In the autumn of 1842, Marx published a series of five articles (from October 25 to November 3) in the Rheinische Zeitung concerning a law passed by the Rhine Provincial Assembly that outlawed the collection of fallen wood. This was called, appropriately enough, the “Law on the Theft of Wood.” These early Marxian texts are usually only referenced for their biographical relevance: they showcase Marx’s unique ability to combine the virtuosity of the pamphleteer with the argumentative sophistication of a lawyer. But for us, these texts should be seen as more than merely an early stage in Marx’s eventual political development. For these five articles directly touch on the problem we have identified in the previous chapter, namely the problem of knowing what makes a customary “common law” a true “law of the common.”
In Article 1, Section 1, the Rhine law states:
the regulations enacted in this law with respect to the theft of wood include the following:
1.Any wood in any forest not yet felled.
2.Any green wood, outside the forests, intended for exploitation.
3.Any wood accidentally cut or overturned in whole trunks whose adjustment has not yet begun.
4.Any tree cuttings in the forest or in underdeveloped wooded areas.1
What is at issue in the passage of this law is both the legal characterization of “theft” as pertaining to the practice of collecting fallen or dead wood (which was previously considered a collective right), as well as the associated notion of property as primarily grounded in private and exclusive enjoyment. In fact, the Rhine law characterizes the collection of twigs and wood from the forest as a premeditated activity that is not categorically different from the theft of someone else’s wood.2 It is worth noting from the outset that an attack on customary use rights such as this was far from unusual in Europe at the time. By way of comparison, the French Forest Code of 1827, enacted under Charles X, reduced or removed use rights for the inhabitants of France’s forests, whether the forests were state-owned or communal. The code states that inhabitants “will no longer be able to collect or gather: grass, dead leaves used to smoke poor soils, heather and broom, fruits (blueberries, mushrooms …) and even fawns and acorns from which the poor made oil and even a kind of coffee.”3 And the collection of wood was itself severely regulated: “the peasant cannot collect wood, dead or green, nor of course cut trees; all infractions will be severely punished.”4 The code also limited the range, in terms of both time and space, in which animals were allowed to graze on forest undergrowth. The application of these provisions, especially restrictions on the collection of firewood and wood used for construction material, meant that many of the essential needs of communities were no longer met. Peasants were also often completely bankrupted by the code’s heavy fines, and municipalities were forced to bear the increased financial burden of paying guards to enforce the laws. In the mountains of l’Ariège, for instance, the peasants were so angered that they disguised themselves as women and violently confronted the guards and soldiers tasked with enforcing the law: “it was the War of the Maidens, and lasted from May 1829 to the summer of 1830.”5
The legal re-classification of wood collection as “theft” was, for Marx, clear evidence that the law was crafted to benefit the private interests of the forest owners. The landowners wanted to profit from the dead and fallen wood by selling it on what was then a booming firewood market, but this of course meant they had to dispossess the poorest peasants who customarily collected this wood and sold it themselves to make a living.6 For those interested in protecting the rights of the poor peasantry, the difficulty they immediately faced revolved around the clear temptation to appeal to older feudal laws as a means of critiquing these modern, private property statutes. On the one hand, Marx did not hesitate at all to approvingly cite the Order of the Criminal Court of the sixteenth century, which stated that the theft of wood involves only the “removal of cut wood and illegal felling,” and that the removal of fruits that are eaten during the same day is liable for civil punishment, but not criminal prosecution. As Marx writes, “the supreme penal code of the sixteenth century requests us to defend it against the charge of excessive humanity made by a Rhine Province Assembly of the nineteenth century, and we comply with this request.”7 Marx thus challenged the legal distinction between collecting fallen wood and the theft of wood, and – his reference to the Order of the Criminal Court aside – he was determined to do so without any reliance on feudal nostalgia. In the first of the five articles he published in the Rheinische Zeitung on the theft-of-wood law, Marx denounced feudalism in general as a “spiritual animal kingdom,” and he denounced the customary rights of the privileged in particular as merely an “animal form” of the law.8 As anyone who has read these articles knows, it can be rather difficult at times to follow the twists and turns of Marx’s argument: Marx works here upon several registers all at once and marshals support from opposing discourses in German philosophy of law (Hegel and Savigny specifically). It is more than likely that the complexity of Marx’s approach stemmed from the difficulty he faced in terms of differentiating his critique from more mainstream positions. As Mikhaïl Xifaras recognizes, Marx was confronted with a very specific dilemma: “how to critique a law that was obviously passed in the sole interest of rich property owners in the forest, and which deprives the poor of an essential resource, without appearing to defend a feudal conception of property?”9
We can schematically distinguish two general positions amongst those in favor of the Rhine law. On the one side, Count von Trips was in favor of this re-categorization of “theft” on the grounds that it is precisely due to the absence of this criminal charge that wood is removed so frequently. On the other side of the debate, a liberal politician named Brust argued that the collection of wood should rather be categorized as an abuse of rights – in this case an abuse of co-ownership or a usufruct – which would have at least meant formal recognition of the fact that the peasants enjoy a “usufructuary right of usage.”10 In contrast to both these positions, however, Marx argued that the collection of wood should not be an offense at all, and this argument can be fully legally justified. In the first of his five articles, and just after positively referencing the sixteenth-century Order of the Criminal Court, Marx strenuously highlights the essential difference between the act of collecting twigs and the premeditated theft of wood. Indeed, he infers an important legal distinction from this opposition: “if it must be admitted that the two actions are essentially different, it can hardly be maintained that they are identical from the legal standpoint.”11 To make his case, Marx argues that we must distinguish not between two actions, but between three: the appropriation of green wood, the removal of cut wood, and the collecting of fallen or dead wood. The first action suggests the wood was violently torn from “its organic supports,” and in this sense constitutes an attack on the owner of the wood insofar as it is an attack on the tree itself. The second act is a form of theft because the wood is already the product of the owner insofar as it was the owner who had already cut the wood. There is no question, then, that these two acts infringe on property. The third action, however, does not infringe on property at all: the dead wood or branches have already been separated from the tree – or separated from the object of property – and the accidental falling of the branches is not an infringement of property. In other words, the collector of fallen wood takes possession of that which no longer belongs to the tree and its owner. At the center of Marx’s argument is a certain conception of the relationship between the law and the nature of things, or what Marx enigmatically refers to as the “legal nature of things” (die rechtliche Natur der Dinge): “the legal nature of things cannot be regulated according to the law; on the contrary, the law must be regulated according to the legal nature of things.” The law, in this sense, is “the universal and authentic exponent of the legal nature of things.”12 Rather than conforming to the legal nature of things (as the very concept of the law demands), the law prohibiting the theft of wood contravenes it.
Two argumentative threads develop out of this conceptual architecture. First, Marx argues that the Rhine law merely codifies the private interests of forest owners, and so Marx denounces the law on account of its partiality and its incompatibility with the constitutive universality of true law. The second argumentative thread invokes a normative distinction between the customs of the “privileged” and the customs of the “poor,” and Marx argues that only the latter is worthy of legal codification. What tends to prevail in Marx’s critique, then, is not so much a rational concept of law or the state, but an argument about the specific relation between custom and “nature,” and it is a rather original attempt to overcome the antinomy between public (or universal) law and customary law, which we briefly discussed at the beginning of the previous chapter. Let’s then examine these two argumentative threads in order to map out the manner in which they overlap, and then we will try to ascertain the effects of this overlap in terms of the intelligibility of the law in its different forms.
