Gramsci and law: some scattered observations

As those who have followed my blog from the beginning (do such people still exist?) may be aware that I have a great interest in Gramsci. I tend to think that Gramsci can be very relevant to law; provided his account is significantly reworked in line with my other theoretical interests. Whilst there have been a few attempts to theorise a Gramscian approach to the law[1], most of these approaches have attempted to apply Gramsci’s broader insights on hegemony to the law (and some of his attendant comments about the relationship between the two) but haven’t really looked at some of Gramsci’s other comments. So here is a passage I’ve always found interesting:

The concept of "legislator" must inevitably be identified with the concept of "politician". Since all men are "political beings", all are also legislators. But the distinctions will have to be made. "Legislator" has a precise juridical and official meaning - i.e. it means those persons who are empowered by the law to enact laws. But it can have other meanings too. Every man, in as much as he is active, i.e. living, contributes to modifying the social environment in which he develops (to modifying certain of its characteristics or to preserving others); in other words, he tends to establish “norms”, rules of living and of behaviour.[2]

In some ways this is just in line Gramsci’s usual ‘democratic’ conception of philosophy and politics[3]. However, we can begin to see some other interesting comments. Firstly, we might take this to be an interesting riposte as against a certain vulgar form of legal positivism. Although Gramsci seems to accept that law is ‘enacted’, he nonetheless problematises this, by rooting norm production in ‘everyday life’ (a sort of ‘law-from-below’ if you like). I personally would tend to read this in a less ‘subjectivist’ fashion than Gramsci seems to, so whilst I’d agree that ‘behaviour’ is what shapes the content of norms, I’d argue that this ‘behaviour’ itself has to be problematised and situated in a material context.

In general, it may be said that the distinction between ordinary men and others who are more specifically legislators is provided by the fact that this second group not only formulates directives which will become a norm of conduct for the others, but at the same time creates the instruments by means of which the directives themselves will be “imposed”, and by means of which it will verify their execution. Of this second group, the greatest legislative power belongs to the State personnel (elected and career officials), who have at their disposal the legal coercive powers of the State. But this does not mean that the leaders of “private” organisms and organisms do not have coercive sanctions at their disposal too, ranging even up to the death penalty. The maximum of legislative capacity that can be inferred when a perfect formulation of directives is matched by a perfect arrangement of the organisms of execution and verification, and by a perfect preparation of the “spontaneous” consent of the masses who must “live” those directives, modifying their own habits, their own will, their own convictions to conform with those directives and with the objectives which they propose to achieve.[4]

Gramsci’s conception here seems to be of a ‘continuum’ of types of ‘norm-creating behaviour’. Essentially it seems to be the case that law is that type of norm positing behaviour which is furthest reaching and endowed with the greatest set of ‘instruments’ for compliance. But Gramsci further notes that the ‘spontaneous’ consent of the masses is essential to the law here. So this introduces a further complication, ‘law’ has to secure the ‘consent’ of those it governs. If it has to secure their ‘consent’ does this mean that it has to in some way reflect their social expectations? Could this link back to Gramsci’s original point? Could we argue that ‘ordinary people’ shape legislative content precisely because said content must secure their consent. This inkling of an idea is further strengthened by the rest of Gramsci’s analysis:

If everyone is a legislator in the broadest sense of the concept, he continues to be a legislator even if he accepts directives from others – if, as he carries them out, he makes certain that others are carrying them out too; if, having understood their spirit, he propagates them as though making them into rules specifically applicable to limited and definite zones of living.[5]

Gramsci acknowledges that one may remain a legislator even whilst receiving ‘directives’ from others. This seems to bring into stark relief another question why do ‘legislators’ act as they do. Although we posed this question in respect of the ‘broad’ legislators, it remains pertinent in respect of juridical legislators too. If it is true that legislators themselves are immersed in a complex web of ‘others’ directives, is it not the case that they too are influenced, and could not these directives influence the directives of others. One is here reminded of Engels’ observations:

In the second place, however, history is made in such a way that the final result always arises from conflicts between many individual wills, of which each in turn has been made what it is by a host of particular conditions of life. Thus there are innumerable intersecting force, an infinite series of parallelograms of forces which give rise to one resultant — the historical event. This may again itself be viewed as the product of a power which works as a whole unconsciously and without volition. For what each individual wills is obstructed by everyone else, and what emerges is something that no one willed. Thus history has proceeded hitherto in the manner of a natural process and is essentially subject to the same laws of motion. But from the fact that the wills of individuals — each of whom desires what he is impelled to by his physical constitution and external, in the last resort economic, circumstances (either his own personal circumstances or those of society in general) — do not attain what they want, but are merged into an aggregate mean, a common resultant, it must not be concluded that they are equal to zero. On the contrary, each contributes to the resultant and is to this extent included in it.[6]

Once we link this perspective with that of Marx and Engels in the German Ideology, we can see where Gramsci is both right and wrong. Marx and Engels allege that the idea that law is a product of ‘will’ is a juridical illusion. Instead Marx and Engels hold that the content of the law is posited through the development of social relations, which is a perspective will understands that individual ‘wills’ are mediated, shaped and articulated within a given material context.

I would argue that Gramsci cannot reach the same conclusion as Marx and Engels (and indeed many other Marxist legal theorists) precisely because he perceives law as a directive. If law is a directive, then it must be directed by someone, through their will. If Gramsci were instead to see law as a specific social form, he would not need to have recourse to this position. Instead law can be seen as colouring, but also articulating social relationships, which need to be expressed within that form. This would not exclude ‘violence’ from his analysis, but it would allow him to understand that legal violence is a specific form of violence. Furthermore, it would allow him to develop his democratic perspective on the content of the law. Precisely because a legal form embodies social relations, it cannot simply be seen as the ‘will’ of the state. Furthermore, since social relations in capitalist society are contradictory and involve conflict, the law necessarily mediates these conflicts, which perhaps helps us to explain ‘spontaneous consent’ to the law.

