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The General Theory of Law and Marxism |
CHAPTER IV
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Every legal relation is a relationship between subjects. A subject is the atom of legal theory, the simplest and irreducible element. And with it we begin our analysis.
At the same time as idealist theories of law start with some general idea and develop the concept of the subject, i.e. in a purely speculative way, dogmatic jurisprudence uses this concept in a formal manner. For it, the subject is nothing more than “a means for the legal qualification of phenomena from the perspective of their suitability or unsuitability for participation in legal relations”. It therefore does not ask itself why man turned from an animal environment into a legal subject, since it proceeds from the legal relation as an antecedent form.
Marx’s theory, on the contrary, considers every social form as historical, and therefore sets its task as the explanation of those historical, material conditions which make one category or another real. The material premises of legal relationships, or the relationships of legal subjects, are explained by Marx himself in the first volume of Capital. It is true that he did this obliquely, and in the form of the most general allusions. However, these allusions provide much more for the understanding of the legal element in the relationships between people than the multi-volume treatises on the general theory of law. For Marx the analysis of the form of the subject flows directly from the analysis of the form of commodities.
Capitalist society is above all a society of commodity owners. This means that in the process of production the social relationships of people assume an objectified form in the products of labour and are related to each other as values. Commodities are objects whose concrete multiplicity of useful qualities becomes merely a simple physical covering of the abstract quality of value, and which appears as the ability to be exchanged for other commodities in a definite ratio. This quality appears as something inherent in the objects themselves, by force of a type of natural law which acts behind people’s backs entirely independent of their will.
But if a commodity acquires value independently of the will of the subject producing it, then the realization of value in the process of exchange assumes a conscious volitional act on the part of the owner of the commodity. Or, as Marx says, “commodities cannot send themselves to a market and exchange themselves with one another. Accordingly, we must turn to their custodian, to the commodity owner. Commodities are objects and therefore defenceless before man. If they do not go of their own will, he will use force, i.e., appropriate them”. [27]
Thus, in the process of production, the social relationships of people realized in the products of labour and assuming the form of an elemental law, require for their realization a particular relationship of people as managers of products, and subjects “whose will rules objects”.
Therefore, simultaneously with the product of labour assuming the quality of a commodity and becoming the bearer of value, man assumes the quality of a legal subject and becomes the bearer of a legal right. “A person whose will is declared decisive is the subject of a legal right.” [28]
Simultaneously, social life is reduced on the one hand to the totality of elemental objectified relationships in which people appear to us as objects (such are all economic relations: the level of prices, surplus value, profit etc.) and, on the other hand, those relationships which define man only by reference to an object, i.e. as a subject, or in legal relationships. These two basic forms are different in principle, but at the same time are very closely connected and mutually dependent. The social, productive relationship appears simultaneously in two incongruous forms: as the value of a commodity and as the ability of man to be the subject of rights.
In the same way that the natural multiplicity of the useful qualities of a product is in a commodity a simple mask of its value, while the concrete species of human labour are dissolved into abstract human labour as the creator of value so the concrete multiplicity of man’s relationship to an object appears as the abstract will of the owner, while all the concrete peculiarities, which distinguish one representative of the species Homo sapiens from another, are dissolved into the abstraction of man in general as a legal subject.
