by Ramakash Gujuluva Suryaprakash.
As a student of law, a typical introductory class begins with these simple questions: a) what is the law; and b) what is the relevance/need of law. While it is difficult to define the term ‘law’ with precision, students generally come up with various opinions as regards the latter question. Some believe that law is necessary to prevent arbitrariness; some advocate that law has social utility; some promote the concept of rule of law, arguing that when nobody is above the law, it prevents the concentration of power. Law as a tool to regulate the interaction among people has been in existence since time immemorial; it could have been in various forms. But what makes law so prominent in the last few centuries? Even if the utility of law is subject to diverse opinions, can it be explained through a single framework? At least on a broader scale? A basic reading of Weber helps one to link the growth of the system of laws to the rise of capitalism. But is it possible to explain the different types of law and its relevance through certain indicators of capitalist values? This short piece tries to build a framework to analyse the law as a tool to prolong the capitalist mode of production and argues that law, while manifestly promises to be neutral as regards different classes of society, has a latent function to promote the existence of capitalism. A preliminary objection arises as to the relevance of laws in purely socialist/supposedly communist countries. Then, this framework tries to fit in all the laws except those consciously made to shift to a strictly socialist mode of production. It is however submitted that this framework tries to accommodate the different sets of laws that are common across all jurisdictions.
Firstly, what I primarily focus when I refer to the capitalist mode of production is that it is composed of; i) economy as the dominant paradigm to determine the status of a nation; ii) the profit-motivated businesses of any form and trade govern this economy and iii) it is composed of, at least on a broad scale, two opposing classes i.e. the bourgeoisie (owns the means of production) and the proletariat (the working class). It is true that with regard to the former, alternate methods to evaluate the status of a country exists and that with regard to ii), not all forms of businesses or corporations are motivated by profit. With regard to iii), a society cannot be strictly divided into these two classes. But these factors, I suppose, constitute the basis of the capitalist mode of production, though other factors also persist. Secondly, every country has legislations that are socialistic in nature; for e.g. minimum wage laws, social security measures and the like. However, what I mean by strictly socialist laws refer to those that are strictly antagonistic to the capitalist mode of production, such as, say the abolition of private property or confiscation of land or setting limits to ownership of property. Such laws rarely exist and they are outside the scope of the framework that would be expounded below.
Weber argues that one of the non-economic factors that were central in the shaping of capitalism was the “development of a system of law” (Morrison, 2006, p. 290). The laws were independent of the aristocracy which held control over trade and commerce earlier and these laws provided “predictability” and “calculability” (Morrison, 2006, p. 293). For e.g. suppose that there were no laws regarding maintenance of money in banks and that they could arbitrarily provide interest for the money deposited. Such a situation creates unpredictability and thus reduces trust in the system. A system of law governing the working of such bank ensures that the investor knows how much interest she would obtain for the money deposited and the recourse that she needs to take if she were not to be credited with such interest. Thus, the system of law ensured certain prediction and it was common to all the investors; it created trust in the institution. Thus slowly, the law became the basis for governing relations between people, people and institutions, and institutions and institutions. This is probably what Henry Sumner Maine refers to when he says that progressive societies evolve from ‘status’ to ‘contract’ (Maine, 1861, p. 168). Thus, it is clear that law is the basis for governing relations. To understand the relevance of law through the framework that I am to suggest, I would put forth a postulate and then fit in a certain set of laws into this postulate. I would then raise a question which would seemingly contradict this postulate. This would bring me to the next postulate. A culmination of this exercise would establish the framework that I intend to discuss.
The first postulate is that every law, in some manner, safeguards people so that they could contribute to the mainstream economy. This is not only restricted to laws governing business or trade but other seemingly general laws such as, say, criminal laws. It might be a far-fledged statement but let us analyse some provisions of the Indian Penal Code (IPC). Section 302 of IPC provides for the punishment of murder. What is the need for such law? One good answer might be that it is intended to punish those who kill another and to maintain peace in society. But, let us think in this manner. If a person is killed, then it amounts to the loss of a person who could have contributed to the economy. Take the example of laws that prohibit theft. There is no difference in law between one who steals for her necessity and who steals for her greed. However, there is a lot of difference between the two when we compare them based on the reasons for their actions. Nevertheless, stealing as a phenomenon is punished because it amounts to a loss to a person who contributes to the economy. Similar justifications could be given for other laws that exist, such as protection of property. The abolition of female foeticide, the support given to the differently-abled through different legislations, human rights etc. could be explained in this manner. Consider a law that provides that nobody must keep to themselves the profit that they have exploited. Such a law inhibits the contribution to the economy and thus would probably not last long. When women for long were prevented from entering the mainstream economy due to patriarchal norms, why did law provide them with the space to work? That too after industrialisation began? Through this postulate, it can be easily reasoned that the addition of women meant a larger workforce i.e. more people contributing to the economy. The laws favouring women is to ensure that they continue to contribute.
