On Marxism, Law and Revolution

Marxism from its very outset took an interest in and vigorously opposed the legal structures of bourgeois class society. The legal system protects, defends and justifies the material relationships of society, along with the exploitation and suppression of the lower orders – in this case the proletariat, the working class. It is sufficient to recall that Marx studied Jurisprudence (legal theory) at University and Lenin undertook law with a view to practice as a lawyer.

Bourgeois society quickly recognized in Marxism its potential nemesis, and so began the various campaigns of denigration, which continue in various forms right up to today. Faced with the First International, the Paris Commune and the Russian October revolution bourgeois hysteria reached profound levels. But with the counter-revolution finding firm ground from the mid 1920s onwards, and acquiring allies among those who claim for themselves a vestige of Marxism, they could afford to relax a little. It became time to undermine Marxism by “making it safe”, by producing a sanitized form of university Marxism supervised by echelons of salaried academics who strive to make a career out of “specializing” in this growth industry. The Jurisprudence we are examining is that of the Anglo-Saxon legal system, which is different in nature to that of the rest of Europe.

Academic Acrobatics

The attacks upon Jurisprudence by Marxism resulted in bourgeois academics seeking to incorporate Marxism within Jurisprudence itself (which is about as practical as incorporating anti-matter within matter). This produced what is called “Marxist Jurisprudence”, which we can justifiably call a contradiction in terms, and has become a part of the subject taught in Universities under the general term Jurisprudence, within the overall scope of Legal Studies.

Incorporating Marxism as “Marxist Jurisprudence” creates glaringly obvious difficulties that the academics cannot avoid. “Marxist theory in one way fits rather awkwardly into the corpus of jurisprudence because the very idea of legal theory is to a significant extent alien to Marxist thought”. Well at least the problem has been spotted, but the incompatibility between Marxism and Jurisprudence has been reduced from totally alien to that of being to “a significant extent alien”. Conjurers and cardsharps have nothing on these guys!

Having stated that there is contradiction between the two systems the work is then to show that Marxism isn’t so much as wrong, but that it is rather impractical, and won’t work anyway. This conclusion will come as an immense relief to the bulk of academia – they don’t want hordes of proletarians storming centres of power, and even less the hallowed corridors of universities.

The way the subject is approached is that a few quotations of Marx and Engels are provided, later on old Engels advances forward the notion of the ‘withering’ away of the state and as the practical experience has led to the contrary so the attack is concentrated against Engels. First there is the Russian Revolution (the works of Pashukanis are usually referred to), then the Chinese Revolution – which leads to caustic comments about no diminishing, never mind withering away, of the state.

To demonstrate that old Engels had obviously lost the plot later “Marxists” such as Karl Renner, who argues that there can be a stability of legal forms despite economic contradictions, are ushered forward in order show how impractical Classical Marxism is. Very recently Gramsci has been added to the list of practical and “flexible” fellows, who will provide the continuing role for Jurists (the exponents of Jurisprudence) no matter which way the economy might develop.

Structure and Superstructure

Marx dealt with his study and critique of jurisprudence in his preface to “A Contribution to the Critique of Political Economy” (1859) and we would direct the reader to reading this in full (which is not quite five full pages), rather than reproduce it here fully.

In that same preface Marx mentions his study of jurisprudence as part of a course centring on philosophy and history. He then went on to deal with the Hegelian philosophy of Law in 1844, from which he concluded that legal relations and political forms could only be understood by examining the material conditions of life, which can only be sought in political economy. He went on further to state that the totality of relations of production constitute the economic structure of society, its real foundation, from which arises a legal and political superstructure (which broadly speaking is the state and the political organs of the ruling class) and to which correspond definite forms of social consciousness. This is not viewed in a static way but in a dialectical one, that is over a whole arc of time. We have avoided just quoting Marx, as we wanted to get at the essence of what he was asserting rather than allowing any separation between base and superstructure, which is smuggled in by academic “Marxists”. To further understand this real foundation, the economic structure of society, is what Marx spent the majority of his life studying.

