Lenin has a post up on law. This is my riffing on it.
Lenin seeks to differentiate himself from what he describe’s as E.P. Thompson’s take on the law (a “humanist” one, which saw the rule of law as better than law’s absense) and Ian Taylor’s defense of law against a perceived alternative of social turmoil.
Lenin’s position is that you can’t oppose law to the violence that takes place in its absence and choose to keep the rule of law in place, since law itself is “nothing but congealed violence.” He comes to this conclusion by way of the example of the de-segregation movement in the United States, specifically the federal government’s deployment of troops to force states to comply with the central governments diktats. This, of course, flows from the development of capitalist production, and yada yada. At any rate, the operation of law, in Lenin’s view, is not about rights, the good, etc.; law is the congealed aftereffect of the clash of violent forces, and the rule of law is the concretion of that clash’s result.
The aim of conceiving of the law as congealed violence, as far as I can discern it, is guide us to understand that the law, as it operates in our society, “does not give us formal equality.” Rather:
Agents are assigned a bundle of rights and obligations depending on their location within the relations of production, such that their formal legal position with respect to one another, irrespective of how these rights and obligations are realised or elaborated in the process of jurisprudence, is not one of equality. At the most simple level, a capitalist is not equal with a worker, even at the ‘formal’ legal level. It will surely be objected that this refers to the substantive content of law, not its form. Such a reproach is related to schools which treat the legal form as a foundational grammar of abstract legal subjects derived from certain aspects of the capitalist mode of production - most notably, as mentioned, the Pashukanis school which treats the legal form as a derivative of or homologous with the commodity form. But I don’t think the ‘form’ of law is restricted to its most abstract expression, even if one accepts the grammar of the commodity-law homology. There are different levels of abstraction at which ‘form’ makes itself known. Putting it like this entails that, if the form-content dichotomy is to be useful, it must be revised. In its current articulation, it seems as if form is something settled at the highest level of abstraction, and content is settled at the highest level of concreteness. Arguably, however, one finds ‘form’ and a corresponding ‘content’ from the first abstraction to the last concrete-in-thought.
He then goes on to question whether “commodity form theory” explains what it is supposed. I’m not really interested in dividing those sorts of hairs, or delving at the moment into the orthodox Marxist idiom that seeks to establish law as part of the superstructure and as giving expression to basic productive relations. But when he seeks to come up with an account of law that is transhistorical, that gets at the law-like character of law as it exists in societies that are precapitalistic, I am intrigued. He wants that sort of story of law:
That is, an account of law that can comprehend forms which are not predicated on an abstract formally equal legal subject, whose subjects are explicitly hierarchically differentiated, and which are associated with imposition (thesmos) as much as contract (nomos). It must allow us to encompass the dense networks of legal relations which in precapitalist as in capitalist societies extend well beyond the sphere of commodity circulation and are decidely not equitable relations. Such an approach will of necessity not permit the conclusion that bourgeois standards of equality are embedded in the legal form itself at its most abstract level, in its ‘timeless structures’. The legal relation is only infrequently in history one between equal subjects or between equal rights, and then only in a certain abstract manner relating to certain social classifications (citizenship). Far more pervasively, it is a relation between unequal subjects - not just unequal individuals but corporate subjects, states, and so on - unequally endowed with rights and obligations.
This begins to get interesting. Building on Althusser’s conception of ideology (“material actions inserted into material practices governed by material rituals”), Lenin argues that any understanding of what law is now must take into account the state, the activities by which the agents of the state constitute law, since the state now (apparently) is invariably involved in the material reproduction of law:
The materiality of the state resides in the relations of forces that it condenses in its institutional sites of power and, through its practices, its action at various levels of the social formation. Part of this action takes the form of symbolic production, moral regulation, the production of social classifications and, as a corollary, the punishment of symbolic and moral trespass, the disruption of its classifications, etc. This means that violence is immanent to its action, whether or not violence is immediately deployed. And it is in this sense that I argue that law occupies the position of an ideological relation within the state’s strategic field. It is in this sense that legality appears as both at one and the same time the dominant mode of legitimacy, of consensus, and the mode in which terror and repression is constantly brought to bear in shaping the social body.
