Monday, January 28, 2008

Judicial Diversity

This will be a short post, so my apologies to Phil but this was just something which caught my eye (and is a wonderful distraction from Allen Buchanan's book), anyway here teh Graun talks about the problem of diversity in judicial appointment. Although, I'm not entirely sure I think 'background' is that determining a factor in judicial decisions, it strikes me that the problem is deeper than just selection. The real problem here is that the 'pool' is really quite narrow. In my own (anecdotal experience) the problem goes back to professional training and university. In terms of the vocational training to be a barrister, well that's all hideously expensive, furthermore, the early years in a not-so-good chambers are hardly likely to be finacially lucrative. This means you either have to have a good financial support network, or you need funding. In order to get funding, it's pretty much the case that you have to be from Oxbridge. Now since Oxbridge is hardly the most diverse of institutions, it's no surprise that the Bar reflects this. In terms of becoming a solicitor (which of course is not the best route into the judiciary anyway) well again the vocational training is quite expensive, so the best bet is to get a training contract before undertaking it. But again - unfortunately - these are disproportionately given out the Oxbridge people, with all the problems that apply.

So it strikes me that any government really serious about a diverse judiciary needs to widen the pool, this basically needs to involved more state funding (or at least state-backed cheap loans) going to people who aren't able to get funding by other means. This is the only way to widen the pool of potential judges (short of nationalising Oxford and Cambridge, which of course has its appeal).

Sunday, January 27, 2008


And so once again the government has gone on a big terror offensive, and once again it seems to be an ill-conceived one. Here are a series of random thoughts on what I think about the idea of 42 days detention without charge. My first point to note is that this proposal represents a general trend towards the ‘infinite’ which is replicated in a lot of the countries which are participating in the war on terror. As its ‘high point’ this tendency is represented by Guantanamo, but I don’t think it’s an exaggeration to call this a moment in the same trend. So here are a few ideas about why 42 days detention (were it to become law) would prove anything but an exception.

Definition of Terrorism
As part readers of this blog will know, the way in which terrorism is defined in the United Kingdom has been a real bugbear of mine. The definition of terrorism which is operative in UK legislation is taken from the Terrorism Act 2000:

(1) In this Act “terrorism” means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

(a) “action” includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

So, to sum, an act is a terrorist one if involves serious violence to a person, or serious damage to a person and is done to ‘influence the public’ or to advance ‘a political, religious or ideological cause’. This is obviously a hugely broad definition which includes (as a possibility) pretty much every political grouping in the UK today (as they all advocate this to some degree). Presumably then, if one is suspected of planning violence towards people or property for a political end there is the possibility of being detained for 42 days without being charged.

Of course, in practice ‘terrorist’ will usually be taken to mean ‘Islamic terrorist’, but even then the wide-ranging nature of the definition can feasibly cover protest which ends up in intended property damage. Furthermore, there is no guarantee that this would not be extended past this ‘core’ of ‘terrorists’ (not that I think this core is acceptable), there is nothing in the wording which doesn’t mean this might extend broadly to a number of political groupings which we wouldn’t think of as ‘terrorists’. Having established the ‘infinite’ character of the ‘definition’ of terrorism, we go on to consider some other elements of the proposals. The Home Office has offered four examples when the power might become activated.

The foiling of a major plot
There are problems with this right off the bat. What is a ‘major’ plot? One which kills a number of people? One that damages a lot of property? But this of course raises another question how much is enough? Perhaps the proposed law will set a number of people that might be killed which we be sufficient to count as a ‘major’ operation. But this itself would be difficult, does anyone really want to make the type of moral judgment calls that say ‘only ten people could die, well that’s not enough’?

So it seems to me that even in the abstract a ‘major’ operation is one which is hard to judge. This is of course compounded by the fact that the 7/7 bombings would presumably be treated as a major operation. Now, whilst the bombings are obviously abhorrent the fact is that only 50 killed were people in them, if this is taken as a benchmark for a ‘major’ operation, then I would imagine it could extend to a good number of ‘potential’ terrorist operations. Linked to this of course is the fact that it is ultimately impossible to know in advance how major a terrorist operation is likely to be. This is one of the true problems with ‘pre-emptive’ detention, just like pre-emptive self-defence it has to act before the ‘attack’ has taken place, but it is not possible to know how serious it will be in advance. Compounding this is the fact that by definition there is an absence of evidence in these cases (hence the need for longer detention). What this all tends to mean is that it will be very difficult to determine a ‘major’ attack before it happens.

A complex individual case
It strikes me that by definition any case which the police will request an extension for is one which is ‘complex’. If the case was not complex enough to warrant 42-days detention then presumably the police would simply have charged the suspect. Bearing this in mind, I fail to see how – in the abstract – such a category could be particularly useful. However, it is probably the case that this would be part of an overall justification, but this of course brings exactly the same problems prior.

A major operation
I take it ‘operation’ refers here to the size of the police operation. Again, this strikes me as problematic for the reasons raised above. Presumably a major police operation is one which corresponds to the threat of a major terrorist attack. I question how it is that the ‘size’ of an operation can really be judged. So again, it seems of certain, possibly unlimited application.

An operation involving many countries
Many countries? One? Two? Three? Involving? How close of a link? All of which seems to belie the fact that apparently we are living in an age of ‘international terrorism’ with international terrorist networks etc. It strikes me then, that even if a threshold is established for what constitutes ‘international’ this will still be massively over-inclusive.

