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Marxism and the Rule of Law: Reflections After the Collapse of Communism

Published online by Cambridge University Press:  27 December 2018

Martin Krygier
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Abstract

This article concerns the relationship between the thought of Karl Marx and the fate of law, and the rule of law, in the communist states of the Soviet Union and east and central Europe. It takes the rule of law to be primarily an attempt to institutionalize restraint on power through law, and it takes it to be realized to a far greater extent in Western liberal democracies than in once-communist states. It argues that Marx's thought offered no support for such institutionalization of restraint, but, on the contrary, considerable support to the repressive, ideological and purely instrumental uses of law and the rejection and destruction of the rule of law, which were characteristic of communism.

Type
Debate: Marxism and the Rule of Law
Information
Law & Social Inquiry , Volume 15 , Issue 4 , Fall 1990 , pp. 633 - 663
Copyright
Copyright © American Bar Foundation, 1990 

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References

1 Cf. Leszek Kolakowski, 1 Main Currents of Marxism 2 (Oxford, 1978): It is impossible to answer the questions “How can the various problems of the modern world be solved in accordance with Marxism?” or “What would Marx say if he could see what his followers have done?” Both these are sterile questions and there is no rational way of seeking an answer to them. Marxism does not provide any specific method of solving questions that Marx did not put to himself or that did not exist in his time. If his life had been prolonged for ninety years he would have had to alter his views in ways that we have no means of conjecturing.Google Scholar

2 See Adam Czarnota & Martin Krygier, “Revolutions and the Continuity of European Law,” in Zenon Bankowski, ed., Revolutions and Law in Legal Thought (Aberdeen, 1991 (forthcoming)).Google Scholar

3 See Piers Beirne & Alan Hunt, “Law and the Constitution of Soviet Society; The Case of Comrade Lenin,” 22 Law & Soc'y Rev. 575 (1988); Martin Krygier, “Weber, Lenin and the Reality of Socialism,” in Eugene Kamenka & Martin Krygier, eds., Bureaucracy: The Career of a Concept 61–87 (New York, 1979) (“Kamenka & Krygier, Bureaucracy”); A. J. Polan, Lenin and the End of Politics (London, 1984).CrossRefGoogle Scholar

4 See Martin Krygier, “‘Bureaucracy’ in Trotsky's Analysis of Stalinism,” in Marian Sawer, ed., Socialism and the New Class 46–66 (Adelaide, 1978).Google Scholar

5 For broader reflections on the relationship between Marxism and communism of a sort I find congenial, see Leszek Kolakowski, “Marxist Roots of Stalinism,” in Robert C. Tucker, ed., Stalinism 283–98 (New York, 1977) (‘Tucker, Stalinism”), and Kolakowski's Main Currents of Marxism, especially the introduction and recapitulation and philosophical commentary (vol. 1) and epilogue (vol. 3).Google Scholar

6 I have discussed some of these critics in “Critical Legal Studies and Social Theory— A Response to Alan Hunt,”7(1) Oxford J. Legal Stud. 26 (1987).CrossRefGoogle Scholar

7 As the New York Times reported, Professor Zdenek Safar, instructor in Marxism-Leninism at the Charles University, has been fired along with his 180 colleagues: “‘I think I'll start my own business,’ he said matter-of-factly. ‘Now it will be possible to make even more money in Czechoslovakia than in Austria.’”N.Y. Times, 28 Feb. 1990, at A5. See also “Czechoslovakia's Universities Realign Their Faculties,”Chronicle Higher Educ., 7 March 1990.Google Scholar

8 One of the most illuminating contrasts between political cultures, accessible only through experience or thick description, is that between the taken-for-granted freight—or “local knowledge,” to use Geertz's phrase—which similar and ordinary words come to carry in one place but not in another. “Normal” is such a word. In Poland, contrasts with “normal” societies are inescapable in ordinary conversation. The word has layers of local experience and knowledge built into it. So, in the understanding of ordinary life, do such experiences as na lewo (literally “on the left,” roughly and more exactly “under the table” or “on the sly”) or zalatwianie spraw (the universal socialist talent for “fixing [or arranging] things” which in “normal” countries are handled in more formalized and less Byzantine ways). Elsewhere I have tried to flesh out some of the texture of everyday life that this sort of language presupposes. Here I can do no more than refer to that discussion. See “Poland: Life in an Abnormal Country,”Nat'l Interest, Winter 1989/90, at 55–64; “In Occupied Poland,”Commentary, March 1986, at 15–23. See also Janine Wedel, The Private Poland (New York: 1986).Google Scholar

