Law Social Theory

Law and Social Theory – 2007 Midsession Exam Notes

Introduction: The Concept of Modernity
S Hall et al (eds), Modernity. An Introduction to Modern Societies 3
Peter Hamilton, “The Enlightenment and the Birth of Social Science” 3
David Held, “The Development of the Modern State” 4
J. M. Hobson, The Eastern Origins of Western Civilisation 5
D. Lyon, Postmodenity 9

Karl Marx: The Critique of Law and Society
Introduction to Marx
L. Kolakowski, Main Currents of Marxism 12
Early Marx
Marx, Introduction to the Critique of Hegel’s ‘Philosophy of Right’ 12
Marx, On the Jewish Question 14
Marx, The Economic and Philosophical Manuscripts of 1844 15
L. Kolakowski, Main Currents of Marxism 17
The Mature Marx and the Materialist Conception of History
Marx, Preface to A Contribution to the Critique of Political Economy 18
Marx and Engels, The German Ideology 19
Engels and the ‘determination [of law, etc.] in the last analysis’
Selected letters by Engels in Marx and Engels, Selected Correspondence
Engels to Bloch 22
Engels to Schmidt 23
Engels to Mehring 24
Engels to Starkenburg 24
The Withering Away of State and Law
Engels, Anti‐Duhring 24
The Role of Law in the Transition Period from Capitalism to Socialism
Marx, Preface to the Critique of the Gotha Programme 25
Marxism and the Form of Law: E.B. Pashukanis and the Commodity‐Exchange Theory of Law
E. B. Pashukanis, The General Theory of Law and Marxism 25
Marxism and the Rule of Law
H. Collins, Marxism and Law 29
M. Krygier, “Marxism, Communism and the Rule of Law” 30

Emile Durkheim: Law and Social Cohesion
The Concerns of Social Theory
Emile Durkheim, The Rules of Sociological Method 35
Emile Durkheim, “Individual and Collective Representations” 36
The General Role of Law in Society: the expression and symbol of the society’s form of social
organization
Emile Durkheim, The Division of Labor in Society 36
The Non‐Contractual Elements of Contract
Crime and Punishment
Emile Durkheim, The Rules of a Sociological Methods 37
The Distinctiveness of Modern Society: The Division of Labor
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Two Types of Social Solidarity: Mechanical solidarity – through likeness – in societies with little
divisions of labour
Organic Solidarity – through the division of labour – in modern societies
Two Types of Law
Repressive Law
Restitutive Law
Social Pathology: Abnormal Forms of the Division of Labour: Inadequate Legal Regulation: Anomic
division of labour and industrial crises
Unjust Legal Regulation: forced division of labour and class wars
Another solution to the Problems of Anomie and the Forced Division of Labor
The Future of Law

Max Weber: Law, Modernity and the Rationalism of the West
Introduction: The Uniqueness of Modern Western Rationalism
Max Weber, The Protestant Ethic and the Spirit of Capitalism 49
R. Brubaker, The limits of Rationality 49
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Introduction: The Concept of Modernity

What is Modernity?

S. Hall et al (eds), Modernity. An Introduction to Modern Societies
 [1] What are these defining features or characteristics of modern societies?
1. Dominance of secular forms of political power.
2. Monetarized exchange of economy
3. Decline of the traditional social order, with its fixed social hierarchies and overlapping
allegiances
4. Decline of the religious world‐view typical of traditional societies
 There are two other aspects of our definition of modernity which should be loosely included
under the rubric of “the cultural”.
1. The first refers to ways of producing and classifying knowledge. The emergence of modern
societies was marked by the birth of a new intellectual and cognitive world, which gradually
emerged with the Reformation, the Renaissance, the scientific revolution of the 17th century,
and the Enlightenment of the 18th century.
2. “Formations of Modernity” follows modern social analysis in the emphasis it gives to the
construction of cultural and social identities as part of the formation process. By this we
mean the construction of a sense of belonging which draws people together into an
“imagined community” and the construction of symbolic boundaries which define who does
not belong or is excluded from it.

Peter Hamilton, “The Enlightenment and the Birth of Social Science”
 [3] Enlightenment – its “philosophy” and approach to key questions – is a combination of a
number of ideas, bound together in a tight cluster.
 As a minimum, all the philosophes would have agreed on the following list:
1. Reason – the philosophes stressed the primacy of reason and rationality as ways of
organising knowledge, tempered by experience and experiment.
2. Empiricism – the idea that all thought and knowledge about the natural and social world is
based on empirical facts, things that all human beings can apprehend through their sense
organs.
3. Science – was the key to expanding all human knowledge.
4. Universalism – the concept that reason and science could be applied to any and every
situation, and that their principles were the same in every situation.
5. Progress
6. Individualism – the concept that the individual is the starting point for all knowledge and
action, and that individual reason cannot be subjected to a higher authority.
7. Toleration
8. Freedom – an opposition to feudal and traditional constraints
9. Uniformity of human nature
10. Secularism

What was the Enlightenment?
 [4] A simple answer to this question would separate out at least 8 meanings of the
Enlightenment:
1. A characteristic bundle of ideas.
2. An intellectual movement.
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3. A communicating group or network of intellectuals.
4. A set of institutional centres where intellectuals clustered.
5. A publishing industry, and an audience for its output.
6. An intellectual fashion.
7. A belief‐system, world‐view, or Zeitgeist.
8. A history and a geography.
 There were many aspects of the Enlightenment, and many philosophes, so what you will find
here is an attempt to map out some broad outlines, to set some central ideas in their context,
and to indicate some important consequences.
 In its simplest sense the Enlightenment was the creation of a new framework of ideas about
man, society, and nature, which challenged existing conceptions rooted in a traditional world‐
view, dominated by Christianity.

Conclusion
 [5] The Enlightenment, which its proponents saw as spreading reason like light, played a
critically important part in the emergence of the social sciences. It formed the first stage in the
forging of a modern conception of society as an entity open to human agency, whose workings
are in principle open to our scrutiny.
 The philosophes certainly believed that human agency, if properly informed by enlightened self‐
knowledge, was perfectly capable of controlling society.
 It is also clear that, like all knowledge, that of the Enlightenment spilled over from the narrow
cup into which it was poured by the philosophes, and washed over those for whom it was not
originally intended, being taken up by a wide range of popularisers and political activists of many
hues. When the great rupture between traditional and modern society first took shape in the
French Revolution, the jettisoning of traditional values based on Christianity and absolutism
must have seemed to many people a logical outcome of the radical program of the
Enlightenment.
 [6] If we think of Kant’s motto sapere aude – dare to know – we can capture the essence of this
new approach, this new paradigm. For the first time, man could “dare to know” about the social
arrangements under which he lived, rather than have them presented to him through the
obscuring haze of a religious ideology.
 [7] Most philosophes stopped short of a properly worked out model of society, because they
held an essentially “individualist” conception of man, and because their social theory hardly
needed the explicit conception of society as an entity.
 Saint‐Simon and Comte went beyond this to write quite explicitly about society as an entity
which can be “known” independently of individual men, as a force which can coerce and
constrain individuals to behave in certain ways.
 In Comte’s work, man becomes subject to society once more, no longer self‐sufficient but
pushed and pulled by the twin forces of statics and dynamics… His approach is often called
“organicism” because it uses the idea of society as a huge organism, as something more than the
sum of its parts.
 The history of sociology since the Enlightenment can be presented as the tension between the
two approaches to society outlined above: one based in the philosophes’ idea that society is no
more than an aggregate of individuals, the other in Comte’s idea that society is a super‐
individual entity, with a life of its own.

David Held, “The Development of the Modern State”
Formations of modernity
 [8] The growth of interconnections between states and societies – ie, of globalisation – became
progressively shaped by the expansion of Europe. Globalisation meant western globalisation.
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Key features of the modern states system – the centralisation of political power, the expansion
of administrative rule, the emergence of massed standing armies, the deployment of force –
which existed in Europe in embryo in the 16th century were to become prevalent features of the
entire global system. The chief vehicle for this was, to begin with, the European states’ capacity
for overseas operations by means of naval and military force capable of long‐range navigation.
 The expansion of Europe across the globe enhanced the demand, as one observer has noted,
“for organisations that would be capable of operating on such a scale”.
 [10] The development of the world capitalist economy initially took the form of the expansion of
market relations, driven by a growing need for raw materials and other factors of production.
 “Capitalists”, under the latter conditions, own factories and technology, while wage‐labourers,
or “wage‐workers,” are without ownership in the means of production.
 Accordingly, the objectives of war gradually became more economic: military endeavour and
conquest became more closely connected to the pursuit of economic advantage. The success of
military conquest and the successful pursuit of economic gain were more directly associated.
 [11] What was the relationship between “states” and “classes” in the era of formation of the
modern state?
 Analysing the nature of this alliance further, Poggi has usefully drawn a distinction between two
autonomous forces whose interests converged for a distinctive period. The forces consisted, on
the one hand, of political rulers seeking to centralise political power and fiscal arrangements by
disrupting and eradicating vestiges of power held by the nobility, the Church, and various estate
bodies, and, on the other hand, of the rising bourgeois classes seeking to remove impediments
to the expansion of market relations based on the trading arrangements established by powerful
social networks, both country (aristocratic and landed power‐bases) and urban (the estate and
guild systems).
 For the new capitalist classes sought not only to struggle against remnants of feudal privilege,
but also to ensure the progressive separation of economy from state so that economy free from
any risk of arbitrary political interference.

John M Hobson, “The Eastern Origins of Western Civilisation”
Countering the Eurocentric myth of the pristine West: discovering the oriental West
 [12c] The East enabled the rise of the West through 2 main processes:
1. Diffusionism/assimilation – the Easterners created a global economy and global
communications network after 500 along which the more advanced East “resource
portfolios” diffused across to the West, where they were subsequently assimilated, through
what I call oriental globalisation.
2. Appropriationism – Western imperialism after 1492 led the Europeans to appropriate all
manner of Eastern economic resources to enable the rise of the West.
In short, the West did not autonomously pioneer its own development in the absence of Eastern
help, for its rise would have been inconceivable without the contribution of the East.
 [12d] The marginalisation of the East constitutes a highly significant silence because it conceals 3
major points.
1. The East actively pioneered its own substantial economic development after about 500.
2. The East actively created and maintained the global economy after 500.
3. The East has significantly and actively contributed to the rise of the West by pioneering and
delivering many advanced “resource portfolios” (e.g. technologies, institutions and ideas) to
Europe.
 Nevertheless, this does not mean that the West has been a passive recipient of Eastern
resources.
 In sum, these 2 interrelated claims – Eastern agency and the assimilation of advanced Eastern
“resource portfolios” via oriental globalisation on the one hand, entwined with European
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agency/identity and the appropriation of Eastern resources on the other – constitute the
discovery of the lost story of the rise of the oriental West.

Constructing the Eurocentric/Orientalist foundations of the mainstream theories of the rise of the
West
European identity formation and the invention of Eurocentrism/Orientalism
 [12e] Between 1700 and 1850 European imagination divided, or more accurately forced, the
world into 2 radically opposed camps: West and East. In this new conception, the West was
imagined as superior to the East. The imagined values of the inferior East were set up as the
antithesis of rational Western values. Specifically, the West was imagined as being inherently
blessed with unique virtues: it was rational, hard‐working, productive, sacrificial and
parsimonious, liberal‐democratic, honest, paternal and mature, advanced, ingenious, proactive,
independent, progressive and dynamic. The East was then case as the West’s opposite Other: as
irrational and arbitrary, lazy, unproductive, indulgent, exotic as well as alluring and promiscuous,
despotic, corrupt, childlike and immature, backward, derivative, passive, dependent, stagnant,
and unchanging.
 This argument formed the basis of the theory of oriental despotism and the Peter Pan theory of
the East, which conveyed an eternal image of a “dynamic West” versus an “unchanging East”.
 But this was not just a legitimating idea for imperialism and subjugation of the East. For by
depicting or imagining the East as the West’s passive opposite it was but a short step to make
the argument that only the West was capable of independently pioneering progressive
development.
 Thus the myth of the pristine West [12g] was born: that the Europeans had, through their own
superior ingenuity, rationality and social‐democratic properties, pioneered their own
development in the complete absence of Eastern help, so that their triumphant breakthrough to
modern capitalism was inevitable.
 Pick up any conventional book on the rise of the modern world. The West is usually represented
as the mainstream civilisation and is enshrined with Promethean quality. While Easter societies
are sometimes discussed they clearly lie outside the mainstream story.
 Two main points are of note here.
1. This story is one that imagines Western superiority from the outset.
2. The story of the rise and triumph of the West is one that can be told without any discussion
of the East or the “non‐West”. Europe is seen as autonomous or self‐constituting on the one
hand, and rational/democratic on the other, making the breakthrough all by itself.

The Orientalist foundations of Marxism
 [12h] Karl Marx’s theory assumed that the West was unique and enjoyed a developmental
history that had been absent in the East. Indeed, he was explicit that the East had had no
(progressive) history.
 This formula was most famously advanced in The Communist Manifesto where we are told that
the Western bourgeoisie,
draws all, even the most barbarian, nations into civilisation…It compels all nations, on pain
of extinction, to adopt the [Western] bourgeois mode of production, it compels them to
introduce what it calls civilisation into their midst, ie, to become [Western] themselves. In
one word, it [the Western bourgeoisie] creates a world after its own image.
 Crucial here was his concept of the “Asiatic mode of production” in which “private property” and
hence “class struggle” – the developmental motor of historical progress – were notably absent.
As he explained in Capital, in Asia “the direct producers…[are] under direct subordination to a
state which stands over them as their landlord… [Accordingly] no private ownership of land
exists. And it was the absorption of, and hence failure to produce, a surplus for reinvestment in
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the economy that, “supplie[d] the key to the secret of the unchangeableness of Asiatic
societies”.
 Accordingly, economic progress was understood as the unique preserve of the West. Thus what
we have in Marx’s theoretical understanding of the East and West is the theory of oriental
despotism.
 No less importantly, Marx’s whole theory of history faithfully reproduces the Orientalist or
Eurocentric teleological story. In The German Ideology Marx traces the origins of capitalist
modernity back to Ancient Greece – the fount of civilisation.
 [12i] For Marx the Western proletariat is humanity’s “Chosen People” no less than the Western
bourgeoisie is global capitalism’s “Chosen People”. Marx’s inverted Hegelian approach gave rise
to a progressive/linear story in which the (Western) species edged closer to freedom through
class struggle with each passing historical epoch.
 No such progressive “linearity” was possible in the Orient, where growth‐repressive “cycles” of
despotic political regimes and regressive rural production systems did no more than mark time.
 To paraphrase Marx’s discussion of the difference between proletarian “class‐in‐itself”
(representing inertia and passivity) and “class‐for‐itself” (representing a proactive propensity for
emancipation), it is as if Marx saw the East as a “being‐in‐itself” that was inherently incapable of
becoming a “being‐for‐itself”. By contrast, the West was from the outset a “being‐for‐itself”.

The Orientalist foundations of Weberianism
 The Orientalist cue in Weber is found both with the initial questions and the subsequent
analystical methodology that he deployed in order to answer them. Weber’s view was that the
essence of modern capitalism lay with its unique and pronounced degree of “rationality” and
“predictability”, values that were to be found only in the West.
 This comparison confirms that Weber perfectly transposed the Eurocentric categories into his
central social scientific concepts. Thus the West was blessed with a unique set of rational
institutions which were both liberal and growth permissive. The growth‐permissive factors are
striking for their presence in the West and for their absence in the East. Here, the division of East
and West according to the presence of irrational and rational institutions respectively very much
echoes [12j] the Peter Pan theory of the East.
 By 1500 rulers were anxious to promote capitalism in order to enhance tax revenues in the face
of constant, and increasingly expensive, military competition between states. By contrast, in the
East the predominance of “single‐state systems” led to empires of domination, in large part
because of lack of military competition released the state from the pressure of having to nurture
the development of society.
 [12k] In sum, although the Webernan argument has a different content from Marx’s both
worked within an Orientalist framework. And the obvious link here lies in the centrality that both
accord to the absence of oriental despotism in the West on the one hand, and the imputed
European logic of immanence on the other.
 Probably the most significant consequences of Max Weber’s construction of the Eurocentric
theoretical template is that it has permeated almost all Eurocentric accounts of the rise of the
West even if, as James Blaut also notes, many of the relevant authors would recognise
themselves as neither Webernan nor Orientalist. This should hardly be surprising, given that all
mainstream scholars begin their analysis by asking the standard Webernan question: why did
only the West break through to modern capitalism, while, conversely, the East was doomed to
remain in poverty?

