This chapter will contain just a few words. They are, however, indispensable if we are to assign ‘law’ (about which we have already spoken in the form of a ‘descriptive theory’ in Chapter 5) its proper place.
It seems that, in the tradition of Marxist theoretical research and scholarship – especially in the USSR from 1917 until the ‘disappearance’ of specialists, some of whom were quite remarkable, to judge by the questions it was their merit to pose – there was a great deal of discussion about whether law belongs to the superstructure or should, rather, ‘be ranged alongside the relations of production’. This is an altogether pertinent question.
If the explanations just offered are well founded, we can propose a schematic but clear, precise answer to it, at least in principle – for this crucial question warrants lengthy theoretical analyses, which, if we were to go into detail, could only be conducted on the basis of empirical (concrete-historical) investigations and analyses.
In several passages of Capital, Marx shows that the nascent constitution of new relations of production, when they are gradually forming at the heart of the dominant relations of production, hence under them and, consequently, in opposition to them,1 is the object of a protracted process that, for a long time, remains a de facto process, without being juridically recognized as lawful. There can be partial legal recognition of constituted practices, even at the heart of the dominant relations of production, which create a localized, narrowly circumscribed place for the new relations of production or exchange – on the absolute condition that those new relations are limited and subordinated to the dominant relations of production. That is what happened under ‘feudalism’, when bourgeois law spread to certain limited sectors of the social formations in question (for instance, mercantile law, followed by the ‘law of the royal manufactories’ and, still later, of private manufacture). The promulgation of laws belonging to a new, partial system of law antagonistic to feudal law simply registered a fait accompli: that of the real, undeniable and irreversible consolidation of new relations of exchange and production in social formations dominated by very different relations of production.
Let us note, for historians – who have in fact often recognized this phenomenon – that the renaissance of Roman Law that began in the twelfth and thirteenth centuries (Marx points out the theoretical interest of this fact in the closing lines of the Introduction – unpublished in his lifetime – to A Contribution to the Critique of Political Economy, issued in 1859) had its roots in ‘problems’ that were at once economic (the development of commodity exchange) and political (the references of the Legists, that is, the ideologues of absolute monarchy, to Roman Political Law). This conjunction is a sign there is no mistaking, and one that surely tells us something about the relations between law and the state.
Without claiming to draw the slightest direct general conclusion from these historical facts underpinning a theoretical hypothesis of Marx’s, we will content ourselves with making the following remarks.
We have seen the singular status of the bourgeois law at work in capitalist relations of production. It is clearly meant to regulate and sanction precise economic practices above all (in the guise of its different specialized codes, it regulates other practices as well): practices of exchange, that is, the purchase and sale of commodities, which presuppose – and depend on – property law and the corresponding legal categories (legal personhood, legal freedom, legal equality, legal obligation).
We have seen that bourgeois law tended and still tends, by virtue of an imperious necessity, towards formalism and universality, in spite of all the obstacles (increasingly frequent and insurmountable) that the process of formalization and universalization encounters.2
We have seen that formalism and universality were only possible on condition that law is abstract, that is, actually abstracts from all content, and that this abstraction from all content is the concrete condition for the effectivity of the law with respect to its content, the very content from which it necessarily abstracts.
Finally, we have seen that the law is necessarily repressive and that it inscribes the sanction of law in law itself, in the form of a penal code. This showed us that law could function concretely [réellement] only on condition that there exists a concrete Repressive State Apparatus that realizes the sanctions formally inscribed in penal law and handed down as sentences by the judges of the courts to which the infractions are referred. At the same time, however, we clearly saw that, in the immense majority of cases, law is ‘respected’ by dint of the simple combined interplay of legal ideology plus a supplement of moral ideology – hence in the absence of any direct intervention by the detachment of the Repressive State Apparatus specialized in the practical (physical, violent) realization of the sanctions inscribed in the penal code and pronounced, ‘in proper legal form’, by the ‘competent’ courts.