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10 Lenin, “Immediate Tasks” at 478–79.Google Scholar

11 A. Vyshinski, Sudoustroistva v SSR (Judiciary of the USSR) 32 (2d ed. Moscow, 1935), quoted in H. J. Berman, Justice in the USSR 42–43 (1963). Berman continues (at 391 n.20); “Krylenko, People's Commissar of Justice until 1937, was even more outspoken in his statements that law must be subordinated to ‘expediency.’” Cf Sam Krislov's recent observation: “The new freedom of perestroika has unveiled gross violation of independent judgment by judges and prosecutors. The president of the Supreme Court climaxed these revelations by calling for legislation making it illegal for government or party officials to direct a verdict in a case—a confession in avoidance of a devastatingly revealing nature.”“Socialist Legalism in Poland and the Triumph of Law” (presented at meeting of Research Committee on Comparative Judicial Studies, 26–27 May 1990).Google Scholar

12 Adam Kopatka “Pojęcic praworządności” (Conceptions of the Rule of Law), in Kopatka, ed., Podstawowe Prawa i Obowiqzki Obywateli PRL (Fundamental Rights and Duties of Citizens of the Polish People's Republic) 16 (Warsaw, 1969).Google Scholar

13 See Inga Markovits, “Law and Glastnost': Some Thoughts About the Future of Judicial Review Under Socialism,” 23 Low & Soc'y Rev. 400 (1989).Google Scholar

14 See “Kakim dolzhno byt pravovoe gosudarstvo?”Literaturnaia Gazeta, 8 June 1988, published in English as “What Should a Law-governed State Be?” 28 Soviet L & Gov't, Summer 1989, No. 1, at 51–65.Google Scholar

15 Religion in Communist Lands 141 (1989), quoted in Markovits, 23 Law & Soc'y Rev. at 404.Google Scholar

16 “After Death Before Birth: Recent Changes in the Polish Constitution” (presented at the Law and Society Conference, 12–14 Dec. 1989, La Trobe University, Melbourne, Australia).Google Scholar

17 Id.Google Scholar

18 As Czarnota (id.) comments on the pro-law official affirmations: “Of course this is propaganda but the change in the form of language reflects not only cosmetic change but the possibility of a radical, paradigmatic change in people's understanding of law. For probably the first time in the history of the communist states law is being taken seriously as an instrument for the regulation and organisation of civil society and of the state.”Google Scholar

19 “Eastern Europe: The Year of Truth,”N.Y. Rev. Books, 15 Feb. 1990, at 21.Google Scholar

20 This section is derived from my “Rządy Prawa: Kulturowe Osiągnięcie o Charakterze Uniwersalnym” (The Rule of Law: A Cultural Achievement of Universal Significance), Proceedings of the Third International Congress of Scholars of Polish Origin, Warsaw (forthcoming).Google Scholar

21 James Boyd White, “Law as Law,” in Heracles' Bow 239 (Madison: University of Wisconsin Press, 1985).Google Scholar

22 For a brief but illuminating discussion of recent German works on Nazi jurisprudence, see Massimo La Torre, “‘Degenerate Law,’ Jurists and Nazism,” 3(1) Ratio Juris 95 (1990).Google Scholar

23 “Technik des Staates,”Zeitschrift der Akademie für deutsches Recht 2 f. (1941), quoted in Otto Kirchheimer, “The Legal Order of National Socialism,” in Politics, Law and Social Change 99 (New York, 1969) (“Kirchheimer, Politics”).Google Scholar

24 See Guenther Teubner, ed., Dilemmas of the Welfare State (Berlin, 1986).Google Scholar

25 See Kirchheimer, “The Rechtsstaat as Magic Wall,” in Kirchheimer, Politics 428–52; Joseph Raz, “The Rule of Law and Its Virtue,” in The Authority of Law 210–29 (Oxford, 1979) (“Raz, ‘Rule of Law’”).Google Scholar

