On Marxist Theories of Law, the State and their Relative Autonomy from the Capitalist Economy and Class Struggles
This part of the collection presents three essays first written over a period of eight years. All three deal with Marxist theories but their focus and approach differ in each case. They have been selected not only because they deal with different substantive aspects of the capitalist state and/or law but also because they reveal some key steps in the development of my own methodology and basic theoretical approach.
The first chapter was originally commissioned by the Cambridge Journal of Economics
and drew on seminar discussion with fellow members of the Essex University CSE state theory group.1
At that time we were mainly interested in reviewing the substantive differences among contending approaches to the state. This is reflected in the organization of the chapter: it moves from the work of Marx and Engels to consider alternative accounts of the state apparatus, its forms and functions. The only methodological remarks concern the general implications of Marxist theorizing for economic analysis. I did not deal with the different methods of theory construction employed in the various Marxist accounts nor did this question seem so important to me at that time. For this reason it still provides a useful survey of recent theories of the capitalist state (as I intended) without requiring the reader to grapple with extraneous methodological issues. But it also tends to treat them in terms of differences in coverage rather than differences in methodology. This latter interest has since become more important for me.
The second chapter is as much concerned with bourgeois law and juridico-political ideology as it is with the capitalist state. It was originally written for the International Journal of the Sociology of Law
and this explains its greater concern with law. In addition to this shift of focus, three new themes also emerge. First, whereas the first chapter presented Poulantzas in terms of the Miliband-Poulantzas debate and later located him within a loosely defined
neo-Gramscian tradition, this chapter marks my interest in his views on law and ideology and also provides an initial appreciation of work on the state as a social relation. Secondly, although this review is also organized in terms of substantive foci, the various theories are also analysed in terms of their methodology. This can be seen in the analysis of derivationist studies as well as my remarks on Hirst. But it is also reflected in the concluding remarks. These begin to develop the implications of the ‘method of articulation’ for theory construction, explanation and research. And, thirdly, equipped with 20/20 hindsight, we can discern some first signs of an autopoieticist view of law in the closing account of the legal system. In fact any such reading would be wrong because this approach was inspired more by Tuschling and Hirst than any familiarity with the autopoietic theories of Niklas Luhmann. But it was my interest in legal theory which later provided the bridge to an interest in autopoiesis.
The third chapter began life in the early 1980s as an attempt to set out possible positions on the relative autonomy of the state. Marxists have long been concerned with this issue but its meaning has never really been clear. For the state is sometimes seen as autonomous from the economy by virtue of its institutional separation and distinctive capacities; or else state managers are held to be autonomous from the capitalist class because of their distinctive values and interests. In some cases this state autonomy is only ‘relative’ because it is required by the capitalist economy (or capital in general) so that its real long-term interests can be secured and this functional need is itself sufficient to create and reproduce the appropriate form of autonomy. In other cases the emergence and/or maintenance of this autonomy is seen as problematic for capital, and its relative functionality or dysfunctionality is explained in terms of class struggle. And, in yet others, the institutional separation of the state and/or its managers is seen as positively dysfunctional.
In exploring these different positions I came to see the deeply unsatisfactory nature of the very concept of ‘relative autonomy’ and began to look for other ways of posing the problem. A first attempt was offered in the final chapter of The Capitalist State (1982) but my ideas really crystallized during my period as a Jean Monnet research fellow at the European University Institute in Florence during 1985–6. There it was that, in writing a Marxist critique of the theory of autopoiesis, I finally sketched out the arguments presented in chapter 3. If I seem to flirt with systems theoretical language in this chapter, it is because this was an important catalyst in developing the argument. But I am not a systems theorist. The chapter has been substantially revised for this book and can be read quite independently of the critique of autopoieticist theories which appears in chapter 10.
All three of these chapters are mainly concerned with Marxist analyses of the economy, state and law. They also take the form of critique of others’ views. But one can also discern the germs of my own strategic-relational approach. This will be presented more fully in subsequent parts of the book.
