An autonomist analysis of the function of the law by Midnight Notes, 1985.
"It is possible to neutralize carefully selected and planned targets, such as court judges, ...judges, police and State Security officials, CDS chiefs etc. For psychological purposes it is necessary to take extreme precautions, and it is absolutely necessary to gather together the population affected, so that they will be present, take part in the act, and formulate accusations against the oppressor."
CIA Manual Psychological Operations in Guerrilla Warfare
"Mine the harbors of Nicaragua? This is an act violating international law. It is an act of war. For the life of me, I don't see how we are going to explain it."
Barry Goldwater Letter to William Casey (CIA) 21/10/84
"Among international law experts, a group not noted for their unanimity, there is remarkably broad agreement that the United States' invasion was a flagrant violation of international law.... Those who minimize the international law implications of the Grenada invasion will say the foreign observers will be impressed - and not by our acceptance of the constraints of law - but our ruthlessness—our willingness to impose our will by force. ...But foreigners aren't stupid."
Abram Chayes Prof. of Law of H.L.S. (served as legal adviser to State Dept. from 1961-64) (N.Y. Times editorial 11/15/83)
“The president has no understanding of law"
Anthony Lewis N.Y. Times Editorial 4/11/84
"From thence they proceeded to Newgate, and gave them FIVE MINUTE LAW!"
"First thing, let's hang the lawyers."
USING THE LAW POLITICALLY
We have long realized that the law/politics dichotomy professed to us by capital is as fictitious as the economics/politics dichotomy. It has also long been clear that capital has always in one form or another, used the law politically in its struggles against us. Further, it has worked hard at maintaining the law/politics dichotomy fiction. Much of the liberal jurisprudence is devoted in one form or the other to this task.
And so we are not surprised that the Reagan regime is aware of the fictitiousness of the law/politics dichotomy. What is a surprise to us, however, is that major parts of Reagan's counter-planning have involved what amounts to direct attacks on certain sectors of the legal system and the laws it adjudicates (together The Law). The Reagan administration has openly manipulated the sectors of The Law it wants to use in its struggles against us and has expelled The Law as it is used to control and regulate the state and the economy. In other words, Reagan is openly attempting to use The Law as a political tool in his counter-planning against us. These actions differentiate the Reagan regime from "normal" practices of previous regimes in the U.S.
Reagan has also been very open about the fact that he sees much of The Law he wants to destroy and change as products of our past struggles where capital ended up with the "short end of the stick". He sees those sectors of the law as being in large part responsible for the work/energy crises capital has faced in the last 20 years.
And finally, Reagan is taking such drastic action (an open demystification of the law/ politics dichotomy) at a time when it is capital that is on the offensive (at least in the U.S.). Common liberal and even leftist knowledge would have us believe capital would be employing more "legitimating" forms of counter-planning. In other words, it is attacking and eradicating large sectors of The Law and the liberal state at a time when capital, at least in the U.S., is not facing imminent destruction.
We have not been surprised to see different sectors of the class react to Reagans counter-planning by turning to The Law - using The Law politically. These legal struggles have had substantial importance in our defensive actions (immigration, human rights, civil rights). What has disturbed us is the often acutely legalistic form these struggles have taken. We have seen an inability to make legal struggles political rather than simply legal. Perhaps more serious has been an inability for "political" struggles to transcend narrow legality. While Reagan understands the law/politics dichotomy as fiction, most of the class (and the left - regardless of what they say) has treated the fiction as real politics must be acted within The Law, The Law is not political.
Given that The Law is playing such a major role in our struggles with capital at this juncture, we in Midnite Notes have decided to re-examine our understanding of The Law and the role it presently plays in our struggles. The purpose of our analysis is to develop a conceptualization which will enable us to use and understand The Law as a product of our past struggles and as a tool for future struggles; in other words, to enable us to more effectively transcend the fictitious law/politics dichotomy. We also seek to develop a conceptualization which will enable us to discover the limits of The Law so as to enable us to transcend it more quickly and effectively.
Our (MN) past experience with the numerous debates and reflections on The Law has led us to conclude that we (MN) must begin our task by first developing our own conceptualization. We arrived at this understanding primarily for two reasons.
