1. The labels of ‘instrumentalist’ and ‘structuralist’ were initially applied to the theories of the state advanced by Miliband, Ralph, The State in Capitalist Society (London: Weidenfeld, Nicholson, 1969)Google Scholar; and Poulantzas, Nicos, Political Power and Social Classes (London: New Left Books, 1973)Google Scholar. Several writers have noted the inadequacies of these labels for depicting recent Marxist approaches to law and the state. See, for example, Holloway, John and Picciotto, Sol, State and Capital: A Marxist Debate (London: Edward Arnold, 1978)Google Scholar. While we acknowledge these difficulties, we have chosen to utilize the instrumentalist-structuralist categories for two reasons. The first is for the purposes of simplifying the present discussion. The second relates to the continuing popularity of the labels in the literature.

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3. Jessop, Bob, The Capitalist State (Oxford: Martin Robertson, 1982), 12Google Scholar.

4. Ibid.

5. See, for example, Miliband, The State in Capitalist Society; and Domhoff, William, The Higher Circles (New York: Random House, 1970)Google Scholar.

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13. It should be noted that the term ‘appearance’ has a particular meaning in its Marxist usage. As Hall and his colleagues state:

The notion of appearance as used in Marx is not the same as the commonsense meaning of the term ‘false appearances,’ if by that we understand something which is simply an optical illusion, a fantasy in men's imagination. The term ‘appearance’ in Marx implies a theory of darstellung or representation—a theory that a social formation is a complex unity, composed of different levels and practices, where there is no necessary identity or correspondence between the effects a relation produces at its different levels. Thus, ‘appearances’ in this are false, not because they do not exist, but because they invite us to mistake surface effects for real ‘relations,’ **Stuart Hall, Critcher, C., Jefferson, T., Clarke, J. and Roberts, B., Policing the Crisis: Mugging, The State and Law and Order (London: Macmillan, 1978), 198Google Scholar.

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15. Ibid., 184.

16. Some writers, for example, have chosen to describe structuralists as “Left wing Parsonians.” See Laxer, Gordon, “Foreign Ownership and Myths About Canadian Development,” Canadian Review of Sociology and Anthropology 22, no. 3(1985), 334Google Scholar.

17. Picciotto, Sol, “The Theory of the State, Class Struggle and the Rule of Law,” in Fine, B. (ed.), Capitalism and The Rule of Law (London: Hutchinson, 1979), 176Google Scholar.

18. See also the discussion of law in the corporate-welfare state in Fraser, “The Legal Theory We Need Now.”

19. Picciotto, , “The Theory of the State, Class Struggle and the Rule of Law,” 177Google Scholar.

20. Fraser, “The Legal Theory We Need Now,” and Picciotto, “The Theory of the State, Class Struggle and the Rule of Law.”

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22. See, for example, Kerruish, Valerie and Duncanson, Ian, “The Regulation of Civil Liberty?” Law in Context 4 (1986)Google Scholar.

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25. See, for example, the discussion of the ‘right to work’ and how it has been appropriated by the right in its attack on organized labour in White, R.D., Law, Capitalism and the Right to Work (Toronto: Garamond Press, 1986)Google Scholar.

26. Sumner, Colin, “The Rule of Law and Civil Rights in Contemporary Marxist Theory,” Kapitalistate 9 (1981), 65Google Scholar.

27. In this regard, although discussions such as Arthurs's on the emergence of industrial citizenship and the changing legal relations between the state, big business and organized labour, indicate a significant development (Arthurs, Harry, “Developing Industrial Citizenship: A Challenge for Canada's Second Century,” The Canadian Bar Review 45 (1967Google Scholar)), it is important to note that only about 40 percent of full time workers in Canada (most of whom are male) are unionized. See, for example, White, , Law, Capitalism and the Right to Work, 73Google Scholar.

28. Thompson, E.P., Whigs and Hunters (Harmondsworth: Peregrine, 1975), 263Google Scholar.

29. Mandel, Michael, “Marxism and the Rule of Law,” UNB Law Journal 35 (1986), 20Google Scholar.

30. Pashukanis, E., Law and Marxism: A General Theory Arthur, C. (ed.), (London: Ink Links Ltd., 1978)Google Scholar.

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34. Thompson, Whigs and Hunters.

35. Hall, Stuart and Scraton, Phil, “Law, Class and Control,” in Fitzgerald, M. et al. (eds.), Crime and Society: Readings in Theory and History (London: Routledge and Keagan Paul, 1981)Google Scholar.

36. This is the case, for example, in Marx's analysis of the Factory Acts. Workers won a legal victory in that law was used to set restrictions on capital.

37. Hall, and Scraton, , “Law, Class and Control,” 493Google Scholar.

38. See Sumner, “The Rule of Law and Civil Rights in Contemporary Marxist Theory,” and Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and Law.

