Althusser and Law

Laurent de Sutter, Laurent de Sutter

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135071936
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Althusserand Law is the first book specifically dedicated to the place of law in Louis Althusser's philosophy.The growing importance of Althusser's philosophy in contemporary debates on the left has- for practical and political, as well theoreticalreasons - made a sustainedconsideration of his conception of law more necessary than ever. As a form of what Althusser called 'Ideological State Apparatuses', law is at the forefront of political struggles: from the destruction of Labour Law to the exploitation of Patent Law; from the privatisation of Public Law to the ongoing hegemony of Commercial Law; andfrom the discourse on Human Rights to the practice of judicial courts. Is Althusser still useful in helping us to understand these struggles? Does he have something to teach us about how law is produced, and how it is used and misused? This collection demonstrates that Althusser's ideas about law are more important, and more contemporary, than ever. Indeed, the contributors to Althusser and Law arguethat Althusser offers a new and invaluable perspective on the place of law in contemporary life.

Chapter 1

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The threat of the outside
Althusser's reflections on law

Warren Montag

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Only now, more than 40 years after its publication, has the absence of an account of law from Althusser's essay ‘Ideology and the Ideological State Apparatuses’ become visible as a problem, that is, as a determinate and perhaps determining absence. If for a long time the very absence of law from this, Althusser's most cited text, was itself overlooked, the oversight was at least in part conditioned by the conjuncture in which it was written and the powerful and often delayed effects produced by the struggles that constituted this conjuncture. In the period after 1968, the concept of law was subject to a ferocious critique. The law, understood as hovering insubstantially above social reality, was the site of illusions: notions of equality and right that were purely formal, that is, fictitious, not only at odds with but actively concealing the realities of subjection. It appeared, as Foucault argued in Discipline and Punish (1975), a text that perhaps more than any other codified the diverse intelligence gathered in the course of the assaults on the existing order following May 1968, that the greater the real inequalities of force, the more numerous the practices that, through a coercion that was always physical even when it was subtle, worked to diminish the power of the popular masses, the more numerous and impressive the rights ostentatiously granted to them and ‘guaranteed’ by legislation. This was a time when a political focus on the state and its laws appeared doomed to ignore if not conceal the ways in which the bourgeoisie ruled as a class (or even achieved a kind of dictatorship) through means of subjection whose existence belonged as much to the realm of civil society as to the state, to the private as to the public sphere and which accordingly proved as unintelligible as they were invulnerable from the perspective of a legality organized around precisely these distinctions. In fact, as Foucault would be led to argue in the lectures of the late seventies, class rule or government, understood as an activity rather than as an institution, might well operate more efficiently through a contraction than an expansion of the state and a constraint on rather than an intensification of its activities.¹ The state might declare a sovereign silence or even legalize and thus commit itself to protecting actions that had once been illegal and punishable, such as the employer's right to raise or lower wages as he saw fit (or as the market, whose rationality no state could afford to ignore, dictated) or the landlord's right to evict tenants from land their families had worked for generations. Such forms of governmentality, as he came to call it, essentially abandoned a population to harsh forms of coercion for which the state had no responsibility and in which it could not intervene, because at issue were merely private matters between legal persons. At most, then, law served as a mask behind which a struggle for power was waged; its categories and the procedures by which conflicts between legally defined persons or entities were adjudicated certainly did not correspond to, let alone regulate in any meaningful causal sense, the real battles that raged most often unseen, only occasionally exploding into general visibility. It was here in the interstices of the law or in the vast reaches of its silence that the fight to bring a new world into being, a world precisely unthinkable in legal terms, took place. Moreover, in this new world without the private ownership of the means of production, and therefore without either the commodity form, or the category of the subject it implied, law, understood as the expression of property relations would, with the state itself, wither away.

The end of law: this notion, which is inevitably linked to another notion the rejection of which by Althusser provoked the charge that he was either a reformist or a Stalinist who didn't understand the radical transformation the socialist revolution would bring about or worse, sought to legitimize in theory the institutionalized counterrevolution that characterized Soviet Communism: ‘Human societies secrete ideology as the element and even the atmosphere indispensable to their respiration, to their historical lives. Only an ideological conception of the world could imagine societies without ideologies and admit the utopian idea of a society from which ideology (and not one of its historical forms) would disappear without leaving a trace and replaced by science.’² Althusser would add in the ISAs essay that ideology has no history because it has an omni-historical existence, like the unconscious according to Freud. Specific ideologies have histories, including moments of emergence and cessation, but ideology in general can have no beginning or end. To associate ideology with the unconscious in this way is to make intelligible not the finitude of the human subject understood either individually or as a collectivity, but rather the contradiction proper to the production of knowledge the development of which is marked by the simultaneous generation of adequate ideas and the obstacles that block or obscure them, as if the very object of knowledge generates the particular forms of its own opacity. The contradiction between insight and the blindness proper to it is inescapable and its always only provisional overcoming is constitutive of the process of knowledge itself. In every science, as Althusser wrote in Philosophy and the Spontaneous Philosophy of the Scientists, there lives the philosophy ready to exploit its findings for apologetic ends.

