Which theorist/theory of the emergence and role of law best explains law's character and role today?

Are there current events, which help illustrate the theorists' claims about how law develops?

selves and their labor power. One might think that this would mean pay- breaks in between. Marx (1967) quoted from government reports, stating ing workers a sustainable wage and not working them to death-this is, that "An additional hour a day gained by small installments before 6 a.m., 80 Chapter 3 Law, Class Conflict, and the Economy 81 after 6 p.m., and at the beginning and end of the times nominally fixed for that only the most successful factory owners could afford, the Factory meals, is nearly equivalent to working [the laborers] 13 months in the Acts "hasten[ed] on the decline of the small masters, and the concentra- year" (p. 241). In short, regulation begat more subtle abuses, which raised tion of capital" (1967:477). Moreover, by encouraging capitalism to recog- the ire of the concerned public and called forth another round of regula- nize the "fundamental law of production" that workers work best when tion. Furthermore, when only large firms wer their abilities are cultivated rather than pillaged, the Factory Acts antici- their owners often demanded that their s pated a wholly transformed and nonalienative system of labor and social well, to avoid giving them an unfair advantage. Marx (1967) quoted a relations that would be brought to fruition only when capitalism itself is report about the owner of one large firm who, forced to limit the hours destroyed (Marx 1967:487-90). during which his machines were operating, "always felt restless at night, when he had closed his place, lest others should be working later than him By maturing the material conditions, and the combination on a social scale and getting away his orders" (p. 491). of the processes of production, [regulati tion] matures the contradictions an In Marx's analysis, this two-part causal argument is interwoven with a antagonisms of the capitalist form of production, and thereby provides along with the elements for the format more problematic functional argument, one that associates the passa society, the forces for exploding the old one. (1967:503) the Factory Acts with the needs a imperatives of the capitalist system The core of this argument is that regulation forced industry to become We can deal fairly summarily with Marx's functional argument. Marx more intensively mechanized and more rational in the way it organizes was more aware than most that one can't explain an event by its con- labor. In general, the introduction of machines opened up new opportuni- sequences. Thus, we cannot explain the Factory Acts in terms of their ties for productivity and profit by encouraging the concentration of work expected role in strengthening industry or bringing about the ultimate under one roof and the division of labor into discrete tasks; it also reduced demise of capitalism. Of course, it is perfectly legitimate to explain an the need for skilled lab ted this shift event in terms of the hopes and expect This industrial revolution which takes place spontaneously, is artificially argue, for example, that helped on the extension of the Factory Acts to all industries in which their revolutionary po women, young persons and children are employed. The compulsory regula- them because they would help to ratio tion of the working-day as regards its length, pauses, beginning and end, deal with the workers' side of the the system of relays of children, the exclusion of all children under a certain point out that Marx makes it quite clear age, . . . necessitate on the one hand more machinery and the substitution of factory owners fought regulation persistently, a steam as a motive power in place of s. (Marx 1967:474-75) inevitable in their particular industries d This first occurred in the weaving industry, but also in industries such as more "enlightened" approach to labor r pottery, baking, and dyeing where, it was thought, artificial starts and the political economists saw any pos ion, and even stops in the workday would interfere with the naturally continuous working-class advocates rarely spoke of cial to indus- nature of the production process. Marx mentioned as an example the try (Cross 1989:35). Probably, Marx did nal argu- match industry, where ment to be a serious social scientific explanation of factory regulation. It is probably more useful to see it as an example of Marxian praxis at work: it was thought to be an indispensable requirement, that boys, even while Marx was trying to convince his readers that factory reform is important bolting their dinner, should go on dipping the matches in melted phospho- and deserving of working-class support-not only because it would rous, the poisonous vapour from which rose into their faces. The Factory improve conditions in the short run but ould blaze a trail Act (1864) made the saving of time a necessity, and so forced into existence toward a more equitable society. a dipping machine, the vapour from which could not come in contact with the workers. (1967:476) Marx's causal account of factory legislation rests on three assump- tions, some explicit and some more implicit. One is that, in nineter Regulation encouraged not only technical innovation but also the growth century Britain, there were only two classes worth taking into account of monopoly capitalism. Because innovation required capital investments the industrial bourgeoisie and the proletariat. Second, it is assumed that 82 Chapter 3 Law, Class Conflict, and the Economy 83 members of these opposing groups saw their own economic interests treated as common criminals. Perhaps most important, they worried fairly clearly, and their positions on factory regulation reflected these that factory reform would open the door to greater influence and politi- interests: Factory owners opposed regulation because they profited by cal participation by workers. the unfettered exploitation of labor, and workers hoped that regulation 2. Tory conservatives supported the Factory Acts and at times forged would shelter them from oppressive working conditions. Third, the Fac- powerful alliances with workers' movements, but not out of any de- tory Acts themselves are thus best understood as inst mental solutions- sire to strengthen the political hand of the proletariat. Rather, as repre- albeit only partial ones-to the problem of class conflict. Class is an ante- sentatives of the landed gentry, Tories were worried about the cedent factor in this model; Marx takes the gradual shortening of the disintegrative effects of industrialism. Their support for shorter hours working day and the strengthening of safety rules as evidence of the reflected both their hatred of Whig comme ism and an anxiety growing power of the workers. about their own declining political and soc All three of these assumptions are questionable, and by discussing 3. The Tories were allied with a network of middle-class humanitarian them briefly, we can suggest the outlines of a more historically satisfy- ing account of British factory legislation. First, Marx's two-class model reformers who took a distinctly pate approach to the prob- presents a static and grossly oversimplified image of class relations in ems of the working-class family. They sup orted factory legislation, nineteenth-century Britain. Contemporary social historians, while still specially limitations on the labor of women and children and re quirements for the education of young workers, as a means of increase strongly influenced by Marx's vision, tend to argue that class lines during this period were in a state of flux. The settled class hierarchy of the eigh- ing state control over the domestic sphere. teenth century, dominated by the rural aristocracy, had broken down 1. Finally, the workers themselves were by no means united. In general, under the pressure of industrialization; the new regime, in