The Critical Lawyers' Handbook Volume 1
1: Critical Legal Theory
Robert Fine and Sol Picciotto
The revival of Marxism in Western Europe in the 1960s and 1970s was a reaction against the failures both of a Stalinism, which supported the dogmas and tyrannies of state socialism, and of complacent liberalism, which ignored or tolerated the inequalities and oppressions of capitalism. Consequently Marxist critiques of law and the state have had a twofold dynamic, focusing on the limits both of bourgeois freedom in systems based on private property, and of 'sociaIist' freedom in systems based on state property.
The central question concerning the role of law in a class society is its apparent autonomy and neutrality. The social-democratic tradition idealised existing legality as an order into which any social content could be fitted, capitalist or socialist. This was expressed in Karl Renner's classic view that the forms of law do not change but only their functions (Bottomore & Goode, 1978; Renner, 1949). In this perspective, the rule of law could only be fully realised under socialism, since under capitalism it is distorted and corrupted by private interests. The transition to socialism means the democratisation af state institutions, particularly through the legislature, and the gradual extension of legal regulation into the private sphere through social legislation (especially through the nationalisation of industry, but also by welfare legislation on employment, social security, child Protection, etc.).
This view of legal forms has been criticised by contemporary Marxists for it's a historical idealisation of legal reasoning, procedures and remedies and its cursory acceptance of the administrative procedures of the state. The reasons for injustice are thought to lie not in the law but in inequalities of power in the economic and social spheres. 'This perspective has often lain behind research into law in society, which seeks to reveal the economic, political and other interests which prevent legal institutions working as they should. Its focus being on the shadow that falls between the real functioning of law and the ideal form of law itself, it tends to depict law as a functional instrument for social change.
Renner's positivistic theory was sharply criticised by the Soviet jurist, Evgeni Pashukanis, whose work in the 1920s represented an important attempt to apply the method of Marx's critique of political economy to jurisprudence (Beirne & Sharlet, 1980; Pashukanis, 1983; Sharlet, 1974). Pashukanis became influential in the 1970s and provided a fruitful starting point for analysis, especially of private law. He located law as a specifically capitalist form of regulation or control. He argued that law is based on exchange relations between owners of commodities each of whom appears as an abstract juridic subject and whose interrelationships are necessarily mediated by contract and other legal forms. As a historical form of control, what characterises law, according to Pashukanis, is abstraction, isolation, mutual indifference, the reproduction of substantive inequalities and the mystification of the rule of people as the rule of law. In his eyes, the transition to communism entails the withering away of bourgeois law; true community is beyond law.
This critique was fraught with theoretical and political problems. Since Pashukanis saw law as based on exchange relations and since he equated capitalism simply with the generalisation of exchange (rather than with exploitative relations of production which derive from the exchange of labour power), he could only conclude that all exchange was capitalist exchange and all law was bourgeois law. The result was a one-sided critique which excluded the possibility of socialist legality and neglected any question of democratising and socialising the law. This played into the hands of the evolving Stalinist regime, which deployed his theory of the primacy of technical regulation under socialism to justify the power of the bureaucracy and its disregard for legal constraints. Pashukanis and his theory were brutally dispatched by the chief prosecutor, Vishinsky, who condemned him as a member of'a band of wreckers' and 'Trotsky-Bukharin fascist agents' (Arthur 1977; Beirne ~r Sharlet, 1980; Binns, 1980; Fine, 1984; Norrie, 1982; Redhead, 1978).
In the 1970s Marxist theories of law were also influenced by structuralist perspectives. According to structuralist Marxism, social relations are divided between the economic sphere of production, seen in the narrow sense as the immediate process of production or the labour process, and the sphere of reproduction which includes family, law and he state (Althusser, 1965, Poulantzas, 1978). Such theories present the economic sphere as 'dominant in the last instance' while emphasising the 'relative autonomy' of the legal, political and ideological super-structure. Relative autonomy, however, is itself seen either as functional to the reproduction of capitalist relations of production, in which case it is merely a working part of a larger whole, or the autonomy is stressed at the expense of any real connection to economic relations. 'This theory was criticised by Marxists for reifying the separation of economics and politics and the ultimate primacy of the economic as a natural feature of all social organisation. It appeared either as a refinement of the mechanistic base-superstructure model, or as a return to pluralist sociology (Clarke, 1982; Holloway & Picciotto, 1977 and 1978; Thompson, 1978). For such reasons, structuralism did not help to grasp the forms of class power embodied in law, relying instead on an a historical opposition between consent and coercion, which in its neglect of consensus-formation in authoritarian regimes failed to comprehend the force of right-wing populism.
