Rape Law Qua Legal Form (2013)

RAPE LAW QUA LEGAL­FORM I ­ Introduction The purpose of this essay will be to examine the structure of rape­law (in general) through the 1 notion of the legal­form as developed by E. Pashukanis. The general argument he develops is that all legal relations derive their form through simple commodity­exchange. This (structure) may be broken down into the following basic elements ­ a. The Legal Relation: The relation between two individual right holders. Relation between man and man (i.e. a peculiar/historic form of social relation). b. Legal Subject: The basic building block of any legal relation. A particular way of conceiving the human being. c. Object of Rights: Relation between man and nature. Pashukanis writes (in his General Theory of Law and Marxism) that the basic methodology of any social science must differ radically from the natural sciences. The main difference is the following ­ the objects of investigation of the natural sciences are eternal/everlasting. In this sense, Newton's discovery of the laws of gravity (for instance) is not tied down to the specific historical epoch to which he belonged. For the social sciences (such as law, economics etc.) this is not the case. The truths they investigate are historical, and peculiar to the times in which they are discovered. Bourgeois jurisprudence therefore commits the foundational error of taking law as a natural/eternal category, instead of a particular form of human relations which is specific to Capitalism. Drawing upon this insight, I will seek to highlight how each of the three elements of the legal­form (legal relation, subject, as well as object of rights) are at play in rape­law. The legal­relation can be conceived of as a transaction between the victim and the perpetrator in which the latter wrongly takes something from the former. That which he takes (the victim's right to his/her person/bodily integrity) becomes here the object of the right in question. Both the victim as well as the perpetrator are reduced to legal subjects. The immediate implication of this is that a complex social phenomenon is reduced to a simple/isolated/abstracted one­to­one transaction between atomised individuals. The recent Delhi Gang Rape case was ample testimony to this (overreducing) feature of the law. We know that as much as the court may have liked to humanise the perpetrators (by taking into account their social backgrounds, etc.) they ultimately had to make a decision based on the bare application of the statute. The latter does not allow such complex social facts to be taken into account. Even in a judgment on the issue (where such complexities get maximum play) the Court cannot meddle with the outcomes of " an open and shut case ". Then what do criticisms 1 References to the IPC, CrPC and other specific statutes will be purely illustrative.