which big capi- workers were not motivated by nostalgia for rural village life, and tal and organized labor became the dominant antagonists, had not yet they saw nothing wrong with women and children working in facto- taken shape. The nineteenth century was thus an interregnum during ries. Indeed, some favored regulation of work schedules so that chil- which class in the narrow economic sense competed with a number of dren could assist their parents on the factory floor, and some workers other factors-status based on kinship, occupation I networks, political were opposed to compulsory schooling because it would take away loyalties, gender, religion, and urban-rural difference -in determining from the time children might spend earning money. For the Chartist people's identities and strategies of social action.? movement, short-time legislation represe i Gjust as the liberals Thus, second, political debates over the Factory Acts reveal a bewil- feared) a recognition of workers' rights, and a step on the way toward dering array of alliances and conflicts that cut across class lines, making it the larger goal of universal manhood suffrage. But the Chartists repre- difficult to assume that actors were motivated primarily by a clear per- sented the extreme of working-class opinion, not its mainstream, and ception of their economic interests. At least four separate groups were in any event the movement had pretty much come apart by around involved: 1850, the point at which the most effective factory legislation began to appear. 1. Within Parliament, the major opponents of regulation were the liberals As if this were not complicated enough, religion entered the mix as in the Whig Party, many of whom were factory owners, But not all well. Many of the Whigs were religious "nonconformists" (Le., Method- industrialists were opposed to improving working conditions. Some of ists) who chafed under the official dominance of the Anglican church. the most prominent owners had instituted work-time and safety Engels (1968:196-97) reported that they sabotaged factory legislation con- reforms in their own mills as early as 1830, and they self-righteously sidered in 1843 because it proposed that schools for factory children criticized owners of smaller factories for their heedless exploitation should be supervised by Anglican clergy. Nonconformism appealed to of children. However, the Whigs came together to oppose the Factory many workers as well, however, and they too were divided on this issue." Acts for a number of reasons. They resisted, in principle, the idea of With these complications in mind, Marx's third assu -that the government regulation. They also resented the idea, explicit in early Factory Acts can be explained primarily in terms of the class interests of reform proposals, that mill owners who violated regulations should be capitalists and workers-just doesn't hold water. As Carson (1974b) has 84 Chapter 3 Law, Class Conflict, and the Economy 85 argued, debates over factory reform must be understood in symbolic problems and enforce laws provides an important supplement to Marxian terms as well, for the cultural baggage they carried and the meanings they accounts based solely on class. implied for a broad range of apparently separate issues. This is not simply to say that discourse concerning factory reform was too muddy for the participants, or later researchers, to trace out sharply the underlying issues of class conflict. I am arguing, more fundamentally, that Marx was Beyond the Classical Marxian Model wrong to say that class was entirely antecedent to the Factory Acts; rather, Although Marx in theory acknowledged that law and other social institu- it appears, the Factory Acts were one of the means by which class lines tions could operate independently of class st, and could even play a were redrawn in nineteenth-century Britain. This formulation partially role in shaping the empirical analyses of Jew- upends the base-superstructure metaphor by suggesting that political ish emancipation and factory legislation tend to identify class-based eco- institutions, including law, play a fundamental role in the structuring of nomic interest as the primary determinant of legal change. In the years class relations. after Marx's death, several variants of his revolutionary theory competed This critique provides only a starting point for a more detailed account for dominance, but after the Russian Revolution, the Soviet government of British factory legislation, but it implies two avenues of inquiry that effectively claimed a monopoly over Marxist orthodoxy. Leninism, and would likely prove fruitful. One approach would be to focus more closely later Stalinism, adopted an extremely crude, kne erk interpretation of on the parliamentary politics of factory reform: Who were the key spokes- Marx and inverted it: If, under capitalism, the state were by defi- men for reform within Parliament? How did they seek to build coalitions, nition the servants of capital, then Soviet law is by definition the servant negotiate compro s, and er islative tradeoffs? What strate- of the working class. This false tautology was use d to stifle the develop- gies were used by nonparliamentary re groups, especially workers' ment of less deterministic theoretical perspectives, as well as to discredit organizations and middle-class reform associations, to influence the more democratic versions of socialist politics. course of debate, and what was their impact? How did other political and Things began to bubble again after the Second World War, and particu- economic issues (e.g., voting reform, education, industrial development, larly in the 1960s, as non-Soviet Marxists began to break away from the and international trade and tariffs) influence discourse about the fate of influence of Stalinism (Jessop 1980:340). The publication in English of the working class? A second, and complementary, approach would be to Marx's early or "humanist" writings during this period fueled the revi- study the role of the enforce cracy as it developed over the ionist project and led Marxist the gue with other intel- course of the century. M Capital draws heavily on reports lectual traditions, particularly psycho ructuralism. In this by official factory inspectors to provide examples of exploitation, and to atmosphere of theoretical ferment, encouraged by the wave of street pro- assess the relative impact of successive pieces of leg North America in the late 1960s, leftist intel-a precondition of trols on the open market in stocks; labor law distorts the free market in 72 Chapter 3 Law, Class Conflict, and the Economy 73 labor power; subsidies inflate prices to protect industries that could not others, and everywhere stigmatized as moneylenders, parasites, and per- survive in a more competitive system; and-to choose an important petrators of vile atrocities against "innocent" Christians. The legal status example that would have been unfamiliar to Marx-environmental regue of European Jews began to improve dramatically in the late eighteenth lations influence the choice of raw materials and technologies. century, however, as a result of democratic revolutions that began to The issue, then, boils down to this: To what degree is the structure of define legal rights in terms of citizenship rather than social status. This law in the modern West determined by the imperatives of capitalism? The shift occurred most slowly in central and Eastern Europe, and especially distinctive contribution of Marxism is the argument that law serves an Germany, which in the 1840s clung to an official state religion and limited important function in capitalist society by legitimating private property political rights to Christians. This, then, is the question that motivated and repressing class discontent. But, as was emphasized in the last chap- Bauer and Marx: What must German Jews do to achieve the political and ter, function is not the same as cause; to