Some more thoughts on rights

“Real rules”, then, if I had my way with words would by legal scientists be called the practices of the courts, and not “rules” at all. And statements of “rights” would be statements of likelihood that in a given situation a certain type of court action loomed in the offing.
Karl Llewellyn 1930, ‘A Realistic Jurisprudence: The Next Step’, 30 Columbia Law Review 431, p. 448

Karl Llewellyn was one of the leading legal realists, a movement in which I have grown very interested. As I will later try to show one can make a close link between Marxist materialism and the legal realists, a project which I am currently attempting. Llewellyn’s statement here can be viewed as a continuation of my previous post on rights, and a springboard for further discussion.

The statement, , is a perfect expression of a materialist conception of the law, in two meaningful senses. Firstly, Llewellyn seems to be expressing the same notion as Pashukanis, that a right, materially speaking, is only a right insofar as it is embodied in actual social practice, i.e. if it actually ‘regulates’ conduct. Thus, for Llewellyn a right is in fact a ‘description’ of the likelihood of a certain type of social practice prevailing over the other.

Secondly, and with a bit more extrapolation, Llewellyn is further saying that a right must be judged by its material effects. Of course, such a point is similar to the above, but different enough to be considered in its own right. I think the point here is that with the focus on ‘a certain type of court action’ we move into the terrain of interpretation. Let me explain, the ‘right’ to freedom of speech is prima facie seen as allowing people to express their opinions, yet in the US, if one examines the ‘court actions’ that take place under its auspices, a different story emerges.

Now, I don’t profess to be an expert on US law (frankly, I don’t profess to be an expert on anything), however, I do know that the constitutional guarantee to free speech has been used to allow corporations to make unlimited donations to political parties, so as to guarantee their ‘free speech’. If one takes Llewellyn’s position an examines a right through its manifestation in the court, and so ultimately its manifestation in social practice, suddenly the ‘right’ to free speech becomes a mite more complex.

What this also brings into play is Lenin’s much maligned polemic on freedom, his opinion being:

“Freedom yes, but for whom? To do what?”

Lenin’s retort is a blunt expression of a materialist conception of ‘freedom’, as embodied in ‘rights’. Every right, is a right insofar as it is actualised, but merely noting that it is enforced is not enough, one must note the situations in which it is enforced, what is the right really a right to do? This is the problem with ‘rights consciousness’, and any adoption of it.

Therefore, when we examine a right from a materialist perspective we included within it are all of the ways in which it manifests itself socially. This is because the right has to be seen as a social relation, not a thing-in-itself, but a form of social regulation as embodied in the interaction between legal subjects. This of course leads to the conclusion that the process of interpretation, the way that a particular ‘law’ is interpreted and enforced, in a dispute is hugely important, much more important that what a particular ‘law’ or ‘right’ says ‘on paper’.

By taking the term ‘rights’ at face value we will almost always divert our attention away from a materialist analysis. When we begin to see rights as abstract entities, good in and of themselves, we forget that a right is merely ‘a state[ment] of likelihood that in a given situation a certain type of court action loom[s]’. If one forget this fact there is a tendency to dissociate rights from their material manifestations, their consequences. Such a tendency can only be detrimental, as one need only observe the numerous ways in which seemingly ‘progressive’ rights are put towards reactionary uses. Witness the BNP framing their resistance in terms of ‘freedom of speech’, witness the invasion of Yugoslavia on the basis of ‘human rights’, when one stops analysing rights in a materialist fashion, stops looking at their material actualisation, and simply promotes rights, one may well end up legitimising domination.

And one cannot simply say that these reactionary uses of rights are some kind of ‘perversion’. Certainly these actions are potentialities contained within these general rights, and the very fact that they are manifested materially proves that they are not a perversion. They might well be contingent, in that their actualisation is not guaranteed, but they are certainly internal to the right, and probably internal to the very notion of rights.

Some more aimless ramblings on the 'glorification of terror'

A lot of people have pointed out that the definition of 'terrorism' in the Terrorism Act is so broad that it encompasses way too much. In particular the definition could easily be applied to the global 'good guys' and their actions in the war against terror. In fact, the term 'war against terror' is probably the perfect example of what 'terrorism' means in the Act, as it is clearly advocating political violence.

However, all prosecutions made under Charles Clarke's bill will be at the discretion of the Director of Public Prosecutions, part of the CPS, which is the governmental judicial arm. Chris Lightfoot impeccably shows the logic of the bill:

So that's alright then: make everything illegal, and only prosecute the people you don't like. Top work.

(My one problem with this statement is the notion that 'everything is illegal'. Whilst I agree everything is potentially illegal, unless a norm is enforced we can hardly call that which it 'condemns' illegal, a law is only a law insofar as it is actualised in particular material situations).

This is then fogged up by the government claiming, very sensibly that people already know what terrorism means. But this is simply untrue. What is actually being created is a system whereby the state can pick and choose its enemies, before throwing them in the slammer. The brilliance of the scheme lies in its simulataneously broad and particular nature. Due to the language of the staute most people who take an interest in politics, and particularly international politics could be criminalised (inasmuch as politics is always potentially 'violent') but discretion is vested in the state, hence each prosecution will be even more particular than normal.

This means that the law resembles a series of discrete decrees rather than a law with particular enemies of the state being carted off as and when necessary. This is the sort of law that is completely opposed to bourgeois notions of the 'rule of law', since it is so wide it is virtually impossible to 'plan your life' by it.

In fact I'd say this is the sort of law that show late capitalism begins to erode the legal form, in that it is very diffucult to see how this is a 'general law' binding on legal, formally equal subjects and not a discretionary piece of 'adminstration' or the pure particularistic command on the part of the 'sovereign'.

Rights?

Finally I should note a troublesome consequence of the reification of rights. Once my experience in marching to oppose U.S. intervention in Central America is transformed into an example of exercising a right, I may find myself pulled in direction that I would resist were I to confront the issues directly. Having thought of myself as exercising a right to free speech, I will find myself asking whether the Nazis in Skokie or pornographers also have rights to free speech of course one can resist this pressure by defining the right to free in one way rather than another. Or one can concede the need to protect the “rights” of Nazis and pornographers as a prophylatctic in a society in general devoted to advancing the cause of the party of humanity. But the problem arises because of the reification of right in the first instance. If we treated our experiences of solidarity and individuality as directly relevant to our political discussions, instead of passing them through the filter of the language of rights, we would be in a better position to address the political issues on the appropriate level.
Mark Tushnet, 1984 “An Essay on Rights.” 62 Texas Law Review 1363.

I find this critique of rights talk to be fascinating, and the logic here is one of the reasons why I am trying to move away from phrasing things in terms of 'rights'. I think Tushnet raises a good point here, and one that is clearly related to Marcuse's repressive tolerance. I personally am not a liberal, and am certainly not Voltaire, there is no way in hell I would 'die' for the Nazi's right to hurl rascist insults. I think this notion is something the left does need to think about, especially now.

In times of weakness it does seem that the left falls back on the notion of 'rights', to put forward its demands and to protect itself. But the question remains should the left be committed to a 'right' of free speech, or should it adopt the Marcusian solution. Of course, Marcuse's ideas attract a lot of criticism, and they are pointed towards as an example of left totalitarianism etc., though as Marcuse says :

I hope that nothing in my essay on tolerance suggests that I repudiate every sort of tolerance. That seems to me such idiocy, that I cannot understand how such an interpretation [99] has come into being. What I meant and said was that there are movements, which manifest themselves in propaganda as well as action, of which it can be predicted with the greatest certainty that they will lead to an increase of repression and destruction. These movements should not be tolerated within the framework of democracy. Here is a classic example: I believe that if, in the Weimar Republic, the Nazi movement had not been tolerated once it had revealed its character, which was quite early, if it had not enjoyed the blessings of that democracy, then we probably would not have experienced the horrors of the Second World War and some other horrors as well. There is an unequivocal criterion according to which we can say: here are movements that should not be tolerated if an improvement and pacification of human life is to be attained.

