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Contemporary Crises, 7 (1983) 353-370 353
Elsevier Science Publishers B.V., Amsterdam - Printed in The Netherlands

WEBER AND MARX ON LAW: DEMYSTIFYING IDEOLOGY AND

LAW - TOWARD AN EMANCIPATORY POLITICAL PRACTICE

DRAGAN MILOVANOVIC

In the last few years, scholars once again have looked at the relation-
ship of law to social economic developments. Weber and Marx stand out
as the most discussed key spokesmen in this recent literature. Neither
of their writings, however, have been analyzed critically and exhaustively

-
to the detriment of precision in recent thinking on the development of
law under capitalism. This essay will first explore three problematics: the
relationship between law and domination, the relationship between law
and political structure, and the relationship between law and the economic
system. It will then address, in part two, the question of repressive for-
malism [1 ] at both the formal level (lawmaking), as well as the substantive
level - law in practice (lawfinding). There I will argue the potentially greater
merits of Marxian analysis over Weberian analysis in uncovering the more
subtle forms of repressive formalism in praxis, and so, too, the necessary
direction for emancipatory political practice in lawfinding.
Little has been written on a Weberian analysis of law and development.
With few exceptions [2], Weber's analysis, notably in some two hundred
and fifty pages in volume two of Economy and Society [3], has been
little argued in academic circles. This essay will highlight key points in
his analysis. I will then juxtapose the Marxian perspective, in its many
forms, on Weber's analysis.
At the outset, Weber's definition of law has it that ". . . an order will be
called law if it is externally guaranteed by the probability that coercion
(physical or psychological), to bring about conformity to avenge viola-
tion, will be applied by a staff of people holding themselves specially ready
for that purpose" [4]. He goes on to identify several forms of legal thought.
It must be pointed out that these are "ideal-types" or, more accurately,
methodological devices serving heuristic purposes that permit analysis
of legal systems of concrete societies. Briefly, the structure of legal thought
can be placed along two dimensions - rationality/irrationality and formal/

Long Island University, Greenvale, New York 11548

Paper presented at the Annual American Humanist Society Conference, Cincinnati, Ohio - October
1981

0378-1100/83/$03.00 © 1983 Elsevier Science Publishers B.V.

354
substantive. "Substantive irrational law" exists where decision-making
is influenced by ethical, emotional, political, and practical considerations
of the moment. "Substantive rational law" exists where a set of principles
external to the legal system are guiding. For example, political, ethical,
philosophical, religious, ideological, or some conception of social justice
may be paramount in decision-making. "Formal irrational law" exists
where decisions are made based on oracles, revelations or prophetic ideals.
Here, decision-making is unpredictable. Finally, "formal rational law,"
or formal logical rationality, exists where lawmaking is based on princi-
ples that are autonomous, general, and universal. For Weber, formal log-
ical rationality, or what is presently generally referred to as legal formalism,
is composed of five principles:

... first, that every concrete legal decision be the 'application' of an abstract legal proposition
to a concrete 'fact situation'; second, that it must be possible in every concrete case to derive
the decision from abstract legal propositions by means of legal logic; third, that the law must
actually or virtually constitute a 'gapless' system of legal propositions, or must, at least, be treated
as if it were such a gapless system; fourth, that whatever cannot be 'constructed' rationally in
legal terms is also legally 'irrelevant'; and fifth, that every sound action of human beings must
always be visualized as either an 'application' of legal propositions, or as an 'infringement' there-
of... [5].

Weber was, therefore, occupied with the formal qualities of law as such.
He did, however, recognize the "insoluble conflict" between the formal
principles of justice and notions of substantive justice [6]. He did point
out that such notions as "social law" based on ideas of "human dignity"
and "justice" would continue to be advocated "by labor and other inter-
ested groups . . . (and) also by legal ideologists" [7]. Thus concepts such
as "economic duress," or "the attempt to treat as immoral, and thus as
invalid, contract because of a gross disproportion between promise and
consideration . . ." [8], are derived from ethical principles and thus their
basis is substantive justice.
Weber also analysed the relationship between the legal system and forms
of domination. Domination is defined by Weber as "the probability that
a command with a given specific content will be obeyed by a given group
of persons" [9]. Legitimation, or the oughtness of commands can, in turn,
be seen in terms of the acceptance of the specific command. Legitimate
domination exists whenever consensual understanding exists, rooted in
the conjucture of political structure (and its forms of domination) with
a particular type of legal order. Hence, "traditional" types of domination
depend on a belief in the sanctity of traditional social practices and the
form of legal thought is either formal irrational or substantive rational.
"Charismatic" domination rests on the devotion of subjects to persons
with exceptional qualities and the form of legal thought is either formal
 355
irrational or substantive irrational. Finally, legal domination (rational dom-
ination) rests on the belief in the inherent rightness of logically and ra-
tionally constructed laws that are autonomous, general, and universal,
and the form of legal thought is formal logical rationality.
With the above distinctions in mind, it is now time to briefly state Weber's
position as to the etiological factors behind the development of law [10].
Many authors have commented on Weber's repudiation of any monocausal
analysis of the development of law. Weber has stated that "I would like
to protest the statement by one of the speakers [at the German Sociol-
ogical Association in 1910] that some one factor, be it technology or
economy, can be the 'ultimate' or 'true' cause of another" and he goes
on to say that "If we look at the causal lines, we see them run, at one
time from technical to economic and political matters, at another time
from political to religious and economic ones, etc." [111.
At many points in his analysis, Weber quite clearly states that similar
economic substructures do not have necessarily similar political and cul-
tural superstructures. The economy being "determinant in the last instance"
was alien to Weberian analysis. Weber, in one of the few polemics levied
against Marx, points out that Marx's assertion that "the hand-mill gives
you society with the feudal lord; the steam-mill, society with the indus-
trial capitalist" [121, confuses technological with economic phenomena
[13]. Thus, for Weber, there was no one ultimate cause but rather many
independent factors that contributed to the development of specific legal
techniques. First, a "decisive factor" was the development of centers of
commerce [141, although Weber was quick to point out that "economic
situations do not automatically give birth to new legal forms; they merely
provide the opportunity for the actual spread of a legal technique if it
is invented" [15]. Elsewhere he states that "economic conditions have ...
everywhere played an important role, but they have nowhere been de-
cisive alone and by themselves" [16]. A second factor was the rising class
of legal scholars, initially recruited from the ranks of clergy [17]. Codi-
fication and rationalization of law was therefore, at this point, possible.
Third, the influence of Roman law with its adherence to logical technique
[18] added to the development of law. Fourth, with the development
of a commodity market, and so, too, with capitalism, capitalist enterprises
increasingly became dependent on legal security [191 and stability. For
him, "special forms of transactions and special procedures, like the bill
of exchange and the special procedure for its speedy collections, serve
this need for the purely formal certainty of the guarantee of legal enforce-
ment" [20]. Whereas in primitive societies "status contracts" [21] with
their reliance on "personal confidence and trust in the loyality of others"
[22] would assure fulfillment of obligations, in a market place charac-
terized by commodity-exchange, a need arose in legal techniques to assure
356

