Marxist Theories of Law and Sta
Transcription
Marxist Theories of Law and Sta
MARXIST THEORIES OF LAW AND STATE MARXISM l is a system of sociology, a philosophy of man and society and a political doctrine. It is unique in that no other body of social thought has become the doctrine of an important political movement and ultimately the orthodoxy of ruling parties in much of the world. In this chapter Marx's own thought and later developments in Marxist tf~oughtand action are surveyed. Marxism is both part of the ideology of the Soviet Union and many other countries in Eastern Europe, Latin America and Africa and a critical standard employed by many intellectuals throughout the world by which to measure existing institutions as well as a lodestar of revolutionary change. No intellectual discipline has remained immune from it.3 It is Marx's lasting contribution to social thought that he viewed human societies as systems: but more controversial is his view of ?the inter-relationship of the parts of those systems. He attached primacy to the economic system. This was the "base" or "infrastructure " and everything else, political institutions, laws, religion, ethics, was " superstruct"ura1." His theory of law and state might be described crudely as an economic theory of law and state.6 Secondly, and this is why Marxist thought has proved so attractive to critics of social systems and revolutionaries, he saw societies as inherently unstable systems. Furthermore, he On which see Avineri, The Social and Political Thought o f Karl Marx (1968), McLellan, Karl Marx-His Life and Thought (1973), Bottomore, The Sociological Theory o f Marx (1973), Lichtheim, Marxism (1961), Plameniutz, German Marxism and Russian Communism (1954). Texts will be found in editions by Lawrence and Wishart and Penguin. Useful collections are McLellan, The Thought o f Marx (1971), Bottomore and Rubel, Mcarx-Selected Writings in Sociology and Social Philosophy (1956), Feuer, Marx and Engels-Basic Writings on Politics and Philosophy (1960). 2 On law and ideology in the Soviet Union see Rudden (1978), Current Legal Problems, p. 189. 3 Two examples are the plays of Berthold Brecht and the literary criticism of Antonio Gramsci. 4 C f . the approach, using very different premises, of Parsons, referred to ante, 366. 5 Post, 729. a There are non-Marxist economic theories of law as well. Indeed. they were quite common in Germany and Italy in the 1890s and subsequdntly -in the U.S.A. The writings of Bohlen and Wigmore are good examples of this. There is something of a resurgence in this today. See Calabresi's The Cost o f Accidents (1970) and Posner's influential Economic Analysis o f Law (1972). The Journal o f Legal Studies (1972- ) contains much of interest in this area. 1 Marxist Theories of Law and State 725 sought the cause of social change in the internal contradictions and conflicts in social systems. Marx was a materialist. Materialistic views of the world were common in the eighteenth century, being espoused by such thinkers as Descartes, Diderot, Holbach and Feuerbach. But, according t6 Marx, they conceived of the world and man in purely mechanical terms, which allowed no scope for an explanation of devdopment. If the world were a machine it could only do what it was made to do and not develop any new q ~ a l i t y . ~Marx found the principle of development he was looking for in Hegelian dialectics. DIALECTICS, HEGELAND MARX For Hegel history was a process in which the Absolute progressively unfolded itself, revealing more of its true nature in later periods than in earlier. The dialectic was the clue to this development. From the Greek (meaning argument or debate), the dialectic is the theory of union of opposites. The idea is to be found in Plato who regarded contradictions as obstacles to arriving at the truth and used the dialectic to rid himself of them. To Hegel, however, " the power of the negative," as he called it, was at the root of everything. There was always a tension between any present state of affairs and what it was becoming. But it was only through this tension that any progress towards truth was possible. For Marx, Hegel's chief attraction lay in his " philosophy's apparent ability to become the key to the realisation of idealism in reality, thus eliminating the dichotomy Kant bequeathed to the German philosophical tradition." The attraction of the dialectic for Marxists lies in its showing that phenomena do not exist in isolation and must be studied in their movement and development, and in depicting society as full of contradi~tions.'~ So they can draw the conclusion from the former that capitalism is a transient phase of human development and from the latter develop such concepts as alienation." 7 8 9 '0 11 Marx's critique of existing materialism is to be found in his Concerning Feuerbach (see Early Writings (Penguin ed., 1975), pp. 421-423). And see ante, 631. Hegel substituted for the familiar idealist notion of a higher reality beyond the actual world, the doctrine of a higher reality in the shape of what a thing is capable of becoming when it has realised its full potentialities. This has some resemblance to Aristotle, c f . ante, 82. Per Avineri, Social and Political Thought o f Marx (1968), pp. 8-9. C f . ante, 281. For Hegel, the law of contradiction produced, in the form of thesis and antethesis, a solution by way of synthesis on a higher level. This he applied to opposing forces in nature or society. Marx seized on this approach towards history and society, particularly with reference to the so called " class-conflict." Alienation arises as a result of something and is always from something. Thus, for Marxists, in capitalism man is alienated from the products of his activity since these belong to the capitalist; he is also alienated from his productive activity itself; he is also alienated from his essential nature and from other men. 726 Marxist Theories o f Law and State Marx's dialectic was different from Hegel's. Marx rejected Hegel's idealist philosophy and substituted materialism. A combination of Hegel's dialectic and a materialist theory of knowledge produced dialectical materialism, and this, applied to human relations within society, particularly to their evolution and develop ment , Marx called historical materialism. l2 Marx explained his dialectical method in an Afterword he wrote in 1873 to the second edition of Volume 1 of his Capital. It was, he claimed, " not only different from the Hegelian, but its direct opposite. To Hegel the life process of the human brain, i.e., the process of thinking, which, under the name of ' the idea,' he even transforms into an independent subject, is the demiurgos of the real world, and the real world is only the external, phenomenal form of ' the idea.' With me, on the contrary, the ideal is nothing else than the material world reflected by the human mind and translated into forms of thought. . . . With Hegel [the dialectic] is standing on its head. It must be turned right side up again if you would discover the rational kernel within the mystical shell." l3 Nevertheless, Marx " respected Hegel as a great thinker and considered his dialectic a valuable instrument for investigating the world." l4 MARXAND HEGEL'SPOLITICAL PHILOSOPHY Marx believed that Hegel's political philosophy " set the seal of approval upon a reality basically defective and distorted." l5 SO, Hegelian philosophy could not be reformed without reforming reality itself. " The philosophers have only interpreted the world," wrote Marx in commenting upon the eleventh thesis on Feuerbach, " the point is to change it." l6 Hegel depicted civil society as the clash of social forces, to be transcended by the universality of the stat.k.lT The state was abstracted from those forces, social and historical, which created and conditioned it. Marx asserts by contrast that the separation of civil society and state which Hegel formulated as a matter of 12 13 14 15 16 17 Post, 728. Marx never in fact used the expression. He referred to the " materialist conception of history " (McLellan, Marx (1975), p. 38). Quoted from Feuer, op. cit., pp. 186-187. Per McLellan, Karl Mar-Life and Thought (1973), p. 124. "The way forward for Marx lay in an application to the ' real' world of the principles that Hegel had discovered " (per McLellan, Marx (1975). p. 26). Per Avineri, o p . cit., p. 16. In Early Writings (Penguin ed.), p. 423. See Avineri, Hegel's Theory of the Modern State (1972), pp. 141-154, and c f . , ante, 631. Hegel's definition of civil society follows the classical economists' model of the free market. Hegel was acquainted with the writings of Adam Smith. Marx and Hegel's Political Philosophy 727 principle is in fact only a historical phenomenon, the causes of which can be analysed. It is furthermore necessarily ephemeral. For Marx, Hegd's discussion of the state "ignores the social context of human relationship at the same time as it rationalises existing social organisation." l 8 The state is discussed without reference to the individuals whose roles it directs. Hegel's mediation of the two by means of political representation was, Marx believed, misconceived. The delegates of civil society in a representative assembly enjoy their status because they are members of a political organisation and not because they legitimise the particular interests of civil society. " Political institutions, despite their claim to universality and generality, only mask the particularistic, egoistic interests of civil society." I9 c c The anatomy of this civil society," Marx wrote in his Contribution to the Critique of Political Economy, " has to be sought in political economy." 20 These prolalems are also to be found in Hegel's treatment of b u r e a ~ c r a c y . ~To ~ Hegel, the bureaucracy was the " universal class," 22 a paradigm of mediation between civil society and the state. Marx saw this as illusory: the bureaucracy merely used the name of the general interest to further its own. It was an " institutional licence for sectional interests." 23 For Hegd a person's private position determined his political status. For Marx this status was determined by his property relations and " class differences of civil society become political! differences." 24 The state's claim to appear as the general interest was therefore nothing more than a mask for class interests. Those who lack property and need work (" the class of concrete labour ") was "less a class of civil society than the basis on which the spheres of civil society rest and move." 2 6 Civil society could not function without the labouring classes, though these had hitherto been conceived of as marginal to it. Hegel's mistake, so Marx believed, was to ignore the human subject. It was only natural, Avineri comments, that "the modern state should be reduced accordingly to the private individual isolated from his social context."26 It was " the riddle of modern constitutions (Marx tells us) as well as of Hegel's philosophy, especially his Per Avineri, Social and Political Thought of Marx, p. 17. Idem, p. 19. 20 Post, 765. 2 1 On which see Avineri, Hegel's Theory o f the ~ o d e r n State, pp. 155-161. 2 2 Philosophy of Right, p. 205. 23 Per Avineri, Social and Political Thought o f Marx, p. 23. 24 Ecrrly Writings (Penguin ed., pp. 141-142. (Critique o f Hegel's Doctrine of the State). 2 5 Quoted by Avineri, in Social and Political Thought o f Marx, p. 26. 26 Zdem. 18 19 Marxist Theories o f Law and State philosophy of law and religion" to tYeat man not as a subject but to identify him with his " predicate, class." 27 It was vital to Marxian philosophy to unveil this seeming mystification. THE MATERIALIST CONCEPTION OF HISTORY The basic premise underlying the Marxian conception of history is that the " nature of individuals depends on the material conditions determining their production." What individuals are " coincides with their production, both with what they produce and with how they produce." 28 TO understand man and his history, therefore, it is necessary to understand his productive activity. " Self-creation through labour " is the " primary factor in history and ideas and concepts-political, philosophical or religious-through which men interpret this activity [are] secondary." '' Marx sees the principle governing all human relations to be found in the common end that all men pursue, viz., production of means to support life and exchange of things produced. There are two factors in production: " productive forces," the instruments of production including labour and implements and the "productive relations" between men.30 The two are related so that as one changes so does the other. Marx gives us what he regards as, " a scientific account of social change." 31 Like other contemporaries he made sweeping historical generalisation^.^^ He traced productive relations through a number of stages. In the " beginning " these were cooperative. Social revolutions take place as new inventions result in the newly-discovered productive forces coming into conflict with existing relations of production. " In acquiring new productive forces men change their mode of production; and in changing their mode of production they change all their social relations. The hand-mill gives you society with a feudal lord: the steammill, society with the indust'rial capitalist." 33 Marx sees " the Asiatic, the ancient, the feudal and the modern bourgeois methods of production as so many epochs in the progress of the economic formation of society." 3<i~tory is conceptualised as a history Quoted idem, p. 27. Marx and Engels, The German Ideology, p. 31. McLellan, Marx (1975), p. 38. 3 0 Materialism "epitomised and under-scored the significance for historical and social explanation of generalisations about causality " (McBride, The Philosophy o f Marx (1977), p. 80). 31 Per Bottomore and Rubel, Km1 Marx (Pelican ed., 1963), p. 36. 32 See Lichtheim, Marxism (1964) p. 141. C f . Maine, ante, 636. 33 Marx, The Poverty o f Philosophy, p. 122. 34 Marx, Critique o f Political Economy, post, 766. " All these states have one fundamental feature in common: they are all 'class states"' (Miliband, Marxism and Politics (1977), p. 74). 27 28 29 The Materialist Conception of History of class struggles. The particular structure of the classes at any given time is determined by the mode of production. It is the contradictions within the system, which furthermore cannot be resolved within its framework, that lead to higher stages of development. He saw the contradictions within capitalism leading to increasingly acute conflict which only a revolution could resolve. Thus, and here Marx assumed the prophetic role, would the working class acquire political hegemony and found first a socialist, then a classless communist, society. Only then did he bdieve man's essence would be realised. The attraction of Marxist thought to the exploited and oppressed is self-evident. MARX AND ECONOMIC DETERMINISM Marx distinguished between the economic structure of society (the " base " or " infrastructure ") and the legal and political " superstructure " which rose upon this " real foundation." In 1859 Marx wrote that " the mode of production of material life conditions the social, political and intellectual life process in general. It is not the consciousness of men that determines their being, but, on the contrary, their social being that determines their consci~usness."~~ From this statement it would seem that the law, for example, is determined or conditioned by economic factors and would be subsidiary to them, indeed derivative from them. It would be robbed of any autonomy and therefore, for example, of any social engineering 3 6 potential. The view that law follows, and never leads, is, of course, a common nineteenth-century view. Savigny with his emphasis on the Volksgeist " and Sumner (in the early years of this century) with such epigrams as " stateways cannot change folkways " " certainly believed that law could not produce social change. A common criticism of Marx concentrates on his crude concept of causality. His determinism appears mechanistic and rigid. The very separation of base and superstructure can also be criticised. Can the economic organisation of society be undersrood without an understanding of elements, notably law, which belong to the superstructure? Can the organisation of capitalism in Britain today be separated from the rules and obligations to be found in companies legislation? 38 Engels sought to argue that Marx had 35 36 37 38 39 Post, 766. Cf. ante, 356. Ante, 632. Folkways (1906). Cf. Plamenatz, Man and Society (1963), Vol. 11, p. 274. 730 Marxist Theories of Law and State never intended to suggest that " the economic element is the only determining one," which he described as a " meaningless, abstract, senseless phrase." 40 Indeed, in Capital Marx seems to support this by asserting that the "same economic basis" will show "infinite variations and gradations in appearance which can be ascertained only by analysis of the empirically given circumstances " (he lists " natural environment, racial relations, external historical influences") and he concedes that the "variations" include the political (and presumably legal) part of the superMarx did, however, insist on the overwhelming primacy of the economic base. A watered-down version is that it is " apposite and meaningful to treat the ' economic base' as a starting-point, as a matter of the first instance," and that we can still " attribute to political forms and forces whatever degree of autonomy is judged in any particular case to be appropriate." 42 This could pedhaps be applied to legal forms and forces as well. Marx would not, it is thought, have attributed such purely regulatory legislation as that concerned with road traflic to considerations of the economic organisation of society. But the main Marxian thrust remains that economics is the real determinant of the social order. QUESTION OF CLASS Marx saw history as the histbry of class struggles. But he neither invented the concept " class" 43 nor does he offer much in the way of systematic analysis of it.44 In Capital 45 he writes that there are three large classes in capitalist society, wage labourers, capitalists and landowners. But he qualifies this by adding that in England (where capitalism had then reached its most developed form) stratification does not appear in pure form; there were THE 40 41 42 43 44 45 Letter to J. Bloch, September 21, 1890. In a letter to Sparkenburg in 1894 he argued that there was a causal interaction between economic base and suwrstructure. " It is not that the economic position is the cause and alone active, while everything else has a passive effect. There is, rather, interaction on the basis of the economic necessity which ultimately always asserts itself." This is of great importance in the Soviet Union where the creation of Socialist society through legal machinery is stressed. See Kechekyan (1956) 6 Transactions o f Third World Congress on Sociology and Berman's discussion of " parental law," post, 797. Capital, Vol. 111, p. 772. Miliband, Marxism and Politics (1977), p. 8. "NO credit is due to me for discovering the existence of classes in modern society nor yet the struggle between them," wrote Marx in 1852 (quoted by Bottomore and Rubel, op. cit., n. 1, p. 19). Early formulations are those of Ferguson and Millar, eighteenth-century Scottish historians. McLellan, The Thought o f Marx (1971), p. 151. capital, Vol. 111, p. 832. The Question of Class 731 "middle and intermediate strata." He saw a process, however, whereby these and landowners would be squeezed out and two classes would remain: bourgeoisie and proletariat. In The Communist Manifesto these are " two great: hostile camps." 46 Marx's position is complicated by his recognition of the advent of a new middle class and his characterisation of a group like farm labourers to an intermediate position between peasants and proletariat. Indeed, he viewed peasants as a reactionary group 47 and was reluctant to identify them with the urban proletariat upon which he pinned his faith. The intelligentsia 48 also caused Marx problems. So did what he called the Lumpenproletariat, the dropouts of society. Though very different: Marx saw the potential for each to be reactionary, selling its services to the bourgeoisie. Marx's position on class is thus neither clear nor simple. He was, of course, not describing a static society and his view was that, despite variations that then existed, the capitalists and the proletariat were essentially the only classes in developed capitalist society. Marx also stressed that a class did not really exist until it became conscious of itself as such. Thus he said of the proletariat that it was " not yet sufficiently developed to constitute itself into a class " and that it was not yet " a class for itself." 49 It is often said by way of criticism of Marx that he overemphasised tQe significance of economic class both as an explanation of historical trends and as an indicator of individual conduct.50 Certainly, there would appear to be other possible dimensions of stratification. In a male dominated society women may be treated as inferior. In a racist society discrimination may be practised against people of a different racial origin. It can hardly be contested that the oppression of women associated with male supremacy ~~ in " socialist" countries and that antedates c a p i t a l i ~ m ,persists such patterns of dominance are to be found outside the nuclear family in communal living.52 The Marxist, however, strives to interpret both sex discrimination 53 and racialism in Britain and other 46 47 48 49 $0 51 $2 53 In Feuer (ed.), op. cit., p. 49. Cf. J. Berger, New Society, December 1977. The German Ideology, D. 21. They made " the perfecting of the illusion of the class about itself their chief source of livelihood." The Poverty of Philosophy, pp. 140, 195. Similarly with revolutionary consciousness, Marx argued that its existence guaranteed that a revolution was bound to happen. See Avineri, The Social and Political Thought o f Marx (1968), p. 144. Dahrendorf, Class and Class Conflict in our Industrial Society (1959). Delmar in Mitchell and Oakley (eds.), The Rights and Wrongs o f Women (1976), p. 271. Abrams and McCulloch, Communes, Sociology and Society (1976), Chap. 5 . See J. Mitchell, Women's Estate (1971). 732 Marxist Theories of Law and State Western European countries in terms of the ideological needs of European colonialism. He sees race prejudice as serving the interests of capitalist exploitation. Thus the sole purpose of the 1968 Race Relations Act has been somewhat grotesquely described as "education of the lesser capitalists in the ways of enlightened capital " for " now that immigration laws were turning immigrants intb migrants . . . it was necessary to count the social and political cost of racial friction." Some of Marx's views on the state have already been referred to.66 His early ideas evolved by way of criticism of Hegel. Essentially his aim in these writings was to stress the gap that existed between civil society and the state. The state was viewed as the " most characteristic institution of man's alienated condition." " The state was merely a political abstraction. In his later writings he concentrated more on an analysis of the function of the state in society. Indeed, " whereas in his earlier writings he had tended to emphasise the gap between the state and society, he later considered the state as part of society." 5 9 e state was then seen as an instrument of class oppression ("The executive of the modern state is but a committee for managing the common affairs of the whole bourgeoisie," he These two views are noted in The Communist Manifesto "g). different but, as McLellan emphasises, they are by no means incompatible. Marx traced the origin of the state, as he did other social institutions, to the division of labour. He saw the state as in contradiction to the real interests of all members of society. It was an " illusory community serving as a screen for the real struggles waged by classes against each other." 6 0 At each stage of production in history there was a palitical organisation which corresponded to that stage and which supported the interests of the then dominant class. " The state," Marx wrote, " acts as an intermediary in the formation of a11 communaI institutions and gives them a political form. 54 55 56 57 58 60 A reference to the Immigration Act 1971. Sivanandan, " Race, Class and the State" (1976) 17 Race and Class, 347, 362. Some of Marx's own remarks on race appear to have been conveniently forgotten today. He appears to have indicated a belief in the relative inferiority of the Negro race and in intrinsic racial differences in ability. Furthermore he wrote in 1853 of the necessity for " races, too weak to master the new conditions of life [to] give way " (quoted by Feuer, op. cit., p. 25). He was also, on many occasions, scathingly anti-semitic (though himself a Jew). Ante, 726 et seq. On the materialist view of the State see Holloway and Picciotto, State and Capital (1978), Chap. 1 . McLellan, The Thought of Karl Marx (1971), p. 179. Zdem, p. 181. 59 Penguin ed., 1975, p. 82. Per McLellan, The Thought o f Karl Marx (1971), p. 182. The State and Law 733 Hence there is the illusion that law is based on will, that is, on will divorced from its real basis, on free will." Sometimes, Marx notes, the state may be representative not of the whole of a class but only of a section of that class. He cites the example of the financiers under Louis-Philippe. One class can also control the state for the benefit of another class. Marx saw this as the case in England when the Whigs did this on behalf of the middle class. Marx also thought that the state could play an independent r d e in backward countries and in absolute monarchies in the transition between feudal and bourgeois classes. Marx also doubted whether the state was necessarily an instrument of class domination in certain Asiatic, paternalistic societies (India, China and Russia) where " the despot . . . appears as the father of all the numerous lesser communities, thus revealing the common unity of all." But generally Marx saw the state funcdoning simply as an instrument of class oppression, as in North America, "where the state . . . was from the start subordinated to bourgeois society and productfon." 62 Marx's views on law are not set out separately in any treatise and must be ~ i e c e dtogether from his writin~s.'~ There is no definition oflaw as such in Marx. and Engals concentrate --- Both he --their attention rather on how -law is created. Thev are interested -- - ---inideology and law as manifestation of this. ~ i Marx t cannot fail to be interested in law for capitalist society is characterised by private property and this is nothing more than a bundle of legal rights relating to the use and disposition of things. Capital in such a society is private property. This, Marx tells us, enables its owner to buy the labour of another and use it to create surplus value. The worker is exploited for he does not receive the full value of the labour power he expends. For Marx one of the --main law is-to obscure power -functions - - - -- -of -relationships. Thus,- -the . .-leg_al form will refer to the right to enter freely contracts but in- the absence of equality of bargaining ----- -into --- - - -.- - - . - -- - - -power this freedom is illusory. The legal form i s an idedogical cloak. The law, of course, may pretend to neutrality. Phrases such as " equality before the law" are common. But, says Engels: " the power given to one party by its different class position, the pressure it exercises on the other-the real economic position of both-all this is no concern of the law. . . . That the concrete economic situation compels the worker t'o forego even the slightest U U a p - p p - 61 62 63 Grundrisse, p. 48. Pre-Capitalist Economic Formations, p. 69. An interesting attempt to do this is Cain (1974) 1 Br.J. of Law and Soc. 136. 734 Marxist Theories of Law and State semblance of equal rights-this again is something the law cannot help."64 The law, we are told, thus serves to legitimate and mystify.85 THE " WITHERING AWAY" OF THE STATE To Marx the state and law were temporary phenomena. Revolution was inevitable and this would be bound to break the power of the state. With the abolition of classes the power of the state would disappear and governmental functions be transformed into simple administrative ones. The typical manifestations of the state including bureaucracy and a judiciary would disappear. Engels referred to the state "withering away."96 Marx himself always referred to its " abdition " ( A u f h e b ~ n g ) .Running ~~ through all Marx's writings is a connection between universal suffrage and abolition of the state.68 Thus in The Communist Manifesto proletarian rule is linked to the attainment of universal suffrage: " the first step in the revolution of the working class is to raise the proletariat to the position of ruling class, to win the battle of democracy." 69 According to Avineri, " dialectically, the state that would really carry out its universal potential must end with communism and consequently with its own abolition, since ' public power will lose its political character.' The ultimate realisation of the Hegelian idea of the state as universal power implies, according to Marx, that once the state is truly universal, it ceases to exist as a differential organism." Marx's conception of the future role of the " state" is to be found principally in his comments on the Paris Commune and his Critique of the Gotha Programme. Marx approved of the Commune's proposals to have all officials including judges eIected by universal suffrage,?' and paid the same wages as workmen. " Instead of deciding once every three or six years which member of the ruling class was to misrepresent the people in parliament, Quoted, idem, p. 142. Does this take Into account sufficiently consumer protection legislation (as well as the activity of courts in this regard) in capitalist society, as well as laws aimed at the protection of workers and giving increased power to trade unions? e6 See post, 773. On recent Marxist theories of the State see Jessop, 1 Cambridge J. of Econ. 353 (1 977). 6 7 Avineri, The Social and Political Thoughr of Karl Marx (1968), noted the two different terms derive from different intellectual traditions. Engels's Absterben is a " biological simile." Marx's Aufhebung is " a philosophical term with clear dialectical overtones" ; (p. 203). 6s This is found as early as his critique of Hegel's Philosophy o f Right. 6 9 O p . cit., n. 59, p. 102. 7 0 Op. cit., n. 67, p. 207. 7 1 His approval of the fact that delegates were bound by formal instructions of constituents and were recallable is reminiscent of the ideas of Rousseau. Sec Colletti, From Rousseau to Lenin (1972). Pt. 111. I34 6s The " Withering Away " of the State 735 universal suffrage was to serve the people constituted in Communes, as individual suffrage serves every other employer in search for the workmen and managers of his business." 7 2 Marx also noted approvingly that the Commune was the first revolution in which the working class was openly acknowledged as the only class capable of " social initiative " by the bulk of the Parisian middle class. The Commune's failure also taught Marx that workers' movements would have to develop politically if a subsequent uprising was to be successful. The seeds of Marx's concept of the dictatorship of the proletariat: are to be found here. In the Gotha critique 7 4 Marx points to " a period of revolutionary transformation " between capitalist: and communist society. In this period "the state can be nothing but the revolutionary dictatorship of the proletariat." 7 W c L e l l a n points out that the word " dictatorship " did not: have the same connotation for Marx as it does today. He associated it principally with the Roman office of " dictatura," where all power was legally concentrated in the hands of a single man during a limited period in a time of crisis.76 The Gotha programme contained, according to Marx, It called for nothing but the " old familiar democratic litany." state-aided workers' co-operatives rather than the revolutionary transformation of society. Even with the abolition of the division of labour and consequent disappearance of the state, communist society in its first stage would still be stamped " in every respect, economically, morally and intellectually with the birthmarks of the old society from whose womb it emerges." " Right can never be higher than the economic structure of society and its cultural development conditioned thereby." l g Only after some considerable time would full communism be achieved, " the narrow right of bourgeois right to be crossed in its entirety." Then society could " inscribe on the banners: from each according to his ability, to each according to his needs." Marx foretold t ' a t revolution wodd come as the result of a The Civil War in France, p. 211. Though The Communist Mavzffesfo,nearly a quarter of a century earlier, contains similar ideas. The Gotha programme of 1875 was an attempt to accommodate revolutionary politics to the Prussian state and Bismarck's policy of uniting Germany under Prussian hegemony. 7.5 " Critique of Gotha Programme " in Selected Works, Vol. 11, p. 30. 7 6 The Thought of Marx (1971), pp. 202-203. 7 7 U p . cit., n. 75, at p. 30. 7 8 Idem, p. 24. 7 9 Idem. so Idem. 81 Idem. On the problems this is causing jurists in East Germany see Markovits, 45 U. of Chic. L.R. 612, 632 (1978). 72 73 736 Marxist Theories of Law and State severe economic His materialist view of history would seem to indicate that the most advanced industrial countries should experience revolution first. Yet he thought that in these (he cited the United States, England and the Netherlands) communism could come about by peaceful means.83 But in the year before his death he hinted that Russia might prove the starting-point of the r e v a l ~ t i o n . ~He ~ thought the Russian system of community development of land could serve as the starting-point for communist de~elopment.