The Critical Lawyers' Handbook Volume 1

1: Critical Legal Theory


Critical Legal Theory: The Power of Law

by Sammy Adelman & Ken Foster

Law grinds the poor, and rich men rule the law - Goldsmith, The Traveller

Most ideas about law disguise its political nature and functions. The reason far this lies in the nature and form of law and how we think about it. The reality of power is obscured while the existing political order is rationalised in the rhetoric of equality, rights and the rule of law. There is little systematic work on law and power despite the fact that a defining feature of law is that it operates to facilitate exploitation and discrimination. It operates in this manner primarily in four spheres: class, gender, race and ideology. In most pre-modern societies power was exercised in ways unrestricted by notions of legitimacy and right. We therefore need to explain how this concept of'law' is used to justify the political order of modern society and why it is neither perceived - nor, indeed, operates - as the naked domination of one group over another.
 

The pervasiveness of law in modern society means that law must be challenged from within by means of what we call legal Insurgency. It is not enough to be critical of law and its underlying political structures; we need to move beyond mere criticism to critique and thereby expose the contradictions underpinning the principles, policies and doctrines of bourgeois law. The material effects of law and the ideological bases upon which it is manufactured must be analysed and deconstructed in order to comprehend the power of modern legal discourse as a dominant intellectual paradigm.

 

The ways of thinking about law which have dominated European social thought during the past 200 years constitute a paradigm which has variously been termed formalism, positivism, rational/xientifle and modern. This paradigm disguises the structures of political power by making legal discourse appear to be neutral, value-free and scientific. It separates legal discourse from other discourses, political and moral discourses in particular. It abstracts human beings from their social existence by constructing them exclusively as the holders of legal rights and the subjects of legal duties. It fetishises the individual, and it reifies social and political relations between people.



Legal Formalism

Legal formalism, which we consider to be emblematic of this paradigm, has three principal dimensions. First, it represents the notion that law is made by the state and its agencies so that all legal rules appear imperative and willed by the political sovereign. Law is enacted by a legislature or announced by judges. It is derived from the state, which is seen as an external impersonal force which governs the people from above, which has unrestricted sovereignty and the absolute power to make rules. It is created by the legal institutions themselves and appears to be relatively autonomous of the natural 'social order'. The validity of law is determined not by its substantive content but by formal questions about its precedence, its pedigree and its procedural correctness.
 

The rise and legitimation of the bourgeois nation state is the key historical determinant of legal formalism. The modern state acts independently of real control by the governed despite the fact that its power, expressed in political and legal doctrines of sovereignty, is often rationalised as the democratic outcome of a social contract with the people. The law is perceived to be a state-approved set of rules commanding and controlling the people. This concept of the state causes two related difficulties. First, how does the state legitimate its place at the apex of political decision-making? This problem has historically been resolved in various ways: military victory or conquest, divine right, ownership of land, the natural or traditional order of the community, external power such as the papacy, a valid constitution, democratic election, or through revolution. Secondly, each political system has its own ideological methods of resolving the difficulty arising from the apparent conflict between the unrestricted power of the state and the protection of individual rights. The potential tyranny and arbitrariness inherent in uncontrolled power therefore come to be accepted as being limited by concepts of democratic accountability, legal controls over the political executive, formal universal rules equally applicable to all citizens, and the ostensible neutrality of those who make and administer the law,

 

The second characteristic of legal formalism is its indifference to substantive justice. Dominant groups and individuals exercise their power by subjecting every citizen to the same rules so that formal justice masks substantive social differences and inequalities. Legal discourse is isolated from the purview of political, social and ethical/moral discourses, and legal reasoning is severed from any external criterion which can be used to judge and evaluate social behaviour. Thus moral standards, ethical behaviour and, crucially, questions of justice are eliminated from legal reasoning. What the law is and what it ought to be are argued by legal practitioners to be independent questions. Indeed, modern judges are expected to be remote and disinterested.

 

Its third characteristic is its explicitly rational and scientific discourse, a product of the Enlightenment and hence an expression of a conscious desire to understand and control the material world. Legal formalism presents law as a gapless, logical and internally coherent system, in which correct legal dec-isions can be deduced by formal reasoning. These characteristics of formalism are frequently hailed as virtues yet merely serve to emphasise the false separation of judgement from political and social factors.

 

What is less often stressed is the extent to which this is part of a more general development of scientific thought. The emergence of scientific legal discourse from the late eighteenth century onwards paralleled the growth of medical and biological discourses and the development of political, social and economic sciences as distinct disciplines (Foucault, 1971 and 1979). Its expression in legal discourse is most clearly represented by John Austin's Positivist jurisprudence and its mimicking of the methods of natural science. Legal science concentrates pre-eminently on the classification and division of concepts, on methods of induction and deduction, and on the analysis and synthesis of rules. Judicial decision-making becomes an experimental procedure in which hypotheses of abstract rules are proposed, evidence is found and tested, and conclusions are drawn by logical deduction. Even modern refinements of scientific procedure, such as the theory of falsification rather than verification, are paralleled in the legal method of writers such as Hart and Dworkin - for example in the finding of the hard case of extreme facts which will not fit the rule.


