Principled opportunism and natural law jurisprudence

It’s amazing how difficult it can be to make time for blogging. I’ve had a lot on, and frankly sometimes all I want to do after actually doing that stuff is … well … not very much. Hopefully I’ll free a little time up though (although frankly I seem to make this promise every time I make a post). Anyway, I want to finish off my thoughts on Schmitt, but first I’d talk a little bit about something that I’ve been thinking about for a while – namely the relationship between bourgeois natural law jurisprudence, and principled opportunism. This might seem a bit of an odd thing to do, but I actually think that the comparison can be theoretically productive, and helps us see what is useful for us in natural law jurisprudence.

So basically, what I want to argue is that principled opportunism (and the Marxist theoretical approach from which it derives), shares some similar presuppositions to natural law jurisprudence, but from these positions comes to a diametrically opposed practical/political standpoint. Hopefully what this can do is help us grasp some of the really interesting things about natural law jurisprudence (especially some of the more recent stuff) and further illuminate what principled opportunism might mean.

To be brief. Natural law jurisprudence tends to approach law as a specific form of social regulation, with its own identity and dynamics. Generally, natural law jurisprudence sees law as a form of regulation in which abstract, formal equality inheres. The next move, is to tie this social form to some kind of form of life. In Finnis, this form of life is one in which individuals are able to pursue diverse life paths (and thus their own ways of engaging in ‘objective goods’); in Simmonds, the form of law grants individuals a certain degree of ‘distance’; no matter how onerous the burden of law’s content, ones dittoes are not dependent on the arbitrary will of a sovereign, since this is always mediated through abstract, prospective rules that treat individuals as formally equal. In sum (and to be somewhat vulgar), these theories link the form of law with a form of life in which abstract individuals are able to pursue their own projects, viz. an idealised form of liberal capitalism (Simmonds in particular is a bit more complicated than this, but my general point is that law is tied to what one might call ‘liberty’).

The next step in this chain of reasoning is particularly interesting. Essentially, once law is tied to a form of life, this form of life is morally evaluated. Both Simmonds and Finnis (and to some degree one can include Fuller, Aquinas, Locke and even Hobbes in this) argue that this form of life is intrinsically morally valuable, inasmuch as it enables individuals to pursue their interests at some degree of distance from other individuals (etc.). In this respect, the form of law itself is intrinsically morally value, given that it is productive of abstract individual liberty. The brilliance of this move comes when it is juxtaposed to the problem of unjust content.

Essentially, given that the form of law is systemically morally good, the moral value of the legal form exists even when it expresses immoral content. For Simmonds this is because there is still a ‘distance’ between the rulers and the rules and for Finnis, this is because the form of law is supportive of a system of individual liberty. This gives rise to what Finnis calls a ‘collateral obligation’ to obey the law. Essentially, when one decides up whether or not to obey the law, the justice or injustice of its content is not the only factor to be taken into account, this has to be weighed against the intrinsic moral value of the legal form (which is produced by/produces an intrinsically moral form of life). Thus, the form of law is valuable, even while the content is variable. It is a case of form asserted against content.

The obvious interesting point from my perspective is the way in which the natural law approach dovetails with that of Pashukanis. Thus, Pashukanis identifies law with a specific form and ties it with a specific form of social life; which – in a less idealised form – is the same of that the natural law jurisprudes, capitalism. However, there is of course a crucial difference in these approaches, which Nigel Simmonds (who has made extensive and fascinating excursions into the Marxist tradition) sums up quite nicely (‘Between Positivism and Idealism’, (1991) 50 Cambridge Law Journal 308 :

The conservative view of law that I am defending has much in common with Marxism. Yet if differs from Marxism in the evaluation that it makes of law.
p.323

The crucial difference in the Marxist and natural law accounts of the legal form is how they evaluate law and the form of social life it is tied to. Obviously, Marxists are wont to evaluate capitalism of being composed of relations of exploitation and domination, and as a destructive and ultimately (hopefully!) transient phase of human life. I think the crucial move made by Marxists in this respect (and I have elaborated on it more here and here) is that the ‘form’ of capitalism free exchange is structurally tied up with a certain content; it’s not just a case then of the liberal form of capitalism being occasionally confronted with some nasty stuff; but rather that this form systematically throws up problems owing to the realisation of surplus value. Thus, domination, exploitation, class struggles etc. are always produced by the formal equality that characterises capitalism. Chris Arthur puts it rather excellently (in the introduction to the Ink Links Law and Marxism: A General Theory:

From a dialectical point of view a form is the form of its content, and one may be alarmed at the outset if one imagines that Pashukanis proposes to write a treatise on legal forms in abstraction from content. However, this would be a misunderstanding. In characterising law as a bourgeois form he clearly is relating law to a definition material content – the social relations founded on commodity exchange.
p.29

Thus, on this we can reverse the natural law position. The form of law is not something intrinsically valuable, but (if you’ll allow me) quite the contrary, the form embeds relations of exploitation and domination. And this brings us to principled opportunism, and its complete opposition to the collateral obligation. There, the form of law is invoked against unjust content; thus in spite of its content, the form may compel obedience. But in principled in opportunism the content of law is invoked against the ‘unjust’ (for want of a better word) form, and content may compel obedience (or more likely invocation), in spite of the form. In the collateral obligation, law is in principle valuable, in principled opportunism law is ‘in principle’ not, and as such should never be invoked per se.

Critical legal theory and cognitive dissonance

Sorry I haven’t updated in a while, but I really feel like I’ve been struck by the curse of bloggers’ block – I literally just couldn’t think of anything interesting to say. I’ve also been trying to read through Arendt’s the Human Condition, which although good, is one of those books that contains an important(ish) observation on every page, and so has to be read fairly closely.

But anyway, I was perusing my RSS feeds when I stumbled upon this. To my horror, as soon as I clicked on the link (and before I even read it) I was going through in my head all of the – I think – legally acceptable arguments Israel could use to justify its assault on Gaza. I then thought about it and realised I’d been doing this a hell of a lot recently. The reason this comes about is obviously for two reasons (both of which come from being a ‘critical legal theorist' – can I count myself as one of those yet?) – firstly, I subscribe to (and defend) the indeterminacy thesis and secondly, I argue that – to some degree – imperial interests are structurally embedded in international law.

Contra this position, there are those who argue that when certain imperialist actions are ‘illegal’ and/or that any legal argument deployed in defence of these actions is just a ‘legal smokescreen’ etc. In order to defend my position against such people I am forced to go through the legal justifications for what I consider barbarous actions, and since my focus has recently been on us ‘taking law seriously’ as an important and ever-present factor in imperial action whenever I see one of these actions I left justifying it in my own head.

But why am I horrified? Surely if I think that legality is – at least in the last instance – rooted in relationships of exploitation and domination and frequently expresses such relations directly in its content I shouldn’t mind that I’m accepting legal justifications for imperial action?

On the one hand, perhaps my reaction shows something of the pervasive power of the legal form in bourgeois society. Thus, even though I rationally ‘know’ that invoking legal arguments to ‘justify’ an act is not necessary endorsing said act. Even though I ‘know’ that the progressive content of a law is always contingent, whereas the form of law is necessarily related to a system of social relations of which I disapprove (obviously too weak a word), I still ‘feel’ the power of the words ‘legal’ and ‘illegal’. In the General Theory Pashukanis says some very suggest (and then remain suggestive, because they are very under-theorised) stuff about the relationship between law, morality, commodity production and (I would infer) personality more generally:

People must relate to each other as independent and equal personalities in order for the products of human labour to be related to each other as values … In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third, man as an egoistic economic subject. All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged. If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.
p.101

On this basis he concludes that ‘the concept of the moral or equal personality is an ideological formation’ (p.102) generated by relationships of commodity production. This can be quite nicely connection with Althusserian notions of interpellation, whereby the function of ideology is to interpellate individuals as subjects; thus law interpellates subjects as rights-holders and concomitantly as citizens, as equal personalities. This close link between equal personality, commodity exchange and the law manifest itself as a particular attitude towards the law. Whilst we may not know the particular contents of the law, the link between subjectivity and the legal form manifests itself as a particular degree of respect towards the general categories of legal and illegal (which are of course particular contents), as Kinsey (1978) (who I wish everyone would read) puts it:

As such it is necessary not to conflate morality and legality. As we have seen the individual, in practice, need have no knowledge of the specific legal norms which regulate his social activity. Indeed the “ordinary” man cannot know the law in all its detail for then he would be no ordinary man at all but a “lawyer”. On the other hand however the law must know the ordinary man and the conditions of his (moral) existence. The law constitutes the ordinary man in the abstract as the “reasonable man”, the “man on the Clapham omnibus”. It is in that sense that the law and juridical/positive morality together specify historically the mode in which the juridical relation is realised in a particular social formation.
p.219

We are always and already subjects constituted – at least in part – by the legal form. As such, perhaps my uneasiness stems from the fact that – notwithstanding my intellectual/theoretical analysis of the legal form – I am still a subject caught up in and constituted by ideology.

