Friday, June 30, 2006

The Antinomies of Lon Fuller?

So yeah. Whilst I know that Fuller isn’t in my normal range of ‘critical’ theorists I am – as I said – giving him a good read. Enjoyable as he is I seem to detect a little bit of schizophrenia within his ‘concept’ of the law. On the one hand Fuller stresses the ‘internal morality of the law’, and notes that ‘a sufficiently gross departure from the principles of legality … would result in something that is not simply bad law, but not law at all’[1]. Furthermore, he expresses his general approval of a lot of Pashukanis’ work, and is at pains to point out the complexity of the law and its operation. Yet on the other hand he defines the law as “the enterprise of subjecting human conduct to the governance of rules”[2], the important thing to note here is ‘enterprise’. This is critique worthy, and I’ll go more in-depth later.

[1] 197

[2] 122

Tuesday, June 27, 2006

Fuller reads Pashukanis/Marx meets the Liberals

So I’m back from another hard term, and somehow managed to snag a first, I was fairly chuffed, although now it’s back home for the grind. So, once again this blog will become a bit more active, especially since my article on Pashukanis and the Realists is [mostly] finished, bar a few little touch ups. So as of late I haven’t actually been reading that much (I think the last ‘big’ thing I read was Koskenniemi’s From Apology to Utopia – very good it was now). However, owing to a feeling that I need to be a wee bit more ‘down’ with theoretical orthodoxy and in preparation for next year I’ve been reading Fuller’s The Morality of the Law.

The book is fairly interesting – If somewhat Anglo-American and liberal – and it’s a fairly easy read. What particularly grabs my attention is Fuller’s appreciation of Marx and Pashukanis. I’ve always known that Fuller had an appreciation of Pashukanis (see e.g. ‘Pashukanis and Vyshinsky a Study in the Development of Marxian Legal Theory’[1]). What is really striking is how an arch liberal like Fuller (and someone who worships respectfully at the altar of the ‘rule of law’) is able to call Pashukanis ‘the only Soviet thinker who can be said to have made a distinctive contribution to social philosophy’.[2]

However, what Fuller shows is that when one read Marxists they can be read in a ‘liberal’ one-sided way, so as to entirely negate their real content. Fuller agrees with Pashukanis’ central contention that there is an essential connection between ‘the law’ and exchange. He examines the conditions that he thinks are prerequisites for the fullest flowering of ‘duty’ and reciprocity; namely:

  • Voluntary relationships
  • Equal performance
  • Fluidity of social roles

For Fuller these conditions are best actualised in ‘a society of economic traders’[3], and therefore ‘it is only under capitalism that the notion of the moral and legal duty can reach its fullest development’.[4] Of course, this is in some respects an entirely correct representation of Pashukanis’ position as regards law. For Pashukanis, the legal form is intimately bound up with commodity form, serving as both its effect and cause. But the problem is that this is only one side of the story.

What is evident from Fuller’s criticisms of Marx is that he is clearly not properly acquainted with Marx. Thus for example Fuller quotes Philip Wicksteed:

We enter into business relations with others, not because our purposes are selfish but because those with whom we deal are relatively indifferent to the, but are (like us) keenly interested in purposes of their own, to which we in our turn are relatively indifferent … There is surely nothing degrading or revolting to our higher sense in this fact of our mutually furthering each other’s purposes because we are interested in our own … The economic nexus [that is, the nexus of exchange] indefinitely expands our freedom of combination and movement.[5]

Fuller thinks that had Marx ‘could have had this passage before him … the world might today bear a very different aspect for all of us’.[6] But of course this is a somewhat ridiculous claim. To imagine that Marx had never heard – nor considered, nor agreed with – such a claim, whilst managing to critique classical political economy is faintly ridiculous. The fact of the matter is that Marx perfectly well understood this – but he also understood that this was a one sided liberal view of capitalism that equated it purely with exchange. Let us consider Marx’s remarks a propos exchange in Capital: Volume One:

This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.[7]

It would seem therefore that Marx perfectly understood the freedom and equality inherent in the exchange relation [notwithstanding Fuller’s lack of recognition of such a fact]. But Marx is not content to remain within such a limited framework, for as he notes:

On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but — a hiding.

Pashukanis puts it wonderfully in his Preface to the second Russian Edition of the General Theory, noting that ‘‘the republic of the market’ masks the ‘despotism of the factory’’.[8] This is the tension that is inherent within capitalism, on the one hand it is based on individualism, yet on the other hand it rapidly socialises production. This is manifested more specifically in the opposition between ‘individual equality’ on the one hand and ‘subordination to discipline’ on the other, as is shown is the stunning piece written by Ian Grigg Spall and Paddy Ireland (who unfortunately seem to have written little else that I am interested in). The point is that the liberal only focuses on exchange, ignoring the relations that lie ‘beneath the surface’.

What should be noted immediately here is that the liberal is not ‘wrong’, the equality given by the commodity form is not ‘illusory’ or a mere ‘mask’. It has an important real existence that is necessary for the generalisation of capitalism. The point made here is a dialectical one, capitalism is both individualistic and ‘collectivist’, egalitarian and inegalitarian[9], the two aspects are inseparable from one and other. One might attempt to defend against this point by noting that the ‘socialisation’ carried out under capitalism is conjunctural and by no means organic to the commodity form. Yet, as Marx’s analysis in all three volumes of Capital shows, this is simply not the case, the exchange relationship develops into full-blown capitalism.

