The Critical Lawyers' Handbook Volume 1
2: Critical Legal Education
Ian Grigg-Spall and Paddy Ireland
In this afterword we seek to excavate the presuppositions about society, people and social relations that underlie law. Our object is simple, to show that the appearances of freedom which are presented by capitalism, and in particular by law under capitalism, depend upon, and mask, conditions of unfreedom and domination which are an inseparable part of capitalist society.
We argue that the extolled liberal elements of capitalist lav, which celebrate law as the basis of individual freedom, hinge upon, and obscure, deeply conservative elements which give priority to order, authority and hierarchy; that the free individuals of 1 liberal legal theory are, as Foucault claims, constituted by a highly illiberal network of disciplinary institutions. We move on to suggest that an explanation of the contradiction within capitalism and capitalist law between freedom and domination is to be found in Marx's distinction between the sphere of circulation - the marketplace where freedom reigns - and the sphere of production - where domination and subordination prevail. From this we argue that the freedom which money apparently provides for individuals In the market conceals the role of money as the supreme representation of social power, the foundation of systematic relations of domination and subordination. Finally, we defend the structuralism of our analysis against postmodernism, arguing that the freedoms which postmodernists proclaim - of choice, diversity, individualisation and endless novelty - reflect the surface appearances of capitalist society and its decadent cultivation of imaginary appetites, and conceal the misery and subordination of the vast majority of the world's population upon which they hang.
short, then, out argument is that each of the different forms taken by
freedom under capitalism - liberal freedom, the freedom of money and the
freedoms of postmodernism - depends upon the suppression of its own conditions
of existence and of the many other forms of freedom excluded by the necessary
dominations of capitalist social relations.
Liberal presuppositions In law are most evident in contract, tort, criminal law and constitutional law (see Thomson, Conaghan & Mansell, Norrie, and De Friend in this chapter). One of the defining characteristics of these substantive areas is their individualism, and liberalism (in the political and philosophical sense) is, first and foremost, highly individualistic. It begins with the individual, seeing 'him' - the liberal individual is recognisably male (Gilligan, 1982) - and 'his' rights as taking precedence over society and other collectivities. Individuals are seen as coming before society, both in the sense of having higher metal value attached to them, and in the temporal sense of being seen as existing before society. From this perspective, society is merely an aggregate of individuals. In law this is reflected in the way the world is individualised; both human and corporate bodies are declared 'individual legal subjects' acid disputes are treated as purely individual affairs between these autonomous persons. The liberal individualism of law in these areas is also expressed in its methodological individualism, in the great emphasis it places on Ideas of individual cause, responsibility and culpability (see especially Conaghan and Mansell in this chapter). For most people in our society these presuppositions are simply common sense'.
The people who occupy these areas of law also display peculiarly liberal characteristics. They exist as isolated individuals, independent of any social relationships, and are said to Possess both a fixed, pre-social, self-centred, 'human nature', and natural, equal, inalienable rights which pre-date society and which are in no way dependent for their validity on positive law. In short, liberal law presumes a world of isolated, independent and formally equal individuals. It therefore declares people to be equal in the face of glaring inequalities: social class, gender, education, wealth, race and economic power are proclaimed irrelevant. Individuals are 'decontextualised', abstracted from their real conditions of existence. They are removed from their actual social relations and stripped of most of their distinguishing features. Only the ubiquitous 'A' and 'B' of case summaries and student legal problems remain (see Thomson and Kennedy In this chapter).
The contradiction between these formally equal individuals and their real conditions of existence is most evident in the area of property law. For liberal law above all else secures individual private property rights, and it is, of course, the regular, predictable and formally equal enforcement of abstract private property rights (including rights of inheritance) which underpins the gross inequalities of wealth and power in our society. Property law is, therefore, par excellence the domain of liberalism, to such an extent that most liberal philosophers consider private property rights to be more sacrosanct than individual freedom and democracy (Arblaster, 1984).
