An uneasy compromise

A few years ago my publisher suggested that I write a book on sociology of law in Australia. My reply was that there existed far too little research to adequately deal with the topic. I therefore approached O’Malley’s book with a little bit of jealousy. He has written a book I would have liked to have written. It is a splendid first effort at drawing together ‘a sociology of law in Australian from the limited and disparate fragments of available sociological and related works’. Frequently the author has had to rely on British and American data but he has made excellent use of the available Australian data. One failure common to all of us working in the field of sociology of law is the lack of knowledge of work being done by others. Thus for example myself and other colleagues at the University of New South Wales were unaware of O’Malley’s project and it would appear that he was unaware of two of our own projects published in late 1982 – The Prison Struggle and Politics of Law Reform. It would be useful if Australian publishers could release a common list of projects that are underway. This may lead to a far better exchange of ideas and material than presently exists. O’Malley sets out the diverse theoretical positions that grew up during the 1970s under the label of the conflict approach to sociology of law. The three principal approaches are the Marxist, interactionist, and Weberian. The Marxist approach emphasises the basic role of the production order in shaping law and society. The interactionists see the social and legal order being created by the growth of interpersonal relations. The ‘realms of meaning and communication take on such importance for interactionism, neither the productive order nor any other specific area of social life has any particular priority in determining the nature of society. However, in common with Marxists, most interactionists argue that there is an uneven distribution of power resources which gives certain groups a considerable advantage in determination of legal order’. The Weberians see that property and market relations are very influential in determining the legal order but they combine this notion with their view that there exists a drive towards increased legal rationality under capitalism. O’Malley’s approach is broadly Marxist but he does use the other theories. Furthermore, he does not only look at current conditions through the lens of current events, but seeks explanations from the historical development of the particular institution. ‘Hence, in order to understand or theorise about the relationship between police, the state and the rule of law in Australia, it is necessary … to consider the political and ideological reactions to fears of a police state during the nineteenth century.’ O’Malley examines the content of law by looking at interest group theory, ruling class theory, and class law. He shows that the legal content is not directly formed by demands of the ruling-class or of interest groups. A contradiction emerges between ‘the requirement that the state in capitalist societies be formally democratic in its determination of the content of law, and the necessity for such a state to secure the maintenance and reproduction of the (capitalist) economy’. The policies of the state that oppose the reproduction of the capitalist economy will generate ‘the concerted and vehement mobilisation of the bourgeois class’ to the actions of such governments (e.g. Whitlam and Allende) and in such a state geared to capitalist production such a government will be unlikely to survive such opposition. The form of law is examined through the Marxist form of law theory and the Weberian concept of formal rational law. The latter is based on the notion that individuals in our society are feature less – they lack class, gender, rank, or property in the eyes of the law. Therefore all subjects are juridically equal and the contractual characterisation of social relationships form the law. The Marxist theory is similar in many ways but differs in that it places emphasis on the commodity form of law – the concept of exchange value. It is tied to the production relations while Weberian theory is tied to market relations. Under the Weberian approach the wage earner ‘freely’ exchanges his or her labour for money while the Marxist approach sees that the form of law helps to conceal the unequal nature of the exchange involved. Both theories are criticised as being inadequate when placed in the historical context and O’Malley says three types of influences must be considered. First, each of the various phases of capitalism determines in considerable measure the form of law. Thus the socialisation of production during the monopoly phase is eroding both the commodity form and formal rationality through inter alia the reintroduction of the substantive characteristics of legal subjects. Secondly, doctrinal autonomy must also be seen as having an important bearing on the legal form … With respect to the peculiar form of legal irrationality presented by case law, it can be seen exactly how English, Australian and American capitalism inherited this form which owes its particular nature and existence to medieval legal practice. Thirdly, specific historical variations in the development of capitalist societies will leave their mark on the legal form. The political and legal compromises farced on the Puritans after the English Revolution may be contrasted with the radical rationalisation of law and state resulting from the overwhelming victory of the bourgeoisie in the French Revolution. The differing outcomes of these revolutions help to account for the