You are on page 1of 17

144 Australian Journal of Law and Society Vol. 2 No.

JURISPRUDENCE AND CRITICAL LEGAL THEORY

THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE


edited by David Kairys
New York: Pantheon Books, 1982
321 4- x pp
paperback: ISBN 0-3914-51981-7 $16.95
hardback: ISBN 0-394-71110-6 $64.00

THE LEFT AND RIGHTS: A CONCEPTUAL ANALYSIS


OF THE IDEA OF SOCIALIST RIGHTS
by Tom Campbell
London: Routledge and Kegan Paul, 1983
253 + pp, $14.50
ISBN 0-7100-9085-4

Professed Socialists are also a very mixed lot, and if joining them meant
inviting them indiscriminately to tea I should strongly advise you not to do it,
as they are just like other people, which means that some of them steal spoons
when they get the chance (Shaw 1982:122).

I
Introduction
These books are important attempts by an assortment of radical scholars to
address many of the questions that have for some considerable time dogged what
might be termed traditional legal theory. This terrain has in the past been given scant
attention by progressives and it might be worth exploring some of the reasons why
this has been the case as a prelude to assessing the overall value of these particular
contributions. Historically, one undoubted factor has been the economistic
tendencies of much Marxist and Marxist-influenced scholarship. This has led to the
primary focus of analytical attention being directed to the economic infrastructure
Reviews 145

of social orders while their superstructural elements law, to be sure, included


have been glossed over precisely because of their perceived derivative nature. A
theoretical position which assumes that the legal can be read off from the
economic is necessarily driven to devalue attempts to come to terms with the various
specific configurations of law and legal theory. This, in turn, has induced abstention
from debates within jurisprudence proper almost on the presumption that they are
at best peripheral (and at worst irrelevant) to the objectives and concerns of radical
analysis.
This weakness, for a weakness it undoubtedly is, does not however give the full
picture. A second central factor has been the traditional dominance exercised over
legal scholarship in the Anglophonic world by the practising profession. This has
meant that legal academics, even if having no substantive experience of practice
themselves, have nevertheless been dancing to the professions tune. Where attempts
have been made to transcend the practice-oriented writing of case notes, treatises
and exegetical commentary, this has almost invariably been limited to the
explication of doctrinal problems and the establishment of a theoretical self
awareness and justification of current practices. Such research has most commonly
manifested itself in exploring the nature of judicial practice and the various
meanings of terms like law, legality, justice; again, with the functional requirements
of professional competence never far from mind.
The last couple of decades has witnessed a structural shift. The expansion of law
faculties in the sixties and seventies created openings for scholars who had no
institutional or professional ties with, or general allegiance to, the legal profession.
At a more fundamental level, the emergence of the corporate welfare state has led
to a breakdown of the barriers which traditionally separated law from politics on
the one hand and administration on the other. This in turn has brought law under
the microscopes of sociologists, political theorists and philosophers. This
concatenation of circumstances has fuelled a critical jurisprudence of which these
texts are in no small measure representative.

II
The Politics of Law: Introduction
The Politics of Law edited by David Kairys is a collection of essays (some being
no more than notes) from a radical perspective on American legal theory and
practice. The book bears witness to the vibrant Conference for Critical Legal Studies
in the US and this collection is very much a Critical Legal Studies reader. The essays
themselves are divided into three groups. The first deals with legal theory, in
particular those decisive philosophies that have underpinned the study of law
since the early Republic. The second focusses on substantive fields of law and
finally, iconoclasm completed, a range of alternative progressive approaches are
advanced. As the blurb emphasises, the overall strategy of The Politics of Law is
to lay[ ] bare the conflicts and power struggles that form the bones and sinew of
the august body of American law. Consequently much attention is directed at the
legitimating and obfuscatory function of liberal legalism. Perhaps the most
remarkable thing about the emergence of the Conference for Critical Legal Studies
is that at a time when American institutions generally have been moving to the right,
it has represented a sharp lurch to the left in what has, traditionally, been a
146 Australian Journal of Law and Society Vol. 2 No. 1

conspicuously conservative domain, the law school. The measure of this lurch can
be seen by examining the various theories contained in this generally representative
collection.

Critical Legal Theory: The Particulars


The Politics of Law begins by attempting to identify the philosophical
interconnectedness of legal reasoning, traditional jurisprudence and legal education.
The most ambitious and perceptive essay here by Elizabeth Mensch entitled The
History of Mainstream Legal Thought is a critique of the major paradigms of
American legal theory over the last 200 years. In historical sequence they are: pre-
classical legal consciousness which cast lawyers in the role of trustees for the
interests of the whole community (p 19). This gave way to a classical
consciousness characterised by a rationalisation of the common law into
a few general and powerful but clearly positivised conceptual categories
(like property and free contract), which had been incorporated into the
Constitution as protected rights ... Furthermore, as integrated into the
constitutional law structure, the rationalisation of private law meant that the
boundary between the realm of private autonomy and the realm of public
power could be objectively determined by reference to specific common law
doctrine (pp 24-25).
Importantly, Mensch refuses to conclude that this is evidence merely of a
judiciary imposing its economic priorities on the nineteenth century legal structure,
a conclusion she rightly characterises as trivialising the classical conceptual scheme,
since courts during the classical period ... by no means overruled all legislation
designed to regulate corporate power (p 26). Rather, the significance of the scheme
lay in the claim that the boundary between public power and private rights could
be objectively found. In this sense her analysis strikes a chord common to almost
all those who call themselves critical legal theorists: namely, a rejection of
instrumentalism, that is, the thesis that sees law purely and simply as the tool of a
manipulative ruling class. The extent to which the essays in this volume succeed in
this respect will be considered in more detail below.
A full-scale attack on the objectivist credentials of classical consciousness was
the distinctive feature of the next phase, legal realism. The realists emphasised the
indeterminacy of rules and in so doing undermined the central tenet of liberal
legalism that insists on the incommensurability of legislation (subjective act of will)
and adjudication (objective exercise of reason). All the subsequent forms of
theorising, Mensch adds, have been attempts to put the Humpty Dumpty of liberal
legalism back together again. This essay is an excellent piece of historical analysis
and can only be faulted for its somewhat dismissive and overly brief treatment of
Rawls and Dworkin whose influence has been considerably greater than Mensch is
prepared to admit. This blemish is more grossly present in a number of other articles
and is one of the major weaknesses of this collection. For instance, Peter Gabel and
Jay Feinman heroically attempt to cover three centuries of contract in twelve pages,
while Mark Tushnet takes on the colossal subject of corporations and free speech
in ten. Perhaps most striking of all though is Edward Griers effort at distilling the
essence of Gramscis theory in six pages, in particular since a number of
Reviews 147

