Law and the Settler State (Part Two) — Susan Dianne Brophy

[This is the second in a set of two posts on law and settler colonialism by Susan Dianne Brophy. The first post is available here.]

Marxist Legal Theory

As the platform for law’s moderating function, the logic of conflation constitutes the ideological framework of liberal democratic authority. The connective fabric that ensnares the subject and the individual in this self-validating relationship is a shared commitment to the maximization of autonomy in the name of self-serving order. At the heart of this view–that individual freedom necessitates juridical order–nests the ethos of self-maximization that informs free-market capitalism. If one chooses freedom, one necessarily chooses lawfulness; conversely, if one chooses lawlessness, one necessarily chooses not to be free. Marx and Engels refer to this as “the illusion that law is based on the will”. [1] By inflating the role of individual freedom in relation to law, the ultimate complicity between the individual’s interest (to be free) and the state’s interest (to have order) can be achieved in a way that sustains the social relations of a broader capitalist enterprise. What concerns me most, however, are those instances when the requisite entitlements of legal subjectivity are denied from the outset. On such occasions, the complicity between juridical order and individual freedom comes into plain view as a political problem. In this light, it is useful to ask “whose individual freedom most readily necessitates juridical order?”, and “how is this conflation manufactured and sustained?”

To be perceived as having a legitimate claim to freedom as a fully entitled legal subject, the individual must adopt a self-maximizing rational posture that invokes her autonomy in a way that coheres with state interests. But, of course, not all legal subjects within a liberal-democratic state are bestowed with the same entitlements. On this point, Evgeny Pashukanis remarks that the presumed universality of liberal-democratic “juridical categories” actually “express[es] a particular aspect of a specific historical subject [within a] bourgeois commodity-producing society”. [2] As such, it is worth taking a closer look at the ideological acrobatics involved in this logic of conflation and the exclusive brand of legal subjectivity that it promotes.

Given that the Western liberal-democratic state, specifically its legal apparatus, emerges when capitalist accumulation makes self-reliance a reality and self-governance a requirement for the nascent bourgeois class, it is understandable how liberal-democratic principles gain such wide currency. The primary obligations foisted upon newly propertied citizens are those that protect their autonomy. Consequently, juridical order in its liberal-democratic form is historically necessitated by bourgeois individual freedom, a type of freedom that corresponds to a particular version of legal subjectivity. An excerpt from Anne McClintock’s Imperial Leather exposes the self-serving and, most importantly, exclusionary nature of this brand of freedom. McClintock writes that “the heroics of a transcendent, illuminated, self-generating consciousness, unaided by anything but an emancipatory will to self-creation and an aesthetics of metamorphosis, is historically a nineteenth century middle-class idea, fabricated by a class anxious to create its own discourse of legitimacy”, pointedly adding that “[t]he middle class had to assert the freedom to create its being from its own self-generating energy”. [3] Proponents of this logic assume a formal equality of political and economic stature that, once reified through capital accumulation into actual political and economic power, is able to reproduce through the juridical order the bourgeois ideal of individual freedom for the purposes of its self-generation.

From an historical-materialist perspective, there are five key factors that help to explain how the complicity between individual autonomy and legal autonomy serves the concurrence of liberal democracy and capitalism. First, early liberal-democratic states are created “from within”; they are established by the territorially defined members of the bourgeoisie to serve certain interests according to their specific values. Because such a system of rule is not externally imposed, there is already a symbiosis between state interests and the self-maximizing interests of the bourgeoisie. [4] Second, these states emerge because of the irreconcilability of class conflict. On this view, state authority exercised through juridical order is in fact a testament to the impossibility of class reconciliation. Third, the perceived validity of a given juridical order is not an indication that class conflicts have been reconciled, but that the state plays a key role in managing class conflict. Concerning this moderating function of law, Lenin explains that “the state is an organ of class rule, an organ for the oppression of one class by another; it creates ‘order’, which legalizes and perpetuates this oppression by moderating the collision between the classes”. [5] Fourth, although state authority originates in society, it is also above society. In this context it is useful to think of the idea of law’s (relative) autonomy, which helps to “alienate” the state’s legal authority from society. [6] Fifth and finally, this self-alienation from society provides legitimacy to the state’s “public power”. As a power that “consists not merely of armed people but also of material adjuncts, prisons, and institutions of coercion of all kinds”, the official appendages of the juridical order instill themselves at a rank above society. [7]