Furthermore, these jurisprudential misconceptions about the law might also colour Gramscian uses of hegemony to explain ‘legal struggle’. If law is understood as a form (rather than just a directive) and a socially determined form at that, then ‘legal hegemony’ takes on a new meaning Traditional approaches have stressed that counter-hegemonic struggles can be engaged in through the law. If law is just a ‘directive’ backed up with varying degrees of force then it is a neutral instrument that can be used by anyone who wants to become hegemonic. But if law is a socially determined form, then it is linked to particular social relations. If we understand law as being rooted in commodity exchange, then it no longer becomes a ‘neutral’ instrument through which hegemony is gained but is in fact a hegemonic form. Any struggle which remains within such a form would ultimately remain within the coordinates of bourgeois hegemony, and be limited as such. This alerts us to a fact that is sometimes missed by Gramscians, hegemony is not just limited to substance, it can embrace form as well, in fact it might be argued that the hegemony of form is much more powerful. This is because if the hegemony of form is ultimately maintained, then progressive elements will have the illusion of success, even while remaining trapped inside bourgeois categories. To some degree I think Gramsci was grasping towards this approach but never quite found it. But until we resolve Gramsci’s jurisprudential issues, or situate him within a more complex framework, he may be more harm than good.[7]

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[1] See, e.g. Duncan Kennedy, Claire Cutler “Gramsci, Law, and the Culture of Global Capitalism.” Critical Review of International Social and Political Philosophy, vol. 8, no. 4 (2005): 527-42 and of course Alan Hunt’s previous project was a soi disant Gramscian one

[2] Antonio Gramsci, Selections From the Prison Notebooks (2003) London: Lawrence and Wishart at p.265

[3] See, e.g. ibid p.323

[4] Ibid p.266

[5] Ibid, p.266

[6] Engels’ letter to Bloch

[7] Claire Cutler’s work (op cit) is useful here, insofar as she attempts to use Kennedy’s commodity-form analysis of the law

Thoughts on Finnis

What’s quite weird about this blog is that when it went on ‘hiatus’, I was just about to start my Jurisprudence course. This meant that all of my wonderful observations on Anglo-American legal theory (to which the Cambridge course is rather sadly confined) didn’t get made. That being said I’m still here doing my LL.M., and surprisingly enough I’m doing Jurisprudence again! Strangely enough, one of my favourite books I studied in the course was that of the (Catholic) theorist John Finnis and his book Natural Law and Natural Rights[1]. What I really like about Finnis is the way that he problematises certain positivist assumptions about legal theory as well as their substantive conclusions.

One of the key assumptions of positivist legal theory is that what they are doing is a value-free exercise. Central to this is the notion that there is no ‘necessary’ connection between law and morality. Furthermore, this seems to manifest itself in a concern for the autonomy of legal theory (from moral theory but also from other theoretical frameworks). But Finnis notes that right from the outset this is simply not tenable, his point here is a very simple one, when we look at a social institution such as law there is a wealth of ‘factual’, historical data upon which we can draw. The question is how do we form ‘concepts’ from this mass of data. How and why do we choose to select some of these element and rate them as more important than other elements.[2] In some ways this mirrors Pashukanis’ position on legal theory – in order to find a ‘concept’ of law we need to find something which differentiates it as a social phenomenon.[3]

Finnis notes that although Hart may not make explicit reference to such a position, he nonetheless seems to succumb to it:

Hart’s description (‘concept’) of law is built up by appealing, again and again, to the practical point of the components of the concept. Law is to be described in terms of rules for the guidance of officials and citizens alike, not merely as a prediction of what officials will do. A legal system is a system in which ‘secondary’ rules have emerged in order to remedy the defects of a pre-legal regime comprising only ‘primary rules’. Law must have a minimum content of primary rules and sanctions in order to ensure the survival of the society or its members and to give them practical reason for compliance with it.[4]

Evidence for this can be found in Hart’s discussion of the ‘minimum content of natural law’[5] (for which there really is very little need) and his dismissal of Kelsen’s project as not capturing the ‘function’ of criminal law.[6] In place of such a theory Finnis suggests that in order to understand a social phenomenon such as law if we understand the ‘objective’ of the practice from the viewpoint of its participants:

A social science, such as analytical or sociological jurisprudence, seeks to describe, analyse, and explain some object or subject-matter. This object is constituted by human actions, practices, habits, dispositions and by human discourse...[T]he actions, practices, etc., can be fully understood only by understanding their point, that is to say their significance or importance, as conceived by the people who performed them, engaged in them etc.[7]

Therefore, in order to find the correct ‘distinguishing’ features of a social practice we need to find a ‘central case’ of the practice and a viewpoint to adopt.[8] Analytical positivism has largely opted to adopt an ‘internal point of view’ – something more than someone who acquiesces to the law purely out of fear – but Finnis argues this should be taken further. Instead, the viewpoint that must be taken is that of the ‘good’, ‘moral’ or ‘practicably reasonable’ man[9], which of course means that moral considerations come into play in the very selection of what features make a ‘concept’ of law.

There have been a number of responses to this. The standard legal positivist line on this is put forward by Leiter[10] and Kramer[11]. The basic argument goes something along the lines that we don’t need to use moral values to select pertinent features, instead we can use values like clarity, explanatory power etc. I don’t particularly like this response, as I don’t really think you can really select significant features. I think the firmer objection is simply to say that you only need to appeal to notions of ‘social function’ or human behaviour, which I don’t think we have to call ‘moral’. But actually, I think it has to go further, and this is where Pashukanis comes especially in handy. As any regular readers of my blog will know (chortle!) one of Pashukanis’ key observations is that ‘law’ has to be distinguished merely from ‘regulation’:

Comrade Stuchka, from our point of view, correctly identified the problem of law as a problem of a social relationship. But instead of beginning to search for the specific social objectivity of the relationship, he returned to the usual and formal definition‑although a definition now influenced by class characteristics. In the general formula given by Stuchka, law figures not as a specific social relationship but, as with all relationships in general, as a system of relations which corresponds to the interests of the ruling class and which protects it with organized force. Accordingly, within these class boundaries, law as a relationship is indistinguishable from social relations in general, and Comrade Stuchka is therefore not in a position to answer Professor Reisner's venomous question: how do social relationships become legal institutions, or how is law converted into itself?[12]

So, in order to ‘find’ a ‘concept’ of law, it is not enough to merely look at law’s function of social regulation. Therefore, Pashukanis – quite correctly argues – that we have to go further. We have to say that law is a specific type of social regulation. This notion of a specific type leads us onto the notion of law being a specific form or character assumed by social regulation:

The situation is no different with the second apparent tautology: law regulates social relationships. For if we exclude a certain anthropomorphism inherent in this formula, then it is reduced to the following proposition: under certain conditions the regulation of social relationships assumes a legal character. Such a formulation is undoubtedly more correct and, most importantly, more historical.[13]

But, once we talk about law being a specific type of regulation, we need to understand what the specific form of regulation is. It is perhaps here that Finnis attempts to spring his trap – surely this must be where we make a moral appeal. Well, I would say no. Instead I would argue with Pashukanis that we need to understand what types of social relationships generate legal regulation, and this requires a broader historical and theoretical approach. We have to situate the emergence of the legal form in its material and historical context. If we can find sufficient historical and social connections then we will be able to select significant features for our legal form.

