HOW DOES THE LAW shape who we are and how we behave? For many, the encounter with the law in the form of an interaction with those who represent it — police officers, court officials, prison officers — is direct, abrupt, and violent. #BlackLivesMatter and older campaign groups have been integral in pointing to the asymmetrical way in which the law is applied — and the way in which the law itself rarely if ever treats itself in the same terms as those it punishes. So even in the case of extra-judicial killings of unarmed black children, such as the case of Tamir Rice in the United States, the law does not turn its own rules upon itself and instead grants itself exemptions that would apply to no one else. As Althusser explains:
[T]he formalism of law makes sense only to the extent that it is applied to defined contents that are necessarily absent from law itself. These contents are the relations of production and their effects.[i]
The law does not behave legally. Marxist theories of law have always stressed that law, designed to protect the ruling class and private property — i.e. the existing “relations of production and their effects” — is necessarily repressive and always backed up in the last instance by force. But how does the law create and shape us as subjects even where it does not directly use violence in order to do so?
Althusser wrote several pieces on the law, both reiterating Marxist ideas as regards its authoritarian and violent qualities (“Law is necessarily repressive”[ii]) as well as pointing out that the law’s repression could not exist in the absence of a corresponding system of sanctions — that is, it is not enough for states to make laws if there were not ways of punishing those who transgressed them. Althusser describes this system as the Repressive State Apparatus — courts, fines, prisons, the army, the police. Althusser’s innovation, however, was to analyze the way in which law operates most of the time not by virtue of direct repression but by a form of preventive repression. In a discussion of civil law, Althusser points out that when contracts are made, in the vast majority of cases the terms of the contract are observed without any need for the state to directly intervene. But what explains this subjective internalization of law? Why do we observe laws simply because they exist?
Althusser suggests that we are at all times in the grips of “legal ideology” — bourgeois property-relations, institutionalized inequality, and the separation of the people into those who count as “law-abiding” and those who do not. At the same time, the law is an expression of capitalist relations of production while not directly mentioning them. “On the contrary,” Althusser remarks, “it makes them disappear.”[iii] The law is completely systematic, even where it is not codified (think of the sprawling mess of the English legal system, and nevertheless how historically “successful” the system of case law and precedent has been). But the law also requires a kind of supplement — it is not enough for the law to refer to itself as justification for its own existence — which Althusser calls “moral ideology.” In the case of law, these are abstract ideas of freedom, equality, and obligation. These exist as a discourse outside the law but at the same time structure it. As Althusser puts it:
Law is a formal, systematized, non-contradictory, (tendentially) comprehensive system that cannot exist all by itself. On the one hand, it rests on part of the state repressive apparatus for support. On the other hand, it rests on legal ideology and a little supplement of moral ideology for support.[iv]
We cannot therefore simply reduce the efficacy, force, and practical operations of law simply to the threat of violence and state repression. There is always, Althusser says, a gendarme (cop) on the horizon of every legal practice, but most of the time he is not visible, as legal-moral ideology stands in for, but is not exactly the same as, the cop.
For many people, however, this fine distinction is not so apparent. For those categories of people deemed by the ruling class to be “police property,” that is to say, everyone who is deemed to be the immediate concern of the police — the always potentially rebellious working class, those without property, migrants, racialized groups, sex workers, those with addictions — there is no real separation between legal ideology and legal reality: they are one and the same. Yet Althusser insists that we need to understand the way in which ideology — what he calls the Ideological State Apparatuses (ISAs) — come to work together with the most obviously repressive elements of the state. The ISAs are much broader in scope, including religion, education, family, the legal system, the political system, trade unions, communications, culture, and function, he suggests, by reproducing submission to the rules of the established order as well as reproducing the relations of production, e.g. capitalist exploitation. We can be marshalled through education or marshalled through the prison system: either way we are products of the state, and put to work in one way or another — think of the way in which prison labor in the United States is integral to its economy as a whole. It is no coincidence that the massive expansion of prisons and prison populations also provides a huge captive labor force that can be extremely badly paid, or not paid at all.
But how exactly do ideological institutions make us “subjects”? Althusser’s famous example of “interpellation” — the policeman shouting, “Hey, you there!” — gives vivid literary life to his claim that individuals are transformed into subjects by hailing (and not always directly by an actual cop, but by a teacher, a religious figure, a parent, etc.). Either way, we only become subjects as a result of being directly hailed: we are called upon to be subjects either directly (by repression) or indirectly (by ideology). Who we are is not some preexisting being with our “own” feelings about what is right or wrong, or about our own identity as a particular “kind” of person, but rather we become subjects through repetition. We are constructed as particular kinds of subjects precisely by force and ideology: “bad” subjects, such as those deemed to be “police property,” provoke the direct intervention of the repressive state apparatus — for everyone else, there is the often amorphous, vague by permanent “threat” of the law, of punishment for transgressing social or legal norms.
Thus if we are concrete individuals, it is because we have been constructed as such. Law has a peculiarly privileged position here, being both a repressive apparatus and an ideological force. It is, however, constituted by a central paradox, which is the way in which it both constructs private, named, isolated bourgeois subjects and at the same time in many cases wishes to construct or punish groups as groups. Aside from the categories captured in the term “police property,” as we have seen, there is also the collective punishment of groups by virtue of their “groupness” — protesters, rioters — and in many cases a “criminal” act done in a collective context is massively more subject to punishment than it would have been had the act been in isolation. While we are constructed as individual subjects, we cannot ignore the fact that it is as groups that we are most feared — as a mob, as strikers, as a group blocking the road, as rioters. To supplement Althusser’s theory of the repressive and ideological construction of individuals as subjects, we would also need to examine not only those situations where the group is punished on the ground, pepper-sprayed by police, sentenced in courts, sent to prison, but also imagine what it means to think of non-ideological non-individual subjects.
Can we think collectively beyond institutions? Can we construct ourselves outside of bourgeois law? Can we think without law — force and ideology — altogether, or are we forever bound to be constituted, and constitute ourselves, as good subjects who avoid punishment or bad ones who do not?
Nina Power lives in London and teaches Philosophy at Roehampton University and Critical Writing in Art & Design at the Royal College of Art. She is the author of One Dimensional Woman (2009) and has written many articles on European philosophy and politics. She is the co-founder of Defend the Right to Protest, a campaign group that opposes police brutality and the use of violence against protestors.
[i] Louis Althusser, “Law,” in: On the Reproduction of Capitalism. Ideology and Ideological State Apparatuses, transl. G. M. Goshgarian. London: Verso 2014, p. 59.
[ii] Althusser, “Law,” p. 65.
[iii] Althusser, “Law,” p. 59.
[iv] Althusser, “Law,” p. 68.