Complexity and Contradiction in the Legal Order: Balbus and the Challenge of Critical Social Thought about Law

Abstract

The theory of law in capitalist societies set forth by I. D. Balbus (The Dialectics of Legal Repressions: Black Rebels before the American Criminal Courts, New York: Russell Sage Foundation, 1973) is reviewed & criticized. Balbus compares legal system behavior in major riots, minor riots, & nonriot conditions, & in various cities. On this evidence, he rejects both the liberal model of law as punishment of individual violation of norms, & the Hobbesian theory of criminal justice as serving simply to repress dissent & rebellion, since the system, in fact, imposed disproportionately low sanctions for crimes committed by rioters. He stresses the importance of the need for legitimacy in preventing the state from serving as a pure instrument of class repression in a capitalist society, despite the class conflict he believes is present. A more carefully specified analysis, free of Balbus' confusion of formal & substantive aspects of law, stresses two aspects of the legal system: its autonomy, & its contribution to community through conflict resolution. Balbus agrees with instrumental Marxist or Hobbesian theories in seeing the legal system as destroying community, but with liberal theories in regarding the legal system as autonomous. A fourth viewpoint is also definable: romantic informalism, ie, seeing law as the sole barrier to liberal social values. In the construction of a realist theory of law along Balbus' lines, the character of law as mediating between reality & ideal by itself being implicit social criticism, is significant. Public interest law illustrates this tendency, & also the role of law in maintaining capitalist societies. In Commodity Form and Legal Form: An Essay on the "Relative Autonomy" of the Law, Isaac D. Balbus (U of Illinois, Chicago Circle) offers an outline of a Marxist theory of law. The foundation of this theory is analogy between the relative autonomy of law & the relative autonomy of commodities & commodity prices. Commodity form implicitly mystifies humans by containing, yet concealing, labor. In the same way, citizenship mystifies humans by both containing & concealing their involvement in politics. Law does not preserve community or individuality, but only individualism as found in commodity exchangers. The attitude taken toward law in capitalist society can be seen as a form of fetishism, embodied in such remarks as "If we didn't have the law everyone would kill each other." Both cases reflect a common semiotic process in which the representation transforms what is represented into a false image. 1 Figure. W. H. Stoddard.