Ilia Pavlovich Trainin, director of the Institute of Law,
U.S.S.R Academy of Sciences - 1945
I. Bourgeois Theories
Problems of the relationship between state and law – concerning their interaction and their influence upon each other – have hitherto received no clear illumination in bourgeois juridic science. Since its approach to the very essence of state and law has been incorrect, bourgeois science has been impotent to furnish a correct solution to these problems – hence the controversy, which continues to this day, as to whether state or law is decisive in their interrelationship, and which of the two was the first to emerge. Almost all the schools of bourgeois law have in some form or other set out their views on these problems.
From and after the seventeenth and eighteenth centuries – the appearance of the natural law school on the scene – sundry opinions have been expressed as to whether state or law emerged first. Some representatives of the natural law school, including Locke, pointed out that by nature man possesses natural “inherent” rights which no one can take away, and accordingly drew the conclusion that law existed prior to the state and continues independently to exist in an isolated form. Other representatives of the natural law school pointed out that – upon the transition from a condition of isolation to a state – man granted the exclusive safeguarding of his inherent rights to the latter, wherefore, the state became the source of law. Such was the view maintained by Hobbes and Rousseau.
This divergence of opinion also found expression in the controversies of the leaders of the seventeenth-century revolution in England: John Lilburne, leader of the Levellers, considered that the state must stand on guard in behalf of the so-called “inherent” rights: whereas Cromwell and Ireton held that no freedoms except freedom of conscience must go beyond the bounds set for them by the government and parliament. It was for this very reason that Cromwell was favourably disposed towards Hobbes (author of the Leviathan), who advocated the omnipotence of the state – permitting Hobbes to settle in England notwithstanding the fact that Hobbes had theretofore been linked with Charles Stuart who was then a pretender to the throne of England. Rousseau also put the omnipotence of the state in the foreground: “as nature gives each man absolute authority over all his members, so the social contract gives the political organism absolute authority over all its members.”
Subsequently, the German school of law – which took form from and after the middle of the nineteenth century – likewise recognized the state as possessing predominant importance (following Hegel's teaching regarding the state).
According to Ihering, the state – the possessor of a complete monopoly in respect of constraint – is the sole creator of law. It was only the conscious consideration of endowing law with great force which induced the state itself to establish for itself norms of law to which it is itself subordinate. This is expressed in Ihering's apophthegm: “law is the policy of force” (that is to say, the force of the state).
Laband held that by virtue of its own right, the state possesses public-law authority and the right of dominance. The state strives to operate within the limits of the law. However, it can at any time change or abrogate that law or halt its operation.
Jellinek advanced the theory of the state's “self-limitation” by law. The state thus constrains itself to something, threatens itself in case the norms of law are not fulfilled and so forth. This theory could grow up only in the conditions of imperial Germany, where the junker monarchy “limited itself” by certain concessions with reference to the bourgeoisie. That monarchy was not, however, authority “empowered by the people” – it was authority independent of the people and able even to renounce “self-limitation.” For the government was subject to the Kaiser – and not to the Reichstag or to the Prussian Landtag. The “unilateral law” which had grown up on German soil was subsequently employed also by Hitler jurists who demonstrated that there should be no statutes limiting the Führer and that – on the contrary – “statutes” issued by the Führer were binding upon all persons.
The opposing trend in bourgeois jurisprudence considered that the state emerged out of law – which thus precedes the state. People are united into a state for the sake of law which is the chief connective principle of human life in common. Individual bourgeois ideologists recognize that law is completely “independent.” Thus Duguit, starting from his doctrine of “solidarism” and “the social functions of law,” considers that law has always existed independently of the state. According to Duguit, law is the solidarity of human beings, and the demand of solidarity is binding even upon the state. Denying any so-called “inherent right,” Duguit thereby denies as well the formulation of law by the state alone.
Kelsen – the proponent of normativism – starts from the proposition that jurisprudence may not discern inequity on the part of the state whose sole function is the effectuation of the legal order.
The state is the manifestation of law.
Krabbe – another eminent representative of normativism – holds that legal norms possess force in consequence of their own inward bindingness and not because they are commands of the state. It is the “legal conviction of the people” that furnishes law its force.
To individual jurists, the problem of the correlation of state and law seems completely to “defy solution.” Thus Radbruch writes:
the state is at once the source and the result of law: its constitution – and by the same token its juridic existence – it draws from constitutional state law. However, inasmuch as the constitution of the state is a state statute we are confronted by an irreconcilable contradiction – state law is a postulate of the state whilst at the same time state law is the state itself.
Opportunists occasionally cite Engels' reference to the maternal law existing in the society which antedated the state, and infer therefrom that law came before the state – whereas this “maternal law” is not law in the modern sense but is a conventional term for the customs of primordial society.
In Marxist literature, there are still no special works treating of the problem posed. But it is manifest from the materials of the Marxist classics concerning the origin of the state that the emergence of the state was not sudden and automatic but was a protracted process – extending, perhaps, over centuries and depending upon the form taken by the rise and development of the dominant class in society and on how the organs of the primordial-communal social order gave way, conforming therewith, to the organs of class dominance which were coming to stand above society.
The emergence and development of law proceeded in a similar manner. Unlike bourgeois doctrines, Marxist science does not consider the rules and customs of the primordial-communal social order as law in the modern sense. Law already expressed the will of the dominant class at whose services the organs of the state were coming to stand. No longer did law correspond with the interests of society as a whole – it corresponded with those of society's dominant apex (which sought to identify its interest with the social interest). Ancient customs were still often preserved – but they were publicly recognized only insofar as they did not contradict the law.
The very controversy as to which came first – the state or the law – is a scholastic controversy: there is – and can be – no state (that is to say, an organisation of the dominance of a definite class) without law, precisely as there can be no law (that is to say, a system of coercive norms by means whereof that class safeguards its dominance) without a state.
II
Perhaps one of the most characteristic indices of the scholastic controversy of bourgeois jurists regarding the relationship and interaction of state and law is the theory of the rechtsstaat so-called, wherein – as its name suggests – the problems of law and state are combined. It must, however, be observed at once that there is no single theory of the rechtsstaat – it is understood and interpreted differently by different theorists in political science and in law. Most frequently, bourgeois jurists understand the term to mean a constitutional state wherein the dominance of law is supposedly assured. The term made its appearance when liberal theoreticians as a counterpoise to the democratic principle of “the general will” – sought to advance the moderate principles of a monarchy with representatives chosen by qualified electors. Its authorship is ascribed to the German jurist R. von Mohl, who in his own way developed the doctrine in his Polizeiwissenschaft nach den Grundsätzen des Rechtsstaates, 1823-1824. In Germany the formula veiled the most reactionary doctrines. According to Gneist, the term rechtsstaat characterizes only a state of the German people – he considers that the German state has been of this type throughout the course of history. For the recent historical period (the nineteenth century) Gneist's rechtsstaat is contrasted to the parliamentary state. The indicium of the former in recent times is a monarchy which stands above political parties and is particularly clearly typified (according to Gneist) in Prussia.
Even such an obscurantist as Stahl covered his understanding of the state under the rechtsstaat formula. For the liberal von Stein, the rechtsstaat is a state independent of society and administered in accordance with statutes recognized as binding on the government, to the end of safeguarding the law established by the legislature. It is a variety of the constitutional state. In its most characteristic shape, nevertheless, the rechtsstaat theory took historical form as the theory of liberalism – standing in contrast alike to the theory of feudal restoration and to the democratic teachings of state and law as “the will of the people.” Liberalism yearns for “freedom” – for “law” – which would guard liberalism from the people. Its concept of “law” went beyond the bounds of juridic concepts since – like some mystic “justice” – that concept was set above the state. The dominance of “law” over the state was symbolized by the principle of the separation of “powers,” a parliament based on a limited franchise and formal “freedom” of moderate civil rights. In general and as a whole, the rechtsstaat was a “constitutional state” wherein the principles of monarchism and liberalism were combined.
That there is neither any basic law nor any legal “conviction held by the people” independent of economics does not require to be proved. When in the middle of the eighteenth century, the people of the former English colonies in America were taxed beyond measure by the English authorities, they did not confine themselves merely to an existing “legal conviction” – their decision of the question was political and economic: they separated from England. Economics and politics were responsible even for their own “legal conviction.”
It is incorrect, also, to conceive of the state as “bound” or “limited” by law – just as it is incorrect to lay down the principle that the state can formulate any law it chooses. On this score it is sufficient to recall that Engels pointed out the inevitable and ignominious failure awaiting the state when it formulates a law not conforming with the development of economics and the production relationships that are taking form.
The state was never an impartial defender of any abstract “law” – it always safeguarded and regulated law in accordance with the interests of the class dominant in that state. The regulation by private law of the relationship between individuals was never arbitrary; that law was always law invested with authority by the state which made secure the corresponding legal relationships or created new ones conforming with the policy of the dominant class.
Even the doctrines of Russian liberals in the conditions of the constantly mounting Russian revolution were nurtured upon abstract legal formalism: thus Hessen defined the rechtsstaat in 1905 as a state which “in its activity – in exercising administrative and judicial functions – is bound and limited by law: standing below the law, and not above it.” The formula of a state “under law” says nothing as to the character of the law whereby the rechtsstaat is limited.
Kokoshkin defined the rechtsstaat as a state “which in its relations to its subjects is bound by – is subject to – law: in other words, a state whose members have – with reference to it – not only obligations but rights as well; they are not only subjects – they are also citizens.”
Almost on the eve of the February revolution Professor Pokrovskii considered that “tsarism could emerge from the crisis . . . having recognized a certain 'law' above itself including as well a certain indefeasible right of the separate human personality,” and that this comprised “the last contemporary phase of what is called 'the problem of the rechtsstaat'.”
It should be noted that even the obscurantists of tsarist Russia proved that as a matter of pure form – even the tsarist empire is a rechtsstaat standing “under the law” – citing in confirmation Article 47 of the Fundamental Law: “The Russian Empire is administered on the firm foundations of positive statutes, regulations and institutions issuing out of autocratic authority.”
The concept of a rechtsstaat – being an undefined and formal concept – throws a veil over the question of whose law (the law of what class) and whose state (the state of what class) it is that are involved. Adherents of divers political and legal trends have sought to grasp this. The ultra reactionary elements of the black hundreds have sought to grasp this. Opportunists and social demagogues have sought to grasp this for use in their struggle against the revolutionary understanding of state and law. Thus Kistiakovskii – one of the Russian champions of “juridic socialism” so-called – has written: “undoubtedly the complete unity of state authority with the people – that is to say, the complete unity of the state as an integral social organisation – can be achieved only in the state of the future: in a people's state or a socialist state. However, a socialist state will not create a new principle in this case – it will only effectuate the principle proclaimed by the rechtsstaat.”
