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Eric Engle First Published ~ 2010 All rights reserved with the Publisher, including the right to translate or reproduce this book or parts there of except for brief quotations in critical articles or reviews. Published by SERIALS PUBLICATIONS 4830/ 24, Prahlad Street, Ansari Road Darya Ganj, New Delhi-110002 (India) Phone : 23245225 Fax : 91-11-23272135 E-mail: serials @satyam netinCONTENTS Foreword Rousseau, Precursor of Marx? Karl Marx’s Roots in John Locke Human Rights According to Marxism Socialist Legatism in the USSR Law and Literature in Emile Mackinnon and Marx Left Legal TheoryGoogleFOREWORD ‘This work prevents a broad overview of Marx's theory on the state and the influences Marxist theory has had on legal thought. Marxism was the largest and most far reaching attempt at fundamental systemic reform the world has ever seen, governing at one point at least one quarter of the entire planet. I started my studies of Marxism from the perspective of the cold war: all I knew about Marxism was that it was a global ideology locked in a death struggle with the United States, As I grew older I became more critical and able to assess both Marxism and Capitalism on their own terms, Here I Present a theoretical overview of the Marxist view of law and the state to show that Marxism was a critique from within liberal Western values, a deviation within an historical movement. In practice the Marxist idea of a proletarian dictatorship degenerated into dysfunction and capitalist restoration implemented by the communist party itself. The USS. did not win the cold war. Rather, the USSR lost. Soviet (mis)management was driven by fear, leading to silence, blame shifting, denial of responsibility, lack of initiative, and no reward, only punishment for those who dared to try to innovate. The involuted, defensive and paranoiac Soviet system which brought literacy to Russia and doubled its life expectancy collapsed - resulting in a drop in the average Russian life expectaney. What are we to make of the aftermath? How much of the hopes Marxism offered were lies or unrealistic or attainable? Soviet and Chinese communism alike eliminated illiteracy, elevated the status of women, ended famine and provided8 ‘Marxism, Liberalism, and Feminism basic medical care to hundreds of millions of people who would otherwise never have gotten it, How could systems which start out so successfully, working truly revolutionary social changes, so quickly grind to a halt and degenerate back into capitalism? Liberal theory argues that dictatorships inevitably degenerate into corruption and that the transition between one dictator and another is always dangerous and unstable. The Soviet experience confirms that view. Instead of creating a proletarian dictatorship, Marxism should have sought to struggle through liberalism and pluralism. Self-limiting temporary dictatorships and stable ways of transferring power probably could not have been implemented in the Soviet systems. ‘This work examines the Marxist theory of law and the state as a legal and historical phenomenon, When scholars situate Marxism correctly in its relation to the liberal theories which engendered it and examine the historical experiences of Marxism we can draw both positive and negative inspiration from the Soviet experiences and lessons for contemporary law reform. We can look at the Soviet histories for examples of both “what went wrong” and “what went right” and why. The Soviet legal system was a variant of, and not a major break from, civilianist legal systems just as Marxism itself represented not a break in Western theories of epistemology and state but rather a dialectical synthesis of prior thought by scholars well anchored in the western tradition. That is why the process of legal reform in Eastern Europe — a key aspect capitalist restoration — has gone so smoothly. From the Marxist perspective it may indicate that not enough conscious effort was made at developing Soviet Socialist legal concepts. This work sketches out the position that the Soviet system essentially mirrored the U.S. system with parallel institutions but a different set of justifications. The U.S. and U.S.S.R. were structural similar federal states, victims of fascist surprise attacks, However, they operated under differing teleologies, consequent to a different choice of the principle for the society’s distributive principle: equality for the East, liberty for the West.Foreword 9 There are plenty of productive paths for future research into Soviet/ Socialist legal history and I try here to indicate them. A more controversial and more important position I argue for is that it is wrong to equate the Soviet Socialist legal system with National Socialism. That is another reason why Soviet law and legal theory needs researched — to prevent the whitewashing of brutal failed errors in the past, to stop resurgent fascism. Of course, had national socialism not unleashed a global war it would hold a much better place in history. But then, war was built into the N.S. vision of states locked in zero sum competition for trade and territory. The pre-war German economic miracle that some do not see today but which was only too evident in the 1930s was largely the result of the secret fascist rearmament program. Prior to the war at least, it seemed the fascists had good ideas. Historical perspective is the ability to step out of ones current era and see the world through the eyes of another one, not in hindsight, nor even in foresight, but to be present, mentally, in the past. Seeing that the utopian visions of fascism and communism alike collapsed, one catastrophically, the other gracefully, it is understandable that the post-modernists are distrustful of utopian universal narratives, However, when one looks to the suffering of the Third World and sees life expectancies in the 40s and death from starvation and preventable disease then one is compelled to re-examine these differing social systems from a legal perspective in order to understand the possibilities and limits of fundamental reform. Because both Soviet Russia and Maoist China achieved significant gains in literacy and life expectancy as well as in nutrition and gender equality as compared with Tsarist Russia and War-lord China then that too explains why looking at Soviet law is important: it presents an alternative theory of development which merits consideration, The issue is, how to obtain the rapid progress in literacy, sex equality, nutrition, health care which the authoritarian system obtained without the formation of a totalitarian permanent dictatorship of a self serving elite? This work consists of a theoretical portion, a historical portion and a speculative portion, The theoretical portion0 ‘Marxism, Liberalism, and Feminism compares Marx’s theories with the liberal theories which engendered Marxism, First, a comparison of Marx and Rousseau and then a comparison of Marx and Locke. That section is intended to show that Marxist theory represents a dialectical synthesis of earlier Western scholarly thought Marxism is firmly anchored in the West. Every major Marxist idea can in fact be traced to at least one canonical liberal scholar. The practical portion presents: (1). The concept of Socialist Legality, the Soviet homologue to the idea of the rule of law state. 2) The Marxist Critique of Human Rights ‘This is a legal history of the Soviet legal system intended to show the internal thinking within Marxism about law in practice. It shows that the USSR developed parallel concepts to those in the West but guided by a different teleology ~ distributive justice directed toward equality in society, and not toward liberty and individualism. This too is dialectics, for of course at times the idea of freedom appears in Soviet thought, as a counterpoint to equality, But it is a situation of feedback between two opposing principles dominated by equality. The exact opposite is true in the West. There, the dominant value is liberty, though at times equality, usually procedural equality, appears as a determined concern in mutual feedback with liberty ‘The final three chapters are speculative. They center on an exposure of Rousseau's views on women, a comparison of the post-Marxist feminist Mackinnon and Marx, and a theoretical overview of Marxist influences in left legal theory. This section details the relationship between Marxism and feminism. 1 argue that Marxism diverged most clearly from Rousseau on Women’s rights, ultimately creating a structure of thought known as “feminism unmodified”. Unmodified feminism is nothing other than feminism, separated from the other sciences, at least temporarily, in order to obtain a clear perspective. I argue that feminism unmodified is a permutation of Marxism, in which basic Marxist concepts reappear but transformed and reiterated from the perspective of women and directed towardForeword " answering women’s rights. In so far as Marx sprang from the sexist Rousseau, and in as much as feminism unmodified stems from Marxism the transformation of sexist patriarchy in Rousseau into sexless feminism unmodified is a dialectical example of the dialectical transformation of one pole of a duality into its opposition, Mackinnon considers herself a post Marxist, and I hope by this comparison of her work with Rousseau’s, in light of Marxism in theory and practice, to develop post Marxism a bit, if possible, or at least to clarify @ few minor points about critical legal theory.1 ROUSSEAU, PRECURSOR OF MARX? ‘This chapter compares Marx and Rousseau to show how Marx’s ideas are mostly extensions of Rousseau's work or the work of related liberal western theorists. Marx is often believed, wrongly, to represent a radical break from liberal individualist property oriented thinking, Marx was not innovative. Rather, he compared all the leading theorists and synthesized their ideas into one powerful theory. Marx presents an integration of the best points of a variety of liberals, notably Locke and Rousseau, but also Hobbes and to a lesser extent Aristotle, Heraclitus, Ricardo, Malthus and even Plato but from a different perspective — that of the ruled rather than the rulers. All Marx’s main ideas can be traced to one canonical scholar or another. Understanding analytical tools common to both Liberalism and Marxism contextualizes their divergences and allows one to better understand both the successes and failures of Marxism as a critique in practice of liberal state theory. Rousseau presents a complex of ideas that have developed at the centre of modernity: progress, revolution, nationalism. Rousseau influences contemporary thought directly through the social contract theory, which is still used to justify and legitimate state action, and indirectly through his influence ‘on Marx because Marx took up and developed several of Rousseau’s ideas. However, Marx's work was distorted due2 ‘Marxism, Liberalism, and Feminism to an abuse of the concept of proletarian dictatorship, a concept Marx borrowed from Rousseau, Marxism may well have been better without the concept of dictatorship. The supposedly temporary dictatorship of the proletariat in the Soviet system extended itself inevitably and ultimately led to capitalist restoration overtly in the USSR and covertly in China, Comparing Rousseau and Marx could however have implications for post-modernism. They are considered briefly in the conclusion. Post-modernists argue that modernity has been surpassed: that circularity, relativism, reversibility deconstruction and symbolic exchange have replaced progress, universal narrative, utopianism, objectivity and commerce as the basis of reality. Post modernism rejects grand narratives, the possibility of progress, and sees truth and/ or morality as relative. Post-modernism is still only defined negatively, as a rejection of certain of modernity’s tenets. If we are in the post- modern, its contents are not yet fully defined. Thus we must in all events understand the debates which occurred within modernity to which we now turn. Convergences between Marx and Rousseau The State Progress and the Revolution: We start this study looking by at the theoretical points where Marx and Rousseau converge Revolution is one such point. The myth of revolution is found in almost all countries in the west. The revolutions of 1776, 1789, 1848 and 1917 are generally seen as evidence of the successful struggle for human rights and mark historical progress of the whole society. The reasons for the mythical character of revolution are several - revolution can justify or be justified by any political idea. The idea of revolution is not monopolized by the left. Revolution embodies the idea of cyclical recurrence, which links generations, both living and dead. Further, revolution gives at least the hope of the possibility of realizing dreams, of escaping one’s lot in life and can embody the desire for progress, justice, The myth of revolution can motivate and legitimize the regime (iRousseau, Precursor of Marx? 3 peacetime) or serve in its defense (in wartime). This explains the broad appeal of the concept, which finds expression especially clearly in Rousseau, Locke and Marx. Rousseau and Marx proposed a vision of a society radically different from those which existed before and inspired revolutions throughout of the world. Comparing Rousseau and Marx allows us to understand how their ideas influence revolutions in practice and the concept of revolution in theory For Marx and Rousseau alike there is a right to rebel. Marx even privileges revolutions, saying that “revolutions are the locomotives of history.”! This is the clearest example of Rousseau’s influence on Marx. Both are firmly anchored in modernity and believe in the possibility and desirability of progress, because of the cyclicity of progress. For post- modernity in contrast, cyclicity dooms the world to futility and evacuates progress of any real content. Post-modernism is wrong there; where it sees a wheel dialectical materialism sees a spiral ~ cyclicity, coupled with forward and upward movement to ever more organized states, But if revolutions are the engine of history, what is their nature and source? We find the answer to that question in a study on the origins of the state, The Origin of the State in the family: For Rousseau, Marx, and Aristotle the family remains the original source of social organization, including political organization. Thus there is a certain inevitability of the political for all three. According to Rousseau: “The oldest of all societies and the only natural one is the family.""; “The family is therefore the first model of political societies; the chief is the image of the father, the people are the image of children, and all are born equal only alienating their liberty for [their own] convenience.”* Here, Rousseau and Aristotle agree as does Marx: “The further we go back in history, the more the individual and the individual as producer become part of a larger set, the family first and then by nature the extended family and so on to the tribe, later, then in turn communities arising from the various structures born from the clash and fusion of tribes.” Human life also originates socially: “At the point of origin he [man] appears as a generic being, a tribal being, a herd animal”s4 ‘Marxism, Liberalism, and Feminism The General Interest: If the origin of the State is the family, its power should, according to Marx and Rousseau, be exercised for the majority: The famous formula of Rousseau of “the general will” finds its echo in Marx: “It is only in the name of the general rights of society that a class society can claim general supremacy.”* The Dictatorship of the Proletariat: Another parallel between Marx and Rousseau is that each believes that at certain times in history dictatorship is necessary. When Marx refers to the idea of dictatorship, he intends the idea of a temporary provisional government, after the Roman model. This idea is also found in Rousseau, who takes into account the possibility of the need from time to time in the life of a state of a period of dictatorship to react to unforeseeable crises, Thus he says on that point: “The inflexibility of laws, which prevents them from folding into [current] events, may in some cases render them nocive, and cause the state to collapse in crisis. Order and the slow pace of forms require a space of time that circumstances sometimes refuse. A thousand cases may arise for which the legislature has not in any way foreseen, and it is @ very necessary foresight to sense that one cannot foresee everything, One should not therefore want to strengthen political institutions to the point of refusing the power to suspend their effect. Sparta itself let its laws [at times] go dormant. But its only the greatest dangers which could compel altering public order and one must never stop the sacred power of laws except when itis a matter of the salvation of the fatherland. In those rare, manifest cases one provides for public security by 4 particular act which places the burden on the most worthy, This commission may be given in two ways, depending on the species of danger.”” To remedy this, it suffices that one augment the activity of government, that one concentrates it in one or two of its members. Thus it is not the authority of laws that one alters but only their form of administration. But if the risk is such that the apparatus of laws be an obstacle to guarantee them, then one appoints a supreme chief who would silence all laws and suspend momentarily the sovereign authority; in such aRousseau, Precursor of Marx? 5 case the general is not questionable, and it is obvious that the first intention of the people is that the State should not perish. In this way the suspension of the legislative authority abolishes nothing, the judge who silences it cannot make it talk, he dominates without the ability to represent; he can do all, except make law * ‘The fact that Rousseau was not averse to the idea of a dictatorship is also clear in the following passage: “a dictator in some cases could defend public freedom without ever being able to injure it.. ..the shackles of Rome were not forged in Rome itself but in her armie: ‘The only important limitation of the dictatorship, which is also the reason it is so dangerous and open to abuse, is its temporality. “As for the rest, in whatever way this important commission is conferred, itis important to set the duration to a very short term that can never be extended; in the crises which make its establishment necessary the State is very soon destroyed or saved and once past the pressing need the dictatorship becomes useless tyranny. In Rome dictators served only for six months, ‘and most abdicated before their term. If the term had been longer, perhaps they would have been tempted to extend it further, as did the decemvirs .. The dictator had just the time needed to fulfill the need for which he had been elected, he hhad no means by which to dream of other projects. “” Ifwe reconsider the idea of a dictatorship of the proletariat as a temporary stage needed to abolish the states to build communism, we better understand the idea of Marx on that point. Property The Origins of Property: For Marx, the state is the police agent of the proprietors and thus one must consider the origins of property when examining the state because property and the state are inextricably linked. Here Marx and Rousseau differ slightly: For Marx, property is necessary and good at a certain stage of society. But Rousseau seems close to the proverb of Proudhon, that property is theft, This is because Rousseau6 ‘Marxism, Liberalism, and Feminism rightly sees that the origins of much property is in theft, fraud and conquest. Thereto Rousseau said: “The first who, having enclosed a piece of land, dared to say: This is mine, and found people simple enough to believe it was the real founder of civil society. How many crimes, wars, murders, that miseries and horrors would have saved the point that the human race, pulling up the fence or filling in the pit, had shouted to his fellows: Beware of this impostor! You are lost if you forget that fruits belong to all and the earth to no one!” [10]" ‘The way to resolve this conflict for Rousseau as Marx is to place all goods in common by means of the social contract From that follow the consequences, that the state may expropriate (the power of eminent domain) and that it has the capacity, as an aspect of sovereignty, to escheat property where there are no heirs of a deceased person So we see in this the great distinction between Rousseau and Marx as compared to Locke and Hobbes. For Hobbes and Locke, the raison d’étre of the state is to protect the private property of citizens, Marx grants that this is the origin of the State but disputes that it is the legitimate purpose of social organization. In contrast, for Rousseau the community of property is insured by the State. Marx instead thinks collectivization will eventually result in the dissolution of the State. Marx and Rousseau have thus adopted opposite prescriptions to obtain the same objectives. As for his analysis of the property, like Marx, Rousseau sees property as a function of historical development. So, “this idea of property, depending on many previous ideas which could only have been born successively, did not form suddenly in the human spirit. It required much human progress, much industry and enlightenment, to transmit and augment it from age to age, before arriving at this last term of the state of nature." Conceptually Marx continues this analysis, adding the idea that property and its relations are a function of the mode of production, an idea which had not yet appeared in Rousseau, except perhaps in embryonic formRousseau, Precursor of Marx? 7 In addition to the synthesis of the historical development of “ownership”, Rousseau analyses property in a given epoch, as capital or property (land), or consumer goods (fruits) - although in the end he puts all property into common disposition. This distinction was adopted by the former USSR. But, in contrast, Soviet law maintained the private nature of consumer goods, putting only capital goods (inputs) into common disposition. One could thus note that the liberal democracies have adopted the theory of Rousseau of a theoretical community of property, albeit with a duty of compensation for exercise of the eminent domain. Another distinction: the nationalizations in France and England compensated the expropriated, unlike in the USSR ~ which upon capitalist restoration found itself obliged to compensate the expropriated of the Tsarist regime. Finally Marx's formula was a bit different ~ “from each according to his abilities, to each according to his needs” implying a redistributive ideal which to me scems difficult to achieve and requires a level of social evolution that is intolerant of greed. In short, Marx, like the Calvinists, wanted to legislate a moral frugality. Seeing that for Marx property is a function of different modes of production (hunter-gatherer, primitive agriculture, nomadic, feudal, industrial) property developed in the following manner: “The first form of property is owned by the tribe. It is this rudimentary stage of production, where a nation thrives on hhunting and fishing, raising livestock, or at best, agriculture, In this last case, a large amount of uncultivated land is required Atthis stage, the division of labor is still very poorly developed ‘and is merely a greater extension of the natural division offered by the family. The social structure is limited by this fact to an extension of the family: heads of the patriarchal tribe, below them members of the tribe and finally slaves. Slavery, latent in the family, develops but gradually with population growth and needs, and also with the expansion of external relations of war as well as of barter. ‘The second form of ownership is communal property and state property which one saw in antiquity and which arises above8 ‘Marxism, Liberalism, and Feminism all from a combination of several tribes in one city, by contract for by conquest, in which slavery continues, In addition to communal ownership, private property, movable and later immovable, is already developing, .. With the development of private property, we see the first relations which we find in modern private property ... On the fone hand, concentration of private property ... on the other hhand, a corresponding ... transformation of small plebeian farmers into a proletariat, eo ‘The third form of property is feudal The Effects of Property Inequality: The reason for which Rousseau is hostile to property is that it sees as a source of inequality and injustice. “If we follow the progress of inequality in these different revolutions, we find that the establishment of law and property rights was the first term, the institutions of the judiciary the second, and the third and last was the change from legitimate power to arbitrary power; in such a way that the status of rich and of poor was authorized by the first era, that of powerful and weak by the second and that of master and slave by the third, which is the last degree of inequality, and the term to which all the others finally lead, until new revolutions dissolve the government, or bring it eloser to legitimate institution." This idea of unjust inequality in Marx appears as the idea of alienation. The well known thesis of Marx is that the sale of his work renders the worker at the same time a slave to his boss and alienated to his work. But this concept had a different meaning carlier in Rousseau. For Rousseau, alienation of the worker's freedom concerned legal rather than functional slavery. “To alienate is to give or sell. A man who makes himself a slave of another does not give himself, he sells himself, for at least his subsistence." So, for Rousseau, complete alienation of freedom was incompatible with the idea of humanity itself, “Abandoning his freedom is giving up its quality of man, the rights of humanity, even his duties. There is no possible compensation for anyone who renounces allRousseau, Precursor of Marx? ° this... itis a vain and contradictory convention to state on the ‘one hand an absolute authority and the other a boundless obedience. “That is conclusory reasoning. If one can sell part of their labor why not all of it at once? The best argument is that although functionally equivalent to slaves, employees have, at least in principle, the possibility to escape - which was not the case for genuine slaves - though indentured servants would. So Rousseau’s idea is defensible but was presented incompletely and can still be criticized by the example of indentured servants. In all events, Marx extends Rousseau’s idea of alienation beyond its original bounds and places it on more realistic footing thereby. Nineteenth century working conditions justified the alarmist nature of Marx, but in our day opportunities to prevent abusive working conditions via mandatory social insurance and labor law are more evidence that the problem of labor as functionally equivalent to slavery no longer exists in the first world. It is a very different story in the third world, where sweatshops, child labor, under- ‘compensation and permanent debt are the norm, There, labor is still exploited, paid less than its value. Use Value: Marx and Rousseau cach applied the concept of use value to indicate that the most useful property would also be the cheapest. For Smith this