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Ann. Rev. Social 1983. 9:103-24 Copyright © 1983 by Annual Reviews Inc. All rights reserved
MARXIST PERSPECTIVES IN THE SOCIOLOGY OF LAW
Annu. Rev. Sociol. 1983.9:103-124. Downloaded from www.annualreviews.org by Universidade de Sao Paulo (USP) on 03/10/14. For personal use only.
Department of Sociology, Suffolk University, Boston, Massachusetts 02108
Abstract This review considers the problems and prospects associated with the devel opment of Marxist perspectives in the sociology of law. Taking as its start ing point the efforts to construct a Marxist understanding of law through the traditional approach of legal economism, a number of directions and themes in the development of a new Marxist vision of law are explored. Alternatives to "legal nihilism" are examined in conjunction with a survey of the movement of Marxist theory toward a "looser" and "flatter" concep tion of the relationship between law and society. The role of politics, ideology, and history in the reconstruction of Marxist legal theory are then considered with special attention to the virtues and limits of "imbrication ist" and "constitutive" accounts. The analysis ends with a reexamination of the points of convergence and divergence among Marxism, sociology, law, and socialism.
INTRODUCTION: THE CRISES OF LAW AND MARXISM
The last decade has witnessed an explosion of interest in Marxist perspec tives on law. Just over ten years ago, Elliot Currie (1971: 137) could observe with confidence that there were "very few Marxian analyses in the academic sociology of law." Today, although Marxist insights have by no means revolutionized our understanding of law, the sociological questions that they have raised are no longer, as Currie charged, "unasked." To the contrary, Marxist theory in general and Marxist interpretations of law in particular have become, more central to the sociological enterprise. A number of explanations may be advanced for this noteworthy and surprisingly rapid shift. Most generally, there was what Hunt (1981 : 49) has
called a "deeply felt 'crisis' that enveloped law and legal institutions from the end of the 1960s" in Western Europe and the United States. This crisis was associated with a number of developments that breathed life into Marx ist approaches to the law: (a) the exhaustion, if not total collapse, of the "normative integration" paradigm in sociology (Abel 1980; Hunt 1981) and the decay of "liberal legalism" within legal thought and jurisprudence (Unger 1975, 1976; Klare 1979); (b) the "opening out" (Sumner 1981) of theoretical perspectives on law and other "superstructural" elements within
Annu. Rev. Sociol. 1983.9:103-124. Downloaded from www.annualreviews.org by Universidade de Sao Paulo (USP) on 03/10/14. For personal use only.
1971; Lefcourt 1971); (d) the broadening of interest in the relationship between law and social change through the study of punishment and its histoncal transformation (Hay 1975; Spitzer 1975, 1979; Foucault 1977; Ignatieff 1978, 1981; Lea 1979); and finally (e) the rediscovery in the English-speaking world of two "classical" Marxist interpretations of law: the work of the Austrian Marxist Karl Renner (1949) (for commentary see
European Marxism (see Althusser 1971; Williams 1973; Thompson 1975; Cohen 1978; Hall et at 1978; Poulantzas 1978); (c) the growing interest in political and economic dimensions of law generated by the emergence of "radical criminology" (Taylor et al 1973; Quinney 1974; Greenberg 1980a; see Sparks 1980 for a critical review) and "radical legal practice" (Black
Kahn-Freund 1949; McManus 1978; Hirst 1979; Kinsey 1979) and the work of Evgeny Pashukanis (1978. 1980) (for commentary see Balbus 1977:fn. 5; Kinsey 1978; Sumner 1979: Ch. 8; Hirst 1979: App. I; Binns 1980; Mullin 1980; Greenberg & Anderson 1981; Beirne & Quinney 1982).
Taken together, these developments help us to identify the major stress points in the Marxist theory of law and to interpret the directions its development has followed. Some of the factors outlined above are the product of political struggles, others are tied to cultural and intellectual debates, and still others are the result of the pervasive discontent with modem forms of law in all its guises. To assess the shape and substance of this ferment accurately it will be helpful to look more carefully at both the deconstruction and reconstruction of Marxist perspectives on law that have taken place over the last decade.
Although recent collections (Cain & Hunt 1979; Phillips 1980) have done much to dispel the myth that Marx and Engels were oblivious to legal issues, it is still fair to observe that they never identified law as a major theoretical problem (Campbell & Wiles 1980:x). In the absence of an adequate treatment of law in their original writings, the Marxist conception of law that first emerged in the 20th century reflected the weltanschauung of "orthodox" Marxism (Gouldner 1980; Jacoby 1981). Embracing what Hirst (1979) has called "essentialism," these accounts were wedded to the
legal ideologies. it has also created. Renner Annu.org by Universidade de Sao Paulo (USP) on 03/10/14. 1983. Cotterrell 1981a).. . mean the withering away of law altogether. Functional Analysis and the ''Loosening Project" As early as 1906 an alternative to the emphasis on legal form in Marxist legal theory became apparent in the work of Karl Renner (1949). flexible.. Insofar as Marxism is forced to throw the legal "baby" out with the capitalist "bathwater. The earliest proponent of this position was Pashukanis (1978: 61) who reasoned that "the withering away of the categories of bourgeois law will . and repressive law in "socialist" and other noncapitalist societies.MARXIST SOCIOLOGY OF LAW 105 "view that all social phenomena can be reduced or derived from the eco nomic" (Sugarman 1981: 81). Pashukanis consistently argued that there was an homology between the logic of the commodity form and the logic of the legal form (Beirne & Quinney 1982:21). Downloaded from www. a frustration because as Law is disentangled from Capitalism. For personal use only. If this view is taken seriously. The mechanical equation of Law and Capitalism by "legal nihilism" (Sharlet 1978. then as Marxism achieves its objec tives the theory of law self-destructs: "Laws as a specific object of analysis disappear" (Hirst 1979: 163). The purest form of legal economism is embodied in the identification of Law as a social form with Capitalism as an economic system. The problem these strategies face is exactly how to disentangle Law from Capitalism and fashion a more sophis ticated." Basing his theory of law on Marx's analysis of commodity exchange. While this insight has proven valuable in demystifying the law as an ideological form in capitalist societies. Before examining these strategies in greater detail it will be useful to outline the context within which they have emerged. To the extent that law can only be understood as a negative force and form peculiar to bourgeois society.9:103-124. A number of strategies have been pursued by Marxists since Pashukanis in an effort to overcome the shortcomings of economism without sacrificing the basic structure of Marxian theory. When it is tied to this logic Marxism does not so much offer a theory of law as a "theory against law" (Santos 1979. Hunt 1981 : 35) has proven an embarrassment and a frustra tion for those who have sought to advance Marxist theories of law: an embarrassment because of the unmistakable and persistent presence of the legal form." any systematic consideration of the law is stymied before it starts. and empirically defensible understanding of the nexus be tween the two.annualreviews. the entire edifice of Marxist theory threatens to collapse. It is this tendency to trace all legal phenom ena back to economic forces and structures that has created the greatest obstacle to the development of a Marxist sociology of law. Sociol. Rev. its explanation begins with the critique of capitalism and ends with its eclipse. a cul-de-sac for Marxist attempts to come to grips with law.
