Who is Being Profane?
It’s not often I use profanity to ‘make a point’. Some would suggest such profanity is even unacceptable in context of a serious discussion. But with respect, what is more profane: the use of expletives or the fact that Black persons are incarcerated at six times the rate of whites? Rephrasing Malcom X, can someone be put on a stove and not be expected to scream? And we hear this scream everyday. The ‘senseless violence’ of America’s ghettoized communities is the scream of the colored body still sitting on that furnace. The collision of social forces, violent antagonisms, and a legacy of oppression exploding forth in a stream of destruction all too real for those who live it everyday.
But this is all a digression. The issue before us is that of the legitimacy of the court system with regard to the whole matrix of “criminal justice”. Certainly such a discussion requires us to examine the world of the courts and in doing so observe the most profane of bourgeois ‘justice’. This requires examining the limits of what we consider to be ‘justice’ in the same way we challenged in the opening paragraph the limits of ‘profanity’. Taking bourgeois ‘justice’ out of its home in the heights of ideology – the tower of abstractions alongside ‘freedom’ and ‘equality’ (the proud refuge of the liberalism) – and locating it in the networks of material relationships we come to know as ‘reality’. Only then can ‘justice’ cease to be this abstract term thrust upon us but a real meaningful object of study.
Social Construction of Justice
The first contention to be made is that justice is constructed. And I do mean here (and for all mentions unless explicitly stated otherwise) bourgeois justice. Not constructed in the traditional sense of an entirely ‘deliberate structure’ (like a person building a home). It is not as if the whole of the bourgeoisie at some indeterminate time set about with their blueprint to construct justice. Not to say many ‘constructions’ of the ideological sort aren’t deliberate, many certainly are; however, the wider development of ideological notions, as well as the material practices they derive from/discipline, is something far more uneven, protracted, and yet still conditioned. Conditioned not by some ‘evil central committee’ (e.g. Illuminati) but the material force of capital and the web of social relations in which it exists.
Therefore to say something is ‘constructed’ conveys several important features. First, it is not essential. There is no action, thought, form, or anything that carries with it the embodiment of ‘justice’. There is no ‘essence of justice’ because justice has no fundamental ‘essence’ to be studied beyond that which we as human beings give it. Second, it is not platonic. There is no ‘true form’ of justice floating somewhere. Even in a more contemporary sense, there is no such thing as a ‘true justice’ that we need only need to discover. To think so would presume a ‘fundamental form’ existing independently of the world we encounter. Thirdly, there is a ‘beginning’ and intuitively an ‘end’. What exists between these two limits is what we know as the ‘actual construction’. Not to complicate this any further, in the case of abstract ‘justice’ there is a concrete point where we can observe its ‘beginning’ (emergence into social significance) as being the sum of real social forces. Fourth, there is a method. Nothing is constructed without some mode of action, certainly our current subject is no different. But we should resist the temptation to be severely deterministic or mechanical in our analysis. We should also reject the notion that to be straight forward and intelligible requires the sacrifice of a ‘flexible study’. What is mechanical may be simple, but what is simple is not always accurate. Fifth, there is a foundation. This might seem intuitive but the nuance of foundational thought is often lost in historical analysis. We tend to imagine something as springing forth from nothingness, or being the B in regard to the A —> B analytic. Rather, we should conceive of these transformations, ‘constructions’, as being culminating relationships between social forces developing in context to a real material history. Sixth, there is a purpose. This would almost seem ominous and perhaps ‘conspiracy-like’ that there is a fundamental ‘purpose’ to the social constructions which we interact with everyday. However, the truth is quite the opposite. No construction ever set forth without some goal in mind (better security, more room, advanced standards etc.) and similarly ‘justice’ has not been constructed as a social exercise. Justice serves a purpose in the function of capitalism: the web of our oppression. But the conditioning force to this ‘purpose’ is actually impersonal. Not some collection of evil masterminds or sociopaths but the “mad dance of capital”. In this sense, there is no plot behind purpose, but simply the indifferent march of accumulation. Perhaps this is the most terrifying realization of all.