Pashukanis argues that there is a historical connection between the commodity form and legal form. Thus, when disputes arise within the commodity-form, a form of social regulation has to arise to regulate such disputes. But since commodity owners are formally equal, abstract individuals this regulation must recognise these facts. Hence law is a form of social regulation between abstract individuals – this is the same conclusion that Finnis comes to (although he argues it morally – individual, autonomous life plans and all that jazz[14]), without resorting to the same form of moral argument. I would argue that Finnis’ approach might come unstuck for a number of reasons. Firstly, it doesn’t answer the question of why a form of regulation arises to serve a moral purpose. Secondly, his reliance of ‘human goods’ tends to ignore where these good have come from. If it is the case that they are a priori then law (as he describes it) would have always existed – it didn’t. If they come about through human practice (and Nigel Simmonds makes an excellent argument then they have), then this surely commits Finnis to the same sociological inquiry Pashukanis makes.

Thus, I would agree with Finnis to an extent. Clearly our formation of ‘concepts’ cannot take place in an isolated vacuum. But, neither – does it seem – do our guiding ‘values’ in this respect have to be moral. Pashukanis noted of economics that ‘[e]very economic theory worthy of the name must have its basis in some sociological conception’[15], I think this holds good for legal theory too – a sociological conception is what gives shape to the categories of analysis. But I would go further, and argue that any theory of necessity makes implicit sociological claims, precisely because of the way that concepts form. This is why the Marxist approach is so useful, because it honestly and openly makes it historical claims, and understands that the presuppositions of its concepts are not historically fixed.

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[1] 2005, Oxford: Clarendon Press

[2] Ibid, p.4

[3] General Theory of Law and Marxism, p.62

[4] Finnis, op cit, p.7

[5] Hart, The Concept of Law, 1994, Oxford University Press, p.193-200

[6] Ibid, p.39

[7] Finnis, op cit., p.3

[8] Ibid, p.9-18

[9] Ibid., p.16

[10] Leiter, Beyond the Hart Dworkin Debate, (2003) 48 American Journal of Jurisprudence 17

[11] Kramer, In Defence of Legal Positivism, 1999, Oxford: Clarendon Press

[12] Pashukanis, Selected Works, p.62

[13] Ibid, p.58

[14] Finnis, op cit., p.59-134

[15] Pashukanis, op cit, p.244

'War'?

So in fact my triumphant return was somewhat less of both than I imagined it would be (it was not particularly triumphant and the rumours of a return were greatly exaggerated) that being said I think I'll make a conscious effort to post a bit more on both of my homes. Anyway, what I think I'll try to do now is just to post the occasional little tidbit and thought, in the hope that I can once again garner some readers. I was moved to post by an interesting article today, by Frederic Megret. The article was written in 2002 and is entitled 'War? Legal Semantics and the Move to Violence'. The article is a somewhat prescient account of how Megret thought the use of the term 'war' would affect the US global strategy.

Megret's starting contention is that although the term 'war' may not be used in its technical legal sense it nonetheless has implications:

If one appreciates the power that is in words, the fact is that, for all intents and purposes, ‘war’ as a word is likely to influence legal debate on the use of force – and statesmen know this better than any. In view of the previous care taken not to use the ‘W’ word, one cannot help thinking that there is more than simply a quantitative difference between the loosely and variously labelled skirmishes of the past, and the embracing of a word that belongs more to history books than to legal ones.
(p.4)

This starting point is a useful one, insofar as it manages to strike a good position between ignoring the legal implications altogether and making taking a legally imperialistic view, whereby particularly actions are saturated with 'legality'. Megret's substantive argument begins with the de rigeur reference to Schmitt's 'Concept of the Political'. Thus, in the aftermath of the 9/11 attack there was a traumatic gap owing to their lack of an explicit 'author' (p.6); this gap was fulfilled by the typical act of 'enemy positing'; which is - for Schmitt - the ultimate function of the sovereign is to designate the friend enemy distinction (which leads to war, which leads to the exception). So the response to the 9/11 attacks internally is a reassertion of sovereign power (and the political order), Megret's inquiry is how this will be manifested externally.

The first, vitally important, point to note here is that Schmitt typically talked about his enemy as the 'public enemy' (Concept of the Political, page 28) viz. the state, but of course the response to terrorism is directed against terrorist 'networks' not states, states are only an incidental target here (or so the reasoning goes). These Schmittian presuppositions are mirrored in international law concerning self-defence, the central thrust of his article is how this dynamic plays out.

It is worth briefly noting here some of the basic principles of self-defence in international law. Essentially, self-defence is activiated when one state makes an armed attacked upon another state; the reponse to this armed attack must be both necessary and proportionate. Whilst we are all willing to accept that there has been an armed attacked, the problem of necessity and proportionality causes a problem. Whilst this clearly includes force used to repel armed attacks, responses to such attacks - might often look like 'illegal' armed reprisals. In response to this there are two routes:

• Firstly, one can argue that self-defence includes the use of force to pre-empt an armed attack. Whilst it is clear that self-defence has always included force used against an imminent threat, this argument has to be much broader. It is not usually possible to know if a threat is imminent or not (since it is carried out by unpredictable terrorist networks), what must therefore be assumed is that, whilst terrorists exist, there is always an 'imminent' threat, and so the use of force is always on the agenda.

• Secondly (and linked to the above point) one can characterise the 'war' on terror as continuous, one which began with the earlier terrorist attacks and continues to this day. Again the result of this is that any 'self-defence' can be continuously exercised.

Both of these outcomes lead to the same result, that self-defence loses the 'time restraint', meaning there is no time limit to its exercise. The second problem with the self-defence rationale, is that self-defence can only be exercised against states. This is true both factually and legally. Factually, because terrorists always reside in an area which is under the jurisdiction of some other state, therefore any attack on 'terrorists' is by consequence an attack on some other state's territory. Legally, this is so because any 'armed attack' to which a state is entitled to respond must be in some way attributable to another state.

This problem of imputing the behaviour of non-state actors, to states becomes crucial in the 'war on terror'. There are a number of ways in which responsibility can be imputed in international law, I don't intend to go into them here, but we can say a few things. Firstly, harbouring people explicitly isn't a way of incurring international responsibility, it's a breach of a direct obligation under the Friendly Relations Declaration, but it doesn't mean their conduct becomes your own. Secondly, 'control' and 'endorsement' are modes of imputing responsibility, but there have been few instances of 'terrorist supporting' regimes having active control (particularly over Al-Qaeda) or overtly endorsing such attacks. Finally, supplying terrorists whilst again a direct breach of international obligations it only imputes responsibility if there is direct control (something the US has often used to its advantage).

