It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. If law is “a pure form of thought”, then it is possible to avoid the ugly fact that the capitalist law of private property means the misery of unemployment, poverty and hunger for the proletarian and his family; and that in defence of this law stand police armed to the teeth, fascist bands, hangmen and prison guards; and that this law signifies a whole system of coercion, humiliation and oppression in colonies. The book argues that the main purpose of a Marxist theory of law is to expose the belief in the Rule of Law as being a subtle and pervasive ideology which serves to obscure the structures of class domination within the State. 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. Thea Riofrancos, Resource Radicals: From Petro-Nationalism to Post-Extractivism in Ecuador (Durham: Duke University Press, 2020). of the movement of Marxist theory toward a "looser" and "flatter" concep-tion of the relationship between law and society. The source of authority for much of the work that ensued increasingly became the many expressions of Stalin’s interpretation of Bolshevik history, class struggle and revisionism, most notably his Problems of Leninism. Here, for example, is the conclusion of one of the most important representatives of the ideological neo-Kantian philosophy of law – Stammler: Through all the fates and deeds of man there extends a single unitary idea, the idea of law. In other European countries legal positivism also won itself a dominant position in the nineteenth century, because the bourgeoisie either gained state power or everywhere achieved sufficient influence in the state so as not to fear the identification of law with statute. David A. In his notebooks from the late 1850s, posthumously published as the Grundrisse, he indicates that “the concentration of bourgeois society in the form of the state” would be part of the larger systematic critique of political economy he was pursuing at the time.1Karl Marx, Grundrisse, trans. The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist-Leninist theory of society, of the state and of law. Stuchka’s article Law in Encyclopaedia of State and Law, (1925-1927), vol.3, pp.415-430. When General Theory first appeared it is doubtful that anyone, least of an Pashukanis himself, could have foreseen its immediate success and the meteoric rise of its author withi… Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet “juridical socialism”. Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. [13], In conducting the struggle with the narrow, formal legal concept of law as a totality of norms, we cannot deny the real existence of the legal superstructure, i.e. The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which in exploitative society, one part of the people can appropriate to itself the unpaid labour of another. Equally, classless communist society – having territory, population and an economy – will do without the state since the necessity of class suppression will disappear. The problem is that the Marxist thesis seems to imply the non-existence of relief for the poor, but in fact relief is there. – Marxist-Leninist theory considers a law as a unity of form and content. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. of relationships formulated and consolidated by the conscious will of the ruling class. The different branches of law are connected differently with the economy; this must never be forgotten, and this is not expressed in the above-mentioned definition. (3rd edition); and P.I. It may support the progressive development of these relationships or, on the contrary, retard them. The author [Kellreiter] distinguishes: (a) absolutism and dictatorship, and considers that the basic characteristic of these forms is that state powers are concentrated in the hands of one person. Moreover this paper will study that how Carl von Savigny influenced Karl Marx's thoughts on law. present) era and the state (or absence of one) in post-capitalist society. The abstract theoretical exposure of “bourgeois” law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Marxist Legal Theory According to Karl Marx, humans are allegedly accidents; therefore their laws are also allegedly accidents. This tendency was very strong in the first years of NEP. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. 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. Bourgeois rights were thus a vehicle for political emancipation, but the granting of formal equality under the law was not enough to overcome the individual’s estrangement from social existence so long as civil society remained fractured by property rights.4Karl Marx, “On the Jewish Question” [1844], in Early Writings, trans. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. Furthermore, constitutions and juridical forms frequently determined the form taken by class struggles.20Friedrich Engels, “Letter to Franz Mehring” [1893], in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978); Friedrich Engels, “Letter to Joseph Bloch” [1890], in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978). In identifying the most general and characteristic features we can define law as the form of regulation and consolidation of production relationships and also of other social relationships of class society; law depends on the apparatus of state power of the ruling class, and reflects the interests of the latter. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. It methodically divides the endlessly differentiated material of human desires apprehended by the senses, and defines it as an inviolable and independent connecting will. Everything depends on whether power is in the hands of a revolutionary or a reactionary class. Leading theoreticians like Engels, Kautsky,21Karl Kautsky, The Class Struggle (New York: W. W. Norton, 1971 [1892]); Karl Kautsky, “Parliamentarism and Democracy” [1893], in Ben Lewis (ed), Karl Kautsky on Democracy and Republicanism (Leiden: Brill, 2020). Law does not wither away in the dictatorship of the proletariat. To be a Marxist theory of law, a theory must be (a) distinctively Marxist, and (b) a good theory. Production relationships form the basis of society. By virtue of their membership in the political state, individuals could transcend their personal, familial, and commercial interests, thereby attaining the self-consciousness of their own freedom in the objective laws of the state. The state now came to appear as the realm where individuals’ political equality as citizens could be recognized and expressed. The reason that Das Kapital had such enormous success was that this book (“by a German economist”) showed the capitalist social formation as a living thing-with its everyday aspects, with the actual social phenomena essential to the production relations between antagonistic classes, with the bourgeois political superstructure protecting the domination of the capitalist class, with the bourgeois ideas of freedom, equality etc., with bourgeois family relations. Translated by Peter B. Maggs. 