It is this manner that one immediately recalls Fredric Jameson’s comments on the Communist Manifesto:

In a well-known passage Marx powerfully urges us to do the impossible, namely, to think this development positively and negatively all at once; to achieve, in other words, a type of thinking that would be capable of grasping the demonstrably baleful features of capitalism along with its extraordinary and liberating dynamism simultaneously within a single thought, and without attenuating any of the force of either judgment. We are somehow to lift our minds to a point at which it is possible to understand that capitalism is at one and the same time the best thing that has ever happened to the human race, and the worst.

Fuller’s blindness to this essential aspect of Marx’s work leads him to misunderstand Pashukanis and the implications of his work. Though, it is probably accurate to say that Pashukanis did not examine the ‘bad’ sides of the legal form as thoroughly as he could he certainly made several tantalising comments in that direction. One of his most important remarks in this regard is the notion that:

Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society".[10]

The point here is that the commodity-form theory might well say that ‘the rule of law’ etc. is rooted in commodity exchange. But it further notes that this means such notions are not all they are cracked up to be. Certainly they have there good sides, but for every good party there is the dialectical other – coercion, violence and hierarchy. This is a consequence of the contradictory nature of the capitalist totality itself – and as such is unavoidable.

Fuller’s understanding is that of the typical liberal. He sees only the ‘good’ side, the equality and reciprocity within the commodity form, without seeing what this ‘good’ side is indissolubly connected to. Of course it might be that Fuller attempts the tradition manoeuvre (a la Hayek) of making a separation between actually existing capitalism and an idealist world of ‘simple commodity exchange’. Yet, it is questionable whether ‘simply commodity exchange’ has ever existed in this way as a widespread ‘mode’ of production [it usually existed on the periphery of systems that formally enshrined inequality]. And even if it has, it leads would seem to lead ineluctably towards large scale capitalism.

Thus, Fuller seems to fundamentally misunderstand the Marxian perspective, he takes one step forward – in recognising the link between ‘the law’ and commodity exchange[11] – and two steps back – since he refuses to examine the logical implications of such a manoeuvre. Such a position is characteristic of those Marxists who have become renegades, they suddenly choose to elaborate on the fact that Marx praised capitalism, liberal values etc. – without noting that even whilst he did this he pointed out their inner truth. So if you ever hear someone ranting about Marx’s intro to the Communist Manifesto and his praise of the bourgeoisie just bring up Jameson’s critique – and show them that they really don’t get Marx.

Hmmm. Ok I’ve said very little with a lot of words. One last example of the liberal misunderstanding of Marx [and this is a hilarious one]. According to Fuller Marx had a ‘fundamental aversion to interdependence’[12]. This is a bit rich when describing a man who looked forward to a society in which 'the individuals obtain their freedom in and through their association'. What Fuller again seems to be doing is exercising that liberal habit of undialectical thinking, for Marx interdependence and individualism under capitalism constantly come into conflict, and end up creating ‘one-sided’ individuals. Fuller seems to mistake aufbehung/sublation/synthesis for rejection, for of course Marx foresees that in a communist society interdependence becomes the prerequisite for independence and vice-versa.

In the end I’m not really sure what is remarkable about this. Perhaps what is most interesting is that a respected, orthodox scholar takes Pashukanis seriously. The result demonstrates one thing – Marxism is not liberalism. This might sound obvious, but it’s worth bearing in mind. There has often been an attempt by the softer left to ‘reclaim’ Marx from Lenin. Lenin is seen as the mean and nasty anti-liberal, whilst Marx is the nice man who spoke up for rights. But the reality is so much more complex than that. Marx’s critique of capitalism is simultaneously a critique of liberalism (since liberalism presupposes capitalism). He doesn’t simply ‘reject’ it. But what he does is engage in immanent and external critique. Firstly, he shows that the reality of liberalism is inherently contradictory, since it is tied up with commodity exchange, which is itself ‘split’. Secondly, on this basis he engages in immanent critique, liberalism can never live up to its own hype – because it systemically undermines its own goals. So I’ll close with a lovely quote from Chris Arthur:

In truth the demand for equality, or for equity in economic and legal arrangements, does not go beyond a radical bourgeois framework and does not grasp the qualitative break with previous forms that Marx looks forward to. Equality is the highest concept of bourgeois politics. It is not accidental that Marx never issued any programmatic declaration for it.[13]

[1] (1949) 47 Michigan Law Review 1157

[2] Lon Fuller (1964), 'The Morality of the Law', Yale University Press, at p.24 [Although I personally would doubt this conclusion there are a host of Soviet thinkers who have made some very original and sound arguments

[3] ibid p.24

[4] ibidp.24

[5] ibid p.26

[6] ibid p.26

[7] Capital

Pashukanis (1978), General Theory of Law and Marxism, Ink Links at p.39

[9] Yes I realise this in itself would require a whole book - could we just accept it as a tendency - pleeeeeease?

Pashukanis (1980), Selected Writings, London: Academic Press, p.71

[11] Although he later moves back towards the position of law qua rules

[12] Fuller (1964), op cit p.26

[13] Chris Arthur’s Introduction to the Ink Links edition of the General Theory at p.23

Sunday, April 02, 2006


Yesterday I read an article by William Scheuerman – ‘After Legal Indeterminacy: Carl Schmitt and the National Socialist Legal Order’.[1] Schmitt is an odd character for me and at some point I do intend to make more of an engagement with him, when I get the time. I first came to Schmitt through Neumann and Kirchheimer, and was therefore pretty critical of him. All I really knew about Schmitt was that he was a Nazi and so was pretty shocked when I found out just how popular he was with the new left.

