“Real rules”, then, if I had my way with words would by legal scientists be called the practices of the courts, and not “rules” at all. And statements of “rights” would be statements of likelihood that in a given situation a certain type of court action loomed in the offing.
Karl Llewellyn 1930, ‘A Realistic Jurisprudence: The Next Step’, 30 Columbia Law Review 431, p. 448
Karl Llewellyn was one of the leading legal realists, a movement in which I have grown very interested. As I will later try to show one can make a close link between Marxist materialism and the legal realists, a project which I am currently attempting. Llewellyn’s statement here can be viewed as a continuation of my previous post on rights, and a springboard for further discussion.
The statement, , is a perfect expression of a materialist conception of the law, in two meaningful senses. Firstly, Llewellyn seems to be expressing the same notion as Pashukanis, that a right, materially speaking, is only a right insofar as it is embodied in actual social practice, i.e. if it actually ‘regulates’ conduct. Thus, for Llewellyn a right is in fact a ‘description’ of the likelihood of a certain type of social practice prevailing over the other.
Secondly, and with a bit more extrapolation, Llewellyn is further saying that a right must be judged by its material effects. Of course, such a point is similar to the above, but different enough to be considered in its own right. I think the point here is that with the focus on ‘a certain type of court action’ we move into the terrain of interpretation. Let me explain, the ‘right’ to freedom of speech is prima facie seen as allowing people to express their opinions, yet in the US, if one examines the ‘court actions’ that take place under its auspices, a different story emerges.
Now, I don’t profess to be an expert on US law (frankly, I don’t profess to be an expert on anything), however, I do know that the constitutional guarantee to free speech has been used to allow corporations to make unlimited donations to political parties, so as to guarantee their ‘free speech’. If one takes Llewellyn’s position an examines a right through its manifestation in the court, and so ultimately its manifestation in social practice, suddenly the ‘right’ to free speech becomes a mite more complex.
What this also brings into play is Lenin’s much maligned polemic on freedom, his opinion being:
“Freedom yes, but for whom? To do what?”
Lenin’s retort is a blunt expression of a materialist conception of ‘freedom’, as embodied in ‘rights’. Every right, is a right insofar as it is actualised, but merely noting that it is enforced is not enough, one must note the situations in which it is enforced, what is the right really a right to do? This is the problem with ‘rights consciousness’, and any adoption of it.
Therefore, when we examine a right from a materialist perspective we included within it are all of the ways in which it manifests itself socially. This is because the right has to be seen as a social relation, not a thing-in-itself, but a form of social regulation as embodied in the interaction between legal subjects. This of course leads to the conclusion that the process of interpretation, the way that a particular ‘law’ is interpreted and enforced, in a dispute is hugely important, much more important that what a particular ‘law’ or ‘right’ says ‘on paper’.
By taking the term ‘rights’ at face value we will almost always divert our attention away from a materialist analysis. When we begin to see rights as abstract entities, good in and of themselves, we forget that a right is merely ‘a state[ment] of likelihood that in a given situation a certain type of court action loom[s]’. If one forget this fact there is a tendency to dissociate rights from their material manifestations, their consequences. Such a tendency can only be detrimental, as one need only observe the numerous ways in which seemingly ‘progressive’ rights are put towards reactionary uses. Witness the BNP framing their resistance in terms of ‘freedom of speech’, witness the invasion of Yugoslavia on the basis of ‘human rights’, when one stops analysing rights in a materialist fashion, stops looking at their material actualisation, and simply promotes rights, one may well end up legitimising domination.
And one cannot simply say that these reactionary uses of rights are some kind of ‘perversion’. Certainly these actions are potentialities contained within these general rights, and the very fact that they are manifested materially proves that they are not a perversion. They might well be contingent, in that their actualisation is not guaranteed, but they are certainly internal to the right, and probably internal to the very notion of rights.