Thursday, 24 November 2022

The New Form of Capitalist Militarism: The Permanent State of Exception (on Critical Legal Thinking, 24 November, 2022)

"Today, we face the choice exactly as Friedrich Engels foresaw it a generation ago: either the triumph of imperialism and the collapse of all civilization as in ancient Rome, depopulation, desolation, degeneration – a great cemetery. Or the victory of socialism, that means the conscious active struggle of the international proletariat against imperialism and its method of war."

Rosa Luxemburg (1915)

Rosa Luxemburg was an anti-war theorist and activist and she, as a co-founder of the Spartacus League, gave her life to her ideas and activism. We live in an era in which we must reconsider how we have thought about war and peace. As can be seen most recently in the case of the Russian aggression in Ukraine, we have become accustomed to receiving streamed versions of wars and humanitarian conflicts through the media. The separation of war from politics was a fundamental goal of modern political thought and practice among liberal and non-liberal political theorists – one which Rosa Luxemburg already agitated against at the beginning of the 20th century. On the one hand, the nature of war has changed in the sense that war is rarely seen as a conflict between independent nation-states (although the war in Ukraine is itself a counterexample). On the other hand, the line between war and non-war is blurred: there are several political actors who are interested in introducing the permanent state of exception elaborated by Giorgio Agamben. In the 20thcentury this came to its apogee with totalitarianism, and in the 21st century it continued in the framework of hybrid regimes created by right-wing nationalist populists. I will analyse here what the capitalist militarism of our time means in light of exceptional measures of governance. However, the exceptional legal and political situation can by no means be unlimited in the sense that, despite the exceptional legal regime introduced at national level, the fundamental system of international law and in particular human rights is not suspended. This is especially true if the state of exception is, with Rosa Luxemburg, understood as a modern form of capitalist militarism. In the following, I will address how the instruments of international law can be used to limit the capitalist militarism inherent in exceptional governance, thereby humanising it, also in the Luxemburgian sense.

Imperialist War, Capitalism, Social Democracy

Before the First World War, when Rosa Luxemburg was politically active, the anti-imperialist and anti-colonialist attitude was very weak among the Socialist parties. Indeed, the Socialist International Congress of 1907 in Stuttgart instated that there were some positive aspects of colonialism. The first World War, which can be seen as a fight between the imperialist powers for the division of the colonies, was supported by the majority leaders of the Socialist International. Rosa Luxemburg ardently opposed imperialism and put an emphasis on the danger of imperialist war: ‘In the event of a threat of war it is the duty of the workers and their parliamentary representatives in the countries involved to do everything possible to prevent the outbreak of war by taking suitable measures, which can of course change or be intensified in accordance with the intensification of the class struggle and the general political situation’.

There was a shared and unfounded belief among the Socialist ‘Marxist Centre’ (Karl Kautsky, Eduard Bernstein) concerning capitalist or bourgeois pacifism: they argued that ‘imperialism was not a necessary outgrowth of capitalism, but an abscess which the capitalist class as a whole would more and more wish to get rid of’. They were convinced that peace would become universal and the armaments race could be overcome by general disarmament agreements, international arbitration courts, peace alliances, and the formation of the United States of Europe. In contrast, Rosa Luxemburg saw that capitalism is impossible without expansion, and capitalism and militarism go hand in hand. She put a sharp emphasis on the militant nature of capitalism: ‘Militarism fulfils a quite definite function in the history of capitalism, accompanying as it does every historical phase of accumulation’.

Luxemburg analysed the function of capitalist militarism: in the period of ‘original accumulation’, capitalist militarism was a crucial part of colonialism and conquering the parts of the world outside of Europe, destroying the social structures of non-European societies, and later becoming a weapon in the struggle between capitalist and non-capitalist states. The main assumption about capitalist militarism which evidently makes the beliefs in capitalist pacifism an illusion is that militarism is a pre-eminent means for the realisation of surplus value. It can be said that Rosa Luxemburg in a unique way indicated the changing nature of militarism and war becoming commonplace in capitalist societies: she ‘showed that imperialism and imperialist war could not be overcome within the framework of capitalism, as they grow out of the vital interests of capitalist society’. Rosa Luxemburg elaborated this in the Guiding Principles of the Spartacus League:

The struggle against imperialism is at the same time the struggle of the proletariat for political power, the decisive conflict between Capitalism and Socialism. The final aim of Socialism can be achieved only if the international proletariat fights uncompromisingly against imperialism as a whole, and takes the slogan ‘war against war’ as a practical guide to action…(cited by Cliff, 1969).

The Changed Nature of Capitalist Militarism in the Populist Era: From the State of War to the Permanent State of Exception

The militarist nature of capitalism and the appearances of warfare have been redesigned in contemporary societies. New forms of militarist capitalism are based on the privatisation and domestication of warfare, incorporating it to our everyday life. Militarist capitalism consists of state militarism which is ‘ultimately in the hands of capital itself through the executive and legislative apparatus of the state and through the press, whose function is the production of so-called public opinion’. Rosa Luxemburg saw very sharply the challenges of militarism-fixed capitalism:

The triumph of imperialism leads to the annihilation of civilization. At first, this happens sporadically for the duration of a modern war, but then when the period of unlimited wars begins it progresses toward its inevitable consequences. Today, we face the choice exactly as Friedrich Engels foresaw it a generation ago: either the triumph of imperialism and the collapse of all civilization as in ancient Rome, depopulation, desolation, degeneration – a great cemetery. Or the victory of socialism, that means the conscious active struggle of the international proletariat against imperialism and its method of war. This is a dilemma of world history, an either/or; the scales are wavering before the decision of the class-conscious proletariat.” (Luxemburg, 1915).