Now I still maintain a pretty critical distance from him, however, in order to understand a whole lot of modern people writing about the law (Agamben, Hardt and Negri, Zizek etc.) and the particular conjuncture we’re living through (permanent state of emergency). This being said I’m not really whether Schmitt can’t be ‘replaced’ with a bunch of other critical legal theorists (e.g. the Crits, the Realists and of course the Marxists).

Scheuerman’s account is pretty interesting. I already knew a lot of what he says as regards indeterminacy. However, I have a few issues with the way in which he addresses it. My biggest problem with what Scheuerman rights is that he seems to confuse indeterminacy with unpredictability. Take for instance his account of how Schmitt wanted to distance himself from radical indeterminacy. Essentially for Schmitt much of the indeterminacy present in the law owed to the fact that different ethnic ‘spirits’ attempt to use the law for their own, radically different ends. Therefore Schmitt proposed a way to render the law more predictable. If the judiciary was purged of all non-German elements and rendered ethnically homogenous, then they would all reach the same conclusion on the ‘meaning’ of a particular norm.

The thing is that this wouldn’t render the law determinate. Brian Leiter distinguishes between two different types of indeterminacy, causal and rational indeterminacy:

‘The Realists famously argued that the law was “indeterminate”. By this, they meant two things: first that the law was rationally determinate, in the sense that the available class of legal reasons did not justify a unique decision … but second, that the law was also causally or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did.’[2]

What this means – of course – is that a predictable legal system is perfectly capable of being indeterminate. It will not be predictable upon the basis of the law but provided one knows what to look at the law could be predictable. Thus even if ‘[l]egal categories are simply “empty vessels” filled by acts of power that force meaning into them’ provided one can make an analysis of ‘power’ one can predict the law in some way.

Of course, as Leiter notes this entails a certain positivistic view as to what constitutes a ‘legal’ source. Thus someone arguing that Schmitt was able to introduce some kind of determinacy into his legal theory might say that the ‘ethnic spirit’ constitutes a legitimate legal source, and therefore the law is not causally indeterminate, furthermore, one might then say that by introducing a racially homogenous judiciary the law is no longer rationally indeterminate, insofar as these ‘legal’ reasons can now justify a unique result.

However, one should briefly note the words of Martii Koskenniemi as regards indeterminacy:

[T]his [the indeterminacy thesis] is not a semantic thesis about the linguistic vagueness of norms. Some rules are clearer than other rules. The indeterminacy thesis deals with relationships between rules and exceptions, counter-rules and the reasons for rules, and shows that even a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule. Because rules are no more important than then purposes for which they are enacted, and because there is disagreement about those purposes (as rules always come about through legislative compromise over ‘conflicting considerations’). It is always possible to set aside a rule. Thus, all law (and not just semantically unclear law) is infected by indeterminacy. There is, in this sense, no middle-of-the-road solution at all: even one that initially seems such, is an occasionalist reliance on a momentarily hegemonic solution.[3]

What is important to note here is the notion of a ‘momentarily hegemonic solution’, Schmitt’s theoretical analysis proposes a solution that is clearly based on a momentary hegemonic solution. Determinacy and meaning are ‘imposed’ from the ‘outside’. Scheuerman himself notes that Schmitt’s solution was ultimately ineffective and in fact ‘consistency was guaranteed, first and foremost, by institutional and political mechanisms’.[4] What seems puzzling about this is that Scheuerman is contrasting the purging of the judiciary with ‘political mechanisms’. Yet surely the purging of a judicial caste is the quintessential political act. What I think Scheuerman is trying to say is that the hegemony of meaning is guaranteed through a continual imposition of political mechanisms. Yet this is not unique to Nazi Germany, all societies have some way in which ‘politics’ are able to determine legal results.

The difference is in that most societies these politics are contestable and different classes are able to, in some way have an effect on the legal process. Nazi Germany is a particular case, and it’s something I want to look into more – namely the relationship between monopoly capitalism, Nazism and class struggle. One day I intend to write more on this, as this is the point at which law, fades into pure politics and administration. So one day y’all are going to hear an invocation of Adorno, Freud, Palme-Dutt and Gramsci on fascism and I will attempt to relate it back to the legal form.

At the end of his piece Scheuerman tells us that ‘challenge’ that Schmitt lays down for radical indeterminacy:

At the very least, it seems incumbent on some contemporary radical jurists to do a better job explaining why their embrace of the radical indeterminacy thesis need not succumb to the ills so evident in Schmitt’s National Socialist writings. The case of Schmitt clearly contradicts the dogmatic assumption shared by some jurists today “that liberating those who wield legal power from the ‘mistaken’ belief that legal doctrine constrains their actions will have a progressive effect.”[5]

Scheuerman, quotes Larry Solum here, and I think they’re a both a bit off base. Firstly, I think it’s a very small minority of jurists who believe that a belief in legal indeterminacy will have a necessarily positive effect. In many respects I’d say the opposite is true, knowledge that ‘legal doctrine’ is merely a vessel can be disastrous. One merely has to observe some of the decisions of class conscious members of the English judiciary to see that once politics is explicitly let in it can be a bad thing. This being said surely what the indeterminacy thesis posits is that knowledge of the law not being determinate will have very little effect on legal decisions. For even if one acknowledges that the a unique result is not capable of being achieved through the available legal reasons one nonetheless needs a legal ‘ladder’ with which to reach a particular result. Thus even if one was aware of the lack of binding legal reasons one couldn’t ignore the law altogether. Furthermore, even if one does recognise law is politics (in a certain sense) it does not follow that its progressive, that depends on one’s view of politics (and I’m pretty sure most ‘critical’ legal theorists do not see politics as automatically progressive).

