B.S. Chimni is Professor of International Law, Jawaharlal Nehru University (JNU), New Delhi. He has had all his formal education in India. He took his LL.B. degree from Panjab University, LL.M. from Bombay University and Ph.D. from JNU. He has been Vice Chancellor of W.B. National University of Juridical Sciences, Kolkata. He has held visiting positions at Brown, Harvard, Cambridge, York and Tokyo Universities. He is a General Editor of the Asian Yearbook of International Law and a member of the Executive Council, Asian Society of International Law. He has delivered several prestigious lectures including the Eighth Grotius Lecture at the Centennial Meeting of the American Society of International Law and the First Barbara-Harrell Bond lecture at Refugee Studies Centre, Oxford University. His central research interest is to elaborate in association with a group of likeminded scholars a critical third world approach to international law (TWAIL). In doing so he has been sustained over the years by the encouragement and friendship of many individuals, especially Antony Anghie, James Gathii, David Kennedy, Obiora Okafor and Yasuaki Onuma.
In my view, the texts that most shape the thinking of an individual are those that explain the key aspects of the world she inhabits or provide the moral grounding that anchors her vocation and her day-to-day existence. The fact that these texts always represent a distinct mix reflects not only the larger social, cultural, and national milieu in which the individual reads these texts but also her particular existential situation. Which texts acquire salience is also often fortuitous; texts spring to life in particular places and times. Thus, I came to the writings of Marx, Engels, and Lenin through the active left student movement in Jawaharlal Nehru University, where I now teach. Some of their texts, along with others that I list below, have much influenced my work on public international law. That, however, does not mean that I entirely subscribe to the views of the respective authors. Thus, for example, while the writings of Marx are central to my work I have never shared his general rejection of “religion.”
Karl Marx and Friedrich Engels, The German Ideology
The German Ideology was my first introduction to the materialist conception of history. What struck me most on reading it was how Marx and Engels begin from real individuals with real needs to explain different phases of human history by establishing interconnections between different modes of production, the emergence of distinct social classes, and forms of state. The first chapter also helped me locate the place of ideology and law in society. I came to understand why “the ideas of the ruling class are in every epoch the ruling ideas.” The simple thesis that the class that owns the means of production also controls the means of mental production explained, for me, why subaltern groups in society always find it difficult to contest reigning ideas. A significant accompanying insight is that every ruling class tends to present its interest in the language of universal interest making it necessary to demystify the interest complex in order to challenge it. The interests of the ruling classes eventually come to be inscribed in law, albeit laws are not to be viewed as a simple reflection of dominant class interests.
This text also helped me understand the material basis of the relationship between nations by linking internal and international developments, noting that the relations between different nations depend on “the extent to which each has developed its productive forces, the division of labor and internal intercourse.” It was, thus, the arrival of big industry and the competition between them, which by “destroying the formal natural exclusiveness of separate nations, … produced world history for the first time.”
This fascinating text also shows how particular ideas of commerce and trade flowed from the interests of dominant nations. I discovered that the policy prescription of free trade recommended to developing countries was never practiced by the industrialized world. These countries excluded competition through the use of “tariffs, prohibitions and treaties.” In fact, power was the crucial variable in regulating international trade relations. It was, therefore, no accident that in the nineteenth century the mightiest maritime nation, the United Kingdom, “retained the preponderance in trade and manufacture.”
V. I. Lenin, Imperialism, the Highest Stage of Capitalism: A Popular Outline
For peoples who have been colonized it is critical to understand the political economy of imperialism, especially when it continues to be the defining factor in international relations. From this point of view, Lenin's pamphlet was enlightening as it showed how imperialism was a function of the internal logic of a certain stage of capitalism, which could grow “into a world system of colonial oppression.” He demonstrated that the need to acquire colonies was driven by the need for markets and the search for sources of raw materials.
Lenin also pointed to the more enduring lesson that “imperialism is, in general, a striving towards violence and reaction.” The validity of this insight for assessing the history of the twentieth century and current times hardly requires demonstration. Lenin also helped me to understand why the working classes in the imperialist world are not united in their opposition to the politics of empire. The “enormous super profits” made through exploitation of other countries and peoples were used to create a “labor aristocracy” in order to divide the working class and stem united opposition to imperial policies. There is much that has changed since Lenin wrote the pamphlet, and a good deal in his analysis can be questioned or was plainly wrong. He certainly erred in his assessment of the dynamism of capitalism. But his general insights into the economics and politics of imperialism have remained salient in my endeavor to articulate a “Third World approach to international law” (TWAIL).