26 See F. A. Hayek, Law, Legislation and Liberty (Chicago, 1973 (vol. 1); 1974 (vol. 2); 1979 (vol. 3); Eugene Kamenka & Alice Erh-Soon Tay, “Beyond Bourgeois Individualism— The Contemporary Crisis in Law and Legal Ideology,” in Eugene Kamenka & R. S. Neale, eds., Feudalism, Capitalism and Beyond 127–44 (Canberra and London, 1975); Theodore J. Lowi, “The Welfare State, the New Regulation, and the Rule of Law,” in Allan C. Hutchinson & Patrick Monahan, eds., The Rule of Law: Ideal or Ideology 17–58 (Toronto, 1987) (“Hutchinson & Monahan, Rule of Law”); Geoffrey de Q. Walker, The Rule of Law (Melbourne, 1988).Google Scholar

27 See Roberto Managabeira Unger, Law in Modem Society (New York, 1976).Google Scholar

28 I have said something about crisis talk in 7(1) Oxford J. Legal Stud. (cited in note 6). See the very sensible remarks of David Nelken, “Is There a Crisis in Law and Legal Ideology?” 9 J. L & Soc'y 177(1982).Google Scholar

29 The sort of issues I have in mind here have been elaborated in many places. Among these accounts, see Norberto Bobbio, “The Rule of Men or the Rule of Law?” in The Future of Democracy 138–56 (Minneapolis, 1987); Lon L. Fuller, The Morality of Law (2d ed. New Haven, Conn., 1969); F. A. Hayek, The Constitution of Liberty (London, 1960); Michael Oakeshott, “The Rule of Law,” in On History and Other Essays 119–64 (Oxford, 1983); Raz, “Rule of Law” (cited in note 25). See also the symposium on the rule of law, edited by Noel B. Reynolds, in 2(1) Ratio Juris (1989).Google Scholar

30 By government here I refer in a broad sense to political authorities, so as to include the Party in socialist states. In a narrow sense of the word, the executive government might be under law, while the Communist Party remains above it. The Party might indeed insist on that. That does not satisfy this element of the rule of law.Google Scholar

31 Cf. John Finnis, Natural Law and Natural Rights 273–74 (Oxford, 1980), and Jeremy Waldron, “The Rule of Law in Contemporary Liberal Theory 2(1) Ratio Juris 93–94 (1989).Google Scholar

32 On both sorts of problems, see Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York, 1978). See also Hutchinson & Monahan, Rule of Law. Google Scholar

33 Cf. Doreen McBarnet, Conviction: Law, the State and the Construction of Justice (London, 1981).Google Scholar

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35 See “Symposium: Minority Critiques of the Critical Legal Studies Movement,” 22 Harv. C.R.-C.L Rev. 297 (1987), particularly Richard Delgado, “The Ethereal Scholar: Does CLS Have What Minorities Want?” at 301–22, and Patricia J. Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights” at 401–33.Google Scholar

36 See Thompson's eloquent and—among Marxists, controversial—conclusion to Whigs and Hunters at 258–69 (Harmondsworth, 1977) (“Thompson, Whigs and Hunters”). It is symptomatic of differences between Eastern and Western life experience, and of the Western left's difficulties with the rule of law, that these 11 pages should have caused such a stir. See, e.g., Bob Fine, Democracy and the Rule of Law 169–89 (London, 1984); Adrian Merritt, “The Nature and Function of Law: A Critique of E. P. Thompson's Whigs and Hunters,” 7 Brit J.L & Soc'y 194 (1980); Morton J. Horwitz, “The Rule of Law: An Unqualified Human Good?” 86 Yale LJ. 561 (1977). A liberal's only complaint might be that it took Thompson so long to get there. He might have read Madison.Google Scholar

37 Thompson, Whigs and Hunters, has some illuminating things to say about this aspect of the rule of law.Google Scholar

38 “A Marxist Theory of Law,” 1 Law in Context 49 (1983).Google Scholar

39 See Martin Krygier, “Saint-Simon, Marx and the Non-governed Society,” in Kamenka & Krygier, Bureaucracy (cited in note 3) (“Krygier, ‘Saint-Simon’”), and id., “Marxism and Bureaucracy: A Paradox Resolved,”20(2) Politics 58 (1985).Google Scholar

