Saturday, August 20, 2005

What is Law? Part 2: Locating the Legal Character

I lied.

Tiredness as a result of work meant that I really couldn’t be bothered to engage in any theoretical reflection, but I’ll attempt to do so today, though I may not be able to complete it. As I said previously one can identify law as a form of social regulation that takes on a “legal character”. Therefore in order to advance upon my previous post it is necessary to elucidate precisely what constitutes this legal character and how it came into being.

Once again this will necessitate a brief mediation upon the methodology necessary to discover the legal character. As I have already stated in order to fully understand the legal character of law it will be necessary to construct both a theoretical and historical account of the law. One cannot understand something unless one analyses its material and conceptual history. This might at first seem odd, one surely need not observe something’s history simply to understand what it is. Yet in Capital Marx does the very same thing, in Capital, Marx shows us that capitalism can only be understood historically and logically, whereby abstractions (i.e. the commodity form) grow dialectically, materially and historically into concrete systems

Therefore an analysis of the legal character of the law must be an ascent from the abstract to the concrete, in both analytical and historical terms. If one analyses the most abstract concepts of the law there is a historical convergence. The theoretical and practical existence of the law appears to be rooted in the clash of two individuals, one asserting an abstract right against the other.

This is easily seen by looking at the structure of a court scenario. Here the law, at its most visceral and practical, is seen as the clash of two subjects, mediated by some third force (the state), violence is then threatened or used against one of these participants, so as to “resolve” the dispute. This practical relation also sees it actualisation in the theoretical realm, where the concept of the individual “subject” is central. In his characteristic way Pashukanis therefore deduces that:

“[A lawsuit] elicits the form of law, the legal superstructure.”[i]

The form of law therefore, seems to be at its most basic “a person endowed with a right and actively asserting it”, the fact that “a person” is “actively asserting [a right]” implies the presence of a second subject, hence a legal form. From a simple observation of the operation of the law in society and the abstract categories of bourgeois jurisprudence one can begin to develop the “legal character” of law, that which differentiates it from all other social regulation. But in order to explain the law simply asserting this is not enough. Now that a basic but at the same time “pure” legal character has been developed it is possible to examine the development of such a character in history (“the anatomy of man contains the key to the anatomy of the ape”), and the material origin of this.

Understanding that which constitutes a legal character allows us to trace the historical emergence of such a character, and therefore the social relations that generated it. If we look at the legal form, two subjects, each asserting their rights and unified only in this bond there is an obvious capitalist social relation that bears similarity. Namely the commodity form, here, again, two subjects – as mediated through a relation – with opposed interests (buy low/sell high). There is an immediate homology between the two, yet the connection is deeper.

Historically we see the first tentative elaborations of “law” as an independent form of regulation in Rome. Now such regulation was certainly not binding on all people (and this in itself is an argument for the theory Pashukanis puts forward) but the legal form was certainly present. Rome was the first society in which commodity production took on a large role, and therefore this adds some credence to the connection between the commodity form and the legal form. As Marx puts it in the Grundrisse:

“In Roman law, the servus is therefore correctly defined as one who may not enter into exchange for the purpose of acquiring anything for himself (see the Institutes). It is, consequently, equally clear that although this legal system corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of the juridical person, precisely of the individual engaged in exchange, and thus anticipate (in its basic aspects) the legal relations of industrial society, and in particular the right which rising bourgeois society had necessarily to assert against medieval society.”[ii]

Aside from the simple homology between law and the commodity, there is a deeper material connection between the two. In a very real sense the commodity form is what gives birth to the legal form, and serves as its concrete foundation. Inherent in the commodity form there is an acute conflict of interest; the buyer and the seller, no matter what we are told, have mutually opposed interests, dispute is the defining factor of the commodity. Aside from the simple clash of interests (in terms of exchange values) there is another essential conflictual relation imbedded in the notion of commodity ownership:

“Violence – coercion – is at the heart of the commodity form. For a commodity meaningfully to be ‘mine-not-yours’ – which is, after all, central to the fact that it is a commodity that will be exchanged – some forceful capabilities must be implied. If there were nothing to defend its ‘mine-ness’, there would be nothing to stop it becoming ‘yours’. Coercion is implicit.”[iii]

Coercion and dispute do not always remain implicit; they were frequently actualised in trade. It is at this point that law, in its embryonic form, comes into being. In order curb the dispute violence is necessary; the violence inherent in the commodity form is therefore actualised as law, in the legal form. The contract, the central legal relation in all societies, is the direct actualisation of such conflict and violence; it is in this way that Walter Benjamin’s thoughts on the contract form acquire real significance. Benjamin and Pashukanis show the link between the violence in the commodity form and the violence that is the law. This is the manner in which the “lawsuit elicits law”; the conflict of interest is that which requires violence. Of course, this flies in the face of much convention wisdom, in that, at this point the state has not even been mentioned. Pashukanis instead seems to be concentrating on “subjective” rights, as against objective ones.

Of course the fact is that the violence needed to regulate such an interest is much more efficient when it is the violence of a third party (which is how Pashukanis derives the state – an approach I do not necessarily approve of). However, the fact is that what we are observing here are the material origins of law, that such violence is eventually regulated by the state does not change its historical origins. Furthermore, reasoning in this manner Pashukanis is able to stay faithful to the materialist thesis that the state is determined by civil society, particularly in its formation. Therefore one must observe the beginnings of “objective” law in “subjective” law.

Pashukanis brilliantly observes this movement in his General Theory:

“[T]he legal subject with the sphere of legal domination expanding around him was morphologically preceded by the armed individual or, more often, group of people, clan, horde, tribe, capable in a dispute or a battle of defending that which was the condition of their existence.”[iv]

The embryonic origins of the legal form have therefore been posited. However, this is not sufficient to fully explain the law. It must now be shown, historically, how the law is fully realised and how law comes to regulate more and more social relations. Although the duel and the dispute embody the legal form in its beginning stage they do not yet exist as law in its modern sense. The legal form, as it exists to day, is general in form, and posits abstract legal subjects; therefore it is necessary to examine how this generality comes about.

Therefore the next entry will entail describing the growth of the legal character into its more “pure” form, and a historical account of how this legal character comes to regulate other social relations.

[i] E.B. Pashukanis, op. cit., p. 67.

[ii] Karl Marx (1973), The Grundrisse, London: Penguin, p. 245.

[iii] C. Miéville, op. cit., (sorry no page reference can’t find my PDF of the article).

[iv] E.B. Pashukanis, op. cit., p. 80.

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