Chen Airi: Marx and Engels’ View of the Rule of Law

March 2021

Classic Marxist writers Marx, Engels, Lenin have never given up thinking about issues of state and law during the proletarian revolutionary struggle. There are also a large number of incisive discussions on law in classic Marxist works. Marxist legal thought is an indispensable and important part of Marxist theory. Their in-depth research on legal philosophy,and their analysis and criticism of legal phenomena, and their unremitting exploration and their grasp of the laws of the rule of law fully permeate Marxist philosophy, political economics, and scientific socialism.

The law that reflects human freedom and which truly protects human freedom and rights is the true law.

In October 1835, at the suggestion of his lawyer father, Marx studied at the Law Faculty of the University of Bonn. In the first semester, Marx took courses such as the Encyclopedia of Law, the Outline of Law, and the History of Roman Law. In the second semester, Marx took courses such as the History of German Law, European International Law, and Natural Law. In October of the following year, he went to the Law Department of the University of Berlin to continue studying law.

During this period, in addition to studying legal philosophy works of Kant and Hegel, Marx also spent two semesters attending the legal lectures of the jurist Savigny and the criminal law lectures of Hegel’s favorite disciple Mr. Gans. British scholar Isaiah Berlin wrote that Gans’s legal thought “is based on the rationality of the legal system and legislative methods, without a trace of mysticism about the past. It deeply influenced Marx and taught him about theoretical criticism. He never abandoned the concept of correct goals and methods.” Marx devoted his unstoppable philosophical interest to the study of law, thus laying the foundation for the establishment of Marxist legal philosophy. Marx wrote in the letter “To Heinrich Marx”: “I had to study jurisprudence and felt above all the urge to wrestle with philosophy. These were so tied together that, on the one hand, I read through Heineccius, Thibaut, and the sources purely uncritically, as a student would, and, for example, translated the two first books of the Pandects into German; on the other hand, I sought to delineate a philosophy of right through the whole field of law”. 

The young Marx, who was immersed in studying legal books, keenly felt the pulse of the times and the budding revolution. French scholar Jacques Attali wrote in his book “Karl Marx: The Spirit of the World”: “When Karl was studying law in Bonn in the spring of 1836, the London Workers’ Association, which demanded universal suffrage, was established in England. In France,Emile Girardin founded La Presse, and the Paris-Saint-Germain was railway officially opened. Weitling, a German tailor, founded the organization nemed “Alliance of Liberators” organization.  Marx’s doctoral thesis in 1841 devoted his thoughts to the issue of law in the discussion of human freedom in reality.

In 1842, he published a series of papers on the nature and function of law. In the article ” On Freedom of the Press Proceedings of the Sixth Rhine Province Assembly Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates” Marx pointed out: “The Press law is the legal recognition of freedom of the press. It constitutes right, because it is the positive existence of freedom”. 

In the article “The Philosophical Manifesto of the Historical School of Law”, Marx criticized Viktor Hugo’s absurd view that ” “Animal nature is the distinctive juristic feature of man” and argued that the function and role of law is not “despotic violence”. In their efforts to change the unfair and irrational social system, the classic Marxist writers have never given up their inquiry into the nature of law, which makes their criticism of the capitalist legal system always hit the nail on the head. Marxism is essentially a critical theory, philosophical criticism is implemented into practice, therefore Marxism cannot leave the rule of law approach and the rule of law path.

When the Sixth Rhenish Provincial Council supported the inclusion of ordinary violations of forest regulations in the category of “theft” during the debate on the law on forest theft, Marx was sensitive to the fact that in a capitalist society, when private interests conflict with the principles of the law, the interests always prevail, and that “private interests seek to and are reducing the State to an instrument of private interests”.

      Marx stood up for the proletariat in defence of the poor:

“If the law calls this kind of behaviour that can’t necessarily be called a violation of forest regulations as theft of forests, then the law is lying, and the poor will have fallen victim to the statutory lie.” Marx was by analysing legal issues from the standpoint of the people and the young Marx was keenly aware of the influence of the private interests of exploiter forest occupiers social group  on legislators and the trial process. These legal deficiencies are not the result of chance brought about by accidental causes, but have deep institutional roots. In 1843, in his essay “Critique of Hegel’s Philosophy of Law,” Marx noted:

“In a democracy, the institutions of the State, the laws, the State itself, insofar as the State is a political system, are only the self-prescribed and people-specific content of the people.”

