Law and the State
Legal relations by their “nature” do not assume a condition of peace just as exchange initially did not exclude armed robbery, but went hand in hand with it. Law and violence – apparently opposed concepts – in fact are connected with one another in the closest manner. This is true not only for the ancient ages of Roman law, but also for the later eras. Modern international law includes a very solid dose of self-help, repression, reprisals, war etc. Even within the limits of the “developed” bourgeois state the realization of a right is conducted in the opinion of such a capable jurist as Hauriou, by each citizen “at his responsibility and risk”. Marx expressed himself even more sharply: “club law is nevertheless law”. In this there is nothing paradoxical because law, like exchange, is a method of relating atomized social elements. The degree of this separation may historically be more or less, but it is never equal to zero. Thus, for instance, the enterprises belonging to the Soviet state in fact fulfil one general task; but working by the methods of the market they each have their own distinct interest, oppose one another as buyers and sellers, act at their responsibility and risk, and therefore necessarily must be in a legal relationship. The final victory of the planned economy will place them exclusively in a technical-expediency relationship with one another which will destroy their “legal personality”. Accordingly, if the legal relationship is depicted to us as an organized and ordered relationship – thus equating law with the legal order – then in so doing it is forgotten that in fact the legal order is merely a tendency and a final result (and moreover far from perfected), but never the starting point and assumption of a legal relationship. The very condition of peace which appears universal and homogeneous to abstract legal thinking was far from this at the initial stages of legal development. Ancient German law knew various degrees of peace: peace under the roof of a house, peace within the boundaries of a fence, and the limits of a settlement etc. A greater or lesser degree of pacification found its expression in a greater or lesser harshness of punishment provided for the violation of peace.
A condition of peace becomes necessary where exchange assumes the nature of a regular phenomenon. In those cases when there were too few prerequisites for the preservation of peace, the parties engaging in exchange preferred not to meet with one another but to view the commodities in each other’s absence. But, in general, exchange requires that not only commodities but also people meet. In the age of clan life, every outsider was considered as an enemy and was as defenceless as a wild beast. Only the custom of hospitality made possible relationships with other tribes. In feudal Europe the Church tried to limit the uninterrupted private wars, by proclaiming a so-called peace of god (for specific times). At the same time fairs and local markets began to enjoy special privileges in this respect. Tradesmen going to the market received special safe passage, their property was guaranteed from arbitrary appropriation; at the same time the performance of contracts was safeguarded by special judges. Thus, a special ius mercatorum or ius fori was created which then lay at the basis of city law.
Initially, the markets and fairs constituted a part of feudal holdings and were simply profitable, productive items. The gift of the peace of a fair somewhere had the purpose of filling the treasury of some feudal owner and accordingly was intended to effect the private interest of the latter. However, because feudal authority acted as the guarantor of the peace necessary for exchange transactions, it took on a new trait previously uncharacteristic of it, that of a public nature. The authority of a feudal or patriarch type knows borders between the private and the public. The public laws of the feudal lord, with respect to the villain were at the same time his rights as a private owner. On the contrary, his private rights could be interpreted upon desire as political, i.e. public rights. Thus, the ius civile of ancient Rome was interpreted by many, for instance Gumplowicz, as public law since its basic source belonged to a clan organization. In fact, in this case we encounter a legal form being born which still had not developed the internally opposed and correlated definitions of private and public. Authority therefore, bearing the traces of patriarchal or feudal relationships, is characterized at the same time by the predomination of the technical element over the legal. The legal, i.e. rational interpretation of the phenomenon of authority, becomes possible only with the development of exchange and the money economy. These economic forms bring with them an antagonism which with time takes on the nature of something eternal and natural and becomes the basis of every legal teaching about authority.
The “modern” state (in the bourgeois sense) is born at that moment when the group or class organization of authority includes in its bounds a sufficiently broad market relationship. Thus in Rome exchange with foreigners, travellers and others required the recognition of civil legal capacity for persons not belonging to the kin-group union. This already supposed the differentiation between public and private law.
Factual exercise of authority obtains a clear legal nature of public authority when along with it, and independent of it, appear relationships connected with exchange acts, i.e. private relationships par excellence. Acting as a guarantor of these relationships, authority becomes social, public authority, authority pursuing the impersonal interest or order.