Abstracted from society, these property-owning, liberal legal subjects stand as essentially unconnected strangers. Strangers who are self- interested and who owe no obligations to one another. As a leading tort textbook says, 'An adult who stands by and watches a child (with whom he has no special relationship) drown in a foot of water may have to answer before some higher tribunal somewhere, sometime, but he is not accountable ... in the English Courts ...' (Rogers, 1979, p. 77). Individuals, in other words, are 'free' to decide for themselves. Here liberal law miners not only the liberal view of essential social relations, but also the liberal view of morality: to watch the child drown may be, not is, morally wrong. For liberals morality is a matter of individual choice, an aspect of individual autonomy, responsibility and freedom. In general, therefore, law should not legislate morality, for this is essentially an individual and private matter. Nor should it intervene when people act in a way that might be morally questionable.
It follows that obligations between these abstract, property-owning individuals will arise principally by contract - by agreement and consent - and that in contractual negotiations these individuals will (naturally) drive the hardest possible bargain, for this is simply to act as a rational, self- interested individual. In short, relations between people are assumed to be essentially competitive and conflicting. Certain crucial characteristics of law follow from this. First, law becomes an affair of individual rights, with legal decision-making turning on who has the better right. And secondly, since rights can only be expressed in rules, law essentially becomes an affair of rules. Under the rule of law - the rule of rules not persons - law appears not merely as an affair of rules but as an affair of abstract rules applied to abstract persons (Gabel, 1980; Pashukanis, 1983).
liberal presuppositions and their reflection in liberal law and liberal
legal process are generally treated not only as unproblematic but as a
true representation of social relations and of legal processes in our
society (Kairys in this book). They are taken for granted, experienced
as natural, as facts, as part of the way things (inevitably) are. They
become part of the 'common sense' we have both about ourselves and our
relationships with others, and about the role of law, courts and judges.
Indeed, even after being confronted with the extensive empirical, sociological,
historical and anthropological evidence to the contrary, many students
continue to believe that precedents really do determine judicial decisions;
that it is 'human nature' for persons to be selfish, egoistic, materialistic
and competitive; and that equality, freedom and democracy are the hallmarks
of our society.
However, as some of the articles in this book indicate, not all law is underlain by liberal presuppositions. On the contrary, in certain areas of law the underlying ideology is demonstrably not one of individuality, freedom and equality. For example, attempts to represent the relations between individuals and state officials, between women and men, between employees and employers, and between students and teachers as essentially contractual relations between free and equal legal subjects simply do not stand close scrutiny (see de Friend, Bottomley, Edie et al. and Kennedy). In many situations law (and judges) simply do not see the world in liberal terms, but rather maintain and express a specific order of hierarchy and authority, of domination and subordination, and of inequality and status. In short, the implicit theory underlying law is often conservative, not liberal. In our view, the conservative philosopher Roger Scruton rightly argues that law, although theorised in liberal terms, is, in fact, predominantly conservative in nature (1984, p. 71).
in this political-philosophical sense (which must be distinguished from
party political conservatism), rejects the fundamental premises
of liberal Individualism. For conservatives, individuals cannot be understood
In the abstract; they are not intelligible without reference to the social
relations of which they are part. Contrary to the liberal view, society
and social institutions are antecedent to the individuals which compose
them. 'The autonomous individual', Scruton writes, 'is the product of
practices which designate him as social. The individual man is the man
who recognises that he is no mere individual ... Individual freedom is
the great social artifact which, in trying to represent itself as nature
alone, generates the myth of liberalism' (Sauton, 1984, P. 73). Individuals
are the products of social institutions; they are social 'artifacts'.
