from taking place. The use of
the term ‘strategy’ here then is not that which has informed traditions of political
and military theory, it is precisely the opposite; a strategic intervention is seen
as a short term, conjunctural intervention that aims to win the argument on its
own terms, without considering how to change the terms of the argument. In
other words it is a tactical intervention.
37. Matthew Craven, Susan Marks, Gerry Simpson and Ralph Wilde, ‘We Are Teachers of
International Law’, 17 Leiden Journal of International Law (2004) 363-374.
38. Ibid., at 363.
39. Ibid.
40. Ibid., at 366 (emphasis added).
41. Ibid., at 367.
42. Ibid., at 364.

3.2.3. You Say Strategy, I say Tactics, Let’s Call the Whole Thing Off
This issue is not merely semantic. Although there is certainly a problem of ‘defini-
tion’, the real problem is with the consequences that this choice of terminology
has for political action. Here there are three main problems. The first is that an
intervention that is successful in tactical terms may nonetheless be problematic
in strategic terms. The second is that in the absence of an overarching strategic
vision, there are no criteria for deciding when one should use the language of
liberal legalism and when one should not. The third and final problem is that
these two facts together mean that rather than a ‘strategic’ adoption of liberal
legalism, the vision so outlined is in fact a wholesale capitulation to it.
As is seen above, the understanding of strategy that informs the critical inter-
ventions is composed of two moves. The first is to define strategy as ‘prudential’,
the second is to define ‘prudential’ as meaning able to intervene successfully in
short term, conjunctural moments. The profound problem with this position is
that in collapsing prudence into the short term, it forecloses the possibility that
long term, structural objectives are also practical matters that might also form
part of a prudential calculation. In so doing, it fails to note the fact that a victory
in the immediate, short term context might ultimately prove disadvantageous for
a longer term goal. As Clausewitz noted:
[I]f we adopt the idea that the capture of certain geographical points, the occupa-
tion of undefended provinces is something in itself we are likely to regard it as
an advantage which can be picked up in passing. If we look at it so, and not as
a link in a chain of events, we do not question whether this possession may not
later lead to greater disadvantages. How often we find this mistake recurring in
the history of war!43
This warning is of great relevance to the type of ‘strategic’ interventions
advocated by the authors. There are serious perils involved in making any in-
tervention in liberal-legalist terms for critical scholars. The first is that – as per
their own analysis – liberal legalism is not a neutral ground, but one which is
likely to favour certain claims and positions. Consequently, it will be incred-
ibly difficult to win the argument. Moreover, even if the argument is won,
the victory is likely to be a very particular one – inasmuch as it will foreclose
any wider consideration of the structural or systemic causes of any particular
‘violation’ of the law. All of these issues are to some degree considered by the
authors.44 However, given the way in which ‘strategy’ is understood, the effects
of these issues are generally confined to the immediate, conjunctural context.
As such, the emphasis was placed upon the way that the language of liberal
43. Clausewitz, War, Politics and Power, supra note 9, at 175.

44. Craven et al., ‘We Are Teachers of International Law’ supra note 37, at 369.

legalism blocked effective action and criticism of the war.45 Much less considera-
tion is placed on the way in which advancing such argument impacts upon the
long term effectiveness of achieving the strategic goals outlined above. Here, the
problems become even more widespread. Choosing to couch the intervention in
liberal legal terms ultimately reinforces the structure of liberal legalism, rendering
it more difficult to transcend these arguments.46 In the best case scenario that
such an intervention is victorious, this victory would precisely seem to underscore
the liberal position on international law. Given that international law is in fact
bound up with processes of exploitation and domination on a global scale, such
a victory contributes to the legitimation of this system, making it very difficult
to argue against its logic.
This process takes place in three ways. Firstly, by intervening in the debate on
its own terms, critical scholars reinforce those very terms, as their political goals
are incorporated into it.47 It can then be argued the law is in fact neutral, because
it is able to encompass such a wide variety of viewpoints. Secondly, in discarding
their critical tools in order to make a public intervention, these scholars abandon
their structural critique at the very moment when they should hold to it most
strongly. That is to say, that at the point where there is actually a space to publicise
their position, they choose instead to cleave to liberal legalism. Thus, even if,
in the ‘purely academic’ context, they continue to adhere to a ‘critical’ position,
in public political terms, they advocate liberal legalism. Finally, from a purely
‘personal’ standpoint, in advocating such a position, they undercut their ability
to articulate a critique in the future, precisely because they will be contradicting
a position that they have already taken.
The second point becomes increasingly problematic absent a guide for when
it is that liberal legalism should be used and when it should not. Although the
‘embrace’ of liberal legalism is always described as ‘temporary’ or ‘strategic’,
there is actually very little discussion about the specific conditions in which it is
prudent to adopt the language of liberal legalism. It is simply noted at various
points that this will be determined by the ‘context’.48 As is often the case, the
term ‘context’ is invoked49 without specifying precisely which contexts are those
45. Ibid., at 368-369.

46. See Knox, ‘Review Essay: The Degradation of the International Legal Order’, supra note 7 for
a fuller account of these problems.
47. As Žižek observes there is always a danger that a particular demand can be incorporated into
the system which can ‘with sneering hypocritical satisfaction, make the reply ‘You wanted
this? Here, have it!’’ in Slavoj Žižek, ‘Postface’, in Georg Lukács, A Defence of History and
Class Consciousness: Tailism and the Dialectic (Verso: London, 2006) 151-182 at 164.
48. Craven et al., ‘We Are Teachers of International Law’ supra note 37, at 367 and 374.
49. As T.J. Clark argues with reference to art history, the term ‘background’ (which he uses
as a synonym for context here) is frequently invoked to side step the problem of giving a
concrete account of mediation. Against this Clark argues it is necessary to specify the ‘concrete

that would necessitate intervening in liberal legal terms. Traditionally, such a

context would be provided by a strategic understanding. That is to say, that the
specific tactics to be undertaken in a given conjunctural engagement would be
understood by reference to the larger structural aim. But here, there are simply
no considerations of this.
It seems likely therefore, that again context is understood in purely tactical
terms. Martti Koskenniemi can be seen as representative in this respect, when
he argued:
What works as a professional argument depends on the circumstances. I like to
think of the choice lawyers are faced with as being not one of method (in the
sense of external, determinate guidelines about legal certainty) but of language
or, perhaps better, of style. The various styles – including the styles of ‘academic
theory’ and ‘professional practice’ – are neither derived from nor stand in deter-
minate hierarchical relationships to each other. The final arbiter of what works is
nothing other than the context (academic or professional) in which one argues.50
On this reading, the ‘context’ in which prudence operates seems to the im-
mediate circumstances in which an intervention takes place. This would be
consistent with the idea, expressed by the authors, that the ‘strategic’ context
for adopting liberal legalism was that the debate was conducted in these terms.
But the problem with this understanding is surely evident. As critical scholars
have shown time and time again, the contemporary world is one that is deeply
saturated with, and partly constituted by, juridical relations.51 Accordingly, there
are really very few contexts (indeed perhaps none) in which political debate is not
conducted in juridical terms. A brief perusal of world events would bear this
out.52 The logical conclusion of this would seem to be that in terms of abstract,
immediate effectiveness, the ‘context’ of public debate will almost always call for
an intervention that is couched in liberal legalist terms.
This raises a final vital question about what exactly distinguishes critical scholars
from liberal scholars. If the above analysis holds true, then the ‘strategic’ interventions
of critical scholars in legal and political debates will almost always take the form of
arguing these debates in their own terms, and simply picking the ‘left’ side. Thus,
whilst their academic and theoretical writings and interventions may (or may not)
retain the basic critical tools, the public political interventions will basically be ‘liberal’.
The question then becomes, in what sense can we really characterise such
interventions (and indeed such scholars) as ‘critical’? The practical consequence
transactions’ that are hidden behind invocations of this sort. See T.J. Clark, Image of the People:
Gustave Courbet and the 1848 Revolution (Thames and Hudson: London, 1973).
50. Martti Koskenniemi, ‘Letter to the Editors of the Symposium’, 93 American Journal of
International Law (1999) 351-361 at 356.
51. Marks, ‘State-Centrism’ supra note 22, at 347.
52. See the various articles cited supra note 6.

