You are on page 1of 91

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 de-
velopments 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
1On which see Avineri, The Social and Political Thought o f Karl Marx (1968),
McLellan, Karl Marx-His Life and Thought (1973), Bottomore, The Sociolo-
gical 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 Acci-
dents (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.
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 progres-
sively unfolded itself, revealing more of its true nature in later
periods than in earlier. The dialectic was the clue to this develop-
ment. 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, how-
ever, " 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 Marx's critique of existing materialism is to be found in his Concerning Feuerbach
(see Early Writings (Penguin ed., 1975), pp. 421-423).
8 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.
9 Per Avineri, Social and Political Thought o f Marx (1968), pp. 8-9. C f . ante, 281.
'0 For Hegel, the law of contradiction produced, in the form of thesis and ante-
thesis, 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."
11 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 com-
bination of Hegel's dialectic and a materialist theory of knowledge
produced dialectical materialism, and this, applied to human rela-
tions 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 indepen-
dent 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

PHILOSOPHY
MARXAND HEGEL'SPOLITICAL
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 Feuer-
bach, " 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 ab-
stracted 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 Post, 728. Marx never in fact used the expression. He referred to the
" materialist conception of history " (McLellan, Marx (1975), p. 38).

13 Quoted from Feuer, op. cit., pp. 186-187.


14 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).
15 Per Avineri, o p . cit., p. 16.
16 In Early Writings (Penguin ed.), p. 423.
17 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 media-
tion of the two by means of political representation was, Marx
believed, misconceived. The delegates of civil society in a repre-
sentative 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 particu-
laristic, 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 rela-
tions 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

18 Per Avineri, Social and Political Thought of Marx, p. 17.


19 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.
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 condi-
tions determining their production." What individuals are " co-
incides 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 instru-
ments 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 co-
operative. 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 produc-
tive 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 steam-
mill, 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
27 Quoted idem, p. 27.
28 Marx and Engels, The German Ideology, p. 31.
29 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).
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 lead-
ing 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-cen-
tury 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 Post, 766.
36 Cf. ante, 356.
37 Ante, 632.
38 Folkways (1906).
39 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 circum-
stances " (he lists " natural environment, racial relations, external
historical influences") and he concedes that the "variations"
include the political (and presumably legal) part of the super-

Marx 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
THE 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

40 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 suwr-
structure. " 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.
41 Capital, Vol. 111, p. 772.
42 Miliband, Marxism and Politics (1977), p. 8.
43 "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.
44 McLellan, The Thought o f Marx (1971), p. 151.
45 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 Com-
munist 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 poten-
tial 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 pro-
letariat 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 over-
emphasised tQe significance of economic class both as an explana-
tion 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 con-
tested that the oppression of women associated with male supremacy
antedates c a p i t a l i ~ m ,persists
~~ in " socialist" countries and that
such patterns of dominance are to be found outside the nuclear
family in communal living.52 The Marxist, however, strives to inter-
pret both sex discrimination 53 and racialism in Britain and other

46 In Feuer (ed.), op. cit., p. 49.


47 Cf. J. Berger, New Society, December 1977.
48 The German Ideology, D. 21. They made " the perfecting of the illusion of
the class about itself their chief source of livelihood."
49 The Poverty of Philosophy, pp. 140, 195. Similarly with revolutionary con-
sciousness, 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.
$0 Dahrendorf, Class and Class Conflict in our Industrial Society (1959).
51 Delmar in Mitchell and Oakley (eds.), The Rights and Wrongs o f Women (1976),
p. 271.
$2 Abrams and McCulloch, Communes, Sociology and Society (1976), Chap. 5 .
53 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 immi-
grants 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 characteris-
tic 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
noted in The Communist Manifesto "g). These two views are
different but, as McLellan emphasises, they are by no means
incompatible.
Marx traced the origin of the state, as he did other social institu-
tions, 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 forma-
tion of a11 communaI institutions and gives them a political form.
54 A reference to the Immigration Act 1971.
55 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 for-
gotten 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 condi-
tions 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).
56 Ante, 726 et seq. On the materialist view of the State see Holloway and Picciotto,
State and Capital (1978), Chap. 1 .
57 McLellan, The Thought of Karl Marx (1971), p. 179.
58 Zdem, p. 181. 59 Penguin ed., 1975, p. 82.
60 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
U U

definition of- law -as such in Marx. --- Both he ---and Engals concentrate
their attention
-- -
rather on how -law is created. Thev are interested
- ----
a
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 -functions
- - - -- -of --law is-to obscure power
relationships. Thus,- -the .--
. leg_al form will refer to the right to enter
---p-

freely
----- -into contracts but in- the
--- - - -.-
absence of equality of bargaining
- - - . - -- - - --
power this freedom is illusory. The legal form i s an idedogical
p--p--

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

61 Grundrisse, p. 48.
62 Pre-Capitalist Economic Formations, p. 69.
63 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 prole-
tarian 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, accord-
ing 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,

I34 Quoted, idem, p. 142.


6s 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.
The " Withering Away " of the State 735

universal suffrage was to serve the people constituted in Com-


munes, 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 subse-
quent 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 revolu-
tionary 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,
nothing but the " old familiar democratic litany." It called for
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

72 The Civil War in France, p. 211.


73 Though The Communist Mavzffesfo,nearly a quarter of a century earlier, con-
tains 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).
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 com-
munist 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 power-


fully was the role of the Party. Marx frequently asserted the
need of the working class to organise itself, but he was not parti-
cularly 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 con-
ditions, 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

82 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 contgm-
poraries and successors, see Miliband, Marxism and Politics (1977), Chap. V.
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 separa-
tion and alienation of power from the masses. He saw the destruc-
tion of the old machine as the destruction of the limits imposed
on democracy by the bourgeois state. Much of State and Revolu-
tion 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 social-
ist 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. Com-
munist 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
90 Ante, 734, post, 773.. 91 Post, 775.
g2 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).
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 influ-


ence on subsequent: social and legal thought, and by no means con-
fined 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 his-
tory. 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 An interesting critical account of the relationship between Marx and Lenin is


Plamenatz, German Marxism and Russian Communism (1954).
97 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 exer-


cises 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 regu-
lating conditions of work. Renner shows how in time the comple-
mentary legal institutions assume the real function of ownership
and this itself becomes an empty legal form. In this way the con-
cept of private ownership has become transformed into an institu-
tion 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 See Taylor, Waltori and Young, The New Criminology (1973).
99 This point is well made by Robson, op. cit.
1 Cf.ante, 729.
2 Znstitutions of Private Law, p. 55.
3 Zdem. p. 56.
4 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 prin-
ciple, 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 domina-
tion resulted as much from popular consensus engineered in civil
society as from physical coercion or its threat by the state appara-
tus. 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 Useful discussions are Anderson (1976-1977) 100 New Left Review 5; Boggs,
Gramsci's Marxism (1976).
6 Gramsci's concepts, notably "hegemony," are being employed with increasing
frequency by scholars in many disciplines. See for example, Nairn, The Break-
up 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).
7 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.
8 V&, that of " an educator " (Prison Notebooks, p. 260).
9 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 particu-
larly 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 oppres-
sive 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 genera-
tion of sufficient wealth for the " ruling class " to buy off the work-
ing 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 Lumpenprole-
tariat 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 under-
lying 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.

10 During the Nazi period it moved to New York.


See Eros and Civilisation.
12 See Toward a Rational Society (1971) and Knowledge and Human Interests
(1970).
13 One-Dimensional Man (1964). 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 socia-


lism under which " there will be neither division into classes nor
state authority." It was believed that there was no need for pri-
vate 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 Counter-
revolution, 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 contra-
diction with their social-economic purpose."
The jurists of this period were familiar with Western jurispru-
dence.15 It was 'a period of " intellectual ferment " and no one
line was the prevailing orthodoxy. With the exception of Pashu-
kanis 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 em-
ployment contkacts, family law derived from a contractual view
14' On which see Hingley, The Russian Secret Polim (1970), Wolin and Slusser,
The Soviet Secret Police (1957).
15 This point is made by Jaworskyj, Soviet Political Thought (1967). Soviet jurists
were particularly interested in the writings of Kelsen and Duguit.
16 See, for example, Podvolotskii in Jaworskyj, op. cit., p. 118.
'
1 Quoted idem, p. 57.
18 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).
1"1n 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 contractua-
lism." 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 re-
collectivisation 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
196 For a recent article by a Western jurist with similar views see Balbus, 11 Law
and Soc. Rev. 571 (1977).
20 He hardly deserves to be called a jurist. Fuller's comments, op. cit., repay
study.
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
only by the Nazi h a l o c a u ~ t . ~There
~ is no jurisprudence of note
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 com-
munism." 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 revolu-
tionary 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).
22 See his writings in Jaworskyj, op. cit., D. 324, and in Babb and Hazard, Soviet
Legal Philosophy (1951).
23 The first president of the Soviet Supreme Court. 24 Cf. ante, 223.
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 im-
portance 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 Shargorod-
sky 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 educa-
tion 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 In the prologue to the new Constitution. See post, 746.


