Sie sind auf Seite 1von 23

Marxist Perspectives in the Sociology of Law Author(s): Steven Spitzer Source: Annual Review of Sociology, Vol. 9 (1983), pp.

103-124 Published by: Annual Reviews Stable URL: http://www.jstor.org/stable/2946059 . Accessed: 28/02/2014 10:29
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Annual Reviews is collaborating with JSTOR to digitize, preserve and extend access to Annual Review of Sociology.

http://www.jstor.org

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

Ann.Rev. Sociol. 1983. 9:103-24 Inc. All rights reserved Copyright ( 1983 byAnnualReviews

MARXIST PERSPECTIVES IN THE SOCIOLOGY OF LAW


Steven Spitzer
02108 Boston,Massachusetts of Sociology, Suffolk University, Department

Abstract
with thedeveland prospects associated theproblems Thisreview considers in thesociology oflaw. Takingas itsstartofMarxist perspectives opment a Marxistunderstanding of law through to construct ingpointtheefforts and a number of directions the traditional approachof legal economism, in the development of a new Marxistvisionof law are explored. themes in conjunction witha survey are examined Alternatives to "legal nihilism" concepofthemovement theory toward a "looser"and "flatter" ofMarxist betweenlaw and society.The role of politics, tion of the relationship are then in thereconstruction ofMarxist legaltheory and history ideology, and limits to thevirtues of "imbricationwithspecialattention considered accounts.The analysisends witha reexamination ist" and "constitutive" and divergence among Marxism,sociology, of the pointsof convergence law, and socialism.

INTRODUCTION: THE CRISES OF LAW AND MARXISM


in Marxistperspecof interest The last decade has witnessed an explosion tives on law. Just (1971: 137)couldobserve overtenyears ago,ElliotCurrie Marxiananalyses in theacademic with confidence thatthere were"very few have by no means sociologyof law." Today, althoughMarxistinsights of law, the sociologicalquestionsthat our understanding revolutionized theyhave raised are no longer,as Currie charged,"unasked." To the of law in in generaland Marxistinterpretations Marxisttheory contrary, have becomemorecentralto the sociologicalenterprise. particular and A number may be advanced forthis noteworthy of explanations there Mostgenerally, was whatHunt(1981: 49) has rapidshift. surprisingly 0360-0572/83/0815-0103$02.00 103

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

104

SPITZER

called a "deeply felt 'crisis' that enveloped lawandlegalinstitutions from theendofthe1960s" inWestern andtheUnited Europe States. Thiscrisis wasassociated with a number ofdevelopments that breathed life into Marxistapproaches to thelaw:(a) theexhaustion, ifnottotal ofthe collapse, "normative integration" insociology paradigm (Abel1980; Hunt1981) and thedecayof "liberal within legalism" legalthought and jurisprudence (Unger 1975,1976;Klare1979);(b) the"opening out"(Sumner 1981)of theoretical perspectives onlawandother "superstructural" elements within European Marxism (seeAlthusser 1971;Williams 1973;Thompson 1975; Cohen1978;Hall etal 1978; Poulantzas 1978);(c) thegrowing interest in political and economic dimensions oflaw generated bytheemergence of "radical criminology" (Taylor etal 1973; Quinney 1974; Greenberg 1980a; see Sparks 1980for a critical and "radical review) legalpractice" (Black 1971;Lefcourt 1971);(d) thebroadening of interest in therelationship between law and socialchange thestudy through ofpunishment and its historical transformation (Hay 1975;Spitzer 1975,1979;Foucault1977; Ignatieff 1978,1981;Lea 1979);and finally (e) therediscovery in the English-speaking world oftwo"classical" Marxist interpretations oflaw: thework oftheAustrian Marxist KarlRenner (1949)(for see commentary Kahn-Freund 1949;McManus1978;Hirst1979;Kinsey1979)and the work of Evgeny Pashukanis see Balbus (1978, 1980) (forcommentary 1977:fn. 5; Kinsey 1978;Sumner 1979:Ch. 8; Hirst 1979:App.I; Binns 1980; Mullin 1980;Greenberg & Anderson 1981;Beirne & Quinney 1982). Takentogether, these developments helpus to identify themajor stress in theMarxist points of law and to interpret theory thedirections its development has followed. Someof thefactors outlined aboveare the product ofpolitical struggles, others are tiedto cultural and intellectual and stillothers debates, are theresult of thepervasive discontent with modern forms oflawinall itsguises. To assess theshape andsubstance of this ferment itwillbe helpful accurately tolookmore carefully at both the deconstruction andreconstruction ofMarxist perspectives onlawthat have taken placeoverthelastdecade.

The Problem
Although recent collections (Cain& Hunt1979;Phillips 1980)havedone muchto dispelthemyth thatMarxand Engelswereoblivious to legal issues, it is stillfair to observe thatthey never identified law as a major theoretical problem & Wiles 1980: (Campbell x). In theabsence of an treatment adequate oflawintheir theMarxist original writings, conception oflawthat first inthe20th emerged reflected century theweltanschauung of"orthodox" Marxism (Gouldner 1980;Jacoby 1981).Embracing what Hirst (1979)hascalled"essentialism," these accounts were wedded to the

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

105

"view that all socialphenomena can be reduced or derived from theeconomic" (Sugarman 1981:81).It is this tendency totrace all legalphenomena backto economic forces and structures thathas created thegreatest obstacle to thedevelopment ofa Marxist oflaw. sociology Thepurest form oflegaleconomism is embodied intheidentification of proponent ofthisposition was Pashukanis (1978:61) whoreasoned that "thewithering awayofthecategories ofbourgeois law will... meanthe withering awayof law altogether." Basinghis theory of law on Marx's analysis ofcommodity exchange, Pashukanis consistently argued that there wasan homology between thelogicofthecommodity form andthelogic ofthelegalform & Quinney (Beirne 1982:21). Whilethisinsight has proven in demystifying valuable thelaw as an ideological form in capitalist it has also created societies, a cul-de-sac for Marxist attempts tocome togrips with law.To theextent that lawcanonly be understood as a negative force andform peculiar to bourgeois society, itsexplanation begins with thecritique of capitalism and endswithits Ifthis eclipse. view is taken then seriously, as Marxism achieves itsobjectives thetheory oflawself-destructs: "Lawsas a specific ofanalysis object disappear" (Hirst When itistied 1979:163). tothis logic Marxism doesnot so muchoffer a theory of law as a "theory against law" (Santos1979; Cotterrell Insofar 1981a). as Marxism is forced to throw thelegal"baby" outwith the capitalist "bathwater," any systematic consideration ofthe law is stymied before it starts. The mechanical equation of Law and Capitalism by "legalnihilism" (Sharlet 1978; Hunt1981: 35) hasproven an embarrassment anda frustrationforthosewhohavesought to advance Marxist theories of law: an embarrassment because oftheunmistakable andpersistent presence ofthe legalform, legalideologies, and repressive law in "socialist" and other noncapitalist societies; a frustration because as Law is disentangled from theentire Capitalism, edifice ofMarxist theory threatens to collapse. A number ofstrategies havebeenpursued byMarxists since Pashukanis inaneffort toovercome the shortcomings ofeconomism without sacrificing thebasicstructure ofMarxian theory. Theproblem these strategies face is howtodisentangle exactly Lawfrom Capitalism andfashion a more sophisticated, andempirically flexible, defensible ofthenexus understanding between thetwo. Before these examining ingreater strategies detail itwillbe useful to outline thecontext within which haveemerged. they As early as 1906an alternative to theemphasis on legalform in Marxist legaltheory became apparent in thework ofKarl Renner (1949).Renner
Law as a social form withCapitalism as an economicsystem. The earliest

Functional and the "Loosening Analysis Project"

