In order to fully elucidate the effect of class struggle on the content of legal norms it is necessary to have a theory of the state. Since legislation is invariably politics, and is invariably driven by governmental entities, it is necessary to understand the relation between class and state. In terms of the legal norms that are “reflexes” the process is less difficult to outline, as Walter Benjamin once wrote:
It will be argued that a system of legal ends cannot be maintained if natural ends are anywhere still pursued violently. In the first place, however, this is mere dogma. To counter it one might perhaps consider the surprising possibility that the law’s interest in a monopoly of violence vis-à-vis individuals is not explained by the intention of legal ends but rather, by that of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside of the law.
Walter Benjamin, On the Critique of Violence
This is one way to account for natural, material relations becoming recognised by the law, in that the law is forced to recognise that which is already considered legitimate. As Pashukanis noted, a ‘law’ is only truly a law if it regulates behaviour. If the is uniformly disobeyed, or other practices are followed the law is an empty shell. Thus ‘objective’ law is compelled to recognise those widespread social practices which exist or will be materially compelled to exist. This is perfectly in line with Marx, who always insisted that the ‘public’ sphere was grounded in the ‘private’ sphere, the state is shaped by civil society (which of course is a simplification, there is reciprocal causation, but there is causation in dominance by the civil society, and the historical genesis of the state is from civil society.
But this fails to adequately account for class demands, those which do not reflect material relations, but do express the ‘will’ of a certain class. The example most used by Marxists (in an attempt to ward off reductionist Marxism in legal theory) is Marx’s discussion of the working day. Here, there was no already existing practice of regulating the working day, in fact the reality was quite the contrary. It was only through sustained class struggle that such regulation was achieved.
I have no wish to delve into the complexities of state theory (although I am sure I will need to do so soon), partly because I know that I cannot do it justice. Let met say though that I stand by the Marxist definition of the state as a class state, and therefore an ‘instrument’ or struggle, yet I also believe it is necessary a site of class struggle too. In that democracy, such as it is, does allow the proletariat to win some political victories, even if these may ultimately be hollow ones. This being said, I do believe that the modern state is structurally and systematically ‘biased’ towards favouring the bourgeois class and therefore legislation will usually represent their interests.
I imagine that the primary influence of class struggle upon politics, and therefore upon law is not a direct one. In that the bourgeois state, and bourgeois parliament, is structurally biased in favour of bourgeois society and is hardly staffed with the representatives of the working class. Thus class struggle takes place outside of ‘official’ politics and is then mediated in the decisions of politicians. Take for instance the struggle to regulate the working day. What we see is working class ‘combat’ organisation, such as trade unions, etc. militantly fighting for their demands. If they are successful in their struggle, if their strikes etc. are ‘costly’ enough, then their demands might well be met, greater safety measures etc. But, this can have a very different outcome, the law, as a weapon, may be used to restrict the activity of the working class (witness Thatcher’s Trade Union legislation), and working class political organisations.
This is not the only way in which the content of legislation is influenced by class struggle; there are also the more indirect forms. If we assume that ‘proletarian content’ of laws, is a concession made as a result of the class struggle, i.e. to stop militant labour, it stands to reason that the more militant labour is the more concessions will be made. Therefore the international situation can have great effect, an example is the coincidence between labour friendly legislation and the prowess of the Soviet Union, yet as the Soviet Union crumbled it was possible to enact much legislation explicitly against the working class, particularly concerning unions.
This is not to say that the socialist countries were at all times socialist (though I suspect my view is different to that of many of my readers), merely that the Soviet Union did serve as an alternate model, did seem impressive, did defeat Nazi Germany and did fund ‘opposition’ movements. It is a fact that the period following the collapse of the Soviet Union saw the ebb of the class struggle.
There is also the fact that working class political organisations are able to influence the course of politics. So, there have been some fairly radical parliamentarians, and historically at least labour has been swayed into social democratism, or weak forms of socialism. Though such positions are a long way away from socialist revolution, they do have a proletarian feel to them.
Part of the problem here is also disentangling the motives, and reasons for any given piece of legislation. Whilst it may be a product of class struggle, it might also represent an economic ‘reflex’, and may serve the ‘interests’ of a given class in different respects. Thus does social democracy serve the interests of capital or of labour? Is a distinction even tenable? I think this is beyond the current level of abstraction, but it will hopefully become clearer when I describe the integration of a particular law into the ‘totality of social relations’.
As I said above there is also the problem that the bourgeois, as a class, may well have interests different or even opposed to the bourgeois qua an individual[i], therefore much of the legislation of capitalist society (even that which is progressive) is the state regulating the bourgeois class so as to ensure its long-term interests against those of capital’s short term interests:
We must also note that the reproduction of class relations may require may require that a dominant class criminalize the actions of its own members. For example the survival of individual capitalists would be jeopardized if a single capitalist were to gain control over an entire sector of the economy and use this control to raise prices to other capitalist purchasers or to undersell competition. To prevent this capitalists may support anti-monopoly legislation.
David Greenberg 1993, Crime and Capitalism: Readings in Marxist Criminology, Philadephia: Temple University Press, page 468
Often it is difficult to tell precisely where such regulation comes from. Laws concerning pollution, workers education etc. are certainly there to ‘discipline’ capital, guarantee the long-term interests of the capitalist class as against its short-term interests of individual capitals but they are often also pushed for by progressive. This leaves us in a quandary, how was such a particular law created, to whom do the interests belong? It’s often hard to disentangle, and frankly I think that content needs to be approached historically approached in each particular case, so we can determine whose interest is a stake. The approach I offer can attempt to give a general picture, but it will never be the whole one, so later on I may include some concrete studies.
It’s also worth bearing in mind those legal contents which, although arising from material relations, are not really structurally biased in favour of a particular class or indeed any social system, much of the criminal law, in content at least, does derive itself from social relations, but is fairly ‘neutral’ in terms of class interest (though there are numerous mechanisms behind the basic law that are hugely class biased).
However, much of this feels like pure politics, since I am attempting a legal theory blog there are two aspects that I think should be more pertinent in a legal analysis, the process of interpretation and judicial creation, and the interrelation of the legal form and particular contents.
[i] Consider Marx’s remark in the Grundrisse: ‘Every capitalist knows this about his worker, that he does not relate to him as producer to consumer, and [he therefore] wishes to restrict his consumption, i.e. his ability to exchange, his wage, as much as possible. Of course he would like the workers of other capitalists to be the greatest consumers possible of his own commodity. But the relation of every capitalist to his own workers is the relation as such of capital and labour, the essential relation. But this is just how the illusion arises -- true for the individual capitalist as distinct from all the others.’