From the above observations, we see that the established system of juridical order is a situated, directed, and calculated method of “moderating” class conflict. As the concept of moderation implies, the state’s juridical order is not one of strict edicts or one-dimensional domination. Rather, the state achieves order as much through “juridical illusion” and strategic concessions as through coercion. Evidence of the validating force of “juridical illusion” can be found in The German Ideology. As Marx and Engels chronicle nineteenth-century developments in regard to law, property, labour, and the state, they write that

[s]ince the State is the form in which the individuals of a ruling class assert their common interests, and in which the whole civil society of an epoch is epitomised, it follows that the State mediates in the formation of all common institutions and that the institutions receive a political form. Hence the illusion that law is based on the will, and indeed on the will divorced from its real basis–on free will. Similarly, justice is in its turn reduced to the actual laws. [8]

Marx and Engels’ attribution of an illusory dimension to law reveals a subtle, albeit ideological, facet of liberal-democratic state authority. It illuminates how the idea of free will nourishes the assumption of autonomy in the service of the juridical order. Certain passages in the first volume of Capital explain how this illusion fosters the interests of capital. Early in the text Marx hints at how the juridical illusion falsely equates individuals on an idealist plane, suggesting that the contract as a legal construct neglects material inequalities and, based upon this formalism, treats all expressions of legal will in kind. [9] This lends a gloss of legitimacy to the notion that the contractual relation can be fairly decided upon by the state in either party’s favour, which underscores a core ideological premise of capitalism: the contract brings equal and autonomous parties into a mutually beneficial relationship. [10]

Further, Marx explains how the ideological impulses that validate law also inform its capacity to moderate the antinomy between its capitalist (i.e. exploitative) and liberal-democratic (i.e. restitutive) functions. On the one hand, Marx reveals the exploitative–and explicitly colonial–facets of formal law’s historical development. He writes that “[t]he advance made by the eighteenth century shows itself in this, that the law itself now becomes the instrument by which the people’s land is stolen”. [11] On the other hand, Marx references the Poor Law Amendment Act of 1834 as one example of eighteenth-century welfare legislation that attempts to provide restitution to the most destitute in England. [12] Overall, as his study of the Factory Acts shows, the production and reproduction of the social relations necessary for capitalist growth are at various stages “aided by the power of the state”. [13] This is evident in the exploitative laws that directly served the interests of capital by first lengthening the working day, as well as the restitutive laws that then indirectly served the interests of capital by shortening the working day (a strategic concession offered at the behest of workers). Hence, there is a dialectical relation between exploitative and restitutive laws. Depending upon the social forces of the era, the law flexes in one direction or another as it moderates class conflict. In sum, what Marx highlights is the flexibility of state law, and he is careful to stress its responsiveness to prevailing social forces. I suggest that it is precisely this flexibility and responsiveness that is most evocative of the law’s moderating function, a function that occasions (at times conflicting) racial or ethnic modes of essentialization in order to secure the conflation of the state’s interests with the bourgeoisie’s interests.

Law and the Settler State

In the context of settler states, there are two common methods of moderating conflict in the name of a stable colonial order. [14] First, because they are the result of the growth and movement of European people and capital into already inhabited lands outside of Europe, settler states tend to seek internal stability by enacting control (through “varying levels of physical and cultural genocide”) over Indigenous peoples. [15] Second, settler states establish order by attempting to develop a unifying national consciousness through “varying levels of privilege, protection, rights and oppression accorded to, as well as contested by, migrant populations”. [16] Together, these are the two pillars of settler-state stability that are, at different points, dialectically served by the capitalist (i.e. exploitative) and liberal-democratic (i.e. restitutive) functions of law.

For a more anti-colonialist take on this scenario, I look to Frantz Fanon. [17] Fanon’s work offers a bridge between Marxist-informed theories of capital and the particularities of colonialism, as I take to heart his insistence that in the colonial context the binary between the capitalist and the proletariat is “inadequate”. [18] With a focus on how strategies of racial and ethnic essentialization play into the capitalist-colonial enterprise, I aim to reframe the study of early settlement in order to present immigrants not as “pioneers”, but as agents of colonialism deeply implicated in the displacement of Indigenous peoples. At the same time, I seek to understand these colonizers also as pawns in the hands of the settler state, as evidenced by the variability of their legal subjectivity. With Fanon, therefore, I attempt to grasp the contours of colonial subjectivity in a way that neither simplifies nor mystifies the complexity of law’s relation to life. Similar to how Fanon assesses the particularities of subjectivity with an eye on broader colonial imperatives, I can then examine the specificity of settler experiences as a commentary on the union between xenophobic prejudices and capitalist desires that feeds colonialism. [19]