trustworthy conduct [23]. "Purposive contracts" [24] developed, the

sole aim of which was predictable performances or results, particularly
economic [25]. Thus, the rise of formal legal rationality was attributable
to these four developments. An overriding factor, the "major factor,"
was an "alliance of monarchical and bourgeois interests" [26]. A recip-
rocal effect was the end result: formal legal thought merged with political
and economic needs which in turn strengthened the rising bureaucratic
state which could govern by a system of rational rules which in itself would
be its own legitimizing principle for continued domination. This in turn
put a premium on legal thought that was formal, logical and rational which,
in its formal application, was general, universal, and autonomous. As has
been said by Trubek [27] ". . . a calculable legal system offers the most
reliable way to combine coercion and predictability."
In sum, Weber's analysis of law under capitalism can be seen as some-
what eclectic, de-emphasizing monocausal analysis in favor of a multiple
factor approach. For some commentators, notably Razzell [281, his re-
pudiation of any one factor being "determinate in the last instance," and
his reliance on the idea that all factors, being causative agents, lead to
an "infinite causal regress" [29] - that is, Weber explains everything and
nothing [30]. Additionally, Weber's reliance on the formal qualities of
legal technique places minimum emphasis on substantive factors. Weber
does note, however, in passing, that the reliance on legal formalism can
reinforce coercion and devaluate overall freedom. First, labor contracts
provide ". . . the opportunity to use, by the clever utilization of property
ownership in the market, these resources without legal restraints as a means
for the achievement of power over others" [31]; second, because of the
unequal distribution of economic power ". . . which the system of formal
justice legalizes, this very freedom must time and again produce conse-
quences which are contrary to substantive postulates . . ." [32] ; third,
because of the reliance of legal formalism in legal practice, conflicting
interests in trial proceedings can be channeled into peaceful contests, which
in turn "can contribute to the further concentration of economic and
social power" [33]. Hence, ideals of substantive justice can suffer. Over-
all, however, Weber was, again, more interested in the formal qualities
of law, legal thought, and legal techniques and their developments rather
than in "substantive qualities." It certainly seems the case, then, that Weber
is somewhat of a "bourgeois materialist" [341. And so, too, it seems that
his analysis of law was overly preoccupied with facilitative functions of
law, overlooking repressive and ideological functions. Whereas it is true
that a reliance on logical formal rationality in law maximizes certainty,
calculability, and predictability in the market place, it is also true that
legal formalism serves other functions, that, again, are minimally scruti-
 357
nized by Weber. Finally, and I will address this issue in the last part of
this essay, the question arises as to praxis: how does, for example, a re-
liance on the analysis of the formal qualities of law lead to emancipatory
political practices by subjects in legal practice (lawfinding) itself? I will
argue that it does not. Rather, decoding the formal qualities of law is an
essential stage in repoliticizing trial court proceedings. The construction
of reality in these proceedings, rooted in the use of formalistic legal lan-
guage, obfuscates repressive and ideological functions of law in practice

