8 Haziran 2024 Cumartesi

[Theory of Law]

Mahmut Boyuneğmez

“It is the immediate task of philosophy, which is in the service of history, to unmask self-estrangement in its unholy forms once the holy form of human self-estrangement has been unmasked. Thus, the criticism of Heaven turns into the criticism of Earth, the criticism of religion into the criticism of law, and the criticism of theology into the criticism of politics.”[1]

"What is called the spirit of the law is actually property" (Linguet)[2]

"It is authority that makes the law, not truth" ("autoritas, non veritas facit legem"). (Hobbes, Laviathan, Chapter 26)[3]

"Where there is society, there is law" ("Ubi societas, ibi jus").


Law is not just rules or legislation; the legal structure, as a subset of the state, is also an organization of power through the legal practices and relations it contains. The struggles between the capitalist class and the proletariat and the dynamic equilibrium in power relations are reflected in legal forms. For example, with the neoliberal form of capital accumulation, the decline in the power and organization of the proletariat in power relations has been expressed in legal regulations.

"Law is a system or order of social relations that coincides with the interests of the ruling class and maintains its systematic violence/power."[4] In other words, legal norms are not neutral; legal rules have ideological functions aimed at maintaining the power of the ruling class and become operational through certain social relations/practices within the legal structure. These rules are conditioned by social relations shaped by inter-class struggles. Law is a form in which the policies developed on behalf of the ruling class and which function to maintain the capitalist system of social relations take on the form of legislation.

On the other hand, it is possible to make predictions about the fate of law after capitalism. However, the scope of these predictions can only include the main lines of development. In terms of content, the legal formations of the lived experiences of socialism have an accumulation that can enlighten our path.

I. Function, formation and development of law

"Rule and order are a form of society's ability to free itself from mere arbitrariness and randomness and to make itself permanent. Society achieves this form in the static moments of the process of production and the corresponding social relations, by constantly reproducing itself. If this formation has lasted over a certain period of time, it is petrified as custom and tradition and eventually sanctified as an explicit law. This rule and order is an indispensable element of any mode of production which is to attain social durability and independence from randomness and arbitrariness."[5]

Legal rules are a form of "perpetuating" and reproducing social relations. Not all social relations are transformed into legal forms. But in capitalist societies, law is one of the most comprehensive social regulators. The legal structure, however, is not the only practice and functioning that regulates and reproduces social relations.[6] The fetishism of law, in other words, the view of law as the dominant or only structure that regulates the social system, corresponds to an ideological inversion that is the result of alienation.

Morality (ethics) is another ideological form that protects the order in social relations,[7] created in reaction to the distortions and deviations in social relations. Morality expresses hypocrisy; what gives rise to morality is the objectively ruthless, unsympathetic, unscrupulous and merciless functioning of social relations and their consequences.[8] As an ideology that functions in regulating social relations, morality is related to law through the concepts of right and justice.[9] Law, on the other hand, brings order to the conflicts and contentions between subjects, irregularities and violations in social relations.

"At a certain, very primitive stage of social development, the necessity arises for a common order to govern social production, which is renewed day by day, and the distribution and exchange of the products produced; the necessity arises for the individual to subordinate himself to the common rules of production and exchange. The set of rules, which at first remains a 'custom', soon becomes a 'law'. Alongside the law, organs to uphold it, public authority, i.e. the 'state', also emerges as a necessity.

"As society develops further, the law develops into a legal system, either narrow or broad. When this legal system becomes more complex, its terminology moves away from that which expresses the ordinary economic conditions of social life. This legal system appears as an independent entity that finds the reasons for its existence and subsequent development not in the prevailing economic conditions but in its own internal logic or, if you like, in the 'concept of will'. People forget that their law derives from their economic conditions of life, just as they forget that they are descended from animals.

"As the legal system becomes a complex and comprehensive whole, a new social division of labor becomes necessary; a class of professional jurists emerges and with them the science of law."[10]

Constitutions, laws and regulations, which are legal texts, owe their existence to social relations as rules that protect, regulate and reproduce social relations. Factors such as historical heritage, the composition of the dominant ideology, the level of development of economic relations, the equilibrium of opposing class interests, and the international conjuncture have an impact on the formation of legal texts. Legal concepts are not abstract creations of the human mind, but concepts that reflect social relations and reproduce these relations in the minds of professionals. Law includes the rules by which social relations are reproduced and regulated through the state. The state is the creator and enforcer of law.