It is not too difficult to identify the influence of Hegel within the first of Marx’s argumentative threads. The speculative theory of law had already distinguished between “real” or empirically existing law, and “effective” or “rational” law: the latter denotes the concept of law proper as it exists within positive law, and it is what makes it possible to critique that which is “irrational” in actually existing laws as contradicting law’s ideal universality.13 For Marx, this is precisely the problem with the Rhine Province Assembly’s law on the theft of wood. While it is undeniably a “real” law (in the sense that it actually exists), it nonetheless contradicts “effective” or “rational” law insofar as it does not fully embody the concept of law in its empirical manifestation. As Xifaras puts it, “the concept of law itself is based on universality, or in this case on the equality of all citizens insofar as they are members of the state, and thus a concept of law that applies only to property owners is irrational.”14 By punishing a “social irregularity” or, at most, a “contravention of a police regulation” as a crime, the law fails to realize that the “basis of the state is undermined if misfortune becomes a crime or crime becomes a misfortune,” and, from this point of view, the Provincial Assembly “does not observe even the elementary rules of legislation.”15 By perceiving criminal malfeasance in “he who commits infractions within the woods,” the law demonstrates the extent to which it is exclusively driven by private interest. As Marx puts it, “the petty, wooden, mean and selfish soul of interest sees only one point, the point in which it is wounded.”16 Contrarily, if the state is to live up to its concept, it will
regard even an infringer of forest regulations as a human being, a living member of the state, one in whom its heart’s blood flows, a soldier who has to defend his Fatherland, a witness whose voice must be heard by the court, a member of the community with public duties to perform, the father of a family, whose existence is sacred, and, above all, a citizen of the state. The state will not light-heartedly exclude one of its members from all these functions, for the state amputates itself whenever it turns a citizen into a criminal.17
But he for whom the “inhuman” has become a “supreme essence,” in the form of an “external object” or an “alien material essence” (i.e., wood), can only himself be inhuman and only capable of “legislation inspired by self-interest, and therefore by cowardice.”18 This critique runs through all five of Marx’s articles on the theft-of wood-law. In the last lines of the article from November 3, 1842, Marx ironically adopts the point of view of the “savages” of Cuba and channels their perspective on this debate (had they been seated in the Rhine legislature): “would they not have regarded wood as the Rhinelanders’ fetish,” just as the indigenous Cubans viewed gold as the Spaniards’ fetish?19
Marx’s fourth article on the law further describes the legislature’s inability to achieve the impartiality demanded by the very concept of law as such. Specifically, Marx hones in on a section of the law that confers the task of evaluating the worth of stolen wood to the local forest ranger (as opposed to the French Code, for instance, which tasked the forest ranger with catching the thief, while evaluation of the stolen property was determined by an independent body).20 The law specifically stipulates that if a theft of wood occurs more than two miles from a royal district, “the warden who makes the charge determine[s] the value according to the existing local price.”21 As Marx asserts on this point, “it is obvious from an examination of the qualifications of the warden who makes the charge how little he is objectively able to be at the same time the valuer of the stolen wood.”22 For how could the forest warden be both the protector of the wood and the agent charged with evaluating the wood? By imposing a value on the wood, is the warden not also imposing “his own value,” which is to say “his own activity”?23 And how could the warden, “as the guardian of wood,” both “protect the interests of the private owner” and, “as valuer,” “protect the interests of the infringer of forest regulations against the extravagant demands of the private owner?”24 And since the warden is also the “denouncer,” “the charge he draws up is a denunciation” and thus the “value of the object … becomes the subject matter of the denunciation.”25 The warden therefore “loses his dignity as a judge” because of his “function [as] denouncer.”26 And finally, entrusting the warden-as-denouncer, who “is in the pay and service of the forest owner,” with the task of evaluating the stolen timber amounts to “leav[ing] the valuation, under oath, to the forest owner himself.”27 And in true partisan spirit, the Rhine Provincial Assembly also undermined “the sole provision which constitutes the last semblance of the state’s power in the realm of forest glory, namely life appointment of the denouncing wardens.”28 According to the deputies who spoke in favor of eliminating life appointments for guards, life appointments were too financially burdensome for small forest owners who could not afford to hire a permanent warden.
Marx then asks if the relation between the state and the accused (the forest offender) should be defined on the basis of the resources of the forest owner. If, argues Marx, “the state has a right against the accused” it is “because it confronts him as a state,” and thus it is dutifully compelled to act toward the criminal as a state: “the state has not only the means to act in a way which is as appropriate to its reason, its universality, and its dignity as it is to the right, the life and the property of the incriminated citizen; it is its absolute duty to possess and apply these means.”29 However, instead of drawing this conclusion, the Assembly deputies inverted this rationale: “it was concluded that since private property does not have means to raise itself to the standpoint of the state, the latter is obliged to lower itself to the irrational and illegal means of private property.”30 In Marx’s view, one could not imagine a more complete degradation of the state, insofar as this action is in complete contradiction with its concept: “private interest.… is bound to degrade the state to the thoughts of private interests.”31 This “sophistry of private interest” reaches its apogee in the remarks made by an urban deputy, who declared “every spur to loyal fulfillment of duty is paralyzed by life appointment.”32 As Marx aptly argues, whenever the warden is tasked with evaluating stolen wood, private interest “puts on its rose-colored spectacles” and manifests a “naïve, excessive confidence”; but when it comes to evaluating the same warden’s sense of duty, private interest now dons its “world-wise dark spectacles of practice” and manifests an “abusive, censorious distrust.”33 By demanding the warden be entirely subject to the arbitrariness of the forest owner, the owners in fact demonstrate that they really only have confidence in themselves, as is aptly attested by the logic that “turns the servant of the forest owner into a state authority, [and] turns the authority of the state into a servant of the forest owner.”34
And thirdly, the law passed by the Rhine Provincial Assembly seriously questions “the notion of public punishment.”35 Article 14 of the law reads as follows: “all fines for the theft of wood, even if they are paid by several persons in the case of co-perpetrators, accomplices, or beneficiaries, all accrue to the forest owners, as well as any forced labour in the case of insolvent convicts.” The law thus obliges the thief to pay fines in addition to reimbursing the amount of stolen value, value that of course is determined by the forest warden. These fines are therefore a punishment imposed on the thief by public law. As Marx writes:
Punishment as such, the restoration of the law, which must certainly be distinguished from restitution of the value and compensation for loss, the restoration of private property, is transformed from a public punishment into a private compensation, the fines going not to the state treasury, but to the private coffers of the forest owner.36
For Marx, then, the law clearly enters into open contradiction with the demands of legal formalism. As Marx reminds us, public punishment is “a right of the state, but it is a right which the state can no more transfer to private persons than one person can hand over his conscience to another.”37 But the matter is more serious still. Article 16 of the law stipulates that if “the fine cannot be recovered due to the indigence of the perpetrator or the persons responsible in his place, the fine will be replaced by forced labour or a term of imprisonment that, under no circumstances, shall be less than 48 hours.” And, further, Article 19 adds: “the forced labour which the condemned person must perform firstly consists of forestry labour for the forest owner.” This last proposition is nothing but the capture of the state by the private interests of the forest owners. For even after Article 4, which allows the forest warden to determine the value of the stolen wood, and Article 14, which directs fines toward the coffers of the private forest owners (and which retrospectively confers on Article 4 its true meaning, since the evaluator effectively taxes on behalf of his employer), it is in Article 19 that “the mask is discarded and a claim is advanced not only for money, but for the criminal himself, not only for the man’s purse, but for himself.”38 In other words, just as Article 14 revealed the truth of Article 4, so too does Article 19 reveal the true nature of Article 14, insofar as the fines themselves now become the forest owner’s right to exact forced labor, which is to say the “temporary serfdom of the debtor.” The “forest owner,” writes Marx, “has [now] cleverly concealed that he has adjudged himself the right of punishment itself”; it is because the fines are not simply a sum money but a form of punishment that the owner can secure the condemned “body and soul.” The forest owner has thus succeeded in “converting a public right into his private property” by using the wood thief to situate “himself in the place of the state.”39
In his final article, then, Marx is thus perfectly justified in summarizing his critique in the following terms: “our whole account has shown how the Assembly degrades the executive power, the administrative authorities, the life of the accused, the idea of the state, crime itself, and punishment as well, to material means of private interest.”40 The core of Marx’s critique thus lies in the clash between private interests and the principles of law: in this affair, it is interest that has ultimately been imposed on the law, such that “private interest lay down laws to the law where the law had laid down laws to private interest.”41 By sacrificing the “interest of right” to the “right of interest,” the law adopted by the Rhine Provincial Assembly denounces itself as “of no value,” or an “empty mask,” since it amounts to giving the form of law a content that is in contradiction with the universality and objectivity that necessarily belongs to the rational concept of the law. Thus, for Marx, “the whole law was an exception to the law.”42
The dialectical inversion of the existing law through an appeal to the concept of law undoubtedly owes much to Hegel. It should be noted, however, that Marx’s line of argumentation diverges from its Hegelian orientation in one crucial respect. As Xifaras observes, the Rhine Provincial Assembly’s attempt to elevate the contents of private interest to the form of law should not have been unexpected, given the fact that the Assembly is nothing other than “an Assembly of the Estates of particular interests.”43 Since 1832, in both Prussia and Austria, three social “estates” were represented in the provincial assemblies – the nobility, the city, and the countryside – and the number of representatives from each estate was determined by the amount of tax each estate paid. What this meant, in both Prussia and Austria, was that 25 percent of the population effectively chose 85 percent of the legislature. Now, we know for Hegel that legislative power must precisely represent different social states (Stände) in such a way as to mediate between the government and the people and, in theory, a Hegelian lower house functions as a “universal state” since the civil servants and deputies who sit there do so as representatives of the state, not as private individuals, even if they happen to be property owners.44 But if the house is also designed to represent each of the three estates – the nobility, the city, and the countryside – are the representatives not also representing the “particular common interests” of their particular estate?45 In light of the universality inherent in the concept of law as such, are not such interests really just purely private interests? And in the case of the Rhine Provincial Assembly, are these private interests not directly determined by the very particularistic criteria of representative eligibility itself (i.e., taxation)? As Marx argues:
The Provincial Assembly, therefore, completely fulfilled its mission. In accordance with its function, it represented a definite particular interest and treated it as the final goal. That in doing so it trampled the law under foot is a simple consequence of its task, for interest by its very nature is blind, immoderate, one-sided; in short, it is lawless natural instinct, and can lawlessness lay down laws? Private interest is no more made capable of legislating by being installed on the throne of the legislator than a mute is made capable of speech by being given an enormously long speaking-trumpet.46
In other words, private interests, even if they are “common” to a large number of representatives, are still nothing more than private interests: “how can it fail to follow that a body representing private interests, the estates, will seek to degrade, and is bound to degrade, the state to the thoughts of private interest?”47
In two separate instances throughout the five articles, Marx articulates his critique of the political pretensions of private interest through the character of Shylock from Shakespeare’s The Merchant of Venice (which should dispel any doubts about Marx’s motivation on this matter). The first reference appears in Marx’s second article on the Rhine law, published on October 27, 1842: “the petty, wooden, mean and selfish soul of interest” tries to destroy that which obstructs it; it does not fear non-right but rather the consequences of right in the person who threatens the external object with which it identifies, as is verified in the words of Shylock: “Hates any man the thing we would not kill.”48 The second reference appears in Marx’s fifth and final article, in the form of a much longer passage from Scene 1, Act IV of the same play. In this scene, Portia has just rendered her verdict, and she then adds the following words:
PORTIA
Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are “a pound of flesh”:
An astonished Shylock responds:
SHYLOCK
Is that the law?