of understanding ‘strategy’ in essentially tactical terms seems to mean always strug-

gling within the coordinates of the existing order. Given the exclusion of strategic
concerns as they have been traditionally understood, there is no practical account
for how these coordinates will ever be transcended (or how the debate will be
reconfigured). As such, we have a group of people struggling within liberalism, on
liberal terms, who may or may not also have some ‘critical’ understandings which
are never actualised in public interventions. We might ask then, apart from ‘good
intentions’ (although liberals presumably have these as well) what differentiates
these scholars from liberals? Because of course liberals too can sincerely believe in
political causes that are ‘of the left’. It seems therefore, that just as – in practical
terms – strategic essentialism collapses into essentialism, so too does ‘strategic’
liberal legalism collapse into plain old liberal legalism.53
3.3. A Tale of Two Letters, or Taking Theory Seriously

This tactical understanding of strategy, and its attendant consequences, is deeply
bound up with a particular understanding of the relationship between theory and
practice. This is perhaps best encapsulated by Spivak’s comment that ‘[y]ou pick
up the universal that will give you the power to fight against the other side, and
what you are throwing away by doing that is your theoretical purity’.54 In this
understanding, theory figures as an ‘abstract’ non-practical concern that needs
to be discarded in order to make political interventions. Hence, in the above
account, theoretical concerns about the structure of legal argument need to be
jettisoned in order to intervene in real life political argument.
The problem with such a position is that it operates with an overly rigid and
ultimately untenable distinction between theory and practice. An obvious criticism
is that if one’s theoretical position is such that it is entirely useless in providing
an account of how to intervene in practical debates, perhaps what is needed is
a new theory. One could, however, be even more radical in this criticism, and
53. Again, whilst the scholars around the ‘We are Teachers of International Law’ letter are taken as
exemplary, the trend of critical scholars functionally reproducing liberalism in their arguments
can be found across the board. For instance, Paavo Kotiaho has forcefully argued that Martti
Koskenniemi’s (political) call for a culture of formalism reproduces this same pattern:
‘[B]y opting for the call for a ‘culture of formalism’ as the practice of freedom, which
is still embedded in the traditional structure of international legal argumentation,
Koskenniemi has opted to stay embedded within the same liberal theory of politics,
which was the source of his immanent critique ... [B]y opting to enthrone international
lawyers, practicing within the status quo of the traditional framework of international
legal argument, isn’t Koskenniemi in fact calling for the perpetuation of the system,
which remains his focus of attack? And even worse, isn’t he doing this at the expense
of any movement seeking to challenge the status quo?’
Paavo Kotiaho, ‘A Return to Koskenniemi; or the Disconcerting Co-optation of Rupture’,
forthcoming in the German Law Journal <ssrn.com/abstract=1823284>.
54. Spivak, ‘Post Colonial Critic’, supra note 2 at 12.

point out that there cannot be any practice without ‘theory’. Gramsci argues that
‘everyone is a philosopher’ because every action they take presupposes ‘a specific
conception of the world’,55 the only questions then become the degree to which
this ‘philosophy’ is explicit, and how coherent it is. What this points to is the
fact that every practical action is necessarily rooted in an understanding of the
world, and the place of the action within it. Thus, it is not the case that when
one makes an intervention one is ‘throwing away’ one’s theoretical purity, but
rather that there must be some other theoretical conception that is underlying
one’s action. This other conception may in fact contradict the stated ‘theoretical’
position that is being ‘thrown away’.
The importance of this is that it undermines somewhat the claim that ‘good
intentions’ will be enough to count in differentiating critical scholarship from
liberal legalism. More importantly, it points us to the fact that if theory is to
be taken at all seriously, there must be a sense in which it is practically enacted.
However, the collapsing of prudence into tactical considerations precisely denies
this. The rigid distinction between theory and practice is both a cause and a
consequence of the failure to specify the distinction between strategy and tactics.
An important part of any understanding of strategy, therefore, involves working
out how to enact the theoretical position one claims to hold to in practical and
political action.
At a basic level, what might a more strategic intervention look like? China
Miéville quotes David Kennedy to the effect that an alternative intervention might
involve saying ‘international law doesn’t know what it’s doing here folks’.56 Such
an approach does seem to take more seriously the strategic dimension of critical
scholarship, but how does this actually look in practice? A useful example of an
alternative approach can be seen in comparing yet more letters to The Guard-
ian, this time in reaction to Operation Cast Lead: Israel’s highly controversial
intervention in Gaza.
The first letter57 – signed by several critical legal scholars – is analogous to ‘We
are Teachers of International Law’. Couched in liberal legal language, it talks in
very abstract terms about possible violations of international humanitarian law
in the conflict, ultimately avoiding any broader political questions, such as that
of taking sides.58
55. Gramsci, Selections, supra note 14 at 323. Gramsci’s position is not one exclusive to the Marxist
tradition, there are echoes of it in, for instance, Dworkin’s observation that jurisprudence (that
is to say the theory of law) ‘is the general part of adjudication, silent prologue to any decision
at law’ (that is to say the practice of law), in Ronald Dworkin, Law’s Empire (Hart Publishing:
Oxford, 2006) at 90.
56. Miéville, Between Equal Rights, supra note 25 at 300.
57. ‘UK must act to stop violations in Gaza’, The Guardian, 14 January 2009. <www.guardian.
co.uk/world/2009/jan/14/gaza-israel-palestine-letters>.
58. The letter states, for instance ‘As international lawyers, we remind the UK government that

