The simplest definitions of law tend to frame it as a set of rules or norms. There is disagreement about whether or not these rules must be enforced (often by a sovereign) or merely assented to. Marxist interpretations of law tend toward the former (coercion) and often explain legal institutions as an effect or aspect of class struggle. For example, law is necessary to uphold the division of labor, or it is a component of exchange relationships between formally equal owners of property.
Yet, there are many characteristics of law that all of these renderings disregard. It is true that all societies must be governed by rules and norms in order to function, and these may be enforced via individual or collective action. The “rule/norm” definition cannot account for the specificity of modern legal institutions. Similarly, in any society exchange plays a pivotal role in structuring social relations and supporting the division of labor. To simply say that law derives from exchange once again precludes an understanding of distinctly modern social formations. Finally, it is analytically crude to argue that law arises from class struggle, without attempting to describe and explain the manifold ways in which legal institutions have taken on a life of their own, in dialectical relation to political-economic realities.
It is precisely the concept of the dialectic that is absent from many Marxist analyses, though some may pay it lip service. There is a tendency among Marxists to reduce ideological, discursive, and bureaucratic realities to the status of handmaidens of the primary mode of production. However, Marx was quite clear in his discussion of the dialectic that the former elements achieve a certain degree of independence from the material economic order (the “base”), often following their own logics of development and commanding just as much influence over material production as the reverse. What this means is that ideas, discourses, even complex social institutions, may exist in tension with economic necessities. Granted, dominant economic interests will attempt to strategically deploy ideas and discourses, and shape institutions, in ways that are personally beneficial. However, ideas and discourses are appropriated and employed toward a diversity of ends as they circulate, some of which may challenge the social order; and positions within institutions are occupied by a variety of people with different outlooks, abilities, habits, and aspirations.
Hence, it is entirely too simplistic to conclude that law is an effect of class struggle. Law is a way of thinking, talking, and framing events that can be used by anyone (lawyers, judges, politicians, citizens, etc.) for almost any purpose. Many people who employ legal discourses hold an earnest belief in its inherent validity (a “natural law” interpretation). Thus, certain interpretations of the law may influence decision-making even when it runs counter to personal goals. Law cannot be reduced to politics or individual will back by force. It is true that the same legal discourses may be used by people with entirely different political-economic perspectives, and to support widely divergent social aims. But one must not stop there.
Law is not an empty container which can be filled with any kind of “content” whatsoever. Analyses that privilege legal “forms” ignore the significance of particular concepts and discursive themes, such as “human rights,” “equality,” “liberty” and “cruelty.” A critical examination of the modern phenomenon of “law” must begin here. This investigation must include some attention to the centrality of evidence, documentation, and intentionality, as well as the ways in which all of these are tied to a positivist discourse that dominates other realms of modern society.
But one must go further still. It is often noted in passing that the enforcement of law necessitates a sovereign state. This raises a potentially interesting problem (always ignored) as the state is not a concrete, unified object. What elements of our idea of the “state” are actually necessary for the functioning of law? Definitions of the state that focus on territory, in particular, are not able to address the fundamental questions of citizenship that underlie the concept of “rights.”
Finally, there is the question of violence. I agree with those who insist that violence is a necessary and inherent component of law. But what kind of violence, and under what circumstances?
I hope to at least address all of these questions in my next series of posts.
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