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Marxist Perspectives in the Sociology of Law Author(s): Steven Spitzer Source: Annual Review of Sociology, Vol. 9 (1983), pp.

103-124 Published by: Annual Reviews Stable URL: Accessed: 20/09/2010 05:43
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Ann.Rev. Sociol. 1983. 9:103-24 Inc. All rights reserved Copyright 1983 byAnnualReviews (


Steven Spitzer
02108 Boston,Massachusetts of Suffolk University, Department Sociology,

with develthe and associated the Thisreview considers problems prospects in of of perspectives thesociology law. Takingas itsstartopment Marxist a of to ingpointtheefforts construct Marxistunderstanding law through and a of the traditional approachof legal economism, number directions in of themes the development a new Marxistvisionof law are explored. in witha survey are Alternatives "legal nihilism" examined conjunction to concepofthemovement Marxist theory toward "looser"and "flatter" a of betweenlaw and society.The role of politics, tion of the relationship are in of legaltheory then and ideology, history thereconstruction Marxist and limits "imbricationto of withspecialattention thevirtues considered accounts.The analysisends witha reexamination ist" and "constitutive" and among Marxism,sociology, of the pointsof convergence divergence law, and socialism.


in of The last decade has witnessed explosion interest Marxistperspecan tives law. Just on (1971: 137)couldobserve overtenyears ago,ElliotCurrie in with confidence there that were"very Marxiananalyses theacademic few have by no means sociologyof law." Today, althoughMarxistinsights of our revolutionized understanding law, the sociologicalquestionsthat theyhave raised are no longer,as Currie charged,"unasked." To the of in Marxisttheory generaland Marxistinterpretations law in contrary, have becomemorecentralto the sociologicalenterprise. particular and A number explanations may be advanced forthis noteworthy of there Mostgenerally, was whatHunt(1981: 49) has rapid surprisingly shift. 0360-0572/83/0815-0103$02.00 103



called "deeply 'crisis' enveloped andlegalinstitutions a felt that law from theendofthe1960s" Western in and Europe theUnited States. Thiscrisis wasassociated a number developments breathed into with of that life Marxistapproaches thelaw:(a) theexhaustion,nottotal to if of collapse, the "normative integration" in paradigm sociology (Abel1980; Hunt1981) and thedecayof "liberal within legalism" legalthought jurisprudence and (Unger 1975,1976;Klare1979);(b) the"opening (Sumner out" 1981)of theoretical perspectiveslawandother on "superstructural" elements within European Marxism Althusser (see 1971;Williams 1973;Thompson 1975; Cohen1978;Hall etal 1978; Poulantzas 1978);(c) thegrowing interest in political economic and dimensions law generated theemergence of by of "radical criminology" (Taylor al 1973; et Quinney 1974; Greenberg 1980a; see Sparks 1980for critical a and review) "radical legalpractice" (Black 1971;Lefcourt 1971);(d) thebroadening interest therelationship of in between and socialchange law the through study punishment its of and historical transformation 1975;Spitzer (Hay 1975,1979;Foucault1977; Ignatieff 1978,1981;Lea 1979);and finally therediscovery the (e) in English-speaking oftwo"classical" world Marxist interpretations oflaw: thework theAustrian of Marxist Renner Karl (1949)(for see commentary Kahn-Freund 1949;McManus1978;Hirst1979;Kinsey1979)and the work Evgeny of Pashukanis see (1978, 1980) (forcommentary Balbus 1977:fn. Kinsey 5; 1978;Sumner 1979:Ch. 8; Hirst 1979:App.I; Binns 1980; Mullin 1980;GreenbergAnderson & 1981;Beirne Quinney & 1982). Takentogether, developments us to identify major these help the stress in points theMarxist of theory law and to interpret directions the its development followed. has Someof thefactors outlined aboveare the product political of struggles, others tiedto cultural intellectual are and and debates, stillothers theresult thepervasive are of discontent with modern forms lawinall itsguises. assess shape substance of To the and of this ferment it accuratelywillbe helpful lookmore to carefully both at the deconstruction reconstruction and ofMarxist perspectiveslawthat on have taken placeoverthelastdecade.

The Problem
Although recent collections (Cain& Hunt1979;Phillips 1980)havedone muchto dispelthemyth thatMarxand Engelswereoblivious legal to issues, is stillfair observe they it to that never identified as a major law theoretical problem & (Campbell Wiles 1980: In theabsence an x). of treatmentlawintheir adequate of the original writings, Marxist conception oflawthat emerged the20th first in reflected weltanschauung century the of"orthodox" Marxism (Gouldner 1980;Jacoby 1981).Embracing what Hirst (1979)hascalled"essentialism," accounts these were wedded the to