In contrast to this is the rather trenchant letter drafted by Petter Hallward and
Slavoj Žižek.59 This letter, which was also signed by several of the signatories of
the first letter, did take sides, arguing that ‘[t]here is nothing symmetrical about
this war in terms of principles, tactics or consequences. Israel is responsible for
launching and intensifying it, and for ending the most recent lull in hostilities’.
As a consequence of this ‘[i]f we believe in the principle of democratic self-
determination, if we affirm the right to resist military aggression and colonial
occupation, then we are obliged to take sides ... against Israel, and with the people
of Gaza and the West Bank.’ International law did not feature heavily in this
letter, there were allusions to it via references to the 1967 borders and a refer-
ence to the ‘criminal use of force’, but ultimately it seems to figure much more
as a rhetorical device, than as one around which the intervention was organised.
The obvious point is that the second letter – in not organising the intervention
around international law, indeed only invoking it briefly and obliquely – is able
to avoid the perils of reinforcing liberal legalism. Equally, it remains an interven-
tion that is specifically targeted at a debate, putting forward a coherent position.
The problem here though, is that precisely because of this, one is left wondering
what the precise role of the legal scholar would be here? Is it simply to counsel
against the adoption of the tropes of liberal legalism in any intervention? Is it
to adopt David Kennedy’s route, or to use the event to point international law’s
complicity in the problems so identified?
It is as a result of this very real dilemma that many scholars turn to a purely
tactical understanding of legal struggle. Whilst ‘We are Teachers’ may be the most
sophisticated articulation of this position, it is one that resurfaces again and again
in critical scholarship. Many lengthier works follow a similar pattern. For the vast
majority of the piece there will be a historical and/or theoretical examination of
the ways in which international law has been deeply complicit with oppression,
exploitation and domination. Yet in the final part, there will be a paragraph to
the effect that – notwithstanding the previous critique – it is impossible to ‘give
up’ on international law. This does not usually make explicit reference to the
previous theoretical critique, but rather argues that since international law is the
it has a duty under international law to exert its influence to stop violations of international
humanitarian law in the current conflict between Israel and Hamas. A fundamental principle
of international humanitarian law is that the parties to a conflict must distinguish between
civilians and those who participate directly in hostilities. Attacks deliberately aimed at the
civilian population and civilian objects, by any means, are prohibited, as are attacks that do not
discriminate between civilians and combatants, or which are likely to cause harm to civilians
that is excessive when compared to the military advantage sought by the attack.’ There is very
little consideration as to whether either side may bear more political responsibility for the
problems of the conflict, or of the broader economic and political logics at play.
59. ‘Growing outrage at the killings in Gaza’, The Guardian, 16 January 2009. <www.guardian.
co.uk/world/2009/jan/16/gaza-israel-petitions>.

language of international relations (and debate about these relations) prudence

demands we continue to use it. Antony Anghie puts it well when he notes:
At the very least, I believe that the Third World cannot abandon international
law because law now plays such a vital role in the public realm and in the in-
terpretation of virtually all international events. It is through the vocabulary of
international law, concepts of ‘self-defence’, ‘human rights’ and ‘humanitarian
intervention’ that issues of cause, responsibility and fault are being discussed and
analysed, and interpretations of these doctrines which reproduce imperial rela-
tions must be contested.60
This particular move, although not necessarily couched in terms of strategy
and tactics, nonetheless reproduces the basic structure criticised above. In it,
prudence is once again confined to the short term, conjunctural sense. Yet one
cannot simply brush aside such a line of argument, especially when expressed in
these terms. If the alternative to the ‘strategic’ use of liberal legalism is ‘abandon-
ing’ international law (or some other form of legal nihilism) then liberal legalism
would seem to be only real option for those actually engaging in political struggle.
The problem is that this counterposition of liberal legalism as against legal
nihilism ultimately reproduces the rigid theory/practice divide outlined above, and
essentially insists that strategy and tactics exist to the rigid exclusion of one and
other. The particular form that this separation takes – associating the traditional
meaning of strategy with theory and ‘principle’, and tactics with practice and
‘prudence’ – means that strategic concerns simply disappear from the picture.61
In contrast to this would be a position that understood that ‘theory’ is never
simply an abstract consideration, but one which is always active in practice,
60. Anghie, Imperialism, supra note 22 at 318. Bhupinder Chimni argues similarly: ‘On the
other hand, IIs [international institutions] have undergone a quantitative and qualitative
transformation in the past two decades. The essence of these changes has been the use of
IIs to realize the interests of a TCC [transnational capitalist class]. IIs have come to play a
central, though retrograde, role so far as third world states and peoples are concerned. Indeed
a nascent global state has emerged under the influence of the TCC and powerful Northern
states. Under these circumstances, to suggest that renewalists are condemned to the role of
Sisyphus is perhaps to disarm third world peoples against the most significant contemporary
embodiments of imperialist policies and strategies.’ ‘International Institutions Today: An
Imperial Global State in the Making’, 15 European Journal of International Law (2004) 1-37
at 30. A similar argument can be made with respect to the articles cited supra note 23, which
– in arguing for actors to alter their bargaining power through altering legal rules – presuppose
the continued existence in which the bargaining takes place.
61. Clausewitz notes that there is quite a powerful tendency to ignore strategic concerns entirely:
‘It may sound strange, but for all who know war in this respect, it a fact beyond doubt, that
much more strength of will is required to make an important decision in strategy than in
tactics. In the latter we are carried away by the moment: a commander feels himself borne
along by a powerful current, against which he dare not contend without the most destructive
consequences.’ Clausewitz, War, Politics and Power, supra note 9, at 173.

whether implicitly or explicitly. From this would also flow the idea that long term,
structural considerations are not to be understood in opposition to ‘prudence’
but rather as specific structural and temporal articulations of prudence. On this
reading, the opposition would not be between ‘using the law’ (as a liberal) or
‘abandoning it’ (as a nihilist). Rather the question is on what terms is it possible to
use the law without fatally undermining longer term, structural considerations.62
This is the understanding that has driven work from within the Marxist tradi-
tion to which this article now turns.
4. Reform or Revolution? Both!

It has often been observed that there is very little work in the Marxist tradition
that has systematically sought to understand law.63 Although there is some truth
to this, there is at the same time a small but rich literature on the topic. This is the
case both in general jurisprudential terms,64 and more specifically – particularly
over the past decade – in terms of international law.65 Yet even if we exclude those
writings that explicitly address law, the question of the relationship between law
and revolutionary politics has been central to how Marxists have thought about
political action.
The rubric under which this question has played out is usually that of the
debates around reform and revolution. The central problem of these debates – to
62. China Miéville has argued that in fact the opposition between (neo-conservative) legal
nihilism and liberal legalism is in fact a form of symbiosis in which ‘[t]he liberal mainstream
has attacked the nihilist neocons for gravely injuring international law, and thus stressed
neoconservative power; and those nihilists in turn have complimented international law (and
by implication its advocates) by denouncing it as a mortal threat.’ Against this, he argues
that neo-conservatives are not simply nihilists, but have a nuanced approach to law, and that
liberal legalism is intensely bound up with imperialism. The point is that the false opposition
between ‘liberalism’ and ‘nihilism’ is an ideological symptom of the system itself. See China
Miéville, ‘Multilateralism as Terror: International Law, Haiti and Imperialism’, 19 Finnish
Yearbook of International Law (2008) 63-93 at 72.
63. See Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (Routledge
and Kegan Paul: London, 1979) at 21–26.
64. There are a few Marxist works dealing with ‘general jurisprudence’ and the list would include:
Evgeny Pashukanis, Law and Marxism: A General Theory (Ink Links: London, 1978); Anthony
Chase, Law and History (The New Press: New York, 1997); Karl Renner, The Institutions of
Private Law and their Social Functions (Routledge Kegan & Paul: London, 1949) and Olufemi
Taiwo, Legal Naturalism: A Marxist Theory of Law (Cornell University Press, 1996).
65. See, for example, Susan Marks (ed.), International Law on the Left: Revisiting Marxist Legacies
(Cambridge University Press, 2008); Miéville, Between Equal Rights, supra note 25; Bill
Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the
Possibility of Politics (Routledge-Cavendish: London, 2008); Rasulov, ‘The Nameless Rapture
of the Struggle’, supra note 7; Özsu, ‘The Question of Form’, supra note 7; Sonja Buckel and
Andreas Fischer-Lescano, ‘Gramsci Reconsidered: Hegemony in Global Law’, 22 Leiden
Journal of International Law (2009) 437-454.