First, present conceptualizations and debates on The Law and its role in our struggles, generally appear not to be effective when we as a class (or sectors of the class) try to apply them so as to politicize our use of the Law. Although they often make significant contributions to our efforts at arriving at an understanding of both how capital uses The Law and how The Law as an institution works - in other words, a critical view of capital's perspective of The Law - they generally fail to provide us with an analysis of how we as a class use The Law, the limitations of it, and how we can use it in conjunction with other forms of struggle. In short, they do not provide a working class perspective of The Law. This problem, in large part, is a consequence of not placing and analyzing The Law in the context of a political (class and social struggle) universe.
Second, none of these conceptualizations are founded on a "refusal of work" perspective similar to our own. In order for us (MN) to begin a serious analysis of the role The Law plays and can play in our struggles, we first need to analyze The Law itself from our perspective.
What follows are notes on our preliminary, conceptualization of The Law. In later issues we intend to criticize and expand on it. We also intend to use it to address past, present and future struggles as well as other perspectives of The Law. Other articles in this issue, in part, begin to do so immediately.
2.0 Flashback To The Prologue
In Prologue To The Use of Machines (MN # 5) (hereinafter Prologue), we (MN) "voyaged in(to) the manifold of work (world of work) searching (for) an escape from it". More specifically, we set off to discover the interrelationship among "work" (as formally defined by capitalist society), the development and use of machines, and The Law of Value.
As a result of our voyage we arrived at a set of conclusions. For present purposes we shall summarize some of the relevant findings in three parts.
2.1 First, we determined that the Law of Value acts as a control grid (see Interlude 1) through which capital attempts to impose (see Interlude 2) work on us as a class. This grid uses and incorporates the formal representation of human work to measure value, distribute it, manage it and hide it. It is our struggles against capital that both forces this formal representation to greater complete-ness and closer to its destruction. We also determined that when one focuses on formal work processes (within the manifold of work), the Law of Value appears as the predominant control device.
2.2 Second, we determined that the incompleteness of the "rigorous" Law of Value necessitates a ruling apparatus whose function it is to enforce the "definition" imposed by the Law of Value. We suggested that the ruling apparatus was composed of institutions as the state, corporations, The Law and so forth. We further suggested that this ruling apparatus is in fact an image of the incompleteness of the formal representation of the Law of Value.
2.3 Third, we determined that together the Law of Value and the ruling apparatus do not encompass, define or explain our universe, which includes also the refusal of the Law of value and the ruling apparatus (both of which, in turn, include and are shaped by our refusal), and the realm of non-work, of social being, which daily co-exists with work and refusal. Our investigation into the role of The Law in the manifold of work cannot directly investigate the world of non-work; rather, we attempt to take notice of this realm as we base ourselves on the refusal of work to investigate law and work.
Control Grid - We (MN) are using control grids as conceptualizations of what may be defined as modes/basic relationships/fundamental deals that exist in this society which are a product of class struggles and which function and exist to define relationships among ourselves and between us and capital - to impose control and keep struggles within ultimately "productive" limits. At this particular time in history, we are referring to control grids that exist in capitalist society which attempt to define particular work relationships and situations (production and reproduction) - in particular the Law of Value and the Law of Deals (explained later).
As we define them, these control grids are products of our struggles against capital. Each functions according to a particular type of logic and has its own rules and dynamics. This can be seen from our analysis in Prologue where we concluded that the Law of value functioned to impose work on us and that it had its own way of measuring value and incorporating our struggles.
Define - We are using the term define to connote situations such as where a control grid (i.e. Law of Value) attempts to impose control on particular relationships or particular situations according to its own logic and dynamics. However, since the struggle is always present, the outcome is generally uncertain.
Control - We are using the term control to to connote attempts at controlling (struggles involved in trying to control).
3.0 Journeying Into Manifold of Work
In the manifold we find a ruling apparatus. A preliminary analysis of the apparatus (as defined in Prologue state, police, The Law and so forth) leaves us with an impression that each of the institutions and organizations which comprise the apparatus both has a life of its own and is a purely capitalistic institution.
Each of them appears to have a specific function it performs for capital. Each of them in turn performs its functions in its own "mysterious" way - under its own internal logic with its own rules and regulations. This perception, however, is obviously inadequate and politically dangerous as it fails to see all the actors in the development and maintenance of these institutions and organizations. It only sees the genesis, adaption and modification of these institutions from a capitalist perspective. To pierce the veil, it is necessary that, as when analyzing commodities, we go beyond the things/objects relationships and get to the level (a more fundamental one) of human relationships - the levels of work, and of human activity. The level at which we can perceive the struggles which in the end produce the wealth, organize and run the institutions, reproduce society and produce the surplus upon which capital lives.
