The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
lawyers, both academic and practising, have often insisted upon the relevance
of their work to the wider project of fundamental social change. They do
so now at a time when the traditional agent of change, the working class,
is itself marginalised and the left generally is exhibiting a loss of nerve
amounting almost to panic. This is the context which now shapes any discussion
of the relationship between a legal practice and a socialist practice, and
we have to take the weight of it.
The catastrophic failure of the Soviet attempt to construct a new order, the triumphalism of the West and the effective absence of the working class from the political stage have taken a heavy toll on current political thinking (Richards, 1990). The very idea of progress itself is now considered by many to be an undesirable Enlightenment delusion. Marxism is seen as a relic from a time when people naively believed in categories (or meta-narratives) like capital and accumulation, and gullibly trusted in the power of reason to grasp in their totality the laws of motion of the modern world. We now peer darkly through a postmodern pea-souper of pluralism, relativism, difference, consumerism and the politics of identity.
The salient features of the new consensus that is emerging from the fog are an acceptance of the capitalist market and an emphasis on civil society. The market or at least the socialised market, is now confidently embraced by the left as the best form of economic organisation for society (Blackburn, 1991). This is consistent with the growing focus over the past decade on civil society as the most fruitful arena for progressive activity of any sort, well away from the darker realms of power politics and the state. In civil society the participatory citizen of the future will, it is claimed, be enabled and empowered by the exercise of individual freedom and consumer choice and by ever more accountable and democratic institutions and structures.
The model has been described as 'a pluralist civil society guarded by an open and accountable state' (Keane, 1988, p. 238). Notice how the state has crept back into the picture in the guise of a friendly security guard. It would appear that the promise of civil society can only be delivered by substantial reforms of and by the state and its legal system. A bill of rights, a citizen's charter, elected judiciary, community policing, proportional representation, cooperatives, eco-friendly-industry, listening banks ... these, we are told, are the way forward.
Inevitably, socialist lawyers are tempted by these ideas to believe that their professional activity can play a major role in achieving social change. As another champion of a 'new settlement' puts it: 'It appears that a plausible resolution of some of the dilemmas of contemporary politics can only be provided if enhanced political participation is embedded in a legal and constitutional framework that protects and nurtures individuals, and other social categories, as "free and equal citizens".' (Held, 1991, P. 23)
Who better then than lawyers to negotiate the new Social Contract with the state, to draft the constitutions which will extend and entrench our liberties, to formulate the ground rules of the new dispensation? Not before time, many will think. After all, didn't Marx always underestimate the importance of rights and the law? 1
Radical lawyers regard such a deployment of their professional skills as something more than gradual reformism. They see their work as linking up with broader movements of social transformation, as constituting a counter-hegemonic strategy in its own right, as forging one prong of a fork which can still deflate the system altogether. They see themselves as compensating for the failure of the old Marxist left to realise, as Gramsci warned them, that the war against capitalism must first be joined, even won, in civil society, at the level of ideology and culture, before the state and the mode of production can be confronted.2 This is not the place to defend the Marxist tradition and its Project of human emancipation against trends which closely resemble what Marx himself called 'sentimental, socialistic day dreams ... utopian, mutton-headed socialism' (Marx, 1976). It is the place to open the argument that we will not even adequately defend ourselves in the present, never mind usher in a brave new citizen's world, if we adopt a strategy which is based around the law, constitutional reform and the acceptable face of the market.
We should begin by pointing out that the distinction between the state and civil society, in particular as it was first drawn by Marx, is being much abused. Civil society, now referring more to institutions like the family, the church, the supermarket, the hospital, the cooperative and so on than to the capitalist economy, is being represented as a sphere of opportunity where, if state coercion and capitalist excess can be resisted or removed by progressive legislation, freedom can flourish. This is misleading indeed, for it is civil society which is the root cause of our problems (Wood, 1988 and 1990).
get a better understanding of civil society we have to return to a familiar
starting point: the separation of the economic and the political spheres
of life which is a distinctive feature of capitalist society. This separation
arises because under capitalism the process of appropriation by one class
of what is produced by another does not in principle depend upon any juridical
or political distinction between capitalist and worker. Nor does the capitalist
have to rely in the first instance upon coercion to ensure that appropriation
We recognise, of course, the discrepancy between the formal equality of these agents and the substantive inequality of the real conditions of their lives. A few privately own the means of production and the rest are free only to exchange their labour power. We recognise that, although everybody does indeed exchange commodities at their value in the market, only those who are in a position to put the commodity labour power to work in production can extract surplus value and exploit the others. Here, at the very heart of civil society, are the mechanisms which will continue to generate exploitation and alienation, crisis and breakdown for as long as they are in place.
