From a Letter of Engels to August Bebel (1875)
Of the many unnecessarily obscured elements of the Marxist heritage, few are more distorted than the concept of the “withering away of the state”. Both the friends and foes of Marx tend to interpret this as proposing the eventual extinction of state-form. The revolutionary interim of the dictatorship of the proletariat, it is acknowledged, will be a state, but it will be a state tasked with removing the conditions of its own existence. Marx, it is commonly assumed, agrees with Bakunin that the end point the revolutionary process tends towards is the moment in which man will be free from any fetters “that have been imposed upon him externally by any foreign will whatsoever, human or divine, collective or individual (God and the State)”, albeit through a more roundabout route than the latter would have considered acceptable. Starting from this premise, a strong contradiction is then felt by many between this radical anti-statist expectation and the political realities of the past century. Surveyed in this light, the doctrine of the withering away of the state takes on the appearance of at best a very distant hope with little immediate meaning, at worst a dangerous millennialist delusion. Either virtually the last 120 years of revolutionary politics are nihilistically declared a sinister travesty, we rule against Marx in favor of history, or else the opinions of Marxism’s founders on this matter should be taken as merely muddled utopian poetry hardly worth thinking of at all. However, looking to the writings of Marx and Engels, we find their position was clear enough, even if never adequately fleshed out, and does not fit with in with the improbably apocalyptic expectations projected upon them by all sides. What they point to is not the extinction of the state-form, but its transformation. Marx and Engels attacked the present day state not so much because it implied subordination, but because it remained trapped in the illusion of having an independent existence over and above that of society itself. This was because they distinguished between “authority”, which could be legitimate, and the classist coercive apparatus that is doomed to pass away. Despite certain understandable polemical ambiguities of expression, this lack of vulgar anti-statism can be seen from their engagement with ‘revisionist’ opponents on both the left and the right. Instead of prophesying the eventual triumph of anarchy, Marx and Engels looked forward to the future replacement of the presently existing ‘political’ state with an ‘administrative’ one
The Cul-de-Sac of the Political
Hegel had already, sympathetically, criticized the French Revolution in both The Phenomenology of the Spirit and The Philosophy of Right for seeking to abolish social iniquity through political fiat. The domination of society by the absolutist establishment of the ancien régime found both its grave and its fitting successor in the Republic of the Year II that, having founded itself on abstract principle of the general universal will, could ultimately only assert its existence through the interminable bloody negation of the Terror:
“In this its characteristically peculiar performance, absolute freedom becomes objective to itself, and self-consciousness finds out what this freedom is. In itself it is just this abstract self-consciousness, which destroys all distinction and all subsistence of distinction within itself (From The Phenomenology of Spirit).”
While never abandoning his belief in the historical necessity and greatness of the Revolution, Hegel drew from the defeat of Jacobinism the conclusion that political activity by itself was an insufficient basis for a modern community. The ‘rational’ state had to base itself on the substantial realities of a nation’s volkgeist, which includes its “religion, its laws, its ethical life, the state of its knowledge, its other particular aptitudes and the industry by which it satisfies its needs (italic mine).” Otherwise, social progress would be constantly shaken by the schizoid extremes of obscurantist reaction and revolutionary fanaticism, as the case of France seemed to so vividly illustrate. For him, famously (or infamously), this hoped for synthesis of rechtsstaat and volkgeist was in the process of being realized in the Prussia of his own day, where he saw (or hoped to see) the legacy of the Enlightenment taking firm root in the soil of Teutonic Protestant civilization. As it so happened, this dream would prove to be destined for the same place as the civic faith of Robespierre and the Spartan republic of Saint-Just.
Marx, from very early on, generalized Hegel’s critique of political thinking from a historical materialist perspective which went beyond the intentions, to put it mildly, of his predecessor. As Marx put it in an 1844 article entitled Critical Notes on the Article ‘The King of Prussia and Social Reform By a Prussian.’In it he portrays the weakness of the King Wihlem IV’s efforts to alleviate poverty being but one instance of the general ineffectiveness of all top-down efforts to deal with the realities of capitalism that stopped short of actually challenging the social structures of exploitation that the state itself was bound up with:
“The more powerful a state and hence the more political a nation, the less inclined it is to explain the general principle governing social ills and to seek out their causes by looking at the principle of the state – i.e., at the actual organization of society of which the state is the active, self-conscious and official expression. Political understanding is just political understanding because its thought does not transcend the limits of politics. The sharper and livelier it is, the more incapable is it of comprehending social problems. The classical period of political understanding is the French Revolution. Far from identifying the principle of the state as the source of social ills, the heroes of the French Revolution held social ills to be the source of political problems.”
On the one hand, this illusion, according to Marx, flows from an exaggerated belief in the power of the will:
“The principle of politics is the will. The more one-sided – i.e., the more prefect – political understanding is, the more completely it puts its faith in the omnipotence of the will the blinder it is towards the natural and spiritual limitations of the will, the more incapable it becomes of discovering the real source of the evils of society.”
This same theoretical blindness flows, in Marx’s view from a self-serving externalization of the causes of social ills that is found among all modern regimes regardless of their affiliation, from the oligarchy of Britain to the Revolutionary French republic Instead of the organization of society itself being the source of social misery, the laws of nature, the evils of human nature, or the counter-revolutionary opinions of the rich are identified as the obstinate impediments which frustrate rational social policy. This results, at “best”, in ultimately futile uses of coercion against persons, at worst in a retreat into mere moralism. “England punishes the poor, the Kings of Prussia exhorts the rich and the Convention beheads the proprietors,” but the problem of pauperism endures, nevertheless.
It should be noted that Marx’s argument here is not that the modern state is iniquitous because it is oppressively strong, but on the contrary because, out of an interested blindness to its own nature, it is too weak. By not making the wage-slavery of modern civil society the direct target of its action, it can only confront social problems in ad hoc manner.
Further, it should be that emphasized that though Marx mocked the illusions characteristic of politics, he did not intend to merely reject it. He certainly did not deny significance in the emancipatory significance of the French Revolution, in all of its phrases. Nor does his life-time of enthusiastic involvement in partisan agitation and organization indicate someone who has quietisically withdrawn into economic fatalism. What Marx does do, however, is relativize the domain of politics by pointing out its limits, and locating these limits as being bound up with it’s essence. This in turn sketches out the state with a paradoxical mission: The achievement of its aims can only be bought about, “contrary to nature”, by its own death:
“If the modern state desired to abolish the impotence of its administration, it would have to abolish contemporary private life. And to abolish private life, it would have to abolish itself, since it exists only as the antithesis of private life.”
However, as is often the case in 19th century German thought, “abolition” is proves not to be the same at all as annihilation.
“Imperious Authority”
While commenting in his notebooks on passages from Statism and Anarchism by Bakunin, Marx remarks in passing on his opponent’s notion that the existence of any state at all implies servitude:
“Bakunin: ‘Then there will be no government, no state, but if there will be a state, then there will also be people who are governed, and slaves.’
Marx: This simply means: if class rule has disappeared, and there will be no state in the present political sense.”
By qualifying ‘state’ here as meaning ‘in the present political sense’, Marx implies that there can be other types of states. What the defining feature of these states were, or could be, he does not say.
Fortunately, his life-long intellectual collaborator provided hints as to what he means here. In an 1872 article entitled On Authority, Engels counters anarchist charges of ‘authoritarianism.’ Importantly, not only does he not deny the accusation he proceeds to elevate ‘authority’ itself in a positive sense. Not only does the anarchist critique not make sense when measured against the realities of revolutionary praxis– “A revolution is certainly the most authoritarian thing there is”–it is also demonstrate a profound ignorance of the nature of modern economic organization. Industrialized agriculture and industry required a complex co-operation of multiple individuals, and the ‘first condition’ for such enterprises to function ‘is a dominant will that settles all subordinate questions.” The ‘will’ could be channeled by a single supervisor or by a committee, but “the necessity of authority, and of imperious authority at that,” was, for Engels, inescapable.
To those who said that a conceptual distinction should be be made between “authoritarian” structures and delegated positions that represented “a commission entrusted”, Engels had nothing but contempt:
“These gentlemen think that when they have changed the names of things they have changed the things themselves. This is how these profound thinkers mock at the whole world.”
Nevertheless, Engels does affirm here a belief in the inevitable death of the political state:
“All Socialists are agreed that the political state, and with it political authority, will disappear as a result of the coming social revolution, that is, that public functions will lose their political character and will be transformed into the simple administrative functions of watching over the true interests of society.”
This echoes the line from the famous passage in Anti-Durhing that speaks of a transition from the “government of persons” to “the administration of things.” This positive evaluation of administration represents an important development within the Marxist corpus. In the 1844 article discussed above, Marx defined administration simply as “the organizing agency of the state” and treated its failures as symptomatic of the failures of politics in general. Now it is forgiven its weakness, on the condition that it becomes the auxiliary to social processes instead tyrannizing over them.Thus, “administrative” authority is positively compared with “political” government. The latter formation is based on class interests that are passing away, not general needs. The former, by contrast denotes hierarchical functions of command and obedience that are not accidental passing feature of capitalist society, but an enduring feature of all conceivable societies:
“We have thus seen that, on the one hand, a certain authority, no matter how delegated, and, on the other hand, a certain subordination, are things which, independently of all social organization, are imposed upon us together with the material conditions under which we produce and make products circulate.”
Thus regarding the question he himself poses, “Will authority have disappeared , or will it only have changed its form?” Engels’ answer is clear.
Stuck between Bakunin and Lasselle
Why did Max and Engels not develop at length upon the evident distinction they wished to make between the capitalist political state and the coming socialist administrative state? In part, at least, their motivation was polemical. Marx and Engels’ positions were obscured by their efforts to deal with an array of opponents who were located to both the left and right of their own positions.
On the one hand, Marxian socialism needed to compete with rival revolutionary groups with a vocally anti-statist bent. To have directly repudiated that tendency would have risked alienating potential supporters, while speaking as if Marxist and anarchist goals coincided in the long run could assuage the suspicions of those who might otherwise have been tempted by more “spontaneous” and “direct” methods. This rhetorical strategy is on full display in The Alleged Splits in the International that written jointly by Marx and Engels in 1872:
“All socialists understand this by Anarchy: once the aim of the proletarian movement, the abolition of classes, has been attained, the state power which serves to keep the great productive majority under the yoke of an exploiting minority small in numbers, disappears and the governmental functions are transformed into simple administrative functions. Alliance turns the thing upside down.”
