Law in the Socialist Society

The Demise Of Law In The Socialist Society

Introduction

This paper elucidates and supports the Marxian claim that law will ‘wither away’ in the socialist society, a thesis developed by Marx and Engels. Marxist theories of law involve a materialist view of social life in which law and the state (the superstructure) are subordinate to the dominant modes of production throughout human history. In capitalism where the law values private property, the state becomes the “executive body of the bourgeoisie,” which uses the law to uphold their private interests. As Marx believes the social relations of production under this superstructure are exploitative and inherently instable, human society will progress to socialism and eventually communism, where the ruling class is the proletariat, and where legal institutions that protect private property and private interests have no place in society.

To develop this essay, I start by discussing the Marxist view of the state and the law as an instrument of the ruling class, which is based on protecting the private interests of the bourgeoisie. I then examine how this view of the state and the law in a socialist society is inherently incompatible. These concepts are further supported by Marx’s “Debate on Wood-Theft Laws.” Several criticisms will also be addressed to point out the empirical shortcomings of the Marxist approach. In doing so, I argue that because Marxist theories of the law in a socialist society yield insights into the complex social relationships through which human beings produce and reproduce their social relations, conceptually, they convincingly explain why the law should wither away in a socialist society. However, while the Marxist approach may be conceptually compelling, legal institutions must still have a place in a socialist society and therefore do not completely wither away.

An Instrumentalist View Of Law And The Demise Of Law Under Socialism

Socialism is defined as a social organization whereby the means of production, distribution, and exchange is primarily owned or regulated collectively by the community as a whole. Though there are several variants within the Marxist paradigm, there is a general consensus that jurisprudence ceases to exist in a socialist society. Socialism aims to entail an equal distribution of wealth to the community by removing private property ownership and the exploitative ruling class. This view is derived from Marx’s evolutionary theory of human history, which marks its end with communism; a classless society in which the state would be nothing more than the revolutionary dictatorship of the working class. As man evolves throughout history, laws evolve with it, and thus there are no legal absolutes, no eternal lawgiver, and no eternal legal principles.

A good starting point to analyze the Marxist approach to law is to examine the instrumentalist view of the law under capitalism. For Marxists, the law as we know it today can be traced to the concept of private property, which distinguishes society between the owners (bourgeoisie) and the non-owners (proletariat). The former is essentially the capitalist ruling class that owns the means of production, and latter is the working class that must sell their labor to the capitalists for subsistence.

For Marx, the state is the none other than an ‘executive committee’ of the bourgeoisie, the laws become the instrument by which one class rules another for their private interests. As legal regulations are deliberated through the state, the law is essentially devised by the propertied class to protect its property. Marxists refer to this as bourgeois law, which are all considered unjust because it “stifles the proletariat’s evolutionary destiny.” As Marx notes, “the will of your (bourgeoisie) jurisprudence is but the will of your class made into law for all.”

From this, we may ascertain that seemingly eternal legal principles that represent the collective will is in actuality no more than a reinforcement of the right of the bourgeois to own property. This secures class interests because the bourgeoisie sets the terms for what is permitted, and necessarily constrains the proletariat who owns no property and thus remains a source of labor to be exploited. Such a legal system is necessarily unjust for the proletariat who has neither the autonomy over the bourgeoisie who they depend on for wages.

As Christine Sypnowich explains, autonomy from the state and other individuals is a condition to bargain in the market as well as in the court. The bourgeoisie is the only group that has this autonomy to assert their private interests freely without interference from any public authority. Thus in a capitalist society, legal principles assume there is no interest greater than that of the private individual. This legal system aims to protect private property, whereas socialism aims to protect social property. As such, bourgeois law is unjust and it is therefore only proper to violate it on behalf of socialism.

Additionally, Marxists have generally be unable to establish any form of a jurisprudence because they regard the law as an ‘ideological instrument’ which is employed to maintain social relations, which in turn are based on control of the means of production. However, many Marxists believe that this ideological function of law is an illusion to cover the truth behind the law, which distorts legal practice and existing social relations. The law is portrayed as above society and the autonomy of law is separate from the political economy, however, it really protects the ruling class capitalist interests. Other Marxists streams suggest that the law resolves class conflict such that all parties appear to have their say. The law becomes a façade of a set of rules to provide equality, freedom, and fairness which instead covers inequality, unfairness, and alienation within capitalist economic relations.

