LINEBURG


<< . .

 27
( 38)



. . >>

“historical tasks” to realize, and the law was only one of the state™s
instruments for achieving those tasks. It was therefore entirely fitting that
the law should be set aside whenever it became an impediment instead
of an aid to the state™s proper activity: “Accordingly, while socialist
legality is constant and stable, it is nevertheless no set form, dissociated
from the conditions and tasks of the class struggle and socialist building:
it does not, therefore, negative the possibility of applying to class foes
extraordinary measures necessarily evoked by the conditions of the
class struggle and the resistance of class foes to the measures of soviet
authority.”81
Golunskii and Strogovich end their treatise with a conscientious review
of “bourgeois legal theory,” which they divide into three kinds: theories
that base law on divine authority, theories that base law on race or
nationality, and theories that derive law from a higher, independent
norm. All of them are found to have failed to recognize the relation of
law to real life. As legal norms are “instruments of the class struggle in the
hands of the dominant class” and are binding because “behind them
stands the exceedingly real authority of the state “ with its police, judges,
troops, prisons, etc.,” only “Trotsky-Bukharin wreckers” would deny that


79 80 81
Ibid., 388“89. Ibid., 391. Ibid., 393.
244 The idea of law repudiated

Soviet legislation consisted of “legal norms,” just as did bourgeois law.
But whereas bourgeois theory divides the human world from the physical
world and therefore denies that the “law of causation” is just as pertinent
to the human as to the physical world, under socialism the true source of
law in social relations is revealed because “The worker class, defending
the interests of all the toilers, has no need to conceal either the class
character of its legal norms, or to conceal whose strength establishes
and maintains them and whose interests they defend.”82
For Golunskii and Strogovich, it is a cardinal sin to suggest, as social
democrats did, that the law could be used to reorganize capitalism into
socialism without a revolution. And this was long accepted by Western
Marxists, who accordingly dismissed the law as an “ideological screen”
designed to mask the iniquities of capitalism. Marxists were obliged only
to expose the unreality of law. Since the Second World War, however,
Western Marxists have changed their attitude toward law. The change
was inspired partly by the Althusserian revision of Marxism, which em-
phasized that “ideology,” though produced by economic forces, in turn
influenced the organization of society. And it was inspired partly by the
recognition, promoted by the teachings of the Realist school of jurispru-
dence and the disposition generally to interpret law sociologically, that law
could be used to destroy the established legal system.
This new attitude to law led Western Marxists to comb Marx and
Engels for evidence that they had rejected economic determinism and
believed that law could affect the material structure of society.83 There
followed a flood of anthologies and discussions of what Marx and Engels
wrote on law. Another curious consequence was the restoration of
Pashukanis as the leading Marxist theorist of law on the ground that in
order to use the law effectively, it is essential for Marxist revolutionaries
to understand the distinctive character of law. There was no serious effort
to deal with the conflict between the view of law as an instrument of
revolution and the basic tenets of Marxism. Any such question was simply
dismissed with the argument that “law is appropriate as an object of