 
Law as Power

One of the few authors who has directly addressed the question of power in modern societies is Michel Foucault. He identifies Power as being everywhere and flowing in different directions depending upon is exercising it and in what context. He thus frees us from sterile conceptions of power being implemented in a top-down fashion by the dominant groups in society. On the other hand, this ultimately pluralist conception of power runs the risk of ignoring the significance of the group exercise of class, race and gender power through law. Foucault can also be faulted for identifying law as a declining discourse: as we head towards the twenty-first century it would appear that law has never been more central to the maintenance of capitalist, racist and sexist relations.
 

Our analysis of the centrality and ideological importance of legal formalism reveals that it is not coincidental that bourgeois law operates to the advantage of the powerful or that access to and treatment by the law is directly related to socioeconomic class. As Anatole France so succinctly put it, 'The law in its majestic impartiality forbids both rich and poor alike to sleep under bridges, to beg in the streets and steal bread.' (France, Crainquehille, quoted in Davidoff, 1952) Law has historically assumed forms which facilitate the accumulation of capital and which operate ideologically to secure the consent of those subject to it. The worker and the capitalist are equal only in the eyes of law, which operates semi-autonomously to mask, filter and mediate reality. Law generally benefits the dominant social classes because they construct the law even as they are constructed by it. The limited legal gains made by the dominated classes are generally the product of resistance or the co-optation so characteristic of the welfare state. These exceptions that prove the rule are crucial to the success of law's ideological hegemony.

 

The problem of class analysis, however, is that it does not adequately explain other forms of domination such as racial and sexual discrimination. The growing corpus of feminist writings on law has subjected bourgeois law to a thorough critique, demonstrating in the process how its categories - constructed by and for, and enforced predominantly by, men - are incapable of providing substantive justice for women because they in fact facilitate discrimination against women (MacKinnon, 1987, Smart 1989).

 

The concept of jurisprudence presumes an identifiable unity of law, hence basic principles of justice, rights or equity are presumed to underpin all aspects of law. Jurisprudence seeks to identify the source of these principles and therefore make generally applicable statements about the nature of law. Basic to this notion is the idea that these norms are relevant and binding to all areas of law (Smart, 1989, p. 69).

 

It is precisely this blanket approach by the law which makes possible the illusion that all citizens are completely autonomous, free-willed, fully aware of the law and fully in agreement with the major tenets of the dominant ideology - which is essentially that of the white Anglo-Saxon Protestant. It is not surprising, therefore, that the pregnant woman, the victim of racial discrimination, the Muslim in Britain or the political leftwinger should often find his or her Weltanschauung directly contradicted by law and legal ideology. Fitzpatrick has demonstrated how, in the liberal worldview underpinning bourgeois law (which celebrates individualism as it promotes conformity),'racism is compatible with and even integral to law' (Fitzpatrick S~ Hunt, 1987, pp. 119-32).By focusing exclusively on the individual, and on intention to the exclusion of motive (see Norrie in this book)? the legal system performs the sleight of hand of rescuing society from responsibility for racism while appearing to be an adequate means of dealing with it.

 

Class, gender and race are the primary material relations of exploitation, masked but yet built into the legal form. They are not, however, separate matrices of power relations. Rather they are interdependent, so that a single legal system facilitates different forms of exploitation and discrimination. ~bus there is a relationship between the sexual division of labour (which predates class divisions, but which changes in relation to both the social and international divisions of labour) and different modes of production. Similarly, such a relationship exists between racial discrimination and colonialism and imperialism, and between law and the underdevelopment of the 'Third World. In South Africa, black women are thrice oppressed, as blacks, as women and as black women, and the legal structures of apartheid have directly or indirectly reinforced and facilitated all three forms of oppression,

 

Law is ordinarily generated, enacted and enforced by those with a vested interest in maintaining the status quo. It is therefore inherently conservative. If legal theory is to be progressive it must be critical and must address the role of taw as a primary facilitator of exploitation and discrimination. In our teaching, research and practice we must seek to theorise, not in the abstract, but on the basis of the materiality of law: we must seek a materialist theory of law. Feminist legal theorists have demonstrated how traditional jurisprudence, insular and parochial as it Is, can no longer ignore the claims and challenges of feminist legal theory, despite the latter's flaws and growing pains. The task now confronting us is to generalise such a critique to race, colonialism, imperialism and all other forms of domination and to seek to unify theory and practice. For it is only in the unity of praxis that legal theory can avoid the sterility of traditional jurisprudence and begin to make a meaningful contribution to social life.