argue from the former to the latter is legal rights Jews had achieved elsewhere? a teleological fallacy. Moreover, a deterministic interpretation of Marx Bauer's prescription was fairly simple, and typical of his and does violence to his own dialectical vision of social change, and it is hard euerbach's view that religion is nothing more than a collective illusion. put to account for laws that co ent of capitalism. This Jews could gain their rights, he suggest y by forsaking their Jewish issue is of more than purely theor cause, to Marx and sub- identity, their religion, and the privileges (e.g., not participat- sequent Marxists, the subservience or autonomy of law has important ing in civic life on the Sabbath) to which they fel ves bound-in implications for revolutionary praxis. If law is inevitably the servant of short, by becoming citizens first and Jews s d, if at all. It is only capitalism, reform efforts are, at best, a waste of effort and, at worst, they because Jews so stubbornly maintained their u ess, Bauer argued, contribute to the strengthening of capitalism. But if law has a genuine that the state in Germany was compelled to insi st on its Christian identity. capacity to act back on the economic base of society, then struggles for Only when all sources of inner opposition disappear can the state shed its judicial and legislative reform may help pave the way to a more egalitar religious guise and appear in its "true" ian society. This issue has, in one form or another, been at the center of Marx rejected Bauer's analysis, and it is not hard to see why. Most debates in the Marxian literature on law for more than 100 years. To get a contemporary readers would sympathize with Bauer's distaste for state- better perspective on recent discussions, there is no better place to begin supported religion but would stop short of blaming Jews for their own than Marx's own analyses of legal reform. predicament. Imagine, by analogy, telling black Americans that if they would only forget they were black, then prejudice would disap justice would reign. But Marx was after bigger used the issue of Jewish emancipation tended Two Marxian Analyses of liscussion on the nature of legal rights and the de Legal Change Under Capitalism to capitalism. Marx's essay is highly pole titious, and overflowing with sarcasm, The Jewish Question analysis of the origin of Western law that is thoughtful and sociologically In 1844, Marx published an essay titled "On the Jewish Question" credible.! (Marx 1975b), in which he addressed the issue of the civil rights of Jews in Marx's argument against Bauer boil points. In the first the modern state. This essay was a response to a piece published the pre- place, religious emancipation is not a prec olitical emancipat vious year by Bruno Bauer, a luminary of the Young Hegelian group that tion; more likely, it is the result. Bauer was on this issue in part had once been so influential on the thinking of Marx and Engels. Their by his philosophical com exchange is important because the issue of Jewish rights in the early nine- ness, and to the view that religion is the major fo teenth century is echoed in ties' and women's struggles for political knowledge of their place in the world. In part also, Bauer's vision was equality in contemporary democracies. From the eleventh to the seven- myopic because he viewed the world from a German perspective. The teenth century, Jews were treated as pariahs throughout Europe; they German nation, Marx argued bitterly, is as backward as German philoso- were driven into ghettoes in some countries, expelled entirely from phy; not only is it a poor example of a Christian state, it is not really a state 74 Chapter 3 Law, Class Conflict, and the Economy at all. Bauer, too, had it backward: "We do not turn secular questions into religion, he received religious freedom. He was not freed from property, theological questions," wrote Marx (1975b). "We turn theological ques- he received freedom to own property. He was not freed from the egoism of tions into secular ones" (p. 151). Come out of the clouds, Marx said in business, he received freedom to engage in business" (1975b:167). effect, and let's examine the real fate of religion in democratic polities. Thus, "the political elevation of man above religion shares all the de- Does religion wither in states that emphasize legal equality? On the con- fects and all the advantages of political elevation in general" (1975b:167). trary: Using Tocqueville's observations of American society as evidence, For example, the state "annuls" private property to the degree that it Marx argued that religion flourishes in precisely those states where extends voting rights to non-property owners. This certainly raises the democracy is most highly developed. The mature or "true" state is one political power of the masses, but it leaves untouched the economic foun- that defines legal equality in terms of a purely public sphere of rights and dations of inequality. Similarly, obligations, and relegates matters of faith to a private sphere over which it claims no authority. Therefore, "it is possible ... for the state to have eman- the state abolishes, in its own way, distinctions of birth, social rank, education, [and] occupation, when it declares that birth, social rank, education, [and] cipated itself from religion even if the overwhelming majority is still reli- cupation are mon-political distinctions, when it proclaims . . . that every gious" (Marx 19756:152). Thus, Jews need not give up their faith for the mber of the nation is an equal participant in national sovereignty. ... sake of citizenship, since the modern d atic state regards religion as Nevertheless, the state allows private property, education, [and] occupation, legally irrelevant. to act in their way .. ., and to exert the influence of their special nature. So far, so good. Up to this point, Marx sounds like a classic liberal. In (Marx 1975b:153) the second part of his argument, however, he raises a broader point about the nature of law and the democratic state in relation to capitalism. Marx The "special nature" of private property, education, occupation, and- argues that it is a vain hope to expect political emancipation to solve the by implication-law is, of course, to perpetuate inequality. By defining problems of the world that are symbolized by religious intolerance. This is personhood in terms of the abstract individual and guaranteeing to that because politics, no less than religion, is an ideology-it creates a "heav- individual only a narrow range of specifically political rights, the demo- enly" ideal of community that exists in contrast to the everyday earthly cratic state simultaneously denies cial class and frees life of civil society. "The relation of the political state to civil society is just class to determine the fate of concrete hu as spiritual as the relation of heaven and earth" (Marx 1975b:154). Indeed, political) lives. Thus, to Marx, it is not merely a the separation of religion from politics is only one aspect of a more general democracy does not eliminate social class dis ns. On the contrary, process of institutional segregation that cleaves human identity into a the bourgeois state defines itself by its sepa il society, and number of discrete spheres. This process accelerated markedly with the political humans only exist insofar as they are ated from their social transition from feudalism to capitalism. In feudal society, as Marx identity. Quoting from various French constitu the Declaration of t described it, the political, social, and religious spheres of human life all Rights of Man and Citizen, and the const American interpenetrated one another. Religion was not confined to the church but, states, Marx argued that the legal rights reco rather, infused the workplace, the family, and political authority with highly formalistic and abstract freedoms from: Freedom of religion, press, transcendent meaning. Similarly, the