If economically an object dominates man, since as a commodity it embodies in itself a social relationship not under the authority of man, then man legally dominates the object because as its possessor and owner he himself becomes merely the embodiment of the abstract, the impersonal subject of rights, the pure product of social relationships. Expressing this in the words of Marx, we say:
In order that these objects may relate to one another as commodities, their guardians must relate to one another, as persons whose will resides in those objects; and must behave in such a way that each does not appropriate the commodity of the other, and part with his own, except by means of an act done by mutual consent. They must, therefore, mutually recognize in each other the rights of private proprietors. [29]
Having fallen into servile dependence upon economic relations surreptitiously created in the form of the laws of value, the economic subject – as if in compensation – receives a rare gift in his capacity as a legal subject: a legally presumed will, making him absolutely free and equal among other owners of commodities. “All must be free and no one may violate the freedom of another ... each person possesses his own body as a free instrument of his own will.” [30] This is the axiom from which the theory of natural law proceeds. And this idea of separation, the inherent proximity of human individuality, this “natural condition”, from which “the infinite contradiction of freedom” flows, entirely corresponds to the method of commodity production in which the producers are formally independent of one another and are bound by nothing other then the artificially created legal order, by this very legal condition or, speaking in the words of the same author, “the joint existence of many free beings, where all must be free and the freedom of one must not prevent the freedom of another”. This is nothing other than an ideologized philosophical abstraction transferred to heavenly heights, freed from its crude empiricism; independent producers meet in this market because, as another philosopher teaches us, “in the market transaction both parties do that which they want and do not claim greater freedom than they themselves grant the others”.
The increasing division of labour, the expanding social relationships and the development of exchange deriving therefrom, make exchange-value an economic category, i.e. the embodiment of social production relationships which stand above the individual. For this it is necessary that separate and random acts of exchange turn into a broad systematic circulation of commodities. At this stage of development, value is torn from arbitrary assessment, loses its character as a phenomenon of the individual psyche and assumes an objective economic significance. Similarly, real conditions are necessary for man to be transformed from a zoological being into an abstract and impersonal subject of law, into a juridic person. These real conditions consist in the condensation of social relations and the growing power of social, i.e. class organization, which achieves its maximum intensity in the “well organized” bourgeois state. Here, the ability to be a subject of rights is finally torn from the living concrete personality, ceases to be a function of its active conscious will, and becomes a purely social quality. Legal capacity is abstracted from the ability to have rights. The legal subject receives his alter ego in the form of a representative while he himself assumes the significance of a mathematical point, a centre in which a certain sum of rights is. concentrated.
Accordingly, bourgeois capitalist property ceases to be a weak, unstable and purely factual possession, which at any moment may be disputed and must be defended vi et armis. It turns into an absolute, immovable right which follows the object everywhere that chance carried it and which from the time that bourgeois civilization affirmed its authority over the whole globe, is protected in its every corner by laws, police, courts. [31]
At this stage of development the so-called will theory of subjective rights begins to seem incongruent with reality. It is now preferable to define a right in the subjective sense as “the sum of benefits which the general will recognizes as belonging to a specific person”. Moreover, this latter does not require a person to have the ability to will and to act. Of course, Dernburg’s definition is better suited to that view of the modern jurist. which must deal with the legal capacity and rights of idiots, infants, juridic persons etc. In its extreme conclusions the will theory was equated with the exclusion of these categories from the subjects of rights. Dernburg is certainly nearer the truth in understanding the subject of rights as a purely social phenomenon. But on the other hand it is very clear to us why the element of will played such an essential role in the construction of the concept of the subject. Dernburg himself sees this in part when he affirms that:
rights in the subjective sense existed long before a conscious state order was created; they were based upon the personality of the individual man and upon the respect which he could win and compel with respect to himself and his property. Only gradually, by abstraction from the concept of existing subjective rights, was the concept of the legal order formed. The view that rights, in the subjective sense, are merely the result of objective law is ahistorical and untrue. [32]
“To win and to compel” is obviously possible only for someone who enjoys both the will and also a significant amount of power. On the other hand, Dernburg forgets that the concept of the subject arose and developed from its contrast with an object or thing. A commodity is an object; a man is a subject who disposes of the commodity in acts of acquisition and alienation. It is in the exchange transaction that the subject first appears in the full totality of its definitions. A formally and perfected concept of the subject, which would simply be left with legal capacity, further diverts us from the living real historical sense of this legal category. This is why it is difficult for jurists completely to surrender the active, volitional element in the concepts of the subject and subjective legal right.
The sphere of domination, which has assumed the form of a subjective right, is a social phenomenon which is attributed to the individual on the same basis as which value, also a social phenomenon, is attributed to an object, to a product of labour. Commodity fetishism is complemented by legal fetishism.
