Like most socialists, I follow the Sard, who said that he didn't like to throw stones in the dark.  That is to say, he always needed some opposition to stimulate his thinking about situations, philosophical problems, historical controversies, or political methods.  A few recent arguments with people who are wrong, prompted a few thoughts-in-progress about how to analyse the conjuncture.

I.  The primacy of politics.  This doesn't refer specifically to the Leninist thesis of the primacy of politics which has a general application; rather it refers to the dominant level at which the major social antagonisms are going to be fought over and resolved in one class or another's favour in the coming years.  But in what sense?  One perspective I have encountered is that the weakness of the trade unions is such that if there is going to be an upsurge it is going to happen first through a general political radicalisation, and only thereafter produce a revival of working class organisation.  I don't think such sequential schemas really respect the actual pattern of struggles.  Look at the relationship between the anti-war movement over Gaza, the student occupations and uprising over fees, the germinal feminist revival, and the very large but bureaucracy-led trade union protests and struggles.  I think what you find is not a sequence of 'first politics, then economics', but rather the unpredictable outbreaks of struggles on various levels of the social formation consistent with a system going through organic crisis, each having a reciprocal effect on the others.  The sense in which politics is dominant is that it forms the edifice within which economic and ideological struggles take place, securing their unity and coordination, determining their tempo and efficacy.

Of course it's always true that in the last analysis politics is decisive.  But it's not true that in every conjuncture political struggles are dominant.  The dominance of politics today derives from the centrality of 'austerity politics' as a spatio-temporal fix for capitalism's woes, conducted through the state and centred on the neoliberal reorganisation of the public sector and welfare state.  Mervyn King recently argued that in the short run it would necessary to restrain spending cuts, but in the long run there had to be a drastic rebalancing of the economy away from consumption and towards investment - in other words, put as much of the country's wealth as possible in the hands of the rich and hope they will put it into circulation as capital.  This could only be achieved through state action, which has to be mediated through the political parties and their relationship to social classes.  Therefore, politics predominates.

II. The crisis of authority.  I have referred to an organic crisis.  According to Gramsci, a crisis of capitalism becomes an organic crisis when it affects the state and its hegemonic apparatuses.  And that is exactly what has happened.  One of the significant insights of the state theorist Claus Offe was that this tendency for capitalist crises to become political crises is built in to advanced capitalism insofar as it has developed an expanded political administrative apparatus to cope with the dysfunctions of production and protect its legitimacy.  As soon as there is a serious crisis, not just a recession but something that puts into question whether the system can reproduce itself, it is more likely to radiate into the state and from there into every aspect of production, politics, and ideology, etc.,  reached directly or indirectly by the state.  This is just a tendency, not an inevitability - but for reasons mentioned above, the crisis has certainly reached the state.  The question is how far advanced this process is.

The British capitalist state has always been one of the more stable of its type.  Unlike continental rivals, it has not suffered revolution, invasion, occupation or defeat to a militarily superior rival for centuries.  Its colonial losses were, it is true, considerable.  And that loss of global power and prestige has been a source of constant axe-grinding on the right, the prism through which Northern Ireland, the Falklands and even Europe have been perceived.  But the adaptation was managed without disrupting the continuity of the state.  This matters.  It also matters that the British state is still, for all its losses, a leading imperialist state with considerable global advantages, aloof from the eurozone while enjoying the benefits of EU membership.  This confers a degree of independence of action not available to, say, Greece or Spain.  This government can, if it wants to, increase spending to temporarily dampen a crisis.  It can nationalise a company if it is too important to leave it to the market.  It can bring forward infrastructure investments.  It can even selectively increase benefits, or make certain tax concessions.  As of now, the government and the Bank of England prefers to print money to stimulate lending, which has certain distributive consequences, but basically it has a range of options.   The state also has a system of violence that, despite acute breakdowns, has effectively reinforced consent throughout its long duration.

Nonetheless, the concept of a 'crisis of authority' is a good criterion of historical analysis against which to measure the stability of the British state.  What does a crisis of authority look like?  One would ordinarily look for the withdrawal of consent on the part of the masses, the  mobilization of large subaltern classes against the ruling class, and the detachment of social classes from their representative parties.  Some of these tendencies are visible in the UK today.  There is, first of all, no doubt about the de-alignment of social classes from their representative parties.  This is a secular tendency that is becoming acute due to the successful rollback of representative democracy by means of neoliberal policy.  (Chapter One of The Meaning of David Cameron outlines some of this.)  Second, in some complex ways, consent is being eroded.  Certainly, over the long term there has developed a nebulous and politically polyvalent sense of dissatisfaction with authorities, with officialdom, with the main parties, and with parliament itself.  This doesn't by itself amount to antisystemic feeling, nor is it proof of political radicalisation.  And not all institutions suffer from this general decline in respect.  Trust in the police is resilient, despite constant disclosures of corruption, racism, brutality and murders.  On the immediate questions of austerity and related policies, the balance of popular opinion is against the government - but not on all planks of its agenda, and not necessarily on the worst planks of its agenda.  It is true that any presumed 'consensus' is very fragile, but the support for punitive welfare policies has been quite high.  The current state of the Labour party is substantially responsible for this.  Moreover, the way in which the state can mobilise consent against the enemy of the month (just recently, they used the face of Abu Hamza to conceal the crimes against Babar Ahmed and Talha Ahsan, and it worked a treat) does not indicate that its legitimating resources are running dry.  This is related to the question of state violence which I'll return to.

Finally, what is the state of popular mobilisation?  In and of itself, it is impressive - student occupations and 'riots', Tory HQ smashed up, coordinated strikes in the public sector, mass marches encompassing the breadth and depth of the organised working class and its periphery, even a 1980s-style youth uprising against the police.  Yet these are notable for a) being episodic and apt to lose momentum very quickly, and b) being totally unequal to the problem, to the scale of the ruling class mobilisation and its goals.  The credit crunch came just as the British social movements were abating, the left was entering a vicious downswing, and the Tories were pulling themselves back together as a fit team to replace the bruised, tired, shat-on-looking New Labour cabinet.  The popular movements since the winter of 2010-11 have really been playing catch-up, and not actually catching up thus far.

Greece: that is a full-blown crisis of authority.  If the British state does reach that condition, it will be catalysed by outbreaks of social struggles which are not visible today, and not possible to predict.

III. Violence and consent.  It is a mistake to think that a turn toward greater violence on the part of the state is a sign of weakness, that it signifies a crisis of consent and thus an erosion of the civil society basis of the state.  Violence and consent are not separate, opposed quantities; violence is one of the main ways in which consent is secured.  Take an example.  The British police, like no other police force, has embraced the tactic of kettling.  It works in three ways.  First, it is managed violence: it creates moving frontiers where a confrontation with angry crowds can happen within a predictable range of circumstances, with police able to concentrate their forces at certain points when necessary and according to the geographical terrain already incorporated into the kettling plan.  Second, it is biopower: it acts on the fact that people have biological needs and tendencies, that they need to excrete, that they become cold and tired, that they have caloric requirements which, unsatisfied, leave them physically weak and vulnerable.  Third, it is ideology.  The very act of 'kettling' people communicates that they are dangerous criminals, if not bestiary.  It also creates the scenario in which this point can be 'proved'.  Notwithstanding the problems it has had in the courts, this has been one of the most effective means of shutting down protest movements threatening to gain momentum.