The word ‘anarchy’ is invoked and treated as the objective of “all socialists.”But the sense of the term is defined in a manner which omits the themes of radical individualism and perpetual insurrection which are normally associated with it.
On the other hand, Marx and Engels wished to distinguish themselves from socialists influenced by Federnand Lassalle, with his understanding of the state as an independent ethical power and his pursuit of a co-operative relationship with the conservative establishment of the German Empire. From Marx’s point of view, such thinking, in the field of praxis, at best led to making senseless demands to the Prussian monarchy that it voluntarily transform itself into a Switzerland; at worst, it encouraged a dishonest collaboration with a regime that Marx’s considered merely “a police-guarded military despotism.” On the theoretical level, the central error of this approach was that it believed the future of the state form could be fundamentally answered through a political means.As desirable as would be the spread of the principle of popular sovereignty, Marx believed that socialists should bear in mind that the overcoming of capitalism hinged on the alteration of economic base. The democratic revolution is distinct from the social revolution. The first, in Marx’s view, still moves within the limitations of bourgeois property rights, while only the latter points to a post-capitalist future whose exact shape can not drawn up before the fact. As Marx wrote in Critique of the Gotha Program:
“The question then arises: What transformation will the state undergo in communist society? In other words, what social functions will remain in existence there that are analogous to present state functions? This question can only be answered scientifically, and one does not get a flea-hop nearer to the problem by a thousand-fold combination of the word ‘people’ with the word 'state’.
The question is not whether the state will exist at all, but how the state will be changed by the alteration of society. What divides Marx from Lasselle’s disciples is thus not the latter’s belief in the state having function, but their alleged mystification of the sources that determine the nature of that function.
Red Legalism
In The Republic and The Laws Plato, the shape of hypothetical ‘ideal’ city states is formed around self-defense against the alien and the avoidance of civil war from within. To this end, he exhorted those aspiring to be just rulers to not allow themselves to be dominated by the demands of the ignorant masses, whom he likened to a “great beast” possessed of capricious and contradictory desires. Instead, he taught the necessity of a permanent divide between the initiated rulers and the people, with the former having to be on a constant state of martial vigilance against all possible points of civic contamination that would sow the seeds of disunity. If the polis was not to succumb to self-destruction, it would only be by a regime that would constantly repress the social interests of all its members. This same fixation with war has defined Western political philosophy ever since-particularly during the modem period, as the philosophers lost faith in both the Classical ideal of philosophical detachment. and the peace promised by the medieval ecclesia. The more ‘representative’ of society the state was portrayed as being, the more repressive power it required to enforce the claimed unity of government and people, and the more total in turn was the loyalty expected of the citizen. This line of thinking achieved its extravagant apogee in Hegel, with his praise of war as the cleansing storm that periodically disrupted the complacency of civil society and obligated all individuals to sacrifice their private interests to the higher collective personhood of the nation-state, in whose actions could be seen “the march of God in the world.”
What Marx and Engels helped developed, albeit in a fragmentary way, was a model of the state that would be no longer defined against the horizon of violence. The homely craft of receptivity replaces the political fantasy of an irresistible will. No longer claiming to re-“present” society in its true form, the state, robbed of its god-like status, becomes merely a minister to the needs of the multitude. This is a political vision closer to Chinese ‘Legalism’ (Fa-Chia) than to the worldview shared by most moderns all of persuasions:
“The ruler is like a mirror which merely reflects the light that comes to it, doing nothing, and yet because of its mere presence beauty and ugliness present themselves to view. He is like a scale which merely establishes equilibrium, itself doing nothing; yet the mere fact that it remains in balance causes lightness and heaviness to discover themselves. The ruler’s method is that of complete acquiescence. He merges his personal concerns with the public good, so that as an individual he does not act. He does not act, yet as a result of his non-action the world brings itself to the state of complete order (From Shenzi by Shen Buhai as translated and reconstructed by Harlee G. Creel).”
But while the Legalist ideal was limited by the fact that the Emperor’s rule was inescapably personal and dependent on the economic exploitation of his subjects, Marx’s administration of the future is conditioned on the modern realities of democratization and economic socialization. Authorities with no warrant except popular need can serve the functions of mirror and scale far better than sovereigns claiming to rule the earth by reason of their divine lineage and the ‘right’ of conquest.
From this perspective, the ‘withering away’ appears no longer as a straightforward death but as a victorious kenosis. Administration, allowing itself to be interpenetrated by all diffuses itself through everything that it touches. The sacrifice of its claim to be an independent power secures for the state in actuality its position at the essential center that it had previously could only express as a grandiose aspiration. The emptying out of its political content secures the realization of its vocation to become identical with the organization of society itself.
Far from implying a totalitarian greyness, however, the advance of the administrative state converges with the liberation of every particular’s possibilities:
“Let roosters herald the dawn and let cats watch for rats. When everything exercises its special qualification, the ruler will not have to do anything. (From Book II, Chapter VIII of the Han Feizi)”
With each finding in the state a space for becoming itself, the various spontaneous forces of order that are generated by all beings seeking their flourishing, instead facing each other as antagonists, gather together in a complementary unity.
If, as Carl Schmitt said, the foundational formula of the political state is Protego ergo Obligo, than that of the administrative state will be Pasceo ergo Obligo. Instead of loyalty being owed in exchange for protection against other human beings (in the name of securing specific class interests and/or the armed self-defense of the community) obligation will exist to the extant that the administrative apparatus secures the material existence of each and every one of society’s members-and no further.
Coda: Some Doubts, Some Hope
From the left it may be said that this vision is hardly what modern people mean by emancipation. If the job of administration is still done by human beings, than communism appears to be indeed, to paraphrase the old John Gardner saw, merely capitalist exploitation of man by man reversed. Why should people in the future not resent the division of labor between administration the administrated as an alienating imposition on their freedom any less than they now do the division of government and governed? This line of criticism, of course, treats exploitation and subordination as equivalent, which is certainly not the case in Marx’s system, where the latter term refers to the extraction of surplus value, not to any and all relations that involve the giving of orders. And as we have seen, Engels has provided several cogent arguments against those who would wish to make a vague crusade against ‘authority’ itself.
Perhaps more interesting are the objection that can be proposed from ‘the right’. It may be argued that this hypothetical post-political state is still too naively utopian. From the resurgence of populist xenophobia in America to the Syrian civil war, contemporary history continues to demonstrate that the objective conditions that reproduce the existence of the political state have not gone away, not withstanding the many shrill announcements of its imminent demise. Why this is so must be carefully reflected upon. Further, key to Marx and Engels’ confidence in the eventual substitution of the ‘government of persons’ with the ‘administration of things’ was the belief that capitalism, and the movement towards socialism, would tend to eliminate, not multiply, differences among human beings, leaving the state with only purely economic questions to attend to. However, the past century of wars, revolutions, and counter-revolutions has shown, the ‘globalization’ and homogenization of the means of production has been accompanied by the proliferation of heterogeneity. New social differences have been created, while old ones have been given new life. At the same time, civic and political democracy, instead of creating a host of liberated Freubachian individuals happy to be joined in a recovered species being, results instead in a seemingly endless multiplication of divided, unhappy subjectivities—the predictable products of highly compartmentalized societies in a constant state of conflict over incommensurable values. Instead of labor becoming “not only a means of life but life’s prime want”, the poiesis of identity-expression has been democratized in all directions, leading to complicated social games of recognition that resist being assimilated into a unitary culture, ‘proletarian’ or otherwise.
However, this persistence of heterogeneity among human beings does not necessarily mean that we are doomed to resort again and again to a re- politicizated state apparatus. If modernity has given us planetary total wars that repeatedly threaten to exceed all attempts to contain them, it has at the same time expanded the scope of tolerance and the possibilities for cultural intermingling based upon formal equality instead of colonial condescension.The more the general conditions of peace and prosperity are secured, the more the masses can meld, and separate, among themselves as they will.
As Mao said:
“The only way to settle questions of an ideological nature or controversial issues among the people is by the democratic method, the method of discussion, criticism, persuasion and education, and not by the method of coercion or repression.(From On the Correct Handling of Contradictions Among the People)
Instead of top-down instruction by a single pedagogue, the work of administrating people could become the work of all, not in the sense of a universal clerkdom, but in the sense of each person becoming, in the Socratic sense, the midwife to the soul of the other. That process that has been called variously Paideia, Bildung, and Metanoia would unfold freely, liberated from the taint of both class privilege and the bullying of the police. Any and all non-economic, non-technocratic authority of persons over persons would be the product not of bit and bridle but the moral magic exercised by knowledge and character.
This is speculation that oversteps the present by a wide margin, not a set prescriptions by which one could impose by some private decree on any actually existing society. As was said before, the social realities that perpetuate the political state have not gone away. And history has repeatedly shown that unity is the precondition for division, and that power must be first concentrated before it can be relaxed. Communicative action cannot create the conditions of its own existence. However, by bearing always in mind the superiority of persuasion to coercion, and that government exists for society, not society for government, we may be preserved from forgetting the “natural and spiritual limitations of the will.” Or, since we perhaps cannot but be caught up again and again in the frenzy of political voluntarism, we may at least learn not to be seduced into mistaking its tyranny for truth.
Edited by RedMaistre ()
We have already shown that socialist has been attacked as ‘lawless’ and ‘lacking the rule of law’ in liberal jurisprudence. This charge too was leveled at the Chinese socialist period. Lin Feng summarizes this attitude: “the years 1956 to 1976 marked a period when no respect was shown to law, including the Constitution” (Feng, 16) This view has been given strength by the Chinese communist party, which considers the cultural revolution a “left error” and suppresses pro-Maoist ideology. We have already shown that socialist law is ‘law’ operationally, but this charge remains superficially appealing when leveled at the 1975 Constitution of the People’s Republic of China which had only 30 articles and was extremely simplistic in its juridicial prescriptions. Thus, to find the legal character of the 1975 Constitution is to find the radical jurisprudence of its socialist character.
