Schmitt?

Yesterday I read an article by William Scheuerman – ‘After Legal Indeterminacy: Carl Schmitt and the National Socialist Legal Order’.[1] Schmitt is an odd character for me and at some point I do intend to make more of an engagement with him, when I get the time. I first came to Schmitt through Neumann and Kirchheimer, and was therefore pretty critical of him. All I really knew about Schmitt was that he was a Nazi and so was pretty shocked when I found out just how popular he was with the new left.

Now I still maintain a pretty critical distance from him, however, in order to understand a whole lot of modern people writing about the law (Agamben, Hardt and Negri, Zizek etc.) and the particular conjuncture we’re living through (permanent state of emergency). This being said I’m not really whether Schmitt can’t be ‘replaced’ with a bunch of other critical legal theorists (e.g. the Crits, the Realists and of course the Marxists).

Scheuerman’s account is pretty interesting. I already knew a lot of what he says as regards indeterminacy. However, I have a few issues with the way in which he addresses it. My biggest problem with what Scheuerman rights is that he seems to confuse indeterminacy with unpredictability. Take for instance his account of how Schmitt wanted to distance himself from radical indeterminacy. Essentially for Schmitt much of the indeterminacy present in the law owed to the fact that different ethnic ‘spirits’ attempt to use the law for their own, radically different ends. Therefore Schmitt proposed a way to render the law more predictable. If the judiciary was purged of all non-German elements and rendered ethnically homogenous, then they would all reach the same conclusion on the ‘meaning’ of a particular norm.

The thing is that this wouldn’t render the law determinate. Brian Leiter distinguishes between two different types of indeterminacy, causal and rational indeterminacy:

‘The Realists famously argued that the law was “indeterminate”. By this, they meant two things: first that the law was rationally determinate, in the sense that the available class of legal reasons did not justify a unique decision … but second, that the law was also causally or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did.’[2]

What this means – of course – is that a predictable legal system is perfectly capable of being indeterminate. It will not be predictable upon the basis of the law but provided one knows what to look at the law could be predictable. Thus even if ‘[l]egal categories are simply “empty vessels” filled by acts of power that force meaning into them’ provided one can make an analysis of ‘power’ one can predict the law in some way.

Of course, as Leiter notes this entails a certain positivistic view as to what constitutes a ‘legal’ source. Thus someone arguing that Schmitt was able to introduce some kind of determinacy into his legal theory might say that the ‘ethnic spirit’ constitutes a legitimate legal source, and therefore the law is not causally indeterminate, furthermore, one might then say that by introducing a racially homogenous judiciary the law is no longer rationally indeterminate, insofar as these ‘legal’ reasons can now justify a unique result.

However, one should briefly note the words of Martii Koskenniemi as regards indeterminacy:

[T]his [the indeterminacy thesis] is not a semantic thesis about the linguistic vagueness of norms. Some rules are clearer than other rules. The indeterminacy thesis deals with relationships between rules and exceptions, counter-rules and the reasons for rules, and shows that even a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule. Because rules are no more important than then purposes for which they are enacted, and because there is disagreement about those purposes (as rules always come about through legislative compromise over ‘conflicting considerations’). It is always possible to set aside a rule. Thus, all law (and not just semantically unclear law) is infected by indeterminacy. There is, in this sense, no middle-of-the-road solution at all: even one that initially seems such, is an occasionalist reliance on a momentarily hegemonic solution.[3]

What is important to note here is the notion of a ‘momentarily hegemonic solution’, Schmitt’s theoretical analysis proposes a solution that is clearly based on a momentary hegemonic solution. Determinacy and meaning are ‘imposed’ from the ‘outside’. Scheuerman himself notes that Schmitt’s solution was ultimately ineffective and in fact ‘consistency was guaranteed, first and foremost, by institutional and political mechanisms’.[4] What seems puzzling about this is that Scheuerman is contrasting the purging of the judiciary with ‘political mechanisms’. Yet surely the purging of a judicial caste is the quintessential political act. What I think Scheuerman is trying to say is that the hegemony of meaning is guaranteed through a continual imposition of political mechanisms. Yet this is not unique to Nazi Germany, all societies have some way in which ‘politics’ are able to determine legal results.