82
Ibid., 423“24.
83
See Maureen Cain and Alan Hunt, Marx and Engels on Law (London: Academic, 1979),
xiii. A similar effort to deny Marx™s view that law is “merely” ideology appears in
C. Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and
Law (London: Academic, 1979). The current restoration of Pashukanis to favor is evident
in P. Bevine and R. Sharlet, eds., Pashukanis: Selected Writings on Marxism and Law,
trans. Peter B. Maggs (London: Academic, 1980). There are, besides, a number of
anthologies that do not concentrate on Marx, but have select readings that display a
conception of law as an “instrument of social control”: C. M. Campbell and P. Willes,
Law and Society (Oxford: M. Robertson, 1979); V. Aubert, Sociology of Law
(Harmondsworth: Penguin, 1969).
Marxist theories 245
struggle provided that the real material object to be achieved is not lost
sight of, that the legal formulae are not fetishized.” Law was still de-
scribed as an instrument of class rule, but this definition was turned on its
head to prove that even under capitalism, the working class may as easily
make the law serve their purposes as do the capitalists: “Marx argued that
the bourgeoisie, having established and fixed a political arena, is con-
strained by its own rules of legality, its own ideology. Although this
constraint is not absolute, but is itself a function of political pressure, it
means that there are moments when the workers achieve more by using
the law than is possible even for the dominant classes. Means, like law, are
created in order to be exploited, used, in political action. The working
classes too can play this game, but neither side, least of all the working
class whose conceptions and purposes are not embedded in the law, can
afford to mistake the means for its real concrete objective.”84
At the same time, the Marxists who repudiated “economic determin-
ism” and urged that the law be used to destroy capitalism argued that
the working class is necessarily engaged in a struggle with the capitalist
class and that every human idea must be understood as an instrument of
power. But as these convictions rest on a Marxist understanding of
human beings, they are incompatible with expecting the law to determine
social relations because then the law can only be an instrument of the
ruling class. If the Marxist understanding of man as a “species-being”
is rejected, the reason for preferring communism to capitalism disap-
pears. In short, the effort to reconcile Marxism with law cannot escape
self-contradiction.
There is a fatal self-contradiction even in the highly ingenious efforts of
Pashukanis to acknowledge that bourgeois law treats workers and capit-
alists alike. For if it is possible for capitalism to coexist with a state that is
not an instrument of the ruling class, as Pashukanis™s account establishes,
then the Marxist™s conception of human beings and history (which Pa-
shukanis retained) must be false. But the Soviet doctrine that replaced
Pashukanis™s theory is hardly more consistent in maintaining that the
dictatorship of the proletariat is a form of law. That doctrine not only
travesties the idea of law both in theory and by the practices that it entails,
but also contradicts the Marxist view of history as a process in which each
stage necessarily has a different form of political organization.
Indeed, the only view of law that a Marxist can hold at all consistently
is that of Marx and Engels, who said very little about law just because
they dismissed it as an epiphenomenon, a “superstructure,” or “ideology”


84
Cain and Hunt, Marx and Engels, 214, 217“18.
246 The idea of law repudiated

that merely disguises the real struggle for power. Of course, they could not
explain why “ideology” should have taken such a bizarre form under
capitalism. Nor could they acknowledge the existence of law in societies
as diverse as ancient Greece and Rome, or medieval and modern Europe.
But they did recognize that the individuality of human beings, their
character as independent agents who choose what to do and be, is intrin-
sic to the idea of law because the law imposes a unity that does not destroy
the pursuit of independent projects. If, however, “labor” is taken to be the
distinctive human activity, and human life is supposed to be governed by
“the productive process,” and if man is understood as a “species-being,”
as Marxism teaches, it follows that men are not independent agents.
Independence becomes a disease, a pathological “alienation” from the
organic unity that is the natural condition of mankind. As the rule of law
postulates that such an organic unity is neither natural nor desirable, the
only consistent Marxist conclusion is that the rule of law must be repudi-
ated. Although the Marxist conception of man as a “species-being” has
never been explicitly adopted by writers who have either deliberately or
implicitly rejected the idea of law, the unselfconscious spread of this
understanding of human beings made the repudiation of the traditional
idea of law comprehensible and plausible. At the very least it accounts for
much of the confusion that has bedeviled reflection on the idea of law in
the late twentieth century.
13 Political jurisprudence I: From Realism
to feminist jurisprudence
_____________________________________________________________________________________________________________________________________________________


The Realist criticism of law which was being nurtured in the 1930s
flowered after World War II into what H. L. A. Hart calls “the nightmare
theory of law.” It dismissed the conventional image of the judge as an
objective and experienced declarer of law, who could and should be
sharply distinguished from the legislator, as “an illusion” which was
bound to disappoint the expectations which it excited.1 By the 1960s,
the attack on the distinction between judges and legislators became dra-
matically more far-reaching. Instead of being concerned with merely
destroying the myth that judges decided cases in terms of fixed rules,
jurisprudence became preoccupied with discovering an altogether novel
understanding of adjudication. This effort was most marked in the United
States, where discussion concentrated on political scientists™ studies of
the role of the Supreme Court in constitutional review. But the conclu-
sions carried, and were meant to carry, much broader implications for
adjudication generally and for the nature of law.
The new school became known as “political jurisprudence.” They
agreed with the Realists that the law consists in the decisions of judges
rather than in the contents of statute books. But political jurisprudence
added a new insistence on treating judicial decisions as part of the polit-
ical process. It emphasized that the courts do not belong to a sheltered
legal haven; that they are not a “unique body of impervious legal techni-
cians above and beyond the political struggle,” that they are merely one
government agency among many, a part of the American political pro-
cess. Rather, the courts serve as a political battleground, and the judge is a
politician acting upon and being acted upon by other political forces. And
this is what the courts must and should be in an age of “positive govern-
ment.” It follows that the search for judicial neutrality is a futile quest,
and that the concept of a political court has to replace the concept of a