state did not exist as a distinct entity; speech, and association guarantee immunity from interference by others, rather, political authority was diffused and enacted through kinship net- and thus perpetuate the egoistic ethos of capitalism. The only substantive works, occupational associations, and the church. Thus, in practical terms, right guaranteed by law under capitalism is the freedom to own and dis- wages and prices were influenced by community norms, and the pose of property. Thus, exploitive power of the nobility was to some degree constrained by their dependence on their vassals and by the crosscutting power of the mer- The right of man to liberty is based not on the association of man with man, chants and guilds. The democratic revolutions of the eighteenth and nine- but on the separation of man from man. It is the right of this separation, the teenth centuries served capitalism by cutting humans loose from these right of the restricted individual, withdrawn into himself. dense associational networks, leaving them naked and isolated, egos The practical application of man's right to liberty is man's right to pri- without identity or human context. "Hence man was not freed from pate property. (Marx 19756:162-63) 76 Chapter 3 Law, Class Conflict, and the Economy 77 This wider argument can be read straightforwardly in light of the base- we will see in the next chapter, Max Weber gave it a shot, but with mixed superstructure metaphor: Reduced to its essentials, it suggests that eco- success. nomic relations determine the structure of law. Law is an ideological proj- ect, no less so than religion, culture, and morals. But there is also a sense in this essay, if only implicitly, that law it form of ideology in The English Factory Acts capitalist society. Law is the instru stitutes persons in the The second example to be discussed here was written late in Marx's form of atomized, rights-bearing, property-owning individuals and that life, when he had forgone discussions of "species being" and alienation in constitutes civil society as a domain separate from politics. "Political favor of a more scientific economic analysis of British capitalism. The sub- emancipation is the reduction of man, on the one hand, to a member of ject at issue is the Factory Acts, a series of bills passed by the British Parlia civil society, to an egoistic, independent individual, and, on the other hand, ment over the course of the nineteenth century to improve working to a citizen, a juridical person" (Marx 1975b:168). Law under capitalism is conditions in factories and mines, especially for children and wome thus the institutional embodiment of alienation. Marx's discussion is cursory, appearing only as brief digressions in Capital How adequate is this argument from a sociological point of view? It is where he discussed tempts to limit the length of the working certainly a plausible account of legal change, but it is incomplete in two day (1967:278-302) and to imp f the workplace (pp. 470- ways. First, Marx's conc ion of law and legal systems is ex- 503). But his analysis is important for our it brings into tremely superficial and one-dime asional: Feudal law appears relatively sharp focus the much larger iss e of gov personalistic, substantive, and communal, while law in capitalist societies omy. Here, the issue is a bit more subtle than appears uniformly abstract, formal, and individualistic. This categorical If, as the base-superstructure metaphor suggests, law is determined by the scheme understates the complexity of legal institutions within the two imperatives of capitalism, how can we account for laws that limit prop eras and overstates the differences between them. Law in medieval rty rights and free competition for labor? Europe in fact consisted of a number of different styles of law-including We begin with some background. The "Factory Acts" refer to a series English common law, Teutonic tribal law, and the Canon law of the of laws passed by Parliament, beginning in 1802, to mitigate some of the Roman Catholic Church, which in turn was heavily influenced by ancient harshest excesses of industrialization. Driven by Roman law-all of which jockeyed for dominance and left a lasting tion, early British capitalists used the po imprint on contemporary legal systems. Similarly, modern European and lengthen the working day, increase the American legal systems vary widely in their emphasis on formalism and the cost of labor. In particular, they employe individualism, with the widest differences appearing between the com- women and children in their factories, often requiring 12-hour days and mon law tradition in England and the United States and the civil law tra- innine double shifts to minimize downtime for their machines. Factory dition that prevails in continental Europe. Pointif not refute Marx's caus tion of children60 Chapter 2 2. Rauma (1981) has offered a crushing critique of Blumstein's research on the topic. 3. Indeed, aside from Berk's findings, one of the most consistent conclusions of research on imprisonment is that prison populations rise and decline with levels of unemployment-a finding that fits Marxist theory. For a thorough review of the literature on punishment-including an interesting reworking of Durkheim-see Garland, Punishment and Modern Society Law, Class Conflict, and the Economy (1990). 4. A more detailed discussion of the record of anthropological research and its implications for Durkheim's theory can be found in Sheleff (1975-29-30) 5, Criminal justice statistics cited here are taken from Maguire and Flanagan Marxian Theory (1991, Tables 6.55 and 6.59) and Greenfeld (1991). 6. For a complementary example of the use of political symbolism to chal- lenge dominant elites, see Alexander's (1990) Durkheimian analysis of the Watergate crisis. This chapter is concerned with Marxian theories of legal change. Perhaps the first question to be addressed is, Why study Marx? Karl Marx was born in 1818 and died in 1883. From a contemporary perspective, Marx- ism, as either a philosophy of history or a political theory, seems to be on the run. The socialist regimes of the Soviet Union and its satellites have disintegrated, and, under the onslaught of market forces, even the Chi- nese government has lost its ideological elan and succumbed to geriatric authoritarianism. In Western univer es, free-market economic thought has moved beyond economics depa and has made converts in so- ciology, political science, and jurisprudence; many erstwhile Marxist aca- demics have found more stimulating agendas in feminism and postmodernism. Law students no longer clamor for courses in public- interest law but, instead, by and large, aim straight fo lucrative careers in corporate law; law school curricula, never very adventurous, are adapting to this conservative shift (Gordon 1991). To paraphrase an old question in the sociological literature, Who now reads Marx? And why should we? These questions have a simple answer, but a demonstration is better. Go to your nearest municipal or superior court and watch for a while. Start with a criminal court and make some observations: Who are the defendants? Who are the lawyers? Who are the judges? Go to a civil court and ask the same questions. Then, perhaps, go to a small claims court and do it again; here, your observations will be simplified because there are no lawyers. How do litigants in small claims court differ from those in civil courts? How do procedures, and the quality of legal representation, differ in all three settings? If your community is like most in the United States, a few facts will stand out. Criminal defendants will tend to be young, male, 61 62 Chapter 3 Law, Class Conflict, and the Economy 63 poor, and disproportionately black or Latino; they will often be repre- evolved over more than 30 years of writing, the relative importance of sented by public defenders rather than private attorneys; and they will these