State and law in Marx and Engels – an introduction

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By ALYSSON LEANDRO MASCARO*

Excerpt from the recently released book “Engels free course: life and work”

While they are themes not specifically systematized in their texts, law and the State are central elements in the work of Karl Marx and Friedrich Engels. Throughout the trajectory of Marx's theoretical production, law is a present subject, from his youth, during his legal training, to his greatest work, The capital, in which the problem of the form of legal subjectivity emerges.

The same thing happens with the theme of the State: Marx deals with it in his youth engagement and, in maturity, reaches critical science on the state political form. With Engels, to the path of works in common with Marx, there was added, at the end of his life, a monument to the problem of the State and another to that of law: The origin of the family, private property and the state e legal socialism.

Marx has been confronted with law since he was young, when he sought to clarify his legal training in texts such as Critique of Hegel's Philosophy of Right. In that same period of youth, articles such as “Debates on the law regarding the theft of wood” and On the Jewish Question also touch on legal issues. But if in that period and, in particular, in the Critique of Hegel's Philosophy of Right, this confrontation takes place in the negative, showing the limits, contradictions and errors of Hegelian legal thought and the bourgeois idealism of his time, in the german ideology, then, Marx goes a step further: he points to the historical materiality of law and its economic-productive determination.

By saying that commercial law did not come from the invention of the commercialist jurist, but from commerce, and by saying that law has no history of its own, he proposes, in a positive way, that legality is linked to the economic level. When it comes to The capital, Marx discovers the atom of capitalist sociability, the commodity, and from there infers that, since commodities are not exchanged by themselves in the markets, it is necessary to turn to those who exchange them, their bearers, the subjects of law. The form of legal subjectivity is revealed there: in capitalism, the bonds between exploiters and exploited are contractual, and the subjects, who are equivalent for this bond, become equal and free in order to unite for mercantile exchange, for the profit and exploitation.

Marx's entire life and work is intertwined with the themes of the state and politics. Himself Communist Manifesto is exemplary in that regard. However, Marx's unavoidable work on political affairs is The 18th Brumaire of Louis Bonaparte, which can even be considered the inaugurator of contemporary political science. In The 18th Brumaire of Louis Bonaparte, there is the discovery that the State is not neutral, nor is it immediately dependent on who manages it. In addition to the subjects who direct it, whether bourgeois or not, the state's political form is capitalist. In Marx's mature works, the theme of the State returns, both within a scientific problematic and in The capital, as well as in the practical political struggle, as in Critique of the Gotha Program. In The capital, the same discovery of determination by production, with merchandise being the atom of sociability, makes the State be thought of as a political form that sustains and guarantees its own production and circulation. In Critique of the Gotha Program, the insignia of socialism as overcoming private property and the exploitation of labor, demanding from each one according to his capacity and giving to each one according to his need, breaks with the left of his time and with the mere political administration of capitalist forms. It is not a matter of giving salary improvements, but of putting an end to salaried exploitation.

Engels played a decisive role not only in the common intellectual journey with Marx, but also, after his death, in the establishment of Marxist ideas, theses and horizons in a moment of ebb and struggle against revolutionary radicalism. If it is true that his thought is not a mere copy of Marx's, it is also true that, in many respects, he sought to cloud his own positions in order, in his own way – and often in a controversial way – to reinforce those he thought were the most correct readings. about Marx. In the final part of Engels' work, after Marx's death, what is possibly the best known work of Marxism on the subject of the State is published, The origin of the family, private property and the state.

In this work, Engels starts from the assumption that societies of exploitation – slavery, feudalism, capitalism – operate through the seizure of the means of production in the hands of a few against the majority, which, then, exploited, is repressed by the State. To this end, private apprehension also organizes family groups and patriarchy. A highly libertarian work, such a book, however, does not drink from Marx's conceptual rigor in The capital, which understands the state political form and the legal form as specific social relations of capitalism. For Engels, pre-capitalist political forms would keep a state core, just like the contemporary state; the ancient private apprehension is equated with private property, the latter specifically juridical and capitalist.

In a different sense, a book by Friedrich Engels written jointly with Karl Kautsky, legal socialism, represents a vigorous inflection towards a scientifically rigorous reading of law. In this work, Engels rebels against the reformist struggles that believed it was possible to reach socialism without the destruction of capitalist social forms, through the State and the law. Legal socialists are contrasted with Marxists, whose fight is against the forms of capital, not in favor of its better management.