Of course, there’s another possibility, linked to the above. Perhaps I have exaggerated the pervasiveness of legality (I don’t think I have). As a subject I haven’t just been formed by general social processes, I’m also a product of an Anglo-American legal education. Again, there are some very interesting things that can be said about the ideological process bound up in legal education. Again what is important here is not necessarily the ‘learning’ of a particular number of norms (the content of the law). What is important instead is the manner in which the law is imparted, the ‘character’ of studies. Some useful observations here can be found on Simmonds (1985) take on Pashukanis’ take on the relationship between legal theory and the legal form:

[I]t is possible to argue that juridical theories are actually produced by the law itself. It might be possible to have a society where rules were established and obeyed for reasons of convenience, changed in an ad hoc manner when seemed desirable, and regarded generally as tools of exclusively utilitarian significance. Such a society would not possess a legal system of the type which interests Pashukanis, or of the type of which we are familiar. The legal order of a liberal, or bourgeois, society is thought of as a more or less consistent and coherent body of rights. Even if the law is thought of in terms of rules, the rules are assumed to be coherent. Contradictions between valid rules are regarded as impossible in principle, and a major task of juristic activity is the dissolution of any apparent contradictions … [I]t can be argued that the notion of the subject as an immobile bearer of rights is itself linked to the presupposition of consistency and coherence within the law … Bourgeois law contains within itself … a continuing pressure for increased coherence … This pressure for increased coherence means that bourgeois law produces juristic theory as fire produces smoke. The search for coherence and consistency at some point reaches a level of abstraction where the enterprise comes to be regarded as “legal theory” rather than “legal doctrine”.
p.137

Not sure I needed to use the whole quote, but I quite like the idea that legal theory is produced by the legal form. I’d want to extent this, the idea of law as a systematic, seamless enterprise is produced in legal education (and it is rather hard to disrupt), even as legal practice seems to contradict this assumption. More than this, one thing we always got told about our legal education was that it was not just concerned with us learning rules, but that we were being taught to ‘think like lawyers’ – this terrifying abstraction perhaps does something to explain my instinctive attraction to ‘legality’ (as Simmonds points out this concern with abstraction helps us see the link between law and liberalism and I think law school produces liberal of a certain-type).

Finally, and this is the explanation I prefer (since it makes me ‘above’ ideology), perhaps my problem is that even if I am relatively unaffected by this legal-fetishism, I am aware that other people aren’t. So, whilst I may be perfectly comfortable with my equation of the legal form and capitalism and on the contingency of progressive nature of legal argument, I know that in characterising something as ‘legal’ or at least justified by convincing legal arguments (which for me are the same thing) this will carry sufficient legitimating power with most people that I am – in some sense – contributing to the legitimation of actions I oppose. Moreover, I am potentially cutting myself off from a fruitful method of opposing such action.

So, what to do with this? At this point I think it’s quite useful to Susan Marks’ (2007) review of Between Equal Rights. In 2003 Marks participated in a collective letter to the Guardian which criticised the Iraq war as ‘illegal’, in Between Equal Rights China Miéville criticised this letter, noting that it seemed to repudiate the idea of indeterminacy and made it difficult to criticise actions which fell firmly within international law. Indeed, as Marks herself notes, it made it particularly difficult to ‘shift gears’ and turn back to the critique of international law. Marks prefers to think of this as:

[A] communicative challenge. How can we find a language that can hold together both formal legal arguments and arguments that criticize legal formalism? How can we express things in a way that makes it clear that determinacy and indeterminacy are not properties of international law, but are themselves arguments which we use in different contexts for different ends?
p.209

So, one way of avoiding the cognitive dissonance I have evinced is to say that indeterminacy is not a property of legal argument, but an argumentative strategy. I just don’t thinks this works though. I guess what I think is that indeterminacy … well … is a property of legal argument. Something is either indeterminate, or it isn’t, there isn’t really a point between. Even if indeterminacy was just a strategy, unless there was some kind of certain criteria that could demarcate when it was legitimate to use this strategy, then international law would still be indeterminate (because the question of when law is indeterminate is itself indeterminate). Indeed, I just think that an anti-formalist formalism (which is all I can really think what this might be), has to be an argument made consciously in bad faith. Now, I can see what in some situations it might be ok to do this, but I think it has to be discussed explicitly.

As some of you will know my solution as to how we grapple with the law is ‘principled opportunism’. Basically, I think that the form of law is rooted in an exploitative social relationship (generalised commodity exchange) and domination and shapes contents that are articulated through it – making it difficult to focus on structural and systemic causes and as such curtailing the transformative potential of legal argument. Furthermore, legalism generally tends to break up collective activity. However, I think it’s fairly clear that progressive interests can be expressed through the law.

So, they key to a progressive legal strategy is to work out how to take advantage of the progressive potential of law’s content, without falling foul of its form. Principled opportunism means that when we invoke legality we don’t do it because of its legality (i.e. its form) but because it advances interests we support. Indeed we support such initiatives in spite of their legality. How does this look in practice, though? Well, the obvious point to note is that there is a conscious instrumentalism at work here – so take this blacklisting business, I would definitely oppose such developments but not for the sake of an abstract ‘right’ to privacy or to holding a political problem. Hence I don’t have a problem with the publication of the BNP membership records and the consequences thereof (and also why I have no problem with excluding BNP members from unions etc.).

Another point is that legality should never be invoked as an independent variable. So I don’t think we should mobilise people with the slogan ‘these acts are illegal’ unless we are very careful about specifying the limits of talk about illegality. But what we can do is mobilise around e.g. a court case centred on said illegality, for instance when people are arguing that a war is illegal as a defence to damaging property. All this has to be done with a conscious disregard for consistence and coherence and full and frank admission as to the indeterminacy of the law.

So, hopefully in this way we help to lessen the legitimating aspects of the law (which ultimately limits relationships of domination and exploitation) whilst taking advantage of legal opportunities that come our way. So I might say – ‘Israel can argue its case’ – but principled opportunism nonetheless permits me to support taking Israel in front of the ICC (ha!) and hoping for the best.

Of course, in practice this support is not going to be as strong as it possibly could be, but I think that’s the price we have to pay to avoid falling into the trap of fully embracing legality.

[Hmmmm…it’s true that the indeterminacy thesis (or at least versions thereof) says groups pursue their interests through the law, and this need not be a ‘conscious’ process. That’s definitely true, but what I think Pashukanis and Marxist approaches more generally point to is that indeterminacy can’t just produce any outcome. Whilst those committed to capitalism can pursue their interests blindly – because the legal form will ultimately uphold their systemic interests – the same thing can’t be said for anti-capitalists. Here, an awareness of the limits of the legal form has to shape the particular strategic approach needed]

Bibliography
Kinsey, R. ‘Marxism and the Law: Preliminary Analyses,’ (1978) 5 British Journal of Law and Society 202
Marks, S. ‘International Judicial Activism and the Commodity Form Theory of International Law,’ (2007) 18 European Journal of International Law 199
Simmonds, N. ‘Pashukanis and Liberal Jurisprudence.’ (1985) 12 Journal of Law and Society 135

Law and Loneliness

A few weeks ago I finished reading Hannah Arendt’s The Origins of Totalitarianism (1962, Meridian Books). As many of you will know the book is really great and mounts an original and persuasive argument with regards totalitarianism, even convincing me that the term might have some utility (although I am fairly steadfast on the idea that equating Nazi Germany and the ‘Stalinist’ Soviet Union is not that useful). However, as with recent critical work (which of course is influenced by this account) I think that Arendt gives law rather too much of an easy ride. Often in the book she treats the law (in Debord’s words) as being ‘asleep’ to processes of domination before ultimately being abolished. As I have argued earlier this is something of a liberal response (although Arendt was obviously not a liberal and she is ambivalent on the law), which absolves law of complicity in oppression (even if one some level it must condemn law for being so inefficient).

