- 08 Dec 2005 21:36
#769206
This is a (long) post from my blog. Essentially I attempt to give a Marxist exposition to the notion of law (though I'm shamelessly 'standing on the shoulders of giants'):
The question as to what precisely constitutes “lawâ€, as a specific social phenomenon, is a very important one, but only within certain methodological limits. The approach I will take to this question is one that is intimately connected with Pashukanis; in fact much of what I will now say will be rooted in Pashukanis’ General Theory of Law and Marxism. Before going onto analysis proper it is necessary to note that an exposition of what law is will not necessary be massively detailed. This is because such an undertaking can only really be abstract, and is merely an analysis, the real meat of Marxian legal theory lies with examining the concrete determination of specific laws, and the methods in which particular laws come into being.- these are questions relevant to a comprehensive Marxian legal theory, but not to this particular question.
It is also important to remember that this is a Marxist analysis, and therefore there are limits to the enquiry. The methodological considerations here are that a material, dialectical and historical path must be pursued. Therefore, the point of this analysis is not to construct the “concept†of law, or develop an idea of a pure idea of law, that is constructed solely in thought. Rather one must look at law as it has been historically and materially constituted across the world, this will of course entail some “theoretical abstractionsâ€, as one must find the underlying material/social relations that give rise to law, but this is not the same thing as building a wholly abstract ideal.
Pashukanis approached this question in a very specific way; firstly, Pashukanis takes the opinion that, no matter how incorrect they are, juridical abstractions do represent some kind of objective reality. Just as bourgeois political economy can represent the truth of capitalist economy, bourgeois jurisprudence can represent the truth of law. Thus throughout any examination of the law one must bear in mind concepts like the “legal subjectâ€.
An exposition of this sort cannot remain purely descriptive, in that as one puts forward one’s own analysis one must simultaneous say why this is more correct than any other approach, thus description must also be critique. The first historical material question proposition one must put forward is an obvious one. At its most basic law is a social relation that serves to regulate conduct, thus its content will always be normative. As a beginning definition this is useful, as an indisputable foundation upon which to begin an analysis, but it clearly cannot give us a proper definition of law is.
Let us, for a second, imagine that we were to take this position, that we could define law in this way, by the fact of its normativity, Pashukanis (after his politically motivated self criticism) was to put forward a very similar position, namely that law is:
“[T]he form of regulation and consolidation of production relationships and also of other social relationships of class societyâ€.
Pashukanis, General Theory of Law and Marxism, p. 287
Whilst there is obviously still some Marxism here (in that there is a materialist explanation present), such a view, Marxist or not, does nothing to advance our understanding of law as a specific social relationship.
The problem here is that defining law purely in terms of regulation or norm giving is foolish, since there are plenty of relationships in life that are normative, morality, religion, simple rules and furthermore, from a Marxian standpoint the whole of the “superstructure†serves to regulate and consolidate social relationships, Some people (e.g. John Austin) have attempted to solve this conundrum by adding in a sovereign figure, i.e. law is normative, but issued by someone with a monopoly on legitimate violence (or simply violence). But this itself is problematic if one wishes to identify the law as a specific social relation. Designating law as purely norms backed up by state violence means that one cannot distinguish between those acts of a state which are law, and those which are just violence. State violence is often normative but this does not mean it is all “law†or even that it is all “law makingâ€. Even if one can see the historical origin of law is linked to the violence of a sovereign, such a conception does not allow us to distinguish between law and politics. Of course, some may argue that the two are one and the same (and I shall argue later that their conceptual distinctions really aren’t so big), but this would seem to fly in the face of material reality, where there is at least some semblance of a distinction.
Another approach (that taken by Alan Hunt) is to observe the “social practices†of a given historical period. From this we can gauge which of these practices is “lawâ€, this could be for example be done by looking at those regulations which were enforced in a court. To an extent this approach is of course correct, in that we cannot “construct†a definition of law, rather we must observe law in its historical movement, it is for this reason that Pashukanis assigns an importance to bourgeois jurisprudence. However, the problem with this approach is two-fold. Firstly, we cannot simply accept that what is called “law†is always law or that it contains the relations necessary to reveal its what makes it "law", we can hardly pierce the bourgeois ideological veil by simply accepting what we are told. Secondly, if one says that law is that which the courts enforce one is not that much closer to finding out what law “isâ€, and how it is constituted. For if we asked what the courts enforce, we would of course reply “the lawâ€, leading to an obvious circularity. This is not to say that we should ignore the structure of the lawsuit, because it is in fact vitally important, provided it is framed in the correct way.
