REVIEWS
| Date | 01 January 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb00788.x |
| Published date | 01 January 1978 |
REVIEWS
IMAGES OF LAW. By
ZENON
BANKOWSKI and
GEOFF
MUNGHAM.
[London: Routledge
&
Kegan Paul Ltd.
1976.
xiii
and
178
pp.
Paperback:
€2-50.1
THE
authors’ stated position is Marxist. Their declared objective is the
attainment of
a
socialist society:
“
The aim of socialist society is to make
men’s relationships with each other, and with the world, obvious and not
obfuscated by various ideologies.” In this society
“
legality
”
will in some
sense reappear because it will help to ease the problems of clashing diversities.
But within the context of
a
socialist means of production, these problems
will not have individualism built into the statement of the problem and
it therefore cannot figure in the solution. The principal aim of the book
in Marxist terms is to suggest
a
praxis and to provide
a
critique of the
assumptions of
“
liberal
”
or
“
radical
”
lawyers especially with regard to
“
relevant
”
courses in law teaching establishments, and the provisions of
legal services for the poor.
So
far
so
good, and for the purposes of this review we propose to take
the book on its own terms. Whether or not individually we believe in the
possibility of the authors’ particular objective, we must accept that within
Marxist theorising there is
a
book to be written in this area, and even if
we do not accept
a
Marxist position,
a
critique
of
the too often ill-thought-out
positions of liberal and radical lawyers is timely (we are not, of course,
suggesting that the position of non-liberal lawyers is likely to be any better
thought out). Unfortunately, neither as a contribution to Marxist thought,
nor as
a
critique of fashionable positions does this book deserve the not
inconsiderable attention which has been paid to it. Although from time
to time thought provoking remarks are thrown out, the overall theoretical
confusion exhibited by the authors within their own chosen perspective
is also reflected in much of their critique.
In Marxist terms correct theory is a precondition
of
correct praxis. In
their ha1 chapter the authors state,
‘‘
man can create the world and change
it
. .
.,
the possibilities of liberation lie within each person’s group.” They
suggest that there is
a
praxis
“
What it needs
is
an epistemology to explain
it; to show that this is rational action in the world and not the activities
of unscientific, unreasonable men.” Thus trials must be politicised and
thereby courts de-legitimised. Proletarian power must be built up, for what
is important is the taking over of houses and factories, and not the taking
out of injunctions and the like. Approving citations are given of the Chicago
conspiracy trial, Jerry Rubin’s behaviour before the Un-American Activities
Committee and the behaviour of the defendants in the Angry Brigade trial.
On the latter the authors observe, “This mode of defence must be seen in
the context of the general political consciousness of the society. For those
tactics work more readily if the society itself is on the boil. Thus the
Angry Brigade trial, while trying to take on some of the features of the
Chicago trial, did not have the same impact, because of the relatively
greater stability of British society at the time.” Well, yes, but what does
this say about the level of the authors’ analysis?
If
the behaviour
of
the
Angry Brigade defendants did not lead the majority of the population to
the perceptions desired, and workers do not on the whole combine to take
over houses and factories, this must be because the majority of the population
do not perceive reality in the same way
as
the authors. Why not?
In
Marxist terms because people’s perceptions of the world are
themselves
a
product of the contradictions arising within the social formations. They
will not, therefore, be
“
de-mystified
”
by such activities, and within
a
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Marxist perspective to imagine that they will be is simply naive. The authors
do not in fact appear to understand the concept of ideology in Marx. Their
position does not appear to be Marxist at all, but rather sub-Marcuseian
Anarchist (the terminological confusion in this labelling is quite deliberate).
The authors’ central thesis is that the law embodies
a
reified view of the
world. Certainly many popular images of the law such as the
“
law is the law,”
involve
a
reified view. Images of the law are not the law however. Failure
to perceive this is
a
reflection of the unsoundness of the authors’ epistemo-
logical position, and leads them to adopt a methodology which is unsound
within their claimed perspective. Their methodology is in fact un-Marxist.
For example,
a
truly Marxist analysis might begin by identifying the
separate elements
of
law
(ie.
its actual normative content), legal methodology
and legal institutions (the courts, professions, etc.), and
go
on from there
to the construction of
a
theory of their inter-relationship and place in
a
capitalist society. This would also involve an analysis of the nature of
the state (not autonomous) and the law. Such a task would be immense,
but its accomplishment could provide invaluable insights
for
Marxists and
non-Marxists. Because of their apparent confusion about the nature
of
ideology, the authors do not even begin the task, and indeed this confusion
leads them to operate with reified views
of
“
power,”
“
state
”
and
“
society
”
which are also un-Marxist.
We have chosen to criticise this
book
on its own terms and judged on
its own terms it
is
weak. It can be criticised on other grounds however: the
overall structure is poor-a result one suspects of both hurried production
and joint authorship. The impression the book leaves is
of
some not
uninteresting empirical research (Chap. 3) strung out into
a
volume of
muddled theorising. Moreover, the style is often loose and imprecise, and
silly
errors
are occasionally left uncorrected,
e.g.
‘‘
Thus the jury, by refusing
to convict, drastically reduced the amount of crimes that were punishable
by death penalty in the late nineteenth century.”
Having said
so
much we feel we must say something in the
book‘s
favour.
On the merit side it does touch on matters which should be
of
the greatest
possible concern to all of
us:
lawyers and non-lawyers, Marxist
or
non-
Marxist. The benefits
of
extending legal services to the poor (whatever we
mean by
“
the poor
”)
are not to be taken as self-evident-see Morris, White
&
Lewis,
Social
Needs
and
Legal
Action
(1973). To take but one illustration:
one of the so-called
“
current needs
”
of
the poor is adequate representation
before the tribunals which figure
so
largely in their lives. If we simply
extend legal aid to tribunals without further thought we run the danger of
attempting to solve the problems created by one organ of the Welfare State
by setting up another organ of the Welfare State. We should first perhaps
consider whether or not those problems are inevitable. We do not need
to share the authors’ dewy eyed romanticism-“ the lawyer takes away the
poor old man’s last property, his problem,”
to
realise that the use of the
lawyer’s particular skills and ways
of
solving problems is not necessarily
always going to be in the best interests
of
the poor either individually
or
as a group: sometimes they may be, sometimes not. The fact that
a
lawyer
can deal with a problem does not necessarily mean that he should for there
may be better ways of dealing with it, and indeed other ways than his
of
defining the problem. Unfortunately, the authors’ particular approach does
not give
us
any very valuable insights into these matters.
J.
N.
ADAMS.
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