By Ken Cloke
Ken Cloke is a lawyer working with the National Lawyer's Guild in California.
This article appears as a chapter in Law Against The People, edited by Robert Lefcourt, New York: Random House, available in November, 1971.
"One laxu for the Lion and Ox is Oppression" William Blake, The Marriage of Heaven and Hell.
A revolution is beginning in law. Lawyers and law students have begun to organize against and protest the systematic oppression of people perpetuated, in part, by the conscious design of those who control the means of law (intimidation ) and order Ccoercion) within American society and around the world. A growing understanding that \vc must recognize and move against a single common enemy whose countenance appears in Southeast Asia, Japan. Bolivia, South Africa, Spain, Harlem, the barrios and ghettos, and every part of the United States has placed legal repression in an international context. Lawyers and clients have been brought closer together. The new bond between attorneys and clients is partly due to the lawyers' understanding of themselves as potential clients. They identify with that which they advocate in their clients' behalf and advance it as truth; they will no longer allow their mouths, vocabularies, and other legal tools to be purchased at the highest price. They must avoid any understanding of their roles and occupations which would lead them on their own to rush up the courthouse steps, petition in hand, requesting redress of grievances, while their clients are trying to tear it apart from the rear. The lawyers' bonds to their clients also come from a growing realization .tfrat what is wrong with this country is so fundamental that a change here and there in legislation cannot rectify it. Once lawyers see themselves as ^attorney-events," once they recognize that the nature of
* 197* by Kenneth Cloke.
the problem is systemic and that the system in question has a definite historical origin, they will understand their own necessity and perceive, in the process, the manner of the "system's" dissolution and replacement. Our political history has been one of progressively decreasing alternatives. Lawyers are increasingly being forced by rapidly changing social circumstances into becoming either potential clients or potential jailors.
The initial problem for lawyers is one of consciousness. Lawyers have begun to recognize that part of their legitimacy flows from their objective role, regardless of their intentions, as hypocritical apologists and propagandizes of hope where no hope exists, or as technicians simply making certain that the illusion of fairness is procedurally undamaged. In merely bringing a lawsuit, an attorney may delude the politically immature, uncounselled client into believing he has a legal—i.e., a legally enforceable— right of redress, even where no court would grant the relief requested for political reasons. At the same time, we also understand that there is some political and practical utility in bringing or defending lawsuits. In order to understand this utility, we must return to a study in depth of the whole and the sum of its parts, of law and its actual effects on behalf of and in detriment to systematic social change.
The degree to which one sees fundamental social change occurring through law depends upon the degree of social change one believes necessary. If one's analysis is that the fundamental problem is racism, then a certain political viewpoint follows, which is reflected in legal attitudes. If one s belief is that racism is inextricable from monopoly capitalism and imperialism, radically different legal attitudes result. What is possible from one point of view is impossible from the other; a fundamental strategic concern to one is only momentary and tactical to the other. The differences between legal theories or approaches lie not in statutes or cases, but in different attitudes toward what the state represents, how it originated, and what is required to change it. It is therefore critical to legal competence that there be political theory which accurately describes the economic basis of law. This analy-
sis adopts the perspective which begins by defining state and law as the organized force of a social class. The law is a mechanism for governing which arises out of social contradiction in order to preserve the interests of one class in opposition to the interests of others.
When society gives rise to social classes as a result of the creation of an economic surplus, which becomes privately appropriated and therefore distributed unequally, one class protects its rights of appropriation by subjecting others to its will. This class then creates, out of a need to fix and legitimate its relationships with all other classes, a state, and with it, law. State and law thus reflect the accumulation of property as private property in the hands of the few and the demise of property as social property in the hands of the many. The law of theft dates from the emergence, on a large scale, of private, movable property and from its unequal distribution, i.e., scarcity. The law,
"Thou shalt not steal/' therefore is an expression of the existence of poverty and a social need to steal.