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. 5. Withering away of the law can only occur simultaneously with the withering away of the state. Clyde W. Barrow, “The Marx Problem in Marxian State Theory” (2000) 64 Science & Society 87. When it is tied to this logic Marxism does not so much offer a theory of law as a "theory against law" (Santos 1979; Cotterrell 1981a). MARXISM AND STATE THEORY. 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. However, important qualifications can also be found in Engels’ letters from that period pointing to the reciprocal effect of the superstructure upon the base. This definition characterizes the role and significance of law in class society. the bourgeoisie) and the privileged estates of feudalism and their monarch. Lenin points out that Marxist revolutionaries, as opposed to reformists, say that the existing bourgeois state cannot be seized ready-made and used in the interests of the working class. Likewise, we do not exclude the presence of survivals of the past – transitional or mixed forms – which complicate the concrete picture. Representatives of idealist philosophy of law go still further. This methodological mistake was related to the relegation of the class repressive role of law, and to an incorrect presentation of the relation between state and law (the state as the guarantor of exchange), and to mistakes in questions of morality (the denial of proletarian morality) and in questions of criminal law. Even Karl Marx gave a small tribute to this concept when he spoke of law as an ideological superstructure. To study law only as totality of norms means to follow the path of formalism and dogmatism. This is an incontrovertible truth. Marx described this state as a “parasitic body” composed of a bureaucratic and military organization that “enmeshes, controls, regulates, supervises and regiments civil society”.10Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852], In Surveys From Exile, vol. The Marxist hypothesis of law includes a materialistic perspective of social life in which law and the state (the superstructure) are subordinate to the predominant methods of creation all through human history. In contrast, Lenin advanced a critique of social democracy’s reliance on trade union activism at the expense of direct political struggles against state power. Therefore, it is a flagrant error to equate law as an historical phenomenon – including various class systems – with the totality of those features of bourgeois law that derive from the exchange of commodities of equal value. In the opposite case a result would be obtained which Lenin defined as: “Correct in form, a mockery in substance.”. In developed communism there will be no state. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. Outline of a Marxist Theory of Law. Post was not sent - check your email addresses! V.I. The book argues that the main purpose of a Marxist theory of law is to expose the belief in the Rule of Law as being a subtle and pervasive ideology which serves to obscure the structures of class domination within the State. It originally consisted of three related ideas: a philosophical anthropology, a theory of history, and an economic and political program.There is also Marxism as it has been understood and practiced by the various socialist movements, particularly before 1914. Writing that “the state is an abstraction”, and that “[o]nly the people is a concrete reality”, Marx counterposed Hegel’s constitutional monarchy with a defense of democracy.5Marx, “Critique of Hegel’s Doctrine of the State”, 85. They appear, in particular, as relations of an ideological nature, i.e. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat. 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. V. I. Lenin, “The State and Revolution” [1917], in Robert C. Tucker (ed), The Lenin Anthology (New York: W. W. Norton, 1975); V. I. Lenin, “The State: A Lecture Delivered at the Sverdlov University” [1919]. Would it be possible, for instance, to speak of Soviet law which did not somehow recognize the Soviet state, the Soviet agencies of power, Soviet courts etc.? Karl Marx, “A Contribution to the Critique of Hegel’s Philosophy of Right” [1844] and “Critique of Hegel’s Doctrine of the State” [1843], in Early Writings, trans. The attempts by certain bourgeois jurists to separate law from the state, or to contrast “law” and “force”, are dictated by the attempt to hide and conceal the class essence of law. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. Whereas reformists saw the state as a neutral apparatus, Lenin emphasized that, because it emerged as the necessary outcome of the irreconcilable class antagonisms, the state remained a “special coercive force” or machine functioning as the “instrument for the oppression of one class by another”.24V. Ellen Meiksins, Democracy Against Capitalism: Renewing Historical Materialism (London: Verso, 2016 [1995]). 221-232. 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. for a Marxist theory of law and explore whether they can be satisfied. Until the appearance of classes the state did not exist. So long Stalin was alive he did not allow any country or individual to commence research work about numerous aspects of Marx’s and Engel’s thought. Proceeding from the indisputable position that not all which is stated in a norm (in a statute) is realized in fact, Stuchka has made the incorrect conclusion that law is indeed the very relation of production and exchange. To grasp and understand the Marxist concept of State and Law, it is first necessary to be familiar with the Marxist theory of the origins and meaning of law and state as explained by Engels in his book the Origin of Family, Private Property and the State (1884). Marxist theory not only challenges the basic concepts of liberal state but also emphasises that it enslaves majority men of society for the realisation of its aims, it is to be abolished or smashed without which the emancipation of common men will never be possible. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes. Rodney Livingstone and Gregor Benton (London: Penguin, 1992). This site uses Akismet to reduce spam. The feature of power, or coercive power, also tells one exactly nothing. 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. Martin Nicolaus (Harmondsworth: Penguin, 1973 [1858]), 108. However, it is clear that the structure of family relationships, the formalization of class domination in the state organization, the formalization of class repression, all this is embraced by the different branches of law (family, state and criminal). All articles in this series, including the present one, will appear concurrently on Legal Form and Critical Legal Thinking. Thus, bourgeois scholars easily transfer law to pre-class society, find it in the pre-state life of primitive tribes, and conclude that communism is unthinkable without law. 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