This is a chapter from the book:
The Democratic State
Chapter 4: Justice — Protection of person and property — Morality
The state, as a legitimate power, subjects its citizens to the law. It enforces justice, thereby compelling its citizens to recognize each other’s free will. The administration of justice ensures the protection of person and property as well as the sovereignty of the state. It maintains competition by making the freedom of private individuals dependent upon the correspondence of their actions with the law. The state judges everything citizens do in terms of whether it conforms with the law, and makes its judgment valid by restoring the law whenever it is violated. In this way, through the power of the state, the law becomes immanent in the actions of citizens. Citizens in turn recognize the state’s commands as ethical standards which they apply to themselves and to other citizens, which is what morality is.
a) Why the state provides equal protection
When it protects free citizens, their person and their property, by restricting them, the state is not based only on the collisions of competition. It is in fact the only purpose of the bourgeois state to preserve a society in which the augmentation of property, the expansion of the sphere of personal freedom, excludes all but the owners from participating in the wealth of society. By using its power to prevent any party from infringing upon persons and their property, the state ensures that the economic differences it is confronted with continue to exist. It thus also ensures that the conflicts of economic life will have their say, producing more or less guaranteed results.
Fanatics of equality will simply not believe that the equal treatment of competitors having different resources at their command is the best guarantee for the continual existence and even growth of their inequality. These people think of equality as an ideal with which to measure the differences in society, rather than as what it really is, a relationship of force.
Despite what idealists of equality think, the actual practice of the state is no injustice. It is just the normal state of law. By comparing the actions of private persons with the content of the law, the state ensures that individual freedom ends where property begins. There is thus an essential difference between a legal judgment and a scientific one. A scientific judgment is the theory about some object. It explains the object, capturing in thought what it really is. By contrast, a legal judgment has nothing in common with an explanation of the actions to which it pertains. Jurists are not concerned in the least with what justice is. They know that it exists in the form of laws, which are not the result of any scientific efforts, but of legislative fiats by the state. Their only concern is to see whether the actions of citizens conform to the laws or conflict with them. Their theoretical activity consists simply in bringing each “case” under the appropriate law as preparation for deciding the “case” in practice. Their judgments are not knowledge but comparisons. They abstract from the concrete content of the actions of citizens by relating them to laws, which are made objectively valid through forcible acts against the individuals. This is what police are for, and what the administration of justice is all about.
c) Subjection to law
By protecting person and property, the state secures a sphere of freedom for individuals which sets limits on the pursuit of their particular interests. The exercise of one free will is dependent upon all the other free wills. It is therefore regulated by law, the state dictating to citizens the forms their social relations must assume. The realization of their private interests is their right, i.e. it is permitted on the condition that it not violate the law.
The state applies its monopoly on force to ensure that the collisions between the interests in society occur without the use of force. The subjection of all activities to the law is the basis for the bourgeois definition of force as an unlawful act, which makes capitalist society appear rather idyllic to its many loyal supporters. Bourgeois minds are so delighted about the state’s monopoly on force that they easily forget that the validity of the law entails that all private acts involve submission to state power, so that an interest in freedom is simultaneously an interest in force.
1. In civil, or private law the state lays down how mutually dependent private persons are to relate to each other. The state sets norms for those activities in which private individuals avail themselves of their personal freedom and utilize their property.
In its legal definitions of natural and juridical persons, the state lays down the conditions under which someone is considered a legal subject and as such is allowed to perform legal acts, i.e., when and to what extent a person’s will must be respected. Evidently, this is hardly a matter of course in bourgeois society.
In its laws on contracts and property, the state lays down different kinds of legal transactions, how they are to be carried out and their consequences. Since private citizens are only interested in their own advantage in their dealings, the state must impose on them the fundamental form of legal transactions, the contract, by most pedantically regulating all aspects of it. The law defines what is considered an act of volition, when an act of volition is valid, what this validity implies (performance) and how a promise to perform is to be kept. And since each party treats the other only as a means for gaining his or her own advantage, the state must also make sure its citizens do not make contracts about objects or services which are beyond their authority. By using force, the state brings home to them the exclusive nature of private property, which is desired and esteemed by everyone and therefore always disregarded.
In family law, the state lays down the relations of person and property when they are deranged by the relations between the sexes and between parent and child. Special regulations are necessary because the love between man, woman and child tends to get in the way of their duties as legal subjects. The state forces them to divide and share rights and duties in the very sphere in which they abandon mutual exclusion because of individual affection. The state thus declares the happy home a regulated utilitarian relationship, which is why the breach of the holy sacrament of marriage it not only a matter for the Final Judgment. It also has its mundane aspects, which are taken up in the family courts.
In inheritance law, the state lays down the relations of person and property resulting from the death of a property owner. It guarantees the continuing usefulness of property for the family and therefore limits the free disposition of private property by wills, which is already anticipated during a person’s lifetime in diverse prohibitions.
