Abstract
Coherent theories of law frequently elude scholars working within the Marxist tradition. So often are the great 20th century Marxists – Gramsci, Thompson, Poulantzas and so on – invoked to explain its abstractions and contradictory outcomes. As often, the class power inherent within the law seems to shift shape through endless exceptionalism, recategorization and unpredictability, appearing to defy theorisation. The latest contribution to this discourse is Brett Heino’s, Regulation Theory and Australian Capitalism – a groundbreaking work which, by periodising and focussing on those aspects of law central to Marxist theory such as labour and property relations, has been triumphant in explaining the operation and significance of law in late capitalist societies. Heino’s point is that law is not simply captive to an economic ‘base’, but rather that law is constitutive of capitalist social relations (p. 31). ‘Law’ is, itself, ‘a juridic form of capital’ (p. 200). The book is also concerned with using this theory to explain key events in the history of capitalism between 1945 and the present in Australia (where Heino lives and works). But it is Heino’s theory of law that is the defining achievement of this text and hence the focus of this review.
The ‘cell’ of the ‘legal form’, Heino explains, is ‘the owner of private property … and production for exchange’ (p. 34) (commodity production) with which the law is inseparably linked through a sacrosanct historical relationship as defender and guardian. At the heart of this relationship lies labour law. Labour law, Heino tells us, is ‘a most complex amalgam, with the law of “things” and exchange relations, namely property and contract law, attempting to incorporate and regulate a living, breathing and thinking subject, the proletarian’ (p. 35). The result of abstracting human beings in this way and replacing them with duties, rights and rules, explains Heino, is a system of ‘formal equality with unequal content’ (p. 36). It is this feature, as Marxist jurists Geoffrey Kay and James Mott have also written, that is the defining characteristic of ‘law’ (Kay and Mott 1982).
This much of Heino’s theory explains how capitalist social relations – those of domination and exploitation from the Marxist–Hegelian master-slave dialectic – are rendered lawful. It is at this point, however that traditional Hegelian dialecticism struggles to account for working-class resistance and social progress over time, particularly given that legal progress for the working class is often formally enacted by the ruling-class itself. Heino points to the victory of the 8-hour day in Marx’s own time as one such breakthrough. At this juncture, those working within the Marxist cannon might typically draw on Antonio Gramsci’s ([1930] 2007) theory of hegemony to account for such a rupture in class power: continued hegemonic power of a ruling-class being assured only by consent – reform and compromise in the face of challenge from below (p. 198). Such a theory, however, has sometimes yielded only vague results. By contrast, Heino’s approach to explaining social progress in labour law is more specific and analytical.
For Heino, the State responds to working-class resistance in the field of labour law using ‘techniques of administration’. Such a response inevitably involves ‘recourse to new tribunals, bureaucracies and procedures’ (p. 37). ‘Administration’ then is the process by which working-class struggle is diffused. Through administration, resistance is sanitised, institutionalised, categorised by technocracy and procedure and sometimes leads to progress and reform. Like Gramsci’s idea of hegemony, the concept of administration serves an equally important role in to the reproduction of the ruling-class, ensuring its longevity and ultimate survival – an aspect leading Heino to conclude that ‘within the framework of capitalist society, administration can thus never liberate the working class; it can only alter the terms on which it is exploited’ (p. 42). Hence, Heino establishes a useful dichotomy (he calls it a ‘continuum’) between ‘law’ (the rules of the game), on one hand, and ‘administration’ (the application of the rules), on the other hand, to explain how an oppressive legal system maintains coherence and the appearance of justice in the face of large-scale dissent.
Heino further demonstrates the specificity and accuracy of his theory to explain change over time in the post-war history of Australian labour law. In periodising Australian labour law in the post-war era, Heino draws on the Parisian Regulation Approach to political economy, analysing the ‘stages’ of capitalism to explain its continued ‘reproduction’ (as opposed to its revolutionary overthrow, as predicted by Marx and Engels). In segmenting Australian labour law in this way, Heino interrogates two key periods or ‘models of development’ in the post war era, which he identifies as follows: (1) ‘antipodean Fordism’ (Keynesian command and control economics) and (2) ‘liberal productivism’ (neoliberalism from 1975 onwards). Heino examines the way in which law is exercised and administration flexed in particular ideological directions associated with each model. In the process, Heino discovers that each model contains the seeds of self-destruction which propel the capitalist machine towards the next model or phase of capitalism. In plotting this course, Heino is clear that transition from one model of development to another is not inevitable. Rather, such transition is an unmistakable human choice made by lawmakers through law and administration, at least equal in importance to those historical trajectories decided upon by capitalists and their markets.
This theory throws a bucket of cold water into the mostly tepid and insular pool of liberal legal thinking and jurisprudence that has traditionally dominated legal academies. It is a welcome thrust towards a clearer way of thinking about the recent history of Australian capitalism and labour law. As such, Heino’s contribution provides unions, scholars, activists and policymakers with stark lessons in avoiding mistakes from the recent past. It lights a beacon for these actors to tread a more emancipatory path with the working class through labour law while reminding us that exploitation and domination are the cornerstones of this system, so long as it continues.