请将“2	The Franco-Italian Theory Strand
2.1	Introduction
The theorists presented thus far argued more or less within the lineage of Marx interpretation that sees Marx in the tradition of Hegel. As has already been noted with regard to the critique of Pashukanis, the second line of materialist legal theory starts from the notion that Marx breaks so radically with Hegel that such an interpretation is untenable. The difference between the two theoretical strands stems precisely from those diverging interpretations. This difference will therefore be clarified now, before the Franco-Italian theoretical strand is presented. This is especially necessary because it involved a political-theoretical decision that plays a crucial role for the question of law’s significance in society as a whole.
2.1.1	Critical Theory versus Poststructuralism
The difference in the concepts of the two theories stems from their respective historical and political contexts of the 1960s and 1970s. Louis Althusser’s Hegel-intervention took place against the background of the situation of the communist parties at the time.118 He proclaimed the above-mentioned ‘line of demarcation’, beyond which he wanted to banish those ideas that are ‘“liberal” and “ethical” in tendency’ and rediscover the themes of ‘freedom’, ‘the human person’ and ‘alienation’ by referencing Marx’s early writings, to the realm of the unscientific.119 The ‘humanist Marxists’ thus identified, and they also included real-socialist theorists and politicians, are Althusser’s real intellectual and political opponents. However, building upon this, a dualism between critical theory and poststructuralism developed which had little to do with the starting situation, and which continues to this day. Although both tendencies polemi- cised in Germany as well as in France against a certain idea of the state as upheld by the dominant parliamentary social democracy or socialists/com- munistsd20 with both reaching similar results despite their different theoretical references, a ‘differentiation’ into two theory camps occurred.
Undoubtedly Marx used Hegel in his early writings differently from how he did in Capital and Grundrisse. Also Alfred Schmidt asserts that Marx’s early engagement with Hegel did not yet establish a clear materialist position on absolute idealism, but that Marx engaged at a more mature age in a second study of Hegel.121 Only the further conclusion, that he had stepped out of ‘the shade of Hegel’122 in such a way that not only ‘humanist Marxism’, but any Hegelian Marxism had become untenable, marks the end of commonalities.
Hans Georg Backhaus, for example, counters this with the thesis that one must note a ‘striking continuity in Marx’s thinking from his dissertation until his last economic work’.123 What is in turn understood by Hegel’s philosophy, and thus the premise of the statements on continuity and discontinuity, also depends on whether it is referenced in the form of the critical theory of, for instance, Adorno, Horkheimer or Marcuse, or rather of Kojève. While legal theorists following Althusser appear to believe that the mere mention of the Hegel problem is enough to dismiss for instance Pashukanis, the other side has become enflamed with something of a Marx-mythology, which suggests that Marx’s method remains a dark secret, that value theory therefore remains misunderstood until now,m and that the ‘only authentic form of Marx’s value theory’ was never published by Marx.125 The politically engaged Marx, of all people, is here banished to the sphere of esoteric secrecy and politics of truth.
The increasing one-sidedness of both tendencies is more an expression of social marginalisation than the sign of a productive dispute. I therefore join the position that considers a dialogue between those theories indispensable, ‘which does not get carried away in flattening the certainly important differences of the two, but which also sees that both harbour differently developed potentials of social critique, which can productively mutually enrich and illuminate each other, as soon as concrete social critique is undertaken’.^6 This can in particular be demonstrated for legal theory. I will therefore engage in the following with this central difference.
