2018-03-10 / Legal Form / English
This is a blog post published first at Legal Form.
This post will consist of some very preliminary thoughts, amounting to the first steps in a larger project. I proceed in four steps:
1. I begin by discussing three questions central to the theme of revolutionary jurisprudence.
2. I then sketch three socialist or revolutionary strategies that have traditionally been adopted in relation to the question of law, and I draw out the implicit concepts of law that unite these strategies.
3. I subsequently attempt to sketch a fourth strategy that is capable of being reconstructed from the work of Giorgio Agamben.
4. Finally, I provide an example of a revolutionary jurisprudential action that follows from this fourth strategy.
This project started more or less with the title. I initially defined the phrase ârevolutionary jurisprudenceâ as the question of law in relation to an impending communist revolution. I soon decomposed this rather vague description into three specific questions:
1. What role can legal thought or legal order play in an impending communist revolution?
2. What role can legal thought or legal order play during the revolutionary moment?
3. And finally, what role, if any, can legal thought or legal order play under communism?
Much important work has been done using the tools of historical materialism in order to critique capitalism and its different legal forms. The more âutopianâ question of what use law might have under communism has largely been ignored, or at least not confronted directly.
In my view, the most interesting relevant work in the Marxian tradition dates from the early days of the Russian Revolution. Evgeny Pashukanis developed a specifically legal theory primarily on the basis of Leninâs work. [1] This does not, of course, mean that Pashukanisâ theory offers the only means of engaging law from the perspective of revolutionary socialism or communism. Summarily speaking, we can identify three typical strategies of this kind in the broad tradition of socialism and communism.
The first strategy is the most familiar: using existing legal frameworks to reform society from within and with the aim of moving toward a more egalitarian future. This is the path taken by different strands of left-liberal socialism. Only when viewed as the precursor to revolutionary struggle, as in early forms of social democracy, can this properly be characterized as a form of revolutionary jurisprudence.
The second strategy takes two main forms: Leninism and early forms of social democracy. Leninism focused on revolutionary struggle through large-scale action with the ultimate aim of realizing fully fledged communism. Traditional forms of social democracy prioritized electoral support and parliamentary representation.
The third strategy is in a sense antithetical to the first two: the anarchist call for the destruction of the state. Although the destruction of the bourgeois state is also a central tenet of Leninism, the latter famously accepted a new state, governed by a proletarian dictatorship, for the intermediate stage of socialism.
What unites these three strategies is that they have all been used or at least invoked as a means of achieving a single goal: communism, i.e. a world without class rule and capitalist social relations.
The first strategy is in essence a conservative one in regard to law. It holds that social change is possible within the current framework of the legal order, continuously improved and made more egalitarian over time. In Leninism, lawâs role is more complex. On the one hand, it was clear to Lenin that the ultimate goal of the revolution was the destruction of class society and with it the state and the entire bourgeois legal order. During the first stage, law would, however, remain, and it would be bourgeois in nature. In The State and Revolution, Lenin writes as follows:
âIn its first phase, or first stage, communism cannot as yet be fully mature economically and entirely free from traditions or vestiges of capitalism. Hence the interesting phenomenon that communism in its first phase retains âthe narrow horizon of bourgeois lawâ. Of course, bourgeois law in regard to the distribution of consumer goods inevitably presupposes the existence of the bourgeois state, for law is nothing without an apparatus capable of enforcing the observance of the rules of law. It follows that under communism there remains for a time not only bourgeois law, but even the bourgeois state, without the bourgeoisie!â [2]
In the course of the transformation of social and economic relations, law would wither away, as would all other aspects of the bourgeois state. During the revolutionary transition and in the first stage of communism, laws would be wielded as tools in the hands of the proletarian state. But as Pashukanis clearly states in The General Theory of Law and Marxism, the demise of bourgeois law must also mean the demise of law generally:
âThe withering away of the categories (but not the injunctions) of bourgeois law does not signify their replacement by new categories of proletarian law. ⊠The withering away of the categories of bourgeois law will under these conditions signify the withering away of law in general, i.e. the gradual disappearance of the juridic element in human relationships.â [3]
The third strategy, mainly developed in anarchist thought but also discernible in certain ultra-left and libertarian communist traditions, is the radical answer to the above. Instead of ushering in a communist world through the use of tools from the old world, the only path forward is to crush the old world and its tools outright. In other words, to leave law behind.