Both state and law exist as functions of the degree of contradiction between two progressively polarized social classes: those who increasingly own the instruments of production in society, and those who are forced to work at
them. The mere existence of a unified svstem of law for
two social classes which are increasingly in fundamental opposition to one another is itself oppressive. The purpose of such a system of law can only he the "regularization" of conflict between the two to insure that differences are always resolved in favor of the dominant party. Law, therefore, is an expression of the existence of fundamental inequality and exists wherever and to the extent that inequality exists. The composition of the ruling class and the methods used to uphold the interests of one class over another have changed significantly since the beginning of slavery, but their fundamental opposition has remained a fact to our day. Changes brought about in the method of exploitation have followed technological evolution as it continually altered the nature of wealth, and produced a need for new forms of social organization. The form of rule has seen numerous alterations, but it remains rule as long as human beings are divided into social classes. "Law and order has been pitted against justice for centuries. It will serve justice when it becomes the source of its destruction, by serving the exploited and oppressed in establishing the legal order.
Law, which is of, by and for the state, is determined in general by the specific form of class contradictions in a given society, and is simply a set of rules governing social relationships and determining how conflicts are to be resolved according to the interests of the dominant class, and given effect by the organized force and violence of that class. Law is not justice, a norm, neutral principles, nor ideal social harmony. It is not truth, due process, fairness, or any other idealization. Its guiding principles are the guiding principles of those who maintain their power partly through its auspices.
Most lawyers know that not all law is statute law, rules passed by legislative bodies, but will identify case law (ju-
dicial decisions) and English common law as the two major exceptions to rule by statute. Informal law, however, constitutes a large body of principles which is binding on conduct, yet is only seen in operation and therefore only understood when it contradicts written law, and, more practically, when it can afford to use the legal process to expose the contradiction. The common practice of the cop on the beat and the social worker in the field is understood by others to bind their conduct, and is therefore law. Informal law and its enforcement agencies, establishing different rules to govern the conduct of different classes, thereby further social conflict and duress. The law is required to be color-blind, but the cop in Watts or Harlem, the social worker, and probation officer and their supervisors are not. To be color-blind in a racist environment is simply to ignore the problem.
Law, or rule-making, presupposes conflict and attempts its regulation. It does so by establishing external means of coercion through formal and informal rules which encourage internal control. In this fashion, fault or wrongdoing is always laid to the individual, who is supposed to know the law, the reasons for its existence, and understand the difference between right and wrong. The probation and parole officer, the social worker, and other institutional officials—often including the lawyer—direct the offender to examine himself, and thereby obfuscate the origin of crime, or legal wrong.
Through the individual incident or transaction, law makes individuals the basic unit of any case. Class actions exist in civil law, but numerous and growing restrictions frustrate attempts to reach basic issues. The persons who are normally engaged in legal controversy are separated out from the mass of people by the legal process and made to look special; and each case is made to appear different from others. Legal games of distinguishing precedent and restricting the applicability of rules, except where general principles may help a judge justify a decision he has already reached, do the same; social struggles and political movements are splintered into their individual components and prevented from making any stronger or more collective statements than might be made by any of the
individuals involved. Yet often, the only way a judge or jury might understand motivations behind a particular act is through its collective statement. The approach to cases involving ghetto insurrections or political movements must be contrasted with the approach to cases concerned with corporate mergers and institutions: the different time given to proceedings, papers allowed to be
filed, fairness in consideration of competing claims, admissibility of "motive" in evidence, and attitude toward clients and counsel are remarkable. An examination of the Supreme Court cases as recorded in Law Week or the legislative record, and titles of bills passed in any year by Congress, reveals an overwhelming proportion having to do with business, monetary policy, and assistance to industry, and very few concerning "while collar crime" or social legislation.
The individual is most separated from the collective conditions of his act in the field of criminal law. Yet as Marx states in German Ideology, "Crime, i.e., the struggle of the single individual against the dominant conditions, is as little the product of simple caprice as the law itself. It is rather conditioned in the same way as the latter. The same 'visionaries' who see in law the rule of an independent and general will, see in crime a simple breaking of the
law." The legal process isolates crime from its social roots, although it may pay attention to the mother or father who drinks, or their individual lack of money. But it considers irrelevant the fact th?t our social system creates crime through its daily operation, sanctions the robbery of consumers by commodity producers and of laborers by employers, but not the reverse, thereby legitimizing and reproducing inequality.
