Law and the Rise of Capitalism Law and the Rise of Capitalism Michael E. Tigar with the assistance of Madeleine R. Levy Monthly Review Press New York ACKNOWLEDGMENTS The first edition of this book, published in 1977, was written with the assistance of Madeleine R. Levy. I have taken full responsibility for preparing this second edition, and for writing the new material included in it. Work on the first edition was launched with grants from the Louis Rabinowitz Foundation, Carol U. Bernstein, and Stanley Sheinbaum. At Monthly Review Press, Harry Braverman believed in the book and supported its publication. The initial research for the first edition was done in France, England, and Ireland, as well as in the United States. Ms. Levy and I received assistance from professors, librarians and others in Nice, Oxford, London, Dublin, Berkeley and Los Angeles. For this second edition, I am grateful to John Mage, Andrew Nash, Martin Paddio and all the Monthly Review stalwarts. My students have also been very helpful, providing research assistance on several topics, particularly the early history of human rights litigation in the United States. My students and colleagues at the Faculté de Droit et de Science Politique in Aix-en-Provence have given me much assistance in connection with this edition. Dean Claudio Grossman and my other colleagues at Washington College of Law, American University, have helped in many ways. Consistent with the first edition, there are no footnotes. There is a bibliography to this second edition. In discussing Bentham, I relied on the work of Mark W Janis. Professor Martha Nussbaum's insights on the verifiability of norms have greatly influenced me. The bibliography also contains citations to some of my own work on the themes in this book. MICHAEL E. TIGAR WASHINGTON, D.C., and ANNAPOLIS, MARYLAND OCTOBER 2000 INTRODUCTION TO THE SECOND EDITION In writing about revolution and law, I have sought to move from specific events to general principles and trends. I am aware that "such is the unity of history, that anyone who endeavors to tell a piece of it must feel that his first sentence tears a seamless web." Pollock's and Maitland's cautionary words have guided, even warned, me. This book describes the rise to power of the European bourgeoisie, and traces its struggle against hostile legal systems. I argue that legal change is the product of conflict between social classes seeking to turn the institutions of social control to their purposes, and to impose and maintain a specific system of social relations. The most important task in studying legal history—or more accurately, jurisprudence in history—is to understand the content of competing legal ideologies and the interests from which they spring, to identify the groups whose conflict of ideology foreshadows revolutionary change, and to describe the working out, in the daily lives of men and women, of such conflict. The proper task of jurisprudence is to explain the mechanism of fundamental change in the rules of law which, backed by the power of the state, govern our lives. If we succeed in this task, we will understand the present system of law, and how that system must and will be changed by the revolutionary challenges that now confront it. A part of any such understanding must be the acknowledgment that today's rules originated in the revolutionary social struggles of a class whose interests they serve. Fundamental change may seem more or less imminent, or even possible, at any given moment. The dialectical way in which history moves precludes strict linear development. But at any given moment, understanding legal ideology is essential, for reasons I discuss below. I trace this book's origins to the events and ideas of the late 1960s and early 1970s. In a 1969 book review, I coined the phrase "jurisprudence of insurgency." This review became the basis for a longer analysis of the present-day movement for social change, presented under the title "Jurisprudence of Insurgency" at the Center for the Study of Democratic Institutions, Santa Barbara, California. This was followed by an essay, "Socialist Law and Legal Institutions," discussing the quite different uses of legal ideology by revolutionaries in the Soviet Union, China, and Cuba. But my experience as a law teacher and human rights lawyer in the 1960s and early 1970s led me to see that I was taking too narrow a view. At that time, I was representing and writing about American radical and revolutionary groups. Some of these folks—of which the Weatherman faction of Students for a Democratic Society may be taken as an example—believed that fundamental and revolutionary change was imminent in the United States. They thought that American political institutions were becoming so destabilized by anti-imperialist protest against the Vietnam War, and by the struggle for racial justice, that systemic changes were "in the air." This process was, they argued, aided by the third world struggles for national liberation. You did not need a weatherman, the saying went, to know which way those winds of change were blowing. The ideology of those groups seemed to me flawed, in two respects. First, they assumed that history usually works in some logical, linear fashion. Such an assertion is, in point of fact, at odds with the way in which past revolutionary changes have come about. As a matter of theory, these groups were ignoring the entrenched power of the bourgeoisie and of its dominant ideology, especially in metropolitan countries. That is, they had forgotten that change is a dialectical process. I also rejected the insistence of many radicals and revolutionaries that "law doesn't matter." I thought such a view ahistorical. I noted that there were many ways in which legal ideology could be and was being deployed by dissident groups to advance their own agendas. That is, there remained contradictions between the formal guarantees of freedom and fairness inherent in bourgeois legal ideology and the reality of bourgeois state power, and some of these contradictions were resolved in favor of ideology, not power. I noted that many radicals and revolutionaries were being prosecuted for offenses that involved organizing against the state, or refusing to serve in its wars, and that law and lawyers were going to be necessary in defense of those people. In fact, some of us were achieving good results in keeping the movement s leaders out of jail. So, in the words I later wrote in a play, the law is not simply a mask the state puts on when it is about to commit some indignity on the oppressed. Finally, it seemed to me that even after a fundamental social change, a new society would need rules and procedures to enhance justice—so that legal ideology was worth thinking about regardless of what you thought was going to happen. At the same time, I recognized that an alternative to capitalism was not going to be found in law books. Lawyers for the people do not own nor did they invent the law. They do not stand at the center of the events by which the world is moved and changed. They are effective only if they listen to and seek to express people's demands. It seemed to me that the only way to understand the role of legal ideology was to study its operation in history. In theory and practice, I was a dialectical and historical materialist. In a 196S essay, I had briefly considered the upheavals in Western Europe and their contribution to changes in the law. But I wanted to test my theory of jurisprudence and insurgency by examining the bourgeois revolutions of Western Europe, and to show how the rules we live under today can be traced to specific social struggles in the rise to power of the bourgeoisie. No such legal history had been written in English. I originally thought that the main elements of the bourgeois legal ideology had emerged in the English and French revolutions and that the main focus would be upon the seventeenth and eighteenth centuries. I learned, in moving through the primary and secondary sources in Europe and America, that the struggle of the bourgeoisie toward final victory had in fact begun centuries earlier, in the urban uprisings of the eleventh century. Not only did the story of those uprisings make an exciting chapter in the struggle for human liberation, but it modified my outlook about the relationship between law and revolution. I had ascribed principal significance in earlier writing to the openly revolutionary phase of challenges to an existing legal ideology. In tracing the centuries-long battle of the bourgeoisie, I began to understand more deeply the role of essentially reformist initiatives in temporarily improving the position of a dissident group, in identifying fundamental conflicts and distinguishing them from those which are less important, and ultimately in sharpening the focus of struggle between an existing holder of state power and that group which will overthrow it. I do not argue that legal change, or changes in legal ideology, caused the transition from feudalism to capitalism. Any social system preserves and maintains itself against its enemies, and regulates its internal affairs, through power, and thus in the last analysis through threat and use of force. Its formal rules rest on the premise that if one does not obey the commands of the state—the institution with a public force specially appointed to enforce laws and commands—sooner or later one will be either forcibly constrained to obey or punished for not obeying. Any group, such as the early businessmen, that wants to make a radical change in a society first tests the existing institutions of power to see how far they will bend, and then attacks the institutions of state power directly, setting up its own apparatus of public force, with new laws and commands designed to secure its own interest.