2. In criminal law, the state lays down how the law must be restored when it has been violated, how it itself must react to acts which break the law. This is in contrast to civil law, which standardizes the state’s definition of private claims with an aim to imposing law-abiding behavior, i.e., nothing is to happen unless it is permitted. Since the state’s reaction to lawbreaking is also written into the law as the criminal code (“nullum crimen sine lege,” no crime without a law for it), the protection provided by law completely loses the idyllic appearance which comparisons to earlier “lawless” epochs help to maintain. Justice, the restoration of law, has nothing to do with a power arbitrarily responding to a private injury. It treats revenge, feuds, duels, etc., themselves as breaches of the law. Since the judicial point of view is not at all that of an aggrieved interest, but rather that of free will objectified in the state, the administration of justice maintains a society in which every individual acts in accordance with a principle, the principle of legality, which in itself recognizes and anticipates that there are always plenty of reasons to break the law.
The principle of guilt requires not only that wrongdoers be shown to have a free will (responsibility), but above all that they are aware that they are subject to the law they break (intent and negligence). A crime can only be committed by someone who obeys the law.
This is why the punishment, which restores the law, is directed against the free will. It is force against person and property and is thus appropriate to the guilty party (confession, or “I deserve punishment”). Prevention and rehabilitation are secondary goals derived from the actual purpose of punishment, and reflect an awareness that punishment has nothing to do with preventing crime, although this fact is of no interest to sociological-minded advocates of useful punishment.
When the measure of punishment is fixed by seemingly contradictory standards for different violations (e.g. white collar crimes versus robbery), this only goes to show that the state has a different interest in different offenses. And by making emotional impulse a mitigating circumstance when assessing how deliberate an action was, the law makes allowance for the sad reality of bourgeois society, that quite a bit of will power is required to tolerate all the restrictions. This also explains why a calculating will, which is highly appreciated in other situations, counts as a base motive when it breaks the law.
3. The purpose of public or administrative law (as opposed to private law) is to regulate the state’s subjection of citizens to the law created by … the state! It is thus concerned with the constitutionality of the form and content of legislation, and the application of laws, dealing with such different spheres as legislative procedure, courts and police, taxes, science, etc. Here the state subjects itself in all its actions to its own law, judging itself as a legal subject when passing its laws (legislature), executing them (executive) and dispensing justice (judiciary). While the ideology of the separation of powers takes great pride in this ingenious system of mutual checks and balances on state powers, one can imagine how immensely useful it really is. (See Marx’s, “The Constitution of the French Republic Adopted Nov. 4, 1848,” which appeared in Notes to the People, No. 7, June 14, 1851.)
d) Historical remarks
The legitimate power of the state, which citizens accept as restricting their interests, resulted historically from struggles against a sovereign whose power over society was not subordinated to the purposes of society. This in contrast to the constitutional state based on the rule of law.
Against a ruler whose word was law, the struggle was waged to universalize justice, to separate it from the ruler’s own personal will. The demand for freedom and equality was accompanied by a fight aimed at committing the lawmakers to the will of the people, subjecting the government to the law and making the courts independent. Hence came the doctrine of the separation of powers.
In some countries the bourgeoisie fought this battle successfully. In Germany on the other hand, where a bourgeois state failed to establish itself, philosophers proclaimed its necessity in treatises on the ideals of this form of state. The philosophy and literature of the Enlightenment promoted the bourgeois state by deducing its moral principles, for example, in the practical philosophies of Kant and Fichte.
The emergence of American democracy differs from that of its European cousins. The seizure of the unowned land brought with it free competition and the right of the stronger, forcing these competitors to establish a state. In this case, the state was the result of the actions of free property owners, who assigned sovereign rights to the state power only in so far as they seemed useful for competition. It was therefore, from the outset, solely a means of furthering the competitive interests of the people, the first democracy which even today shows its rough practices!
Citizens want the law for the sake of personal advantage, despite the fact that it also restricts them. To seek their advantage, then, they also have to want those restrictions imposed on themselves, and this is what morality is. Moral citizens justify their submission to a damaging power by citing the ideal of that power, adding their own private virtue to the force imposed on them. Thus, they not only abide by the law, they also have a righteous attitude which allows them to endure their obedience. They measure all their actions against the ideal of righteousness, so that whenever they violate their duties in the pursuit of their advantage, they do so with a bad conscience. If repeated success leads them to forget to judge their actions as good or bad, other people’s judgments will invariably remind them. Likewise, they themselves will serve as a bad conscience to other people, engaging in public hypocrisy.
This area of morality demonstrates remarkably well that the “Good” is a mere semblance, rendering its best services only when upheld as an ideal. Those who try to actually practice these ideals are therefore contemptuously called “idealists.” Citizens allow their young ones a certain attachment to ideals. They can be sure that the hard world of work will transform any such “unrealistic” enthusiasm for ideals into the moral employment of these same ideals in the interest of personal gain. Adult moralism, on the other hand, is considered an annoying trait of character. Terming an adult an idealist therefore always means accusing him or her of being blind to reality or unable to cope, an accusation commonly directed to anyone wanting to make some changes, even before presenting any danger to society.