Therefore, to attack these institutions is to 'assault ... the social
order which produced the self' (Salisbury Review, July 1985, p. 51). It
follows that for conservatives the preservation of social institutions
is the supreme political goal. As Scruton writes: 'One major difference
between conservatism and liberalism consists ... in the fact that, for
the conservative, the value of individual liberty is not absolute, but
stands subject to another and higher value, the authority of established
government.' He goes on to write: 'In politics the conservative attitude
seeks above all for government, and regards no citizen as possessed of
a natural right that transcends his obligation to be ruled. Even democracy
... can be discarded without detriment to the civil well-being as the
conservative conceives it.' Authority and order are the watchwords of
the conservative (Scruton, 1984, pp. 16-19).
The priority given to institutions over individuals has other important consequences. Conservatives see society as essentially composed of a network of these social institutions - the family, the school, the workplace, the nation and so on; institutions in which people submit to the authority of others. Authority of this kind, and the duties and obligations which accompany it, cannot, they argue, be derived from contract or consent. In the conservative view, most social, political and legal obligations are not the product of individual choice and volition. 'It would be absurd', Scruton writes, 'to think of family obligations as in any way arising from a free relinquishing of autonomy ... the language of contract here fails to make contact with the facts' (1984, p. 31). Much the same, they suggest, is true of, inter alia, the employment relation, marriage, and the relationship between state and citizen. In short, people participate In many patently non-contractual relationships characterised by Inequality, hierarchy, domination and subordination, with essentially non-negotiable terms. They nevertheless experience them as perfectly legitimate. 'It is a remarkable fact', Scruton says, 'that people recognise authority ... In social arrangements, in institutions, and in the state. It is equally remarkable that this authority can command their allegiance ...' (1984, p. 28). For conservatives, legitimacy is as much a matter of prejudice as it is of reason. (1984, P. 12). 'The condition of society', Scruton argues, 'presupposes this general connivance, and a conservative will seek: to uphold all those practices and institutions - among which, of course, the family is pre-eminent - through which the habits of allegiance are acquired' (1984, p. 33).
In our view, de Friend, Bottomley, Edie and Scott demonstrate in different ways the extent to which law and legal practices in certain areas have conservative not liberal presuppositions. It is clear, for example, that in the field of constitutional law the maintenance of a particular version of social order is frequently given a higher value than individual rights and freedoms. In labour law, it is equally clear that the courts view the employment relationship as essentially one of authority and hierarchy despite its liberal contractual form. Employees ('servants' are held to owe implied duties of loyalty, obedience and fidelity to their employers ('masters') which override liberal notions of contract. Similarly, law regularly and predictably conceives of relationships between men and women in marriage as hierarchical and patriarchal. Although marriage Is legally theorised in liberal contractual terms, the social practices within marriage are formulated by the courts in terms of masculine authority and female dependence and sub-ordination (O'Donovan, 1985; Pateman, 1988). In all of these legal areas these hierarchies are, for most people, 'common sense', part of the way things necessarily are.
Finally, Kennedy's description of teacher-student relationships in law schools (in this chapter) stands as an example of such relationships in education generally. Up to the age of 18 these relationships are still legally theorised on the basis of the concept of' in loco parentis', the teacher being granted the authority of the parent over the child. Here again, such hierarchy and subordination is, for most people, natural and inevitable. Yet, as Kennedy shows, hierarchy in schools and universities hinders rather than aids education in a liberal sense. What it does do, most successfully, is to prepare people for the hierarchies and inequalities of the workplace, whether in a City law firm or a factory (Gorz, 1976; John Fitzpatrick, Watkinson in Chapter 3).
