Wednesday, August 17, 2005

What is Law?

The question as to what precisely constitutes “law”, as a specific social phenomenon, is a very important one, but only within certain methodological limits. The approach I will take to this question is one that is intimately connected with Pashukanis; in fact much of what I will now say will be rooted in Pashukanis’ General Theory of Law and Marxism. Before going onto analysis proper it is necessary to note that an exposition of what law is will not necessary be massively detailed. This is because such an undertaking can only really be abstract, and is merely an analysis, the real meat of Marxian legal theory lies with examining the concrete determination of specific laws, and the methods in which particular laws come into being.- these are questions relevant to a comprehensive Marxian legal theory, but not to this particular question.

It is also important to remember that this is a Marxist analysis, and therefore there are limits to the enquiry. The methodological considerations here are that a material, dialectical and historical path must be pursued. Therefore, the point of this analysis is not to construct the “concept” of law, or develop an idea of a pure idea of law, that is constructed solely in thought. Rather one must look at law as it has been historically and materially constituted across the world, this will of course entail some “theoretical abstractions”, as one must find the underlying material/social relations that give rise to law, but this is not the same thing as building a wholly abstract ideal.

Pashukanis approached this question in a very specific way; firstly, Pashukanis takes the opinion that, no matter how incorrect they are, juridical abstractions do represent some kind of objective reality. Just as bourgeois political economy can represent the truth of capitalist economy, bourgeois jurisprudence can represent the truth of law. Thus throughout any examination of the law one must bear in mind concepts like the “legal subject”.

An exposition of this sort cannot remain purely descriptive, in that as one puts forward one’s own analysis one must simultaneous say why this is more correct than any other approach, thus description must also be critique. The first historical material question proposition one must put forward is an obvious one. At its most basic law is a social relation that serves to regulate conduct, thus its content will always be normative. As a beginning definition this is useful, as an indisputable foundation upon which to begin an analysis, but it clearly cannot give us a proper definition of law is.

Let us, for a second, imagine that we were to take this position, that we could define law in this way, by the fact of its normativity, Pashukanis (after his politically motivated self criticism) was to put forward a very similar position, namely that law is “the form of regulation and consolidation of production relationships and also of other social relationships of class society”.[i] Whilst there is obviously still some Marxism here (in that there is a materialist explanation present), such a view, Marxist or not, does nothing to advance our understanding of law as a specific social relationship.

The problem here is that defining law purely in terms of regulation or norm giving is foolish, since there are plenty of relationships in life that are normative, morality, religion, simple rules and furthermore, from a Marxian standpoint the whole of the “superstructure” serves to regulate and consolidate social relationships, Some people (e.g. John Austin) have attempted to solve this conundrum by adding in a sovereign figure, i.e. law is normative, but issued by someone with a monopoly on legitimate violence (or simply violence). But this itself is problematic if one wishes to identify the law as a specific social relation. Designating law as purely norms backed up by state violence means that one cannot distinguish between those acts of a state which are law, and those which are just violence. State violence is often normative but this does not mean it is all “law” or even that it is all “law making”. Even if one can see the historical origin of law is linked to the violence of a sovereign, such a conception does not allow us to distinguish between law and politics. Of course, some may argue that the two are one and the same (and I shall argue later that their conceptual distinctions really aren’t so big), but this would seem to fly in the face of material reality, where there is at least some semblance of a distinction.

Another approach (that taken by Alan Hunt) is to observe the “social practices” of a given historical period. From this we can gauge which of these practices is “law”, this could be for example be done by looking at those regulations which were enforced in a court. To an extent this approach is of course correct, in that we cannot “construct” a definition of law, rather we must observe law in its historical movement, it is for this reason that Pashukanis assigns an importance to bourgeois jurisprudence. However, the problem with this approach is two-fold. Firstly, we cannot simply accept that what is called “law” is always law or that it contains the relations necessary to reveal its what makes it "law", we can hardly pierce the bourgeois ideological veil by simply accepting what we are told. Secondly, if one says that law is that which the courts enforce one is not that much closer to finding out what law “is”, and how it is constituted. For if we asked what the courts enforce, we would of course reply “the law”, leading to an obvious circularity. This is not to say that we should ignore the structure of the lawsuit, because it is in fact vitally important, provided it is framed in the correct way.

Pashukanis provides away out of this maze in his General Theory of Law and Marxism. The first step is to acknowledge that law is a form of social regulation. The next step is simply to note that “under certain conditions the regulation of social relationships assumes a legal character”.[ii] At first sight this may seem to be a bit of a meaningless utterance, and Pashukanis acknowledges as such. Defining law as social regulation with a legal character does appear to be tautological. However, Pashukanis’ formulation is, in fact, a perfect example of Marxist method. Rather than pose the question as one of “logic” or “the ideal” it is a historical and material one. In history, under certain conditions a specific form of regulation arises (one with a “legal character”) which we call “the law”. Such an approach allows us to identify law as a specific social relationship (“the law-ness of legal relationships”[iii] as China Miéville puts it) because under certain conditions regulation acquires a legal character. Thus what makes law conceptually and historically specific is not its content, and not that it regulates or assigns norms, but that it has a different form to other forms of regulation.

Several elements can now coalesce in this definition. Firstly, it is a historical and material question, since one must observe the historical and material circumstances that allow law to differentiate itself. Furthermore, by phrasing law’s specificity as its form it allows us to examine the material structure of the law, rather than ideal definitions. Secondly, this is where bourgeois jurisprudence and the method laid out in Marx’s Grundrisse come into play. Since legal concepts reflect an actually existing, material relationship, legal categories allow us to demarcate the conceptual province of law, and this will aid in finding the underlying material relations that generate them. This is of course reminiscent of Marx’s dialectics of the abstract and concrete, abstract categories are, through material analysis, able to dialectically develop, so that we can understand the past, present and future in its concrete multiplicity. Finally, and similarly, in examining social practices one see the structure of law in its concrete functionality. If we wish to examine the “legal character” of law it is necessary to examine the structure of the court and the lawsuit, as this actualises the way in which the legal form mediates differences between individuals.

To be continued tomorrow…

[i] E.B. Pashukanis, “General Theory of Law and Marxism” in Piers Beirne, Robert Sharlet (eds.) Pashukanis: Selected Works , p. 287

[ii] ibid p. 58.

[iii] C. Miéville, “The Commodity Form Theory of International Law”, (2004) 17 Leiden Journal of International Law 271, at p. 289.

No comments: