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Law and Marxism: The State and the Constitution
If we are to have a genuinely revolutionary understanding of society, we have to throw the light of Marxist analysis on even the most shadowy corners of the bourgeois state, including constitutional law.

Last year, constitutional crises arose in Britain, the USA, Spain, Poland, and Brazil. Such crises present big problems for the ruling class because the state, and the constitutional laws that surround it, are deliberately mystified. Parliamentary democracy and the Rule of Law are treated as immutable ideas woven into the fabric of the universe. So when crises develop over the structure of the bourgeois state itself, this risks dispelling its aura of mystery and power.

For Marxists there is nothing mysterious about the state: it is a weapon of the ruling class to be used in the class struggle. Constitutional laws appear to regulate and limit the power of the state—does that mean they should be supported by Marxists? This would be a misunderstanding. Constitutional laws are a conquest of the bourgeois revolutions against the old feudal order, and they flow, in content and form, directly from a system based on commodity production. We have no illusions that constitutional safeguards can help the working class win its struggle against the bourgeoisie. It also means that, as well as the state being entirely different under socialism, constitutional law, and law in general, would look very different as well.

We must demystify those parts of the state that are obscured by legalistic phraseology and liberal prejudice. If we are to have a genuinely revolutionary understanding of society, we have to throw the piercing light of Marxist analysis on even the most shadowy and mysterious corners of the bourgeois state, starting with constitutional law.

What is a constitution?

Generally speaking a constitution is the set of rules according to which a body of people are governed. Constitutions dictate the relationship between citizens and nation states, as well as the relationship of various parts of the state machine to each other.

Rules about how states and societies should function have existed for as long as there have been state structures—around 5,000 years. But today, when academics, lawyers and politicians talk about the constitution or constitutional rights they tend to be referring to broadly defined liberal ideas and concepts, like fairness, equality and justice, which they say are defended by legal mechanisms. The overarching principle that encompasses liberal constitutional ideas is often referred to as the Rule of Law.When the British Supreme Court ruled against the government over Brexit, deciding that parliament and not the government had to have the final say over Britain leaving the EU, the judges were portrayed as defenders of British constitutional rights against overreaching politicians. When judges in the USA ruled against Trump’s Muslim travel ban, they were portrayed as upholding constitutional rights against authoritarianism. This is how constitutionalism and the Rule of Law are presented to us today—as a check against executive state power, and as a defender of the rights of the individual.

A constitution is like the legal scaffolding that holds up the state and which limits and directs its activities. To really get to grips with the concept of a constitution we need to have a clear understanding of the state itself—what it is, how it arose and why it needs this legal scaffolding around it.

On questions relating to the state, the starting point for Marxists is Engels’ Origins of the Family, Private Property and the State. Engels explains that, historically, the state arose at a point when society had developed the forces of production to the extent that it had become entangled in insoluble class antagonisms. He says:

But in order that these antagonisms, classes with conflicting interests, might not consume themselves and society in fruitless struggle, it became necessary to have a power seemingly standing above society that would alleviate the conflict and keep it within the bounds of “order;” and this power, arisen out of society but placing itself above it, and alienating itself more and more from it, is the state.

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Concretely, the mechanisms by which the state maintains “order” are the “armed bodies of men” Lenin writes about in State and Revolution, paraphrasing Engels. These are things like the courts, the prisons, the police and the army. In other words, despite appearances, state power does not stand neutral above society, but is a weapon in the hands of the class that is able to maintain an armed body of men. It is a tool of the possessing class for use against the non-possessing class.In his book, Engels writes about the rise of the Athenian state. He says that as long as Athenian production was on a low level the “gentile” constitution based on family ties and tribal administration was sufficient. But as the forces of production developed to produce surplus goods, classes of people became recognized on the basis of their relationship to the means of production, not on the basis of their “gens” or tribe.