The history of Chinese law is similar to the Soviet Union’s. A revolution and civil war was immediately followed by a bourgeois-democratic constitution, the 1949 Common Program, which specified the bourgeois-democratic task of the state (called ‘new democratic’ in art. 1) including the unification of the country (art. 2), land reform (art. 3) and bourgeois freedoms: thought, speech, publication, assembly, association, correspondence, person, domicile, change of domicile, religious belief and the freedom of holding processions and demonstrations (art. 5). It established the skeletons of what would become the PRC government structure. It specifies imperialism, feudalism, and ‘bureaucratic capitalism’ as the enemies of the state, differentiating in the same way as Lenin between small-production capitalism and the ‘commanding heights’ under state control. While the Soviet civil war came after the revolution and the Chinese before, the economic and political tasks in the construction of a new socialist order based on developing the ‘forces of production’ in the wake of war and precarious popular support was the same. The key difference, which became increasingly reflected in the legal policies of China compared to the Soviet Union, was as Mao said “ basic error is mistrust of the peasants” (Zedong, 135). This of course had nothing to do with Stalin and everything to do with the structure of the Bolshevik revolution as an urban proletarian revolution and the Chinese revolution as a rural, peasant revolution. Thus, while the 1954 constitution was heavily modeled on the 1936 Soviet constitution, the actual development of the Chinese economy (and the legal superstructure) increasingly diverged from the forced collectivization of the Stalin period.
The 1954 constitution was meant to be transitional, to be replaced by a socialist constitution once “the gradual transition to a socialist society” (preamble) had been completed. And while the emphasis on industrialization remained, in practice this took very different forms. The main problem of the Chinese economy at the time of the revolution was “the growth of modern industry was constrained by the abject performance of an agricultural sector incapable of supplying the wage goods and raw materials required.” (Bramall, 72) Just as the Soviet Union had to go through a NEP capitalist development, China too needed an NEP. Not only was China “much less developed than the Soviet Union in 1913, let alone in 1928” (Bramall, 85), the land reform policy of the CCP during the war was “very popular across the countryside” (Bramall, 79) and thus one of the keys to the communists’ victory. The policy of the government in power was so moderate that “the 1950 Agrarian Reform Law was in fact less radical than that of 1947” (Bramall, 95). Thus, the government basically left peasants alone once they abolished landlordism and feudal serfdom.
The government encouraged the proliferation of small-scale family farms, while in the Constitution the “state guides and helps individual peasants to increase production and encourages them, on the voluntary principle, to organize co-operation in the fields of production, supply and marketing, and credit” (art. 8). In terms the law, the constitution had bourgeois jurisprudence. “The people's courts administer justice independently and are subject only to the law” (art. 78) makes the party subservient to the rule of law, and “all citizens of the People's Republic of China are equal before the law” (art. 85) portrays the essentially bourgeois conception of citizenship.
Thus while Chinese law developed in a similar manner to the Soviet experience at relative stages of development, by 1958 the experiences rapidly diverged. This came from a few factors. Objectively, the moderate policies in agriculture were no longer sustainable: “at root, the problem here was that China had reached its arable frontier…the scope for traditional agricultural growth was thus almost at an end.” (Bramall, 111) While the economy was doing well under the moderate approach, “the plain facts of the matter were that the growth rate achieved between 1949 and 1955 was not fast enough either to bring about a big increase in living standards or to ensure military security.” (Bramall, 119) Similar to the Soviet response to the failure of the German Revolution in 1919 and the threat of fascism in 1933, China was forced into a defensive position. The revolutionary idealism of the Chinese revolution, in which it appeared that China would be unified, Korea and Vietnam would become communist allies, and the spread of communism to the whole of Eastern Europe, created a new Communist world that seemed unstoppable. By 1958, China had been unable to unify the country and America had promised to defend Taiwan. The Korean revolution had been stopped at the 38th parallel and America had occupied South Korea. The French had left Vietnam, only to be replaced by the Americans in South Vietnam. The European revolutions had been stopped in Greece, and the American Marshall plan appeared to have saved the capitalist regimes of Western Europe from their own communist revolutions. Most significantly, Stalin had died, replaced by Khrushchev who, in Mao’s eyes, was restoring Capitalism. Khrushchev had denounced Stalin and had begun to liberalize the economy and the political realm. For Mao, not only was this ‘revisionism’ a betrayal of Marxism, it was a direct military threat to China which shared a border with the USSR. The restoration of capitalism, following Lenin’s classical analysis, implied imperialism and aggression from the new ‘social-imperialist’ Soviet regime.
Thus, in 1958 the government ended the moderate agricultural policies of the previous era and replaced them with ‘The Great Leap Forward’, which in essence was “improving rural performance by means of collectivization…in order to exploit economies of scale and to provide an institutional framework within which mass mobilization of labour for infrastructural projects could take place.” (Bramall, 119) Thus, despite the different histories and class base of the Soviet communists and the Chinese communists, objective conditions necessitated forced collectivization. The results were similar in both cases, with a massive human cost, political repression, and rapid transformation of the countryside. The legal response was the same as the Soviet one: increased democracy, localization of justice, and an attempt to transform law into a socialist form. Mao called this the ‘Anti-Rightist Campaign’ to purge right wing elements (as the regime defined them) who resisted collectivization, right wing remnants of the pre-communist era, and bureaucracy that had been forming within the party or had joined the party without proper ideological commitment to socialism. In the realm of the law, this took the form of “calls for the rule of law and questions about delays in legislation were now evidence of "rightism". The draft criminal code, according to reports, had been discussed by the Standing Committee of the National People's Congress on 28 June 1957 and was to have been distributed to delegates of the Congress. The civil code, according to reports, was almost ready at the same time. No more was heard of either. Instead, between September and December 1957, a significant proportion of China's most prominent jurists, including the President of the Criminal Division of the Supreme People's Court, Jia Qian, and three other members of that Court, four members of the Standing Committee of the Congress, high officials of government legal bureaux, the Ministry of Justice, the Procuracy and local judicial departments, as well as leading professors and members of research institutes, were denounced as rightists with reactionary and antisocialist views. Rightist cadres were removed from their posts in a purge that seriously affected judicial work at all levels and replaced the products of law schools with demobilized military personnel and public security officials.” (Tay, 570) Besides this, “non-judicial bodies many kinds of cases, both civil and criminal, and gave the public security forces renewed power to impose serious sanctions, such as "rehabilitation" through labour and work under "social" control. The reconstituted judicial cadres were put through an intense course of ideological training, criticism and self-criticism. This was reinforced, for them and for the population generally, by a chorus in the press emphasizing the commanding position of the Party in the judicial, as in all other, areas.” (Tay, 571) Party as a result of the influence of Soviet law on China and the resulting turn against Soviet revisionism, “the Maoist conception of the Leap diverged from Stalin’s Second Five Year Plan” because of “the emphasis on the role of ideology” while “the importance of material incentives within the new communes was downplayed.” (Bramall, 119) Thus the great divergence between the Soviet communist path and the Chinese communist path was in the role of ideology and thus law, the object of our investigation. Thus for Mao, “the idea that superstructural transformation is a decisive causal factor in bringing about social change is Mao’s major theoretical contribution to the development of Marxist thought, as well as his principal contribution to Marxian practice.” (Bramall, 149)
Clearly, this is the moment when a unique ‘Maoist’ jurisprudence can be said to have begun, culminating in the Cultural Revolution of 1966-1976. More useful for our purposes, this is the moment when the structural conditions allowed a socialist jurisprudence to develop as it had in the Soviet Union in 1936, and yet flowing from Mao’s aforementioned break with previous Marxist practice was the Cultural Revolution as something radically new, given constitutional form in the Constitution of 1975.
In order to understand the Constitution of the Cultural Revolution, we have to understand the real conditions of law during this period. The Cultural Revolution began in 1966 with the ‘May 16th notification’, a notification within a central document of the Politburo, directly supervised by Mao, which outlined the reasons for a cultural revolution and its goals: “the struggle against the revisionist line” as “an issue of prime importance having a vital bearing on the destiny and future of our party and state, on the future complexion of our party and state, and on the world revolution” (Macfarquhar and Schoenhals, 40) By the time of its publication in the People’s Daily the following year, it “was described as having ‘sounded the Great Proletarian Cultural Revolutionary Movement to advance’ and marked the ‘mighty beginning’ of the movement.” (Macfarquhar and Schoenhals, 41). While the GPCR began within the party, it soon spread out to the masses. On May 25th, a ‘big-character poster’ was put up on public display at Peking University by a philosophy lecturer Nie Yuanzi and other leftists. It attacked the school leadership as ‘revisionists’, ‘sinister’, afraid of “total mobilization of the masses”, and called for their dismissal. Not only did “within a few hours of the posters going up, ‘hundreds if not thousands more revolutionary big-character posters appeared,” (Macfarquhar and Schoenhals, 57) but “after the publication of Nie Yuanzi’s poster, all schools in the capital suspended classes.” (Macfarquhar and Schoenhals, 59) What had started as a government action had spread to the universities and now spread to the masses. On June 3rd, the Beijing Party Committee was dismissed. On June 13th, “the CCP center and State Council issued a decision to suspend classes ‘temporarily’ in universities and schools nationwide.” (Macfarquhar and Schoenhals, 60) Buy August 8th, the CPP Central Committee adopted the ’16 points,’ a document which made explicit the Cultural Revolution: “the main target of the present movement is those within the party who are in authority and are taking the capitalist road.” (Macfarquhar and Schoenhals, 93) And for the first time, a call for a new form of state was articulated. Not only was “something new and of great importance” being created, the masses should form “excellent new forms of organization whereby under the leadership of the Communist Party the masses are educating themselves” with the guidance of “Mao Zedong thought.” (CPCC, 1966) Whereas Stalin had shunned the cult of personality and failed to control the purges he had unleashed, Mao embraced it and gladly gave up control to the masses. Though as we shall see, even Mao became a target during the height of radicalism.
‘Red Guards,’ mass armed organizations increasingly took the law into their own hands as the party bureaucracy collapsed. On August 18th, “a million students and teachers were led into Tiananmen Square.” (Macfarquhar and Schoenhals, 107) “By November, when the last rallies were held, more than 200,000 people were coming on overcrowded trains to Beijing each day.” (Macfarquhar and Schoenhals, 109) The peak of this mass mobilization and bureaucratic chaos peaked in the Shanghai ‘January Storm’, culminating in the creation of the Shanghai People’s Commune.
