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Complexity and Contradiction in the Legal Order: Balbus and the Challenge of Critical Social Thought About Law

The Dialectics of Legal Repression: Black Rebels before the American Criminal Courts

Published online by Cambridge University Press:  01 July 2024

David M. Trubek
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Abstract

We reach, then, not a simple conclusion (law = class power) but a complex and contradictory one. On the one hand, it is true that the law did mediate class relations to the advantage of the rulers; not only is this so, but … the law became a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage. … On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of the rulers. [Thompson, 1975:264]

As always in social life, the heart of the mystery lies in the relationship between the struggle for power and the beliefs people hold about what is good for them and what they are capable of achieving. That relationship is the cave into which we must follow the enigma. [Unger, 1976b:242]

Type
Research Article
Information
Law & Society Review , Volume 11 , Issue 3 , Winter 1977 , pp. 529 - 569
Copyright
Copyright © 1977 The Law and Society Association

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Footnotes

I wish to thank Marc Galanter for his invitation to attempt this review, and both him and Richard Abel for their patience and encouragement during its long gestation period. Piers Beirne, Charles Grau, Willard Hurst, Duncan Kennedy, Stewart Macaulay, and Louise Trubek provided helpful comments on earlier drafts. I am indebted to Mark Tushnet for drawing my attention to the study by E. P. Thompson (1975) quoted at the beginning of the essay: this statement, and the passage from which it is drawn, were extremely suggestive for the formulation of ideas presented here. I also profited from a recent opportunity to discuss the study and the theory of law with Isaac Balbus.

References

AUERBACH, Jerold S. (1976) Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press.Google Scholar
BALBUS, Isaac D. (1973) The Dialectics of Legal Repression: Black Rebels before the American Criminal Courts. New York: Russell Sage Foundation. (2d ed. Edison, N.J.: Transaction Books, 1976).Google Scholar
BALBUS, Isaac D. (1977) “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law,” 11 Law & Society Review 571.Google Scholar
BENDIX, Reinhard (1962) Max Weber, An Intellectual Portrait. New York: Anchor.Google Scholar
BLACK, Donald J. (1972) “The Boundaries of Legal Sociology,” 81 Yale Law Journal 1086.Google Scholar
BLACK, Donald J. (1976) The Behavior of Law. New York: Academic Press.Google Scholar
CARL, Beverley (1972) “Erosion of Constitutional Rights of Political Offenders in Brazil,” 12 Virginia Journal of International Law 157.Google Scholar
COLE, George F. (1975) Review of Isaac D. Balbus, The Dialectics of Legal Repression, 69 American Political Science Review 263.Google Scholar
COUNCIL ON PUBLIC INTEREST LAW (1976) Balancing the Scales of Justice, Financing Public Interest Law in America. Washington, D.C.: Council on Public Interest Law.Google Scholar
DANZIG, Richard and Michael, LOWY (1975) “Everyday Disputes and Mediation in the United States: A Reply to Professor Felstiner,” 9 Law & Society Review 675.Google Scholar
FEELEY, Malcolm (1976) “The Concept of Laws in Social Science: A Critique and Notes on an Expanded View,” 10 Law & Society Review 497.Google Scholar
GALANTER, Marc (1976) “The Duty Not to Deliver Legal Services,” 30 University of Miami Law Review 929.Google Scholar
GLAZER, Nathan (1975) “Towards an Imperial Judiciary?” 41 The Public Interest 104.Google Scholar
GOLD, David A,“ Clarence Y. H. LO, and Erik Olin, WRIGHT (1975) ”Recent Developments in Marxist Theories of the Capitalist State,“ 27 (5) Monthly Review 29 (October); 27 (6) Monthly Review 36 (November).Google Scholar
HABERMAS, Jurgen (1975) Legitimation Crisis. Boston: Beacon Press.Google Scholar
HANDLER, Joel (1976) Social Welfare Groups and Legal Reform. Mimeograph.Google Scholar
HORKHEIMER, Max (1974) Eclipse of Reason. New York: Seabury Press.Google Scholar
HURST, James Willard (1950) The Growth of American Law. Boston: Little Brown.Google Scholar
KENNEDY, Duncan (1973) “Legal Formality,” 2 Journal of Legal Studies 351.Google Scholar
KUHN, Thomas (1970) The Structure of Scientific Revolutions. 2d ed. Chicago: University of Chicago Press.Google Scholar
LAZARUS, Simon (1974) The Genteel Populists. New York: Holt, Rinehart & Winston.Google Scholar
MICHELMAN, Frank (1968) “Property, Utility and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law,” 81 Harvard Law Review 1976.Google Scholar
NADER, Laura and Linda, SINGER (1976) “Dispute Resolution in the Future: What are the Choices?” 51 California State Bar Journal 281.Google Scholar
NISBET, Robert (1973) The Social Philosophers. New York: Thomas Y. Crowell Co.Google Scholar
NONET, Philippe (1976) “For Jurisprudential Sociology,” 10 Law & Society Review 525.Google Scholar
O'CONNER, James (1973) The Fiscal Crisis of the State. New York: St. Martin's Press.CrossRefGoogle Scholar
OFFE, Carl (1975) “Theory of the Capitalist State and the Problem of Policy Formation,” in Lindberg, L., Alford, R., Crouch, C. and Offe, C. (eds.) Stress and Contradiction in Modern Capitalism. Lexington, Mass.: D.C. Heath.Google Scholar
PEPINSKY, Howard (1976) “Preventing Crime by Challenging the Rule of Law.” Paper presented in the panel on Crime and the Rule of Law, at the annual meeting of the American Political Science Association in Chicago, September.Google Scholar
POULANTZAS, Nicos (1973) Political Power and Social Classes. London: New Left Books.Google Scholar
RABIN, Robert (1976) “Lawyers for Social Change: Perspectives on Public Interest Law,” 28 Stanford Law Review 207.Google Scholar
SAGARIN, Edward (1975) Review of Isaac D. Balbus, The Dialectics of Legal Repression, 420 Annals of the American Academy of Political Science 212.Google Scholar
THOMPSON, Edward P. (1975) Whigs and Hunters. New York: Pantheon.Google Scholar
TRUBEK, David M. (1972) “Max Weber on Law and the Rise of Capitalism,” [1972] Wisconsin Law Review 720.Google Scholar
TRUBEK, David M. (1977) Book Review, [1977] Wisconsin Law Review 303.Google Scholar
TRUBEK, David M. and Marc, GALANTER (1974) “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States,” [1974] Wisconsin Law Review 1062.Google Scholar
UNGER, Roberto Mangabeira (1975) Knowledge and Politics. New York: Free Press.Google Scholar
UNGER, Roberto Mangabeira (1976a) Law in Modern Society, New York: Free Press.Google Scholar
UNGER, Roberto Mangabeira (1976b) “Social Theory.” Lectures delivered in Harvard College, Spring Semester.Google Scholar
WEBER, Max (1968) Economy and Society, 3 vols. Edited by Guenther Roth and Claus Wittich. New York: Bedminister Press.Google Scholar