Krylenko on Law and State

N. V. Krylenko, Toward a Marxist Conception of Law and State. 1924


Original Source: Besedy o prave i gosudarstve (Moscow, 1924), pp. 3-16.

I think that, of all the ventures of bourgeois science to comprehend the meaning of social life and to give a scientific explanation of social phenomena, the ventures directed at explaining the phenomenon called law have been the most hopeless. Social life in general, that is, social relationships, have always been to bourgeois science a mystery which it cannot grasp. And comprehension of the true nature of the social relationships that go under the name of legal phenomena has been an absolutely insoluble task for bourgeois society. I t has been an insoluble task primarily because law-as we know it in its coming into being, in its development, and in its history-is, as it always has been, a definite system of ideas and prescriptions of custom and statutes (both written and unwritten) which are constantly changing along with the development of society. In order to know tile meaning of legal phenomena, in the broad sense of the term, bourgeois scientists would have to discover the reasons responsible for the constant change of legal phenomena, as well as the reasons why legal ideas are in a constant state of flux.

… But, when a bourgeois scientist raises the question concerning the source of those changes, he instantly answers that they originate “in the mind.” By giving such an answer-namely, that legal ideas, the system of law, and legal relationships originate in the mind-he commits the first and fundamental error, because in fact it is the other way around. Legal phenomena, like all other expressions of social relationships, do not originate in the mind,- on the contrary, they come to the mind from other sources. We shall see later how this takes place. The bourgeois scientist’s trouble consists in that, when confronted with the question of the genesis of the sources of law, he instantly commits the basic methodological error which prevents him from seeing that end meets end. To be sure, a bourgeois scientist is not capable of avoiding such an error; this we shall see soon.

Following the first erroneous answer that law originates fin the mind, he commits a second inescapable error. To be more specific, having asserted that law is a product of the mind, i.e., that it is a product of the ideological function of consciousness, he involuntarily poses the question: “Whose consciousness?” In answering this question he commits a second error. His answer is that it is the consciousness of the nation, of the people, or of brilliant individuals. His first error, namely, the formulation of the origin of legal phenomena as a result of the ideological function of the consciousness, leads to a second error, to an incorrect formulation of the question of to whom the consciousness belongs. The answers given to this question by pre-bourgeois theorists were even more primitive and naive. Thus, some contended that consciousness is a manifestation of the “natural law” or of the “lord God.”

All these various answers have one thing in common. They are based on the assumption that law is a product of the function of the brain, consciousness, and ideology, which are presumably not only separate but even independent of the immediate social, political, and economic conditions in which they and the law come into being, develop, and become active. This is a fundamental methodological error, an error that predetermines the answer to the question: “What is the law?”

Our main task, then, is to place the object of our study-that is, the law-in its real, kindred social setting, in which it came into being. However, prior to doing this, we intend to examine several bourgeois theories as examples of the fact that incorrectly posed questions lead to absolutely false answers. Furthermore, we intend to demonstrate why a bourgeois thinks incorrectly and why he cannot think differently.

The aforesaid should not be interpreted to mean that we reject fully all bourgeois works on law. Nothing is further from the truth. A few great thinkers of the bourgeois school of law have made a considerable contribution to the science of law. Some of them, as we shall see, approached quite closely the essence of the question but failed to solve it. In the process of revealing the nature of legal phenomena, we shall keep in mind the historical conditioning and inescapability of the fact that bourgeois jurists have not, and could not, furnish a correct definition of law. Or, to put it differently, we shall answer Kant’s question: “Why are jurists still searching for the definition of law?” In order to answer this question, we shall examine some bourgeois theories…

