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Law Making in Canada: Capitalism and Legislation in a Democratic State

Published online by Cambridge University Press:  18 July 2014

Patrick O'Malley
Patrick O'Malley
Affiliation:
Department of Legal Studies, La Trobe University
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Abstract

This paper outlines and critically assesses some of the principal attempts to explain state law making in Canada in terms of its constitution as an advanced capitalist democracy. While generally retaining a conception of relative autonomy of the state, stress is laid on the fact that this can be no more than an heuristic approach. Because it cannot be known in advance whether specific conditions represent an authentic threat to capital reproduction and because interpretation of such conditions is a necessary part of the mobilisation of resistance to such conditions, the so-called limits to autonomy represent no more than a shorthand for politically invoked strategies of opposition by agents of capital. Moreover, focus on relative autonomy and the concept of limits focuses attention on the externalities of state agencies and constitutes these as distinct from the processes relativising state autonomy. The paper therefore works toward a conceptualisation of discursive and non-discursive practices which tend to generate capitalistic-reproductive actions by state agencies.

Résumé

Ce texte résume et critique les principales tentatives d'explication de la production étatique du droit au Canada en tant que démocratie capitaliste avancée. Tout en souscrivant de façon générale à la thèse de l'autonomie relative de l'Etat, l'auteur met l'accent sur le fait qu'elle ne saurait être davantage au'une approche heuristique. Parce qu'on ne peut savoir à l'avance si une situation donnée représente une véritable menace pour la reproduction du capital et parce que l'interprétation d'une telle situation est une composante nécessaire de la mobilisation ou de la résistance contre elle, ce que l'on appelle les “limites à l'autonomie de l'Etat” ne représente rien de plus qu'une manière sommaire de désigner les stratégies d'opposition dont se réclament politiquement les agents du capital. De plus, l'insistance sur l'autonomie relative et ses limites attire l'attention sur les aspects externes des institutions étatiques et mène à les concevoir comme distinctes des processus qui relativisent l'autonomie de l'Etat. Cet article se veut pour cette raison un effort de conceptualisation des pratiques discursives et non-discursives qui tendent à susciter des actions de reproduction du capital par les appareils étatiques.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 3 , 1988 , pp. 53 - 85
Copyright
Copyright © Canadian Law and Society Association 1988

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References

Notes

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17. Stanbury, Business Interests.

18. Ibid., 29-33.

19. Work of this type may also be seen as undermining the ‘pluralist’ view that all important needs or interests will become organised and will be represented in state policy. The example of the consumer interest indicates not only how organisational re-sources are unequally distributed, but also how significant interests may go unrecognised even by those most directly concerned. Ibid., 199-209.

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25. Similarly Scutt, J., “Sexism in Criminal Law,” in Mukherjee, S. and Scutt, J. (eds), Women and Crime (Sydney: Allen and Unwin, 1981)Google Scholar shows how specifically male interests and definitions are expressed in criminal laws relating to prostitution, domestic violence and infanticide without ever having to be represented as such. See also Friedman, L., Law and Society (Englewood Cliffs, NJ.: Prentice-Hall, 1972), 99Google Scholar.

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41. Ibid., 73.

42. For a critique of Young's account of this legislative process, see Smandych, R., “Marxism and the Creation of Law. Re-examining the Origins of Canadian Anti-Combines Legislation 1890-1910,” Canadian Criminology Forum (1983), no. 1, 49Google Scholar.

43. A good illustration of this problem is to be found in Hagan, and Leon's, (“The Development of Canadian Juvenile Justice. A Background for Reform,” Osgoode Hall Law Journal 15 (1977), 71–106)Google Scholar analysis of the instrumentalist claims concerning the formation of Canadian delinquency legislation. Noting previous instrumental analysis which attributed such legislation to bourgeois interventions aimed at training labour for industrial discipline, Hagan and Leon were unable to discover evidence of effective pressure from this source. Rather, they discovered evidence that the changes were fought over by police defending a traditional disciplinary approach to juvenile correction and more liberal reformers. The victory of the latter meant that the reforms stemmed from the interventions of middle class and bureaucratic agents who were apparently concerned with straightforward ideas of humane intervention and moral correction.