what degree should revolutionary forces engage in action that is within the coor-
dinates of the existing order – is one that obviously has a great deal of importance
to this argument. Indeed, as argued above, the distinction between strategy and
tactics is one that is closely related to that of ‘reform’ and ‘revolution’. However,
as will be argued below, it is not simply that strategy is a synonym for revolution
and tactics for reform: rather it is the case that the Marxist tradition has used
the distinction between strategy and tactics to navigate the problem of reform
and revolution in a nuanced way. It should be noted that whilst these authors
all understand themselves as working from within the materialist tradition, the
insights they provide can also inform the ‘idealist’ strategy outlined above.
4.1. Work, Wages and Revolution: Marx’s Account of the Working

Day
Marx’s oeuvre is replete with considerations of the role that law could play in
revolutionary politics. We can see this in his somewhat fragmented considerations
of what the dictatorship of the proletariat might look like66 and in the various
programmatic statements that he proposed or adhered to.67 However, for the
purposes of this argument, what is most fruitful is Marx’s analysis of the role of
law in struggles around wages and the length of the working day.
Marx understands the relationship between capital and labour to be central
to the capitalist system. In basic terms, the capitalist is able to exploit his labour-
ers because the value of the commodities that they produce is more than that of
the value of their labour power. The capitalist pays the worker a wage that is less
than the value of the commodity he goes onto sell and the difference between
these two figures is surplus value. Assuming the fixed value of a given commod-
ity (which is determined at a social level), there are two ways in which the rate
of surplus value might be increased: firstly, wages can be reduced and secondly
workers can be made to produce more in a working day (either by making them
work longer, or work harder within a given day).
But this applies conversely too, and the balance of surplus value can be tipped
in favour of the working class by increasing their wages, or limiting the working
day. Thus, the questions of wages and the working day become objects of great
contention under capitalism. These struggles form the basic fabric of the class
struggle in its most spontaneous and ‘elementary’ sense in capitalist society. These
struggles are also always articulated in some legal framework: be it the employment
66. See Karl Marx, ‘The Critique of the Gotha Programme’, in Robert Tucker (ed.), The Marx-Engels
Reader (W.W. Norton: New York, 1978) 525-541 and Karl Marx, ‘The Civil War in France’, in
Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New York, 1978) 618-652.
67. The most obvious example here would be (written with Engels) the ‘Manifesto of the
Communist Party’, in Robert Tucker (ed.), The Marx-Engels Reader (W.W. Norton: New
York, 1978) 469-501, especially at 490-491.

contract or through direct legislation. The question that Marx had was what to
make of the significance of such struggles. In Value, Price and Profit he argued
that these struggles would have to be treated in a highly cautionary way, since
they necessarily presupposed the existence of the capitalist system, and simply
involved relative distributional changes:
[T]he working class ought not to exaggerate to themselves the ultimate work-
ing of these everyday struggles. They ought not to forget that they are fighting
with effects, but not with the causes of those effects; that they are retarding the
downward movement, but not changing its direction; that they are applying
palliatives, not curing the malady. They ought, therefore, not to be exclusively
absorbed in these unavoidable guerrilla fights incessantly springing up from the
never ceasing encroachments of capital or changes of the market. They ought to
understand that, with all the miseries it imposes upon them, the present system
simultaneously engenders the material conditions and the social forms necessary
for an economical reconstruction of society. Instead of the conservative motto:
‘A fair day’s wage for a fair day’s work!’ they ought to inscribe on their banner the
revolutionary watchword: ‘Abolition of the wages system!’68
Marx’s critique dovetails precisely with that outlined above. Fixation on the
day-to-day struggles, on their own terms, ends up precluding the transcendence
of the system that causes the problems in the first place. Against this, a demand
would have to be raised which would call for the destruction of the system.
However, what is interesting here is that Marx does not rigidly counterpose the
‘unavoidable guerrilla fights’ to the ‘revolutionary watchword’; rather he seems
to note that both need to be part of the struggle. Indeed, he argues earlier that
‘[b]y cowardly giving way in their everyday conflict with capital, they [the work-
ing class] would certainly disqualify themselves for the initiating of any larger
movement’.69 However, in this work he has not quite yet managed to say how
these might be articulated together.
It is in this respect that Marx’s seminal discussion of the regulation of the
length of the working day in Capital becomes relevant. Here Marx is much more
positive about the potential of the everyday struggle, arguing:
For ‘protection’ against ‘the serpent of their agonies’, the labourers must put their
heads together, and, as a class, compel the passing of a law, an all-powerful social
barrier that shall prevent the very workers from selling, by voluntary contract with
capital, themselves and their families into slavery and death. In place of the pomp-
ous catalogue of the ‘inalienable rights of man’ comes the modest Magna Charta
68. Karl Marx, Wage Labour and Capital and Value Price and Profit (International Publishers: New
York, 2006) at 61.
69. Ibid.

of a legally limited working-day, which shall make clear ‘when the time which
the worker sells is ended, and when his own begins’. Quantum mutatus ab ilo!70
What is vitally important here is that Marx argues the only way that this
law was able to be passed was because workers moved away from their isolated
individualism. The struggle for the limitation of the working day meant that the
working class had to come together as a class, and as such recognise their com-
mon interests, as well as their opposition to the capitalist class, it also required
a high degree of practical organisation and coordination. In other words, this
struggle was vital to the constitution of the working class as a political subject. In
Marx’s vision, such a political subject – the working class organised as a class-for-
itself – is the only vehicle that would be capable of overthrowing capitalist social
relations. In this way, a tactical intervention into the conjuncture – the struggle
for the limitation of the working day – is framed and directed by the strategic
goal of overthrowing capitalism. Rather than erecting an absolute opposition
between liberalism and nihilism or reform and revolution, Marx articulates a
truly strategic position.
4.2. The Goal is Everything: Luxemburg’s Critique of Reformism

The kernel of this position was taken up and developed in Rosa Luxemburg’s
polemic against Eduard Bernstein: Reform or Revolution. For a pamphlet that is so
strongly associated with advocating revolution as against reform it is interesting
that Luxemburg opens with an explicit denial of this very opposition:
At first view the title of this work may be found surprising. Can the social
democracy be against reforms? Can we counterpose the social revolution, the
transformation of the existing order, our final goal, to social reforms? Certainly
not. The daily struggle for reforms, for the amelioration of the condition of the
workers within the framework of the existing social order, and for democratic
institutions, offers to the social democracy an indissoluble tie. The struggle for
reforms is its means; the social revolution, its aim.71
Luxemburg’s point then is that it makes no sense to make a rigid distinction
between reform and revolution. This is because the only way in which a movement
in favour of the overthrow of capitalism could be built up and gain the strength
to do so is through the struggle for reforms. However, Luxemburg is at pains to
suggest that nevertheless there is a distinction between (what was then) the social
democratic movement and ‘bourgeois radicalism’ – and this was the question
of strategy. Luxemburg argues that the only way in which the social democratic
70. Karl Marx, Capital (Oxford World Classics, 1999) at 181-182.

