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
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