In
most of the world, including most of the first world, Marxism
- or some
variant thereof - is seen as the core left ideology. How does
- or did
- Marxism play out in U.S. legal theory? I argue that Marxism
both
influences and explains the limits of Legal Realism, Critical
Legal
Studies (CLS) and feminism. I omit a discussion of feminism in
this
article because I am not a woman and respect essentialism and
have
discussed the definite influence of Marxism on feminism in
U.S. legal
theory elsewhere.
1
Marxism clearly informed U.S. left legal theory, and it did so
to a
deeper extent than was admitted or acknowledged at the time by
various
proponents of the theories examined. The obscurantism was
likely
because Marxism is so antithetical to the free market liberal
economic
assumptions that were the basis of the U.S. revolution.
Marxism in the
U.S. remains a theory that dare not speak its name.
The
origins of CLS are to be found in the American legal realist
2
movement
of the 1930s.
3
The underlying contradictions of American democracy were
revealed by
the worst economic crisis in American history. The reactionary
jurisprudence of the U.S. Supreme Court led President
Roosevelt to
attempt to pack the Court. U.S. Supreme Court justices enjoy
life
tenure and cannot be
removed
from office.
4
However, the U.S. Constitution is silent as to the number of
justices
that make up the panel.
5 Since Roosevelt could
not remove the
justices whose constitutional interpretations were undermining
the
relief policies of the New Deal (a program to install a modest
welfare
state in America - social democracy), he attempted -
unsuccessfully -
to appoint many new justices.
While
the President's attempts to "pack" the court (perfectly legal,
although unorthodox) failed, his message did not. After the
court-packing incident, the interpretations of the Court
became
markedly less hostile to the exercise of federal power, power
first
exercised in the name of ending the depression and then later
in the
name of fighting and winning the Second World War.
At
the same time these judicial manoeuvres were going on - and in
part
because of them - a new school of thought known as Legal
Realism arose
in the United States.
6 Legal Realism was the
intellectual
forbearer of Critical Legal Studies. The object of this paper
is to
discuss the relationship among Legal Realism, Marxism,
Critical Legal
Studies, and Postmodernism.
Legal
Realism proposes a simple yet radical alternative view of
legal
interpretation. Recognizing: 1) the arbitrary
7
character of judicial interpretation
8 (which
manipulates
9
concepts and people
in
order to rationalize
10 a result
preinscribed in the judge's
origins and class interests, 2) the multiplicity of possible
interpretations, and 3) the Realpolitik of appointed tenured
power, the
Legal Realists argued that formalist
11
interpretations were in fact
defective. According to realists, judges should balance
12
competing interests rather than rely on an impossible
deduction from
ambiguous, vague, and contradictory general principles.
13
This
shows the positivist influences on legal realism. Though legal
realism
is correctly seen as a
"left" legal theory,
seeking to
criticize open-ended unbridled capitalism,
14
it in fact can be linked to the
thought of the conservative justice Oliver Holmes. Justice
Holmes
believed that law was nothing other than the power of the
state to
coerce behavior. And while Justice Holmes's thought was
definitely
conservative, his positivism represented a radical break in
traditional
judicial interpretation. For Justice Holmes, prior theories of
interpretation, based on a natural law or natural justice
theory of the
eternal and unchanging nature of universal justice, were
nonsense.
Realism, one form of positivism, replaced natural justice (a
moralistic
theory that states that in order for all law to be valid and
effective,
it must be just) with natural law (the law of the jungle) as
the
dominant legal ideology in the United States.
Natural
law theories have
thus been eclipsed by amoral theories which are proposed as
purely
positivist and thus scientific; but those supposedly
positivist
theories are in fact only variants of Hobbes's theory of
natural law -
that the natural law is the law of the strongest.
Once
the equivalance between natural
law (the law of the
jungle) and
positivism
15
is cognized, many of the blind alleys in legal theory which
characterized Twentieth Century U.S. legal discourse
16
are
moved to their proper field--the debate between two
naturalistic
theories--natural law
17 and natural
justice,
18 and
the relationship between them. The correct view is
Aristotle's:
positivism (convention) and naturalism (universal law) are
complementary, not dichotomous. Hobbes similarly argued that
lex
naturalis, the law of the jungle, and
jus naturalis,
natural justice, are complementary. Aristotle saw positivism
and
natural justice as complementary, not contradictory. For
analytical
purposes, positivism may try to separate law from morality,
but a
proper analysis reveals that positivism collapses into
Hobbes's
lex
naturalis (the law of the jungle) or Aristotle's
nomos
(law
arising out of convention as opposed to innate in nature).