"(...) whatever class is in power, all the requirements of 'civil society' must also be filtered through the will of the state in order to establish their universal sovereignty in the guise of laws."[11]

Changes in social relations and differentiated needs, as well as struggles for rights between classes, are important in the formation of capitalist law during the establishment of the capitalist mode of production. Once legal forms are established, their development continues: "With the changing relations of life, laws inevitably change."[12]

“(...) the path of the 'development of law' is limited, firstly, to the attempt to establish a harmonious legal system and to eliminate the contradictions that would arise from the direct transposition of economic relations into legal principles, and secondly, to the recurrence of violations in this legal system under the influence and compulsion of further economic developments that give rise to new contradictions. (Here, for the time being, I am speaking only of civil law)."[13]

II. Legal structure and rules

The legal dimension of social relations includes relations with legal practices and norms (rules) that regulate people's behavior/actions. Legal practices and relations are constituted by the legal subset of the state, which is the organization of political power (judicial processes in courts, prisons, etc.). Law, as one of the superstructures, has a certain arrangement/organization and functioning, in other words, structure. In capitalist societies, the actions and transactions of individuals and corporates are regulated by the legal structure. In the processes of regulating the behaviour and actions of individuals, organizations and institutions, the legal structure constitutes an alienated (uncontrolled by people) dimension of power relations. The legal structure is an organization of power that ensures people's allegiance to political power through the state's practices of coercion and force[14], through the ideology of law and the ideological content of law itself, and through its relation to the dominant moral conception of rights and justice in society.

Instead of seeing law as a sphere and instrument of power[15] of the ruling class, it should be understood as a dimension of the power relations between the capitalist class and the working class and as a structuring of these relations. In the legal dimension of power relations, ideological values produced through legal practices are at work in addition to practices of oppression/domination. Legal practices result not only in sanctions/oppression but also in the establishment of ideological hegemony over people. The concept of the "rule of law", the liberal ideological understanding that the state and the law are neutral represent an ideological illusion in capitalist social formations. The "rule of law", which means a state limited by law, has never existed as a reality in social life, as evidenced, for example, by the existence of slush funds, illegal secret service operations, and illegal activities of what is misleadingly called the "deep state", but which are in fact carried out by the main parts of the state.

Legal rules reproduce, regulate and protect social relations. In capitalist societies, the dynamic interests of the capitalists, the ruling class, are directly pursued in some branches of law created by the state, for example in private law and labor law. Public law regulates the relations between the state and the governed, as well as fundamental rights and freedoms. Public law, like all law, is conditioned by the economic structure of society. Criminal law, a branch of public law, guarantees the order and functioning of social relations. The level of the proletariat's struggle is reflected in capitalist law in general by the expression of certain rights in the law or the exclusion of these rights from the law. Law, as a dimension and structure of the rule/power of the capitalist class, can only survive if it partially contains and meets the legal demands of the proletariat, the oppressed and exploited class.

Ideological motifs in the common sense, such as traditional value judgments, moral criteria (e.g. justice, rights), non-moral principles and values (e.g. equality, freedom) are massified and encapsulated in legal rules. In the processes of transforming relations of production and exchange into rules in the legal superstructure, mediation takes place through various components of common sense or dominant ideology. Legal rules have ideological contents and functions.

Legal legislation is hierarchical and largely internally consistent. "In a modern state, law must not only correspond to and be the expression of the general economic situation, but it must also be an internally consistent expression of it, which does not contradict itself by conforming to domestic conflicts."[16]

When making a decision in law, the "decision" is formed by reasoning between facts and concepts rather than inferring from rules. Formal logic is in force when examining illegality/legal conformity or criminality.[17]

III. The ideological content and function of law

In religions such as Christianity and Islam, even though societies are predominantly composed of productive masses/workers, there is an understanding of "ummah" that conceals this. Individuals belonging to the exploiting and productive classes are preached to be equal before God. Private and public law similarly recognizes that individuals have equal rights and obligations and are equal before the law. The legal conceptualization of "person", which has its origins in the Roman law "persona"[19] meaning the subject of rights, and equality before the law are ideological assumptions. For example, the Turkish Constitution reads: "Everyone is equal before the law without distinction as to language, race, color, sex, political opinion, philosophical belief, religion, sect and similar grounds."[20] On the other hand, the fact that the law uses the conceptualization of "person" does not mean that it does not take into account the differences between the parties to social relations in some aspects. For example, legal rules regulating the relations between landlord and tenant, seller and consumer, lender and borrower, boss and employee make distinctions between the parties.[21]

Since it is a known reality that there are inequalities and class differences between people, these assumptions of the law are ideological mystifications. Moreover, in bourgeois legal theory/ideology, it is assumed that the state represents the general will of the people, and that citizens are people who live under state power by forming their constitutions through a social contract. "General will" and "social contract" are fantastical ideological concepts that serve to perceive/make perceive social reality differently than it actually is. In the existence and continuity of the capitalist nation-state, it is important that the "nation", which is assumed to consist of equal citizens before the law, is reproduced every day through various practices as a form of ideological consciousness. By the way, the difference with the concept of "people" is that it excludes exploiters and includes productive laborers.

