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Source: PRAXISInternational(PRAXISInternational),issue:4/1981,pages:422429,


Ljubomir Tadi Right (as well as Ethics) does not seem to have any ground in Marxism and Marxist conceived socialism; Right and the (socialist) revolution seem to exclude rather than tolerate each other. Our ground, declared Marx in his essay Bourgeoisie and Counter-revolution, is not the ground of Right but the revolutionary ground. His best friend and collaborator Friedrich Engels contended in his essay Legalistic Socialism that the legalistic world outlook was a classical world outlook of the bourgeoisie, a secularization of the theological. While in the Middle Ages the disintegrated feudal values were in some ways united by the Church and divine right, in the age of the bourgeoisie this was accomplished by the State and human rights. Just as the bourgeoisie engaged in its class struggle against the aristocracy under a theological disguise, the proletariat engages in its own class struggle against the bourgeoisie, at least in the beginning, under a legalistic disguise. At the same time it tries to supplement bourgeois legal equality with social equality, insofar as it attacks the unjust distribution of social products. Yet, according to Engels, the workers have instinctively felt that they should not seek the solution of their problems on legal grounds because their misery cannot be superseded on that basis. In order to grow and mature, the proletariat had to get rid of its legalistic illusions, and of its illusory sense of justice and humanness, and to seek the solution to its problems on the basis of an open class struggle. To the lack of property ownership of the workers, Engels concludes his polemical remarks, could correspond only the lack of illusions in their heads.1 This mature proletarian class consciousness is expressed, in Engels opinion, by Marxs materialist conception of history. The class struggle of the proletariat for a new society is not based on law because law is bourgeois ideology, whereas the ultimate goal of socialism is the building not of a just but of a classless society. The polemical texts written by Engels against legalistic socialism in 1887 offer a theoretical summary of the views expounded by him and Marx from their early writings to Capital. More or less well-known passages from The Holy Family, On the Jewish Question, The German Ideology and Critique of the Gotha Program need not be mentioned here. However, one should be briefly reminded that the sphere of commodity exchange, in which buying and selling of the labor force takes place, was characterized by Marx in Capital as the true paradise of human natural rights, a sphere in which only Freedom, Equality, Property and Bentham rule. In another passage in Capital, Marx established that a presupposition of the emergence of capital is the existence of the free worker who is free in a double sense: since he, as a free person, disposes of his labor force as his own commodity, and also since he is free of the possession of other commodities. Then in Grundrisse (The Outline of a Critique of Political Economy), 422

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Marx emphasized that while the economic form, the exchange of commodities, presupposes the equality of subjects, freedom constitutes its content, its individual and material substance that moves the exchange.2 Marx continues: Equality and freedom are not only respected in exchange, which rests on exchange values, moreover, the exchange of exchange values is the real productive basis of all equality and freedom.3 As pure ideas these were idealized expressions of this basis; as developed in legal, political and social relations equality and freedom are just this basis in another capacity. They presuppose the relations, of production which were not realized either in the ancient world or in the Middle Ages.4 Capitalism is essentially not possible without the abolition of slavery, serfdom, and compulsory labor. This abolition already presupposes the existence of a general political freedom and legal equality. However, it was necessary to achieve such an important change in the relations of production, i.e., in the property relations, which would bring about an absolute separation of property from the living working capacity ...5 In other words, objective relations of work must become so indifferent and alien to the living working capacity that they impose objectified, dead labor on to living labor as a dominating power. In the capitalist mode of production, labor turns from an imminent capacity into an object, into a relationship in which things rule over human beings and the product over the producers. In this way the politically free and legally equal producer brings about his own serfdom, alien power, and domination. Marx indicates in his further analysis that during the process of exchange both the capitalist and the worker appear in the market as free persons and trade their commodities according to the principles of a free exchange of equivalents. And yet a value is being created during the process of work which cannot be paid for with mere wages. The labor contract, and therefore the law, conceals the real relation of exploitation and of the oppression of the worker. Thus the relation of exchange of equivalents becomes a pure fiction of equality. The consequence of the bourgeois right of private property is a sharp separation of right and duty, based on the class relations. On the one hand, there is the right of the capitalist to appropriate the work of others in the form of surplus value, without really paying the equivalent; on the other hand, there is the duty of the worker to behave toward his own labor and the product of labor as toward an alien property. However, from the standpoint of civil law everything is in the best order: To call for more equitable and more just compensation on the basis of the wage system is the same as to call for freedom on the basis of the system of slavery.6 Precisely because of the ambiguity in the bourgeois concepts of freedom and equality, Marx characterized bourgeois society with the paradoxical expression emancipated slavery.7 Appeals to law and justice cannot, according to Marx, solve the problems which are generated by the antagonistic nature of bourgeois class society. Where things cannot be decided by justice, they have to be decided by the class struggle and power: bourgeois society can be abolished only by despotic inroads into property relations, by expropriation of expropriators. However, Marx does not see the liberation of the proletariat from the relations of capitalist exploitation as a mere class emancipation but in the perspective of human liberation from all relations and forms of serfdom. Precisely for that reason the working class does