These brief considerations are only meant to argue one thing. This is that the apparent ‘exceptional circumstances’ that might be generative 42 days are entirely indeterminate, in that they don’t provide any real guidance for a decision-maker as to when it is that the power becomes active. In effect then, the power becomes ‘infinite’. This is of course a function of the ‘discourse’ on terrorism, which posits that terrorists are everywhere, and always a potential threat. But the point is that this threat is always unknowable in advance, therefore anyone is a potential candidate for intervention.

Of course, ultimately this doesn’t necessarily matter. I personally would argue that indeterminacy is a structural condition that is thrown up systematically by the contradictory nature of the legal form. Since the law is a form of social regulation that operates as between abstract individuals it constantly oscillates between ‘protecting the individual’ and ‘protecting the public’, these two imperatives basically mean that diverse outcomes can be justified. The point therefore is not what the ‘law’ says, but what the decision-maker does (a decidedly Schmittian point I know). So what we have to question is – bearing in mind the potentially infinite character of such provisions how will they be resolved?

Here, of course there are a plethora of inquiries we could make. Schmitt, for instance, at first resolved this is a decisionistic fashion. Thus, he tended to argue (in Political Theology) that this decision would ultimately read of the personal decision of the decision-maker. Later he realised this position was probably inadequate and moved towards what he called ‘concrete order’ thinking, whereby institutional priorities are what determines a decision (he advocates this position in On the Three Types of Juristic Thought which people tend to ignore). Then there are the American Realists, who tended to argue that economic factors were the prime determinant of decision-making. I tend to think that our inquiry into decision-making cuts across several lines. Firstly, we do have to understand that an individual (or group thereof) is making a decision. But this decision is informed by a number of factors, these are primarily economic, political and (dare I say it) ‘moral’, but these factors are articulated within an institutional matrix. With this in mind, I think we should take a look at the way in which the ‘decisions’ about 42 days will proceed:

A chief constable and the director of public prosecutions ask the Home Secretary to authorise the extension which remains in force for up to 60 days. She then tells Parliament within two days the 42-day rule is available to police.

A judge has to approve the holding of each suspect for more than 28 days and the terror powers watchdog overseas the case. Parliament gets a vote within 30 days of the law being activated - and if they object, the 42-day power is quashed. If they approve, the power remains in force for the full 60 days.

Parliament cannot quash the power at the outset. If police applied to use the power on day 27 of an arrest, and Parliament did not get an opportunity vote until two weeks later, then an individual would have been held for the full 42 days before MPs had been able to oppose the measure.

The first point to note is that there will always be a tendency for ‘public pressure’ about being ‘soft on terrorism’ to push decision-makers towards deferring to the police. The constant threat that they might be responsible for the next big terrorist attack is something that will be politically important to Ministers and MPs and morally important to Ministers, MPs and Judges. This is reinforced by my analysis earlier – that it feels particularly difficult to say this number of deaths would not be sufficient to warrant depriving someone of their ‘liberty’. Furthermore, there is the pretty much omnipresent discourse about ‘the police’ which permeates everything, our society has a tendency to venerate the police and everything they say and do, although there may currently be problems, it still seems a political taboo to question the veracity or accuracy of police statements.

It seems to me that we can pretty well rely on a Home Secretary to go with most of what the police say about threats etc. Aside from the general political pressure, it is clearly the case that the institutional position of the Home Office tends to push Home Secretaries towards authoritarianism, or at the very least listening to the police. Now whilst this may not be the case in respect of pay, I tend to think that in respect of ‘security’ the Home Secretary will always agree with the police.

I’d imagine that – to a large extent – most MPs would be the same. Here I think we have to draw a distinction between the abstract and the concrete. I think that it is quite possible MPs will oppose an abstract law, which makes it possible to detain people, especially on the basis that it is ‘not needed’ or is ‘hypothetical’. This is because they can claim to be in favour of liberty as against hypothetical problems etc. But, when they are faced with the Chief Constable telling them ‘if we don’t detain this person there is a possibility he will conduct a major terrorist attack, for which you will be responsible’, things may be slightly different. This is of course always compounded by the fact that the police are unable to give all the evidence they have a their disposal, for fear of giving away informants etc. Ultimately, it seems to me that the political cost of going against the police and then being proved wrong is much better with agreeing with them and detaining an innocent man.

And finally the judiciary. Well, I think it is probably a little bit more complex. Firstly, it is the case that judges – as they are not elected – are not subject to direct political pressure in the same way that politicians are. This being said, judges are still participants in the collective, communal life of the country, and so as such are subject to some of the same forces. Furthermore, although judges are not direct participants in the ‘democratic’ political process they are nonetheless a constituent part of our political system as a whole. As such, their position can be threatened or strengthened in given political conjunctures. One need only observe the mini-declaration of war by Lord Woolf a while ago, to understand that judges are just as ‘political’ as your average MP.

Secondly, people tend to invoke cases like the Belmarsh detainees case to show that the judiciary is either ‘soft on terrorism’ or ‘finding the right balance’. But of course this is problematic, especially if one actually examines the reasoning in that case. In the wake of 7/7 the House of Lords (with the exception of Lord Hoffman) acknowledged that there was a public emergency which threatened the life of the nation. This meant that the only question was whether the measures were proportionate or not. The majority concluded they were not because there was no rational connection between the means and ends, and because there was irrational discrimination. In theory both of these problems could have been overcome by locking up everybody up rather than just foreigners. This being said I haven’t read many of the recent cases on control orders, so I’m not entirely sure about this.

Ultimately, when it comes to the judiciary, I think that they are less likely to immediately lock people up. But I do tend to think that when faced with the stark opposition between ‘liberty’ and ‘security’ a judge may ultimately choose the latter. Simply because there is always the chance – no matter how small – that he will be ‘responsible’ for a terrorist attack. Putting someone in such a concrete situation does not – for me – seem conducive towards finding a balance.