We must take this all into consideration when we go about analyzing justice as constructed.
Illusion of ‘Objectivity’
The second contention is the elimination of objectivity. Now, this can be analyzed at many levels. The first in relation to justice and the court system as we encounter it is most obvious. The construction of the court, as the most objective and impartial means of settling accounts is absolute nonsense. These categories, of the accused and the prosecution, the ‘fair legal representation’ of the accused, the impartial scrutiny of the judge, all of these mask the obvious contradictions at play. The contradiction between the exploiter and the exploited. The oppressed, and their oppressor(s). We all know the meaning and often conclusion of these contradictions including the trajectory they take in a ‘court of law’. What ‘legal equality’ exists between the slave and his master? Even the ‘impartial voice’ of the jury (which in many criminal cases is never even encountered) is the socially primed drooling of Pavlov’s dogs. But this perhaps gives those jurors too much agency. What we are dealing with, when we consider the jury, is a body of capital subjects, often hand-chosen down to their specific features like seeds from a harvest. Conditioned their whole lives, to the full capacity of the ideological apparatuses of the state, they are then given the pressing duty of becoming the impartial critic to the stage-play of “criminal justice”.
The objectivity of the court system is only an illusion; and a very poor illusion at that. The reason for such a construction of ‘objectivity’ is worth an entirely separate inquiry and perhaps is a question that is better answered by more qualified persons on the subject. Regardless, it’s important that we eliminate this category of objective legal justice and in doing so reveal plainly the contradictions at work (that between the oppressed and the oppressors).
However, we must also extend this second contention, the categorical elimination of objectivity, to how we even ‘think’ about the court system and justice as a whole. There are those who would consider the court system to be rather benign; as if the court system, as a vestige of bourgeois justice, can be utilized in service of the oppressed. For a moment, we could draw analogy to the mere inversion of aspects. This is a terrible form of mechanical dialectics and can only be utilized by the right opportunists among the Left; those who wish to imagine there is not a contradiction where there certainly is. A classic example of this very question comes from Foucault’s encounter with French Maoists in the early 70s. The question at the time was could there be a “People’s Court” established to convict the police and other repressive agents of their crimes? Obviously a spacious question (as the long discussion would ensue) but the kernel of reflection is left intact, even today.
Could we somehow reverse the motion of the court system, playing it into motion against the bourgeoisie? Both in stages of resistance to capitalism, from within capitalism, and in the stage of socialism (people’s courts)? The short answer is no.
Why? Because the very construction of the court system is premised on the bourgeois myth of ‘legal justice’ and can only maintain the very contradictions socialism sets out to overcome. We cannot simply wield the “ready-made” state apparatuses for the purpose of liberation. The question is not so simple as the inversion of aspects. The court is not so benign as a gun to simply be turned in the opposite direction. The court, as it has been constructed historically, is the enemy of the masses. As it is wielded it maintains the arbitrary divisions of bourgeois justice which ultimately engender relations of exploitation. Relations between the exploited and exploiters, oppressed and the oppressors. The notion we could maintain such a structure and wield it for the purpose of transforming society in any meaningful sense is the worst sort of idealism: idealism which cannot even progress creatively.
What About the State?
There are a few obvious objections.
First, how can we reject the court system and accept the use of ‘state power’? Certainly, it should be noted there is a real need for clarification. Partly because contemporary mouths of Marxism have failed so deeply to explain what the state is and how it functions. The bourgeois state, quite simply, cannot be wielded by the proletariat and oppressed peoples. As pointed out early on by Lenin, parliamentarism is a bourgeois construction and must be destroyed in the process of transforming the state apparatuses. This is not the only institution which must be transformed in the course of revolution but it certainly lends a historical example to what we mean when we say the “transformation of the state apparatus”. This is because a real dialectical transformation is not simply a transformation of form but also a transformation of content. This insight is absolutely critical and perhaps the most important observation to be made if the whole canon of Marxism is to become actually revolutionary.