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not claim in its struggle a particular right, because the wrong which is done to it is not a particular wrong but wrong in general, which does not have a specific historical character but human character.8 Thus the standpoint of Marxs critique of capitalist exploitation and of bourgeois law is not an ideal of the natural right of the proletariat but of the liberation of human beings from all forms of serfdom. This universal demand for emancipation is justified by the universality of the suffering of the working class which cannot be superseded either by an appeal to particular historical rights, or by an appeal to morality. In a class society injustice is there in its very foundation. Marx attributed to the revolutionary working class the role of the executor of the sentence of the court of history for all injustices of that society. Speaking at a celebration of an anniversary of the newspaper Peoples Paper in 1856, Marx compared this court with the secret court in medieval Germany which passed sentences for wrong-doings of the ruling classes.9 The socialist revolution lays down for itself objectives which were expressed by Marx in the form of a categorical imperative to overthrow all those conditions in which man is an enslaved, abandoned, contemptible being . . . . 10 In a world of total injustice, such far-reaching goals cannot be realised by means of philanthropic measures, or, in Marxs words, owing to weaknesses of the strong ones; they must and will be brought to life by the strength of the weak ones.11 Consequently, the revolutionary class must generate power and use violence in order to achieve those goals. Furthermore, the revolutionary class will, when and insofar as it wins, use violence for a certain period of time in order to complete the process of transformation of the capitalist society. Following the paradigm of preceding and existing revolutionary attempts, Marx called this power of the revolutionary class dictatorship of the proletariat. At this point possibilities are opened for various kinds of interpretations. Two of these which seem to be the most important will be briefly discussed. These are the Soviet jurists of the first post-revolutionary period (Reissner, Stutschka, and Paschukanis), and the interpretation of Ernst Bloch contained in his work Naturrecht und menschliche Wrde (Natural Right and Human Dignity). Both the Soviet jurists and Bloch have correctly understood that a theory of right for Marx (Engels) is possible only as a critique of right and of the ideology of right. And yet these two interpretations differ essentially in the way in which they conceive and understand the nature of this critique. Different concepts of exploitation are discernible in the background of those differences. Soviet jurists yielded to the authority of Lenins interpretation of the concept of the dictatorship of the proletariat. This is, according to Lenin, on the one hand, a domination that is not supported by any laws; on the other hand, this is a domination that abolishes private property and private right and replaces them with state property and the states right. The new forms of property and rights have been called socialist. This conception was, then, labelled a revolution of right. The Soviet theory of law of the post-revolutionary period concentrated on the sharpest critique of the bourgeois ideology of law. For example, Reissner characterized law as the opium of people. A full subordination of law to politics during the transition period led to a justification of Soviet legal theory in terms of revolutionary purposefulness. Soviet jurists used all their energy in