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46. In such instances it is often argued that capital permitted the legislation establishing such bodies only when it was assured that the resulting system would be ineffective. The legislation, in short, is intended as a mere sop to those clamouring for control. While this may be the case in certain instances, there are grave dangers in adopting the position which suggests that all concessions in the direction of genuine regulation of capital fall into this category. Were it the case, then it would be difficult indeed to ex-plain the current wave of deregulation which is characterising most of the advanced capitalist states. Why should those espousing the interests of capital bother to sweep away a set of state practices which serve an important ideological function, unless they operated at some significant expense to profitability or competitiveness?

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50. While the focus here is upon class, it is also clear that ethnic and gender selectivity also operates. Olsen concludes from his analysis that “the Canadian state elite is primarily an elite composed of middle class Canadian males of British and French ethnicity.” Olsen, D., “The State Elites,” in Panitch, (ed.), The Canadian State, 217Google Scholar and Ibid., 207. White, R., Law, Capitalism and the Right to Work (Toronto: Garamond Press, 1986), 37–38Google Scholar, indicates that on average, women make up five percent or less of federal and provincial legislators and judges.

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53. It must certainly be recognised that the Canadian judiciary has frequently denied that it adopts a law making—rather than law applying—role. While it will be argued that such judicial conservatism has played a strong role in Canadian history, it may be noted briefly that such a denial of judicial policy making can scarcely be maintained in the face of changes instituted by the Charter. In particular, I refer here to the capacity to render laws invalid on grounds other than limitations of federal powers. For an extended discussion of these ‘two models’ of judicial practice, see Weiler, P., “Two Models of Judicial Decision-Making,” Canadian Bar Review 46 (1968), 406–471Google Scholar.

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55. Olsen, D., The State Elites (Toronto: McClelland and Stewart, 1980), 51Google Scholar. As indicated in this passage, not only class but also gender selectivity is marked among the Canadian judiciary. In 1985 it was still the case that only one member of the bench of the Supreme Court was a woman, as were only 28 out of 630 federally appointed judges and 22 of 657 provincially appointed judges. (White, , Law, Capitalism and the Right to Work, 37–38)Google Scholar. The same is true for legislators of the first instance, where of 1018 provincial and federal members in 1982, only 67 were women. (Ibid., 37). Likewise in the public service, where only 0.2 percent of management positions are occupied by women and 0.5 percent by indigenous people. (Kernaghan, K., “Representative and Responsive Bureaucracy: Implications for Canadian Regionalism,” in Aucoin, (ed.), Regional Responsiveness and the National Administrative State (Toronto: University of Toronto Press, 1985), 18Google Scholar.

56. As Adams and Cavalluzzo conclude in their study of the Supreme Court of Canada “judicial selection comes near the end of the judicial recruitment process. It acts to reinforce the socialization process by choosing those lawyers who have conformed to the established norms and who therefore give promise of fulfilling the judicial role in the expected manner.” Adams, G. and Cavaluzzo, P., “The Supreme Court of Canada: A Biographical Study,” Osgoode Hall Law Journal 7 (1969), 63 andGoogle Scholar; Olsen, , The State Elites, 42–46Google Scholar.

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65. A similar point is made by Marxists. Engels (Marx, Karl and Engels, Frederick, The Marx-Engels Reader, Tucker, R. (ed.) (New York: Norton, 1972), 645)Google Scholar for example argues that in a modern state the law must be consistently applied and developed, for where “a code of law is the blunt, unmitigated, unadulterated expression of the domination of a class—this in itself would offend the conception of justice.”

