purpose of criminal law essay

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Criminal law serves several purposes and benefits society in the following ways:

• Maintaining order . Criminal law provides predictability, letting people know what to expect from others. Without criminal law, there would be chaos and uncertainty.

Resolving disputes . The law makes it possible to resolve conflicts and disputes between quarreling citizens. It provides a peaceful, orderly way to handle grievances.

Protecting individuals and property . Criminal law protects citizens from criminals who would inflict physical harm on others or take their worldly goods. Because of the importance of property in capitalist America, many criminal laws are intended to punish those who steal.

Providing for smooth functioning of society . Criminal law enables the government to collect taxes, control pollution, and accomplish other socially beneficial tasks.

Safeguarding civil liberties . Criminal law protects individual rights.

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What Is Criminal Law and How to Write Criminal Law Essay

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A criminal law essay is a research paper or report based on a comprehensive review of criminal law regulations. Criminal law is a challenging field to specialize in with so many aspects: the state, court hearings, criminal records, rights of criminals, facts and figures. And on top of everything, writing criminal law essays with perfection is like fighting a case before becoming a lawyer. Students must go through a complete cycle of the process to finish their law degree.

A criminal law essay examines specific cases in which a legislative controversy arises. Criminal law, in particular, is an operational branch of state law that aids in the preservation of society’s safety and confidence. A significant amount of crime and violence threatens the balance and comfort of people’s lives in today’s world. Criminal lawyers are the people who take up such cases to regulate the sphere.

The variety of punishments demonstrates the negative consequences of illegal behaviors and how necessary it is for maintaining discipline and safety. Therefore, it is crucial to consider criminal law as a fundamental foundation for modernization and the provision of security and stability to the country’s citizens.

Law students are frequently asked to write essays, either on topics that have been assigned to them or on issues that they have chosen or in response to specific questions. Mainly in a law degree, the exam includes an essay section, meaning a student has to prepare for both the exam and the essay. In addition, they have to learn about the types of crime, criminal behavior, punishment and sentence period. Therefore, criminal law essay assignments are proposed to ensure students are familiar with their states and country’s laws and know how to apply them in a criminal case.

Even though law students are highly qualified and trained to take on any challenge, they sometimes need help with their studies. Unfortunately, students are left alone to fight the academic pressure which leads to a lot of stress. If you are in the same boat, you can reach out to us for law essay help and avail of professional service.

However, if the student wants to build a law essay from scratch, there will be different requirements depending on the university, and the type of essay students are writing. The first thing to constitute a first-class law essay is to gather all the information. Students must understand the differences between criminal law, criminology, legislation and the different types of criminal law. So, let’s learn about the types and what it takes to structure a criminal law essay.

Types of Criminal Law

Criminal law covers all sorts of crimes, but the crimes are mainly divided into two following types:

• Misdemeanor

Criminal Law – Felony

Severe criminal cases are recorded under this type of criminal law. The punishment for severely offensive cases, types of crimes and criminals is imprisonment for a lifetime or execution. Felony crimes include murder, arson, manslaughter, burglary, tax evasion, aggravated assault, kidnapping, fraud, blackmail, obstruction of justice, forgery, treason, etc.

Criminal Law – Misdemeanor

Misdemeanor type of criminal law looks after less serious crimes, and the punishment for misdemeanor crimes is lesser than a felony. The sentence or punishment such criminals have to face comes in terms of a fine or 6 months to a year in prison. Misdemeanor crimes include reckless driving, public intoxication, property destruction, petty theft, disorderly conduct, trespassing, etc.

Moreover, criminal law is divided into five other categories to recognize the crimes effectively.

Private or Individual Crimes such crimes are recorded when an individual harms another person on a personal level.

Immature Crimes  are such criminal acts in which the nearest suspect only helped the criminal in the crime or offensive acts that were never accomplished.

Property Crimes  are criminal cases involving interfering with another’s property.

Constitutional Crimes are the acts banned by the states, for example, drugs, alcohol, playing poker, or other societal issues.

Finance Crimes are also known as “white-collar” crimes. It mostly includes transferring illegal money to foreign bank accounts, frauds, embezzlement, tax evasion, blackmail, etc.

We’ve talked about the types and categories of crimes and criminal law. So, let’s jump into the depth of the law of crime and learn how we can structure a criminal law essay.

The Criminal Law Essay Structure

The structure of a simple criminal law essay is similar to another type of essay. However, the essay aims to influence individuals on a particular plan, and the paper helps the legislation regulate social behavior or limit whatever is threatening society. We are sure your professor must’ve taught you how to write a good persuasive essay . To help law students, we’ve penned down some guidelines to help you write a great criminal law essay. Also, you can hire a professional to help you with your criminal law essay. After all, your grades matter the most, don’t they?

·         Start Early on the Essay

It is crucial to start as early as possible because writing a criminal law essay is not an essay game. Waiting until the submission date only adds unnecessary stress and drama to your academic life. The more you’ll delay your essay, the less time you’ll have to write your essay. This will reflect in the completed work and will cost you your grades. So, start early and make sure you have time to add references to your essay and perfect your work with proofreading and editing.

·         Read, Analyze and then Deconstruct the Question

Do not start with your criminal law essay until you completely understand the question being asked. Instead, take some time to break the question down into sections and seek advice from your professors and professionals for law essay help. Again, it will be very helpful for you to have an expert by your side to guide you through the writing process.

·         Research and Investigate

Case or subject investigation is the most important and difficult part of writing a criminal law essay. The data you are taking to support your paper must come from a known and relevant source. The references should be up-to-date and reliable if you want to produce a first-class essay. The more authoritative a source is, the higher your score will be. When possible, choose primary over secondary materials.

·         Write an Effective Essay Introduction

An introduction is something that impresses the audience and makes them read your entire paper. If you have a loose introduction and the paper’s outline is not well-written, your readers will lose their interest. So, provide the readers with a statement, an answer to the problem, and a map that explains your essay’s motives. Your introduction should be detailed, not lengthy, meaning it should simply define the object of your paper but in simple language.

·         Counter-Argument to Your Statement

This will demonstrate that you have a broad understanding of the subject. The counter-arguments list the claims of other authors and explains why your paper is better and how your paper solves a social issue.

·         Conclude Your Criminal Law Essay

Mention all of the main points you’ve made in a few sentences. In your conclusion, reaffirm your answer to the law essay question to ensure that your statement is processed clearly.

We hope you have a fair understanding of criminal law essays and how it is constructed. But we still have some more information for you. So, let us talk about some topics and what it takes to come up with good criminal law essays if your professors don’t assign you a topic.

How to Come Up With Interesting Criminal Law Essay Topic Ideas

Choosing the right topic is the first step toward writing a criminal law essay because it determines the scope of the research. Usually, the professor or instructor provides students with the topic or argument statement as these essays are much more detailed than regular papers. However, if the professor allows you to choose your topic or argument statement, make sure you don’t just pick any topic.

You will have an opportunity to describe your point of view on something you strongly believe in, and your essay is one way to do so. The most effective criminal law essay writing tip for selecting a topic is considering its current relevance and your interest. First and foremost, you should review the entire course and highlight the most interesting criminal law areas and criminal cases studied during the period.

Going through the course and other research will assist you in narrowing your field of interest and selecting a topic. Your essay topic allows you to enrich or practice skills in specific areas. Also, it helps you consider the issue’s importance on a social level and its current status. Furthermore, the topic should either analyze current events, view case studies or look into the implementation of existing national legislation.

Moreover, if you’re having trouble deciding on a topic for your criminal law essay, you can pick one from the list below

• Human Rights Violations
• The Origins of Capital Punishment
• Distributive Justice and Criminal Justice
• Has Identity Theft Reached Its Peak?
• Witness Protection Program
• What Motivates People to Commit Crimes
• Aggravating and Mitigating Factors in Criminal Sentencing
• Types of Bail; Bail and Bonds
• Amendments for Crime Victims
• Receiving Protection for Testimony in a Criminal Case

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Purposes of Criminal Laws, Essay Example

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This paper addresses the purposes of criminal laws, in the context of Criminal Justice.  The paper is divided into three distinct parts (i) Introduction and Background (ii) The purpose of Criminal law, with emphasis on deterrence, punishment and retribution (iii) Concluding remarks considering how effective criminal law is in the US constitution.  The paper addresses the important question of – how effective are criminal laws in terms of applying measures of justice in the USA?

Introduction and Background

Criminal law may be considered as the foundation of the criminal justice legal system in the USA.  But all is important because it defines the legal steps that the police must follow, leading to an arrest.  Further, it defines the trial procedures in court and the subsequent penalties that may follow.  Although most people associate criminal law with violent crime like murder, robbery, rape, assault etc. nevertheless, each state has a different interpretation of this.  For example in Florida.  It is illegal to light in the ignited tobacco product in an elevator.  Alabama makes a wrestling unlawful.  In Louisiana, you risk 10 years in prison for stealing an alligator.  Despite the humorous overtones, this is a serious business in the criminal justice system is essential for the well-being of all US citizens.  The nature of “criminal law is such that a crime is whatever the Lord declares to be a criminal offense and publishers with a penalty.” (Lippman, 2006).

HG World-wide legal directory defines Criminal law as being ” Criminal Law or penal law, involves prosecution by the government of a person for an act that has been classified as a crime. It is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. There are four theories of criminal justice: punishment, deterrence, incapacitation, and rehabilitation. It is believed that by imposing sanctions for the crime, society can achieve justice and a peaceable social order.”  (HG.org, 2010).

The purpose of criminal law

The main purposes of criminal laws are to protect and serve its citizens.  Essentially there are two main functions: [1] to provide a means that expresses human or society morality and [2] to teach social boundaries that we all must live within and to punish those offenders who resort to criminal behaviour and reject these rules.  These procedures both safeguard and protect the Bill of Rights and the American Constitution.

Four theories of Criminal Justice Punishment

There are essentially four theories of Criminal Justice punishment:

• Punishment :   Punishment is essentially placed into two different classifications. The first of these being utilitarian or the means to deter or dissuade those from future wrong doings and the second retributive where it seeks to exact a suitable punishment for the crime committed.
• Deterrence :  May be considered a utilitarian punishment. ” Specific deterrence means that the punishment should prevent the same person from committing crimes. Specific deterrence works in two ways. First, an offender may be put in jail or prison to physically prevent her from committing another crime for a specified period. Second, this incapacitation is designed to be so unpleasant that it will discourage the offender from repeating her criminal behaviour”  (Legal Dictionary, 2010).
• Incapacitation : Relates to the concept of imprisonment of the offender and removing them from society where they cannot repeat the offense to society. It is a means of protecting society from the Criminal
• Rehabilitation : Relates to changing the behavioural pattern of the detainee whilst in prison.  The aim being to change the behaviour of the prisoner such that the offender may be released back into Society and continue to make a useful and meaningful contribution without reverting to criminal behaviour.

Concluding remarks

The criminal justice system in the USA is an essential part of the legal apparatus for maintaining law and  order in society.  It is necessary to have a set of legal standards and regulations to protect the majority of citizens from the minority that seek to disrupt and displaying violent and criminal behaviour to other members of society.  In addition, it also provides a means of transforming such criminal elements into law-abiding citizens and prevent the moral decline of society into a state of anarchy, where only the strong survive.

Works Cited

HG.org. (2010). Criminal Law – Guide to Criminal and Penal Law . Retrieved 7 8, 2010, from HG.org: http://www.hg.org/crime.html

Legal Dictionary. (2010). punishment . Retrieved 7 8, 2010, from Legal Dictionary: http://legal-dictionary.thefreedictionary.com/Punishment,+Criminal

Lippman. (2006). The nature purpose and constitutional context pf criminal law. In Lippman, The nature purpose and constitutional context pf criminal law (pp. 1-23). New York: Sage Publications.

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1.5 The Purposes of Punishment

Learning objective.

• Ascertain the effects of specific and general deterrence, incapacitation, rehabilitation, retribution, and restitution.