~"~ early as The Communist Manifesto he had set out a programme to be implemented by the dictatorship of the proletariat upon its take-over.86 It is a fairly modest list of proposals and does not: include nationalisation of industry as such. The feature of communism which Lenin propagated most powerfully was the role of the Party. Marx frequently asserted the need of the working class to organise itself, but he was not particularly interested in the form which the organisation might take. Lenin developed these ideas. Central to his philosophy was the belief that, if revolution were to succeed, there must be organisation and direction. He accordingly placed considerable emphasis on the part which the Communist: Party would play. The workers could not be expected to attain revolutionary consciousness when their material conditions were such (long working hours, bad conditions, prohibitions against organisings7) that they could not be expected to understand the objective reality of the society in which they were living.88 Thought had to be left to an Clite. The problem with this view is that, given that the Party was destined to be the mechanism for advancing social progress towards a revdution, there was little necessity for it to take a back seat after the successful seizure of political power from the bourgeoisie. So, during the transitional period of the dictatorship of the proletariat it followed that the Party would play the decisive role.89 Selected Worlcr (1850), Vol. I, p. 231. In his later writings Marx conceived of the possibility of a successful revolution in countries where the majority of the population were peasants. 8s Quoted in McLellan, op. cif., n. 76, p. 201. 84 Selected Works, Vol. I, p. 24. (Preface to 2nd Russian edition of The Manifesto of the Communist Party, 1882.) 85 Discussed in Berman, Justice in the U.S.S.R. (1963). 8 6 Set out post, 769. 8 7 Hardly the characteristics of present-day capitalism or of the " mixed economy." 88 C f . McBride, The Philosophy of Marx (1977), p. 148. 89 On the relationship of class and party and Lenin's views to those of his contgmporaries and successors, see Miliband, Marxism and Politics (1977), Chap. V. 82 The Contribution of Lenin Engels had referred to the state " withering away." Lenin qualified this. It was not the bourgeois state which would wither away but the dictatorship of the proletariat which would disappear in this way. The bourgeois state, Lenin asserted, would be destroyed by the revol~tion.~'The essential point of the revolution was "the destruction of the bourgeois state as a power separate from and counterposed to the masses, and its replacement by a power of a new type." g 2 In Lenin's view the bourgeois state machine had to be destroyed because it depended on the separation and alienation of power from the masses. He saw the destruction of the old machine as the destruction of the limits imposed on democracy by the bourgeois state. Much of State and Revolution is a palemic against K a u t ~ k y . ~Kautsky ~ (who was also a Marxist) advocated the seizure of power but not the destruction of the state: he believed the existing machine could be used for socialist ends. Lenin by contrast saw the revolution as " not only the Wansfer of power from one class to another " but " also the passage from one type of power to another." 94 This clash of opinions has been a constant theme in twentieth-century thought on revolution and the class struggle. The views of Kautsky are found reflected in some movements of social democracy: those of Lenin in those societies ruled by the decrees of the dictatorship of the pr~letariat.'~ As the word " dictatorship " emphasises, Lenin was a believer in coercion, indeed in violence.95a Unlike the more Utopian Marx, Lenin did not believe that there would be an immediate change in people's attitudes and behaviour with the revolution. He stressed the continuing need for what he called " factory discipline." This would be necessary until new ways of conduct were internalised by the population. Marx saw a future society in which coercion and restraint were absent: Lenin adopted a tougher and more realistic approach, by concentrating on the immediate future, with little commitment to a society where force was unnecessary. Communist society might be left to work towards this end through the indoctrination of its members in communist " morality." Further, whereas Marx (subject to what already has been said) believed that in the last analysis economics determined politics, Lenin saw this as a fetter on the achievement on Communism. His view was that 91 Post, 775. Ante, 734, post, 773.. Per L. Colletti, From Rousseau to Lenin (1972). 9 3 One of the leaders of German Social Democracy. In his earlier writings (for example, What's T o Be Done? (1902)) Lenin quoted Kautsky with great respect. 94 U p . cit., n. 92. 95 Though these sometimes claim a state of the "whole people." Such statements were common under Khrushchev. 958 " The dictatorship. . rests upon force and not upon law," per Lenin, quoted in Lapenna, 1 Rev.Soc. Law 73, 74 (1975). 90 g2 . 738 Marxist Theories of Law and State political power itself might succeed in determining politics. The differences between Marx and Lenin on such important questions of ideology are sufficient for those today who look to both as spiritual ancestors to refer to the doctrine they follow not as " Marxism " but " Marxism-Leninism." 96 The Soviet experience, it will be seen, owes more to Lenin and his successors than it does to Marx. The writings of Marx have proved a powerful and pervasive influence on subsequent: social and legal thought, and by no means confined to those countries in which the ruling ideology traces its world-view to the writings of Marx. The pervasiveness of Marx's influence is only matched by the variety of the forms which Marxism has taken. Three of these are sketched in t ' i s section. Others will appear in the discussion of the Soviet, Chinese and Yugoslav experiences as well as in the exposition of contemporary Marxist thought in the United States and this country. Karl Renner Renner's Institutions of Private Law and their Social Functions 97 is an attempt to utilise the Marxist system of sociology for the construction of a theory of law. He set out to demonstrate that in spite of the stability of legal concepts, like property or contract, their social functions had undergone profound transformation. The illusion of conservatism, immutability, uniformity is crhted but in reality considerable adaptation has taken place. Renner believed t ' a t to understand a legal concept one had to penetrate its economic base. Furthermore, he stressed the importance of history. His particular interest was in the changing functions of the legal institution of private property and in the need to explain the functions fulfilled by legal institutions at particular points in time. Thus, he shows how in medieval society ownership symbolised a unit of which the family farm was typical. Then the place of production and consumption was the same and the legal conception of ownership represented its economic base. When, however, ownership of a complex of things (now called " capital ") no longer coincides with the base of personal work, it becomes a source of 96 97 An interesting critical account of the relationship between Marx and Lenin is Plamenatz, German Marxism and Russian Communism (1954). Published in English in 1949, with an introduction by Kahn-Freund. Useful additional discussions are Robson in Perspectives in Jurisprudence (Attwoll ed. 1977), p. 221; Tigar and Levy, Law and the Rise o f Capitalism (1977). pp. 303-309. Other Marxisms 739 a new power of command. Renner shows how the capialist exercises a quasi-public authority over those who are tied to him by a contract of service. The juristic institution has not changed but its function has. The owner of certain things can now use his ownership to control other persons and ownership becomes the centre of a number of complementary legal institutions, like sale, loan, tenancy, hire and contract of service. The latter is called a contfact and emphasises "will" but the real expression of the capitalist's power is not in the contract but the internal rules regulating conditions of work. Renner shows how in time the complementary legal institutions assume the real function of ownership and this itself becomes an empty legal form. In this way the concept of private ownership has become transformed into an institution of public law. The recent upsurge of interest in Marxism and particularly the awakening of the interest of lawyers and criminologists in Marx has led to rekindled interest in Renner's book. This is appropriate, for Renner's ideas about the relationship of property and society, though dating from the early years of this century, are as apt today as they were then. This century has witnessed considerable inroads into property to protect tenants, employees and consumers but the power of property remains, and the question of control has not altered ~ignificantly.'~ To some Renner's views will seem out of line with Marx. For Marx law was part of the superstructure.' Renner would appear to be suggesting that legal forms can remain unchanged despite economic transformations in society. Renner had, however, read Marx and perhaps understood him better than many of those who attribute a straightforward economic determinism to him. Renner noted that infrastructure and superstructure were " metaphors " and that they served " only to illustrate the connection, not to define in exact terms." He also observed that " the mechanism by which economy as the causal factor brings about the effect of law is obscure and ~nexplored."~ For Renner the law might thus itself become an active agent in reshaping social conditions. Renner's book repays study as the first, and still the most detailed, study of the relationship of law and e ~ o n o m y . ~It shows the 98 99 1 2 3 4 See Taylor, Waltori and Young, The New Criminology (1973). This point is well made by Robson, op. cit. Cf.ante, 729. Znstitutions of Private Law, p. 55. Zdem. p. 56. A celebrated non-Marxist study of the relationship is Weber's Law in Economy and Society (1954). For a Marxist critique of Weber, see Walton in The Sociology of Law (Carlen ed., 1976), p. 7. Cf.Hunt, The Sociological Movement in Law (1978), Chap. 5. 740 Marxist Theories of Law and State relationship to be more subtle and complicated than a superficial reading of Marx would indicate. Renner's study is significant for demonstrating the part which legal culture has played in economic development. He shows, for example, how the English doctrine of estates contributed towards a more rapid shift from feudal to capitalistic relations than was the case on the Continent where the Roman law concepts of property contained, as a matter of principle, the element of eternity. Antonio Gramsci G r a m s ~ i ,the ~ founder of the Italian Communist Party, developed his most important ideas whilst he languished in prison under Mussolini. His Prison Notebooks were published posthumously and only appeared in English in 1971. They reveal Gramsci to be one of the liveliest and creative of Marxist thinker^.^ An interesting and novel construct in Gramsci's thought is that of " ideological hegemony." He believed that class domination resulted as much from popular consensus engineered in civil society as from physical coercion or its threat by the state apparatus. This was, he thought, particularly the case in advanced capitalist societies where the media, mass culture, education and the law take on a new role.8 It followed that the existing order was strengthened and perpetuated by certain "superstructural" phenomena and that therefore the struggle for liberation required the creation of a " counter-hegemonic" world-view. Previously Marxists had focussed on economic relations in society. Gramsci widened horizons to embrace politics, culture and ideology. He stressed the complex inter-relationship of each and urged that no aspect of "bourgeois culture" was immune from the class struggle. Unlike most Marxists Gramsci thought the participation of socialists in bourgeois institutions de~irabile.~ 5 6 7 8 9 Useful discussions are Anderson (1976-1977) 100 New Left Review 5; Boggs, Gramsci's Marxism (1976). Gramsci's concepts, notably "hegemony," are being employed with increasing frequency by scholars in many disciplines. See for example, Nairn, The Breakup of Britain (1977), pp. 132-137, Thompson, Whigs and Hunters (1975), Chap. 10, Beirne, Fair Rent and Legal Fiction (1977), p. 79, Williams, Marxism and Literature (1977). On it see Hunt in The Sociology o f Law (Carlen ed., 1976), pp. 35, 42. There is a full discussion of its history and uses in Anderson, op. crt. V&, that of " an educator " (Prison Notebooks, p. 260). Against Gramsci's point that the bourgeois state induces obedience through ideological hegemony, it may be said that this is in fact the case with all ruling ideologies including communist ones. C f . Poulantzas, Political Power and Social Classes (1973), p. 217. The Frankfurt School 741 From 1923 to the late 1930s and then again since 1949 ' O there has flourished in Frankfurt a critical school of Marxism particularly associated with Marcuse. Influential in the rediscovery of Marx's writings, especially his early writings, this school has also been instrumental in trying to wed Marxism to social psychology. The influence of Freud is particularly noticeable in Marcuse " but is to be detected in other exponents as well. The " school" notes the way in which society is increasingly subjected to the control of technocrats. Habermas points critically to the oppressive complexity of advanced technological society, whether it be capitalist or in the communist rkgimes of Eastern Europe.I2 He emphasises not the exploitation and class struggle within modern capitalism, but rather the ways in which technology and science create a specific type of knowledge which is utilised to maintain domination and repression. Implicit in this critique is how alien to the spirit of Marx is Soviet society. The impact of technocratic ideology led Marcuse to doubt the revolutionary potential of a working class dominated by it. Technology also led to the generation of sufficient wealth for the " ruling class " to buy off the working class by turning them into " consumer robots." He put his faith instead in other "persecuted" minorities who he maintained were " outside " society, such as students and blacks.'= The student and ghetto revolts of the late 1960s made Marcuse something of a cult figure. Nothing in Marx corresponds to these new " classes ": indeed, if anything, they resemble the Lumpenproletariat whom Marx distrusted so much. The ideas of Renner, Gramsci and Marcuse show -the need to view Marxism not as a fixed body of ideas but as a world-view capable of adaptation to changing circumstances. Nor can it be denied that each of the thinkers surveyed (even if we reject many of the premises underlying their approach) has made some positive contribution to an understanding of the problems that Marx grappled with in the middle of the nineteenth century. The Bolshevik revolution lacked a theory of law as such. With the revolution came the belief that the Messianic age had arrived. 12 During the Nazi period it moved to New York. See Eros and Civilisation. See Toward a Rational Society (1971) and Knowledge and Human Interests 13 One-Dimensional Man (1964). 10 (1970). Recently, he has put his faith in radical feminism. 742 Marxist Theories of Law and State The first Constitution of 1918 proclaimed the installation of socialism under which " there will be neither division into classes nor state authority." It was believed that there was no need for private law though Lenin saw the need for public law commands to be given by the proletarian government in the interests of the proletariat. Criminal law was placed in the hands of the Cheka (the Extraordinary Commission for Struggle against Counterrevolution, Sabotage and Official Crimes, better known as the ' Red Terror ').l4 This period of revdutionary socialism came to an end in 1921 with the proclamation of the New Economic Policy. This was a period of mixed economy. Agriculture was denationalised though industry remained in state hands and there was strict supervision of capitalist elements which, furthermore, were heavily taxed. The restoration of the market necessitated a resuscitation of private law. A civil code modelled on Western bourgeois codes was the result. The code did, however, contain some distinctivedy socialist principles. Thus, Article 1 proclaimed the protection of civil rights except where exercised " in contradiction with their social-economic purpose." The jurists of this period were familiar with Western jurisprudence.15 It was 'a period of " intellectual ferment " and no one line was the prevailing orthodoxy. With the exception of Pashukanis there was probably little familiarity with the writings of Marx. There were discussions about the incompatibility between law and freedom and the meaninglessness of civil liberties.I6 Law was described by Goikhbarg, the author of the Civil Code, as an " even more poisoning and stupefying opium for the people" l 7 than religion. Pashukanis The most significant jurist of this period, arguably the best jurist Soviet Russia has produced and certainly the leading exponent of Marxist jurisprudence, was Pashukanis.ls His theory of law, the Commodity-Exchange Theory, saw contract as the foundation of all law.lg Thus labour law was nothing more than a series of employment contkacts, family law derived from a contractual view 14' 15 16 ' 1 18 1"1n On which see Hingley, The Russian Secret Polim (1970), Wolin and Slusser, The Soviet Secret Police (1957). This point is made by Jaworskyj, Soviet Political Thought (1967). Soviet jurists were particularly interested in the writings of Kelsen and Duguit. See, for example, Podvolotskii in Jaworskyj, op. cit., p. 118. Quoted idem, p. 57. Useful discussions of Pashukanis are Sharlet, Soviet Union (1974), Vol. 1 , No. 2, p. 103; Fuller, 47 Mich.L.R. 1157; Arthur, Critique no. 7 (1976-7), Redhead, Critique no. 9 (1978). a striking ~ h r a s ehe referred to all law as " commercial law." The spirit of Maine seems to live on in Pashukanis. C f . ante, 635. The Soviet Experience 743 of marriage and even criminal law rested on a kind of bargain between the state and the citizen, whereby equivalent punishments were meted out for particular acts and the criminal bought off the blood feud or " paid for his crime." Pashukanis believed that law reached its highest point of development under capitalism. Indeed, there were no other legal norms besides those of bourgeois law. It followed that there was no such law as proletarian law and that the Soviet Union, in so far as it needed to use law, would have to use bourgeois law. This was all the more so during a period like that of the New Economic Policy. Pashukanis believed that law would ultimately wither away to be replaced by administration. In a socialist community private law disappeared, being swallowed up in the public sector, which was conceived as purely administrative, consisting not of fixed rules but only of guides to administrative discretion. Further, as man became a " group creature " and there was complete identity of interest, morality too would disappear since this also was founded upon a concept of exchange. However, so long as the Soviet Union needed law it must use bourgeois law and furthermore could not develop it since by nature it reached its apogee under capitalism and bourgeois law was based on " individualism and contractualism." 19" Stalinism The NEP came to an end in 1928. By then Stalin was in charge and the first of the Five Year Plans began. Pashukanis himself attempted to revise his views to fit t'he new political circumstances but this did not save him and he disappeared in 1937, denounced by Vyshinsky. He was rehabilitated during the Khrushchev era. Stalin's rule lasted until 1953. Although initially there was recollectivisation of agriculture and positive content was given to the Marxist idea that law would disappear to be replaced by the Plan, this was the p r i o d of the strengthening of the state and of revolutionary legality. Vyshinsky, the leading spokesman 20 of this, wrote of the formal law being subordinated to the law of the revolution. The Plans and revolutionary legality together meant that the policy of a tbtally planned economy took precedence over the provisions of the Code. By 1936 it was said that socialism had arrived but that it was impossible for law and the state to wither away in the foreseeable future. There was accordingly a wholesale restoration of law. The 1936 Constitution was a symbol For a recent article by a Western jurist with similar views see Balbus, 11 Law and Soc. Rev. 571 (1977). He hardly deserves to be called a jurist. Fuller's comments, op. cit., repay study. 196 20 744 Marxist Theories o f Law and State of the new emphasis on law, stability and legality. Vyshinsky emphasised that socialist law was different from bourgeois law. The rule of the Communist party leaders was ndively identified with the mass of the proletariat. The power of the state was accordingly to remain even under communism, so long as there was " capitalist encirclement." In a discussion of Marxist theories of law and state the Stalinist era cannot be forgotten, but it can be said nonetheless that the resemblance between what Marx wrote and what Stalin did is about as close as the relationship between the Sermon on the Mount and the pre-Reformation church. Stalin was responsible for the first modern truly totalitarian state. His purges are equalled ~ is no jurisprudence of note only by the Nazi h a l o c a u ~ t . ~There during this period. Vyshinsky 22 argued that Pashukanis and others like Stuchka 23 had liquidated law, drowned it in economics. It was, he claimed, a political category: at the basis of Soviet law lay the political and economic interests of the workers and peasants. His definition of law, though muddled, smacks as much of Austin 2 4 as of Marx. It was the aggregate of norms expressing the will of the dominant class, guaranteed by the coercive force of the state. Who, one may ask, was the dominant class? Indeed, who were the other dominated class or classes? Vyshinsky must have seen these problems for later he refers to " the will of our people which is ruling." Contemporary Legal Thought in the Soviet Union Stalin died in 1953 and was denounced by Khrushchev in 1956. The Soviet Union then began its " expanded construction of communism." Under Khrushchev it was argued that the state no longer needed to get stronger and that the dictatorship of the proletariat had ceased to be necessary. Khrushchev referred instead to an " All-People's State," a society based on voluntary social co-operation rather than force. With the fall of Khrushchev in 1964 this concept disappeared. Nothing was substituted in its 21 A good account is Medvedev's Let History Judge (1971). Stalin is there described as the " embodiment of all the worst elements in the Russian revolutionary movement " (p. 362). In a rather different way the novels of Solzhenitsyn (for example, Cancer Ward and Gulag Archipelago) are graphic descriptions of the Stalinist era. "In our revolutionary court we are guided not by articles of the law . . [but] on the basis of considerations of expediency." (Krylenko, chief state prosecutor, 1918-31, quoted by Solzhenitsyn, who comments : " That was the way it was in those years: people lived and breathed and then suddenly found out that their existence was inexpedient," The Gulag Archipelago (1974), P. 309). See his writings in Jaworskyj, op. cit., D. 324, and in Babb and Hazard, Soviet Legal Philosophy (1951). The first president of the Soviet Supreme Court. 24 Cf. ante, 223. . 22 23 The Soviet Experience 745 place. But the concept itself was reactjvated in 1977." The consequences of the " All-People's State " concept were brought out in the twenty-first Party programme in 1961. The importance of the Party as an 61ite,26as the social organisation, was stressed, as was the intention tb democratise public administration and in so doing, eliminate bureaucra~y.~'Vyshinsky's jurisprudence, still dominant after Stalin's death, was denounced in the same year. Stalin's laws were attacked for lacking legality and jurists for falling under the " cult of personality." The 1961 Party programme thus inaugurated a new era in Soviet jurisprudence. Emphasis was placed on law and legality during the transitional period to Communism. An increased role was given to social organisations, people's patrols 29 and comrades' courts 30 as a means of increasing participation in justice. Among jurists of this period were S t r o g o v i ~ h ,who ~ ~ emphasised the importance of socialist legality32 and the way in which Soviet law expressed the will of the Soviet people and the policies of t'he Communist party, and Ioffe and Shargorodsky who explained why socialism should need law more than capitalism.33 The 1961 Party programme deft open the question of the role of law upon the attainment of communism.34 Ioffe and Shargorodsky insisted that Soviet law was " a most important lever . . . in establishing the material and technical base for Communism " and that its role was also " important in the field of ideological education of the Soviet people." Less d e a r is whether it was believed that law would atrophy when communism emerged. Ioffe and Shargorodsky saw the continuing need for " normative regulation." For whilst they conceded t'hat communist society was a "highly organised society of free and conscious working persons in which society is self-administered,"they saw the need for "unified planning of the economy and organised allocation of labour and regulation of working time." 36 Nevertheless, in " Communist 25 26 27 28 29 30 31 32 33 34 35 In the prologue to the new Constitution. See post, 746. C f . Lenin, ante, 736. See Romashkin, Soviet Law and Government, Vol. 1, No. 1, p. 3. A good example is " For Complete Elimination of the Harmful Consequences of the Personality Cult in Soviet Juris~rudence" Soviet Law and Government, Vol. 1, No. 1, p. 24. On which see Berman, Justice in the U.S.S.R. (1963), pp. 286-288. Idem, pp. 288-291. On developments in Eastern Europe see Butler 25 Current Legal Problems, p. 200 (1972). Soviet Law and Government, Vol. IV, No. 2, p. 13. Idem, p. 20. And see post, 792. Soviet Law and Government. Vol. 11, No. 2, p. 3. See the account in Romashkin, Soviet Law and Government, Vol. I, No. 1 , p. 3. At p. 9 he quotes Khrushchev to the effect that a society without norms would be " unbearable and like Babel." Op. cit., 11. 20. 36 Idem, n. 6. 746 Marxist Theories of Law and State Society there will be no law, as there will be no state and state compulsion." They recognised that there would be " occasional excesses by individuals " but these violations of norms of social behaviour would be met by " measures " applied by " public opinion, the strength of the group, social influence." It has been said 39 that while Lenin and Khrushchev regarded state coercion through criminal law " as a holding operation that would lead, through social development of the new man, to no state coercion at all" and Stalin "regarded state coercion as something to push to the physical limit before it could wither away," that Brezhnev "moved step by step toward a synthesis of past approaches." His policies are directed towards "law and order." 40 Campaigns against hooligans, dissidents 4 1 and wouldbe emigrants 42 began which have lasted until today. Policies have changed though there are no sweeping ideological changes to mark these. Phrases like an " all-people's state " do not fit so long as campaigns are waged against dissidents and others who are seen to challenge the Soviet state. Chkhikvadze, then the director of the Institute of State and Law, noted in 1966 that whereas Stalinism " had overstressed government channels, administrative processes and coercion," Khrushchev had gone to the other extreme in emphasising " the role of the community in strengthening law and order. . . . This has caused us to underestimate the role of organs of state coercion in educating the new man, in the fight against survivals of the past. " 43 The Brezhnev era has been one of repression in which the clock has been turned back in the direction of Stalinist policies. It has also seen a new C o n ~ t i t u t i o n . ~The ~ prologue to this speaks of the Soviet Union as a "developed socialist society" and this is " an objectively necessary stage on the road to communism." In other words a higher stage has now been reached than when the 1936 Constitution was proclaimed. The tasks of the dictatorship of the proletariat have been fulfilled and "the 37 39 40 41 42 44 Idem, p. 7. 3s Idem. Jwiler, Revolutionary Law and Order (1976), p. 84. There were, of course, comparable moves in the West at the same time. On the question whether law and order are synonyms see the Marxist anthropologist, Diamond, ante, 702. See Tokks, Dissent in the U.S.S.R. (1975), Feldbrugge, Sarnizdat and Political Dissent in the Soviet Union (1975) (Samizdat are underground publications). Among the more important trials have been those of Sinyavsky and Daniel (see Hayward, On Trial (1967)), Ginzburg (see Reddaway, The Trial o f the Four (1972)), Litvinov (see Gorbanevskaya, Red Square at Noon (1972) ). Taylor et al., Courts o f Terror (1976) is useful. See Kuznetzov, Prison Diaries (1975). See also Lapenna, 1 Rev.Soc. Law 73 (1975). 43 Quoted in Juviler, up. cit., pp. 86-87. In 1977. It was promised as early as 1959. The draft was approved the same day as Podgorny was dropped from the ruling Party Politburo. The Soviet Experience state of the whde people" has now arrived. No longer is it necessary to refer to representative bodies as " soviets of workers' deputies ": they are now " soviets of people's deputies." The Communist party is given due prominence: it is " the leading and guiding force of Soviet society and the nucleus of its political system." 45 AS before citizens are "guaranteed" a plethora of rights though these must be " in conformity with the interests of the working people and for the purpose of strengthening the socialist system," 4 h 0 r must the " exercise by citizens of rights and freedoms . . . ignore the interests of society and the state." 4 7 Further, unlike the United States4' or West German Constitut i o n ~ the , ~ ~ Soviet Constitution is not a basis for litigation, nor is there any attempt to establish an independent judiciary.50 Dissidents have tried to invoke the Constitution (to date the 1936 one) but no Soviet court has been impressed by such claims.51 In all probability the 1977 Constitution, like its predecessor, will be a meaningless scrap of paper.52 Socialist Legality Soviet socialist legality is, according to Strogovich, writing in 1965, "the rigorous and undeviating adherence to and execution of Soviet laws by all state agencies, public organisations, persons in authority and citizens. . . . [It] does not admit of violation of the law, deviation from the law or getting around the law-under no circumstances and not for any reason. . . . No one has the right to disregard [a law], to bypass it because he does not agree with it, or for any other reasons. It is necessary to train people, citizens, officials, and civic activists in the spirit of profound respect for Soviet law and intolerance of any and all violations of the law." 5 3 This pious injunction is more honoured in the breach than in the observance, as witness detention without trial for periods far longer than that permitted under the Constitution, trials which take place not in public but before selected onlookers, and the 45 47 48 50 51 52 63 4 6 Art. 50 (same as old 1936 Constitution, Art. 125). Art. 6. Art. 39. 4 9 Ante, 133. Ante, 121. A piece of bourgeois mystification in Soviet, and indeed Marxist, eyes. See Feldbrugge (1973) Czermnt Legal Problems 241 (also in Contemporary Soviet Law (Barry, Butler and Ginsburg, eds., 1974). "The real constitution," noted Szamuely, " contains the actual rules of Soviet political life. . . Every intelligent Soviet citizen is familiar with these rules and acts in accordance with them." (Survey, No. 72 (1969)). " Problems of Methodology in Jurisprudence" Soviet Law and Government, Vol. 4, No. 4, p. 13. . 748 Marxist Theories of Law and State refusal to allow the defendant to be represented by a lawyer of his Nevertheless, the phrase remains a key one in Soviet jurisprudence. I t was emphasised particularly in Khrushchev's denunciation of Stalin. Under Brezhnev th,e idea has come to be coupled with that of " socialist law and order." 55 The two are not entirely compatible, as we are wdl aware. Law and order campaigns often threaten to endanger the strict observance of the rule of law.56 Parental Law In many systems of law the legal process incorporates an educational function.57 Indeed, the idea that the trial and punishment of offenders should act as a general deterrent to others embodies this view. But in the Soviet Union the concept assumes greater significance. Indeed, Berman in his Justice in the U.S.S.R. points to what he calls " parental law " as one of the three main strands of Soviet law.58 There are three distinct yet overlapping themes in the Soviet concept of parental law. There is the process of legal socialisation. Soviet citizens are expected to know the law and to have inculcated into them a system of communist morality, part of which is a consciousness of law and a willingness to abide by it. Secondly, there is the continuous emphasis on legal propaganda in the media and elsewhere so that citizens are constantly made aware of the law. Thirdly, and most significantly, the legal process is seen to have an educational role. Trials do not just settle disputes: they act as teaching vehicles as well. Soviet procedure is structured with this educational role in mind. Many trials are held on circuit, for example in factories. The courts thus go out to the people.59 There is also considerable lay participation in the administration This is particularly the case in trials of dissidents. C f . ante, 746. 56 On this see H. Packer, The Limits of the Criminal Sanction (1969). 57 Particularly with juvenile offenders. And see Llewellyn, quoted, post, 799. 5s See post, 796. See also now in Tapp and Levine, Law, Justice and the Individual In Society, Chap. 8. The other two are the Marxist heritage (see the emphasis on collectivism and Plans (post, 750) and its specifically Russian character ( c f . Savigny, ante, 63Q. Hazard has detected a " common core" in the family of Marxist legal systems. This he attributes pre-eminently to " the degree of involvement of all elements of society and d its institutions in the operation of a fully state-owned and planned economy" (Communists and their Law (1969), p. 523). Hazard concludes that " there are universals found in all 14 Marxian socialist states, which provide reasons to conclude that the legal systems of those states, in spite of a wealth of differences, a vocabulary and even a ' grammar ' inspired by the Romanist systems, constitute a distinctive legal family " (fdem, pp. 527-528). Hazard's thesis has been criticised. See, for example, Ehrenzweig, 58 Ca1if.L.R. 1005, Berman, Problems of Communism (1971), Pt. 5, p. 24. 