Since then, with the axes set by Marx and Engels, there has been a history of class and social struggles around the world that affirms, denies, worsens or improves this referential framework on politics and law. Here, then, it is a matter of the history of Marxism and history in the face of Marxism. The persecution of the Marxist theses on the State and the law is varied: its pendulum passes through accusations of bloody and horrendous dictatorship of the proletariat to reach considerations of puerility due to the Marxist project of ending class exploitations, of decision-making equality in the field of policy and the abolition of legal repression. On the part of the Marxists themselves, the theoretical and practical mistakes and successes about the State and law are also multiple, and it is not appropriate to say that, historically, there has been a single position that was accepted in total within Marxist struggles and theories.

I propose that one read, within Marx's own thought, three exemplary axes of his works on the State, politics and law: such axes correspond, exactly and in sequence, to Marx's youth phase, to his first maturation and , in the end, to its full maturity as a scientific proposition. After the three stages of Marx's thought, another stage follows, that of the Engelsian balance sheet which, at least in legal socialism, is quite faithful to The capital, serving as a full extract to mirror the thinking of the mature Marx. At the end of all these axes of Marx's work and that of Engels, then Marxisms are opened. From there, another stage – vast and far from unison – of reflection on politics and law in capitalism is presented.

 

the young marx

Marx, when young and already precociously on the left, faced the law also because of his own legal studies. It can be said that his initial reflection, although already marked by a progressive nature and in favor of those excluded from society, is still hostage to the horizons of the traditional left. In a text from 1842 in which he turns to the question of the criminalization of the theft of firewood by the poor, “Debates on the law referring to the theft of wood”, published in the dispossessed, Marx takes the side of the poor and argues that it is a customary right to allow the dispossessed to collect firewood to keep warm and survive. This natural right, then, should continue to be respected, without criminal repression. This is a justification based on jusnaturalism arguments – respecting customs, tradition – which, although used here on the left, are philosophically the same ones that, nowadays, plead the family tradition against divorce or the fight against sexual and affective orientations called divergent, not customary, by the reactionaries. Young Marx's philosophy of law is already of the left; he is not yet a Marxist.

A Critique of Hegel's Philosophy of Right, from 1844, is one of the fundamental works of Marx's formative period. After the years as a student at the Faculty of Law, first in Bonn, then in Berlin, the young Marx goes over his legal training and the reigning Hegelianism in the German philosophical scene. Hegel's book Principles of the philosophy of law it represented a very original reading of the period in which Europe moved between the Old Regime and the new bourgeois order. The world of theological natural law and Enlightenment legal rationalism was being replaced by legal positivism. The State announced itself, for Hegel, as reason in itself and for itself.

Marx, commenting paragraph by paragraph on Hegel's own writings, but advancing against Hegelianism, announces in his text a critique of the State, at least in the manner in which the State itself presented itself in reality and in the Hegelian system. It is a critique of the domination of the State by the bourgeoisie, which reveals Marx's romantic and committed theoretical stance, on the left, but which, in fact, had not yet reached the formal and structural nature of the State in capitalism. In the same book, the criticism of law is made against the meaning of its concrete manifestations, but still not its form.

Months after the systematic commentary on Hegel's work, Marx himself writes a new text that will allow him to advance his theoretical understanding, already announcing the problem of politics beyond the very legal internality of the State. The introduction he wrote to his own Critique of Hegel's Philosophy of Right takes account of a specific historical subject, which starts to take shape as being the core of the possibility of social transformation: the working class. It is based on its political action – therefore, from the horizon of the capital's exploited – that the problem of the State is reconfigured. Thus, in this first phase, Marx announces the taking over of the State by the working class as the great critical horizon of politics.

 

After the german ideology

The discovery of the categorical tools that will allow the science of capitalist historicity and sociability begins with the work the german ideology, from 1845. Here, Marx distances himself from philosophical idealisms – typical of Germany that had not carried out a bourgeois revolution and remained in fanciful justifications of its peculiar character – and sets out to explore the terrain of historical and dialectical materialism. The law will be taken, then, as an exemplary element of such theoretical change. For Marx, legal institutes do not come from the mere voluntary creation of jurists. They come from concrete material relations, located at the economic level. It is commerce that engenders commercial law, not the knowledge or will of commercial lawyers. If Italy has historical primacy in the formulation of commercial law, even at the end of the Middle Ages, as in the creation of credit titles, this is due solely to the fact that in Italy, in this period, modern commerce emerged. Marx discovers and asserts, in a forceful and polemical way, in the german ideology, that law, like religion, has no history of its own. Its history is that of economic, productive relations.