Punishment has five recognized purposes: deterrence , incapacitation , rehabilitation , retribution , and restitution .

Specific and General Deterrence

Deterrence prevents future crime by frightening the defendant or the public . The two types of deterrence are specific and general deterrence . Specific deterrence applies to an individual defendant . When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment. General deterrence applies to the public at large. When the public learns of an individual defendant’s punishment, the public is theoretically less likely to commit a crime because of fear of the punishment the defendant experienced. When the public learns, for example, that an individual defendant was severely punished by a sentence of life in prison or the death penalty, this knowledge can inspire a deep fear of criminal prosecution.

Incapacitation

Incapacitation prevents future crime by removing the defendant from society. Examples of incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.

Rehabilitation

Rehabilitation prevents future crime by altering a defendant’s behavior. Examples of rehabilitation include educational and vocational programs, treatment center placement, and counseling. The court can combine rehabilitation with incarceration or with probation or parole. In some states, for example, nonviolent drug offenders must participate in rehabilitation in combination with probation, rather than submitting to incarceration (Ariz. Rev. Stat., 2010). This lightens the load of jails and prisons while lowering recidivism , which means reoffending.

Retribution

Retribution prevents future crime by removing the desire for personal avengement (in the form of assault, battery, and criminal homicide, for example) against the defendant. When victims or society discover that the defendant has been adequately punished for a crime, they achieve a certain satisfaction that our criminal procedure is working effectively, which enhances faith in law enforcement and our government.

Restitution

Restitution prevents future crime by punishing the defendant financially . Restitution is when the court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress. It can also be a fine that covers some of the costs of the criminal prosecution and punishment.

Figure 1.4 Different Punishments and Their Purpose

Key Takeaways

• Specific deterrence prevents crime by frightening an individual defendant with punishment. General deterrence prevents crime by frightening the public with the punishment of an individual defendant.
• Incapacitation prevents crime by removing a defendant from society.
• Rehabilitation prevents crime by altering a defendant’s behavior.
• Retribution prevents crime by giving victims or society a feeling of avengement.
• Restitution prevents crime by punishing the defendant financially.

Answer the following questions. Check your answers using the answer key at the end of the chapter.

• What is one difference between criminal victims’ restitution and civil damages?
• Read Campbell v. State , 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the restitution award was too high? Did the Texas Court of Criminal Appeals agree with the defendant’s claim? The case is available at this link: http://scholar.google.com/scholar_case?case=11316909200521760089&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

Ariz. Rev. Stat. §13-901.01, accessed February 15, 2010, http://law.justia.com/arizona/codes/title13/00901-01.html .

Criminal Law Copyright © 2015 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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2 Motive and Criminal Liability

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Contrary to conventional wisdom, this chapter argues that the motive of the defendant is and ought to be relevant to his criminal liability. It attempts to show that motives are important to liability according to any philosophically plausible conception of the nature of motives. It discusses several respects in which motives are relevant to the substantive criminal law and traces some normative implications of the author's thesis.

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Whodunit solving the mystery of writing a first-rate criminal law essay exam.

I was leaving the post office one day and I saw a license plate that was an acronym for Nancy Drew. I stopped to admire the plate because it immediately took me back to when I was young and would voraciously read Nancy Drew mystery novels. It reminded me that reading the books taught me how to solve mysteries. As a civil litigation attorney, I regularly apply that skill in my practice because, as I go from one case to the next, I solve one mystery at a time.  

Normally, the mystery is the extent of the wrongdoing by the opposing party. However, sometimes it is discovering the relevant facts that my client conveniently failed to share with me. Tapping into your inner sleuth will assist you with learning to write first-rate Criminal Law exam answers as well as answers in any other type of law school exam you may encounter.

Prepare to Solve Your Mystery

Preparation is essential to solving the mystery of writing a Criminal Law exam. As a law student, your preparation commences with reading and briefing all the assigned cases. This teaches you the law and how to reason. Further, it assists with preparing your study outline for the class. It also teaches you the discipline of IRAC, which is fundamental to law exam writing. 

Fleming’s is in a powerful position to assist with your law school exam preparation - as demonstrated by one of our law students receiving the only known perfect score on a Criminal Law Bar exam. The student who wrote the answer implemented what Fleming’s teaches when answering a Criminal Law exam, and the Bar Examiners rewarded him with a perfect 100 score for his presentation.  

So that you can see Fleming’s law exam methods and techniques at work for yourself, I recommend reading our recent article about this student’s impressive accomplishment: 

Bar Examiners Give Fleming’s Law Student a Perfect Score on His Essay Exam Answer  

The question, along with the student’s perfectly scored answer, is appended at the end of the article. You, too, can achieve this result with Fleming’s at your side.

Every Sleuth Needs a Partner

As Nancy Drew had her Bess Marvin, every sleuth needs a partner. For law students, legal study supplements are your Bess Marvin sidekick. Fleming’s has a wide array of supplements that can assist law students with course substantive law outlines as well as fail-safe methods and techniques for law exam writing .  

I highly recommend Fleming’s Sail Through Law School with The Exam Solution® for Criminal Law because it provides a four-hour substantive law lecture, a substantive law outline, and three essay exams with sample California Bar exam answers. This is all you need to tie together everything about the subject that you are learning in the classroom. Reviewing Bar exam answers is invaluable because they assist with how to format, weigh issues, and write persuasive analysis. One of my former students conveyed that the resources from this series really helped her prepare for her recent midterms.  

Identify the Suspects

Now that you are ready to commence your law exam writing, you must start with identifying your suspects. Therefore, the first thing you do is read the call of the question. Read it at least twice because it is imperative to understand the scope of your investigation. You must headnote and write on each call of the question separately because failure to do so will result in a failing grade. 

Examine the Crime Scene

The next step of your investigation is to examine the crime scene, which is the fact pattern for the exam. Read it twice – concentrate solely on the facts. Read it again to prepare your issue outline as outlining is imperative to your success on the exam. It tells you how many issues you have to write on, which ones are major and minor, and how to allocate your writing time so you do not run short in finishing before time is called.

Map Out the Scope of Your Investigation

When writing law school or California Bar exam answers, you must write on the issues in the order that they are spotted in the fact pattern. You strategize this when outlining the exam, which is why outlining is so crucial to your success. 

When drafting your outline make four columns, one for each part of IRAC, to ensure that you write your answer in an orderly manner - including all the required crimes and defenses. 

The first column is for the issue, the next for the rule, then the facts for your analysis/application, and the last column for the conclusion. You should abbreviate whenever possible to keep your outline time between 15 – 20 minutes.  

The example below for outlining the issue of robbery is taken from Fleming’s Writing Workbook p. 43. 

Now that you have examined the crime scene and created your outline, you are ready to write your essay answer. Think about what you want to say before beginning to write. This will help you formulate your thoughts and prevent you from rambling once you get started.

Write Your Investigation Report

A successful answer applies the relevant facts to each element of the rule to persuade the reader as to why the crime or defense succeeds or fails. What you are trying to do is answer the “why” or “why not” regarding each element of the rule, using the facts from the exam. 

As an initial matter, you must weigh the issues to ensure you have enough time for major issues such as homicide. A classic Criminal Law California Bar exam will contain a number of crimes and a homicide at the end. Generally, when there is a homicide, you will need 15 – 20 minutes to write on it because you must write on each required issue/subpart. If you run out of time to write a full homicide analysis, you will likely fail the exam because it is a heavily weighted issue. 

A superior answer will analyze the arguments of each party. You want to argue on behalf of the State first because it is prosecuting the case. Then you write the counterarguments for the defendant. 

Writing both sides will set you apart and increase your score because the majority of students only write on behalf of the prosecution. Developing this skill is essential as an attorney because you must always anticipate the arguments of the opposing party. 

There are certain issues that require writing on the common law rule as well as the modern rule or Model Penal Code. Burglary is a classic example. You must analyze common law burglary as well as the modern law distinctions because the burden of proof is lower. When writing on the insanity issue, you must always write on all four insanity excuses.  

You must write a one-sentence conclusion regarding each issue on the exam as well as an overall conclusion if required by the call of the question.

Justice Is Served

Writing a first-rate Criminal Law exam takes hard work and discipline. This can be achieved by stepping into the exam to spot and solve each mystery of whether or not the crime or defense succeeds or fails. 

Justice will be served when you write a first-class answer and receive your desired passing score. This will put you one step closer to going from law student to lawyer. 

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MIA   >  Archive   >  Pashukanis

Evgeny Pashukanis

Marksistskaia teoriia gosudarstva i prava , pp.9-44 in E. B. Pashukanis (ed.), Uchenie o gosudarstve i prave (1932), Partiinoe Izd., Moscow. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.273-301. Translated by Peter B. Maggs . Copyright © Peter B. Maggs. Published here by kind permission of the translator. Downloaded from home.law.uiuc.edu/~pmaggs/pashukanis.htm Marked up by Einde O’Callaghan for the Marxists’ Internet Archive .

Introductory Note

In the winter of 1929-1930, during the first Five Year Plan, the national economy of the USSR underwent dramatic and violent ruptures with the inauguration of forced collectivization and rapid heavy industrialization. Concomitantly, it seemed, the Party insisted on the reconstruction and realignment of the appropriate superstructures in conformity with the effectuation of these new social relations of production. In this spirit Pashukanis was no longer criticized but now overtly attacked in the struggle on the “legal front”. In common with important figures in other intellectual disciplines, such as history, in late 1930 Pashukanis undertook a major self-criticism which was qualitatively different from the incremental changes to his work that he had produced earlier. During the following year, 1931, Pashukanis outlined this theoretical reconstruction in his speech to the first conference of Marxist jurists, a speech entitled Towards a Marxist-Leninist Theory of Law . The first results appeared a year later in a collective volume The Doctrine of State and Law .

Chapter I of this collective work is translated below, The Marxist Theory of State and Law , and was written by Pashukanis himself It should be noted that this volume exemplifies the formal transformations which occurred in Soviet legal scholarship during this heated period. Earlier, Pashukanis and other jurists had authored their own monographs; the trend was now towards a collective scholarship which promised to maximize individual safety. The source of authority for much of the work that ensued increasingly became the many expressions of Stalin’s interpretation of Bolshevik history, class struggle and revisionism, most notably his Problems of Leninism . Last, but not least, the language and vocabulary of academic discourse in the 1920s had been rich, open-ended and diverse, and varied tremendously with the personal preferences of the individual author; this gave way to a standardized and simplified style of prose devoid of nuance and ambiguity, and which was very much in keeping with the new theoretical content which comprised official textbooks on the theory of state and law. The reader will perhaps discover that The Marxist Theory of State and Law is a text imbued with these tensions. Pashukanis’ radical reconceptualization of the unity of form and content, and of the ultimate primacy of the relations of production, is without doubt to be preferred to his previous notions. But this is a preference guided by the advantages of editorial hindsight, and we feel that we cannot now distinguish between those reconceptualizations which Pashukanis may actually have intended and those which were produced by the external pressures of political opportunism.

CHAPTER I Socio-economic Formations, State, and Law

1. the doctrine of socio-economic formations as a basis for the marxist theory of state and law.

The doctrine of state and law is part of a broader whole, namely, the complex of sciences which study human society. The development of these sciences is in turn determined by the history of society itself, i.e. by the history of class struggle.

It has long since been noted that the most powerful and fruitful catalysts which foster the study of social phenomena are connected with revolutions. The English Revolution of the seventeenth century gave birth to the basic directions of bourgeois social thought, and forcibly advanced the scientific, i.e. materialist, understanding of social phenomena.

