[This book argues "against ‘cause-lawyering,’ writes reviewer
Bowring, "and attempts to hold corporations criminally liable." ]
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PORTSIDE CULTURE

THE CORPORATION, LAW, AND CAPITALISM  
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Bill Bowring
July 18, 2020
Marx & Philosophy Review of Books
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_ This book argues "against ‘cause-lawyering,’'' writes reviewer
Bowring, "and attempts to hold corporations criminally liable." _

,

 

_The Corporation, Law, and Capitalism
A Radical Perspective on the Role of Law in the Global Political
Economy_
Grietje Baars
Haymarket Books
ISBN: 9781642591873

Grietje Baars’s monumental – nearly 500 pages – work, _The
Corporation, Law, and Capitalism_ is now published in paperback at a
reasonable price. This reviewer hopes that readers will delve into her
passionately and clearly written engagement not only with the
corporation as the engine of capitalism, but with law itself.

Baars’s call to action is comprehensive, drawn from Marx’s _On the
Jewish Question_: ‘Our resistance must turn against the concept of
private property, against capitalism and _against law_: away from
_legal_ emancipation and toward _human _emancipation.’ (379) Baars
is against ‘cause-lawyering’, and attempts to hold corporations
criminally liable. For her, such activism and critique inadvertently
strengthens and creates value for capitalism. She supports her
arguments with a wide range of scholarship.

Baars is well qualified for such an undertaking. She started as a
commercial solicitor, and studied for her PhD under Catherine Redgwell
at UCL, from 2004 to 2012. The book was conceived in 2009. Baars was
then an in-house lawyer at Habitat, which enabled her ‘to understand
the real-life effects of the intricacies of global corporate group
structures as well as the relationship between human rights, contract
law and international production chains’. (xiii) Her life changed
dramatically when she spent time in the Occupied Palestinian
Territories, and participated in international conferences on the
enforcement of International Humanitarian Law there.

It was while she was in Palestine that, in her words, her ‘mind was
blown’ reading China Miéville’s 2006  _Between Equal Rights: A
Marxist Theory of International Law_. She was converted to the
‘commodity form theory of law’ of Yevgeniy Pashukanis, the most
interesting Soviet theorist of law, and his _Law and Marxism: A
General Theory _(1924). This is the theoretical heart of Baars’s
_The Corporation, Law, and Capitalism_.

She also spent time with the European Centre for Constitutional and
Human Rights (ECCHR) in Berlin, cause lawyers par excellence. Using
litigation, it tries to hold state and non-state actors responsible
for egregious abuses. Corporations have been particular targets. Baars
respects the work of ECCHR, but in her view it is counter-productive,
it achieves the opposite of what it intends.

Baars starts by setting out her theoretical framework. This is
entitled ‘Introduction: ‘_Das Kapital, das immer dahinter
steckt_’, which means, literally, she says, ‘the capital that
always lurks behind it’. She helpfully adds in a footnote: “I owe
this phrase to Fabian Schellhaas, who used it in his presentation in
March 2010 at Prof. Werle’s _Doktorandenseminar_ at the Humboldt
University of Berlin.” To which one can only respond “Gott hilf
mir!” Thankfully, Baars has few such impenetrable asides, though
this is on p. 1.

After this, the structure and contents of the book are as follows.
Baars has four chapters, and a short conclusion which is also a
substantive chapter, on ‘Corporate Imperialism’.

Chapter 2 is much longer than the Introduction, over 100 pages, and is
ambitiously entitled “The Roots, Development, and Context of the
Legal Concept of the Corporation: the making of a Structure of
Irresponsibility and a Tool of Imperialism”. This is the chapter in
which Baars presents her substantive and very interesting research on
law and on the Corporation.

Chapter 3 is about the same length, and at first glance has not much
to do with the theory of the corporation or of law. It is entitled
‘Capitalism’s Victors’ Justice? The Economics of World War Two,
the Allies’ Trials of the German Industrialists and their Treatment
of the Japanese _Zaibatsu_’, with two sections, on the Nuremburg and
Tokyo International Military Tribunals respectively. Baars’s purpose
in this chapter is primarily to criticise individual criminal
responsibility, and, in passing, the evident failure of the allies to
prosecutes the German corporations. This chapter is also the fruit of
meticulous research.

