Marxists regard the law based on the will of the proletariat as flexible rather than contradictory, a flexibility that denies the need for a complete legal system. Pashukanis writes: “We demand that our legislation have the highest degree of elasticity. We cannot be bound by any system. Submit your article and let yourself be read by the largest community of critical lawyers with over 4000 subscribers. In the 1920s and 1930s, the progressive codification of Marxism-Leninism in legal and state theory in the USSR continued to be based on the separation between base and superstructure. The most notable treatment of the legal as a reflection of social processes has been Pashukanis` theory of commodity exchange.25Evgeny Pashukanis, Pashukanis: Selected Writings on Marxism and Law, ed. Piers Beirne and Robert Sharlet (London: Academic Press, 1980). Pashukanis theorized law as an expression of the contractual and transactional character of capitalist society; Therefore, the revolution in the relations of production would lead to the withering away of the law and its replacement by the administration after the complete transition to communist society. Right-wing Marxism was a Russian Marxist movement based on a particular interpretation of Marxist theory, whose proponents were active in socialist circles between 1894 and 1901. The most important theoreticians of the movement were Pyotr Struve, Nikolai Berdyayev, Sergei Bulgakov, Mikhail Tugan-Baranovsky and Semyon Frank. The name was derived from the fact that his followers promoted their ideas in legal publications. Nevertheless, after his concerted critique of Hegel`s political philosophy, Marx`s writings on the state remain fragmentary, and their form and tone have been largely influenced by the political context.
Later, Marx`s interpreters had to deal with this shortcoming and its implications. It has been suggested that Marx`s critique of bureaucracy captured the essence of his thoughts on the state in earlier writings, making it less of a priority than criticism of political economy.13Shlomo Avineri, The Social and Political Thought of Karl Marx (Cambridge: Cambridge University Press, 1968), 51-52. However, this interpretation should be questioned, since Marx had at least planned to write about the state as part of the larger project of capital. Others pointed to at least two different interpretations of the relationship between the economically dominant class and the state, leaving open the question of the conditions under which it could be argued that the state had acted in its own interest.14 Ralph Miliband, “Marx and the State” (1965) 2 Socialist Register 278; Axel van den Berg, The Immanent Utopia: From Marxism on the State to the State of Marxism (Princeton: Princeton University Press, 1988). A second unresolved tension was the relationship between the economic and productive base and the political, legal, and ideological superstructure through which these social relations were mediated and expressed.15 For an ongoing debate on the merits of the distinction between base and superstructure, see Anandha Krishna Raj, “Law as Superstructure,” Legal Form (3 October 2018); Nate Holdren, “Some Hasty Musings on Matters Legal and Economic” Rechtsform (18. November 2018); Matthew Dimick, Legal Form “Basis and Superstructure as Ontology” (August 17, 2019); Nate Holdren and Rob Hunter, “No Bases, No Superstructures: Against Legal Economism,” Legal Form (January 15, 2020); Matthew Dimick and Dom Taylor, “More Depth, Less Flatness: Marx`s Negative Ontology of Social Totality,” Legal Form (April 18, 2020). In both cases, it was a question of the degree of autonomy that the State and the law had in relation to the means and relations of production. Today, Marxist theory of the state is largely an open and intellectually pluralistic research framework. What almost all the reports have in common, however, is a rejection of the positivist view of the state as a legal entity limited by its formal constitution. It is recognized that the State has a material existence, as a set of institutions, but also as a set of political, ideological, legal, economic and social practices.