Other key participants in this group were Ted Benton, Ernesto Laclau, Mary MacIntosh, Maxine Molyneux, Harold Wolpe and Tony Woodiwiss.
RECENT THEORIES OF THE CAPITALIST STATE
Despite their very different assumptions and principles of explanation, monetarists, Keynesians and Marxist economists share a concern with the nature and impact of state intervention in capitalist economies.1
Yet, in contrast to the study of market forces, the state itself is strangely neglected as a field of analysis. This is as true of theories that presuppose an active role for the state as of those that entail a more limited role. Indeed, even though Marxists have long claimed special knowledge of the strategic significance of the state in class struggle, it is only in the past ten years (as of 1977) that they have rediscovered the state as a problem in political economy. The resulting discussion has ranged from the most abstract methodological issues to quite specific historical problems and has generated a variety of hypotheses and insights. It is unfortunately true that much of the Marxist debate is esoteric and often inaccessible and/or irrelevant to those working in other traditions. But, in the absence of any comparable reappraisal of the state, this debate merits wider consideration. Moreover, since Marxism has long been concerned with the state as well as with production and exchange, it is surely worth assessing to what extent an integrated approach can illuminate economic analysis. Such an enquiry is particularly germane in the current period of continuing world economic crisis and increasing state intervention to restructure the industrial and financial system.
It should be emphasized that the present survey is not concerned with Marxist economics as such. Instead it focuses on some recent Marxist theories of the capitalist state. Nor does it develop a new approach; it simply considers these theories in terms of certain given criteria. These comprise general criteria such as logical consistency and theoretical determinacy, as well as more specific criteria relevant to an evaluation of Marxist theories. The latter can be stated quite briefly as follows. A Marxist theory of the capitalist state will be
considered adequate to the extent that (a) it is founded on the specific qualities of capitalism as a mode of production, (b) it attributes a central role to class struggle in the process of capital accumulation, (c) it establishes the relations between the political and economic features of society without reducing one to the other or treating them as totally independent and autonomous, (d) it allows for historical and national differences in the forms and functions of the state in capitalist societies, and (e) it allows for the influence of non-capitalist classes and non-class forces in determining the nature of the state and the exercise of state power. To justify the choice of these particular criteria would sidetrack the discussion before it begins; it is hoped that their relevance and importance will emerge as we proceed.
The chapter starts with a short review of the approach of Marx and classic Marxist theorists to the capitalist state. Several different themes in their work are specified and their merits and demerits considered. This provides a framework within which to assess recent developments. Some variations on the themes of the classic texts are then examined and criticized for their failure to advance the Marxist theory of the state. This brings us to the central part of the paper, which deals with recent theories of the capitalist state, evaluated in the light of our criteria. The chapter concludes with some general remarks on Marxist analyses of state power in capitalist societies and their implications for other theoretical approaches.
The Classic Texts on the State
It is commonplace that Marx did not offer a theoretical analysis of the capitalist state to match the scope and rigour of Das Kapital. His work on the state comprises a fragmented and unsystematic series of philosophical reflections, contemporary history, journalism and incidental remarks. It is not surprising, therefore, that Marx rarely focuses directly on the complex relations among the state apparatus, state power, capital accumulation and its social preconditions. But it is less often remarked that the same is true of other classic Marxist theorists, such as Engels, Lenin, Trotsky and Gramsci. For, although they offer various acute observations on the state in general, specific historical cases and the nature of ideological domination, they do not confront the crucial question of the differential forms of the capitalist state and their adequacy to continued accumulation in different situations. Indeed, in so far as the classic texts do focus on this issue, they do so in inconsistent ways. There are at least six different approaches and, although they are often combined with varying degrees of consistency and mutual qualification, they involve different theoretical assumptions, principles of explanation and political implications. They must therefore be considered separately before one can draw any general conclusions about the classic approach as a whole.