Thus, at a certain stage of development, the relationships between people in the process of production assume a doubly perplexing form. On the one hand, they appear as a relation of objects, commodities, and on the other as will relationships of individuals independent and equal to one another – legal subjects. Along with the mystical quality of value something appears no less perplexing – a legal right. Simultaneously a single whole relationship assumes two basic abstract aspects – economic and legal.
In the development of legal categories, the ability to execute exchange transactions is only one of the concrete phenomena of the general quality of the capacity to have legal rights and to conduct transactions. However, it is historically mainly the exchange transaction which furnished the idea of a subject as the abstract bearer of all possible legal claims. Only in the conditions of a commodity economy is the abstract form of a right created, i.e. the capacity to have a right in general is separated from specific legal claims. Only the constant transfer of rights taking place in the market creates the idea of their immobile bearer. The person receiving an obligation in the market undertakes an obligation himself at the same time. The position of a creditor is transferred to that of a debtor. Thus, the possibility is created of abstracting from the concrete differences between these subjects of legal rights, and of putting them under one generic concept. [33]
Similar to the way in which the exchange transactions of developed commodity production were preceded by random exchange acts and such forms of exchange as mutual gifts, the legal subject with the sphere of legal domination expanding around him was morphologically preceded by the armed individual or, more often, group of people, clan, horde, tribe, capable in a dispute or a battle of defending that which was the condition of their existence. This close morphological tie dearly unites the court with the duel, and the parties and the proceedings with the parties in armed struggle. With the growth of social regulatory forces, the subject proportionally loses his material tangibility. His personal energy is replaced by social power, i.e. class power, organization, which finds its highest expression in the state. This impersonal and abstract subject corresponds, as his expression, to the impersonal abstract state authority which acts in ideal equilibrium and continuity in space and time.
But before enjoying the services of the state mechanism, the subject relies upon the organic continuity of relationships. Similar to the way in which the regular repetition of acts of exchange constitutes value, as a general category raised above subjective evaluations and random exchange ratios, likewise a regular repetition of one and the same relationship – custom – gives a new meaning to the subjective sphere of domination, justifying its existence by an external norm.
Custom or tradition, as a higher basis than the individual for legal claims, corresponds to the feudal system with its limitations and stagnation. Tradition or custom is in essence something included in notoriously rather narrow geographic boundaries. Therefore, every right is thought of merely as an attribute of a specific concrete subject or of a group of subjects. In the feudal world, “each right was a privilege” (Marx). Each city, each estate, each guild lived according to its law which followed a man wherever he was. The idea of a formal legal status, common to all citizens, general for all people, was absent in this period. Corresponding to this in the economic field were self-sufficient closed economies, prohibitions of import and export etc.
“The content of individuality was not one and the same. The estate, property position, profession, belief, age, sex and physical strength led to deep inequality in legal capacity.” [34] Equality between subjects was assumed only for closed relationships in a definite narrow sphere; thus, members of one and the same estate were equal to one another in the sphere of estate rights, members of one and the same guild were equal in the sphere of guild rights etc. At this stage the legal subject, as the general abstract bearer of all conceivable claims to rights, appears only in the role of the possessor of specific privileges.
At this stage “legal consciousness sees that the same or equal rights were attributed to individual persons or collectives, but it does not conclude that these persons and collectives were one and the same in their attribute of having rights.” [35]
To the extent that in the Middle Ages the abstract concept of a legal subject was absent, so also the idea of an objective norm, directed to an imprecise and broad circle of persons, was mixed and merged in the establishment of concrete privileges and “liberties”. As late as the thirteenth century we find traces of some clear impressions of the difference between objective law and subjective legal rights or powers. In certificates of privileges and dues, which were given to cities by emperors and princes, the mixture of these two concepts is encountered at each step. The usual form of establishing some general rules or norms was the recognition of a definite territorial unit, or of the population in a collective sense as having specific legal qualities. Such a character was borne by even the famous formula Stadtluft macht frei The abolition of judicial battles was conducted in the same form; along with these decrees, and as something entirely of the same type were included the rights of city dwellers, for instance in the use of the prince’s or emperor’s forest.