71. Rosa Luxemburg, The Essential Rosa Luxemburg: Reform or Revolution and The Mass Strike
(Haymarket Books: Chicago, 2008) at 41.

movement is not simply one that engages in ‘a vain effort to repair the capitalist
order’ is in its strategic goal of overthrowing this capitalist order.72
Whilst there is no rigid distinction between reform and revolution; in or-
der for the social democratic movement to not simply collapse into ‘bourgeois
radicalism’, it was necessary that the tactical struggles for reform be pursued not
in their own sake, but precisely in order to build up this movement. Thus, the
particular tactics that are deployed, and the way in which they will be deployed,
must necessarily be shaped by this strategic goal. As David Harvey puts it ‘the
difference between a reformist and a revolutionary is not necessarily that you do
radical things all the time, but it is that at a given moment, you may all do the
same thing, i.e. demand living wage, but you do it with a different objective, and
that is as a long-term transition.’73
4.3. Towards Revolutionary Realpolitik: Lukács’ Leninism

The most comprehensive formulation of this line of thinking can be found in the
work of Georg Lukács. Lukács argues that ‘the position and significance of tactics
in the field of political action differ greatly in accordance with the structure and
historic-philosophical role peculiar to those parties and classes’.74 For Lukács, there
is a fundamental difference between revolutionary classes and other classes, and
this difference lies in their ultimate objective. Essentially, this would correspond
to the distinction between critical and liberal positions; the latter’s ‘ultimate objec-
tive’ is one that is a ‘moment within the given social reality’, whereas in the case
of the former this objective ‘transcends it’.75 In the case of the liberal approach,
the existing (legal) order is a ‘given principle which ... determines the scope of
any action’, in the case of the critical or radical approach the given order is simply
something to be taken into account for reasons of expediency.
We can understand this in terms of strategy and tactics. Lukács’ argument
means that liberals do not have to worry about strategic concerns in the same way
that critics do. Instead, their concerns are purely tactical, since they presuppose
the existing order in all of their actions. In contradiction to this, the only thing
that distinguishes the critical position is precisely that its ultimate objective is to
transcend the existing order. In order to remain critical, it is necessary that this
ultimate objective is immanent in everyday acts. As such tactical interventions
must be shaped by this strategic orientation:
This contrast helps greatly to elucidate the tactics of the revolutionary classes and
parties: their tactics are not determined by short-term immediately attainable
72. Ibid., at 42.

73. ‘A Conversation with David Harvey’, 5 Logos: A Journal of Modern Society and Culture (2006)
<www.logosjournal.com/issue_5.1/harvey.htm>.
74. Georg Lukács, Political Writings 1919-1929 (New Left Books: London, 1972) at 3.
75. Ibid., at 3.

advantages; indeed, they must sometimes reject such advantages as endangering

what is truly important, the ultimate objective. But since the ultimate objective
has been categorized, not as Utopia, but as reality which has to be achieved, positing
it above and beyond the immediate advantage does not mean abstracting from
reality or attempting to impose certain ideals on reality, but rather it entails the
knowledge and transformation into action of those forces already at work within
social reality – those forces, that is, which are directed towards the realization of
the ultimate objective. Without this knowledge, the tactics of every revolutionary
class or party will vacillate aimlessly between a Realpolitik devoid of ideals and an
ideology without real content.76
In this way Lukács diagnoses acutely some of the problems outlined above.
In conflating strategy and tactics to the exclusion of the former, critical scholars
have oscillated between a liberal realpolitik, and a structural critique which
serves as a legitimating factor (of ‘good intentions’) but is ultimately without
content. What he suggests is that the way forward is to understand the neces-
sity to frame tactics in terms of strategy. This double articulation: understanding
that strategic concerns are absolutely vital, and then they can only be expressed
through tactical interventions, is what Lukács calls revolutionary realpolitik.77
At the very least, this will entail not adopting those methods of intervening
in the conjuncture which – whilst successful on their own terms – undermine
the ultimate objective. Aside from this merely negative relation, Lukács argues
that every intervention in the concrete situation must be ‘related to a generally
correct appreciation of the whole historical process.’78 Concretely, this would
entail shifting the priority in a given intervention, not just to win on its own
terms, but to use that struggle to advance the ultimate objective, through the
construction of a movement, training its militants in struggle, connecting the
party to the class etc.79
76. Ibid., at 4.
77. Georg Lukács, Lenin: A Study on the Unity of his Thought (New Left Books: London, 1970)
at 72-88.
78. Ibid., at 83.
79. The fact that Lukács was writing about Lenin is not accidental here. Lenin was perhaps the
finest expositor (and practitioner) of the understanding of strategy envisaged in this article.
However, given the range and size of his corpus, it is beyond the scope of this article to discuss
this in any detail. One seemingly innocuous example though, would be that of Lenin’s writing
on the development of a newspaper. Whilst some might simply see a newspaper in terms of
propagandising, Lenin argued it would serve as a ‘collective organiser’, since the ‘mere technical
task of regularly supplying the newspaper with copy and of promoting regular distribution will
necessitate a network of local agents of the united party, who will maintain constant contact
with one another, know the general state of affairs, get accustomed to performing regularly
their detailed functions in the All-Russian work, and test their strength in the organisation
of various revolutionary actions. This network of agents will form the skeleton of ... [an
organisation] that is sufficiently large to embrace the whole country; sufficiently broad and
many-sided to effect a strict and detailed division of labour; sufficiently well tempered to be

What is most interesting about Lukács from the perspective of this paper
is that he explicitly attempted to understand how this might apply to law.
Lukács’ starting point is his standard ‘ultimate objective’, that of the abolition
of capitalism. He further argues that law is a ‘life-form’ created by capitalism.80
Consequently, as a strategic aim, law itself must be abolished, and this will frame
the tactical use of law in any given situation. For Lukács, the central point is
that the working class must learn to act without the life-forms of capitalism
‘inwardly influencing its actions’.81 The concrete manifestation of this is that the
working class must avoid fetishising the law, instead seeing both state and law
as ‘mere power factor[s]’82 whose importance is not derived from any moral or
historical essence. By consequence, law should be granted no more ‘importance
than any other external fact of life with which it is necessary to reckon when
deciding upon any definite course of action.’83 This means that the breaking
of law (or conspicuous illegality) should not be romanticised or accorded any
special importance, since this law would have ‘preserved its authority ... in an
inverted form’.84
For Lukács, the only way that this can proceed is when ‘[t]he question of
legality or illegality reduces itself then for the Communist Party to a mere ques-
tion of tactics, even to a question to be resolved on the spur of the moment’.85 In
this way, the law is accorded no special respect, and its form and structure is not
able to break up and block any social movement. It is simply an instrumental
consideration to be subordinated to the political needs of the moment. This is
the kernel of what I have elsewhere characterised as ‘principled opportunism’.86
Instantly though, a question arises – if Lukács is simply saying that we should
use law tactically (even if for strategic reasons), in what sense can this be said to
be different from the criticism of liberalism outlined above? Although the answer
to this question is not explicit in Lukács’ own account, it stems logically from
the fact that he is advocating a principled opportunism.
able to conduct steadily its own work under any circumstances, at all “sudden turns”, and in
face of all contingencies; sufficiently flexible to be able, on the one hand, to avoid an open
battle against an overwhelming enemy, when the enemy has concentrated all his forces at one
spot, and yet, on the other, to take advantage of his unwieldiness and to attack him when
and where he least expects it.’ Vladimir Lenin, ‘Where to Begin’ in Collected Works: Volume 5
(Foreign Languages Publishing House: Moscow, 1961) 13-24 at 22-23.
80. Georg Lukács, History and Class Consciousness: Studies in Marxist Dialectics (Merlin Press:
London, 1971) at 264.
81. Ibid.
82. Ibid., at 263.
83. Ibid.
84. Ibid. See also Nathaniel Berman, ‘Legitimacy Through Defiance: From Goa to Iraq’,
23 Wisconsin International Law Journal (2005) 93-125.
85. Ibid at 264.
86. Knox, ‘Marxism, International Law and Political Strategy’, supra note 7, at 433-434.