This catalogue of areas in which the legal interpretations of everyday Practices are based on conservative presuppositions could easily be extended. Foucault in his writings has, of course, made central the prison and the asylum (see Adelman Sr Foster in Chapter 1). He, like Scruton, is well aware of the contradiction between capitalism's projected ideology of liberalism and its deeply illiberal practices. He writes: 'Historically, the process by which the bourgeoisie became in the course of the eighteenth century the politically dominant class was marked by the establishment of an explicit, coded and formally egalitarian juridical framework ... But the development and generalisation of disciplinary mechanisms constituted the other dark side of these processes. The general juridical form that guaranteed a system of rights that were egalitarian in principle was supported by these tiny, everyday physical mechanisms, by all those systems of micropower that are essentially non-egalitarian and asymmetrical that we call the disciplines.' These disciplinary institutions, he goes on to argue, possess judicial and penal mechanisms which are autonomous of law. There are 'parallel judges' within them (technical experts, teachers, doctors, managers, psychologists, social workers and so on), operating in a sphere' well protected from judicial or popular intervention'. This is the 'dark' or 'despotic' side of the rule of law - the recognition in and by law of the power and authority of certain persons over others. According to Foucault, the disciplines appear to be an 'infra-Iaw', but are in reality a 'counter-law'. For him the contradiction lies in the opposition between the disciplines and (liberal) legality, rather than, as we have argued, within legality itself (Foucault, 1979, pp. 220-4; Fine, 1979).
Foucault explicitly recognises the non-contractual nature of the disciplinary institutions. Within these disciplinary institutions, people are not classified according to 'universal [liberal] norms'; rather they are 'hierarchically' organised In relation to one another. The disciplines constitute 'the foundation of the formal, juridical liberties'. While 'the contract may have been regarded as the ideal foundation of law and political power; panopticism constituted the technique, universally widespread, of coercion ... The "Enlightenment", which discovered the liberties, also invented the disciplines' (1979, pp. 222-3).
For Foucault, therefore,' the disciplinary state is placed before the (liberal] constitutional state' (Carty, 1990, p. 25).'Normalising disciplinary power', says Peter Fitzpatrick, 'provide[s] the conditions for liberal legality ... a constitutive pre-adaption of the individual to freedom' (see Carty, 1990, P. 101). For both Foucaultians and conservatives the disciplinary institutions play a crucial socialising role in society. For Foucault they produce 'useful and docile bodies'; for Scruton they create the 'socialised self', the individual 'fit to be free'. For Foucault the 'free subject' of law, liberalism and democratic politics is 'already in himself the effect of a subordination much more profound than himself'. For Scruton 'the autonomous [liberal] individual is the product of practices which designate him as social' (1984, p. 72-3).
Law, then, is underlain by a mixture of liberal and conservative pre- suppositions. However, while the principles and values underlying 'liberal law' have received much attention, the same is not true of 'conservative law'. One reason for this is that liberal principles, unlike those of conservatism, are both appealing and capable of being spoken at a high level of abstraction. As such they have become the basis for capitalism's abstract claims to securing individual freedom and equality, claims which can only exist by suppressing the realities of the world capitalist order and its everyday practices and institutions. Of the conservative presuppositions which underlie many of our institutions and much of our law we hear very little. As Scruton says, 'The dogma of conservatism ... [is] startling and even offensive to many whose feelings it none the less quite accurately describes' (1984, P. 25).
liberal elements - individual freedom and equality - constitute the safely
spoken, sumptuous suppositions of law. The conservative elements - hierarchy,
authority, and domination - constitute law's unspoken presuppositions,
spoken only at risk of being declared offensively presumptuous.
In this section we rashly consider whether it is Possible to account for law's contradictory presuppositions. In our view, the starting point for such an analysis can be found in the separation within capitalism between the sphere of market exchange (circulation) and the sphere of production. 'The sphere of circulation', Marx wrote, 'is a very Eden of the innate rights of man. It is the ... realm of Freedom, Equality, Property and Bentham ...'. Freedom and equality because in the marketplace buyer and sellers 'contract as free persons, who are equal before the law,... exchang[ing] equivalent for equivalent'. Property because each disposes 'only of what is his own'. And Bentham 'because each looks only to his own advantage' (Marx, 1976, p. 280). For Marx the market is the exclusive realm and material basis of liberal values. However, when we leave this 'noisy sphere, where everything takes place on the surface' and enter 'the hidden abode of production, on whose threshold hangs the notice "No admittance except on business", a certain change takes place in the physiognomy of our dramatised personae. He who was previously the money owner now strides out in front as a capitalist; the possessor of labour power follows as his worker.' In the factory, 'the capitalist formulates his power over workers like a private legislator ...'; all freedom 'in law and In fact' is ended, for here 'the employer is absolute law-giver ... making regulations at will ...' (Marx, 1976, p. 550). This is a realm of manifest conservative hierarchy and authority.