I think this is particularly prevalent in her discussion of the role that the ‘masses’ and loneliness play in the growth and consolidation of totalitarianism. For Arendt ‘loneliness’ and the ‘masses’ are two parts of the same process. Although the concept of loneliness in only introduced in an amended chapter to Origins (Ideology and Terror) I would argue it remains implicit within her description of the masses (indeed it is explicitly mentioned in this earlier discussion) and is very useful in differentiating between the special role of the masses in totalitarianism and ‘ordinary’ tyrannies.

Arendt first distinguishes between isolation and loneliness. Isolation occurs in the political sphere, essentially it occurs when people are unable to make public, political contacts with each other. Owing to this they become unable to act politically and so impotent. Arendt argues that this is standard fare for all tyrannical regimes (p.474). However, this political isolation cannot break all contacts between men, the corresponding condition to isolation in human life as a whole is loneliness.

Arendt again makes a distinction, between loneliness and solitude. Solitude is simply being alone or ‘by myself’, for Arendt solitude can still involve a dialogue between ‘me’ and ‘myself’. By contrast, loneliness ‘shows itself most sharply in company with others’ (p.476). Loneliness is the ‘experience of not belonging to the world at all’ (p.475). The experience of loneliness requires the company of others because our identity is constantly confirmed by the company of equals, thus, the experience of loneliness, of not belonging with anyone else ultimately means an end to the self as well.

This is necessary because totalitarian movements embody a total ideology. Only lonely, gullible people who lack common sense and need an anchor in their superfluous world. Arendt gives these rather mystical sounding phrases a concrete basis with her notion of the masses. Essentially, Arendt argues that totalitarian movements (in contrast to all political movements that preceded them) are ‘mass organizations of atomized, isolated individuals’ (p.323). For Arendt, then, totalitarianism depends upon the existence of the masses; for Arendt the masses are a somewhat contradictory phenomenon, produced by bourgeois society. Essentially, they are the embodiment of loneliness so as such the masses are a ‘mass’ of atomised, individuals who have also lost all sense of self (p.311). She ascribes the rise of the masses to the growth of bourgeois society:

The truth is that the masses grew out of the fragments of a highly atomized society whose competitive structure and concomitant loneliness of the individual had been held in check only through membership in a class. The chief characteristic of the mass man is not brutality and backwardness, but his isolation and lack of normal social relationships.
p.317

Reading Arendt’s account of the masses I was struck by two things, firstly, its similarity of Pashukanis’ account of the law, and secondly, the complete absence of the law from Arendt’s particular discussion. Thus, as Pashukanis notes (in the General Theory of Law and Marxism ‘law … is a method of relating atomized social elements’ (p.90), furthermore, from my favourite quote:

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".
p.70

Here Pashukanis demonstrates perfectly the way that law mirrors the contours of the mass man. While it is clearly a way in which individuals relate to each other, it also posits these individuals as atomised, isolated, monads. In other words, one of the prime pre-conditions of totalitarianism, the creation of a mass of atomised individuals is perfectly homologous with the law, this – at least – should be an area of investigation.

However, insofar as Arendt mentions law, it is to talk solely about its inefficacy or its abolition. So, on the one hand, she argues that ‘[t]he first essential step on the road to total domination is to kill the juridical person in man’ (p.447) by placing certain people and certain regimes outside of the protection of the law. This is really just a deepening of Arendt’s classic engagement with the nation-state and the rights of man. Basically, Arendt argues that the phenomenon of refugees and displaced persons undermined somewhat the claim to alienable rights – independent of any particular national laws. This is because the point at which people lost their nationalities – and became refugees – they lost all their rights. Even in the democratic countries they would very likely be placed into camps and had less rights than even criminals (who are at least subject to the procedural rigours of the law). Thus:

The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance.
p.302

Arendt opines that this is because major figures were convinced that civil rights (that is to say the national rights of citizens) were the concrete embodiment of human rights, as such the nation became the heart of human rights. More generally, Arendt argues that the abstract, individual, ‘human’ rights only make sense inside of a stable social hierarchy, which includes not only the nation, but also the class and political structure:

Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are represented by groups or form a social and political hierarchy.
p.312

So the point for Arendt is that with the disintegration of these hierarchies (following the war and owing to the general atomisation occasioned by the development of capitalism) produce the masses, which creates a politics ripe for the abolition of the juridical person. What this account seems to miss is the intimate inter-relation between law and atomisation. Rather than being ‘ineffective’ in the face of atomisation law seems to be an embodiment of this atomisation and – perhaps – an attempt to mediate it, without ultimately overcoming it.

But more than this, Arendt fails to consider the way in which, owing to its close connection with capitalism, law produces atomisation – and so contributes to the formation of the masses, as well as the undermining of stable hierarchies. Social atomisation is – of course – occasioned by the development of capitalism. But capitalism is not just an ‘economic’ system, as Pashukanis has shown, the commodity form always throws up the legal form alongside it – the atomisation of capitalism is the atomisation of law. This becomes even more relevant when we consider the ways in which capitalism brings people ever closer together, this concentration of human beings (in the factory etc.) combined with the atomisation of the law creates the preconditions for the development of the masses.

Another aspect of this atomisation is the social disintegration described by Arendt. In his introduction to the third edition to the General Theory (1977, Ink Links) Pashukanis describes the process by which law becomes the main form of social regulation as:

[T]he disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects. The dissolution of the patriarchal family, in which the pater familias was the owner of his wife’s and his children’s labour power and its transformation into a contractual family in which the spouses conclude between themselves a contract of their estate, and the children … receive wages from the father, is one of the most typical examples of this development.
p.41

The whole thrust of the law is to break up formally recognised hierarchies and replace them with collections of formally equal individuals. This is not just true of the family but more generally. So for instance, Arendt puts a lot of stress on the nation-state, but the thrust of rights-talk has been to juridicalise the nation. Firstly, in the sense that in many cases the ‘idea’ of the nation is reduced to its ‘Constitution’, its ‘Declaration of Rights’ etc. Secondly, in the sense that nationality itself is juridicalised, with the nation no longer seen as an organic social hierarchy but instead a collection of formally equal citizens. Thus, if the law does require social hierarchies to give it substance (and I would really want to qualify this, it’s clear that the law requires something and here I think Rasulov’s notion of the Poulantazian state is very useful) it nonetheless tends to dissolve these very hierarchies.

Thus, even if we are to characterise totalitarianism as without law (and this is always hugely problematic even, I think, inside the camps), it is not the case that the law is simply ineffective when confronted with totalitarians. Instead law was essential in creating the conditions in which totalitarianism could flourish. Law with its emphasis on creating abstract, formally equal individuals and then allowing them to interact as such, is the perfect embodiment of the atomisation and loneliness that gives rise to the masses. This incidentally perhaps tells us something about our own political practice. Often we on the left insist on the right to – say – a minimum wage, benefits etc. in contradistinction to gaining them from charity. In a way this has to be correct because we don’t want people to essentially be dependent on the will of others in the form of charity. However, what charity does do (although even this is increasingly undermined by juridification) is maintain a human relationship as opposed to an abstract, atomised, distant one. The challenge then is to find a politics beyond both abstract rights-talk (which might lead the way to totalitarianism) and romantic organicism, that is to say to find a politics in of the active subject that collectively intervenes in the political sphere.

Law and Debord

When I was younger (about 17 or 18) I really got into – what might broadly be termed – 1960s Marxist humanism (or something like that). Of particular interest to me were Marx’s Paris Manuscripts (and there are still some passages I can remember almost by heart) and the Situationist International, particularly Guy Debord’s Society of the Spectacle. However, once I started to really get into legal theory (and other areas of the Marxist oeuvre), the SI no longer exerted that much direct influence on me. Yet as I was walking home from the chip shop recently it struck me that some of the stuff in the Society of the Spectacle might help to illuminate some legal theory stuff. This is an avenue I could see myself pursuing further in a few years, but here are some preliminary thoughts I have on the matter.

I

In the introduction to Society of the Spectacle Debord argues that ‘[i]n societies where modern conditions of production prevail, all of life presents itself as an immense accumulation of spectacles. Everything that was directly lived has moved away into a representation’ (1). This is obviously a modification of Marx, who argued that the wealth of capitalist society was an ‘immense accumulation of commodities’ (Marx 1999: 13). What is relevant to us is that Pashukanis argues ‘[a]s the wealth of capitalist society assumes the form of an enormous accumulation of commodities, society presents itself as an endless chain of legal relationships’ (1980: 62). Can we interrogate the relationship between commodity exchange, the spectacle and the law?