Pashukanis provides away out of this maze in his General Theory of Law and Marxism. The first step is to acknowledge that law is a form of social regulation. The next step is simply to note that:
“[U]nder certain conditions the regulation of social relationships assumes a legal characterâ€.
Ibid, p. 58
At first sight this may seem to be a bit of a meaningless utterance, and Pashukanis acknowledges as such. Defining law as social regulation with a legal character does appear to be tautological. However, Pashukanis’ formulation is, in fact, a perfect example of Marxist method. Rather than pose the question as one of “logic†or “the ideal†it is a historical and material one. In history, under certain conditions a specific form of regulation arises (one with a “legal characterâ€) which we call “the lawâ€. Such an approach allows us to identify law as a specific social relationship (“the law-ness of legal relationships†as China Miéville puts it) because under certain conditions regulation acquires a legal character. Thus what makes law conceptually and historically specific is not its content, and not that it regulates or assigns norms, but that it has a different form to other forms of regulation.
Several elements can now coalesce in this definition. Firstly, it is a historical and material question, since one must observe the historical and material circumstances that allow law to differentiate itself. Furthermore, by phrasing law’s specificity as its form it allows us to examine the material structure of the law, rather than ideal definitions. Secondly, this is where bourgeois jurisprudence and the method laid out in Marx’s Grundrisse come into play. Since legal concepts reflect an actually existing, material relationship, legal categories allow us to demarcate the conceptual province of law, and this will aid in finding the underlying material relations that generate them. This is of course reminiscent of Marx’s dialectics of the abstract and concrete, abstract categories are, through material analysis, able to dialectically develop, so that we can understand the past, present and future in its concrete multiplicity. Finally, and similarly, in examining social practices one see the structure of law in its concrete functionality. If we wish to examine the “legal character†of law it is necessary to examine the structure of the court and the lawsuit, as this actualises the way in which the legal form mediates differences between individuals.
As I have already stated in order to fully understand the legal character of law it will be necessary to construct both a theoretical and historical account of the law. One cannot understand something unless one analyses its material and conceptual history. This might at first seem odd, one surely need not observe something’s history simply to understand what it is. Yet in Capital Marx does the very same thing, in Capital, Marx shows us that capitalism can only be understood historically and logically, whereby abstractions (i.e. the commodity form) grow dialectically, materially and historically into concrete systems
Therefore an analysis of the legal character of the law must be an ascent from the abstract to the concrete, in both analytical and historical terms. If one analyses the most abstract concepts of the law there is a historical convergence. The theoretical and practical existence of the law appears to be rooted in the clash of two individuals, one asserting an abstract right against the other.
This is easily seen by looking at the structure of a court scenario. Here the law, at its most visceral and practical, is seen as the clash of two subjects, mediated by some third force (the state), violence is then threatened or used against one of these participants, so as to “resolve†the dispute. This practical relation also sees it actualisation in the theoretical realm, where the concept of the individual “subject†is central. In his characteristic way Pashukanis therefore deduces that:
“[A lawsuit] elicits the form of law, the legal superstructure.â€
Ibid, p. 67
The form of law therefore, seems to be at its most basic “a person endowed with a right and actively asserting it†(ibid p. 72), the fact that “a person†is “actively asserting [a right]†implies the presence of a second subject, hence a legal form. From a simple observation of the operation of the law in society and the abstract categories of bourgeois jurisprudence one can begin to develop the “legal character†of law, that which differentiates it from all other social regulation. But in order to explain the law simply asserting this is not enough. Now that a basic but at the same time “pure†legal character has been developed it is possible to examine the development of such a character in history (“the anatomy of man contains the key to the anatomy of the apeâ€), and the material origin of this.
Understanding that which constitutes a legal character allows us to trace the historical emergence of such a character, and therefore the social relations that generated it. If we look at the legal form, two subjects, each asserting their rights and unified only in this bond there is an obvious capitalist social relation that bears similarity. Namely the commodity form, here, again, two subjects – as mediated through a relation – with opposed interests (buy low/sell high). There is an immediate homology between the two, yet the connection is deeper.
