Although ideology is not purely ideational and discourses are material social facts, law is more than a codification of social contract ideology. No theorization of law would be complete without an account of the institutional arrangements, artifacts, and practices associated with its material existence. Yet, for all the Marxist analyses of contracts and law that I have read, I have not encountered one that thoroughly interrogates the significance of the written record, or juries, or the presentation of evidence.
The practices of modern legal institutions are based on the same complex of positivist/enlightenment thought (including the ideology of progress) that pervade other modern social institutions. In fact, the barrier between law and various human and natural sciences is quite permeable. In many ways it could be said that law acts as an arm of science. Not only are scientific procedures used to elaborate and clarify evidence (DNA testing, ballistic analysis, drug screening, etc.), but the courtroom is an important arena in which ideas about the limitations of human knowledge and perception, the validity of various forms of evidence, and the intersections of social deviance and free will are worked out, refined, and transformed.
More than this, one must look at the ultimate goals toward which these legal practices are oriented. It is not merely the enforcement of contracts and the preservation of the division of labor. The governmental impulse to reform and rationalize all aspects of human life is absent nowhere, least of all here. Law is used as an instrument of Benthamite cost-benefit analsyis. Individual pleasures and collective goods are weighed against personal limitations and injuries (e.g., the detention of a single person for the good of the community).
According to the ideology of progress, continually improved legal procedures are a means by which society can be ordered in the most beneficial and efficient way possible. For instance, an entire spate of laws relating to marriage and childcare seek to impose normative representations of family life, or acceptable variations thereof. Psychological categories of sanity and criminality are used to determine who may exercise the full rights of citizenship, and correspondingly be held responsible for breaches of law (in other words, what “deviant” behaviors will prevent one from fully participating in the social contract). Matters of individual consciousness and belief are carefully, almost mathematically, weighed against the imperatives of social welfare (the need for a proper education, access to healthcare, etc.). From the point of view of progress, it is the rationality of law, more than anything else, that can perform the cost-benefit analyses (under a guise of neutrality and abstraction) on which governmentality rests.
Going hand in hand with this liberal, reformist impulse is a tendency to objectify and discretely measure ambiguous concepts like pleasure and pain. Mental anguish and psychological disturbances may be awarded monetary compensation. Pleasure, belief, and “lifestyle” are components of cost-benefit analysis. (Note, for example, that Heather Mills was awarded so much money in her divorce from Paul McCartney, simply because she was accustomed to a certain lifestyle, and it would diminish her pleasure and personal fulfillment if she were not able to maintain that lifestyle.) Of course, absent from this calculus are any notions of the potential value of suffering or pitfalls of pleasure, both of which are important in a variety of pre-modern value systems. **I don’t know that Marx would view this as anything more than the natural course of evolution, owing to the fact that his own thought was often pervaded by the ideology of progress. It is interesting, in this regard, to draw upon more “deconstructivist” scholars such as Talal Asad for detailed analysis of these changes.
Finally, the sanctity of the written word in legal proceedings, while undoubtedly following from positivist ideology, also firmly establishes legal institutions as bureaucratic networks, dependent as they are on records. The use of written documents in court, for example, captures life in the “outside world,” as well as real-time events in the courtroom, and brings them into the web of institutional objects, which can be circulated, copied, embedded in other documents, and appropriated for other purposes (like the common practice of referring to prior cases).
So, then, what makes legal institutions different from other bureaucracies? What distinguishes the law from government agencies of various sorts? The answer to these questions will be the subject of my next post.
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