Law protects and reproduces property relations, which are the legal expression of social relations of production. Relations of production, which are relations of exploitation, are legally guaranteed. While the law of inheritance has no meaning for the working people, it ensures that the property of the capitalist class, which exploits them, and also that of the petty bourgeoisie, is passed down through generations. Private property ownership is recognized as a right in the capitalist legal system. The recognition of the freedom to own the means of production and the land is an ideological recognition in accordance with capitalist relations of production.

Under socialism, housing, education, health, social security are rights and this is legally reflected in the constitution and laws. Today, however, according to the capitalist class, these are not rights and should be included in market relations as commodities and should be the subject of buying and selling. In the neoliberal period, legislation was revised/regulated in this direction and put into practice. Ideological struggles over what rights are and are not are reflected in legal regulations.

The liberal ideology's idea of negative freedom, i.e. the understanding that individuals may not impose external restrictions on their thoughts and actions provided that they do not harm others, is reflected in legal rules. In practice, these freedoms are in most cases restricted. Positive freedom, which means the ability of individuals to develop their talents and potentials, to realize their strengths and to act in line with their goals, is not taken into account in capitalist law. This is because for these to be possible, individuals must have equality in their conditions and access to opportunities, and they must be freed from alienated relations of production and social relations.

Restrictions/prohibitions and penalties imposed on freedom of thought, association and the freedom of the press and media, while demonstrating the existence of the legal system as an organization/structure of power, are also components of the ideological struggle of the capitalist class to protect and maintain its hegemony over society.

IV. Law as a structure of hegemony

Althusser states that "Ideological Apparatuses of the State" (ISA) exist and must be distinguished from "Repressive Apparatuses of the State."[22] Althusser's approach to "Ideological Apparatuses of the State" (ISA) is problematic. According to Althusser, the state is "present and at hand" in families with its family ISA, in every school, whether private or public, with its educational ISA, in the press-radio-television channels and even the internet with its communication ISA, in literature, fine arts and sports with its cultural ISA, in this field with its legal ISA, and in other fields of social life with other ISAs. In short, for him, the state is almost everywhere or almost everything (family, literature, etc.) is the state. Whether the state is considered as an "apparatus" or as a "social relation" (which it should be), it cannot exist in almost all processes, organizations and institutions of society, even through ideology. All processes, organizations and institutions of societies are not "apparatuses". Moreover, they cannot be characterized as "apparatuses of the state".

In our view, the power of the capitalist class in capitalist society is constituted and reproduced on a social scale. The social power of the capitalist class is not achieved through the organization of the state alone. There are also economic, ideological (educational, communicative), cultural (literary, artistic, sportive), civil society organizational (unions, associations, foundations, etc.) dimensions of social domination/power. In the relationship established between workers and bosses on the scale of enterprises, there is not only an economic and legal relationship, but also a sovereignty-subordination relationship. The education system and the media contain practices and interpersonal relations that participate in the formation of the hegemony necessary for the social power of the capitalist class. Trade unions, as corporatist organizations that reconcile the interests of the working class with those of the state and the bosses, ensure the attachment of workers to the capitalist system, and so on... We call the organizations that participate in the formation of the social domination/power of the capitalist class in all these dimensions and reproduce this domination/power every day, the hegemony structures of social power.

Hegemony is realized through coercion, compulsion and forcing, fear, intimidation, ideological approval, consent and attachment, distraction and occupation. The social power of the capitalist class is ensured and reproduced through hegemony. Through various social processes, organizations and productions, the social domination/power of the capitalist class is perpetuated.

As a hegemony organization/structure of the social power of the capitalist class, law has both repressive functions (courts, prisons, penal system) and ideological functions.

V. Is law 'relatively autonomous'?

According to Poulantzas, the state and law are relatively autonomous from the economic level. According to him, in capitalist society, the political is separated from the economic. In the production process or in the sphere of circulation, productive laborers are not directly subjected to political violence.[23] Poulantzas also mentions the relative autonomy of the state vis-à-vis the ruling class, the bourgeoisie.[24] For example, it is a reality that the majority of politicians and the bureaucracy today are decoupled from the capitalist class.