-
a process expressed clearly by Balbus [35] as "repressive legal rationality."
I have elsewhere referred to this process as "repressive formalism" [36].
I will return to these points shortly, but first Marx.
Marx, unfortunately, did not leave us with a systematic statement about
law in a capitalist state. Thus, to develop a Marxist perspective on law
in a capitalist society it is encumbent upon researchers to collect scattered
passages throughout his voluminous writings and then to integrate these
statements into a systematic statement. Fortunately, in the last few years,
many critical criminologists have embraced this task [37]. Several posi-
tions are emerging that claim Marxist orientations. The earliest systematic
statements on law in a capitalist state were the instrumental Marxist posi-
tions [38] . For Quinney, law is ". . . an instrument of the state and ruling
class to maintain and perpetuate the existing social and economic order"
[39]. Thus, for the instrumental Marxists, the state simply reflects the
interests of the ruling class. In this paradigm the legal order has no auton-
omy. It might be added that in this model the ruling class is endowed
with "strategic consciousness" [40].
The second approach in a Marxist analysis of law, and by far one offer-
ing the most promising and pregnant lines of inquiry, is the structuralist
position. Briefly, these theorists argue that law is relatively autonomous
from some power bloc in society. Further, legal order and other state ap-
paratuses exercise a relative autonomy in their interaction with the power
bloc. Different levels are identified in the social formation according to
the function they fulfill. Each level (defined in terms of economic, po-
litical, and ideological practice existing in a hierarchy of determinations)
is relatively autonomous from each other level. The state functions as
the "factor of cohesion between the levels of social formation . . . and as
a regulating factor of its global equilibrium as a system" [41]. Some struc-
turalist 'Marxists argue for the primacy of the economic instance as the
overdetermining practice. Other structuralist Marxists argue for the pri-
macy of political practices (the juridico-political superstructure of the
state [421) as the overdetermining practice. It might be added that both
approaches make reference to the economic practice as being "determining
in the last instance." However, I believe that a distinction can be made
between those perspectives that distinguish between the economy being
358
determinate in the first instance from those that see the economy being
determinate in the last instance. Thus, two positions may be identified
within the structuralist Marxist position. First, the "capital logic" school
[43] begins ". . . its analysis of the state and law through the logical der-
ivation of progressively more concrete concepts from an appropriate, high-
ly abstract theoretical starting point" [44]. By far the most important
starting point in recent analysis of law has been the circulation of com-
modities in the market place, a position generally referred to as the com-
modity-exchange theory of law [45]. Briefly, it is said that the legal form
undergoes the same development as the commodity form; in fact, a ho-
mology is said to exist in the development of the two. The continued ex-
change of commodities in competitive capitalist market places eventually
defines out of existence use-value (which corresponds to qualitatively
distinct social needs as well as to a certain quota of social labor expended
in a commodity's production), replacing it with exchange-value (signif-
ying a specific ratio of exchange), defined by the universal equivalent

-
money - which is the phenomenal form of appearance of this underlying
process. This process has been defined as the fetishism of commodities.
As has been said elsewhere, "the commodity form undergoes an abstrac-
tion, a masking, by which the original content disappears, to be replaced
by the universal equivalent. Exchange value here is precisely the phenom-
enal form of abstract labor" [46]. Legal fetishism undergoes a similar
process. A commodity owner not only exchanges commodities in the market
place, but in the process is transformed into an individual with economic,
political, and juristic interests. Any qualitative distinctions between sub-
jects with varied human needs or interests are transformed into abstrac-
tions - the juridic subject, the legal equivalent. Thus, in the capital logic
school, or the commodity-exchange theory of law, the preoccupation
of legal theory has been ". . . to derive the necessity of specific forms of
law and to reveal the essential class character of law beneath its appear-
ance of equality, neutrality, and universality" [47]. In fact some theorists
[48] argue that the form and function of the state are a derivative of "the
need to regulate the relation between commodity producers by means
of law and money" [49].
The second subcategory of the structuralist Marxist position I will refer
to as the interpellation perspective. Owing allegiance to Althusser [50],
Poulantzas [51], Gramsci [52], and, more recently, Edelman [53], this
perspective focuses on the social formation as a whole and posits the idea
that:

a mode of production . . . is a complex structured whole, compromising several relatively

autonomous regions which nonetheless condition each other, is characterized by one region (eco-
nomic, juridico-political, or ideological) over the other regions, and is subject to economic deter-
mination in the last instance [54].
 359

In this perspective individuals are seen as passive, as merely "supports"

of the reproductive apparatuses. For these theorists the juridico-political
superstructure interpellates agents of production as individual juridical
subjects with economic, political, and legal interests. Poulantzas argues
that the juridico-political superstructures of the capitalist state, through
the "effect of isolation" both separate individuals from their economic
situation by constituting them as individual subjects, and, at the same
time gives them political interests and constitutes them as juridic sub-
jects - together these forces both divide and unite individuals under
the banner of the state [55]. As Jessop has summed up: ". . . the capi-
talist state presents itself as the strictly political, public unity of the people-
nation considered as the abstract sum of formally free and equal legal
subjects" [56]. For this brand of structuralist Marxism, then, ideologi-
cal state apparatuses (the family, schools, religion, the media) have the
effect of constituting subjects as juridic subjects through the process of
interpellation. Thus ideology, only explicable within the semiotic theory,
is a sign system, the major elements of which is the dyad - signifier and
signified. The signifier (the sign) stands for ". . . something other than
itself, an outcome and element of social practice which reflects and des-
ignates the world of that practice within the consciousness of human be-
ings" [57]. Laws, according to some theorists, are thus actively embodied
ideologies [58]. Ideological state apparatuses thus perpetuate ideologies
of the hegemonic fraction within the power bloc, whose overriding ob-
jective interest is the perpetuation and reproduction of the relations of
production and the given social formation. Through the mechanism of
interpellation, the subject is constituted ". . . which thinks of itself as
free, which chooses to obey the commands directed at it . . . and which
commits itself to patterned actions of the consequences of principles it
itself has chosen" [59].
Whereas the "capital logic" school focus on the primacy of commodity-
exchange, a position that is economistic, the interpellation perspective
focuses on the independent effects of ideology and juridico-political super-
structural practices. In either case, the individual is abstracted as a juridic
subject; either from "beneath," from substructural condition (the circula-
tion of commodities), or from "above," by the process of interpellation.
The latter approach in the analysis of the juridic subject, ideology, and
law can quickly slip into an instrumentalist position by simply sliding
into the argument that members of the power bloc have "strategic con-
sciousness" [60]. The former position, on the other hand, by focusing
on the sphere of circulation of commodities, and the development of ab-
stractions (the commodity and legal form), may slip into a preoccupa-
tion of form analysis at the expense of the analyses of content or sub-
360