contributors do make explicit reference to Gramsci in other parts of the volume.


These shorter essays will, with difficulty, persuade those of the liberal legalist cast
of mind. The exciting developments in legal scholarship which these essays draw
from are occluded rather than exemplified by the brevity and the consequent
superficiality of these pieces. This criticism is hardly answered by the pragmatic
claim that a broad exposure to the diverse range of critical legal studies is an
important political exercise. No doubt, but there is questionable value where the
result becomes something akin to a peep-show.
In the criminal law section the first contribution by Mark Kelman presents a
summary of mainstream and left criminology. Mainstream criminology, he
maintains, comes in the following broad categories: the economic (social agent as
cost-benefit analyser), the bad-man (the criminal as a victim of inherited
characteristics) and the wicked-choice (the agent as wilfully evil). These he then
subjects to radical critique. The ensuing critique, however, rarely gets beyond
ridicule. Thus, in his attack on bad-man theories he refers to obviously crazy
searches to identify born offenders (p 219), and as for the economic theory he
claims that Professor Richard Posners supposition that premeditated murder is
punished more severely than unpremeditated murder because one is more likely to
get away with it, and thus the expected punishment would be lower unless the
nominal punishment is set higher, is as implausible a hypothesis as one can imagine
(id). Ridiculous such a conclusion might be, but progressives, if they are to displace
mainstream criminology must comprehensively refute the arguments of the likes of
Posner, now a federal judge, whose theories are becoming increasingly influential,
in part, because they have been insufficiently confronted in the past. Responses like
Kelmans only serve to alienate those who might be open to persuasion. Indeed, the
level of critique here is especially disappointing given the effectiveness of his assault
on this position in an earlier article (Kelman 1979).

Kelmans review of radical criminology is much more searching. One cannot but
agree with his identification of the major flaw in the critical approaches of the last
two decades: the tendency to romanticise deviants, to see them as in some way
expressing an inchoate insurrection against the injustices of the status quo. This
approach, as Kelman rightly adds, ignores the obvious fact that it is most commonly
the victims of that status quo who, in turn, become the victims of this insurrection,
particularly in the case of street crime, property offences and violence. He
continues:
[f]or critical theorists to minimise the centrality of the experience of terror and
victimisation a far more overt feeling of impotence than most people feel
in any other social setting, including hierarchical and dominating work
relations seems both politically inept and counterfactual (p 223).
It is precisely the abstentionist politics of such a position that has allowed the Rights
Law and Order campaign to gain increasing popular credibility over the last few
years.
The importance of this point is strengthened by a proposal that radical research
should be directed to the specific features of marginalised groups, and the particular
social and historical contexts within which the process of marginalisation takes
148 Australian Journal of Law and Society Vol. 2 No. 1

place. The advantage here is that it breaks with the unilinear, simplistic thesis that
crime is caused by capitalism, and that therefore by implication, the solution to the
problem of crime is the dismantling of this economic form. What follows from his
position is a different political strategy whereby progressive politics are addressed
to concrete areas of reform as an interim step toward a socialist crime policy.
Unfortunately, Kelman, as so many others in the book, does not venture into this
area. It is a weakness with the collection as a whole, a point which will be discussed
in more detail later.
Having rightly criticised the romanticist approach to crime, however, he
proceeds to distance himself from right-wing attacks on criminality by suggesting
(implausibly) that the world is not unambiguously worse for their [criminals]
presence (pp 226-7), and that the benign aspects of the welfare state are, in
significant part, responsive to fears of violence and takings (/<i). It is difficult to
see in the history of the welfare state any significant development resulting from the
incidence of intra-working class crime. Indeed, borrowing Richard Abels point that
we do not subject those we love to danger and compensate them later, but rather
take preventive action (p 198), even if welfare state advances could be attributed to
the victimisation of the poorer sections of society, it would be hard to see it being
any more benign than traditional prevention and deterrence crime-control
techniques.
William Chambliss contribution, Toward a Radical Criminology, begins with
a useful general history of the emergence in the US of radical criminology and it is
hard to disagree with his central point that it is the questions we ask that determine
the value of the answers we come up with, in criminology as elsewhere. Our
research, therefore, he suggests, should focus on the contradictions inherent in the
state rather than trying to explain why particular individuals commit crimes. One
reason given for the unimportance of the latter activity is the foolhardiness of trying
to defend radical criminology from its critics charge that it fails to offer any
adequate explanations of crime. Chambliss adds that [j]udged by the standard of
producing valid generalisations that meet even minimal scientific requirements, all
social science is a failure (p 236). This proposition would appear to introduce an
unfortunate relativism into criminological theory. After all, if no theories are
scientifically adequate, how can we, or why should we, rationally choose one in
preference to another? Chambliss here seems to be confusing the minimum
requirements for an adequate social science with those necessary for natural science.
If radical theories do not square better with the former than their liberal or
reactionary counterparts then radicals will be hard put to argue against a
criminological pluralism since all are equally rational or irrational. Surely, it is the
explanatory adequacy of any theory that is the test of its strength. Radical
criminology, therefore, must establish its legitimacy in this respect.
Chambliss specific proposals are directed at focussing away from individuals and
looking at the contradictory nature of the state. As a general watchword against the
functionalism of much radical theory this is fine, but it is left undeveloped. He adds
that [w]e cannot reasonably assume that there is a discoverable difference between
those who commit crime and those who do not (p 236). This, however, amounts
to dodging the difficult questions concerning what to do about various forms of
harmful social behaviour that occur now. If the contradictions of the state are to
Reviews 149