We can also see how the various legal and political forms which derive from relations of production based on formal equality and the absence of direct coercion can appear to be independent of that system of production. The institutions of the law and state are distant from the world of home and work, from the world of civil society. It is for these reasons that they can appear to be natural, neutral, and the product simply of the general will of society. This is what Marx called the 'juridical illusion' (Marx, 1973b, p. 81).
Just as important as recognising the juridical illusion, however, and more often overlooked, is the point also stressed by Marx that even though the material basis of our juridical and political relations is obscured and mystified, it nevertheless remains the case that these institutions and ideas are a true and consistent expression of that material basis:
Both the form (free and equal) and the content (exploitative and coercive) of the freedom and equality of capitalist society are an expression of the way in which civil society, the world of production and the market, of unequal ownership and equal exchange, is organised (see Grigg-Spall and Ireland in this book). Marx emphasised the restricted nature of any freedom in a civil society dominated by commodity production and exchange where the only commodity that matters to most people is their own labour power:
Marx, unlike many since, did not flinch from the logical conclusion. To gain real freedom would require more than political and legislative reform, it would require the transformation of civil society itself. Marx did not underestimate political and legal structures, but always emphasised the dual nature of the task, referring to the 'fight for the abolition of the state and of bourgeois society' (Marx, 1845). It is a matter of record not interpretation that for Marx this meant among other things a political and a social revolution, involving both the destruction of the state machine of the old order and the abolition of private property(Freeman, 1988).
The terms in which Marx argued against those who thought that somehow the existing civil society could be successfully reformed, and the state used to reform it, are remarkably apt to the debate today:
if they eschew the task of reforming the market or trying to legislate
it out of existence, what then can lawyers, as lawyers, do for socialism?
The problem is that socialist lawyers tend to answer that question by
adjusting political priorities to fit their legal skills, rather
Most lawyers carry out their work in order to live. Their services are retained by the state or private individuals to operate a legal system which functions within strictly defined codes and procedures. Lawyers may expect to get other things out of their work but its prime purpose for them is as a livelihood, and its prime purpose for their employer is to ensure that the wheels of the legal system run as smoothly as possible, to deliver what they want.
Nevertheless, encouraged no doubt by prevailing ideas about how social change may be effected, socialists entering the law often assume that they will be able to integrate political activity with their wage labour. Any solicitor or barrister operating within the financial, professional and political restraints of the real world will soon be disabused of any such idea. Even so, many lawyers who are socialists do try to arrange things so that their legal work, so far as possible, helps workers defend their jobs and housing conditions, helps women and black people resist harassment and discrimination, helps the victims of police repression and so on. They try, too, from the confines of their employment, to press for improved legal services and progressive legislation.
It is no slight on the value of any of this work to say that much of it can be, and in practice is, undertaken by lawyers who have no commitment to socialism. That is so because it is an essentially technical activity in which expertise is usually more useful to the client than political or personal sympathy. Furthermore, at present the state ensures that, at some level, a legal service of this sort is available. It is needed to reinforce the legitimacy of the legal system as a whole and in particular to prevent the aggrieved from taking matters into their own hands. It is the reason for all public legal services, from legal aid to the network of law centres.
Outside work, lawyers use their experience and skills in a wide variety of ways from campaigning on specific cases and issues to lobbying for wide-scale legal reform. Socialists as well as lawyers will always want to fight for the best structures and services, and the widest possible rights. So too will many liberals and conservatives who fully accept the existing order. The struggle for such measures, like the struggle for decent living conditions as a whole, is essentially defensive and tactical in character, even though it can often be conducted creatively and offensively. It is an inevitable response to given conditions, and of course it can never be ignored.