II

It’s clear that this question is not one that preoccupied Debord. In his Comments on the Society of the Spectacle Debord argued ‘[i]n the integrated spectacular, the laws are asleep; because they were not made for the new production techniques, and because they are outflanked in distribution by new types of agreement’ (xxvi). Debord (in what seems to me a particularly French moves), imagines law to be those formal, general ‘rules’ issued by the state which (although they might well be aimed at combating the spectacle) are simply ineffective. He fails to consider the fact that law itself might be intimately related to the spectacular society he describes.

III

Debord argues that the domination of the spectacle – of representation over lived reality – is the ultimate victory of commodity fetishism. What he fails to note is that as soon as commodity fetishism appeared, legal fetishism appeared also, man was abstracted from his concrete existence and made into an abstract, formally equal legal subject, who possessed certain rights and duties. Thus, in a very real sense, the legal subject is the already existing spectacular representation of actually existing human beings, as Pashukanis notes:

[R]eal conditions are necessary for man to be transformed from a zoological being into an abstract and impersonal subject of law, into a juridic person. These real conditions consist in the condensation of social relations and the growing power of social, i.e. class organization, which achieves its maximum intensity in the "well organized" bourgeois state. Here, the ability to be a subject of rights is finally torn from the living concrete personality, ceases to be a function of its active conscious will, and becomes a purely social quality. Legal capacity is abstracted from the ability to have rights. The legal subject receives his alter ego in the form of a representative while he himself assumes the significance of a mathematical point, a centre in which a certain sum of rights is concentrated.
(1980: 78-79)

Rather than law’s being ‘asleep’, the legal person is already a ‘spectacular’ one. The development of the legal form pre-figures, and remains active in the development of the spectacle more generally.

IV

From this general point, there are some specific ideas that might be drawn. Firstly, the law takes spectacular situations, apprehends them, and even produces them. International law is particularly pertinent here. If we take the example of 9/11, Retort wrote a very astute article on its spectacular significance, they argued that:

Spectacularly, the American state suffered a defeat on September 11. And spectacularly, for this state, does not mean superficially or epiphenomenally. The state was wounded in September in its heart of hearts, and we see it still, three years later, flailing blindly in the face of an image it cannot exorcize, and trying desperately to convert the defeat back into terms it can respond to.
(2004: 12)

To my mind, what is very interesting is the way that international law responded this crisis. Firstly, international law was vital in apprehending 9/11 and ‘converting’ it into an event to which the US could respond to. In this way, law was able to apprehend the spectacular event. But in so doing it had already added its own logic to it, thus partaking in this spectacular event and overdetermining it. More interesting is the way in which law; in apprehending the spectacle of 9/11 then produced ever more spectacular events. The first – and most obvious – is the way that the ‘conversion’ allowed immediate, spectacular action in Afghanistan. But this was not enough. What is very telling is that the spectacle of 9/11 when ‘fed into’ the law was able to produce the defining ‘spectacle of our time’ – the War on Terror. I don’t want to pursue this too far but it is firstly clear that the War on Terror is an intensely legal reality. It is conducted through a series of legal bodies and has used copious amounts of legal argument (although some would argue it is bad legal argument). But secondly, is it not absolutely clear that the War on Terror is a spectacular one? The very name itself is not a war on concrete, actually existing terrorists (although it is that too) but a war on a concept, on an ‘image’, that of terrorism. The actions that took place through it, and the media coverage accompanying them are also pure spectacle. I am sure that we could obverse this logic in other places.

V

More particularly, there is a sense in which legal proceedings themselves are spectacular. If we think about the events of the trial – the pomp, the circumstance, the rituals etc., it is all pure spectacle. In order for ‘real life’ to be ‘represented’ in the legal proceedings it has to be ‘converted’ through a series of special rules and procedures, into something that fits its logic. Law is always and already ‘representation’.

But this process has deepened immensely in the past few years. We don’t have to look too hard to see the way that law enforcement and trial proceedings have captured the public eye. This is obvious from the numerous law-themed TV shows (and there are many) but also from the media attention on the law (and not just criminal law either). Debord argued that:

The celebrity, the spectacular representation of a living human being, embodies this banality by embodying the image of a possible role. Being a star means specializing in the seemingly lived; the star is the object of identification with the shallow seeming life that has to compensate for the fragmented productive specializations which are actually lived.
(60)

I have already commented on the general affinity the legal form and the celebrity might have (in that both are spectacular representations of living beings) but there is a sense in which now the two have merged. The moment of ‘actualisation’ for the legal subject – the moment of dispute, trial etc. – is also the moment in which the legal subject can be transformed into a celebrity; there is an even greater concentration of representation. One’s day in court might also be one’s fifteen minutes of fame.

VI

To return to a theme much beloved of me, legal argument – by virtue of its spectacular character – is subject to a spectacular logic. First and foremost is the sense in which, when the law ‘apprehends’ a given piece of reality (the subject of a case) it ‘converts’ it into a spectacular logic. Thus, the law only ever inquires into the surface of the situation that confronts it. It is unable to consider the deeper logics that may have produced the dispute, or problem or whatever. Instead it treats the situation as a ‘unique’ event, with no structural logic governing it. Everything comes down to the actions of the abstract, formally equal representations that form the centre of the law. This has been much discussed by a lot of people under the rubric of exceptionalism, crisis focus etc., but no-one has tried to look at the structural reasons for this (which is quite ironic).

But – with all the contradictory logic that the spectacle brings – the law, whilst making each situation qualitatively unique, also reduces every situation to a quantitative similarity (much the same way as every commodity is reduced to ‘value’. Debord is very good on the ways that capitalism has standardised and quantified ‘time’ (although of course this is all taken from Lukács):

The time of production, commodity-time, is an infinite accumulation of equivalent intervals. It is the abstraction of irreversible time, all of whose segments must prove on the chronometer their merely quantitative equality. This time is in reality exactly what it is in its exchangeable character. In this social domination by commodity-time, “time is everything, man is nothing; he is at most the carcass of time” (Poverty of Philosophy). This is time devalued, the complete inversion of time as “the field of human development.”
(147)

This logic is exactly the same as that of the law. Whilst insisting on the uniqueness of any given event (or at least its remoteness from any factors which may have produced the event) the law remains obsessed with analogy and standardisation. Once the law has ascribed ‘responsibility’ for the breach on one of the parties, it then proceeds to reduced this breach to a standard ‘substance’ (money, time etc.) and deprive the ‘responsible’ party of this substance. Pashukanis has previously remarked how the logic of the criminal trial mirrors the logic of the exchange of equivalents (1980: 111).

But it is also at work more generally in the law. Thus, the law of self-defence (both nationally and internationally) insists that any action taken in self-defence must be ‘proportionate’, as does jus in bello. In this we see the double movement of the spectacle, whilst it denies that there might be a common logic operating in reality – and so treats each of its spectacles as a self-contained incident – it nonetheless seeks to reduce reality to a common equivalent.

VII

I’d like conclude with what these little observations might mean for legal strategy. Recently, China Miéville has pointed me in the direction of Jacques Verges (which he found through Christodoulidis. Verges argues that we should use court action strategically, as a form of immanent critique – rupturing bourgeois ideology. Verges example consisted in using the legal forum to challenge the legitimacy of the court itself, but we can think of examples that go further than this – like the Yippies.

But my problem with this is that any strategy of rupture seems to be inescapably spectacular – the aim being to counterpose one’s own immediate image to the spectacle. Now, there’s always a possibility that legal strategy will get co-opted by capitalist society. The point of the rupture is meant to be that – precisely because it insists there can be no justice – it cannot be co-opted. But is there not the ever-present chance that precisely because of this spectacular logic the rupture is easily co-optable. The normal danger of legal strategy is that if we win, our opponents can say ‘we can’t be so bad, you got this’. The danger of the ruptural strategy is that it just becomes another ‘media event’, a stunt that has no political significance. Indeed, the danger is – that like 9/11 – any ruptural strategy is simply ‘fed into’ the law, which produces more spectacles. Verges is instructive here, I mean the man has a film about him. Bourgeois society could respond to his ruptural strategy not by saying ‘we’re so free here that he can do this’ but simply by treating him as an eccentric celebrity.

This harks back to Rasulov’s phrase about ‘intellectual anarcho-terrorism’. The only way to really avoid co-optation is to build a serious, practical movement which can’t simply be written off as spectacular. Whether or not such a group can use spectacular methods is – I think – very similar to whether or not we should appeal specifically to legality. I think the answer to both is – it depends, but it’s always going to be risky.

