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James Burnham

Their Government

(17 March 1939)


From Socialist Appeal, Vol. III No. 16, 17 March 1939, p. 4.
Transcribed & marked up by Einde O’ Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL).

I was in Chicago at the time when the Fansteel sit-in strike was being smashed. I remember talking about it to a brilliant and thoroughly realistic young corporation lawyer who was a friend of the attorney for the Fansteel company. During the conversation I remarked, “I suppose that with this wave of sit-downs upsetting the bosses there will soon be some new laws passed to declare all types of sit-downs illegal?”

His reply showed an admirable lack of illusions about the function of law in capitalist society. He put it in more or less these words:

“There isn’t any need for new laws. There are plenty of laws on the books already that prove sit-downs illegal. How could it be otherwise? But when the workers by hundreds and thousands occupy the factories, the letter of the law doesn’t settle anything. We would have to bring to machine guns to clear them out, and under the present circumstances we can’t do that. Wait until the workers quiet down again, and then you’ll see the law get into action.”

What the Law Is For

This young man, who has cynically rented out his talents to the highest bidders, understands the task of the law – that is, of the statutes, legal “theory,” the courts, police and jails. He knows that the law is an integral part of the state, and that the central business of the state, to which all else is subordinated, is to defend the property rights of the bourgeoisie in the instruments of production. Consequently, in private conversations he does not bother with any hokum about “abstract Justice.”

The bourgeoisie, in general, is perfectly clear in its own mind about the nature of the law. It uses the law as an instrument in the class struggle, an immensely effective instrument in maintaining its dominance over the masses. The bourgeoisie cannot afford to fool itself with high-sounding phrases.

Most workers, unfortunately, are not clear about the law. Never-ending propaganda assures them that the law administers impartial justice to all members of society. An anti-strike injunction or a Fansteel decision comes as a puzzling shock and disappointment. And, not being clear about the law, not realizing that the law is not “society’s law” or worker’s law, but solely and exclusively the bosses’ law, the workers are handicapped in their unavoidable fight against the law.

The Law and the Factories

For a capitalist, the right to private property means first and foremost the free and untrammelled ability to own and use in any way he may see fit the instruments of production. It means that he shall have at all times free access to these instruments, and that he on his own decision shall be able to grant or refuse such access to others: that he himself shall decide whether or not to employ the instruments to turn out goods; that the entire product of the instruments shall belong to him.

He and his fellow-capitalists have constructed their state to defend this right by all necessary means. However, in the course of the development of capitalism, the original right to private property suffers some modification and limitation.

These limitations are roughly of two sorts: one type is a concession forced on the state by the strength of the workers (for example, the workers’ right to strike and picket, both of which are limitations on the capitalist’s right to private property); the other and more frequent type is imposed by the bourgeois state itself, acting as representative of the entire capitalist class, in order to protect the system of private property against being undermined by the too anarchic practises of individual capitalists (for example, “blue sky laws,” “fair marketing agreements,” laws governing fulfillment of contracts, etc.)

Capitalists, as individuals, usually resent both of these types of limitation, but it is only against the first that they carry on and must carry on a bitter and decisive struggle. The second type is in the final analysis a mode of self-preservation for capitalism – in its last stage taking the form of fascism. The first means a direct invasion by the class enemy, means that the workers are stretching their hands toward the seat of power, toward control over the factories and machines and mines which, if really won, would give them control over society as a whole.

Sit-Downs and the Law

In a sit-down strike, the workers do not merely limit but indeed negate the property right of the capitalist. It might be said that, in a passive way, they establish control, direct physical control, over the instruments of production. From this it is, really, only a small step to active control, to the workers going on to start up the machines again, but as masters, not slaves, of the machines. And that, of course, would be the socialist revolution.

This is why the law, the bourgeois law, would not, could not, will not ever recognize sit-downs as legal. And this why workers, if they are ever to achieve their own emancipation, must throw off the shackles of bourgeois law, to replace it with the workers’ law.

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