Antonio Gramsci, The Prison Notebooks
Gramsci was, without doubt, the most imaginative and innovative of Marxist thinkers of the twentieth century. His rejection of all forms of determinist thinking also makes him, and for sound reasons, a much more acceptable figure to mainstream social science. His understanding of the role of the state in capitalist societies is particularly insightful. He noted, with great perspicacity, that the role of the capitalist state was not to defend narrow corporate interests but the capitalist system itself, often bringing it into conflict with individual capitalists or particular fractions of the capitalist class. It explained among other things the tensions and fractures in the ruling classes and the existence of different political formations to represent their interests. These insights shed much light on the shaping of the foreign policies of capitalist states and, in a more general way, the role of international institutions within a capitalist world order.
Gramsci's concept of “hegemony” was extremely illuminating as it helped me to understand, in a profound way, why subaltern classes in society do not actively resist domination. It was not simply about being bribed by the ruling classes but about certain features of the social order that are accepted as a natural order. I found even his few remarks on international relations remarkable for their discerning grasp of the subject. His thesis that “international relations intertwine” with “internal relations of nation-states, creating new, unique and historically concrete combinations” and that “international relations react both passively and actively on political relations” are notable for their clarity. It was decades before mainstream international relations theory came to appreciate these intricacies. Finally, his idea of an “organic intellectual” was instructive in terms of being self-conscious about the choices that confront intellectuals in a society fractured along class, caste, race, and gender lines.
Nicos Poulantzas, Political Power and Social Classes
Poulantzas was among the most sophisticated Marxist theoreticians in the post-Gramsci era. This particular book assumed importance as it educated me in the basics of Marxist political science. Poulantzas explains in a systematic way the Marxist concepts of power, social classes, and the nature and character of the capitalist state. His definition of “power” as the capacity of social classes to realize their interests provided me with an anchor in understanding both the concept of “national interest” and how dominant social classes shape its content and, eventually (through a series of mediations), the nature and character of international laws and institutions.
As Poulantzas has noted elsewhere in the context of international institutions, these do not possess their own power but “express and crystallize class powers.” His concept of “relative autonomy,” on the other hand, allowed him to move away from a crude determinist structure to produce a more sophisticated understanding of law and legal institutions. This view was particularly attractive, as it confirmed for me that international law and institutions could possess a certain independence from international economic relations. It supported my understanding that international law and institutions had a refractive dimension that could constrain the actions of even the most powerful states. It helped me better appreciate the well-known thesis of E. P. Thompson that the idea of the rule of law is an “unqualified human good.”
Jürgen Habermas, Theory of Communicative Action
However, I continued to struggle with the issue of the legitimacy of norms in international law. This work by Habermas proved particularly useful in clarifying my thoughts. Habermas shows how the claim of legitimacy for legal rules presupposes the legitimacy of the legal order that lays down what is legal. A simple adherence to prescribed procedure, therefore, does not provide an independent type of legitimacy. It can secure legitimacy only if it is based on good arguments in contrast, say, with the adoption of laws through the use of power. The theory of communicative action showed me that legitimacy is, in a crucial way, a function of whether the rules of international law are adopted through strategic or communicative action. In a model of strategic action one actor seeks to influence the behavior of another by means of the threat of sanctions or the prospect of gratification of some sort in order to resolve the interaction in its favor.
On the other hand, in a communicatively achieved agreement, no party can impose a resolution on the other(s) through any means other than good arguments. For me, this was an important basis for the critique of both colonial international law and contemporary international law. International laws are essentially negotiated through strategic action. It is true that the Vienna Convention on the Law of Treaties, 1969, excludes some ways of exercising power in international law. However, it does not exclude all forms of coercion, in particular, the use of economic power to achieve a desired result. Besides lawmaking, the theory of communicative action offers a regulative ideal by means of which democratic societies can be tested. For the moment communicative action is restricted in a society democracy comes to be seriously undermined. This insight offered me a deep explanation of the collapse of “actually existing socialism”; in the absence of deliberative space, bad arguments prevailed in social and political life.