upon which would evolve the social functions of a 'Socialist Commonwealth'" (Kinsey 1979: 53). 6. But while an inventory of the functions and Annu. as capitalism develops we should expect that legal arrangements functional under feudal ism (e. the essence of the loosening project (Greenberg 1976) is the denial of the functional necessity of law for that system. Piven & Cloward 1971)]. The connection between law and economy is thus preserved but the functional relationship between the two is "loosened" in an important respect. And since law can serve different ends under different economic regimes. the Elizabethan Poor Laws) would become dysfunctional for and have to be replaced by laws compatible with the emerging capitalist order [e. Spitzer 1977. law cannot be treated as an "empty frame" into which new content is poured without forcing us to introduce other factors (e.) One of the most straightforward ways of distinguishing Marxist theory from traditional functionalism is to emphasize the fact that for the former elements of a class system are always dysfunctional as well as functional. mystification.g. Kinsey 1979: 52. Thus. Taking this a step further. one of the other types of reductionism identified in revisionist debates. the central mechanism of social change in class society is." however. 1983.106 SPITZER located the roots of capitalist law in bourgeois property relations.g. rather than with the form of law itself' (Kinsey 1979: 52). Beirne & Quinney 1982: 6).9:103-124. for example. . etc) to explain how the law accomplishes its ends. Horwitz 1977. Rev. For personal use only. The question thus be comes: Is it possible to provide an explanation of law that ties it to economic organization without reproducing the circularity and teleology of function alism? (See A.annualreviews. power. When systematically applied to the analysis of law these insights encour age us to view law as always at least somewhat at odds with the mode of production in which it is found. Downloaded from www. In this sense. is that it fails to specify the connection between legal form and content. a dialectical process through which the relations of production inevitably come into conflict with (are dysfunctional for) the developing forces of production. For Renner law is a "neutral framework of legality or the rule of law. As a number of commentators have noted (Klare 1979: 135. but unlike Pashukanis he was "principally concerned with the ends to which law is put. Renner's loosening and the elasticity (McManus 1978) it pro vides presage "instrumentalism" (see Miliband 1977). The most obvious problem with this "solution. according to Marxist theory. it is possible not only to envision a socialist law but also to see how law can become a political as well as an economic tool. the Poor Law Reform of 1834 (see Polanyi 1957:Ch.g. When approached from the standpoint of the "needs" of an economic system. More specifically. we should also expect that "forms and principles of socialist legality [are] developing within capitalist societies" (Sumner 1981: 88).org by Universidade de Sao Paulo (USP) on 03/10/14. Sociol.
as I argue below. they have in very different ways tried to respond to the challenge of economism in the Marxist perspective on law. Grau 1982). . Moreover. the question of why these contradictions exist or how and when they are likely to be "resolved" remains unanswered.g. along with philosophy. how to redefine the relationship between external structures. "transform and fix the limits of the mode of production. Thus law is somehow "broken loose" to do its dirty work." What he means by this is that at least . Downloaded from www. we have no way of establishing the precise functional significance of any given law. scientific formations. human subjects.annualreviews. Balibar (1970: 306). Redhead 1982: 330) is. For personal use only. aesthetic production. and political power. "structuralism" and "culturalism" are two of the most important. factory legislation and the enclosure acts in England). or parallel with a given economic order.MARXIST SOCIOLOGY OF LAW 107 dysfunctions of various laws for any mode of production establishes the contradictory character of law (Chambliss 1979. Culturalism. illustrates this logic in his argument that the interventions of the State. it offers an approach to rethinking the law/economy nexus in structuralist terms. Louis Althusser (1970: 99-100) suggests that the law.org by Universidade de Sao Paulo (USP) on 03/10/14. Sociol. Althusser's collaborator." Law is thus conceived as indepen dent of the economic system but also dependent in some sense. This "some sense" is the rub since the movement and structure of all superstructural elements (including law) are ultimately traced back to the economic system. and the law (Hirst 1980). But this dislocation does not block the path between economy and law. Thomp son in Britain. As a touchstone for many revisionist accounts (Balbus 1977. Rev. it only serves to make that path more tangled and circuitous. Edelman 1979). 1983. A major point of departure in the "structuralist" approach is the concept of the "relative autonomy" of the law. respectively. law. have their "own history" and exist as "relatively autonomous and hence relatively independent" features of the "whole. in transitional periods "the forms of law and of State policy are not. and the "Flattening Project" Of the many "isms" identified in the debate over the revision of Marxist theory. such as those that occurred in the transition from feudalism to capitalism (e. Centering around the work of Louis Althusser in France and E. these two tendencies have in many respects defined the terms and limits of the recent investigation into the role of law in Marxist theory. P. In Annu. . behind. 2. as hitherto.. and other "superstructural" elements. The recurring issue facing both of these tendencies or "schools" (Laclau 1977: Ch. adapted to the economic structure . Deconstructing Marxism: Structuralism. but dislocated with respect to it" (Balibar 1970: 306-7). Beginning as efforts to refine traditional conceptions of the base-superstructure metaphor.9:103-124. since law can always be said to be ahead of.