A social analysis of law must proceed from an understanding of the value of legal proceedings to the parties and to society. Law begins with an occurrence, an historical event in relationships between parties which are, for the most part, historically determined: buyer and seller, landlord and tenant, debtor and creditor, etc. Legal transactions determine either the substantive rights of the conflicting parties, whose social relationships are accepted as given, or the procedural remedies available to the parties. The beginning point in either case is jurisdiction, wherein the process of legal adjudication is anarchic and almost totally immune from real planning or foresight, since it accepts all the social givens and insists upon an acceptable "case or controversy" before it acts. Thus, the major purpose of jurisdictional questions is the maintenance of established order. Both jurisdictional requirements and procedural problems which reach jurisdiction must be seen as reflecting the social need to adjudicate acceptable controversies, and to restrict the legal adjudication of problems which question the basic inequality by holding that there can be no action until a legally recognized injury has occurred.
Thus, the courts often refuse the enforcement of a right because it will "open the floodgates of litigation," or a "Pandora's Box" of questions the courts do not wish to face; or they may refuse to accept a case because it is not "ripe" for adjudication. Here, again, the procedural restriction further reduces legal rights for reasons the courts do not state. The result is that law merely follows social evolution, becomes purely defensive, and is only capable of acting when society has changed to the degree that previously unacceptable controversies are capable of moderate solution. Jurisdictional law thus demonstrates clearly
that law follows social practice and merely redefines what has already occurred. Courts reach such decisions as are socially necessary to validate expectations as to how people will behave in given relationships, and ignore any social facts which contradict their expectations.
Idealism—or the definition of material reality solely in terms of model ideas, concepts, and prepackaged "reason," the belief that material reality is only ideas—can be comprehended in every legal transaction. Law begins with real acts by real individuals, characterizes them in legal terms and then concludes that they are either legal and valid or subject to penalty. The legal conclusion is affected by the ways in which similar acts recorded in past transactions have been interpreted. Law thus applies dead standards to living acts, and interprets what is by what has been. The legal process, when it interprets individual transactions, does not permit that change may occur in real relationships, except where other factors have intervened, such as legislation, political struggle, or crisis, or when a different reality becomes so manifest that the ex-
isting legal rule is clearly antiquated. Even in the latter case, reality remains unrecognized to the extent that it contradicts the foundations of the existing order.
While idealism determines the form of law, material interests, specifically the interests of private property, determine its content. The basis of all law is the real, tangible interest in rights of ownership of property, which characterizes modern social relationships in practice. Most law has to do with competing claims to wealth. Socialist law claims all wealth as public wealth and exists for the purpose of transforming large holdings of capitalists' private property into public property of the working class, and therefore continues to be law. Only when all forms of ownership of property have deteriorated will law no longer fix rights of ownership. As it accomplishes this, it ceases to be law. Most statutes, decisions, administrative proceedings, and legal actions revolve around individual claims to property, or the efficiency of the state machinery which regulates and guarantees property expectations. The major areas of law, such as contracts, property law, wills, trusts, corporations, secured transactions, torts, administrative law, and even enormous proportions of criminal law protect existing property. Most international law relates to trade and economic interests. Even "poverty law" primarily involves conflicting claims to money, including issues of garnishment, nonpayment of rent, welfare, attachments, etc. In the interest of stability, and as a result of years of militant political action, the poor were guaranteed due process of law, but the substantive rights of parties in legal transactions always reflect the inequality basic to their property relationships.
The law assists in the dispropriation of the poor, not only in its decisions, but through the cost of court action to achieve redress. A worker has a legal right only to the wages he has contracted for with the employer; he has no right to the real value he produces for the employer over and above his wages. He has no right even to the wage he gets except by fighting for it. Poor people have no legal right to food or housing or employment. Black and Brown people and Indians have no right to determine their own lives according to their own needs, to the land which was
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stolen from them, or to treatment as human beings. The poorer countries have no legal recourse when the United States interferes in their affairs, expropriating their wealth and murdering their people. There is no legal right to do any more than protest one's slavery, and that, only if a permit has been received and the protest is not violent, does not block traffic, and does not present a clear and present danger of the overthrow of slavery.