  In this tactic, coercion and consent, violence and ideology, are combined.  The 'rule of law' is the dominant form of the dominant ideology, the main area in which consent is organised; and it is precisely through violence that it is materialised. Thus, it isn't that the state turns to violence when consent has been exhausted, but rather that it must reorganise violence in the constitution of social categories (race, culture, nationality, citizenship, criminality, subversion, entitlement, rights, etc), to found consent on a new basis.  It is therefore mistaken to see violence as 'making up for' a lack of consent, as a factor merely held 'in reserve' for when consent erodes.  Recall Gramsci's metaphor: "State = political society + civil society, in other words hegemony protected by the armour of coercion".  This quite an interesting topography.  Rather than the core of the state consisting of repressive institutions, special bodies of armed men, etc., which is protected by the outward layers of civil society, the repressive institutions form an integument shaping and protecting the flesh of the body politic.  One way to read this is to relate it to the concept of hegemonic practices in which the dominant classes attempt to organise a cross-class coalition in support of the historic goals they have set themselves.  It would be mistaken to see hegemony as a state actually achieved for most of the time; it is best to see it as a tendency guiding the organisation of class domination in a capitalist democracy.  When some form of potentially hegemonic coalition is achieved, there is always an excluded remnant of classes and class fractions that aren’t incorporated.  In a genuinely hegemonic situation, the excluded remnant is an easily policed and suppressed minority; most of the time, it is actually a majority that must somehow be disorganised, stratified and divided.  The role of violence in this situation would be prove the implausibility of resistance to both the dominant bloc, whose unity is thereby secured, and to the excluded, whose acquiescence is thereby gained.

  One aspect of the complex political and ideological mix that was Thatcherism was its attempt to re-found consent on a new populist right basis, incorporating sections of the skilled working class alongside the petty bourgeoisie and big business in a new dominant bloc.  Rather than 'from cradle to grave' provision, the traditional state philosophy of Labourism, 'the discipline of the market' became the new basis of consent.  If the new regime was more violent, this was not to 'make up for' a lack of consent, though the regime was narrower in its social basis and had of necessity to disorganise a much wider coalition, but rather because the new regime had to simultaneously demolish the bases for militant leftist politics in order to viable, and construct a new form of consent based on penalising the poor.

  The purpose here is not to deny that the ruling class is weak and fractious, and the social basis of the dominant bloc narrowing dangerously from its point of view.  That is evident in the pathologies already mentioned, the degeneration of the main capitalist parties, the decline of legitimate institutions, and so on.  Rather, it is to say that an escalation of violence is not in itself indicative of weakness.  So long as the state’s violence is actually efficacious in securing consent, and disorganising the popular classes, and as long as it can be coupled with selective material incentives which are in themselves perfectly compatible with an overall increase in the rate of exploitation and a long-term material loss for most of the population, then it need not be.  And the reason why it has become necessary to Defend the Right to Protest is that this violence is proving extremely efficient in the short run.

IV.  The disorganisation of the popular classes.  Thus far, there has been no general unity on the immediate goals, tactics or politics of an anti-cuts movement, nor has a viable compromise between the rival perspectives been possible.  One result of this is that there is a vacuum in which fragmented groups and platforms are capable, at certain junctures, of projecting influence well beyond their real size and social depth.  We have seen this with UK Uncut and, in a different way, Right to Work; we saw it with various small, radical, student and education groups during the student riots; arguably, a similar type of dynamic was visible in last summer's riots.  (In localised situations, even smaller formations can acquire a significant role: eg, the campaign against the closure of Chase Farm hospital is now most visibly conducted by an infinitessimal sect, due mainly to the seeming collapse of the Save Chase Farm group since Nick de Bois was elected.)  The result of the vacuum is that adventurism and stunts acquire an exaggerated importance - not that I'm remotely snobbish about these things, but they can only advance us so far, and they tend to dissipate as quickly as they take off.  This state of affairs is a register of failure, to be sure, but it's not just a failure of initiative and leadership on the part of the radical Left.  It's a measure of the disorientation and demoralisation of the most advanced, radical workers during the New Labour era, and particularly in the wake of the worst global crisis since the Great Depression.

  In contrast to most continental equivalents, where there has been a left breakaway from the major social democratic formations fusing with Communists and the far left, resulting in some degree of electoral realignment, the political opposition to the Tories is hegemonised by the Labour Party in England and to an extent in Wales.  This is all very fragile.  George Galloway's breakthrough in Bradford was not a miracle; it reflected a wider volatility, a willingness to suddenly, sharply swing behind alternative reformisms where they appear to be viable - the SNP in Scotland, Caroline Lucas in Brighton, Galloway in Bradford, possibly Plaid Cymru in Wales, and it may well have been Kate Hudson or Salma Yaqoob next.  There is nothing inevitable or secure about Labour's electoral and political dominance in the working class, or the absence of an alternative.  The lamentable performance of Johann Lamont in Scotland seems to ensure that Labour will not recover there for some time, if it does. 

  Nonetheless, there is something different about the UK in this respect, which makes realignment a lot harder.  First of all, no left-wing opposition developed and split away from New Labour as it implemented neoliberal policies, because the defeat of the Left after 1985 was so severe and sweeping that the Blairite leadership was able to win acquiescence for the main lines of its policies in advance.  Even if the concrete realisation of those lines (tuition fees, PFI, etc) produced dissatisfaction, there was no underlying precept on which opposition could be founded.  Second, even when an issue (the Iraq war) did arise which could potentially divide the Labour Party, it did not.  Only George Galloway split away, because he was forced to rather than because he wanted to.  This is partly because the Labour machinery had been so tightly sewn up by the Blairites that an internal opposition was almost impossible to mount; most people left the party rather than fight within it.  Faced with this, there was no obvious basis for the small number of left MPs to lead a split-away, even if they were brave enough to do so.  The result is that the radical left formation that did emerge, Respect, made much of its small, locally concentrated forces, but was inherently limited compared to its most of its equivalents.  The SSP... oy.

  The only serious, national resistance to the Tories' programme is coming from the trade unions.  It is not being led by the rank and file.  Rather, the rank and file pressures the union bureaucracy for action, but remains dependent on the bureaucracy to actually take the initiative.  The shop steward movement hardly exists today.  It is not just that it is numerical depleted, both in absolute terms and relative to the unionised workforce.  It is that the role of stewards has changed dramatically, so that they end up as case workers rather than the people calling 'all out' when an issue arises.  So there isn't a basis for a rank and file movement - that would have to be painstakingly constructed in and through struggles.  Nor is there a big battalion of militant workers ready to take on the government by itself.  No one has the confidence after decades of neoliberal assault and diminishing strength and influence, to risk everything in a big set-piece dispute with the government.  This isn’t the 1980s but, alas, everyone still remembers the Miners.  The result is that strikes are seen by the union leadership as a bureaucratic manoeuvre to force the government to soften its bargaining stance. 

  This brings us back to the dominance of politics.  The unions, despite their relative historical weakness, have two potential significant strengths.  One is that their private sector membership is concentrated in clusters of high value-added parts of the economy.  The workers thus covered have considerable strategic power, as they can cut off crucial flows of surplus value very quickly.  The second, more significant, is that most of their members are based in the public sector and exercise real political power as a result.  It is not just that they can shut down vital processes in the extended reproduction of capital, thus indirectly disrupting the flow of surplus value; they can create a crisis for the state and for the government of the day.  Whereas the government can take a certain tactical distance from private sector strikes (‘hope this is resolved expeditiously, both sides need to get round the table’ etc.), it is directly implicated when nurses, teachers, civil servants and rubbish collectors go on strike.  This gives the unions the potential, and only the potential, to ascend beyond the ‘economic corporate’ mode of organising.  They are historically narrowly based, yet their immediate problems – pension and pay cuts, longer hours, etc. – can be swiftly and logically linked to the problems of other sections of the working and even middle classes.  They can create a broad system of alliances by fusing their struggles with those of students, pensioners, communities losing their hospitals and council services, and non-unionised workers suffering low pay and insecure work. 

