[B]y taking for granted that legal phenomena reflect the vagaries of class conflict within an overall structure of system-functional imperatives, the approach avoids all the hard issues and assumes what needs to be proved. The precise questions at stake are whether legal outcomes reflect systemic constraint and social struggle, and if so, why and how this occurs.
Karl Klare, Critical Theory and Labor Relations Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 61 (David Kairys ed., 1990), at 47.
The challenge Klare puts forward here is an important one, although I have outlined how the general, legal character of law is intimately connected with the commodity form, I have not show how particular legal contents are articulated. A Marxist approach to legal content takes, as a starting metaphor, the base-superstructure model, whereby economic relations determine legal relations. This takes on a two sided character, law is created by material relations, and more particularly by class struggle.
But Marxists cannot just say that the content of law is determined by class struggle. As Klare shows it is necessary to show how this occurs, how it is that class struggle is “translated” into legal content at the “legislation” stage. I think it is prudent to attempt to analyse class struggle and material relations as interdependent but separate categories, although frankly the two are inseparable. This is because class struggle’s influence on legal content requires a much more complex explanation, since there is no mechanical identity between the two.
“[T]he jurist imagines he is operating with a priori principles, whereas they are really only economic reflexes”[i]
This passage from Engels’ letter is an important one, if capable of being misunderstood. It is of my opinion that, taken literally, this quote is a bit of a simplification. We cannot say that every legal relation is a “reflex” of the economy; reflex implies an unknowing, automatic effect that does not enter into the consciousness of the legislator. It would seem to me that this does not adequately cover the genesis of legal relations. However, even if Engels is correct he fails to show ‘precisely how an economic reflex or an economic relation becomes a normative legal principle’[ii].
I think that there are some cases where we can say that a legal relation does arise as a reflex of the economic. Firstly, I think this is true of the legal form in general, in that the subject, asserting his/her abstract right, is a relation that arises naturally and objectively from commodity exchange. Secondly, and closely linked to the legal form is the constitution of contract, this again arises naturally from commodity production, as it is the purest representative of the legal form one can see how this would happen. It is not difficult to imagine that such a relation can also be applied to property law, theft etc., here the deviation from the norm automatically creates the norm, e.g. historically the thief was punished by the owner without the need for any conscious mediation by ‘the law’. That such principles are eventually elevated into formal laws is a consequence of the necessity to stabilise bourgeois relations of production. As trade grew more important the norms associated with it necessarily become formalised, due to their continual reinforcement and the necessity of their existence for a stable capitalism. We can see such a position is tenable by examining the history of the law. In Rome for instance the greatest development of stable law was constituted through the ius gentium, law which was ‘made’ so as to facilitate the trade with foreigners.
Material relationships therefore generate legal relationships, in that a deviation from the norm, a dispute, elicits a response. This response is concretely realised in the legal form, and through habitual enforcement comes to be recognised as law. This, of course, only occurs when there such a practice is widespread. A position contrary to this would hold that theft, for example, is punished because a law forbids it. This cannot be correct, in that it fails to recognise those situations where there is no “law giving” authority, here ‘the property relation’ is enforced by the subject’s personal violence. This subject is of course the primordial embodiment of the legal subject, yet here it can only be seen as law creating, in that they are enforcing their ‘property’ in the object and therefore creating this norm.
Such a norm only becomes ‘official’ law when the relations that gave birth to it are widespread and stable, and the ‘law making’ activity becomes regular. In this way a materialist account shows that a violation is what constitutes the law, and the ‘law’ only exists whilst violations occur. Imagine a law forbidding theft if nobody ever stole; such a law would not come into being for there would be no need for it. The same applies to many other ‘economic reflex’ laws, inheritance for example presupposes some kind of private appropriation (ownership is not the right word here, as I will show later). Therefore there are definitely some laws which are constituted as a reflex; these come into being as ‘official’ through their ‘non-official’ enforcement. I think this is well illustrated in the previous post I made, showing how self-defence, is constituted as a legal principle.
These laws are unconscious in that they are organic outgrowths from particular material relations, i.e. the concept of mine, implies the concept of not yours, therefore any society with exchange and the private appropriation of natural resources automatically posits violence against thieves (lest ownership be negated) and so develops property and theft laws. Yet this cannot exhaust the possibilities for legal concept. One need only look at the amount of labour legislation (both pro and anti the working class) to see that this is not a “reflex” of society’s economic structure but rather a result of class struggle (although the position is more complicated than ths, in that class struggle is itself part of the economic structure - but for simplicity'ssake (and also because I think Engels was not talking about class here) we'll keep the division).
In terms of class struggle the first thing that we can do is dismiss the notion that every law reflects the interest of the ruling class. As I wrote in the Functionalist Fallacy such an approach does not seem particularly Marxist to me and more importantly, seems to jar with reality. The only way that one can hold to the position that every law reflects the interests of the ruling class is to deploy a very convoluted logic, or to argue that every change in the capitalist system not resulting in its transcendence is in the interests of the capitalist class. The latter approach (one I can sympathise with and agree with to an extent) can appear quite mechanical and sets up a false dichotomy between reform and revolution. Furthermore, the latter approach would also have to recognise class struggle as a determinant; it would simply make all outcomes favourable to the capitalist class.
I feel that the effect of class struggle on legal content might well deserve its own post, and will require me to do a bit of re-reading; therefore I will post this as an introduction and will continue it when I can…