The history of law in the United States is the history of its property relations. The courts have consistently ruled that property is not defined by the labor which produced it, but by who possesses it. It is valued not by its utility, but by what it is worth in exchange. It was in the heyday of industrial expansion that the United States Supreme Court, in the Slaughterhouse Cases (1872), defined property as "everything which has exchangeable value," and added, "The right of property includes the power to dispose of it according to the will of the owner." The sway of property permeates all branches of law. As it is doctrine that "equity intervenes only to protect property rights," injunctions will be issued to protect property more readily than to restrict it. The history of the labor injunction em-
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phasizes the social values which are built into law and which, through law, achieve new life. Even the poor litigant must raise a money bond for the issuance of an injunction, for claim and delivery actions to repossess personal property, and in some cases, in wage garnishment and attachment. Labor and debt collection laws give the appearance of fairness and justice while masking the substantive inequality which is endemic to the entire wage-labor system. Welfare law in many cases prohibits savings and reproduces and institutionalizes poverty. A court will issue an injunction against union picketing because of a rumored threat of violence on a picket line, but no court will en join a company from daily subjecting its employees to violence as a result of poor or unsafe working conditions on the assembly line. An injunction will not be issued on behalf of a worker as a result of a breach of contract by the employer because, on the one hand, the legal remedy is otherwise held to be adequate, or, on the other hand, because employment contracts supposedly lack mutuality, and are therefore unenforceable except by a suit for moneys due for services performed. It has often been pointed out that business libels against an employer on posters or picket signs may be enjoined, while group or racial libels may not. Moreover, the cost of bringing suit and the restrictions on attorneys serving poor clients constitute de facto restrictions on the ability of the poor to fight back.
The procedural justification for ignoring some realities and incorporating others is also found in the difference between equity and law, two historically different procedural frameworks for decision-making. In the language of Black's Law Dictionary, equity is "the spirit and habit of fairness, justness, and right;" thus, the famous maxims: "equity delights to do justice, and that not by halves," or "equity suffers not a right without a remedy," or "equity looks upon that as done which ought to have been done." Historically, equity was a transitional form for the introduction of new legal rules when antiquated feudal law began to paralyze the functioning of the new commercial intercourse. The existence of equity, or informal law, is in part a recognition of the inability of the legal system to
regulate conflict through its rulings alone. It is an implicit recognition that existing law has become outmoded and, to a certain extent, useless, that it is bound up in contradictions.
As feudal law was inadequate to regulate the growth of industrial commerce, today the legal precepts of the eighteenth and nineteenth centuries, which form the bulk of modern law, cannot apply to new social relationships. Recently, in outdated civil rights litigation in the South, equity allowed the creation of new legal forms, such as federal removal, petitions to transfer state cases to federal courts, three-judge federal courts, and the Dombrowski v Pfister injunctions against state court criminal proceed-
POGO By Walt Kelly
ings which "chill" the exercise of First Amendment freedoms. However, when Black Power and Black liberation became the major demand, especially when the demand challenged the basic postulates of the social system, equity and law, which previously developed in opposition to one authority, are united in their inability to substantially modify the rights and relationships fundamental to both systems, such as the right to raise an army and relationships such as those of employer and employee, and rich and poor. Neither equity nor law can solve these problems now, although equity was useful in earlier periods and contributed handsomely to the evolution of the civil rights movement in the direction of Black Power. The difference is that the substitution of capitalist for feudal law merely recognized the substitution of one form of wealth for another, whereas socialism seeks to abolish all private wealth. This, equity will not do, even by halves.
