Critical Education Articles Placed in the Teacher Staff Lounge While I Was a Teacher, Part Twenty-Nine: Law and the Class Power of Employers

When I was a French teacher at Ashern Central School, in Ashern, Manitoba, Canada, I started to place critiques, mainly (although not entirely) of the current school system. At first, I merely printed off the articles, but then I started to provide a summary of the article along with the article. I placed the summaries along with the articles in a binder (and, eventually, binders), and I placed the binder in the staff lounge.

As chair of the Equity and Justice Committee for Lakeshore Teachers’ Association of the Manitoba Teachers’ Society (MTS), I also sent the articles and summary to the Ning of the MTS (a ning is “an online platform for people and organizations to create custom social networks”).

As I pointed out in a previous post, it is necessary for the radical left to use every opportunity to question the legitimacy of existing institutions.

The attached article for the ESJ Ning is prefaced by the following:

Hello everyone,

Attached is another article that I was going to send to the ESJ Ning; however, the maximum of 3 MB for uploads prevented me from uploading it on the Ning. However, I did provide a summary as follows:

Those interested in issues of equity and social justice must, if they are to address social problems and seek to contribute to their solution, must confront the equity and social justice of modern legal relations, or “the law.”

Alan Stone, in the following article, “The Place of Law in the Marxian Structure-Superstructure Archetype,” provides an explanation of how legal relations and the rule of law operate in modern capitalist society. His argument, implicitly, questions the assumption by many that “the law” is neutral. He implies that the law is systematically biased towards those who own and control lots of property and other people’s lives.

Explanations about law must be connected to the economic structure of society, and that society is decidedly still a capitalist economic structure. The idea that legal relations are irrelevant for human relations in modern society is, of course, absurd, and yet some have believed just that. Others, however, have more subtle views about the nature of legal relations.

Some, however, will point out that Marx considered the law part of the “superstructure.” He undoubtedly did because the superstructure has to do with “will” and “consciousness” without any direct connection to the economic structure per se. The economic structure, on the other hand, does connect human beings to the natural world, and that connection is “independent of the will” of people. It is this relationship that takes ultimate precedence over legal relations.

The connection between economic relations and legal relations, according to Stone, can be characterized as legal relations that are more or less directly connected to the economic structure. In capitalist society, workers are separated from the conditions for the exercise of their labour; they do not own the means for producing something.

They offer their capacity to work (not a separate commodity), to employers, and they receive a wage or salary. The relation between employers and employees assumes the form of a contract, and the contract stipulates the transfer of control over their capacity to work to the employer. The results of that labour become the property of the employer. Furthermore, the employer controls the activity of the employee, either by specifying how something is to be done or (in the case of more professional employees) by specifying what is to be done and the standards for assessing the quality and quantity of what is done.

Marxism cannot predict exactly what judges will decide in particular cases, but it can explain that judges, legislators, the police and the military are constrained in certain ways that favour employers over employees.

Stone argues that there are certain legal relations that are relatively constant, such as property and contract. They are somewhat flexible legal relations, but they form what stone calls essential legal relations.  Laws pertaining to these areas may bend under force, but they are close to the economic structure and thus will change only within certain limits—unless a new economic structure emerges.

Eugene Pashukanis’ work illustrates the nature of the intimate connection between essential legal relations and economic structures. The market is generally characterized by equal exchange of the value of commodities (hence stems the ideology of formal equality between workers and employers) and no direct force used to obtain the commodities that others own (although, in the capitalist economic structure, the structure itself is such that workers are obliged to work for an employer although not a particular employer)—hence stems the ideology of freedom or liberty. These formal characteristics of economic relations are the typical way in which workers are linked to the machines and other means by which they produce their lives (as subordinates, of course, of employers). Contract is the medium in which capitalist relations are established—supposedly on a “free” basis of economic equality (but, in fact, on the basis of inequality).

This analysis, as Stone notes, is applicable to civil law (although the issue of how law applies during work relations, where inequality and dictatorship among employers and workers reign, is left unspecified by Pashukanis), but Pashukanis overextends it to criminal law. (Pashunkanis, by the way, was one of the many Marxists who “disappeared” under Stalin.)

Pashukanis’ theory permits an understanding of the role of law in capitalist society (in the form of essential legal relations) without reducing law to a mere tool in the hands of employers. The employers, as a class, have their interests realized in the very form of the law; the law is, in that sense, an instrument of the ruling class without being a mere tool that they can use as they wish. The law, in other words, has its own rules or “laws,” but these laws are, ultimately, laws within the limits of the capitalist economic structure.