stance, a major component of which has repressive qualities. Thus this

position, the commodity-exchange theory of law, may slip into narrow
argumentation, overlooking the sphere of commodity production and
its exploitive and repressive qualities - alienated and exploited labor (here
surplus value, namely profit, is the phenomenal form). Fine has pointed
out the necessity of analysing commodity production: "The bourgeois
class character of law, as opposed to its fetishized and atomistic character,
only becomes apparent when we analyse its determination by relations
of production, and not by circulation alone" [61]. Thus bourgeois law
and its specific form gives expression to ". . . the constant reproduction
of expropriation without return" [621. It seems, therefore, that law has
facilitative functions, as Weber quite clearly pointed out, ideological func-
tions as Poulantzas, Edelman and Althusser pointed out, as well as repres-
sive functions as Fine and others have recently pointed out. Thus, to ana-
lyse contract law, for example, it should be seen that it not only facilitates
exchange, maximizing predictability and calculability, but also reinforces
exploitation (repression) by giving the individual the ". . . liberty . . . to
be exploited equally by those who own the productive property" [63],
as well as subjugating the employee to the employer by denying the rel-
evance of the ideological grasp of the employee in favor of the employer.
Law, therefore, is all this and more. Proletarian ideology reaching the level
of strategic consciousness may, under yet unspecified conditions in Marx-
ian analysis of law, develop which may be voluntarily or involuntarily
incorporated into law. Thompson [64] as well as Fine [65] have pointed
out clearly that the power bloc can effectively maintain legitimacy by
occasionally subordinating self-interest to constitutional mandates, hence
denting any potential for long range revolution.
In sum, simplistic structuralist Marxists may be guilty of providing us
with a theory that ". . . the system functions without telling us how" [66]
and of not realizing that ". . . to explain the advantage of juridical ideol-
ogy for the rulers (in terms of its "isolation effect" on the working class)
does not explain how this ideology came into being . . ." [67]. Further,
structuralist Marxists must be called to task in specifying under what con-
ditions the economic instance is "determinant in the last instance." On
the other hand, instrumental Marxists are hard pressed to explain how
some laws in existence do not clearly serve the interests of elite groups.
* *
*

In the previous sections, various perspectives on the development of

law in a capitalist society were discussed. It was pointed out that Weber's
was a formal analysis of law that stressed facilitative functions; on the
 361
other hand, the many perspectives arising from Marxian analysis focus
not only on the form of law and how it changes over time but also on
its various other functions, particularly its ideological and repressive func-
tions. It is now necessary to look at the content of law, and, more par-
ticularly, at law in practice. The focus here, therefore, will be on delin-
eating how repressive, facilitative, and ideological functions of law take
place in the reconstruction of reality in the courtroom. I hope, by ana-
lysing more subtle forms of biases and discriminatory practices that gen-
erally enter law in practice, to point to potential emancipatory political
practices or strategies. Weber has already pointed out, although in some-
what cursory fashion, that even a form of law based on formal logical
rationality can have outcomes in practice that are exploitive, and result
in the perpetuation of domination by those with economic power over
those who merely must enter "freely" into pre-defined pre-established
contracts. Marxists, on the other hand, have pointed out that class ine-
quality inevitably breeds legal inequality. Marx, for example has stated
that oversight in the formal rights perspective in that it is ". . . a right of
inequality in its content like every right. Right by its very nature can con-
sist only in the application of an equal standard; but unequal individuals
... are measured only by an equal standard in so far as they are brought
under an equal point of view . . . . To avoid all these defects, right instead
of being equal would have to be unequal" [68].
Formal logical rationality, as I have explained earlier, is a system of
lawmaking that rests on legal techniques that are general, universal, and
autonomous. My focus now is on how judgment practices take place in
the courtroom, hence in legal praxis. At the outset, various forms of dis-
pute settlement exist. I shall be discussing legal practice in criminal court
proceedings. Briefly, rendering legal judgments is a function of presenting
evidence in story form to interpreters (judges, lawyers, jurors). As Bennet
and Feldman [69] have pointed out, stories are analytical devices for pre-
senting "what happened" in an internally logical, consistent, hopefully
believable way. Borrowing from Burke's idea of the pentad (the five ele-
ments of social action being the scene, act, agent, agency, and purpose),
Bennet and Feldman constructed a typology explicating the relationship
of story elements with categories of legal judgment [70]. When direct
evidence is available stories will situate the action and actor in space and
time (the elements of the story structure relied on will be the actor-scene-
act triad), establish the actor's intention (the elements of the story struc-
ture relied on will be the actor-purpose-act triad), and, finally, substantiate
the execution of the act (the elements of the story structure relied on
will be the actor-agency-act triad). When circumstantial evidence exists,
stories given must allow interpreters to draw inferences. Thus instead of
situating the act, the story-teller will show opportunity existed; instead
362