These practices ensure the legitimacy of the state by reproducing it as the representative of the general social interest, while continuing to facilitate the accumulation of capital, mediate relations between competing factions of the capitalist class, and integrate these factions into the global circulation of capital. Reassessments of the legacy of Marxist debates about the state beginning in the 1990s have sought to create a more coherent account based on existing theories or to clarify divisions between these theories.39Bob Jessop, State Theory: Putting the Capitalist State in Its Place (Cambridge: Wiley, 1990); Bob Jessop, The Future of the Capitalist State (Cambridge: Wiley, 2002); Bob Jessop, The State: Past, Present, Future (Cambridge: Polity, 2016); Stanley Aronowitz and Peter Bratsis (eds.), Paradigm Lost: State Theory Reconsidered (Minneapolis: University of Minnesota Press, 2002); Clyde W. Barrow, Critical Theories of the State: Marxist, Neo-Marxist, Post-Marxist (Madison: University of Wisconsin Press, 1993); Clyde W. Barrow, Toward a Critical Theory of States: The Poulantzas-Miliband Debate After Globalization (Albany: State University of New York Press, 2016); Raju J. Das, “State Theories: A Critical Analysis” (1996) 60 Science & Society 27-57. However, a global consensus that reconciles the internal diversity of Marxist positions on the state remains elusive, not least because plausible textual evidence can be found in Marx`s writings for a variety of theoretical positions.40Clyde W. Barrow, “The Marx Problem in Marxian State Theory” (2000) 64 Science & Society 87. There was no dearth of debate and controversy within the Marxist political and legal thought of the state. Part of the difficulty stems from the fragmentary nature of Marx`s writings on the subject. In his notebooks of the late 1850s, published posthumously under the title Grundrisse, he points out that “the concentration of bourgeois society in the form of the state” would be part of the broader systematic critique of political economy that he was pursuing at the time.1Karl Marx, Grundrisse, translated by Martin Nicolaus (Harmondsworth: Penguin, 1973 [1858]), 108. During his lifetime, however, only the first volume of Capital was published, so that this ambitious project remained unfinished. Later commentators were therefore challenged to bring together his scattered writings on the subject from the 1840s to the 1880s into a more coherent and systematic theory.
Marx`s early writings on the state were formulated as a critique of Hegel`s political and social philosophy. Hegel understood the modern state as the embodiment of rationality and universality as they have developed throughout human history. As such, it was the means by which the social fragmentation caused by narrow notions of individual liberty (property rights, trade), facilitated by the emergence of bourgeois society in England, and the radical political egalitarianism of the French Revolution could be reconciled. By virtue of their membership in the political state, individuals were able to overcome their personal, family and commercial interests and thus gain the self-confidence of their own freedom in the objective laws of the state. Hegel saw constitutional monarchy as the form of government that best combined the universal legislative power of the legislature (elected by the corporative organs of civil society) and the special executive power of the civil service, forming a unity represented in the figure of the individual sovereign. In particular, the public service, composed of qualified professionals and open to entry from all strata of society, had the task of safeguarding the “universal interest of the State”.2G. W. F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, Cambridge: Cambridge University Press, 1991 [1820], p. 329.
This chapter begins with a discussion of Marxism, a theory of the meaning of history. According to Marxism, the significance of history is that man`s destiny lies in the creation of a communist society in which people will experience a higher level of being equivalent to the realization of true freedom. Then there is the question of whether there is a Marxist theory of law. General legal theories are based on a belief in the nature of law, which can be called legal fetishism. Marxists reject such a belief, and it follows that they are not inclined to develop a general theory of law as an end in itself. Nevertheless, much remains to be said for Marxists about the law. Beginning in the 1960s, Gramsci`s translation into English and Althusser`s complete retheorization of Marxism further facilitated the critique of basic superstructure models. While following Lenin in asserting that the state is a repressive apparatus or machine, he developed the complementary notion of ideological state apparatuses—an interlocking set of institutions through which state ideology is realized and reproduced through concrete material practices, including legal practices.31Louis Althusser, On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses, translated by G. M.
Goshgarian (London: Verso, 2014). In addition, Althusser and his collaborators focused on the concept of mode of production32Louis Althusser, Etienne Balibar, Roger Establet, Pierre Macherey and Jacques Rancière, Reading Capital (London: Verso, 2015). introduced a model of structural causality in which the economic, political, and ideological levels interacted in a way that precluded direct or linear determination by economics. This thwarted Stalinist orthodoxy to the extent that changes in the ideological superstructure necessarily arose from a revolution at the grassroots. Despite these nuances, the Marxism of the Second International (1889-1916) saw the political and juridical spheres largely determined by the relationship between the means and the relations of production.