nor does it merely repress people by compelling or forbidding them to act. Homans 1964) to the explanatory system and to redefine history as a process driven by human subjects (Thompson 1978: 79). but law is still accounted for in the "last instance" by pulls on the visible or hidden economic strings. Thompson. Edelman 1979). In opposition to the lockstep of legal nihilism and the system imperatives of classical structural ism. he has at least opened the door to a broader view of law as a partly positive (i. For personal use only. shaping." The constitutive theory thus demands "recognition of the role played by all social actors. including even oppressed individuals and groups. this approach seeks to "bring men (and women) back in" (cf. Poulantzas breaks with the Althusserian portrayal of law in an important respect." Thus law is not simply. The emphasis on law's active. Specifically. and adjudicatory text of social life. moreover. he observes (1982: 190) that "Law does not only deceive and conceal . assumes that law is "deeply imbricated within the very basis of productive relations" (Thompson 1975: 261).9:103-124. an "ideological state apparatus. albeit from the vantage point of "cultural ism. as Althusser (1971) would have it. Thompson. The knee-jerk relation ship between law and the economy is abandoned (Beirne & Quinney 1982: 13). Sociol. . Recent commentators have drawn attention to these "functions" and tied them to the emergence of what has been called the "constitutive theory of law. Sugarman 1981) has helped structuralism move beyond a unidimensional conception of law. these rights are invested in the dominant ideology and are far from corresponding in practice to their juridical form)" (Poulantzas 1982: 190)." "It also organizes and sanctions certain real rights of the dominated classes (even though. This perspective is echoed. and "lived" character in the work of Poulantzas and to some extent in that of Antonio Gramsci (see Hall et a1 1978. . 132). Beirne & Quinney 1982). allocative. whose position is described by several observers as "imbricationist" (Sugarman 1981. Why then has structuralism been taken so seriously as a way out of the theoretical impasse facing the Marxist analysis of law? One answer may be found in extensions and refinements of the structuralist position by Nicos Poulantzas (1973. both within and with- Annu. embedded.e." by E. . P. Rev.108 SPITZER the final analysis. 1978)." According to Klare (1979: 128.org by Universidade de Sao Paulo (USP) on 03/10/14. Downloaded from www. 1983. Even though Poulantzas is quick to add that the rights granted are in an important sense illusory. the path leads back to a version of the very economism that the theory is ostensibly designed to overcome. this theory of law shifts the emphasis from law as an abstract and objectified structure to the notion of law-making as praxis: the view that law represents "a form of expressive social practice in which the community participates in shaping the moral. in the constitution of the legal order" (Fraser 1978: 148). of course. active and creative) as well as partly negative factor in the "political-social field" (cf.annualreviews. Law is.
political. Once it is redefined and flattened in this way. 1983. The impulse to treat law in this way is part of what may be described as the "flattening project": the denial of the topographic metaphor of base and superstructure in Marxist theory. and revolutionary a society is. spontaneous. if only because laws inevitably outlive their makers. and law and the "lower" economic processes and struc tures. politics. there are "invisible" as well as "visible" structures of law (Thompson 1975: 261). repres sive. ideological. or cultural practice. From the point of view of some structuralists. he is arguing that the very distinction between infrastructure and superstruc ture is flawed. is the ability to distinguish expressive from repressive law and to demonstrate how particular social arrangements prove consistent or inconsistent with each. Kinsey 1978). for example. or both? Moreover. law becomes a condition as well as a form of social practice. for instance. But the flattening project involves a movement away from this sort of theorizing for both structuralism and culturalism. constraining side of law the "imbrication ists" have created another problem: They have dissipated the structural Annu. But Thomp son is not simply suggesting that the economic infrastructure is "absorbed" by the superstructure of legal. culture. For Thompson law does not simply influence the material basis of society. a new problem arises: How can we understand the nature and significance of law as a social institution as well as a social practice? Law is never simply praxis. No matter how fluid. If law is social practice.annualreviews. Downloaded from www. reli gion. the theory of law can begin to take the interpenetration of the legal and extra-legal worlds seriously. Thompson's position is one of "cultural reductionism" (Merritt 1980: 210). since the theoretical center of gravity is shifted from the reified economic system to the flesh and blood people who create and live it. art. It becomes possible. Rev. What remains crucial to this task. to ask questions about the law-making pro cess in socialist as well as capitalist societies (Fraser 1978. it must create institutions that at some point guide and define the limits of social practice. it becomes part of that basis. Conventional Marxism has proceeded on the assumption that the archi tectural metaphor can and should be rehabilitated-as. a framework within which law-making itself takes place. Law is thus always structure as well as practice. As a series of crystallized social practices within history. in Cohen's (1978: 231) suggestion that the "roof' (superstructure) is not only supported by the "struts" (infrastructure) but also renders them more stable. . By downgrading the structural.Whatever their contin uing differences. For personal use only. Sociol.org by Universidade de Sao Paulo (USP) on 03/10/14.9:103-124. however.MARXIST SOCIOLOGY OF LAW 109 out. both schools seem to be moving toward an obliteration of the distinction between the "upper" reaches of consciousness. then how do we decide whether that practice is expressive.
it is hardly surprising that the links between law and politics become far more salient. 1983. tension at the very heart of Marxist conceptions of social change. The connections between the institutionalization of power and the practice and structures of law are thus far too important to ignore. its precise status being determined in each empirical instance. and history. it also entails a rethinking of the system in motion. For personal use only. ideology.org by Universidade de Sao Paulo (USP) on 03/10/14. the reconstruction of Marxist legal theories requires that we take a closer look at the relationship between legal and other "noneconomic" social forms. For those interested in its reconstruction the greatest amount of attention has been focused on the significance of politics. Law and Politics Once legal theory has been freed from the stranglehold of crude economism. If law is "recon stituted" (Fraser 1978:150). An agenda is not a theory. or is it better to distinguish different kinds or levels of law? In either case. IDEOLOGY. personal communication).110 SPITZER Annu. For Marxism the movement of class societies through history is premised on the tension between the forces and relations of production. Rev. Nevertheless. The major difficulty associated with the introduction of politics into the Marxist consideration of law grows out of the fact that Marxism is ill equipped to treat it as an independent and relevant variable. Beirne.annualreviews. AND HISTORY The deconstruction of Marxist legal theory has opened up an important breathing space for those who are pursuing emancipatory conceptions of law and society. Modern law is always in some sense a creation of the state just as the state is in some sense a creation of modem law (p.9:103-124. If law is embedded in the very foundations of class societies the question becomes: How can law both support and inhibit the transformation of such societies? Are we to understand law as both a force and a relation of production. does its status change from a static relation of production to a dynamic productive force? To say that law is �xpressive under socialism and repressive under capitalism hardly solves the problem. Downloaded from www. the relationship between law and the state raises serious questions for any Marxist vision of law (Miliband 1977). RECONSTRUCTING MARXIST LEGAL THEORY: THE ROLE OF POLITICS. Sociol. Thus the Battening project not only demands that Marxism reconceptual ize the system at rest. Politics has typically been submerged in classical Marxist discussions of law because of the tendency to focus on the "private" (economic) functions of law and to .