From these observations, we may deduce a few propositions with which we can initiate the transition from a ‘descriptive theory’ of law to the threshold of a proper theory of law in capitalist social formations.
1) Law formally regulates the interplay of the capitalist relations of production, since it defines proprietors, their property (assets), their right to ‘use’ and ‘abuse’ their property with complete freedom, and the reciprocal right to acquire property. As such, the concrete object of law is the capitalist relations of production3 insofar as it expressly abstracts from them.
A word of caution: an abstraction is always, exactly like a negation, determinate. Bourgeois law does not abstract from just anything, but, rather, from the concrete determinate object whose play, or, in other words, functioning, it is ‘charged’ with regulating: the capitalist relations of production.
We must of course not succumb on this point to the ideological illusion that allows magistrates or jurists to act, with a clear ‘moral’ or ‘professional’ ‘conscience’, as servants of the capitalist state. This is the illusion that since all subjects are declared equal and free before the law, and since the law is the law of freedom and equality, magistrates and jurists are the servants of freedom and equality, not of the capitalist state.4
2) Bourgeois law is universal, for the simple reason that in the capitalist regime the interplay of the relations of production is the interplay of an effectively universal commercial [marchand] law, since, in the capitalist regime, all (adult, and so on) individuals are subjects of law and everything is a commodity [marchandise]. Everything: that is, not only the products of social necessity that are bought and sold, but also the use of labour-power (a fact without precedent in human history that founds law’s pretension to universality on the very reality from which it abstracts). In Rome, slaves were commodities, but they were things, not subjects of law.
It is because capitalist relations of production force individuals who have been stripped of all means of production, who are, that is, ‘free’ of all means of production, ‘freely’ to sell the use of their labour-power as wage-workers, that proletarians are endowed, before bourgeois law, with the same legal attributes as capitalists. They are free, equal, free to alienate (to sell) their ‘property’ (in this case the use of their labour-power, since they ‘own’ nothing else), and also free to buy (to buy what they need to live in order to reproduce their existence as ‘owners’ of their labour-power).
The abstraction, formalism and universality of the law are therefore merely the official, legal recognition of the formal conditions regulating the interplay, that is, the functioning, of capitalist relations of production (and, by extension, of the sectors deriving from it: constitutional law, administrative law, military law – since it would seem that the law of privilege no longer exists … in this connection, one would do well to take a glance, if not at the Church, which has basically been subjected to the principles of bourgeois law, then at secular orders such as the Order of Physicians, the Order of Architects, and so on).5
3) But we have also seen that the law is necessarily bound up, first, with a specialized repressive apparatus that belongs to the Repressive State Apparatus, and, second, with bourgeois legal-moral ideology. On these grounds, law, which stands in a relation of determinate abstraction with the concrete reality known as the capitalist relations of production, stands at the same time in a relation of determinate abstraction (another, quite different modality of abstraction, to be honest) with another concrete reality known as the state apparatus, in two respects, repressive and ideological.
This reveals, we think, both another function of the state apparatus, and at the same time, perhaps, something that can help us define the status of the law.
It is clear that we can no longer consider ‘law’ (= the legal codes) in isolation, but must consider it as a component part of a system that includes law, the specialized repressive apparatus, and legal-moral ideology.
A specialized detachment of the Repressive State Apparatus (let us say, to simplify, the gendarmerie plus the police plus the courts plus the prisons, and so on) accordingly appears to us in a function that we need to determine more precisely, after everything we have said about the role of the state apparatuses in the reproduction of the relations of production. For this detachment plainly intervenes directly, not just in the reproduction of the relations of production, but in the very functioning of those relations of production, since it punishes and represses legal infractions of them.
Better, since the direct intervention of the specialized detachment of the Repressive State Apparatus is, albeit frequent and always visible, exceptional in the day-to-day functioning of capitalist relations of production, and since law regulates the ‘regular’ functioning of capitalist relations of production ‘on legal-moral ideology’ in the vast majority of cases, it can be seen that this legal-moral ideology intervenes not only in the reproduction of the relations of production, but directly and on a daily basis, indeed every second, in the functioning of the relations of production.