1
H. L. A. Hart, “American Jurisprudence through English Eyes: The Nightmare and the
Noble Dream,” Georgia Law Review 969 (1977): 972.

247
248 The idea of law repudiated

court of law.2 Attempts to find impartial legal standards for judicial
decisions are dismissed for being inspired by nostalgia, by the childish
vision of law with a capital “L” that prevailed in the past. They are
condemned for refusing to face the truth that the courts cannot avoid
satisfying one interest at the expense of another and that there can be no
single, accepted standard for balancing interests. Since the judge is bound
to decide according to some preestablished hierarchy of values or social
goals, he necessarily decides which social preferences or goals will be given
priority.
Against the old-fashioned, “idealized” view “ that justice can be blind
and provide an even-handed application of known principles to known
facts “ political jurisprudence summons witnesses from all fields of
learning in all ages, each holding widely different opinions: Plato, Karl
Manheim, Gunnar Myrdal, Michael Polanyi, Reinhold Neibuhr, Herbert
Butterfield, Alfred North Whitehead, and Isaiah Berlin are all called in to
testify that neutrality or objectivity is unattainable, both in the social
sciences and in the natural sciences, since even facts involve a judgment
of value. Because every human activity involves a choice among values,
and because such choices are determined by the biography and heredity of
the man making them, a wholly disinterested person or activity is impos-
sible. The Supreme Court of the United States has rewritten history just as
much as Soviet Communists have; the dissenting opinions of Holmes,
Brandeis, and Stone in the late 1930s were no more neutral than the
decisions that had earlier developed the substantive due process doctrine
from the economic theories of Adam Smith and David Ricardo.3
Although the advocates of political jurisprudence acknowledge that many
cases are decided in accordance with “principles derived from past experi-
ence,” they point out that the most important decisions are made in those
areas of law where judges are divided by conflicting values. In such areas,
only those whose battle has already been won plead for judicial self-
restraint and insist that the function of the court is to defer to the
legislature. They do so because the legislature is promulgating just what
they want.
But even if judicial neutrality is impossible, objectivity can still be
preserved, political jurisprudence argues, by requiring the judge to set


