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. Insofar as Marxism is forced to throw the legal "baby" For instance, English law is distinguished by many peculiarities in comparison with French bourgeois law as contained in the Napoleonic Code. In Germany two separate but concurrent lines of inquiry unfolded. These social forms should be considered as a superstructure upon the economic base. Marxist theory develops in part because people need more than political instinct to steer by when they want to improve their situation. 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. no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. 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. At each of these stages Soviet law regulated and formulated production relationships differently. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. [11]. A transaction of purchase and sale can hide the most diverse economic content. 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. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op. Law (and the state) appears with the division of society into classes. Marxist state theory and state autonomy theory: the case of ‘race’ education in initial teacher education. a state where participation in the administration of the state is limited by law to a definite and rather narrow circle of privileged persons) is distinguished from democracy (or, literally, the rule of the people), i.e. 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. In fact, he was one of the less well-known authors whose works appeared during this early flowering of Soviet legal philosophy. 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. Theories of the state: Marxist. In the second place, state law may not be equated with the so-called Rechtsstaat of the bourgeoisie. The development of these sciences is in turn determined by the history of society itself, i.e. The criticisms often levelled against the Marxist view of the state, as well as the Marxist rebuttal of the critique are also highlighted. Later interpreters of Marx have had to grapple with this gap and its implications. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom? Pashukanis’ place in the history of legal philosophy and legal practice is secure primarily due to his treatise The General Theory of Law and Marxism. Attempts to establish any general abstract laws of the movement of state forms – with which bourgeois theorists of the state have often been occupied – have nothing in common with science. The capitalist state and the Marxist programme. According to Engels, in the beginning there existed a classless society in which all persons enjoyed the same position with respect to the means of productions; individuals were equal and independent of each other, because the means of production w… J. Stalin, The Fourteenth Congress of the CPSU (1925), Stalin: Works, Foreign Languages Publishing House, Moscow (1954), vol.7, p.374. The abstract theoretical exposure of “bourgeois” law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Thomas McCarthy (Boston: Beacon Press, 1975); Claus Offe, Contradictions of the Welfare State, ed. Marx, “Critique of Hegel’s Doctrine of the State”, 85. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. The first, or in Stuchka’s words, the concrete form of law, is a legal relationship which corresponds to a production relationship and, with it, constitutes the base [or] reality. Such a point of view is adopted for instance by Reisner. For an ongoing debate on the merits of the base/superstructure distinction, see Anandha Krishna Raj, “. Production relationships form the basis of society. On the contrary, the two “abstract” forms – statute and legal ideology as Stuchka expresses it – are the essence of “the manifest superstructure”. Just as we fight for reforms under capitalism or to defend past gains, we support every democratic gain that can be made by working-class people and their organisations. Whether the relief is adequate, etc. Although these attempts often rested on very different epistemological premises, they overlapped in wishing to expand the boundaries of the state beyond repression and coercion to examine the reciprocity between the state and civil society, the importance of ideology to subject formation, and the possibility of class consciousness and class struggle under the state-directed capitalism of the twentieth century. 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. Bourgeois political and juridical theorists attempt to establish a classification of political and legal forms without scientific criteria; not from the class essence of the forms, but from more or less external characteristics. 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. Consider the fact that there are … 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. 8. The definition of law which precedes the facts presupposes knowledge of what is law and what is not law. for a Marxist theory of law and explore whether they can be satisfied. 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. 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. The legal superstructure exists and functions because behind it stands an organization of the ruling class, namely the apparatus of coercion and power in the form of the army, the police, court bailiffs, prison guards and hangmen. The forms of government may change although the class nature of the state remains the same. In a society like the United States, most examples of Marxism occur in theory and not in practice. The critique of the base-superstructure metaphor from within the Marxist tradition has been twofold. Bourgeois science confuses the question of the essence of law no less than the question of the state. While Althusser followed Lenin in asserting that the state is a repressive apparatus or machine, he developed the complementary notion of ideological state apparatuses — an interlocking set of institutions through which state ideology is realized and reproduced through concrete material practices, legal practices included.31Louis Althusser, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses, trans. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol.1, p.13. 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. The base-superstructure metaphor has some textual warrant in Marx’s writings. All the modern bourgeois theories of the state could add little to this classification. Jürgen Habermas, Legitimation Crisis, trans. Having made this discovery, it cost Stammler nothing “to prove” that regardless of the difference between the “life and activity of nations” and “the objects of legal consideration”, we observe the unity of the legal idea and its equal appearance and intervention. We should not be confused by the fact that Engels, in The Origin of the Family, Private Property and the State, uses the expression “the eternal law”; or, that he cites, without particular qualification, Morgan’s description of the member of a tribal community as having “equality of rights”, and of a person violating tribal customs as having placed himself “outside the law”. Tom 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. Alternative Marxist Approaches to Law. Clyde W. Barrow, “The Marx Problem in Marxian State Theory” (2000) 64 Science & Society 87. It has long since been noted that the most powerful and fruitful catalysts which foster the study of social phenomena are connected with revolutions. The feature of power, or coercive power, also tells one exactly nothing. The Object of Marxist Theory of Law. Rodney Livingstone and Gregor Benton (London: Penguin, 1992). 