On the one hand, it is clear that Lukács is advocating an instrumental use of

law, linking it to rather conjunctural considerations and this is the sense in which
his position is opportunistic. However, he advocates doing this for principled
reasons, that is to say, in order to undercut both the ideological and structural
dimensions of law, so as to ultimately aim for its abolition. So in this sense, his
advocacy of a tactical approach is substantive. This would mean that law should
always be openly invoked instrumentally and openly subordinated to political con-
siderations, with the particular legal arguments changed whenever the particular
political needs change. These invocations are necessarily partisan, involving not
the defence of a law or a right in general but in order to support the movement
(and openly stated to be so).87
On this account, law should never be invoked as an independent considera-
tion: an intervention should never be conducted directly in the name of legality.
This is the way in which strategy shapes tactics, if the aim is to undermine liberal
legalism, appealing directly to the hold it has over people and their debates is
unacceptable. The full implications of such a position will be outlined below, but
one very obvious conclusion is that the kind of intervention embodied in ‘We
are Teachers of International Law’ is off the table.
5. Principled Opportunism Revisited

Lukács’ particular take on these issues is not without its problems. First and
foremost, he operates with a rather formalist and positivist notion of law: derived
at least partially from his Weberian heritage.88 Consequently, his critique of law
relies on an overly reified distinction between legal and illegal. This position ul-
87. Irina Ceric encapsulates this attitude perfectly in her account of ‘movement lawyers’ in the
context the Toronto G20, where she argues: ‘We are not ‘civil libertarians’ but active supporters
and/or members of social movements which come under attack by the state because they
challenge – through various means, including extra-legal ones such as direct action and civil
disobedience – the oppressive ways our society is organized.’ Irina Ceric, ‘Towards Praxis:
Movement Lawyers and Scholars as Organic Intellectuals’, unpublished paper presented at
Fourth Annual Conference of the Toronto Group for the Study of International, Transnational
and Comparative Law, at 4-5. Although this may sound like an unimportant consideration,
there are certainly a number of civil libertarians who will defend, for instance, the ‘right’ of
far right groups to ‘free speech’, see for instance Philippa Strum, When the Nazis Came to
Skokie: Freedom for Speech We Hate (University of Kansas Press, 1999).
88. He quotes Weber to the effect that ‘The modern capitalist concern is based inwardly above
all on calculation. It requires for its survival a system of justice and an administration whose
workings can be rationally calculated, at least in principle, according to fixed general laws, just
as the probable performance of a machine can be calculated.’, characterising the judge as ‘more
or less an automatic statute-dispensing machine in which you insert the files together with the
necessary costs and dues at the top, whereupon he will eject the judgment together with the
more or less cogent reasons for it at the bottom: that is to say, where the judge’s behaviour is
on the whole predictable’, Lukács, History and Class Consciousness, supra note 80, at 96.

timately depends on the kind of liberal reasoning criticised by critical scholars,

given that such a rigid distinction relies on the idea that the law is determinate.
As a consequence of this, Lukács (and his legal strategy) to some degree argues
that one might simply decide to ‘use’ or not ‘use’ law. But this almost entirely
ignores the fact that very frequently this will not be a choice. We are always and
already enmeshed in legal relations, and as such it cannot be said that there is a
simple ‘choice’.
Here, it is useful to briefly turn to the work of perhaps the premier Marxist
legal theorist, Evgeny Pashukanis. Here is not the place to recount his position
in any detail,89 but Pashukanis’ analysis is able to deepen and enrich Lukács’
strategy. Very simply, Pashukanis argues that law – as a specific form of social
regulation and dispute resolution – is generated by commodity exchange.90 His
basic argument is that in commodity exchange both parties to the exchange must
assume a position of formal, abstract equality – each must recognise the other as
having the capacity to own and exchange commodities. Therefore when disputes
arise within this relationship they must be solved in such a way as to preserve
this equality.91 With the development and spread of capitalist social relations the
commodity form comes to exercise a hegemonic influence over the entire social
field. Its logic comes to structure various aspects of social life, and accordingly,
this homology extends to the field of dispute resolution, with the legal form
embedding and further extending commodification.
The consequence of this argument is that under capitalism every sphere of
social life becomes increasingly juridified. On this account, within capitalist social
relations law is both pervasive and inevitable.92 Every action that we take is already
enmeshed in juridical relations and will have inevitable juridical consequences,
to simply deny this fact is neither here nor there. In this respect John Austin’s
brutal observation on natural law theory is apposite:
Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign
under the penalty of death; if I commit this act, I shall be tried and condemned, and
if I object to the sentence, that it is contrary to the law of God, who has commanded
that human lawgivers shall not prohibit acts which have no evil consequences, the
Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging
me up, in pursuance of the law of which I have impugned the validity.93
89. There are innumerable accounts of Pashukanis’ basic approach, but for some introductions see
Miéville, Between Equal Rights, supra note 25, at 75–105 and Knox, ‘Marxism, International
Law and Political Strategy’, supra note 7, at 291–292.
90. Evgeny Pashukanis, ‘General Theory of Law and Marxism’, in Piers Beirne and Robert Sharlet
(eds.), Pashukanis: Selected Writings (Academic Press, 1980) 37-131, especially at 40-90.
91. Miéville, ‘Between Equal Rights’, supra note 25 at 75.
92. Thanks to China Miéville for this formulation.
93. John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 2001) at 158.

Or to put it rather more crudely, if you don’t do the law, the law will do you.94
This slight reformulation of Lukács’ point is important, because the focus can-
not be the distinction between ‘legality’ and ‘illegality’ but rather, on the way in
which law and legal arguments are used.95 This adds an extra layer to the strategy of
principled opportunism. Whereas in Lukács’ argument, the primary issue is law as
an institutional phenomenon that one can choose to obey or not, in this version
we need to carefully distinguish between law as an institutional phenomenon (or
the terrain of juridical practices – courts, tribunals, lawsuits etc.), and the role of
law in framing political mobilisations. This is because – simply put – law in its
former guise is inevitable: whatever we do will have legal consequences and this
cannot simply be ignored. The latter though is rather different, whilst legal argu-
ment may be especially persuasive within capitalist social relations, the point still
stands that interventions should not be framed in terms of legality, because – here
at least – there is a choice as to ‘using’ the law or not.96 Thus, this first aspect of
principled opportunism still stands and the type of intervention typified by ‘We
Are Teachers of International Law’ remains strategically problematic.
What of the institutional dimension? As above, the strategic goal needs to
frame these tactical interventions. Again, slightly reformulating Lukács, prin-
cipled opportunism demands that the deployment of legal argument be openly
subjected to political exigencies, with different arguments being deployed when-
94. Thanks to Sundhya Pahuja for this formulation.