The same mixture of objective and subjective elements was at first: observed in municipal law itself Municipal statutes were in part provisions with a general character and in part a list of individual rights or privileges which were enjoyed by some group of citizens.
Only with the full development of bourgeois relationships did law obtain an abstract character. Each man became a man in general, all labour was equated with socially useful labour in general, every subject became an abstract legal subject. Simultaneously, the norm also assumed the logically perfected form of the abstract general law.
Thus, the legal subject is the abstract commodity owner elevated to the heavens. His will – will understood in a legal sense – has its real basis in the wish to alienate in acquisition and to acquire in alienation. For this desire to be realized it is necessary that the desires of commodity owners be directed to one another. Legally, this relationship is expressed as a contract or an agreement of independent wills. Therefore, contract is one of the central concepts of law. In haughty language, it becomes a component part in the idea of law. In the logical system of legal concepts the contract is only one of the forms of transaction in general, i.e. one of the methods of concrete expression of the will with whose aid the subject acts upon the legal sphere around him. Historically and in reality, on the contrary, the concept of transaction grew from contract. Outside contract, the very concepts of subject and will exist only as lifeless abstractions in the legal sense. In contract these concepts obtain their full movement, and simultaneously the legal form, in its simplest purest aspect, receives its material basis in the act of exchange. The act of exchange thus concentrates, in its focus, all the essential elements of political economy and law. In exchange, in Marx’s words, “a volitional or legal relation is produced by economic relationships themselves”. Once it has arisen, the idea of contract strives to assume universal significance. Before possessors of commodities “recognized” each other as owners, they were of course already such but in a different, organic and extra-juridical sense. “Mutual recognition” signifies nothing other than an attempt to interpret, with the help of the abstract formula of contract, those organic forms of appropriation which depend on labour, conquest etc., which a society of commodity producers finds ready at its inception. By itself the relationship of man to an object is deprived of all legal significance. This is felt by jurists when they try to make sense of the institution of private property as a relation between subjects, i.e. between people. But they construe this purely formally and negatively, as a universal prohibition which excludes everyone except the owner from the use and disposition of the object; this conception, while suitable for the practical purposes of dogmatic jurisprudence, is most unsuitable for theoretical analysis. In its abstract prohibitions the concept of property loses all actual meaning, and renounces its own pre-legal history.
But if the organic, “natural” relation of a man to an object, i.e. its appropriation, genetically constitutes the starting point of development, then the transformation of this relationship into a legal one took place under the influence of those requirements which were invoked by the circulation of boons, i.e. primarily purchases and sales. Hauriou calls attention to the fact that even maritime exchange and caravan exchange did not initially create a requirement for the guarantee of property. The distance which separated those engaging in exchange gave a better guarantee against any claims whatsoever. The formation of a stable market invoked the necessity of regulating the question of the right to dispose of commodities, and accordingly, of the right of ownership. [36] The title of ownership in ancient Roman law, mancipatio per aes et libram, shows that it was born simultaneously with the phenomenon of internal exchange. Likewise, transfer by inheritance began to be fixed as a title of ownership only from the times when civil transactions showed an interest in this transmission. [37]
In exchange, speaking in Marx’s words, “one commodity possessor only by the will of another ... may acquire for himself another’s commodities, alienating them as his own”, It is precisely this thought which representatives of the natural law school also strive to express, trying to base property on some initial contract. They were right, of course, not in the sense that such a 1contract ever occurred historically, but in that natural or organic forms of appropriation obtain a legal character and begin to display their legal “intelligence” in mutual acts of appropriation and alienation. Here it is necessary to look for explanations of the contradiction between feudal and bourgeois property. The greatest shortcoming of feudal property in the eyes of the bourgeois world, lies not in its origin (conquest, force) but in its immobility, in the fact that it is incapable of becoming an object of mutual guarantees, moving from one hand to another in acts of alienation and appropriation. Feudal or