'Gramsci, Hegemony, and the Law' by Douglas Litowitz in (2000) 2 BYU Law Review comments
Hegemony is a Marxist concept derived largely from the work of Antonio Gramsci. It emerged as a central theme during the hey-day of the Critical Legal Studies movement, and it remains popular in contemporary legal studies, albeit within a somewhat narrow circle of law-and-society scholars. The concept of hegemony deserves broader consideration from the legal academy because it is a critical tool that generates profound insights about the law’s ability to induce submission to a dominant worldview. The purpose of this article is to introduce Gramsci’s work to a wider audience by explaining, critiquing, and revitalizing his notion of hegemony as it applies to law.
This article is not merely a description of Gramsci’s influence. I also want to take issue with the direction taken in recent legal scholarship on hegemony. Gramsci spoke about hegemony in the singular as a large-scale national phenomenon (e.g., the hegemony of a single dominant group over all others), and that is what made his theory powerful—he was describing a phenomenon that permeated all of our lives. Recent legal scholarship eschews Gramsci’s notion of an overarching hegemony in favor of the idea that hegemony occurs only at discrete and disconnected sites such as race, age, disability, and gender. The statement of a leading scholar is instructive of this new approach: “Instead of an overarching hegemony, there are hegemonies. . . . Law cannot be view as hegemonic or not as a whole.” Much of the recent legal scholarship on hegemony builds on this post-Gramscian approach to hegemonies, which is noteworthy for its reliance on historical studies of hegemony and cross-cultural examples of domination and resistance. Many of these scholars have tacitly abandoned the search for an overarching hegemony at work in the current legal system.
Against this line of scholarship, I will argue in favor of the continuing relevance of Gramsci’s notion of hegemony in the singular. In particular, I will argue that the current legal system is hegemonic in the Gramscian sense in that it induces people to comply with a dominant set of practices and institutions without the threat of physical force and that this hegemony is overarching because it encompasses people of diverse races, classes, and genders. The law induces passive compliance in large measure through its function as constitutive of social ontology—it provides rules for the proper construction of authorized institutions and approved activities, such as setting up corporations, buying and selling real estate, drafting wills, hiring employees, and so on; it is a hegemonic code that replicates the social ontology in much the same way that a genetic code replicates a biological organism.
Part II of this article focuses on Gramsci’s use of the term hegemony and the concept’s implications for legal doctrine and prac-tice. Part III traces the impact of hegemony as a critical concept in legal scholarship over the last twenty years and then proceeds to a sustained critique of recent scholarship on hegemony. The final part, Part IV, draws from literary works to support my reformulation of hegemony as the dissemination of a dominant code composed largely of unchallenged background assumptions that undergird the law. Part IV presents a revised conceptualization of hegemony that does away with Gramsci’s notion that law is the hegemonic tool of a dominant class in favor of the notion that law represents a dominant code or map that perpetuates the status quo and its attendant inequalities, oppressions, and disaffections. This reformulation of Gramsci’s concept of hegemony captures fresh insights about the law’s ability to induce submission and paralysis while avoiding Gramsci’s reliance on orthodox Marxist categories that are no longer tenable. Still, hegemony remains a critical and negating tool, not a positive concept. That is, the recognition of hegemony is a tool to raise one’s consciousness: it clears away the distortions and artificial boundaries that insulate the existing legal framework, but it cannot provide a blueprint for a better system. This means that Gramsci’s work provides important insights for understanding how the law sustains un-equal power relations, but it offers scant direction for reforming the law