In order to actualise its 'war' policy, the US has been forced to argue that harbouring, supplying or even being lax on terrorists is sufficient to incur responsibility on the part of a state; as Megret notes:

But if a right to self-defence were exercisable on the basis of half-disclosed evidence against any country that had at one time or other been lax on ‘terrorism’ (assuming, of course, that one could agree on a definition of terrorism), it is not difficult to see how one might be confronted with a war that is not only infinite in time, but also risks being infinite in space, extending potentially to all corners of the earth.
p.24

What Megret therefore predicted was that the language of 'war' means that any 'war' on terror necessarily implies violence unlimited by time or space. To return to the Schmittian theme the exception would become the norm. He saw this reflected in the usage of the terms 'Infinite Justice' and 'Enduring Freedom'. This prediction remains, to this day, strikingly accurate and penetrating. Furthermore, as Ranciere noted the effects of this become dialectical. What starts off as a response to stabilise the internal order (as reflected in civil liberties etc.) is pushed into the external sphere (as reflected in war), rebounds back into the internal sphere, the infinite exception in the shape of war becomes the infinite exception in respect of internal political life.

Historical Materialism Conference - Part 2

Wow. Apparently my notes on the fisrt plenary session were pretty long. The notes for the next session 'Islam and American Imperialism' are a bit less so. Not becuase the talks weren't interesting, but because I'd already sat through one long session and the lecture theatre was rather sophorific, owing to the temperature and layout.

The backdrop to the talks is the increasing resistance to American imperialism and the lack of a clear socialist alternative to it. This leads - on the part of the Socialist Register, who organised the plenary - to a crisis of agency. It therefore becomes necessary to analyse the new movements that have arisen so as to conceptualise the current conjuncture.

Gilbert Achar - Imperial Uses of Islam
Achar began his talk by examining the 'clash of civilisations' paradigm, one which he described as pervasive on both a conscious and unconscious level. This view basically suggests that Islam and the West are engaged in a clash of civilisation and there can be no middle ground between them. This view is common to both Western Islamophobes and Islamic fundamentalists - who tend to characterise Islam and 'the West' is implacably in conflcit with one and other, and view this conflict as defining our current age.

But Achar notes that this is not the view of Western governments. Western governments tend to differentiate (in their rhetoric) between 'good' Muslims and 'bad' Muslims, they don't view things as a clash with Islam but a clash within Islam. Achar also argues that Huntington himself doesn't hold with the way in which his theory has been interpreted. Achar argued that Huntington is in fact a 'global multiculturalist', insofar as he thinks it's a good thing to have different 'civlisations' existing worldwide, he opposes mutliculturalism nationally because he wants to preserve Western culture in its heartlands. Furthermore, Huntington dismisses universalism as imperialism (in the perjorative sense) and argues that a project of imposing Western values will end in disaster. In other words Huntington appears as a traditional realist.

Achar argued that it is this realist Huntington that has informed US policy towards Islam. His first (and very good) example is the United States' alliance with Saudi Arabia, a state which is in fact the US' oldest ally in the Middle East. It has historically (and still does) served as the cornerstone in the US global stratey, particularly in combatting anti-imperialist nationalism. But of course Saudi Arabia is probably the most 'fundamentalist' state in the whole of the middle-east. In fact the US supported Saudi fundamentalism in Afghanistan. He further notes that plenty of fundamentalists were willing to colloborate with the US invasion of Iraq.

The point for Achar is that the US has used fundamentalism for its own ends and fundamentalism has often been (and is still) willing to colloborate with US imperialism when they had the chance. He then listed the examples of the Muslim Brotherhood and assorted other instances.

Achar's basic point here was that at best we can call Islamic fundamentalism 'anti-Western' but it is only sporadically and inconsistently 'anti-imperialist'. This of course has implications for how Marxists should approach Islamist resistance to US imperialism. At the very least when struggling with them it is necessary to view them with 'distrust' and attempt to spread our own ideas within their ranks.

One person's attempt to critique Achar's approach was based on the argument that notwithstanding our 'subjective' opposition to the domestic policies of the fundamentalists, they might nonetheless be 'objectively' anti-imperialist, since they are fighting imperialism. I wasn't there was the response, but surely Achar's argument is not about the political programme's of Islamists, it's about their record of supporting imperialists when they think it is to their advantage. Such a position of course means that while they may be 'objectively anti-imperialist' in a given instance the question is whether they will consistently hold this position. Achar's analysis seems to suggest they won't (and also that the imperialists won't consistently target them either) so this has to be the position to proceed from.

Bashir Abu-Manneh
For my money Abu-Manneh's speech was probably the most interesting of the lot, particulary because he engaged in some interesting theoretical anaylsis. Abu-Manneh's speech was composed of three arguments:

• The Palestinians have been in a state of seige since 1991
• The Palestinian elite has collaborated with the Israeli state
• The above two factors have led to the emergence of a specific form of resistance, one which has entrenched militarisation and depoliticisation

The first thesis is simple enough to understand. Israel has continuously interevened in the occupied territory, denying the right of freedom of movement throughout the West Bank and Gaza strip and within Israel itself. This process has culminated in the creation of the apartheid wall, which has formalised the process by physically closing off vast swathes of the West Bank. This - of couse - is all very uncontroversial stuff. But Abu-Manneh further argued that this has destroyed any meaningful sense of spontaneity amongst the Palestinians. It has tended to eliminate any proper sense of the Palestinians as a collecitive entity who are capable of collective action. Palestinians have been alienated into individuals, families etc.

The second thesis is another one which I think is uncontroversial. It seem incontrovertable by now that the Palestinian Authority has collaborated with and legitimated the occupation - corrupting and nearly destroying the Palestinian's national aspirations. Abu-Manneh related an anecdote whereby the PA would always be there to stop attacks on settlers but would be mysteriously absent when there was an Israeli attack in the occupied territory. In line with this Abu-Manneh argued that the PA has consciously undermined any attempts to organise outside of the PA. To top it all off, when the PA did stop collaborating it was attacked by the Israeli authorities.

The combination of the two above factors leads to Abu-Manneh's third argument. The point of these factors is that they have pushed Palestinian strategy towards militarisation. Firstly, this is because any meaningful political resistance seems impossible. The Palestinian's traditional representation - Fatah - has been collaborating since Oslo. Furthermore, it is difficult - if not impossible - to develop political positions and mobilisation when freedom of movement is physically restricted. Furthermore, political action seems so difficult precisely because the Palestinians have lost their faith in their own capability for collective action. This depoliticisation means that solutions based on mass action seem impossible, which naturally seems to lend support to the idea that small acts of military resistance are necessary.

But it is not just the content (military acts) that are shaped by these social conditions, it is also the form. This is because the small military action per se is - in some respects - a collective political act. This would certainly seem to be the case when one considers the links between militants and political parties. The ultimate culmination of the tendency towards atomisation is the emergence of the suicide bomber as a 'weapon' in the struggle against of Israel. This of course makes a lot of sense, because the suicide bomber is the precisely opposite of a collective political struggle. Thus, the tendency towards atomisation and depoliticisation, combined with the concomitant process of militarisation tends to produce the ultimate individualist military act - the suicide bomber. Although, as Abu-Manneh points out, we shouldn't exaggerate the degree to which suicide bombing has become the norm, and ultimately as a tactic it has proved counter-productive, since it tended to fit the Palestianian struggle into the discourse of terror.