One ought also to recognise that post-liberalism can take many different forms. I personally would vastly prefer liberal-legalism to Nazism. But post-liberalism need not necessarily be Fascistic, and post-liberal social regulation need not be legal in form.

[1] 19 Cardozo Law Review 1743

[2] Brian Leiter, American Legal Realism, p.3

[3] Martii Koskenniemi, ‘And by Their Acts You Shall Know Them…(And Not by their Legal Theories), EJIL 15 (2004) 839, at p.850

[4] Scheuerman, op cit, p.1766

[5] ibid, .1769

Saturday, April 01, 2006

Fundamental contradictions

So here's an excerpt of something I seem to have working on forever, basically I'm trying to place the idea of a 'fudamental contradiction' being responsible for legal indeterminacy within a Marxian framework:

At this point it is useful to return to the Critical Legal Studies Movement. Much of the analysis of the Critical Legal Studies Movement focuses on the notion of a ‘fundamental contradiction’. It is held that indeterminacy in the law is a by-product of fundamentally irreconcilable postulates of liberal ideology. For Duncan Kennedy ‘the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it’.[1] The irreconcilability of the individual and the community in liberal political theory is said to pervade all legal doctrines in some way, shape or form, and as such ‘a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule’[2].

Kennedy invites us to ‘[s]uppose that the fundamental contradiction has “always” existed, in its present degree of intensity and pervasiveness’, which therefore makes us wonder why ‘it has either not been experienced at all, or not acknowledged by any of the succeeding generations of Western Leading thinkers … of the very recent past’. He further invites us to suppose that ‘there have existed processes of mediation, or denial’
[3] that served to ‘hide or disguise it from those engaged in the enterprise of legal thought’.[4] From a Marxist standpoint this position is eminently worthy of critique, Brian Leiter has described Kennedy as a ‘philosophical liberal who views the ‘conflict’ between individual and society as a perennial feature of the human situation’[5] who has ‘abandoned all the philosophical content of genuine antiliberal positions’.[6]

However, the rational kernel of this position can serve as a starting point for a Marxist account, provided its flaws are properly addressed. Kennedy’s line can be critiqued on two basic fronts. Firstly, there is the problem that he (like Roberto Unger) ‘presents his favoured principles and disfavoured counter-principles as universal: he gives no indication of their genesis or the conditions of their existence’.

This criticism is not entirely fair, as it is possible to – even on Kennedy’s own terms – to find an account for the conditions of the existence of the fundamental contradiction. Although Kennedy asks us to ‘[s]uppose that the fundamental contradiction has “always” existed’ he immediately posits that this contradiction has been historically mediated and hence ‘hidden’. If a contradiction is ‘mediated’ and hidden it is not ‘active’, and therefore has no effect upon the law – if this is the case this then materially speaking there is no contradiction at all. If this is the case then there must be some reason why it becomes active. This explicitly opens the door for a materialist account of the conditions that allow it to become active – in effect the conditions of its genesis.

The stronger critique is the second one, that ‘in Critical Legal Theory, abstract notions such as ‘individualism’ and ‘altruism’ have come to be seen as producing contradictions in their own right qua ideas’.
[8] From a Marxian standpoint this is obviously insufficient, as a Marxist account as its prime role is to show ‘how theoretical problems are generated from the relations between individuals in society’. One can easily reconstruct Kennedy’s account by integrating it within a historical materialist framework. A Marxist account would address the two problems together, as inseparable moments in a historical movement. For China Miéville the basic Marxist position is that the ‘social relations of general commodity production are the foundation for liberalism and its contradictions’.[9] This analysis provides a starting point, however much more detail is required; one must conduct a historical analysis of the development of these social relations, so as to see how they relate the fundamental contradiction.

Much of the analysis has already been laid out in this piece. The basic account of how the transition from liberalism to feudalism provides a background theoretical and historical account. Such an account is further fleshed out in Marx’s account of pre-capitalist societies in the Grundrisse.
[10] For Marx ‘human beings become individuals only through the process of history. He appears originally as a species-being [Gattungswesen], clan being, herd animal[11], in this context the fundamental contradiction cannot be active, since the individual is mediated through the community. This is mirrored in the notion of hereditary privilege and custom. However, as has previously been outlined ‘[e]xchange … makes the herd-like existence superfluous and dissolves it’.[12] Such an analysis is necessary but not sufficient for a Marxian account of the fundamental contradiction. Although it has posited how individuals might well suddenly come into conflict one would imagine that since the ‘community’ has been dissolved there is suddenly nothing that conflict with these individuals.