The illusion of Eurocentrism: discovering the oriental West
 [12l] Conventional scholars assign the leading edge of global power in the last thousand years,
without exception, to Western states. But the immediate problem is that Western powers only
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appear to have been dominant because a Eurocentric view determined from the outset that no
Eastern power could be selected in.
 Nevertheless, Landes would still claim that even if all this were true, the fact remains that only
the Europeans managed to single‐handedly break through to capitalist modernity.
 But as I stated earlier, the West only got over the line into modernity because it was helped by
the diffusion and appropriation of the more advanced Eastern resource portfolios and resources.
 No less irksome is the point that virtually all of the nautical and navigational technologies and
techniques that made Da Gama’s journey possible were invented in either China or the Islamic
Middle East. These were then assimilated by the European, having diffused across the global
economy via the Islamic Bridge of the World.
 [12m]More generally it is important to note that Eastern resource portfolios had a significant
influence in each of the major European turning points. Most of the major technologies that
enables the European medieval agricultural revolution after 600 CE seem to have come across
from the East. After 1000, the major technologies, ideas and institutions that stimulated the
various Western commercial, production, financial, military and navigational revolutions, as well
as the Renaissance and the scientific revolution, were first developed in the East but later
assimilated by the Europeans. After 1700, the major technologies and technological ideas that
spurred on the British agricultural industrial revolutions all diffused across from China.
Moreover, Chinese ideas also helped stimulate the European Enlightenment. And it is precisely
because the East and West have been linked together in a single global cobweb ever since 500
that we need to dispense with the Eurocentric assumption that these two entities can be
represented as entirely separate and antithetical.
 The second major way in which the East enabled the rise of the West was through the European
imperial appropriation of Eastern resources (land, labour and markets).
 [12n] Then, during the 18th century, European identity reconstruction led to the creation of what
I refer to as “implicit racism” which led on to the idea of the moral necessity of the imperial
“civilising mission”. Imagining the East to be backward, passive and childlike in contrast to the
West as advanced, proactive and paternal was vital in prompting the Europeans to engage in
imperialism. For the European elites sincerely believed that they were civilising the East through
imperialism (even if many of their actions belied this noble conception). And in turn, the
appropriation of many non‐European resources through imperialism underwrote the pivotal
British industrial revolution.

David Lyon, “Postmodernity”
Modernity and its Discontents
 [13] So what is modernity? The term refers to the social order that emerged following the
Enlightenment. Though its roots may be traced further back, the modern world is marked by its
unprecedented dynamism, its dismissal or marginalising of tradition, and by its global
consequences. Modernity’s forward‐looking thrust relates strongly to belief in progress and the
power of human reason to produce freedom.

Modernity’s achievement
 [15] But not only are the consequences of such technical developments deeply social; so also are
the causes. The most conspicuous motor driving them is capitalism, with its constant quest for
new raw materials, new sources of labour power and, more recently, new technologies to
supplement or replace that labour power and new applications that might attract new
consumers. From the start, one innovation spawned another.
 As Karl Marx (1818‐1883) noted in The Communist Manifesto:
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The bourgeoisie cannot exist without constantly revolutionising the instruments of
production, and with them the relations of production, and with them all the relations of
society… Constant revolutionising of production, uninterrupted disturbance of all social
relations, everlasting uncertainty and agitation, distinguish the bourgeois epoch from all
earlier ones.

Differentiation
 Emile Durkheim’s (1858‐1917) contribution was to suggest how this process of differentiation lay
behind a new principle of social integration, what he called “organic” rather than “mechanical”
solidarity. The latter, older, type relied on coercion and the heavy hand of tradition, whereas the
former developed out of the growing interdependence fostered by the division of labour.
 Durkheim’s sociology laid the groundwork for a major theme that would engage social scientists
in the 20th century: how differentiation spreads to all social spheres.

Rationalisation
 [16] Where Marx’s sociology gives us a world of commodities, rules by the restless pursuit of
profit, and Durkheim’s a world of detailed subdividing of tasks and responsibilities, Max Weber’s
(1864‐1918) vision of modernity was somewhat different again. For him, rationalisation is the
key. By this he meant the gradual adoption of a calculating attitude towards more and more
aspects of life.
 To observe, to calculate, these are the hallmarks of modernity for Weber. The scientist’s
laboratory method, the capitalist’s ledger of profit and loss, the bureaucrat’s rules and ranks
within the organisation all testify to the significance of rationalisation. Such careful calculation
created control, it was a means to mastery.

Urbanism
 For the Chicago School of urban sociologists, modernity was worked out in the burgeoning cities
of the New World, above all in Chicago itself. Urbanism, they asserted, was nothing less than a
new and distinctive “way of life”. Here, the city became the means of processing the waves of
immigrants, locating them in zones, and classifying them for use in the factories and offices of
progressive industrialism.

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Discipline
 [17] Such a goal of modernity, rationally to exclude and eliminate the criminal, the deviant,
follows naturally from the classificatory, controlling impulse seen in sphere after sphere.

Secularity
 As the 19th century progressed, many examples appeared of alternatives to older religious forms,
both deliberately fostered and the unintended consequences of modernising processes. Urban
industrialism seemed to displace the influence of the churches in Europe both by displacing
people from their older, communal contexts and by offering new principles of social organisation
to replace those enshrined in religion.
 The French Revolution decisively dethroned God, proclaiming the arrival of the secular state.
 To obtain a fuller picture of modernity, however, 2 other facets should be brought more clearly
to light. On the one hand, mention of raw materials and labour power for capitalist production
reminds us that other countries apart from European ones were involved in the project of
modernity from the outset. On the other hand, the industrial revolution wrought great changes
in relations between the sexes, marking women’s special sphere domestic and men’s public,
thus reinforcing age‐old patterns of dominance and subordination.

Modernity’s ambivalence
 [18] Modernity’s achievement was to inaugurate nothing less than a new social order, to
introduce unprecedented and often irreversible change on a massive scale. Indeed, modernity
became the first mode of social organisation to achieve global predominance.
 But modernity was a mixed blessing. From the earliest social analyses notes of caution and
concern were sounded. In the world of production Marx found exploiting capitalists and
alienated workers. Durkheim notes a profound sense of unease, uncertainty about how to go on,
among those affected by the new divisions of labour. Weber feared that rationalisation would
eventually crush the human spirit, walling it behind the bars of the bureaucratic iron cage.

Alienation and exploitation
 Karl Marx, though he welcomed modernity, was no friend of its midwife, capitalism.
 To Marx, capitalism succeeded in driving a wedge between capitalist and labourer, between
labourers themselves – as they competed for scarce jobs – and, more profoundly, between
workers and their own identity or “species being”. Workers were thus both alienated from their
own humanity, understood as free, purposeful activity, and exploited by an insatiable lust for
profit.
 By observing that the money economy became the “real community” be indicated that the
world was becoming dominated by a system of impersonal, objective relations rather than the
familiar face‐to‐face ones of traditional societies.

Anomie and loss of direction
 [19] The sense of uprootedness from tradition, of having boundary markers disappear, as it
were, overnight, appears strongly in the work of Durkheim. He saw a clear break occurring as
modernity took hold.
 Without some normative basis, a source of authority for society, though Durkheim, the moral
order would collapse. Whatever the eventual contribution of the organic solidarity of the
division of labour, right now, argued Durkheim, this anomie was pathological, possibly to the
point of suicide.
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 Thus modern differentiation introduces decisively self‐referential systems, which from an
individual’s perspective have constantly to be negotiated.
 Durkheim’s response to this, within his own sociological style, was to stress the scientific
character of what he was doing.
 Science could in this way provide sure guidance in an age of anomie. Intellectuals had a clear
role of leadership and legislation in the modern world. The corollary was the promise of
“rational” organisation of society.

The iron cage
 Weber foresaw that the reign of rationality, applied equally in the social as in the natural
environment, would produce the “disenchantment of the world”. As “substantive” was steadily
ousted by “formal” rationality, so any sense of the ultimate purposes of action would evaporate.
 Weber reserved his most biting critique for modern rationality, expressed in the bureaucracy.
The bureaucratic official was for Weber the epitome of modernity. Bound by rules of rational
procedure, untainted by “irrational” considerations of race and religion, generation or gender,
the bureaucrat was the indispensable functionary of commerce and industry, of capitalist
enterprise and, prophesised Weber, the state socialist machine. In a world rapidly overrun by
forces that stressed economic criteria alone, Weber feared that bureaucracy would simply
hasten the inhumane.

The society of strangers
 [20]Perhaps it was because the city came to be seen as the crucible of modernity that
ambivalence seems most marked there.
 Recognition of the fleeting, the transient, the superficial is the price to be paid for grasping what
modernity is all about.
 Engel’s saw in the “great city” of London the “isolation of the individual – a narrow‐minded
egotism” that was nothing less than the “disintegration of society into individuals, each guided
by his private principles and each pursuing his own aims”.

Control
 The ambivalence we have been discussing in relation to several spheres resurfaces in the twin
ideas of autonomy and control. For Max Weber and, later, for critical theorists, the
Enlightenment promise of freedom as a product of rationality was a hollow one. Supposedly
autonomous individuals, liberated from the authorities of tradition to forge their own destiny,
find themselves mocked by the machine‐like systems they now inhabit.

Unweaving the rainbow
 [21] Modernity, it seemed to some, was digging its own grave. By proclaiming human autonomy,
by setting in motion the process that would permit instrumental reason to be the rule of life, a
change had begun that would end dismally, if not disastrously. Progress looked propitious, and
was preferred over providence. But the promise of progress soured. Nothing would be immune
from the dictates of sceptical, calculating reason, including reason itself.

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Karl Marx: The Critique of Law and Society

Introduction to Marx

L Kolakowski, Main Currents of Marxism
Introduction
 [23] Karl Marx was a German philosopher
 The statement that Marx was a German philosopher may imply a certain interpretation of his
thought and of its philosophical or historical importance, as a system unfolded in terms of
economic analysis and political doctrine.
 [24] The question is rather how, and as a result of what circumstances, the original idea came to
serve as a rallying‐point for so many different and mutually hostile forces; or what were the
ambiguities and conflicting tendencies in the idea itself which led to its developing as it did?
 [26] It is a premiss of this work that, logically as well as chronologically, the starting‐point of
Marxism is to be found in philosophic anthropology.
 Marx was not an academic writer but a humanist in the Renaissance sense of the term: his mind
was concerned with the totality of human affairs, and his vision of social liberation embraced, as
an interdependent whole, all the major problems with which humanity is faced. It has become
customary to divide Marxism into 3 fields of speculation – basic philosophic anthropology,
socialist doctrine, and economic analysis – and to point to 3 corresponding sources in German
dialectics, French socialist thought, and British political economy.
 If, however, we attempt to reconstruct these categories and display Marx’s thought in
accordance with them, we run the risk of neglecting his evolution as a thinker and of treating the
whole of his work as a single homogenous block. It seems better, therefore to pursue the
development of his thought in its main lines and only afterwards to consider which of its
elements were present from the outset, albeit implicitly, and which may be regarded as
transient and accidental.
 The starting‐point of Marx’s thinking, however, was provided by the philosophic questions
comprised in the Hegelian inheritance (i.e. history had a destination, and that the destination
was a realisation of what humans are capable of), and the break‐up of that inheritance is the
natural background to any attempt at expounding his ideas.

Early Marx

Marx, Introduction to A Contribution to the Critique of Hegel’s “Philosophy of Right”
 [27] The profane existence of error is compromised once its celestial oratio pro ans et focis has
been refuted. Man, who has found in the fantastic reality of heaven, where he sought a
supernatural being, only his own reflection, will no longer be tempted to find only the semblance
of himself – a non‐human being – where he seeks and must seek his true reality.
 The basis of irreligious criticism is this: man makes religion; religion does not make man.
 This state, this society, produces religion which is an inverted world consciousness, because they
are an inverted world. Religion is the general theory of this world, its encyclopaedic
compendium, its logic in popular form, its spiritual point d’honneur, its enthusiasm, its moral
sanction, its solemn complement; its general basis of consolation and justification. It is the
fantastic realisation of the human being inasmuch as the human being possesses no true reality.
 [Religion] is the opium of the people.
 The abolition of religion as the illusory happiness of men, is a demand for their real happiness.
The call to abandon their illusions about their condition is a call to abandon a condition which
12
requires illusions. The criticism of religion is, therefore, the embryonic criticism of this vale of
tears of which religion is the halo.
 [28] Theory itself becomes a material force when it has seized the masses. Theory is capable of
seizing the masses when it demonstrates ad hominem, and it demonstrates ad hominem as soon
as it becomes radical. To be radical is to grasp things by the root. But for man the root is man
himself.
 The criticism of religion ends with the doctrine that man is the supreme being for man. It ends,
therefore, with the categorical imperative to overthrow all those conditions in which man is an
abased, enslaved, abandoned, contemptible being.
 But if Germany accompanied the development of the modern nations only through the abstract
activity of thought, without taking an active part in the real struggles of this development, it has
also experienced the pains of this development without sharing in its pleasures and partial
satisfactions.
 [29] It is not radical revolution, universal human emancipation, which is a Utopian dream for
Germany, but rather a partial, merely political revolution which leaves the pillars of the building
standing. What is the basis of a partial, merely political revolution? Simply this: a section of civil
society emancipates itself and attains universal domination, a determinate class undertakes,
from its particular situation, a general emancipation of society.
 For a popular revolution and the emancipation of a particular class of civil society to coincide, for
one class to represent the whole of society, another class must concentrate in itself all the evils
of society, a particular class must embody and represent a general obstacle and limitation. A
particular social sphere must be regarded as the notorious crime of the whole society, so that
emancipation from this sphere appears as a general emancipation.
 [30] This is our reply. A class must be formed which has radical chains, a class in civil society
which is not a class of civil society, a class which is the dissolution of all classes, a sphere of
society which has a universal character because its sufferings are universal, and which does not
claim a particular redress because the wrong which is done to it is not a particular wrong but
wrong in general. There must be formed a sphere of society which claims no traditional status
but only a human status, a sphere which is not opposed to particular consequences but is totally
opposed to the assumptions of the German political system; a sphere, finally, which cannot
emancipate itself without emancipating itself from all the other spheres of society, without,
therefore, emancipating all these other spheres, which is, in short, a total loss of humanity and
which can only redeem itself by a total redemption of humanity. This dissolution of society, as a
particular class, is the proletariat.
 The proletariat is only beginning to form itself in Germany, as a result of the industrial
movement. For what constitutes the proletariat is not naturally existing poverty, but poverty
artificially produced, is not the mass of people mechanically oppressed by the weight of society,
but the mass resulting from the disintegration of society and above all from the disintegration of
the middle class. Needless to say, however, the numbers of the proletariat are also increased by
the victims of natural poverty and of Christian‐Germanic serfdom.
 The emancipation of Germany is only possible in practice if one adopts the point of view if that
theory according to which man is the highest being for man.
 The emancipation of Germany will be an emancipation of man. Philosophy is the head of this
emancipation and the proletariat is its heart. Philosophy can only be realised by the abolition of
the proletariat, and the proletariat can only be abolished by the realisation of philosophy.

What is alienation?
Projection – god is a projection of our hopes and fears
Reification (objectification) – you make things that aren’t things, into things
Domination – Where the objects of our creation comes to dominate us
13
Alienation

Marx, On the Jewish Question
 [31] It is because you can be emancipated politically, without renouncing Judaism completely
and absolutely, that political emancipation itself is not human emancipation.
 Let us consider for a moment the so‐called rights of man. These rights of man are, in part,
political rights, which can only be exercised if one is a member of a community. Their content is
participation in the community life, in the political life of the community, the life of the state.
They fall in the category of political liberty, of civil rights, which as we have seen do not at all
presupposed the consistent and positive abolition of religion; nor consequently, of Judaism. It
remains to consider the other part, namely the rights of man as distinct from the rights of the
citizen.
 Among them is to be found the freedom of conscience, the right to practise a chosen religion.
The privilege of faith is expressly recognised, either as a right of man or as a consequence of a
right of man, namely liberty.
 The incompatibility between religion and the rights of man is so little manifest in the concept of
the rights of man that the right to be religious, in one’s own fashion, and to practise one’s own
particular religion, is expressly included among the rights of man. The privilege of faith is a
universal right of man.
 A distinction is made between the rights of man and the rights of the citizen. Who is this man
distinct from the citizen? No one but the member of civil society.
 [32] Let us notice first of all that the so‐called rights of man, as distinct from the rights of the
citizen, are simply the rights of a member of civil society, that is, of egoistic man, of man
separated from other men and from the community.
 What constitutes liberty? Liberty is the power which man has to do everything (which does not
harm others). Liberty is, therefore, the right to do everything which does not harm others. The
limits within which each individual can act without harming others are determined by law, just
as the boundary between two fields is marked by a stake. But liberty as a right of man is not
founded upon the relations between man and man, but rather upon the separation of man from
man. It is the right of such separation. The right of the circumscribed individual, withdrawn into
himself.
o The practical application of the right of liberty is the right of private property.
 “The right of property is that which belongs to every citizen of enjoying and disposing as he will
of his goods and revenues, of the fruits of his work and industry”.
 The right of property is, therefore, the right to enjoy one’s fortune and to dispose of it as one
will; without regard for other men and independently of society (It is the right of self‐interest).
This individual liberty, and its application, form the basis of civil society. (It leads every man to
see in other men, not the realisation, but rather the limitation of his own liberty).
 The concept of security is not enough to raise civil society above its egoism. Security is, rather,
the assurance of its egoism.
 None of the supposed rights of man, therefore, go beyond the egoistic man, man as he is, as a
member of civil society; that is, an individual separated from the community, withdrawn into
himself, wholly preoccupied with his private interest and acting in accordance with his private
caprice. Man is far from being considered, in the rights of man, as a species‐being.
 [33] The political revolution therefore abolished the political character of civil society. It
dissolved civil society into its basic elements, on the one hand individuals, and on the other hand
the material and cultural elements which formed the life experience and the civil situation of
these individuals. It set free the political spirit which had, so to speak, been dissolved,
fragmented and lost in the various cul‐de‐sac of feudal society; it reassembled these scattered
fragments, liberated the political spirit from its connexion with civil life and made of it the
14
community sphere., the general concern of the people, in principle independent of these
particular elements of civil life.
 Feudal society was dissolved into its basic element, man; but into egoistic man who was its real
foundation.
 But the liberty of egoistic man, and the recognition of this liberty, is rather the recognition of the
frenzied movement of the cultural and material elements which form the content of his life.
 Thus man was not liberated from religion; he received religious liberty. He was not liberated
from property; he received the liberty to own property. He was not liberated from the egoism of
business; he received the liberty to engage in business.
 [34] Every emancipation is a restoration of the human world and of human relationships to man
himself.
 Political emancipation is a reduction of man, on the one hand to a member of civil society, an
independent and egoistic individual, and on the other hand, to a citizen, to a moral person.
 Human emancipation will only be complete when the real, individual man has absorbed into
himself the abstract citizen; when as an individual man, in his everyday life, in his work, and in
his relationships, he has become a species‐being; and when he has recognised and organised his
own powers (forces propes) as social powers so that he no longer separates this social power
from himself as political power.

