Given our current conjuncture, in which the “crisis of democracy” narrative has gone mainstream, it seems necessary to revisit structural critiques of representative government as well as proposals to address its shortcomings, to think outside the box of liberal democracy by engaging with its most creative detractors. Rosa Luxemburg, a courageous revolutionary with a great capacity to avoid self-deception and resist conformity, offers us one of the most productive critical analyses of representative democracy and the failures of the revolutionary experience in Russia and Germany in the early twentieth century. I suggest that focusing on Luxemburg’s critical assessment of legal reform and her proposal to incorporate councils as a foundational democratic institution could guide us in thinking about effective ways to counteract the increasingly oligarchical structures developing within our constitutional democracies. In both her structural analysis of law and her endorsement of the council system, Luxemburg offers a materialist reading of politics that is refreshing, given the predominantly non-materialist, abstract theory that the Left has tended to produce in the last four decades. [1]
Even if she was mislabeled an idealist–an ideological position she decried as working against proletarian emancipation–Luxemburg’s thought is deeply materialist. [2] From her assessment of the German Social Democratic Party to revolutionary politics in Russia, Luxemburg was able to unveil power relations and their trajectories, and analyze their impact on the material conditions of the subordination of the working class. She comes early to the understanding that Marx and Engels’ insight after the experience of the Commune was correct–that the “working class cannot simply lay hold of the ready-made state machinery and wield it for its own purposes”. [3] The socialist state needs to be constructed from the bottom up, apart and distinct from bourgeois seats of power, through its own class-based, local organs of proletarian power. For Luxemburg, if the material conditions for exercising collective power do not exist, there is no possible path to socialism and thus no real freedom for the working class. To think otherwise is indeed to be clouded by “illusions” that lead to an untenably idealist position: the belief that socialism could be realized by decree. Following Marx, Luxemburg believes that representative democracy is not a deficient political system, unable to further working-class priorities properly, but the very political structure of the ruling class. Delivering socialism through legal reform was therefore not possible. [4] Even if this realization made her deny the possibility of proletarian law within the capitalist system, something Evgeny Pashukanis would develop in the 1920s [5], her thought transcended critique as she focused on the conditions that were necessary for proletarian law to become a real possibility. The popular sectors needed to create their own revolutionary institutional infrastructure; without it, the path to socialism and proletarian law would be foreclosed.
I approach Luxemburg’s work through a constitutional theory lens, and argue that her ideas about the futility of reform and the need to institutionalize working-class power in order to achieve social change are part of a materialist strand of constitutional thought that embraces conflict as productive of liberty, and sees the institutionalization of popular power as a necessary condition for emancipation. Originating in Machiavelli, this strand of radical legal thought emerges from the experience of popular rule, denounces the conflation of the rule of law with liberty, and supports self-governing institutions as the only way to secure liberty as non-domination. Even if Luxemburg’s primary concern was not with constitutional theory, a constitutional interpretation of her political philosophy gives another point of entry into her assessment of the revolutionary processes unfolding in Russia and Germany in the first decades of the twentieth century, as well as the structure of political power she envisioned for the transitional period between capitalist and socialist society. In what follows I first provide an analysis of Luxemburg’s legal thought and lay out her arguments about the inadequacy of representative government for establishing emancipatory, proletarian law. In the second section I focus on her support for democratic rights and workers’ councils as the necessary material basis for a new legal system that would express a socialist rather than capitalist society. The politics of collective power, organized and deliberative, appears through the lens of Luxemburg’s thought as the only one able to guarantee emancipation, able not only to break with the current legal expression of society but to create a new socialist one, based on the political activity of workers’ councils. In the final section I briefly explore Luxemburg’s ideas about what a transitional constitutional regime would look like, and what the duties of the revolutionary government are for enabling the revolutionary path to socialism.
