By Dr Lee McConnell, Lecturer in Law (University of Bristol Law School)
In a recently published article, I draw together some thoughts on the relationship between international law and social change. While I can do no more than provide a flavour of some of the themes explored in the article, I hope these reflections are at least thought-provoking.
A brief glance at the preamble to the UN Charter, which commits to the promotion of ‘social progress and better standards of life in larger freedom’, is indicative of the unique way in which international law asserts its own inherently ‘progressive’ character. Regardless of whether one shares this vision, a more modest connection between law and social change will be familiar to many. This is the idea that international law can be harnessed to advance a particular cause – that it is, in essence, an empty vessel that can be filled with progressive content. This assumption, often implicit but rarely articulated or confronted, is what my article seeks to address.
Much of my work to date has been situated in the field of business and human rights. A recent initiative pursued by this movement involves the creation of a multilateral treaty which seeks to facilitate access to domestic remedies for victims of corporate abuse. Another seeks to challenge the State-centric operation of international law so as to hold companies directly responsible for international human rights violations. This latter approach was recently the subject of strategic litigation before the Supreme Court of Canada, where the court confirmed the possibility of corporations being directly bound by norms of customary international law. Such initiatives seek to use law in pursuit of a particular cause or agenda –in this case, to protect vulnerable populations from the harmful practices of multinational corporations. In the article, I argue that a type of ‘formalist’ logic often lies behind such engagements with law. While this term is saturated with a range of meanings, I use it here quite literally to describe a position in which the ‘form’ of law is prioritised over its ‘content’. Law is viewed as an empty ‘form’; a container capable of accommodating any content. This empty formalist stance is arguably a necessary minimum in order to see hope in international law for the advancement of one’s cause.
Perhaps the most extreme expression of empty formalism is found in the jurisprudence of Hans Kelsen. Kelsen famously conceived of law as a system of norms validated neither by reference to their substantive content, nor by the practical efficacy of the legal order. Instead, the validity of legal norms is obtained via a transcendental category called the ‘Grundnorm’. For Kelsen, this transcendental grounding is necessarily presupposed and applied in the mind of the jurist. It is conceived as a minimal, content-free lens through which a free-standing normative sphere may be conceptualised in ‘pure’ terms – i.e. without reference to ‘polluting’ social facts or value judgements.
Drawing from the work of the social theorist, Theodor Adorno, I argue that a radical compartmentalisation between form and content is both theoretically unsustainable and potentially damaging to movements seeking to use law to challenge the socio-economic status-quo. Writing with Max Horkheimer in the 1940s, Adorno articulated the following theses:
‘Myth is already enlightenment; enlightenment reverts to myth.’
Taken together, these statements concisely express a number of insights concerning the way we as humans know and control our world. When we think of myths today, we’re often prone to dismiss them as ‘primitive’, or at the very least, ‘non-rational’. Yet, for Adorno and Horkheimer, myths are ‘already enlightenment’ in the sense that they are ways of understanding and ordering the world. Conversely, the enlightenment rationality that dominates today is prone to revert to myth when it treats its formal categories as necessary and unchanging. Such a freezing or rigidification of our conceptual apparatus has the effect of permanently excluding material that does not fit within our pre-established frameworks. Adorno termed this tendency ‘identity-thinking’, a mode of thought that applies seemingly fixed categories to our objects of knowledge, without concern for what is excluded (the so-called ‘non-identical’).
What should be clear is that Kelsen’s work is both an archetypal expression of ‘empty formalism’ and a prime example of ‘identity-thinking’. His incredibly narrow framework conceives of law as a system of norms operating in splendid isolation from material reality. His theory defines out of view the law-making, administrative and enforcement institutions crucial to the daily operation of the legal order. Thus, Kelsen retreats from the world into abstract, invarient categories posited in the mind of the jurist – a jurist who is capable of bracketing the influence of the social reality in which they are situated. In doing so, he withdraws into a ‘pure’ realm where law can, in principle, assume any content. Strange as it may seem, this is precisely the appeal of formalism to those seeking to effect social change via legal strategy. Any obstacles to the realisation of a particular agenda are not features of the law as such. Instead, they are externalized; framed in terms of a lack of ‘political will’ on behalf of law-makers or an absence of appropriate institutions. Law itself is not directly implicated in these deficiencies. A version of this logic is arguably at play in Martti Koskenniemi’s suggestion that formalism may be used ‘as a counter-hegemonic strategy’.
While admittedly alluring, identity-thinking of this type is highly deceptive. Far from providing an objective, minimal or indeed pure account of the legal form, Adorno’s work suggests this mode of thought expresses oblique references to the historically-specific social conditions under which it arose. In his analysis of the commodity, Marx highlighted the way in which distinct products of labour assume an equivalence via the category of ‘exchange-value’. Similarly for Adorno, identity-thinking serves to establish the equivalence of non-equivalent things. Accordingly, a highly partial construction of ‘identity’ comes to obscure the ‘non-identical’ surplus that falls outside of our conceptual apparatus. Yet, Adorno is clear that it is not capitalism that gives rise to ‘identity-thinking’. All modes of thought to date have failed to provide exhaustive representation of their objects of knowledge. As Jarvis puts it, ‘[i]t is not capitalism that invents mystification but that in capitalism mystification presents itself, to an unprecedented extent, as demystification’. By presenting our variable and impoverished conceptual frameworks as exhaustive, objective and immutable, such thinking conceals the potential for change in both thought and society. For Adorno, the task of the critic was to resist the temptations of identity-thinking; to expose the partiality of our intellectual categories and to highlight the extent to which they are open to displacement, variation, and revision.
Developing these themes, my article examines in depth the extent to which legal strategies are entangled in identity-thinking – in establishing ‘an equality in which differences perish’, and which ‘secretly serves to promote inequality’. It explores the ways in which international law can be said to assume and maintain ‘juridical inequality and unequal violence’. The perspective advanced ultimately falls between the polarities of opportunity and impasse. I argue that structural affinities between law, economy and idealist epistemology serve to limit international law’s socially-transformative potential. Yet, while these insights paint a rather bleak picture of international legal strategy, they do not necessitate its wholesale abandonment. Indeed, social transformation will hardly be achieved through a withdrawal from engagement in the legal sphere. In line with Adorno, I seek to acknowledge and encourage reflection on the dangers and limitations of legal strategies, while remaining alive to the opportunities they present for real-world benefits. Having sketched these themes in abstract, my hope is that you will be intrigued enough to read on.
 Charter of the United Nations (26 June 1945) 1 UNTS XVI, Preamble.
 OHCHR, Revised Draft Treaty on Business and Human Rights (16/07/2019) available at: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf
 Nevsun Resources Ltd. vs. Araya  SCC 5.
 Max Horkheimer and Theodor Adorno, Dialectic of Enlightenment (Verso, 1997) xvi.
 Hans Kelsen, General Theory of Law and State (Harvard University Press, 1949) 39.
 Martti Koskenniemi, From Apology to Utopia (CUP, 2006) 602, 616.
 Karl Marx, Capital Vol. 1 (Penguin, 1976) 166-169.
 Simon Jarvis, ‘Adorno, Marx, Materialism’ in Tom Huhn (ed) The Cambridge Companion to Adorno (CUP, 2004) 93–94.
 Theodor Adorno, Negative Dialectics (Contiuum, 1973) 309.
 China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill, 2004) 292.