Articles & Book Chapters by Tor Krever
London Review of International Law, 2024
As Israel’s assault on Gaza continues into its tenth month, the language of legality has become t... more As Israel’s assault on Gaza continues into its tenth month, the language of legality has become the dominant frame of popular and political discourse. Public interest in the International Court of Justice (ICJ) and its proceedings is at a level perhaps never seen before; so too in the International Criminal Court (ICC), its Prosecutor at once urged to act and condemned for inaction, his recent request to judges for the issuing of arrest warrants both celebrated and damned. International law has emerged as the global vernacular of both condemnation and legitimation; few commentators today speak of Gaza or Palestine without invoking the language of il/legality. What are we to make of this groundswell of interest in and resort to international law? What is the significance of the current series of ICJ proceedings and popular engagements with them? How should we think about the clamorous championing of The Hague and its institutions as the harbingers of justice? The editors of the London Review of International Law invited our advisory editors and others in the academic community of critical scholars to reflect on these questions.
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Law, Culture and the Humanities, 2024
This article uses legal and literary accounts of Francis Drake's 16th-century depredations to con... more This article uses legal and literary accounts of Francis Drake's 16th-century depredations to consider the historical figure of the pirate in legal thought. Against the transhistorical figure of universal enmity of many international legal accounts, the article argues that the 16th-century pirate was a fundamentally contested figure reflecting contrasting juridical-political visions of world order. In the 16th-century Spanish imagination, piratical enmity, rooted in confessional identity, posed a threat to a universalising res publica Christiana and the juridico-political structure of Christendom. The emergence of a nascent English commercial imperialism challenging Iberian dominance in the Americas undergirded a quite different legal and literary piratical identity, Drake not heretical foe but vanguard of English imperial aspirations.
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Brian Cuddy and Victor Kattan (eds), Making Endless War: the Vietnam and Arab-Israeli Conflicts in the History of International Law (University of Michigan Press, 2023), 2023
Peoples' tribunals are marked by a tension between the legal form and name these bodies chose to ... more Peoples' tribunals are marked by a tension between the legal form and name these bodies chose to take—the tribunal—and their avowedly political nature. This chapter compares the Russell Tribunals on Vietnam and Palestine, showing how in both cases this tension resolved itself concretely into the question of these bodies’ relationship with international law. In both cases, international law and legality were foregrounded as the privileged frame of analysis and condemnation. Yet the two tribunals also differed in important respects, reflecting a shift over time in how the constitutive tension between law and politics was balanced. The embrace of international law by the Vietnam tribunal in the 1960s, at the height of the Third World movement and anti-colonial internationalism can, the chapter suggests, be understood as an instance of ‘principled opportunism’—legalism mobilised in aid of the tribunal’s broader practice of resistance against imperialism. By the time a peoples’ tribunal for Palestine was constituted in 2009, however, both Third World and workers’ movements had collapsed, the language of international law and human rights displacing other emancipatory frameworks in the political imagination of internationalism. This can be seen, the chapter argues, in the even greater prominence awarded legalism by the Palestine tribunal, international law now not merely invoked tactically, but celebrated as the tribunal’s very raison d’être. In this way, peoples’ tribunals both reflect, and contribute to, the juridification of resistance.
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London Review of International Law, 2024
The move to Open Access publishing has been driven in large part by a desire to make research pub... more The move to Open Access publishing has been driven in large part by a desire to make research publicly available and to make knowledge less exclusive. The journals that we edit have long been committed to these objectives. Yet as emerging forms of Open Access publishing are gaining greater recognition, it is important to address some of their potential unintended consequences. These include: (1) a risk that certain groups of authors will no longer be able to publish their work because of a lack of access to funding or to institutions with funding; (2) a risk that editorial decisions may be perceived as being shaped by the author's affiliation, as such affiliation may influence the ability to pay publishing fees; (3) a risk that authors lose the freedom to decide where to submit their work due to their institutions' selective agreements with publishers or research council instructions; and (4) the risk that journals' financial viability becomes more and more dependent on the quantity of articles for which Open Access fees are charged, rather than the quality of curation. While the journals that we edit are moving toward full Open Access, we share these concerns to encourage a discussion with our authors, readers, publishers, fellow editors and academic communities about how best to address these risks. Understanding these concerns requires first addressing the rise of Open Access and its different forms, including the funding structures.