Legal Reform as Regulation of Exploitation
Luxemburg’s critique in Reform or Revolution of Eduard Bernstein’s revisionist theory of socialism offers insights into her general critique of law, which she develops further in her final speeches, written in the aftermath of the 1918 German Revolution. She denounces revisionism as an opportunistic move away from the socialist goal, and also condemns its contribution to the “illusions” and “self-deceptions” that undermine the power of the working class. [6] According to Luxemburg, revisionism “lifted the program of the socialist movement off its material base and tried to place it on an idealist base” [7], one in which the antagonism between capital and labour can be “adjusted” to attenuate exploitation by “bettering the situation of the workers and by the conservation of the middle classes”. [8] This “regulation of capitalism” is certainly not the same as socialism [9], which for her cannot emanate from the existing legality. “Socialism will not and cannot be created by decrees; nor can it be established by any government, however socialistic.” [10]
According to Luxemburg, Bernstein is able to deliver this illusion of “socialism by decree” because his theory “abandons the materialist conception of history” [11] and pulls “details out of their living economic context. It treats them as disjecta membra (separate parts) of a lifeless machine.” [12] By treating factors as separate from the structure instead of as organic links, as “indispensable gear in the mechanism of capitalist economy”, Bernstein misinterprets them as “means of adaptation” able to suppress the internal contradictions of capitalism. Within revisionism, the credit system, instead of a “means of destruction”, is seen as a possibility for “patching up the sores of capitalism”. In the same way, legal reforms, which appear as an effective way to achieve socialism from within the capitalist system, should be seen for what they really are: “surface modifications” to “reform capitalism” and forgo the socialist project. [13]
Luxemburg reminds us that legislative reform was from the beginning a bourgeois strategy, serving “to strengthen progressively the rising class till the latter was sufficiently strong to seize political power, to suppress the existing juridical system and to construct itself a new one”. [14] The new political constitutions, born out of the bourgeois revolutions, legalized a type of class domination that “does not rest on ‘acquired rights’ but on real economic relations” [15]. And since there is no “single legal formula for the class domination of today” [16], it is impossible to suppress it the “legislative way”. While in the past domination was expressed in “distinctly determined juridical relations” that were connected to feudal privilege, bourgeois liberalism codified equal liberty while keeping the material conditions for domination intact. [17] Domination occurs today not through juridical privileges but through wage slavery, which at root is not a juridical but an economic relation. While the right of the feudal lord to extract taxes and services from his vassals can be abolished by decree, the system of domination imposed through contracts and wages cannot be eliminated from the codes of law; it is not law that forces the worker to sale her labour, but her material conditions. For Luxemburg the liberal rule of law is the “political expression of the life of a society that has already come into being” [18], and therefore emancipation from exploitation and domination within this framework cannot be achieved through the law.
Labour legislation, a main goal of revisionist socialism, is a form of “social control” that is “enacted as much in the immediate interest of the capitalist class as in the interest of society in general”. [19] As such, laws that are championed as socialist, as protecting workers, are “simply the regulation of exploitation”. [20] But even if labour laws are not emancipatory–with much socialism as “a municipal ordinance regulating the cleaning of streets or the lighting of street lamps” [21]–this regulation of exploitation, coming out of the “attempt to increase the share of the social wealth going to the working class”, is as indispensable as it is marginal to the socialist cause. [22] In her analysis of the “industrial constitutionalism” promoted by revisionists in Germany, which incorporated trade unions and industrialists, she argued that it is not a socialist type of constitutional project but a mere regulation of labour relations. Even if born in the political action of the masses, the industrial constitutional project would develop a form of legality aimed at controlling labour without including the “material standard of life as a permanent stage of well-being” as part of its core reasoning. [23]
Luxemburg’s denial of the possibility of enacting proletarian, emancipatory law within existing capitalist legality is predicated on her assessment of parliamentarism–as an elitist organ in which the interests of capital predominate–and of democratic proceduralism as a way of masking oligarchy.
In this society, the representative institutions, democratic in form, are in content the instruments of the interests of the ruling class. [24]
After the Social Democratic Party came to power in Germany in 1912, and then decided to switch its position and vote in favour of the war, the “illusion of unity under the socialist banner” began to vanish. Luxemburg denounced the government as not only placating the bourgeoisie with the adoption of a “policy of compensation” and “diplomatic conciliation”, but as a “government representing the bourgeois counter-revolution”. [25]
In a rather paradoxical move, at least from the perspective of radical democratic theory, in which the activation of constituent power opens up the possibility of radical self-institution [26], Luxemburg condemns the decision of the socialist government to convene a constituent national assembly. Her structural argument against setting up such a constituent body is based on the irreducible antagonism between capital and labour, the power of the few to oppress and the many to resist oppression. Because political institutions are forms of power that either reproduce capitalist society or oppose it, she condemns the decision by the socialist government to convene a national constituent assembly because it would develop the power of the bourgeoisie (the selected few) and do nothing to advance the interest of the working class (the organized many). According to Luxemburg, through the wielding of state power the revolutionary government had created a “bourgeois counter-weight to the workers’ and soldiers’ representatives” [27], and thus rather than empowering the workers, it diverted “the revolution on to the track of a bourgeois revolution,” which is not only unable to threaten “capitalist class rule” [28] but also works effectively “against the proletariat and against socialism”. [29] Instead of consolidating the power of workers’ councils and giving constituent power to the masses, the government, following the bourgeois track of constitution-making, established an institution for the select few to decide rules for the new “socialist” society. This was for Luxemburg a counterrevolutionary act.
