Such a concept is a caricature of Marxism. Learn how your comment data is processed. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. This chapter begins with a discussion of Marxism, which is a theory about the meaning of history. Distinguishing between the form of rule and the class essence of the state is particularly important for the correct strategy of the working class in its struggle with capitalism. Thus, the real fact-concentration of the means of force and coercion in the hands of a particular class-is concealed and masked by the ideology of the bourgeoisie. Proceeding from the equation of production and social relationships, Stuchka defined law as a “system (or order) of social relations corresponding to the interests of the ruling class and protected by its organized force”. In studying bourgeois revolutions, French restorationist historians – Guizot, Mineaux and Thierry – concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. William Chambliss has argued that ‘at the heart of the Capitalist system lies the protection of Private Property. This preview shows page 1 - 2 out of 14 pages. The predominant approach to law and the state therein was the topological metaphor of the productive “base” consisting of the forces and relations of production, and the corresponding “superstructure” of the political and juridical forms through which it would be expressed. The different forms of rule had already arisen in slave-owning society. This approach is also incorrect and non-dialectical. Soviet law, like any law, will cease to exist if it is not applied. Conversely, the same form of government (for instance a democratic republic) which was encountered in antiquity as one of the variations of the slave-owning state, is in our time one of the forms of capitalist domination. materialist, understanding of social phenomena. We must demystify those parts of the state that are obscured by legalistic phraseology and liberal prejudice. Post was not sent - check your email addresses! Law in bourgeois society serves not only the facilitation of exchange, but simultaneously and mainly supports and consolidates the unequal distribution of property and the monopoly of the capitalist in production. This result is not achieved automatically by laissez faire, in the same way that prices are established under free competition. This essay seeks to familiarise young students of society with the basic propositions of the Marxist theory of the state. We shall not touch upon the question of the degree to which the legal ideology of the exploiting classes is capable of correctly reflecting reality, and in what measure it inevitably distorts it (representing the interest of the exploiting class as the social interest in order, legality, freedom etc.). In developed communism there will be no state. . This means you are free to share/repost/republish/remix for non-commercial purposes on condition that you acknowledge CLT and link to the source page. He deals just as simply with the proof of the eternity of law. Law and State. Marx’s analysis of the state thus spanned two related but nevertheless distinct standpoints: the philosophical perspective of his earlier writing, where the state is a juridical fiction that masks the class interests openly expressed in civil society, and a historical-political perspective where it is a social relation that reproduces a specific balance of forces in society. Economic Relations and the Law. But he speaks of criminal and state law, not entirely consistently with his other position, i.e. For an ongoing debate on the merits of the base/superstructure distinction, see Anandha Krishna Raj, “. Ralph Miliband, “Marx and the State” (1965) 2 Socialist Register 278; Axel van den Berg, The Immanent Utopia: From Marxism on the State to the State of Marxism (Princeton: Princeton University Press, 1988). The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. Indeed, Marxist theory overlaps with much of the current work within critical theories of law, such as radical feminism and race legal theory. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property. Much is achieved by simple threat, by the knowledge of helplessness and of the futility of struggle, by economic pressure, and finally by the fact that the working classes are in the ideological captivity of the exploiters. Gold, Clarence Y. H. Lo, and Erik Olin Wright, “Recent Developments in Marxist Theories of the Capitalist State” (1975) 27 Monthly Review 29. The positions outlined in this excerpt contain a series of mistakes. Google Scholar In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov-Ladyzhensky. The form of exploitation determines the typical features of a legal system. Although this has been explained as the gap between the young and the mature Marx, there are also certain continuities.11Louis Althusser, For Marx (London: Verso, 1965). Ideology as Law and Law as Ideology. Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1971). It has been suggested that Marx’s critique of the bureaucracy in the earlier writings captured the essence of his thoughts on the state, making it less of a priority than the critique of political economy.13Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge: Cambridge University Press, 1968), 51–52. To categorize them together means to introduce an unlikely confusion. Your email address will not be published. This study may not be replaced with ready citations from Hegel with respect to the “transformation of form into substance and substance into form”. Others have pointed to at least two different understandings of the relationship between the economically dominant class and the state, which left unresolved the question of what under what conditions it could be claimed that the state acted in its interests.14Ralph Miliband, “Marx and the State” (1965) 2 Socialist Register 278; Axel van den Berg, The Immanent Utopia: From Marxism on the State to the State of Marxism (Princeton: Princeton University Press, 1988). In his opinion, Marx considered only relations of production and exchange to be social relations. as relations which are formed in connection with certain views and are supported by the conscious will of the people. Together these strands of research continue to revamp and adapt the tradition of Marxist thinking about the state, contributing to its ongoing development as an explanatory theoretical framework. 16. This is all the more true with respect to the legislative creation of norms. Legal Relations and Class Relations. This process, which in Marxist discourse is known as the withering away of the state and law, 20 See Friedrich Engels, ‘Anti-Dühring’, in Karl Marx and Friedrich Engels, Collected Works: Volume 25, (London: Lawrence and Wishart, 2010), 267-268; also see Lenin, The State and Revolution (1974). Marx, “Critique of Hegel’s Doctrine of the State”, 88. However, in the Eighteenth Brumaire of Louis Bonaparte, Marx sketched a picture of an exceptional form of the state that superimposed itself over society to arrest the sharpening antagonisms between different class fractions. But Stammler is not embarrassed by the scantiness of factual argument. Law and State. It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society. The civil service in particular, composed of qualified professionals and open to entrance from all ranks of society, was tasked with upholding the “universal interest of the state”.2G. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. The development of these sciences is in turn determined by the history of society itself, i.e. Soviet law as a special form of policy followed by the proletariat and the proletarian state, was intended precisely for the victory of socialism. Louis Althusser, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses, trans. Telos: Critical Theory of the Contemporary 35:5 (1978) 11. This definition also introduces confusion because it confuses law with economics. As the title of this paper indicates, my argument is that law and state are holes in Marxist theory. Stuchka’s article Law in Encyclopaedia of State and Law, (1925-1927), vol.3, pp.415-430. Marx, “Critique of Hegel’s Doctrine of the State”, 85. Evolutionary and reformist currents in the Second International following Bernstein maintained that the state was a neutral institution that could be progressively taken over through regular electoral participation by working class parties. The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Attempts to consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Today, Marxist state theory is largely an open-ended and intellectually pluralistic research framework. These [owners – eds.] Coercive power exists in every human society – both in the tribal structure and in the family, but there was no state.” And further, Lenin concludes: “The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated. Leading theoreticians like Engels, Kautsky,21Karl Kautsky, The Class Struggle (New York: W. W. Norton, 1971 ); Karl Kautsky, “Parliamentarism and Democracy” , in Ben Lewis (ed), Karl Kautsky on Democracy and Republicanism (Leiden: Brill, 2020). Lenin, A Contribution to the History of the Question of Dictatorship (1920), LCW, vol.31, p.353. 1. Fred Block, “The Ruling Class Does Not Rule: Notes on the Marxist Theory of the State” (1977) 33 Socialist Revolution 6; Theda Skocpol, “Political Response to Capitalist Crisis: Neo-Marxist Theories of the State and the Case of the New Deal” (1980) 10 Politics & Society 155; Ira Katznelson, “Lenin or Weber? In this paper we will study the theory of law of Karl Marx. As I will suggest, much of what is offered as Marxist theory of law satisfies one but not the other condition. However, a number of times Lenin noted that Marx’s great service was that he did not limit himself to the description of the economic “skeleton” of capitalist society, but that: in explaining the construction and development of a definite social formation “exclusively” by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. However, more than once Marx directly points out the existence of social relationships which are not production relations but which merely derive from them and correspond to them. It may support the progressive development of these