Everything Is Just Dandy!

Law, Capitalism, and the Power of Persuasion — Honor Brabazon

Legal Form
Legal Form
2022-07-25
https://legalform.blog/2022/07/25/law-capitalism-and-the-power-of-persuasion-honor-brabazon/

[This is the third in a series of posts comprising a symposium on Christine Schwöbel-Patel‘s recently published book, Marketing Global Justice: The Political Economy of International Criminal Law(2021).]

Marketing Global Justice makes an essential contribution to critical studies of international law. It furthers the renewed engagement with, and development of, Marxist legal theory and continues the ‘historical turn’ in international legal research (albeit focussing on a shorter historical trajectory). It is a rich, multi-faceted analysis that broadens the conversation about the complicity of international law in the exploitation of the Global South and links international legal scholarship with communication studies in ways that open a number of possibilities for fruitful future study.

The book centres on an examination of the role of corporate-style marketing practices in both the pursuit of global justice and the process through which international criminal law came to constitute ‘the dominant global justice project of the early twenty-first century’.[1] To do so, it traces two major shifts beginning in the 1990s that contributed to the rise of marketised global justice—‘marketised’ indicating both marketed and on the market. The first is the growth of ‘new branding’ practices in marketing circles, which included a move toward more invasive marketing techniques that sell lifestyles and self-images rather than solely products. The second shift is the increased support for the anti-impunity movement in global justice circles. Schwöbel-Patel describes how ‘competition for the meaning of global justice’[2] grew in the 1990s, and how the anti-impunity movement—which began to employ marketing tactics such as ‘new branding’ in support of its cause—successfully institutionalised its version of global justice as international criminal law.

Marketing Global Justice draws from critical communication studies an understanding of marketing as a tool of distraction and persuasion, illustrating how this ‘narrow vision of global justice as concerning predominantly anti-impunity’ has helped to ‘enabl[e] and encas[e] the market, distracting from structural inequalities, and disabling or marginalising democratic contestation’.[3] By leaving redistributive and structural questions out of the global justice debate, Schwöbel-Patel argues, this vision ‘precludes global justice as a redistributive force’.[4] Even more insidiously, ‘[t]he alliance between marketing and ICL has created the illusion that anti-impunity is a counter-hegemonic tool, while in fact serving the interests of hegemonic powers’ and bolstering ‘the illusion…that market values are social values’.[5]

The book is extremely generative, and in what follows I offer a selection of the potential connections to other areas of scholarship and conversations I see arising from it.

Neoliberalism

Schwöbel-Patel argues that marketised global justice both is symptomatic of, and advances, neoliberalism. The book can be situated within the (welcome and overdue) departure from a characterisation of neoliberalism as merely a set of profit-driven policies. It contributes instead to the push toward further understanding of the more fundamental changes to subjectivities and social relations that neoliberal theorists and policymakers have sought.[6]

For instance, the book demonstrates how the process of marketisation not only has made global justice profitable but also exhibits ‘[n]eoliberalism’s ability to reimagine political subjects as entrepreneurs and consumers’.[7] The reconceptualisation of victimhood in this story is particularly interesting and dovetails nicely with Grietje Baars’ recent book, The Corporation, Law, and Capitalism.[8] Although both changes to corporate accountability and marketised global justice were justified as advancements for victims’ rights, these authors show that both processes have reframed victims as market actors. Baars describes the process through which ‘compensation claims and settlements create an exchange relationship’ in which a victim of corporate crime negotiates the price of harm done with the offender,[9] whilst Schwöbel-Patel explains that ‘the main marketplace of marketised global justice’ is ‘a global victim industry’[10] where ‘victims offer their suffering for sale’ and labour for someone else’s gain—‘testifying, being photographed, [and] being filmed’.[11]

Schwöbel-Patel also traces a process of privatisation that has occurred as the dominant framework for global justice has shifted from a state accountability framework (predominantly concerning rights of individuals vis-à-vis the state) to a matter of individual criminal accountability, and from state funding to funding by individual donors who have made personal choices to contribute to global justice—a quintessential neoliberal reformulation.[12]

Similarly, Schwöbel-Patel writes that marketised global justice ‘both seeks to protect the market from politicisation, privileging private capital, and to hide these privileges through persuasion and distraction’.[13] Here the book indirectly touches upon one of the key links between neoliberalism and authoritarian politics. Neoliberal thinkers like Hayek aimed to insulate the market from the vagaries of democracy.[14] Whilst neoliberal thought and rhetoric are rooted in a particular notion of unadulterated individual choice, absent the supposedly undemocratic influence of education, experts, and collective deliberation, those ‘choices’ are (ironically) ripe for manipulation, including through marketing by corporations, governments (as in the ‘publicity state’),[15] and, now, global justice actors.  The book traces some of the techniques of persuasion and distraction deployed in the marketised global justice process, which simultaneously narrow the sphere of public debate and seek to influence the choices of donors (see ‘Spectacle’ below).    

