Beyond law: towards an alternative to legal regulation under socialism

Justice Peeking

The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.
–Anatole France, Le Lys Rouge

As a Marxist and a lawyer, I often find myself split by conflicting intellectual loyalties. Not that I entered my studies holding to some naïve belief that law and justice are one and the same, but even if I had, I would have soon been disabused of this idea. Legal education in Spain is, like in most of Europe, profoundly positivist, meaning by this, that the morality, fairness or prudence of a law is regarded as entirely separate from its juridical quality, and hence its force to compel. Taking a quick stock of my teachers, all but two were committed positivists, which is perhaps to be expected, given the difficulties in grounding law any other way.

It is however inevitable that, after five years of studies, the mental habits, categories, and conceptual apparatus of the discipline became instilled at an almost unconscious level in my way of thinking. To this day, I can’t read news such as Qatar handing the Syrian embassy to the insurgency without getting a complex chain of concepts activated: Montevideo criteria, premature recognition, the Vienna Convention on Diplomatic Relations (1961), inviolability of diplomatic premises and envoys… all resulting in an automatic inner scream of outrage–illegal! But the most surprising thing I learned about the law in long years of study is how plastic it actually is. It goes beyond Kirchmann’s criticism to those who wanted to found a science of law: three rectifying words from the legislators, and entire libraries become garbage. The problem is that, no matter how much theorists want to ground law on the normative, it is a social process, not a static edifice, and one which is inherently characterised by conflict. There is no law, not in its strongest sense, where there is no dispute.

It’s difficult for a discipline that’s attempting to be a bourgeois social science, and one which aim is, in a large part, to justify the existence of its object, to ground itself in conflict, though. Hence, the preference for positivist approaches which take for granted the whole problematic notion of the state and sovereignty. Thus, Kelsen’s Pure Theory of Law, the summit of this tendency to regard law as a normative structure, is forced to conjure the spectre of the Grundnorm, which is a hypothetical underlying normative structure to the whole legal system stating that law must be obeyed.

Kelsen’s theory, which is otherwise admittedly endowed of a certain elegance, envisions the legal system as a pyramidal structure: the constitution or basic laws would determine the validity and limit the content of those laws below, which would do the same to regulations, which would do likewise to individual juridical acts such as judgements, decisions, resolutions, etc. For Kelsen, even the activity of a judge is a form of legislation, specifically the drawing of a norm to be applied to a given individual case, which must be in accord which those norms above it. He then proposes the idea of a constitutional court, to act (in his words) as a negative legislator, in order to annul those laws which are contrary to the constitution. All rights and duties are, under this theory, not first-class legal entities, but “reflex effects” of norms (i.e., your right to use a given object is a reflex effect of the norm which commands the judge to allow you to do so).

Of course, such a system attains its closure from entirely excluding outside its bounds the entire difficulty conjured by sovereignty and the state: why should these norms be obeyed? Under the validity criteria typically proposed by positivists, norms have the force to compel if they are passed by a body with adequate authority, by a pre-existing adequate procedure. Adequacy here refers merely to the conformance to previously existing higher norms, and, ultimately, to the Grundnorm. How the Grundnorm can itself be determined to be adequate or inadequate, however, is not something that can be even addressed under this framework.

The traditional competing legal philosophy opposed to positivism is the school of natural rights. This position is pretty old (it can be traced back to Aristotle) and it had relatively broad historical uptake depending on the particular political context. Typically, the theory of natural rights is successful at explaining and, to an extent, determining law when the state, understood as a centralised authority, is weak. Feudalism is a good example of this. However, the school of natural rights had a strong reception by liberal bourgeois thinkers of the Enlightenment, which regarded natural law as a higher source of law than statute, and the platonic form which states should conform to. Unsurprisingly, the content of this higher law was highly disputed, though always within the confines of acceptable bourgeois forms. Having attained political power, the bourgeoisie attempted to sharply delineate public from private, and part of this was to sustain the existence of a particular natural order which the state is merely in charge of protecting.