Following Rosa Luxemburg, who studied the methods of militarism in historical versions of capitalist societies, we can gain an insight into the role of militarism in contemporary neoliberal and globalised capitalism. In the 21st century, warfare has been totally redesigned: first, the technological changes have reshuffled the very meaning of war (for instance the battlefield has become virtual, war is an ongoing phenomenon on the Internet in the form of cyber warfare; increasing numbers of people are engaged in warfare; new wars involve state and non-state actors (from terrorist organisations to private warfare companies); moreover, war itself has been privatised through private companies being engaged in war. There is a hybrid, unconventional, irregular warfare which is part of a complex military strategy. These tendencies, as Hardt and Negri analysed, depend on the decline of nation-state sovereignty and the emerging of the globalised neoliberal capitalist system. Mary Kaldor states that despite the new warfare being essentially localised, it involves a myriad of transnational connections. Contemporary war is privatised and globalised at the same time.
Exceptional Measures and the Rising of the Executive Power

There is a remarkable tendency in the fields of contemporary authoritarian populism in power: it is beginning to use the concepts of capitalist militarism to regulate human life, creating a permanent state of exceptions. The fusion of police and penal state causes a kind of exceptional government blended with capitalist militarist tendencies. In states of exception-based populist regimes, as Giorgio Agamben argues, ‘[a] formal state of exception is not declared and we see instead that vague non-juridical notions – like the security reasons – are used to install a stable state of creeping and fictitious emergency without any clearly identifiable danger.’According to Agamben there is a seminal transformation in conjunction with the idea of government, ‘which overturns the traditional hierarchical relation between causes and effects. Since governing the causes is difficult and expensive, it is safer and more useful to try to govern the effects’.

An example of the authoritarian misuse of the state of exception and the militarised use of extraordinary measures of government is the Orbán regime established in Hungary after 2010, which practically serves the interests of national and international capital and operates a nationalist communication strategy with state capitalist instruments. Exceptional politics started with the refugee crisis of 2015 and a biopolitical hate campaign unfolded based on the biological demonstration of the ‘enemy’; a hate campaign on the streets; fencing off the border and, moving beyond the migrant crisis, the campaigns against Brussels, NGOs, George Soros and internal enemies of the regime. In Hungary, the refugee crisis did not in reality cause a serious social and political challenge; however, the regime was able to create a long-lasting exceptional situation without any real danger. The Orbán regime, with regard to migration, introduced and prolonged the state of exception in legal terms. The COVID-19 pandemic boosted the use of extraordinary measures by the regime. In line with the waves that have unfolded since the outbreak of the COVID-19 crisis, the Hungarian government has declared three states of exception due to the coronavirus situation: 11 March 2020 (decree of government 40/2020), 3 November 2020 (decree of government 478/2020), 8 February 2021 (decree of government 27/2021). Each extraordinary period was associated with the so-called Empowerment Laws, which are special authorisations of the incumbent Hungarian government by the Parliament, an authorisation to implement long-term governance by decrees. At the time of the outbreak of the coronavirus crisis, a state of exception regarding the crisis caused by mass migration was already in force, for which the exceptional legal regime was introduced by the enabling laws in response to the three waves of the epidemic. Thus, at the time of the 2022 elections, the states of emergency were stacked on top of each other, and it was only after the elections in 2022 that the state of emergency on COVID-19 was suspended, while a new state of emergency was immediately introduced in connection with Russian aggression in Ukraine. The tenth amendment of Fundamental Law introduced the possibility of declaring a state of emergency in the event that an armed conflict is taking place in a neighbouring country. Soon after, the government declared a new state of emergency by decree 180/2022 (24 May).

International Law as a Constraint on the State of Exception?

Extraordinary measures introduced at the level of the nation-state, opposed by the people in several countries, represent a series of abuses and anti-democratic tendencies and can serve capitalist militarist ends, as described by Rosa Luxemburg. I argue that we must return to the anti-war theory and practice of Luxemburg, renewing it according to the changes to capitalist militarism and the challenges of our time. Against the background of climate crisis, it is necessary to address state of exceptions at the global level, within the framework of international law and international human rights. As Anna-Lena Svensson-McCarthy argued in The International Law of Human Rights and States of Exception:

‘the notion of a democratic society is inherent in the international law of human rights and constitutes an objective legal parameter which determines the legitimate aim and necessity of restrictions on the exercise of human rights, be they ordinary or extraordinary. Thus, rather than being a concept the contents of which is difficult to seize, the international law of human rights provides a core notion of a democratic society which is equally valid at the regional and universal levels’.

The exceptional legal regimes that are being introduced in the context of the global ecological and climate crisis and its effects can be important tools for the protection of societies, but the prevalence and institutionalisation of war and militarism discussed above also makes the tools of exceptional governance a sui generis threat of our time. A new balance must be found by international lawyers between the rule of law and the need for security expressed in the restriction of human rights. The narrative of securitisation by the authoritarian populist forces of our time can only serve to strengthen the executive and contribute to the abusive application of exceptional governance.