Relationship and the Norm
As the wealth of capitalist society assumes the form of an enormous accumulation of commodities, society presents itself as an endless chain of legal relationships.
The exchange of commodities assumes an atomized economy. A connection is maintained between private and isolated economies from transaction to transaction. The legal relationship between subjects is only the other side of the relation between the products of labour which have become commodities. The legal relationship is the primary cell of the legal tissue through which law accomplishes its only real movement. In contrast, law as a totality of norms is no more than a lifeless abstraction.
Nonetheless, the standard view posits objective law or a norm as the base of the legal relationship both logically and in reality. According to this conception, a legal relationship is generated by an objective norm:
The norm of the right to demand repayment of a debt does not exist because creditors usually demand repayment, but on the contrary creditors demand repayment because the norm exists; law is not established inductively from observed instances, but by deduction from a rule established by someone. [21]
The expression, “the norm generates the legal relationship”, can be understood both in the real and logical sense.
Let us turn to the first of these. Above all it should be noted that the totality of norms, written and unwritten, belongs per se more to the sphere of literary creativity, a situation acknowledged frequently among the jurists themselves.
This aggregate of norms obtains real significance only because of those relationships which are conceived of as having arisen and, in fact, have arisen according to these rules. Even the most consistent advocate of the pure normative method, Hans Kelsen, had to recognize that somehow a slice of real life, i.e. of the actual conduct of people, had to be harmonized with the ideal normative order. In this sense, to consider the statutes of tsarist Russia as law currently in effect is possible only in an insane asylum. The formal juridical method, which is concerned only with norms which are “considered as law”, can assert its independence only within very narrow limits, only so long as the tension between fact and norm does not exceed a definite limit. In material reality a relationship has primacy over a norm. If not a single debtor repaid a debt, then the corresponding rule would have to be regarded as actually non-existent and if we wanted nevertheless to affirm its existence we would have to fetishize this norm in some way. Indeed a great many theories of law are concerned with such fetishism, justifying the preoccupation on very slender methodological grounds.
Law as an objective social phenomenon cannot be exhausted by a norm or a rule, whether written or unwritten. A norm as such, i.e. in its logical content, either is directly derived from existing relationships already or, if it is published as statutory law, then it presents itself only as a symptom by which one may assess, with some degree of probability, the likely emergence of the corresponding relationships in the near future. It is not sufficient to know the normative content of law in order to confirm its objective existence. It is necessary to know if this normative content is realized in practice, that is in social relationships. A common source of confusion is the dogmatic jurist’s method of thought according to which the concept of operative law and operative norm does not conform to what the sociologist or historian understands as objectively substantive law.
When a dogmatic jurist decides the question of whether a given norm of law is operative or not, he usually does not have in mind the question of the presence or absence of a particular objective social phenomenon. Instead, he is concerned only with the presence or absence of a logical connection between the given normative provision and a more general normative premise. [22]
Thus, the norm is the only thing that exists for the dogmatic jurist who, confined to the narrow framework of his purely technical task, may serenely equate law and norm. In the case of customary law he must turn to reality regardless. But when statutory law is the jurist’s only normative assumption (expressed in his technical language, the source of law), then the jurist’s conclusions, and his dogma about “operative” law, are by no means obligatory for the historian who wants to study the law actually existing. Scientific, i.e. theoretical, study can deal only with facts. If certain relationships are actually formed this means that the corresponding law has been created. If a statute or decree was merely published, but the corresponding relationships did not in fact arise, this means there was an attempt to create law but the attempt failed. [23]
It is possible moreover to modify this thesis and make its cornerstone the objective social regulatory forces or, as jurists express it, the objective legal order, instead of norms. [24] But even in this new formulation, the thesis can be subjected to further criticism. If social regulatory forces are understood to be the same relationships in their regularity and constancy, then we have a simple tautology. If instead they are understood as a special, consciously organized order ensuring and guaranteeing the given relationships, then the logical error will be entirely clear. It is impossible to say that the relationship between creditor and debtor is generated by a coercive order which exists in a given state for recovering debts. This objectively existing order ensures, but certainly does not generate the relationship. This is not mere scholasticism – that is best shown by the fact that we can conceive of, as well as find, a tremendous variety of historical examples of the ideal functioning of this externally coercive and regulatory social apparatus, and consequently the most diverse degrees in which relationships are guaranteed. Moreover these relationships themselves do not undergo any structural changes. We can imagine so extreme a situation as when except for the two parties entering the relationship no other third force exists capable of establishing a norm and guaranteeing its observance (for instance some contract between the Varangians and the Greeks): the relationship remains even here. But one merely needs to imagine the disappearance of a party, i.e. of the subject as the bearer of a distinct autonomous interest, and the very possibility of a relationship also disappears.