Of course, this notion is premised on the idea that the community that remains is simply an aggregation of these individual wills and therefore has no ‘collective’ aspect. This is patently false. In fact, the Marxist position is much more complicated than this. A Marxist approach does not hold that the ‘organic community’ is the only form of ‘collectivity’ that exists, thus the abolition of this community and the transformation of its constituents into individual commodity bearers (and consequently legal subjects) does not mean that society has been rendered more individualistic. In fact the development of the capitalist economy, even at its most basic has a very different result. In Capital, Marx outlines the process whereby capitalist production develops from manufacture. The key element in this process is the drawing together of labour under capital – ‘the laws of the production of value are only fully realised for the individual producer, when he produces as a capitalist and employs a number of workmen together, whose labour its collective nature is at once stamped as average social labour’.
[13] Thus capital, as a social relation – even whilst it is dissolving ‘the herd-like existence’ – requires the drawing together of people in cooperative endeavour

Furthermore, the historical development of the capitalist economy has led to an ever greater development in communication and socialisation. As Marx and Engels famously put it in the Manifesto of the Communist Party:

The bourgeoisie keeps more and more doing away with the scattered state of the population, of the means of production, and of property. It has agglomerated population, centralised means of production … The necessary consequence of this was political centralisation. Independent, or but loosely connected provinces, with separate interest, laws, governments and systems of taxation become lumped together[14]

The advance of capitalism has facilitated greater and greater intercourse between people and nations, developing as it has new forms of communication as a necessity for economic intercourse. Yet simultaneously with this development it continuously posits individuals (both economically and legally) as isolated subjects, herein lies the materialist explanation of the fundamental contradiction. Marx and Engels recognised that this contradiction was important, and that it operated on both a micro and macro level in capitalist society. Thus, in his discussion of cooperation Marx noted that ‘[b]eing independent of each other, the labourers are isolated persons, who enter into relations with the capitalist but not with one and another. This co-operation begins only with the labour process’.[15]

Engels is much more forthright in dealing with this contradiction, and deals with as a global contradiction. For Engels ‘production itself had become in essence socialised. But they were subjected to a form appropriation which presupposes the private production of individuals’, this contradiction ‘contains the germ of the whole of the social antagonisms of today
[16]. In fact, rather serendipitously Engels refers to this as the ‘[f]undamental contradiction’.[17] A Marxist account therefore locates the contradiction giving rise to indeterminacy in the law firmly within the realm of commodity production. Commodity production necessarily posits individuals as isolated subjects, whilst simultaneously developing an ever more socialised form of production and society, as this develops the two come into irreconcilable conflict, which is itself manifested in other social forms. In this way the conflict between the ‘individual’ and society is historicised and placed firmly within the realm of the material. One can also explain why indeterminacy did not necessarily plague all other legal systems, as it is only upon the generalisation of commodity exchange (i.e. capitalism) that the ‘community’ is destroyed concurrently with an increasing socialisation of all aspects of life.

Such an analysis is not entirely ignored in Pashukanis’, who recognised that the law is ‘a form of external authoritative regulation and a form of subjective private autonomy’. This analysis is carried further and beautifully linked with the notion of a fundamental contradiction in capitalist commodity exchange when Pashukanis puts forward the position that law ‘appears both as the basis of social organization and as the means for individuals “to be disassociated, yet integrated in society”’
[18]. What is particularly interesting is that Pashukanis seems to notice the inherently contradictory position of the commodity form and the legal form, insofar as both posit an isolated individual subject yet this subject is necessarily posited in terms of another subject.

I'm not entirely satisfied with, I need to expand on the basic contradiction inherent in the commodity form (which Pashukanis identifies) and then maybe put in a reference to the Hegelian dialectic of consciousness. This has also prompted me to start thinking some more about criminal law from Pashukanis' perspective, and about the critiques he's received on the subject.

[1] Kennedy, 28 Buff. L. Rev. 205 1978-1979, Structures, p.210

[2] Martii Koskenniemi, ‘And by Their Acts You Shall Know Them…(And Not by their Legal Theories), EJIL 15 (2004) 839, at p.850

[3] Kennedy, Structures 213

[4] Kennedy, Structures 214

[5] Leiter, 1997 17 Oxford J. Legal Stud. 367, p.383

[6] Leiter, 1993-1994 142 U. Pa. L. Rev. 549, p.574

[7] David Jabbari, From Criticism to Construction in Modern Critical Legal Theory, 1992 12 Oxford J. Legal Stud. 509, p.519

[8] Jabbari, p.541

[9] Mieville, BER 54

[10] Marx-Engels Reader, p.261-276

[11] MER, p.262

[12] MER, p.262

[13] Capital, p.196

[14] MER, p.477

[15] Capital, 204

[16] MER 704

[17] MER 717

[18] GTLM 70

Tuesday, March 21, 2006

Martti's materialism?

Well, to those of you who still read this (and hopefully those who check up once in a while) I think I’ll be back online for the foreseeable future, although revision may mean it’s rather sporadic. Lots of horrible things have happened since my last post – like me finally leaving my beloved teenage years and turning 20 and me being past the halfway point of my undergraduate degree.

Anyway, I’ve been reading a ton of Koskenniemi as of late and am enjoying him immensely. I’ve begun to dent From Apology to Utopia, which is an awesome read (and is surprisingly readable too) and have been reading a fair few articles. Anyway, one thing I’ve been wondering is whether Koskenniemi has become more and more materialist as time goes by, and therefore whether one can take his old work as ‘seriously’ as his later work.

In fact one thing that really irritates me about From Apology to Utopia, is that Koskenniemi roots the problems of international law in political liberalism (as a purely ideological phenomenon), rather than in any specific material conjuncture. However, the account in apology (particularly that of the growth of the ‘liberal order’) is actually very materialist. Koskenniemi’s real problem here is that he fails to properly situate bourgeois freedom in its material context. Contra Koskenniemi I would insist that while the destruction of the feudal order and liberal politics are linked the movement is occasioned by a deeper material shift (one day I will post a skeletal account of this but I think there may be something is some of my ‘what is law’ posts too).

