Two Aspects of Law

Two Aspects of Law

If the system of law is defined as human interest sanctioned as a right, then both religion and socialism are unfit for the law. Religion does not understand interests, and socialism does not understand rights..

No law can be based on interest only. Neither can it be based on the so-called “common interest” or the “state reason” because the common interest and the innate right of the so-called individual usually oppose each other. If man is not a person and is only a member of society, as is the case socialism, then he has a priori no absolute and natural rights – he has only the “rights,” bestowed upon him by the state. Beyond that, a member on a society has no other rights.

Rights are inalienable only if they are original and not the will of a king, or a parliament, or of a social class – that is, if they are given by nature or by God and were established only with the creation of man. Rights are an aspect of human dignity, and being so, they transcend time, conditions and history, and reach to the act creation. Here lies the link between natural rights and religion and the divergence between natural rights and materialism.

In The Jewish Question (1844), Marx writes: “So-called human rights, droits de I’homme, as distinguished from droits du citoyen, are nothing but the rights of a member of the middle class, i.e., those of egoistic man, separated from other men and society.” Another writer of the materialistic school, Jeremy bentham, wrote about human rights with disdain: “Human rights are nonsense, and natural human rights are nonsense squared.” In one writing, Bentham calls the French Declaration of Human Rights a “metaphysical work,” which in a sense it is. The search for the origin of the tricolor: freedom, equality, and brotherhood (liberate, egalite, fraternite) in Europe leads us to Rousseau and to the American Declaration of Independence in 1776. Jellinek declares that the Declaration of Human Rights is the consequence of the Reformation, not of the revolution.[1]

Ernest Bloch, who tries to reconcile Marxism and natural human rights, is obliged to conclude: “It cannot be accepted that man is free and equal by birth. There are no innate human rights; they are all obtained or have to be obtained by struggle.”[2]

From this point of view, history is not a conflict between rights but a conflict between different interests. That is the meaning of “class struggle.” The class that emerges victorious in this struggle proclaims its interest (its will) as law.. Therefore, the Marxists say: “Law is the will of the ruling class transformed into legal regulations.” Accordingly, there is no right and wrong, justice and injustice. The question is only which interest comes out as the winner in this struggle.[3]

If that is the case, then it is only the stronger who will have rights. Nevertheless by nature, every law is the total opposite: the right of the weaker for the strong do not need any law. Law has always been a way for the weak to oppose the strong, in the same way as the liberty of opinion and belief is primarily the right to have a different opinion and a different belief. A law which gives the citizen “the right” to applaud and to glorify the ruling clique would not be a law but cynicism. The touchstone of the legality of any social system is the way it treats its opponents and minorities. The power of the strong is a fact, not the law. The law starts where the limitation of this power begins and where it has taken the stand of the weak as opposed to the benefit of the strong. This is why every people fight for a constitution, and every king tries to get rid of it.

Bloch rightly says that “every dictatorship is the suspension of law.” That also applies to dictatorships of the proletariat. After all, is it not the proletarian dictatorship “a reign unlimited by law and based on violence” (Lenin)? Has not practice proved that the dictatorship of the proletariat has been transformed into a dictatorship of the secretariat? The statement that law is the will of the ruling class is the negation of the law’s essence. The definition according to which “law is the measure of politics” (Lenin) or that “the law conscience is a part of the political conscience”[4] has the same meaning. No doubt, this negation of the law has its parallel in the denunciation of religion – that is, a direct result of materialistic philosophy. How could the power of the strong be limited except by religious principles? For what sake should a nation tolerate a minority that it could easily exterminate or divest of its property? What principles did the white immigrants in America violate when they almost completely exterminated the native population? If law is the will of the ruling class, it had a right to do so for it was stronger and historically more progressive, in a word, it was the “ruling class.” What principles did the capitalists violate during the time that Marx called the period of primary capital accumulation? If law is the will of the ruling class, the capitalists – because they were the ruling class – did no violence but the law. That would mean that the workers who resisted were breaking the law, for they were working against that monstrous “will of the ruling class,” or rather were working against a limiting principle of this will – that is, an independent principle.[5] The examination of the nature of this principle puts us in front of the same problems as when searching for the essence of life, art, or freedom.

The true laws of a society are only those which, besides the threat of punishment, oblige the conscience of the citizens, too. Every system of law is such, or at least it pretends to be so. In practice, proletarian dictatorship tends to be a democracy. Any law defined as the will of the ruling class ceases to be only the “will,” for it inevitably becomes “justice,” “righteousness,” or in a word law. This “duality” cannot be avoided; in fact, it is an imitation of the original dualism of the law.

[1] Jellinek: Die Erklaling der Meschenrechte, 1904.

[2] Ernest Bloch: Natural Law and Human Dignity (Belgrade: n.p., 1977) p. 178.

[3] One of those definitions of “the law” reads: “The law is the collection of the rules expressing the will of the ruling class… The application of these rules is done by the force of the state, with the aim to solidify, to strengthen, and to develop the social relationships and conditions corresponding to the will and profit of the ruling class. Vishinsky: The Main Taks of the Science of Soviet Social Law, 1938. The author of this definition, as the main state prosecutor during the purges of 1936-1939 in the USSR, had a good opportunity to show where such a definitions leads to.

[4] Vishinsky: The Law of the Soviet State, trans. Hugh W. Babb (New York; The Macmillan Company, 1948). Also, see Karl Marx’s position on the subject (introduction, ibid., p.37): “Society does not rest on law. That is the phantasy of the jurists. On the contrary, law – in contrast to the arbitrariness of the separate individualism – must rest on the society, must an expression of society’s general interests and needs, as they emerge from a given material means of production.”

[5] A clear proof of this law is the fact that even the slave-holder’s Roman law had to declare the people of man’s freedom: “Ab initio omnes homines liberi nascebantur” (“From the very beginning all men were born free”). Without this, it would not be a law, but the will of the ruling class.