History of European Ideas 35 (2009) 465–474

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History of European Ideas

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Ontology and law in the early Poulantzas

James Martin *
Department of Politics, Goldsmiths, University of London, New Cross, London SE14 6NW, UK

A R T I C L E I N F O A B S T R A C T

Available online 26 May 2009 This article reviews the little examined early work of the Greek Marxist and state theorist,
Nicos Poulantzas (1936–1979). In his first book, Nature du choses et droit of 1965, the young
Keywords: scholar developed a sociology of law culled from the insights of philosophical ontology.
Poulantzas The article sets out the central claims of that book and reflects on its place in Poulantzas’s
Existentialism intellectual development. Drawing on Heidegger, Sartre and Marx, Poulantzas proposed a
Law species of Natural Law theory that unified ‘facts’ and ‘values’ by grounding legal concepts
Ontology in a theory of social praxis centred on material labour. Legal categories were thus
Structuralism
irreducible to ahistorical essences but were, rather, expressions of mankind’s struggle to
State
realize its intrinsic freedom. As we shall see, although flawed and in key respects radically
at odds with his later anti-humanism, Poulantzas’s legal ontology nevertheless anticipated
his mature theory of the state by setting out a philosophical sociology of the political order
rooted in an anti-essentialist mode of inquiry.
ß 2009 Elsevier Ltd. All rights reserved.

Introduction

In the 1970s Nicos Poulantzas gained renown for his distinctive theory of the capitalist state. Conceived as the ‘material
condensation’ of class struggles, the state, he argued, functioned to stabilize capitalist society by momentarily unifying its
constituent forces in the form of a hegemonic ‘power bloc’.1 Poulantzas resisted the tendency both in Marxism and
elsewhere to treat the state either as a kind of subject with a singular rationality, reducible to the interests and values of its
occupants, or as a mere object over which control was sought. Neither wholly independent of social forces nor simply their
instrument, in Poulantzas’s mature theory the state exhibited a peculiar ‘ontological status’, claims one commentator.2 As a
‘social relation’, the capitalist state possessed a fictional unity that was materialized institutionally as a consequence of
ongoing class struggles and practices.3
The theoretical framework through which this theory was developed was Louis Althusser’s structuralist variant of
Marxism. Although Poulantzas soon struggled to free himself of Althusser’s influence, it is with structuralist Marxism that his
work is most commonly associated.4 But the association also fails to note that prior to coming under Althusser’s spell, as a
doctoral student at the University of Paris, Poulantzas had previously adopted an existentialist-Marxist approach quite at

* Tel.: +44 20 7919 7754; fax: +44 20 7919 7743.

E-mail address: j.martin@gold.ac.uk.
1
See N. Poulantzas, State, Power, Socialism (London, 1978).
2
See P. Bratsis ‘Nicos Poulantzas and the Ontological Status of the State in Marxist Theory’, The Journal of the Hellenic Diaspora 25 (1999), 155–76.
3
A comprehensive assessment of Poulantzas’s approach to the state can be found in various works by Bob Jessop. See especially Nicos Poulantzas: Marxist
Theory and Political Strategy (Basingstoke, 1985) and ‘The Strategic Selectivity of the State: Reflections on a Theme of Poulantzas’, The Journal of the Hellenic
Diaspora 25 (1999), 41–78. For a general sketch of his intellectual career, see the ‘Introduction’ to The Poulantzas Reader: Marxism, Law, and the State, ed. J.
Martin (London and New York, 2008), 1–24.
4
However, Jessop traces closely the various stages of Poulantzas’s intellectual development and underlines, in particular, his desire to move beyond the
limitations of Althusserian structuralism. See Jessop, Nicos Poulantzas.

0191-6599/$ – see front matter ß 2009 Elsevier Ltd. All rights reserved.
doi:10.1016/j.histeuroideas.2009.04.003
466 J. Martin / History of European Ideas 35 (2009) 465–474

odds with the ‘anti-humanist’ bent of structuralism. In that early orientation, which he had evidently abandoned by the late
1960s, the ontological dimension of public principles and concepts was given central place. Here, too, Poulantzas was intent
on avoiding the reduction of institutions to essentialist categories. However, his early work was preoccupied not with the
state but with ‘legal ontology’ and it drew upon the then dominant philosophical current in France: Sartrean existentialism.
Indeed, Poulantzas’s first published articles were either in academic journals of legal philosophy or Sartre’s own review, Les
Temps Modernes; his first book was not the avowedly structuralist Pouvoir politique et classes sociales of 19685 but his doctoral
dissertation, Nature du choses et droit published in 1965.6
In this article I undertake a close examination of the argument in Nature du choses, a book that has received almost no
scholarly attention and which, like much of his early work, was largely dismissed by Poulantzas as having no bearing on
his later concerns. I begin by looking at the debates into which Poulantzas intervened and then go on to examine the
thesis of Nature du choses in detail, ending by noting the ‘epistemological break’ he later made with the basic precepts of
this study. While his immediate preoccupations altered radically, nevertheless, I argue, Poulantzas’s early work on
ontology and law serves as a marker of both the differences and continuities demonstrated by his later engagement with
structuralism.

