Thursday, 8 January 2009

Bob Fine on Law and Class – Pt 2

This section of the chapter by Fine delves a little into the work of Evgeny Pashukanis.

For him one of the most significant features of Pashukanis’ work (apart from his stressing of the necessities of looking at both form and content of law as we previously discussed) is that it was opposed to beliefs associated with Stalinism that the “maintenance of legal forms in the Soviet Union was not a necessary hang-over of bourgeois forms of regulation, destined to disappear with the growth of communism, but the first expression of the development of ‘proletarian law’”(pg.34)

Fine then goes on to compare this to the approach of Durkheim “…who presented law and punishment as the expression of the ‘collective conscience’ of society and as the functional prerequisite of social order. Thus Durkheim idealizes the form of punishment, as a ‘public power’ acting in the name of society, and distinguished from the private will of any individual or group within it. Similarly, crime is presented as a violation of this collective conscience, closely associated with egoism and lack of control.”(pg.34) Fine argues that Pashukanis sees in this approach an ahistoricism and a ‘formalism’ that ignores the content of the law.

He then briefly discusses how this is similar to some so-called Marxist criminologists such as Willem Bonger who’s main criticism was not directed at capitalist law itself but “the intrusion of class distortions into its practice; for example, by the confinement of political prisoners.”(pg.34)

Fine goes on to say, “In contrast, a sociological approach which looks to the economic and political interests behind specific legal and penal measures appears as a significant advance over the high-sounding phrases of formalism. But here again there is a disappointment. For exclusive attention is directed towards the class interests served or the economic functions performed by one or other measure of law or punishment; in other words, exclusive to the question of content. Why these interests or functions should have been served by the legal form of regulation or by penal repression remains a question unaddressed. So that, while a more or less adequate political or economic history may be gleaned, there is no concern with law and punishment themselves as historical forms of domination. For example, it is not sufficient to explain the proliferation of confinement in the seventeenth and eighteenth centuries by its functionality for the growth of capitalism, through its provision and disciplining of forced labour. Whether or not this is true, it does not explain why forced labour was provided through the forms of punishment, and say slavery, indentured labour, press gangs, direct dependence on the manufacturer, and so on.”(pg.34-5)

To Fine this is the opposite mistake to E.P. Thompson’s of exclusively focussing on form. By talking purely about content, form is either ignored or seen as a ‘mask’. He adds “Since the question of form is neglected, the limits which particular forms impose on the performance of a particular content cannot be conceptualised…”(pg.35) Alternatively, given forms can become eternised with punishment forever existing, but changing in content in different periods.

Fine moves on to discuss some of Marx’s analysis of penal law, as this has been a starting point for some ‘Marxist’ criminologists. He states, “In discussing the emergence of the proletariat, Marx emphasises the role played by law in expropriating and disciplining the available labour force. But Marx is not concerned with law as such, only with its effects on political economy. One cannot jump from a position which analyses the important functions performed by, for instance, penal statutes on vagrancy for primitive accumulation to an analysis of these laws in terms of their functionality for the development of capital. What is legitimate for a study of political economy is not legitimate for a study of legality… It is not sufficient to discover beneath the form of punishment in the sixteenth century a class repression; it is also necessary to work back synthetically and ask why repression should take half the form of law and penalty.”(pg.35-6)

The final position that Fine attacks in this section is “…one which conceives of legality as an ideological fiction, imposed on a social reality…” (pg.36). But as Fine notes, this position has several flaws, including that again it doesn’t explain why law exists if it has no legal basis.

1 comment:

Leftwing Criminologist said...

The first post in the series can be found

Part 1