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

106

SPITZER

located the roots ofcapitalist lawinbourgeois property relations, butunlike Pashukanis he was "principally concerned with theendsto which law is the oflawitself' rather than with 1979:52).ForRenner form (Kinsey put, lawisa "neutral framework oflegality orthe rule oflaw,upon which would of a 'SocialistCommonwealth"' evolvethe social functions (Kinsey 1979:53).Andsince lawcanserve different endsunder different economic regimes, itispossible not only toenvision a socialist lawbutalsotoseehow law can become a political as wellas an economic tool.The connection between lawandeconomy is thus preserved butthefunctional relationship in an important thetwois "loosened" between respect. Themost obvious problem with this "solution," however, is that itfails tospecify theconnection between andcontent. As a number of legalform commentators havenoted(Klare 1979:135;Kinsey1979:52;Beirne & 1982: be treated as an "empty frame" Quinney 6), law cannot intowhich newcontent is poured without forcing us to introduce other factors (e.g. howthelawaccomplishes itsends. In power, mystification, etc)toexplain thissense, and theelasticity Renner's loosening (McManus1978)it prooneofthe other vides presage "instrumentalism" (seeMiliband 1977), types in revisionist ofreductionism identified debates. Whenapproached from thestandpoint ofthe"needs"ofan economic oftheloosening theessence system, project (Greenberg 1976)is thedenial The question oflaw forthatsystem. thusbeofthefunctional necessity anexplanation Is itpossible toprovide oflawthat ties ittoeconomic comes: thecircularity offunctionwithout andteleology organization reproducing alism? (See A. Horwitz 1977;Spitzer 1977.) One ofthemost ofdistinguishing Marxist straightforward ways theory from traditional is to emphasize thefact functionalism that for theformer elements arealways ofa classsystem as wellas functional. dysfunctional in classsociety thecentral mechanism ofsocialchange Morespecifically, is, according to Marxist theory, a dialectical process through which the relations ofproduction inevitably come into conflict with (aredysfunctional thedeveloping forces ofproduction. as capitalism for) Thus,for example, weshould that functional under feudaldevelops expect legal arrangements ism(e.g.theElizabethan PoorLaws)would become for and dysfunctional with havetobe replaced bylawscompatible theemerging capitalist order of 1834(see Polanyi1957:Ch. 6; Piven& [e.g.thePoor Law Reform we shouldalso expect Cloward1971)].Taking thisa stepfurther, that "forms andprinciples ofsocialist within legality [are]developing capitalist societies" 1981: (Sumner 88). totheanalysis When systematically oflawthese encourapplied insights at leastsomewhat at oddswith themodeof ageus to viewlawas always inwhich Butwhile ofthe production itisfound. an inventory functions and

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

107

dysfunctions ofvarious lawsforanymodeofproduction establishes the contradictory character oflaw(Chambliss 1979;Grau1982), thequestion ofwhythese contradictions exist or howand when they are likely to be "resolved" remains unanswered. Moreover, since lawcanalways besaidto be aheadof,behind, or parallel with a given economic order, we haveno wayofestablishing theprecise functional significance ofanygiven law.

Ofthemany "isms"identified in thedebate overtherevision ofMarxist "structuralism" theory, and"culturalism" aretwoofthemost important. around Centering thework ofLouisAlthusser inFrance andE. P. Thompson in Britain, these respectively, twotendencies havein many respects defined theterms andlimits oftherecent investigation into theroleoflaw inMarxist theory. as efforts Beginning to refine traditional conceptions of the base-superstructure haveinvery metaphor, they different tried to ways respond to thechallenge ofeconomism intheMarxist perspective on law. The recurring issuefacing bothofthese tendencies or "schools" (Laclau 1977: Ch. 2; Redhead 1982: 330)is,as I argue howto redefine below, the relationship between external structures, humansubjects, and the law (Hirst1980). A major inthe"structuralist" point ofdeparture isthe approach concept ofthe"relative ofthe law.As a touchstone autonomy" for revisionist many accounts (Balbus1977; Edelman itoffers an approach 1979), torethinking thelaw/economy nexusin structuralist terms. Louis Althusser (1970: 99-100) suggests that the law,along with philosophy, aesthetic production, scientific and other"superstructural" formations, have their elements, "ownhistory" and exist as "relatively autonomous and hencerelatively independent" features ofthe"whole." Law is thusconceived as independent oftheeconomic butalsodependent system insome sense. This"some sense"is therubsince themovement andstructure ofall superstructural elements (including law)areultimately traced backtothe economic system. Balibar (1970:306),Althusser's collaborator, illustrates this logicin his that theinterventions argument oftheState, law,andpolitical such power, as those that in thetransition occurred from feudalism to capitalism (e.g. factory legislation andtheenclosure actsin England), "transform andfix the limits ofthe mode ofproduction." What hemeans isthat atleast bythis in transitional "theforms periods oflaw and of Statepolicy are not,as hitherto, totheeconomic adapted structure ... butdislocated with respect toit"(Balibar 1970:306-7). Thuslawis somehow "broken loose"todo its work. Butthis dirty dislocation doesnotblock thepath between economy andlaw,itonly serves to make that pathmore andcircuitous. In tangled

Deconstructing Marxism:Structuralism, Culturalism, and the "Flattening Project"

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

108

SPITZER

thefinal thepathleadsbackto a version analysis, ofthevery economism that thetheory is ostensibly toovercome. designed Theknee-jerk relationship between lawandthe economy is abandoned (Beirne & Quinney 1982: 13),but lawis still accounted for inthe "last instance" bypulls onthe visible orhidden economic strings. Why then hasstructuralism beentaken so seriously as a wayoutofthe theoretical theMarxist oflaw?Oneanswer impasse facing analysis may be in extensions found andrefinements ofthestructuralist position byNicos Poulantzas (1973,1978). Poulantzas breaks with the Althusserian portrayal oflaw in an important he observes respect. Specifically, (1982:190)that or forbidding them to act."Thuslawis notsimply, people bycompelling as Althusser have state (1971)would it,an "ideological "It also apparatus." andsanctions certain realrights ofthedominated organizes classes (even ofcourse, in thedominant though, these areinvested rights ideology and arefar from inpractice totheir corresponding juridical form)" (Poulantzas 1982:190).Eventhough Poulantzas is quick toaddthat therights granted are in an important senseillusory, he has at leastopened thedoorto a broader view oflawas a partly andcreative) as wellas positive (i.e.active in the"political-social factor field" partly negative (cf.Edelman 1979). Theemphasis onlaw'sactive, and"lived" shaping, embedded, character inthework ofPoulantzas andto someextent inthat ofAntonio Gramsci hashelped structuralism (seeHalletal 1978; Sugarman move 1981) beyond a unidimensional of law. Recentcommentators havedrawn conception attention tothese andtied "functions" them to theemergence ofwhat has been called the "constitutive oflaw."According toKlare(1979:128, theory 132),thistheory oflaw shifts theemphasis from law as an abstract and structure tothe notion oflaw-making as praxis: the objectified view that law represents "a form ofexpressive socialpractice in which thecommunity inshaping the participates andadjudicatory text ofsocial moral, allocative, life." Theconstitutive thus demands theory oftheroleplayed "recognition even inthe byallsocial individuals andgroups, actors, including oppressed constitution of thelegalorder" to the (Fraser1978:148).In opposition lockstep oflegal nihilism andthe system ofclassical imperatives structuralthis seeks to"bring men backin"(cf.Homans ism, approach (andwomen) totheexplanatory andtoredefine driven 1964) system as a process history byhuman subjects (Thompson 1978:79). Thisperspective is echoed, albeit from thevantage of"culturalpoint whose ism," byE. P. Thompson. isdescribed Thompson, position byseveral observers as "imbricationist" & Quinney (Sugarman 1981;Beirne 1982), assumes lawis "deeply imbricated within that thevery basisofproductive relations" Lawis,moreover, (Thompson 1975:261). both within andwith"Law does not only deceiveand conceal ... nor does it merely repress