The historical dialectic of equity and law can also be seen as that between discretion and precedent. In certain areas, the "sound discretion of the court" is unchallengeable, whereas in others, the slightest deviation from accepted formulas is cause for a reversal on appeal. The difference may be only one of a few years in time, since court decisions are only reflections of larger social problems,as was true in criminal procedure or civil rights law. However, precedent has the effect, in all areas of law, of ratifying existing inequalities in relationships and making challenges to their underpinnings unthinkable. As Jonathan Swift, in Gulliver's Travels, comments,
It is a maxim among lawyers, that whatever hath been done before may legally be done again; and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. There, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of directing accordingly. 1
While it is true that modern law results in part from changes brought about through legislation and judicial
opinion, which in turn follow changes in real conditions brought about by considerable social conflict, after a point the law becomes apprehensive of its own abolition and refuses certain change. Debt and private property cannot, under the present order, be abolished by law, although either may change hands in an individual case. Theft cannot be legalized within the existing economic system (except for corporate theft), although an individual thief may not be punished. Through individual reforms the law maintains the fiction of its adaptability. Yet the fundamental inequality which is the basis and reason for existence of all law remains untouched.
The law contradicts its self-proclaimed adaptability by also pretending to immutability: Law therefore modestly suggests that it is all-changing, yet always constant; it is both all-knowing and all-seeing, old and new combined. History is circular, it maintains, things are always as bad and as good as they ever were, except in a few cases where they may be slightly better as a result of some well-reasoned judicial decision. Law has always existed and always will; inequality has always been with us and will always remain. The rule of precedent makes legal decisions appear to be the dominant force in social history and human, economic and productive relations appear to follow. In reality, the opposite is true, while the practical effect of this fiction is to squeeze reform inside the boundaries of law, where it can be more closely regulated. The legal institution betrays its claim to be the source of progress when it insists that since all conduct is regulated by legal means, all conduct has always and will forever remain regulated by law.
Through these contradictions, the myth has been fashioned that the civil rights movement began with Brown v Board of Education. Ignoring for the moment what motivated the Browns and others in several states to bring this action in the first place, the sheer audacity of such a statement is beyond belief. Indeed, the civil rights movement framed its original claim as one for legal redress; indeed, it took courage with the Brown decision; but to give nine white Supreme Court judges the credit for exposing to Black people the nature of racial discrimination is to ig-
nore an entire people's history, as well as developments occurring simultaneously on a mass scale which made these judges rule differently from the not-too-dissimilar judges sitting in Plessy v Ferguson (which established the "separate but equal" doctrine permitting segregation). What the jurists of theory and the politicians of practice worried over was a question of legal precedents, reinforcing the myth that law is based on the will, not of masses of people, but of individual judges. Because it constantly refuses to examine anything but accomplished facts, legal theory becomes synonymous with existing law, and what exists is merely a culmination of what has previously existed. The will does not derive from reality, but from previously defined categories and relationships which are circular, and may therefore simply be plugged in to achieve the desired result.
An oft-repeated aphorism is that we have a "government of laws not of men." Disregarding for the moment the fact that men make laws—which, claims to divine guidance notwithstanding, reflect their own biases—what kind of society is it that claims people exist for law rather than law for people? The servant has become the master, and the creator the slave. As commodities in capitalist society begin to be produced primarily for exchange, so law ceases to be subject to human regulation and instead subjects them to regulation. Along with this transformation of law goes the abstraction of legal ideals from reality and their becoming less real the more they become ideal. The Bill of Rights, appended to a conservative Constitution as a result of a political struggle, guaranteeing the right to freedom of speech and to keep and bear arms, has become the means by which speech is silenced and people deprived of the right to revolt. Increasingly, the reality of law contradicts its ideal; increasingly they are polarized.
Contradictions in society between what is possible, or ideal, and eventually what is necessary, or real, makes all legal ideals suspcct, producing thereby a basis for making reality ideal, and the ideal part of reality. However, neither the ideal (de jure) nor the real (de facto) law is neutral, as it claims to be, but is largely directed by the crises of the society in which it operates. Contradiction in soci-
etv affects not only its basic economic tendencies, but gives rise to a halting effect throughout, undermining and making clear the inability of any part to function unless the whole is reorganized. When the social institutions of feudalism began to take on a dual character, part feudal, part capitalist, the law reflected these cortradictory patterns. and legal institutions became a place where competing class forces appealed to establish their respective powers. In a period of social revolution, law, along with other social institutions, mimics the fundanental changes taking place in the mode of production and exchange. All these institutions, however, are prone to lag behind
Gateway to the Fort Dix, N. J., stockade.