After the first World War, German social-opportunists developed a theory of a social rechtsstaat (Sozialer Rechtsstaat). The concept “social” must cover a “class” concept. The multiplication of class contradictions is historically responsible for the “social.” Throughout the course of its history, the bourgeoisie is accompanied by its shadow and its opposite: the proletariat. When the bourgeoisie proclaimed civil liberty after its triumph over feudalism, the proletariat responded by demanding economic equality. In 1834, there was the worker uprising in Lyons; in 1838-1842, the widespread chartist movement in England; and in June of 1848, the first serious conflict between proletariat and bourgeoisie in Paris. It was difficult to be rid of the class struggle by conjuring up “freedom, equality and fraternity.” Amid the bourgeoisie there appeared sceptics who began deliberating about “social anomalies”; they called the social malady “a social problem,” and devised means of treating it by “the social state,” by “social law.”
Apprehensive of the intensified worker movement, Lourenz von Stein considered “the social state” can be carried into effect in the form of a “supra-class monarchy,” which must strive to turn the have-nots into property owners. It should be noted that the same “social monarchy” had been put forward in the form of a “people's kingdom” by Lassalle.
In 1871, when members of the commune in Paris “stormed the heavens,” Karl Rodbertus – in his pamphlet concerning The Normal Work Day – reassured the German burghers: “no, in no event will the social problem be decided in the street with the aid of a scuffle, stones from the roadway or even kerosene.”
In France, sociologists, beginning with Comte – strained every nerve to prove that property is a social function. “Social law” and “social solidarity” are evoked in place of the old “innate (natural) right” of property by Leon Bourgeois, Jud, and others. The most eminent representative of this doctrine in legal science was Leon Duguit. The “capitalist-property-owner fulfils a definite social function. I deny his subjective right of property, but I recognize his social duty.” That which Duguit says as to the capitalist is referable to the worker also. Classes are supposedly united by social functions – by their solidarity in carrying out those functions. It is not in society that a solution of the contradictions is sought by Duguit and his adherents but in the abstract idea of solidarity – as opposed to the doctrine concerning the struggle of classes. “I take it upon myself to assert that the doctrine of the struggle of classes is a repellent doctrine.”
All these “social” doctrines in their different variants were seized upon by the opportunists – especially the Germans. After the first World War – when events had put the German social democracy into the position of one of the ruling parties, its ideologists put forward “social theories” – understanding thereby concessions which the dominant class, personified by its state was obliged to make to the worker class in the interests of its own self preservation. This “social law” had to be made secure in special norms of law turning the ordinary rechtsstaat into a “social rechtsstaat.” Everyone knows that this social demagogy – which had become the banner of the opportunists in power – merely cleared the way for fascism. Why, after this, should it occasion surprise that fascism – which had destroyed legality of every kind – masked its bloody despotism under abstract “law,” and vulgarized and perverted even the abstract bourgeois doctrines of law by designating its fascist state as a rechtsstaat? “The Third Reich is a rechtsstaat” – we read in a fascist newspaper – “not in the liberalist sense but in its true sense, since it is the actual effectuation of a freedom subject to no control of any sort, and finding it boundaries only in the authority in the Führer... state authority in the hands of the Führer is the sole guarantee of freedom.”
It is, assuredly, impossible not to make the distinction between the fascist and liberal understanding of rechtsstaat. Struggling against the fascist danger, the worker class disputes every inch of bourgeois democracy which is – in truncated form – often given out as the embodiment of the rechtsstaat. It is manifest, however, from the forgoing excerpts from bourgeois ideologists that there is no single concept of the rechtsstaat and that all the dicta fall short of giving any idea as to the actual relationship of state and law. This impotence of bourgeois ideologists to furnish a correct conception of this problem is due, first and foremost, to the fact that they ignore the economic basis on which the policy of the dominant class – as expressed by state and law – is raised. We shall investigate more closely the part thus played by policy in the problem of the correlation between and interaction of state and law.
2. The Role of Policy in the Correlation between and Interaction of State and Law.
“Policy” is a term of varying import. Sometimes there is the idea of artfully deceiving persons in order to attain state purposes: the idea of intrigue. Sometimes people speak of the policy – meaning the line of conduct – of this enterprise or that (trust, syndicate, and so forth), ordinarily understanding thereby the line along which such enterprise is conducted: but this is not policy in its immediate sense – policy is truly policy only when it becomes state policy. The term “policy” is frequently given another and different meaning.
Stable doctrines as to policy commenced to emerge as long ago as slave-owning Greece. According to the doctrines of Greek thinkers – particularly of Aristotle, whose influence was preserved down to the end of the eighteenth century – policy was considered a branch of knowledge obligatory upon citizens to the end that the state could exist, develop, and improve. Strictly speaking, policy was a doctrine concerning the state which at the same time embraces all sides of social life including ethics, law, economics, pædagogy, and so forth.
At the end of the eighteenth century, bourgeois revolutions in North America – and particularly in France – aroused the masses, who entered upon the political scene under the guidance of the bourgeoisie. Policy became the concern of the masses in an ever-increasing degree – especially with the development of modern representative institutions and the franchise. Bourgeois ideologists sought to deduce from experience certain general principles and rules for the establishment of better methods of effecting the tasks of the state. In the first instance, these principles and rules included problems of state organisation – of state administration – which expressed the attitude of bourgeois governments toward the most important problems of political life and toward the policy of other states (external policy). Such general principles and rules began to be termed political science – the art of policy – concerning which many treatises have appeared since the beginning of the nineteenth century. The class essence of these works requires no clarification. Inasmuch as state and law are chiefly concerned, even the state law sciences acquired the name of “political sciences.”
Even the Marx-Lenin doctrine considers that policy is at once a science and an art. Art consists in knowing how to utilize in practical work the data of the Marx-Lenin theory. This art – resting upon the data of science, like great art of every sort – takes its start in science: in the laws established by scientific experience.