Even so, cultural and ideological hegemony over workers is crucial for the reproduction of their labor power, that is, for workers to be able to go back to work every next day. The sustainability of capitalist relations of production, which are relations of exploitation, is only possible when there is ideological hegemony over workers. Furthermore, the relations of exploitation cannot be sustained without the possibility of physical oppression in the case of dissent and without being forced to live and work in the existing conditions of life as a result of the lack of political/ideological alternatives. Workers cannot be exploited without the existence of mechanisms of oppression and without being forced to work because they have no alternative to work.

In our view, capitalism is a system of social relations with economic, political, ideological, cultural, legal and governmental dimensions, which are not separate and isolated from each other, but intertwined and interacting. The legal, state, ideological, political and cultural dimensions of social relations are subject to the most general conditioning by the economic structure/base. The different dimensions of social relations form a system/totality and, moreover, the elements of this system/totality develop unevenly. The economic dimension of social relations does not constitute an isolated "level", an isolated "field" or "space" externally related to other dimensions of social relations. The production of social material life is ensured and sustained not only through economic practices but also through various practices in different dimensions of social relations.

The "relative autonomy" of the vast majority of politicians and bureaucracy from the active capitalist class is an appearance. In essence, politicians and bureaucrats, who are committed to different shades of liberalism, the worldview of the bourgeoisie, or to various sections of the dominant ideological spectrum, are engaged in political, technical and ideological work to maintain the social power of the capitalist class through their ideological commitments.

The apparent neutrality of law, as well as its formalism and generality, cannot be taken as a sign of its relative autonomy from labor-capital relations. This is because the rules and structure of law, as a system, have the function of keeping the irreconcilable opposition of labor and capital in a dynamic equilibrium, making oppositions tolerable and softening them in order to prevent this opposition from turning into contradictions.[25] Furthermore, struggles between classes affect the formation of legal forms.

VI. Rights and justice

“Right can never be higher than the economic structure of society and its cultural development conditioned thereby.”[26]

At different levels of development of social relations, rights and ethical/moral values derived from these relations are formed; they are widely recognized, adopted and given legal forms. Each social formation has sovereign equity criteria, definitions of rights, and an understanding of justice that is shaped according to the production structure of the age in which it exists, and that is translated into ethical values and legal expressions. The concepts of right and justice are moral and at the same time legal concepts.

In each historical epoch, the state of social relations determines what rights are and what they encompass. In the Babylonian Empire, the interests and rights of landowners, priests, merchants and moneylenders were regulated by the laws of Hammurabi. The protection of the rights of slaves in these laws is noteworthy. A slave is the absolute property of his master; he can be sold, transferred, pledged. These are the rights of the master. If the slave does not submit, the law gives the master the right to mutilate him. In this society, even the two segments of free people (mushkinu and amelu/maremelu), slaves and property owners, do not enjoy equal rights. This situation is also regulated in the Hammurabi Code. In the Babylonian Empire, the rural community of free agriculturalists was united by rights and obligations related to irrigation. In the Spartan state, the social strata of spartiates, perioikos and ilotes had different rights. In the Athenian slave democracy, one-sixth to one-seventh of the population of Attica had rights; slaves, women and chattels had no political rights.[27] In the Middle Ages, feudal social relations imposed on serfs the obligation to pay the master's right (cens). Feudal lords have the right of first night, the right to imprison and torture serfs. In fact, feudal drudgery, tribute, taxes were all recognized as the rights of feudal lords, high clergy, nobles and kings.[28]

"In most of the states known to history, the rights granted to citizens have also varied according to their wealth, a fact which clearly shows that the state is an organization of the propertied class to protect against the propertyless class. This was already the case in Athens and Rome for classes organized according to wealth. This was the case in the medieval state, where political power was organized hierarchically according to land ownership. This is also the case in modern representative states, where a certain tax (cens electoral) is paid in order to participate in elections. (...) The democratic republic, (this) highest form of state, no longer formally recognizes distinctions of wealth. In the democratic republic, wealth manifests its power in an indirect, but no less secure way."[29]

With the development of capitalist relations of production, new rights emerged.