59 Trials are not given the sort of press coverage that they get in the West. 54 55 Three Key Ideas in Soviet Law 749 of justice. People's patrds perform as an auxiliary police force. Comrades' courts (made up of representatives of the kollektiv in a place of work or residence) hear cases of minor importance and can impose minor penalties.60 Article 1 of the revised Statute on Comrades' Courts encapsulates this educational ideology. They are " called upon actively to promote the nurturing of citizens in the spirit of a communist attitude toward labour, an attitude of care toward socialist ownership, the observance of the rules of socialist community life, the development of a feeling of cdlectivism and comradely mutual assistance in them, and respect for the dignity and honour of the Soviet people." The question whether, to what extent, and how the law can take on an educational role is not unlike that raised by Olivecrona's view that force is one of the primary factors in moulding moral standard^.^^ It is a view which finds some support both in psychology and s o ~ i o l o g y . ~Both ~ Piaget's studies 64 of the moral development of children and Milgram's on authority 65 suggest that our standards of right and wrong are mediated through lawtype models. Berman himself believes that Soviet ideology uses the social learning theory developed by psychologist^.^^ This emphasises "the child's imitation of his elders and his desire for the rewards he obtains for acting as they do--or seem to do-and the punishments he receives for acting otherwise." He sees the Soviet criminal trial as " a dramatic experience of society's withdrawal of love from the offender and his consequent excommunication." Social learning theory breaks down, however, where the " learner " has no respect for the " teacher " and this is nowhere more apparent than in " political " trials such as those of disddents in the Soviet Union. The question is, therefore, posed as to how the Soviet Union perceives such trials. Berman himself suggests that the cognitivedevelopmental theory (close in goal to utilitarianism 69)may also prove unsuccessful in such a context. We 60 On the history of these see Berman and Spindle? (1963) 38 Washington L.R. 842. On the concept in Eastern Europe see Butler (1972) 25 Current Legal Problems 200. 61 62 6s 64 6s 66 67 68 69 c cussed by Butler (1977) 3 Rev.Soc.Law 325. This reproduces the new statute. Ante, 597. See, for example, Colombotos (1969) 34 Am.Sociol.Rev. 318, Waldo and Chiricos (1972) 19 Social Problems 522. C f . Berkowitz and Walker (1967) 40 Sociometry 419. The Moral Judgment of the Child. Obedience and Authority, c f . ante, 186. See generally (1971) Journal of Social Issues, Vol. 27, No. 2, part, the article by Tapp and Kohlberg. See now generally Tapp and Levine, Law, Justice and the Zndividual in Society (1977). (1972) 21 I.C.L.Q. 81, 93. Zdem, 94. Berman explains this at 21 I.C.L.Q. 93. C f . ante, 171. 750 Marxist Theories of Law and State may therefore be forced, he notes, " to take more seriously psychological and religious theories that stress the formation of conscience by symbolic acts." The irony is that it was for trials of dissidents that the educational role of the court was mainly developed. Centralised Economic Planning Although the Soviet Union uses concepts such as " contract" not unlike Western capitalist systems, there is no better example of the socialist content of such concepts than in the overall control that the state exercises in the sphere of economic production and planning. Contracts are still needed to regulate transactions between state organisations. The terms of these contracts are not, however, freely negotiated but originate in centralised plan assignments. Breaches of contract and other ,legal disputes between enterprises are not resolved by ordinary courts but by a system of arbitration tribunals (Gosarbitrazh). These pay regard to government economic policy. The whole economy is centrally regulated. There is a central State Planning Committee (Gosplan), and Five-Year Plans are adopted by the Supreme Soviet of the Soviet Union as statutes and have binding effect. The Soviet Union is currently in the midst of its tenth Five-Year Plan. The ninth (1971-75) emphasised the importance of an increase in living standards: the current plan has returned to earlier priorities of a growth in heavy industry. A manager who fails to fulfil the plan target for his factory does not break the law as such though his career prospects will not be enhanced. In the West there is considerable participation in the e c ~ n o m y . ~ ' In Britain a large number of major industries are nationalised or under state control in other ways. There is a National Economic Development Council (" Neddy "). The Labour Government of 1965 had a short-lived National Plan: broadly speaking, it was a plan to transform the economy by mobilising private enterprise in the public interest. Commentators have referred to the growth of " corporatism " in Britain.72 The Industry Act of 1975 is often singled w t as an example of this. The differences between this and what goes on in the Soviet Union lie in the absence of compulsion here and the extensiveness of the Soviet system. The British system remains a " mixed economy." 70 71 72 Op. c i t . , n . 15, p. 94. See Holland, The Socialist Challenge (1975), part, Chap. 5. See J. Winkler (1975) 2 Br.J. of Law and Soc. 103. C f . Westergaard, in Class and Cllass Structure (Hunt, ed., 1977), p. 165. Contemporary Marxist Jurisprudence in the West 751 CONTEMPORARY MARXISTJURISPRUDENCE IN TIE WEST The last decade has seen a resurgence of interest in Marx in the West. It is reflected in a growing number of books which interpret the state,73law,'4 criminology 75 and legal history in Marxist ways. Two of the most influential of these books have been Quinney's Critique of Legal Order in the United States and Bankowski and Mungham's Images of Law in this country. Quinney Quinney concentrates on the " social reality " of crime. " Criminal pdicy in particular reflects the capitalistic outlook and interests," he notes. In this concentration Quinney is at one with much contemporary Marxist thought. Far less attention has been given to civil law, although a comparatively small part of law is criminal law. This is surprising for it is civil law that defines the particular method of production of surplus value under capitalism yet there is no Marxist study of labour law as it operates in this may country 'lg or the United States. Crimes like conspiracy lend themselves to Marxist analysis far more easily than property crimes. The working class by and large believe in property and want the criminal law to prokct it.81 Quinney sees criminal law, enforcement as a way in which the ruling classes preserve their interests. I t is a way of protecting and promoting the continuation of the capitalist order. H e does not say very much about capitalism: it is rather taken for granted in his discussions of crime control. He examines the composition of various commissions set up in the United States in the 1960s to examine breakdowns in law and order, ghetto riots and the like. Its members, he tells us, consisted of " a select group of persons Miliband, The State In Capitalist Society (1969). See also the exchange of views between Miliband and Poulantzas (see Blackburn, Ideology in Social Science (1972), p. 238), and Hall, Policing the Crisis (1978). 7 4 Beirne, Fair Rent and Legal Fiction (1977) on twentieth-century housing legislation is a good example. See also Fraser, Socialist Review, no. 40141 (1978), p. 147. 76 Taylor, Walton and Young, The New Criminology (1973) and Critical Criminology (1975), Pearce, Crimes o f the Powerful (1976) and Platt, The Child Savers (1969) are good examples. An interesting contrast are the views of Hirst (in Critical Criminology, p. 203). 76 Thompson, Whigs and Hunters. 7 7 A title of an earlier book of his. Quinney's " conversion " to Marxism is recent. C f . ante, 396. 7s Critique of Legal Order, p. 139. 79 One may perhaps envisage the "dialectic " invoked to bestow on recent English trade union legislation and the Protection of Employment Act 1975 the aim of bolstering capitalism. 80 C f . Robertson, Whose Conspiracy? (1974), Bunyan, The History and Practice o f the Political Police in Britain (1976), pp. 36-51. 8 1 But c f . the views of Gramsci, ante, 740. 73 752 Marxist Theories of Law and State who represent dominant class interests " 82 (ironically, in the aftermath of Watergate, some of them have themselves served prison sentences !). Such commissions, he argues, " could do nothing more than accept the official definition of the crime problem, a definition that construed crime to be a threat to the existing system." 8 3 The " perspective of the oppressed " 84 was not represented. Much of this discussion is an interesting attempt to apply Marx's ideas to the problem of law and order today. But there is no real development of Marx's ideas. Quinney looks forward to a " socialist society." He believes, he tells us, in democratic socialism. He is influenced by the democratic strain in Marx and not the state socialism of the East. In his prescription for the future he would, however, seem to part company with Marx. "The state," he argues, "eventually may be abolished or altered in a socialist society."86 But why "may be abolished " or how " altered "? This is a strange position to take, for he also maintains that the capitalist state can only continue to exist so long as there is the need to maintain the dominance of the ruling class. Is Quinney here drawing some distinction between capitalist and other states and, if so, what? Quinney also states that "law as we know it today will be relegated to the history of a former age." He is not denying, it seems, the need for law in his " socialist society." Where theory clashes with realism, logic becomes contorted. Ironically, in Marxian terms, there should be greater need for criminal law in a " socialist society " (lust, greed, loss of temper, will continue to exist) than civil law but Quinney's emphasis has been exclusively on crime control. Perhaps the most amazing of Quinney's assertions is his reference to countries like Korea, Vietnam and Algeria (were he writing today he would probably have added Cambodia) where, he alleges, reconstruction is taking place on a " socialist basis." It would surely exceed the bounds of human casuistry to maintain that these countries (states?) practise " democratic socialism." Bankowski and Mungham Images of LQw is described as an introduction to the relationship of law and capitalist political economy. Like Marx and Quinney, they view law in capitalist society as oppression. They focus not on crime but on " poor man's law," welfare law, housing law, and 82 OP.cit., n. 6, p. 60. Idem, p. 73. Idem, p. 86. ' 5 Idem, p. 186. 8.8 Our italics. Idem, p. 190. 8 7 Our italics. See also now his Class, State and Crime (1977). 83 84 Contemporary Marxist Jurisprudence in the West 753 so forth, and on the institutions which have mushroomed in the 1970s to service the legal needs of the underprivleged. local legal centres, duty solicitors and the private profession insofar as it handles these matters. Cain's comment on this approach that " ' rich man's law,' the laws of real property, company law, are far more central to a sociological analysis designed to shed light on the vital question of how the poor came to be so " is apposite. Bankowski and Mungham argue, however, that in form they are no different: both are locked in the interstices of capitalist society. They do not think that law can change capitalist society. They want to transform this; not create radical law. They are critical of the way in which the radical law movement works from within the social framework. They even point to what they conceive as dangers in the radical law movement: it increases the poor's submissiveness to law by fostering the idea that people have no power and cannot do anything about their lives themselves, for only law can change the world. They see the future in a " libertarian revolution " in which the people will organise their own liberation. The socialisation of production will eliminate the problems of capitalism. Law and the state will then begin to wither away. They envisage future society as a " system of councils." 8"ltho~gh law will wither away "there will still be the difficulty of running a free but relatively complex society." Like Quinney, at this stage certain contradictions appear in the authors' reasoning. We are told that "man as socialised being will be free, even though he disagrees with individual decisions. . . . Legality will reappear to ease problems of clashing diversities." They refer also to " socialist legal institutions " which, presumably, will deal with the differences of "-opinion " to which they refer. " Clashing diversities," one would have thought, are caused (in Marxian terms) by class and if the revolution abolishes classes there should be no "clashing diversities." Further, if law is subordinate to the material base of society (as Marx 9 2 and Bankowski and Mungham argue) and man is to be free, then there ought to be no institutions to take away that freedom and, if there are to be laws, there must be instithtions to see they are enforced. But if, as Bankowski and Mungham argue, law is oppression, then is the law in their revolutionary society any different and, if so, how? (1975) 2 Br.J. of Law and Soc. 61, 63. Images of Law (1976), p. 30. 90 Zdem, p. 29. 9 1 Zdem, p. 31. Q2 Cf.ante, 729. 88 89 754 Marxist Theories of Law and State Their discussion of radical lawyers is stimulating but this too causes problems. For example, they suggest the move away from traditional law in terms of the material interests of the lawyers and law teachers. This is a misinterpretation of the materialist conception of history. An orthodox Marxist would explain the movement towards " poor man's law " in terms of capitalist society itself. His argument would take the line that there was something about capitalist society which required it to produce welfare law and he would ask questions about why it was important in capitalist society for the ruling class to ensure the poor got their rights. Lawyers, in other words, would be seen as responding to the needs of capitalism rather than as a primary motivating force. Certain features of Images of Law suggest its authors might more appropriately be categoried as anarchists, not lease their final declamation, " seize the time." 9 3 Criticism of Marx's theories takes a number of distinct lines. First, there are those which quarrel with Marxian analyses of society and his predictions d what a revolution would achieve. Secondly, there are those which point to the non-applicability of the theory to contemporary society, whether of West or East. Arguments of the first type point to the overemphasis in Marx of the significance of economic class,94and to the fact that there are other dimensions of stratification, like race and sex. As has been pointed the Marxist response is predictably to view such inequality and oppression as in the interests of capitalism or at least a section of it. The dialectical interpretation is also criticised. Why should it end with socialism? Is Marx's picture of primitive society idealised? Was not Hobbes's description of the life of man in the state of nature as " solitary, poor, nasty, brutish and short " more accurate? g e Anthropological evidence, furthermore, has shown that private property and institutions like contract are to be found in societ'ies which Marx would, in every other sense, have regarded as " primitive." g 7 Historians have shown capitalistic attitudes and practices in pre-industrial society as early as the ninth century, and that the ideology of capitalism had rural 93 94 95 96 97 Images o f Law, p. 139. See also their approval of Wolff's In Defence o f Anarchism (1970). Cain describes their tpesis as " overlay of marxist language on a foundation of libertarian humanism ((1976) 3 Br.J. of Law and Soc. 286, 287). Weber was one of Marx's earliest critics on this score. Ante, 732. In Leviathan (1651). Pospisil, Kapauku Papuan Economy (1963). Marxist Theories of Law and State-+ Critique 755 origins.98 Further, feudalism has been shown not to be as static as Marx assumed. It has also been demonstrated that in England changes within it came from feudal lords and not from a class challenge to them.99 Marx's view of law can also be seen as over-simplified. Even if some law does exist to exploit the workers and to promote the interests of the " ruling class," it can be argued that law has many other functions as well. Indeed, some law restrains oppression. Marxists will argue that where it does this, the motive of the " ruling class " is self-interest rather than altruism. (But has capital punishment really been abolished for some devious economic motive of the ruling class?) Law sometim'es functions purely as a regulator. At other times it serves to enhance security or moral standards or the family. Yet it can be asked, whose social or moral standards are being secured and why the monogamous, patriarchal society is deemed deserving of protection. Marxists naturally have answers to these questions, whether one agrees with th'em or not. Legislation enforcing moral standards causes particular problems, for the middle classes seem to have a "monopoly of moral indignation " l and much " morals legislation " seems to emanate from campaigns of those who would not appear to be economically very p o w e r f ~ l . ~A bureaucracy like the police, a government agency or a professional organisation like the British Medical Association is also instrument in the passage and enforcement of legi~lation.~ Laws which are (or appear to be) against the interests of the " ruling class " also cause Marxists problems. As Chambliss put it "laws are passed which reflect the interests of the general population and which are antithetical to the interests of those in Reference has been made to this problem in an earlier power." ~ h a p t e r . ~Marxists give a variety of answers. Bonger in 1916 explained the paradox by suggesting another viz., that even the powerless had some power. This concession to pluralism does not meet with the approval of most contemporary Marxists. To Tigar such laws are a bribe, a small concession to buy off the 98 99 1 3 4 5 7 Hallam, " The Medieval Social Picture " in Feudalism, Capitalism and Beyond (Kamenka and Neale, eds., 1975), p. 29. West, " On the Ruins of Feudalism-Capitalism? " in idem, p. 51. The term is Ranulf's (Moral Indignation and Middle Class Psychology (1938) ). See Duster, The Legislation of Morality (1970); Sinclair, Prohibition-An Era of Excess (1962). Greenwood and Young, Abortion In Demand (1976), Becker, Outsiders (1963), Roby (1969) 17 Social Problems 83, Dickson (1968) 16 Social Problems 56. Crime and the Legal Process (1969), p. 10. 6 Criminality and Economic Conditions (1916). Ante, 362. " Socialist Law and Legal Institutions " in Law Against the Peopk (Lefcourt, ed., 1973). See also Wolfe, The Seamy Side o f Democracy (1973). 756 Marxist Theories o f Law and State demand for more fundamental. changes. To Hepburn "laws which appear inimical to a particular interest or segment of the capitalist klite may be seen as a symbolic means of internal selfregulation or as vehicles designed to protect the greater interests of the dlite by restricting those individual members whose reckless, public and harmful activities may alienate a large section of the powerless." This leads to yet another problem: what is meant by the " ruling class "? It is argued by D a l ~ l ,Rose ~ l 0 and Polsby,ll for example, that the power structure in contemporary society is a complex of power centres, a pluralist: congeries, which makes shifting compromises and accommodations but which does not coalesce into a monolithic all-powerful ruling klite. Pluralists deny that any one interest: can marshal the power regularly to impose its will upon the larger society through decisive control over governmental decision-making. Dahl points to the difficulties of identifying the ruling tlite as a well-defined group.12 Marxists like Miliband attempt to make such an identification. In The State in Capitalist Society l 3 he argues that the state includes not just the executive and legislative branches of government, but the civil service, local government, the judiciary, military and the police. He sees the "state system " as the interaction of these institutions. In these terms he tries to explain why an anti-capitalist government l 4 (he gives as an example the Labour government of 1945) failed to achieve a socialist society. He attributes this to the fact that it had to work with other members of the system selected and socialised by class background and political pressures under the old rdgime. Griffith's assertion that the judiciary supports the status quo and associates the public interest with the policies of the Conservative party is to similar effect.15 Griffith, however, does not define the status quo and ignores the very many cases where the judiciary has overturned it. The American Supreme Court under Warren was doing just this much of its dme.16 Control and the Legal Order " (1977) 1 Contemporary Crises 77, 85. Who Governs? (1961): Pluralist Democracy in the United States (1967). 10 The Power Structure (1967). 11 Community Power and Political Theory (1963). 1 2 An interesting question recently raised concerns whether there is a ruling class in the U.S.S.R. See Nove (1975) 27 Soviet Studies 615, Hirszowicz (1976) 28 Soviet Studies 262, Kusiv (1976) 28 Soviet Studies 274. 13 Chap. 3 (1969). 1 4 Idem, pp. 96 et seq. 15 The Politics of the Judiciary (1977). 16 Cf. ante, 130 and post, 853. 8 " Social 9 Marxist Theories of Law and State-+ Critique 757 Ultimately the Marxist-pluralist dispute I T revolves about which model best fits 'empirical reality. But this in itself is no easy investigation for the disputants are not agreed upon what they are investigating. Few questions illustrate better the elusiveness of " facts " in the social sciences and the impossibility of wertfrd investigation.18 Recent writing has tried to clarify the concept of power.19 Thus, from the one-dimensional view that dlites have power to influence policy, Bachrach and Baratz 20 have devdoped the idea that power should be measured not solely by positive actions which achieve desired objectives in a controversy but also by the ability to keep the controversy from surfacing in the first place. Power involves not just " decisions " but " nondecisions " in areas where interest is in maintaining the status quo. But how is one to determine empirically the existence of a non-decision? This seems a problem which the Scandinavian realists 22 would revel h. It may be possible to establish the existence of a ruling class tlite in a particular society at a particular time. At the moment, as Rock has commented in a perceptive article, little more than " anthropomorphic conspiracy theory " is to be found.23 What he writes of deviancy theory can be generalised. " The perspective offers no understanding of law as a complex and variegated rulesystem whose origins are frequently as mysterious to tlites as to governed. It offers no vision of a legal system as a series of constraints upon law-giver and ruled alike. It does not refer to legitimacy and authority other than in the context of manipulation and mystification. It does not provide for the elaborate patterns of accommodation that characterise many situations of social control. The law-giver is an Olympian figure endowed with a rationality, an innocence of unintended consequences, and a clear selfinterestedness. . . . Such a 1,egislator is a strange creature to discover in sociological analysis. He lacks plausibility, if only because it is difficult to conceive of a powerful group which is utterly emancipated from the common-sense ideas that prevail amongst 17 18 l9 20 21 22 23 Useful critiques are Mankoff (1970) 17 Social Problems 418, Cunningham (1976) 39 Science and Society 385. See Gouldner, For Sociology (1973), Chap. 1. Cf.ante, 439. See, in addition to works cited here, Lukes, Power-A Radical View (1976). (1962) 56 Am.Polit.Sci.Rev. 947; (1963) 57 Am.Polit.Sci.Rev. 632. Also in Power and Poverty (1970). Cf. Wolfinger (1971) 65 Am.Pol.Sci.Rev. 1063; Nadel (1975) 37 J. of Politics 2. Ante, 574. Cf.Russell's question: " Are there negative facts? " (See Urmson, Philosophical Analysis, p. 68). " Sociology of Deviancy and Conceptions of Moral Order " (1974) 14 Br.J. of Criminology. 758 Marxist Theories of Law and State the powerless. . . . But the origins of such a caricatured figure are quite intelligible. He is the natural outcome of an analysis which lacks a sense of history, a sensitivity to institutional patterns, and a range which is wider than the narrow focus upon encounters between deviants and officials." The other line of attack on Marx points to his failure tb predict twentieth-century developments. Since he is seen as same kind of a prophet this attack, if accurate, is legitimate. Thus, Dahrendorf 24 points to the decomposition of capital, the managerial revolution described by Burnham and Berle and Means 26 which has split off ownership of the means of production from their control. In fact only a tiny proportion of the population hold shares in private corporate enterprise^.^^ Is there any evidence that business policy has changed as a result of the change in personnel? Dahrendorf also refers to the decomposition of labour, divisions between skilled and unskilled workers, often between indigenous workers and immigrants, the plurality of status and skill groups, as wdl as the new middle class.28 There are also factors that mitigate class cleavage, the extension of the suffrage, the introduction of social welfare benefits, a certain amount of income redistribution through taxation. Inequalities undoubtedly remain.29 This is the case also in Eastern True, as Lane has written, there is no "private propertied class possessing great concentrations of wealth " 3 1 in state socialist societies. There is, however, what Djilas called a " new class," 32 a Party tlite, apparatchiki, who exercise rights of control over the use and products of collective property and expropriate surplus value from the subordinate class. Of greater significance, since proletarian victory promised the end of exploitation, is that no state socialist system has avoided totalitarianism. No truly Marxist society has yet emerged after a proletarian revolution. Marxists argue that this is impossible so long as such societies are surrounded by capitalist countries allegedly plotting 24 25 26 27 28 29 30 31 32 Class and Class Conflict In Industrial Society (1959). The Managerial Revolution (1941). The Modern Corporation and Private Property (1932). C f . Nichols, Ownership, Control and 1deolog.y (1969). See Westergaad and Resler, Class in a Capitalist Society (1975), p. 156. See table at p. 158. Marx was not unaware of some of these divisions. C f . ante, 730. Atkinson, Unequal Shares (1972); Lukes in The Socialist Idea (Kolakowski and Hampshire, eds., 1976), Chap. 6. See Lane, The End of Inequality: Stratification under State Socialism (1971), Parkin, Class Inequality and the Political Order (1971). Op. cit.,n.30,p. 69. In a book so entitled published in 1957. Marxist Theories of Law and State-+ Critique 759 their downfall. I t may be, on the other hand, that the Marxist, like every other Utopia, is inherently unattainable or impracticable. There is no definitive answer to this question. YUGOSLAVIA The developments of socialism in Yugoslavia make an interesting comparison. The Yugoslavs regard the Soviets as revisionists : they deplore, particularly, the development of State capitalism and growth of bureaucracy with its concomitant caste opposed to the true interests of the proletariat. The Yugoslav goal is to place the means of production at the people's disposal and for the power of the state and law to disappear. The ideals of the U.S.S.R. and Yugoslavia are thus the same, but the Yugoslavs regard Soviet delay in implementing the ideal as a repudiation of Thus the Yugoslav Constitution l2 embodies a decentralised state and puts a premium on local autonomy and on workers' participation in the economic management of the country. In each enterprise there is a workers' council which controls profits and manages assuming greater powers in these respects than any equivalent workers' organisations in the U.S.S.R. Workers' self-management,T3a as the Yugoslav approach has come to be called, has been accompanied by the elusive jurisprudential concept of " social property." 7 4 Social property is neither state property nor private property although it partakes in some measure of both. Authoritative definitions of social property stress its Marxian origins. For example, Edward Kardelj has written: " Marx explicitly states that the socialisation of the means of production does not mean the abolition of persond property but the abolition of class property. . . . But, social property means, in fact, the personal appropriation of the product of society on the basis of one's own labour.'' 75 Kardelj postulates that Marx's main For a short statement of Yugoslav criticism of the Soviet method, see David and Brierley, Major Legal Systems of the World, pp. 240-242. There is a useful short discussion of contemporary Yugoslav Marxism in McBride, The Philosophy o f Marx (1977), pp. 160-163. Also useful is PetroviE, " Socialism, Revolution and Violence," in The Socialist Idea (Kolakowski and Hampshire, eds., 1974), p. 96. The 1%3 Constitution is reproduced in Jan F. Triska, Constitutions of the Communist Party-States (1%8), p. 477. On decentralisation, see Hazard, Communists and their Law (1969), pp. 51-57. On which see Clegg, A New Approach T o Industrial Democracy (1963); Singleton and Topham, Workers' Control In Yugoslavia. This principle was recently abrogated as far as academics are concerned. The removal of the Praxis writers is described by McBride, op. cit., pp. 160-3. On which see The Basic Principles of the Constitution, Part I11 and Chloros, Yugoslav Civil Law (1970), Chaps. XII, XIII. Zdem, p. 166. 