Evgeny Pashukanis, a Soviet jurist purged by Stalin in 1937, identified that the law supports the commodity exchange theory, in which “something comes to be commodified, as its rules of exchange come to be defined.” Thus, what Max Weber would have called the ‘rationalization’ of the law, Pashukanis treated as the legitimation of the most fundamental capitalist relationship (reword). Marxist theories of law and state are the basis of why in socialism laws will wither away and thus it is a necessary component to understand the laws fate in a socialist society.

In socialism, there is no room for the egotistical, self directed interests of the capitalist man to use law for his private interests. Socialism for Marx emancipates man from the public and private spheres and precipitates the demise of the laws that maintained them. Private interests, Marxists claim, become the interest of the community. Once the real individual man no longer has private interests, political authority and legal right will cease to be necessary, and eventually die out under socialism.

There are key reasons why Marxists reject the possibility of law under socialism. Firstly, Marxists assume that under socialism, there will be material abundance and therefore it would be logically inconsistent to regulate scarce resources. Resources would be available to everyone in society. For theorists such as Pashukanis, the whole point of the law is to “market society,” and without a market in socialism, laws are simply inconceivable. He writes that “if law has its real origins in commodity exchange, and if socialism is seen as abolition of commodity exchange and the construction of production for use, then proletarian or socialist law was a conceptual and practical absurdity.”

The second reason is that due to such material abundance, there would be no interpersonal conflict, and thus no need for the law to mediate them through legal institutions. The law in capitalism was employed to maintain existing social relations and thus perform an ideological function. Law and state become the dominant part in society and ideology falsifies and deludes reality and at the same time reflects and regulates it. Additionally, law furthers the interests of the ruling dominate class in maintaining capitalist systems of production. However, in socialism all class division is eliminated. According to Marxists, the proletariats employ ideology as a way to abolish class division in society, but subsequently they serve no purpose, in that “every class which is struggling for mastery, even when its domination, as is the case with the proletariat, postulates the abolition of the old form of society […and of] domination of itself, must first conquer […] political power in order to represent its interests in turn as the general interests…” (check this para)

The economic relations of production ultimately define the relationship between law and society. When human activities require legal regulation, it is essentially the manifestation of class antagonisms. Without class divisions or private property, there are no disputes and therefore no need for the law to exist. As Engels illustrates “state interference in social relations becomes, in one domain after another, superfluous, and then dies out of itself; the government of persons is replaced by the administration of things, and by the conduct of process of production. The state is not ‘abolished’. It dies out.”

Marxists prediction that law would wither away stems from their view that the functions that were preformed by legal systems would become redundant. Class division between owners of the means of production and the suppressed class would disappear and everyone would have an equal part in the relations of production. The state and legal systems would eventually become obsolete and unnecessary. According to Collins institutions and this superstructure “would wither away in [socialism then leading to communism], just as organs of living creatures disappears during the evolutionary process if they no longer serve a useful function”

Lenin explained in his book the state and revolution that Engels explanation of withering away did not mean the bourgeois state would wither away but that it would be abandoned by the proletariat during the revolution.(Collins pg 105). Thus, in socialism………..

The Wood Theft Laws

To demonstrate the Marxist approach outlined above, we may turn to Marx’s early writings on the “Debates on the Law of Thefts of Wood” (debates on the wood-theft law) in which he observed the clear socio-economic issues that underpinned law during the transition from feudalism to the emergence of capitalism. Marx examined productive relations, and underlined the legal and political superstructures that authorizes and protects such relations. The feudal customary right to gather woods was effectively being privatized by land owners who wanted an income from the forest land and the wood. Communal property had become private property, due to law facilitating capitalism. The abolishment of customary rights allowed for property rights to be protected, which was appealing to the state and its bureaucrats. Marx criticized this issue as absurd and unjust and he objects not the law but the form of law. Marx believed that in order resolve such issues, we must ‘reclaim for poverty the right of custom which is not a local one but which is that of poverty in all lands’. Early Marx writings did not believe in abandoning laws or state but altering their form. Thus, we must restore the old common feudal right with the new private property rights.

