NOTES ON SELECTIONS FROM : Fine B, Kinsey R,

Lea J, Picciotto S and Young J (eds) (1979) Capitalism

and the Rule of Law: from deviancy to marxism, London:
Hutchinson.
Young J 'Left Idealism, reformism and beyond: from the New Criminology
to marxism'
[The rather odd structure of this chapter might be explained if we are prepared to see
it as a brief reply to the criticisms of critical criminology offered by Downes -- see
file].
It is necessary for a critical criminology to debate old theories, and reconstruct them,
because they are embedded in reformism. It is important to critique them, and some
examples follow:
(1) Left idealism. Here, any crisis indicates a problem of hegemony. All struggle is
revolutionary activity, especially feminism, Black Power and so on. There is an odd
alliance between marginal proletarians and marginal bourgeois -- academics. Control
seems to operate via mystification, leading to a critique of education for example.
Thus deviancy and rebellion are rational. All institutions alike mystify -- which is
really a functionalist analysis! Happily, there is a voluntarist underlife, so crime and
deviancy are also alike, and normal. This perspective plays down crime, especially its
tendency to involved the working class as victims, and it maximises the anti-working
class elements of ruling class crime. Positivism is the real enemy, however, and the
main strategy to pursue is expose, which will lead to the abolition of repressive
institutions and their replacement by proletarian institutions. Overall, this approach is
far too general and is unable to distinguish among important categories.
(2) Reformism. A patchwork of reforms follow the discovery of discrepancies
between law and practice. The idea is to capture the State and to control institutions,
and then to achieve certain ideals -- and this is only possible through socialism. Crime
arises either from egoism or from social pathology, which occurs with the decline of
proper limiting and moderating social relations: crime is therefore a symptom of the
need for social reform.
Official statistics are biased, for example, they are over represent street crime. This
happens for a number of reasons:
1.
2.
3.
4.

It appears to be universal, so all parties are united to condemn it

Street criminals are the most vulnerable
Street crime is more transparent
There is a qualitative dimension -- the victim is in the same social class as the
offender, which makes this the ultimate in anti-social behaviour.

For other commentators, crime is produced by the aspirations of the employed worker
combined with a denial of legitimate opportunities, leading to an unequal class
society. This is a useful argument for binding be employed to their work, and in

producing crime among the unemployed. Similar inversions occur with those who see
crime as a problem for capitalism -- the reality is that crime is produced by the
problems of capitalism. Similarly prison is obviously dysfunctional as a corrective,
but it is thought to be functional as a deterrent, precisely because it is so ineffective!
This leads to a discussion of ideology, as in Mepham and Lefebvre. The argument is
that reality is contradictory, which makes ideologies credible: thus notions of formal
equality on not just propaganda or a sham, even though they do reproduce
inequalities. In a similar vein, the law is not just a simple reflection of ruling class
interests. It is independent to some extent, as well as functional for capitalism.
Abstract equality does only favour the rich, but some bourgeois forms of equality are
still worth defending: they have some political mileage, they help us participate in the
law and order debate, and they can lend a legal dimension to political struggles. This
must, of course, be a matter for some calculation, rather than some principled
rejection or acceptance.
As examples of the usefulness of bourgeois law:
(a) we might be able to develop new categories of mitigating
circumstances, perhaps even class categories [ actually, categories that
mitigated the crimes of females seemed more promising at one stage]
(b) we might be able to confront law and order campaigns [using legal
means such as demonstrations?]
(c) we should appreciate the diversity of legal apparatuses, and work
with the best ones, although contradictions are easy to encounter here
(d) we could use the law to defend the working class, although we
would need to be sensitive to history, and defend them against Socialist
abuses too.

Picciotto S ' The Theory of the State, class struggle and the law'
We need to engage in new struggles over law-and-order, resisting dismissals by the
Left. There is a general problem of the legitimacy of the State, as seen in its stance on
terrorism. A crisis has arisen from the need to restructure capitalism after a period of
affluence. Left analysis often involve seeing law and coercion as connected, mostly in
terms of how the law justifies State coercion -- but the law can be invoked against the
State too. The law is therefore ambiguous: the State must continue to act legally, but it
is then open to critique by the same standard. This is consistent with Gramsci's views,
who saw the source of the old power as aimed at consent rather than coercion, and
thus as open to struggle. However, even this is too limited, operating with a simple
binary, rather than looking at specific ways in which the law has been used
historically. We should examine forms of coercion, or how exactly consent has been
won.
We need some new conceptualisations. The idea that law appears neutral, while
arising from class social relations leads to some familiar debates about the State and
its connections to social class -- whether it has been captured by a class, or whether it
must be an organ of class rule. Concepts of neutrality, and autonomy are specific
notions in capitalist social relations, offering the following possibilities:

(a) a Sociology of Knowledge - type approach, where groups are seen

as represented in a legal process [that is, as far as I can recall, where
social groups of all kinds, not just classes, have their typical world
views represented in areas such as the law)
(b) a Lukacsian totality, where the emphasis is not just placed on [the
law regulating ] work, but rather on [wider notions of ] social
reproduction
(c) notions of relative autonomy, which permit wide struggles -- but
this assumes that the economic level is [always ] separate from the
social, that law operates at another level, or that the State is a political
region which is merely formally tied to production
(d) an historical analysis showing how commodity fetishism occurred
as well as law [both serve to to reproduce the social relations of capital,
of course, so perhaps Picciotto is asking why the same system evolved
both mechanisms? See below as well]. We need an historical account
rather than an approach which stresses that the derivation of law from
the logic of capital.
We need a complex analysis of the development of legal forms. Law has developed in
parallel with wage labour and employment contracts, and actual social relationships
have been framed in an legal context. It is possible to see this as instrumental, as a
matter of a class dominating this context: or to see law as operating with relative
autonomy, and determined in the last instance by the economy, while form-derivation
theories would see legal relations as a part of the characteristic social relations derived
from capitalism [as somehow embedding notions of the individual and their
responsibilities, perhaps, or notions of the individual body as private property, or
whatever?]
However, actual relations depend on a prior fetishism -- forms are fetishised, as
relations can between 'employees'', for example. Such fetishism and separation lies
behind the autonomy and separation of the economic and political levels -- thus legal
categories arise from characteristic forms of accumulation. To take a recent example,
the Labour Party promoted the notion that individualised 'rights', which were to be
extended to workers, were an attempt to defuse collective struggle, and to break
solidarity. When they were opposition, however they had problems in attacking
Conservative proposals which trampled on the notion of individualised rights. We
need to transcend this notion of social relations, rather than just rattling between the
poles like this. We should not dismiss the notion of legal rights but try to surpass
them, for example by emphasising that they enshrine a fetishised individual, and a
notion of property, which are all in a commodity form.
The legal trial, as a form of rationality, is itself historical, emerging in parallel with
the notion of formally free and rational labour, which was itself grounded in highly
unequal relations of production. Formal equality lead to universal extension of the
law, which was possible only after bourgeois control of Parliament, based on the
mythical separation of powers [between the law and politics]. There still are
contradictions in this, such as when specific groups are entitled to exempt themselves
from universal provision.

These woolly areas require us to develop new categories, beyond the simple binaries
such as those of coercion or consent. At the moment, professionals mediate and apply
laws, so we need to deprofessionalise the issues. Some restructuring is needed too -both bureaucratisation and the flexibility of private property can challenge the State.
The laundries to be revitalised, but then it becomes policy, which reveals the State as
partisan, which then leads a new space for struggle.