In lieu of a conclusion
So what do we conclude here? I think the first point is that the particular shape of the ‘enemy’ in the ‘war on terror’ (and indeed its characterisation as a war) tends to push ‘law’ to its indeterminate limits. This ends up creating exceptions with infinite grasps. But of course a concrete decision has to be articulated within this context. And it strikes me that any concrete decision will be so agonising, that seems to me it will allow for an unchecked expansion of this power, I leave everyone with a quote by Žižek (on torture) which seems appropriate, if not entirely so:

If the choice is between Dershowitz’s liberal ‘honesty’ and old-fashioned ‘hypocrisy’, we’d be better off sticking with ‘hypocrisy’. I can well imagine that, in a particular situation, confronted with the proverbial ‘prisoner who knows’, whose words can save thousands, I might decide in favour of torture; however, even (or, rather, precisely) in a case such as this, it is absolutely crucial that one does not elevate this desperate choice into a universal principle: given the unavoidable and brutal urgency of the moment, one should simply do it. Only in this way, in the very prohibition against elevating what we have done into a universal principle, do we retain a sense of guilt, an awareness of the inadmissibility of what we have done.

Saturday, January 26, 2008


Picture the scene, a serial killer is on the loose, he's (for it is likely to be a he) is killing people very often. The police have suspects, but nothing firm. Every day this killer is on the loose more people are threatened, but the investigation is proving long and complex. Should we be able to lock these suspects up for 42 days? It's a hypothetical you say.

But maybe we should put in a provision in case it becomes unhypothetical?

Thursday, January 24, 2008

Jacqui Smith...

... is an idiot! Her case for 42-days detention?
The sorts of scenarios we have been talking about have been those where there might be a range of multiple plots. It might be those where we have got an extremely complex investigation, perhaps to get evidence internationally or from a large amount of computer disks.

So, the existence of this provision is premised on an entirely hypothetical situation? Pft. More on this when I can be bothered.

Friday, January 18, 2008

Marxism, Mao and politics

Over at Splintered Sunrise an interesting conversation was developing on Badiou, one to which I tried to make a contribution. Anyway some of the points that were made got me thinking a bit, so here I just want to say a few things. Central to this discussion was the question of why the Cultural Revolution might form an important event for some people on the left; my explanation as to why it might follows below, and segues into some more general considerations on Marxism.

My general contention here is that the Cultural Revolution and Maoism more generally, appealed to the late 1960s and 1970s left for a series of interconnected reasons. My key argument is the inadequacy of a Marxist theory of politics, and of the ‘superstructure’ more broadly conceived. In the period after the World War One and the 50s and 60s the state of Marxism – and certainly of ‘official’ Marxism – was pretty moribund. Despite a supposed adherence to Lenin, what we tended to see was a certain mechanical Marxism. In this schematic conception of history, what drove social change was contradictions between the forces of production and the relations of production. This conflict is ‘resolved’ by class struggle, which eventually replaces one mode of production with another.

So in this conception politics and political action is conceived of as being determined or as actualising economics. This type of Marxism doesn’t really have a theory of politics strictly conceived. But this approach brings numerous problems with it. The first problem for this conception is how to explain the relationship between economic and political action. How is it that class struggle can move (as Gramsci put it) from an economic-corporate phase, to a hegemonic phase? And this itself brings the problem from the other direction why is that the contradiction has not yet been actualised. This is of course the classic starting point for a lot of contemporary Marxist theorising – why in the advanced capitalist countries has the working class not taken power?

The answer to this question can’t be found purely in economistic considerations (e.g. the dull compulsion of economic relations) because to look at it this way basically forestalls social change forever (or until the next crisis). In response to this you get the (thankfully long dead) Trot line about a ‘crisis in leadership’. But even the crisis in leadership line is making a grasping attempt to go beyond certain economist lines and move to a more political explanation of the crisis. Basically, then, it seemed that the situations on the ground demanded an examination of the role of ‘superstructure’. But not just as a ‘reflection’ of the base, but in its capacity as decisive. Because the entire issue necessarily must move outside of the economy and onto political and cultural grounds.

And it is here that the Mao becomes central. Mao’s heterodox Marxism represented a fairly innovative intervention into this impasse. This can particularly be seen in Mao’s On Contradiction. Basically, Mao argues that any social totality is a complex of interacting contradictions, all of which contribute towards development and change. However, in every social totality there is a principal contradiction, which serves to give a specific character to all of the other contradictions:

There are many contradictions in the process of development of a complex thing, and one of them is necessarily the principal contradiction whose existence and development determine or influence the existence and development of the other contradictions. For instance, in capitalist society the two forces in contradiction, the proletariat and the bourgeoisie, form the principal contradiction. The other contradictions, such as those between the remnant feudal class and the bourgeoisie, between the peasant petty bourgeoisie and the bourgeoisie, between the proletariat and the peasant petty bourgeoisie, between the non-monopoly capitalists and the monopoly capitalists, between bourgeois democracy and bourgeois fascism, among the capitalist countries and between imperialism and the colonies, are all determined or influenced by this principal contradiction.

Such a position is a very interesting one, and we can find echoes of the argument in Althusser’s notion of a totality structured in dominance (and of course we would - because Mao's Marxism is one of the big influences on Althusser) and even in Lukács earlier discussion of the role of totality in Marxist thought. The point here is that one can immediately recognise Mao had constructed a theoretical edifice which might be able to bridge the impasse described above. Here we can see a way to articulate the primacy of the contradiction between the forces and relation of production; without having to rely on that for change. The point here is that as a principal contradiction it could shape political ‘contradictions’, even these contradictions became vital.