Critical Marxism has argued that class relations should be seen as relations of production in a wider sense than economic determinism allows. Capitalist relations of production necessarily present themselves in both mediated and differentiated forms; the generalisation of commodity exchange and its transformation into capitalist production gives rise to the fragmentation of social life and the emergence of two apparently separate spheres of existence: economics and law. The sphere of economics is based on seemingly natural laws concerning the movement of things; people appear as bearers of commodities, subordinate to external economic forces and related to each other by money. In this 'objective' sphere relations are mediated by money and everything has its price, determined by market forces. The juridico-political sphere, on the other hand, appears to be based on the seemingly natural qualities of human individuals. In this 'subjective' domain individuals appear as free agents and things as dependent on their will. Private property appears as the materialisation of free will, individuals take the form of juridic subjects, relations between individuals are mediated by seemingly impersonal laws of their own making, and the state appears as the articulation of the general will. It is a world of juridic subjects and free citizens whose intersubjectivity is based on reciprocal rights and duties. The social origins of juridic forms are as concealed as those of economics (Saycr, 1987, and Grigg-Spall and Ireland in this book).
For critical Marxism, the fragmentation of society into its economic and juridical forms of appearance is a result of definite social relations of production. The real individuals who inhabit these fragmented spheres are the same. It is the self-same individual who is at once a free subject and the victim of uncontrollable economic forces. The relations between the classes are at once juridic and economic.
In this historically constructed fragmentation, legal relations are one aspect of a dynamic system of capitalist production and reproduction, based on changing relations between capital and labour. 'This dialectical approach means avoiding the dangers of purely logical derivation of the legal form from an abstract characterisation of the capital-labour relation (Holloway & Picciotto, 1978; Holloway & Picciotto, 1979, criticising Balbus, 1977). Legal relations are not predetermined by the logic of the capital-form, nor by the needs or interests of the owners of capital alone. The concept of the legal form in the singular abstracts from the diversity of legal forms that are historically constructed as the relations between capital and labour change.
The starting point of the relations of production as a social relation between the classes is vital. Since the social relations between the classes are fragmented, the central antagonism takes the form of many specific conflicts, for example over housing, the environment, racial and gender oppression. It is important to stress that so-called social struggles are just as much aspects of class and are not merely incidental to struggles over wages and working conditions. All are rooted in the overall development of capitalist accumulation, even as they have their own dynamics; they cannot be reduced to simple class interest, since class unity is not pre-given but must be forged. Indeed the fragmentation of social relations continually creates and recreates divisions and conflicts of interest.
As forms of appearance of class relations, legal forms embody both domination (the will of the state) and reason (the rights of the people). As jurists put it, there is an inseparable connection in law between voluntas and ratio (authority and rights), positive command and subjective freedom. The realisation of class gains requires the transcendence of the specifically capitalist character of legal norms and procedures. At the most general level, bourgeois legal relations are oppressive in that they are based on individual legal subjects as property-owners and make no formal distinction between capitalist private property (which represents power over labour) and personal private property (which may be no more than labour power).
Thus in bourgeois law the right to work is recognised not as a right for the millions of unemployed, but as the right of the strike-breaker or non-union member. There is no right to decent housing, but only a right to be undisturbed in the possession of one's own home, whether it is a hovel or a palace. Other social rights, such as health, are not recognised as legal entitlements but depend on the vagaries of state provision.
Legal rights appear as natural but are in fact created and shaped by the state. Thus in Britain in the past dozen years, Thatcherism has rested some of its popularity on the creation of new rights, by various forms of privatisation, such as the right of residents to buy their council house, selling to the public or giving workers shares in nationalised industries, and putting public services such as hospital cleaning out to tender by private companies. Although Thatcherism has purported to be restoring market forces, in reality markets are highly structured and regulated by the state and finance-capital; so the creation of a property-owning democracy based on the right to own housing or company shares depends on financial manipulation, for example, tax-subsidisation of mortgages and employee share-ownership schemes, while municipal housing must pay high interest rates, and rents have been pushed up to market levels. The radical right has therefore been able to use state intervention to create individual rights and claim to be increasing the sphere of freedom, while the left has been forced to defend old and unpopular forms of public provision which have been slow to adapt and systematically disadvantaged.
In its practice, Marxism aims to socialise and democratise both the form and content of law. Liberal juridical forms are based on apparently free and equal legal subjects, generally applicable rules, neutral adjudication, the separation of prescription and enforcement, a representative legislature and a professional civil service. Behind these seemingly impartial legal forms, however, lie highly authoritarian and technicist forms of adjudication, enforcement and legislation. The democratisation of these forms is seen by critical Marxism as a high priority, the selection, composition, procedures and accountability of the judiciary being a case in point.