  Recently, a motion was passed at the TUC supporting a general strike.  In its core, it would be a coordinated public sector strike with some private sector support.  But it could attract the wider support of social movements and those directly affected by cuts.  I note that while most people won’t support a ‘general strike’ call, according to polls anyway, most Labour voters will.  This is very interesting since it suggests that Labour’s voters aren’t necessarily persuaded by the leadership.  It suggests that there’s a section of the working class, I would guess including those who are not unionised, who belong to the most precarious, low-paid or unemployed sections of the working class, which is apprised of the seriousness of the situation and ready for a fightback equal to the threat.  For this to materialise, the ‘general strike’ call would have to be used as a lever to mobilise not just the rank and file of the unions but the most left-wing workers in general, and those involved in the social movements, while pressuring the union leadership into action.  Nothing about that is easy, as there will be strong counter-pressures coming from the Tories, and the press (the recent Hillsborough revelations about the collusion between Conservatives, the police and the media rather make the case for ‘Ideological-State Apparatuses’ in a nutshell).  But there is little else that is concrete, in the way of sustained resistance, to organise around.

V.  Petty Caesarism.  The consensual basis for the British capitalist state has been narrowed over the long-term by the  hollowing out of parliamentary representation inaugurated by neoliberalism, combined with the sharpening of social antagonisms, above all class antagonisms.  While social movements of one kind or another have become a more frequent feature of the landscape, there is a crisis in party-political organisation.  The Tories and Labour have been undergoing a long-term decline, and now the Liberals are likely to be reduced to a small rump (even if the exaggerated interest of media and activists during their spell in government persuades them otherwise).  The dominant political parties are poorly rooted in the population, and lack popular trust. Alongside party membership, voting levels have declined, particularly among the working class.  One effect of this during the crisis has been the manifestation of petty caesarist tendencies.  If, as Gramsci said, all coalitions are a first step in caesarism, the imposition of a Tory-Liberal coalition by civil service initiative is a typically British ruling class version of the type. 

  The decline and fragmentation of the traditional Right is an important, under-examined part of this situation.  The Conservative vote has gone through a long, spasmodic period of degeneration since the late 1960s, punctuated by the collapse in 1974, the partial resurgence under Thatcher, the crisis at the tail end of Thatcherism deferred under Major and returning with a vengeance after 1992.  This reflects not just a decline in traditional right-wing values, but the erosion by attrition of the social basis for even ‘secular’ Conservatism.  Moreover, several crisis points have arisen to threaten the traditional ‘British’ basis of Conservatism – the weakening of the Union, and the integration into Europe.  The Tories are badly placed to handle these crises, and the result alongside a sharp decline in the Tory vote is a fragmentation of the right.  UKIP is ascendant not just as the Thatcherite pressure group that it once resembled, its ‘Save the Pound’ stickers defacing Westminster lamp posts, but as potentially a serious challenger to the Conservatives based on significant sections of the Tory middle class and medium-sized capital.

  One outstanding fact about the British situation is that while racism remains at a historically high level, a result (as I have argued) of extensive state intervention to racialise social conflicts, the government would struggle far more than the last Labour government to use this advantage to re-organise its legitimacy in the crisis context.  In principle, racist paternalism would be one way to organise material incentives in a controlled way that reinforces the neoliberal accumulation regime and the attack on the welfare state.  Yet the Tories under Cameron are too hesitant and vacillating after years of being exiled as ‘the nasty party’, to really actualise such a strategy.   Another striking fact is that the far right, despite their surge over the last decade, never gained a foothold in the UK in the way that fascists in other European societies did.  Undeniably after Barking, Tower Hamlets and Walthamstow, the limit on the growth of the far right is primarily due to the successful model of antifascist action aimed at mobilising broad fronts to prevent and disrupt the local implantation of fascism.  The existence of other right-wing fragments ready to absorb Tory defectors is also plausibly a factor, although the past decade has shown us that it is quite possible for fascist and hard right parties to gain support concurrently.  But the effect of the current incapacity of the Right, coupled with the disorganisation of the popular classes, is precisely to reinforce the tendency toward petty caesarism.  The coalition government is an unstable combination, but it allows the leaderships of both coalition parties a degree of autonomy from their active base.  It renders acute the chronic insulation of parliament from the popular classes. 

  The final factor heightening caesarist tendencies is the division and uncertainty of the bourgeoisie proper.  They are not united by what to do about Europe, or about whether now is the time to start making the cuts, or about how deep they should be.  There is undoubtedly a significant section of bourgeois opinion that is gravitating toward Labour’s preferred solution of bringing forward spending now, and implementing the cuts later, in a way that is less egregiously offensive to working class interests.  In this situation, the apparatuses of the state itself – the higher civil service, the Bank of England, etc. – acquire an elevated role, and the parties of government enter a kind of coalition with them.

  Caesarism emerges because the contending classes have reached a stalemate.  What I referred to as ‘petty caesarism’, then, is just the expression of this tendency in a muted form: not exactly a total stalemate but certainly a state of disarray; polarisation but each side hesitating to enter the fray wholeheartedly; both sides almost running on empty.  One morbid symptom of this tendency is the emergence of rival hybrid forms of politics – ‘Red Toryism’, ‘Blue Labourism’ – in an attempt to short-circuit political polarisation and reconstitute the relationship between party and class.  When people say ‘no one voted for this, how do they think they can get away with it’, the answer is clear: caesarism in this case is a symptom of mutual weakness.  Yes, the ruling class is in crisis, yes it is divided and hesitant, yes it lacks political legitimacy; but as of now, its opponents are not in a better state.

1. that no social formation disappears as long as the productive forces which have developed within it still find room for further forward movement;

2. that a society does not set itself tasks for whose solution the necessary conditions have not already been incubated etc.

This is an amazing report from the Spanish miners struggle by The Guardian's journalist: 

 

The Asturian miners have embarked on a new 'Marcha Negra', a repeat of a famous action twenty years ago in 1992, when miners marched across the country to Madrid in defiance of job losses and cuts. Last night, the miners arrived in Madrid, surrounded by approx 150,000 supporters, about ten times the size of the reception in 1992. The Spanish media blacked it out, but it feels more like ostrich behaviour than effective censorship. This is coming alongside a fresh wave of cuts and VAT increases. Unlike in 1992, the government is actively broadening the base of social and industrial rebellion. 

 Peter Thomas, in his Marxism talk about Gramsci and the 99%, made a defence of the concept of proletarian hegemony against certain misconceptions that might put people off it. Pointing out that the working class is numerically and proportionately larger than ever, he suggested that the 99% was potentially the name for hegemony as a principle of unity, rather than as simply a form of domination: what we all have in common, despite our immense differences in identity, social category, occupational culture and habitus, etc., is that we are all exploited. This is what working class hegemony means in practice today. Not, generally speaking, the unity of a national popular bloc of classes under working class leadership: this becomes less the case as capitalist mode of production has entrenched itself, and thus simplified the class system in one sense. Rather, it means the dominance of the working class as the axis of our common exploitation and thus as the strategically privileged basis for organisation. The arrival of the Asturian miners in Puerta del Sol, site of the Indignado rebellion, could be the the sign and sanction of this hegemony in motion. The question, then, is whether Spain's heteroclite social and industrial struggles can be stitched together under the banner of the 99%.

