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Law and State as Holes in Marxist Theory
Critique, 2006
and Engels' subsequent work. In particular, neither the national form of the capitalist state, nor its form as a Rechtsstaat, can be accounted for on the basis of the unfolding of the contradictions of the commodity without reference to the emergence of capitalism from the self-negation of feudalism. The resulting theoretical impasse may be relevant to Marx's failure to complete Capital, and led Engels in later work to project back the Hegelian transition from 'civil society' to the Rechtsstaat onto classical antiquity. Subsequent Marxist theorists of law have been led to one of two courses: either to cling to the transition from civil society to the state and in the process to abandon fundamentals of historical materialism, or to borrow from orthodox academic legal theory. Recent work by China Miéville and Didier Hanne provides examples of the uselessness of both procedures.
Sovereignty and Its Discontents: On the Primacy of Conflict and the Structure of the Political
Modern Law Review, 2005
Press, 2004, xxii þ 458pp, hb d60.00. In Frederick Pollock and the EnglishJuristicTradition, Neil Duxbury has written a lively and informative account of the most prominent English common lawyer of the late nineteenth and early twentieth centuries. The book begins with a thorough and entertaining account of Pollock's life and personal attributes. Essentially aVictorian in character and outlook, Pollock combined the virtues of moral integrity and hard work with aloofness, contempt of ignorance and a lack of charisma. Unlike his great friend Oliver Wendell Holmes, he was never a successful practitioner, and although he made a career as an academic lawyer, he was a poor teacher, using the academy as a stage from which to speak to a wider world, rather than to inspire undergraduates. If application rather than insight marked Pollock out, his career was long and wide reaching, and he enjoyed success as a treatise writer and university professor, as editor of the Law Reports, and as a publicist of the common law and its history. Although he was Corpus Professor of Jurisprudence in the University of Oxford, most of Pollock's work was practical rather than philosophical. As Duxbury points out, it was not that he was uninterested in philosophy, for his most impressive scholarly achievement was a study of Spinoza. But he regarded this interest as that of an amateur, which did not in£uence his approach to law. As a jurist, he was suspicious of grand theories and of attempts to reduce law to logical jurisprudential schemes, preferring the study of case law. For Pollock, the best test of the soundness of any legal proposition was whether it could be made intelligible to a jury. He therefore failed to have any discernible in£uence in jurisprudential thought. Instead of identifying fundamental jurisprudential problems and seeking to set out frameworks to understand them, he left only a scattering of re£ections on a range of more minor theoretical quandaries. Rather than setting out his own theory, he often attempted to bring together a range of di¡erent approaches, which only served to water them down. Since, in his view, philosophical analyses of law properly belonged to the theory of politics rather than to a dogmatic science of law, he was often content^even in his First Book of Jurispru-dence^to leave larger jurisprudential questions to one side. Pollock is shown to have been at heart a common lawyer, whose approach was perhaps most shaped by the examples of Sir Edward Coke and Edmund Burke. Law in his view was not the command of a sovereign: it consisted of the rules enforced and expanded by judges, who were portrayed as men of character possessed of 'a certain continuous drift of thought which is called the legal habit of mind' (p 126). Duxbury convincingly argues that Pollock's stress on good habits was as much the concern of a Victorian keen on good breeding and education as
Weber and Marx on law: Demystifying ideology and law ? Toward an emancipatory political practice
Contemporary Crises, 1983
In the last few years, scholars once again have looked at the relationship of law to social economic developments. Weber and Marx stand out as the most discussed key spokesmen in this recent literature. Neither of their writings, however, have been analyzed critically and exhaustivelyto the detriment of precision in recent thinking on the development of law under capitalism. This essay will first explore three problematics: the relationship between law and domination, the relationship between law and political structure, and the relationship between law and the economic system. It will then address, in part two, the question of repressive formalism [ 1 ] at both the formal level (lawmaking), as well as the substantive level-law in practice (lawfinding). There I will argue the potentially greater merits of Marxian analysis over Weberian analysis in uncovering the more subtle forms of repressive formalism in praxis, and so, too, the necessary direction for emancipatory political practice in lawfinding. Little has been written on a Weberian analysis of law and development. With few exceptions [2], Weber's analysis, notably in some two hundred and fifty pages in volume two of Economy and Society [3], has been little argued in academic circles. This essay will highlight key points in his analysis. | will then juxtapose the Marxian perspective, in its many forms, on Weber's analysis. At the outset, Weber's definition of law has it that ". .. an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity to avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose" [4]. He goes on to identify several forms of legal thought. It must be pointed out that these are "ideal-types" or, more accurately, methodological devices serving heuristic purposes that permit analysis of legal systems of concrete societies. Briefly, the structure of legal thought can be placed along two dimensions-rationality/irrationality and formal/
