What is the law?

My thesis about Federalism is that the post-revolutionary project is about more than just the constitution, it's about reconstructing and settling social norms. As Federalist theorists (especially educationalists) pointed out, there's no use enshrining respect for property (say) in law if people aren't prepared to accept that as a value. So the problem of political culture, and the structures of social power, seem to be beyond and beneath the law. The law is, if anything, an expression of those hegemonic values - a superstructure, in vulgar Marxist terms.

But it also seems that that's a shallow and broad way of looking at the law. Political culture is an amorphous phenomenon - it's the outcome of hegemonic (and counter-hegemonic) practice. But what kind of action is that practice itself? Well it's rhetoric, and it's force. Law is the hegemonic practice par excellence because it's a combination of both rhetoric and force. It's law that holds political culture together: through law, we negotiate and institute (and then renegotiate) all sorts of specific limits and structures that would otherwise be out of control.

Law fills in the gaps that ideology creates, and in that sense it's all about negotiations within hegemony. For example, ideology may say property is an absolute right; debts have to be paid - but it falters when there's a case of prioritising one debt over another (e.g. in the American post-revolutionary case, the problem of repaying credit notes to soldiers - pay at face or real value? Original or final holders?). Law enters that arena. In my example, politicians had to make the law to fit the case, but mostly the law is already there, pre-emptively, although always ready to be renegotiated.

In a sense, law is powerless against the larger claims of ideology within hegemony. Property is still king here. But in the war of position, law is a powerful tool. Precisely because it acts on tensions within the hegemonic structure, and because it shapes specific local practice only broadly governed by ideological norms, it can be a site for some level of resistance. Good laws can make things a bit better for the worse off. The guardians of law (a professional class that is in general beholden to hegemonic interests, but not always or necessarily so) could potentially, through winning many small battles, create significant change.