I think these notions call for a rethinking of 'rights talk' in the broader British left. Now of course critiquing this is not a new thing, as is evidenced by the dates of these works, however, the British left has never really thought through such criticisms. This is especially important when we look at the ever more repressive laws coming out of Parliament, we need to question we oppose them. Because remember even the BNP disputes its 'persecution' on the basis of 'freedom of speech', I'm not saying we should give up on 'rights' (though I probably think we should), merely that we at least give the concept a bit of thought.

Lib Dems being nice and sensible

The Guardian reports

Turning in his speech to proposed new offence of glorifying terrorism - in addition to announced measures on indirect incitement to terrorism and acts preparatory to terrorism - Mr Oaten declared his absolute opposition.

Pacing the stage in the Empress Ballroom as he delivered the speech, he said: "We can't support a wide and vague offence that allows glorification of terror to become a crime.

"What on earth does that mean? One person's terrorist is another's freedom fighter.

Precisely, especially given the unnecessarily broad definition of 'terrorism', and in fact 'glorify'. One also wonders if the phrase 'one man's terrorist is another man's freedom fighter', might itself be crminalised, after all calling someone a 'freedom fighter' sure sounds like 'glorification' to me.

"This is a dangerous proposal hard to define in theory, unworkable in practice and putting freedom of speech at risk."

I agree that it is dangerous, and hard to define. But somehow I doubt it's unworkable. In fact I'd say such a statute, being so indeterminate, could be beautifully workable, inasmuch as it can snare anyone the government wants, provided the judges don't play up.

And, freedom of speech? Hmmm, I oppose 'rights-talk' so...

His speech was repeatedly interrupted by applause from the grass roots, not least when he declared he was "proud to be a liberal in these difficult times because I know our values are the values that can defeat terrorists."

Nicely indicative that it might be possible to get some kind of mass opposition to this rubbish. Though again, the liberal talk is somewhat sickening.

Hopefully, this will be indicative of a trend, The left really doesn't need this bill to be passed, and the stirring amongst the Lib Dems show at least the germs of some kind of counter to this movement. My main worry is that these civil libertarians are going to be horribly compromised by any smears they receive, because we all know accusations will fly about being 'soft on terrorism'.

I mean look at Liberty's constant hedging after the '7/7' (godawful term). They don't want to go too far, lest they offend people, this is the same rationale behind Howard's warning to the judges, once a tragedy happens, criticism is stifled in more ways than one.

Terrorism Bill

Right, so the Guardian has a draft of the Bill up, I will briefly peruse through some of its aspects, and consider the implications:

Encouragement of terrorism
(1) A person commits an offence if he—
(a) publishes a statement or causes another to publish a statement on his
behalf; and
(b) at the time he does so, knows or believes, or has reasonable grounds for believing, that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.

Furthermore:

(3) It is irrelevant for the purposes of subsection (1)—
(a) whether the statement is likely to be understood as an encouragement or other inducement to the commission, preparation or instigation of one or more particular acts of terrorism or Convention offences, of acts of terrorism or Convention offences of a particular description or of acts of terrorism or Convention offences generally; and
(b) whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such act or offence.

Note however:

(4) In proceedings against a person for an offence under this section it is a defence
for him to show—
(a) that he published the statement in respect of which he is charged, or caused it to be published, in the course of providing a service electronically;
(b) that, in publishing it or causing it to be published, he acted on behalf of another, or did no more than make available a facility giving access to the statement;
(c) that the statement neither expressed his views nor had his endorsement; and
(d) that it was clear, in all the circumstances, that it did not.

So, if you are providing a 'service' electronically, or don't really think it, it's not an offence.

Onto the next salient offence:

(1) A person commits an offence if—
(a) he publishes a statement or causes another to publish a statement on his
behalf;
(b) the statement glorifies, exalts or celebrates the commission, preparation or instigation (whether in the past, in the future or generally) of acts of terrorism; and
(c) the circumstances and manner of the statement’s publication (taken together with its contents) are such that it would be reasonable for members of the public to whom it is published to assume that the statement expresses the views of that person or has his endorsement.
(2) It is irrelevant for the purposes of subsection (1) whether what is glorified, exalted or celebrated is the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally.
(3) A person is guilty of an offence under this section in respect of a statement glorifying, exalting or celebrating anything occurring more than 20 years before the publication of the statement only if the statement relates, whether directly or indirectly, to conduct or events specified for the purposes of this section by order made by the Secretary of State.

It seems to me that the latter is the more worrying of the offences, but I'll deal with the former first.

Right, to begin with this offence is very very vague, which could actually be a good thing. The first point to make is that it's quite disturbing that you need only 'reasonable ground to believe' that what you publish will directly or indirectly encourage terrorism. This means that you might not intend for what you are publishing to encourage terrorism, but you might realise it could. And if you realise it could, you're in trouble.

The next worriying part is this 'directly' or 'indirectly' business, this, combined with the above, seems to potentially criminalise a hell of a lot. Bearing in mind that the definition of terrorism what I posted previously the Iraqi resistance is a terrorist organisation. If the SWP in its Socialist Worker were to pubish an article saying 'the war is illegal' and therefore 'resistance is legitimate' surely this is an 'indirect' encourage, hell, simply saying the war is illegal or immoral seems to open us up to 'indirectly' encouraging 'terrorism'. Also the fact that no one need actually be incited is a worrying proposition as, in essence, it is not action that is being criminalised but mere publication.

The defences seem a little woolly, frankly I have no idea what 'in the course of providing a service electronically' means, what is a 'service'? Presumably this is there to cover news on the TV and internet etc. where publishing news about coalition abuses in Iraq might be seen as 'indirect' encouragement. But this surely wouldn't protect newspapers (though they might have the defence of not endorsing such views). And none of this protects the anti-war movement.

The glorification of terrorism offence is even more worrying. What especially concerns me here is that any support fo violent resistance now seems dead in the water. So for instance (not effected I know but still relevant) Monthly Review has an article about the Nepalese Maoists, stating:

The revolutionary forces in Nepal led by the Communist Party of Nepal (Maoist) have been engaged in a country-wide people’s war (“jana youdha”) against the royal government. Much of the country has been liberated.

Well, the Maoists certainly fit the bill as far as defintions of terrorism go in the Act. And liberated! LIBERATED!? Surely that is glorification or celebration not to mention the fact that the article is all about a successful attack on a government target. This sort of publication would therefore be criminalised under the Bill and there is no defence to this.

I don't want to phrase this in terms of abstract 'rights' discourse, but rather by its concrete effects today. Such a law can only serve to criminalise and delegitimise anyone who supports any kind of violent resistance. Obviously this is goin to hit Muslims hard, but it also has the possibility of hitting the anti-war movement, and the broader left as a whole.

Therefore this law needs to be combatted. Now I'm not some kind of organsational genius butI do have some suggestions:

1) There need to be a poltical mobilisation right now lobbying MPs, protesting etc. Such a movement can be based up a broad coalition, and we should ally with virtually everyone. Particularly the civil libertarian organistions that exist (Liberty, etc,) and any libertarian parliamentarians, this unity is only on the basis of a single issue, much like the No2ID campaign.

2) Should a law be passed then it needs to be opposed in court. Because the wording is loose there is a possibilty that the judges will interpret it narrowly, so as to protect 'free speech'. In order to make sure this happends we need to keep up the pressure, and left leaning lawyers (there are a few)/libertarian lawyers will be needed.

3) There is also the possibility (slim perhaps) that such a law can be challenged under the Human Rights Act. On the basis of A v. Secretary of State for the Home Department any derogation from the ECHR must be proportionate, this means:

a) there must a threat to the life of the nation
b) there must a legitimate aim to the interference with the 'right'
c) the means must be rationally related to the end
d) there must not be an excessive or arbitrary imapct

Following the London Bombings A and B would certainly be fufilled. I'd also imagine that the London bombings mean the judges will be very careful not to interfere with 'terrorism prevention' (see e.g. Michael Howard's 'warning').