Fanon writes of the “conventional” colonial state in decline, while I write about the colonial settler state in its expansionary phase. [20] Nevertheless, the warnings that Fanon issues in Les damnés de la terre apply. For example, Fanon is wary of the ease with which race- and ethnicity-based exclusions can be systematized into the legal fabric of state authority by a self-interested national bourgeoisie. [21] This is especially poignant in the Canadian context, as the historically ascendant bourgeoisie sought to take advantage of every growth opportunity before it. Keep in mind that most settler-colonizers were not subjects of the British Empire. [22] Unassimilated, they threatened the cultural sanctity and (especially during wartime) the physical and financial security of the emergent national bourgeoisie. In response, members of the dominant group were torn between the universality of the ideal of individual freedom and the desire to protect their class interests, that is, to have a growing consumer market for their wares and access to cheap labour as needed. It is in the service of these two aims that we see law’s flexibility on display. Primarily appreciated as conduits for capitalist expansion, the settlers’ role as consumers and exploitable labourers was variable but not without significance: it was essentially dependent upon the economic aims and social well-being of the self-interested national bourgeoisie, which, in turn, buttressed the juridical authority of the settler state. The image of a social and political sclerosis is how Fanon describes this short-sighted bourgeois society, a decadent order that instills authority in the state through the apparent justness of self-alienating processes and structures. [23]

On a deeper level, Fanon’s critique of the values of the Western bourgeoisie shapes much of my own thought. This is apparent in the arguments I offer against the idealist conflation of individual freedom and juridical order, which are evocative of Fanon’s wariness toward self-affirming bourgeois values and the type of narrow freedom they promote. [24] Importantly, Fanon is clear that it is not the ideals of liberal democracy alone that promote oppressive relations, but the intermingling of such ideals with capitalist objectives that instantiates relations of colonial exploitation. Individual freedom is thus not merely a liberal principle but also a bourgeois tenet. The bourgeoisie acts as its rightful custodians, summarily granting or denying it–or in the case of many early non-Anglo, impoverished settlers, dangling it before them like a carrot on a stick. Fanon provides my analysis with a conceptual framework to understand why some groups grab hold of the carrot while others mostly suffer the stick, and also to question, from the very outset, the implications of a blind coveting of the carrot.

This anti-colonialist line of questioning further benefits from contributions by contemporary thinkers influenced by Marx’s thought, such as David Roediger and Himani Bannerji. In particular, Bannerji’s feminist, anti-racist perspective on “‘hidden’ forms of class struggles” sharpens my attentiveness with respect to how dynamic social forces shape cultural identities in support of “hegemonic bids by different classes or political systems”. [25] Bannerji reminds us that “as the focus shifts from processes of exclusion and marginalization to ethnic identities and their lack of adaptiveness, it is forgotten that these officially multicultural ethnicities, so embraced or rejected, are themselves the constructs of colonial–orientalist and racist–discourses”. [26] By bringing culture and ethnicity to bear on colonialism and class conflict, a more concise account of how various social forces direct law’s moderating function is possible. Bannerji elucidates this point in her assessment of liberal pluralism and multiculturalism, which she sees as “an effective way of keeping communities separate and competing with each other”. [27] Her call to look beyond the divisive, self-maximizing pretensions of idealist autonomy informs the direction of this post. By moving away from purifying and mystifying accounts of law and life, I endeavour to comprehend their role in the building of the settler state as a means to scrutinize Canada’s colonial past and present.

[1] Karl Marx and Friedrich Engels, The German Ideology: Part One with Selections from Parts Two and Three and Supplementary Texts, ed. C. J. Arthur (New York: International Publishers, 2004 [1846]), 80.

[2] Evgeny B. Pashukanis, Law and Marxism: A General Theory, ed. Chris Arthur, 2nd edition (Piscataway, New Jersey: Transaction Publishers, 2007 [1924]), 70.

[3] Anne McClintock, Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest (New York: Routledge, 1995), 96.

[4] Friedrich Engels, “The Origin of the Family, Private Property, and the State” [1884] in Robert C. Tucker (ed.), The Marx-Engels Reader (New York: W. W. Norton & Co. 1978) 734, at 752.

[5] Vladimir I. Lenin, “The State and Revolution” [1917] in H. M. Christman (ed.), Essential Works of Lenin (New York: Dover, 1987) 271, at 274 (original emphases).