contrast between the forms of Anglo-Australian and Continental law. The sociologists have made numerous studies of the criminal law. O’Malley applies this abundant data in examining the police and policing and use of legal sanctions. The origins of the modern police force are traced. It was established to meet the needs of the new dominant class – the urban bourgeoisie. The use of the coercive crime-control strategies against minorities is discussed and how the police have avoided confrontations with members of the more dominant classes. The latter becomes quite evident not only by the study of court statistics but also by the way the police have exercised their enormous discretionary powers. The chapter on legal sanctions emphasises the role of state intervention and corporatism in the modern use of sanctions. Compared to the harsh sentences of the eighteenth and nineteenth centuries it would appear that the modern state has softened its coercive use of sanctions, but O’Malley sees this development in a more sinister light. ‘In all fields of law it may well be that we are witnessing the ideological sublimation of legislated punishment as it takes on new and disguised forms, ostensibly more palatable or “humane” but at the same time more pervasive.’ Mathiesen has described how the modern social democracies in Scandinavia have taken the rough edges off state coercion and replaced it with methods of making dissident elements pliable to the wishes of the state. One failure of O’Malley is not referring to the work of Mathiesen. The chapter on the legal profession accurately portrays the power of the profession – its role as the guardian of an ideology which has replaced religion as the unifying force in our society. The profession exercises tremendous power without being accountable because the state has granted it the power of self-regulation. Recent developments especially in NSW (the result of the enquiry into the legal profession by the NSW Law Reform Commission) to curb the power of the profession are largely ignored. Furthermore, the fragmentation within the legal profession ca used by leftist splinter groups (community legal centre workers, Australian Legal Workers Group, Labour Lawyers, etc.) and increased unemployment for new members is not thoroughly investigated. These developments ap pear to be leading to a decline in the power of the profession but O’Malley comes to the opposite conclusion. The discussion of legal aid shows how the profession’s public relations exercise that it is providing a community service is in reality a desire and need to increase the demands for its service. This is shown by the maintenance of high fees for legal aid services (eighty to ninety percent of their normal fees) and of the traditional lawyer-client – one to one model – serviced by private and not salaried lawyers. This model usually prevents the law from being used as a tool to tackle broader social issues. O’Malley fails to see that the profession has been losing some of its power over controlling legal aid funds. This has especially happened in NSW and Victoria where strong community legal centre movements have had their members placed in strategic positions in determining the allocation of the limited resources in this area. Many of these lawyers have a commitment to achieve consumer accountability and consumer control over the lawyers. Some steps have been taken in this direction. One of the main themes of the work is highlighted in two of the final chapters – adjudication and corporatist legality. Corporatism which ‘emphasises unity, harmony and technical rationality and invokes generalised state intervention in order to secure the organised cohesion of the social formation’ has led to dramatic changes to our legal order. These developments have made the adversary system more inquisitorial and bureaucratic (e.g. the decline of jury trials, the increased use of plea bargaining, and the removal of disputes from the traditional court system to administrative tribunals). It was thought that these changes would democratise the law, but instead it has increased bureaucratic power. In fact it is thought that we are witnessing the development of an ‘all-pervasive, all-powerful bureaucratic apparatus which minutely regulates every sphere of life’. But this vision is tempered by the fact that Australia as well as other capitalist democracies are powerless to control the actions of the transnational corporations. Furthermore, studies have shown that legal regulation and intervention by the state is largely ineffectual and has only a symbolic purpose in important areas of capitalist production (e.g. trade practices legislation, environmental law, tax law, etc.). Although regulation therefore appears to be an ‘empty gesture’ O’Malley says it is based on the inability of the state to oppose the organisational resources of the large corporations rather than being evidence of the systematic complicity of state officials. What has developed is a tripartite accord between big business, big government, and big unions to bolster up the ailing capitalist state. But this unity is an uneasy compromise between capital and labour and during periods of economic recession like the present time, it comes under increasing stress and at times breaks into open warfare. The Hawke government with its use of an economic summit and a philosophy of consensus instead of confrontation is trying to heal the wounds of the depression and lead us further down the road to corporatism. Perhaps we have the appropriate government for 1984. I’m sure O’Malley would agree.

Stan Ross

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