At this level, we can perceive each of these institutions as a product of social relationships and activity... Given that we live in a class society where class struggles over time shape our lives and our relationships, this quite simply means that these institutions are products of class struggle over a period of time.
We find that in order to more clearly understand the struggles that led to the adaption, development and maintenance of these organizations and institutions we need to introduce a concept which we will call the DEAL.
4.0 The Deal
The deal as we define it is a product of social relationships within a political/social context: an understanding/compromise/guarantee/imposition/division (for the lack of better language) between classes, individual members of classes or different sectors of the same class.
A deal involves two stages. The first is a deal/agreement to make a deal (stage 1) (e.g. to sell labor power to capital). The second stage is the specific deal(s)/agreements resulting from the agreement to deal (e.g. time and a half for overtime).
There are also two types of deals. Those which define a particular relationship (type a) and those which define the procedure of making deals and enforcing them (type b). The degree of force/coercion in which two sides agree to deal and make deals varies continuously with the political climate.
Neither class (or members of the class) nor capital ever chooses to be in the position which they find themselves. They have to do the best they can with what they have. As long as capital and the class are in struggle and the class is unable to destroy capital once and for all, we as members or sectors of the class are forced to make certain deals with capital. As long as capital exists, it has to make deals with us so as to be able to extract work from us. Under capital, there is no sense of "consenting" to deal (not even in a contractual sense) (as Marx noted, capital is a relationship of class struggle); it is a question of having to make deals.
The deal, cannot be understood in isolation. It is a product of class struggle. In other words, the deal is a product of present and past struggles around work and the refusal of work as well as those for life beyond work. To be a little more precise, the deal is a product of struggles where factors such as: the cycle of struggles, direct force, the Law of Value, money, institutions and organisations, ideology, technical reality and possibilities, wealth, past deals, deals being made and remade in other sectors of society, and of course the refusal of work - all play important roles. Thus a deal made at one point in time is a product of deals made at earlier points in time in conjunction with other factors.
4.1 The Precedential Nature Of The Deal
One of the most important characteristics of a deal and deals in general is that they not only act to define relationships at one particular time, but they also act to define relationships and new deals in the future. Our lives, in large part, involve struggles defined by past deals. We rely on them to make decisions about what we can do at any time, to justify our acts (including striking new deals) or to defend ourselves against attacks by capital. Capital does the same thing. The result of these usages is a continuously changing "body" of deals upon which struggles are often defined.
The "precedential nature of deals" as well as the stage 2 deals both arise out of stage 1 deals. To be able to better analyze this "deal to deal" we need to introduce a concept we will call the Law of Deals. First, a word about breaking deals.
4.2 Deals Are Made To Be Broken
It is imperative to understand that deals will be broken whenever either side perceives that it is to its benefit to do so. Given that deals are made in a political context where both sides have antithetical demands, either side is always looking for a better deal. The ultimate goal for the class is to destroy capital and not have any deal with it at all, Capital, however, must have a working class and so only survives if there are deals.
5.0 The Law of Deals
The first deal we as a class struck with capital was in fact the most important deal-the acceptance of the waged labor/capital relationship (a stage 1 deal) and along with it, at a basic level, the Law of Value "deals". As a result of this FIRST DEAL, an infinite number of deals have been struck and broken (type a,b and stage 1,2).
Our struggles with capital have continuously elevated a subset of these deals to a position where they have played a major role in defining our struggles. More precisely they have been used by capital and the class to:
1) define social struggles and other social relationships,
2) define social institutions and organizations,
3) define the manner in which past deals will be used to define new deals, and
4) define how unsuccessful deal breakers or deal makers will be punished or forced into abiding by the "rules". It is this subset of deals that we have defined as the Law of Deals.
6.0 Returning To The Manifold of Work
Now that we have finished introducing these two concepts, we can continue with our voyage through the Manifold of work.
5.1 The Law Of Deals Qua Control Grid
We (MN) find that analogizing the Law of Deals to a control grid is very useful. It is not only one of the best conceptualizations of our proposed concept (The Law of Deals), but it allows one to play with the Law of Deals in useful ways. It allows one to: place the Law of Deals in space (n-dimensional); visualize its porousness; visualize the limited amount of social space it "covers"; visualize its ever changing form; visualize the manner in which it attempts to control social space; and more. (Graphically, see the cover to Midnight Notes #5.)