Historically we see the first tentative elaborations of “law†as an independent form of regulation in Rome. Now such regulation was certainly not binding on all people (and this in itself is an argument for the theory Pashukanis puts forward) but the legal form was certainly present. Rome was the first society in which commodity production took on a large role, and therefore this adds some credence to the connection between the commodity form and the legal form. As Marx puts it in the Grundrisse:
“In Roman law, the servus is therefore correctly defined as one who may not enter into exchange for the purpose of acquiring anything for himself (see the Institutes). It is, consequently, equally clear that although this legal system corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of the juridical person, precisely of the individual engaged in exchange, and thus anticipate (in its basic aspects) the legal relations of industrial society, and in particular the right which rising bourgeois society had necessarily to assert against medieval society.â€
Karl Marx (1973), The Grundrisse, London: Penguin, p. 245
Aside from the simple homology between law and the commodity, there is a deeper material connection between the two. In a very real sense the commodity form is what gives birth to the legal form, and serves as its concrete foundation. Inherent in the commodity form there is an acute conflict of interest; the buyer and the seller, no matter what we are told, have mutually opposed interests, dispute is the defining factor of the commodity. Aside from the simple clash of interests (in terms of exchange values) there is another essential conflictual relation imbedded in the notion of commodity ownership:
“Violence – coercion – is at the heart of the commodity form. For a commodity meaningfully to be ‘mine-not-yours’ – which is, after all, central to the fact that it is a commodity that will be exchanged – some forceful capabilities must be implied. If there were nothing to defend its ‘mine-ness’, there would be nothing to stop it becoming ‘yours’. Coercion is implicit.â€
China Mieville, “The Commodity Form Theory of International Lawâ€
Coercion and dispute do not always remain implicit; they were frequently actualised in trade. It is at this point that law, in its embryonic form, comes into being. In order curb the dispute violence is necessary; the violence inherent in the commodity form is therefore actualised as law, in the legal form. The contract, the central legal relation in all societies, is the direct actualisation of such conflict and violence; it is in this way that Walter Benjamin’s thoughts on the contract form acquire real significance. Benjamin and Pashukanis show the link between the violence in the commodity form and the violence that is the law. This is the manner in which the “lawsuit elicits lawâ€; the conflict of interest is that which requires violence. Of course, this flies in the face of much convention wisdom, in that, at this point the state has not even been mentioned. Pashukanis instead seems to be concentrating on “subjective†rights, as against objective ones.
Of course the fact is that the violence needed to regulate such an interest is much more efficient when it is the violence of a third party (which is how Pashukanis derives the state – an approach I do not necessarily approve of). However, the fact is that what we are observing here are the material origins of law, that such violence is eventually regulated by the state does not change its historical origins. Furthermore, reasoning in this manner Pashukanis is able to stay faithful to the materialist thesis that the state is determined by civil society, particularly in its formation. Therefore one must observe the beginnings of “objective†law in “subjective†law.
Pashukanis brilliantly observes this movement in his General Theory:
“[T]he legal subject with the sphere of legal domination expanding around him was morphologically preceded by the armed individual or, more often, group of people, clan, horde, tribe, capable in a dispute or a battle of defending that which was the condition of their existence.â€
E.B. Pashkanis, op. cit., p. 80
The embryonic origins of the legal form have therefore been posited. However, this is not sufficient to fully explain the law. It must now be shown, historically, how the law is fully realised and how law comes to regulate more and more social relations. Although the duel and the dispute embody the legal form in its beginning stage they do not yet exist as law in its modern sense. The legal form, as it exists to day, is general in form, and posits abstract legal subjects; therefore it is necessary to examine how this generality comes about.
Therefore the next entry will entail describing the growth of the legal character into its more “pure†form, and a historical account of how this legal character comes to regulate other social relations.
Thus far I have outlined the historical origins of the law’s “legal characterâ€, in its most basic form, yet embodied concretely (a concrete universal as Ilyenkov might put it). But this is not sufficient in outlining the legal character, as although the basic form has been outlined, one must still account for the law’s general character. Both bourgeois legal theory and the law as embodied in daily practice do not simply posit opposed subjects. The legal subject is seen as an abstract subject, divorced from a particular context and bears abstract rights, as asserted against another abstract subject. This is why laws are always framed in general terms, and confer general rights (even if in specific contexts).
According to Pashukanis this development does not fully occur until the advent of bourgeois society. The legal subject only becomes fully abstract with the development of exchange value and the commodification of human labour.
