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JURISPRUDENCE AND CRITICAL LEGAL THEORY

THE POLITICS OF LAW: A PROGRESSIVE CRITIQUEedited by David Kairys

New York: Pantheon Books, 1982 321 4- x pp

paperback: ISBN 0-3914-51981-7 — $16.95 hardback: ISBN 0-394-71110-6 — $64.00

THE LEFT AND RIGHTS: A CONCEPTUAL ANALYSIS OF THE IDEA OF SOCIALIST RIGHTS

by Tom CampbellLondon: Routledge and Kegan Paul, 1983

253 + pp, $14.50 ISBN 0-7100-9085-4

‘‘Professed Socialists are also a very mixed lot, and if joining them meant inviting them indiscriminately to tea I should strongly advise you not to do it, as they are just like other people, which means that some of them steal spoons when they get the chance” (Shaw 1982:122).

IIntroduction

These books are important attempts by an assortment of radical scholars to address many of the questions that have for some considerable time dogged what might be termed traditional legal theory. This terrain has in the past been given scant attention by progressives and it might be worth exploring some of the reasons why this has been the case as a prelude to assessing the overall value of these particular contributions. Historically, one undoubted factor has been the economistic tendencies of much Marxist and Marxist-influenced scholarship. This has led to the primary focus of analytical attention being directed to the economic infrastructure

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of social orders while their “superstructural” elements — law, to be sure, included — have been glossed over precisely because of their perceived derivative nature. A theoretical position which assumes that the legal can be “read off” from the economic is necessarily driven to devalue attempts to come to terms with the various specific configurations of law and legal theory. This, in turn, has induced abstention from debates within jurisprudence proper almost on the presumption that they are at best peripheral (and at worst irrelevant) to the objectives and concerns of radical analysis.

This weakness, for a weakness it undoubtedly is, does not however give the full picture. A second central factor has been the traditional dominance exercised over legal scholarship in the Anglophonic world by the practising profession. This has meant that legal academics, even if having no substantive experience of practice themselves, have nevertheless been dancing to the profession’s tune. Where attempts have been made to transcend the practice-oriented writing of case notes, treatises and exegetical commentary, this has almost invariably been limited to the explication of doctrinal problems and the establishment of a theoretical self­awareness and justification of current practices. Such research has most commonly manifested itself in exploring the nature of judicial practice and the various meanings of terms like law, legality, justice; again, with the functional requirements of professional competence never far from mind.

The last couple of decades has witnessed a structural shift. The expansion of law faculties in the sixties and seventies created openings for scholars who had no institutional or professional ties with, or general allegiance to, the legal profession. At a more fundamental level, the emergence of the corporate welfare state has led to a breakdown of the barriers which traditionally separated law from politics on the one hand and administration on the other. This in turn has brought law under the microscopes of sociologists, political theorists and philosophers. This concatenation of circumstances has fuelled a critical jurisprudence of which these texts are in no small measure representative.

IIThe Politics of Law: Introduction

The Politics of Law edited by David Kairys is a collection of essays (some being no more than notes) from a radical perspective on American legal theory and practice. The book bears witness to the vibrant Conference for Critical Legal Studies in the US and this collection is very much a Critical Legal Studies reader. The essays themselves are divided into three groups. The first deals with legal theory, in particular those decisive “philosophies” that have underpinned the study of law since the early Republic. The second focusses on substantive fields of law and finally, iconoclasm completed, a range of “alternative progressive approaches” are advanced. As the blurb emphasises, the overall strategy of The Politics of Law is to “lay[ ] bare the conflicts and power struggles that form the bones and sinew of the august body of American law”. Consequently much attention is directed at the legitimating and obfuscatory function of liberal legalism. Perhaps the most remarkable thing about the emergence of the Conference for Critical Legal Studies is that at a time when American institutions generally have been moving to the right, it has represented a sharp lurch to the left in what has, traditionally, been a

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conspicuously conservative domain, the law school. The measure of this lurch can be seen by examining the various theories contained in this generally representative collection.

Critical Legal Theory: The ParticularsThe Politics of Law begins by attempting to identify the philosophical

interconnectedness of legal reasoning, traditional jurisprudence and legal education. The most ambitious and perceptive essay here by Elizabeth Mensch entitled “The History of Mainstream Legal Thought” is a critique of the major paradigms of American legal theory over the last 200 years. In historical sequence they are: pre- classical legal consciousness which cast lawyers in the role of “trustees” for the interests of the whole community” (p 19). This gave way to a “classical consciousness” characterised by a rationalisation of the common law into

a few general and powerful — but clearly positivised — conceptual categories (like property and free contract), which had been incorporated into the Constitution as protected rights ... Furthermore, as integrated into the constitutional law structure, the rationalisation of private law meant that the boundary between the realm of private autonomy and the realm of public power could be objectively determined by reference to specific common law doctrine (pp 24-25).

Importantly, Mensch refuses to conclude that this is evidence merely of a judiciary imposing its economic priorities on the nineteenth century legal structure, a conclusion she rightly characterises as trivialising the classical conceptual scheme, since “courts during the classical period ... by no means overruled all legislation designed to regulate corporate power” (p 26). Rather, the significance of the scheme lay in the claim that the boundary between public power and private rights could be objectively found. In this sense her analysis strikes a chord common to almost all those who call themselves critical legal theorists: namely, a rejection of instrumentalism, that is, the thesis that sees law purely and simply as the tool of a manipulative ruling class. The extent to which the essays in this volume succeed in this respect will be considered in more detail below.