The difference is in that most societies these politics are contestable and different classes are able to, in some way have an effect on the legal process. Nazi Germany is a particular case, and it’s something I want to look into more – namely the relationship between monopoly capitalism, Nazism and class struggle. One day I intend to write more on this, as this is the point at which law, fades into pure politics and administration. So one day y’all are going to hear an invocation of Adorno, Freud, Palme-Dutt and Gramsci on fascism and I will attempt to relate it back to the legal form.

At the end of his piece Scheuerman tells us that ‘challenge’ that Schmitt lays down for radical indeterminacy:

At the very least, it seems incumbent on some contemporary radical jurists to do a better job explaining why their embrace of the radical indeterminacy thesis need not succumb to the ills so evident in Schmitt’s National Socialist writings. The case of Schmitt clearly contradicts the dogmatic assumption shared by some jurists today “that liberating those who wield legal power from the ‘mistaken’ belief that legal doctrine constrains their actions will have a progressive effect.”[5]

Scheuerman, quotes Larry Solum here, and I think they’re a both a bit off base. Firstly, I think it’s a very small minority of jurists who believe that a belief in legal indeterminacy will have a necessarily positive effect. In many respects I’d say the opposite is true, knowledge that ‘legal doctrine’ is merely a vessel can be disastrous. One merely has to observe some of the decisions of class conscious members of the English judiciary to see that once politics is explicitly let in it can be a bad thing. This being said surely what the indeterminacy thesis posits is that knowledge of the law not being determinate will have very little effect on legal decisions. For even if one acknowledges that the a unique result is not capable of being achieved through the available legal reasons one nonetheless needs a legal ‘ladder’ with which to reach a particular result. Thus even if one was aware of the lack of binding legal reasons one couldn’t ignore the law altogether. Furthermore, even if one does recognise law is politics (in a certain sense) it does not follow that its progressive, that depends on one’s view of politics (and I’m pretty sure most ‘critical’ legal theorists do not see politics as automatically progressive).

One ought also to recognise that post-liberalism can take many different forms. I personally would vastly prefer liberal-legalism to Nazism. But post-liberalism need not necessarily be Fascistic, and post-liberal social regulation need not be legal in form.

---

[1] 19 Cardozo Law Review 1743

[2] Brian Leiter, American Legal Realism, p.3

[3] Martii Koskenniemi, ‘And by Their Acts You Shall Know Them…(And Not by their Legal Theories), EJIL 15 (2004) 839, at p.850

[4] Scheuerman, op cit, p.1766

[5] ibid, .1769

Fundamental contradictions

So here's an excerpt of something I seem to have working on forever, basically I'm trying to place the idea of a 'fudamental contradiction' being responsible for legal indeterminacy within a Marxian framework:

At this point it is useful to return to the Critical Legal Studies Movement. Much of the analysis of the Critical Legal Studies Movement focuses on the notion of a ‘fundamental contradiction’. It is held that indeterminacy in the law is a by-product of fundamentally irreconcilable postulates of liberal ideology. For Duncan Kennedy ‘the goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it’.[1] The irreconcilability of the individual and the community in liberal political theory is said to pervade all legal doctrines in some way, shape or form, and as such ‘a valid, clear rule may be inapplicable due to the need to apply a narrow exception or standard so as to realize the purpose of the rule’[2].