The Marx-Lenin doctrine recognizes that policy has its origin in economics, develops in the struggle of the contradictions arising in economics, and results from those contradictions and is therefore inseparable from economics. In economics lies the key to the explanation of the facts of political life, to an understanding of the political trends competing in society and to the elucidation of the class struggle. Yet it would be a mistake to consider economics the sole factor which determines an understanding of the historical process. It is essential there to keep in view the Marx doctrine of the correlation of basis and superstructure – of the reverse influence of the superstructure taking effect upon its economic basis – to the end of the further development and change thereof.
Policy is not – as vulgar materialists have sometimes sought to represent it – a simple cast or replica of economics. It is a conclusion drawn from generalized economics. Lenin, having in view in his time the inferences which must be made from economics, said that “policy is a concentrated expression of economics,” while – in the resolution of the IX Worker Peasant Party Congress on trade unions – this formulation of the essence of policy was narrowed thus: “policy is the most concentrated expression – the generalization and culmination – of economics.” “Concentrated expression of economics” signifies a generalized expression of the relationships taking form on the basis of economics; not only economic relationships but also social relationships which are broader than the former as comprising political-juridic and other relationships.
The domain of the relations between classes and social strata on the one hand, and state and law on the other, is decisive in the class conflict that finds expression also in the policy of the contending classes.
The aim of policy in the Marxist understanding of the term is by no means confined to the smashing of the class enemy – it includes also the establishment of dominance (dictatorship) over that enemy and forcing him (with the aid of state and law) to subjection in both the political and economic fields – to the end of his ultimate destruction as a class. “Policy is a relationship between classes... It is a struggle between classes.” Its central and basic problem is direction of the activity of state authority, formulating law in accordance with the concentrated expression – with the level – of economics. Lenin observed that policy is participation in the affairs of state: the trend of the state; the definition of the forms, tasks and content of the state's activity.
It is not easy to furnish in a single formula all the phases of policy which make up its essence and its content. We must confine ourselves to its most important essential sides. The foregoing citations of Lenin's thought concerning the essence of policy constitute a unity and may be reduced to a general formula. Policy is the concentrated expression of economics, responsible for the content and the direction of the state's activity, for the state's action effective upon the inter-class relationships made secure by law, for the state's influence upon the development of forms of consciousness (science, art and so forth), and also for the reverse influence of the entire superstructure upon the economic basis. Socialist policy is the concentrated expression of socialist economics; it is responsible for the development of the soviet social order and for the activity of the soviet state in the direction of intensifying the union of workers and peasants – under the guidance of the workers headed by the communist party, of strengthening the friendship of peoples, and of furthering the evolution of socialist law and the forms of socialist consciousness (science, art and so forth) to the end of planned progress of socialist society along the road to communism in the conditions of capitalist encirclement.
. . . . .
The policy of the dominant class is given material existence in organised form through the state and the law formulated by the state. organisation is not solely a technical problem: correct organisation is essential to the success – precisely as shortcomings in respect of organisation may lead to the failure – of the political line itself. Lenin insistently emphasized that “problems of organisation are inseparable from policy,” that the “complete subordination of the mechanism to policy” must “be the goal,” and that “it is for the mechanism to subserve policy – notwithstanding even corrections of the relationships between classes – and not for policy to subserve the mechanism.” Stalin has, in his turn, pointed out the necessity of elevating organisational guidance to the plane of political guidance.
Policy has provided the impetus for all the great overturns in the history of mankind and the state. Revolutions – if they actually are revolutions, that is to say, if they bring a new class to dominance – change the constitution of society and create new state institutions and statutes. A constitution expresses the will of the class and indicates its political trend – its supporting pillars of law and morality. The political credo of the Great October Socialist Revolution found expression first of all in the norms of the new state law – in the RSFSR constitution of 1918 – which became the juridic basis of all remaining law. The difference between the worker class political credo and all precedent political credos is that it embraces the legal principles not only of the organisation of the state – its structure and institutions and the rights of citizens but also a political trend of property which is without precedent in history.
Neither the state nor law either develops or operates in isolation from policy: so it has been throughout the history of state and law, and so it is in the socialist state. Socialist policy is a form of expressing the Marx-Lenin-Stalin theoretical concept of the world as addressed to everyday reality. It is a means whereby the theory finds daily embodiment in life. Having generalized practical experience through policy, the theory then takes material form in norms (rules) formulated by the socialist state. Aided by law, the state makes secure the development of policy.
At the Eleventh Party Congress Lenin said: “for the simple worker and peasant, we have gone on record as to policy at a single stroke in the form of decrees. . . Here is how we would wish the state to be governed. Here is a decree. Try it.”
As has already been noted, policy defines what state enactments and statutes, what organs of authority and administration, and what civil rights and obligations are essential for purposes of further development – and makes them secure by socialist law.
At the time of its emergence, the soviet state formulated its law and took cognizance of the correct development thereof in accordance with the policy projected. This was expressed in the decree of the Second All-Russian Congress of Soviets concerning the land and subsequently in the decrees concerning the nationalization of banks and big industry, concerning the court and monopoly of foreign trade, and so forth. This was law new as to content and purposes. In conformity with the development of the political line, soviet law had its own special characteristics at every stage on the road to the goal. These characteristics were expressed under war communism, under the new economic policy, under the liquidation of exploiter classes, and under expanded socialism – at every stage of history, state and law made secure and settled the demands put forward by policy in accord with the changing historical environment. Soviet law is law developing. Its economic basis in the contemporary stage is the socialist system of national economy, and socialist property in the instruments and means of production. In conformity with the policy of the state, law safeguards this basis and exercises effective influence upon the further development thereof.