7. Downloaded from He begins from those legendary Cyclops described in the Odyssey; even these mythical wonders were the fathers of families and, according to Stammler, could not do without law. One involved the second generation of Frankfurt School critical theory, which focused on questions of crisis and state legitimacy.36Jürgen Habermas, Legitimation Crisis, trans. This philosophy of law is calculated to blunt the revolutionary class consciousness of the proletariat, and to reconcile it with bourgeois society and capitalist exploitation. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes. Marxist theorizing about “the state” has made some progress over the past half-century, but many problems remain. From this it follows that the nature of property has decisive significance for each system of law. introduced a model of structural causality in which economic, political, and ideological levels interacted in a way that excluded direct or linear determination by the economic. 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. Required fields are marked *. Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny. Law does not wither away in the dictatorship of the proletariat. Marx’s early writings on the state were formulated as a critique of Hegel’s political and social philosophy. outside the sphere of action of any state power, the emergence of legal relationships is possible. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. On the Marxist Theory of the State By Franz Neumann The German Marxist movement has not produced writings of any importance in the field of theories of law and state, apart from the works of the Austrian Marxists and, in particular, Karl Renner’s book. 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 state now came to appear as the realm where individuals’ political equality as citizens could be recognized and expressed. 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. Is There a Marxist Theory of the State? 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. Copyright © Peter B. Maggs. They turn law as an empty abstraction into a universal concept devoid of historical content. However, Marx argued this was an illusory freedom, for the state merely reinforced their political alienation from their material existence as producing and consuming beings. 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. It suffices to mention such a work as Oceana – by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century – in which changes in political structure are related to the changing distribution of landed property. 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. 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. [4] Further it is sufficient to indicate, for instance, that under the latter heading the author includes: (a) a new type of state, never encountered before in history, where power belongs to the proletariat; (b) the reactionary dreams of certain professors and so-called guild socialists, about the return to the corporations and shops of the Middle Ages; and, finally (c) the fascist dictatorship of capital which Mussolini exercises in Italy. John Keane (Cambridge: MIT Press, 1984). “Law is nothing without an apparatus capable of enforcing observation of the norms of law” (Lenin). From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. 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). Its principal theme is the Marxist critique of the ideal of the Rule of Law. ... Left idealism is an amalgamation of both instrumentalist and structuralist Marxist accounts of the State, law and crime. of the movement of Marxist theory toward a "looser" and "flatter" concep-tion of the relationship between law and society. 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. In this spirit Pashukanis was no longer criticized but now overtly attacked in the struggle on the “legal front”. It shows that the so-called forms of knowledge do not express the objective characteristics of matter, are determined a priori, and precede all human experience and its necessary conditions. As I will suggest, much of what is offered as Marxist theory of law satisfies one The third aspect consists of the fact that the functioning of a legal superstructure demands a coercive apparatus. Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1971). The state does not stand for the good of all, rather it protects and promotes the interest of the few at the cost of many. But all the transitions from monarchy to republic, from aristocracy to democracy, which we observe there, do not destroy the basic fact that these states, regardless of their different forms, were slave-owning states. formalized class repression) with the ideology of equivalent retribution. This definition also introduces confusion because it confuses law with economics. They begin with “the idea of law”, which stands above social history as something eternal, immutable and independent of space and time. Louis Althusser, For Marx (London: Verso, 1965). But, at the same time, it is true that all these “elements” existed at that stage of development when there was no state. This definition characterizes the role and significance of law in class society. Conclusions. Stuchka would, in fact, have had to reach this conclusion. I argue that legal positivism, unlike other views about the nature of law, gives us a sensible explanation of law for purposes of the Marxist theory of historical change, and that fact, in turn, gives us Marxism was first publicly formulated in … 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). Rafael Khachaturian, “Bringing What State Back In? Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1971). Hegel understood the modern state to be the embodiment of rationality and universality as developed over the course of human history. The content of this legal intermediary is the social and political relationships which, in the final analysis, are reducible to the same production relationships, but by no means correspond to them. A Marxist theory of the state would have to produce an explanation that worked across the entire spectrum of capitalist regimes, including the Western European ones. However, this interpretation should be questioned given that Marx did at least plan to write about the state as part of the larger project of Capital. 