In communism however, each person works according to his ability and according to his own needs. Thus in the transitional stage under socialism, the rights of the citizen essentially entitle them to gather wood where they please according to their ability and needs for the land is not the private property of the individual, but rather the property of the community. This example is quite telling, for it clearly shows how the legal system is instrumental for the propertied ruling bourgeoisie and inherently restricts the proletariat.

Opposing Argument

There are also several criticisms of the Marxian argument for the withering away of the law. Firstly, even in a socialist society, legal institutions may still exist. Resolving the issue of who owns the means of production may not necessarily mean that man won’t exploit his natural environment which may jeopardize the supply of resources for future generations. The issue of material abundance has yet to be proved in socialism. Even if there no longer was scarcity of resources in a socialist society, it cannot be assumed the conflict whether in terms of division of class in society or otherwise would disappear. There could still be disagreements as to how resources should be distributed and utilized even in a egalitarian society. Laws would still be required to mediate conflict.

Furthermore, where class conflicts may not exist, other criminal issues such as theft, rape or assault will still require laws for punishment, such as criminal laws to punish the wrong doers. Legal institutions of some form may still be an important feature in a socialist society or communist utopia in order to maintain and mediate social relations. Many laws go beyond private class interest present in a capitalist society such the enforcement of moral standards in a given society with issues relating to abortion or homosexuality. Rules about morality may still be present in a socialist society and may not necessarily wither away but may be altered in some form. According to Collins, classic Marxists theorists devoted very little attention to law and merely focused on it as the apparatus of the state, and so they concluded that “when the bourgeois state was thrown overbroad the law would go too”.

Critics argue that the problem with Marxist view of law is their limited interest to the role of law in reinforcing capitalist exploitation. The Marxists have been unable to make any further contributions to legal theory. They do not consider the role of law might play in a post-capitalist society and a socialist jurisprudence is virtually non-existent. Socialism may not necessarily be the next step and that left wing Marxists fail to say how an ideal socialist society will be governed.

Conclusion

. On the one hand, law’s mystifying role and its connection with capitalist relations of class domination render law theoretically inconceivable under socialism. On the other hand, the ideology view reveals positive aspects of law, suggesting that legal institutions could, like capitalist technology, have a role to play in post-capitalist society. In the face of the unconvincing assumption that a socialist community would be free of the conditions of scarcity and conflict which underlie law, there may yet be room for a socialist jurisprudence which repudiates the withering away thesis.

The problem with Marxist view of law is their limited interest to the role of law in reinforcing capitalist exploitation. The Marxists have been unable to make any further contributions to legal theory. They do not consider the role of law might play in a post-capitalist society and a socialist jurisprudence is virtually non-existent. Socialism may not necessarily be the next step and that left wing Marxists fail to say how an ideal socialist society will be governed.

Conclusion

Earlier we talked about the reasons for why the laws should wither away under socialism. But neither of these assumptions seems plausible. First of all, Marxists have become increasingly aware that the question of who owns the means of production does not automatically settle the question of whether man’s exploitation of his natural environment will jeopardise the supply of resources for present and future generations.41 In any case, that socialism could result in a great abundance of goods remains to be proved.

Furthermore, even if the elimination of scarcity were possible, it is not at all clear that conflict would thereby disappear. Marx assumed that all conflict is based on the division of society into classes, into those who labour, and those who accumulate. But it is possible that members of a socialist society could still disagree about how resources are to be mobilised and distributed, even in a context of consensus about their society’s egalitarian premises. It thus seems conceivable that conflict would outlive capitalism, and that law would continue to be necessary to mediate conflict.