The state as an organization of class domination, and as an organization for the conduct of external wars, does not require legal interpretation and in essence does not allow it. This is where so-called raison d’etat (the principle of naked expediency) rules. On the contrary, authority as the guarantor of market exchange not only may be expressed in terms of law, but itself appears as law and only law, and is merged entirely with the abstract objective norm. Therefore, every juridic theory of the state which wishes to embrace all the functions of the latter, necessarily appears inadequate. It may be a true reflection of all facts of state life, but gives only an ideological, i.e. distorted reflection of reality.
Class domination, both in its organized and unorganized form, is much broader than the area which can be designated as the official authority of state power. The domination of the bourgeoisie is expressed in the dependence of the government upon the banks and capitalist groupings, in the dependence of each individual worker upon his employer, and in the fact that the staff of the state apparatus is personally connected with the ruling class. All these facts, and the number of them may be multiplied without limit, do not have any official legal expression. But in a mysterious manner they correspond in their significance with the facts which find their official legal expression, and represent themselves as the subordination of the same workers to the laws of the bourgeois state, to the orders and decrees of its agencies, to the verdicts of its courts etc. Along with the direct and indirect class denomination, there grows an indirect reflected denomination in the form of official state authority as a special force separated from society. With this the problem of the state arises, which presents no fewer difficulties for analysis than the problem of commodities.
Engels considers the state as an expression of the fact that society is hopelessly enmeshed in class contradictions; “so that these opposed classes with antagonistic economic interests”, he says, “did not devour one another and society in hopeless struggle, for this a power became necessary, a power seemingly standing above society, a power which moderated the conflict, and held it within the limits of ‘order’. And this power arising from society but placing itself above it, and more and more alienating itself from it, is the state.” [46] In this explanation there is one passage which is not entirely clear, and it is revealed later when Engels speaks of the fact that state power naturally evolves in the hands of the strongest class, “which, with the help of the state, becomes the politically dominant class”. This phrase provides a reason for thinking that state power is generated not as class power, but as something standing above classes and saving society from dissolution, and that only after its emergence does state power become the object of usurpation. Of course, such an understanding would contradict the historical facts; we know that political apparatuses were created everywhere by the forces of the ruling class, and were the work of that class. We think that Engels himself also proposed such an interpretation, but however that may be his formula has remained unclear. The state arises because otherwise the classes would have mutually exterminated themselves in an intensified struggle, and thus society itself would have perished. Accordingly, the state arises when none of the struggling classes can seize decisive victory. This means one of two things: either the state strengthens this relationship – then it is the force above classes, and this we cannot recognize – or it is a result of the victory of one class, but in this case the necessity for a state disappears from society since, with the decisive victory of a class, equilibrium is established and ‘society’ is saved. Behind all these controversies one basic question is hidden: why does the dominance of a class not become that which it is, i.e. the actual subordination of one part of the population to another, but instead assumes the form of official state authority? Or, what is the same, why is the apparatus of state coercion created not as a private apparatus of the ruling class, but distinct from the latter in the form of an impersonal apparatus of public power distinct from society? [47] We cannot limit ourselves to a reference to the fact that for the ruling class it is expedient to employ an ideological mask and hide its class domination behind the screen of the state. Although this reference is entirely indisputable, nevertheless it does not explain why this ideology may be created, and, accordingly why a ruling class may use it. The conscious use of ideological forms is not the same as their origin, which usually does not depend upon the will of people. But if we wish to explain the roots of some ideology we must search out those actual relationships which it expresses. Here, incidentally, we strike upon the fundamental difference between the theological and legal interpretation of state authority. To the extent that in the first instance – the deification of authority – we are dealing with unbridled fetishism and, accordingly, with corresponding impressions and concepts, we do not succeed in revealing anything other than the ideological duplication of reality, i.e. of those actual relationships of authority and subordination. To such an extent the legal conception is merely a biased conception, and its abstractions express one of the aspects of actually existing society, i.e. of commodity-producing society.
