Harold Laski on law, ideology, and social justice
Laski, Harold J. (1893—1950). The Crisis in the Theory of the State. Manuscript, signed on the final page, ca. 1936. 30 pp. With fragments of original envelope from the London School of Economics addressed to Marjorie Fischer, League of American Writers, and an ANS from Ethel Turner, Executive Secretary of the Northern California Branch of the League of American Writers. Light folds, creases, nicks, and paper clip stains.
The original holograph manuscript of a key essay by one of the most important and influential political scientists of the twentieth century. Offering a critique of the limitations of the American legal system that anticipates critical race theory, Laski's essay may have influenced the Supreme Court's thinking in the landmark civil rights case Herndon v. Lowry (1937) specifically and what has been termed the "Constitutional Revolution" of 1937 more broadly.
Laski is remembered today as a founding father of the British Labour Party, as a public intellectual who established the Left Book Club, and as a professor at Harvard, Yale, the New School, and the London School of Economics whose students included a generation of leading statesmen in England, the United States, India and Africa. A devoted socialist, Laski helped shaped Roosevelt’s New Deal policies through his long correspondence with Felix Frankfurter, Louis Brandeis, Oliver Wendell Holmes, Jr., and other jurists and his frequent contributions to leading American periodicals. In recognition of his profound influence on the law and public policy during the interwar years, the Oxford historian Max Beloff has dubbed that period “the Age of Laski.”
Harold Laski in the 1930s
The Crisis in the Theory of the State is most widely read today as the introductory chapter to the fourth edition (1938) of Laski’s magnum opus, The Grammar of Politics. Offering “a new political philosophy” for an age that had “lost confidence in the simplicity of the earlier thinkers” – Bentham, Hegel, Rousseau, Marx – who had not anticipated the complexities of modern industrial society, The Grammar of Politics presents a comprehensive, pluralistic vision of the state as decentralized, democratic institution that brings opposing constituencies into a decision-making process based on consultation, compromise, and concession. Anticipating John Rawls’ theory of distributive justice, Laski envisions an enabling state that makes it possible for each citizen to “be his best self” by “mitigating the inequalities of social opportunity.” The Crisis in the Theory of the State extends and broadens the argument of The Grammar of Politics by analyzing the role of law in perpetuating social, political, and economic inequality.
Legal scholar Kendall Thomas has argued that the essay represents Laski’s response to the case of Angelo Herndon (1913-1997), a young African American member of the Communist Party, U.S.A. charged in 1932 with attempting to incite insurrection against Georgia’s lawful authority through labor organizing. The case would be settled by the Supreme Court in a 1937 decision widely acknowledged as one of the great civil liberties landmarks of the era.
Angelo Herndon, Prisoner no. 5129, circa 1934
In 1934, Felix Frankfurter and Henry M. Hart, Jr. published an article on “the business of the Supreme Court” which included the first theoretical discussions of the Herndon case. Exploring the long debate over the relationship between law and politics, which they saw as being at the heart of the matter of Herndon v. Georgia, they concluded that the two realms must be kept distinct. Laski’s essay presents a strong Marxist assault on this legal position of political neutrality, arguing that capitalism is embedded in the ideological infrastructure of American law. The “business” of the Supreme Court, he argued, is – like that of the liberal state more generally -- to protect the interests of the elite:
The state, it is urged, is, in fact, the supreme coercive power in any given political society; but it is, in fact, used to protect and promote in that society the interest of those who own its instruments of production ... [over and against] those excluded from such ownership.
The law, in Laski’s view, is a formidable instrument in the state’s arsenal of coercive power:
The proceeding of the American courts … in the use of the injunction, in the interpretation of the Fourteenth Amendment, in their reading of industrial conspiracy into the category of tort, in their attitude toward free speech and free assembly [key issues in the Herndon case] are all pervaded by the notion, often hardly conscious in the individual judge, that the purpose of the law in fact is, whatever its ideal professions, to maintain existing class relations. …
The same is true of Great Britain.
The Crisis in the Theory of the State first saw publication as the opening essay in a 1937 collection on public law and jurisprudence. Although Thomas stops short of suggesting that the essay influenced the Supreme Court’s decision in Herndon v. Lowery, he remarks that “Laski’s equation of law with ideology must have been nothing short of vertiginous for those who shared Frankfurter and Hart’s vision of the Court.” Today, of course, that equation is at the heart of critical race theory.
The present manuscript differs in a number of small respects from the published version, most intriguingly in its original title, “Recent Theories of the State.” The fragments of the original envelope suggest a backstory for the essay. The envelope is addressed to Marjorie Fischer (1903-1961) at the League of American Writers, an organization initiated in 1935 by the Communist Party, U.S.A. in 1935. Fischer's first book, Palaces on Monday (1936) was a juvenile novel about visiting the Soviet Union, which she painted in idealistic colors. Angelo Herndon would also join the League, and as Kendall Thomas points out, he advanced an argument about the courts and racial justice in his 1937 book Let Me Live! that parallels Laski's argument in The Crisis in the Theory of the State. Was Laski's essay originally intended for publication in a Communist periodical as a sort of amicus brief for Herndon?
A holograph note addressed to Dr. Sharp by Ethel Turner, Executive Secretary of the League of American Writers, suggests that the manuscript was sold though one of League's benefit auctions of books and manuscript, though we have not have had a chance to track this down yet.
Laski was a highly prolific writer, yet what survives in the archives are not his manuscripts but his correspondence. This holograph draft of one of his most impactful essays on the law represents a rare survival indeed.
- Fischer, Marjorie. Palaces on Monday. New York: Random House, 1936.
- Frankfurter, Felix M. and Henry M. Hart, Jr., The business of the Supreme Court at October Term, 1934. 34 Harv. L. Rev 68 (1935).
- Gunnell, John G. The genealogy of American pluralism: from Madison to behavioralism, 17 Int. Pol. Sci. Rev. 253 (1996).
- Herndon v. Lowry, 301 U.S. 242 (1937).
- Herndon, Angelo. Let me live! New York: Random House, 1937.
- Kramnick, Isaac and Barry Scheerman, Harold Laski: a life on the left. London: Allen Lane, 1993.
- Lamb, Peter. Harold Laski (1893-1950): political theorist of a world in crisis. Review of International Studies 25, no. 2 (1999): 329-42.
- Laski, Harold J. The crisis in the theory of the state, in Alison Reppy, ed., Law, a century of progress, 1835-1935. Contributions in celebration of the 100th anniversary of the founding of the School of Law of New York University (New York: New York University Press, 1937) II: 1-31.
- ----. Reprinted in A Grammar of Politics, 4th edition (1938).
- Leuchtenburg, William E. The Supreme Court reborn: constitutional revolution in the age of Roosevelt. New York: Oxford University Press, 1995.
- Marjorie Fischer, author and critic [obituary]. New York Times, 3 November 1961.
- Thomas, Kendall. Rouge et Noir reread: a popular constitutional history of the Angelo Herndon case, 65 S. Cal. L. Rev. 2599 (1992).
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