Marxist ideology posits a base and superstructure as the component parts of any state. It considers the economic structure of the society to be the base, and from that the contingent superstructure is formed. Jurisprudence may be defined as the science, theory or philosophy of law, and Marxism poses a view of law which therefore may be considered jurisprudential. Chapter three of Leon Trotsky’s book, Revolution betrayed, is entitled “Socialism and the state” and in it he quotes Lenin’s statement that “Law can never be higher than the economic structure and the cultural development of society conditioned by that structure.” The Marxist view of law is that, along with religion, art, and politics, it forms the superstructure which necessarily reflects the economic structure or base. Law is defined as the system of rules recognized by a state as existing to enforce the adherence to an established order. Researcher Mike Head quotes Feuerbach: “as the state and public law are determined by economic relations, so, too, is private law, which indeed in essence only sanctions the existing economic relations between individuals which are normal in the given circumstances” (1998). This further statement by Feyerabend,
“Knowledge is not a series of self-consistent theories that converges
toward an ideal view; it is rather an ever increasing ocean of mutually incompatible (and perhaps even incommensurable) alternatives, each
single theory, each fairy tale, each myth that is part of the collection
forcing the others into greater articulation and all of them contributing,
via this process of competition, to the development of our consciousness”
reflects the evolution of knowledge as a way of viewing the law. The idea of law as superstructure, as expressed by Althusser, makes it possible to identify the economic base of a particular region by its laws. Therefore, laws are a way of knowing.
The established order according to the view of a Marxist would consist in the economic situation of a particular region, and this is as a result of the social structure of the society. Therefore, a society with an oppressive class system will most likely manifest itself economically as a capitalist society. On the other hand, a society of workers all at the same level (an ideal society, according to Marxism) will be reflected in a communist society.
It is to be seen that contradictions attend the conversion from the laws of the former to the latter, contradictions that belie the ability of communism to provide what it promises. But this situation was foretold by Paul Feyerabend in his work Science in a free society where he asserts, “a person trying to solve a problem whether in science or elsewhere must be given complete freedom and cannot be restricted by any demands, norms, however plausible they may seem to the logician or the philosopher who has thought them out in the privacy of his study” (qtd. in Preston, 2005). Communist dogma has proven inadequate to describe its path, and at every stage the law of the state reflects a transitional type of government that straddles two economic bases that are considered to be in diametric opposition. The evolution of the law derives from this attempt of the leaders at understanding the operations of the socio-economic structure for which they strive; and knowledge, according to Feyerabend, is “not a series of self-consistent theories” (1975). The law must therefore be given complete freedom to act in the situations created by the changing government.
The definition of state as given by Vladimir Lenin in his work “The State” is that of a mechanism in a given society that holds one class in subjugation to another (cited in Trotsky, 1937). In order that this be done, law must come into existence, and with it a body of bureaucrats as its representatives to ensure its enforcement. Before society was divided into classes, there was no need of the state. Its “freedom” to exist and act was represented in its non-existence in a situation where it was unnecessary. However, with the advent of the class system, the state has materialised and with it law has come into being.
There have been several types of class structures, and each has generated its own superstructural law. With the advent of slavery, it was necessary that some system of legitimisation be put in place in order to preserve the social order. Ideologies were established to contain the thoughts and ideas of the citizen and laws enacted to contain their bodily actions. The ideologies, if citizens were made to believe them, legitimized the socio-economic structure of the society (slavery), and via the laws they were made to conform to them. Therefore, law might be considered an “ideological state apparatus” as Louis Althusser termed such phenomena that come into being to hold the structure of a society in place (Klages, 1997). In the case of the slave society, its ideology is necessitates that slaves remain in subjection to their masters. One of the few old records of laws in a slave society is found in the New Testament, where Ephesians 6: 4-6 reads, “slaves, obey your earthly masters with respect and fear” (NIV). These ideas represented not just religious but state laws. Other examples of state law legitimizing the status quo are the fugitive slave laws of 1793 and 1850 (Folsom) enacted in the United States to prevent slaves from doing what might be considered natural, and that is to resist the oppression of slavery. The law against freedom asserts itself in the legitimization of these socio-economic standards, not in a manner consistent with itself or with nature, but according to the caprices of the social age.
Beyond slavery is the class structure defined by feudalism. Feudalism is a form of economic ranking that arises in the absence of a strong central government. The ranks are inhabited by noblemen at the higher level and peasants at the lower level. In about the 10th century C.E., this kind of establishment rose up in Europe as it recovered from the turmoil that wrecked the political institutions and adapted to an economy without money. These leaders were mounted and armed, and in possession of the crown’s sanction to own, develop, and defend territories that they occupied. Peasants who were allowed to live on the land were also expected to work it freely with little or no expectations of wages. With the favour of the monarch came the right of the noble to enforce his stake in the land as well as his authority over the peasant who worked it. This was law. Since it was often necessary for powerful lords who conquered the lands of the smaller lords to make agreements about turning lands over to each other, the law evolved to include the signing of such contracts and the exchange of fiefs, which is land rather than money exacted for service. Such contracts were given the legal term “contracts of ‘homage and fealty’” as one party agrees to become the lawful servant of the other. This is a prime example of the metamorphosis of the law in response to circumstances. Rather than continually uphold the ownership of the land on the behalf of the one lord, it allows for its release to the next, and the subjugation of that one in slavery to the more powerful lord. In addition, the law that once granted complete sovereignty to the monarch, becomes of necessity inconsistent with itself, as the strength of the monarch diminishes and more power is accorded to local lords. The law changes to accommodate the new socio-economic situation that the country finds itself in, and in so doing encompasses ideologies of both Marx and Feyerabend.