Conclusion
So, yeah, I’m aware that my thoughts on this are very sketchy, and I’ll probably forget all about this soon enough. But I do actually think that something might quite usefully come from reading Pashukanis (and law) through Debordian eyes, and vice-versa. I also think that such a position has a lot to say in illuminating our current conjuncture, and hopefully I could squeeze an article out of this.

Hope y’all had a merry Christmas and have most excellent plans for new year (I do not).

Bibliography
Guy Debord (1967), Society of the Spectacle
Guy Debord (1988), Comments on the Society of the Spectacle
Karl Marx (1999), Capital: Volume 1, Oxford World Classics
E.B. Pashukanis (1980), Selected Works
Retort Collective (2004), Afflicted Powers

Right-wing Pashukanisites

Scott Newton had a lot of interesting things to say at Glasgow (and coined some very useful terms and concepts). One of the dangers he warned of is the ‘right wing Pashukanisites’, these are the people that understand the close relationship between law and capitalism, and the contingency of the state to law. But they use this understanding to argue for a withdrawal of the state from social life and widespread deregulation and privatisation. It’s true that there is a curious affinity between Pashukanis and (what might be broadly termed) classical liberalism, Nigel Simmonds has a very interesting take on this in ‘Between Positivism and Idealism’ (1991 50 Cambridge Law Journal 308):

The relationship between law and social relations is, then one of symbiosis. Yet the basic patterning of law runs from bottom to top. Contrary to positivism, which is inclined to suggest that the texts and the sources of law come to shape a formless social world, an adequate view should see the institutions of private law as reflecting (but systematising) the informal texture of social life, while formal criteria of validity and formal provisions for legislative and adjudicative power stabilise the stabilisers. Law in large part reproduces and confirms the structure of society.

This suggests, of course, that there is much in common between the broadly Hayekian view of law advocated here, and the Marxist view. G.A. Cohen, for example, has analogised the base/superstructure relation to a situation where four struts are driven vertically into the ground but protrude a distance above it; the struts sway and wobble in the wind, until a roof is placed on them. The roof is supported by the struts, but it in turn stabilises the struts ... In fact once we allow that one principal way in which law stabilises social relations is by authoritatively fixing their meaning, we move towards a qualified appreciation of the “imbricationist” view within Marxism, a view that denies the possibility of describing social relations apart from law and offers this as a reason for rejecting the base/superstructure distinction.

The extent of the resemblance between the somewhat conservative Hayekian view of law that I have sketched, and the Marxist view, is further evinced by the work of Pashukanis. Like Hayek, Pashukanis portrays law as emerging spontaneously from practices of dispute resolution, and sees the positivist emphasis on norms and authority [322] as a delusion arising from failure to grasp the priority of relations over formal norms. Again like Hayek, Pashukanis sees private law as the central core of the legal system, in relation to which public law and constitutional structures of authority are secondary and parasitic.
p.323

Hayek is important here, and I am reminded quite strongly of something Splintered was talking about recently. Crucially, however, as Simmonds notes, Marxists differ from liberals in their evaluation of law/capitalism etc. I’m not sure I think that ‘evaluation’ captures entirely the differences in approach here. The term evaluation seems to evoke the image of the Marxist and the Hayekian looking at the same phenomenon (capitalism), with the same understanding of it but the Marxist saying ‘capitalism is bad’ (because it deprives human beings of the capacity to fully realise themselves) and the Hayekian saying ‘capitalism is great (because it gives human beings the capacity to fully realise themselves).

But I think the differences are more important than this. To return to Scott Newton, he argued that one of the really important things Pashukanis (and Marxism more generally) is able to do is ‘see the public in the private’ and the ‘private in the public’. So, Marxists don’t just evaluate capitalism. We firstly see that the ‘private’ character of capitalism – and the wealth of individuals – is maintained by a complex relationship of violence, ideology and economic dependence, which may or may not be the state (in a bourgeois sense; although Akbar Rasulov has been saying some fascinating stuff about how in the Poulantzasian sense of state – a social relation which ‘holds’ social formations together – law always needs it; to my mind this is an avenue for exploration and avoids some of the physical violence centricity that I think China Miéville sometimes slips into). Secondly, we understand that the supposedly ‘neutral’ instruments of state, law etc. actually embed particular interests within them. This is in a double sense; firstly, law (as Duncan Kennedy has persistently notes) has a distributive impact upon supposedly private situations. As such particular interests use the law strategically, so as to secure private advantage. But we shouldn’t get carried away with this. And this brings me onto the second point. One of the most important things we can learn from Pashukanis is the limits to legal struggle. So, although a wide range of interests might be represented through the law, ultimately the legal form itself is produced by and reproduces capitalism. In this sense, it ultimately upholds the interests of one ‘private party’ the class which benefits from capitalism. As is often the case, behind the universal claims as to the rule of law lie the particular claims of one class – the bourgeoisie.

So, the important point is not just that we are just dealing with ‘moral evaluations’. Marxists see the legal form as ultimately upholding the interests of a particular class (the private in the public), whereas libertarians deny the importance of class as a salient category. Furthermore, Marxists stress that the class relationships of capitalist society are relationships of exploitation and domination (with struggle to alleviate the worst of these conditions). Typically, Pashukanis is accused of neglecting this, insofar as class is not hugely focused on in the General Theory and this, it might be argued that his similarity to (say) Hayek originates here. This point isn’t entirely without merit, but I would argue that the similarity comes from the fact that Pashukanis takes the law seriously on its own terms and, as Chris Arthur notes (Law and Marxism: a General Theory, 1978, Ink Links):

The monopolisation of the means of production by the capitalist class is an extra-legal fact (quite unlike the political-economic domination of the feudal lord). The bourgeois legal order contents itself with safeguarding the right of a property owner to do as he wishes with his own property – whether it be the right of a worker to sell his about power because that is all he owns, or that the capitalist to purchase it and retain the product.
(p.30)

Indeed, Marx himself does a similar thing in Capital (when he argues the difference between exchange and production). The point of the Marxist analysis is that it does not remain trapped in the law’s hypnotic image; it seeks to understand how the formal equality of the law interacts with the complex class reality of international capitalism. Thus, as Pashukanis himself notes that ‘‘the republic of the market’ masks the ‘despotism of the factory’’ (1978: 39). However, Pashukanis’ work goes beyond even this – and here is where we truly understand the private in the public (and the public in the private); because the particular despotism of the factor is not just masked by the republic of the market, it is intimately linked to this republic and is only possible through it, again Chris Arthur puts it well:

No amount of reformist factory legislation can overcome the basic presupposition of the law: that a property freely alienated belongs to the purchaser, and hence that the living labour of the worker becomes, through exchange, available for exploitation through capital.
(1978: 31)

Again, I would like to appeal to Foucault on discipline here. One of the really interesting points about Discipline and Punish is the way in which discipline is form of regulation which only comes about through dual processes of concentration and individuation. In other words discipline maps perfectly onto the process outlined by Pashukanis – whereby capitalism (and law) make everyone an individual whilst also brining making everyone and everything more closely inter-linked than they have ever been before.

To put it crudely then, the Hayekian knows rather a lot about circulation, but very little about production. He fails to see that despotic relations of production are in fact an outcome of the equal relations of circulation. The Marxist takes law seriously – and so understands the constitutive role of formal equality/the public in the private – but also understands law’s place in capitalist society and the attendant relations of class domination.

All of this is of course very similar to a previous post I have made.

Law, transgression and the Joker

So anyway, I was ambling around in my usual, thinking of random things and not doing very much productive when a thought struck me about the Dark Knight (the Batman movie). Basically I was thinking back to this rather awesome post, which is quite possibly the most interesting theory post produced on the Dark Knight. Whilst I do think the post is correct in its orientation (as an attempt to take the film seriouslyand not a cod ideology criticism piece) I do rather take issue with its characterisation of the joker as in some way productive of an alternative to the order of Gotham City. Anyhow, this links back to a discussion I had with a friend about the Dark Knight, we both thought there were interesting parallels to be made between the Dark Knight and Dostoyevsky’s Devils, with the Joker representing a kind of Pyotr Verhovensky, a nihilist whose only role is to expose the radical instabilities and hypocrisy of the existing order. And what has this to do with legal theory? Well I was reading International Law and the Poststructuralist Challenge by Akbar Rasulov (who is definitely someone to watch) and I was struck by this:

By melting the rigid structures of dogma, poststructuralism, on the one hand, rewards every reformist movement with a powerful know-how of unorthodox politics and, on the other hand, undermines every radical project in its sight whose performance requires time, planning, and discipline, by immediately turning all its anti-dogmatic arsenal against it. By romanticizing the practice of endless questioning and denouncing the act of closure as such, does poststructuralism not risk becoming just another strand of intellectual anarchoterrorism whose only real achievement is to inoculate the Established Order against any effective challenges from the left? (Rasulov 2006: 807)

Anarchoterrorist strikes me as precisely the right description of the Joker. At no point during the Dark Knight does the Joker actually attempt to articulate an alternative to the order of Gotham City. What he does do is go out to expose the Order’s contingency and ultimate instability – endlessly questioning it, as it were. But ultimately, this position doesn’t just fail to go beyond the law; it also remains within its limits. The Joker can only ever define himself in opposition to the law. The delight in continually breaching the law, showing up its limits, showing its contingency but doing nothing more evinces a certain theological, fetishistic attachment to the law, insofar as the ‘legal’ character of the law is his primary reference point (even if only to rail against).