There are many instances in Marx's analysis. In fact. however. At its core Marxist theory prefers to approach capitalism as if politics were an external rather than an internal precondition of its existence. property relations). the same reasoning that leads Marxists to treat law as epiphenomenal under capitalism removes politics and the state from serious theoretical consideration. Thomp- Annu. Two directions in the recasting of politics within Marxist legal theory appear promising. and the state become part of the "constitu tive structure" of precapitalist modes of production. They may be roughly characterized as (a) Law against the State. it is usually treated as an extension of the state and the will of the ruling class. religious. as Cohen (1978: 216-30) has revealed. For personal use only. at least traditionally. Rev. may feel compelled to sepa rate the economic "wheat" (e. when we recognize that the "wage contract" of which Anderson speaks. P.g. Neither politics nor law can be taken seriously when they are either dissolved into the economy (economism) or equated with the will of the dominant class (instrumentalism). the consistent interpenetration of the two illus trates the significance of the legal/political dimension in the reconstruction effort. The logic behind this reasoning becomes suspect.org by Universidade de Sao Paulo (USP) on 03/10/14." is itself a legal construct. there is little incentive to distinguish public law and state policy.annualreviews. The reason is that Marxist theory has traditionally com prehended capitalism "as the nrst mode of production in history in which the means whereby the surplus is pumped out of the direct producer is 'purely' economic in form-the wage contract" (Anderson 1974:403). Since Marx (1970a: 689) emphasized the ways in which capitalist control was based on the "dull compulsion of economic relations. customary. and (b) the State against Capital. 1983. Beginning with E. In contrast to capitalism. But in those cases where public law is addressed. And while some purists. capitalism's "glue. legal or po litical" (Anderson 1974:403). .g. In consequence.MARXIST SOCIOLOGY OF LAW 111 treat "public" law as a "second-order" problem (Steinert 1977:438-39). the classic definition of capitalism-private ownership of the means of production-itself contains two important legal concepts: "private" and "ownership" (Tushnet 1982: 10). religion. they remain "marginal" to the organization and regulation of capitalist life. much less approach law as a factor in opposition to the state (Grau 1982). like Cohen (1978: 224-5). Thus. the "political problem" fails to emerge as either a theoretical or practical issue. Sociol. And insofar as Marxism limits itself to a critique of capitalism. Downloaded from www.9:103-124." it may be argued that while the superstructural ele ments of kinship. where he defined economic structure in legal (and therefore political) terms. "all other previous modes of exploitation operate through extra-economic sanctions-kin. Marxism's analysis of the state as an historical form also weakens its explanatory force. production relations) from the legal "chaff" (e. law.
org by Universidade de Sao Paulo (USP) on 03/10/14. Klare 1979). In fact.g. freedom of contract and property (see Neumann 1957)]. Thus the freedoms granted against the State that Thompson and other imbrica tionists explore are not at all the same as those granted through the State [e. In this endeavor the lines between the public and private spheres. of course. or both." A second consideration of politics within Marxist legal theory focuses on how the state sometimes operates against rather than in the service of Capital. Grau 1982. a number of observers have drawn attention to two important but neglected facts: Annu. that the civil rights and freedoms which make our society what it is are rights which were defined and won in struggle against the dominant interests in society. By juxtaposing "arbitrary power" and "the rule of law" it may be argued that law can operate against the state as well as in its service (see Thompson 1975). Hall (1980: 10) summarizes the position well: "We are arguing . This opposition is typically rooted in the contradictions of legal development within class societies. procedures. Certain kinds of individual rights help the State to grow while others hold it in check.annualreviews.9:103-124. Downloaded from www. Redhead 1982). but also address the interplay between abstract rights and principles on the one hand and concrete proce dures and practices on the other. 1976. and justice. Yet to talk of "granting" these freedoms and rights is. The theory must not only specify the ways in which "rights" such as habeas corpus. equality. Redhead 1982). . must be distinguished as clearly as possible. to miss part of Thompson's point. Sumner 1981. Rev. not bestowed on society by theory. 1983. . although frequently blurred (Unger 1975. Sociol. Since the capitalist state must continually legitmate itself in terms of the values of individual rights. the rule-of-Iaw analysis is largely defined in terms of the possibility and desirability of reconceiving law as a product of class struggle-the "missing link" in orthodox and structuralist accounts (Sumner 1981.112 SPITZER son's contributions and the ensuing "rule of law" debate (Fine et al 1979. In challenging traditional Marxist concepts of the state. and practices (Law) that actually serves these values. an extension of power. there is a strong emphasis on "winning" rather than granting rights. but also that they frequently stand in opposition. The nub of the problem for Marxist theory comes in specifying the conditions under which the rule of law and the "rights" it provides are in fact a barrier to power. Fraser 1978. freedom. at least some of the time. trial by jury. For personal use only. and the right to organize unions (Thompson 1979) are situated within history (Picciotto 1979). . it must develop a system of rules. Because he and other imbricationists present law as an "arena for struggle" rather than as either a reflection of economic imperatives or a benefaction of the state. a number of commentators within Marxism have begun to suggest not only that Law and State are empirically distin guishable. The notion of Law against the State captures the contradictory reality of capitalist arrangements.
