AMAR ES SANAR

In contradistinction to the pluralist argument of numerous foci of power or decision­ making, power elite perspective advances the view of concentration of power in single locations. When Vilfred Pareto introduced the concept of "elite" at the turn of this century, it was in terms of "those who score highest on scales measuring any social values or commodity ('utility'), such as power, riches, knowledge" (Pareto, 1901, 1968: 8). These individuals could be found in as diverse callings as in government, business, religion, and academia - some as conservators, others as innovators - with little to unite them on a course of action.

Later in the century this concept was operationalised by Mills (1956) in a way that tilted understanding from diversity and "individualism" to concentration of power. One

law who "were occupied mainly with sociological description of the actual state of law and the conflicts surging within its bosom ...".

^ While this effort is a significant "improvement" over the exegetical tradition in the study of law, it should be borne in mind that it remains, essentially, an effort at "broadening the study of law from within" [Twining’s "Some Jobs for Jurisprudence" (1974), quoted in Stewart, 1981: 115]. Nonetheless, it seems more profound than what Stone called "the lawyer's extraversion" in his The Province and

of the subjects upon which he focuses is the failure of the New Deal which, allegedly, was an attempt by the American Government "to check the power of private capitalism by creating competing centres of power" (Encels, 1961:5). Contrary to intention, Mills argues, "the corporate rich came to control and use for their own purposes the New Deal institutions whose creation they had so bitterly denounced" (Mills, op. cit: 272f).

The idea of concentration emerges clearly in the process through which the rich are said to assume dominance. In Encels' view, the corporate rich form a "power elite [by] the interlocking of a greatly enlarged state bureaucracy and the controllers of the big industrial corporations". This analysis of the process is similar to Mills' conceptualisation, although the implied scope of the membership is more restricted.

For Mills (1956: 278), the power elite is "a coalition of generals in the roles of corporation executives, of politicians masquerading as admirals, of corporation executives acting like politicians, ... of vice-admirals who are also the assistants to a cabinet officer, who is himself a member of the managerial elite". The strength of the military component of this group is further reflected by Mills' characterisation of American society as a system of military capitalism dominated by a "military metaphysics". As Encel (1961: 8) notes, it was "found in 1960 that the leading one hundred defence contractors employed no fewer than 726 former senior officers of the armed services".

A postulate that has become central to the power elite perspective is that there is "a dominant group in society achieving its political (and other) ends against the interests of other groups in society" (Tomasic, 1980: 28). With regard to law-making, the perspective holds that laws emerge from the demands of the interests of the powerful rather than the interests of the less powerful. This perspective is vividly illustrated by

the works of Richard Quinney, especially those written before his "conversion" to marxism^.

3.3.3(a) Quinney's contribution

To characterise pre-marxist Quinney as power-elitist in perspective, as suggested here, is to disagree with the established viewpoint; hence the need to justify my own view from the onset. Akers and Hawkins (1975:47) have argued that Quinney's formulation in The Social Reality of Crime: A Sociology of Criminal Law (1970) - one of the works which I will use to demonstrate his contribution to the power-elite perspective - "is essentially a 'pluralistic' model". How they arrived at this conclusion is not shown but this is sufficient to raise questions with my view.

My own characterisation benefits from Quinney's statements in the same work referred to by Akers and Hawkins. In that work, Quinney says: "Rather than accept the pluralistic conception of the political process, which assumes that all groups make themselves heard in policy decision-making, I am relying upon a conception that assumes an unequal distribution of power in formulating and administering public policy" (p.12). With specific reference to law, he similarly, but more unequivocally, states:

My theoretical perspective on criminal law departs from the general tradition of the interest theory of sociological jurisprudence in a number of ways... law is a result of the operation of interests ... [It] is made by men, representing special interests, who have the power to translate their interests into public policy. Unlike the pluralistic conception of politics, law does not represent a compromise of the diverse interests in society, but supports some interests at the expense of others (p.35) (emphasis, mine).

Such an affirmation would seem to move him unequivocally out of the pluralist tradition - a point to which his pre-1974 works bear strong witness.

19 Evidence of Quinney's post-conversion "marxian model of class domination" approach can be found in his Critique of Legal Order: Crime Control in Capitalist Society, 1974; Criminal Justice in America: A Critical Understanding, 1974; Class, State and Crime, 1977; and Marxism and Law, 1982 (co-edited

In Crime and Justice in Society (1969), Quinney attempts "a reformulation of sociological jurisprudence" by proposing "a sociological theory of interests". This theory (1) recognises "the unequal distribution of power and the conflict" within the "interest structure of society"; and (2) relates the formulation and administration of law "in politically organised society" to this conflict (p. v).

Guided by, or perhaps in demonstration of, this theory, Quinney provides a selection of other scholars' research on various aspects of criminal law. The studies of the formulation of criminal law are of immediate relevance here. They include Haskins’ "A Rule to Walk By"; Chambliss' "A Sociological Analysis of the Law of Vagrancy"; Sinclair's "The Law of Prohibition"; Sutherland's "The Diffusion of Sexual Psychopath Laws"; and Becker's "The Marihuana Tax Act" (see pp. 33 - 105).

In each of these studies, Quinney finds evidence to warrant such assertions as: "behind the formulation of all laws is an enterprising group that stands to benefit in some way from a particular law"; and "law is formulated and administered by the segments of society that are able to incorporate their interests into the creation and interpretation of public policy" - usually, the powerful interest groups (see pp. 5, 8 and 29, respectively). For instance, powerful interest groups - landowners and merchants - brought about the formulations and changes in the vagrancy statutes. For the law of prohibition (the Volstead Act), it was the "dry interest groups" - the "rural Protestant mind". Behind the sexual psychopath laws, stood "the occupational interests of psychiatrists". And so on. Quinney's view is that in each of these laws, the interests embodied are those of single power elites.

Using essentially the same materials, Quinney restates this power-elitist position in The Social Reality of Crime (1970). There he shows that "... criminal laws mark the victory of some groups over others. The notion of a compromise of conflicting interests is a myth perpetuated by a pluralistic model of politics" (p. 43). It is not clear how the analyses of some laws which he also introduces - especially, the "criminal laws in

colonies and territories", "Antitrust Laws", and "Pure Food and Drug Laws" - help to advance this position.

In relation to Antitrust Laws, for instance, the assertion that "in broad perspective, the interest to be protected in the law was the basic economic order of the nation" (p. 75) or that "antitrust legislation was formulated and administered by and for the interests of capitalist economics" (p. 77) appears too broad to distinguish his position from other conflict perspectives. Equally ambiguous is the claim that "the effort to control foods and drugs through criminal law is a demonstration of how the public interest may eventually be served in spite of the private interests of individual members of society" (p. 77).

How well Quinney accomplishes his objective of showing that "the interests represented in each [of the laws] are those of the social segments that have had the power to translate their values into social policy" (p. 50), is not my central concern here. What he presents as a single power-elite view could well be a pluralist perspective in which different groups are seen to prevail on different issues. It should, however, be beyond dispute, from the foregoing review, that his works locate the source of law in the interests of the powerful. These works exemplify the power-elite variant of the conflict argument within the social product model of law and society.