act would be the justification of capitalism itself. But for Rousseau, it indicated that the small farmer was destined for poverty. “Itis easy to see that by its nature agriculture must be the least lucrative of all the arts, because its product, being the most indispensable for all men, must have a price proportionate to the abilities of the poorest. From the same principle one can draw the rule that the arts are lucrative inversely to their usefulness and that the most needed must finally become most neglected. From this one sees that one must think of the real advantages of industry and the real effect resulting from its progress, ‘These are the essential causes of all the poverty that finally precipitate to the most admired nations. As industry and the arts grow and flourish, the farmer, despised, burdened with taxes necessary to maintain the luxury [of others] and10 ‘Marxism, Liberalism, and Feminism sentenced to spend his life between work and hunger, abandoned his fields to go look in cities for the bread that he must carry." ‘This concern for the well being of the peasants and workers is of course one of Marxisms's central tenets. Greed and the Withering of the State: For Smith, self interest drives the economy to the best possible outcomes for all. Rousseau and Marx would disagree. The problem for Rousseau is that greed leads to inequality and poverty: “Luxury, impossible to prevent in men greedy for their own convenience and the consideration of others, soon completes the evil that society had begun; and under the pretext to support the poor which it could not do it impoverishes the rest and sooner or later depopulates the state”, Luxury isa cure far worse than the disease it purports to cure, or rather, it is itself the worst of all evils in any state large or small that might be, and which, to feed crowds of valets and the poor it has made, overwhelms and ruins the farmer and citizen. Similar to these winds burning at noon, covering the ‘green grass with voracious insects who deprive subsistence to useful animals and bear hunger and death in all the places where they make themselves felt From society and luxury it engenders are born liberal arts and engineering, commerce, letters, and all those disutilities which make industry flower and enrich States. The reason for this withering is very simple."" ‘The withering that Rousseau is talking about is the decline of one particular State, by corruption due to decadence and misallocation of resources, problems Marx also took up and directly addressed. But Rousseau sees the state as the solution for these problems, whereas for Marx the state is the embodiment of them. So Marx calls for abolition of the State as a social organization because of its inherent violence which is linked directly to the institution of private property. Because the withering of the state is a Marxist keyword its use by Rousseau deserves mentioning. It is clear that Rousseau considered the idea of a true communism but did not take itRousseau, Precursor of Marx? n up and meant something different by the term withering than did Marx. Analysis Marxism, as materialist ideology emphasizes the practical foundation and strength as verifier of theory. That may also be the case for Rousseau but Rousseau does not, as far as I have seen, discuss materialism versus idealism. Religion Rousseau is skeptical about Christianity, at least, and proposes, like Plato, a universal religious myth ~ deism - to hold his state together.” His opposition to Christianity is a precursor to both Marx and Nietzsche. Marx regards religion as a giant hypocritical lie and presents an atheistic theory without however any mythmaking. Divergences Community and Property “Should we destroy societies, destroy yours and mine, and retumn 10 livein forests with bears? [Such isthe J consequence of my opponents Ireasoning}, which I would love to prevent as much as to shame them by reaching it.” Itis clear that Rousseau was not a Communist. Was this due to practical reasons? Every social act is conditioned by its time. In his age, Rousseau was very radical -even here, because he asked the question which implies the possibility of an affirmative answer. A clever ploy against a tyranny is to measure ones blows and fight only when and where victory is certain. To carefully select cach of battle and win every engagement. Thus, eventually, a people is freed. But they must not try to liberate themselves when victory is not possible Otherwise it would be a bloody and unnecessary waste of force. The main ideas in Marx that are quite different from Rousseau seem to be the result of the influence of Heraclites, Aristotle and Hegel on Marx. They could be summarized under the following headings: class struggle, dialectical materialism,R ‘Marxism, Liberalism, and Feminism super-structure (relations of production) and infrastructure (base; forces of production). Marx appears to ignore Rousseau’s social contract and state of nature because they are not empirical facts. Marx's Analysis: The State: Although the origins of the state and justifications of state acts is very similar between Marx and Rousseau, we have already remarked that for Marx the State is the mechanism of social domination of the dominant class, which contrasts sharply with the vision of Rousseau sees the state. For Marx the state is the problem; for Rousseau it is the solution. Rousseau sees the state, almost in a Hegelian, way, as the purpose of man. For Marx the purpose of the state is dominance of one class by another. “The bourgeois state is nothing other than mutual insurance of the bourgeois class against ...the exploited class, insurance, which must become increasingly costly and more autonomous in front of bourgeois society, because ‘lowering ofthe exploited class becomes ever more difficult “® ; “The state and the organization of society are not, from the political point of view, ‘two separate things. The State is the organization of society.” Class Struggle : “The history of all hitherto existing society is the history of class struggles. Freeman and slave, patrician and plebeian, lord and serf, guild- ‘master and journeyman, in a word, oppressor and oppressed, stood in constant opposition 10 one another, carried on an uninterrupted, now hidden, now open fight, a fight that each time ended, either in a revolutionary reconstitution of society at large, or in the common ruin of the contending classes.”™ Ifthe state is the field of battle, the combatants are the social lasses. In an Aristotelian tripartite tradition Marx sees classes as, roughly, aristocrats, bourgeois and the proletariat. Although class is a main tool of Marx, the idea of class and class struggle is only marginal in the thought of Rousseau.Rousseau, Precursor of Marx? B Dialectics: Rousseau does not as far as I can see describe or use dialectics, Marx was influenced by Heraclites, Aristotle and Hegel on the use of the dialectical method. For Marx, a materialist, matter determines mind and not the other way around. But through the conflict of opposing theses (thesis and antithesis) a new reality emerges (synthesis). In the following paragraph commentary that explains the progression from thesis to antithesis resulting in synthesis is marked inline [thusly] “In the social production of their lives men enter into relations that are specific, necessary and independent of their will ‘The totality of these relations of production forms the economic structure of society, the real basis [the productive forces, i. productive labor and inputs] from which rises a legal and political superstructure [the ideological justifications for the form of social organization, the rationalizations of the productive base] .. The mode of production of material life conditions the social, political and intellectual life-process generally. [Le, Marx is a materialist] I is not the consciousness of men that determines their being, but on the contrary, their social being that determines their consciousness. [Le. Marx is a materialist, not an epistemological idealist ~ matter makes mind, not the other way around] Ata certain degree of development the material forces of production of society come into conflict with existing relations of production or, in what is nothing other than its juridical expression with relations of property within the sytem to which they had been bound. (conflicting theses) From forms of development of productive forces, these relationships become barriers to these forces. Thus an era of social revolution starts 8 fout of confliet between opposing these a new third synthesis of the correct aspects of each opposition emerges by shedding the incorrect aspects of both opposites and integrating the resulting data into an integral whole] Like Heraclites, Marx believes the only constant is change: “There is a continual movement of growth in the productive forces, of destruction in social relations, of formation in ideas; there is nothing immutable but the abstraction of the movement—mors immortalis.”® Rousseau in contrast does not4 ‘Marxism, Liberalism, and Feminism seem to have a worked out position on the static-or-dynamic debate about the nature of reality, Rousseau is not thinking dialectically. Dialectics seem to be wholly absent from his work, Rousseau’s Analysis The State of Nature: Like Locke and Hobbes, Rousseau postulated the existence of a “state of nature” that isa situation of primitive society wherein no state or government existed. There are many problems with this idea of a state of nature. ‘The state of nature is ambiguous. Any phenomena can be called natural, simply by the fact that it exists. One could try to distinguish between things that can exist and things which must exist, things which are inalterable and things which are alterable, But even this attempt test to escape the circularity of the idea of a state of nature does not manage to change the problem with the idea of a fundamental human nature and/ or nature of the universe. This ambiguity and materialism justifies Marx’s decision of not to use the idea of a state of nature ~ that idea is intellectually weak, a myth, and is not a historical reality and is used to manipulate people. Unlike Marx, Rousseau was forced to consider unreal situations because his world was still too influenced by Christianity. This is why the contemporary social contract theorists are out to lunch: they are arguing from or for a theory of the state that was developed to meet the block in conceptualization forced on science by faith. That block is long gone, but the defenders of the social contract unscientifically persist in maintaining an untenable position. ‘The state of nature is the foundation of Rousseau’s state Rousseau’ first law of the state of nature is self-preservation” However, force does not determine right for Rousseau, “Force is a physical power, I do not see what point morals may result from its effects. To submit to force is an act of necessity, not will, itis at best an act of prudence.” The logical conclusion: “We agree that force is not Right, and that one is only obliged to obey legitimate powers."Rousseau, Precursor of Marx? 1s So, when a prince gains power by force, he is in danger unless he legitimizes his physical power by a moral power: “The strongest is never strong enough to be always the master, unless he transforms force into right and obedience end duty.”® This implies that for Rousseau, there is a natural law and natural justice and they are related to each other. Marx does not take up natural law except as he rejects the idea of epistemological dualism (philosophical idealism, e.g. neo- platonism). I argue elsewhere a consistent theory of natural Jaw to materialism is possible and not inconsistent with Marx’s theories. The Social Contract: In addition to the idea of a so-called state of nature, Rousseau uses another tool of Locke and Hobbes-the social contract. Essentially this doctrine holds that the powers must be based on the consent of the governed, at least in their formation, and preferably in their execution. For Rousseau, the social contract is the inevitable response to the state of nature “I suppose men reached the point where the obstacles to their conservation in the state of nature prevailed by their resilience over the strengths that each individual can use to sustain themselves in this state. So this primitive situation could not continue, and mankind would have perished unless it changed its way of being." ‘That is, Rousseau, like Aristotle and Locke, recognizes that social life is inevitably necessary. What he seeks then is not so much as to justify or legitimate a revolutionary republic but rather “To find a form of association that defends and protects with all the collective strength the person and property of each partner, and which, uniting all, nevertheless leaves each free to obey only themselves and remains as free as before." His solution to that problem is the social contract, Marx’s solution is the eventual dissolution of the state into a communal anarchy resulting from prosperity unleashed by industrialization and channelled most productively by socialism Rousseau’s social contract is of course a totally unrealistic myth. Essentially he is arguing for “the total alienation of each associate of all his rights to the entire community" which of6 ‘Marxism, Liberalism, and Feminism course sets the stage for the tyranny Rousseau argues in favour of, the prototype of the dictatorship of the proletariat, which ran so disastrously due to the problem of succession in each instance we observe. Ths loss of rights creates somehow (how?) form of collective bod y: “Each of us together brings his person and his power under the supreme direction of the general will, and we receive each member into this body {politic} as an indivisible part of the whole” - which is of course an echo of Hobbe’s artificial man and has however no parallel in Marx, fortunately, since it is a myth. “It follows from the foregoing that the general will is always right and always tends to public utility, but it does not follow that the deliberations of the people always have the same rectitude. One always wants his own good, but we do not always see [what] it [is]. One can never corrupt the people, bbut often it is wrong, and itis only then that it appears to desire that which is bad ‘There is often a difference between the will of all and the general will; that (the general will] only looks at the common interest, the other looks to the private interest and is nothing bbut a sum of individual wills.” Of course, the general will became the basis of the Red Terror in Revolutionary France, which explains why materialism is better than mythmaking. Just as Rousseau assumed the general will was always right, with disastrous results, so Marxists assumed the proletariat were also evitably correct which is simply not true, no one, no group is infallible. Just as Rousseau needed a national assembly to interpret the general will and split the state between the people and the government (“We have here two very distinct legal entities, namely the government and the sovereign, and consequently two general wills, one compared to all citizens, the other only for members of the administration." so did Marx need a vanguard party to guide the proletariat and interpret its will because he too split the society between the people and its party. In each case however the disconnect between reality and the theory resulted in abuse and distortion.Rousseau, Precursor of Marx? "7 Rousseau raises the problem of inequality of the parties forming the contract: “I give you all my good, provided that you give me all you care to." and tries to solve this problem as follows: “There is but one contract in the State, one of association, and that one only excludes any other.* Which does not logically follow, all the more so since the social contract is a myth. Such machinations are absent in the work of Marx due to materialism We saw that for Rousseau the family is the basic unit of society, and is even the basic model of social policies. So, the resulting state is patriarchal, first because women were consciously and overtly disenfranchised and unequal and second because the state springs from and is modelled after the family. However, Rousseau tries to limit the authority of the state by pointing that adult children — and the citizens is an adult ~only owes respect, but not obedience.” The problem is however that the analogy doesn’t really hold up to scrutiny because states, unlike parents, do continue to command their subjects, even as adults Modernity Both Rousseau and Marx are firmly in modernity: Rousseau’s work is a pre-inscription of modernist ideas in Marx such as the withering of a state (which Marx transforms into the withering of states), alienation (which evolves from Rousseau’s sense of limited rights to a more or less permanent condition in Marx), the rise of the property in history (which I sce as a root of the idea of the forces of production in Marx) and the idea of a temporally limited and dictatorship. All these ideas are developed further by Marx and generally appear in Modernity only within Marxist discourse. Although Marxist ideology is a theory of modernity, with a universal narrative of progress, the set of modern ideologies is larger and also includes, for example, futurism, Fordism, fascism and socialism, among others. One phenomenon of modernity was the trend towards18 ‘Marxism, Liberalism, and Feminism totalising ideologies. Two world wars were the result of these totalising ideologies. This explains why post-modernism is a radical scepticism, especially toward universal narratives of liberation and sees values as relativized. Perhaps also a sense of circularity (self reference) rendering discourse not dialectical but meaningless is another mark of post-modernism. In all events, PoMo is ill defined. Apart from a root of the idea of forces and relations of production, we also find two other roots of modernity in Rousseau. The idea of the semiotic meaning of wealth, which is the foundation of a grammatology of production (Foucault; Baudrillard): “Before we had invented the representative signs of wealth, it could hardly consist of other than land and cattle, the only real goods that men could possess" And thus he started a semiological discourse about the signs of wealth which has since linked Saussure, Foucault and Baudrillard Another root of modern thought in Rousseau - which appears elsewhere in Marx, is the idea of progress. “Progress”, the key idea of modernity itself, and its central uniting force, was also the centre of his investigation of the origins of inequality. As Rousseau said: “What is it precisely a matter of in this speech? To mark in the progress of things where right becomes successor to violence, where nature became subject tothe laws, to explain what chain of wonders the strong resolved to serve the weak and the people to buy rest in an idea at the cost of real happiness..." We have already seen that Rousseau is at least as critical of the effects of the progress as Marx. Which is surprising, frankly, because these effects-the destruction of rural life - were logically linked to the new mode of production, but that was apparently impossible to see when one was still to0 close to the event, The Aristocracy (Aristotle): The last point of the study is also interesting for its paradoxical character. Given that Rousseau is egalitarian, it is surprising to see that under certai conditions he finds it possible that an aristocracy can be just: ‘The first societies governed aristocratically. The heads of families deliberated over public affairs. The young people gaveRousseau, Precursor of Marx? 9 in to the authority of experience without penalty. ... The Indians of North America govern themselves even today, and are very well governed... But as institutional inequality took on the natural inequality, wealth or power became preferred... and the aristocracy became elective. Finally, the power transmitted with the property of the father children making patrician families gave hereditary government, and we saw twenty year old senators, There are three kinds of aristocracy; natural, elective, and hereditary. The first is suitable only for simple peoples, and the third is the worst of all governments. The second is the best: it is aristocracy, properly speaking.” Aristotle before them had also said that men are in no way naturally equal, that some are born for slavery and other for dominance. Aristotle was right, but he took effect for the cause. Every ‘man born in slavery is born for slavery, nothing is more certain The slaves lose everything in their irons, even the desire to leave them. They love their servitude ... force made the first slaves, their cowardice has perpetuated them to it." * This paradox shows that although there are many similar points between them, there are also major differences between Marx and Rousseau. Conclusion ‘There are numerous surprising parallels between Rousseau and Marx but there are also serious divergences. We can find the source of these differences in the differing roles of property in the work of these two thinkers and in their difference on the idea of natural inequality. A common historical method and holistic perspective explains why these two theorists of the state are often very similar and are more similar than different: their similar methodology leads to similar results Footnotes 1 Karl Marx, “Die Klassenkampf in Frankreich” en Karl Marx, Morceaux Choisis Nizan et Duret (eds. Pars, allimard, (1934) page 159. 2 Rousseau, Du Contrat Social, P.19.http:/ / abu.cnam.fr/ egi-bin/ go?eontrat!20, ‘Marxism, Liberalism, and Feminism ibid, page 20 Marx, Grundsisse, Editions Sociales, p12. Marx, Sur les Societés Précapitalistes, 53 Editions Sociales Maurice Godelier, ed. Paris 1973, Karl Marx, Morceaux Choisi, Paris, Gallimard, 1934, P. Nizan et J Duret (eds) P 166. Rousseau, Discours sur! Origine et les Fondements de 'Inégalité parmi les Hommes available at: http:// un2se4.unige.ch/ athena! rousseau/ ir ineg.tt p. 136 Rousseau, Discours sur I "Origine et les Fondements de MInégalité parmi les Hommes available at: hitpy// un2sg4.anige.ch/ athena/ rousseau/ dir_ineg.rtfp. 137. Rousseau, Discours sur | "Origine et les Fondements de l'inégalité parmi les Hommes available at: hicp:// un2sg4.unige.ch/ athena rousseau/ dir neg. p. 138 Rousseau, Discours sur Origine t les Fondements de ‘Inégalité parmi les Hommes http:// un2sp4.unige.ch/ athena/ rousseau/ jr_ineg.tt p. 138.139. Rousseau, Discours sur Origine et les Fondements de ‘Inégaité parmi les Hommes http:! / wndspd.unige.ch/ athena/ rousseau/ jr_ineg rtp. 231 Rousseau, Discours sur Origine et les Fondements de ‘Inégalité parmi les Hommes http! / un2sg4unige.ch/ athena/ rousseau/ jr_ineg.rtt p. 2. Marx, L'ldéologic Allemande, Editions Sociales Maurice Godelier, ed. Paris 1973. 1° section P 147-149, Rousseau, Discours sur ‘Origine et les Fondements de ‘Inégalité parmi les Hommes https / un2sgd.unige.ch/ athena/ rousseau/ jineg.tt p. 258 Rousseau, Du Contrat Social, p. 23. http:/ /abu.cnam.ft/ egi-bin/ go2eontratl Rousseau, Du Contrat Social, htp:// abu.enam.fe/ egi-bin/ go2contratl p28 Rousseau, Discours sur Origine ct les Fondements de ‘Inégalité parmi les Hommes http:// un2sp4.unige.ch/ athena/ rousseau/ jr_ineg.tt p. 197, 1a. ‘La question de savoir sila pensée humaine peut atteindre une vérité objective n'est pas une question théorique, mais une question pratique. (Cest dans la ‘praxis™ que homme doit démontrer la vérité,cest& dire la réalité, la puissance, la précision de sa pensée.” Maex, Theses sur Feurbach, II. 50, Die Deutsche Idcologie.Riazanov, Marx Engels Archiv Francfort p. 533. Karl Mars, Moreeaux Choisis, Paris, Gallimard, (1934) . Nizam et J Duret (eds.) Rousseau, Discours sur ‘Origine t les Fondements de ‘Inégaité parmi les Hommes http:// un2sgsbunige.ch/athena/ rousseau/ je_ineg.t, p 141-149.Rousseau, Precursor of Marx? a 21, Rousseau, Discours sur ‘Origine et les Fondements de I "Inégalité parmi les Hommes https / un2sgd.unige.ch/ athena/ rousseau/ jr_ineg att p. 198, 22, Ibid 23, Karl Marx, Morceaux Choisis, Paris, Gallimard, 1934 P, Nizan et J Duret (eds. P 163, 24. Karl Marx, Morceau Choisis, Paris, Gallimard, 1934 P. Nizan et J Duset (eds. p. 154, Kapital 1689 25, Karl Mars, Morceaux Choisis, Paris, Gallimard, 1934 P, Nizan et J Duret (ds. p. 86. Karl Marx, Morceaux Choisis, Paris, Gallimard, 1934 P. [Nizan et J Duret (eds. P 105. 21, Rousseau, Du Contrat Social, p 20. http:// abu.cnam fe! cgi-bin! go? contrat! 28, Rousseau, Du Contrat Social, p 22. http: abu.cnam.fe/ cgi-bin! go? conteat 21d 301d 31, Rousseau, Du Contrat Social, p 28.htips / abu cnam.fr/ eg contrat a2. 1a 35. Rousseau, Du Contrat Social, 42 136. Rowsseau, Du Contrat Social, Chapitre 35 De Varistocrate. 31, Rousseau, Discours sur I Origine ct les Fondements de ‘Inégalité parmi les Hommes http? / un2sp4unigech/ athena/ rousseau/ jr_inee.tt p. 110, [38, Rousseau, Ditcours sur UOrigine ct les Fondements de ‘Inégalité parmi les Hommes http:// un2sgd.unige.ch/ athena! rousseau/ jjr_ineg.rf p.li0, 38, “AS for the paternal authority from which many derive absolute {government and society, without considering the evidence tothe contrary Locke and Sidney, just note that in the world nothing is further from the spirit of fierce despotism than the sweetness ofthat authority which looks more to the advantage of the one who obeys rather than to the convenience of those who command, By the law of nature's the father is ‘master ofthe child only 80 long that his eare is necessary, that beyond this term they become equal and that the son, completely independent of his father owse only respect and not obedience; because recognition fs indeed @ duty that must be made, but not a right that can exercise.” Rousseau, Discours sur Origine et les Fondements de ‘Inégalite parmi les Hommes http:// un2sgd.unige.ch/athena/ rousseau/ je_ineg.t, p 252-253, 40, Rousseau Discours sur “Origine et les Fondements de | ‘Inégaité parmi les Hommes http:// un2sgd.unige.ch/ athena/ rousseau/ jjt_ineg. st, 24s.ry ‘Marxism, Liberalism, and Feminism Rousseau, Discours sur Origine et les Fondements de ‘Inégalité parmi les Hommes http:// un2sgs.unige.ch/athena/ rousseau/ je ines. p 178, Rousseau, Discours sur! ‘Origine et les Fondements de ‘Inégalité parmi les Hommes https / un2sg4.unige.ch/ athena/ rousseau/ j_ineg.tt p. 2 Rousseau Discours sur “Origine et les Fondements de | “Inégalité parmi les Hommes hip / un2sp4.unige.ch/ athena/ rousseau/ j-ineg.rt page 33 Rousseau, Du Pacte Social, p. 21. http:/ / abu.cnam.fr/ egi-bin/ goteontratl2 KARL MARX’S ROOTS IN JOHN LOCKE Introduction At first glance, Marx and Locke seem to have little in common However a deeper examination of their analysis of property reveals many similarities. Interestingly, they draw very different conclusions from similar analytical perspectives. Locke and Marx each hold to the labor theory of value. One common point among modern economists (Austrian school excepted) is the idea that value is created, and that is created by labor and the source of this idea is Locke and Marx, How does the labor theory of value relate (o the origin of property? Analysis of Property The Origins of Property For Locke,’ as well as Marx, property in the state of nature is common. Property is communal in origin either as a gift from God (Locke) or as an historical fact based on evidence from the world (Marx). Another common point both present is the labor theory of value, the idea that work alone creates value and it gives the right of possession In The German Ideology Marx and Engels explains the idea of the progression of pre-industrial societies through several stages in the history of economic development, Economies developed generally from tribal property moving from huntingEy ‘Marxism, Liberalism, and Feminism and fishing to animal husbandry and then finally agriculture reaching eventually the feudal stage of development, a movement from informal common primitive property through increasingly formalized state property to highly formalized private property.