Introduction
Jeff Noonan, supposedly a Marxist philosopher, in a recent post (https://www.jeffnoonan.org/?p=5864#comments) has the following to say on his blog:
Practically speaking, there are no revolutionary movements of any consequence. So the question is: what does one do right now: abstractly condemn the rule of law as a bourgeois subterfuge? Or criticise the reality of the exercise of law on the basis of a defence of the value of the idea of the rule of law and work to realise that idea as far as possible in a given moment, and then work to push it further the next?
If one rejects the value of the idea of the rule of law it seems to me that one cuts oneself off from being a participant in the actual political arguments of the day.
Noonan’s cavalier dismissal of “revolutionary movements of no consequence” is superficial at best. Although I rarely argue explicitly for revolution since I doubt that most workers are more concerned with issues relevant to their own lives, and talk of revolution would require an in-depth conversation with them about their lives, their problems and possible solutions, the idea of aiming for ending the class power of employers (capitalism) is certainly revolutionary in its implications.
Ending the class power of employers is certainly not on the agenda of most leftist movements these days. Leftist social democrats and social reformers, of course, have no intention of doing anything more than reforming such a society–not questioning its very foundation. Noonan falls within the same category; he simply places any such goal to be out of the question in the present.
Of course, by placing the goal outside of the present, he in effect condemns workers to be exploited and oppressed for eternity–for when is the issue of the class power of employers ever to be addressed if it is always pushed out of the present into some vague distant future (if that)?
Those who oppose the class power of employers (certainly not Noonan), however, have to do something in the present if they are to realize that goal. There is no other place where we can start except the present (which is, admittedly, a moving present as the future itself becomes the present and the present moment becomes the past).
John Dewey’s Superior View of Internal or Good Aims and His Criticism of External or Bad Aims
John Dewey–a far superior social-democratic philosopher than Noonan”s brand–argued something similar when distinguishing between internal aims and external aims.
Let us look at John Dewey’s view of the nature of aims to see the difference between an internal aim (what Dewey called a good aim) that incorporates the future in the present and an external aim that has little relation to the present. From Democracy and Education (2004). Let us begin with his characterization of a good aim:
The aim must always represent a freeing of activities. The term end in view is suggestive, for it puts before the mind the termination or conclusion of some process. The only way in which we can define an activity is by putting before ourselves the objects in which it terminates—as one’s aim in shooting is the target. But we must remember that the object is only a mark or sign by which the mind specifies the activity one desires to carry out. Strictly speaking, not the target but hitting the target is the end in view; one takes aim by means of the target, but also by the sight on the gun. The different objects which are thought of are means of directing the activity. Thus one aims at, say, a rabbit; what he wants is to shoot straight; a certain kind of activity. Or, if it is the rabbit he wants, it is not rabbit apart from his activity, but as a factor in activity; he wants to eat the rabbit, or to show it as evidence of his marksmanship—he wants to do something with it. The doing with the thing, not the thing in isolation, is his end. The object is but a phase of the active end,—continuing the activity successfully. This is what is meant by the phrase, used above, “freeing activity”.
An aim that does not organize activities and means in the present is an external or bad aim.
Let us now turn to his characterization of a bad aim–what is typical of the social-democratic or social-reformist left in general and Noonan’s attitude in particular. Dewey had this to say:
In contrast with fulfilling some process in order that activity may go on, stands the static character of an end which is imposed from without the activity. It is always conceived of as fixed; it is something to be attained and possessed. When one has such a notion, activity is a mere unavoidable means to something else; it is not significant or important on its own account. As compared with the end it is but a necessary evil; something which must be gone through before one can reach the object which is alone worth while. In other words, the external idea of the aim leads to a separation of means from end, while an end which grows up within an activity as plan for its direction is always both ends and means, the distinction being only one of convenience. Every means is a temporary end until we have attained it. Every end becomes a means of carrying activity further as soon as it is achieved. We call it end when it marks off the future direction of the activity in which we are engaged; means when it marks off the present direction.
A quote from Dewey in another post is also relevant (see Intelligent Activity According to John Dewey: Its Political Implications for the Left):
The net conclusion is that acting with an aim is all one with acting intelligently. To foresee a terminus of an act is to have a basis upon which to observe, to select, and to order objects and our own capacities. To do these things means to have a mind—for mind is precisely intentional purposeful activity controlled by perception of facts and their relationships to one another. To have a mind to do a thing is to foresee a future possibility; it is to have a plan for its accomplishment; it is to note the means which make the plan capable of execution and the obstructions in the way,—or, if it is really a mind to do the thing and not a vague aspiration—it is to have a plan which takes account of resources and difficulties. Mind is capacity to refer present conditions to future results, and future consequences to present conditions. And these traits are just what is meant by having an aim or a purpose. A man is stupid or blind or unintelligent—lacking in mind—just in the degree in which in any activity he does not know what he is about, namely, the probable consequences of his acts. A man is imperfectly intelligent when he contents himself with looser guesses about the outcome than is needful, just taking a chance with his luck, or when he forms plans apart from study of the actual conditions, including his own capacities. Such relative absence of mind means to make our feelings the measure of what is to happen. To be intelligent we must “stop, look, listen” in making the plan of an activity.