of intention, motivation; and instead of execution, capability. Adjudi-

catory processes, then, revolve around presenting stories that allow in-
terpreters to judge whether the stories given are structurally complete
and internally consistent; they "create interpretative contexts for social
action," and "in isolation from social context, behaviors or actions are
ambiguous" [711. Stories that have missing elements or make use of sym-
bolizations that do not comport with conventional (dominant) understand-
ings of reality and causation are more likely to be seen as suspect. On the
other hand, stories that make use of symbols that are judged as internally
logical and which comport with everyday logic are more likely to contrib-
ute to a favorable judgment. Thus for theorists such as Bennet and Feldman,
Cicourel, and Emerson, rendering judgments in court proceedings has more
to do with communicative and interactive work than with formal legal
procedural techniques used to establish "what happened." Standardized
use of procedural techniques, clothed and legitimated by constitutional
baggage, facilitates law finding. This, therefore, is the counterpart to the
use of formal logical rationality at the lawmaking level. In both cases,
formalism provides the state with logical formal principles for both law-
making as well as for lawfinding. However, it is now necessary to examine
lawfinding and spell out ideological as well as repressive functions of law
in practice and, more particularly, how dominant modes of thought and
conceptions of reality are reproduced in the courtroom.
Previously it has been pointed out [72] that repressive formalism, or
repression by formal logical rationality, is a process by which situated
acts along with their connected vocabularies of meaning are de-situated
and de-vocabularized, a process by which the complexity of events located
in concrete conditions of existence are abstracted and channeled into legal
thought (reification) that strips away otherwise implicated socioeconomic
factors, i.e., class inequalities and reduced life chances. These are not rel-
evant factors in legal proceedings. The motive for an act is rarely enter-
tained but rather relegated to the sphere of "non-justiciable issues." And
there it lies in a separate universe that other differentiated disciplines enter-
tain in philosophical procrastination. The point I merely emphasize is
that by focusing simply on the singularity of the event, artificially fixing
it in time and space, imprisoning it in the neat confines of criminal labels
rather than in its manifold interconnections, simply leaves the courts with
several relatively simple legal questions: did the act occur (actus rea)?
did the defendant have the sufficient quantum of criminal intent (mens
rea)? If the answer to both questions is yes, then the label "criminal" will
be attached, and the only question remaining is the appropriate level of
punishment. Again, however, by appearing to de-politicize law, the courts
have simply provided techniques by which facilitative functions have been
 363
served as well as ideological and repressive ones, that is, the meanings sub-
jects attach to their actions stemming from linguistically shared intersub-
jective understandings are relegated to the status of non-justiciability and
hence to the status of non-importance. By denying the centrality of moti-
vation, the courts have severed their links to the possibility of contributing
to emancipatory practice. Is it any wonder, then, why our understanding
of crime causation is archaic? We simply are artificially confined to ana-
lysing pre-coded phenomena - the labeled criminal, as well as pre-coded
meaning structures - imposed by the functioning of the legal apparatuses.
Would it not then seem reasonable to conclude that if criminal court pro-
ceedings were focused on the centrality of motivation, the picture we
would begin to see emerging would be one that would give recognition
to more compelling etiological factors in criminal activity, and so, too,
provide us with the means of ameliorating those factors in humane ways?
In sum, even a system of law that is autonomous, general, and universal,
such as formal logical rationality lawmaking, can, in practice (in lawfind-
ing), have repressive and ideological functions even though applied equally
to all. Anatole France's oft-cited quip that the law in its majesty equally
prohibits the rich and poor from sleeping under the bridges of the Seine
surely illuminates this point.
I now address the question of lawfinding as a reification of social re-
ality. It has already been pointed out that legal actors (both tellers and
interpreters of stories) rendering judgments in the courtroom address the
central questions of: did it happen that way? and could it have happened
that way? Thus inferences must be drawn from stories presented (stories
act as analytic devices by which facts are presented in coherent ways).
I have pointed out elsewhere that stories ". . . presented in an internally
consistent and logical manner, with minimal structural ambiguities, resting
on symbolic usage reflecting dominant conceptions and understandings
of reality, are more efficacious in judgment rendering than a simple re-
liance on the presentation of what actually may have happened" [73].
And here arises the dilemma. The state will present a version of reality,
the premises and assumptions of which rest on a model of society that
is assumed to be a well-ordered, stable, and consensual world [74]. So,
on the one hand, the state attempts, in its presentation of stories rooted
in dominant understandings of reality, to ". . . transform political motives
and realities into legal and hence apolitical reality" [75] ; on the other
hand, the linguistically established intersubjective understandings of re-
ality must be seen as differentiated according to location in social space
-

hence, those whose symbolic usages reflect a non dominant mode of thought
and understanding of reality are more likely to have their stories judged
as suspect, a process expediting their guilt. Thus, indeed, ". . . discrepancies
364

in language skills, patterns of language usage, and cognitive styles charac-

teristic of different groups in society" [761 are more crucial predictor
variables in judgment rendering practices than are such extra-legal factors
as charismatic qualities of lawyers, biases of judges and jurors; or even
the factual guilt of the defendant. It would then seem that some subjects
in society are equipped ". . . with more complex cognitive and communi-
cative capacities" [77] which, in turn, allow them to present stories that
are more believable. Therefore, it seems appropriate to speak of socio-
economic guilt instead of legal guilt anytime the defendants are found
guilty simply because of their location in socioeconomic space along with
their specific linguistically established intersubjective understandings. Our
collective understanding of crime is therefore continuously legitimated
by the state's version of the world.
It is not sufficient only to point out that ". . . the key variables in justice
processes involve facility with language, the ability to manipulate concrete
facts within abstract categories, and the manner in which interpretive con-
texts that represent social reality are structured" [78]. It is also neces-
sary to simultaneously understand: (1) how a hegemonic class's under-
standing of social reality is perpetuated, and thus how their conceptions
of social reality are coded and presented to those targeted in the media;
(2) how interpreters decode messages received; and, finally (3) how the
very structures of the relations of production have a determinative influ-
ence on the development of cognitive and communicative skills - skills
that are crucial variables in "reconstructing reality in the courtroom."
First, the juridico-political instances, the ideological effects of super-
structural practices, if I may borrow from Gramsci [79] and Poulantzas
[80], impact on the construction of social reality by simply framing, in
the media, ". . all competing definitions of reality within their range,
bringing all alternatives within their horizons of thought. They set the
limits - mental and structural -- within which subordinate classes 'live'
and make sense of their subordination in such a way as to sustain the dom-
inances of those ruling over them" [81]. Thus ideologies (belief systems,
ideas, meanings, conceptions and theories), the internal elements of which
show a relationship of a sign to a signified, producing the meaning of an
otherwise "meaningless" phenomenon, are reflected in language usages.
Unfortunately, little systematic study has been carried out by critical crim-
inologists in this area. Nevertheless, meaning is communicated by signs
and sign systems (language) because of the ". . . way they are internally
organized together within a specific language system or set of codes" and
because of the way a symbol ". . . articulates the way things are related
together in the objective social world" [82]. Thus, hegemonic domina-
tion over subordinate classes can be established by coding reality in a se-
 365