Locke and the Dictatorship of the Bourgeoisie
Political Studies, 1965
i e k IT is a commonplace. but true, that the two terms on which Locke mts the greatest weight of doctrine in the Second Zkeutise arc 'coment' and 'property'. It is with the second of thesc terms that we are here concaned, and in partiwith the use which Locke makm of his doctrine that : 'The great and &fend therefore, of Mem uuitiq into Commonwealths, and putting themselves under Government, is the Preservution of their Property.'* There has been a good deal of criticism kvelled at W e ' s account of property from one direction or another. Complaints of wild and absurd individualism3 contrast with aswrtions of his collectivist leanings.4 complaints about his obsession with history that never happened5 contrast with assertions of his intense interest in, and the great importance to his theory of, sociology, history and anthropology,e in as genuine a form as the seventeenth century knew them. Here we shall concentrate on a Merent issue, namely on the extent to which it is true that Locke's account of property, and his resultant account of natural rights, political obligation, and the proper functions of government, form an ideology for a rising Capitalist class. My question is How far does what Locke says in the Second Treatise substantiate Macpherson's' thesis that he was providing-perhaps no more than half-conscious1y-a moral basis for the dictatorship of the bourgeoisie? One initial clarification of the scope of my discussion of this question is needed. Macpherson 1 I should like to say how much I owe to the late G. A. Paul in this paper; it amounts to a good deal as to doctrine, and all but everything as to method. a See 124, cf. 134. (all refs. to Lasktt edition). a Vaughan: S t d s in the History of Politid P h i h p h y. Kcndall : John M e and Mujority Ruk?.
2013
so that Cohen in particular appears to be "the one genuine exception to the general tendency of most legal realists" 3. Like all realists, he was very much concerned with justice but unlike most of realists, he was much more interested in the ends of law rather than in its means. This is why he was reluctant to focus on legal indeterminacy. T.T. Arvind's paper shows that the same could be said of Lundstedt whose theory is in contrast with many contemporary sceptical or critical theories. Lundstedt starts out with rejecting the traditional distinction between "interpretation" and "legislation" and recognizes that interpretation by judges in "hard" cases is actually better grasped as a form of legislation. Yet, Arvind explains, "unlike modernday sceptical theorists, Lundstedt did not thereby imply that the adjudicative process is characterised by complete subjectivity, or an absence of groundedness." This brings Arvind to conclude that "by linking parliamentary and judicial legislation, Lundstedt sought to make the point that both judicial and parliamentary legislation are grounded in the same thingnamely, conceptions as to its social usefulness and social functionsbecause legislation in its very nature is concerned with being, in some way, useful to society or with fulfilling definite social purposes and functions." From this point of view, the analysis of New Realism that Cross puts forward is very stimulating as he uses empirical research on judicial decision-making and its implications for legal realism concerning statutory interpretation. Much like the views of classical realists, "the research shows that attitudinalism and a degree of strategic behaviour characterizes judicial decisions." But unlike the classical views, it also shows that "these extra-legal effects are not all powerful. Instead, it appears that traditional legal concerns are also quite important to judges." Of course, such "formalistic" decisionmaking does not mean that judges are "bound" by the law as much as it shows the preference for a specific rhetoric surrounding decision-making. We should always recall that, as Rumble emphasized, "the objective of the legal realists was not simply to describe and explain judicial behaviour as accurately as possible; rather, it was also to prescribe reforms for this behaviour. In other words, there is a positive, even idealistic, side to their teachings. Unfortunately, it is a side which has far too often been obscured by the militancy of their negations of traditional theories. Nonetheless, they did not wish solely to destroy; they also wished to build." 4 2
A Prequel to Law and Revolution: A Long Lost Manuscript of Harold J. Berman Comes to Light
Journal of Law and Religion, 2014
The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. In the early 1960s, Berman wrote a short book, Law and Language, which was only recently discovered and published in 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the intense legal positivist era during which he was writing. This Article contextualizes Berman's Law and Language within the development of his own legal thought and in the evolution of interdisciplinary legal studies. It focuses particularly on the themes of law and religion, law and history, and law and communication that dominated Berman's writing until his death in 2007.