* For Marx, at certain stages of society, private property is necessary and desirable for the progress of society* The Appropriation or Individuation of Property For Locke, property in its origin is a gift from God for all to share. This general communal right becomes reduced to individual ownership by labor.’ For Marx, property in its origins is held jointly by the tribe. Through historical development property becomes individuated, and its value is determined, again, by the work invested into the object.? Use Value and Exchange Value ‘The source of property and value is work, but its expression takes two forms: exchange value and use value.’ Exchange value is the result of surplus wealth.* Use value is the universal value of a thing, its usefulness.’ This idea that we must distinguish between value in use and value on the market is fundamental to modern economic thinking and is another common point between Locke and Marx. Analysis of the State The State of Nature ‘The ideas of Marx and Locke on the origin of property vis-a- vis the state are also similar. Sociologically, Marx sees the origin of property in communal organization - primitive communism- as an historical fact. By contrast, Locke sees the collective origin of property in the fictitious state of nature” as a function of, theology." But the descriptive results which are nevertheless similar result in the state which defines and protects property. For Locke"? and Marx" the function of the State is to defend Property, The collective origin of the state and property does not Prevent class struggle. For Marx, the State is the form a classKarl Mars's Roots in John Locke 25 takes to be dominant, the machine which preserves the domination of an organized class: the relations of production (including property) follows from these facts. Its origin is natural in the sense that social organization is inevitable (humans are not self sufficient), but its form is a function of the relations of production in a given era, ‘The Revolution A final parallel between Marx and Locke: For both, there is a right (o rebel against a tyranny."* A difference however is that for Locke the people can rebel, and in contrast to Marx they should rebel. If we see a certain similarity in the descriptions of the reality described by Locke and Marx, we must also be aware of their differences, including on the class struggle. Thus from similar analytical tools, they arrive at different prescriptions. ‘This poses a problem for the idea of a science of law Contradictions between Marx and Locke ‘The major difference between Marx and Locke is in a similarity between Marx and Plato. For Plato, as well as Marx, society is stratified between different castes. The determinant of the differing prescriptions of Marx, Locke, and Plato is the divergence between their positions on the idea of equality (an indefinable and indemonstrable pre- supposition). For Plato, inequality is natural, inevitable and ‘good - because itis a reflection of the different levels of wisdom and faculties of human beings, which is a function of their moral development. For Marx, in contrast, equality is evidence of our common humanity and seems to be the sine qua non of his prescriptions. Another position determined from their divergent presumptions on equality is the scope of the right to rebel and whether one has a duty to obey. For Plato, there is a duty to obey the state, but for Marx there is a right to rebel against it. Both propositions follow from their divergent views on equality. The same independent variable (equality) also determines Locke's position on individual ow nership (whether property is a fundamental right). However, Marx derives a% ‘Marxism, Liberalism, and Feminism right to basic needs from his position on the value of equality, Work creates value, but the redistribution of wealth to ensure the needs of all are met is no less important. In addition, for Marx only manual labor creates value. The professions only redistribute wealth, they are not productive forces, So, for Marx (as Plato!), The leaders of society must relinquish their individual right of ownership to the collective in order to demonstrate their moral right to rule, which also ensures that their private interests do not divert public power. The different prescriptions of these three thinkers seem to be a function of their different assumptions about the nature of inequality and duties of human beings among themselves. ‘Their differing standards could be expressed in the following syllogisms: For Marx, it seems: (1)_Iustice is to respect the moral equality of all beings 2) If we do not have the means necessary for life, and others have more than the necessities of life, then moral equality is not respected Therefore, society must provide the possessions needed to sustain the lives of all By contrast, I think Plato and Locke: (1) _Iustice is to reward in a manner proportional to the abilities of people (2) The capacities of people are different Therefore, a reward for unequal capacity is just. If prescription can be converted into a conditional description (and it can) then there is no is-ought dichotomy. ‘Thus, it is in fact possible to imply a prescription from a description, provided one only recast the modal verbs as conditionals and express all enthymes exhaustively (to completion). Kelsen’s nco-positivist project to develop a purely descriptive theory of the law is thus condemned as pointless defence of a non-issue (the supposed impossibility of normative inference). Positivism divorces law and morality,Karl Mars's Roots in John Locke n usually proposes ethical relativism and defines the law as the will to power all of which empower fascism. Positivists can say that the fact that Plato, Locke and Marx propose different prescriptions to the same problems is a demonstration of cultural relativism. However, those different answers are consequences of different levels of development, different phases of history. Even if that were not the case and even if all prescription was inevitably flawed, prescription would still be inevitable because humans are social and seek to convince each other to adopt or reject certain courses of action. Moreover, that discourse helps humans develop, helps them discover the good life. Positivism wants to deflect and eliminate this discourse. Worse, functionally, if not intentionally, positivist presuppositions will lead to, or at least support, fascism, a result of the separation of morality and law and the relativization of values. Conclusion To conclude, Marx and Locke are each other's historical mirrors in terms of their prescriptions. For Locke, the challenge is to g0 from a vision of collective ownership, subject to mutual ‘obligations, and with inherently limited accumulation to a right of unlimited ownership, such that property is unrestrained by collective consent or obligation. For Marx, the challenge is to move from the idea of collective primitive tribal ownership through individual property in the industrial system and to restore communal relations of production to avoid the domination of the collective in the industrial era whilst at the same time maintaining and improving the productive power of industry. Locke tried to demonstrate his thesis: (1) By ignoring the classic dualism of the association of corruption inherent in the material (in origin, a Zoroastrian idea) contrasted with the pure character of the spirit. In Western terms, Locke ignores the idea of original sin 2) By downplaying the collective nature of tribal propertyB ‘Marxism, Liberalism, and Feminism G) By a broad definition of property that includes fife as 4 property. Locke used the sense of property more in the sense of an adjective “a property of” than a noun; that is, he was too flexible in his use of the term, going beyond common usage creating thereby the potential for confusion (4) By seeing the function of the state as the maintenance of individual ownership rather than by defining and sustaining the general interest. (5) By defending the development of an idea of exchange value which allows the accumulation and transfer of vast fortunes - and thus an oligarchie aristocracy or bourgeois class, or some combination of these two classes. (©) By enabling the alienation of the individual labor. () By denying the need for communal consent to transfer ownership of property admitted to be held in common (an internal contradiction in Locke’s theory). He denies this for practical reasons. Locke states hereto: "By making an explicit consent of every commoner, necessary to any one’s appropriating to himself any part of what is given in common, children or servants could not cut the meat, which their father or master had provided for them in common, without assigning to every one his peculiar part. ‘Though the water running in the fountain be every one’s, yet who can doubt, but that in the pitcher is his only who drew it out? His labour hath taken it out of the hands of nature, where it was common, and belonged equally to all her children, and ‘hath thereby appropriated it to himself.”"* Leritique his position: (1) Argument by analogy is not as strong as deductive reasoning and moreover this analogy doesn’t hold well. The global economy has nothing to do with a family’s meal.Karl Mars's Roots in John Locke » 2) Proverbs, while being by their simplicity, obscure the real issues and appeal to emotions, which are not rational @) Locke made this argument to manipulate our emotions: he seeks our pity for the hungry workers and children, and asks us to see the volunteering spirit ofpaternalistic aristocrats. Thus we are distracted from the central issue, the division of labor, working conditions, and the correlation between work and remuneration. Reviewing Locke's position in its structure ~ proverb and analogy ~ it seems ill formed. A Marxist would ask for exactly that which Locke sees as a disadvantageous or impossible Without a social right to essential goods, the weak could perish according to the law of the strongest. Sharing guarantees the provision of basic necessities, maintains social peace, and enables social productivity. The maintenance of certain “safeguards” in a liberal economy does not necessarily mean the collectivization of the means of production. These Precautions even appear necessary to ensure the proper functioning of the capitalist system and to prevent its excesses Locke says that reason and the Bible justifies private Property. But this is not necessarily the case. One could also say that reason requires a system of communal property to censure the needs of people with low needs or to fulfill the will of God, Although the ideas of Locke were able to be adopted in English-speaking countries, it nevertheless appears that his vision is not entirely persuasive when critical examined. On the points discussed herein ~ the origin of the state, the origin of property, revolution — Locke and Marx are similar because Marx and Locke use very similar analytical tools. It is likely Marx read and was aware of Locke. The divergences then must be conscious and when Marx diverges from Locke he usually has the better view because he is a materialist. Marx’s theory developed out of and seriously considered the various liberal theories of the state,» ‘Marxism, Liberalism, and Feminism Footnotes LL. Locke, OF Civil Government, Livre Il, Chapitte V §25-30, §42, $45, 2. “Labor is not the source ofall wealth, Nature is jst as much 2 source of tase values (and it is surely of such that material wealth consists!) as labor which is itself only the manifestation of «force of nature, human labor power.” Karl Marx, Critique of the Gotha Programm, ch Available at: hutp:// www marxist.org/ archive/ marx/ works! 1875) gotha/ ehol.htm 3. Sus les Sociétés Précapitalistes, Paris, Editions Sociales, p. 21 (1973). 4. Private property, though a function of given mode of production, "isa mode necessary (oa certain state of development of productive forces.” Marx & Engels, L'déologie Allemande, Pars: Editions Sociales, p. 390. 5. Locke, Of Civil Government, Live Il, Chapitre V §25.30, §42, 45 "| 66. “What isthe social substance common to all these goods? Labor.” Nizan, et Duret,J (eds.) Karl Mars, Moreeaux Choisis, p. 263. Paris: Librairie Gallimard, (1934), citation & Karl Marx Salaires, Prix et Pro 7. John Locke, OF Civil Government, Livre ll, Chapitre V §46:51 esp. $50. 8. “The first aatural form of wealth ist he superfluous or the excess, that part of products not immediately required as use value or, again, the posession of products whose use valve exceeds the frame of simple necessities, Whenever we have examined the passage from barter 10 money we have seen that this surplus or this excedent of products constitutes, in a rudimentary state, production, the sphere properly speaking of mercantile exchange. Superfluous products become exchangeable goods or merchandise.”Karl Marx, Contribution la Critique de L'Economie Politique, Paris, Editions Sociales. Aussi: “The usefulness ofa thing constitutes its use value.” Karl Marx Capitate, Paris: Presses Universitaires Frangais (1993) p. 40 ; “Exchange value appears at first as the quantitative relation, as the proportion in which use values ..are exchanged.” Karl Marx, Capitale, Pars: Presses Universitaires Frangais (1993). 9. “But since gold and silver, being litle useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great par, the measureit is plain, that men have agreed to a disproportionate and unequal possession ofthe earth, they having, by a tacit and voluntary consent, found out a way how a man may fairly possess more land than he himself John Locke, Of Civil Government, Livre Il, Chapitre V §50 also $4651 generally 10, “TO understand political power right, and derive it from its or ‘we must consider, what state all men are naturally in. and that is, of perfect freedom to order their actions, and dispose oftheir possessions and persons, as they think fit, within the bounds of the la” of nature, without asking leave, or depending upon the will of any other man. A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another” Locke, Il, I, 4).Karl Marx's Roots in John Locke 31 LL, “But though this bea state of liberty, yet it is not a state oflicence: «The state of natuse has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” Locke, Il Il 6) 12, “The great and chief end, therefore, of men’s uniting into common. ‘wealths, and putting themselves under government, isthe preservation of their property.“ Livre Il, Chapitre IX §124) 13, Marx deseribes the progression of society from hunters and fishers through pastoral nomadie peoples who knew “sporadic agriculture” and who grew in importance with time and played "a determinant role for landed property, collective at its origin”. Centre d'Etudes et Recherches Marsistes Sur Les Socités Précapitalistes 1. 36 Pars: Editions Sociales, (1973) citation & Kael Marx, Grundrisse p. 36. 14, Locke, Livre Il, Chapitre XIX, §223-226, 22, 15, John Locke, Two Treatises, I § §29 hupi/o sm_ slatiextSstatiefile= show php%3 Fut &layout=hem<emid=273 HUMAN RIGHTS ACCORDING TO MARXISM. Marxism sees liberal individualist freedoms as a step up from feudalism but not as the end of historical development Marxism defends not just negative "freedoms from" (Procedural justice) but also affirmative "rights to" (claims), However, rights are contextualized in Marxism by the logic of socialist development rather than capitalism. Thus rights are collective, social, relative and substantive rather than individual, absolute and procedural. The Marxist critique of fundamental rights and freedoms is a dialectic between first and second generation rights. This chapter presents a detailed explanation of the Marxist conception of human rights and critique of capitalist individual freedoms. Rights and freedoms are best seen not as conflicting but as complementing each other. Marxist human rights laws are collective! social claims of all persons to substantive goods, subject however to the limitations imposed by the material facts and contextualized by the finality of the socialist construction. Marxist human rights law is determined by its own teleology-collectivist socialization, instead of individualist proprietary rights-and aims toward the dissolution of the state and law? For Marx, as in capitalism, human rights and freedoms are not absolute but relative,Human Rights According to Marxism 3 Marxism both criticizes the limitations on individual procedural freedoms (processes) in capitalist human rights law and proposes to supplement or replace them with fundamental collective, substantive rights (claims). Marx saw capitalist human rights as progress relative to feudalism? and regarded human rights as necessary for the achievement of socialism‘ Liberal (capitalist) human rights law is individualist and property centered. Fundamental rights and freedoms under capitalism, from the Marxist perspective, are determined in terms of their efficiency to exploit workers. To Marx, freedoms in liberal democracies are illusory in that the individual value advocated by the liberal regime is market value, not human dignity, For Marx, the fundamental rights capitalism defends are not universal human rights but rather the rights of capitalists to property and procedures appurtenant thereto, Both Marxism and liberal individualism claim to protect the fundamental value of every person. "Which is the better system?" depends on an axiological choice of distributive justice - individual procedural freedoms (processes) versus collective egalitarian solidarity rights (claims). The distributive principles in socialism are collectivization, socialization, solidarity and equality. The distributive principles in capitalism are individualism, independence, self sufficiency and liberty/ freedom. There are good arguments for both values and any system likely draws on both the idea of liberty and the idea of equality. In Marxist terms there is a tense dialectic between freedom and equality. The best view is to see “rights to” and “freedoms from” as complementary. The capitalist "freedoms from" defend against arbitrary government and the socialist "rights to” defend against poverty and desperation. Our analysis will consider the Marxist critique of the liberal concept of human rights, especially the fact that these rights in fact only serve as a self-legitimation of the inegalitarian capitalist system ‘The Maniist Critique of Human Rights ‘The Marxist critique of human rights is radical.* Only fascism has posed a comparable challenge to the idea of fundamentalEn ‘Marxism, Liberalism, and Feminism rights of individuals.* Yet it would be inaccurate and unfair to equate Marxism to fascism, even though they are both deterministic ideologies.’ For Marx, history is determined by dialectic materialism and class struggle; to fascists, history is determined by a struggle between races - rather than classes - and dialectical materialism is an illusion. Fascism is based on an assumption of racial inequality. In contrast, Marxism is egalitarian. The Marxist critique of liberal states is based on the idea of basic respect for all persons. Fascism is also critical of the liberal state because of liberalism’s inability to assert certain martial virtues. ‘The Marxist critique of human rights is nuanced.* and as such deserves to be considered. In addition, the Marxist position affirms human rights not as absolute formal procedural niceties but as substantive claims in the material world, albeit relativized by the real world facts. Marxist human rights are relativized by class struggle and historical materialism. As a quick synopsis, one could say that the Marxist eritie of human rights asserts that the rights and freedoms of bourgeois democracies are but illusions,’ empty of meaning and purely formal, at most procedural." The working class (who today live largely in the Third World due to outsourcing), lacking economic means and intellectuals to enforce its rights, is a victim of "the shell game","' where the principles of equality and legality - in theory - mask de facto inequalities and these inequalities will be reflections of the struggle between different social classes, Thus, according to Marx, eliminating differences of classes would be the beginning of the end of inequality and the beginning of the realization of the person. Marx's criticism refers specifically to the French example: "Above all, we find that the so-called rights of man, human rights versus the rights of citizens, are nothing other than the rights of member of bourgeois society, that is to say selfish ‘man, man separated from man and the community, (..) Equality, taken here in its apolitical signification, is nothing other than the equal freedom described above, namely that every man is considered as equivalent like such a monadHuman Rights According to Marxism 3s reposing on itself. The constitution of 1795 defines the concept of equality, in accordance with its importance, as follows: Art. 3. (Constitution of 1795), "Equality is that the law is the same for everyone, either because it protects or punishes, Security Art, 8 ~- (Constitution of 1795). ~ "Security is the protection afforded by society to each ofits members for the conservation of his person, his rights and property. Security is the supreme social concept of bourgeois society, the concept of the police, that any society exists only to ensure to each of its members the conservation of his person, his rights and his property. In this sense Hegel called bourgeois society a "state of necessity and understanding." Thus, Marx's criticism is a global condemnation of liberal regimes generally." For him, the state is concerned about the protection of capitalist interests, while ignoring those of workers." For Marxists, the idea of freedom is a social construction, created by society and for society which arises under certain particular conditions. "Hegel was the first to accurately represent the relationship of freedom and necessity. For him, freedom is the intellection of necessity. Need is blind only to the extent that it is not understood. "Freedom is not in a dream of independence from the laws of nature, but in the knowledge of these laws and the possibility thereby to implement them methodically for those purposes. This is true both of the exterior laws of nature as well as of those that internally govern the physical and mental existence of man himself two classes of laws that we can more of less separate in representation, but not in reality, Freedom of the will does not therefore mean something other than the ability to make more informed choices. So, the more the judgement of a man is free on a specific question, the greater the need that determines the tenor of that judgement. Freedom is therefore in the empire of ourselves and over the external natural world, based of knowledge of natural necessities, so it is necessarily a product of historical development, but any progress of civilization isa step towards freedom ."56 ‘Marxism, Liberalism, and Feminism ‘Thus, the Marxist critique is relative, recognizing that - in historical development - the limited protection of human rights in the capitalist system of production is still higher than the previous feudal stage." However, according to Marx, to achieve the next step forward in civilization, all proprietary relations must be suppressed and replaced with human relations. We can note that the Marxist critique of human rights is reduced in part to a criticism of property law, Far from being the means by which freedom is exercised, the usual liberal capitalist conception, Marxism sees private property as the final mechanism of oppression and a source of separation between men." The resolution of these inequalities would occur, for Marx, via a revolution aimed at the implementation of a temporary dictatorship of the proletariat" as a step towards the disappearance of the state and its replacement by society.” ‘The failure to determine methods to control the dictatorship of the proletariat was one of the causes of the excesses and hindrances of the Soviet regime. The sm - that "human rights” are empty of meaning in practice and they hide badly de facto inequalities with a superficial and illusory fictive legal equality - seems partially correct.” The response of those who defend the liberal democracies is that a theoretical entitlement is a panacea, and that if liberal democracies are bad, Marxist regimes are worse To analyze the accuracy of this view I must present some basic concepts of Marxism, and then define the concept of individual rights under Marxist theory ‘The Marxist Concept of Human Rights in Theory A central idea of Marxism is that history follows progressive development according to successive stages. This progress will Iead to an improvement in people's lives through the development of new technologies (improved forces of production). In addition, the driving force behind this dialectical process* between the past and the future is social struggle, particularly class struggle, This progress, rather than drawn to “ideals” (Hegel's erroneous view) is driven by material forces (forces of production).Human Rights According to Marxism 37 Historical materialism implies abandonment of a naturalist metaphysics of human nature. Thus, we consider Marxism as a normative positivism in the capitalist and socialist eras (late modernity) prior to the eventual future establishment of anarchic communism (the end of history). With this foundation we can analyze the legal regimes constructed by this antinomian thought aimed to aid the transition from capitalist imperialism toward communism ‘The Marxist Concept of Human Rights in Practice Our analysis now turns to the historical practice of human rights in Marxists countries. We will examine a surprising number of parallels between Marxist and capitalist systems on human rights. This could be the result of moral relativism Ieading to a pure voluntarism, and the fact that the value of economic progress is a common value to both systems. As in the liberal democracies, human rights in the proletarian dictatorships were relativized,” and subject to the principle of legality; similarly, in liberal democracies, rights imply reciprocal duties.