Juridification

Bianca Tavolari

Attempts to understand how Karl Marx comprehends “juridification” most certainly lead to dead ends. The concept – or even the noun – does not appear throughout his works. But this absence is not a surprise. First, Marx did not see law as a privileged battlefield for the unfolding of the class struggles. Quite the contrary. Whereas in “On the Jewish Question” citizenship rights are presented as an obstacle to human emancipation because they assume the egoistic property-owner, the preface to A Contribution to the Critique of Political Economy asserts that legal relations cannot be apprehended in themselves, but only tied to life’s material conditions. Law and rights are, therefore, epiphenomena of the political economy. But there is a second reason why Verrechtlichung is not thematized at all in Marx’s works. The concept is formed alongside the political and legal debates on the Weimar Constitution. It was first mobilized in 1919 by Hugo Sinzheimer – one of the founders of German labor law – in order to address the trade unions’ struggles to self-regulate collective labor agreements and arbitration of labor conflicts, legal issues that were not recognized by formal law at the time (Sinzheimer 1919).

“Juridification” points to a process of transformation: something that was not considered to be legal or integrated into law in a broad sense begins to be considered so. Therefore, there are as many concepts of juridification as there are different conceptions of law. These different versions of the concept address more than the mere expansion or development of law in general. Its genesis is in Weimar for a reason: new legal fields that emerged at the time gave a new meaning to formal equality, recognizing an asymmetric relation not based on privileges as their starting point. Labor and antitrust law are the main examples. Employer and employee, the holder of economic power and those that do not have a dominant position in the market, are subjects of law in unequal relations. Those relationships demand a legal treatment that empowers the most vulnerable side and also present a claim for material equality. Weimar provided one of the first experiences of the legal recognition of such inequalities and of promoting legal and institutional measures in order to foster a new power balance. But juridification is also a specific concept in that it expresses a social tendency of this legal paradigm to all social fields. Talking about juridification is most of the time accompanied by an implicit social diagnosis of the present, and also by its normative evaluation.

At first glance, all those aspects may lead to the conclusion that there is no immediate link between Marx’s theory and juridification. However, if we take a closer look at how Otto Kirchheimer and Jürgen Habermas have formulated their concepts of juridification, we will be able to shed some light on aspects of this specific relation.

Kirchheimer’s conception of Verrechtlichung is directly linked to the diagnosis of a profound change of function [Funktionswechsel] of the rule of law (Kirchheimer 1928). In his view the rule of law ceases to be a weapon of the bourgeoisie against the remnants of nobility. In a reading purposely influenced by The Class Struggles in France (Kirchheimer 1928, 32), Kirchheimer argues that its appropriation by the irrupting working class – who had gained a significant number of seats in Parliament – transformed the rule of law into a line of division [Grenzscheide] organizing the political dispute between the two classes. In Weimar, the rule of law constitutes the core of the formal democracy and, as a dividing line, it did not serve as an instrument for any class in particular: it stood between the proletariat and the bourgeoisie (Kirchheimer 1928a). This specific balance of power leads to a situation in which both classes intend to consolidate their conquests into law, especially through the constitution. For Kirchheimer, the Weimar Constitution does not represent a compromise between two opposing Weltanschauungen, but rather a juxtaposition of liberal and socialist values, without any common ground among them. According to Kirchheimer, a very particular power balance is engendered in Parliament, in an account that echoes some of the remarks in The Eighteenth Brumaire of Louis Bonaparte (Schale 2006, 51). This is why, according to Kirchheimer, the Weimar Constitution does not present an underlying political decision (Kirchheimer, 1930). In this context, all the political decisions are cloaked with a legal form, and they all enter the legal terrain in order to be considered legitimate in a formal democracy emptied of any political common value. “Man schritt auf allen Gebieten zur Verrechtlichung”, says Kirchheimer in 1928 (Kirchheimer 1928, 36).

For Kirchheimer, juridification stands for a process in which the form of law colonizes every political decision. This totalizing tendency draws an analogy with the Lukácsian reading of the spreading of the commodity-form to all social relations (Teubner 1993, 509; Buckel 2015, 87-91). In direct contrast to Sinzheimer, for whom juridification should guide the labor movement’s path, Kirchheimer’s account of this tendency is eminently negative: juridification is a covering mechanism that displaces the spheres of decision from politics into law. There is no ambiguity here: there is simply no possibility of realizing the socialist values embedded in the Constitution, nor it is even possible to aim for a social democracy through law when politics is neutralized in this manner by formal democracy.

