Introduction
In Law and Marxism, Evgeny Pashukanis argued that the legal subject created by law is a mirror of the abstract individual under capitalism. The primary powers of this abstract individual are to enter into contracts with other, formally equal, individuals, and to own (and alienate) property.
This has important political consequences that we shall discuss elsewhere, but a key question that arises is whether – and to what extent – the theory applies beyond the immediate context in which Pashukanis articulates it (the law of contract). China Mieville makes an explicit attempt to do so in Between Equal Rights: A Marxist Theory of International Law. I take Alan Norrie’s Crime, Reason and History, likewise, to be a Pashukanist account of criminal law.
To be sure, Pashukanis is never mentioned in the 415 pages of Crime, Reason and History. To be equally sure, Norrie is well aware of Pashukanis, having – separately – written a defence of the commodity-form theory. An important point that Norrie makes towards the end of his defence is that with the rise of welfare states in the mid and late-20th century, “capitalism is moving away (but not very much) from an abstract appraisal of the individual as the possessor and seller of a commodity,” and that the “state has ‘overreached’ the legal form as an expression of commodity exchange, without at the same time having transcended it.” This, Norrie argues, does not require an abandonment of Pashukanis’s General Theory, but “a development of the important insights in it.” Crime, Reason and History, I believe, is an attempt to do so, from the specific lens of criminal law.
Crime, Reason and History is a genealogical and critical account of the evolution of English criminal law (and, by extension, the criminal law of the commonwealth). As with any other field of the common law, criminal law is made up of a constellation of concepts: motive and intention (mens rea), recklessness, strict liability, acts (actus reus) and omissions, causation, necessity, self-defence, and so on. It also rests upon a series of binaries, such as offences and defences, justifications and excuses, and so on. Norrie’s method is to begin with a set of theoretical premises about the origins and evolution of the criminal law, and then to test the application of these premises to each of these concepts and binaries.
Criminal Law and the Abstract Individual
The theoretical premise is set out in the Preface: that the shape of the major criminal legal concepts that we are familiar with today “stemmed from the ideological form of the abstract juridical individual at the heart of modern legal theory.” (p. xxii) In the early 19th century, when these concepts were taking root, philosophers, legislators, and legal reformers posited the idea of the “free individual” (p. 21) at the heart of legal discourse, “responsible for his actions” (p. 25). A corollary of the free individual was the abstract individual: this idea of freedom was abstracted from the actual economic and social contexts within which real people were embedded, and the class conflict that structured society. In essence:
For the reformers, the world was constituted by separate individuals operating in the consensual context of the market and the law. They did not recognise in their theories that these individuals came from particular social classes, and that therefore the market and the law were sites of conflict. Individual ideological abstractions triumphed over bitter social realities, but the realities did not thereby obligingly disappear. Instead, they crept into the margins of the reformers arguments as unreconciled or untheorized “problems” for the project of reform. (p. 27)
What this ensured was a fundamental tension in the heart of the criminal law, just as its buildings blocks were in the process of construction: that is, legal principles were shaped by “the law’s need to maintain its categories of individual responsibility in a world where actions are socially structured and conditioned.” (p. 30) This tension would spill over into legal doctrine, in that even as formal criminal law took as its subject the abstract “free” individual, shorn of social context, and in doing so, “obscuring the world’s realities,” those realities themselves would keep “impinging upon law.” In brief:
Illustration: Motive and Intention
The most obvious – and intuitive – domain in which this is visible is the law of intention and motive. In my first week at law school, in a course titled “Legal Methods,” our instructor set out the definition of “theft” on a slide (“…whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking…”), and then asked us whether a starving seven-year-old boy, who took a loaf of bread without paying for it, was guilty of “theft.” This exercise was meant to serve two purposes: a severing of the moral and legal senses that is so essential to the modern legal education, and the first introduction to that cardinal principle of criminal law which is driven into all students: for guilt under criminal law, intention matters but motive does not.