Juridification

Marketing Global Justice also makes an important contribution to conversations about the juridification that has characterised the neoliberal period.[16] Neoliberal theorists like Hayek advocated for nomocracy, understood as a system of rule governed by abstract, end-independent rules (in short, a society governed by the rule of law), rather than, for instance, a system organised around the pursuit of particular collective objectives, such as equity or socio-economic justice. Nomocracy was preferred explicitly due to its ability to restrain political actors and minimise political engagement.[17] The depoliticising capacity of the legal form—including its ability to abstract legal subjects from their social context, to present its rules as universal and fixed, and to portray its adjudication as a technical matter of interpreting fixed legal texts—obscures the substantive inequalities and power differentials that produce, and are produced by, the social relations that law mediates.[18] Law depoliticises, persuades, and distracts in ways that hinder the pursuit of redistributive change.

These features of law can be seen in Schwöbel-Patel’s account of how ICL ‘gained a status as the measure for global justice in the dominant institutional framework as well as in the public imagination’[19] because of ‘ICL’s unique ability to protect the power of certain states whilst upholding the global justice brand, shielding global justice from demands of redistribution whilst seeming to tackle the distributive inequalities, protecting the market from democratic contestation’.[20] In this sense, ICL plays a role consistent with that of liberal legalism more generally at the international and domestic level.[21] The book here brings ICL into analysis of law’s complicity, in which law is understood not to be a neutral vessel but rather to exhibit structural biases and to constitute, and not just be constituted by, capitalist social relations.

It will be a welcome addition, for instance, to conversations about the increased juridification of the political sphere in the neoliberal period, which has characterised what I’ve called ‘neoliberal legality’.[22]  Through this process, legitimating ideas about law (ideas that obscure ‘the biases inherent in legalism’, such as the notions that law is ‘rational and non-political’ and ‘the correcting influence on excesses of power’[23]) have been mobilised in ways that have reframed fundamentally political processes as apolitical matters, thereby shielding the market from political contestation.[24]

For instance, Schwöbel-Patel’s observation that global justice has been depoliticised and de-historicised through the process of marketisation potentially indicates both that market logics are further entering and altering global justice processes, as she says, and that law and legal logics increasingly shape global justice as it moves from the soft law frameworks of international human rights law to the courtrooms of international tribunals. In this sense, the takeover of social values by market values through the alliance between global justice and marketing that Schwöbel-Patel presents might also be seen as an expansion of capitalist social relations through the further extension and intensification of the broader co-constitution of the juridical and economic logics of capitalism that has characterised the neoliberal period. In this vein, the book connects to the conversation about whether neoliberalism marketises or whether it juridifies,[25] in the sense that juridical logics complement market logics in advancing capitalist social relations and co-constitute, but cannot be reduced to, market logics.[26]

Agency

These theoretical contributions are underscored through the case studies in the book, which generatively showcase different angles of the transition to marketised global justice and the role of different actors in this process. In doing so, the book connects analysis of structure and ideology to examples of agency, showing how specific actors help to enable certain ideas about law to become dominant at particular times in particular forums.

The book sets the stage well for further analysis of the agency involved in the advent of marketised global justice, for instance whether the various actors (donors, NGOs, prosecutors) were aware of these shifts, if they found the new model desirable or were merely trying to survive in a changing context, and whether the shift was immediate, universal, resisted. I would be interested to see an institutional or sectoral ethnographer pick up this thread and use archival research and interviews with NGO actors and prosecutors to construct a genealogy of the patterns Schwöbel-Patel documents.

Spectacle

In a similar vein, Schwöbel-Patel skillfully illustrates ways that ‘marketised global justice is implicated in the continuing inequality between the Global North and Global South’.[27] For instance, one of the strengths of the book is its account of how particular evocative, spectacularised images are integral to marketised global justice, alongside its illustration of how this practice is not merely ideational or superstructural but serves an ordering function.[28]