As a social phenomenon, law is linked with policy – but this link is not direct. It is realized through the state, which – by its authority, force, and doctrine – guarantees the effectuation of policy in the form of rules of universal obligation – that is to say, of law. Only the state possesses the means of constraint. To establish or to change the legal order is the function of the state. Measures having the significance of law and creating obligations are promulgated by the state. Such media cannot be vested directly in policy. Through the state, law assures the stability of the relationships dictated by policy; regulating social relationships, law promotes the further development of policy in the direction of the achievement of ultimate purposes scientifically designed.
The classical authorities of Marxism pointed out in the Communist Manifesto that law is the will of the dominant class (a will whose content is defined by the material conditions of the life of that class) elevated into a statute. They understood thereby a policy already made secure by the state and expressed in a statute. Policy prepares the issuance of – and precedes – a statute. A statute makes a policy secure with the object of further regulating the conduct of human beings in accordance with political tasks and aspirations. The will of the class is identical with the policy of the class addressed directly to society through a statute invested with authority by the state. Even statutory concessions to another class in opposition to the dominant class do not exceed the bounds of the latter's interests. “Will – if it is state will – must be expressed as a law established by authority. . . Otherwise the word 'will' is an empty concussion of air by an empty sound.”
Without a political criterion, without a political gauge, without taking into account the class essence of the state which has formulated the law – approach to the history of law is impossible. The basic form of law – the statute – has always expressed and made secure the political interests of the dominant class. “What is a statute?” Lenin answers his own question: “The expression of the will of the classes who have gained the ascendancy and hold state authority in their hands.” It is a measure by means whereof the state establishes a universal norm of law or arranges the structure of organs and institutions.
The socialist statute is one of the most authoritative instrumentalities employed by the worker class which – with the aid of its state – is thereby making its policy secure in the creation and regulation of new social relationships: affirming, changing, or abrogating definite laws in accordance with political tasks which make up the agenda of the day.
Both policy and statute are a concentrated expression of the economic interests of the dominant worker class. Policy, however, based on science – on a knowledge of the laws of social development – expresses the tasks of the worker-class dictatorship in inter-class relationships, and often outstrips the social relationships which are taking form. A statute makes juridically secure an already established correlation of class forces and regulates the solution of new production tasks, confirms the arrangements essential thereto with all the power of authority, and makes fast the new social relationships – civil rights and obligations – thereby also paving the way for the realization of further political objectives and tasks of the worker class.
A statute is thus no manifestation of “freedom of the will”: at every stage it reflects the political level in society's forward movement along the road to the final goal. Accordingly, in the initial stages of the socialist state, Lenin pointed out that “in promulgating statutes which run counter to the expectations and the hopes of broad masses of the people, the new authority sets guideposts along the road of the development of new forms of life.” As new political tasks arose and the material basis of soviet society changed, the statutes serving as “guideposts” along the road of socialist achievements changed as well – attesting the level of these achievements. As if in vindication of the words of Marx, the soviet legislator “neither makes nor invents statutes: he merely formulates them.” By such formulation, however, and by setting “guideposts” along the road of social development, he promotes that development in accordance with the political objectives of each stage.
It is not for some chance cause necessitating legal regulation that a statute is created. Each individual link in the general chain of political development is examined, and the links in that chain which are decisive for legal regulation are selected – otherwise there is the risk that the norm will not achieve the solution of the task set by policy. In 1921, at the Seventh Moscow Province Party Conference, Lenin cited the example of the decree (of November 8/26, 1917) concerning the Monopolization of Private Associations, which proved inoperative because there was by this time a more important political task: to crush counter-revolutions by military force.
“Nothing was gained by the decree concerning the Monopolization of Private Associations – it remained merely a decree on paper while life – that is to say, the resistance of the capitalist class – compelled our state authority to shift the entire struggle to a plane completely different: to the problem to be or not to be, to smash the sabotage of the entire wage earner class and to beat off the White Guard army (which had received the support of the bourgeoisie of the entire world) – rather than to such inanities – such ridiculous trivialities – as those with which, in our naïveté, we had been occupied.”
In the dialectic unity of form and content of state and law, policy is the deciding factor in interaction, development and change. The legal norm reflects the demand of policy. Policy – developing in the contradictions of reality – leads to a changing of the functions of the state as well and accordingly to a changing of the form of state and law also. The content of the changing policy causes the old form “to spread” – leads to its being “sloughed” – and a new form developed.
Law cannot go beyond the bounds of the policy of a particular stage. Concrete problems of policy are solved in concrete conditions. It is policy alone that decides the essence, the character, the direction, and the form of the law formulated by the state. Policy is thus an important link in the correlation between and interaction of state and law.
Socialist law is sometimes portrayed as growing spontaneously with the development of economics. That economics is a basis of state and law is a truth which no Marxist would challenge. It is also true that state plays a more important part than law in the interrelation of state and law. The fact that state and law have a common foundation – economics – affords no basis for the inference that upon this common foundation there is a “planned” interaction of both superstructures – that it is in a fashion purely mechanical that the state puts law into official form – thus debasing the enormous and influential part played by the state in the development of law. Such an approach to problems of the interaction of state and law is sometimes to be found in individual bourgeois jurists: Duguit, for example, holds that law develops independently of the state.