relationships or, on the contrary, retard them. a tendency which is “peculiar to the law of the advanced”, that is, capitalist, countries), finds its “fullest” expression in Soviet legislation. From the policy of limiting its exploitative tendencies and the elimination of its front ranks, we moved to the policy of liquidating the kulaks as a class by widespread collectivization. There is agreement that the state has a material existence, as a set of institutions but also as a collection of political, ideological, legal, economic, and social practices. In connection with this, we also find the theory of bourgeois jurists-which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting in the interests of the whole society. Property law clearly benefits the wealthy more than those with no property. Pashukanis was merely one of a dozen authors in the Soviet Union to publish on the Marxist theory of law and state during the years 1923 to 1925. Translated by Peter B. Maggs. Rodney Livingstone and Gregor Benton (London: Penguin, 1992). In common with important figures in other intellectual disciplines, such as history, in late 1930 Pashukanis undertook a major self-criticism which was qualitatively different from the incremental changes to his work that he had produced earlier. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. The dependence of law on the state, however, does not signify that the state creates the legal superstructure by its arbitrary will. The Object of Marxist Theory of Law. For law under the proletarian dictatorship has always had the goal of protecting the interest of “the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction. Marxists fight for: (a)The retention and extension of democratic rights under capitalism. The theoretical mistake of exaggerating the importance of market relations can be the basis for right opportunist conclusions about always preserving the bourgeois forms of law corresponding to private exchange. formalized class repression) with the ideology of equivalent retribution. It is impossible to give a general definition of law without knowing the law of slave-owning, feudal and capitalist societies. In the bourgeois theory of the state this question not only could not be developed, but could not even be correctly posed, because bourgeois science always tries to disguise the class nature of all states, and in particular the class nature of the capitalist state. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. tives the theory of law self-destructs: "Laws as a specific object of analysis disappear" (Hirst 1979:163). Piers Beirne and Robert Sharlet (London: Academic Press, 1980). In prioritizing the historical and technological development of the material productive forces of society and the corresponding relations of production, “orthodox” Marxism has been seen as reducing the political and juridical domains to secondary ideological expressions of these primary social forces. Marxist theorizing about “the state” has made some progress over the past half-century, but many problems remain. This consists of using formal logical conclusions in order to move from particular norms to more general concepts and back, proceeding from general positions to propose the solution of concrete legal cases or disputes. This political dimension further complicates the claim that there could be a unitary theory of the state, and requires attention to both the historical and ideological context within which attempts to develop such a theory have been made. The Communist Revolutions in Eastern Europe did not lead to greater equality and freedom as Marx would have hoped. We need decisions of cases, not formally, but in their essence; the state of the working people, as distinct from the bourgeois state, does not hide either its class character or its goal – the construction of socialism. Choices in Marxist Theories of Politics” (1981) 29 Political Studies 632; Peter B. Evans, Dietrich Rueschemeyer, and Theda Skocpol (eds), Bringing the State Back In (New York: Cambridge University Press, 1985). ... and content of a Marxist theory of law wiIl necessarily be concerned to explore the role of law in these three areas. To assign the customs and the norms of pre-class society to the area of technology would mean to give the concept of technology a very extended and undefined sense. In particular, the change of the form of government depends on concrete historical conditions, on the condition of the class struggle, and on how relationships are formed between the ruling class and the subordinate class, and also within the ruling class itself. Production relationships form the basis of society. “For power and subordination”, wrote one of the Russian bourgeois jurists (Lazarevsky), “two elements are necessary: the consciousness of those exercising power that they have the right to obedience, and the consciousness of the subordinates that they must obey.”, From this, Lazarevsky and other bourgeois jurists reached the following conclusion: state power is based upon the general conviction of citizens that a specific state has the right to issue its decrees and