This is all very disturbing.

Defining Terrorism

Terrorism Act 2000:

1. - (1) In this Act "terrorism" means the use or threat of action where-
	(a) the action falls within subsection (2),
	(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
	(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
	(2) Action falls within this subsection if it-
	(a) involves serious violence against a person,
	(b) involves serious damage to property,
	(c) endangers a person's life, other than that of the person committing the action,
	(d) creates a serious risk to the health or safety of the public or a section of the public, or
	(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
	(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
	(4) In this section-
	(a) "action" includes action outside the United Kingdom,
	(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
	(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
	(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
	(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

So, if we keep this as our provisional definition or terrorism, and combine it with the statements made by Clarke, everyone should be opposing this law. Now, obviously this definition could be applied to pretty much any military action taken by a government, but since this is at the DPP's dicretion, this is not likely to happen.

But, assuming this definition holds, think of what it will be illegal to do. Clearly all the resistance movements in the world today fall under this definition of terrorism, so proclaiming their 'right' to resist might well become illegal. Now, of course it will be said that this is only temporary, and will only be used against Muslim extremists. DON'T BUY IT. The apparently temporary public order act, prohibiting the use of political uniforms, so as to combat the fascists was used against the IRA god knows how many years later. Right, more on this later, but work awaits.

Base, Superstructure and the Property Problem

One common criticism that Marxism has constantly faced is its notion of the base-superstructure model and the relation of ‘material’ (base) and ‘legal’ (superstructure) relationships. This is well emphasised by a quote Acton, one with which GA Cohen attempted to tangle:

[T]he “material or economic basis of society” is not ... something that can be clearly conceived, still less observed, apart from the legal, moral and political relationships of men.
HB Acton, The Illusion of the Epoch

In accordance with the general thrust of this blog (notwithstanding a few aberrations) I am not going to focus on ‘morality’ and its relation to the ‘economic structure’ of society. Instead my primary focus will be on the response of Marxian legal theory to such a criticism, and I will then propose my own interpretation of the problem. It is possible to find several categories of people who attempt to refute this thesis, in essence we have two ‘camps’; the ‘separationists’ and the ‘imbricationists’.

Separationists

The ‘separationists’ are a fairly broad camp, and contain several theoretical currents. The main theoretical accounts are by the analytical Marxists and the French Maoists (who were decidedly influenced by Althusser). I have to admit that at one point I was essentially aligned with the French Maoists, in fact I wrote a very sympathetic account of their conception of ‘possession’ and I intend to keep several elements of their analyses.

What is common of both ‘camps’ of the separationists is their notion that legal ownership and effective ownership are conceptually separable. GA Cohen develops the notion of ‘powers over’ rather than legal rights, whereby one can ‘effectively own’ property, without having a legal protection of it. Legal ownership therefore grows from effective ownership, and recognises that which materially exists. The Maoists followed a similar line, positing that the legal superstructure of capitalist society was clearly conceptually separable from the economic base.

However, this approach was open to some very materialist criticism, in that their account served merely as a way to ‘[t]o vindicat[e] a wholly abstract commitment to ‘materialist’ world view’, as Karl Klare put it:

There is simply no “prelegal” realm of social life to which legal outcomes can be referred, at least not in this modern age. A particularly embarrassing case of circularity is the ease with which we are told that legal outcomes and processes derive from the underlying relations of production or property ownership, as though production relations or property could meaningfully be defined without reference to legal rules.
Karl Klare, Critical Theory and Labor Relations Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 61 (David Kairys ed., 1990), p. 67.

Even if it is entirely possible separate legal and economic relations, such an approach seems to have little or no ‘reflection’ in real life, where social relations are expressed in legal terms. This criticism, is not fatal to the idea of a separateness of legal and economic relations, provided one abandons the precise insights of the ‘separationists’.

Imbricationists

In many ways these people can be seen as a direct reaction to what they saw as the vulgar, abstract theorising of the separationists. Perhaps the most famous of these is EP Thompson, with his wonderful tirade against Althusser vis-à-vis the law:

[L]aw did not keep politely to a ‘level’ but was at every bloody level; it was imbricated within the mode of production and productive relations themselves (as property-rights, definitions of agrarian practice).
Thompson, Edward 1995 [1978], The Poverty of Theory, London: Merlin Press, p. 130

I don’t think I can add much more to what Thompson said, but I would also point out the sophisticated account of Derek Sayer in his The Violence of Abstraction:

In the real world, then, ‘power’ over objects turns out to be neither the abstraction, nor the simple relationship, of Cohen’s impeccably rechtsfret’ definition. It exists only in a multiplicity of often rechtsvoll empirical forms, to whose analysis, if Thompson is correct, a categorical framework built on prior and exclusive definitions of supposed social ‘levels’ is remarkably ill-suited. In certain cases, like England in the eighteenth century, law will emerge as inextricably ‘imbricated within’ — indeed constitutive of — any property relations we might want to consider relations of production, ‘part of the same nexus of relationship’. So too might other supposedly superstructural ‘instances’, like moral codes, political institutions, or ‘forms of social consciousness’ (all of which are fairly evidently entailed in Smith’s ‘orderly oppression’). In which case, to seek to expunge these from the concept of property or production relations a priori, for the sake of theoretical coherence or elegance, would seem to be a gross artificiality which does considerable violence to the very facts Marx’s concepts are meant to help us understand: a species of what he himself castigated as ‘violent abstraction’.
Derek Sayer, The Violence of Abstraction

Although this is a long quote I think it shows very well the approach that the imbricationists take, and the fact that their conception of social life is grounded in material right. Of course the problem here is that there is a danger of throwing the baby out with the bathwater, as such an approach can end up essentially abandoning Marxism’s distinctive approach, and surrendering to an idealist ‘Marxism’.

Defence of the separationists

As I said before the proposition that there is a conceptual separability between effective ownership and legal ownership is not as indefensible as it might at first seem. Rather than an abstract vindication of a materialist world-view I would argue that the notion of ‘effective ownership’ is the theoretical manifestation of a particular historical conjuncture. I am talking here of the USSR, and its degeneration.

The separationist account (from here the Bettleheim thesis) is a corollary to the experience of the dictatorship of the proletariat that every Marxist must arrive at, this is for two different reasons. Firstly, if one were to hold that the possession and ownership were not separable then one must conclude that the USSR was a socialist society (deformed or not), until some time around the Gorbachev years. Of course this is the position of orthodox Trotskyism, yet in terms of a coherent account it is impossible to maintain it. The central notion here is that of the bureaucracy in the Soviet Union. Marxists of many hues, Hoxhaites, Maoists, Trotskyists of the Cliffite variety and the council communist school have all held that the bureaucracy in the Soviet Union was, even before the rise of Gorbachev, able to constitute itself as a new bourgeoisie.

There was no obvious, official, legal relation between the new bourgeoisie and the means of production, nevertheless they were able to appropriate surplus value, and so there was clearly a capital-labour relation and therefore some kind of effective ‘ownership’.

The bureaucracy, by its social position, was able to appropriate the surplus value realised by the state enterprises, furthermore, labour essentially became a commodity and managers had effective ownership over the means of production. Some of these changes were of course enabled by small changes in the law, yet the fact remains that the bureaucracy’s social position was not legally sanctioned until the Gorbachev years. This inevitably leads to the conclusion that capitalist social relations can exist without capitalist legal relations. In fact they can exist within socialist legal relations.

If one holds to the contrary incoherent consequences result. Firstly, one can only explain the degeneration of the Soviet Union as a “big bang”, and one will not be able to make concrete references to the changes in “property forms” and social relations that occurred, since these cannot be explained by changes in the law. Secondly, and perhaps more importantly from the perspective of praxis, if one does not acknowledge that the bureaucracy can establish itself independently of the law, that legal relations do not always reflect property relationships, how can one struggle against capitalist restoration? In fact, how can one even know it is going on? A commitment to the separability of legal and material relations leads not to abstract theory but a guide to the concrete class struggle and an identification of what needs to be struggled against.

