The Afghan Crisis and the Transformation of Bourgeois Law
"For the abolition of moral fetishes can only be accomplished in practice simultaneously with the abolition of commodity fetishism and legal fetishism."
Pashukanis, Marxism & Law, 1929
The September 11th massacre, the Afghan 'war' and the seemingly inevitable world economic recession will catalyse various dynamics that were already beckoning capital toward a 'paradigm shift'. Below we will analyse some of the ramifications for proletarians in Britain and Europe (Middle East and USA will be treated in future leaflets).
Justice & The Law:
As proletarian atheists we may feel inclined to despair of a world where bourgeois religious imbeciles brazenly insult our intelligence and use every trick of the trade to postpone a classless world human community. For instance, all this talk of 'vengeance' and 'retribution', emanating from the White House, seems to us very strange indeed. On the face of it, it seems that political discourse has been hijacked by 'Fundamentalists' with a panacea for blood and guts. An Old Testament 'god of vengeance' has temporarily sided with the New Testament 'god of love' in order to launch a crusade against the Koranic 'god of hate'. No doubt in the near future a star-studded Hollywood production will depict the antagonism in precisely these terms. A closer examination, however, suggests a more complicated pattern emerging with new areas of proletarian activity being criminalized and mini-moral crusades being launched in order to create a state of permanent emergency, imbued with a sense of fear and loathing.
Paul Lafargue's periodisation of the concept of justice is a useful starting point. In the pre-capitalist world the law of retaliation ruled supreme. Justice was, by and large, retributive. Exodus (XXI, 23, 25) puts it succinctly: "Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe." Lafargue claims this "alone could give full satisfaction to the sentiment of equality of the primitive communist tribes, whose members are all equal" [However] private property once established, blood no longer demands blood; the law of retaliation is transformed...and the idea of justice, which at its origin is but a manifestation of the egalitarian spirit, goes on, under the action of the property which it helps establish, to sanction the inequalities which property engenders among men." Lafargue called this new concept of justice, distributive justice.
Perhaps we are now shifting towards a period where distributive justice has lost its hegemony and needs to be reinforced by a 'post-modern' version of retributive justice. This hybridisation will provide the state with more flexibility in dealing with proletarian insubordination. If so this would be part of a wider strategy to redefine citizenship in terms of more duties and fewer genuine 'rights'. Gradually and in small incremental stages we have all become suspects. In the 'good old days' of capitalist barbarity, we were all innocent until proven guilty. Even when found guilty we could plead extenuating circumstances and relativize our 'sins'. Today, an increasingly absolutist faceless machinery assumes our guilt until we have gone out of our way to legitimise our existence. The planned large screens connected to face recognition software proposed for the London underground is a manifestation of this new phase of bourgeois law. Members of society with past convictions will, henceforth, be actively targeted in public places, their 'shame' will be displayed for all to see. The integrated spectacle has reintroduced mediaeval branding. Likewise, the mindful thugs who had wormed their way into an anti-capitalist/anti-war march at the Labour Party Conference at Brighton were circled and 'taken-out' even before the march had got off the ground. Significantly, this was done with the connivance of the leftist organizers. We still do not know who exactly was responsible for this counter-revolutionary manoeuvre. If the stewards consisted mainly of the zombified cadre of the 'Socialist' 'Workers' Party (SWP), then we are faced with a manageable tactical (i.e., one-off) problem. We can expose the SWP's collaboration with the state in the same way the Militant Tendency was attacked after they threatened to "name names" and "hold a public inquiry" following the anti-poll tax riot in central London. However, if our 'betrayers' were a combination of SWP and TUC bureaucrats, then we should tread more carefully. The TUC may not call for general strikes and the overthrow of capitalism very often nowadays (!) but unlike the paper tigers of SWP they still represent a substantial power base. We will not allow 'liberal-progressive' scum (whether the SWP, the TUC, or leeches like Naomi Klein and George Monbiot) to marginalize revolutionaries.
Proletarian Law or The Abolition of Law?
