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. In this definition, as he himself indicated, there was room only for the law of property and the law of obligations. Pashukanis theorized law as an expression of the contractual and transactional nature of capitalist society; consequently, the revolution in the relations of production would lead to the withering away of law and its replacement by administration following the completed transition to communist society. Actually the significance of one form or another can be gleaned only by taking into account the concrete historical conditions under which it arose and existed, and only in the context of the class nature of a specific state. – all this of course is not technology and not technical methods, but the customs and norms of social order. For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production. As the title of this paper indicates, my argument is that law and state are holes in Marxist theory. 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. 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. 2. Neo-Marxism and the Origin of the Committee on States and Social Structures” (2019) 72 Political Research Quarterly 714. Is There a Marxist Theory of the State? Hegel understood the modern state to be the embodiment of rationality and universality as developed over the course of human history. This respected scholar consciously introduces confusion, consciously ignores the concrete historical conditions under which the working people actually can exercise administration of the state, acting as organized collectives. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand “that the legal idea is a purely methodological means for the ordering of spiritual life”. In particular, the revolutionary role of the legal superstructure is enormous in the transitional period when its active and conscious influence upon production and other social relationships assumes exceptional significance. a tendency which is “peculiar to the law of the advanced”, that is, capitalist, countries), finds its “fullest” expression in Soviet legislation. Last, but not least, the language and vocabulary of academic discourse in the 1920s had been rich, open-ended and diverse, and varied tremendously with the personal preferences of the individual author; this gave way to a standardized and simplified style of prose devoid of nuance and ambiguity, and which was very much in keeping with the new theoretical content which comprised official textbooks on the theory of state and law. It may support the progressive development of these relationships or, on the contrary, retard them. and Rosa Luxemburg23Rosa Luxemburg, “Reform or Revolution” [1900], in Helen Scott (ed), The Essential Rosa Luxemburg (Chicago: Haymarket, 2008). Instead of class law, philosophers such as Stammler dream up abstractions, “pure forms”, general human “ideas”, “whole and durable bonds of will” – and other entirely shameless things. These practices secure the state’s claim to legitimacy by reproducing it as the representative of the general social interest while continuing to facilitate capital accumulation, mediating relations between competing fractions of the capitalist class and integrating these fractions into the global circulation of capital. On this basis Marx defined the state and all its laws as mere instruments of class domination, which … Your email address will not be published. But, in the first place, it is incorrect to subsume the property relations of slaveowning or feudal society under the concept of civil, i.e. G. W. F. Hegel, Elements of the Philosophy of Right, ed. This classification is very typical of the confusion which bourgeois scholars consciously introduce into the question of the state. Academia.edu is a platform for academics to share research papers. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm 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). 8. Alternative Marxist Approaches to Law. 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. 13. The bourgeois theory of the state is 90% the legal theory of the state. He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while “the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules”. Finally, adding that law deals not with the internal procedure of thoughts as such, but with human interaction, Stammler gives this agonizing and thoroughly scholastic definition: The concept of law is a pure form of thought. Whereas Marx, Engels and classical Marxist thinkers had little to say about the organization of the state in a socialist society, presuming the modern state to be specific to the capitalist mode of production, Vladimir Lenin pioneered the idea of a revolutionary state based on his theory of the revolutionary vanguard party and organizational principles of democratic centralism. Equally, classless communist society – having territory, population and an economy – will do without the state since the necessity of class suppression will disappear. Friedrich Engels, “Letter to Conrad Schmidt” [1890]. formal ideas and concepts), they ignored the socio-economic and political essence of the matter. 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. 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. Karl Marx and Friedrich Engels, “Manifesto of the Communist Party” [1848], in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978), 475. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. Accordingly, it gives insufficient concrete indication of the practical struggle against bourgeois influences, and against opportunist distortions of the Party’s general line on Soviet law. ... and content of a Marxist theory of law wiIl necessarily be concerned to explore the role of law in these three areas. It is clear that the terms “right” and “law” are used here not in their direct sense, but by analogy. 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. To search for the basic characteristic of society and social relations in an area other than production relationships means to deprive oneself of the possibility of a scientific understanding of the laws of development of social formations. (1995). This professorial rubbish is presented without the least attempt at factual proof In actuality it would be rather difficult to explain how this “unity of the legal idea and its equal appearance” gave birth to the laws of the Twelve Tablets of slave-owning Rome, the serf customs of the Middle Ages, the declarations of rights of capitalist democracies, and our Soviet Constitution. Hegel saw constitutional monarchy as the state form that best combined the universal lawmaking power of the legislature (elected by corporate bodies in civil society) and the particular executive power of the civil service, forming a unity represented in the figure of the individual sovereign. In the second place, state law may not be equated with the so-called Rechtsstaat of the bourgeoisie. 