2
Arthur Miller and Ronald Howell, “The Myth of Neutrality in Constitutional
Adjudication,” University of Chicago Law Review 27 (1960): 689, 659; M. Shapiro,
Law and Politics in the Supreme Court (London: Macmillan, 1964), 23.
3
Miller and Howell, “Myth of Neutrality,” 665, 682“83, 675. See also: W. Murphy,
“Lower Court Checks on Supreme Court Power,” American Political Science Review 53
(1959): 1017.
From Realism to feminist jurisprudence 249
out “in explicit form his value preferences as he understands them.” If
that were done, the “resulting judgment, were it not for the semantic
problem, might even be termed ˜objective™.”4 To explain and promote
this view of the courts, we now need a teleological jurisprudence that is
“purposive in nature” rather than “impersonal” or “neutral.” Such a
jurisprudence would reject the old mechanistic view of the social process
and try “to provide purposive direction to the flow of social events.”
Teleologic jurisprudence recognizes that the nature of government has
changed and that many of the jobs once done by the three traditional
branches of government are now being done administratively. The legis-
lature merely formulates “broad policy guidelines for the conduct of our
government” and it is the executive and administrative agencies that relate
these guidelines to the complex facts of everyday life. In the same way the
courts have lost power. They now decide only the pathological case that
eludes the other branches of government or involves a “clash of values.”
In settling cases of the latter sort, the court acts “as a national conscience
for the American people” and articulates “a broad norm” that transcends
the particular dispute and provides a standard “toward which men and
governments can aspire.”5
All this happened, we are told, because nowadays “a dwindling minor-
ity of Americans espouse views of laissez-faire,” and the old agreement on
goals, postulated by laissez-faire, no longer exists. We have to recognize,
the advocates of political jurisprudence urge, that the “social process” is
not governed by something called reason, as jurists once believed, but “is
a set of interlocking and interacting power relationships.” These power
relationships have changed because those who had been suffering have
now become numerous and strong enough to exercise considerable lever-
age. And their political battles have become judicial in nature, which has
turned the courts into a political battleground. In the new picture, reason,
far from being the life of the law, is merely the language of political battle,
and the court is “a power organ which aids the shaping of community
values.” The only question is whether it does so avowedly or abashedly.
The court is part of a welfare state, and it cannot avoid being concerned
with welfare. It can choose only whether to do so chaotically or explicitly
and systematically.6
A court that clearly recognizes this will see that the most important
question about a judicial decision is what effect it has on the realization
of “societal values.” Such a court will see that disputes “should avowedly


4
Miller and Howell, “Myth of Neutrality,” 683, 678.
5 6
Ibid., 693, 685, 687. Ibid., 687, 689.
250 The idea of law repudiated

be settled in terms of the external consequences of their application.”7
In decisions on antitrust laws, for instance, the judges would act as
“political economists engaged in solving problems of economic organizat-
ion” and would exercise “a freewheeling economic power.”8 To guide the
judiciary in this operation, there are a number of suggestions, including a
“law of human dignity”9 and a “jurisprudence of welfare.”10
All advocates of political jurisprudence pride themselves on rejecting
the old “phonograph theory of justice” and replacing it with an “affirma-
affirmative jurisprudence.”11 But this does not mean, they insist, that the
judge will become arbitrary. It means that the judge will be “engaged in
˜operational analysis™ “ in purposive directional thought “ which is both a
recognition of the creative nature of his job and a consideration of the
forces that limit that creativity.” Nor does it mean that the judiciary will
become subservient to the state: “The judge may as easily act against the
State as in support of it.”12
The new political jurisprudence goes much further than its Realist
predecessors in rejecting the traditional view of law. Even Thurman
Arnold, Realist though he was, acknowledged some virtue in what he
called Professor Hart™s theology: Without “the shining but never com-
pletely attainable ideal of the rule of law above men. . . we would not have
a civilised government. If that ideal be an illusion, to dispel it would cause
men to lose themselves in an even greater illusion, the illusion that personal
power can be benevolently exercised.”13 But the advocates of political
jurisprudence do not believe that despotism is the only alternative to the
rule of law, and they insist that what is expedient for the community
provides a “more viable point of departure for a jurisprudence of the age
of the positive state.”14
Outright calls for a political jurisprudence are supplemented by
more sophisticated suggestions for concentrating on an analysis of the
problem of language and power by using a combination of semiology,
phenomenology, and Marxism, by consulting the work of writers such as
Levi-Strauss, Habermas, Barthes, and Althusser. Still other suggestions
concentrate on explaining that legitimacy is only one “possible kind of
effect of casting a political decision in legal form,” the virtue of which has