The law concerning the serfs of feudalism was slightly more in their favour than those pertaining to slaves. While slaves were not owners of themselves and were subject to every whim of the master, the law made serfs “servile in a group rather than individually” and gave them had the right to pass on their work to a son (Columbia, 2003). The fact that serfdom and feudalism is described as a step up from slavery concurs with the Marxist view of the evolution of the state, and by extension the laws that govern it. This theory considers feudalism to be the precursor to capitalism, which is in turn a precursor to communism.
According to historian Ted Grant in his book From revolution to counterrevolution, “When it reaches a certain stage, capitalist relations arise and exist side by side with a feudal superstructure. The latter is burst asunder by revolution and the possibilities latent in capitalist production then have the free possibility of fruition unhampered by feudal restrictions” (1997). These restrictions that once were, existed in the form of the laws of the state. They are said to dissolve during the transition, and from their remains are compiled the trappings of a new law to govern the new situation. Here the philosophy and knowledge of the law meets Feyerabend’s theory in the idea of “each part of the collection forcing the others into greater articulation.” The conditions of the state, and therefore of the law as a superstructure, during the times of slavery spelled oppression to many people. They sought equality as the oppressed class, and their resultant actions garnered for them a better position in society. Slavery as a “theory” therefore, forced the articulation of feudalism in order to relieve the burdens that attended slaves. In the same way, the oppressive nature of feudalism became developed in man’s consciousness, and this gave rise to the further forcing of articulation. The laws that legitimize these operations mirror their actions, now tightening its grip, now becoming more favourable to the working class in the transition from slavery to capitalism.
Yet this did not take place all at once, nor once for all. The revolution of the bourgeoisie occurred gradually, with parts of feudalism still lingering, “and to this day the remnants of feudalism exist even in the most highly developed capitalist countries—the peasantry, the aristocracy, the House of Lords in Britain, the monarchy, and so on” (Grant, 1997) The House of Lords is a mediating legal institution that seeks to hold into place the hierarchy represented by the monarchy, the aristocracy, and the peasantry. It is a superstructure, built upon the remnant of feudalism, but tailored and adjusted to fit the capitalist society to which the state has evolved.
The transition from capitalism to communism is, according to Marxism, the next logical step. Leon Trotsky argues, however, that the transition from one to the other is a slow evolutionary process that has not yet been realised even in the Soviet Union. The state and the bureaucracy that holds the law is also in a state of transition. It would be accurate to describe this state and its laws, not as completely communised but one that is in preparation for the true achievement of communism. In terms reminiscent of those used by Feyerabend, Trotsky describes the evolution of the state and its laws: “Evolution is far from consisting […] in a steady accumulation and continual ‘improvement’ of that which exists. It has its transitions of quantity into quality, its crises, leaps and backward lapses” (1937).Trotsky further goes on to establish that according to this reasoning, the laws that uphold the state, that keep the one class subject to the next, remain somewhat in place after such a revolution, though in theory it should have changed.
According to theory, once communism has been effected, the laws and bureaucracy that must exist in capitalism are no longer necessary in a state where there are no oppressed people. Therefore, law (and the state it preserves) must die. In fact, one of the great dogmatists of Marxism, Lenin, wrote that “the proletariat needs only a dying state,” hinting that once the working class gains control of its own rule, the state begins to disintegrate or dissolve. Laws are no longer necessary, as laws are rules created by an oppressive situation in which antagonism is a hazard, and which need an army of bureaucrats to make adherence to them more likely to occur (qtd. in Trotsky, 1937). It is here that Lenin runs into problems, because he asserts that once the proletariat takes over, it will create its own mechanism using the working class, and will “take measures against their turning into bureaucrats” (Trotsky, 1937). He does not, however, offer a definition of the “measures” to which he refers. These sound suspiciously like laws and further oppression in the form of barriers to self actualisation. This constitutes yet another state, which points toward not a dissolution of the state (as Marxist-Leninist dogma boasted), but still another hiccup in the frenzied road of the evolving laws of the state.
The contradictions go on further in Lenin’s conception of the law and those who enforce it. His view, idealistic, allows for the election (always open to recall) of officials, wage payments to them no higher than that of a worker, and a regime so supervised that “all may for a time become bureaucrats, and therefore nobody can become a bureaucrat” (qtd in Trotsky, 1937). This appears to be a theory incompatible not just with nature but also with logic. It posits equality without the existence of bureaucrats to enforce laws, yet freedom can hardly be said to exist as everywhere there is the presence of the law. This law is now in the hands of all the people around. It is no longer concentrated or clumped into pockets of police, army, or government officials and civil servants; it exists in everyone’s own house.