* However, unlike liberal thought, Marxism is collectivist, so the practice of Marxist regimes respects collective rights more then individual rights individual rights were subordinated to collective needs." Thus, symmetrical legal mechanisms, but guided by ifferent teleologies were implemented in the proletarian dictatorships in order to guarantee standards of a general and abstract nature, which in turn served to legitimate the system due to respect of different but perfectly admissible basic values such as the right to work, the right to housing, the right to food, education and medical care. ‘These parallels show that the issues of voluntarism and relativism are beyond the economic system. Totalitarianism ‘can be erected on behalf of the people, a dictator or money. For this reason, among others, we can see a contemporary scepticism as regards projects of political and economic transformation whose utopian ideas seem to be exhausted. This, scepticism toward universal narratives is most evident in post modernism,8 ‘Marxism, Liberalism, and Feminism Conclusion: The Liberal Critique of Marxist Regimes In conclusion, the liberal democracies have been able to claim to protect more "freedom" than the proletarian dictatorships. In contrast, the self described socialist democracies can claim to have better protected “equality” as a human right. In the end, the struggle between these two systems involved the basic difference between economic freedom from state intervention in individual affairs versus the egalitarian right of all to a claim in at least the necessities of a decent life. The conflict, ideologically speaking, was between procedural-individual- "freedom-from” versus substantive-collective-"rights-to”, At the level of practice, a valid liberal criticism of Marxism is the fact that the Marxist proletarian dictatorships indefinitely prolonged the proletarian dictatorship which in fact had been intended only to be a temporary transitory phase.” The response from Marxism would be that capitalism forced them to be organized as authoritarian state and that the proletarian dictatorships succeeded, despite fascist invasion, at imple- menting a formal rule of law state, (formeller Rechtstaat), “socialist legality". Apart from the Stalinist excesses, necessitated by the pending Nazi invasion, this statement is largely correct Another two criticisms of Marxism” are its subordination of freedom to serve the ideology and the Communist Party monopoly on power.” The fetishization of the vanguard party indeed set the stage for the corruption of the nomenklatura But absolute freedom doesn't exist. The valid critique is not the lack of ‘freedom’ but rather the presence of an all powerful party elite dictatorship which rather than serving the people ultimately aggrandized power and restored capitalism, ‘The economic critique of conditions of these regimes is a practical one: that a collectivist vision” ignores the profit motive and is not realistic about the role of self interest in human affairs and thus underperforms. In its extended role as producer, the state-which could not disappear in the face existence of existing capitalist regimes - could not rely on the idealism of Workers (Stakhanovism) or on their (forced) labor. ‘The economic arguments are beyond the scope of this paper, though the Marxist would argue that their system was notHuman Rights According to Marxism » based on the exploitation of Third World labor, unlike capitalism Finally, at the historical point where Marxism became seen as a collective oppression of the individual-rather than a force for liberation-the moral force of legitimization of that ideology was lost-and thus its capacity for expansion. Indeed, a universalist ideology of liberation that does not in fact liberate but rather stagnates and oppresses loses all power of legitimation. Thus, the experience of Marxism tends to show that one of the functions of human rights is political legitimation as well as protection of the weak. Legitimation and justice can and even should be mutually reinforcing. The study of a seemingly outdated legal system is justified because that system could serve as inspiration for what to do the world we live in today and what we ought not to do, Understanding that Marxism went too far in enabling a proletarian dictatorship to mutate into a corrupt party led by tyrants is a first step to developing a Marxism that can attain the valid dream of peace and prosperity for all people. FOOTNOTES 1 “The goal of socialist civil rights i neither absolute individualism or the loss of the individual within the masse. Rather, fundamental rights contribute to the formation of all-round developed harmonious persons."Georg Klaus and Manfred Buhr (eds.), Philosophisches Woortebuch, Leipzig: VEB Bibliographisches Institut (1974) p. 783. 2. “The withering of certain categories of bourgeois law (the categories as stich, not this or that precept) in no way implies thei replacement by new categories of proletarian law, just as the withering away of the categories of value, capital profit and so forth in the transition to fully developed socialism will not mean the emergence of new proletarian categories of value, capital and so on. The withering away of the categories of bourgeois law will, under these conditions, mean the ithering away of law altogether, that is to say the disappearance of the juridical factor from social relations." Pashukanis, Law and Marxism. A. General Theory, trans, Barbara Einhorn (London: Inks Links, 1978) p. ot 3. “Already in his ‘On the Jewish Question” Marx had proven that the s0 called Human rights are lass rights - political emancipation is a great step forward but only progress within the exploitative society"Georg Klausand Manfred Buht (eds., Philosphisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974) p. 7800 ‘Marxism, Liberalism, and Feminism 4. “Human rights are necessary for the t mnsition from capitalism to socialism.” Georg Klaus and Manfred Bur (eds.), Philosophisches graphisches Institut (1974) p. 782 ism against Woerterbuch, Leipzig: VEB Bit 5. “Marx and Engels make what must be the mos virulent crit the theory of natural rights of the person. The Marxist doc particular the Communist Manifesto of 1847) absolutly and categorie {ects the notion of individual rights considered aslimitson state power. [Based on the clas stugsle which is the driving force of history, Marist doctrine asserts thatthe concept of individual rights marks the abstract power ofthe dominant clas on classes dominated ...collectivst regime only allows for Marxist authors, made available to citizens of means to achieve frcedom, “Leclereq, Claude Liberté Publigues.Leclereg, Claude Public Freedoms. Paris : LITEC (1994). Paris: LITEC (1994) P17. 6. Rivero, ean The Public Freedoms, Pars: PUF Themis (1974, P. 126 7. ‘Determinism not only does not presuppose fatalism, on the contrary it gives a basis for intelligent activity” LENIN, 1 WORKS 292 8. “The fascist ideologies are destructive and contemptuous of freedoms. Maraism in its... people's democracies ate giving way to modern freedoms which are of a different type from that of classical liberal democracies. * Collard, Claude-Atbert, Liberté Publigues. Colliard, Claude Alben, Public Freedoms Paris: Daoz, 1989. Paris: allo, 1989 P39, 9. “Civil rights are merely the rights ofthe bourgeoisie” Georg Klaus and Manfred Bubr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974) p. 780 10, “For Marxists, these freedoms are essentially ‘formal’ in the sense that they would be empty of any real substance, and therefore, pure form.” Vincesini, Jean Jacques Le Livre des Droits de 1 Homme. Vincesin, Jean Jacques Le Livre des Droits de Homme. Editions Robert Laffont (1988). Editions Robert Laffont (1985). P 186 11, Roehe, Jean: Apulia, André Public Freedoms: Editions Dalloz (1997). P. i 12, K. Marx 1844, La Question iuve, trad. Marx 1844, The Jewish Question, trad. M. Mr. Simon, é4. Simon, ed. bilingue Aubier, 1971, p. Bilingual ‘Aubier, 1971, p. 108, 13, Collard, Claude Albert, Public Freedoms. Paris: Dalloz, 1989, Pars: Dalloz, 1989. P. 39; Vincesini, Jean Jacques Le Livre des Droits de Homme. Vincesini, Jean Jacques Le Livre des Droits de Homme. Eaitions Robert Laffont (1985) Editions Robert Laffont (1985), . 188. 14, Roehe, Jean: Apulia, André Public Freedoms: Editions Dalloz (1997). P 26. 15. F Engels, Anti -Duhring, Paris, Ed. Engels, Anti-Dubring, Paris, Ed. Sociales, 1963 Trad Botigelli. p. Sociales, 1963 Trad Bottigeli, p. 146, 16, “In the dialectical perspective .[captaist] human rights represent an improvement over the previous period.” Rivero, Jean Les Libertés Publiques, Paris: PUF Themis (1974). Rivero, Jean The Public Freedoms, Paris: PUE Themis (1974). P-88, [12] “le marxisme considére la proprictéHuman Rights According to Marxism 41 privée des moyens de production comme la source de Falignation des hommes, et préconise done sa suppression afin de ibérer ceux 17. Ponter, Jean-Marie. LibertésPubliques Pari : Editions Hachette (1997) Public Freedoms Pari: Hachette Editions (1097), . 136 18, “the DoP {detatorship of the proletariat] wasto be a necessary rigorous, and rapid conquest of political power by the revolutionary forsee $0 a8 to prevent the fesoration of the old order. In this sense, i was tobe an exceptional, temporary phase, quasimilary in nature, needed to secure the complete defeat ofthe previous regime but aot in itself constitutive of the new socialist order. Second, the DoP was to involve Lenin's demand thatthe bourgeois state machinery be smashed.” Piers Bene, ‘Alan Hunt, LAW AND THE CONSTITUTION OF SOVIET SOCIETY: THE CASE OF COMRADE LENIN 22 Law & Soc'y Rev. $75,577 (1988) 19, The freedoms of 1789 are linked tothe capitalist regime, the freedoms of the rich. Roche, Jean; Apulia, André Publie Freedoms: Editions Dalloz (1999). P.26 20, “There is probably an clement of tuth inthe criticism by Soviet authors of the abstract nature of publie freedoms of traditional liberal ‘egimes."Coliard, Claude-Alber, Libertés Publigues. Collard, Claude ‘Alben, Pubic Freedoms. Pais: Daioz, 1989. Paris: Dalloz, 1989. . 37. 21, “In addition, Marsism i istorial materialism. lt believes that man and society are at every moment, rellection and product of history and of the dialectial movement behind i. In this perspective the existence of Permanent right, given once and forall, and removed the movement of history is obviously unacceptable. Like all he laws, ‘human Fights” are only a reflection of the eeonomie infrasteueture. The expression ofthe power of the ruling elas, and the means fr ito impose its domination the exploited clases." Rivero, Jean Les Libertés Publiques, Pars PUP ‘Themis (1974River, an The Public Freedoms, Paris: PUF Themis (197). PAT 22, “Marxism is materialism, Therefore, the existence ofa ‘human nature’, nscendent, abstract and metaphyseal, necessarily f refused. instar asitescapes any siete findings” Rivero, Jean Les Liberts Pubigues, Paris: PUF Themis (1978, Rivero, lean The Public Freedoms, Paris: PUP Themis (197), . 87-88 23, “rights and freedoms onst subject oa certain finality that definait the Timits... The freedom ofspeceh the press, meetings is guaranteed” 10 consolidate and develop the socialist regime." Rivero, Jean Les Livertés Publigues, Paris = UF Themis (1978, Rivero, Jean The Public Freedoms, Pars: PUF Themis (1974). P92. 24, “nthe Soviet freedoms can be exercised only within and serving the order imposed by the power” Rivero ean Les Libertés Publigues, Pais: PUF Themis (1974). Rivero, Jean The Public Fredoms, Paris: PUF Themis (1974). P93 25, “Tights and freedoms are” inseparable from the performance of duties oftizens. "Rivero, ean The Public Freedoms, Pats: PUF Themis (1974. P.922 ‘Marxism, Liberalism, and Feminism 26, The Marxist doctrine rejets the existence of individual rights considered as inviolable limits of state power over the individual. Doming & son tour par une conception communautaire [plut6t guindividualiste), te régime collectiviste rete la notion de droits de individu pour le plus grand incre de la masse toute entire," Collard, Claude-Alber, Lipertés Publigues. Collard, Claude Albert, Public Freedoms. Pars: Dato, 1989. Paris: Dalor, 1989. P. 36, 27, “in the USSR, “La constitution de 1977 (apts cell de 1936) exposait en son chapitre 7 les droits ct devois fondamentaux des citoyens “The constitution of 1977 (following that of 1936) outlined in its chapter 7 the fundamental rights and duties ofekizens Conformement aux thse marssts, ls droits économiques ct sociaux ‘venaient en premier lieu (droit au travail au repos, la sécurité sociale, instruction.) Tn accordance with Marxist theory, economic and social rights came in fist place (ight to work, rst, social security, education ) Puis venaient les inert intllectuclesliberts "expression, de reunion de manifestation, dassocation senfin, les libertés dela personne.” Then came the intellectual freedoms: freedom of expression, assembly demonstration, association and finally, freedoms of the individual Roche an: Pouille, André Liberts Publiques Editions Dalloz (1997. Roche Jean: Apulia, André Public Freedoms: Editions allo (1997).P.29 30. 28, “Thore are authoritarian democracies in which civil liberties are not guaranteed. .. The history of political institutions, their study in Comparative law show the existence ofthese various regimes. La premibre République francaise a constitué une expérience de democratic autortare qui a rspudi les libertés publigues.-The frst French Republic was an example of an authoritarian democracy that repudiated civil liveries (C'est une formule analogue que l'on retrouve 8 I'époque contemporaine dans Fexpérience de Léninest isa similar formula that can be found in contemporary times in the experience of Lenin La démocratie éninste, Sous sa forme premiere apparait comme Ia « dictature du proléta »Leninist Democracy. as it first appears as the “dictatorship of the proletariat. Il sagit d'une démocratie autortaie et anti-égaitare, Ibis fn authoritarian democracy and anti-egalitarian. Dans Lenine, il agit Id d'une forme transitoire, de durée d précisée, d'une phase intermédiaire nécessaire & Venfantement de la Véritable société communiste. In Lenin’s thought, this is transitional time indeed non-specified, an intermediate stage for the birth of true communist society. Et il 6rivait:« La dictature du prolétariat apporte tune série de restrictions a la lberté pour les oppresscurs, les exp ct les eapitalistes Ceusla, nous devons les opprimer afin de libérer VMhumanité de Vesclavage salar, il faut briser leur résistance parla force >» And he wrote: “The dictatorship of the proletariat makes a series of restrictions on the freedom of oppressors and exploiters capitalists Those,Human Rights According to Marxism a we have to oppress to free mankind from wage slavery, we must break theie resistance by force" Cute democrat auoritar est exclusive de liber, du moins de tibet immediate, mais elle se prétende le moyen et le seul moyen de la réalisation future d'une veritable liberté, la condition préalable de la ‘éatnation fore de Taber stelle ext pastiberé du moins a preface elle, est-elle une « libération >.” This authoritarian democracy is exclusive of freedom, less free immediatly, but it claims to be the rmedium and the only way to achieve a future of true freedom, « prerequisite for achieving future of freedom” Colhiard, Claude-Alber, Liberté Publiques. Collard, Claude Albert, Public Freedoms. Pars Dato, 1989. Paris: Dallo, 1989. P. 3940. 29. “To take the letter to the constitutions ofthe USSR in 1936 and 1937, Soviet cizens enjoy more guarantees than those who live in western <émocraties. The reality is quite different It show s larly tha in popular ‘democracies, the exercise of politcal rights such ar social rights has neither legal force nor real effectiveness.” Vincesin, lean Jacques Le Livee des Droits de Pomme. Vincesin, Jean Jacques Le Livre des Droits de Homme. Faitions Robert Laffot (1985) Editions Robert Laffont (1985). P. 201-202. 30, “The intellectual freedoms and the right of association wore directed Jmmediately set out « conformement aux inér8ts dos travailleurs et afia atfermie le régime socialite » In accordance with the interests of ‘workers and to strengthen the socialist regime’ Le monopole du parti communist était garanti” Roche, Jean: Powill, André Libertés Publique Editions Dalloz (1997)... The monopoly of the Communist Party was guaranteed “Roche, Jean; Apulia, André Public Freedoms: Editions Dalloz (1997). P. 29-30 S31. Vincesin, Jean Jacques Le Livre des Droits de Homme. Edit Latfon (1985). Editions Robert Lafont (1988). P. 202.4 SOCIALIST LEGALISM IN THE USSR: A FORMAL RULE OF LAW STATE? Introduction - Objectives of Marxism “In the absence of freedom of the press, all other freedoms are only mirages.” —Karl Marx! ‘The rule of law is a fundamental western concept. Marxism, in theory, opposes law, is antinomian, and seeks to create a peaceful, prosperous, communistic society by suppressing the state, In practice of course, the dictatorship of the proletariat became corrupted and restored capitalism and was violent in its suppression of capitalism, This chapter explores the development and deployment concept of socialist legalism, the Marxist equivalent to the procedural rule of law (Formeller Rechtstaat) in order to understand the Soviet experience from the Soviet perspective. It argues that the Stalin did not represent a radical break from Lenin and that Stalin’s abuses of law was intended to prepare the USSR for the coming world war. Marxist theory of law and the state was expressed in practice, with varying deviations, between 1917-1989 in Russia. ‘This paper looks at the relations between Marxist state theory and Soviet praxis in the USSR during the Lenin-Stalin era. It argues that the carly Soviet Union developed a variant of the rule of law state (Rechtstaat; Etat de Droit) that was formallySocialist Legalism in the USSR: A Formal Rule of Law. 45 rational, ie. internally coherent, We begin our inquiry with a theoretical overview from the time Lenin seized power at the head of the Bolsheviks in 1917. Fundamental Theoretical Perspective: Antinomianism According to Marxism, the law is nothing other than the means of exploitation by a dominant class over a dominated class, the instrument for the exploitation of man by man. Marx regarded the law as an ideology, an illusion, the image that supports exploitation. For Marx the state is the executive committee of the bourgeoisie? and serves to guaranty the extraction of surplus labor by exploitation of the workers. So Marx wants to abolish the state and its laws. There is a fundamental antinomianism inherent in Marxist legal theory.” This theory however met a problem in praxis. When the Soviets suddenly and unexpectedly came to power in Russia in 1917 they were met with a disturbing problem for which they were theoretically unprepared: what objectives should the dictatorship of the proletariat* pursue and how quickly? Because Marxism is antinomian and because the Soviet’s seizure of state power was unexpected “There is no doubt that in 1917, when the October Revolution took place, no coherent theory of socialist law had been drafted and was ready to replace the bourgeois law of that day."* Given this situation of theoretical unpreparedness for unexpected practical experience with power the revolutionaries were faced with a dilemma. They were confronted with the choice of either “no-law” ie. more violent anarchy which would lead them to being accused of irresponsibility and nihilism or of trying to adapt the bourgeois law to the socialist ends and be accused of revisionism, degeneracy, reformism or boot-licking. How to get around this problem? Marxist legal theory, though antinomian, is not without teleology. Marxist teleology would guide the revolutionaries in their practical efforts to implement the theory of Marxism- Leninism. Marxism seeks to transform the state, subordinate the state to society and ultimately get rid of the state in order6 ‘Marxism, Liberalism, and Feminism to end exploitation and war. This teleology allowed one to avoid capitalist restoration and anarchic nihilism To attain the end of the subordination of the state to society one must work methodically, as a materialist, from the ground up: the relations of production are the definitive source of exploitation. Consequently, the revolution sought first to transform the relations of production in order to eliminate exploitation. The conscious transformation of property and labor relations is a necessary first step to transforming the state, subordinating the state to society and ultimately getting rid of the state entirely as society evolves toward its final and highest stage of development, anarcho communism Thus, the state Marx would form would be fundamentally different from individualist liberal free market capitalism bourgeois democracy. Capitalist democracy, for Marx, was just one more in a series of lies, right next to religion and patriotism Thus: “The goal of the workers is above all not... to create a “free” State, In the German [second] Reich the ‘state’ is just as free as in Russia. Freedom consists of transforming the state from a body superior to society to a body subordinate to it “* (Marx). How did these laudable theoretical goals work out in real world practice? History Lenin: War Communism In practice, Marxists already had a lawless situation when they came to power. However it was the violent lawlessness of the Russian civil war (1917-1919); law broke down and the rule of force became the norm until the Tsarist imperialists were defeated. Although elements of resistance to Soviet power continued up until 1923, concerns of equality already manifested in practice and were at the centre of theoretical discussions well before then. In this period the concept of war communism was developed out of practical necessity and real world experience. War communism was basically forced expropriation and redistribution by the Red Army during the revolution. This was of course hardly legalism,’ just theSocialist Legalism in the USSR: A Formal Rule of Law. a opposite, it was chaotic and pragmatic, but hopefully not ‘opportunist. Given the chaotic situation, early soviet legislation was consequently very open textured. Hortatory proclamations declaring guidelines and objectives were the rule and such were also justified because the Soviets could not always in fact enforce their declarations. Hortatory proclamation and open texture were also justified by the fact that the goal was to seize state power to abolish state power by erasing class distinction, Thus, Marxist law of this era correctly sought not only to command but also to exhort® and educate” War communism was a time of warlike anarchy and legal uncertainty, an emergency situation. To get out of this situation of violent warlike anarchy and toward something more productive and less violent the Soviets devised the concept of revolutionary legality. Revolutionary legality was developed as a construct to manage the transition from revolution to peaceful governance, Both war communism and revolutionary communism were expressed in the constitution of 1918. Revolutionary legality, which replaced war communism, served as the foundation of for the New Economic Policy (NEP). The NEP was in turn the basis on which socialist legality. Revolutionary Legality: War communism was violent and unstable. To avoid injustice, corruption, and arbitrary violence the Workers’ Councils (Soviets) began to seek to base their power on more stable ground. So, on November 8, 1918 the decree on “revolutionary legality” was promulgated declaring that “legality should be raised up (or very strictly respected), in order to be the basis of the laws of the RSFSR”. Thereto, “Many have been accustomed to interpret ..in an open ended fashion" the overused word ‘legality’, saying that we tend thereby toward a bourgeois point of view when we talk about ‘tegality legality legality’. { think that [even] if during these four years the law did not have the importance which belongs to it [properly], currently it has an enormous importance for8 ‘Marxism, Liberalism, and Feminism Lenin wanted legislation to be general in character during the period of revolutionary legality because that was a transition stage in order to help form the consciousness of the masses, to teach them to learn how to read, how to participate in political discourse and how to grow as individuals in society.” Revolutionary legality was justified as a transition stage by the fact that the revolution could not achieve all of its objectives at once and required creative participation by the masses. So, the revolution would make occasional and temporary concessions to other classes"* - the NEP would be one example of that. The constitution of 1918 was developed on the basis of this declaration on revolutionary legality. The Constitution of 1918: The practical objectives of the constitu tion of 1918, seeking to implement Marx's theory, were to: “remove any exploitation of man by man, to abolish the division of society into classes, to crush without mercy all exploiters, to realize the socialist organization of society and to ensure the triumph of Socialism in all countries” " and also “to assure workers the true freedom of conscience, of expression, of assembly, of association”."* Revolutionary legality, conceptually close to black letter law with a socialist teleology, was promulgated in the following passage of the constitution of 1918: “The oversight by the superior level of the strict enforcement of laws by all police stations of the people and the institutions that are subordinate thereto, and by public officials and citizens of the USSR rests with the Prosecutor of the USSR”.” ‘That is, the state prosecutor would hold the police and people alike liable for violation of the strict letter of the law. Double Subordination'®: The importance of the idea of legality to the Soviets can be shown by Lenin’s refusal to create a “state within a state” by double-subordination, To consolidate the new regime, Lenin was advised to subject the courts to two levels of control. This idea was rejected by Lenin, because he saw local authorities as “one of the principle, if not the principle, adversaries to the establishment of a civilized legality”.Socialist Legalism in the USSR: A Formal Rule of Law. o The New Economic Policy (NEP) and the Introduction of Socialist Legality: The ability of the bourgeois powers to crush revolutionary movements (notably in Germany) led to an understanding that the USSR would be, at least in the short- term, relatively isolated. Thus, the regime sought both to regularize international relations and deepen the internal development of economic and political socialism.” The idea of socialist legality begin to appear in this period and marks the transition from Leninism to Stalinism Stalin ‘The Stalin era is much more problematic than the Lenin era First, there is a tendency to deify Lenin, who died before having the chance to govern Russia and so has an aura of infallibility and romantic nostalgia, Second, there is a tendency to vilify Stalin, to look at Stalin out of context, as if Stalin did not come to power over a nation ruined by one world war and forced to prepare for another whilst trying to industrialize and end the famines so common during Tsarist Russia” whilst simultaneously teaching the illiterate majority how to read. Stalin ended famine and illiteracy* in the USSR, doubling the average life expectancy despite a genocidal fascist invasion that killed 20 million Soviet citizens. Simply put, people overrate Lenin and sell Stalin short, Tsarism ran Russia into the ground. As bad as he was, Stalin built Russia up. Doctrine: Because Stalin was in fact a continuation of Leninism there was not in fact much variation in legal theory or in practice between the regimes of Lenin and Stalin. This may be because Lenin died before being in a position to govern peacetime Russia. In any event, people who try to cither sanctify Lenin or vilify Stalin are not being objective and ooking at the facts dispassionately. NEP and socialist legalism were clear outgrowths of revolutionary legality, itself growing from war communism. One sees a pattern of continuity from Lenin to Stalin, not one of sudden radical transformation.” During the Stalin era the objectives, both economic and political, remained the same as during the Lenin era construction of socialism in order to abolish the state. Thus,2 ‘Marxism, Liberalism, and Feminism the state continued to observe and even strengthen a strict legality, but interpretations and applications of legality were still guided by and toward the objective of building socialism in one country. Stalin did make one major change from Lenin's course by concentrating on internal rather than external affairs and implementing “socialism in one country”;given the failure of the German and Hungarian communist revolutionary movements in the immediate post war years Stalin had little or no choice but {o build socialism in one country since no anticipated or hoped for global revolution in fact occurred despite the successful example of the Soviets. Dynamics of Literacy 1897-1979: Population Aged 9-49, in Peres Population 1879 19201926 19391959 19701979 Rural MASS S24 O72 916 991 996 99.6 F 2S 252 354 768 975 All 238 378 306 840 982 Urban M661 80.7 880 97.1 995 F457 667 739 907 981 Al 570735 809 938 987 Total M 03 S76 71S 985 993 F 166 323-27 816 978 All_284 441366874 985 Source: Narodnoe obrazovanie, nauk i kultura v SSSR: Sta shornik (Moscow, 1977, 9: SSSR: zarubezbaye strany, 1987: ‘Statisticheskilsbornik (Moscow, 1988), 83 The Prosecutor General A. Ja. Vychinsky expressed this idea of equality thusly: “The Stalinist constitution guarantees the observance of the unity of Soviet Socialist legality throughout the entire territory of the USSR.” The Constitution of 1936 introduced the concept of “socialist legality” into the law in Article 113, replacing thereby the former term “revolutionary legality”. Thus, “the teleological elements of the definitions are found in the line of authority instituted! ‘method of realisation of the dictatorship of the proletariat’, ‘principle of activity of the Soviet State.’ The technical elements [i.e. black letter] of the definitions are also in perfect correspondence with practice: ‘unconditional respect’ and “unconditional execution’ of legal acts." Black letter law”Socialist Legalism in the USSR: A Formal Rule of Law. 3 would rule daily life contextualized by the goal of socialist construction The Law and Antinomianism:The basic problem facing Soviet law is the fact that the teleology is one of the dissolution of the state into society. Antinomianism haunts and directs yet also undermines the concept of the rule of law in the Soviet system ‘Thus, for example “the principle of legality is not imposed on the governors (...) it ean never be opposed to them. To admit the contrary solution would be to recognize the author above the rulers, of constitutional or moral principles and recognize in that way a concept of natural law that completely rejects the Soviet theory”. Thus the rule of law would apply with the strict legalism over the masses, outside of the party, but within the party it would not, During the Stalin era this ‘meant the constant risk of being purged, with the possibility of exile to Siberia or even execution. During and after the Khruschev era it permitted the corruption of the communist party itself as the nomenklatura transformed into a bourgeoisie, communist in name but capitalist in action ultimately voluntarily restoring capitalism in 1989 and transforming into the oligarchs of today. Was the breakdown of the rule of law within the party the ultimate cause of the demise of the USSR? Was Marx completely wrong to have argued for a temporary proletarian dictatorship ~ which mutated from its intention as a very temporary stage” into a permanent reality? Was it a mistake to use state power to oppose state power? These speculative problems recur and must recur due to antinomianism. For example: “the principle of [socialist] legality means that citizens and government should strictly abide by the Soviet laws”. But which functions are governmental and which functions are administrative in a system that enshrines the unity of state power? How could one distinguish “administrative” from “legislative™® in a system with no separation of powers?" Purges: “The accused, while serving a sentence in a labor camp, ‘had committed ‘bandit assault" with a knife upon two men, seriously injuring one and killing the other. The Judicial Collegium for Criminal Cases of the Supreme Court of the R.S.RS.R. rendered a2 ‘Marxism, Liberalism, and Feminism verdict of guilty under Art. 137 of the Criminal Code, which prescribes deprivation of liberty for eight years in cases of intentional homicide. This decision was reversed by the Judicial Collegium for Criminal Cases of the Supreme Court of the U.S.S.R., which stated that the accused was a recidivist and a ‘declassed element’, that his crime was committed in a government labor camp, that it was part ofa brawl in which several others were involved, —and that therefore, by analogy, Art, 59(3) of the Criminal Code should be applied, under. which the death sentence is prescribed for persons who organize or take part in armed bands which commit acts of violence and ‘banditry’ against the administrative order. This decision was in tun reversed by the Plenum of the Supreme Court of the U.S.S.R., on the ground that the act committed was directly provided for in the Criminal Code under Art. 137, and that therefore the doctrine of analogy is not applicable." ‘The most intense criticisms of Stalin are for his purges of the communist party." Stalin ruthlessly and brutally expelled, imprisoned and killed many people in order to prevent the restoration of capitalism and to prepare the USSR for the coming war with Nazi Germany. When the Nazi armies rolled into Russia there was no fifth column to greet them, to give them supplies, intelligence or recruits. All the fascists in Russia were dead or in Siberian prison camps. Unlike France, which tolerated its fascists and collapsed quickly, Soviet Russia resisted Nazi aggression and genocide resolutely and ferociously. Yes, Stalin was brutal, and with very good reason, His brutality was directed at preventing capitalist restoration and preparing for the coming world war. How did the purges of communists from the Communist Party play out before the questions of Socialist legality? The “physical elimination of Jurists (EB Pasukanis, NV Krylenko) favourable (0 @ volontarist conception of the State and of law or hostile to the judicial technique of A. Ja. Vychinsky, who became the Prosecutor General of the USSR in 1936, could suggest an eclipse of socialist legality in the Soviet doctrine. But on the other hand, some jurists were trying to deepen the concept without confronting the philosophical legal concepts with the sociologico-political reality.” But ignoring facts inSocialist Legalism in the USSR: A Formal Rule of Law. 33 favor of theory is epistemological idealism, not materialism My hypothesis, which I think is the better view, is that socialist legalism held for the masses but broke down within the party due to the threats posed by fascist spies and provocateurs and corruption S.A. Golunsky and M.S. Strogovitch argue that it was not a.case of legality outside the party and politics within the party. ‘They argue instead that socialist legality meant that both the people and the party would be governed by the rule of law contextualized teleologically by the objective of the construction of socialism." In Western capitalist terms it is empirico positivism in rule application coupled with teleology in rule interpreting but stained by intense sub-currents of espionage, provocation, paranoia and distrust in law creation (legislation). Note here too the lack of separation of powers* limited the development of socialist legality since tasks and responsibilities were ill defined unless hierarchically commanded due to an absent functionalism which would otherwise have provided structure and thus certainty, a: the market capitalist economies. This can be seen in that “Socialist legality is the method to make effective the dictatorship of the proletariat and the construction of socialism, it is expressed by ensuring that all organs of the Soviet State, its agents and all citizens strictly observe without deviation legislation enacted by the Soviet authority”.” Golunsky and Strogovitch put citizens and authorities vested with the power to govern on the same level as subjects, of law, but when they add: ‘socialist legality is also always the means of action of the socialist state and cannot become an obstacle to the achievement of its historical tasks’ they create the possibility for unequal treatment of the subjects of law They know, moreover, that this potential is reality.”* Thus, Wwe see a strict internal legality to develop socialism and the disappearance of the law.” This strict legality applied outside ofthe party and was coupled with necessary but overly violent purges within the party. Not a reign of random terror, but a reign of systematic and directed terror during both the Lenin®: and Stalin eras. Of course some of the wrong people were killed and imprisoned thereby but most of the right ones were as4 ‘Marxism, Liberalism, and Feminism well. However, would you prefer fascism to have won the Second World War? Unlike Hitler, who also purged his S.A., Stalin never committed genocide, not against Ukrainians, not even against the German Mennonite ethnic minority living well within the USSR (Velgadeutsche). Yes, Stalin deported Volga Germans and Baltic Germans to Siberia. Of course, some of the German Mennonites died in Siberia of illness, or hunger However, such deaths were never intentional, certainly not part of an intentional extermination program or even malign neglect, Ought Stalin have left the Volgadeutsche and Balideursche in Russia to serve as spies and saboteurs for the invading Nazi armies? ‘Of course, all these acts undermine the socialist legalism thesis, However, we do not see lip service to the rule of law coupled with subterfuges to get around it in Soviet Russia as wwe can see during the National Socialist era in Germany. It was a rule of law conditioned by fear and poverty and a willingness to try whatever was needed to end the constant famines, wars, oppression and exploitation of the Tsarist era as well as to prepare for the oncoming fascist invasion. Fundamental Rights: The real rights guaranteed by the constitution of 1936 were at least as extensive as under the constitution of 1918. They were in fact more liberal regarding property ownership as part of the plan to develop the USSR economically. *As to freedom of expression: “In conformity with the interests of workers and to strengthen and develop the socialist regime, the law guarantees citizens freedom of speech of the press, of assembly, of meetings, and street demonstrations” *As to private property: “The right of citizens to personal property, income and savings from their work, their residential house and the domestic auxiliary market, of household objects and objects of daily use and use of personal convenience, as well as the right to inherit personal property from citizens are protected by the law". Yet that does not change the idea of a centralized economic means to ensure the well-being, Thus, “Economic life .. is determined and directed by the state.”Socialist Legalism in the USSR: A Formal Rule of Law. 35 Scope of Constitutional Guarantees: Like any legal system, fundamental rights and freedoms under the Soviet regime were not absolute but contextualized by other values." One could not exercise their freedoms to the detriment of the state or others. The limitations of freedoms were justified as being in the interest of workers and to consolidate the socialist regime. In the end of course freedom of opinion became defined as the free dissemination of opinions, ideas and opinions of the vanguard party, ie. the CPSU. This is an internally consistent ule system, if you accept the values of that system, and in that sense is a formal (procedural) rule of law state, at least up to the 1930s. ‘The abstract concept “freedom” under the Soviet regime was contextualized in and concretised by Marxist doctrine. Freedom would be the freedom to see the necessity and inevitability of the triumph of Marxism, to see that one is conditioned by the mode of production. Not an absolute abstract idealized concept but a concretized structured reality, So, all the rights and freedoms under the Soviet constitution were conceptualized as conditioned by and toward the terms of Marxist doctrine, seeking to abolish the state and to transform relations of production, to build the new Soviet man. Seeing that helps us better understand the excesses of the pre- war Stalin era — excesses which did not continue after the war ended ‘Theory: Socialist Legality in Comparison with the Rule of Law State Substantive Rule of Law State (Materieller Rechtstaat) ‘The state models of the XIXth and XXth century are defined, in a the Weberian sense, as being rationalized, i.e. ope-rational ‘Thus the phrases “rule of law”,** (pravovod gosudarstvoy” and “socialist legality” (sotsialistitcheskaia zakonnost) were developed to describe these models. The source of the rule of Jaw state is jus naturalis ~ the idea, that natural reason can determine the good and lawful, what is right and what are rights, in short the law of reason - Vernunfrecht. Thus,6 ‘Marxism, Liberalism, and Feminism epistemological realism (formatism) is associated with the liberal individualist rule of law state. That isa liberal capitalist (bourgeois) vision and is in fact inconsistent with Marxist Materialism (ontological monism). The USSR did not seek to build a rule of law state because: “The liberal rule of law state depends on a strict separation between the public sphere and the private sphere, ie. the people and State. The private sphere is organized by market forces and free competition, itis self-regulating and free of relations of domination, In its legal aspect, this requires fundamental rights to demarcate the borders of the private and autonomous sphere, as well as the submission of the State to its laws, The laws of the State must — as the laws of the market economy in general — be general and abstract in nature; only such laws can meet the demands of equality and predictability established by free economic competition."* This model was inappropriate for the goals of Marxis “The Rechisstaat is a mirage, but a very useful mirage for the bourgeoisie because it replaces the disappearing religious ideology. It hides from the masses the fact of the rule of the bourgeoisie, The ideology of the Rechtsstaat is also more useful than religious ideology because, not reflecting the totality of objective reality, it nevertheless depends on it. Authority as ‘the general will’, as ‘the authority of law’, is realized in bourgeois society to the extent thatthe latter is ¢ market, From this point of view even a police statute may appear to us as embodying Kant's ideas on a freedom which is limited by the freedom of another." Instead, the USSR built a system of socialist legalism, similar to the procedural rule of law state (Formeller Rechtstaat) but intended not to hide reality but to expose and transform it. The Procedural Rule of Law State (Formeller Rechtstaat) Epistemological realism (idealism, also known as formalism) is at the root of the Substantive Rule of Law State (materieller Rechtstaat), Formalism (dualism) was rejected by the USSR due to Marxist theory (materialism) and economic and politicalSocialist Legalism in the USSR: A Formal Rule of Law. 7 realities both of which contradict epistemological dual (formalism). The material rule of law state, with substant guaranties of rights, is better adapted to the emerging realities of capitalism (the exploitation of workers and the need for more mobile social relationships). So, rather than the ideal’ Rechtstaat, the USSR constructed a variant of the formal rule of law state (formeller Rechtstaat) ~ socialist legality. Socialist Legality® ~ A Procedural Rule of Law State Law? (Formeller Rechtstaat) Socialist legality is not a formal rule of law state but is similar thereto. Namely, socialist legalism is guided by a different teleology. The teleology of the rule of law state is free market capitalism and individualism. The teleology of the nominally communist states was the suppression of domination and the state itself, peace and prosperity, and at least the first wave of revolutionaries were sincere about those goals, So, although the idea of socialist legality seems like a variation of the formeller Rechtstaat, itis not, because it maintains the teleological vision of the eventual disappearance of the state and the socialization of the means of production that determines the legality and is the social objective. A comparison of socialist legality and the formeller Rechtstaat is interesting precisely because they are not the same but are similar. An examination of socialist legality reveals that outside the party political sphere the idea of legality was basically respected in the Soviet regime, particularly before 1930 and after 1945. The similarity between the formeller Rechtstaat and socialist legality can be found in the: “principle of strict and exact observation and exercise of the constitution, the laws, and the other acts of all organs of the state, functionaries, the social organisation and the citizen." ‘Thus one can conclude that: “When we look at the history and practice of socialist, legality, especially under the Stalin period or the cult of personality, we can find similarities between socialist legality [a legalism, ie. positivism following the black letter law to the letter] and the formal rule of law [state]. The similarity, first of8 ‘Marxism, Liberalism, and Feminism all, can be found in that the protection of fundamental rights and freedoms was not the direct objective [of the formal rule of law state or of socialist legalism]. Its origin was the doctrine ‘of non-contradiction between state and individual and real leadership by the party. So, in the second place, (wo principles [the formal rule of law state or of socialist legalism] were largely intended for the administrative, not the legislature. That is, in the process of creation and application of law, their method, form or procedure has become the essential component of these Principles." Conclusion Although the USSR did not attain the status of @ substantive rule of law (materialler Rechistaat) during the Lenin-Stalin era, aside from the massive purges and dislocations caused by the two bloodiest wars in human history, the formal rule of law (ormeller Rechtstaat) was basically observed under the doctrine of “socialist legality”. This may seem counterintuitive to American eyes but it is crucial here to understand that the formal rule of law state is merely legalism ~ following the letter ofthe law ~ itis an adherence to the black letter law even when that is pedantic and dogmatic. While teleological approaches were possible and undertaken, a substantive rule of law state was not really possible because the objective was the dissolution of the state, not the creation of a stable state with efficient laws that would generate quick clean and certain transactions and also due to the lack of economic development. Politically, Stalin faced the problem of dissension and potential treason from within and a Nazi juggernaut poised on the borders wanting nothing other than to exterminate slavs and seize lands for an insane, megalomaniacal and unattainable fascist vision. In terms of legal doctrine this expressed itself, ‘on the one hand, as the idea that socialist legalism represented a spearhead for capitalist restoration from within via an ever ‘greater expansion of the quasi capitalist New Economic Policy and on the other, that socialist legalism did not represent enough legal certainty and justice to effectively steer the USSR toward the goals of establishing socialism and moving towardSocialist Legalism in the USSR: A Formal Rule of Law. 2 4 communist anarchy in which the state would wither away. ‘The curious and defensible doctrinal maneuvers — from war communism, double subordination, and NEP to socialist legalism — were not mere propaganda to whitewash Stalinist brutality. Whitewashed brutality has no deterrent effect; similar legal doctrinal maneuvers parallel similar problems in market capitalist societies.** However, the legal doctrinal maneuvers were one of the battlefields on which Stalinism played out as a continuation of Leninism. Lenin was violent 100, Misreadings of Stalin regularly distort western histories of the USSR era. It is unjust to equate Stalin to Hitler. Hitler committed genocidal wars of agression. Stalin ended illiteracy, famine and doubled the average life expectancy in the USSR despite the Nazi invasion. Stalin’s brutality was necessary and enabled the USSR to survive the Nazi invasion. Had the USSR capitulated as did France Hitler would have won the Second World War and fascism would rule Eurasia to this day ~ with deleterious consequences for most of the world, Footnotes 1. Karl Mars, On Freedom of the Press, Ch. 6.. available at: http: / www marsists.org/ archive! marw/ works! 1842/free-prest/chOl.htm s Marie Nadine, LeDroit Rérouvé, Essai sur les droits de homme en URSS, UF, Paris, 1989. page 48. 2. Karl Marx, Manifesto of the Communist Party (1848). 3. “The withering away of the categories of bourgeois law (exactly the categories, and not this or that particular rule) can under no circumstances mean their replacement by some new categories of proletarian law.” PASHUKANIS, GENERAL THEORY OF LAW AND MARXISM 104 (34 ed. 1927) 4. “The socialist revolution, therefore, was to differ from all previous revolutions in the principled importance it attached to the future. In this sense the DoP [dictatorship of the proletariat] was less negative and vercive than active and educative in its quest for communism.” Piers Beirne, Alan Hunt, LAW AND THE CONSTITUTION OF SOVIET SOCIETY: THE CASE OF COMRADE LENIN 22 Law & Soc’y Rev. 375 (1988), 5. “La légalité socialste tle développement de la préoccupation juridique en Union Soviétique.” Pierre Lavigne Revue d Btudes Comparatives Es ‘Ouest September, (1980) Volume I, no. 3. Page 510, 1. ir ‘Marxism, Liberalism, and Feminism Marx, Critique du Programme de Gotha, p. 33 “the opening stage in the development of Sovict socialist law was primarily characterized by the fact that laws and other instruments often {ook the form of declaratory statements of principle by reason of the essentially general nature of the norms they contained.” Csaba Varga, “Lenin and the Law” Comparative Legal Cultures Aldershot Danmouth 1992. p. 516. "The main features typical of revolutionary legislation are its very general nature... the laws and statutory instruments frequently take the form of an appeal ora proclamation or a declaratory character ora statement of principle, the wording of the clauses, whieh is clea, fuid and diet, and the often almost total liberty of structure, o be noted in particular in the lack of separation between the “whereas” clauses and the legal provisions. In general, such legislation has the character ofan instrument of revolutionary propaganda designed to stimulate and educate, party because ofthe language and structure adopted for the norms: in other words - to quote an expression of Lenin's -it suffers from the “formal imperfections’ which characterize the sort of norms which searcely meet the requirements of professional jurists.” Csaba Varga, “Lenin and the Law” Comparative Legal Cultures Aldershot Dartmouth 1992. p.516 “We transformed the court from an instrument of exploitation into an instrument of education” (Lenin, “Third All-Russia Congress of Soviets of Workers’, Soldiers’ and Peasants’ Deputies.” LCW, Vol. 26, (1918), pp. 453-482, 468) Lenin, Pravda, 10 August, 1919. “For Lenin, the general character of the laws and regulations was not an 1d hoe necessity but derived from a conscious revolutionary programme ‘adapted to suit the peculiarities of Russia, and this he explained at the same mecting as follows: ‘The local Soviets can, as time and place demand, extend and supplement the basic principles established by the government™ Csaba Varga, "Lenin and the Law” Comparative Legal Cultures Aldershot Danmouth 1992, p. 517, MLL. Kalinin, "On Socialist Legality”, levestia, 1989 p. 56. “Lenin's theory of the need for legislation to be General in character was intended to be applicable only during a transition stage, and carried with it the requirement that the subsequent legislation, based on an appraisal of past experience and making provision for specific matters, should be more directly dependent on the practical results achieved and fon the political, social and technical experience acquired in the course of the enforcement of existent law ina ereative manner.” Csaba Varea, “Lenin and the Law” Comparative Legal Cultures Aldershot Dartmouth 1992. p. 519 “revolutionary legislation must necessarily bear a special character distinct from that ofthe subsequent legislation ofthe more stable period after the final achievement of power, which will have the advantage of Permanent structures, traditions of its own and a certain amount of practical experience. The difference is particularly real in the ease ofSocialist Legalism in the USSR: A Formal Rule of Law. 6 revolutions ofa socialist character, since the aim ofthese is the creation of a socio-economic order which is qualitatively new” Csaba Varga, “Lenin and the Law” Comparative Legal Cultures Aldershot Dartmouth 1902. p. S16, 15, Division I, Chapitee Il Constitution Sovigtique de 10 Juillet 1918, 16, Article 13-16 Constitution Sovitique de 10 hulle 1918, 17, “La tggalité socialise tle développement de la préoceupation juridique en Union Soviétique.” Pierre Lavigne, Revue d'Etudes Comparaives Est- ‘Ouest September, (1980) Volume II, no. 3. Page 5. 18, All courts were abolished via First Decree on Courts, Nov. 24, 1917 (COLL. LAWS, 1917, No. 4, Art 50) As a result a dual system of local courts and revolutionary tribunals; central and local organizations spontaneously assume functions of local courts. KRYLENKO, THE JUDICIARY OF THE RSFSR, 322 (1923) 19. Lavigne a7. 20, “Socialism is not the outcome of decrees handed down from above. Live, creative socialism is the work of the Popular masses themselves” (Lenin). Csaba Varga, “Lenin and the Law” Comparative Legal Cultures ‘Aldershot Dartmouth 1992. p. 517 21. By lef Coplon, tn Search ofaSOVIET HOLOCAUST:A 55-Yeur-Old Famine Feds the Right, Village Voice (New York City) January 12,1988. Available at: hulp www.ehss:montelairedu/ english fare! vv.html 22, Boris N. Mironov, The Development of Literacy in Russia and the USSR from the Tenth to the Twentieth Centuries. History of Education Quarterly, Vol. 31, No. 2 (Summer, 1991), pp. 220-282, 43, 23, Source: John F. Kantner, ‘Basie Demographic Comparisons Between the USSR and the United States,” (1959)...paper submitted to the ‘Subcommittee on Economic Statistics ofthe Joint Economie Committee, Eighty-sixth Congress, First Session, Washington, DC. in Alex Inkeles & Kent Geiger, eds. Sover Society: A Boat of Readings (Boston: Houghton Mitftin Co., 1961), p18. ‘When after the Second Congress, Lenin's opponents had conducted a struggle against "bureaucratic formalism,’ they constructed their argument on a deeper and, it seemed, more Marxist understanding of the course of historical development. Lenin, of course, did not think of concealing the fact that his organisational plan had a more definite politcal significance: to protect the Party from opportunism. Wis impossible to read this passage as anything else but an endorsement of Stalin, who was, by implication, continuing the course charted by Lenin, against Trotsky the ‘opportunist’ who was making allegedly {groundless accusations of bureatcratism.” Michael Head, The Rise and Fall of a Soviet lurist: Evgeny Pashukanis and Stalinism, 17 Can. JL. & Juris. 