Marx, The Economic and Philosophical Manuscripts of 1844
 [35] The worker becomes all the poorer the more wealth he produces, the more his production
increases in power and range. The worker becomes an ever cheaper commodity the more
commodities he creates. Labour produces not only commodities; it produces itself and the
worker as a commodity – and does so in the proportion in which it produces commodities
generally.
 This fact expresses merely that the object which labour produces – labour’s product – confronts
it as something alien, as a power independent of the producer. The product of labour is labour
which has been congealed in an object, which has become material; it is the objectification of
labour. Labour’s realisation is its objectification.
 [36] All these consequences are contained in the definition that the worker is related to the
product of his labour as to an alien object. For on this premise it is clear that the more the
worker spends himself, the more powerful the alien objective world becomes which he creates
over‐against himself, the poorer he himself – his inner world – becomes, the less belongs to him
as his own. It is the same in religion. The more man puts into God, the less he retains in himself.
The worker puts his life into the object; but now his life no longer belongs to him but to the
object. Hence, the greater this activity, the greater is the worker’s lack of objects. Whatever the
product of his labour is, he is not. Therefore the greater this product, the less is he himself. The
alienation of the worker in his product means not only that his labour becomes an object, an
external existence, but that it exists outside him, independently, as something alien to him, and
that it becomes a power of its own confronting him; it means that the life which he has
conferred on the object confronts him as something hostile and alien.
 Political economy conceals the estrangement inherent in the nature of labour by not considering
the direct relationship between the worker (labour) and production. It is true that labour
produces for the rich wonderful things – but for the worker, hovels.
 The direct relationship of labour to its produce is the relationship of the worker to the objects of
his production.
 Till now we have been considering the estrangement, the alienation of the worker only in one of
its aspects, ie, the worker’s relationship to the products of his labour. But the estrangement is
manifested not only in the result but in the act of production – within the producing activity
itself.
15
 [37] What, then, constitutes the alienation of labour? First, the fact that labour is external to the
worker, i.e., it does not belong to his essential being; that in his work, therefore, he does not
affirm himself but denies himself, does not feel content but unhappy, does not develop freely
his physical and mental energy but mortifies his body and ruins his mind. The worker therefore
only feels himself outside his work, and in his work feels outside himself. He is at home when he
is not working, and when he is working he is not at home. His labour is therefore not voluntary,
but coerced; it is forced labour. It is therefore not the satisfaction of need; it is merely a means
to satisfy external needs to it. Its alien character emerges clearly in the fact that as soon as no
physical or other compulsion exists, labour is shunned like the plague. External labour, labour in
which man alienates himself, is a labour of self‐sacrifice, of mortification. Lastly, the external
character of labour for the worker appears in the fact that it is not his own, but someone else’s,
that it does not belong to him, that in it he belongs, not to himself, but to another. Just as in
religion the spontaneous activity of the human imagination, of the human brain and the human
heart, operates independently of the individual – that is, operates on him as an alien, divine or
diabolical activity – in the same way the worker’s activity is not his spontaneous activity. It
belongs to another; it is the loss of his self.
 As a result, therefore, man (the worker) no longer feels himself to be freely active in any but his
animal functions – eating, drinking, procreating, or at most in his dwelling and in dressing up,
etc; and in his human functions he no longer feels himself to be anything but animal.
 Man is a species being, not only because in practice and in theory he adopts the species as his
object, but – and this is only another way of expressing it – but also because he treats himself as
the actual, living species; because he treats himself as a universal and therefore a free being.
 In estranging from man (1) nature, and (2) himself, his own active functions, his life‐activity,
estranged labour estranges the species from man. It turns for him the life of the species into a
means of individual life.
 For in the first place labour, life‐activity, productive life itself, appears to man merely as a means
of satisfying a need – the need [38] to maintain the physical existence.
 The animal is immediately identical with its life‐activity. It does not distinguish itself from it. It is
its life‐activity. Man makes his life‐activity itself the object of his will and of his consciousness.
Estranged labour reserves this relationship, so that it is just because man is a conscious being
that he makes his life‐activity, his essential being, a mere means to his existence.
 In creating an objective world by his practical activity, in working‐up inorganic nature, man
proves himself a conscious species being. Admittedly, animals also produce… But an animal only
produces what it immediately needs for itself or its young.
 It is just in the working‐up of the objective world, therefore, that man first really proves himself
to be a species being. This production is his active species life. Through and because of this
production, nature appears as his work and his reality. The object of labour is, therefore, the
objectification of man’s species life: for he duplicates himself not only, as in consciousness,
intellectually, but also actively, in reality, and therefore he contemplates himself in a world that
he has created. In tearing away from man the object of his production, therefore, estranged
labour tears from him his species life, his real species objectivity, and transforms his advantage
over animals into the disadvantage that his inorganic body, nature, is taken from him.
 An immediate consequence of the fact that man is estranged from the product of his labour,
from his life activity, from his species being is the estrangement of man from man.

L Kolakowski, Main Currents of Marxism
 [39] Marx’s point of departure is the eschatological question derived from Hegel: how is man to
be reconciled with himself and with the world?
 Marx, like Hegel, looks forward to man’s final reconciliation with the world, himself, and others.
Again following Feuerbach against Hegel, he does not see this in terms of the recognition of
16
being as a product of self‐knowledge, but in the recognition of sources of alienation in man’s
terrestrial lot and in the overcoming of this state of affairs... He disagrees with Feuerbach’s view
that alienation results from the mythopoeic consciousness which makes God the concentration
of human values; instead, he regards this consciousness [40] as itself the product of the
alienation of labour.
 Alienated labour is a consequence of the division of labour, which in its turn is due to
technological progress, and is therefore an inevitable feature of history.
 Alienation means the subjugation of man by his own works, which have assumed the guise of
independent things.
 Alienation is thus not to be cured by thinking about it, but by removing its causes… We deny the
validity of metaphysical and epistemological problems engendered by the false hope of attaining
to some absolute reality beyond the practical horizon of human beings.
 Communism puts an end to the division of life into public and private spheres, and to the
difference between civil society and the state; it does away with the need for political
institutions, political authority and governments, private property and its source in the division
of labour. It destroys the class system and exploitation; it heals the split in man’s nature and the
crippled, one‐sided development of the individual... Communism turns philosophy into reality,
and by so doing abolishes it.
 Communism does not deprive man of individuality or reduce personal aspirations and abilities to
a dead level of mediocrity. It is the solution to the problem of history and is also the end of [41]
history as we have known it, in which individual and collective life are subject to contingency.
Henceforth man can determine his own development in freedom, instead of being enslaved by
material forces which he has created but can no longer control.
 It is itself a trend in contemporary history, which is evolving the premises of communism and
moving unconsciously towards it. This is because the present age stands for the maximum of
dehumanisation: on the one hand it degrades the worker by turning him into a commodity, on
the other it reduces the capitalist to the status of an entry in a ledger. The proletariat, being the
epitome of dehumanisation and the pure negation of civil society, is destined to bring about an
upheaval that will put an end to all social classes, including itself.
 The consciousness of the proletariat is not mere passive awareness of the part assigned to it by
history, but a free consciousness and a fount of revolutionary initiative.
 This consciousness is not a mere Hegelian acknowledgement and assimilation of past history; it
is turned towards the future, in an active impulse of transformation.
 While communism is the final transformation of all spheres of like and human consciousness,
the motive force of the revolution that brings it about must be the class‐interest of the exploited
and destitute proletariat.
 Communism has its precondition advanced technical development and a world market, and will
itself result in more intensive technical development; this, however, will not turn against its
creators as in the past, but will help them to full self‐realisation as human beings.

The Mature Marx and the materialist conception of history

Marx, Preface to A Contribution to the Critique of Political Economy
 [43] My investigation led to the result that legal relations as well as forms of state are to be
grasped neither from themselves nor from the so‐called general development of the human
mind, but rather have their roots in the material conditions of life, the sum total of which Hegel,
following the example of the Englishmen and Frenchmen of the 18th century, combines under
the name of “civil society”, that, however, the anatomy of civil society is to be sought in political
economy.
17
 The general result at which I arrived and which, once won, served as a guiding thread for my
studies, can be briefly formulated as follows: In the social production of their life, men enter into
definite relations that are indispensable and independent of their will, relations of production
which correspond to a definite stage of development of their material productive forces.
 The mode of production of material life conditions the social, political, and intellectual life
process in general.
 At a certain stage of their development, the material productive forces of society come in
conflict with the existing relations of production, or – what is but a legal expression for the same
thing – with the property relations within which they have been at work hitherto. From forms of
development of the productive forces these relations turn into their fetters. Then begins an
epoch of social revolution. With the change of the economic foundations the entire immense
superstructure is more or less rapidly transformed.
 No social order ever perished before all the productive forces for which there is room in it have
developed; and new, higher relations of production never appear before the material conditions
of their existence have matured in the womb of the old society itself.
 In broad outlines, Asiatic, ancient, feudal, and modern bourgeois modes of production can be
designated as progressive epochs in the economic formation of society. The bourgeois relations
of production are the last antagonistic form of the social process of production – antagonistic
not in the sense of individual antagonism, but of one arising from the social conditions of life of
the individuals; at the same time the productive forces developing in the womb of bourgeois
society create the material conditions for the solution of that antagonism.

Marx and Engels, The German Ideology
Ideology in general, German ideology in particular
 [45] Since the Young Hegelians consider conceptions, thoughts, ideas, in fact all the products of
consciousness, to which they attribute an independent existence, as the real chains of men (just
as the Old Hegelians declared them the true bonds of human society) it is evident that the Young
Hegelians have to fight only against these illusions of the consciousness. Since, according to their
fantasy, the relationships of men, all their doings, their chains and their limitations are products
of their consciousness, the Young Hegelians logically put to men the moral postulate of
exchanging their present consciousness for human, critical or egoistic consciousness, and thus of
removing their limitations. This demand to change consciousness amounts to a demand to
interpret reality in another way, i.e., to recognise it by means of another interpretation.
 They forget, however, that to these phrases they themselves are only opposing other phrases,
and they are in no way combating the real existing world when they are merely combating the
phrases of this world.
 It has not occurred to any one of these philosophers to inquire into the connection of German
philosophy with German reality, the relation of their criticism to their own material
surroundings.
 The premises from which we begin are not arbitrary ones, not dogmas, but real premises from
which abstraction can only be made in the imagination.
 The first premise of all human history is, of course, the existence of living human individuals.
 [46] Men can be distinguished from animals by consciousness, by religion or anything else you
like. They themselves begin to distinguish themselves from animals as soon as they begin to
produce their means of subsistence, a step which is conditioned by their physical organisation.
By producing their means of subsistence men are indirectly producing their actual material life.
 They way in which men produce their means of subsistence depends first of all on the nature of
the actual means of subsistence they find in existence and have to reproduce. This mode of
production must not be considered simply as being the reproduction of the physical existence of
the individuals. Rather it is a definite form of activity of these individuals, a definite form of
18
expressing their life, a definite mode of life on their part. As individuals express their life, so they
are. What they are, therefore, coincides with their production, both with what they produce and
with how they produce. The nature of individuals thus depends on the material conditions
determining their production.
 But not only the relation of one nation to others, but also the whole internal structure of the
nation itself depends on the stage of development reached by its production and its internal and
external intercourse. How far the productive forces of a nation are developed is shown most
manifestly by the degree to which the division of labour has been carried. Each new productive
force, insofar as it is not merely a quantitative extension of productive forces already known (for
instance the bringing into cultivation of fresh land), causes a further development of the division
of labour.
 The division of labour inside a nation leads at first to the separation of industrial and commercial
from agricultural labour, and hence to the separation of town and country and to the conflict of
their interests. Its further development leads to the separation of commercial from industrial
labour.
 The various stages of development in the division of labour are just so many different forms of
ownership, i.e., the existing stage in the division of labour determines also the relations of
individuals to one another with reference to the material, instrument, and product of labour.
 [47] The chief form of property during the feudal epoch consisted on one hand of landed
property with serf labour chained to it, and on the other of the labour of the individual with
small capital commanding the labour of journeymen. The organisation of both was determined
by the restricted conditions of production – the small‐scale and primitive cultivation of the land,
and the craft type of industry. There was little division of labour in the heyday of feudalism.
 [48] The fact is, therefore, that definite individuals who are productively active in a definite way
enter into these definite social and political relations.
 The social structure and the State are continually evolving out of the life process of definite
individuals, but if individuals, not as they may appear in their own or other people’s imagination,
but as they really are, i.e., as they operate, produce materially, and hence as they work under
definite material limits, presuppositions and conditions independent of their will.

History
 [49] The first historical act is thus the production of the means to satisfy these needs, the
production of material life itself. Therefore in any interpretation of history one has first of all to
observe this fundamental fact in all its significance and all its implication and to accord it its due
importance.
 The second point is that the satisfaction of the first need leads to new needs; and this
production of new needs is the first historical act.
 The third circumstance which, from the very outset, enters into historical development, is that
men, who daily remake their own life, begin to make other men, to propagate their kind: the
relation between man and woman, parents and children, the family.
 The production of life, both of one’s own in labour and of fresh life in procreation, now appears
as a double relationship: on the one hand as a natural, on the other as a social relationship. By
social we understand the co‐operation of several individuals, no matter under what conditions,
in what manner and to what end. It follows from this that a certain mode of production, or
industrial stage, and this mode of co‐operation is itself a “productive force”.
 [52] It follows from this that all struggles within the State, the struggle between democracy,
aristocracy, and monarchy, the struggle for the franchise, etc etc are merely the illusory forms in
which the real struggles of the different classes are fought out among one another... Further, it
follows that every class which is struggling for mastery, even when its domination, as is the case
with the proletariat, postulates the abolition of the old form of society in its entirety and of
19
domination itself, must first conquer for itself political power in order to represent its interest in
turn as the general interest, which in the first moment it is forced to do.
 This “estrangement” can, of course, only be abolished given two practical premises. For it to
become an “intolerable” power, i.e., a power against which men make a revolution, it must
necessarily have rendered the great mass of humanity “propertyless” and produced, at the same
time, the contradiction of an existing world of wealth and culture, both of which conditions
presuppose a great increase in productive power, a high degree of its development. And on the
other hand, this development of productive forces (which itself implies the actual empirical
existence of men in their world‐historical, instead of local, being) is an absolutely necessary
practical premise because without it want is merely made general, and with destitution the
struggle for necessities and all the old filthy business would necessarily be reproduced; and
furthermore, because only with this universal development of productive forces is [53] a
universal intercourse between men established, which produces in all nations simultaneously
the phenomenon of the “propertyless” mass (universal competition), makes each nation
dependent on the revolutions of the others, and finally has put world‐historical, empirically
universal individuals in place of local ones.
 Communism is for us not a state of affairs which is to be established, an ideal to which reality
[will] have to adjust itself. We call communism the real movement which abolishes the present
state of things.
 The form of intercourse determined by the existing productive forces at all previous historical
stages, and in its turn determining these, is civil society.
 Civil society embraces the whole material intercourse of individuals within a definite stage of the
development of productive forces. It embraces the whole commercial and industrial life of a
given stage and, insofar, transcends the State and the nation, though, on the other hand again, it
must assert itself in its foreign relations as nationality, and inwardly must organise itself as
State... Civil society as such only develops with the bourgeoisie; the social organisation evolving
directly out of production and commerce, which in all ages forms the basis of the State and of
the rest of the idealistic superstructure, has, however, always been designated by the same
name.