Now let us consider this well-known fact situation. During the early period of industrialisation, workers were subject to long working hours by the industrialists. The workers revolted through strikes and other means and thus restrictions were imposed to the labour hours. It reflected the tensions between the existing classes. When viewing this phenomenon through the lens of the first postulate, it certainly seems contradictory to some extent. A law limiting labour hours, when viewed in isolation, certainly means a reduction in the contribution to the economy. This brings us to the second postulate that, laws tend to preserve capitalism. It is to be differentiated from a claim that laws tend to favour capitalists. For e.g. consider the above owner-labour dispute. If the status quo ante were to be preserved, i.e. no change in the working hours, the conflict between them would have heightened and it would have led to social unrest. It might have turned violent, and could have even lead to a revolution. Laws such as the Factories Act, 1847 which restricted labour hours could be analysed in this angle. If such law was not passed, capitalism as a mode of production could have been under real threat. The various social security legislations that tend to benefit the labour could be explained through this reasoning. Davidov’s (2007) exposition on the changing nature of labour laws could also be justified through this view.
Consider the various recent reports that reveal that climate change is real and threatens human existence. For e.g. the Intergovernmental Panel on Climate Change (IPCC) revealed that the world is not doing enough to limit the average temperature rise to 1.5°C and that “major and immediate transformation” is required to limit warming (Levin, 2018). Clearly, capitalism is at threat, if such major and immediate transformation requires that we make major alterations in the way we produce commodities. Thus, capitalism would amend its ways to accommodate this reality by passing laws or devising schemes protecting the environment without radically altering the mode of production. Thus, the anticipated laws favouring protection of environment could also be explained through this framework.
What about laws that prohibit differentiation based on caste and religion? How do we justify laws that favour reservations or affirmative action? What about laws that protect sovereignty? Clearly, the answers to such questions can be explained only loosely with postulate 1 and remotely with postulate 2. The answer to the former questions lies in the historical context which a particular country has passed through and hence I do not wish to generalise it using any postulate. Nevertheless, the former questions posed above could be answered in relation to capitalism, the reasoning of which could be included within the framework. It is to be noted that capitalism is primarily based on a profit motive. A purely capitalist economy does not require other relations such as casteism or feudalism or even patriarchy in order for it to function and sustain. Thus, when contradictions arise due to such production relations other than those capitalistic in nature, it is possible that such relations cease to exist. For e.g. the relatively increasing acceptance of LGBTQI+ community, the breaking away of patriarchal norms, the growing irrelevance of caste is reflective of this explanation. As caste or/and a community-based distinction is not relevant for a capitalist society, there is a possible scope of its withering away and thus laws that abolish caste-distinctions would not invite much opposition. However, caste and patriarchy are an irrelevant reality in Indians. If it were to be left unchecked, it would not be possible to eliminate them. Thus, affirmative action and reservation laws, which intend to wither away such relations unnecessary for capitalism to survive, could be analysed in this manner. Regard must also be had to Namboodiripad’s analysis of Indian society, who argues that, unlike the advanced capitalist countries which grew out of the “ashes of pre-capitalist societies”, in India, capitalism was ‘superimposed’ on the pre-capitalist societies (Namboodiripad, 2010, p. 30). This is the reason why these relations, such as caste or religion or patriarchy, are still quite strong in India and this angle of reasoning provides greater justification to the relevance of these laws. With regard to the latter question, i.e. laws relating to sovereignty, it could be argued that the division of the world into different countries is unnecessary and irrelevant for capitalism to thrive. It is indeed true to a great extent. However, the division into different countries reflects one of the basic principles of economics that is a central feature of capitalism; i.e. competition. It ensures that each country competes among each other on different parameters, thus improving on the counts of efficiency and benefit. Nevertheless, it needs to be accepted that division of the world into states is not the only way in which capitalism can sustain. It is just one of the ways. It must also be noted that a world without borders can also be envisioned within the limits of capitalism, especially with the rise of MNCs and global free trade. Marx and Engels suggested this in their Communist Manifesto when they said, “The working men have no country. We cannot take from them what they have not got. Since the proletariat must, first of all, acquire political supremacy, must rise to be the leading class of the nation, must constitute itself the nation, it is, so far, itself national, though not in the bourgeois sense of the word” (Marx & Friedrich, 2017, p. 66).
The above postulates and reasoning might offer some basis to understand the relevance of legislations as well as the nature of law in itself. Some may feel that it is too narrow in scope; some may reject this line of thinking as too simplistic or biased. Nevertheless, at a broad level, this framework might hopefully be useful to some extent in better understanding laws.