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXISTSOCIOLOGY OF LAW

109

out; there are "invisible" as wellas "visible"structures of law (Thompson 1975:261). From the point of view of some structuralists, Thompson's position is one of"cultural reductionism" (Merritt 1980:210). ButThompson is notsimply suggesting that theeconomicinfrastructure is "absorbed" bythesuperstructure oflegal,political, or cultural ideological, practice; he is arguing thatthevery distinction between infrastructure and superstructureis flawed. For Thompsonlaw does not simply influence the material basis of society, it becomespartof thatbasis. The impulseto treatlaw in thisway is partof whatmaybe described as the "flattening project":the denialof thetopographic ofbase and superstructure metaphor in Marxist theory. Conventional Marxism has proceeded on theassumption thatthearchitecturalmetaphor can and should be rehabilitated-as,forexample,in Cohen's(1978:231) suggestion thatthe"roof' (superstructure) is notonly supported by the "struts"(infrastructure) but also rendersthem more stable.But theflattening project involves a movement thissort away from oftheorizing for bothstructuralism and culturalism. Whatever their continuingdifferences, bothschoolsseemto be moving towardan obliteration of thedistinction between the"upper"reachesofconsciousness, reliculture, gion,art,politics, and law and the "lower"economicprocesses and structures. Once itis redefined and flattened in thisway,thetheory oflaw can begin to taketheinterpenetration ofthelegaland extra-legal worldsseriously. It becomespossible, forinstance, to ask questions aboutthelaw-making process in socialistas well as capitalist societies(Fraser 1978; Kinsey 1978). What remainscrucialto this task,however, is the abilityto distinguish expressive fromrepressive law and to demonstrate how particular social arrangements proveconsistent or inconsistent witheach. If law is social practice, thenhowdo we decidewhether thatpractice is expressive, repressive,or both?Moreover, since the theoretical centerof gravity is shifted from thereified economic system to theflesh and blood peoplewho create and live it,a new problem arises:How can we understand thenatureand significance of law as a social institution as well as a social practice? Law is neversimplypraxis. No matterhow fluid,spontaneous, and a societyis, it mustcreateinstitutions revolutionary that at some point guideand define thelimits ofsocialpractice. As a series ofcrystallized social practices within law becomesa condition history, as wellas a form ofsocial practice, a framework within whichlaw-making itself takesplace. Law is thusalwaysstructure as well as practice, if onlybecause laws inevitably outlivetheir makers. Bydowngrading thestructural, sideoflaw the"imbricationconstraining ists" have createdanotherproblem: have They dissipatedthe structural

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

110

SPITZER

tension at thevery heart of Marxist of socialchange. conceptions For Marxism the movement ofclasssocieties through ispremised history onthe tension between theforces and relations ofproduction. If law is "reconstituted" (Fraser doesitsstatus 1978:150), from a static relation change of production to a dynamic productive force? To saythat law is expressive under socialism andrepressive under capitalism solves theproblem. hardly An agenda is nota theory. Thusthe flattening project not only demands that Marxism reconceptualize thesystem at rest, italso entails a rethinking ofthesystem in motion. If law is embedded in thevery foundations ofclasssocieties thequestion becomes: Howcanlawboth support andinhibit thetransformation ofsuch societies? Are we to understand law as botha force and a relation of production, itsprecise status being determined ineachempirical instance; oris itbetter todistinguish different kinds orlevels oflaw?In either case, thereconstruction ofMarxist legaltheories requires that we takea closer look at therelationship between legaland other "noneconomic" social forms.

RECONSTRUCTING MARXIST LEGAL THEORY: THE ROLE OF POLITICS, IDEOLOGY, AND HISTORY
The deconstruction ofMarxist legaltheory has opened up an important breathing spacefor those whoare pursuing emancipatory conceptions of law and society. For thoseinterested in its reconstruction thegreatest amount of attention has been focused on the significance of politics, ideology, and history.

Law and Politics


Oncelegal hasbeen theory freed from the stranglehold ofcrude economism. it is hardly surprising that thelinks between law and politics become far more salient. Modern lawisalways insome sense a creation ofthestate just as thestate is in some sense a creation ofmodern law(P. Beirne, personal Theconnections between the communication). institutionalization ofpower andthepractice andstructures oflawarethus far tooimportant toignore. therelationship between Nevertheless, law and the stateraisesserious for vision questions oflaw (Miliband anyMarxist 1977). Themajor with difficulty associated theintroduction ofpolitics into the Marxist consideration of law grows out of thefactthatMarxism is illit as an independent to treat equipped and relevant variable. Politics has been inclassical typically Marxist submerged discussions oflawbecause of tofocus thetendency on the"private" functions oflawandto (economic)

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

111

1977:438-39). (Steinert problem law as a "second-order" "public" treat treated as an itis usually lawis addressed, public caseswhere Butinthose there class.In consequence, ruling andthewillofthe ofthestate extension muchless publiclaw and statepolicy, to distinguish incentive is little (Grau 1982).Neither to thestate in opposition law as a factor approach into dissolved areeither when they seriously norlawcanbe taken politics class thewillofthedominant with or equated (economism) theeconomy (instrumentalism). its also weakens form ofthestateas an historical analysis Marxism's comhastraditionally Marxist theory is that Thereason force. explanatory in which inhistory modeofproduction "as thefirst capitalism prehended is producer out of thedirect is pumped thesurplus whereby themeans In 1974:403). (Anderson in form-the wagecontract" economic 'purely' operate ofexploitation modes previous "all other to capitalism, contrast legalor poreligious, customary, sanctions-kin, extra-economic through the SinceMarx (1970a:689) emphasized 1974:403). litical"(Anderson of was basedon the"dull compulsion control capitalist waysin which elethesuperstructural thatwhile it maybe argued relations," economic ofthe"constitupart become law,andthestate religion, ofkinship, ments they remain modes of production, of precapitalist tive structure" life. Thus,at ofcapitalist and regulation to theorganization "marginal" law as to treat that leadsMarxists thesamereasoning leasttraditionally, serious from state andthe removes politics capitalism under epiphenomenal toa critique itself limits as Marxism Andinsofar consideration. theoretical a theoretical as either toemerge fails the"political problem" ofcapitalism, issue. or practical as ifpolitics capitalism to approach prefers theory At itscoreMarxist The ofitsexistence. an internal precondition rather than an external were when werecognize however, suspect, becomes reasoning this behind logic "glue," capitalism's ofwhich Anderson speaks, the"wagecontract" that ofcapitalism-private classic definition Infact, the a legal construct. isitself legal twoimportant contains ofproduction-itself ofthemeans ownership aremany 1982:10).There (Tushnet and"ownership" "private" concepts: where as Cohen(1978:216-30)hasrevealed, analysis, inMarx's instances And terms. political) inlegal(andtherefore structure economic hedefined to sepacompelled mayfeel (1978:224-5), likeCohen while somepurists, "chaff" legal the from relations) (e.g.production "wheat" economic rate the ofthetwoillusinterpenetration theconsistent relations), (e.g.property inthereconstruction dimension ofthelegal/political thesignificance trates effort. legaltheory Marxist within ofpolitics in therecasting Two directions as (a) Law against characterized be roughly may They promising. appear E. P. Thompwith Beginning Capital. against and(b) theState theState,

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

112

SPITZER

son's contributions and theensuing "rule of law" debate(Fine et al 1979; Sumner1981;Redhead 1982),a number ofcommentators Marxism within have begunto suggest not onlythatLaw and Stateare empirically distinstandin opposition. Thisopposition butalso thatthey guishable, frequently is typically rootedin thecontradictions of legal development within class in terms societies. Sincethecapitalist statemustcontinually legitmate itself of the values of individual rights, equality, freedom, and justice,it must of rules,procedures, and practices(Law) thatactually developa system servesthesevalues,at least some of the time.By juxtaposing"arbitrary power"and "theruleoflaw" itmaybe arguedthatlaw can operate against the stateas well as in its service(see Thompson1975). The notion ofLaw against theStatecaptures thecontradictory reality of The nub oftheproblem capitalist arrangements. forMarxist comes theory in specifying underwhichthe rule of law and the "rights" theconditions it provides are in facta barrier to power,an extension of power,or both. The theory mustnotonlyspecify thewaysin which"rights" suchas habeas corpus, trialbyjury,and theright unions(Thompson1979)are to organize situatedwithinhistory (Picciotto 1979), but also address the interplay between and principles on theone handand concrete abstract rights proceon the other.In thisendeavorthe lines betweenthe duresand practices blurred publicand private spheres, although frequently (Unger1975,1976; Fraser1978;Klare 1979),must be distinguished as clearly as possible. Thus thefreedoms granted againsttheStatethatThompsonand other imbricationists the State exploreare notat all thesame as thosegranted through ofcontract and property kinds [e.g.freedom (see Neumann1957)].Certain of individual rights help the Stateto growwhileothershold it in check. Yet to talkof "granting" thesefreedoms and rights is, ofcourse, to miss Becausehe and other law partofThompson's point. imbricationists present as an ''arena forstruggle" rather than as eithera reflection of economic or a benefaction imperatives of the state,thereis a strongemphasison In fact,the rule-of-law rather "winning" thangranting rights. analysisis in terms of the possibility largely defined and desirability of reconceiving law as a productof class struggle-the"missinglink" in orthodoxand accounts (Sumner 1981; Grau 1982; Redhead 1982). Hall structuralist (1980: 10) summarizes theposition well:"We are arguing ... thatthecivil makeoursociety rights and freedoms which whatitis arerights which were and won in struggle in society, defined interests not againstthe dominant on society bestowed by theory." A secondconsideration ofpolitics within focuses on Marxist legaltheory how the state sometimes operatesagainstratherthan in the serviceof ofthestate, a number traditional Marxistconcepts Capital.In challenging of observers have drawnattention to two important but neglected facts:

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

113

(a) The "capitalist state"mayuse law as a meansof "disciplining" specific capitalsin the interest of capitalism as a whole,and (b) powergroupsin capitalist societies mayuse thestateand itslawsagainst theinterests ofboth specific capitalsand capitalism in general. In the first case specific laws (i.e. antitrust legislation, certaintypesof administrative law, environmental law, products-liability law, etc) become a brakeon renegade capitalists and a coordinating, organizing, and regulating factorin the interest of capitalism.One variantof this positionis developedby the "capital logic school" (Jessop1980:340). Emphasizing thefunctions thatmustbe performed to maintain the capitalist system as a whole(e.g. securing socialorder, providing necessary infrastructure, guaranteeinginternal and external markets, reproducing labor power,longrangeplanning, and investment in humancapital),thisschoolarguesthat "sincethestateand state intervention developed exactly becausethesetasks could notbe performed profitably by singlecapitals(otherwise theywould have)and sincethestatehas to stepoutofthecompetition between capitalists to fulfill those tasks it must (and does) have a certainamount of independence from capitaland its factions" (Steinert 1977:439). This independence explainshow and why the law can work against "particular capitals"(e.g. "profiteers," "unethical"manufacturers, unionbreaking companies, corporate polluters, etc) yetremainloyal to "capital in general."But becausethe "logic of capital" forces the stateto pay for itsindependence byserving another and deepersetof"system needs,"these theories never releasethestatefrom really capitalism's do grasp.Whatthey provide is a morecomplex analysis ofthearticulations amongtheeconomy, and the law. politics, The secondway of interpreting therole of thestatevis-a-vis capitalism is basedon therecognition thatin somecircumstances thepowerofthestate maybe harnessed by groupsthatlie beyondthe immediate boundaries of capitalism's "interests" and "needs."Two possibilities arerelevant here:the seizureof powerfrom "above" and from"below." On the one hand,it is clearthatcapitalism has takena number of "exceptional" forms (e.g. fascism)wherein thepowerofthestatewas "captured"and used to diminish ifnot destroy theability of thecapitalist class to administer the economy and "make"thelaw (see Neumann1944;Kirchheimer 1969;Gramsci1971; Hall et al 1978). On theotherhand,thereis the obligation to explorethe seizureof poweras partof theprocessthrough whichcapitalism is transformed intosocialism-keeping alive thepossibility thathistory is always made,at leastin part,bymenand womenand thatneither nor Capitalism theStateis an eternal social form. If Marxismis to be takenseriously as an analysis ofcapitalism and socialism, it mustaddressbothofthesequestionsas partof any investigation intopoliticsand the law.

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

114

SPITZER

Law and Ideology


ofthe between ideology relationship tothe investigation obstacle Themajor as the former Marxist habit of been the defining long-standing andlawhas If the latter as and is, by "repression." ideology "falseconsciousness" classby oftheworking over theeyes a veilpulled no more than definition, to the its connection is little pointin studying thenthere its masters, in or role inhibiting its promoting or assessing apparatus political/legal with ofideology andending itsconsideration socialchange. Bybeginning the class are in of the ruling every epoch "the ideas ruling theepigram to theroleofideology Marxism restricts 64),classical ideas"(Marx1970b: rule. which trick" capitalists of a "confidence Kinsey 1978) by (cf. that inMarxism ofideology 1975; on thetheory (Lichtman work Butrecent a reexamina1979)has stimulated 1978;Hirst1979;andSumner Kellner Marxist Sevtheory. androlewithin tion ofideology's meaning, function, ofideology inMarxist arerelevant tothe ofthis position eral process aspects must ofthese isthe that ideology recognition Themost theory. general legal in Muraskin As Arnold Hauser(cited be distinguished from propaganda. most distinguishes a propagandissharply "what 566)hassuggested, 1976: offacts is ... that andinterpretation ticfrom an ideological presentation conscious oftruth is always falsification and manipulation [theformer's] essence onthe other is mere deception-in hand, andintentional. Ideology, is embedInsofar as ideology liesanddeceit." simply self-deception-never itcannolonger ofboth the deceivers anddeceived, dedinthe consciousness Fromthisperspective, theruling with be confused direct manipulation. becollected outofthin air.Rather, itmust creates ideology legal classnever half-truths, thesea of beliefs, pool" within from a kindof "ideological and consciousness ofany making up theculture andassumptions cliches, that this experiences, bytheeveryday poolis fed Andtotheextent society. of all classeswithin society, the and frustrations aspirations, traditions, and becomeinteresting law, and politics among ideology, relationships complex. turned upside theassumption that is simply reality ideology Freed from obscura ruling class, as ina camera 1975), bya scheming (Lichtman down, of become central to thereconstruction of legalideology investigations be defined as an imNot onlycan ideology itself Marxist legaltheory. butthe of"flattening," above), ideological bricated force discussion (seethe tomore careful oflawcanalsobesubject scrutiny. ,sources andimplications in this lawas regard: oflawhaverecently beenexplored Two dimensions and as doctrine. magic in itsability to oflaw in classsocieties resides Partofthesignificance ofreasoning, extent that Lawas a way as doctrine, social life. To the mystify in"professional esoteric iscouched grand andas practice language, secrecy,

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

115

of structured therituals ceremony, special clothing, carefully courtrooms, legislation and theoccupational ofthejudge"(Sumner 1979 status :-275), itis embedded in commonplace rituals suchas the that andto theextent itbecomes andmysterious: a reified pledge ofallegiance, something special socialform (Gabel 1980). in theglueusedin theattempt As an ingredient to putthehumptyitoff after haspushed thewall, ofculture backtogether dumpty capitalism setofideological The Law (likeScience) performs an important functions. initsritual, reified ofLaw as both character practice (reflected ceremonial, inbroandtotemic andconsciousness most character) (reflected generally thelaw" and "a government oflaws mides like"all menareequalbefore inthefoundation notmen")provides an important ofclassrule ingredient In this -an ingredient often taken as seriously rulers as bythe ruled. bythe respect ofboth themasses Law is theopium andtheruling class.Thefact in that theruling classhasa more anda greater interest strategic position innoway the ofthis manufacture them opium (Sumner 1979:270) exempts from all itsaddictive effects. Theideological functions oflegaldoctrine within societies have capitalist in a number of ways.Partof thecritique beendemonstrated concerns inboth andconservative ofthepatterning liberal accounts of shortcomings legal Themain decisions anddiscourse. targets here have been formallegal ism(Kennedy 1973;M. Horwitz 1977: Ch. 8) and liberal legalism (Kennedy1976;Unger1976; Klare 1979) as efforts to construct coherent accounts ofthe nature oflaw.Thus, legitimating for formalexample, legal ismcanbe interpreted as a specific legitimating ideology corresponding to incapitalist a particular As suchitformed stage "an intellecdevelopment. tualsystem which law rulestheappearance gavecommon ofbeing selfand contained, apolitical, inexorable, andwhich, bymaking 'legal reasoning like seem 'anair... of... inevitability' mathematics,' about conveyed legal decisions" 1977: (M. Horwitz 254). Legalinterpretation is theprimary process ofself-legitimation forthe legal profession. When itis"decoded" inthis (Klare1981) way, the ideologicalfunctions ofdoctrine areboth revealed andrendered lesseffective. The here isthat texts animportant ofthe assumption legal provide part ideology oflaw-an ideology that helps legitimate andmediate repression through a "logic ofobfuscation" The taskofcritical (Kennedy 1979:220). inquiry isthus to"uncover the constellation ofassumptions, values andsensibilities aboutlaw, politics and justicethesetexts to revealtheir evince, latent Atanother level oflawandtheir specific types interpretation areanalyzed as they contribute tothe ofcapitalism. In this ideological reproduction body ofwork, theideological features ofparticular types oflawsaredelineated and tieddirectly to thefactthatcapitalist law,in spiteof its claims to
. . ." (Klare 1981:451). and structures of thought patterns