“In the same way that the natural multiplicity of the useful qualities of a product is in a commodity a simple mask of its value, while the concrete species of human labour are dissolved into abstract human labour as the creator of value so the concrete multiplicity of man's relationship to an object appears as the abstract will of the owner, while all the concrete peculiarities, which distinguish one representative of the species Homo sapiens from another, are dissolved into the abstraction of man in general as a legal subject.â€
Ibid., p. 76
Capitalism, as a social system, has a distinctly homogenising tendency. Capitalist production tends to reduce all labour into simple, measurable “parts†(e.g. the assembly line), and all commodities become ultimately defined by one quality their exchange value (i.e. money). This tendency is reproduced in the legal sphere, which, as it expands to embrace more and more people, is necessarily divorced from particular concrete circumstances. This transformation is linked with the process I will describe below, as one can only understand the generality of law if one understands its universality.
The problem with Pashukanis’ conception of the legal form is that, in its purest state, it is only applicable to those disputes as arising from the commodity form, that is to say, property and contract law. Obviously this cannot be right; the law is a form of social regulation is all pervasive in modern society. Therefore it is necessary to historically outline how the law comes to regulate other aspects of social life.
As I have outlined, the legal form is generated by the commodity form. Therefore in those societies where there was commodity exchange the legal form would regulate disputes arising from exchange, this must be remembered as an ever present feature. There are two interlinked factors that allow for the rise of the legal form, one political and one economic, both of which working in reciprocal determination.
In societies prior to capitalism one’s position in the socio-economic order was determined by status. This meant that in any dispute there would be a command, and then someone would obey. Customary or hereditary hierarchical relations determined how things worked and disputes were resolved in this manner. Although law did exist it was confined to narrow limits and confused with a series of other social regulators.
However, in the move to capitalism such status was seen as a hindrance to commodity production. For, formally at least, capitalism is based on equality in the market. Since, historically, customary privilege had been largely economic it was necessary to remove it, so as to create the market. Therefore the bourgeoisie, at its birth, carried out a struggle against such privilege.
Simultaneously with this the commodity form, as the ‘unit’ of capitalism, gains more andmore prominence. Commodity exchange, as has already been discussed posits individuals as formally equal in the economic sphere, whilst simultaneously generating the legal form, and therefore legal subjects. As capitalism begins to constitute itself, the modern working class is created, and labour becomes a commodity. What this means is that as hierarchical societies are destroyed all people become commodity owners.
Therefore all people are, in one area or another, legal subjects, yet this is still simply confined to disputes arising from commodity exchange. And here the link to the disintegration of feudalism rears its head. Dispute can no longer be coordinated by custom, since such regulation is positively antithetical to the market. The specifity of the commodity form and the legal form, combined with the collapse of custom means a combination of social regulation would be incoherent.
But how is it that the legal form comes to regulate these other disputes. As I have already said, at this point people, as commodity owners are already constituted as legal subjects, in terms of commodity exchange. Therefore, the legal form begins to shape other disputes too. Since it already exists, and since bourgeois society has a fragmenting tendency it is only logical that it come to regulate all social grievance (where there is a vacuum). Thus people, in all disputes, are interpelllated as legal subjects, abstract commodity owners asserting their rights. Legal subjects therefore are not simply recognised as such since they are commodity owners, otherwise only commodity disputes. Rather, they are interpellated as legal subjects, in part because they are commodity owners, the existence of the commodity form obviously generates the legal form, but it is only with the collapse of hereditary customs that the legal form comes to interpellate all as legal subjects, even in those areas unconnected from exchange.
As more and more people are rendered as legal subjects, until all are, it is obvious where the abstract character of law arises. Since everyone is a legal subject any concrete differences must be obliterated so that the legal form can provide a form of regulation.
Such an examination of course raises problems. Firstly, the example used here is the transition from feudalism to capitalism, which begs the question as to why there were legal systems in slave and feudal societies. Obviously, the legal form had already been generated by the commodity, yet one must still explain why other aspects of life had come to be regulated by it. The first point to make is that there were a number of people who were commodity owners, and so were interpellated as legal subjects. Most people who could own commodities were equal in status, and so customary duties would not serve to regulate. Therefore, on a small scale legal relations did exist (remembering that many people were not recognised as legal persons). Yet in this period the law was much less ‘pure’ and ‘abstract’, instead being ‘mixed up’ with other forms of regulations, and tied very specifically to certain situations. Furthermore, the legal subject was not abstract, in that it was typically a Roman citizen who was a paterfamilias. Finally, the fullest Roman law was that which was related to commerce and exchange.