In addition to the limitation of Pashukanis’ approach to criminal law, he cannot account for the development of administrative law—especially In its limitations on the powers of employers (such as environmental laws).

The limitations of Pashukanis’ analysis of capitalist legal relations, however, do not contradict the above distinction between essential legal relations and particular applications of them. Marxian theory, by focusing on the essential legal relations, can account for the limits within which judges, legislators and the like function and not for the particular decisions that they make.

The essential legal relations are relations characteristic of any society where the capitalist economic structure, where workers are commodities (where there is a market for workers) and employers hire them. Essential legal relations are relations that cannot be changed without changing the fundamental economic structure. Unessential legal relations (or laws) are laws that can be changed without changing the fundamental economic structure.

The capitalist economic structure, as implied above, involves one class owning the conditions for others to continue to live through their work. In the brewery where I used to work, for instance, it was a South African firm that owned the machines (the building, the saw, the soaker, the filler, the labeler and so forth). We workers did not own anything there.) This is a basic two-class model, with employers on one side and employees or workers on the other. Of course, in the real world, there may be more classes, but what some call the middle class is really a higher-paid section of the working class.

On the other hand, this ownership of the means of production does not involve ownership of those who use the means of production. Employers must participate in a contract in order to force workers to use the means of production. Similarly, workers, if they are to use the means of production, must participate in a contract. The capitalist economic system is not slavery (although slavery certainly aided in the formation of a capitalist economic structure). The employer cannot purchase workers once and for all. They can, however, purchase workers for a period of time through the form of the contract.

It is through the form of the contract (the employment contract in the case of individual employees and the collective agreement in the case of a group of employees) that the class relation is perpetuated. The form of the contract makes it appear that the employment relationship is voluntary (since legal relations in other areas of civil law are more often voluntary relations that depend on the mutual will of the participants to the contract).The output that we produced was, by law, the property of the owners of the means of production. We, by law, generally are then able to purchase consumption goods that enable us to continue to be employees but are insufficient to become independent owners of the means of production on our own account. If we obtained a sufficient surplus to become independent, we would then not be employees and employers would not exist. The economic structure, along with the legal system (and other institutions, such as schools), tend to ensure that the working class has neither the power nor the desire to seek to become independent of employers. Capitalism as a system would cease to exist under such circumstances, and the violent power of the government has tended to oblige reluctant employees to resume their status as employees (as in fact happened in Oaxaca, Mexico, for instance).

The contractual form tends to make it appear that the relation between the class of employers and the class of employees is voluntary, but it is not in fact voluntary. Individual workers are certainly not obliged to work for a particular employer (unlike a peasant under a feudal structure, who was indeed obliged to be under the power of one lord), and hence are freer than a feudal peasant. However, the working class is not free to stop working for the class of employers. Indeed, such an action is called a general strike. Even the recent partial strike of railway workers was ended through legislation.

As Stone notes, the second feature of essential legal relations is property or ownership—but property in an absolute or exclusive sense. Property under feudal economic structures involved no “absolute” property that we know today. The peasant could use common lands, for example, to take wood for use, or the village could use the lands in common for use as food for their animals (if they had any). Furthermore, lords had an obligation to provide for the serfs when crises occurred (such as famines); employers have no such legal responsibility.

With the development of a capitalist economic structure, with employers on one side and employees on the other, the emergence of absolute property arose. The employer owned the total output produced by the workers and had no further obligation to them except as specified in the contract. Property became much more sellable with the development of a capitalist economic structure.

The development of social relations, accordingly, assumed increasingly the form of relations according to contract and property in terms of absolute property.

Stone then argues that, when considering the dynamics of the capitalist economic structure, credit and combinations of wealth are required; hence these relations too constitute essential legal relations. Capitalists are not concerned with just obtaining as much money once but on a repeated basis—a cycle of continuous production and receipt of profit. In the capitalist economic structure, money (M1) is used to purchase commodities (C) (workers and means of production), and the produced commodities (say beer) is then sold for a profit (M2, with M2 greater in value than M1). As capitalist production develops, the scale of production increases so that more M is required even to begin a business; credit fills in this gap in providing more money than a particular capitalist owns. The need for credit also arises from the side of the sale and not just from the side of the purchase. If the scale of the purchase is such that people cannot purchase them unless they save for a number of years, the sale of the commodity can occur through credit. The purchase of a house is an example. Hence, the relation of creditor and debtor arises from the economic structure itself, and the legal relations of creditor and debtor constitute essential legal relations.

