Law

   (1) In modern society, law is the written, authentic, public system of rights and sanctions
   enforceable by the state. In earlier forms of society, law was not written, and the enforcing
   institution was not the state. (2) In science, law is the expression of regularity in
   phenomena.

   (1) Giving a formally correct definition of law faces the difficulty that when a law or system
   of law is seriously called into question, the matter is resolved by social conflict and
   violence or threat of violence, but law invariably explicitly excludes such a possibility.
   Thus law can only codify rights embedded in the existing state and in particular the interests
   of the ruling class in society. By codifying rights reflecting the balance of brute force, the
   appearance is given of authority standing above society and social interests and violence.

   “In civil law the existing property relationships are declared to be the result of the general
   will.” [German Ideology]

   Nevertheless, law is far from just being some kind of fraud perpetrated by the powers that be;
   class rule entails the creation of objective forms which predominate over the caprice of
   individual will, and for 99 per cent of the time law indeed acts as an objective force; at
   least it does so in a developed and mature social formation.

   Further, what gets codified in law, as a result of actions by legislators and judges can only
   give a determinate form to the real social practice, either as it is, or as it becoming. A law
   that is out of line with reality “on the ground” is, as the saying goes, “an ass”, and
   deserves to be flouted.

   “Whenever, through the development of industry and commerce, new forms of intercourse have
   been evolved, the law has always been compelled to admit them.” [German Ideology]

   While above we have explained the content of law, it is also necessary to explain the form of
   law. Leading Marxist thinker Evgeny Pashukanis espoused that law is created when the class
   system begins, and that the rule of capitalist law will largely carry itself over into
   Socialism; that there is no such thing as workers' law, only the dismantling of capitalist
   law, as society moves from capitalism to socialism, and from socialism into communism.

   Naturally, it was on this basis that Pashukanis was attacked by the Stalinists, who believed
   in increasing the power of the state (and thus the rule of law), and in building up a gigantic
   bureaucracy around a myriad of rules and regulations. The Stalinists attempted to argue that
   law is an instrument of class rule, and as a result that workers' should use it just as any
   other class has in the past -- completely misunderstanding that the essence of workers' rule
   is the destruction of the state, and thus, that by enforcing and building up the power of the
   state, the rule of workers is crushed. Pashukanis emphasised that the rule of law is not
   neutral, that law is tied to political economy, and that just as exploitation cannot be class
   neutral, nor can law -- both institutions must be abolished during the Socialist
   transformation.

   The Stalinists would often quote Lenin piecemeal and out of context, showing him supporting
   the supression of capitalists as a necessity for workers' power, neglecting to quote more than
   sentance fragments. In the following passage, Lenin re-iterates what Marx laid out in the
   Critique of the Gotha Programme:

   In its first phase, or first stage, communism cannot as yet be fully mature economically and
   entirely free from traditions or vestiges of capitalism. Hence the interesting phenomenon that
   communism in its first phase retains "the narrow horizon of bourgeois law". Of course,
   bourgeois law in regard to the distribution of consumer goods inevitably presupposes the
   existence of the bourgeois state, for law is nothing without an apparatus capable of enforcing
   the observance of the rules of law.

   It follows that under communism there remains for a time not only bourgeois law, but even the
   bourgeois state, without the bourgeoisie! This may sound like a paradox or simply a
   dialectical conundrum of which Marxism is often accused by people who have not taken the
   slightest trouble to study its extraordinarily profound content. But in fact, remnants of the
   old, surviving in the new, confront us in life at every step, both in nature and in society.
   And Marx did not arbitrarily insert a scrap of "bourgeois" law into communism, but indicated
   what is economically and politically inevitable in a society emerging out of the womb of
   capitalism.

   Lenin; State and Revolution, Chapter 5

   Right

   Right is the system of socially regulated freedoms (rights) having its origin in
   pre-capitalist societies, reflecting the developing relations between individuals, social
   classes and the whole community.

   Right is actualised as written and enforceable law, but has its origins in the social
   relations of production, and right exists even where it has not yet attained legal form.
   Furthermore, right is never an altogether settled question, but is contested and in change.

   Historical Development: The nature of right develops historically. In ancient and tribal
   society, the concept of right would be meaningless because personal interest has not yet
   developed as something distinct from communal interest; as Aristotle observed: “Where people
   are in Friendship Justice is not required” (Ethics, Book VIII).

   As feudal society developed, rights adhered to this or that person only in accordance to their
   station, and was expressed in systems of titles and obligations defining the place of each
   individual in society as a whole:

   “For feudalism ... the elements of civil life such as property, the family, the mode and
   manner of work, for example, were raised into elements of political life in the form of
   landlordism, estates and corporations. In this form they determined the relation of the
   particular individual to the state as a whole, that is, his political relation, his separation
   and exclusion from other parts of society. ...” [From On the Jewish Question, Marx 1843]

   From the time of the Magna Carta, there began to emerge concepts of “Rights of Man”. Denis
   Diderot, in the decades leading up to the French Revolution, elaborated the idea of “natural
   rights” that were subsequently enshrined in the Constitution of the French Revolution; Thomas
   Paine was instrumental in bringing forward the Rights of Man in the American Revolution,
   eternal, “inalienable” rights, which were subsequently incorporated in the drafting of the
   Constitution of the French Republic.

   The Right established by the French Revolution did not live up to expectations though:

   “Formerly, the feudal vices had openly stalked about in broad daylight; though not eradicated,
   they were now at any rate thrust into the background. In their stead, the bourgeois vices,
   hitherto practiced in secret, began to blossom all the more luxuriantly. Trade became to a
   greater and greater extent cheating. The “fraternity” of the revolutionary motto was realised
   in the chicanery and rivalries of the battle of competition. Oppression by force was replaced
   by corruption; the sword, as the first social lever, by gold. The right of the first night was
   transferred from the feudal lords to the bourgeois manufacturers. Marriage itself remained, as
   before, the legally recognised form, the official cloak of prostitution, and, moreover, was
   supplemented by rich crops of adultery.

   “In a word, compared with the splendid promises of the philosophers, the social and political
   institutions born of the “triumph of reason” were bitterly disappointing caricatures.”
   [Socialism, Utopian & Scientific]

   In the seventeenth century, a civil society had grown up between the kinship and state
   relations of traditional society, a society whose rights Thomas Hobbes described as “the war
   of all against all”. All the rights pertaining in civil, or bourgeois society, are derived
   from what Hegel calls “abstract right”, the right of property. The ethical system expressed by
   this abstract right was systematised by Jeremy Bentham and John Stuart Mill as Utilitarianism.

   Civil Rights and Human Rights: Despite the overlay of political rights, it is this system of
   abstract rights which is the dominant form of right in bourgeois society to this day. Marx
   drew attention to the distinction held between rights of citizens (civil or political rights)
   and:

   “the so-called rights of man ... are only the rights of the member of civil society, that is,
   of egoistic man, man separated from other men and from the community.

   “Liberty is thus the right to do and perform anything that does not harm others. The limits
   within which each can act without harming others is determined by law ... This is the liberty
   of man viewed as an isolated monad, with drawn into himself. ... liberty as a right of man is
   not based on the association of man with man but rather on the separation of man from man. It
   is the right of this separation, the right of the limited individual limited to himself. The
   practical application of the right of liberty is the right of property. ... the right of
   self-interest. .... It lets every man find in other men not the realisation but rather the
   limitation of his own freedom. ... Thus none of the so-called rights of man goes beyond the
   egoistic man, the man withdrawn into himself, his private interest and his private choice, and
   separated from the community as a member of civil society ... The only bond between men is
   natural necessity, need and private interest, the maintenance of their property and egoistic
   persons.” [From On the Jewish Question, Marx 1843]

   Although it has a 300-year-long history, “Human rights” is a phrase which has become more and
   more prominent since the mid-1970s, mainly in international relations, in relation to
   governments which resist free trade. The distinction made by Marx between “human rights” and
   “political rights” can be summarised as follows:

   ·         Human rights – the right to property, freedom of religion, etc., the rights which
   guarantee the concrete, real human being in their occupation, their beliefs, etc. – but
   founded on the separation of man from man, not on the relations or community of people, – the
   foundation of bourgeois political economy.

   ·         Political rights, – equality before the law, universal suffrage, etc. – can only be
   the rights of abstract human beings, rights which abstract from the real differences in
   wealth, privilege, education, occupation, kinship etc.

   The foundation of the bourgeois state on political rights equalised between abstract human
   beings, is the basis of a situation where the real differences and relations in social power,
   founded in civil society, dominate political life, despite formal equality. Consequently,
   civil life – global, universal, free competition and exchange – dominates political life.
   There can be no real political emancipation without real human emancipation.

   Workers’ Rights: In its struggle which develops within capitalism, the proletariat also brings
   forward its own distinctive “workers’ rights”. The needs of the class of people who must sell
   their labour power in order to live, are different from the needs of those who live off the
   proceeds of their property. Property rights are of little use to those who have no property.
   Workers need first and foremost the right to organise and form combinations, and the various
   rights which contribute to this such as legal protection for union funds, and so on, and the
   right to satisfaction of basic human needs – food, shelter, clothing, health, education –
   access to which the bourgeoisie can purchase with money. These are the distinctive workers’
   rights, over and above those fought for by the progressive bourgeoisie, rights that are denied
   in bourgeois society except insofar as workers secure them through struggle and protect them
   with legal instruments and the constant threat of class struggle.

   Rights Under Socialism: In Critique of the Gotha Program, Marx sketched the development of
   right under socialism:

   “Within the cooperative society based on common ownership of the means of production, the
   producers do not exchange their products; just as little does the labour employed on the
   products appear here at the value of these products, as a material quality possessed by them,
   since now, in contrast to capitalist society, individual labour no longer exists in an
   indirect fashion, but directly as a component part of the total labour. ...”

   “in a communist society ... as it emerges from capitalist society ... equal right here is
   still in principle – bourgeois right, although principle and practice are no longer at
   loggerheads ... equal right is still constantly stigmatised by bourgeois limitation. The right
   of the producers is proportional to the labour they supply; the equality consists in the fact
   that measurement is made by an equal standard, labour.

   “But one person is superior to another physically or mentally, and so supplies more labour in
   the same time, ... This equal right is an unequal right for unequal labour ...It is therefore
   a right of inequality, in its content, like every right. Right by its nature can consist only
   in the application of an equal standard; but unequal individuals ... are measurable only by an
   equal standard in so far as they are brought under an equal point of view, are taken from one
   definite side only, for instance, in the present case, are regarded only as workers, and
   nothing more is seen in them, everything else is ignored .. To avoid all these defects, right
   instead of being equal would have to be unequal.

   “But these defects are inevitable in the first phase of communist society as it is when it has
   just emerged after prolonged birth pangs from capitalist society. Right can never be higher
   than the economic structure of society and the cultural development conditioned by it.

   “In the higher phase of communist society, ... after labour has become not only a means of
   life but life’s prime want; after the productive forces have also increased ... only then can
   the narrow horizons of bourgeois right be crossed in its entirety and society inscribe on its
   banners: ‘From each according to her ability, to each according to her needs!’ “