PORTIA
Thyself shalt see the act.49
This extended quotation appears in the context of Marx’s aforementioned discussion of Article 19, whereby the forest owner is granted the ability to effectively make the offender his serf. Marx argues here that the protection of the interests of the forest owners is directly opposed to the “sense of right and fairness in protecting the interests of those whose property consists of life, freedom, humanity, and citizenship of the state, who own nothing except themselves (des Eigentümers von nichts als sich selbst),”50 all of which is to the say the humanity of the offender himself. The ownership of the self, which makes all humanity property owners of a certain kind,51 is opposed to the ownership over another person as invoked by the forest owners; their material things have been aggrieved and, as a result of their fetishized notion of value, these material things have become their very essence. This, for Marx, makes the principle embodied in Article 19 clear enough: “the forest owner, in exchange for his piece of wood, receives what was once a human being.”52
These two Shakespearean references give form to a certain conception of private interest that is worth emphasizing. The character of Shylock embodies private interest, in its very being, as fundamentally calculating: “interest does not think, it calculates.”53 Indeed there is, as Marx writes, an “argumentative mechanism of private interest” whose two principle categories are “good motives” and “harmful results.”54 Sometimes interest justifies its disregard for law by invoking the “shrewd, wise and good motives” of those in power, and sometimes it depreciates the value of law by invoking its “harmful and dangerous results.”55 In the first case, its motives are the “numbers” or “figures” with which private interest calculates with an aim to “abolishing the basis of law,” and in the second case, its calculations concern the consequences of law, which is to say its “effects in the external world.”56 In either case, interest never conceives of law “as an independent object,” but subsumes law with the “internal world” of its own ideas, and it assesses law according to its effects in the “external” world. If private interest can only attack the foundations of law, if the “right of interest,” this new “saint,” necessarily contradicts the “interest of right,” it is because it denies any autonomy to the law. This is to say that the autonomy of law constitutes the true principle of the critique of the sophistry of interest. Viewed in this light, Marx’s critique is diametrically opposed to that embodied by the character of the Bastard in another Shakespearean play, King John. The eponymous King John is none other than the same king who signed the Magna Carta in 1215 (though this is not mentioned in the play), and at the end of Scene 1, Act II, the Bastard, the illegitimate son of Richard I, paints a striking picture of an empire without shared “Interests” (“Commodity”):
BASTARD
With that same purpose-changer, that sly devil,
That broker, that still breaks the pate of faith,
That daily break-vow, he that wins of all,
Of kings, of beggars, old men, young men, maids.57
What is striking about this critique is that interest, in this case, is not at all reduced to a natural instinct, as it was in Marx’s references to The Merchant of Venice. Here, rather, interest is now opposed to the natural march of the world:
BASTARD
That smooth-faced gentleman, tickling Commodity,
Commodity, the bias of the world,
The world, who of itself is peised well,
Made to run even upon even ground,
Till this advantage, this vile-drawing bias,
This sway of motion, this Commodity,
Makes it take head from all indifferency,
From all direction, purpose, course, intent:
And this same bias, this Commodity,
This bawd, this broker, this all-changing word …58
Shakespeare’s term “Commodity” is meant here in the sense of profit and interest, rather than denoting an economic product. It is thus difficult to maintain, as Peter Linebaugh does, that Shakespeare anticipated the Marxist labor theory of value, much less that he “reduces the commodity to the sexually active female.”59 There is, however, much that can be gleaned from the way in which the term is used twice to qualify “Interest” in this monologue: commodity is first of all described as “the bias of the world,” and then again described as “this same bias.” This term very effectively differentiates the perspective adopted by Shakespeare in King John from that perspective Marx quoted from The Merchant of Venice: the world inhabited by King John is depicted as a medieval world in which the values of fidelity, loyalty, and faithfulness are still proclaimed loud and strong. Together, these values comprise the ideal of chivalry. But, at the same time, this medieval environment is uncompromisingly measured by the Renaissance yardstick as a world internally wrought by the cynical calculations of self-interest. The picture the Bastard paints of this world – in which the world is collapsing and on the verge of chaos – is framed around opposites: the right and the twisted, straightness and deviation, the direct and the warped. The world “of itself is peised well” – i.e., is well built – and is “made to run even upon even ground” is subsequently diverted by interest from its natural course, and is, in a sense, decentered. In other words, the world is still perceived by the Bastard from the point of view of chivalry, even if his perspective is here devoid of illusions about chivalry’s future and is held by someone who wants to worship in the interest of his own “master.” The world of The Merchant of Venice is, however, very different: it is, at least partly, the world of sixteenth-century maritime commerce. The play takes place in a city run by doges who engaged in widespread speculation and interest-lending, and whose laws are pitiless when it comes to the poor because they are entirely designed to promote the development of trade. The Bastard and Shylock, in other words, are two very different personifications of interest: while the Bastard is the spokesperson for that polyvalent interest that vituperates the vice of wealth one day and the vice of wretchedness the next, Shylock embodies the cruelty of that interest that will go to any length to get what is rightfully its own. This is precisely why Marx references Shylock in his critique of law on the theft of wood. Marx does not condemn private interest on behalf of some natural course of the world, founded on faith and loyalty, but rather denounces private interest as a “natural instinct” capable of cunning and reason. And he opposes this conception of interest to the public law of a modern state that actually conforms to its concept, based on a Hegelian-inspired approach that turns against orthodox Hegelianism itself.
Given Marx’s emphasis on the conflict between public law and private interest, could we not simply label Marx a “good liberal rationalist” who denounces the mystification of a “falsely universal and rational state” on behalf of this same universality?60 Is not Marx’s critique, in this case, merely a matter of opposing the true purposes of public right against its appropriation by private interest? To see why this interpretation is not tenable, we need to look at the second argumentative thread woven through these five articles on the theft-of-wood law. From the very beginning of his first article, Marx gives special consideration to the nature of custom as such, and he concludes this article with a fierce denunciation of the customs of the privileged as “contrary to the law” (wider das Recht).61 Taken literally, this assertion claims that the customs of the privileged are, in fact, illegal. On the other hand, Marx “demands for the poor a customary right [das Gewohnheitsrecht] and indeed one which is not of a local character but is a customary right of the poor in all countries.”62 In other words, Marx calls for a universal customary right of the poor.
Marx’s claim is striking in its originality, and needs to be carefully unpacked. For it is through this unusual claim that Marx endows customary right with a rather singular double determination, namely the unusual extension of a very localized social content onto a global scale. This assertion fundamentally breaks with the dominant view that such laws or customs can only be local in nature. We have already seen that custom is lex loci, while “common law” is extended to the national level, at least in England,63 and so it should not be identified with customary right. And as widespread and perennial as the customary rights of the poor were, they were far from indiscriminately codified into common law. The “artificial reason” of judges and lawyers was, as we have seen, extremely reluctant to endorse any customs that might discourage “improvements.” But Marx is not satisfied with this claim alone (which is already a little confusing). “We go still farther,” asserts Marx, “and maintain that a customary right by its very nature (seiner Natur nach) can only (nur) be the a right of this lowest, propertyless and elemental mass (dieser untersten besitzlosen und elementarischen Masse).64 We need to pay careful attention to move from one premise to the next in order to properly grasp what Marx is saying at the beginning of the second sentence. He first asserts “we go still further,” and thereby indicates he wants to move beyond the premise “there must be a customary right of poverty” (as far as such a thing can be claimed), to a more ambitious proposition: “customary right is necessarily the customary right of the poor.” In other words, Marx is saying that there can be no other customary law other than that of the poor, because any other customary right would in fact be a non-right, or the negation of right – meaning any conflict between the customary rights of the privileged and the customary right of the poor is a priori excluded. The assertion that the customs of the privileged are contrary to right thus finds its logical compliment in the assertion that customary right is by its very nature the customary right of the poor. And if it is implied that this right of the poor is necessarily a global right, we must then conclude that customary right can only exist as a global right of the poor.
The juridical form of customary right is not, therefore, understood by Marx as a merely formal phenomenon indifferent to its social content: it is rather the specific form through which poverty can and must assert its rights. Accordingly, then, the question posed above about what criteria allow us to discriminate between good customs and evil customs is resolved as soon as it is posed: the only customs capable of being elevated to the form of the law are the customs of the poor; the other customs, those of the privileged, are the negation of right, pure and simple. The dissymmetry between these two kinds of custom, in terms of their relation to law, could not be more complete. And since, moreover, the customs of the privileged are only “so-called” (sogenannten) customs, the whole question here turns on our understanding of what precisely allows Marx to ground this dissymmetry in the nature of custom qua custom.