diverse influences shifted dramatically. His early work, which was most often accept plea bargains rather than risk trials. Small claims liti- not widely published until the mid-twentieth century, is highly humanis- gants tend to be middle-class individuals and small businesse tic and philosophical in tone (Marx 1964), and his later work, which culmi- stakes in small claims court are too big for them to ignore but not big nated in his unfinished masterwork Capital (1967), is erned with enough to justify the cost of a civil suit. Civil courts are mainly concerned the determining influence of econom with the affairs of big business and government. Individuals may also sue, The second major difficulty for our is that neither Marx nor of course, for malpractice, negligence, or even racial or sexual discrim his collaborator Engels offered any sustained analysis of the creation, ination, but these individuals must be affluent enough to have some- transformation, or function of law. Indeed, Marx died before he was able thing to lose, and the real defendant e insurance to complete a planned analysis of the state in Capital. Thus, we must piece companies together a Marxist model of legal change from his many fragmentary ref- If this exercise doesn't make the point, think about the way laws are erences to law, from his incomplete analysis of th ole of the state in capi- made. Who gets elected to Congress and state legislatures? Who gets talist and precapitalist societies, and -from the appointed to head executive and regulatory agencies? What kinds of writings of scholars who have used Marx's gen ory to develop a interests are represented by lobbyists in Washington? How are political specific account of Western legal system as. This effort, too, is fraught with action committees funded, and who contributes to political campaigns? difficulty, because interp nterpretations of Marx have varied widely. Interpreta- The idea here is that law, even in democratic societies, is biased toward the tions have been influenced not only by ambigu es within Marx's own interests of affluent and powerful elites. This is not a particularly radical writings but by history-especially the rise and eventual collapse of the notion or one unique to Marxism: Many card-carrying liberals have Soviet Union as the dominant voice of "off observed that the poor are systematically denied equal legal protection fates of communist and socialist movements in other countries, and by and representation (Carlin, Howard, and Messinger 1967). And, to be the changing face of capitalism itself. Marx was anything but a d sure, legal inequality can be based on criteria other than class, such as race ested intellectual, and his ideas (and at times just his name) have been and gender. But if our goal is a general understanding of the role of in- invoked as polemical support for a wide range o movements and politi- equality and conflict in the legal system, social class-meaning, in this cal regimes case, disparities in economic power-is a pretty good place to start. And Although there has been no agreem version of Marx- of all the classical theorists, Marx holds the original patent on the concept ist theory, it is possible to identify some major themes in his work that of class. In his model, class conflict is the engine that drives social change, relate to legal development and to trace these themes as they were worked including change in law. and reworked by successive generations of interpreters. In other words, But Marx was not primarily a legal theorist, and his thoughts on law our exploration of Marxist legal theory must take are difficult to state with clarity for a couple of reasons. First, his writings tory of Marxist thought. are a complex synthesis of a number of different intellectual currents. For the sake of consistency with our discuss ns of Durkheim and Marx was educated as a philosopher, and, like all German philosophy Weber, this chapter will begin with a general exposition of Marx's vision students of his day, he was deeply immersed in the idealist tradition, in of social order and his methodological styl analytic app which Hegel was the towering figure. Marx drew from Hegel a dynamic collaborator Engels termed "historical materialism vision of historical change, but he rejected Hegel's advocacy of authori- to place law within this general context by foc tarian politics in favor of the more egalitarian social order espoused by issues: the political emancipation of French utopian socialists such as Fourier and St. Simon. He sought to regulation of the labor market. The disc overcome the impracticality of both German and French social philoso- preters, focusing first on Antonio Grams phy by borrowing a hard-edged analytical model of capitalism from the sionist texts in the 1920s, and then on neo-Marxist writers of the 1960s and British political economists, especially Mill and Ricardo. As his thought after. 64 Chapter 3 Law, Class Conflict, and the Economy 65 Law and the State in the Classical Marxian Model and the distinctiveness of various skills, ideas, and tastes is reduced to the Our discussion of Marx's social theory is centered around three main lowest common denominator of their market value. Finally, humans are themes. One theme is the relationship between human personality and estranged from, and enslaved by, the social institutions they have created. social organization, and particularly the pathological nature of that rela- Most obviously, the capitalist economy, the stat and private property are tionship as he perceived it under capitalism. Marx referred to that pathol- reified and treated as parts of the "natural" world umans mus way, workers must ogy as alienation. Although the concept of alienation appears almost adapt, not as contingent human products. In a sin exclusively in his earliest writings, it provides a foundation for his subse- adapt to their machines rather than adapting tec Read casually, Marx's discussi nation c quent analyses of class inequality and social institutions. The second theme is Marx's methodological approach, which gave a distinctive cast be interpreted as suggesting that "natural" h to his comparative analyses, setting him apart from both Durkheim and by modernity. This sort of romanticist anthropolo was articulated most Weber. The final theme is the structure of society, again emphasizing the forcefully by Rousseau and was echoed in the writings of Durkheim, relationship between the organization of production and social relation- Freud, and other twentieth-century social thinker But as Giddens (1971: ships under capitalism. 15-16) emphasizes, this is in some ways the opp Alienation for Marx was not an ontolog indict civilization, or even industriali Alienation: Human Personality in Capitalist Society that alienation is the result of a histo potential and realization. The irony of capitalis is that it creates unlim To Marx, human nature is neither fixed nor transcendent; rather, it is ited potential for human development and at the same time hinders that mutable and rooted in the productive activities of everyday life. Indeed, in development by producing warped cial relationships. Marx's view, the only fixed attribute of human nature is its openness. Marx's notion of alienation is the comersto e of his ongoing critique of Human beings are different from other animals in the sense that they ideology, politics, and the economy. In all of these spheres, the products of adapt to different natural environments by creating a social environment. human effort are appropriated inst their producers. In Humans realize what Marx called their "species being" when they plan their acti their quest for meaning, hum collective efforts to draw a living from nature, and that estrange them from their own culture and I make sense of their experience in the form of culture. ing in a remote and inscrutable God or Spirit or Nature. In the political Speaking in general terms, alienation occurs