This I think, can be said to be a danger that poststructuralists (and their ilk) might fall into. In constantly emphasising the limits of the law, deconstructing it, revelling in it, they remain enthralled by the law. There’s a great line from Pashukanis that I continually quote (I have a few of these it has to be said):

The struggle to overthrow and unmask the legalistic fetish of the system, against which the revolutionary struggle is conducted, is a quality of every revolutionary. This is obvious. Without this quality, the revolutionary is not a revolutionary. But, for the petit bourgeois revolutionary the very denial of legality is turned into a kind of fetish, obedience to which supplants both the sober calculation of the forces and conditions of struggle and the ability to use and strengthen even the most inconsequential victories in preparing for the next assault.
(p.138)

This is think is interesting. The idea that the ‘very denial of legality is turned into a kind of fetish’. Pashukanis is unfortunate in describing this as petit-bourgeois (indeed this is a general gripe I have with lots of Leninist stuff – the petit bourgeois seem to be responsible for an awful lot). Indeed Pashukanis doesn’t really do himself justice in talking that way, because he has a perfectly good theory to account for this fetish – outside of making vulgar class generalisations. Pashukanis is clear that commodity fetishism is also complemented by ‘legal fetishism’. There’s a great (and neglected) bit in the General Theory when Pashukanis fumbles towards drawing law, morality and the economy together:

In fact, man as a moral subject, i.e. as an equal personality, is nothing more than a prerequisite of exchange according to the law of value. Man as the subject of rights is such a prerequisite, i.e. as a property owner. Finally, both these definitions are closely connected with a third man as an egoistic economic subject.

All three definitions are not reducible to each other, and are even contradictory as it were. They reflect the totality of conditions necessary for the realization of the value relationship, i.e. a relationship in which the bonds between people in the labour process appear as the material nature of the products being exchanged.

If one abstracts these definitions from the real social relationships which they reflect, and attempts to develop them as independent categories, i.e. by pure reason, then as a result one obtains a tangle of contradictions and propositions which are mutually exclusive. But in the real relationship of exchange these contradictions are dialectically united in a totality.
(p.101)

So in this sense, there is already the beginnings of an explanation as to why even radicals turn the denial of legality into a fetish. Precisely because the commodity-form has penetrated our very beings and we are all juridical subjects – even before we know it – legality occupies a very special place (see this post here, although I really think it would be interesting to write more on legality and subjectivity – Alain’s Supiot’s book is good – if liberal – on this). It is thus somewhat predictable that in turning to radical politics, we nonetheless hold on to this importance – maintaining the centrality of law but simply inverting how we relate to it. But this is not good enough, precisely because it ultimately upholds the special place and role of law in determining our own action.

Of course, it is difficult to read this without immediately thinking of Bataille’s ambivalence of the sacred argument. There, as here, the theological character of a norm is ultimately upheld precisely through its violation (for an excellent example of how this can be applied to international law, see Berman’s great paper Legitimacy through Defiance). The violation qua violation only gains its power from the importance of the norm it violates. Were we to consider the norm unimportant then breaching it would be per se unimportant, with any importance coming from context, results etc.

I think the religious connection is quite interesting. There are a few Marxist theories of the law that suggest we ought to view law as very similar to religion. These tend to mean that we ought to see law can be the ‘heart of the heartless world’ and as such (especially human rights law) can express the interests of the oppressed. But what if we take the analogy further? If – as here – we have already found that law has a certain theological function, perhaps we should look at the precise way that Marx addressed religion. Very useful here is a recent article in Monthly Review:

As a materialist, Marx opted not to invest in the abstraction of God and religion. At the same time he did not attempt to disprove the supernatural existence of God, since that transcended the real, empirical world and could not be answered, or even addressed, through reason, observation, and scientific inquiry. Instead he forged a practical atheism through his scientific commitment to a historical materialist approach for understanding reality in all of its dimensions. The practical negation of God and the affirmation of humanity and science demanded an active movement for revolutionary social change, the real appropriation of the world to pursue human development—the growth and expansion of human capabilities—and freedom.

In other words what Marx seeks to do is avoid the problem of transgressive sacrality by constructing a ‘practical atheism’ in which religion, God etc. is not its central aim. I would argue the same should be done for law. In order to escape the pull of the law it is necessary to construct a practical antinomianism (I think I may have stolen this from someone’s facebook profile but it fits), in which the law per se is no longer our reference point, as Lukács puts it ‘breaking the law should not be regarded any differently than the risk of missing a train connection when on an important journey’.

But such a project could not simply be defined to strategy, as strategy always depends on theory. As a preliminary, the tasks of such a project would be – to theorise the legal form, to theorise the limits of legal argument and vitally to formulate a practical strategy for using the law which is not enmeshed within it. Now of course, Marxists – particularly Pashukanis and Miéville have already begun this task and I personally think that the strategy of principled opportunism might also be a useful way to conceptualise the project of practical antinomianism.

Crucially however the Joker (metaphorically) and lots of (a certain variation of) critical legal scholars have never done this. As Rasulov says, the task is not to play language games, to show the limits of the law etc., the point is to build a project ‘whose performance requires time, planning, and discipline’. Indeed such a movement would ultimately ‘prove the this-sidedness of its thinking’ (as to the limits of the law) ‘in practice’. Anything other than this basically remains within the framework of Gotham City. The Joker needs Batman, Batman needs the Joker. Law needs disorder, disorder needs law.

Supplementary points
There are a few things that I think are worth flagging up that didn’t really fit into the main body of this. Firstly, there’s a sense in which we can conceive of these actions as being an sort of incomplete ideology critique. So generally ideology critique is taken as judging something by reference to its own standards, showing how this fails to live up to its standards and then transcending the particular instance of ideology. But the Joker (taken metaphorically to stand in for a certain tradition in critical legal theory) is content merely to judge the instance (or perhaps denies the very possibility) but without ever transcending it. In another words he remains trapped within the very instance of ideology he seeks to critique.

There also a sense in which this interplay between transgression and obedience might well be linked into the very structure of liberalism itself. The other Pashukanis quote I always love to dredge up is the idea 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.
(p.70)

It’s relevant here precisely because it shows us how the dialectical interplay between obedience to the law (because it is a form of private autonomy) and disobedience of the law (because it is a form of external violence) – what it shows is the way that both perspectives might nevertheless remained locked into the liberal-legal edifice, without ever finding a way out. Indeed China has a really interesting forthcoming article that talks (a bit) about the symbiosis between neo-conservative ‘nihilism’ and liberal legalism.

Apologies for the somewhat chaotic nature of the post, but now you have an insight into the disturbingly skewed nature of my thought processes. More posts coming over the next few weeks as the Glasgow University workshop on Pashukanis and International Law (very enjoyable, although I really wasn’t at my best) has stimulated the old brain cells.

References
Rasulov, Akbar International Law and the Poststructuralist Challenge, (2006) 19 Leiden Journal of International Law 799-827

Agamben, Hobbes and Liberalism: some incoherent thoughts

Wow. You turn around and suddenly two months have gone by. I have been a little bit busy, I got, and then lost, a job (damn you economic crisis!), have a few academic projects up in the air and have read a few books. Also, to be honest, I haven’t been that inspired to blog anything, indeed I am posting this because my cat woke me up this morning, I couldn’t get back to sleep and this thought popped into my head. Anyway, what I was thinking about was Homo Sacer.