What I really like about this analysis is the way in which it traces the particular configuration of Palestinian resistance back to the social conditions in which it operates. This is a much better position to take than just 'condemning' particular forms of resistance without understanding why they gain popularity or the opposite but related one of just saying 'it's understandable because they endure so much'. It's therefore good to see someone take a materialist position on this issue. What's also interesting is the degree to which Abu-Manneh's position dovetails with Lukacs in History and Class Consciousness. This is because capitalism itself has a natural tendency towards depoliticisation (reification), alienation and fragmentation, of course these tendencies are often counteracted.

I think invoking Lukacs is useful for another reason. Abu-Manneh's preferred solution to the problem is to replace this strategy of individualised militarisation with one of collective self-mobilisation. Well, this is fine in practice, but the whole point is that the situation Abu-Manneh outlined has already shown precisely why this collective self-moblisation is going to happen, and certainly not spontaneously. This is where Lukacs is especially relevant. Because Lukacs core insight is that the proletariat can't just spontaneously organise against capitalism. What is needed is something that can take the viewpoint of the proletariat but do so in a way that transcends the reifying tendencies of capitalism. That is to say a vanguard party. In the Gramscian analysis this Party is composed of the organic intellectuals who arise from the class in the midst of struggle. And this is what Abu-Manneh's analysis really seems to lack - the need for a conscious organising element of the Palestinian people able to mobilise them against the Israelis. But of course the other problem is that the people who you would expect to be able to fulfil this role in Palestinian society are - as Abu-Manneh argued - completely compromised. This - perhaps - is why he didn't delve into this question, as it is one to which there doesn't seem to be much of an answer.

Unfortunately I missed the last talk because I needed to get home, so I can't comment on that. More stuff will follow over the rest of the week. This will reveal how horribly theory-obsessed I am, however, and no doubt I will be much looked down-upon for it.

Cross posted to the Lair.

Although I haven't updated this blog in a while I hope some of my old readership at least have me RSSed. This time I actually plan on keeping the blog going for real. Most of the posts I make here will also be crossed posted to my other abode The Red Squirrel's Lair, which you should check out anyway, not least because of my partner in crime's insightful (and slightly more frequent than mine) posts.

Historical Materialism Conference 2007

As you probably already know, this weekend was the annual Historical Materialism Conference, which I had the good fortune to attend. Unfortunately I missed Friday's sessions (prior commitments) which meant I didn't get to see Zizek (damn, damn, damn, damn) but the rest of the Conference was pretty damn good. The first thing to say is that despite the current poisonous climate on the left (and particularly as between the SWP and everyone else) the atmosphere at the Conference was really good (bearing in mind there was a mix of people from different traditions there), everything felt very comradely (although of course the interventions were occasionally slightly cutting) and everyone seemed to get along well enough. So, as is usual in the old blogosphere I thought I'd give a [not so brief] summation of those sessions which I did attend.

Saturday

I rolled in a bit late on Saturday, so I missed the first session of the day. Not that I would really have listened to it much. The next session I attended was on 'Marxism, Pashukanis and the Law'. In this session I actually 'presented a paper' on Pashukanis, Legal Nihilism and Legal Strategy, which I will probably put up here at some time (once I've cleaned it up a bit - the notes were really only intended for my consumption only). There weren't too many people here (although there were a few), which was kind of predictable, as law is not a particularly glamorous topic for Marxist analysis. There were two other contributors aside from me - Andreas Harms presented a paper on 'Commodity Form and Legal Form' and Bill Bowring presented a paper on 'International Law, Lenin and Self-Determination'. Both of the papers were of high quality and we got some good discussion in as well. It feels kind of weird summarising this session, so I'll leave it for the atendees to do so (hopefully some of them blog).

There weren't any more 'sessions' for the day, as it extended into a 'meet the editors' session and a lunchbreak, I did have some pretty interesting conversation during this period, so it was all to the good.

The next 'session' was a plenary one, featuring some rather big hitters, the talk was on 'Neo-liberalism and Neo-imperialism' and the speakers were Alex Callinicos, Robert Brenner and David McNally.

Robert Brenner
The central thrust of Brenner's argument was the relationship between the war in Iraq and the US' geopolitical strategy. Brenner argued that the Iraq war was a puzzling phenomenon which represented a real rupture with previous US strategy in content if not form. Brenner argued that during the 2000 election no one would have predicted that the Iraq war would come around in the time that it did. The Republicans seemed to have a fairly low-key foreign policy, certainly not the type of messianism that seemed to characterise them post-9/11. Furthermore, it was argued that the US had fulfilled its three key strategic aims (which it had held since World War 2); these aims were

1. To freeze and weaken 'communism', third world statist nationalism and statism more generally so as to allow the free movement of [US] capital throughout the globe.
2. Consolidate US hegemony in Japan and Europe - depriving them of their ability to disrupt the framework of international capitalism; key to this aim was depriving them of their military power and compensate them for this by providing them with security.
3. As a consequence of the above two aims the US intended to implement a neo-liberal agenda throughout the world, with all the consequences thereof

Brenner argued that the US was willing to do this since US capital was so powerful that it didn't require the formal protection of the US state. So on this reading the US had - according to Brenner - recognised the essential validity of the Leninist critique of imperialism - namely that monopoly-capital imperialist states vying for domination of the world's resources inevitably culminated in war, which was not conducive to the continued position of the US and global capitalism. To combat this the US entered into a 'radical Kautskyite' project of restructuring the global situation as above - the only question was whether the US was disciplined enough to continue enforcing the consensus.

All of this was encapsulated in the term 'New World Order' as used by Bush et al. This meant that there was a new approach to the international use of force:

• Don't use force unless you can use massive amounts of force
• Other conflicts should just be 'policing' or assymetrical conflict
• Avoid committing ground troops if you can - use cruise missiles, bombs etc.
  

All of ths as summarised in a phrase by Madeline Allbright that 'military force' but not war should be used (which got a big laugh from the audience, but really the distinction isn't as ridicoulous as it first, certainly international law tends to distinguish between the use of military force and an armed attack or war). This was basically a neo-liberal form of imperialism and one in which generally states toed the line (the thrid world accepted the neo-liberal consensus the [not yet] axis of evil was going to the table, etc.).

