Marxism and legal theory

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About two months ago, when news broke that Chief Justice Antonin Scalia had died, my friend and esteemed comrade Donald Parkinson of the Communist League of Tampa wrote: “
Scalia isn’t enough; lets see the whole rule of law die.”

Within minutes the thread was flooded with responses, many of them hostile. Incredulous that someone would propose to abolish the rule of law altogether — not just of bourgeois  law, but of law as such — one person objected: “You’re saying socialism won’t be enforced by law? No stop signs?” Donald deftly replied that, during the transition to “a higher phase of communist society,” there will only be the decrees of the proletariat. Perhaps some of these would be temporarily formalized as laws, but with the disappearance of class conflict so too would laws of any sort disappear.

The person angrily commenting was not satisfied with this answer. Insisting that law needn’t be “political” in the sense meant by Marx, as if the function of law could be somehow separated from the repressive role of the state, he continued: “Okay so if a drunk fuck husband beats his wife and the police intervene, what bourgeois interests are being fulfilled?” My initial reaction was a bit captious: “Husbands and wives under communism? Not my communism.” But as to the more fundamental matter the state, I responded that legislation would still fall to some sort of governing authority that would be charged with determining what the laws should be. For Marx, law or right [Recht] would wither away with the shift to communism.

Even among avowed Marxists, this sort of reification of the law is increasingly common. Domenico Losurdo, a Stalinist political philosopher, has abandoned the Marxist doctrine of the progressive dissolution of the state. If scholars like Losurdo feel Lenin was too “leftist” for upholding this principle, others find Lenin’s commentary on the character of the state too conservative or bound to Second International conceptions. My friend Pavel Minorski wondered how “the figure who most clearly exposed Social Democratic opportunism and provided the clearest statement of the need to smash the bourgeois state could then go on to write about how the dictatorship of the proletariat would be ‘the bourgeois state without the bourgeoisie’.”

Nevertheless, I think that Lenin’s line of reasoning was correct regarding “the bourgeois state without the bourgeoisie.” Marx talked about the persistence of bourgeois law or right [Recht] up to the advent of a higher form of communist society. From this conclusion it follows that the state administering legislation would be the Rechtstaat, i.e. the modern class state that emerged gradually out of the wreckage of the ancien régime (the Standestaat, which was based on unique privileges of special estates). Here is Lenin’s gloss on the passage by Marx in the Critique of the Gotha Program, which in turn appears in State and Revolution:

In its first phase, or first stage, communism cannot as yet be fully mature economically and entirely free from traditions or vestiges of capitalism. Hence the interesting phenomenon that communism in its first phase retains “the narrow horizon of bourgeois law”. Of course, bourgeois law in regard to the distribution of consumer goods inevitably presupposes the existence of the bourgeois state, for law is nothing without an apparatus capable of enforcing the observance of the rules of law. It follows that under communism there remains for a time not only bourgeois law, but even the bourgeois state, without the bourgeoisie!

This may sound like a paradox or simply a dialectical conundrum of which Marxism is often accused by people who have not taken the slightest trouble to study its extraordinarily profound content. But in fact, remnants of the old, surviving in the new, confront us in life at every step, both in nature and in society. And Marx did not arbitrarily insert a scrap of “bourgeois” law into communism, but indicated what is economically and politically inevitable in a society emerging out of the womb of capitalism.

Strictly speaking, there is a certain redundancy in the term “bourgeois right,” though it’s helpful to reiterate at times. “Right” itself is bourgeois, something universally possessed by free and equal citizens who have reached a certain age (some positive rights are reserved for adults, like voting or drinking or whatever). Classically, right would be opposed to privilege, explicitly tied to title or rank within a noble or priestly order. This is why those who reduce Marxism to “fighting for equal rights,” or for “human rights,” are so profoundly mistaken. Marxism aims at the transcendence of right altogether.

Marxist legal theorists debated many of these same issues in the first decade following the October Revolution. You can read a few exemplary pieces illustrating this below. What is perhaps most striking about these texts is the incredibly high level of debate, both the theoretical subtlety and practical urgency that saturate them. They are taken from an old book released by Johns Hopkins on Soviet Political Thought. Download the rest of them this link: Michael Jaworskyj, Soviet Political Thought: An Anthology (1967). Not only are they of merely historical interest, either. They have a very contemporary relevance as well, insofar as many seem to believe that Marxism is preoccupied chiefly with social justice, economic inequalities, and redistribution of wealth. Goikhbarg’s piece destroys these misconceptions.

Also see Evgenii Bronislavovich Pashukanis, The General Theory of Law and Marxism and Franz Neumann and Otto Kirchheimer, The Rule of Law under Siege: Selected Essays for more on Marxist theories of law.

the constitution

“Law and right are inherited like an eternal disease”

Pëtr Ivanovich Stuchka
October Upheaval and Proletarian
Dictatorship
(Moscow, 1919)
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If, in considering the law, we have in mind only its bourgeois meaning, then we cannot speak of a proletarian law, for the goal of the socialist revolution is to abolish law and to replace it with a new socialist order. To a bourgeois legal theorist, the term “law” is indissolubly tied in with the idea of the state as an organ of protection and as an instrument of coercion in the hands of the ruling class. With the fall or rather the dying away of the state, law in the bourgeois meaning of the term also dies away. When we speak of a proletarian law, we have in mind law of the transition period, law in the period of the dictatorship of the proletariat, or law of a socialist society, law in a completely new meaning of the term. For, with the abolition of the state as an organ of oppression in the hands of one class or another, the relationships between men, the social order, will be regulated not by means of coercion but by means of the conscious good will of the workers, that is, the will of the entire new society.

In this respect the tasks of bourgeois revolutions were considerably easier than the task of a socialist revolution. Voltaire’s revolutionary statement is well known: “If you intend to have good laws, then burn the old and create new ones.” We know that this requirement was not fulfilled by any bourgeois upheaval, not even by the great French Revolution. The latter mercilessly burned feudal castles and the titles to these castles, liquidated privileges and the holders of these privileges, and replaced the feudal system with a bourgeois one. Notwithstanding, the oppression of man by man survived, and some old laws remained unburned and binding. The legal monument of the French Revolution — Napoleon’s Civil Code — came into being only ten years after the Revolution (1804), and only after the victory of the counterrevolution.

In one of his earlier writings (1843), Marx vividly outlined the basic difference between bourgeois and socialist revolutions: “A bourgeois revolution dissolves old feudal forms of organization through the political emancipation of independent persons, without tying and subordinating them to a new economic form… It divides the person into man and citizen, whereby all the socioeconomic relationships of citizens belong to the sphere of their private affairs which are of no interest to the state… Man appears to be leading a double life, a heavenly and an earthly life, in the political community, where he is a citizen, and in a bourgeois society, where he acts as a private person and either looks upon other men as means, or lowers himself to a means or a toy in the hands of others.” Private interests are indifferent, for, regardless of whether a man in bourgeois society is satisfied or hungry, whether he is physically fit or incapacitated, whether he has time to satisfy his spiritual needs, this is his private affair, the egoistic interest of each separate person, with which the state does not interfere. “The state can be turned into a free state without turning man into a free man.”