Professor Korkunov, the “reactionary free thinker,” as he has been characterized by Stuchka, defined law as a system of “the delimitation of interests.” We must admit that to a certain extent this definition is better than any other. But is it true that, in fact, law is the delimitation of interests? We would like to supplement this definition: law is the delimitation of interests from the viewpoint of the preservation of the ruling class’s interests. Our amplification offers a specific point of view which will illuminate quite a few confused questions. Without the amplification, Korkunov’s definition is worthless, for it instantly raises in our minds several questions: “What is the meaning of the delimitation of interests?” “From what point of view are the interests delimited?” “By whom and where are the interests delimited?” “In what direction are they delimited?” and “What methods are used in delimiting the interests?” Are the interests delimited from the point of view of “ultimate justice” or from the point of view of the ruling class? Reticence brings Korkunov’s definition to naught. Nevertheless, Korkunov noted correctly some aspects of legal relationships, namely, that all legal disputes involve conflicts of interests. He failed, though, to answer the questions: “What type of interests?” and “Whose interests?” Consequently, his definition, although it is one of the oldest and most closely approaching the essence of the problems, is incomplete.

A question arises in this context: “Is a bourgeois scientist capable of answering these questions …” One would assume that, proceeding with the definition of law as the delimitation of interests, he should be capable of answering the practical question: “From what point of view does the law delimitate interests?” That is, he should be capable of giving a true answer, namely, that law delimitates interests from the point of view of the interests of a given class: for example, in a bourgeois society, from the point of view of the bourgeois class. Or he should be capable of telling a lie: for example, that law delimitates interests from the point of view of the “interests of the state,” the social interests of the whole “people,” “higher interests,” “ultimate justice,” or anything else. One would assume that in the latter case he should be able to invent a fiction, a fetish, or a clever expression in order to slur over the essence of the matter. The fact is, however, that neither the bourgeois state nor bourgeois scientists are capable of telling the truth. This is not due to their unwillingness to tell the truth; it is due to the fact that as the representatives of the ruling class their minds fail even to conceive of such a formulation of the problem. They are thoroughly convinced that the delimitation of interests is done from the point of view of the interests of the people, ultimate justice, etc., etc. And this means that the principal defect of their formulation of the problem is to be sought in the absence of the class point of view. The class point of view was entirely inconceivable, for

Intellectualism in the 1920’s it would have revealed the class nature of the state in its very nakedness…

The next theory to be examined is that of Professor Petrazhitskii. In his opinion, law is an emotion, that is, a certain sensation peculiar to each man. When a man says “This is mine,” he expresses his sensation. There are two types of sensations … First, a legal sensation, which finds its expression in a binding, coercive norm, statute, or custom; second, a moral sensation, which is not expressed in coercive norms.

We need not examine Petrazhitskii’s theory in detail. The gist of this theory is that the source of law is transferred from a pure intellectual sphere into a psychological sphere. Man no longer “invents” the legal system by means of his “mind.” The source of law is now the emotional depth of human perceptions: man’s “ego,” with its inner sensations and emotions. To be sure, however, Petrazhitskii has failed to raise the crucial question: “What is the source of human emotions?” We are told that legal norms are legal emotions, that legal norms are rooted in the depth of the human psyche, but we do not know what the source of the latter is. Petrazhitskii did not raise the question, because it leads to economic materialism. According to the latter, only class psychology exists; everything is determined by class interests and by the class struggle … A bourgeois scientist cannot raise the question, because he would have to admit that legal emotions are derivative from the interests of a given social class; that these interests vary from class to class; that the variety of interests leads to a struggle; and that the dominant system of legal relationships has a class character because it always constitutes an objective reflection of the interests of the dominant class, either in writing or in consciousness, The bourgeois scientist obviously cannot afford to do this, for it would be tantamount to committing public suicide.

The next problem that we intend to examine is the definition of law offered by a German scientist, Jellinek. If I recall correctly, Jellinek asserts that law is an expression of the “ethical minimum, reflected in a written form, at a given time.” Like others, Jellinek has failed to raise the essential questions: “Is there only one ethic?” “Are ethical views always the same?” We know for sure that ethical ideas are not immutable, that, at any time, two diametrically opposed ethical views on the same subject can exist. But a bourgeois scientist cannot admit this, because this would be tantamount to undermining the very basis of the bourgeois system. The following example may serve as an illustration of our view. The peasants have seized the land from the landlords. The question arises: “Did they commit an ethical or an unethical act?” Naturally, any peasant will answer that, indeed, it was an ethical act. On the other hand, the landlord will say that this act has nothing to do with ethics, that it was an act of robbery. To be sure, the landlord is right from his point of view. These are two diametrically opposed views of the same fact, clearly demonstrating the class nature of ethical ideas. What do we mean when we say “This is violence,” “This is an arbitrary rule”? The meaning of these statements is that we appeal to certain common principles that are presumably binding upon everyone. In fact, however, this means that we appeal to principles that we presuppose to be universal but that might not be recognized as such by our class enemies. This is why Jellinek’s definition of law does not withstand criticism.