7 8
Ibid., 691. Shapiro, Law and Politics, 48.
9
M. S. McDougal, Perspectives for an International Law of Human Dignity, American
Society of International Law Proceedings, 1959.
10
A. H. Pekelis, Law and Social Action (Ithaca: Cornell University Press, 1950).
11
Miller and Howell, “Myth of Neutrality,” 692.
12
Ibid., 693.
13
T. Arnold, “Prof. Hart™s Theology,” Harvard Law Review 73 (1960): 1311.
14
Miller and Howell, “Myth of Neutrality,” 695.
From Realism to feminist jurisprudence 251
been vastly exaggerated, thus preventing “a more painstaking examin-
ation of the real factors which explain conforming behaviour.” Or we are
told that law should be regarded rather as a factor in the production of
collective goods that depend on “mutual coercion.”15 But however much
their programs differ, all these suggestions make a point of explicitly
denying the distinction between a legal and a political decision that is
central to the traditional idea of law.
The reduction of law to politics appears to be strongly opposed by
those who have been trying to find new ways of establishing the objectivity
of the law. These writers assume that doubts about the objectivity of
judicial decisions arise from the lack of adequate statements of the criteria
that govern adjudication, and they devote themselves to spelling out
such criteria.
One of the more conservative suggestions is that of Professor George
F. Christie, who argues that what is wanted are “fixed reference points”
for legal reasoning that can be found in uninterpreted statutes and cases.
He suggests that for the traditional question, Which is the true or correct
rule for which a case or group of cases stands? we substitute the question,
What factual differences distinguish one group of cases from another?
This would reduce disputes about judicial decisions to “disputes about the
significant factual differences among cases,” which is a question that can
be answered much more easily. Rigid adherence to precedent is not
desirable, but because the court is required to demonstrate a plausibly
significant difference in the facts of two cases that it proposes to decide
differently, past cases cannot be lightly overruled.
Despite his concern for objectivity, however, Professor Christie does
not exclude altogether the influence on the judge of personal values and
goals. Since law is a purposive activity, he says, it must be founded on the
human preferences and values often grouped together under the rubric
“policy.” One can only place limits on the judge™s attempts to promote the
goals and policies he favors: “In deciding new cases in accordance with
the model, courts inevitably must and do legislate, but they can do so only
in a restricted and stylised manner.”16 That Professor Christie™s concep-
tion of law seems to differ from that of political jurisprudence makes it all

15
Cf. Mark Tushnet, “Post Realist Legal Scholarships,” Wisconsin Law Review (1980):
1383; R. Cover and O. Fiss, The Structure of Procedure (1979); Karl Klare, “Law-Making
as Praxis,” Telos 123 (Summer 1979): 40; John Griffiths, “Is Law Important?” New York
Law Review 54: 339. The plausibility of political jurisprudence is re-enforced by such
studies as J. A. G. Griffith™s The Politics of the Judiciary (London: Fontana, 1977),
designed to show the many ways “in which the judges can fulfill their political function
and do so in the name of the law,” p. 216.
16
George C. Christie, “Objectivity in the Law,” Yale Law Journal 78 (1969): 1311.
252 The idea of law repudiated

the more striking that he goes so far toward accepting its view of adjudi-
cation.
A more ambitious program for objectivity has been proposed by Pro-
fessor Richard Wasserstrom. The problem, as he sees it, is to provide
“natural” and “individualistic” adjudication that is at the same time
objective. That a mechanical application of fixed rules and regard to
precedent cannot provide justice has, he argued, always been recognized.
Although that sort of decision “procedure” can provide certainty and
efficiency, it applies legal rules to cases for no better reason than that they
are extant legal rules. If the object is to dispense justice, it is obviously
undesirable to apply rules in this manner because “the sterile unfeeling
application of extant laws,” which ignores the merits of each particular
case, cannot secure justice. And that is why it has long been felt that only
the procedure of equity, where each case is decided without reference to
rigid rules and precedents, produces justice.17
But this conviction has not been found generally acceptable, Professor
Wasserstrom says, because in the past those who advocated equitable
procedures assumed that the only basis for such procedures was intuition.
Since intuitions are essentially private affairs, there can be no evidence
for the correctness of the conclusion other than that the ˜intuitor™ believes
that he has had the proper intuition. Experience has shown that some-
thing more stringent is required to save us from arbitrary rule. Neverthe-
less, all is not lost. The benefits of an equitable procedure can be had
without the drawbacks, Professor Wasserstrom suggests, if we accept a
two-level system of justification.
In such a system, the court would be required to justify its decision, just
as in the traditional view, by appealing to some legal rule. This insistence
on invoking a rule to justify a decision would replace the amorphous
intuitions of other proposals for equitable procedures. But appeal to a

<< . .

 27
( 38)



. . >>

Copyright Design by: Sunlight webdesign