But there is another meaning of Althusser's refusal of what was in fact an article of faith in the Communist movement, namely, the conviction that the end of illusion would necessarily accompany the end of a social form that required illusions. It concerns the history of the very idea of the end whether understood as goal (telos) or limit (eschaton), a history rooted above all in Christianity, that the most irreligious Communism nevertheless could not entirely escape. The idea of the end of ideology in general is in fact functionally identical to the idea of apocalypse in the Greek sense, a final uncovering or disclosure of what had been hidden from sight which, we should note, meant that the law itself, delivered by God to men in their state of ignorance to guide them, would perish with their ignorance. If, for Althusser, there can be no end of ideology, can there be an end of law and how are these questions related?

To begin to address this problem I will turn to the precise textual forms in which the problem of law is dramatized in a particularly striking way, as if to call attention to the simultaneous (theoretical) necessity and (practical) impossibility of arriving at an adequate theorization of law for Althusser. I refer to ‘Ideology and the Ideological State Apparatuses’, where law makes its brief appearance in the course of Althusser's insistence that the problems that have continued to haunt Marxism, especially the problem of base and superstructure, can be adequately understood only from the point of view of the reproduction of the conditions of production (both the means of production and the relations of production). Further, the very notion of base and superstructure, whose importance in the practice as well as the theory of Marxism has led not only to grave errors but to political disasters, as the experience of the Soviet Union showed, was finally nothing more than a metaphor, a spatial metaphor to be precise, that served to describe rather than conceptualize the causal mechanisms that make societies what they are and more importantly determine them to persist in their existence. Adopting ‘the point of view of reproduction so that several of the questions whose existence the spatial metaphor of the edifice indicates may be clarified’, Althusser proposes (and I have preserved his capitalizations) ‘to analyze briefly the Law (le Droit), the State (l'État) and ideology (l'idéologie — in the lower case)’.³ In the remainder of the text, that is, in the body of the essay, he will observe the order of analysis as stated (an order that he neither explains nor justifies), with one crucial exception: the discussion of law neither precedes nor follows the analysis of state and ideology but has been omitted altogether from the essay as a whole; the next section is ‘the State’. It is difficult not to detect a symptomatic act here: Althusser has announced that what follows will begin with an analysis of law that the reader discovers almost immediately is neither where it was supposed to be in the order of the argument nor in fact anywhere in the entire essay. He has thus marked it as necessary to his argument even as he has omitted or removed it without any explanation or comment other than to preserve the word ‘law’ in an otherwise very carefully edited version of the original manuscript, as if to prevent its absence or rather excision from going unnoticed.

If we consult Sur la reproduction, the longer manuscript from which the ISAs essay was extracted, we find not only that Althusser does indeed follow the order he established and that a chapter entitled ‘Law’ (‘Le Droit’) precedes the discussion of state and ideology, but even that he spends some time at the conclusion of the previous chapter on infrastructure and superstructure explaining the order of exposition: law, state, ideology.⁴ In both texts he emphasizes the fact that the superstructure consists of two levels or instances: ‘the juridico-political (law and the state)’ and ‘the ideological’. In the earlier text alone, however, does he attempt to explore ‘that singular couple designated by our expression juridico-political; we need to account for the hyphen (trait d'union) that unites law and the state in the expression juridico-political and ask precisely what we can and must think in order to justify (or call into question) this hyphen’.⁵ Readers familiar with Althusser might well assume that the question of the unity of law and the state concerns the immanence or transcendence of one term in regard to the other and that in a text in which it is argued that ideology always exists in an apparatus, law would be posited as having no existence apart from the materiality of the state apparatus, and of the repressive apparatus in particular, the police, prisons, courts, etc.

It is surprising then to read that the unity of Law and State is not only not that of mutual immanence, but that, as Althusser himself points out, he has employed a mode of ‘expression that puts law before the state’, in an order, whether logical or chronological, whose legitimacy must be questioned. After all, ‘we need to ask whether it might be more appropriate here to put Law after the state’, or more generally ‘whether these questions of before and after, far from be...