Thursday, March 22, 2012

Marxism and the rule of law

"Hobbes has said that laws without the sword are but bits of parchment ... but without the laws the sword is but a piece of Iron."  - Coleridge, quoted in Derek Sayer & Philip Corrigan, 'The Great Arch: English State Formation as Cultural Revolution'.

What is the law?  We are all obliged to know it; ignorance is no excuse.  Yet, we are never taught anything about it at school.  Only a professional minority, of solicitors, state administrators, judges, police and so on, actually know what is involved.  Protesters, campaigners, occupiers and strikers are often obliged to undertake a crash course in specialized fields of the law in order to fight on its terms.

What we understand about law is overwhelmingly derived from popular culture, which is to say that our understanding of law is intensely ideological.  We learn that law is the insurance against violence, the antithesis of terror.  The rule of law is opposed to both the unrestrained 'mob' and the unrestrained state.  This claim, dichotomising law and violence as it does, is central to the law's legitimacy, and thus to the legitimacy of the capitalist state. As such, it disarms those who in the course of their struggles must account for the state, understand it, and contend with it.

What follows, then, is one attempt to navigate beyond this impasse.  I hasten to say that this is intended as the beginning of an argument, since I can't claim to have resolved every tension or lacuna in my position.  I will also say upfront that it tries to solve the problem in a largely formal way with only incidental references, by way of examples, to the kinds of historical data that will stand up the argument presented here.  That is mainly to keep the argument under some sort of control.  Doing the subject historical and historiographical justice would require a book, and I don't know how to write one of those.

The 'rule of law' as congealed violence
There are those on the Left who adopt a version the law-violence dichotomy.   E P Thompson, as I mentioned in a previous post, was one of those.  In a concluding discussion in his book, Whigs and Hunters: Origin of the Black Act, Thompson acknowledges the structural selectivity of law, asserting not merely that it has been used as an 'instrument' by the ruling class, but that its very form has been such that it tends to produce outcomes favourable to the reproduction of class domination.  Nonetheless, he reaches this striking conclusion in defence of the 'rule of law':   

"I am not starry-eyed about this at all. This has not been a star-struck book. I am insisting only upon the obvious point, which some modern Marxists have overlooked, that there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power's all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentious of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger."  [Emphasis added]

In assessing this, I think we have to take into account the related contexts of Thompson's theoretical commitments and his politics of socialist humanism.  In his famed attack on Althusser, The Poverty of Theory, one of the points he made was that law did not politely keep to one level, but could be found busily constituting and mediating conflicts at every level of society.  He thus rejected the base-superstructure metaphor, and particularly the althusserian version which held that the different levels of this structure were 'relatively autonomous'.  The same argument can be found in Whigs and Hunters, which draws out what is intended to be an implication of this: law is not merely a superstructural imposition 'from above', but a medium through which the oppressed and exploited conducted their struggles.  Thus the ideology of the 'freeborn Englishman' could be estimated an excellent one, the 'notion' of the rule of law and its supposed equity an unqualified human good.  The challenge was to compel the law to live up to its promise, and the ultimate condition for its fulfilment was the abolition of the class systems which perverted and distorted the law.

Politically, this commitment was related to Thompson's rejection of Stalinism.  It requires no great stretch of the imagination to see why a certain radical English liberalism would be a comfort in the face of 'totalitarian' Eastern tyranny: the gap between 'arbitrary power' and 'the rule of law' seems quite obvious when separated by an iron curtain.  (I don't suggest that Stalinism was actually characterised by an absence of the 'rule of law', but I think that's implicit in Thompson's view, just as it is explicit in many marxist accounts of Nazi rule).  Of at least equal import, though, is his political disappointment, his retirement from activism by the late 1960s, and his complete befuddlement and hostility in the face of the second New Left.  Thompson's weary impatience with young marxists bemoaning 'the fuzz' is of a piece with his disdain for May 1968 as "a rich kid's revolutionary farce", his wariness about Third World revolution, trendy Parisian philosophers and all of the concerns of the New Left which struck him as either modish or politically immature.  To this extent, 'Stalinism' could function as a polemical convenience, enfolding within its compass a range of political and theoretical positions which were disagreeable to the English idiom and romantic moralism that he unapologetically deployed.  In this sense, I think Thompson bears out Althusser's claim that the post-1956 turn to humanism among formerly Stalinized marxists represented a 'right-wing' de-Stalinization; the introduction of feeble bourgeois ideologies of 'liberty' and 'humanity' into marxism was but the mood music for a rapprochement with liberalism.  Still, there are stronger grounds on which one might criticise Thompson's account here, chief among which is that his anti-theoreticist and empiricist tendencies, leave him without the theoretical means to fully break with the 'instrumentalist' account of the law that he is criticising.  I'll come back to this.

Another example of a leftist defence of the law, from a left-reformist perspective, would be Ian Taylor's arguments which were influential on the Labour Left in the early 1980s.  In his article 'Against Crime and For Socialism', Taylor sought to define a leftist defence of law in the context of growing social turmoil and dislocation arising from capitalist crisis and Thatcherite austerity.  The idea was that the left had failed to produce a convincing answer to popular anxieties about crime, largely because it was stuck in two irrelevant analytical modes: either revolutionary anti-statism, or social democratic authoritarianism.  Any analysis which began with a monolithic view of the state, as an instrument for class domination or an uncontested terrain dominated by a single class interest, was intellectually simplistic and strategically barren.  Taylor's argument suggested that law and the state were contested terrains, and he championed the 'community' response to crime favoured by the Bennite Left, organizing local campaigns while imposing democratic and accountable structures on the police so far as possible.  The obverse of this 'community' based politics was a reproach to criminality as anti-social behaviour.  Crime, he argued, was an ideological category which worked on real social material to produce the phenomenon of 'underclass' or 'lower class' criminality.  Thus, the left had to challenge the ideology by displacing the real content from its rightist-populist articulations.  The argument that criminality derived from despair, worklessness, inequality and poverty would not do.  Rather, criminal behaviour was really a kind of self-interested enterprise, distributed across classes in different ways, and a product largely of capitalist individualism.  Among the 'lower class' elements, crime arose from the breakdown of solidaristic communities, or from layers that had never been part of a cohesive, 'respectable' working class.  Social order was worth defending against this sort of predation; policing was an absolute necessity; but it had to be conducted on a popular socialist basis which simultaneously deployed policies to rebuild and stabilise afflicted communities.

This was a very common argument on sections of the Left, especially in the context of E P Thompson's intervention.  Stripped of its more radical prescriptions, the basic analysis of crime as anti-social individualism became the basis for a new authoritarianism within the Labour Party, eventually grounding Tony Blair's 'tough on crime, tough on the causes of crime' campaign and New Labour's punitive campaigns against anti-social behaviour.  Of course, this idea of crime as a form of self-interested enterprise was also offered as an explanation for last summer's riots.  It is vapid: capitalist individualism is everywhere, but crime is not.  Nor is crime necessarily conducted on the basis of 'rational self-interest'.  For all the frankly idiotic commentary freaking out about the theft of consumer goods during the riots, one thing that stood out was the frequency with which those involved acted without reference to material self-aggrandisement, often placing themselves in harm's way in order to conduct sometimes successful but ultimately futile fights with the law.  Altruism, group solidarity and a desire for collective adventure and liberation were salient features of the riots.  Part of the problem here is polysemy: that is, it can mean so many things to say, as Taylor does, that law is ideology.  Quite what that means in practice depends on your conception of ideology and its scope.  I would argue that Taylor, influenced by certain Gramscian motifs, treated 'crime' as an ideological category only inasmuch as it was manipulated by the Right, not inasmuch as it was produced by the ideological action of the law itself.  But again, this I will return to.
What I want to stress is that these kinds of arguments, correctly attempting to oppose a simple theory of law as an expression of class domination, miss what is central to law.  It isn't adequate to say that law mediates the actions of the powerful, and that such mediation is an improvement on unmediated power.  There is no such thing as unmediated power: no way that power could not be materialized in a particular medium.  And what is the medium here?  What accounts for the 'lawness' of law?  Wherein resides the specific aspect that makes legality what it is?  I will develop an argument about this, but the first clue is the constant presence of violence.  If law is a scene of contestation, what decides is violence.  If law has an imperative character, what gives it compulsory force is violence.  To the extent that law is operative at all, it is nothing other than "congealed violence".  Law is, in this aspect, nothing other than a particular organization of violence.

An example from history.  In a previous post, I discussed the 'Massive Resistance' mounted by Southern states in the wake of Brown vs. the Board of Education.  A series of Supreme Court rulings, from Smith vs. Allwright to Brown vs. the Board of Education, and then subsequent fast-track endorsement of the federal government's right to impose Voting Rights, challenged the white supremacist system in various of its aspects.  There was no claim here that the Court was interested in immediate reform.  The approach was to phrase such decisions in such a way as to grant maximum leverage to Southern states in the timing, scale and manner in which they de-segregated.

Importantly, much of the relevant scholarship is explicit in stating that the outcome of these arguments was determined less by the juridical arguments, deduction-from-precedent and so on, than by politics. It was the more centralized, 'interventionist' state arising from the 'New Deal', and a judiciary reconfigured by FDR, that made the difference in a very short space of time between a pro-segregation Supreme Court and one that was imposing reform. Later, the Truman administration's amicus curiae on the international ramifications of segregation made all the difference in Brown vs. the Board of Education. Putting a marxist gloss on this, I argued that underlying this development was i) the rise of monopoly capital and inter-regional firms requiring a further centralization and rationalization of the state of a kind that had begun in the 1910s, and having a different relationship to racial formations than plantation or textile capital, ii) the strategic shift in the Democratic Party's base in response to the emergence of an immigrant working class vote in the North, union insurgency and the growth of the African American vote outside of the South, and iii) the delayed emergence of a civil rights movement effectively deploying disruptive power to force the question and lever open divisions within the ruling class.

At any rate, this process - a Second Reconstruction by many accounts - necessitated the re-organization of state violence in the constitution of class relations. This was manifested quite literally in the federalization of national guards, the use of 101st Airborne, and so on, to physically coerce local state authorities into complying and dropping the various city ordinances, state laws, policing and parapolitical operations comprising 'Massive Resistance'. Between the state of Kentucky and the central state, force (not 'sovereignty', 'states' rights', the constitution, etc.) decided.  Law revealed itself to be, in a sense, nothing but congealed violence.

Between Unequal Rights: against the heuristic of formal equality vs. inequitable content
'Equality before the law' is a cardinal principle of liberal-democratic ideology, and it is one that historians like E P Thompson, and sympathetic theorists, have taken very seriously.  Thompson's critique of the inequities of law, of unjust law, took as its standard the principle of legal equity itself: of the civil and political rights of the 'freeborn Englishman'.  A certain type of marxist critique of this notion holds that it is a purely formal equality which conceals or conveys a content of inequality.  Such, as we will see, is the position of Evgeny Pashukanis.  This is not to say that such a critique must deny the efficacy of formal equality - on the contrary, Pashukanis' work is an attempt to comprehend this formal equality as part of the fundamental, cellular structure of law.  But it involves a different emphasis.  It is not that the law poses a standard of equality which it doesn't realise in practice, but rather that the legal relationship between abstract, formally equal individuals is just the form that class domination takes in a capitalist society characterised by generalised commodity exchange.

Against both interpretations, which actually converge in some of their fundamental assumptions, I want to suggest that the law does not give us formal equality.  Agents are assigned a bundle of rights and obligations depending on their location within the relations of production, such that their formal legal position with respect to one another, irrespective of how these rights and obligations are realised or elaborated in the process of jurisprudence, is not one of equality.  At the most simple level, a capitalist is not equal with a worker, even at the 'formal' legal level.  It will surely be objected that this refers to the substantive content of law, not its form.  Such a reproach is related to schools which treat the legal form as a foundational grammar of abstract legal subjects derived from certain aspects of the capitalist mode of production - most notably, as mentioned, the Pashukanis school which treats the legal form as a derivative of or homologous with the commodity form.  But I don't think the 'form' of law is restricted to its most abstract expression, even if one accepts the grammar of the commodity-law homology.  There are different levels of abstraction at which 'form' makes itself known.  Putting it like this entails that, if the form-content dichotomy is to be useful, it must be revised.  In its current articulation, it seems as if form is something settled at the highest level of abstraction, and content is settled at the highest level of concreteness.  Arguably, however, one finds 'form' and a corresponding 'content' from the first abstraction to the last concrete-in-thought.

As importantly, I am inclined to doubt that the commodity form theory explains what it is supposed to.  Let me reiterate the problem briefly.  The question of the 'legalness' of law comes up for a number of reasons.  First, because in order to truly understand the iniquitous 'content' of law it must be stated why that 'content' - class power, racism, patriarchy, etc - takes the 'form' that it does.  Second, because it is not possible to understand what law does in capitalism specifically, and in particular social formations, without understanding what makes it law in the first place.  That is, what is definitive of law across historical epochs and modes of production, and what is specific to this mode of production.  The Pashukanisian argument is that the legal form is the commodity form; that legal relations first appear in the exchange of commodities between formally free and equal subjects. The commodity relation depends on the items for sale being exchanged between formally equal subjects, who each enter the transaction as voluntary participants, as bearers of rights, particularly property rights.  And it is through this relationship that the legal form is "congealed violence".  For in such transactions, inescapably, there is the potential for one party to alienate the property of the other without consent, which must not happen if it is to be a true commodity relationship.  In the real process of such transactions, of course, coercion almost always intervenes in some way and at some level.  Either it structures the contract of exchange itself, or it calls into question the interpretation of the contract, thus producing a process of legal argument that can ultimately only be terminated through superior violence.  So it is that the grammar of abstract, formally equal legal subjects 'congeals' violence and domination, and the main forms of violence are of course class violence.  It is not that law's promise of equality simply can't be realised in the capitalist mode of production, but rather that this formal equality is the language that class domination under capitalism must speak in.

This seems to answer a number of problems.  First of all, it offers an apparently smooth transition between the determinant structure, the commodity form, and the resulting superstructure, law.  Second, it seems to allow us to pinpoint both the historical continuity of law and its discontinuity: the commodity form may explain the legal form in general, but it is only with the generalization of commodity circulation under capitalism that law expands from localised instances of contract to a universal structure.  Third, it seems to show the precise moment at which violence and consent are mutually articulated in the legal form.  It is so elegant a solution, and absolutely consistent with certain lines of Marx's thought.  But still, I don't think it does quite what it seems to.  First, the smoothness of the transition here is only apparent - unless the homology is reduced to sheer coincidence, unless the legal form just is the commodity form.  The latter is, I think, China Mieville's position.  In what appears to be a deft theoretical innovation, he argues that the law is split between the legal form, which is the commodity form and is proper to the base, and the practice of law, which is a superstructural phenomenon.  Thus, the legal form is but a particular juridical iteration of the commodity form, which is activated and materialized at a different (superstructural, political-ideological) level. 

