The relative autonomy argument acknowledges some independence for law. Through the process of abstraction, law extinguishes the memory of its social origins or defines them out of existence. It then assumes formality, generality and autonomy. The autonomy is only from the preferences of the social actors and not from the social system or the mode of production; hence it is relative. This is, however, enough to make the law mobile and/or able to reproduce itself in countries with similar or different social structures.
2.3.1 Althusser and the relative autonomy argument
Although Althusser never singled out law for analysis in its own right, the notion of relative autonomy of law has, more likely than not, gained currency among social scientists (especially those of Marxist bent) as a result of his sustained efforts to operationalise Marx's conception of the social totality^. As may be noted, contrary to
Proudhon's consideration of economic relations together with an ideological system (or limbs of the social system) "as so many social phases", i.e, "so many separate societies, following one upon the other", Marx had argued that these "production relations ... form a whole" (see The Poverty of Philosophy, 1847). In Grundrisse (1858), Marx further maintained that this whole is an "articulated-hierarchy".
It is this totality - articulated-hierarchy - that Althusser (1970: 97) presents as a
unity of a structured whole containing what can be called levels or instances which are distinct and 'relatively autonomous’ and co-exist within this complex structural unity, articulated with one another according to specific determinations, fixed in the last instance by the level or instance of the economy.
This "articulation in the whole", Althusser argues, precludes the reduction of the "relative independence" view of the levels "to the positive affirmation of an independence in vacuo, [or] even to the mere negation of a dependence in itself" (Althusser, op. cit: 100). In his "Ideology and Ideological State Apparatuses" (1970), he elaborates on this articulation in terms of the respective "effectivity" of the "levels" or
"instances".
According to Althusser, the 'social whole’ is constituted by "the infrastructure, or economic base (the 'unity' of the productive force and the relations of production) and the superstructure, which itself contains two 'levels' ...: the politico-legal (law and the State) and ideology (the different ideologies, religious, ethical, legal, political, etc.)". This entity engenders a dialectic in which "the 'floors' of the superstructure are clearly endowed with different indices of effectivity". And, this effectivity, ultimately, yields to the "determination in the last instance" by the economic base. In other words, "if they [i.e. the floors] are determinant in their own (as yet undefined) ways, this is true only insofar as they are determined by the base".
In this elaboration, there is uncertainty as regards the link between the base and the floors. This is all the more so as the effectivity of the 'floors' in terms of "a 'relative
autonomy’ of the superstructure with respect to the base” and "a 'reciprocal action' of the superstructure on the base" remain "as yet undefined".
As an attempt to overcome the spectre of "economic determinism" hanging over Marxist theory, Althusser's formulation has not emerged with much clarity. Engels (1890) appears more accessible in his assertion that:
The economic situation is the basis, but the various elements of the superstructure - [politics, law, ideology] - also exercise their influence upon the course of the historical struggles and in many cases determine their form in particular. There is an interaction of all these elements in which, ... the economic movement is finally bound to assert itself (quoted in Cain and Hunt, 1979: 56).
It is, however, arguable that Althusser's formulation marks the beginning of the contributions from social sciences to the "relative autonomy" argument in the law and society debate.
Despite the lack of clarity, Althusser's formulation marks, in the words of Hindess and Hirst (1977: 5), a "retreat from the consequences of economism" when Marxists were, allegedly, forced "to recognise a complex field of social relations inadequately comprehended by the classic Marxist theories of the economy and politics" (Hirst, 1979: 1). Soon after the publication of Althusser’s work, Poulantzas (1973: 255) came to apply the concept of "relative autonomy", along with "unity of power", to the analysis of the capitalist type of stated The concept had quickly become firmly established in social scientific discourse.
2.3.2 Balbus and the relative autonomy argument
Although Balbus (1978) embarks upon a project different (arguably, in form but not in essence) from Althusser's, his work is probably the most handy illustration of an extended application, to law, of the relative autonomy argument.
^ See Gulalp (1987) for a summary of the development of the concept of "relative autonomy" vis-a-vis capitalist power relations.