The critique of jurisprudence has been widened out into an assault upon bourgeois society as a whole, and little more needs to be said, from the Marxist side. As far as Jurisprudence is concerned Classical Marxism (as it is referred to) needs to be denigrated, while the later more practical “Marxists” are given an outing. The schema of presentation of this subject goes as follows:

1. After a basic introduction about the political position of Marx and Engels is given, which includes Hegelian and Marx’s dialectical materialism, Engels’ position of the withering away of the state (as opposed to the to its abolition according to the anarchists) is explained.
2. E. B. Pashukanis and early Marxism-Leninism – Evgeny Bronislavovich Pashukanis was the leading Soviet jurist and ultimately vice commissar for justice for the period of the New Economic Policy and the first two five year plans. Law was for him a bourgeois phenomena expressing class domination and a temporary weapon in the transition from the old to the new order. He was an implacable opponent of “proletarian law”. As the economy can only be a bourgeois one, based upon commodity exchange relations, once the market has gone the law in all its dimensions will wither away.
3. A. Ia. Vyshinsky and socialist legality – after the purging of Pashukanis in 1937 (as a ‘wrecker’) Vyshinsky, who was the organiser of the Moscow Show Trials and as the Procurator General of the Russian legal system was the leading Stalinist jurist. He scorned the idea of there being no socialist law and trumpeted to the world that only under socialism would the law find its highest development. It was under this new “socialist” law that the final purges took place, and the filling of the Gulags through meeting quotas for the use of slave labour. The Vyshinsky period is greeted by the experts in Jurisprudence as the introduction of a mature system of law. It is also gratifying for them, no doubt, that there will still be a need for law (and lawyers) in a future “socialist” society.

We have placed the arguments in as concise a form as possible. It will be seen that the Russian Revolution (which includes for them the Stalin period) is used to contradict what Engels pointed out about the withering away of the state. The notion is advanced that if anything the state and its role (in particular its legal system) had grown and been strengthened. In order to get away with this line of argument the Pashukanis period is extended backwards to embrace the “War Communism” period, that is 1918 –21. This is actually false and seeks to gloss over the period represented by Stuchka, the period of the open Dictatorship of the Proletariat before the retreat of the New Economic Policy.

The Abolition or the Withering Away of the State?

Marxism has always asserted, against the anarchists and others, that the state is not abolished but rather dies away. There is the need for the Dictatorship of the Proletariat, which became clear from the example of the Paris Commune of 1871.

But is this same Dictatorship of the Proletariat a state in the ordinary meaning of the word? A state is usually seen as a force standing over society, protecting the interests of a minority and keeping the exploited classes in order. The proletarian state, and better described as proletarian state power, is different in that it is there not merely to defend property relations but seeks to abolish them in due course. It does not protect the interests of minority classes, but is the result of the constitution of the proletariat as the ruling class in society in order to suppress and incorporate all other classes, and so abolish classes altogether. It does this through the abolition of property, by the transformation of production from the needs of the market (for profit) to the meeting of human needs. With this the economy is transformed by being taken over and incorporated into this same state power.

So instead of keeping society in order, in check, proletarian state power has as its objective the abolition of classes, and the creation of a classless society: communism. Therefore a function of this same state power is to render itself superfluous, redundant, and so the notion of the state “withering away”, as expounded by Engels, is an apt one. All the functions of the state will not disappear, those still in existence will be reduced to the mere administration of things. The need for compulsion will have died out as human activity becomes united in striving for the great goal of rational production in order to satisfy human needs. Whatever former state power functions are left are those to maintain the proper functioning of human society (i.e., electrical power regulations, transport coordination, prevention and cure of diseases, major emergencies, etc.).