Any thoughts?
The question as to what precisely constitutes “lawâ€, as a specific social phenomenon, is a very important one, but only within certain methodological limits. The approach I will take to this question is one that is intimately connected with Pashukanis; in fact much of what I will now say will be rooted in Pashukanis’ General Theory of Law and Marxism. Before going onto analysis proper it is necessary to note that an exposition of what law is will not necessary be massively detailed. This is because such an undertaking can only really be abstract, and is merely an analysis, the real meat of Marxian legal theory lies with examining the concrete determination of specific laws, and the methods in which particular laws come into being.- these are questions relevant to a comprehensive Marxian legal theory, but not to this particular question.
It is also important to remember that this is a Marxist analysis, and therefore there are limits to the enquiry. The methodological considerations here are that a material, dialectical and historical path must be pursued. Therefore, the point of this analysis is not to construct the “concept†of law, or develop an idea of a pure idea of law, that is constructed solely in thought. Rather one must look at law as it has been historically and materially constituted across the world, this will of course entail some “theoretical abstractionsâ€, as one must find the underlying material/social relations that give rise to law, but this is not the same thing as building a wholly abstract ideal.
Pashukanis approached this question in a very specific way; firstly, Pashukanis takes the opinion that, no matter how incorrect they are, juridical abstractions do represent some kind of objective reality. Just as bourgeois political economy can represent the truth of capitalist economy, bourgeois jurisprudence can represent the truth of law. Thus throughout any examination of the law one must bear in mind concepts like the “legal subjectâ€.
An exposition of this sort cannot remain purely descriptive, in that as one puts forward one’s own analysis one must simultaneous say why this is more correct than any other approach, thus description must also be critique. The first historical material question proposition one must put forward is an obvious one. At its most basic law is a social relation that serves to regulate conduct, thus its content will always be normative. As a beginning definition this is useful, as an indisputable foundation upon which to begin an analysis, but it clearly cannot give us a proper definition of law is.
Let us, for a second, imagine that we were to take this position, that we could define law in this way, by the fact of its normativity, Pashukanis (after his politically motivated self criticism) was to put forward a very similar position, namely that law is:
“[T]he form of regulation and consolidation of production relationships and also of other social relationships of class societyâ€.
Pashukanis, General Theory of Law and Marxism, p. 287
Whilst there is obviously still some Marxism here (in that there is a materialist explanation present), such a view, Marxist or not, does nothing to advance our understanding of law as a specific social relationship.
The problem here is that defining law purely in terms of regulation or norm giving is foolish, since there are plenty of relationships in life that are normative, morality, religion, simple rules and furthermore, from a Marxian standpoint the whole of the “superstructure†serves to regulate and consolidate social relationships, Some people (e.g. John Austin) have attempted to solve this conundrum by adding in a sovereign figure, i.e. law is normative, but issued by someone with a monopoly on legitimate violence (or simply violence). But this itself is problematic if one wishes to identify the law as a specific social relation. Designating law as purely norms backed up by state violence means that one cannot distinguish between those acts of a state which are law, and those which are just violence. State violence is often normative but this does not mean it is all “law†or even that it is all “law makingâ€. Even if one can see the historical origin of law is linked to the violence of a sovereign, such a conception does not allow us to distinguish between law and politics. Of course, some may argue that the two are one and the same (and I shall argue later that their conceptual distinctions really aren’t so big), but this would seem to fly in the face of material reality, where there is at least some semblance of a distinction.
Another approach (that taken by Alan Hunt) is to observe the “social practices†of a given historical period. From this we can gauge which of these practices is “lawâ€, this could be for example be done by looking at those regulations which were enforced in a court. To an extent this approach is of course correct, in that we cannot “construct†a definition of law, rather we must observe law in its historical movement, it is for this reason that Pashukanis assigns an importance to bourgeois jurisprudence. However, the problem with this approach is two-fold. Firstly, we cannot simply accept that what is called “law†is always law or that it contains the relations necessary to reveal its what makes it "law", we can hardly pierce the bourgeois ideological veil by simply accepting what we are told. Secondly, if one says that law is that which the courts enforce one is not that much closer to finding out what law “isâ€, and how it is constituted. For if we asked what the courts enforce, we would of course reply “the lawâ€, leading to an obvious circularity. This is not to say that we should ignore the structure of the lawsuit, because it is in fact vitally important, provided it is framed in the correct way.