The next definition of law belongs to a German scientist, Ihering. According to Ihering’s theory, which reflected the history of Germany in the 1870’s and 1880’s, “power creates law; law is the politics of power.” To put it differently, law is the embodiment, the legitimization of power in a written form. Ihering approached the problem correctly, but he, too, failed to raise the questions: “What type of power?” “Whose power?” and “Under what conditions is the power employed?”

Thus, following the examination of the various definitions, it becomes obvious that … an analysis of any social phenomenon must take into account the class point of view. But the raising of the class problem by a bourgeois scientist would be tantamount to recognition of the class nature of the state, of society, and of any legislation. This, however, would amount to telling the truth, which is antithetical to him and to his class nature. Therefore, it is obvious that, even if they were willing, the bourgeois scientists are organically incapable of either positing or correctly answering these questions.

In order to show how far-reaching is the inability to carry an analysis to its very end, even among non-bourgeois scientists, I would like to cite an example given by Comrade Podvolotskii. In the discussion of Reisner’s theory, Podvolotskii indicates that “Reisner, too, is filled with indignation at the attempts to interpret the law as an instrument of exploitation.” According to Reisner,

It is impossible not to notice the striking fact that we, in tune with bourgeois theorists, are ready to confuse the state with the law as two phenomena inevitably and inescapably related to one another. If the state is an organization of the proprietary classes directed against the indigent classes, then all law, as an inescapable ally of the state, appears as though tainted with the same exploitative aim. And if the state is ultimately doomed to disappear together with all other attributes of the contemporary class state, then the law is threatened with the same destiny.

This is Reisner’s protest against the view that all law is class law. But is there any other law? Why does Reisner think that it is so terrible when we assert that all law is the law of exploitation? What is the meaning of the exploitative law? The law is an instrument by means of which a class protects its interests. When the interests of a landlord require enslavement of peasants’ labor, he issues a law that says that the serf is a slave, is his property, which he can exploit, sell, deposit, kill, etc. In the paragraph quoted by Podvolotskii, Reisner stated that “law appears as though tainted with one and the same exploitative aim.” What a strange fear of words! If the entire burden of taxation in the worker-peasant state falls upon the proprietary class, then the questions arise: “What is it?” “Is it a norm, a law?” “Is it or is it not an exploitative norm?” Why not admit that it is an exploitative norm? Is there anything silly in that? I see absolutely nothing terrible in such a formulation of the problem. Yes, we exploit our class enemies whenever it is necessary. Indeed, our enemies are not the only ones we exploit. For example, we have issued a law on the apportionment of products and, in conformity with this law, we took everything away from the peasants with the exception of what was necessary to satisfy their bare necessities. With the food collected by means of violence, we fed the city and the army. Was this not exploitation of peasants’ labor in favor of a definite minority of the population? Indeed, it was exploitation, but I see nothing terrible in that… We resorted to such action because we had to feed the army, which was defending the state…

From Reisner’s point of view it follows that the law in itself, that is to say, the “pure” law, is not an instrument of exploitation. I would like to see at least one norm that has not an exploitative character. I would be willing to prove that every norm serves as an instrument for the protection of the ruling class’s interests. As long as classes exist, as long as they have not yet died away-every norm has an exploitative, compulsory, class character in relation to another class.