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

116

SPITZER

and grim contradictions theunderlying mustalwaysreflect transcendence, a prism becomes of itself, spite in the law, Thus life. capitalist of realities of capitalfeatures exploitative and divisive, alienating, which the through refracted. ism are to appearin Ameriarebeginning ofanalysis ofthistype Manyexamples oflaw The ideological dimensions publications. law and other can journals public 1976) and as private (Kennedy in as diverse areas explored havebeen (Gabel 1977; Gabel & Feinman (Tushnet1979) law, thelaw of contracts law (Tushnet 1981), labor law 1982), torts(Abel 1981), constitutional law (Kelman 1982),and law (Klare 1978,1981,1982;Stone1981),criminal (Freeman 1978, 1982), healthcare (Rosenblatt relating to race relations (Olsen 1983),and genderroles (Rafter& Stanko 1982; 1981),the family 1982). Polan 1982; Taub & Schneider the a linkbetween of thissortseek to establish In mostcases,inquiries imperaand specific of doctrine in the evolution reflected legal principles In discussing A fewexamples maybe considered: society. tivesofcapitalist in workmen's cases,MortonHorinjury ofrisk"doctrine the"assumption of contractarian witz (1977:210) arguesthat it expressed"the triumph legalcreation nineteenth century thananyother morecompletely ideology of inequality thatthe thoseforms ... the law had come simply to ratify of the produced."Lookingat the ideologicalsignificance system market thattheidea of"equivalence" (198lb: 63) suggests Cotterrell legalcontract, oflaw "promotes thebreakdown in thisgenre embodied and "universality" unconnected withtheneedsofan economy ofall majorstatusdifferentials of form and defines theparticular and confirms exchanges basedon market are conceptualsocial relations in terms of whichcapitalist individualism that ofAmerican tort law,Abel (1981: 206-7) indicates ized." In a critique because ofbourgeois ideology in thereproduction doctrine is significant tort and "reforinequality, support offers symbolic individualism, it reinforces ofcapiconcept thatfundamental byextending injury spondsto intangible ofproduction to thesphere form-from thesphere talism-thecommodity of reproduction." Finally,Klare (1981:452) arguesthat "collectivebarunand justify an ideology thataims to legitimate law articulates gaining in the workplace." hierarchy and domination and destructive necessary have it (law professors) and thosewhoreproduce As thelegalprofession sourcesand implications abouttheideological becomemoreself-conscious of theirwork,the notionthatthe law is simplya neutralinstrument-a (M. Horwitz1977: Ch. associatedwiththeriseof capitalism notionitself has grown And thissuspicion paripassu l)-has becomeevermoresuspect. and to thelinksamonglaw, politics, attention withMarxism'sincreasing ideology. inthedemystifiis a vitalprocess ofthelaw as doctrine The interpretation cation of law. Yet it is also clear that ideologyis neverfullyformed,

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

117

or internalized articulated, at the doctrinal level. There may be value in destroying the artificial coherence and legitimacy of legal thought, but it isn'tclearwhatthosebeyond thelegalestablishment can buildon theruins. "Legalism" suffers from"an overemphasis uponjudicial institutions and the relative neglectof the formulation and administration of law" (Abel 1980:828). But to the extentthat "criticallegalism" (see Unger 1983) restricts itscritique to thelevelofdoctrine and ideology, it suffers thesame fate. Law alwaysresponds in somefashion to thevoicesand actionsof those who are its subjects;in thissense ideologyis as much emergent as it is imposed.The concrete struggles, disputes, and agreements thatare transformed intolaw leave their on boththe form imprint of legal institutions and the content of legal ideas. Hence, legal ideologynot onlyreinforces, and legitimates enshrines, thevictories ofthecapitalist it also regisorder, tersand presages its defeats. Once again,the contradictory natureof law threatens to destroy thesymmetry and closureofanyMarxism thatrefuses to acknowledge its mediative and transitory character. Perhapsmorethananything else,theexplanation oflegal changeforces Marxisttheories of law out of theiranalytical straitjacket. It is thisissue, as it invokesthe role of history, to whichwe now turn.

Law and History


At the heartof any Marxistinquirylies the questionof social change. Whatever elseit mayclaimto be, Marxist theory mustmeasure itself byits to explainmajortransformations ability in the organization of economic, political,and social life.But like most of the 19thcentury to attempts understand theworkings ofWestern societies (Bock 1952),Marxist theory is hauntedby the "ghost of evolutionism" (Jacoby 1977:78; Gouldner 1980: Ch. 2). The powerof the ghostis evidencedin the willingness to reducesocialchangeto "a developmental schema, a progression registering -difficult, halting, occasionally and reversed-when stopped there maybe none" (Jacoby1977:74). Manyoftheexcessesand distortions oforthodox Marxist legal theory maybe tracedto theinsistence thatlaw mustfollow societyand societymust change accordingto a preordained plan. The "withering away" thesis, based as it was on visionsof inexorable progress toward"lawlessness," is onlythe mostblatantof thesethemes. But there is another side to theMarxist visionofhistory. Marx (citedin Jacoby1981:22) was carefulto note that "human history differs from natural in thatwe have made theformer, history but notthelatter."As a ofhumanactivity product rather thannature, thehistory oflaw reflects all ofthecontingencies, humanfailings, uncertainties, and misunderstandings ofsocialexistence. Ifwe study themovement oflaw within itsownhistory, ratherthan forcing it to followthe movement of "historicallaws," it

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

118

SPITZER

becomespossibleand desirable to examinethe richness of law in thepast as well as the present. Two major advancesare associatedwiththe introduction of historical considerations intoMarxist legal theory: (a) thehistorical specification of the functions of law; and (b) the reexamination of the majortimeframes within Marxistanalysis: themodesofproduction. On theone hand,it has been recognized thatthefunctions of law are historically contingent; that thesamelaw can accomplish different tasksand serve different masters over time.On theother hand,it has becomeobviousthatlegal changedoes not correspond neatly to thelifecourseof any givenmode of production; nor do specific legalarrangements necessarily staywithin theboundaries ofthe mode of production in whichtheyare expectedto appear. Although Marxist legaltheory has clearly suffered from an insistence that specific legal forms and contents mustbe linkedwithdistinctive modesof economicorganization, a fewstudiesin the Marxisttradition have recognized that laws may servedifferent purposesunderthe same economic conditions and the same purposesunder different economicconditions. Severalexamplesmayproveinstructive on thispoint:(a) Vagrancy laws served twovery different overseveral functions inprecapitalhundred years ist England (Chambliss1964); (b) the writof trespassundercapitalism "derivesoriginally from feudalideologiesof landowners, feudal reflecting ofproduction relations where territoriality and battles forland werecrucial features" (Sumner1970:273); and (c) in general, "legal techniques maybe createdin the course of development of particular spheresof economic activity whilelegal systems ... have no place forsuch techniques within theirbody of legal doctrine" (Cotterrell 198lb: 57-58). As theseexamples suggest, Marxist investigations oflaw mayalso benefit froma morecareful look at the natureof law both betweenand within different modesofproduction. law acrossmodesofproduction Comparing allowsus to acknowledge the"slippage"between law and economy without theconnections denying between thetwo.Comparisons ofthissortmaybe made overthe actual passageof timeor by lookingat the waysin which different modes of production (e.g. capitalistand precapitalist) confront each otherin the modem era. In the first the focusis on how instance, laws operating specific one modeofproduction under (e.g. Romancivillaw under slavery)are appropriated to fitthe instrumental and ideological moremodem,way of organizing purposesof another, economiclife(e.g. capitalism)(see Cohen 1978:245-48). In the second case, the processof "modernization" is explored (Greenberg 1980b;Fitzpatrick 1980a; Cohen 1982) in orderto understand how thevarieties of economic, political, and cultural in precapitalist organization prevailing societiesacquiesce,resist, or compromise withthe legal imperatives of the capitalist worldsystem (Fitzpatrick 1980b;Snyder 1980).Through thistypeofhistorical compari-