"view that socialphenomena be reduced derived all can or from ecothe nomic" (Sugarman 1981:81).It is this tendency trace legalphenomto all ena backto economic forces structures has created greatest and that the obstacle thedevelopmenta Marxist to of of sociology law. Thepurest form legaleconomism embodied theidentification of is in of proponent thisposition Pashukanis of was (1978:61) whoreasoned that "thewithering ofthecategories bourgeois will... meanthe away of law withering of law altogether." away Basinghis theory law on Marx's of analysis commodity of exchange, Pashukanis consistently argued there that wasan homology between logicofthecommodity andthelogic the form ofthelegalform & (Beirne Quinney 1982:21). Whilethisinsight proven has in valuable demystifying law as an the ideological form capitalist in it societies, has also created cul-de-sac a for Marxist attempts come grips law.To theextent lawcanonly to to with that be understood a negative as force form and peculiar bourgeois to society, itsexplanation begins with critique capitalism endswithits the of and If eclipse. this view taken is then seriously, as Marxism achieves objecits tives theory lawself-destructs: as a specific the of "Laws of object analysis disappear" (Hirst When istied this it 1979:163). to logic Marxism not does so muchoffer theory law as a "theory a of against law" (Santos1979; Cotterrell Insofar Marxism forced throw legal"baby" 1981a). as is to the outwith capitalist the "bathwater," systematic any consideration law ofthe is stymied before starts. it The mechanical equation Law and Capitalism "legalnihilism" of by (Sharlet 1978; Hunt1981: hasproven embarrassment a frustra35) an and tionforthosewhohavesought advance to Marxist theories law: an of embarrassment because theunmistakable persistent of and presence the of legalform, legalideologies, repressive in "socialist" other and law and noncapitalist societies; frustration a because Law is disentangled as from the Capitalism, entire edifice Marxist of theory threatens collapse. to A number strategies beenpursued Marxists of have by since Pashukanis inaneffortovercome shortcomings to the ofeconomism without sacrificing thebasicstructure Marxian of theory. problem The these strategies is face how exactly todisentangle from Law Capitalism fashionmore and a sophisticated, and flexible, empirically defensible ofthe understanding nexus between two. the Before these examining strategies greater in detail willbe it useful outline context to the within which haveemerged. they As early 1906an alternative theemphasis legalform Marxist as to on in legaltheory became apparent thework Karl Renner in of (1949).Renner
Law as a social form withCapitalism an economicsystem. as The earliest

Functional and the "Loosening Analysis Project"



located roots capitalist inbourgeois the of law property relations, unlike but Pashukanis was "principally he concerned theendsto which is with law the of rather with form lawitself' than 1979:52).ForRenner (Kinsey put, lawisa "neutral framework oflegality the oflaw,upon or rule which would of evolvethe social functions a 'SocialistCommonwealth"' (Kinsey 1979:53).Andsince canserve law different under ends different economic regimes,ispossible only envisionsocialist butalsotoseehow it not to a law law can become political wellas an economic a as tool.The connection between andeconomy thus law is preserved thefunctional but relationship in the between twois "loosened" an important respect. Themost obvious problem this with "solution," however, that fails is it tospecify connection the between form content. a number and As of legal commentators noted(Klare 1979:135;Kinsey1979:52;Beirne have & 1982: law cannot treated an "empty be as frame" which Quinney 6), into newcontent poured is without forcing to introduce us other factors (e.g. how its In power, mystification,toexplain thelawaccomplishes ends. etc) thissense, and Renner's loosening theelasticity (McManus1978)it proone other vides presage "instrumentalism"Miliband (see 1977), ofthe types in ofreductionism identifiedrevisionist debates. Whenapproached from standpoint the"needs"ofan economic the of of the system, essence theloosening project (Greenberg 1976)is thedenial The of thus ofthefunctional necessity law forthatsystem. question bean Is to of ties comes: itpossible provide explanationlawthat ittoeconomic the of without and organization reproducing circularity teleology functionalism? (See A. Horwitz 1977;Spitzer 1977.) One ofthemost Marxist straightforward ofdistinguishing ways theory from traditional is to the functionalism emphasize fact that theformer for elements a classsystem always are of as wellas functional. dysfunctional in the mechanism socialchange classsociety of Morespecifically, central is, according Marxist to theory, dialectical a process through which the relations production of inevitably into come conflict (aredysfunctional with the forces production. of as for) developing Thus,for example, capitalism we that functional feudalunder develops should expect legal arrangements ism(e.g.theElizabethan Laws)would Poor become for dysfunctionaland with havetobe replaced lawscompatible theemerging by capitalist order of [e.g.thePoor Law Reform 1834(see Polanyi1957:Ch. 6; Piven& we Cloward1971)].Taking thisa stepfurther, shouldalso expect that "forms principles socialist and of within legality developing [are] capitalist societies" 1981: (Sumner 88). to When systematically of encourapplied theanalysis lawthese insights at at the ageus to viewlawas always leastsomewhat oddswith modeof in But of functions productionwhich isfound. while inventorythe it an and



dysfunctionsvarious of lawsforanymodeofproduction establishes the contradictory character law(Chambliss of 1979;Grau1982), question the ofwhythese contradictions or howand when exist they likely be are to "resolved" remains unanswered. Moreover, lawcanalways saidto since be be aheadof,behind, parallel or with given a economic order, haveno we wayofestablishing precise the functional significanceanygiven of law.

Ofthemany "isms"identified thedebate in overtherevision Marxist of "structuralism" "culturalism" twoofthemost theory, and are important. around work LouisAlthusser France E. P. ThompCentering the of in and son in Britain, these respectively, twotendencies in many have respects defined terms limits therecent the and of investigation theroleoflaw into inMarxist theory. as Beginning efforts refine to traditional conceptions of the base-superstructure metaphor, haveinvery they different tried to ways respond thechallenge economism theMarxist to of in perspective law. on The recurring facing issue bothofthese tendencies "schools" or (Laclau 1977: 2; Redhead Ch. 1982: 330)is,as I argue howto redefine below, the relationship between external structures, humansubjects, the law and (Hirst1980). A major in point departure the"structuralist" of is concept approach the ofthe"relative of law.As a touchstone many autonomy" the for revisionist accounts (Balbus1977; Edelman it an 1979), offers approach rethinking to thelaw/economy nexusin structuralist terms. Louis Althusser (1970: 99-100) suggests the that law,along with philosophy, aesthetic production, scientific and formations, other"superstructural" have their elements, "ownhistory" exist "relatively and as autonomous hencerelatively and independent" features the"whole." of Law is thusconceived indepenas dent theeconomic of but system alsodependent some in sense. This"some sense"is therubsince movement structure all superstructural the and of elements (including areultimately backtothe law) traced economic system. Balibar (1970:306),Althusser's collaborator, illustrates logicin his this that argument theinterventions State, andpolitical ofthe law, such power, as those that in occurred thetransition feudalism capitalism from to (e.g. factory legislation theenclosure in England), and acts "transform fix and the limits the of mode production." hemeans this that least of What at by is in transitional "theforms law and of Statepolicy not,as periods of are hitherto, to adapted theeconomic structure butdislocated respect ... with toit"(Balibar 1970:306-7). Thuslawis somehow "broken loose"todo its work. this But dirty dislocation notblock path does the between economy andlaw,itonly serves make to that pathmore and In tangled circuitous.

