- 01 Oct 2004 00:23
#467893
To a large degree a legal system develops in tandem with bourgeois relations of production and commodity development in general. I guess in a way it is correct that the legal ideology may obscure actual relations (especially in the sense of an ideal contract). However, the legal system in itself cannot be "fiction" because it has a material existence and bodies of force ready to enforce it. The necessity of internal coherence means that the legal system becomes a site of class struggle and temporary victories can be gained here, of course these must be connected to a broader revolutionary perspective. Also the challenging of legal ideology is usually accompanied by a positive element, whereby a revolutionary class develops its own ideas of legal regulation.
Obviously so. But this does show that an 'instrumentalist' point of view, that law is solely at the service of the ruling class, is false. Although lasting change cannot be gained through legal struggle due to the necessity of internal coherence challenges can be made as the change in quantity takes place. I was *not* suggesting a peaceful transition is possible merely that a "distinction should always be made between the material transformation of the economic conditions of production, which can be determined with the precision of natural science, and the legal, political, religious, aesthetic or philosophic — in short, ideological forms in which men become conscious of this conflict and fight it out." (Marx). Also that law exists in the material sense in the forms of courts etc. and is not merely a "fiction".
Legal regulation can also increase progress from one social system to another, i.e. the superstructure can necessarily react back upon the base, although not decisively.
Have you ever read Pashukanis?
Agreed. But when I said that bourgeois laws are a work of fiction, I did not imply that they are internalyy inconsistent, simply that they do not correspond with objective reality. A set of laws (or any abstract system of law or theory) can be internally consistent and yet not be consistent with reality itself.
To a large degree a legal system develops in tandem with bourgeois relations of production and commodity development in general. I guess in a way it is correct that the legal ideology may obscure actual relations (especially in the sense of an ideal contract). However, the legal system in itself cannot be "fiction" because it has a material existence and bodies of force ready to enforce it. The necessity of internal coherence means that the legal system becomes a site of class struggle and temporary victories can be gained here, of course these must be connected to a broader revolutionary perspective. Also the challenging of legal ideology is usually accompanied by a positive element, whereby a revolutionary class develops its own ideas of legal regulation.
True, but this bourgeois 'evolution' could only proceed so far before meeting determined resistance from the entrenched feudal system, which necessitated a bourgeois revolution; the changing of the system by force. Feudalism could never spontaneously and peacefully evolve into capitalism, just as capitalism itself can never spontaneously and peacefully evolve into socialism.
Obviously so. But this does show that an 'instrumentalist' point of view, that law is solely at the service of the ruling class, is false. Although lasting change cannot be gained through legal struggle due to the necessity of internal coherence challenges can be made as the change in quantity takes place. I was *not* suggesting a peaceful transition is possible merely that a "distinction should always be made between the material transformation of the economic conditions of production, which can be determined with the precision of natural science, and the legal, political, religious, aesthetic or philosophic — in short, ideological forms in which men become conscious of this conflict and fight it out." (Marx). Also that law exists in the material sense in the forms of courts etc. and is not merely a "fiction".
Legal regulation can also increase progress from one social system to another, i.e. the superstructure can necessarily react back upon the base, although not decisively.
Have you ever read Pashukanis?