95. Pashukanis’ position is ultimately very close to Lukács’ arguing as he does that ‘[F]or the petit
bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience
to which supplants both the sober calculation of the forces and conditions of struggle and
the ability to use and strengthen even the most inconsequential victories in preparing for the
next assault. The revolutionary nature of Leninist tactics never degenerated into the fetishist
denial of legality; this was never a revolutionary phrase. On the contrary, at given historical
stages, he firmly appealed to use those “legal opportunities” which the enemy, who was merely
broken but not fully defeated, was forced to provide. Lenin knew not only how mercilessly to
expose tsarist, bourgeois etc. legality, but also how to use it, where it was necessary and when it
was necessary.’ See ‘Lenin and the Problems of Law’, in Beirne and Sharlet (eds), Pashukanis:
Selected Writings (Academic Press, 1980)133-164 at 138.
96. Susan Marks criticises China Miéville for overly reifying the distinction between the ‘inside’
and ‘outside’ of international law since ‘public opinion is not simply a response to or judge of
international legal developments; it partly constitutes those developments. Miéville’s account
gives very little sense of what might be called the public-cultural dimensions of international
law, its mutually determining relationship with the media, and so on. The sharp line he draws
between international law’s inside and its outside does not seem to do justice to his own
characterization of international law as a part of political processes.’ Marks, ‘International
Judicial Activism’, supra note 7, at 211. Her critique here is largely correct, but one must
be equally careful not to go too far in the other direction, whilst public opinion clearly does
have an influence on legal processes (and vice versa), the above analysis suggests the need to
draw at least some distinction between the two. This is especially because public opinion can
presumably affect legal outcomes even when that opinion is not directly mobilised through
a rhetoric of legalism.

ever necessary. As such, legal argument is being geared towards the strategic aim
of building a movement to overthrow capitalism, rather than on its own terms.
On the one hand, this will involve defensive struggles, where legal argument is
deployed in order to defend political activists when the state seeks to attack them.
To give an example in terms of the Iraq war then, international legal argument
could be involved to defend activists against criminal charges for sabotaging
military facilities.97 Equally – provided rhetorically this is characterised as being
for instrumental reasons – one might pursue a legal claim in order to attempt to
prevent an action, or ‘punish’ those involved with it. This could involve contesting
the legality of certain state practices – particularly those which might be said to
violate international human rights conventions – in order to publicly reveal these
practices, and perhaps to constrain their future use (thus giving the movement
a greater ability to organise).
However, although such institutional uses of the law are aimed at something
other than legal struggle for its own sake, they nonetheless remain ‘collusory’
in the sense that the Jacques Vergès defined it.98 By this, Vergès means a trial
in which the accused respects the established public order, by arguing through
its legal terminology. Whilst the ultimate aim may be to transcend law, and the
particular practice geared towards it, in an immediate sense it remains within the
logic of the law. Against this, Vergès proposed his ‘strategy of rupture’.99 Here,
rather than simply using legal argument for the purpose of advancing revolutionary
goals the legal situation is used to directly promote political goals. In this situa-
tion, the trial is used ‘less to acquit the accused than to illuminate his ideas’,100
the ruptural strategy uses the spectacle and publicity of law, to directly undermine
the law by launching a political a political attack on the existing order. As he says
of Dimitrov (the Communist tried by the Nazis for allegedly conspiring to start
the Reichstag fire) ‘he attacked the facts, the witnesses, the investigation, but not
to defend himself, to attack, to demolish’.101
97. Here, the argument would be that if a given act is unlawful in international legal terms, force
may be used in order to prevent it under Section 3 of the Criminal Law Act 1967 (or any
equivalent which allows force to be pursued in order to prevent illegal action from being carried
out), obviously this was unsuccessful in the case of R v. Jones [2006] UKHL 16. However, it was
rather more successful in the Northern Irish courts, where in R v. McCann and Others [2008]
NICA 25, a similar defence was contemplated in relation to the Israeli assault on Lebanon.
98. Jacques Vergès, De La Stratégie Judiciaire (Les Éditions de Minuit: Paris, 1968) especially at 19
(all quotes from this work are translated by this author); see Martti Koskenniemi, ‘Between
Impunity and Show Trials’, 6 Max Planck Yearbook of United Nations Law (2002) 1-35, at
26–32 and Emilios Christodoulidis, ‘Strategies of Rupture’, 20 Law and Critique (2009) 3-26
for overviews of Vergès’ work, although both suffer from not quite situating Vergès within the
political tradition of radical Third World Marxism to which he then belonged.
99. Verges, De la Stratégie Judiciaire, supra note 98 at 19.
100. Ibid., at 104
101. Ibid., at 108

The example that is frequently used is Vergès’ defence of Klaus Barbie. But
perhaps most interesting is his account of the various Third World struggles that
took place through the medium of international law. Take for example, the is-
sue of torture during the Algerian war of independence; Vergès argues that the
Algerian National Liberation Front did not raise the issue of torture in order to
show that individual rights had been violated. Rather, the demand was raised
to show that torture was an inseparable and inevitable consequence of French
colonialism, aimed at destroying the Algerian people. In this way the attempt was
made to use the publicity of the trial to mount a directly political critique of
colonialism. Indeed, for Vergès the ultimate example of this was Fidel Castro’s
trial of those involved in the Bay of Pigs, where the trial was merely a staging
point for a political ‘lesson’:
The dialogue with the prisoners had an arbiter: the people. It was to them that
the revolution and counter-revolution spent four hours giving an account. This
pure trial, stripped of all judicial forms, becomes a lesson in political science.102
Vergès’ vision might be said to be the purest instantiation of principled op-
portunism. It recognises the centrality and importance of law to capitalism, but
seeks to use this centrality to directly undermine both capitalism and the law. In a
very immediate sense, strategy is manifested through tactics. Unfortunately, Vergès
is perhaps slightly too dismissive about the prospects of ‘collusory’ trials, arguing
that ‘[m]ethods cannot be different from the goal’ and consequently reformists and
revolutionaries ‘cannot defend themselves in the same way’.103 Vergès essentially
comes very close to collapsing strategy and tactics here, misunderstanding that a
collusory trial might itself further the agenda of overthrowing capitalism (and law)
but in a more mediated sense.104 Equally, he does not recognise that an adherence
‘inside’ the trial to the existing order, could be matched by defiance ‘outside’ of
it. This is likely because Vergès was writing in a revolutionary conjuncture, where
the overthrow of the existing order was at least a real possibility.105 Given that
102. Ibid., at 119

103. Ibid., at 176
104. Thus, as Koskenniemi notes, the trial of Dimitrov was one in which ‘[t]he sole objective in
the trial, as described by Verges, was to advance the cause of the proletariat. Everything else,
including Dimitrov’s own fate – he refused to rely on an alibi of being away from Berlin on
the night of the fire – was secondary.’. Koskenniemi, ‘Between Impunity and Show Trials’,
supra note 98, at 27. But of course it may be that the best way to ‘advance the cause of the
proletariat’ was to make sure that Dimitrov did not die in a fascist jail, which might require
organising a defence of collusion.
105. Indeed, as Vergès explicitly argues: ‘From 1917 to now, and especially since the end of the
Second World War and the victory of the Chinese Revolution, there has been a profound
acceleration in ruptural trials. Two irreducible conceptions compete globally, each backed
by men, countries and organisations. The accused, even in chains, present themselves in the
name of another order and another world.’. Vergès, De La Stratégie Judiciaire, supra note 98,