Agamben and Hobbes

One of the really interesting bits of Homo Sacer for me was Agamben’s reading of Hobbes, as I’ve mentioned before I think Hobbes is a really interesting and really important figure, so it’s always good to see him get a mention. Anyway, Agamben argues that the state of nature is ‘not so much a war of all against all as, more precisely, a condition in which everyone is bare life and a homo sacer’ (1998: 106). As such, Hobbes argues that the institution of sovereign power arises when people lay down their right to resistance and it is left for the sovereign. Thus, for Agamben sovereign power (in Hobbes) is not founded on contract but on the inclusive exclusion of bare life which is realised through the ban. According to Agamben:

The understanding of the Hobbesian mythologeme in terms of contract instead of ban condemned democracy to impotence every time it had to confront the problem of sovereign power and has also rendered modern democracy constitutionally incapable of truly thinking a politics freed from the form of the state.

(1998: 109)

I think Agamben’s reading of Hobbes has much to recommend to it, however, I don’t think that he can lay claim to an authoritative reading of Hobbes. In fact, I don’t think we can definitively say whether Hobbes focuses on the ban or the contract because I think he is ambivalent on this question. There are several ambiguities in Hobbes which centre around these questions. Thus, on the constitution of a sovereign Hobbes says:

The only way to erect such a common power ... is, to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will.

(1998: 114)

But this can only be done when the great multitude ‘by mutual covenants one with another, have made themselves everyone the author’ (Hobbes 1998: 114). Immediately, there is an ambivalence as to what precisely has constituted the sovereign. Either, we all start with a right to do something in the state of nature and we all agree to lay down this right vis-à-vis the sovereign, whilst the sovereign retains it or we have all authorised the sovereign and he bares our person. Nigel Simmonds has pointed out that here the two traditions of jurisprudence (natural law and positivism) vie with each other. For if the former conception is correct, then the sovereign’s authority (and as such law’s bindingess) is a right of pure coercion, since only he retains the right to use it. Yet in the latter conception we have a duty to obey, since the commands of the sovereign are our commands. Here, one can see the tension between the ‘ban’ and the ‘contract’. Indeed, in a single paragraph Hobbes effaces transferring and renouncing a right:

And lastly the motive, and end for which this renouncing, and transferring of right is introduced, is nothing else but the security of a man’s person, in his life, and in the means of so [88] preserving life, as not to be weary of it. And therefore if a man by words, or other signs, seem to despoil himself of the end, for which those signs were intended; he is not to be understood as if he meant it, or that it was his will; but that he was ignorant of how such words and actions were to be interpreted.

The above tension becomes especially apparent in Hobbes’ discussions of a ‘right’ as against the sovereign and the ‘duty’ to obey. Despite, his partial argument that the sovereign springs from covenant Hobbes has quite a few strategies for avoiding the implications of this argument. His first – and for our purposes least interesting – strategy is to argue that the citizens have covenanted with each other and not with the sovereign, which hadn’t existed at that point, as such the sovereign cannot breach he covenant. His second, more interesting, strategy is to argue:

Besides, if any one, or more of them, pretend a breach of the covenant made by the sovereign at his institution; and others, or one other of his subjects, or himself alone, pretend there was no such breach, there is in this case, no judge to decide the controversy it returns therefore to the sword again; and every man recovereth the right of protecting himself by his own strength, contrary to the design they had in the institution.

(1998: 116)

This relates back to Hobbes’ idea that covenants are only binding when there is a public power to enforce them. But of course, this begs the question, where does the bindingness of the original covenant come in? These strategies, whilst designed to minimise the impact of contractual reasoning, nonetheless remain rooted in the idea that the sovereign springs from covenant. Hobbes also deploys other strategies, which seem more rooted in the ‘ban’:

To resist the sword of the commonwealth, in defence of another man, guilty, or innocent, no man hath liberty; because such liberty, takes away from the sovereign, the means of protecting us; and is therefore destructive of the very essence of government.

(1998: 145)

These strategies are very closely related to the ambit of sovereign power and the ‘right to resistance’. Hobbes’ deals with this in an infamous manner, arguing:

[B]ecause every subject is by this institution author of all the actions, and judgments of the sovereign instituted; it follows that whatsoever he doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth anything by authority from another doth therein no injury to him by whose authority he acteth: but by this institution of a commonwealth, every particular man is author of all the sovereign doth: and consequently he that complaineth of injury from his sovereign, complaineth of that whereof he himself is author...

(1998: 117)

(Again, the strategy outlined at p.145 is complementary to this). Yet Hobbes also realises he has to qualify this by arguing that a man always has the right to defend his own life and the conditions of his life. I don’t think that these ambiguities in Hobbes can simply be read off as inconsistencies or as varying attempts at justification for his overall project (as I imagine Agamben has to). Instead, I think this tension in Hobbes work – between contract and ban – actually tells us something quite interesting about liberalism. Now, there are lots of liberals who don’t think Hobbes is part of their canon. I don’t want to dwell too much on this although MacPherson, Arendt and Strauss do an excellent job of placing Hobbes within the bourgeois liberal tradition. I think at the very least Hobbes has to be acknowledged as pre-figuring the liberal tradition and his individualistic, rational ‘citizens’ are the bedrock of subsequent liberal justifications for the state.

A Little Locke

Indeed, in the case of Locke, what we see is very similar problems to those with Hobbes, but with only the weakest solution to them. Nowhere is this more evident than in his attempt to reason out how it is we can consent to government if we were not part of the original compact to it:

But since the government has a direct jurisdiction only over the land, and reaches the possessor of it, (before he has actually incorporated himself in the society) only as he dwells upon, and enjoys that; the obligation any one is under, by virtue of such enjoyment, to submit to the government, begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government, will, by donation, sale, or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed...

(Locke 1689: § 121)

Here, Locke comes right up against the tension in Hobbes. Indeed, from the perspective of the person who wants no part in the ‘social contract’ the government looks to be made of ‘pure coercion’ and the fact that ‘he is at liberty to go and incorporate himself into any other common-wealth; or to agree with others to begin a new one, in vacuis locis, in any part of the world, they can find free and unpossessed’ is unconvincing. Similarly, when the government breaches its social contract ‘they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty’ (Locke 1689: §222). The practical result of this – of course – is no different to that which Hobbes outlines, we revert to a situation of the sword against the sword, a situation in which ‘right’ no longer seems particularly important.

Liberalism

In searching out what Hobbes ‘really’ means and moving decisively in favour of the ‘ban’ I think Agamben misses the fact that this ambivalence is a structuring tension in liberalism. This can be seen in the fact that – right from the get go – the central problematic of liberal political theory is working out how to justify the deployment of coercion in terms of freedom and equality. However, this doesn’t just operate at the level of theory; it is – for example – particularly evident in the discourse on terrorism and security. The way that the argument typically rolls around is something like this – we need to protect our liberties and some people are threatening our liberties – so what we need is security, thus as Marx notes (in a very prescient piece of analysis):

Security is the supreme social concept of civil society; the concept of the police. The whole society exists only in order to guarantee for each its members the preservation of his person, his rights and his property. It is in this sense that Hegel calls civil society “the state of need and of reason...The concept of security is not enough to raise civil society above its egoism. Security is, rather, the assurance of its egoism.

(1978: 43)

However, it soon becomes apparent that the very rights we seek to protect are in fact protecting those who would take them away from us. So here, we have to breach, or abrogate those rights, so as to protect them. This, as Marx says, results in a rather odd position:

This amounts to saying: the right to liberty ceases to be a right as soon as it comes into conflict with political life, whereas in theory political life is no more than the guarantee of the rights of man – the rights of the individual man – and should, therefore, be suspended as soon as it comes into contradiction with its end, these rights of man.

(1978: 44)

But what Marx missed was the way that this concrete manifestation of a general tension is resolved in a particularist manner. Because in practice ‘these rights of man’ are not often wholly suspended (although there are of course exceptions to this), the rhetoric of depriving rights to protect rights is always directed at particular groups. This is true both nationally and internationally. So nationally, what you see is certain groups – communists, Muslims etc. – branded as a threat to ‘our liberties’. As such it becomes justified to deprive these groups of some of these liberties and – in the case of those against whom there is greater ‘evidence’ – many of their liberties. It is also true internationally, with certain states labelled as rogue states etc. on the basis of their persistent rights violations against whom – at least in some quarters – seemingly non-liberal actions become acceptable.

