Bader, Michael

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Working toward the world we want tolive inMichael Bader 2020-06-15T09:00:37Introduction to the Book Symposium on “The Corporation, Law and Capitalism: ARadical Perspective on the Role of Law in the Global Political Economy” (Brill 2019 &Haymarket 2020) The BookGrietje Baars’ recently published book The Corporation, Law and Capitalismis a powerful intervention on multiple accounts. Baars’ study spearheads andcomplements a newly revived Marxist legal tradition in the footsteps of Soviet legaltheorist Evgeny Pashukanis, whose work on “The General Theory of Law andMarxism” (1924) pioneered the commodity-form theory of law. Pashukanis’ mainargument is that the commodity form and the legal form follow the same logic, thelogic of capital. China Miéville’s Between Equal Rights (2004) took up the challengeto comprehensively bring this theoretical endeavor into the realm of international lawand contemporary international legal debates. With some modifications to Miéville’sinterpretation (p. 19) and a historical-material lens, Baars takes their readers on ajourney to rediscover corporate power in today’s world.The Corporation, Law and Capitalism traces the evolution of corporate legality fromits inception in colonial times through the Second World War Trials of industrialistsin Nuremberg and Tokyo to contemporary debates of corporate accountability andconcludes that “emancipation from corporate power cannot be achieved throughlaw” (p. 13, find a condensed version of this argument here). Baars’ exploration ofcorporate accountability, focusing mainly on international criminal law, is not solelya brilliant theoretical endeavor based on a detailed historical account; but further,the book aims to close a gap between theory and practice. It responds to activistlawyer Michael Sfard’s call to academics  to “zoom out and inspect the internal legalbattlefield from a high altitude, where a single victim cannot be identified, but trendsand systematic failures may be revealed” (Preface XI).Baars’ book shakes up theory-blind narratives that posit law and the corporation asnatural phenomena, rather than socio-legal constructs that can be remodeled orovercome. Both the theoretical framework of the book as well as its methodology– inspired by Bertell Ollman’s “Dance of the Dialectic” – enable Baars to reflecton international law and the corporation from a rare place of legal writing, a placethat dares to imagine a world unconfined by the barriers of legal language. This isboth the beauty and power of Baars’ work: It is underpinned by the conviction that adifferent world is, indeed, possible.- 1 -Instead of seeking corporate accountability in order to tame “capitalism’s mainengine”, the corporation, and its grotesque record of oppression, death anddestruction, Baars calls on their readers to “work on the world we actually want tolive in” and concludes that “our resistance must turn against the concept of privateproperty, against capitalism and against law: away from legal emancipation towardhuman emancipation” (p. 379). Of course, this does not entail to completely turnaway from law for social justice and change – at least not in the current moment.As Rob Knox explains “[e]very action […] we take is already enmeshed in juridicalrelations and will have inevitable juridical consequences” or with Sundhya Pahuja“if you don’t do the law, the law will do you” (both found here). But the commodity-form theory of law and its materialist account of (international) law pointedly clarifiesthe limits of law´s engagement for transformative change: (international) law cannotfundamentally challenge the status quo, one of which it forms part and parcel.Taking Baars’ work as a point of departure and thinking with Rob Knox, thecommodity-form theory of law “invites us to think [more] carefully about how wemight use international law” against corporate power. Pashukanis himself explainsin Lenin and the Problems of Law that “[t]he revolutionary nature of Leninist tacticsnever degenerated into the fetishist denial of legality; this was never a revolutionaryphrase. 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”. What Baars in their book posits as “resistance” (through law)against corporate power can therefore not be overstated: Law and legal knowledgeoffer crucial opportunities and momentum for redress, protection as well as sites forreformist struggles and, in the best-case scenario, for emancipatory empowerment.But, and this is how I read Baars’ argument, what law in its current form falls shortof is to offer emancipatory solutions to world-making. Instead of presenting realsolutions to the world´s most pressing issues, law (including human rights law)conceals the root causes of human suffering rather than to address and transformthem. What Baars shows is that a focus on technical problems and solutionsis not enough to challenge corporate power and joins Miéville´s argument that“[t]o fundamentally change the dynamics of the system it would be necessarynot to reform the institutions but to eradicate the forms of law – which means thefundamental reformulation of the political-economic system of which they areexpressions”. Instead of more law, one could conclude, we need less corporation. The SymposiumFor this week’s symposium we have assembled a variety of contributions thatengage with the book, from both scholars and (legal) activists who in their workaddress “the question of the corporation.”Marisa McVey will start us off with a discussion on the book’s contribution to (orcritical intervention in) business and human rights scholarship and practice. Sheconcludes that Baars “provides us with two intellectual choices: despair; or self-- 2 -reflection on the role our own work plays in the congealment of law and capitalism,and our fixation on the ideology of corporate accountability in its current form.”Johan Horst discusses the commodity-form theory of law as the main theoreticalplank of the book and assesses critically “whether the book narrows the historicalformation of law, the constitutive role of law for economic exchange relations and theemancipatory potential of law too much to one particular reading, so that importantaspects are lost from focus in each case.”Hannah Franzki, focusing her review primarily on the book’s historical (re-)narrationof the Nuremberg Trial and the proceedings against economic actors, finds that “byjuxtaposing extensive material in such a way as to reveal the very specific nature ofthe current academic and political debate on corporate responsibility, Baars presentsa critical examination of the role of international law in the cementing of capitalistproduction and exploitation relations that is well worth reading.”Klaas Eller’s review will situate Baars’ study in broader debates about the complexdynamics of corporate capitalism. He asserts that, “[i]mportantly, in Baars’ account,the legal form becomes pervasive both in the inner workings of the law and beyond,namely as a legal ideology sustaining preconceptions of power and telos of the stateand the role of business in society.”Miriam Saage-Maaß, a human rights lawyer and activist, critically discusses Baars’concluding call to their readers to turn resistance “against law: away from legalemancipation towards human emancipation” (p. 379). Saage-Maaß holds that“lawyers should use Baars’ and other criticisms to evaluate their work, and take itas an opportunity to reflect on their privileges and the power-imbalances betweenthemselves and their clients, as well as potential or actual discrepancies between theproclaimed goals of their advocacy and its real effects.”Last but certainly not least, Grietje Baars will respond to this week’s contributions.We are looking forward to a stimulating discussion of a groundbreaking new bookthat should form part of any reading list on the corporation in the 21st century. Michael Bader is a Research Fellow at ECCHR’s Business and Human Rightsprogram with a focus on corporate exploitation in global supply chains and an editorat Völkerrechtsblog. Cite as: Michael Bader, “Working toward the world we want to live in”,Völkerrechtsblog, 15 June 2020.- 3 -

Working toward the world we want to live in

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Working toward the world we want to live in

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