Introduction

Whether law is to be resisted or whether it can be a form of resistance is an intensely debated issue in the politics of law. Feminist and minority activists in the United States strive to secure positions in law whereas most critical legal scholars there see law as indeterminate and intrinsically unreliable. in the United Kingdom some would see law as subordinate to a dominant power in society whereas others argue for its independent capacity to bring about progressive change. Here, ]: will outline these various stands, not to resolve them but to extract from them two distinct ideas of law. With one, law has that general, surpassing power necessary for the rule of law, With the other, law is limited and constituted in its involvement with various social relations. Resistance can have little assured place with the first idea of law but it does have a part in the second, not least in the undermining of law's pretensions to surpassing power.


Law and the Limits of Resistance

To set the scene, I will start with a story often celebrated for affirming law as resistance - Marx's account of the Ten-Hour Act, the Factory Act of 1848 which limited the hours of work to ten a day (Marx, 1954, pp. 264-81). The significance of this law lay not just in its limiting of the working day. It was the symbol, culmination and resolution of a long, general struggle between workers and employers. Given this, what is remarkable is not so much the achievement but its precariousness, As Marx so graphically shows, the ac-t was sustained only by an intense politics involving workers, crown lawyers and factory inspectors opposing the manufacturers and judges sympathetic to them. Employers often evaded the act and even secured its modification in their own interests with the Factory Act of 1850. The Ten-Hour Act is hardly, then, an unequivocal instance of law as resistance,
 
Nor has the general issue since been settled. Versions of the dependence of law would see it, to take examples from Marxism, as a component of a superstructure determined by an economic base, or as relatively autonomous within a somewhat more complex structure where the economic remains ultimately determining. But others advocate the taking seriously of law and of many other social forms that the left is said to have treated negatively or dismissively to the detriment of its political effectiveness. So, one is supposed to be realistic about, for example, police and profitability, and this not only because people see good in them and people have votes, but also because these social forms will in some ways need to be maintained in a future socialist society. So law, as one such social form, is granted an independent political existence and the capacity for progressive social change.
 
A marked variation on this theme comes from recent sharp debates within critical legal studies in the United States. ?'he prevalent view sees 'the legal process at large and its discrete doctrinal components' as 'fundamentally indeterminate and manipulable' (Hutchinson and Monahan, 1984, pp. 211-12). That indeterminacy and manipulation will typically favour dominant interests. Rules, rights and processes in law insidiously attract people with a promise of enduring standards and objective determination, but provide neither. There can be no significant basis or focus here for resistance. But from the perspectives of minorities this line of critique ... is familiar, imperialistic and wrong. h/iinorities know from bitter experience that occasional court victories do not mean the Promised Land is at hand. The critique is imperialistic in that it tells minorities and other oppressed peoples how they should interpret events affecting them. A court order directing a housing authority to disburse funds for heating in subsidized housing may postpone the revolution, or it may not. In the meantime the order keeps a number of poor families warm. This may mean, more to them than it does to a comfortable academic working in a warm office. (Delgado, 1987, pp. 307-8)

I would like to suggest that these disagreements reflect two distinct dimensions of law. The first we could call a relational dimension. For the proponents of taking law seriously, and for the advocates of minorities, the idea of law tends to be an operative one. Out of the infinity of what law could be and could do, it is doing and being something specific. In this way law is formed in the diversity of its links with other social relations. This law creates a diversity of fields each with characteristic meanings and limits which come to be usual but not invariant, resolved but not set. These fields often give effect to resistances, as with the Ten-Hour Act. Or, to take a current example, we find improbable legal pockets of humanity and tolerance in the immigration law of the United Kingdom created by the sustained activity of legal practitioners particularly through the appeals process. In this diversity of situations, a modest general claim could be made for law as resistance along the lines that the stability involved can limit the ruler as well as the ruled. This claim Is often inflated into a virtue unique to the rule of law but it is no more than what is involved in any formalisation of power.
 