For Habermas, juridification only turns into an important topic in 1981, in the final chapter of his Theory of Communicative Action, as empirical evidence of the colonization of the life-world by the system. Although Habermas is analyzing the post-war welfare state, the legal paradigm that underlies the juridification processes he identifies has its roots in Weimar: he is talking about new legal fields that introduce compensations and recognize vulnerabilities, such as social security law, environmental law, consumer law, and the rights of children and adolescents in the family and in the school. Despite the fact that Habermas understands this type of law as the last movement of several waves of historical juridification, this is his point of departure (Habermas 1981, 522-547).

Habermas’ account of juridification is intended to give concreteness to the overly abstract theory of communicative action and, at the same time, should show how he is updating Marx’s and Lukács’ conceptions of reification (Habermas 1981, 523). The colonization of the life-world by the system should be able to explain reification in late-capitalist societies – and law allows the passage from one side to the other. Law is between system and life-world: at the same time that it embodies systemic elements such as an instrumental rationale that limits freedom, it is also composed by communicative elements that grant spaces of freedom and of justification. At this point, Habermas emphasizes how law contributes to colonization by the system – and not the other way around. The metaphor of the siege [Belagerung] is an expression of that. So, although law is ambiguous – a conception that certainly relies more on Weber than on Marx –, the last wave of juridification is evaluated in a more negative tone. Habermas revised this position in Between Facts and Norms, stressing how law contributes to bringing life-world elements into the system as well.

Today, it might seem that the concept of juridification has become obsolete. There is no imaginable field of life where law can be absent – be it as bringing conflict into court, passing bills, regulations, policies, instituting autonomous self-regulations, or even simply thematizing social relations in the language of rights. When all social relations can be understood through law in its multiple meanings, juridification ceases to be comprehended as a tendency. Some see it as a process with social pathologies and some see it as paradoxical (Honneth 2011; Loick 2014). But the most important fact is that grassroots social movements are expressing demands for juridification in various forms, all over the world. How those struggles are connected to emancipatory potentials is the most important question for critical theory.

 

References

Buckel, Sonja. 2015. Subjektivierung und Kohäsion: Zur Rekonstruktion einer materialistischen Theorie des Rechts. 2nd edition. Weilerswist: Velbrück Wissenschaft:.

Habermas, Jürgen. 1981. Theorie des kommunikativen Handelns. Band 2. Frankfurt am Main: Suhrkamp.

Honneth, Axel. 2011. Das Recht der Freiheit: Grundriss einer demokratischen Sittlichkeit. Frankfurt am Main: Suhrkamp.

Kirchheimer, Otto. 1976 [1928]. „Zur Staatslehre des Sozialismus und Bolschewismus.“ In: Otto Kirchheimer – Von der Weimarer Republik zum Faschismus: Die Auflösung der demokratischen Rechtsordnung, edited by Wolfgang Luthardt. Frankfurt am Main: Suhrkamp.

Kirchheimer, Otto. 1976 [1928a]. „Bedeutungswandel des Parlamentarismus“. In: Otto Kirchheimer – Von der Weimarer Republik zum Faschismus: Die Auflösung der demokratischen Rechtsordnung, edited by Wolfgang Luthardt. Frankfurt am Main: Suhrkamp.

Kirchheimer, Otto. 1981 [1930]. „Weimar – und was dann? Analyse einer Verfassung.“ In: Otto Kirchheimer(ed.), Politik und Verfassung. Frankfurt am Main: Suhrkamp.

Loick, Daniel. 2014. Juridification and Politics: From the Dilemma of Juridification to the Paradoxes of Rights. Philosophy and Social Criticism 40 (8): 757-778.

Schale, Frank. Zwischen Engagement und Skepsis: eine Studie zu den Schriften von Otto Kirchheimer. Baden-Baden: Nomos, 2006.

Sinzheimer, Hugo. 1976 [1919]. „Die Zukunft der Arbeiterräte.“ In Arbeitsrecht und Rechtssoziologie – Gesammelte Aufsätze und Reden, edited by Otto Kahn-Freund and Thilo Ramm. Band 1. Frankfurt/Köln: Europäische Verlagsanstalt.

Teubner, Gunther. 1993. ““Man schritt auf allen Gebieten zur Verrechtlichung” – Rechtssoziologische Theorie im Werk Otto Kirchheimers.“ In Der Einfluß deutscher Emigranten auf die Rechtsentwicklung in den USA und in Deutschland: Vorträge und Referate des Bonner Symposions im September 1991, edited by Marcus Lutter, Ernst C. Stiefel, and Michael H. Hoeflich Tübingen: Mohr.

Biography

Bianca Tavolari

Bianca Tavolari is a PhD candidate at University of São Paulo's Faculty of Law. Holds a bachelor’s degree in law and Philosophy and a master's degree in Law at University of São Paulo. She is a researcher at the Law and Democracy Cluster of CEBRAP (Brazilian Center for Analysis and Planning).