Pashukanis provides away out of this maze in his General Theory of Law and Marxism. The first step is to acknowledge that law is a form of social regulation. The next step is simply to note that:
“[U]nder certain conditions the regulation of social relationships assumes a legal characterâ€.
Ibid, p. 58
At first sight this may seem to be a bit of a meaningless utterance, and Pashukanis acknowledges as such. Defining law as social regulation with a legal character does appear to be tautological. However, Pashukanis’ formulation is, in fact, a perfect example of Marxist method. Rather than pose the question as one of “logic†or “the ideal†it is a historical and material one. In history, under certain conditions a specific form of regulation arises (one with a “legal characterâ€) which we call “the lawâ€. Such an approach allows us to identify law as a specific social relationship (“the law-ness of legal relationships†as China Miéville puts it) because under certain conditions regulation acquires a legal character. Thus what makes law conceptually and historically specific is not its content, and not that it regulates or assigns norms, but that it has a different form to other forms of regulation.
Several elements can now coalesce in this definition. Firstly, it is a historical and material question, since one must observe the historical and material circumstances that allow law to differentiate itself. Furthermore, by phrasing law’s specificity as its form it allows us to examine the material structure of the law, rather than ideal definitions. Secondly, this is where bourgeois jurisprudence and the method laid out in Marx’s Grundrisse come into play. Since legal concepts reflect an actually existing, material relationship, legal categories allow us to demarcate the conceptual province of law, and this will aid in finding the underlying material relations that generate them. This is of course reminiscent of Marx’s dialectics of the abstract and concrete, abstract categories are, through material analysis, able to dialectically develop, so that we can understand the past, present and future in its concrete multiplicity. Finally, and similarly, in examining social practices one see the structure of law in its concrete functionality. If we wish to examine the “legal character†of law it is necessary to examine the structure of the court and the lawsuit, as this actualises the way in which the legal form mediates differences between individuals.
As I have already stated in order to fully understand the legal character of law it will be necessary to construct both a theoretical and historical account of the law. One cannot understand something unless one analyses its material and conceptual history. This might at first seem odd, one surely need not observe something’s history simply to understand what it is. Yet in Capital Marx does the very same thing, in Capital, Marx shows us that capitalism can only be understood historically and logically, whereby abstractions (i.e. the commodity form) grow dialectically, materially and historically into concrete systems
Therefore an analysis of the legal character of the law must be an ascent from the abstract to the concrete, in both analytical and historical terms. If one analyses the most abstract concepts of the law there is a historical convergence. The theoretical and practical existence of the law appears to be rooted in the clash of two individuals, one asserting an abstract right against the other.
This is easily seen by looking at the structure of a court scenario. Here the law, at its most visceral and practical, is seen as the clash of two subjects, mediated by some third force (the state), violence is then threatened or used against one of these participants, so as to “resolve†the dispute. This practical relation also sees it actualisation in the theoretical realm, where the concept of the individual “subject†is central. In his characteristic way Pashukanis therefore deduces that:
“[A lawsuit] elicits the form of law, the legal superstructure.â€
Ibid, p. 67
The form of law therefore, seems to be at its most basic “a person endowed with a right and actively asserting it†(ibid p. 72), the fact that “a person†is “actively asserting [a right]†implies the presence of a second subject, hence a legal form. From a simple observation of the operation of the law in society and the abstract categories of bourgeois jurisprudence one can begin to develop the “legal character†of law, that which differentiates it from all other social regulation. But in order to explain the law simply asserting this is not enough. Now that a basic but at the same time “pure†legal character has been developed it is possible to examine the development of such a character in history (“the anatomy of man contains the key to the anatomy of the apeâ€), and the material origin of this.
Understanding that which constitutes a legal character allows us to trace the historical emergence of such a character, and therefore the social relations that generated it. If we look at the legal form, two subjects, each asserting their rights and unified only in this bond there is an obvious capitalist social relation that bears similarity. Namely the commodity form, here, again, two subjects – as mediated through a relation – with opposed interests (buy low/sell high). There is an immediate homology between the two, yet the connection is deeper.