If soon after the german ideology breaks out what is the most popular work of Marx and Engels, the Communist Manifesto, from 1848, in which the couplet of the international union of the working class for the seizure of power and the achievement of a communist revolution is raised, Marx's reflection on politics, however, will take a great leap with his book The 18th Brumaire of Louis Bonaparte, from 1852, a work also of his intermediate production, but already at full progress in his theoretical maturation. Here, Marx understands, in a very original way, the nature of the State in the reproduction of capitalist sociability. Contrary to what was exposed in his initial works, Marxian thought analyses, in The 18th Brumaire of Louis Bonaparte, the political structures that persist in capitalist reproduction, even when not directly controlled by the bourgeoisie. In a State whose liberal political arrangements, directly bourgeois, are not able to maintain the conditions for the reproduction of capital, the coup d'état promoted by Louis Bonaparte removes the bourgeoisie from the state administration to, precisely with that, resolve internal class disputes and , then, sustain the very march of bourgeois continuity.

In his book, Marx exposes that the State is not simply a neutral apparatus available for the domination of classes, molded from their control by them. The state is structurally capitalist, even if the classes that immediately control it are not. With this, there is a qualitative leap in Marxist theory in terms of politics: not class dominance, but the political form of the state is the horizon that demands combat on the part of socialists.

The book The 18th Brumaire of Louis Bonaparte, when analyzing the specific case of a coup d'état within an already bourgeois society, manages to understand how political relations are carried out under the determination of the economic relations of capital. Therefore, a coup is not a change in the political level that, just because of that, could also change the mode of production. Napoleon Bonaparte removes the bourgeoisie from political power so that then the bourgeois class fractions, which could not be resolved in the dispute for that very power, are politically reorganized in favor of the primacy of some of the fractions over the others. Beyond quantitative change and the struggle under and for political power, it is the discovery of a specifically state political form, necessarily capitalist, that allows a science about politics and its social relational materiality. Marx provides, here, the most decisive instruments for apprehending the internal dynamics of politics in capitalism, allowing one to understand the stabilities of reproduction under institutions, but also the blows and ruptures. Beyond administration and administrators and their classes and fractions, he discovers the state political form, inexorably capitalist.

 

The capital

The reflection on the State, politics and law will reach its peak in The capital, published in 1867. Not because this work is specifically dedicated to such matters – historically, one of the hypotheses in the dispute about what Marx's complete project for The capital it involves considering that he would dedicate one of the unwritten volumes entirely to the State. The capital it is the most important work on the State and the law insofar as it unveils, in the very logic of capital, the necessary and founding elements of its sociability and its reproduction. The commodity is its nucleus – based, in particular, on the universalization of salaried work as a commodity – which establishes a social totality based on the forms of value, legal subjectivity and the separation of politics from the agents of production. The State and the law find their structural social nature there. It is not just a question of looking for who controls them, nor is it a fight for eventual partial gains at their bases. State and law are, irremediably, manifestations of capital.

The central scientific importance of The capital. This is because the State and the law cannot be thought from within themselves. They have no history of their own, as Marx already pointed out in the german ideology, and, therefore, it is necessary to discover which scientific categories have their own history and are determinant, thereby explaining such determined social phenomena.

The discovery of value based on work, its forms and historical manifestations, and the nucleation of this entire process in merchandise, with accumulation as a general law, lead Marx to understand law as a central element of capitalist dynamics itself. Commodities do not exchange for themselves on the market. It is necessary that its bearers do so. Marx discovers that, in capitalism, the main commodity is the worker's work force, since it is the only one that allows the extraction of surplus value. When the submission of work to capital becomes complete, through not only the formal control of the worker and the means of production by the hands of the capitalist, but especially with the control over knowledge in production, making work a mere indistinct expenditure of energy and time, the real subsumption of labor to capital takes place. Salaried labor then becomes fully a commodity.

[...]

 

*Alysson Leandro Mascaro He is a professor at the Faculty of Law at USP. Author, among other books, of State and political form (Boitempo).

 

Reference


Alysson Leandro Mascaro (et al.). Free course Engels: life and work. São Paulo, Boitempo, 2021, 128 pages.

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