Concerning the Production of Consciousness
 In history up to the present it is certainly an empirical fact that separate individuals have, with
the broadening of their activity into world‐historical activity, become more and more enslaved
under a power alien to them, a power which has become more and more enormous and, in the
last instance, turns out to be the world market. But it is just as empirically established that, by
the overthrow of the existing state of society by the communist revolution and the abolition of
private property which is identical with it, this power, will be dissolved; and that then the
liberation of each single individual will be accomplished in the measure in which history
becomes transformed into world history.
 [55] Feuerbach’s whole deduction with regard to the relation of men to one another goes only
so far as to prove that men need and always have needed each other. He wants to establish
consciousness of this fact, that is to say, like the other theorists, merely to produce a correct
consciousness about [56] an existing fact; whereas for the real communist it is a question of
overthrowing the existing state of things. We thoroughly appreciate, moreover, that Feuerbach,
in endeavouring to produce consciousness of just this fact, is going as far as a theorist possible
can, without ceasing to be a theorist and philosopher.
 The millions of proletarians and communists, however, think differently and will prove this in
time, when they bring their “existence” into harmony with their “essence” in a practical way, by
means of a revolution.
20
 Nor will we explain to them that it is only possible to achieve real liberation in the real world and
by employing real means, that slavery cannot be abolished without the steam engine and the
mule and spinning‐jenny, serfdom cannot be abolished without improved agriculture, and that,
in general, people cannot be liberated as long as they are unable to obtain food and drink,
housing and clothing in adequate quality and quantity. “Liberation” is a historical and not a
mental act, and it is brought about by historical conditions, the [development] of industry,
commerce, agriculture, the [conditions of intercourse].
 In reality and for the practical materialist, i.e., the communist, it is a question of revolutionising
the existing world, of practically attacking and changing existing things. When occasionally we
find such views with Feuerbach, they are never more than isolated surmises and have much too
little influence on his general outlook to be considered here as anything else than embryos
capable of development. Feuerbach’s “conception” of the sensuous world is confined on the one
hand to mere contemplation of it, and on the other to mere feeling.
 [57] Certainly Feuerbach has a great advantage over the “pure” materialists in that he realises
how man too is an “object of the senses”. But apart from the fact that he only conceives him as
an “object of the senses”, not as “sensuous activity” because he still remains in the realm of
theory and conceives of men not in their given social connection, not under their existing
conditions of life, which have made them what they are, he never arrives at the really existing
active men, but stops at the abstraction “man”, and gets no further than recognising “the true,
individual, corporeal man” emotionally, i.e., he knows no other “human relationships” “of man
to man” than love and friendship, and even then idealised.
 [58] History is nothing but the succession of the separate generations, each of which exploits the
materials, the capital funds, the productive forces handed down to it by all preceding
generations, and thus, on the one hand, continues the traditional activity in completely changed
circumstances and, on the other, modifies the old circumstances with a completely changed
activity.
 The further the separate spheres, which act on one another, extend in the course of this
development, the more the original isolation of the separate nationalities is destroyed by the
developed mode of production and intercourse and the division of labour between various
nations naturally brought forth by these, the more history becomes world history.
 The ideas of the ruling class are in every epoch the ruling ideas: ie the class which is the ruling
material force of society, is at the same time its ruling intellectual force. The class which has the
means of material production at its disposal, has control at the same time over the means of
mental production, so that thereby, generally speaking, the ideas of those who lack the means
of mental production are subject to it.

Communism. The production of the form of intercourse itself.
 [62] Communism’s organisation is, therefore, essentially economic, the material production of
the conditions of this unity; it turns existing condition into conditions of unity.
 [64] The transformation, through the division of labour, of personal powers (relationships) into
material powers, cannot be dispelled by dismissing the general idea of it from one’s mind, but
can only be abolished by the individuals again subjecting these material powers to themselves
and abolishing the division of labour. This is not possible without the community. Only in
community [with others has each] individual the means of cultivating his gifts in all directions;
only in the community, therefore, is personal freedom possible... In the real community the
individuals obtain their freedom in and through their association.
 [65] This subsuming of individuals under definite classes cannot be abolished until a class has
take shape, which has no longer any particular class interest to asset against the ruling class.

Engels and the ‘determination [of law, etc] in the last analysis’
21

Selected letters by Engels in Marx and Engels, Selected Correspondence
Engels to Joseph Bloch in Konigsberg (London, September 21, 1890)
 [74] According to the materialist conception of history, the ultimately determining factor in
history is the production and reproduction of real life. Neither Marx nor I have ever asserted
more than this. Hence if somebody twists this into saying that the economic factor is the only
determining one, he transforms that proposition into a meaningless abstract, absurd phrase. The
economic situation is the basis, but the various elements of the superstructure – political forms
of the class struggle and its results, such as constitutions established by the victorious class after
a successful battle, etc, juridical forms, and especially the reflections of all these struggles in the
brains of the participants, political, legal, philosophical theories, religious views and their further
development into systems of dogmas – also exercise their influence upon the course of the
historical struggles and in many cases determine their form in particular. There is an interaction
of all these elements in which, amid all the endless host of accidents the economic movement is
finally bound to assert itself.
 [75] Marx and I are ourselves partly to blame for the fact that the younger people sometimes lay
more stress on the economic side than is due to it. We had to emphasise the main principle vis‐
à‐vis our adversaries, who denied it, and we had not always the time, the place or the
opportunity to give their due to the other factors involved in the interaction.

Engels to Conrad Schmidt in Berlin (London, October 27, 1890)
 [76] It is the interaction of the 2 unequal forces: on the one hand, the economic movement, on
the other, the new political power, which strives for as much independence as possible, and
which, having once been set up, is endowed with a movement of its own. On the whole, the
economic movement prevails, but it has also to endure reactions from the political movement
which it itself set up and endowed with relative independence, from the movement of the state
power, on the one hand, and of the opposition simultaneously engendered, on the other.
 [77] Similarly with law. As soon as the new division of labour which creates professional lawyers
becomes necessary, another new and independent sphere is opened up which, for all its general
dependence on production and trade, has also a specific capacity for reacting upon these
spheres. In a modern state, law must not only correspond to the general economic condition
and be its expression, but must also be an internally coherent expression which does not, owing
to internal conflicts, contradict itself.
 To a great extent the course of the “development of law” simply consists in first attempting to
eliminate contradictions which arise from the direct translation of economic relations into legal
principles, and to establish a harmonious system of law, and then in the repeated breaches
made in this system by the influence and compulsion of further contradictions (I am speaking
here for the moment only of civil law).
 [78] The precondition of the philosophy of each epoch regarded as a distinct sphere in the
division of labour is a definite body of thought which is handed down to it by its predecessors,
and which is also its starting point. And that is why economically backward countries can still
play first fiddle in philosophy: France in the 18th century as compared with England, on whose
philosophy the French based themselves, and later Germany as compared with both. But both in
France and in Germany philosophy and the general blossoming of literature at that time were
the result of an economic revival. The ultimate supremacy of economic development is for me
an established fact in these spheres too, but it operates within the terms laid down by the
particular sphere itself: in philosophy, for instance, by the action of economic influences upon
the existing philosophic material which has been handed down by predecessors. Here economy
creates nothing anew, but it determines the way in which the body of thought found in
22
existence is altered and further developed, and that too for the most part indirectly, for it is the
political, legal and moral reflexes which exert the greatest direct influence on philosophy.
 What these gentlemen all lack is dialectics. They always see only cause here, effect there. That
this is an empty abstraction, that such metaphysical polar opposites exist in the real world only
during crises, and that the whole vast process goes on in the form of interaction – though very
unequal forces, the economic movement being by far the strongest, the primary and most
decisive and that in this context everything is relative and nothing absolute – they cannot grasp
at all.

Engels to Franz Mehring in Berlin (London, July 14, 1898)
 [79] The historical ideologist thus possesses in every sphere of science material which has arisen
independently out of the thought of previous generations and has gone through its own
independent course of development in the brains of these successive generations. True, external
facts belonging to one or another sphere may have exercised a codetermining influence on this
development, but the tacit presumption is that these facts themselves are also only the fruits of
a process of thought, and so we still remain within that realm of mere thought, which apparently
has successfully digested even the hardest facts.

Engels to Starkenburg (London, January 25, 1894)
 [81] Political, legal, philosophical, religious, literary, artistic. Etc, development is based on
economic development. But all these react upon one another and also upon the economic basis.
One must think that the economic situation is cause, and solely active, whereas everything else
is only passive effect. On the contrary, interaction takes place on the basis of economic
necessity, which ultimately always asserts itself.
 The further the particular sphere which we are investigating is removed from the economic
sphere and approaches that of pure abstract ideology, the more shall we find it exhibiting
accidents in its development, the more will its curve run zigzag. But if you plot the average axis
of the curve, you will find that this axis will run more and more nearly parallel to the axis of
economic development the longer the period considered and the wider the field dealt with.

The withering away of state and law

Engels, Anti‐Duhring
 [83] By more and more driving towards the conversion of the vast socialised means of
production into state property, it itself points the way for the carrying through of this revolution.
The proletariat seizes the state power, and transforms the means of production in the first
instance into state property. But in doing this, it puts an end to itself as the proletariat, it puts an
end to all class differences and class antagonisms, it puts an end also to the state as the state.
Former society, moving in class antagonisms, had need of the state, that is, an organisation of
the exploiting class at each period for the maintenance of its external conditions of production;
that is, therefore, for the forcible holding down of the exploited class in the conditions of
oppression determined by the existing mode of production. The state was the official
representative of society as a whole, its embodiment in a visible corporation; but it was this only
in so far as it was the state of that class which itself, in its epoch, represented society as a whole.
 When ultimately it becomes really representative of society as a whole, it makes itself
superfluous. As soon as there is no longer any class of society to be held in subjection; as soon
as, along with class domination and the struggle for individual existence based on the former
anarchy of production, the collisions and excesses arising from these have also been abolished,
there is nothing more to be repressed which would make a special repressive force, a state,
necessary. The first act in which the state really comes forward as the representative of society
23
as a whole – the taking possession of the means of production in the name of society – is at the
same time its last independent act as a state.
 The state is not “abolished”, it withers away.

The role of law in the transition period from capitalism to socialism

Marx, Preface to The Critique of the Gotha Programme, in Marx, Political Writings, Vol 3, The First
International and After
 [84] We are dealing here with a communist society, not as it has developed on its own
foundations, but on the contrary, just as it emerges from capitalist society. In every respect,
economically, morally, intellectually, it is thus still stamped with the birth‐marks of the old
society from whose womb it has emerged.
 In spite of such progress this equal right still constantly suffers a bourgeois limitation. The right
of the producers is proportional to the labour they do; the equality consists in the fact that
measurement is by the same standard, labour. One person, however, may be physically and
intellectually superior to another and thus be able to do more labour in the same space of time
or work for a longer period.
 It does not acknowledge any class distinctions, because everyone [85] is just a worker like
everyone else, but it gives tacit recognition to a worker’s individual endowment and hence
productive capacity as natural privileges. This right is thus in its content one of inequality, just
like any other right.
 Such defects, however, are inevitable in the first phase of communist society, given the specific
form in which it has emerged after prolonged birth‐pangs from capitalist society. Right can never
rise above the economic structure of a society and its contingent cultural development.
 If a more advanced phase of communist society, when the enslaving subjugation of individuals
to the division of labour, and thereby the antithesis between intellectual and physical labour,
have disappeared; when labour is no longer just a means of keeping alive but has itself become a
vital need; when the all‐round development of individuals has also increased their productive
powers and all the springs of cooperative wealth flow more abundantly – only then can society
wholly cross the narrow horizon of bourgeois right and inscribe on its banner: From each
according to his abilities, to each according to his needs!
 Between capitalist and communist society lies a period of revolutionary transformation from
one to the other. There is a corresponding period of transition in the political sphere and in this
period the state can only take the form of a revolutionary dictatorship of the proletariat.

Marxism and the Form of Law: E B Pashukanis and the Commodity Exchange Theory of Law

E B Pashukanis, The General Theory of Law and Marxism, in Pashukanis: Selected Writings on
Marxism and Law
 [86] Scholastic wisdom – the basic flaw in formulae of this type is their inability to embrace the
concept of law in its actual movement, revealing the plenitude of its internal parts and
relationships. Instead of displaying the concept of law in its most final and exact form, and
thereby showing the significance of this concept for a specific historical period, they present us
with purely verbal general propositions about “external authoritarian regulation” – which apply
equally well to all periods and stages of development of human societies. A complete analogy to
this is provided by those attempts to give a definition of the concept of economy (in political
economy) which would include all historical periods.
 [87] Only bourgeois‐capitalist society creates all the conditions necessary for the legal element
in social relationships to achieve its full realisation.
24
 [89] The new communist society, in Marx’s words, must for some time bear “in every respect,
economically, morally and intellectually, the clear imprint of the old society from whose womb it
appeared”.
 Marx stresses that despite the radical changes in content and form “the same principle prevails
as that which regulates the exchange of commodities: a definite amount of labour in one form is
exchanged for the same amount of labour in another form”. To the extent that the social
relationships of the individual producer continue to preserve the form of equivalent exchange,
so too they continue to preserve the form of law. “By its very nature, law is merely the
application of an equal scale” But this ignores inherent differences in individual ability, and
therefore “by its content this law, like every law, is a law of inequality”.
 The complete withering away of state and law will be accomplished, in Marx’s opinion, only
when “labour has ceased to be a means of life and has become life’s prime want”, when the
productive forces have expanded with the all‐round development of the individual, when
everyone labours voluntarily in accordance with his own abilities, or, as Lenin says, “when the
individual does not calculate with the heartlessness of a Shylock whether he has worked half an
hour longer than anyone else” in a word, when the form of equivalent relations will be finally
overcome.
 Marx therefore envisioned the transition to developed communism, not as a transition to new
forms of law, but as the withering away of the legal form in general, as the liberation from this
inheritance of the bourgeois age which the bourgeoisie was itself condemned to endure.
 [90] Even law, most generally defined, exists as a form not just in the minds and theories of
learned jurists. It parallels a real history which unfolds itself not as a system of thought, but as a
special system of social relationships. People enter these relationships not because they have
consciously chosen to do so, but because the conditions of production necessitate it. Man is
transformed into a legal subject in the same way that a natural product is transformed into a
commodity with its mysterious quality of value.
 [91] The basic assumption of legal regulation is thus the opposition of private interests. At the
same time the latter is the logical premise of the legal form and the real cause of the
development of the legal superstructure. The conduct of people may be regulated by the most
complex rules but the legal element in this regulation begins where the individualisation and
opposition of interests begins. “Controversy”, says Gumplowicz, “is the basic element of
everything legal”. Unity of purpose is, on the contrary, the premise of technical regulation.
 It is not difficult to see that the possibility of taking a legal perspective derives from the fact that
the most diverse relationships in commodity‐producing societies are organised on the model of
relationships of commercial circulation, and inscribed in the form of law.
 [92] We have to a certain extent now anticipated the answer to the question posed at the
outset: where shall we look for that unique social relationship whose inevitable expression is the
form of law? We will try to show in more detail that this relationship is the relationship of
possessors of commodities.
 As the wealth of capitalist society assumes the form of an enormous accumulation of
commodities, society presents itself as an endless chain of legal relationships.
 The exchange of commodities assumes an atomised economy. A connection is maintained
between private and isolate economies from transaction to transaction.
 [93] However, Marx himself emphasises the fact that the basic and most deeply set stratum of
the legal superstructure – property relationships – is so closely contiguous with the base that
they are “the same relationships of production expressed in legal language”.
 [94] The economic relationship of exchange must be present for the legal relationship of the
contract of purchase and sale to arise. In its real movement, the economic relationship becomes
the source of the legal relationship.
25
 In a dispute, i.e. in a lawsuit, the parties engaged in economic activity already appear as parties,
i.e. as participants in the legal superstructure; the court in its most primitive form – this is the
legal superstructure par excellence. Through the judicial process the legal is abstracted from the
economic, and appears as an independent element.
 [95] For Marx the analysis of the form of the subject flows directly from the analysis of the form
of commodities.
 Capitalist society is above all a society of commodity owners. This means that in the process of
production the social relationships of people assume an objectified form in the products of
labour and are related to each other as values.
 If a commodity acquires value independently of the will of the subject producing it, then the
realisation of value in the process of exchange assumes a conscious volitional act on the part of
the owner of the commodity. Or, as Marx says, “commodities cannot send themselves to a
market and exchange themselves with one another. Accordingly, we must turn to their
custodian, to the commodity owner”.
 [96] Therefore, simultaneously with the product of labour assuming the quality of a commodity
and becoming the bearer of value, man assumes the quality of a legal subject and becomes the
bearer of a legal right.
 Simultaneously, social life is reduced on the one hand to the totality of elemental objectified
relationships in which people appear to us as objects and, on the other hand, those relationships
which define man only by reference to an object, ie as a subject, or in legal relationships.
 If economically an object dominates man, since as a commodity it embodies in itself a social
relationship not under the authority of man, then man legally dominates the object because as
its possessor and owner he himself becomes merely the embodiment of the abstract, the
impersonal subject of rights, the pure product of social relationships.
 A legally presumed will, making him absolutely free and equal among other owners of
commodities.
 This idea of separation, the inherent proximity of human individuality, [97] this “natural
condition”, from which “the infinite contradiction of freedom” flows, entirely corresponds to the
method of commodity production in which the producers are formally independent of one
another and are bound by nothing other then the artificially created legal order, by this very
legal condition or, speaking in the words of the same author, “the joint existence of many free
beings, where all must be free and the freedom of one must not prevent the freedom of
another”.
 Accordingly, bourgeois capitalist property ceases to be a weak, unstable and purely factual
possession, which at any moment may be disrupted and must be defended vi et arms. It turns
into an absolute, immovable right which follows the object everywhere that change carried it
and which from the time that bourgeois civilisation affirmed its authority over the whole globe,
is protected in its every corner by laws, police, courts.
 [98] In the development of legal categories, the ability to execute exchange transactions is only
one of the concrete phenomena of the general quality of the capacity to have legal rights and to
conduct transactions.
 Custom or tradition, as a higher basis than the individual for legal claims, corresponds to the
feudal system with its limitations and stagnation. Tradition or custom is in essence something
included in notoriously rather narrow geographic boundaries. Therefore, every right is thought
of merely as an attribute of a specific concrete subject or of a group of subjects. In the feudal
world, “each right was a privilege” (Marx). Each city, each estate, each guild lived according to its
law which followed a man wherever he was. The idea of a formal legal status, common to all
citizens, general for all people, was absent in this period. Corresponding to this in the economic
field were self‐sufficient close economies, prohibitions of import and export etc.
26
 [99] Only with the full development of bourgeois relationships did law obtain an abstract
character. Each man became a man in general, all labour was equated with socially useful labour
in general, every subject became an abstract legal subject. Simultaneously, the norm also
assumed the logically perfected form of the abstract general law.
 Thus, the legal subject is the abstract commodity owner elevated to the heavens. His will – will
understood in a legal sense – has its real basis in the wish to alienate in acquisition and to
acquire in alienation. For this desire to be realised it is necessary that the desires of commodity
owners be directed to one another. Legally, this [100] relationship is expressed as a contract or
an agreement of independent wills. Therefore, contract is one of the central concepts of law.
 Outside contract, the very concepts of subject and will exist only as lifeless abstractions in the
legal sense. In contract these concepts obtain their full movement, and simultaneously the legal
form, in its simplest purest aspect, receives its material basis in the act of exchange. The act of
exchange thus concentrates, in its focus, all the essential elements of political economy and law.
In exchange, in Marx’s words, “a volitional or legal relation is produced by economic
relationships themselves”.
 [101] To the extent that state enterprises are subordinated to the conditions of circulation, so
the bond between them is sharpened not in the form of technical subordination, but in the form
of exchange. Thus, a purely legal, ie judicial procedure, for regulating relationships becomes
possible and necessary; however, along with this there has been preserved, and with the
passage of time undoubtedly will be strengthened, direct, ie administrative‐technical
management by the procedure of subordination to the general economic plan.
 [102] With respect to our transitional period, the following should be noted. If, in the age of
domination of impersonal finance capital, the real opposition of the interests of individual
capitalist groups (disposing of their own and other’s capital) continue to be preserved,
nevertheless proletarian state capitalism eliminates the real opposition of interests with
nationalised industry and preserves the separation of autonomy of individual economic
organisations (similar to private business) only as a method.
 Therefore during our transitional period the form of law as such does not conceal those
unlimited possibilities which were opened up for it by bourgeois capitalist society at the dawn of
its birth. On the contrary, it temporarily binds us to its narrow horizons. It exists only so as finally
to exhaust itself.
 The task of Marxist theory consists in verifying this general conclusion, and researching it in
concrete historical material.
 When we study the tempo and forms of outmoded value relationships in economics and,
together with it, the withering away of private law elements and the legal superstructure, and
finally the gradual expulsion of the legal superstructure itself, only then can we say to ourselves
that we have explained at least one aspect of the process of creating the classless culture of the
future.
 [103] Free and equal commodity owners meeting in the market are free and equal only in the
abstract relationship between buyer and seller. In actual life they are tied to each other by many
relationships of dependence.
 Of course, a jurist may show a greater or lesser flexibility in his adaptation to the facts, for
example by taking into account written law in addition to those unwritten rules which have been
formed in state practice, but this does not change his fundamental position in relation to reality.
 [104] The first difficulty is the fact that modern criminal law does not proceed primarily from the
harm done to the victim but from the violation of the norm established by the state.
 This division, in which a state authority appears both in the role of a party (the prosecutor) and
in the role of a judge, shows that as a legal form the criminal process is indivisible from the
figure of the victim demanding “retribution”. It is therefore indistinguishable from the more
general form of agreement. The prosecutor, as is expected of a “party”, asks a “high price”, i.e. a
27
strict punishment; the criminal seeks leniency, a “discount”, the judge decrees “according to
justice”.
 [105] In the second place, modern criminal law introduced the psychological element into the
concept of responsibility and thus gave it a greater flexibility... However, this new element, the
degree of guilt, by no means excludes the principle of equivalent exchange, but derives from it
and creates a new basis for its application. What does this division signify other than a
clarification of the conditions of the bourgeois judicial transaction! The gradation of liability is
the basis for the gradation of punishment – a new, if you wish, ideal or psychological element,
which is combined with the material element (the injury) and the objective element (the act) – in
order to provide a joint basis for determining the ratio of punishment.
 The idea of responsibility is necessary if punishment is to appear as a method of payment. The
criminal answers for the crime with his freedom, and he answers with an amount of his freedom
which is proportional to the gravity of what he has done.
 [106] A criminal who has served his sentence returns to his starting point, to an isolated social
existence, to the “freedom” to undertake obligations and commit crimes.
 Criminal law, like law in general, is a form of the relationships between egoistic and isolated
subjects, bearing autonomous private interests as commodity owners. Liberation from them will
only occur when the general withering away of the legal superstructure begins.

