1 L. Trotsky, The Revolution Betrayed: What is the Soviet Union and Where Is It Going?, trans. M. Eastman (1937), 54.

2 See, e.g., E. M. Cioran, The Fall into Time, trans. R. Howard (1970), 186.

3 E. M. Cioran, Anathemas and Admirations, trans. R. Howard (1991), 256.

4 Ibid.

5 Ibid.

6 Ibid.

7 Ibid.

8 K. Llewellyn, The Bramble Bush: On Our Law and Its Study (1930).

9 See, famously, R. Dworkin, Taking Rights Seriously (1977), ch. 4.

10 J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg (1998), 211–33.

11 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), 615–16.

12 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135, Art. 40, at 168–9.

13 C. Schmitt, The Concept of the Political, trans. G. Schwab (1996), especially at 26–7, 37. Such a strategy is naturally fraught with difficulty: against a depoliticized functionalism he saw as symptomatic of nihilism, Schmitt often resorted to a neo-romantic irrationalism that mythologized ‘the people’ as the driving force of ‘the political’. See, e.g., C. Schmitt, Constitutional Theory, trans. J. Seitzer (2008), 125–35, 140–6. Even so, Schmitt's account of the constituent power of ‘the people’ can be read in the light of radical democratic theory; from a voluminous literature, see especially the spirited reconstruction in A. Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (2008), ch. 4.

14 A notorious quandary, and one that has invited a barrage of ‘solutions’: for a famous list see Schachter, O., ‘Towards a Theory of International Obligation’, (1967–8) 8 Virginia Journal of International Law 300Google Scholar, at 301.

15 See especially R. B. Pippin, Modernism as a Philosophical Problem: On the Dissatisfactions of European High Culture (1999), 163–7, 176–9.

16 M. Craven, The Decolonization of International Law: State Succession and the Law of Treaties (2007), 21.

17 Abi-Saab, G., ‘The Third World and the Future of the International Legal Order’, (1973) 29 Revue égyptienne de droit international 27Google Scholar, at 38–9.

18 M. Bedjaoui, Law and the Algerian Revolution (1961), 245.

19 M. Bedjaoui, Towards a New International Economic Order (1979), 138–40, 236–40.

20 B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003), 89–94. Consider the following passage: ‘If we venture to sketch out the future trend of this system of norms, we could say that international law will probably no longer be the expression of relations of domination which are inegalitarian or hegemonistic . . . The principles of equity and solidarity will increasingly be the basis for the elaboration and observance of norms which allow room for corrective or compensatory inequality to enable the Third World States to grow.’ Bedjaoui, supra note 19, at 249.

21 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001), 484.

22 Klabbers, J., ‘The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity’, (2005) 1 Journal of International Law and International Relations 35Google Scholar, at 47.

23 F. A. Boyle, World Politics and International Law (1985), 17.

24 One could point to any number of developments, perhaps most influentially constructivism, but here I have in mind recent efforts to rewrite the history of international relations – both as a discipline and as an object of analysis – on the back of historical materialism and critical social theory. See especially B. Teschke, The Myth of 1648: Class, Geopolitics and the Making of Modern International Relations (2003); Guilhot, N., ‘The Realist Gambit: Postwar American Political Science and the Birth of IR Theory’, (2008) 2 International Political Sociology 281CrossRefGoogle Scholar.

25 Koskenniemi, M., ‘Miserable Comforters: International Relations as New Natural Law’, (2009) 15 European Journal of International Relations 395CrossRefGoogle Scholar, at 406 ff.

26 And US legal scholarship too. For one recent discussion, see J. R. Hackney Jr, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (2007), especially chs. 2, 3.

27 From Julius Stone's hyperbolized presentation of Max Huber's sociological jurisprudence: see J. Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes and War-Law (1954), 40 (note reference omitted).

28 A. Badiou, ‘Against “Political Philosophy”’, in Metapolitics, trans. J. Barker (2005), 10, at 15.

29 Cf. R. Geuss, Philosophy and Real Politics (2008), 99.

30 S. Žižek, ‘Resistance is Surrender’, London Review of Books, 15 November 2007, 7, available at www.lrb.co.uk/v29/n22/zize01_.html (last accessed 1 March 2010).