Norrie interrogates this facile distinction, arguing that “the attitude that motive is irrelevant to responsibility and the guilty mind has deep roots within the common law tradition, and is linked to the social conflicts of the period in which the law was developed.” (p. 44) There were two reasons for this separation: first, to negate precisely the kind of justification that our first-year instructor presented to us – i.e., that (economic or social) need could be a basis for law-breaking. But secondly – and more interestingly – the separation performed the task of:
… squashing of alternative definitions of right and wrong. The poor might not just claim an absence of malice, but the positive existence of rightful or good motive on their side … the ruling classes sought a universal definition of right and wrong that could legitimate extremely dubious processes of property expropriation of the poor by the rich. It was the political success of these classes in forcing their will upon the lower classes that ensured that the legal reformers could express the rules of a legal system which were the product of sharp social conflicts in terms of consensus and good common sense. The rule of private property became the ‘rule of law’, so that attacks on the former could be condemned as attacks on a universal social good. (p. 45)
This is, of course, reminiscent of E.P. Thompson’s famous account of the “moral economy of the crowd,” where he noted that the late-18th century food riots in England were spurred by the people’s moral sense of what should be a fair price for grain (especially in lean years), which was opposed to the economic logic of price-setting through supply and demand. While this is an obvious example, another – very relevant – example is given by Patrick Atiyah in his famous book, The Rise and Fall of the Freedom of Contract. In this book, Atiyah noted that until the late-18th century, contracts were commonly believed to be illegitimate if they did not conform to external, normative standards of fairness and justice. In the early-19th century, this was replaced by the idea of the “freedom of contract,” according to which if two autonomous, “freely” consenting individuals entered into a contract, its terms were fair and just by definition (this account, of course, abstracted out the social differences of power between the contracting parties that impinged upon their substantive freedom to determine the contractual terms).
We can therefore already begin to see fascinating overlaps between the evolution of criminal law, the evolution of contract, and the evolution of capitalism in early-19th century England, with indications of how the third informed the development of the first two, in a very Pashukanist manner. In other words:
The law’s content, the protection of private property and particular social interests, structured its form, a narrow conception of individual fault, from which evaluative, morally substantive questions were erased. (p. 46)
And:
… assertion of irrelevance of motive within criminal law doctrine precisely allows the courts to treat essentially political issues (apparently) apolitically, while claiming to respect the individuals who come before it. (p. 50)
However, as Norrie goes on to observe, in order to maintain its legitimacy, law cannot entirely separate itself from the world in which it operates. The world would, ultimately, leak back into law. When it came to intention and motive, Norrie points out that this happened in two ways. First, “motive” was a relevant consideration for sentencing. Judges could exercise their discretion at the stage of sentencing to go easy on people driven by need or desperation. Judges, thus, could give some effect to the “moral economy” – however, crucially:
Discretion in sentencing – what counts for good or bad motive is not left at large in the community: it is kept politically safe with judges, far away from the noise and conflict of the world outside. The social mores of the ‘common people’ are mediated, for good or ill, by the judges’ perception of them. (p. 56-57)
And secondly, the world came back in through the concept of intention itself: for example, the idea of “indirect intention.” To go back to the seven-year-old boy in the legal methods course, you could either cast his intention as being to “dishonestly” take the bread away, or you could cast it as mitigating his own hunger. Or, in a case of passive euthanasia, my intention in removing life-support could be cast as an intention to take life – or an intention to ease pain. Norrie notes the evolution of cases where judges were forced to tie themselves up in ever more complicated knots when dealing with “direct” and “indirect” intention, and makes the crucial observation that, ultimately, the source of doctrinal tension and inconsistency lies in the fact that:
We are dealing here with the evolution of a particular legal model of responsibility that was devised to exclude or marginalise difficult or contested moral issues from the law and the courtroom. The problems of motive and intention, or direct and indirect intention, stem from this earlier period’s separation of legal judgment from substantive moral issues. Since the technical approach to responsibility was founded on a desire to evade moral issues, it is not surprising that it has such difficulty in dealing with them when they arise today. Modern law is caught in a necessary, structural dynamic of excluding and re-admitting substantive moral issues into a technically conceived set of fault categories. The conflict between ‘orthodox subjectivists’ and ‘moral substantivists’ we have highlighted reflects this dynamic of inclusion and exclusion. (p. 72)
The intention/motive debate is perhaps the easiest to grasp in Norrie’s terms, and that is also why I have devoted substantial space to it here. In the subsequent chapters, Norrie brings the same analysis to bear on questions and concepts where it might not be quite so easy or intuitive. What emerges is the following argument:
- Prop 1: The concepts of criminal law were established at the same time that capitalism was being established. This was a time of social, economic, and political conflict. Criminal law attempted to exclude this conflict from its doctrines, and establish a unified normative vision, based on the abstract, “free” individual legal subject, shorn of their social or class position, acting in a universe made up of other abstract individual free legal subjects. This also served to shore up the existing property distribution under capitalism, and immunise it from challenge.
- Prop 2: However, as law cannot be entirely divorced from reality, these social and political conflicts had a tendency of creeping back into the law. Criminal law would then try to accomnodate – while also marginalise and contain – them by relegating them to questions of “sentencing” or “policy” or – at times – a part of the extended understanding of the very concepts themselves.
- Prop 3: Much of the doctrinal mess, inconsistency, and internal tension within the criminal law can be understood in terms of this ongoing push and pull between what the law tries to exclude and what it is compelled to include.
Liberalism in Conflict
The argument reiterates and evolves in the course of the book. The debates around recklessness track debates about the differences between a moral and a legal consensus around what standard of care is expected in a society – and, more specifically, the industrialising society of the 19th century. For example, the treatment of deaths in factories, which “far exceed the number of deaths for which charges of homicide are brought, reveal that there are a substantial number of risks that are regarded as socially justified. Such risks are often taken by people with a high profile of ideological respectability and in ways that are ideologically constructed as justified.” (p. 100) Here, the moral and legal consensus threatens to come apart – something which, then, later theorists of the law of recklessness (sometimes) attempt to accommodate by positing an account of “practical indifference” that is informed by a “moral community-based conception of individual recklessness.” (p. 101) However, this can only ever be partially successful at best, as it is based on a “social and legal order based on a structural conflict and violence.” (p. 101)
We see similar issues in the development of strict and corporate liability in the industrial age, notable – in particular – in the futile quest for determining a “directing mind and will” of a corporation, an enquiry which includes the fundamentally social nature of corporate wrongdoing. We also see these issues arise in the law of causation, where the distinction between a “cause” and a “background condition” is based on “a variable evaluation of what is ‘normal’ in social life; there is an essential fluidity here.” (p. 176)
Another particularly interesting discussion takes place in the context of omissions. Again, when we think back to our legal education, this is something drilled into s from the beginning: if I am walking by a lake and I see a child drowning, I have no legal obligation to rescue them, and I cannot be held criminally liable for my failure to act, even though it is morally blameworthy. To be held criminally liable, the argument goes, would be to open up a parade of horribles where I could potentially be held liable for failing to act against starvation deaths in country X, or Israel’s genocide in Gaza. As Norrie argues, however, there is an underlying ideological basis to this thought experiment, and that is:
In a world in which ‘structural’ or economic injustice and violence associated with poverty and discrimination prevail with consequences in terms of life and serious injury to body and mind, it is necessary to draw a tight line around criminal omissions. Their scope is narrowly fixed by virtue of the use of a ‘contractual’ model which affirms the existence of a duty to act only where a prior commitment has been declared. (p. 139)