Combinations of wealth are another way in which the capitalist economic structure requires essential legal relations. Like credit, combinations of wealth permit the purchase of commodities at a scale that permits the production of certain commodities that could not be produced otherwise (consider the construction of an automobile factory). Combinations of wealth may also lead to savings by forming just one unified form of wealth rather than many individual contracts; the corporation is an example of the corresponding legal form. (From the side of workers, we can also note that the collective agreement combines individual contracts into one contract.)

These four essential legal relations–contract, absolute property, credit and combinations of wealth—then form general legal relations upon which more refined legal relations arise. Many crimes and civil wrongs (torts) are further developments of these four essential legal relations (although it still needs to be explained why certain actions are classified as crimes and others are classified otherwise).

Some legal relations, Stone claims, may modify those essential relations or even erode them (such as environmental laws), but then there will be frictions and conflicts since the fundamental capitalist economic structures and the essential legal relations are closely linked so that the erosion of essential legal relations may threaten the capitalist economic structure, which in all likelihood will result in a reaction by employers and others whose interests are being threatened.

The essential legal relations are closely linked to the capitalist economic structure and are thus merely legal expressions for the capitalist economic structure. Other social relations, such as philosophy, religion, art, schooling and so forth are more or less linked to the capitalist economic structure and thus are more or less essential for the capitalist economic structure. Art, for instance, as a university discipline, is hardly as important to the capitalist economic structure as are schools. Hence, schools are more likely to be more tightly controlled and funded to a greater extent, proportionately, than are art departments. There are thus a hierarchy of social relations that are more or less closely linked to the capitalist economic structure and more or less closely express those economic structures. The further away from the capitalist economic structure, the less control the capitalist economic structure will likely have over those relations and activities.

The level of freedom practiced in diverse areas of life dominated by a capitalist economic structure will thus vary according to the degree to which the relations in a particular sphere are linked to the capitalist economic structure.

Stone then specifies in further detail how essential legal relations are subdivided into derivative subrelations that in turn specify particular legal rules that judges can use when faced with particular cases.

This analysis explains how judges express systematically both a bias that favours employers and possible variations in judgement. All judges accept the essential legal relations as valid (contract, absolute property, credit and combinations of wealth) implicitly even if they are unaware of what they are doing. They use the subrelations to separate out different cases and then apply particular legal rules. Since judges may disagree over whether a case falls within a subrelation (or whether a particular case has more to do with property or with credit, for instance), and may also select different legal rules within each subrelation, there is ample room for variation in judgement—while still maintaining the basic capitalist economic structure. They may be wrong (as appeal courts have shown), or their decisions may in fact conflict with the basic capitalist economic structure on occasion, but for the most part their implicit acceptance of the basic legal relations leads to a convergence towards a legal system that maintains the capitalist economic structure.

This explanation of the legal system also aids in determining when the social system is being threatened. When more and more people begin to question the essential legal relations, then the capitalist economic structure is in danger of being threatened.

Up to now, Stone has analysed private law. He then analyzes public law, which can actually be in opposition to the interests of the capitalists.

Stone generally considers public law to be an extension and modification of private law. Individuals form groups (remember that combinations of wealth form one of the essential capitalist relations) that then pursue their own interests in opposition to other groups. Fractions of the capitalist class (such as money lenders, industrial capitalists, commercial capitalists, export capitalists, import capitalists and so forth) pressure the government to institute laws in their favour (and often in opposition to the interests of other groups). Workers, too, fragment along public/private, gender, occupation, ethnic and other lines and pressure the government to institute laws in their favour.

Stone gives the example of a public utility, which generally forms a monopoly. Consumers may band together and oblige the government to create a law that prohibits monopoly prices. However, the government will not institute a law that questions any of the four essential legal relations—not without a system-wide struggle by employers, at any rate.

As Stone concludes, workers and others may win battles against particular employers or against all employers (such as the abolition of the illegality of forming unions), but these victories are consistent with treating legal relations as essentially expressions of the capitalist economic structure.

The question that those interested in equity and social justice issues should then ask themselves is: If the legal system in its very core of essential legal relations expresses the capitalist economic structure, is the capitalist economic structure a just structure? If it is just, then the legal system is generally just. If, however, the capitalist economic structure is unjust, then the legal system is generally unjust. If the legal is unjust, then those who use the idea that we should follow “the law”—are advocating for injustice.