Kennedy invites us to ‘[s]uppose that the fundamental contradiction has “always” existed, in its present degree of intensity and pervasiveness’, which therefore makes us wonder why ‘it has either not been experienced at all, or not acknowledged by any of the succeeding generations of Western Leading thinkers … of the very recent past’. He further invites us to suppose that ‘there have existed processes of mediation, or denial’[3] that served to ‘hide or disguise it from those engaged in the enterprise of legal thought’.[4] From a Marxist standpoint this position is eminently worthy of critique, Brian Leiter has described Kennedy as a ‘philosophical liberal who views the ‘conflict’ between individual and society as a perennial feature of the human situation’[5] who has ‘abandoned all the philosophical content of genuine antiliberal positions’.[6]

However, the rational kernel of this position can serve as a starting point for a Marxist account, provided its flaws are properly addressed. Kennedy’s line can be critiqued on two basic fronts. Firstly, there is the problem that he (like Roberto Unger) ‘presents his favoured principles and disfavoured counter-principles as universal: he gives no indication of their genesis or the conditions of their existence’.[7]

This criticism is not entirely fair, as it is possible to – even on Kennedy’s own terms – to find an account for the conditions of the existence of the fundamental contradiction. Although Kennedy asks us to ‘[s]uppose that the fundamental contradiction has “always” existed’ he immediately posits that this contradiction has been historically mediated and hence ‘hidden’. If a contradiction is ‘mediated’ and hidden it is not ‘active’, and therefore has no effect upon the law – if this is the case this then materially speaking there is no contradiction at all. If this is the case then there must be some reason why it becomes active. This explicitly opens the door for a materialist account of the conditions that allow it to become active – in effect the conditions of its genesis.

The stronger critique is the second one, that ‘in Critical Legal Theory, abstract notions such as ‘individualism’ and ‘altruism’ have come to be seen as producing contradictions in their own right qua ideas’.[8] From a Marxian standpoint this is obviously insufficient, as a Marxist account as its prime role is to show ‘how theoretical problems are generated from the relations between individuals in society’. One can easily reconstruct Kennedy’s account by integrating it within a historical materialist framework. A Marxist account would address the two problems together, as inseparable moments in a historical movement. For China Miéville the basic Marxist position is that the ‘social relations of general commodity production are the foundation for liberalism and its contradictions’.[9] This analysis provides a starting point, however much more detail is required; one must conduct a historical analysis of the development of these social relations, so as to see how they relate the fundamental contradiction.

Much of the analysis has already been laid out in this piece. The basic account of how the transition from liberalism to feudalism provides a background theoretical and historical account. Such an account is further fleshed out in Marx’s account of pre-capitalist societies in the Grundrisse.[10] For Marx ‘human beings become individuals only through the process of history. He appears originally as a species-being [Gattungswesen], clan being, herd animal’[11], in this context the fundamental contradiction cannot be active, since the individual is mediated through the community. This is mirrored in the notion of hereditary privilege and custom. However, as has previously been outlined ‘[e]xchange … makes the herd-like existence superfluous and dissolves it’.[12] Such an analysis is necessary but not sufficient for a Marxian account of the fundamental contradiction. Although it has posited how individuals might well suddenly come into conflict one would imagine that since the ‘community’ has been dissolved there is suddenly nothing that conflict with these individuals.

Of course, this notion is premised on the idea that the community that remains is simply an aggregation of these individual wills and therefore has no ‘collective’ aspect. This is patently false. In fact, the Marxist position is much more complicated than this. A Marxist approach does not hold that the ‘organic community’ is the only form of ‘collectivity’ that exists, thus the abolition of this community and the transformation of its constituents into individual commodity bearers (and consequently legal subjects) does not mean that society has been rendered more individualistic. In fact the development of the capitalist economy, even at its most basic has a very different result. In Capital, Marx outlines the process whereby capitalist production develops from manufacture. The key element in this process is the drawing together of labour under capital – ‘the laws of the production of value are only fully realised for the individual producer, when he produces as a capitalist and employs a number of workmen together, whose labour its collective nature is at once stamped as average social labour’.[13] Thus capital, as a social relation – even whilst it is dissolving ‘the herd-like existence’ – requires the drawing together of people in cooperative endeavour

Furthermore, the historical development of the capitalist economy has led to an ever greater development in communication and socialisation. As Marx and Engels famously put it in the Manifesto of the Communist Party:

The bourgeoisie keeps more and more doing away with the scattered state of the population, of the means of production, and of property. It has agglomerated population, centralised means of production … The necessary consequence of this was political centralisation. Independent, or but loosely connected provinces, with separate interest, laws, governments and systems of taxation become lumped together[14]

The advance of capitalism has facilitated greater and greater intercourse between people and nations, developing as it has new forms of communication as a necessity for economic intercourse. Yet simultaneously with this development it continuously posits individuals (both economically and legally) as isolated subjects, herein lies the materialist explanation of the fundamental contradiction. Marx and Engels recognised that this contradiction was important, and that it operated on both a micro and macro level in capitalist society. Thus, in his discussion of cooperation Marx noted that ‘[b]eing independent of each other, the labourers are isolated persons, who enter into relations with the capitalist but not with one and another. This co-operation begins only with the labour process’.[15]

Engels is much more forthright in dealing with this contradiction, and deals with as a global contradiction. For Engels ‘production itself had become in essence socialised. But they were subjected to a form appropriation which presupposes the private production of individuals’, this contradiction ‘contains the germ of the whole of the social antagonisms of today’[16]. In fact, rather serendipitously Engels refers to this as the ‘[f]undamental contradiction’.[17] A Marxist account therefore locates the contradiction giving rise to indeterminacy in the law firmly within the realm of commodity production. Commodity production necessarily posits individuals as isolated subjects, whilst simultaneously developing an ever more socialised form of production and society, as this develops the two come into irreconcilable conflict, which is itself manifested in other social forms. In this way the conflict between the ‘individual’ and society is historicised and placed firmly within the realm of the material. One can also explain why indeterminacy did not necessarily plague all other legal systems, as it is only upon the generalisation of commodity exchange (i.e. capitalism) that the ‘community’ is destroyed concurrently with an increasing socialisation of all aspects of life.

Such an analysis is not entirely ignored in Pashukanis’, who recognised that the law is ‘a form of external authoritative regulation and a form of subjective private autonomy’. This analysis is carried further and beautifully linked with the notion of a fundamental contradiction in capitalist commodity exchange when Pashukanis puts forward the position that law ‘appears both as the basis of social organization and as the means for individuals “to be disassociated, yet integrated in society”’[18]. What is particularly interesting is that Pashukanis seems to notice the inherently contradictory position of the commodity form and the legal form, insofar as both posit an isolated individual subject yet this subject is necessarily posited in terms of another subject.

I'm not entirely satisfied with, I need to expand on the basic contradiction inherent in the commodity form (which Pashukanis identifies) and then maybe put in a reference to the Hegelian dialectic of consciousness. This has also prompted me to start thinking some more about criminal law from Pashukanis' perspective, and about the critiques he's received on the subject.

---

[1] Kennedy, 28 Buff. L. Rev. 205 1978-1979, Structures, p.210

[2] Martii Koskenniemi, ‘And by Their Acts You Shall Know Them…(And Not by their Legal Theories), EJIL 15 (2004) 839, at p.850

[3] Kennedy, Structures 213

[4] Kennedy, Structures 214

[5] Leiter, 1997 17 Oxford J. Legal Stud. 367, p.383

[6] Leiter, 1993-1994 142 U. Pa. L. Rev. 549, p.574

[7] David Jabbari, From Criticism to Construction in Modern Critical Legal Theory, 1992 12 Oxford J. Legal Stud. 509, p.519

[8] Jabbari, p.541

[9] Mieville, BER 54

[10] Marx-Engels Reader, p.261-276

[11] MER, p.262

[12] MER, p.262

[13] Capital, p.196

[14] MER, p.477

[15] Capital, 204

[16] MER 704

[17] MER 717

[18] GTLM 70

Rights?

