Law and the Rise of Capitalism

Tracing the roots of modern capitalism way back in 1184 AD, the book Law and the Rise of Capitalism by Michael E. Tigar and Madeleine R. Levy gives a lucid and vivid account of its growth through more than eight centuries - not in a linear but in a zig-zag way. The “rule of the bourgeois”, a necessary and logical fallout of the historical process of growth of capitalism, in general, is also ‘a gradual historical process in itself’, as the book puts it, punctuated frequently by sudden and violent upheavals. The writers correctly point out that “the dialectical way in which history moves precludes strict linear development”.

Contrary to the present-day popular approach, more prevalent among those adherents of Marxism who are identified as ‘Maoists’, the writers insist that the “law does matter”, rejecting the contrary view, which denies the role of law as an instrument influencing the course of social change, as ahistorical. The book expresses a consistent view that ‘legal ideology’ could be and has been deployed by dissident currents “to advance their own agenda”. It reminds that there remains a potential conflict between formal guarantees of freedom and fairness, so much sworn by bourgeois legal ideology, on the one hand, and the objectively existing crude state power of bourgeois rule, on the other. Convincingly it says that, “some of these contradictions were resolved in the past in favour of ideology and not the power”. “Law”, it concludes, “is not simply a mask the state puts on when it is about to commit some indignity on the oppressed”. Here is put a word of caution against exaggeration of the role of law and legal ideology in historical development and social changes, when the book claims – “An alternative to capitalism was not going to be found in law books”. An objective and balanced approach thus finds its way in the conclusion of the writers – “The only way to understand the role of legal ideology was to study its operation in history”. Themselves doing so, the authors successfully identify the main elements constituting bourgeois legal ideology in two great bourgeois revolutions – English and French – focusing upon the seventeenth and eighteenth centuries. Their research later takes them back to the eleventh century when the first urban uprisings, that were forerunners of the later successful bourgeois revolutions, had begun to take place. These uprisings claimed nothing more than some space ‘within’ the power structure of broadly feudal societies. Though the transition from early uprisings of city dwellers to later bourgeois revolutions has taken place within the four corners of nation-state, it rather claims for itself the universal arena for its existence and recognition. The principles proclaimed by the victorious bourgeois revolts were betrayed and even dismantled under the rule of the bourgeoisie itself in the following centuries. Yet these principles, embodied in the bourgeois legal ideology, definitely have a universal or at least a trans-national character and application; for example, the law relating to human rights, which has been elevated to the status of a ground norm in judging the character and conduct of a certain national government. The authors entertain no misconception or doubt that these principles in legal ideology, have often been made instruments by those holding state power to advance their own agenda, but the major part of the debate is in favour of the people resisting oppressive regimes.

‘Legal ideology’ is thus seen and elevated by the authors to the stature of a ‘weapon’ ready for use in the hands of those struggling for emancipation of mankind from all kinds of oppression and exploitation. Studying history as a sequential chain of events, where definite legal systems are targeted and overthrown by those declared outlawed – thus emerges an entire branch of unofficial legal philosophy that the authors call – ‘jurisprudence of insurgency’.

Very rightly, the authors claim, “The history of social change is one of people moving to make change”. They suggest – “We may use legal ideology, just as we would use other forms of struggle, to ameliorate this or that onerous condition, we can also show just how inadequate the legal forms might be”.

Be that as it may, law and social development go hand in hand, reflecting as such in definite legal systems. These legal systems cannot be strictly identified with particular stages of social or historical development but they can be broadly categorised as such.

The book is more investigative and less analytical. The dominant content of the book is thus a descriptive account of various stages of development of capitalism – from early merchant capitalism, considered to be the most degraded social category of its time, to modern-day finance capitalism with universal respect and popular recognition at its command but with an all-time reactionary role. In this review, we have to bypass this vivid description, touching only upon the contours of interrelationship between law and social development in general and growth of capitalism in particular. And interestingly the book reveals from the sources of its investigation that though bourgeois law in itself has appeared not before 16th century in Europe, the struggle of the bourgeoisie against the feudal legal systems dates back five centuries earlier to that. The bourgeois campaign continued from the times of ‘holy crusades’ in Europe to the entire period of ‘renaissance’. It thus took eight centuries of such campaigns aimed at victory to elevate the bourgeois legal ideology to the state of ‘law’ – a system of rules backed by the force of state machine.

The book discusses various ancient legal institutions, prominently Roman law, informing us that the Roman legal system created between the fifth century BC and second century AD is not the oldest legal system in world history. Other legal systems existed even before, like the Athenian legal system, but unlike earlier systems the Roman law had left a rich and diverse legal literature. The authors also mention how in order to get social sanction for these state laws – for the Roman law – divinity was pressed into service and the origin of Roman law was claimed from pious ‘twelve tables’. With ‘Debt Contract’ and ‘Civil Wrongs’ at the helm of this law, it was later burdened with countless charters and deeds of customs called ‘Customals’. The Roman law was then succeeded by feudal law, then Catholic law/canon law. Royal law, Merchant law and ultimately by what bourgeoisie called it – natural laws: the authors see the special and crucial role of the holy crusades in the bourgeois remaking of the Western Europe. According to them, these crusades combined two objects – firstly, to make the holy land a safe haven for western merchants and, secondly, to keep the restive, violent and socially unproductive class of soldiers, knights and nobles out of the way.

Anyway, through the crusades and then during the Renaissance, capitalism had continued to blossom, making dents in the feudal structures of entire Europe, striving for total control of state power, demolishing the feudal legal systems and replacing the same with its own. The authors argue that this march of the bourgeoisie, trampling down feudal regimes initially and fighting against revolutionary upsurge more recently, is neck-deep in blood.

The authors see the bright side of the bourgeois legal system, given the role of popular movements in the conviction of general Pinochet of Chile and release of Nelson Mandela from prison, though in its entirety the bourgeois legal system and bourgeois ideology in its varied forms is not capable of meeting the demand of justice and this legal system is coming into conflict more and more with the proclamations of its own ideology.

The authors, giving an account of classical and modern-day legal theories, come down heavily upon positivists who refute their own past – the history of bourgeois revolutions, the hard truth about the assuming of power by the bourgeoisie through most violent upheavals against feudal legal systems and overthrowing medieval regimes and their order by the crude force of arms. The authors criticise the positivists for their deliberate denial of historic facts, and for giving an ahistorical, false and superficial interpretation of law, focusing on the concrete present tense character of power. While the first edition of this book, according to the authors, had focussed upon private law, the second edition focuses upon public law also. Especially, the afterword to the book has been immensely helpful in shifting such focus.

In essence, the main tone of the book is to study the development of capitalism, through ‘the jurisprudence of insurgency’. This means in a gradual process, full of upheavals, overthrowing the feudal legal systems, wiping them out here in one stroke, there in parts. The decline of feudal legal systems, in the face of offensive capitalism, paved the way for the emergence of the bourgeois legal systems. It emphasises that all legal systems, in essence, are inseparably linked to a particular class and emerge as state institutions with the political victory of that class, only to decline and vanish at a certain stage of history as that class loses its historic role and is overthrown by another class, which is to play its revolutionary role on the stage of world history.

The authors advocate that instead of rejecting the field of legal ideology, instead of abandoning the same for the misuse of the bourgeoisie, the hostile bourgeois legal ideology, as well as the conflicting character and actions of its concrete state institutions, should be taken head on and the struggle in legal ideology should become a permanent task.

--Rajesh Tyagi