However, the difficulties inherent to a hypothetical natural law (including the fact that every theorist ended up with their own version of it) together with the rejection of positivism, led to several competing views. Legal realism took a conflict-based, empirical approach to the matter, stating that the study of law should not be exclusively or primarily the study of norms, but the study of legal practice as it actually exists. This position had adherents both in Scandinavia and the United States, and they focused their efforts in analysing the way judicial decisions are reached. Aside from some interesting results regarding how embodiment affects the exercise of law (for example judges act differently when they are hungry or sleepy¹) this work yielded two interesting insights: the first was the dissolution of many of the categories that positivists and naturalists had considered key to the study of law, and the second was the discovery–or at least the admission–of legal indeterminacy.

Whatever their disagreements, people before legal realism tended to agree that there is such a thing as a juridical category; something which separates legal norms from other kinds of norms. Jurists like Alf Ross, on his work Tú-Tú,² ridiculed this notion, showing how it is equivalent to a religious or superstitious idea, devoid of effective operational value. There is no sharp line of demarcation that allows us to determine what is or isn’t juridical. In the United States, similar results were obtained by Hale³ on his study of the “rate-making cases”. These cases adjudicated the determination of fair rates for legal utilities, and judges set them by reference to present market value. However, present market value was of course influenced by the beliefs people held about what the future fair rates would be. Hale aptly demonstrated that what look like neutral mechanisms for conflict resolution are, in actuality, the very basis for the creation of economic advantages, finding the essence of an economic system based on property rights in the legally conferred right to exclude:

If courts, for instance, should prevent a man from breathing any air which had been breathed by another (within, say a reasonable statute of limitations), those individuals who breathed most vigorously and were quickest and wisest in selecting desirable locations in which to breathe (or made the most advantageous contracts with such individuals) would, by virtue of their property right in certain volumes of air, come to exercise and enjoy a peculiar economic advantage, which might, through various modes of economic exchange, be turned into other forms of economic advantage, e.g., the ownership of newspapers or fine clothing.

The matter of legal indeterminacy would prove a more potent criticism of formalist positions, given its important practical consequences. The notion that law is indeterminate can be stated with different degrees of force: from the most radical view, which holds that law absolutely does not constrain the decisions of judges which, given a certain fact pattern, could arrive at any solution at all, to more moderate views that law simply underdetermines these solutions, creating an ample range of possible results, or that for all actually litigious situations where resort is made to the legal system, the law fails to determine the solution. Whether one agrees to the strongest form of indeterminacy (which I will admit is rather hard to sustain) or to a weaker one, it is clear that predicting judicial outcomes is extremely difficult. The mechanisms which exist for appeal are a testament to this fact: we don’t appeal an equation or an observation; but we appeal a judicial decision because, ultimately, it could have gone the other way. Furthermore, the response by some formalists that law is actually determined, but judges issue erroneous rulings, is pretty useless when one starts (as a realist does) from the standpoint of studying legal praxis.

The Critical Legal Studies (CLS) movement tried to leverage this result to put law to the service of society. CLS scholars tend to be liberals (though there are also some socialists) who believe that, through the use of rhetoric, narrative framing, and other devices, it is possible to turn the legal system, which traditionally favours the ruling class or the status quo, into a tool to redress these situations and improve the conditions of the lower classes or those oppressed by society. A similar movement to the CLS was the alternative use of law school, from Italy, which was more self-consciously influenced by Marxism. However, in spite of what the best intentioned practitioners believe, I’ll try to point out why these attempts to tame law and make it serve society and democracy as a whole are ultimately condemned to failure.

And what of other rights, unspeakable, abominable, over the lives and bodies of their people, rights which, if rarely exercised, have never been rescinded. To this day if a noble returning from the hunt were to slay two of his serfs to bathe and refresh his feet in their blood, he could still claim in his sufficient defence that it was his absolute feudal right to do so.
–Rafael Sabatini, Scaramouche

Marxists regarded law and the state as an instrument of class rule from the start. Some of Marx’s thoughts on it–having been trained as a lawyer in the German pandectist tradition–leave no room for doubt:

During the very first storms of the revolution, the French bourgeoisie dared to take away from the workers the right of association but just acquired. By a decree of June 14, 1791, they declared all coalition of the workers as “an attempt against liberty and the declaration of the rights of man,” punishable by a fine of 500 livres, together with deprivation of the rights of an active citizen for one year. This law which, by means of State compulsion, confined the struggle between capital and labour within limits comfortable for capital, has outlived revolutions and changes of dynasties. Even the Reign of Terror left it untouched. It was but quite recently struck out of the Penal Code. Nothing is more characteristic than the pretext for this bourgeois coup d’état. “Granting,” says Chapelier, the reporter of the Select Committee on this law, “that wages ought to be a little higher than they are, … that they ought to be high enough for him that receives them, to be free from that state of absolute dependence due to the want of the necessaries of life, and which is almost that of slavery,” yet the workers must not be allowed to come to any understanding about their own interests, nor to act in common and thereby lessen their “absolute dependence, which is almost that of slavery;” because, forsooth, in doing this they injure “the freedom of their ci-devant masters, the present entrepreneurs,” and because a coalition against the despotism of the quondam masters of the corporations is–guess what!–is a restoration of the corporations abolished by the French constitution.

As a matter of fact, Capital, Volume I, Chapters 27–8, constitute a rather encyclopædic compendium of legislative acts which served as cover for bourgeois depredations. This traditional understanding of law was often received by Soviet thinkers after 1917, which led them to conceive of law as a mere instrument of class rule, fully historically contingent and determined by the economic base. However, there are hints in Marx’s works that suggest his position was somewhat more nuanced. For instance, on Capital, Volume I, Chapter 10 (on the working day), he utters this somewhat obscure pronouncement: Between equal rights, force decides. This and other statements from Marx’s corpus, as well as the work by later Marxist thinkers, leads one to conclude that, while the law is indeed an instrument of class rule, this characterisation of it is insufficient. After all, class rule can be effected many different ways, and the bourgeoisie has often resorted to naked force. So what is it about the legal form that makes it the primary–certainly in principle–mechanism for bourgeois hegemony and bourgeois power?

Some of this comes given from the way the bourgeoisie constitutes itself as a class, and the source of its power. Whether one accepts–as I do–that pre-modern forms of property rights are not clearly commensureable with bourgeois property or whether one considers that the distinctions still allow for a trans-historical notion of legal property, for example in land, which would apply to feudal estates, it’s undeniable that the generalisation of rights and the legal form to the whole ambit of society belongs to liberalism. The merchant must trade in a market, exchanging commodities. This requires capitalists to recognise each other as equals, to respect each other’s will to enter or withdraw from trade, and to acknowledge each other’s property rights in the commodities at issue, and the concommitant rights to exchange and exclude. Such three preconditions for trade form the basis of the transformation of a human being into a juridical subject. Contrary to feudal regimes, the liberal order requires the recognition of equality between persons, dissolving the particularist notions of caste, and their ability to dispose of that which they own at will, much unlike feudal entailments.

The repetition of acts of exchange, making society turn around the circuit of capital, leads to a progressive dismantling of recognised forms of inequality. This tendency, which stems at heart from the act of contract (and the whole “will theory” around it), becomes reified and enters politics through the proclamations of liberal constitutions, which raise the principles of personal equality to the realm of heavenly edicts. All citizens must have the same rights to life, liberty and property, so that all relations in society can turn into relations of exchange.

This insight, linking the legal form (the contention between free and equal juridical subjects for their individual interests) to commodity exchange, was the key insight of the Soviet jurist Evgeny Pashukanis, which he published on his seminal work, General Theory of Law and Marxism. In opposition to the legal instrumentalists, who held that law was merely an ideological tool for class rule, hence there could and should be proletarian law, Pashukanis found in the legal form the clear footprint of a society determined by exchange value.

Pashukanis didn’t deny that the content of law could act for purposes of class rule. He conceded that the particular content of the legal form can serve the interests of a given class, and gave several examples from different historical times. Nonetheless, given the link between law and exchange, he considered any attempts to create an enduring system of proletarian law as fruitless and counter-productive. His plan was more ambitious: a withering away of law, to be substituted by technical regulation. Law, as he points out, is not the only means by which society is organised, or by which individuals can relate to each other or solve conflicts. Law is a particular form that’s bound to the confrontation of free and equal individuals holding selfish interests against each other. Hence, he considered that the existence and profusion of the legal form was a useful indicator on the progress of the revolution (the NEP, for instance, compelling the state to introducing more complex legal mechanisms).