It suffices to mention such a work as Oceana – by the English writer Harrington, and which appeared soon after the English Revolution of the seventeenth century – in which changes in political structure are related to the changing distribution of landed property. It suffices to mention the work of Barnave – one of the architects of the great French Revolution – who in the same way sought explanations of political struggle and the political order in property relations. In studying bourgeois revolutions, French restorationist historians – Guizot, Mineaux and Thierry – concluded that the leitmotif of these revolutions was the class struggle between the third estate (i.e. the bourgeoisie) and the privileged estates of feudalism and their monarch. This is why Marx, in his well-known letter to Weydemeyer, indicates that the theory of the class struggle was known before him. “As far as I am concerned”, he wrote,

no credit is due to me for discovering the existence of classes in modern society, or the struggle between them. Long before me bourgeois historians had described the historical development of this class struggle, and bourgeois economists the economic anatomy of the classes.

What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical forms of struggle in the development of production ...; (2) that the class struggle inevitably leads to the dictatorship of the proletariat; (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and the establishment of a classless society. [1]

[ Section 2 omitted – eds. ]

  Top of the page  

3. The class type of state and the form of government

The doctrine of socio-economic formations is particularly important to Marx’s theory of state and law, because it provides the basis for the precise and scientific delineation of the different types of state and the different systems of law.

Bourgeois political and juridical theorists attempt to establish a classification of political and legal forms without scientific criteria; not from the class essence of the forms, but from more or less external characteristics. Bourgeois theorists of the state, assiduously avoiding the question of the class nature of the state, propose every type of artificial and scholastic definition and conceptual distinction. For instance, in the past, textbooks on the state divided the state into three “elements”: territory, population and power.

Some scholars go further. Kellen – one of the most recent Swedish theorists of the state – distinguishes five elements or phenomena of the state: territory, people, economy, society and, finally, the state as the formal legal subject of power. All these definitions and distinctions of elements, or aspects of the state, are no more than a scholastic game of empty concepts since the main point is absent: the division of society into classes, and class domination. Of course, the state cannot exist without population, or territory, or economy, or society. This is an incontrovertible truth. But, at the same time, it is true that all these “elements” existed at that stage of development when there was no state. Equally, classless communist society – having territory, population and an economy – will do without the state since the necessity of class suppression will disappear.

The feature of power, or coercive power, also tells one exactly nothing. Lenin, in his polemic of the 1890s with Struve asserted that: “he most incorrectly sees the distinguishing feature of the state as coercive power. Coercive power exists in every human society – both in the tribal structure and in the family, but there was no state.” And further, Lenin concludes: “The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated. Obviously, no one could use the term ‘State’ in reference to a community in which the ‘organization of order’ is administered in turn by all of its members.” [2]

Struve’s position, according to which the distinguishing feature of a state is coercive power, was not without reason termed “professorial” by Lenin. Every bourgeois science of the state is full of conclusions on the essence of this coercive power. Disguising the class character of the state, bourgeois scholars interpret this coercion in a purely psychological sense. “For power and subordination”, wrote one of the Russian bourgeois jurists (Lazarevsky), “two elements are necessary: the consciousness of those exercising power that they have the right to obedience, and the consciousness of the subordinates that they must obey.”

From this, Lazarevsky and other bourgeois jurists reached the following conclusion: state power is based upon the general conviction of citizens that a specific state has the right to issue its decrees and laws. Thus, the real fact-concentration of the means of force and coercion in the hands of a particular class-is concealed and masked by the ideology of the bourgeoisie. While the feudal landowning state sanctified its power by the authority of religion, the bourgeoisie uses the fetishes of statute and law. In connection with this, we also find the theory of bourgeois jurists-which now has been adopted in its entirety by the Social Democrats whereby the state is viewed as an agency acting in the interests of the whole society. “If the source of state power derives from class”, wrote another of the bourgeois jurists (Magaziner), “then to fulfil its tasks it must stand above the class struggle. Formally, it is the arbiter of the class struggle, and even more than that: it develops the rules of this struggle.”

It is precisely this false theory of the supra-class nature of the state that is used for the justification of the treacherous policy of the Social Democrats. In the name “of the general interest”, Social Democrats deprive the unemployed of their welfare payments, help in reducing wages, and encourage shooting at workers’ demonstrations.

Not wishing to recognize the basic fact, i.e. that states differ according to their class basis, bourgeois theorists of the state concentrate all their attention on various forms of government. But this difference by itself is worthless. Thus, for instance, in ancient Greece and ancient Rome we have the most varied forms of government. But all the transitions from monarchy to republic, from aristocracy to democracy, which we observe there, do not destroy the basic fact that these states, regardless of their different forms, were slave-owning states. The apparatus of coercion, however it was organized, belong to the slave-owners and assured their mastery over the slaves with the help of armed force, assured the right of the slave-owners to dispose of the labour and personality of the slaves, to exploit them, to commit any desired act of violence against them.

Distinguishing between the form of rule and the class essence of the state is particularly important for the correct strategy of the working class in its struggle with capitalism. Proceeding from this distinction, we establish that to the extent that private property and the power of capital remain untouchable, to this extent the democratic form of government does not change the essence of the matter. Democracy with the preservation of capitalist exploitation will always be democracy for the minority, democracy for the propertied; it will always mean the exploitation and subjugation of the great mass of the working people. Therefore theorists of the Second International such as Kautsky, who contrast “democracy” in general with “dictatorship”, entirely refuse to consider their class nature. They replace Marxism with vulgar legal dogmatism, and act as the scholarly champions and lackeys of capitalism.

The different forms of rule had already arisen in slave-owning society. Basically, they consist of the following types: the monarchic state with an hereditary head, and the republic where power is elective and where there are no offices which pass by inheritance. In addition, aristocracy, or the power of a minority (i.e. a state where participation in the administration of the state is limited by law to a definite and rather narrow circle of privileged persons) is distinguished from democracy (or, literally, the rule of the people), i.e. a state where by law all take part in deciding public affairs either directly or through elected representatives. The distinction between monarchy, aristocracy and democracy had already been established by the Greek philosopher Aristotle in the fourth century. All the modern bourgeois theories of the state could add little to this classification.

Actually the significance of one form or another can be gleaned only by taking into account the concrete historical conditions under which it arose and existed, and only in the context of the class nature of a specific state. Attempts to establish any general abstract laws of the movement of state forms – with which bourgeois theorists of the state have often been occupied – have nothing in common with science.

In particular, the change of the form of government depends on concrete historical conditions, on the condition of the class struggle, and on how relationships are formed between the ruling class and the subordinate class, and also within the ruling class itself

The forms of government may change although the class nature of the state remains the same. France, in the course of the nineteenth century, and after the revolution of 1830 until the present time, was a constitutional monarchy, an empire and a republic, and the rule of the bourgeois capitalist state was maintained in all three of these forms. Conversely, the same form of government (for instance a democratic republic) which was encountered in antiquity as one of the variations of the slave-owning state, is in our time one of the forms of capitalist domination.

Therefore, in studying any state, it is very important primarily to examine not its external form but its internal class content, placing the concrete historical conditions of the class struggle at the very basis of scrutiny.

The question of the relationship between the class type of the state and the form of government is still very little developed. In the bourgeois theory of the state this question not only could not be developed, but could not even be correctly posed, because bourgeois science always tries to disguise the class nature of all states, and in particular the class nature of the capitalist state. Often therefore, bourgeois theorists of the state, without analysis, conflate characteristics relating to the form of government and characteristics relating to the class nature of the state.

As an example one may adduce the classification which is proposed in one of the newest German encyclopaedias of legal science.

The author [Kellreiter] distinguishes: (a) absolutism and dictatorship, and considers that the basic characteristic of these forms is that state powers are concentrated in the hands of one person. As an example, he mentions the absolute monarchy of Louis XIV in France, tsarist autocracy in Russia and the dictatorial power which was invested by the procedure of extraordinary powers in the one person, for instance the president of the German Republic on the basis of Art.48 of the Weimar Constitution; (b) constitutionalism, characterized by the separation of powers, their independence and their checks and balances, thereby weakening the pressure exerted by state power on the individual (examples: the German Constitution before the 1918 revolution, and the USA, where the President and Congress have independent powers); (c) democracy, whose basic premise is monism of power and a denial in principle of the difference between power and the subject of power (popular sovereignty, exemplified by the German Republic); and (d) the class-corporative state and the Soviet system where as opposed to formal democracy, the people appear not as an atomized mass of isolated citizens but as a totality of organized and discrete collectives. [3]

This classification is very typical of the confusion which bourgeois scholars consciously introduce into the question of the state. Starting with the fact that the concept of dictatorship is interpreted in the formal legal sense, deprived of all class content, the bourgeois jurist deliberately avoids the question: the dictatorship of which class and directed against whom ? He blurs the distinction between the dictatorship of a small group of exploiters and the dictatorship of the overwhelming majority of the working people; he distorts the concept of dictatorship, for he cannot avoid defining it without a relevant law or paragraph, while “the scientific concept of dictatorship means nothing less than power resting directly upon force, unlimited by laws, and unconstricted by absolute rules”. [4] Further it is sufficient to indicate, for instance, that under the latter heading the author includes: (a) a new type of state, never encountered before in history, where power belongs to the proletariat; (b) the reactionary dreams of certain professors and so-called guild socialists, about the return to the corporations and shops of the Middle Ages; and, finally (c) the fascist dictatorship of capital which Mussolini exercises in Italy.

This respected scholar consciously introduces confusion, consciously ignores the concrete historical conditions under which the working people actually can exercise administration of the state, acting as organized collectives. But such conditions are only the proletarian revolution and the establishment of the dictatorship of the proletariat.

4. The class nature of law

Bourgeois science confuses the question of the essence of law no less than the question of the state. Here, Marxism-Leninism opposes the diverse majority of bourgeois, petit bourgeois and revisionist theories which, proceeding from the explanation of the historical and class nature of law, consider the state as a phenomenon essential to every human society. They thus transform law into a supra-historical category.

It is not surprising, therefore, that bourgeois philosophy of law serves as the main source for introducing confusion both into the concept of law and into the concept of state and society.

The bourgeois theory of the state is 90% the legal theory of the state. The unattractive class essence of the state, most often and most eagerly, is hidden by clever combinations of legal formalism, or else it is covered by a cloud of lofty philosophical legal abstractions.

The exposure of the class historical essence of law is not, therefore, an unimportant part of the Marxist-Leninist theory of society, of the state and of law.

The most widespread approach of bourgeois science to the solution of the question of the essence of law consists in the fact that it strives to embrace, through the concept of law, the existence of any consciously ordered human relationships, of any social rules, of any phenomenon of social authority or social power. Thus, bourgeois scholars easily transfer law to pre-class society, find it in the pre-state life of primitive tribes, and conclude that communism is unthinkable without law. They turn law as an empty abstraction into a universal concept devoid of historical content. Law, for bourgeois sociologists, becomes an empty form which is unconnected with concrete reality, with the relationships of production, with the antagonistic character of these relationships in class society, [and] with the presence of the state as a particular apparatus of power in the hands of the ruling class.

Representatives of idealist philosophy of law go still further. They begin with “the idea of law”, which stands above social history as something eternal, immutable and independent of space and time.

Here, for example, is the conclusion of one of the most important representatives of the ideological neo-Kantian philosophy of law – Stammler:

Through all the fates and deeds of man there extends a single unitary idea, the idea of law. All languages have a designation for this concept, and the direction of definitions and judgements expressed by it amount, upon careful study, to one and the same meaning.

Having made this discovery, it cost Stammler nothing “to prove” that regardless of the difference between the “life and activity of nations” and “the objects of legal consideration”, we observe the unity of the legal idea and its equal appearance and intervention.

This professorial rubbish is presented without the least attempt at factual proof In actuality it would be rather difficult to explain how this “unity of the legal idea and its equal appearance” gave birth to the laws of the Twelve Tablets of slave-owning Rome, the serf customs of the Middle Ages, the declarations of rights of capitalist democracies, and our Soviet Constitution.