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order to prove the conservative function of the ideology of law. In contrast to it, political flexibility should have, in the opinion of those jurists, secured the purposeful, progressive development of Soviet society. This absolutely uncritical confidence in politics (even of a revolutionary politics) led Soviet jurists to the conclusion that revolutionary law was, as Paschukanis asserted, ninety-nine percent a political task.12 After the critical year of 1921, the dominant point of view in the Bolshevik Party leadership theoretically advocated by Bukharin was that the Party mechanism in the system of the dictatorship of the proletariat can secure its leading position only under the condition of a monolithic unity. According to Bukharin, that meant in practical terms, first, a prohibition of the legal existence of other (even of socialist) parties; second, the expulsion of groups, factions, and organized currents from the inner structure of the Bolshevik Party itself.13 This point of view led to the conclusion that the dictatorship of the proletariat was incompatible with political democracy. Such a dogmatic, undialectical critique of the bourgeois ideology of law and of political democracy brought Soviet political and legal theory to a destructive result. The fetishism of law was separated from the fetishism of politics, and the mystifying notion of revolutionary purposefulness soon turned into an arbitrary, despotic practice of state reason. This happened once violence and lawlessness prevailed over freedom. Where legislation and law serve only the purposes of order and organization, we no longer deal with laws that belong to the sphere of right but, as Ernst Bloch noted, only with mathematical-physical laws.14 Thus, Soviet theory conceived exploitation as an exclusively capitalist phenomenon and used all its energy to challenge bourgeois civil right ideology. At the same time, it tried to justify all those forms of exploitation which still existed in socialism (where socialism was exclusively conceived in the Bolsheviks sense). Ernst Bloch recognized the truth of the Marxist analysis of bourgeois private property and of all those forms of law, and ideology of law, which emerged on its ground. He also distinguished between the justice from above of the dominating class and the justice from below of exploited classes. Without the latter no human rights can be established.15 However, Bloch well knew that not everything was socialism that was anti-personalist, anti-liberal.16 It is not always the case that behind freedom Bentham is hidden, i.e., egoistic private interests, nor is freedom exhausted in so-called free competition. For Bloch, private property is a bourgeois limit of human rights. In the ideology of civil law, arbitrariness was confused with freedom. Freedom of private property cannot be conceived of as human freedom. Thus it was possible to formulate a Marxist critique of private property from the point of view of freedom, since the bourgeois accidental individual could not be accepted as a personal individual. Freedom as potestas in se ipsum has to be sharply separated from the bourgeois conception of freedom as potestas in re. The key question, which precedes Blochs analysis of the notion of justice, consists in the following: Is it possible to reduce without any residue human rights listed in the great declarations to bourgeois economy and bourgeois civil law? In other words: Do these declarations involve any elements of the


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revolutionary heritage to which socialism could legitimately appeal? Blochs reply is: In each revolution, resistance and uprising involve a conscious or unconscious natural right. Classless society is the fundamental basis of radical natural law, and the ultimate classless substance of this law is the postulate of human dignity. The common thought in radical natural right and in revolutionary Marxism is the following one: The factual givenness of a legal relation cannot in itself be any ground for its validity. This basic insight leads the exploited individual to direct his energy against all exploiting powers of the past and of the present. There is the root and the source of his daring will, of his historical revolt against fate. The abolition of the domination of fate in history, or in the words of Bloch, the strength to turn against fate, is inconceivable without the right to resistance against any exploitation and tyranny. In order to liberate himself from blind fate, man had to oppose a masochistic conception of virtue as the bravery of patient endurance, obedience, and resignation to the existing state of affairs. In ones aspiration to happiness and freedom, one had to decide to be bold. Marx wrote, There should be no God beside human self-consciousness.18 Bloch also follows this path when he insists that in ancient tragedies man was better than the gods themselves. Thus, the ancient hero represents the first form in which the historical confidence of an individual against destiny comes to expression. The prototype of this confidence can be found in Prometheus Bound by Aeschylus, when Prometheus addresses himself to Hermes, the servant of gods:
Be sure of this: when I set my misfortune against your slavery, I would not change. It is better, I suppose, to be a slave to this rock, than Zeuss trusted messenger.

Marx quotes these words at the end of the preface of his dissertation and concludes from them Prometheus is the most outstanding saint and martyr in the philosophical calendar.19 In the darkness of Stalinist tyranny, Ernst Bloch has kindled the light of the libertarian tradition of Marxism and has shown that the abolition of exploitation of humans by other humans is not possible without abolition of oppression of humans by other humans, because human happiness can not be achieved in a society where one can walk unpunished over human dignity. When socialism involves only a militant identification with those who are abused and overburdened, but not with those who are debased and offended, then it is still far from its true goal. The program of a socialist society and of its living praxis must project and realize an abolition of not only the tyranny of the factory but also of the factory of tyranny.20 Thus Bloch conceived of exploitation not only as a product of capitalism and as a form of an old and new domination but as human degradation. He has warned against a naive optimistic belief according to which it would be possible to abolish capitalist exploitation without turning people into free human beings. Therefore, as long as the possibility of domination still exists, as long as there is still the phantom of the state, and as long as people can still be kept in silence, one must preserve a concern for the right to stay upright, a concern that derives from natural law. Otherwise, a revolution remains a storm that keeps all