This view of law also yields interesting insights about the treatment of antisocial behaviour. Specifically, Pashukanis asserts that, from a pre-modern basis in collective responsibility, liberalism extends the metaphor of exchange to crime.⁴ Thus, when a juridical subject deprives another of their right against their will, a violation of the law of exchange has taken place. The role of the law would, then, be to redress this involuntary exchange, yielding justice: equal value. The liberal penal system, therefore, focuses on the notion of “pay-back”, or retribution, to the point of specifying, in intimate detail down to the number of days, the punishment which consists of equivalent value for the violation of a given right. It was not until the triumph of the bourgeoisie that prison transformed into the paradigm for criminal punishment. Before then, there were debtors’ prisons, but they merely meant to keep hold of the people until they could pay, and other more serious crimes were often punished by death, exile, or other non-prison sentences.

But what is technical regulation? If the law is to wither, what mechanism to organise society will serve in its stead?

The basic assumption of legal regulation is thus the opposition of private interests. At the same time the latter is the logical premise of the legal form and the real cause of the development of the legal superstructure. The conduct of people may be regulated by the most complex rules but the legal element in this regulation begins where the individualization and opposition of interests begins. “Controversy”, says Gumplowicz, “is the basic element of everything legal”. Unity of purpose is, on the contrary, the premise of technical regulation. Therefore the legal norms concerning the liability of railroads presume private claims, private individualized interests; the technical norms of railroad movement suppose a single purpose, e.g. the achievement of maximum freight capacity. Let us take another example: the curing of a sick person presupposes a series of rules both for the sick person himself and for the medical personnel; but to the extent that these rules are established from the perspective of a single purpose, the restoration of the patient’s health, they are of a technical nature. The application of these rules may be accompanied by coercion with respect to the patient. But so long as this coercion is considered from the perspective of the same single purpose (both for the rulers and the ruled), it remains solely a technically expedient act. Within these limits the content of the rules is established by medical science and is altered with its progress. There is nothing here for the lawyer to do. His role begins where we leave the basis of unity of purpose and move to the consideration of the perspective of individualized and antagonistic subjects, each of whom is the bearer of his own private interest. The physician and the patient are now transformed into subjects of rights and duties, and the rules which connect them are legal rules. At the same time, coercion is now considered not just from the perspective of expediency, but from the perspective of formal, i.e. legal, permissibility.
–Evgeny Pashukanis, General Theory of Law and Marxism, Chapter 2

Technical regulation is characterised by the utilisation of technical norms, in accordance to the state of the art, in order to decide what is most beneficial for society as a whole. It presupposes the unity of purpose which can be attained in bourgeois societies only sectorially, and exceptionally, but which would characterise the whole of socialist society, once the state has ceased its role as a mechanism to impose the rule of one class over another, through force, standing separate from society, authority cleaved from the general will.

The withering of law is, hence, not a practical goal to demand immediately, and even during the dictatorship of the proletariat–the period while the working class abolishes class rule through democratic means, and progressively dismantles the basis of the hitherto existing system of class domination, ultimately disappearing itself as a class–it is unlikely to be possible to carry out to its full extent. However, it is useful to consider that bourgeois law is, in spite of its real achievements and improvements, not something we want to preserve for the long term. Penal law, for instance, must disappear, and in its stead antisocial behaviour should be considered holistically, from the standpoints of psychology, sociology, and so on, reaching the best possible technical interventions for society as a whole, focusing on benefit and harm, instead of guilt and retribution. Even those areas where bourgeois law can be argued to have made important contributions, such as the whole procedural system, must be redrawn from scratch on a technical basis. The system of presumptions, exclusion of evidence, adversarial debate, and so on, should be substituted for a technical process where human bias is accounted for, but which doesn’t renounce to consider all facts, and infer from them according to the best practices available.

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