Chapter 4 is rather shorter, and is entitled ‘Remaking ICL: Removing
Businessmen and Inserting Legal Persons as Subjects’. It is divided
into three sections. 4A is “The Remaking of ICL: Lawyers Congealing
Capitalism”. I will return to this innovative transitive use of
“congeal”. 4B is “ ‘No Soul to Damn and No Body to Kick’?
Attribution, Perpetration and Mens Rea in Business”, and 4C is
“Re-making ICL: Who wants to be an International Criminal? Casting
Business in Contemporary ICL”. This again is Baars’s critique of
international criminal law, rather than corporations.

Chapter 5 is much shorter, less than half the length of the first two
substantive chapters, and also has an interesting title
‘Contemporary _Schreibtischtäter_: Drinking from the Poisoned
Chalice’. This chapter has a strong doctrinal focus on the
International Criminal Tribunals for Yugoslavia and Rwanda, the
Special Court for Sierra Leone, and the International Criminal Court
itself. Baars tells us that ‘_Schreibtischtäter’_ can be
translated ‘desk murderers’, ‘… carrying out the seemingly
innocuous tasks that lead or contribute to ‘physical’ crimes at
some distance removed from the office.’ (309)

This unusual structure, with two chapters of over 100 words, one of
almost 70, and three of something over 30, is somewhat reminiscent of
the Holy _Qu’ran_, in which the chapters are organised in order of
decreasing length.

As to the theoretical basis of the book, Baars states that ‘I use a
Marxist theoretical framework and method.’ Baars wants to define the
nature of capitalist law, where it came from ‘and how and why it was
created or why _law_ specifically was selected as opposed to other
forms of social organisation’. (9) However, the notion that law
under capitalism was created or selected (by whom?) seems rather
un-Marxist. Laws have been around since at least the Babylonian Code
of Hammurabi in about 1754 BC. Most Marxists, especially adherents to
‘historical materialism’, insist that the laws of a social order,
such as capitalism, are rooted in material conditions (forces of
production), and production relations. Elsewhere in the text, Baars is
much closer to such a conception.

The ‘commodity form theory of law’ (CFTL) as put forward by
Pashukanis in 1924 and applied to international law by Miéville in
2004, says Baars, ‘provides a clear and persuasive explanation of
_where law comes from _and _why it (was) developed_’ (10). She adds
that employing this theory enables her to show that the corporation
‘came from somewhere’. (11) She claims that in her book ‘for the
first time the [CFTL] has been applied in a sustained way to a
specific societal problem.’ (14) She briefly outlines CFTL in just a
little over two pages (16-18), which does not enable her to do justice
to the complexity of Pashukanis’s thought, or to its critics.
Nevertheless, she highlights her own advances: ‘Without departing
from the main tenets of the [CFTL], I adjust a number of Miéville’s
parameters to better fit some aspects of Marxist theory _and _the
questions I seek to answer’ (18). These adjustments are threefold:
first, her notion of ‘law’ rather than Miéville’s distinction
between national and international law; second, the concept of global
classes rather than Miéville’s emphasis on the international
state-system; and third, her foregrounding of imperialist economic
violence ‘perpetrated and participated in by the various types of
members of the global capitalist class rather than inter-state war per
se.’ (19)

Baars has two notable theoretical innovations of interest to Marxists,
the first of which I have already mentioned is her transitive use of
the word ‘congeal’. For her, law ‘congeals’ capitalism. The
second is her notion of ‘canned morality’. Both make regular
appearances from the beginning to the end of the book.