Schwöbel-Patel details how NGOs use stereotypes in the form of ‘catastrophic’ and ‘reductive images and narratives’[29] to market the cases they represent, tailoring the image of global injustice victims ‘to the tastes of a Western donor and patronage community’[30] in order to attracttheir attention and financial support in the highly-competitive ‘attention economy’.[31] She argues that this move is not merely cosmetic but ‘has distinct distributive effects’,[32] as it gives meaning to these spectacular iterations of global justice and ‘renders invisible the less marketable historical moments’[33] such as colonialism. The process ‘edits out’ the historical and continued exploitation and value extraction of the Global South by the Global North. It also ‘institutionalises existing stereotypes of a feminised, infantilised, and racialised notion of victimhood’[34] that have long been conjured to prop up ideas of Western superiority and justify colonial and postcolonial exploitation.[35] This analysis could be fruitfully extended through further engagement with analysis of the ordering function of racism as itself not merely ideational or superstructural. Schwöbel-Patel also identifies a useful set of additional characteristics of the ideal victim that are invoked in the marketised global justice process—vulnerability and weakness, dependency, and grotesqueness—which demonstrate with further precision how victims’ suffering is marketed. 

I found Schwöbel-Patel’s analysis of the use of spectacle in marketised global justice to be reminiscent of the spectacle of (capitalist) law described in Douglas Hay’s three aspects of law as ideology—law’s majesty, justice, and mercy—in his writing on 17th-century England.[36] Again, the process through which marketised global justice is itself marketed seems to me to amplify and work in tandem with the juridical logics underpinning law, in this case illustrating the homology between the logic of law and the logic of spectacle and underscoring the notion that law is always and already spectacular.[37] Understanding different ways that law’s spectacle can operate and be engaged by various actors in particular moments provides nuance to understanding of the legal form, which is typically traced in broader strokes, and exemplifies the book’s contribution to discussions of agency.

Domestic vs. Global

The book opens space for connections between the global processes it showcases and instances at the domestic level of both the spectacle of law and the further permeation of marketing into the political sphere—for instance, the increased use of branding and other marketing techniques in political campaigning, the rise of the publicity state,[38] tough-on-crime policies, and recent campaigns to challenge conceptions of the ideal victim.

Further, where Schwöbel-Patel quotes Claire Valier as saying, ‘[t]he powers of horror are an important feature of contemporary populism’,[39] I began to think about how elements of the story of marketised global justice that Schwöbel-Patel identifies—grotesque images, spectacle, stereotypes, simplistic narratives, law-and-order politics, and victims’ rights—also feature in growing right-wing populist movements, and how these themes might inform a discussion of ways in which neoliberal approaches to justice enable and legitimise these populist narratives.

Conversely, I would be interested in further conversation about what is specifically global about the process of marketising global justice as well: is it just that it is global justice that has been marketised, or is there something particular about the structure of international law, for instance, or about the global political sphere that has enabled this process to occur?

Resistance

The final interesting provocation I’ll mention is the book’s analysis of what, then, is to be done—a topic that is too often shied away from in critical international law texts, or treated with unhelpful brevity and inconsistency of analysis.

In its final chapter, Marketing Global Justice provides a useful typology and critique of resistance. Schwöbel-Patel lays out four modes of ‘occupying global justice’, offering important critiques of common approaches, as well as key theoretical considerations around things like strategy vs. tactics and decoloniality, whilst underscoring the need to resurface ‘the undermined anti-imperial origins of global justice movements’.[40] This part of the book intervenes in discussions about decolonising global justice at the level of epistemology and in ongoing debates about law’s emancipatory/transformative potential, including conversations about whether or how law can be used to advance systemic change.[41] This typology provides a useful heuristic that I hope will be engaged and expanded.

I was particularly intrigued by Schwöbel-Patel’s observations about the constellation of ‘resistance global justice’ tactics she identifies, which ‘seeks to dislodge the links between global justice, neo-colonialism, and neoliberalism’.[42] This led me to wonder whether resistance to marketised global justice might not seek to dislodge global justice from law as well. Schwöbel-Patel argues that the alliance between ICL and marketing has drained global justice of its radical potential by depoliticising and de-historicising global justice.[43] I wonder if the further juridification that took place through the establishment of ICL (i.e., a clearer articulation of the legal form) as the main purveyor of global justice did not also advance this depoliticisation and de-historicisation, and whether we could ever truly expect a focus on redistribution from international law or ICL. If not, must conversations about de-juridifying global justice also be part of resistance efforts? This would not be about nostalgia for the past, to echo one of Schwöbel-Patel’s points. Rather it might be a way of imagining and working toward mechanisms of global justice that are unabashedly political, collective, deliberative, and at once anti-imperial, anti-racist, anti-capitalist, and decolonial.

In sum, Marketing Global Justice is an immensely thought-provoking book that should be widely read. I think it will generate a broad range of conversations, some of which may deepen its structuralist analysis of the changes and continuities that characterise marketised global justice, and all of which will be enriched by its original analysis of important questions facing international law scholars, practitioners, and activists alike.

