For Gramsci, the establishment of a hegemonic worldview required the three-phased mechanism of universalism, naturalization, and rationalization. By universalism, the dominant group portrayed its narrow-minded interests and selfish obsessions as the common interests of all people (Mouffe, p168). On one level, the ruling group may try to bring dissenting or out-groups within its umbrella, as takes place when the existing political parties try to convince feminists, gays, environmentalists, and others that their goals can be achieved through alliance with the existing parties. More theoretically, a dominant system of advertising, movies, and products tends to promote consumption and atomism, lessening the chance for popular protest or cultural critique. This outlook goes hand in hand with Edward Greer’s sentiment that people are naturally acquisitive and that the existing system is “merely the fulfillment of that innate desire” (Greer, p305).
In the strategy of naturalism, a given way of life becomes redefined to the point where "culture" is confused with "nature" at every turn, which induces submission because there is no point in fighting against nature. As for the strategy of rationalization, Gramsci points out that every ruling group gives rise to a class of intellectuals who perpetuate the existing way of life at the level of theory. Gramsci uses the term "intellectual" in the broadest possible sense to include lawyers, professors, politicians, scientists, and journalists. Gramsci's point is that domination can be found at many levels of a cultural totality-at the levels of politics, education, entertainment, news, religion and common sense. Essentially, domination is a much more complicated and multi-leveled phenomenon than previously supposed by Marxists, who focused exclusively on the public sphere as the locus of oppression (Buci-Glucksmann, p5). Gramsci equated physical force with the public sphere denoted as "political society", and hegemony with the private sphere which he called "civil society," (Prison Notebooks). Notwithstanding, Gramsci cautioned that the separation of public and private is purely methodological, since both spheres form parts within a totality, an ensemble of social relations that are economic, moral, political, religious, commercial, and artistic.(Prison Notebooks).
Negative Law & Positive Law
Gramsci wrote almost nothing about law in Prison Notebooks, but his few comments can be seen as moving toward an understanding of the dual status of law, corresponding to the two axes of power, namely physical force and hegemony (Lecture Notes).. To put the matter differently, the law is at the same time both repressive and constitutive (Prison Notebooks). For Gramsci, law had both positive and negative faucets. Negative law functioned to keep the dominant hegemony in power, thus keeping down its potential adversaries. It is important to note that this negative aspect of law, in Gramsci’s opinion, would not easily be perceived where substantive and formal legality exists. By implication, the notion of free elections could easily be confused in liberal societies, and may lead to dictatorship and oppression (Prison Notebooks, p246-247).
Positive law functioned in a less subtle context. In Gramsci’s view, positive law consisted in educating the masses with the notion of right and wrong. It also served as a springboard for the development of counter-hegemonic strategies to develop. Positive law retained the power to authorize and legitimate, as it produced a set of social institutions and practices. In other words, it authorized a particular arrangement by enabling a certain way of life by legitimating marriage and monogamy, by allowing employment at will and inheritance, or, more apparently, by enforcing a set of zoning restrictions that give rise to, for example, housing developments and shopping malls.
The bulk of law is not devoted to matters of coercion by the state; it is also concerned with voluntary enterprises that will be recognized. For example, the law regulates the relations of people who have formed together as a corporation or as a limited partnership, but it will not enforce the relations of people who have gathered as a commune. There is no criminal ban on communes, but the state will not go so far as to lend its legitimacy to the practice, so there is a tacit disapproval, and the law will recast such relationships in terms that it finds appealing. This explains Gramsci's opinion about the State's role in legislation as “educational”, by which he meant that law performs a non-repressive function of leadership and direction by suggesting a mode of life as "legal," as approved by the state. By seeing law as a constitutive force in this fashion (as productive instead of merely coercive), Gramsci was an early precursor of the social constructionist position that is gaining ascendancy in legal studies (Prison Notebooks).
Hegemony and Negative Law Today
The relationship between Gramsci’s concept of hegemony and our understanding of negative law comes two-fold: a nation-state’s modus operandi within its boundaries, and its role and function in the transnational context. On the nation-state level, it can be argued that equality historically existed in the most deceptive fashion. In liberal societies, law aimed to provide equality amongst all social classes by giving them a barrage of freedoms. However, Robert Bocock discounted this liberal equality as misleading, as it actually hid the true coercive nature of laws reflecting the nature of rule. In his own terminology, law “gives with one and takes with the other” (Bocock, p111). This sentiment was also illustrated by Eugene Genovese in his piece “The Hegemonic Function of Law”. Genovese gave a classic example of legal hegemony by discussing slavery in America. He emphasized on the nature of slavery, where human beings were degradedly traded for material items. The slaves hated their status, and some white people were not happy because it served as an economic disadvantage (slave labor was cheaper than white labor).
Notwithstanding, Genovese pointed to the relative sanctity that existed as a function of the fact that slavery was incorporated into law. He argued that because of law, people tend suppress their conflicts. Initially, the slave was seen as a property, but as time went on, the law kept redefining the slave and its role in society, to best suit the hegemony within America (in 1828 in Kentucky, a court ruled that a slave by its code was not treated as a person but a thing; in 1829 in Kentucky, a slave did have volition and his feelings could not be completely disregarded; by 1836 in Kentucky, although they were property, slaves also had personal existence. The courts said slaves had will but were at their master’s disposal. This meant a slave could be tried for murder but could not testify as a witness. Slave marriages were not recognized in law, and mixed race co-habitation was illegal. Until 1860s, slaves remained in political representation as 3/5th of a person).
This hypocritical nature of coercive law at a nation-state level is not as prevalent today, but it could be argued that many laws that hide behind the veil of equality and liberalism illustrate subtle discriminating tendencies in order to maintain the hegemony of the ruling social and ethnic class. For example, it has widely been argued that the notion of affirmative action, where western institutions are somewhat mandated to admit a certain percentage of non-white minorities to its work/school force, smacks of the same twisted rationale behind the justification of the nature of a slave- the end result is that non-white minorities continue to be defined within the context of his/her ethnicity, rather than his/her qualification. In the institutions’ overzealousness to appear racially diverse, they commit the same crimes of the American lawmakers in the 19th century.
The critical aspect of negative law today is its ability to ‘function’ unnoticed. For example, government agencies in some countries grant television licenses to stations that run approved programming. This relationship is maintained by coercive force, as the government may revoke the license of a rebelling television station, or the police may shut down the "pirate" television station. However, the actual content of the approved TV shows induce submission without physical force (i.e., in a hegemonic fashion), by suggesting a dominant mode of life or through failure to depict alternative lifestyles. Essentially, every instance of hegemony in the private sphere is backed by physical force on some level, and every act of physical force is also a symbolic performance and a hegemonic statement about the legitimacy of the state. For example, when police officers arrest a suspect, they wear official uniforms with the emblems of the state, not merely for identification, but also to establish their authority and legitimacy. An arrest is an act of physical force as well as a symbolic performance demonstrating the bounds of acceptable behavior in the eyes of the state. In this way, the dialectic of power and resistance is played out with raw force and with symbols.
Mass media (or free media, as the dominant ideologues like to call it) also plays the unmistakable role of expressing and imposing this dominant ideology. This ideology varies in different nation-states- a typical illustration can be seen in the portrayal of other countries in a particular nation-state’s movie industry. In American movies for example, more often than not, the villain is usually portrayed with an Eastern European or (more recently) Arabic accent. There are no laws regulating the portrayal of other nations in mass media, and the usual excuse is given in the broad context of mere entertainment.
However, Gramsci suggests that even in countries where the media is controlled by a dominant hegemony, there is still place for challenge and counter-hegemony. While this may be a plausible argument, Gramsci may have overestimated the range of possibilities of free speech. There exists a quasi-collaborative relationship between the media, the dominant hegemony and the submissive members of the public. The success of the media lies in its ability to cater to its audience’s tastes, desires and tolerances in order to penetrate the system. In this modern era of a 24hr news cycle, the media headlines the stories it feels most appeals to its viewership.
On a transnational level, a more adept phenomenon seems to have developed. In his prison writings, Gramsci implied that every relationship of hegemony is primarily educative, and occurs not only within a nation but in “the international field, between complex or national and continental civilizations” (Prison Notebooks). By implication, Gramsci believed hegemonic forces knew no boundaries. In today’s global climate, there is little doubt that a large chunk of the dominant hegemony resides in places like America. The capitalist lifestyle has metamorphosed into something more hegemonic in the transnational sense, and the main proponent of this hegemony has been the western powers, particularly America. The west has done everything in its power to spread capitalism on a global level, and in the process has alienated, vilified and in some cases overthrown regimes that resisted its advances. It has become apparent that law has dished out an assist to the west’s hegemonic agenda, rather than regulate the west’s propaganda. With the aid of carefully drafted ‘legitimate laws’ that have been accepted by the world community, countries like America assert its hegemonic domination on a transnational level through economic, military, political and cultural interference.
