Bourgeois law sets up a system which seems, superficially, to draw its moral force from the common sense morality of ordinary people (in the West this is filtered through the formal Christian ethics internalised by our civilisation). Its actual function, of course, is to promote and enforce a social orderliness which allows the relatively untrammelled existence of social hierarchy.
(This isn’t a conspiratorial view, by the way. Conspiracies undoubtedly happen – the ruling class, and their adjutants, are as capable of getting together and discretely working towards their own agendas and advantages as anyone else – but conspiracy is not the basis of the system. Conspiracies are often criminal and, though frequently winked at by The Law, they are theoretically punishable. They are, in a very real sense, an aberration. An endemic aberration certainly – and more endemic the more confident the ruling classes get – but an aberration nonetheless. It’s important not to be too cynical about the concept of law, to imagine that it is just a sham, and that everyone at the top knows it to be. That isn’t how systems of control endure. Systems of control endure by being extremely plausible both to those who are screwed by them and those who benefit from them. Corruption is real. It is a by-product of a system that generates unaccountable and hierarchical structures. Corruption is also an important psychological category for making the system seem plausible, for making it seem to have validity and integrity. Everyone – the corrupt and the non-corrupt – partly derives their idea of what constitutes legitimacy from their idea of what constitutes illegitimacy.)
Part of how bourgeois law manages to be an effective and enduring system of control is by appearing to be impartial in its normal operation, to be aimed at securing justice except in aberrant circumstances, and to be based on moral categories… and one way in which it manages this is by, to some degree, some of the time, actually bothering to be all those things. You can get good results from the bourgeois justice system. It has to be capable of working properly in order to look like what it claims to be. You can trace the influence of popular ideas of morality in its structure and strictures. This is, to the greatest extent, the accreted result of popular pressure to reform the system. But then the absorbtion and adaptation of popular demands, the rationed distribution of progressive gains, the assimilation of democratic ideas, is another part of how systems of control survive. Ultimately, all worthwhile conceptions of ‘justice’ come from the democratic impulse from below. This isn’t to say that they come from the innate goodness of people, or the nobility of the oppressed, or the spirit of mankind, or anything like that. Rather, the oppressed – always the more universal class because they are the most widespread and the most thwarted – develop the democratic impulse towards justice precisely because they are denied it. Injustice breeds the idea of justice in people. Inequality creates the aspiration towards equality. Justice isn’t a thing that exists in the world a priori, it is a human idea. That makes it no less real, but it does mean that it bear the marks of its social origin.