Opinion holds that the basis of the competition dominant in the bourgeois-capitalist world does not provide the possibility of connecting political power with the individual enterprise in the way that under feudalism this power was connected with large landholdings. “The freedom of competition, the freedom of private property, ‘equality’ in the market and the guarantee of existence for one class, create a new form of state power-democracy, which places in power the class as a collective.” [48] Although it is most true that “equality” in the market creates a specific form of authority, however, this connection between these phenomena is not entirely how Comrade Podvolotsky sees it. First, authority may be unconnected with an individual enterprise but nevertheless remain the private affair of capitalist organizations. Associations of industrialists, with their war coffers, blacklists, boycotts and strike-breaking patrols, are undoubtedly agencies of authority existing along with the public, i.e. state authority. Second, authority within the enterprise remains the private affair of each individual capitalist. The establishment of the rules of internal order is an act of private legislation, i.e. a true piece of feudalism, however bourgeois jurists may have tried to clothe it in modern dress. Introducing the fiction of the so-called contract of adhesion (contrat d’adhesion for the extraordinary authorization which the capitalist owner receives, reportedly, from the agencies of public authority for the “successful fulfilment of the functions of the enterprise necessary and expedient from this social point of view”.
However, the analogy with feudal relationships is not unconditionally exact here, for as Marx indicates:
the authority which the capitalist enjoys as the personification of capital in the direct process of production, and the social function with which he is invested as manager and master of production, are essentially different from the authority which emerges on the basis of slave, serf, etc. production. On the basis of capitalist production the mass of direct producers is confronted by the social nature of their production in the form of the strictest regulating authority, as the social mechanism of their labour process developed in a complete hierarchy; however, the bearers of this authority use it only as personification of the conditions of labour, in contrast to labour itself, and not as political or theocratic masters as happened in earlier forms of production. [49]
Thus, under the capitalist means of production, relationships of subordination and authority may exist unalienated from the concrete form in which they appear as the domination of the conditions of production over the producers. But the very fact that they do not act in masked form, as under slavery and serfdom, makes them elusive for the jurists.
The state apparatus actually realizes itself as an impersonal “general will”, as “the authority of law” etc., to the extent that society appears as a market. In the market each seller and buyer is, as we saw, a legal subject par excellence. For the categories of value and exchange-value to appear on the stage, the prerequisite is the autonomous will of those engaging in exchange. Exchange-value would cease to be exchange-value, and a commodity would cease to be a commodity, if the exchange ratio is determined by an authority situated above the inherent laws of the market. Coercion, as the command of one person directed to another and supported by force, contradicts the basic assumption of exchange between commodity owners. Therefore, in a society of commodity owners the function of coercion may not appear as a social function, because it is neither abstract nor impersonal. Subordination to the person as such, to man as a concrete individual, signifies for commodity-producing society subordination to arbitrary power, because it corresponds to the subordination of one commodity owner by another. Even coercion, therefore, cannot appear here in its unmasked form as an act of expediency. It must appear as coercion proceeding from some abstract, general person, as coercion exercised not in the interest of the individual from whom it proceeds – for each person in commodity society is an egoist – but in the interest of all the participants in legal transactions. The authority of one person over another is exercised as the authority of law itself, i.e. as the authority of an objective impartial norm.
Bourgeois thought, for which the framework of commodity production is the eternal and natural framework of all societies, therefore declares abstract state authority to be an attribute of every society.
This was more naively expressed by the theorists of natural law, who, basing their teaching on authority in the idea of intercourse between independent and equal personalities, proposed that it proceeds from the principles of social intercourse as such. In fact, they merely developed the different ways in which the idea of authority bound independent commodity owners to each other. This explains the basic features of the doctrine which appears clearly in Grotius. In the market the primary factors are commodity owners participating in exchange. The system of domination is something derivative, secondary, something imposed externally on the existing commodity owners. Therefore, the theorists of natural law consider authority not as a phenomenon which has arisen historically and which is connected with the forces active in a given society, but as abstract and rational. In the exchange between commodity owners the necessity for authoritative coercion arises when the peace has been broken, or when a contract has not been performed voluntarily. Natural law doctrine therefore reduces the functions of authority to the maintenance of the peace, and declares the exclusive purpose of a state to be an instrument of the law. Finally, in the market place a man is a commodity owner by the will of other men, and all are commodity owners by their common will. The theory of natural law thus derives the state from the contract between individual and isolated personalities. This is the skeleton of the doctrine which admits many concrete variations, depending on the historical situation, political sympathies and dialectical abilities of one author or another. This theory admits republican and monarchical tendencies and diverse degrees of democratism and revolutionism.