estate property violates the basic principle of bourgeois society – “the equal possibility of obtaining inequality”. Hauriou, one of the keenest bourgeois jurists, correctly emphasizes mutuality as the most effective guarantee of property, and thus achievable with the least amount of external compulsion. Thus mutuality, insured by the laws of the market, assumes its own nature as an “eternal” institution. In contrast to this, a purely political guarantee, given by the apparatus of state compulsion, is simply for the defence of the specific proprietary group, i.e. it is an element which has no principled significance. Class struggle frequently led in history to a new distribution of property, to the expropriation of money lenders and owners of latifundia. But these upheavals, however unpleasant they were for the classes and groups that suffered, did not disturb the basic foundations of private property – the economic fact of economic transactions by exchange. Those people who rose up against property, on the next day had to affirm it, meeting in the market place as independent producers. This is the path of all non-proletarian revolutions. Such is the logical conclusion from the ideal of anarchists who, discarding the external signs of bourgeois law – state compulsion and statutes – maintain its internal essence: free contract between independent producers. [38]
Thus, only the development of the market initially makes possible and necessary the transformation of man, who appropriates objects by means of labour (or theft), into a legal owner.
Karner offers another conception of property. According to his definition:
de jure property is nothing other than that the power of person A over object N, the simple relation of the individual to an object of nature, which involves no other individual (our italics – E.P.) and no other object; an object is a private object, the individual a private person; the right a private right. This is the way the matter is in fact in the period of simple commodity production. [39]
This whole citation is one broad misunderstanding. Karner reproduces here his favourite Robinson Crusoe world. But how meaningfully can the two Robinson Crusoes, neither of whom knows of the existence of the other, imagine legally their relationship to objects when that relationship is fully exhausted by the factual relation? This right of an isolated man deserves to be placed next to the famous value “of a glass of water in the desert”. Both exchange-value and the law of property are generated by one and the same phenomenon: the circulation of products which have become commodities. Property in the legal sense appeared not because people decided to assign this legal quality, but because they could exchange commodities only having donned the personality of an owner. “Unlimited authority over a thing” is merely a reflection of the unlimited circulation of commodities.
Karner states “an owner decides to cultivate a legal relationship of property by way of alienation”. [40] Does Karner not think that “the legal” begins from this “cultivation”, and until its acquisition does not go beyond the bounds of the natural or organic?
Karner agrees that “purchase, sale, loan and rental existed earlier but with a minimal objective and subjective sphere of action”. Yet these legal forms of the circulation of economic boons existed so much earlier that we find a clear formulation of the relationships of rental, loan and deposit before the very formula of property was developed. This alone already provides the key to the proper understanding of the legal nature of property.
On the contrary, it seems to Karner that people were independent owners before they pledged, bought and sold objects. These relationships seem to him merely “auxiliary and secondary institutions filling the gaps of petit bourgeois property”. In other words, he proceeds from the idea of entirely isolated individuals who (it is unclear for what purpose) decided to create a “general will”, and in the name of this general will to order each one to refrain from infringements upon an object belonging to another. Then considering that the owner could not be treated as a universalist, either in terms of his labour power or as a consumer, these isolated Robinson Crusoes decide to supplement ownership with the institutions of purchase and sale, loans, rental etc. This artificial scheme puts the true development of objects and concepts on its head.
The bond between a man and an object which he produced or won himself, or which figuratively (as arms, or decoration) constitutes part of his personality, undoubtedly emerges historically as one of the elements in the development of the institution of private property. It represents its initial crude and limited form. Private property obtains its perfected and universal character only with the transformation to a commodity or, rather, to a commodity-capitalist economy. It becomes indifferent to the object and severs all connection with any organic union of people (kinship-group, family, commune). It appears in the most general meaning as “an external sphere of freedom” (Hegel), i.e. as the practical realization of the abstract ability to be the subject of rights.