Marxism and the Rule of Law

Extracts from Hugh Collins, “Marxism and Law”
The Marxist approach to law
 [107] The principal aim of Marxist jurisprudence is to criticise the centrepiece of liberal political
philosophy, the ideal called the Rule of Law.
 Their efforts merge into the general purpose of Marxism which is to mount a sustained offensive
against the existing organisations of power in modern society.
 Marxists examine the real nature of law in order to reveal its functions in the organisations of
power and to undermine the pervasive legitimating ideology in modern industrial societies
known as the Rule of Law.
 A degree of uneasiness is felt over the reduction of concern for bourgeois political liberties and
the principle of legality in government action to the level of treating them as means towards the
revolutionary goal to be used and defended whenever appropriate, rather than desirable ends in
themselves.
 To protect themselves from allegations of totalitarianism, Marxists have acknowledged the
effectiveness of the principle of legality in taming the exercise of official power, they have
admitted that formal equality of political rights is better than status differentiation, and E P
Thompson even goes so far as to ascribe an intrinsic value to the goal of ensuring the legality of
government action. This last position threatens, of course, to slide into a wholesale acceptable
of the Rule of Law.
 [108] On balance, the relatively autonomous state appears to promote alienation rather than
provide the necessary conditions for self‐affirmation through labour because it helps to preserve
the capitalist mode of production. Thus on the basis of either of these 2 standards for assessing
the moral worth of a political principle according to Marxist tenets, a concern for legality and
liberty is unlikely to score very high.
 There is unresolved contradiction in the Marxist position in so far as it includes a blanket
concern for legality and liberty as well as an attack on the Rule of Law. Support for fundamental
political liberties through legal mechanisms may be permitted because of the possible
instrumental gains to the working class movement. But any wider belief in the intrinsic merit of
28
preserving the legality of government action and defending individual rights makes the mistake
of taking the ideology of the Rule of Law at face value.

Conclusion
 [109] That Marxism must ally with liberalism in defence of civil liberties and democratic rights
against their erosion by the state is beyond question. The important question, however, is not
whether an alliance between Marxism and liberalism is necessary, but rather on what terms it
should be forged. By presenting the liberal idea of the “rule of law” as an unqualified human
good, and by excluding a Marxist critique of its limitations, Thompson advocates an alliance
based in effect on the subordination of Marxism to liberalism.
 In this context it is vital that Marxists retain the independence of their critique of the limitations
of liberalism, even as they join hands with liberals in a common struggle against a right‐wing
authoritarian that falsely seeks to appropriate for itself the title of defender of “the rule of law”.

Martin Krygier, “Marxism, Communism and the Rule of Law”
Introduction: Establishing relationships
 [111] It is possible – and it has often been said – that what happened in the Soviet Union and
other communist states bore no relationship to, or was a travesty of, distorted, traduced, Marx’s
thought.
 [112] Marxism, then, was the theory and faith of the founders of communism, and it functioned
as its ideological self‐justification… It is also worth asking whether there was any significant
connection between the writings of Marx, what communists believed, and what they did,
specifically with regard to law and the rule of law.

Law
 [114] As the fundamental task of the government becomes, not military suppression, but
administration, the typical manifestation of suppression and compulsion will be not shooting on
the spot, but trial by court… the court is an organ of power of the proletariat and of the poorest
peasants… the court is an instrument for inculcating discipline.

The rule of law
 [116] When people in the West think of law, it is usually in the context of power: police power or
political power. Law is seen as a means of exercising power. And so it is. But there are many
ways of exercising [117] power.
 Yet it is not enough that government make laws. Insistence on obedience to laws whose
content, meaning, operation and interpretation a government controls, communicates the
government’s requirements and saves bullets. Repressive law is perhaps less terrible than
lawless repression, but it can be terrible all the same.
 Moreover, even apart from repression many governments – communist and fascist governments
pre‐eminently – have had a purely instrumental and voluntarist attitude to law. Law is one
among an array of instruments for translating the government’s – or Party’s – wishes into action
and maintaining social order.
 [118] The rule of law has 3 important aspects:
1. Government by law: When governments do things, an important source of restraint on
power is to require them to do them openly, announce them publicly, in advance, in terms
that people can understand; according to laws with which officials are required to comply,
which are overall fairly stable and general, and which are interpreted within a relatively
stable and independent legal culture of interpretation.
2. [119] Government under law involves a legal/political culture in which it is understood that
even very high political officials are confined and confinable by legal rules and legal
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challenge… [120] Living in a society where law counts it is easy to imagine that that is a
natural state of affairs. In fact it is not natural and it is rare.
3. Rights:
- Accounts of the rule of law often stop here, on the grounds that substantive desiderata
for a good legal and political order go beyond the rule of law; equally important but
something else.
- Despotisms shun the light and they shun restraint. They also have no reason to expose
themselves to either. Government by and under law delivers both.
- The legal order must provide for and protect zones of individual freedom from
interference, negative liberty. Typically such protection takes the form of legal rights,
immunities or protected entitlements. A good society may well do more, but at least it
should do that.
 When writers seek to explain the preconditions for the rule of law…one must look to something
far vaguer but fundamentally more important: a widespread assumption [121] within the society
that law matters and should matter.
 The rule of law is no guarantee of Utopia, for there are no guarantees and no Utopia. It is simply
a fragile, partial, inadequate and precious precondition for a measure of civility in large societies.
 [123] The extent of the resulting lawlessness and arbitrariness of the state varied within
communist polities according to floating distinctions between “political” offences and others,
between such polities and over time. But compared to “normal” polities, arbitrariness was
enormous, was widely felt and rightly resented.
 At the very least it is clear that economic chaos is not unrelated to an absence of legal
predictability and that in turn to the insignificance of the rule of law. And in the long term
political liberty is dependent on stable law as well.

Marxism, communism and the rule of law
 [124] Marx did not believe that law was as important or as valuable in any societies as I have
claimed it to be in our own, and he saw no place for it in communist ones. In particular, his social
theory did not suggest that before the revolution it was, and his moral philosophy did not
suggest that after the revolution it should be, a significant restraint on power.
 Law was not the only social institution which Marx put in the shadow of economic forces and
economically‐based social classes. Elsewhere I have argued that he did the same with
bureaucracy. In neither case was the lack of emphasis simple oversight. It was theoretically
driven. According to that theory, the most important activity in every society is economic
production.
 [125] In the grander scheme of things, law – like bureaucracy – was just not centrally important,
and in any case it had to be understood primarily in terms of its contributions to and
relationships with the social forces which were.
 In Marx’s earliest philosophical writings and journalism, he frequently attacked the
repressiveness of Prussian laws… He believed that repressive laws in general, and class‐based
laws particularly, were in principle curable perversions of what, in conventional Hegelian terms,
he took to be the “essence” of law – the realisation of freedom.
 [126] Law, with its rhetoric of equality, rights, formality, procedures and justice, is a purveyor of
just such illusions – in capitalist societies liberal illusions.
 Many of Marx’s comments on law seek to unmask it and its pretensions. As a limit to the power
of the powerful it is either illusory and systematically partial – for law is involved in class
exploitation and repression – or useful to ruling classes as an ideological emollient and mask for
their real social power, a power which, however well disguised, is fundamental – at least, Engels
came to add after Marx’s death, “ultimately”, “in the last analysis”. It was necessary, not that
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law fulfil any mythical essence, as [127] the young Marx had believed, but that it disappear along
with the state, and with the class society which supported them and which they supported.
 Marx and Engels repeatedly unmasked law – with varying degrees of subtlety and refinement –
either as a repressive instrument of ruling classes or as an ideological mystification of
exploitative class relations or as both. That it might also be liberating was only conceded by
Marx in comparison with the feudal past or with worse versions of the capitalist present,
certainly not in comparison with the socialist and communist future. So to ask Marxist
revolutionaries to make space for restraint by the rule of law would be to voice a quaint liberal
demand for which they were not theoretically – let alone temperamentally – programmed.
 Collins explains the correct position, lest other Marxists might be moved by Thompson’s
apparently confused eloquence:
Support for fundamental political liberties through legal mechanisms may be permitted
because of the possible instrumental gains to the working‐class movement. But any wider
belief in the intrinsic merit of preserving the legality of government action and defending
individual rights makes the mistake of taking the ideology of the Rule of Law at face value.
 [128] Marx never suggested that it would disappear overnight. Indeed he suggested the
opposite. What matters, in the transition from an evil and doomed past to a glorious and
inevitable future, is whose interests repression and ideology are intended to serve. Admittedly,
when fully attained communism will have no truck with law. However for the meantime Marx
had emphasised that there was no quick jump from capitalism to communism. Rather there
would be a “period of the revolutionary transformation from one to the other. There is a
corresponding period of transition in the political sphere and in this period the state can only
take the form of a revolutionary dictatorship of the proletariat”.
 [129] Dissidents in communist states who began to criticise from within Marxism, did not stay
there, and many did not begin there at all. Commonly this was for 3 reasons. First, Marx’s
emphasis on economic power as the fundamental ground of repression seemed inadequate to
explain the politically dominated and driven societies in which they lived. Second and more
specifically, the belief that repression and ideology could always and only be traced to classes
owning the means of production was more and more strained in societies of unprecedented
repressiveness, without private property but with more than enough social division and
exploitation. Third, the idea that the abolition of private property and its replacement with state
ownership was the path to a radiant future came increasingly to seem a surreal and tragic
mistake.
 Marx often wrote of the contribution of law to the formation, organisation and maintenance of
the capitalist mode of production and of capitalist relations of production.
 Pashukanis insisted that law was an integral and indispensable ingredient of capitalism, for it
was required for commodity exchange between millions of independent actors. Not just means
of repression, not merely ideology, law defined the subjects and nature of rights [130] necessary
in a capitalist market economy. The fundamentally important branch of law was not public but
private law, specifically the law of contract. Contract law presupposed independent right‐and‐
duty bearing legal subjects exchanging in the market on the basis of legal equality.
 But if Pashukanis brought law down to earth, it was not for long. Precisely because law of a
particular form was part of the fundament of capitalism, Pashukanis argued, it was only
fundamental in capitalism. Unruly individual exchange would give way to rational and conscious
plans. Indeed it was the rational and planned character of communism that would prove central
to human emancipation from blind dependence on nature and social forces.
 In doing so, he for the first time gave some concrete meaning to the predicted “withering away”
of law in socialism. In place of the independent commodity‐producing‐and‐exchanging atoms of
a capitalist economy – “individualised and antagonistic subjects, each of whom is the bearer of
his own private interest” – socialism would be directed by central planners with “unity of
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purpose”. In place of the clear general rules necessary for these atoms to co‐ordinate their
activities, and hold each other to bargains or sue, “technical regulation” would be a matter of
flexible policy directives, obedient to, not a restraint upon, the directives of the central unified
mind.
 [131] He advocated that a reformed Criminal Code of the RSFER should have only one section,
laying down general principles, and should dispense with sections defining specific crimes and
prescribing penalties. Their aim was to free the judge of restrictions and allow him to “apply
whatever penalty he thought necessary to assure the protection of society”.
 [132] Society and law were to be transformed by the proletarian revolution. In their place would
ultimately develop a society without a division of labour or private property, therefore without
social classes, therefore without class exploitation, therefore without significant conflict and
therefore without the need for protective barriers between man and man or man and state.
 [133] I should emphasise that Marx had nothing to say in favour of the barbarism carried out in
his name… His was a philosophy of freedom, in a profound and pervasive sense. His social theory
was harnessed to a diagnosis of present exploitation and a prophecy of future deliverance which
underlay all that he wrote.
 [134] The question for Marx is what is the relationship between political emancipation and
“universal human emancipation”. The answer is that political emancipation is a partial and self‐
contradictory, even if salutary, step on the way to human emancipation. On the one hand it is
“certainly a big step forward. It may not be the last form of general human emancipation, but it
is the last form of human emancipation within the prevailing scheme of things”. On the other
hand, the last step “within the prevailing scheme of things” is not the truly last step.
 It is partial, for what it renders irrelevant politically it allows to remain relevant privately. Thus
an irreligious state is compatible with private religiosity: “a state can be a free state without man
himself being a free man…the state can have emancipated itself from religion even if the
overwhelming majority is still religious. And the overwhelming majority does not cease to be
religious by being religious in private.
The fact that you can be politically emancipated without completely and absolutely
renouncing Judaism shows that political emancipation by itself is not human emancipation.
 One cannot be devout and free at the same time. Indeed to him freedom of religion, as opposed
to his oxymoronic freedom from religion, represents a contradiction, what might be called a
moral contradiction.
 First, man was to be fully self‐determined, in charge of all that matters to him, not the plaything
of external forces or imaginary projections, among them religious ones. So long as he was
religious he was not truly human, not the Promethean master of his fate who recognised himself
to be so. And until he realised this, shed himself of mistakes, he would remain unfree.
 [135] Political freedom is not nothing, but it is radically less than everything.
 The rights of the citizen tend at least partially in the right direction. However Marx has nothing
good to say of the rights of man.
Liberty is therefore the right to do and perform everything which does not harm others. The
limits within which each individual can move without harming others are determined by law,
just as the boundary between two fields is determined by a stake. The liberty we are here
dealing with is that of man as an isolated monad who is withdrawn into himself…
…the right of man to freedom is not based on the association of man with man but rather on
the separation of man from man. It is the right of this separation, the right of the restricted
individual, restricted to himself.
 [136] His major objections to the survival of Judaism were two: first and more specific, that his
caricature Jew expressed the spirit of civil society and second and more general, that the survival
of Judaism, like the survival of any religion, preserved the difference where there should be
community. That is what is inadequate about the disestablishment of religion:
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It is no longer the essence of community but the essence of difference. It has become the
expression of the separation of man from his community, from himself and from other men,
which is what it was originally.
 [137] There is no evidence that Marx considered any need to protect individuals against their
species or whoever might come to speak on their behalf. Indeed notions of mediating
institutions, zones of protected autonomy and plurality, tolerance and protection of individual
life plans, simple restraint in the pursuit of huge ambitions, are simply absent from Marx’s
utopia and would cut deeply against its grain.
 Lack of concern for the rule of law, in other words, was built into Marxism; it was characteristic,
not careless.
 In sum, Marxism had deep theoretical commitments which put law to one side; it had nothing
good to say about the rule of law; it generated confidence that law would be no part of a good
society; it was imbued with values which made no space for those that the rule of law is
designed to protect; and it reeked with certainty that its values and project would and should
carry all before them.

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Emile Durkheim: Law and Social Cohesion

The Concerns of Social Theory

Emile Durkheim, The Rules of Sociological Method
What is a Social Fact?
 Not only are these types of behavior and thinking external to the individual, but they are
endued with a compelling and coercive power by virtue of which, whether he wishes it or
not, they impose themselves upon him. Undoubtedly when I conform to the of my own free
will, this coercion is not felt or felt hardly at all, since it is unnecessary… it assets itself as
soon as I try to resist… they annul it or make my action conform to the norm if it is already
accomplished but capable of being reversed; or they cause me to pay the penalty for it if it is
irreparable
 Here, the, is a category of facts which present very special characteristics: they consist of
manners of acting, thinking and feeling external to the individual, which are invested with a
coercive power by virtue of which they exercise control over him… and have no existence
save in and through the individual consciousness. Thus they constitute a new species and to
them must be exclusively assigned the term social
 It is true that this word ‘constraint’, in terms of which we define them, is in danger of
infuriating those who zealously uphold out‐and‐out individualism. Since they maintain that
the individual is completely autonomous, it seems to them that he is diminished every time
he is made aware that he is not dependent on himself alone. Yet since it is indisputable
today that most of our ideas and tendencies are not develop by ourselves, but comes to use
form outside, they can only penetrate us by imposing themselves upon us. Moreover, we
know that all social constraints do not necessarily exclude the individual personality
 Now if this external coercive power asserts itself so acutely in cases of resistance, it must be
because it exists in the other instances cited above without our being conscious of it. Hence
we are the victims of an illusion which leads us to believe we have ourselves produced what
has been imposed upon us externally
 Once the assembly has broken up and these social influences have ceased to act upon us,
and we are once more on our own, the emotions we have felt seem an alien phenomenon,
one in which we no longer recognize ourselves. Thus individuals who are normally perfectly
harmless may, when gathered together in a crowd, let themselves be drawn into acts of
atrocity
 What constitutes social facts are the beliefs, tendencies and practices of the group taken
collectively
 It is a condition of the group repeated in individuals because it imposes itself upon then. This
is supremely evidence in those beliefs and practices which are handed down to us ready
fashioned by previous generations. We accept and adopt them because, since they are the
work of the collectivity and one what is centuries old, they are invested with a special
authority that our education has taught us to recognize and respect
 An outburst of collective emotion in a gathering does not merely express the sum total of
what individual feelings share in common, but is something of a very different order, as we
have demonstrated. It is a product of shared existence, of actions and reactions called into
play between the consciousnesses of individuals
 A social fact is identifiable through the power of external coercion which it exerts or is
capable of exerting upon individuals. The presence of this power is in turn recognizable
because of the existence of some pre‐determined sanction, or through the resistance that
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the fact opposes to any individual action that may threaten it. However, it can also be
defined by ascertaining how widespread it is within the group, provided that, as noted
above, one is careful to add a second essential characteristic; that is, that is exists
independently of the particular forms that it may assume in the process of spreading itself
within the group… The presence of constraint is easily ascertainable when it is manifested
externally through some direct reaction of society, as in the case of law, morality, beliefs,
customs and even fashions
 Our definition will therefore subsume all that has to be defined it if states:
A social fact is any way of acting, whether fixed or not, capable of exerting over the
individual an external constraint; or:
Which is general over the whole of a given society whilst having an existence of its own,
independent of its individual manifestations

Emile Durkheim, “Individual and Collective Representations”
 Society has for its substratum the mass of associated individuals
 While on might perhaps contest the statement that all social facts without exception impose
themselves from without upon the individual, the doubt does not seem possible as regards
religious beliefs and practices, the rules of morality and the innumerable precepts of law –
that is to say, all the most characteristic manifestations of collective life. All are expressly
obligatory, and this obligation is the proof that these ways of acting and thinking are not the
work of the individual but come from a moral power above him, that which the mystic calls
God or which can be more scientifically conceived. The same law is found at work in the two
fields
 Furthermore, it can be explained in the same way in the two cases. If one can say that, to a
certain extent, collective representations are exterior to individual minds, it means that they
do not derive from them as such but from the association of minds, which is a very different
thing. No doubt in the making of the whole each contributes his part, but private sentiments
do not become social except by combination under the action of the sui generis forces
developed in association. In such a combination, with the mutual alterations involved, they
become something else
 Those, then, who accuse us of leaving social life in the air because we refuse to reduce it to
the individual mind have not, perhaps, recognized all the consequences of their objection
 We must, then, explain phenomena that are the product of the whole by the characteristic
properties of the whole, the complex by the complex, social facts by society, vital and
mental facts by the sui generis combinations from which they result

The General Role of Law in Society: the expression and symbol of the society’s form of social
organization

Emile Durkheim, The Division of Labor in Society
 Indeed, social life, especially where it exists durably, tends inevitably to assume a definite
form and to organized itself, and law is nothing else that this very organization. We can thus
be certain of finding reflected in law all the essential varieties of social solidarity
 The objection may be raised, it is true, that social relations can fix themselves without
assuming a juridical form. Some of them do not attain this degree of consolidation and
precision, but they do not remain undetermined on that account. Instead of being regulated
by law, they are regulated by custom
 This opposition, however, crops up only in quite exceptional circumstances. This comes
about when law no longer corresponds to the state of existing society, but maintains itself,
35
without reason for so doing, by the force of habit… But it only arises in rare and pathological
cases which cannot endure without danger
 If, the, there are types of social solidarity which custom alone manifests, they are assuredly
secondary; law produces those which are essential and they are the only ones we need to
know
 Law and morality are the totality of ties which bind each of us to society, which makes
unitary, coherent aggregate of the mass of individuals. Far from serving to emancipate the
individual, or disengaging him from the environment which surrounds him, it has, on the
contrary, the function of making him a integral part of a whole, and, consequently, of
depriving him of some liberty of movement

The Non‐Contractual Elements of Contract

 To be sure, when men unite in a contract, it is because, through the division of labor, either
simple or complex, they need each other. But in order for them to co‐operate harmoniously,
it is not enough that they enter into a relationship, nor even that they feel the state of
mutual dependence in which they find themselves. It is still necessary that the conditions of
this co‐operation be fixed for the duration of their relations
 Even as in the internal workings of the individual organism each organ is in conflict with
others whilst co‐operating with them, each of the contractants, while needing the other,
seeks to obtain what he needs at the least expense; that is to say, to acquire as many rights
as possible in exchange for the smallest possible obligations
 From this point of view, the law of contracts appears in an entirely different light. It is no
longer simply a useful complement of individual convention; it is their fundamental norm.
Imposing itself upon us with the authority of traditional experience, it constitutes the
foundation of our contractual relations. The law confers its rights upon us and subjects us to
duties deriving from such acts of our will
 The law of contracts exercises over us a regulative force of the greatest importance, since it
determines what we ought to do and what we can require. It is a law which can be changed
only by the consent of the parties, but so long as it is not abrogated or replaced, it guards its
authority, and, moreover, a legislative act can be passed only in rare cases
 If, in principle, society lends it an obligatory force, it is because, in general, the accord of
particular wills suffices to assure, with the preceding reservations, the harmonious coming
together of diffuse social functions. The role of society is not, then, in any case, simply to see
passively that contracts are carried out. It is also to determine under what conditions they
are executable, and if it s necessary, to restore them to their normal form

Crime and Punishment

Emile Durkheim, The Rules of Sociological Method
 There is no phenomenon which represents more incontrovertibly all the symptoms of
normality, since it appears to be closely bound up with the conditions of all collective life. TO
make crime a social illness would be to conceded that sickness is not something accidental,
but on the contrary derives in certain cases form the fundamental constitution of the living
creature
 To classify crime among the phenomena of normal sociology is not merely to declare that it
is an inevitable though regrettable phenomenon arising from the incorrigible wickedness of
men; it is to assert that it is a factor in public health, an integrative element in any healthy
society
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 Crime is normal because it is completely impossible for any society entirely free of it to exist.
In any society, for actions regarded as criminal to cease, the feelings that they offend would
need to be found in each individual consciousness without exception and in the degree of
strength requisite to counteract the opposing feelings. Even supposing that this condition
could effectively be fulfilled, crime would not thereby disappear; it would merely change in
form, for the very cause which made the well‐springs of criminality to dry up would
immediately upon up new ones
 For murderers to disappear, the horror of bloodshed must increase in those strata of society
from which murderers are recruited; but for this to happen the abhorrence must increase
throughout society. Moreover, the ever absence of crime would contribute directly to
bringing about that result, for a sentiment appears much more respectable when it is always
and uniformly respected
 Imagine a community of saints in an exemplary and perfect monastery. In it crime as such
will be unknown, but faults that appear venial to the ordinary person will arouse the same
scandal as does normal crime in ordinary consciences
 The moral conscience of society would be found in its entirety in every individual, endowed
with sufficient force to prevent the commission of any act offending against it, whether
purely conventional failings or crimes. But such universal and absolute uniformity is utterly
impossible, for the immediate physical environment in which each one of us is placed, our
hereditary antecedents, the social influences upon which we depend, vary from one
individual to another and consequently cause a diversity of consciences… Since there cannot
be a society in which individuals so not diver to some extent from the collective type, it is
also inevitable that among these deviations some assume a criminal character
 Thus crime is necessary. It is linked to the basic conditions of social life, but on this very
account is useful, for the conditions to which it is bound are themselves indispensable to the
normal evolution of morality and law
 For these transformations to be made possible, the collective sentiments at the basis of
morality should not prove unyielding to change, and consequently should be only
moderately intense
 If there were no crimes, this condition would not be fulfilled, for such a hypothesis presumes
that collective sentiments would have attained a degree of intensity unparalleled in history.
Nothing is good indefinitely and without limits. The authority which the moral consciousness
enjoys must not be excessive, for otherwise no one would dare attack it and it would petrify
too easily into an immutable form
 Beyond this indirect utility, crime itself may play a useful part in this evolution. Not only does
it imply that the way to necessary changes remains open, but in certain cases it also directly
prepares for these changes. Where crime exists, collective sentiments are not only in the
state of plasticity necessary to assume a new form, but sometimes it even contributes to
determining beforehand the shape they will take on
 Contrary to current ideas, the criminal no longer appears as an utterly unsociable creature, a
sort of parasitic element, a foreign, unassimilable body introduce into the bosom of society.
He plays a normal role in social life… if crime is in no way pathological, the object of
punishment cannot be to cure it and its true function must be sought elsewhere

 Even when a criminal act is certainly harmful to society, it is not true that the amount of
harm that it does is regularly related to the intensity of the repression which it calls forth. In
the penal law of the most civilized people, murder is universally regarded as the greatest of
crimes. However, an economic crisis, a stock‐market crash, even a failure, can disorganize
the social body more severely than an isolated homicide… the example we have just cited
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show that an act can be disastrous to society without incurring the least repression. This
definition of crime is, then, completely inadequate
 In effect, the only common characteristic of all crimes is that they consist – except some
apparent exceptions with which we shall deal later – in acts universally disapproved of by
members of each society… crime shocks sentiments which, for a given social system, are
found in all healthy consciences
 The rules which prohibit these acts and which penal law sanctions are the only ones to which
the famous juridical axiom ignorance of the law is no excuse is applied without fiction. As
they are graven in all consciences, everybody knows them and feels that they are well
founded. It is at least true of the normal state
 This explains the particular manner in which penal law is codified. Every written law has a
double object: to prescribe certain obligations, and to define the sanctions which are
attached to them
o Penal law… sets forth only sanctions, but says nothing of the obligations to which
they correspond. It does not say, first off, as does civil law; Here is the duty; but
rather, Here is the punishment
 There can be only one reason for this, which is that the rule is known and accepted by
everybody. When a law of custom becomes written and is codified, it is because questions of
litigation demand a more definite solution. If the custom continues to function silently,
without raising any discussion or difficulties, there is no reason for transforming it. Since
penal law is codified only to establish a graduated scale of punishments, it is thus the scale
alone which can lend itself to doubt
 Penal laws are remarkable for their neatness and precision, while purely moral rules are
generally somewhat nebulous
 The totality of beliefs and sentiments common to average citizens of the same society forms
a determinate system which has its own life; one may call it the collective or common
conscience. No doubt, it has not a specific organ as a substratum; it is, by definition, diffuse
in every reach of society
 We can, then, to resume the preceding analysis, say that an act is criminal when it offends
strong and defined states of the collective conscience
 The only one which would satisfy this condition is that opposition between a crime,
whatever it is, and certain collective sentiments. It is, accordingly, this opposition which
makes crime rather than being a derivative of crime. In other words, we must not say that an
action shocks the common conscience because it is criminal, but rather that it is criminal
because it shocks the common conscience. We do not reprove it because it is a crime, but it
is a crime because we reprove it… By this alone can we recognize it: a sentiment, whatever
its origin and end, is found in all consciences with a certain degree of force and precision,
and every action which violates it is a crime
 Today, it is said, punishment has changed its character; it is no longer to avenge itself that
society punishes, it is to defend itself. The pain which it inflicts is in its hands no longer
anything but a methodical means of protection. It punishes, not because chastisement offers
it any satisfaction for itself, but so that the fear of punishment may paralyze those who
contemplate evil. This is no longer choler, but a reflected provision which determines
repression. The preceding observations could not then be made general; they would deal
only with the primitive form of punishment and would not extent to the existing form…
Thus, vengeance is far from having had the negative and sterile role in the history of
mankind which is attributed to it. It is a defensive weapon which has its worth, but it is a
rude weapon
 In supposing that punishment can really serve to protect us in the future, we think that it
ought to be above all an expiation of the past. The proof of this lies in the minute
38
precautions we take to proportion punishment as exactly as possible to the severity of the
crime; they would be inexplicable if we did not believe that the culpable ought to suffer
because he has down evil and in the same degree. In effect, this gradation is not necessary if
punishment is only a means of defense. No doubt, there would be danger for society in
having the gravest acts considered simple delicts; but it would be greater, in the majority of
cases, if the second were considered as the first
 Punishment, thus, remains for us what it was for our fathers. It is still an act of vengeance
since it is an expiation. What we avenge, what the criminal expiates, is the outrage to
morality
 In fact, the sentiments thus in question derive all their force from the fact that they are
common to everybody. They are strong because they are uncontested. What adds the
peculiar respect of which they are the object is that they are universally respected. But crime
is possible only if this respect is not truly universal. Crime thus damages this unanimity which
is the source of their authority
 [Punishment’s] true function is to maintain social cohesion intact, while maintaining all its
vitality in the common conscience. Denied so categorically, it would necessarily lose its
energy, if an emotional reaction of the community did not come to compensate its loss, and
it would result in a breakdown of social solidarity. It is necessary, then, that it be affirmed
forcibly at the very moment when it is contradicted, and the only means of affirming it is to
express the unanimous aversion which the crime continues to inspire, by an authentic act
which can consist only in suffering inflicted upon the agent… That is why we are right in
saying that the criminal must suffer in proportion to his crime
 Without this necessary satisfaction, what we call the moral conscience could nto be
conserved. We can thus say without paradox that punishment is above all designed to act
upon upright people, for, since it serves to heal the wounds made upon collective
sentiments, it can fill this role only where these sentiments exist, and commensurately with
their vivacity.
 In short, in order to form an exact idea of punishment, we must reconcile the two
contradictory theories which deal with it: that which sees it as expiation, and that which
makes it a weapon for social defense… If it must be expiatory, that does not mean that by
some mystical virtue pain compensates for the error, but rather that it can produce a socially
useful effect only under this condition

The Distinctiveness of Modern Society: The Division of Labor

 Nowadays, the phenomenon has developed so generally it is obvious to all. We need have
no further illusions about the tendencies of modern industry; it advances steadily towards
powerful machines, towards great concentrations of forces and capital, and consequently to
the extreme division of labor

Two Types of Social Solidarity: Mechanical solidarity – through likeness – in societies with little
division of labour

 It is an historical law that mechanical solidarity which first stands alone, or nearly so,
progressively loses ground, and that organic solidarity becomes, little by little, preponderant