6.1 From The Perspective Of Deals
Within the manifold it is quite evident that much of the political/human activity (struggle) we saw earlier can in fact be classified or described as the making or breaking of deals. It is also evident that much of this activity is defined by previously made deals(but always within the context of struggles). It is also quite evident that a large number of relationships and deals are predominantly defined by the Law of Value (see 7.2). We will leave these deals out of the picture for the time being. It is also evident that a subset of these deals plays a major role in interpreting old deals and the making and breaking of new ones: the role we have defined for the Law of Deals. It is also quite evident (when viewing the manifold from the perspective of deals and deal making), that all the institutions which we earlier defined as constituting the ruling apparatus are also in large part a product of human/ political activity defined by the Law of Deals as well as by other stage 1 deals.
6.2 The Law of Value As A Product Of Deals
We have up to now argued that. when one approaches the manifold of work from the Law of Deals perspective, the making, breaking and modification of deals are the basis upon which our struggles are advanced and defended. When we address or focus on the Law of Value from this perspective, it is evident it too is a product of our first stage deal with capital as well as a number of other very fundamental deals that were forced upon the class by capital. And so it begins to appear as if The Law of Value should also be included within the Law of Deals.
We (MN), however, have found it politically expedient to keep our discussions of the Law of Value separate from those involving other deals including those which make up the Law of Deals. The Law of Value, it must not be forgotten, is a "control device" which plays a very special role for capital as a basic means of imposing work and extracting surplus value. It may be said that it defines relationships involving commodities; At the very least, it has its own special dynamics and logic.
7.0 Different Sides Of The Same Control Grid?
When focusing on the Law of Value and its relationship to work (as commodities or non-commodities), the Law of Value appears to be the main mode of defining relationships in our struggles with capital. However, when focusing on the Law of Deals and its relation-ship to work (deals and non-deals), the Law of Deals also appears to be the main mode of defining relationships in our struggle with capital (at least at this point in history).
We suggest that these two perspectives are not antithetical to each other. If anything, they reflect the true relationship between the Law of Value and The Law of Deals - they are in fact different sides of the same control grid which are semi-autonomous from each other but at the same time very dependant on and interactive with each other. Each performs its own functlon, complements the other ( in a sense the image of the incompleteness of the other), incorporates the other in different forms (each particular juncture of struggle has its own mix) and arises out of the same manifold of work and included struggles.
8.0 The Law
Now that we have developed a general conceptualization of the relationship between work, the Law of Value, the Law of Deals and the ruling apparatus, we can focus on The Law (an institution separate and semi-autonomous from other institutions).
Focusing on The Law, clearly its function is to codify/interpret/mediate deals. It performs its role by, in effect, codifying and interpreting deals included (at any one time) in the Law of Deals and in turn using that to mediate/interpret/enforce all deals in general. It also attempts to use the codification/interpretation of the Law of Deals to define other non-deal relationships. The Law, in effect, functions as an institutionalized form of the Law of Deals.
In other words, it attempts to approximate deals and real society. (For a discussion of approximation, see Prologue: 16). The Law is thus a two-sided approximation, that of both reality and the abstraction from reality (Law of Deals).
It must not be forgotten that The Law is a "political" institution. It, as an institution, is a product of struggles between capital and the class. Its role is that of interpreting/codifying deals (products of struggles) and then using it to interpret/mediate/enforce deals and other activity (our present struggles). And finally, The Law itself as an institution is continously an arena of struggle (personell, ideology, procedure etc.).
8.1 The Limits Of The Law
As an attempted approximation (see 8.0) of the Law of Deals, The Law has many limitations.
To begin with, it is unable to interpret/codify all the deals that are included in The Law of Deals at any one time.
Second, its own process of interpretation/codification is a product struggles (both inside and outside the institution) and thus it never performs its "stated" role perfectly. Again, depending on the struggles outside of The Law and within The Law, at times, it performs its "stated" function more "fairly" or more "perfectly" than at other times. ("Fairly" and "perfectly" have only political meaning.)
Third, its ability to interpret/mediate/enforce deals and other activities (at times) is limited by its ability to codify/interpret deals in the Law of Deals and the fact that only a small percentage of all possible struggles under capital (never mind all possible human activities are "covered" by deals.
9.0 To Be Continued