Those who were part of the ruling, property-owning class proceeded to concentrate wealth and power in their hands. They used their wealth to inflict debt, bankruptcy and slavery on the lower classes, and used their new weapon of the state to sanction all of this through law. The initial rise of state power in Athens was never anything other than the consolidation of naked class rule by the rich over the poor.

The same was true of early feudal England. The state structure formalized after the invasion of William the Conqueror in 1066 consisted of a system in which the monarch nominally owned all the land, some of which was granted to his nobles, who in turn allowed serfs to work on patches of that land (in return for a life of servitude). This setup was transparently preserved by the armed bodies of men available to the feudal lords who could afford to maintain them. Like in Athens, the state and its armed bodies of men were openly a weapon of the possessing classes against the non-possessing classes.

Yet this apparatus of brutal class dominance is not how the state appears to us today. The ruling class and individual capitalists do not tend to run their own private armies to enforce their will. The state today is not simply an amalgamation of the wealthiest people in the country and their armies. Each capitalist submits, like everyone else, to the Rule of Law and the power of the state.
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The difference with statecraft today, compared to 11th Century England or ancient Athens, is that now there exists a clear and complete set of constitutional rules. Today’s state has limits placed on its powers, through the separation of different parts of the state (the legislative, the executive and the judiciary), through human rights treaties and a myriad of other legal and political mechanisms. And these rights are, in theory, enforceable by any individual acting through the courts.

The result is that today the law and the constitution are seen by lawyers and politicians as guarantors of the independence and neutrality of the state, supposedly in contrast to feudal England or ancient Athens. But this is an illusion. Today’s state remains a powerful weapon in the class struggle. Dressing it up in wigs and gowns with labels like “constitution” doesn’t change this fundamental fact. This is why it is important for Marxists to understand what constitutional rights really are—so we can lift the legal veil and reveal the class basis of the bourgeois state.

Bourgeois and constitutional revolutions

The ancient Athenian state described above, in which the state apparatus was transparently a weapon used by the possessing class against the non-possessors, did not last long. Engels explains that after the initial period of naked class domination through the state, Solon of Athens established a new constitution in 594 B.C. This constitution voided the insurmountable debts that had been piled on the lower classes; afforded them certain protections against the ruling class; prevented the lower classes being sold into slavery, and so on. In other words Solon’s constitutional arrangement seemingly reined in the power of the ruling class and subjected it to the discipline of the state. Engels describes this change as a “political revolution.”

Of course Solon’s constitution only protected the free Athenian citizen, not the slaves whose deprivation of rights and protections was the whole basis of the Athenian economy. But nevertheless this was a significant step towards a form of the state closer to something we might recognize today.

The British state has undergone a similar process of transformation since the 11th Century. The Magna Carta (1215), the Petition of Right (1628), the English Revolution and Civil War (1642), and the Glorious Revolution and Bill of Rights (1689) were all steps in this process. This process was intimately tied up with the birth, rise and ultimate victory of the bourgeoisie over the feudal aristocracy in their battle for political power.

This is what Marx and Engels describe in The Communist Manifesto in the following way:

Each step in the development of the bourgeoisie was accompanied by a corresponding political advance of that class. An oppressed class under the sway of the feudal nobility, an armed and self-governing association in the medieval commune; here independent urban republic (as in Italy and Germany); there taxable “third estate” of the monarchy (as in France); afterwards, in the period of manufacturing proper, serving either the semi-feudal or the absolute monarchy as a counterpoise against the nobility, and, in fact, cornerstone of the great monarchies in general, the bourgeoisie has at last, since the establishment of Modern Industry and of the world market, conquered for itself, in the modern representative State, exclusive political sway. The executive of the modern state is but a committee for managing the common affairs of the whole bourgeoisie.

The bourgeois revolution brought with it ideas such as equal political power for all (as long as you owned property and were a man), instead of hereditary rights. The monarch no longer had the right to act without the consent of a parliament, made up of elected representatives. In addition, executive action could be limited by the judiciary, through the medium of the courts. Democracy, the equal application of the law, and the freedom to work for whomever you pleased were all central to the new bourgeois order, albeit in a limited form at first. These are the basis of the rules that we today refer to as part of the British constitution.

Between King John I’s pre-Magna Carta unfettered feudal power and the modern Rule of Law stands a transformation equivalent to Solon of Athens’ political revolution. Both processes involved a transition from the state as a naked weapon of class rule, to a constitutional state.

Constitutions, then, were a major conquest of the bourgeois revolutions. They came about as the product of a class struggle, which forced concessions from the old established order. But this doesn’t mean they avoided compromise and accommodation between different wings of the ruling class, and between the old dominant order and the new one. Modern constitutions are the product of revolution, counterrevolution, compromise and debate.

Engels explains that Solon’s “political revolution” did not fundamentally change the class nature of Athenian society. It remained a slave society, just one with a different state structure. The bourgeois revolutions were a more fundamental change to society than simply a “political revolution,” because they moved society on from a feudal mode of production to a capitalist one, nevertheless they did not change the fact that society remained based on class exploitation and oppression—the dominance of a minority over a majority.

Marx makes this point in his book, The Eighteenth Brumaire of Louis Bonaparte. He says that “all [previous] revolutions perfected this [state] machine instead of smashing it.” In other words, the political revolution of Solon in 594 B.C. and the bourgeois revolutions in England, France and elsewhere, transformed the state and its armed bodies of men, but not in any fundamental way. The state under capitalism remains the same weapon of direct class rule that it was under feudalism, albeit more refined, “perfected,” and better suited to its task, i.e. defending the interests of the capitalist class and not the feudal landlords.
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If we look closely we can see that today’s state is the most refined and perfected tool for the ruling class. It is tied by a thousand threads to capitalist interests. The notorious revolving door between business and government ensures that ministers and civil servants slide easily between government regulators and the companies they are supposed to be regulating. Big business lobbyists use threats and bribes to force governments to act in the interests of the bourgeoisie. The courts, prisons, police and army are used to defend the private property rights of the rich, while the rights of the poor to housing and food are ignored.

When it comes down to it, the role of modern constitutions is simply to prettify with “checks and balances” the same state machine that has been used as a weapon in the class struggle ever since it first arose.

All of this raises some questions. Why did constitutional laws arise in the first place? Did Solon of Athens and Oliver Cromwell, leader of the English Revolution, just coincidentally have very similar ideas about constitutions despite being two thousand years apart? And why has the ruling class allowed the state to formally, legally detach itself from those in whose interests it operates by means of “checks and balances,” instead of continuing to take the form of naked oppression of one class by another?

It isn’t enough to answer these questions by saying that it is convenient for the capitalists to have an ideological smokescreen for their exploitation, though of course it is convenient to be able to hide this weapon of class oppression behind high-sounding phrases like “Rule of Law.” But that doesn’t explain why we have ended up with this particular ideological smokescreen. Why do we have the mechanism of a constitution to facilitate capitalist exploitation rather than something else?

The answer is that constitutional law is not just a clever idea dreamt up accidentally. Its form, as well as its content, is inseparable from commodity exchange and the development of the capitalist mode of production.

From the commodity to the constitution

The production of goods for the market, described by Marx as commodity production, is the dominant form of production and the foundation of the economy under capitalism.

To understand commodity production and exchange Marx examined questions relating to value and labour in his various pamphlets, books and speeches on the capitalist economy. But there is also an essential part of commodity exchange that relates to law which is also dealt with by Marx, albeit more briefly. The commodity, once produced, can only realize the value contained within it if it is exchanged on the market. But a commodity cannot exchange itself—it needs a conscious human to perform the act of exchange, or in other words it requires a legal owner. This means that the concept of legal rights of individual ownership is an inherent part of commodity production.

Marx explains this point in volume one of Capital:

Commodities cannot themselves go to market and perform exchange in their own right. We must, therefore, have recourse to their guardians, who are possessors of commodities. Commodities are things, and therefore lack the power to resist man. If they are unwilling, he can use force; in other words, he can take possession of them.

This means, for example, when two individuals confront each other in the marketplace they do so as buyer and seller, as legal owners, which means this relationship is a legal one.

But what is the nature of this legal relationship? A commodity exchange system requires that the market itself determine the exchange value of the commodities being traded. This is something in which the buyer and seller can’t play individual roles—it is something to be resolved by the general level of technique in the economy and other socially-determined questions. This means that the buyer and seller, while in the marketplace, must be stripped of all individuality that might disrupt the process of determining the exchange value of their commodities. In the process of exchange the buyer and seller must be empty vessels through which the commodities owned by them can assert themselves in the marketplace.

In short, the buyer and seller have to be recognized as entirely equal to one another, even if in reality they are not. This equality is the nature of the legal relationship between individuals in a system of commodity exchange.

It should come as no surprise then that legal equality is one of the rallying cries of the constitutional state. It is part of the famous slogan of the French revolution “Liberté, egalité, fraternité,” which established the political supremacy of the bourgeoisie. In his 2010 book, The Rule of Law, the former Law Lord Tom Bingham says that “equality before the law [is] a cornerstone of our society.” And this is the same idea put forward by Thomas Rainsborough during the Putney Debates at the time of the English Revolution in 1647 when he said: “For really, I think, the poorest he that is in England has a life to live as the greatest he.” The origin of this legal idea which seems unquestionable to us today is tied up with the birth of the capitalist system. Equality before the law is essential to the smooth running of commodity exchange and the capitalist system as a whole.

Much of modern law, including concepts of individual ownership, can be traced back to ideas and principles present in Roman and ancient Athenian law. This is because commodity exchange developed to a fairly high level even in these societies based on slave economies. But precisely because of this economic basis, commodity exchange and therefore a legal system based on commodity exchange could never become generalized in ancient Rome—legal rights could never apply to slaves for example. The generalization of commodity exchange that characterizes capitalism has allowed the development of the concept of equal legal rights to its highest point.

In order for individuals to confront each other in an open marketplace as legal owners with equal rights, certain guarantees need to be in place regarding the safety and security of the individuals and their commodities. Without these guarantees of rights to personal safety and property ownership, exchange could not take place and commodity production would grind to a halt.

This wasn’t a particularly big consideration in the early days of ancient Athens and the early feudal period because commodity exchange was comparatively rare and very localized. But as the forces of production were developed and a surplus of goods was produced on a regular basis, commodity production became a more common phenomenon. As the seeds of an exchange economy took root, force (or the threat of force) had to be used by those with wealth and power to guarantee the rights of the traders without whom commodity production could not continue. For example, as commodity exchange developed, it fell to the individual feudal lords to guarantee the security of trade in the marketplaces on their land.

For example, at the great international trade fairs that began to take place in Western Europe throughout the twelfth to fifteenth centuries, the local rulers offer traders safe passage to and from the fair. Below is a proclamation from 1349 by the ruler of Champagne, a region in what is now France, concerning the fair:

All the companies of merchants and also individual merchants… shall safely come, dwell, and depart, they, their merchandise, and their guides, in the safe conduct of the Fairs, into which We take and receive them from henceforth, together with their merchandise and goods, without their ever being subject to seizure, arrest, or hindrance by others than the guards of the said fairs…

But, in a society in which commodity exchange plays an increasingly important role, and becomes increasingly generalized, the use of force to guarantee the security of exchange transactions is not a role that can be played by any of the parties to these transactions.