The concept of 'racial formation' was coined by Michael Omi and Howard Winant, in what is really - despite its avowed distance from marxism - a Gramscian enterprise.  Although the authors focus on somatic racism, their arguments are relevant here.  Defining race as "a concept which signifies and symbolizes social conflicts and interests by referring to different types of human bodies" (and, one would add, cultures defined in a univocal, essentialist manner), they described racial formations as: 

"the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed. Our attempt to elaborate a theory of racial formation will proceed in two steps ... [W]e argue that racial formation is a process of historically situated projects in which human bodies and social structures are represented and organized. Next we link racial formation to the evolution of hegemony, the way in which society is organized and ruled. ... From a racial formation perspective, race is a matter of both social structure and cultural representation."

The work of cultural and ideological representation is done by 'racial projects'.  A racial project "is simultaneously an interpretation, representation, or explanation of racial dynamics, and an effort to reorganize and redistribute resources along particular racial lines".  Racial formation, then, is a conjunction of these various racial projects with the social structures (labour market hierarchies, criminal justice, educational selection etc) on which they act.

It was not long after the reality television show Make Bradford British was aired that George Galloway swept the bye-election in Bradford West by an overwhelming margin.  This victory was a long overdue rebuttal to the idea that the problems and aspirations of poor, working class areas like Bradford can be reduced to 'race'.  But the primary interpreters of the result in the media didn't see it that way.  For them, it could only be more proof of just how potent 'race' is as a determinant factor in people's behaviour.  'They voted the dreadful man Galloway in: Islam is more powerful than we thought.'  This is linked to two types of racial project, which I think are the dominant types in relation to British Muslims, and British Asians more generally.

The first is actually that produced in the Make Bradford British programme.  The title of the show connoted a racist precept - that is, an idea of Britishness as something that is disturbed by the presence of 'foreigners', racial Others.  The producers would claim, I imagine, that this is to misunderstand their goal; that their idea of Britishness is one of mutual tolerance, multiculturalism and respect, which extremists 'on both sides' would tend to threaten.  Such, indeed, appears to be the surface premise: the idea of bringing together diverse Bradfordians, from the racist copper, to the devout Muslim, and every shade of racist and racial subject in between, under the same roof.  And tolerance is not the most repugnant of misanthropic virtues, particularly when it is invoked as a shield against oppression.  However, whether the producers claim to have been aware of this or not, the very idea that Bradford needs to be made British is connotatively linked to an idea of British nationality as 'white'.  And the way in which tolerance is linked to this notion discloses the racist logic of tolerance in this case.  

If the explicit assumption is that 'divisions' arise from a lack of intimacy between different groups, the implicit assumption is that before the 'foreigners' there was a relatively stable British identity, which can only be restored through the domestication of these interlopers.  In this project, multiculturalism is explicitly embraced, even if the submerged logic tends toward integrationism; likewise, the projected resolution is consensual, organised around the sharing of experience and views, even if the hidden logic points to the need for coercive programme of 'British values'.  The meaning of race disclosed here is purely discursive; it has no positive reality either as a somatic fact or as a social structure, even if at root there may be 'legitimate grievances' which are crudely taken to be erroneously understood in the language of race.  This is a liberal, managerial racial project.  And I will leave it here, because this one is dying.

The second type appears in David Starkey's comments on the recent case of a gang of British men, of Pakistani origin, who were convicted of grooming children.  Starkey argued that this was a reflection of values inculcated in "the foothills of the Punjab or wherever", that it was a case of men who had never been taught that using girls in this way was inherently wrong, and who needed to be "inculcated in the British way of doing things".  (Yes, Britain, where children are happily unmolested except by foreigners with different ways to our own.)  Don't imagine that Starkey represents an insubstantial minority.  At the Times debate where he made these comments, and where Starkey was expertly trolled by Laurie Penny who called him out as a racist bigot, there was clearly a fairly substantial sentiment in favour of Starkey.  His supporters on this occasion included the dim libertarian ex-RCPer Claire Fox, who dubbed Penny a disgrace to women and the Left for not joining the kulturkampf against those whom tabloids have dubbed "Asian sex monsters".  

In fact, anyone who has followed the coverage knows that Starkey is not in this case pushing at the boundaries of acceptable discourse.  People like former Labour MP Ann Cryer, who began campaigning over 'Asian sex gangs' in 2000, are complaining that the police wouldn't take the problem seriously due to 'political correctness'.  (In fact, the trial seems to have disclosed that the girls were not taken seriously in their complaints because they were poor, from broken homes or care, and would not be considered credible before a court: an old story about misogyny, not political correctness).  Starkey's comments, malicious as they are, are in concert with the dominant tone of the media's coverage.

So, using the idiom of culture and nebulous 'values' (because apparently you have to subscribe to a nationally specific yet extremely vague set of 'values' to know that it is wrong to use children for sex), this project specifically rejects multiculturalism and the rhetoric of tolerance.  The explicit logic is coercive and punitive, not consensual.  Increasingly, since the 'profile' of the 'Pakistani street groomer' is being developed by police and popularised by the mass media, this means racial profiling and extended state surveillance and intervention into the lives of one million Britons.  But again, there is a slightly deeper logic in the call for an enforced pedagogy in the "British way of doing things".  For the suspects in Rochdale were all, bar one, born, raised and socialised in the United Kingdom.  Their life experiences, education and work were not those that one would receive in "the foothills of Punjab".  Therefore the assumption that their 'values' would reflect those of the Punjab, leaving aside the scandalous way in which those 'values' are being depicted, tends to shade into outright biological racism.  Otherwise, it segues into a cultural essentialism so deterministic that it makes no difference.  Social structure appears here only as an appurtenance of race.  And the implication of such a stance is that even assimilation is not possible, that coexistence is only possible at great distance.

So, here a set of antagonisms prevalent throughout the social formation - those engendered by patriarchy, poverty, the social care system, the depletion of public resources, policing, and the precarious existence of working class girls arising in that context - has been represented and signified through the bodies of 'Asian men' or 'Pakistani men' to create a racial meaning and struggle for a particular kind of racial solution.  This brings us to the role of racial formation in hegemonic practices.  Hegemony is not typically a state sustained over a long period of time, but rather a state which is constantly worked toward and worked on.  It signifies not a normal condition of rule, but an exceptional state of dominance in which a class or class fraction has assembled a broad social alliance along multiple axes of class, oppression and identity, behind a certain historical mission.  It involves not just the transformation of the 'common sense', as it were, but also the profound reorganisation of political violence and terror.

There is a tell-tale dimension of this Rochdale case referred to by Judith Orr here, which is the introduction of a racialised neologism in the context of moral panic.  In Policing the Crisis, Stuart Hall et al described the origins of the term 'mugging', which was introduced in the British popular press from the United States in 1971-2 to refer to an apparently new criminal menace which was strongly associated with young black men.  In the period 1972-3, there appeared in the press to be a 'mugging epidemic', connotatively linked to the 'ghetto', the black criminal 'underworld', etc etc.  There was, then as now, a totemic case, that of the violent robbery of a man in Handsworth, Birmingham.  'Mugging' was not a specific crime, but rather linked a number of types of criminal action to a set of racial connotations.  The media led with this, arguing that the police and courts were overwhelmed with this new type of crime, which was not new, and not significantly increasing in frequency.  And this provided the imaginary material for the New Right's articulation of an authoritarian-populist agenda.  