What the bourgeois revolutions did was merely to put into power a new class in place of the old one, or along with the old, and to change the form of the organization of state power. The mode of oppression was freely changed without changing the text of old laws. The continuity of law seems to be the essence of the stability of human society, which is based on the principle of exploitation of man by man. Thus, the laws of slaveholding Rome survived not only the feudal system but even all phases in the development of capitalism, imperialism included:

Es erben sich, Gesetz und Recht
Wie eine ewige Krankheit fort
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Bourgeois revolution did not always adhere to Voltaire’s words; it did not burn old laws as resolutely as it should, and when it burned them it failed to eradicate them from the minds of the people. As pointed out by Renner, “The human mind is a reliable storehouse in which Moses’ stone tables with his commandments are as real as any recent decree issued by the government; in it the ancient historical elements are interwoven with contemporary elements into a single reality.” This is the source of all theories of the divine origin of such institutions as sacred property, the “inborn” character of class privileges, the “natural right” of the master to the services of the worker, etc.

Whereas socialist theory is a merciless critique of everything in existence, the proletarian revolution is a merciless destroyer of the existing state and social system… As in other fields, in the field of law the proletarian revolution is first to fulfill the prerequisites of true democracy. It translates Voltaire’s words into reality and solemnly throws into the fire the sixteen volumes of The Collection of Laws of the Russian Empire together with its empire and its imperialism. Some of our revolutionaries tried in vain to preserve some of its parts spared by fire…, instead of creating new, truly revolutionary law.

The proletarian revolution calls for creativity. It must be courageous, not only in a destructive work, but also in a law-creating role. It may seem that the references to the old law in the decrees of the Workers-Peasants government are highly inappropriate, for the laws of the earlier governments should have been burned. But the socialist upheaval is not simply a leap into the unknown. It is a protracted, more or less long process of civil war, a process that results in the transformation of the bourgeois social system, with its division into classes of oppressors and oppressed, into a socialist system. This transition period requires a special transitional law, in part because the bourgeois system cannot be transformed into a socialist system instantly, and in part because the old system remains in existence in people’s minds as a past tradition. This feeling prevails also among all strata of the proletariat, which are merely awakening now and still “whirl in the traditional ideology and nourish themselves with the intellectual leavings of the bourgeoisie.”

The Workers-Peasants Revolution found a formula that correctly solves this problem. The Decree on Court (No. 1) asserts that new courts are “guided in their decisions and verdicts by laws of the overthrown government only if they were not repealed by the Revolution and are not contradictory to revolutionary conscience and revolutionary law consciousness.” This, on the one hand, was an answer to the attempts to retain old laws that, although burned, were still living in people’s minds. On the other hand, this was an answer to our right-wing Marxists, who reproached us for having anarchistic tendencies, namely, for our rejection of the laws of earlier governments.

I then gave the following answer to our opponents:

Gentlemen, what do you understand under the protection of the rule of law? The protection of the law which belongs to the past social epoch, law that was made by the representatives of social interests that are no longer in existence or are passing away, interests that are contradictory to the needs of society? Social system is not based on law. This is a juridical prejudice. On the contrary, law should be based on the existing social system…, law inevitably changes with the changing conditions of life. Protection of old law at the expense of the needs and demands of social development is in essence nothing but a protection of obsolete separate interests at the expense of the present-day interests of the entire society. Such defenders of the rule of law proclaim as governing the interests that in fact are no longer governing. Such a defense thrusts upon society laws that are contradictory to the conditions of life and even to the mode of production… Such phrases about the rule of law constitute either a conscious deception or an unconscious self-deception.

What was the reaction to my answer? Some Marxists stigmatized my answer as anarchistic, and I had to reveal the secret that it was taken literally from Karl Marx’s famous speech, delivered to a trial jury in Cologne. No, we are not anarchists; we assign a great, and at times perhaps even too great a significance to law, but only to law of the new system.

Like any state, the Workers-Peasants Soviet Republic is a class state, but its task is not the oppression of the poor in the interest of a clique of the rich; on the contrary, its task is the dictatorship of the poor, i.e., the overwhelming majority, for “the suppression of an insignificant minority, that is, the bourgeoisie, with the aim to liquidate the exploitation of man by man and to establish socialism under which there will be no division into classes and no state authority.” A unification of the working citizen and the workingman into a whole takes place in the Soviet Republic.

All revolutions begin with the destruction of Montesquieu’s theory of the division of powers… The Soviet authority, which came into being in the R.S.F.S.R., on October 25, 1917, is at the same time legislative, executive, and judicial authority. It does not reject a technical division of labor, but it rejects the hypocritical theory of the independence of one branch from another. The dictatorship of the proletariat and of the poor peasants constitutes a single power.2

We are told that even today, two years after the October Revolution, we do not yet have a written proletarian law. We could answer that the great French Revolution came into possession of the Civil Code only fifteen years after the Revolution, and only after the victory of the counterrevolution. But, as always, we are frank and therefore we state directly that such a written proletarian code will never come into existence in our country. When we speak of the proletarian law, we have in mind a transient law.

Our great achievement in the revolution of law is a clear understanding of the meaning of law and court. “Law is a system or an order of social relationships, corresponding to the interests of the ruling class and protected by an organized force.” Hence, without classes, there will be no class organization (the state), no law, and no courts.

Notes


1 “Law and right are inherited like an eternal disease.”
2 The following part is taken from P. Stuchka, “Nizverzhenie Prava” [The Overthrow of Law], published at the end of 1919 and reprinted in P. Stuchka, 13 Let Borby za Revolutsionno-Marksistskuyu Teoriyu Prava [Thirteen years of Struggle for the Revolutionary Marxist Theory of Law] (Moscow, 1931), pp. 227-28.

krasnaya niva

The withering away of law

Ivan Petrovich Podvolotskii
The Marxist Theory of Law
(Moscow-Petrograd, 1923)
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“Are we also in the sphere of law growing organically into the state of the future, or should we find our own ‘social law’ — which would replace the bourgeois law — by means of contemplation…?” “Our present work is devoted to the conversion of law and, in particular, to the transformation of the bourgeois law into the social law of the future society.” So reasons Karner,1 while Magerovskii simply speaks of “socialist law.”

Apart from small mistakes, such reasoning contains two colossal errors. First, we do not wait for a peaceful transformation of the bourgeois state and law; instead, we destroy them and replace them with our own proletarian class state and our own system of proletarian law. Second, after the revolution, the process of the transformation of society into communism will not be accompanied by the transformation of the proletarian state and proletarian law into the state and law of the future society or into the “socialist law.” On the contrary, both will gradually wither away.