be the overriding concern of radical criminology, then all political praxis must be
directed to them. As Kelman and Rudovsky later affirm, this implicitly involves
political abstentionism in respect of, for example, violent street crime. A politically
effective left strategy on crime, therefore, must develop a more sophisticated
typology of preventable social harm. In particular, this might lead to examining the
issue of what an effective progressive policing policy might be. Socialists cannot
afford to duck these difficult questions without being condemned to irrelevancy.
This is, perhaps, the most glaring weakness of the book. Consistently, the savage
indictments of the status quo are followed, if at all, by the loosest and vaguest
proposals for change. Thus Rudovskys suggestion that the police do have a
legitimate role to play in enforcing societys equitable norms (p 245) is given no
supplementary specification. In Diane Polans essay, Toward a Theory of Law and
Patriarchy, it is suggested that since the whole structure of law is steeped in
patriarchal values and priorities, any arguments cast in legal terms, even terms of
equality, implicitly legitimate that oppressive structure. The question the reader is
then faced with is: whats the alternative?. Struggles by feminists over equal pay,
anti-discrimination, child-care and so on seem, on this analysis, to have achieved
nothing beyond buttressing male domination. As one reviewer has pointedly
remarked, this position implies that [t]he only assurance a political actress can
have is that she will be doing the wrong thing whatever she does (Levinson
1983:1476).
One of the most stimulating pieces in the book is by Morton Horwitz on
causation. As any student of tort or crime will know, the range of conflicting
metaphors judicially employed to identify a particular sequence of events as causally
linked would do credit to Shakespeare. Horwitz traces the philosophical roots of the
controversy in the latter part of the nineteenth century. Causation has, from the
time of Hume, always been a problem for empiricists. Limited to empirically
observable events, the scientist cannot see causes, only constant conjunctions of
events. This position, as Horwitz points out, was refined by John Stuart Mill and
then applied to legal doctrine by the treatise writer Nicholas St John Green. Mill,
in true empiricist style, suggested that one cannot separate one set of events as
causally relevant and then categorise the rest as superfluous: events do not arrange
themselves so neatly. This argument led directly to determinism. This, combined
with a positivist view of social science (namely, that the techniques of natural science
are essential for adequate explanation of the social world), and a push to transform
law into a science, led inevitably to the impossibility of identifying individual legal
responsibility. At the time, tort law was cast overwhelmingly in the individual
responsibility/fault mode and it was hardly surprising that Mills theories provoked
prodigious, collective resistance. By way of example, Horwitz cites one treatise
writer Francis Whartons horrified discovery of the practical communism which
this theory of the causal character of all antecedents promotes (p 205).
The response might seem somewhat exaggerated. Despite Mills ambivalent
attitude to socialism, he can hardly be seen as having been a harbinger of proletarian
emancipation. But his theories do radically undermine the notion that it is possible
to separate analytically proximate from remote causes of harm. Implicitly,
therefore, the obvious direction for tort law was one of collective responsibility for
harm. This was totally at odds with laissez-faire, as Wharton insisted. The
150 Australian Journal of Law and Society VoL 2 No. 1

important lessons which Horwitz draws from the episode is how the legal principle
of objective causation effectively operated to subvert any redistributive functions
that tort law might be seen to have. In so doing nineteenth century tort preserved
its purely private law character: its individualism was premised on the protection of
what was considered to be parties pre-existing rights rather than on a more general
public policy. It is unfortunate that this contribution is so short. It raises a number
of crucially important issues, in particular the continued breakdown of the
boundary between public and private law and the scientisation of judicial technique
in the nineteenth century. Of course one cannot blame Horwitz for narrowing his
focus to one aspect of the doctrinal and philosophical debate, but this again must
raise the question of the wisdom of the overall plan behind the collection which
required the jamming of so many small sardines into what is after all a fairly sizeable
tin.
This criticism, however, should not obscure the fact that there are some excellent
pieces here notwithstanding restraints of space. Richard Abels section on torts
combines a density of analysis with a number of valuable suggestions for a
progressive reform of civil liability. Tort law is seen to express all the significant
values which capitalism enshrines: commodification of every aspect of life;
differential standards of protection for different classes of victims; and systematic
encouragement of unsafety due to the pursuit of profit in a competitive market. In
other words tort proclaims that you are what you own, what you earn and what
you do (p 195). Unlike Kelman, above, Abel addresses seriously the economic
approach to tort and while emphasising that a truly socialist approach to tort would
involve massive relocation of risk (eg rotation of work) as well as ownership (eg
worker control), proposes a progressive interim strategy. Importantly, he avoids the
pitfalls faced by some left-inspired reforms which concede too much to the system
they are trying to transform, such as recent suggestions in New South Wales on the
proposed no-fault compensation scheme which urge retention of the regime of
common law rights almost on the basis of a socialist utilitarianism (the greatest
happiness of the greatest number of workers), happiness being computed in purely
financial terms (see Tubbs 1983). As Abel urges, support for comprehensive no-fault
compensation schemes is the right choice on grounds of both equity and political
tactics. The paramount criterion for a just compensation scheme should be equality
... [T]hose who suffer from tort, unavoidable accident, illness, and congenital
disability should be treated alike. Inequalities of wealth and income should not be
reproduced in the level of compensation, for this would maintain those inequalities
materially and reaffirm them symbolically (p 198).
Crucially, Abel is here linking a contemporary political strategy to the values that
would underpin a future socialist legality. In this respect his article is one of the
exceptions in this collection, since the role of law in a socialist society is a topic
dodged by most contributors. Yet, as Perry Anderson has urged in a recent
collection of lectures, socialist ideas can only become the common sense of the age
if people are given some concrete outline of what rights and obligations would
pertain in a socialist system:

No working class or popular bloc in a Western Society will ever make a leap
in the dark, at this point in history, let alone into the grey on grey of an
Reviews 151

Eastern society of the type that exists today. A socialism that remains
incognito will never be embraced by it (Anderson 1983:99).

Socialists, generally, have found it rather easy to propose outlines of restructured


patterns of production, but civil liberties have caused real problems: problems, it
should be added, that this volume does little to resolve. David Kairys, for instance,
in his essay on freedom of speech, does not deal with the question of what limits
(if any) might be placed on free speech in a socialist society. The dismal performance
of contemporary socialist societies in this respect underscores the urgency of this
topic. Without a third option explicitly spelt out, liberals are, unsurprisingly,
inclined to opt for the limited freedoms they now enjoy.
This issue is fitfully addressed by Mark Tushnet in his essay, Corporations and
Free Speech (pp 253-261). One of the more astounding events in the history of
corporation law in the US is the ease with which corporations were allowed by the
Supreme Court to avail themselves of the Fourteenth Amendment protections: that
is, during oral argument before the Court in the 1886 case of Santa Clara County
v Southern Pacific Railroad1 where justices interrupted one attorney with the curt
conclusion that corporations were persons. This, conjoined with the notion of the
free market of ideas, leads Tushnet to conclude: [i]f free speech was defended with
the metaphor of the market, it was only a matter of time and political circumstance
before the market was defended with the metaphor and the substance of free
speech (p 258). This point is very important, and it goes some way to explaining
the Supreme Courts reasoning in the later political campaign expenditure case of
Buckley v Valeo2. Again, lamentably, we are none the wiser about how corporate
speech might be regulated, and, importantly which corporate forms. As Tushnet
recognises, there is a world of difference between a college newspaper organised in
corporate form from a multinational oil corporation, yet the hard question about
where the line should be drawn is conpicupusly unaddressed.
Karl Klare in his contribution on labour law attempts to answer some of those
hard questions, in particular by resisting the all-too-common Marxist functionalism
which tends to classify every change within capitalist societies as yet another
manifestation of the inexorable logic of capital. Thus, he emphasises how labour
law in many respects represents an advance in working class conditions but that,
nonetheless, the forms of industrial due process become a substitute for
democratic self-governance (p 79), and, more generally, that collective bargaining
is not purely and simply a question of domination but more broadly involves
consideration of workers rights and democratic participation in the workplace. The
important point underpinning this argument is that the democratisation of industry
is essentially a two-fold process of exploiting the contradictions within existing
institutions while simultaneously developing forms of political organisation which
prefigure a socialist polity. The dismissal of the former as inherently statist and
therefore reactionary manifests a simplistic characterisation of the state as well as
an overly sanguine faith in the capacity of unalloyed popular action to restructure
and democratise the whole of social life (p 84).
There is, however, an ambivalence in Klares attitude to law. While he maintains
that to see the workplace as a locus of democratic self-governance may suggest
general terms in which to conceive law-making and institution-building as experiences
152 Australian Journal of Law and Society Vol. 2 No. 1

