Legal Marxism

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. Submit your article and let yourself be read by the largest community of critical lawyers with over 4000 subscribers. 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.

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. 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. In the capitalist mode of production, the political and juridical superstructure was necessarily seen as a reflection and reproduction of the conditions of commodity production and the private appropriation of surplus value—that is, that the means of production were held as private property and that labor power was nominally “free” to be contractually exchanged for wages. Eminent theorists such as Engels, Kautsky,21Karl Kautsky, The Class Struggle (New York: W. W. Norton, 1971 [1892]); Karl Kautsky, “Parliamentarism and Democracy” [1893], in Ben Lewis (ed.), Karl Kautsky on Democracy and Republicanism (Leiden: Brill, 2020). Eduard Bernstein,22Eduard Bernstein, Evolutionary Socialism (New York: Schocken, 1961 [1909]).

and Rosa Luxemburg23Rosa Luxemburg, “Reform or Revolution” [1900], in Helen Scott (ed.), The Essential Rosa Luxemburg (Chicago: Haymarket, 2008). all saw in the bourgeois constitutional republic the political form which expressed this advanced stage of industrial capitalism and (with the exception of Bernstein) its inevitable tendency towards crisis. 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” (November 18, 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. The metaphor of the basic superstructure has some textual justification in Marx`s writings. It appears most schematically in the preface to the 1859 contribution to the Critique of Political Economy, where Marx wrote that the “juridical and political superstructure” derives from the “sum total” of the relations of production which “form the economic structure of society”16Karl Marx, “Preface to a Contribution to the Critique of Political Economy” [1859], in Robert C.

Tucker (ed.), The Marx-Engels Reader (New York: W. W. Norton, 1978). – a framework that he will later repeat directly in Capital. Similarly, Marx and Engels declared in the Unpublished German Ideology that “the social organization which develops directly from production and commerce” is at all times the “basis of the state and of the rest of the idealist superstructure”.17Karl Marx, “Die deutsche Ideologie” [1846], in Robert C. Tucker (ed.), The Marx-Engels Reader (New York: W. W. Norton, 1978), 163. 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.