Kirchheimer 1969. by men and women and that neither Capitalism nor the State is an eternal social form. and the law. reproducing labor power. . Hall et al 1978). fas cism) wherein the power of the state was "captured" and used to diminish if not destroy the ability of the capitalist class to administer the economy and "make" the law (see Neumann 1944.org by Universidade de Sao Paulo (USP) on 03/10/14. 1983." Two possibilities are relevant here: the seizure of power from "above" and from "below. If Marxism is to be taken seriously as an analysis of capitalism and socialism.9:103-124. "profiteers. and (b) power groups in capitalist societies may use the state and its laws against the interests of both specific capitals and capitalism in general. Emphasizing the functions that must be performed to maintain the capitalist system as a whole (e.e. What they do provide is a more complex analysis of the articulations among the economy." But because the "logic of capital" forces the state to pay for its independence by serving another and deeper set of "system needs. certain types of administrative law.g." On the one hand.MARXIST SOCIOLOGY OF LAW 113 (a ) The "capitalist state" may use law as a means of "disciplining" specific capitals in the interest of capitalism as a whole. long range planning. providing necessary infrastructure. etc) become a brake on renegade capitalists and a coordinating." these theories never really release the state from capitalism's grasp. etc) yet remain loyal to "capital in general. it is clear that capitalism has taken a number of "exceptional" forms (e. One variant of this position is developed by the "capital logic school" (Jessop 1980: 340). this school argues that "since the state and state intervention developed exactly because these tasks could not be performed profitably by single capitals (otherwise they would have) and since the state has to step out of the competition between capital ists to fulfill those tasks it must (and does) have a certain amount of independence from capital and its factions" (Steinert 1977: 439). environmental law." "unethical" manufacturers. Rev. and regulat ing factor in the interest of capitalism. Gramsci 1971. antitrust legislation. On the other hand.annualreviews. guar anteeing internal and external markets. Annu. Downloaded from www. securing social order. at least in part. The second way of interpreting the role of the state vis-a-vis capitalism is based on the recognition that in some circumstances the power of the state may be harnessed by groups that lie beyond the immediate boundaries of capitalism's "interests" and "needs. Sociol. organizing. For personal use only. it must address both of these ques tions as part of any investigation into politics and the law. This independence explains how and why the law can work against "particular capitals" (e.g. In the first case specific laws (i. there is the obligation to explore the seizure of power as part of the process through which capitalism is trans formed into socialism-keeping alive the possibility that history is always made. corporate polluters. politics. products-liability law.g. and investment in human capital). union breaking companies.
And to the extent that this pool is fed by the everyday experiences." above). it can no longer be confused with direct manipulation. Hirst 1979." If ideology is. the relationships among ideology. traditions. and frustrations of complex. and assumptions making up the culture and consciousness of any society.Rather. From this perspective. and Sumner 1979) has stimulated a reexamina But recent work on the theory of ideology in Marxism (Lichtman tion of ideology's meaning. cliches. as doctrine. Ideology. "what most sharply distinguishes a propagandis tic from an ideological presentation and interpretation of facts is . Freed from the assumption that ideology is simply reality turned upside down. that [the former's] falsification and manipulation of truth is always conscious and intentional. classical Marxism restricts the role of ideology to 1978) by which capitalists rule. by definition. aspirations. Kinsey 1976: 566) has suggested. Sev eral aspects of this process are relevant to the position of ideology in Marxist legal theory. is mere deception-in essence self-deception-never simply lies and deceit. esoteric language. Two dimensions of law have recently been explored in this regard: law as magic and as doctrine. Downloaded from www. To the extent that Law as a way of reasoning. and politics become interesting and camera obscura (Lichtman 1975). but the ideological .9:103-124. Part of the significance of law in class societies resides in its ability to mystify social life. no more than a veil pulled over the eyes of the working class by its masters. and as practice is couched in "professional secrecy. the epigram "the ideas of the ruling class are in every epoch the ruling ideas" (Marx I 970b : 64).sources and implications of law can also be subject to more careful scrutiny. For personal use only. As Arnold Hauser (cited in Muraskin that of a "confidence trick" (cf. Sociol. 1983. on the other hand.114 SPITZER Law and Ideology The major obstacle to the investigation of the relationship between ideology and law has been the long-standing Marxist habit of defining the former as "false consciousness" and the latter as "repression. the ruling class never creates legal ideology out of thin air. The most general of these is the recognition that ideology must be distinguished from propaganda.. Rev. Kellner 1978. function. it must be collected from a kind of "ideological pool" within the sea of beliefs. then there is little point in studying its connection to the politicalllegal apparatus or assessing its role in promoting or inhibiting social change.annualreviews.org by Universidade de Sao Paulo (USP) on 03/10/14." Insofar as ideology is embed ded in the consciousness of both the deceivers and deceived. law. as in a all classes within society. investigations of legal ideology become central to the reconstruction of Marxist legal theory. and role within Marxist theory.. grand . By beginning and ending its consideration of ideology with Annu. 1975. half-truths. by a scheming ruling class. Not only can ideology itself be defined as an im bricated force (see the discussion of "flattening.