33-71 72 73 73' 74 76 760 Marxist Theories of Law and State concern was to restore the means of production to the workers. State capitalism, the system the Yugoslavs believe is operated in the U.S.S.R., is but the first stage of this process. Social property is the ultimate expression of this goal, in the Yugoslav view, because administration of the instruments and means of production is vested more directly in the hands of the workers. The Yugoslav concept of social property has been criticised by the Soviets as " petty-bourgeois anarcho-syndicalism," " an anarchic system of atomised self-governing co-operatives which would inevitably fall under the influence of market forces." TT Nonetheless, the growing move towards decentralisation in the Soviet Union can be seen as a response to Yugoslav developments and the acceptance that the Yugoslav system is worth consideration. Further, other East European states have fostered enterprise autonomy: notably Hungary and Czechoslovakia 79 during the so-called " Prague Spring." Social property is probably best explained, not as a property concept at all, but rather as a means of administration, a means to an end, the goal being the abolition of private property. In this case it is a negative, transitory concept. Ultimately, the Yugoslavs believe, the development of social selfgovernment will bring in its wake an end to law and state. Kardelj wrote in 1961: "The functions of the State as an instrument of compulsion will be diminishing in the proportion in which the producers themselves and the overall social-economic relations will be enabling people increasingly to govern themselves while requiring the form of State authority to regulate their mutual relations in lesser and lesser measure." Instead of law social control will be exercised by " an aggregate of adjusted moral principles and rules, a system which will find its support predominantly in the conscience of developed and free socialist citizens and in the automatic reaction of society against the acts of individuals who might want, not to destroy the whole system, because that will then no longer be possible, but only to violate certain rules of social behaviour." Our knowledge of law and legal institutions in China is not great.82 The Chinese have never had a legal tradition at least as that term is 76 77 18 1s 80 81 82 Quoted in Chloros, at p. 164. The Times, September 29, 1968, quoting from Izvestia. S e e Soviet Statutes and Decisions (1%6), No. 3, p. 52. See Ota Sik, Plan and Market Under Socialism (1%7). Quoted in Chloros, op. cit., p. 152, n. 5. Per Professor DordeviC, a leading jurist, quoted idem. For accounts and materials, see Van der Sprenkel, Legal Znstitutions in Manchu China (1962) and J . A. Cohen, The Criminal Process In The People's Republic of China 1949-1963 (1968). China understood in the West. Legality has no roots in Chinese civilisation. law being regarded as the sign of an imperfect society. Confucius, the fount of traditional Chinese wisdom, believed that societal cohesion was furthered by example and established morality, not by ~ ~distinction was drawn in Chinese regulation and p u n i ~ h m e n t .A culture between Li and Fa: Fa, law, is an unpleasant necessity; Li, an ethical system of proper behaviour is the more worthy and more useful method of social control. The dichotomy of Fa and Li is by no means ignored in contemporary Chinese jurisprudence, where Maoism can be seen as an inheritance of the concept of Li and where Fa is seen as a necessary instrument to strike at counterrevolutionary elements in Chinese society, such as landlords, nascent capitalists and other rotten elements.84 Since the Communist take-over, Chinese society has passed through a number of phases and law accordingly has had a number of vicissitudes. The pattern bears striking resemblance to Soviet legal history. In early days revolutionary legality was the by-word. There was extensive Party and government control over law. Justice was dispensed by ad hoc revolutionary people's tribunals. Cohen quotes a newspaper report of 1951 to illustrate the crudity of political control in the formative era of Chinese Communism. A large public meeting had been convened for the accusation of counterrevolutionaries. The Minister of Public Security " suggested " that 220 criminals be sentenced to death. The Mayor followed him, asking the crowd what should be done to these "vicious despots, bandits, traitors and special agents." " Shoot them!" the audience shouted. "Right, they should be shot." the Mayor replied. "Following this meeting we shall hand over the cases to the Military court . . . for conviction. Tomorrow, conviction; the next day execution." The crowd responded with wild applause and loud cheers. But, as in the case of the Soviet Union, early revolutionary fervour succumbed, about 1954, to outside pressures for respectability and to the need for stability and predictability. The Party strategists looked ahead to a period of " socialist construction" based on the Stalinist model. This "called for a regularised, sophisticated judicial system that would, at least in ~ ~ 1954 principle, preside over the law enforcement a p p a r a t ~ s . ' ' The Constitution resembled Stalin's 1936 Constitution. Not least remarkable is Article 78 of the Chinese Constitution: " people's courts shall conduct adjudication independently and shall be subject only 83 84 8s 86 On the Confucian attitude to law, see Schwartz in Cohen, idem, pp. 62-70. Cf. Victor Li, post, 801, where external and internal models are contrasted, the former corresponding roughly to Fa, the later to Li. See also Unger, Law in Modern Society (1976), pp. 86109, 231-234. In 82 Ham.L.R. %7, 977. Zdem, p. 978. Marxist Theories o f Law and State to the law." The essentially bourgeois ideal of judicial independence is thus articulated in the constitutions of both major Communist powers. For a time judicial decision making was " insulated from direct interference by other government agencies but with the question of Party interference in individual cases unsettled in both theory and practice." The Procuracy, for example, was given a major role in exercising supervision of the judicial process. Soviet materials were used as The virtues of legality were preached. But this came to an end with the Anti-Rightist Movement of 1957-58.90 The courts were humbled. Their powers were emasculated. Nonjudicial agencies began to handle cases : the public security force regained the unfettered capacity to impose serious sanctions such as " rehabilitation through labour " and " controlled production." O1 " The judiciary was subjected to ideological indoctrination. It was argued that law could not be a sufficient guidance to the courts as this was not yet complete, could not keep pace with rapid social changes and could not differentiate local circumstances. "Only the Party could provide the courts with up-to-date, comprehensive leadership demanded by their work." To one commentator it was clear that "the Party ha[d] in effect supplanted the judiciary as the instrument of law." The Soviets have been forthright in their condemnation of Chinese violations of " socialist legality." In 1964 Zzvestia declared: "Things have come to a strange pass when the secretary of a district Party committee ousts the judge, sits at the bench himself, and starts to decide cases."g4 But the Chinese revolution is thirty-two years younger than its Soviet counterpart, and such violations of legality were commonplace in the Soviet Union until the 1950's. Occasional excesses must not blind us to the fact that courts remained. Cohen's point that " resort to familiar institutions designated ' courts ' in order to carry out revolutionary measures minimises the shock of change, enhances the legitimacy 87 88 89 91 92 D3 94 C f . Soviet Constitution 1936, Art. 112. See Cohen, 82 Harv.L.R. 967, 1002. Cohen, idem, quotes the case of a railroad worker, Hung, whose trial for wunterrevolutionay activity was interrupted by the wurt secretary who noted that both the criminal code of the R.S.F.S.R. and a leading Soviet text on criminal law stated that circulation was an essential element in the crime of defamation. Hung was acquitted of counterrevolutionary activity (he had written on a piece of paper: " Mao Tse-Tung is Dead ") and defamation. He was criticised for his " backward opinion." See 82 Harv.L.R. 967, 968-987. For the effect of which on the legal system, see Cohen, The Criminal Process, op. cif., pp. 14-15. See also idem, pp. 468-473 for Chinese materials on the role of the defence lawyer at this time. See Cohen, op. cif.,p. 990. Idem, p. 992. Cf.ante, 736. See F. Schurmann, Ideology and Organisation In Communist China (1966), p. 180. Quoted in Cohen, op. cit., p. 971. China 763 of a new regime and produces a powerful instrument for educating the populace about the new values, goals and policies," D8 is welltaken, and abundantly evidenced by Soviet as well as Chinese experience. Of more recent developments in China we know even less. In particular little has filtered through of the impact of the "Cultural Revolution " of the late 1960's upon law and lawyers. Victor Li believes the early stages of this were characterised by a ' " drastic decline in the position of the formal legal system." The Red Guards took over legal work. The very need for law was called in question. Strengthening the legal system meant adopting wholesale feudal, capitalist, and revisionist legal systems. But " as the Cultural Revolution ran its course, a gradual effort was made to restore order. . . . Sometime round late 1967 or early 1968, the desire to smash the political-legal system began to give way to an attempt to strengthen this system and to rebuild it according to correct Maoist principles." The central authorities even began to use law to reassert their authority. The present position of law and legal institutions in China cannot be ascertained with certainty. There are indications that law is being strengthened once again: a new constitution is, for example, in the pipe-line. But, nevertheless, non-judicial tribunals do adjudicate and impose sanctions. The Cultural Revolution certainly has not strengthened legality : the injection of revolutionary fervour, the emphasis upon re-education and the "deification" of the Party Chairman, Mao Tse-Tung, demonstrate the Chinese belief in forms of social control other than law: Li has once again re-asserted itself. Our information about trends since the death of Mao is even more scanty.' HEGEL Philosophy of Right (Translated T. M . Knox) The Idea of the State The state in and by itself is the ethical whole, the actualization of freedom; and it is an absolute end of reason that freedom should be Idem, pp. 1001-1002. C f . Berman's comments on " parental law," ante, 748, and post, 797. 06 See Joan Robinson, The Cultural Revolution In China (1969). 97 (1970) China Quarterly, Part 4, p. 66. And post, 801. 98 Post, 805. 9 9 Post, 807. 1 One interesting recent account by a Western observer is Pepinsky, Crime and Conflict '(1976). See also the new Constitution, post, 813 and references on 814. 95 764 Marxist Theories of Law and State actual. The state is mind on earth and consciously realizing itself there. In nature, on the other hand, mind actualizes itself only as its own other, as mind asleep. Only when it is present in consciousness, when it knows itself as a really existent object, is it the state. In considering freedom, the starting-point must be not individuality, bhe single self-cmsciomess, but only the essence of s e l f c o n s c i o ~ e s s ;fog- whether man knows it or not, this essence is externally realized as a self+wbsistent power h which single individuals are only moments. The march of God in the world, that is what the state is. The bask of the state is the porwer of reason actualizing itself as will. In considering the Idea of the state, we must not have our eyes on particular states or on particular isnstitutions. Instead we must oonsider the Idea, this actual God, by itself. On some principle or other, any state may )be shown to be bad, this or that defect may be found in it; and yet, at any rate if cme of the mature states of our epoch is in question, it has in it the moments essential to the existence of the state. But since it is easier to find defects than to understand the aflkmative, we may readlily fall into bhe mistake of looking at isdated aspects olf the state and so forgetting its inward organic life. The state is no ideal work of art; it stands on m t h and so in the sphere of caprice, chance, and error, and bad behaviour may disfigure it in many respects. But the ugliest of men, or a criminal, or an invalid, or a cripple, is still always a living man. The affirmative, life, subsists despite his defects, and it is this affirmative factor which is our theme here. The Particular State The state in its actuality is essentially an individual state, and beyond that a particular state. Individuality is to be distinguished from particularity. The former is a moment in the very Idea of the state, while the latter belongs to history. States as such are independent of one another, and therefore their relation to one another can only be an external one, so that there must be a third thing standing above them to bind them together. Now this third thing is the mind which gives itself actuality in world-history and is the absolute judge of states. Several states may form an alliance to be a sort of court with jurisdiction over others, there may be confederations of states, like the Holy Alliance for example, but these are always relative only and restricted, like 'perpetual peace '. The one and only absolute judge, which makes itself authoritative against the particular and at all times, is the absolute mind which manifests itself in the history of the world as the universal and as the genus there operative. [P. 2791 K . MARX Critique o f Hegel's Philosophy o f Right Since it is of the essence of bureaucracy to be the " state as formalism," so its aim implies this also. The real aim of the state thus appears to bureaucracy as an aim against the state. The spirit of bureaucracy is therefore the " formal spirit of the state." Thus it makes the " formal 2 [From McLellan, Early Texts, p. 69.1 K. Marx 765 spirit of the state " or the real lack of spirit by the state into a categorical imperative. Bureaucracy counts in its own eyes as the final aim of the state. Because it makes its " formal " ends into its content, it ensten into conflict everywhere with "real" ends. It is therefore compelled to claim the fbrmal for its content and its content as the formal. The aims of the state are transformed into the aims of the bureaux and the aims of the bureaux into the aims of the state. Bureaucracy is a circle from which no one can escape. Its hierarchy is a hierarchy of knowledge. The apex entrusts the lower circles with insight into the individual while the lower circles leave insight into the universal to the apex, so they deceive each other reciprocally. Bureaucracy constitutes an imaginary state beside the real state and is the spiritualism of the state. Thus every object has a dual meaning, a real one and a bureaucratic one, just a3 knowledge is dual, a real and a bureaucratic (it is the same with the will). But the real thing is treated according to its bureaucratic essence, its otherwrldly spiritual essence. Bureaucracy holds in its possession rhe essence of the state, the spiritual essence of society, it is its private propel?ty. The general spirit of bureaucracy is secret, mystery, safeguarded inside itself by hierarchy and outside by its nature as a closed corporation. Thus public political spirit and also political mentality appear to bureaucracy as a betrayal of its secret. The principle of its knowledge is therefore autlhority, and its mentality is the idolatry of authority. But within bureaucracy the spiritualism turns into a crass materialism, the materialism of passive obedience, faith in authority, the mechanism of fixed and formal behaviour, fixed principles, attitudes, traditions, as far as the individual bureaucrat is concerned, the aim of the state becomes his private aim, in the form d a race for higher posts, of careerism. K. MARX Preface to Contribution to Critique of Political Economy " ( 1859) I was led by my studies to the oonclusion that legal relations as well as forms of State could neither be understood by themselves, nor explained by the so-called general progress of the human mind, but ;that they are rooted in the material oonditions of life, whiuh are summed up by Hegel after the fashion of the English and French writers of the eightemth century under the name civil society, and that the anatomy of civil society is to be sought in political economy. The study of the latter which I had begun in Paris, I oontinued in Brussels where I had emigrated on account of an expulsion order issued by M. Guizot. The general condwion at which I arrived and which, once reached, continued to serve as the guiding thread in my studies, may be formulated briefly as follows: In the social production which men carry on they enter into definite relations that are indispensable and independent of their will; 3 [This passage and that from German Ideology are translated by T. B. Bottomore, and taken from Bottomore and Rubel, Karl Marx, Selected Wrltings In Sociology and Social Philosophy (1961).1 766 Marxist Theories o f Law and State these relations d production correspond to a definite stage of development of their material powers of production. The totality of these relations of Droduction constitutes the economic structure of w i e t y y t h e real founhation, on which legal and political superstructures arise and to which definite forms of social consciousness corres~ond. The mode of production of material life determines the general chdracter of the social, political, and spiritual processes of life. It is not the mnsciousness of men that determines their being, but, on the contrary, their social W i g determines their consciousness. At a certain stage af their development, the material forces of production in society come in conflict with the existing relations of production, or-what is but a legal expression for the same thing-with the property relatim within which they had been at work before. From forms of development of the forces of production these relations turn into their fetters. Then occurs a period of social revolution. With the change of the economic foundation the entire immense superstructure is more or lass rapidly transformed. In considering such transformations, the distinction should always be made between the material transformation of the eoonomic conditions of production whioh can be determined with the precision of natuml science, and the legal, political, religious, aesthetic or ph~ilosophical-in short, ideological-forms in which men become consoious of this conflict and fight it out. Just as our opinion of an individual is not baised on what he thinks of himself, so can we not judge of such a period of transformation by its own oonsciousness; on the contrav, this consciousness must rather be explained from the contradictions of material life, from the existing confljict between the social forces of production and the relations of production. No social order ever disappears bdme all the productive forces for which there is room in it have been developed; and new, higher relations of production never appear before the material conditions of their existence have matured in the womb of the old society. Therefore, mankind always sets itself only such problems as it can solve; since, on closer examination, it will always be found that the problem itself arises cmly when bhe material conditions necawry for its solution already exist or are at least in the procass of formation. In broad outline we can designate the Asiatic, the ancient, the feudal, and the modern bourgeois modes of production as progressive epochs in the economic formation of society. The bourgeois relations of produ~tionare the last antagonistic form of the social p r o w of production; not in the sense of individual antagcmisrns, but of conflict arising from conditions surrounding the life of individuals in society. At the same time the productive forces developing in the womb of bourgeois sooiety create the material conditions for the solution of bhat antagonism. With this social formation, therefore, the prehistory d human society comes to an end. [PP. 67-69] K. MARX The Holy Family 3a (1845) The recognition of the Rights of Man by the modern state means nothing more than did the recognition of slavery by the state of old. 3a [From McLellan, The Thought of Marx, P. 190.1 K. Marx In the same way, in other words, as the state of old had slavery as its natural basis, the modern state has civil society and the man of civil swiety, i.e. the independent man depending on other men only by private interest and unconscious natural necessity, the slave of earning his living and of his own as well as other men's selfish need. The modern state has recognised this as its natural basis in the universal rights of man. It did not create it. As it was the product of civil society driven beyond its bounds by its own development, it now recognises the womb it was born of and its basis by the declaration of the rights of man. K. M A R X German Ideology Since the State is the form in whioh the individuals of a ruling class assert their common itnterests, and in which the whole civil society of an epoch is epitomized, it follows bhat the State acts as an intermediary for all community institutions, and that these institutions receive a political form. Hence the illusion that law is based on will, and indeed on will divorced from its m 1 basis-on free will. Similarly, law is in its turn reduced to the actual laws. Civil law develops concurrently with private proparty out of the disintegration of the natural community. Among the Romans the development of private property and civil law had no fmther industrial and commercial consequences, because their whole m& of production remained unchanged. Among modem peoples, where the feudal community was disintegrated by industry and trade, a new phase began wibh the rise of private property and civil law, which was capable of further developmmt. The first town which carried on an extensive trade in the Middle Ages, Amalfi, also developed at the same time maritime law. As scroll as industry and trade developed private property funther, fimt in Italy and later in other countries, the perfected Roman civil law was at once taken up again and raised to authority. When, subsequently, the bourgeoisie had acquired so much power that the princes took up their interests in order to overthrow the feudal nobility by means of the bourgeoisie, there began in all countries-in France in the sixteenth century-the real development of law, which in all oountries except England proceeded on the basis of the Roman Code. Even in England, Roman legal principles had to be introduced for the further development of civil law (especially in the case of pemonal movable property). It should not be forgotten that law has not, any more than religion, an independent ,history. [pp. 228-2291 K. M A R X German Ideology 3b Out of this very contradiction between the interest of the individual and that of the community the latter takes an independent form as the 3b [From McLellan, The Thought of Marx, p. 191.1 768 Marxist Theories of Law and State State, divorced from the real interests of individual and community, and at the same time as an illusory communal life, always based, however, on the real ties existing in every family and tribal conglomerationsuch as flesh and blood, language, division of labour on a larger scale, and other interests-and especially, as we shall enlarge upon later, on the classes, already determined by the division of labour, which in every such mass of men separate out, and of which one dominates all the others. It follows from this that all struggles within the State, the struggle between democracy, aristocracy, and monarchy, the struggle for the franchise, etc., etc., are merely the illusory forms in which the real struggles of the different classes are fought out among one another. Ep. 1913 If power is taken as the basis of right, as Hobbes, etc., do, then right, law, etc., are merely the symptom, the expression of other relations upon which State power rests. The material life of individuals, which by no means depend merely on their " will," their mode of production and form of intercourse, which mutually determine each &her-this is the real basis of the State and remains so at all the stages at which division of labour and private property are still necessary, quite independently of the will of individuals. These actual relations are in no way created by the State power; on the contrary they are the power creating it. The individuals who rule in these conditions, besides having to constitute their power in the form of the State, have to give their will, which is determined by these definite conditions, a universal expression as the will of the State, as law-an expression whose content is always determined by the relations of this class, as the civil and criminal law demonstrates in the clearest possible way. [pp. 191-1921 K. MARX Preface to The Critique of Political Economy 3 C (1859) At a certain stage of their development, the material productive forces of society come in conflict with the existing relations of production, m-what is but a legal expression for the same thing-with the property relations within which they have been at work hitherto. From forms of development of the productive forces these relations turn into their fetters. Then begins an epoch of social revolution. With the change of the economic foundation the entire immense superstructure is more or less rapidly transformed. In considering such tranformations a distinction should always be made between the material transformation of the economic conditions of production, which can be determined with the precision of natural science, and the legal, political, religious, aesthetic or philosophical forms in which men become conscious of this conflict and fight it out. 3C [From McLellan, The Thought of Marx, p. 208.1 K. Marx K. M A R X The Civil War in France (1871) The Paris Commune was, of course, to serve as a model to all the great industrial centres of France. The communal rkgime once established in Paris and the secondary centres, the old centralised Government would in the provinces, too, have to give way to the self-government of the producers. In a rough sketch of national organisation which the Commune had no time to develop, it states clearly that the Commune was to be the political form of even the smallest country hamlet, and that in the rural districts the standing army was to be replaced by a national militia, with an extremely short term of service. The rural communes of every district were to administer their common affairs by an assembly of delegates in the central town, and these district assemblies were again to send deputies to the National Delegation in Paris, each delegate to be at any time revocable and bound by .the mandat impe'ratif (formal instructions) of his constituents. The few but important functions which still would remain for a central government were not t o be suppressed, as has been intentionally misstated, but were to be discharged by Communal, and therefore strictly responsible agents. The unity of the nation was not t o be broken, but, on the contrary, to be organised by the Communal Constitution and t o become a reality by the destruction of the State power which claimed to be the embodiment of that unity independent of, and superior to, the national Itself, from which it was but a parasitic excrescence. While the merely repressive organs of the old governmental power were t o be amputated, its legitimate functions were to be wrested from an authority usurping pre-eminence over society itself, and restored to the responsible agents of society. Instead of deciding once in three or six years which member of the ruling class was to misrepresent the people in Parliament, universal suffrage was to serve the people, constituted in Communes, as individual suffrage serves every other employer in the search for the workmen and managers in his business. And it is well known that companies, like individuals, in matters of real business generally know how to put the right man in the right place, and, if they for once make a mistake, to redress it promptly. On the other hand, nothing could be more foreign to the spirit of the Commune than to supersede universal suffrage by hierarchic investiture. K . MARX and F.'ENGELS The Manifesto o f the Communist Party (1 848) 4a These measures 4h will of course be different in different countries. Nevertheless in the most advanced countries, the following will be pretty generally applicable. [From McLellan, The Thought of Marx, pp. 193-194.1 [From McLellan, The Thought o f Marx, pp. 219-220.1 4b [TO be undertaken by the proletarian government on its takeover.] 4 4a 770 Marxist Theories o f Law and State 1. Abolition of property in land and application of all rents of land to public purposes. 2. A heavy progressive or graduated income tax. 3. Abolition of all right of inheritance. 4. Confiscation of the property of all emigrants and rebels. 5. Centralisation of credit in the hands of the State, by means of a national bank with State capital and an exclusive monopoly. 6. Centralisation of the means of communication and transport in the hands of the State. 7. Extension of factories and instruments of production owned by the State; the bringing into cultivation of waste-lands, and the improvement of the soil generally in accordance with a common plan. 8. Equal liability of all to labour. Establishment of industrial armies, especially for agriculture. 9. Combination of agriculture with manufacturing industries; gradual abolition of the distinction between town and country, by a more equable distribution of the population over the country. 10. Free education for all children in public schools. Abolition of children's factory labour in its present form. Combination of education with industrial production, etc., etc. When, in the course of development, class distinctions have disappeared, and all production has been concentrated in the hands of a vast association of the whole nation, the public power will lose its political character. Political power, properly so called, is merely the organised power of one class for oppressing another. If the proletariat during its contest with the bourgeoisie is compelled, by the force of circumstances, to organise itself as a class, if, by means of a revolution, it makes itself the ruling class, and, as such, sweeps away by force the old conditions of production, then it will, along with these conditions, have swept away the conditions for the existence of class antagonisms and of classes generally, and will thereby have abolished its own supremacy as a class. In place of the old bourgeois society, with its classes and class antagonisms, we shall have an association, in which the free development of each is the condition for the free development of all. K. MARX Critique of the Gotha Programme 4C What we have t o deal with here is a communist society, not as it has developed on its own foundations, but, on the contrary, just as it emerges from capitalist society; which is thus in every respect, economically, morally and intellectually, still stamped with the birth marks of the old society from whose womb it emerges. Accordingly, the individual producer receives back from society-after the deductions have been made--exactly what he gives to it. What he has given to it is his individual quantum of labour. For example, the social working day consists of the sum of the individual hours of work; the individual 4c [From McLellan, The T h o u a t o f Marx, pp. 222-224.1 K. Marx labour time of the individual producer is the part of the social working day contributed by him, his share in it. He receives a certificate from society that he has furnished such and such an amount of labour (after deducting his labour for the common funds), and with this certificate he draws from the social stock of means of consumption as much as wsts the same amount of labour. The same amount of labour which he has given to society in one form he receives back in another. Here obviously the same principle prevails as that which regulates the exchange of commodities, as far as this exchange of equal values. Content and form are changed, because under the altered circumstances no one can give anything except his labour, and because, on the other hand, nothing can pass to the ownership of individuals except individual means of consumption. But, as far as the distribution of the latter among the individual producers is concerned, the same principle prevails as in the exchange of commodity equivalents: a given amount of labour in one form is exchanged for an equal amount of labour in another form. Hence, equal right here is still in principle-bourgeois right, although principle and practice are no bnger at loggerheads, while the exchange of equivalents in commodity exchange only exists on the average and not in the individual case. In spite of this advance, this equal right is still constantly stigmatised by a bourgeois limitation. The right of the producers is proportional to the labour they supply; the equality consists in the fact that measurement is made with an equal standard, labour. But one man is superior to another physically or mentally and so supplies more labour in the same time, or can labour for a longer time; and labour, to serve as a measure, must be defined by its duration or intensity, otherwise it ceases to be a standard of measurement. This equal right is an unequal right for unequal labour. It recognises no class differences, because everyone is only a worker like everyone else; but it tacitly recognises unequal individual endowment and thus productive capacity as natural privileges. I t is, therefore, a right of inequality, in its content, like every right. Right by its very nature can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals if they were not unequal) are measurable only by an equal standard in so far as they are brought under an equal point of view, are taken from one definite side only, for instance, in the present case, are regarded only as workers and nothing more is seen in them, everything else being ignored. Further, one worker is married, another not; one has more children than another, and so on and so forth. Thus, wimth an equal performance of labour, and hence an equal share in the social consumption fund, one will in fact receive more than another, one will be richer than another, and so on. To avoid all these defects, right instead of being equal would have to be unequal. But these defects are ineviltable in the first phase of communist society as it is when it has just emerged after prolonged birth pangs from capitalist society. Right can never be higher than the economic structure of society and its cultuwl development conditioned thereby. 