A full-scale attack on the objectivist credentials of “classical consciousness” was the distinctive feature of the next phase, legal realism. The realists emphasised the indeterminacy of rules and in so doing undermined the central tenet of liberal legalism that insists on the incommensurability of legislation (subjective act of will) and adjudication (objective exercise of reason). All the subsequent forms of theorising, Mensch adds, have been attempts to put the Humpty Dumpty of liberal legalism back together again. This essay is an excellent piece of historical analysis and can only be faulted for its somewhat dismissive and overly brief treatment of Rawls and Dworkin whose influence has been considerably greater than Mensch is prepared to admit. This blemish is more grossly present in a number of other articles and is one of the major weaknesses of this collection. For instance, Peter Gabel and Jay Feinman heroically attempt to cover three centuries of contract in twelve pages, while Mark Tushnet takes on the colossal subject of corporations and free speech in ten. Perhaps most striking of all though is Edward Grier’s effort at distilling the essence of Gramsci’s theory in six pages, in particular since a number of

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contributors do make explicit reference to Gramsci in other parts of the volume. These shorter essays will, with difficulty, persuade those of the liberal legalist cast of mind. The exciting developments in legal scholarship which these essays draw from are occluded rather than exemplified by the brevity and the consequent superficiality of these pieces. This criticism is hardly answered by the pragmatic claim that a broad exposure to the diverse range of critical legal studies is an important political exercise. No doubt, but there is questionable value where the result becomes something akin to a peep-show.

In the criminal law section the first contribution by Mark Kelman presents a summary of “mainstream” and “left” criminology. Mainstream criminology, he maintains, comes in the following broad categories: the economic (social agent as cost-benefit analyser), the bad-man (the “criminal” as a victim of inherited characteristics) and the wicked-choice (the agent as wilfully evil). These he then subjects to radical critique. The ensuing critique, however, rarely gets beyond ridicule. Thus, in his attack on bad-man theories he refers to “obviously crazy searches to identify born offenders” (p 219), and as for the economic theory he claims that “Professor Richard Posner’s supposition that premeditated murder is punished more severely than unpremeditated murder because one is more likely to get away with it, and thus the expected punishment would be lower unless the nominal punishment is set higher, is as implausible a hypothesis as one can imagine” (id). Ridiculous such a conclusion might be, but progressives, if they are to displace mainstream criminology must comprehensively refute the arguments of the likes of Posner, now a federal judge, whose theories are becoming increasingly influential, in part, because they have been insufficiently confronted in the past. Responses like Kelman’s only serve to alienate those who might be open to persuasion. Indeed, the level of critique here is especially disappointing given the effectiveness of his assault on this position in an earlier article (Kelman 1979).

Kelman’s review of radical criminology is much more searching. One cannot but agree with his identification of the major flaw in the critical approaches of the last two decades: the tendency to romanticise “deviants”, to see them as in some way expressing an inchoate insurrection against the injustices of the status quo. This approach, as Kelman rightly adds, ignores the obvious fact that it is most commonly the victims of that status quo who, in turn, become the victims of this insurrection, particularly in the case of street crime, property offences and violence. He continues:

[f]or critical theorists to minimise the centrality of the experience of terror and victimisation — a far more overt feeling of impotence than most people feel in any other social setting, including hierarchical and dominating work relations — seems both politically inept and counterfactual (p 223).

It is precisely the abstentionist politics of such a position that has allowed the Right’s “Law and Order” campaign to gain increasing popular credibility over the last few years.

The importance of this point is strengthened by a proposal that radical research should be directed to the specific features of marginalised groups, and the particular social and historical contexts within which the process of marginalisation takes

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place. The advantage here is that it breaks with the unilinear, simplistic thesis that crime is caused by capitalism, and that therefore by implication, the solution to the problem of crime is the dismantling of this economic form. What follows from his position is a different political strategy whereby progressive politics are addressed to concrete areas of reform as an interim step toward a socialist crime policy. Unfortunately, Kelman, as so many others in the book, does not venture into this area. It is a weakness with the collection as a whole, a point which will be discussed in more detail later.

Having rightly criticised the “romanticist” approach to crime, however, he proceeds to distance himself from right-wing attacks on criminality by suggesting (implausibly) that “the world is not unambiguously worse for their [criminals’] presence” (pp 226-7), and that “the benign aspects of the welfare state are, in significant part, responsive to fears of violence and takings ”(/<i). It is difficult to see in the history of the welfare state any significant development resulting from the incidence of intra-working class crime. Indeed, borrowing Richard Abel’s point that we do not subject those we love to danger and compensate them later, but rather take preventive action (p 198), even if welfare state advances could be attributed to the victimisation of the poorer sections of society, it would be hard to see it being any more benign than traditional prevention and deterrence crime-control techniques.