Regarding the state, Lenin has examined its future quite thoroughly in his book State and Revolution. Regarding law, we have made an attempt to state the views of Marx and Engels. According to their views, law is a class phenomenon and, consequently, the transformation of bourgeois law into socialist law is inconceivable. Bourgeois law must be destroyed and replaced with a system of proletarian law. Now our task is to demonstrate that no law will exist in a communist society.

The task of the proletarian dictatorship is to destroy classes and class antagonism in society. The proletariat cannot accomplish this task without law. Naturally, with the transfer of all means of production to the hands of society, the bourgeois class, qua class, will begin to disappear. Also, its resistance to new social order will disappear. Consequently, law, the role of which is to sanction the existing social relationships, will not be needed as long as these relationships are observed voluntarily.

However, in spite of the fact that the means of production will be in the hands of society, the productivity of labor will not permit, during the first period of communism, a completely free distribution of products. The slogan “from each according to his abilities, and to each according to his needs” will not have materialized. Consequently, it will still be necessary for society to organize the distribution of products in conformity with certain principles.

Earlier, we quoted Marx as saying that, during the first period of communist society, an equal remuneration is in fact unequal and unjust, because people are unequal in terms of their abilities, family situation, etc. This is why Marx designated the equal remuneration of individuals for their work — which results in inequality — as “bourgeois law.”

We indicated earlier that to both Marx and Lenin the expression “bourgeois law” had a relative meaning. We also stated that in the transition period “bourgeois law” exists only in form, not in content. The same applies to what Marx designated as “bourgeois law” in the first period of communism. In this stage of communism, bourgeois law no longer exists; there is only “law,” in quotation marks”law” which is withering away. It is still “law,” though in very big quotation marks, because, in spite of the socialization of the means of production and, consequently, the impossibility of exploitation, the revival of opposition against the existing social relationships is still possible on the part of the previously exploiting class, which has not gotten rid of its ideology.

To be sure, however, the transformation of “law” into simple social norms is possible in the first period of communism if the antagonistic groups and class antagonisms in general disappear. Therefore, the phenomenon designated by Marx as “bourgeois law” will be neither “bourgeois law” nor law in general, because, in view of the fact that classes and class antagonisms disappear, there will be no domination by one part of humanity over another, and society will become united. These are no longer norms established by a class in its own interest, to which society must subordinate itself. These are simply norms for the distribution of products, norms established by the unified society itself. Distributed products (though not necessarily equally distributed) cannot become means for the domination of man by man, because the means of production are in the hands of society and the relationships between people are no longer disguised in a fetish-like veil. As stated by Marx and Engels, “Communism will prevent no man from appropriating the products of society; all that it does is to deprive him of the opportunity to subjugate the labor of others by means of such appropriation.”2

Thus, while losing their legal character, the norms for the distribution of products will still remain in the first period of communist society. But, as this society develops,

in a higher phase of communist society, when the enslaving subordination of man to the division of labor, and with it the antithesis between mental and physical labor, has vanished; when labor is no longer merely a means of life but has become life’s principal need; when the productive forces have also increased with all-around development of the individual and all the springs of social wealth flow more abundantly — only then will it be possible to transcend completely the narrow outlook of bourgeois law and only then will society be able to inscribe on its banners: “From each according to his ability, to each according to his needs.”3

We indicated earlier that under “bourgeois law” Marx understood simply the norms of the distribution of products. In a completely developed communist society these norms will become obsolete and will thus wither away. Since each man will be able to get products according to his needs, the norms of distribution will be as necessary for society as the right to walk on two legs.

Naturally, we do not deny the possibility of excesses by some members of communist society; such excesses will be the behavior of defective persons, a manifestation of atavism, the eructation of the class past on the part of some persons. It is quite obvious that these singular cases will call for an attentive attitude on the part of society: medical treatment and influence, applied from case to case. But no a priori fixed, obligatory norms will be needed, as no norms prohibiting certain conduct to mental patients are now needed.

Consequently, neither law nor any other norms will be transformed or regenerated into social norms; they wither away because of their obsolescence. As pointed out by Marx,

Undoubtedly, it will be said, religious, moral, philosophical, political, and legal forms have been modified in the course of historical development. But religion, morality, philosophy, politics, and law constantly survived this change.

There are, besides, eternal truths, such as freedom, justice, etc., that are common to all phases of social development. But communism destroys eternal truths, it destroys all religion and morality, instead of constituting them on a new basis; it therefore acts in contradiction to all past historical development.

What does this accusation reduce itself to? The history of all past societies was founded on class contradictions, contradictions that assumed different forms in different epochs. But whatever form they may have taken, the exploitation of one part of society by the other is a fact common to all past ages. No wonder, then, that the social consciousness of past ages, despite all the multiplicity and variety it displays, moves within certain common forms, forms of consciousness, which will vanish completely only with the total, disappearance of class contradictions. The communist revolution is the most radical rupture with traditional property relations; no wonder that its development involves the most radical rupture with traditional ideas.4

Thus, law, which expressed interests of the ruling class attributed to the whole society, existed at all stages of class society. Hence, by its very nature, law is an instrument of suppression and inequality. In vain some quasi-Marxists think of “transforming” it into a “social” law equal for all. With the disappearance of classes and social antagonisms, when society will become a society of equals, when it will be recognized by all as such, and when social ideas will be accepted by each member of society as his own, then there will be no need for law. Then, this flower of class society, from which the fragrance of sweat and blood emanates, will fall into decay and will die away, because it will lose the ground on which it grew up, the ground of tears, sweat, blood, class oppression, slavery, and exploitation.

Notes


1 Sotsialnye Funktsii Prava [The Social Functions of Law] (Moscow, 1923), pp. 4-6.
2 Kommunisticheskii Manifest [The Communist Manifesto] (n.p., n.d.).
3 Kritika Gotskoi Programmy [Critique of the Gotha Program] (n.p., n.d.).
4 Kommunisticheskii Manifest.

red moscow

Civil liberties: A bourgeois deception

Ivan Petrovich Podvolotskii
The Marxist Theory of Law
(Moscow-Petrograd, 1923)
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Imitators of Marxism exclaim self-righteously: “But what about the freedom of the individual, press, speech, assembly, etc., etc.? Are they also, in your judgment, class rights and not individual rights?”

These “freedoms” have succeeded in revealing their ungainly class nature to the extent that there is hardly anything to be said about them. But since necessity forces us to prove that black is black, we shall refer our “Marxists” to Marx himself. “For the first time,” says Marx, “I used the expression ‘modern mythology’ as a designation for the goddesses of ‘Justice, Freedom, and Equality,’ who are beginning to reign once again.”1

Thus, to Marx, all this is a mythology — a deception. Freedom, equality, are to Marx as unreal as goddesses. Nevertheless, some “Marxists” are intoxicated with “freedom,” “equality,” etc., and extol them as eternal and pure truths. But an abstract, eternal freedom was alien to Marx. “Be not deceived by an abstract word: freedom. The question is, ‘Whose freedom?’ This word does not signify man’s freedom from other men. It signifies the freedom of the capitalist to suppress the worker.”2

This is the way Marx posed the question. To him an eternal goddess of freedom — the fetish of freedom — is nonexistent; what does exist is only freedom for a certain class. In a capitalist society, it is the freedom of the capitalists to suppress the working class.