Clearly, the conditions of the Shanghai Commune were those of mass revolutionary politics but also mass confusion and political struggle. As in all revolutions, the political, legal, and economic structures were created ad hoc. Yet there is a discernable legal structure of the Commune. And just as Marx saw within the failure of the Paris Commune the birth of a new social form, the death of not only the Commune but the GPCR as a movement contained within it the seed of socialist jurisprudence, at last given concrete form. The ‘January Storm’ really begins on June 12, 1966. Wang Hongwen, the factory security chief of the Shanghai No. 17 textile mill, inspired by Nie Yuanzi and her colleagues’ wall poster put up a big-character poster with 6 other leftists entitled ‘See through the Make-ups of the Party Branch to Get the Truth Out’ in the factory (Hongsheng, 242). In an effort to control the situation, Zhang Hemin, the vice-secretary of the factory’s party branch, first attempted to follow and spy on Wang and his comrades, then broke into their office to disrupt the creation of other posters. (Hongsheng, 242). The Shanghai municipal administration, fearing it was losing control of the situation, first sent in a work team led by Yu Wei to restore order. This failed, as both Yu Wei sympathized with the rebels and the rebels themselves were emboldened by the “the People’s Daily editorial ‘Revolutionary Big-Character Posters Are Demon-Detectors To Unveil All Ghosts’ released on June 20th” (Hongsheng, 244). Finally, the Shanhai administration withdrew Yu Wei’s work team and sent in a “higher-level work team led by Shi Huizhen, a female veteran revolutionary and at that time the vice-chairperson of the Shanghai General Workers’ Union…which called for putting up big-character posters to disclose each other’s “grave bourgeois thoughts” among the ordinary workers” instead of targeted towards the party authorities. (Hongsheng, 245) Emboldened by the million strong Red Guard rally in Beijing to meet Mao, “Wang Hongwen and his comrades decided to organize Workers Red Guards among their factory’s militia.” (Hongsheng, 246) “The work team was very scared by this move and regarded it as a “counter-revolutionary power seizure… to counter this, the work team formed the official workers Red Guards.” (Hongsheng, 246) “To take the leadership of and justify their control over the ongoing CR, the work team zealously called for a “Paris Commune Style Election” at Shanghai No. 17 Textile Mill.” (Hongsheng, 247)
This history shows some essential qualities of the Shanghai Commune’s beginnings. Despite inspiration from Mao and the CCP, in practice this was a spontaneous, grassroots movement which the local authorities tried to control. In fact, the Shanghai Commune, which became so radical it eventually attacked the entire party as revisionist, began as a countercoup to retain party power. Finally, both left and right used the same language to attack each other, thus the meaning of ‘revisionism’, ‘counter-revolutionary’, ‘Mao Zedong thought’ were forged through class struggle.
Eventually, Wang Hongweng became the leader of the Worker’s Revolutionary Rebels General Headquarters in opposition to the Shanghai Party Committee. Factional struggle between the workers, the party bureaucrats, the students, the army, and the labor aristocracy (who formed the ‘Scarlet Guards’) continued until January 6th, when a gathering of 100,000 people in Shanghai People’s Square came to watch cadres, workers, and student representatives of the WGHQ publically denounce the municipal party committee. (Macfarquhar and Schoenhals, 165) With the public backing of Mao and Zhou Enlai, the rebels seized power and were formally acknowledged by Mao on January 16th. The Shanghai Commune was born, formally celebrated on January 27th to match the creation of the Paris Commune on March 27th, 1871. ((Macfarquhar and Schoenhals, 166)
Initially, the Shanghai Commune remained a site of struggle between different factions. While the rebels clearly had the upper hand, “ was constitutionally flawed because it excluded a good many conservative Scarlet Guards and almost all the old cadres who the rebels considered “capitalist roaders.” The promised universal direct elections never took place because of the threats that remained in place for the Commune’s short existence. Nevertheless, we can learn some very important things from what did happen.
Jiang Hongsheng describes the effect of workers seizing the factories for themselves: “When politics were in command, monetary incentives were not a big concern and workers took an active part in creative work. Workers volunteered to take on extra work and stay overtime without any demand for extra bonuses. Take the latchemen in the Glass Factory for example. After completing their own work in the shop, they enthusiastically helped other workshops. Wang Weitai, an apprentice, brimmed with vigor and more than doubled his workload every day from machining 26 to 64 machine bases, ensuring those in the assembly section could complete their task. The rigid division of labor regulated by the old bureaucrats and technocrats was shaken up as well. When there were no hands to take care of 800 scroll wheels, Wang Ying, a locksmith, changed his type of work and shouldered this heavy burden overtime, leaving his children at home unattended. Yan Jiazhong, a mechanical worker, fixed the long-broken pneumatic hammer on his own initiative, and so forth.” (Hongsheng, 300) Mao was explicit in what this meant: “Our way of developing production is sharply different from those of imperialists and modern revisionists. Number one, we don’t rely on coercion. Number two, we don't depend on material incentives. Instead, we depend on putting Mao Zedong thought in command, on political and ideological work, and on the revolutionization of people’s mentality. We put the revolution in the first place, and use revolution to command and drive production.” (Hongsheng, 299) This is a glimpse of Marx’s concept of ‘free labour’, which is “(1) it is of a social nature, (2.) it has a scientific character and at the same time is general work, i.e. if it ceases to be human effort as a definite, trained natural force, gives up its purely natural, primitive aspects and becomes the activity of a subject controlling all the forces of nature in the production process. “ (Marx, 505)
In the realm of politics, this process of free labor was essential. “In setting up the Shanghai Commune the original unit title of “department” (bu) from the old SPC was renamed “team” (zu) – which was said to be Mao’s idea. The original Department of Industry and Communications, for example, became the Industry and Communications Team, the Department of Organization became the Organization Team, and so forth.” (Hongsheng, 403) This was highly significant politically: “The seemingly trivial change of abandoning all the “chief” titles in the Shanghai Glass Factory was formal and symbolic, but what it revolutionized in practice went far beyond that. The 10 workers elected as “servants of the people” in the factory could be classified as working in three categories: production, the workers’ union and political life. In line with the principles of the Paris Commune, all of them were subject to be recalled at anytime if the masses were dissatisfied…After assuming their responsibilities, all the elected servants of the people decided not to hang around in offices, nor sit on sofas. Instead, they always carried their working tools. Having this position was like a part time job, and their main job being working on the shop-floor with the common workers. (Hongsheng, 298)
At the level of the law, three important changes took place. At the government level, in order to “break with the overlapping and bulk bureaucratic establishments of the old SPC, a mere 7 teams and one office (qi zu yi shi) were set up under the Provisional Committee of the Shanghai Commune. The Provisional Committee and a nucleus of different teams were operated under a system of collective committee membership (jiti weiyuan zhi)…The Provisional Committee preliminarily chose 19 representatives via negotiation: Zhang Chunqiao, Yao Wenyuan, three responsible persons from the three armed services stationed in Shanghai, three from the WGH, one peasant, one student, one from the Revolutionary Rebel Liaison Centre of Organizations of the Shanghai Municipal Party Committee, and one from each of the seven teams.” (Hongsheng, 403) This plan was never fully implemented but became important for the structure of the Shanghai RC, the successor to the Commune.
At the level of the law, “the informal process of dispute resolution enjoyed its heyday under Mao when the societal model of law overshadowed the jural model” (Hongsheng, 498) Not only were formal legal structures and formal lawyers abolished, but the concept of law itself changed from punishment to reform, usually through communal justice. While this has been famously pictured as public humiliation, in terms of jurisprudence this was a new concept. For the few criminals that could not be rehabilitated, “it was better to have them arrested by the masses themselves, not by the state organs of dictatorship. Mao called this principle the “dictatorship of the masses” (qunzhong zhuanzheng). He explicitly said that: “the dictatorship should be the dictatorship of the masses.” (Hongsheng, 496)
Finally, to enforce the law, people’s militias proliferated at the expense of formal police and the military bureaucracy. “On September 1, 1967, the Shanghai Headquarters of Wengong Wuwei (attacking with words and defending with weapons) was set up. This was the first rebel militia entity in Shanghai. Wang Hongwen even ordered two Shanghai factories to manufacture rifles for the rebel militia. Meanwhile, many heavy weapons from the army's supply were distributed to the workers’ militia. Until January 1968, 28 Shanghai factories set up contingents of wengong wuwei, with the total number reaching 7,900 fighters. In 1970, all Shanghai factories set up wengong wuwei teams, with the total number reaching 29,000 fighters. The deputy director of the Shanghai RC Wang Hongwen stipulated that the militia teams should be led by the old rebels and the positions of officers above battalion level should be given to the rebels.” (Hongsheng, 499) Thus at all three levels of the law, formal legal structures were replaced with ideology and the importance of embodying it; however, this was itself formalized in the law, most famously in the “three-in-one” combinations” of the Shanghai RC which had explicit quotas.
We can see that this new form of politics started at the proletarian level from the bottom up. Eventually, workplace democracy, which far surpassed the political democracy of the Commune, culminated in an ultra-left demand. A faction in the Commune issued the February 8th Circular Order, which “demanded the abolition of all appellatives of “zhang” (meaning directors), all hierarchical levels, and all the titles of administrative officials at various bureaus (ju), departments (bu), divisions (chu) and offices (ke). They even declared that “we don’t need any directors; all of us are equal.” “All power holders should be pushed aside as they are nothing great. We can shoulder their tasks.” (Hongsheng, 410)
Mao responded to this by reaffiriming the necessity of the party: “If everything were changed into communes, then what about the party? Where would we place the party? Among commune committee members are both party members and non-party members. Where would we place the party committee? There must be a party somehow! There must be a nucleus, no matter what we call it. Be it called the Communist party, or social democratic party, or Guomindang, or I-guan-dao , it must have a party. The commune must have a party, but can the commune replace the party?” (Hongsheng, 461) Attacking ultra-leftism and anarchism, the central government stepped in and decided the name of the Commune should be changed to the Shanghai Revolutionary Committee (Shanghai RC). As we have seen, for Badiou and Zizek this represents the end of the revolutionary break of the GPCR. However, “the Shanghai RC…maintained core features of a Commune style power organ.” Most importantly, “it legalized and instituted the mass movement.” (Hongsheng, 491) The government was set up in a three-in-one combination, in which revolutionary students, workers, and the army shared power. (Hongsheng, 229) Originally, the original teams of the Commune would remain and while “rebel leaders were appointed to be the head of all the teams…the operation of those teams were put on the shoulders of the common middle-lower ranking cadres who had rebelled against the old SPC and were experienced in administering the city. (Hongsheng, 492) Because of this resistance, the rebels (formalized in ‘mass organizations’) gained supreme legal power: “ assigned a quota (around 50%) for the mass organizations, insuring that the rebels would be a dominant force in the new power organ.” (Hongsheng, 492)
Further, Badiou and Zizek, as we stated previously, lack a proper historical understanding. Unlike the anarchistic dreams of the “Febuary 8th Circular Order, “there was, if any, only a tiny handful of rebels who, in proposing the formation of the Shanghai Commune, had vague ideas and intentions of demanding the abolition of the state and the party. Amid the storm of power seizure, nearly all Shanghai rebels focused their efforts on the local Shanghai affairs, not those of the whole state. Secondly, among the two million Shanghai workers, even if one million of them were demanding the direct communal organization of the society, there were still another one million taking different political positions, let alone numerous common Shanghai citizens.” (Hongsheng, 105) In reality, the Communist Party remained overwhelmingly popular among the citizens, and more importantly it was fidelity to the Party and Mao Zedong thought that allowed the Commune and Shanghai CR to develop as much as it did.