Pashukanis writes: "The withering away of certain categories of bourgeois law, in no way implies their replacement by new categories of proletarian law, just as the withering away of the categories of value, capital, profit and so forth in the transition to fully-developed socialism will not mean their emergence of new proletarian categories of value, capital and so on." He is right. We do not desire the replacement of bourgeois law with proletarian law or for that matter bourgeois morality, equality, rights and justice with their working class equivalents. The judicial way of looking at life is the "secularisation of the theological", in which "human justice takes the place of dogma and divine right, and the state takes the place of the church" (Engels). Saint Antonio of Rebibbia (a.k.a. Antonio Negri) may welcome this shift from the 'plane of transcendence' to 'the plane of immanence' as a gain for the proletariat (see Empire by Negri & Hardt, 2000). We know better!
The law works in tandem with morality. In fact they are each other's mirror image. For whilst the law creates an artificial separation between public law and private law, morality in its Kantian expression of the categorical imperatives ('thou shalt''), re-connects the public and private spheres lest the fissure becomes a chasm. The law encourages this dualism because if its offensive is to be successful it needs to treat proletarians as individual subjects. Morality attacks proletarians by bringing them together under false pretences (e.g., nationalism, religion, etc). The recent moral panics initiated by the British bourgeoisie have all targeted sub-sections of the proletariat. The AIDS panic blamed homosexuals, prostitutes, heroin addicts and (in the USA) Hispanics. The anti-travellers campaign targeted western 'untouchables'- the gypsies. The anti-mugging campaign was clearly directed at Afro-Caribbean proletarians whilst the anti-paedophilia campaign concentrated on white British proles. The recent anthrax scare has 'Asian' proletarians in its sight. However, the significant thing about all these moral crusades is how rapidly they are generalised to include all. We must not allow the bosses to pick us off one by one, as they did so successfully with miners, printers and steel workers in the eighties.
In a sense whether compulsory ID cards are introduced by the government or not is a moot point. The real aim in this case is probably not increased surveillance (which can be achieved more efficiently by employing more sophisticated mechanisms than the clumsy ID card) but the reduction of the proletarian social wage by restricting access to welfare services and the perpetuation of a state of fear/distrust. They will begin with asylum seekers and children and soon reach the rest of us. The 'voluntary' nature of the cards will gradually give way to compulsion. When these attacks are combined with further restrictions on our ability to criticise reactionary mystifications such as religion, more electronic snooping and the marginalization of jury trials, the contours of the new social contract become evident. More duties, fewer 'rights'. In the next few years, the legislative and judiciary may become temporarily more powerful in absolute terms (since the transformation of national sovereignty to a European sovereignty entails new institutions and regulations) but in the long term it is the executive branch of the state that will reign supreme.
As our relationship with the law becomes transformed we need to re-evaluate the function of the judge, the lawyer, the increasing number of arrests, and our response. Those lawyers (and many of them are becoming proletarianised) who side with us must do so not as specialists who 'know better' but as comrades willing to help us get off the hook and whenever possible to turn the tables on the accusers and transform the trial into an attack on capitalism. In brief, we must reject the first two tendencies listed below in favour of a new approach towards the law:
The first tendency, the 'anti-Perry Mason' tendency, believes we must have no truck with the law. Sadly, the moment one of their members is invited to put his/her feet up courtesy of Her Majesty's prison services, they crack and are completely overwhelmed by the judiciary's aura. Then there is the 'Ally McBeal' tendency, who see themselves as courtroom warriors and who may in the short term help a few individuals beat the rap. However, in the process bourgeois law is reinforced, as none of its political underpinnings are put under erasure. Finally, the 'very-very-clever' tendency, understands that as soon as demonstrators are arrested, the working class has entered the realm of bourgeois law, whether we approve or not. However, this tendency also understands that the legal defence of our comrades must never overshadow the struggle but must become an extension of it. Thus far we have only attacked the executive and legislative branches of the state. If the state decides to break us through long and arduous legal battles, then the judiciary too must become a focus of our anger. This must be done through laying bare the mechanisms of liberal 'justice' without jeopardizing arrested comrades. Our approach must show the anti-working class nature of 'Zero Tolerance Policing', and how what began as an assault on refugees is now being extended to the whole class. In short, our attitude towards the law must be neither conformist nor anti-conformist but non-conformist. The 'rules of the game' must be altered even in the courtrooms.
(Afghan Series, Number 2) 18.10.2001
Address for Correspondence: Melancholic Troglodytes, Box no. 44, 136-138 Kingsland High Street, London E8 2NS, United Kingdom