lected manner and presenting these codes via media for public consump-
tion. So, therefore, Hall is right on the mark when he states ". . . the social
knowledge which the media selectively circulates is ranked and arranged
within the great normative and evaluative classification, within the pre-
ferred meanings and interpretations" [831. Hence, the media selectively
choose certain phenomena, offer us "preferred" explanations of events
in the social world (encoded in symbolic forms), and ". . . cast these prob-
lematic events, consensually, somewhere within the repertoire of the dom-
inant ideologies" [84]. Thus, practical consciousness, the man-in-the-
street view, has horizons bracketed, filled in with dominant ideological
symbolizations - encoded reality within the hegemonic framework. The
content of this hegemonic set of symbolizations, of ideology, of a set of
sign systems ". . . contains premises (that) embody the dominant defi-
nitions of the situations, and represent or refract the existing structures
of power, wealth and domination, hence that they structure every event
they signify, and accent them in a manner which produces the given ideol-
ogical structures . . ." [85].
Decoding messages, by all means, however, cannot be seen as simply
homologous to coding social phenomena. Decoding messages will certainly
reflect the decoder's own social and material conditions of existence [86].
I now turn to this process.
A potentially fertile direction of inquiry is to analyse labor market con-
ditions and how location in these structures lead to the development of
differentiated coding and decoding schemes as well as the development
of qualitatively distinct cognitive and communicative skills. For this pres-
ent essay, it is then interesting how these modal type of adaptations either
preclude or enhance believable story-telling in the courtroom (lawfinding).
Dual labor market theory [87], for example, has posited two major areas
of labor markets: the primary labor market consists of jobs that are gen-
erally high skill-oriented, with relatively high pay, relatively good working
conditions, clearly defined job ladders, with less authoritarian working
conditions, some degree of continuity and permanency of employment,
and with a relatively high emphasis on due process in the work place; the
secondary labor market consists of jobs that are generally low skill-oriented,
low paying, with little chance of advancement, coupled with poor working
conditions, little due process, authoritarian structures and unpredictable
employment (little continuity and permanency of employment.) This
dual labor market segmentation is said to have developed in the formative
years of monopoly capitalism, 1880s-1920s. It reflected the rising im-
perative of economic conditions. Edwards has pointed out:
366
While the development of the primary market, especially internal markets, was linked to the
rise of monopoly capitalism, the secondary labor market represents a continuation of the char-
acteristics of a more competitive, small-business capitalism. In the secondary market, control
is based on more open and arbitrary power, and the sanction of surplus labor tends to prevail.
This system has none of the built in stability features of primary jobs, and tends to produce
both jobs and workers in which stability is neither rewarded nor particularly desired [88].

Several integrative statements can now be made. First, it seems clear

that because a subject belongs to one labor market rather than another,
he or she is likely to develop cognitive and communicative styles that are
labor market specific. Hence, primary market laborers are, more likely
to develop those very techniques of communication resting on systems
of symbolizations that, in a courtroom setting, allow (1) the teller of stories
to present more believable renditions of "what happened" and (2) allow
the interpreters to make clearer inference as to the stories presented

-
all this because the primary labor market worker is in a better position
to mobilize (verbalize) dominant models of social reality which act as
relevant background horizons that bracket everyday verstehen. And in
turn, this acts as a background by which stories are measured in the court-
room, in the "reconstruction of reality in the courtroom." The secondary
labor market worker, on the other hand, because of his or her failure to
share dominant thought styles and communication techniques, is more
likely to present stories that will be seen as suspect.
Second, much literature has pointed out that awarding bail discrim-
inates against certain segments of the population in that those who are
awarded bail, holding constant the severity of the charge, are less likely
to be convicted, and if convicted, sentenced to less severe sentences than
those who are not awarded bail. Clearly, secondary labor market workers,
because of their behavioral adaptations in the periphery labor markets,
are more likely to develop characteristics that militate against them being
awarded bail. For example, relevant criteria in awarding bail are often
community roots and job stability - criteria that clearly place secondary
labor market workers at risk in criminal court proceedings. And thus, for
those found guilty because of this factor, we may again speak of socio-
economic guilt.
Third, proximity to the core labor market (primary labor markets) is
a predictor variable in justice rendering. A qualitatively different accent
is reinforced in conduct in this segment, namely, a heavy reliance on "pur-
pose-rational action" [89] stemming from the link between core indus-
tries and their needs for a calculable, predictable, and stable market which
has an homologous impact on the development of cognitive and communi-
cative skills. Secondary labor markets are more discontinuous, unpredict-
able, unstable, and make long-range planning problematic. A heavy em-
 367