2.1.2	Totality...
All theories presented thus far have an implicit concept of totality and have shown in various ways that the question of how the different social spheres are mediated together is very much decisive for a materialist legal theory, because this assigns law its position. To begin with, both theory strands have in common that they assume in the tradition of Marx that law cannot have a history of its own,127 but always has to be seen in the context of society as a whole. The difference only consists in how this whole is conceptualised. Concrete totality in a reading of Marx inspired by Hegel means that all individual elements depend upon it. Totality thus forms a structure beyond the accumulation of individual moments, but it cannot be logically abstracted from them, but rather contains all concrete single moments as the condition of its own possibility.128 This can be expressed in a circular model: the entire cycle can only function if there are independent moments. Something can only connect to itself if it goes through something else. This other can be so different as to be the opposite. Nonetheless each of the moments contains determinations of the starting point.129 ‘The form of the total system’, thus Adorno, ‘requires everyone to respect the law of exchange of he does not wish to be destroyed’?30 This exchange relation contains the antagonism which could ‘at any time bring organised society to ultimate catastrophe and destroy it. The whole business keeps creaking and groaning on, at unspeakable human cost, only on account of the profit motive and the interiorization by individuals of the breach torn in society as a whole’.131 In consequence society is a precarious whole that connects through a particular moment. Socialisation follows a fundamental dynamic, that of accumulation, which has to assert itself ‘creaking and groaning’ through exchange. This means that all social relations of power and domination, whatever independ-ent significance they may have, are always mediated and connected by this dynamic. Thus Joachim Hirsch writes, for example, as a rationale for why the capitalist form of socialisation has to be the starting point:
In reality there is a whole range of other social differences in relations of domination, exploitation and subordination; based on gender, religion, culture, or region. Those can neither be simply ‘derived’ from capitalist class relations nor would they disappear with it. They are actually most of the time older than capitalist society itself ... The reason for making the capitalist form of socialisation the starting point for an analysis of the state, is therefore not that those differences constitute insignificant or even subordinated ‘side-contradictions’. To the contrary, nature and gender relations, and sexual or racist oppression are inseparably interwoven with the capital relation and it could not even exist without them. Decisive is, however, that the capitalist form of socialization is the context of material reproduction and as such determines the social structures and institutions in which all those social antagonisms are expressed and connected™
Socialisation understood in the tradition of critical theory implies the ‘tendency of developing capitalism to enter all thinkable life-areas and life-forms of social reproduction’,133 and cast all moments of the totality in its light. In this tradition law would therefore have to be developed from the context of the material reproduction of capitalist socialisation. Precisely this is attempted by Pashukanis and also by his successors when they derive law from the moment they have identified as central, namely commodity production.
Also Regina Becker-Schmidt takes up this concept of socialisation from critical theory, but corrects it with regard to the conception of gender relations in a way that assumes a ‘double socialisation’.^4 Upon closer inspection, however, we see that with this she departs from the already represented concepts of totality, for now at least two dynamics have been identified that will leave their mark on all moments: the dynamics of accumulation and gender relations. For law, this means that it cannot be enough to relate law only to commodity production. This is no accident, for precisely at the point where capitalist socialisation and gender relations fracture, the difficulty of mediating different structuring principles of totality together in social theory becomes apparent.^5
2.1.3	...Ora Complexly Structured Whole with One Dominant?
Althusser’s concept of the social totality is primarily opposed to the vulgar Marxism of Stalinism.136 This has to be stressed, because - as must have become clear - critical theory does not assume a single, realised contradiction ‘which exteriorises and interiorises the economic ad infinitum’™ It is therefore possible to find some common points despite the differences in their derivation.
Firstly, unlike critical theory, Althusser depends in his concept of the whole on Marx’s base-superstructure model, which he interprets as a ‘metaphor’:138 the structure of a society is constituted by different instances which relate to each other in that they are articulated by a specific determination. He thus arrives at three instances: the economic (base) as well as politics and ideology as the two instances of the superstructure.^9 In doing so he imports the term ‘instance’ from the Lacanian variant of Freud’s psychoanalysis, which considers the psyche as an apparatus of multiple instances?40 Here every instance is independent. There is no privileged place of social activity, no single social dynamic, but only economic, ideological, theoretical and political practices.141 The whole is always already given as a complex entity in the sense that it is constituted by diverse, independent contradictions and not an original unity. This is the crucial point at which Althusser seeks to set himself apart from HegeLM2 The instances cannot be derived from a uniform principle, and there is no inner unity of the social whole. This is the sense of understanding it as an ‘appar- atus’.143 With the apparatus no inner, substantive connection is imagined, but only an external organisation; not an intrinsic centre, but only a changing hierarchical structure. The apparatus cannot bring the difference of the elements into one identity; it can only organise their encounter, but it cannot unify them. This unity remains a complex, de-centred one.144”翻译为中文