Secondly, the Bettleheim thesis allows Marxism to fulfil its role as a “guide to action” in another way. When the dictatorship of the proletariat is first established it has a certain series of tasks it must fulfil. Chief amongst these is the nationalisation of the means of production. Yet nationalisation is not socialism. Those who hold to the inseparability of material and legal relations tend to mechanically identify socialism with nationalisation, viz. they identify legal content with social content. However, in terms of Marxian socialism, this is simply not true; nationalisation is merely the first step on the road to socialism and eventually communism:

[Trotsky] defined the dictatorship of the proletariat by the state ownership of the means of production. In that case, the Asiatic mode of production of the ancient civilisations of Mesopotamia, Egypt, Greece and Peru etc., would have been socialist prototypes; modern Egypt would be a dictatorship of the proletariat
Kostas Mavrakis, On Trotskyism, p. 77

More than that, socialism must be defined as the transition to communism and the abolition of the exploitation of man by man. In this sense one cannot define socialism legally, as in nationalisation, but politically and economically, through the increasing socialisation and interdependence of the economy, the growth of the productive forces and the extension of power to the masses. Nationalisation is not socialisation, nationalisation as a legal form is perfectly compatible with capitalism, and has been in the past. Thus, again we see this is not an abstract theoretical conception, but in fact represents the concrete content of the dictatorship of the proletariat.

But surely what I have said goes too far in defending the separability thesis? Perhaps it does, especially as what we are describing in an exceptional situation. This is why I seek a transcendence of this ‘dichotomy’ through Pashukanis, Stone and Miéville.

Going beyond the divide

As I have previously state China Miéville, rather than taking either approach, insists that the law must be viewed as a broad social phenomenon. China puts forward the position that Pashukanis’ approach leads to law as being part of both the base and the superstructure:

It is thus misleading to claim that Pashukanis sees ‘law’ as part of the base, or part of the superstructure. ‘Law’ is a complex of social relations, norms, rules and formal proceeds which, under capitalism, straddles both levels of society.
C. Miéville, Between Equal Rights, p.96

Miéville holds therefore that the legal form, which is embedded in the very structure of the commodity, is part of the base. Alan Stone, in his wonderful article ‘The Place of Law in the Marxian Structure-Superstructure Archetype’, argues that Marx had a similar position on particular legal relations. Stone posits that some legal relations are the ‘essential legal relations’ that are the direct actualisation of material relations in the 'legal realm':

At a certain stage of development, the material productive forces of society come into conflict with the existing relations of production or — this merely expresses the same thing in legal terms — with the property relations within the framework of which they have operated hitherto.
Karl Marx, Critique of Political Economy

A sophisticated approach therefore sees that certain legal relations are organic to the commodity form, and are therefore immediately expressed in the legal form. For example punishment for theft, is part of the violence embedded in the commodity form, and is violence directly expressed in the legal form, without necessary mediation in the legal superstructure. The same is true of basic property relations and contract law, those forms of law that are mere ‘economic reflexes’.

Miéville shows that we need not have a state authority for there to be a law-ness to social relations, rather the law-ness is embodied in the legal form and the violence that constitutes this law-ness can come from either the state or the legal subject. Of course the law-creating character of the violence of the legal subject is only law in its primitive form, a law not yet illuminated by the legal superstructure.

What this approach tells us is that effective ownership is already a type of law-ness. Thus effective ownership, as part of the economic base of society, takes occupies the legal form in its most immediate actualisation, even though it is not yet present in the legal superstructure. This in turn solves shows the real interaction between form, content, base and superstructure. These contents are the contents which truly embody the legal form, and in fact serve as the first articulation of the legal form. Since there is such an unmediated identity between form and content here, these ‘contents’ serve as the base of capitalist society. As Stone notes these legal relations, have a series of superstructural relations that derive from their basis, these superstructural relations can be questioned and changed, but when the essential legal relations are widely challenged we know capitalist social relations are in trouble.

However, there is one problem that remains here. Since we have two levels of the law, i.e. the legal form and the legal superstructure, how is it some times the latter is in contradiction with the former? As with the example of the USSR, but more generally in the development of capitalism, why is it that the ‘legal base’ was not identical with the ‘legal superstructure’.

Firstly I think we need to note the Marxian conception of social development, whereby new social relations grow up within the old, the ‘old’ social system provides the material prerequisites for the development of the new, and the new is able to ‘mature’ within the new. This means that there will be periods in which new legal relations are developing, due to the proliferation of commodity production. Therefore, there will be a period where different legal contents exist within the legal form, as classes, and the productive relations they represent struggle amongst themselves.

This can lead to a situation where the ‘legal base’ of one type of social system has triumphed but it has not yet been recognised in the superstructure. Only when the legal superstructure recognises this, has the transition been truly completed:

[B]ourgeois capitalist property ceases to be a weak, unstable and purely factual possession, which at any moment may be disputed and must be defended vi et armis. It turns into an absolute, immovable right which follows the object everywhere that chance carried it and which from the time that bourgeois civilization affirmed its authority over the whole globe, is protected in its every corner by laws, police, courts.
E.B. Pashukanis, General Theory of Law and Marxism, p. 78

Thus we need to recognise that any notion of ‘effective ownership’ has to grapple with the fact that by far the best guarantee of effective ownership is the legal superstructure, and that even the basic notion of the individual securing his property is violence with a legal character.

What should also be noted is the materialist approach to norms holds that the norm is norm insofar as it effects, or reflects material relationships or trends:

A norm as such, i.e. in its logical content, either is directly derived from existing relationships already or, if it is published as statutory law, then it presents itself only as a symptom by which one may assess, with some degree of probability, the likely emergence of the corresponding relationships in the near future. It is not sufficient to know the normative content of law in order to confirm its objective existence. It is necessary to know if this normative content is realized in practice, that is in social relationships.
E.B. Pashukanis, General Theory of Law and Marxism, p. 63

This again shows us how to transcend the narrow boundaries of the two approaches outlined above. We can see that the apparent socialist norms of the USSR were not realised in practice, in actual fact they were in opposition to the concrete practice of the bureaucracy, whose appropriation of surplus value constituted the embryonic embodiment of the new legal superstructure, but had already been actualised through the legal form. This also provides an explanation for the growth of capitalism within other social formations.

Of course, there needs to be further explanation as to why the legal superstructure remained as it did for so long. There are two possibilities here. One is that of superstructural inertia, i.e. it takes time for the legal superstructure to develop norms that are already expressed at a more primitive level. Of course, since the USSR was always a transitional social formation, several of the essential legal relations of capitalism were already present, their role was simply expanded. One might also argue that law, as site and instrument of class struggle, was used here to mystify actually existing social relations, what better way to exploit the proletariat than under the veil of socialism?

I will also later make a post on whether socialist ‘property’ relations can be posited legally, as I think this is something that needs to be brought forward.

Oh dear...

The Guardian is reporting all about the new 'anti-terror' offensive here, quite apart from the obvious there are also some pretty damn worrying implications for everyone:

Encouraging and glorifying terrorism: Two offences, carrying a jail sentence of up to seven years. Covers published statements, including internet ones, which amount to the "direct or indirect encouragement" of terrorist acts or those which "glorify, exalt, or celebrate" such acts.

This very wide offence seems like it could be somewhat troublesome. Firstly, what constitutes terrorism here, consider the Iraqi resistance is often painted as a terrorist organisation what implications does this have for groups that support its 'right' to resist. Furthermore, encouraging terrorism, directly or indirectly, could be very easy, encouragement is an objective fact, although I suspect there will be a subjective test (either you intend that such statements encourage or you were aware they might). But what constitutes encouragement? Would calling the US imperialist count? If you say that the Iraq war was an illegitimate imperialist war and therefore should be resisted are you encouraging terrorism?