772 Marxist Theories of Law and State In a higher phase of communist society, after the enslaving subordination of the individual to the division of labour, and therewith also the antithesis between mental and physical labour, has vanished; after labour has become not only a means of life but life's prime want; after the productive forces have also increased with the all-round development of the individual, and all the springs of co-operation wealth flow more abundantly--only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs! F . ENGELS The Origin of the Family, Private Property and the State As the state arose from the need to hold class antagonisms in check, but as it arose, at the same time, in the midst of the conflict of these classes, it is, as a rule, the state of the most powerful, economically dominant class, which, through the medium of the state, becomes also the politically dominant class, and thus acquires new means of holding down and exploiting the oppressed class. Thus the state of antiquity was above all the state of the slaveowners for the purpose of holding down the slaves, as the feudal state was the organ of the nobility for holding down the peasant serfs and bondsmen, and the modern representative state is an instrument of exploitation of wage labour by capital. By way of exception, however, periods occur in which the warring classes balance each other so nearly that the state power, as ostensible mediator, acquires, for the moment, a certain degree of independence of both. Such was the absolute monarohy of the seventeenth and eighteenth centuries, which held the balance between the nobility and the class of burghers; such was the Snapartism of the first, and still more of the second French empire, which played off the proletariat against the bourgeoisie and the bourgeoisie against the proletariat. The latest performance of this kind, in which ruler and ruled appear equally ridiculous, is the new German Empire of the Bismarck nation: here capitalists and workers are balanced against each other and equally cheated for the benefit of the impoverished Prussian cabbage Junkers. In most of the historical states the rights of citizens are, besides, apportioned according to their wealth, thus directly expressing the fact that the state is an organisation of the possessing class for its protection against the non-possessing class. It was so already in the Athenian and Roman classification according to property. It was so in the medieval feudal state, in which the alignment of political power was in conformity with the amount of land owned. It is seen in the electoral qualifications of the modern representative states. Yet this political recognition of property distinctions is by no means essential. On the contrary, it marks a low stage of state development. The highest form of the state, the democratic republic, which under our madern conditions of society is more and more becoming an inevitable necessity, and is the form of state in which alone the last decisive struggle between proletariat and bourgeoisie can be fought out-the democratic republic officially knows 5 [From L. Feuer, Marx and Engels, Basic Writings o n Politics and Philosophy, pp. 43 1-433.) F. Engels nothing any more of property distinctions. In it wealth exercises its power indirectly, but all the more surely. On the one hand, in the form of the direct corruption of officials, of which America provides the classical example; on the other hand, in the form of an alliance between government and stock exchange, which becomes the easier to achieve the more the public debt increases and the more joint-stock companies concentrate in their hands not only transport but also production itself, using the stock exchange as their centre. The latest French republic, as well as the United States, is a striking example of this; and good old Switzerland has contributed its share in this field. But that a democratic republic is not essential for this fraternal alliance between government and stock exchange is proved by England and also by the new German Empire, where one cannot tell who was elevated more by universal suffrage, Bismarck or Bleichroder. And lastly, the possessing class rules directly through the medium of universal suffrage. As long as the oppressed class, in our case therefore the proletariat, is not yet ripe to emancipate itself, it will in its majority regard the existing order of society as the only one possible and, politically, will form the tail of the capitalist class, its extreme left wing. To the extent, however, that this class matures for its self-emancipation, it constitutes itself as its own party and elects its own representatives, and not those of the capitalists. Thus universal suffrage is the gauge of the maturity of the working class. It cannot and never will be anything more in the present-day state, but that is sufficient. On the day the thermometer of universal suffrage registers boiling point among the workers, both they and the capitalists will know what to do. F. ENGELS Anti-Diihring (Quoted and translated in M. Oakshott, Social and Political Doctrines o f Contemporary Europe) The State The state, therefore, has not existed from all eternity. There have been societies which managed without it, which had no conception of the state and state power. At a certain stage of economic development, which was necessarily bound up with the cleavage of society into classes, the state became a necessity owing to this cleavage. We are now rapidly approaching a stage in the development of production at which the existence of these classes has not only ceased to be a necessity, but is becoming a positive hindrance to production. They will fall as inevitably as they arose at an earlier stage. Along with them, the state will inevitably fall. The society that organizes production anew on the basis of the free and equal association of the producers will put the whole state machine where it will then belong: in the museum of antiquities, side by side with the spinning-wheel and the bronze axe. [pp. 12P-1301 " Withering Away " o f the State The proletarian seizes the state power and transforms the means of production in the first instance into state property. But in doing this, Marxist Theories of Law and State it puts an end to itself as the proletariat, it puts an end to all class differences and class antagonisms, it puts an end also to the state as the state. Former society, moving in class antagonisms, had need of the state, that is, an organization of the exploiting class, at each period for the maintenance of its external conditions of production; that is, therefore, for the forcible holding down of the exploited class in the conditions of oppression (slavery, villeinage or serfdom, wage-labour) determined by the existing mode of production. The state was the official representative of society as a whole, its embodiment in a visible corporation; but it was this only in so far as it was the state of that class which itself, in its epoch, represented society as a whole: in ancient times, the state of the slave-owning citizens; in the Middle Ages, of the feudal nobility; in our epoch, of the bourgeoisie. When ultimately it becomes really representative of society as a whole, it makes itself superfluous. As soon as there is no longer any class of society to be held in subjection; as soon as, along with class domination and the struggle for individual existence based on the former anarchy of production, the collisions and excesses arising from these have also been abolished, there is nothing more to be repressed, which would make a special repressive force, a state, necessary. The first act in which the state really comes forward as the representative of society 'as a whole-the taking possession of the means of production in the name of society-is at the same time its last independent act as a state. The interference of the state power in social relations becomes superfluous in one sphere after another, and then ceases of itself. The government of persons is replaced by the administration of things and the direction of the process of production. The state is not " abolished ", it withers away. It is from this standpoint that we must appraise the its justification at times for agitaphrase " free people's state "-both tional purposes, and its ultimate scientific inadequacy-and also the demand of the so-called anarchists that the state should be abolished overnight. [pp. 130-1311 LENIN State and Revolution (Quoted and translated in M. Oakshott, op. cit.) It may be said without fear of error that of this argument of Engels', which is so singularly rich in ideas, only one point has become an integral part of socialist thought among modern Socialist Parties, namely, that according to Marx the state "withers away "-as distinct from the anarchist doctrine of the " abolition of the state ". To emasculate Marxism in such a manner is to reduce it to opportunism for such an "interpretation" only leaves the hazy conception of a slow, even, gradual change, of absence of leaps and storms, of absence of revolution. The current, widespread, mass, if one ,may say so, conception of the " withering away" of the state undoubtedly means the slurring over, if not the repudiation, of revolution. Such an "interpretation" is the crudest distortion of Marxism, advantageous only to the bourgeoisie; in point of theory, it is based on a disregard for the most important circumstances and considerations pointed out, for example, in the " summary" of Engels' argument we have just quoted in full. In the first place, Engels at the very outset of his argument says that, in assuming state power, the proletariat by that "puts an end to the state . . . as the state ". It is not " good form " to ponder over what this means. Generally, it is either ignored altogether, or it is considered to be a piece of " Hegelian weakness " on Engels' part. As a matter of fact, however, these words briefly express the experience of one of the great proletarian revolutions, the Paris Commune of 1871. As a matter of fact, Engels speaks here of the "abolition" of the bourgeois state by the proletarian revolution, while the words about its withering away refer to the remnants of the piaoletarian state after thd socialist revolution. According to Engels the bourgeois state does not '' wither away ", but is " put an end to " by the proletariat in the course of the revolution. What withers away after the revolution is the proletarian state or senior-state. Secondly, the state is a " special repressive force Engels gives this splendid and extremely profound definition here with complete lucidity. And from it follows that the " special repressive force" for the mppression of the proletariat by the bou~geoisie,for the suppression of the millions of toilers by a handful of the rioh, must be superseded by a " speoial represrive force " for the supprwion of the bourgeoisie by the proletariat (the dictatorship of the proletariat). This is prmisely what is meant by putting an end to " the state as the state This is precisely the " act " of taking possession of the meam of production in the name of society. And it is obvious that such a substitution of one (proletarian) " special repressive force " for another Cburgeois) " special repressive force " cannat possibly take place in the f m of " withering away Thirdly, in regard to the state "withering away ", and the even more expressive and colourful "ceasing of itself ", Engels refers quite clearly and definitely to the period after the state has "taken posswion of the means of production in the name of society ", that is, after the socialist revolution. We all know that the political form of the " state" at that time is the most complete democracy. But it never enters the head of any of the opportunists who shamelessly distort Marxism that Engels here speaks of democracy " withering away ", or " ceasing of itself This seems very sltrange at first sight; but it is " unintelligible " only to those who have not pondered over the fact that democracy is also a state and that, consequently, democracy will also disappear when the state disappears. Revolution alone can " put an end " to the bourgeois state. The state in general, i.e. most complete democracy, can only " wither away Fourthly, after formulating his famous proposition that "the state withers away ", Engels at once explains concretely that this proposition is directed equally against the opportunists and the anarchists. In doing this, however, Engels puts in the forefront the conclusion deduced from the proposition, the " state wibhers away ", which is directed against the opportunists. One can wager that out of every 10,000 persons who have read or heard about the " withering away " of the state, 9,990 do not know, or do not remember, that Engels did not direct the conclusions he deduced ". ". ". ". ". Marxist Theories of Law and State from this propsition against the anarchists alone. Of the remaining ten, probably nine d o not know the meaning of " free people's state" or why an attack m this watchword contains an attack on the opportunists. The conolusion drawn againslt the anarchists has been repeated thousands of times, vulgarized, dinned into people's heads in the crude& fashion and h a acquired the strength of a prejudice; whereas the conclusion drawn against the opportunists has been hushed up and '' forgotten "! Fifthly, this very same work of Engels', of which everyone remembers the argument about the " withering away " of the state, also contains a disquisition on the significance of violent revolution. Engels' historical analysis of its role becomes a veritable panegyric on violent revolution. This " n o one rernemtbm "; it is not good form in modern Socialist Parties to talk o r even think about the importance of this idea, and it plays n o part whatever in their daily projxiganda and agitation among the masses. And yet, it is inseparably bound up with the "withering away " of the state into one harmonious whole. . . [pp. 131-1331 ... ... K . RENNER The Institutions o f Private Law and their Social Functions (1949) 5b The Economic and Social Functions of the Legal Institutions Our enquiry, then, is not concerned with positive legal analysis, the systematic exposition of legal institutions, a field which has been amply covered by others. Nor are we investigating the problems of the creation of law. We shall refrain from analysing the questions as t o how the norms originate which make up the legal institutions, how a legal norm grows from its economic background, and what are the economic causes bf the creation of legal norms. The field, it is true, has not been cultivated, but we shall keep away from it. We propose to examine only the economic and social effect of the valid norm as it exists, so long as the norm does not change. Those acquainted with socialist literature will at once perceive that we have taken as our subject the mutual relations between law and economics. The traditional Marxist school conceives the economic relations as the substructure and the legal institutions as the superstructure. " Substructure " and " superstructure " are metaphors, borrowed from architecture; it is obvious that they serve only to illustrate the connection, not to define it in exact terms. This superstructure, according to Marx's well-known formula,5c comprises [For an account of the evolution of Lenin's thought on state and law, see E. H. Carr, The Bolshevik Revolution, Part I (Penguin, 1966), pp. 238-256.1 5b [Translated with Introduction by 0. Kahn-Freund. On Renner see also G. Sawer, Law in Society, pp. 178-181.1 sc Preface to Marx's Critique of Political Economics, transl. by N . I. Stone, N.Y. London. 1904. " The sum total of these relations of oroduction constitutes the economic structure of society-the real foundations bn which rise legal and political superstructures." Friedrich Engels, Preface to Marx's Der achtzehnte Brumaire, 3rd edition, Hamburg, 1885 : " The law according to which all struggle, whether in the political, religious, philosophical or any other ideological field, is in fact only the more or less clear expression of struggles among social classes whose existence K. Renner 777 not only law but also ethics and culture, in fact every ideology. This terminology must therefore apply t o many facts other than those relevant to the law, whose structures are completely different and must be separately defined. The relation between the philosophy of an age and the economic substructure of that age is obviously determined by key concepts quite different from those of legal norm, exercise of a right, and the like. We must desist, therefore, from attempting to give a general exposition of the Marxist concept of superstructure. We must recognise that each of these social phenomena, which in their general aspects are quite aptly illustrated by Marx's metaphor, requires a specific investigation. We attempt this investigation in regard to law. Our previous explanations have made it clear that the relation is not merely one of cause and effect. It would be no solution of our problem to say that the economic structure generates the norm. Such an assumption could apply only t o one of the fields of learning, that concerned with the creation of laws. Yet the mechanism by which economy as the causal factor brings about the effect of law, is obscure and unexplored. It probably would not become intelligible by any ultimate abstraction, such as the application of the primitive categories of cause and effect. . . . In the second province, that of positive legal analysis, the concepts of cause and effect generally mean little; the main concern here is obviously that of motive, means and ends, and the appropriate method of explanation is teleological, not causal. If we were to describe the superstructure of law in the third field (that of the economic and social efficacy of the norms) as exclusively the effect of the social and economic substructure, our conclusions would be proved to be absurd by the very facts to which they refer. I t is mere platitude to say that laws can influence economy sufficiently to change it and can therefore be considered as causes of economic results. Marx, of course, was the last person to deny this. "The influence of laws upon the conservation of the relations of distribution and consequently their influence upon production must be specifically determined."5d Laws are made with the intention of producing economic results, and as a rule they achieve this effect. Social life is not so simple that we can grasp it, open it and reveal its kernel like a nut, by placing it between the two arms of a nutcracker called cause and effect. Although he was much occupied with legal problems, Marx never found time to "determine the influence of the laws" (as above); yet he saw the problem clearly as is proved in particular by the following methodological hint: "The really difficult point to be discussed here, however, is how the relations of production as relations of the law enter into a disparate development. An instance is Roman civil law in its relations t o modem production." We make use of this hint in the formulation of our problem: (1) Law which continues unchanged in relation to changing economic conditions; (2) Changed economic conditions in relation to the new norms and the new law. Our study, however, will be concerned with the first part of the problem only. and hence wltisions are again conditioned by the degree of development of their economic position, their methods of production and their manner of exchange dependent thereon." And many other passages. 5d Neue Zeit, p. 744. 6 Ibid., p. 779. Marxist Theories o f Law and State We start with a definite legal system based upon a definite economic foundation as it appears at a given moment of history. All economic institutions are at the same time institutions of the law. All economic activities are either, like sale and purchase, acts-in-the-law, or, like farming one's own land, the mere exercise of a right; or if neither, like the work of a mill-hand at his loom, even though they are extra-legal activities, they are nevertheless performed within definite legal conditions. We see that the act-in-the-law and the economic action are not identical. The process of eating has a physiological, an economic and a volitional aspect but it is not an act of will with the qualities of an act-in-the-law. Yet the conditions under which it takes place are determined t o some extent by the law. The circulation of goods in a capitalist society is mediated by sale and purchase and by ancillary contracts: these are transactions for which the law of obligations provides various forms. Production, however, is not in itself an act-in-the-law. It can be the mere exercise of the righ't of ownership, as in the case of the peasant. In the capitalist factory, however, the legal aspect of production is more complicated. For the capitalist, production is the exercise of his right of ownership, since factory and machines are his property. For the worker it is the fulfilment of a legal obligation which has been established by the contract of employment. In so far as it is the latter, it is an act-in-the-law; in so far as it is the former, it is the mere exercise of a right. Thus a simple economic category is equivalent to a combination of various legal categories, there is no point-to-point correspondence. A number of distinct legal institutions serves a single economic process. They play a part which I will call their economic function. Yet every economic process which in theory is an isolated unit is only part of the whole process of social production and reproduction. If the economic function is related to this whole, it becomes the social function of the legal institution. A comprehensive exposition of the functions fulfilled by the legal institutions at every stage of the economic process has been given in Das Kapital, Marx's principal work. No other investigator, either before or after him, was more aware of their importance for even the most minute details of this process. We shall see that no other economic theory gives so much insight into the connections between law and economics. Marx's predecessors and successors either refused to recognise the problem or could not do it full justice. If we regard a social order as static and confine our attention to a certain moment of history, then the legal norms and the economic process merely appear as mutually conditioned and subservient to one another. Within the economic structure economic process and legal norm appear as the same thing: the former seen as an external, technico-natural event, the latter as an inherent relation of wills, seen from the point of view of individual will-formation. We call the external, technico-natural process the substratum of the norm. This sounds very plausible. But we can no more study the laws of gravity from a stone in a state of rest than we can learn the art of cooking from the cook who was pricked by the Sleeping Beauty's spindle. All K. Renner 779 that we can observe is that in a state of rest legal and economic institutions, though not identical, are but two aspects of the same thing, inextricably interwoven. We must define and describe this CO-existence. This observation, however, only stresses the fact that they are mutually determined. We must study the process in its historical sequence, the gradual transition of a social order from a given stage to the next. The inherent laws of development can only be revealed if the events are seen in motion, in the historic sequence of economic and legal sytems. If we examine two consecutive periods, chosen at random, we may obtain results which, though they apply to these particular periods of transition, cannot claim to be generally valid. To decide the function of the law in general, we have to study inductively all social orders as they appear in the course of history, from the most primitive to the most highly developed. By this method we obtain the general categories of the social order and at the same time the general functions of the law. This procedure is legitimate in spite of the fact that every individual stage of development has its specific nature and is subject to its peculiar laws. Marx frequently refers to general principles of this kind, declaring them to be justified. "All periods of production have certain characteristics in common . . . production in general is an abstract concept, but a reasonable one in that it really establishes and emphasizes what is common, and thus saves us repetition." " . . . a unilty brought about by the fact that the subject, mankind, and the object, nature, are always the same." Yet Mam disparages these general abstractions in economics often enough to fortify our objections against them. One of his reasons was the tendency of economists, which still exists, to regard the categories of the capitalist order as eternal and sacrosanct. Another reason lies in the limitations of his own task, viz. to explore and describe one individual period only. " Yet it is the very difference from what is general and common which is the essential element of a particular development." If Marx had concentrated upon the definition of peculiar characteristics of one epoch as he found them, he might have given a description in the manner of a research student, but the laws of social development would have remained hidden from him. Marx, however, seeks to explain the specific historical phenomenon alongside with previous individual forms as being merely an individual manifestation of the general principle. In this way he discovers inherent connecticms within the development. The following may serve as an example: "Surplus labour is a general social phenomenon as soon as the productivity of human labour power exceeds the immediate needs of life, but its appearance in the feudal epoch differs from that in the capitalist epoch-in the former it is villeinage, in the latter surplus value." We cannot dispense in our enquiry with a general survey of the functions performed by the legal institutions. Every individual function which is historically determined is correlated to the whole and can only be clearly understood within its context. A diagrammatic exposition of the functions at least clears the field. A concrete detail cannot be demonstrated otherwise than by relating it to the general whole. " A 6.8 Neue Zeit, Vol. 21, p. 712. 780 Marxist Theories of Law and State phenomenon is concrete because it integrates various determining factors, because it is a unity of multiplicity. If it is thought out, it appears as the product and result of an integrating process.". . . [PP. 55-60] . . . I maintain that Karl Marx deliberately set out to observe and describe each and every phenomenon of the capitalist epoch, correlating these to a continuous development of human society on the basis of an inherited legal system, rigid, retarded and fossilised. Those who expect from his critique of political economy a guide for economic behaviour, or an analysis of subjective valuations, or something similar, are therefore bound to misunderstand him. Only if the great historical drama is approached as he approached it, only then is it revealed in a true light: a society of small commodity producers has overcome feudal restrictions by dint of hard struggle, and at last establishes a system wherein the producer freely disposes over his means of production. It is now declared that everyone shall own his means of production, that everyone shall be free to exchange the fruits of his labours for those of everyone else, it is ordained that everybody shall peacefully enjoy and keep his own as he has saved it from the ruins of the feudal system. The law leaves to every individual the use of his means of production, permitting him to work as he finds expedient. As the product of everybody's labours automatically becomes his property, the law may safely do so. The law also leaves it to every individual to provide for his descendants, and it may safely do so: for the father's property forms a fund of subsistence for the inheriting children. This plain and simple regulation of property merely attempts legally to stabilise 6b the existing living conditions of society. 1. Change of Functions and Change of Norms But now we find the peaceful enjoyment of one's own property developing into the draconic control of alien labour-power, and giving rise to a new regulation of labour, more severe and in its initial stages more cruel than any regulation of feudal times or of the time of the pharaohs-we need only mention child labour. Thus peaceful enjoyment of one's own object becomes constant appropriation of the proceeds of the labour of others; it becomes title to surplus value, distributing the whole of the social product as p r d t , interest and rent among an idle class, and limiting the working class to the mere necessities of existence and procreation. In the end it reverses all its original functions. The owner has now no longer even detention of his property; it is deposited at some bank, and whether he is labourer or working capitalist, the owner cannot dispose of his own. He may not even be acquainted with the locality of the concern in which he has invested his property. Yet one function of capital is indestructibly linked up with his person, the function of appropriating the products of alien labour; and month by month the bank messenger delivers to the owner the revenue of his economic property. This vast process of change, with all its accompanying phenomena, The bourgeois revolution was so much easier because there was no necessity to form new social groups or to redistribute possessions, apart from the liberation of the peasants. Fundamentally it proclaimed only two commandments: a material one, that everyone should keep what he bad, and a personal one, that everyone should mind his own business. K. Renner is unfolded before the eyes of Karl Marx; he exposes it as the problem of our time, as the vital question of the whole of human society in our present era. His thoughts cover the whole of human society and at the same time they concentrate upon the inherent and mast secret principles of its existence; in his thoughts he is in advance of the overwhelming majority of our generation. He has made it clear to us that property in the capitalist epoch fulfils functions quite different from those which it fulfilled in the era of simple commodity production, and partly opposed to these. He has made it clear that property has become antisocial, intrinsically opposed to the real interests of society. Yet all property is conferred by the law, by a conscious exercise of the power of society. When society was in control it endowed the individual with the power of disposal over corporeal things; but now the corporeal object controls the individuals, labour-power, even society itself-it regulates the hierarchy of power and labour, the maintenance and procreation of society. Mankind has become tributary to its own creation. The norm is the result of free action on the part d a society that has become conscious of its own existence. The society of simple commodity producers attempts to stabilise its own conditions of existence, the substratum of its existence, by means of the nonn. But in spite of the nonn, the substratum changes, yet this change of the substratum takes place within the forms of the law; the legal institutions automatically ohange their functions which turn into their very opposite, yet this change is scarcely noticed and is not understood. In view of all this the problem arises whether society is not bound to change the norm as soon as it has become conscious of the change in its functions. 2. Complementary Institutions Displace the Principal Institution An urgent demand for a human society that acts in freedom and in full consciousness, that creates its norms in complete independence: this is socialism. The very word expresses this. The passing of man from the realm of necessity to the realm of freedom cannot be conceived otherwise than as a marshalling of the organised will of society against the paltry presumptuousness of the individual, so that the object that has become the master of man may again be subjected to the control of society. Common will can achieve this only by a direct, controlled and well-aimed regulation of the relations among men and between man and nature, so that every person and every object may have its functions openly established and may fulfil them in a straightforward manner. Utopians indulged in dreams and speculations as to how this could be achieved, fanatics of law and philosophy felt themselves obliged to preach fantastic remedies. It was thought that completely new legal institutions would have to be fashioned and the old ones abolished by decree, in order to bring about something that man had never known before. The socialists of this period, the Messianic era of socialism, failed to recognise that it is above all the way of experience which can lead to the new, that even the state of the future is conditioned by the past and that it cannot be otherwise. This era has long since passed away, nowadays we rely on empirical fact, and rightly so. But the socialists, and also unfortunately their leading group, the Marxists, Marxist Theories of Law and State disdain to apply this experience in the realm of the law and the date. They fail to comprehend and to investigate scientifically, how far it is true that the new society is already pre-formed in the womb of the old, even in the field of the law. May it not be true that here also new life is already completely developed in the mother's womb, waiting only for the liberating act of birth? Some vista of the future, some answers to the questions which we have raised, must have occurred to anyone who has accompanied us on our journey through economics, who has joined in our study with critical regard to the sufferings of mankind. Every society requires a regulation of power and labour. Why do we not set out to create it directly? Why do we not appoint skilled teachers to be masters of our apprentices, why does society accept blindly everyone who takes over an enterprise by the chance of birth or inheritance, although he may be totally unfit to instruct? Why does not society select the best-qualified agriculturist to succeed into a farm that has become vacant, instead of the rich city man who buys it as a hobby, or instead of the fortuitous heir who may be no good? If hereditary appointments are now abolished as insufferable in the case of the most unimportant public office, why is it that the fortuitous heir may still succeed into an important economic enterprise which is responsible for the good or bad fortune of a thousand workers, and, maybe, for the adequate supply of certain goods for the whole of society? Anyone can see that society is in immediate need of a regulation of appointments. Our expositions have shown that the real successor who serves the economic functions of a concern is appointed by contract of employment, so that the heir need only play the part of possessor of a title to surplus value without performing any function. We have seen that even to-day property is supplemented by complementary institutions which take over its real functions. Should we not come to the conclusion that the process of change towards a new legal order has already begun, that the complementary institutions already pre-shaped in the framework of the old order will become the principal institutions so that the institution which has previously played the principal part can be abolished, without any disturbance of the economic process, in so far as it no longer serves a usefuflsocial purpose? Feasible as this idea seems, it nevertheless comes up against the most rampant prejudices. It would mean that the contract of employment would become the principal institution of the social regulation of labour, but tshis institution was during the last century denounced as the source of all social suffering. - We are asked to revolutionise our conceptions completely. But we have already met two decisive reasons for changing this opinion. We have seen that the contract of employment, like all legal fonns, is in itself neither good nor evil, that the value of the legal form is solely determined by the social function fulfilled by the legal institution. We have seen that iht is not the legal form of the contract of employment but its connection with the institution of property which makes the former an instrument of exploitation. Secondly, experience has shown us that the contract of employment even to-day has developed into the established " position " and has to a large extent become socialised and made secure by means of manifold social rights. K. Renner 783 3. Complementary Institutions of Public Law Force the Private Law Institutions into the Background A second and probably even more important phenomenon becomes apparent and must be considered by the intelligent observer. Property is a matter of private law. The whole body of our legal doctrine is based upon this fact. We distinguish between private and public law as the two principal branches of our legal analysis, as we understand it. The normative content of our existing laws fully justifies this division and we cannot avoid making this distinction. Our observations, however, have led us to recognise that every legal order must grant to everybody a private sphere into which the common will does not intrude. After the victory of a liberalist philosophy with its concepts of natural rights, to which the victory of the bourgeoisie over the feudal system corresponded in practice, a theury of constitutional law was evolved which set limits to the powers of the state, affecting even the public law. Public law may not transgress these limits; within them the individual is free and not subject to the control of the state. Here he is no longer a citizen of the state but simply a human being who enjoys freedom of thought and religion, freedom of convictions which the state may not touch. We hold this freedam of the individual in high esteem. It is not a present of nature and it was gained as a precious good of civilisation only after severe social and political struggle; and no thinking socialist would dream of surrendering it.BC As far as we can judge looking into the future, material goods will also belong to this sphere, not only family portraits and other articles of sentimental value, but also the bulk of goods intended for consumption, household utensils, perhaps even the home itself. There will always be a private "suum," a sphere of one's " legal own," even with regard to rights in rem, no matter what social order men may give themselves. But contemporary property, capital as the object of property, though de jure private, has in fact ceased altogether to be private. No longer does the owner make use of property in a technical way; the tenement house serves a number of strangers and the railway serves all and sundry. Propecy in its technical aspect has been completely estranged from the owner. The Roman civil lawyer believed that dominus rei suae legem dicit. As far as ownership of capital is concerned, this pronouncement is no longer true: it is society that disposes of capital and prescribes the laws for its use. It may be maintained at least that the object has ceased to be private and is becoming social. An army of a thousand miners, an army with its own generals, commissioned and non-commissioned officers, all of them employees, have complete technical control of the mine; they search its depths and bring its treasures to light, securing not only its continuity but also its very existence; and they stake their own lives for this purpose. Evidently it is a mere provocative fiotion that this army should be regarded as a disconnected crowd of strangers, and the share-holders, who may not even know where their This has not prevented Bulshevism from again establishing the omnipotence of the state, from stringently curtailing human freedom in the spiritual sphere. I think this is a disastrous retrogression. It is not justifiable to surrender achievements of civilisation even if they are branded as introductions of the enemy, the hated bourgeoisie. 