"In capitalist bourgeois society, privilege is replaced by law. When the right to property is replaced by the right of every citizen to freely dispose of and enjoy his property, his income, the products of his labor and industriousness, and by the right of privileged land ownership, the right of free parceling and free contract arises."[30]

The liberal principle of freedom essentially refers to the right to property. It is argued that this cannot be restricted. The bourgeois citizen's right to own private property, the right to acquire and dispose of wealth, is recognized as individual freedom. The right to security is defined to protect the personality, rights and property of citizens, which means the protection of the bourgeoisie against the rest of society. Recognized as "inherent rights", these rights are reflected in moral values of justice and also in laws. Marx identifies the origin of these rights in the exchange of values, in other words, in exchange relations:

"This sphere (the sphere of circulation or commodity exchange-MB), within the boundaries of which the buying and selling of labor power goes on and on, was in fact a paradise of man's inherent rights. Only Liberty, Equality, Property and Bentham (the founder of utilitarianism-MB) dominate here. Freedom, because both the buyer and seller of the commodity, say labor power, are only under the influence of their own free will. They contract as free parties and the agreement they reach is nothing but the legal expression of their common will. Equality, because they relate to each other as simple commodity owners and exchange equivalent values. It is property, because these parties dispose of what is their property. And Bentham, because each party thinks only of itself. The only force that brings them together and brings them into relation is selfishness, gain and private self-interest."[31]

Conceptions of justice and rights involve ideological judgments and values. But this does not mean that all of these understandings necessarily serve to support the status quo. In other words, standards of justice are intrinsic to societies, but since social relations involve opposing tendencies, there is also an ideological dimension in which these tendencies and the interests of revolutionary classes are reflected. The struggle of the working class in capitalist society and its opposition to the status quo provides the objective ground for socialist ideology to have critical values, principles, and a conception of justice and rights. It is unthinkable for socialists not to mention rights and justice in their struggles. The socialist understanding of justice as a moral conceptualization does not at all require them to remain neutral between people's interests.

"(...) justice is nothing but a reflection of existing economic relations, sometimes conservative, sometimes revolutionary, elevated to the level of ideology and glorified.

The Greek and Roman conception of justice considered slavery just. The bourgeois conception of justice of 1789, on the other hand, did not consider feudalism just and wanted it to be abolished. In the eyes of the Prussian Junker (landowner), even the miserable Kreisordnung (land reform) was contrary to eternal justice. Now, the concept of 'eternal justice' is one of those concepts which varies not only according to time and place, but also according to people, and which everyone understands differently."[32]

In criticizing capitalist exploitation and its social consequences, moral judgments from the perspective of a socialist society are not superfluous and meaningless. Because the values of the society of the future, the understanding of rights and justice, the principle of freedom, can be foreseen today with our knowledge of the economic structure of this society. The achievements of lived experiences of socialism and the limited rights won in capitalist countries through the struggles of the working class also guide the values and principles to be defended in political struggle.

VII. Changes in rights and law in the neoliberal era

Since public services are subjected to commodity/exchange relations in the neoliberal era, the state's relations with citizens are changing, and public rights obtained through class struggles are being liquidated. Health, education and social security are no longer compulsory rights that must be met by the state when demanded, but are now provided under market conditions.

The requirements of the neoliberal form of capital accumulation determine the arrangement/organization and functioning of the capitalist state, in other words its structure. The form of capital accumulation is constituted by the class structure in a social formation and the way that society articulates with international capitalism.[33] The capitalist state, which functions in the creation, maintenance and protection of the neo-liberal form of capital accumulation, has been restructured with changes in its legal, ideological and political dimensions. As the organization of the power relations between the capitalist class and the proletariat, the state has broken the organization and power of the working class in this power relationship and increased asymmetry, liquidated its social functions towards the class, and acquired authoritarian features.

On the other hand, in the neoliberal era, the legal system is being opened to market relations and a kind of privatization is taking place. Through new methods such as arbitration, mediation, conciliation, short trials, negotiation, and the hiring of judges, the jurisdiction of the state is transferred to the private judicial market. The private judicial system, which has turned into an economic sector, is replacing the national courts, which are in the public interest. This has led to the development of law firms, which are able to generate high revenues.[34]

VIII. Criticism of Pashukanis' law theory

In the years following the publication of his General Theory of Law and Marxism in 1924, until 1936, Pashukanis changed his views and admitted that his original ideas were wrong.[35] Here we would like to evaluate some of the views that Pashukanis put forward in this work.

Law cannot be seen as a superstructural reflection of purely economic relations, for example exchange relations. Pashukanis' thesis that it is exchange relations that constitute law is not correct. Pashukanis writes as follows:

"Just as the wealth of capitalist society manifests itself in the form of an incredible accumulation of commodities, so society appears as an infinite collection of legal relations. Exchange presupposes an economy divided into small units. Relations between isolated private economic units are established by contracts. The legal relation between subjects is nothing but the other side of the relation between commodified products of labor."[36]

Private law reflects and regulates the economic relations of society, as in examples such as Roman Private Law and the French Civil Code (Code Napoléon). However, as can be seen from examples such as the regulation of crimes and punishments, the law of organizations such as associations and trade unions, the rules governing political life, and the law of marriage and divorce, not all law corresponds to the reflection of economic relations.