Capitalism is not merely a market society, but a market society where labour - that is, human beings - are commodities, objects which are bought and sold in the market. From the eighteenth and nineteenth centuries selling oneself for a wage became the usual way to 'make a living' (Malcolmson, 1981). During this period money too came to play an increasingly important role in society, facilitating exchange by representing the value of commodities. In a market capitalist society, therefore, social relationships come to be mediated both by the market and by money. This dramatically affects the way in which individuals see themselves and their relations with others, generating a reification and mystification of the products of labour; what Marx called 'commodity and money fetishism' (Marx, 1976, Sayer, 1987).
The things that people produce - food, clothing, cars and so on - develop a value in money terms - 30p, £50, £6000. In other words, money comes to represent social labour. The products of human labour are 'fetishised' in that these values seem to inhere in the objects themselves. The origin of products in human labour and the connection between that labour and their value (money price) is concealed. As a result the complex social division of labour responsible for the production of commodities, and the many social relationships which make individual existence possible, become lost to consciousness. Social relations take the immediate form not of direct relations between people, but the fetishised form of relations between things - commodities and money. These processes take their most extreme form in the fetishisation of money itself, the process whereby money - which, as has been observed, does not have genitals and can produce nothing (Koffler, 1979) - develops the apparent ability, as interest-bearing capital, to produce more money by itself (Grigg-Spall et al. in this chapter). In short, then, money and market exchange draw a veil over, and mask, social relationships. Harvey explains: 'If I were to trace back where my dinner came from I would become aware of the myriad's of people involved in putting even the simplest of meals on the table. Yet I can consume my repast without having to know anything about them. Their conditions of life, their joys, discontents and aspirations remain hidden from me. This masking arises because our social relations with those who contribute to our daily sustenance are hidden behind the exchange of things [one object, money, for another object, the commodity] in the marketplace ... There is no trace of exploitation on the lettuce, no taste of apartheid in the fruit from South Africa.' (1989b, p. 8) As we eat our South African oranges, wear our Thai shorts and watch our Hong Kong TVs and South Korean video recorders, we give not a thought for their producers (and their conditions of life), those upon whom - in reality, if not in liberal fiction - we are totally dependent.
The commodity and money fetishisms generated by market capitalism provide the material basis of liberal thought. As a result of the reification and mystification of labour and the products of labour the dependence of people upon others for their everyday existence is lost to consciousness. People come to appear, and to experience themselves, as essentially unconnected to one another; as' isolated strangers', as 'others', free of any social and economic ties. Society appears to be the coming together, through market exchange and contract, of these isolated individuals. Indeed, in capitalist society, with the commodification of labour we are, in a certain sense, isolated - made 'Others' - even from ourselves, for we are turned into objects for sale, objects whose values are fixed mysteriously in the market. A principle aim in life becomes to sell oneself successfully, to turn oneself into a commodity attractive to prospective employers - something the student seeking a job and worrying about his or her exam results will readily appreciate. Our skill, energy and creativity become just more saleable things and our sense of personal worth becomes largely dependent upon our success or failure as commodities.