In this respect one may argue that if one departs from the objective norm, then the very concepts of legal relationship and legal subject are in abeyance, lacking definition. In general, this objection reveals the very practical and empirical spirit of modern jurisprudence. It knows but one truth; that any lawsuit is lost if the party cannot rely on an appropriate paragraph of some statute. However, the belief that a legal subject and a legal relationship do not exist and are not definable external to an objective norm, are just as theoretically mistaken as the belief that value does not exist and is not definable outside the framework of supply and demand (because empirically it is reflected precisely in price fluctuations).
The prevalent style of legal thought which initially posits the norm as the authoritatively established rule or conduct, is distinguished by that same incisive empiricism which-also seen in economic theories-goes hand in hand with extreme and lifeless formalism.
Supply and demand can exist for any objects including those which are by no means the product of labour. The conclusion can be drawn from this that value may be defined without any reference to the socially necessary labour time required for the production of a specific commodity. The empirical fact of an individualized value serves as the basis for a formal-logical theory of marginal utility.
Similarly, norms issued by the state may deal with the most varied objects that have very different qualities. From this the inference can be made that the essence of law is exhausted by the form of command or order which proceeds from higher authority, and that the very substance of social relationships contains no elements which could generate the legal form. The empirical fact that relationships protected by the state are better secured is placed at the foundation of the formal-logical theory of legal positivism.
Our question, expressed in the Marxist terms of historical materialism, is reduced to the problem of the relationship between the legal and political superstructures. If a norm is recognized as the dominant element in all relationships then, before seeking the legal superstructure, we must assume the presence of a norm-establishing authority, i.e. in other words a political organization. Thus we would have to conclude that the legal superstructure derives from the political superstructure.
However, Marx himself emphasizes the fact that the basic and most deeply set stratum of the legal superstructure – property relationships – is so closely contiguous with the base that they are “the same relationships of production expressed in legal language”. The state, i.e. the organization of political class domination, develops from definite relationships of production and property. Production relationships, logically expressed, comprise what Marx, following Hegel, called civil society. The political superstructure, and in particular the state apparatus, is a secondary, derivative element.
The way in which Marx envisioned the relationship between civil society and the state is apparent from the following quotation:
The egoistic individual of bourgeois society may in his insular imagination, in his lifeless abstraction, depict himself as an atom, i.e. a coherent and self-sufficient being, without needs or embellishments. The harsh reality is that our sensory perceptions are not concerned with his fantasies. His feelings compel him to believe in the reality of the external world and also of other individuals; every day he is reminded that the external world is not empty, but that it is the external world which fills his stomach. Each of his natural activities, each of his qualities, and each incentive to five becomes a requirement, a need which transforms his egoism into a hunger for the objects and people of the external world. But since the need of one individual has no inherent meaning for another egoistic individual (who has the means for satisfying this need), and since accordingly the need is not directly linked with its satisfaction, then each individual is compelled to make this bond in order to become in his turn the intermediary between another’s need and the object of that need. Thus, natural necessity is the characteristic of the human condition, However alien they may seem to one another, the members of civil society are united through self-interest. Civil, not political life, this is the real bond. It is not the state that binds the atoms of civil society, but the fact that they are atoms only in imagination and transcendental fantasy. In reality they are very unlike atoms-they are not divine egoists, but egoistic human beings. Only political superstition forces us to believe that civil society is the creation of the state; on the contrary, the state is the creation of civil society. [25]
Marx returns to the same question in another article, Moralising Criticism and Critical Morality, where, in a polemic with the representative of true socialism, Heinzen, he writes:
If in general the bourgeoisie politically, i.e. with the help of state power, “supports unjust property relationships” [Marx puts Heinzen’s words in quotation marks here], then it does not create them. “Unjust property relationships” aided by the modern division of labour, the modem forms of exchange, competition, concentration, etc., do not flow from the political domination of the bourgeois class, but, on the contrary, the political domination of the bourgeois class derives from these modern relationships of production – which bourgeois economists proclaim as inevitable and eternal laws.