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New Left Review, 2021
Tor Krever on Jennifer Pitts, Boundaries of the International. Formation of international legal t... more Tor Krever on Jennifer Pitts, Boundaries of the International. Formation of international legal theory in Europe’s encounters with its eighteenth- and nineteenth-century Others.
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London Review of International Law, 2021
Dennis Davis is Judge of the High Court of South Africa, Judge President of the Competition Appea... more Dennis Davis is Judge of the High Court of South Africa, Judge President of the Competition Appeal Court, and Honorary Professor of Law at the University of Cape Town. In this wide-ranging conversation with Tor Krever, he reflects on his political and intellectual trajectory—from early encounters with Marx to anti-apartheid activism to a leading position in the South African judiciary—and his lifelong commitment to a radical left politics.
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New Left Review, 2020
With US president-elect Joe Biden pledging to restore the ‘rules-based order’, international lawy... more With US president-elect Joe Biden pledging to restore the ‘rules-based order’, international lawyers have extolled the triumph of a peaceful new world over its war-torn forerunner. This article scrutinises this narrative through the work of two recent propagators. It explores the relationship between international law and imperialism, looking back over the broad arc of international legal history, from the world of Hugo Grotius, through interwar efforts to outlaw war, to the present day of NATO bombs and US sanctions. Lamenting the emergence of yet more consoling homilies for liberal imperialism, it argues for imperialism as the structuring logic of international law.
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Tor Krever, 'The rule of law and the rise of capitalism', in Christopher May & Adam Winchester (eds), Handbook on the Rule of Law (Edward Elgar, 2018) 184-200
This chapter considers the relationship between the rule of law and the rise of capitalism. It of... more This chapter considers the relationship between the rule of law and the rise of capitalism. It offers a mapping of the two most prominent theoretical traditions which have sought to understand this relationship, namely those associated with Max Weber and Karl Marx respectively. It begins with a discussion of Weber’s contribution before tracing the contours of a genealogy of what I call the neo-Weberian tradition, an arc which passes through the modernisation theories of Talcott Parsons and the Law and Development movement and ends at contemporary theories of ‘good governance’ now dominant in the major international financial institutions (IFIs). The chapter then turns to an alternate tradition of thought. It sketches an outline of Marx’s insights on law and its origins in capitalism before discussing two prominent approaches to this relationship which build on Marx’s own lapidary remarks. The first emphasises class struggle in the shaping of a capitalist rule of law, while the second traces the very legal form itself to the rise of capitalism. The chapter concludes with a brief discussion of the political stakes involved in these debates.
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London Review of International Law, 2017
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London Review of International Law, 2017
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New Left Review 106, July-August 2017, pp 148-160
This essay engages with David Kennedy's work on international law, global governance and expertis... more This essay engages with David Kennedy's work on international law, global governance and expertise and, in particular, his most recent book, 'World of Struggle'. It places that book in the context of his broader oeuvre and traces the continuities that mark this body of work. The essay argues that 'A World of Struggle' is an important corrective to celebrations of technocratic management, laying bare the ways in which modern expertise encourages us to mistake the present for the possible. At the same time, however, it offers a trenchant critique of Kennedy’s ultra-nominalism and focus on discourse at the expense of material concerns. His apologia for capitalism, the essay concludes, effects an ideological erasure as politically debilitating as any expert argument.
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Honor Brabazon (ed.), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Routledge, 2017)
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Critical Legal Thinking
This essay considers recent debates about an alleged anti-Africa bias at the International Crimin... more This essay considers recent debates about an alleged anti-Africa bias at the International Criminal Court and the announced withdrawal of several African states. It looks at international lawyers' responses to these developments, considering some of the common defences against charges of bias, before suggesting that the African-bias debate in fact distracts from more fundamental problems with the ICC.
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This article considers the origins and evolution of the International Criminal Court, examining t... more This article considers the origins and evolution of the International Criminal Court, examining the context of the court's establishment, the motives of the states that set it up and the record of its operations to date. Tracing the ICC's geopolitical tacking through a decade of imperial warfare, it argues that the court's selective and highly politicized interventions have operated to reproduce one-sided narratives of complex conflicts, demonizing some perpetrators while shielding, and legitimating, imperial powers: less a tool of international justice than the judicial concomitant to Western intervention.