Deconstructing Marxism:Structuralism, Culturalism, and the "Flattening Project"



thefinal the analysis, pathleadsbackto a version thevery of economism that theory ostensibly the is to designed overcome. knee-jerk The relationship between andthe law economy abandoned is (Beirne Quinney & 1982: 13),but is still law accounted inthe for "last instance" pulls the by on visible orhidden economic strings. Why then structuralism taken seriously a wayoutofthe has been so as theoretical the of impasse facing Marxist analysis law?Oneanswer be may in found extensions refinements structuralist and ofthe position Nicos by Poulantzas (1973,1978). Poulantzas breaks the with Althusserian portrayal oflaw in an important he respect. Specifically, observes (1982:190)that or them people compelling forbidding to act."Thuslawis notsimply, by as Althusser have an "ideological apparatus." also state (1971)would it, "It and certain rights thedominated real of organizes sanctions classes (even of in though, course, these are rights invested thedominant ideology and arefar from inpractice their to corresponding juridical form)" (Poulantzas 1982:190).Eventhough Poulantzas quick addthat rights is to the granted are in an important illusory, has at leastopened doorto a sense he the broader oflawas a partly view and as positive active creative) wellas (i.e. in factor the"political-social (cf.Edelman field" partly negative 1979). Theemphasis law'sactive, on and shaping, embedded, "lived" character inthework Poulantzas to someextent that Antonio of and in of Gramsci has structuralism beyond (seeHalletal 1978; Sugarman move 1981) helped a unidimensional of have conception law. Recentcommentators drawn attention these to and "functions" tied them theemergence what to of has been called "constitutive oflaw."According Klare(1979:128, the to theory 132),thistheory law shifts emphasis of the from as an abstract law and structurethe to notion law-makingpraxis: view law of as the objectified that represents form expressive "a of socialpractice which community in the in the participatesshaping moral, and text allocative, adjudicatory ofsocial life." constitutive thus The theory demands of "recognitiontheroleplayed even in byallsocial individuals groups, the and actors, including oppressed constitution thelegalorder" of to (Fraser1978:148).In opposition the lockstep legal of nihilism the and system of imperativesclassical structuralthis seeks "bring (andwomen) to men backin"(cf.Homans ism, approach to and driven 1964) theexplanatory system toredefine as history a process byhuman subjects (Thompson 1978:79). Thisperspectiveechoed, is albeit from vantage the of point "culturalwhose ism," E. P. Thompson. by is Thompson, position described several by observers "imbricationist" as & (Sugarman 1981;Beirne Quinney 1982), assumes lawis "deeply imbricated within very that the basisofproductive relations" Lawis,moreover, within with(Thompson 1975:261). both and
"Law does not only deceiveand conceal ... nor does it merely repress



out; there "invisible" wellas "visible"structures law (Thompson are as of 1975:261). From the point of view of some structuralists, Thompson's position one of"cultural is reductionism" (Merritt 1980:210). ButThompson is notsimply suggesting theeconomicinfrastructure that is "absorbed" bythesuperstructure legal,political, of or ideological, cultural practice; he is arguing thatthevery distinction between infrastructure superstrucand tureis flawed. For Thompsonlaw does not simply influence material the basis of society, becomespartof thatbasis. The impulseto treatlaw in it thisway is partof whatmaybe described the "flattening as project":the denialof thetopographic of metaphor base and superstructure Marxist in theory. Conventional Marxism proceeded theassumption has on thatthearchitecturalmetaphor can and should be rehabilitated-as,forexample,in Cohen's(1978:231) suggestion the"roof' (superstructure)notonly that is supported the "struts"(infrastructure) also rendersthem more by but stable.But theflattening project involves movement a thissort away from oftheorizing bothstructuralism culturalism. for and Whatever their continuingdifferences, schoolsseemto be moving both towardan obliteration of thedistinction between "upper"reachesofconsciousness, the reliculture, gion,art,politics, law and the "lower"economicprocesses and and structures. Once itis redefined flattened thisway,thetheory law can begin and in of to taketheinterpenetrationthelegaland extra-legal of worldsseriously. It becomespossible, instance, ask questions for to aboutthelaw-making process in socialistas well as capitalist societies(Fraser 1978; Kinsey 1978). What remainscrucialto this task,however, the abilityto distinguish is expressive fromrepressive and to demonstrate law how particular social arrangements proveconsistent inconsistent or witheach. If law is social practice, thenhowdo we decidewhether practice expressive, that is repressive,or both?Moreover, since the theoretical centerof gravity shifted is from reified the economic system theflesh to and blood peoplewho create and live it,a new problem arises:How can we understand natureand the significance law as a social institution well as a social practice? of as Law is neversimplypraxis. No matterhow fluid,spontaneous, and a revolutionary societyis, it mustcreateinstitutions at some point that guideand define limits socialpractice. a series crystallized the of As of social practices within law history, becomesa condition wellas a form social as of practice, framework a within whichlaw-making itself takesplace. Law is thusalwaysstructure well as practice, onlybecause laws inevitably as if outlivetheir makers. Bydowngrading structural, the side constraining oflaw the"imbricationists" have createdanotherproblem: have dissipatedthe structural They



