Friday, August 26, 2005

Law's Material Determinants

My internet connection has been down for a while, hence the lack of any entries in a few days. But since I have just written about the general form of law it seems appropriate to analyse law on a few other levels. What follows is a bit of an outline of a materialist legal theory, specifically operating within the Marxist position. Rather than an immediate in-depth exposition I will for today simply outline briefly how law is determined by material conditions:

1. As I have already outlined the legal character of the law is materially determined by commodity exchange. This form has wide-ranging consequences for content; I will later outline how the legal form dialectically conditions legal content. Thus in this instance we see how law is immediately influenced by economics.

2. The content of a particular statute is decided by legislation. A Marxist interpretation would see how legislation is influenced by political considerations; a Marxist analysis would posit that the particular content is determined by class struggle, and other material relations. An analysis needs to show the concrete methods in which class struggle influences legislation (an example of this would be Marx’s considerations of the regulation of the working day).

3. Indeterminacy/Underdeterminacy:

a. A particular statute, or piece of legislation, will have many different interpretations. Therefore there must be something that influences legal decisions aside from legal reasons (this will be expanded upon). A Marxist analysis needs to see how material relations influence the resolution of such underdeterminacy. In this way certain laws may be ‘captured’ and used for ends they may not have been ‘intended’ for at the first stage (witness the American constitution).

b. Furthermore, there is a fundamental underdetermination in the common law, as distinct from statute law. Here there is much more latitude for judicial decisions and different canons of interpretation/legal reasons will come into conflict. Again it is necessary to see how material relations will influence such a decision.

4. When a law is enforced it acquires force within a particular social totality. A fundamental Marxist principle is that integration into a totality alters content. Thus it is necessary to see how t even progressive laws can be organically integrated into capitalism; this is the notion of repressive tolerance or recuperation.

Of course such “levels” are simply an approximation and in practice there is a fluid interaction between these different degrees of materiality. Certainly the legal form makes itself known at all levels and the distinction between the third and fourth levels is a fine one. What such a model gives is a way of examining the law, a starting point if you will. That such a model may be transcended is unimportant, what it provides is an idea of how a Marxist legal theory might begin to coalesce and specific topics for empirical and theoretical research.

No comments: