Marxist Legal Theory: The State
This is part of a series of key concepts in Marxist legal theory organized in collaboration with our friends at Legal Form: A Forum for Marxist Analysis of Law . All articles in this series, including the present one, will appear concurrently on Legal Form and Critical Legal Thinking.
Rafael Khachaturian offers a valuable review of some of the positions Marxists have staked out over the years on how to understand the state. He identifies three obstacles Marxian social theorists face developing a coherent critical theory of the state:
the incomplete character of Marx’s theorization of the state; the question of whether the state is adequately represented by the metaphor of the productive “base” and the juridical and political “superstructure”; and how, and how much, it can justifiably be said that law and the state maintain “relative autonomy” from the forces and relations of production.
Marxist Legal Theory
Fair enough. But perhaps in the interests of space or clarity, Khachaturian neglected an essential dimension of Marx’s analytical framework, a dimension that may add clarity to the entire discussion. Khachaturian correctly identifies an early “Hegelian” and a later (what should we call it) empirical or historical engagement, but he neglects to show how the later Marx redeploys Hegel’s categories in his later works. Attention to the specific changes in Marx’s analytical frame shed valuable light on the obstacles Khachaturian identified in his introduction.
Let me propose that one of the leading differentia distinguishing the early from the late Marx is that the late Marx shifted his vantage point of critique from the worker to the commodity form more generally, of which the worker, to be sure, is a singular example. In his early writings, Marx infers an integrated social subject, “species being,” whose actions are objectified through labor and whose products it then reappropriates. When objectified labor is alienated and appropriated by another, species being loses its integrity. Revolutionary activity aims to restore the integrity of species being by rationally, deliberately, and legally reclaiming alienated labor for those whose product it is. Khachaturian contrasts this Marx — the Marx of the 1844 Economic and Philosophical Manuscripts — to a later Marx, the Marx of German Ideology (1846) and the Communist Manifesto (1848). Let me simply note that the differences of perspective in these three works are far less significant than the differences between them and Marx’s Capital (1867).
In Capital, Marx shifted the vantage point of his critique from species being and the objectification of its labor to the commodity form and its two-fold composition. The base-superstructure interpretive framework noted by Khachaturian is an incomplete and one-sided version of Marx’s more nuanced take on the commodity form. In Marx’s version, in Capital, the so-called “economic” base is itself doubled. Abstract value, the abstract social substance from which all commodities derive their values, is paired with highly differentiated surface forms of appearance. This analytical frame Marx then applied to all commodities: labor, money, capital, land, and so on. From this vantage point, restoring the integrity of the alienated social form would entail no more than restoring unity to the two-fold commodity. In that case the value of every commodity would correspond precisely to the value of its surface form of appearance. (This in fact is the lesson Oskar Lange, architect of Comintern economics, took back to Poland after WWII.) But Marx took his argument in a very different direction. Rather than a restored integrity to a “whole” alienated under capitalism, Marx instead counted the two-fold form itself — both its surface and its underlying value — as mutually constitutive of capitalist social being.
This critique of capital is implicit in Marx’s earlier criticisms of Hegel, where Marx accused Hegel of ontologizing and universalizing social forms whose validity derived solely from capitalism. In his later writings, 1858 and later, Marx was more inclined to count capital itself as the ontologizing and universalizing social form and the Hegelian analytical frame as one of this social form’s expressions. In other words, both surface (superstructure) and underlying immaterial value (base) mutually compose a social totality whose supersession requires an entirely different kind of valuation; valuation no longer grounded in labor. To be clear, the mature Marx did not argue for the “return of labor to itself,” which had been his argument regarding species being. Had that been Marx’s argument, then a society mediated by labor, such as the Soviet Union or Communist China, would make perfect sense. But Marx was instead arguing that the form of domination unique to capitalism consisted in the limitations of social being in any society where labor constitutes value, irrespective of how that value is distributed, irrespective of who owns that value.
From this vantage point state forms within capitalism — including those versions of capitalism adopted by mid-twentieth century communist nations — can be understood as expressions of the two-fold form of the commodity. However wildly their surface forms of appearance, including their institutional and legal forms, differ from one another, we can understand them as expressions of a specific kind of underlying value. Here, the complete disfunctionality of the Soviet state form invites us to explore how abstract value constituted by labor in the Soviet state was appropriated by the party and distributed in ways that were less than efficient, to say the least. We can test this hypothesis by imagining how well the Soviet economy should have performed were it in fact based on substantive value democratically mediated, as Oskar Lange had suggested. In that case, there could be no value relation among commodities and between commodities and the labor commodity. Communities would produce what they needed to consume and produce what they wanted to consume, all the while reducing the labor time necessary to produce goods. Instead, never was there an opportunity to “step aside and install machines” in the place of workers. Rather, the party compelled workers to work even harder to cover the inefficiencies of the political apparatus. In this sense, the surface forms of appearance of the Soviet state mediated abstract value, but mediated it poorly.
Where volume 3, chapter 48, of Capital might have fit in Marx’s grand scheme of things is anyone’s guess. Nevertheless from it we can draw several fairly clear inferences about what a Marxian theory of the state might look like. Chapter 48 is where Engels chose to place Marx’s discussion of freedom: “freedom begins where labor determined by necessity ends.” From which it is self-evident that a labor-based, labor-mediated, society — no matter how the social product is distributed, no matter by whom it is owned — is still a society plagued by the two-fold form of the commodity. Bourgeois economists will point out that any other value criteria — health, ppm carbon, leisure time, food and wine, friends, entertainment — will either need to be reduced to abstract value, or it will generate distortions, create moral hazards, and, ultimately, give rise to dead weight loss. They are not lying. All of these consequences were on daily display in the former Soviet Union. And, yet, we know from our observations of other social formations that abstract time, labor, and value need not mediate social relations. ΔQ/ΔL (change in quantity divided by change in labor, or capital) is not universal. Aiming for its increase, more with less — through technological innovation, or cheaper energy, or lower labor costs, for example — is uniquely capitalist. By contrast, if we follow Marx’s discussion in chapter 48, communities might rationally and humanely aim instead not at a constantly increasing marginal product, but at good health, decreasing carbon footprint, superior knowledge, great wines, good cooking, and more than simply “quality time” with friends and family. We could reduce these once again to their marginal product. But why?
From this perspective we can easily imagine a proliferation of value spheres whose relationships to one another are no longer gauged by their marginal products, but, as they were for 2.4M years in all communities, carefully, thoughtfully, and rationally deliberated over. Such deliberations might take place in and through institutions that look very different from those that prevail under capitalism. But they might also look very similar. The critical question concerns the values informing the deliberations. If these are reduced to the marginal product, then nothing has really changed. If, by contrast, they are as rich and diverse and complex as human beings are in fact then the specific institutional expressions are likely to reflect this richness, diversity, and complexity.