What does all of this history tell us? Two things: first, the mass organizations were a new legal form that would eventually evolve to take on all legal functions except one. This one was the advancement of socialism, which remained the task of the communist party. Second, the Shanghai CR required the law and the Communist Party to remain in power and continue the advance towards socialism. The most important legal form to emerge from the GPCR experience were the mass organizations, which were empowered in the Shanghai CR. Thus there is a direct line from the mass proletarian democracy of the Shanghai RC and the 1975 constitution. This is because the Shanghai CR was not a reaction against the Commune, rather it was the institutionalization of its ideals which culminated in the constitution as the highest legal form.
This is what the Maoists specifically wanted: “in fact, the Maoist leadership repeatedly stressed that the triple alliance, that is, the RC, was just a temporary political arrangement during the CR. It was by no means a fixed form of the new power organ. Among the three parties in the triple combination, the role of the army was transitional. When the new power organ began to fully function, the troops would withdraw from the civil power organ. In fact, after the Lin Biao Incident in 1971, the army representatives were pulled back to the barracks. As for the representatives of the old veteran cadres, they would eventually fade out from the triple combination due to the inevitable biological reasons – that is that they would get old and eventually die. In due time, the representatives of the old veteran cadres would be replaced by the common and younger Party representatives promoted from the rank-and-file people. At some point, with the withdrawing of the army from the triple combination, there would emerge a more stable power structure in which the representatives from the mass organizations and from the party compete and cooperate with each other…With the enhancement of the class consciousness of the representatives from the mass organizations, the differences in status between the Party members and the non-Party members from the mass organizations could be eventually narrowed, and the Party’s role in this kind of power structure could be progressively reduced.” (Hongsheng, 522)
Jiang Hongsheng’s conclusion is that “the history of the CR proved that the leftist mass organizations could competently fight against revisionism and bureaucracy in the Party and the state, substantially dislodge the rightist elements, and ardently rekindle and continue the revolution. Therefore, I surmise that the new working people’s power organ based on the alliance of a communist party and numerous mass organizations can be a more viable organizational form for a socialist society, which can be gradually transformed into communism” (Hongsheng, 523)
Let us make this clear. The history of the Shanghai Commune, the Shanghai CR, and the Cultural Revolution show for the first time a new form of law in the transition to communist society. The Commune structures: eliminating hierarchies, labor as a common task, informal over formal legality, direct democracy, directly arming the people, criminal justice as ideological rehabilitation, and the power of mass organizations lead to one conclusion. The tasks of society will become increasingly communal among a people who through revolutionary praxis see themselves as free, social beings. This includes the law, as democracy replaces juridicial structures. The history of the Shanghai CR shows the importance of formalization of this ideology through the Communist Party for the construction of socialism and the transition to communism. The direct democratic demands of the ultra-left were pre-mature and lacked popular support as we have seen. There was no guarantee that the people, given democratic power would use it to construct socialism, and in fact the history of the Commune shows that it was constructed as a reaction to democratic demands. Only through the ideological encouragement, through big-character posters, op-eds, decisions from the Central Committee and speeches from Mao himself were the rebels able to turn the Commune into the most democratic socialist form in history. Thus the role of the Communist party becomes ideological, specifically as an ideological pole for the construction of socialism and the advance to communism.
Did the 1975 constitution live up to this ideal? Explicitly so. The preamble makes clear that only “continued revolution under the dictatorship of the proletariat” can prevent revisionism and the restoration of capitalism. The role of ideology, which was only implicit in the Soviet Constitution as ‘socialist construction’, is made explicit: “Marxism-Leninism-Mao Tsetung Thought is the theoretical basis guiding the thinking of our nation” (art. 2). The subordination of the law to society is made clear: “All power in the People's Republic of China belongs to the people” (art. 3) This is given ideological content (and therefore repetition): “The mass line must be applied in procuratorial work and in trying cases” (art. 25) though it is limited to repetition through criminal justice. The ‘mass line’ terminology is not used but its content is present in the role of politicians: not only do politicians have to “maintain close ties with the masses and wholeheartedly serve the people,” but because consciousness is created through praxis, “cadres at all levels must participate in collective productive labour” (art. 11) The ‘collective individuality’ of these socialist citizens is implied: “unity of will and personal ease of mind and liveliness” (art. 13) characterize the masses. Finally, while pure law is not yet subordinate to socialism, all other activities are: “culture and education, literature and art, physical education, health work and scientific research work must all serve proletarian politics, serve the workers, peasants and soldiers, and be combined with productive labour.” (art. 12) The rest of the constitution is various tasks of the party, the army, bureaucracies, the role of nationalities within the nation and the international policy of the nation, various bourgeois rights, and finally the national capital, flag, and emblem.
Thus, this constitution, which to liberal jurisprudence appears as a monstrous lack of the rule of law because of its brevity, lack of enforcement mechanisms, and explicit ideology, is in fact not concise enough; it is only the first step towards a socialist constitution which has no bourgeois elements and is entirely socialist. Schmitt understood this in his criticism of socialist jurisprudence as too democratic, and we thus defend democracy against liberalism which demands ideological mystification between the law and the people, the necessity of democratic socialist praxis as a living dialectical process against the Schmittians who call for a secular theology whether this is the state of exception or the construction of discourse, the need for socialist jurisprudence against the postmodernists who deny the value of law as anything more than a moment of negotiation, and the need for worldwide revolution to shed the remaining national content of the constitution.
What then is socialist jurisprudence? What was hidden beneath the text becomes clear in the structure of the Shanghai experience: all legal forms become democratized among the people except one: the advancement towards socialism expressed through the Communist part. The essential part of the Soviet 1936 constitution (the subservience of law to socialism and the function of the communist party in enforcing this ideology on itself) is now made explicit in the 1975 constitution: the singular purpose of socialist jurisprudence is the advancement of socialism and its sovereignty derives from a dialectical repetition of socialism as progress. We now see that the minimalism of the 1975 constitution is not the abolition of law but it’s fulfillment as ‘pure law.’ By this I mean that law is progressively shed of its ideological mystification through formality and bureaucracy and becomes a singular ideological purpose. Law becomes a state of exception that is continually renewed, or what I will now call a process of exception. Just as Stalin did not go far enough in implementing Lenin’s ‘whole state of the proletariat’, Mao did not go far enough in the ‘ideologizing of the law’. A true socialist constitution would eventually become the only law of the world and would have three articles: 1) The goal of this nation is the construction of socialism to be replaced by communism. 2) The communist party is tasked with ensuring that this occurs. 3) All other functions are to be decided by the masses. The theoretical innovation of the Soviet Constitution becomes its sole defining feature as law. We have completed the task of Althusser, to separate law and politics, Lenin’s dream of a society in which legal functions are the entire web of social relations, and Pashukanis’s desire for public, private, and criminal law to combine into one universal execute-legislative-judicial body. In socialist jurisprudence, law becomes pure law and politics becomes the entire constitution of society. We call this moment communist jurisprudence.
If anyone is interested I can post more or just talk about my ideas. RedMaistre helped me come up with this idea so I owe it to the forum to be interesting at least. If you post interesting stuff I will post back. I'm just a lowly Masters Student though so be nice
RedMaistre posted:“What have the others conceded? That a host of somewhat muddled and purely democratic demands should figure in the programme, some of them being of a purely fashionable nature — for instance “legislation by the people” such as exists in Switzerland and does more harm than good, if it can be said to do anything at all. Administration by the people — that would at least be something.”
From a Letter of Engels to August Bebel (1875)
Of the many unnecessarily obscured elements of the Marxist heritage, few are more distorted than the concept of the “withering away of the state”. Both the friends and foes of Marx tend to interpret this as proposing the eventual extinction of state-form. The revolutionary interim of the dictatorship of the proletariat, it is acknowledged, will be a state, but it will be a state tasked with removing the conditions of its own existence. Marx, it is commonly assumed, agrees with Bakunin that the end point the revolutionary process tends towards is the moment in which man will be free from any fetters “that have been imposed upon him externally by any foreign will whatsoever, human or divine, collective or individual (God and the State)”, albeit through a more roundabout route than the latter would have considered acceptable. Starting from this premise, a strong contradiction is then felt by many between this radical anti-statist expectation and the political realities of the past century. Surveyed in this light, the doctrine of the withering away of the state takes on the appearance of at best a very distant hope with little immediate meaning, at worst a dangerous millennialist delusion. Either virtually the last 120 years of revolutionary politics are nihilistically declared a sinister travesty, we rule against Marx in favor of history, or else the opinions of Marxism’s founders on this matter should be taken as merely muddled utopian poetry hardly worth thinking of at all. However, looking to the writings of Marx and Engels, we find their position was clear enough, even if never adequately fleshed out, and does not fit with in with the improbably apocalyptic expectations projected upon them by all sides. What they point to is not the extinction of the state-form, but its transformation. Marx and Engels attacked the present day state not so much because it implied subordination, but because it remained trapped in the illusion of having an independent existence over and above that of society itself. This was because they distinguished between “authority”, which could be legitimate, and the classist coercive apparatus that is doomed to pass away. Despite certain understandable polemical ambiguities of expression, this lack of vulgar anti-statism can be seen from their engagement with ‘revisionist’ opponents on both the left and the right. Instead of prophesying the eventual triumph of anarchy, Marx and Engels looked forward to the future replacement of the presently existing ‘political’ state with an ‘administrative’ one
The Cul-de-Sac of the Political
Hegel had already, sympathetically, criticized the French Revolution in both The Phenomenology of the Spirit and The Philosophy of Right for seeking to abolish social iniquity through political fiat. The domination of society by the absolutist establishment of the ancien régime found both its grave and its fitting successor in the Republic of the Year II that, having founded itself on abstract principle of the general universal will, could ultimately only assert its existence through the interminable bloody negation of the Terror:
“In this its characteristically peculiar performance, absolute freedom becomes objective to itself, and self-consciousness finds out what this freedom is. In itself it is just this abstract self-consciousness, which destroys all distinction and all subsistence of distinction within itself (From The Phenomenology of Spirit).”