26 C f . Lenin, ante, 736.
27 See Romashkin, Soviet Law and Government, Vol. 1, No. 1, p. 3.
28 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.
29 On which see Berman, Justice in the U.S.S.R. (1963), pp. 286-288.
30 Idem, pp. 288-291. On developments in Eastern Europe see Butler 25 Current
Legal Problems, p. 200 (1972).
31 Soviet Law and Government, Vol. IV, No. 2, p. 13.
32 Idem, p. 20. And see post, 792.
33 Soviet Law and Government. Vol. 11, No. 2, p. 3.
34 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."
35 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 would-
be 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 strengthen-
ing 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 com-
munism." 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 Idem, p. 7. 3s Idem.
39 Jwiler, Revolutionary Law and Order (1976), p. 84.
40 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.
41 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.
42 See Kuznetzov, Prison Diaries (1975). See also Lapenna, 1 Rev.Soc. Law 73
(1975). 43 Quoted in Juviler, up. cit., pp. 86-87.
44 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 Constitu-
t i o n ~ the
, ~ ~ Soviet Constitution is not a basis for litigation, nor is
there any attempt to establish an independent judiciary.50 Dissi-
dents 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 Art. 6. 4 6 Art. 50 (same as old 1936 Constitution, Art. 125).


47 Art. 39.
48 Ante, 121. 4 9 Ante, 133.
50 A piece of bourgeois mystification in Soviet, and indeed Marxist, eyes.
51 See Feldbrugge (1973) Czermnt Legal Problems 241 (also in Contemporary Soviet
Law (Barry, Butler and Ginsburg, eds., 1974).
52 "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)).
63 " 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 jurispru-


dence. I t was emphasised particularly in Khrushchev's denuncia-
tion 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 educa-
tional 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 con-
sciousness 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
54 This is particularly the case in trials of dissidents.
55 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 involve-
ment 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.
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 Olive-
crona'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 law-
type 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 with-
drawal of love from the offender and his consequent excommunica-
tion." 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 disd-
dents in the Soviet Union. The question is, therefore, posed as to
how the Soviet Union perceives such trials. Berman himself sug-
gests that the cognitivedevelopmental theory (close in goal to utili-
tarianism 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 c cussed by Butler (1977) 3 Rev.Soc.Law 325. This reproduces the new statute.
62 Ante, 597.
6s 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.
64 The Moral Judgment of the Child.
6s Obedience and Authority, c f . ante, 186.
66 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).
67 (1972) 21 I.C.L.Q. 81, 93.
68 Zdem, 94.
69 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 psycho-


logical and religious theories that stress the formation of con-
science 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 Op. c i t . , n . 15, p. 94.


71 See Holland, The Socialist Challenge (1975), part, Chap. 5.
72 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

MARXISTJURISPRUDENCE
CONTEMPORARY 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 inter-
pret 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. " Crimi-
nal 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
country 'lg or the United States. Crimes like conspiracy may
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
73 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 legis-
lation 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 Eng-
lish 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.
752 Marxist Theories of Law and State

who represent dominant class interests " 82 (ironically, in the after-


math 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 repre-
sented. 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 demo-
cratic strain in Marx and not the state socialism of the East. In
his prescription for the future he would, however, seem to part com-
pany 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 pro-
bably 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.
83 Idem, p. 73.
84 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).
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 con-
ceive 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 rela-
tively 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?

88 (1975) 2 Br.J. of Law and Soc. 61, 63.


