Another modified piece that got produced a few years ago. When I initially wrote this, I was at the moment that my theoretical world was most defined by Negri and Hardt's Empire. I'v revised this slightly to cut down on the knee-jerk anti-statism of the earlier piece, although I have not abandoned the autonomist perspective. However, the notion of autonomism that I now subscribe to links up more closely with the original notion developed by Tronti, one that doesn't reject the formation of institutions such as the PCI as a part of that project. The collapse of such organizations does not mean that we will not need to create new structures in the future in our attempt to create a new assemblage in response to the continued austerity programs of the crisis.
“The Conception of Law” is a dense and complex text, as well as being somewhat ambiguous. One cannot be sure if it is, in fact, operating within the terrain of the capitalist system, in reference to a new type of system, or somehow ambiguously hanging between the two. I think that the first and third are the most reasonable interpretations. Gramsci is describing something that is, and there are also some implications that this is something that aspects will continue in the future in a new system. Within this, Gramsci begins the text by criticizing earlier conceptualizations of the law. It also creates a conceptualization of the ‘Law’ that works within a larger framework. It has the following qualities. 1. It operates as a negative function in a system that is largely positive, that is in creating certain parameters to operate within. 2. It acts as a moral sanction against those not operating within those parameters. 3. The superstructural elements that it works within operate in the same manner as the structure to produce individuals. There also seems to be a sense that the brief statements contained within could be seen as premonitions for some of Foucault’s ideas.
Gramsci begins by explaining that no current system of thought on the law explains sufficiently how the current system works. Even the systems thought to be most current, including the notion of ‘positivism’ fail. "It seems to me that one cannot start from the point of view that the State does not “punish” (if this term is reduced to its human significance), but only struggles against social “dangerousness”.” (249-247) His continued barbs against Ferri’s system have an obviously polemic side to them (i.e. in that he is mocking a political adversary that has gone over to fascism), but there is also a constant recognition that the system proposed by Ferri ignores the state’s role as ‘the executive committee of the bourgeoisie’ that creates the terrain within which capitalism operates.
It’s also for precisely those reasons in which he states that; ”The conception of law will have to be freed from every residue of transcendentalism and from every absolute; in practice, from every moralistic fanaticism.” (246) The law cannot imagine its origin coming from god or anything that would impede its functionality. It must punish the subject for not operating within the customs and norms which the State wants to see in play to create the superstructure in which the realm labeled ‘economic’ operates. This new conceptualization of law operates within the notion of the state as ‘educator.’ It is the negative function of the state which punishes the individual for acting outside of norms, which dovetails neatly with other more positive institutions such as schools create the system of norms which the punishment is marked out. “The Law is the repressive and negative aspect of the entire positive, civilizing activity undertaken by the State.” (247) This explicitly coercive function is de-emphasized within the text. One gets the impression that this function only operates in the last instance. Rather one is inundated with the emphasis on the state as an organizer within the terrain of the superstructure.
This is emphatically an ethical conceptualization, rather than one of a sort of Benthamite utility. “It operates according to a plan, urges, incites, solicits, and “punishes”; for, once the conditions are created in which a certain way of life is “possible”, then “criminal action or omission” must have a punitive sanction, with moral implications, and not merely be judged generically as “dangerous”.” (247) In effect, the state creates moral constructions within the superstructure, which allow the economic system to function. There is a sense in which the factory discipline exists in the superstructure as well. “The State, in this field, too, is an instrument of “rationalization”, of acceleration and of Taylorization.” (247) It organizes the arena of the superstructure with an eye to creating possibilities, which allow for a new type of economic life.
There contains a certain relationship to many of the ideas contained in Foucault’s Discipline and Power. In both cases, the authors lay out an argument in which the law and the state work, “to create and maintain a certain type of civilization and of citizen (and hence of collective life and of individual relations), and to eliminate certain customs and attitudes and to disseminate others.” (246) Obviously, Foucault uses considerably different language in the description of his project, but the same drive to produce the subject lies within Gramsci’s theoretical constructs. These notions are considerably more ambiguous in their functionality than in Foucault’s elaboration in Discipline and Punish. For Foucault, these are mechanisms of control that must be destroyed. Panoptic apparatus and sitting in the central tower, instead of the guards?” (Foucault, Power/Knowledge, 164-165)
Gramsci, on the other hand, seems to mean something more than, “that which creates,” when he invokes the word ‘positive.’ There is something decidedly prescriptive when he invokes the following notion. “The “prize-giving” activities of individuals and groups, etc., must also be incorporated in the conception of the Law; praiseworthy and meritorious activity is rewarded, just as criminal actions are punished (and punished in original ways, bringing in “public opinion” as a form of sanction).” (247) He sees capitalism filling a certain ‘civilizing’ function that will need to continue for some time into the future. One can’t help but note that Foucault has the benefit of operation in a system where the process of modernization is complete, or perhaps to put it differently, the completion of the project of modernization remained firmly in the hands of the bourgeoisie.
For Gramsci, an alternative mode of modernization still seems to exist, despite the passive revolution of the fascists, a project organized by the PCI, an organization shaping and made up of il popolo, the peasants and workers of Italy. That project, taken up by Togliatti in a modified form, was clearly a failure, and the PCI was brought into the Italian state through the Historic Compromise of the 1970’s. One could pose the question whether this project’s failure was inevitable, tied into a particular telos of modernization (see Pasolini’s Fireflies article) or a failure due to the contingency of incompetence or betrayal, although outside of antiquarian interests, it’s largely irrelevant. At the same time, one should not ignore the other legacy of Gramsci, the self-organization of student and workers throughout the 60's and 70's, which translated into a decade long challenge to the post-war republic. That legacy gestures towards the Gramsci of the worker's councils and perhaps more significantly, towards the Gramsci who saw revolutionary struggle defined by the long march through the institutions of everyday life, whether the school, the factory, or elsewhere, a Gramsci that rejected the commanding party of Bordiga.
There seems to be an ambiguity contained within Gramsci as to whether the machinery to the state is something that should be perfected, or if in fact, it is something to be destroyed. This suspension (a decidedly Marxian tension in some ways) allows for him to see the powerful and productive ways that the state (in this case in the form of the law) creates the possibilities for capital. At the same time, there is a sense of unease with the attraction that these processes seem to hold for Gramsci, in and of themselves. One is caught up in the tentativeness of the text, which cannot be escaped.
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