Historically we see the first tentative elaborations of “law†as an independent form of regulation in Rome. Now such regulation was certainly not binding on all people (and this in itself is an argument for the theory Pashukanis puts forward) but the legal form was certainly present. Rome was the first society in which commodity production took on a large role, and therefore this adds some credence to the connection between the commodity form and the legal form. As Marx puts it in the Grundrisse:
“In Roman law, the servus is therefore correctly defined as one who may not enter into exchange for the purpose of acquiring anything for himself (see the Institutes). It is, consequently, equally clear that although this legal system corresponds to a social state in which exchange was by no means developed, nevertheless, in so far as it was developed in a limited sphere, it was able to develop the attributes of the juridical person, precisely of the individual engaged in exchange, and thus anticipate (in its basic aspects) the legal relations of industrial society, and in particular the right which rising bourgeois society had necessarily to assert against medieval society.â€
Karl Marx (1973), The Grundrisse, London: Penguin, p. 245
Aside from the simple homology between law and the commodity, there is a deeper material connection between the two. In a very real sense the commodity form is what gives birth to the legal form, and serves as its concrete foundation. Inherent in the commodity form there is an acute conflict of interest; the buyer and the seller, no matter what we are told, have mutually opposed interests, dispute is the defining factor of the commodity. Aside from the simple clash of interests (in terms of exchange values) there is another essential conflictual relation imbedded in the notion of commodity ownership:
“Violence – coercion – is at the heart of the commodity form. For a commodity meaningfully to be ‘mine-not-yours’ – which is, after all, central to the fact that it is a commodity that will be exchanged – some forceful capabilities must be implied. If there were nothing to defend its ‘mine-ness’, there would be nothing to stop it becoming ‘yours’. Coercion is implicit.â€
China Mieville, “The Commodity Form Theory of International Lawâ€
Coercion and dispute do not always remain implicit; they were frequently actualised in trade. It is at this point that law, in its embryonic form, comes into being. In order curb the dispute violence is necessary; the violence inherent in the commodity form is therefore actualised as law, in the legal form. The contract, the central legal relation in all societies, is the direct actualisation of such conflict and violence; it is in this way that Walter Benjamin’s thoughts on the contract form acquire real significance. Benjamin and Pashukanis show the link between the violence in the commodity form and the violence that is the law. This is the manner in which the “lawsuit elicits lawâ€; the conflict of interest is that which requires violence. Of course, this flies in the face of much convention wisdom, in that, at this point the state has not even been mentioned. Pashukanis instead seems to be concentrating on “subjective†rights, as against objective ones.
Of course the fact is that the violence needed to regulate such an interest is much more efficient when it is the violence of a third party (which is how Pashukanis derives the state – an approach I do not necessarily approve of). However, the fact is that what we are observing here are the material origins of law, that such violence is eventually regulated by the state does not change its historical origins. Furthermore, reasoning in this manner Pashukanis is able to stay faithful to the materialist thesis that the state is determined by civil society, particularly in its formation. Therefore one must observe the beginnings of “objective†law in “subjective†law.
Pashukanis brilliantly observes this movement in his General Theory:
“[T]he legal subject with the sphere of legal domination expanding around him was morphologically preceded by the armed individual or, more often, group of people, clan, horde, tribe, capable in a dispute or a battle of defending that which was the condition of their existence.â€
E.B. Pashkanis, op. cit., p. 80
The embryonic origins of the legal form have therefore been posited. However, this is not sufficient to fully explain the law. It must now be shown, historically, how the law is fully realised and how law comes to regulate more and more social relations. Although the duel and the dispute embody the legal form in its beginning stage they do not yet exist as law in its modern sense. The legal form, as it exists to day, is general in form, and posits abstract legal subjects; therefore it is necessary to examine how this generality comes about.
Therefore the next entry will entail describing the growth of the legal character into its more “pure†form, and a historical account of how this legal character comes to regulate other social relations.
Thus far I have outlined the historical origins of the law’s “legal characterâ€, in its most basic form, yet embodied concretely (a concrete universal as Ilyenkov might put it). But this is not sufficient in outlining the legal character, as although the basic form has been outlined, one must still account for the law’s general character. Both bourgeois legal theory and the law as embodied in daily practice do not simply posit opposed subjects. The legal subject is seen as an abstract subject, divorced from a particular context and bears abstract rights, as asserted against another abstract subject. This is why laws are always framed in general terms, and confer general rights (even if in specific contexts).
According to Pashukanis this development does not fully occur until the advent of bourgeois society. The legal subject only becomes fully abstract with the development of exchange value and the commodification of human labour.