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The article engages in an ideology critique of international criminal law texts and discourse, dr... more The article engages in an ideology critique of international criminal law texts and discourse, drawing on a theoretical framework developed by critical legal studies scholars in order to interrogate, in a different jurisprudential context, the assumptions undergirding contemporary international criminal law (ICL) scholarship. It argues that the triumphalism surrounding ICL and its adequacy to deal with conflict and violence ignores the factors and forces—including specific international legal interventions in countries’ political- economies—that shape or even help establish the environment from which such conflict and violence emanates. In uncritically celebrating ICL and equating it with a pacific international rule of law, ICL scholarship risks shaping passive acquiescence in the status quo and discouraging more through-going efforts to address the systemic forces underlying instances of violence, including political-economic forces shaped by international legal institutions.
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Radical Philosophy, No 195, pp.61-63 (2016)
A review of Amedeo Policante’s 'The Pirate Myth: Genealogies of an Imperial Concept', a book that... more A review of Amedeo Policante’s 'The Pirate Myth: Genealogies of an Imperial Concept', a book that ‘rescues the pirate from the marginalia of international relations, throwing a light on his role as empire’s constitutive antagonist. While his juridical identity may have changed, the pirate has nonetheless remained a constant lodestar in a fluid seascape of imperial violence.’
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An extended interview with Duncan Kennedy about his intellectual and political formation, contrib... more An extended interview with Duncan Kennedy about his intellectual and political formation, contributions to legal theory, the history of Critical Legal Studies, and further topics including Marxism, legal indeterminacy, and the globalisation of legal thought.
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Development thinking in the past two decades has explicitly embraced law as an engine of developm... more Development thinking in the past two decades has explicitly embraced law as an engine of development. This legal turn has been accompanied by a dramatic expansion of efforts to measure and quantify legal systems. Against claims that legal indicators are neutral, technical descriptions of the legal world, this article argues that legal indicators do not merely reflect legal reality; their construction and deployment are central to the continuing diffusion of neo-liberalism as development common sense. The article considers the two most prominent projects to quantify law in the service of economic development—the World Bank’s Worldwide Governance Indicators and Doing Business indicators— and argues that these indicators reproduce a narrow neo- liberal conception of law as a platform for private business and entrepreneurial activity and institutional support for a system of laissez faire markets.
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Long cherished by liberal political philosophers, today the rule of law is increasingly viewed as... more Long cherished by liberal political philosophers, today the rule of law is increasingly viewed as a necessary requirement, or even silver bullet, for economic development. The past decade has seen the rise of a veritable industry—multilateral development banks, government development agencies, and nongovernmental aid organizations—committed to promoting the rule of law through legal and judicial reform in developing countries. This Article considers the emergence of a new rule of law orthodoxy within contemporary devel- opment theory and, in particular, the World Bank’s development model. It asks how and why the Bank has embraced the rule of law discourse, and offers a brief genealogy of the rule of law within the Bank’s theorizing. It argues that the Bank’s interest in law was primarily a response to the critique and failure of its neoliberal policies and identifies the new discourse’s affinities with the rise of New Institutional Economics and “good governance” in the 1990s. Under the Bank’s view, the law’s value for economic development lies in its ability to provide a stable investment environment and the predictability necessary for markets to operate. The role of law is reduced to the facilitation of utility maximizing exchange and optimal market allocation, a view that informs many of the Bank’s specific law reform projects. More a rhetorical shift than a fundamental break in development theorizing, the Bank’s turn to law actually undergirds many continued neoliberal assumptions and masks a continuation of neoliberalism’s core tenets. The new discourse is attractive precisely because it provides strong ideological support for the neoliberal agenda.
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This paper reflects on the first ten years of Unbound: Harvard Journal of the Legal Left, conside... more This paper reflects on the first ten years of Unbound: Harvard Journal of the Legal Left, considering how that journal's project has taken shape and taking stock of the journal’s strengths, as well as its failures and shortcomings.
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Articles & Book Chapters by Tor Krever