We shall quote a long paragraph from Marx’s The Eighteenth Brumaire hoping that the quasi-Marxist blockheads will be able to see that freedom in a capitalist society is freedom for capitalists alone.

The inevitable general staff of the liberties of 1848, personal liberty, liberty of the press, of speech, of association, of assembly, of education and religion, etc., received a constitutional uniform which made them invulnerable. For each of these liberties is proclaimed as the absolute right of the French citoyen, but always with the marginal note that it is unlimited insofar as it is not limited by the “equal rights of others and the public safety” or by “laws” that are intended to mediate just this harmony of the individual liberties with one another and with the public safety. For example: “The citizens have the right of association, of peaceful and unarmed assembly, of petition, and of expressing their opinions, whether in the press or in any other way. The enjoyment of these rights has no limit save the equal rights of others and the public safety.” (Chapter II of the French Constitution, Art. 8.) — ”Education is free. Freedom of education shall be enjoyed under the conditions fixed by law and under the supreme control of the state.” (Ibid., Art. 9.) — ”The home of every citizen is inviolable except in the forms prescribed by law.” (Chapter II, Art. 3.) Etc., etc. — The Constitution, therefore, constantly refers to future organic laws that are to put into effect those marginal notes and regulate the enjoyment of these unrestricted liberties in such manner that they will collide neither with one another nor with the public safety. And later, these organic laws were brought into being by the friends of order, and all those liberties were regulated in such a manner that the bourgeoisie in its enjoyment of them finds itself unhindered by the equal rights of the other classes. Where it forbids these liberties entirely to “the others” or permits enjoyment of them under conditions that are just so many police traps, this always happens solely in the interest of “public safety,” that is, the safety of the bourgeoisie, as the Constitution prescribes. In the sequel, both sides accordingly appeal with complete justice to the Constitution: the friends of order, who abrogated all these liberties, as well as the democrats, who demanded all of them. For each paragraph of the Constitution contains its own antithesis, its own Upper and Lower Houses, namely, liberty in the general phrase, abrogation of liberty in the marginal note. Thus, so long as the name of freedom was respected and only its actual realization prevented — of course, in a legal way — the constitutional existence of liberty remained intact, inviolate, however mortal the blows dealt to its existence in actual life.

Engels’ views are in full conformity with those of Marx: “The so-called rights of man…were in fact restricted by the bourgeois ruling class; the suppressed class has always been deprived of them either directly or indirectly.”3

In examining social relationships, Marx and Engels have discovered that freedom in a capitalist society signifies the freedom of capitalists to protect the “social safety” of their system, and that the rights of the suppressed classes amount to nothing. But some “Marxists” consult only constitutions and find in them solemn proclamations of eternal and universal freedom. Consequently, they fail to see that this freedom does not exist in reality, for its existence would be contrary to the interests of “social safety.” There are, however, other reasons responsible for the fact that the “freedom” of the proletariat in a capitalist system is a fiction, a deception. These reasons are independent of the fact that capitalism permits and protects only the “freedom” that does not conflict with the “social safety,” i.e., with the domination of the capitalist class. Under conditions of the economic domination of the bourgeoisie, the freedom of private property is transformed into the privilege of capital, into a right favoring the capitalist system and domination by capitalists. Equally, under the conditions of economic and political domination by capital, freedom and democracy are instruments of the bourgeoisie in suppressing the exploited classes. As stated by Marx, “Slavery in the bourgeois society creates an appearance of full freedom, for it appears as a legal form of individual independence…, whereas, in fact, it is a complete enslavement and a complete rejection of man. In the bourgeois society, right took the place of privilege.”4

The bourgeoisie possesses entire economic power, whereas the proletariat possesses nothing. Because of the economic power of the bourgeoisie, “freedom” and “democracy” remain a fraudulent claim; it is “freedom” of the bourgeoisie to exploit the working class. As pointed out by Engels, “Political freedom is a false freedom, worse than the worst type of slavery; it is an illusory freedom and, consequently, a true slavery. The same applies to political equality.”5

Such is the problem of freedom, seen apart from political oppression and moral enslavement. It should be kept in mind, though, that the bourgeoisie holds in its hands political power in addition to control over prisons, the army, churches, and schools. The bourgeoisie oppresses economically but it also enslaves people morally; if the latter two fail, the bourgeoisie resorts to the employment of sheer physical force. With the increase of oppression, the bourgeoisie calls on its agents in the labor movement to increase the extolling of bourgeois freedom and democracy.

The proletarian revolution will put an end to bourgeois “freedom.” The dictatorship of the proletariat will destroy the bourgeois system and will bring forth a classless, communist society, a society without class antagonisms and, consequently, without the state and law. Only in a classless society, in a society without state and law, will man be free. It is absurd to speak of freedom under the law; law is incompatible with freedom. Consequently, in a society where freedom prevails, there will be no law.

Notes


1 Letter to Engels, August 1, 1877.
2 Karl Marx, Rech o Svobode Torgovli [Speech on Freedom of Trade] (Moscow, n.d.), p. 30.
3 Proiskhozhdenie Semi, Chastnoi Sobstvennosti i Gosudarstva [The Origin of the Family, Private Property, and the State] (Petersburg, 1920[?]), p. 54.
4 Svyatoe Semeistvo [The Holy Family] (n.p., n.d.), p. 255.
5 Die Neue Zeit, XXVIII, 428.

constitution lenin's face

Justice, the ideology of law, and revolution

Aleksandr Grigorievich Goikhbarg
Foundations of the Private Property
Law
(Moscow-Petrograd, 1924)
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With the grace of God, the feudal state was a religious state. On the other hand, the bourgeoisie designated its state as a Rechtsstaat, as a state of law. Religion and law are the ideologies of the suppressing classes, the latter gradually replacing the former. Since we must, at the present time, fiercely struggle against religious ideology, we will, in the future, have to struggle against the ideology of law to a considerably greater degree. Any conscious proletarian either knows or has heard that religion is the opium of the people. But only a few, in my opinion, know that law is an even more poisoning and stupefying opium for the people. In his The Eighteenth Brumaire, Karl Marx stated that “the traditions of the deceased generations haunt the minds of the living like a nightmare.” The difficulty in getting rid of these stupefying traditions depends upon the degree to which these traditions have been inculcated in the minds of the present generation. The difficulties are especially great when a generation has been inculcated with more recent traditions.