In this purely legal form, property has logically little in common with the organic or everyday principle of private appropriation, either as a result of personal efforts or as a condition of personal consumption and use. To the extent that the bond between man and the product of his labour, or, for instance, between man and a parcel of land which he has cultivated with his personal labour, is in itself something elementary, accessible to the most primitive thinking [41]; to that extent the relationship of the owner to property is abstract, formal, artificial and rational from the time when all economic reality began to be reduced to the sphere of the market. If, morphologically, these two institutions – private appropriation, as the condition of unimpeded personal use, and private appropriation as the condition of subsequent alienation and acts of exchange – have a direct connection with one another, nevertheless logically these are two separate categories, and the word property which covers them both introduces more confusion than clarity. Capitalist ownership of land does not assume any organic connection between the land and its owner; on the contrary, it is possible only on the condition of full freedom of transfer of land from hand to hand, and freedom of transactions with land.
Capitalist property is essentially the freedom to transform capital from one form to another, and to move it from one sphere to another to receive the maximum unearned income. This freedom to dispose capitalist property is impossible with the presence of individuals deprived of property, i.e. of proletarians. The legal form of property does not contradict the fact of expropriation of property from a significant number of citizens. For the quality of being a subject of rights is a purely formal quality. It qualifies all persons as equally worthy of property, but by no means makes them property owners. The dialectic of capitalist property is marvellously depicted in Marx’s Capital, both where it penetrates the “immobile” forms of law, and where it disrupts them by direct coercion (the period of primitive accumulation). In this sense Karner’s study provides very little new in comparison with the first volume of Capital. When Karner tries to be independent he introduces confusion. We already noted this with respect to his attempts to abstract property from the element which legally constitutes it, i.e. from exchange. This purely formal concept entails another mistake. Having considered the transfer from petit bourgeois property to capitalist property, Karner states: “The institution of property achieved broad development, experienced full transformation, without having changed its legal nature”, and in the same place he concludes “the social function of legal institutions changes but their legal nature does not change”. [42] It may be asked: what institution does Karner have in mind? If he is discussing the abstract formula of Roman law then of course nothing in it can change. But this formula regulated small-scale ownership only in the period of the development of bourgeois-capitalist relationships. If we turn to guild crafts or to peasant economy in the age of the attachment of peasants to land, then we find a whole series of norms limiting the right to property. Of course it may be objected that all these limitations have a public law character and do not affect the institution of property as such. But even in this instance the whole situation is that a certain abstract formula is equivalent to itself On the other hand the feudal guilds, i.e. organic forms of property, had already revealed their functions the extraction of another’s unpaid labour. [43] We can therefore come to a conclusion opposite to Karner, that “norms change and their social function remains unchanged”.
In proportion to the development of the capitalist mode of production the owner is gradually freed from technical production functions, but at the same time he loses the totality of legal domination over capital. In a stock corporation the individual capitalist is merely the bearer of title to a certain share of the unearned income. His economic and legal activity, as owner, is limited exclusively to the sphere of non-productive consumption. The basic mass of capital becomes a fully impersonal class force. To the extent that they participate in market circulation, which supposes the autonomy of its separate parts, these parts appear as the property of legal persons. In fact the comparatively small circle of the largest capitalists can dispose of it acting through their hired representatives or agents. The legally distinct form of private property does not now reflect the actual position of objects, for with the assistance of methods of participation and control actual domination goes far beyond purely legal bounds. Here we come to the moment when capitalist society is already sufficiently mature to transform into its antithesis. The necessary political prerequisite for this is the class revolution of the proletariat.