The proletarian state power (and we have no reservations in using openly such a concept) has the functions of the previous states in history, bodies of armed men, compulsion, etc, but it is the most powerful known in history – and the last one. The scale of involvement is more profound: under feudalism the state involved landowners and merchants by the thousand, under capitalism the bourgeoisie is organised by the ten thousand whilst the proletariat, as a class organised as the ruling class, is involved by the million in the proletarian state. Previous states stood over society to protect the property relations, whilst under proletarian rule the means of production and distribution become part of the proletarian state power function. The direct control of the means of living, the production and distribution of the necessities of life (in its broadest sense) will ultimately be more compelling, more convincing, than the point of the bayonet.

Victory of Communism, Not of Socialist Law

What we have just stated is exactly in line with that of Stuchka, and we have the briefest mention in the Textbook on Jurisprudence, from which we commenced at the beginning of this work. In 1927 Stuchka stated: “Communism means not the victory of socialist law, but the victory of socialism over any law, since with the abolition of classes with their antagonistic interests, law will die out all together”.

Stuchka is mentioned as the mentor of Pashukanis, and it is inferred that the pupil had transcended the master. Nothing more is said. It is left as if there is nothing of any further importance to say. The publication of Pashukanis’ main work, Law & Marxism: A General Theory, does not mention any of this at all. It was left to another work, Pashukanis: Selected Writings on Marxism and Law, to shed a little light on the subject.

“By the late 1920s, as a result of his scholarly reputation, Pashukanis had become the doyen of Soviet Marxist jurisprudence, eclipsing even his juridical mentor Piotr Stuchka”.

Stuchka was a Bolshevik jurist and as one of the early Soviet Commissars of Justice and the author of Decree No 1 on the Soviet Court, wrote on the nature of law as a “system of relationships which answers to the interests of the dominant class and which safeguards that class with organized force.” In the days following the October Revolution Stuchka was involved in the physical and political possession of the higher courts in Russia. Finding that the judges had fled, and concerned members of staff confused as to what they should do, he quickly said that they should be on the Judge’s benches, and the former judges should be banished to the antechambers. It is a classic example of the “world turned upside down”, or to paraphrase Marx on Hegel placed the right way up! A simplified system of People’s Courts and Revolutionary Tribunals was set up deal with problems, and they were light years away from how the old court system operated.   ## The Legal Structure of the October Revolution

Within one month of the October revolution the hierarchy of the court structure was abolished. A dual system of local people’s courts and revolutionary tribunals developed. The whole system was simplified, and any law not needed for the transition between capitalism and communism was swept away (see Decree Abolishing Classes and Civil Ranks, November 1917). A new type of judge was appointed, guided by “revolutionary consciousness” rather than being trained in the law. This was how the working class, as the dominant class, resolved legal issues.

During 1918-20, the period of Civil War, known as War Communism, with the suppression of the market, formation of the Red Army and Secret Police (Cheka), saw the Bolsheviks begin the process of “re-legalization”. Extreme situations demand extreme measures, and the attacks by the bourgeoisie (both internal and external) led to additional state-type apparatuses which were there to defend the proletarian conquest of power. We use the term state-type because they have certain similarities with bourgeois and pre-bourgeois state organs, and are there to defend the very nature of the state (power) itself, but were never intended to be “permanent” and only to exist temporarily (in the historical sense) until the need for them disappears, as classes disappear.

Now we can see that the work of Pashukanis was not only to refute Stuchka, but also that of the October Revolution itself. Law being anything other than bourgeois leaves the door shut on the Dictatorship of the Proletariat, and the ending of property relationships, which was contrary to what was being built in Russia. That law is based upon and arises out of the commodity relations of society is crudely demonstrated by the changed needs of the Five Year Plans having led to Pashukanis altering his works in 1930, and three times publicly recanting, and finally being executed.

Having examined the role and function of “Marxist” Jurisprudence we now turn to how Gramsci is being used against Marx and especially against Engels. But before we deal with Gramsci’s notebooks, we should say something about our relations with Gramsci.