31 Ibid. For a fuller exposition see S. Žižek, In Defense of Lost Causes (2008), 337–8, and ch. 7 generally.

32 This is a point about law's operational form and not its ‘formal ideal’, as even sympathetic readers sometimes took it to be; see, e.g., Fuller, L. L., ‘Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory’, (1949) 47 Michigan Law Review 1157CrossRefGoogle Scholar, at 1161 (arguing that, for Pashukanis, ‘[t]he ideal of law is realized at the same time as the ideal of the market’). For Pashukanis's own exposition, see E. Pashukanis, ‘The General Theory of Law and Marxism’, trans. P. B. Maggs, in Pashukanis, Pashukanis: Selected Writings on Marxism and Law, ed. P. Beirne and R. Sharlet (1980), 37.

33 ‘Sovereign states co-exist and are counterposed to one another in exactly the same way as are individual property owners with equal rights.’ See ‘International Law’, trans. P. B. Maggs, in Pashukanis, Selected Writings, supra note 32, at 168, 176.

34 Miéville offers a succinct explanation of this point elsewhere: ‘It is possible to accept that international law is law, that it is always part of the international political process, and yet argue that it cannot and will not act to further a “just world order”.’ C. Miéville, Between Equal Rights: A Marxist Theory of International Law (2006), 25 (emphasis in original).

35 Including, as he has stressed elsewhere, co-opted elites on the politico-economic periphery: B. S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, in A. Anghie et al. (eds.), The Third World and International Order: Law, Politics and Globalization (2003), 47, at 61.

36 A classic touchstone – to which Cutler also refers (p. 218) – being the analysis offered by Klare, for whom ‘[a] view which treats legal practice as inherently coercive and instrumental, as an alienated “otherness,” cannot ground a theory of the institutional forms of an emancipated society.’ Klare, K., ‘Law-Making as Praxis’, (1979) 40 Telos 123CrossRefGoogle Scholar, at 135.

37 This can be read as a radicalization of her earlier call for ‘an alliance between international law and democracy against neo-colonialism’, a reactivation of the drive for enhanced inclusiveness as against ‘low-intensity democracy’. S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000), 102 (emphasis in original).

38 Who offer a post-Marxist theory of the constitution of hegemony as ‘an articulatory practice which constitutes and organizes social relations’ in an effort to demonstrate that ‘[t]he task of the Left . . . cannot be to renounce liberal-democratic ideology, but on the contrary, to deepen and expand it in the direction of a radical and plural democracy’. E. Laclau and C. Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (2001), 96, 176 (partly de-emphasized from original).

39 This is not far from that combination of partisanship and ethical absolutism so often found in Marxian theory; see, e.g., A. Callinicos, ‘Leninism in the Twenty-First Century? Lenin, Weber, and the Politics of Responsibility’, in S. Budgen, S. Kouvelakis, and S. Žižek (eds.), Lenin Reloaded: Toward a Politics of Truth (2007), 18, at 36.

40 For original materials see, e.g., V. I. Lenin ‘The Right of Nations to Self-Determination’, in Lenin: Collected Works, Vol. 20, trans. B. Isaacs and J. Fineberg (1972), 393; Lenin, ‘The Revolutionary Proletariat and the Right of Nations to Self-Determination’, in ibid., Vol. 21, trans. D. Walters and R. Cymbala (1974), 407. And for a powerful, if heterodox, illustration, see S. Galiev, ‘The Social Revolution and the East’, in A. A. Bennigsen and S. E. Wimbush (eds.), Muslim National Communism in the Soviet Union: A Revolutionary Strategy for the Colonial World (1979), 131.

41 See, e.g., B. Rajagopal, ‘Counter-hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’, in R. Falk, B. Rajagopal, and J. Stevens (eds.), International Law and the Third World: Reshaping Justice (2008), 63.

42 See, e.g., J. Tully, ‘On Law, Democracy and Imperialism’, in Public Philosophy in a New Key (2008), II, 127, at 143–9; B. Bowden, The Empire of Civilization: The Evolution of an Imperial Idea (2009), 84–6, 146–7.

43 U. S. Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (1999), ch. 3.

44 K. Marx, ‘The British Rule in India’, in K. Marx and F. Engels, Pre-capitalist Socio-economic Formations: A Collection (1979), 69, at 75–6. But see the ‘clarification’ in A. Ahmad, In Theory: Classes, Nations, Literatures (1992), ch. 6.

45 F. Engels, ‘The Magyar Struggle’, in K. Marx and F. Engels, The Collected Works of Karl Marx and Frederick Engels, Vol. 8 (1977), 227, at 234 (emphasis removed).

46 Marks, supra note 37, at 144 and similarly 118.

47 ‘Formalism does, as a rule, harm the weak more than it harms the strong.’ A. Rasulov, ‘International Law and the Poststructuralist Challenge’, (2006) 19 LJIL 799, at 806 (emphasis in original).