tension thevery at heart Marxist of of conceptions socialchange. For Marxism movementclasssocieties the of through is historypremised the on tension between forces relations production. law is "reconthe and of If stituted" (Fraser does 1978:150), itsstatus from static a relation change of production a dynamic to productive force? saythat is expressive To law under socialism repressive capitalism and under solves problem. the hardly An agenda nota theory. is Thusthe flattening project only not demands Marxism that reconceptualize thesystem rest, also entails rethinkingthesystem motion. at it a of in If law is embedded thevery in foundations classsocieties question of the becomes: canlawboth How support inhibit transformation and the ofsuch societies? we to understand as botha force Are law and a relation of production, precise its status being determinedeachempirical in instance; oris itbetter distinguish to different orlevels law?In either kinds of case, thereconstruction ofMarxist legaltheories requires we takea closer that look at therelationship between legaland other "noneconomic" social forms.

The deconstruction ofMarxist legaltheory opened an important has up breathing spacefor those whoare pursuing emancipatory conceptions of law and society. thoseinterested its reconstruction greatest For in the amount attention been focused the significance politics, of has on of ideology, history. and

Law and Politics

Oncelegal has theory been freed the from stranglehold ofcrude economism. it is hardly surprising thelinks that between and politics law become far more salient. Modern isalways some law in sense creation thestate a of just as thestate in some is sense creation modern (P. Beirne, a of law personal The between institutionalization the communication). connections ofpower andthepractice structureslawarethus tooimportantignore. and of far to the between and the stateraisesserious Nevertheless, relationship law for vision law (Miliband questions anyMarxist of 1977). Themajor with difficulty associated theintroductionpolitics the of into Marxist consideration law grows of thefactthatMarxism illof out is it to equipped treat as an independent relevant and variable. Politics has been in typically submerged classical Marxist discussions lawbecause of of to thetendency focus the"private" on functions lawandto of (economic)



1977:438-39). (Steinert problem law "public" as a "second-order" treat treated an as it law public is addressed, is usually caseswhere Butinthose there class.In consequence, ruling and of extension thestate thewillofthe muchless publiclaw and statepolicy, to incentive distinguish is little (Grau 1982).Neither to in law approach as a factor opposition thestate into dissolved are when they either seriously nor politics lawcanbe taken class the with willofthedominant or (economism) equated theeconomy (instrumentalism). its also form weakens of analysis thestateas an historical Marxism's comhas Marxist theory traditionally is force. explanatory Thereason that in in modeofproduction history which "as capitalism thefirst prehended is producer out is the whereby surplus pumped of thedirect themeans In 1974:403). (Anderson in wagecontract" economic form-the 'purely' operate of modes exploitation previous "all to contrast capitalism, other legal religious, or pocustomary, sanctions-kin, extra-economic through the SinceMarx (1970a:689) emphasized 1974:403). litical"(Anderson of was control basedon the"dull compulsion capitalist waysin which elethe thatwhile superstructural it relations," maybe argued economic part become ofthe"constitulaw, religion, andthestate of ments kinship, they remain modes of production, of tive structure" precapitalist life. of and to "marginal" theorganization regulation capitalist Thus,at law to that the leasttraditionally, samereasoning leadsMarxists treat as serious from and state removes politics the under epiphenomenal capitalism to itself a critique limits as And consideration. insofar Marxism theoretical a as fails the problem" toemerge either theoretical ofcapitalism, "political issue. or practical as capitalism ifpolitics to prefers approach theory At itscoreMarxist The of preconditionitsexistence. rather an internal than an were external when recognize we however, suspect, becomes this behind reasoning logic "glue," capitalism's of Anderson speaks, the that "wagecontract" which ofcapitalism-private definition In the a construct.fact, classic isitselflegal legal two contains important of of ownership themeans production-itself are 1982:10).There many (Tushnet and "private" "ownership" concepts: where as analysis, Cohen(1978:216-30)hasrevealed, in instances Marx's And terms. political) in structurelegal(andtherefore economic hedefined to compelled sepamayfeel (1978:224-5), like while somepurists, Cohen "chaff" from legal relations) the (e.g. "wheat" production rate economic the ofthe interpenetration twoillusthe relations), consistent ( in dimension thereconstruction ofthe the trates significance legal/political effort. legaltheory Marxist within of in Two directions therecasting politics as characterized (a) Law against be They promising. may roughly appear with Beginning E. P. ThompCapital. against and theState, (b) theState