However, Mao goes further than this. He also argues that every contradiction has a principal and subordinate aspect. It is the principal aspect which will (eventually) supersede that subordinate aspect and so bring change. But further to this Mao argued that in a given struggle around a contradiction, things would develop to the point where what was the principal aspect could become the subordinate aspect and vice versa:

We often speak of "the new superseding the old". The supersession of the old by the new is a general, eternal and inviolable law of the universe. The transformation of one thing into another, through leaps of different forms in accordance with its essence and external conditions -- this is the process of the new superseding the old. In each thing there is contradiction between its new and its old aspects, and this gives rise to a series of struggles with many twists and turns. As a result of these struggles, the new aspect changes from being minor to being major and rises to predominance, while the old aspect changes from being major to being minor and gradually dies out. And the moment the new aspect gains dominance over the old, the old thing changes qualitatively into a new thing. It can thus be seen that the nature of a thing is mainly determined by the principal aspect of the contradiction, the aspect which has gained predominance. When the principal aspect which has gained predominance changes, the nature of a thing changes accordingly.

So the vision Mao here articulates is one which – in contrast to ‘official Marxism’ is a dynamic one; emphasising struggle. But the coup de grace, and what I would argue made Maoism so attractive to (particularly) the French left is the following passage:

Some people think that this is not true of certain contradictions. For instance, in the contradiction between the productive forces and the relations of production, the productive forces are the principal aspect ... in the contradiction between the economic base and the superstructure, the economic base is the principal aspect; and there is no change in their respective positions. This is the mechanical materialist conception, not the dialectical materialist conception. True, the productive forces, practice and the economic base generally play the principal and decisive role; whoever denies this is not a materialist. But it must also be admitted that in certain conditions, such aspects as the relations of production, theory and the superstructure in turn manifest themselves in the principal and decisive role. When it is impossible for the productive forces to develop without a change in the relations of production, then the change in the relations of production plays the principal and decisive role. The creation and advocacy of revolutionary theory plays the principal and decisive role in those times of which Lenin said, "Without revolutionary theory there can be no revolutionary movement.'' When a task, no matter which, has to be performed, but there is as yet no guiding line, method, plan or policy, the principal and decisive thing is to decide on a guiding line, method, plan or policy. When the superstructure (politics, culture, etc.) obstructs the development of the economic base, political and cultural changes become principal and decisive. Are we going against materialism when we say this? No. The reason is that while we recognize that in the general development of history the material determines the mental and social being determines social consciousness, we also -- and indeed must -- recognize the reaction of mental on material things, of social consciousness on social being and of the superstructure on the economic base. This does not go against materialism; on the contrary, it avoids mechanical materialism and firmly upholds dialectical materialism.

Obviously, this is long, but I think it basically helps to illustrate the attraction Maoism held for certain people. The whole point is Mao has seriously broken with ‘official’ Marxism, and has attempted to theorise the political. Although Mao presents this as somewhat limited, the implications of this passage (particularly from where we sit) are fairly wide-ranging. Key to my argument is the notion that:

When the superstructure (politics, culture, etc.) obstructs the development of the economic base, political and cultural changes become principal and decisive.

But the whole point – at least so far as Marxists were concerned with in the West – is that it is always the ‘superstructure’ which obstructs the development of the base. Because if we are talking about the standard economic conditions which make things ripe for revolution (in the schematic sense) – well they’ve been here for God only knows how long. So the allure of Mao is that for him politics and culture become central. It thus seems that – quite accidentally – Mao addressed the central concerns of the left in Western Europe, since he attempts to theorise the primacy of the political/cultural whilst remaining a materialist. No matter what people think of Mao (and obviously opinions are not high), this particular theoretical position seems interesting.

Now, with this in mind, we can make a few other considerations. Firstly, it might be argued that this position – which stresses the importance of conscious, political action is a ‘Leninist’ one. Well, yes, I’d agree with that entirely, and it’s certainly something that Lenin articulated rather well. But the point is that Leninism – especially in the time period in question – was associated with the ‘Marxism’ of the USSR, which – to all intents and purposes – had reverted back to the Marxism of the second international. Secondly, insofar as Leninism was taken up by the Trotskyist movement it was (1) not always that great and (2) not likely to be taken up by people inside of the official communist movement. That is why Maoism managed to sink its roots into France, I feel. The milieu from which these people came from was one in which official communism (in the form of the PCF) was all powerful – both politically and philosophically – for a time, Maoism seemed to represent an critique of official communism from within the official communist movement.

Another point to bear in mind is that very similar philosophical positions are put forward (in whatever way) by the early Lukács and Gramsci. It’s no coincidence that interest in these two only began to grow around this period – they address precisely the same issues which I’ve outlined above. But Lukács had the great misfortune of being alive at the time; reconciled with the official communist movement and he had of course basically renounced much of History and Class Consciousness. Gramsci, had not yet been translated (I don’t think), and again, he had the misfortune to be placed at the service of the PCI, which even before its explicit Eurocommunism had started moving in such a direction.

So, my first point about Mao is that he seemed to address some of the central problems of the time, in an innovative way. This was only reinforced by the fact that the events of the time seemed to suggest political action needed to be theorised. Because not only did the inaction of the working class need to be theorised – but also the action that had sprung up in the late 60s. So in particular, it proved quite difficult for ‘official’ Marxism to theorise les evenements of May ’68, and its response to what was a pretty huge moment was risible to say the least. This is also where the importance of the Cultural Revolution comes in. The Cultural Revolution appeared to be an actualisation of the theoretical positions outlined above. Here politics and culture were assuming the decisive role in transforming China. The emphasis on mass mobilisation obviously chimed with what was happening in ‘the West’ in a way that the experience of the Soviet Union could not.