Law is more recent than religion, and, therefore, the struggle against the idea of law, the idea that serves the interests of the exploiting classes, is considerably more difficult than the struggle against religious ideas. Since this struggle will be considerably more difficult, anti-law propaganda should become a more pressing task for us than antireligious propaganda. Law is the new sanctuary of the exploiting classes, a sanctuary that replaced the religious one. Having abandoned the ideology of religion, these classes seek shelter in the ideology of law. The degree to which the idea of law governs those minds that are seemingly free of the religious opium can be seen from the following example. Indeed, it is either difficult or inconceivable to imagine that a party that pretends to be a revolutionary socialist party would make the defense of religion part of its political program. It took place, though, in the case of law. In opposition to the slogan of the Social Democrats: “Proletarians of all countries unite,” the Socialist Revolutionary party advanced its own slogan: “In the struggle you shall gain your right.” Needless to say, if one would ask the Social Revolutionaries of what right they speak, they would answer that they are concerned not with a bad, but with a good, true people’s right. But this answer would disclose even more lucidly the degree to which they are trapped in the captivity of the idea of law, and the degree to which the tradition of bourgeois law haunts their minds like a nightmare.

Quite a few sins of this type are committed by Communists. It may suffice to mention our “revolutionary consciousness of law,” “proletarian consciousness of law,” and “socialist consciousness of law.” These concepts were derived from an assumption that there is a certain everlasting, immutable law, which was misapplied in the various epochs preceding the Soviet epoch. However, the great hostility and aversion that Karl Marx expressed in treating the concept of law and the very idea of “right” are well known. In describing his participation in formulating the statute of the first international society of workers (First International), Marx stated the following: “My proposals were all accepted by the subcommittee. Only, I was obliged to insert two phrases, one about ‘duty’ and ‘right,’ another about ‘truth, morality, and justice.’ But these are placed in such a way that they can do no harm.”1

To be sure, however, I would like at the very beginning to remove the possibility of any misunderstandings. Speaking of the necessity to conduct anti-law propaganda, I naturally intend neither to encourage disobedience of the rules established by the Soviet authority, nor to encourage insubordination to what we call the Soviet law. Indeed, it would be very nice if we could do without this expression, if we could replace it with another.

The concept of law is cloaked with such a mystical veil and is associated in the minds of the “living generations’’ with such enigmatic experiences that it would be extremely desirable to replace it with a new concept, with a concept that would embrace the regulating norms and the organizational rules which we are forced to use in the transition period preceding the final and universal victory of communism. There are, however, some terms that, so to speak, are being suckled with mother’s milk. The term “law” is one of them.

In any case, our generation, which experienced the proletarian revolution, but which was born during prerevolutionary conditions, will not relinquish this term. It will be good if future generations succeed in giving it up. It is quite possible to separate this term completely from the idealist mystery in which it is cloaked, to impregnate it with real content, and to give it the meaning which it should preserve for the time being: the meaning of a correct norm, of an expedient rule, a rule realizing the goal for which it was created. Thus, in such a sense, the term “right” was used by Lenin in his speech directed against the so-called freedom of the press. Arguing for the right of the Soviet authority to suppress the bourgeois press, he reminded me that after the February revolution the bourgeois authority had closed the monarchistic press, and added: “If the bourgeoisie was right in closing the monarchistic press, then we have the right to close the bourgeois press.”2 In other words, Lenin conceived of the law as being an expedient rule, a rule which we, judging from its results, were right in creating. Here the term “law” is deprived of any ideological veil, of any absolute character, of inalienability, of immutability, and of eternity.

To what degree some free minds — and even one of the founders of socialism, the leader of the German working movement, Ferdinand Lassalle — were under the influence of the idea of law, can be seen in their works. After reading Lassalle’s The System of Acquired Rights, Engels wrote the following to Marx:

Lassalle is full of prejudice; he still believes in the “idea of law,” in the absolute law. For the most part, his statements against Hegel’s philosophy of law are correct, yet his own new philosophy is far from being correct. Purely from the viewpoint of philosophy, he should have advanced to the point at which he would be able to see that the only absolute is the historical process and not the temporary results of this process; without the historical process the idea of law would not have appeared.

But, whereas Lassalle had not advanced far enough to reject the absolute character of law, the ideologists of the bourgeoisie simply identify law as a natural property of man. They speak of “our sense of law” as one of the external senses. They contend that the sense of law, the legal instinct, is innate in man. Earlier it was contended that man is a religious being, and that the religious sense is innate in man. Then, the same contention was advanced in connection with law: man is a legal being. The latter view is the essence of Petrazhitskii’s theory, which attracted so many proponents among the intelligentsia, even among the revolutionary intelligentsia who called themselves Marxists. The psychological theory of law — a theory which asserts that law is spawned in man’s psyche and that it constitutes an everlasting and ineradicable property of man — does not merely correspond to the interests of the bourgeoisie; it expresses the fundamental view of a bourgeois, according to which his right to property, to the means of production, and to pocket the fruits of other men’s labor is eternal and will never die or discontinue. This bourgeois view has also been adopted by the representatives of non-capitalistic producers, by the representatives of petty bourgeois democracy, and by bourgeois ideologists. But even more, this idea was adopted by the workers. As stated by Marx, “In social conditions that are dominated by capitalistic production, even the non-capitalistic producer is subject to capitalistic ideas.”3

Therefore, bourgeois ideologists will not be held responsible for the adherence to such ideas. It is not their fault, but their misfortune. No one can (speaking of mass occurrences) separate himself from the ideological atmosphere that surrounds him and in which he grows up and becomes educated. As stated by Marx, “From my point of view more than from any other, an individual cannot be held responsible for the social conditions of which he is a product, however subjectively he may strive to elevate himself above them.”4 Indeed, not even persons who have discovered the relative, historical, and transitional meaning of these ideas are capable of liberating themselves from them. The best example of this is the ingenious Marxist Paul Lafargue, Marx’s son-in-law. Having subjected the metaphysical ideas of justice (i.e., of law) and freedom to a devastating plebeian critique, he stated:

Belfort Bax reproaches my contemptuous attitude toward justice, freedom, and other features of bourgeois metaphysics; he says that these ideas are so universal and inevitable that even in my critique of their bourgeois versions I employ certain ideals of justice and freedom. Needless to say, neither the extremist philosopher-spiritualists nor I can escape the influence of its ideas; each uses his own ideas as the criteria for judging the ideas and the conduct of other people. But, whereas certain ideas are inevitable in the social setting in which they came into being, it does not follow that they, like mathematical axioms, are inevitable in other social conditions.5

At the time when Lafargue wrote these lines, Belfort Bax was a socialist like Lafargue and belonged to the same proletarian international (Second). The bourgeois ideas of justice, law, etc., appeared to him to be eternally existing. Lafargue unmasked these ideas, proved that they are not sacred and that they serve the selfish and dirty interests of the capitalist ruling class. But many leaders of the Second International, who later became outspoken servants of the bourgeoisie, were “filled with indignation” at his critique of bourgeois ideas. Lafargue answered them with penetrating irony:

Vandervelde and other comrades are shocked by my disrespectful and rather “extremist” manner of unmasking everlasting ideas and principles. To treat Justice, Freedom, or the Fatherland as metaphysical and ethical prostitutes being sold in the academic and parliamentary speeches and electoral programs…! This is sacrilege! Had these comrades lived at the time of the Encyclopedists, they would have thrown the same accusations at Diderot and Voltaire, who seized the aristocratic ideology and submitted it to the trial of their reason, who poked fun at the sacred principles of Christianity, at the Orleans Virgin, at the blue-blooded aristocracy, at divine law, and at other divine things.6

Lafargue demonstrated quite clearly that those who defend the idea of law (justice) in the bourgeois system are as reactionary as those who defended the idea of divine law in the transition period of feudal to bourgeois law. Though ideologists should not be held responsible for their ideologies, nevertheless — when our ideologists, living in the transition period from the bourgeois to the communist system, continue to advance the bourgeois idea of law as eternal truth, an idea serving the interests of the bourgeoisie — one cannot refrain from using Marx’s expression in characterizing these people as a “slavish herd of imitators” (servum pecus imitatorum). Furthermore, one cannot refrain from stating that they became “petty peddlers of commodities produced by big foreign firms” and that they use a “method…that is characterized by the romanticism of other professions, whereas their theories are but popular preconceptions derived from the superficial, external appearance of things…”7

The views asserting that man is a legal being and that a legal sense is an innate property of man are also popular preconceptions derived from the most superficial external appearance of things. In general, the social qualities of man are not natural but artificial, historically transitional properties. Marx denied that social qualities are innate in man, with the exception of man’s inherent propensity to be a social being. He demonstrated that Aristotle’s definition of man as a political being is invalid. Marx stated: “Man by his very nature is an animal, ‘though not a political but, in any case, a social animal’.” To this he added: “Strictly speaking, Aristotle’s definition asserts that man, by his very nature, is the citizen of the city-republic [ζῷον πολιτικόν]. This conception has been as characteristic of classical antiquity as Franklin’s definition of man as a tool-making animal [homo faber] was for the Yankee age.”

The assumption that bourgeois law is an innate quality of man is tantamount to the eternalization of bourgeois relationships. It is for this reason that a defense of this view is identical to supporting the interests of the bourgeoisie. Because of this Marx severely refuted this view: “Nature does not produce, on the one side, owners of money or commodities, and, on the other, men possessing nothing but their own labor power. This relationship was neither created by nature nor is it a social relationship common to all historical periods. It is clearly the result of past historical development, the product of many economic revolutions, the product of the extinction of a whole series of older formations of social production.”8 Capitalist relationships are the result of the extinction of feudal and simple commodity relationships. Hence, capitalist law is nothing but the form of these historically transitional relationships.

The ingenious Marxist thinker Lafargue, who mercilessly and vigorously struggled against any forms of bourgeois ideology, thoroughly analyzed the idea of law (justice) and revealed its true nature. A French bourgeois philosopher contends that “justice (i.e., law) is eternal, though it only gradually permeates man’s spirit and social reality.” At the same time, however, he claims that the process of the gradual permeation of justice has reached its culmination point in the bourgeois system. Commenting on this view, Lafargue ironically stated that “bourgeois society and bourgeois thought are thus the ultimate and the highest manifestations of immanent justice.” The progress of justice (law) came to an end with the establishment of the bourgeois system. As pointed out by Lafargue, “The bourgeoisie interpreted its conquest of power as immeasurable social progress, whereas the aristocracy interpreted it as a ruinous regressive movement.” The bourgeoisie identified progress with the liquidation of the aristocracy. Following the defeat of the aristocracy…by the French Revolution…, the bourgeois idea of progress began to view itself as the only legitimate representative of progress. The bourgeoisie contended, quite conscientiously, that its customs, morals, virtues, private and public morality, and its mode of production and exchange were the most progressive. Prior to the bourgeois revolution, ignorance, barbarism, injustice, and insanity prevailed. After the bourgeois revolution, as stated by Hegel, “for the first time the Idea began to govern the world.” The social domination of the bourgeoisie became identified with the reign of reason.

This was the first step toward the theory which asserted that progress ceased with the conquest of political power by the bourgeoisie. The idea of progress and evolution was very popular in the early part of the nineteenth century, when the bourgeoisie was still intoxicated with its political victory and with the startling growth of its economic wealth. But, with the appearance of the proletariat in the political arena in England and France, the bourgeoisie became troubled with the preservation of its domination, and the idea of progress lost its original fascination for it. Since then, the idea of progress has ceased to be of importance in the ideology of the bourgeoisie. Its ideas are eternal and hence not subject to any change. Its law, too, is eternal law. Nothing is progressive for the bourgeoisie, unless it leads to its own victory. Since the aim of progressive development is the transition of the social dictatorship into the hands of the bourgeoisie, and since this aim has been achieved, progress has ceased. Assuming that the transfer of authority into its hands was the only progressive event of history, the bourgeoisie is, in fact, convinced that the seizure of power by the proletariat would be, as Herbert Spencer contended, tantamount to the return to barbarism and “serfdom.” To be sure, however, the aristocracy thought the same of the bourgeoisie.

The bourgeoisie is compelled to conceal the unattractive nakedness of its system with eternal ideas, ideas of justice, of law, etc. Oscar Wilde said that, when a woman uses strong perfume, she has something to conceal. According to Lafargue, the same is true of the bourgeoisie.

No other ruling class has ever shouted so much about ideals, for no ruling class has ever been in need of concealing its actions to the same degree with an ideological twaddle. In the hands of the bourgeoisie, ideological charlatanism became the most reliable and most effective means of political and economic deception. Nevertheless, the striking conflict between word and deed prevents neither historians’ nor philosophers from maintaining that eternal ideas and principles are the exclusive moving forces of the history of the peoples living in a bourgeois system. Such an unheard-of error by historians and philosophers…serves as an indisputable proof of the immense power of ideas, and, at the same time, as a proof of the adroitness of the bourgeoisie, which succeeded in cultivating and exploiting this power for its benefit.

The idea of law (justice) most appropriately serves the interests of the exploiting class and holds the masses in subordination.

The ruling class always declares everything that serves its political and economic interests to be just and everything that is in conflict with such interests unjust. Justice, in its understanding, is realized only when its class interests are satisfied… Therefore, ironically, justice is depicted with a cover over its eyes, in order to prevent it from seeing the trite and dirty interests it protects. The feudal and guild organizations, which were detrimental to the interests of the bourgeoisie, had been unjust in their opinion. Therefore, they were destroyed by immanent justice. Bourgeois historians contend that justice could not suffer the armed robbery of the feudal barons, who used robbery as the exclusive method for increasing their land holdings and augmenting their power. Nevertheless, this does not prevent venerable, immanent justice from approving armed robberies committed by a peaceful bourgeois…in “barbarian” countries of the new and the old world… In the name of law, immanent justice solemnly approves and permits only economic robberies, robberies that the bourgeoisie, without any special effort, commits daily against hired labor. Economic robbery corresponds to the temperament and character of this justice, and, therefore, it willingly assumes the duty of the watch dog of the bourgeois wealth which, obviously, is nothing but a legal and just accumulation of plundered wealth.