Our party is the continuance of the original Communist Party of Italy formed in Livorno (Leghorn) in 1921. Gramsci, like many others, took place in the formation of the C P d’I, which centred on the political positions defended and fought for even before the First World War, and associated with the name Bordiga. Amadeo Bordiga became the first General Secretary of the Communist party of Italy. With the defeat of the revolutionary struggle on the international level the Moscow leadership were looking for more pliable leaders in the Communist Parties, those who would follow this or that disastrous turn, only to be blamed and discarded in due course. The campaign to denigrate and undermine the Left in the Communist Party of Italy was prepared by Stalin placing his first such leader on the Communist party of Italy – and that leader was none other than Antonio Gramsci. Gramsci has since then become an icon for the Stalinists, euro-communists, Maoists, assorted trotskists, libertarians and now bourgeois jurists.   ## Gramsci on State and Law

And now we can proceed to review the review of Gramsci on state and law, and how he is used against both Marx and Engels.

We now move into an area of great confusion. Even the opening quotation shows an appalling ill-discipline: “If every State tends to create and maintain a certain type of civilisation and of citizen … then the Law will be its instrument for this purpose…”. Besides challenging the use of the word “if”, and replacing it with “as”, this quotation only makes sense when examining existing societies, and not one in which the proletariat has conquered state power – for socialism isn’t about maintaining “civilisation” (slavery and exploitation) nor the continued status of the citizen, a property respecting category if there ever was one.

Next we move on to culture. Apparently culture is the essence of social living, but the class basis for this is not specified. It seems that culture “is organisation, discipline of one’s inner self … the attainment of a higher awareness, with the aid of which one succeeds in understanding one’s own historical value, one’s own function in life, one’s own rights and obligations.” We were almost expecting the Buddha to make an appearance. Here we have the individual, and the individual alone, without class, class struggle, never mind Marxism. It would appear that the individual by the sheer power of the mind could transcend class-ridden society without the need for historical materialism.

Now “praxis” makes an appearance. This is from the Greek (meaning ‘action’, practice’). Gramsci used Praxis for the unity of theory and practice in his analysis of culture. It now seems that “the revolutionary”, seeking to understand and change the culture of society, must see theory as arising out of practice and being modified by it. Heady stuff this – real powerful thinking going on here folks. Will keep thinkers going for generations. And so on to a theory of law adequate for communist society that apparently involves participation in the struggle to understand and change the law. Why change law, the down-trodden proletarians may ask, when it would be far simpler to get rid of the system upon which it is based – capitalism?

Praxis now has to analyse law as embodying the wider culture of society in which it flourishes. The role of legal theory, its institutions and practitioners must not be ignored. If the role of bourgeois law is not to be ignored, never mind fought against, then society itself needs to be respected and transformed. And so we have in Gramsci the precursor, the theoretical cutting-edge of Stalin’s and Mao’s block of classes, in which the interests of the working class is subordinated to that of other exploiting classes.

And finally we come to the crux of the prison notebooks – the role of intellectuals! It is asserted that Gramsci’s prison notebooks contain a detailed analysis of the role of intellectuals in the 20th century state. For Gramsci there are two types of intellectuals – traditional and organic. The traditional intellectuals are those based upon the existing one’s in society, e.g. writers, teachers, philosophers, jurists, legislators and lawyers. The organic intellectuals are those allegedly emerging from the struggles of the masses for a new society. The role of the new intellectuals is to absorb the positive features of an existing ideology, since no new state or legal structure can begin from zero. It would appear that Marx and Engels had been misguided in abandoning and fighting bourgeois ideology.

All this is summed up in the concept of hegemony – the domination of new ideas within the state and society. Without a revolution to sweep away all the old garbage (and this is one of the functions of a revolution) we have instead the penetration of society by new ideas that reinforce the “common sense” approach to life, culture and society. And so the role of the intellectual replaces that of revolution in the class struggle.

It is now clear that Gramsci has been of use to bourgeois jurists in attacking Marxism, and especially against the defence Engels made about the “withering away” of the state. The political position of Gramsci is not a proletarian one, for the emancipation of the working class, but its continued subjection and exploitation in the interests of society “as a whole” (i.e. in the interests of the exploiting classes of society).