Popular Justice and the Rule of Law

[LeoCasey@xxxxxxx]

In his discussion of law in _State, Power, Socialism_, Nicos
Poulantzas provides a fascinating engagement with and critique of
the Foucaultian notion of law (and, because the two are so
dependent upon each other, an implicit critique of the
Foucaultian notion of  popular justice'.) Poulantzas argues that
Foucault has a too narrow conception of the law and the state,
one which denies/ignores the role of law and the state in the
organization of modern power. Foucault sees modern power in the
form of normalizing disciplines, such as education, medicine, and
psychiatry, which "rest not on right but on technique, not on law
but on normalization, not on punishment but control." (Foucault,
_The History of Sexuality_. p. 89.) Within the Foucaultian
paradigm, law and the state belong to an older, repressive and
negative form of power; the normalizing disciplines belong to a
newer, productive and positive form of power. Although Foucault's
particular formulation here has its own vocabulary and logic, it
takes the general form of a common progression: modern power
develops out of a system of coercion and authority into a system
of manipulation and persuasion -- the same internalization of
repression view which is so prominent in elements of the
Frankfurt school (Marcuse's _One Dimensional Man_.) Poulantzas
rejects this dichotomous separation of coercion and consent, of
law and ideology, of force and reason, and sees the law and state
as central to the organization of power. While he credits
Foucault for developing an analysis of the normalizing and
productive (disciplinary) techniques of power, he repudiates the
separation of disciplinary power and violence, and insists upon
the central role of the state and the law in organizing
disciplinary power.

Poulantzas understands the state in the Marxian and Weberian
traditions as the association which holds a monopoly on the
legitimate use of force; violence is inscribed, therefore, in the
law of the state. The private wars and feuds of the pre-modern
era, the private law and  justice' of feudalism, could only be
replaced by a state and system of law which monopolized, in a
public and rationalized form, the means of force and violence.
"State monopolized physical violence permanently underlies the
techniques of power and mechanisms of consent," Poulantzas
contends. "It is inscribed in the web of disciplinary and
ideological devices; and even when not directly exercised, it
shapes the materiality of the social body upon which domination
is brought to bear." (p. 81)

Since Foucault sees the law and the state in terms of the older,
repressive and negative form of power, he can not grasp the
productive and positive moment of legal and state power. He fails
to understand that modern law itself is a disciplinary,
normalizing system, "an axiomatic system, comprising abstract,
general, formal and strictly regulated norms." (p. 86) In one
grand irony, Foucault, the non-Marxist, sees the state and law in
the most narrowly instrumentalist terms, as the repressive tool
of the ruling class, while Poulantzas, the Marxist (albeit highly
unorthodox Marxist), sees the state and law in much more complex
terms, as the primary site on which and through which power
struggles are waged. For Poulantzas, the "law _institutes_
individuals as juridico-political subjects-persons by
representing their unity in the people-nation." (p. 87) Put more
simply (and slightly more crudely), the law, like other
normalizing techniques of power, individualizes and unifies the
modern subject; it is an expression and a medium of certain
relations of power. This is a complex theoretical argument (and
there are many facets of it I have not reproduced here), but at
its bottom is a vital and clear political difference. For
Foucault, individual rights and the rule of law in which they are
inscribed are ultimately meaningless facades; just as in the
hands of the vulgar Marxist, they are ultimately nothing more
than expressions of ruling class power ( bourgeois rights'). For
Poulantzas, their nature is much more complex: "(f)aced with
working class struggle on the political plane, law organizes the
structure of compromise equilibrium permanently imposed on the
dominated classes by the dominant. It also regulates the forms in
which repression is exercised: indeed, we need to stress the fact
that this juridical system, these  formal' and  abstract'
liberties are also conquests of the popular masses. In this sense
and this alone does modern law set the limits of the exercise of
power and of intervention by the state apparatuses. It is very
clear from its abolition in the exceptional form of the
capitalist state (fascism, military dictatorship), that this role
of the law depends upon on the class relationship of forces and
provides the outline of the barrier to ruling class power imposed
by the dominated classes." (pp. 91-92.)

I insist -- with Poulantzas and against Foucault -- that
individual rights and the rule of law are the conquest of the
popular masses. In American history, for example, the First
Amendment freedoms of speech, assembly, petition, press and
association which are the sine qua non of political organizing
are the products of the struggles of abolitionists, feminists,
trade unionists, working class radicals (from socialists and
communists to anarchists) and civil rights workers. Poulantzas is
entirely correct to note that these are not permanent conquests,
etched indelibly in some constitutional parchment which can not
be destroyed, but dependent upon the power and organization of
the popular masses; it was not until those movements fought and
won their struggles that this section of the Constitution
acquired its current meaning and force. The Soviet Constitution
of 1936 had the widest formal protections of individual rights of
any in the world, but the relative powerlessness of the popular
masses under Stalinism left it a  dead letter': violations of
 socialist legality' were symptomatic, not causative, of what had
gone wrong in the USSR. In this sense, the adherence to the  rule
of law' or individual rights at a particular moment in history is
no guarantee of any future.

Attacks on the  rule of law' and individual rights are, I
contend, attacks on the democratic institutions and power of the
popular masses. This is true not only of the political theory of
the Nazi collaborator Carl Schmitt, who argued most forcefully
that the  exceptional' state was the norm and that the sovereign
was he "who decides on the exception," but also of that version
of Marxism which adopts the interpretation of the  dictatorship
of the proletariat' in which it need not be bound by a  rule of
law' or by individual rights. (This argument has been made in the
recent  dictatorship of the proletariat' thread.) The freedom and
power of the popular masses is maximized, I submit, to the extent
that the  rule of law' and individual rights are functioning
restraints on the power of the state.

Popular justice is not, I maintain, a substitute for the  rule of
law' and individual rights, either in the United States and other
Western states, or in Peru and other  Third World' nations. The
events which surround the Rodney King trial and riots make this
point as well as any illustration I know. As I mentioned in my
posting on capital punishment, the American state, and especially
its criminal justice system, assumes what is close to an
 exceptional form' vis-a-vis the African-American community. The
hugely disproportionate numbers of young African-American males
caught in some way within that system, as well as the commonplace
brutality it employs in  inner city' neighborhoods, is reflective
of this reality. The Rodney King tape did not record an
extraordinary event, especially not in a Los Angeles patrolled by
a police department of the proto-fascist Gates; rather, it
captured an all too ordinary story. It was not the tape, but the
verdict in the first trial, which invoked the expressions of
anger and rage; the tape confirmed what every person of color in
Los Angeles already knew, while the verdict said that white cops
caught red-handed in violations of individual rights and the
 rule of law' would do so with impunity when African-Americans
were the victims.

What was the content of the  popular justice' that some found in
the riots? That white Americans, too, could be the victims of
arbitrary and senseless violence, simply because of being in the
wrong place at the wrong time with the wrong skin color? (Popular
justice as equal opportunity lynching -- now this is a conception
of justice with real mass appeal.) That some African-Americans
and Latino/as could loot and burn their own communities so
thoroughly that life within them would be even more desperate and
hopeless than before? At best, this was a momentary emotional
catharsis; at worst, it was a self-destructive and/or
opportunistic venting of an understandable rage. It certainly is
no substitute, I submit, for the establishment of a meaningful
 rule of law' and individual rights in the  inner city'.



     --- from list marxism@xxxxxxxxxxxxxxxxxxxxxxxxxx ---

     ------------------