So today we have the invention of this term "street grooming" or "on-street grooming", which does not signify a specific criminal offence, but which is laden with racial connotation as it is used almost exclusively in association with sex crimes committed by 'Asian men'.  That's why statistics on this are so difficult to obtain and unreliable: the police actually arrest, charge and prosecute people accused of 'street-grooming' under a wide variety of offenses.  The main way in which newspaper reports get round this is to look at police figures to do with the detection and prosecution of extended gangs involved in sex with children.  This, they say, shows a greatly disproportionate cohort of men of Pakistani origin.  This is very much like the case of 'honour crimes', which reclassify existing crimes according to a racialised code.  Thus, according to this logic, you'll probably find that the overwhelming majority of honour crimes are committed by Muslim men, because you've re-defined the crime (say, the murder of family members) in such a way as to focus on one aspect of it, and thereby ignore most of it.  The same is true of the 'grooming' panic, which seems to be a stronger candidate for a racialised moral panic, where the resonant racist imagery of brown-skinned men preying on white girls offers a very potent way of turning the real experiences of exploitation and abuse into a language of authoritarian racist crackdown.

It is also connotatively linked to the ongoing mythos of British decline, something which reactionaries date to Indian independence and the arrival of Windrush.  In the context of real declines (in relative income, living standards, social services, employment, job security, infrastructure, pensions, etc.) and amid a turbulent and seemingly endless crisis, there is more than enough material, already saturated with racial meanings, to make this articulation work.  This would be linked to a project of British revivalism, already in the works: the 1945 reenactment society has been doing its best drape everything both literally and figuratively in the Union Jack, even as the union threatens to come apart.  It would obviously be linked to a belligerent europhobia, particularly as the EU looks like its leadership is barely capable of survival.  It would ally, as its pivotal class alliance, the most 'eurosceptic' and hyper-Atlanticist sectors of the bourgeoisie, over-represented in the ownership of the media, with the most nationalistic sectors of the petty bourgeoisie.  

Yet, for all its resemblances to early Thatcherism, it would have to be different in several particulars.  Neither the individualist rebellion against the nanny state or union bosses, nor the aspirational politics sharp-eyed and ruthless social climbing, has escaped the crisis without some stigma.  If such a project were to reach into the working class, its material substratum could not be a promise of rewards unleashed by financialisation and good pay for loyal, skilled, non-militant workers.  Rather, it would seem to call for a certain paternalistic turn - which is by no means incompatible with privatization and an increase in the rate of exploitation.  It would demand carefully targeted material concessions through the state, perhaps coupled with a punitive strike against those on the wrong side of respectability, such as single mothers and immigrants.  If and when David Cameron is deposed from the Right, I would strongly expect the putsch to be organised around these sorts of policy thematics, and it would be tailed relentlessly by 'Blue Labour'.

However, although within a racial formation a single racial project tends to be dominant, it is not exclusively or necessarily so.  The task of the Left is to link a politics of militant racial egalitarianism to the language of everyday experience.  This becomes much easier in the context of rising class and social struggles in which the appeal for unity has a clear experiential basis.  We can see from the example of antifascist organisation how the activation of concrete forms of multiracial unity can pose a different meaning of race.  We also saw how anti-racism formed the dominant culture of the antiwar movement, despite a reasonably large antiwar sentiment on the Right, and provided a counterpoint to the demonisation of Muslims.  So, if the dominance of a given racial project is decided by the types of situation that are popularly understood as 'racial', and if the Right tends to have the whip hand here, there are clearly resources on this front for counter-hegemonic mobilisation.

What follows, then, is one attempt to navigate beyond this impasse.  I hasten to say that this is intended as the beginning of an argument, since I can't claim to have resolved every tension or lacuna in my position.  I will also say upfront that it tries to solve the problem in a largely formal way with only incidental references, by way of examples, to the kinds of historical data that will stand up the argument presented here.  That is mainly to keep the argument under some sort of control.  Doing the subject historical and historiographical justice would require a book, and I don't know how to write one of those.

There are those on the Left who adopt a version the law-violence dichotomy.   E P Thompson, as I mentioned in a previous post, was one of those.  In a concluding discussion in his book, Whigs and Hunters: Origin of the Black Act, Thompson acknowledges the structural selectivity of law, asserting not merely that it has been used as an 'instrument' by the ruling class, but that its very form has been such that it tends to produce outcomes favourable to the reproduction of class domination.  Nonetheless, he reaches this striking conclusion in defence of the 'rule of law':   

In assessing this, I think we have to take into account the related contexts of Thompson's theoretical commitments and his politics of socialist humanism.  In his famed attack on Althusser, The Poverty of Theory, one of the points he made was that law did not politely keep to one level, but could be found busily constituting and mediating conflicts at every level of society.  He thus rejected the base-superstructure metaphor, and particularly the althusserian version which held that the different levels of this structure were 'relatively autonomous'.  The same argument can be found in Whigs and Hunters, which draws out what is intended to be an implication of this: law is not merely a superstructural imposition 'from above', but a medium through which the oppressed and exploited conducted their struggles.  Thus the ideology of the 'freeborn Englishman' could be estimated an excellent one, the 'notion' of the rule of law and its supposed equity an unqualified human good.  The challenge was to compel the law to live up to its promise, and the ultimate condition for its fulfilment was the abolition of the class systems which perverted and distorted the law.

Politically, this commitment was related to Thompson's rejection of Stalinism.  It requires no great stretch of the imagination to see why a certain radical English liberalism would be a comfort in the face of 'totalitarian' Eastern tyranny: the gap between 'arbitrary power' and 'the rule of law' seems quite obvious when separated by an iron curtain.  (I don't suggest that Stalinism was actually characterised by an absence of the 'rule of law', but I think that's implicit in Thompson's view, just as it is explicit in many marxist accounts of Nazi rule).  Of at least equal import, though, is his political disappointment, his retirement from activism by the late 1960s, and his complete befuddlement and hostility in the face of the second New Left.  Thompson's weary impatience with young marxists bemoaning 'the fuzz' is of a piece with his disdain for May 1968 as "a rich kid's revolutionary farce", his wariness about Third World revolution, trendy Parisian philosophers and all of the concerns of the New Left which struck him as either modish or politically immature.  To this extent, 'Stalinism' could function as a polemical convenience, enfolding within its compass a range of political and theoretical positions which were disagreeable to the English idiom and romantic moralism that he unapologetically deployed.  In this sense, I think Thompson bears out Althusser's claim that the post-1956 turn to humanism among formerly Stalinized marxists represented a 'right-wing' de-Stalinization; the introduction of feeble bourgeois ideologies of 'liberty' and 'humanity' into marxism was but the mood music for a rapprochement with liberalism.  Still, there are stronger grounds on which one might criticise Thompson's account here, chief among which is that his anti-theoreticist and empiricist tendencies, leave him without the theoretical means to fully break with the 'instrumentalist' account of the law that he is criticising.  I'll come back to this.