Justice, which according to philosophers governs in a bourgeois society, directs man toward a peaceful and happy future. In fact, however, it is the other way around: it is a fecund mother of diverse injustices. In the past, justice gave to slaveholders the right to possess a man as an animal; at the present time it gives the right to the capitalist to exploit proletarian children, women, and men like pack animals. Justice placed the lash in the hands of the slaveholder and kindled his hearth when he whipped the slave; now, again, justice permits the capitalist to take the surplus value, which is produced by hired labor, and it leaves his conscience at rest when he compensates labor with starvation wages, the labor that is the source of the capitalist’s wealth. I use my right, contended the slaveholder when he whipped the slave; I use my right, contends the capitalist, when he openly steals the hireling’s labor.9

The bourgeoisie is not merely unwilling to recognize the transitional character of its legal institutions, it even exempts them from the influence of simple progress, change, and development. “The bourgeoisie and its most educated representatives go even further in their attempts to restrain the course of progress; they remove from its influence a whole number of social organisms of the utmost significance. Economists, historians, and philosophers, who seek to prove that…the patriarchic form of the family and the individual form of property are not subject to change, contend that these forms were in existence at all times.”10

I shall demonstrate in a few examples how powerful the idea of law is in the hands of the exploiting class, which by means of this idea keeps the exploited classes in check. The actions that lead to the same socially detrimental consequences either provoke aversion and indignation on the part of the broad masses of the people or are received in an indifferent way, depending upon whether or not they are in violation of the law. For example, an incestuous person, a man cohabiting with his daughter or mother, is subject to loathing. Incest is contrary to the “elementary principles of law.” In antiquity, Xenophon explained the reasons underlying the prohibition of incestuous marriages: they produce sick children. Soon incestuous cohabitation threatens the populace with degeneration, sickness, and premature death.

It would seem, then, that whenever a certain human conduct threatens other people with degeneration, premature death, etc., such conduct should always arouse “social” indignation… But when such conduct brings forth benefits to dominant groups, it is declared to be in conformity with “law,” and does not arouse condemnation. The relationship of the capitalists to the workers during the entire nineteenth century, and indeed now, has entailed degeneration, an increase of the death rate, sickness, and suffering, in comparison to which incest appears to be of no significance. In his The Situation of the Working Class in England, Engels indicted the bourgeoisie for the mass murder of the workers…

Capitalists have looked quite coolly at the death and mutilations of workers, which could have been prevented with the expense of a few dollars. (See, for example, statistics cited by Marx on a flax mill where six cases of death and sixty extensive mutilations were counted, which could have been prevented by providing safety devices at the expense of a few shillings…) This conduct of the capitalists is not contradictory to the “principles of law”; their behavior is in conformity with the “law”; and hence they are considered to be decent men, who are not the object of condemnation.

The stealing of bourgeois private property is also contrary to the “elementary principles of law.” Consequently, you can leave an average bourgeois in your apartment without any surveillance: he will not steal anything from you. But the stealing of a worker’s time, of his labor — even if it is contrary to legislative acts which determine the hours and conditions of work — is not contrary to the “law,” and hence is not dishonorable…

In contemporary bourgeois society, law plays the same role as Christianity played in the ancient world of slavery. In his The Origin of Christianity, Kautsky arrived at the conclusion that “the ancient world held slaves solely by means of fear. Christianity for the first time elevated weak-willed submissiveness to the level of a moral obligation that should be performed with joy!”11 Likewise, the bourgeoisie, instead of employing naked force, prefers to entangle the exploited masses in the invisible ties of a legal ideology that is preached by philosophers and jurists for a small fee. We refuse to see in the law a certain idea that could prove to be beneficial to the working class, to the proletariat. At a certain time this idea made sense, but at the present time it is superfluous in the ideology of the proletariat. Consequently, it is indispensable to exterminate this idea from proletarian minds. Criticizing the Gotha Program, Marx wrote in 1875:

I have dealt more extensively with “equal right” and “just distribution,” in order to show what a crime it is to attempt, on the one hand, to force on our Party again, as dogmas, ideas which in a certain period had some meaning but which now have become obsolete, verbal rubbish, while again perverting, on the other hand, the realistic outlook which it cost so much effort to instill into the Party, but which has now taken root in it, by means of ideological nonsense about right and other trash so common among the democrats and French Socialists.12

A disclosure of the ideological and almost religious disguise of law is not alone sufficient for its realistic understanding, an understanding implicit in all teachings of Marxism. It is equally indispensable to explain the appearance and the development of legal ideas corresponding to the social relations that generated them. Looking from this point of view, it can easily be proved that at the present time these ideas are survivals of earlier periods and social conditions. In his letters to Engels (August 1, 1877) and Sorge (October 19, 1877), Marx designated these ideas of justice, equality, and freedom as “modern mythology,” as a “new mythology” that some would put in the place of the materialistic basis of socialism. This, according to Marx, requires serious objective study. It is considerably easier to criticize this mythology than to explain it in terms of the economic relations that generated it, a procedure that is the requirement of the Marxist method. Speaking of religion, and this is applicable to all ideologies, Marx stated the following: “Indeed, it is much easier, by means of an analysis, to find the kernels of fantastic religious conceptions than it is to deduce religious forms from certain real life relationships. The latter method is materialistic and, consequently, is a scientific method.”13 The quoted view was restated by Engels in a letter to Conrad Schmidt on August 5, 1890. “In general, the word materialistic,” writes Engels, “serves many of the younger writers in Germany as a mere phrase with which anything and everything is labeled without further study; they stick on this label and then think they have disposed of the question. But our conception of history is, above all, a guide to study, not a lever for construction after the manner of the Hegelians. All history must be studied anew; the conditions of the existence of the different formations of society must be individually examined before an attempt is made to deduce from them the political, civil-legal, aesthetic, philosophic, religious, etc.,. notions corresponding to them. Only a little has been done here, up to now, because only a few people have got down to it seriously. In this field we can utilize unlimited help; it is immensely big and anyone who will work seriously can achieve a lot and distinguish himself.”

Hence, it is not enough to advance a critique of legal ideology. It is indispensable to determine, step by step, which living conditions gave rise to the corresponding legal ideas, and how these legal ideas were preserved as an instrument of suppression, even after they ceased to correspond to the earlier conditions. An attempt in this direction will be made in the following chapters.

