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.

Bob Fine on Law and Class – Part 1

This piece looks at the first section of the chapter by the same name in Capitalism and the Rule of Law a book consisting of a selection of papers from the January 1979 joint conference between the National Deviancy Conference and the Conference of Socialist Economics. By the way, I’ll be away for about a week so this post and the one below are to keep you going for some time.

Fine starts his paper by looking at E.P. Thompson’s critique of some left groups, castigating them for dismissing anything to do with the state could potentially be positive. However, Fine isn’t interested in them, rather the assumptions that underlie Thompson’s stance. He argues that

“For the basis of Thompson’s critique consists in an unflinching belief in the democratic character of the legal side of state power. He writes that law seems to him to be ‘an unqualified human good’, in that it ‘imposes effective inhibitions upon power’ and defends the citizen ‘from power’s all-intrusive claims’. No problem is raised over the form of bourgeois law itself, the only issue concerns the struggle against the intrusion of ‘class-bound procedures’ into the legal mechanism”(pg.30)

He goes on to argue that Thompson is stating that bourgeois law will form a basis for working-class power to develop from. To Thompson’s position he contrasts that of Engels, who argued that under communism law would disappear and that capitalist democracy, with bourgeois law and everything, complements the domination of capital. After quoting from Engels he says,

“The issue which these passages from Engels raise is that the bourgeois form of law is contradictory. Between two polar positions, between its dismissal as a mask and its elevation as an unqualified good, we need to understand the way in which law acts as a form of domination, the social basis upon which this form of power emerges and sustains itself, and thence the contradictory functions which it performs both for the rulers and the ruled, capital and labour.”(pg.31)

Fine, then discusses why he feels the form of law is of significance at that time. One is the question of law under Stalinism, and the second is the attacks on civil liberties and increases in police powers occurring at that time in Britain and elsewhere in Europe. He goes on to state:

“It is in this context, when the imperatives of capital accumulation and the class struggle have put into question the viability of the ‘rule of law’, and when we witness a movement toward the substitution of bureaucratic-police rule for social-democratic forms of power, centred around legality and parliamentary representation, that the issue of forms of bourgeois domination has emerged again with particular sharpness… it becomes imperative to differentiate between the forms of power through which the domination of capital is left mediated and secured… this emphasis on form poses its own dangers: that of neglecting the class content behind the forms of law; and of neglecting the significance of the erosion of legality for the imposition of new conditions of exploitation and accumulation.”(pg.32)

He then suggests that quite an apt place to draw from on these issues is Trotsky’s analysis of the rise to power of fascism in Germany and the transition to Bonapartism and then fascism and differences between these forms. He goes on to say

“…the significance of the form of law could not be separated from its content: namely, the class relations which constituted the foundation of the legal form; and the transformation of these class relations hidden behind the move first to ‘Bonapartism’, which relegated legality and parliamentarism to shadows of their former selves, and then to fascism which substituted for them brute force and police terror. The strength of Trotsky’s analysis was precisely to probe the links between these distinct forms of state power and the class relations which provide their substance. Trotsky, in the course of his extended critique both of those who identified social democracy with either Bonapartism or fascism, and of those who defended the spirit of the constitution as it elevated the bureaucracy above society, constantly searches for the class basis of these historical development.”(pg32-3)

After quoting an article of Trotsky’s (Fascism, Stalinism and the United Front) to further elaborate his point, Fine concludes his section with the following words.

“For Trotsky, the defence of the form of law could not be isolated from its content. Bourgeois law was not an absolute elevated above the conditions of civil society which gave it birth; but the expression of capital mediated by the independent organization of the working class. It was for this reason that it had to be defended against attack from the right and against indifference from the left as the political form necessary for the exercise of ‘proletarian democracy’ and for the transition to socialism.”(pg.33)

I have to say, I think Fine’s general point is really good. However, I think, although he states he isn’t making any ‘mechanical parallels’, it’s a little too much to exaggerate the attacks to civil liberties and increasing of police powers during the 70s and 80s to the coming to power of fascism in Germany, but the points regarding form and content which Fine makes through this I think are spot on. There is another point I want to take Fine upon which is the last sentence of the last paragraph I quoted. Whilst capitalist democracy is the most favourable political form for workers under capitalism, it is not ‘necessary’.