of human self-development and self-realisation, thus, presumably, recognising


the centrality of law in a socialist society, he nonetheless elsewhere slips back into
a simplistic chiliasm: law and the state, so his forecast goes, will ultimately wither
away (p 83). This is at odds with his (and others) rejection of instrumentalist
theories of the state and is indicative of a recurrent and pervasive tension
throughout the book. This tension derives from the critical legal scholars undue
reliance on the Realists whose enduring legacy (particularly in the US) has been
to emphasise the indeterminacy of legal rules. Judges, as the Realists see them,
are not restrained to come to a definite result in any case which comes before
them. On the contrary, the doctrine of precedent is so sieve-like that any judge
reluctant to come to a particular conclusion can invariably find a hole to wriggle
out of. Most of the articles adopt either implicitly or explicitly various shades
of this view. To this major realist premise, the critical legal scholars add a few
minor ones to the effect that judges customarily want to reach particular results
which accord with their political and social philosophies; that they use the
apparent objectivity of the method to confound the would-be cynical and
suspicious; and that their sympathies lie with those interests supportive of
advanced capitalism and patriarchy.
As well as sitting uneasily with a general critique of instrumentalism, this
approach equally appears to contradict the notion of the materiality of legal
doctrines. After all, Duncan Kennedys suggestion that legal education is a form
of preparation for the hierarchies which exist outside the law school, a form of
preparation which allows law students to internalise and accept the rationality
which underpins those hierarchies, contradicts the idea that judges are not
constrained by them. In other words the ideology of legalism has some material
effect or it does not. If effective, then it must operate to impose some restraints
on judicial decision-making and this, in turn, means that judges are not merely
consciously engaged in some peculiar political conspiracy. Rather, the law, though
flexible, does not give judges a carte blanche to do what they will. It follows
that Kennedys claim that law schools teach nonsense (p 47) is a hopelessly
inadequate analysis. It is precisely because legal doctrines do make some sort of
sense of, and thereby legitimate aspects of the legal process that they have the
purchase they do. This volume would have been the richer if this had been more
explicitly and pervasively acknowledged. It could have underpinned the notional
content of law in a more democratic and egalitarian society with a developed
concept of the form of law, namely, the sorts of legal institutions which would
genuinely embody socialist values. This much is alluded to in the most general
terms in the later essays on alternative approaches but with insufficient force to
override earlier inconsistencies.
Further, there is negligible effort directed to the critical analysis of contemporary
jurisprudential theory notwithstanding the obviously profound influence it has on
all forms of legal discourse. Where criticism is developed it is cast in the most
general terms at liberal legalism. Insofar as this implicitly identifies a unifying
philosophical core this approach has clear advantages but a reluctance to grapple
with the often contradictory elements of mainstream legal theory is very much to
ignore the books introductory promise to expose the august bones and sinew of
American Law. This text can, perhaps, be seen as a prolegomenon to that project.
Reviews 153

III
The Left and Rights: The Issues
The parameters of the debate addressed by Tom Campbell in his preface to The
Left and Rights are essentially threefold: first the dogmatism of linguistic
philosophy; second some common prejudices against the concept of socialist
rights; third, the constructive project of establishing a shared conceptual base for
fruitful dialogue between theorists of the political Left and Right. The text as a
whole can therefore been seen as an attempt at intellectual detente. A central theme
of the book is a rejection of the assertions of dogmatic linguistic philosophers
who, for Campbell have arrogated to themselves an absolute, correct definition
of rights at the expense of all others. Campbells strategy, however, is not to attack
the dogma of linguistic philosophy itself (which he is generally rather vague about)
but, rather, to examine a number of competing definitions and opt for one which
in form and content approximates to the character that rights would assume in a
socialist society. This section of his book will be examined in more detail below.
Campbells argument takes on two other adversaries as well, namely, the
revolutionary socialist and the right-wing liberal theorists. The latter are
characterised by their rejection of all legal rights informed by the principles of need
and redistribution on the ground that they are ultimately subversive of traditional
civil liberties. This position is addressed intermittently and insubstantially in the
text, for Campbells main concern is the family quarrel within socialism between
reformists and revolutionaries. Campbell sees the revolutionary socialist as
one for whom the whole notion of rights is incurably bourgeois ... Under
socialism all will work together spontaneously in a willing spirit of co-operation
unencumbered by restrictive regulations and the self-interested competitivism in
which the language of rights is rooted (p 5). Campbell locates himself within the
reformist socialist camp, which he sees as distinguished by an outlook that while
admitting the relative and inadequate nature of bourgeois rights, seek[s] to salvage
something of lasting value from the traditional concept of rights (p 3). It is to this
family quarrel within socialism that his primary attention is given. The
repudiation of the main elements of the revolutionary criticisms is the launching pad
for the first five chapters of the book and as this forms the basis for the elucidation
of the essential rights of a socialist society, it is worth spelling out in some detail.

Socialism and Rights


All talk of rights is flawed for Campbells revolutionary socialist for four
reasons, namely, in that it is intrinsically contaminated by the discourses of
moralism, legalism, coerciveness and individualism. Campbell disagrees on every
account. Firstly, he attacks the moralism of rights on the basis that the appeal to
moral rights is merely another way of invoking principles which are used to justify
rights. He concludes that [f]ew socialists could accept the notion of moral rights
if this saddles them with a theory of natural law (p 23) on the basis that such a
theoretical position seems incompatible with characteristic socialist accounts of the
emergence and function of moral rules in pre-socialist societies (id). Furthermore,
in his chapter on Socialism and Human Rights (pp 103-122) he refers to the
datedness of moral epistemology emphasising the intellectual primitivism
involved in dallying with obscure metaphysical entities whose existence or non
154 Australian Journal of Law and Society Voi 2 No. 1

existence is beyond the scope of empirical observation or rational criticism (p 105).