Pashukanis sees criminal law as "a derivative of exchange relations":

"Insofar as it represents a derivative of the basic form to which modern society is subject, criminal law is part of the legal superstructure: the equivalent form of exchange with all its consequences. The realization of these exchange relations in criminal law is one aspect of the realization of the rule of law, the ideal form of relations between independent and equal producers of commodities who meet in the marketplace."[37]

However, his assessment of the historical development of criminal law shows that this type of law is not a product/derivative of exchange relations.[38]

Pashukanis is also wrong in arguing against the idea that capitalist legal concepts will give way to new concepts under socialism as a reflection of evolving social relations.

"It is said that working class law must find other general concepts and that this search should be the task of Marxist theory of law (...) This tendency looks very revolutionary when it demands new general concepts for working-class law. But in reality, they proclaim the immortality of the legal form and attempt to abstract it from the specific historical conditions that allowed its full development and to present it as capable of constant renewal. The extinction of certain categories of bourgeois law (not this or that commandment, but certain categories) does not in any way imply their replacement by new categories of working-class law. (...) The extinction of bourgeois legal categories would mean the extinction of law in general, the disappearance of the legal element in human relations."[39]

The problem here is this: Why, when the bourgeois categories of law are dying out, should law in general and en bloc also die out?... Socialism, as a social formation, will give superstructural forms to the relations it bears. Within the dynamism of socialist society, it will gradually free the state from class/political determination and socialize it, and transform law into scientific regulatory rules.

"It must be borne in mind that morality, law and the state are forms of bourgeois society. Even if the working class has to use these forms, this does not mean that they will continue to develop with a socialist content. These forms cannot assimilate socialist content; they will have to wither away in proportion as that content is realized."[40]

However, moral values such as the pursuit of the common good, belief in the brotherhood of man ("the brotherhood of man is not an empty phrase, but a reality" (Marx, 1844 Manuscripts)), "not doing to others what you would not want done to yourself", solidarity and cooperation, altruism are some of the principles and values developed under socialism. As the content of social relations changes, the forms of law and the state will be transformed and their content will undergo a metamorphosis.

IX. Communism and law

With the political revolution, the capitalist state and the organization of legal power will be dismantled. Under socialism, law will be rebuilt together with the socialist state and will develop and expand in scope with society. During the social revolution, law will also be used as a means of suppressing old social relations and developing new social relations. In the process of the fusion and dissolution of the state with social organizations (the identification of the state with the public), law will be the natural (not alienated) law of social relations. For example, private property and contractual rights will cease to be rights, and the right to life, the right to housing, the right to health, the right to education, the right to organize, etc. will be constitutionally and legally guaranteed.

The right to consumer goods is conditioned by the economic structure of a socialist society. Here the principle of "from each according to his ability, to each according to his work" applies. This right is still within the narrow bourgeois horizon and is imperfect. Because it does not take into account the differences between people in terms of their abilities, productivity and family structure. It does not take into account people's needs. In fact, under socialism, that is, in the first phase of communism, the rights to education, health care and housing are provided to all producers and there is equality of access to them. The necessary social funds are allocated for these. It must also be said that aid will be provided to compensate for differences between the family structures of producers. Nevertheless, it must be recognized that the standard of distribution applicable to this first phase will depend on the socialist conditions of production. This is the "fair" distribution standard of socialism. Socialism has its own style of distribution and form of justice. Communist society can quickly replace socialism if the process of world socialist revolution does not fail, since the conditions for a worldwide society of abundance exist today. Then the standard of distribution will also change and will be based on the rule of "to each according to his needs".

Under socialism, there is the right to live in prosperity, the right to subsistence (food, potable water, shelter, clothing, basic medical care, a livable environment, etc.) and security (not to be killed, not to be attacked, etc.); the right to speak, organize and assemble; the right to vote, to hold or leave political office and to participate in decisions in all social/economic institutions of which individuals are a part; the right to housing, the right to work, the right to education and health. Under socialism there are principles of justice that govern and regulate social relations. There is freedom of speech and assembly, freedom of conscience and thought, the right and freedom to own individual means of consumption, the right to be protected from arbitrary practices. There is maximum equality of opportunity for individuals to hold various positions and equal participation in decision-making in the institutions in which they participate. The rights of people who are unable to work, people with disabilities are protected by society. Children have the right to a quality and scientific education (free of charge, of course). There is no discrimination between people (the right to equal treatment). Under socialism, the principles of justice and rights in practice will be reflected in laws and the constitution. Obligations such as taxes and the duty of collective defense will also find legal expression.