Another example of a leftist defence of the law, from a left-reformist perspective, would be Ian Taylor's arguments which were influential on the Labour Left in the early 1980s.  In his article 'Against Crime and For Socialism', Taylor sought to define a leftist defence of law in the context of growing social turmoil and dislocation arising from capitalist crisis and Thatcherite austerity.  The idea was that the left had failed to produce a convincing answer to popular anxieties about crime, largely because it was stuck in two irrelevant analytical modes: either revolutionary anti-statism, or social democratic authoritarianism.  Any analysis which began with a monolithic view of the state, as an instrument for class domination or an uncontested terrain dominated by a single class interest, was intellectually simplistic and strategically barren.  Taylor's argument suggested that law and the state were contested terrains, and he championed the 'community' response to crime favoured by the Bennite Left, organizing local campaigns while imposing democratic and accountable structures on the police so far as possible.  The obverse of this 'community' based politics was a reproach to criminality as anti-social behaviour.  Crime, he argued, was an ideological category which worked on real social material to produce the phenomenon of 'underclass' or 'lower class' criminality.  Thus, the left had to challenge the ideology by displacing the real content from its rightist-populist articulations.  The argument that criminality derived from despair, worklessness, inequality and poverty would not do.  Rather, criminal behaviour was really a kind of self-interested enterprise, distributed across classes in different ways, and a product largely of capitalist individualism.  Among the 'lower class' elements, crime arose from the breakdown of solidaristic communities, or from layers that had never been part of a cohesive, 'respectable' working class.  Social order was worth defending against this sort of predation; policing was an absolute necessity; but it had to be conducted on a popular socialist basis which simultaneously deployed policies to rebuild and stabilise afflicted communities.

This was a very common argument on sections of the Left, especially in the context of E P Thompson's intervention.  Stripped of its more radical prescriptions, the basic analysis of crime as anti-social individualism became the basis for a new authoritarianism within the Labour Party, eventually grounding Tony Blair's 'tough on crime, tough on the causes of crime' campaign and New Labour's punitive campaigns against anti-social behaviour.  Of course, this idea of crime as a form of self-interested enterprise was also offered as an explanation for last summer's riots.  It is vapid: capitalist individualism is everywhere, but crime is not.  Nor is crime necessarily conducted on the basis of 'rational self-interest'.  For all the frankly idiotic commentary freaking out about the theft of consumer goods during the riots, one thing that stood out was the frequency with which those involved acted without reference to material self-aggrandisement, often placing themselves in harm's way in order to conduct sometimes successful but ultimately futile fights with the law.  Altruism, group solidarity and a desire for collective adventure and liberation were salient features of the riots.  Part of the problem here is polysemy: that is, it can mean so many things to say, as Taylor does, that law is ideology.  Quite what that means in practice depends on your conception of ideology and its scope.  I would argue that Taylor, influenced by certain Gramscian motifs, treated 'crime' as an ideological category only inasmuch as it was manipulated by the Right, not inasmuch as it was produced by the ideological action of the law itself.  But again, this I will return to.

What I want to stress is that these kinds of arguments, correctly attempting to oppose a simple theory of law as an expression of class domination, miss what is central to law.  It isn't adequate to say that law mediates the actions of the powerful, and that such mediation is an improvement on unmediated power.  There is no such thing as unmediated power: no way that power could not be materialized in a particular medium.  And what is the medium here?  What accounts for the 'lawness' of law?  Wherein resides the specific aspect that makes legality what it is?  I will develop an argument about this, but the first clue is the constant presence of violence.  If law is a scene of contestation, what decides is violence.  If law has an imperative character, what gives it compulsory force is violence.  To the extent that law is operative at all, it is nothing other than "congealed violence".  Law is, in this aspect, nothing other than a particular organization of violence.

An example from history.  In a previous post, I discussed the 'Massive Resistance' mounted by Southern states in the wake of Brown vs. the Board of Education.  A series of Supreme Court rulings, from Smith vs. Allwright to Brown vs. the Board of Education, and then subsequent fast-track endorsement of the federal government's right to impose Voting Rights, challenged the white supremacist system in various of its aspects.  There was no claim here that the Court was interested in immediate reform.  The approach was to phrase such decisions in such a way as to grant maximum leverage to Southern states in the timing, scale and manner in which they de-segregated.

Importantly, much of the relevant scholarship is explicit in stating that the outcome of these arguments was determined less by the juridical arguments, deduction-from-precedent and so on, than by politics. It was the more centralized, 'interventionist' state arising from the 'New Deal', and a judiciary reconfigured by FDR, that made the difference in a very short space of time between a pro-segregation Supreme Court and one that was imposing reform. Later, the Truman administration's amicus curiae on the international ramifications of segregation made all the difference in Brown vs. the Board of Education. Putting a marxist gloss on this, I argued that underlying this development was i) the rise of monopoly capital and inter-regional firms requiring a further centralization and rationalization of the state of a kind that had begun in the 1910s, and having a different relationship to racial formations than plantation or textile capital, ii) the strategic shift in the Democratic Party's base in response to the emergence of an immigrant working class vote in the North, union insurgency and the growth of the African American vote outside of the South, and iii) the delayed emergence of a civil rights movement effectively deploying disruptive power to force the question and lever open divisions within the ruling class.

At any rate, this process - a Second Reconstruction by many accounts - necessitated the re-organization of state violence in the constitution of class relations. This was manifested quite literally in the federalization of national guards, the use of 101st Airborne, and so on, to physically coerce local state authorities into complying and dropping the various city ordinances, state laws, policing and parapolitical operations comprising 'Massive Resistance'. Between the state of Kentucky and the central state, force (not 'sovereignty', 'states' rights', the constitution, etc.) decided.  Law revealed itself to be, in a sense, nothing but congealed violence.

'Equality before the law' is a cardinal principle of liberal-democratic ideology, and it is one that historians like E P Thompson, and sympathetic theorists, have taken very seriously.  Thompson's critique of the inequities of law, of unjust law, took as its standard the principle of legal equity itself: of the civil and political rights of the 'freeborn Englishman'.  A certain type of marxist critique of this notion holds that it is a purely formal equality which conceals or conveys a content of inequality.  Such, as we will see, is the position of Evgeny Pashukanis.  This is not to say that such a critique must deny the efficacy of formal equality - on the contrary, Pashukanis' work is an attempt to comprehend this formal equality as part of the fundamental, cellular structure of law.  But it involves a different emphasis.  It is not that the law poses a standard of equality which it doesn't realise in practice, but rather that the legal relationship between abstract, formally equal individuals is just the form that class domination takes in a capitalist society characterised by generalised commodity exchange.

Against both interpretations, which actually converge in some of their fundamental assumptions, I want to suggest that the law does not give us formal equality.  Agents are assigned a bundle of rights and obligations depending on their location within the relations of production, such that their formal legal position with respect to one another, irrespective of how these rights and obligations are realised or elaborated in the process of jurisprudence, is not one of equality.  At the most simple level, a capitalist is not equal with a worker, even at the 'formal' legal level.  It will surely be objected that this refers to the substantive content of law, not its form.  Such a reproach is related to schools which treat the legal form as a foundational grammar of abstract legal subjects derived from certain aspects of the capitalist mode of production - most notably, as mentioned, the Pashukanis school which treats the legal form as a derivative of or homologous with the commodity form.  But I don't think the 'form' of law is restricted to its most abstract expression, even if one accepts the grammar of the commodity-law homology.  There are different levels of abstraction at which 'form' makes itself known.  Putting it like this entails that, if the form-content dichotomy is to be useful, it must be revised.  In its current articulation, it seems as if form is something settled at the highest level of abstraction, and content is settled at the highest level of concreteness.  Arguably, however, one finds 'form' and a corresponding 'content' from the first abstraction to the last concrete-in-thought.