The state does more than merely put law into official form: it defines the method, the form; and the content of law so that law may keep pace with the concentrated expression of economics: policy. Policy may outstrip the development of economics – may direct and define the development of new social relationships. Law makes juridically secure the correlation of class forces at every stage and the solution of new production tasks along the course required by the objective. Through the instrumentality of organs of state authority, law confirms the civil rights and obligations essential for this order of things. The state compels the fulfilment of law. As Lenin observed, law is “nothing without a mechanism capable of compelling observance of its norms.” In another place, he asks: “what is the state”? And his answer is: “the state is the organisation of life together which compels its members to carry into execution the statutes which it promulgates.”
Through the state, policy defines the legal order. The influence of the state is effective upon law as the concentrated expression of economics – policy – dictates, and not universally: this means that when the part played by “objective conditions,” so-called, is reduced to a minimum and when there is a realization that new conditions of the economic order have matured, it is necessary to make that new order secure in organisation forms in the shape of statutes, new state institutions, and so forth.
This proposition is brought out into particularly clear relief by the development of the socialist state and socialist law.
The policy of the first phase of the development of the soviet state consisted in carrying the basic task into realization: “in crushing the resistance of the overthrown classes, organizing the defence of the country against the aggression of interventionists, rehabilitating industry and agriculture and preparing the conditions precedent to the liquidation of the capitalist elements” (Stalin). This policy – that is to say, the concentrated expression of economics – predetermined the forms of the socialist state of the first phase and the content of the law formulated by that state.
The basic task of the policy of the second principal phase of the development of the soviet state was “the organisation of the socialist economy throughout the country, the liquidation of the last remains of the capitalist elements, the institution of the cultural revolution, and the organisation of a completely modern army to defend the country” (Stalin). This policy predetermined the new forms of the socialist state. “We now possess a completely new, socialist state, unprecedented in history, and importantly different in form and functions from the socialist state of the first phase” (Stalin).
In conformity with this policy, the content of the law changed as well. The new law was in harmony with the new content of economics and with the new relationships that had been established therein. Referring to the statute directed at suppression of profiteering, Stalin said – in his report on the achievements of the First Five-Year Plan (January 7, 1933) – “there is not – nor could there be – such a statute under the conditions prevailing during the first stage of the New Economic Policy”.
The law of the second phase is expressed in the new Fundamental Law – the Stalin Constitution.
What is said here as to the correlation of policy, state, and law is in contrast to the views of bourgeois political experts who – endeavouring to lurk behind a semblance of law – hold forth to the effect that the state can formulate new law at will: that it can dictate law. This is opposed likewise to the opportunists' views holding that the class struggle is, first and foremost, a struggle for a new law (for new statutes) to the end of reforming society with the aid of the new statutes. The opportunists argue that changes in socialist production may be attained by the gradual changing of law in the interests of the worker class. History has already shown that these views come to naught and has – on the contrary – confirmed all the importance of possession by the worker class of state authority in order to reorganise the capitalist means of production into the socialist means of production. Socialist law has become possible only in the conditions of the socialist state as a result of a policy directed at the struggle for the victory of the worker-class dictatorship. The correlation between and the interaction of policy, state, and law in socialist conditions are thus put into clear relief.
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The Marxist viewpoint, relative to the correlation between and interaction of state and law, is in contrast with the narrowly professional views regarding this problem held by jurists who consider state and law independent and isolated species. Only from the standpoint of a scientific concept of policy – as a concentrated expression of economics – can the problems of the correlation of state and law be investigated. If, as Lenin has pointed out, policy is the correlation between classes, then law is the recording and confirming of these relationships: “what is political law but the formulation – the recordation – of a relationship of power?”
Socialist policy was made secure upon the bases of legal measures distinctly defining as well the objective of the law. The Fundamental Law – the 1918 RSFSR Constitution – ordained (in Article 10) that “the Russian Republic is a free socialist society of all the toilers of Russia.” Article 3 pointed out that “to establish the socialist organisation of society” is the task of the soviet authority. The socialist means of production does not spontaneously take form: the development is conscious and pursuant to plan as effected by the policy of the party and of the socialist state. While the possession of authority was itself an indispensable prerequisite to the victory of the new means of production, it was not per se decisive of the problem. Fundamental economic questions came up for solution. In 1918, Lenin pointed out that “accordingly, that which is insistently moving forward is a new, a higher form of the struggle with the bourgeoisie and the transition from the most elementary task of further expropriating the capitalist to the far more complicated and difficult task of creating conditions such that the bourgeoisie could neither exist nor rise again.”
The policy of the soviet state started from the level of production forces which we must attain according to scientifically verified data on the road to our objective – and not merely from the level of those forces at the given moment. Reasoning from this starting point, the soviet state – from the very first days of its emergence – abolished freedom of competition. To counterbalance the elemental laws of the regulation of economics in capitalist conditions, the soviet state directed conscious and organised regulation toward the side of socializing the instruments and means of production. It guided the expropriation of the expropriators and developed the policy of “war communism,” so-called, when it was necessary to subordinate all economy to the demands of war in the conditions of the struggle against the sabotage of entrepreneurs.
With the nationalization of the land, big industry and the banks, the socialist state conquered the commanding heights in economics and thereby made an end of the elemental laws of capitalism.