However, every so often I see something that totally jars me. Take for instance his account in The Police in the
Temple Order, Justice and the UN: A Dialectical View.[1] I think my biggest problem is that in this sort of work Koskenniemi posits the structuring categories of international law as ‘normative ideals’, take his account of the relationship between sovereignty and power:

The very need for and definition of order are normative statements in their own right: conceptualizing ‘order’ in terms of stability, peace, or the ‘securing of the elementary needs of the relevant group’ creates an axiological system with a normative premise. So does the definition of the basic units (States, say) or the basic concepts describing their relations (sovereignty, say).[2]

Here he posits states and sovereignty as ‘normative statements’, which are therefore ‘external to the fact of power and claim to provide a measure for its acceptability’.[3] This is where I think that China Miéville’s approach is far superior. The structuring concepts of international law are not mere statements ‘external’ to the fact of power; they are objective categories through which power is articulated.

Furthermore, I think this definition is based on a very narrow notion of power, and one that ignores power as a structural category. Although one might say that sovereignty is not immediately connected to any particular geo-political balance of power (e.g. the
US would love to just be able to invade everyone), one can easily connect it to the broader category of imperialism. Now, I really don’t want to go into the connection between imperialism and international law so I’d suggest you read China Miéville – plug – and possibly re-read some of my earlier stuff about the relationship between the commodity and legal form.

Now, if it is borne in mind that the structuring categories of international law are rooted in exploitative power relations in the material ‘base’ of the international order, then saying that it is ‘external’ to power becomes much more problematic. These ‘normative statements’ are in fact intimately connected to power in its organic sense, insofar as both are anchored in the same system. Of course the two exist reciprocally, insofar as power is constitutive of the international legal order but also exercised through this order.

Koskenniemi seems to recognise this in his later work, which is what leads me to question his older work’s usefulness. In What Should International Lawyers Learn From Karl Marx?[4] he says:

Again, when we seek to answer the question about legal authority (sovereignty) with regard to a piece of territory or a group of people, we look into both what it is that history has produced (‘effectiveness’), and what ideas of just government might tell us (‘legitimacy’). Much of the law on territory and jurisdiction captures this opposition – though none of it is able to explain exhaustively why ‘effectiveness’ should trump ‘legitimacy’ (after all, ex injuria non jus oritur) or vice-versa (after all, ‘rights cannot be presumed to exist merely because it might seem desirable that they should’). Neither is able to override the other because their opposition is part of the discursive world in which they belong – which they, in fact, create. Notions such as effectiveness and legitimacy (like consent and justice) interact dialectically: effectiveness creates legitimacy while legitimacy singles out the types of effectivités that have normative value (in contrast to those that are merely contra legem).[5]

Now although this is a slightly different context here we see that Koskenniemi has problematised the relationship between ‘power’ and ‘legitimacy’ to a much more accurate degree. Legitimacy is now seen not as external to power, but constituted by it. However, he does not take the next step, a step outlined rather interestingly in a footnote in Istvaan Meszaros’ Beyond Capital:

As we can see Weber turns everything upside down. For it would be much more correct to say that the objective needs of the modern capitalist state gave birth to its class-conscious army of jurists, rather than the other way round, as Weber claims with mechanical one-sidedness. In reality we find here also a dialectical reciprocity, and not a one-sided determination. But it must also be added that it is not possible to make more than tautological sense of such reciprocity unless we recognize – something that Weber cannot do because of his far from neutral ideological allegiances – the übergreifendes Moment (the constituent of primary import) in this relationship between the ever-more-powerful capitalist state, with all its material needs and determinations. And the ‘jurists’ happens to be the former.[6]

Of course one needs to be a thoroughgoing materialist to actually break this dialectical cycle but Koskenniemi has moved beyond his older division of ‘power’ and ‘justice’. A materialist account would also have to look at what ‘justice’ is and how it is determined, justice as an ‘ideological’ category is obviously materially contestable. Again Koskenniemi seems to notice this in his What Should International Lawyers Learn From Karl Marx?, where he urges us to ‘analys[e] the play of legal dichotomies, not in terms of an abstract logic of concepts but as a series of articulations of positions in concrete, historically situated political struggles.’[7] And rather dramatically:

Thus, for example, the unresolved tension in Marxian thinking between self-determination and internationalism can finally be seen not as a theoretical failure but an openness to what can be attained through praxis. Many have pointed out the interdependence of these two opposing notions. For Marxian thought they present not a problem to be resolved, but a horizon of political possibility. Whether one would prefer action within a national or an international frame remains then a pure issue of situated reason, of addressing the consequences of alternative choices, and not a derivation from some abstract and unhistorical either-or theory. Against Rosa Luxemburg, Lenin was right. Only the historical situation can tell; only praxis may achieve.[8]
Now, one wonders whether praxis is the correct word here. In the Marxian canon praxis usually refers to conscious, theoretically informed practice. But here he cannot merely be talking about the practice of Marxists or the socialist movement, as this practice has to be considered (when one talks of the field of international relations) as a struggle in a particular material context.

This isn’t just Marxian materialism – it’s fully blown Leninism, one is tempted to invoke Lenin’s much maligned polemic (one which incidentally I am in love with) – ‘all arguments about freedom and equality should be accompanied by the questions: freedom for which class, and for what purpose; equality between which classes, and in what respect’. But the problem here is that one can no longer say – ‘the point is that they are external to the fact of power and claim to provide a measure for its acceptability’

The standards are no longer external to power, power is definitionally vital to ‘standards’. Now one might perhaps say here that power is not constitutive, merely interpretative but I would have words to say about that. Firstly it is rather ridiculous to separate a standard's ‘creation’ from its application - such formalism doesn't really tell us very much about how the law works. What a standard was 'supposed' to mean is a rather unimportant question, especially when dealing with the law. Secondly, there is still the more complex view on the link between the legal form and imperialism, one which simply cannot be ignored.