son's contributions theensuing and "rule of law" debate(Fine et al 1979; Sumner1981;Redhead 1982),a number commentators of Marxism within have begunto suggest onlythatLaw and Stateare empirically not distinstandin opposition. Thisopposition but guishable, also thatthey frequently is typically rootedin thecontradictions legal development of within class in societies. Sincethecapitalist statemustcontinually legitmate itself terms of the values of individual rights, equality, freedom, justice,it must and of and practices(Law) thatactually developa system rules,procedures, servesthesevalues,at least some of the time.By juxtaposing"arbitrary power"and "theruleoflaw" itmaybe arguedthatlaw can operate against the stateas well as in its service(see Thompson1975). The notion Law against Statecaptures contradictory of the the reality of The capitalist arrangements. nub oftheproblem Marxist for comes theory in specifying conditions underwhichthe rule of law and the "rights" the it provides in facta barrier power,an extension power,or both. are to of The theory mustnotonlyspecify waysin which"rights" the suchas habeas corpus, trialbyjury,and theright organize unions(Thompson1979)are to situatedwithinhistory (Picciotto 1979), but also address the interplay between and on abstract rights principles theone handand concrete proceon duresand practices the other.In thisendeavorthe lines betweenthe blurred publicand private spheres, although frequently (Unger1975,1976; Fraser1978;Klare 1979),must distinguished clearly possible. be as as Thus thefreedoms granted againsttheStatethatThompsonand other imbricationists the exploreare notat all thesame as thosegranted through State of and kinds [e.g.freedom contract property Neumann1957)].Certain (see of individual rights help the Stateto growwhileothershold it in check. Yet to talkof "granting" thesefreedoms rights ofcourse, miss and is, to Becausehe and other law partofThompson's point. imbricationists present as an ''arena forstruggle" rather than as eithera reflection economic of or imperatives a benefaction the state,thereis a strongemphasison of In rather "winning" thangranting rights. fact,the rule-of-law analysisis in of largely defined terms the possibility desirability reconceiving and of law as a productof class struggle-the"missinglink" in orthodoxand accounts (Sumner 1981; Grau 1982; Redhead 1982). Hall structuralist (1980: 10) summarizes position the well:"We are arguing thatthecivil ... makeoursociety rights freedoms and which whatitis arerights which were and in defined won in struggle interests society, not againstthe dominant on bestowed society theory." by A secondconsideration politics of within focuses on Marxist legaltheory how the state sometimes operatesagainstratherthan in the serviceof of a traditional Marxistconcepts thestate, number Capital.In challenging of observers have drawnattention two important neglected to but facts:



(a) The "capitalist state"mayuse law as a meansof "disciplining" specific capitalsin the interest capitalism a whole,and (b) powergroupsin of as capitalist societies mayuse thestateand itslawsagainst interests both the of specific capitalsand capitalism general. in In the first case specific laws (i.e. antitrust legislation, certaintypesof administrative environmental products-liability etc) become law, law, law, a brakeon renegade capitalists a coordinating, and organizing, regulatand ing factorin the interest capitalism.One variantof this positionis of developedby the "capital logic school" (Jessop1980:340). Emphasizing thefunctions mustbe performed maintain capitalist that to the system as a whole(e.g. securing socialorder, providing necessary infrastructure, guaranteeinginternal and external markets, reproducing labor power,longrangeplanning, investment humancapital),thisschoolarguesthat and in "sincethestateand state intervention developed exactly becausethesetasks could notbe performed profitably singlecapitals(otherwise by theywould have)and sincethestatehas to stepoutofthecompetition between capitalists to fulfill those tasks it must (and does) have a certainamount of independence from capitaland its factions" (Steinert 1977:439). This independence explainshow and why the law can work against "particular capitals"(e.g. "profiteers," "unethical"manufacturers, unionbreaking companies, corporate polluters, yetremainloyal to "capital etc) in general."But becausethe "logic of capital" forces stateto pay for the itsindependence serving by another deepersetof"system and needs,"these theories never releasethestatefrom really capitalism's do grasp.Whatthey provide a morecomplex is analysis thearticulations of amongtheeconomy, and the law. politics, The secondway of interpreting role of thestatevis-a-vis the capitalism is basedon therecognition in somecircumstances powerofthestate that the maybe harnessed groupsthatlie beyondthe immediate by boundaries of capitalism's "interests" "needs."Two possibilities relevant and are here:the seizureof powerfrom "above" and from"below." On the one hand,it is clearthatcapitalism takena number "exceptional" has of forms (e.g. fascism)wherein powerofthestatewas "captured"and used to diminish the ifnot destroy ability thecapitalist the of class to administer economy the and "make"thelaw (see Neumann1944;Kirchheimer 1969;Gramsci1971; Hall et al 1978). On theotherhand,thereis the obligation explorethe to seizureof poweras partof theprocessthrough whichcapitalism transis formed intosocialism-keeping alive thepossibility history always that is made,at leastin part,bymenand womenand thatneither nor Capitalism theStateis an eternal social form. Marxismis to be takenseriously If as an analysis capitalism socialism, mustaddressbothofthesequesof and it tionsas partof any investigation politicsand the law. into



Law and Ideology

ofthe between ideology to investigation relationship obstacle the Themajor as the Marxist habit defining former of beenthelong-standing andlawhas If thelatter "repression." ideology by as and is, "falseconsciousness" class of over eyes theworking by the a no than veilpulled definition,more to its is pointin studying connection the thenthere little its masters, or its or apparatus assessing rolein promoting inhibiting political/legal with of and its socialchange. beginning ending considerationideology By classare in every epochtheruling "theideasof theruling theepigram to the Marxism restricts roleofideology 64), ideas"(Marx1970b: classical rule. trick" Kinsey capitalists ofa "confidence 1978)bywhich (cf. that in of 1975; on (Lichtman work thetheory ideology Marxism Butrecent a 1979)has stimulatedreexamina1978;Hirst1979;andSumner Kellner Marxist Sevtheory. and tion ideology's of meaning, function, rolewithin of in are to position ideology Marxist of process relevant the eral aspects this must of is recognition ideology that The theory. most general these the legal in As Hauser(cited Muraskin be distinguished propaganda. Arnold from most distinguishes a propagandissharply "what 566)hassuggested, 1976: offacts ... that is and ticfrom ideological an presentation interpretation conscious of is falsification manipulation truth always and [theformer's] essence on other is deception-in hand, mere andintentional. Ideology, the is Insofar ideology embedas simply self-deception-never liesanddeceit." it of the and dedinthe consciousnessboth deceivers deceived, cannolonger Fromthisperspective, ruling the with be confused direct manipulation. be out air. it creates ideology ofthin Rather, must collected legal classnever half-truths, the pool" within sea of beliefs, from kindof "ideological a and of making theculture consciousness any up and cliches, assumptions that poolis fed theeveryday experiences, by And society. totheextent this of society, the and aspirations, frustrationsall classeswithin traditions, and becomeinteresting law, among ideology, and politics relationships complex. turned upside the that is reality Freed from assumption ideology simply obscura ruling class, as 1975), a scheming by (Lichtman down, ina camera of become central thereconstruction to of investigationslegalideology be as Not itself defined an imMarxist legaltheory. onlycan ideology but ideological of above), the bricated (seethe force discussion "flattening," to careful of scrutiny. ,sources implicationslawcanalsobesubject more and in law regard: as of been Two dimensions lawhaverecently explored this and magic as doctrine. in to of resides itsability Partofthesignificancelaw in classsocieties of that as social To extent Lawas a way reasoning,doctrine, mystify life. the in esoteric is grand andas practice couched "professional language, secrecy,