It is misleading, however, to claim that such work constitutes a socialist practice simply because it seeks to enhance the material circumstances of workers, or has a counter-hegemonic quality because it challenges the state to make concessions, and so exposes and undermines it. Only when demands for reform are firmly set in the context of an openly anti-capitalist movement can they have this effect. Such claims also misrepresent the way in which improvements and concessions actually occur.
Reforms are not produced out of a hat by reformist politicians and campaigners, but are the consequence of wider objective and subjective factors, such as the ability of an economic system to afford them (as in the post-war boom) and the strength of the working class at any given time (as in the early 1970s). If there is sufficient working-class pressure the state will find their own lawyers quickly enough to make the necessary adjustments, as they did in 1972 when the Official Solicitor released five docker shop stewards from Pentonville prison. It is often forgotten that as a direct result of collective action in this and other disputes, a British court, the National Industrial Relations Court, was effectively destroyed, and the government's employment policies rendered inoperative.
On the other hand, over the last decade or so, with the working class in retreat, we have witnessed the steady erosion of both trade union and wider civil liberties. It did not matter that after the upsurge in militancy in the early 1970s a new government arrived (Labour, 19 74-9) and better trade-union laws were passed, consolidating some of the gains that had been made. What mattered was that this government soon co-ordinated a counter-attack on the working class which was taken up by Margaret Thatcher and continues to this day. The working class suffered considerable defeats, and it was not long before new employment legislation, aggressive policing and a steady loss of rights reflected the new balance of power.
Of course there is a dialectical relationship between legal rights and social power. We have to identify the force for change. The lesson here is not to make a campaign for new trade union laws the new priority. The lesson is surely that we have to rebuild and maintain a strong, combative and independent working class movement - just to hold our current position. The urgency of the task is shown by the fact that we are still going backwards: in social security, housing, employment, immigration, censorship, secrecy, police powers, legal aid - the state marches on, at our expense. The recent decision to deprive immigrants and their families of free legal advice and assistance is another straw in the wind.
We will only build a new movement if we win the battle of ideas across a wide range of social and political issues. We have a long way to go. We will have to take on, for example, the absurd argument that the market is the best regulator of resources that humanity is ever likely to devise. We have to take on the argument that the rule of law and the state are neutral institutions. We have to argue with those who would embrace rather than explode the contradictory features of these and other social institutions.
We are not going to win many of these arguments if we encourage individuals and groups to define their problems in the context of the legal remedies available to them. We are hardly going to encourage a broader view of the possibilities for change if we suggest that the real power in the land lies with the honourable members of Parliament, the judiciary and committees of civil servants and professionals. At the first sign of trouble trade-union leaders have for generations reached for their MPs and their lawyers rather than their members. Now more than ever they are happier with an injunction than a strike. Shop meetings and branch meetings are dominated by the question 'Is it is legal?' rather than 'Will it be effective?' Yet there are still those who encourage trade unionists to take Parliament and the courts more seriously.
We need at this time to develop, amongst socialist lawyers in particular, a culture of politics mote than a culture of rights, a political culture rather than a legal culture. We need a culture in which the full determinations of every relationship and conflict are readily explored and not channelled down the narrow corridors of the law. We need a culture which not only contests every instance and every inch of our oppression but always does so in the context of our ultimate aim. We need a culture which is not embarrassed to state that aim: a society in which every person gives according to ability, and receives according to need, in which the condition for the free development of each individual is the condition for the free development of all.
are well placed to help build such a culture. As Marx said, 'the really
difficult point to discuss here is how relations of production develop
unevenly as legal relations' (Marx, 1973a). There is a lot of difficult
but exciting work to be done in teasing out the mediating structures and
ideas which carry power and dominion to every corner of society (Grigg-Spall,
Ireland & Kelly in this book). Lawyers observe these processes at
close hand, and so have a unique opportunity to help clarify the way in
which society works. We have to leave the old quarrels behind, for that
is what we have been discussing. We have to develop a new, dynamic analysis
which captures in thought the real movement of capitalism today, and does
so as part of the task of reconstituting the working class as a political