1 Marx originally treated the modern state (at least that in nineteenth-century Prussia) as a parasitic institution that played no essential role in economic production or reproduction. In his view, democratic government would be characterized by a genuine unity of state and people, whereas the modern state was an expression of the irreconcilable conflicts rooted in the egoism of civil society. In this context, the state and its officials, far from representing the common interest, tend to exploit and oppress civil society on behalf of particular sectional groups. Indeed, Marx argues that, just as corporate organization enables the bourgeoisie and master craftsmen to defend their material interests, the state becomes the private property of officials in their struggle for self-advancement (Marx 1843: esp. 44–45; see also Hunt 1975: 124). This view was elaborated in his critique of Hegel’s political theories, when the young Marx was still committed to liberal radical political ideas. Nor had he then developed the conception of capitalism as a mode of production and so could not identify the specific characteristics of the capitalist state (Althusser 1969: 49–86; 1974: 151–61; Mandel 1971: 52–67 and passim). Thereafter, although he retained the basic ideas about the form of the modern representative state and its separation from civil society, Marx treated it as a necessary part of the system of class domination rather than as extraneous and parasitic. The latter view can still be found in his subsequent work on Oriental despotism, however, where Marx sometimes treats the Asiatic mode of production as communal in nature and the Asiatic state as a parasitic body standing above society (see particularly Marx 1858a). But, although the idea that the modern state is essentially parasitic is still held in anarchist circles, it was not long retained by Marx himself.
2 Marx also discusses the state and state power as epiphenomena
(i.e. simple surface reflections) of the system of property relations and the resulting economic class struggles. This view is again largely confined to the earlier writings, but it emerges occasionally in his later work and occurs frequently in more recent Marxist analyses. It is particularly clear in Marx’s early comments on law (in which legal relations are treated as mere expressions of the social relations of production), but is also apparent in more general analyses of political institutions. The most frequently cited illustration of this approach is the 1859 Preface
to his Contribution to the Critique of Political Economy.
This appears to treat law and politics as a superstructure based on the economic infrastructure, to view property relations as the legal expression of relations of production and to ground revolution on the growing contradiction between forces and relations of production. In general, this approach considers the structure of the state as a surface reflection of a self-sufficient and self-developing economic base. And, since classes are defined in purely economic terms, the exercise of state power is seen as a surface reflection of economic struggle. It also implies that there is a perfect, one-to-one correspondence between juridico-political relations and economic relations or, at best, some
sort of ‘lead’ or ‘lag’ between them. It thus reduces the impact of the state to a simple temporal deformation of economic development (typically viewed in terms of the growth of the forces of production) and of economic class struggle (typically viewed in terms of a struggle over the distribution of the product). Thus, although state intervention can accelerate or hinder economic development, the latter is always determinant in the last instance (see particularly, Engels 1878: 253–4; Marx and Engels 1975: 392–4).
3 Another common approach treats the state as the factor of cohesion in a given society. This perspective is closely identified nowadays with Poulantzas, but is also evident in the classic texts. Thus Engels views the state as an institution that emerges pari passu with economic exploitation. He argues that its function is to regulate the struggle between antagonistic classes through repression and concession, and thus to moderate class conflict without undermining the continued domination of the ruling class and reproduction of the dominant mode of production (Engels 1884: 154–63 and passim). Lenin adopts the same view in several places (see especially Lenin 1917). Bukharin also treats society as a system of unstable equilibrium inside which the state acts as a ‘regulator’ and Gramsci, albeit from a far less mechanistic position, adopts more or less the same argument on several occasions (Bukharin 1926: 150–4 and passim; Gramsci 1971: 206–76).
There are two main difficulties with this approach. First, it fails to specify the nature of the state as a factor of cohesion and/or to identify the means through which the state realizes this function. Hence the state is defined in functional terms and comes to include every institution which contributes to cohesion (see especially Poulantzas 1968: 44–50). It is impossible to elucidate the class nature of the state in this way. Indeed, far from leading to revolutionary conclusions, it is this view that is most often associated with the idea that the state can ‘reconcile’ class conflict by acting as a neutral mediator. Secondly, unless one can specify the mechanism of cohesion and its limitations, it becomes difficult to explain the emergence of revolutionary crises and the transition from one epoch to another. In this respect, this sort of approach is so obviously inadequate that it must be complemented and supported with reference to other perspectives.