when ha stitutes hun is citizens and legal subjects, trol over their unique creative faculties. More specific human rights exclusively with property rights. Mostously trans- mercy; law appears a safer have with the threat of re norms; that is a terror. Chapter 3 In these summaries, Hay's analysis may appear to be more cynical than Thompson's; in fact, they agree on the fundamental points. Thomp- son sees as clearly as Hay that law is responsive to power, but both argue that power is precarious and must be maintained through the organi- zation of consent. In eighteenth-century England, the mechanisms of influence is hidden from Weaknesses: No clear view by democratic ide Doesn't explain legal consent affected the ruling class as well as the poor, in the sense that prose- class-based, coerc havior of law. changes to cutors and judges were constrained to play by the rules. In legal contests, Critiqu the poor were materially disadvantaged, but they were able to invoke a set of principles on their own behalf that were deeply embedded in the culture and institutionalized in legal practice: principles that recognized a con- inherent legal rights, that encouraged minimum standards of fairness, roperty and that sought to limit the coercive power of government. Class, in this ncing workers that they joy legal and political view, is one of the many factors that affects legal practice, but it is not a pri- unction of protecting logical function of con- erforms a coercive Causes of Legal Change mary determinant of legal form. For this reason, Thompson has been accused of "cultural reduction- Under ca sm" by more orthodox Marxists (Merritt 1980:210), but this is a flawed reading. As Spitzer (1983) suggests, Thompson and his colleagues are not merely turning the base-superstructure model on its head; they argue that the very distinction between base and superstructure is wrong: "For Thompson law does not simply influence the material basis of society, it becomes part of that basis" (p. 109). At this point, the distinctive features of the Marxian program seem to dissolve and a new set of questions pops up: What historical conditions contributed to the rise of the legal culture that Thompson identifies? Is this culture unique to England, or can vari- ants of it be found in other democratic societies? To what degree is the rule of law exportable to newly independent democracies? Issues like these are undertheorized in Thompson's and Hay's work (Sugarman 1981:87-88) and can only be addressed through a broader program of comparative research. Summary and Discussion The analysis of Marxist theories of legal change is summarized in Table 3.1. This chapter has sought to delineate two versions of Marxist legal the- ory and to distinguish them in historical as well as intellectual terms. We can refer to them respectively as the ins ntal and the symbolic versions of Marxism. The instrumental version, which lies on the surface of Marx's An Analytical Su own writings on law and which became the ruling orthodoxy of the Soviet TABLE 3.1 state, rests on a crude interpretation of the base-superstructure metaphor and a unilinear, monocausal model of human history. In this view, law 94 Chapter 3 Law, Class Conflict, and the Economy and, more generally, the state are the coercive instruments of capital; laws modes of production. Perhaps more important, lacking a systematic are written and enforced to protect the sanctity of private property and description of capitalist legality in general, we cannot hope to account for suppress dissent. This perspective is attractive because it offers a straight- differences among legal systems in capitalist societies. Again, this issue is forward account of some of the most important and oppressive chapters assumed away by the instrumentalist perspective: If law is a reflection of in Western legal history: the development of early penal law, the suppres- the mode of production, then capitalist law is generically different from sion of labor unions and the use of military and police power to crush precapitalist law; legal differences pitalist societies are by defini- strikes, the impotence of regulatory legislation, and so on. tion trivial and uninteresting. But there are a number of debilitating weaknesses to this approach. But I would suggest that they are neither trivial nor uninteresting. Any One is its inability to account for legal change that is not in the obvious general theory of legal change must be useful in explaining, for example, interest of capitalist elites or that runs counter to their interest: laws, for the wide differences between Continental European civil law systems and example, like the Factory Acts, that limit the exploitation of workers; that Anglo-American common law systems, both of w recognize the right of workers to organize and bargain collectively for takably capitalist societies. It should also hel and the often wages and working conditions; that outlaw discrimination in housing, precarious state of legality in relatively ne mocracies in political participation, and the workplace; the flow of South and East Asia, Africa, and Latin America well as those in the for- capital and the exchange of property and ities. Such innovations are mer Soviet empire. Marx offered us a few building blocks for a general typically explained in functionalist terms, on grounds that they are benefit model: Capitalist law, he argued, transforms the human individual into cial for capital in general or for the monopoly sector. But such explana an abstract legal subject whose es utes are the right to own tions are fatally tautological unless they are backed by evidence that the property and the freedom to make contracts. But th various class groupings both perceived and acted on their own interests. not distinguish Marx's account from, say, Durk More often, capitalists and workers alike appea certain and divided. addition, Durkheim elaborated this insight in m This suggests a second weak specify the his typology of legal systems-which distin reen punitive and agents of legal change and to demonstrate how their class interests are restitutive law, and further between p and negative restitutive linked to their actions. In this literature, causal ass iations are often law-is more sensitive to the nuances of legal development. asserted rather than demonstrated through careful historical analysis. Marxist legal theory in the post-World War II period has sought to From the instrumentalist perspective, agency is perhaps not problematic remedy these deficiencies by treating law as nbolic project with its because the state is assumed to be the servant of capital. But if we are to own dynamics and history. Drawing on Grams notion of hegemony, explain why law leans in a coercive direction in one instance and in an revisionists argue that law is aimed not prima of men ameliorative direction in another, it is important to treat the linkage and women (as when, for example, it is use ss strikes and maintain labor discipline) but se the path between capital and the state as contingent and variable. In the discussion of the Factory Acts, for example, I suggested that we need to attend to the of the law is contingent on ongoing n role of bureaucrats, political parties, and voluntary reform groups as well the ruled, legal development d directly off of the mo as industrial elites in the policy-making process. Few Marxian studies production. Rather, it must be seen as a political project, the outcome offer such fine-grained accounts.' of which is dependent on its local context. In this isionist inter- This brings us to a third criticism. Neither Marx nor his instrumentalist preters uniformly criticize a strictly materialist of the base- interpreters have ever developed a convincing conceptual model that superstructure model. describes the structure of law under capitalism and how it differs from Within this general framework, we traced two lines of development. precapitalist law. Empirical