Critical Marxism addresses itself equally to the content of law, since it is structurally oriented towards protection of property rights of owners of capital, whether private or state, and against rights of workers. The problem of legal forms of regulation in general is that they refer only to the rights and not the needs of individuals. A society based on fulfilment of individual and social needs would no longer be regulated in ways which would be recognisable in terms of bourgeois legal forms. Bourgeois legal forms offer a minimum defence of freedom and equality, but are structured to Protect private property. The point is not merely to denounce the legal form but to fight for the best possible form and content of law. When right and need begin to come together, this is what is meant by transcending the legal form itself. Even in advanced socialist societies law would rightly operate, only both its content and procedures would be changed to make it far more democratic in form and supportive of people's needs in substance.
Involvement with law should be seen as an integral part of broader social struggles, and legal tactics and strategies should be related to other forms of organisation and action. Taken alone, legal processes may be divisive and weaken social solidarities. Legal forms, however, cannot be avoided since the law provides both a medium of defence and a way of generalising the gains of particular struggles. There is often no other way of overcoming sectionalism than through the legalisation of rights which particular groups win in specific settings. To relate struggles to the form and content of law is not to juridify politics but to politicise jurisprudence. This is a lesson that has been well learned by many movements over the past two decades. An important example is the peace movement, whose activists have won important battles by integrating direct action and legal tactics within an overall strategy (Dewar et al, 1486). In Britain, suspicion of the law among socialists, especially in the trade unions, has led to attempts to ignore or avoid it instead of integrating strategies around law with broader political aims. To the degree that trade unions have argued only for legal non-intervention or immunity, that is, for the law to absent itself from industrial relations, they have been unable to develop an adequate counter-strategy to the labour laws of the Thatcher government. Now that the Labour-TUC policy has changed to advocating a 'positive framework of rights' for trade-unionism, there will have to be some hard thinking about the actual content of such rights and the form in which they are adjudicated and enforced.
One lesson of the 1984-5 miners' strike was that trade union solidarity by itself cannot always be an alternative to law. When the unions were strong, they did not use their power to gcncralise and institutionalise in law the gains they made as particular unions, a policy which would have gone some way to overcoming tendencies to sectionalism, but rather to keep the law at bay. When unions were economically weakened, their lack of legal foundation proved a major additional handicap. Although the government itself did not directly use its own new laws against the miners, it encouraged individual legal actions by dissident miners (based on common law) which magnified internal divisions about the procedures used in deciding on the strike. Grassroots solidarity and support from the socialist movement organised by local groups, women's groups and the 'far left' helped to prevent the destruction of the miners' union, but neither questions of intra-union democracy nor those of legality can be subsumed to the call for solidarity (Fine Sr Millar, 1985). Slowly unions are learning how to organise politically around the law, for instance, supporting and organising around workers' rights to ballot. The question facing them is not to oppose this right but to infuse it with a more democratic content and form: for example, when ballots are called, how ballots are conducted and how the right to a ballot is enforced.
Women struggling for equality have focused on rights such as that of equal pay for work of equal value and have also sought to overcome its limitations. Here, as in other areas of the social charter, European Community law has been invoked to reinforce the struggle, since the political pressures to ensure a social dimension for European integration have resulted in a programme, however limited and ineffective, for an equalisation of rights which provides legal space for workers and oppressed groups to exploit. In other areas the appalling record of the British government over rights of prisoners, immigrants, freedom of the press, etc., has been exposed by appeals to the European Human Rights Commission and Court in Strasbourg.
Organising in such a way as to relate legal forms to positive social and political content certainly lays open a potential for opportunism. It involves constant tactical choices, since the individual case can never be a pure class question. Sometimes a technical legal move or argument is best; sometimes it is possible to put a political point as part of a legal argument. It is desirable to aim for an open form of organisation which breaks down the separation of the legal professional and the lay client, and integrates the skill of the one with the direct involvement, experience and commitment of the other. Ironically, a useful model is the best sort of big business lawyering, which moulds and develops the law to fit its needs.
We hope that this outline has helped to show how critical Marxism does not counterpose a utopian ideal of communism, based on the abolition of all forms of law, to actual legal orders but rather exposes the real social antagonisms concealed beneath their apparently smooth surfaces (Rose, 1981). Far from constructing a phantasm of communal harmony, Marxism should be understood as striving ?- in a world in which freedom is a lonely child of subjection and injustice - for new social forms that will permit real personal and political liberty.
its criticism of existing legal orders and projection of new forms of
democracy, contemporary Marxism has returned to its enlightenment roots:
integrating the civil rights of individuals with Political rights of collective
participation in the running of the state. In so doing, however, Marxism
has found it necessary to push this project (see Fine, 1984) beyond the
bounds of both liberal and so-called state-socialist legality, to the
extent that both constrain rights within the narrow limits of actual property
relations and then misrepresent these social boundaries as natural and