Thus, the path from production relationships to legal or property relationships is shorter than imagined by so-called positivist jurisprudence, which cannot function without an intermediate link-state power and its norms. Man as a social producer is the assumption from which economic theory proceeds. The general theory of law must proceed from this same basic assumption. Thus, for instance, the economic relationship of exchange must be present for the legal relationship of the contract of purchase and sale to arise. In its real movement, the economic relationship becomes the source of the legal relationship, which first emerges at the moment of a controversy. A dispute, a conflict of interest, elicits the form of law, the legal superstructure. In a dispute, i.e. in a lawsuit, the parties engaged in economic activity already appear as parties, i.e. as participants in the legal superstructure; the court in its most primitive form – this is the legal superstructure par excellence. Through the judicial process the legal is abstracted from the economic, and appears as an independent element. Law historically emerged from controversy, i.e. from a claim, and only thereafter did it overlap with the earlier (purely economic or factual) relationship. From the very beginning it thus assumed a dual nature economic and legal. Dogmatic jurisprudence ignores this sequence and at once begins with the end result-with abstract norms through which the state, so to speak, juridicizes its actions and infuses all social spaces. The basic defining element (from the simplistic perspective of relationships of purchase and sale, credit, loans etc.) is not the actual material economic content of these relationships but the imperative directed to the individual in the name of the state. This point of departure is useless to the legal practitioner both for the study and explanation of the concrete legal structure, and particularly for the analysis of the legal form in its most general definitions. State power injects clarity and stability into the legal structure but it does not create its preconditions which are rooted in the material relationships of production.
Gumplowicz, in his Rechtsstaat und Sozialismus, of course comes to the directly opposite conclusion proclaiming the primacy of the state, i.e. of political domination. Turning to the history of Roman law, he thinks that he has succeeded in proving that ,call private law was once public law”. In his opinion this was because all the most important institutes of Roman civil law, for example, emerged as privileges of the ruling class, as public law advantages in the hands of the victorious group for the purpose of consolidating its power.
It cannot be denied that this theory is convincing, to the extent that it emphasizes the element of class struggle and ends the idyllic view of the emergence of private property and power. But Gumplowicz makes two major errors. First, he gives coercion such a constructive role, and loses sight of the fact that every social order, including those which were formed on the basis of conquest, is determined by the specific conditions of the social forces of production. Second, in speaking of the state he erases any difference between primitive relations of domination and “public power” in the modern, i.e. bourgeois sense of the word. He therefore infers that private law is generated by public law. But from the fact that the most important institutes of the ancient Roman ius civile (ownership, the family, the procedure for inheritance) were created by the ruling class to support their domination, it is also possible to draw the diametrically opposed conclusion-that “all public law was once private law”. This will be just as true, or rather just as false, because the antithesis between private and public law corresponds to much more developed relationships and loses its meaning and application in the primitive era. If the institutes of the ius civile really were a mixture of features of public law and private law (using modern terminology), then they equally included religious and, in a broad sense, ritualistic elements. Consequently, at this level of development the purely legal element was inseparable from its reflection in the general conceptual system.
The development of law as a system was evoked not by the requirements of the state, but by the necessary conditions for commercial relations between those tribes which were not under a single sphere of authority. This is recognized, incidentally, by Gumplowicz himself. Commercial relations with foreign tribes, with nomads, and plebeians, and in general with those not participant in the union of public law (in Gumplowicz’s terminology), ushered in the ius gentium, which was the prototype of the legal superstructure in its pure form. In contrast to the ius civile, with its undeviating and ponderous forms, the ius gentium discards all that is not connected with the goal – with the natural basis of the economic relation. Public law embodies the nature of this relationship and therefore appears as “natural” law; it strives to reduce this relationship to the minimal number of assumptions, and therefore develops easily into a logically structured system. Gumplowicz undoubtedly is right when he equates legal logic with the logic of the civilian, but he is mistaken in thinking that the system of private law could have developed, so to speak, in a derivative fashion from public power. His train of thought is approximately as follows: because private disputes did not directly or materially touch upon the interests of authority, then the latter gave the corpus of jurists full freedom to refine their mental abilities in this sphere. In the field of public law, conversely, reality resisted the jurists’ efforts, because authority tolerates no interference in its own affairs and does not recognize the omnipotence of juridic logic.