From an economic standpoint, America has been able to expand its own form of social relations mainly through the imposition of self-created laws. These laws become legitimized by international organizations such as the World Trade Organization, International Labor Organization, etc. The legitimacy of the law is established through legitimate investment. The implied condition of consent requires a subordination of the lesser countries to a capitalist and more American social order. The tough World Bank conditions, for example, make it nearly impossible for developing countries to assert any sort of economic independence from the west, as the laws governing borrowing and paying back loans have been worded in a manner that is detrimental to the developing countries’ interest. The hypocrisy of these economic laws is further highlighted by America’s refusal to sign and ratify the KYOTO treaty.
The transnational effect of hegemony is not restricted to the confines of the economy. In recent years, the west, spearheaded by America, has shown a blatant disregard to written and unwritten rules of military engagement. As the dominant hegemonic force, America has exploited even the most legitimate international military organization, NATO. Its invasion of Iraq and its subsequent threat of military action in other countries are guised under the common excuse of ‘protecting humanity’. In its overzealousness, America handpicked its major enemies and labeled them as “the axes of evil”. Astonishingly, the US has been exempted from any international tribunal for war crimes it has committed. The lack of accountability (in cases like Guantanamo Bay) is as troubling as the passive and implied consent by other countries. In its pursuit of global justice, America has waged a heroic ‘war on terrorism’. The irony of America’s position is that terrorism has been a constant threat to the global environment for many years, yet it only felt the need to ‘wage’ this war after it felt the first hand effect of terrorist attacks (9-11). While its heroic stance may be plausible, America’s fight has been undermined by the hegemonic forces which have undoubtedly dictated and shaped the direction of the war itself. Terrorism has not been defined properly by transnational law, and as a consequence America has classified enemies as it sees fit. It has used its dominance and threat of alienation as a means of coercing other superpowers into aligning itself against ‘terror nations’. In George Bush’s own words, “You are either with us or against us”.
Notwithstanding this dominant hegemony, the actions of countries like America have actually led to the creation of counter-hegemony: World Bank meetings are continuously attended by a diverse coalition of protesters, and anti-American sentiments grow as a voice of resistance against America’s military policy. Despite these efforts, legitimate laws have played a crucial role in establishing not only a hegemonic ideology of global capitalism; they have also managed to quarantine counter-hegemonic activities as borderline illegal. The consequence has been the establishment of “Americanism”- a new transnational hegemonic phenomenon propelling American values as world values.
Hegemony & Positive Law
Gramsci also believed law had a positive function by arguing that political engagement actually fostered a person’s development. In “The Modern Prince”, Gramsci reflected on the life of Machiavelli, an advisor to the princes of Florence who wrote “The Prince” in renaissance times. It explored the strategies a prince had to employ to cultivate and keep power. Machiavelli argued that one could only win power by engaging popular will, and this had to be done through politics. Machiavelli argued that even people with power had to think politically. Gramsci applied this theory in his own essay. For Gramsci, the modern prince was a new type of character in the political stage. Whereas Machiavelli argued that the prince must always understand the present as a touch to our past and our future; as part as a broader historical experience, Gramsci believed that through constant political fight and reassertion of belief, people could actually change laws, regardless of the existence of hegemonic rule. Trade unions, for example, could serve as the platform to discuss counter-hegemonic political ideas. Gramsci argued that to take advantage of historical moments where change was possible, it was necessary to engage both the emotions of a people and mythic imagery. It is this combination of thought and emotion that myth combines, which stimulates the imagination to envision something better. It stimulates the feelings to unify and mobilize a people. Essentially, the existing hegemony would be overturned by the formation of a social party led by organic intellectuals (Modern Prince).