If this post makes no sense, please note it was written at 1AM, after I am sure I burnt out from reading some horrible article on custom…

[1] 1995 6 European Journal of International, p.325

[2] p.330

[3] p..328

[4] 2004 17 Leiden Journal of International Law 229

[5] p.238

[6] p.257, n.36

[7] p.240

[8] p.242

Wednesday, February 15, 2006

Thursday, February 09, 2006

Lenin, Lenin and Zizek on rights

Hello dear readers (well those who remain). I will post more soon (if you want me to) but I have terrifyingly busy this term and not particularly inspired. However, I felt compelled to respond tothe furore surrounding this whole 'cartoons' situation. First and foremost I really suggest you read K-punk on this which is for my money by far the best analysis of the whole situation - one which manages to negiotate the twin pitfalls of a knee 'I love freedom of speech' reaction and the 'long live Allah!' response. In many respects this reminds me of Zizek's Against the Double Blackmail, where he states:
What if phenomena like the Milosevic regime are not the opposite to the New World Order, but rather its SYMPTOM, the place at which the hidden TRUTH of the New World Order emerges?
In a rather typical post Lenin (the God of the left blogosphere for what my opinion's worth) addresses the issue of 'free speech' as regards the current problems:
Free speech, then, is in material terms, in this climate, and at this conjuncture, the freedom to denigrate black people, Muslims, Arabs and just about anyone liable to come on the wrong end of Western power. So cut it out. It's not funny any more, just quit it.
Normally, I think I come off as quite the 'moderate Marxist' but in this case I think I agree with Lenin to a large degree. As I hope I have consistently stressed in this blog 'rights' and 'freedom' are necessarily indeterminate, and as such are infinitely contestible - as such specifc conjunctura; balances of class forces will affect them rather a lot. Lenin's analyis spot on as it is reminds me of another Lenin, who (apparently) responded to the question of freedom with:
“Freedom yes, but for whom? To do what?”
Such is the necessity of a materialist analysis. Freedom simply cannot be understood as some 'idea' eternally floating above all specific historical and material considerations. Rather particular types of 'freedom' must be considered as rooted in and posited by particular material conjunctures and organic tendencies. If one ignores the fact that 'freedom' is demarcated by struggle one lapses into a horrifyingly bourgeois discource (I'm not saying 'freedom' is bourgeois, merely that freedom is a historically and materially conditioned concept). In this regard I really like Zizek's quote vis-a-vis human rights:
So, to put it in the Leninist way: what the ‘human rights of Third World suffering victims’ effectively means today, in the predominant discourse, is the right of Western powers themselves to intervene politically, economically, culturally and militarily in the Third World countries of their choice, in the name of defending human rights.
But. One thing that all of these (exceedingly clever) people seem to ignores it the possibility that conjunctures can change. Whilst I agree entirely that currently many 'rights' are entirely dominated by capital I also understand that their contestibility means that class struggle can change their content. Though I am under no bounds about the historical and material origin of rights (commidty production see my older posts) I also get that in our current organic situation struggle can redefine these rights.

Thus rather than 'abstaining' from freedom perhaps we should be engaged in redefining it...

Friday, January 13, 2006

More on that whole human rights thang...

So in connection with my previous post I have continued along the precarious path of reading complex French philosophy (don’t worry I’m still reading Marxists too). Reading Jacques Rancière’s Who is the Subject of the Rights of Man actually managed to give me some good ideas.

So at the end of my last post I looked into the relatively innocuous question of how those outside of a national framework are able to be interpellated as legal subjects. Firstly, I think that a functional explanation is sufficient to explain why corporations and other international bodies are posited as legal subjects. It is axiomatic that if the legal form is both a product and guarantor of commodity exchange then those subjects engaged in exchange will be interpellated as legal subjects. With the increasing globalisation of trade and the centralisation/monopolisation of capital it is prima facie obvious that these bodies will need to become legal subjects. The same goes for non-economic international bodies, in order for these bodies to actually work they need status as a person, politically they have the support of the most ‘important’ imperialist nations, and so it follows that they will become subjects.

However, there is still the problem of ‘stateless people’. Functionally, there is no need for them to become legal subjects, precisely because they are not engaged in any exchange function. One imagines that as soon as a stateless person is of some ‘use’ to capital then they will be able to become a legal subject (i.e. once they start working).

But this does not really explain how stateless people qua stateless people are able to become legal subjects. Rancière has an interesting – if somewhat impenetrable – approach to this question. Firstly Rancière, as is usual for these people, looks at Hannah Arendt’s Origins of Totalitarianism, where she poses the following paradox vis-à-vis human rights:

She makes them a quandary, which can be put as follows: either the rights of the citizen are the rights of man – but the rights of man are the rights of the unpoliticized person; they are the rights of those who have no rights, which amounts to nothing – or the rights of man are the rights of the citizen, the rights attached to the fact of being a citizen of such or such constitutional state. This means that they are the rights of those who have rights, which amounts to a tautology.[1]

This in essence is the problem that we have as regards those stateless people, if human rights are the rights who have no rights they are nothing. Rancière’s (confusing) solution is that ‘the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not’[2]. However, he becomes much clearer later, and in fact posits what one might term a materialist explanation.