Thus inconclusive as to the validity of the thesis of the withering away of law. On the one hand, law’s mystifying role and its connection with capitalist relations of class domination render law theoretically inconceivable under socialism. On the other hand, the ideology view reveals positive aspects of law, suggesting that legal institutions could, like capitalist technology, have a role to play in post-capitalist society. In the face of the unconvincing assumption that a socialist community would be free of the conditions of scarcity and conflict which underlie law, there may yet be room for a socialist jurisprudence which repudiates the withering away thesis.

legal institutions of some form may still exist. Suppose that law does not ‘wither away in a socialist or Communist utopia. Instead legal institutions of some sort remained to mediate social relations in the absence of either bourgeois egoism or class conflict.

Earlier we talked about the reasons for why the laws should wither away under socialism. But neither of these assumptions seems plausible. First of all, Marxists have become increasingly aware that the question of who owns the means of production does not automatically settle the question of whether man’s exploitation of his natural environment will jeopardise the supply of resources for present and future generations.41 In any case, that socialism could result in a great abundance of goods remains to be proved.

Furthermore, even if the elimination of scarcity were possible, it is not at all clear that conflict would thereby disappear. Marx assumed that all conflict is based on the division of society into classes, into those who labour, and those who accumulate. But it is possible that members of a socialist society could still disagree about how resources are to be mobilised and distributed, even in a context of consensus about their society’s egalitarian premises. It thus seems conceivable that conflict would outlive capitalism, and that law would continue to be necessary to mediate conflict.

Thus inconclusive as to the validity of the thesis of the withering away of law. On the one hand, law’s mystifying role and its connection with capitalist relations of class domination render law theoretically inconceivable under socialism. On the other hand, the ideology view reveals positive aspects of law, suggesting that legal institutions could, like capitalist technology, have a role to play in post-capitalist society. In the face of the unconvincing assumption that a socialist community would be free of the conditions of scarcity and conflict which underlie law, there may yet be room for a socialist jurisprudence which repudiates the withering away thesis.

Marx law, The problem with Marxist view of law is their limited interest to the role of law in recinforcing capitalist exploitation. The Marxists have been unable to make any further contributions to legal theory. They do not consider the role of law might play in a post-capitalist society and a socialist jurisprudence is virtually non-existent. Socialism may not necessarily be the next step and that left wing Marxists fail to say how an ideal socialist society will be governed.

legal institutions of some form may still exist. Suppose that law does not ‘wither away in a socialist or Communist utopia. Instead legal institutions of some sort remained to mediate social relations in the absence of either bourgeois egoism or class conflict.

— ADD: it may be absurd to believe that any society can function without law. There will always be problems and issues such as thefts, sexual assaults, etc and criminal laws will be needed. In addition, any industrial society will require rules and regulations governing the organization of the mode ofproduction.

If law is viewed as a means of organizing productive relationships in the intersets of the dominant class, then it could be instrumental for the dictatorship of the proletariat in the transition to socialism.

-, -many laws in society go beyond class rule, as for example, the case of enforcement of moral standards such as abortion, homosexuality, rape. It is hard to see that these types of situations are a stem of the instrumental pursuit of their interests by the ruling class. Thus, such rules about morality may not necessarily wither awy entirely after revolution but may be altered (pg 107 collins). According to Collins, classic Marxists theorists devoted very little attention to law and merely focused on it as the apparatus of the state, and so they concluded that when the bourgeois state was thrown overbroad the law would go too”. (pg 107 collins).

Conclusion

The theory of law expounded here explains the relationship between law and society in terms which define each side of the relationship as shaped, in a fundamental sense, by the economic relations of capitalism. The human activities which require legal regulation are essentially the manifestation of a certain configuration of economic relationships; there is no sense in which law punishes or controls anti-social behaviour which does not ultimately stem from the ethos of the market. But not only is the society which requires law intrinsically capitalist, so too is the legal form itself. In Marx’s discussion of rights and Pashukanis’s Commodity Theory, the very form of law, not just the content of particular statutes, is considered the reflection of bourgeois economic relations. Because the egoism of man is derived from the capitalist market, and because this egoism is the foundation of law, the question of the withering away of law cannot be merely a matter of predicting that, given transformed economic circumstances, legal regulation will be unlikely. Rather, the withering away of law must refer to a situation where these new circumstances are such as to deny a conceptual basis for any legal structure, whatever its content.