William Chambliss’ contribution, “Toward a Radical Criminology”, begins with a useful general history of the emergence in the US of radical criminology and it is hard to disagree with his central point that it is the questions we ask that determine the value of the answers we come up with, in criminology as elsewhere. Our research, therefore, he suggests, should focus on the contradictions inherent in the state rather than trying to explain why particular individuals commit crimes. One reason given for the unimportance of the latter activity is the foolhardiness of trying to defend radical criminology from its critics’ charge that it fails to offer any adequate explanations of crime. Chambliss adds that “[j]udged by the standard of producing valid generalisations that meet even minimal scientific requirements, all social science is a failure” (p 236). This proposition would appear to introduce an unfortunate relativism into criminological theory. After all, if no theories are scientifically adequate, how can we, or why should we, rationally choose one in preference to another? Chambliss here seems to be confusing the minimum requirements for an adequate social science with those necessary for natural science. If radical theories do not square better with the former than their liberal or reactionary counterparts then radicals will be hard put to argue against a criminological pluralism since all are equally rational or irrational. Surely, it is the explanatory adequacy of any theory that is the test of its strength. Radical criminology, therefore, must establish its legitimacy in this respect.

Chambliss’ specific proposals are directed at focussing away from individuals and looking at the contradictory nature of the state. As a general watchword against the functionalism of much radical theory this is fine, but it is left undeveloped. He adds that “[w]e cannot reasonably assume that there is a discoverable difference between those who commit crime and those who do not” (p 236). This, however, amounts to dodging the difficult questions concerning what to do about various forms of harmful social behaviour that occur now. If the contradictions of the state are to

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be the overriding concern of radical criminology, then all political praxis must be directed to them. As Kelman and Rudovsky later affirm, this implicitly involves political abstentionism in respect of, for example, violent street crime. A politically effective left strategy on crime, therefore, must develop a more sophisticated typology of preventable social harm. In particular, this might lead to examining the issue of what an effective progressive policing policy might be. Socialists cannot afford to duck these difficult questions without being condemned to irrelevancy.

This is, perhaps, the most glaring weakness of the book. Consistently, the savage indictments of the status quo are followed, if at all, by the loosest and vaguest proposals for change. Thus Rudovsky’s suggestion that the police do have a legitimate role to play in enforcing society’s “equitable” norms (p 245) is given no supplementary specification. In Diane Polan’s essay, “Toward a Theory of Law and Patriarchy”, it is suggested that since the whole structure of law is steeped in patriarchal values and priorities, any arguments cast in legal terms, even terms of equality, implicitly legitimate that oppressive structure. The question the reader is then faced with is: “what’s the alternative?”. Struggles by feminists over equal pay, anti-discrimination, child-care and so on seem, on this analysis, to have achieved nothing beyond buttressing male domination. As one reviewer has pointedly remarked, this position implies that “[t]he only assurance a political actress can have is that she will be doing the wrong thing whatever she does” (Levinson 1983:1476).

One of the most stimulating pieces in the book is by Morton Horwitz on causation. As any student of tort or crime will know, the range of conflicting metaphors judicially employed to identify a particular sequence of events as causally linked would do credit to Shakespeare. Horwitz traces the philosophical roots of the controversy in the latter part of the nineteenth century. Causation has, from the time of Hume, always been a problem for empiricists. Limited to empirically observable events, the scientist cannot see causes, only constant conjunctions of events. This position, as Horwitz points out, was refined by John Stuart Mill and then applied to legal doctrine by the treatise writer Nicholas St John Green. Mill, in true empiricist style, suggested that one cannot separate one set of events as causally relevant and then categorise the rest as superfluous: events do not arrange themselves so neatly. This argument led directly to determinism. This, combined with a positivist view of social science (namely, that the techniques of natural science are essential for adequate explanation of the social world), and a push to transform law into a science, led inevitably to the impossibility of identifying individual legal responsibility. At the time, tort law was cast overwhelmingly in the individual responsibility/fault mode and it was hardly surprising that Mill’s theories provoked prodigious, collective resistance. By way of example, Horwitz cites one treatise writer Francis Wharton’s horrified discovery of “the practical communism which this theory of the causal character of all antecedents promotes” (p 205).

The response might seem somewhat exaggerated. Despite Mill’s ambivalent attitude to socialism, he can hardly be seen as having been a harbinger of proletarian emancipation. But his theories do radically undermine the notion that it is possible to separate analytically “proximate” from “remote” causes of harm. Implicitly, therefore, the obvious direction for tort law was one of collective responsibility for harm. This was totally at odds with laissez-faire, as Wharton insisted. The

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important lessons which Horwitz draws from the episode is how the legal principle of objective causation effectively operated to subvert any redistributive functions that tort law might be seen to have. In so doing nineteenth century tort preserved its purely private law character: its individualism was premised on the protection of what was considered to be parties’ pre-existing rights rather than on a more general public policy. It is unfortunate that this contribution is so short. It raises a number of crucially important issues, in particular the continued breakdown of the boundary between public and private law and the scientisation of judicial technique in the nineteenth century. Of course one cannot blame Horwitz for narrowing his focus to one aspect of the doctrinal and philosophical debate, but this again must raise the question of the wisdom of the overall plan behind the collection which required the jamming of so many small sardines into what is after all a fairly sizeable tin.