Basically he illustrates this sentence in terms of the French Revolution, where Olympe de Gouges – a woman – said ‘if women are entitled to go to the scaffold, they are entitled to go to the assembly’[3]. Essentially what she tried to show here was although women were denied political rights, they were entitled to the ‘right’ to be executed for betraying the revolution and thus those who are apparently excluded from the political are in fact included.

For Rancière this is an example of ‘dissensus’. He says:

A dissensus is not a conflict of interests, opinions, or values; it is a division put in the “common sense”: a dispute about what is given, about the frame within which we see something as given.[4]


[T]hey could demonstrate, through their public action, that they had the rights that the constitution denied to them, that they could enact those rights. So they could act as subjects of the Rights of Man in the precise sense that I have mentioned. They acted as subjects that did not have the rights that they had and had the rights that they had not.[5]

He then abstracts:

It is the opening of an interval for political subjectivization. Political names are litigious names, names whose extension and comprehension are uncertain and which open for that reason the space of a test or verification. Political subjects build such cases of verification. They put to test the power of political names, their extension and comprehension. They not only confront the inscriptions of rights to situations of denial; they put together the world where those rights are valid and the world where they are not. They put together a relation of inclusion and a relation of exclusion.[6]

Now, the idea of a ‘dissensus’ I feel actually has some merit if it is (rather radically) reinterpreted in a materialist fashion. What Rancière has identified here is the gap between the formal and the real in rights discourse. The formal ‘language’ of the rights is only meaningful insofar as it is transformed into real social practice. This is of course the message that Pashukanis and the realists have driven home time and time again.

The point here is that Rancière identifies a ‘conjunctural moment’ in the legal process. The ‘gap’ between the formal and the real, the transformation of the formal into the real is a political matter. Thus Rancière is able to take the Marxian approach of seeing law as politics expressed within a particular form. The problem here is that the ‘rightless’ are not legal subjects so how can it be that they struggle through the legal form?

I would have to say that they don’t. Obviously the struggle to become a legal subject cannot be done as a legal subject; it must be the sphere of politics alone. However, this is not quite correct. What Rancière seems to be saying is that ‘legal concepts’ (such as they are) are tested by those who are not yet legal subjects through the political sphere. This is a case of man proving the ‘this-sidedness’ of a legal ‘concept’ through ‘practice’.

One might perhaps therefore say that this is an ideological-political struggle, in which case one can give credence to Engel’s thesis as regards the elasticity of the law:

[Law] must … be an internally coherent expression which does not, owning to inner contradictions, reduce itself to naught[7]

However, I do not think that such a struggle is purely ‘ideological’. Firstly, insofar as the struggle will aim at real material results it is political. Secondly, the basis of the struggle will not just be the internal coherence of the legal form, it will instead be the objective social relation of the legal form, as is constituted through commodity exchange.

This view is useful insofar as it does not render those without states as passive victims of the machinations of evil Capital. It rather sees within them the embryonic structure of the legal form, precisely because they are struggling to materially constitute it. As Rancière puts it, in a very materialist fashion:

This is also why today the citizens of states ruled by a religious law or by the mere arbitrariness of their governments, and even the clandestine immigrants in the zones of transit of our countries or the populations in the camps of refugees, can invoke them. These rights are theirs when they can do something with them to construct a dissensus against the denial of rights they suffer. And there are always people among them who do it.[8]

Whilst a purely ideological model of dissensus may seem off, locating this in the political sphere does seem important. It perhaps also fits in with the notion of the bourgeoisie having a much greater hegemony than any other class before it, and the struggle some groups go through to gain these rights.

However, it does raise fundamental questions about the intersection between the political and the economic in a capitalist totality. Whilst it is obviously true that in some cases a structural-functional imperative causes a subject to be posited as ‘legal’, this cannot be the case everywhere. There is obviously also the idea that as the commodity form destroys traditional methods of dispute resolution, the legal form must rise up in their place.

But these functional accounts seem to banish class struggle from the realm of the constitution of legal subjects. This however, is not quite the case. Firstly, capitalism is not an autonomous development whilst it does develop through its own internal logic it required a class to smash the old relations of production and being to accumulate. In this way the development of capitalism and by extension the legal form can be explicitly linked to politics during the transition from feudalism to capitalism (note here the notion of ‘bourgeois freedom’). The deeper political question is that raised by Rancière, the process whereby subaltern groups are interpellated as legal subject. A large part of this process will be ‘automatic’ and therefore legal, this is because most people become commodity proprietors and engage in commodity exchange.

However, it seems clear that certain super marginalised groups did not gain such a position automatically; one might here think of racial groups or gender groups. Here, there is more of an ideological-political struggle that is linked to the traditional Engelsian thought on law. In essence here we see people operating within the assumptions and concepts of the legal superstructure so as to point out its contradictory nature. In this way their political struggles can end up positing them as legal subjects. However, it must be remembered that this occurs within the context of commodity production. It is only because the legal form is so widespread that political struggle is able to lead to a legal subject. This is because ultimately ‘right-less’ people are in contradiction to the material structure of mature capitalism, even if political conjunctures make it easy to ignore and fight this tendency.

To be honest I'm not sure if I like what I've just written, but it's done now...

[1] Jacques Rancière, ‘Who is the Subject of the Rights of Man?’, South Atlantic Quarterly 103:2/3,Spring/Summer 2004, p.302

[2] ibid, p. 302

[3] ibid, p.303

[4] ibid, p.304

[5] ibid, p.304

[6] ibid, p.304

[7] Engels’ Letter to J Bloch, 1890 (MIA haven’t fully transcribed it!)

[8] ibid, p.305/6