2. Sumner and Ideological Censure

Indeed, in the Preface to Reading Ideologies, Sumner offered his acknowledgments to those who had assisted him before writing that, “if the arguments in the book are right […] one should also thank the social structure for reflecting this particular combination of ideas. Instead, I suppose I have to face up to my legal responsibility for the text—whether you grant me any more responsibility than that depends on how you read it” (1979a: xii).

A slightly scornful phrase that can be traced back at least as far as Lewis (1972: 16).

See also, for example, Lichtman (1975), Kellner (1978), Hirst (1979), Spitzer (1983) and Larrain (1983). Reading Ideologies was characterised as ‘Marxisant’ by Greenberg and Anderson (1981) and was likely considered ‘neo-Marxist’ by others; Sumner (1994: 303) himself later suggested that “it could have been seen as derived from the central principles of Marxian analysis as a dynamic scientific tradition”.

In the final chapter of Reading Ideologies, as part of a digression regarding appearance and perception, Sumner (1979a: 287) describes the act of using a map whilst driving: “You look at the map and it tells you that after 15 miles you will reach Manchester.” The distance from Leigh to Manchester, via the old East Lancs Road, is about 15 miles. Was this mere coincidence, or a clandestine homage to his hometown?

In an early paper that discussed the utility of semiology in the sociology of law, there was an early formulation of censure. Sumner (1974a: 16) wrote: “I wish to argue that particular laws can be seen as, inter alia, the institutionalisation by the members of the state institution of particular social meanings or taboo areas, according to the signification of the social world that is culturally dominant at the time. To put it another way law can be seen as the expression of the power of the state to signify and coerce, and laws can be seen as particular solutions to ideologically defined problems.”

More recently, in his biographical piece on Podgorecki, Wincenty (2018) argues that east European emigres to the west during this period were able to use Marxism to confer status even though this was a “shameful” and opportunistic choice (2018: 75). Thinkers such as Kolakowski (before he famously turned against Marxism) and Bauman were prepared to work within the Marxist tradition and were duly lauded and rewarded with security and promotions. Those, such as Podgorecki, who made the braver intellectual choice to shun the officially sanctioned ideology of their home country received less adulation but demonstrated their “courage and integrity” (2018: 75). Wincenty cites Sumner’s review of Law and Society as an example of how western academics of the time measured the merits of scholarly works by dint of their adherence to Marxism (2018: 76), thus somewhat glossing the nuances of their authors’ personal and political situations.

Reiner (1988: 138) notes that Becker’s famous suggestion that deviance was not a quality of the act “may have been news to criminology, but it was platitudinous to criminal lawyers”. He cites Lord Atkin’s well-known comments in a 1931 case that “the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the state to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State”.

In the US, the trend towards a more conflict-oriented, though crude, Marxist stance which better addressed issues of power was best expressed in the work of Quinney (1973) and Chambliss (1975). These contributions came in the wake of Gouldner’s (1968) famous critique of Becker. In the debate that followed, note also how both Gouldner and Becker took up positions opposed to welfare interventions by the state “in a way which would make most present day British radicals feel distinctly uneasy” (Young 1988: 297). See also Beirne (1979: 377).

The collection of conference papers published afterwards, Capitalism and the Rule of Law (National Deviancy Conference/Conference of Socialist Economists 1979), was subtitled From Deviancy Theory to Marxism, which “aptly summed up the journey taken by radical criminology over that decade” (Tierney 2010: 170).

This involved critiques of content analysis, structuralism, structuralist semiology (including Barthes and his own 1973 reading) and neo-structuralism (including Derrida, Kristeva and Althusser).

This was discussed in embryonic form in his PhD and worked up in greater detail as Chap. 7 of Reading Ideologies. Sumner (1979a: 238) suggests that what is required are a series of “chronologically ordered stages which are geared to producing increasingly precise ‘approximations’ to the nature of the ideology being investigated”. In addition, in order to understand the socio-historical conditions which produce particular modes of seeing, “a constant dialectical to-ing and fro-ing between the socio-historical context and the ideology which hopefully deepens our understanding of the connection between them after each cycle” (1979a: 242) is needed. Sumner accepts that such recourse to history alone cannot provide a perfect scientific reading of ideologies, because all readings of history are themselves products of history in an eternal hermeneutic circle of uncertainty. However, immersion in that circle is the only realistic means available for decoding discourses within wider social conditions. The application of this methodology provides the foundation for Sumner’s entire scholarly career, though it often lurks quietly in the background in his later works.

This was analogous to the position famously argued by EP Thompson in Whigs and Hunters. For him, “law was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law […] Rules and categories of law penetrate every level of society” (1975: 261). Later, as part of his memorable tussle with Althusser, Thompson returned to this theme. In his characteristically effervescent prose, he recalled that “law did not keep politely to a level but was at every bloody level; it was imbricated within the mode of production and productive relations themselves” (1978: 96).