This criticism, however, should not obscure the fact that there are some excellent pieces here notwithstanding restraints of space. Richard Abel’s section on torts combines a density of analysis with a number of valuable suggestions for a progressive reform of civil liability. Tort law is seen to express all the significant values which capitalism enshrines: commodification of every aspect of life; differential standards of protection for different classes of victims; and systematic encouragement of unsafety due to the pursuit of profit in a competitive market. In other words tort proclaims that “you are what you own, what you earn and what you do” (p 195). Unlike Kelman, above, Abel addresses seriously the economic approach to tort and while emphasising that a truly socialist approach to tort would involve massive relocation of risk (eg rotation of work) as well as ownership (eg worker control), proposes a progressive interim strategy. Importantly, he avoids the pitfalls faced by some left-inspired reforms which concede too much to the system they are trying to transform, such as recent suggestions in New South Wales on the proposed no-fault compensation scheme which urge retention of the regime of common law rights almost on the basis of a socialist utilitarianism (the greatest happiness of the greatest number of workers), happiness being computed in purely financial terms (see Tubbs 1983). As Abel urges, support for comprehensive no-fault compensation schemes “is the right choice on grounds of both equity and political tactics. The paramount criterion for a just compensation scheme should be equality ... [T]hose who suffer from tort, unavoidable accident, illness, and congenital disability should be treated alike. Inequalities of wealth and income should not be reproduced in the level of compensation, for this would maintain those inequalities materially and reaffirm them symbolically” (p 198).

Crucially, Abel is here linking a contemporary political strategy to the values that would underpin a future socialist legality. In this respect his article is one of the exceptions in this collection, since the role of law in a socialist society is a topic dodged by most contributors. Yet, as Perry Anderson has urged in a recent collection of lectures, socialist ideas can only become the common sense of the age if people are given some concrete outline of what rights and obligations would pertain in a socialist system:

No working class or popular bloc in a Western Society will ever make a leapin the dark, at this point in history, let alone into the grey on grey of an

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Eastern society of the type that exists today. A socialism that remainsincognito will never be embraced by it (Anderson 1983:99).

Socialists, generally, have found it rather easy to propose outlines of restructured patterns of production, but civil liberties have caused real problems: problems, it should be added, that this volume does little to resolve. David Kairys, for instance, in his essay on freedom of speech, does not deal with the question of what limits (if any) might be placed on free speech in a socialist society. The dismal performance of contemporary “socialist” societies in this respect underscores the urgency of this topic. Without a third option explicitly spelt out, liberals are, unsurprisingly, inclined to opt for the limited freedoms they now enjoy.

This issue is fitfully addressed by Mark Tushnet in his essay, “Corporations and Free Speech” (pp 253-261). One of the more astounding events in the history of corporation law in the US is the ease with which corporations were allowed by the Supreme Court to avail themselves of the Fourteenth Amendment protections: that is, during oral argument before the Court in the 1886 case of Santa Clara County v Southern Pacific Railroad1 where justices interrupted one attorney with the curt conclusion that corporations were persons. This, conjoined with the notion of the free market of ideas, leads Tushnet to conclude: “[i]f free speech was defended with the metaphor of the market, it was only a matter of time and political circumstance before the market was defended with the metaphor and the substance of free speech” (p 258). This point is very important, and it goes some way to explaining the Supreme Court’s reasoning in the later political campaign expenditure case of Buckley v Valeo2. Again, lamentably, we are none the wiser about how corporate speech might be regulated, and, importantly which corporate forms. As Tushnet recognises, there is a world of difference between a college newspaper organised in corporate form from a multinational oil corporation, yet the hard question about where the line should be drawn is conpicupusly unaddressed.

Karl Klare in his contribution on labour law attempts to answer some of those hard questions, in particular by resisting the all-too-common Marxist functionalism which tends to classify every change within capitalist societies as yet another manifestation of the inexorable logic of capital. Thus, he emphasises how labour law in many respects represents an advance in working class conditions but that, nonetheless, “the forms of industrial due process become a substitute for democratic self-governance” (p 79), and, more generally, that collective bargaining is not purely and simply a question of domination but more broadly involves consideration of workers’ rights and democratic participation in the workplace. The important point underpinning this argument is that the democratisation of industry is essentially a two-fold process of exploiting the contradictions within existing institutions while simultaneously developing forms of political organisation which prefigure a socialist polity. The dismissal of the former as inherently statist and therefore reactionary manifests a simplistic characterisation of the state as well as an “overly sanguine faith in the capacity of unalloyed popular action to restructure and democratise the whole of social life” (p 84).

There is, however, an ambivalence in Klare’s attitude to law. While he maintains that to see “the workplace as a locus of democratic self-governance may suggest general terms in which to conceive law-making and institution-building as experiences

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of human self-development and self-realisation”, thus, presumably, recognising the centrality of law in a socialist society, he nonetheless elsewhere slips back into a simplistic chiliasm: law and the state, so his forecast goes, will ultimately wither away (p 83). This is at odds with his (and others’) rejection of instrumentalist theories of the state and is indicative of a recurrent and pervasive tension throughout the book. This tension derives from the critical legal scholars’ undue reliance on the Realists whose enduring legacy (particularly in the US) has been to emphasise the indeterminacy of legal rules. Judges, as the Realists see them, are not restrained to come to a definite result in any case which comes before them. On the contrary, the doctrine of precedent is so sieve-like that any judge reluctant to come to a particular conclusion can invariably find a hole to wriggle out of. Most of the articles adopt either implicitly or explicitly various shades of this view. To this major realist premise, the critical legal scholars add a few minor ones to the effect that judges customarily want to reach particular results which accord with their political and social philosophies; that they use the apparent objectivity of the method to confound the would-be cynical and suspicious; and that their sympathies lie with those interests supportive of advanced capitalism and patriarchy.