Ultimately the state is an institution which must be eliminated if socialism is to transform into communism. However, the function of suppressing class elements must be utilized through the course of socialism. In this sense, the state must be preserved to some extent. We are not liquidating the category of state repression. We are, however, fundamentally transforming the form and content of the state in its whole social context. This is all one massive digression, although an interesting subject, not the subject we are out to explore here. The point of this digression is to explain why we can abdicate the court system and still maintain the revolutionary state as a meaningful institution.
Second, how can there be justice without the court? Such a question displays the depth of bourgeois ideology in regard to justice. Justice seems entirely inseparable, at least in some cases, with its administrative apparatus in our society. This too is only a construction. The question should not be whether revolutionary justice can exist without a court system, but can revolutionary justice exist within a court system? Absolutely not, and for reasons listed previously. The justice forwarded by the oppressed must necessarily transcend the very tools which uphold their own historical oppression. This is not to say that we should forget all of the progressive achievements realized through the bourgeois court system. All of which, and every progressive endeavor which advances the masses, should be upholded to the full legal extent available. However, it would be entirely mistaken to credit the court system with the progressive achievements of the masses or to conclude that the courts are not set against liberation because of numbered victories. In fact, revolutionary justice is only hampered by the apparatuses of the old society. A central tenet of Marxism is laying bare what was previously hidden. The very thesis of Marx’s Capital demonstrates, through its fundamental critique of political economy, that the entire web of ‘economic theory’ is nonsense. The real driving motion lies in the contradiction between social forces. The court system instead masks the contradictions at hand, rather than laying them bare affirming the old saying that indeed “knowledge is power”. Revolutionary justice has no need to make illusions, to hide what is obvious. There is no need for fake objectivity and the rituals of ‘legal impartiality’ in the case of oppression. This is only insulting to the whole multitude of oppressed and exploited peoples.
And even if we could weigh the progressive achievements through the court system as tantamount to its ‘essence’ what do we say then of the experience of the masses? The fact that the courts are the foremost tool of repression. Repression not of the bourgeoisie, those who rarely ever stand before a judge and jury, but of the oppressed and exploited people. Those millions of working poor and nationally oppressed dragged before a snarling judge only to have what little freedom they maintain swept away in the most fake of all show trials. Bourgeois justice is a show trial. A show trial in the truest sense of the phrase. How are we going to wield this institution and somehow admonish centuries of ghettoization, criminalization of the oppressed, and endless suffering? We cannot and any attempt is unacceptable.
Let it be said quite simply that the bourgeoisie and all of their lackeys hate revolutionary justice. Revolutionary justice is the most vile subject in the whole course of history. Historians recall the “extreme violence” of the Chinese revolution towards the landlords and mass enemies as a “disgusting crime”; likening it to the Nazi regime of terror against the Jewish people. What could possibly be more telling about the development of bourgeois justice than its reaction to revolutionary proletarian justice?
When Chinese peasants took justice into their own hands, publicly denouncing and reprimanding the landlords who had oppressed them for so long, they realized the kernel of revolutionary justice. Justice which is laid bare, plain, and clear for all to see. Free of any illusion of objectivity; it is justice which gladly accepts the subjective conditions which compose reality. Justice without courts, without judges, and without a jury. A true moment of liberation. Momentary liberation which becomes a standard for social transformation.
This is the kind of justice we need.
What we need must be unacceptable to the ruling class. How we demand it must be absolutely profane to the bourgeois mouthpieces. Why we pursue it must be true to the sense of a liberation as defined by the experience of the masses. All of these indicate the correctness of our line.
“Criminal justice” is a repressive notion meant to keep the people within chains; to hell with it. “Liberation or nothing” is the slogan we must adopt if we are to be true to our convictions. Empty the jails; burn down the prisons; open the asylums; fuck the courts.