laws. 2 (London: Verso, 2010) 186, 237. are tied by exchange and the contractual relationship is the form of this exchange. The most noteworthy treatment of the juridical as a reflection of social processes was Pashukanis’ commodity-exchange theory.25Evgeny Pashukanis, Pashukanis: Selected Writings on Marxism and Law, ed. Thomas McCarthy (Boston: Beacon Press, 1975); Claus Offe, Contradictions of the Welfare State, ed. Marx traced the growing separation between civil society and the state as part of the transition from the estate and guild societies of the late medieval period to the consolidation of mercantile capitalist society in eighteenth century northwestern Europe. Friedrich Engels, “Socialism: Utopian and Scientific” , in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978) 713. What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ...; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society. In the later editions of The Revolutionary Role of State and Law, Stuchka supplemented his definition of law, developing the theory of the so-called three forms of law. It is clear that while an individual statute may be removed from the real legal order and remain a pious wish, concrete legal relationships may never be removed from the consciousness and will of the ruling class, may never be transferred from the superstructure to the base without parting from the heart of historical materialism. I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war. 2 Law and state are closely connected; law exhibits a relative autonomy I'rom the state. We cannot do without them. 2, pp. From a resolution of the XVIIth Party Conference (1932). . This does not mean that the ruling class has to use physical force in every case. Here the real significance of the legal superstructure appears. We already saw how Stammler, with the help of scholastic contrivances, tries to show that concrete facts have no significance for the definition of law. no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. In the present, at least four new theoretical frontiers are being opened to supplement previous omissions. In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. This small book, first published in 1924, has now been translated into several Western and Eastern languages, but the English translation of the first edition appears for the first time below. 14. ibid. Bourgeois property is not exhausted by the relationships between commodity owners. When we say that social relationships have assumed a legal expression, this means inter alia that they have been given a coercive nature by the state power of the ruling class. Often legal form hides economic content directly contrary to it (thus in the period when we conducted the policy of restricting the kulak, the leasing of a horse or tools by a poor peasant to a rich one often hid the sale of the first’s labour power to the second). On this basis Marx defined the state and all its laws as mere instruments of class domination, which … Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2007); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham: Duke University Press, 2009); Mark Neocleous, Critique of Security (Edinburgh: Edinburgh University Press, 2008); Brendan McQuade, Pacifying the Homeland: Intelligence Fusion and Mass Supervision (Berkeley: University of California Press, 2019). Likewise, we do not exclude the presence of survivals of the past – transitional or mixed forms – which complicate the concrete picture. 13. Ideology as Law and Law as Ideology. In a society like the United States, most examples of Marxism occur in theory and not in practice. A second unresolved tension was the relationship between the economic-productive base and the political, legal, and ideological superstructure through which these social relations were mediated and expressed.15For an ongoing debate on the merits of the base/superstructure distinction, see Anandha Krishna Raj, “Law as Superstructure” Legal Form (3 October 2018); Nate Holdren, “Some Hasty Musings on Matters Legal and Economic” Legal Form (18 November 2018); Matthew Dimick, “Base and Superstructure as Ontology” Legal Form (17 August 2019); Nate Holdren and Rob Hunter, “No Bases, No Superstructures: Against Legal Economism” Legal Form (15 January 2020); Matthew Dimick and Dom Taylor, “More Depth, Less Flatness: Marx’s Negative Ontology of Social Totality” Legal Form (18 April 2020). But this difference by itself is worthless. It is not only important to “read” the norm, but also to know what class, what state, and what state apparatus is applying this norm. Lise Vogel, Marxism and the Oppression of Women: Toward a Unitary Theory (Leiden: Brill, 2013 ); Tithi Bhattacharya (ed), Social Reproduction Theory: Remapping Class, Recentering Oppression (London: Pluto Press, 2017); Kirstin Munro, “‘Social Reproduction Theory’, Social Reproduction, and Household Production” (2019) 83 Science & Society 451. Law, for bourgeois sociologists, becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class. Friedrich Engels, “Letter to Conrad Schmidt” . 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