As well as sitting uneasily with a general critique of instrumentalism, this approach equally appears to contradict the notion of the materiality of legal doctrines. After all, Duncan Kennedy’s suggestion that legal education is a form of preparation for the hierarchies which exist outside the law school, a form of preparation which allows law students to internalise and accept the rationality which underpins those hierarchies, contradicts the idea that judges are not constrained by them. In other words the ideology of legalism has some material effect or it does not. If effective, then it must operate to impose some restraints on judicial decision-making and this, in turn, means that judges are not merely consciously engaged in some peculiar political conspiracy. Rather, the law, though flexible, does not give judges a carte blanche to do what they will. It follows that Kennedy’s claim that law schools teach “nonsense” (p 47) is a hopelessly inadequate analysis. It is precisely because legal doctrines do make some sort of sense of, and thereby legitimate aspects of the legal process that they have the purchase they do. This volume would have been the richer if this had been more explicitly and pervasively acknowledged. It could have underpinned the notional content of law in a more democratic and egalitarian society with a developed concept of the form of law, namely, the sorts of legal institutions which would genuinely embody socialist values. This much is alluded to in the most general terms in the later essays on alternative approaches but with insufficient force to override earlier inconsistencies.

Further, there is negligible effort directed to the critical analysis of contemporary jurisprudential theory notwithstanding the obviously profound influence it has on all forms of legal discourse. Where criticism is developed it is cast in the most general terms at “liberal legalism”. Insofar as this implicitly identifies a unifying philosophical core this approach has clear advantages but a reluctance to grapple with the often contradictory elements of mainstream legal theory is very much to ignore the book’s introductory promise to “expose the august bones and sinew of American Law”. This text can, perhaps, be seen as a prolegomenon to that project.

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IIIThe Left and Rights: The Issues

The parameters of the debate addressed by Tom Campbell in his preface to The Left and Rights are essentially threefold: first the dogmatism of linguistic philosophy; second “some common prejudices against the concept of socialist rights”; third, the constructive project of establishing a shared conceptual base for “fruitful dialogue between theorists of the political Left and Right”. The text as a whole can therefore been seen as an attempt at intellectual detente. A central theme of the book is a rejection of the assertions of “dogmatic linguistic philosophers” who, for Campbell have arrogated to themselves an absolute, “correct” definition of rights at the expense of all others. Campbell’s strategy, however, is not to attack the dogma of linguistic philosophy itself (which he is generally rather vague about) but, rather, to examine a number of competing definitions and opt for one which in form and content approximates to the character that rights would assume in a socialist society. This section of his book will be examined in more detail below.

Campbell’s argument takes on two other adversaries as well, namely, the “revolutionary socialist” and the “right-wing” liberal theorists. The latter are characterised by their rejection of all legal rights informed by the principles of need and redistribution on the ground that they are ultimately subversive of traditional civil liberties. This position is addressed intermittently and insubstantially in the text, for Campbell’s main concern is the family quarrel within socialism between “reformists” and “revolutionaries”. Campbell sees the revolutionary socialist as one for whom “the whole notion of rights is incurably bourgeois ... Under socialism all will work together spontaneously in a willing spirit of co-operation unencumbered by restrictive regulations and the self-interested competitivism in which the language of rights is rooted” (p 5). Campbell locates himself within the reformist socialist camp, which he sees as distinguished by an outlook that “while admitting the relative and inadequate nature of bourgeois rights, seek[s] to salvage something of lasting value from the traditional concept of rights” (p 3). It is to this “family quarrel” within socialism that his primary attention is given. The repudiation of the main elements of the revolutionary criticisms is the launching pad for the first five chapters of the book and as this forms the basis for the elucidation of the essential rights of a socialist society, it is worth spelling out in some detail.

Socialism and RightsAll talk of rights is flawed for Campbell’s “revolutionary socialist” for four

reasons, namely, in that it is intrinsically contaminated by the discourses of moralism, legalism, coerciveness and individualism. Campbell disagrees on every account. Firstly, he attacks the moralism of rights on the basis that the appeal to moral rights is merely another way of invoking principles which are used to justify rights. He concludes that “[f]ew socialists could accept the notion of moral rights if this saddles them with a theory of natural law” (p 23) on the basis that such a theoretical position seems “incompatible with characteristic socialist accounts of the emergence and function of moral rules in pre-socialist societies” (id). Furthermore, in his chapter on “Socialism and Human Rights” (pp 103-122) he refers to the “datedness” of moral epistemology emphasising the intellectual primitivism involved in dallying with “obscure metaphysical entities whose existence or non­

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existence is beyond the scope of empirical observation or rational criticism” (p 105). These remarks clearly indicate that Campbell’s feet are well immersed in the shifting sands of empiricism, which, as Mensch recognises in The Politics of Law, involves a rigid division between statements of fact (which may be proven or falsified) and statements of value (which are in essence unprovable subjective expressions of taste). Since all moral discourse falls into the latter category there can be no such thing as “true” values (the position otherwise known as ethical non-cognitivism). It follows that all natural law theories, presuming the existence of absolute, transcendent values and by implication, of course, socialist values, have no objective truth-value.