48 Marks, S., ‘False Contingency’, (2010) 62 Current Legal Problems 1CrossRefGoogle Scholar, at 13 and generally.

49 See, e.g., Balbus, I. D., ‘Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law’, (1977) 11 Law and Society Review 571CrossRefGoogle Scholar, especially 571–3.

50 ‘A rigorous science of the law . . . frees itself from the dominant jurisprudential debate concerning law, between formalism, which asserts the absolute autonomy of the juridical form in relation to the social world, and instrumentalism, which conceives of law as a reflection, or a tool in the service of dominant groups.’ Bourdieu, P., ‘The Force of Law: Toward a Sociology of the Juridical Field’, trans. Terdiman, R., (1987) 38 Hastings Law Journal 805Google Scholar, at 814 (emphases in original). It should be noted that Bourdieu distinguishes his project from ‘relative autonomy’ Marxism, and Althusserianism in particular, which he regards as a species of instrumentalism. Ibid., at 814–15.

51 R. Knox, ‘Marxism, International Law, and Political Strategy’, (2009) 22 LJIL 413, at 433.

52 ‘Thus the only possible foundation of law is to be sought in history, which, precisely, abolishes any kind of foundation.’ P. Bourdieu, Pascalian Meditations, trans. R. Nice (2000), 94.

53 N. Bobbio and D. Zolo, ‘Hans Kelsen, the Theory of Law and the International Legal System: A Talk’, (1998) 9 EJIL 355, at 358.

54 G. Lukács, Lenin: A Study on the Unity of His Thought, trans. N. Jacobs (2009), 73.

55 See, famously, Cohen, F., ‘Transcendental Nonsense and the Functional Approach’, (1935) 35 Columbia Law Review 809CrossRefGoogle Scholar.

56 See, e.g., G. I. Tunkin, Theory of International Law, trans. W. E. Butler (1974), 355.

57 G. Tunkin, ‘Politics, Law and Force in the Interstate System’, (1989-VII) 219 RCADI 227, at 250–1 ff.

58 P. Bourdieu, The State Nobility: Elite Schools in the Field of Power, trans. L. C. Clough (1996), 264–5. This follows from a general relationship Bourdieu establishes between fields, matrices of action relationally structuring different social positions, and what he terms habitus, the internalized dispositions with which agents manoeuvre within these fields. Bourdieu introduces this terminology to overcome the conventional social-scientific divide between structuralism and phenomenology: ‘the opposition between the structure and the individual against whom the structure has to be won and endlessly rewon stands in the way of construction of the dialectical relationship between the structure and the dispositions making up the habitus’. P. Bourdieu, Outline of a Theory of Practice, trans. R. Nice (1977), 84.

59 Bourdieu, supra note 50, at 816.

60 Ibid., at 828, 831, 852.

61 P. Bourdieu, The Logic of Practice, trans. R. Nice (1990), 66–7.

62 Bourdieu generally places a premium on the constraining power of social structures, largely on account of his commitment to a sharp break with pre-reflexive notions of ‘free action’ and ‘full consciousness’. See P. Bourdieu, J. C. Chamboredon, and J. C. Passeron, The Craft of Sociology: Epistemological Preliminaries, trans. R. Nice (1991), 15, 17; P. Bourdieu and L. J. D. Wacquant, An Invitation to Reflexive Sociology (1992), 10–11, 123–40. Although this is sometimes taken to mean that he lacks a persuasive account of self-understanding (see, e.g., Celikates, R., ‘From Critical Social Theory to a Social Theory of Critique: On the Critique of Ideology after the Pragmatic Turn’, (2006) 13 Constellations 21CrossRefGoogle Scholar, at 23–6), it is quite a stretch to embed his theory, as some have, in the structuralist tradition pure and simple.

63 W. E. Darby, ‘“Permanent Arbitration” in Modern International Law’, in International Law Association, Report of the Twentieth Conference, Held at Glasgow, August 20th–23rd, 1901 (1901), 22, at 24–5.

64 International Status of South-West Africa, Advisory Opinion of 11 July 1950, [1950] ICJ Rep. 128, at 187 (Judge de Visscher, Dissenting Opinion).

65 See, e.g., C. Tomuschat, ‘Multilateralism in the Age of US Hegemony’, in R. S. J. Macdonald and D. M. Johnston (eds.), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (2005), 31, at 74.