Organic Solidarity – through the division of labour – in modern societies

39
 In all these examples, the most remarkable effect of the division of labor is not that it
increases the output of functions divided, but that it renders them solidary. Its role in all
these cases is not simply to embellish or ameliorate existing societies, but to render societies
possible which, without it, would not exist
 We can then conclude by saying that all social links which result from likeness progressively
slacken
 This law, in itself, is already enough to show the tremendous grandeur of the role of the
division of labor. In sum, since mechanical solidarity progressively becomes enfeebled, life
properly social must decrease or another solidarity must slowly come in to take the place of
that which has gone
 The more we advance, the more profoundly do societies reveal the sentiment of self and of
unity. There must, then, be some other social link which produces this result; this cannot be
any other than that which comes from the division of labor
 If, moreover, one recalls that even where it is more resistant, mechanical solidarity does not
link men with the same force as the division of labor, and that, moreover, it leaves outside
its scope the major part of phenomena actually social, it will become still more evident that
social solidarity tends to become exclusively organic. It is the division of labor which, more
and more, fills the role that was formerly filled by the common conscience. It is the principal
bond of social aggregates of high types
 Quite different is the structure of societies where organic solidarity is preponderant. They
are constituted, not by a repetition of similar, homogeneous segments, but by a system of
different organs each of which has a special role, and which are themselves formed of
differentiated parts. Not only are social elements not of the same nature, but they are not
arranged in the same manner
o The social type rests on principles so different from the preceding that it can
develop only in proportion to the effacement of that preceding type. In effect,
individuals are here grouped, no longer according to their relations of lineage, but
according to the particular nature of the social activity to which they consecrate
themselves
 The segments, or at least the groups of segments united by special affinities become organs.
In a general way, classes and castes probably have no other origin nor any other nature; they
arise from the multitude of occupational organizations being born amidst the pre‐existing
familial organizations
 The social material must enter into entirely new combinations in order to organize itself
upon completely different foundations. But the old structure, so far as it persists, is opposed
to this. That is why it must disappear

Two Types of Law

 Our method has now been fully outlined. Since law reproduces the principal forms of social
solidarity, we have only to classify the different types of law to find therefrom the different
types of social solidarity which correspond to it
 They are of two kinds. Some consist essentially in suffering, or at least a loss, inflicted on the
agent. We call them repressive. They constitute penal law. As for the other type, it does not
necessarily imply suffering for the agent, but consists only of the return of things as they
were, in the reestablishment of troubled relations to their normal state, whether the
40
incriminated act is restored by force to the type whence it deviated, or is annulled, that is,
deprived of all social value. We must then separate juridical rules into two great classes,
accordingly as they have organized repressive sanctions or only restitutive sanctions. The
first comprise all penal law; the second, civil law, commercial law, procedural law,
administrative and constitutional law, after abstraction of the penal rules which may be
found there
 Let us now seek for the type of social solidarity to which each of these two types
corresponds
o The first can be strong only if the ideas and tendencies common to all the members
of the society are greater in number and intensity than those which pertain
personally to each member… The term [mechanical solidarity] does not signify that
it is produced by mechanical and artificial means. We call it that only by analogy to
the cohesion which unites the elements of an inanimate body, as opposed to that
which makes a unity out of the elements of a living body
o It is quite otherwise with the solidarity which the division of labor produces.
Whereas the previous type implies that individuals resemble each other, this type
presumes their different. It is necessary, then, that the collective conscience leave
open a part of the individual conscience in order that special functions may be
established there, functions which it cannot regulate. The more this region is
extended, the stronger is the cohesion which results from this solidarity… Each
organ, in effect, has its epical physiognomy, its autonomy. And, moreover, the unity
of the organism is as great as the individuation of the parts is more marked. Because
of this analogy, we propose to call the solidarity which is due to the division of labor,
organic

Repressive Law

 The analysis of punishment confirms our definition of crime. We began by establishing
inductively that crime consisted essentially in an act contrary to strong and defined states of
the common conscience. We have just seen that all the qualities of punishment ultimately
derive from this nature of crime. That is because the rules that it sanctions express the most
essential social likenesses
 In these conditions, not only are all the members of the group individually attracted to one
another because they resemble one another, but also because they are joined to what is the
condition of existence of this collective type; that is to say, to the society that they form by
their union
 There are in us two consciences: one contains states which are personal to each of us and
which characterize us, while the states which comprehend the other are common to all
society. When it is one fo the elements of this latter which determines our conduct, it is not
in view of our personal interest that we act, but we pursue collective ends. Although distinct,
these two consciences are linked one to the other, since, in sum, they are only one, having
one and the same organic substratum. They are thus solidary
 It is this solidarity which repressive law expresses, at least whatever there is vital in it. It is a
product of the most essential social likenesses, and it has for its effect the maintenance of
the social cohesion which results from these likenesses
 There exists a social solidarity which comes from a certain number of states of conscience
which are common to all the members of the same society. This is what repressive law
materially represents, at least in so far as it is essential. The part that it plays in the general
integration of society evidently depends upon the greater or lesser extent of the social life
41
which the common conscience embraces and regulates. The greater the diversity of
relations wherein the latter makes its action felt, the more also it creates links which attach
the individual to the group; the more, consequently, social cohesion derives completely from
this source and bears its mark

Restitutive Law

Organic Solidarity due to the Division of Labor
 The very nature of the restitutive sanction suffices to show that the social solidarity to which
this type of law corresponds is of a totally different kind. What distinguishes this sanction is
that it is not expiatory, but consists of a simple return in state. If certain things were done,
the judge reinstates them as they would have been. He speaks of law; he says nothing of
punishment. Damage‐interests have no penal character; they are only a means of reviewing
the past in order to reinstate it, as far as possible, to its normal form
 While repressive law tends to remain diffuse within society, restitutive law creates organs
which are more and more specialized: consular tribunals, councils of arbitration,
administrative tribunals of every sort. Even in its most general part, that which pertains to
civil law, it is exercised only through particular functionaries: magistrates, lawyers, etc., who
have become apt in this role because of very special training
 Although these rules are more or less outside the collective conscience, they are not
interested solely in individuals. If this were so, restitutive law would have nothing in
common with social solidarity, for the relations that it regulates would bind individuals to
one another without binding them to society. It is true that, generally, it does not intervene
of itself and through its own movements; it must be solicited by the interested parties. But,
in being called forth, its intervention is none the less the essential cog in the machine, since
it alone makes it function. It propounds the law through the organ of its representatives
 Nothing is more incorrect than considering society as a sort of third‐party arbitrator. When it
is led to intervene, it is not to put to rights some individual interests. It applies to the
particular case which is submitted to it general and traditional rules of law. But law is, above
all, a social thing and has a totally different object than the interest of the pleaders
 Every contract thus supposes that behind the parties implicated in it there is society very
ready to intervene in order to gain respect for the engagements which have been made.
Moreover, it lends this obligatory force only to contracts which have in themselves s social
value, which is to say, those which conform to the rules of law. It is present in all relations
which restitutive law determines, even in those which appear most completely private
 Since rules with restitutive sanctions are strangers to the common conscience, the relations
that they determine are not those which attach themselves indistinctly everywhere. That is
to say, they are established immediately, not between the individual and society, but
between restricted, special parties in society whom they bind. The relations are, the, quite
different from those which repressive law regulates, for the latter attach the particular
conscience to the collective conscience directly and without mediation; that is, the individual
to society
 To sum up: the relations governed by co‐operative law with restitutive sanctions and the
solidarity which they express, result from the division of social labor

Social Pathology: Abnormal Forms of the Division of Labour: Inadequate Legal Regulation: Anomic
division of labour and industrial crises

42
 Though normally the division of labor produces social solidarity, it sometimes happens that
it has different, and even contrary results
 This tension in social relations is due, in part, to the fact that the working classes are not
really satisfied with the conditions under which they live, but very often accept them only as
constrained and forced, since they have not the means to change them
 Small‐scale industry, where work is less divided, displays a relative harmony between worker
and employer. It is only in large‐scale industry that these relations are in a sickly state
 What makes these facts serious is that they have sometimes been considered a necessary
effect of the division of labor after it has passed beyond a certain stage of development. In
this case, it is said, the individual, hemmed in by his task, becomes isolated in a special
activity
 If, in certain cases, organic solidarity is not all it should be, it is certainly not because
mechanical solidarity has lost ground, but because all the conditions for the existence of
organic solidarity have not been realized.. We know, in effect, that, wherever organic
solidarity is found, we come upon an adequately developed regulation determining the
mutual relations of functions. For organic solidarity to exist, it is not enough that there be a
system of organs necessary to one another, which in a general way feel solidary, but it is also
necessary that the way in which they should com together, if not in every kind of meeting, at
least in circumstances which most frequently occur, be predetermined
 Because they misunderstood this aspect of the phenomena, certain moralists have claimed
that the division of labor does not produce true solidarity. They have seen in it only
particular exchanges, ephemeral combinations, without past or future, in which the
individual is thrown on his own resources. They have not perceived the slow work of
consolidation, the network of links which little by little have been woven and which makes
something permanent of organic solidarity
 But, in all the cases that we have described above, this regulation either does not exist, or is
not in accord with the degree of development of the division of labor
 What is certain is that this lack of regulation does not permit a regular harmony of functions
 If the division of labor does not produce solidarity in all these cases, it is because the
relations of the organs are not regulated, because they are in a state of anomy
 Since a body of rules is the definite form which spontaneously established relations between
social functions take in the course of time, we can say, a priori, that the state of anomy is
impossible wherever solidary organs are sufficiently in contact of sufficiently prolonged
 As the market extends, great industry appears. But it results in changing the relations of
employers and employees. These new conditions of industrial life naturally demand a new
organization, but as these changes have been accomplished with extreme rapidity, the
interests in conflict have not yet had the time to be equilibrated
 [Division of labor] has often been accused of degrading the individual by making him a
machine… What solves [this] contradiction is that, contrary to what has been said, the
division of labor does not produce these consequences because of a necessity of its own
nature, but only in exceptional and abnormal circumstances. The division of labor presumes
that the worker, far from being hemmed in by his task, does not lose sight of his
collaborators, that he acts upon them, and reacts to them. He is, then, not a machine who
repeats his movements without knowing their meaning, but he knows that they tend, in
some way, towards an end that he conceives more or less distinctly. He feels that he is
serving something. For that, he need not embrace vast portions of the social horizon; it is
sufficient that he perceive enough of it to understand that his actions have an aim beyond
themselves

Unjust Legal Regulation: forced division of labour and class wars
43

The Forced Division of Labor
 For the division of labor to produce solidarity, it is not sufficient, then, that each have his
task; it is still necessary that this task be fitting to him. Now, it is this condition which is not
realized in the case we are examining. In effect, if the institution of classes or castes
sometimes gives rise to anxiety and pain instead of producing solidarity, this is because the
distribution of social functions on which it rests does not respond, or rather no longer
responds, to the distribution of natural talents… Consequently, only an imperfect and
troubled solidarity is possible
 This result is not a necessary consequence of the division of labor. It comes about only under
particular circumstances, that is, when it is an effect of an external force. The case is quite
otherwise when it is established in virtue of purely internal spontaneity, without anything
coming to disturb the initiative of individuals. In this condition, harmony between individual
natures and social functions cannot fail to be realized, at least in the average case. For, if
nothing impedes or unduly favors those disputing over tasks, it is inevitable that only those
who are most apt at each kind of activity will indulge in it. The only cause determining the
manner in which work is divided, then, is the diversity of capacities. In the nature of things,
the apportioning is made through aptitudes, since there is no reason for doing otherwise.
Thus, in the organism, each organ demands only as much food as it requires
 The force division of labor is, then, the second abnormal type that we meet. Constraint is
not every kind of regulation, since, as we have just seen, the division of labor cannot do
without regulation… Constraint only begins when regulation, no longer corresponding to the
true nature of things, and, accordingly, no longer having any basis in customs, can only be
validated through force
 Inversely, we may say that the division of labor produces solidarity only if it is spontaneous
and in proportion as it is spontaneous. But by spontaneity we must understand not simply
the absence of all express violence, but also of everything that can even indirectly shackle
the free unfolding of the social force that each carries in himself. In short, labor is divided
spontaneously only if society is constituted in such a way that social inequalities exactly
express natural inequalities
 But as the progress of the division of labor implies, on the contrary, an ever growing
inequality, the equality which public conscience thus affirms can only be the one of which
we are speaking, that is, equality in the external conditions of conflict
 We have just seen that all external inequality compromises organic solidarity
 In organized societies, it is indispensable that the division of labor be more and more in
harmony with this ideal of spontaneity that we have just defined. If they bend all their
efforts and must so bend them, to doing away with external inequalities as far as possible,
that is not only because enterprise is good, but because their very existence is involved in
the problem. For they can maintain themselves only if all the parts of which they are formed
are solidary, and solidarity is possible only under this condition. Hence, it can be seen that
this work of justice will become ever more complete, as the organized type develops

Another Solution to the Problems of Anomie and the Forced Division of Labour

Emile Durkheim, “Preface to the Second Edition” of The Division of Labor in Society
 In vain one may claim to justify this absence of rules by asserting that it is conducive to the
individual exercising his liberty freely. Yet nothing is more false than the antimony that
people have too often wished to establish between the authority of rules and the freedom
of the individual. On the contrary, liberty (by which we mean a just liberty, one for which
44
society is duty bound to enforce respect) is itself the product of a set of rules. I can be free
only in so far as the other person is prevented from turning to his own benefit that
superiority, whether physical, economic or of any other kind, which he possess, in order to
fetter my liberty. We are now aware of how complex a set of rules is necessary in order to
ensure that economic independence for individuals without which their liberty is purely
nominal
 In the main body of this work we have been especially concerned to demonstrate that the
division of labour can bear no responsibility for this state of affairs, a charge that has
sometimes unjustly been leveled against it. Nor does that division necessarily produce
fragmentation and lack of coherence. Indeed, when its functions are sufficiently linked
together they tend of their own accord to achieve an equilibrium, becoming self‐regulatory.
Yet such an explanation is incomplete. Although it is true that social functions seek
spontaneously to adapt to one another, provided that they are in regular contact, on the
other hand this mode of adaptation only becomes a rule of behaviour if a group bestows its
authority upon it. Only a duly constituted society enjoys the moral and material supremacy
indispensable for prescribing what the law should be for individuals, for the only moral
entity which is above that of private individuals is the one constituted by the collectivity
 If anomie is an evil it is above all because society suffers through it, since it cannot exist
without cohesion and regulation. To be shot of anomie a group must thus exist or be formed
within which can be drawn up the system of rules that is now lacking
 Political society as a whole, or the state, clearly cannot discharge this function. Economic
life, because it is very special and is daily becoming increasingly specialized, lies outside their
authority and sphere of action. Activity within a profession can only b e effectively regulated
through a group close enough to that profession to be thoroughly cognizant of how it
functions, capable of perceiving all its needs and following every fluctuation in them. The
sole group that meets these conditions is that constituted by all those working in the same
industry, assembled together and organized in a single body. This is what is termed a
corporation, or professional group
 Not only are unions of employers and unions of employees distinct from each other, which is
both legitimate and necessary, but there are no regular contacts between them. They lack a
common organization to draw them together without causing them to lose their
individuality, one within which they might work out a common set of rules and which, fixing
their relationship to each other, would bear down with equal authority upon both.
Consequently it is always the law of the strongest that decides any disputes, and a state of
out and out warfare prevails
 For a professional morality and code of law to become established within the various
professions in the economy, instead of the corporation remaining a conglomerate body
lacking unity, it must become, or rather become once more, a well‐defined, organized group
– in short, a public institution
 Within a political society, as soon as a certain number of individuals find they hold in
common ideas, interests, sentiments and occupations which the rest of the population does
not share in, it is inevitable that, under the influence of these similarities, they should be
attracted to one another. They will seek one another out, enter into relationships and
associate together. Thus a restricted group is gradually formed within society as a whole,
with its own special features. Once such a group is formed a moral life evolves within it
which naturally bears the distinguishing mark of the special conditions in which it has
developed. And this attachment to something that transcends the individual, this
subordination of the particular to the general interest, is the very well‐spring of all moral
activity
45
 Since this common life is in certain respects independent of any territorial boundaries, a
suitable organism must be created to give expression to this life and to regulate its
functions. Because of the dimensions that it assumes, such an organism should necessarily
be closely in contact and directly linked with the central organism of the life of the
collectivity. Events important enough to affect a whole category of industrial enterprises
within a country necessarily have wide repercussions of which the state cannot fail to be
aware. This impels it to intervene. Thus for god reason the royal power tended instinctively
not to leave large‐scale industry outside its ambit as soon as it appeared. It could not fail to
take an interest in a form of activity which by its very nature is always liable to affect society
as a whole. Yet such regulatory action, although necessary, should not degenerate into utter
subordination, as happened in the seventeenth and eighteenth centuries. The two
organisms, although in contact with each other, should remain distinct and autonomous;
each has functions that it alone can perform. Thus economic activity could be regulated and
demarcated without losing any of its diversity
 A nation cannot be maintained unless, between the state and individuals, a whole range of
secondary groups are interposed. These must be close enough to the individual to attract
him strongly to their activities and, in so doing, to absorb him into the mainstream of social
life
 The absence of any corporative institution therefore creates, in the organization of a people
such as ours, a vacuum the significance of which it is difficult to overestimate. We therefore
lack a whole system of organs necessary to the normal functioning of social life

The Future of Law

 If repressive law loses ground, restitutive law, which originally did not exist at all, keeps
growing. If society no longer imposes upon everybody certain uniform practices, it take
greater care to define and regulate the special relations between different functions, and
this activity is not smaller because it is different
46