And I wonder what counts as 'exaltation' or glorification, such a point of course needs clarifying, but should it be read widely enough it might well punish those who say a particular act is legitimate. And this is just staying within the Muslim paradigm, but, correct me if I'm wrong, several leftist parties, e.g. the CPN(M) are classed as terrorists. Does this mean that glorification of their actions (whether it involves a battle with the military, taking over a town etc.) is tantamount to an offence? Worrying stuff.

What I'd like to see is the statute which is going to be produced, and a few cases to see how the judges read it. As I will eventually discuss interpretation is very important in the law and hopefully it be made so this is not read so widely as to criminalise anyone who supports resistance or liberations movements across the world.

I don't think we can find the solution to this in the law. Such laws have to be defeated by political mobilisation. Of course we can try to utilise the law for defensive purposes but as my passing comments have show, this sort of legislation can only be transcended by politics.

Islamofascism...Islamosmashism

The spurious concept of ‘Islamofascism’ is a weapon clumsily wielded by those on the pro-war ‘left’ as justification for their stance. I therefore feel I would like to subject the idea to at least a mild critique. I am sure such critiques have been articulated more ably than I could hope to do so, but then again, much of what I say and think is articulated more ably by a myriad of people, so I may as well spew this forth too.

I suppose the question arises as to what such a subject has to do with law and disorder. Well the answer is, at first sight, not that much. However, I personally am very interested in the application of Marxist legal theory towards fascism, hence this may well serve some use as preparing the groundwork for such an analysis.

There are two things that I do no purport to do here, firstly, I will not give a rigorous, in-depth discourse on fascism, as such an analysis is probably beyond me. Secondly, I will not subject the concept of Islamofascism to a comprehensive critique, I will merely point out its inherent incoherence. Now the question remains: ‘If you’re not going to do either of those things what are you going to do?’

Strangely enough I believe a simple ‘discourse on method’ and a cursory analysis of fascism is enough to dismiss the frankly scatterbrained notion of Islamofascism, and secondly I will briefly look at why the terms is so wrong and why the pro-war ‘left’ wishes to deploy such a term

The notion of Islamofascism can be quickly dismissed by methodological considerations. For the term to have any meaning at all it must be demonstrated that the states or movements to which this concept is applied are in some way ‘fascist’. Let’s take a look at a dictionary definition of fascism (and this will prove woefully inadequate) as our first step in this analysis a quick google search turns up several responses, we’ll take one (one I’m sure the pro war ‘left’ would love) and subject it to critique:

A system of government that promotes extreme nationalism, repression, anticommunism, and is ruled by a dictator.

From an analytical standpoint this definition is worse than useless. It does identify some features of fascist regimes to be sure, but it does not say what makes these regimes ‘fascist’. The ‘concept’ of fascism cannot be the above, as let’s face it, there have been plenty of governments like this prior to the existence of the term ‘fascism’ that were never labelled in such a way.

The problem is actually very similar to that of identifying the law. Here we have a concept ‘fascism’ which is clearly differentiated from any ordinary ‘authoritarian’ state. This means it must have a specific fascist character, that differentiates it from that which came before it. If we want to find this character google actually terms up a much better (although seemingly vacuous) definition of fascism:

a term used particularly to describe the nationalistic and totalitarian regimes of Benito Mussolini (Italy, 1922–45), Adolf Hitler (Germany, 1933–45) and Francisco Franco (Spain, 1939–75).

If we ignore for the moment that incoherent term ‘totalitarian’ we have the beginnings of a correct definition of fascism. If fascism is different from authoritarianism in some way (and it must be different since it has such a vituperative force behind it) we need to see how it acquires a differentia specifica from other forms of social organisation.

The only way to do this is to follow the method Pashukanis does in his General Theory, namely look at the history of fascism. Because we can only see what something is if we know its history, only it history does social organisation acquire a fascist character. Thus, in order to give any meaning to the term fascism we have to look at that which is particular to Nazi Germany, Fascist Italy etc., that which differentiates fascism as a politico-economic moment is the organisation of the capitalist state, on this basis we can extend such a ‘definition’ to other states, and see if they ‘live up’ to our ‘yardstick’.

Now, I really don’t want to go deep into the conception of fascism, because I don’t currently have the inclination. But we know that fascist regimes occurred at a particular juncture in history, with specific material conditions. They then evolved into a particular form of organisation with a particular balance of class forces. Put perhaps too briefly fascism emerges from the crisis of capitalism, namely the 1930s. The fascist movement was, at first, composed primarily of petit bourgeois and déclassé elements. These were the people (aside from the working class) who suffered most in the crisis of capitalism, but who would suffer under the normal operation of capitalism too.

At the same time as this we see the growth of workers movements, particularly here in Italy and Germany. Socialist or Communist parties are militant, as are trade unions and other working class organisations. At this point capitalism does seem threatened. It is here that the monopoly bourgeoisie and finance capital step in to support the fascist movement openly. The fascists are used as the shock troops of this class, and on their assumption of power there is a fusion of the state with monopoly capital. Dimitrov (and I hate the MIA for putting him in a Reference Archive), who no doubt is despised by readers of this blog, defined fascism as:

‘The open terrorist dictatorship of the most reactionary, most chauvinist and most imperialist elements of finance capital’

It should be added that there is also a co-option of labour in favour of capitalism, and state ‘supervision’ of the various monopoly capitalists. These are the defining features of fascism. What this definition does a good job of showing is that fascism is a phenomenon which only occurs in countries with a monopoly bourgeoisie, i.e. ‘imperialists’. This is where the term ‘Islamofascism’ runs into problems. Even according to the pro war ‘left’ the Islamofascists are only ‘fascists’ on the basis of their anti-semitism, chauvinism, and reactionaryness (which I am aware is not a word). But the problem is that historically there have been plenty of people like that, none of whom were called fascists.

Fascism is not an emotive term, it is not a description one’s views on groups of people. rather it designates a particular form of social organisation, that was itself the product of a particular conjunctural moment in the history of capitalism.

Some will argue such a definition is ridiculous, and that I am reifying the concept of fascism. And perhaps I am. But, as I noted in my post about reification and the law it is necessary to mark out certain social constellations with terms if these terms are to have any meaning. If fascism, as a term, is associated with racists, dictators etc. it loses any claim of historical specificity and becomes merely a buzz-word, an insult. This is the great problem of the actual left, in labelling opponents as fascists, we change the term from a description of a particular set of social relations into an insult, denoting someone’s apparent mindset. Yet this denudes the claim of any meaning, if all authoritarians are fascist then fascist simply means authoritarian, in which case stop using the word fascist, because it has a particular historical resonance (both emotive and material) one which is clearly aimed at being exploited.

Now onto why the word is used. Well, as I’ve said, fascism, quite literally, has a history. And for the left such a history is important. At no other time was the left as unified as when it was fighting fascism, everyone from left-social democrats, to hardcore CP members joined in the fight, as is evidence by the Spanish Civil War. But here’s the kicker, fascism is the only state that the left has consistently supported wars against (let’s discount the Molotov-Ribbentrop pact for now, I’m getting to the point), it is the one cause that, if actualised, the left will support military action against.

The fact of the matter is I’m sure its tiring sitting at the right hand side of capital, probably lonely too. The cries of ‘fascism’ are clearly a clawing attempt to maintain ‘left’ status no matter the pseudo-glory of ‘fighting against the grain’. Because the pro war ‘left’ finds itself in an odd crowd, a crowd it really wouldn’t usually be in, and it doesn’t feel comfortable. So of course it throws out the most emotional buzzword it can ‘but our opponents are fascists, can’t you see that, well, I guess we’re the real left, you’re all just objectively pro-fascist…’

For more indepth, reading on the subject I present you with a series of links, none of which is by Trotsky (though I think he was ok on fascism as it goes, and I did enjoy Callinicos' essay on Marxism and the Holocaust)

The Nazis and Monopoly Capital: now I'm sure y'all wouldn't like Revolutionary Democracy, should you read it (as I doubt there are any Hoxha-ites out there) but I did find this very interesting

A Question of Politics, Economics of Both - who doesn't love the Frankfurt School? But this is a nice overview, I'd also suggest you check out some stuff by Neumann and Kirchheimer, who are really good on this.