89 Images of Law (1976), p. 30.
90 Zdem, p. 29.
9 1 Zdem, p. 31.
Q2 Cf.ante, 729.
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 concep-
tion 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 appro-
priately be categoried as anarchists, not lease their final declama-
tion, " 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 criti-
cised. 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, further-
more, 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 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).
94 Weber was one of Marx's earliest critics on this score.
95 Ante, 732.
96 In Leviathan (1651).
97 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 econo-
mic 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 particu-
lar 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
power." Reference has been made to this problem in an earlier
~ 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 Hallam, " The Medieval Social Picture " in Feudalism, Capitalism and Beyond
(Kamenka and Neale, eds., 1975), p. 29.
99 West, " On the Ruins of Feudalism-Capitalism? " in idem, p. 51.
1 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).
3 Greenwood and Young, Abortion In Demand (1976), Becker, Outsiders (1963),
Roby (1969) 17 Social Problems 83, Dickson (1968) 16 Social Problems 56.
4 Crime and the Legal Process (1969), p. 10.
5 Ante, 362. 6 Criminality and Economic Conditions (1916).
7 " 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 self-
regulation 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 im-
pose 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 govern-
ment 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

8 " Social Control and the Legal Order " (1977) 1 Contemporary Crises 77, 85.
9 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.
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 rule-
system whose origins are frequently as mysterious to tlites as to
governed. It offers no vision of a legal system as a series of con-
straints upon law-giver and ruled alike. It does not refer to legi-
timacy 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 con-
trol. The law-giver is an Olympian figure endowed with a rationa-
lity, an innocence of unintended consequences, and a clear self-
interestedness. . . . Such a 1,egislator is a strange creature to dis-
cover 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 Useful critiques are Mankoff (1970) 17 Social Problems 418, Cunningham (1976)
39 Science and Society 385.
18 See Gouldner, For Sociology (1973), Chap. 1. Cf.ante, 439.
l9 See, in addition to works cited here, Lukes, Power-A Radical View (1976).
20 (1962) 56 Am.Polit.Sci.Rev. 947; (1963) 57 Am.Polit.Sci.Rev. 632. Also in
Power and Poverty (1970).
21 Cf. Wolfinger (1971) 65 Am.Pol.Sci.Rev. 1063; Nadel (1975) 37 J. of Politics
2.
22 Ante, 574. Cf.Russell's question: " Are there negative facts? " (See Urmson,
Philosophical Analysis, p. 68).
23 " 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 encoun-
ters 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, Dahren-
dorf 24 points to the decomposition of capital, the managerial revo-
lution 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? Dahren-
dorf 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 Class and Class Conflict In Industrial Society (1959).


25 The Managerial Revolution (1941).
26 The Modern Corporation and Private Property (1932). C f . Nichols, Ownership,
Control and 1deolog.y (1969).
27 See Westergaad and Resler, Class in a Capitalist Society (1975), p. 156. See
table at p. 158.
28 Marx was not unaware of some of these divisions. C f . ante, 730.
29 Atkinson, Unequal Shares (1972); Lukes in The Socialist Idea (Kolakowski and
Hampshire, eds., 1976), Chap. 6.
30 See Lane, The End of Inequality: Stratification under State Socialism (1971),
Parkin, Class Inequality and the Political Order (1971).
31 Op. cit.,n.30,p. 69.
32 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 inter-
ests 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 imple-
menting 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 jurispru-
dential 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

33-71 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.
72 The 1%3 Constitution is reproduced in Jan F. Triska, Constitutions of the
Communist Party-States (1%8), p. 477. On decentralisation, see Hazard, Com-
munists and their Law (1969), pp. 51-57.
73 On which see Clegg, A New Approach T o Industrial Democracy (1963); Single-
ton and Topham, Workers' Control In Yugoslavia.
73' 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.
74 On which see The Basic Principles of the Constitution, Part I11 and Chloros,
Yugoslav Civil Law (1970), Chaps. XII, XIII.
76 Zdem, p. 166.
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, be-
cause 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 anar-
chic 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 self-
government 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 pro-
ducers 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 Quoted in Chloros, at p. 164.
77 The Times, September 29, 1968, quoting from Izvestia.
18 S e e Soviet Statutes and Decisions (1%6), No. 3, p. 52.
1s See Ota Sik, Plan and Market Under Socialism (1%7).
80 Quoted in Chloros, op. cit., p. 152, n. 5.
81 Per Professor DordeviC, a leading jurist, quoted idem.
82 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
regulation and p u n i ~ h m e n t .A
~ ~distinction was drawn in Chinese
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 sen-
tenced 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 predicta-
bility. 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
principle, preside over the law enforcement a p p a r a t ~ s . ' ' The
~ ~ 1954
Constitution resembled Stalin's 1936 Constitution. Not least remark-
able is Article 78 of the Chinese Constitution: " people's courts
shall conduct adjudication independently and shall be subject only
83 On the Confucian attitude to law, see Schwartz in Cohen, idem, pp. 62-70.
84 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.
8s In 82 Ham.L.R. %7, 977.
86 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. Non-
judicial 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 C f . Soviet Constitution 1936, Art. 112.
88 See Cohen, 82 Harv.L.R. 967, 1002.
89 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 writ-
ten 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.
91 See Cohen, op. cif.,p. 990.
92 Idem, p. 992. Cf.ante, 736.
D3 See F. Schurmann, Ideology and Organisation In Communist China (1966),
p. 180.
94 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 well-
taken, 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 re-
assert 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
95 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.
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 isnstitu-
tions. 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 juris-
diction 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 other-
wrldly 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 develop-