Philosophy and law

Having graduated in law from the University of Athens in 1957, and after an aborted sojourn in Munich and Heidelberg,
the 24-year-old Poulantzas moved to France in 1960 to take up postgraduate studies at the University of Paris.7 His interests
in philosophy and law mirrored two, key preoccupations in western Europe at the time. First, the post-war reconstruction of
the state, specifically the status of law in integrating social orders which had been disrupted by the war and which were then
refashioning their sovereign law-making capacities in a new environment of interstate cooperation.8 Second, the intellectual
dominance of Phenomenology, particularly in France where since the 1930s Positivism had been supplanted by a fascination
with what Descombes refers to as the ‘three H’s’: Hegel, Husserl and Heidegger.9
In France, Alexandre Kojève’s highly influential reading of Hegel’s Phenomenology of Spirit – an account of the dialectical
progression of consciousness in its journey through irrationality towards wisdom – fed a growing appetite in the wake of
war-time horrors for a ‘concrete’ philosophy that looked beyond classical materialist and idealist outlooks and
emphasised action, ‘praxis’ rather than speculation, and the struggle of consciousness with reality – conceived in terms of
‘negativity’ – to impose itself on a world resistant to a fully coherent meaning.10 The rather bleak image of humanity
struggling, but never wholly succeeding, to shake off its contradictions and attain fullness of being had removed from
Hegel’s dialectical logic the affirmative stamp of Reason in favour of what Descombes calls a ‘morality of realism’.11
Phenomenology’s focus on the constitution of the world by consciousness came to resonate powerfully, particularly in the
work of Sartre and Merleau-Ponty, with a popular desire to adjust to the new and uncertain post-war environment.12 In his
initial university studies, the early Poulantzas (who attended Merleau-Ponty’s seminars) brought this philosophical
concern to bear on the study of law.
Poulantzas’s ostensible purpose was to progress beyond the wider debates in European legal theory, in particular disputes
between ‘legal positivists’ and a new generation of Natural Law theorists concerning the place of values in legal orders. His
recourse to debates on ontology in phenomenological and existentialist philosophy reveal his ambition to secure a
philosophical foundation to resolve this long-standing debate, whilst at the same time affirming the significance of a radical Left
reading of society.
Legal Positivism and Natural Law theory can be distinguished by their respective views on the relation between morality
and law. For positivists such as H.L.A. Hart or Hans Kelsen (and, further back, the work of Jeremy Bentham and John Austin in
the nineteenth century), law and morality have no necessary relation, and law is simply a system of social convention.
Although they differ amongst themselves in important respects, legal positivists typically argue that the moral status of a
norm is irrelevant to its legal status, though law may in many instances overlap with moral prescriptions.13 What the law ‘is’
and what it ‘ought’ to be are for positivists radically different questions.14 For Natural Law theorists, by contrast, there is a
necessary connection between law and morality. Cicero, for instance, had argued that ‘True law is right reason in agreement
with nature’.15 Both traditional Natural Law theorists, such as Cicero or Aquinas, and their modern counterparts like John

5
See N. Poulantzas, Pouvoir politiques et classes sociales (Paris: 1968). Translation: Political Power and Social Classes (London, 1973).
6
N. Poulantzas, Nature du choses et droit: essai sur la dialectique du fait et de la valeur (Paris, 1965).
7
On Poulantzas’s education, see Jessop, Nicos Poulantzas, 6–9.
8
See N. O’Sullivan, European Political Thought Since 1945 (Basingstoke, 2004), 7–10; J. M. Kelly, A Short History of Western Legal Theory (Oxford, 1992),
395–402.
9
V. Descombes, Modern French Philosophy (Cambridge, 1980), 3. See also J.-F. Lyotard, Phenomenology (New York, 1991).
10
Descombes, Modern French Philosophy, 13–24.
11
Modern French Philosophy, 18.
12
Sartre published L’être et le néant in 1943, Merleau-Ponty his Phénoménologie de la perception in 1945. See M. Poster, Existential Marxism in Postwar
France: From Sartre to Althusser (Princeton, 1975).
13
See J. L. Coleman and B. Leiter, ‘Legal Positivism’ in A Companion to Philosophy of Law and Legal Theory, ed. D. Patterson (Oxford, 1999), 243.
14
See Hart’s clear defence in H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71 (1958), 593–629.
15
Cited in B. Bix, ‘Natural Law Theory’, in A Companion to Philosophy of Law and Legal Theory, 224.
 J. Martin / History of European Ideas 35 (2009) 465–474 467

Finnis, Jacques Maritain or Ronald Dworkin, in different ways re-assert the direct legal relevance of moral reasoning, seeking
to ground legal norms in ‘natural’ human instincts.16
As Coleman and Leiter argue, the two traditions differ fundamentally over the issues of legality and authority.17 For
positivists, the legality of legal rules is a fact that exists and functions apart from any moral value. The empirical question of what
law is should not be confused with the normative question of what it ought to be. For in dissolving the distinction, two dangerous
consequences follow: law regarded as ‘immoral’ would be treated as fundamentally illegitimate, rather than merely as law that
ought to be changed but which remained legitimate nevertheless. On the other hand, actually existing law might be granted a
spurious moral status.18 Legal and moral criteria must therefore be conceived as distinct. Likewise, law’s authority – what
makes it compelling – cannot be reduced to its moral force. Law needs to remain valid even when regarded as morally
illegitimate, otherwise there would be no reason for a separate body of law. Instead, positivists often argue that legal authority
stems from its source, not its intrinsic worth, whether this authority be a sovereign power or an impersonal office.
Natural Law theorists, by contrast, seek to reinscribe legal systems in an order of moral value. Rejecting the positivists’
demarcation of law and morality and their effort to generate a morally ‘neutral’ approach to law, proponents of Natural Law
emphasise the inescapable necessity of moral evaluation in law. Positivism, from this perspective, adopts the ‘top-down’
point of view of authority and fails to grasp how legal systems function on the basis of a wider system of values and reciprocal
obligations which are mutually constitutive of all the actors and agencies in a legal order. In this vein, Natural Law theorists
aimed to specify the moral standards by which law and governmental power must function, thus raising the possibility of a
critical standard or ‘higher law’ against which institutions must be judged.19 This, indeed, was the ambition contained in the
revival of Natural Law theory after WWII in Germany where revulsion at the complicity of legal system with the atrocities of
the Nazi regime led legal theorists such as Gustav Radbruch to abandon positivism in favour of the view that law must not
contravene basic principles of morality.20
The young Poulantzas’s early studies on law were directly concerned with questions raised in these latter debates. A
qualified lawyer able to read German, in his mémoire de doctorat, submitted to the University of Paris in 1961, he surveyed a
variety of contributions in German Natural Law theory.21 Later, in his doctoral dissertation – and soon his first book – he
dwelt directly on how to overcome the dualism of fact (fait) and value (valeur) in order to ground legal norms in what Natural
Law theorists call the ‘nature of things’ (nature du choses). But, crucially, this was a concept of nature opened up to historical
and sociological analysis by means of existentialist ontology. It is to that study that we now turn.

