Introduction
This is a continuation of a critique of the views of Jeff Noonan, an academic leftist who teaches philosophy (including Marxist philosophy) at the University of Windsor in Ontario, Canada. In an earlier post (The Poverty of Academic Leftism, Part Eleven: Superficial Rejection of Aiming for a Socialist Society in the Present by Idealizing the Rule of Law in the Present: Part One), I analysed critically Noonan’s implicit view that we should not aim for socialism directly since workers are not, for the present, organized to achieve such a goal.
He then proposes that we seek to shore-up the rule of law as a first step in a movement towards socialsm.. This post will critically look at his proposed solution.
Can Socialists Use the Law to Fight for Socialism?
Is the Problem with the Rule of Law Only the Class Content of the Law (the What of the Rule of Law)?
Noonan sees nothing wrong with the rule of law in itself. Rather, it is not the rule of law that forms part of the problem, but the class content that leads to the distortion of the rule of law:
The problem with the liberal rule of law is that it is not yet the law that rules [my emphasis], but ultimately the class interests of the owners and controllers of capital [my emphasis]. But few could be so historically naive as to trust that a post-revolutionary society could rely on the commitments of its leaders to recognise and respect boundaries to their power. The idea of the rule of law cannot on its own constrain power, but the fact that it imposes regulatory principles whose validity does not depend upon their being recognized by governments of the day was a vital step towards democratic society.
Can workers, citizens, immigrants and migrant workers use the law for their own purposes at times? They can, but within restricted circumstanes more often than not. From Sonja Buckel (2021), Subjectivation and Cohesion Towards the Reconstruction of a Materialist Theory of Law, page 267:
[in law], formally reciprocal recognition takes place as lived practice, and is therefore no ‘mere ideology’, but has a material existence. … ‘the law’s minimal guarantees of recognition’ allow at least for the personal characteristics of each subject to be taken into consideration. That this is not a matter of course can be seen in the struggles of the first and also the second wave of the women’s movement, which had to fight for this status for women in the first place. … [Law’s] enforcement nonetheless always depends on social struggles.
So, the rule of law is such that all persons are treated as free and equal, but some, at least at first, can use the principle of the rule of law to be recognized as identical with others–as free and equal as well.
Noonan, however, fails to distinguish between the use of law for purposes of achieving formal equality and the use of law for purposes that have little to do with achieving formal equality. Thus, as Buckel notes, on page 268:
The Hungarian Helsinki Committee in Budapest is even under political attack due to its
legal success. Their goal is not limited to victories in court, but aims to mobilise a social movement, making it possible to have a ‘success without victory’ – a political success without a legal victory.
Noonan, however, does not limit the use of the legal system as a part of the process of mobilising “a social movement.” He idealizes the rule of law as such. It is the rule of law which will equip workers with the necessary means to advance towards socialism, for Noonan.
Apart from using legal struggles for political purposes, can the left use the law for its own benefit? Yes–but within limits, and those limits are important–which Noonan ignores.
Legal relations, because they define people as equal and free formally, have material repercussions in that people behave in their daily lives as having such freedom and equality. However, such behaviour generally moves within the limits of formal freedom and equality, where all are free to pursue their own particular interests as persons–women as persons, men as persons, Afro-Canadians as persons, and so forth.
Noonan, by contrast, seems to believe that the rule of law in itself is a good; if only it could be freed from class bias.
Is the rule of law better than no rule of law? Yes and no. The rule of law can be a defensive mechanism for workers, citizens, immigrants and migrant workers: law does function, within limits, to postpone the direct use of force. Page 267:
The legal form’s most important effect is its deferral of power.
The weaker can on occasion, because of this deferral of power, make some gains that would otherwise require an organization of force. Page 268:
they [rights] therefore do indeed constitute ‘weapons’ in social conflicts – ones that are also available to the weaker positions.