studies in the Marxist tradition tend to focus The Althusserian line distinguishes analytically between the instrumental- on a specific law or, at most, a single type of law in one country during coercive and symbolic-ideological aspects of the law and the state, given period; this is no substitute for a model of legal systems. Such and grants them a relative degree of independence from the imperatives a piecemeal approach makes it impossible to identify those features of of capitalism. But, again, the operative word is relative: While law may capitalist law that make it distinctive and different from law under other concede to the demands of the oppressed to shore up its institutional 96 Chapter 3 Law, Class Conflict, and the Economy legitimacy, such concessions can only go so far. Economic interest is the link between class interest and law is indirect and historically specific, ultimate arbiter of legal practice, and when push comes to shove, law then surely it is important to specify the conditions under which class comes down on the side of capital. Poulantzas advanced the debate interest is blunted, deflected, or transformed. If such factors are viewed as another step by emphasizing the potentially liberating effect of bourgeois unimportant, then Althusserian Marxism boils down to instrumental law, and by suggesting an analytical distinction between "normal" and Marxism with a string of excuses tied to its tail- at most, a set of ad h 'exceptional," democratic and authoritar states. explanations that don't add up to a theory. The st approach The "culturalist" line of thought as mpson carries the quite the opposite risk of diss critique of materialism somew colleagues not just more or less autono argue that capitalist law is not combination of tradi- which interests based on clas tional and modern, elite and ements. In England, at least, law ambition, a could never be entirely appropriated by capital because a traditional gle for recognition an belief in the rule of law and the limits of government was woven deeply made a compelling case that, in the English ca into the discourse of everyday life for all classes. The implications of this decisively shaped for the better by the tra for Marxist theory are profound: The culturalist critique "flattens" the of the rule of law. Thus, the ultimate refe on "in the base-superstructure metaphor. Law is not just the coercive arm of capital- instance" is law itself. But, again, be ism, or just an ideological representation of capitalist values, but a practical cal focus of research in this tradition, we say whether law epresentation of the Rule of Law. has played a similar role in other soci Both lines of revisionist thought hold promise for the development of a It appears, then, that contemporary Marxis exists have tended either to general theory of law. By relaxing the assumption that law is a reflection of (1) complicate the base-sup breaking the mode of production, revisionists open the way to more systematic free of economic determinism or (2) collapse b and superstructure to comparative analyses of legal system ms. At least potentially, such analyses such a degree that the distinctive feature xian theory may be could identify and account for sali ifferences between precapitalist But we should not underestimate the contribu tion that the Marxist per and capitalist forms of legality, and among different forms of law in capi spective has made to our thinking of legal change. Class, and ine equality talist societies; they could also lead to gen about the reciprocal more generally, is clearly an important f ctor in the making of law. Even influence of law on economic organization. But a number of obstacles non-Marxist jurisprudence has ume that law is stand in the way of realizing this potential. For one thing, revisionist built on a foundation of inequality, and proportion of the lit- Marxists have hardly been more successful than Marx himself in develop- erature in the sociology of law is concerned with the ways in which legal ing analytically useful models of legal systems." P lity based on class, race, and-increasingly- valuable insights in this regard, but, as far as I know, his typology ut class is obviously not the only factor to which we should payreforms in their own mills as early as 1830, and they self-righteously sidered in 1843 because it proposed factory children criticized owners of smaller factories for their heedless exploitation should be supervised by Anglican clergy. None formism appealed to of children. However, the Whigs came together to oppose the Factory many workers as well, however, and they too were divided on this issue.* Acts for a number of reasons. They resisted, in principle, the idea of With these complications in mind, Marx's third assumption-that the government regulation. They also resented the idea, explicit in early Factory Acts can be explained primarily in terms of the class interests of reform proposals, that mill owners who violated regulations should be capitalists and workers-just doesn't hold water. As Carson (1974b) has 84 Chapter 3 Law, Class Conflict, and the Economy 85 argued, debates over factory reform must be understood in symbolic problems and enforce laws provides an important supplement to Marian terms as well, for the cultural baggage they carried and the meanings they accounts based solely on class. implied for a broad range of apparently separate issues. This is not simply to say that discourse concerning factory reform was too muddy for the participants, or later researchers, to trace out sharply the underlying issues of class conflict. I am Beyond the Classical Marxian Model arguing, more fundamentally, that Marx was wrong to say that class was entirely antecedent to the Factory Acts; rather, Although Marx in theory acknowledged that law and other social institu- it appears, the Factory Acts were one of the means by which class lines tions could operate independently of class interest, and could even play a were redrawn in nineteenth-century Britain. This formulation partially role in shaping the economic base of society, his empirical analyses of Jew- upends the base-superstructure metaphor by suggesting that political ish emancipation and factory legislation tend to identify class-based eco- institutions, including law, play a fundamental role in the structuring of nomic interest as the primary determinant of legal change. In the years class relations. after Marx's death, several variants of his This critique provides only a starting point for a more detailed account for dominance, but after the Russian Revolution, the Soviet government of British factory legislation, but it implies two avenues of inquiry that effectively claimed a monopoly over Marxist orthodoxy. Leninism, and would likely prove fruitful. One approach would be to focus more closely later Stalinism, adopted an extremely crude, knee-jerk interpretation of on the parliamentary politics of factory reform: Who were the key spokes- Marx and inverted it: If, under capitalism, law and the state were by defi- men for reform within Parliament? How did they seek to build coalitions, nition the servants of capital, then Soviet law is by definition the servant negotiate compromises, and engineer legislative tradeoffs? What strate- of the working class. This false tautology was u d to stifle the develop gies were used by nonparliamentary pressure groups, especially workers' ment of less deterministic theoretical perspective as well as to discredit organizations and middle-class reform associations, to influence the more democratic versions of socialist politics. course of debate, and what was their impact? How did other political and Things began to bubble again after the Second World War, and particu- economic issues (e.g., voting reform, education, industrial development, larly in the 1960s, as non-Soviet Marxists began to break away from the and international trade and tariffs) influen rse about the