As importantly, I am inclined to doubt that the commodity form theory explains what it is supposed to.  Let me reiterate the problem briefly.  The question of the 'legalness' of law comes up for a number of reasons.  First, because in order to truly understand the iniquitous 'content' of law it must be stated why that 'content' - class power, racism, patriarchy, etc - takes the 'form' that it does.  Second, because it is not possible to understand what law does in capitalism specifically, and in particular social formations, without understanding what makes it law in the first place.  That is, what is definitive of law across historical epochs and modes of production, and what is specific to this mode of production.  The Pashukanisian argument is that the legal form is the commodity form; that legal relations first appear in the exchange of commodities between formally free and equal subjects. The commodity relation depends on the items for sale being exchanged between formally equal subjects, who each enter the transaction as voluntary participants, as bearers of rights, particularly property rights.  And it is through this relationship that the legal form is "congealed violence".  For in such transactions, inescapably, there is the potential for one party to alienate the property of the other without consent, which must not happen if it is to be a true commodity relationship.  In the real process of such transactions, of course, coercion almost always intervenes in some way and at some level.  Either it structures the contract of exchange itself, or it calls into question the interpretation of the contract, thus producing a process of legal argument that can ultimately only be terminated through superior violence.  So it is that the grammar of abstract, formally equal legal subjects 'congeals' violence and domination, and the main forms of violence are of course class violence.  It is not that law's promise of equality simply can't be realised in the capitalist mode of production, but rather that this formal equality is the language that class domination under capitalism must speak in.

This seems to answer a number of problems.  First of all, it offers an apparently smooth transition between the determinant structure, the commodity form, and the resulting superstructure, law.  Second, it seems to allow us to pinpoint both the historical continuity of law and its discontinuity: the commodity form may explain the legal form in general, but it is only with the generalization of commodity circulation under capitalism that law expands from localised instances of contract to a universal structure.  Third, it seems to show the precise moment at which violence and consent are mutually articulated in the legal form.  It is so elegant a solution, and absolutely consistent with certain lines of Marx's thought.  But still, I don't think it does quite what it seems to.  First, the smoothness of the transition here is only apparent - unless the homology is reduced to sheer coincidence, unless the legal form just is the commodity form.  The latter is, I think, China Mieville's position.  In what appears to be a deft theoretical innovation, he argues that the law is split between the legal form, which is the commodity form and is proper to the base, and the practice of law, which is a superstructural phenomenon.  Thus, the legal form is but a particular juridical iteration of the commodity form, which is activated and materialized at a different (superstructural, political-ideological) level. 

Again, this is an attractive solution, but I will stick to my position.  I think this conception is inseparable from a set of positions on the base-superstructure controversy which are perfectly arguable but which I suggest we reject. First, China, following Pashukanis, rejects the analysis of law as ideology on the grounds that it reduces law to a set of ideas in people's heads.  Yes, there are all sorts of ideological aspects to, and ramifications of, the law; but, per Pashukanis, we must seek the "objective reality" of law "in the outside world", as opposed to merely the "subjective reality".  This desire to find the specific materiality of the law is part of the reason why Pashukanis tries to trace the legal form to the base, into which he subsumes commodity circulation.  As I will argue in a moment, however, this rests on an unnecessarily reductive conception of ideology.  In fact, it is an idealist conception of ideology which is at fault here, not the suggestion that law is ideology.  Althusser's argument that ideology consists of  "material actions inserted into material practices governed by material rituals" strikes me as the beginning of a superior approach.

Second, relatedly, the argument seems to me to rest on the idea that the superstructure stands in a purely external relationship to the base.  Thus, if the legal form just is the commodity form in a juridical iteration, it must belong to the base, forming part of the foundational structure that will then give rise to a superstructure in which the class-determined 'content' of law will be elaborated.  If, however, you don't assume this relationship of exteriority, it makes sense to see the different levels of the structure as being imbricated, mutually articulated.  Ideology, politics, law, etc., are constantly iterating different aspects of productive relations in their own idiom, constantly intervening, constantly constituting and being constituted by those relations.  And I would say that the fact that there is a juridical iteration indicates that it is already a superstructural phenomenon.  In itself, accepting this way of looking at it doesn't have to pose a problem for the Pashukanis school.  It is quite possible for this juridical iteration of the commodity form to be a superstructural form and still comprise the cellular structure of law.  However, this does allow us to displace the problem.  With Pashukanis, we're trying to locate the materiality of the law in a property of the infrastructure.  Instead, we can now think about ways in which the mutual articulation of infrastructural and superstructural levels determines both the form and content of law.  And that means, we can allow that the form of law is determined by more than one property of the infrastructure, by more than commodity circulation - we can introduce, at different levels of abstraction, productive relations, the social and technical division of labour, the geo-economic unity of a social formation, class struggle and so on.

Moreover, it enables us to think the continuity and discontinuity of law in a far more specific way.  In the Pashukanisian scheme, the emergence and persistence of law is coterminous with the emergence and persistence of markets and commodity trade.  What persists is the basic legal form. Similarly, the change taking place between pre-capitalist and capitalist legality is seen mainly at a quantitative level: ie, in a shift from localised instantiations of the legal form to its universalization.  I think something more than a quantitative shift takes place.  Even at the level of the commodity form itself, there is a qualitative transformation.  In precapitalist, 'simple' circulation, the relationship of commodities to the social division of labour, and thus the commodity relation itself, is completely different.  Many of the inputs of existing commodities have not themselves been commodified; labour has not been generally waged.  The transaction is much more directly determined by political force, or rather by traditional rules, by notions of a 'fair price' arising from religious and political intervention appropriate to feudal social relations, and so it is not necessarily an exchange of equivalents.  In fact, unequal exchange in buying and selling must be considered the norm in pre-capitalist commodity circulation.  The relation of equivalency only seems to operate where the law of value operates; that is, where exchange value understood as the amount of socially necessary labour time embodied in a commodity, is operative.  That is, the commodity form only assumes the form of the exchange of equivalents, requiring the abstract legal subjects which we are invited to see as the universal grammar of law, under capitalism.  It is not that certain formal aspects of the exchange - the act of production for exchange, the use of an exchange medium, the juridical iteration of the exchange relationship - don't stay the same.  It is that the formal aspect which is supposed to ground the legal form changes entirely.

This makes it, I maintain, the wrong axis of continuity.  I maintain instead that we must have an account of law that can incorporate pre-capitalist legal forms: theological jurisprudence such as Shari'a, law that is derivative of religious ritual such as Roman law, different forms of customary law, the Hammurabi Code, etc etc.  That is, an account of law that can comprehend forms which are not predicated on an abstract formally equal legal subjects, whose subjects are explicitly hierarchically differentiated, and which are associated with imposition (thesmos) as much as contract (nomos).  It must allow us to encompass the dense networks of legal relations which in precapitalist as in capitalist societies extend well beyond the sphere of commodity circulation and are decidely not equitable relations.  Such an approach will of necessity not permit the conclusion that bourgeois standards of equality are embedded in the legal form itself at its most abstract level, in its 'timeless structures'.  The legal relation is only infrequently in history one between equal subjects or between equal rights, and then only in a certain abstract manner relating to certain social classifications (citizenship).  Far more pervasively, it is a relation between unequal subjects - not just unequal individuals but corporate subjects, states, and so on - unequally endowed with rights and obligations. 