Unifying fact and value: Poulantzas’s Nature du choses

In Nature du choses, Poulantzas undertakes what he calls an ‘epistemological study’ directed at producing a revised theory
of Natural Law based on an existentialist ontology.22 His stated aim is to develop an understanding of law that overcomes the
dualism between fact and value, or ‘is’ and ‘ought’, by grounding values in the ontological ‘fact’ of human freedom. As he
argues in his Introduction, Natural Law theorists traditionally treat legal norms as being properly embedded in nature – that
is, in the ‘nature of things’ themselves – but modern law, particularly after Kant, separates off moral reasoning from the wider
Cosmos or natural world.23 The ‘noumenal’ world in Kant’s framework was strictly unknowable and consequently mankind
could only deal rationally with the conditions of knowledge that gave it access to the ‘phenomenal’ world. Thus Kant defined
the moral standard via the categorical imperative: justice flows from the rational capacity to construct a universal norm, not
from the nature of things as such. However, in this formula, continues Poulantzas, moral and legal standards are reduced to a
procedure devoid of any substantive content. Without any ‘ultimate’ guarantee, Kant’s formula is in danger of permitting any
kind of law to present itself as in keeping with its strictures so long as it retains formal validity.24 ‘Positive’ legal norms and
values thus lose any secure grounding in the nature of reality.
Poulantzas seeks to overcome the dualism between fact and value by demonstrating their fundamental unity and, in so
doing, to provide an objective standard against which to analyse legal norms. As he puts it himself:
We intend to reveal a nature of things, the ontological structures of reality that will constitute [. . .] the foundations for
moving beyond the distinction between fact and value [. . .] and [to] their integration in the same totality.25
This ‘totality’, where fact and value exist as distinct but ‘homologous’ terms, is to be revealed, not by appeals to a
transcendental subjectivity or static structure of values but through Sartrean existentialism, which can uncover ‘an

16
Kelly, Western Legal Theory, 378.
17
Coleman and Leiter, ‘Legal Positivism’, 242.
18
See Hart, ‘Positivism and the Separation’, 598.
19
Bix, ‘Natural Law Theory’, 230–1.
20
See the discussions in Kelly, Western Legal Theory, 379–80, 418–25 and Hart, ‘Positivism and the Separation’, 616–21.
21
See N. Poulantzas, La renaissance du droit naturel en Allemagne après la seconde guerre mondiale. Mémoire polycopié (Paris, 1962). For a brief discussion of
this text, see Jessop, Nicos Poulantzas, 31–2.
22
See the discussion of Nature du choses in Jessop, Nicos Poulantzas, 33–8.
23
Poulantzas, Nature du choses, 2–3.
24
Nature du choses, 6.
25
Nature du choses, 53. All English translations of Poulantzas’s writings from the French original are my own.
468 J. Martin / History of European Ideas 35 (2009) 465–474

immanent meaning to ‘‘reality’’‘.26 Poulantzas undertakes to explore this immanent structure by dividing the book into two
parts: one dealing with legal ontology and the other with the sociology of law. Let us look at both parts in turn.

Legal ontology

In this first part of the book, Poulantzas surveys various ontological approaches to law, that is, approaches that interpret
legal concepts relative to their essential structure or ‘being’.27 He begins by examining phenomenological positions that
draw on Edmund Husserl’s methods of ‘eidetic’ reduction. Husserl, the founder of the phenomenological ‘method’, had
emphasised the role of consciousness in constituting the world through its own ‘intentional’ acts. By ‘bracketing off’
objectivity and the ‘natural attitude’ to the world and focusing, instead, on the world exclusively as it appeared to
consciousness without any presumption of an external, hidden ‘cause’, Phenomenology aimed systematically to return ‘to
the things themselves’ and to rigorously examine the contents of experience so as to discern the essential components of
their meaning prior to any division between subjectivity and objectivity. The task of phenomenology, according to Husserl,
was not to ‘explain’ experience but to reflectively redescribe its various modalities in order to deepen our awareness of its
active role in constituting the world.28
When applied to legal concepts and values, Husserlian Phenomenology enables the analysis of fundamental structures of
contract, exchange, marriage and other legal concepts and categories. The description of their essences (for instance in the
work of Georges Husserl – no relation – and Adolf Reinach) illuminates the fundamental elements that constitute legal
meanings. However, Poulantzas notes various problems with the different formulations of this phenomenological approach.
In the work of Edmund Husserl himself, Phenomenology tended towards the ‘hypostatization’ of essences, separating them
off from the world of experience. This encouraged essences to be treated as occupants of a ‘Platonic’ world, removed from
concrete practice. Parallel to this hypostatization, claims Poulantzas, was Husserl’s tendency to seek out a pure,
transcendental subjectivity in contrast to the complex spatial and temporal reality of concrete subjects.29 These problems, he
continues, had implications for Legal Phenomenology.
In the enterprise of Legal Phenomenology, the analyst seeks a structure of meaning that is ‘anterior’ to logical explanation.
Property law in Reinach’s work, for instance, is conceived, essentially, as a relationship of total ‘appropriation’ between a
subject and an object. Property law was not therefore simply the sum of rights granted to subjects by a legal system (as in
Legal Positivism) but a structural relationship to which law must itself adapt.30 Yet, explains Poulantzas, if
phenomenologists such as Reinach explore the essences of legal concepts, nevertheless they admit the possibility of a
‘deviation’ between legal norms and the structure of their being. Legal norms do not always or accurately correspond to their
eidetic essences. This gives rise to what Poulantzas calls ‘axiological problems’: in short, how can legal values be grounded
ontologically?
The answer, for Poulantzas, is that they can’t, at least not by following Husserlian Phenomenology. Either norms have
their foundation in essences – and hence they cannot deviate – or they deviate and hence do not have such a foundation. The
Husserlian tradition, however, by separating actual legal norms from essences, and tending to hypostatize the latter, implies
that there is no necessary connection.31 Essences are treated by Georges Husserl and Reinach as pure ‘potentialities’ to which
norms more or less approximated. Yet to admit this is to break the ‘bond’ with any ontological ground. Moreover, essences
are conceived by legal phenomenologists as individual and distinct, rather than grounded in a unifying totality.32 For all the
effort to establish a fundamental point of reference to clarify legal concepts, Legal Phenomenology cannot provide an
immanent sense of reality to unify fact and value.33
Poulantzas then turns to existentialist approaches to ontology which he associates, broadly, with Hegel, Marx, Heidegger
and, of course, Sartre. The virtue of existentialist philosophy, he argues, is its refusal to bracket off concrete human
experience in order to isolate essences. Instead it seeks out the realm of social and historical existence as the terrain upon
which any ontological structure must be sought. ‘Existential philosophy, in contrast to Phenomenology, places a particular
accent on the practical and effective participation of man-in-the-world on that world through his own actions, attitudes and
behaviour’.34 The existential position, he claims, ‘penetrates more profoundly’ into the ontological analysis. For Sartre,
drawing (somewhat controversially) on Heidegger, human existence precedes essence; man is in a perpetual becoming,
irreducible to a ‘human nature’, and directed towards the world in a constantly future-oriented gesture.35 Mankind is thus