269 (2008), 25, Lavigne I 26. The Law of Nov. 30, 1918 “On the People’s Courts” (COLL. LAWS, RSFSR, 1918, No. 85, Art. 889), Art. 22, People’s Judges must decide fon written law; lacunes to be covered via “revolutionary legal2, 30. a1 3 33 38. 38. ‘Marxism, Liberalism, and Feminism conscience”) ‘the class struggle necessarily leads to the dictatorship of the proletariat] 3. that this dictatorship itself constitutes no more than @ {ransition to the abolition ofall classes and to a classless society.” Karl Marx, Mars-Engels Correspondence 1852, "Mars to Joseph Weydemeyer In New York". Source: MECW Volume 39, p. 58: Fitst published: in full in Jungsorialistische Blatter, 1930. London, § Mareh 1852, 28 Dean Street, Soho. Available at: http:// www.marxists.org/ archive/ marx! works! 1852/leters/ 52_03_05.him#nl ‘the DoP [dictatorship ofthe proletariat] was to bea necessary, rigorous, and rapid conquest of political power by the revolutionary forces so as to prevent the restoration ofthe old order. In this sense, it was to be an exceptional, emporary phase, quasimilitary in nature, needed to secure the complete defeat ofthe previous regime but notin itself constitutive of the new socialist order. Second, the DoP was to involve Lenin's ‘demand that the bourgeois state machinery be smashed.” Piers Beirne, ‘Alan Huat, LAW AND THE CONSTITUTION OF SOVIET SOCIETY: ‘THE CASE OF COMRADE LENIN 22 Law & Soc'y Rev. 575, 377 (1988). La Legalite Socialist tla Développement de Ia Préaccupation juridique cn Union Sovictique. Pierre Lavigne Revue d'Etudes Comparatves Est ‘Ouest September, (1980) Volume 11, no, 3 pp. 3 20. “The Commune wasto bea working, nota parliamentary body, executive and legislative atthe same time” (Mars, “The Civil War in France,” in Karl Marx and Frederick Engels: Selected Works, Vol. 2. Moscow: Progress Publishers, Capital, 3 Vols. New York: International Publishers 1871 {1969} p. 220), 2 SOVIET JUSTICE 43-4 (1940) ‘But see: Harold J. Berman, PRINCIPLES OF SOVIET CRIMINAL LAW, 56 Yale LJ. 803 (1947), La Légalité Socialist et la Développement dela Préoceupation luridique en Union Sovictigue. Pierre Lavigne Revue d'Etudes Comparatives Est ‘Ouest September, (1980) Volume 11, no, 3 pp. 5 20 See generally, A-K. R. Kiralfy. The Campaign for Leg: R.,6 Int & Comp. L.Q. (1957), pp. 625-682 Constitution of the USSR, 1936 Arts, 35,59, 67, 81,91 {La Legalite Socialist tla Développement de la Préaceupation juridique tn Union Sovistique. Pierre Lavigne Revue d'Etudes Comparatives Est Ouest September, (1980) Volume II, no. 3 pp. $8 20. La Légalité Socialist et la Développement dela Préoccupation juridique en Union Sovietique. Pierre Lavigne Revue d'Etudes Comparatives Est Ouest September, (1980) Volume 11, no. 3 pp. $8.20. Re: Withering of the state ce, ENGELS, ANTI-DUEHRING 308 (Eng. .d. 1934). Cf, LENIN, STATE AND REVOLUTION (24 ed. 1918) "the courts should not do away with terror—to promise that would be to deceive ourselves and others—but should give it foundation and legality, clearly, honestly, without embellishments.” Lenin, Letter to ty in the U.S.S.Socialist Legalism in the USSR: A Formal Rule of Law. a Kurskii, People’s Commissar of Justice, regarding the drafting of the Criminal Code of 1922. 27 LENIN, COLLECTED WORKS 296 (3d ed. 1932) (in Russian); ef KRYLENKO, LENIN ON COURTS 111 (1927) 40. Resolution of Council of People's Commissars of Sept. 5, 1918 (COLL. LAWS, RSFSR, 1917-1918, No, 710), “On the Red Terror”, Enemies of the state to be imprisoned: if necessary, shot. See also "Red Terrorism” in Investia, Sept. 5, 1918, 41, Art 9 See XII Constitution de 1936, 42 Section 10, Constitution de 1936, 43. Section 11, Constitution de 1936 ‘44, Engels wrote: Freedom does not consist in an imaginary independence of the laws of nature, but in the recognition of these laws and in the possibility therefore of planfully using them for definite purposes. This is true both ofthe laws of external nature and of those which regulate the physical and spiritual life of man himself—of the two categories of laws which we may separate from each other, surely, only in idea but not in actuality ... Freedom consists in the mastery of oneself and of external nature, based on the recognition of natural necessity.» The Tiest people who emerged from the animal kingdom were as untee in all essentials as the animals themselves; but each step forward on the ‘way to culture was a step towards freedom.” MARX AND ENGELS, 14 WORKS 114 45. °A generally accepted definition of the rule of law is that in order 10 protect the rights and freedoms of the people, the state power should be exercised under the objective law which is based on the will of the people.” The “Rule of Law” State Notion in the USSR and the astern Europe Kazuo Hatanaka, Ritsumeikan Law Review Page 1 46. This term only appeared after 1989. 447, “the liberal Rechtstawt relies on a strict separation Between the private sphere and the sphere of public power, ie. the state. The private sphere is organized by market forces and free competition: it isa self-regulating and freed from relations of domination. In juridical respect, this requires fundamental rights marking the boundaries of the sphere of private autonomy, as well as the binding of state power to law. The laws of the Sate must = like the economic laws of the market place ~be general and abstract in character; only such laws can meet the demands for equality land predictability established by free economic competition.” "Four Models of the Revitstait” Kaarlo Tuori page 3. 48. Evgeny Pashukanis, The General Theory of Law and Marxism, CHAPTER V Law and the State, valle a ‘hup:// www.manxistsorg/ archive! pashukanis/ 1924/ law/ ch0S htm 49. “positivist theory of state law..the state was no more identified with the people as an ethical and spiritual organism: now the state was defined a. corporate willajuristie person comparable to the subjects of private law."Tbid. 50, “the idea of extrapositive law, independant of the stat was abandoned.a ‘Marxism, Liberalism, and Feminism Like the early constitutionalist conception of the Rechistaat. the late consttutionalist theory also presupposed the state to be bound by law. However as the law was no longer an order independant ofthe state but ‘was equated with norms issued by the state itself, it could not any more “unlike in the early constitutionalist theory - be raised above the state ‘The relationship between law and the state was reversed. Now the state determined the law. At the same time there emerged a new theoretical problem: ifthe law was ereated by the state, how could the state itself be bound by its own creation?” Ibid, 33 51. “the concept of socialist legality originally included the observance of the law and other legal norm by the people as its essential component’ The “Rule of Law” State Notion in the USSR and the Eastern Europe Kazuo Hatanaka, Ritsumeikan Law Review Page 7 52, “a principal of striet observance and exact exercise of constitution, laws, and other acts by all state organ, public servants, social organization land citizen”. The “Rule of Law” State Notion inthe USSR and the Eastern Europe Kazuo Hatanaka, Ritsumeikan Law Review Page 45. 53, The "Rule of Law” State Notion in the USSR and the Eastern Europe Kazuo Hatanaka. Ritsumeikan Law Review Page 5. ‘54, “The withering of certain categories of bourgeois law (the categories as such, not this or that precept) in no way implies their replacement by new categories of proletarian law, just as the withering away of the categories of value, capital, profit and so forth in the transition to fully- developed socialism will not mean the emergence of new proletarian categories of value, capital and so on. The withering away of the categories of bourgeois law will, under these conditions, mean the withering away of law altogether, that isto say the disappearance of the juridical factor from social relations.” Pashukanis,Law and Marxism. A General Theory, trans. Barbara Einhorn (London: Inks Links, 1978). p. 61 55. The “Rule of Law” State Notion in the USSR and the East Kazuo Hatanaka. Ritsumeikan Law Review Page 5 » Europe5 LAW AND LITERATURE IN EMILE. “All peoples who had morality respected women. See Sparta, see the Germans, see Rome" Introduction The Law and Literature movement proposes that legal interpretation can be improved by borrowing methods from literary interpretation, by seeing legal decisions as stories, and by examining literature from a legal perspective. In Emile Rousseau presents us his Bildungsroman and educative novella about a Model Couple, Emile (the hypostasized Rousseau) and Sophie (the wise, sturdy farm girl), Rousseau recounts several stories in Emile, about false rape claims, faithless partners, women who try to be men and fail and in all a serics of stories set around the theme of super-responsibility of women to be in the end: baby factories, to make soldiers for the state. Without intending to, Rousseau is comedic in presenting images of women that by today’s standards are pathetically laughable. And yet these images of women influenced legislation and judgements because narrative gives scripts and roles to people to recreate in real life. Only by consciously exposing and deconstructing these roles and scripts would it be possible to live out something other than these pre-scripted, artificial and limiting roles. The school of law and literature seeks to examine law from the perspective of literary analysis.6 ‘Marxism, Liberalism, and Feminism It proposes that court cases are a form of literature and can be studied with literary tools. It also argues that literature can inform court decisions and interpretations of law because literary analysis can be used to interpret legal texts. Literature presents a dynamic image to the reader. The reader takes up lessons from the story and then lives them out. Thus, literature serves to instill voluntary Foucauldian self policing, the internalization of norms for compliance. In this article I present a critique of Rousseau’s parable of the love story of his fictional ideal young citizens, Sophie and Emile. I argue that this parable embodies and reproduces hierarchical inequalities, that it seeks to compel the citizen to internalize the values of rugged sexism that Rousseau thinks best serve the state, I will not so much focus on literary devices as will on the actual story line, to see how the story line creates scenarios for legislators, and judges to act on. Essentially, the story presented is a set of scenarios for the society to take up and live out. Rousseau is scriptwriter for the entire French Nation and, due to the universalistic vision of French liberalism the entire world. The problem is, the stories Rousseau is telling us are usually outright disgusting though they are occasionally (unintentionally) comical. Rousseau’s position on gender inequality is the same old story: He presumes a symbolic equality, but then replaces it with a real inequality justified by the character of “natural” differences. The result is subjugation of women (homosexuals are beyond the pale of course), by and under the influence of social games. The problem is that in these games there are no fireworks; those games both hide and reveal inequality, inequality that leads to suffering. Rousseau does not describe the ugly side of gender relations, the reality of gender oppression. The omitted part of his story is in that sense the more important side. And that is the reality of law, literature and gender: gender as abuse, ownership, domination, control, violence, is invisible, unimportant, secondary, to be ignored, if not swept under the (able and whitewashedLaw and Literature in Emile a Equality Mlusory Equality Rousseau begins to build his inequality-in-equality story with a comparison and contrast of the sexes in everything that is not about sex, a woman is man: she has the same body, the same needs, the same faculties, the machine is built in the same way In all that relates to sex, women and men are always and everywhere showing differences: the difficulty of comparing them is that of determining the constitution of the one and the other by a study of what is due to sex and what is not. ‘The only thing we know with certainty is that all they have in common is species, and all that they differ in is due to their One could suppose that the fundamental distinction for Rousseau really is only based on reproduction. But he gocs well beyond that, and indeed essentially reiterates the same gender inequality found in Plato and Aristotle Perhaps it's not fair to judge civilizations that lived under another mode of production by our own values. Itis impossible to completely improve or repair the damage of slavery, racism, sexism, But we must judge and criticize these “dead white males”. Otherwise, the damage which is the logical outcome of their thinking repeats. If there is any doubt that Rousseau is sexist, perhaps the following passage dispels it: “A docility follows from this usual constraint [the so-called “natural” gender relations] which women need throughout their lives, because they never cease to be subject to a man, oF to the judgments of men, and they are never allowed to get above those judgements."? “Natural” Inequality of Talents Having started by basing inequality in reproductive power, Rousseau then turns that into inequality according to reproductive role, and finally into sexual inequality according to social (gender) role. Rousseau presents these inequalities asa ‘Marxism, Liberalism, and Feminism due to “natural” merits, but in reality they are socially constructed around the roles of dominating and dominated, with the “game”, surprise surprise, being a symbolic hunting, which for Rousseau is “inevitable” and “natural”, The so-called natural inequality Rousseau describes is not only related to reproductive roles, but is also related to “natural” ability. Thus: “All faculties common to both genders are not equally shared, but taken in all, they offset each other. The woman is better as a woman and less as a man; wherever she asserts her rights, she has the ad vantage; everywhere where she wants to usurp our own, she remains below us. We cannot answer to this general truth but by exceptions; the constant way of arguing by the gallant partisans of the fair sex."* Fairly obviously the discourse is a discourse by men, among men, about women. From a literary perspective the discourse is a monologue and that is why it is so empty and dissatisfying even after history has proven Rousseau wrong. This ideal of a complementary partnership is the better vision of Rousseau. It is the realty to create. But the social relations he wanted to reproduce in the short-term (Christian elements of docility and familiarity) will not encourage equal partnerships — though the ones he wanted to encourage in the long term (pagan elements: strong women) might. To continue to describe gender inequality according to Rousseau, he requires a different education for young girls than for boys ‘To cultivate in women the qualities of man and to neglect those which are their own, is thus visibly to work to their detriment. Those being beguiled sce them too well to be fooled; trying to usurp our advantages, they do not abandon theirs, bur it happens then that, unable to manage one and the other because they are incompatible, they rest below their potential without reaching ours and losing thereby their half of the prize. Believe me judicious mother, do not make of your daughter an honest man, so as to give the lie to nature; make an honest woman, and be sure it will be better for her and for us."*Law and Literature in Emile o ‘Thus we see that for Rousseau any affirmation of genuine equality is “usurpation” - which shows the inequality inherent in his thinking. Usurpation is an attack by one lower on their superior. The other objection here is the characterization of sexual dissidents as demented, perversion, as the source of suicides, murders, and forced sexual relations. “Natural” Inequality of Intelligence More consequences of inequality as the “natural result of natural facts": Rousseau believed that women are intellectually limited : “The art of thinking is no stranger to women, but they must only bring to flower the sciences of reasoning [i.e. practical works). Their greatest progress {success} is in the morale and the things of taste; as for physics, she retains nothing but a few ideas of general laws of the system of the worl. Comedy gold. It reminds one of the characterization of the intelligence of so-called “inferior” humans in Africa, Rousseau continues in his parade of stupid = “The search for abstract teuths and speculative principles, axioms in science, anything that tends to generalize ideas is not the responsibility of women, their education must all relate to practice. Al reflections of women in what is not immediately in their duties, must aim at studying the men or those pleasant forms of knowledge which have but good taste as their object: because, as to engineering works, those are beyond their scope: nor do they have enough aptitude and attention to succeed at exact sciences, and as for knowledge of physics, it is to those of the two who are the most active, the most go-getting, who see the most objects, itis to those who have the most strength and ‘who exercise more to judge the relations between sense objects and the laws of nature. The woman, who is weak, and who sees nothing of the world, assesses and judges mobiles as they can be implemented to supplement her weakness .. All that that sex cannot do by itself, but which is necessary or agreeable to her, she must have the ability to make us want to do, and therefore she should thoroughly explore human nature generally, not by the abstraction of the spirit of man in general, ‘but the spirit of men who surround her, the spirit of men to whom she is subject, whether by law or by opinion.» ‘Marxism, Liberalism, and Feminism Similarly: “Women have more spirit, and men are more ingenious; Women observes, and man reasons: from this competition results the clearest light and the most comprehensive science which the human mind can acquire from itself” The Critique of Naturalism My criticism of Rousseau is not limited to the effects of his thought (inequality, rape, suicide, murder, mental and physical deformations), I also criticise his basing his proposals on the idea of “natural” inequality. The result of the thought of Rousseau is several types of violence. Ifone sees that the results of the type of thought Rousseau exemplifies, typical western patriarchy, are several varieties of violence, then one must ask themselves whether his assumptions are incorrect. We will see that his idea of “nature” is either ambiguous (without definition) or circular. Nature can be defined in at least two ways : ()_ whatexists -because all things are natural phenomena 2) what is “normal”, customary and usual, If I say that something is natural descriptively, then the only thing I say is that it exists in the universe. “Nature” in discourse is usually not meant merely descriptively. Rathe: nature as an argument for what ought to be is essentially a prescription, For example, homosexuality exists, and so it is in fact natural, But many “natural” law theorists would never admit the natural character of homosexuality. ‘Nature” as prescriptive is almost always used equivocally — 10 claim that what ought to be is what in fact is the case, that deviations from what ought to be do not in fact exist as they are not a part of nature. Nature as a prescription presents the idea that a thing is “natural” if it leads to the “good” ~ if itis customary, normal, in short accepted by the dominant class: nature, not as what exists (a description) but rather as what is normal, i. the norm (a prescription ~ what ought to be). To use the nature of things as an argument, to say that something is, and then another thing must be, is usually an equivocation,Law and Literature in Emile n and/or contains @ hidden enthymatic premise. The idea of prescriptive “nature” is pseudo reasoning because nature-as- a-prescription is often linked to an equivocation between the idea of a descriptive nature (the universe as it is ) And the “nature” as an author wants to see it. Finally, if the natural is what “is” then there is no point in arguing out what “is”. This sort of naturalist reasoning is inadmissible, but not because of a supposed refusal of inferring from ought to is ~ rather due to equivocation of prescriptive and descriptive uses of the term nature and/or enthymematic presumptions which usually mask that equivocation. Why is there a presumption of the existence of a “natural” order of things? The “natural order” is necessary as the foundation of several value judgements. If there is a natural order, which inevitably lead to truth and/ or happiness, then itis right to follow that. But the “natural” (existential) order (a description) includes several things that are not “natural” (prescriptives) ‘This “natural order” is an assumption. For universal sense (nature is defined as anything existing) generally has no prescriptive usefulness (unlike a chain of statements about nature). We cannot demonstrate the existence of a natural order even one iota different from the reality that does exist, Murder is descriptively “natural” because murder happens in nature. However, no one would argue that murder ought to be normal because it is a part of the “natural order”. Whenever trying to externalize their model of the “reality” one risks universalising their own individual experiences, which is not at all a scientific method because it leads to the risk of errors due to lack of comparative verification and the limited experiences of any one individual. In Emile, Rousseau made the presumption that socially constructed relations are “natural” ie. genetic. But his externalization of that model is not necessarily bad if there are ways to contest, compare and synthesize the various opinions - which explains the power of dialectical method. Comparison and interplay of each individual's model of reality through social interaction is the basic fact justifying democracy in a world based on mutual ature” in then ‘Marxism, Liberalism, and Feminism respect and mutual consent. It seems to be the best, perhaps the only, way of conducting human affairs. Critics of scepticism and moral relativism were strong enough to upset the old moral order: It must be re-established on a more human and less dogmatic basis. The alternative is morally and economically unthinkable ~ more genocide, war and pointless dehumanization with attendant poverty both literal and metaphoric. Mythology and Contradiction: Sparta “Return with your shield - or on it” -proverb attributed to Spartan mothers. “A woman from Sparta had five sons in the army, and was awaiting news of the battle. A Helot arrives, and says, trembling: ‘Your five sons were killed." ‘Vile slave, have I asked this? We have won a victory!" The ‘mother ran to the temple, and gave thanks to the gods. This isthe citizen.”