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’. 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”, the important thing to note here is ‘enterprise’. This is critique worthy, and I’ll go more in-depth later.
Friday, June 30, 2006
Tuesday, June 27, 2006
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’). 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’.
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’, and therefore ‘it is only under capitalism that the notion of the moral and legal duty can reach its fullest development’. 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.
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’. 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.
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’’. 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, 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".
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 – 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’. 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.
 (1949) 47 Michigan Law Review 1157
 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
 ibid p.24
 ibid p.26
 ibid p.26
Pashukanis (1978), General Theory of Law and Marxism, Ink Links at p.39
 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
 Although he later moves back towards the position of law qua rules
 Fuller (1964), op cit p.26
 Chris Arthur’s Introduction to the Ink Links edition of the General Theory at p.23