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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
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).
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-
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--
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
(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.
K. MARX
Critique of the Gotha Programme 4C
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
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
LENIN
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
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
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
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
E. B. PASHUKANIS
Theory o f Law and Marxism
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
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
H . BERMAN
Justice in the U.S.S.R.
(1963)
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
VICTOR H . L1
The Role o f Law in Coinrnunist China
(1970)41
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
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.
R . QUINNEY
Critique of Legal Order 45u
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
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
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. . . .