66 B. Fassbender, ‘Rediscovering a Forgotten Constitution: Notes on the Place of the UN Charter in the International Legal Order’, in J. L. Dunoff and J. P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (2009), 133, at 145.

67 I. Kant, ‘Perpetual Peace: A Philosophical Sketch’, in Kant, Political Writings, ed. H. S. Reiss and trans. H. B. Nisbet (1991), 93, at 108 (emphases in original).

68 See, e.g., B. Z. Tamanaha, On the Rule of Law: History, Politics, Theory (2004), ch. 10.

69 See, e.g., J. Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration (2007), 58–9.

70 Cf. Koskenniemi, M., ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’, (2007) 8 Theoretical Inquiries in Law 9Google Scholar, at 12 (distinguishing analysis of ‘the spirit or, better, the mindset, of the legal profession’ from ‘legalism’ and ‘instrumentalism’ (emphasis in original)).

71 Cf. G. Therborn, From Marxism to Post-Marxism? (2008), 69.

72 B. Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (1984), 140.

73 See Mégret, F., ‘Le droit international peut-il être un droit de résistance? Dix conditions pour un renouveau de l'ambition normative internationale’, (2008) 39 Études internationales 39CrossRefGoogle Scholar.

74 A strategy whose importance is highlighted forcefully in B. Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 EJIL 599; and M. Koskenniemi, ‘International Law and Imperialism: The Josephine Onoh Memorial Lecture 1999’, in D. Freestone, S. Subedi, and S. Davidson (eds.), Contemporary Issues in International Law: A Collection of Josephine Onoh Memorial Lectures (2002), 197, at 207, 217.

75 The chief ‘theoretical opposition’ lies not between bourgeoisie and proletariat, one is told, but ‘between, on the one hand, the decoded flows that enter into a class axiomatic on the full body of capital, and on the other hand, the decoded flows that free themselves from this axiomatic’. G. Deleuze and F. Guattari, Anti-Oedipus: Capitalism and Schizophrenia, trans. R. Hurley, M. Seem, and H. R. Lane (1983), 255. At most, classes are ‘assemblages of interpersonal networks and institutional organizations’ whose identity and composition are always ‘contingent and precarious’. M. de Landa, A New Philosophy of Society: Assemblage Theory and Social Complexity (2006), 66–7.

76 ‘The possibility of other social orders was an essential horizon of modernism. Once that vanishes, something like postmodernism is in place . . . A capsule comparison with modernism might run: postmodernism emerged from the constellation of a déclassé ruling order, a mediatized technology and a monochrome politics.’ P. Anderson, The Origins of Postmodernity (1998), 92.

77 N. Fraser, ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation’, in N. Fraser and A. Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (2003), 7, at 26, 50.

78 See, e.g., Hunt, A., ‘Getting Marx and Foucault into Bed Together!’, (2004) 31 Journal of Law and Society 592CrossRefGoogle Scholar.

79 See, e.g., M. Foucault, ‘The Confession of the Flesh’, trans. Alain Grosrichard, in Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977, ed. C. Gordon (1980), 194, at 203–4.

80 Foucault would accord greater weight to resistance over time. But this would yield not so much a cogent theory as a series of bald assertions, as in his claim that ‘[a]t the very heart of the power relationship, and constantly provoking it, are the recalcitrance of the will and the intransigence of freedom.’ M. Foucault, ‘The Subject and Power’, in Foucault, Essential Works of Foucault, 1954–1984, ed. J. D. Faubion, trans. R. Hurley et al., Vol. 3: Power (2000), 326, at 342. The absence of a comprehensive theory of resistance in Foucault stems largely from the vigour of his assault on humanism: see, e.g., M. Foucault, ‘Politics and the Study of Discourse’, in G. Burchell, C. Gordon, and P. Miller (eds.), The Foucault Effect: Studies in Governmentality (1991), 53, at 70–2.

81 See, e.g., M. Foucault, ‘Truth and Juridical Forms’, in Foucault, Power, supra note 80, at 1, 15.

82 M. Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978–1979, ed. M. Senellart, trans. G. Burchell (2008), 94.

83 See, e.g., M. Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–1978, ed. M. Senellart trans. G. Burchell (2007), 247–8.

