In order to stop my fellow vanugardist from constantly heckling me about my laziness and lack of a work-ethic I have decided to make a post. Frankly, I reserve the Right to be Lazy and fear that my comrade is infected with a hideous managerial work ethic. Anyway, this will not be the normal type of post here, as I am not Scottish. I am also far too much of a student for my own good, hence the content of this post.
So basically I am interested in Marxist approaches to the law. More specifically I am not a ‘Marxist looking at the law’ or a ‘lawyer who likes Marxism’ but I make some attempt to do both (although this shouldn’t be mistaken for an attachment to the law – because I’m really not). So in this post here I basically attempt to justify my odd position (although there are certainly a few contemporary Marxist legal theorists), and say why it is we might focus on law.
So the first thing I want to say is that a there hasn’t really been a lot of Marxist work done about law as a specific phenomenon. There have been quite a few works which (of necessity) include law as an element of the social totality, but many of these haven’t really been able to grapple with the specificity of law. So a lot of the time you’ll just hear that law is an ‘expression of the will of the dominant class’ or something, which – although it might have some useful content – tells you nothing about law as a specific phenomenon.
In this respect there is really only one ‘classic’ work of Marxist legal theory – E.B. Pashukanis’ General Theory of Law and Marxism – this is a work which has influenced me quite a lot. So I suppose later on in some posts I will expand upon the some theoretical points (or rather I’ll link or re-post some old stuff) and show how taking an in-depth position on legal theory (bearing in mind there is no revolutionary movement without revolutionary theory) actually does serve at least some practical purpose.
So, here I’m just going to outline some reasons why I think it’s interesting and important to have a Marxist account of the law. Basically, I want to move from more abstract questions to concrete questions, although obviously these two factors are intimately related.
Law and Liberalism
Anyone who wants to make any sense of liberalism has to engage with the law. On one level this is obvious. Most of the classical liberals from Hobbes to Locke to Montesquieu to Rousseau all had to explicitly deal with law. In fact in many of these account the law assumes an absolutely central role (Hobbes is someone who really springs to mind in this instance).
The importance of law to liberalism isn’t just a happy accident, it’s a result of the structure of liberal thought and its presuppositions about ‘human nature’. Whilst it’s always difficult to define a political position as amorphous of liberalism one can find certain commonalities of liberalism. Firstly, liberals have a certain theory of human nature – basically this holds that (at the very least) human being have a propensity towards selfishness and individualism. Closely linked to this is the fact that liberalism starts from the‘naturally independent, autonomous’ individual.
From this perspective you come to the central problematic of liberalism (and what I think is the best way to frame this). If you have a group of individual, selfish agents who need to interact in some way how can you fit this together. Since these individuals are meant to be independent, each with their own ‘plan of life’, they can’t be unified by any broad ‘purpose’, or good, or status.
It is at this point that the law becomes useful. Law is therefore seen in a double sense. Firstly, as people like Grotius thought it served as a way of demarcated the autonomous sphere of each individual. It creates a kind of shield of interlocking rights and duties. Secondly, and this is in a more Hobbesian vein, law serves as a non-moral ‘trump’ to individual disputes. This ‘trumping’ function is also how you can ‘coordinate’ the diverse lives of these ‘autonomous individuals’, because it provides a conclusive guide to what happens when individuals come into dispute.
But in a way this begins to seem a little contradictory, law is a device which both coordinates (in its trumping sense) and dissociates (in its ‘demarcating sense’), Pashukanis notes this contradiction, saying (General Theory of Law and Marxism, p.70):
Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society". On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it.
Without the law liberalism (ideologically) completely falls apart. It is forced either to revise its central presuppositions about human nature, or reject the autonomy of the individual, or support a Hobbesian ‘state of nature’.
It is not accidental therefore that the radical anti-liberal critiques concentrated to a large extent on the role of law and rights within liberalism. The main example of this is Carl Schmitt, German fascist and utter bastard – yet someone who focused particularly on the intersection of law and liberalism. But there is also Marx’s famous On the Jewish Question, and numerous bits of Lenin.
Now of course, this all remains rather abstract, but I think it does address real concrete problems. Firstly, the intimate connection of law and liberalism might tell us to be slightly wary of raises slogans about the ‘rule of law’, and making paeans to it. Furthermore, we of course live in a broadly ‘liberal’ society, and as such one in which law assumes (at least at first sight) a particularly important role.
Law and Capitalism
Of course, this all seems rather airy fairy (and believe me it will remain so), stuck in the ‘idea’ of liberalism. Yet, as I have argued before, liberalism is a product of capitalism. I’ll briefly go through this connection, and then I’ll explain some other reasons why capitalism and law are deeply interconnected.
The presuppositions of liberal theory begin to make sense when you analyse the historical transition from feudalism to capitalism (bearing in mind this was a long transition). So basically (and this is very sketchy) feudalism involved individuals being placed into static, customary rules. Their ‘rights and duties’, such as they were, arose by reference to their position in the political order.
The basic point is that in the transition to capitalism this status was demolished by the commodity form. Guilds and hereditary castes were broken up; the old system of land tenure (the connection of the peasantry to the land) was destroyed. So what we have here is a situation where individuals increasingly resemble the liberal vision of them. They no longer have any status based connection with their employer/employee, instead it is a relationship based solely on a cash nexus.
But simultaneously with this you have a great drawing together of people. Increasingly, owing to capitalist manufacture people are brought together, disputes inevitably arise, demarcation needs to take place. And here is the relationship between liberalism and capitalism, the problems of liberalism are the problems of capitalism – how do increasingly disconnected individuals, who are nonetheless brought into contact find a way to be ‘dissociated yet integrated’. So, in capitalism, as with liberalism, law plays a central role.
However, and as I will make clear later, the connection between law and capitalism runs deeper than the one described above. The above description shows that law is connected to capitalism because of the ‘solution’ to some of the problems it throws up. However, I (and in fact anyone who follows Pashukanis) think that there is a more structural connection between law and capitalism. This is a topic that is beyond the confines of this (already overlong) introduction. It is something I have written about before and will write about later. However, there are some opening things I would point out.
The most important thing to first note is that central to capitalism is the commodity. The commodity is the ‘unit’ of capitalism, and through the unfolding of its internal structure, and through many mediations you will eventually reach the state of the world today. However, as Marx notes:
It is plain that commodities cannot go to market and make exchanges of their own account. We must, therefore, have recourse to their guardians, who are also their owners Commodities are things, and therefore without power of resistance against man. If they are wanting in docility he can use force; in other words, he can take possession of them. In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to one another, as persons whose will resides in those object, and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must therefore, mutually recognise in each other the rights of private proprietors. This juridical relation, which thus expresses itself in a contract, whether such contract be part of a developed legal system or not, is a relation between two wills, and is but the reflex of the real economic relation between the two. It is this economic relation that determines the subject-matter comprised in each such juridical act.
In other words, the commodity relationship posits and presupposes the legal one, since in order to exchange a commodity (and a commodity is only characterised by exchange) one must recognise someone else as your equal. This connection is vastly important since it shows the primal connection between law and capitalism. On the level of commodity exchange (and this incidentally is why law pre-dates capitalism) the two are irrevocably and structurally linked.
This is of course central to the arguments of Lenin and Engels on the link between bourgeois ‘equality’ and the commodity form.
With this established one can go on to consider how the law is important to more concrete, everyday situations, which I’ll talk about next time I post. Also, I'll talk about why I think my philosophical orientation is best.