of structured the ceremony, special clothing, carefully courtrooms, rituals legislation theoccupational and of 1979 status thejudge"(Sumner :-275), in rituals suchas the that andto theextent itis embedded commonplace it and a reified pledge allegiance,becomes of something special mysterious: socialform (Gabel 1980). in As an ingredient theglueusedin theattempt putthehumptyto it the after has of back dumpty culture together capitalism pushed off wall, set The Law (likeScience) performs important ofideological an functions. in reified of character Law as both practice (reflecteditsritual, ceremonial, in andtotemic and most character) consciousness (reflected generally brothe of mides "all menareequalbefore law" and "a governmentlaws like in notmen")provides important an of ingredientthefoundation classrule In -an ingredient taken seriously the often as as ruled. this by rulers bythe respect is theopium both masses theruling of the Law and class.Thefact in that ruling the classhasa more and interest strategic position a greater in the ofthis manufacture opium them (Sumner 1979:270) noway exempts from itsaddictive all effects. Theideological functionslegaldoctrine of within societies have capitalist in of beendemonstrated a number ways.Partof thecritique concerns inboth and of liberal conservative accounts thepatterning of shortcomings legal The decisions discourse. main and targets have here been formallegal ism(Kennedy 1973;M. Horwitz 1977: Ch. 8) and liberal legalism (Kennedy1976;Unger1976; Klare 1979) as efforts construct to coherent accounts the of nature law.Thus, example, formalof legitimating for legal ismcanbe interpreteda specific as legitimating ideology corresponding to a particular incapitalist As stage "an development. suchitformed intellectualsystem which law gavecommon rulestheappearance being of selfandinexorable, which, making contained, apolitical, and by 'legal reasoning like seem mathematics,' 'an about conveyed air... of... inevitability' legal decisions" Horwitz 1977: (M. 254). Legalinterpretation primary is the process self-legitimation of forthe legal profession. itis"decoded" When in (Klare1981) this way, ideologthe icalfunctionsdoctrine both of are revealed rendered effective. and less The here texts an assumption isthat legal provide important ofthe part ideology oflaw-an ideology helps that legitimate mediate and repression through a "logic obfuscation" of The taskofcritical (Kennedy 1979:220). inquiry isthus "uncover constellationassumptions, andsensibilities to the of values aboutlaw, politics justicethesetexts and to evince, revealtheir latent Atanother specific oflawandtheir level types interpretation areanalyzed as they contributethe to ideological ofcapitalism. this In reproduction body ofwork, ideological the features particular of types lawsaredelineated of and tieddirectly thefactthatcapitalist in spiteof its claims to law, to
. and structures thought . ." (Klare 1981:451). of patterns



and contradictions grim the mustalwaysreflect underlying transcendence, becomesa prism life.Thus the law, in spiteof itself, capitalist of realities of features capitaland divisive, exploitative whichthealienating, through refracted. ism are to are of of Manyexamples thistype analysis beginning appearin Ameriof The dimensions law publications. ideological lawjournalsand other can as (Kennedy1976)and public in explored areasas diverse private havebeen (Gabel 1977; Gabel & Feinman (Tushnet1979) law, thelaw of contracts law 1982), torts(Abel 1981), constitutional (Tushnet 1981), labor law law (Klare 1978,1981,1982;Stone1981),criminal (Kelman 1982),and law (Freeman 1978, 1982), healthcare (Rosenblatt relating race relations to (Olsen 1983),and genderroles (Rafter& Stanko 1982; 1981),the family 1982). Polan 1982; Taub & Schneider the a of In mostcases,inquiries thissortseek to establish linkbetween imperaand specific of in reflected the evolution doctrine legal principles In A maybe considered: discussing society. fewexamples tivesofcapitalist in cases,MortonHorinjury of the"assumption risk"doctrine workmen's of witz (1977:210) arguesthat it expressed"the triumph contractarian legalcreation nineteenth century thananyother morecompletely ideology of thatthe thoseforms inequality ... the law had come simply ratify to of produced."Lookingat the ideologicalsignificance the system market that (198 Cotterrell lb: 63) suggests theidea of"equivalence" legalcontract, of the in embodied thisgenre law "promotes breakdown and "universality" unconnected withtheneedsofan economy ofall majorstatusdifferentials of form and the and exchanges confirms defines particular basedon market are social relations conceptualin of individualism terms whichcapitalist that of tort ized." In a critique American law,Abel (1981: 206-7) indicates because of ideology in doctrine significant thereproduction bourgeois is tort and for support inequality, "reoffers symbolic individualism, it reinforces of concept capithat by injury extending fundamental spondsto intangible of to form-from sphere production thesphere the talism-thecommodity of reproduction." Finally,Klare (1981:452) arguesthat "collectivebarunand an thataims to legitimate justify law articulates ideology gaining in hierarchy domination the workplace." and and destructive necessary have it and As thelegalprofession thosewhoreproduce (law professors) sourcesand implications abouttheideological becomemoreself-conscious of theirwork,the notionthatthe law is simplya neutralinstrument-a (M. Horwitz1977: Ch. associatedwiththeriseof capitalism notionitself has And thissuspicion grown paripassu l)-has becomeevermoresuspect. and to attention thelinksamonglaw, politics, withMarxism'sincreasing ideology. in is of The interpretationthelaw as doctrine a vitalprocess thedemystification of law. Yet it is also clear that ideologyis neverfullyformed,