Positivism
versus
natural law is a false dichotomy.
Nonetheless,
since contemporary legal discourse consistently uses the
inaccurate
term "positivism," so will I. However, when I use the term
lex
naturalis, I am referring to the theory that law is
effective
because of force or the threat of force, whereas when I use
the term
"natural justice," I am referring to the theory that law is
effective
only when just, i.e., the less just the law, the likelier it
is
to be
disobeyed. Theories
of natural justice propose that an essential characteristic of
"law"
is that it is just-- that unjust laws are not laws at all (
lex
mala,
lex nulla).
The
Legal Realists perceived the authoritarian (positivist) nature
of legal
decisions: that judges impose law on litigants and future
instances.
From this (and from its relativist moral theory), Legal
Realism
proposed that the judicial decision is only a subjective
expression of
a judge's preferences-- that legal decisions are circular,
19
tautological, and not an objective expression of "reality."
20
Thus,
to determine how judges make their decisions, rather than
looking at
law books
21
in search of judicial deduction,
22 the Legal Realist
would suggest an
examination of the class origins of the judge and the
litigants. Per
the critique, the inductive-deductive theory
23
inevitably collapses into the will
theory, the idea that law is legislative fiat. I use the term
"class"
to refer to an arbitrary but objective classification of
persons
according to wealth, race, gender, sex, religion, and sexual
orientation. Although "class" in English generally implicitly
refers
to
economic class, I use
the term "class" more broadly, partly because race is a proxy
for
class in the United States, and also because class based
analysis must
include gender to accurately assess oppression.
In
addition to drawing on class-based analyses for legal
reasoning, the
Legal Realists
24
also introduced psychological analyses to legal reasoning.
Rather than
seeing the judicial decision as a logical, objective
expression of
truth, the legal decision was seen as a subjective
rationalization of a
structure of class relations. Because of this subjectivist
strain of
realist interpretation, the realist account of judicial
decisions is
often dismissed or mocked as presenting a "breakfast table
theory"
25-- that
the judicial decision is so subjective as to be the
consequence of the
judge's indigestion. However, while Legal Realism can be
rightly
criticized methodologically for substituting one arbitrary
decisional
method (balancing tests) for another (bright line
decision-making), it
cannot be dismissed out of hand because it was (and is)
influential.
The
class-based analyses used by Legal Realism parallel those of
Marxism
and recur later in Critical Legal Studies. However, since
neither Legal
Realism nor Critical Legal Studies have overtly declared
themselves to
be neo-Marxist, we shall analyse Marxism separately in the
following
section. This schema of analysis is justified by the
geographical
separation of Soviet Russia, though Legal Realism and
Stalinism were in
fact co-temporal.
In
sum, while Legal Realism succeeded in pointing out the
systemic
contradictions which plague capitalism, it did not determine
the
correct sources of those contradictions and thus disappeared
from
roughly 1950 to 1970.
Marxist
legal theory is unfortunately largely ignored in American
legal
reasoning. This is hardly surprising, though disappointing.
The
first principle of Marxist legal theory is a fundamental
opposition to
law. The law, for a Marxist, is a barbaric expression of state
power
and as such must be transformed. Proletarian dictatorship is
thus
intended as a temporary condition to enable the reform of the
capitalist class and allow the state to evolve towards
socialism
(collective ownership of the means of production) and
ultimately to
disappear as it is gradually replaced by voluntary communism.
26
The
teleological framework of historical materialism explains the
limitations of Legal Realism. Legal Realism, in its own terms,
cannot
explain or predict the historical or future direction of
society. Thus,
when the second inter-imperialist world war ended, the Legal
Realists
failed to understand that the temporary peace and prosperity
of the
immediate post-war era was founded on the slaughter of the
unemployed.