The aforesaid is an example of the fact that scientists, even those who call themselves Communists, cannot cut the umbilical cord that ties them to the bourgeois system and bourgeois theories. Thus, Podvolotskii also reproaches Comrade Stuchka for committing the same sin: for not carrying out the class point of view to its logical end. He quotes Stuchka as saying: “The system of relationships is the material element of law, whereas the system of norms is the ideal, ideological element of law.” Podvolotskii intends to demonstrate that even Stuchka has not yet broken off with the bourgeois conception of law as a pure ideological product … How right Podvolotskii is, we shall see later. Nevertheless, the fact is that even one of our most consistent theorists is reproached for committing the same sin.

This is why, prior to the examination of law, one must establish some general principles, general theses, from which we should not and cannot deviate under any circumstances… These principles are the following: First, every society is a class society, and, therefore, all facts and occurrences of social life in a class society are nothing but the form, the reflection, the manifestation of the class struggle. Consequently, all social institutions, without any exception-the state in its totality as well as an individual legal norm-are class institutions reflecting the interests of the ruling class…

Because of the class struggle, the legal norms in a class society constitute a middle line, a watershed, at which the struggle comes to a stop, for it has found its expression in written norms. But neither the class character of the norms nor their class origin is thereby affected. Moreover, the purpose of the legal norm is always to preserve the existing social order-its uninterrupted functioning-and that means to protect the interests of the dominant class. Looking from this point of view, every norm is rooted in the class nature of society and reflects the interests of the dominant class. Therefore, we shall always reject the attempts, regardless of by whom made, to separate the essence of legal phenomena from the class struggle and class interests.

We would like to give another and final example that will demonstrate in a most obvious way the errors stemming from inconsistency in this field. Presumably, we all are familiar with Lassalle’s The Nature of the Constitution and Workers’ Program. These books were published in 1863 and 1865 respectively. In one of these books Lassalle raises the question: “What is a constitution?” A constitution, he answers, is guns, prisons, and bayonets. In other words, he … conceives of a constitution as material force. The gun is a constitution, he asserts, because a gun constitutes power, is an instrument of coercion … Nevertheless, having correctly formulated the problem, Lassalle concludes his Workers’ Program in the following way: “Universal electoral rights-this is the banner that will lead us to the victory; of another banner we cannot conceive.” He develops the following argument in support of this view. Each class, he states, fills the state system with its own contents: the feudal class, or the first estate, filled it with its content; the bourgeois class filled it with “its own idea.” The fourth estate (or proletariat) should infuse into the state its own ideas, namely, “solidarity of interests, universality, and mutuality in development.” According to Lassalle, the proletariat should accomplish this by means of a universal electoral law. The state and the guns will then serve the working class. In his opinion, “Through the universal electoral right, the elected representatives will finally become a faithful and accurate reflection of the people who elected them.”

To be sure, Marx was very critical of such an approach. In his famous Critique of the Gotha Program, he openly spoke about the “struggle against the Lassallian faith in state miracles.” The gist of the controversy is that, while Lassalle correctly formulated the problem of the nature of state machinery as an instrument of compulsion and exploitation, he separated this state machinery as something entirely independent from social class relationships. Furthermore, he assumed the possibility that the working class, having conquered the state machinery, will infuse into the state its own ideas and will compel the state to serve its class interests. To put it differently, the state appears as being suspended in the air, torn away from class interests, from society, and from the living people who comprise this machine. A false interpretation of the nature of social relationships led Lassalle to the creation of a political program that asserted that all efforts of the working class should be directed toward the conquest of the state machinery only by means of universal electoral suffrage.

This is why our task is the following. The cited examples should help us to comprehend the methodological errors of our opponents, and to prevent them from committing such errors in the future. First, the law, in its rise, development, and content, is not an independent phenomenon. Second, the law is always derivative in its rise, development, and content. The law is always derivative from the existing social relationships, and its content always reflects the interests of the dominant class. The law expresses the interests of the dominant class, this is our third thesis. As such, the law is a result of the class struggle; it is the point at which the clashes of the class struggle come to a stop. This is the proper approach. If we deviate from this approach even one iota, we shall make errors that may have grave practical consequences … If we adhere to this approach, then our answers will always be correct.

Source: Michael Jaworskyj, ed., Soviet Political Thought; an anthology (Baltimore: Johns Hopkins Press, 1967), pp. 142-149.


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