And of course, Blackshirts and Reds

September 11th

Just thought I'd get in a post to commerate the tragedy of September the 11th...

...1973, the day that Pinochet, with the blessing (and support?) of the US, overthrew Salvadore Allende.

"Allende, Allende el pueblo ti defiende"

Please remember those who died.

For those who haven't please read Killing Hope.

"I don't see why we need to stand by and watch a country go communist due to the irresponsibility of its own people. The issues are much too important for the Chilean voters to be left to decide for themselves."
Henry Kissenger

Totality

This blog is not simply a way of going step-by-step through the legal process. Every particular post is a product of my own mental development, and so at different times I’m obviously going to have thought of different things. For this reason I am not going to write about the role of legal indeterminacy or the court situation, because this is something that requires serious thought and reading. Therefore, today I want to examine the interaction between particular legal effects and the totality of social relations.

Firstly, although I have held that the legal form can never directly alter the fundamental social relations that give birth to a particular problem. However, there are some caveats to this. Firstly, class struggle can lead to the formation of a law that can regulate a particular problem, and thus at least curb a particular social relation. Secondly, a legal dispute can have direct consequences upon consciousness, i.e. the evidence revealed or the example of the struggle can have tangible effects on the political situation.

The traditional example invoked by Marxists here is the regulation of the working day. This legal victory showed that the working class could turn the public sphere into an arena for forcing through progressive change. That such a change can occur is linked with the fact that with the growth of liberal democracy we witness the legalisation of politics, this is manifested in both political theory and in political practice, as Otto Kirchheimer put it:

Political theory does not acknowledge the right to resistance anymore, even though it had dominated the structure of oppositional political discourse under absolutism. Along with the constitutional practice, the absorptive power of democratic ideology contributed to the elimination the right to resistance; it was the product of a social order that had not yet been fully rationalised. Indeed, one can go as far as to identify the distinguishing mark of the modern state with its degradation of the right to resistance to a catalogue of constitutional rights. The rationalised concept of law stepped into the place of an indeterminate right to resistance, whose strength lay exclusively in being anchored in popular consciousness - that is to say, in its substantially unlimited character.
Otto Kirchheimer 1996 “Legality and Legitimacy” in W. Scheuerman (ed.) The Rule of Law Under Seige, California University Press, p. 45

This seems to be entirely correct. There is only legitimacy in political struggle inasmuch as it conforms to the law or has changing the law as its end. Therefore, it seems prudent to examine how legal changes effect and are affected by the social totality within which they operate.

Let us return therefore to Marx’s observations about the working day. This will give us a concrete model about how changes relating to the fundamental relations of production are actualised. Such an examination will allow us to illustrate, and generalise this. Marx argues that the struggle for the regulation of the working day was ‘the product of a protracted civil war…between the capitalist class and the working class’, and that ultimately it succeeded. This is often pointed out by reformists as evidence of the efficacy of law as a weapon in the class struggle, yet what seems to be ignored is that follows.

Immediately following and interlinked with Marx’s consideration of the regulation of the working day is his description of relative surplus value. Before the working could organise itself so as to legally struggle capital was able to produce surplus value by the continual extension of the working day, i.e. the production of absolute surplus value. But the struggle for the working day ultimately limits this; capital can no longer produce an increase in absolute surplus value. Did this cause the capitalist system to collapse? Did this abolish the realisation of surplus value? No. It necessitated the shift to the realisation of relative surplus value. In fact therefore it allowed capitalism to shift to a more efficient mode of exploitation and forced the development of more productive relations (as the working day must get more intense to realise more surplus value). Furthermore, it fulfilled the demands of the working class, ultimately serving to dampen their consciousness and materially absorb these demands.

This is the great paradox of the Factory Acts, a legal victory of the working class merely served to strengthen capitalist social relations and secure the existence of capitalism. Therefore we need to see how we can generalise this experience on the level of capitalist social relations. But why does this happen? To understand this we need to grasp a central concept of Marxism, one which accurately describes the mechanics of social systems.

The legal effect of the Factory Acts took place within a particular context of social relations, a capitalist totality. ‘Integration in the totality… does not merely affect our judgement of individual phenomena…[b]ut also, as a result, the objective structure, the actual content of the individual phenomena - as individual phenomenon - is changed fundamentally’.[i] When a particular material ‘fact’ is brought into being one simply cannot ignore the fact that it operates within a complex of material relations.

These material relations are over-bearing and all pervasive, and will determine any other relations or ‘things’ that exist within it. Particular social relations exert an influence on all over phenomena; Marx brilliantly demonstrates this in relation to machinery:

The contradictions and antagonisms inseparable from the capitalist employment of machinery, do not exist, they say, since they do not arise out of machinery, as such, but out of its capitalist employment! Since therefore machinery, considered alone shortens the hours of labour, but, when in the service of capital, lengthens them; since in itself it lightens labour, but when employed by capital, heightens the intensity of labour; since in itself it is a victory of man over the forces of Nature, but in the hands of capital, makes man the slave of those forces; since in itself it increases the wealth of the producers, but in the hands of capital, makes them paupers - for all these reasons and others besides, says the bourgeois economist without more ado, it is clear as noonday that all these contradictions are a mere semblance of the reality, and that, as a matter of fact, they have neither an actual nor a theoretical existence.
Karl Marx, Capital: Volume 1

A particular material fact can never be considered in isolation, machinery, that which should improve the life of the working class, ultimately serves to undermine it when existing in capitalism.

Every social system has a knack of assimilating foreign content and rendering it as part of its objective processes. Unless the capitalist system is completely abolished any individual forms are necessarily filled with capitalistic content, thus in the integrated world-system of capitalism, for example feudal and semi-feudal states still exist as part of the global capitalist system. This is how Marx is able to show that the existence of slavery, capital etc. is the function of a set of social relations.

This is how it works with particular legal effects, and reforms. Any particular legal relation cannot transcend capitalism; since this happens the relation is instead integrated into capitalism becomes part of its objective processes. Therefore it serves to strengthen capitalism in several senses:

1) It serves as a form of ideological legitimation. The liberal democratic capitalist system is seen as able to respond to the demands of the working class. Therefore it appears democratic, it seems like we can change it, this serves to diffuse resistance, and also channel other forms of resistance into the law. All of this occurs without overcoming capitalism. This is very similar to the process outlined by Herbert Marcuse in the stunning Repressive Tolerance.

2) In a very real sense legal forms integrate the demands of the working class into the social structure, without fundamentally altering it. But these demands are co-opted into the capitalist social system without properly changing its fundamental social relations, this is what the Situationists (who I love by the way) meant by recuperation.

These two facts also explain why some Marxists (particularly of the Frankfurt variety) think the working class has been incorporated into capitalism, ideologically and materially their short term interests have been incorporated into capitalism. It is also worth remembering that since these changes are not permanent they can be rolled back by the capitalist class, so even minor legal regulation can’t last.

Of course, it can easily be argued that I am making a general polemic against reform, but I don’t think this is quite true. I believe that reform does have an important aspect in raising the consciousness of the working class. But the real problem here is that there is an increasing legalisation of politics, the opportunity cost of this is the denigration of other forms of resistance. The increasing legal action of the working class leads to the processes I outline above strengthening.

There is a possibility of action happening in the manner of the Transitional Programme laid out by Trotsky. I can imagine that demands, backed up by action might, in exceptional circumstances, be able to transcend the narrow bounds of capitalism. But this will only occur in trying to implement a law. If the law is successfully implemented the demands will be expressed through the legal form, with all the effects I have previously outlined.