Which point serves to return us to the thesis of indeterminacy in critical legal studies, since any formalisation can be rendered indeterminate. But the dimension of law in which this can be done is different to that relational dimension we have just considered where law would cease to exist if it were rendered comprehensively indeterminate. Law In this other dimension resides definitively in some unifying, 'sovereign' location such as the state, It is set apart from social relations even if it will often be thought of as connected in a general way to society or as ultimately dominated by some element of society such as the economic. Whatever this connection or whatever law's ultimate basis may be, the intrinsic claim of the rule of law is that law is a transcendent, all-cncompassing power. it cannot in its own terms be limited in the interests of a power outside of itself. Thus resistances established in law remain contingent on change or abolition through a rule of law which does not grant them any existence outside of its own domain. We could call this the surpassing dimension of law. The gains of the Ten-Hour Act, as we saw, were not assured within law. The overtly partisan resort by recent governmcnts in the Unitcd Kingdom to law's surpassing dimension has dramatised its significance for resistance. To take but one example, rights of trade unions and of workcrs once seemingly securcd in law have been taken away or drastically modified. The gcneral point is that resistance cannot be assured through law in its surpassing dispensation. This conclusion is complicated where there are constitutional Provisions securing positions against normal legal change. But constitutions can be amended and, more ominously, they are interpreted. To take another recent example, in the landmark decision of Roe v. Wade ([1973] 410 US 113), the US Supreme Court used the constitutional right to privacy seemingly to secure a right to abortion but it has now subjected this right to the prospect of contrary regulation by state legislatures (Webster v. Reproductive Health Services [1989] 109 S Ct 3040). This surpassing dimension of law, in its incompatibility with any settled condition, has operated to resist ascribed status whether sexual, racial or feudal. Rut, overall, its record on this score has been at best ambivalent (Fitzpatrick, 1987).


Resistance and the Limits of the Law

So far I have argued that although resistance can be effective in law's relational dimension, it can ultimately be countered in law's surpassing dimension. Without abandoning that conclusion, I now want to show that it can also be reversed, that law as relational can, paradoxically, surpass law as surpassing. That is, we can use law as relational to locate limits and restraints on the ability of surpassing law to negative resistance. One obvious way is to strengthen those elements which go to constitute law relationally. The Ten-Hour Act was secured and finally sustained because an effective politics remained integral to law in that situation. The dilution of the Act in the Factor~ Act of 1850 could be traced to a weakness in that politics (Marx, 1954, pp. 269-77). To take another example, the increasing resort to informal and popular justice as alternatives to law has remained largely subordinated to state law because an alternative basis for it has not been secured. The outcome is dramatically otherwise where there is an alternative basis
drawing on the involvement of the community, as with the Newham Conflict and Change Project (Miller, 1986).
 
But, as the persistence of popular and informal justice, even in their compromised forms, indicates, there is a distinctiveness to them in their ability to regulate areas which state law cannot. Informal and popular justice supplement state law. The supplement provides what is lacking. It serves to complement and to complete that which is sup plemented. The very presentation of informal and popular justice as essentially different to law confirms law as apart from and independent of the informal and the popular - confirms it as the preserve of a formal,official authority. But, as Derrida has it, the supplement is also 'dangerous' (1976, pp. 144-5). It remains outside, challenging the completeness and the adequacy of that which is within. This challenge has been greatly exploited by organisers of popular justice in the Third World to create legal processes that resist state law and operate beyond its bounds (see, for example, Baxi, 1985).
 
Henry's illuminating case studies of the use of law in workplace discipline in Britain provide another instance (Henry, 1982). Here was an area state law could not regulate directly in capitalist society without undermining the authority of employers. An alternative source of discipline was derived from the popular legal skills of workers to erect forms of private justice in the workplace. Henry found that this did lead to 'tension' between this involvement of workers and the potential the involvement had to 'undermine management's ability to control' (Henry, 1982, P. 374). The challenge thus Posed by this form of popular justice was countered by the manipulation of the informal nature of the proceedings so as to confine them to procedural matters, thus avoiding any substantive engagement with the terms of management's authority (Henry, 1982, pp. 375-7). To make those terms subject to dispute and appraisal before a legal forum within the workplace, to introduce into the workplace in this way elements of the freedom and equality of legal subjects, would confront the arbitrary authority of 'management' with these characteristic legal modes and values. Such a confrontation would evoke limits of law which the initial resort to popular justice was meant to circumvent. It would also locate points of fundamental resistance to the authority of employers. This line of analysis could, broadly, be replicated for various sets of social relations to which law is linked, such as the family and state administration (sce Donzelot, 1980). The sum of the limits that result would reveal law in its surpassing dimension as restricted to a particular configuration of interests and as vulnerable in its claim to a transcendent rule.


Conclusion

I have argued that we can better understand law as resistance if we see it in two dimensions. With one, law assumes a unified identity surpassing social relations. With the other, law is created in its integration with the diversity of social relations. This relational dimension of law supports resistances but they can be undermined by law in terms of its surpassing dimension. However, the relational dimension of law returned the favour, as it were. It served to demarcate limits on law in its surpassing dimension. Law proved to be a potent mode of resisting law.