or articulated, internalized the doctrinal at level. There may be value in destroying artificial the coherence and legitimacy legal thought, it of but isn'tclearwhatthosebeyond legalestablishment buildon theruins. the can "Legalism" suffers from"an overemphasis uponjudicial institutions and the relative neglectof the formulation administration law" (Abel and of 1980:828). But to the extentthat "criticallegalism" (see Unger 1983) restricts critique thelevelofdoctrine ideology, suffers same its to and it the fate. Law alwaysresponds somefashion thevoicesand actionsof those in to who are its subjects;in thissense ideologyis as much emergent it is as imposed.The concrete struggles, disputes, and agreements are transthat formed intolaw leave their on imprint boththe form legal institutions of and the content legal ideas. Hence, legal ideologynot onlyreinforces, of and enshrines, legitimates victories thecapitalist the of it order, also registersand presages defeats. its Once again,the contradictory natureof law threatens destroy symmetry closureofanyMarxism to the and thatrefuses to acknowledge mediative its and transitory character. Perhapsmorethananything else,theexplanation legal changeforces of Marxisttheories law out of theiranalytical of straitjacket. is thisissue, It as it invokesthe role of history, whichwe now turn. to

Law and History

At the heartof any Marxistinquirylies the questionof social change. Whatever it mayclaimto be, Marxist else theory mustmeasure itself its by to ability explainmajortransformations the organization economic, in of political,and social life.But like most of the 19thcentury to attempts understand workings Western the of societies (Bock 1952),Marxist theory is hauntedby the "ghost of evolutionism" (Jacoby 1977:78; Gouldner 1980: Ch. 2). The powerof the ghostis evidencedin the willingness to reducesocialchangeto "a developmental schema, a registeringprogression -difficult, halting, occasionally and reversed-when stopped there maybe none" (Jacoby1977:74). Manyoftheexcessesand distortions orthodox of Marxist legal theory maybe tracedto theinsistence thatlaw mustfollow societyand societymust change accordingto a preordained plan. The "withering away" thesis, based as it was on visionsof inexorable progress toward"lawlessness," onlythe mostblatantof thesethemes. is But there another is side to theMarxist visionofhistory. Marx (citedin Jacoby1981:22) was carefulto note that "human history differs from natural in history thatwe have made theformer, notthelatter."As a but of product humanactivity rather thannature, history law reflects the of all ofthecontingencies, humanfailings, misunderstandings uncertainties, and ofsocialexistence. we study movement law within ownhistory, If the of its ratherthan forcing to followthe movement "historicallaws," it it of



becomespossibleand desirable examinethe richness law in thepast to of as well as the present. Two major advancesare associatedwiththe introduction historical of considerations Marxist into legal theory: thehistorical (a) specification of the functions law; and (b) the reexamination the majortimeframes of of within Marxistanalysis: modesofproduction. theone hand,it has the On been recognized thatthefunctions law are historically of contingent; that thesamelaw can accomplish different and serve tasks different masters over time.On theother hand,it has becomeobviousthatlegal changedoes not correspond neatly thelifecourseof any givenmode of production; to nor do specific legalarrangements necessarily within boundaries the stay the of mode of production whichtheyare expectedto appear. in Although Marxist legaltheory clearly has suffered an insistence from that specific legal forms and contents mustbe linkedwithdistinctive modesof economicorganization, fewstudiesin the Marxisttradition a have recognized that laws may servedifferent purposesunderthe same economic conditions and the same purposesunder different economicconditions. Severalexamplesmayproveinstructive thispoint:(a) Vagrancy on laws served very two different over functions several in hundred years precapitalist England (Chambliss1964); (b) the writof trespassundercapitalism "derivesoriginally from feudalideologiesof landowners, feudal reflecting of relations production where territoriality battles land werecrucial and for features" (Sumner1970:273); and (c) in general, "legal techniques maybe createdin the course of development particular of spheresof economic activity whilelegal systems have no place forsuch techniques ... within theirbody of legal doctrine" (Cotterrell lb: 57-58). 198 As theseexamples suggest, Marxist investigations law mayalso benefit of froma morecareful look at the natureof law both betweenand within different modesofproduction. law Comparing acrossmodesofproduction allowsus to acknowledge "slippage"between and economy the law without the denying connections between two.Comparisons thissortmaybe the of made overthe actual passageof timeor by lookingat the waysin which different modes of production (e.g. capitalistand precapitalist) confront each otherin the modem era. In the first the instance, focusis on how laws operating specific one under modeofproduction (e.g. Romancivillaw under slavery)are appropriated fitthe instrumental ideological to and moremodem,way of organizing purposesof another, economiclife(e.g. capitalism)(see Cohen 1978:245-48). In the second case, the processof "modernization" explored is (Greenberg 1980b;Fitzpatrick 1980a; Cohen 1982) in orderto understand how thevarieties economic, of political, and cultural in organization prevailing precapitalist societiesacquiesce,resist, or compromise withthe legal imperatives the capitalist of worldsystem (Fitzpatrick 1980b;Snyder 1980).Through thistypeofhistorical compari-