While never abandoning his belief in the historical necessity and greatness of the Revolution, Hegel drew from the defeat of Jacobinism the conclusion that political activity by itself was an insufficient basis for a modern community. The ‘rational’ state had to base itself on the substantial realities of a nation’s volkgeist, which includes its “religion, its laws, its ethical life, the state of its knowledge, its other particular aptitudes and the industry by which it satisfies its needs (italic mine).” Otherwise, social progress would be constantly shaken by the schizoid extremes of obscurantist reaction and revolutionary fanaticism, as the case of France seemed to so vividly illustrate. For him, famously (or infamously), this hoped for synthesis of rechtsstaat and volkgeist was in the process of being realized in the Prussia of his own day, where he saw (or hoped to see) the legacy of the Enlightenment taking firm root in the soil of Teutonic Protestant civilization. As it so happened, this dream would prove to be destined for the same place as the civic faith of Robespierre and the Spartan republic of Saint-Just.
Marx, from very early on, generalized Hegel’s critique of political thinking from a historical materialist perspective which went beyond the intentions, to put it mildly, of his predecessor. As Marx put it in an 1844 article entitled Critical Notes on the Article ‘The King of Prussia and Social Reform By a Prussian.’In it he portrays the weakness of the King Wihlem IV’s efforts to alleviate poverty being but one instance of the general ineffectiveness of all top-down efforts to deal with the realities of capitalism that stopped short of actually challenging the social structures of exploitation that the state itself was bound up with:
“The more powerful a state and hence the more political a nation, the less inclined it is to explain the general principle governing social ills and to seek out their causes by looking at the principle of the state – i.e., at the actual organization of society of which the state is the active, self-conscious and official expression. Political understanding is just political understanding because its thought does not transcend the limits of politics. The sharper and livelier it is, the more incapable is it of comprehending social problems. The classical period of political understanding is the French Revolution. Far from identifying the principle of the state as the source of social ills, the heroes of the French Revolution held social ills to be the source of political problems.”
On the one hand, this illusion, according to Marx, flows from an exaggerated belief in the power of the will:
“The principle of politics is the will. The more one-sided – i.e., the more prefect – political understanding is, the more completely it puts its faith in the omnipotence of the will the blinder it is towards the natural and spiritual limitations of the will, the more incapable it becomes of discovering the real source of the evils of society.”
This same theoretical blindness flows, in Marx’s view from a self-serving externalization of the causes of social ills that is found among all modern regimes regardless of their affiliation, from the oligarchy of Britain to the Revolutionary French republic Instead of the organization of society itself being the source of social misery, the laws of nature, the evils of human nature, or the counter-revolutionary opinions of the rich are identified as the obstinate impediments which frustrate rational social policy. This results, at “best”, in ultimately futile uses of coercion against persons, at worst in a retreat into mere moralism. “England punishes the poor, the Kings of Prussia exhorts the rich and the Convention beheads the proprietors,” but the problem of pauperism endures, nevertheless.
It should be noted that Marx’s argument here is not that the modern state is iniquitous because it is oppressively strong, but on the contrary because, out of an interested blindness to its own nature, it is too weak. By not making the wage-slavery of modern civil society the direct target of its action, it can only confront social problems in ad hoc manner.
Further, it should be that emphasized that though Marx mocked the illusions characteristic of politics, he did not intend to merely reject it. He certainly did not deny significance in the emancipatory significance of the French Revolution, in all of its phrases. Nor does his life-time of enthusiastic involvement in partisan agitation and organization indicate someone who has quietisically withdrawn into economic fatalism. What Marx does do, however, is relativize the domain of politics by pointing out its limits, and locating these limits as being bound up with it’s essence. This in turn sketches out the state with a paradoxical mission: The achievement of its aims can only be bought about, “contrary to nature”, by its own death:
“If the modern state desired to abolish the impotence of its administration, it would have to abolish contemporary private life. And to abolish private life, it would have to abolish itself, since it exists only as the antithesis of private life.”
However, as is often the case in 19th century German thought, “abolition” is proves not to be the same at all as annihilation.
“Imperious Authority”
While commenting in his notebooks on passages from Statism and Anarchism by Bakunin, Marx remarks in passing on his opponent’s notion that the existence of any state at all implies servitude:
“Bakunin: ‘Then there will be no government, no state, but if there will be a state, then there will also be people who are governed, and slaves.’
Marx: This simply means: if class rule has disappeared, and there will be no state in the present political sense.”
By qualifying ‘state’ here as meaning ‘in the present political sense’, Marx implies that there can be other types of states. What the defining feature of these states were, or could be, he does not say.
Fortunately, his life-long intellectual collaborator provided hints as to what he means here. In an 1872 article entitled On Authority, Engels counters anarchist charges of ‘authoritarianism.’ Importantly, not only does he not deny the accusation he proceeds to elevate ‘authority’ itself in a positive sense. Not only does the anarchist critique not make sense when measured against the realities of revolutionary praxis– “A revolution is certainly the most authoritarian thing there is”–it is also demonstrate a profound ignorance of the nature of modern economic organization. Industrialized agriculture and industry required a complex co-operation of multiple individuals, and the ‘first condition’ for such enterprises to function ‘is a dominant will that settles all subordinate questions.” The ‘will’ could be channeled by a single supervisor or by a committee, but “the necessity of authority, and of imperious authority at that,” was, for Engels, inescapable.
To those who said that a conceptual distinction should be be made between “authoritarian” structures and delegated positions that represented “a commission entrusted”, Engels had nothing but contempt:
“These gentlemen think that when they have changed the names of things they have changed the things themselves. This is how these profound thinkers mock at the whole world.”
Nevertheless, Engels does affirm here a belief in the inevitable death of the political state:
“All Socialists are agreed that the political state, and with it political authority, will disappear as a result of the coming social revolution, that is, that public functions will lose their political character and will be transformed into the simple administrative functions of watching over the true interests of society.”
This echoes the line from the famous passage in Anti-Durhing that speaks of a transition from the “government of persons” to “the administration of things.” This positive evaluation of administration represents an important development within the Marxist corpus. In the 1844 article discussed above, Marx defined administration simply as “the organizing agency of the state” and treated its failures as symptomatic of the failures of politics in general. Now it is forgiven its weakness, on the condition that it becomes the auxiliary to social processes instead tyrannizing over them.Thus, “administrative” authority is positively compared with “political” government. The latter formation is based on class interests that are passing away, not general needs. The former, by contrast denotes hierarchical functions of command and obedience that are not accidental passing feature of capitalist society, but an enduring feature of all conceivable societies:
“We have thus seen that, on the one hand, a certain authority, no matter how delegated, and, on the other hand, a certain subordination, are things which, independently of all social organization, are imposed upon us together with the material conditions under which we produce and make products circulate.”
Thus regarding the question he himself poses, “Will authority have disappeared , or will it only have changed its form?” Engels’ answer is clear.
Stuck between Bakunin and Lasselle
Why did Max and Engels not develop at length upon the evident distinction they wished to make between the capitalist political state and the coming socialist administrative state? In part, at least, their motivation was polemical. Marx and Engels’ positions were obscured by their efforts to deal with an array of opponents who were located to both the left and right of their own positions.
On the one hand, Marxian socialism needed to compete with rival revolutionary groups with a vocally anti-statist bent. To have directly repudiated that tendency would have risked alienating potential supporters, while speaking as if Marxist and anarchist goals coincided in the long run could assuage the suspicions of those who might otherwise have been tempted by more “spontaneous” and “direct” methods. This rhetorical strategy is on full display in The Alleged Splits in the International that written jointly by Marx and Engels in 1872:
“All socialists understand this by Anarchy: once the aim of the proletarian movement, the abolition of classes, has been attained, the state power which serves to keep the great productive majority under the yoke of an exploiting minority small in numbers, disappears and the governmental functions are transformed into simple administrative functions. Alliance turns the thing upside down.”
The word ‘anarchy’ is invoked and treated as the objective of “all socialists.”But the sense of the term is defined in a manner which omits the themes of radical individualism and perpetual insurrection which are normally associated with it.
On the other hand, Marx and Engels wished to distinguish themselves from socialists influenced by Federnand Lassalle, with his understanding of the state as an independent ethical power and his pursuit of a co-operative relationship with the conservative establishment of the German Empire. From Marx’s point of view, such thinking, in the field of praxis, at best led to making senseless demands to the Prussian monarchy that it voluntarily transform itself into a Switzerland; at worst, it encouraged a dishonest collaboration with a regime that Marx’s considered merely “a police-guarded military despotism.” On the theoretical level, the central error of this approach was that it believed the future of the state form could be fundamentally answered through a political means.As desirable as would be the spread of the principle of popular sovereignty, Marx believed that socialists should bear in mind that the overcoming of capitalism hinged on the alteration of economic base. The democratic revolution is distinct from the social revolution. The first, in Marx’s view, still moves within the limitations of bourgeois property rights, while only the latter points to a post-capitalist future whose exact shape can not drawn up before the fact. As Marx wrote in Critique of the Gotha Program:
“The question then arises: What transformation will the state undergo in communist society? In other words, what social functions will remain in existence there that are analogous to present state functions? This question can only be answered scientifically, and one does not get a flea-hop nearer to the problem by a thousand-fold combination of the word ‘people’ with the word 'state’.
The question is not whether the state will exist at all, but how the state will be changed by the alteration of society. What divides Marx from Lasselle’s disciples is thus not the latter’s belief in the state having function, but their alleged mystification of the sources that determine the nature of that function.