for example. Horwitz 1977: Ch. In this body of work. " (Klare 1981 :451).9:103-124. Klare 1979) as efforts to construct coherent legitimating accounts of the nature of law.MARXIST SOCIOLOGY OF LAW 115 ceremony. special clothing.In this respect Law is the opium of both the masses and the ruling class. Horwitz 1977: 254).. it becomes something special and mysterious: a reified social form (Gabel 1980). Downloaded from www.When it is "decoded" (Klare ical functions of doctrine are both revealed and rendered less effective.. 1981) in this way. For personal use only. The assumption here is that legal texts provide an important part of the ideology of law-an ideology that helps legitimate and mediate repression through a "legic of obfuscation" (Kennedy 1979: 220). the rituals of legislation and the occupational status of the judge" (Sumner 1979 :275). The ideological functions of legal doctrine within capitalist societies have been demonstrated in a number of ways. Law (like Science) performs an important set of ideological functions.. M. and totemic character) and consciousness (reflected most generally in bro mides like "all men are equal before the law" and "a government of laws not men") provides an important ingredient in the foundation of class rule -an ingredient often taken as seriously by the rulers as by the ruled. At another level specific types of law and their interpretation are analyzed as they contribute to the ideological reproduction of capitalism. apolitical. by making 'legal reasoning seem like mathematics... The fact that the ruling class has a more strategic position and a greater interest in the manufacture of this opium (Sumner 1979: 270) in no way exempts them from all its addictive effects.inevitability' about legal decisions" (M. The task of critical inquiry is thus to "uncover the constellation of assumptions. of . 8) and liberal legalism (Ken 1976. and to the extent that it is embedded in commonplace rituals such as the pledge of allegiance. and which. As an ingredient in the glue used in the attempt to put the humpty dumpty of culture back together after capitalism has pushed it off the wall.. Unger 1976. 1973. Rev. The reified character of Law as both practice (reflected in its ritual.org by Universidade de Sao Paulo (USP) on 03/10/14. in spite of its claims to . 1983. values and sensibilities about law. politics and justice these texts evince.' conveyed 'an air . ceremonial. and inexorable. carefully structured courtrooms. Part of the critique concerns shortcomings in both liberal and conservative accounts of the patternjng of legal decisions and discourse.The main targets here have been legal formal ism (Kennedy nedy Annu.Thus. As such it formed "an intellec tual system which gave common law rules the appearance of being self contained. to reveal their latent patterns and structures of thought . the ideolog Legal interpretation is the primary process of self-legitimation for the legal profession.annualreviews. Sociol. legal formal ism can be interpreted as a specific legitimating ideology corresponding to a particular stage in capitalist development. the ideological features of particular types of laws are delineated and tied directly to the fact that capitalist law. .
the family (Olsen 1983).org by Universidade de Sao Paulo (USP) on 03/10/14. 1983. Polan 1982.annualreviews. Morton Hor witz (1977: 210) argues that it expressed "the triumph of contractarian ideology more completely than any other nineteenth century legal creation . Klare have been explored in areas as diverse as private (Kennedy (1981: 452) argues that "collective bar gaining law articulates an ideology that aims to legitimate and justify un necessary and destructive hierarchy and domination in the workplace. Abel (1981 : 206-7) indicates that tort doctrine is significant in the reproduction of bourgeois ideology because it reinforces individualism. health care (Rosenblatt 1981). politics. (Tushnet In most cases. 1982. .. Rev. 1982)..9:103-124. criminal law (Kelman 1982). Gabel & Feinman 1982). the law had come simply to ratify those forms of inequality that the market system produced. And this suspicion has grown paripassu with Marxism's increasing attention to the links among law. Sociol. and gender roles (Rafter & Stanko 1982. and law relating to race relations (Freeman 1978.116 SPITZER transcendence. 1)--has become ever more suspect. inquiries of this sort seek to establish a link between the legal principles reflected in the evolution of doctrine and specific impera tives of capitalist society. A few examples may be considered: In discussing the "assumption of risk" doctrine in workmen's injury cases. Yet it is also clear that ideology is never fully formed. and "re sponds to intangible injury by extending that fundamental concept of capi talism-the commodity form-from the sphere of production to the sphere of reproduction. the notion that the law is simply a neutral instrument-a notion itself associated with the rise of capitalism (M. torts (Abel 1981). For personal use only. Downloaded from www. and ideology. becomes a prism through which the alienating." Looking at the ideological significance of the legal contract. and exploitative features of capital ism are refracted." Finally. Thus the law. The ideological dimensions of law Annu. labor law (Klare 1978. Cotterrell (198l b: 63) suggests that the idea of "equivalence" and "universality" embodied in this genre of law "promotes the breakdown of all major status differentials unconnected with the needs of an economy based on market exchanges and confirms and defines the particular form of individualism in terms of which capitalist social relations are conceptual ized. 1976) and public 1979) law. The interpretation of the law as doctrine is a vital process in the demystifi cation of law. Horwitz 1977: Ch. Many examples of this type of analysis are beginning to appear in Ameri can law journals and other publications. in spite of itself." In a critique of American tort law." As the legal profession and those who reproduce it (law professors) have become more self-conscious about the ideological sources and implications of their work. 1981. Stone 1981). offers symbolic support for inequality. constitutional law (Tushnet 1981). must always reflect the underlying contradictions and grim realities of capitalist life. the law of contracts (Gabel 1977. Taub & Schneider 1982). divisive.
the explanation of legal change forces Marxist theories of law out of their analytical straitjacket. Marxist theory must measure itself by its ability to explain major transfonnations in the organization of economic. 2). based as it was on visions of inexorable progress toward "lawlessness. political. to which we now tum. disputes. Marxist theory is haunted by the "ghost of evolutionism" (Jacoby 1977: 78. Rev. it also regis ters and presages its defeats. occasionally stopped and reversed-when there may be none" (Jacoby 1977: 74). If we study the movement of law within its own history. the contradictory nature of law threatens to destroy the symmetry and closure of any Marxism that refuses to acknowledge its mediative and transitory character. But like most of the 19th century attempts to understand the workings of Western societies (Bock 1952). Law always responds in some fashion to the voices and actions of those who are its subjects. Law and History At the heart of any Marxist inquiry lies the question of social change. Marx (cited in Jacoby 1981 :22) was careful to note that "human history differs from natural history in that we have made the former. human failings. halting. articulated. and social life. The power of the ghost is evidenced in the willingness to reduce social change to "a developmental schema. legal ideology not only reinforces. Perhaps more than anything else. Downloaded from www.annualreviews. enshrines." is only the most blatant of these themes. as it invokes the role of history.MARXIST SOCIOLOGY OF LAW 117 Annu. and agreements that are trans fonned into law leave their imprint on both the fonn of legal institutions and the content of legal ideas. but it isn't clear what those beyond the legal establishment can build on the ruins. The "withering away" thesis.org by Universidade de Sao Paulo (USP) on 03/10/14. Many of the excesses and distortions of orthodox Marxist legal theory may be traced to the insistence that law must follow society and society must change according to a preordained plan. and misunderstandings of social existence. Gouldner 1980: Ch. and legitimates the victories of the capitalist order. rather than forcing it to follow the movement of "historical laws." As a product of human activity rather than nature. Hence. Once again. the history of law reflects all of the contingencies. Sociol. but not the latter. Whatever else it may claim to be.9:103-124. or internalized at the doctrinal level. But to the extent that "critical legalism" (see Unger 1983) restricts its critique to the level of doctrine and ideology. uncertainties. it suffers the same fate. registering a progression --difficult. There may be value in destroying the artificial coherence and legitimacy of legal thought. The concrete struggles. "Legalism" suffers from "an overemphasis upon judicial institutions and the relative neglect of the fonnulation and administration of law" (Abel 1980: 828). It is this issue." it . 1983. But there is another side to the Marxist vision of history. in this sense ideology is as much emergent as it is imposed. For personal use only.