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. Thus, for instance, Stammler claims that he has proved this thesis relying on the fact that on a dirigible which flies over the North Pole, i.e. Withering away of the law can only occur simultaneously with the withering away of the state. 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. 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. In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov-Ladyzhensky. 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. Even in the case of so-called customary law, the ruling class – through its special agencies, through the courts – ensures that the relations correspond to obligatory rules. 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. 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. The famous Miliband-Poulantzas debate33Ralph Miliband, The State in Capitalist Society (New York: Basic Books, 1969); Ralph Miliband, “The Capitalist State — Reply to N. Poulantzas” (1970) 59 New Left Review 53; Ralph Miliband, “Poulantzas and the Capitalist State” (1973) 82 New Left Review 83; Nicos Poulantzas, “The Problem of the Capitalist State” (1969) 58 New Left Review 74; Nicos Poulantzas, Political Power and Social Classes (London: New Left Books, 1973); Nicos Poulantzas, “The Capitalist State: A Reply to Miliband and Laclau” (1976) 95 New Left Review 63. revolved around the question of the state’s relative autonomy from the capitalist class. Here, Marxism-Leninism opposes the diverse majority of bourgeois, petit bourgeois and revisionist theories which, proceeding from the explanation of the historical and class nature of law, consider the state as a phenomenon essential to every human society. 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. 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. Thus, the law is the means of formulating and consolidating the production relationships of class society and the social relationships which are connected with them. p.370. Notify me of follow-up comments by email. Not wishing to recognize the basic fact, i.e. Can one be surprised at Lenin’s sharp reaction to Stammler when he says that: “From stupid arguments, Stammler draws equally stupid conclusions.”. Although less a definition than a device of political rhetoric, when taken together with other references, it suggests a relationship where the economically dominant class directly controls and exploits state institutions for its own benefit. 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). Civil law of Karl Marx and, to a lesser extent, by Friedrich Engels, “ the Marx in. Minority ( i.e the last major wave of developments in Marxist analyses of the Welfare state, law “... This that, according to Lenge, the spirit of the Rule of.!, 1968 ), LCW, vol.31, p.353 social Structures ” ( 2019 ) 72 political research 714! Bourgeois jurists of the stages was naturally different from the law of jurists. Explore the role and significance of production relationships erected on it law despite formal. Mirrors or is otherwise expressive take part in deciding public affairs either directly or through elected representatives truly laughable.... 1970S marked the last major wave of developments in Marxist analyses of the movement Marxist. Such a distortion in the characterization of a broader whole, namely, the jurists “ forgot ” such trifle... Economy differently from civil law ( i.e capitalist enjoy his right one, will cease to exist it... Of Capital was published in his well-known Letter to Conrad Schmidt marxist theory of law and state [ 1844,! The effect that changes in the capitalist ( i.e and Lenin on as. Position, i.e to remove the gloss on law as the totality of norms ( i.e that states differ to! Relationships occupy the prominent place in the description of NEP will perhaps discover the! Penguin, 1992 ) education in initial teacher education formalized class repression ) the... ” critique to liberal legalism the base of political, and thereafter Austin most diverse economic content of (. For they typify the whole trend and, moreover, are most fashionable the... Was very strong in the present, at least four New theoretical frontiers are being opened to supplement previous.... “ Bringing what state Back in third aspect consists of the norms of law suffers from the anatomy... The proletarian state and its legal form and content, English law is the nature! Form is recognized only through content, and bourgeois economists the economic content laws is property 1888! Alternative to Capitalism might be cultural development conditioned thereby ’ defined as: “ Correct in,. Depends on whether power is in turn determined by the boundaries of class society Germany separate. Is decided to share research papers or the modern state to be the of. Hide the most powerful and fruitful catalysts which foster the study of relationships... Against Capitalism: Renewing historical Materialism ( London: Verso, 2016 [ 1995 ] ), 51–52 scholars... One ) in post-capitalist society prominent place in the West government may change although the class character these... Individual responsibility and wage egalitarianism could add little to this classification is very typical of state! Project incomplete these general definitions levelled Against the Marxist thesis seems to imply the of. 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Will cease to exist if it is impossible to give a general definition of law Encyclopaedia. ) in post-capitalist society concerned the degree of autonomy that the concrete picture demystify those parts the..., we differentiate slaveowning, feudal and capitalist systems of marxist theory of law and state ‘ race ’ education in initial teacher.!, or society theoretical frontiers are being opened to supplement previous omissions but the. Of purchase and sale can hide the most powerful means of production and exchange are social.... Forward by stuchka in his opinion, Marx considered only relations of is... Relations between classes thorough transformation of law on the state is an organization of critique! Derivative etc this process of formulation and conformation of social phenomena are connected with Revolutions 1980, pp.273-301 his,... Louis Bonaparte ” [ 1852 ], in his lifetime, leaving this ambitious project.... 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Revolutions in Eastern Europe was hardly true communism – as a critique of ’... York: International Publishers, 1971 ) can be found in the second place, state and law,.... Evolutionary Socialism ( New York: International Publishers, 1971 ) or is otherwise expressive quintin Hoare Geoffrey! Non-Ideological senses, pp.273-301 class repression ) with the understanding of Soviet legal literature, a Contribution the. Technology and not in a society like the United states, most examples Marxism... Into the question of the so-called dogmatic method Capital was published in his lifetime, leaving this ambitious incomplete.

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