It is most obvious that the logic of juridic concepts corresponds with the logic of the social relationship of commodity production, and that the history of the system of private law should be sought in these relationships and not in the dispensation of the authorities. On the contrary, the logical relationships of domination and subordination are only partially included in the system of juridic concepts. Therefore, the juridic concept of the state may never become a theory but will always appear as an ideological distortion of the facts.
Wherever the first layer of the legal superstructure exists, we find that the legal relationship is generated directly by the existing material production relationships of people.
From this it follows that for the analysis of the legal relationship, in its simplest form, there is no need to proceed from the concept of a norm as an external authoritative command. It is sufficient to take as a basis a legal relationship “the content of which originates in the economic relation itself” (Marx), and to study the “legal” form of this juridic relationship as one of its partial aspects.
The question of whether a norm should be considered a prerequisite of a legal relationship in historical reality, led us to the problem of the relationship between the legal and political superstructures. On logical and systematic grounds, the problem seems to be the relation between objective and subjective law.
In his text on constitutional law, Duguit called attention to the fact that the word “droit” signified “things which are undoubtedly deeply intermingled, but which are extremely different from one another”. Here, he means law in the objective and subjective senses. In fact we come here to one of the darkest and most disputed areas of the general theory of law. Before us is some sort of strange dual concept; although both aspects are located at different levels, they nevertheless undoubtedly condition each other. Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals “to be disassociated, yet integrated in society”. On the one hand, law completely merges with external authority, and on the other it completely opposes every external authority not recognized by it. The duality of law as the synonym of official state power, and as the slogan of revolutionary struggle, is the arena for unlimited controversy and the most impossible confusion.
Consciousness of this deep and hidden contradiction produced mighty efforts somehow to eliminate this troublesome conceptual dichotomy. For this purpose no small number of attempts were made to adopt one of the “meanings” at the sacrifice of the other. Thus, for instance, the same Duguit, who in his treatise declares the expressions-objective and subjective law-”successful, dear, and exact”, in another of his works refines the proof that subjective law is “simply a misunderstanding, a metaphysical conception untenable in an era of realism and positivism such as ours”.
The opposite trend, whose German representative is Bierling, and among us the psychologists headed by Petrazhitsky, are inclined to declare objective law “a fantasy”, deprived of real significance “an emotional projection”, a product of the objectification of internal i.e. psychological, processes etc.
Discarding for now the psychological school and trends related to it, let us consider the view whereby law should be understood exclusively as an objective norm. Proceeding from this concept we have, on the one hand, an authoritative prescription of the necessary (or the norm), and on the other the subjective obligation corresponding to, and generated by it.
Dualism is apparently uprooted, but this is merely a temporary victory, because as soon as we move to the practical application of this formula, immediate attempts are made by circuitous and indirect routes to introduce those contours necessary for the conceptual creation of subjective law. We now return to the same dichotomy, with the only difference that one part of it, subjective law, is artificially depicted as some species of ghost; no combination of imperatives and obligations can provide us with subjective law, in the independent and real sense in which any proprietor of bourgeois society embodies it. In fact, it suffices to exemplify property alone to be convinced of this. If the attempt to reduce the law of property to prohibitions directed to third parties is no more than a logical confusion, an ugly and inverted concept, then the depiction of the bourgeois law of property as a social obligation is also a mystification. [26]
Every owner and everyone around. him, understands clearly that the right belonging to him as an owner has only this in common with an obligation: they are polar opposites. Subjective law has primacy for it is ultimately based on a material interest which exists independently of external, i.e. conscious, regulation of social life.