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91. Mahon, Rianne (“Canadian Public Policy: The Unequal Structure of Representation,” in Panitch, (ed.), The Canadian State, 191)Google Scholar interprets this as the effect of recognition by such officials that to act otherwise would result in more obstructive Indian opposition to state policy. This may certainly have been one motivation, but there are dangers in seeing all such moves as forms of bourgeois manoeuvering. Palmer's, I. (“State Theory and Statutory Authorities' Points of Convergence,” Sociology 19 (1985), 523–540)CrossRefGoogle Scholar research into state agencies dealing with aboriginal demands in Australia suggests that state officials may identify authentically with popular causes and, within the constraints of office, work genuinely to represent them. This appears less conspiratorial and determinist than Mahon's implied scenario.

92. An added complexity is that in certain areas of administration issues may be so contentious and contradictory that agencies emerge which achieve a high degree of insulation from class influences (Mahon, Rianne, “Regulatory Agencies: Captive Agencies or Hegemonic Apparatuses,” Studies in Political Economy (1979), 162–200)Google Scholar. One such area is the regulation of the press, which has been dealt with in Canada, as else-where, by regulatory agencies expressive of highly contradictory forces (O'Malley, Pat, “Regulating Contradictions: The Australian Press Council and the ‘Dispersal of Social Control,’” Law and Society Review 21 (1987), 83–108)CrossRefGoogle Scholar.

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94. Mahon, , “Canadian Public Policy,” 175Google Scholar. See van Loon (“Kaleidoscope in Grey”) for an outline of how such negotiation tends to occur in practice.

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96. This emerges clearly in the debate between Cuneo, C. (“State Mediation of Class Contradictions in Canadian Unemployment Insurance 1930-1935,” Studies in Political Economy 3 (1980), 37–65)CrossRefGoogle Scholar and Pal, Leslie (“Relative Autonomy Revisited: The Origins of Canadian Unemployment Insurance,” Canadian Journal of Political Science 19 (1986), 71–92)CrossRefGoogle Scholar over the origins of unemployment insurance in Canada. For Cuneo, UI was the result of class struggle within the state over the need to control labour. Pal argues that it was the result of state expertise, fiscal capacity and juristic categorisation, which were constituted in bourgeois terms but operated with their own effectivity. However, this particular debate is eventually settled, the only possible conclusion will be in terms of the instance at hand. Few would doubt that even were Pal proven correct (or at least more persuasive) in the instance of UI, the types of struggle outlined by Cuneo were also at work, and in other instances were doubtlessly more influential. Marxist theorists, it seems are rather reluctant to recognise that the articulations of capital and the state are multiple and flexible, not singular and rigid.

97. Note the use of the term ‘tendency’ here, for it is implied neither that all of these will be present in any one situation, nor that any of them will be determinative except in degree. There is no intention here to repeat the errors of the approaches already reviewed which assume that the frequently occurring is therefore the necessary, the exclusively effective or the unsubstitutable.

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100. It is important to distance this account from the marxist-functionalism which held sway until recently. In this view, the state necessarily functioned to reproduce capitalism (Althusser, L., Lenin and Philosophy and Other Essays (London: NLB, 1971)Google Scholar; Poulantzas, Political Power and Social Classes). As with Talcott Parsons and other functionalists of more conservative persuasion, adherents vied with each other in locating the concealed function of every social arrangement. One result was that either the state or capitalism (anthropomorphised) took on a godlike appearance of omniscience and omnicompetence. Unerringly it could isolate the long-term needs of capital from the maelstrom of conflicting bourgeois pressures and class struggles. Irresistably it could sweep aside or coopt opposition and install the functionally necessary arrangements. As with its predecessors, this approach failed not only because of its implausibility, but also because it could provide too few insights into the complexities of political struggle. For a vitriolic critique see Thompson, E.P., The Poverty of Theory and Other Essays (London: Merlin, 1978)Google Scholar.

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