Gramsci believed this political party had to assume a position of leadership that was linked to the citizens interested in being mobilized for change, and he acknowledged it would be a gradual process. Notwithstanding his optimism, Gramsci overestimated the ability of these intellectuals to organize a political party to challenge the hegemonic rule. It is worthy to note that many of these intellectuals actually serve (in one capacity or the other) the hegemony itself; the best brains come up with the economic strategy, develop the military weaponry, draft the political speeches, etc. Dominic Strinati points out that people “[can] accept the prevailing order because they are compelled to do so by devoting their time to 'making a living” (Strinati, p174). Essentially, Gramsci’s optimism has been belittled as idealistically plain. The Frankfurt School joined with Strinati’s argument by asserting that the pressures of mass society and the devotion to work inherently leads to forcing individuals to simply accept goals without relative reflection. Laws would be of no value or power in a society where the hegemony limits its own counter-hegemony by making every societal value- what is right and wrong- intricately tied to the hegemonic values and ideas. This rings prominently in the spectrum of family values.
Conclusion
Gramsci believed that in society, people subjected themselves to a coercive system. The inability of the masses to replace the system with one that would benefit them formed the crux of Gramsci’s hegemonic argument. Today, Law is arguably hegemonic because it compels people to comply with a set of dominant practices and institutions, without any adverse threat of physical force. This concept of hegemony can no longer be seen as merely a ‘national phenomenon’ because it encompasses people on a transnational scale. Through its function as the arbitrator of social ontology, law induces large scale compliance. Law sets the tone and the discourse for what activities are approved and disapproved. However, Gramsci underestimated the role of law in relation to the phenomenon of hegemony and counter-hegemony.
Law and rules of world order are imposed with self righteous rhetoric by the "spear carriers" on others, but time and time again, these ‘liberators’ have used and defined law to their advantage. Gramsci believed that the powerful dominated in a forceful state, and they imposed their will by using law as a tool. He suggests that the middle class, to preserve its power, has claimed to rule in the interest of all people. Even when force is used, it is done in the name of the majority. That claim to rule in the interest of the majority is part of the hegemonic and ideological control. The story of popular rule is shared through our institutions in a way similar to Hegel’s ethical support for life.
Notwithstanding, Gramsci also believes that law can also be used in an innovative way (more positive aspect). Here, he refers to the educated role of law. Gramsci argues that the state uses law to create and maintain a certain kind of society and citizen to foster certain attitudes, and most importantly to exclude certain possibilities. For example, property could be privately held, or collectively owned. Associations could be free, or not free. Slavery could be upheld or abolished. Even the requirements and rewards of citizenships are defined through law. Those who break these laws then see the punitive aspect of law. Essentially, law tends to have winners and losers. Gramsci argues that law is used to justify an existing set of regulations to make them seem normal, partly because law presents the state as the guardian of those who are ruled. When the arrangement of society contains inequality, the law upholds this inequality as well. The seeming naturalness of these arrangements makes people consent more to these arrangements.
Works Cited
Ann S. Sassoon, “Gramsci’s Politics”, Minneapolis, MN: University of Minnesota Press, 1987
Antonio Gramsci, “Excerpts from the writings of Antonio Gramsci: Selections from the Prison Notebooks”, International Publishers, 1992
Antonio Gramsci, “The Modern Prince” in Selections from the Prison Notebooks. New York: International Publishers, 1971
Chantal Mouffe, “Hegemony and Ideology in Gramsci”, in Gramsci and Marxist Theory (Chantal Mouffe ed., 1979
Christine Buci-Glucksmann, “Gramsci and the State” (David Fernbach) trans., 1980
Dominic Strinati, “An Introduction to Theories of Popular Culture”, Routledge, London, 1995
Edward Greer, “Antonio Gramsci and ‘Legal Hegemony’” in David Kairy's, The Politics of Law
Eugene Genovese, “The Hegemonic Function of Law”, in Roll, Jordan, Roll: The World the Slaves Made, New York 1976
Perry Anderson, “The Antinomies of Antonio Gramsci”, New Evolution, 1976
Richard Bellamy, ed., “Pre-Prison Writings”, translated by Virginia Cox, Cambridge: Cambridge University Press, 1994
Robert Bocock, “Hegemony”, Introduction (Chapter 5).
Rob Van Craenenburg, “Whose Gramsci: Right-Wing Gramscism”, Undercurrent, 2000
Walter Adamson, “Hegemony and Revolution: A Study of Antonio Gramsci’s Political and Cultural Theory”, 1980