These assertions, however, are difficult to square with the arguments Campbell uses to list the necessary substantive elements of socialist rights. For him, they derive from the “interests and concerns of individuals” (p 99) and he lists them in the latter chapters of the book. In essence they look very much like a minimum content of natural law, particularly given that they are grounded in the discoverable capacities of human beings and, more importantly, that any state not recognising them “forfeits the right to be obeyed”. Indeed, this is precisely the way in which many forms of natural law have been argued, from Hart’s “minimum content of natural law” based on the “truisms” of human nature (Hart 1961:189-195) to Aquinas’ deductions from the law of God. Additionally, it is hard to see how any socialist analysis can avoid collapsing this distinction between fact and value, since an intrinsic part of the scientific analysis of class societies is a critique wedded to some projected form of radical praxis. This, in turn, necessarily involves identifying the nature and role of ideology. As one theorist has put it:

one is only justified in characterising a set of beliefs P as ‘ideological’ if both (a) P is false, that is one possesses a superior explanation for the phenomena in question; and (b) P is more or less contingently (conjuncturally) necessary, that is one possesses an explanation of the falsity of the beliefs in question (Bhaskar 1979:80-1).

Now this logically leads to another conclusion, namely, that “to criticise a belief as false is to criticise any action or practice informed or sustained by that belief, but also anything that necessitates it” (id).

There is a positive side to such critique : the programmatic aim of a struggling for a polity based on an ethics of egalitarianism, democracy and need fulfilment. In this sense a socialist ethics is not just an item of conceptual baggage which supplements scientific analysis; rather, it is imbricated in and informs that very analysis. So it involves a dissolution of the division so central to traditional empiricism (and, of course, liberalism) between moral philosophy and epistemology. As suggested, this much seems implicit in Campbell’s overall project, and while he does acknowledge “the socialist emphasis on the permanent importance of the essentially creative nature of man has something of the flavour of natural law theory” (p 23), he somewhat contradictorily concludes that “natural law theory ... outside a theological context ... lacks the necessary philosophical support” (id).

The next hurdles are those of the individualism and coerciveness of rights. These are among the most important chapters in the book for they thoroughly subvert the

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idea that the concept of rights is anything other than historically and socially determined. Thus, he argues, the individualism of rights only makes sense in an individualist culture, in particular, a capitalist society where individual autonomy is paramount. The assumptions of traditional jurisprudence are undermined in that a socialist society would not be constituted by a network of competing egoistically- minded individual bearers of rights. Such a conception of rights derives, as Campbell sees it, from two basically flawed theories, namely, “contract” and “power” theories of rights. After rebutting these “bourgeois” approaches, Campbell concludes convincingly that “the proper target of the socialist onslaught on individualism is not the institution of rights as such but the prior assumption that human nature is irredeemably egoistic” (p 101).

Much the same approach is directed against the notion that rights necessarily involve coercion. Campbell here addresses himself to the arguments of two major figures in the pantheon of twentieth century jurisprudes, Hans Kelsen and H.L.A. Hart. His analysis of Kelsen is detailed and perceptive (pp 65-76) identifying, crucially, Kelsen’s essentially Hobbesian project of insisting that law ought to be obeyed if it is a valid law. Validity is in turn seen as a function of “effectiveness”; and effectiveness is established if and only if a substantial section of the community support it. This, of course, is to collapse the technical question (validity) into the sociological question (effectiveness). Further, the result of this exercise is to assert that we ought (in a moral sense) to obey a valid law, if others do. In other words conformity becomes a moral imperative. Campbell subverts this form of reasoning by separating the sociological question from the technical question concluding that, sociologically, socialists maintain that a generally non-coercive society can emerge which undermines the positivists’ claim in the analytical connection between law and coercion.

Campbell’s rejection of Hart is much less persuasive. Quite apart from the obvious objection that Campbell is operating with a rather utopian conception of socialism here (as in many other parts of the text) he nonetheless misses the further point that Hart’s minimum content of natural law is squarely contrary to Campbell’s rights respecting the “interests and concerns” of human beings. Further one would have expected Campbell’s socialist leanings to challenge Hart’s characterisation of officialdom as bound together by a “critical and reflective attitude” (Hart 1961:113). Clearly, an ethos committed to the implementation of rules of any legal system (used as autonomous standards of behaviour) is quite antithetical to the normative structure of a socialist society.

This point is particularly relevant to the final revolutionary critique of rights — that they are inherently legalistic. This critique is dismissed on the basis that legalism does not merely mean that rule-following is an end in itself. For Campbell it remains that rule-following may achieve other socially desirable ends therefore societal rules (and therefore rights) can be socialistically proper. Thus the beneficial, instrumental purposes to which rules can be put rescues them from the taint of mere proceduralism. These benefits specifically are: organisational capacity, rules being necessary to ensure that large-scale units operate effectively; redistribution, for rules are seen to further this aim also; and, finally, social control. To counter the objection about the obvious coerciveness of “control” Campbell insists that this would not be coercion in the usual sense of the term but “uncoercive mutual

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monitoring and control of interpersonal behaviour” (p 47). This would be a feature “even in a community of ‘brothers’”, he adds, “and could not be achieved without a corpus of societal rules” (id).

This latter remark finishes off the revolutionary socialist’s case. But it simultaneously raises a number of problems which infect the argument as a whole. Firstly, one might ask how uncoercive mutual monitoring differs from coercion. Coercion “would not be there to restrain malicious selfishness, but to ensure that human good is protected in ways which are not self-evident to the ordinary benevolent individual” (p 45). But, surely, the gist of Campbell’s critique of the revolutionaries is that their image of socialism is utopian. However, his position would seem to take utopianism one step further. Indeed, one of the major difficulties with the text is the revolutionary/reformist dichotomy. Campbell is generally rather vague about both. It is unclear, for example, to what extent “reformist socialist” differs from the reformism which has characterised, say, post­war British Labourism. At times, for instance in the chapter on socialism and human rights, he urges an “updating” of human rights, namely the addition of some economic rights to the formal liberal freedoms. This has the ring of a distinctly social democratic platform. Yet in his chapter on the right to work, he devotes space to discussing rights to participate, control and rotate work, a reform considerably in advance of, say, what most contemporary socialist societies attempt to do. The difficulties derive from his failure to define with any real specificity what he means by socialism. The reader is therefore left to glean a number of references scattered throughout the text.