But what then is it that will be left behind? What precisely is the law that we will abandon?
The Implicit Concept of Law
A tentative answer to this question is that there is an implicit account of law, a specific type of juridical structure, to which each of these strategies relate. This account of law is also the counterpoint to the ultimate goal, namely life in communism.
Put simply: in the same way as class society and capitalist social relations alienate us from both the fruits of our own labour and from each other, juridical and legal structures alienate us. It may be that the central characteristic of law is to be found in a certain distancing, which removes aspects of life from life itself. While law is not, of course, the only means of achieving this distancing (the market economy, in particular the money form and wage contract, are other such means), law has become the general form for this type of social reproduction. [4]
The ultimate goal of communism would then mean that no juridical forms or legal relations alienating or distancing us from each other would be necessary. The process of resolving disputes does not require institutions wielding coercive power.
A simple but vivid discussion of this is offered by Lenin:
âWe are not utopians, and do not in the least deny the possibility and inevitability of excesses on the part of individual persons, or the need to stop such excesses. In the first place, however, no special machine, no special apparatus of suppression, is needed for this: this will be done by the armed people themselves, as simply and as readily as any crowd of civilized people, even in modern society, interferes to put a stop to a scuffle or to prevent a woman from being assaulted.â [5]
The question of the use of laws or other juridical forms is here reduced to the capacity of moral persons to prevent moral wrongs. The essence of the juridical can then be understood as distancing, the mediation of conflict by a third party that wields (socially legitimate) power. âCommunismâ is the name of a world without laws that operate by distancing humans from their own actions and from each other.
I will now argue that the three strategies outlined above do not exhaust the possible strategies of revolutionary jurisprudence.
Fourth Strategy: Destitutent Power and Inoperativity
Giorgio Agamben argues that something has been lacking in revolutionary thought and practice during the twentieth century. In Homo Sacer, he writes that the state, as the fundamental horizon of political thought, has focused attention on the question of who has which powers. He argues further that this has become increasingly problematic as these structures âhave entered into a process of dissolutionâ. [6]
âThe weakness of anarchist and Marxian critiques of the State was precisely to have not caught sight of this structure and thus to have quickly left the arcanum imperii aside, as if it had no substance outside of the simulacra and the ideologies invoked to justify it. But one ends up identifying with an enemy whose structure one does not understand, and the theory of the State (and in particular of the state of exception, which is to say, of the dictatorship of the proletariat as the transitional phase leading to the stateless society) is the reef on which the revolutions of our century have been shipwrecked.â [7]
Agamben criticizes these strands of thought for examining the state inadequately. This critique is easy to sympathise with. Both pragmatic Leninists who sought to wield the state for revolutionary purposes and anarchists confident that the destruction of the state would liberate humankind were in this sense quite naĂŻve with respect to the structures of the enemy.
Bypassing a variety of interesting questions in Agambenâs thought [8], I will now attempt to sketch the alternative that Agamben offers and how it might be interpreted as (or developed into) a fourth strategy of revolutionary jurisprudence.
Both Leninist and anarchist strategies of revolutionary change rely upon a kind of leap of operativity in order to mark a rupture with the contemporary world. Agamben is profoundly distrustful of this reliance on great acts. He views such actions as the culmination of operative thought itselfâthe unfolding catastrophe of Western ontology, which we must surpass.