26
Nature du choses, 9. Italics in original.
27
Poulantzas also surveys differing positions on legal ontology in ‘Vers une ontologie juridique actuelle’, Archiv für Rechts-und Sozial-philosophie 50 (1964),
183–205 and ‘Notes sur la phénoménologie et l’existentialisme juridiques’, Archives de Philosophie du Droit 8 (1963), 213–35.
28
For a discussion of Husserl and his influence on phenomenological philosophy, see D. Moran, Introduction to Phenomenology (London and New York,
2000) and Lyotard, Phenomenology.
29
Poulantzas, Nature du choses, 27.
30
This example is explained in Nature du choses, 31.
31
Nature du choses, 39.
32
Nature du choses, 45.
33
Nature du choses, 50.
34
Nature du choses, 16. See also 74–5.
35
Nature du choses, 78. Heidegger, of course, argued that human existence coincided with its essence rather than ‘preceded’ it. See M. Heidegger, ‘Letter on
‘‘Humanism’’’ in Pathmarks, ed. W. McNeill (Cambridge, 1998), 239–76.
 J. Martin / History of European Ideas 35 (2009) 465–474 469

fundamentally free, its essence unfixable within any specific mode of being. In Sartre, but also in Hegel and Marx, this
freedom and becoming of human being is disclosed through forms of negation: a projection towards the world that disrupts
any sense of stasis and grasps it as it is ‘not yet’. Whilst they differ in how freedom and negation are to be conceived, claims
Poulantzas, existential philosophers share a common ontological outlook that permits him to establish an ‘organic
relationship of fact and value’.36
In the existential position, values are fully integrated into the ‘fact’ of man’s ontological condition. Mankind’s disposition
to the world is, as Sartre argued in Being and Nothingness, entirely through a ‘project’ that imposes onto the inert world a
preferred way of being.37 Mankind is thus always already constructing itself factually through values. As Poulantzas
summarises it:
Man is only through his projects, his acts in the world. The project is, as human existence, a break with the given,
creator of an ideal, of a value which itself prompts the act and the realisation of the constitutive project of human
existence. Human existence is, by its very ontological structure, value. Man cannot exist, cannot act, except by virtue of
values which are not only created so that man must exist but, because man is ek-sistance, that is, a project towards the
future, he can and must move beyond the given towards the future.38
Values, therefore, are not, as they are in naturalistic accounts of human behaviour, ‘reflexes’ of pre-existing facts (such as,
for example, responses to ‘external’ stimuli) but the very substance of mankind’s being-in-the-world. ‘Form and content
present themselves, already at the ontological level, as structurally linked’.39 That means that values are irreducible to a
separate world of fact; fact and value remained analytically distinct but emerge from the same, anterior structure of human
existence.40 This unified source is disclosed in human action; and the ‘act’, argued Poulantzas, is the common point of
reference in Hegel, Marx, Heidegger and Sartre. Human action in and on the world – be it Marx’s focus on material labour or
Heidegger’s idea of tools being ‘to hand’ – demonstrate that, for the existential position, it is ‘the act which will carry the
fundamental burden of human existence’.41 Moreover, this common source integrating fact and value constitutes a
‘structural totality’ in which the two terms are ‘dialectically’ related.42 Rejecting Hegel’s ‘conceptual’ and ‘logical’ dialectic,
with its emphasis on Spirit, Poulantzas nevertheless endorses the dialectic as a perpetual process of ‘totalization’ based in
concrete existence.
Facts and values are conceived as dialectical moments of this totality, which constitutes human existence, of the
ongoing dialectical process that is this existence. The fact, the ‘given’ of the ‘situation’ of man-in-the-world, becomes
value through its own overcoming in the practical activities and projects of human existence. The values already
realised, the acts already accomplished, will become the ‘given’ of fact, the past which in its turn will be negated and
overcome in a new opening-action towards the future.43
The integration of fact and value in the ontological freedom of human existence provides a criterion of value judgement.
Mankind must choose an ‘authentic’ over an ‘inauthentic’ existence, that is, an existence that corresponded to its
fundamental freedom: ‘it is because man ‘‘is’’ free that he ‘‘must’’ make himself free, choose his freedom’.44 Poulantzas notes,
however, that existential philosophers and jurists rarely move beyond this abstract injunction to ‘choose freedom’. As a
consequence, their position can often be confused with the Kantian maxim. But, as he explained at length towards the end of
the first half of the book, Kant was unable to formulate an ontology of human sociality, with ‘others’ being fundamentally
unknowable ‘in themselves’: ‘the Kantian subject is trapped within a definitive solipsism’45. But for existential philosophy,
human being is always-already a ‘being-with-others’, constitutively a ‘Me–Other’ relationship.46 To will one’s own freedom
is therefore to will the freedom of others, not on the basis of abstract principle but within the context of concrete social needs
from whence the demand for freedom arises.47
Following Marx, Poulantzas agrees that the fundamental site of human activity is material labour, conceived as an
existential praxis from which arises social values pertaining to freedom. Those values are then eventually embodied in law in
the form of the right to work, to join a union, or to strike. Conceived that way, rights are ontologically grounded in so far as
they emerge as norms from the factual experience of human labour and class struggle rather than as abstract, transcendental
principles.48 Furthermore, continues Poulantzas in this Marxian vein, unlike Hegel who viewed private property as bound,
fundamentally, to the unfolding of Spirit, the Marxist perspective permits us to note the superfluity of private property. That