These remarks clearly indicate that Campbells feet are well immersed in the shifting
sands of empiricism, which, as Mensch recognises in The Politics of Law, involves
a rigid division between statements of fact (which may be proven or falsified) and
statements of value (which are in essence unprovable subjective expressions of
taste). Since all moral discourse falls into the latter category there can be no such
thing as true values (the position otherwise known as ethical non-cognitivism).
It follows that all natural law theories, presuming the existence of absolute,
transcendent values and by implication, of course, socialist values, have no objective
truth-value.
These assertions, however, are difficult to square with the arguments Campbell
uses to list the necessary substantive elements of socialist rights. For him, they derive
from the interests and concerns of individuals (p 99) and he lists them in the latter
chapters of the book. In essence they look very much like a minimum content of
natural law, particularly given that they are grounded in the discoverable capacities
of human beings and, more importantly, that any state not recognising them
forfeits the right to be obeyed. Indeed, this is precisely the way in which many
forms of natural law have been argued, from Harts minimum content of natural
law based on the truisms of human nature (Hart 1961:189-195) to Aquinas
deductions from the law of God. Additionally, it is hard to see how any socialist
analysis can avoid collapsing this distinction between fact and value, since an
intrinsic part of the scientific analysis of class societies is a critique wedded to some
projected form of radical praxis. This, in turn, necessarily involves identifying the
nature and role of ideology. As one theorist has put it:
one is only justified in characterising a set of beliefs P as ideological if both
(a) P is false, that is one possesses a superior explanation for the phenomena
in question; and (b) P is more or less contingently (conjuncturally) necessary,
that is one possesses an explanation of the falsity of the beliefs in question
(Bhaskar 1979:80-1).
Now this logically leads to another conclusion, namely, that to criticise a belief as
false is to criticise any action or practice informed or sustained by that belief, but
also anything that necessitates it (id).
There is a positive side to such critique : the programmatic aim of a struggling
for a polity based on an ethics of egalitarianism, democracy and need fulfilment.
In this sense a socialist ethics is not just an item of conceptual baggage which
supplements scientific analysis; rather, it is imbricated in and informs that very
analysis. So it involves a dissolution of the division so central to traditional
empiricism (and, of course, liberalism) between moral philosophy and
epistemology. As suggested, this much seems implicit in Campbells overall project,
and while he does acknowledge the socialist emphasis on the permanent
importance of the essentially creative nature of man has something of the flavour
of natural law theory (p 23), he somewhat contradictorily concludes that natural
law theory ... outside a theological context ... lacks the necessary philosophical
support (id).
The next hurdles are those of the individualism and coerciveness of rights. These
are among the most important chapters in the book for they thoroughly subvert the
Reviews 155

idea that the concept of rights is anything other than historically and socially
determined. Thus, he argues, the individualism of rights only makes sense in an
individualist culture, in particular, a capitalist society where individual autonomy
is paramount. The assumptions of traditional jurisprudence are undermined in that
a socialist society would not be constituted by a network of competing egoistically-
minded individual bearers of rights. Such a conception of rights derives, as
Campbell sees it, from two basically flawed theories, namely, contract and
power theories of rights. After rebutting these bourgeois approaches,
Campbell concludes convincingly that the proper target of the socialist onslaught
on individualism is not the institution of rights as such but the prior assumption that
human nature is irredeemably egoistic (p 101).
Much the same approach is directed against the notion that rights necessarily
involve coercion. Campbell here addresses himself to the arguments of two major
figures in the pantheon of twentieth century jurisprudes, Hans Kelsen and H.L.A.
Hart. His analysis of Kelsen is detailed and perceptive (pp 65-76) identifying,
crucially, Kelsens essentially Hobbesian project of insisting that law ought to be
obeyed if it is a valid law. Validity is in turn seen as a function of effectiveness;
and effectiveness is established if and only if a substantial section of the community
support it. This, of course, is to collapse the technical question (validity) into the
sociological question (effectiveness). Further, the result of this exercise is to assert
that we ought (in a moral sense) to obey a valid law, if others do. In other words
conformity becomes a moral imperative. Campbell subverts this form of reasoning
by separating the sociological question from the technical question concluding that,
sociologically, socialists maintain that a generally non-coercive society can emerge
which undermines the positivists claim in the analytical connection between law and
coercion.
Campbells rejection of Hart is much less persuasive. Quite apart from the
obvious objection that Campbell is operating with a rather utopian conception of
socialism here (as in many other parts of the text) he nonetheless misses the further
point that Harts minimum content of natural law is squarely contrary to
Campbells rights respecting the interests and concerns of human beings. Further
one would have expected Campbells socialist leanings to challenge Harts
characterisation of officialdom as bound together by a critical and reflective
attitude (Hart 1961:113). Clearly, an ethos committed to the implementation of
rules of any legal system (used as autonomous standards of behaviour) is quite
antithetical to the normative structure of a socialist society.
This point is particularly relevant to the final revolutionary critique of rights
that they are inherently legalistic. This critique is dismissed on the basis that legalism
does not merely mean that rule-following is an end in itself. For Campbell it remains
that rule-following may achieve other socially desirable ends therefore societal rules
(and therefore rights) can be socialistically proper. Thus the beneficial, instrumental
purposes to which rules can be put rescues them from the taint of mere
proceduralism. These benefits specifically are: organisational capacity, rules being
necessary to ensure that large-scale units operate effectively; redistribution, for rules
are seen to further this aim also; and, finally, social control. To counter the
objection about the obvious coerciveness of control Campbell insists that this
would not be coercion in the usual sense of the term but uncoercive mutual
156 Australian Journal of Law and Society Vol 2 No. 1

monitoring and control of interpersonal behaviour (p 47). This would be a feature