The problem which Balbus addresses in his Essay is "why a specifically legal form of the exchange of people is inextricably intertwined with a specifically capitalist form of the exchange of products" (p.74). Put simply, why is the legal form homologous to the commodity form?
By tackling this problem, he expects "to outline the essentials of a Marxist theory of law" which
entails a simultaneous rejection of both an instrumentalist or reductionist approach which denies that the legal order possesses any autonomy from the demands imposed on it by the actors of the capitalist society in which it is embedded, and a formalist approach which asserts an absolute, unqualified autonomy of the legal order from this society
(PP73-74).
In other words, it will be a Marxist theory of the "relative autonomy" of law which transcends the object captured by intrumentalist-formalist debate.
Here, I will not take issue with Balbus' reduction of the "legal theory" debate of "at least two hundred years" to a "Marx vs. Weber" affair, except to say that the debate has certainly more participants than Marx, Weber and their "followers". That is to say, if Balbus means that "intrumentalism" (of the Marxist type) and "formalism" (of the Weberian type) exhaustively cover all the nuances of this debate, I cannot agree.
It is instructive also to note the deficiencies of those two approaches which Balbus points out. On the one hand, the instrumentalist approach "fails even to pose the problem of the specific form of the law and the way in which this form articulates with the overall requirements of the capitalist system" (p.74). On the other, even though the formalist approach does specify the form of law, it precludes its ability "to conceptualise the relationship between the legal form and the specifically capitalist whole" by treating "this form as a closed, autonomous system whose development is to be understood exclusively in terms of its own 'internal dynamics'" (ibid).
It is from this position that Balbus begins to draw the parallel between "the logic of the commodity form" and "the logic of the legal form" and relate both to the relative autonomy of law. Whereas he could readily lift the "logic of commodity form" from the first chapter of Marx's Capital Volume 1, he has had to reconstruct the "logic of the legal form" from Marx's fragmentary treatments of law in about five works. In the end though, he is able to demonstrate that in a capitalist order law assumes the form of "the universal political equivalent" by representing qualitatively distinct (different?) individuals as equal citizens. This parallels the process in which money (in relation to qualitatively different commodities, made equal) assumes the form of "the universal economic equivalent".
More importantly, law, in this form, extinguishes "the memory of different interests and social origins", i.e. it "defines distinctions of interest and origin out of political existence". By and large, law assumes formality, generality and autonomy. This, then, leads to 'legitimation' in which law's "claims or pledges [of equality, for instance] are valued in the first place” and to 'fetishism' in which "individuals attribute subjectivity to the Law and conceive themselves as its objects or creations".
In this guise, Balbus concludes, law acquires the guarantee to exist, function and/or develop "autonomously from the preferences of social actors ... [but not] from the system in which these social actors participate". In other words,
the autonomy of the law from the preferences of even the most powerful social actors (the members of the capitalist class) is not an obstacle to, but rather a prerequisite for the capacity of the law to contribute to the reproduction of the overall conditions that make capitalism possible, and thus its capacity to serve the interests of capital as a class.
This conclusion re-echoes Unger's (1976: 80) view, without its "naturalist" flavour, that
insofar as human law seeks to participate in the character of the higher normative order, it too must be represented as relatively autonomous from the desires of human sovereigns and from the customs of particular societies. ... Its rules ought to have a measure of critical independence from politics and custom.
More significantly, it is my view that this conclusion essentially restates Althusser's arguments to the effect that the conception of a relative autonomy of law does not amount to the "negation of a dependence in itself". The primacy and influence of the modes of production are not called into question in the conclusion. Suppose we turn Althusser's arguments into an abstract proposition: "the dependence of each 'level' within the set of articulations of a capitalist society produces and establishes a mode of
relative independence of that level as its necessary result"^. Most probably, Balbus' analysis of the link between law and capitalist order would occur to those familiar with it as a concrete application of this proposition. It may well be argued that the extinction of the law's own social origin, as demonstrated by Balbus, is a condition for, or product of, the effectivity, this floor of the superstructure, as in Althusser's formulation.