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as it was before. In a conversation with Fritz Willmar, Bloch has rightly pointed out that the category of dictatorship was not sufficiently analyzed21 in Marxs theory, and consequently opened the possibility of the practical abuse of the concept of dictatorship of the proletariat. Bloch shared the view of Rosa Luxemburg when he summarized his theory of law in the following way: There is no democracy without socialism, and no socialism without democracy. The fact is that had Marxism allowed for a possibility of socialism without democracy, Marx would never have written his well known texts about censorship and freedom of the press, nor would Engels ever have expressed his indignation concerning the attempts to stifle freedom of criticism in the socialist press of that time. A great merit of Bloch, in my opinion, is that at a time of profound crisis he emphasized the necessity of restoring the continuity of the revolutionary tradition which was interrupted by the reaction of the French and Soviet Thermidors. The goals of this Thermidorian reaction were expressed by legal positivism, both in its skepticism and in its hatred for rational construction of natural law. Already in his Spirit of Utopia (Geist der Utopie) in 1918, Bloch stated his basic anti-positivistic orientation in the following words: That which is cannot be true.22 For him thought always was and always must be engaged. To think philosophically about rights means, for Bloch, to be on a search for truth, freedom, and meaning. For him Freedom is the basis of truth. To declare that human problems were meaningless, pseudo-scientific, and ideological, means to rely only on what is provable, knowable, theoretical. Philosophical antihumanism, the justification of positivism, is the common trait of many contemporary philosophical scholars. In spite of all modifications, there were in the past, and there are in the present, two conceptions of philosophical wisdom, or two styles of doing philosophy, which express the basic orientation of a philosopher: obedient silence and staying upright. A compulsory silence is not meant here. Under such conditions the refusal of a philosopher to speak could be more eloquent than any speaking. What is meant here is silence as the standpoint of wisdom, as conviction, and as the voluntary withdrawal of philosophy from the whirlpool of life. Hyppolite Taine has formulated the norm of such an attitude, at the time of the rule of Napoleon III, with the words: Taisons-nous, obeissons, vivons dans la science! (Let us keep silent, obey and live in science!) Many contemporary philosophers, both in the bourgeois and in the so-called socialist countries, have been following Taines norm of conduct. There is hardly anything more surprising than the humble submissiveness of many philosophers (and of intellectuals in general) in so-called socialist countries toward ruling oligarchies and bureaucracies. They allow themselves to be trained in strict discipline as if discipline were the highest virtue of the working class which must be loyally upheld by philosophers and intellectuals. The idea of Marx that the very basis of philosophical research is a bold spirit has lost any validity precisely in the countries where Marxism was proclaimed an official ideology. To turn Marxism into an official ideology, or into an ideology in general, means nothing more than laying a curse on the human spirit in the illusion that the world can be changed by appropriating a humble philosophy of silence. This


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kind of philosophy was rejected by Marx in his dissertation. It can be preached only by those whose nature is fearfully buttoned up, uneasy in its own skin, ready to humiliate itself, to sing lullabies to ones own private innocence. Plutarch was such a philosopher in the ancient world. On the other hand, a prototype of a bold, free spirit was Lucretius, who in De Rerum Natura wrote the following lines: When human life, all too conspicuous, Lay fouly grovelling on earth, weighed down By grim Religion looming from the skies, Horribly threatening mortal men, a man, A Greek, first raised his mortal eyes Bravely against this menace. No Report Of gods, no lightning-flash, no thunder-peal Made this man cower, but drove him all the more With passionate manliness of mind and will To be the first to spring the tight-barred gates Of Natures hold asunder. Among Marxist philosophers of our time, Ernst Bloch was the first who raised again the flag of the right to uprightness after it was dropped under the pressure of Stalinist tyranny. To this Lucretius in Marxism belongs the outstanding merit of understanding and showing that a humane society could never be built without respect for human dignity, and that human happiness can flourish only in the bristling air of freedom and of morning freshness. Only in such a climate can deities, both celestial and earthly ones, not breathe and not, as fate, rule over people.
NOTES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 MEW 21, p. 494. Grundrisse der Kritik der politischen konomie (Berlin, 1953), p. 156. Ibid. Ibid. Ibid. Karl Marx, Friedrich Engels, Studienausgabe II, ed. Iring Fetscher, (Frankfurt, 1966), p. 195. MEW 2, p. 129. MEW 1, p. 390. MEW 12, p. 4. MEW 1, p. 385. MEW 4, p. 298. E. P. Paschukanis, Polozenie na teoreticeskom pravovom fronte, Sovetskoe gossurdarstovo i revoljucija prava, 11/12, 1930, str. 49. A. I. Rykov i N. I. Bukharin, Partija i oppozicionni j blok, izd. vtoroe (Moskva/Leningrad, 1926), str. 76-80. Naturrecht und menschliche Wrde (Frankfurt, 1961), p. 242. Ibid., p. 231. Ibid., p. 214. Ibid., p. 212.

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18 MEW, Ergnzungsband, erster Teil, p. 262. 19 Ibid,, p. 263. 20 Ibid., p. 257. 21 ber Ernst Bloch, Edition Suhrkamp (Frankfurt, 1968), p. 88. 22 Geist der Utopie.