[1] For example, the scholarship produced by the Frankfurt and Essex schools.
[2] Norman Geras argues her thought has also been mischaracterized as determinism, fatalism, and spontaneism. The Legacy of Rosa Luxemburg (London: Verso, 2015), 21.
[3] Karl Marx and Frederick Engels, “The Communist Manifesto” [1848], quoted in Rosa Luxemburg, “Our Program and the Political Situation” [1918], in The Rosa Luxemburg Reader, ed. Peter Hudis and Kevin B. Anderson (New York: Monthly Review Press, 2004), 358; also available (in different translation) at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/.
[4] Frederick Engels, “Socialism: Utopian and Scientific” [1880], in Robert C. Tucker, The Marx-Engels Reader, 2nd ed. (New York: W. W. Norton, 1978), 713; all available (in different translation) at https://www.marxists.org/archive/marx/works/1880/soc-utop/index.htm.
[5] Evgeny Pashukanis, The General Theory of Law & Marxism (London: Routledge, 2017 [1924]); also available (in different translation at https://www.marxists.org/archive/pashukanis/1924/law/index.htm.
[6] Rosa Luxemburg, “Our Program and the Political Situation” [1918], in The Rosa Luxemburg Reader, 357, at 367; also available (in different translation) at https://www.marxists.org/archive/luxemburg/1918/12/31.htm.
[7] Rosa Luxemburg, “Reform or Revolution” [1900], in The Essential Rosa Luxemburg: Reform or Revolution & the Mass Strike, ed. Helen Scott (Chicago: Haymarket Books, 2008), 66; also available (in different translation) at https://www.marxists.org/archive/luxemburg/1900/reform-revolution/.
[8] Luxemburg, “Reform or Revolution”, 69.
[9] The same as the collapse of capitalism is not equated with socialism. For a discussion see Geras, The Legacy of Rosa Luxemburg, 32–42.
[10] Luxemburg, “Our Program and the Political Situation”, 368.
[11] Luxemburg, “Reform or Revolution”, 97.
[12] Luxemburg, “Reform or Revolution”, 70.
[13] Luxemburg, “Reform or Revolution”, 97, 90.
[14] Luxemburg, “Reform or Revolution”, 89.
[15] Luxemburg, “Reform or Revolution”, 90 (original emphasis).
[16] Luxemburg, “Reform or Revolution”, 91.
[17] Luxemburg, “Reform or Revolution”, 91.
[18] Luxemburg, “Reform or Revolution”, 89.
[19] Luxemburg, “Reform or Revolution”, 61.
[20] Luxemburg, “Reform or Revolution”, 61.
[21] Luxemburg, “Reform or Revolution”, 61.
[22] She uses the image of Sisyphus, pushing a rock up the mountain. “Reform or Revolution”, 83.
[23] Rosa Luxemburg, “The Mass Strike, the Political Party, and the Trade Unions” [1906], in The Rosa Luxemburg Reader, 168, at 185; also available (in different translation) at https://www.marxists.org/archive/luxemburg/1906/mass-strike/.
[24] Luxemburg, “Reform or Revolution”, 64.
[25] Luxemburg, “Reform or Revolution”, 68; “Our Program and the Political Situation”, 367.
[26] For an interpretation of democracy as radical self-institution see Cornelius Castoriadis, Philosophy, Politics, Autonomy: Essays in Political Philosophy (New York: Oxford University Press, 1992).
[27] Rosa Luxemburg, “The Beginning” [1918], in The Rosa Luxemburg Reader, 342, at 344; also available (in different translation) at https://www.marxists.org/archive/luxemburg/1918/11/18b.htm.
[28] Luxemburg, “The Beginning”, 344.
[29] Luxemburg, “Our Program and the Political Situation”, 367.
Camila Vergara is a PhD candidate in political theory at Columbia University, specializing in legal and constitutional theory. Her dissertation theorizes the crisis of democracy from a structural point of view and develops a plebeian strand of constitutional thought that seeks to institutionalize experiences of popular resistance against oligarchic domination.
Legal Form 