Finally I should note a troublesome consequence of the reification of rights. Once my experience in marching to oppose U.S. intervention in Central America is transformed into an example of exercising a right, I may find myself pulled in direction that I would resist were I to confront the issues directly. Having thought of myself as exercising a right to free speech, I will find myself asking whether the Nazis in Skokie or pornographers also have rights to free speech of course one can resist this pressure by defining the right to free in one way rather than another. Or one can concede the need to protect the “rights” of Nazis and pornographers as a prophylatctic in a society in general devoted to advancing the cause of the party of humanity. But the problem arises because of the reification of right in the first instance. If we treated our experiences of solidarity and individuality as directly relevant to our political discussions, instead of passing them through the filter of the language of rights, we would be in a better position to address the political issues on the appropriate level.
Mark Tushnet, 1984 “An Essay on Rights.” 62 Texas Law Review 1363.

I find this critique of rights talk to be fascinating, and the logic here is one of the reasons why I am trying to move away from phrasing things in terms of 'rights'. I think Tushnet raises a good point here, and one that is clearly related to Marcuse's repressive tolerance. I personally am not a liberal, and am certainly not Voltaire, there is no way in hell I would 'die' for the Nazi's right to hurl rascist insults. I think this notion is something the left does need to think about, especially now.

In times of weakness it does seem that the left falls back on the notion of 'rights', to put forward its demands and to protect itself. But the question remains should the left be committed to a 'right' of free speech, or should it adopt the Marcusian solution. Of course, Marcuse's ideas attract a lot of criticism, and they are pointed towards as an example of left totalitarianism etc., though as Marcuse says :

I hope that nothing in my essay on tolerance suggests that I repudiate every sort of tolerance. That seems to me such idiocy, that I cannot understand how such an interpretation [99] has come into being. What I meant and said was that there are movements, which manifest themselves in propaganda as well as action, of which it can be predicted with the greatest certainty that they will lead to an increase of repression and destruction. These movements should not be tolerated within the framework of democracy. Here is a classic example: I believe that if, in the Weimar Republic, the Nazi movement had not been tolerated once it had revealed its character, which was quite early, if it had not enjoyed the blessings of that democracy, then we probably would not have experienced the horrors of the Second World War and some other horrors as well. There is an unequivocal criterion according to which we can say: here are movements that should not be tolerated if an improvement and pacification of human life is to be attained.

I think these notions call for a rethinking of 'rights talk' in the broader British left. Now of course critiquing this is not a new thing, as is evidenced by the dates of these works, however, the British left has never really thought through such criticisms. This is especially important when we look at the ever more repressive laws coming out of Parliament, we need to question we oppose them. Because remember even the BNP disputes its 'persecution' on the basis of 'freedom of speech', I'm not saying we should give up on 'rights' (though I probably think we should), merely that we at least give the concept a bit of thought.

Content

[B]y taking for granted that legal phenomena reflect the vagaries of class conflict within an overall structure of system-functional imperatives, the approach avoids all the hard issues and assumes what needs to be proved. The precise questions at stake are whether legal outcomes reflect systemic constraint and social struggle, and if so, why and how this occurs.
Karl Klare, Critical Theory and Labor Relations Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 61 (David Kairys ed., 1990), at 47.

The challenge Klare puts forward here is an important one, although I have outlined how the general, legal character of law is intimately connected with the commodity form, I have not show how particular legal contents are articulated. A Marxist approach to legal content takes, as a starting metaphor, the base-superstructure model, whereby economic relations determine legal relations. This takes on a two sided character, law is created by material relations, and more particularly by class struggle.

But Marxists cannot just say that the content of law is determined by class struggle. As Klare shows it is necessary to show how this occurs, how it is that class struggle is “translated” into legal content at the “legislation” stage. I think it is prudent to attempt to analyse class struggle and material relations as interdependent but separate categories, although frankly the two are inseparable. This is because class struggle’s influence on legal content requires a much more complex explanation, since there is no mechanical identity between the two.

“[T]he jurist imagines he is operating with a priori principles, whereas they are really only economic reflexes”[i]

This passage from Engels’ letter is an important one, if capable of being misunderstood. It is of my opinion that, taken literally, this quote is a bit of a simplification. We cannot say that every legal relation is a “reflex” of the economy; reflex implies an unknowing, automatic effect that does not enter into the consciousness of the legislator. It would seem to me that this does not adequately cover the genesis of legal relations. However, even if Engels is correct he fails to show ‘precisely how an economic reflex or an economic relation becomes a normative legal principle’[ii].