It also strikes me that there are some other interesting threads that could be picked up (although I will decline to do so for now). Firstly, this concentration on the political (whilst maintaining that these struggles were ‘coloured’ by the principal contradiction) helped provide a way to explain struggle amongst groups not traditionally mobilised by the left (e.g. people who weren’t the manual working class). Secondly, Mao of necessity assumed a crucial role in the attempt to articulate a Marxist understanding of anti-colonialism and development. The inter-twining of the language of Marxism and decolonisation led to some very odd attempts to theorise these issues. Furthermore, most Marxists seemed (and pretty much still do) to accidentally condone mass death in the Third World – which is never a good way to make friends and influence people. Finally, of course, there are those who have turned to Schmitt in an attempt to theorise the political. The continued reference to Schmitt (something of which I myself am guilty of) perhaps shows us there is still a bit of a lack in the Marxist attempt to grapple with the political.

But I rather look forward to seeing Splintered post on diamat.

Saturday, January 12, 2008

Gramsci and law: some scattered observations

As those who have followed my blog from the beginning (do such people still exist?) may be aware that I have a great interest in Gramsci. I tend to think that Gramsci can be very relevant to law; provided his account is significantly reworked in line with my other theoretical interests. Whilst there have been a few attempts to theorise a Gramscian approach to the law[1], most of these approaches have attempted to apply Gramsci’s broader insights on hegemony to the law (and some of his attendant comments about the relationship between the two) but haven’t really looked at some of Gramsci’s other comments. So here is a passage I’ve always found interesting:

The concept of "legislator" must inevitably be identified with the concept of "politician". Since all men are "political beings", all are also legislators. But the distinctions will have to be made. "Legislator" has a precise juridical and official meaning - i.e. it means those persons who are empowered by the law to enact laws. But it can have other meanings too. Every man, in as much as he is active, i.e. living, contributes to modifying the social environment in which he develops (to modifying certain of its characteristics or to preserving others); in other words, he tends to establish “norms”, rules of living and of behaviour.[2]

In some ways this is just in line Gramsci’s usual ‘democratic’ conception of philosophy and politics[3]. However, we can begin to see some other interesting comments. Firstly, we might take this to be an interesting riposte as against a certain vulgar form of legal positivism. Although Gramsci seems to accept that law is ‘enacted’, he nonetheless problematises this, by rooting norm production in ‘everyday life’ (a sort of ‘law-from-below’ if you like). I personally would tend to read this in a less ‘subjectivist’ fashion than Gramsci seems to, so whilst I’d agree that ‘behaviour’ is what shapes the content of norms, I’d argue that this ‘behaviour’ itself has to be problematised and situated in a material context.

In general, it may be said that the distinction between ordinary men and others who are more specifically legislators is provided by the fact that this second group not only formulates directives which will become a norm of conduct for the others, but at the same time creates the instruments by means of which the directives themselves will be “imposed”, and by means of which it will verify their execution. Of this second group, the greatest legislative power belongs to the State personnel (elected and career officials), who have at their disposal the legal coercive powers of the State. But this does not mean that the leaders of “private” organisms and organisms do not have coercive sanctions at their disposal too, ranging even up to the death penalty. The maximum of legislative capacity that can be inferred when a perfect formulation of directives is matched by a perfect arrangement of the organisms of execution and verification, and by a perfect preparation of the “spontaneous” consent of the masses who must “live” those directives, modifying their own habits, their own will, their own convictions to conform with those directives and with the objectives which they propose to achieve.[4]

Gramsci’s conception here seems to be of a ‘continuum’ of types of ‘norm-creating behaviour’. Essentially it seems to be the case that law is that type of norm positing behaviour which is furthest reaching and endowed with the greatest set of ‘instruments’ for compliance. But Gramsci further notes that the ‘spontaneous’ consent of the masses is essential to the law here. So this introduces a further complication, ‘law’ has to secure the ‘consent’ of those it governs. If it has to secure their ‘consent’ does this mean that it has to in some way reflect their social expectations? Could this link back to Gramsci’s original point? Could we argue that ‘ordinary people’ shape legislative content precisely because said content must secure their consent. This inkling of an idea is further strengthened by the rest of Gramsci’s analysis:

If everyone is a legislator in the broadest sense of the concept, he continues to be a legislator even if he accepts directives from others – if, as he carries them out, he makes certain that others are carrying them out too; if, having understood their spirit, he propagates them as though making them into rules specifically applicable to limited and definite zones of living.[5]

Gramsci acknowledges that one may remain a legislator even whilst receiving ‘directives’ from others. This seems to bring into stark relief another question why do ‘legislators’ act as they do. Although we posed this question in respect of the ‘broad’ legislators, it remains pertinent in respect of juridical legislators too. If it is true that legislators themselves are immersed in a complex web of ‘others’ directives, is it not the case that they too are influenced, and could not these directives influence the directives of others. One is here reminded of Engels’ observations:

In the second place, however, history is made in such a way that the final result always arises from conflicts between many individual wills, of which each in turn has been made what it is by a host of particular conditions of life. Thus there are innumerable intersecting force, an infinite series of parallelograms of forces which give rise to one resultant — the historical event. This may again itself be viewed as the product of a power which works as a whole unconsciously and without volition. For what each individual wills is obstructed by everyone else, and what emerges is something that no one willed. Thus history has proceeded hitherto in the manner of a natural process and is essentially subject to the same laws of motion. But from the fact that the wills of individuals — each of whom desires what he is impelled to by his physical constitution and external, in the last resort economic, circumstances (either his own personal circumstances or those of society in general) — do not attain what they want, but are merged into an aggregate mean, a common resultant, it must not be concluded that they are equal to zero. On the contrary, each contributes to the resultant and is to this extent included in it.[6]

Once we link this perspective with that of Marx and Engels in the German Ideology, we can see where Gramsci is both right and wrong. Marx and Engels allege that the idea that law is a product of ‘will’ is a juridical illusion. Instead Marx and Engels hold that the content of the law is posited through the development of social relations, which is a perspective will understands that individual ‘wills’ are mediated, shaped and articulated within a given material context.