Again, this is an attractive solution, but I will stick to my position.  I think this conception is inseparable from a set of positions on the base-superstructure controversy which are perfectly arguable but which I suggest we reject. First, China, following Pashukanis, rejects the analysis of law as ideology on the grounds that it reduces law to a set of ideas in people's heads.  Yes, there are all sorts of ideological aspects to, and ramifications of, the law; but, per Pashukanis, we must seek the "objective reality" of law "in the outside world", as opposed to merely the "subjective reality".  This desire to find the specific materiality of the law is part of the reason why Pashukanis tries to trace the legal form to the base, into which he subsumes commodity circulation.  As I will argue in a moment, however, this rests on an unnecessarily reductive conception of ideology.  In fact, it is an idealist conception of ideology which is at fault here, not the suggestion that law is ideology.  Althusser's argument that ideology consists of  "material actions inserted into material practices governed by material rituals" strikes me as the beginning of a superior approach.

Second, relatedly, the argument seems to me to rest on the idea that the superstructure stands in a purely external relationship to the base.  Thus, if the legal form just is the commodity form in a juridical iteration, it must belong to the base, forming part of the foundational structure that will then give rise to a superstructure in which the class-determined 'content' of law will be elaborated.  If, however, you don't assume this relationship of exteriority, it makes sense to see the different levels of the structure as being imbricated, mutually articulated.  Ideology, politics, law, etc., are constantly iterating different aspects of productive relations in their own idiom, constantly intervening, constantly constituting and being constituted by those relations.  And I would say that the fact that there is a juridical iteration indicates that it is already a superstructural phenomenon.  In itself, accepting this way of looking at it doesn't have to pose a problem for the Pashukanis school.  It is quite possible for this juridical iteration of the commodity form to be a superstructural form and still comprise the cellular structure of law.  However, this does allow us to displace the problem.  With Pashukanis, we're trying to locate the materiality of the law in a property of the infrastructure.  Instead, we can now think about ways in which the mutual articulation of infrastructural and superstructural levels determines both the form and content of law.  And that means, we can allow that the form of law is determined by more than one property of the infrastructure, by more than commodity circulation - we can introduce, at different levels of abstraction, productive relations, the social and technical division of labour, the geo-economic unity of a social formation, class struggle and so on.

Moreover, it enables us to think the continuity and discontinuity of law in a far more specific way.  In the Pashukanisian scheme, the emergence and persistence of law is coterminous with the emergence and persistence of markets and commodity trade.  What persists is the basic legal form. Similarly, the change taking place between pre-capitalist and capitalist legality is seen mainly at a quantitative level: ie, in a shift from localised instantiations of the legal form to its universalization.  I think something more than a quantitative shift takes place.  Even at the level of the commodity form itself, there is a qualitative transformation.  In precapitalist, 'simple' circulation, the relationship of commodities to the social division of labour, and thus the commodity relation itself, is completely different.  Many of the inputs of existing commodities have not themselves been commodified; labour has not been generally waged.  The transaction is much more directly determined by political force, or rather by traditional rules, by notions of a 'fair price' arising from religious and political intervention appropriate to feudal social relations, and so it is not necessarily an exchange of equivalents.  In fact, unequal exchange in buying and selling must be considered the norm in pre-capitalist commodity circulation.  The relation of equivalency only seems to operate where the law of value operates; that is, where exchange value understood as the amount of socially necessary labour time embodied in a commodity, is operative.  That is, the commodity form only assumes the form of the exchange of equivalents, requiring the abstract legal subjects which we are invited to see as the universal grammar of law, under capitalism.  It is not that certain formal aspects of the exchange - the act of production for exchange, the use of an exchange medium, the juridical iteration of the exchange relationship - don't stay the same.  It is that the formal aspect which is supposed to ground the legal form changes entirely.

This makes it, I maintain, the wrong axis of continuity.  I maintain instead that we must have an account of law that can incorporate pre-capitalist legal forms: theological jurisprudence such as Shari'a, law that is derivative of religious ritual such as Roman law, different forms of customary law, the Hammurabi Code, etc etc.  That is, an account of law that can comprehend forms which are not predicated on an abstract formally equal legal subjects, whose subjects are explicitly hierarchically differentiated, and which are associated with imposition (thesmos) as much as contract (nomos).  It must allow us to encompass the dense networks of legal relations which in precapitalist as in capitalist societies extend well beyond the sphere of commodity circulation and are decidely not equitable relations.  Such an approach will of necessity not permit the conclusion that bourgeois standards of equality are embedded in the legal form itself at its most abstract level, in its 'timeless structures'.  The legal relation is only infrequently in history one between equal subjects or between equal rights, and then only in a certain abstract manner relating to certain social classifications (citizenship).  Far more pervasively, it is a relation between unequal subjects - not just unequal individuals but corporate subjects, states, and so on - unequally endowed with rights and obligations. 