After the civil war – when the system of war communism clashed with the interests of the peasantry – the party and the soviet state, to the end of assuring the union of workers and peasants, guided the direction of the new economic policy – preserving in the hands of the state the commanding heights in economics. The new economic policy was a sober, political calculation of the condition of economics and of the tasks then confronting the soviet state. The political task, the further strengthening of the worker-peasant union, was solved by the introduction of free trading, which was at this stage an impetus to the rehabilitation and expansion of agriculture – without which the further problem of broadening socialist industry was impossible of solution. The legal measures of that time promoted in every way the solution of the political – as well as the economic – problem. “From the spring of 1921 on, a whole series of decrees and directives – an enormous number of articles, all the force of propaganda, and all legislation – were adapted to bring about a higher exchange of goods.” Along this road, the development of soviet law passed also. The Ninth All-Russian Congress of Soviets declared that
new forms of relationships, created in the process of revolution and on the basis of the economic policy developed by state authority, must find their expression in the statute and their protection through the procedure of the court; to solve every sort of conflict in the domain of property relations, strong civil norms must be established; citizens and corporations entering into contractual relations with state institutions must be given confidence that their rights will be safeguarded.
Subsequent legal measures were bound to assure the same direction of policy.
The law of the period of the New Economic Policy did not, however, re-establish private property in general; and – while it assured regulation of buying and selling and of money circulation by the state – this was not a confirmation of the market element. Soviet law established also the bounds of private-enterprise activity, permitting the struggle between socialist and capitalist elements and calculating upon the victory of the former. Availing itself of the commanding heights – industry, transport, credit, and the cooperative – the soviet state assisted in every way in improving the small peasant economy, while at the same time limiting the exploiter tendencies of the kulaks.
However, as Stalin has pointed out, the soviet state could not long be based on two different economic foundations: on the biggest socialist industry and on the tiny peasant economy (which, moreover, promoted the segregation of capitalist elements). Without a solution of this problem, further progress of the successful policy of industrialization was impossible. Enormous areas remained unutilised for sowing since to reduce them to control was beyond the power of private economies. Technique – machine technique and agricultural technique – was in a low rut. Provisions for city dwellers and the army – as well as raw materials for industry – could not be considered assured.
The influence of concentrated economics – policy – consisted in installing technique in agriculture, expanding the sown area, and raising the quality of economic production. This could be effectuated through collectivizing agriculture and struggling resolutely against the kulaks who were furiously resisting that policy. The party and the soviet state assumed the leadership in the struggle to liquidate the kulaks as a class on the basis of the complete collectivization of agriculture – a struggle whose consequences were no less significant than was the revolutionary overturn in October, 1917.
It was not only the economic problem that was solved in this way – the political problem was solved as well. Complete collectivization destroyed the kulaks as a class, still further consolidated the union between workers and peasants, caused rural and urban economy to conform to a single type, and made it feasible to organise the peasants around advanced technique and thereby to raise and to expand agricultural production. The results of this were expressed in the assurance that provisions would be furnished to the nation and to the army – particularly in the conditions of a war for the fatherland.
The Stalin Five-Year Plans were scientifically verified and purposeful steps along the path to the final objective. The policy of the party and of the soviet state moved society from one phase to another. Law made secure, safeguarded and regulated social relationships so as to assure the development and influence of the moving force of policy. Law required the fulfilment of that which advanced persons now held to be in accord with principle and expediency. The development of law was decided not alone by economics but by the policy that had matured thereon as well. As Stalin has pointed out, we possessed the most advanced authority in the world and extraordinarily backward economics. Problems relative to the tempo of socialist industrialisation and to the liquidation of the kulaks as a class on the basis of complete collectivization all grew out of the concentrated expression of economics: policy, made secure by the new law. The problem as to whether the primary emphasis should be placed upon heavy industry or upon light industry was likewise more than a problem of economics – it was as well a political problem which had received confirmation in the norms of law. To the economic category, for example, collective farms are referable; but it would be puerile to assert that they grew spontaneously out of economics alone. They grew as well out of the concentrated expression of economics – out of policy: out of the revolution accomplished in agriculture (a revolution no less significant in its consequences than was the revolution in October, 1917 – as is noted in the Short Course in the History of the Bolshevik All-Union Party of Communists). This revolution – carried into effect under the guidance of the socialist state – resulted in the formation in agriculture of new production relationships confirmed by socialist law – by collective farm law in particular.
This is far from signifying that extra-economic activity is basic – that it is possible to skip over economic development. Assuredly not! Everyone knows that as early as 1926-1927, adherents of Trotsky and Zinoviev sought to provoke the party and the soviet state into an attack on the kulaks before the conditions of such an attack were made ready. “Could we have undertaken such an offensive against the kulaks five years or three years ago?” Asked Stalin at the end of 1929, “could we have then calculated upon the success of such an offensive? The answer is no. That would have meant exposure to a most perilous hazard... Why? Because as yet we did not possess supporting points in the rural areas, in the shape of a broad network of state farms and collective farms – available as bases in a determined offensive against the kulaks.” Only in 1929 – with the beginning of the struggle for complete collectivization – did the economic possibility, and consequently the political necessity also, present itself of passing from a policy of limiting and displacing the kulaks to a policy of liquidating the kulaks as a class on the basis of complete collectivization. The preceding policy was a stage preparatory to the new policy.
There is thus a difference between possibility and reality; only with a profound analysis of reality in the light of the general political line and a study of the ways and means of prosecuting the struggle can the possibility become a reality. “We can destroy the possibility of capitalism's re-establishment – we can dig up the roots of capitalism and aim at a final triumph over capitalism – if we carry on intensified work in the electrification of the country and if we put a technical foundation of modern large-scale industry under industry, agriculture and transportation.” That the triumph of socialism became possible was due to the fact that the political superstructure aided the development – step by step – of a mighty socialist industry, of agriculture (and the mechanization of agriculture), and of the material and cultural well-being of the toilers.