I would argue that Gramsci cannot reach the same conclusion as Marx and Engels (and indeed many other Marxist legal theorists) precisely because he perceives law as a directive. If law is a directive, then it must be directed by someone, through their will. If Gramsci were instead to see law as a specific social form, he would not need to have recourse to this position. Instead law can be seen as colouring, but also articulating social relationships, which need to be expressed within that form. This would not exclude ‘violence’ from his analysis, but it would allow him to understand that legal violence is a specific form of violence. Furthermore, it would allow him to develop his democratic perspective on the content of the law. Precisely because a legal form embodies social relations, it cannot simply be seen as the ‘will’ of the state. Furthermore, since social relations in capitalist society are contradictory and involve conflict, the law necessarily mediates these conflicts, which perhaps helps us to explain ‘spontaneous consent’ to the law.

Furthermore, these jurisprudential misconceptions about the law might also colour Gramscian uses of hegemony to explain ‘legal struggle’. If law is understood as a form (rather than just a directive) and a socially determined form at that, then ‘legal hegemony’ takes on a new meaning Traditional approaches have stressed that counter-hegemonic struggles can be engaged in through the law. If law is just a ‘directive’ backed up with varying degrees of force then it is a neutral instrument that can be used by anyone who wants to become hegemonic. But if law is a socially determined form, then it is linked to particular social relations. If we understand law as being rooted in commodity exchange, then it no longer becomes a ‘neutral’ instrument through which hegemony is gained but is in fact a hegemonic form. Any struggle which remains within such a form would ultimately remain within the coordinates of bourgeois hegemony, and be limited as such. This alerts us to a fact that is sometimes missed by Gramscians, hegemony is not just limited to substance, it can embrace form as well, in fact it might be argued that the hegemony of form is much more powerful. This is because if the hegemony of form is ultimately maintained, then progressive elements will have the illusion of success, even while remaining trapped inside bourgeois categories. To some degree I think Gramsci was grasping towards this approach but never quite found it. But until we resolve Gramsci’s jurisprudential issues, or situate him within a more complex framework, he may be more harm than good.[7]

[1] See, e.g. Duncan Kennedy, Claire Cutler “Gramsci, Law, and the Culture of Global Capitalism.” Critical Review of International Social and Political Philosophy, vol. 8, no. 4 (2005): 527-42 and of course Alan Hunt’s previous project was a soi disant Gramscian one

[2] Antonio Gramsci, Selections From the Prison Notebooks (2003) London: Lawrence and Wishart at p.265

[3] See, e.g. ibid p.323

[4] Ibid p.266

[5] Ibid, p.266

[7] Claire Cutler’s work (op cit) is useful here, insofar as she attempts to use Kennedy’s commodity-form analysis of the law

Thursday, January 10, 2008

Thoughts on Finnis

What’s quite weird about this blog is that when it went on ‘hiatus’, I was just about to start my Jurisprudence course. This meant that all of my wonderful observations on Anglo-American legal theory (to which the Cambridge course is rather sadly confined) didn’t get made. That being said I’m still here doing my LL.M., and surprisingly enough I’m doing Jurisprudence again! Strangely enough, one of my favourite books I studied in the course was that of the (Catholic) theorist John Finnis and his book Natural Law and Natural Rights[1]. What I really like about Finnis is the way that he problematises certain positivist assumptions about legal theory as well as their substantive conclusions.

One of the key assumptions of positivist legal theory is that what they are doing is a value-free exercise. Central to this is the notion that there is no ‘necessary’ connection between law and morality. Furthermore, this seems to manifest itself in a concern for the autonomy of legal theory (from moral theory but also from other theoretical frameworks). But Finnis notes that right from the outset this is simply not tenable, his point here is a very simple one, when we look at a social institution such as law there is a wealth of ‘factual’, historical data upon which we can draw. The question is how do we form ‘concepts’ from this mass of data. How and why do we choose to select some of these element and rate them as more important than other elements.[2] In some ways this mirrors Pashukanis’ position on legal theory – in order to find a ‘concept’ of law we need to find something which differentiates it as a social phenomenon.[3]

Finnis notes that although Hart may not make explicit reference to such a position, he nonetheless seems to succumb to it:

Hart’s description (‘concept’) of law is built up by appealing, again and again, to the practical point of the components of the concept. Law is to be described in terms of rules for the guidance of officials and citizens alike, not merely as a prediction of what officials will do. A legal system is a system in which ‘secondary’ rules have emerged in order to remedy the defects of a pre-legal regime comprising only ‘primary rules’. Law must have a minimum content of primary rules and sanctions in order to ensure the survival of the society or its members and to give them practical reason for compliance with it.[4]