So US policy in Iraq has to be understood in relation to this. It is therefore necessary to view US policy towards Iraq in this context. What the context what seem to suggest is that no US adminstration would really want regime change in Iraq, as this would be internationally counterproductive - it would be costly, destabilising and could whip up Arab resistance across the Middle East. Futhermore, the Shia could not be trusted to serve as a counterweight to Iran. This is why Saddam was not overthrown following the first Gulf War and a policy of 'containment' was pursued in relation to Iraq.

Against this backdrop the recent war in Iraq does seem to be a break (and to a lesser extent so does Afghanistan). Brenner's next task is to explain how this could happen. Brenner traces the strategic rupture to the ascendence of the neo-conservative movement within the American state apparatus and their huge influence within the State Department. It was only with 9/11 that they were able to gain control over foreign policy.

Brenner then gave an internal examination of this movement. According to Brenner the key theoretical position for the neo-conservatives is the 'fungibility of force'. By this they mean that American military domination can be used to do anything, and the neo-conservatives were interested in 'harvesting the fruits of military dominance'.

It is then necessary to understand how the neo-conservatives gained this power. Brenner roots the neo-conservative movement in the Republican far-right, who had taken over Congress in 1994. They had always had trouble gaining power and were only able to do so by pushing the foreign policy aspect. Once they had gained power they acted as a 'Shadow Cabinet' that pushed Clinton into all sort of things (like passing the Iraq Liberation Act) but they could only achieve limited success and certainly couldn't impose their domestic agenda. But 9/11 changed all of this and gave the neo-conservatives the pre-text they needed to actualise both their domestic and international agenda.

Brenner's analysis was pretty damn interesting (he's also a very good speaker). I quite liked his focus on concrete, 'micro' US politics and the way in which they interact with the global sphere, a Gramsci quote seems particularly relevant here:

Do international relations precede or follow (logically) fundamental social relations? There can be no doubt that they follow. Any organic innovation in the social structure, through its technical-military expressions, modifies organically absolute and relative relations in the international field too. Even the geographical position of a national State does not precede but follows (logically) structural changes, although it also reacts back upon them to a certain extent (to the extent precisely to which superstructures react back upon the structure, politics on economics, etc.). However, international relations react both passively and actively on political relations (of hegemony among the parties). The more the immediate economic life of a nation is subordinated to international relations, the more a particular party will come to represent this situation and to exploit it, with the aim of preventing rival parties gaining the upper hand (recall Nitti's famous speech on the technical impossibility of revolution in Italy).
Gramsci, The Modern Prince

So I actually thought that Brenner's analysis was a niecly dialectical one, similar in the way that Gramsci presented it. I also see nothing a priori wrong with the ascription of such a decisive role to a 'subjective' factors. Especially as these subjective factors are in a dialectical relationship with the objective situation (Lukacs comes immediately to mind on this point). This isn't to say that I think Brenner is entirely right, but I don't think we dismiss his analysis out of hand.

Alex Callinicos
Callinicos delivered another pretty awesome speech (you will hear this a lot, because I thought the quality of this session was absolutely stellar, even if the sweltering heat of the lecture theatre left much to be desired!). Alex presented his argument as one diametrically opposed to Brenner's. He argued that Brenner had only given us description, but no analysis - we can't just see Iraq as a random event we need a larger perpective and so must look at the historical connection between liberalism and imperialism.

Callinicos noted that the US has always eschewed formal imperialism - and continuously legitimated itself with reference to this. He looks back to the 'imperialism of the open door' - in which the role of military power was only to enforce the conditions of a liberal world economy, this of course should not - as a rule - involve the use of ground troops. The predecessor of this type of imperialism was the 'imperialism of free trade' practiced by the British Empire in the 19th century and Britain relied heavily on informal empire in Canada and China. The US has a consistent, radical version of this.

Following World War 2 the US dominated the advanced capitalist world and built up a series of institutions, but this liberalism was only ever transnational. After the collapse of the Soviet Union the US was able to convert this transnationalism into global liberalism. This means that for Callinicos there was no fundamental break in the project - and it was one vigorously pursued by the Clinton administration. For Callinicos therefore, Clinton was the true pioneer of the fungibility of military power.

But of course hegemony is always about force and consent, and they are always combined in different ways. The manner in which these methods are combined is what differentiates the neo-cons from Clinton. Thus, for Callinicos this is a matter of quantity not quality there is no rupture. Callinicos further argues that the Bush administration was radicalised post-9/11 and that in this context the neo-cons cannot be considered 'mad'. He argues that in the face of the increasing threat of China's economic power a rational argument could certainly be made out for the US using its only comparative advantage in this conjuncture that of military force. Iraq was therefore important because rising captialist powers were dependent on its oil and the US needed to assert this.

The question Callinicos thinks we need to ask is 'what are the interests of US imperialism'? When we do this we understand that the US ruling class is complex and the best strategy is always a contested question - we have to look at te question of the imposition of ideology on a world scale, and the geo-political is central to this.

All well and good - but I think Brenner responded pretty well by saying 'we don't really disagree on much'. I think this is probably the case - all they really disagree is whether there is a qualitative or quantitiative difference between Clinton and Bush (which sounds big but - meh - scales). Brenner just helps us to understand why it is that one side won the argument. But I'd actually go further than this. Callinicos seems to argue two contradictory things. On the one hand he argues that there is no rupture between Clinton and Bush, but on the other hand he seems to argue that China posed a qualitatively new threat to the US. Because of course post-WW2 there has been no capitalist power that posed a threat to the US in the way China has (although I guess the state-cap people would argue the USSR was a rival capitalist power, so maybe change the reference to post-1989?), since every other 'threat' was pretty damn friendly to the US, and were happy to allow the US maintain Pax Americana. So, on this reading, Alex seems to be arguing that the emergence of China has disrupted the 'radical-Kautskyism' of the US, since it doesn't accept the US' managerial role. But surely this would indicate a rupture, in line with Brenner.

David McNally
Although I really liked the first two talks David McNally's was far and away my favourite (I think much of the audience agreed with this too). In contradistinction to the first two McNally's position was to start from a general theoretical analysis and proceed from there. So for McNally the central point of depature was that of Marxist value theory. We need to begin from this perspective - so McNally argues - because we live in a world of alienated social relations and theory must de-fetishise them.

McNally's talk revolved around 5 arguments:

• Neo-liberalism involves radically extending and intensifying the commodity form
• This is achieved through 'monetarising' more and more aspects of human life
• This involves the extension of primitive accumulation
• This occurs on a variety of levels and entails imperialism
• World money becomes decisive

So McNally's basic argument is that the phenomenon we call 'neo-liberalism' must be understood as the extension of the commodity form - not a conscious project of the capitalist class but a result of the value form itself. It is fundamentally connected to new forms of discipline, and is primarily exercised through the discipline of money - the IMF, the World Bank etc. This leads to a reversal of the partial decommodification of labour.