phasis on the subsystem of "purpose-rational action" in the core market

would lead to a qualitative, superior ability to present stories in forms
that clearly allow favorable inference to be drawn - stories that are based
on dominant conceptions of causation and reasons for actions. The heavier
reliance on "purposive-rational action" and so, too, its companion, formal
logic, in core markets by workers would place them in a distinct advantage
in presenting stories that are believable, that is, "logical." Secondary labor
market workers, because of their reduced reliance on "purposive-rational
action" (the worker is often faced with a decision of either satisfying needs
immediately or not at all; delayed gratification may be gratification lost
forever), and the greater reliance on everyday commonsense logic stemming
from their periphery location in the market place, may be at a gross dis-
advantage in abstracting from their location in social space and presenting
stories that are believable - their cognitive and communicative skills are
rooted in a qualitatively different system of relevancies and shared inter-
subjective understandings.
Fourth, the increasing adherence to experts and lawyers with their pro-
fessional socialization experiences rooted in formal logical discourse, stem-
ming from dominant understandings of reality, may render a secondary
labor market worker's verstehen suspect at the outset.
In sum: it is imperative to analyse not only formal qualities of justice,
lawmaking and lawfinding, that is their facilitative functions; it is also
paramount that we look at ideological as well as repressive functions. In
this last section I have attempted to show how social reality may be reified
in the process of "reconstructing reality in the courtroom." For eman-
cipatory political practice to develop in the courtroom we must, as a min-
imum condition for repoliticizing the trial, and particularly to enhance
emancipatory practice, develop strategies by which a qualitatively differ-
ent set of symbolizations, sign systems, and ideologies generally, enter
courtroom proceedings and lawfinding - law in practice. This necessitates
qualitatively different modalities of encoding social phenomena which
in turn, if successful, may accentuate mapping the social world with sym-
bolizations based on premises and assumptions that will be the hallmark
of practices of liberation, emancipation, and self-actualization rather than
reification, repression, and domination. The dialectics are clear, the future
less so.

Notes

1 D. Milovanovic (1981a), "The commodity-exchange theory of law: In search of a perspective,"

Crime and Social Justice 16: 41-49.
368

2 See D. Trubek (1972), "Max Weber on law and the rise of capitalism," Wisconsin Law Review
pp. 720-753; A. Hunt (1978), The Sociological Movement In Law, Philadelphia: Temple Uni-
versity Press; A. Giddens (1971), Capitalism and Modern Social Theory, New York: Cambridge
University Press; R. Bendix and G. Roth (1971), Scholarship and Partnership:Essays on Max
Weber, Berkeley, CA: University of California Press; P. Beirne (1979a), "Ideology and ration-
ality in Max Weber's sociology of law," Research in Law and Sociology 2: 103-131.
3 M. Weber (1968), Economy and Society, Vol. 1, 2, G. Roth and C. Wittich (eds.), New York:
Bedminster Press.
4 Ibid., p. 34.
5 Ibid., pp. 657-658.
6 Ibid., pp. 886, 893.
7 Ibid., p. 886.
8 Ibid., p. 886.
9 Ibid., p. 53.
10 Beirne (1979a), op. cit., p. 115; Bendix and Roth (1971), op. cit., pp. 240, 242; Giddens (1971),
op. cit., pp. 133, 194-195; Hunt (1978), op. cit., pp. 110-112, 118-122; M. Albrow (1975),
"Legal positivism and bourgeois materialism: Max Weber's view of Law," British Journal of
the Sociology of Law 2: 15, 21-22, 25; Trubek (1972), op. cit., pp. 723-724, 738-739, 740-
744; P. Razzel (1971), "The protestant ethic and the spirit of capitalism: A natural science
critique," British Journalof Sociology 28: 32, 34.
11 Bendix and Roth (1971), op. cit., p. 242.
12 Ibid., p. 195.
13 See A. Giddens (1971), Capitalism and Modern Social Theory, New York: Cambridge Univer-
sity Press, pp. 194-195.
14 M. Weber (1968), op. cit., p. 683.
15 Ibid., p. 87 (emphasis added).
16 Ibid., p. 883.
17 Ibid., p. 786.
18 Ibid., pp. 793, 797; see also D. Trubek (1972), "Max Weber on law and the rise of capitalism,"
Wisconsin Law Review, p. 738.
19 M. Weber (1968), op. cit., p. 883.
20 Ibid., p. 883.
21 Ibid., pp. 668, 672, 698.
22 Ibid., p. 884.
23 Ibid., p. 884.
24 Ibid., p. 673.
25 Ibid., p. 673; see also D. Trubek (1972), op. cit., p. 740.
26 M. Weber (1968), op. cit., p. 847.
27 Trubek (1972), op. cit., p. 743.
28 P. Razzel (1971), "The protestant ethic and the spirit of capitalism: A natural science critique,"
British Journal of Sociology 28: 17-37.
29 Ibid., p. 34.
30 Beirne (1979a), op. cit., p. 115.
31 M. Weber (1968), op. cit., p. 730.
32 Ibid., p. 812.
33 Ibid., pp. 812-813.
34 Albrow (1975), op. cit.
35 I. Balbus (1973), The Dialectics of Legal Repression, New York: Russel Sage.
36 D. Milovanovic (1981a), op. cit.; D. Milovanovic (1981b), "Review essay: Ideology and law
-

structuralist and instrumentalist account of law," Insurgent Sociologist 10(4)/11 (1): 93-98.
37 See M. Cain and A. Hunt (1979), Marx and Engels on Law, New York: Academic Press; C.
Summer (1979),. Reading Ideologies: An Investigation Into the Marxist Theory of Ideology
and Law, New York: Academic Press; I. Balbus (1977), "Commodity form and legal form:
 369

