From Chapter 10
'Killing no murder'
Class analysis
The interpretation of law presented above suggests three further questions. First, could this account of 'killing no murder' have been reached through the application of legal reasoning? It appears not. Most of the articles cited in the footnotes are critical of some aspect of OHS law, with a few of their authors also rejecting capitalism. However, none of those authorities takes the appropriation of surplus value through the disciplining of labour-time as the pivot for analysis. Instead, the pressure on lawyers to display a mastery of case law enmeshes radicals in the ideology that they set out to unravel. Some disparage attempts to locate legal processes within the dynamics of capital expansion as 'economic determinism'.[1] Disdain for the massiness of materialism is more likely to end in sophistry than in clarity about class.
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The second question flows from this answer to the first: will the law ever consider killing, when done for profit, as murder? Well ... it is conceivable that working-class pressure on a reform-minded legal profession - over a further 200 years - could extend the rule about the unintended consequences of a felony to treat some OHS violations as real crimes. What will forever be impossible under capitalism is to consider the appropriation of surplus value as an offence comparable to the non-payment of wages. The injured labourers who receive all their prescribed entitlements have no stem connecting their workplace harms to other offences by their employers. Forging that connection will require legal reasoners to injure aggregate capital instead of steering its expansion.
Our third question begs for an answer to why it is that progressive lawyers have difficulty in promoting so temperate a shift in class relations, unless the answer lies in those relations. As pointed out earlier, lawyers become agents of capital whenever they cannot think beyond the limits that the capitalists do not go beyond in their profit-taking. The failure among the establishment to reason out how killing for profit might be treated as murder is to be expected. That this bias has overtaken many in its radical wing is partly the result of the triumph of neo-liberalism since the 1970s, with its Schools of Business and Management. Nonetheless, even when the Left was on the ascendant in academe, legal progressives were burdened with an ideological impairment. Marxism-Leninism recognises that the creation of socialism requires driving beyond the seizure of the capitalist state: that apparatus must then be smashed by working people's emancipating ourselves through the creation of new forms of power. There's the rub. Progressive lawyers - whether as once-upon-a-time social democrats, or now as New Labour - aimed to rewrite the content of the laws and then to enforce those reforms. While they allowed space for worker control over safety, they showed less enthusiasm for workers' remaking the law as both content and form, on and off sites.[2] The reluctance of radicals to break through the web of legal reasoning in order to consider OHS violations as real crimes expresses a politics which dares not contemplate destroying the bourgeois state.