the very distinction between strategy and tactics is to some degree premised on
non-revolutionary situations one can see how this could occur.
It therefore seems wisest to understand principled opportunism as a basic
tenet that law is not to be used on its own terms, but rather in furtherance of a
strategic goal (which includes transcending liberal legalism). Within this, there
is a continuum between the more defensive ‘collusory’ aspects, and the more
offensive ‘ruptural’ aspects, the calculation of which to use will be a practical
political one.106
6. Conclusion
This article has attempted to redress a common problem in critical scholar-
ship. This problem is the use of the term ‘strategy’. It began by reconstructing
the distinction between strategy and tactics, arguing that strategy refers to the
achievement of long term, structural (or organic) goals, whereas tactics refers
to the achievement of short term, conjunctural ones. It was then argued that
contemporary critical legal scholarship has tended to define ‘strategy’ in tactical
terms and consequently paid little attention to long term, structural goals. In so
doing, what was described as a ‘strategic’ adoption of liberal legalism was in fact
an implicit capitulation to liberal legalism.
The article went on to note that this exclusion of strategy was the linked to
the idea that there in legal interventions there was a rigid choice between legal
nihilism on the one hand and liberal legalism on the other. The article then
turned to the Marxist tradition, to show that this was a false dilemma, since
actualising strategic concerns does not necessarily mean jettisoning practical
interventions in everyday legal struggles, but rather framing these struggles in
at 183. It was precisely this fact that meant that the ruptural trial was no longer simply a
method to spread ideas, but could also be successful in securing an acquittal. In respect of
Dimitrov, Vergès writes that ‘he was no longer alone [as Socrates was] but a militant’, and
that his release was secured in part ‘because the USSR had become a great power, such that
in Western countries a solidarity movement arose ... to demand his release’ and henceforth
a defendant can ‘put forward his ideas and, at the same time, thanks to the solidarity of his
comrades, eventually force the court to retreat and release him’, ibid., at 105.
106. It should go without saying that the arguments put forwards here are in no sense entirely ‘novel’
and – to some degree at least – find themselves reflected in the practices of various activists
and social movements. In this vein, Honor Brabazon’s work on the use of law by the Bolivian
Landless Movement (MST) shows rather convincingly that their use of law precisely attempts
to use it but not on its own terms. However, and it is at this point that the importance of theory
reappears, she further argues that the activists have not fully worked out their relationship
with the law, at times investing it with too much hope; ultimately perhaps – in the idiom
of this article – they are not principled enough in their opportunism. See Honor Brabazon
‘The Law, the Land, and Capital: Agrarian Reform and Resistance in Contemporary Bolivia’,
unpublished paper, presented at Towards a Radical International Law, London, 2011.

terms of the overall strategic goal. It was argued that a position of ‘principled
opportunism’ offered the best scope for intervening in conjunctural legal de-
bates, without losing sight of the strategic goal.
The question remains though, what type of political intervention can criti-
cal scholars make? Here, there are several points that can be made. Firstly, in a
negative sense they can adopt the mode of intervention that David Kennedy
suggests, pointing out that the liberal left’s embrace of legal argument is prob-
lematic. This could go further than Kennedy’s ‘international law doesn’t know
what it’s doing here folks’, and rather point out that international law ‘knows
exactly what it is doing’ and is an integral part of our exploitative and oppres-
sive reality.107 Secondly, and in a linked vein, critical scholars can help shape
the direction of campaigns of other radicals, who often cleave to a rhetoric of
liberal legalism, seemingly by default. In this way, critical scholars can attempt
to shape the debate, without reinforcing the very legalism which needs to be
undermined. Once again, whilst principled opportunism understands the
constitutive and pervasive role of law as a social form (and its unavoidability),
reinforcing this through framing public political interventions in primarily
legal terms is a problem.
This brings us onto the more positive sense in which critical scholars may
play a role. Whilst obviously not advocates, critical scholars do, to some degree,
hold themselves out as ‘experts’ in international law and certainly any public
interventions rely on claiming to possess this expertise. There are legal arguments
or connections that they can provide to activists in their opportunist use of law.
This may not be the primary role in which legal academics see themselves, but
they may in fact be in a better position to do this than practitioners, freed as they
are from some of the formal ethics of the professional lawyer.108
107. See Rasulov, The Nameless Rapture of Struggle, supra note 7 for a comprehensive account of
some of the tasks that critical lawyers might undertake in mapping relationship between
international law and contemporary global capitalism, especially at 282-294.
108. For example John Hendy QC, a Vice President of the Haldane Society of Socialist Lawyers,
responded to the question ‘Is it important for lawyers to take a political stand?’ with the answer
‘Not in their professional work, no. I’ve always thought the notion of a left-wing barrister is an
absurdity ... Of course it’s nice to represent people with whom you sympathise and that would
be true whether they’re trade unionists or people who are disabled or subject to any form of
injustice, it’s just a nice feeling. But I think the cab-rank rule is far more important. You don’t
ask what someone’s politics or religion are before you accept a brief ’, Russell Fraser and Ripon
Ray, ‘Interview with John Hendy’, 55 Socialist Lawyer (2010) 16-20, at 20. One can speculate
on the reasons for this: whether it is to do with the immersion into the (liberal) ideology of the
law, which is much stronger in legal practice, or to do with more mundane material reasons
(one cannot afford to be political), or simply an issue of the internal disciplinary measures of
the profession. But in any case, it suggests the possibility that scholars may occasionally be
more able to be actively political in their legal ‘practice’.

This ultimately leaves critical scholars in a much less important position than
some accounts would imply. Moreover, it suggests that critical scholars need to
focus more in the ways in which their ‘critique’ can reach a broader community
of activists and political actors.109 But perhaps this is the price of taking theory
seriously.
109. Rasulov argues that critical legal scholars must pay greater attention to how they write so as to
produce ‘easily communicable, analytically accessible statements that will enable the forging
of durable coalitions with the most practically active segments of the broader international
political arena.’ Rasulov, ‘The Nameless Rapture of Struggle’, supra note 7, at 280. Similarly,
Ceric argues that one of the key tasks of organic (legal) intellectuals is to translate critical
(legal) theory in such a way that it can inform the practice of activists. Ceric, ‘Towards Praxis’,
supra note 87, at 8.

Strategy and Tactics

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Strategy and Tactics

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Strategy and Tactics

KEYWORDS: strategy, tactics, Marxism, critical legal studies, international legal

By rushing into sordid reformist compromises or pseudorevolutionary collective

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Spivak become relevant. As will be argued below, Spivak’s strategic essentialism

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2. The Anatomy of a Distinction

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2.2. Organic and Conjunctural

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to Antonio Gramsci’s distinction between organic and conjunctural moments

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3. Strategic essentialism redux

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decisions are political, the indeterminacy thesis necessarily implies a political

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3.2. We are Strategists?

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3.2.2. The Meaning of Strategy

35. Wolf Blitzer, ‘Search for the “smoking gun”’, <http://articles.cnn.com/2003-01-10/us/wbr.

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of ‘strategy’ underpinning such interventions. The piece – ‘We are Teachers of

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43. Clausewitz, War, Politics and Power, supra note 9, at 175.

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45. Ibid., at 368-369.

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that would necessitate intervening in liberal legal terms. Traditionally, such a

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of understanding ‘strategy’ in essentially tactical terms seems to mean always strug-

3.3. A Tale of Two Letters, or Taking Theory Seriously

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language of international relations (and debate about these relations) prudence

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4. Reform or Revolution? Both!

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4.1. Work, Wages and Revolution: Marx’s Account of the Working

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4.2. The Goal is Everything: Luxemburg’s Critique of Reformism

70. Karl Marx, Capital (Oxford World Classics, 1999) at 181-182.

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4.3. Towards Revolutionary Realpolitik: Lukács’ Leninism

72. Ibid., at 42.

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advantages; indeed, they must sometimes reject such advantages as endangering

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On the one hand, it is clear that Lukács is advocating an instrumental use of

5. Principled Opportunism Revisited

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timately depends on the kind of liberal reasoning criticised by critical scholars,

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94. Thanks to Sundhya Pahuja for this formulation.

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102. Ibid., at 119

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