Under communism, law will be transformed into scientific rules regulating society and people's behavior, and its function of exercising domination and establishing ideological hegemony will be lost. Under communism, instead of definitions of crime and punishment, there will be symptoms that pose a danger to social relations and methods to be applied against these symptoms to protect society.

"The transformation of punishment from its compensatory character into a measure of social defense and the re-education of socially dangerous individuals (...) re-education would no longer be a simple 'judicial consequence' of a court decision sanctioning any 'crime', but would become a fully autonomous social function of a medical and educational nature. (...) The orderly application of the principle of social defense does not require the creation of a separate collection of crimes (and legislatively or judicially prescribed punitive measures), but a clear definition of the symptoms indicating socially dangerous situations and a clear and detailed elaboration of the methods to be applied in each specific case to protect society."[41]

The extinction of law only means the disappearance of domination and the ideological functions of law.[42] Under communism, law does not disappear. Because "ubi societas, ibi jus" (where there is society, there is law). In the transition from the period of socialism to the communist world society, legal rules and structures undergo metamorphosis. When people's needs are adequately met in the abundant society of communism, when there is equality of access to all opportunities for all, when people have control over their living conditions, that is, when they are free from alienation, there is no point in talking about justice and rights. Law has no other existence here except as a written record of the principles of the functioning of society and as the scientific organizing principles of social relations.


[1] Karl Marx, The Introduction to a Contribution to the Critique of Hegel's Philosophy of Right https://www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm

[2] Karl Marx, Capital Volume 1, Sol Yayınları, 7th Edition, 2004, p. 587

[3] Taner Yelkenci, Marxist-Leninist State Theory, in Marxist State and Law Theory, NotaBene Publications, 1st Edition, 2013, p. 90

[4] Taner Yelkenci, Marxist-Leninist State Theory, in ibid, p. 89

[5] Karl Marx MEW XXV, 801 as cited in Rona Serozan, op. cit. pp. 26-7

[6] "Not all social relations take legal forms, nor is law the only instrument that regulates social relations." See; Onur Karahanoğulları, Diyalektik Hukuk Bilimi Notları, in Marksizm ve Hukuk, Yordam Kitap, 1st Edition 2018, p. 205

[7] "From the moment of the development of private ownership of movable property, all societies in which this private ownership prevailed had to have in common the following moral commandment: Thou shalt not steal." See Friedrich Engels, Anti-Dühring, Sol Publishing, 4th edition 2003, p. 160

[8] "Moral platitudes are inextricably linked with and nourished by the immorality of social practice. (...) This hypocrisy of the ethical form (...) is the fundamental distinguishing feature of the ethical form." See; Evgeny B. Pasukanis, General Legal Theory and Marxism, Birikim Publications, 1st Edition, 2002, p. 164

[9] "Justice is the stepping stone that leads to ethical law." See Evgeny B. Pasukanis, op. cit., p. 168

[10] Friedrich Engels The Housing Question as cited in Rona Serozan, op.cit., p. 27

[11] Friedrich Engels Ludwig Feuerbach and the End of Classical German Philosophy as cited in Rona Serozan, ibid., p. 28

[12] Karl Marx Speech at the Trial of the Committee of Democrats of the Rhine Region, quoted in Rona Serozan, op. cit. p. 37

[13] Karl Marx-Friedrich Engels, Selected Correspondence 2, Sol Yayınları, 1st edition, 1996; Letter from F. Engels to Conrad Schmidt dated 27.10.1890, p. 243

[14] "While oppression implies the existence of a deliberate (perpetrator or oppressor), forcing requires nothing more than the existence of constraints that leave no room for choice. If I cannot find work elsewhere, I am forced to live in my own town, but if I am arrested if I try to leave it, I am coerced to live there." See Jon Elster, Making Sense of Marx cited in R.G. Peffer, Marxism, Morality and Social Justice, 1st edition, 2001, p. 154

[15] "Law (...) is a sphere of power that is as real and subject to constant struggle as state power." See Onur Karahanoğulları, a.g.e., p. 141

[16] Karl Marx-Friedrich Engels, op. cit. p. 242

[17] Onur Karahanoğulları, op. cit. pp. 139-40

[18] Taner Yelkenci, Marxist-Leninist State Theory, in ibid, pp. 94-5

[19] The Latin word "persona" means mask. In Rome, when actors appeared on stage, they wore masks of the characters they represented. These masks were fixed for each role. This word, which was used to describe acting, was gradually used to describe the role played in life. Today's legal meaning is a person who has the legal capacity (see: https://dergipark.org.tr/en/download/article-file/504794).