“In the same way that the natural multiplicity of the useful qualities of a product is in a commodity a simple mask of its value, while the concrete species of human labour are dissolved into abstract human labour as the creator of value so the concrete multiplicity of man's relationship to an object appears as the abstract will of the owner, while all the concrete peculiarities, which distinguish one representative of the species Homo sapiens from another, are dissolved into the abstraction of man in general as a legal subject.â€
Ibid., p. 76
Capitalism, as a social system, has a distinctly homogenising tendency. Capitalist production tends to reduce all labour into simple, measurable “parts†(e.g. the assembly line), and all commodities become ultimately defined by one quality their exchange value (i.e. money). This tendency is reproduced in the legal sphere, which, as it expands to embrace more and more people, is necessarily divorced from particular concrete circumstances. This transformation is linked with the process I will describe below, as one can only understand the generality of law if one understands its universality.
The problem with Pashukanis’ conception of the legal form is that, in its purest state, it is only applicable to those disputes as arising from the commodity form, that is to say, property and contract law. Obviously this cannot be right; the law is a form of social regulation is all pervasive in modern society. Therefore it is necessary to historically outline how the law comes to regulate other aspects of social life.
As I have outlined, the legal form is generated by the commodity form. Therefore in those societies where there was commodity exchange the legal form would regulate disputes arising from exchange, this must be remembered as an ever present feature. There are two interlinked factors that allow for the rise of the legal form, one political and one economic, both of which working in reciprocal determination.
In societies prior to capitalism one’s position in the socio-economic order was determined by status. This meant that in any dispute there would be a command, and then someone would obey. Customary or hereditary hierarchical relations determined how things worked and disputes were resolved in this manner. Although law did exist it was confined to narrow limits and confused with a series of other social regulators.
However, in the move to capitalism such status was seen as a hindrance to commodity production. For, formally at least, capitalism is based on equality in the market. Since, historically, customary privilege had been largely economic it was necessary to remove it, so as to create the market. Therefore the bourgeoisie, at its birth, carried out a struggle against such privilege.
Simultaneously with this the commodity form, as the ‘unit’ of capitalism, gains more andmore prominence. Commodity exchange, as has already been discussed posits individuals as formally equal in the economic sphere, whilst simultaneously generating the legal form, and therefore legal subjects. As capitalism begins to constitute itself, the modern working class is created, and labour becomes a commodity. What this means is that as hierarchical societies are destroyed all people become commodity owners.
Therefore all people are, in one area or another, legal subjects, yet this is still simply confined to disputes arising from commodity exchange. And here the link to the disintegration of feudalism rears its head. Dispute can no longer be coordinated by custom, since such regulation is positively antithetical to the market. The specifity of the commodity form and the legal form, combined with the collapse of custom means a combination of social regulation would be incoherent.
But how is it that the legal form comes to regulate these other disputes. As I have already said, at this point people, as commodity owners are already constituted as legal subjects, in terms of commodity exchange. Therefore, the legal form begins to shape other disputes too. Since it already exists, and since bourgeois society has a fragmenting tendency it is only logical that it come to regulate all social grievance (where there is a vacuum). Thus people, in all disputes, are interpelllated as legal subjects, abstract commodity owners asserting their rights. Legal subjects therefore are not simply recognised as such since they are commodity owners, otherwise only commodity disputes. Rather, they are interpellated as legal subjects, in part because they are commodity owners, the existence of the commodity form obviously generates the legal form, but it is only with the collapse of hereditary customs that the legal form comes to interpellate all as legal subjects, even in those areas unconnected from exchange.
As more and more people are rendered as legal subjects, until all are, it is obvious where the abstract character of law arises. Since everyone is a legal subject any concrete differences must be obliterated so that the legal form can provide a form of regulation.
Such an examination of course raises problems. Firstly, the example used here is the transition from feudalism to capitalism, which begs the question as to why there were legal systems in slave and feudal societies. Obviously, the legal form had already been generated by the commodity, yet one must still explain why other aspects of life had come to be regulated by it. The first point to make is that there were a number of people who were commodity owners, and so were interpellated as legal subjects. Most people who could own commodities were equal in status, and so customary duties would not serve to regulate. Therefore, on a small scale legal relations did exist (remembering that many people were not recognised as legal persons). Yet in this period the law was much less ‘pure’ and ‘abstract’, instead being ‘mixed up’ with other forms of regulations, and tied very specifically to certain situations. Furthermore, the legal subject was not abstract, in that it was typically a Roman citizen who was a paterfamilias. Finally, the fullest Roman law was that which was related to commerce and exchange.
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