This contradiction leads to the most wonderful rhetorical contortions and faux rage (witness the response of Decents to Amnesty International reports and their attempts to wriggle out of Guantanamo etc.). Liberal states – by virtue of the fact that they are protecting rights – are justified in violating those very rights that claim to protect by the fact that others are violating those same rights rights. But again, this general claim has a particularist resolution, it is no accident that this reasoning is co-extensive with imperialism. Indeed, the recent Georgia-Russia scuffle is revealing in this regard, Russia adopting this rhetoric was roundly condemned but note that much of the condemnations was not that Georgia had not violated rights, rather the claim was that Russia had violated Georgia’s territorial integrity – Russia was not even considered as having the capacity to exercise the right of ‘humanitarian intervention’.

Law

In touching on liberalism I have, of necessity, touched on law. Law is usually absolutely central to liberalism and as such is the immediate repository of its contradictions. Indeed, the initial contradiction – contract or ban – is deployed precisely to justify the coercion that is embodied in the law. Law is also immediately active in the question of rights (as it is what embodies them) and security (as it is what ‘creates’ it). As Pashukanis argued, law is also – in terms of its form, immediately subject to this tension:

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”

(1980: 70)

The form of law – recognising abstract, formal equality – is certainly (to some degree) a form of ‘freedom’, but this is always counterposed to the violent coercion that is part and parcel of the law.

Structure

I think these brief considerations of the law point to the material source Hobbes equivocation between the ‘ban’ and the ‘contract’ (and liberalism’s subsequent ambiguity) – namely capitalist property relations. Capitalist property relations combine freedom with subordination, on the one hand everyone in capitalist society is considered a potential property and as such, all are represented as equal to each other. On the other hand, the substantive relations that these individuals enter into – particularly the employment relation – are relations of subordination and domination. Furthermore, although individuals can choose their employer they cannot survive without working. Whilst individuals are formally able to become capitalists in practice this is very difficult and for a capitalist class to exist there must always be a working class. Thus, capitalist property relations are composed of both the ban and the contract in an unstable mix; liberalism, which is the purest ideological expression of capitalism mirrors this structure, as does capitalist society at large.

In neglecting the ambivalence of Hobbes’ work Agamben therefore tends to obscure the very real problems with which Hobbes in grappling.

(Sorry this was so quote heavy, the old synapses have been firing so hopefully some more stuff soon – and definitely my impressions on this Glasgow thing I’m going to in December; also, I was very tired when I wrote this)

References

Agamben, Giorgio (1998) Homo Sacer: Sovereign Power and Bare Life, Stanford University Press

Hobbes, Thomas (1998) [1651] Leviathan, Oxford World Classics

Locke, John (1689) Two Treatises on Civil Government

Marx, Karl (1978) [1843] “On the Jewish Question,” in R. Tucker ed., The Marx-Engels Reader. New York: W.W. Norton & Company

Pashukanis, Evgeny (1980) [1924] “General Theory of Law and Marxism,” in P. Beirne and R. Sharlet eds., Pashukanis: Selected Writings on Marxism and Law, London: Academic Press

(Really) Agamben and Pashukanis

Agamben (emphasis mine):

The law has a regulative character and is a "rule" not because it commands and proscribes, but because it must first of all create the sphere of its own reference in real life and make that reference regular. Since the rule both stabilizes and presupposes the conditions of this reference, the originary structure of the rule is always of this kind: "If (a real case in point…), then (juridical consequence…)," in which a fact is included in the juridical order through its exclusion, and transgression seems to precede and determine the lawful case. That the law initially has the form of a lex talionis …means that the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not a punishment of this first act, but rather represents its inclusion in the juridical order, violence as a primordial juridical fact…In this sense, the exception is the originary form of law.

The cipher of this capture of life in law is not sanction (which is not at all an exclusive characteristic of the juridical rule) but guilt (not in the technical sense that this concept has in penal law but in the originary sense that indicates a being-in-debt: in culpa esse), which is to say, precisely the condition of being included through an exclusion, of being in relation to something from which one is excluded or which one cannot fully assume. Guilt refers not to transgression, that is, to the determination of the licit and the illicit, but to the pure force of the law, to the law's simple reference to something.[1]

Pashukanis:

Russkaya Pravda‑that most ancient historical monument of the Kievan period of our history‑consists of 43 articles (the so‑called academic register). Only two articles do not relate to violations of criminal or civil law. The remaining articles either determine a sanction, or else contain the procedural rules applicable when a law has been violated. Accordingly, deviation from a norm always constitutes their premise. The same picture is presented by the so‑called barbarian laws of German tribes. For example, in the Salic Law only 65 of 408 articles do not have a punitive nature. The oldest monument of Roman law‑the laws of the Twelve Tables‑begins with rules defining the procedure for initiating litigation: "Si in ius vocat, ni it, antestamino. Igitur im capito". (If a man is called to court and he does not go, this should be attested, and he should be taken there) …

Non‑observance of a norm, or violation of it, the disruption of normal intercourse and ensuing conflict: this is the starting point of the most important content of ancient legislation. Conversely, what is normal is not fixed in the beginning as such‑it merely exists. The requirement that the scope and content of mutual rights and obligations be fixed and exactly established, appears when calm and peaceful existence is violated. From this perspective Bentham is right when he asserts that a statute creates rights as it creates crimes. Historically, the legal relationship assumes its specific character pre‑eminently in the facts of violations of law. The concept of theft was defined earlier than the concept of private property. The relationships attending a loan were fixed when the borrower did not want to repay it: "if one tries to recover a debt and the debtor refuses etc." (Russkaya Pravda, Academic Register, Art. 14). The original significance of the word pactum was not that of contract, but pax, peace, i.e. an amicable conclusion to hostility, "peaceful" (Vertrag) supposes the end of "unpeaceful" (Unvertraglichkeit).[2]

Which links nicely back to the introduction to this blog I wrote over three years ago(!):

[I]n a real sense law only exists with disorder, the normal conduct is only rendered "normal" by the deviation itself. Historically, then, law can only be seen as arising as a material solution to “disorder”, and to act as a corrective. But the continued existence of a law can surely only mean one thing, disorder still exists. Therefore the corollary of the law is not “order” because once one has “order” there is no need for law, law is dialectically generated by the continued presence of disorder. Therefore the fact that law does not extinguish itself also raises many questions as to its efficacy as a method of social regulation.

What does all this tell us? Firstly, one wonders why the sole reference I can find in anything Agamben writes to Pashukanis is in State of Exception, where he simply notes the opposition between Vyshinsky and Pashukanis on the question of the withering away on the law. If anyone else can find a reference I would be gratified to see it. Secondly, what I quite like about Agamben is that he actually deals with ‘law’ as a named relation. A lot of people seem to deal with Schmitt as primarily a political theorist. Having read the Schmitt I’ve read I always find this a bit hard to swallow, whilst Schmitt is obviously speaking to politics broadly conceived, there are vast swathes (one might say these swathes constitute the majority of his work) in which he is thinking juridically. This is particularly evident (to me) in – say – Political Theology; I read a lot of people who take Schmitt speaking very narrowly of states of exception. Yet, it seems to me that alongside this Schmitt’s decisionism extended into legal decision-making as such. This depiction of indeterminacy (which McCormick is very good on) is powerful precisely because it totally problematises a central plank of liberal-capitalist ideology the ‘rule of law’ (and not men). The mature Schmitt is even better on this, but it seems few people have read On the Three Types of Juristic Thought – perhaps because it is a much more juridical work.

I think it’s quite interesting to compare the way in which Pashukanis and Agamben approach this. Agamben’s approach seems to be primarily philosophical/theoretical, with some nods towards historical analysis. Pashukanis approaches the question both logically and historically, grounding his logical analysis in historical presentation (although one can hardly call his brief historical considerations an in-depth analysis). What I also find interesting about Pashukanis’ work (and this describes his work more generally) is the way in which he depicts the unfolding of theoretical argument through a historical process.

I’m also tempted to say that Agamben’s lack of an explicit theorisation of the legal form hinders him somewhat (although again I have in no way read his entire oeuvre and so am probably wrong). So Pashukanis doesn’t just argue that law needs disorder etc.; he outlines a specific historical process through which deviations eventually constitute the norm, which eventually gains its legal character. Whereas, with Agamben it’s just kind of there. This of course raises a whole host of other problems – chief among them that inclusive exceptions might be said to operate amongst a whole host of regulative social relations (something which Agamben is happy to acknowledge). However, I think I’ll leave my mediations for now, and return to this at a later point, as all I really want to do is quote Pashukanis at people, this would not be wise, but I would again recommend people read him. I think I’ll also write something a wee bit more coherent at a later time.

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[1] Homo Sacer, pp.26-27

[2] General Theory of Law and Marxism, p.110