Max Weber: Law, Modernity and the Rationalism of the West

Introduction: The Uniqueness of Modern Western Rationalism

Max Weber, The Protestant Ethic and the Spirit of Capitalism
 In modern times the Occident has developed, in addition to this, a very different form of
capitalism which has appeared nowhere else: the rational capitalistic organization of
(formally) free labour
 Rational industrial organization, attuned to a regular market, and neither to political nor
irrationally speculative opportunities for profit, is not, however, the only peculiarity of
Western capitalism. The modern rational organization of the capitalistic enterprise would
not have been possible without two other important factors in its development: the
separation of business form the household, which completely dominates modern economic
life, and closely connected with it, rational book‐keeping
 However, all these peculiarities of Western capitalism have derived their significance in the
last analysis only form their association with the capitalistic organization of labour. For
without the rational capitalistic organization of labour, all this, so far as it was possible at all,
would have nothing like the same significance, above all for the social structure and all the
specific problems of the modern Occident connected with it. Exact calculation – the basis of
everything else – is only possible on a basis of free labour
 Although there have everywhere been civic market privileges, companies, guilds, and all
sorts of legal difference between town and country, the concept of the citizen has not
existed outside the Occident, and that of the bourgeoisie outside the modern Occident.
Similarly, the proletariat as a class could not exist, because there was no rational
organization of free labour under regular discipline
 The peculiar modern Western form of capitalism has been, at first sight, strongly influenced
by the development of technical possibilities. Its rationality is today essentially dependent
on the calculability of the most important technical factors
 Calculation, even with decimals, and algebra have been carried on in India, where the
decimal system was invented. But it was only made use of by developing capitalism in the
West, while in India it led to no modern arithmetic or book‐keeping. The technical utilization
of scientific knowledge, so important for the living conditions of the mass of people, was
certainly encouraged by economic considerations, which were extremely favourable to it in
the Occident
 Among those of undoubted importance are the rational structures of law and of
administration. For modern rational capitalism has need, not only of the technical means of
production, but of a calculable legal system and of administration in terms of formal rules

R Brubaker, The Limits of Rationality: An Essay on the Social and Moral Thought of Max Weber
The Specific and Peculiar Rationalism of Modern Western Civilization
 Basic to this perspective are two ideas: first, that modern Western civilization differs from all
others in its ‘specific and peculiar rationalism’; and second, that the central task of universal
history is to characterize and explain this unique rationalism
 The systematic ambiguity surrounding the notions of rationalism and rationalization makes it
necessary to specify ‘which spheres of social life are rationalized, and in what direction’.
Only in this way can the ‘special peculiarity’ of modern Western rationalism – and thus the
distinctiveness of the modern Western social order – be made clear
47
 The ‘reality in which we move’, for Weber as for Marx, is dominated by capitalism, ‘the most
fateful force in our modern life’. And the most salient characteristic of modern industrial
capitalism, according to Weber, sit is thoroughgoing rational calculability
 Common to the rationality of industrial capitalism formalistic law and bureaucratic
administration is its objectified, institutionalized, supra‐individual form: in each sphere,
rationality is embodied in the social structure and confronts individuals as something
external to them

Capitalism and Calculability
 The essence of modern capitalism, according to Weber, is its rationality. The market is the
paradigm of rationality in this double sense, for market exchange, more than any other type
of activity, is determined by the deliberate and calculating pursuit of self‐interest and is free
from the multifarious fetters of tradition and the capricious influence of feelings
 Market exchange, then, is rational to the extent that it involves the calculating, purely
instrumental orientation of economic action to opportunities for exchange and to these
alone. Just as important is the use of money accounting as a means of economic calculation
and decision‐making. While the social structure of market exchange elicits the subjective
disposition to act on the basis of impersonal calculations, money accounting provides an
objectified, supra‐individual technology for carrying out these calculations, for determining
unambiguously the ‘best’, meaning most profitable, opportunity for exchange
 The modern economy, then, is characterized by a double rationality: subjectively rational
(purely instrumental) market transactions are guided by objectively rational (purely
quantitative) calculations. Yet market exchange and monetary calculation alone do not
define modern capitalism. Modern industrial capitalism is based not simply on monetary
calculation but on a technically perfected form of capital accounting, not simply on market
exchange but on the continuous market struggle of profit‐making, bureaucratically
organized enterprises employing formally free labor. These specific characteristics of
modern capitalism converge on the idea of calculability
 Weber’s emphasis on calculability as the essential characteristic of modern capitalism
involves two distinct strands of analysis. First, the production process itself – the
performance of the human and non‐human means of production – is calculable. Secondly,
the legal and administrative environment is calculable: the actions of judges and
bureaucrats, in so far as they affect economic conduct, can be reliably predicted
 Exact calculability depends on this centralization of control: the entrepreneur can be sure of
the performance of factors of production only in so far as he controls them. Monopolization
of control by entrepreneurs presupposes the ‘expropriation of the individual worker from
ownership of the means of production’
 This fundamental fact of the ‘“separation” of the worker form the material means of
production, destruction, administration, academic research, and finance’ – conditioned
partly by the nature of modern technology, which is typically too large, expensive or
sophisticated to be controlled by the individual worker, and partly by the greater efficiency
of centrally organized activity – is the cornerstone of Weber’s theory of bureaucracy. Thus
the rationalization of economic activity, in so far as it depends on the centralization of
control over the material means of production, is part of a much broader process of
rationalization that Weber subsumes under the notion of bureaucratization
 Technical knowledge is the second factor on which the calculability of the production
process depends. Effective control over the means of production, as distinguished from the
mere power to dispose of them at will, itself depends on reliable technical knowledge
 Finally, the calculability of the production process depends on the uniquely Western system
of formally free labor and on the disciplined control of workers by entrepreneurs. Maximum
48
calculability, according to Weber, is achieved not with slave labor, but with labor that is
formally free yet economically compelled – under the ‘whip of hunger’ – to sell its services
on the market
 Industrial capitalism is characterized not only by the exact calculability of the production
process, but also by the calculability of the legal and administrative environment within
which economic action takes place. Modern capitalism, Weber argues, presupposes this
calculability
 Modern capitalist firms, run on the basis of an accounting technique requiring precise
calculation, are ‘much too vulnerable to irrationalities of law and administration’ to develop
or survive outside a predictable legal and administrative environment. Thus the
rationalization of law and administration, according to Weber, is a prerequisite for the
rationalization of economic life

Legal Formalism
 Modern law‐making, in the form of the deliberate enactment of legislation, is rational in a
double sense. Modern law‐finding, as distinguished from law‐making, involves the
application of general legal norms to the concrete facts of a particular case. In the ideally
rational case, legal decisions made in this manner can be reliably predicted by interested
parties
o Wherever such incalculable modes of law‐finding prevail, Weber argues, they will
impede economic rationalization. Rationalization in the legal sphere is thus bound
up with rationalization in the economic sphere
 The modern Western legal order is characterized not only by formal modes of establishing
legal norms and applying them in particular cases but also, to a greater extent than any
other legal order, by a body of abstract, general legal norms involving no reference to
substantive ends or values. These norms, in the ideally rational case, are systematically
related to one another, so as to constitute a ‘logically clear, internally consistent, and , at
least in theory, gapless system of rules under which… all conceivable fact situations must be
capable of being logically subsumed’
 ‘The increased importance of the private law contract’, Weber writes, ‘is thus the legal reflex
of the market orientation of our society’
 Legal formalism, like economic calculability, is rational only in a purely formal sense. To be
sure, formal justice guarantees the ‘maximum freedom for the interested parties to
represent their formal legal interests’

Bureaucratic Administration
 The indispensability of bureaucratic administration is grounded in its thoroughgoing
rationality. Once aspect of this rationality is its formalism. A second aspect of the rationality
of bureaucracy is its technical efficiency
 Bureaucratic administration is rational not only because of its impersonal formalism and its
machine‐like efficiency but also – and most fundamentally – because it is based on
knowledge. More precisely, it is based on specialized technical expertise, which becomes
increasingly indispensable to administration as the technical and economic base of modern
life becomes ever more complex
 Like industrial capitalism and formalistic law, bureaucratic administration is rational only in a
purely formal, non‐evaluative sense. And the greater its formal rationality, the more
vulnerable it becomes to criticism for its substantive irrationality. Thus what is ‘appraised as
its special virtue by capitalism’ – the spirit of formalistic impersonality – may be condemned
form another perspective as dehumanizing. Similarly, the more closely a bureaucratic
organization approximates a technically efficient machine, the greater the danger to
49
individual freedom and dignity: the individual official is reduced to a ‘small cog in a
ceaselessly moving mechanism which prescribes to him an essentially fixed route of mark’
 Finally, the more important the role played by technical expertise in the functioning of a
bureaucratic organization, the less responsive the organization will be to control of those
who lack such expertise: bureaucracy, in short, invites technocracy

Asceticism and the Ethic of Vocation
 Weber analyzes the modern social order not only form a static but also from a dynamic
perspective: he aims not only to delineate the ‘special peculiarity’ of contemporary Western
rationalism but also to elucidate its historical development
 The development of modern rational capitalism required a radical breakthrough in the
domain of attitudes and dispositions – a breakthrough that Weber attributes to the religious
ideas of the Reformation. The logical and psychological pressures generated by the ideas of
Luther and Calvin led to the development of what Weber calls ‘worldly asceticism’ – at once
a new ethical attitude and a new personality structure
 In The Protestant Ethic and the Spirit of Capitalism, Weber traces the development of
worldly asceticism to four elements of Reformation doctrine. First, Luther’s conception of
the calling granted full moral and religious dignity to ‘worldly’ activity – meaning activity in
ordinary social and economic settings, as opposed to activity carried out in special social
settings (such as monasteries) that are organized in explicit opposition to the ‘world’.
Secondly, the Calvinist conception of an absolutely transcendental deity made true mystical
union with God inconceivable: since the believer could not aspire to be the vessel of God, he
had to think of himself as an active ‘tool of divine will’, as an instrument serving to ‘increase
the glory of God’ through intense, single‐minded, rational worldly activity. Thirdly, the
Calvinist doctrine of the ‘corruption of everything pertaining to the flesh’ and Calvinism’s
general abhorrence of ‘all the sensuous and emotional elements in culture and in religion’
put a premium on strictly impersonal, radically individualistic, and thoroughly anti‐hedonistic
activity. The central Calvinist doctrine of predestination, finally, had decisive psychological
consequences. Salvation was regarded by Calvinism as an inexplicable gift of grace from an
inscrutable, absolutely transcendental God. In theory, the individual was powerless to affect
his salvation and equally powerless to know his predetermined fate
 Individuals had a religious interest ‘of absolutely dominant importance’ in ascertaining their
state of grace. Hence it was psychologically necessary that there be some means of
determining one’s eternal fate. In response to this overwhelming psychological pressure,
Puritan pastors came to recommend intense, methodically controlled activity in a worldly
calling as a means of ‘attaining certainty of one’s own election’, and they came to interpret
worldly economic success as a sign of God’s blessing thus relieving the intolerable
psychological uncertainty imposed by the doctrine of predestination. Worldly asceticism –
the disposition to work intensely and methodically in a worldly calling – is thus presented by
Weber as the practical‐psychological consequence of the theoretical doctrines of the
Reformation, and more particularly of Calvinism
 Weber stresses the hard, relentless rationality of worldly asceticism. In the first place, the
rigorous self‐control of the worldly ascetic is rational in the sense of anti‐emotional.
Moreover, methodical self‐control is rational because it is continuous and systematic rather
than occasional and haphazard. Finally, the regulation of conduct through conscious self‐
scrutiny is rational in that it requires a ‘life guided by constant though’, by ‘reflection and
knowledge of the self’
 Catholic monastic asceticism, for example, produced tremendous economic achievements,
but remained ‘world‐rejecting’ and as a result did not dramatically impinge on the economic
life of society at large. Puritan worldly asceticism, on the other hand, channeled
50
concentrated and disciplined energy into economic activity in the ‘world’ and as a result ‘did
its part [albeit unintentionally] in building the tremendous cosmos of the modern economic
order’. To begin with, the premium placed on continuous work in a calling and the
acceptance of the accumulation of wealth as a sign that one’s work had found ‘favor in the
sight of God’, together with the condemnation of the idle enjoyment of wealth, promoted
the ‘accumulation of capital through ascetic compulsion to save’. But the major significance
of Puritanism for economic development, according to Weber, lies less in its encouragement
of capital accumulation than in its more general contribution to the formation of a
‘specifically bourgeois economic ethic’ – to what Weber calls the ‘spirit of capitalism’ – and
thereby to the ‘ascetic rationalization of the whole of economic life’. Moreover, as its
primary concern with salvation ebbed, a secularized worldly asceticism became
indistinguishable from the spirit of capitalism. ‘The essential elements of… the spirit of
capitalism’, Weber writes, ‘are the same as… the content of the Puritan worldly asceticism,
only without the religious basis
 The development of modern industrial capitalism, according to Weber, presupposed on the
one hand an ‘external’ rationalization of the environment, through which technological,
legal and administrative factors affecting production and exchange became increasingly
calculable and thus predictable. A cluster of relatively independent historical processes –
including especially the development of modern science and the emergence of the modern
state with its formalistic legal system and bureaucratic administrative structure – comprised
this external rationalization. But in addition, the development of modern capitalism
presupposed an inner reorganization and rationalization of the personality
 In sum, rationalization in the spheres of science, technology, law and administration created
a calculable external environment, while an independent rationalization in the sphere of
religion and ethics created a disciplined, work‐centered inner orientation that turned out, by
a great irony of history, to be superbly ‘adapted to the peculiarities of capitalism’. Both
external and internal rationalizations were indispensable preconditions for the development
of modern industrial capitalism
 Only the impersonal ethic of vocation of worldly asceticism, Weber concludes, is an
‘adequate’ guide for action in a world in which economic and political relationships have
been so thoroughly depersonalized and objectified
 The worldly asceticism of the Puritans, then, contributed to the development of a distinctive
ethos, the various aspects of which Weber describes as the ‘spirit of capitalism’, the
‘bourgeois style of life’, and the attitude toward work. This ethos, in turn, promoted the
development of modern capitalism and bureaucracy. In this manner, the inner
rationalization of the personality effect by Protestant asceticism gave a decisive impetus to
the external rationalization of economic and political life and helped it develop into the self‐
sustaining process of rationalization that it is today

Unifying Themes: Knowledge, Impersonality, Control
 One such theme, is that the rationality of modern capitalism, law, bureaucracy and
vocational asceticism is purely formal, and that this very rationality may be judged highly
irrational from a substantive or evaluative point of view. This section briefly traces three
other thematic strands – those of knowledge, impersonality and control – that weave
together various aspects of Weber’s conception of the unique rationality of modern society
 Rational action in this sense is universal: all men in all societies and all epochs base their
conduct to some extent on knowledge – especially knowledge of means‐ends relations and
of the probable reactions of their physical and social environment to their actions
 Intellectualization fosters the belief that no ‘mysterious incalculable forces… come into play’,
and that one can therefore ‘master all things by calculation’. It is this belief that gives a
51
‘specifically rational flavor’ to the everyday experience of modern individuals, even those
with little or no scientific training. At the same time it induces the belief that the phenomena
of everyday life are calculable and therefore controllable, disenchantment erodes the belief
that the world has a discoverable meaning
 The increasing significance of knowledge in social life, in sum, is conceptualized by Weber on
four levels. He stresses (1) the growing importance of specialized knowledge – or the
certification that an individual possesses such knowledge – for the economy, the
government, the educational system and the system of stratification; (2) the progressive
displacement of the cultivated man by the specialized expert as an emblematic character
expressing the central values of our civilization; (3) the rational cast of everyday experience,
deriving from the disenchantment and intellectualization of the world; and (4) the growing
salience of individual action based on conscious reflection and calculation
 Market transactions are the ‘most impersonal’ of all relationships; and domination by
capital, based on the purely impersonal fact of a dominant market position, imposes on
propertyless workers a ‘masterless slavery’ in which the behavior of the powerful and
powerless alike is determined by purely objective, impersonal considerations
 The modern Western political order, apart from charismatic elements in the electoral
process, rests almost exclusively on impersonal foundations: on legal authority, on the
formal equality of all persons before the law, and on impersonal bureaucratic administration
 Impersonality, finally, is a characteristic of the specifically modern and Western vocational
ethos and of its source, Puritan worldly asceticism. This ethos bids man fulfill his worldly
tasks ‘sheerly in accordance with the impersonal duty imposed by his calling and not as a
result of any concrete personal relationship’
 The theme of control – over material objects, over other men, over oneself – pervades
Weber’s discussions of rationality. Above all, Weber is concerned with the extension of
technically rational control over men in capitalist firms and bureaucratic administrative
organizations. Such control, based on strict discipline, tends to reduce the individual to the
function he performs
 Effective control over men and nature rests on calculability – the nexus that links capitalism,
formalistic law, and bureaucratic administration. Modern industrial capitalism:
o Depends upon the possibility of correct calculations. This is true the more capital‐
intensive industrial capitalism is, and specially the more saturated it is with fixed
capital. Industrial capitalism must be able to count on the continuity,
trustworthiness and objectivity of the legal order, and on the rational, predictable
functioning of legal and administrative agencies
 Weber’s analysis of Western rationalism, like his social tough in general, does have a critical
edge. He demonstrates the extreme inhospitality of the modern formally rational social and
economic order to the values of equality, fraternity and caritas, and he shows how formal
rationality furthers the interests of economically privileged groups
52

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Law and Social Theory – 2007 Midsession Exam Notes

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