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

119

bothdiachronic son it becomespossibleto investigate and simultaneously synchronic aspectsof legal and economiclife. In additionto thevalue of studying law across modesof production, it to historically is also usefulto pay closerattention specific legal variation An interesting within theseeconomicforms. exampleof how thissortof oflegalrelationships periodization mayadvanceMarxist understandings is in theworkofRichardKinsey.In an investigation found ofdespotism and legality, Kinsey(1979:48-49) delineates three periodsin thedevelopment ofcapitalist "within whichqualitative of production changesin thecontrol of thelaborprocessare visible."Each of thesethreeperiods organization theearly and advancedcapital-manufacture, periodofmodemindustry, ist production-constitutes, accordingto Kinsey,a peculiarformof deofproperty, thedespotisms thefactory, and legality. Here Kinsey spotism: ofsocialcontrol under is suggesting thatthenature capitalism adaptsto and reflects the historically rootedproblemsassociated with class rule. The of legality despotism is, as Kinsey(1979: 62) has observed, epitomized by thefactthat"the content ofthecontract but theform is maybe disputed neverquestioned."By distinguishing this typeof social regulation from overproperty earlier varieties based on control [cf.Blackstone's18thcenon thesecurity ofprivate tury emphasis property (see Kennedy1979)] and controlover machines(as found,for example,in claims to commercial our understanding of how phenomena liberty), we can beginto refine as time. broad as capitalism and law are intertwined through from The recovery of history the "genetic like therecovery of fallacy," or "statism"and ideologyfrom"false politicsfrom"instrumentalism" offers thehopeofa newlifefora theory consciousness," facing rigor mortis loose from thechainsoforthodoxy, (Jacoby1981: Ch. 1). But in breaking to "loosen Marxistlegal theory also facescentrifugal forces thatthreaten untilit vanishes the theory intoa cloud of wordsand intentions" (R. M. This dialecticof dangerand hope mustinform Unger,unpublished). any to movebeyondwhatwe have considered attempt thusfar.

SOCIALISM AND LAW: TOWARD A CONCLUSION


While Marxisttheory has much to say about law and capitalism, on the oflaw and socialism it has beenstrangely silent. The historical and subject reasonsforthissilenceare notso strange as to be belabored contemporary is whether in light ofthedeconstruction here.Whatis important, however, I havedescribed a theory andreconstruction oflaw under socialism is likely to emerge. will have to explorethe natureof law in two contexts: Such a theory socialist "actually existing" states(Bahro 1978) and states(or collectivities within thataremoving toward socialism. them) Despitetherelative longev-

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

120

SPITZER

ityof"actually existing socialism"in theSovietUnion,China,and Eastern Europe,relatively fewaccounts oflaw havebeenable to penetrate cold war ideologyin the West and partysciencein the East. Since socialistlaw is rarelypresented to the West in otherthan approvedform, it has been extremely forWestern difficult scholars to assessitsdeeperdimensions and implications. This may also be true in insurrectionary or revolutionary their situations, and confusion although very fluidity creategreater opporfor study(e.g. Santos 1977, 1982; Issacman & Issacman 1982; tunities Spence 1982). However,neither "Socialism" nor "Capitalism,"at whatever stage of can be treated development, as a monolithic social formation or deformation.The growing theideologies, gaps between and realiself-conceptions, ties of legal affairs in both typesof systems providea fertile groundfor criticalresearch. A promising way of lookingat theseinconsistencies is theexamination of what Santos (1979) has called "dual power." Under stable pre- and situations as wellas during postrevolutionary periodsofrevolutionary ferment itis possible to identify embryonic, poorly and moreor less organized, and submerged transitory of "people's law." These arrangements systems mayexist or in explicit alongside, within, defiance ofofficial law. Everything from neighborhood justice,worker's courts, tribunals, and local mediation on theonehand,to vigilantism, systems thehidden and persistent economy, forms of "crime"(Black 1983) on theother, can embody thesestructures and episodes oflaw. The relationship between political constellations ofthis sortand their moreinstitutionalized can be studied counterparts within all ofeconomic types systems as partofthedialectic between law as alienation and praxis. In this and certainly otherways, questionsabout law and socialismcan be productively redefined. The fundamental questionframing this inquirymay now be restated: Whichis likelyto wither-law, sociologyor Marxism?The answerwill depend,of course,on whether Marxismcan meetthe challenge posed by itstheoretical crisis.A blinkered Marxismwillremain content to discount bothlaw and sociology in the"revolutionary struggle": law becauseit will inevitably "wither away"; sociologybecause "socialismsuppresses social science"(Cohen 1980:302). The unification oftheory and practice promises to end the sociology of law: "in the bright lightof socialismthe torchof the specializedinvestigator is invisible" (Cohen 1980:302). But thebright ofwhathas traditionally light beenpromoted as socialism mayblindas wellas reveal;it maybe Marxism, rather thanlaw therefore, or sociology, thatactually withers away.The declineofconventional Marxismas an explanatory system-onlyone aspectof whichI have examined here-is evenmorestriking whenwe consider thatithas beenaccompanied

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW

121

"success"(see Jacoby bytheunprecedented as a political 1981)ofMarxism rallying point.Whatever we think of Marxism'stheoretical strengths and it is important to keep in mindthat"about one thirdof the weaknesses, of statesregarding world'spopulationlives underthe governance themselvesas Marxist, and all thishas come about in littlemore thanhalfa century" (Gouldner1980:4). In reflecting on thecontradictions between Marxism's political and theoreticalstatusit is clearthattheMarxistanalysisof law need not standor fallon thebasis oflegal "successes"in actuallyexisting socialist societies, or, as some ideologswould have it, on its abilityto providea logically impenetrable, In appropriately pedigreed, and totally explanatory system. thosecases where Marxist theory givesup itssearchfor"universal rationalizingprinciples" (Horwitz1981) and itsclaimsto beingan all-encompassing cosmology-aspirations shared,ironically enough,by its archenemy positivism-it can getdownto thebusiness ofstudying law. At thatpoint, Marxistperspectives on law can becomepartof the projectthatMarxism holdsso dear-the harnessing oflaw to thepurposes ofsociety rather than the harnessing of society to the purposesof either or law. capitalism
Literature Cited Abel, R. L. 1980. Redirecting social studies of law. Law Society Rev. 14:805-29 Abel,R. L. 1981.A critique ofAmerican tort law. Br. J. Law & Society8:199-231 Abel, R. L. 1982. Torts. In The Politicsof Law, ed. D. Kairys,pp. 172-84. NY: Pantheon.321 pp. L. 1970. The object of Capital. Althusser, In Reading Capital, ed. L. Althusser, E. Balibar,pp. 71-198. NY: Pantheon. 340 pp. Althusser, L. 1971.Leninand Philosophy and Other Essays. NY: MonthlyReview Press. 253 pp. Anderson, P. 1974. Lineagesof theAbsolutist State. London: New Left Books. 573 pp. Bahro, R. 1978. The Alternative in EasternEurope. London: New LeftBooks. 463 pp. Balbus,I. 1977. Commodity form and legal form. Law & Society Rev. 11:871-88 Balibar,E. 1970. The basic conceptsof historical materialism. See Althusser 1970, pp. 199-309 Beirne, P., Quinney, R., eds. 1982. Marxism and Law. NY: Wiley.381 pp. P. 1980.Law and Marxism.Capital& Binns, Class 10:100-13 Am. Black,D. 1983.Crimeas social control. Sociol. Rev. 48:In press Black, J., ed. 1971. Radical Lawyers:Their Role in theMovement and in theCourts. NY: Avon Books. 320 pp. Bock, K. E. 1952. Evolutionand historical process.Am. Anthropol. 54:486-96 Cain, M., Hunt, A., eds. 1979. Marx and Engels on Law. London: Academic. 281 pp. Campbell,C., Wiles,P. 1980. Foreward.In Marx and EngelsonLaw and Laws, ed. P. Phillips, pp. ix-xi. Totowa, NJ: Barnes& Noble. 238 pp. W. J. 1964.A sociological Chambliss, analysis of the law of vagrancy. Soc. Probl. 12:67-77 Chambliss,W. J. 1979. Contradictions and in law creation. In Research conflicts in Law and Sociology, 2:3ed. S. Spitzer, 27. Greenwich, CT: JAI Press.274 pp. Cohen, G. A. 1978. Karl Marx's Theory of History.A Defense. Oxford: Oxford Univ. Press. 369 pp. Cohen,G. A. 1980.Karl Marx and thewitheringaway of social science.In Marx, Justice and History, ed. M. Cohen, T. Nagel, T. Scanlon,pp. 288-309. Princeton:Princeton Univ. Press. 309 pp. crimecontrol modCohen,S. 1982.Western els in thethird world:benignor malignant?In Research inLaw, Devianceand Social Control, Vol. IV, ed. S. Spitzer,