Or, in other words, this is a worldview that rejects the “interconnection between wealth and poverty, the ways in which the rich acquire wealth at the expense of the poor” (p. 157) and refuses “to imagine relations and duties between people save on the narrow basis of a cash or contractual nexus.” (p. 157) Thus it is that we come circling back to the contract. The figure of the abstract juridical individual isthus “employed both to construct individual fault in the law of acts, and to delimit the boundaries of fault in relation to the law of omissions.” (p. 169) In other words:
… the form of agency has been stripped down to the most basic component of individual life: to a narrow, technical form of individuality which excludes the possibility of a broader moral or socio-political content being expressed through it. (p. 169)
The same principles also apply to the putative defence of necessity, where you see a number of cases involving conscientious objectors, especially in the context of property damage or civil disobedience in the interests of preventing (often outwardly-directed) state violence. Think, for example, of the ban on Palestine Action in the United Kingdom, where the argument that property damage is undertaken in service of the morally and normatively overriding goal of preventing a genocide is simply not admissible as an argument because, as Norrie notes, such an argument would form the “basis for an alternative, politically substantive, account of ‘the facts’ to enter the courtroom and to challenge the law’s formalistic defence of the political and economic status quo.” (p. 215) Nonetheless, the defence of necessity has to be kept open, in order to allow for that moral residue to be not entirely excluded from the law’s consideration (something that is necessary, as noted above, for the law’s long-term legitimacy).
A final corollary: Norrie notes that while the device of the abstract juridical individual is a mechanism to mystify social relations, when applied clearly and consistently, it does also serve as a defence of the individual against the overbearing state (by ring-fencing intention, causation, acts, and focusing on individual responsibility). Here, one may recall E.P. Thompson’s qualified defence of the rule of law – that because of its language of universalism, and in order to prevent turning into a complete sham, there are occasions when the rule of law can be used for the protection of those who would otherwise be at the mercy of raw state power. However, as Norrie goes on to observe, there are moments where this philosophy, in turn, comes into conflict with the criminal law’s other function of maintaining “social order”: and here, new innovations begin to undercut those very liberal premises that have long undergirded the law. Norrie’s discussion of the “preventive turn” – specifically in anti-terror statutes – will be quite familiar to students of Indian law, especially in a time where wide-ranging definitions of “conspiracy” are deployed to justify indefinite incarceration, without trial.
Indeed, one may even say that in India, we have the worst of both worlds: the liberal form of the criminal law applies with full force in excluding social context and social relations in determining questions of responsibility and liability (poor and otherwise marginalised people continue to be jailed in overwhelming numbers), and at the same time, that liberal form vanishes entirely when it comes to its protective function of preserving individual rights form state abuse.
Beyond the Criminal Law
Norrie sums up his argument admirable in the conclusion:
… psychological individualism … operates in two ways … first, it screens out a range of possible moral or political narratives for action that stem from the context within which individual operate. Within the philosophy of punishment, it was the abstract freedom of the individual that justified punishment retributively … and it was the contradiction between the ideal image of the free individual and the social reality of poverty that undermined the theory, leading to its historical downfall. Enlightenment-derived ideology legitimates punishment on the basis of individual responsibility … but in order to do so, it must ensure that the individual be ‘sealed off’ from the social relations which give rise to action. Within the criminal law, it is necessary for the practice of attributing fault to individuals that this abstract form of individualism be maintained through a variety of doctrinal mechanisms. The criminal law operates with a form of psychological individualism, and this central ideological form involves a constant work of political closure to keep the social context at bay … the second, related operation performed by this psychological individualism is the apparent depoliticization and de-moralisation of both the philosophy of punishment and the criminal law. (p. 366)
While Norrie’s book is a fascinating window into what a Pashukanist, commodity-form theory of criminal law might look like (and a genealogy of criminal law more generally), I think it is also valuable in that many of these ideas apply beyond the criminal law. Reflecting on my own field – constitutional law – I offer up a few exploratory thoughts.