4 The state is also seen as an instrument
of class rule. This is the most common approach and is particularly evident in exegeses of Marxism-Leninism. A fundamental problem is the tendency to assume that the state as an instrument is neutral and can be used with equal facility and equal effectiveness by any class or social force. This approach also encounters difficulties in situations where the economically dominant class does not actually fill the key positions in the state apparatus (as cited by Marx himself in the case of the landed aristocracy ruling on behalf of capital in nineteenth-century Britain). The same problem occurs where the state acquires a considerable measure of independence from the dominant class owing to a more or less temporary
equilibrium in the class struggle. This situation is alleged to have occurred in the absolutist state, the Second French Empire under Louis Bonaparte and the German Reich under Bismarck. In neither case can one explain how the state remains an instrument of class rule even though the dominant class has no immediate control over it. Similar problems occur in the study of ‘dual power’ in revolutionary situations and in the analysis of transitions between different modes of production.
5 A further approach in the classic Marxist texts is similar to that of orthodox institutional studies in sociology, anthropology and political science. The state is treated as a set of institutions and no general assumptions are made about its class character. The state is seen as a ‘public power’ that develops at a certain stage in the division of labour (usually identified with the emergence of a mode of production based on the exploitation of one class by another) and that involves the emergence of a distinct system of government which is monopolized by officials who specialize in administration and/or repression. This theme is evident in Engels (1984) and Lenin (1917). It can accommodate the objections to the approaches reviewed above and yet leaves open the question of their adequacy in specific situations. It implies that the functions, effects and class nature of the state cannot be determined a priori, but depend on the relations between its institutional structure and the class struggle in various circumstances. In the absence of such conjunctural analyses, however, the institutional approach can establish the nature of the state only through a return to more primitive formulations. Thus it tends to be associated with epiphenomenalism (the institutions mirror the economic base) and/or instrumentalism (the institutions are controlled by capital). Moreover, even when it is associated with concrete analyses, the institutional approach may simply lead to descriptive accounts without any attempt to explain what occurs.
6 It is in this context that the sixth approach is especially relevant. It examines the state as a system of political domination with specific effects on the class struggle.
Thus, whereas the instrumentalist approach focuses on the question of ‘who rules’, this approach shifts attention to the forms of political representation and state intervention. It examines them as more or less adequate to securing a balance of class forces that is favourable to the long-term interests of a given class or class fraction. It is illustrated in Lenin’s remark that a democratic republic is the best possible political shell for capitalism and that, once this form of state is established, no change of persons, institutions or parties can shake the political rule of capital (Lenin 1917: 296; see also Marx and Engels 1975: 350). And it is central to the discussions of the Paris Commune as the model for working-class political domination (see particularly Marx 1974; Lenin 1917). This approach is most fruitful when used in conjunction with an institutional definition of the state. For, although it avoids the difficulties associated with the other approaches reviewed above, it still needs to be developed and supported by a concrete analysis of institutions.
Otherwise it tends to become a sophisticated attempt to establish theoretical guarantees that the state in a capitalist society necessarily functions on behalf of capital. Thus, in opposition to those who argue that the internal organization of the state can ensure that it functions to reproduce capital (e.g. Offe 1974), it is vital to insist that state power can be more or less capitalist depending on the situation.
So nowhere in the Marxist classics do we find a well-formulated, coherent and sustained theoretical analysis of the state. This is not to deny that they offer a series of acute historical generalizations and political insights, nor, indeed, that they lay the foundations for a more rigorous analysis. In particular, the perspective of political domination (the sixth approach) provides an adequate starting point for studying the state and state power. But much of the renewed discussion still reflects the limitations of the other approaches and fails to develop this insight into the nature of...