However, as experience has shown, planned and organized production and distribution may not replace market circulation, and the market bond between individual economies on the day after the revolution. If this were possible, then the legal form of property would at that moment be historically finally exhausted. It would have completed the cycle of its development having returned to the starting point, to objects of direct individual use, i.e. have become again an elementary living relationship. And with it the form of law in general would be condemned to death. [44] Until the task of the construction of a single planned economy is realized, so long as the market bond between individual enterprises and groups of enterprises remains, the form of law will also remain in force this long. We are not now speaking of the fact that the form of private property remains almost unchanged in the transitional period in the context of the means and instruments of production of the small-scale peasantry and crafts economy. But in the relationships of large nationalized industry, the application of the principle of economic accountability signifies the formation of autonomous units whose connection with other economies is established through the market.
To the extent that state enterprises are subordinated to the conditions of circulation, so the bond between them is shaped not in the form of technical subordination, but in the form of exchange. Thus, a purely legal, i.e. judicial procedure, for regulating relationships becomes possible and necessary; however, along with this there has been preserved, and with the passage of time undoubtedly will be strengthened, direct, i.e. administrative-technical management by the procedure of subordination to the general economic plan. Thus, on the one hand we have economic life flowing into natural categories, and the social bonds between production units represented in its rational, unmasked (non-commodity) form – to this corresponds the method of direct, i.e. technical-content instructions in the form of programmes, production and distribution plans etc., specific instructions constantly changing depending upon the change in conditions. On the other hand, we have the bond between economic units expressed in the form of the value of circulating commodities, and therefore in the legal form of exchange. To this, in its turn, corresponds the creation of more or less firm and constant formal boundaries and the rules of the legal relationships between autonomous subjects (civil and possibly also commercial codes), and of agencies implementing this commerce in practice by means of decisions of disputes (courts, arbitration commissions etc.). It is obvious that the first tendency does not include any possibility for the legal art to flourish. Its gradual victory will mean the gradual withering away of the legal form in general. It is possible, of course, to object that the production programme, for example, is also a public legal norm since it proceeds from state authority, enjoys coercive force, creates rights and duties etc. Of course, until the time when the new society will be built from the elements of the old, i.e. by people who understand social relationships only as “a means for their private purposes”, even the simple technically rational instructions will adopt the form of a power alienated from man and standing above him. Political man will still be, expressed in Marx’s words, “an abstract artificial man”. But the more radically the former relationships, and the earlier psychology in this sphere of production, are outgrown, the faster the hour of that final emancipation will strike, which Marx discusses in his article On the Jewish Question.
Only when the real individual man will perceive in himself the abstract citizen, and as individual man shall become a universal being in his empirical life, in his individual work, in his individual relations, then when man recognizes and organizes his forces propres (personal efforts) as social forces, and therefore, when he no longer separates social forces in the form of political force from himself, only then will human emancipation be completed. [45]
Such are the perspectives of the unbounded future. With respect to our transitional period, the following should be noted. If, in the age of domination of impersonal finance capital, the real opposition of the interests of individual capitalist groups (disposing of their own and other’s capital) continue to be preserved, nevertheless proletarian state capitalism eliminates the real opposition of interests with nationalized industry and preserves the separation of autonomy of individual economic organizations (similar to private business) only as a method. Thus, those quasi-private economic relationships which are formed between state and industry and the small labour economy, and also between individual enterprises and combinations of enterprises within state industry itself, are placed in strict bounds, which at any specific moment are defined by the successes achieved in the sphere of planned construction. Therefore during our transitional period the form of law as such does not conceal those unlimited possibilities which were opened up for it by bourgeois capitalist society at the dawn of its birth. On the contrary, it temporarily binds us to its narrow horizons. It exists only so as finally to exhaust itself.
The task of Marxist theory consists in verifying this general conclusion, and researching it in concrete historical material. Development may not proceed equally in various areas of social life. Therefore, painstaking work of observation, comparison and analysis is necessary. But only then, when we study the tempo and forms of outmoded value relationships in economics and, together with it, the withering away of private law elements and the legal superstructure, and finally the gradual expulsion of the legal superstructure itself, only then can we say to ourselves that we have explained at least one aspect of the process of creating the classless culture of the future.