Marx believed that socialist law should be an expression of the will of the people at large, “only so that the law should be a conscious expression of the will of the people, that is to say, that it should come into being with the will of the people and be created by the will of the people.” This idea written here can be traced back to some of the writings of the Young Marx. For example, in his article “On the Draft Law of Divorce,” published in December 1842, Marx noted: “It is only when the law is a conscious expression of the will of the people, and therefore comes into being with and is created by the will of the people, that there can be any real certainty ……”

From historical materialist perspective, Law is rooted in material relations of life and Law Expresses and Documents the requirements of economic relations

According to Marx and Engels, there was no law in primitive society, and the rule of law is a product of human civilisation and economic and social development which has reached to a certain stage. In a class society, law is the embodiment of the will of the ruling class that rises to the level of the will of the state, and is a tool for consolidating class rule. According to Engels, law directly reflects the interests of the ruling class and dominates the superstructure. Applying historical materialism, Marx and Engels examined the functional role of law in the context of the evolution from capitalist to communist society, thus coming to a clear understanding of the essential difference between the law of the exploiting class and the law of socialist society.

     In 1844, Marx and Engels co-authored The Holy Family, which further emphasised the phenomenon of the movement of socio-economic relations determining the law by examining the history of the French revolution from the point of view that real material production plays a determining role in history and that material interests determine the principles of thought.

     In the book Critique of Hegel’s Philosophy of Law, Marx initially established a historical materialist view of law, and through the critique of Hegel’s idealist philosophy of law, Marx came to the profound realisation that the family and civil society are the true constituents of the state, and that the understanding of law should be based on the examination of material relations rather than on a single-minded search from logical concepts, as in the case of Hegel.

     In Economic Writings and Manuscripts of 1844, Marx states, “The relations of law, just like the forms of the state, can be understood neither in themselves nor in terms of what is called the general development of the human spirit; on the contrary, the relations of law are rooted in the material relations of life, the sum of which Hegel, following the precedent of the English and the French in the eighteenth century, calls ‘civil society’, and the anatomy of civil society should be sought in political economy.”

 Between December 1846 and June 1847, Marx wrote The Poverty of Philosophy, which was the earliest work of mature Marxism to come out in public. Using his newly born materialist view of history to analyse the phenomenon of bourgoise law, Marx made it even clearer that legislation, whether political legislation or civic legislation, is simply a way of expressing and documenting the requirements of economic relations.

 According to Marx, law is not one of those metaphysical things that metaphysicians believe in, but is a being of positivity that is relevant to every human being as a social subject. The development and refinement and maturation of Marx and Engels’ jurisprudential thought is reflected in such works as The Communist Manifesto, Capital, The Class Struggle in France 1848-1950, On the Question of the Residence, and The Anti-Dühring Theory.

Before the birth of the Communist Manifesto, the Utopian socialists only morally exposed and criticised the evils of capitalism.The Communist Manifesto directed its critique at bourgeois law: “Your ideas are themselves the product of the bourgeois relations of production and bourgeois property, just as your laws are nothing more than the will of your class enshrined as law, and the content of that will is determined by the material conditions of life of your class.”

The German Ideology marks the formation of Marx’s historical materialist jurisprudence Thoughts.

In this work, Marx and Engels completed their critique and transformation of the dialectics of Feuerbachian materialism and Hegelian idealism by arguing that the law as the will of the state cannot be separated from the socio-economic relations that regulate that will of the state, and that “it is not that the state exists by virtue of the will to rule, but on the contrary that the state which emerges from the material way of life of the individual gains at the same time the form of a ruling will.” (TR. Here individual refers to a capitalist)

Marx reveals not only the secrets of capitalist exploitation, but also the bourgeoisie’s use of the law as a weapon of primitive accumulation and the writing of its own hair-raising history in words of blood and fire. Engels, in The English State of the British Constitution, pointed out the extreme contradictions that exist in the British legislative system, reflecting the shortcomings of the capitalist legal system.

Marx’s desire to make the “law on paper” a “living law” in real life reflects Marx’s distinctly practical perspective.

Marx wrote, “Society is not based on law; that is jurist’s fantasy. Instead, the law should be based on society.” Law is a social norm that regulates human behaviour, and legal activity is an important practical activity for human beings.Laws are formulated on the basis of knowledge of complex social phenomena and reflect an organic combination of will and law.The essence of law is embedded in its complex relationship with society and in political and revolutionary practices. Only when legislators have a deep understanding and grasp of the laws of practice can they make the law as close as possible to social reality, and the “law on paper” can become the “living law” in real life.

      Marx wrote:”The legislator should regard himself as a natural scientist, who is not making the law, but merely expressing it …… If this legislator substitutes his own conjectures for the nature of things, then we should reproach him for his extremity.” Law is the relationship between the fundamental rationality of things and the various existents, and the rules or fundamental rationality constitute the inner regularity of the development of things. The rule of law develops under certain developed political, economic, social and cultural conditions. Laws always change with the development of society, and the rule of law moves forward in meeting the needs of social development and the will of the people.

  In 1875, Marx stated in his Critique of the Gotha Programme: “Law (right) can never be higher than the economic structure of a society and the cultural development of that society as conditioned by that economic structure.” According to Engels, law must not only be adapted to the general economic situation,and not only Express the general economic situation, but also an internally harmonious and coherent manifestation of itself which does not contradict itself due to its internal contradictions.