An essay on the relative autonomy of the law," Law and Society Review 11: 571-587; P.
Beirne (1979b), "Empiricism and the critique of Marxism on law and crime," Social Problems
26: 373-385; P. Beirne (1980), Pashukanis:Selected Writings on Marxism and Law, New York:
Academic Press; D. Hay (1975), "Property, authority, and the criminal law," in Douglas Hay
et al. (eds.), Albion's Fatal Tree: Crime and Society in Eighteenth Century England, Pantheon
Books; P. Hist (1975), "Marx and Engels on law, crime, and morality," in I. Taylor, P. Walton,
and J. Young, Critical Criminology, Boston: Routledge and Kegan Paul; M. Tushnet (1978),
"A Marxist analysis of American law," Marxist Perspectives 1: 96-110; B. Fine (1979), "Law
and class," in B. Fine et al. (eds.), Capitalism and The Rule of Law, London: Hutchinson; Z.
Bankowski and G. Mungham (1976), Images of Law, London: Routledge and Kegan Paul; D.
Milovanovic (1981a), op. cit.; D. Milovanovic (1981b), op. cit.; D. Milovanovic (1982c), "New
directions in critical criminology: Law, ideological effects, and semiotic analysis," paper presented
at the Annual Conference of the Academy of Criminal Justice Sciences, Louisville, Kentucky,
March 23-27; D. Milovanovic (1981c), "Autonomy of the legal order, ideology and the struc-
ture of legal thought," Paper presented at the Annual Conference of the American Society
of Criminology, Washington, D.C., November 11-14; P. Beirne and R. Quinney (1982), Marxism
and Law, New York: John Wiley and Sons; W. Chambliss and R. Seidman (1971), Law, Order,
and Power, Reading, MA: Addison-Wesley; W. Chambliss and M. Mankoff (1976), Whose Law?
What Order? New York: John Wiley.
38 R. Quinney (1974), Critique of Legal Order: Crime Control in CapitalistSociety, Boston: Little,
Brown and Company.
39 Ibid., p. 16.
40 F. Block (1977), "The ruling class does not rule: Notes on the Marxist theory of the state,"
Socialist Review 33: 6-28; F. Block (1978), "Class consciousness and capitalist rationalization:
A reply to critics," Socialist Review 8: 212-220.
41 N. Poulantzas (1973), Political Power and Social Class, Atlantic Highlands, NJ: Humanities
Press.
42 Ibid., pp. 213-214.
43 B. Jessop (1977), "Recent theories of the capitalist state," Cambridge Journal of Economics
4: 340.
44 Ibid., p. 341.
45 I. Balbus (1977), op. cit.; P. Beirne (1979), op. cit.; P. Beirne (1980), op. cit.; D. Milovanovic
(1981a), op. cit.
46 D. Milovanovic (1981a), op. cit.
47 B. Jessop (1980), "On recent Marxist theories of law, the state and juridico-political ideology,"
InternationalJournal of the Sociology of Law 8: 341.
48 B. Blank, U. Jurgens, H. Kastendiek (1978), "On the current Marxist discussion on the analysis
of form and function of the bourgeois state," in J. Hollaway and S. Picciotto (eds.) State and
Capital:A Marxist Debate, University of Texas Press.
49 J. Holloway and S. Picciotto (1978), op. cit., p. 20.
50 L. Althusser (1968), For Marx, Harmondsworth: Allen Lane.
51 N. Poulantzas (1973), op. cit.
52 A. Gramsci (1971), Prison Notebooks, London: Lawrence and Wishart.
53 B. Edelman (1979), Ownership of the Image: Elements For a Marxist Theory of Law, Boston:
Routledge and Kegan Paul.
54 B. Jessop (1980), op. cit., p. 341.
55 N. Poulantzas (1973), op. cit., pp. 189, 213, 118-119, 239; see also S. Clarke (1977), "Marxism,
sociology and Poulantzas' theory of the state," Capital and Class 2: 18-19.
56 B. Jessop (1980), op. cit., pp. 352-353.
57 C. Summer (1979), op. cit., p. 20.
58 Ibid., p. 22.
59 B. Edelman (1979), op. cit., p. 7; see also L. Althuser (1970), Lenin and Philosophy and Other
Essays, New York: New Left Books, pp. 170, 172-174, 176, 180, 182; P. Hirst (1979a), On
Law and Ideology, Atlantic Highlands, NJ: Humanities Press, pp. 32, 69-73, 97; B. Jessop
(1980), op, cit., pp. 352-353, 361-363.
370

60 F. Block (1977), op. cit.

61 B. Fine (1979), op. cit., p. 43 (emphasis added).
62 Ibid.,p.43.
63 C. Summer (1979), op. cit., p. 271.
64 E.P. Thompson (1975), Whigs and Hunters: The Origins of the Black Act, Pantheon Books.
65 B. Fine (1979), op. cit.
66 S. Clarke (1977), op. cit., p. 20.
67 B. Fine (1979), op. cit., p. 36.
68 Ibid., p. 39.
69 W. Bennet and M. Feldman (1981), Reconstructing Reality in the Courtroom, New Jersey:
Rutgers University Press.
70 Ibid., p. 96.
71 Ibid., p. 7.
72 I. Balbus (1973), op. cit.; D. Milovanovic (1981a), op. cit.
73 D. Milovanovic (1982b), "Review of ReconstructingReality in the Courtroom, " by W. Bennet
and M. Feldman (forthcoming); see also W. Bennet and M. Feldman, op. cit.
74 See Z. Bankowski and G. Mungham (1976), op. cit., p. 117.
75 Ibid., p. 124; see also I. Balbus (1973), op. cit., p. 8.
76 W. Bennet and M. Feldman (1981), op. cit., p. 144.
77 Ibid., p. 172.
78 Ibid., p. 144.
79 A. Gramsci (1971), op. cit.
80 N. Poulantzas (1973), op. cit.
81 S. Hall (1977), "Culture, the media and the 'ideological effect'," In James Curran, Michael
Gurevitch and Janet Wollacott (eds.), Mass Communication and Society, London: Edward
Arnold, p. 333.
82 Ibid., p. 328.
83 Ibid., p. 341.
84 Ibid., p. 343.
85 Ibid., p. 344 (emphasis added).
86 Ibid., p. 344.
87 R. Edwards, M. Reich, and D. Gordon (1975), Labor Market Segmentation, Lexington, MA:
D.C. Heath and Company.
88 Ibid., p. 21.
89 J. Habermas (1970), Toward a Rational Society, Boston: Beacon Press, p. 91.