Legal Realism failed to identify the historical dialectic that
had
created it, and thus Legal Realism disappeared as a
theoretical
movement in U.S. law.
Socialist
Legalism is the theory that, while laws are only temporary
instruments
intended to advance the state towards socialism, they must -
for this
very reason - be interpreted objectively. The rule of law in
the Soviet
state was always subject to the reasoning of dialectical
materialism--that law operates within political constraints,
and that
law can and should be replaced, but can only be replaced as
the state
evolves toward communism. In order to avoid reactionary
backlash,
capitalist restoration, and a recurrence of imperialism, the
conscious
evolution of society away from the state and toward voluntary
communism must
be
structured by law. Thus contextualized, the Soviet state was
based on
socialist legalism--the formal (not substantive) rule of law.
Marxism
regards law and legal interpretation as objective historical
phenomena,
unlike Legal Realism.
Marxist
theories of law seem most effective in the area of criminal
law. Late
capitalist regimes fail to provide coherent rationales for
their
criminal systems. Wavering between theories of deterrence,
retribution,
and occasionally prevention, capitalist systems of criminology
at best
toy with the idea of rehabilitation. Arbitrary and unequal
sentencing
conditions, racism, and violence characterize capitalist penal
systems.
Further, prisons offer dirt cheap exploitable labor. As a
consequence,
the American prison system is now the largest on the planet:
27
prison
is profitable for certain industries due to cheap labor. Who
cares
about labor standards for criminals? The prison industrial
complex also
provides jobs for construction, security, and production of
police
accessories--such as handcuffs. In other words, there is big
money in
repression.
Marxist
penal theory has a different rationale. Rather than the
exploitation
and punishment of the criminal, the object of Marxist penal
theory is
to help the criminal understand their crime and its antisocial
character.
28
Marxist penal theory correctly focuses on rehabilitation and
reform, on
the (re)education of the prisoner and their (re)socialisation.
29
The
Great Depression is one example of capitalism's failure.
Business
cyclicity led to mass unemployment, unrest, and ultimately
another
world war. One consequence of these upheavals was Legal
Realism.
The
Vietnam War is another example of capitalism's failure.
Vietnam was
another war for markets and resources resulting from business
cyclicity--Vietnam produces oil and rubber. Iraq is a more
recent
example of oil war under imperialism. These crises illustrate
a serious
defect of capitalism: it encourages war for profit and wages
war on the
third world for resources and market-share. Just as the
capitalist
crisis of the 1930s gave rise to Legal Realism, so too the
failed
imperialist war in Vietnam gave rise to Critical Legal
Studies. Where
will the failing wars in Southwest Asia lead?
Critical
Legal Studies (CLS) started where Legal Realism left off:
rules are
arbitrary and in fact are the imposition of the will of one
class upon
another class.
30
However, CLS is more strident in tone. While Legal Realism
looks for
symptoms of capitalist failures in the judicial system,
Critical Legal
Studies looks deeper, to the causes of those symptoms. In
other words,
CLS looks somewhat neo-Marxist.
Because
capitalist economies are cyclical and have a natural rate of
unemployment,
31
an honest analysis will recognize that capitalism requires an
industrial reserve army (Marx). Capitalism leads to war
because of
cyclical downturn and to guarantee cheap access to raw
materials
(Lenin) and markets. Capitalism also tends to ever larger
concentrations of wealth in monopolies (Marx) because of
economies of
scale. Examples of monopoly capital include Rockefeller's
Standard Oil
and Microsoft. Unfortunately,
Adam Smith did not recognize or address
cyclicity
and monopoly, at least so far as I have read. While Smith's
competition
theory may work in small-scale, semi-feudal economies, it does
not work
in large-scale industrial economies.
This
is not to denigrate Smith's genius in pointing out the
increases in
productivity that result from specialization, as well as the
mutually
advantageous character of trade. Capitalism was progress
relative to
feudalism - but is not the final state of history. Marx may
have
underestimated the power of technology to increase
productivity and the
ability of capitalist institutions to reform away the worst
consequences of economic cyclicity since 1945. Perhaps
liberalism will
succeed in its effort to replace the state with civil society
and even
to introduce voluntary communism through open-source and
charity. In
all events, Marx was clear, that capitalism is progress
relative to
feudalism, but equally clearly believed that capitalism was
not the end
of history.