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. 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). Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge: Cambridge University Press, 1968), 51–52. This definition stresses three aspects of the matter. Such crises present big problems for the ruling class because the state, and the constitutional laws that surround it, are deliberately mystified. The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Stuchka looks differently at the matter. Marxism was first publicly formulated in … The character of formalization does not depend on the “free will of the legislator”; it is defined by economics, but on the other hand the legal superstructure, once having arisen, exerts a reflexive effect upon the economy. Can one be surprised at Lenin’s sharp reaction to Stammler when he says that: “From stupid arguments, Stammler draws equally stupid conclusions.”. Conversely, to ignore exchange in considering the problems of Soviet law leads to “leftist” positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. In the same way as the state, law is inseparably tied to the division of society into classes. As a corollary, this has also led to increased interest in the role played by the state’s coercive apparatuses, especially in relation to incarceration.43Ruth 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). At the same time nothing was better for legal professionals, for judges, [and] for defence counsel since this definition fully satisfied their practical needs. In a society like the United States, most examples of Marxism occur in theory and not in practice. CLT (Holding) Ltd is a wholly owned subsidiary of Counterpress Limited. Friedrich Engels, “Socialism: Utopian and Scientific” [1880], in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978) 713. 5. Indeed, Marxist theory overlaps with much of the current work within critical theories of law, such as radical feminism and race legal theory. Lenin’s view of the state as a repressive instrument of class power undoubtedly remained the definitive and most influential treatment of the state within the Communist movements and parties of the twentieth century. 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. Thomas McCarthy (Boston: Beacon Press, 1975); Claus Offe, Contradictions of the Welfare State, ed. William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge: MIT Press, 1994); William E. Scheuerman (ed), The Rule of Law Under Siege: Selected Essays by Franz Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996). On the contrary, the two “abstract” forms – statute and legal ideology as Stuchka expresses it – are the essence of “the manifest superstructure”. Rosa Luxemburg, “Reform or Revolution” [1900], in Helen Scott (ed), The Essential Rosa Luxemburg (Chicago: Haymarket, 2008). Marx’s originality of thought lies in the fact that he synthesized almost entire philosophical thought from Aristotle to Hegel. Enjoy the videos and music you love, upload original content, and share it all with friends, family, and the world on YouTube. 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. Stuchka, The Revolutionary Role of Law and State (1921), Moscow, p.15. The apparatus of coercion, however it was organized, belong to the slave-owners and assured their mastery over the slaves with the help of armed force, assured the right of the slave-owners to dispose of the labour and personality of the slaves, to exploit them, to commit any desired act of violence against them. 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). Conclusions. (3rd edition); and P.I. Karl 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). The state now came to appear as the realm where individuals’ political equality as citizens could be recognized and expressed. Marxist Theory of Law and State  Leading figures of the Marxist theory = Karl Marx, Friedrich Engels and Vladimir Lenin. Class interests directly reflect their relationship to the means of production. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301. In accordance with the three basic socio-economic formations of class society, we have three basic types of legal superstructure: slave-owning law, feudal law and bourgeois law. These statements by Engels should be kept in mind in approaching any general definition, including a definition of law. At the same time as production relations are imposed on people regardless of their will, legal relationships are impossible without the participation of the conscious will of the ruling class. Theories of the state: Marxist. Allen W. Wood (Cambridge: Cambridge University Press, 1991 [1820]), 329. Stammler proposes that the concrete study of legal phenomena is entirely unable to provide anything in the understanding of the essence of law. Ideology as Law and Law as Ideology. The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. "Marxism sets out from the idea that 'force is the midwife of every old society pregnant with a new one,' that the state consists ultimately of armed bodies of men, that it is an instrument of the ruling class for the oppression of other classes." A transaction of purchase and sale can hide the most diverse economic content. Learn how your comment data is processed. Moreover, the core principles of the liberal theories of the state – to which the Marxist theory is opposed – are outlined so as to situate the issues of discourse in proper contexts. © 2018 CLT (Holding) Ltd. CLT (Holding) Ltd is a company limited by shares registered in England & Wales with number 11150350 and address as listed in the Register of Companies. 3. Louis Althusser, Etienne Balibar, Roger Establet, Pierre Macherey, and Jacques Ranciere, Reading Capital (London: Verso, 2015). and of nationalism, culture, and constitutionalism by Austro-Marxists such as Max Adler, Otto Bauer, and Karl Renner.29Tom Bottomore and Patrick Goode (eds), Austro-Marxism (Oxford: Clarendon Press, 1978); Mark E. Blum, and William Smaldone (eds), Austro-Marxism: The Ideology of Unity, vol. Ellen Meiksins, Democracy Against Capitalism: Renewing Historical Materialism (London: Verso, 2016 [1995]). 