36
Poulantzas, Nature du choses, 82.
37
See J.-P. Sartre, Being and Nothingness: An Essay on Phenomenological Ontology (London, 2003).
38
Poulantzas, Nature du choses, 82–3. Italics removed from original.
39
Nature du choses, 101.
40
Nature du choses, 86.
41
Nature du choses, 89.
42
Nature du choses, 97.
43
Nature du choses, 99.
44
Nature du choses, 101.
45
Nature du choses, 111.
46
Poulantzas outlines the different positions of Heidegger, Merleau-Ponty and Sartre in Nature du choses, 116–19.
47
See Nature du choses, 128.
48
Nature du choses, 138–9.
470 J. Martin / History of European Ideas 35 (2009) 465–474

is, private property does not constitute a norm that is grounded necessarily in the fact of human existence. For human needs
can be satisfied by other forms of social organisation.49 Indeed, according to Marx (though not quite to Sartre), private
property sets limits to the extension of human freedom and hence has to be abolished in order to achieve a non-alienated – or
authentic – existence.50
In the first part of Nature du choses, then, Poulantzas frames legal analysis in a broadly Marxian existentialist
anthropology of collective human self-creation. His pursuit of a theoretical framework to reconstruct Natural Law theory,
however, is not aimed at elaborating normative principles of law. He does not, for example, develop a moral theory of
freedom for legal use. Rather, he employs his conception of the ‘totality of fact and value’ to establish a sociology of law.

Legal sociology

In the second part of the book, Poulantzas aims to ‘transpose’ his totality of facts and values onto the sociology of law.51
This amounts to formulating, through Marx and Sartre, a social theory in which law designates a part of a ‘superstructure’ in
dialectical tension with an economic base. Here Poulantzas sets himself the task of demonstrating two things: first, the
intrinsically social character of law, grounded in human praxis and, second, the dialectical relationship of law to society
which, in turn, gives rise to the need for what he calls an ‘internal–external’ style of dialectical analysis.
Poulantzas notes again that legal thought tends to proceed on the basis of an assumed distinction between fact and value,
with philosophers attending to the ‘normative’ domain of legal rules and values, and sociologists to the ‘objective’ one of
social relations. While the former assume as given certain social ‘facts’, the latter take as given the meaning of legal concepts
and values.52 Even when sociologists aim to surpass the strict division of fact and value, they often just base values on facts,
treating the two as essentially distinct entities.53 In that case, often where a ‘scientific’ viewpoint is presupposed, values are
themselves conceived as facts to be ‘explained’ by a prior objectivity. But such an approach, claims Poulantzas, cannot fully
account for the ‘internal’ character of legal norms – their meaning in relation to the wider social world – but, rather, treats
values ‘externally’, as reflexes of independent social conditions.54 A ‘comprehensive sociology’, he argues following Sartre,
needs to grasp this internal aspect by means of an interpretive ‘schema’ that discards the ‘scientific objectivity’ of the natural
sciences, with its emphasis on ‘causes’, in favour of one that recognises the integration of subject and object, and thus the
grounding of values in human projects.55
Poulantzas formulates his own integrated schema via the concept of ‘structure’. Legal systems constitute a series of
interrelated concepts and norms – part of a wider totality of human action – such that a transformation in one part
necessarily alters the others. Legal structures are thus linked to a web of interrelated social activities (each with their own
structures), being neither exclusively conceptual nor material.56 As part of this relational whole, legal structures are not fixed
and atemporal but historical, undergoing processes of ‘structuring, destructuring and restructuring’ as human projects
generate new meanings and values that reconstitute the totality.57
Poulantzas then moves on to clarify the dialectical character of law’s relationship to the wider totality. Here he again takes
up a clearly Marxist position, drawing upon Marx’s analysis of ‘infrastructure’ (or ‘base’) and ‘superstructure’. For Poulantzas,
these two levels are conceived not in an immediate, causal fashion where the economic base simply determines the legal and
political superstructure but, rather, as a dialectical totality in which the two are mutually interdependent. The base consists
of the fundamental practices of material subsistence where needs are generated, and it exercises an overall dominance over
the totality.58 The superstructure consists of a series of independent structures (legal, political, moral, etc.) through which
needs are given expression as values. Just as, from an ontological point of view, facts and values are in a dialectical
relationship, so too, from a sociological point of view, are the base and superstructure: ‘[Human] existence is a totality of fact
and value, social praxis is a dialectical totality of infrastructure and superstructure’.59 Law therefore has its foundation, not in
an autonomous, self-sustaining economic base but in its dynamic interaction with that base.
The relationship of law to the economic base, admits Poulantzas, can be of varying degrees of proximity; some laws are
directly related to economic exchange, for example, whilst others are more ‘mediated’. Superstructures in general, however,
are constituted as a ‘relatively autonomous’ realm. It is for this reason that an ‘internal’ analysis is also required; for an
external analysis of law will not always suffice to establish its relationship to the base.60