[law represents] … In particular the double character of the legal form, of representing on at least a postponement of, if not even protection from immediate violence.
Without the rule of law, in a society dominated by economic, political and social structures linked to the class power of employers, violence would be direct and raw. Page 269:
A withering away of the legal form [legal relations–to be explained a little more in detail below] under capitalism would effectively lead to those processes. Neumann had described
National Socialism precisely as such a capitalist society under a state of exception,
and thus as one with neither legal nor political form.
So, workers would be well advised to defend the rule of law in the sense that it provides some protection to workers, citizens, immigrants and migrant workers by deferring state use of direct force (although we should not be naive in believing that there is little actual use of such force on a daily basis by the police). The state, if it is subject to the rule of law, cannot just do anything it wants because the legal form itself restricts the government’s actions, diverting it into a legal form that requires certain formal procedures and arguments. Pages 267-68:
When antagonisms can be processed through the social forms, they leave power relations intact, but simultaneously transcend their immediate potential for violence. They force confrontations into a formal procedure, which blocks or delays the immediate exercise of domination, such as the ‘law’ of the stronger. Those processes require argument and reason, and also predefine lines of argument in terms of their sequence and form. Furthermore, social mechanisms of protection are sedimented within them, such as the principle of legality in penal law, or that decisions can be challenged across several instances [apparently meaning that it is possible to appeal judicial decisions in criminal proceedings in various ways].
Noonan, however, nowhere shows that shoring up the rule of law can somehow advance moves towards a socialist society. Unions are, generally, defensive organizations, but most union reps in Canada have no intention of aiming for socialism. Furthermore, unions, although subject to many limitations, are more likely to be subject to pressures from their rank-and-file membership than is the legal system.
The Problem with the Rule of Law Is Not Only the Class Content of the Law (the What of the Rule of Law), but Its Form (the How of the Law)
Noonan sets up a strawman argument when he refers to the Soviet legal theoretician, Evgeny Pashukanis (who was eventually executed by Stalin in 1937):
He [Pashukanis] argued that law was by its nature capitalist and that it would eventually disappear once communism matured. There would be pragmatic regulations (like traffic conventions that enforce driving on the right or left side of the road) but no principles that claim the right to govern human affairs because they are abstractly rational and in everyone’s interests.
History was not kind to Pashukanis’ positive argument. Communism did not mature in the Soviet Union but rapidly degenerated into a totalitarian state. The abject failure to build a democratic socialist society has served liberal defences of the rule of law as the rule of abstract principles over private and partial interests well ever since.
Noonan fails to refer to Pashukanis’ argument that the problem with the rule of law is not just the difference between rhetoric and reality–the content of law–but also it form. Pashukanis criticized the very form of law as a process that hid its own nature from ordinary workers, etc. Other have developed this criticism of the legal form. Thus, as Buckel argues (page 127), Isaac Balbus has further developed Pashukanis’ criticism of the legal form by asking “which form human relations adopt when they present themselves as legal ones.”
Balbus considers the legal form to limit workers, etc. because it translated their real social relations into a form that strips them ideally of their hierarchical and power relations, making them appear to be equal. Page 128:
Thus qualitatively different subjects [such as workers and employers] become what they are not: equal. This relation of equivalence is made possible by the law. The legal form is thus an abstraction of the qualitatively different needs of subjects and their activities. … [Quoting Balbus] ‘The “blindness” of the legal form to substantive human interests and characteristics thus … functions to extinguish the memory of different interests and social origins.
Buckel then points out that the legal form leads to legal fetishism (the hiding of the source of law in specific human relations of domination and exploitation) and the treatment of the law as somehow independent of human relations, which then is used to control them).
She then quotes Balbus (pages 129-130):
The legal form is normally not called into question, I would argue, because the form itself ordinarily precludes the possibility of performing this critical operation. The calling into question of the legal order presupposes individuals who conceive themselves as subjects evaluating an object which they have created and over which they have control. It is just this presupposition, however, which is nullified by the perverse logic of the legal form; this form creates a fetishised relationship between individuals and the law in which individuals attribute subjectivity to the law and conceive themselves as its objects or creations.