40 “Legislation, whether political or civil, never does more than proclaim, express in words, the will of economic relations.” Karl Marx, “The Poverty of Philosophy,” in Karl Marx & Frederick Engels, 6 Collected Works 147 (London, 1976) (volumes are cited as “Marx & Engels, Collected Works”).Google Scholar

41 See particularly “Comments on the Latest Prussian Censorship Instruction,”“Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates,”“Debates on the Law of Thefts of Wood,”“The Divorce Bill,”“Justification of the Correspondent from the Mosel,” in Marx and Engels, 1 Collected Works (London, 1975).Google Scholar

42 “The material life of individuals … is the real basis of the state and remains so at all the stages at which division of labour and private property are still necessary…. These actual relations are in no way created by the state power; on the contrary they are the power creating it. The individuals who rule in these conditions … have to give their will, which is determined by these definite conditions, a universal expression as the will of the state, as law, an expression whose content is always determined by the relations of this class, as the civil and criminal law demonstrates in the clearest possible way.” Karl Marx & Frederick Engels, The German Ideology 348 (Moscow, 1976) (“Marx & Engels, German Ideology”).Google Scholar

43 “Report to the Basle Congress,” in David Fernbach, ed., The First International and After (New York, 1974) (“Fernbach, First International”). Cf. Engels, “The Condition of the Working Class in England,” in Marx & Engels, 4 Collected Works 514–17.Google Scholar

44 “If, like the Berlin ideologists, one judges liberalism and the state within the framework of local German impressions, or limits oneself merely to criticism of German-bourgeois illusions about liberalism, instead of seeing the correlation of liberalism with the real interests from which it originated and without which it cannot really exist—then of course, one arrives at the most banal conclusions.” Marx & Engels, German Ideology 211.Google Scholar

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46 Karl Marx & Frederick Engels, The Manifesto of the Communist Party, in Karl Marx, Political Writings, vol. 1: The Revolutions of 1848 83 (Harmondsworth, 1973) (“Marx & Engels, Manifesto”).Google Scholar

47 See the series of letters Engels wrote after Marx's death, which seek to allow some room for what has come to be called the “relative autonomy” of law: Karl Marx & Frederick Engels, Selected Correspondence 417–19, 421–25, 459–60, 467–68 (2d ed. Moscow, 1965) (“Marx & Engels, Correspondence”).Google Scholar

48 “As far as law is concerned, we with many others have stressed the opposition of communism to law, both political and private, as also in its most general form as the rights of man.”Id. at 225.Google Scholar

49 Cf. Frederick Engels, The Origins of the Family, Private Property and the State (Moscow, 1968).Google Scholar

50 Hugh Collins, Marxism and Law 240 (Oxford, 1982) (“Collins, Marxism”).Google Scholar

51 Thompson, Whigs and Hunters 266 (cited in note 36).Google Scholar

52 Collins, Marxism 144.Google Scholar

53 Id. at 146 (emphasis added).Google Scholar

54 See “Critique of the Gotha Programme,” in Fernbach, First International 339–59 (cited in note 43).Google Scholar

55 Leon Trotsky makes the point in Their Morals and Ours (New York, 1939).Google Scholar

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57 See Karl Marx, The Civil War in France 164, 227 (Peking, 1966) (this edition contains the important first and second drafts); Marx & Engels, Correspondence 262. See also the 1872 preface to the German edition of the Communist Manifesto. Google Scholar

58 See Michael Evans, Karl Marx 149 (London, 1975).Google Scholar

59 Karl Marx, “The Crisis and the Counter-Revolution,” in Marx & Engels, 7 Collected Works 431 (cited in note 40).Google Scholar

60 As Kolakowski points out, to the extent that one believes state and law to be the servant of ruling classes: There is nothing wrong in concluding that the same situation prevails, at least so long as communism in the absolute form has not entirely dominated the earth. In other words, the law is an instrument of the political power of the “proletariat,” and since law is just a technique to wield power, and, more often than not, its main task is to cover violence and to deceive the people, it makes no difference whether the victorious class rules with the help of the law or without it; what matters is the class content of power and not its “form.”“Marxist Roots of Stalinism,” in Stalinism 295 (cited in note 5).Google Scholar