784 Marxist Theories of Law und State property is situated, as the real owners. Language, indeed, revolts against such abuse. What is it that makes this abuse nevertheless apparently tolerable? Public law has for a long time recognised that where the whole of society is in principle concerned with an object, it can no longer be treated as a matter that is merely private. So it wmes about that private law is supplemented by rules of public law relating to the abject; a process that was cautious and tentative in the beginning but soon became more decided and in the end was developed in full consciousness. In the liberal epoch the state considered every interference with the economic system and therefore with private law as contrary to reason and natural law; accordingly it refrained from it completely and merely exercised the restricted funotions of protection and administration of justice. But since the middle of the last century the state is no longer content merely to hold the mace and the scales, it begins to take an active part in administration. New norms are made year by year in increasing numbers in the form of statutes, orders and instructions of the administrators of the state. Administrative law develops into a special branch of legal analysis, and economic administration soon becomes the most extensive part within this branch. Grievances arise out of the application of the law of property and the contract of employment to the factory, and therefore administrative law must step in. Regulations relating to the normal working day, factory inspection, and protection of women and children are institutions of public law which increasingly supplement these institutions of private law. Insurance against sickness, accident and old age follow suit, public labour exchanges replace the private labour market, and so on. In the end the relations of labour are as to nine parts regulated by public law, and the field of illfluence of private law is restricted to the remaining tenth. When we were dealing with the functions of capital, we nearly always had occasion to refer to complementary institutions of public law and to emphasise that these are new creations; in the main they were introduced or at least perfected only after the death of Karl Marx. Thus we are led to surmise that a two-fold development is taking place: fir*, that the complementary institutions of private law have deprived the owners of their technical disposal over their property; and secondly, that the common will has subjected property to its direct control, at least from the point of view of the law. Elements of a new order have been developed within the framework of an old society. So it may not be necessary to clamour for prophets whose predictions of the future will flow from esoteric qualities of the soul. It may well be that there is no need to proclaim premiums for those who would draft the new legal constitution of a reasonable social order: perhaps the truth is that we can simply deduce the law of the future from the data supplied by our experience of to-day and yesterday. Should this be so, and we have good reason to believe it, our only problem would be to burst the shell which still obstructs the new development; to set free the complementary and supplementary institutions and to use them straightforwardly in accordance with their present and real functions, freed from restriction; to elevate them, the previous handmaidens of property, into the principal institutions; and to liberate them from the fetters of traditional property, which hms lost its functions and has itself become a restriutive force. Our observations have shown, however, that this cannot be the automatic result of a change of functicms, that new norms are required to achieve it. For there can be no doubt that only a norm can break another norm. The norm, however, is a conscious act of will performed by society. 4. Legal Doctrine and the Tasks of Society If society has become conscious of the changes in the functions of property and its contradictory effeots, the question arises whether it must not change the norm. If it has surrounded property with so many barriers that these have gained the specific and paramount importance of a legal construction sui generis, should it not set free this new construction from the obstructions caused by its origin? Or has it surrendered so much of its autonomy that it can no longer perform this last step or dare not do so? Does society still enjoy freedom of will, the power to create new norms? Even if it disposes of the instruments of legislation, if its legal title to free legislation is beyond dispute, the question still remains: is society still able to control technically the forces of development which have been set free? Socie$y is sovereign as the legislator, but is it equally sovereign in practice? Or can it achieve in practical life only what it must? We have already become acquainted with the external limits which restrict the efficacy of the norm. If the law changes its functions, does this enforce a change of norms as well? Why do the norms not change equally automatically? If a change in functions is always also the cause of a change in norms, why is it that this cause cannot equally take effect in the quiet way of facts? How is the law determined by economics? We have seen that the economic substratum dislocates the funotions of the norm, that it reverses them; but the norm itself remains indestructible. - The capital function also remains indestructible, and all development serves only its perfection. Therefore it may seem as if the crudest change of function does not react on this nebulous creation, this immaterial formula, those imperatives which apparently have no existence or only modestly vegetate in the documents of the statutes. Does it mean that the norms are indestructible, eternal, changeless, or at least determined by no other power than their own? Given that, like all else under the sun, norms have their causes, wherein do these lie? Given that they enjoy a real existence, what are its characteristics, what is the mode of their existence and how do they change? Given that their origin lies in the conditions of life of the human race, that they are nothing more than a means of preserving human society, what part do they actually play in the existence and development of our own generation? These are open questions of jurisprudence. The time has come to [pp. 292-3001 engage in an attempt at their solution. Marxist Theories of Law and State E. B. PASHUKANIS Theory o f Law and Marxism The Tasks o f the General Theory of Law Mam pointed out in his Critique of the Gotha Program, the transition epoch is characterized by the fact that human relations will perforce be closed in for a certain period of time by "the narrow horizon of bourgeois law." What M a n conceived this narrow horizon of bourgeois law to comp~ise,it k interesting to analyze. He takes as a premise a social order wherein the means of production belong to all society, and wherein producers do not exchange their products-nsequently he is taking a stage higher than the New Economic policy through which we are living. The bond of the market is replaced entirely by an organized bond, and accordingly "labor consumed in the manufacture of product is not manifested in the shape of value (as a supposed property of the produob themselves) since here-in contrast to capitalist society-the labor of the individual is part of the But even if the market collective labor directly and not indirectly." and the barter of the market were completely elhninated, the new communist society must for a certain time " bear upon itself in all relationships-economic, moral, and intellectual-the sharply defined imprint of the distinguishing attrilbutes of the old society from whose innermost partts it came to bight" (Marx). This L stated in the prinoiple of distribution whereby " each jxoducer personally obtains precisely what he furnishes to society (after the making of certain deductions)." Marx emphasizes that-regardless of radical changes of content and form-" the principle here dominant is the same principle as that which prevails in the barter of goods equivalents: a definite quanitum of labor in one form is exchanged for the same quantum of labor in another form." Insofar as the relationships of the ilndividual producer and society continue to retain the form of an equivalent exchange, they continue to that extent to preserve the f o m of law as well-for " by its very nature, law is merely the application of a like scale." However, the natural differences of individual capacities are not here taken into consideration, wherefore " by its content, this law-like law of every sort-is the law of inequality." Marx says nothing as to the necessity of state authwity whose coercion would guarantee the fulfilment of these norms of the " unequal " law which preserves its " bourgeois limitedness "-but this is perfectly obvious. Lenin drew the inference that "as regards the distribution of products o f consumption, bourgeois law, of course, presupposes inevitably %he bourgeois state as well, since law is nothing without a mechanism capable of compelling the observance of legal norms; the result is that not only does fbourgeois law remain for a centain time under communism, but so does the bourgeois state as wellwithout a bourgeoisie! " 7b Once the form of an equivalent relationship is provided, this means that a form of law is provided--a form of public (that is to say. state) authority-which is thereby enabled to . . . As 7 7a 7b [From Babb and Hazard, Soviet Legal Philosophy (1951), p. 111.1 Marx, Critique of the Gotha Program (Russian ed., 1919), p. 15. Lenin, The State and Revolution (Russian ed.), p. 93. E. B. Pashukanis remain in force for a certain t h e , even in conditions whexe the division into classes no longer exists. The dying out of law-and i&erewith of the state-will be complete, according to the view of Marx, only when " labor, having cased to be a means of life, shall itself become the primary demand of life "-when the all-sided development of individuals shall be accompanied by an expansion of production forces, and evmyone shall labor voluntarily, according to his capacities-or in the words of Lenin-" shall not make deductions after the fashion of Shylock so as not to work an extra half hour more than someone else": in a word, when an end shall finally have been put to the form of the equivalent relotionship. Accordingly, Marx conceived of the @ansition to expanded oolmmunism, not as a transition to ncrw f m s of law, but as the dying out of the juridic form in general-as liberation from this heritage of the bourgeois epoch which was destined to outlive the bourgeoisie itself. At the same time, Marx points out the basic conditions of the existence of the legal form-a condition rooted in eoonomics itself: <theunification of labor exertions upon the principle of an equivalent exchange -that is to say, he opens up the profound inner connection between the form of law and the form of goods. Society, which according to bhe condition of its production forces is constmined to preserve a relationship of equivalency between expenditures of labor and compensation therefor in a form which is reminiscent (although only remotely reminiscent) of the exchange of goods values, will be constrained to pre.serve also the form of law. It is only if we s h r t from this basic element that we can understand why a whole sen'm of other social relationships takes on juridic form. On the contrary, to reason that courts and statutes will remain for ever and aye, for the reason that certain wimw against personality and so forth will not disappear under the maximum of eoonomic security, is to take elements which are derivative and of minor importance for the principal and basic elemmts. For even bourgeois advanced criminologists are convinced theoretically that the struggle against criminality may itself be regardexl as per se a task of medical pedagogy for whose solution the jurist-with his " bodies of mimes," his codes, his concept of " guilt," his " unqualified or qualified criminal responsibility," and his subtle distinctions between participation, complicity, and instigation-is entirely superfluous. And if this theoretical conviction has not as yet led to the abolition of criminal oodes and criminal courts, this is so only because the overcoming of the forin of law is associated not only with going beyond the framework of bourgeois society but also with a radical deliverance from all the survivals of that saoiety. A critique of bourgeois julri~sprudencefrom the viewpoint of scientific socialism must take as a model the critique of bourgeois political wonomy furnished by Mam, and to this m d should first and foremost repair to the enemy's territory-that is to say, it should not cast to one side the generalizations and abstractions worked out by bourgeois jurists who started from the demands of their time and their class but, having subjected these abstract categories to analysis, open up their genuine significance : that is to say, show the history which is responsible [pp. 122-1241 for the legal form. . . . 788 Marxist Theories of Law and State Goods and Subject Only with the complete development of bourgeois relationships does the law acquire an abstract character. Each man becomes a man in general; labor of every sort is reduced to socially beneficial labor in gener~il,~c and every subject becomes an abstract juridic subject. At the same time the norm, too, takes on the logically perfect form of an atwtract general statute. The juridic subject is, therefore, the abstract goods-possessor elevated to the heavens. His will--undemtood in the juridic sense-has its real basis in the wish to alienate as it acquires, and to acquire a it alienates. In order far this wish to be realized, it is eswntial that the wishes of goods-producers go out to meet each other. This relationship is expressed juridically as a contract or accord of independent wills, and contract is therefore one of the central concepts in the law. In more grandiloquent phraseology, it becomes a ciomtituent part of the idea of law. In a logical system of juridic concepts, contract is only one of the species of commercial agreement in general-that is to say, one of the means of effecting a concrete manifestation of one's will -with the aid of which the subject exerts an influence taking effect upcm the legal sphere round a b u t him. History and reality, on the contrary, demonstrate that the concept of commercial agreement grew out of ciontract. Aside from contract, the very concepbs of subject and will in the juridic m s e exist only as lifelevs abstractions. In contract these concepts acquire their genuine movement, and simultaneously in the a& of exchange the juridic form acqui~esits material foundation in its purest and simplest form. The act of exchange accordingly concentrates and focuses within itself the elements most essential for both political economy and for law as well. In exchange, according to the words of Marx, " the will relationship (or the juridic relationship) is furnished (by the economic relationship itself." Once it has arisen, the idea of a contract seeks to acquire universal significance. Goods-possessors were, of course, owners before they "acknowledged" each other as such-but they were owners in another organic and extra-juridic sense. " Mutual acknowledgment " signifies nothing but an attempt to interpret, with the aid of the abstract formula of contract, the organic forms of appropriation resting on labor, seizure, and so on which a society of goodsproducers, as it is merging, finds ready-jxepared. Per se the relationship of man to a ahing is completely lacking in juridic significance of any sort. This is the feeling of jurists when they try to conceive of the institute of private property as a relationship between subjects-that is to say, between people. They construe the relationship, however, in a pure1y formal manner--and their construction is moreover negative, being universal prohibition, resting upon all except the owner, against using and disposing of the thing. While this conception is suitable for the practical purposes of dogmatic jurisprudence, it is completely unsuited to theoretical analysis. In these abstract prohibitions, the cioncept of its cult of the abstract man-particularly in its bourgeois development, in protestantism, deism, and so forth-Christianity is the form of religion most in conformity with the society of goods-producers, among whom the chief social prerequisite of production consists in the fact that for them the products of labor are goods-that is to say, values-and that they treat their private works as identical, each with the other, in this uniform shape, as homogeneous human labor." I Marx, Das Kapital (Russian ed., 1923), p. 46. 70 " With E. B. Pashukanis 789 property loses every sort of living meaning. and repudiates its own prejuridic history. If, however, the organic "natural " relationship of man to a thingthat is to say, the appropriation of the thing-genetically constitutes the sltarting pdnt of development, then the conversion of this relationship into a juridic relationship was accompli~hedunder the influence of the demands-called into being by the circulation of boons-that is to say, ohiefly by purchase and sale. Hauriou directs attention to the fact that originally maritime trade and trade by caravans meated no demand for a guarantee of property. The distance which separated the persons padicipating in the exchange afforded the best guarantee against all claims of whatsoever sort. The formation of a constant market makes solution of the problem as to the law of dispos'ing of goods-and consequently as to a law of property-indispensable. The title of property in ancient Roman law-mancipatio per aes et libram-shows that it was oonceived simultaneously with the phenomenon of internal exchange. In the same way, trammission by inheritance became established as a title of property only as and from the time when civil turnover manifested an interest in such transfer. In exchangein the words of Mam-" soleiy by the will of another, one goods-possessor . . can appropriate the goods of another, alienating his own goods." This is precisely the meaning which the reprewmtatives of the natural-law doctrine tried to express when they strove to find a basis for property in some primordial contract. 'They were correct: not, of course, in the sense that any such contract ever had a place in history, but in the sense that natural m organic fofims of appropriation acquire juridic " reason " in mutual acts of acquisition and alienation. In the act of alienation, the effectuation of the right of property-as an abstraction-becomes a reality. Every other sort of application of a thing is associated with a concrete species of using it as a means of consumption or as a means of production. When a thing is functioning as ap exchange value, it becomes an impersonal thing-a pure object of the law-and he who is disposing it becomes a subject-a pure juridic subject. The explanation of the contradiction !between feudal property and bourgeois property must be sought in a different relationship to turnover. In the eyes of the bourgeois world, the chief fault of feudal property is not in its origin '(seizure and violence) but in its immobility-in the fact that it was incapable of becoming an object of mutual guarantees as it passed f ~ o mhand to hand in acts of alienation and acquisition. Feudal property, or the property associated with the feudal order, violates the abstract principle of bourgeois society-" the equal possibility of attaining inequality." Hauriou, one of the most penetrating bourgeois jurists, rightly puts mutuality into the foreground as the most effective guarantee of propxty, as well as one which is realized with a minimum measure of external violence. This mutualityguaranteed by the laws of the market-gives property the character ,of an "eternal " institution. By way of contrast, the purely political guarantee, provided by the mechanism of state constraint, is nothing more than a defense of a given personnel of proprietors-that is to say, it is nothing more than an element possessing no significance of principle. . B [On Hauriou, see Jennings, in ed. Jennings, The Modern Theories of Law (1933), pp. 68-85"] 790 Marxist Theories of Law and State In history, the struggle of classes has led more than once to a new distribution of property-to the expropriation of usurers 'and owners of latif~ndia.B ~ ~d these shockshowever unpleasant for the groups and classes which s&ered4id not shake the fundamental bulwark of private property itself: the economic association of properties through exchange. The very people who had risen up against property on one day had to affirm property on the day following whem they met in the market as independent producers. Such was the course of all the nonproletarian revobtions. Such was the logical deduction from the ideal of the anarchists who-asting away the external indicia of bourgeois law (state coercion and statutes)--preserve its inward essence: the free contract between independent producers.O Thus it is only the developmenlt of the market that in the first instance creates the possibility and the necessity of turning man who is appropriating things by way of l a b r (or plunder) into a juridic owner. Between these phases there is no impassable boundary. "The natural " imperceptibly passes over into the juridic, precisely as armed robbery merges in the cl-t fashion with trade. . . [pp. 169-1721 . Law and Morality It must, therefore, be borne in mind that morality, law, and state are forms of bourgeois sooiety. The fact that the proletariat may be compelled to use them by no means signifies that they can develop furthw in the direction of being filled with a socialist content. They have 'no capacity adequate to hold a socialist contant and are bound to die out to the extent that it is brought into being. Nevertheless, in the present utilize in its class transition period, the proletariat mwt n-arily interest these forms which have been inhelited from bourgeois society and thereby exhaust them completely. To this end, the proletariat must first and foremost have a notion of the historical origin of these forms which is perfectly clear and free from ideological haziness. Its attitude must be one of sober criticism not only as regards the bourgeois state and bourgeois morality, but also as regards its own state and its own proletarian morality-that is to say, it must comprehend the historical necessity alike of their existence and of their disappearance.1° [P. 2011 Law and Breach of Law . . The origin of criminal law is historically associated with the custom of blood vengeance. There is no doubt that these phenomena are close . 9 10 '' It may in justice be said that, over a period of two thousand years, private property has been maintained by the violation of property." Engels, The Origin of the Family, Private Property and the State (20th German ed.) p. 112. Thus, for example, Proudhon declares: " I desire a contract but not statutes. In order that I may be free, the entire social edifice must be rebuilt on the principles of mutual contract " (10 Idkes GknCrales de la RCvolurion 138) : at a later point, however (p. 293), he is compelled to add: "the nonn in accordance with which a contract is to be carried out will not rest upon justice alone, but likewise upon the general will of the persons entering upon life in common-a will which compels the fulfillment of the contract, albeit by force." Does this mean that " there will be no morality in society of the future" 7 Of course not, if morality is understood in a broad sense as the development of the loftiest forms of humanity and the conversion of man into a generic being (to use the expression of Marx). E. B. Pashukanis 791 to each other genetically. Rut vengeance becomes completely vengeance only because it entails a money line for causing death as well as punishment: that is to say, even here the subsequent stages of developmentas L frequently to be seen in the history of mankind-explain the intimations ilmplioit in the preceding forms. If, horwever, we approach the same phenomenon from the opposite end, we shall see therein nothing but a struggle for existence: that is to say a purely biological fact. For the oriminal law theorists whose vision is fixed on a later epoch, blood vengeance coincida with jus talionis-that Is to say, with the principle of equal retribution. whereunder the vengeance for the insult taken by the person insulted or by his clan (gens) elimina,tes the possibility of further vengeance. In reality . the most ancient type of blood vengeance was not at all of this character. Conflicts between clans (gentes) are transmitted from generation to generation. The insult-even though it is carried into vengeance-remains itself as a basis for a new vengeance. The insulted person and his kind become the insulters, and so on from one generation to another-not infrequently until the hostile clans are completely exterminated. Vengeance begins to be regulated by custom, and is converted into requital according to the rule of jus talionis: "an eye for an eye and a tooth for a tooth," only when-side by side with vengeance-a system of composiltion arrangements or money redemption begins to grow strong. The idea of an equivalent-this first purely legal idea-has always the same farm of goods as its wurce. Crime may be regarded as a special variety of turnover in which the exchange-that is to say, the contractual-relationship is established ex post facto: that is to say, after the willful action of one of the parties. The ratio between the crime and the requital is nothing more than the same exchange ratio. Accordingly Aristotle-speaking of equalization in exchange as a species of justice-divide it into two sub-species: equalization in voluntary actions and equalization in involuntary actions, and to the former category he somehow or other refers eoonomic relationships: purchase and sale, bailment, and so on, while to the latter he refers crimes of various mts which entail punishment as wme kind of equivalent. The definition of crime as a contract concluded against one's will also belongs to Aristotle. Punishment comes out as an equivalent balancing the damage sustained by the injured party. Grotius, as eveyryone knows, accepted the same idea. However naive these conceptions may appear at first glance, there is laitent in them far more of a flair for the form of law than in the eclectic theories of contemporary jurists. The examples af vengeance and punishment enable us ta observe with extraordinary distinctness unnloted transitions whereby the organic and the biological are associated with the juridic. This merging is intensified by the fact that man is in no condition to renounce the interpretation of the phenomena of animal life to which he is accustomed -that is to say, the juridic or ethical interpretation. In the actions of animals he involuntarily finds the meaning put into them strictly speaking, by subsequent development-that is to say, by the historical development of man. In reality, the act of self-defense is one af the most natural manifatations of animal life. It makes no difference whether we encounter it as an individual reaction of a particular animal or whether it is sel'fdefense by the collective. Saholam who have observed the life of bees .. 792 Marxist Theories of Law and State assert that if a bee tries to penetrate into an alien hive so as to steal honey, the bees who guard the entrance at once throw themselves upon the intruder and begin to sting it; and if it penetrates into the hive, they kill it forthwith as won as they find it there. No less rare in the animal world are cases when the reaction is separated by a certain interval of time from the circumstances which evoke it. The animal does not respond itmediately to the attack, but defers his response to a more convenie~~t time. Self-defense here becomes vengeance in the true sense of the word. And inasmuch as ddense k indissolubly connected for modern man with equal requital, it is not surprising that Fer'ri, for example, is ready to recognize the presence of the ju~idic instinct in animals. In reality the juridic idea-that is to say, the idea of an equivalent -becomes perfectly distinct and attains objective realization only at that stage of economic development where this form becoma customary as equalization m 1eveLing in exchange: that is to say, at all events in human soaiety and not in the world of animals. It is not at all necessary to the achievement of this result that vengeance be completely ousted by redemption. And it is precisely in the case whme ~edemption is rejected as @omethingshameful (and this view is long dominant among primitive peopla), and the realization of personal vengeance is recognized as a sacred obligation, that the act of vengeance itself takes on a new coloration which it did not possess when there was as yet no alternative. Speoifically, the idea of the only adequate means of requital is put into it. Refusal of redemption in the form of money, as it were, emphasize that the blood which is spilled is the sole equivalent fm the blood which has previously been spilled. Vengeance ceases to be a purely biological phenomenon, and becomes a juridic imtitute insofar as it is brought into some particular association with the form of equivalent exahange: exchange according to value. . . [pp. 207-2091 . 0.S. IOFFE and M. D. SHARGORODSKII The Significance o f General Definitions in the Study o f Problems o f Law and Socialist Legality (1963) With the transition from the state of the proletarian dictatorship to the Soviet state 20 of the entire people, the rule of the working class is replaced by the political rule of the entire people. New goals are advanced before this state, goals which stem &m the entry of our society into the period of the comprehensive building of communism. It is precisely in conjunction with the fulfillment of these tasks that a unity of the entire people is established and cemented, which eliminates the need to preserve the proletarian dictatorship. But +the final goals of the socialist state of the entire people remain the same as under the proletarian diotatorship. It poses as its goal the building of communism, and its organizing activity, directed by the Communist Party, is subordinated to this goal. Nor may one leave out of consideration the fact that, in the initernational arena, the Soviet state of the entire people, like the other socialist states. opposes states of the exploitative type, and ... [From a translation in Soviet Law and Government, Vol. 2, No. 2, p. 3.1 [On which see ante, 744.1 11-19 20 0.S. Zoge and M. D. Shargorodskii it does so as the spokesman for the will of $he working masses. Thus, although it is a state of the entire people, OUT sate can, and actually does, receive a definlite class evaluation-in terms of its goals, by comparison with social forms preceding the new organization of society established and being established in the U.S.S.R., and also as a type of state opposed to exploitative types of state. Analogous reasoning is applicable to socialist law. The socialist law of the period of @he proletarian dictatorship was an expression of the will of the dominant, i.e., the working, class. However, it was always emphasized, and correctly, that the will of the working class winoides with the will of the entire working population, and that Soviet socialist law expresses the will of the working class and of the entire Soviet people. Statements of this kind were based upon recognition of the indubitable proposition that, under socialism, there is not, and cannot be, a dominant will of any single portion of society imposed upon another portion. The will of the wolking class was characterized as dominant in the sense that inasmuch as the working claw exercises political rule, it is entirely natural that its will acquires dominant significance. From the standpoint of the object of rule (the social relationships actually existing) and the final goals for the attainment of wthich it is exercised (the communist transformation of society), the will of the entire people embodied in Soviet socialist law at the present stage of its development .is of the same type as the will that found expression in the slocialist law of the period of the proletarian dictatorship. Being the will of the entire people, it retains the same ~OCialcontent and the same social direction. Therefore, it may be stated that the general definition of the essence of law as the expresslion of the will of specific, politically dominant classes, seen through the prism of dominance over social ~lationships, with consideration of the existence of different and opposed legal systems, is also entirely applicable to the concept of socialist law in general. But if this law is, in essence, the will of the dominant class-in form the totality of the norms protected by the state, and in function the regulator of social relationships-then one may dedine the general concept of law in accordance therewith: law is the state will of the politically dominant class expressed in the totality of norms proteoted by the state as the class regulator of social relationships. . . Communist society is a society to which state compulsion is foreign, in which law does not exist, and social relationships are not regulated by law. But does it follow that the withering away of law in the period of transition to communism means the withering away of normative regulation in general? Can we conceive of oommunist society as a society in whioh normative regulation is replaced by the unregulated creative solution of problems of Wavior? It seems to us that such prognoses ale untenable and scientifically unjustified. Communism is a highly organized society of free and conscious working persons in which society is self-administered, work for the good of society becomes an inner need for all, a conscious necessity, and the abilities of eaoh will be applied with the greatest benefit for the people. The need for normative regulation of the relations existing in communist society derives from the very nature of that society. " Communist society is not an alliance of self-oontained economic organisms, isolated from each other. No, communist society, like no other, will stand in . 