ment of their material powers of production. The totality of these rela-
tions 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 trans-
formation 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 pro-
duction; 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 com-
munity 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, how-
ever, on the real ties existing in every family and tribal conglomeration-
such 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 indepen-
dently 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 mis-
stated, 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 Parlia-
ment, universal suffrage was to serve the people, constituted in Com-
munes, 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 busi-
ness 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 4a

(1 848)
These measures 4h will of course be different in different countries.
Nevertheless in the most advanced countries, the following will be
pretty generally applicable.

4 [From McLellan, The Thought of Marx, pp. 193-194.1


4a [From McLellan, The Thought o f Marx, pp. 219-220.1
4b [TO be undertaken by the proletarian government on its takeover.]
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 improve-
ment 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 dis-
appeared, 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 pro-
ducer 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 pre-
vails 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 pro-
ductive 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 subordina-


tion 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 produc-
tion 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
phrase " free people's state "-both its justification at times for agita-
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 mppres-
sion 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 (pro-
letarian) " 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 oppor-
tunists. ... 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 poli-
tical, 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 con-
ditions. 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, how-
ever, 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 institu-
tions, 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 func-
tions 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 develop-
ing 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 com-
modity 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 insuf-
ferable in the case of the most unimportant public office, why is it that
the fortuitous heir may still succeed into an important economic enter-
prise 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 comple-
mentary 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 employ-
ment 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 employ-
ment, 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 ful-
filled by the legal institution. We have seen that iht is not the legal
form of the contract of employment but its connection with the institu-
tion 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 observa-
tions, 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-commis-
sioned 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 achieve-
ments 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 be-
comes 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 institu-
tions 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 con-
struction from the obstructions caused by its origin? Or has it sur-
rendered 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 indestruc-
tible. - The capital function also remains indestructible, and all develop-
ment 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
engage in an attempt at their solution. [pp. 292-3001
Marxist Theories of Law and State

E. B. PASHUKANIS
Theory o f Law and Marxism

The Tasks o f the General Theory of Law


. . . As 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-nse-
quently 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
collective labor directly and not indirectly." But even if the market
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, pre-
supposes 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 well-
without 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

7 [From Babb and Hazard, Soviet Legal Philosophy (1951), p. 111.1


7a Marx, Critique of the Gotha Program (Russian ed., 1919), p. 15.
7b 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 evmy-
one 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 oolmmu-
nism, 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: <theunifica-
tion 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 com-
pensation 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 over-
coming 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
for the legal form. . . . [pp. 122-1241
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 gen-
eral; labor of every sort is reduced to socially beneficial labor in
gener~il,~cand 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 in-
dependent 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 cion-
tract. 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 econ-
omy 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 appropria-
tion resting on labor, seizure, and so on which a society of goods-
producers, as it is merging, finds ready-jxepared. Per se the relation-
ship 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