49
Nature du choses, 142–6.
50
Nature du choses, 146–52.
51
See the introduction to the second part of the text in Nature du choses, 167–9. For a comparable effort to introduce Sartrean existentialism into sociology
generally, see I. Craib, Existentialism and Sociology: A Study of Jean-Paul Sartre (Cambridge, 1976).
52
Nature du choses, 177.
53
Nature du choses, 179–81.
54
Nature du choses, 182.
55
See Nature du choses, 193–9 on the question of ‘objectivity’ in the social sciences. Poulantzas goes on to critique Heck’s theory of law as the expression of
prior ‘interests’ situated at a ‘sociological level’. Nature du choses, 200–4.
56
Nature du choses, 213–15.
57
Nature du choses, 216, 220.
58
Nature du choses, 231.
59
Nature du choses, 235.
60
Nature du choses, 253.
 J. Martin / History of European Ideas 35 (2009) 465–474 471

If [. . .] we take up the point of view of the constitutive relationship of the legal universe and of [socio-economic]
reality, we can conceive how this universe presents a quite specific autonomy. We are not dealing with reducing ‘from
the exterior’ these structures to those of the subjacent reality, but of discovering ‘from the inside’ the mediations by
which the facts of that reality are transposed to the specific level of law as legal structures.61
Poulantzas then goes on to consider key features of contemporary Western legal systems, indicating how a dialectical reality
requires a dialectical method for its analysis.62 This comes in the form of the ‘internal–external dialectical method’, a distinction
that parallels Sartre’s ‘progressive–regressive method’ in his Critique of Dialectical Reason.63 Western legal systems, Poulantzas
explains, are characterised, above all, by a degree of formality, generality, abstraction and self-regulation which permits degrees
of calculability and prediction in the pursuit of legal justice, a view expounded famously in Max Weber’s studies of societal
‘rationalisation’ and analysed by legal positivists such as Hans Kelsen.64 For Poulantzas, however, the need for a formal, abstract
legal structure is premised on the fundamental requirements of the economic base under capitalism in order to render
economic exchanges calculable; it is not part of a generic process of rationalisation (a purely external approach) or an intrinsic
requirement of all forms of law (a purely internal approach) but rather a dialectical transposition into law of the requirements of
the economic base.65 In any particular society, these internal aspects of law will of course be instantiated differently, the
requirements of the base being represented in the legal structure by the mediation of specific degrees of formality, generality
etc.66 The view, common to Legal Positivism, that this formal structure represents an autonomous realm in itself is explained by
Poulantzas by reference to György Lukács’ idea of ‘reification’, that is, the misperception of an entity as having an independent
existence over and above the subjects who created it. Despite this misperception, he argues, the more formal and abstract a legal
structure, the more in tune it is with the economic infrastructure.67
Poulantzas ends this part of the book with a discussion of the ways in which the proximity of economic base and legal
superstructure can be detected in various degrees of mediation. He discusses extensively how the unity and coherence of
legal structures are achieved through the generation of a ‘worldview’ (vision du monde): a global conception of the world or
ethos based on the fundamental economic activities at a particular historical moment. This worldview, which is not
dissimilar to Gramsci’s notion of a hegemonic ideology, is for Poulantzas what enables us to see how laws, which are clearly
at some distance from the infrastructure, are nevertheless related.68 For the ethos of a worldview eventually comes to inform
a variety of judgements in law at a remove from economic matters. For example, Poulantzas argues that the application of
‘general principles’ to legal judgements – principles that are not themselves legally required but form part of the ethos of law
– and the formulation of laws on ‘public order’ often import values considered to be of general application but which reflect a
societal worldview that adheres to the needs of a dominant group.69

Beyond legal positivism

In his conclusion, Poulantzas returns to the theme of Natural Law, underlining the point that his conception of the ‘totality
of fact and value’ provides a distinctive version of that tradition and hence an epistemological resource to move ‘beyond legal
positivism’. Although he has not dwelt on the normative aspects of Natural Law theory, his approach underscores a distinct
axiology, that is, an ontologically grounded approach to legal value:
A legal universe is ‘valuable’, an economic and social system acquires a positive axiological meaning in order to found
legal values, to the extent that it constitutes, historically, a step in the human struggle against the given facts which
alienate and reify man and towards the creation of a ‘human’ universe where man can create his own dignity and
realise his own generic being.70
This principle chimes with the concept of ‘authenticity’, noted above, and derived from existentialist ontology. For
Poulantzas, the approach deserves to be conceived as a new form of Natural Law in so far as it represents a criterion of

61
Nature du choses, 255.
62
Nature du choses, 256.
63
Nature du choses, 261, 270. See J.-P. Sartre, Search for a Method, translated H. E. Barnes (New York, 1963), Chapter 3. This text originally supplied the
prefatory essay to the Critique.
64
For his remarks on Weber, see Poulantzas, Nature du choses, 257–8, and on Kelsen, see 275–9.
65
Nature du choses, 261.
66
‘In effect, the infrastructure can only be transposed into the legal superstructure through specific internal structures of the latter, noted by an interior study,
structures which themselves have their external source noted by a study from the exterior. One doesn’t simply pose the problem of knowing for example
how the economic infrastructure of trusts and cartels is manifest as such in the laws of goods and contracts, but one tries to retrace this manifestation
through the increasingly intense mediation of abstraction, formalism, generality and self-regulation of diverse rules which don’t have, at first glance, any
evident relationship with that infrastructure’. Nature du choses, 272. Italics in original.
67
Nature du choses, 280–5.
68
Nature du choses, 295–301. Poulantzas references Gramsci in a footnote at 296. He is also at pains to distinguish a ‘worldview’ from Karl Mannheim’s
concept of ‘ideology’ which he regards as less focussed on its foundation in the infrastructure. See Nature du choses, 301–3. Furthermore, he rejects a
narrower conception of worldview as a ‘technocratic ideology’, that is, an outlook based primarily on technical needs located in the infrastructure. See
Nature du choses, 303–5.
69
On ‘general principles’, see Nature du choses, 312–3 and on ‘Public Order’, see 323–42.
70
Nature du choses, 348.
472 J. Martin / History of European Ideas 35 (2009) 465–474

judgement external to the positivity of law itself. Legal Positivism portrays Natural Law as expounding substantive moral
principles founded on purportedly transcendent or ahistorical conceptions such as human nature. However, for Poulantzas,
an objective principle of value need not be ahistorical. On the contrary, the ‘nature of things’ he has constructed in Nature du
choses is a ‘nature of becoming’ in which mankind perpetually seeks ‘to conquer its own humanity’ on the basis of historically
given conditions.71