But Stammler is not embarrassed by the scantiness of factual argument. He deals just as simply with the proof of the eternity of law. He begins from those legendary Cyclops described in the Odyssey; even these mythical wonders were the fathers of families and, according to Stammler, could not do without law. On the other hand, however, while Stammler is ready to admit that the pigmy tribes of Africa and the Eskimos did not know the state, he simply denies as deceptive all reports about peoples not knowing law. Moreover, Stammler immediately replaces the concrete historical consideration of the question with scholastic formal-logical tightrope walking, which among bourgeois professors is presented as a methodological precision. We present these conclusions, for they typify the whole trend and, moreover, are most fashionable in the West.

Stammler proposes that the concrete study of legal phenomena is entirely unable to provide anything in the understanding of the essence of law. For if we assign any phenomenon to the list of legal ones, this means that we already know that this is law and what its characteristics are. The definition of law which precedes the facts presupposes knowledge of what is law and what is not law. Accordingly, in the opinion of Stammler, in considering the concept of law, it is necessary to exclude all that is concrete and encountered in experience and to understand “that the legal idea is a purely methodological means for the ordering of spiritual life”.

This conclusion, which confronts one with its scholasticism, is nothing other than a Kantian ideological thesis embodied in the context of Stammler’s legal stupidity. It shows that the so-called forms of knowledge do not express the objective characteristics of matter, are determined a priori, and precede all human experience and its necessary conditions.

Having turned law into a methodological idea, Stammler tries to locate it not in the material world where everything is subordinate to the law of cause and effect, but in the area of goals. Law, according to Stammler, is a definition which proceeds not from the past (from cause to effect), but from the future (from goal to means). Finally, adding that law deals not with the internal procedure of thoughts as such, but with human interaction, Stammler gives this agonizing and thoroughly scholastic definition:

The concept of law is a pure form of thought. It methodically divides the endlessly differentiated material of human desires apprehended by the senses, and defines it as an inviolable and independent connecting will.

This professorial scholasticism has the attractive feature for the bourgeoisie that verbal and formalistic contrivances can hide the ugly reality of [their] exploiting society and exploiting law.

If law is “a pure form of thought”, then it is possible to avoid the ugly fact that the capitalist law of private property means the misery of unemployment, poverty and hunger for the proletarian and his family; and that in defence of this law stand police armed to the teeth, fascist bands, hangmen and prison guards; and that this law signifies a whole system of coercion, humiliation and oppression in colonies.

Such theories allow the disguising of the fact that the class interest of the bourgeoisie lies at the basis of bourgeois law. Instead of class law, philosophers such as Stammler dream up abstractions, “pure forms”, general human “ideas”, “whole and durable bonds of will” – and other entirely shameless things.

This philosophy of law is calculated to blunt the revolutionary class consciousness of the proletariat, and to reconcile it with bourgeois society and capitalist exploitation.

It is not without reason that the social fascists speak out as such zealous exponents of neo-Kantianism; it is not without reason that Social Democratic theorists on questions of law largely subscribe to neo-Kantian philosophy and re-hash the same Stammler in different ways.

In our Soviet legal literature, a rather wide dissemination has been achieved by bourgeois legal theories. In particular, there have been attempts to spread the idealist teaching of Stammler in the works of Pontovich and Popov-Ladyzhensky. The criticism and unmasking of this eructation is necessary for the purpose of eradicating this bourgeois ideological infection.

Thus, we know that the state is an historical phenomenon limited by the boundaries of class society. A state is a machine for the maintenance of the domination of one class over another. It is an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion. Until the appearance of classes the state did not exist. In developed communism there will be no state.

In the same way as the state, law is inseparably tied to the division of society into classes. Every law is the law of the ruling class. The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which in exploitative society, one part of the people can appropriate to itself the unpaid labour of another.

The form of exploitation determines the typical features of a legal system. In accordance with the three basic socio-economic formations of class society, we have three basic types of legal superstructure: slave-owning law, feudal law and bourgeois law. This of course does not exclude concrete historical national differences between each of the systems. For instance, English law is distinguished by many peculiarities in comparison with French bourgeois law as contained in the Napoleonic Code . Likewise, we do not exclude the presence of survivals of the past – transitional or mixed forms – which complicate the concrete picture.

However, the essential and basic – that which provides the guiding theme for the study of different legal institutions – is the difference between the position of the slave, the position of the serf and the position of the wage labourer. The relationship of exploitation is the basic lynchpin, around which all other legal relationships and legal institutions are arranged. From this it follows that the nature of property has decisive significance for each system of law. According to Lenge, the brilliant and cynical reactionary of the eighteenth century, the spirit of the laws is property.

5. Law as an historical phenomenon: definition of law

The appearance and withering away of law, similar to the appearance and withering of the state, is connected with two extremely important historical limitations. Law (and the state) appears with the division of society into classes. Passing through a long path of development, full of revolutionary leaps and qualitative changes, law and the state will wither away under communism as a result of the disappearance of classes and of all survivals of class society.

Nevertheless, certain authors, who consider themselves Marxists, adopt the viewpoint that law exists in pre-class society, that in primitive communism we meet with legal forms and legal relationships. Such a point of view is adopted for instance by Reisner. Reisner gives the term “law” to a whole series of institutions and customs of tribal society: marriage taboos and blood feud, customs regulating relationships between tribes, and customs relating to the use of the means of production belonging to a tribe. Law in this manner is transformed into an eternal institution, inherent to all forms of human society. From here it is just one step to the understanding of law as an eternal idea; and Reisner in essence leans towards such an understanding.

This viewpoint of course fundamentally contradicts Marxism. The customs of a society not knowing class divisions, property inequality and exploitation, differ qualitatively from the law and the statutes of class society. To categorize them together means to introduce an unlikely confusion. Every attempt to avoid this qualitative difference inevitably leads to scholasticism, to the purely external combination of phenomena of different types, or to abstract idealist constructs in the Stammlerian spirit.

We should not be confused by the fact that Engels, in The Origin of the Family, Private Property and the State , uses the expression “the eternal law”; or, that he cites, without particular qualification, Morgan’s description of the member of a tribal community as having “equality of rights”, and of a person violating tribal customs as having placed himself “outside the law”.

It is clear that the terms “right” and “law” are used here not in their direct sense, but by analogy. This does not mean, however, that in classless society we will be dealing only with purely technical rules. Such an argument was put forward by Stuchka in his dispute with Reisner. To assign the customs and the norms of pre-class society to the area of technology would mean to give the concept of technology a very extended and undefined sense. Marriage prohibitions, customs relating to the organization of the tribe, the power of the elders, blood feud etc. – all this of course is not technology and not technical methods, but the customs and norms of social order. The content and character of these customs corresponded of course to the level of productive forces and the production relationships erected on it. These social forms should be considered as a superstructure upon the economic base. But the basic qualitative difference between this superstructure and the political and legal superstructures of class society, consists in the absence of property inequality, exploitation, and organized class coercion.

While Marxism strives to give a concrete historical meaning to law, the characteristic feature of bourgeois philosophers of law is, on the contrary, the conclusion that law in general is outside classes, outside any particular socio-economic formation. Instead of deriving a concept of law from the study of historical facts, bourgeois scholars are occupied with the concoction of theories and definitions from the empty concept or even the word “law”.

We already saw how Stammler, with the help of scholastic contrivances, tries to show that concrete facts have no significance for the definition of law. We, however, say the opposite. It is impossible to give a general definition of law without knowing the law of slave-owning, feudal and capitalist societies. Only by studying the law of each of these socio-economic formations can we identify those characteristics which are in fact most general and most typical. In doing so we must not forget Engels’ warning to those who tend to exaggerate the significance of these general definitions.

For example, in Chapter VI of the first part of Anti-Dühring , having given a definition of life, Engels speaks of the inadequacy of all definitions because they are necessarily limited to the most general and simplistic areas. In the preface to Anti-Dühring , Engels formulated this thought still more clearly, indicating that “the only real definition is the development of the essence of the matter, and that is not a definition”. However, Engels at once states that for ordinary practical use, definitions which indicate the most general and characteristic features of a category are very convenient. We cannot do without them. It is also wrong to demand more from a definition than it can give; it is wrong to forget the inevitability of its insufficiency.

These statements by Engels should be kept in mind in approaching any general definition, including a definition of law. It is necessary to remember that it does not replace, and cannot replace, the study of all forms and aspects of law as a concrete historical phenomenon. In identifying the most general and characteristic features we can define law as the form of regulation and consolidation of production relationships and also of other social relationships of class society; law depends on the apparatus of state power of the ruling class, and reflects the interests of the latter.

This definition characterizes the role and significance of law in class society. But it is nevertheless incomplete. In contradistinction to all normative theories – which are limited to the external and formal side of law (norms, statutes, judicial positions etc.) – Marxist-Leninist theory considers a law as a unity of form and content. The legal superstructure comprises not only the totality of norms and actions of agencies, but the unity of this formal side and its content, i.e. of the social relationships which law reflects and at the same time sanctions, formalizes and modifies. The character of formalization does not depend on the “free will of the legislator”; it is defined by economics, but on the other hand the legal superstructure, once having arisen, exerts a reflexive effect upon the economy.

This definition stresses three aspects of the matter. First is the class nature of law: every law is the law of the ruling class. Attempts to consider law as a social relationship which transcends class society, lead either to superficial categorization of diverse phenomena, or to speculative idealistic constructs in the spirit of the bourgeois philosophy of law. Second is the basic and determinant significance of production relationships in the content that is implemented by law. Class interests directly reflect their relationship to the means of production. Property relationships occupy the prominent place in the characterization of a specific legal order. Communist society, where classes disappear, where labour becomes the primary want, where the effective principle will be from each according to his abilities, to each according to his needs: this does not require law. The third aspect consists of the fact that the functioning of a legal superstructure demands a coercive apparatus. When we say that social relationships have assumed a legal expression, this means inter alia that they have been given a coercive nature by the state power of the ruling class. Withering away of the law can only occur simultaneously with the withering away of the state.

Relationships which have received legal expression are qualitatively different from those relationships which have not received this expression. The form of this expression may be different, as was indicated by Engels [5] ; it may sometimes be good and sometimes be bad. It may support the progressive development of these relationships or, on the contrary, retard them. Everything depends on whether power is in the hands of a revolutionary or a reactionary class. Here the real significance of the legal superstructure appears. However, the degree of this reality is a question of fact; it can be determined only by concrete study and not by any a priori calculations. Bourgeois jurists characteristically concentrate their attention on form, and utterly ignore content. They turn their backs on life and actual history. As Engels showed, “they consider public and private law as independent areas, which have their own independent development and which must and may be subjected to independent systematic elaboration by the consistent elimination of all internal contradictions.” [6]

Bourgeois jurists usually define law as the totality of norms to which a state has given coercive power. This view of law typifies so-called legal positivism. The most consistent representatives of this trend are the English jurists: of the earliest Blackstone (eighteenth century), and thereafter Austin. In other European countries legal positivism also won itself a dominant position in the nineteenth century, because the bourgeoisie either gained state power or everywhere achieved sufficient influence in the state so as not to fear the identification of law with statute. At the same time nothing was better for legal professionals, for judges, [and] for defence counsel since this definition fully satisfied their practical needs. If law in its entirety was the complex of orders proceeding from the state, and consolidated by sanction in the case of disobedience, then the task of jurisprudence was defined with maximum clarity. The work of the jurist, according to the positivists, did not consist in justifying law from some external point of view – philosophers were occupied with this; the task of the jurists did not include explaining from where a norm emerged, and what determined its content – this was the task of political scientists and sociologists. The role of the jurist remained the logical interpretation of particular legal provisions, the establishment of an internal logical connection between them, combining them into larger systematic units in legal institutions, and finally in this way the creation of a system of law.

