Symposium on Classism and the International Legal Profession: The Marginality of Post-Proletarian Societies in the Processes of Reconstruction of (Their) International Law

[Artur Simonyan is a PhD candidate at the University of Tartu, School of Law.]

Introduction

Laws that derive from Human Institution are different in different places. Visioned critically, international law likewise shares the same ontology. Both assertions sound equally logical and normatively valid within the dictum ‘all law is law in particular locations’. Nevertheless, supposing that laws’ differences ultimately relate to the human institution, it is syllogistic that jurists –interpreters of that ‘institution’ who, via the production of teachings, enrich sources of international law– are masterminds in the establishment of laws’ spatial variations. Thus, if international law differs in different places, international legal scholars are the first to produce that rationality. Following such logic, the validity of American, African, Transcivilizational, Third World, or even post-Soviet Eurasian approaches to international law is internalized only in jurists’ spatially nested interpretations. Empirically, international law’s spatial differences would be nonsensical without the legal-scientific contributions of Alvarez, Bipoun-Woum, Elias, Chimni, Anghie, Yasuaki, Tunkin, and hundreds of other legal pundits who have advanced the language of international law beyond the Western bias. Their explications have testified that Westernism (Eurocentrism) is neither a sine qua non for normative validity of international law nor a criterion for membership in the Schachterian invisible college.

Localizing regionally, do post-Soviet Eurasian legal scholars participate in reconstructing (their) international law in the post-Cold War order? Doubtless, some scholars from the region have meaningfully contributed to the development of the field. Still, comparatively very few legal savants from the post-Soviet Eurasian region have ‘affiliated to the post-1991 invisible collage of international lawyers,’ or leastwise visually, their involvement perdured being marginal. Can this be a ‘class’ problem? Presumably! After all, post-Soviet Eurasia is a space where even currently many legal scholars and practitioners acquired legal education during the Soviet period when the class approach to the law was prevalent. This contribution, therefore, concisely demonstrates some of the causes of continuing marginality of post-proletarian legal societies that foundered to reconstruct (their) international law. 

From Soviet to Post-Soviet Eurasian: Classism and Invisible College

Marxist classism structured Soviet law, generally, and international law and its theoretical foundations against the bourgeois theory of international law, particularly. The class approach has been the rudiment that has manifested the scholarly contrast of Korovin, Kozhevnikov, Tunkin, and other Soviet international law scholars as opposed to their Western counterparts. Therefore, delving into the materiality of last century’s history of international law, it is delusory to locate Soviet international lawyers in collaborative processes of invisible college, even after Tunkin elaborated the peaceful coexistence doctrine that aimed to devitalize the perpetual antagonism between two economic modes. Before Gorbachov, hardly any permanent reconciliation was feasible between bourgeois and Soviet international lawyers to establish a joint intellectual enterprise as both visions have avouched universality as an ultimate end. Communication between a Soviet and bourgeois international lawyer ultimately turned into a temporary and incoherent process, where divisibility has been more apparent than collaboration. In light of this, it is unsurprising that one of the influential contributions to comparative international law has the Cold War’s historical backing. But in fact, as perestroika evidenced, the Marxist class approach to law is not an obstacle to being part of an invisible college.

1989’s end-of-history narrative has become the new threshold for post-Soviet legal communities to understand, apply, and finally shape customarily alien liberal theory of international law. In the systematic transition from the Soviet’s Marxist-Leninist theory of law to post-Soviet law, the process has been marked by rising legal nihilism in post-Soviet Eurasian societies. Urgency, therefore, has been highly acute for newly formed local elites to train a new generation of legal scholars with the capacity to understand the ‘new international law.’      Paradoxically, these processes missed any direct discussion on the post-proletarian vision of the class approach to international law that has been prevalent for the preceding seven decades. Why do post-proletarians evade undertaking discussion on the class approach to international law? Fearfulness and agony chiefly expound the encounters of post-proletarians to classism, pending communist past and post-Soviet decommunization processes. When in Western academia, deliberation of class approach is merely an intellectual inquiry, in post-Soviet Eurasian space, Marxist analysis of international law may be spotted as an unsounded longing for communist memoirs. Afterall, for post-Soviet legal scholars, a grasp of classism and Marxism passes through living examples of Vyshinsky and Stalin rather than Marx or even Pashukanis as it is in the liberal west. Correspondingly, the realities of the past outline the post-Soviet narratives of class approach to law and international law. In these terms, the class approach to international law is not a categorically academic construct for many legal scholars in post-Soviet Eurasia. In post-proletarian societies –including within divisible or indivisible college of lawyers– the class approach repeatedly reminds of Stalinist purges, dekulakization, mass censorship, and family tragedies. Therefore, the theoretical richness of Marxist appreciation of international law disappears under communist evil. That is why in the post-1989 period, any meaningful contribution to Marxian theory of international law is occurring elsewhere –mainly in Western academia– but not in post-Soviet Eurasia, where Marxism ever received its spatial supremacy in humankind’s history, albeit several exceptions exist.

Many post-proletarian scholars, respectively, strive to revitalize their visibility by elaborating of pseudo-legal constructs, which they failed to withstand. For instance, some of them generated the idea that it is vital to continue the maintenance of the critical distance from the capitalist West by reconstructing a new legal family as opposed to the continental and common law systems. Systematically, they propounded to constitute a Eurasian legal family, subsuming the whole post-Soviet space, which would normatively challenge the domestic approval of the continental system and formally structurize the post-socialist visions. In such a search, post-proletarian scholars namely aimed for a panacea for their post-proletarian struggle to raise their visibility in the artificial homogeneity of the 1991 world invisible college. However, such attempts, missing philosophical and consistent foundations, have yet to reach any spatial endorsement in post-Soviet Eurasian space.