I think that there are some cases where we can say that a legal relation does arise as a reflex of the economic. Firstly, I think this is true of the legal form in general, in that the subject, asserting his/her abstract right, is a relation that arises naturally and objectively from commodity exchange. Secondly, and closely linked to the legal form is the constitution of contract, this again arises naturally from commodity production, as it is the purest representative of the legal form one can see how this would happen. It is not difficult to imagine that such a relation can also be applied to property law, theft etc., here the deviation from the norm automatically creates the norm, e.g. historically the thief was punished by the owner without the need for any conscious mediation by ‘the law’. That such principles are eventually elevated into formal laws is a consequence of the necessity to stabilise bourgeois relations of production. As trade grew more important the norms associated with it necessarily become formalised, due to their continual reinforcement and the necessity of their existence for a stable capitalism. We can see such a position is tenable by examining the history of the law. In Rome for instance the greatest development of stable law was constituted through the ius gentium, law which was ‘made’ so as to facilitate the trade with foreigners.

Material relationships therefore generate legal relationships, in that a deviation from the norm, a dispute, elicits a response. This response is concretely realised in the legal form, and through habitual enforcement comes to be recognised as law. This, of course, only occurs when there such a practice is widespread. A position contrary to this would hold that theft, for example, is punished because a law forbids it. This cannot be correct, in that it fails to recognise those situations where there is no “law giving” authority, here ‘the property relation’ is enforced by the subject’s personal violence. This subject is of course the primordial embodiment of the legal subject, yet here it can only be seen as law creating, in that they are enforcing their ‘property’ in the object and therefore creating this norm.

Such a norm only becomes ‘official’ law when the relations that gave birth to it are widespread and stable, and the ‘law making’ activity becomes regular. In this way a materialist account shows that a violation is what constitutes the law, and the ‘law’ only exists whilst violations occur. Imagine a law forbidding theft if nobody ever stole; such a law would not come into being for there would be no need for it. The same applies to many other ‘economic reflex’ laws, inheritance for example presupposes some kind of private appropriation (ownership is not the right word here, as I will show later). Therefore there are definitely some laws which are constituted as a reflex; these come into being as ‘official’ through their ‘non-official’ enforcement. I think this is well illustrated in the previous post I made, showing how self-defence, is constituted as a legal principle.

These laws are unconscious in that they are organic outgrowths from particular material relations, i.e. the concept of mine, implies the concept of not yours, therefore any society with exchange and the private appropriation of natural resources automatically posits violence against thieves (lest ownership be negated) and so develops property and theft laws. Yet this cannot exhaust the possibilities for legal concept. One need only look at the amount of labour legislation (both pro and anti the working class) to see that this is not a “reflex” of society’s economic structure but rather a result of class struggle (although the position is more complicated than ths, in that class struggle is itself part of the economic structure - but for simplicity'ssake (and also because I think Engels was not talking about class here) we'll keep the division).

In terms of class struggle the first thing that we can do is dismiss the notion that every law reflects the interest of the ruling class. As I wrote in the Functionalist Fallacy such an approach does not seem particularly Marxist to me and more importantly, seems to jar with reality. The only way that one can hold to the position that every law reflects the interests of the ruling class is to deploy a very convoluted logic, or to argue that every change in the capitalist system not resulting in its transcendence is in the interests of the capitalist class. The latter approach (one I can sympathise with and agree with to an extent) can appear quite mechanical and sets up a false dichotomy between reform and revolution. Furthermore, the latter approach would also have to recognise class struggle as a determinant; it would simply make all outcomes favourable to the capitalist class.

I feel that the effect of class struggle on legal content might well deserve its own post, and will require me to do a bit of re-reading; therefore I will post this as an introduction and will continue it when I can…

---

[i] Frederick Engels, Letter to Conrad Schmitt

[ii] Eugene Kamenka, The Ethical Foundations of Marxism