Noonan shows little concern for the effect of the legal form on hiding the real relations–oppessive and exploitation–between human beings in a society characterized by the class power of employers.
Indeed, Noonan, by admitting that law frequently is biased, recognizes only the bias of the law in terms of content–the rhetoric of law versus its reality. His neglect of the form leads to his idealization the rule of law and, ultimately, treats law in a Godlike fashion, as if it were somehow some necessary aspect of all human societies. Page 130:
The reification of social conditions to forms is accordingly the main reason for the atomisation of those conditions, up to the point of making it impossible to recognise this very development. This is for example manifested in theories of the absolute autonomy of the law or in everyday notions that the law is essential for every kind of human society –beliefs which Balbus calls a ‘homage to the God-Law’. When society is understood as a result of law and not the other way around, law as the result of a specific kind of society, it is no longer problematised and the illusion is created that law has an actual life of its own: … Legal fetishism … [has] an inverted “topsy-turvy” existence under a capitalist mode of production in which humans are first reduced to abstractions, and then dominated by their own creations’. It is only possible to understand the forms by decoding them.
The legal form filters out or excludes from consideration relations of domination, oppression and exploitation and treats everybody, ideally, as “equal” (page 241):
In the marriage contract, for example, the hierarchical gender relationship is juridically transformed into one of equals. ‘Capitalist’ and ‘worker’ treat each other as equals in their legal practices, even if they remain unaware of this at the moment of their actions.
Noonan, in his cavalier dismissal of Pashunkanis’ criticism of the legal form (or, rather, his complete distortion of Pashukanis’ theory by omitting any discussion of it and referring only to its so-called failure in the former Soviet Union), fails to see that the rule of law in its very nature permits the class interests of the owners and controllers of capital to prevail (even if particular interests of employers may indeed be sacrificed on occasion).
One final point: the issue of withering away of law. Noonan, by idealizing the law, implies that law would always exist, even in a socialist society.
Buckel does not, however, argue against Evgeny Pashukanis’ thesis of the possible withering away of law in a socialist society. Page 269:
Compared to immediate relations of force, the legal form also has to be interpreted
as a social achievement as understood by Franz Neumann. Oskar Negt insists that ‘whenever merely formal justice is overcome, but this does not surpass and lead beyond its limited level of emancipation …’ this represents ‘a historic relapse’. This is also the issue raised in critiques of Pashukanis’ ‘withering away’ thesis, as it is seen to underestimate the proactive dimension of law. Regardless of other issues with the withering away thesis, this
critique, however, misses its mark. A withering away of the legal form under capitalism would effectively lead to those processes. Neumann had described National Socialism precisely as such a capitalist society under a state of exception, and thus as one with neither legal nor political form. This, however, must not lead to an eternal perpetuation of the legal form, including its ‘negative side’, for all future social formations.
Of course, workers, citizens, immigrants and migrant workers can, on occasion, use such a legal form to protect themselves against the power of the class of employers as a defensive manoeuvre and thus should be defended if attacked from the right. However, such a possibility should not be used to blind us to the definite limitations of law in terms of both its content and its form.
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.” His critique of law at best points to weaknesses in the content of law (the what of law–the reality of law versus its rhetoric). His critique does not extend to the very form of law (the how of law)–a form which hides the exploitation and oppression of workers and others. Such limitations of the law should not prevent socialists from defending the rule of law from attacks by the right since the law, can on occasion, be used to defend workers, citizens, immigrants and migrant workers. At the same time, this defensive possibility should not blind socialists to the very real oppressive nature of law because it paints over the real exploitative and oppressive conditions of billion of people worldwide. Noonan’s idealization of the rule of law does not serve working-class interests.
The Abolitionary 