According to Sumner, for Marx “neither mode bore any necessary relation of ‘accuracy’ to the real world”, although of course if spontaneous consciousness was able to “grasp everything on sight” then there would be no need for scientific philosophy (Sumner 1979a: 15–6).

On this point see also Sumner (1976a: 251–5).

Sumner (1979a: 287–8) continues: “I am alluding to what one might call the circle of social reality: things (people, events, matter, discourse) are seen in a particular way when perceived through the grid of a particular ideology, yet that ideology is at the same time active in the practice of another being and eventually embodied in the thing observed, so that the appearance of that thing matches its perception perfectly. […] There is, therefore, a very real sense in which understanding produces its own social reality at the same time as social reality produces its own understanding; this is the circle of social reality.”

For instance, of class instrumentalism he writes that “by no means do all laws function for the ruling class, nor did they all originate in the class struggle. This is so fantastically obvious that I refuse to waste time exemplifying it” (1979a: 254).

These sections on the ideological nature of law were later reprinted in Beirne and Quinney’s reader Marxism and Law (Sumner 1982). Writing a little later, Hunt (1985: 13–4) felt that it was “no accident” that advances in Marxist legal thinking were accelerated once ideology began to be taken seriously in texts such as Reading Ideologies.

Note Hirst’s use of the term “orthodox” here. According to Wiles (1976a: 30) this was vital because “at least in part, the argument hinges around how the grail of orthodoxy is to be defined”. In their reply to Hirst, Taylor and Walton (1975) suggested that his was an idiosyncratic use of Marxism and that their ideas belonged to an alternative Marxist tradition. Much later, Sumner (1994: 303) wrote: “Hirst’s argument amounted to a negative declaration from a rather self-satisfied ‘orthodox Marxism’; it was a censure from the safety of dogma rather than a reconstructive, progressive, argument using Marxism as a living tradition of value to the social sciences. It was indicative of the insularity and rather ecclesiastical nature of his standpoint at that time that he never considered that one could develop a Marxism that was unorthodox. No reason for clinging to orthodoxy was given, yet the world of Stalinism offered many political reasons against such an adherence to orthodoxy.”

At this point Sumner’s concern was with ‘deviance’ alone.

Sumner’s was not the only potential response to Hirst. Hunt (1980: 43), for instance, argued that Hirst’s conclusion “is incorrect because it is premised upon an insistence that Marxism can only constitute objects of inquiry at the level of its own concepts; this suggests Marxism has a finite range or set of concepts and that they exist at the macro or general societal level”. What Sumner’s approach showed, however, was that Hirst’s conclusion was incorrect even on Hirst’s own terms.

Sumner consistently takes a strong line on this point. For criticism of this interpretation of interactionism, see Downes and Rock (2007: 164–75).

This trend was still evident in some strands of Young’s later work; see, for example, Ferrell et al. (2008).

Negative ideologies can be considered as the inverse of what might be called ‘positive’ ideologies. It was noted earlier that generalised commodity exchange cannot function without the ‘positive’ ideologies of ownership, legal personality, and contract; “however, that same relation also necessitated a negative ideology: the ideology negating the non-consensual appropriation of another’s property. Negative ideologies are also necessary outcomes of social relations” (Sumner 1976a: 346).

Perhaps unsurprisingly for such a wide-ranging book, Reading Ideologies provoked a variety of responses. Carlen (1980) was scathing, finding the book full of what she saw as ‘irritating faults” and a theoretical failure, despite the fact that she did not necessarily “disagree with the general drift about what Sumner writes about law” (1980: 201). Tushnet (1980) considered that Sumner’s basic position was “confused”, and stressed that concrete historical investigations of particular ideologies would be necessary to gain a better understanding of ideology in general, a point that Sumner would presumably have agreed with. Garland (1981) was also critical. Albrow (1981), however, was broadly sympathetic to Sumner’s position, though he regretted that Sumner had not offered a concrete example of his method. Greenberg and Anderson felt that “Sumner’s analysis of the concept is the finest treatment of ideology we know” (1981: 311), built upon “brilliant and incisive critiques” (1981: 312), but they were underwhelmed by his treatment of legal ideology, as it provided “only the sketchiest beginning of an analysis” (1981: 312); again, it is not clear that Sumner would have disagreed with this. Hunt (1985) was also positive although he felt that Sumner had overstated “the general function of legal ideology” (1985: 30); later, Hunt cited Reading Ideologies as an example of the “developing trend on the Left” (1992: 105) which was dealing with law in a more serious manner in the wake of E. P. Thompson’s (1975: 266) hugely controversial claim that the rule of law was an “unqualified human good”.

Indeed, the decade was rounded out with a couple of critical book reviews in his now familiar uncompromising style (Sumner 1979b, 1979c).