Evidence for this can be found in Hart’s discussion of the ‘minimum content of natural law’[5] (for which there really is very little need) and his dismissal of Kelsen’s project as not capturing the ‘function’ of criminal law.[6] In place of such a theory Finnis suggests that in order to understand a social phenomenon such as law if we understand the ‘objective’ of the practice from the viewpoint of its participants:

A social science, such as analytical or sociological jurisprudence, seeks to describe, analyse, and explain some object or subject-matter. This object is constituted by human actions, practices, habits, dispositions and by human discourse...[T]he actions, practices, etc., can be fully understood only by understanding their point, that is to say their significance or importance, as conceived by the people who performed them, engaged in them etc.[7]

Therefore, in order to find the correct ‘distinguishing’ features of a social practice we need to find a ‘central case’ of the practice and a viewpoint to adopt.[8] Analytical positivism has largely opted to adopt an ‘internal point of view’ – something more than someone who acquiesces to the law purely out of fear – but Finnis argues this should be taken further. Instead, the viewpoint that must be taken is that of the ‘good’, ‘moral’ or ‘practicably reasonable’ man[9], which of course means that moral considerations come into play in the very selection of what features make a ‘concept’ of law.

There have been a number of responses to this. The standard legal positivist line on this is put forward by Leiter[10] and Kramer[11]. The basic argument goes something along the lines that we don’t need to use moral values to select pertinent features, instead we can use values like clarity, explanatory power etc. I don’t particularly like this response, as I don’t really think you can really select significant features. I think the firmer objection is simply to say that you only need to appeal to notions of ‘social function’ or human behaviour, which I don’t think we have to call ‘moral’. But actually, I think it has to go further, and this is where Pashukanis comes especially in handy. As any regular readers of my blog will know (chortle!) one of Pashukanis’ key observations is that ‘law’ has to be distinguished merely from ‘regulation’:

Comrade Stuchka, from our point of view, correctly identified the problem of law as a problem of a social relationship. But instead of beginning to search for the specific social objectivity of the relationship, he returned to the usual and formal definition‑although a definition now influenced by class characteristics. In the general formula given by Stuchka, law figures not as a specific social relationship but, as with all relationships in general, as a system of relations which corresponds to the interests of the ruling class and which protects it with organized force. Accordingly, within these class boundaries, law as a relationship is indistinguishable from social relations in general, and Comrade Stuchka is therefore not in a position to answer Professor Reisner's venomous question: how do social relationships become legal institutions, or how is law converted into itself?[12]

So, in order to ‘find’ a ‘concept’ of law, it is not enough to merely look at law’s function of social regulation. Therefore, Pashukanis – quite correctly argues – that we have to go further. We have to say that law is a specific type of social regulation. This notion of a specific type leads us onto the notion of law being a specific form or character assumed by social regulation:

The situation is no different with the second apparent tautology: law regulates social relationships. For if we exclude a certain anthropomorphism inherent in this formula, then it is reduced to the following proposition: under certain conditions the regulation of social relationships assumes a legal character. Such a formulation is undoubtedly more correct and, most importantly, more historical.[13]

But, once we talk about law being a specific type of regulation, we need to understand what the specific form of regulation is. It is perhaps here that Finnis attempts to spring his trap – surely this must be where we make a moral appeal. Well, I would say no. Instead I would argue with Pashukanis that we need to understand what types of social relationships generate legal regulation, and this requires a broader historical and theoretical approach. We have to situate the emergence of the legal form in its material and historical context. If we can find sufficient historical and social connections then we will be able to select significant features for our legal form.

Pashukanis argues that there is a historical connection between the commodity form and legal form. Thus, when disputes arise within the commodity-form, a form of social regulation has to arise to regulate such disputes. But since commodity owners are formally equal, abstract individuals this regulation must recognise these facts. Hence law is a form of social regulation between abstract individuals – this is the same conclusion that Finnis comes to (although he argues it morally – individual, autonomous life plans and all that jazz[14]), without resorting to the same form of moral argument. I would argue that Finnis’ approach might come unstuck for a number of reasons. Firstly, it doesn’t answer the question of why a form of regulation arises to serve a moral purpose. Secondly, his reliance of ‘human goods’ tends to ignore where these good have come from. If it is the case that they are a priori then law (as he describes it) would have always existed – it didn’t. If they come about through human practice (and Nigel Simmonds makes an excellent argument then they have), then this surely commits Finnis to the same sociological inquiry Pashukanis makes.

Thus, I would agree with Finnis to an extent. Clearly our formation of ‘concepts’ cannot take place in an isolated vacuum. But, neither – does it seem – do our guiding ‘values’ in this respect have to be moral. Pashukanis noted of economics that ‘[e]very economic theory worthy of the name must have its basis in some sociological conception’[15], I think this holds good for legal theory too – a sociological conception is what gives shape to the categories of analysis. But I would go further, and argue that any theory of necessity makes implicit sociological claims, precisely because of the way that concepts form. This is why the Marxist approach is so useful, because it honestly and openly makes it historical claims, and understands that the presuppositions of its concepts are not historically fixed.