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

122

SPITZER

R. J.Simon.Greenwich, CT: JAI Press. accountsofstateand law. See Beirne& 238 pp. Quinney,1982,pp. 196-209 R. 1981a. Conceptualizing Cotterrell, law: Greenberg, D. F. 1976. On one-dimensional problemsand prospects of contempomarxist & Society criminology. Theory rarylegal theory. Econ. & Society 10: 3:610-21 348-66 Greenberg, D. F., ed. 1980a.Crime and CapiR. 1981b. The development Cotterrell, of talism:Readings in Marxian Crimincapitalism and theformalisation ofconology.Palo Alto,CA: Mayfield. 506 pp. tract law. In Law, Stateand Society, ed. Greenberg, D. F. 1980b.Law and economic B. Fryer,A. Hunt, D. McBarnet,B. in light development ofdependency theMoorhouse, pp. 54-69. London:Croom ory.See Gabel 1980,3:129-60 Helm. 234 pp. D. F., Anderson, Greenberg, N. 1981.Recent Currie, E. 1971. Sociology of law: the marxisant bookson law: a review essay. unasked questions. Yale Law J. 81: Contemp. Crises5:293-322 134-47 Hall, S. 1980.Drifting Intoa Law and Order Edelman,B. 1979. Ownership of theImage: Society.London: Cobden Trust Elements fora MarxistTheory ofLaw. Hall, S., Critcher, C., Jefferson, T., Clarke, J., Boston: Routledge & Kegan Paul. Roberts,B. 1978. Policingthe Crisis: 217 pp. theState,and Law and Order. Mugging, Fine, B., Kinsey,R., Lea, J., Picciotto,S., London: MacMillan. 425 pp. Young, J., eds. 1979. Capitalismand Hay, D. 1975.Property, and crimiauthority theRule ofLaw. London:Hutchinson. nal law. In Albion'sFatal Tree,ed. D. 200 pp. Hay, P. Linebaugh,J. G. Rule, E. P. P. 1980a. Law, modernization Fitzpatrick, Thompson, C. Winslow, pp. 17-63. and mystification. In Researchin Law NY: Pantheon.352 pp. and Sociology, ed. S. Spitzer, 3:161-80. Hirst, P. Q. 1979. On Law and Ideology. CT: JAI Press. 344 pp. Greenwich, Atlantic Highlands, NJ: Humanities. P. 1980b. Law and State in Fitzpatrick, 181 pp. Papua New Guinea. London: Aca- Hirst,P. Q. 1980.Law, socialism and rights. demic.290 pp. In Radical Issues in Criminology, ed. & Punish.NY: Foucault,M. 1977.Discipline P. Carlen, M. Collison, pp. 58-108. Pantheon.333 pp. Totowa, NJ: Barnes& Noble. 212 pp. Fraser,A. 1978. The legal theory we need Homans,G. 1964.Bringing menbackin.Am. now. SocialistRev. 40-41:147-87 Sociol. Rev. 29:809-18 Freeman,A. 1978. Legitimizing racial dis- Horwitz,A. 1977. Marxisttheories of devicriminationthrough anti-discriminaance and teleology: a critique ofSpitzer. tion law: a criticalreviewof supreme Soc. Probl. 24:362-63 court doctrine. Minn. Law Rev. 62:1I Horwitz, M. J. 1977. The Transformation of 1049-1119 American Law 1780-1860. Cambridge, A. 1982.Antidiscrimination Freeman, law: a MA: HarvardUniv. Press. 356 pp. criticalreview. See Abel 1982,pp. 96- Horwitz,M. J. 1981. The historical contin116 oftheroleofhistory. gency Yale Law J. Gabel, P. 1977. Intention and structure in 90:1I 1057-59 contractualconditions:outline of a Hunt,A. 1981.The radicalcritique oflaw: an methodforcritical legal theory. Minn. assessment. Int. J. Sociol.Law 8:33-46 Law Rev. 61:601-43 M. 1978. A JustMeasure of Pain. Ignatieff, Gabel,P. 1980.Reification in legalreasoning. NY: Pantheon.257 pp. In Researchin Law and Sociology, ed. Ignatieff, M. 1981.State,civilsociety and toS. Spitzer, 3:25-52. Greenwich,CT: tal institutions: a critiqueof recentsoJAI Press. 344 pp. cial histories of punishment. In Crime Gabel,P., Feinman, J.M. 1982.Contract law and Justice, ed. N. Morris,M. Tonry, as ideology. In The Politics ofLaw, ed. 3:153-92.Chicago:Univ.ChicagoPress D. Kairys,pp. 172-84. NY: Pantheon. Issacman,B., Issacman,A. 1982.A socialist 321 pp. legal systemin the making:MozamA. W. 1980. The TwoMarxisms. Gouldner, and after biquebefore In independence. NY: OxfordUniv. Press. 397 pp. The Politics ofInformal ed. R. Justice, Gramsci,A. 1971. SelectionsFrom Prison L. Abel, 2:281-324. NY: Academic. ed. Q. Hoare, G. N. Smith. Notebooks, 338 pp. NY: International. 483 pp. Jacoby,R. 1977-78. The politicsof objecGrau, C. W. 1982. What happenedto politivity:notes on the U.S. left. Telos tics?a critique of structuralist marxist 34:74-88