[6] Engels, “Origin”, 752.

[7] Ibid., 752–53.

[8] Marx and Engels, German Ideology, 80.

[9] Karl Marx, Capital: A Critique of Political Economy, vol. 1 (New York: Vintage, 1977 [1867]), 178.

[10] This is aptly expressed by Engels, who writes as follows: “[t]he proletarian is, therefore, in law and in fact, the slave of the bourgeoisie, which can decree his life or death. It offers him the means of living, but only for an ‘equivalent’ for his work. It even lets him have the appearance of acting from a free choice, of making a contract with free, unconstrained consent, as a responsible agent who has attained his majority. Fine freedom, where the proletarian has no other choice than that of accepting the conditions which the bourgeoisie offers him.” Friedrich Engels, The Condition of the Working-Class in England in 1844, With Preface Written in 1892 (Cambridge: Cambridge University Press, 2010 [1845]), 76.

[11] Marx, Capital, 885.

[12] Ibid., 888.

[13] Ibid., 382.

[14] Eva Mackey, The House of Difference: Cultural Politics and National Identity in Canada (Toronto: University of Toronto Press, 2002), 23.

[15] Daiva Stasiulis and Nira Yuval-Davis, “Introduction: Beyond Dichotomies–Gender, Race, Ethnicity and Class in Settler Societies” in Daiva Stasiulis and Nira Yuval-Davis (eds.), Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class (London: SAGE, 1995) 1, at 7. In many respects, this process is ongoing. Cf. Laura DeVries, Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law (Vancouver: UBC Press, 2011); Paula Sherman, Dishonour of the Crown: The Ontario Resource Regime in the Valley of the Kiji Sìbì (Winnipeg: Arbeiter Ring, 2008).

[16] Stasiulis and Yuval-Davis, “Introduction”, 7.

[17] To clarify I consider this an anti-colonialist and not a post-colonialist study, a distinction that turns partly on the nature of one’s interpretation of Fanon. An anti-colonialist approach tends toward more materialist–often Marxist-informed–analysis, which emphasizes the political acuity of Fanon’s writings as exemplified by his ability to link theory and emancipatory praxis. Conversely, a post-colonialist approach presents Fanon’s thought as conceptually limited by a tendency to assess colonialism according to a dichotomous logic (e.g. black/white or colonized/colonizer). It may also present his Marxism as a weakness, and may focus to a greater degree on the psychoanalytical rather than explicitly political aspects of his work.

[18] Frantz Fanon, Pour la révolution africaine (Paris: François Maspero, 1964), 89.

[19] In the balance of the original essay from which this post is excerpted, I carry out such a study with a focus on Ukrainian-Canadians.

[20] Stasiulis and Yuval-Davis distinguish between “settler societies” and “‘conventional’ colonies”, noting that the latter tend to maintain stronger ties to “metropolitan centres”, and again in the latter case, that the “imperial power has not rooted itself through settlement”. Stasiulis and Yuval-Davis, “Introduction”, 1–2.

[21] Frantz Fanon, Les damnés de la terre (Paris: François Maspero, 1962), 150.

[22] Canadians were exclusively British citizens until after the Second World War. The 1949 Canadian Citizenship Act introduced the legal category of “Canadian citizen”.

[23] Frantz Fanon, Peau noire, masque blancs (Paris: Editions du Seuil, 1952), 182.

[24] Fanon, Les damnés, 37.

[25] Himani Bannerji, Inventing Subjects: Studies in Hegemony, Patriarchy and Colonialism (London: Anthem Press, 2001), 8; Himani Bannerji, The Dark Side of the Nation: Essays on Multiculturalism, Nationalism and Gender (Toronto: Canadian Scholars’ Press, 2000), 3.

[26] Bannerji, Dark Side, 9.

[27] Himani Bannerji, Thinking Through: Essays on Feminism, Marxism and Anti-Racism (Toronto: Women’s Press, 1995), 13. In cementing the belief that Canada–specifically “English Canada”–is “a modern tolerant nation”, official multiculturalism entails “an ideological sleight of hand”. As a policy, it has been deployed as an attack on the primarily French-speaking province of Québec and its campaigns for independence, encouraging association of these objectives “with intolerance and racism”. Mackey, House of Difference, 15.

Susan Dianne Brophy is Assistant Professor of Sociology and Legal Studies at St. Jerome’s University, University of Waterloo.