Thinking about legal strategy

So I’ve been thinking a lot about legal strategy over the past few months, especially as I am working on an article that engages with China Miéville’s take on the question. My conclusion – at this moment – is that there is some definite but limited role for ‘legal struggle’ (here I don’t mean struggle that is within the law, but rather struggle over legality – e.g. we oppose the war in Iraq on the basis that it was illegal). But I also think legal struggle in this sense comes up against the limits of legal argument. Legal argument is – by its nature – individualistic and de-contextualising. This means that legal struggle cannot adequately address the systemic and structural causes of ‘illegal’ behaviour. Furthermore, if law is generated by capitalism, then doesn’t this type of legal struggle serve to legitimate capitalism? So insofar as there is a place for progressive legal practice (and I believe there is one) I think it has to be in concrete, practical struggles (often defending our actions). But this type of practice has to be aware of its limitations; indeed, one would think that what has to be done here is the continual admission that these actions are in no way adequate.

However, to this idea I think we can counterpose what I would call ‘Leninist optimism’, as Pashukanis argued, in relation to self-determination:

Lenin understood what his opponents failed to understand: that the “abstract”, “negative” demand of formal equal rights was, in a given historical conjuncture, simultaneously a revolutionary and revolutionizing slogan.

(Pashukanis, Lenin and the Problems of Law: 161)

Now, this passage – and the work it’s taken from – can be read in different ways. But the straightforward thing to note is the way that an abstract demand (i.e. legality) can be revolutionary. One can easily see this can be the case. In course of their concrete struggle progressive forces assert an abstract legal demand. This demand is able to rally others around it. Should this demand not be met, those who have rallied around it might be made to question the existing order, and even overthrow it. In this way what we can see is a case of legality against legality – with the ultimate aim – perhaps – using a legal argument to abolish the law.

Now, I am unsure about this. China Miéville has argued – persuasively – that there is nothing in my analysis that makes legality a necessary component of this. Why does the demand need to be a legal one? Can legal demands motivate people in a way that others cannot? As it happens, I do think that characterising something as illegal can galvanise people in a way that other appeals cannot (this is mostly anecdotal, a feeling as it were, but let’s just proceed). But if is the case, then why?

And here we reach a real problem.

Law only reaches full bloom, spreads it wings, saturates our social existence with the generalisation of commodity form – viz. the growth of capitalism. So the specific motivating power of legal argument originates from the ubiquity of capitalist social relations. So, in drawing on this motivation for revolutionary strategy, we end up strengthening them. Lukács is quite good on this (eventually I'm going to get round to re-reading History and Class Consciousness and make some posts on it, the book has quite a lot of interesting legal observations (uh oh bracket within a bracket!! - it's interesting how much juridical content is in a lot of Marxist stuff and how many Marxists have a legal background)):

Even in the very midst of the death throes of capitalism broad sections of the proletarian masses still feel that the state, the laws and the economy of the bourgeoisie are the only possible environment for them to exist in. In their eyes many improvements would be desirable (‘organisation of production’), but nevertheless it remains the ‘natural’ basis of society.

In order to overcome this it is necessary to see the law as nothing more than a ‘power factor’ (Lukács is right and wrong on this – we definitely have to move away from the fetishism of law but we shouldn’t neglect its internal, specific character):

Such tactics are necessary in order to complete the revolutionary self-education of the proletariat. For the proletariat can only be liberated from its dependence upon the life-forms created by capitalism when it has learnt to act without these life-forms inwardly influencing its actions.

Thus, in taking advantage of the motivating power of legality would we be maintaining people’s ‘dependence upon the life-forms created by capitalism’? If so, can we expect such a strategy to take us to a post-capitalist (and post-legal) future?