The law then exists in this situation as a mechanism to prevent the re-ascent of capitalism. This communism, the purported liberator of the people, also needs laws to fight against those who would rise and employ (that is, oppress) another. So the laws that once enforced the capitalistic tendencies of man now become the diametrically opposed laws that prevent precisely such a thing. This is what Feyerabend describes as “an ever increasing ocean of mutually incompatible (and perhaps even incommensurable) alternatives.” Yet it is still to be seen how incompatible or incommensurable.
The law as demonstrated in the Soviet Union of which Trotsky wrote (and which has been the most prominent example of Marxist theory in practice) had, in his opinion, remained something of what it was under the capitalist regime. The oppressive nature of the structure made the superstructure (as reflected in the laws) oppressive. The following is a picture of the lingering nature of the state and its laws:
However you may interpret the nature of the present Soviet state,
one thing is indubitable: at the end of its second decade of existence,
it has not only not died away, but not begun to “die away.” Worse
than that, it has grown into a hitherto unheard of apparatus of
compulsion. The bureaucracy not only has not disappeared, yielding
its place to the masses, but has turned into an uncontrolled force
dominating the masses. (Trotsky, 1937).
From this description, it is not quite clear whether a feudalist, capitalist, or communist society is being presented. It is seen therefore that laws governing a state rest on a base or structure that dictates its scope and methods, and the requirements of the structure are often alike even though their names may be different.
Trotsky offers a reason for this contradiction. He terms it the “dual character” of the communist state. The laws that govern the dictatorship in the proletarian state are merely a temporary necessity that enforces the remnant relationships of a capitalistic society. The formerly oppressed workers might be given to retribution, whereas the newly expropriated may be given to retaliation. Trotsky analyses the problem and realises that although capitalism (the struggle of one man against all men) has been replaced by “a socialisation of the means,” this does not eliminate the “struggle for individual existence” (Trotsky, 1937). The (formerly) oppressed and the oppressor must be kept from attacking each other, and the latter group must also be kept from seeking to reinstitute the former regime in which it had an advantage. Laws must be enacted to ensure this, and a bureaucracy employed to enforce the laws.
In addition, laws must exist in a capitalist state in order to encourage production, so that products might proceed, according to the communist adage, from each according to his ability, to each according to his need. In a state where incentives were once given for work, in order for that work to continue, incentives must for a time continue to be meted out. It is this situation that Lenin addresses when he writes, “Bourgeois law… is inevitable in the first phase of the communist society, in that form in which it issues after long labor pains from capitalist society,” so that what ensues from the revolution of communism to capitalism is “a bourgeois state without the bourgeoisie” (qtd. in Trotsky, 1937). The law, as superstructure, must therefore correspond to the state that it serves.
It is here that the jurisprudence does not seem to match Feyerabend’s philosophy, for here capitalism and communism, notably at odds with each other, do appear to be somewhat compatible, if antagonistic. They certainly are commensurable as both can be expressed in terms of a theory of the state. Although the spirit of Feyerabend’s theory is present, as the laws represented by these two would appear to be at loggerheads, it has been shown that they are very similar to each other, and are sometimes identical in the systems they must enforce and protect.
It can therefore be concluded that jurisprudence as reflected in Marxist theories of law and state demonstrate what Feyerabend rightly construes as a frictional relationship among things that are theoretically incompatible. It is seen, however, that sometimes the incompatible must become compatible because circumstances do not allow them to be otherwise. It was Feyerabend’s philosophy that scientific method and theory do not always hold the answers and that dogma may sometimes have to be discarded. It would not therefore be averse to his philosophy if a part of his theory were to be discarded to make room for the reality in which laws of capitalism may still govern a communist society.
Columbia Electronic Encyclopedia, The. “Serfs, ancient history, Middle Ages, and feudalism.” Columbia UP. http://reference.allrefer.com/encyclopedia/S/serf.html
Feyerabend, Paul. 1975. Against Method. London: Verso.
Folsom, Ed. “Fugitive Slave Law: background issues.” Walt Whitman, Emily Dickinson, and the Civil War. http://www3.iath.virginia.edu/fdw/volume2/folsom/
Grant, Ted. 1997. From revolution to counter-revolution. Wellred Publications. http://www.marxist.com/russiabook/appendix2.html
Head, Mike. 1998. “Marxism and the law.” World Socialist Web Site. ICFI. http://www.wsws.org/correspo/1998/sep1998/law-s16.shtml
Klages, Mary. 1997. “Louis Althusser’s Ideology and ideological state apparatuses.” Boulder: U. of Colorado. http://www.colorado.edu/English/ENGL2012Klages/
Preston, John. 2005. “Paul Feyerabend.” Stanford Encyclopedia of Philosophy. Edward N. Zalta (ed.), http://plato.stanford.edu/archives/win2005/entries/feyerabend/
Trotsky, Leon. 1937. The Revolution Betrayed. http://www.marxists.org/archive/trotsky/works/1936-rev/ch03.htm