The first part of Marx’s argument is meant to show how the customs of the privileged are in fact the negation of law. The “customary rights of the aristocracy” prove that they are in fact “customary wrongs” by virtue of the inherent opposition between their content and the universal and necessary form of the law as such: “the customary rights of the aristocracy conflict by their content with the form of universal law. They cannot be given the form of law because they are formations of lawlessness.”65 It is at this point that the two argumentative lines of Marx’s articles begin to intersect: if, on the one side, the law passed by the Rhine Provincial Assembly violates the universality of the concept of law, the customary rights of the aristocracy, on the other hand, are equally unable to satisfy the same norm of “legal right.” Considered in terms of their content, both the Rhine law and the customs of the aristocracy enter into open contradiction with the universality of the law: the first by virtue of the fact that the law tries to make the private interest of the forest owners the measure of legal right, and the second because these customs are nothing more than an attempt to perpetuate privileges that pre-date the formation of legal right, privileges that were inherited from an epoch in which “animal right” and “unfreedom” reigned due to the fact that humanity was divided into unequal races (races inégales).66 For Marx, then, there is no opposition in principle between customary law and legal right: “at a time when universal laws prevail, rational customary right is nothing but the custom of legal right, for right has not ceased to be custom because it has been embodied in law, although it has ceased to be merely custom.”67 Understood properly, then, we are not dealing with a situation in which legal right puts an end to customary right by uniformly consigning custom to a “barbaric past” (as the edifying history of modernity would have it); rather, custom is re-constituted as the “custom of the state”; or better put, it is merely pre-legal custom itself that becomes the custom of the state. There is no rupture, then, between customary law and legal right. However, this only applies to “rational” customary law: whereas rational customary law is law insofar as it “exists alongside and in addition to law,” the customary rights of the privileged social estates are non-rational because they do not anticipate the law – not in the sense that the privileged castes have not succeeded in obtaining recognition from the law for “even their irrational pretensions,” but in the sense that these estates “have no right of anticipation in regard to law.”68 That these rights continued to be claimed by these estates changes nothing; they are only the manifestations of “whims” and “pretensions” that extend beyond the limits of the law. The conclusion is thus self-evident: the “customary rights of the aristocracy” do not anticipate the law because they are “customs which are contrary to the conception of rational right.”69
Contrastingly – and this is Marx’s second argumentative thread – the customary rights of the poor are rights that conform to the concept of rational law in that they anticipate legal right. If they are contrary to something, it is not the rational concept of law, but rather the “custom of positive law.” As Marx puts it, “their content does not conflict with legal form, but rather with its own lack of form. The form of law is not in contradiction to this content, on the contrary, the latter has not yet reached this form.”70 If there is an opposition, it is an opposition internal to the customary right of the poor, an opposition between its content and its lack of legal form, and not between its content and legal form itself: since it does not have legal form as such, its content obviously cannot be formally opposed to the form of law; on the other hand, the customary right of the poor strives to achieve legal form, and in this sense it can be said to anticipate a legal right to come. But how, then, are we to understand the opposition between the customary right of the poor and the “custom of positive law”? This unusual formulation requires some explication. We should not confuse this custom with the “custom of legal right” discussed above, nor with the “concept of rational law.” Positive law may have the form of law, and it is in this sense codified as legal, but it does not conform to the “concept of rational law.” Indeed, in most modern countries, positive laws take the form of “liberal laws” that “treated and have been compelled to treat” the customary rights of the poor very “one-sidedly,” and it is precisely this one-sided character that prevents the “custom of positive law” from truly conforming to the concept of rational law.71
What then, more precisely, is one-sided about positive law, and why has liberal legislation treated the customs of the poor in this way? In other words, what compels this one-sided treatment? What we need to explain now is positive law’s non-recognition of the customary right of the poor, rather than the latter’s conformity to the rational form of law. Marx observes that, in the field of private law, liberal legislation successfully abolished particular customs by simply elevating their laws to the level of the universal without granting any new rights over and above those already in force. Since these already-existing laws were the rights of “social estates,” which is to say the privileges of those who enjoyed customs in addition to the law, those who did not belong to any social estate – this “propertyless and elementary class”72 – have no rights, only customs. Under these conditions, abolishing all customs was tantamount to depriving the mass of the most underprivileged the only protections they enjoyed, which were little more than “accidental concessions” that eventually acquired the force of custom.73 Marx articulates this logic through the example of monasteries and the secularization of monastic property. Marx borrows this example from Hegel’s Philosophy of Right, but he interprets the example very differently. In §3, Hegel attacked the “historical justification” of institutions produced from contingent circumstances to more clearly mark the difference between historical justification and universal or conceptual justification:
Suppose, for example, that we accept as a vindication of the monasteries their service in cultivating wilderness and populating them, in keeping learning alive by transcribing manuscripts and giving instruction, and so on, and suppose further that this service has been deemed to be the ground and the purpose of their continued existence, then what really follows from considering this past service is that, since circumstances have now entirely altered, the monasteries are at least in this respect superfluous and inappropriate.74
As already observed by Xifaras,75 whereas Hegel uses this example to deplore the narrowness and poverty of the historical school of legal philosophy, Marx uses it to better demonstrate the injustices wrought on the poor by liberal legislation:
The monasteries were abolished, their property was secularised, and it was right to do so. But the accidental support which the poor found in the monasteries was not replaced by any other positive source of income. When the property of the monasteries was converted into private property and the monasteries received some compensation, the poor who lived by the monasteries were not compensated. On the contrary, a new restriction was imposed on them, while they were deprived of an ancient right.
Instead of denouncing contingency, as Hegel does, Marx shows how contingency itself should have been raised to the level of law, such that this “accidental support” is transformed into a legal guarantee. It is precisely in this sense that we should see modern positive law as “one-sided”: instead of transforming “accidental concessions” into “necessary concessions,” chance and contingency were abstracted and this “accidental support” provided by the monasteries was suppressed, while, on the other hand, the privileges of the social estates were legally codified. In short, the old abuses were legalized while the “positive side” of these abuses – i.e., the customs that emerged alongside these abuses that allowed the poor to secure subsistence during periods of scarcity – was suppressed. But why was this necessary, strictly from the point of view of modern private property? It was because of the entrenched distinction between public law and private law that, as we have already seen, formed the fundamental basis of modern legalism from the sixteenth century onwards. For the relationship between the customs of the poor and the law was very different during the medieval period. As we saw in the work of E.P. Thompson in the last chapter, the concept of property was not the central concept of customary feudal law, which embraced blurry zones of indistinction that modern law, at its core, tries to reduce and eventually eliminate. This is precisely what Marx is talking about when he explains the one-sidedness of modern legislation in matters of private law:
These legislations were necessarily one-sided, for all customary rights of the poor were based on the fact that certain forms of property were indeterminate (schwankenden) in character, for they were not definitely private property, but neither were they definitely common property, being a mixture of private and public right, such as we find in all the institutions of the Middle Ages.76
Generally speaking, then, almost “every medieval form of right,” not only in terms of property, “was in every respect hybrid, dualistic, split in two.” Modern laws, however, are the product of “understanding”: this means, especially after Hegel, that every object of law must be endowed with a fixed determination, and it must be isolated from other legal objects. This process invariably transforms objects one-sidedly – it is by definition required if a previously dualistic or indeterminate object is to be transformed into a definite and particular thing. While such legal uniformity may indeed be a “great and remarkable” thing, it nonetheless had the effect of “abolishing the hybrid, indeterminate, forms of property by applying them to the existing categories of abstract civil law, the model for which was available in Roman law.”77
What we find lurking behind the one-sidedness of modern private law is therefore, once again, Roman law. And on this particular point, there is actually agreement between the otherwise profoundly discordant historical and speculative legal traditions: each tradition agrees on the central legal importance of the concept of property. More specifically, they both consider the law of property as a “subjective and exclusive right” over an unfree object, to put it in Kantian terms. This equally applies to Roman law (this notion is certainly present in Savigny’s treatise on Roman law) and it applies to Hegel’s discussion of property as an “abstract right” in the first part of his Philosophy of Right.78 For Marx, however, if the customary rights of the poor are “contrary to the customs of positive law,” it is precisely because the concept of “custom” is a concept of modern private law, which is of course a form of law that is incapable of grasping the hybrid nature of older conceptions of property.
We now are able to gain a better appreciation of the originality of Marx’s argument. On the one hand, Marx’s conceptual approach to the relationship between law and custom – i.e., incompatibility or anticipation – allows him to distinguish between good and evil customs, whereas Hegelian philosophy rejects all custom outright on account of the formless and indeterminate nature of custom as such.79 Custom exists, for Marx, “alongside and in addition to” legal right, and so we must recognize that there is a certain positivity and even rationality to custom, even if custom is not explicitly codified in law. We must therefore refrain from strictly identifying positive law and legal right in a Hegelian fashion. This is to say that the rationality of customary right owes little to reason in the sense of “the conscious activity of the faculty of the thought,”80 much less reason in the speculative or conceptual sense of the term. But does this mean that Marx is aligned with Savigny and the historical tradition of legal philosophy? One could be forgiven for coming to this conclusion, insofar as the positivity of law, for Savigny, is a form of underground or unconscious positivity, a positivity that operates outside the will of specific legal actors and outside the arbitrary will of sovereignty. It is a positive law that lives in the “common consciousness of the people” and which, for this reason, could be called the “law of the people.” It is a law that is expressed in spontaneous, regular, and continuous customs and practices throughout history; it is law as the manifestation of the shared beliefs of a people, and is in this sense much like a language. For Savigny, however, this active but invisible “historical” law does not contradict or cancel out Roman law, but is actually the means of its actualization in German law: it is precisely the continuity of Roman law qua private law in the multitudinous German states that allowed the latter to function as a kind of default national law that was conspicuously absent in Germany.81 If the law inherited from the past includes custom law, canon law, and Roman law, this means Roman law “constitutes the only continuous and common feature of Western history.”82 Savigny’s project is not, therefore, the artificial re-activation of Roman law, but rather the “Romanization” of historical law, or the “patient and collective updating of historical law to make the latter conform ever more precisely to the older traditions of the Roman jurists.”83
It is important, then, to be precise about Marx’s critique of the historical legal tradition. On the one hand, Marx would certainly agree with Savigny, contra Hegel, that positive law does not coincide with legal right, simply because the historical school endows spontaneous practices with juridical positivity independent of legislative assent or sovereign will. But, on the other hand, Marx cannot abide the notion of a “law of the people,” nor the affirmation of Roman law as a pan-European universality, especially when we are dealing with the law of property. The first point is self-explanatory given the cleavage between the customs of the poor, which exist “alongside legal right” without opposing the form of the law, and the customs of the aristocracy, which are in fact “non-legal customs” since they oppose the form of law by virtue of their arbitrary content. This means that the very notion of the “the unity of the people” is, for Marx, an illegitimate notion. The second point directly relates to the nature of the law prohibiting the theft of wood: the historical tradition is fundamentally incapable of recognizing the use rights of the poor because, like all modern liberal law, it inherited its concept of property from Roman law. What is ultimately at issue here, then, is the categorical inability of Roman law to adequately express or translate customary forms of property, which are “neither public nor private because they are collective and indeterminate: neither absolute nor even exclusive since the same object can have many simultaneous masters and rights can be superimposed in any given situation.”84 Thus, unlike Savigny – whose attachment to the categories of Roman law means he is no more equipped than is Hegel for carving out a place for the customary rights of the poor – Marx traces the lineage of these customary rights back into ancient Germanic law: “little thought is needed to perceive how one-sidedly enlightened legislation has treated and been compelled to treat the customary rights of the poor, of which the various Germanic rights can be considered the most prolific source.”85 Now there is no doubt Marx owes at least something to the German historical school, whose spokesman, Georg Beseler, broke with Savigny and the other “Romanists” in 1835 over the question of the sources of historical law.86 But for Marx, historical genealogy alone cannot serve as the basis for the customary rights of the poor. For rather than valorize an older national custom – and hence a “local” custom – to combat the effects of a universalizing Roman law, Marx asserts a universal customary right – one that would be “valid in all countries” – to combat the “one-sided” legislation grounded in an ostensibly universal Roman law.87 The question, therefore, is how Marx determines the legitimacy of universal customary right?
A careful reading of Marx’s article from October 27, 1842 in fact reveals a double foundation for the customs of the poor. Marx’s first justification for the customary rights of the poor is based on the specific nature of certain objects. For Marx, the modern legislative understanding of custom “overlooked the fact that there exist objects of property which, by their very nature, can never acquire the character of predetermined private property … by their elemental nature and their accidental mode of existence (durch ihre elementarisches Wesen und ihr zufälliges Dasein).”88 In addition to this naturalistic justification, however, Marx advances a second argument for legally justifying the customs of the poor. This second approach appears rather unexpectedly and abruptly in Marx’s article, as if it were a completely independent justification unrelated to the first and, on the whole, sufficient in and of itself. As Marx writes, “it is by its activity (in ihrer Tätigkeit) that poverty acquires its right.”89 The problem raised by the duality of Marx’s argument relates to the overall coherence of Marx’s critique, especially in terms of the potential articulation of these two perspectives: if the activity of the poor is, in itself, considered sufficient in terms of providing a foundation for their collective use rights, why invoke the particular nature of the objects of this activity at all? Unless, perhaps, the connection between the nature of the activity and the nature of the object upon which this activity is based is so close that the object is in fact the true foundation, since it determines the activity through which the poor “find” their rights? In other words, poverty is only able to ground its legal basis in activity because this activity is, in turn, anchored in the nature of its object. But were this the case, Marx’s use of the term “already” (schon) is somewhat puzzling. Moreover, Marx’s text goes to some length to establish a very direct relationship between the mode in which objects exist and the mode in which the “poor” exist as a separate class, thus raising the specter of a highly problematic double “naturalness” that relates to both objects and class, insofar as it is one’s class determination that puts one into contact with certain objects to begin with. For us, then, the simplest means of disentangling this complex argument is to separately examine each of these two attempts to legitimize the customary rights of the poor in the order in which they appear in Marx’s text.
To follow the first argumentative thread, we need to be clear that Marx’s entire approach is based on a very direct understanding of the relation between the “propertyless and elemental mass” and the elementary nature of objects (“their elemental nature and their accidental mode of existence”). In Marx’s article of October 27, this relationship is woven through an elaborate analogy that we will need to re-construct. While speaking of all those objects that inherently resist the Roman categories of property rights, and which accordingly fall within the definition of “occupation rights” (Okkupationsrecht), Marx writes:
[These] objects which, by their elemental nature and their accidental mode of existence, belong to the sphere of occupation rights, and therefore of the occupation right of that class which precisely because of these occupation rights, is excluded from all other property and which has the same position (die selbe Stellung) in civil society as these objects have in nature.90
Of course, we know that the law concerning the theft of wood refuses to recognize any such “occupation right” as enshrined in custom precisely because it prohibits the poor from collecting fallen wood.
Obviously, Marx’s invocation of an “occupation right” is not the same as the technical term found in Roman law.91 In Roman law, the concept of “occupation” refers to the act of materially appropriating an object that is susceptible to appropriation, but which has not yet been claimed. More precisely, it refers to taking possession of a thing without an owner (res nullius) with the intent to acquire ownership over said thing. This act of appropriation may apply to things as different as immobile or mobile property formed by the force of nature, wild animals caught by hunting or fishing, a portion of the royalties the state grants an “inventor,” objects appropriated during war, objects abandoned by their former owners, etc. “Occupation,” in this sense, requires two distinctive elements: first, the corpus, which consists in materially acting upon a thing; and second, an intentional element or animus domini, which is nothing other than the will or intention to become an owner or to acquire property.92 This Roman notion of an “occupation right” was more systematically developed over time, especially in the seventeenth century. For instance, in Chapters 3, 4, and 5 of his De jure belli ac pacis (1625), Hugo Grotius expressly distinguishes between three “original” modes of acquisition, which are the three ways in which one might acquire a thing without a previous owner: occupation, specification, and accession. Grotius defines occupation as the “right of first occupant,” a definition in which possession is effectively equated with property. Grotius’s intent here was to define original, exclusive property as issuing from the rights of the first occupant. Grotius’s approach presupposes an originary state in which the world itself was a res nullius of some kind. He then imagined the fiction of universal consent, or the tacit agreement amongst all men, by virtue of which exclusive right over a thing would be conceded to the first occupant.
In 1842, however, during the debates in the Rhine Provincial Assembly, the term “occupation” referred to the act of gathering dead wood – it did not refer to the taking possession of something under the aegis of a well-defined notion of intentionality: the dimension of animus domini seems to be lacking here (at least in the sense of a desire for “property”), and of course the “undefined” character of the medieval category of property as such meant that the dead wood was not really a case of res nullius. But this unusual use of the notion of “occupation” aside, what is especially original in Marx’s critique is the homology he evokes between this “occupation right” and the social position of the poor as enunciated in the passage cited above: the impoverished masses occupy the “the same position in civil society” as does fallen wood within nature, and it is this positional identity or homology that, in the final analysis, justifies the “occupation right” the poor exercise over these objects.
How should we understand this homology? As we have already seen, the position of the poor is, above all, characterized by their absolute destitution, which is manifest in terms of their complete lack of property – in the strict sense of the term according to modern legal categories. In the first of his articles on the theft of wood, written on October 25, Marx posits a universal customary right for “the poor, politically and socially propertyless many,” or the same group he describes later in the article as the “propertyless and elemental mass.” But now, significantly, he also introduces a dimension of conflict or war between what he refers to as the “natural animal kingdom” and the “spiritual animal kingdom”:
Under feudalism one species feeds at the expense of another, right down to the species which, like the polyp, grows on the ground and has only numerous arms with which to pluck the fruits of the earth for higher races while it itself eats dust for whereas in the natural animal kingdom the worker bees kill the drones, in the spiritual animal kingdom the drones kill the worker bees, and precisely by labour.93
While it is possible to interpret this opposition as borrowed from the very similar opposition between the workers and the idle parasites in Saint-Simon’s Parabola (1819),94 what is more interesting in this passage is how we begin to see the notion of a “universal class,” which is at the same time a “non-class,” begin to take shape, insofar as this universal class is the product of the dissolution of all the “particular estates” (Stände) in civil society. In other words, because this class is the victim of an absolute injustice, it possesses “a universal character because of its universal suffering.”95 Marx’s article from October 27 then confirms and reiterates this negative universality of non-ownership and non-belonging by opposing “the wrong of the estates” (das Unrecht der Stände) to the “the right of those without social estate” (das Recht der Standeslosen).96 The universality of the impoverished class is thus, strictly speaking, merely the counterpart of its “elementary” condition. It is its negative counterpart. Before Marx explicitly endows a sense of universal destiny upon the impoverished class – the idea that the task of universal emancipation falls to those who possess only themselves and their labor – the universality of non-ownership described by Marx in these texts rather constructs a certain “kinship” between the impoverished class and nature.
This kinship, however, does not concern nature as a whole – in the sense of all of its products – rather it only concerns that which is “elemental” or “accidental” in nature, which is precisely the case with fallen wood. In a striking and original manner, Marx directly links “physical poverty” with “human poverty,” which is to say social poverty:
Fallen wood provides an example of this. Such wood has as little organic connection with the growing tree as the cast-off skin has with the snake. Nature itself presents as it were a model of the antithesis between poverty and wealth in the shape of the dry, snapped twigs and branches separated from organic life in contrast to the trees and stems which are firmly rooted and full of sap, organically assimilating air, light, water and soil to develop their own proper form and individual life. It is a physical representation of poverty and wealth. Human poverty senses this kinship and deduces its right to property from this feeling of kinship. If, therefore, it claims physical organic wealth for the predetermined property owners, it claims physical poverty for need and its fortuity. In this play of elemental forces, poverty senses a beneficent power more humane than human power.97
This passage is remarkable in more ways than one. It is firstly remarkable in the way in which it articulates the opposition between the limbs and branches deprived of all organic life, and the living tree’s direct connection to nature’s organic elements, which Marx compares to the opposition between poverty and wealth: indeed, the opposition through which nature illustrates the analogous opposition between poverty and wealth is nothing less than the stark contrast between the living and the dead – or more precisely, the opposition of inert, organic matter shorn of its connection to nature, and the vigor and force of organic life itself. The passage is also striking, however, in the way in which the opposition between physical wealth and physical poverty expresses or “represents” the opposition between social wealth and social poverty. In this way, there is a determinate homology established between the elementary or base essence of the branches and the elementary or base essence of the impoverished masses. Social poverty, in other words, occupies the same position in society as physical poverty occupies in nature, insofar as the rupture of the organic link is socially translated as the exclusion of the poor from the system of social estates: the limbs and branches that have fallen from the tree physically signify the most impoverished masses who have fallen to the bottom of the social ladder. And lastly, this passage is striking in a third sense by virtue of the natural character of the affinity or kinship that, for Marx, is felt or registered between the socially poor and the physically poor: “Human poverty,” writes Marx, “senses this kinship (fühlt diese Verwandtschaft) and deduces its right to property from this feeling of kinship.”
Does this affinity on the part of the poor constitute a legitimate basis for claiming a right of ownership that was actually practiced by the impoverished masses? Is it solid enough to ground what Marx identifies as an “occupation right”? In the first instance, the basis for this claim is nothing like the conscious will or reason of the subject who wants to become the owner of something as of yet unowned. Rather, Marx’s homology is more similar to a kind of “legal instinct” (rechtlichen Trieb) or an “instinctive sense of right” (instinktmässiger Rechtssinn) that makes the poor feel an immediate kinship between the physical poverty of the fallen wood and their own social poverty. We are now at some distance from the Hegelian concept of law: not only, as we have already seen, does Hegel distinguish in his Philosophy of Right between the rational form of law and the informal collection of customary rights, but he takes great care also to delineate how “only animals … have their law as instinct,” whereas “human beings alone have law as custom.”98 Marx is undoubtedly closer, in this respect, to Savigny’s insistence on the subterranean and invisible source of law,99 with the proviso that Marx does not invoke the immemorial foundation of popular beliefs and practices (as Savigny does) but rather speaks of a naturalistic, almost animal-like “instinct” that discloses the inhumane conditions of those, in society, who are deprived of all property and legitimate social belonging – in other words, those for whom existence is based on “a mere custom of civil society” and is not recognized “in the conscious organization of the state.”100
This recourse to a legal instinct of the poor offers another advantage in terms of justifying the all-important opposition between the customs of the poor and the customs of the privileged. The notion therefore helps resolve the thorny question about the conflict between the different kinds of customs. For if we are confronted on all sides with the undeniable fact of ancestral customs, then the criterion of seniority, as it were, is of no real value. If these two kinds of customs – “good” and “evil” – are radically opposed, it is because the customs of the aristocracy, while still customs, are not rights – in fact they are “wrongs” (Unrecht) and contrary to reason – while it is the customs of the poor that conform to “rational law.” But despite their injustice, and despite their contradiction with the universality of law, the customs of the aristocracy have nonetheless been codified into existing law, even though they are fundamentally irrational, while the customs of the poor, on the other hand, are still waiting to be recognized by the law despite their complete compatibility with the universality of law as such. Worse still, the customs of the poor are daily threatened in their very existence by legislation dictated by the corrupt logic of private interest. However, contrary to all expectations, the customs of the poor are not in the final analysis derived from their “rationality,” from the fact that they are elaborated by reason as human faculty or proceed from an act of will enlightened by reason, but rather they come from the immediacy and spontaneity of an “instinct.”
One could argue against Marx’s critique that the customs of the privileged are also the product of a certain “instinct.” But if the customs of the aristocracy are based on a kind of instinct, it is nothing other than the “blind, immoderate, one-sided” and “lawless natural instinct” which, as mentioned above, is precisely the kind of private interest enshrined in the law on the theft of wood. It is therefore fundamentally different from the legal instinct attributed to the poor. For insofar as the instinct of the poor does not meet the criteria of intentionality enshrined in Roman law (animus domini), the instinct of the poor is rather “something like an instinctual animus proprietarii that, coupled with natural needs, makes it possible to speak of the juridical nature of things.”101 For if, as Marx puts it, human poverty “claims physical organic wealth for the predetermined property owners, it claims physical poverty for need and its fortuity.”102 It is revealing, here, that Marx’s statement concerning the feeling of kinship between physical poverty and human poverty inspires in the latter a clear sense of separation between what belongs to the forest owner and what by chance relates to the needs of the poor: the physical-organic wealth of the living tree relates to the right of those who, through the formal intentionality of premeditation, are constituted as dominus, but the physical poverty of the fallen wood relates to the right of those who must satisfy a natural need imposed upon them by circumstance, the latter of which is all the more imperious inasmuch as the lowly condition of the poor deprives them of any power over the means to satisfy their needs.
What we are left with here is the idea that the affinity felt between social poverty and physical poverty is an affinity between two kinds of chance or hazard of a natural kind: the hazard of precarious need, on the one hand, and the hazard of fallen wood as determined by the force and direction of the wind, and the more or less exposed position of the tree in relation to this force, etc., or what Marx calls the “fortuitous operation of elemental forces (der Zufall der Elemente), which take away from private property what the latter no longer voluntarily forgoes.”103 If human poverty instinctively feels a “beneficent power” in this “operation of elemental forces,” it is precisely because this unintentional and unpremeditated movement manages to triumph over the deliberate will of the dominus by snatching from the latter that which it has no intention of renouncing. For unlike the “alms distributed in the street,” the “alms of nature” are not a product of charity. The fortuity of the elements thus lies before the fortuity of need to which poverty is enslaved, it and provides, unintentionally, the means to satisfy this need solely through the only violence the will of the private forest owner encounters. However, if the fortuity of the elements is perceived as a “benevolent force” by those who suffer the fortuity of need, the same cannot be said about the arbitrary nature of social privilege. While it is true that this arbitrariness is also a matter of chance, this “chance” is not natural, especially when it comes to the chance of birth that distinguishes the aristocracy from the commoners. Marx’s formulation thus very carefully distinguishes between the two forms of chance and, consequently, opposes “social chance” to the two related forms of natural chance: “the fortuitous arbitrary action of privileged individuals is replaced by the fortuitous operation of elemental forces.”104 The term “arbitrary” here is a translation of the German Willkür, and the English word “arbitrary” unfortunately does not have the advantage of expressing the notion of Will, or “will,” at the root of the German word. Were we to take this into account, however, Marx’s assertion becomes much clearer: far from proceeding from a “legal instinct,” the arbitrary pretentions of the privileged are a function of the Willkür, which means that the “chance” of their arbitrariness is really the caprice of their will.
The remarkable coherence of Marx’s argument now becomes clear: if the instinct of the poor is legally justified, it is because it opposes the arbitrariness of a will – i.e., that of the private owner – and thus the poor rightly see in the “natural elements” a force that aids them in their struggle. In other words, the legal instinct of the poor is not a substitute for a failed or missing animus domini; it cannot even be said to be an “instinctual animus” at all – which of course is a contradictory notion insofar as the Latin term animus legally signifies an intention that proceeds from a will – but rather it legitimizes an “occupation right” that radically challenges the very merits of animus domini insofar as it shows how the latter is itself devoid of all animus. Thus the pivotal role played by this “legal instinct” comes into clearer focus: its function is precisely to adjust or modify the natural existence of a class subjected to need as a result of its radical deprivation through the very naturalness of the thing or object coveted by this need. In other words, the instinct is a mediating term that guarantees the compatibility between the customs of the poor and the “legal nature of things.” It is therefore through the homology between the social position of the poor and the physical position of the fallen wood that the customs of the poor become most meaningful.
But can this juridical naturalism be readily reconciled with Marx’s assertion that “activity” is the second foundation of the customs of the poor? Does this kind of assertion not belong instead to something we might contrastingly call a “practical legalism”? Let’s re-examine the misleadingly brief phrase in which Marx abruptly introduces this activity-based justification for the customs of the poor, but now in conjunction with the following phrase in which Marx again discusses the collection of fallen wood: “but it is by its activity (Tätigkeit), too, that poverty acquires its right. By its activity of gathering (Sammeln) the base class of human society imposes order (ordnend) upon the base products of nature.”105 On the basis of this second phrase, we are encouraged by Marx to understand the right of the poor as directly derived from the activity of gathering, as an activity that orders the products of nature. But what does Marx mean exactly by “gathering” (Sammeln)? In the first instance, this activity consists in simply separating dead wood from the living trees, which in turn prevents the putrefaction of the wood accumulated on the forest floor from hindering the growth of the forest. It thus contributes to the health of the forest, despite the fact that this is not the direct purpose or end pursued by the poor. Immediately after subsuming this “gathering” under the concept of “activity,” Marx enumerates a number of other cases in which he uses the same terminology: “The same thing holds …” (ähnlich verhält es sich). He first mentions the case of natural products that grow in the wild and whose possession is purely a matter of accident; it is “only because of their unimportance [that they] are not an object for the activity of the actual owner (keinen Gegenstand für die Tätigkeit des eigentlichen Eigentümers bilden).106 Marx illustrates what he means through the example of wild “bilberries and cranberries” later in the article, which reinforces his point about the absence of activity on the part of the owner in relation to these products. It is legitimate, for Marx, that objects that are not the activity of the private owner necessarily become the “property” of those who make them objects of their own activity (harvesting wild fruit, in this case).
The same rationale can be applied to cases of “gleaning,” mentioned by Marx immediately afterward. It should be noted from the outset that gleaning is a traditional use right in relation to the products of agricultural labor: after the harvest has been completed, custom allows the most impoverished to collect what remains in the fields, such as straw, grains, etc. “Gathering” is therefore an activity and a right through which, in different forms (collecting dead wood, gathering wild fruits, collecting straw and grains, etc.), the customs of the impoverished acquire legal unity: neither the dead wood extracted from the living forest, the straw and grains left over after the harvest, nor berries growing in the wild are objects of the owner’s activity. Rather all these “products” are the objects of the activity of the poor.
Do we not see, in this idea of legal justification through activity, a trace of the Hegelian theory of labor in which activity is viewed as a “constituent moment in the right of ownership”?107 Not necessarily: for it would seem that the concept of labor in Hegel’s theory is much narrower than the notion of activity we find in Marx’s 1842 article. As Hegel writes in the first section of his Outlines of the Philosophy of Right devoted to abstract law, the concept of labor presupposes a relation between the subject and its object such that the subject, understood as embodying “free will,” refers only to itself in its relation to the object. This concept is clearly too dependent on the categories of Roman law for it to apply to the situation analyzed by Marx. There is, however, a closer approximation to Marx’s concept of activity here, one that is less surprising than it may at first appear: namely Johann Gottlieb Fichte. For Fichte advances a rather original theory of property rights in his Foundations of Natural Right (1796) and The Closed Commercial State (1800), according to which every property right is “an exclusive right to a determinate free activity” and, thus, by no means an exclusive right over the possession of things.”108 This free activity, as Fichte explains, can be determined “either solely through the object that it acts upon” or “only through itself, through its own form … without any regard to the object that it acts upon,” or, finally, by both at the same time, which is to say “through its own form and through the object that it acts upon.” Free activity, for Fichte, is thus understood as “the right to undertake exclusively a specific act upon a certain object, and to exclude all other men from the same use of the same object.”109 It is therefore only “figuratively and derivatively” that one can call the object itself – like a field, for example – “the property of the one who has been granted the title of right. The exclusive right of the farmer to cultivate grain on this certain piece of land is of such a kind.”110 Fichte thus offers an ingenious and powerful justification for the “right of grazing” on another’s field: the right of the husbandman, according to Fichte, “does not curtail the right of another to put his herd to pasture on the same land.”111 A footnote clarifies that grazing rights “may be quite uneconomical, but a trespass of another’s property it is not,” insofar as “the property right depends only on treaties, and, where explicit treaties cannot be demonstrated, on acquired possession and established tradition.”112 The purely political character of this position is related to the fact that “in our theory there is no property of the land,” at least insofar as one understands the phrase “a property of land” and not “a right that is exclusively one’s own to a certain use of the land.”113 But since property rights are never anything but a use right proceeding from free activity, no class of society (landowners or the aristocracy) can claim to be “its true owners,” least they be guilty of an inexcusable act of appropriation: “the earth is the Lord’s; to man belongs only the ability to cultivate it and use it in a purposeful fashion.”114 As a result of his determination of property right as delineated by space and time within the sphere of activity, it is perfectly conceivable that the same object could give rise to different rights held by different persons, without becoming a source of dispute or conflict.
We can immediately see what a Marx familiar with Fichte115 could draw from Fichte’s uncompromising criticism of all the forms of property reification that characterize property as an exclusive right to things and over things. This criticism could easily be used to critique the views of Kant, Savigny, and even Hegel himself.116 From the moment in which the right of property is transformed into a use right that does not prejudice the rights of other users, one can perfectly account for the multiplicity and overlapping character of rights enshrined in custom: insofar as they are the object of the forest owner’s activity, the living trees indisputably belong to the owner. But this does not in the least prevent the poor from exercising their use rights over the fallen branches and other forms of dead wood, since these parts of the tree, which nature has already separated from the living tree, are not the objects of the owner’s activity but the objects of the activity of the poor. And of course the same rationale applies to the wild fruits growing in the forest, or the straw and grain left over after the end of the harvest. Ultimately, it is the distribution of use rights according to the criterion of activity that justifies ownership, as opposed to the right of exclusive possession over a thing qua thing, an unintelligible right that brings us back to the figure of the absolute master (dominus).
In any case, this recourse to the Fichtean concept of “activity” is inscribed here within a complex argument aimed at revealing the double foundation of the customs of the poor: first, these customs are justified by virtue of the kinship the poor instinctively feel with nature, and secondly, the customs are justified by the exercise of activity over these objects. This double justification is, however, not without its difficulties. For instance, if it is relatively easy to understand how fallen or dead wood physically “expresses” human poverty, it is difficult to see how the same could be said about wild fruits growing in the forest or the objects of gleaning. For it would seem that “elemental chance” does not play a very large role in their existence, insofar as the wild fruits, for instance, continue to grow and no specific or determined intention has caused them to fall to the ground; and whereas the berries are an organic product, the straw and grain are the byproducts of agricultural labor. Is it still legitimate to invoke a “legal instinct” on the part of the poor, and the associated feeling of affinity between these products and their own experience of social poverty, in all of these diverse cases? In order to do so, we must profoundly modify the spirit of Marx’s homology. For can we seriously maintain that there is always an identity between the position occupied by these products in nature and the position of the impoverished class in society?
This immanent difficulty of Marx’s argument is particularly visible when Marx moves on to an account of the debate between certain deputies in the Rhine Provincial Assembly about the harvesting of wild bilberries and cranberries. A deputy from the towns argues against the provision in the law that equates the gathering of berries with theft by arguing that this activity allows the children of poor families to help provide for the household. Another deputy replies that the berries in his region have already been commercialized and are shipped by the barrel to Holland. Marx comments on this dispute in the following terms:
In one locality, therefore, things have actually gone so far that a customary right of the poor has been turned into a monopoly of the rich. That is exhaustive proof that common property can be monopolised, from which it naturally follows that it must be monopolised. The nature of the object calls for monopoly because private property interests here have invented this monopoly.117
What first of all emerges from this passage is the obvious sophistry by which “some mercantile souls” allow themselves to deduce a “must” (muss) from “can” (kann) – i.e., we are able to monopolize a common good for the benefit of the rich since we have already in fact done it in one region, and therefore this common good must be monopolized everywhere. But stalking in the background of this argument we find the same juridical naturalism that inspired the first basis for justifying the customs of the poor. The fruits that grow wild in the forest constitute in themselves a “common good,” a form of nature that would not be affected by the unnatural transformation that makes this good the monopoly of the wealthy. Consequently, any attempt to argue that the “nature of the object” requires private appropriation by a dominus in the person of a landowner, opens up the inverse claim that the same nature requires its recognition and defense as a common good. This is why a “wise legislator” should be concerned about depriving the legal instinct of its negative character by “giving the latter a positive sphere of action”:118 it is once again the legal instinct that is summoned to adjust the customs of the poor to the “legal nature of things.” This form of justification thus borrows from Savigny and Beseler, but not from Fichte. But should we not reverse this justification in order to ground legal legitimacy on the fact that gathering, like collecting, is an activity of the poor, and not an activity of the private owners? In this case, the emphasis is placed on the very fact of the activity, independent of the heterogeneous nature of the products that are the objects of this activity (dead wood, wild berries, or the byproducts of agricultural labor). This is a form of justification inspired by Fichte, and not by Savigny or Beseler.
While Marx undoubtedly succeeds in introducing an important dimension of conflict into our understanding of the customs of the poor – in terms of their opposition to the customs of the privileged and the prerogatives of private property as sanctioned by modern law – he fails to ground his opposition on a solid legal basis. We must therefore conclude that Marx considers custom, in contradistinction from all legal naturalisms, as a “contradictory social construct.”119 In other words, Marx’s 1842 articles on the theft of wood failed to clearly distinguish “naturalism” from “practicism.” But Marx does help us ask a very important question: namely, how can we theorize customs in terms of both their conflicted and constructed character at the same time? For, on the one hand, what remains of the irreducibility of custom, in contrast to laws pronounced by a legislator, if the former are also “constructions”? Is it possible to conceptualize something like a “constructed custom” without voiding the concept of custom of all its meaning? For even without subscribing to the organicist ideology of common law, it is a little difficult to disregard the fact that one does not really decide to adopt a custom the same way one decides to adopt a law. Perhaps it is necessary to dissociate the idea of “construction” from that of decision or will? But in that case, is it not necessary to positively determine the mode (or modes) of this legal constructivism? For if it is merely a question of juridical construction then resolving the difficulty is not really much better than avoiding the question entirely. How practical, then, is Marx’s call for a universal customary right of the poor? For what is also problematic here is not merely the legal opposition between the customs of the privileged and the customs of the poor, but also the juridical unification of different customs of the poor. It is difficult to understand how the radical heterogeneity of all these customs might be overcome, and to know to what extent Marx’s notion of universality would be something other than simply the lowest common denominator.
For legal theorists, the notion of the “communal” effectively designates two legal difficulties that are sometimes hard to distinguish: on the one hand, it designates a right of community inhabitants to the ownership of certain lands, and on the other hand it refers to collective uses that are exercised on private property, but which give the inhabitants rights over certain products, the most important of which is usually the right to access private grazing pastures for all inhabitants once the harvest has been completed. It is not that the interested parties were incapable of distinguishing between these two sorts of rights, but rather that they refused to dissociate them practically whenever the commons were threatened. As Nadine Vivier notes, “the inhabitants knew very well how to dissociated these rights, but they tended to make them indissociable whenever they felt under attack.”120 Vivier’s remark about these two notions of the term applies to both France and Germany. In Germany, however, the term differed insofar as Allmende was used in the north, and Gemeinheit was used in the south. But, as in France, the definitions constructed by jurists did not refer exclusively to land that belonged to a local community, nor exclusively to the collective enjoyment of the inhabitants of a community to land that was not theirs. This relative indeterminacy meant jurists had to take both aspects of the term into account at the same time. Appearing in Germany in the mid- to late Middle Ages, the “commune” (communaux) based its existence on the community’s claim to regulate its members’ exploitative relationship to the surrounding environment; relatedly, the concept of the “commune” included the right to participate in this exploitation on both private land and land owned by the community.121
The inherent duality of the legal concept explains why collective practices in the communes were so varied across different regions of the same country. In France alone there was tremendous regional diversity that persisted underneath the unifying legislation that blanketed the country, and these differences reflected different behaviors within the various communes. In the center of the Paris Basin and the Aquitaine Basin, for instance, communes were very small and did not constitute centers of collective life; in the regions of the west and in the Massif Central they were considered mere annexes of private property; in the north and north-east, in the Jura and the Alps, however, they were considered to belong to the entire community, and so the community established rules for managing common lands for the benefit of all.122 Thus, whenever the communes were considered appendages of private property, the particular law of the land prevailed; but when the land was open to all inhabitants, it was the rights of the person that prevailed.123 How, under these circumstances, could such diverse practices be unified under common rules, especially when it is not possible to resort to legislative activity to establish a universal customary law? More seriously, who would be the one or ones charged with the formidable task of “inventing the new juridical language” in which this law would be formulated? If the poor were dispossessed of rights established in their name whenever this task was left to professional lawyers, should it not be up to the poor themselves to “make and become the direct interpreters of their law?”124
Under these conditions, the hope of establishing such a customary right of the poor seems destined to be little more than a pious wish. For in the final analysis, it is the very notion of “poverty” that, in its indeterminacy, discourages the advancement of such a project: the poor were certainly excluded from the right of ownership, but this exclusion was itself capable of taking various forms. Soon, however, the figure of the proletariat began to compete with the category of the poor, sometimes even assimilating it, such that even the purely negative criterion of propertylessness would become itself insufficiently discriminating. As early as 1843, the expression “the universal class” would designate not only the poor but also the propertyless who, condemned to sell their labor power, were trained in the factory and learned about collective struggle beneath the merciless whip of accelerated technical and industrial progress. Within this new historical perspective, the “absolute poverty” of propertylessness will prompt the demand for collective ownership over the means of production, rather than the perpetuation of a collective use right that did not question private property itself. Retrospectively, the resistance of the poor in the face of the expropriation of their communes will eventually come to look like a desperate attempt to turn back the wheel of history, or at the very least hinder its forward movement.
This arrival of the proletariat ultimately explains why Marx’s 1842 critique remained relatively obscure in the tradition of historical materialism. Yet the reference to the Fichtean conception of right as activity may appear, from this perspective, to be philosophically promising for certain theorists of socialism. In Chapter 3 of his book Les Origines du socialisme allemande (The Origins of German Socialism), titled “Le collectivisme chez Fichte” (“Fichte’s Collectivism”), Jean Jaurès underscores the potential of this conception in which all direct forms of ownership over things is subordinated to the sole right of applying one’s activity to an object. From his reading of Fichte, Jaurès drew the following decisive conclusion: since it is impossible to reserve part of the land or of industry for each individual citizen, it is up to the state to guarantee everyone the right to activity, which is to say the right to work. In this fashion, ownership rights can only be conceived in terms of a right to work: “But since ownership is free activity applied to one object or another, toward one design or another, everyone who has stable and guaranteed work will be an owner; the right to work is the real property!”125
This promotion of the state as guaranteeing the right to work does not, however, prevent the author of the monumental Histoire socialiste de la Révolution française (Socialist History of the French Revolution) from making several critical assertions about older use rights, such as the right of gleaning or the right to grazing pasture, and all in the name of historical progress. In Volume 1 of the above-mentioned work, which was devoted to the Constituent Assembly, Jaurès comprehensively shows how the peasant proprietors were caught between “feudal suzerainty” and “a kind of elementary communism,” between the powerful aristocratic nobility and the “weak and poor communism of the village.” He clearly sees that the 1766 Edict of Closure, which granted owners the right to enclose their land, directly challenged the poor’s right to glean, who were henceforth condemned to work as cheap laborers during the harvest.126 But he also deplores the “perpetual invasion and occupation” of the lands of the peasant proprietors, who were compelled to abandon “ears of corn left to the ground and the thatch, more or less high, to the inhabitants of the communes.”127 Ultimately, Jaurès vigorously protests the confusion between “the magnificent modern communism of the socialist proletariat” and the “miserable and rudimentary communism” that found expression in the right to glean. He unequivocally condemns this communism of the poor as a brake on the progress of humanity:
Modern communism will put all the forces of modern science in the services of all the free peasants: and I recognize, on the contrary, that the ancient customs, such as gleaning, that struggled at the end of the eighteenth century against the growing intensity and growing exclusivity of individual property, were often contrary to progress. Prohibiting the use of scythes, on the pretext that the sickle leaves higher stubble for the gleaner, prevents the extension of natural or artificial meadows, and hinders the raising of cattle, and all under the pretext that the gleaners have a right to a determined surface to glean, is to prolong routine and misery: thus the individualistic harshness of the lords, farmers, bourgeoisie, and wealthy laborers better served the future of humanity than the quasi-mendacity and somnolent routine that the poor wanted to maintain.128
This assessment is less categorical when it comes to the right of grazing pasture, insofar as the conflict no longer opposes the “poor of the village” to the “rich laborers of the third estate,” but rather concerns the “increased egoism of the noble and the monk” or, in other words, “idlers.” For Jaurès, the meadows and the forests seem, “on an earth now shredded by individual property, the supreme asylum of primitive communism.”129 But shortly afterward he emphasizes the weakness of the third estate as it takes part in restoring the communes to its inhabitants who were dispossessed by the greedy lords: “the individual, bourgeois, and peasant conception of property enable the Third Estate to maintain or even reestablish, against the monopolization of the nobles, the old, traditional, and rudimentary communism: it did not allow the Third Estate to obligingly study and organize, with zeal, the scientific and intensive exploitation of this vast common domain.”130 Jaurès’s position does not waver: the past is always judged by its contribution to the preparation for the future, whether capitalist or post-capitalist.
Nothing could be more eloquent in this respect than Jaurès’s assessment of the plan drawn up by the Committee for Agriculture for the definitive division of communal property, which was a prelude to the law passed on June 10, 1793. In Volume IV of his Histoire, titled Le Gouvernement révolutionnaire (The Revolutionary Government), this assessment immediately precedes an objection:
Sometimes socialists who believe in the rehabilitation of l’Ancien Régime as a means of critiquing bourgeois society claim that the Revolution, by dividing the communal districts and subdividing common property into individual property, has robbed the poor.131
In contrast to this view, Jaurès argues that the communal regime was “absolutely oligarchic” insofar as it was the wealthy, “alone or almost alone,” who benefited from this arrangement, and that “almost everywhere, the wishes of the poor, of the proletarians, was very clearly in favor of partition.”132 After noting the position of Souhait, the only deputy in the convention who resisted the committee’s final plan, Jaurès states that Souhait only asked for the partition to be temporary, not definitive, for the sole purpose of the ensuring that the poor do not “fall into a state of total misery, despair, and revolt.” It is through this debate, then, that Jaurès argues, “no one seriously proposed a truly communist use of communal goods.”133 Jaurès then concludes by speaking very favorably of the Committee of Agriculture’s plan: at least this plan does not try to “disguise, under the semblance of communism, a kind of charitable foundation perpetuated through the ages” but wants instead to “multiply individual properties”; it is precisely in this respect that the plan is superior to Souhait’s position, “even from the socialist point of view.”134 Then, after invoking the “agrarian communism” of the future, Jaurès definitively writes:
It will not be arrived at by the extension of a vague domain disputed over by the routine egoism of individual owners, or conceded as charity to the poor beneath the full rights of property. It would have been better, even for the great communism of the future, to have added to the immediate strength, independence, and revolutionary élan of rural democracy and the agricultural proletariat, rather than try to prop up a sterile parody, or maintain a derisory sketch, of an inferior and degraded communism.135
As we have seen, this perspective is nothing like that adopted by Marx in 1842. For Marx, it was not at all a question of judging customary practices by situating them within the horizon of historical necessity, nor of deciphering an activity-based right as guaranteed by the state, but of seeking a legal basis for these customs independent of established state law. However, the working class was soon after invested with an emancipatory mission that blunted this entire line of thought, and so the question we are left with now concerns the formation of a properly proletarian law under the conditions of a struggle from within the very interior of contemporary bourgeois society itself.