An attempt to make good this lacuna is contained in his chapters specifying the content of socialist rights. These fall under three major headings: political rights, the right to work and welfare rights. These substantive rights are all founded on Campbell’s basic theory of rights which insists that they are “directed towards the protection and furtherance of those concerns which express the needs of active and creatively productive human beings”. The interests and concerns of individuals of Chapter 7 on justificatory principles thus boil down to “needs”. Importantly, needs are extended to political participation and therefore rights to free expression are at the core of the socialist bundle of human rights, principally because they “promote the common good” a la Rousseau. This represents an important distancing from economistic Marxisms for it emphasises that transformation of the economic infrastructure is, by itself, insufficient to constitute a socialist society. It is unfortunate, though, that Campbell does not devote attention to recent discussions of the relationship between Marxism and democracy3 to give an added dimension to his argument.

The other two categories of rights are, naturally enough, the right to work and welfare rights. In respect of the former, a genuine radicalism is shown in the call for an end to the rigid division between mental and manual labour and management and labour, something that many so-called socialist societies have been notably unsuccessful in addressing. This section of the book is very positive and constructive, attempting to add flesh to the barest bones of what socialism is usually seen to amount to. Campbell, to his credit, despite wavering at times on what socialism might be, nonetheless does in the end provide a tentative outline of some of the contours which institutions in a socialist society might look like. In this sense

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he goes one further than most of the writers in The Politics of Law.There are, however, some references in these latter chapters which might jar with

many socialists. Phrases like welfare rights “directing the actions of those with command over economic and human resources” and “officials will have role-based rights to require others to act” (p 80) and “[t]he chief purpose of societal rules ... will be within the normal administrative arrangement of whatever institutional arrangements were thought necessary to organise communal life ...” coupled with “a measure of large-scale co-ordination is required if modern productive systems are to be adequate for human needs” (id) evoke centralised planning and bureaucratisation on a large scale. This, of course, is incompatible with a society premised on the principle of maximum popular self-governance. Given that Campbell refers in a very general way at many points in the text to democratic socialism, a discussion of this issue would have enriched the general argument, as well as indicating Campbell’s attentiveness to the problems of bureaucracy which continue to plague contemporary “socialist” societies.

“Dogmatic” Linguistic PhilosophyAs noted above, the “dogmatic linguistic philosopher” (p ix) is one of the

protagonists Campbell takes issue with. The reason for this is due to the fact that “the intellectual constraints imposed by inherited conceptual outlooks still present major hindrances to progressive social theorising” (id). This dovetails into his attempt to join theorists of the Left and Right in “fruitful dialogue”. In order to assess the value of this project, however, it is first necessary to examine firstly, what Campbell means by dogmatic linguistic philosophy and, secondly, what form this dialogue is likely to take.

Within linguistic philosophy there are essentially two major camps. The first, most commonly associated with Bertrand Russell, has been termed “alternative” language philosophy (Graham 1977). The second is ordinary language philosophy, dominated by the figure of Ludwig Wittgenstein. Now Campbell does not distinguish between the two though one would have expected that given the orientation of the book some significant argument might have been focussed on this question, especially since these camps still exercise considerable influence in philosophical circles generally and jurisprudence in particular. Further, the epithet “dogmatic” seems unjustified given such an omission. A style of theorising is hardly undermined by iterative labelling. This oversight has significant consequences for the book’s general discussion of rights. In the section of H.L.A. Hart, for example, there is no reference whatever to the extent to which that work is paradigmatically within the ordinary language philosophy tradition and how the “dogmatism” of that tradition is specifically manifested: the standards which are used to determine which language is “ordinary” are conspicuously discretionary. Given Campbell’s innovative project, his argument might have been the more compelling had this undercurrent been addressed.

Ordinary language philosophy begins to look increasingly deficient when confronted with the facts of historical change. The epistemological primacy attached to current “ordinary” usage seems particularly shaky when put in the context of the day-to-day struggles for dominance of numbers of incompatible meanings. Indeed, this is precisely the exercise that Tom Campbell himself is

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engaged in. Reference to recent history provides another illuminating dimension to a conceptual analysis of the idea of rights generally since it poses the question of why so much political debate is currently cast in terms of rights. Arguably, this particularly post-war phenonemon has been induced in part by two factors: first, and most obviously, the emergence of philosophical humanism consequent on the experience of Fascism and Stalinism (crystallised in, inter alia, the U.N. Declaration on Human Rights); second, the redistributive functions of the welfare state have given credence to a whole range of claims to rights previously unthinkable in legal terms. This development has been strengthened by the fact that increasingly courts are, in so many areas, moving away from the application of “formal” justice (involving the application of broad and general rules) to “substantive” justice (where the distributive outcome of decisions is prominent and notions of fairness are considered). Contract and family law are clear examples of this trend. Correctively, the increasingly managerial role of the state precipitates assertions by groups that the state must recognise their interests: the state’s reaching more into society engenders the increasing legalisation of what were previously purely political, moral or economic issues. And thus Campbell’s book. In this sense it is representative of the breakdown of the very concept of rights, a problem which the overwhelmingly ahistorical tenor of linguistic philosophy is singularly deficient at theorising. The reluctance to examine the main features of its dogmatism weakens Campbell’s socialist analysis of the nature of law and rights in advanced capitalist societies. This weakness is the more striking given Campbell’s claim that the great strength of socialist analysis is its capacity to reveal the historical contingency of laws, legal concepts and legal theory.