In general and in its entirety, however, this theory was the revolutionary banner under which the bourgeoisie conducted its revolutionary battle with feudal society. And this determined the fate of the theory. From the time when the bourgeoisie became the ruling class the revolutionary past of natural law began to be troublesome for it, and as quickly as possible the ruling theories hastened to relegate the past to the archives of history. It goes without saying that the theory of natural law cannot stand the least historical or sociological criticism, for it gives an entirely inadequate picture of reality. But the main curiosity consists in the fact that the juridic theory of the state, which took its place in the name of positivism, distorts reality to no less a degree. It is forced to do this for every juridic theory of the state must necessarily proceed from the state as an independent force distinct from society. This is in what its juridic nature consists.
Therefore, although in fact the activity of the state organization occurs in the form of orders and decrees proceeding from individual persons, the juridic theory presumes in the first place that the state, not persons, gives orders and, second, that its orders are subordinates to general norms of law which also express the will of the state.
On this point natural law doctrine does not differ by one iota in its fiction than any of the most positivist of the juridic theories of the state. For the doctrine of natural law the basic argument was that along with all the types of real dependency of one man upon another (this doctrine was exempt from such dependence), there was still one further type of dependence upon the impersonal general will, namely, the will of the state.
But it is just this construction which constitutes the basis of the juridic theory of the state as a person. The natural law elements in the juridic theories of the state lie much deeper than it seemed to the critics of natural law doctrine. They are rooted in the very concept of public authority, i.e. of authority placed above all and addressed to all. Adjusting itself to this concept, the juridic theory inevitably loses its connection with reality. The difference between the doctrine of natural law and the most recent legal positivism is merely that the former much more clearly felt the logical bond between abstract state authority and the abstract subject. It took these mystified relationships of a commodity-producing society, in their necessary context, and therefore produced a model of the classical clarity of constructs. On the contrary, so-called legal positivism does not even take account of its own logical premises.
The Rechtsstaat is a mirage, but a very useful mirage for the bourgeoisie because it replaces the disappearing religious ideology. It hides from the masses the fact of the rule of the bourgeoisie. The ideology of the Rechtsstaat is also more useful than religious ideology because, not reflecting the totality of objective reality, it nevertheless depends on it. Authority as “the general will”, as “the authority of law”, is realized in bourgeois society to the extent that the latter is a market. From this point of view even a police statute may appear to us as embodying Kant’s ideas on a freedom which is limited by the freedom of another.
Free and equal commodity owners meeting in the market are free and equal only in the abstract relationship between buyer and seller. In actual life they are tied to each other by many relationships of dependence. These are the shopkeepers and the large wholesaler, the peasant and the estate owner, the ruined debtor and his creditor, the proletarian and the capitalist. These countless relations of real dependence constitute the true basis of state organization. However, for the juridic theory of the state it is as if they do not exist. Further, the life of the state is based upon the struggle between various political forces, i.e. of classes, parties and all possible groupings; here are hidden the real mainsprings of the state machinery; for juridic theory they are equally inaccessible. Of course, a jurist may show a greater or lesser flexibility in his adaptation to the facts, for example by taking into account written law in addition to those unwritten rules which have been formed in state practice, but this does not change his fundamental position in relation to reality. There is an inevitable divergence between legal proof and that proof which constitutes the goal of historical and social research. It is not merely that the dynamics of social life overturn the rigid legal form, and that therefore the jurist is condemned to be somewhat late in his analysis; even limiting himself to the very day of a fact, the jurist communicates his analysis differently than the sociologist. For the jurist, remaining a jurist, proceeds from the concept of the state as an independent force distinct from all other individual and social forces. From the historical and political points of view the decisions of an influential class, or party organization, have the same and sometimes even greater significance than the decisions of parliament or some other state institution. From the legal point of view, facts of the first type are seemingly non-existent. Conversely, in any decree of parliament, once the legal point of view is abandoned, it is possible to see not an act of the state, but a decision adopted by a particular group, a clique of persons moved by the same individual egoistic or class motives as any other collective. The extreme normativist Kelsen concludes from this that the state in general exists only as an imaginary object-a closed system of norms or obligations. But of course, such barrenness in the subject of the theory of state law must deter practising lawyers. For if not by intelligence, then by instinct, they feel the undoubted practical significance of their concepts in this sinful world and not merely in the kingdom of pure logic. The “state” of jurists, despite all this “ideologizing”, relates to some objective reality much as the most fantastic dream nevertheless depends on reality.
