Mark Cowling, Marxism and Criminological Theory: A Critique and a Toolkit (Palgrave Macmillan, 2008), £50
Two periods of history have witnessed a serious and sustained Marxist engagement with the study of law. The first, not surprisingly, was in Russia in the years following the 1917 Revolution. The high point is represented in the work of Evgeny Pashukanis.1 By applying the method developed by Marx in his analysis of the commodity in Capital, Pashukanis argued that the legal form was itself an expression of relations of capital. His conclusion was that law would, along with the state, wither away with the advent of a communist society.
Tragically, Pashukanis perished in Stalin’s purges of the 1930s and his work was almost unknown outside Russia until the late 1970s. However, it remained an article of faith among Marxists that law was not a neutral concept. At best law represented a series of fictions behind which the reality of ruling class power continued to be deployed; at worst the law was an instrument of class domination, pure and simple.
The second significant period of Marxist writings on law began with an attack on this longstanding hostility held by the radical left towards law. In the closing pages of Whigs and Hunters EP Thompson argued that the rule of law represented a historical advance against the arbitrary exercise of power under absolutism. Moreover, the rule of law was “an unqualified good” that transcended social forms, be they feudal, capitalist or socialist.2 Law was a weapon that time and again the oppressed had looked to and wielded with success in their struggles. From being a shockingly unorthodox Marxist approach to law, Thompson’s defence of the rule of law became over the next two decades the received orthodoxy among Marxist legal academics.3 This, of course, was against the background of a generalised retreat by the working class and the left.
Unfortunately Mark Cowling’s Marxism and Criminological Theory continues in the Thompson mould by defending law, in this case specifically criminal law, as a transcendent and necessary form of social regulation. Cowling begins his defence of law from the pessimistic view that the possibility of a working class led revolution “can now be regarded as dead”. It is no accident that Thompson’s argument likewise begins with the pessimistic premise that “it is not possible to conceive of any complex society without law”.
Cowling argues that there are “crimes” that clearly reflect ruling class interests; a prime example is the way in which the US government has created a plethora of drug offences as part of a strategy, following the civil rights movement, to repress militancy within the black inner-cities. But equally, he argues, we cannot dismiss law in its totality as a tool of reaction, for how else can we explain the fact that many of the demands for civil rights were achieved by force of law?
But this can easily be explained by the fact that law must retain a certain appearance of balance in order to be effective as an ideological and not merely repressive tool of class power. Also this argument misses the key fact that in almost all cases progressive advances in the law reflect high points of extra-legal struggle, which are then incorporated into law as a mechanism for diverting militant action into constitutional dead ends. The plight of the civil rights movement once it had achieved many of its legislative aims and retreated from the streets is a case in point.
Cowling goes on to argue that there are crimes that have no role in the exercise of class power. These are what he calls “consensus crimes” that transcend social class as recognised harms, namely killing, assaults or taking other people’s possessions “without good reason”. How one can abstract a universal notion of a “good reason” in the context of a society based on exploitation and oppression escapes me.
To take just one example, does the nationalisation of a firm without compensation in the interests of protecting jobs constitute a “good reason” for depriving shareholders of their property? There is no one objective answer to this question, and there cannot be in a society divided between those who own the means of production and those who don’t. This is the ABC of Marxism. Indeed, the one thing that the law consistently seeks to avoid is any contextualising of cases beyond the law itself. Any discussion of motive (as opposed to mitigating circumstances such as self-defence, provocation or insanity), for example, is excluded in most jurisdictions in a trial for murder.
I have many other such disagreements with the book, but I believe that they are mostly related to some key methodological problems. First, he follows Louis Althusser in dismissing Marx’s early work on alienation as mere juvenilia. As István Mészáros has pointed out, to dismiss the theory of alienation is tantamount to destroying the foundations of Marxism itself.4 Further, it seems to me that without the concept of alienation one is left with the question as to why the oppressed accept law as an institution when it is so frequently used against them. Moreover, Cowling devotes just seven pages to a discussion of alienation, while immediately preceding this he spends eight pages weighing up the contribution of Charles Murray’s right wing theory of the underclass.
It could be argued that the reason the oppressed look to the law is that it is genuinely a neutral vessel within which a struggle for justice can be waged. Cowling clearly takes this view and is quite open in accepting the reformist conclusions it implies. Fair enough, but the idea that a political strategy that seeks redress primarily through legal constitutional means can be found in Marx, as Cowling argues, is completely false.
The second major flaw in this book, in any claim for it as a serious contribution to the Marxist tradition, is the almost complete absence of class struggle. Cowling discusses changes in the laws on homosexuality, civil rights, drugs, etc, without once mentioning the political struggles that led to these changes. For Cowling the working class is divided and passive and thus the idea of revolution is utopian. The best hope for social justice is trade union “campaigning”, lobbying by NGOs and social democratic reforms. Yet Marxism is nothing without the notion of the primacy of class struggle as the engine of progressive change.
This book certainly has some use as a survey of left literature on crime over the last hundred years. A whole series of authors and schools of thought are presented in easily digestible portions, which is useful as a starting point for academic research. But in no sense is this, as the title suggests, a serious account of Marxism and criminal law. Given the meagre tradition of Marxist writings on law this book promises much and delivers little. Anyone interested in pursuing the question of law in general would be better off starting elsewhere.5
1: Evgeny Pashukanis, Law and Marxism: A General Theory (Pluto, 1989).
2: EP Thompson, Whigs and Hunters: The Origin of the Black Act (Peregrine, 1977).
3: See, for example, Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights (Routledge, 1983); Christine Sypnowich, The Concept of Socialist Law (Oxford University, 1990); Alan Hunt, “A Socialist Interest in Law” in New Left Review 192; and Bob Fine, Democracy and the Rule of Law: Marx’s Critique of the Legal Form (Blackburn Press, 2002). Indeed Sypnowich states explicitly that the collapse of Communism means that socialists must accept the liberal tradition of the rule of law.
4: István Mészáros, Marx’s Theory of Alienation (Merlin, 1975).
5: Pashukanis remains the best application of Marxist analysis to the question of law in general. Alan Norrie, Crime, Reason and History (Butterworths, 2001), offers an excellent -introductory socio-historical account of crime.