The definition of law as the totality of norms is the starting point for supporting the so-called dogmatic method. This consists of using formal logical conclusions in order to move from particular norms to more general concepts and back, proceeding from general positions to propose the solution of concrete legal cases or disputes. It is obvious that the practical part of this role developing especially luxuriantly in the litigious circumstances of bourgeois society – has nothing in common with a scientific theory of law. Applications of so-called legal logic are not only theoretically fruitless, they are not only incapable of revealing the essence of law and thus of showing its connection with other phenomena-with economics, with politics, with class struggle – but they are also harmful and impermissible in the practice of our Soviet courts and other state institutions. We need decisions of cases, not formally, but in their essence; the state of the working people, as distinct from the bourgeois state, does not hide either its class character or its goal – the construction of socialism. Therefore, the application of norms of Soviet law must not be based on certain formal logical considerations, but upon the consideration of all the concrete features of the given case, of the class essence of those relationships to which it becomes necessary to apply a general norm, and of the general direction on of the policy of Soviet power at the given moment. In the opposite case a result would be obtained which Lenin defined as: “Correct in form, a mockery in substance.”

The denial of formal legal logic cultivated by the bourgeoisie does not mean a denial of revolutionary legality, does not mean that judicial cases and questions of administration must be decided chaotically in the Soviet state, systematically on the basis of the random whims of individuals, or on the basis of local influences. The struggle for revolutionary legality is a struggle on two fronts: against legal formalism and the transfer to Soviet soil of bourgeois chicanery, and against those who do not understand the organizational significance of Soviet decrees as one of the methods of the uniform conduct of the policy of the dictatorship of the proletariat.

Thus, the law is the means of formulating and consolidating the production relationships of class society and the social relationships which are connected with them. In the legal superstructure, these relationships appear as property relations and as relations of domination and subordination. They appear, in particular, as relations of an ideological nature, i.e. as relations which are formed in connection with certain views and are supported by the conscious will of the people.

We shall not touch upon the question of the degree to which the legal ideology of the exploiting classes is capable of correctly reflecting reality, and in what measure it inevitably distorts it (representing the interest of the exploiting class as the social interest in order, legality, freedom etc.). Here, we merely emphasize the fact that without the work of legislators, judges, police and prison guards (in a word, of the whole apparatus of the class state), law would become a fiction. “Law is nothing without an apparatus capable of enforcing observation of the norms of law” (Lenin).

The conscious will – towards the formulation and consolidation of production and other relationships – is the will of the ruling class which finds its expression in custom, in law, in the activity of the court and in administration. The legal superstructure exists and functions because behind it stands an organization of the ruling class, namely the apparatus of coercion and power in the form of the army, the police, court bailiffs, prison guards and hangmen. This does not mean that the ruling class has to use physical force in every case. Much is achieved by simple threat, by the knowledge of helplessness and of the futility of struggle, by economic pressure, and finally by the fact that the working classes are in the ideological captivity of the exploiters. It is sufficient to mention the narcotic of the religious ideology of humility and meekness, or the genuflection before the idol of bourgeois legality preached by the reformist.

But the ultimate argument for, and the basis of, the legal order is always the means of physical force. Only by depending on them could the slaveowner of antiquity or the modern capitalist enjoy his right.

The attempts by certain bourgeois jurists to separate law from the state, or to contrast “law” and “force”, are dictated by the attempt to hide and conceal the class essence of law.

Often these proofs that law is independent of the state bear a truly laughable character. Thus, for instance, Stammler claims that he has proved this thesis relying on the fact that on a dirigible which flies over the North Pole, i.e. outside the sphere of action of any state power, the emergence of legal relationships is possible.

By such empty dogmatic chicanery the scientific question of the relationship of state and law is decided. Can one be surprised at Lenin’s sharp reaction to Stammler when he says that: “From stupid arguments, Stammler draws equally stupid conclusions.”

The dependence of law on the state, however, does not signify that the state creates the legal superstructure by its arbitrary will. For the state itself, as Engels says, is only a more or less complex reflection of the economic needs of the dominant class in production.

The proletariat, having overthrown the bourgeoisie and consolidated its dictatorship, had to create Soviet law in conformity with the economy, in particular the existence of many millions of small and very small peasant farms. After the victory of the proletarian revolution the realization of socialism is not an instantaneous act but a long process of construction under the conditions of acute class struggle.

From the policy of limiting its exploitative tendencies and the elimination of its front ranks, we moved to the policy of liquidating the kulaks as a class by widespread collectivization. A successful fulfilment of the first Five Year Plan; the creation of our own base for the technical reconstruction of the whole national economy; the transfer of the basic mass of the peasantry to collectivization; these events enabled the basic task of the second Five Year Plan to be:

the final liquidation of capitalist elements and classes in general, the full elimination of the causes of class differences and exploitation, the overcoming of the survivals of capitalism in the economy and the consciousness of the people, the transformation of the whole working population of the country into conscious and active builders of a classless society. [7]

At each of these stages Soviet law regulated and formulated production relationships differently.

Soviet law in each of the stages was naturally different from the law of capitalist states. For law under the proletarian dictatorship has always had the goal of protecting the interest of “the working majority, the suppression of class elements hostile to the proletariat, and the defence of socialist construction. Those individual Soviet jurists who considered law as the totality of norms (i.e. externally and formally) are not in a position to understand this. Finding identically formulated norms in the system of bourgeois and Soviet law, these jurists began to speak of the similarity between bourgeois and Soviet law, to search out “general” institutions, and to trace the development of certain “general” bases for bourgeois and Soviet law. This tendency was very strong in the first years of NEP. The identification of Soviet with bourgeois law derived from an understanding of NEP as a return to capitalism, which found expression in the Marxist ranks.

If NEP, as the Zinoviev opposition asserted at the XIVth Party Congress, is “capitalism which holds the proletarian state on a chain”, then Soviet law must be presented as bourgeois law, in which certain limitations are introduced, to the extent in the period of imperialism that the capitalist state also regulates and limits the freedom of disposition of property, contractual freedom etc.

Such a distortion in the description of NEP led directly to an alliance with bourgeois reformists in the understanding of Soviet law.

In fact, NEP “is a special policy of the proletarian state intended to permit capitalism while the commanding heights are held by the proletarian state, intended for the struggle between the capitalist and socialist elements, intended for the growth of the role of the socialist elements at the expense of the capitalist elements, intended for the victory of the socialist elements over the capitalist elements, intended for the elimination of classes and for the construction of the foundation of a socialist economy.” [8]

Soviet law as a special form of policy followed by the proletariat and the proletarian state, was intended precisely for the victory of socialism. As such, it is radically different from bourgeois law despite the formal resemblance of individual statutes.

Juridicial formalism, which conceives of nothing other than the norm and reduces law to the purely logical operation of these norms, appears as a variety of reformism, as a Soviet “juridical socialism”. By confining themselves only to the norm and the purely juridical (i.e. formal ideas and concepts), they ignored the socio-economic and political essence of the matter. As a result, these jurists arrive at the conclusion that the transformation of property from an arbitrary and unrestricted right into a “social function” (i.e. a tendency which is “peculiar to the law of the advanced”, that is, capitalist, countries), finds its “fullest” expression in Soviet legislation. Making this contention, the Jurists “forgot” such a trifle as the October Revolution and the dictatorship of the proletariat.

It is not only important to “read” the norm, but also to know what class, what state, and what state apparatus is applying this norm.

6. Law and production relationships

Production relationships form the basis of society. It is necessary to begin with these relationships in order to comprehend the complex picture presented by the history of mankind.

To search for the basic characteristic of society and social relations in an area other than production relationships means to deprive oneself of the possibility of a scientific understanding of the laws of development of social formations. However, it by no means follows from this that, according to Marx, only relations of production and exchange are social relations. Such a concept is a caricature of Marxism. The equation of social relations with production relations in this case is understood purely mechanically. However, a number of times Lenin noted that Marx’s great service was that he did not limit himself to the description of the economic “skeleton” of capitalist society, but that:

in explaining the construction and development of a definite social formation “exclusively” by production relations, he nonetheless thoroughly and constantly studied the superstructure corresponding to these production relations, which clothed the skeleton with flesh and blood. The reason that Das Kapital had such enormous success was that this book (“by a German economist”) showed the capitalist social formation as a living thing-with its everyday aspects, with the actual social phenomena essential to the production relations between antagonistic classes, with the bourgeois political superstructure protecting the domination of the capitalist class, with the bourgeois ideas of freedom, equality etc., with bourgeois family relations. [9]

Stuchka looks differently at the matter. In his opinion, Marx considered only relations of production and exchange to be social relations. But this would mean affirming that Marx limited himself to the “skeleton” alone, as if having indicated the basic and eventually determinant in social life and social relations he then passed by that which is derivative and requires explanation. However, more than once Marx directly points out the existence of social relationships which are not production relations but which merely derive from them and correspond to them. Characterizing revolutionary proletarian socialism in France in 1848, Marx wrote:

This socialism is the proclamation of the permanence of the revolution , a proclamation of the class dictatorship of the proletariat as a necessary transition toward the elimination of class differences altogether, toward the elimination of all production relations upon which these differences are based, toward the elimination of all social relationships corresponding to these production relations, toward a revolution in the entire world of ideas arising from these relationships. [10]

Nevertheless, Comrade Stuchka firmly defends his understanding of the term “social relationships”:

We proceed from social relationships; I emphasize the word “social”, for here my critics are desperately confused. I thus selected the word “social” and a whole chapter in my first book was dedicated to it only in the sense of relations of production and exchange (as Marx and every Marxist understands this). [11]

Proceeding from the equation of production and social relationships, Stuchka defined law as a “system (or order) of social relations corresponding to the interests of the ruling class and protected by its organized force”. In this definition, as he himself indicated, there was room only for the law of property and the law of obligations.

As earlier, so even now [he wrote] I consider basic law , law in general, to be civil law , understanding thereby the form of organization of social relationships in the narrow and specific sense of the word (i.e. relations of production and exchange). I consider that all the remaining areas of law are either of a subordinate or derivative character, and that only bourgeois law (subjecting to its influence all the remaining areas of law) created a legal state, or state law and criminal law, as an equivalent norm for crime and punishment, not even mentioning administrative, financial etc., and finally international law or even the law of war. [12]

The positions outlined in this excerpt contain a series of mistakes. There is no doubt that the formulation and conformation of social relationships to the means of production is basic to law. Proceeding from the economic basis, from different forms of exploitation, we differentiate slaveowning, feudal and capitalist systems of law. But, in the first place, it is incorrect to subsume the property relations of slaveowning or feudal society under the concept of civil, i.e. bourgeois, law as “law in general”. In the second place, state law may not be equated with the so-called Rechtsstaat of the bourgeoisie. If one takes this point of view then one must either deny the existence of a distinctive feudal state law, or show that despite the existence of a Soviet state we do have Soviet state law. At the same time, in other places in his textbook, Stuchka proceeds from the existence of different class systems of law: feudal, bourgeois, Soviet. Here he argues for a “general law” which is equated with the civil law of bourgeois society. At the same time state law is equated with the theory of bourgeois jurists of the so-called Rechtsstaat , and criminal law (i.e. formalized class repression) with the ideology of equivalent retribution.

The basic question – do relationships exist that enter into the content of law, which are not, however, relations of production and exchange? – is avoided by Stuchka; he cites the subsidiary, derivative etc. character of state, criminal etc. law. However, it is clear that the structure of family relationships, the formalization of class domination in the state organization, the formalization of class repression, all this is embraced by the different branches of law (family, state and criminal).

The content of this legal intermediary is the social and political relationships which, in the final analysis, are reducible to the same production relationships, but by no means correspond to them.

Stuchka’s subsequent definition of law suffers from the shortcoming that he limits the area of law merely to production relations. This definition also introduces confusion because it confuses law with economics. Proceeding from the indisputable position that not all which is stated in a norm (in a statute) is realized in fact, Stuchka has made the incorrect conclusion that law is indeed the very relation of production and exchange. Stuchka has therefore declared Marx’s teaching – that law is an ideological superstructure to be a tribute to the “volitional theory” of the old jurists.