Dispossession is also fundamental to this (hence the importance of primitive accumulation) because land has to be converted into capital. But since this land is occupied by other people, they have to be turfed off. For this reason there is a nexus of land, violence and dispossession - which gives rise to new enclosures and modalities of class struggle arise against this. Furthermore, ecological disaster is incorporated into this, so disasters which displace people are taken advantage off (Hurricane Mitch was used to get rid of the Honduran indigenous population).

McNally further linked this process to militarisation - war is of course central in 'clearing out' areas of land, be that through death or fleeing. All of this has also led to a great rise in the industrial reserve army, which has grown massively as people have been forced out of their land in the process of dispossession.

McNally went on to criticise the approaches of David Harvey and Rosa Luxemborg, who he thinks failed to properly elaborate the 'laws' of this economic process - meaning they cannot properly theorise it. Instead they often remain at the level of (very powerful) description. [He also made a really interesting point about dialectics and subjects positing their own presuppositions - but I'll ignore that]. Further, his problem with Rosa's approach is that she assumes this form of imperialism requires permanent occupation, which is clearly not the case, as the discipline of money suffices to compel national elites to implement dispossesion.

McNally then went on to focus heavily on what he called 'world money'. By this he means the currency which serves as the 'global' medium for exchange. He argues that there has beeen an intensification of unequal currecny exchange, with the global South losing out on this. But the concept has been under theorised, and it is important, because the state that issues 'world money' will get the surplus on exchange, and so can appropriate value. This means that different nation states struggle over who is to issue world money.

McNally argues that this can be illustrated by the Euro project in the European Union, where the states of the European Union have tried to create a currency with all the characteristics of world money. McNally describes this as a form of inter-imperialist rivalry and denies that such rivalry need be militarised.

McNally ended with the argument that we need to emphasise anti-neo-liberalism and anti-imperialism highlight the need for a de-commodification of labour - that is to say the socialist revolution (which earnt him a rousing cheer).

What I really liked about McNally's talk was the way that he was able to articulate linkages between his theoretical paradigm and our practical trajectory. His analysis does explain rather well a lot of contemporary phenomena in a basic theoretical way, and I think this is to be welcomed.

Ultimately, I think all of these talks worked well, and frankly if we could have combined them all into one big talk it would have been awesome. So David sets the economic-theoretical scene for us, Alex embedded it in a broader historical context and Bob examined the specific way in which ruling classes responded to the broader need for the expansion of value. Each therefore had the merit of contributing to a totalising perspective, and with a little work we could trace the analysis of value directly into Alex's and Bob's talk. Of course this is the inherent weakness of the short talk format, but nonetheless I was impressed by this session.

OK, I've clearly gone on long enough, so I'll stop now, and do something else. Tomorrow (maybe?) I want to at least outline the talk on 'Global Flashpoints' that was also on Saturday, particualrly as I felt it offered a really interesting perspective on the Palestinian resistance.

Cross posted here.

The Antinomies of Lon Fuller?

So yeah. Whilst I know that Fuller isn’t in my normal range of ‘critical’ theorists I am – as I said – giving him a good read. Enjoyable as he is I seem to detect a little bit of schizophrenia within his ‘concept’ of the law. On the one hand Fuller stresses the ‘internal morality of the law’, and notes that ‘a sufficiently gross departure from the principles of legality … would result in something that is not simply bad law, but not law at all’[1]. Furthermore, he expresses his general approval of a lot of Pashukanis’ work, and is at pains to point out the complexity of the law and its operation. Yet on the other hand he defines the law as “the enterprise of subjecting human conduct to the governance of rules”[2], the important thing to note here is ‘enterprise’. This is critique worthy, and I’ll go more in-depth later.

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[1] 197

[2] 122

Fuller reads Pashukanis/Marx meets the Liberals

So I’m back from another hard term, and somehow managed to snag a first, I was fairly chuffed, although now it’s back home for the grind. So, once again this blog will become a bit more active, especially since my article on Pashukanis and the Realists is [mostly] finished, bar a few little touch ups. So as of late I haven’t actually been reading that much (I think the last ‘big’ thing I read was Koskenniemi’s From Apology to Utopia – very good it was now). However, owing to a feeling that I need to be a wee bit more ‘down’ with theoretical orthodoxy and in preparation for next year I’ve been reading Fuller’s The Morality of the Law.

The book is fairly interesting – If somewhat Anglo-American and liberal – and it’s a fairly easy read. What particularly grabs my attention is Fuller’s appreciation of Marx and Pashukanis. I’ve always known that Fuller had an appreciation of Pashukanis (see e.g. ‘Pashukanis and Vyshinsky a Study in the Development of Marxian Legal Theory’[1]). What is really striking is how an arch liberal like Fuller (and someone who worships respectfully at the altar of the ‘rule of law’) is able to call Pashukanis ‘the only Soviet thinker who can be said to have made a distinctive contribution to social philosophy’.[2]

However, what Fuller shows is that when one read Marxists they can be read in a ‘liberal’ one-sided way, so as to entirely negate their real content. Fuller agrees with Pashukanis’ central contention that there is an essential connection between ‘the law’ and exchange. He examines the conditions that he thinks are prerequisites for the fullest flowering of ‘duty’ and reciprocity; namely:

• Voluntary relationships
• Equal performance
• Fluidity of social roles

For Fuller these conditions are best actualised in ‘a society of economic traders’[3], and therefore ‘it is only under capitalism that the notion of the moral and legal duty can reach its fullest development’.[4] Of course, this is in some respects an entirely correct representation of Pashukanis’ position as regards law. For Pashukanis, the legal form is intimately bound up with commodity form, serving as both its effect and cause. But the problem is that this is only one side of the story.

What is evident from Fuller’s criticisms of Marx is that he is clearly not properly acquainted with Marx. Thus for example Fuller quotes Philip Wicksteed:

We enter into business relations with others, not because our purposes are selfish but because those with whom we deal are relatively indifferent to the, but are (like us) keenly interested in purposes of their own, to which we in our turn are relatively indifferent … There is surely nothing degrading or revolting to our higher sense in this fact of our mutually furthering each other’s purposes because we are interested in our own … The economic nexus [that is, the nexus of exchange] indefinitely expands our freedom of combination and movement.[5]

Fuller thinks that had Marx ‘could have had this passage before him … the world might today bear a very different aspect for all of us’.[6] But of course this is a somewhat ridiculous claim. To imagine that Marx had never heard – nor considered, nor agreed with – such a claim, whilst managing to critique classical political economy is faintly ridiculous. The fact of the matter is that Marx perfectly well understood this – but he also understood that this was a one sided liberal view of capitalism that equated it purely with exchange. Let us consider Marx’s remarks a propos exchange in Capital: Volume One:

This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to, is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other, is the selfishness, the gain and the private interests of each. Each looks to himself only, and no one troubles himself about the rest, and just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.[7]

It would seem therefore that Marx perfectly understood the freedom and equality inherent in the exchange relation [notwithstanding Fuller’s lack of recognition of such a fact]. But Marx is not content to remain within such a limited framework, for as he notes:

On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the “Free-trader Vulgaris” with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but — a hiding.