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

MARXIST SOCIOLOGY OF LAW


R. 1981.DialecticofDefeat: Contours Jacoby, CamMarxism.Cambridge: of Western bridgeUniv. Press.202 pp. B. 1980. On recent Marxisttheories Jessop, of law, the state,and juridico-political ideology.Int. J. Sociol. Law 8:339-68 See Kahn-Freund,0. 1949. Introduction. Renner1949,pp. 1-43 D. 1978.Ideology, marxism, and adKellner, Rev. 43:37Socialist vancedcapitalism. 66 of crimeand Kelman,M. 1982. The origins criminalviolence. In The Politics of Law, ed. D. Kairys,pp. 214-29. NY: Pantheon.321 pp. J. Legal D. 1973.Legal formality. Kennedy, Stud. 2:351-98 Kennedy,D. 1976. Form and substancein law adjudication. HarvardLaw private Rev. 89:1685-1778 of BlackKennedy,D. 1979. The structure Law Rev. Buffalo stone'scommentaries. 28:205-382 and thelaw: preKinsey,R. 1978.Marxism Br. J.Law & Society analyses. liminary 5:202-27 In Kinsey,R. 1979.Despotismand legality. and theRule ofLaw, ed. B. Capitalism J. J. Lea, S. Picciotto, Fine,R. Kinsey, Young, pp. 46-64. London: Hutchinson. 200 pp. 0. 1969.The legalorder ofNaKirchheimer, Law and tional Socialism.In Politics, Social Change,ed. F. S. Burin,K. L. Shell, pp. 88-109. NY: Columbia. 483 pp. of deradicalization Klare, K. 1978. Judicial ofmodAct and theorigin theWagner em legal consciousness, 1937-1949. Minn. Law Rev. 62:265-339 as praxis.Telos Klare,K. 1979.Law-making 40:123-35 Klare, K. 1981. Labor law as ideology:towarda newhistoriography ofcollective law. Indust.Relat. Law J. bargaining 4:450-82 and laborretheory Klare, K. 1982.Critical lationslaw. See Abel 1982,pp. 65-88 Laclau, E. 1977. Politicsand Ideology in Marxist Theory.Atlantic Highlands, 203 pp. NJ: Humanities. develLea, J. 1979.Disciplineand capitalist See Fine et al 1979,pp. 76-89 opment. thePeoR., ed. 1971.Law Against Lefcourt, ple. NY: Vintage.400 pp. Lichtman, R. 1975. Marx's theory of SocialistRevol. 23:45-61. ideology. Marx, K. 1970a. Capital, Vol. I. London: 767 pp. Lawrence& Wishart. Ideology.NY: Marx,K. 1970b.The German 158 pp. International.

123

McManus, J. J. 1978. The emergence and non-emergence oflegislation. Br.J.Law & Society5:185-201 Merritt, A. 1980. The natureof law. Br. J. Law & Society7:194-214 Miliband, R. 1977. Marxism and Politics. Oxford:OxfordUniv. Press. 199 pp. Mullin,N. 1980.Pashukanis and thedemise oflaw: an essayreview. Contemp. Crises 4:433-38 Muraskin,W. A. 1976. The social-control in Americanhistory: theory a critique. J. Soc. Hist. 9:559-69 F. 1944.Behemoth: TheStructure Neumann, and Practice of National Socialism 1933-44. NY: Oxford Univ. Press. 649 pp. and the Neumann,F. 1957. The Democratic Authoritarian State. NY: Free Press. 303 pp. Olsen,F. 1983.The market and thefamily: a and legalreform. Harofideology study vardLaw Rev. 96:In press E. B. 1978. Law & Marxism:A Pashukanis, ed. C. J.Arthur. LonGeneralTheory, don: Ink Links. 195 pp. E. B. 1980.Pashukanis: Selected Pashukanis, on Marxismand Law, ed. P. writings R. Sharlet; P. B. Maggs. transl. Beirne, London: Academic Phillips,P., ed. 1980. Marx and Engels on Law and Laws. Totowa,NJ: Barnes& Noble. 238 pp. of the state, Picciotto,S. 1979. The theory and the role of law. See class struggle Fine et al 1979,pp. 164-77 Piven,F. F., Cloward,R. A. 1971. Regulating thePoor. NY: Vintage.348 pp. of law and Polan, D. 1982. Towarda theory patriarchy. See Abel 1982,pp. 294-303 K. 1957. The GreatTransformation. Polanyi, Boston:Beacon. 315 pp. Powerand SoPoulantzas,N. 1973. Political cial Classes. London: New LeftBooks Poulantzas, N. 1978.State,Power, Socialism. London: New LeftBooks. 269 pp. Poulantzas, N. 1982. Law. See Beirne & Quinney1982,pp. 185-95 R. 1974. The Critique Quinney, ofLegal Order. Boston:Little,Brown.206 pp. Rafter,N. H., Stanko, E. A., eds. 1982. Judge, Lawyer,Victim, Thief:Women, Gender Roles and Criminal Justice. Boston: Northeastern Univ. Press. 383 pp. theruleof Redhead,S. 1982.Marxist theory, law and socialism.See Beirne& Quinney 1982,pp. 328-42 K. 1949. The Institutions Renner, of Private ed. 0. Law and TheirSocial Functions, Kahn-Freund.Boston: Routledge & Kegan Paul. 307 pp.

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions

124

SPITZER
Sugarman, D. 1981. Theoryand practicein law and history: a prologue to thestudy of the relationship betweenlaw and economyfroma socio-historical perspective. In Law, Stateand Society, ed. B. Fryer,A. Hunt, D. McBarnet,B. Moorhouse, pp. 70-106. London: Croom Helm. 234 pp. Sumner, C. 1979. ReadingIdeologies: An Investigation into the Marxist Theory of Ideology and Law. London:Academic. 313 pp. Sumner,C. 1981. The rule of law and civil in contemporary rights marxist theory. Kapitalistate 9:63-92 Taub, N., Schneider, E. M. 1982. Perspectiveson women'ssubordination and the role of law. See Abel 1982,pp. 117-39 Taylor,I., Walton,P., Young, J. 1973. The New Criminology. Boston:Routledge & Kegan Paul. 325 pp. Thompson, E. P. 1975. Whigsand Hunters: The Origin oftheBlackAct.NY: Pantheon. 312 pp. E. P. 1978. ThePoverty Thompson, ofTheory and OtherEssays. NY: MonthlyReview Press. 404 pp. Thompson,E. P. 1979. The rule of law in English history. Bulletin oftheHaldane Societyof Socialist Lawyers. London: Haldane Society.10 pp. Tushnet,M. 1979. Truth,justice and the American way: an interpretation of publiclaw scholarship in theseventies. Tex. Law Rev. 57:1307-59 Tushnet,M. 1981. The dilemmasof liberal constitutionalism. Ohio State Law J. 42:411-26 M. 1982.Marxism Tushnet, and critical legal studies.Presented at Ann. Meet. Conf. Crit.Legal Stud.,Boston. Unger,R. M. 1975. Knowledge and Politics. NY: Free Press. 336 pp. Unger,R. M. 1976. Law in ModernSociety. NY: Free Press. 309 pp. Unger,R. M. 1983.The critical legal studies movement.Harvard Law Rev. 96:In press

Rosenblatt, R. 1981. Health care, markets, and democratic values. Vanderbilt Law Rev. 34(2):1067-1115 Santos, B. D. S. 1977. The law of the oppressed: theconstruction and reproductionoflegality in Pasargada.Law & SoRev. 12:5-126 ciety Santos,B. D. S. 1979. Popularjustice,dual powerand socialist strategy. See Fine et al 1979,pp. 151-63 Santos,B. D. S. 1982.Law and revolution in Portugal: theexperience ofpopular justiceafter the25thofApril 1974.In The Politicsof Informal Justice, ed. R. L. Abel,2:251-80.NY: Academic.338 pp. R. 1978.Pashukanis Sharlet, and thewitheringaway oflaw in theU.S.S.R. In Cultural Revolution inRussia,1928-31,ed. S. Fitzpatrick.Bloomington: Indiana Univ. F. G. 1980.Law and development Snyder, in the lightof dependency Law & theory. Society14:723-804 Sparks,R. F. 1980. A critiqueof Marxist In Crimeand Justice, criminology. ed. N. Morris, M. Tonry, 2:159-210. Chicago: Univ. Chicago Press.470 pp. Spence,J. 1982. Institutionalizing neighborhood courts:two Chilean experiences. See Santos 1982,2:215-50 Spitzer, S. 1975.Punishment and socialorganization: a study ofDurkheim's theory of penal evolution. Law & Society Rev. 9:613-37 Spitzer,S. 1977. On the marxiantheory of social control: a reply to Horwitz.Soc. Probl. 24:364-66 Spitzer, S. 1979.The rationalization ofcrime controlin captialistsociety.Contemp. Crises3:187-206 H. 1977. Againsta conspiracy Steinert, theoryof criminal law aproposHepburn's 'socialcontrol and thelegalorder.'Contemp.Crises 1:437-40 Stone,K. 1981. The post-war paradigmin American laborlaw. Yale Law J. 90:1I 1509-80

This content downloaded from 200.17.250.184 on Fri, 28 Feb 2014 10:29:55 AM All use subject to JSTOR Terms and Conditions