The subject as the bearer and addressee of all possible demands, and the chain of subjects bound by demands addressed to one another, is the basic juridic fabric corresponding to the economic fabric, i.e. to the social relations of production which depend on the division of labour and exchange.
Social organization, including the instruments of coercion, is the concrete totality to which we must turn, having previously understood the legal relationship in its pure and simplest form. Thus, obligation as the result of an imperative or order, is now the actualizing and complicating element in the consideration of the legal form. In its most abstract and simple form, a legal obligation must be considered as an expression and correlation of a subjective legal claim. In the analysis of a legal relationship we clearly see that an obligation does not exhaust the logical content of the legal form. It is not even an independent element of it. An obligation always appears as an expression or correlation of an appropriate legal right. The obligation of one party is what is owed to and therefore what belongs to another. What appears as a right for the creditor appears as an obligation for the debtor. The category of legal right becomes logically complete only when it includes a bearer and an owner of rights, whose rights are neither more nor less than the obligations of others to him.
Thus, the legal relationship not only gives us law in its real movement, but also reveals the most characteristic peculiarities of law as a logical category. Conversely, the norm itself, as a prescription of what is required, constitutes the elements of morality, aesthetics and technology as much as of law.
The legal order is distinguished from every other social order in that it comprises isolated, private subjects. A norm of law acquires its differentia specifica, distinguishing it from the general mass of regulatory rules – moral, aesthetic, utilitarian etc. – because it presupposes a person endowed with a right and actively asserting it.
The attempt to make the notion of external regulation the basic logical element in law leads to the equation of law with the authoritatively established social order. This current of legal thought truly reflects the spirit of that period when large-scale capitalist monopolies and imperialist policy replaced the Manchester School and free competition.
It is not difficult to show that the idea of unconditional obedience to an external norm-establishing authority has nothing in common with the legal form. It is sufficient to take examples which have been marked out with extreme rigour and which are therefore clearest examples of such a structure. One example could be the military unit, where the majority of persons are subordinated in their movements to general orders whose single, active and autonomous origin is the will of the commander. Another example is the Jesuit order. Here, all members blindly and uncomplainingly fulfil the will of the leader. It is sufficient to think of these examples to conclude that the more consistently the basis of authoritarian regulation is applied, thereby excluding any suggestion of a separate and autonomous will, the less will be the opportunity for the application of the category of law. This is particularly sharply felt in the field of so-called public law. Here, legal philosophy faces the greatest difficulties. At the same time as civil law, operating at the primary legal level, broadly and confidently uses the concept of subjective rights, the application of this concept in the theory of public law steadily creates misunderstanding and contradictions. The system of civil law is therefore characterized by simplicity, clarity and completeness, while the theories of public law are replete with constructs that are rigid, artificial and grotesquely one-sided. The legal form, with its aspect of subjective legal authority, is born in a society consisting of atomized bearers of private, egoistic interest. When all economic life is constructed on the principle of accord between independent wills, then every social function, in one or another explicit way, assumes a legal nature, i.e. becomes not merely a social function but also the legal right of the person who fulfils this function. However, since private interests cannot inherently achieve such full development and overwhelming significance in the political organization as they can in the economy of bourgeois society, therefore even subjective public rights act as something ephemeral, deprived of real roots, and are constantly in doubt. At the same time the state is not a legal superstructure-it can merely be imagined as such.
Legal theory cannot equate “the rights of parliament”, “the rights of executive authority” etc., for example, with the creditor’s right to repayment of a debt. This would be to place a distinct private interest where bourgeois ideology presumes the authority of a general impersonal state interest. But at the same time every jurist knows that he cannot invest these rights with any other basic content without the legal form escaping him. Public law can exist only as the reflection of the form of private law in the sphere of political organization, or else it ceases to be law. Attempts to depict a social function as it really is, i.e. simply a social function, and a norm merely as an organizing rule, mean the extinction of the legal form. However, the real premise for the transcendence of the legal form and legal ideology is that social condition in which the very conflict between individual social interests has become superfluous.
A characteristic feature of bourgeois society is the fact that general interests are alienated from private ones, and are opposed to them. But in this opposition they unwillingly adopt the form of private interests, i.e. the form of law. Thus, as should be expected, the legal elements of state organization are primarily those which harmonize with the system of antagonistic, isolated, private interests.