The solution as I see it is to return to the concept of law as ideology; that is, as a particular element in a mode of production that is proper to the ideological superstructure.  Since the different levels and elements are always-already mutually articulated, their specific form and content (including the appearance of the 'relative independence', as per Franz Neumann, of the legal order) will depend on their articulation in a mode of production and the site of its realization, the social formation.  But that still leaves wide open the question of what kind of ideology it is, and why it takes form it does.  I have cited Althusser's claim that ideology comprises "material actions inserted into material practices governed by material rituals".  If one thinks of the actions of the police officer, the practices of the police bureaucracy, the rituals of the justice system (naturally, my mind gravitates toward HUAC, SISS, and other instances of ritualised repression, but arguably ritual governs the whole field), the action of the law does seem to conform to this characterization.  Of course, for Althusser, the materiality of ideology was inseparably coextensive with the materiality of the state: hence, ideological-state apparatuses.  So, it would seem appropriate to talk about the state.  To be frank, we cannot talk about law any longer without somehow referring it back to the state's constitutive action.

There is a misplaced concreteness that is invested in the state (including by Pashukanis), in which its materiality inheres in a machinery or instrument of domination.  But this spurious institutional determinacy, based on the 'public' kernel of prisons, armed men, etc., will not hold. The state spreads itself over a much wider field than this, and constitutes areas of life that are supposedly 'private' (in part through the very public-private binary that it sustains). The materiality of the state resides in the relations of forces that it condenses in its institutional sites of power and, through its practices, its action at various levels of the social formation.  Part of this action takes the form of symbolic production, moral regulation, the production of social classifications and, as a corollary, the punishment of symbolic and moral trespass, the disruption of its classifications, etc.  This means that violence is immanent to its action, whether or not violence is immediately deployed.  And it is in this sense that I argue that law occupies the position of an ideological relation within the state's strategic field.  It is in this sense that legality appears as both at one and the same time the dominant mode of legitimacy, of consensus, and the mode in which terror and repression is constantly brought to bear in shaping the social body.   

This brings me to my first attempt to say something definitive about law: Law is the dominant form of the dominant ideology concretized in practices which are permanently inscribed with political violence.  In saying this, I do not mean that the dominant ideology or the legitimacy of the law is simply uncontested.  Nor do I mean that the dominant ideology is just the ideology of a single class, and that therefore law is nothing but the execution of the 'will' or interests of that class.  Rather, it is through contestation and class struggle that the dominant ideology reproduces itself, not as a homogenous ideal substance but as a necessarily heterogenous formation comprising elements of popular ideology which have been absorbed and their oppositional character neutralised.  Poulantzas, strongly influenced by Gramsci, incorporated this into his theoretical architecture more successfully than Althusser.  To this extent, following Poulantzas, we can say that law is a juridical condensation of the relations of forces in the social formation that it rules.

But there is a peculiar characteristic of law as ideology, which is its imperative, axiological-deductive character.  Whether the law's application is 'deduced' from a civil code, a constitution, or from a body of 'common law', it takes the form of a chain of juridical logic, the unfolding of a set of determinations from a body of axioms and norms.  This is nothing other than a rationalized, predictable structure of domination and decision-making within the field of the state.  This rationalization is something that emerges from the double freeing of workers from the means of production, the social division of labour arising from this and the operation of the law of value as a homogenizing dynamic.  Its imperative aspect is accounted for by the immanence of political violence to its actualization.  Law in this sense is a mode of disciplinary power, an articulation of the dominant ideology (within a capitalist mode of production) with the political violence which secures its dominance. 

This brings me back to the question of formal equality.  I have said that law is usually not a relation between equal rights.  But the appearance of formal equality is not a bagatelle, not an optical illusion.  Rather, it does appear at different times in the sphere of legality, in certain forms of legal subjectivity.  Citizens are formally equal, even if capitalists and workers are not.  But it seems to me that this arises from the action of the political first and the legal second.  In terms of the formal equality prevalent in bourgeois democracy, it arises from a type of individualization created by the capitalist state.  The Pashukanis school argues that formal equality between empirically different individuals is strictly homologous with the formal equivalence between qualitatively different commodities.  In effect, (meaning, tendentiously put), the formal equality of individuals in law is a kind of exchange value of the subject.  But I think this takes for granted the individualization that it describes, and which forms the basis for the legal relation.

Either one must assume that the individuals thus mentioned are understood as 'biological' individuals (which I certainly think is implicit in Pashukanis, but is problematic because the existence of such individuals can in no way be just assumed), or the process of individualization must be assumed to have taken place through the commodity relationship itself (which I think is problematic because the relation between traders doesn't have to be a relation between individuals), or it must be something that emerges from the freeing of productive agents from territorial-personal bonds and the rupturing of the chains of signification cementing agents within that bondage. If it is the latter, as Poulantzas argues (I think convincingly), then this crucial link in the grammar of law is established by means of an effect of isolation which has roots in the atomization of productive agents in the capitalist division of labour, and is iterated at a juridico-political level by the capitalist state.  Thus, a capitalist type of individuality is produced.  And in the sense that individual subjects thus produced, juridico-political citizens, are all equally subject to the rule of law, formal equality prevails.  This is also simultaneously a totalising mechanism, inasmuch as these are subjects to the extent that they are incorporated within a national body, within the rule of law as such.

With this capitalist division of labour, the double freeing of labour from means of production, the replacement of tribute with the homogenisation of labour processes into abstract labour-time, comes a simultaneous granulation of social space into an imperfectly homogenised grid of locations (sites of production and consumption, as well as extended reproduction) in contrast with land-as-sovereign-body. The organization of production for surplus value entails rationalization, the bureaucratic standardization of units of space-time, the individualization and isolation of agents as competitive producers, the administration of production relations and thus of class antagonisms along scientific-rational and predictable lines. It entails the organization of political violence according to a system of rationalized axioms.  I think this accounts for the main chracteristics of law in its capitalist form.

This brings me back to the arguments from Thompson and Taylor which I was disputing at the start.  For they both correctly argue that the law is not just an instrument, but is also a field of contestation.  Yet they conclude from this that the law has a legitimate function which is the mediation of power, the suppression of violence, the containment of anti-social actions and so on.  What this misses is that law has this role only inasmuch as it is a mode of class domination: it only mediates class power inasmuch as it reproduces class power through its action; it only suppresses violence inasmuch as it is the organization of violence monopolized by the capitalist state; it only contains anti-social action in as much as the state defines, through the law, what is anti-social.  I said Thompson and Taylor don't fully break with the instrumentalist account of law and the state that they seem to reject, and this is true to the extent that their evaluations imply that the same apparatus can be inhabited and put to use by one or other class in support of any political objective; that any seeming structural selectivity is due to a misuse of the instrument which can be put right by proper use.  They also both greatly over-estimate and misunderstand the role of formal equity in the law.  It is not a promise that law makes, but which goes unrealised due to the distorting role of class power.  Rather, it is a juridico-political form which really does exist and is realised within the capitalist mode of production precisely as a mode in which the political and ideological dominance of the ruling class is secured.  That it is also the form in which this domination is provisionally and partially contested does not change this fundamental relationship.  To do away with class power is not to free law from its shackles and distortions, but to do away with law as such.