I.
This post concerns the bourgeois state. Let me begin with a general point with regard to Marxist analysis, particularly the dialectical unity of theory and praxis. For a given individual to say “I engage in Marxist analysis” means that the analysis in question must be focused upon social change. It also means acknowledging that the objects of theoretical examination, namely socio-economic and also juridico-political processes, are in a constant process of change. The same also holds for theory itself. Theory must be applied to new cases, but it must also be applied to older problems in order to illuminate them, perhaps by offering a different approach, perhaps by focusing upon aspects that have generally been neglected. And by constantly developing and applying theory to the interpretation of historical processes we may place ourselves in a better position to analyse the current predicament.
It is on this basis that I discuss the bourgeois welfare state form, an understanding of which I regard as crucial to furthering Marxist analysis of law and the state. In the welfare state form, social rights are recognised and labour rights (such as the right to strike and the right to collective bargaining) are constitutionally enshrined. Historically, the welfare state presided over the introduction of generalised systems of institutionalised social services, which resulted in the improvement of the living conditions of the labouring classes.
A Marxist analysis of this form would take into account factors like the process of capital accumulation after the Second World War and the need for Keynesian or state-monopolistic policies that further investment in infrastructure and reinvigorate domestic markets so as to avoid intensification of class antitheses and social contradictions. On the contrary, in many analyses, emphasis is placed upon the progressive nature of this state form rather than upon its capitalist nature, or the reasons that led to its adoption. Central in these analyses is the issue of democracy. The process of constitutionalisation of social and labour rights is seen as progressive in itself because of the extension of the democratic principle to industrial relations.
The experience of the Weimar state form is illuminating here. The Weimar Constitution and the Weimar state form were supported by the Social Democratic Party of Germany, one of the leading parties of the Second International. The proclaimed goal of the Weimar Constitution, at least as it was characterized by leading figures like Sinzheimer and Kahn-Freund, was to address the imbalance of power between capital and labour by extending democracy to economic relations. According to them, if the democratic principle does not extend to the economic sphere, manual workers will not be emancipated. In their view, Weimar sought to constitutionalise a series of social and labour rights which would then be able to sustain a balance of power between capital and labour.
However, this balance of power could not be sustained. The reason for this is that the roots of the imbalance were never addressed or contested. A Marxist analysis would locate the fundamental contradiction in the sphere of production, that is the contradiction between a socialised labour process on the one hand and private ownership of the means of production on the other. The Weimar Constitution never threatened private ownership of the means of production. In that sense, one may argue in an Althusserian manner that the Weimar state form contributed to the reproduction of capitalist relations of production. When the need arose for increased exploitation and for the reproduction of conditions for the extraction of surplus value following the Great Depression, the state had to assume a different form so as to be able to reproduce these conditions: a more aggressive and authoritarian form, the Nazi form.
II.
The problem of the state and of the law’s positivity (either in the form of labour law or the welfare state, or even in the form of a judicial decision sanctioning the rights of members of the dominated classes) has been a challenging problem for Marxists. One could argue that Poulantzas’s investigation of the problem of the positive measures that the state adopts for the dominated classes is what leads him to define the state as “a relation, or more precisely as the condensate of a relation of power between struggling classes”. [1] Repudiating the instrumentalist conception of the state, Poulantzas contends that the state should be viewed “like capital”, as “a relationship of forces, or more precisely as the material condensation of such a relationship among classes and class fractions”. [2]
Of course, the Poulantzian analysis of the welfare state form enhanced Marxist state theory by emphasising relative autonomy. The state acts “in a positive fashion, creating, transforming and making reality”. [3] Law, on this account, “does not only deceive and conceal, nor does it merely repress people by compelling or forbidding them to act; it also organizes and sanctions certain real rights of the dominated classes; and it has inscribed within it the material concessions, imposed on the dominant classes by popular struggle”. [4]
A question thus arises: Does the state lose its class character when it adopts legislation to limit and regulate the working day, or when it recognizes positive rights for members of the dominated classes? If the state is the condensation of a relation of forces, does this mean that it is indifferent to the struggle of those forces? Is it neutral as between them? Dimitris Kaltsonis answers this question in a manner that qualifies Poulantzas’s definition:
“Any correlation of forces contains, with the exception of transitional historical periods, a dominant component. It ultimately contains the socio-economic and political component which holds the monopoly of power at both the economic and the political level. As a result, any reflection of the correlation of forces on the legal superstructure finds its absolute limit in this: it cannot supersede the fundamental component, i.e. the ruling class, its state, and its legal system. Any integrated legislative conquests of the subordinate classes are always secondary. The dominant economic and juridico-political system fully assimilates them.” [5]
As much as it is wrong to assume that the state and law are mere reflections of the interests of the ruling class, it is equally wrong to conclude from the falseness of this assumption that the state and law shed their class character because they assume a more liberal or democratic form or because they adopt positive measures for the non-dominant classes. The state assumes different forms based on the concrete level of intensification of socio-economic contradictions (i.e. class struggle and intra-class conflict). Nevertheless, these forms accommodate the fundamental characteristics of the state in the reproduction of class rule and the conditions of production. In his definition of the state, Poulantzas seems to focus on the former more than the latter.
