In the absence of a general working class movement, bourgeois law has come to give grace to the immigrant worker. It presents itself as the only way forward for the demoralized and terrified immigrant who has come to this nation out of necessity and where they find themselves entangled in social relationships foreign to them, insofar as the form is different from their place of origin, and who naturally harbors suspicion towards these apparatuses. This is no coincidence; the immigrant worker more so than their native counterparts, have become subject to the more intensive exploitation by the domestic capitalist class who ruthlessly look to accumulate profit at highest rate possible, undercutting domestic workers by entrapping immigrants who can more easily be relegated to intense work in industries paying low wages, conditions which the bourgeois State and its legal apparatus maintain. The law, or the legal relationships that define present capitalist society, has its basis solely in the interests of the class of wage labor exploiters and finance parasites, thus any judicial movement must jump, prance, and somersault into these beloved courts of the exploiters and seek their sympathy.

Its omnipresence seeps into the plethora of experiences of the immigrant worker facing the State apparatus, from judicial proceedings, immigrant hearings, and deportation cases. It can be seen in the news on immigration policy updates, the billboards of immigrant lawyers, and current cases in the grand supreme courts that set the norm for all within the boundaries of the United States. To what degree should workers pay attention to these proceedings? What does it entail for the current horizon of the unmobilized worker’s movement? For the small minority of militant workers? The fact of the matter is that little can be done at this stage besides clarifying the matter. Not because we wish so, but by the lucid fact that the class is largely inert and atomized. However, it will be through this clarity that will inform the future struggles of the immigrant workers, who have the capacity to be the most militant element, as shown through historical experience, and who have upon them the great hurdles of overcoming the inertia of class defeat which can be gained to some degree through their struggles to protect their interests, but alongside this path will be the old and developed forms of class containment- reform and legalistic channeling. This series of articles aims at investigating the legal form, historical conditions, and rights that are “granted” to immigrants- a subsection of the broader working class.

Background

Pashukanis’ The General Theory of Law and Marxism (1924) is a work developed in the last episode of class struggle following the 1917 revolution, one which laid a materialist investigation of the legal relations by expanding on Marx’s understanding of the legal form which arose with the rise of bourgeois society in contrast to the bourgeois theories of law like those of John Locke with ‘natural law’ and Hans Kelsen’s “positive law” which reflect the two episodes of the rule of capital. The former maintained a connection between the legal relation and the principles of the new historical class which justified itself by ‘reason’ or its philosophy of justice against the feudal order. On the other hand, the latter saw legal relation as a science that sees itself solely concern with the practice of law and cleave itself from the philosophy of justice with its ‘irrational ideal’ or ‘judgements based on emotional factors’ including the social reality of law which aim at looking at jurisprudence as what it is. This reflects the two periods of bourgeois society, the first ‘natural’ law was the epoch of the bourgeois revolutions as this class attacked the order of the feudal aristocracy envisioning a break of the relations impeding the development of individual property and capital - i.e. capitalism with it came new forms of understanding how to manage society including law. Once the bourgeois order had stabilized at the end of the 19th century, the investigation of the law form was relegated to justifying the social relations it had ushered and the maintenance its State apparatus including its judicial arms to simply practicing law since it had no other class to attack for supremacy, just the proletariat to subjugate. Pashukanis’ seminal work ought to be read by those inquiring into the legal developments of bourgeois society still dominating today. It is Marxism’s response to bourgeois ‘legal positivism’ by investigating the legal relationship outside the narrow limits of jurisprudence connecting the law form with the social relationship integrating the historical character of law and tying it with the elements of bourgeois society, particularly commodity production. In fact, it is this connection that closely ties the legal relations to commodity production that would eventually come in conflict with the Stalinist counterrevolution’s theory of ‘Socialist’ and ‘Proletarian’ Law’, which eventually got its author purged in 1937. While recognizing the class character of law, it would be hostile to the assertion that law as a historical form will cease to be, just like the State under communist society for the elimination of commodity production removes the social basis for the necessity of exchange-based value and the necessary legal framework to assume such economic activities. Thus, ‘socialist’ law found it better to base itself on the legal positivism of the bourgeoisie, obtaining a ‘normative’ character that serves the general norm of a commodity producing society based on wage labour.