C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries)
Western textbooks on international law tend to entirely ignore the contribution of the non-West to the evolution and development of international law. This is where the Alexandrowicz book assumed immense importance for me. This remarkable book not only made me rethink the history of the law of nations but also question much that was written by mainstream scholarship in other areas of international law. The history of the law of nations as narrated by Alexandrowicz diverged dramatically from the standard histories of international law found in texts like Arthur Nussbaum's A Concise History of the Law of Nations.
Alexandrowicz questioned the proposition that international law was exclusively the product of a European Christian civilization. He points out that when the Europeans came to India they confronted “a network of organized States” and the interactions between the two worlds took place “on a footing of equality.” Furthermore, foreigners “were received on a secular basis irrespective of religion or civilization.” Alexandrowicz was also persuaded “that Grotius either conceived or perfected his doctrine of the freedom of the sea under the influence of maritime traditions prevailing in the East.” His book also fascinated me because it offered a model of scholarship that transcended narrow national or civilizational boundaries to seek out the truth. Alexandrowicz was, it is worth mentioning, a professor of international law in the University of Madras for nearly a decade during the course of which he also founded and edited the Indian Yearbook of International Affairs.
Ludwig Wittgenstein, The Philosophical Investigations
The issue of the indeterminacy of rules has long engaged some of the best minds in the legal academia. I approached The Philosophical Investigations for help in unraveling the intimate relationship between language, law, and interpretation. I was grappling, at this point, with the New Haven theory of interpretation (associated with Myres McDougal), with its stress on indeterminacy of rules. Wittgenstein offered me ways to address the problem. His insights helped me to understand how rules acquire meaning.
To begin with, there is the simple proposition that the fundamental unit of language is a sentence. Or as Wittgenstein put it, “to understand a sentence means to understand a language.” It shows that to direct attention to individual words in a sentence is to mystify the process of assigning meaning to words. Wittgenstein's aphorism that “the meaning of a word is its use in the language” was, on the other hand, of fundamental import in clarifying the role and limits of the interpretative exercise. As Wittgenstein explains, “interpretations by themselves do not determine meaning” for then anything could be made out to be in accord or conflict with the rule. What gives meaning are social practices that are part of a particular “language-game.” This language game is a “form of life” and is constituted by social practices. Therefore, when it is asked how a rule can determine its own consequence, the response is that the rule is, to begin with,derived from the world of social practices. You do not first formulate a rule and then determine what constitutes compliance with it but, rather, rely on extant social practices to formulate the rule to either sustain or reshape them. I learned the important lesson that the claim of indeterminacy is not to be attributed to words but to conflicting social practices that rules must regulate in circumstances where dominant groups or states attempt to justify their practice as being in accord with the rule.
M. K. Gandhi, Hind Swaraj or Indian Home Rule
I now turn to a book that has shaped my thinking in manifold ways but which helped me in particular to understand, in a most profound manner, the meaning and process of resistance and human emancipation. Had this short tract been written by anyone other than Gandhi it may have been dismissed as the work of a crank. It presents a wholesale critique of “modern civilization”; he is certainly more ambivalent in his other writings. Even for a sympathetic reader it is not easy to accept many of its formulations. However, there are several invaluable lessons to be drawn from the book. Permit me to make a schematic presentation of these.
The first lesson is that spiritualism and morality may be ignored at our peril; a godless civilization will more easily condone the domination and suffering of others. Second, there is Gandhi's emphasis on the importance of the relationship of means to ends; he stresses that only fair means and respect of the dignity of the other can produce just outcomes. Third is his understanding that “civilization is that mode of conduct which points out to man the path of duty,” pinpointing for me the shortcomings in the Western discourse on rights. In Gandhi's view “real rights are as a performance of duty.” Fourth is the insight that technology can enslave as much as liberate us. Knowing that it was difficult to do away with technology once it comes into the world, Gandhi offers sane counsel that “the non-beginning of a thing is supreme wisdom,” where some technologies are concerned. Fifth is the priceless insight that you should not bear enmity toward those who oppress you but “towards their civilization.” Sixth was his novel attitude toward history; he taught that you should not think too much of history. He wrote that “a nation which has no history … is a happy nation.” Seventh was his unambiguous assertion “that [the idea] we should obey laws whether good or bad is a newfangled notion” that needed to be rejected. Finally, his stress on nonviolence, rooted in the belief that all thought was fallible and corrigible, deeply influenced my thinking. These insights took me further away from all forms of deterministic and dogmatic Marxism.