[1] 2005, Oxford: Clarendon Press

[2] Ibid, p.4

[3] General Theory of Law and Marxism, p.62

[4] Finnis, op cit, p.7

[5] Hart, The Concept of Law, 1994, Oxford University Press, p.193-200

[6] Ibid, p.39

[7] Finnis, op cit., p.3

[8] Ibid, p.9-18

[9] Ibid., p.16

[10] Leiter, Beyond the Hart Dworkin Debate, (2003) 48 American Journal of Jurisprudence 17

[11] Kramer, In Defence of Legal Positivism, 1999, Oxford: Clarendon Press

[12] Pashukanis, Selected Works, p.62

[13] Ibid, p.58

[14] Finnis, op cit., p.59-134

[15] Pashukanis, op cit, p.244

Wednesday, January 09, 2008


So in fact my triumphant return was somewhat less of both than I imagined it would be (it was not particularly triumphant and the rumours of a return were greatly exaggerated) that being said I think I'll make a conscious effort to post a bit more on both of my homes. Anyway, what I think I'll try to do now is just to post the occasional little tidbit and thought, in the hope that I can once again garner some readers. I was moved to post by an interesting article today, by Frederic Megret. The article was written in 2002 and is entitled 'War? Legal Semantics and the Move to Violence'. The article is a somewhat prescient account of how Megret thought the use of the term 'war' would affect the US global strategy.

Megret's starting contention is that although the term 'war' may not be used in its technical legal sense it nonetheless has implications:

If one appreciates the power that is in words, the fact is that, for all intents and purposes, ‘war’ as a word is likely to influence legal debate on the use of force – and statesmen know this better than any. In view of the previous care taken not to use the ‘W’ word, one cannot help thinking that there is more than simply a quantitative difference between the loosely and variously labelled skirmishes of the past, and the embracing of a word that belongs more to history books than to legal ones.

This starting point is a useful one, insofar as it manages to strike a good position between ignoring the legal implications altogether and making taking a legally imperialistic view, whereby particularly actions are saturated with 'legality'. Megret's substantive argument begins with the de rigeur reference to Schmitt's 'Concept of the Political'. Thus, in the aftermath of the 9/11 attack there was a traumatic gap owing to their lack of an explicit 'author' (p.6); this gap was fulfilled by the typical act of 'enemy positing'; which is - for Schmitt - the ultimate function of the sovereign is to designate the friend enemy distinction (which leads to war, which leads to the exception). So the response to the 9/11 attacks internally is a reassertion of sovereign power (and the political order), Megret's inquiry is how this will be manifested externally.

The first, vitally important, point to note here is that Schmitt typically talked about his enemy as the 'public enemy' (Concept of the Political, page 28) viz. the state, but of course the response to terrorism is directed against terrorist 'networks' not states, states are only an incidental target here (or so the reasoning goes). These Schmittian presuppositions are mirrored in international law concerning self-defence, the central thrust of his article is how this dynamic plays out.

It is worth briefly noting here some of the basic principles of self-defence in international law. Essentially, self-defence is activiated when one state makes an armed attacked upon another state; the reponse to this armed attack must be both necessary and proportionate. Whilst we are all willing to accept that there has been an armed attacked, the problem of necessity and proportionality causes a problem. Whilst this clearly includes force used to repel armed attacks, responses to such attacks - might often look like 'illegal' armed reprisals. In response to this there are two routes:

  • Firstly, one can argue that self-defence includes the use of force to pre-empt an armed attack. Whilst it is clear that self-defence has always included force used against an imminent threat, this argument has to be much broader. It is not usually possible to know if a threat is imminent or not (since it is carried out by unpredictable terrorist networks), what must therefore be assumed is that, whilst terrorists exist, there is always an 'imminent' threat, and so the use of force is always on the agenda.
  • Secondly (and linked to the above point) one can characterise the 'war' on terror as continuous, one which began with the earlier terrorist attacks and continues to this day. Again the result of this is that any 'self-defence' can be continuously exercised.
Both of these outcomes lead to the same result, that self-defence loses the 'time restraint', meaning there is no time limit to its exercise. The second problem with the self-defence rationale, is that self-defence can only be exercised against states. This is true both factually and legally. Factually, because terrorists always reside in an area which is under the jurisdiction of some other state, therefore any attack on 'terrorists' is by consequence an attack on some other state's territory. Legally, this is so because any 'armed attack' to which a state is entitled to respond must be in some way attributable to another state.

This problem of imputing the behaviour of non-state actors, to states becomes crucial in the 'war on terror'. There are a number of ways in which responsibility can be imputed in international law, I don't intend to go into them here, but we can say a few things. Firstly, harbouring people explicitly isn't a way of incurring international responsibility, it's a breach of a direct obligation under the Friendly Relations Declaration, but it doesn't mean their conduct becomes your own. Secondly, 'control' and 'endorsement' are modes of imputing responsibility, but there have been few instances of 'terrorist supporting' regimes having active control (particularly over Al-Qaeda) or overtly endorsing such attacks. Finally, supplying terrorists whilst again a direct breach of international obligations it only imputes responsibility if there is direct control (something the US has often used to its advantage).

In order to actualise its 'war' policy, the US has been forced to argue that harbouring, supplying or even being lax on terrorists is sufficient to incur responsibility on the part of a state; as Megret notes:
But if a right to self-defence were exercisable on the basis of half-disclosed evidence against any country that had at one time or other been lax on ‘terrorism’ (assuming, of course, that one could agree on a definition of terrorism), it is not difficult to see how one might be confronted with a war that is not only infinite in time, but also risks being infinite in space, extending potentially to all corners of the earth.
What Megret therefore predicted was that the language of 'war' means that any 'war' on terror necessarily implies violence unlimited by time or space. To return to the Schmittian theme the exception would become the norm. He saw this reflected in the usage of the terms 'Infinite Justice' and 'Enduring Freedom'. This prediction remains, to this day, strikingly accurate and penetrating. Furthermore, as Ranciere noted the effects of this become dialectical. What starts off as a response to stabilise the internal order (as reflected in civil liberties etc.) is pushed into the external sphere (as reflected in war), rebounds back into the internal sphere, the infinite exception in the shape of war becomes the infinite exception in respect of internal political life.