Law: Historical Manifestation of Social Relations

The atom of the law form begins with the subject, a peculiarity within a commodity producing society as Pashukanis notes in The General Theory of Law and Marxism (1924).

He states that idealists “start with some general idea and develop the concept of the subject, i.e. in a purely speculative way, dogmatic jurisprudence uses this concept in a formal manner. For it, the subject is nothing more than ‘a means for the legal qualification of phenomena from the perspective of their suitability or unsuitability for participation in legal relations’”. In contrast, materialism asks the question of how man becomes a legal subject. The legal form of the subject which is bound by historical conditions. Therefore, one begins with looking at the social relations which in our era is the society of commodity producers, whose outward manifestation is the commodity, an object that besides its utility carries with it the language of exchange or simply value-social labor embodied.

In this world of commodity producers, mutual recognition of the rights of private proprietors rests on the economic relations between commodities, as embodiments of human labour and through mutual acts of exchange between equivalents. It is only through generalized bourgeois exchange relations that the concept of general rights can manifest. Prior to this development, in the limited, autocratic feudal economy, with commodity production taking a secondary role in production, rights were confined to the collective or groupings of men in association such as guilds, estates, cities, etc. They manifested themselves as privileges conferred within those collectives and recognised in the individual in so far as the extent of their activity in the associations. That is, the medieval right was constrained to the social organisms, not to the subjective individual. Only when commodity production was generalized, a home market developed and each individual producer engaged through this economic relationship of exchange and where the labour of man was elevated to equals on the general social sense (i.e. value) could rights extend beyond the narrow confines of feudal economic ties.

Law as exercised in our modern society, a legal authority of the State and its dominant class, produces the guarantees of peace necessary for exchange and transactions of capitalist society. Its public nature lends it a mask of justice which its general will means but the impersonal interest of the bourgeois class. This universal character which aims to paint justice as fair and equal to all citizens is but the legal reflection of a society of independent producers who relate to one another as producers of commodities. Thus the framework of law stems from these objective conditions that exist outside the legal confines of the judicial system. Therefore, it is not a contradiction that economic inequality exists outside the logic of the law so that we may find the worker and capitalist are both equal under law with rights. The social relation of labour and capital is never questioned but guaranteed under jurisprudence.

In fact, law or jurisprudence just like the State vanishes under the negation of the labour-capital relation that is communism. The basis of its upholding, commodity production, turns the legal form into a husk, as soon as production comes under the control of humanity and is geared to satisfy life’s wants behind a collective plan. This is because like the State apparatus which is used to exert the social power of one class over another withers away under the proletarian dictatorship once the bourgeoisie stops existing as a social class, relegating its oppressive duties to the dustbin of history. Law in a similar form vanishes as the legal relationships of subjects stemming from exchange value and individual proprietors are historically eliminated.

For workers, whose economic position deprived them of the tools, land, materials, or means of production, they possess nothing but their ability to work or their labour-power. Their rights are recognized as bearers of this commodity and in the bourgeois legal sense it is this quality that is recognized. But class domination goes beyond the official arena of State authority, as Pashukanis notes. It includes the “dependence of the government on banks and capitalist groups, workers dependence on employers, and a staff of the State apparatus personally connected with the ruling class” which escape the legal expression in clear terms. If in the beginning of the 20th century the material expression of class dominance was multifaceted, today it has taken grotesque forms with an a gross increase in the entanglement between the financial sector and the State apparatus, open corruption and financing of political parties (e.g. AIPAC), integration of unions into the State for legal recognition as guarantees of labor peace. Under these conditions, legal norms often come in contradiction with the objective social reality of capitalist economy so that it is often the case that the practice of law is entirely out of touch with reality. To investigate the current court battles in the supreme courts regarding the attacks by the capitalist class against the immigrant worker, it is not enough to limit oneself to the judicial theaters that have the pretension of solving the class contradictions, but to the economic reality plaguing the United States of an abundance in labour-power.

[To be continued]