Pashukanis puts it wonderfully in his Preface to the second Russian Edition of the General Theory, noting that ‘‘the republic of the market’ masks the ‘despotism of the factory’’.[8] This is the tension that is inherent within capitalism, on the one hand it is based on individualism, yet on the other hand it rapidly socialises production. This is manifested more specifically in the opposition between ‘individual equality’ on the one hand and ‘subordination to discipline’ on the other, as is shown is the stunning piece written by Ian Grigg Spall and Paddy Ireland (who unfortunately seem to have written little else that I am interested in). The point is that the liberal only focuses on exchange, ignoring the relations that lie ‘beneath the surface’.

What should be noted immediately here is that the liberal is not ‘wrong’, the equality given by the commodity form is not ‘illusory’ or a mere ‘mask’. It has an important real existence that is necessary for the generalisation of capitalism. The point made here is a dialectical one, capitalism is both individualistic and ‘collectivist’, egalitarian and inegalitarian[9], the two aspects are inseparable from one and other. One might attempt to defend against this point by noting that the ‘socialisation’ carried out under capitalism is conjunctural and by no means organic to the commodity form. Yet, as Marx’s analysis in all three volumes of Capital shows, this is simply not the case, the exchange relationship develops into full-blown capitalism.

It is this manner that one immediately recalls Fredric Jameson’s comments on the Communist Manifesto:

In a well-known passage Marx powerfully urges us to do the impossible, namely, to think this development positively and negatively all at once; to achieve, in other words, a type of thinking that would be capable of grasping the demonstrably baleful features of capitalism along with its extraordinary and liberating dynamism simultaneously within a single thought, and without attenuating any of the force of either judgment. We are somehow to lift our minds to a point at which it is possible to understand that capitalism is at one and the same time the best thing that has ever happened to the human race, and the worst.

Fuller’s blindness to this essential aspect of Marx’s work leads him to misunderstand Pashukanis and the implications of his work. Though, it is probably accurate to say that Pashukanis did not examine the ‘bad’ sides of the legal form as thoroughly as he could he certainly made several tantalising comments in that direction. One of his most important remarks in this regard is the notion 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. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society".[10]

The point here is that the commodity-form theory might well say that ‘the rule of law’ etc. is rooted in commodity exchange. But it further notes that this means such notions are not all they are cracked up to be. Certainly they have there good sides, but for every good party there is the dialectical other – coercion, violence and hierarchy. This is a consequence of the contradictory nature of the capitalist totality itself – and as such is unavoidable.

Fuller’s understanding is that of the typical liberal. He sees only the ‘good’ side, the equality and reciprocity within the commodity form, without seeing what this ‘good’ side is indissolubly connected to. Of course it might be that Fuller attempts the tradition manoeuvre (a la Hayek) of making a separation between actually existing capitalism and an idealist world of ‘simple commodity exchange’. Yet, it is questionable whether ‘simply commodity exchange’ has ever existed in this way as a widespread ‘mode’ of production [it usually existed on the periphery of systems that formally enshrined inequality]. And even if it has, it leads would seem to lead ineluctably towards large scale capitalism.

Thus, Fuller seems to fundamentally misunderstand the Marxian perspective, he takes one step forward – in recognising the link between ‘the law’ and commodity exchange[11] – and two steps back – since he refuses to examine the logical implications of such a manoeuvre. Such a position is characteristic of those Marxists who have become renegades, they suddenly choose to elaborate on the fact that Marx praised capitalism, liberal values etc. – without noting that even whilst he did this he pointed out their inner truth. So if you ever hear someone ranting about Marx’s intro to the Communist Manifesto and his praise of the bourgeoisie just bring up Jameson’s critique – and show them that they really don’t get Marx.

Hmmm. Ok I’ve said very little with a lot of words. One last example of the liberal misunderstanding of Marx [and this is a hilarious one]. According to Fuller Marx had a ‘fundamental aversion to interdependence’[12]. This is a bit rich when describing a man who looked forward to a society in which 'the individuals obtain their freedom in and through their association'. What Fuller again seems to be doing is exercising that liberal habit of undialectical thinking, for Marx interdependence and individualism under capitalism constantly come into conflict, and end up creating ‘one-sided’ individuals. Fuller seems to mistake aufbehung/sublation/synthesis for rejection, for of course Marx foresees that in a communist society interdependence becomes the prerequisite for independence and vice-versa.

In the end I’m not really sure what is remarkable about this. Perhaps what is most interesting is that a respected, orthodox scholar takes Pashukanis seriously. The result demonstrates one thing – Marxism is not liberalism. This might sound obvious, but it’s worth bearing in mind. There has often been an attempt by the softer left to ‘reclaim’ Marx from Lenin. Lenin is seen as the mean and nasty anti-liberal, whilst Marx is the nice man who spoke up for rights. But the reality is so much more complex than that. Marx’s critique of capitalism is simultaneously a critique of liberalism (since liberalism presupposes capitalism). He doesn’t simply ‘reject’ it. But what he does is engage in immanent and external critique. Firstly, he shows that the reality of liberalism is inherently contradictory, since it is tied up with commodity exchange, which is itself ‘split’. Secondly, on this basis he engages in immanent critique, liberalism can never live up to its own hype – because it systemically undermines its own goals. So I’ll close with a lovely quote from Chris Arthur:

In truth the demand for equality, or for equity in economic and legal arrangements, does not go beyond a radical bourgeois framework and does not grasp the qualitative break with previous forms that Marx looks forward to. Equality is the highest concept of bourgeois politics. It is not accidental that Marx never issued any programmatic declaration for it.[13]

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[1] (1949) 47 Michigan Law Review 1157

[2] Lon Fuller (1964), 'The Morality of the Law', Yale University Press, at p.24 [Although I personally would doubt this conclusion there are a host of Soviet thinkers who have made some very original and sound arguments

[3] ibid p.24

[4] ibidp.24

[5] ibid p.26

[6] ibid p.26

[7] Capital

[8]Pashukanis (1978), General Theory of Law and Marxism, Ink Links at p.39

[9] Yes I realise this in itself would require a whole book - could we just accept it as a tendency - pleeeeeease?

[10] Pashukanis (1980), Selected Writings, London: Academic Press, p.71

[11] Although he later moves back towards the position of law qua rules

[12] Fuller (1964), op cit p.26

[13] Chris Arthur’s Introduction to the Ink Links edition of the General Theory at p.23