™ My position is that Rousseau is sexist. I must clarify that his vision of women is at times contradictory. Rousseau wants to create a strong athletic woman, but also to have the docile motherly woman, The “classic” myth of Women in the West is the “vision” of virgin/ prostitute (Mary, mother of Jesus and Mary Magdalene, the proper woman at dinner and the whore in bed). This “vision” was then expropriated and used by capitalism in pornography. But the erypto-pagan Rousseau has a different ideal: the duality of mother! warrior. Although he eroticizes power and glorifies war thereby at least this vision offers more opportunities for women's development and self expression. However, Rousseau combines his ideal with the detritus of the virgin/ whore complex. The better description ‘would be that there is a sub-current of the Christian vision of the woman who remains as a relic (and as a contradiction) in the thought of Rousseau History teaches us that Sparta was a militarized communist society. Their economy was undeveloped because they believed that an easy life will lead to weakness. Their objective was to structure their society so as to have a strong military with which to defend themselves. According to the legends,Law and Literature in Emile B Sparta was gifted with very strong and talented athletes. Not only men, but also women exercised their physical talents there. Thus Sparta was a hierarchical society on the military level but was egalitarian on the economic and sexual levels. With regard to equality, history teaches us that the best commissioned officers worked there way up through the ranks of non-com missioned officers (such as the German, Israeli, and American armies show) and that the best form of leadership is informal. History also teaches us that these same societies have also produced women warriors. Thus, we see a correlation between equality in a society and the quality of its military force, Rousseau’s Sparta looks like an ideal Polis in several aspects. These passages, which glorified w ar, shows the idealization of Sparta by Rousseau and that his idea of the relationship between women and men is dichotomous, split between the vision of the church (total bivalent inequality) and the Roman vision (a bond between spouses, but inequality relating to the powers over children and third parties). Rousseau’s theory is distorted and contradictory on the topic of women and war as well as in his construction of other physical relationships between the sexes. He simultaneously seeks to create a new woman to compliment his new man. So he wants a strong woman, a new Minerva: “For the extreme softness of women begins with men, Women should be robust, not like them, but for them, so that men who are born of them will also be strong. In this, convents where residents have but coarse food, ...races, open air games and ‘outdoor gardens, are to be preferred to the father’s house” Likewise, “The girls in Sparta, like boys, practiced the military games, not to go to war, but to one day bear children capable of supporting fatigue. This is not what I approve: it is not necessary to give soldiers to the state that mothers carry the musket and exercise as the Prussians.” Rousseau again follows Plato on the need for a militarized communal society, saying :m ‘Marxism, Liberalism, and Feminism “Plato in his Republic, gives women the same exercises as men; I believe in that. Having removed from his government families, and not knowing what to do with women, he was forced to make men of them. This beautiful genius had combined and foreseen all: he went beyond an objection which no one would have pethaps dared to make to him Ido not speak at all of the so-called community of women, an oft repeated accusation which proves that those who make it have never read him. I spoke of this civil promiscuity which everywhere confuses the two sexes in the same jobs, under the same work, and cannot fail to cause the most intolerable abuse. I speak of this subversion of the sweetest feelings of nature, sacrificed to an artificial feeling that can not survive by itself" as if it was not natural to form bonds of convention! As if the love one has of his neighbors was not the principle to which we owe the state! ‘The reason for exercise is frankly functional—to bring forth strong children, a pagan outlook. But at the same time Rousseau wants to keep women in the same position as the old order-wife and protective mother, docile, Christian Rousseau seems to think the two competing visions are complementary. But the contradiction is fundamental enough to be evident at times in his own texts: “Will she nurse today and tomorrow be a warrior?”13 Well, why not? The division between mother and warrior is fairly fundamental to Rousseau-but it wasn't always the case historically. He ignores the fact that historically there were woman warriors, the most recent examples being the USSR during the Second World War, Israel, Vietnam and Eritrea during their wars of independence. Historically, women warriors also existed in Scythia, although the patriarchy does not want to admit that In trying to find the ideal city (kalipolis), we contrast the Polis in Sparta (communist, militarized, conservative) and Athens (aristocratic, artistic, philosophical and liberal). In general, late modernity sees greater virtu in Athens, because it was freer, more liberal. Is that the case? Were you freer in Sparta or Athens? I think the ideal of liberty is at leastLaw and Literature in Emile 5 ambiguous, if not empty. The human condition is fundamentally dependent physically and mentally, We are conditioned in many ways and by many experiences. How can we speak of abstract freedom? It seems to me that this idea in general is used to justify inequalities as “natural” and/or “contractual”. Freedom as an abstract “glittering generality” seems empty of meaning, and therefore an ideal tool of demagogues. To show this, I propose the following argument: Does liberty consist in choosing (o do right or in doing what is right? Is the freedom to poison and fatten and harm one’s self freedom? Freedom, if it exists, is to know what is right and to choose to do it - which still is conditioned, relative and to that extent ~ predetermined. Predetermination and freedom seems contradictory. Thus even in the best case the manipulative lies of “freedom” disappear, So the question becomes in which society would one have the best opportunity to know and choose to do right? Let us carry the debate forward 2000 years. In the 1970s where would one have had the best opportunity to know and choose to do right - in the U.S. (Athens) or USSR (Sparta)? The former was decadent. The latter was authoritarian and sclerotic, If you're in a decadant society, you're not likely to be able know the good - there are too many bad possibilities. But if you're in an authoritarian society it is also nearly im possible to know the good, because there are no alternatives. This indicates that the question of autonomous moral choice is a false one: we always have imperfect knowledge and to that extent are unfree. Seeing that we are constructed by our society that we are inevitably the product of this society, that our knowledge is inevitably partial, how could we make a “free choice”? We are free only to the extent we are aware of how unfree we really are and how much we struggle against those limits. Heuristics help. Ifa proposition leads to bad ends it is probably wrong too. The truth produces truths (which are not necessarily good - something can be true and bad). Lies produce lies. The difference between truth and falschood is revealed here - lies in general do not lead to good things, especially in the long term. A thing may be true, but bad, but6 ‘Marxism, Liberalism, and Feminism itis very rare that something is false and good. This is a general rule, and general rules are not universally true, Nevertheless, this proposal is sufficiently certain that we can depend on it as a way to live practically. It seems to me that the opposition between truth and falsehood is absolute. Thus their opposition can not be synthesized. It is a destructive opposition, not a synthetic one. Rousseau's inequality appears innocent, but lead to the reality of violence. So Thave to deal with the topical of sexual violence. Sex and Violence Rape Most people believe what they want to believe, and do not believe things they do not want to believe. We are all shaped by our experiences to interpret “reality” in accord with our dominant assumptions, To overcome this obstacle was the target of Nietzsche in his quest for Ubermenschen. The initiatory cults - the army, sects, police - seeks to generate, more or less consciously, a shock sufficient to force the subject to rethink all their experiences. In the case of dominating organizations the objective is to destroy the subject and instill the ideas of the organization. The liberating cults also seek to shock, but thereby to force the subject to rethink al the time, to think for themselves ~ ie. to start to philosophise Rousseau shows unintentional blindness when he addresses the topic of sexual violence ‘The freest and sweetest of all acts admits no where any real violence, nature and reason oppose it.” That sentence is ignorant, Rousseau seems unable to believe in the reality of sexual violence or to conjecture that sexual violence is pervasive. He doesn’t want to see the ugly reality because that reality is ugly. Similar statements appear elsewhere, for exampleLaw and Literature in Emile n “the strongest is th depends on the weaker™ aster in appearance, and effectively First, I must say that the sexual violence nexus is pervasive, either due to evolution or economic relations and probably both. In any case, sexual violence is there, a reality and a pervasive one, I suppose it exists, to varying levels, in most relationships. And the results are not always (even most of the time?) “just a game” - ask any victim. But having an understanding of this fact is the first step to changing it. You can escape the “game” of capitalist sexualized violence put into service of the economic order. No one has a monopoly on sublimation or eroticism. The blindness of Rousseau on the reality of sexual violence is also evident in the following passages “The Progress of enlightment acquired by our vices on this point has greatly changed the old opinions among us, and we hardly ever speak of rape anymore since itis so little necessary and most men no longer believe it; instead it is very common in the ancient Greek and Jewish communities, because these same opinions are [found] in the simplicity of nature - only ‘one experience of debauchery is able to uproot them. If we note nowadays fewer acts of rape, it is certainly not that men are more temperate but because they have less credulity, and that such complaints, which formerly would have convinced simple people, would today only attract risk of mockery; one is more succesful by silence, In Deuteronomy there is a law by which an abused girl was punished with the seducer, if the offence had been committed in the city, but if it had been committed in the country or in desolate places, the lone man was punished; For, said the law, the girl shouted and has not been heard. This benign interpretation taught the girls not to be surprised in place frequente Rousseau doesn’t seem to understand that vietims of crime are not at fault and that claims of rape are generally sincere Rousseau holds women responsible for being raped.B ‘Marxism, Liberalism, and Feminism Loyalty The same vision of super-responsability for women also manifests in Rousseau’s view of marriage. is permitted to no one to violate their fidelity, and the unfaithful husband who deprives his wife of the only price of the austere duties of her sex is an unjust and barbaric man; but the unfaithful woman does more, she dissolves the family and breaks all links of nature, in giving to the man children which are not his, she betrays the one and the other, she joins perfidy to infidelity What really counts most for Rousseau is social opinion: So it docs not matter whether the woman is faithful but whether she is judged as such by her husband, her relatives, by everyone. It matters that it bears in the eyes of others as well as her own the report of her virtue."* ‘That passage just highlights the fact that social “reality” is socially constructed, and is one more double standard. Objectification of Women ‘The logical conclusion of the thought of Rousseau, which was inherent from the beginning, is that woman is a thing defined around her reproductive ability. Children are property and so are women - property owned by men, Women are a capital good: they produce more women. The mechanization of women to breed soldiers and workers, a common theme in the West, appears quite clearly in Rousseau’s thought. “Women, you say, do not always have children! No, but their proper finality is to do so. What! Because there is in the universe a hundred large cities where women, living in license, make few children, you claim that the status of women is to make few!“ [20] ‘This is a problem of one school of ius naturalism: when it sees natural facts it does not like, it throws the belief that law should reflect “nature” out the windowLaw and Literature in Emile np Rousseau mixes colonization and objectification of women in the following passage, where he makes a comparison between the sex of animals and of humans: “If the female animals do not have the same shame what follows from it? Have they, as women, unlimited desires to which shame serves as a brake? Desire for them only comes with the need; When the need is satisfied, desire ceases; they repulse the male not by feint but seriously: she receives no more passengers when the ship has its cargo “(21] Here he speaks of animals and slave ships but implies it as an analogy for the humanities. Sexual relations are not a contest, Rousseau argues that the desire among women is not as easy to meet than men, Maybe the men are bad in bed? If freedom exists, it is also socially constructed. Thus slavery of one is a slavery of all. Relations between the sexes according to Rousseau are in fact unequal and his view in my opinion is twisted. War between the Sexes? Rousseau concluded his book, with the marriage of his two Puppets. At least in his sub-conscious he recognizes the internal contradictions in his thinking, He describes the so-called seduction of the strong but stupid Emile orchestrated by the ugly, but useful Sophie ‘The charm of this enchanting daughter goes by torrents to his heart, and he begins to swallow by long draughts the poison which seeps in. A loving relationship does not begin with poison. If he wanted to build a little Minerva, he finished instead with a spider. The choice of the term poison by Rousseau shows that fear, power, and conflict are inherent in sexual relations — according to his perspective. This pathetic story is sad, and could be otherwise. That’s the reality to build. Conclusion: Emile, a Tragicomedy Rousseau intends to present several stirring stories explaining the justice of his world view. We are told, essentially, of the# ‘Marxism, Liberalism, and Feminism girl who cried rape, the girl who didn’t know her place, the who tried to be a man, the girl who fucked some other man and above all of the baby factory for the war machine. ‘The good girl is useful for something after all. These stories however shape judicial and political consciousness, and influenced who knows how many people by presenting them 1 presentiment and model of situations to live out in their own lives, The best use of this literature today is as tragicomedy. Tragic because the sort of nightmares it presages really are avoidable. Comic because history has definitively outgrown the world Rousseau believes we live in or ought to live in. Footnotes 44. Rousseau, Emile, page 512. Paris: Editions Flammarion (1996). L 2. Tid at 466 3. bid at 482, 4 Ibid at 474 3. Ibid at 474, 6. Thid at 358.559. 7. Ibi at 507-508, 8. Ibid at 39. 9. United States Army, Military Leadership, FM 10, Thid at 477, LL “je parle de cette subversion des plus doux sentiments de la nature, immolés at un sentiment artificicl qui ne peut subsister que par eux comme s'l ne fallait pas une prise naturelle pour former des liens de convention!" I believe here he means homosexuality 12, Thid at 472-473 15. Ibid at 472 14, Thid at 468, 15, “le plus fort soit le mai ible" [16] Tid 16, thid at 469, 17 Tid at 470, 18, Ibid at 471. 19. thi. 20, Ibid a 467 21, id at Sa en apparence, et dépende en effet du plus6 MACKINNON AND MARX “When Tse a word,’ Humpty Dumpty said, in a rather scornfl tone," it means just what I choose it 10 mean, neither more nor less."" —Lewis Carrol, Through the Looking Glass Marxism and Feminism seem to live in parallel worlds, as if through a looking glass. Each seeks to end exploitation and oppression yet target differing aspects of them using different terms for similar phenomena. Orthodox Marxists might say that Feminism only targets part of the problem, And Feminists might point out how Marxism only reproduces male power, ‘Those would be examples of sectarianism. Marxism and Feminism can be complementary in that Feminism can provide critiques of the failings of Marxism, whereas Marxism can point ‘out possibilities for Feminism. Catherine Mackinnon’s work is the clearest example of a necessary dialog between Feminism and Marxism and this article outlines her contribution to the struggle against exploitation of the Third World and oppression of women. Rather than answers I offer basic terminology (oppression versus exploitation; the principle contradiction) and above all: question marks: to Marxism I ask “what went wrong”? To Feminism I ask “what went right”? Feminism has trouble accessing Marxism and Marxism has trouble accessing feminism, Worse, both movements want something that everyone wants, peace, prosperity, justice2 ‘Marxism, Liberalism, and Feminism sum, the good life and in fact for everyone, Marxists have trouble accessing feminism because of the issues. And feminists have trouble accessing Marxism because Marxism is at times abstruse,’ internally splintered and externally ham-handed or irrelevant. Mirrors reflect - but also distort. Marxism Part of the reason Feminism and Marxism do not interact more cohesively is the simple fact that “Marx was not a feminist.” * In fact, Marx was a male chauvinist pig, at least in his personal life.’ Moreover (as a result?), the central problem for Marx was not the exploitation of woman by man, it was the exploitation of man by man, ic. commoditization, particularly labor commoditization.’ “Marx addressed neither gender nor sexual orientation discrimination in his theory of capitalism.”* Mackinnon resituated feminism by passing it through a Marxist lens in order to separate feminism from liberalism She developed therefrom what seems to me to be a parallel feminist Marxism, wherein Marxist concepts replicate themselves but are mapped onto women and transform thereby into new terms. The first and most important analogy Mackinnon makes is between fucking and work, “Sexuality is to feminism what work is to Marxism: that which is most one’s ‘own, yet most taken away."® Fucking is a commodity - “many work and few gain... some fuck and others get fucked".’ People buy and sell sex and sexuality every day around the world Not only is fucking a commodity it is also a capital good: fucking makes more slaves. I do not know if Marxism or feminism recognize that fucking is a commodity and a productive force but itis ~it is where slaves and cannon fodder come from, There are other analogies between Marxism and feminism “Marxism and feminism are theories of power and its distribution: inequality. They provide accounts of how social arrangements of patterned disparity can be internally rational yet unjust."* What passing Marxism through a woman's eyes does is reveal some things that Marx at least didn't seem to notice‘Mackinnon and Marx 8 Mackinnon asks the obvious question “is there a connection between the fact that the few have ruled the many and the fact that the few have been men?";’“Is male dominance a creation of capitalism or is capitalism one expression of male dominance? What does it means for class analysis if one can assert that @ social group is defined and exploited through means largely independent of the organization of production, if in forms appropriate to it? What does it mean for a sex based analysis if one can assert that capitalism would not be materially altered if it were sex integrated or even controlled by women?" Feminism provides Marxism with several useful questions. Can Marxism provide some useful answers? Part of the difficulty of getting feminism and Marxism to understand each other is the fact that they put the primary conflict in society at different places. For Marxism, the primary conflicts are between classes, specifically between the working class and the proprietary class. Of course, women are one classification; the question is, whether a person is primarily their gender or their class. Thus for example, “[Rosa] Luxemburg sees that the bourgeois woman of her time is a ‘parasite of a parasite’ but fails to consider her commonality with the proletarian woman who is the slave of a slave.”"' But feminism and Marxism are not necessarily in conflict and at most times will move to the same goals: “"There is a difference between a society in which sexism is expressed in the form of female infanticide and a society in which sexism takes the form of unequal representation on the Central Committee. And the difference is worth dying for." Property Ultimately the problem of feminism is a problem of capitalism. “To be man’s other is to be his thing.”! Women are seen by patriarchy as property, by capitalism as labor commodities with rare resources that men, by definition, do not have. For this reason Marxism and feminism do have something to talk aboutoo ‘Marxism, Liberalism, and Feminism Objectification ‘The problem of feminism is the problem of objectification of women by man'® Gust as the problem for critical race theory is the objectification of slaves by whites), an epistemological problem to be regarded from the materialist perspective. Objectification means to be made into a thing, to be turned into a saleable product. Patriarchy turns women into objects to be owned and used, capitalism turns them into commodities to be exchanged or kept. Mackinnon argues that Marxism has a favorable view toward objectification, whereas I think the better view is that alienation (of labor) is one step above objectification (being rendered into an object). ” Either 1 am misunderstanding Mackinnon’s view on objectification badly or she is not secing that Verdinglichung means being made into a thing. She, or a translator, may be confusing Gestaltung (conceptualization; formation) with Verdinglichung. True it is that Marx believes self expression through one’s creative productive labor as one goal of liberation - but that would be Gestaltung, not Verdinglichung. In all events, capitalism could restructure it's superstructure (the relations of production ~ social justifications and rationalizations of the power structure of the system) to prevent violence against women, if it wanted to," yet doesn’t because violence against women is erotic power over women, Women’s Issues ‘The problem with accessing feminism, from Marxism, a man’s perspective, (Marx was a man) is that feminist issues are aditionally only of concern to women. Further, many feminist” legal issues (mostly family law issues) are considered marginal, secondary and “unimportant”. Issues central to feminism are controversial in that they are of intimate interest to women because they directly concern women’s bodies. Personal issues can make one uncomfortable, shy, or embarrassed. Of course, the “easy” liberal solution is to declare ‘individual autonomy, bodily integrity”. But the easy liberal solution which would legalize prostitution (just another market transaction) and pornography (same thing) and allow abortion‘Mackinnon and Marx 85 Just about anytime (more convenience ~ market capitalism is all about convenience) is not useful to patriarchy. Patriarchy needs women to breed more soldiers so it tries to control women and in ways that are subtle, multivariate and effective.” Moreover, Mackinnon rejects liberalism because liberalism assumes, wrongly, that men and women are on equal footing.” Her attitude is scientific and consequential ‘The most obvious legal issues for women’s rights are rape, prostitution, pornography and abortion. Are they the most obvious because they are also the issues men are most interested — they all deal with fucking which is something men are very interested in Objectivity and “Neutrality” Patriarchy and liberal capitalism alike try to present their world view as objective, rational, pragmatic, detached®! — and not as disconnected, opportunistic, rationalistic or cold. Mackinnon exposes this supposed objectivity as being not at all neutral by using methods developed out of legal realism. For Mackinnon, the subject-object split isa false dichotomy which seems to me a monist position. Mackinnon argues that class — the class being woman or man — influences ones perspective heavily.” Thereby, “Aperspectivity is revealed as a strategy of male hegemony."™ Being objective is to be a man — to be rational, not emotional, to be pragmatic not altruistic, to be detached not connected. Objectivity is a precondition for objectification — but an objective scientific view which is neither exploitative nor oppressive is also possible.” Formalism and the Public Private Distinction Just as feminism rejects the subject-object distinction as a false dichotomy used to maintain patriarchy (in Marxist terms, the state) it also rejects the public private distinction, long criticized by U.S. scholars.** Of course it does: the atomization of womAn via “private”, “individual” patriarchy (in Marxist terms, property) results in the isolation of womEn: and once isolated, Patriarchy (in Marxist terms, capitalism) takes each individually isolated woman and systematically dismembers% ‘Marxism, Liberalism, and Feminism her, one by one, piece by piece.” Solidarity isn’t merely political posturing it is a technique for survival. Mackinnon’s analysis is influenced by legal realism’s critiques of what it called formalism: “legal doctrines, incoherent or puzzling as syllogistic logic, become coherent as ideology”. Legal doctrine is manipulable for a reason, the manipulability serves the interests of the dominant over the dominated. Feminism deconstruction of What emerges from Mackinnon’: objectification, her exposure of the lies of patriarchy, is feminism unmodified, a materialist manifestation of one aspect, of class society. Mackinnon argues that her world-view, feminism unmodified, is anti-liberal, anti-individualist and post-Marxist partly because Marxism cannot access certain aspects of feminism within Marxist terms. Marxists consider Mackinnon's post-Marxism pre-Leninist for Mackinnon ignores the role of a vanguard party in mobilizing resistance.” The Principle Contradiction A Maoist would say MacKinnon places the principle global contradiction not on the workers versus the capitalists, but on patriarchy versus feminism. There are good reasons for her to do that. The first world workers are essentially bought off (now you know why the U.S. labor unions supported the Vietnam war); child labor and sweatshops still exist ~in Southeast Asia, And they are the source of the wealth enjoyed by everyday Americans in WalMart every day To be exploited is to be paid less than the value of your labor. Thanks to the redistribution of Third World exploitation, American workers are not exploited. An assembly line automotive worker in the U.S: is simply not paid less than the value of their labor. Labor exploitation still exists, but it has all been outsourced to the Third World, to prisons, and to migrant laborers. So it could casily seem, in the first world, that there is no proletariat ~ because they live in the Third World. But if there is no labor exploitation outside of prisons‘Mackinnon and Marx 87 and farm fields worked by Mexican migrants, there is still gender oppression, oppression of homosexuals. Oppression isn’t the extraction of surplus value from labor; opression is the suppression of views which are subversive of or outright contrary to the dominant power of white nationalism and patriarchy. Oppression and stupefication (two of capitalisms three vices) still exist in the first world but labor exploitation doesn't. Mackinnon's earlier work placed the principle contradiction on male versus female. Her more recent work has started to focus on the Third World.” Does that indicate a shift in her thinking on the principle contradiction, the main battle line? OF course, half the Third World is women. So Mackinnon may be moving her principle contradiction to First World versus Third World. Or, she may not. Bither way, there is plenty of work that one can do to oppose exploitation and ‘oppression even in the first world from a woman's perspective. Opening up the scope of oppression to take into account the exploited Third World, whether by extraterritorial application of laws against pornography, prostitution and pedophilia, or through extraterritorial tort claims are clearly progressive acts. “Womens” Issues Prostitution: Mackinnon is against the liberal solution of legalization and normalization of prostitution® because she believes that would not end the problem of oppression of women by men or the abuse of women in prostitution. In print she was less committed to that line fifteen years ago : “For years Thave been saying that Ido not know what to do, legally, about prostitution. I still do not, Ido know that we need to put the power to act directly in women’s hands more than we have.” * I think from what I have seen in Germany and the Netherlands that legalization is the more effective policy than the French solution of criminalizing only the john and not the prostitute. The French solution does however avoid the common problem in the U.S. of laws against prostitution being used against prostitutes and not against their clients.