Law as unifier of the state

The Poulantzas project 2

Bob Jessop’s book on Poulantzas [Nicos Poulantzas: Marxist theory and political strategy, 1985, Macmillan] helpfully summarises some of the early papers I can’t read as I don’t know French. There’s some useful background on his view of the law which is highly condensed in the translated papers. This, in particular, is useful in clarifying his view of the nature of the ‘internal’ logic of law discussed in the last post:

One of the most pervasive and fascinating influences within modern legal theory has been the neo-Kantian positivism of Hans Kelsen (and the so-called ‘Vienna School’) with its concept of a purely internal Normlogik. This argues that an effective legal order must be hierarchically unified under a fundamental legal norm (Grundnorm) and backed up by effective coercive sanctions. It also declares the state and law to be identical and insists that in any one society only one sovereign, coercive legal order is possible. Indeed Kelsen argued that in any real, ‘sociological’ state there will be many authorities, multitudinous relations of domination, numerous acts of commanding and obeying: only the unity of the legal order justifies us in considering the state as a single system of domination. For the same reason Kelsen denied that the state is a subject which exercises power – its power is simply that of a valid and effective legal order. At best he was prepared to concede that the machinery of state (‘the bureaucratic apparatus’) is the material personification of the broader formal legal order within a nation-state. He also suggested that the division between public and private law is ideological and simply serves to dissimulate private law as located beyond politics…

Poulantzas accepted that this formal, logical account of law holds for the modern legal system. He denied that it is valid for all legal systems… Thus he attempted to locate this Normlogik historically without denying its effectivity. He suggested that the development of a legal system with a distinctive, formally rational, rechtsstaatlich character can be explained in terms of its correspondence to a distinctive mode of production. At the same time he tried to explain how the modern legal system with its distinctive juridical logic helps to determine the operation of law, economy, and civil society. In this way Poulantzas hoped to break with the unresolved problem of Kelsen’s pure theory of law, namely, the source of the Grundnorm from which all other principles can be derived through a process of legal reasoning. Thus, while recognising the distinctive ‘internal’ structure of the modern legal system, he also offered an ‘external’ account of its determination. [p. 45]

This idea of the law as the unifier of the modern state – or in fact that the state is nothing but the system of law and the institutions constituted by it – is an interesting one. Though of course, it is only true in the legal sense – it is the legal definition of the state. Poulantzas’s point is that the shape of the state and law is determined as much by the shape and pressure of other social domains external to it as by its internal legal principles.

The law is in one sense the most pervasive element of the state, reaching into all corners of society – a ‘witness’ in court can retrospectively make state power present at any site. But at the same time, the law limits the state: one index of modernity is the binding of sovereignty by the ‘rule of law’ – a point stressed by Pashukanis.

Published in: on 11 October, 2010 at 8:19 pm  Comments (1)  

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  1. hi again Mike,
    I’ve been meaning to read Poulantzas (and Pashukanis) closely for quite a while, not least because it overlaps my academic and extra-academic interests. I’d be keen to hear what you’re planning to read next, to sort of read at roughly the same time as you.
    Two other things. One, on law and the limits of the state, you might be interested in Robert Steinfeld’s work on law and free labor. I believe he makes a similar point in two books – free labor at law actually came fairly late in the common law countries, bound labor persisted at law for a very long time (incidentally, a friend has found indenture contracts being used in some parts of the early 20th century US). If I remember right, he shows that free labor was the result of a legal receding, rending labor private, and shows that the legal initiative came largely from within law and not from employers. I think this troubles the historical connection people often posit – I’m thinking here of your marxology post – between free labor and capitalism.

    Second thought, again thinking of your marxology post. In that post you pointed out how Marx’s work was largely conditioned by his era/moment and so there’s a sort of translating or transposing that has to happen in using that that work to think about other times (I’d say likewise that Marx’s geographic location is important too, there’s a good essay called “the Pedestal and Veil”, by Walter Johnson, that gets a bit into how Marx generalized from British specific aspects of capitalism in ways that led him to understate the role of slavery in the capitalism of his day). As the Poulantzas Project goes on I’d be keen to hear likewise how much Poulantzas’s work is time- and location- specific and how you translate him for looking at other moments. Then I can crib your ideas for my work on the turn of the 20th century US…

    take care,

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