In conclusion, a few words should be added on the future of law. The legal norms, which we called correct rules coercively prescribing human conduct, stripped of the halo of “sanctity,” will be preserved even after all legal ideas have been exterminated from human minds. Concerning religion — the “old mythology” — Marx stated: “The religious reflection of the actual world will disappear only when the relationships of men’s practical daily lives are expressed in a clear and reasonable connection between them and nature.”14 The same applies to the “new mythology,” to the legal reflection of the actual world, to legal ideas and conceptions. Speaking of two types of justice, retributive and distributive, which lie at the basis of law (the former of criminal law, the latter of civil law), Lafargue noted: “The barbarian replaced spilled blood with property; property replaced man; man in a civilized society has only rights given him by property. The communist revolution, which abolishes private property and gives to everybody the same things, will free man and will regenerate the spirit of equality. Then the idea of justice which has haunted man’s mind since the time of the creation of private property will disappear as an old nightmare tormenting wretched civilized humanity.”15

With the disappearance of the idea of law, coercive rules, or what are traditionally known as legal norms, will also disappear. In the Critique of the Gotha Program, Marx proved that all law is an expression of inequality. Consequently, with the disappearance of all exploitation and all inequality, i.e., with the complete accession of the communist system, the necessity for coercive rules, which at the present time are called laws, will disappear completely. If, as stated by Marx in his Critique of the Gotha Program, “law can never elevate itself above the economic structure and the cultural development determined by this structure,” then, with the advance of the economic structure of society to the level of complete communism, the high cultural development conditioned thereby will render superfluous and unnecessary any coercive regulation of human relations. The results, which in the transition period were achieved by means of coercive norms, will be attained by themselves because they will be rooted in the nature of the economic relations of that time.

From the above-said it follows that the legislation of the proletarian state should not be influenced by any presumed, eternally existing concept of law and that it can and should reject the “new mythology.” In establishing definite rules, proletarian legislation must take into consideration only their expediency, i.e., the question of whether or not or to what extent these rules achieve the goals for which they were created. But bourgeois ideology in this sphere sets up invisible and dangerous traps. The “new mythology,” driven out through the door, comes back through the window. We are being told that, from the political point of view, the creation of an unlimited scope of rights is inevitable. A scope as unlimited as it was at the beginning of the past century after the fall of feudalism and the establishment of the bourgeois system. We hear from different sources that instead of limiting rights it is indispensable to establish the broadest possible scope of rights, because even the smallest restriction…will weaken the stimulus of economic activity and accumulation. They tell us that our policy — according to which our state grants rights only for the purpose of developing the forces of production and revokes them if their application produces results contradictory to the intended socioeconomic purpose, and interferes, in the interest of society, with the relationships that previously were known as private — as in conflict with the sound sense of individualism innate in each man. Individualism, that is, freedom of exploitation, presented as an exclusive stimulus of man’s activity, is being advanced as an eternally existing frame of mind, or truth, whose existence is not determined by social conditions and hence is not subject to extermination under changed conditions.

It stands to reason, though, that individualism is not a permanent feature of human nature at all. Its origin, existence, and, consequently, its disappearance, are determined by the conditions of social life.

At any rate, in the period of bourgeois trusts, cartels, syndicates, etc., individualism is not and cannot be the dominating frame of mind. Neither can it become the dominating principle, determining mass activities, in the transition period of the Soviet Union…

We grant private property rights only with the aim of developing the forces of production of our country. Consequently, contrary to bourgeois “legal-political principles,” which aim at protecting the interests of one or another group of the exploiting class, we have established the following rule: rights are granted only if they are conducive to the development of the forces of production, i.e., to the development of the entire national economy, the objective of which is to satisfy the needs of the popular masses. This principle is clear; it does not aim at protecting the interests of the individual groups dominating the masses but, on the contrary, is willing to sacrifice the interests of individual persons for the attainment of the general goal.

While living in Soviet countries, in the transition period from the capitalist toward the communist system, we consciously strive for the development of the forces of production. The development of the forces of production is our direct and immediate goal. Therefore, we undertake measures, establish rules, and grant “rights” within the scope dictated by our goals.

Hence, it does not mean that the character of the rights granted by us is immutable, i.e., not subject to change and not subject to restrictions and expansions. It was indicated above that the French bourgeois revolution took place almost a hundred years after the English Revolution, and, consequently, having taken place under more mature conditions, did away with feudalism completely. That means that the English bourgeois revolution, which took place a hundred years earlier than the French Revolution and, consequently, under less mature conditions, preserved many feudal features up until the present time. The proletarian revolutions also are carried out under diverse and more or less mature conditions.

Our revolution took place earlier than in other countries, and hence under less mature conditions. In addition, it was accomplished in a most economically backward country. The forthcoming revolution in Germany will take place not only later but also under more mature economic conditions than those existing in our country six years ago. It will do away with the survivors of the bourgeois system in a more radical manner. There, the development of the forces of production will call for the granting of fewer “rights” than in our country. Even fewer “rights” will have to be granted in America. The decrease of these “rights” in our country can take place only commensurably with the development of the forces of production and the maturation of our conditions. The dynamic process of the development of the forces of production will reduce the scope of the unavoidable concessions to the previous regime. Our legislators must always take this process under consideration; otherwise, to quote Marx, this process will, by itself, “correct the arbitrary violations committed by the state authority.”

Notes


1 Marx, Letter to Engels, November 4, 1864.
2 See John Reed, Desyat Dnei, Kot or ye Potryasly Mir [Ten Days That Shook the World] (Moscow, 1923).
3 Kapital [Capital] in Karl Marx and Friedrich Engels, Sobranie Sochinenii [Collected Works] (Moscow, 1922), VI, 13.
4 Kapital [Capital] (Moscow, 1923), I, xxxiii.
5 Ekonomicheskii Determinizm Karla Marksa [Karl Marx’s Economic Determinism] (Moscow, 1923), p. 55.
6 Ibid.
7 Karl Marx, Kapital, in Marx and Engels, Sobranie Sochinenii, III, 384.
8 Kapital (1923), I, 139.
9 Lafargue, Ekonomicheskii Determinizm, pp. 49-54.
10 Ibid. I quote Lafargue so frequently because he is the only one who, with unusual vigor, has “seized by the throat” bourgeois ideology.
11 Proiskhozhdenie Khristianstva [The Origin of Christianity] (Moscow, 1923), p. 351.
12 Kritika Gotskoi Programmy [Critique of the Gotha Program] (Petrograd, 1919), p. 19.
13 Kapital (1923), I, 349.
14 Ibid., pp. 46-47.
15 Ekonomicheskii Determinizm, p. 138.

2 thoughts on “Marxism and legal theory

  1. I find the entire discussion so endearing … that someone in 2016 can still make a Marxist argument about anything is like watching a country girl making lace or perhaps a member of some forgotten Amazonian tribe weaving baskets. So quaint and primitive and yet beautiful.

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