We must therefore see that the law is a way of organically reorganising capitalism along more stable lines. Capitalism is one of the most protean social systems that have ever existed, and as resistance is channelled into the law capitalism is able to momentarily readjust itself. As politics becomes more and more about the law, as judges gain more import, the possibility of change becomes less and less. Law can never transcend commodity exchange, it almost never transcends the relations that give birth to it but it can let capitalism alter itself in a way that guarantees it own safety.

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[i] Georg Lukács, History and Class Consciousness

Between Equal Rights

Between Equal Rights: A Marxist Theory of International Law, Leiden: Brill (2005)

China Miéville, you may know him as the sexiest man in politics, or author of numerous sci-fi books, or perhaps you’ve seen him selling Socialist Workers on the street (does he do that). But I came to him primarily as an international law theorist and interpreter of Pashukanis. So anyway, I’ve just finished reading his book Between Equal Rights: A Marxist Theory of International Law and very good it was too.

Between Equal Rights has a few essential components, firstly it examines the claims of mainstream international legal scholarship and subjects to a critique (frankly this is not difficult to do), he then analyses critical approaches to law, within the CLS and Marxist traditions. In terms of the CLS and critical scholars Miéville examines Myles McDougal and Marti Koskeniemmi, these scholars militate against the conventional notion that international law is a totality of norms. Against this the critical accounts stress international law as a fluid process; the notion of law as a process also points towards the importance of interpretation in terms of the law. Furthermore this approach stresses that law is all about politics as against it being some specific sealed off realm.

This is where Marti Koskeniemmi becomes more important, Koskeniemmi shows how international law is fundamentally indeterminate. Every particular instance can be framed in different ways, as both an ascending argument, which is an appeal to particularistic notions of state sovereignty, and descending arguments, which is an appeal to the “common good”. The problem with these approaches is that they are framed in terms of idealism, and neither of them can answer the question “what is law”, this is where Pashukanis comes in.

Miéville argues that the approach of critical legal scholars needs to integrated into Pashukanis’ legal theory, where law is seen as the clash of two subjects within the legal form (as I have outlined). Therefore, it is necessary for Miéville to outline, defend and reformulate Pashukanis’ approach to the law. Miéville and I share very similar conceptualisations of Pashukanis’ legal theory, so I won’t go into precisely how he outlines Pashukanis. However, he also engages with some of the criticism of Pashukanis, and does so to great effect. I too have engaged in a similar defence, and in fact my position coincides very much with Miéville’s (when it is rejected I’ll place it here), essentially Pashukanis comes under two critiques; the first is that changes in contract law that recognise organisations as legal subjects (unions etc.) undermine his equation of law with the commodity owner, the second it that administration has undermined the legal form, because capitalism has ‘moved on’ since the days of simple commodity exchange. Broadly overlaying these criticisms is the notion that Pashukanis inflates the role of exchange in capitalism.

Miéville’s first thrust is to point out that exchange is vastly important in capitalism, and constitutes part of its economic base (I will return to this). In capitalism all production is for exchange and takes place on the basis of exchange, thus Pashukanis was not wrong to stress the importance of exchange. It is also fairly easy to address the charge that changes in contract law undermine Pashukanis. In fact the converse is true; the fact that social organisations are posited as legal subjects vindicates Pashukanis. Miéville also points out that within administration people are still treated as abstract legal subjects actively asserting rights. Again this is an elegant critique. However, I do not think it is entirely correct. It probably is true that to some extent (and greater than Miéville admits) the legal form is being undermined, but the fact is this can only be explained on the basis of Pashukanis anyway, in that commodity exchange is to some extent altered by monopoly capitalism and its bureaucratisation.

Miéville’s reformulation/clarification of Pashukanis is also fascinating, and it is one that has influenced me. Miéville, shows the legal form is an actualisation of the immanent violence of the commodity form, it is therefore organic to the commodity form. This of course puts a new spin on the “base-superstructure” metaphor, because if the legal form is violence, exercised as an organic part of exchange it is part of the base. Now this might well be a problem for some Marxists but Miéville eloquently formulates a response to this:

It is thus misleading to claim that Pashukanis sees ‘law’ as part of the base, or part of the superstructure. ‘Law’ is a complex of social relations, norms, rules and formal proceeds which, under capitalism, straddles both levels of society.[i]

This nuanced position expresses perfectly one I myself was groping towards. It is incidentally very similar to that of Alan Stone, a man whose insight could well be integrated into a ‘Pashukanian’ framework.[ii] Miéville therefore sees the legal form as subsuming the commodity form, and with it labour power (that which universalises the legal form in the first place).

Pashukanis’ theory of law does not require a state, in fact the early articulations of the legal form were not made by the state at all. Miéville chooses to address the problem of ‘state derivationism’, where the bourgeois state, as an abstract form, is derived from the legal form, Miéville shows the such a conclusion is not seen as necessary by Pashukanis. International law, as a legal without an overarching authority, is therefore seen as the perfect way to understand Pashukanis’ legal form, in its essence. Miéville notes that sovereign states are posited as legal subjects , but with no overarching authority, and interpretation being locked in a never ending series of arguments, how can law be decided. By the violence of imperialism. Miéville shows that far from being opposed to violence the only way international law can be settled in through the violence of an imperialist state. In this way Miéville is able to hold on to the ‘law-ness’ of legal relations, whilst showing such a law is merely the right of the strong.

Miéville then engages in a historical examination, showing how international law only matures with the growth of sovereignty and therefore bourgeois society. He also shows how international law only becomes so when colonies are subjected to the ownership of great powers, thus international law, violence and imperialism have ever been interconnected.

His final chapter is an argument against the global rule of law, since such a rule is invariably the right of the strong, and is inevitably bound up with imperialism it will always be determined by imperialism. Yet by engaging with international law, the left serves to legitimate it, and the relations that give birth to it. As the final (brilliant) sentence of the book puts it:

‘The chaotic and bloody world around us is the rule of law’[iii]

My objections to this book are few and far between. The main one is Miéville’s treatment of domestic law. I feel that he too often assumes the determinacy of the law, and the fact that the judiciary can fill the law with a particular content. Thus I think he ignores the insights he brings to international law. The legal realists and the CLS movement have shown us that the law really isn’t very determinate. I think that greater investigation needs to be done on linking legal realism and Marxism, and emphasis must be put on the role of violence in determining domestic interpretation. The violence is more mediated to be sure (and links will have to be made) but I feel that Miéville takes for granted the power of the judiciary and even the apparent determinacy of law’s content.

I also have several queries about the progressive role of law, whilst I agree that at the current conjuncture law can only serve imperialism I wonder if such a factor is intrinsic. I can think of several instances when force itself might be on the side of progress:

a) International trade unions/working class political organisations – though such a prospect seems weak now it is something to consider. Miéville shows how collective labour was constituted as a legal subject domestically, could the same thing happen globally? Walter Benjamin saw fit to categorise a strike as violence (and law making at that!), could such ‘violence’ force a progressive content into law? The same thing goes here for organisations like the Communist Internationals.

b) Progressive countries, countries that are not quite socialist but are nevertheless progressive could also do this. This point is addressed briefly in the book, but needs more work. I’m thinking for example of Venezuela, which certainly has force both military and economic, and is not internally vulnerable, could such a country force progressive interpretation into the law.

c) Socialist countries. Now I don’t know the IS line on this, but a socialist country might still be a legal subject. The state still exists under the dictatorship of the proletariat, and socialist countries may need to trade, hence they might still be interpellated as legal subjects.

d) Mediated influence. Could a national class struggle change a nation’s policy, or violent power, on a particular issue so that it is progressive? Such a situation does not seem impossible in certain circumstances, especially where Europe is concerned.

Miéville’s book is excellent, and I’d suggest you buy it once it’s available in paperback. The two chapters on Pashukanis would be worth the money, as finally we see an approach to him that is critical, but sees his worth (there have been a severe lack of them). The fact that we share opinions on Pashukanis could only raise the book in my estimations, and I wouldn’t be exaggerating to call this the most important book on Marxian legal theory in a long time.