Poulantzas’s epistemological break

There is little doubt that by the end of 1960s, Poulantzas had radically revised his theoretical outlook, discarding entirely
the framework of Nature du choses in favour of a more rigorously articulated structuralist Marxism. Even without the
advantage of hindsight, however, Nature du choses comes across as a sprawling, multi-thematic and heavily footnoted work,
with persistent digressions to demonstrate and clarify various arguments. In these respects, it gives away its status as the
work of a doctoral student. The summary I have offered above barely does justice to its close engagement with an impressive
range of – particularly German – legal scholars. It is, above all, a philosophical study of legal theories and not an overtly
political work; its Marxism is not set apart as a distinctive and autonomous body of thought but is presented as continuous
with the philosophical tradition of Hegel, Heidegger, and Sartre. Its conclusions are modest, ‘methodological’ gestures to the
world of legal scholarship, not triumphant, substantive claims to social and political theory. As a work of Marxist thought, we
might say, it is hardly a call-to-arms.
But even if we accept the book’s modesty as political theory, there are other grounds for Poulantzas making an
‘epistemological break’ with Nature du choses, not least the weakness of the argument itself. His claim to have revealed a ‘nature
of things’ by which fact and value can be ‘totalised’ to produce a revised Natural Law theory is not wholly convincing. What
Poulantzas achieves is to have developed a social theory by which legal norms can be referred back to a general account of social
praxis rooted in economic subsistence. At the time, this offered an alternative, non-reductionist Marxist approach to law that
superseded the limitations of Soviet legal theorists such as Pashukanis.72 But this materialist anthropology provides only an
abstract sketch of external conditions against which to interpret law, and it is certainly far from the universalising normative
principles of classical Natural Law theorists. To say that law is intimately related to social praxis is one thing; to demonstrate
how one law or legal system rather than another is preferable is something else. It is not clear in Nature du choses that Poulantzas
has progressed far beyond the ‘is’ to the ‘ought’, except in noting the different degrees of congruence of legal norms with the
formal requirements of market transactions. His ‘internal–external dialectical analysis’ offers an interesting way of interpreting
this proximity and his existentialist-ontological outlook certainly proposes the principles of ‘freedom’ and ‘authenticity’ as
criteria of normative judgement. These give us some grounds for making retrospective judgements, but neither tells us in the
present how we are to decide which available legal precepts are most attuned to the ‘nature of things’. As Jessop argues, like
other varieties of Hegelian Marxism, the early Poulantzas relied on an implicit teleology to account for the rationality of
history.73 Otherwise – and in keeping with wider criticisms of Sartre’s philosophy – we may say that the injunction to ‘choose
freedom’ offers us very little in the way of guidance as to making practical judgements. Tellingly, in his otherwise laudatory
Preface to the book, Michel Villey – described by one commentator as ‘the principal French representative’ of modern Natural
Law theory74 – rightly asks himself how much further beyond Kant Poulantzas has really gone.75
Poulantzas’s first book is also deeply rooted in a Hegelianised Marxism, so popular in France after WWII, which by the
time of publication was being rapidly swept aside by Althusserian interventions. Indeed, 1965 was the same year that
Althusser published both For Marx and the two volumes of Reading Capital. Three of Althusser’s essays (which later appeared
in For Marx) are noted in the bibliography of Poulantzas’s book but none are employed or even mentioned in the main body of
the text. The Marxism of Nature du choses is thus largely congruent with an unchallenged ‘humanist’ paradigm set by such
figures as Kojève, Sartre, Lucien Goldman, Henri Lefebvre, and Lukács. It dwells in particular on the early Marx’s humanistic
anthropology and develops familiar themes such as ‘praxis’, ‘alienation’ and ‘reification’. In all, these support a philosophical
anthropology with, at its centre, humanity’s capacity for self-creation, and a non-reductionist sociology of ‘base’ and
‘superstructure’ conceived as an ‘expressive totality’ in which the base is determinant in a rather vague ‘overall’ rather than
‘direct’ manner. Poulantzas’s work is resolutely ‘historicist’, too, appealing frequently to the historical nature of social praxis,
as part of mankind’s ontological genesis, and hence also of its legal norms.
This humanist and historicist orientation was resolutely rejected, at least in principle, in Pouvoir politique of 1968 and in
all his subsequent work. In articles published both prior to and immediately after Nature du choses (but in keeping with issues
that arose there) Poulantzas began to engage with Althusserian themes, at first simply noting them in passing,76 but later

71
Nature du choses, 348–50.
72
See E. B. Pashukanis, Law and Marxism: A General Theory (London, 1978).
73
Jessop, Nicos Poulantzas, 47–8.
74
Kelly, Western Legal Theory, 419.
75
M. Villey, ‘Preface’ to Nature du choses, x–xi.
76
See N. Poulantzas ‘L’examen marxiste de l’état et du droit actuels et la question de l’alternative’, Les Temps Modernes 219–20 (1964), 274–302 [translated
in The Poulantzas Reader, Chapter 1]; ‘La Critique de la Raison Dialectique de J.-P. Sartre et la droit’, Archives de Philosophie du Droit 10 (1965), 83–106
[translated in The Poulantzas Reader, Chapter 2]; and ‘La dialectique hégélienne-marxiste et la logique juridique-moderne’, Archives de Philosophie du Droit 11
(1966), 149–58.
 J. Martin / History of European Ideas 35 (2009) 465–474 473

engaging them directly, if critically.77 In this transition period leading up to his full adoption of the structuralist paradigm,
Poulantzas politely suggests the innovations of Sartre and Althusser were of broadly equal significance.78 Soon, however, he
was enthusiastically endorsing Althusser’s analysis and self-critically lamenting that in his first book he had been ‘still
influenced by the humanist historicism of the young Marx’.79 This is not the place to conduct a full analysis of his transition to
Althusserianism but we may note that Poulantzas eventually renounced two of the key elements of his early epistemological
framework:

(1) the subject-centred ontology he inherited from Hegelian-Sartrean philosophy with its concept of social institutions as, in
essence, grounded in intersubjective relations. In its place Poulantzas took up an ‘anti-humanist’, structuralist ontology
where ‘man-in-the-world’ is displaced onto variously articulated, mutually constitutive ‘levels’ of the ‘mode of
production’, and where mankind is the ‘bearer’ of structural roles, not their creator;
(2) the notion of a ‘dialectical totality’, or a simple, ‘expressive’ unity (of base and superstructure), replaced by the idea of the
totality as a complex ‘structure-in-dominance’ consisting of numerous, distinct but overlapping ‘practices’ rather than a
unified ‘praxis’. These fundamental revisions helped shift Poulantzas’s problematic to a political sociology centred on the
state rather than law alone, and on struggles for ‘hegemony’ instead of legal judgements.

In his last published essay on law – ‘A propos de le théorie marxiste du droit’ of 1967 – Poulantzas, now thoroughly
absorbed into the Althusserian paradigm, disputed his earlier view that the general, abstract, formal and self-regulating
nature of law could be linked to the historical genesis of the abstract, alienated being of man.80 In his new analysis, ‘modern
law corresponds to class exploitation and to class political domination’ by virtue of its articulation with a capitalist mode of
production which separates the direct producer from the means of production. That formal separation was ‘presupposed’ in
law and supported an ‘atomisation’ of subjects into ‘individuals’ who were then governed as formal equals.81 This
structuralist explanation – with law as both an effect and a condition of existence of the mode of production – replaces what
Poulantzas dismisses as the ‘economic anthropology of the young Marx’.82 In later work, too, Poulantzas returned to
arguments about the ‘relative autonomy of the state’ and the formal and abstract character of law as an effect of its structural
position, both topics which were first broached in Nature du choses, but now deployed in relation to a substantially revised
ontology.

Conclusion

In reviewing the early work of Poulantzas it is possible, despite his later disavowal of its central themes, to discern
continuities as well as differences with his more recent writings. While his ontology was eventually ‘de-humanised’ and his
sociology was ‘politicised’ in order to foreground the question of the state, Nature du choses nevertheless prefigured his later
studies in its effort to provide sociological analysis with a comprehensive, materialist philosophical grounding. This
grounding viewed society as a complex, interdependent whole that, nevertheless, was penetrated by a dialectical movement
that discredited essentialist categories of social and political analysis.
Undoubtedly, such a view informed Poulantzas’s later writings on the mutations of the capitalist state and the changing
dynamic of class struggle. Indeed, in spite of his explicit theoretical rejection of historicism83, Poulantzas continued to
underline the significance of concrete social struggles on the form of the capitalist state and consequently the various
‘metamorphoses’ it could take.84 This insistence on the influence on institutions of specific social conflicts was often at odds
with the structuralism that informed his Marxism from the late 1960s and, reputedly, it put him out of favour with his
philosophical mentor, Althusser.85 It also accounts for a persistent but productive tension in his ‘mature’ efforts to theorise
the relation between classes and the state, which he finally came to conceive through the notion of ‘material condensation’.
In this respect, the thrust of Poulantzas’s later work owes much to the general orientation set out in his early studies of
ontology and law.
However, in terms of its specific focus, Nature du choses was clearly a product of its time, an intervention into debates in
post-war legal scholarship that latched on to the prevailing philosophical current in continental Europe in the early 1960s.
The subsequent instability of post-war capitalism and the intellectual advance of structuralist principles, however, soon

77
See N. Poulantzas ‘Vers une théorie marxiste’, Les Temps Modernes 240 (1966), 1952–82 [translated in The Poulantzas Reader, Chapter 5].
78
See ‘Vers une théorie marxiste’, 1982.
79
See his footnoted comment in N. Poulantzas ‘À propos de la théorie marxiste du droit’, Archives de Philosophie du Droit 12 (1967), 160. Poulantzas’s
increasing preoccupation with Althusserian methods is visible in the following essays: ‘Préliminaires à l’étude de l’hégémonie dans l’état’, Les Temps
Modernes 234 (1965), 862–96 and 235 (1965), 1048–69 [translated in The Poulantzas Reader, Chapter 3]; ‘La théorie politique marxiste en Grande Bretagne’,
Les Temps Modernes 238 (1966), 1683–707 [translated in The Poulantzas Reader, Chapter 4]; ‘La dialectique hégélienne-marxiste’; and ‘Brèves rémarques sur
l’objet du Capital’ in En Partent du Capital, ed. V. Fay (Paris, 1968), 235–47.
80
Poulantzas, ‘À propos de la théorie marxiste du droit’, 160–1.
81
‘À propos de la théorie marxiste du droit’, 161.
82
‘À propos de la théorie marxiste du droit’,162. Italics in original.
83
This anti-historicism is most pronounced in Political Power and Social Classes. See particularly 37–44.
84
‘A Theory of the capitalist State must be able to elucidate the metamorphoses of its object’: Poulantzas, State, Power, Socialism, 123.
85
See Martin, ‘Introduction’ to The Poulantzas Reader, 10.
474 J. Martin / History of European Ideas 35 (2009) 465–474

rendered the desire to unify fact and value and to transpose this unity into the sociology of law effectively obsolete. Yet,
despite its neglect (not least by the author himself) the work of the early Poulantzas remains an important marker in the
development of a highly original thinker.

Acknowledgments

An earlier version of this article was first presented in September 2005 on a panel on ‘French Marxism and Its Impact’ at
the ECPR General Conference in Budapest. I would like to thank the participants of that panel for their comments. I am
grateful, too, to the insightful comments of one of the journal’s referees.