fate of influence of Stalinism (Jessop 1980:340). The publication in English of the working class? A second, and complementary, approach would be to Marx's early or "humanist" writings during this period fueled the revi- study the role of the enforcement bureaucracy as it developed over the sionist project and led Marxist theoreticians into dialogue with other intel- course of the century. Marx's account in Capital draws heavily on reports lectual traditions, particularly psychoana ucturalism. In this by official factory inspectors to provide examples of exploitation, and to atmosphere of theoretical ferment, encou assess the relative impact of successive pieces of legislation. Marx seems sets that swept Europe and North Amer a in the late 1960s, leftist intel- to have been immune to the irony that state officials provided his most lectuals sought to understand the dynamics of ideology, the state, and law damning evidence against capital and its lackeys in Parliament. More in their own right, and not as m recent scholars have suggested that factory inspectors played a decisive Marxist theoreticians may outdo med heologians in their pen- role in the reform process by documenting and publicizing abuses. Bartrip chant for hair-splitting. In this section, I have no tion of attempting to and Fenn (1980a, 1980b), for example, remind us that the Factory Acts rep- trace the many lines of influence and debat eth-century Marxist resent the first attempts by any country to exert legal control over the con- legal theory, but only to identify a few school ditions of industrial production. Given this, they argue, the gradually most important." I begin with a brief descr he work of the Italian increasing effectiveness of regulation may be due in large part to the Marxist Antonio Gramsci. Although Gramsci's writings date from the growing professionalization and autonomy of the inspection bureaucracy 1920s-he transcribed his Prison Notebooks (1971) while incarcerated by (but see Carson [1974a, 1974b] for a somewhat different view). Whatever Mussolini-he is relevant here because he was broadly influential on the status of these arguments, the thrust of this critique goes well beyond postwar thinkers. Then I move to two more contemporary approaches: the specific issue of the Factory Acts. As we will see more in Chapter 4, the what Spitzer (1983) has called "structuralism," an approach identi- issue of government's political and administrative capacity to articulate fied with French philosophers Louis Althusser and Nicos Poulantzas, 86 Chapter 3 Law, Class Conflict, and the Economy 8 and "culturalism," identified mainly with the British historian E. P. rejected a crudely materialist interpretation of the base-superstructure Thompson. metaphor but at the same time did not fall into the idealist trap of positing the willful, conscious acts of individuals as the driving force of historical change. To this end, he argued that the econom nic and superstructural Gramsci: Hegemony and the Organization of Consent aspects of society form a "totality"-a complex but structured whole in In the orthodox interpretation of the base-superstructure metaphor, which different parts are dominant at r's notion law appears primarily as an instrument of coercion wielded by the state of totality is thus som emony, but on behalf of the ruling class. Gramsci departed from this view by arguing Althusser took it in a different direction. H a that the various com- that law is also a means for organizing the consent of the governed to their ponents of the superstructure, such as law, po s, religion, and culture, subordination.' In this view, the problem for Marxist legal theory is not to are "relatively auton s" not only from each other but also from account for who holds power and what they do with it when their inter- the economic base. Moreover, each component has its own "specific ests are clear-one doesn't need a sophisticated theory for that. But law is effectivity"-that is, it has its own history and a discernible causal influ- more than brute force. The more challenging problem is to account for ence on society. Effectivity is "specific" because history is so complex that consent-the apparent fact that modern capitalism has assured its longev- no generally valid statement can be made about the causal effects of law, ity not by grinding workers into submission but by convincing them that the state, or the economy on social life, and the autonomy of these spheres capitalist institutions operate in their interest, and in the interest of society s "relative" because economics is expected to be the dominant force "in as a whole. Gramsci famously used the term he cterize this the last instance" (Althusser 1969:113-14, 1970:99-100, 1971). project. This somewhat contradictory argum -that law is "relatively auton- Moreover, hegemony is not imposed by a conspiracy of elites; instead, omous" from economics but economics is determinant "in the last it is produced through historically specific interactions of political forces instance"-has gotten Althusser in a peck of trouble. As has often been (Sugarman 1981:82-83). Thus, in a given instance, the ruling elite may observed, in the last instance we are all dead; putting the issue in this way grant economic concessions to its critics-such as the passage of the Fac- only begs the question of when law will serve capital, or other social tory Acts, for example-that in the long run foster a form of consciousness spheres, or its own internal logic. Hirst (1977), for example, has argued that reconciles the disadvantaged classes to their subordination. In this that the concept of relative autonomy re determin- sense, ideology "is not a 'trick" imposed by the ruling class in order eter- ism but any kind of determining nally to deceive the workers" (Hall et al.1978:47) but, rather, a set of value ways out of this trap. First, the influer s often indirect: orientations that to some degree are shared by rulers and ruled alike. While law may in a specific instance in conomic base, eco- Finally, if as Gramsci argues, ideology is neither a simple reflection of eco- nomic interest itself determines how and mstances this nomic interest nor a con game perpetrated by cynical elites, then the key will occur; the "last instance" formula only signifies that economics is analytical problem is to account for the reproduction of ideologies-that is, never the sole determinant of historical change. Second, the relative their transmission and transformation over time and across generations. autonomy of law and the other parts of the erstructure lies primarily This suggests a focus on social institutions, such as law, as the means by in the way they contribute to the repro which ideologies are codified and t anslated into repetitive patterns of (Althusser 1969:254, 1971). As Althusser ave said but probably human action. Thus, the law that we experience in our everyday lives didn't, there is more than one way to skin a cat; legal systems may var informs our understanding of law in the abstract, and limits our horizon widely in form, but they tend generally to contribute to the maintenar of expectations about what law can be. of the totality. As Spitzer (1983) has observed, this revision of the bas superstructure metaphor "does not block the path between economy and law, it only serves to make the path more tangled as" (also see Structuralism: Althusser and Poulantzas essop 1980:341-42). Louis Althusser sought to apply the insights of French structuralist Poulantzas paid more direct attention to law than Althusser, added philosophy to the revisionist project. His goal was to develop a model that a Gramscian spin to Althusser's argument, and took the idea of the 88 Chapter 3 Law, Class Conflict, and the Economy autonomy of law more seriously. To Poulantzas, law does not simply wolf in sheep's clothing. Second, Poulantzas argues that hegemonic crisis reproduce bourgeois political dominance but institution