[20] Turkish Constitution, Article 10, https://www5.tbmm.gov.tr/anayasa.htm

[21] Ronnie Warrington, Pashukanis and the Theory of the Commodity Form, in Marxist State and Legal Theory, p. 130

[22] Louis Althusser, Ideology and Ideological Devices of the State, Trans: Alp Tümertekin, Ithaki Publications, First Edition, 2003

[23] Sonja Buckel, The Legal Concentration of Power Relations: Nicos Poulantzas and Law, in Marxist State and Legal Theory, NotaBene Yayınları, 1st Edition, 2013, pp. 279-301

[24] Nicos Poulantzas, The Problem of the Capitalist State, eds: Bertell Ollman, Kevin B. Anderson, in Selection of Contemporary Marxism - Texts of the Century, 1st Edition, 2019, pp. 316-28

[25] "Four basic functions of the state have been emphasized: First, to provide the general conditions of production (infrastructure); second, to determine general legal norms, both for the members of society and for the state's own right to intervene directly; third, to balance the contradiction between labor and capital not only by law but also by the 'repressive apparatus of the state'; finally, to guarantee through diplomatic and military policy the ability of all national capital to compete on the world market." Elmar Altvater, Jürgen Hoffmann, The State Derivation Debate in West Germany: The Relationship between Economy and Politics as a Problem of Marxist State Theory, in Marxist State and Legal Theory, NotaBene Yayınları, 1st Edition, 2013, p. 322

[26] "Right can never be higher than the economic structure of society and its cultural development conditioned thereby." See; https://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm, Karl Marx, Critique of the Gotha Program

[27] V. Diakov, S. Kovalev, Primeval History, V Publications, First Edition, 1987, pp. 110, 113, 114, 117, 358, 422

[28] See; Friedrich Engels, Peasants' War, Sol Publishing

[29] Friedrich Engels The Origin of Family, Private Property and the State, Sol Publishing, 7th Edition, 1979, pp. 223-4

[30] Karl Marx-Friedrich Engels, The Holy Family as cited in Rona Serozan, ibid., p. 52

[31] Karl Marx, Capital Volume 1, Sol Yayınları, 7th Edition, 2004, pp. 178-9

[32] Friedrich Engels The Housing Question as cited in Rona Serozan, op.cit., pp. 27-8

[33] Haldun Gülalp, Capitalism, Classes and the State, pp. 69-73

[34] İlhan Gülhan, Backtracking with the counterrevolutionary bourgeoisie, https://sendika.org/2023/06/karsidevrimci-burjuvazi-ile-geriye-donus-686105/

[35] On this subject, see Norbert Reich, Marxist Legal Theory Between Revolution and Stalinism: Pashukanis Example, in Marxist State and Legal Theory, NotaBene Publications, 1st Edition, 2013, pp. 183-98

[36] Evgeny B. Pashukanis, op. cit., p. 83

[37] Evgeny B. Pashukanis, op. cit. p. 186

[38] "Criminal law has its historical roots in the tradition of bloody retribution." "It was only with the development and establishment of the system of reconciliation or monetary compensation that revenge began to be regulated by custom and transformed into compensation based on the rule of 'an eye for an eye, a tooth for a tooth'." "Retaliation, which is a purely biological phenomenon, becomes a legal institution as soon as it is linked to the exchange of equivalents, a form of exchange measured in values." "The feudal lord punished peasants who refused to submit and townspeople who opposed his rule. The united cities hanged robber knights and destroyed their castles. In the Middle Ages, the individual who wished to practice a profession without joining a guild was considered to be in violation of the law; the capitalist bourgeoisie, as soon as it was born, criminalized the gathering of workers in associations." See Evgeny B. Pasukanis, op. cit., pp. 177, 178, 179-80, 184

[39] Evgeny B. Pashukanis, op. cit. pp. 55-56

[40] Evgeny B. Pashukanis, op. cit. p. 167

[41] Evgeny B. Pashukanis, op. cit. p. 196

[42] Onur Karahanoğulları writes: "State and law are not eternal forms. The beginning of their erasure from human history is not the moment of revolution, nor can a date or stage be given for the day they will disappear. It is also possible for law to tend towards extinction within capitalism." See Onur Karahanoğulları, a.g.e., p. 231. In our view, state and legal structures/organizations will be "socialized" in the period of socialism, in other words, they will melt into social organizations and fuse with them. It is unreasonable to talk about the tendency of law towards extinction under capitalism.

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