org by Universidade de Sao Paulo (USP) on 03/10/14. Downloaded from www. Two major advances are associated with the introduction of historical considerations into Marxist legal theory: (a) the historical specification of the functions of law.118 SPITZER becomes possible and desirable to examine the richness of law in the past as well as the present.. Marxist investigations of law may also benefit from a more careful look at the nature of law both between and within different modes of production. . the process of "modernization" is explored (Greenberg 1980b. Comparisons of this sort may be made over the actual passage of time or by looking at the ways in which different modes of production (e. political.g. For personal use only.. Cohen 1982) in order to understand how the varieties of economic. the focus is on how specific laws operating under one mode of production (e. and (c) in general.annualreviews.9:103-124. a few studies in the Marxist tradition have recog nized that laws may serve different purposes under the same economic conditions and the same purposes under different economic conditions. nor do specific legal arrangements necessarily stay within the boundaries of the mode of production in which they are expected to appear. way of organizing economic life (e. On the other hand. and cultural organization prevailing in precapitalist societies acquiesce. capitalist and precapitalist) confront each other in the modem era. and (b) the reexamination of the major time frames within Marxist analysis: the modes of production. "legal techniques may be created in the course of development of particular spheres of economic activity while legal systems . In the first instance. In the second case. Through this type ofhistorical compari- Annu. Fitzpatrick 1980a. Snyder 1980). resist. (b) the writ of trespass under capitalism "derives originally from feudal ideologies of landowners. As these examples suggest. 1983. more modern. or compromise with the legal imperatives of the capitalist world system (Fitzpatrick 1980b. it has become obvious that legal change does not correspond neatly to the life course of any given mode of production. capitalism) (see Cohen 1978 : 245-48).g. have no place for such techniques within their body of legal doctrine" (Cotterrell 1981b : 57-58). Although Marxist legal theory has clearly suffered from an insistence that specific legal forms and contents must be linked with distinctive modes of economic organization. that the same law can accomplish different tasks and serve different masters over time. On the one hand. Sociol.g. it has been recognized that the functions of law are historically contingent. Several examples may prove instructive on this point: (a) Vagrancy laws served two very different functions over several hundred years in precapital ist England (Chambliss 1964). reflecting feudal relations of production where territoriality and battles for land were crucial features" (Sumner 1970 :273). Comparing law across modes of production allows us to acknowledge the "slippage" between law and economy without denying the connections between the two. Rev. Roman civil law under slavery) are appropriated to fit the instrumental and ideological purposes of another.
and advanced capital ist production-constitutes. epitomized by the fact that "the content of the contract may be disputed but the form is never questioned. This dialectic of danger and hope must inform any attempt to move beyond what we have considered thus far. For personal use only. The recovery of history from the "genetic fallacy.annualreviews. In addition to the value of studying law across modes of production. Here Kinsey is suggesting that the nature of social control under capitalism adapts to and reflects the historically rooted problems associated with class rule. In an investigation of despotism and legality.9:103-124.MARXIST SOCIOLOGY OF LAW 119 son it becomes possible to investigate simultaneously both diachronic and synchronic aspects of legal and economic l if e. The despotism of legality is. 1). 1983. and legality. The historical and contemporary reasons for this silence are not so strange as to be belabored here. on the Annu. SOCIALISM AND LAW: TOWARD A CONCLUSION While Marxist theory has much to say about law and capitalism. unpublished). subject of law and socialism it has been strangely silent. as Kinsey (1979:62) has observed. however.org by Universidade de Sao Paulo (USP) on 03/10/14. for exampl e. Rev." offers the hope of a new life for a theory facing rigor mortis (Jacoby 1981: Ch. a peculiar form of de spotism: the despotisms of property. it is also useful to pay closer attention to historically specific legal variation within these economic forms. Marxist legal theory also faces centrifugal forces that threaten to "loosen the theory until it vanishes into a cloud of words and intentions" (R. the early period of modem industry. Kinsey (1979:48-49) delineates three periods in the development of capitalist p roducti on "wit hin w hich qualit ative changes in the control of organization of the labor process are visible. Blackstone's 18th cen tury emphasis on the security of private property (see Kennedy 1979)] and control over machines (as found. An interesting example of how this sort of periodization may advance Marxist understandings of legal relationships is found in the work of Richard Kinsey. Unger. What is important. M." Each of these three periods -manufacture." like the recovery of politics from "instrumentalism" or "statism" and ideology from "false consciousness. according to Kinsey. Such a theory will have to explore the nature of law in two contexts: "actually existing" socialist states (Bahro 1978) and states (or collectivities within them) that are moving toward socialism. in claims to comm ercial liberty). the factory. is whether in light of the deconstruction and reconstruction I have described a theory of law under socialism is likely to emerge." By distinguishing this type of social regulation from earlier varieties based on control over property [cf. Despite the relative longev- . Sociol. we can begin to refine our understanding of how phenomena as broad as capitalism and law are intertwined through time. Downloaded from www. But in breaking loose from the chains of orthodoxy.