To argue that the state is the material condensation of the relations of forces between classes is accurate, so long as the state is still understood as a class state, that is as one that serves a class function in contributing to the reproduction of capitalist relations of production. This class state, with its class institutions, is not designed primarily to reflect the interests of the dominated classes. To the extent that the capitalist state does reflect such interests, thereby granting rights to the dominated classes, this is so only insofar as these rights serve the process of reproduction. If they do not, they can be discarded. This was the case with the welfare state form in interwar Germany, and it is the case with the welfare state form today. The proposition that the state is relatively autonomous and a material condensation of forces is not incompatible with the proposition that the state is a set of class apparatuses. In fact, the state is relatively autonomous because it is a class state, and it is a class state because it is relatively autonomous.
III.
Given all of this, perhaps we need to revisit the concept of Marxist “dictatorship”. Marxist dictatorship, that is class dictatorship, refers to juridico-political processes in their unity with socio-economic processes. In fact, the emphasis is placed on the latter. Some forms of bourgeois government may be relatively liberal, while in others authoritarian elements may be more dominant. But if they both reproduce the fundamental conditions of capitalist relations, can we not speak of two different forms of the bourgeois state? Of two different forms of bourgeois dictatorship? It is my view that this is not reductionism. The liberal form is not reduced to the authoritarian form, when it is argued that they both constitute forms of bourgeois dictatorship. The starting point is the difference between the two forms. But as much attention is paid to the form of decision-making (whether it is democratic or authoritarian), equal emphasis must be placed on the socio-economic relations that are reproduced by this form.
What sets Marxist theory apart from bourgeois theory? That it examines juridico-political institutions and processes in their unity and contradictory development with socio-economic ones. The Marxist concept of dictatorship is an excellent example of this. A demand for “democracy” in the abstract remains meaningless from a Marxist standpoint. It is problematic to call for the democratisation of capitalist formations such as the European Union without any mention of power, property, and productive relations. And it is equally problematic to celebrate uncritically bourgeois institutions and mechanisms such as referendums for their radical democratic potential.
What Marxist theory can contribute instead is an analysis of the role of bourgeois institutions, and different ways of exercising “public” power, in the capitalist mode of production. From this standpoint, it becomes possible to contest not just the authoritarian and anti-democratic forms of decision making, nor for that matter the neoliberal policies they have frequently accommodated, but the very power, property, and productive relations that these legal forms and policies function to reproduce. It also becomes possible to highlight the need for a properly anti-capitalist alternative.
[1] Nicos Poulantzas, The Poulantzas Reader: Marxism, Law, and the State, ed. James Martin (London: Verso, 2008), 283.
[2] Nicos Poulantzas, State, Power, Socialism (London: Verso, 2000 [1978]), 128.
[3] Poulantzas, State, Power, Socialism, 43.
[4] Poulantzas, State, Power, Socialism, 84.
[5] Dimitris Kaltsonis, Law, Society, Classes [in Greek] (Athens: Modern Times, 2005), 31 (original emphasis).
Dimitrios Kivotidis is Lecturer in Law at the University of the West of England at Bristol. He recently defended his doctoral dissertation in law at Birkbeck, University of London.
Legal Form 