This is because if one particular capitalist is both the trader and the guarantor of the security of his trading partner, the threat of force wielded by this capitalist is likely to distort the relationship between the parties to the transaction—the equality between them would be upset. If both capitalists are entitled to use force to guarantee the transaction, as perhaps they might have done in pre-capitalist times, then the exchange will no longer be based on the exchange value of the commodities, but rather on the basis of the relative combat strengths of the different capitalists. Clearly, if commodity exchange is to function properly then force cannot, in theory at least, be allowed to enter the equation.

As a result, the power that guarantees security for those capitalists engaging in commodity exchange must be a public power, independent of any one particular capitalist, but nevertheless in the service of the capitalist class in general. This is the role of the bourgeois state and its function is to defend the system of commodity exchange. A set of rules is required to guarantee the independence of this state from any one individual capitalist or group of capitalists, and to guarantee its loyalty to the capitalist system as a whole—these rules are constitutional laws.

This constitutionalism is referred to by Lenin in State and Revolution. He refers to a constitutional state as a “democratic republic.” He says:

Another reason why the omnipotence of “wealth” is more certain in a democratic republic is that it does not depend on defects in the political machinery or on the faulty political shell of capitalism. A democratic republic is the best possible political shell for capitalism, and, therefore, once capital has gained possession of this very best shell… it establishes its power so securely, so firmly, that no change of persons, institutions or parties in the bourgeois-democratic republic can shake it.

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What Lenin is explaining here is that a democratic republic, or a constitutional state, builds capitalism into the foundations of the state—into the very rules within which it operates. This is because, as explained above, it is based on commodity exchange and equal individual legal rights. Once this has been established, political parties, people and institutions can come and go but they will all be limited by the constitutional rules of the “democratic republic,” which means the rules of the capitalist system. This is why Lenin says that such a state is the “best possible political shell for capitalism.”

Like everything, this has certain limits, because there are times under capitalism when the ruling class has to resort to unconstitutional means to keep itself in power, such as the fascist regimes of the 20th century, and the technocratic governments that were installed in Italy and Greece following the capitalist slump in 2008.

Also, in times of crisis, when the interests of national bourgeoisies can no longer be guaranteed through the “rule of law,” war breaks out to establish a new order, such as the First and Second World Wars. During the rise of imperialism so-called “rule of law” did not apply to the colonial peoples whose wealth was taken from them on the basis of unequal exchange, which necessitated the use of the “armed bodies of men” at the disposal of the imperialist states.

In Britain, the ruling class has retained the monarchy as an undemocratic constitutional safeguard around which to rally in the event of revolutionary developments.

However, technocratic governments, fascism and feudal relics are the exceptions, while the general rule of bourgeois democracy and constitutionalism remains.

The point is that constitutional law and a constitutional state are phenomena peculiar to a capitalist mode of production, although some of their characteristics are visible in older modes of production (ancient Athens, for example), which developed commodity exchange to a certain extent. The concept of individual private ownership as a legal right is part of the foundations of capitalist society. Upon this foundation is constructed a constitutional scaffold that remoulds the old feudal, aristocratic state into a new bourgeois one. The state’s function as a tool of the possessing class to oppress the non-possessing class remains the same, but its precise form is refined and perfected to suit the needs of the bourgeoisie.

Socialism and the constitution

What does all this mean when it comes to the fight for socialism? Whilst it may be true that, here and there, we may be able to exploit loopholes in the bourgeois legal system to win victories for workers, Marxists must remember that the bourgeois state is hardwired against the interests of the working class. Based on their understanding of the Paris Commune of 1871, Marx and Engels explained that the task of the socialist revolution is to completely smash the bourgeois state, leaving not one stone upon another of the old state institutions. This is what makes the socialist revolution different to all previous revolutions which have simply refined the pre-existing state machine.

This raises the question of what would the state look like under socialism? Would there be a constitution? What would constitutional law look like? What would law in general look like?

The Russian Revolution of 1917 established the world’s first proletarian state. Like all states, the Soviet state was an instrument of class oppression. But unlike all previous states, the Soviet state was a weapon of the exploited masses to be used against the tiny handful of aristocrats and capitalists who wanted to oppress them, instead of the other way around.