Which, to me, seems basically right, except that we have a “state” here that is somewhat reified; there is no state, there are patterns of behavior that are variously codified, endowing certain agents with normative capacities, each mobilizing the state’s sanction in specific ways. To be fair, Lenin notes shortly following this, that
Law is the dominant form of the dominant ideology concretized in practices which are permanently inscribed with political violence. In saying this, I do not mean that the dominant ideology or the legitimacy of the law is simply uncontested. Nor do I mean that the dominant ideology is just the ideology of a single class, and that therefore law is nothing but the execution of the ‘will’ or interests of that class. Rather, it is through contestation and class struggle that the dominant ideology reproduces itself, not as a homogenous ideal substance but as a necessarily heterogenous formation comprising elements of popular ideology which have been absorbed and their oppositional character neutralised. Poulantzas, strongly influenced by Gramsci, incorporated this into his theoretical architecture more successfully than Althusser. To this extent, following Poulantzas, we can say that law is a juridical condensation of the relations of forces in the social formation that it rules.
So far, somewhat good, if somewhat abstracted and a bit too flattening of oppositional pressures within law. It’s a problem to assume that “oppositional character” of things is “neutralized” if we say that law is a “heterogenous formation”; if law is heterogenous, it contains within it potentials to undermine its own monolithic character. We see some of the problem with assuming otherwise when Lenin writes the following paragraph:
But there is a peculiar characteristic of law as ideology, which is its imperative, axiological-deductive character. Whether the law’s application is ‘deduced’ from a civil code, a constitution, or from a body of ‘common law’, it takes the form of a chain of juridical logic, the unfolding of a set of determinations from a body of axioms and norms. This is nothing other than a rationalized, predictable structure of domination and decision-making within the field of the state. This rationalization is something that emerges from the double freeing of workers from the means of production, the social division of labour arising from this and the operation of the law of value as a homogenizing dynamic. Its imperative aspect is accounted for by the immanence of political violence to its actualization. Law in this sense is a mode of disciplinary power, an articulation of the dominant ideology (within a capitalist mode of production) with the political violence which secures its dominance.
The tension here, between the assumed, idealistic character of the law as essentially deductive, and the fact of the matter that law proceeds through dispute (between subjects equipped with varying normative and coercive powers). If it were simply the case that law were a “neutralized” expression of the dominant ideology, then legal concerns would not be a field of struggle. Certainly law, and the law-like character that enables certain struggles to take place within it without direct violence, does not merely reduce to the primal violence that putatively instantiates it; otherwise, why do the juridical disputes that motivate law take on a force of their own? And why do laws that no longer have normative purchase on the material practices of the population pass away? In the sense that it codifies norms and proceeds according to certain customs, law is a disciplinary power, but it is not (merely) an articulation of the dominant ideology (insofar as we understand ideology as “material actions inserted into material practices governed by material rituals,” and what makes certain of these actions/practices/rituals “dominant” as separable from the activities of certain agents who deploy it in their own dominating interests). Rather, it acts as a medium through which subjects (of various sorts) can normatively interrelate.
In the closing section, Lenin makes some convincing observations on the development of the notion of formal legal equality, its relation to productive development, etc., and then returns to the idea of equality before the law as espoused and defended by Thompson and Taylor:
[Thompson and Taylor] also both greatly over-estimate and misunderstand the role of formal equity in the law. It is not a promise that law makes, but which goes unrealised due to the distorting role of class power. Rather, it is a juridico-political form which really does exist and is realised within the capitalist mode of production precisely as a mode in which the political and ideological dominance of the ruling class is secured. That it is also the form in which this domination is provisionally and partially contested does not change this fundamental relationship. To do away with class power is not to free law from its shackles and distortions, but to do away with law as such.
Insofar as a hypothetical, fundamental shift in the practices and rituals that govern the production of society is concerned, sure, doing away with “class power” is going to do away with how the law exists today. But I see no reason to believe that it will do away with law “as such,” especially if we have adopted a view of law that exceeds the commodity form. And if that’s the case, then is “equity in the law” the sort of thing that would be desirable in our socialist utopia, or is it something that’s (merely) helping to reproduce capitalist social relations?
The difficulty in this seems to be in the assumption that the dominant ideology neutralizes oppositional forces within the legal field. To an extent this is true, but it’s not merely the case. The normative character of law compels the agents of its enforcement (the troops, the police, flag-saluting schoolchildren, etc.) as much as violence, and the field opened up by “equality before the law” seems to be one that enables very real and potentially liberatory forces—forces that, by making legalistic, normative claims, can make purchase on the material, reproductive forces of society. And arguably legal equity would inform the ideology of a utopian future.
But perhaps I am starry eyed.