Honor Brabazon is an Associate Professor of Legal Studies at St. Jerome’s University in the University of Waterloo. Her research explores the role of law in neoliberal thought and policy, particularly in relation to reconfigurations of public debate and dissent, and she is the editor of Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Routledge, 2017).


[1] Schwöbel-Patel, Marketing Global Justice: The Political Economy of International Criminal Law (Cambridge University Press, 2021), p. 3.

[2] Ibid., p. 26.

[3] Ibid., p. 269.

[4] Ibid., p. 58.

[5] Ibid., p. 271.

[6] See, for example, Pierre Dardot and Christian Laval, The Way of the World: On Neoliberal Society (Verso, 2013); Loïc Wacquant, ‘Three steps to a historical anthropology of actually existing neoliberalism’ (2012) 20 Social anthropology 1: 66-79.

[7] Schwöbel-Patel, p. 149.

[8] Grietje Baars, The Corporation, Law, and Capitalism (Brill, 2019).

[9] Ibid., p. 371.

[10] Schwöbel-Patel, p. 127.

[11] Ibid., p. 149.

[12] For another example of this reformulation, see Honor Brabazon ‘Juridifying Agrarian Reform: The Role of Law in the Reconstitution of Neoliberalism in Bolivia’ (2021) 43 Canadian Journal of Development Studies 1: 78-96.

[13] Schwöbel-Patel, p. 119.

[14] Honor Brabazon, ‘Dissent in a juridified political sphere,’ in Neoliberal Legality (Routledge, 2016: 179-201); Quinn Slobodian, Globalists (Harvard University Press, 2018).

[15] Kirsten Kozolanka, ‘Communicating for Hegemony: The Making of the Publicity State in Canada,’ in Publicity and the Canadian State: Critical Communications Perspectives, ed. Kirsten Kozolanka (University of Toronto Press, 2014); Honor Brabazon and Kirsten Kozolanka, ‘Neoliberalism, authoritarian-populism, and the “photo-op democracy” of the publicity state: Changes to legislative and parliamentary norms by the Harper Government, (2018) 51 Canadian Journal of Political Science/Revue canadienne de science politique 2: 253-277.

[16] Honor Brabazon, Neoliberal Legality (Routledge, 2017).

[17] FA Hayek, New Studies in Philosophy, Politics, Economics, and the History of Ideas (Routledge 1990); Michael Oakeshott, Rationalism in Politics and Other Essays (Methuen 1962); Honor Brabazon, ‘Nomocratic social change: Reassessing the transformative potential of law in neoliberal times,’ in Research Handbook on Law and Marxism (Edward Elgar Publishing, 2021).

[18] Brabazon, ‘Dissent’.

[19] Schwöbel-Patel, p. 15.

[20] Ibid., p. 92.

[21] Evgeny B Pashukanis, Law and Marxism: A General Theory (Ink Links Ltd 1978); Miéville, Between Equal Rights; Robert Knox, ‘Marxism, international law, and political strategy,’ (2009) 22 Leiden Journal of International Law 3: 413-436.

[22] Honor Brabazon, ‘Understanding Neoliberal Legality’, Oxford University, 21 June, 2013; Brabazon, Neoliberal Legality.

[23] Schwöbel-Patel, p. 56

[24] Brabazon, ‘Dissent’.

[25] Wendy Brown, Undoing the demos: Neoliberalism’s stealth revolution (MIT Press, 2015); Brabazon, ‘Dissent’.

[26] Bob Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (Pluto Press, 1984).

[27] Schwöbel-Patel, p. 4.

[28] Ibid., p. 271.

[29] Ibid., p. 17.

[30] Ibid., p. 18.

[31] Ibid., p. 17.

[32] Ibid., p. 50.

[33] Ibid., p. 18.

[34] Ibid., p. 128.

[35] See, for example, Mutua Makau, ‘Victims and Saviours: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201; Ntina Tzouvala, Capitalism as civilisation: A history of international law (Cambridge University Press, 2020).

[36] Douglas Hay, ‘Property, Authority, and the Criminal Law’ in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London, 1975).

[37] Robert Knox, ‘Law and Debord’, 29 December, 2008.

[38] Kozolanka, ‘Communicating for Hegemony’.

[39] Schwöbel-Patel, p. 141.

[40] Ibid., p. 243.

[41] See, for example, China Miéville, Between Equal Rights: A Marxist Theory of International Law (Brill, 2005); Susan Marks (ed), International Law on the Left: Revisiting Marxist Legacies (Cambridge University Press, 2008); Robert Knox, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 193–299; Brabazon, ‘Nomocratic social change’.

[42] Schwöbel-Patel, p. 268.

[43] Ibid., p. 269.