Thus, the very concept of public law may be developed only in that process in which, figuratively, it constantly diverges from private law, trying to define itself as the latter’s antithesis, and then turns to it as if it were its centre of attraction.
The attempt to proceed in the reverse direction, i.e. to find the basic definitions of private law (which are nothing other than the definitions of law in general) by using a norm as the conceptual platform, can produce nothing except lifeless formal concepts, fraught with internal contradiction. Law as a function ceases to be law, and power without the private interests supporting it becomes elusive and abstract, easily becoming its antithesis, i.e. an obligation (every public right is at the same time an obligation). just as the legal “right” of the creditor to receive repayment is elementary, clear and “natural”, so the legal “right” of parliament to approve the budget is tenuous and problematic. If, in civil law, scholastic arguments are conducted on the level of what Jhering called legal symptomatics, then the very basis of jurisprudence is placed in jeopardy. This is the source of methodological distortion and hesitation. It is this which threatens to turn jurisprudence into a hybrid of sociology and psychology.
Notes
21. G. Shershenevich, The General Theory of Law (1910), Moscow, p.274.
22. The Russian language, incidentally, derives the designations “law in effect” and “law in force” from the same root. In German, the logical distinction is facilitated by the use of two very different verbs: wirken (in the sense of in effect, or being realized) and gelten (in the sense of being significant, i.e. logically related to a more general normative proposition).
23. The point of view expressed here by no means signifies a denial of class will as a factor of development, an abjugation of planned interference in the course of social development, “economism”, fatalism and other terrible things. A revolutionary political action may accomplish a great deal; it can realize for tomorrow that which does not exist today, but it can not cause that which did not in fact exist in the past. On the other hand, if we affirm that the intention to construct a building – and even the plan of the building – is still not the actual building, then it does not follow from this that neither the intention nor the plan are essential for the construction of the building. But when the matter has gone no further than the plan we cannot affirm that the building has been constructed.
24. However, it is necessary to declare that social-regulatory activity can operate without previously fixed norms. The fact of so-called judicial lawmaking convinces us of this. Its significance is particularly clear in those periods when the centralized enactment of laws was generally unknown. For the ancient German judges, therefore, the concept of a norm given externally was entirely alien. Collections of rules of every type were, for the Schoffengericht, not binding laws, but were a heuristic device by which they formed their own opinion. See J. Stintzing, Geschichte der Deutschen Rechtswissenschaft (1880), vol.I, p.39.
25. K. Marx and F. Engels, The Holy Family, or a Critique of Critical Criticism (1844), in Marx and Engels Collected Works (1975), Progress Publishers, Moscow, vol.4, pp.120-121.
26. In his commentary on the Civil Code of the RSFSR, Goikhbarg stresses that advanced bourgeois jurists still refuse to consider private property as arbitrary subjective law, but that they see it both as rights accruing to the individual and as positive obligations with respect to the whole. In particular, Goikhbarg relies upon Duguit. Duguit affirms that an owner of capital must be defended by the law only because and to the extent that he fulfils a socially useful function in providing a correct application for his capital.
Duguit’s statement – that an owner will be protected only when he fulfils a social obligation – is meaningless in such a general form. For the bourgeois state it is hypocritical; for the proletarian state it is a concealment of the facts. For if the proletarian state could directly assign to each owner his social function, it would have done so, taking from the owner the right to dispose of his property. And once it cannot do this economically, this means it is compelled to protect private interests as such, – and that it can only set certain quantitative limits to them. It would be illusory to affirm that every X who has accumulated a certain quantity of money is protected by our laws and courts simply because he provided, or will provide, a socially useful application for money accumulated. But Comrade Goikhbarg forgets about capitalist property in this, its most abstract (i.e. monetary) form, and he argues as if capital only exists in the concrete material form of productive capital. The anti-social aspects of private property may be paralysed only de facto, i.e. by the development of a socialist planned economy at the expense of the market. But no formula, even though derived from the most advanced Western jurists, can transform all transactions concluded on the basis of our Civil Code into socially useful ones, and every owner into a person fulfilling social functions. Such a verbal transcendence of the private economy and private law will only obscure the conditions for their real transcendence.
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