The development of law keeps pace with the developing legal consciousness of the dominant class which – conforming with policy – formulates the duty and the obligations of members of society on the basis of law. Law constitutes the system of norms constantly – and at each historical stage – embracing the economic and political conditions of that stage (which is making ready the transition to the next and higher stage). Such transitions are not realized spontaneously and without conscious volition – they must be prepared for and won. The policy of the socialist state carries such preparation into effect and the law of the socialist state makes that preparation secure.
Law is the intermediate link connecting the relationships which take form during the process of production. The policy carried into effect by the socialist state leads to the result that these relationships do not develop unaffected by conscious volition – they develop in accordance with plan, in conformity with an established objective. The active policy of the socialist state in the domain of economics eliminates possible anarchy in the relationships in production and thereby the element of chance in respect of legal norms.
The problem as to authority – as to the type of authority and as to the class to which authority belongs – is the basic and primary problem of the doctrine of the proletarian revolution, and policy is directed in the first instance to its solution. During the course of the struggle for the triumph of the proletarian revolution, Lenin wrote that Marxism recognizes the class struggle as fully developed and “nationwide” only when it not merely embraces policy but also takes over therein that which is most essential: the organisation of state authority.
This essential organisation of state authority presupposes in that case the creation of appropriate state institutions capable of promoting the policy and the law of the proletariat. The socialist state establishes norms conforming with socialist policy. On the basis of the new economics – which is creating new production relationships – a new policy is developing as well. That new policy is responsible for new rules of conduct. These rules of conduct give expression to the generalization of economic development which has passed through the consciousness of the dominant class – in consequence whereof that class strives to give these rules of conduct the character of universal obligation. The new policy seeks accordingly to exert influence as well upon the legal conviction of the masses – that is to say, to foster in them a legal consciousness which defines – in conformity with the political aspirations of the dominant class – that which is, and that which is not, in accordance with legal principles.
This is illustrated by the policy concerning nationalities. In soviet conditions that policy is understood to mean the aggregate of the measures directed as well at making the nationalities factually (that is to say, economically and culturally) equal to the advanced nations as at liberating them and creating a national polity.
At the different stages of the development of the soviet state, the national policy has been made secure by law – that is to say by statutes, orders, directives, and other norms of universal obligation. This law has its origin in the supreme principle of the national policy of the bolshevik party and the soviet state: the principle of the right of a nation to self-determination – that is to say, to segregate or to create its own national polity within the framework of the U.S.S.R. This principle is contrasted to the principles of the national policy of reformists, who considered it possible to solve the problem of nationality under the conditions of capitalism – making nationality little more than a matter of national culture, national language, and the like. Stalin has pointed out that the Austrian Social Democrats were obtuse in that “they failed to understand the indissoluble bond between the problem of nationality and the problem of authority; and sought to isolate the problem of nationality from policy and to confine it within the framework of cultural-educational problems.”
This by no means signifies that the bolshevik policy as to nationalities prior to the socialist revolution rejected statutes which could have mitigated the situation of the nationalities – the fact is definitely otherwise – but the party always pointed out that a complete solution of this problem can be found in the conditions of the socialist state.
Even in the conditions of the socialist state, however, the national policy – being a single policy throughout the state – dictates a separate approach to each individual people, depending upon its historical development, and requires the application of different forms of law in accordance therewith. “Local differences, special characteristics of the economic organisation into modes of living, the degree of preparedness on the part of the population, and attempts to effectuate this plan or that – all this must be reflected in the uniqueness of the path to socialism.” Thus in Dagestan – where social development was still extremely backward at the beginning of soviet authority – soviet law was established in a form differing from the form in which it was established in the Ukraine. In Dagestan, soviet authority permitted shariat and shariat courts. The People's Commissariat for Shariat (narkomshar) was there organised. Its tasks included surveillance of the correct application of shariat upon a soviet basis.
We are told that shariat has a certain significance among the Dagestan peoples. It has likewise come to our cognizance that foes of soviet authority are spreading rumours that soviet authority forbids shariat. I am here empowered to declare – in the name of the RSFSR administration – that these rumours are false and incorrect. The administration of Russia grants governance to each people on the basis of its statutes and customs. The soviet government considers shariat as customary law possessing the same complete legal potency as is to be found also among other peoples inhabiting Russia. If the Dagestan people wishes to preserve its statutes and customs, these should then be preserved.
At the same time, however, the people of Dagestan desired to enjoy the right to land granted to them by the soviet statute concerning land. The land had theretofore been in the possession of squires and kulaks who had been particularly belligerent for shariat which forbids encroachment upon exploiter property and land. Shariat came into conflict with the most urgent interests of the overwhelming majority of the people. When the exploiter elements demanded a solution of the legal problems concerning land in shariat courts, the masses insisted on the contrary that these questions be solved in soviet courts. Inasmuch as this was the will of the broadest masses, it found support in the organs of soviet authority. Thus the new concentrated economics – policy – dictated that the law and the courts of shariat be speedily replaced by soviet law and soviet courts.
The history of the state and law is closely linked with the history of political relationships – neither the state nor law has its own history disassociated from policy. Law in turn is not a factor independent of policy and the state – to deny all this is to prefer the jurisprudence of formal logic to Marxist jurisprudence.
Policy, the state, and law are three sides of a single process, while policy – “the concentrated expression of economics” – conditions the development of the other two. It is the driving belt which sets in motion the state and law and creates their interaction and their interdependence.
SOVIET LEGAL PHILOSOPHY, edited by John N. Hazard, translated by Hugh W. Babb. Cambridge, Mass.: Harvard University Press, Copyright © 1951 by the President and Fellows of Harvard College. Used by permission. All rights reserved.