In 1918 the first constitution of the Russian Soviet Federative Socialist Republic was adopted. It later became the model for the constitution of the Soviet Union. This was a document that openly described the class basis of the state, without recourse to impenetrable legal language or gaudy legalistic decoration. It explained that power in the country rested with the workers and peasants of Russia, expressed through the Soviets (workers’ councils), and that the former ruling classes and those who were supporting the White Armies in the Russian Civil War were denied access to political power.
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This gives us an idea of what the state and constitutional law under socialism might look like, at least at first. The proletarian state will not be a reformed version of the capitalist state. The working class will not simply co-opt the parliamentary structures and rules of the bourgeoisie and wield them for its own purposes. Instead, the working class will develop and use its own methods through which to assert political power and control over society, such as soviets: councils of elected worker delegates.

The constitutional rules that govern such a state will not be based on a false impartiality, and will not use the fiction of abstract equality before the law. When those who wield state power are the vast majority of society they no longer have need of such deceptions to keep people ignorant of the real role of the state. Bourgeois lawyers are fond of saying that “justice is blind.” But under the socialist constitution justice will have its eyes wide open, and will be looking to defend the interests of the working class. Such a constitution will simply and openly describe the existing relations between the classes.

All law, including constitutional law, is a reflection of the real class forces at play in society. The difference between bourgeois law and the first constitution of the Soviet Union is that the former tries to cover up this fact, while the latter openly accepts it. Ultimately the USSR degenerated towards bureaucratic dictatorship, not because of defects in its first constitution, but because of the balance of class forces within Russia and internationally. The isolation of the revolution in conditions of extreme backwardness, meant the exhaustion of the most advanced sections of the working class, and pulled the state inexorably towards bureaucratic deformation.

It is possible to chart the extent to which the USSR degenerated under Stalin by looking at the Soviet constitution of 1936, which Trotsky critiques in The Revolution Betrayed. This constitution abolished Soviets as organs of government and instead consolidated the overbearing position of the centralized bureaucracy. Instead of simply describing the existing relations between people and institutions in the USSR, this constitution adopted the methods of the bourgeois lawyers by dressing itself up in high-sounding phraseology to give the impression of radicalism, democracy and freedom, when in fact it was a consolidation of the bureaucratic counterrevolution.

What would socialism look like?

The state, to the extent that it exists under socialism, will require constitutional rules according to which it can operate in a socialist society. But the form that these rules take, and in particular how they are enforced, will be radically different to the bourgeois constitutional law that we have today.

Individuals enforcing their constitutional rights against the state through the courts is a hallmark of a system in which the state is separate and apart from society as a whole—dictating down to society instead of being an integral part of it. A socialist state, by contrast, would be an administration in which the vast majority of people directly participate on a day-to-day basis through their local workers’ councils in their workplaces and neighborhoods. The constitutional rules governing these state structures would not be abstract laws, enforced from above, but living guidelines shaped and used by the mass of people to help them with the running of the administrative functions of the state.

Ultimately, the economic basis of the socialist state contains the seeds of its own withering away. As the distinction between those who own the means of production and those who work the means of production disappears through workers’ control and management of the economy, class distinctions in society as a whole will also disappear. Without class distinction, there is no need for the existence of a state—of armed bodies of men—to govern people: all that is required is a body to administer things. The state itself and all its constitutional scaffolding would dissolve into the living fabric of a society no longer divided into classes. Rights of all kinds would be enforced through social pressure, cultural norms and other mechanisms integral to society, not through a state whose armed bodies of men loom over society.

Under such a system we would not need to lift the legalistic veil to expose constitutional law as a smokescreen for an oppressive state apparatus, as we do today. Instead we could live as a free and self-administering association of people, fully conscious of how society works and able to participate in the government of our own lives.

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