Whoever has mastered the form of theorizing of Marx and Engels that capital, money etc., are social relationships, will at once understand my views on the system of social relationships. This will be hardest of all for a jurist for whom law is a purely technical and artificial superstructure, strangely enough, holding sway over its base. Even Karl Marx gave a small tribute to this concept when he spoke of law as an ideological superstructure. But Marx was raised on Roman law and in general on the juridic concepts of the 1830s, considering it an expression “of the general will” ( Volkswillen ), and he was [therefore] accustomed to its terminology. [13]

In conducting the struggle with the narrow, formal legal concept of law as a totality of norms, we cannot deny the real existence of the legal superstructure, i.e. of relationships formulated and consolidated by the conscious will of the ruling class. Only to the extent that this process of formulation and consolidation proceeds may one speak of law. To study law only as totality of norms means to follow the path of formalism and dogmatism. But to study law only as relationships of production and exchange means to confuse law with economics, to retard the understanding of the reciprocal action of the legal superstructure and its active role. At the same time as production relations are imposed on people regardless of their will, legal relationships are impossible without the participation of the conscious will of the ruling class. The teaching of Marx, Engels and Lenin on law as an ideological superstructure needs no correction. Law cannot be understood unless we consider it as the basic form of the policy of the ruling class. In the later editions of The Revolutionary Role of State and Law , Stuchka supplemented his definition of law, developing the theory of the so-called three forms of law. The first, or in Stuchka’s words, the concrete form of law, is a legal relationship which corresponds to a production relationship and, with it, constitutes the base [or] reality. On the contrary, the two &ldquo;abstract&rdquo; forms – statute and legal ideology as Stuchka expresses it – are the essence of “the manifest superstructure”. [14]

This approach is also incorrect and non-dialectical. A legal relationship is a form of production relations because the active influence of the class organization of the ruling class transforms the factual relationship into a legal one, gives it a new quality, and thus includes it in the construction of the legal superstructure. This result is not achieved automatically by laissez faire , in the same way that prices are established under free competition. Even in the case of so-called customary law, the ruling class – through its special agencies, through the courts – ensures that the relations correspond to obligatory rules. This is all the more true with respect to the legislative creation of norms.

In particular, the revolutionary role of the legal superstructure is enormous in the transitional period when its active and conscious influence upon production and other social relationships assumes exceptional significance. Soviet law, like any law, will cease to exist if it is not applied. But the application of law is an active and conscious process by which the state apparatus plays the decisive role as a powerful weapon of class struggle. Would it be possible, for instance, to speak of Soviet law which did not somehow recognize the Soviet state, the Soviet agencies of power, Soviet courts etc.? It is clear that while an individual statute may be removed from the real legal order and remain a pious wish, concrete legal relationships may never be removed from the consciousness and will of the ruling class, may never be transferred from the superstructure to the base without parting from the heart of historical materialism.

From all that has been said above it is clear that the definition of law as a formal intermediary of the economy must be recognized as insufficient and incorrect. The different branches of law are connected differently with the economy; this must never be forgotten, and this is not expressed in the above-mentioned definition. On the contrary it can lead to the notion that the area of law is limited to property relationships alone. Then all the other types of law must be declared non-existent. Stuchka would, in fact, have had to reach this conclusion. But he speaks of criminal and state law, not entirely consistently with his other position, i.e. by referring to them he recognizes their existence.

There is no doubt that economics is at the base of political, familial and all other social relations. [15] But the election law of any capitalist country facilitates the economy differently from civil law or the Criminal Code. To try to force all the varied branches of law into one formula is to give preference to empty abstractions.

Law as a formal facilitation of social and (primarily) production relationships must be studied concretely. This study may not be replaced with ready citations from Hegel with respect to the “transformation of form into substance and substance into form”. The dialectical method, which teaches that every truth is concrete, becomes in this instance its own opposite-dead scholasticism, barren arguments and disputes on the theme that “form is not without content and content not without form”. However, the matter really consists of showing the role and character of law as form in specific and concrete branches of law and concrete historial conditions with a relation to concrete content. Only in this manner can the real relation of form and content be established and can one be convinced that it is far from identical in different instances. Often legal form hides economic content directly contrary to it (thus in the period when we conducted the policy of restricting the kulak, the leasing of a horse or tools by a poor peasant to a rich one often hid the sale of the first’s labour power to the second). A transaction of purchase and sale can hide the most diverse economic content. The same could be said about any other relationships within the so-called law of obligations. Here we meet with a phenomenon whose form is relatively indifferent to its content, but it is improper to conclude from this that in civil law we have a “faceless instrumentality” which must be used independently of the economic class content of the relationships which it implements. On the contrary, the significance of form is recognized only through content, through economics, through politics and through relations between classes.

Therefore, it is a flagrant error to equate law as an historical phenomenon – including various class systems – with the totality of those features of bourgeois law that derive from the exchange of commodities of equal value. [16] Such a concept of law minimizes the class coercion essential to bourgeois law, essential to feudal law and to all law. Law in bourgeois society serves not only the facilitation of exchange, but simultaneously and mainly supports and consolidates the unequal distribution of property and the monopoly of the capitalist in production. Bourgeois property is not exhausted by the relationships between commodity owners. These [owners – eds. ] are tied by exchange and the contractual relationship is the form of this exchange. Bourgeois property includes in a masked form the same relationship of domination and subordination which, in feudal property, appears chiefly as personal subordination.

This methodological mistake was related to the relegation of the class repressive role of law, and to an incorrect presentation of the relation between state and law (the state as the guarantor of exchange), and to mistakes in questions of morality (the denial of proletarian morality) and in questions of criminal law.

The attempts to distinguish between formal characteristics and abstract legal concepts expressing the relationship between commodity owners, and to proclaim this &ldquo;form of law&rdquo; as the subject of the Marxist theory of law, should be recognized as grossly mistaken. This paves the way to the separation of form and content, and diverts theory from the task of socialist construction to scholasticism.

The immediate relation, in practice, between the proletariat (as the ruling class) and law (as a weapon with whose help the tasks of class struggle at any given stage are decided) is in this case replaced by the abstract theoretical denial of the &ldquo;narrow horizons of bourgeois law&rdquo; in the name of developed communism.

From this perspective Soviet law is seen exclusively as a legacy of class society imposed on the proletariat and which haunts it until the second phase of communism. The abstract theoretical exposure of &ldquo;bourgeois&rdquo; law hides the task of the concrete analysis of Soviet law at different stages of the revolution. Accordingly, it gives insufficient concrete indication of the practical struggle against bourgeois influences, and against opportunist distortions of the Party’s general line on Soviet law.

The theoretical mistake of exaggerating the importance of market relations can be the basis for right opportunist conclusions about always preserving the bourgeois forms of law corresponding to private exchange. Conversely, to ignore exchange in considering the problems of Soviet law leads to &ldquo;leftist&rdquo; positions about the withering away of law which is now in the process of socializing the means of production, and about the withering away of economic accountability and the principle of payment according to labour, i.e. to the defence of the elimination of individual responsibility and wage egalitarianism.

Top of the page

1. K. Marx, Letter to Weydemeyer (March 5, 1852), MESW , vol.1, p.528.

2. V. I. Lenin, The Economic Content of Narodnism (1895), LCW , vol.1, p.419.

3. See Kellreiter’s article The State ;, in D. Elster et al. (eds), Handwörterbuch der Rechtswissenschaft (1923), Fischer, Jena, p.599.

4. V.I. Lenin, A Contribution to the History of the Question of Dictatorship (1920), LCW , vol.31, p.353.

5. F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), MESW , vol.3, p.371.

6. ibid. , p.371.

7. From a resolution of the XVIIth Party Conference (1932).

8. J. Stalin, The Fourteenth Congress of the CPSU (1925), Stalin: Works, Foreign Languages Publishing House, Moscow (1954), vol.7, p.374.

9. V.I. Lenin, What the “Friends of the People” Are (1894), LCW , vol.1, pp.141-42.

10. K. Marx, The Class Struggles in France (1850), MESW , vol.1, p.282.

11. P.I. Stuchka, A Course on Soviet Civil Law (1927), Communist Academy, vol.1, p.13.

12. ibid. , pp.78-79.

13. P.I. Stuchka, The Revolutionary Role of Law and State (1921), Moscow, p.15.

14. ibid. (3rd edition); and P.I. Stuchka’s article Law in Encyclopaedia of State and Law, (1925-1927), vol.3, pp.415-430.

15. “The state and law are determined by economic relations. Of course, the same must be said of civil law whose role in essence consists of the legislative clarification of the existing economic relations between individuals which are normal in the given circumstances” F. Engels, Ludwig Feuerbach and the End of Classical German Philosophy (1888), op. cit. p.370.

16. This erroneous conception was developed in E.B. Pashukanis, The General Theory of Law and Marxism (1927), 3rd edition. See also E.B. Pashukanis, The Situation on the Legal Theory Front , Soviet State and the Revolution of Law (1930), no.11-12; and For a Marxist-Leninist Theory of State and Law (1931) Moscow, where a critique of this mistaken conception is given.  

Last updated on 13.5.2004

Fyodor Fyodorovich Martens (1845-1909) - a humanist of modern times

30-06-1996 article, international review of the red cross, no. 312, by vladimir pustogarov.

  Vladimir Vasilievich Pustogarov,   an international jurist and Doctor of Law, was Deputy Director of the Institute of State and Law, Academy of Sciences (USSR), and is currently Senior Researcher at the Institute of Law and Government of the Russian Academy of Sciences. He is the author of the first monograph on F.F. Martens: "... With the olive branch of peace. F.F. Martens -jurist, diplomat and publicist" (Moscow 1993, 287 pages). In March 1996, he was awarded the Martens Prize of the Russian Academy of Sciences.  

  Original: Russian.  

In the history of humankind, no matter how far back we look into the past, peaceful relations between people and nations have always been the ideal, and yet this history abounds in wars and bloodshed. The documentary evidence, oral tradition and the mute testimony of archaeological sites tell an incontrovertible tale of man's cruelty and violence against his fellow man. Nevertheless, manifestations of compassion, mercy and mutual aid have a no less ancient record. Peace and war, goodneighbourly attitudes and aggression, brutality and humanity exist side by side in the contemporary world as well.

The primary task of modern times is to break this vicious chain and to put an end to war and violence - a goal which is all the more vital because of its close links with the need to prevent the ecological disaster that threatens the whole planet and its inhabitants.

Recipes for the elimination of war are many and varied and are all worthy of attention, but at the same time no one can question the significance and fruitfulness of the noble idea of protecting the life, honour and dignity of human beings by legal means, with the ultimate aim of banishing war itself from international relations. In this connection, the importance of promoting legal awareness is primordial, since homo sapiens behaves in accordance with conceptions formed in his mind, and a legal norm can come into effect only when it becomes inherent in the way of thinking of a large enough number of people. The Ten Commandments of the Bible can be carved on stone tablets, cast in bronze or stamped on steel plates, but will nevertheless remain a dead letter unless they become part of the legal consciousness of society.

The evolution of the moral values that determine the concept of justice ( justitia ) entails changes in the law, including international law, and the crowning points of this development are marked by the names of outstanding lawyers. It is indeed regrettable that our cultural tradition - at least, since the fall of ancient Rome - has placed lawyers far from the vanguard, behind emperors and army commanders, men of letters and painters. The poems of the 12th century minnesinger Walter von der Vogelweide are still included in anthologies of German verse, Napoleon and Suvorov are still legendary heroes of the past and the canvases of Titian and Rubens are still regarded as masterpieces - but who remembers Eike von Räphoff, the first codifierof mediaeval law and the author of the rhymed Saxon Mirror ?

It was not until the 17th century that Hugo Grotius became widely known in Europe and more centuries passed before international developments in the last quarter of the 19th century brought forth a brilliant galaxy of international law experts from various countries who laid the foundations of contemporary international law.

One of the most outstanding representatives of this pleiad was Fyodor Fyodorovich Martens (1845-1909), a Russian jurist, diplomat and publicist whose influence on international law is appreciable to this day.