Intelligent activity–which is really intelligent thinking–involves the unity of the future in the present and the present in the future.
The Rule of Law: Rhetoric Versus Reality
Although workers, citizens, immigrants and migrants should undoubtedly use all legal provisions that they can–not as a substitute for their organization, but as a supplement to such organization–they should also distinguish rhetoric versus reality.
Noonan seems to recognize the rhetoric of the law versus its reality when he writes:
But that is just an idea: in reality law does not “keep fair play” but is a partisan tool to advance the interests of the groups with the power to write and enforce it.
Or again:
The nakedly partisan division in the current US supreme court supports the Marxist argument that behind the appearance of legal neutrality lies the reality of class power. Almost every decision that this court has made has split along conservative-liberal lines. But that division is only the surface expression of a deeper structural problem. Liberals and conservatives in the US and elsewhere represent two factions of the same ruling class: no matter which one exercises political power, they are both representatives of the class that owns and controls the resources and wealth that everyone needs to access in order to survive and live full, meaningful, valued and valuable lives. Law is thus– as Glaucon warned– class interest expressed in abstractly universal form.
Fair enough. It would be difficult to dispute that the ultimate power protected by law is private property. Think back a few summers to the Wet’suwet’en blockade against the passage of the Transmountain pipeline through their territory. Despite the fact that the Canadian Constitution recognizes the validity of Indigenous law, when push came to shove, and the exercise of Indigenous law was going to impede a project deemed of paramount economic significance, the courts sided with the Liberal government and helped force the pipeline through Wet’suwet’en territory.
It is interesting that Noonan chooses a particular situation in which the Canadian legal system involved forcing through the interests of a particular section of private employers. Why did he select such a particular example? What of the legal system supporting, systematically, employment and labour laws that involve the daily use of workers for the benefit of the class of employers? Would it be so that Noonan can propose shoring up the legal system via a shoring up of the “rule of law” rather than questioning the validity of the legal system?
Given Noonan’s rejection of aiming for socialism in the present, he then dogmatically claims that socialists are condemned to choose at the present moment between abstractly criticizing the rule of law or in trying to realize the principle of the rule of law as a reality, presumably so that the reality of law would correspond much more to the rhetoric of law:
So the question is: what does one do right now: abstractly condemn the rule of law as a bourgeois subterfuge? Or criticise the reality of the exercise of law on the basis of a defence of the value of the idea of the rule of law and work to realise that idea as far as possible in a given moment, and then work to push it further the next?
Noonan’s conclusion is of course false because his premise of not being able to fight for socialism in the present is impossible, as we saw above.
By the way, Noonan’s proposal in the last sentence is typical of social reformers; let us reform the present institutional structure, and this reform will then provide the basis for further reforms, until a socialist society comes into existence. The problem with such an approach is that it can be easily then be co-opted (see Thomas Mathiesen’s analysis in the context of law and prisons in Law, Society and Political Action: Towards a Strategy Under Late Capitalism (1980) and The Politics of Abolition Revisited (2014). Noonan simple ignores the issue of how socialists are going to take measures to prevent being co-opted by the capitalist state.
One final point: In Noonan’s reference to the following as quoted above,
Despite the fact that the Canadian Constitution recognizes the validity of Indigenous law, when push came to shove, and the exercise of Indigenous law was going to impede a project deemed of paramount economic significance, the courts sided with the Liberal government and helped force the pipeline through Wet’suwet’en territory.
he adds the following in order to separate the rule of law from its execution:
But it was not “the law” that enforced itself, but the RCMP armed with military grade weapons.
Noonan in no way shows how the law as legal form can be divorced from its further elaboration and its ultimate translation into force via the Royal Canadian Mounted Police (RCMP) or other form of separate executive power. To separate law or the legal form from its execution by an organization designed to monopolize coercion is quite convenient for academic reformists who idealize the rule of law and seek to reform it without questioning how the ideal rule of law is going to be realized–without such a monopoly of force.
There is an additional reason why Noonan’s idealization of the rule of law remains inadequate: this issue has to do with Pashukanis’ criticism, not of the content of law, but of its form. That issue, however, will be addressed in a follow-up post later on.
Conclusion
Noonan–because he does not see any effective “revolutionary” movement in the present–dismisses any intent to overcome the class power of employers in the present (the only domain for beginning any aim) and subsitutes for it a desire to shore up the “rule of law.” Such an approach pushes socialism into an ever distant future–very much akin to the social reformist Eduard Bernstein. Such an approach vastly underestimates the danger of being co-opted by his reformist tendencies.
The Abolitionary 