From this we can perhaps draw two conclusions without great risk.
1) We can see that, in a certain precise relationship, the reproduction of capitalist relations of production is ensured, within the functioning of capitalist relations of production themselves, and simultaneously with that functioning, both by the relatively exceptional intervention of the repressive state detachment specialized in legal sanctions, and by the constant, ubiquitous intervention of the legal-moral ideology that ‘represents’ it in the ‘consciousness/conscience’ of the agents of production and exchange, that is, in their material comportment.
2) This emboldens us to make the following proposition. If we consider all that was just said; if we bear in mind the fact that the law ‘functions’ primarily on legal-moral ideology, reinforced by intermittent repressive interventions; if, finally, we recall that we have upheld the thesis that every state apparatus simultaneously combines functioning on repression with functioning on ideology, we have solid reasons for thinking that ‘law’ (or, rather, the real system that this term designates, while also masking it, since it abstracts from it: namely, the law codes plus legal-moral ideology plus the police plus the courts and their magistrates plus the prisons, and so on) ought to be thought of under the concept Ideological State Apparatus.
However, we must add this proviso: the law is the Ideological State Apparatus whose specific dominant function is, not to ensure the reproduction of capitalist relations of production, which it also helps ensure (in, however, subordinate fashion), but directly to ensure the functioning of capitalist relations of production.
If our thesis is on the mark, it brings out a reality of the very first importance: the decisive role played in capitalist social formations by legal-moral ideology, and its realization, the legal Ideological State Apparatus, which is the specific apparatus articulating the superstructure upon and within the base.
Just as we earlier said that, in capitalist social formations, the scholastic Ideological State Apparatus played the dominant role in the reproduction of the relations of production, so we may now advance the thesis that, in the domain of what we shall provisionally call the practical ideologies, legal-moral ideology plays the dominant role. We say legal-moral ideology, but we know that, in this dyad, when it is a question of the operation of law, legal ideology constitutes what is essential, since moral ideology figures only as a complement, indispensable, to be sure, yet still just a complement.
We need to bear these last propositions in mind, including the sort of connection that is beginning to emerge between these two instances of dominance, each in its ‘sphere’ and role: that of the scholastic Ideological State Apparatus and that of legal-moral ideology. We will need these indications when we go back to our starting point, still in abeyance: the question of the nature of philosophy.
Now that we believe we have succeeded in defining ‘law’ as an Ideological State Apparatus that fulfils an absolutely specific function in capitalist social formations – now that we have thus answered our question as to the status of ‘law’ by showing that it belongs, not to the relations of production whose functioning it regulates, but to the state apparatus – we can and must say a few words about ideology in general.
1 Marx here refers to the emergence of embryonic forms of capitalist relations of production under feudalism.
2 These obstacles have become greater since the late nineteenth century. They have to do with 1) monopolistic concentration and 2) the effects of the class struggle: the capitalist class struggle (massive violations of constitutional law) and the workers’ class struggle (which has imposed various articles of a code that is a ‘monstrosity’ from the standpoint of the Civil Code: labour law).
3 Whenever we say ‘relations of production’, it should be understood that we mean ‘the relations of production and the relations deriving from them’, such as exchange relations, relations of consumption, political relations, and so on.
4 This does not mean, however, that one cannot invoke such-and-such an article of existing law as a guarantee against such-and-such an abuse, or that honest jurists cannot put their ‘science’ at the service of rightful claims [au service du bon droit], although they have always to act within the limits of the law.
5 [TN: ‘Law of Privilege’ is here intended in the sense of (feudal) Privata Lex. The Orders mentioned here have a kind of hybrid ‘legal personality’ in French law, which accords them the status of private entities charged with a public mission – the status of quasi-feudal corporations, in the view of some critics. See also Chapter 8, n. 21.]