Morality is thus anything but a superfluous accessory to the bizarre spectacle of democratic life. It is the subjectivization of force accepted for the sake of success. That is to say, morality is the force of law made into something subjective, the will of the state made into the will of the individual. It is the attitude one needs in order to cope with the forbearance that success requires. It may even last through long periods devoid of any personal advancement, proving true to its purpose both on the sunny side and on the bleak side of society. In the first case it is a welcome accessory to one’s success. Successful people proclaim nonchalantly that they have higher aims, the Good, the True and the Beautiful. In the second case its popular forms offer consolation in the face of misery. In both cases the glorification of abstinence is itself abstinence as far as changing things is concerned.
It is therefore no surprise that, in the most modern of societies, the prevailing moralism is a hard nut to crack for radical critics. This moralism is not only a theoretical matter, a form of false consciousness. From the seamstress to the First Lady, people have an urge to practice the ideals of altruism, modesty, honesty, compassion, charity, etc. Everyone donates to the Cancer Fund, UNICEF and so on. People join associations which promote stupidity in young people, firmly believing that this is an opportunity to experience something workaday life denies them: community of purpose, solidarity, friendship. They compensate for the necessity to compete against each other by forming disgusting groups on the basis of their ideals, even if their idealism demands further sacrifices.
Religion ranks first in all this. Christianity was termed by Marx the religion that corresponds to capitalism. The cult of the abstract Christian individual puts into practice the conception of a God who is the supreme, almighty judge, to whom one owes practically everything but from whom one cannot expect any presents, except the gracious permission to be damned careful what one does, in view of one’s original sin. Everybody sins, confesses remorsefully, and is modest enough to pose as the judge of other people’s deeds. For an exposition of the duties which a christian free will demands, one can read Martin Luther’s “The Freedom of a Christian” (Luther’s Works, American Edition, volume 31.)
Even in this form of “spiritual submission” in the Community of Christ, there are some small differences which cannot be overlooked. Some people preach and instil the required morality into others, which has become a genuine profession. Other people adopt this morality, their hypocrisy in the sphere of Christian standards being rather amateurish.
The Church does not limit itself to propagating morality as a theoretical matter, but turns its congregation’s faith into the demand for worldly commitment, which has caused some people to leave the church. This loss of attractiveness of secularized faith is matched by the institution’s meddling in public affairs in the manner of an interest group. The idealism of religion, practiced alongside the materialism of capitalist society, can live with this decline in religiousness. All the more so since the state has long since discovered the useful side of faith in the form of Christian nurses and chaplains in prisons, schools and the armed forces. In some countries the state even collects a church tax. As a byproduct, the zeal of Christian charity stirs up hatred for those who neither love animals, nor contribute to the continuation of bourgeois misery by making an additional sacrifice to the ones already demanded of citizens.
The logic of moral thinking is in keeping with the reason for morality, submission to the state as the price to pay for golden freedom. When citizens in basic agreement with the restrictions imposed by the state are out to gain some advantage at the expense of their fellow man, they will inevitably argue that it would be to the disadvantage of the losers to resist, and would also cause general harm in society. The normal form of disapproving what other people do differs considerably from a true critique, which would have to deal with the aims favored and prescribed by the state in this great society of ours. Normal disapproval is always directed against the freedom of other people, from the standpoint of wanting to take advantage of the existing power for oneself.
This is customary not only in the nasty little things people say to each other privately, but also in the public discussion of basic questions of “human society” and how things in general should be. A decent citizen’s social theory shows strong tendencies toward a fascist condemnation of even the smallest liberties which someone might take (“where would we end up if everyone did that!”). Revisionistic moral philosophy has a slightly different way of dividing citizens and their actions into useful/good versus harmful/bad. The firm point of view of the masses that revisionists like to go by has nothing to do with Marx, although they cite him as their authority. Marx criticized capital and therefore the capitalists, so that he did not think of forming alliances with any of them, no matter how nice and small. Moreover, he did not consider the masses to be basically good but deprived of rights. Nor was financial capital unfair (a nice point of agreement with fascists!) along with all the other unpleasant things in life.
The moral criticism of society, which is summarized in the “Ideologies” section of each chapter of this book, is first-class nonsense when regarded logically, but it makes an immense contribution to orderly life in a democracy. This is noticed by “hippie” types in all countries, who cultivate, in an emphatically immoral way, the needs of the individual in opposition to their taming by bourgeois life. That these alternative ideas, especially regarding ecology and sexuality, are promptly assimilated into bourgeois society testifies to the tolerance of “our” public order. One is allowed to be a little unconventional, as long as it does not interfere with the course of capital and the affairs of state.
Needless to say, the historical forms by which the modern constitutional state was established are also found in the arsenal of stereotypes for paying critical homage to it. The French Revolution with its tremendous ideas, Kantian philosophy with its moral firmament, and the American Wild West are permanent props of modern morality.