First, much like Norrie’s account of criminal law, constitutions are born in times of intense social, economic, and political conflict, but seek to abstract that conflict out of existence. The most potent way of doing so is to be found in the first three words of most modern constitutions, “We the People…” In positing “the People” as a homogenous and unified entity – harmonious and shorn of conflict – modern constitutions are built upon the erasure of the class character of society, and deny the existence of economic or social conflict.
Norrie’s crucial observation, however, is that the exclusion is not watertight, and the moral and social questions will always find their way back in. To understand how this works, let us continue a discussion that we began in the previous post, that is, a study of socio-economic rights in modern constitutionalism. Now, you might intuitively think that enforceable socio-economic rights are the vehicles through which economic and social conflicts are brought back into the constitutional domain. Rights to basic goods that would seek to take them out of the domain of commodities, in their form, threaten to re-open the questions that closed off by the form of “We the People.”
However, when it comes to the question of judicial enforcement, courts tend to close those questions once again. Consider, for example, the right to housing, where progressive jurisdictions have held that the enforcement of such a right (and indeed, all socio-economic rights) are not meant to impinge on private autonomy (which is, of course, code for private property). Consider also the recent judgment in Kenya where further market entrenchment of housing (albeit under a state-run market) was held to the consistent with the right to housing, as it could be viewed as an incremental fulfilment of the right. In other words, judicial enforcement of socio-economic rights is limited to solutions that are capitalism-compatible, and do not disturb the fundamental assumptions of a constitution founded on the premise of “We the (abstract, decontextualised) People.”
I think that this also helps us to better understand the debate initiated in the previous post, which is whether such mechanisms in constitutional law can be thought of as an element of the Polanyian “double movement.” Norrie has an excellent term for the way in which criminal law deals with the re-entry of political and social conflict: a “conceptual sealant.” By this he means that the marginalisation of such questions to the domains of sentencing or policy or “exceptions” acts as a conceptual sealant “to prevent the leakage of questions about the context and value of conduct into the primary mechanisms of fault attribution.” (p. 142) Major judicial doctrines around the enforcement of socio-economic rights (progressive realisation, margin of appreciation, and so on), I would suggest, perform the similar role of the “conceptual sealant”: they prevent the social, economic, and political conflicts from entering into the heart of constitutional law by explicitly relegating them to the margins, where they can be dealt with safely and without upsetting the existing property structures (indeed, the Kenyan judgment on housing is an excellent example of this, not least because – rarely for constitutional litigation – the question was actually posed starkly to the court). And I would tentatively suggest that the doctrine of proportionality also acts as a “conceptual sealant”: while purporting to hold the state to a standard of justification, it ultimately engages in a process of abstraction and balancing that both admits the social and economic questions at the margins, but then also serves to exclude them through that same device of abstraction.
In other words, therefore, I would argue that Norrie’s account of criminal law is squarely applicable to constitutional law. Constitutional law is premised on a decontextualised and de-politicised idea of the abstract individual; this premise is frequently challenged by virtue of the realities of the world that we live in; constitutional law is then compelled to accommodate this reality, but it does so by boxing and cabining it into the realm of the exception, where it can be addressed without threatening the fundamentals of the propertarian order within which constitutions are embedded.
Norrie ends his book on a stark note: the praxiologies of criminal law – that is, the theories and forms of knowledge that reflect and legitimate criminal law practice – are “condemned to repeat the problems that the practices to which they are attached give rise because they cannot get beyond them.” (p. 381) The same, then, may be true for constitutional law: insofar as constitutional law, like criminal law, is premised on the abstract juridical individual, constitutional praxiology – through, for example, its doctrines of non-discrimination, SER enforcement, and so on – will only repeat and retrench the problems that is sets itself up to address, in different forms. And while that may be a bleak prognosis, it may also be a liberating one!
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