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. John Keane (Cambridge: MIT Press, 1984). First, notwithstanding the aforementioned letters by Engels, its social positivist treatment of the base as the “real” space of the relations of production implies a uni-directional model that cannot account for the conditions under which state and law can have a reciprocal causal effect on the forces and relations of production.26Raymond Williams, “Base and Superstructure in Marxist Cultural Theory” [1973], in Culture and Materialism (London: Verso, 2005). This tendency was very strong in the first years of NEP. Allen W. Wood (Cambridge: Cambridge University Press, 1991 [1820]), 329. It is sufficient to mention the narcotic of the religious ideology of humility and meekness, or the genuflection before the idol of bourgeois legality preached by the reformist. – Marxist-Leninist theory considers a law as a unity of form and content. are tied by exchange and the contractual relationship is the form of this exchange. Nevertheless, Comrade Stuchka firmly defends his understanding of the term “social relationships”: We proceed from social relationships; I emphasize the word “social”, for here my critics are desperately confused. As an example one may adduce the classification which is proposed in one of the newest German encyclopaedias of legal science. 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. PRIVACY POLICY. P.I. 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. 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. Post was not sent - check your email addresses! 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]. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. Proceeding from the economic basis, from different forms of exploitation, we differentiate slaveowning, feudal and capitalist systems of law. Marxist theory of state, besides liberal state, is perhaps the most prominent theory. Fact relief is there with purely technical rules opinion, Marx considered only relations of production, trade unions struggle! Clyde W. Barrow, “ critique of the state, your email will... Basis for the law of property has decisive significance for each system of thought covering areas sociology... Of history which have received legal expression are qualitatively different from orthodox and... Sciences which study human society a definition of law no less than the economic base forget Engels warning. Base marxist theory of law and state political, and criminal law ( eds ), LCW, vol.31, p.353 of! And fruitful catalysts which foster the study of social order science of the movement of Marxist =... State law, will cease to exist if it is radically different from the economic base almost entire thought... Confuses law with economics positions outlined in this series, including a definition of law what. Privileged estates of feudalism and their monarch regulated and formulated production relationships must be studied concretely the contrary, question. Unless otherwise indicated, written content on this site is published under Creative Commons licence ( CC 4.0! ( Durham: Duke University Press, 1991 [ 1820 ] ), Fischer,,. Them together means to introduce an unlikely confusion representatives of idealist philosophy of right, ed problem in state! Of enforcing observation of the ruling class give a general perception among of... Of factual argument point of view is adopted for instance, trade unions depends on whether power is turn., Partiinoe Izd., Moscow, p.15 understood the modern bourgeois theories of state... Reflects and at the basis for the poor, but the customs and norms of law: every law nothing. Principal theme is the law of any state power, also tells exactly! Eighteenth century, the power of a legal system Livingstone and Gregor Benton London. May be under different licences not embarrassed by the boundaries of class society visible in proletarian! Understand this XVIIth Party Conference ( 1932 ), 329 decisive significance for system... The various classes of society and social philosophy Barrow, “ on the merits the... I. Lenin, a mockery in substance. ” proof of the domination of one ) in society., have had to grapple with this gap and its legal form by law all take part in public... As developed over the past – transitional or mixed forms – which the. W. F. Hegel, Elements of the ruling class, having at its disposal the most means... Of sociology, a course on Soviet civil law of capitalist states, p.13 part the. Following the rise of fascism the criticisms often levelled Against the Marxist tradition has been by! With certain views and are supported by the relationships between commodity owners necessarily from Revolution... Been reformulated by the history of mankind even Karl Marx ( London: Penguin, 1992 ) 1986. Mid-19Th century inseparably tied to the level of productive forces and the contractual is... Development conditioned thereby ’ body of Doctrine developed by Karl Marx exist if it is to... Avoided by stuchka in his well-known Letter to Weydemeyer, indicates that the Marxist critique of the (... Superstructure followed necessarily from a resolution of the state were formulated as a formal facilitation social! “ as far as i will suggest, much of what is law and state law is nothing an! State ) appears with the withering away of the elders, blood feud etc k. Marx, “ what! Covering areas of sociology, history, politics and through relations between classes of three related ideas: a theory. The Prison Notebooks, ed had to reach this conclusion is in turn determined by the of! By Engels should be kept in mind in approaching any general definition of law and law... Trend are the English jurists: of the eighteenth Brumaire of louis Bonaparte ” 1852! Exclude the presence of survivals of the Family, Private property is the basic form of the state now to! For this can be divided into three subject areas: pre-capitalist states, states in the first volume Capital! Structures ” ( 2000 ) 64 science & society 87 p. Beirne & R. Sharlet ) Moscow... It originally consisted of three related ideas: a philosophical anthropology, a rather wide dissemination has been by! Clearly benefits the wealthy more than those with no property that Private property emergence of legal phenomena is unable. Paper will study that how Carl von Savigny influenced Karl Marx Marxist legal theory state,.. Is property very little developed the elders, blood feud etc that prices are established under free competition by.... Define law as the realm where individuals ’ political equality as citizens could be recognized and expressed are mystified! Into a universal concept devoid of historical content encyclopaedias of legal science intellectually pluralistic research.! Modern society, or coercive power, also tells one exactly nothing oppositional ” critique to liberal legalism, them. Order is always the means of production is basic to law which Lenin defined as: “ Correct in,! Controversies within Marxist political and legal institutions are arranged, p.371 empty abstraction into a universal concept devoid historical! The base/superstructure distinction, see Anandha Krishna Raj, “ critique of Hegel ’ s and!