even in a community of brothers, he adds, and could not be achieved without
a corpus of societal rules (id).
This latter remark finishes off the revolutionary socialists case. But it
simultaneously raises a number of problems which infect the argument as a whole.
Firstly, one might ask how uncoercive mutual monitoring differs from coercion.
Coercion would not be there to restrain malicious selfishness, but to ensure that
human good is protected in ways which are not self-evident to the ordinary
benevolent individual (p 45). But, surely, the gist of Campbells critique of the
revolutionaries is that their image of socialism is utopian. However, his position
would seem to take utopianism one step further. Indeed, one of the major
difficulties with the text is the revolutionary/reformist dichotomy. Campbell is
generally rather vague about both. It is unclear, for example, to what extent
reformist socialist differs from the reformism which has characterised, say, post
war British Labourism. At times, for instance in the chapter on socialism and
human rights, he urges an updating of human rights, namely the addition of
some economic rights to the formal liberal freedoms. This has the ring of a distinctly
social democratic platform. Yet in his chapter on the right to work, he devotes space
to discussing rights to participate, control and rotate work, a reform considerably
in advance of, say, what most contemporary socialist societies attempt to do. The
difficulties derive from his failure to define with any real specificity what he means
by socialism. The reader is therefore left to glean a number of references scattered
throughout the text.
An attempt to make good this lacuna is contained in his chapters specifying the
content of socialist rights. These fall under three major headings: political rights,
the right to work and welfare rights. These substantive rights are all founded on
Campbells basic theory of rights which insists that they are directed towards the
protection and furtherance of those concerns which express the needs of active and
creatively productive human beings. The interests and concerns of individuals of
Chapter 7 on justificatory principles thus boil down to needs. Importantly, needs
are extended to political participation and therefore rights to free expression are at
the core of the socialist bundle of human rights, principally because they promote
the common good a la Rousseau. This represents an important distancing from
economistic Marxisms for it emphasises that transformation of the economic
infrastructure is, by itself, insufficient to constitute a socialist society. It is
unfortunate, though, that Campbell does not devote attention to recent discussions
of the relationship between Marxism and democracy3 to give an added dimension
to his argument.
The other two categories of rights are, naturally enough, the right to work and
welfare rights. In respect of the former, a genuine radicalism is shown in the call
for an end to the rigid division between mental and manual labour and management
and labour, something that many so-called socialist societies have been notably
unsuccessful in addressing. This section of the book is very positive and
constructive, attempting to add flesh to the barest bones of what socialism is usually
seen to amount to. Campbell, to his credit, despite wavering at times on what
socialism might be, nonetheless does in the end provide a tentative outline of some
of the contours which institutions in a socialist society might look like. In this sense
Reviews 157

he goes one further than most of the writers in The Politics of Law.
There are, however, some references in these latter chapters which might jar with
many socialists. Phrases like welfare rights directing the actions of those with
command over economic and human resources and officials will have role-based
rights to require others to act (p 80) and [t]he chief purpose of societal rules ...
will be within the normal administrative arrangement of whatever institutional
arrangements were thought necessary to organise communal life ... coupled with
a measure of large-scale co-ordination is required if modern productive systems are
to be adequate for human needs (id) evoke centralised planning and
bureaucratisation on a large scale. This, of course, is incompatible with a society
premised on the principle of maximum popular self-governance. Given that
Campbell refers in a very general way at many points in the text to democratic
socialism, a discussion of this issue would have enriched the general argument, as
well as indicating Campbells attentiveness to the problems of bureaucracy which
continue to plague contemporary socialist societies.

Dogmatic Linguistic Philosophy


As noted above, the dogmatic linguistic philosopher (p ix) is one of the
protagonists Campbell takes issue with. The reason for this is due to the fact that
the intellectual constraints imposed by inherited conceptual outlooks still present
major hindrances to progressive social theorising (id). This dovetails into his
attempt to join theorists of the Left and Right in fruitful dialogue. In order to
assess the value of this project, however, it is first necessary to examine firstly, what
Campbell means by dogmatic linguistic philosophy and, secondly, what form this
dialogue is likely to take.
Within linguistic philosophy there are essentially two major camps. The first,
most commonly associated with Bertrand Russell, has been termed alternative
language philosophy (Graham 1977). The second is ordinary language philosophy,
dominated by the figure of Ludwig Wittgenstein. Now Campbell does not
distinguish between the two though one would have expected that given the
orientation of the book some significant argument might have been focussed on this
question, especially since these camps still exercise considerable influence in
philosophical circles generally and jurisprudence in particular. Further, the epithet
dogmatic seems unjustified given such an omission. A style of theorising is hardly
undermined by iterative labelling. This oversight has significant consequences for
the books general discussion of rights. In the section of H.L.A. Hart, for example,
there is no reference whatever to the extent to which that work is paradigmatically
within the ordinary language philosophy tradition and how the dogmatism of
that tradition is specifically manifested: the standards which are used to determine
which language is ordinary are conspicuously discretionary. Given Campbells
innovative project, his argument might have been the more compelling had this
undercurrent been addressed.
Ordinary language philosophy begins to look increasingly deficient when
confronted with the facts of historical change. The epistemological primacy
attached to current ordinary usage seems particularly shaky when put in the
context of the day-to-day struggles for dominance of numbers of incompatible
meanings. Indeed, this is precisely the exercise that Tom Campbell himself is
158 Australian Journal of Law and Society Vol. 2 No. 1

engaged in. Reference to recent history provides another illuminating dimension to


a conceptual analysis of the idea of rights generally since it poses the question of
why so much political debate is currently cast in terms of rights. Arguably, this
particularly post-war phenonemon has been induced in part by two factors: first,
and most obviously, the emergence of philosophical humanism consequent on the
experience of Fascism and Stalinism (crystallised in, inter alia, the U.N. Declaration
on Human Rights); second, the redistributive functions of the welfare state have
given credence to a whole range of claims to rights previously unthinkable in legal
terms. This development has been strengthened by the fact that increasingly courts
are, in so many areas, moving away from the application of formal justice
(involving the application of broad and general rules) to substantive justice
(where the distributive outcome of decisions is prominent and notions of fairness
are considered). Contract and family law are clear examples of this trend.
Correctively, the increasingly managerial role of the state precipitates assertions by
groups that the state must recognise their interests: the states reaching more into
society engenders the increasing legalisation of what were previously purely
political, moral or economic issues. And thus Campbells book. In this sense it is
representative of the breakdown of the very concept of rights, a problem which the
overwhelmingly ahistorical tenor of linguistic philosophy is singularly deficient at
theorising. The reluctance to examine the main features of its dogmatism weakens
Campbells socialist analysis of the nature of law and rights in advanced capitalist
societies. This weakness is the more striking given Campbells claim that the great
strength of socialist analysis is its capacity to reveal the historical contingency of
laws, legal concepts and legal theory.