Law as ideology
The solution as I see it is to return to the concept of law as ideology; that is, as a particular element in a mode of production that is proper to the ideological superstructure.  Since the different levels and elements are always-already mutually articulated, their specific form and content (including the appearance of the 'relative independence', as per Franz Neumann, of the legal order) will depend on their articulation in a mode of production and the site of its realization, the social formation.  But that still leaves wide open the question of what kind of ideology it is, and why it takes form it does.  I have cited Althusser's claim that ideology comprises "material actions inserted into material practices governed by material rituals".  If one thinks of the actions of the police officer, the practices of the police bureaucracy, the rituals of the justice system (naturally, my mind gravitates toward HUAC, SISS, and other instances of ritualised repression, but arguably ritual governs the whole field), the action of the law does seem to conform to this characterization.  Of course, for Althusser, the materiality of ideology was inseparably coextensive with the materiality of the state: hence, ideological-state apparatuses.  So, it would seem appropriate to talk about the state.  To be frank, we cannot talk about law any longer without somehow referring it back to the state's constitutive action.

There is a misplaced concreteness that is invested in the state (including by Pashukanis), in which its materiality inheres in a machinery or instrument of domination.  But this spurious institutional determinacy, based on the 'public' kernel of prisons, armed men, etc., will not hold. The state spreads itself over a much wider field than this, and constitutes areas of life that are supposedly 'private' (in part through the very public-private binary that it sustains). The materiality of the state resides in the relations of forces that it condenses in its institutional sites of power and, through its practices, its action at various levels of the social formation.  Part of this action takes the form of symbolic production, moral regulation, the production of social classifications and, as a corollary, the punishment of symbolic and moral trespass, the disruption of its classifications, etc.  This means that violence is immanent to its action, whether or not violence is immediately deployed.  And it is in this sense that I argue that law occupies the position of an ideological relation within the state's strategic field.  It is in this sense that legality appears as both at one and the same time the dominant mode of legitimacy, of consensus, and the mode in which terror and repression is constantly brought to bear in shaping the social body.   

This brings me to my first attempt to say something definitive about law: Law is the dominant form of the dominant ideology concretized in practices which are permanently inscribed with political violence.  In saying this, I do not mean that the dominant ideology or the legitimacy of the law is simply uncontested.  Nor do I mean that the dominant ideology is just the ideology of a single class, and that therefore law is nothing but the execution of the 'will' or interests of that class.  Rather, it is through contestation and class struggle that the dominant ideology reproduces itself, not as a homogenous ideal substance but as a necessarily heterogenous formation comprising elements of popular ideology which have been absorbed and their oppositional character neutralised.  Poulantzas, strongly influenced by Gramsci, incorporated this into his theoretical architecture more successfully than Althusser.  To this extent, following Poulantzas, we can say that law is a juridical condensation of the relations of forces in the social formation that it rules.

