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ABSTRACT
This article proposes a materialist approach to law to clarify the various functions of commissions of inquiry in the capitalist mode of production. I engage with two core claims attributed to Marxist thought: 1) the relationship between the economic structure and the superstructure – the latter being the realm to which laws and legal institutions belong; and 2) the assertion that the legal sphere maintains the class structure that privileges the material interests of the capitalist class. Drawing on examples of past and contemporary commissions, the paper defends a materialist understanding of commissions of inquiry as a valuable framework from which to account for the various recommendations and outcomes of individual commissions. Commissions have the potential to advance considerable democratic and progressive ends but despite these significant potentials, commissions” findings often remain congruent with the essential legal relations upon which the capitalist mode of production is sustained.
Acknowledgments
Thank you to Dr Bernard Dubbeld and Dr David Cooper, who provided valuable feedback and theoretical guidance on drafts of this paper. I also thank the two anonymous reviewers.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1. On the topic of the “cultural turn” see Cook, Glickman, and O’Malley (Citation2008) and Steinmetz (Citation1999).
2. Some of these individuals include Gayatri Chakravorty Spivak, Homi Bhabha, Ranajit Guha, Anibal Quijano, Partha Chatterjee and Dipesh Chakrabarty, see also Chibber (Citation2013, introduction).
3. Hetland and Goodwin (Citation2013) refer to the disappearance of capitalism from current analyses of social movements.
4. In a panel discussion hosted by Eusebius McKaiser on Cape Talk Radio, Cathy Powell, a senior lecturer in Public Law at the University of Cape Town, explained that commissions of inquiry are legal mechanisms that belong to a set of legal and constitutional processes, even though they are not courts of law. They are quasi legal in that they must adhere to principles of natural justice, like every “public exercise of power” (McKaiser Citation2019).
5. The stages of Marx’s intellectual development are a topic of scholarly debate. However there are three identifiable stages in his philosophical writing. See Larrain (Citation1983, 9–10).
6. This paper deals primarily with official commissions, or commissions authorised by the state in accordance with formal legislation. The distinction between official and unofficial commissions is detailed by Louis Bickford (Citation2007). The official status endows a commission’s findings with a certain level of legitimacy and the status of official truth.
7. Drawing on examples from the post-apartheid South African context, the Marikana Commission claimed to seek “truth, restoration and justice” concerning the unlawful killing of mineworkers by the South African Police Service (see Marikana Commission Citation2015). The Fees Commission, with its motto “access, success, sustainability,” sought to address the problem of the unaffordability of higher education and the lack of transformation concerning colonial legacies (see Fees Commission Citation2016, Citation2017). The State Capture Commission has been established to make the state more accountable following allegations of corruption.
8. The Royal or the Commonwealth Commission model (also known as Tribunals of inquiry) were used extensively throughout Britain. Supported by the Tribunal of Inquiry (Evidence) Act (1921) they were mandated to investigate public mischief in Britain and its colonial posts. Prior to that, controversial issues were addressed in Parliament’s Select Committees. However, commissions were preferred models to deal with more sensitive issues as they would ostensibly remove any political or partisan elements that were associated with the parliamentary committees (Blom-Cooper Citation1993, 204).
9. This idea has been advanced by subsequent Marxists like Louis Althusser, who asserted that legal institutions belong to the ideological state apparatus. These apparatuses, which lude school system, religious and legal institutions, function by the “ideology of the ruling class” who hold state power, often through class alliances of class fractions (Althusser Citation[2009] 1971, 93). For my purpose I view commissions as part of the state apparatus.
10. In Marx’s discussion on the “Law and Thefts of Wood” (Citation1842) for example, Marx identified that only poor people would be vulnerable to prosecution under that law. He highlights the contradictions between the substance of rights and specific components of positive law, specifically as it pertained to property, as it is because of the right to property that the poor have no property. Hence, when the state criminalises the wood gatherer, it is acting as a party to the dispute and on the behalf of a certain group involved in the dispute.
11. The Italian Marxist, Antonio Gramsci, argued similarly that the Law is the “repressive and negative aspect of the entire positive, civilizing activity undertaken by the state” (Gramsci Citation1971, 77).
12. This penal code was to have significant influence on the criminal law adopted following the Union of South Africa in 1910, see Koyana (Citation1988).
13. Ashforth details the way experts like anthropologists and economists would be called to testify and provide seemingly objective knowledge to support laws life separate development.
14. For more on structural violence, see Galtung (Citation2010).
15. This was the view held by Austro-Marxists who, in the early 1900 s, sought to update Marxist predictions based on social changes that had occurred, such as the rise of the welfare state and a growing middle class in Europe (Bottomore cited in Stone Citation1985).
16. For example, Mahmood Mamdani (Citation1998, Citation2000, Citation2002) argues that the TRC produced a “diminished truth” due to its narrow conceptualisation of gross human rights violations, perpetrators (state agents) and victims (political activists).
17. In their discussion on the law as ideology, Marx and Engels maintained that it was the supposed “independence” of decision making of lawyers which fuelled the potency of ideology. However, neither of them fully theorised this issue. According to Maureen Cain and Alan Hunt (Citation1979, 109), Marx promised to do this in the Grundrisse.
18. He asserted that although many Enlightenment philosophers declared human relations to be the consequence of human interventions, at closer inspection, many juridical constructs – such as public law – were in fact highly arbitrary. For him, any understanding of the law that dispensed with its relational quality by focusing on things like human nature, or the human commonwealth would only result in “empty scholastic verbal formulae” (Pashukanis Citation1983, 57–60).
19. For instance, the essential legal relation of property can be distinguished from legislation or property laws, such as the 1913 Land Act, or the 1960 Group Areas Act in South Africa, although they fit within essential legal relations.
20. Althusser characterises the economic base as the “unity” of the productive forces and the relations of production. His use of the metaphor is to expose what he calls an “index of effectivity,” where the “floors” of the superstructure possess various levels of effectivity, but which are determined “in the last instance” by the economic base (Althusser (Citation1971 2009), 89).
21. Althusser wrote, “The specific relations between structure and superstructure still deserve theoretical elaboration and investigation. However, Marx has at least given us the ‘two ends of the chain,’ and has told us to find out what goes on between them: on the one hand, determination in the last instance by the (economic) mode of production; on the other, the relative autonomy of the superstructures and their specific effectivity” (Althusser Citation1969, 111).
Additional information
Notes on contributors
Claire-Anne Louise Lester
Claire-Anne Louise Lester is a PhD candidate in Sociology at Stellenbosch University. She holds an MPhil and BA Hons in Justice and Transformation, and BA in Politics, History and English Literature from the University of Cape Town. Her research interests are state institutions, the intersection of law and politics, and social justice.