IV
Conclusion
The fruitful dialogue which Campbell wishes to initiate has been characterised
by one reviewer as an essay in political naivety (Eccleshall 1983). If by this term is
envisaged a sober dispassionate exchange which will eventuate in the forces of
conservatism being blinded by the light of progressive social theorising the charge
is justified. However, it seems clear that this is not what the author is getting at.
Rather, as his attack on the revolutionary socialist position makes clear, the gist
of his argument is that socialists have no good reason to see debate on the terrain
of jurisprudence as some form of theoretical revisionism. On the contrary, a
consistently abstentionist position (essentially the state of affairs until quite recently)
has given the stage to more conservative theorists. The book, therefore, does
provide cogent advice on this score, and to the extent that it addresses critically and
articulately many of the major traditional arguments in this area is a timely
intervention.
Indeed, both books are effective attempts to subject a range of different domains
of traditional legal scholarship to radical scrutiny. As such they directly and
emphatically refute Eugene Kamenkas recent suggestions that [a]ll Marxists have
remained intellectually reductionist (Kamenka 1983:53), that they deny that legal
history is simply social, or political or economic history (id 46) and that
sophisticated radical legal theory effectively ended with Renner and Pashukanis. On
the contrary, a whole gamut of Marxist and feminist approaches is in evidence here,
Reviews 159

many, though not all, displaying a keen awareness of the specifity of law. In particular,
concrete analyses of contract law, welfare rights and anti-discrimination legislation in
The Politics of Law are supplemented and enhanced by Campbells wide-ranging
discussion of jurisprudential debate in The Left and Rights. There is, however, one
uniting flaw, all-too-fitfully overcome: the reluctance to address the problem of
transition. To a large extent this derives from excessive and exclusive dependence
on the two polar co-ordinates of socialist theory: utopianism on the one hand and
scientific historical materialism on the other. For the former a soft focus on the
future has tended to displace the development of strategies based on the here and
now. For the latter, the expatiation of the particular laws of motion of present and
past societies in turn has tended to oust consideration of the precise forms of
possible socialist institutions. Both elements are captured in the well-worn (if not
thread-bare) promise that socialism will involve the replacement of the government
of men by the administration of things. But as a recent review in this journal
emphasised, socialism should be seen as a process beginning now rather than some
sort of deus ex machina magically appearing in the future, and that [o]ur politics
and analysis need to not only inform some general vision of the future but also be
constructed around and inform responses in the particular instance and reform in
the day-to-day sense (Hogg 1983:128). In this respect both books exhibit
significant shortcomings. Campbells regular reference to a non-coercive
community of brothers [sic] lacks any specification as to how we might get there.
The Politics of Law with its repeated and vituperative denunciation of what is
contains but a few allusions as to what might be, and how. A utopian discourse is
a prerequisite for transcending a narrow bureaucratic reformism but
[a] shift from the axis of values to that of institutions, in projections of a
socialist or communist future, has been much needed, and must bring with it
a new sense of practical complexities. But that shift does not in itself represent
a move out of the utopian space as such, so long as it is dissociated from any
plausible analysis of the historical processes capable of realising values or
institutions alike (Anderson 1983:104).
The critiques advanced in these books provide at least the crucial first step, and
constitute a valuable springboard for the project Anderson advocates. The next
necessary phase for critical legal scholarship is to develop those hinted-at practical
complexities. Whereof one would insinuate thereof one should speak.
Brendan Edgeworth

Endnotes
1. 118 U.S. 394 (1886).
2. 424 U.S. 1 (1976).
3. See, for example, Gramsci (1971) and Hunt (1980).

References
Anderson, Perry In the Tracks of Historical Materialism (1983) London, Verso.
Bhaskar, Roy The Possiblity of Naturalism (1979) Sussex, Harvester Press.
Eccleshall, Bob Book Review (1983) 35 Radical Philosophy 36.
Graham, Keith J.L. Austin: A Critique of Ordinary Language Philosophy (1977) Sussex, Harvester.
Gramsci, Antonio Prison Notebooks (trans. Quintin Hoare and Geoffrey Nowell-Smith) (1971) New
York, International.
160 Australian Journal of Law and Society Vol. 2 No. 1

Habermas, Jurgen Theory and Practice (1974) London, Heinemann.


Hart, H.L.A. The Concept of Law (1961) Oxford, Clarendon.
Hogg, Russell Book Review (1983) 1 (2) Aust J of L & Soc 122.
Hunt, Alan Marxism and Democracy (1980) Lawrence and Wishart, London.
Kamenka, Eugene, A Marxist Theory of Law? 1 Law in Context 46-72 (1983).
Kelman, Mark, Consumption Theory, Production Theory and Ideology in the Coase Theorem, (1979)
52 Southern California Law Review 669.
Levinson, Sanford, Escaping Liberalism: Easier Said than Done (1983) 96 Harvard Law Review 1466.
Shaw, George Bernard, The Intelligent Womans Guide to Socialism (1982) Harmondsworth, Penguin.
Tubbs, Michael, No Fault or No Rights (1983) 8 Legal Service Bulletin 209.