The Ethical Foundations of Marxism Eugene Kamenka 1962

3. The Natural Law of

THAT Marx should have begun his political activity by upholding natural law is hardly surprising. We have already seen the strength of Marx’s rationalism. At Berlin, Marx had attended lectures on jurisprudence by Gans, the Hegelian opponent of Savigny, and as an undergraduate Marx had planned a major work demonstrating the rational foundations of jurisprudence — a work which he abandoned as soon as he had realised that his plan depended upon the separation of what ought to be from what is.[31] Soon after graduation, Marx wrote for the Rheinische Zeitung a vicious attack on the historical school of jurisprudence and on the morals[32] of Hugo, whom Marx regarded as its real founder. To treat law as an expression of the historical power of the ‘irrational’, as the tradition of a people or as an organic growth always true for its society, Marx insists, is to abandon all legal standards, to treat whatever occurs as legally and morally right. For Marx, law is Reason — seen not as an abstract faculty, tom out of history, but as the rational exposition of the necessary rules involved in the very nature of the activities with which law is concerned. In his discussion of a new Prussian divorce bill,[33] Marx writes confidently:

The legislator must regard himself as a scientist. He does not make laws, he does not invent them, he only formulates them, he enunciates the inner laws of spiritual relationships as conscious positive laws.
(M I, 1-i, 318.)

It is this view which a little later — in the first Hegel critique — enables Marx to give a short answer to the antinomy that worried Hegel: the fact that the legislator derives his authority from a constitution itself created by legislators. ‘The legislative power,’ Marx retorts, ‘does not make the law; it only discovers and formulates it’ (M I, 1-i, 468).

The process of ‘discovering’ the rational natural law is not one that Marx is able to describe clearly. As in morality, so in law his position makes it easier to state what is not moral or truly legal, than what is. There is much vague talk of ‘concepts’ — the ‘concept’ of the press (which is taken logically to exclude censorship), the ‘concept’ of the public service, the ‘concept’ of marriage — from which positive rules of law are supposed to flow with logical necessity. Marx’s most serious attempt at a concrete treatment is in the article on divorce. Marriage, he argues, is ‘according to its concept’ indissoluble — but some human relationships no longer correspond to their ‘concept’, i.e., are no longer marriages. The State may therefore dissolve them in law, but only because they are already dissolved in fact.

The dissolution of a marriage is nothing but the declaration: this marriage is a dead marriage, whose existence is a snare and a delusion. It is self-evident of course, that neither the capricious will of the legislator nor the capricious will of a private person, but only the essence of the matter, can decide whether a marriage is dead or not, for it is well-known that a declaration of death depends on the facts of the case and not on the wishes of the parties concerned. But if in the case of physical death you demand precise and unmistakeable proofs, must not a legislator lay down a moral death only after the most incontestable symptoms?
(M I, 1-i, 319)

What these ‘incontestable symptoms’ are, how we derive them logically from the ‘concept’ of marriage, or how we would defend any particular criterion against those who reject it, Marx is unable to indicate. Conscious of the deficiency, he falls back on a vague popularism:

The guarantee that the conditions under which the existence of a moral relationship no longer corresponds with its essence will be laid down truly, in accordance with the state of knowledge and of universal opinion, without preconceptions, can be found only when law is the conscious expression of the will of the people, created with the people and through it.
(MI, 1-i, 319)

Fundamentally, Marx is working with the general — truly universal and truly universalisable — will of Rousseau and Kant. For all the talk about concepts and specific spheres, both law and marriage become mere expressions of the human essence and its allegedly universal will. This indeed is Marx’s basic position:

Where the law is true law, that is, where it is the existence of freedom, it is the true existence of the freedom of man. The laws, therefore, cannot forestall man’s actions, for they are the inner rules of life of his activity itself, the conscious mirror images of his life. Law hence retreats before man’s life as a life of freedom, and only when his actual actions have shown that he has ceased to obey the natural law of freedom, does the State force him to be free. (Debates on press freedom, M I, 1-i, 210.)

The apparent assertion of positive codes of natural law is confined to Marx’s earliest work. We do not meet it again. But his main view that ‘true law’ is freedom, the inner moral consciousness of the truly human and truly self-determined man, remains at the core of his mature belief in the withering away of the State and of the official Communist doctrine that under Communism law will wither away to be replaced by the inner moral consciousness of the Communist citizen.[34] So does his insistence that man must throw off anything that determines him from outside. This is why Marx utterly rejects the intrusion of religious conceptions into law, why he rejects the lawgiver who ‘does not regard human morality but spiritual holiness as the essence of marriage, and thus puts in place of self-determination determination from above, in place of the inner natural inspiration a supernatural sanction, in place of the loyal submission to the nature of the relationship a passive obedience to decree.'[35] As we have seen, throughout his life Marx insisted that religion, by seeking to make man submit to illusions which man himself created, turns the free and self-determined man into a debased animal, determined from without. Two years later, in the Holy Family, Marx discusses the penal theory of moral regeneration which Eugene Sue seeks to exemplify in his novel The Mysteries of Paris and makes this point time and time again. Each one of Sue’s characters who goes through ‘moral regeneration’, according to Marx, comes out the less a man (or woman) in a moral sense. Each ‘criminal’, originally full of vitality, is made dependent or cringing, robbed of his or her talents, brought to anguish and submission:

As Rudolph [the moral regenerator] kills Fleur de Marie by handing her over to a priest and to consciousness of sin, as he kills Chourineur by robbing him of his human independence and debasing him to a bulldog, so he kills the gangleader by having his eyes gouged out so that he can learn to ‘pray’.[36]

Marx’s own theory of punishment and regeneration rests squarely on his belief in the truly human society of the truly self-determined man. Marx contrasts what he considers to be Hegel’s merely apparent demand that the criminal become the judge of his own crime with the genuine fulfilment of this demand under ‘human’ conditions:

Hegel holds that the criminal must as a punishment pass sentence on himself. Gans developed this theory at greater length. In Hegel this is the speculative disguise of the old ius talionis that Kant developed as the only legal theory of punishment. Hegel makes self-judgment of the criminal no more than an ‘Idea’, a mere speculative interpretation of the current empirical penal code. He thus leaves the mode of application to the respective stages of development of the State, i.e., he leaves punishment as it is. Precisely in that lie shows himself more critical than his Critical echo. A penal theory which at the same time sees in the criminal the man can do so only in abstraction, in imagination, precisely because punishment, coercion, is contrary to human conduct. Besides, this would be impossible to carry out. Pure subjective arbitrariness would take the place of the abstract law because it would always depend on official ‘honest and decent’ men to adapt the penalty to the individuality of the criminal. Plato admitted that the law must be one-sided and must make abstraction of the individual. On the other hand, under human conditions punishment would really be nothing but the sentence passed by the culprit on himself. There will be no attempt to persuade him that violence from without, exerted on him by others is violence exerted on himself by himself. On the contrary, he will see in other men his natural saviours from the sentence which he has pronounced on himself, in other words the relation will he reversed.
(M I, 3, 356; cf. HF 238-9.)

Marx began, as we have seen, with a positive conception of rational law and rational legal rules, which courts could and should apply.

Yet, almost in the act of stating this conception, he finds it disintegrating in his hands. For if law is the expression of freedom, if the criminal must suffer no violence from without, then, under truly human conditions, law must simply disappear. This, indeed, is what the mature Marx believed would happen. He was able to do so because he saw true freedom as necessarily requiring the truly co-operative, truly human, society.[37]