  Martens as an international lawyer  

F.F. Martens was born into a poor family in the town of Pernov (now Pärnu) of the Liefland province of the Russian Empire. At that time the province comprised the territory of modern Latvia and Estonia.

At the age of nine he lost both his parents and was sent to a Lutheran orphanage in St. Petersburg, where he successfully completed the full course of studies at a German high school and in 1863 entered the law faculty of St. Petersburg University.

Very little is known of his childhood and youth. No doubt they were not easy. He himself did not like to recall those years, although sometimes the accumulated bitterness would suddenly burst forth, and he would write in his diary such entries as this one on the occasion of his 60th birthday: " I have never had a worse day in my life, even if I think back to my childhood years " . [1 ] Apparently the hardships of his childhood had not faded from his memory...

At the university the young man was a brilliant student and his gifts caught the attention of I.I. Ivanovsky, the faculty dean, whose support enabled him to continue his studies at the university and to obtain the degree of professor of international law.

Martens soon defended his master's thesis On the law of private property in time of war and was sent on a study tour abroad, attending lectures at the universities of Vienna, Heidelberg and Leipzig. As may be seen from his later works, he was mainly influenced by A.D. Gradovsky, professor of St. Petersburg University, who advocated the ideas of the rights of the individual and West European constitutionalism, by L. von Stein, professor at the University of Vienna, well known for his works on management and " social intercommunication " across State boundaries, and by J.K. Bluntschli, professor at Heidelberg University, who published The Modern International Law of Civilized States in the form of a code.

His growing knowledge of Russian and West European schools of thought helped to broaden his outlook and to develop his spirit of innovation and independent thinking. When delivering his first lecture to students in January 1871, he defiedtradition by not continuing the course begun by his predecessor, but by criticizing the current state of the science of international law, on the grounds that it was not yet based on the study of material factors, was not trying to identify the objective laws of development and " made no attempt to investigate the internal laws of communication between States and of international relations " . Martens believed that it was time to " start looking into the laws of the historical development of nations in their international life " . [2 ] It was indeed bold of the young academic to claim to have created his own school of thought in international law.

Martens was above all opposed to any concept implying that law was based on force. He regarded such views as unworthy of human beings and pernicious for international relations, pointing out that in such cases even prominent experts were confusing law enforcement procedures with law itself, for the fact that law was safeguarde d by force did not mean that force should serve as the basis for law. According to Martens, the inviolability of human life, honour and dignity is recognized to be the right of everyone, not because it is protected by criminal law, but because everyone has an inalienable right to life, honour and dignity.

With regard to the driving force of international law, Martens saw it in the development of international relations, reflecting the nations'need to communicate among themselves: " ubi societas ibi jus est " ( " where there is communication there is law " ). He wrote: " The idea of international communication under which every independent State is an organic part of a single whole, linked with the other States by their common interests and rights, should serve as the basis for a scientific system of contemporary international law " .[3 ]

The real needs of States are constituted by international relations, which in turn are expressed in international law. At the same time, international law is not merely a device for recording the formation of relations between States, but is also a manifestation of the moral values of the human race.

Although a down-to-earth realist, Martens stressed the " ideal power of law " , the power of the ideals of justice and humanity, and as a jurist and a humanist, he saw the basis for an equitable legal order, not in State sovereignty, " political balance " or nationalistic ideas, but solely in law: it is only law and the absolute rule of law that can ever serve as a basis for a properly organized life, free from war and violence.

In his analysis of the history of antiquity, feudalism and the modern era, Martens recorded a steady shift in the correlation between law and force in favour of law. He believed that " in the area of international relations, too, the time will come wh en the great law of social life will finally prevail, and each nation will exist for the world and the world for each nation " . [4 ]

Martens'sublime humanism and foresight caused him to situate the human being at the centre of international life. He concludes that there is but one law running through the entire history of nations, namely " the principle of respect for the human person " .[5 ]

It is to his credit that he placed the human being at the centre of international law in spite of the views prevailing at the time. Martens considered protection of the rights, interests and property of a human being to be the substance of the entire system of international relations and regarded respect for human rights as a yardstick of the degree of civilization of States and international relations. " It is our conviction, " he wrote, " that once the human being as such is recognized by the State to be the source of civil and political rights, international life will reach a high degree of development, law and order. And the reverse is also true - international relations can neither be developed nor established on a firm basis with a State in which the human person enjoys no rights and is oppressed " . [6 ] The wording of Martens'credo is outstandingly clear: " Protection of the individual is the ultimate purpose of the State and goal of international relations " [7 ] - an idea and formulation worthy of the UN Charter or the Universal Declaration of Human Rights!

Martens'humanism was incompatible with the spirit of militarism even that emanating from his own homeland. The essay he contributed to a St. Petersburg journal in connection with the celebration of the 150th anniversary of the University of Bern (Switzerland), to which he was invited as guest of honour, is noteworthy in this respect. Martens was fascinated by the fact that a country as small as Switzerlandhad seven universities, that the university jubilee was being celebrated as a public holiday by the town and the whole canton of Bern and that this little canton maintained a university and provided for it better than Russia did for her institutions. " For us Russians, " he wrote, " the history of this small cantonal University of Bern is enlightening at least by familiarizing us with the experiences and vicissitudes of cultural life " . To this he added: " The Swiss realized long ago what constitutes the true, essential and unshakeable might of every nation. It is not millions of bayonets, an immense national territory or a vast population, but it is the power before which everyone must bow and which triumphs over everything - the power of superior culture, intellect and talent " . [8 ]

Martens'scholarly outlook determined his practical activities as both a lawyer and a diplomat.

  Martens as a diplomat  

Unlike pacifists and representatives of similar trends, Martens considered the idea of the abolition of war in the immediate or more distant future to be purely utopian. In his opinion, the only solution that was compatible with the humane goals of law was to limit the horrors of war by means of clearly defined rules accepted by all States.

It is worth mentioning that in Martens'time an anti-war offensive was being launched from many quarters and along different lines. The number of peace associations was growing. After emerging in the USA and Great Britain, they soon sprang up in a considerable number of countries. By 1895 there were 125 of them, including 36 in Great Britain, 26 in Germany, 14 in France, 14 in Italy, 9 in Switzerland and so forth, and at the beginning of the 20th century Russia was the only European country in which there were none. In Brussels in 1848, the peace associations held their first co ngress, which then became an annual event. Their activities influenced world public opinion by decrying the glorification of war, and the Interparliamentary Conferences held regularly after the first such conference in Paris in 1899 had a similar effect. [9 ]

The idea of joining the civilized States in a single union within which all conflicts would be resolved peacefully was quite popular at the time. One of its most ardent supporters was L.A. Kamarovsky (1846-1909), a Russian jurist best known as the initiator of a permanent international court, who suggested as a first step the establishment of a union of European and American States along the lines of the USA,10 in the belief that strengthening the practice of federalism was important for promoting the idea of peace. [11 ]

The demand for the reduction of armaments and - in some circles - the concept of universal disarmament received relatively wide support among the general public.

The development and production of increasingly devastating weapons triggered a counterreaction, and in 1868, at the initiative of Russia, a number of States signed the St. Petersburg Declaration, renouncing the use, in time of war at sea or on land, " of any projectile of a weight below 400 grammes which is either explosive or charged with fulminating or inflammable substances " . [12 ] That provision was motivated by the desire to avoid excessive human suffering.

Attention is usually concentrated on this particular rule, whereas the Declaration of 1868 contains a number of other important principles, for instance, that " the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy " . On the basis of the laws of humanity, the Declaration banned all arms, the use of which would exceed that object of war and called for control to be exercised over future technical improvements of armament s.

Another fast-growing trend in mitigating the horrors of war was towards providing care for the wounded, prisoners of war and civilians. This work received a strong impetus from the activities of Henry Dunant, a young Swiss who had witnessed the aftermath of the bloody battle of Solferino (during the Franco-Austro-Italian War of 1859) and had written a book about that experience: " A Memory of Solferino " . At the end of his book, Dunant proposed that every country should set up a society to care for the wounded and that an international congress should be held on the subject. The proposals fell on fertile soil: the first meeting of the International Committee for Aid to Wounded Soldiers was held in 1863, and 1864saw the adoption of the (Geneva) Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Societies for relief to the wounded began to emerge in various countries, and in 1880 Dunant's original Committee became known as the International Committee of the Red Cross (ICRC).  

The picture outlined above should not, however, give a false impression of States'willingness to impose restrictions on armaments and means of warfare or to introduce more humane rules for the conduct of war. At that stage, a new legal awareness was only putting out its first shoots and the law-making process was in its early beginnings. As a matter of fact, Martens himself was soon to face some harsh realities.

  Martens and the laws of war  

With the backing of D.A. Miliutin, the Defence Minister who was close to the Tsar, Martens prepared a draft convention on the laws and customs of war, an instrument which was intended to establish universal rules of w arfare for all belligerent States amd included regulations for the treatment of the civilian population and of non-combatants in general. The rules were designed to mitigate the horrors of war, in accordance with the legal awareness and humanism that were growing among the general public.

At the initiative of Russia, Martens'draft was submitted to the International Conference convened in Brussels in 1874, but that assembly failed to adopt the convention. Although the text itself did not meet with any objection, the idea of restricting war by international rules came up against widespread resistance. The draft was finally adopted as a declaration of the Conference and did not become a convention until two decades later.

The results of the Brussels Conference did not discourage Martens, who defended his views in the press. In 1879, he published a voluminous work entitled The Eastern War and the Brussels Conference in which he strongly castigated the apologists of war. Of great significance was his two-volume course The Contemporary International Law of Civilized Nations, published in 1881-1882, which ran into five editions and continued to be the most authoritative textbook in Russian universities for the next 30 years. It was soon translated into seven languages and was used by various foreign universities.

The publication of the Collection of Treaties and Conventions Concluded by Russia with Foreign States brought him world-wide fame. Its 15 bulky volumes, based on materials in the Russian archives, were issued in 1874-1909. By prefacing each treaty and convention with an essay on its history, Martens turned the collection into " a historical and diplomatic encyclopaedia of Russia's foreign relations " . [13 ]

Martens was an active member of th e Ghent Institute of International Law, participating, inter alia, in its work on documents relating to Red Cross activities. As from 1884, Martens represented Russia at all Red Cross conferences and was particularly active in the review of the initial Red Cross Convention at the Geneva Conference of 1906. In 1902, F.F. Martens received the Red Cross Distinguished Service Award for his services to society.

Martens'authoritative status gradually gained international recognition. During his 40 years of service in the Russian Ministry ofForeign Affairs, he represented Russia at nearly all the international conferences in which it participated. He thus took an active part in preparing the documents for the Berlin Conference on Africa (November 1884-February 1885) and the Brussels Conference on African Affairs (1889-1890), and also in drafting the main provisions of the " General Act on international measures for combating the maritime traffic in negroes " . In 1893, Martens was a delegate to the First Conference on International Private Law and later represented Russia at the Second, Third and Fourth Conferences (1904). He acted as arbitrator in international disputes on a number of occasions, the best-known being his arbitration in the dispute between Great Britain and Holland in 1892: not only did his award satisfy both parties, but he also laid down the principle of a captain's jurisdiction, under the laws of the vessel's flag, for offences committed on the high seas. In 1899, as an umpire of the court of arbitration, Martens examined the territorial dispute between Great Britain and Venezuela (whose interests were represented by the USA). The demarcation line drawn by the court along the Orinoco river basin has ever since constituted the frontier between Venezuela and Guyana. Martens was also a member of the Russian delegation which signed the peace treaty with Japan in Portsmouth (USA) in 1905.

  The Hague Peace Conferences  

The hour of Martens'triumph as a jurist and a diplomat came with the organization and conduct of the First World Peace Conference in The Hague in 1899.