61 I have discussed Jugoslav and Polish once-Marxist dissidents—including Djilas and Kuroń and Modzelewski in “The Revolution Betrayed? From Trotsky to the New Class,” in Kamenka & Krygier, Bureaucracy 88–111; and Krygier, 20(2) Politics (cited in note 39).Google Scholar

62 See 1 Capital 88–89.Google Scholar

63 See Emile Durkheim, The Division of Labor in Society 211–17 (New York, 1964).Google Scholar

64 1 Capital 84.Google Scholar

65 See Krygier, “Saint-Simon” at 54 (cited in note 39).Google Scholar

66 The General Theory of Law and Marxism, in Piers Beirne & Robert Sharlet, eds., Pashukanis: Selected Writings on Marxism and Law 89 (New York, 1980).Google Scholar

67 Id. at 60.Google Scholar

68 Id.Google Scholar

69 Id.Google Scholar

70 Id. at 88.Google Scholar

71 Id. at 124.Google Scholar

72 Quoted in Robert Sharlet, “Pashukanis and the Withering Away of Law in the USSR,” in Sheila Fitzpatrick, ed., Cukural Revolution in Russia 1928–31 (Bloomington, Ind., 1978).Google Scholar

73 Quoted in Robert Sharlet, “Stalinism and Soviet Legal Culture,” in Tucker, Stalinism 160 (cited in note 5) (“Sharlet, ‘Stalinism’”).Google Scholar

74 Harvest of Sorrow: Soviet Collectivization and the Terror Famine 299–307 (London, 1986).Google Scholar

75 Decree of the Central Executive Committee and the Council of People's Commissars of the USSR, 1 Feb. 1930, “On the Measures to Strengthen Socialist Reorganization of Agriculture in Areas of All-Out Collectivization and to Fight Kulaks,” in Zigurds L. Zile, ed., Ideas and Forces in Soviet Legal History 168 (2d ed. Madison, Wis., 1970).Google Scholar

76 Sharlet, “Stalinism” at 165 (cited in note 73).Google Scholar

77 Political Justice 287, cited in Sharlet, “Stalinism” at 168.Google Scholar

78 Marx & Engels, Manifesto 70 (cited in note 46).Google Scholar

79 Nor was it. Although Stalin and Trotsky disagreed on a good deal, on this conceptual distinction they were at one. Attacking Trotsky in 1923, Stalin explained, “It is necessary to put limits to discussion, to preserve the party, which is the fighting unit of the proletariat, from degeneration into a discussion club.”“On the Tasks of the Party,”Pravda, 2 Dec. 1923, quoted in Robert Vincent Daniels, The Conscience of the Revolution 221 (New York, 1960). Cf. Trotsky: “we stand not for democracy in general but for centralist democracy…. The revolutionary party has nothing in common with a discussion club where everybody comes as to a cafe.”Writings of Leon Trotsky 94 (New York, 1975 [1930]).Google Scholar

80 “The Marxian Conception of Freedom,” in Zbigniew Pelczynski & John Gray, eds., Conceptions of Freedom in Political Philosophy 217 (London, 1984). I have been much influenced by Walicki's writings on this aspect of Marx's thought. See also his “Marx and Freedom,”N.Y. Rev. Books, 24 Nov. 1983, at 50–55 (1983); and “Karl Marx as Philosopher of Freedom,”Critical Rev., Fall 1988, at 10–58.Google Scholar

81 Karl Marx, Early Writings 211–41 (New York, 1975).Google Scholar

82 Id. at 215.Google Scholar

83 Id.Google Scholar

84 Id. at 221.Google Scholar

85 Id. at 218.Google Scholar

86 Id. at 226–27.Google Scholar

87 Id. at 227.Google Scholar

88 Id. at 220.Google Scholar

89 Id at 229.Google Scholar

90 Id at 238.Google Scholar

91 Id at 241.Google Scholar

92 Id at 221.Google Scholar

93 Id. at 239.Google Scholar

94 See Leszek Kolakowski, 3 Main Currents of Marxism 523 (Oxford, 1978).Google Scholar

95 Cf. Benjamin Constant, Politicol Writings, trans. & ed. Biancamaria Fontana (Cambridge, 1988); Aleksandr Herzen, From the Other Shore, with introduction by Isaiah Berlin (Oxford, 1979).Google Scholar