In this topsy-turvy world, while people appear to be essentially independent of, and unrelated to, one another, they appear (and in a genuine sense are) totally dependent upon money - pieces of paper and lumps of metal! For it is money which enables them to buy commodities, to buy the labour and the products of labour of others. In a capitalist society, therefore, the ability to exercise power over others does not typically take a direct and personal form, but the indirect form of power over a thing - money. This too affects the way things appear, for, as Marx observed, money is a 'great leveller and cynic', an equaliser, which undermines fixed social relations and eliminates many marks of distinction. It is also a form of social power that can be held by private persons - by isolated individuals - without apparent reference to others. As such 'it forms the basis for a wide-ranging individual liberty', for owners of money are 'free, within constraints, to choose how, when, where, and with whom to use that money to satisfy their needs, wants and fancies - a fact that the free market ideologues perpetually dwell upon to the exclusion of all else' (Harvey, 1989a, p. 103; 1989b, p. 168). Therefore, the sphere of market exchange and 'the community of money' are' strongly marked by individualism and certain conceptions of liberty, freedom, and equality backed by laws of private property ... and freedom of contract' (1989b, p. 168). It is, nevertheless, supremely ironical that in a world In which self-sufficiency is eligible and dependence upon others overwhelming, liberal individualist ideas about the world should be so prevalent. This is not the result of a grand conspiracy by the 'ruling class' to conceal the real nature of capitalism behind illusory notions of freedom, equality and individualism. it is, rather, generated by the realities of market capitalism itself; by the everyday practical activity of market exchange. The liberal elements of both law and 'common sense' reflect the 'fetishised forms of appearance' of capitalist social relations; the superficial 'phenomenal forms' of those relations readily observed in the marketplace.
There is, however, 'a deep tension [in our society] between the individualism, freedom and equality' found in the marketplace and 'implied in the possession of money' and the class relations experienced in the making and distribution of that money (Harvey, 1989b, p. 169), a tension mirrored in the contradictory nature of law. There is much more to capitalism than commodity production, market exchange and money relationships. The social relations which lie beneath the fetishised forms of the market are relations of class, race and sexual division: the systematic inequalities, hierarchies, dominations and subordination's of our society.
In our view the principle source of these hierarchies and inequalities lies in the nature of capitalism as an economic system based not merely on production for market, but on production for private profit. As a result capitalist production is necessarily hierarchical, for as Gorz writes: 'If workers had a say in the goals and arrangement of the work [profit] would cease to be the dominant goal of production. It would be subordinated to or balanced by other aims such as the pleasure, interest, and usefulness of work, the use-value of the products, the increase of free time and so on.' But 'capital's aims are foreign to the worker'; profitability has to be. 'imposed on workers as are alien demand to which all others must be subordinated' (Gorz, 197~, p. 56; see also Edie et al. in this chapter). Capitalism irrevocably treats workers in instrumental terms, as (reified) 'factors of production', to be exploited as profitably as possible. Indeed, as capitalism develops, moving into the era of' manufacture', the grip of the profitability imperative over production tightens. The competitive battle between capitals comes to revolve around technological advances which increase the productivity of labour, reducing the labour time that it takes to produce particular commodities and their cost. Firms have to keep abreast of these advances for technologically backward firms, unable to Produce at the average socially necessary labour time, will be uncompetitive and forced out of the market. In short, the profitability imperative comes to confront not only capitalists but society as a whole as an external coercive law, for without profit there is no production. Production ceases not when needs have been met, but when profitability ceases. The need for profit comes to be experienced as an imperative inherent in matter itself, as inexorable and incontestable, as the result of the apparently neutral laws of a complex machine, beyond volition and dispute. This has profound consequences both within production and beyond.
Within production people have to be disciplined into accepting the profitability imperative, its requirements and consequences. Historically, central to this disciplining is the wresting from workers of significant control over the work process, through (inter alia) the introduction of factory Production and workplace hierarchies. Contrary to the common-sense view, neither of these originally emerged for reasons of technical necessity or productive efficiency, but because of their effectiveness as mechanisms of discipline and supervision, their 'efficiency'' in the context of alienated and forced labour, [of] work subjugated to [the) alien goal' of profitability. 'Discipline was the essence of the factory' (Gorz, 1976, p. 56; Marglin, 1971). In constituting control as a separate function of managers, technicians and engineers, the factory hierarchy was instrumental in 'denying workers any possible control over the conditions and methods of machine production'. Technically, as Gorz observes, the factory could dispense with these functionaries and the hierarchies of which they are part; politically, however, they perform a crucial function, 'perpetuat[ing] the workers dependence, subordination and separation from the means and process of production' (Gorz, p. 57).