Red Legalism
In The Republic and The Laws Plato, the shape of hypothetical ‘ideal’ city states is formed around self-defense against the alien and the avoidance of civil war from within. To this end, he exhorted those aspiring to be just rulers to not allow themselves to be dominated by the demands of the ignorant masses, whom he likened to a “great beast” possessed of capricious and contradictory desires. Instead, he taught the necessity of a permanent divide between the initiated rulers and the people, with the former having to be on a constant state of martial vigilance against all possible points of civic contamination that would sow the seeds of disunity. If the polis was not to succumb to self-destruction, it would only be by a regime that would constantly repress the social interests of all its members. This same fixation with war has defined Western political philosophy ever since-particularly during the modem period, as the philosophers lost faith in both the Classical ideal of philosophical detachment. and the peace promised by the medieval ecclesia. The more ‘representative’ of society the state was portrayed as being, the more repressive power it required to enforce the claimed unity of government and people, and the more total in turn was the loyalty expected of the citizen. This line of thinking achieved its extravagant apogee in Hegel, with his praise of war as the cleansing storm that periodically disrupted the complacency of civil society and obligated all individuals to sacrifice their private interests to the higher collective personhood of the nation-state, in whose actions could be seen “the march of God in the world.”
What Marx and Engels helped developed, albeit in a fragmentary way, was a model of the state that would be no longer defined against the horizon of violence. The homely craft of receptivity replaces the political fantasy of an irresistible will. No longer claiming to re-“present” society in its true form, the state, robbed of its god-like status, becomes merely a minister to the needs of the multitude. This is a political vision closer to Chinese ‘Legalism’ (Fa-Chia) than to the worldview shared by most moderns all of persuasions:
“The ruler is like a mirror which merely reflects the light that comes to it, doing nothing, and yet because of its mere presence beauty and ugliness present themselves to view. He is like a scale which merely establishes equilibrium, itself doing nothing; yet the mere fact that it remains in balance causes lightness and heaviness to discover themselves. The ruler’s method is that of complete acquiescence. He merges his personal concerns with the public good, so that as an individual he does not act. He does not act, yet as a result of his non-action the world brings itself to the state of complete order (From Shenzi by Shen Buhai as translated and reconstructed by Harlee G. Creel).”
But while the Legalist ideal was limited by the fact that the Emperor’s rule was inescapably personal and dependent on the economic exploitation of his subjects, Marx’s administration of the future is conditioned on the modern realities of democratization and economic socialization. Authorities with no warrant except popular need can serve the functions of mirror and scale far better than sovereigns claiming to rule the earth by reason of their divine lineage and the ‘right’ of conquest.
From this perspective, the ‘withering away’ appears no longer as a straightforward death but as a victorious kenosis. Administration, allowing itself to be interpenetrated by all diffuses itself through everything that it touches. The sacrifice of its claim to be an independent power secures for the state in actuality its position at the essential center that it had previously could only express as a grandiose aspiration. The emptying out of its political content secures the realization of its vocation to become identical with the organization of society itself.
Far from implying a totalitarian greyness, however, the advance of the administrative state converges with the liberation of every particular’s possibilities:
“Let roosters herald the dawn and let cats watch for rats. When everything exercises its special qualification, the ruler will not have to do anything. (From Book II, Chapter VIII of the Han Feizi)”
With each finding in the state a space for becoming itself, the various spontaneous forces of order that are generated by all beings seeking their flourishing, instead facing each other as antagonists, gather together in a complementary unity.
If, as Carl Schmitt said, the foundational formula of the political state is Protego ergo Obligo, than that of the administrative state will be Pasceo ergo Obligo. Instead of loyalty being owed in exchange for protection against other human beings (in the name of securing specific class interests and/or the armed self-defense of the community) obligation will exist to the extant that the administrative apparatus secures the material existence of each and every one of society’s members-and no further.
Coda: Some Doubts, Some Hope
From the left it may be said that this vision is hardly what modern people mean by emancipation. If the job of administration is still done by human beings, than communism appears to be indeed, to paraphrase the old John Gardner saw, merely capitalist exploitation of man by man reversed. Why should people in the future not resent the division of labor between administration the administrated as an alienating imposition on their freedom any less than they now do the division of government and governed? This line of criticism, of course, treats exploitation and subordination as equivalent, which is certainly not the case in Marx’s system, where the latter term refers to the extraction of surplus value, not to any and all relations that involve the giving of orders. And as we have seen, Engels has provided several cogent arguments against those who would wish to make a vague crusade against ‘authority’ itself.
Perhaps more interesting are the objection that can be proposed from ‘the right’. It may be argued that this hypothetical post-political state is still too naively utopian. From the resurgence of populist xenophobia in America to the Syrian civil war, contemporary history continues to demonstrate that the objective conditions that reproduce the existence of the political state have not gone away, not withstanding the many shrill announcements of its imminent demise. Why this is so must be carefully reflected upon. Further, key to Marx and Engels’ confidence in the eventual substitution of the ‘government of persons’ with the ‘administration of things’ was the belief that capitalism, and the movement towards socialism, would tend to eliminate, not multiply, differences among human beings, leaving the state with only purely economic questions to attend to. However, the past century of wars, revolutions, and counter-revolutions has shown, the ‘globalization’ and homogenization of the means of production has been accompanied by the proliferation of heterogeneity. New social differences have been created, while old ones have been given new life. At the same time, civic and political democracy, instead of creating a host of liberated Freubachian individuals happy to be joined in a recovered species being, results instead in a seemingly endless multiplication of divided, unhappy subjectivities—the predictable products of highly compartmentalized societies in a constant state of conflict over incommensurable values. Instead of labor becoming “not only a means of life but life’s prime want”, the poiesis of identity-expression has been democratized in all directions, leading to complicated social games of recognition that resist being assimilated into a unitary culture, ‘proletarian’ or otherwise.
However, this persistence of heterogeneity among human beings does not necessarily mean that we are doomed to resort again and again to a re- politicizated state apparatus. If modernity has given us planetary total wars that repeatedly threaten to exceed all attempts to contain them, it has at the same time expanded the scope of tolerance and the possibilities for cultural intermingling based upon formal equality instead of colonial condescension.The more the general conditions of peace and prosperity are secured, the more the masses can meld, and separate, among themselves as they will.
As Mao said:
“The only way to settle questions of an ideological nature or controversial issues among the people is by the democratic method, the method of discussion, criticism, persuasion and education, and not by the method of coercion or repression.(From On the Correct Handling of Contradictions Among the People)
Instead of top-down instruction by a single pedagogue, the work of administrating people could become the work of all, not in the sense of a universal clerkdom, but in the sense of each person becoming, in the Socratic sense, the midwife to the soul of the other. That process that has been called variously Paideia, Bildung, and Metanoia would unfold freely, liberated from the taint of both class privilege and the bullying of the police. Any and all non-economic, non-technocratic authority of persons over persons would be the product not of bit and bridle but the moral magic exercised by knowledge and character.
This is speculation that oversteps the present by a wide margin, not a set prescriptions by which one could impose by some private decree on any actually existing society. As was said before, the social realities that perpetuate the political state have not gone away. And history has repeatedly shown that unity is the precondition for division, and that power must be first concentrated before it can be relaxed. Communicative action cannot create the conditions of its own existence. However, by bearing always in mind the superiority of persuasion to coercion, and that government exists for society, not society for government, we may be preserved from forgetting the “natural and spiritual limitations of the will.” Or, since we perhaps cannot but be caught up again and again in the frenzy of political voluntarism, we may at least learn not to be seduced into mistaking its tyranny for truth.
What's the substantial thesis being put forward here? What implications for local Marxist groups does this have? is it cloud gazing or applicable
Some thoughts/ questions:
1. When you say Law becomes a state of exception that is continually renewed, or what I will now call a process of exception
The state of exception, to speak in Schmitt's catagories, is an extra-legal space that the sovereign power, whoever or whatever it is, first declares than uses as an opening to secure the condition for a normal legal order. The period of exception is defined by what it is not, by the conditions of (more or less) functional legality that precede and follows it. If the law become, as you say, identical with perpetual state of the exception, both would cease to exist at all. How is this different from a merely anarchist abolition of the law as such, a resolution of two into one instead of the creation of a new synthesis?
2. Wouldn't the attempt by said socialist state to apply the three articles you speak of require the elaboration in the form of statutes, court decisions, etc.?
3. Doesn't the transience of extraordinary phases politicization like the Cultural Revolution (but also the Paris Commune, the Second Republic of 1848 the Revolutionary Year II) suggest that they can't be looked upon as permanent alternative to legality? That in fact, in the larger sweep of history, their function is always to clear the way for Thermidorian/Bonapartist periods of consolidation, not the construction of positive social alternative in their own right?
4. You say: "The ‘collective individuality’ of these socialist citizens is implied: “unity of will and personal ease of mind and liveliness” (art. 13) characterize the masses."
But what the 1975 constitution actually says is:
"The state shall ensure to the masses the right to use these forms to create a political situation in which there are both centralism and democracy, both discipline and freedom, both unity of will and personal ease of mind and liveliness, and so help consolidate the leadership of the Communist Party of China over the state and consolidate the dictatorship of the proletariat."
'Unity of will' is not a presently existing characteristic of the masses but a political aspiration of the state.
5. Is the unity of the people that is to come that of a 'simple' unity or that of a differentiated totality? If the latter, with the (non-antagonistic, non-political) contradictions 'among the people' that implies, wouldn't that entail the continued need for an authority providing 'third party' mediation of the conflicting interests between persons?
5. What do you think of Pashukanis recantation of the notion of the withering away of the law in the 1936 piece State and Law under Socialism?
The theoretical position which initiated this anti-Marxist confusion was the concept of law exclusively as a form of commodity exchange. The relationship between commodity owners was asserted to be the real and specific content of all law. It is clear that the basic class content of every system of law – which consists in the ownership of the means of production – was consequently relegated to the background. Law was deduced directly from commodity exchange according to value; the role of the class state was therefore ignored, protecting the system of ownership corresponding to the interests of the ruling class. The essence should be: which class holds state power?
The great Socialist October Revolution attacked capitalist private property and instituted a new socialist system of law. The main thing in the Soviet concept of law is its socialist essence as the law of the proletarian state. After the victory of socialism and the liquidation of the pluralist structure of the economy, law did not begin to wither away. Rather, this was the period when the content of Soviet socialist law – both in the town and country – mirrored uniform socialist relationships of production.
The theory of the “bourgeois nature” of all law persistently conflated such different things as the co-existence of the private entrepreneur and the economic accountability of socialist enterprises, capitalist exchange and exchange by co-operatives and agencies of the proletarian state, the equivalent exchange of commodities according to value and the socialist principle of distribution according to labour.
In this theory, socialism was essentially contrasted to exchange, and economic accountability with control by the rouble. With respect to the withering away of exchange and money, and the transition to direct commodity exchange, “leftist” pseudo-theories are in the same logical category as theories which stress the “withering away of law” and the 'disappearance of the legal superstructure'....