*88 ‘Marxism, Liberalism, and Feminism Then again, 'm a man, of course I want legal prostitution ‘This sort of self interest obscuring a clear vision of justice is what I mean when I say that men, essentialism aside, (Mackinnon is not an essentialist) have trouble accessing feminism. Capitalists have an objective interest in exploitation. Men have an objective interest in patriarchy. These interests can blind us. Mackinnon recognizes that the current situation of illegalization of prostitution results in abuse of women, She tries to oppose the anti-woman effects of anti-prostitution laws. For example, she notes that the courts rely on the fact of (mostly ‘gay) male prostitution as justification for anti-prostitution laws as not being sex discrimination against women.” Patriarchy is clever enough to make its laws appear objective, neutral, and ‘fair’ even as they achieve sexist patriarchal outcomes.” ‘Though she doesn’t want the liberal individualist solution of legalization and normalization, Mackinnon is willing to consider using the liberal concept of civil rights to advance women’s interests. * She also argues for private law claim tort as a way to redress the interests of women.” But it is extremely unlikely that any amount of criminalization would in fact climinate prostitution or pornography. Mackinnon is stumbling about, looking for ways to end the worst aspects of sexuality but isn't proposing alternatives, at least not ones that seem workable. Economically speaking her proposals would raise the entry cost of being a prostitute, reduce supply and thus inerease the compensation of the remaining prostitutes which would encourage women to enter into prostitution. Of course, economies will not provide solutions to exploitation, But here it points out why Mackinnon's anti-porn-and- prostitution line, aside from depriving women of one of the most highly remunerated jobs and the only sector where women consistently are better compensated then men won't work. Pornography: Mackinnon sees pornography and prostitution as essentially the same phenomenon — “Pornography is an arm of prostitution.”** — and she is correct as the etymology of the word pornography reveals. Mackinnon‘Mackinnon and Marx % ‘opposes pornography calling it an act of violence against women*! which teaches violence against women and degradation of women. For Mackinnon pornography is rape manuals, Mackinnon has never argued that all sex is rape, or that all, sex is prostitution but there is very clearly a strong cash-sex nexus and an equally strong violence-sex nexus in the world Further, the idea of consent requires free will and the possibility of non-consent, ie. consent is at times a myth. What if all sex were prostitution or rape or both? What if humans evolved as rapists because the competition to rape and not be raped resulted in stronger, faster, and cleverer humans? It would be useful to see Mackinnon grapple with these ideas head-on because she is an excellent jurist In all events it seems the pornification of the world resulting from the internet has not in fact led to a corresponding increase in violence against women. If anything, porn production today seems less violent than in the past because it is so common, thus less criminal and indeed often made by quite willing actors and even amateurs working from their home. So Mackinnon, to advance her position on porn, really hhas to argue against the liberal capitalist solution ~ something Marxists would of course be happy to see her do! Basically, she needs to amass solid statistical evidence to bolster her arguments. 20 years ago, before the pornification of the world via the internet, her position that pornography unleashes violence against women looked much more tenable than today Rape: “Rape, from women’s point of view, is not prohibited; it is regulated. ... Women who charge rape say they were raped twice, the second time in court, Ifthe state is male, this is more than a figure of speech." Pornography, prostitution, and rape are closely positively correlated for Mackinnon. Mackinnon argues that all porn is prostitution and that all prostitutes are raped. If all sex were prostitution and all prostitution were rape then in fact all sex would be rape, a position Mackinnon does not in fact take though she has been accused of it by (pornified) people who mistake her porn=prostitution=rape equivalence for a” ‘Marxism, Liberalism, and Feminism condemnation of sex generally. Mackinnon does believe in sex outside the cash and violence context. Lam sceptical about that Mackinnon's well-to-do class origins allow her to believe in a world where fucking and money don't necessarily have anything to do with each other just as my male origins allow me to believe in the liberal market model of prostitution as just one more market transaction. And this is one of the reasons Marxism and feminism are in an uneasy dance. Each is analyzing society as groups but thanks to anglo-individ ualism we are all too easily drawn out of the science of group interaction and into the presciemtific world of ad hominem, reasoning as essentialists splintering along sectarian lines into futility. We get atomized, sectarianized and then annihilated, fone by one. In any event, while it is clear despite her class origins that Mackinnon is dedicated to ending oppression 1 am terribly skeptical about ever breaking the cash-sex nexus. Sex is a commodity, and one of the most desired commodities ofall. [am even skeptical about breaking the sex-violence nexus — look at how eroticization of power makes it so difficult to escape the sex-violence nexus. I am however hopeful for a strong and effective critique of the eroticization of militarism, say along the lines of Lysistrata. Mackinnon does seem to believe that itis possible to have consent, and that the law of rape refleets the idea of consent; that the liberal model of individual will and consent in sex is possible." Again, I'm skeptical ~ people are only free to the extent we are aware of how socially determined they are, of how limited our knowledge and abilities are and to the extent we consciously struggle to free ourselves from the basic reality of our own limitations. Finally, Mackinnon notes how capitalist advertising is only too happy to profit from rape and that pornification of advertizing is the reality* — sex sells. That too indicates how deep the problems go. In sum, Mackinnon sees the crime of rape as really the crime against men's property* over a woman's body. An explanation of how fast capitalism/ late modernity recognized rape increasingly ~ date rape, marital rape ~ whhich had been ignored before is absent in her analysis. Why did that change‘Mackinnon and Marx ol in the law happen? Did Mackinnon prevail there, and if so how? How does the distribution of exploited third world labor to all social strata in the first world affect the social construction of rape in capitalism? Mackinnon doesn’t answer these question, nor do I, but I raise Family Law: While pornography, prostitution, rape and abortion are the four most obvious women’s issues, less obvious women’s issues but structurally at least as important are divorce laws, domestic violence laws, and least obviously but most importantly, equal rights. Note however that all these rights are considered of secondary importance in the law. No one thinks of “family law” as a glamorous or intellectually challenging and interesting area of legal practice or scholarship. ‘That says something about the status of women. The State ‘The state for Mackinnon is the embodiment of patriarchy” Marx argues similarly, that the state is the mechanism of domination of one class by another. For Marx, the exploited are proletarians. For Mackinnon, the oppressed are women, for Marx the dominators are capitalists. Mackinnon points out those capitalists just-so-happen to be almost always male, For both the state is an instrument for the exercise of power, to be used, or discarded when other more effective instruments are at hand. Resistance Tactics Understanding the possibilities and limits of resistance to oppression within the first world requires an awareness of the objective conditions of reality. Outside of prisons, migrant farm fields, and native reservations there are simply no truly exploited people in the United States or even the first world generally. However, there are exploited people in the world, they almost all just-so-happen to live in the Third World conveniently out of sight, thus out of mind and in all events no real threat due to distance. So, effective work against the worst effects of exploitation and oppression would aim at ending starvation, preventing and curing preventable and2 ‘Marxism, Liberalism, and Feminism curable deadly illnesses in the Third World, The first world labor movement is just not that important to ending suffering in this world here and now However, despite the absence of an exploited class and the reality of a majority of exploiters in the first world, critical scholars there did develop a few useful tools for resisting the worst aspects of empire. These are deconstruction, trashing, and consciousness raising. All are aiming at the main target, patriarchal eroticization of destructive power, but will also target the secondary manifestations thereof. Exposing the Eroticization of Power ‘The main contribution of feminism to ending oppression and extending life expectancies on earth will likely prove to be the correct analysis ofthe eroticization of power® in the oppression of women. Mackinnon has correctly identified that the real engine of patriarchy is the eroticization of power.” “Sexuality, then, is a form of power.”® Eroticization of murder, the wargasm, is the engine of the machine of labor exploitation and ruthless domination. Soldiers need something worth killing for and women's vaginas are it. War, at the level of killing and dying, is sexual competition. At the level of the state it is the bourgeoisie killing off the unemployed to sell weapons and seize market share to get the economy rolling again. War is a reaction to cyclical downturn and sexual competitition, Marx and the Feminists need to have a long talk about the facts of life. Can eroticization of ereative life affirming power be used against the eroticization of destructive life taking power? Power is not only the ability to take life itis also the ability to give life. Mackinnon argues that Foucault was just fine with eroticization of power, which is a point where I disagree with her. In any event, I argue that the eroticization of creative life giving power can be used to oppose the eroticization of death Using the State The state as the agent of patriarchy / the dominant class is likely not going to be the place where feminists will find redress‘Mackinnon and Marx 8 for their claims. Nonetheless, Mackinnon tries mightily to engage the force of the state to serve women’s interests for Deconstruction & Trashing Deconstruction is to disassemble a syntactically valid statement into its constituent elements in order to demonstrate the incoherence, usually resulting from circular definition or tautology. of those elements and thus of the syntactic element, Deconstruction especially focuses on false dichotomies” such as “public” "private"™ “objective"/ “subjective” to show that what is presented as natural inevitable and good is constructed contingent,” and possibly evil. * “[DJeconstructionists reveal that certain view points, values, interests, individuals, and traditions are either ignored, denied, or oppressed in the name of the privileged." Once the deconstruction of the syntactic entity into its constituent elements is accomplished, trashing consists of demonstrating how the elements and the entity are essentially nonsense ~ the emperor has no clothes, so to speak Consciousness Raising Consciousness raising is a particular feminist method which ‘can however be applied to other struggles against exploitation and oppression.” Like trashing, consciousness raising seeks to unmask the economic" structures of (male) power and to reveal the lies that maintain them. The goal is to change not only what one thinks but also the way one thinks,"*and thereby to teach people how to manifest constructive life giving power and oppose destructive life-taking power. The Personal Is Po ical Another tactic is personalizing political issues, to make them real in one’s own life and the lives of others, to feel at least some control over the vast problems facing us all. Of course, personalizing political issues feeds identity politics and post modernism. So answering this question becomes important which is more important as a determinant of one’s self concept and actions? Gender (woman or man) class (first world4 ‘Marxism, Liberalism, and Feminism capitalist third world proletarian) or nation? Feminism, Marxism, and national socialism reach different answers. For feminism, being a woman is most important. For Marxism being a proletarian is most important. For national socialism, being an aryan is most important.* If, objectively speaking, being an aryan is more important for the majority of people in the first world relative to being a woman then identity politics would only feed fascism. Conclusion In her earlier work Professor Mackinnon was placing the principle contradiction on patriarchy versus feminism. She didn’t seem to make the distinction whether patriarchy versus feminism was the principle contradiction only within the first world or within the world. Within the first world, feminism unmodified versus patriarchy may well be the principle contradiction. But globally it rather clearly isn't, However, in Mackinnon’s later work she focuses more and more on the ‘Third World. Globally, the principle contradiction is the first world versus the Third World, but one could argue that the first world is gendered male and the Third World is gendered female, Either way, the first world is raping the Third World to steal resources and labor as part of an entertainment dynamic. As to the theory of aesthetics, Mackinnon is forced to walk avery hard line, a tightrope really. On the one hand, she wants to get away from patriarchy and fake schmalzy manipulative and self destructive romance culture. However, she also would want to avoid the type of puritanism normally associated with christian fundmanentalists. ‘One can criticize Mackinnon for seeking to reform the symptoms of capitalism without going to the sources sufficiently. The reality is first world women are oppressed but are not exploited. Were the first world to take up all Mackinnon’s reform proposals ~ and it has taken up several of them already ~ the reality of the exploitation of Third world Iabor and resources would not be changed. Mackinnon need’s to look deeper into the mirror of production to understand‘Mackinnon and Marx 95 the rottenness and evil: first world women are oppressed but not exploited but a majority of women in the world are nevertheless oppressed and exploited Footnotes |. “In this content recent marxist work has tried to grasp the specificity of the institutional state: how it wields class power, oF transforms class society, oF responds to approach by a left aspiring to rulership or other changes. Whole liberal theory has seen the state as emanating power and traditional Marxism has seen the state as expressing power constituted elsewhere, recent Marxism, much of it structuralist, has tried to analyze state power as specific to the state as a form, yet integral to a determinate social whole understood in class terms.” Catharine MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist lurisprudence, 8Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. Pay 2. Dana Neacsu, THE WRONGFUL REJECTION OF BIG THEORY (MARXISM) BY FEMINISM AND QUEER THEORY: A BRIEF DEBATE, 34 Cap. U.L. Rev. 125, 128 2008) 3. “Karl Marx was an MCP. Viewing the world through the distorting mirror of his hatred for his mother, he looked down on women in general. Even on the eve of his fiftieth birthday, five yearsafter his mother’s death, he was still mercilessly deriding her failure to have mastered spoken or written High German. At the same time—I868 was apparently a good {eae for misogyny-—w hen he was at the height of his intellectual powers, ‘without the exeuse of youth or senility, he stooped to the following banal humor: Societal progress can be measured exactly by the societal position of the beautiful sex (the ugly ones included).” A self-proclaimed aficionado of obscure smutty poetry in several languages, he was also a prude —a ‘combination of traits suggesting a disturbed relation to women. The kind fof role model he inculcated in his daughters can be gauged by his responses to their requests for parlor-game ‘confessions he listed ‘weakness’ as his favorite virtue in women (and, of course, ‘strength’ in ‘men).” Mare Linder, MACKINNON ON MARX ON MARRIAGE AND MORALS: AN OTSOGISTIC odyssey. 41 Buff L. Rey. 451, 451-152 (1993). 4. "Marx was not a feminist. While critical of the status quo, he was not concerned with women's subordination, Mark was concerned with commodification, with the neverending process of the creation of new ‘wants that were, by their nature, impossible for the working class 10 ‘causing alienation that begged for wages and eventually jon. Marx was aware of gender discrimination, but he very likely thought of it a a result of capitalist exploitation. Moreover, he perceived the very nuclear family as @ means to satisfy the capitalist production by ensuring the transfer of property only to the children the wife bore to‘Marxism, Liberalism, and Feminism her husband.” Dana Neacsu, THE WRONGFUL REJECTION OF BIG. ‘THEORY (MARXISM) BY FEMINISM AND QUEER THEORY: A BRIEF DEBATE, 34 Cap. U. L. Rev. 125, 141 (2008), Dana Neacsu, THE WRONGFUL REJECTION OF BIG THEORY (MARXISM) BY FEMINISM AND QUEER THEORY: A BRIEF DEBATE, 34 Cap. U.L. Rey. 125, 126 (2005) Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought P. 848 Catharine MacKinnon, Feminism, Marxism, Method and the State: An Agenda for Theory. 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, p. 248 Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought P. 818 Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, p. 848 Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Though, p. 848. Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P-851- 882. Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 852 Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 866 Women have always been seen by [heterosexual men] as thet exclusive property” Michel Foucault, Sexual choice, ext interviews, 1961-1984), New York: Semiotext(e), p. 331. French or 1982, “Objectitication makes sexuality a material reality of women’s lives, not just as psychological, attitudinal, or ideological one, It obliterates the ‘mind/ matter distinction that such a division is premised upon.” Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P-865- 866 “The man/ woman difference and the dominance/ submission dynamic define each other. Ths is the social meaning of sex and the distinctively feminist account of gender inequality. Sexual objectification, the central process within this dynamic, is at once epistemological and political. ‘The feminist theory of knowledge is inextricable from the feminist‘Mackinnon and Marx a critique of power because the male point of view forces itself upon the ‘world as its way of apprehending i.” Catharine MacKinnon, Feminism, Marxism, Method and the State: Toward a Feminist Jurisprudence, 8 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 869 17, “The distinction between objectification and alienation is called into question by this analysis. Objectification in marxist materialism is ‘thought to be the foundation of human freedom, the work process whereby a subject becomes embodied in products and relationships, Alienation isthe socially contingent distortion ofthat process, a reification of products and relations which prevents them from being, and being seen as, dependent on human agency. But from the point of view of the object, objectification is alienation.” Catharine MacKinnon, Feminism, ‘Marxism, Method and the State: An Agenda for Theory, 7 Signs Journal ‘of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought. P. 866 18, “Since September Ith the international order has been newly willing to treat non state actors like states as a souree of violence invoking the law of armed conflict. Much of the international community has mobilized forcefully against terrorism. This same international community that turned on a dime after September Ilth has, despite important initiatives, yet even to undertake a comprehensive review of international laws and institutions toward an effective strategic response to violence against women” (Catharine A. MacKinnon, WOMEN’S SEPTEMBER 11TH: RETHINKING THE INTERNATIONAL LAW OF CONFLICT, 47 Harv. lat Li. 1, 23 2006), 19, To understand power properly one must sce it as a social process which results in self disciplining expressed through the body and encoded as knowledge. Power, knowledge and the body are an integral continuum. See: Foucault, Michel, The History of Sexuality, vol, 1, Harmondsworth, Penguin, 1981 (see pp. 92-102. 20, Catharine MacKinnon, Feminism, Marxism, Method and the State: ‘Toward a Feminist Jurisprudence, 8 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 884 2, “male dominance is perhaps the most pervasive and tenacious system ‘of power in history... Its force is exercised as consent, it author participation, its supremacy as the paradigm of order, its control as the definition of legitimacy. Feminism ...is more complex than transgression, more transformative than transvaluation, deeper than mirror imaged resistance, more affirmative than the negation of our negativity, It is neither materialist nor idealist; itis feminist, Neither the transcendence of liberalism nor the determination of materialism works for us. Idealism ‘women’s inequality is enforced so it cannot simply be thought out of existence, certainly not by us. Materialism is too real; ‘women’s inequality has never not existed sa women’s equality never2, 2, m4, 26. a. ‘Marxism, Liberalism, and Feminism iso longer necessaty todo so,” Catharine MacKinnon, Feminism, Marxism, Method and the State: Toward a Feminist Jurisprudence, 8 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 871-872 “Having been objectified as sexual beings while stigmatized as ruled by subjective passions, women reject the distinction between knowing subject and known object-the distinction between subjective and objective postures-as the means to comprehend social lif.” Catharine ‘MacKinnon, Feminism, Marxism, Method and the State: An Agenda for ‘Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 862 “There is no ungendered reality or ungendered perspective. And they are connected. In this context, objectivity-the nonsituated, universal standpoint, whether claimed or aspired to~is a denial ofthe existence or ppotency of sex inequality that tacitly participates in constructing reality from the dominant point of view. Objectivity, as the epistemological stance of which objectification is the social process ereates the reality it apprehends by defining as knowledge the realty creates through its way of apprehending it, Sexual metaphors for knowing are no coincidence.” Catharine MacKinnon, Feminism, Marxism, Method and the State: Toward a Feminist Jurisprudence, Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal ‘Thought, P. 870 Catharine MacKinnon, Feminism, Marxism, Method and the State: An ‘Agenda for Theory, 7 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 863 “Liberal jurisprudence that the law should reflect society and left jurisprudence that all law does or can dois reflect existing social relations Will emerge as two guises of objectivist epistemology. If objectivity is the epistemological stance of which women's sexual objectification is the social process, its imposition the paradigm of power in the male form, then the state will appear most relentless in imposing the male point of view when it comes closes to achieving its highest formal criterion of distanced aperspectivity.” Catharine MacKinnon, Feminism, Marxism, Method and the State: Toward a Feminis Jurisprudence, 8 Signs Journal ‘of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought. p. 886 Catharine MacKinnon, Feminism, Marxism, Method and the State: ‘Toward a Feminist Jurisprudence, Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal ‘Thought, P. 885 “when women are segregated in private, one at a time, a law of privacy will end to protect the right of men to be let alone,’ to oppress us one at Catharine MacKinnon, Feminism, Marxism, Method and the State: ‘Toward a Feminist Jurisprudence, 8 Signs Journal of Women in Culture‘Mackinnon and Marx ” and Society 3 (1982) in David Kennedy The Canon of American Legal ‘Thought, P. 885 28, Catharine MacKinnon, Feminism, Marxism, Method and the State: ‘Toward a Feminist Jurisprudence, 8 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal ‘Thought, p. 883 Catharine MacKinnon, Feminism, Marxism, Method and the State ‘Toward a Feminist Jurisprudence, 8 Signs Journal of Women in Culture and Society 3 (1982) in David Kennedy The Canon of American Legal Thought, P. 873 130, Mackinnon “has no sense of the problems with economist reformism, the need for a vanguard party or the precise intersection of national ‘oppeession with the organization of work.” MCS, Clarity on what gender is, (March 6, 1998) 31, “Feminist inquiry into these specific issues began with a broad ‘unmasking of the attitudes that legitimize and hide women’s status, the ideational envelop that contains women’s body: notions that women desire and provoke rape, thal girls’ experiences of incest are fantasies, that career women plot and advance by sexual parlays, that prostitutes are lustful that wife Beating expresses the intensity of love, Beneath each fof these ideas was revealed bare coercion and broad connections to ‘womans social definition asa sex.” See, Catharine A, Mackinnon, COLLECTIVE HARMS UNDER THE ALIEN TORT STATUTE: A CAUTIONARY NOTE ON CLASS: ‘ACTIONS, 6 ILSA J. Int & Comp. L. 567 (2000) 32, Interview with Catharine Mackinnon, Harvard Law School, October 2007. 133, Catharine A. MacKinnon, PROSTITUTION AND CIVIL RIGHTS, | Mich. 1.Gender & L. 13,31 (1993), 34. Catharine A. MacKinnon, PROSTITUTION AND CIVIL RIGHTS, | Mich, LGender & L. 13, 18-19 (1993). 35. Interview with Catharine Mackinnon, Harvard Law School, October, 2007. 36, “Another all-too-common practice is arresting accused prostitutes, women, while leting arrested customers, men, go with a citation or & sounds like it. Yet this, courts say is nt sex diserimination because male and female prostitutes are treated alike or because customers violate @ different, noncomparable, law from the one under which the women are charged. There are some men in prostitution, most (but not all) prosttuting as women, You can tell you have walked into the world of fender neutrality when the law treats men as badly as women when they do what mostly women do, and that makes treating women badly ‘non-sex-based.” Catharine A. MacKinnon, PROSTITUTION AND CIVIL RIGHTS, | Mich. J. Gender & L. 13, 18-19 (1993). 37, “most legislatures have gender-neutralized theie prostitution laws — without having done anything to gender-neutr realities.38. 9. 40, 44 2 ‘Marxism, Liberalism, and Feminism The cases that adjudicate equal protection challenges to sex: discriminatory enforcement of prostitution laws extend this rationale. Police usually send men to impersonate tricks [johns] in order to arrest prostitutes. Not surprisingly, many more women than men are arrested in this way. ‘The cases hold that this i not intentional sex discrimination but a good faith effort by the state to get at ‘the sellers of sex,” Catharine A. MacKinnon, PROSTITUTION AND CIVIL RIGHTS, 1 Mich. J. Gender &L.13, 1711993), “The gap between the promise of civil rights and the real lives of prostitutes isan abyss which swallows up prostituted women. To speak of prostitution and civil rights in one breath moves the two into one ‘world, at once exposing and narrowing the distance between them. ‘Women in prostitution are denied every imaginable civil right in every imaginable and unimaginable way, such that it makes sense to tunderstand prostitution as consisting in the denial of women's humani zno matter how humanity is defined. Its denied both through the social

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