"What's breaking into a bank compared with founding a bank?"
What might this Brechtian phrase say about the law? On the one hand we might read it as a simple critique of the way that the class element enters into it. So what we say is - here are two types of act that 'hurt' people. But - because of the class interest that gets expressed through the law - only the interests of the capitalists is protected. Whilst I would argue that critique is probably true (although it needs work obviously - how is the class interest expressed through the law? is this a necessary expression? etc.). In a way, my observation is linked to this. What I argue is that this 'class interest' is able to be expressed through the law because of its structure.
This is because the law seems to have real trouble encompassing structural or systemic violence. It is structured such that a legal result can only ever address individual acts and situations (through the medium of the legal judgment) not structures and systems. Indeed this is an issue I have addressed before. What is also interesting is the ideological function of this feature of the law. To some degree Susan Marks talks about this under the rubric of justificatory exceptionalism. Essentially, the law (and legal judgments) tend to take people's general grievances with the system and transform them into particular, resolvable problems. This is only going to be a short post, but an interesting (if rather long) illustration of this can be found in Marcuse’s One Dimensional Man, whilst he is referring to the problem of language, I think the same applies to law (not that I am suggesting some kind of connection between the two):
In investigating the walkers' complaints about walking conditions and wages, the researchers hit upon the fact that most of these complaints were formulated in statements which contained “vague, indefinite terms,” lacked the “objective reference” to “standards which are generally accepted,” and bad characteristics “essentially different horn the properties generally associated with common facts. In other words, the complaints were formulated in such general statements as “the washrooms are unsanitary,” "the job is dangerous,” “rates are too low.”
Guided by the principle of operational thinking, the researchers set out to translate or reformulate these statements in such a manner that their vague generality could be reduced to particular referents, terms designating the particular situation in which the complaint originated and thus picturing “accurately the conditions in the company.” The general form was dissolved into statements identifying the particular operations and conditions horn which the complaint was derived, and the complaint was taken care of by changing these particular operations and conditions.
For example, the statement “the washrooms are unsanitary” was translated into “on such and such occasion I went into this washroom, and the washbowl had some dirt in it.” Inquiries then ascertained that this was “largely due to the carelessness of same employees,” a campaign against throwing papers, spitting on the floor, and similar practices was instituted, and an attendant was assigned to constant duty in the washrooms. “It was in this war that many of the complaints were re-interpreted and used to effect improvements.”
Another example: a worker B makes the general statement that the piece rates on his job are too low. The interview reveals that “his wife is in the hospital and that he is worried about the doctor's bills he has incurred. In this case the latent content of the complaint consists of the fact that B's present earnings, due to his wife's illness, are insufficient to meet his current financial obligations.”
Such translation changes significantly the meaning of the actual proposition. The untranslated statement formulates a general condition in its generality ("wages are too low"). It goes beyond the particular condition in the particular factory and beyond the worker's particular situation. In this generality, and only in this generality, the statement expresses a sweeping indictment which takes the particular case as a manifestation of a universal state of affairs, and insinuates that the latter might not be changed by the improvement of the former.
Thus the untranslated statement established a concrete relation between the particular case and the whole of which it is a case – and this whole includes the conditions outside the respective job, outside the respective plant, outside the respective personal situation. This whole is eliminated in the translation, and it is this operation which makes the cure possible. The worker may not be aware of it, and for him his complaint may indeed have that particular and personal meaning which the translation brings out as its “latent content.” But then the language he uses asserts its objective validity against his consciousness – it expresses conditions that are, although they are not “for him.” The concreteness of the particular case which the translation achieves is the result of a series of abstractions from its real concreteness, which is in the universal character of the case.
It is a shame that Marcuse never considered the role of labour law in this process, but the particular structure of labour tribunals helps illustrate how his observations operate within the law. I am tempted also to link this with Lukacs position on the role of totality. If the revolutionary insight of Marxism lies in the perspective of totality, then it is quite interesting that law continually detolalises. Indeed, I would argue that understanding this is vitally important if we wish to make any consideration of law in revolutionary strategy. For whilst the law may be used to 'defend' people, it does not seem capable of effecting systemic change. In fact it may positively militate against such change.