In our works on economic law – particularly in Vol.1 of A Course on Soviet Economic Law, there was almost no room for the working person, for man, because everything was absorbed by the problem of the relationship between economic units. Questions of civil law were almost absent.
This was wrong of course. The problem of personal and property rights – and of their protection – is an immense theoretical and practical task."
TL; DR: Since ' exchange' is not the opposite of socialism, facilitating commodity exchange is not the "real" content of the law that is negated with the movement out of capitalism. What actually determines the character of the law is the particular relations between human beings, which varies from society to society. Because of this, elaboration upon civic law-the realm of what Pashukanis calls ''personal and property rights'-would key be to any would be socialist society.
thirdplace posted:So w/r/t the powerful, do you see popular pressure in the political system simply replacing attempts at apply equal protection, or do you see popular pressure being channeled through the judicial system?
I second this question.
What's the substantial thesis being put forward here? What implications for local Marxist groups does this have? is it cloud gazing or applicable
Non, je ne regrette rien
Edited by Gibbonstrength ()
Gibbonstrength posted:What's the substantial thesis being put forward here? What implications for local Marxist groups does this have? is it cloud gazing or applicable
Non, je ne regrette rien
Auguste a tout appris, et veut tout oublier
RedMaistre posted:BHPN: Thank for sharing your thoughtful post on the possible lessons of the GPCR for a hypothetical socialist jurisprudence. Would love to hear more about what you have been learning about on the issue.
Some thoughts/ questions:
1. When you say Law becomes a state of exception that is continually renewed, or what I will now call a process of exception
The state of exception, to speak in Schmitt's catagories, is an extra-legal space that the sovereign power, whoever or whatever it is, first declares than uses as an opening to secure the condition for a normal legal order. The period of exception is defined by what it is not, by the conditions of (more or less) functional legality that precede and follows it. If the law become, as you say, identical with perpetual state of the exception, both would cease to exist at all. How is this different from a merely anarchist abolition of the law as such, a resolution of two into one instead of the creation of a new synthesis?
2. Wouldn't the attempt by said socialist state to apply the three articles you speak of require the elaboration in the form of statutes, court decisions, etc.?
3. Doesn't the transience of extraordinary phases politicization like the Cultural Revolution (but also the Paris Commune, the Second Republic of 1848 the Revolutionary Year II) suggest that they can't be looked upon as permanent alternative to legality? That in fact, in the larger sweep of history, their function is always to clear the way for Thermidorian/Bonapartist periods of consolidation, not the construction of positive social alternative in their own right?
4. You say: "The ‘collective individuality’ of these socialist citizens is implied: “unity of will and personal ease of mind and liveliness” (art. 13) characterize the masses."
But what the 1975 constitution actually says is:
"The state shall ensure to the masses the right to use these forms to create a political situation in which there are both centralism and democracy, both discipline and freedom, both unity of will and personal ease of mind and liveliness, and so help consolidate the leadership of the Communist Party of China over the state and consolidate the dictatorship of the proletariat."
'Unity of will' is not a presently existing characteristic of the masses but a political aspiration of the state.
5. Is the unity of the people that is to come that of a 'simple' unity or that of a differentiated totality? If the latter, with the (non-antagonistic, non-political) contradictions 'among the people' that implies, wouldn't that entail the continued need for an authority providing 'third party' mediation of the conflicting interests between persons?
5. What do you think of Pashukanis recantation of the notion of the withering away of the law in the 1936 piece State and Law under Socialism?
The theoretical position which initiated this anti-Marxist confusion was the concept of law exclusively as a form of commodity exchange. The relationship between commodity owners was asserted to be the real and specific content of all law. It is clear that the basic class content of every system of law – which consists in the ownership of the means of production – was consequently relegated to the background. Law was deduced directly from commodity exchange according to value; the role of the class state was therefore ignored, protecting the system of ownership corresponding to the interests of the ruling class. The essence should be: which class holds state power?
The great Socialist October Revolution attacked capitalist private property and instituted a new socialist system of law. The main thing in the Soviet concept of law is its socialist essence as the law of the proletarian state. After the victory of socialism and the liquidation of the pluralist structure of the economy, law did not begin to wither away. Rather, this was the period when the content of Soviet socialist law – both in the town and country – mirrored uniform socialist relationships of production.
The theory of the “bourgeois nature” of all law persistently conflated such different things as the co-existence of the private entrepreneur and the economic accountability of socialist enterprises, capitalist exchange and exchange by co-operatives and agencies of the proletarian state, the equivalent exchange of commodities according to value and the socialist principle of distribution according to labour.
In this theory, socialism was essentially contrasted to exchange, and economic accountability with control by the rouble. With respect to the withering away of exchange and money, and the transition to direct commodity exchange, “leftist” pseudo-theories are in the same logical category as theories which stress the “withering away of law” and the 'disappearance of the legal superstructure'....
In our works on economic law – particularly in Vol.1 of A Course on Soviet Economic Law, there was almost no room for the working person, for man, because everything was absorbed by the problem of the relationship between economic units. Questions of civil law were almost absent.
This was wrong of course. The problem of personal and property rights – and of their protection – is an immense theoretical and practical task."
TL; DR: Since ' exchange' is not the opposite of socialism, facilitating commodity exchange is not the "real" content of the law that is negated with the movement out of capitalism. What actually determines the character of the law is the particular relations between human beings, which varies from society to society. Because of this, elaboration upon civic law-the realm of what Pashukanis calls ''personal and property rights'-would key be to any would be socialist society.
Good questions. Still thinking about them but here are some thoughts.
1. Schmitt's 'state of exception' is really Nietzsche's:
from the notion of law as a total ordering of life is found; and also the law as the force that demarcates, that hides a fear of the ‘foreign, strange, uncanny, outlandish. Thus, law is defined by the separation it allows between an ‘us’ and a ‘them’-a foreigner that must be resisted -The Will to Power
In terms of 'ontological extremism' all of the followers of Nietzsche (Schmitt, Foucault, Heidegger, Agamben, Deleuze) are the same:
the structure of Schmitt’s ontological concept of sovereignty is strictly analogous to Agamben’s notion of potentiality: as a foundational transgression that remains inscribed in the existence of the diagram as its constitutive outside, sovereignty is nothing other than the potential for order not to be, its being capable of its own impotentiality. -Foucault, Freedom and Sovereignty
Basically, this concept of the law, despite Schmitt's authoritarian attitude, is the opposite. Because law is determined at a ontological moment in which 'pure law' exists, everything past this is ideological mystification (or as Schmitt would say not political). I too am trying to come up with a pure law and so am trying to separate a dialectical concept as a radical alternative.
So when you describe what I said as anarchism, you're almost right. The Schmittian notion is the anarchist notion that only through transgression and imperfect communication between justice and its practice is a moment of freedom possible:
from the Bolshevik Revolution to the contemporary American crusade for ‘freedom’ in the Middle East we observe the dire consequences of taking upon oneself the honorable duty of liberating others. Liberation from the outside is impossible not only because freedom is an experience that cannot be instituted through declaration or legislation but also because this experience requires a re-appropriation of sovereignty…To liberate is to master; thus, the only being that can be genuinely liberated without inviting a lethal contradiction is one’s own. -Foucault, Freedom, and Sovereignty
Deleuze applied this to jurisprudence:
to free law from Law, then, requires that law become devoted to the ‘free and savage’ creation of non-decomposable, non-transposable principles extracted from singular cases, remaining always within the strict limits of the case or singularity -Deleuze and Law
The case I'm trying to make is that this concept relies on a moment whether it is Schmitt's original violence (and Benjamin's) or the infinite moments of signification of Derrida and Deleuze. The socialist task is to make this dialectical, to turn it into a process rather than a moment. I feel this is close to Badiou's
that true points exist in one’s seemingly point-less pre-eventual world and that what one selects as promising true points are really true. -Badiou, Zizek, and Political Transformations
What socialist law requires is not a pure law that imposes itself on the community but the community of the masses creating pure law in a process of continual revolution. If the 'state of exception' comes then the law is abolished as you point out. However if we conceive of this as a process instead of a moment we can simultaneously have a law that only functions as the 'socialist process' and yet we fully believe in as law. To quote Althusser, the abolition of law 'never comes'. I do differentiate between the idealism of Badiou and the materialism of Althusser and am obviously interested in the latter.
2. I would differentiate between 'the law' and 'administration' like Pashukanis. Of course there would be a whole social apparatus that the masses create, many of them impossible to anticipate. However these are not really 'law' because they are not ideological, simply the regulation of life in a democratic community. Of course, this is what Lenin means when he says
all become “bureaucrats” for a time, and no one, therefore, can become a bureaucrat
but applied to judicial functions. This doesn't answer Pashukanis question, which he himself recognized, as to 'the law' under a new mode of production which will have "operations of law which would be purely proper to…socialism or communism wouldn’t consider the legal subject as the sole legal horizon would appear scandalous to the eyes of a bourgeois lawyer -Althusser and Law
3. Well this is Badiou and Zizek's position basically.
taught us that the politics of emancipation can no longer work under the paradigm of revolution, nor remain prisoner to the party-form. Symmetrically, it cannot be inscribed in the parliamentary and electoral apparatus -Logic of Worlds
I'm trying to recover the Shanghai RC to find a legal form beyond the ultra-leftism of the Shanghai Commune and the Wuhan Uprising, mostly because Badiou's position is absurd to anyone not obsessed with May '68 as an event.
4. Good correction.
5. You're correct, this is a differentiated totality which requires the communist party. The ultra-left error is to assume that the people are naturally socialist if you just give them absolute freedom. As Mao said about the fetishization of universal suffrage
The Paris Commune, — did we not all say that to institute a Paris Commune is to institute a new political power? The Paris Commune was founded in 1871, almost 96 years ago. If the Paris Commune had not failed, but had been successful, then in my opinion, it would have become by now a bourgeois commune. This is because it was impossible for the French bourgeoisie to allow France’s working class to have so much political power. That is the case of the Paris Commune -The Paris Commune in Shanghai:the Masses, the State, and Dynamics of “Continuous Revolution”
6. I haven't incorporated it into my analysis directly but one of my major reasons for this research was to disprove the trot slur that Pashukanis was forced by 'Stalinism' to recant his previous analysis and that it can be disregarded out of hand as a result.
Edited by babyhueypnewton ()