Photo: David Fenton/LNS
changes in the mode of production and distribution, and evolve more unevenly, thereby necessarily coming into contradiction with the changing forces of production. Moreover, because these institutions only imperfectly mirror productive relationships, and are more subject to human will, they must also comc into contradiction with themselves.
The emergence of new institutions out of antedated and excrescent social forms is part of every revolutionary process. Law in the present period increasingly demonstrates a dual character similar to that in the transition from feudalism. It is affected by the necessity for a new form of social relations as a result of what has become possible due to the changes in the mode of production and exchange, but which is made impossible because of their private ownership. Law under capitalism, as feudal law, has been unable to plan or direct its development; it has had to be elastic, but firmly resists change in the most basic aspects of property relationships. The requirements of expediency and order thereby come more and more into opposition with those of law. The lawyer increasingly looks like a client. The abolition of poverty, which ought to be easy for the United States, becomes more and more difficult. Public policy has two faces, as does jurisprudence, as does legal practice, as does the supposed universality of due process, corresponding more and more to the two major classes of modern society.
Legal institutions, however, are so constituted as to predetermine the legal part of the battle. Law affirms both war and the principles of the Nuremberg judgments; the law of leaseholds includes the right of the landlord to usurp the tenant's rent and the right of the tenant to withhold it under certain circumstances. These apparent contradictions are not really in the interest of the tenant or the war-protestor, but in a particular class interest in maintaining order. By withholding rent, the tenant forces the slum landlord to renovate, which partially eases tensions, raising the value of the property and thereby the rents charged not only in slums but in more habitable housing as well, benefiting primarily the larger, wealthier landlords. At the same time, to the chagrin of landlords
everywhere, the new legal right may lead the tenant to demand the right to adequate housing for all, a right which the law cannot grant as long as land is privately owned and developed, social planning is nonexistent, and millions are too poor to afford privately owned land. The law is both hangman and priest, judge and prosecutor, and protector only of the rich, while it pretends to protect all class interests. Thus, law conspires against order and law and order together conspire against real social change. When this becomes known law brings about its own dissolution by its normal activity.
The dialectic of law and order, of violence and passivity, liberalism and fascism, coercion and cooptation, is the most distinctive characteristic of the legal order of modern monopoly capitalism. Yet it is precisely this schizophrenic nature which makes the continued existence of this social order impossible and contributes to its ultimate defeat. As one side calls increasingly for order and the other for justice, it becomes evident that order entails a
different kind of justice, and justice a different kind of order.
Since law is produced by conflict arising out of contradictory social relationships, law will continue to exist as long as social classes exist. In a period following social revolution, law may become useful and socially creative when used by the working class state in destroying all class privileges and immunities including its own. Law can assist a general campaign against racism, national chauvinism, the oppression of women, thus becoming a weapon against itself, and the things it always promoted. When the modern socialist state, also a reflection of the existence of social classes, ceases to exist as such in a period of international reconstruction, law becomes chiefly administrative law, which is more susceptible to decentralization. It then must return to a form of rule by custom. But until the underpinnings of conflict are eliminated. that is, exploitative and oppressive conditions which daily regenerate a de facto need for state power, there can be no elimination of law nor can there be any real equality before law. Once there is real equality, there is no need for law.
Reprinted and distributed by the Radical Education Project with the author's permission.
The cover is a pen and ink drawing by the German artist George Grosz from the collection Ecce Homo (Behold Man!). In 1923 action was brought against the artist and Ecce Homo, for allegedly defaming public morals, corrupting the inborn sense of shame and virtue innate in the German people. Grosz was found guilty and fined 6000 marks; 24 plates of the collection were confiscated and destroyed. (Thanks, LNS)
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Women's Servitude Under Law — by Ann M. Garfinkle, Carol
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legislation, by Joan Jordan (25$) A Divorce Trial in China — by Felix Greene (15$) Day Care — Who Cares? Analysis of corporate and government plans for our children, by Vicki Breitbart (20$)
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1 Jonathan Swift, Gulliver's Travels. New York: Washington Square Press, i960 (1726), p. 248.