Monday, September 05, 2005

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.

[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

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