70 " With 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.
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 thing-
that 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, alien-
ating his own goods." This is precisely the meaning which the reprewm-
tatives 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 function-
ing 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 relation-
ship 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 im-
mobility-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 mutuality-
guaranteed by the laws of the market-gives property the character ,of
an "eternal " institution. By way of contrast, the purely political guar-
antee, 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 non-
proletarian 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 com-
pelled 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
transition period, the proletariat mwt n-arily utilize in its class
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
'' 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.
9 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 com-
pels the fulfillment of the contract, albeit by force."
10 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 punish-
ment: that is to say, even here the subsequent stages of development-
as 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 equiva-
lent. The definition of crime as a contract concluded against one's will
also belongs to Aristotle. Punishment comes out as an equivalent bal-
ancing 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 develop-
ment of man.
In reality, the act of self-defense is one af the most natural mani-
fatations of animal life. It makes no difference whether we encounter
it as an individual reaction of a particular animal or whether it is sel'f-
defense 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 con-
nected 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 recog-
nized 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 alter-
native. 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 sub-
ordinated 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
11-19 [From a translation in Soviet Law and Government, Vol. 2, No. 2, p. 3.1
20 [On which see ante, 744.1
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 com-
munist 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 com-
plete cessation of the normative regulation of social relationships. Com-
munism 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 pro-
duced, and their prices, are regulated by the spontaneous laws of the
market. under the conditions of socialist society they are established

21 CFrom a speech d N. Khrushchev on the Communist Party Programme.]


22 [From an article by Karapetian and Razin entitled On Investigating the Develop-
ment 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 under-
stood, 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 develop-
ment.
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 comes-
pond 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 unjusti-
fied 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 develop-
ment 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 develop-
ment of socialist society.
Moreover, in capitalist society (as in the exploitative socio-eoonomic
societies preceding capitalism), law as a whole is directed toward rein-
forcing 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 develop-
ment. 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 adher-
ence 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, nation-
there is likewise ag unofficial and largely unwritten pattern of obligations
and sanctions. The official law of the state, with its authoritative techni-
cal language and its professional practitioners, cannot do violence to the
unofficial 1awansci~)usnessof the people without creating serious ten-
s 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 neces-

23-37 See L. I. Petrazhitskii, Teoriia prava i gosudarstva v sviazi s teoriei nravstven-


nosti (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
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-conscious-
ness. 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 rudi-
mentary 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 oom-
munity 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 institutions-
of 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 develop-
ment. 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 "educa-
tional " 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 social-
ism 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 re-
sources ("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) replace-
ment 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 recog-
nition 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 con-
science 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 mechan-
ized, 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 instru-
ments 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 objec-
tives. 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

specify the manner in which it should operate, and that prov'd '1 e means
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,
complete with codes, courts, and the mhus, as part of their
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 advan-
tages 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~ministra-
tion 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 dis-
cretionary 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 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).
43 See generally, Derk Bodde and Clarence Morris, Law in Imperial China:
Exemplified by 190 Ch'ing Dynasty Cases (Cambridge, Mass.: Harvard Uni-
versity 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 enforce-
ment 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
7

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
44 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
(6 See generally, Jarnes R. Townsend, Political Participation in Communist China
(Berkeley and Los Angeles: University of California Press, 1967). For a dis-
cussion 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 bureau-
cracy 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 develop-
ment 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 whole-
s 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 organ-
izations <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
preserve the moral and ideological basis of capitalism. . . .
[pp. 55-56]

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 policy-


making 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 syetem-
is 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 en-
couragement 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
46 [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 jetti-
soned and replaced by who knows what (cf. Dennis Lloyd, The Idea of Law,
Chaps. 1 and 2).]
47 Edwards, Reich, and Weisskopf. The Capitalist System, p. 520.
48 Ibid.
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 estab-
lished 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 social-
ism 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. Partici-
patory 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 replace-
ment. Participatory socialism entails a sense of egalitarian coopera-
tion, 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 Ibid.
50 See Michael Harrington, Socialism (New York: Saturday Review Press, 1972),
pp. 36-54.
51 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 cen-
tralized 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 them-
selves.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 per-
petuating 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 decen-
tralized 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 civiliza-
tion, 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 emer-
gent." 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 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).
53 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 con-
flicting 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 custom-
ary 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 altern-
ative to national law in this case, and a transitional move to the
abolition of law, is the emergence of the popular tribunaLS7 Neigh-
borhoods 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 main-
taining 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 Ibid., p. 140.
55 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.
56 [There is a characteristic irony in the author's readiness to support his case
from the social system of a ruthless dictatorship.]
57 Jesse Berman, "The Cuban Popular Tribunals," Columbia Law Review, 69
(December, 1969), pp. 1317-1354.
58 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 develop-
ment, law is little more than a rigid and repressive means of manipula-
tion 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 Mamism-
Leninism-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 indi-
vidual 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 dis-
cussed 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.