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.
“Law and right are inherited like an eternal disease”
Pëtr Ivanovich Stuchka
October Upheaval and Proletarian
Dictatorship (Moscow, 1919)
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.1
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.