However. and more or less transitory and submerged systems of "people's law.org by Universidade de Sao Paulo (USP) on 03/10/14. The relationship between political constellations of this sort and their more institutionalized counterparts can be studied within all types of economic systems as part of the dialectic between law as alienation and praxis. and Eastern Europe. The growing gaps between the ideologies. and persistent forms of "crime" (Black 1983) on the other.annualreviews. For personal use only. Downloaded from www. it has been to assess its deeper dimensions and implications. the hidden economy. although their very fluidity and confusion create greater oppor tunities for study (e. Santos 1977. of what Santos A promising way of looking at these inconsistencies is the examination (1979) has called "dual power. of course. can be treated as a monolithic social formation or deforma tion. therefore. and reali ties of legal affairs in both types of systems provide a fertile ground for critical research.g." Under stable pre. rather than law or sociology. Sociol. to vigilantism. The fundamental question framing this inquiry may now be restated: Which is likely to wither-law. worker's courts." These arrangements may exist alongside. that actually withers away. The decline of conventional Marx ism as an explanatory system-only one aspect of which I have examined here-is even more striking when we consider that it has been accompanied . questions about law and socialism can be productively redefined. sociology because "socialism suppresses social science" (Cohen 1980 : 302). Spence 1982). it may be Marxism. China. Everything from neighborhood justice. and local mediation postrevolutionary situations as well as during periods of revolutionary fer systems on the one hand. tribunals.and ment it is possible to identify embryonic. 1983. Issacman & Issacman 1982. situations. sociology or Marxism? The answer will depend. relatively few accounts of law have been able to penetrate cold war ideology in the West and party science in the East. self-conceptions." at whatever stage of development.120 SPITZER ity of "actually existing socialism" in the Soviet Union. This may also be true in insurrectionary or revolutionary Annu. But the bright light of what has traditionally been promoted as socialism may blind as well as reveal. Rev. within.9:103-124. poorly organized. The unification of theory and practice promises to end the sociology of law: "in the bright light of socialism the torch of the specialized investigator is invisible" (Cohen 1980 : 302). or in explicit defiance of official law. neither "Socialism" nor "Capitalism. on whether Marxism can meet the challenge posed by its theoretical crisis. Since socialist law is rarely presented to extremely difficult for Western scholars the West in other than approved form. can embody these structures and episodes of law. In this and certainly other ways. A blinkered Marxism will remain content to discount both law and sociology in the "revolutionary struggle": law because it will inevitably "wither away". 1982.
1 1 :87 1-88 Balibar. 1983. NY: Avon Books. London: New Left Books. L. Am. E. eds. L. 1979.org by Universidade de Sao Paulo (USP) on 03/10/14. Marx and Engels on Law. Karl Marx 's T heory 0 / History: A De f ense. 238 pp. 3 8 1 pp. NY: Pantheon. A. G. J. 1982. Foreward. Prin ceton: Princeton Univ. and totally explanatory system. P. pp. Binns.. 1970. CT: JAI Press. p. appropriately pedigreed. NJ: Barnes & Noble. Greenwich. 1982. ed. In Marx. 288-309. IV. Anthropol 54:486-96 Cain. R. Kairys. Baibus. L. T he Alternative in East ern Euro pe. 573 pp. 1 980. and all this has come about in little more than half a century" (Gouldner 1980 : 4). C. 253 pp. ed. P. 14:805-29 Abel. I. 1982. L .annualreviews. Law and Marxism. A sociological analy sis of the law of vagrancy. ed. In those cases where Marxist theory gives up its search for "universal rational izing principles" (Horwitz 1 9 8 1 ) and its claims to being an all-encompass ing cosmology-aspirations shared. 1980. In reflecting on the contradictions between Marxism's political and theo retical status it is clear that the Marxist analysis of law need not stand or fall on the basis of legal "successes" in actually existing socialist societies. 369 pp. ed. Althusser. pp. Wiles. Sociol. Cohen. 1952. E. Dr. 1970. L. E. W. it is important to keep in mind that "about one third of the world's population lives under the governance of states regarding them selves as Marxist. 340 pp. 1 977. Anderson. Balibar. Redirecting social studies of law. . See Altbusser 1 970. M" Hunt. pp. A critique of American tort law. S. R. London: New Left Books. R. 2:327. NY: Wiley. Literature Cited Abel. In T he Politics 0 / Law. Cohen. Press. Prabl 12:67-77 Chambliss. T. Campbell. pp. Deviance and Social Control. g. T. Cohen. ed. Phillips. R. L. Whatever we think of Marxism's theoretical strengths and weaknesses. Soc. ed. Althusser. 1 980. Western crime control mod els in the third world: benign or malig nant? In Research in Law. Crime as social control. pp. Spitzer. Marxist perspectives on law can become part of the project that Marxism holds so dear-the harnessing of law to the purposes of society rather than the harnessing of society to the purposes of either capitalism or law. For personal use only. Radical Law yers: Their Role in the Movement and in the Courts. Am. 1980. 1 964. Scanlon. NY: Pantheon. 1978. eds. 1979. W. Quinney. Capital & Class 10:100-13 Black. 309 pp. J. London: Academic. 274 pp. J" ed. Annu. on its ability to provide a logically impenetrable. Lineages 0 / the Absolut ist State. Sociol Rev. 1971. D. Althusser. S. P. Press.MARXIST SOCIOLOGY OF LAW 121 by the unprecedented "success" (see Jacoby 1 98 1 ) o f Marxism as a political rallying point. Vol. Babro. Chambliss. M. Karl Marx and the with ering away of social science. 321 pp. Cohen. 1 72-84. 1974. 1 99-309 Beirne. 463 pp. The object of Ca pital In Reading Ca pital.. 1981.9:103-124. Contradictions and conflicts in law creation. 2 8 1 pp. NY: Monthly Review Press. Oxford: Oxford Univ. 71-198. 1971. The basic concepts of his torical materialism. At that point. or. Spitzer. Justice and History. A. Lenin and Philosophy and Other Essays. ironically enough. 48 :In press Black. 320 pp.. R. P. G. Marxism and Law. 1983. as some ideologs would have it. A. In Marx and Engels on Law and Laws. Commodity form and legal form. K. Rev. Law & Society Rev. by its archenemy positivism-it can get down to the business of studying law. Torts. Law Society Rev. J. Evolution and historical process. Nagel. Bock. Downloaded from www. D. Law & Society 8:199-2 3 1 Abel. 1978. In Research in Law and Sociology. ix-xL Totowa.
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