27. K. Marx, Capital (1867), op. cit., vol.1, p.84.
28. Man is a commodity (i.e. a slave) only when he adopts the role of a distributor of commodities – of objects-and when in becoming a fellow participant in exchange he attains the effective status of a subject. On the rights of slaves to conduct transactions under Roman law, see I.A. Pokrovsky, History of Roman Law (1915), Petrograd, vol.2, p.294. Conversely, when a free man (i.e. a proletarian) seeks a market for the sale of his labour power in modern society, he is treated as an object and falls under the law on emigration with the same prohibitions, quotas etc., as other commodities transported across the state border.
29. K. Marx, Capital (1867), op. cit., vol.1, p.84.
30. J. Fichte, Rechtslehre (1812), Leipzig, p.10.
31. The development of the law of war is nothing other than the gradual consolidation of the principle of the inviolability of bourgeois property. Until the era of the French Revolution the population was robbed without hindrance or restriction, both by its own soldiers and by the enemy. Benjamin Franklin first proclaimed (1785) as a political principle that in future wars “peasants, craftsmen and merchants must peacefully continue their occupations under the protection of both warring parties”. Rousseau, in his Social Contract, asserts the rule that war is conducted between states but not between people. The legislation of Covenant strictly punished thefts by, soldiers both in their own and in an enemy’s country. Only at the Hague, in 1899, were the principles of the French Revolution elevated to the rank of international law. Moreover, justice requires that it be noted that Napoleon, in declaring a continental blockade, felt a certain embarrassment and considered it necessary, in his address to the Senate, to justify this measure “affecting the interests of private people because of a dispute between states” and “recalling the barbarity of olden times”; in the last world war the bourgeois states, without any embarrassment, violated the property rights of the citizens of the warring countries.
32. H. Dernburg, Pandekten (1906), Moscow, vol.1, p.39.
33. In Germany this occurred only when Roman law was received, which is proved, inter alia, by the absence of a German word for the expression of the concepts of “person” (persona) and “subject of rights”. See O. Gierke, Geschichte des deutschen Korperschaftsbegriffs (1873), Berlin, p.30.
34. ibid., p.35.
35. ibid., p.34.
36. A. Hauriou, Principes du droit public (1910), Paris, p.286.
37. ibid., p.287.
38. For example, Proudhon declares: “I want a contract and no laws. For me to be free we must reconstruct the whole social order on the basis of mutual contract.” However, he adds later: “The norms by which the contract must be fulfilled will not depend exclusively on justice, but also on the common will of people who participate in life together, a will which must compel the fulfilment of the contract even with coercion.” See P.J. Proudhon, Idée générale de la révolution (1851), Paris, X, pp.138, 293.
39. K. Renner, The Institutions of Private Law and their Social Functions (1949), Routledge and Kegan Paul, London, pp.266-267.
40. ibid., p.268.
41. The defenders of private property therefore eagerly appeal to this elementary relationship because they know that its ideological power exceeds many times its economic significance for modern society.
42. K. Renner (1949), op. cit., p.252.
43. Property under simple commodity production, which Karner contrasts with the capitalist form of property, is just as pure an abstraction as simple commodity production itself The transformation of even part of the products into commodities, and the appearance of money, constitute a sufficient condition for the appearance of usurer’s capital-in Marx’s expression, that “antediluvian form of capital”which, together with its twin (mercantile capital), “long precedes the capitalist mode of production and can be observed in various socio-economic formations”. See K. Marx, Capital (1967), op. cit., vol.3.
44. The intensification of the transcendence of the legal form would be reduced to the gradual transition from the equivalent method of distribution – definite quantities of products for definite quantities of labour – to the realization of the formula of developed communism: “from each according to his abilities, to each according to his needs”.
45. K. Marx, On the Jewish Question (1843), in Karl Marx: Early Writings (1975), introduced by L. Colletti, Penguin and New Left Review, p.234.
Last updated on 10.5.2004