The denial of formal legal logic cultivated by the bourgeoisie does not mean a denial of revolutionary legality, does not mean that judicial cases and questions of administration must be decided chaotically in the Soviet state, systematically on the basis of the random whims of individuals, or on the basis of local influences. Theories of the state: Marxist. In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. MARXIST THEORY OF THE STATE The early Marxist thinkers considered , the state as an instrument of exploitation in the hands of the dominant class. Legal Relations and Class Relations. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. The definition of law as the totality of norms is the starting point for supporting the so-called dogmatic method. “As far as I am concerned”, he wrote. Therefore, the application of norms of Soviet law must not be based on certain formal logical considerations, but upon the consideration of all the concrete features of the given case, of the class essence of those relationships to which it becomes necessary to apply a general norm, and of the general direction on of the policy of Soviet power at the given moment. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. During this time, law took on an increasingly abstract and formal character, replacing estates as the primary way of mediating between individuals in the new “independent” realm of civil society. Conversely, to ignore exchange in considering the problems of Soviet law leads to “leftist” positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. The Object of Marxist Theory of Law. Lenin’s view of the state as a repressive instrument of class power undoubtedly remained the definitive and most influential treatment of the state within the Communist movements and parties of the twentieth century. Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny. Quintin Hoare and Geoffrey Nowell Smith (New York: International Publishers, 1971). Pashukanis’ place in the history of legal philosophy and legal practice is secure primarily due to his treatise The General Theory of Law and Marxism. It suffices to mention such a work as Oceana – by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century – in which changes in political structure are related to the changing distribution of landed property. Lastly, the urgency of the climate crisis has drawn the focus of many researchers to the state as a site of struggle over resource extraction and future policies for climate change mitigation.44Thea Riofrancos, Resource Radicals: From Petro-Nationalism to Post-Extractivism in Ecuador (Durham: Duke University Press, 2020). Tom 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. The instrumentalist model of Marxist theory of state emphasizes that the state is simply a weapon of class rule. 2 Law and state are closely connected; law exhibits a relative autonomy I'rom the state. From this perspective Soviet law is seen exclusively as a legacy of class society imposed on the proletariat and which haunts it until the second phase of communism. A Marxist theory of the state would have to produce an explanation that worked across the entire spectrum of capitalist regimes, including the Western European ones. 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). What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ...; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society. See Kellreiter’s article The State;, in D. Elster et al. They thus transform law into a supra-historical category. According to Engels, in the beginning there existed a classless society in which all persons enjoyed the same position with respect to the means of productions; individuals were equal and independent of each other, because the means of production w… Beginning in the 1960s, Gramsci’s translation into English and Althusser’s major retheorization of Marxism further facilitated the critique of base-superstructure models. The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist-Leninist theory of society, of the state and of law. The State. Evgeny Pashukanis, Pashukanis: Selected Writings on Marxism and Law, ed. Making this contention, the Jurists “forgot” such a trifle as the October Revolution and the dictatorship of the proletariat. These social forms should be considered as a superstructure upon the economic base. 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. But the basic qualitative difference between this superstructure and the political and legal superstructures of class society, consists in the absence of property inequality, exploitation, and organized class coercion. Reevaluations of the legacy of Marxist debates about the state from the 1990s onward have attempted to forge a more coherent account on the basis of existing theories or else to clarify divisions between these theories.39Bob 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. However, in the Eighteenth Brumaire of Louis Bonaparte, Marx sketched a picture of an exceptional form of the state that superimposed itself over society to arrest the sharpening antagonisms between different class fractions. Nevertheless, Comrade Stuchka firmly defends his understanding of the term “social relationships”: We proceed from social relationships; I emphasize the word “social”, for here my critics are desperately confused. Stuchka would, in fact, have had to reach this conclusion. This of course does not exclude concrete historical national differences between each of the systems. 51–68. Only by depending on them could the slaveowner of antiquity or the modern capitalist enjoy his right. 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. Clyde W. Barrow, “The Marx Problem in Marxian State Theory” (2000) 64 Science & Society 87. [12]. The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. Attempts to consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Here he argues for a “general law” which is equated with the civil law of bourgeois society. This tendency was very strong in the first years of NEP. David A. Rodney Livingstone and Gregor Benton (London: Penguin, 1992). Lenin, in his polemic of the 1890s with Struve asserted that: “he most incorrectly sees the distinguishing feature of the state as coercive power. To try to force all the varied branches of law into one formula is to give preference to empty abstractions. On the contrary, the significance of form is recognized only through content, through economics, through politics and through relations between classes. Marx described this state as a “parasitic body” composed of a bureaucratic and military organization that “enmeshes, controls, regulates, supervises and regiments civil society”.10Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852], In Surveys From Exile, vol. A state is a machine for the maintenance of the domination of one class over another. Jürgen Habermas, Legitimation Crisis, trans. From all that has been said above it is clear that the definition of law as a formal intermediary of the economy must be recognized as insufficient and incorrect. This political dimension further complicates the claim that there could be a unitary theory of the state, and requires attention to both the historical and ideological context within which attempts to develop such a theory have been made. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property. Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” [1852], In Surveys From Exile, vol. On the other hand, Karl Marx's theory of law has influences of Carl von Savigny. Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. The bourgeois theory of the state is 90% the legal theory of the state. The form of this expression may be different, as was indicated by Engels [5]; it may sometimes be good and sometimes be bad. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning. Marxist theory not only challenges the basic concepts of liberal state but also emphasises that it enslaves majority men of society for the realisation of its aims, it is to be abolished or smashed without which the emancipation of common men will never be possible. Soviet law in each of the stages was naturally different from the law of capitalist states. We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West. Others have pointed to at least two different understandings of the relationship between the economically dominant class and the state, which left unresolved the question of what under what conditions it could be claimed that the state acted in its interests.14Ralph Miliband, “Marx and the State” (1965) 2 Socialist Register 278; Axel van den Berg, The Immanent Utopia: From Marxism on the State to the State of Marxism (Princeton: Princeton University Press, 1988). Therefore theorists of the Second International such as Kautsky, who contrast “democracy” in general with “dictatorship”, entirely refuse to consider their class nature. Discussions of the state in the Marxist tradition have generally been situated amidst specific disputes about the strategies that working-class movements and parties should adopt in the face of organized political power. Enjoy the videos and music you love, upload original content, and share it all with friends, family, and the world on YouTube. Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2007); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham: Duke University Press, 2009); Mark Neocleous, Critique of Security (Edinburgh: Edinburgh University Press, 2008); Brendan McQuade, Pacifying the Homeland: Intelligence Fusion and Mass Supervision (Berkeley: University of California Press, 2019). Cemal Burak Tansel (ed), States of Discipline: Authoritarian Neoliberalism and the Contested Reproduction of the Capitalist Order (London: Rowman & Littlefield, 2017); Ian Bruff and Cemal Burak Tansel (eds), Authoritarian Neoliberalism: Philosophies, Practices, Contestations (London: Taylor & Francis, 2019). The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat. Although Gramsci’s carceral writings did not receive a wide audience until the 1950s, his innovative treatments of hegemony, the balance of social forces, and revolutionary political strategy were groundbreaking in the postwar context for both Western communist parties and the New Left.30Antonio Gramsci, Selections from the Prison Notebooks, ed. This is all the more true with respect to the legislative creation of norms. Having made this discovery, it cost Stammler nothing “to prove” that regardless of the difference between the “life and activity of nations” and “the objects of legal consideration”, we observe the unity of the legal idea and its equal appearance and intervention. Bourgeois jurists usually define law as the totality of norms to which a state has given coercive power. The different forms of rule had already arisen in slave-owning society. Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet “juridical socialism”. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. It then addresses the question of whether there is a Marxist theory of law. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. In connection with this, we also find the theory of bourgeois jurists-which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting in the interests of the whole society. © 2018 CLT (Holding) Ltd. CLT (Holding) Ltd is a company limited by shares registered in England & Wales with number 11150350 and address as listed in the Register of Companies. But it is nevertheless incomplete. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand “that the legal idea is a purely methodological means for the ordering of spiritual life”. The unattractive class essence of the state, most often and most eagerly, is hidden by clever combinations of legal formalism, or else it is covered by a cloud of lofty philosophical legal abstractions. According to Marxism the meaning of history is that man's destiny lies in the creation of a Communist society where men will experience a higher stage of being amounting to the realization of true freedom. Friedrich Engels, “Socialism: Utopian and Scientific” [1880], in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978) 713. Karl Marx, “On the Jewish Question” [1844], in Early Writings, trans. to the defence of the elimination of individual responsibility and wage egalitarianism. Marx’s early writings on the state were formulated as a critique of Hegel’s political and social philosophy. But Stammler is not embarrassed by the scantiness of factual argument. Then all the other types of law must be declared non-existent. 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. In fact, Marxist theory of state of the sixties and seventies of the nineteenth century has been reformulated by the continental thinkers. The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. Sorry, your blog cannot share posts by email. Attempts to establish any general abstract laws of the movement of state forms – with which bourgeois theorists of the state have often been occupied – have nothing in common with science. Similarly, in the unpublished German Ideology, Marx and Engels noted that “the social organization evolving directly out of production and commerce” in all ages forms the “basis of the State and of the rest of the idealistic superstructure”.17Karl Marx, “The German Ideology” [1846], in Robert C. Tucker (ed), The Marx-Engels Reader (New York: W. W. Norton, 1978), 163. This classification is very typical of the confusion which bourgeois scholars consciously introduce into the question of the state. It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society. It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. Hegel had correctly recognized that bourgeois claims to the right to private property created social antagonisms that alienated individuals from both their social bonds and the products of their labour. References A second major tributary of thinking about the state came from debates in Italian Marxism following the rise of fascism. Chapter I of this collective work is translated below, The Marxist Theory of State and Law, and was written by Pashukanis himself It should be noted that this volume exemplifies the formal transformations which occurred in Soviet legal scholarship during this heated period. The basic question – do relationships exist that enter into the content of law, which are not, however, relations of production and exchange? The state … Not wishing to recognize the basic fact, i.e. Your email address will not be published. Law, for bourgeois sociologists, becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class. In studying bourgeois revolutions, French restorationist historians – Guizot, Mineaux and Thierry – concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. Despite this general proliferation of interest in Marxist critiques of pluralist and elitist theories of power, by the mid-1980s, the research framework entered a period of decline alongside the New Left.38Rafael Khachaturian, “Bringing What State Back In? Ralph Miliband, “Marx and the State” (1965) 2 Socialist Register 278; Axel van den Berg, The Immanent Utopia: From Marxism on the State to the State of Marxism (Princeton: Princeton University Press, 1988). 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