According to Agamben, what is needed is âto think man as the living being without work, which is to say, devoid of any specific vocation: as a being of pure potentiality (potenza), that no identity and no work could exhaustâ. [9] One of the many ways that Agamben attempts to think the question of inoperativity is by way of the Sabbath. He observes that actions undertaken on the Sabbath are generally the same as those undertaken on other days, but they are ârendered inoperative, liberated and suspended from its âeconomyâ, from the reasons and purposes that define it during the weekdaysâ. [10] And here, as in other places, he offers various examples of inoperative use: exchange of gifts, carnivalesque inversions of power, dancing as liberation of bodily movements, masks as means of neutralizing faces, and not least poems as the rendering of language towards new potentials for use. [11]
While operative strategies of revolution and insurrection are grounded in the notion of âconstituent power, that is, a violence that establishes and constitutes the new lawâ, Agamben attempts to imagine a âdestituent powerâ, that is âto imagine completely other strategies, whose definition is the task of the coming politicsâ. [12] What Agamben seeks to articulate here is a power that puts an end to the incessant dialectic between constituent and constituted power, destroying and at the same time recreating new forms of law. Destituent power would âdepos[e] law once and for allâ. [13]
Another theme through which Agamben thinks this new politics is St. Paulâs attempt not to destroy law but to make it inoperativeâto conserve and abolish it at the same time, effecting an Aufhebung of the law as it is. According to Paul, to become a Christian would not be to abandon oneâs identity, but to live as if it did not matter. There is a Paulinian, or Sabbatical, way of approaching oneâs circumstances in a new way in order to reach an absence of work, a state in which our actions can open themselves to the potentialities of politics and art. In Profanations, Agamben uses the following formulation:
âChildren, who play with whatever old thing falls into their hands, make toys out of things that also belong to the spheres of economics, war, law, and other activities that we are used to thinking of as serious. All of a sudden, a car, a firearm, or a legal contract becomes a toy. ⊠Just as the religio that is played with but no longer observed opens the gate to use, so the powers [potenze] of economics, law, and politics, deactivated in play, can become the gateways to a new happiness.â [14]
As Jessica Whyte points out, this enigmatic âfulfillmentâ of law has not received enough attention. [15] This is at least as important a thread in Agambenâs thought as his unparalleled and better known analysis of sovereign power.
Final Thought: The Role of the Jurist
To become slightly more concrete, I would like to finish with the smallest of attempts to think such a concrete revolutionary juridical strategy. A narcissistic question for those of us who are jurists might perhaps be what role we have to play in a coming revolution, and even more in a society beyond the present one.
Agamben often evokes the figure of Bartleby, the scribe who prefers not to continue writing legal documents, and who, in fact, prefers not to do anything. As a companion to the scribe, a figure occupying the lowest threshold of the juridical apparatus, we may consider the judge, the highest representative of this apparatus. If the overarching requirement stemming from the operativity that pervades Western society is to act, this is heightened to a revered principle in the office of the judge.
The traditional notion that the only thing a judge cannot do is to refrain from deciding the case before her may provide the perfect site for an act of inoperativity. To neither resign as a judge nor throw out the case on some technical basis, but instead to halt the whole process of unjust âjusticeâ, might be the most important revolutionary act a judge undertakes. In the Paulinian sense: to not renounce oneâs identity as a judge, but to use it in a new way.
[1] For a very interesting use of Pashukanisâ theory, see China MiĂ©ville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005).
[2] Vladimir Lenin, The State and Revolution [1918], available at https://www.marxists.org/archive/lenin/works/1917/staterev/index.htm.
[3] Evgeny Pashukanis, The General Theory of Law and Marxism [1924], available at https://www.marxists.org/archive/pashukanis/1924/law/edintro.htm.
[4] Many have argued that all social relations and all forms of social activity have become subsumed under legal forms. Agamben himself has made this argument; see, e.g., Giorgio Agamben, The Kingdom and the Glory: For a Theological Genealogy of Economy and Government, trans. Lorenzo Chiesa (with Matteo Mandarini) (Stanford: Stanford University Press, 2011 [2007]). Legislation is the main form of politics in modern states.
[5] Lenin, State and Revolution.
[6] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998 [1995]), 12.
[7] Ibid.
[8] See Daniel McLoughlin (ed.), Agamben and Radical Politics (Edinburgh: Edinburgh University Press, 2016).
[9] Giorgio Agamben, âWhat Is a Destituent Power?â, 32 (2014) Environment and Planning D: Society and Space 65, 69â70.
[10] Ibid.
[11] Ibid., 70.
[12] Ibid.
[13] Ibid., 71.
[14] Giorgio Agamben, Profanations, trans. Jeff Fort (Cambridge: The MIT Press, 2007 [2005]), 76.
[15] Jessica Whyte, Catastrophe and Redemption: The Political Thought of Giorgio Agamben (Albany: State University of New York Press, 2013), 98. I would, however, argue that the analysis of what this fulfillment entails is not sufficient in Whyteâs book (Whyte basically points towards Walter Benjaminâs proletarian strike; see ibid., 121). But this is likely to be a good indicator of both the importance and the difficulty of addressing the question properly in legal thought.
Tormod Otter Johansen is a doctoral candidate in public law at the University of Gothenburg.