Sri Aurobindo, The Ideal of Human Unity
This understanding was further strengthened by the writings of Sri Aurobindo (1872–1950), who started life as an extremist in the Indian freedom struggle before turning to spiritualism. As a student of international law and relations, I was long looking for a text written by an Indian thinker that addressed the contemporary world order and its concerns. The search led me to this treatise written in the period 1915–19. It is remarkable for its vision of unified humanity and is worthy of critical engagement. The book made an impression on me because it dealt with various possible political arrangements that could serve humanity best.
Sri Aurobindo was sharply critical of the international relations of his times. He was skeptical of the nature and character of the bourgeois world order. For in his view the dharma of the bourgeois state was “self-protection and self-expansion by the devouring of others.” It always had its eye on markets and on political aggrandizement. However, Sri Aurobindo also perceptively discerned the emergence of “a cosmopolitan, international sentiment,” albeit admitting that this sentiment was, as yet, a nebulous and vague ideal though one which eventually advance the goal of human unity. He knew, of course, that the ideal of human unity could assume various political, including imperial, forms. He was thus critical of the mandates system, which he described as “that cloak which can cover with so noble a grace the hard reality of domination and exploitation.” Yet he saw the creation of the League of Nations (and later the United Nations) as a “capital event” and warned against pessimism. He believed that only a loose confederation, as opposed to a world state, would lead to a liberating unity of humankind.
Nevertheless, the central thesis of the book is that the ideal of human unity cannot be realized by social and political adjustments alone. A precondition for its realization was an “inner change” in humankind. In Sri Aurobindo's view, “a spiritual religion of humanity is the hope of the future.” In this, he was one with Gandhi. However, there are elements in Sri Aurobindo's corpus of work that lend themselves to misappropriation by the right-wing social forces of Hindu nationalism from which I firmly distance myself.
Albert Camus, The Outsider
The late sixties saw the rising influence of existentialism in urban circles in India. College-goers with pretense to intellectual inclinations read Camus and Sartre. It was Camus's The Outsider that left a deep imprint. The fact that the hero Meursault responded so differently from expected individual behavior told me that one did not have to accept social tradition unquestioningly. The particular situations and responses in the novel itself were irrelevant. It was the larger message that a “stranger” or “outsider” provides agonistic insights—from an unfamiliar vantage point—into our social world that stayed with me. Camus compels us to reflect, as well, on the notion of individual responsibility and its relationship to the search for truth. I have tried to understand this relationship by reflecting on the life of Gandhi who was responsible to his people in a way that few political leaders have been in the history of humankind but was accused by his own son of not being responsible to his family. Gandhi, like Marx, were quintessential outsiders. They remain inspirational figures for outsiders like me.
The choice of ten texts was a difficult exercise. I have had to leave out writings that have contributed in different ways to my thinking and work. To mention a few, there is Ashis Nandy's The Intimate Enemy, Edward Said's Culture and Imperialism, R. P. Anand's New States and International law, and Richard Falk's The Status of Law in International Society. For those of us in the non-West, the task of choosing influential texts is troubling in another way. We are often products of what are still colonial education systems. There are, thus, generations of postcolonial researchers who are more at home in Western social science and literature than in their own intellectual traditions, which explains the dominant presence of the former in my own list. There is, of course, no way of returning to the precolonial era. Equally, there is the recognition that there are no untainted ideas. The West/non-West dichotomy is thus deeply problematic. At the same time, however, there is an increasing realization of the need for cognitive reciprocity between Western and non-Western knowledge traditions if we are to come to terms with, among other things, the idea of “alternative modernity.” Such reciprocity will help produce ideas and social practices that can usher in a plural, democratic, and just world order.