As a result of these fears and lack of systematic formalization of the post-proletarian vision of a class approach to international law, early generations of post-proletarian scholars not only appeared in existential crisis but also struggled in transferring legal knowledge from generation to generation both content- and form-wise. Legal education, therefore, has borne all the malfunctioning of the transitionary period. 

Legal Education: Who is the Post-Soviet Eurasian International Legal Scholar?

Post-Soviet Eurasian legal education has been inadequately systematized to train the new generation of international legal scholars because of a shortage of competent pundits, relevant legal literature, and a relative lack of scholars who mastered the new lingua franca of international law – English. Thereby, many young scholars –seeking alternatives– started pursuing their studies abroad, specifically at Western universities.
In post-Soviet Eurasia, education in foreign universities is considered a precious achievement for gaining domestic recognition, fame, and easy access to mid-level governmental bureaucracy. Alas, the economic context is not beneficial for mass international educational exchange. Accordingly, very few legal scholars graduate from western universities, most of whom are from wealthy or middle-class families. Thence, access to scholarships or other public or private funds has become indispensable for students from underdeveloped or developing post-Soviet Eurasian societies to pursue academic and professional activities abroad. These scholarships and funds have become the primary, if not the only, path for post-Soviet Eurasian legal scholars to join traditionally alien invisible colleges headquartered in the Global North. Resentfully, the objectives of these funds and what Oscar Schachter represents as an invisible college are contradictory. Domestically, although almost in every post-Soviet Eurasian country, there are opportunities for local students to obtain a scholarship for studies abroad, almost in all cases, these funds are either under the direct control of the state or under the patronage of local political elites. Thereupon, most of these scholarships cement a divisible college with the mission of power preservation of local elites rather than promoting the visibility of post-Soviet Eurasians internationally.

Another prospect for post-Soviet students is funds and scholarships administrated by Western states and organizations. The EU, British, American, German, and other Western governments have launched arrangements that allocate structural funds to the citizens of post-Soviet Eurasian states to acquire higher education abroad. Interestingly, local and international funds pursued generally conflicting goals. If local elites –through the formal and informal allocation of resources– attempted to train legal scholars who could bolster elites’ power preservation, the Western states –utilizing different structural funds– attempted to educate a new group of scholars who understand and finally locally disseminate an international law based on shared values of Western states. In this latter sense, the international funds opt for Westernizing and liberalizing effects of legal studies that academic institutions in the Western hemisphere generally practice. Therefore, these funds not so much raise the visibility of post-Soviet Eurasian scholars in the invisible college but attempt to make them agents of the Global North. Additionally, under authoritarian regimes, most of these legal scholars trained abroad neither return home to bring the desired changes to the legal system nor become the true envoys of post-Soviet Eurasian states in international forums. After all, apart from members from Russian Federation, no other post-Soviet Eurasian scholar has ever been appointed as a member of the ILC or the ICJ. This failure was conditioned upon fears of post-Soviet Eurasian legal scholars not to be part of the mimicry and reproduction of liberal norms under authoritarian regimes, which Tom Ginsburg theorizes as authoritarian international law in post-Soviet Eurasian space. Others, who return and maintain their Westernized percipience, face the scarcity of financial resources to raise their international visibility after successful studies in Western academia. For instance, in 2013, some Armenian legal scholars, most of whom graduated from Western universities, established the Armenian Yearbook of International and Comparative Law. After two publications in 5 years, the Yearbook suspended its activities in 2017.

With a more conservative mindset, the rest join the governmental machine and alienate from the invisible college of international lawyers by joining their own divisible college and automatically turning it into an empirical case under the comparative international law framework. This is observable in Russian approaches to international law but can be easily generalized for post-Soviet Eurasian space, where Russia preserves its primus inter pares status and hegemonic norm-setting role.

These cases demonstrate that membership in the contemporary international legal community necessitates enormous financial resources, which post-proletarian societies in the post-Soviet Eurasian space utterly lack. Membership in invisible college has its own ‘fees’ that law scholars in the post-Soviet Eurasian region are incapable of paying, yet when ‘borrowing’ from private and public funds, they either sustain their membership conditioned upon the availability of such funds or, what is worse, disgruntle themselves in their divisible college. When a Westerner has a lifetime membership in the invisible college, post-Soviet Eurasian only has a temporary presence due to the scarcity of financial resources.  

Conclusion

We cannot premise that Alejandro Alvarez could depict his celebrated construct of ‘American International law’ without the sponsorship of the Carnegie Endowment and the encouragement of US authorities. Likewise, we do not know if F.F. Martens could elaborate his treatises on international law and the well-known ‘Marten’s clause’ without the aegis of the Russian imperial court. The transition from one ideologically driven system to another requires the courage of legal scholars to objectively regard the past and present yet also financial resources to organize the unperturbed transition. The post-proletarian legal scholars immensely endure these prejudices. Correspondingly, they marginally engage in the global communication of international lawyers, whereas their issues are discussed in different ‘Badinter Committees’. In the world of invisible college Heidelberg symposium on the question of Crimea has not been a normality but remained an exception. As a result, the reality is that we, the post-Soviet ‘decedents of proletarians,’ still either struggle to be part of Schachterian invisible college or, what is even worse, reconstruct (our) international law that is so much needed at post-Soviet Eurasian region.