32
Property regimes arise within a given mode of production and
are
transformed as one mode of production is replaced by another
in the
progressive movement of history toward increased prosperity
through
greater production and technical innovation. The end of
history is the
good life for
all people.
CLS
can only present a truly radical critique if it moves beyond
mere
trashing and presents positive agendas for change. Currently,
most CLS
discourse is negative: it opposes the existing system without
proposing
alternatives. These alternatives could be economic (e.g.,
interest-free
banks--which are the norm in Islamic states) or political
(e.g.,
electronic democracy). However, unless we consider the
inherent
problems of a for-profit, private enterprise economy, our
critiques
will be ineffective. In other words, just as the great
prosperity of
the 1950s (and McCarthyism) effectively silenced Legal
Realism, so the
great prosperity of the 1990s temporarily silenced CLS. The
current
economic crisis and wars for oil may well change that.
How
are the questions of the machinations of radical American
legal theory
pertinent to Postmodernism? For Postmodernists, the problems
of the
identity and objectification of the legal subject are key
legal
questions.
33
Postmodernism uses deconstruction
34 - derived from the
Frankfurt school
- and post-structuralism to critique liberal law.
35
It
abandons universalism and constructs individuated narratives
in an
admittedly vain attempt to capture an inherently ineffable
reality.
36
Postmodernism
is widely
criticized
37
- by both the left
38 and the right - for
being
ill-considered,
39
subjectivist,
40
and sophomoric
41
jargon
42--in
short, for being "an academic joke."
43
Postmodernism invites such criticism
because it rejects the correspondence theory of truth and
instead
argues for an intersubjective model wherein truth is socially
constructed by consent.
44 The intersubjective
view of truth is
incorrect; if we all agree that the earth is flat, it
nevertheless
remains a sphere.
Postmodernism
proposes a world where all values are arbitrary,
45
where
meaning is relativized and contingent,
46
and thus where there is no objective
morality. In so far as these ideas
were proposed by David Hume,
47
Saussure,
48
Nietzsche,
49
Willard Quine,
50
and Goedel,
51
they are in fact expressions of epistemological puzzles, which
have
plagued modernity since the Eighteenth Century.
Postmodernism
can, however, distinguish itself from modernity in that the
modernistic
discourse since the Industrial Revolution centers on
productivity, a
universal grand narrative of "progress," and replication,
52
a
narrative Postmodernism rejects.
Marxism,
in contrast, is a theory of modernity.
53
Marxist theory is not morally
"neutral" or relativist, and correctly focuses on progress as
a valid
goal because three-quarters of the planet is ill-housed and
ill-fed.
Postmodernism
does however offer the opportunity of proposing radical
critiques of
late capitalism. "[M]any postmodernists, especially
deconstructionists,
are overtly political."
54 Postmodernism
appears to offer
grounds for radical critique. However, that appearance is
mostly a
mirage.
Postmodernism
gives a voice to the ordinarily voiceless!
However, PoMo
does not listen to that voice, because
all opinions are valid, and because there are no universal
values.
Everyone has a voice--and it is meaningless.
55
Postmodernism
places all existing thought structures in question!
By
the rejection of moral principles and objectivity--which
deprive the
voiceless of real impact.
56
In
short: Postmodern thought permits one to pose questions, but
does not
enable anyone to find answers. Postmodernism does not and
cannot lead
to a powerful critique of the systemic causes of tragedies
such as the
Great Depression and the Vietnam War due to individualism,
subjectivism, and relativism.
Postmodernism's
best hope then is to be a window for critical discourse which
rejects
the moral spinelessness which characterizes Hume and his
heirs. The
error of imperialist thought constructs is not moralism, but
the wrong
moralism. Should anyone wish to debate the existence of
universal moral
principles, let them ask themselves how they would react at
the violent
death of a loved one--say, in the interest of some
multinational
cartel's board of directors. If seduction and subversion are
postmodern
tactics then Marxists should (Oh my! Normative disourse!)
co-opt these
tactics by calling into question the moral emptiness which
characterizes relativistic discourse.