But there is a peculiar characteristic of law as ideology, which is its imperative, axiological-deductive character.  Whether the law's application is 'deduced' from a civil code, a constitution, or from a body of 'common law', it takes the form of a chain of juridical logic, the unfolding of a set of determinations from a body of axioms and norms.  This is nothing other than a rationalized, predictable structure of domination and decision-making within the field of the state.  This rationalization is something that emerges from the double freeing of workers from the means of production, the social division of labour arising from this and the operation of the law of value as a homogenizing dynamic.  Its imperative aspect is accounted for by the immanence of political violence to its actualization.  Law in this sense is a mode of disciplinary power, an articulation of the dominant ideology (within a capitalist mode of production) with the political violence which secures its dominance

This brings me back to the question of formal equality.  I have said that law is usually not a relation between equal rights.  But the appearance of formal equality is not a bagatelle, not an optical illusion.  Rather, it does appear at different times in the sphere of legality, in certain forms of legal subjectivity.  Citizens are formally equal, even if capitalists and workers are not.  But it seems to me that this arises from the action of the political first and the legal second.  In terms of the formal equality prevalent in bourgeois democracy, it arises from a type of individualization created by the capitalist state.  The Pashukanis school argues that formal equality between empirically different individuals is strictly homologous with the formal equivalence between qualitatively different commodities.  In effect, (meaning, tendentiously put), the formal equality of individuals in law is a kind of exchange value of the subject.  But I think this takes for granted the individualization that it describes, and which forms the basis for the legal relation.

Either one must assume that the individuals thus mentioned are understood as 'biological' individuals (which I certainly think is implicit in Pashukanis, but is problematic because the existence of such individuals can in no way be just assumed), or the process of individualization must be assumed to have taken place through the commodity relationship itself (which I think is problematic because the relation between traders doesn't have to be a relation between individuals), or it must be something that emerges from the freeing of productive agents from territorial-personal bonds and the rupturing of the chains of signification cementing agents within that bondage. If it is the latter, as Poulantzas argues (I think convincingly), then this crucial link in the grammar of law is established by means of an effect of isolation which has roots in the atomization of productive agents in the capitalist division of labour, and is iterated at a juridico-political level by the capitalist state.  Thus, a capitalist type of individuality is produced.  And in the sense that individual subjects thus produced, juridico-political citizens, are all equally subject to the rule of law, formal equality prevails.  This is also simultaneously a totalising mechanism, inasmuch as these are subjects to the extent that they are incorporated within a national body, within the rule of law as such.

With this capitalist division of labour, the double freeing of labour from means of production, the replacement of tribute with the homogenisation of labour processes into abstract labour-time, comes a simultaneous granulation of social space into an imperfectly homogenised grid of locations (sites of production and consumption, as well as extended reproduction) in contrast with land-as-sovereign-body. The organization of production for surplus value entails rationalization, the bureaucratic standardization of units of space-time, the individualization and isolation of agents as competitive producers, the administration of production relations and thus of class antagonisms along scientific-rational and predictable lines. It entails the organization of political violence according to a system of rationalized axioms.  I think this accounts for the main chracteristics of law in its capitalist form.

This brings me back to the arguments from Thompson and Taylor which I was disputing at the start.  For they both correctly argue that the law is not just an instrument, but is also a field of contestation.  Yet they conclude from this that the law has a legitimate function which is the mediation of power, the suppression of violence, the containment of anti-social actions and so on.  What this misses is that law has this role only inasmuch as it is a mode of class domination: it only mediates class power inasmuch as it reproduces class power through its action; it only suppresses violence inasmuch as it is the organization of violence monopolized by the capitalist state; it only contains anti-social action in as much as the state defines, through the law, what is anti-social.  I said Thompson and Taylor don't fully break with the instrumentalist account of law and the state that they seem to reject, and this is true to the extent that their evaluations imply that the same apparatus can be inhabited and put to use by one or other class in support of any political objective; that any seeming structural selectivity is due to a misuse of the instrument which can be put right by proper use.  They also both greatly over-estimate and misunderstand the role of formal equity in the law.  It is not a promise that law makes, but which goes unrealised due to the distorting role of class power.  Rather, it is a juridico-political form which really does exist and is realised within the capitalist mode of production precisely as a mode in which the political and ideological dominance of the ruling class is secured.  That it is also the form in which this domination is provisionally and partially contested does not change this fundamental relationship.  To do away with class power is not to free law from its shackles and distortions, but to do away with law as such.