The proletariat, having overthrown the bourgeoisie and consolidated its dictatorship, had to create Soviet law in conformity with the economy, in particular the existence of many millions of small and very small peasant farms. When General Theory first appeared it is doubtful that anyone, least of an Pashukanis himself, could have foreseen its immediate success and the meteoric rise of its author withi… This is why Marx, in his well-known letter to Weydemeyer, indicates that the theory of the class struggle was known before him. In his opinion, Marx considered only relations of production and exchange to be social relations. Marx’s view of state and law was co-terminus with the understanding of society and social process. Theories of the state: Marxist. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm However, its reception in the Anglosphere schematically separated them into competing “instrumentalist” and “structuralist” approaches to the capitalist state, in which the capitalist class either controlled the state through the influence of personal networks or the state’s independence was structurally guaranteed by its role in the capitalist mode of production.34David A. Not wishing to recognize the basic fact, i.e. Long before me bourgeois historians had described the historical development of this class struggle, and bourgeois economists the economic anatomy of the classes. If law in its entirety was the complex of orders proceeding from the state, and consolidated by sanction in the case of disobedience, then the task of jurisprudence was defined with maximum clarity. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op. Marxist theoretical views challenges the basic concepts of liberal state as well as emphasises that it subjugates majority men of society to accomplish its objectives. While this post cannot resolve these challenges, my contention is that any inquiry into the “Marxist theory of the state” is inseparable from the history of Marxist debates about the state, as these debates were conducted on shifting political, strategic, and theoretical terrains over the course of the tradition’s development. The criticisms often levelled against the Marxist view of the state, as well as the Marxist rebuttal of the critique are also highlighted. Although less a definition than a device of political rhetoric, when taken together with other references, it suggests a relationship where the economically dominant class directly controls and exploits state institutions for its own benefit. Ellen Meiksins, Democracy Against Capitalism: Renewing Historical Materialism (London: Verso, 2016 [1995]). Characterizing revolutionary proletarian socialism in France in 1848, Marx wrote: This socialism is the proclamation of the permanence of the revolution, a proclamation of the class dictatorship of the proletariat as a necessary transition toward the elimination of class differences altogether, toward the elimination of all production relations upon which these differences are based, toward the elimination of all social relationships corresponding to these production relations, toward a revolution in the entire world of ideas arising from these relationships. However, a number of times Lenin noted that Marx’s great service was that he did not limit himself to the description of the economic “skeleton” of capitalist society, but that: in explaining the construction and development of a definite social formation “exclusively” by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war. Disguising the class character of the state, bourgeois scholars interpret this coercion in a purely psychological sense. The form of this expression may be different, as was indicated by Engels [5]; it may sometimes be good and sometimes be bad. Only to the extent that this process of formulation and consolidation proceeds may one speak of law. Thomas McCarthy (Boston: Beacon Press, 1975); Claus Offe, Contradictions of the Welfare State, ed. This viewpoint of course fundamentally contradicts Marxism. This erroneous conception was developed in E.B. Allen W. Wood (Cambridge: Cambridge University Press, 1991 [1820]), 329. Marxist Legal Theory According to Karl Marx, humans are allegedly accidents; therefore their laws are also allegedly accidents. But the application of law is an active and conscious process by which the state apparatus plays the decisive role as a powerful weapon of class struggle. It is necessary to begin with these relationships in order to comprehend the complex picture presented by the history of mankind. oC . In contradistinction to all normative theories – which are limited to the external and formal side of law (norms, statutes, judicial positions etc.) As an example, he mentions the absolute monarchy of Louis XIV in France, tsarist autocracy in Russia and the dictatorial power which was invested by the procedure of extraordinary powers in the one person, for instance the president of the German Republic on the basis of Art.48 of the Weimar Constitution; (b) constitutionalism, characterized by the separation of powers, their independence and their checks and balances, thereby weakening the pressure exerted by state power on the individual (examples: the German Constitution before the 1918 revolution, and the USA, where the President and Congress have independent powers); (c) democracy, whose basic premise is monism of power and a denial in principle of the difference between power and the subject of power (popular sovereignty, exemplified by the German Republic); and (d) the class-corporative state and the Soviet system where as opposed to formal democracy, the people appear not as an atomized mass of isolated citizens but as a totality of organized and discrete collectives. V. I. Lenin, The Economic Content of Narodnism (1895), LCW, vol.1, p.419. Representatives of idealist philosophy of law go still further. In both cases, the question concerned the degree of autonomy that the state and law had from the means and relations of production. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. This will be hardest of all for a jurist for whom law is a purely technical and artificial superstructure, strangely enough, holding sway over its base. Law and State. Property relationships occupy the prominent place in the characterization of a specific legal order. While Marxism strives to give a concrete historical meaning to law, the characteristic feature of bourgeois philosophers of law is, on the contrary, the conclusion that law in general is outside classes, outside any particular socio-economic formation. Bob Jessop, State Theory: Putting the Capitalist State in Its Place (Cambridge: Wiley, 1990); Bob Jessop, The Future of the Capitalist State (Cambridge: Wiley, 2002); Bob Jessop, The State: Past, Present, Future (Cambridge: Polity, 2016); Stanley Aronowitz and Peter Bratsis (eds), Paradigm Lost: State Theory Reconsidered (Minneapolis: University of Minnesota Press, 2002); Clyde W. Barrow, Critical Theories of the State: Marxist, Neomarxist, Postmarxist (Madison: University of Wisconsin Press, 1993); Clyde W. Barrow, Toward a Critical Theory of States: The Poulantzas-Miliband Debate after Globalization (Albany: State University of New York Press, 2016); Raju J. Das, “State Theories: A Critical Analysis” (1996) 60 Science & Society 27–57. Unless otherwise indicated, written content on this site is published under, Legal Form: A Forum for Marxist Analysis of Law, Some Hasty Musings on Matters Legal and Economic, No Bases, No Superstructures: Against Legal Economism, More Depth, Less Flatness: Marx’s Negative Ontology of Social Totality, CfP: Critical Legal Studies: Debating the Anti-Liberal Tradition →, Creative Commons licence (CC BY-NC-SA 4.0). Notify me of follow-up comments by email. However, the overcoming of this condition would not take place through the state, which was itself merely the objectified form taken by social alienation, but rather through changes in the structures of the family and civil society — those very spheres that Hegel had subsumed to the state.3Karl Marx, “A Contribution to the Critique of Hegel’s Philosophy of Right” [1844] and “Critique of Hegel’s Doctrine of the State” [1843], in Early Writings, trans. The basic attitude of Marxism to the capitalist state is summed up by Lenin in the above mentioned 'State and Revolution'. outside the sphere of action of any state power, the emergence of legal relationships is possible. and of nationalism, culture, and constitutionalism by Austro-Marxists such as Max Adler, Otto Bauer, and Karl Renner.29Tom Bottomore and Patrick Goode (eds), Austro-Marxism (Oxford: Clarendon Press, 1978); Mark E. Blum, and William Smaldone (eds), Austro-Marxism: The Ideology of Unity, vol. As such, it was the means by which the social fragmentation caused by narrow conceptions of individual freedom (property rights, commerce) facilitated by the emergence of bourgeois society in England, as well as the radical political egalitarianism of the French Revolution, would be reconciled. present) era and the state (or absence of one) in post-capitalist society. Democracy was the “essence of all political constitutions”, because it took socialized human beings as its starting point.6Marx, “Critique of Hegel’s Doctrine of the State”, 88. Making this contention, the Jurists “forgot” such a trifle as the October Revolution and the dictatorship of the proletariat. X). For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production. He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while “the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules”. In fact, NEP “is a special policy of the proletarian state intended to permit capitalism while the commanding heights are held by the proletarian state, intended for the struggle between the capitalist and socialist elements, intended for the growth of the role of the socialist elements at the expense of the capitalist elements, intended for the victory of the socialist elements over the capitalist elements, intended for the elimination of classes and for the construction of the foundation of a socialist economy.” [8]. This approach is also incorrect and non-dialectical. – is avoided by Stuchka; he cites the subsidiary, derivative etc. These practices secure the state’s claim to legitimacy by reproducing it as the representative of the general social interest while continuing to facilitate capital accumulation, mediating relations between competing fractions of the capitalist class and integrating these fractions into the global circulation of capital. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom? But he speaks of criminal and state law, not entirely consistently with his other position, i.e. Thus, bourgeois scholars easily transfer law to pre-class society, find it in the pre-state life of primitive tribes, and conclude that communism is unthinkable without law. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. Images and other media may be under different licences. are tied by exchange and the contractual relationship is the form of this exchange. The bourgeois theory of the state is 90% the legal theory of the state. These social forms should be considered as a superstructure upon the economic base. These [owners – eds.] He believed that proletariat law practised in erstwhile Soviet Union needed alternative general concepts to reinforce Marxist theory of law. It is not only important to “read” the norm, but also to know what class, what state, and what state apparatus is applying this norm. V.I. Such a concept is a caricature of Marxism. We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West. Evgeny Pashukanis, Pashukanis: Selected Writings on Marxism and Law, ed. by the history of class struggle. Proceeding from the equation of production and social relationships, Stuchka defined law as a “system (or order) of social relations corresponding to the interests of the ruling class and protected by its organized force”. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol.1, p.13. When it is tied to this logic Marxism does not so much offer a theory of law as a "theory against law" (Santos 1979; Cotterrell 1981a). To try to force all the varied branches of law into one formula is to give preference to empty abstractions. As such, it was “the product of society at a particular stage of development”, having “arisen out of society but placing itself above it and increasingly alienating itself from it”.18Friedrich Engels, The Origin of the Family, Private Property and the State (London: Penguin, 1986 [1884]). Everything depends on whether power is in the hands of a revolutionary or a reactionary class. The Marxist hypothesis of law includes a materialistic perspective of social life in which law and the state (the superstructure) are subordinate to the predominant methods of creation all through human history. 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