Capitalism craves more than discipline in production. It needs 'broader social discipline' in society as the basis for discipline in production (Corrigan & Sayer, 1985, p. 184; Kennedy in this chapter). In the eighteenth and nineteenth centuries, the early years of industrial capitalism, this broader disciplining process involved the 'radical restructuring of man's social nature'. As Sydney pollard says, people who were 'non- accumulative, non-acauisitive, accustomed to work for subsistence, not for the maximisation of income, had to be made obedient to the cash stimulus ...' (1963, p. 254). Wherever people were in control of their own working lives, the work pattern was one of alternate bouts of intense labour and idleness. This had to be changed; so too did cultural traditions and practices and the sense that people had of time itself(Thomson, 1967, p. 73). It was during this period that many of the modem disciplinary institutions emerged, and with them there evolved many of he characteristics now commonly attributed to a universal ('male') human nature. As William Lazonick writes: 'By the 1870's in England, most of the characteristic institutions of the advanced capitalist systems of the twentieth century - the factory the welfare system, the industrial city, municipal police forces, the dependent family unit, mass public schooling, [trade] unions, electoral democracy - had emerged' (1978, p. 1). It was, Lazonick continues, 'class conflict over the subjection of labour to capital which was [one of] the motivating force[s] in the development of [these] institutions ...'. One of the main spurs behind the development of mass state education, for example, was the desire to 'inculcate and reinforce the norms of capitalist production in the next generation of workers'; it was 'a prime ideological mechanism in the attempt by the capitalist class, through the medium of the state, to continually reproduce a labour force which would passively accept that subjection' (1978, pp. 26-7, 14). As Gorz asserts:' Teaching is not and has never been the aim of school ..There are many learning methods more fruitful and efficient than schooling ... people are schooled ... because the system is anxious to socialise them in a certain way ... they must be educated into submission, discipline and respect for hierarchy ... [adapted] to the barbarity of the factory, to the hierarchical, fragmented division of labour' (Gorz, 1976, p. 58; Kennedy in this chapter).
Historically, this disciplining took place against the backdrop of pre- existing social forms, reminding us that outside of theoretical models there is no such thing as capitalism in general; that real capitalisms only ever exist as particular, historical forms of civilisation. Capitalisms are actively constructed through the transformation of pre-existing social forms. For example, although one might imagine a non-patriarchal, non-sexist or non-racist capitalism - patriarchy, sexism and racism cannot be directly derived from the concept of capital - 'all real capitalism's have in practice been constructed through [for example] patriarchal forms of social relationship, which have a history independent of [and prior to] that of capitalism itself' (Corrigan & Sayer, 1985, pp. 189-90). While capitalism certainly invented wage-labour as a dominant form, it did not invent all subordinated groups (or, as postmodernists might say 'others'). It has, however, 'certainly made use of and promoted them in highly structured ways' (Harvey, 1989a, p. 104).
In this section we have offered the beginnings of an analysis of law's presuppositions. Money - which is a shorthand way of saying capitalist relations, market values and trade and exchange (Macfarlane, 1985)- is the key to both. On the one hand, as we have said, it provides the basis for wide-ranging individual liberty, a liberty which enables us to develop ourselves as apparent individuals without reference to others. On the other hand, in capitalist society it is the supreme representation of social power, conferring upon people the ability to command others. Money enables the building of systematic relations of domination and subordination. As Harvey observes, it 'fuses the political and the economic into a genuine political economy of overwhelming power relations', a problem that 'micro-theorists of power, like Foucault, systematically avoid' (1989a, p. 102). Money unifies precisely through its capacity to accommodate individualism and freedom with hierarchy and domination. It is, therefore, the unification and explanation of the liberal and conservative elements of capitalist society.