We now know from archival documents that it was none other than Martens who drew up the programme of the Conference. On 12 August 1898, M.N. Muravyov, the Russian Minister for Foreign Affairs, circulated a note among the foreign envoys in St. Petersburg proposing that an international conference be convened with a view to ensuring " genuine peace and primarily putting an end to the progressive development of armaments " . The note, drawn up without any prior consultations, came as a complete surprise to foreign States and was not substantiated by any preliminary drafts or well-considered plans in the Russian Ministry of Foreign Affairs itself. It was, so to speak, " a bare idea " , intended to produce a general impact.

As it happened, the proposal to convene a disarmament conference did meet with an enthusiastic response among certain circles in several countries, and out of consideration for those feelings the Governments of Great Britain, France, Germany and other countries supported the Russian initiative. It was nevertheless clear to Martens who was following the foreign press coverage of the issue and to the senior officials of the Ministry of Foreign Affairs that none of the Powers were prepared to disarm. Martens was to learn this from his personal experience: when drawing up the conference programme, he quite reasonably assumed that Russia as the initiator should set a tangible, even if minor, example of disarmament, and therefore proposed to declare at the conference that in the year of its holding Russia would reduce the number of its army recruits during that year. Tsar Nicholas II, however, commented as follows on the draft programme: " I find it difficult to agree to a decrease in the strength of the Russian army " .[14 ]

Having obtained a positive public response and seeing that any form of disarmament was utopian, the senior officials of the Ministry of Foreign Affairs were inclined to give the plan for the conference a quiet burial. Minister M.N.Muravyov, for instance, suggested that a meeting of the ambassadors accredited to St. Petersburg, which might come up with some kind of a declaration, should be substituted for the conference.

Martens, who had shouldered the burden of preparations for the conference, was of a different opinion. Although by now he did not believe in the feasibility of any reduction of armaments, he found a way out by transforming the conference on disarmament into the first peace conference.

The programme drawn up by Martens which later served as a basis for the work of the 1899 Hague Conference provided that:

1. With regard to disarmament, a declaration should be adopted to the effect that the States parties " in the near future undertake not to resort to military force for the protection of their rights and legal interests without prior endeavours to seek good offices, mediation or arbitration proceedings " .

In addition to the above it was proposed to discuss some measures for freezing armaments.

2. Another aspect of the Conference's work concerned the establishment of a permanent court of international arbitration.

3. The third aspect of its work was the adoption of a convention on the laws and customs of war.[15 ]

The conference programme suggested by Martens not only brought the disarmament initiative of Russian diplomacy out of a deadlock, but also created a practicable basis for measures aimed at strengthening peaceful relations between nations and mitigating the horrors of war.

When the First Hague Conference opened on 6 May 1899, bringing together the representatives of 27 States (21 European countries, the USA, Mexico, China, Japan, Persia and Siam), Martens was elected Chairman of the Third Commission, dealing with the laws and customs of war.

Although the relevant draft convention had been submitted as early as 1874 in Brussels, the conciliation process in the Third Commission ran into a number of difficulties. At one point, a situation arose which Martens described as " critical " : a group of small countries headed by Belgium opposed the very principle of the rights and duties of armies of occupation, and demanded an unlimited right of resistance for the population of occupied territories. A solution was found in the form of the so-called " Martens clause " , the reservation that he proposed to insert in the preamble to the convention, reading as follows: " ... in cases not included in the Regulations adopted by them ( the States Parties - V.P.), the inhabitants and the belligerents remain under the protection and rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience " .[16 ] Martens'proposal was greeted by applause and the whole convention was adopted unanimously.

In addition to presiding over the Third Commission, Martens repeatedly addressed the plenary meetings of the Conference and spoke in its Second Commission. His merits were so widely recognized that he came to be called " the life and soul of the Conference " .

As a result of the discussions, the First Peace Conference adopted a resolution on the desirability of restricting military budgets, the Convention Respecting the Laws and Customs of War on Land and the Convention for the Pacific Settl ement of International Disputes, which provided in particular for the establishment of a Permanent Court of Arbitration.

The significance of the Conventions signed at the First Peace Conference and the impact they had and still have on the development of contemporary international law do not require any further comment. Individual clauses of the Hague Conventions (including those signed in 1907) have given rise to the development of separate branches of law which have become so topical today. These Conventions are a memorial to F.F. Martens, that outstanding Russian jurist, diplomat and humanitarian. In evaluating Martens'contribution to the overall results of the Conference, Jean Pictet, a well-known expert on international humanitarian law, wrote that the Martens clause had been brought into existence by its author's " genius " . [17 ] It is noteworthy that the full text of a slightly amended version of the Martens clause was included in Additional Protocol I to the Geneva Conventions of 1949. [18 ]

The articles of the Hague Convention on the Laws and Customs of War look strange to the modern reader. " Prisoners of war may be set at liberty on parole... " (Article 10); it is forbidden " to kill or wound treacherously individuals belonging to the hostile nation or army " , " to declare that no quarter will be given " (Article 23 (a) and (d)); " the pillage of a town or place, even when taken by assault, is prohibited " (Article 28); or (for occupied territories) " pillage is formally forbidden " (Article 47). But all this was a reflection of the contemporary realities of war, and it cannot be said that the provisions of the Hague Conventions are always observed in present-day conflicts. In any case, their humanitarian significance and their effect on legal awareness can hardly be overestimated.

  The Martens clause  

The Second World Peace Conference met in The Hague on 15 June 1907 with 44 countries participating. It was practically a world assembly, or " an international parliament " as Martens put it.

Martens again had to take a most active part in preparing the Conference programme, in its proceedings and in bringing about the adoption of agreed texts of the conventions. On the one hand, the organizational work was considerably facilitated by the fact that the way had been paved by the 1899 Conference, but on the other hand a substantial number of complex questions, left unsettled because of their difficulty, had accumulated for consideration by the Second Conference. In addition, that work had to be carried out in an atmosphere of deteriorating relations between the world Powers and of the formation of military blocs in preparation for a new war. The naval rivalry between Great Britain and Germany was particularly acute.

In the light of this new situation, the Tsar's Government decided to send Martens on a tour round the European capitals with a view to sounding out opinions and holding consultations.

In Berlin he met Kaiser Wilhelm II, in Paris - President Fallières, in London - Lord Grey, the Foreign Secretary, and King Edward VII, in The Hague - the whole royal family, in Italy - King Victor Emmanuel III and in Vienna the Minister of Foreign Affairs von Ehrental and the Emperor Franz Josef. There were also numerous meetings with senior government officials and public figures. This tour by " Professor Martens " created quite a sensation and helped to promote the preparations for the Conference, although it naturally could not smooth over the existing Anglo-German and Franco-German differences. Wilhelm II, in particular, strongly objected to any discussion of the British proposal for the reduction of armaments, threatening to disrupt the conference if such a discussion were to be held. Tsar Nicholas II was greatly influenced by Wilhelm II's position on this issue and Martens had to prove to him the " harmlessness " of the British proposal. The Tsar continued to vacillate, however, and was even thinking of cancelling the Conference altogether.

Those were the circumstances in which the Second Peace Conference, attended by delegates from 44 countries, started its work in The Hague on 15 June 1907. It should be noted in this connection that in Martens'theoretical course congresses of States, regularly convened at a world-wide level, were assigned the role of legislative bodies for the international community, as it was believed at the time that the prevailing trend was towards strengthening that community on the basis of law.

Four commissions were set up at the Conference, and Martens was elected Chairman of the Fourth, or " naval " , Commission, which he called " the most difficult " , since the Anglo-German rivalry was most clearly manifested there and Martens often had to settle differencesbetween the protagonists. The Fourth Commission was nevertheless the first to complete its work, thanks to Martens'experience.

The Second Hague Conference ultimately adopted a Final Act to which 13 Conventions and a Declaration were annexed. The States parties agreed to convene the Third World Peace Conference after a specified interval.

The 1907 Conference revised and further developed a number of the provisions adopted in 1899, with the result that the documents of the First Conference are usually quoted in the form in which they were amended in 1907. The First Peace Conference has in a way been absorbed by its successor, and when reference is made to a Hague Convention it is an instrument of the 1907 Conference that is usually implied. The oblivion into which the First Peace Conference has fallen is politically and legally unjustified, and it would be more equitable to consider both conferences from the point of view of their interrelationship. Russia's initiative to mark the centenary of the 1899 Conference by convening the Third World Peace Conference is therefore worthy of support.

As we have already mentioned, the anti-war offensive was launched from different directions and took various forms, but practical realities soon channelled these activities into two trends which, although interrelated, are legally and structurally quite distinct. One trend focused on the protection of war victims - the wounded, prisoners of war, internees and other non-combatants; the beginning of the codification process in this area being connected with the Geneva Conference of 1864 and the activities of the International Committee of the Red Cross. This trend is referred to in the literature as " the Law of Geneva " , while the other trend, focused on the rules of the conduct of war and constraints on the means of warfare and hence mainly concerned with combatants, has become known as " the Law of The Hague " .

Martens himself personified the unity and organic interrelationship of " the Law of Geneva " and " the Law of The Hague " . He took an active part in the development of " the Law of Geneva " and at the 1899 Hague Conference worked successfully for the adoption of a number of important provisions on non-combatants, primarily defining the status of prisoners of war, the wounded and the shipwrecked during hostilities at sea, as well as the status of civilians in occupied territories. Those provisions were subsequently incorporated in the Geneva Conventions of 1929 and 1949.

  Martens and human rights  

Martens has already been assigned his rightful place among the creators of international humanitarian law with respect to its " Law of Geneva " and " Law of the Hague " branches, but now we can include him among those who laid the foundations of another branch, that of the protection of fundamental human rights. Its codification is considered to start with the Universal Declaration of Human Rights of 1948, and which some jurists distinguish as " the Law of New York " .19 It was Martens who in his works and lawmaking activities placed the human person at the centre of international life and recognized the protection of the human being to be the ultimate objective of international law.

Fedor Fedorovich Martens died in 1909 and was buried in St. Petersburg.

  Notes :  

1. Archives of Russian Foreign Policy (ARFP), Inventory 787, File 9, Storage unit 6, pp. 73-74.

2. F.F. Martens, On the goals of contemporary international law, St. Petersburg, 1871 (in Russian).

3. F.F. Martens, The contemporary international law of civilized nations , vol. 1, St. Petersburg, 1882, p. 178 (in Russian).

4. F.F. Martens, The Eastern War and the Brussels Conference, St. Petersburg, 1879, p. 45 (in Russian).

5. F.F. Martens, op. cit. (note 3), pp. 23-34.

6. Idem , pp. 110-129.

7. Idem.  

8. " The European Herald " , St. Petersburg, 1884, No. 10, pp. 852-858 (in Russian).

9. L.A. Kamarovsky, The success of the idea of peace , Moscow, 1898, pp. 89-179 (in Russian).

10. L.A. Kamarovsky, On an international court, Moscow, 1881, pp. 483-501 (in Russian).

11. L.A. Kamarovsky, The question of an international organization. The United States of Europe . Moscow, 1905 (in Russian).

12. Declaration renouncing the use, in time of war, of explosive projectiles under 400 grammes weight, St. Petersburg 1868 ( " Declaration of St. Petersburg " ).

13. M.A. Taube, F.F. Martens (1845-1909) - An obituary , St. Petersburg, 1909, p. 9 (in Russian). The volumes were published simultaneously in Russian and French.

14. ARFP, Inventory 470, file 63, Ë.450.

15. ARFP, Inventory 787, file 9, storage unit 4, pp. 80-86.

16. As adopted by Convention (IV) Respecting the Laws and Customs of War on Land, of 18 October 1907, 8th preambular paragraph.

17. J. Pictet, Development and Principles of International Humanitarian Law, Dordrecht/Boston/Lancaster/Geneva, 1985, p. 60.

18. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, Article 1, par. 2.

19. F. Kalshoven, Constraints on the waging of war, ICRC, Geneva, 1987, pp. 7-23.

Related sections

• History of the ICRC