International Judicial Activism and the Commodity-Form Theory of International Law

Abstract

In his book Between Equal Rights: A Marxist Theory of International Law, China Mieville revisits the work of 1920s Russian jurist E. B. Pashukanis to develop a commodity-form theory of international law. The theory serves as a valuable and instructive counterpoint to influential currents in international legal scholarship. However, this essay argues that Mieville is unnecessarily negative about the prospects for international law to contribute to progressive change. Central to his thesis is the critical insight that international law is indeterminate. He maintains that for every claim there is a counter-claim and legalistic [anti-imperialism] is therefore ultimately toothless. By contrast, this essay contends that indeterminacy and its antipode, determinacy, are not properties of international law. Rather, they are arguments, the emancipatory force of which is not fixed, but context-dependent.