The word ‘congeal’ is employed by Baars in a number of different
ways as the book progresses. First, it is said that ‘law congeals
capitalism’, which means that the form and content of law are
determined by the mode of production. She adds: ‘Whatever material
relations exist, we design law, or law functions, so as to confirm,
support, congeal or concretise them.’ Further, the work of legal
scholars is ‘…the dialectical process of _law(yers) congealing
capitalism_’. (26) The next section is headed ‘_Lawyers Congealing
Capitalism: Who Constructs the Structure?_’. (Ibid)  Baars
subsequently adds: ‘…lawyers, through law, _congeal_ capitalism. I
deliberately use the verb _to congeal_ incorrectly here, to emphasise
the hidden agency behind a process that seems ‘natural’. (28)

In Chapter 2 Baars starts by referring to our failure to see law as
the ‘congealing’ of property relations. She links her own concept
to Marx’s ‘commodity fetishism’ and to the ‘congealing of the
corporate purpose of profit extraction in the 1844 [Joint Stock
Companies] Act’ (69). She continues that the corporation is a
‘structure of irresponsibility’ which is ‘capitalism
congealed’ (74), and adds that ideological forms ‘congeal’ the
state and the corporation. (92)

Leaving Corporations as such behind, Baars turns to the Nuremburg
International Military Tribunal. She explains why it was not a
failure: ‘by producing capitalism’s victor’s justice it played
an important part in this process of further congealing capitalism and
institutionalising international law.’ (198)  It was ‘members of
the (literal) ruling elite _congealing capitalism_’.  Indeed, she
says, ‘… lawyers’ construction of ICL (International Criminal
Law) ideology serves partly to _congeal_ ICL’s fluidity…’. (240)
Later in the chapter, Baars again emphasises the role of lawyers,
whose ‘congealing serves to further _rationalise_ criminal justice
policy’ (266). She asks whether if the International Criminal Court
regime were to congeal into Customary International Law, it would be
less useful for capturing corporate actors. (274) Finally, she writes
that ‘ICL thus forms an integral part of the structure of rules
congealing the economically exploitative relationships between the GCC
(Global Capitalist Class) and the GWC (Global Working Class).’ (341)
This last use of the word ‘congeal’ is rather opaque.

To turn to ‘canned morality’, this is introduced as a feature of
International Criminal Law (12). Baars explains: ‘Criminal law, more
than any other area of law, functions as society’s ‘moral guide’
and is thus a powerful ideological tool that can be deployed at
opportune political moments in the service of capitalism, as ‘canned
morality’. (23) The International Military Tribunals after WWII
were, she says, a display of ‘canned morality’ which ‘served the
prevailing mode of production by allowing ‘liberal lawyers’ to
express their individual humanitarianism and through this to construct
the ideological ‘play’ of the trials, while simultaneously
creating a ‘diversion’ for far-reaching economic intervention.’
(134)

Baars reveals ‘An Alternative Foundational Narrative for ICL’. Her
sub-heading ‘Canned Morality: a Commodity Form Theory of ICL’
reveals the ambition of her innovation. This is commodified morality,
producing ‘accountability’ in the Weberian sense, so that
commodified morality can be deployed to control and optimise public
sentiment. It unites us with the state against the accused, and _away
_from the structural questions_._ ‘_This _is what ICL is for’, she
declares (263). The ICL industry, she says, produces canned morality
to divert our attention from the structural causes of conflict (308).
Later, she explains that ‘corporate accountability thus equals
‘commodified (and canned) morality’ or ‘moral’ behaviour with
a clear economic benefit.’ (359) She adds that ‘… canned
morality is as far away from democracy as we can get.’ (374) Canned
morality also makes its appearance in the impassioned final pages of
the book, where Baars inveighs against cause lawyering, and legal
emancipation.

The reader must judge for themselves whether Baars has achieved a
significant development of Marxist theory, and whether her reading of
CFTL bears the weight she wishes to place on it, in particular
‘canned morality’ as the ‘commodity form theory of International
Criminal Law’. But there can be no doubting the passion and
scholarship, especially concerning the corporation itself and its
history, and the development of ICL, which are to be found on every
page of _The Corporation, Law, and Capitalism_. The book is indeed a
rewarding if lengthy read.

 

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