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.