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’.
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’.
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 , 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.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':
C. Miéville, Between Equal Rights, p.96
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.