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40. Tigar, M. and Levy, M., Law and the Rise of Capitalism (New York: Monthly Review Press, 1977)Google Scholar.

41. Ibid., 285-286.

42. In some respects, this is similar to the Gramscian notion of a ‘counter hegemony.’ See Gramsci, A., Selections From the Prison Notebooks (New York: International Publishers, 1971)Google Scholar.

43. The difference between a Marxist and a Weberian or liberal orientation should be clear here. Whereas liberals are intent on improving the ‘life chances’ of disadvantaged groups and hence their ability to compete for scarce resources of an economic, social and political nature (equality of opportunity), Marxists aim for a more complete restructuring of the social order whereby the relations of productions would not be based upon force and coercion (equality of condition).

44. See, for example, Mandel, Michael, “Democracy, Class and Canadian Sentencing Law,” in Brickey, and Comack, (eds.), The Social Basis of LawGoogle Scholar; and Jock Young, “Left Idealism, Reformism and Beyond: From New Criminology to Marxism.”

45. Mandel, “Democracy, Class and Canadian Sentencing Law.”

46. For a more thorough discussion of this idea, see Isaac Balbus, “Commodity Form and Legal Form: An Essay on the ‘Relative’ Autonomy of the Law,” in Reasons, and Rich, (eds.), The Sociology of Law (Toronto: Butterworths, 1978)Google Scholar.

47. Mandel is aware of the limited nature of such a reform. He states: (A) system based on utilitarian general deterrence … would thus fulfill as closely as class society permits the democratic ideals of equality before the law and the separation of the public and private spheres” (emphasis added), Mandel, Michael, “Democracy, Class and Canadian Sentencing Law,” 152Google Scholar.

48. See, for example, Reasons, C., Ross, L. and Patterson, C., Assault on the Worker: Occupational Health and Safety in Canada (Toronto: Butterworths, 1981)Google Scholar; and Reiman, Jeffrey H., The Rich Get Richer and The Poor Get Prison (2nd ed.; New York: John Wiley & Sons, 1984)Google Scholar.

49. Reiman, , The Rich Get Richer and The Poor Get Prison, 156Google Scholar.

50. Glasbeek, H. and Rowland, S., “Are Injuring and Killing at Work Crimes?” Osgoode Hall Law Journal (1979)Google Scholar.

51. For example, criminal negligence, assault, criminal breach of contract, conspiracy and common nuisance.

52. Glasbeek, and Rowland, , “Are Injuring and Killing at Work Crimes?” 523Google Scholar.

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54. Billings as quoted in Roberts, Kim, Public Interest Advocacy in Canada (Ottawa: Department of Justice Canada, 1984), 58Google Scholar. Emphasis added.

55. It should be emphasized that the claim is not being made that any of these legal techniques are inherently progressive. Although there are obvious advantages, for example, in individuals pooling their resources in class action suits, often the nature of the aggregate formed in these suits is based on a narrow issue and the individuals may share little beyond a common claim against another party. On the advantages that an organization has over an individual when dealing with legal disputes, see Galanter, M., “Delivering Legality: Some Proposals For the Direction of Research,” Law and Society Review 11 (1976)CrossRefGoogle Scholar. Because of their limited common interest, these aggregates are unlikely to remain a collective force beyond the life of a specific legal dispute. This does not mean, however, that groups fighting for progressive change cannot use class action suits as one method of achieving this change, although it is recognized that the courts are highly restrictive in their willingness to recognize these cases. For a discussion on the restrictive nature of class action suits in the U.S., see Handler, J., “Social Movements and the Legal System: A Theoretical Perspective,” in Blankenberg, E. (ed.), Innovations in the Legal Service (Cambridge: Gunn and Hain, 1980)Google Scholar.

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57. Rush, Stuart, “Collective Rights and Collective Process: Missing Ingredients in the Canadian Constitution,” Socialist Studies: A Canadian Annual 2 (1984)Google Scholar.

58. The two exceptions are the added protection for women in Section 15, and Section 35, which confirms “existing” aboriginal rights.

59. Rush, , “Collective Rights and Collective Process: Missing Ingredients in the Canadian Constitution,” 18Google Scholar.

60. Working class rights include the right to employment, the right to the full enjoyment of the product of one's labour, the right to the enjoyment of just, safe and favourable working conditions and the right to collective bargaining. Aboriginal rights include the right to self-government and the right to title of land. Examples of women's rights are the right to full participation in the economic and political affairs of the country and the right of equal pay for work of equal value.

61. One example is the frequent attempt by owners to assert that a closed union shop is a violation of the individual worker's freedom of choice to be a non-union employee.

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63. Glasbeek, Harry, “Workers of the World, Avoid the Charter of Rights,” Canadian Dimension 21 (1987)Google Scholar.

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66. Wexler, Stephen, “Practicing Law for Poor People,” Yale Law Journal 79 (1970), 1053CrossRefGoogle Scholar.