84 S. Žižek, ‘The Spectre of Ideology’, in S. Žižek (ed.), Mapping Ideology (1994), 1, at 13.

85 M. Foucault, ‘Questions of Method’, in Burchell, Gordon, and Miller, supra note 80, at 73, 84.

86 See, e.g., Foucault, supra note 83, at 201.

87 This is a point on which critics have long focused; see, e.g., Dews, P., ‘Power and Subjectivity in Foucault’, (1984) 144 New Left Review 72Google Scholar, at 86–8, 94–5; S. Lukes, Power: A Radical View (2005), 95–6. But see also Hallward, P., ‘The Will of the People: Notes towards a Dialectical Voluntarism’, (2009) 155 Radical Philosophy 17Google Scholar, at 20.

88 For instance, it is sometimes claimed that absent an account that locates the ‘mechanism’ responsible for making ‘the bond between rich and poor capitalists . . . stronger than regional bonds between workers and capitalists’, any anti-Marxist can ‘equally well turn the argument around and say that class is the imperfect expression of the more fundamental cultural conflicts’. J. Elster, ‘Three Challenges to Class’, in J. Roemer (ed.), Analytical Marxism (1986), 141, at 160.

89 D. Kennedy, ‘The Disciplines of International Law and Policy’, (1999) 12 LJIL 9, at 83.

90 N. Poulantzas, ‘The Political Crisis and the Crisis of the State’, trans. J. W. Freiburg, in Poulantzas, The Poulantzas Reader: Marxism, Law and the State, ed. J. Martin (2008), 294, at 321–2.

91 N. Poulantzas, ‘Is There a Crisis in Marxism?’, trans. S. Kafatou, in Poulantzas, Poulantzas Reader, supra note 90, at 376, 385. Andreas Kalyvas has since taken the point further, arguing that Foucault's analyses presuppose the state as their organizing principle – something which Foucault, brusque dismissals of Marxism aside, partly conceded with his sporadic attempts to link disciplinary power to the development of the bourgeoisie and the emergence of new modes of capital accumulation. See A. Kalyvas, ‘The Stateless Theory: Poulantzas's Challenge to Postmodernism’, in S. Aronowitz and P. Bratsis (eds.), Paradigm Lost: State Theory Reconsidered (2002), 105, at 115–20.

92 One exception being A. T. F. Lang, ‘Legal Regimes and Regimes of Knowledge: Governing Global Services Trade’, LSE Law, Society and Economy Working Paper Series, 15–2009, available online at www.lse.ac.uk/collections/law/wps/WPS2009–15_Lang.pdf (last accessed 1 March 2010).

93 See, e.g., P. Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalization’, (1997) 3 EJIL 435, at 447.

94 For a good discussion see D. Zolo, Victors’ Justice: From Nuremberg to Baghdad, trans. M. W. Weir, (2009), 32–3.

95 Quoted in Miéville, C., ‘Multilateralism as Terror: International Law, Haiti and Imperialism’, (2010) 18 Finnish Yearbook of International Law 1Google Scholar, at 49–50, available at http://eprints.bbk.ac.uk/783/ (last accessed 1 March 2010).

96 See, e.g., R. A. Falk, The Declining World Order: America's Imperial Geopolitics (2004), ch. 9.

97 Y. Dezalay and B. G. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002).

98 N. Guilhot, The Democracy Makers: Human Rights and the Politics of Global Order (2005). See also Escorihuela, A. L., ‘Cultural Relativism the American Way: The Nationalist School of International Law in the United States’, (2005) 5 Global Jurist Frontiers 1Google Scholar, at 17–21.

99 Trubek, D. M. et al. , ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas’, (1994) 44 Case Western Reserve Law Review 407Google Scholar.

100 See the articles in (2008) 173 and 174 Actes de la recherche en sciences sociales.

101 E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (1975), 266.

102 The loci classici of both strategies are, of course, in Gramsci: see, e.g., A. Gramsci, ‘State and Civil Society’, in Gramsci, Selections from the Prison Notebooks, ed. and trans. Q. Hoare and G. N. Smith (1971), 206, at 229–39.

103 E. Christodoulidis, ‘Against Substitution: The Constitutional Thinking of Dissensus’, in M. Loughlin and N. Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (2007), 189, at 194.

104 Such as foot-dragging and behind-the-scenes ridicule, telltale examples of subaltern resistance. J. C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (1990), 87, 114–5.

105 ‘[F]or if the powerful can't criticize the oppressed, because the central epistemological categories are inexorably tied to particular perspectives, it also follows that the oppressed can't criticize the powerful.’ P. A. Boghossian, Fear of Knowledge: Against Relativism and Constructivism (2006), 130.

106 V. I. Lenin, ‘Two Utopias’, in Lenin: Collected Works, Vol. 18, trans. S. Apresyan (1979), 355, at 356.