This reality is pre-eminently the state apparatus itself, with its material and personal elements. Before creating completed theories, the bourgeoisie began to construct the state in practice. In Western Europe this process began in city communes. At a time when the feudal world knew no difference between the assets of the feudal lord and the assets of the political union, the public city treasury first appeared in cities, originally as a sporadic and then as a permanent institution; “the spirit of statism” received, so to speak, its material foundation.
The appearance of state forms makes possible the appearance of people who live off these forms, officials and bureaucrats. In the feudal age the functions of administration and the court were fulfilled by the servants of the feudal lord. In the city communes they appeared for the first time in public offices; in the full sense of the word, the public nature of authority found its material embodiment. The absolute monarchy had merely to adopt the public form which had taken shape in the cities and to realize it within a broader territory. All further improvements to the bourgeois state-which proceeded both by revolutionary explosions and by peaceful adaptation to monarchic-feudal elements – can be summed up in one principle: neither of two persons exchanging in the market may appear as an authoritative regulator of the exchange relationship; for this, some third person is required who embodies the mutual guarantee which the commodity owners as owners give to one another, and who is accordingly the personified rule of exchange between commodity owners.
The bourgeoisie put this juridic concept of the state at the basis of its theory, and attempted to realize it in practice. It certainly did the latter, guided by this elementary principle. [50]
For the sake of theoretical purity the bourgeoisie never forgot the other side of the matter, namely that class society is not only a market where independent commodity owners meet, but also an arena of intensified class war in which the state apparatus is one of the most powerful weapons. And in this arena the relationships formed are far from being in the spirit of the Kantian definition of law as the limitation of the freedom of the individual and the minimum limit necessary for common life. Here Gumplowicz is profoundly right when he asserts that “law of this type never existed, for the amount of freedom is determined only by the amount of authority of another, the norm of common existence is dictated not by the possibility of common existence but by the possibility of authority”. The state as an element of force in internal and external policy-this is the correction which the bourgeoisie had to make in its theory and practice of the Rechtsstaat. The more unstable the authority of the bourgeoisie became, the more compromising its corrections became, the more the Rechtsstaat turned into an incorporeal shadow, until finally the extreme intensification of the class struggle forced the bourgeoisie completely to discard the mask of the Rechtsstaat and to reveal the essence of authority as the organized force of one class against another.
Notes
46. F. Engels, The Origin of the Family, Private Property and the State (1884), MESW, vol.3, p.327.
47. In our time of intensified revolutionary struggle we can observe how the official apparatus of the bourgeois state recedes into the background in comparison with the “voluntary guards” of the fascists and their ilk. This once more shows that when social equilibrium is disrupted it then “seeks salvation”, not by creation of “an authority standing above classes”, but by the maximum pressure of the forces of the struggling classes.
48. I. Podvolotsky, The Marxist Theory of Law (1923), Moscow, p.33.
49. K. Marx, Capital (1867), op. cit., vol.3, p.881.
50. The English bourgeoisie, which earlier than others won for itself the domination of world markets, and which felt invulnerable because of its insular position, could go further than others in the practice of the Rechtsstaat. The most consistent actions based on law in the mutual relationships between authority and the isolated subject, and the most effective guarantee that the bearers of authority did not transgress their role as the personification of an objective norm, was the subordination of state agencies to the jurisdiction of an independent (not of the bourgeoisie, of course) court. The Anglo-Saxon system is, in its own way, the apotheosis of bourgeois democracy. But, so to speak, if worse comes to worse in other historical conditions, the bourgeoisie will make peace with a system which could be baptised as a system of “separation of property from the state”, or a system of Caesarism. In this case the ruling clique, by its unlimited despotic arbitrariness (having two directions: internal, against the proletariat, and external, expressed in an imperialist policy), creates the background for the “free self-determination of the individual” in civil exchange.
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