IVConclusion

The “fruitful dialogue” which Campbell wishes to initiate has been characterised by one reviewer as an essay in political naivety (Eccleshall 1983). If by this term is envisaged a sober dispassionate exchange which will eventuate in the forces of conservatism being blinded by the light of “progressive social theorising” the charge is justified. However, it seems clear that this is not what the author is getting at. Rather, as his attack on the “revolutionary socialist” position makes clear, the gist of his argument is that socialists have no good reason to see debate on the terrain of jurisprudence as some form of theoretical revisionism. On the contrary, a consistently abstentionist position (essentially the state of affairs until quite recently) has given the stage to more conservative theorists. The book, therefore, does provide cogent advice on this score, and to the extent that it addresses critically and articulately many of the major traditional arguments in this area is a timely intervention.

Indeed, both books are effective attempts to subject a range of different domains of traditional legal scholarship to radical scrutiny. As such they directly and emphatically refute Eugene Kamenka’s recent suggestions that “[a]ll Marxists have remained intellectually reductionist” (Kamenka 1983:53), that they deny “that legal history is simply social, or political or economic history” (id 46) and that sophisticated radical legal theory effectively ended with Renner and Pashukanis. On the contrary, a whole gamut of Marxist and feminist approaches is in evidence here,

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many, though not all, displaying a keen awareness of the specifity of law. In particular, concrete analyses of contract law, welfare rights and anti-discrimination legislation in The Politics of Law are supplemented and enhanced by Campbell’s wide-ranging discussion of jurisprudential debate in The Left and Rights. There is, however, one uniting flaw, all-too-fitfully overcome: the reluctance to address the problem of transition. To a large extent this derives from excessive and exclusive dependence on the two polar co-ordinates of socialist theory: utopianism on the one hand and “scientific” historical materialism on the other. For the former a soft focus on the future has tended to displace the development of strategies based on the here and now. For the latter, the expatiation of the particular laws of motion of present and past societies in turn has tended to oust consideration of the precise forms of possible socialist institutions. Both elements are captured in the well-worn (if not thread-bare) promise that socialism will involve “the replacement of the government of men by the administration of things”. But as a recent review in this journal emphasised, socialism should be seen as a process beginning now rather than some sort of deus ex machina magically appearing in the future, and that “[o]ur politics and analysis need to not only inform some general vision of the future but also be constructed around and inform responses in the particular instance and reform in the day-to-day sense” (Hogg 1983:128). In this respect both books exhibit significant shortcomings. Campbell’s regular reference to a “non-coercive community of brothers” [sic] lacks any specification as to how we might get there. The Politics of Law with its repeated and vituperative denunciation of what is contains but a few allusions as to what might be, and how. A utopian discourse is a prerequisite for transcending a narrow bureaucratic reformism but

[a] shift from the axis of values to that of institutions, in projections of a socialist or communist future, has been much needed, and must bring with it a new sense of practical complexities. But that shift does not in itself represent a move out of the utopian space as such, so long as it is dissociated from any plausible analysis of the historical processes capable of realising values or institutions alike (Anderson 1983:104).

The critiques advanced in these books provide at least the crucial first step, and constitute a valuable springboard for the project Anderson advocates. The next necessary phase for critical legal scholarship is to develop those hinted-at practical complexities. Whereof one would insinuate thereof one should speak.

Brendan Edgeworth

Endnotes

1. 118 U.S. 394 (1886).2. 424 U.S. 1 (1976).3. See, for example, Gramsci (1971) and Hunt (1980).

References

Anderson, Perry In the Tracks of Historical Materialism (1983) London, Verso.Bhaskar, Roy The Possiblity of Naturalism (1979) Sussex, Harvester Press.Eccleshall, Bob “Book Review” (1983) 35 Radical Philosophy 36.Graham, Keith J.L. Austin: A Critique of Ordinary Language Philosophy (1977) Sussex, Harvester. Gramsci, Antonio Prison Notebooks (trans. Quintin Hoare and Geoffrey Nowell-Smith) (1971) New York, International.

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Habermas, Jurgen Theory and Practice (1974) London, Heinemann.Hart, H.L.A. The Concept of Law (1961) Oxford, Clarendon.Hogg, Russell “Book Review” (1983) 1 (2) Aust J of L & Soc 122.Hunt, Alan Marxism and Democracy (1980) Lawrence and Wishart, London.Kamenka, Eugene, “A Marxist Theory of Law?” 1 Law in Context 46-72 (1983).Kelman, Mark, “Consumption Theory, Production Theory and Ideology in the Coase Theorem”, (1979) 52 Southern California Law Review 669.Levinson, Sanford, “Escaping Liberalism: Easier Said than Done” (1983) 96 Harvard Law Review 1466. Shaw, George Bernard, The Intelligent Woman’s Guide to Socialism (1982) Harmondsworth, Penguin. Tubbs, Michael, “No Fault or No Rights” (1983) 8 Legal Service Bulletin 209.