The spectres of law live unrecognised amongst us. Now and again they appear publicly in full daylight: in decisions such as that in the case of Marbury against Madison before the US Supreme Court in the year 1803, when the court empowered itself to check the laws of the political sovereign for their constitutionality and where necessary to dismiss them; or again, a century later, during the Weimar Republic in Germany, when the Supreme Court of the German Reich undertook with its appreciation ruling of 1923, in a private law dispute, the reappraisal of mortgage debts against the explicit will of the legislature; or, once more, fifty years later in 1973, when the Federal Constitutional Court suggested in the Soraya verdict that there was a ‘surplus of law’ beyond the political constitution, and that it was the task of jurisprudence to ‘find’ and actualise it; and, lastly, in the jurisprudence on Fundamental Rights of the European Court of Law, which created European Fundamental Rights out of nothing and in doing so suggested that they had always existed.
But the spectres also reveal themselves in everyday legal practices, namely when those who, as enlightened citizens, should know their rights, in reality face what with regards to their legal concerns amounts to a secret science. There have been countless attempts to methodically exorcise those spectres or at least to decrypt them as politics in disguise. But that has not helped at all. We have not rid ourselves of the undead – because they have made themselves comfortably at home in the haunted castle of capitalist socialisation.
A theory of law that argues in the tradition of Karl Marx is often expected to unmask law in one way or another as a mere reflex of ‘the economy’. However, the aim of this study is diametrically opposed to this, as it starts with the notion that law is its own ‘base’.
Precisely this spectral, self-contained realm of the law was what fascinated and inspired me from the first semester of my legal studies, that is to say, the fact that law has a ‘normative self-determination’ (Habermas), or a ‘specific autonomy’ (Kelsen) – that law determines what is law (Luhmann).
How could a materialist theory of law do justice to this fact, without at the same time giving up the claim to reveal all social phenomena as such, in the sense of showing them to be based on the material living conditions of human beings? How to do the spectres of law justice, without doing ‘living labour’ wrong?
With his theory of fetishism, Marx himself mapped out the path towards such an analysis. One only has to think of the table which turns itself on its head, ‘and evolves out of its wooden brain grotesque ideas, far more wonderful than if it were to begin dancing of its own free will’.1 Materialist theory does not deny this ‘phantasmagoric process’,2 but traces it back to the relationships between people.3 Today the most advanced social theories agree that what is specifically social is the dominance of relations over people, and that therefore precisely the notion that society is formed by human beings, that it is humane, misses the concept of ‘society’4 and creates an obstacle towards understanding in social theory.5
Understanding what is incomprehensible, that is, the fact that people lose control of their own relations, involves explaining the situation in which law itself becomes its own foundation through social relationships. This is the motivation of my attempt at a ‘reconstruction of a materialist theory of law’.
In order to find those spectres, I have enlisted the help of a diverse range of theoretical approaches as well as my analysis of the practice of law. Above all though, my perspective has developed through discussions with people to whom I owe a lot, and whose ideas and critiques can be found in this publication. The present book is a revised version of my thesis, which was accepted in 2005 at the Department of Social Sciences at Goethe University Frankfurt, Germany, with its prestigious tradition. A theoretical practice shared with other critical intellectuals anticipates some of what I conceive of as a different, emancipatory form of the social division of labour; it represents a solitary and self-organised form of the public, coming together with the aim of shared knowledge production. That this was possible is due not least to the two reviewers of the doctorate. Josef Esser provided me a space of freedom within the still feudal structures of German academic life, and provided his support so that our shared approach to materialist theory could also be developed in the field of law. To Gunther Teubner I owe a precise demonstration of the blind spots that are invariably most discernible from another perspective, here that of systems theory. Through him I found a fascinating intellectual habitus, distinguished by its great interest in other theoretical explanations, and able to forgive with magnanimity even ‘youthful polemics’ against systems theory itself.
Andreas Fischer-Lescano also convinced me, with equal measures of rigour and humour, in varied, exciting discussions, that the Frankfurt School of the systems theory of law could rightly claim to advance a socially critical normative approach.
The book emerged from a context of state theory outside of academic institutions, associated with Stephan Adolphs, John Kannankulam and Jens Wissel. Our shared conversations over the years, as well as their solidary and original critique, left a significant mark on the publication in its present form.
I furthermore owe Regina Dackweiler my gratitude for her extensive comments as well as her intelligent methodological objections. They saved me from the worst fallacies. I also owe particular thanks to those who tirelessly read the entire manuscript with attention to consistency in terms of both content and language – Oliver Eberl, from the perspective of the radical democratic Kantian theory of law, and Julia König and Dietmar Flucke.
I owe many suggestions to Joachim Hirsch, from whom I learned a lot. Peter Niesen and Eva Hartmann provided convincing commentaries for individual chapters. Bob Jessop, Ingeborg Maus, Marc Amstutz, Rudolf Wiethölter und Hauke Brunkhorst, as well as the members of the Association for Critical Social Research, allowed me to present my ideas publicly and thus profit from their informed objections.
Ultimately it was to Henry Düx – to his committed and impressive practice of law and to the discussions arising from it – that I owe the idea for this study.
I also want to thank Friedhelm Herborth of Velbrück Wissenschaft for his support as well as the careful supervision of the publication.
I alone remain responsible for the spectres of error, which despite all efforts cannot be eradicated.
S.B.
Frankfurt am Main, August 2006