794 Marxist Theories of Law and State need of unified planning of the economy and organized allocation of labor and regulation of working time. The need for Ohis stems fnom the need for the development of the productive forces, from the profound interconnection of various branches of the eoonomy, from the interests of steady teohnical progress, from the communist principle8 of distribution and use." Thus, the econam~iclife 04 communist society will inevitably produce a need for normative regulation, inasmuch as planned economy, technical progress and, in general, the economic life of society at so high a level of its development ale impolssible without such regulation. There can be no doubt that Ohe technol'ogy operative under communist society will inevitably require the observance of general rules of behavior elaborated on the basis of the experience and collective reason of society as a whole and of experts in the various fields of science, technology, etc. On the other hand, as has been pointed out repeatedly, we are not utopians and do not rule out the possibility of occasional excesses by individuals even under the conditions of commumist society. The psyohological characteristics of individuals, particularly under conditions in which the social causes of crime (both internal and external, both immanent and foreign to the given social system) may, in exceptional c a m , induce violation of the elementary rules of the human community. known for ages and established over millennia. Society will not ignore, and will be incapatble of ignoring such violations; it will inevitably have to establish oommon standards of behavior. The transition to communist society does not at all mean that all compulsion will be completely eliminated and that there will be a complete cessation of the normative regulation of social relationships. Communism is a society that will have neither state nor law, but compulsion is not something that must necessarily be a function of the state, nor must normative regulation be a matter of law. Lenin repeatedly called attention to the fact that compulsion exists in all human groups. In communist society there will be no law, as there will be no state and state compulsion. The difference between legal measures and the measures to be applied to persons violating the norms of social behavior under communism consilsts in the fact that they will rest not upon state compulsion but solely upon public opinion, the strength of the group, social i n f l u e n ~ e . ~ ~ In socialist society, regulation by norms and, in particular, by law, is of vastly greater significance than in the socio-economic formations previously existing. This is an entirely legitimate process resulting from the fact that whereas, in capitalist society, social relationships develop in elemental fashion, under the conditions of socialism they are regulated consciously and in a planned manner. Moreover, oonscious influence on the course of social development becomes the stronger, the more advanced the development of the process of transition "from the realm of necessity to the realm of freedom." Thus, for example, whereas in capitalist society the number of commodities of a particular type produced, and their prices, are regulated by the spontaneous laws of the market. under the conditions of socialist society they are established 21 22 CFrom a speech d N. Khrushchev on the Communist Party Programme.] [From an article by Karapetian and Razin entitled On Investigating the Development of Soviet Statehood, published in Russian in 1961.1 0.S. Zofle and M. D. Shargorodskii 795 by norms, although in both instances they are, in the final analysis, determined objectively by the law of value. That is why regulation by law is especially important in socialist society, inasmuch as, if it does accord with the objective laws of social development, properly understood, it serves to promote tihis development. Oontrariwise, the errors sometimes committed in the organization of the legal regulation of social relationships have a negative influence upon the course of social development. Thus, for example, for a number of years prior to 1953 the prices paid for collective farm products turned over under the requirement of compulsory deliverim failed, in a very great number of cases, to comespond to the expenditures af the collective farms in producing these products. There was no consideration of the cost of production in the oollecfiive farms, and the prices fixed for these products were completely unrelated to production cosb. It was noted at the March 1%2 Plenum of the C.P.S.U. Central Committee that much harm was being done by the economically unjustified approach taken in a number of areas to determining farm produce pl-ocurment quotas, and that no indim had been developed to make it possible objectively to evaluate the functioning of the collective and state farms. All af this impeded the development of agricultural production for many years. It must also be noted that the law of planned, proportional development of the economy does not function automatically: it is realized consciously by socialist society in the plans of econo~nicdevelopment. These plans are developed by the Communist Party and the socialist state on the basis of scientific cognition of the objective laws of development of socialist society. Moreover, in capitalist society (as in the exploitative socio-eoonomic societies preceding capitalism), law as a whole is directed toward reinforcing and sanctifying the existing social relationships of dominance and subordination, and its basic task consists of protecting the existing system. Therefore it is the prohibitive (coercive) aspect of law sanctions, punishment, and their objective propertiw-that comes to the forefront. In socialist society, law is directed for the first time not only to ohanging the existing social relationships but to transforming them. Therefore it is important to estalblish not only how the norms of socialist law should influence specific relations subject to regulation, but also how they help in the solution of the fundamental task of building a communist society. The only question posed in the process of lawmaking to reinforce existing relationships is the method of regulation. But it is also necessary to investigate both the possibility and the need far selecting not only the method of regulation, but, within given limitis, the very course of development. It is quite obvious that, when the latter problem is dealt with, the limits of choice prove to be considerably broader, and the task consists of selecting the optimum variant of legal regulation. Thus, the social relationships of socialist society in the period of the comprehensive construction of communism must, for objective reasons, be regulated by the norms of law, and this regulation is more important under the conditions of socialism than at any previous time. However, merely to enact the very best of legal norms is inadequate. Only adherence to socialist legality can assure a situation in which regulation by 796 Marxist Theories o f Law and State legal norms is actually implemented in life and social relationships and truly regulated in accordance with these norms, and the goals posed in the process of lawmaking are thereby attained. That is why the party poses the task of assuring rigorous adherence to socialist legality, the uprooting of all violations of law and order, the elimination of crime, and the abolition of all causes giving rise to it. . . . [PP. 6-81 H . BERMAN Justice in the U.S.S.R. (1963) Law of a New Type . . . We have explained Soviet law, in the first instance, as a Marxian socialist response to the social and economic problems which have confronted the Soviet regime. To this analytical dimension we have added a historical dimension, explaining Soviet law in terms of inherited traditions and experiences as they have imposed themselves on the habits and memories of both the d e n s and the people. Yet Soviet law cannot be fully explained either by the logic of socialism or by the experience of Russian history or by both together. Many of its most important features are neither uniquely socialist nor uniquely Russian but are rather a product of a social philosophy which-though entirely congenial to both socialism and the R w i a n hehtage-is to be found in other non-socialist countries as well. We are compelled, therefore, to applroaah our subject once more, from a quite different angle. To understand a legal system it is necessary to distinguish between the official law proclaimed by the state and the unofficial law which exists In the minds of men and in the various groups to which they belong. Each of us has his own conceptions of rights, duties, privileges, powers, irnmunities-his own law-consciousness. And within each of the communities in h i e h we live-the family, school, church, factory, comtmercfal enterprise, profedon, ndghborhood, city, region, nationthere is likewise ag unofficial and largely unwritten pattern of obligations and sanctions. The official law of the state, with its authoritative technical language and its professional practitioners, cannot do violence to the unofficial 1awansci~)usnessof the people without creating serious tens i m in society. At the same time, official law is more than a reflection of popular law-consciousness; it also shapes it, directly or i n d i r e ~ t l y . ~ ~ - ~ ' This distinction between official and unofficial law is essential to a full understanding of the 'peculiar blending of Marxist theory and Russian history into a "new type" of law. It was the prophecy of classical Marxism that once class domination is eliminated, and once the economy is publicly integrated and rationalized, it will not be necesSee L. I. Petrazhitskii, Teoriia prava i gosudarstva v sviazi s teoriei nravstvennosti (The Theory of Law and State in Connection with the Theory of Character; ?int Petersburg, 1909). Petrazhitskii gave the name " intuitive " law to the law in the minds of men." See H. W. Babb, " Petrazhitskii: Science of Legal Policy and Theory of Law," Boston University Law Review, XVII (1937) p. 793. [Cf., also, the theory of Ehrlich, ante, 353.1 23-37 sary to put conflicting claims through the wringer of legal reasoning, judicial conscience, and p~cedents.Marx and Engels foresaw a classless society in which disputes would be settled by the spontaneous, unofficial social pressure of the whole community, by the group sense of right and wrong or at least of expediency. They saw a precedent for this in the condition of certain primitive peoples who have no poitive law, no state, but instead punish aberrational behavior through informal, spontaneous group sanctions. As among primitive societies at the beginning of history, yo in classless society at the end of history, they said, in effect, control will exist only in the habits and standards of the whde people, in the mores of the good society. This moral consciousness implicit in the Marxist utopia is something broader than law-consciousness. Nevertheless the two go together. Bdh are psychological rather than official. One is the feeling d what one ought to do, the feeling of being morally bound; the other is the feeling of what one has to do, the feeling of being legally bound. The idea of a society without law goes down hard in a cultu~e such as that of the West, where positive law tends not to be treated as merely one partiaulas means of social control but rather to be idmtified with social control altogether, so that every social norm, or at least every nqrm tolerated by the state, is assimilated to p i t i v e law. There is no case which does not fall undm some rde. But in Russia, where both law-consciomnms and positive law remained rudimentary through the centuries, where whole spheres of life were left outside the realm of law, the Marxist vision found an echo in the hearts and minds of the people. The Russian revolutionaries were not primarily interested in creating, ultimately, a new legal order, in the external, positive sense; they were interested rathar in creating, ultimately, a new sense of justice, as between man and man. They seized on the Marxist promise that, with the elimination of the bourgeoisie and the abolition of all survivals of capitalism, the oommunity would come to be regulated like a family, like a kinship society, by cusmmaa-y standards, by unofficial law, rather than by positive law. This corresponded to the historic Russian ideal of the regeneration of man and to the Russian conception of a society based on love and on service, a society with a (mission. Only n80w such a society was to spring from the materialist conception of history, from class struggle and the end of class struggle, rather than .from Christian faith in the Kingdom of God. Dostoevsky's vision of the transfior~matianof the State into the Church was replaced by Lenin's vision of the transforma. tion of the State into the Party. [pp. 279-28 l] .. Law as a Teacher and Parent Of course every system of law educates the moral and legal conceptions of those who are subject to it. In the Digest of Justinian it is explioiltly recognized that the task of law is the moral improvement of the people. Thurman Arnold describes the judicial trial as a "series of object lessons and examples." "It is the way in whiah society is trained in right ways of thought and action, not by compulsion, but by parables which it interprets and follows voluntarily."*8 Justice 38 Tkurrnan Arnold, The Symbols o f Government (New Haven, 1935), p. 129. 798 Marxist Theories of Law and State Bmndeis was a leading exponent of the view that the courts should recognize the importance of their educational function. Nevertheless, the educational role of law has not been traditionally regarded as central. Law has been conceived primarily as a means of delimiting interests, of preventing interference by one person in the domain of another, of enforcing rights and obligations established by the voluntary acts of the parties insofar as that is compatible with the social welfare. It has been assumed that the p m n s who are the subjects of law, the litigants cyr potential litigants, know their own interests and are capable of asserting them, that they are indcpandmt addts whose law-consciousness has already been formed. In some c a m this goes so far, under our adversary procedure, as to enable the judge to sit back as an umpire while the opening lawyers do battle with each other. The subject of law in our system, "legal man," has been the ruggad individualist, who stands or falls by his own claim or defense and is presumed to have intended the natural and probable consequences of his acts. To educate h h legal conceptions is no mean task. It requires a very good judge even to attempt it. At best he will succeed in educathg only indirectly, secondarily, by seeing that justice is done. In the Soviet system, on the contrary, the educational role of law has from the beginning been made central to the concept of justice itself.SBLaw still has the functions of delimiting interests, of preventing interference, of enforcing the will and intent of the parties-but the center of gravity has shifted. The subject of law, legal man, is treated less as an independent possessor of rights and duties, who knows what he wants, than as a dependent member of the collective group, a youth, whom the law must not only protect against the consequences of his own ignorance but must also guide and train and discipline. The law now steps in on a lower level, on what in the past has been a prelegal level. It is concerned with the relationships of the parties apart from the voluntary acts by which their alleged rights and duties were txbblished; it is concerned with the whole situation, and above all, with the thoughts and desires and attitudes of the people involved, their moral and legal conceptions, their law-consciousness. Soviet law thus seeks not simply to delimit and segregate and define, but abo to unite and organize and educate. The result is the creation of entirely new legal $9 Lenin stated as the most important task of the new Soviet courts that of "securing the strictest carrying out of the discipline and selfcdiscipline of the toilers. We would be ridiculous utopians if we imagined that such a task could be realized on the next day after the fall of the power of the bourgeoisie, that is, in the first stage of transition from capitalism to socialism, or (that it could be realized) without compulsion. Without compulsion such a task is completely unrealizable. The Soviet courts must be an organ of the proletarian state, realizing such compulsion. And on them is imposed the huge task of educating the population to labor discipline." (Works (4th Russian ed.), XXVII, 191.) The educational role of the courts continued to be emphasised. The changes in the mid-1930's only affected this idea insofar as they gave new dignity to the concept of law, which was now to survive into socialism and even communism. Of course law has never been considered the only or even the most important Soviet instrument of education, but since the mid-1930s its prestige has been considerably enhanced. At the same time there has developed a much greater respect for the educational value of traditional legal institutionsof criminal sanctions, for example. Law now educates by its very dignity and authority. values within a framework of language and doctrine which obhtnwise appears conventional and orthodox. I t is apparent that the Soviet emphasis on the educational role of law presupposes a new ccmcopti~on of man. The Soviet citizen is considered to be a member of a growing, unfinished, still immature society, which is moving toward a new and highar phaw of development. As a subject .of law, or a litigant in court, he is 'like a child or youth to be trained, guided, disciplnined, protected. The judge plays bhe part of a pwent or guardian; indeed, the whole legal system is parental. It should be understood that the words "parental" and "educational " as used in this context are morally inconclusive. The parent or guardian or teachex may be cruel or benevolent, angry or calm, bad or good. He may dislike the child. But he is rwpcmsible for the child's upbringing. T o speak of " parmtal law" is therefore not so 'muoh to describe the state which proclaims and applies the law as to describe the assumptions which a're made regarding the nature of the citizen and his relationship to the state. To say that under Soviet law the state hm extended the range of its interests and its powers is not enough. The state has sought in law a means of training people to fulfil1 the responsibilities now imposed on them-and it has made this function of law central to the wh.ole legal system. " Parental law " may be implicit in the actual practice of socialism as such. It surely has deep mots in Russian history. Yet it is essential to isolate the parental features of Soviet law from both its socialist and its Russian background, for parental law is not restricted to socialism or to Russia. According to Karl Llewellyn, " our own law mova steadily in a parental .. [pp. 282-2841 . 40 Karl N. Llewellyn, " Lectures on J u r i s p r u ~ ~"c e (emeographed; 1948). Llewellyn contrast the "adversary" with the parental system, drawing for his definition of parental" on the law of the New Mexican Pueblo Indians, the medieval Inquisition, and the Soviet trials of major political offenders. He lists the following characteristics of the parental system: (1) the court may dig up evidence for the defendant. (2) The court may make a prior investigation of facts. (3) The objective of the trial is reintegration of the offender with the Entirety; confession and repentance are normal preliminaries to a treatment viewed primarily as reeducational (" making an example," elimination of the offender, are out of key with the procedure, an extreme measure of panic; love for the Entirety and for the erring member is the proper emotional and intellectual keynote). (4) Criminal and civil offenses tend to merge, though reparation and restitution aspects are readily seen as involving private rights which need to be respected. (5) It is natural and right to draw into the case any past misconduct, even though previously punished, and the defendant's attitude as well as his actions; prior good conduct can weigh in mitigation (the wrong was a mere lapse) or in severity (knowledge and experience entail extra responsibility); not the offense alone but the whole man is in question. Llewellyn here focuses on the parental role of the court, particularly in its procedural aspects. Roscoe Pound uses the word " socialization " to describe the dominant tendency of American legal development in the twentieth century, focusing on the changes in substantive law. There is a close connection between Pound's " socialization " (which is not necessarily connected with socialism in the Soviet sense of a planned economy) and Llewellyn's " parentalism." Pound lists the following changes: (1) growing limitations on an owner's use of his own property, and notably on the antisocial exercise of rights; (2) growing limitations on freedom of contract; (3) growing limitations on an owner's freedom of disposition of his own property; (4) growing limitations on the power of a creditor or an injured party to exact satisfaction; (5) liability without fault merging into the insurance principle of liability, making enterprises 800 Marxist Theories of Law and State . .. The extension of official law, juristic law, to domains once left to the i n f m a l processes of family life, the school and church, the local community, work associations, business associations, and the like, has posed a orucial problem for twentieth-century man. Togethm with the extension of legal oontrols we are witnessing a withering of the inner strength of these associations. Here are relationd~ips which are so clme-knit as to require more spontaneous responses, relationships which are so delicate and so intimate as to demand more mobility and flexibility than law traditionally allows. We are in danger that the life will go out of them, as they become subjected to the formal and time-consuming processes and definitions of law. " The letter killeth, but the spirit giveth life" is a saying which takes on new meaning as our social order becomes more and mare legalized. The significance of Soviet legal development lies in just this oen.niscious extension of law to the most intimate social relations. The Soviet rulem have abandoned the original Marxist theory that the abolition of class struggle will render law uinnecessary, that a moiety without exploitation can live on infonmal, indefinite, unofficial social practices and standards. They have not officially abandoned their dmam of such a time; but classless socialist law itself is now conceived as a means of producing it. In other W&, the Soviets take their stand and ultimately the community as a whole responsible for agencies employed for their benefit; (6) increased assertion of public rights in basic natural resources ("the change of res communes and res nullius into res publicae "); (7) growing intervention of society through law to protect dependent persons, whether physically or economically dependent; (8) tendency to hold that public funds should respond for injuries to individuals by public agencies; (9) replacement of a purely contentious conception of litigation by one of adjustment of interests; (10) reading of the obligation of contract as subject to the overriding requirement of reasonableness, of which, despite current confusion of grounds, the doctrine of frustration seems to be an example; (11) increased legal recognition of groups and persons in stable relations to each other as legal units instead of exclusive recognition of individuals and juristic persons as their analogues (the collective labor contract, and the "common rule " of an industry, and the labor union itself are examples); (12) the tendency to relax the rule as to trespassers (Roscoe Pound, Outlines of Lectures on Jurisprudence [Sth ed. ; Cambridge: Harvard University Press, 19431. pp. 4348). The idea of parental law and the idea of ,socialized law (in Pound's sense) are brought together in Petrazhitskii's phrase, the socialization of the psyche." Obviously many of the features of parental law exist in all legal systems. The reason that a new term such as parental law is needed is to indicate a shift in the center of gravity of the legal system. Any particular rule or institution of the Soviet legal system may be found in some other system; the ensemble, however, is different. One diiculty with the word " parental" is that it may connote the idea of kinship in a literal sense. Of course the state do? not literally reproduce the litigants in a parental system of law. "Parental is used here in a broader and more figurative sense. The state, through law, plays the role of guardian, and the individual before the law is like a ward. Any absolutism tends toward parentalism. Parental law should not, however, be identified with the absolute state as such. In many ways a more appropriate analogy may be made to the Church in its Roman Catholic, Anglican, or Eastern Orthodox forms. The priest is called father; the very word pope (papa) means father. The Soviet writers do not use the phrase " parental law." However, there is great stress in Soviet legal literature on the educational role of Soviet law, and here the word "educational" (vospitatel'naia) has a very wide connotation, implying rearing or upbringing. Whatever the particular word used, the crux of the matter is the focus on the role of law in the upbringing of people. , in the future, at the end of time, when life will be regulated by the noms and imperatives of social custom, as written in the conscience of mankind. Looking backward into the present from this end-time, they seek by the use of norms and imperatives of official law to form, in an official sense, the functions of the various social groups and associations to which their citizens belong. They attempt to use law to strengthen those groups and associations by appealing to the conscience of their members in terms of their legal rights and duties, thereby identifying conscience, group consciousness, and loyalty to the state. They thus attempt to preserve the ihnner strength, the inner mobility and flexibility, of relationships of family, commerce, labor, and so forth-by the formal definitions and processes of law itself. In this way they apparently seek to check the social disintegration, depwnalization, and disenclhantment which are produced by a mechanized, industrial, mass-production society. Of course law is not the sole means, or even the primary means, by which they strive to achieve this end. Informal influences, including both political and administrative pressures, play a more important part in shaping day-to-day decisions than does the official legal system. Yet law is one of the major instruments which the Communist Party uses to create the kind of society it wants. Soviet law cannot be understood unless it is reoognized that the whole Soviet society is itself conceived to be a single great family, a gigantic school, a ahurch, a labor union, a business enterprise. The state stands at its head, as the parent, the teacher, the priest, the chainman, the director. As the state, it acts officially through the legal system, but its purpose in so acting is to make its citizens into obedient children, good students, ardent believem, hard workers, successful managers. Thzis, indeed, is the essential characteristic of the law of a total state. . . . [pp. 364-3661 VICTOR H . L1 The Role o f Law in Coinrnunist China (1970)41 Two Models o f Law During the past 20 years, the Chinese Communists have made use of two different models of the relationship of law to the moulding and controlling of conduct, each having its own rationale and objectives. Depending on the period, m e mzodel or the other has been dominant, but on the whole, they have existed side by side in a combination of harmony and competition. The first model (for convenience, I will call it the "exte.rna1 model ") is based upon the establishment of a formal, detailed 'and usually written set of rules, that is, a legal code which defines permissible and impermissible conduct. A governmental organization enforces conlpliance with these rules, resolves ambiguities and settles disputm. This organization in turn has regulations of its own that 41 [From China Quarterly (1970),Part 4, p. 66.1 802 Marxist Theories of Law and State '1 e means specify the manner in which it should operate, and that prov'd for members of the public to obtain redress against i'mpmper official actions. Generally, the rules of law tend to be complicated and difficult to understand. Not only must they deal with the almost infinite variety of human conduct, but they must also contend with human ingenuity trying to get around the established rules. The legal system used to enforce these rules alm tends to be large and complex. Consequently, trained specialists are required to manage the legal bureaucracy and to act as legal advisors to the public. This model of law is similar to and derives mainly from the western legal concepts that were introduced into China at the beginning of t'i~ century, and reinfused into Chinese life with the adoption of Soviet legal institutions, method~s and thinking after Liberation in 1949. T o a lesser degree, this model also is influenced by traditional Chinese legal practices. Some of the early legalist philosophers (fa chia) had similar attitudes towards the role and function of law.42 More important, in spite of the Confucian disdain for formal coercive law, China has had for many centuries an active and complex legal system, mhus, as part of their complete with codes, courts, and the oultural hexitage, the Communists possessed some familiarity with the formal legal sy~stemand with centralized bureaucratic government. The adoption of the external model of law provides many advantages for the Chinese. Folr one thing, it makm the Chinese legal systenl more recognizable, and consequently more acceptable, to the west and to the Soviet Union. This is an important consideration, given China's past difficulties with western criticism of the Ohinwe legal system and with extra-territoriality. In addition, the external model provides a clear and ra$ionalized system of government and ad~ministration to nation-builders who are seeking clarity and rationality. It also strengthens central control. Through the mtablishment of legal rules and procedures, higher-level authorities not only can provide guidance for lower-level officials, but also c m restrict the soope of their discretionary powem. Through the medium of law, the public can kncnv when an official is acting improperly and can inform the higher-level authorities through the various complaint and appeal procedures. The legal system also is an effective means of controlling the public. In addition to maintaining a degree of public order, law oan be used to publicize and to enforce new social policies, as well as to monitw the implementation of and response to these policies. The seoond model of law (I will call it the " internal model ") is quite different. Proper modes of behaviour are taught not through written l a w , but rather through a lengthy and continuing educational process whereby a person first learns and then internalizes the socially accepted values and norms. Compliance is obtained not through fear of governmental punishment, but from a genuine understanding and 42 43 T'ung-tsu Ch'B, Lmu and Society in Traditional China (The Hague: Mouton, 1961); The Book o f Lord Shang, J. J . L. Duyvendak, trans. (London: Arthur Probsthain, 1928); The Complete Works o f Hun Fei, W . K . Liao, trans. (London : Arthur hobsthain, 1939 and 1959). See generally, Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases (Cambridge, Mass.: Harvard University Press, 1967); T'ung-tsu Ch'ii, Local Government Under the Ch'ing (Cambridge, Mass. : Haward University Press, 1962) ; SybiUe van der Sprenkel, Legal Institutions in Manchu China (London : Athlone Press, 1962). Victor H. Li acceptance of the proper rules of conduct. Where such self-control fails, social pressure arises spontaneously to correct and to oontrol the deviant. The coercive power of the state is used far enforcement only in the most serious cases in which the deviant is partioularly recalcitrant or depraved. Since each individual is deeply involved in bhe legal process, law mmt be very simple and must be capable of being applied without the help of skilled specialists. And, since enforcement is handled to a large extent by the community at large, ,the role of the state in legal administration is limited and the size of the legal bureaucracy is small. This model seems to include many tradi'tional Chinese ideas and practices. Espeoially striking is its si'milarity to the concept of li." Both rely heavily upon persuasion and education rather than f a c e , and upcm We use of social pressure rather than govmmental power, Both also stress the ilmportance of internalizing the rules of conduct and point out the ineffectiveness of using fear of punishment to make people behave. Indeed, if one substitutes the term "socialist morality " for "Confucian morality" and the term " c o m ~ a d e " for 'kchii tzu," one can use some of the Chinese classics to describe this model of law. While the traditional influences certainly are present, other factors are no less important. Communist Chinese ideology, for example, calls for the participati'on and involvement of the masses in all aspmts of government, including l a ~ . ~Some J degree of decisionmaking and sanctioning power also is granted to the masses, or at least to a local social group. Ideological commitment to the mass line is reinforced by some practical considerations. T o begin with, internalization of the socially accepted values and norms is a more effective means of controlling conduct than the use of coercive force, and self-policing is much cheaper than the employment of a vast state police apparatus. In addition, because of problems such as the size and variety of Chinese society, the difficulties of oommunication and the limited amount of available resources, Peking can exercise direct and strict control over local administration only in the mast Important matters. For most routine items, including much of the administration of the leeal svstem. it is more efficient and effective to wrmit a substantial degree of local autonomy. Fwther~nore, the cbmlmunists have a distrust of and a d'islike for bureauorats and bureaucratism. This is due in part to a reaction against the hlaticm land abuses of power by the traditional and Nationalist power-holders, and in part to a fear that an entrenched bureauoracy will not heed Party direction. As a result, the Party uses the masses to act as a check on official actions and as a counter-balance to official power. Other aspects of the internal model also reflect a combinat&on of traditional and non-Waditional influences. For example, the traditional practice of having members of the community handle most of the 7 44 (6 See B. Schwartz, in ed. Katz, Government Under Law and the Zndividual (1957), reprinted in J. Cohen, The Criminal Process in the People's Republic o f China, 194!