creates 'a grey world where good and evil are interchangeable; where it
is impossible to be certain, to have absolute moral standards; where nothing
is entirely black or white'. Money renders 'every moral system throughout
the world equally valid', so that_ 'within every system whatever is, is
right' (Macfarlane, 1985, pp. 69-72). Money, therefore, also enables us
to grasp why postmodernists, having acknowledged the authenticity of 'other
voices', are unable to distinguish between them. They treat the voices
of international bankers 'on a par with' those of' women, ethnic and racial
minorities, colonised peoples [and] unemployed youth' and thereby 'disempower'
them (Harvey, 1989a, p. 117). For these reasons the postmodernist concern
for the 'signifier' (money) rather than the 'signified' (the commodity),
the medium (money) rather than the message (social labour), and emphasis
on fiction rather than function, on signs rather than things (see Harvey,
1989a, p. 102) is a reinforcement rather than a transformation of the
role of money and, therefore, inevitably of capitalism itself.
This structural account and explanation of liberal and conservative law returns us to some of the theoretical debates raised in Chapter 1 and stands in opposition to postmodernism which is at pains to 'free us from a belief in underlying structures of power' (Thomson in Chapter 1). Post- modernists have attacked 'totalising' 'meta-theories' or 'meta-narratives' (Douzinas & Warrington in Chapter 1) which attempt to connect diverse phenomena, insisting that we cannot aspire 'to any unified representation of the world, or picture it as a totality full of connections and differentiations ...' (Harvey, 1989a, p. 52). The postmodernists insist that the world is a place of 'individualisation' and 'fragmentation' which cannot be understood as a totality. Indeed, they take them at face value and 'actually celebrate the reifications and partitionings, the ... masking and cover-up, [and] all the fetishisms of locality, place, or social grouping' (Harvey, 1989a, pp. 116-17).
The fact of individualisation and fragmentation is not at issue. They are inevitable features of capitalist society. They are characteristics of a society dominated by commodity and money fetishisms, which thereby seems to be composed of 'others of millions of interconnecting but fundamentally fragmented social relationships without any structure; aspects of a society dominated by a labour process in which human beings are reduced to mere fragments of persons, to mere_ 'factors of production'; and of a society ruled by coercive laws of com- petition which force the 'constant revolutionising of production, uninterrupted disturbance of all social relations, everlasting uncertainty and agitation ...' (Marx and Engels, 1952, p. 25), and the 'melting of all that is solid into air'.
This last point is worth emphasising for it provides the basis for understanding postmodernism's obsession with uncertainty, instability, disconnection, style and fashion. For in the modern era, as Harvey writes, 'the struggle to maintain profitability sends capitalists racing off to explore all kinds of ... possibilities'. In this process, 'new production lines are opened up acid that means the creation of new wants and needs in others, thus emphasising the cultivation of imaginary appetites and the role of fantasy, caprice and whim'. The result is to exacerbate insecurity and instability, 'as masses of capital and workers shift from one line of production to another, leaving whole sectors devastated, while the perpetual flux in consumer wants, tastes and needs becomes a permanent [and personal] locus of uncertainty and struggle' (1989b, p.106; see Ellis, 1991). The geographical movement of capital and labour in a relentless search for profit ads a further dimension to this. 'If, therefore, the only secure thing about modernity is its insecurity, then it is not hard to see from where that insecurity derives' (Harvey, 1989a, p.107).
undoubtedly, meta-theories have often tended to ignore important differences
and hae given insufficient attention to contradictions and detail, postmodernism
fails in losing sight of the determining role played by the imperatives
of capitalist production - upon which our material existence depends -
and of the 'totalising' role played by state and law in regulating institutions,
relations and subjectivities so as to ensure that these imperatives are