bothdiachronic son it becomespossibleto investigate and simultaneously synchronic aspectsof legal and economiclife. In additionto thevalue of studying across modesof production, law it to is also usefulto pay closerattention historically specific legal variation An within theseeconomicforms. interesting exampleof how thissortof of periodization advanceMarxist may understandings legalrelationships is in found theworkofRichardKinsey.In an investigation despotism of and legality, Kinsey(1979:48-49) delineates three periodsin thedevelopment ofcapitalist "within whichqualitative of production changesin thecontrol of organization thelaborprocessare visible."Each of thesethreeperiods the and -manufacture, early periodofmodemindustry, advancedcapitalist production-constitutes, accordingto Kinsey,a peculiarformof deof the the and Here Kinsey spotism: despotisms property, factory, legality. of under is suggesting thenature socialcontrol that capitalism adaptsto and reflects historically the rootedproblemsassociated with class rule. The of despotism legality as Kinsey(1979: 62) has observed, is, epitomized by thefactthat"the content thecontract of but is maybe disputed theform neverquestioned."By distinguishing typeof social regulation this from overproperty Blackstone's18thcenearlier varieties based on control [cf. on of tury emphasis thesecurity private property Kennedy1979)] and (see controlover machines(as found,for example,in claims to commercial our of liberty), can beginto refine understanding how phenomena we as time. broad as capitalism and law are intertwined through from "genetic The recovery history of the like therecovery of fallacy," or politicsfrom"instrumentalism" "statism"and ideologyfrom"false offers hopeofa newlifefora theory the consciousness," facing rigor mortis loose from chainsoforthodoxy, the (Jacoby1981: Ch. 1). But in breaking to Marxistlegal theory also facescentrifugal forces thatthreaten "loosen untilit vanishes the theory intoa cloud of wordsand intentions" M. (R. This dialecticof dangerand hope mustinform Unger,unpublished). any to attempt movebeyondwhatwe have considered thusfar.


While Marxisttheory much to say about law and capitalism, the has on of it silent. The historical and subject law and socialism has beenstrangely reasonsforthissilenceare notso strange to be belabored as contemporary is in of here.Whatis important, however, whether light thedeconstruction I havedescribed theory law under a andreconstruction of socialism likely is to emerge. will have to explorethe natureof law in two contexts: Such a theory socialist "actually existing" states(Bahro 1978) and states(or collectivities within thataremoving toward socialism. them) Despitetherelative longev-



ityof"actually existing socialism"in theSovietUnion,China,and Eastern Europe,relatively accounts law havebeenable to penetrate few of cold war ideologyin the West and partysciencein the East. Since socialistlaw is rarelypresented the West in otherthan approvedform, has been to it extremely for difficult Western scholars assessitsdeeperdimensions to and implications. This may also be true in insurrectionary revolutionary or their situations, and although very fluidity confusion creategreater opporfor tunities study(e.g. Santos 1977, 1982; Issacman & Issacman 1982; Spence 1982). However,neither "Socialism" nor "Capitalism,"at whatever stage of can development, be treated a monolithic as social formation deformaor tion.The growing the gaps between ideologies, and self-conceptions, realities of legal affairs both typesof systems in providea fertile groundfor criticalresearch. A promising way of lookingat theseinconsistencies theexamination is of what Santos (1979) has called "dual power." Under stable pre- and situations wellas during as postrevolutionary periodsofrevolutionary ferment is possible identify it to embryonic, poorly and organized, moreor less and transitory submerged of systems "people's law." These arrangements mayexist or alongside, within, in explicit defiance official Everything of law. from neighborhood justice,worker's courts, tribunals, local mediation and on systems theonehand,to vigilantism, hidden the and economy, persistent forms "crime"(Black 1983) on theother, of can embody thesestructures and episodes law. The relationship of between political constellations this of sortand their moreinstitutionalized can counterparts be studied within all of types economic systems partofthedialectic as between as alienation law and praxis. In this and certainly otherways, questionsabout law and socialismcan be productively redefined. The fundamental questionframing this inquirymay now be restated: Whichis likelyto wither-law, sociologyor Marxism?The answerwill depend,of course,on whether Marxismcan meetthe challenge posed by itstheoretical crisis.A blinkered Marxismwillremain content discount to bothlaw and sociology the"revolutionary in struggle": becauseit will law inevitably "wither away"; sociologybecause "socialismsuppresses social science"(Cohen 1980:302). The unification theory practice of and promises to end the sociology law: "in the bright of lightof socialismthe torchof the specializedinvestigator invisible" is (Cohen 1980:302). But thebright of light whathas traditionally promoted socialism been as mayblindas wellas reveal;it maybe Marxism, rather thanlaw therefore, or sociology, actually that withers away.The declineofconventional Marxismas an explanatory system-onlyone aspectof whichI have examined here-is evenmorestriking whenwe consider thatithas beenaccompanied



"success"(see Jacoby bytheunprecedented as 1981)ofMarxism a political rallying point.Whatever think Marxism'stheoretical we of strengths and it to weaknesses, is important keep in mindthat"about one thirdof the of world'spopulationlives underthe governance statesregarding themselvesas Marxist, and all thishas come about in littlemore thanhalfa century" (Gouldner1980:4). In reflecting thecontradictions on between Marxism's political and theoreticalstatusit is clearthattheMarxistanalysisof law need not standor fallon thebasis oflegal "successes"in actuallyexisting socialist societies, or, as some ideologswould have it, on its abilityto providea logically impenetrable, In appropriately pedigreed, totally and explanatory system. thosecases where Marxist theory givesup itssearchfor"universal rationalizingprinciples" (Horwitz1981) and itsclaimsto beingan all-encompassing cosmology-aspirations shared,ironically enough,by its archenemy positivism-it getdownto thebusiness studying can of law. At thatpoint, Marxistperspectives law can becomepartof the projectthatMarxism on holdsso dear-the harnessing law to thepurposes society of of rather than the harnessing society the purposesof either of to or capitalism law.
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