&1963: An Zntroduction (1968), for an enlightening description of the meanings and functions of fa 'and ii. [And ante, 761.1 See generally, Jarnes R. Townsend, Political Participation in Communist China (Berkeley and Los Angeles: University of California Press, 1967). For a discussion of the relation of the mass line to legal work, see Stanley Lubman, " Mao and Mediation: Politics and Dispute Resolution in Communist China," California Law Review, No. 55 (November 1%7), p. 1284. 804 Marxist Theories ~f Law and State work of dispute settlement and control of deviant conduct prepared the way for the contemporary belief that legal administration does not require the services of sksiilled specialists. This traditional influence is reinforced by the Communists' own experiences. In the border and liberated areas which they occupied before 1949, there was little functional specialization in the government or the legal system. Cadres tended t o be jacks-of-all-trades. This worked fairly well since bhe areas were small, the societies they contained wwe simple and the cadres and bhe masses were highly motivated by the concerns of revolution and war. In addition, almost no legal specialists were available, even if the Communists had wanted to me them. This personnel problem was not alleviated aftex Liberation, even though the law schools and the practitioners remaiming from the Nationalist regime provided a small supply of legally trained persons. Consequently, legal bhwry and practice had t o be adjusted to enable generalists to operate the legal system. There are a number of areas where the external and internal models of law conflict or, a t least, pull in opposite directions. For example, the internal model stresses local initiative and decision-making power, and tolwates considerable variations in norms, methods and results from area to area. This runs counter to the external model's desire for clarity and certainty and emphasis on strong central government. The external model's reliance upon a professional bureauoracy and skilled specialists to administer the legal system in an efficient and rationalized manner conflicts with the internal model's com~mitmmtto simplicity and mass participation. The intmnal model also lacks bhe clear appeal procedures and chancnels of the external model, and therefore must find v q different means to protect the individual from arbitrary actions by officials or by members of his peer group. While the two models are quite dissimilar, some of their differences are more apparent in theory than in practice. Often the two models complement each other, with the external model handling serious matters and the intmnal model dealing with more routine affairs. Furthermore, the existence of the internal model usually does not preclude the simultaneous existence of the intwnal model. In general, a person does not learn what he can and cannot do by studying or referring to the legal codes. Most notions concerning proper and improper conduct are learned as part of the socializaticm process, a process whose concepts alnd practices greatly resemble those of the internal model. By the same token, over a period of time the internal model tends to evdve into the external model. In the ideal internal model, general patterns of proper conduct are truly internalized so that one " knows " what to do in each case. In many instances, however, this general understanding consists of or soon turns into a li& of specific precepts. These may be called li, rules of propriety and morality, or any obher legal o r non-legal name, but in due course they come to have much the same effect as the rules of law in the extennal model. Both the precepts and the rules of law tell one what to do in a particular situation; failure to comply results in sure and unpleasant consequences, although in the intennal model, these may be social o r economic sanctions rather than 40 blows of the heavy bamboo. In a similar manner, the informal style of the intemal model tends to ossify and to b e m e Victor H. Li 805 rigid and fomalized. With continued development and refinement, the legal system increases in complexity, and legal specialists are needed more and more to operate the system. At the same time, despite the emphasis on self-policing and community action, the legd bureaucracy tends to mow and the state comes to play a larger role in legal work. [pp. 72-76] The Cultural Revolution and the two models o f law I t is diffioult to write with assurance about the Cultural Revoluticm, since many of the events of that period are still unclear. Nevertheless, in the area of political-legal work several broad patterns of development can be swn, although there are variations, which are sometimes cmsiderable, from one pa'rt of the country to another. T o a large extent, these pattems reflect the continuing interplay of the external and the internal models of law. The initial stage of the Cultural Revolution was characterized by a further drastic decline in the position of the formal legal system. Begilnning in the summer of 1966, many Red Guard groups entered into, and in some instances even took over, political-legal work. They conducted investigations of theiir political enemies, carried out arrests, and through a variety of tribunals and mass meetings, adjudicated cases and imposed sanctions. The Red Guards sometimes worked in conjunction with the public security and the court, but often acted independently without reference to the formal legal organs. This by-passing of the formal legal system had occurred i~npast ca,mpaigns, of course, but never to such an extent nor in a manner so disorganized and so free from central control. The Cultural Revolution differed from past campaigns in one major respect: whereas bhe entire political-legal system was criticized again, the public security for the first time became the primary target of the attacks. These attacks came from several different directions. At the central level, the leaders of the Cultural Revolution accused the public security of being the stronghold of the anti-Mao group. Lin Piao said : Public security work had been under the control of P'eng Chm, Lo Jui-ch'ing, Lu Ting-i and Yang Shang-k'un-especially under P'eag Chen and Lo Jui-oh'ing-for seventeen years. They did not of cour~secarry out all things according to Mao Tse-tung's thought. . . . The thought of Chairman Mao has not yet establi&ed its dominance and absolute authority in the public security and judicial systems. Eisieh Fu-chlih, the Vice-Premier and Ministw of Public Security admitted : Our great leader Chairman Mao has told me on eight to ten occasions that thoroughgoing revolution must be carried out in the public security organs, procu,ratorates, and law courts, because the things copied fmm the Kuomintang and the Soviet revisionists have deep-rooted influence and P'eng Chen and Lo Jui-oh'ing had controlled them for more than ten years. 806 Marxist The~ries~f Law and State Chiang Ch'ing t d d of how she and Chairman Mao were shadowed, how their letters were censored, and how listening devices were installed in their residence. She demanded that "the public security organs, procuratorates and law courts must be completely smashed." The distrust of the entire public seourity system was reflected in one of Chairman Mao's " latest instructions " which provided : Public security organs are a klnife in bhe hands of the proletariat. If properly grasped, they can be used to attack the enemy and protect the people; if not, they can easily be used against us. If they are taken away by the enemy, there will be evm greater danger. Hence public security work can only be under the direct leadership of the Party Committee and cannot be under the vertical leadership of the relevant government department. Some of the attacks on the public security on the local level followed similax lines. Red Guard groups recognized very early in the Cultural Revoldion that the support of the public security was needed if the "reactionary powerholdea-S" were to be overthsow~n. One successful Red Guard gmup in Heilungkiang felt that they could " inlsltruct the rest of China how to do it," and suggested that " (b)efore seizing the power of the leadership of the provincial Party Committee, the newspapers and radio, as the voice of the proletariat revolution, and the Public Security Bureau, as an organ of the dictatorship, should first be seized." In many areas, however, the public security sided wilth the existibng powerholders against the Red Guards or, at least, in trying to preserve public order and to prevent violence, inhibited the actions of the Red Guards. The public security was attacked for this reactionary stance. The attacks quickly expanded to awusing the public security of always having been reactionary and of having been the tool by whjch leftist revolutionaries had been suppressed for more than 10 years. This organ was also criticized for having been t w lenient with class enemies. Following the Liu-P'eng-Lo line that class struggle was over, the public security adopted the erroneous position that "everyone is equal b e f o ~ ethe law," and thus failed to distinguish between the enemy and the people. Therefore, it became not a weapon of the working class in the class struggle, but rather a means by which reactionary persons could be protected. In addition to attacks on its po1,itical position, the public security was aiso criticized for having a bad work style. Many of these criticisms repeat the charges which were levelled against the judiciary and the external model of law in 1952 and 1957. For example, the public security was accused of not respecting the masses and of failing to implement the mass line. That is, as the public security cadres developed more professional expertise, they began to feel that the participation of the masses in public security work only contributed confusion and inefficiency. They believed instead that "cases must be handled by a small number of technically proficient expepts, and the masses of the people can do nothing in this respect." This reliance upon specialists and upon specialized techniques separated the public security from the people and rendered it difficult or imvomible for the Party i n d the m&& to supervise public security work. It also made public security cadres feel that they were somehow "spscial" and superior to the common psople. All. these factors contributed to the formation of an independent kingdom mentality within the public security. Reminiscent of some of the criticisms made agaibnst the retained K M T judges in the early 1950s, the personal style of the cadres was again attacked. " The capitalist roaders of the judicial organs also worshipped things of foreign and ancient origin. They abolished the revolutionary work style, and advocated that lawyers should attend court in European d'ress and pointed shoes, and assume the airs of bourgeois lords." More generally, the entire external model of law came undar criticism. The development of political-legal organs and the push for " strengthening the legal system " were called attempts to adopt wholes d e the feudal, capitahi'st and revisionist legal systems. Legal procedure once again was charged with causing undue confusion and wibh being a ruse by which justice could be thwarted. The use of lawyers was also denounced, since this led only to endless battles of words rather than t o concrete results. The very role of and need for law were called into question. T o begin with, since the Liu-P'eng-Lo group controlled the political-legal system, many if not most of the laws could be presumed to further the reactionary cause and to provide legal barriers behind which traitors could hide. Through the ruse of requiring strict adherence to law, this group "attempted t o fetter with law the instruments of diotatorship hand and foot, and prevent the masses of the people from daring to interfere with counter-revolutionary activities." On a deeper level, the " bolurgeob" position that law should be the ultimate guide for action was strongly criticized. Under this theory, the masses would take orders not from the Party, but from the law. The mrusses also would look to the law rather than to Chairman Mao's thoughts for guidance and inspiration. There was a renewed demand for fewer laws, not more laws, and even a call for " lawlessness." The transformation of the political-legal organs was accomplished in part by a revolt of the leftist elements wibhin these organs and in part by the entry of revolutionary mass organizations into political-legal work. The most important factor, however, was the decision " t o impose military control on all organs of diotatrvrship "-that is, on all political-legal organs. Three-way alliances were formed, consisting of members of the People's Liberation Army (PLA), revolutionary cadres, and the masses. In the public security, military oontrol committees of the PLA were placed over each organ. In addition, many public security cadres were purged and replaced with demobilized PLA men. In some areas, PLA soldiers were stationed within the public security organs. As the Cultural Revolution ran its course, a gradual effort was made to restore order and to re-establish lines of communication and control. Sometime around late 1967 or early 1968, the desire to smash the political-legal system began to give way to an attempt to strengthen this system and to rebuild it according to correct Maoist principles. Political-legal cadres were barred from joining mass organizations <M from participating in political demonstrations, and were ordered to be strictly subordinate to the local revolutionary committee. Mass organizations were urged to support the public security in its 808 Marxist Theories o f Law and State work, but they were also warned by Chou En-lai not to interfere in its internal rectification. At the same time, the central authorities tried to make use of law to re-establish their control. The term " according to law " appeared once again in many directives, and strict compliance with central regulations was urged. The mass line was also toned down somewhat on the theory that to let the masses decide everything would be " tailism " and would indicate a lack of leadership. It is difficult to assess the present position of the political-legal system. The formal legal organs continue to m a t e , but they appear to share their powers with a variety of informal bodies. Frvr example, one can find r e p m making it clear that the court still functions, but one can also find reports describing how other non-judicial tribunals adjudicate cases and impose sanctions. The most far-reaching change appears to have been the replacement of a large number of cadres who had considerable professional expertise and departmental ties, with a new group of cadres who have little experience in political-legal work or little loyalty to the political-legal system. Perhaps harking back to the early years after Liberation, there will be another period where functional lines are blurred and where the work style is loose and informal. [pp. 104-1091 R . QUINNEY Critique of Legal Order 45u The criminal law is used at home to maintain domestic order. Ruling class interests are secured by preventing any challenge to tihe moral and economic structure. In other words, the military abroad and law enforcement at home are two sides of the same phenomenon: the preservation of the interests of the ruling class. The weapons of control are in the hands of that class, and its response to any challenge is force and destruction. The weapons of crime control, as well as the idea and practice of law itself, are dominated by the ruling class. A stable capitalist order is in its interest. From this critical perspective, then, crime is worthy of the greatest consideration. T o understand crime radically is to understand the makings and workings of the American empire. Law as an Arm of the Ruling Class What, then, is the nature of this ruling class as reflected in criminal matters? It is composed of (1) members of the upper economic class (those who own or control the means of production) and (2) thaw who benefit in some way from the present capitalist economic system. It is engaged in legal concerns for the purpose of preserving the capitalist order, including the welfare state associated with that order. Even when laws regulating morality are made and enforced, the intention is to [pp. 55-56] preserve the moral and ideological basis of capitalism. . . . 45a [From Richard Qulnney, Critique o f Legal Order: Crime Control in Capitalist Society, pp. 55-56, 186-192. Copyright 0 1974, 19?3 by Little Brown and Company (Inc.). Reprinted by permission.] R. Quinney 809 . . . What, then, is the economic and political nature of criminal policymaking in America? My argument is that the ruling class formulates criminal policy for the preservation of domestic order, an order that assures the social and economic hegemony of the capitalist system. . . . b. 591 The Socialist Alternative 46 The alternative to a capitalist society-and its associated legal syetemis a socialist society. As we struggle to create such a world, we can only present a vision of the socialist society. We cannot-nor should we-specify a utopia, because a socialist society will be construed only in the course of the creation. Moreover: Any real alternatives to capitalism will be historically linked to the forces and movements generated by the contradictions of capitalist society itself. New institutions which li'berate rather than oppress can only be created by real people confronting concrete problems in their lives and developing new means to overcome oppression. The political movements arising from capitalism's contradictions therefore constitute the only means for society to move from its present condiltion to a new and more decent form, and only out of these movements will humane as well as practical new institutions be generatedSd7 A socialist society will allow for the fulfillment of certain human values. As the authors of The Capitalist System write, after their extensive critique of capitalism : A truly socialist society would be characterized by equality: equality in sharing the material benefits of the society; equality rather than hierarchy in making social decisions; and equality in society's encouragement to develop one's full potentials. Work must cease to be a means of " making one's living " and become non-alienated, a part of one's living. Arbitrary distinctions by race and sex (or language or eye color) would cease to be criteria for particular fonns of oppression or for tracking people into limited opportunities. The irrationality of production for profits would be transformed into the rationality of production to satisfy people's needs, and the unequal relations of imperialism would be replaced by a cooperative ethic recognizing people's responsibility to each other.4R These values will be realized in the process of daily life in a socialist society. Socialism means many diKerent things and can take a variety of forms. This is also to say that various systems have been improperly called socialist. Historically the objective d one kind of socialism has been to nationalize all major activities in the country and to centralize the state bureaucracy. This is state-socialism as practised in the Soviet 47 [The following passage exemplifies in would-be Marxist terms the endless, and some may think chimerical, quest for an ideal society. Man's nature. is the victim of an alien law (derived from capitalism). Freed from this a new order will emerge based on " equality." For this chimera all the hard-won legal safeguards of our democratic society (however imperfect) are to be jettisoned and replaced by who knows what (cf. Dennis Lloyd, The Idea of Law, Chaps. 1 and 2).] Edwards, Reich, and Weisskopf. The Capitalist System, p. 520. 48 Ibid. 46 Marxist The~ries~f Law and State Union and some East European countries. In state-socialism there is government intervention into the economy, sometimes to promote capitalism, as in Sweden. Furthermore, a welfare state may be established as a refonn measure to make the contradictions of capitalism, bureaucracy, and class oppression manageable and also tderable to those subjected to such a regime. There is little in these societies that promotes t,he true socialist values of cooperation, equality, participatory democracy, and freedom. In contrast to state-socialism is democratic socialism. As a process, democratic socialism can be described in this way: Most fundamen~tally,socialism means democratic, decentralized and participatory control for the individual: it means having a say in the decisions that affect one's life. Such a participatory form of socialism certainly requires equal access for all to material and cultural resources, which in turn requires the abolition of private ownership of capital and the redistribution of wealth. But it also calls for socialist men and women to eliminate alienating, destructive forms of production, consumption, education and social relations. Participatory socialism requires the elimination d bureaucracies and all hierarchical forms and their replacement, not by new state or party bureaucracies, but by a self-governing and self-managing people with directly chosen representatives subject to recall and replacement. Participatory socialism entails a sense of egalitarian cooperation, of solidarity of people with one anobher; but at the same time it respects individual and group differences and guarantees individual rights. It affords to all individuals the freedom to exercise human rights and civil liberties that are not mere abstractions but have concrete day-to-day meaning.49 As we are coming to realize in our study of the unknown Marx, Karl Marx considered democracy to be the basis of socialism. In contrast to other theorists of his time, including other socialists, Marx insisted upon the democratic character of socialism.50 In his later work as well as in the earlier work, Marx insisted that socialism can only develop in the course of a democratic mass movement. With the emerging contradictions of capitalism and t'he development of a political consciousness among those subjected to capitalism, a sociali* society will be created collectively and democratically. In addition to the democratic ideal evident in Marxian theory, there is the socialist image of human possibilities. As we are finding in our reading of Grundrisse, the most basic statement of Marx's perspective, Marx held that only under the appropriate conditions can human possibilities be realized.51 In the course of the socialist revolution, a person is transformed into a new being, into the authentic species-being. This new human nature is one that is totally liberated from the society of acquisitive individualism, as found in capitalist society. In the movement from a capitalist society to a socialist society, 49 50 51 Ibid. See Michael Harrington, Socialism (New York: Saturday Review Press, 1972), pp. 36-54. Marx, Grundrisse, pp. 59-76, 148-152. Also see, James M. Glass, " Marx, Kafka and Jung: The Appearance of Species-being," Politics & Society, 2 (Winter, 1972), pp. 255-271. R. Quinney then, the human being no longer suffers the alienation otherwise inherent in the relations of capitalism. The socialist vision is one of human liberation. According to the new understanding of Marxism, therefore, the human being is realized in the struggle for a true democracy, a socialist society. Marx then arrives at the conclusion that this process will lead to the dissolution of the state. The state eventually may be abolished or altered in a socialist society, since the state (at least as constituted under capitalism) is based on class divisions, is characterized by centralized authority, and is dominated by bureaucracy. Without the eventual abolition of the state, these conditions and forces may continue to expand, into state-socialism or state capitalism, negating the realization of a true democratic socialism. The state serves to separate the political person from civil society, dividing members of society among themselves.s2 In a socialist society there is no longer the need for the kind of state we know under capitalism. Our consideration of the alternatives leads us to the role of law in socialist society. As I have argued throughout, the capitalist state is a tool of the ruling class, maintaining the dominance of that class over the classes oppressed by the capitalist system. The capitalist state, in turn, makes and enforces law for the purpose of securing and perpetuating the interests of the capitalist ruling class. The legal order of the capitalist state is a device to maintain the domestic social and economic order. It follows from this, then, that the capitalist state and its legal system can continue to exist only as long as there is need to secure the dominance of the ruling class. With the achievement of a socialist society, devoid of classes, bureaucracy, and centralized authority (that is, characterized by equality, participatory democracy, and decentralized control), the state may no longer be necessary. And following this, there may be no state law. Law as we know it today will be relegated to the history of a former age. It is not my purpose here to outline a socialist society, including details about law. Rather, the exact nature of the society and its own fonns of regulation will be worked out in the struggle of building a socialist society. J only want to indicate the direction of a socialist alternative to capitalist society and its legal system. In doing this I begin with the idea that law, instead of being an embodiment of community custom, is symptoinatic of the emergence of the state. Stanley Diamond has observed : " Law is the instrument of civilization, of political society sanctioned by organized force, presumably above society at large, and buttressing a new set of social interests. Law and custom both involve the regulation of behavior but their characters are entirely distinct; no evolutionary balance has been struck between developing law and custom, traditional-or emergent." 53 Law is, and continues to serve as, the means of enforcing the interests of the state and the ruling class. Therefore, a legal order became necessary only when the state 52 53 David McLellan, Marx Before Marxism (New York: Harper & Row, 1970), pp. 119-129. Also see Ernest Mandel, The Marxist Theory o f the State (New York : Pathfinder Press, 1969). Stanley Diamond, "The Rule of Law Versus the Order of Custom," in Robert Paul Wolff (ed.), The Rule of Law (New York: Simon and Schuster, 1971), p. 120. [ C f . ante, 702.1 812 Marxist Theories o f Law and State broke down communal solidarity and divided the group into conflicting factions. I n the early states, crimes were invented t o serve the needs of the state; that is, legal sanctions were needed to protect the new interests of the emerging state. Rather than healing any breaches of custom, law protected the sovereign. The state necessarily broke up customary patterns, in the interest d economic and political dominance, and instituted a legal system to enforce its sovereignty. With this understanding of the legal order, we begin to see that law is the antonym rather than the synonym of order. Law has its origins in the pathology of social relations brought about by the state itself. Diamond writes: "Law arises in the breach of a prior customary order and increases in force with the conflicts that divide political societies internally and among themselves. Law and order is the historical illusion; law versus order is the historical reality." 54 Modern capitalist society, with its state and legal order, is the one least likely to serve as a guide for building a human society. In building a socialist society, therefore, we may turn to the idea of custom, rather than law, for the patterning of our daily lives. Life, instead of being controlled by the rigid mechanisms of the state, is to be lived collectively with others, in harmony with nature and fellow human beings. There is no need for a legal order, as known under capitalism, in the social relations of a socialist society.55 A contemporary experience that gives support to the possibility of community custom is the case of revolutionary Cuba.56 The alternative to national law in this case, and a transitional move to the abolition of law, is the emergence of the popular tribunaLS7 Neighborhoods in Cuba now have their own courts, staffed by personnel elected democratically from within the community. Little emphasis is placed on sanctions of any kind. Instead, violators continue to be educated in the community. Custom plays an educative role in the community, rather than a punitive one. What is important is maintaining peace and understanding in the community rather than enforcement of a legal system. There are, of course, other arrangements that may serve a socialist society. For example, perhaps there will be several different levels of community, according to specific functions.58 Communities will likely arrange themselves according to territorial considerations. There may be functions that can be best served on a general state level, serving all the people. Whatever forms emerge in a socialist society, they will be achieved democratically and will be for the collective liberation of the people, rather than for the benefit of the ruling class, removing the alienation and oppression of former arrangements. Such an existence is impossible in a capitalist society. 54 55 56 57 58 Ibid., p. 140. Michael E. Tigar, " Socialist Law and Legal Institutions," in Robert Lefcour~t (ed.), Law Against the People: Essays to Demystify Law, Order and the Courts (New York: Random House, 1971), pp. 327-347. [There is a characteristic irony in the author's readiness to support his case from the social system of a ruthless dictatorship.] Jesse Berman, "The Cuban Popular Tribunals," Columbia Law Review, 69 (December, 1969), pp. 1317-1354. See Gar Alperovitz, "Notes Toward a Pluralist Commonwealth," Review of Radical Political Economics, 4 (Summer, 1972), pp. 2848. R. Quinney 813 As students of law and crime, and as socialists, our task is to consider the alternative to the capitalist legal order. Further study of the American legal system must be devded to the contradictions of the existing legal order. At this advanced stage of capitalist development, law is little more than a rigid and repressive means of manipulation and control. We must make others aware of the current meaning of law and crime control in capitalist society. The objective is to move beyond the existing legal order. And this means ultimately that we are engaged in a socialist revolution. [pp. 186-1 921 CONSTITUTION OF T H E PEOPLE'S REPUBLIC OF CHINA 59 (1 978) CHAPTER I : GENERAL PRINCIPLES Article 1. The People's Republic of China is a socialist state of the dictatorship of the proletariat led by the working class and based on the alliance of workers and peasants. Article 2. The Communist Party of China is the core of leadership of the whole Chinese people. The working class exercises leadership over the state through its vanguard, the Communist Party of China. The guiding ideology of the People's Republic of China is MamismLeninism-Mao Tsetung thought. Article 3. All power in the People's Republic of China belongs to the people. The organs through which the people exercise state power are the National People's Congress and the local People's Congresses at various levels. The National People's Congress, the local People's Congresses at various levels, and all other organs of state practice democratic centralism. . . . Article 5. There are mainly two kinds of ownership of the means of production in the People's Republic of China at the present stage: socialist ownership by the whole people, and socialist collective ownership by the working people. The state all'ows non-agricultural individual laborers to engage in individual labor involving no exploitation of others, within the limits permitted by law and under unified arrangements and management by organisations at the basic level in cities and towns or in rural areas. At the same time, it guides these individual laborers step-by-step onto the road of socialist collectivization. Article 6. The state sector of the economy, that is, the socialist sector owned by the whole people, is the leading force in the national economy.. . . Article 9. The state protects the right of citizens to own lawfully earned income, savings, houses, and other means of livelihood. Article 10. The state applies the socialist principle: "he who does 59 [Taken from Review o f Socialist Law, vol. 4, no. 3, p. 247 (1978). It is discussed by De Heer in 4 Rev.Soc. Law 309. See further on law in China today Jones, 4 Rev.Soc. Law 3, Munzel idem, p. 323 and Jones idem, p. 329, and Cohen 68 J.Crim. Law and Criminology 323 (1977).] 814 Marxist Theories of LmY and Stcate not work, neither shall he eat " and " from each according to his ability, to each according to his work." Work is an honorable duty for every citizen able to work. The state promotes socialist labor emulation, and, putting proletarian politics in command, it applies the policy of combining moral encouragement with material reward, with the stress on the former, in order to heighten citizens' socialist enthusiasm and creativeness in work. . . . Article 41. The Supreme People's Court, local people's courts a t various levels, and special people's courts exercise judicial authority. The people's courts are formed as prescribed by law. In accordance with law, the people's courts apply the system whereby representatives of the masses participate as assessors in administering justice. With regard to major counter-revolutionary or criminal cases, the masses should be drawn in for discussion and suggestions. All cases in the people's courts are heard in public, except those involving special circumstances as prescribed by law. The accused has the right to defense. . . . CHAPTER 111: THE FUNDAMENTAL RIGHTS AND JXJTIES OF CITIZENS Article 45. Citizens enjoy freedom of speech, correspondence, the press, assembly, association, procession, demonstration, and the freedom to strike, and have the right to "speak out freely, air their views fully, hold great debates, and write big-character posters.". . . Article 56. Citizens must support the leadership of the Communist Party of China, support the socialist system, safeguard the unification of the motherland and the unity of all nationalities in our country, and abide by the Constitution and the law.