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[i] p. 96
[ii] Alan Stone 1985, “The Place of Law in the Marxian Structure-Superstructure Archetype.” Law and SocietyReview 19:39-67.
[iii] p. 319

Hmmm

I will post again soon, just have a fair bit of reading I want to do first, tomorrow I probably put up a review of (what I have read of) China Miéville's Between Equal Rights: A Marxist Theory of International Law. But I really need to do some more reading on indeterminacy and legal realism before I write anything more indepth.

Form and Content

So far in this blog I have described both the legal form and legal content. Yet I have not really gone into how the two interact. The legal character of legal relationships is expressed in the legal form; therefore legal regulation’s content will always be linked to the legal form. One cannot ignore this interrelationship, lest one render the legal form a constant abstraction that has no real effect. In fact, since the legal form constitutes the differentia specifica of legal regulation, one can hardly distinguish law’s difference in effect from that of other social relations. However, it is necessary to observe this interaction correctly, so as to see the effect of the legal form, as China Miéville puts it:

“It would be excessively simplistic to consider Pashukanis’s…theory of law as an empty bottle into which any content can be poured. That would be to conceptualise content and form as separate isolated qualities.”
China Miéville 2005, Between Equal Rights: A Marxist Theory of International Law, Leiden: Brill p. 119

This is a vitally important point to understand. If the legal form is a specific social relation it must be understood that content does not fill the form, rather the content is expressed through it. Therefore, the content of any particular law is fundamentally shaped by the fact that it is a asserted in a social relation by one abstract individual against another, content therefore is quite literally shaped by the form.

This has implications far beyond the sphere of theory, and it has direct ramifications for praxis. It is necessary therefore to examine how the form shapes the content. The fundamental point to make here is the notion of the legal form as the assertion of one subject against another; it is useful here to simply think of the structure of a lawsuit, or a court room in general (where one party asserts his/her abstract right against another).

So every type of regulation that assumes the legal form is only actualised in such an assertion of one subject against another. The dispute is then mediated with violence, or the threat of violence, and resolved between the two individuals. What this means is that the particular dispute is ultimately resolved through the application of force and punishment, of some kind, is dispensed to the loser (be it monetary or penal). Such an outcome is the only logical one that can follow on from the legal form, which after all only comes into play as a regulator against the individuals in particular circumstances.

Such a result is problematic to say the least. Due to the structure of the law it is only ever capable of resolving an individual violation of the norm, yet it is incapable of finding the source of such violations. Let me explain this further, as Marxists (or indeed generally as rationally people) we believe that people’s actions, their violations of norms, are in some way affected, if not determined, by the circumstances that surround them, we certainly do not believe in an absolute ‘free will’. Therefore, when there is a particular violation of the law, and this continues, we see it as a manifestation of some other ‘background factor’. People’s actions are shaped by particular material conditions, and until such conditions are eliminated these actions will continue. And here is the fundamental problem of legal regulation, the transformation of content as expressed through the legal form. The legal form can never deal with the general, material circumstances that give rise to an action. Since the legal form deals with two legal subjects, it is forced to examine the violation, as it exists concretely, in that one particular instance of dispute, and resolve that particular dispute. This means that rather than look at the general causes of a particular dispute, and resolve those, it only ever ‘solves’ a specific dispute. As Herbert Marcuse writes in a different context:

Guided by the principle of operational thinking, the researchers set out to translate or reformulate these statements in such a manner that their vague generality could be reduced to particular referents, terms designating the particular situation in which the complaint originated and thus picturing “accurately the conditions in the company.” The general form was dissolved into statements identifying the particular operations and conditions from which the complaint was derived, and the complaint was taken care of by changing these particular operations and conditions.
Herbert Marcuse, One Dimensional Man

Marcuse’s reasoning, here describing complaints at work beautifully illustrates the principle I am trying to get at. If we assume that a condition, a violation is generated by a set of social relations, then these must be changed to eliminate the violation. But the legal form means that we can only ‘chang[e] these particular operations and conditions’ and often we cannot even change the particular conditions, we can only confer punishment/compensation.

I’ll attempt to illustrate it with an example here. Let’s take the example of rape. Marxists would hold that rape is not an ‘isolated datum’ but is rather ‘a “moment” in a larger structure of meaning that can be known, analysed and potentially defeated’. [i] We would see rape in general as a product of patriarchy, which is itself a product of a set of particular social relations. Therefore, the way to eliminate or reduce rape is to change the conditions that give birth to it. But what does a law do? Here the person who has been raped will assert her right against the rapist and he will be punished. But has this eliminated rape? No. Such a legal response doesn’t get anywhere near the root of the problem. The legal form is structurally unable to change the material relations that generate a particular violation; the content of the regulation is shaped so as to never affect the broader causes of a particular phenomenon.[ii]

This is further reinforced by the fact that ‘the legal relationship assumes its specific character pre‑eminently in the facts of violations of law’[iii] as I said previously, since no law ever destroys itself, every law must leave its own premises intact. As a form of social regulation law can do little to ultimately end the source of violations, or it wouldn’t exist.

Now, of course this does not mean that the law gives no respite, far from it. In a society such as the one we live in today I would not dream of telling people to abandon the law, they can at least resolve particular situations. But what we have to wonder is, does law have a more deleterious effect than simply failing to resolve the material premises of norm violations. For does law not serve this capacity as both an ideological and material legitimation mechanism for capitalism.

Ideologically, people will believe that the society they are living in is ok, because they can ‘fight the power’ through the law. If the law is seen to have some effect then they will divert energy into law that might be spent on something more capable of changing the essential material relations of capitalism, in this way does it not make people more content. As politics becomes ever more legalised has Liberty become the new voice of radical political opposition? If this is true, and what I have said about law is correct, any hope of truly resolving the contradictions that generate violations is dead in the water. Furthermore, the law has the affect of actually resolving the particular dilemmas without recourse to changing the causes; this has the very real effect of ‘glossing’ over exploitative social relations by superficially ‘solving’ their effects. More of this will be considered when I describe the integration of law’s results into a social formation.

Obviously this has implications for the practice of law, and its use in the class struggle. Ignoring the numerous negative points of the law, ignoring the fact that law, as tied to commodity production, can never transcend capitalism we now see that law cannot even resolve violations. This obviously shows how law should never be utilised for social change, suing your employer is never going to eliminate wage slavery (which is where the employer’s lack of care originates). Tort can only ever gloss over the profit motive it can never abolish it. International law can never abolish imperialism, a relation rooted in the deep structure of capitalism. None, of this can happen because of the form embedded in the heart of law.

Therefore any particular content of the law is relegated to a vulgar concrecity within the legal form. And this is the crux of the matter the legal form turns general problems into particular ones. Yet at the same time it represents a naïve level of abstraction, applying ‘equal’ laws to very unequal people. Thus law is the opposite of what a form of regulation should be, and is unable to truly overcome its premises.

Such is the effect of form on content; even the most progressive content of the law is expressed through the legal form, and so is never going to have the wide ranging effect it should. Only politics can truly overcome this. Yet law is really only politics, assuming a certain form. With the increasing ‘legalisation of politics’ as a seemingly inexorable tendency, one wonders if ‘deviation’ will ever be overcome. So at best, law does help some people, but can never change the social relations which cause problems in the first place, at worst it legitimates exploitation and violence.

When I outline the legal order of socialist societies, as actually existing (which is going to be problematic for any IS trots reading this, believe me), we will see how the legal form can organically change into a more effective form of regulation.

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[i] John Sanbonmatsu 2004, The Postmodern Prince: Critical Theory, Left Strategy and the Making of a New Political Subject, New York: Monthly Review Press, page 193

[ii] I’m not arguing here that we shouldn’t have laws against rape (although ultimately I might prefer a different approach). Merely that since rapists are shaped by psycho-social conditions, in order to reduce rape we need to eliminate the conditions.

[iii] E.B. Pashukanis, General Theory of Law and Marxism, p. 111