Bob Fine on Law and Class – Part 1

This piece looks at the first section of the chapter by the same name in Capitalism and the Rule of Law a book consisting of a selection of papers from the January 1979 joint conference between the National Deviancy Conference and the Conference of Socialist Economics. By the way, I’ll be away for about a week so this post and the one below are to keep you going for some time.

Fine starts his paper by looking at E.P. Thompson’s critique of some left groups, castigating them for dismissing anything to do with the state could potentially be positive. However, Fine isn’t interested in them, rather the assumptions that underlie Thompson’s stance. He argues that

“For the basis of Thompson’s critique consists in an unflinching belief in the democratic character of the legal side of state power. He writes that law seems to him to be ‘an unqualified human good’, in that it ‘imposes effective inhibitions upon power’ and defends the citizen ‘from power’s all-intrusive claims’. No problem is raised over the form of bourgeois law itself, the only issue concerns the struggle against the intrusion of ‘class-bound procedures’ into the legal mechanism”(pg.30)

He goes on to argue that Thompson is stating that bourgeois law will form a basis for working-class power to develop from. To Thompson’s position he contrasts that of Engels, who argued that under communism law would disappear and that capitalist democracy, with bourgeois law and everything, complements the domination of capital. After quoting from Engels he says,

“The issue which these passages from Engels raise is that the bourgeois form of law is contradictory. Between two polar positions, between its dismissal as a mask and its elevation as an unqualified good, we need to understand the way in which law acts as a form of domination, the social basis upon which this form of power emerges and sustains itself, and thence the contradictory functions which it performs both for the rulers and the ruled, capital and labour.”(pg.31)

Fine, then discusses why he feels the form of law is of significance at that time. One is the question of law under Stalinism, and the second is the attacks on civil liberties and increases in police powers occurring at that time in Britain and elsewhere in Europe. He goes on to state:

“It is in this context, when the imperatives of capital accumulation and the class struggle have put into question the viability of the ‘rule of law’, and when we witness a movement toward the substitution of bureaucratic-police rule for social-democratic forms of power, centred around legality and parliamentary representation, that the issue of forms of bourgeois domination has emerged again with particular sharpness… it becomes imperative to differentiate between the forms of power through which the domination of capital is left mediated and secured… this emphasis on form poses its own dangers: that of neglecting the class content behind the forms of law; and of neglecting the significance of the erosion of legality for the imposition of new conditions of exploitation and accumulation.”(pg.32)

He then suggests that quite an apt place to draw from on these issues is Trotsky’s analysis of the rise to power of fascism in Germany and the transition to Bonapartism and then fascism and differences between these forms. He goes on to say

“…the significance of the form of law could not be separated from its content: namely, the class relations which constituted the foundation of the legal form; and the transformation of these class relations hidden behind the move first to ‘Bonapartism’, which relegated legality and parliamentarism to shadows of their former selves, and then to fascism which substituted for them brute force and police terror. The strength of Trotsky’s analysis was precisely to probe the links between these distinct forms of state power and the class relations which provide their substance. Trotsky, in the course of his extended critique both of those who identified social democracy with either Bonapartism or fascism, and of those who defended the spirit of the constitution as it elevated the bureaucracy above society, constantly searches for the class basis of these historical development.”(pg32-3)

After quoting an article of Trotsky’s (Fascism, Stalinism and the United Front) to further elaborate his point, Fine concludes his section with the following words.

“For Trotsky, the defence of the form of law could not be isolated from its content. Bourgeois law was not an absolute elevated above the conditions of civil society which gave it birth; but the expression of capital mediated by the independent organization of the working class. It was for this reason that it had to be defended against attack from the right and against indifference from the left as the political form necessary for the exercise of ‘proletarian democracy’ and for the transition to socialism.”(pg.33)

I have to say, I think Fine’s general point is really good. However, I think, although he states he isn’t making any ‘mechanical parallels’, it’s a little too much to exaggerate the attacks to civil liberties and increasing of police powers during the 70s and 80s to the coming to power of fascism in Germany, but the points regarding form and content which Fine makes through this I think are spot on. There is another point I want to take Fine upon which is the last sentence of the last paragraph I quoted. Whilst capitalist democracy is the most favourable political form for workers under capitalism, it is not ‘necessary’.

Marx and Engels on Crime, the State and the Paris Commune

Since I wrote this about a week ago, I actually have read a piece by Bob Fine which does talk about some of these issues - and I will comment on this at a later date. None the less the issues in this piece are still well worth discussion.

There have been several groups of criminologists who have purported to be Marxist Criminologists, many of whom have looked to Marx’s economic works, in particular Capital in search of the causes of crime. Some have even looked to some of Marx’s journalistic works. Hence why I find it strange that none (to my knowledge) have looked at Marx’s writings on the Paris Commune, in particular his work The Civil War in France.
It is in relation to this event that Marx and Engels made their one major alteration to the Communist Manifesto, which is, as Marx puts it in The Civil War in France, that “the working class cannot simply lay hold of the ready-made state machinery, and use it for it’s own purposes”. It’s relevance to the state, and thus to the criminal justice system makes it worth our attention. Moreover, the comments relating to the judiciary and the police in particular are of interest.
We shall start our examination, by first looking at Engels 1891 Introduction to the work. He briefly comments how the power of the state has come about, saying “Society had created its own organs to look after its common interests, originally through simple division of labour. But these organs, at whose head is the state power, had in the course of time, in pursuance of their own special interests, transformed themselves from the servants of society into the masters of society”.
A few paragraphs later, he discussed how the workers involved in the Commune dealt with this, saying “Against this transformation of the state and the organs of the state from servants of society into masters of society – an inevitable transformation in all previous states – the Commune made use of two infallible means. In the first place it filled all posts – administrative, judicial and educational – by election on the basis of universal suffrage of all concerned, subject to the right of recall at any time by the same electors. And in the second place, all officials, high or low, were paid only the wages received by other workers… In this way an effective barrier to place-hunting and careerism was set up…”
This is what Marxists mean by “…shattering of the former state power and its replacement by a new and truly democratic one…” This is extremely relevant in terms of how we see a new society emerging from the ashes of the old, what Engels is describing is a thoroughgoing democratisation of the state.
In Chapter 3 Marx describes the creation of the commune, saying “The Commune was formed of municipal councillors, chosen by universal suffrage in the various wards of the town, responsible and revocable at short terms. The majority of its members were naturally working men, or acknowledged representatives of the working class. The Commune was to be a working, not a parliamentary, body, executive and legislative at the same time. Instead of continuing to be the agent of the Central Government, the police was at once stripped of its political attributes, and turned into the responsible and at all times revocable agent of the Commune. So were the officials of all other branches of the Administration. From the members of the Commune downwards, the public service had to be done at workmen’s wages.”
He goes on to say “The judicial functionaries were to be divested of that sham independence which had but served to mask their abject subserviency to all succeeding governments to which, in turn, they had taken, and broken, the oaths of allegiance. Like the rest of public servants, magistrates and judges were to be elective, responsible, and revocable.”
What is the point I am trying to make by quoting at length from Marx and Engels on these matters? It is that they key transformation that the state must undergo to be of use to the working class is a thoroughgoing democratisation. The act of an effective of such democratisation (which will of course the replacement by election of those antagonist to the interests of the majority) would be to create an entirely different state and criminal justice system; this is how we “smash” the bourgeoisie state.