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struggles to realize their rights as laws. The character
of the legislation which the working class thus advocates
and strives for, is diametrically opposed to all the funda-
mental principles of modern or bourgeois law. It is based
on the right of persons instead of property rights, and on
social regulation, control and protection, instead of the
principles of free competition and non-interference. And
as the working-class movement grows in strength, intelli-
gence and determination, the ruling classes are forced to
make concessions to it, either by way of granting or fore-
stalling its demands.

This is the secret of the recent reaction against the
sacred "laissez-faire" principle of modern law, and the



SOCIALISM AND LAW 85

source of all "social legislation" of the last few decades.
In Germany, social legislation was inaugurated at a time
when the socialist movement had demonstrated that it
was strong enough to withstand the assault of the anti-
socialist laws. The motive of the government in intro-
ducing such legislation was revealed by the Iron Chan-
cellor with his characteristic frankness in the following
speech, delivered in the Imperial Diet in 1881 : —

"That the state should take better care of its needy
members than heretofore is not only a dictate of humane-
ness and Christianity, but also a necessity of conservative
politics which should aim to cultivate in the non-possessing
classes of the population, who are at the same time the
most numerous and least instructed, the view that the state
is not only a necessary but also a beneficent institution.
To this end they must be led by means of direct advantages,
derived through legislative enactment, to consider the
state not as an institution created solely for the protection
of the possessing classes, but as one serving their own
needs and interests. The objection that such legislation
would introduce a socialistic element must not deter us
from our course."

In France the first social legislation was introduced by
Napoleon III as a measure intended to combat the grow-
ing influence of the International Workingmen's Associa-
tion. In England, in the United States and in all other
modem countries, the beginnings of systematic " factory
legislation" coincide, broadly speaking, with the begin-
nings of the organized labor movement, and its extension
keeps pace with the growth of the labor movement.

The current of social legislation takes two distinct
directions, one being designed to protect the workmen, and



86 THE SOCIALIST PHILOSOPHY AND MOVEMENT

the other to regulate and limit the power of industrial
capitalism. To the former class belong the laws pro-
viding for workingmen's insurance in case of sickness
and disability, the old-age pension laws, and the large
body of laws popularly known as Factory Legislation,
i. e., laws limiting the hours of labor of women and chil-
dren, and of men in certain lines of employment, estab-
lishing rules for the health and safety of the operatives in
mines, mills, factories and other works, extending the
liability of employers for injuries sustained by their work-
men, regulating the payment of wages, and similar meas-
ures affecting the duties of employer to employed.

In the second class of legislation must be counted all
laws which attempt to check the excessive accumulation
of wealth in the hands of private individuals, such as the
income and inheritance tax laws, and laws having for their
object the control and regulation of certain industries,
such as railroading, banking, insurance, etc.

The net result of all such social legislation is as yet
insignificant. On the whole it has had no great effect
in improving the condition of the poor or limiting the
power of the wealthy. But the importance of this line
of legislation lies not in its positive achievements as
much as in its symptomatic significance. The "social"
laws of the last few decades mark a growing change in
the popular conception of the office of legislation — the
approach of a new legal system expressive of a new social
era. For the forces that gave birth to the weak rudiments
of social legislation are still at work, steadily gaining in
extent and intensity. The struggles of the organized
workingmen of all countries for a fair distribution of the
national wealth and for equitable social relations among



SOCIALISM AND LAW 8/

all men are finding ever stronger support among all classes
of the population, and are bound to continue. The
logical end of all legal reforms accompanying these strug-
gles is the substitution of a system of law based on
the principle of socialism for the present individualistic
system.

And while it would be folly to attempt at this time a
comprehensive outline of a socialist system of law, we
have sufficient concrete data in the present tendencies of
social development to enable us to indicate the funda-
mental principles and general aspect of that proposed
system of jurisprudence.

A socialist society is one based on the system of public
or collective ownership of the material instruments of pro-
duction, democratic administration of the industries, and
cooperative labor; and the guiding principle of such so-
ciety must be the recognition of the right of existence and
enjoyment inherent in every human being.

The function of law under socialism will of necessity
be to insure the stability of these principles and institu-
tions, just as it has been its function at all earlier periods
of human civilization to insure the stability of the institu-
tions of such periods. But in a socialist society the func-
tion of law will be largely simplified by the disappearance
of class distinctions. In a society of industrial equals, in
which the material interests of all citizens are identical, and
the interests of every citizen accord with those of the state,
the motives for all crimes against property and for many
crimes against the person are removed, and with their
removal disappears the necessity of legislating against
such crimes, while the abolition of private competitive
industry and trading must have the effect of eradicating



88 THE SOCIALIST PHILOSOPHY AND MOVEMENT

from our statute books the major part of all our civil and
commercial laws.

In direct opposition to the modem system of law, which
deals largely with the reciprocal relations and private
conduct of individual citizens, and pays but scant atten-
tion to the industrial Hfe of the nation, a socialist system
of jurisprudence must of necessity occupy itself primarily
with the regulation of the social processes of wealth pro-
duction and distribution, and Hmit its interference with
the private life and conduct of the citizen to a minimum.



CHAPTER V

SOCIALISM AND THE STATE

Nature and Evolution of the State

One of the most interesting theoretical discussions that
ever occupied a modem political parliament was that con-
ducted in the German Diet on the occasion of its delibera-
tions on the proposed budget of 1893. I^ was towards
the close of the session ; the dissolution of the Diet was
imminent, and the Social Democracy, which in the pre-
vious elections had polled close to one and a half million
votes, loomed up large as a menacing factor in the com-
ing elections. By common accord the subject under im-
mediate consideration was suspended, the debate of the
Diet was made the pretext for an electoral campaign and
the sole topic of discussion was the proposed Socialist
State. It was a battle royal which lasted three consecu-
tive days. The most eloquent speakers of all anti-socialist
parliamentary parties in Germany took part in the debate,
mercilessly criticising the socialist aims and ideals, and
demolishing the structure of the proposed socialist state
as they conceived it.

When the turn came to the brilliant socialist leader,
August Bebel, he rather nonplussed his colleagues in the
Diet by the somewhat startling declaration that the phrase
"SociaHst State" was in itself an absurdity, and that a
"state" could not possibly exist under a socialist order.

89



90 THE SOCIALIST PHILOSOPHY AND MOVEMENT

The same idea is expressed by Bebel more explicidy
in his "Woman," where, in discussing the effects of the
proposed economic reforms of socialism on the political
organization of society, he says : —

"The state organization as such gradually loses its
foundation. The state is the organization of force for
the maintenance of existing relations of property and
social rule. But as the relations of master and servant
disappear with the abolition of the present system of
property, the political expression of the relationship ceases
to have any meaning. The state expires with the expira-
tion of the ruling class, just as religion expires when the
belief in supernatural beings or supernatural reasoning
ceases to exist. Words must represent ideas; if they
lose their substance, they no longer correspond to any-
thing." '

This conception of the state is by no means peculiar
to Bebel. It has been expressed by many socialist think-
ers of prominence before and after him, and its source is
to be found in the following passage from the writings of
Frederick Engels, one of the theoretical founders of
modern socialism : —

" By reducing the ever greater majority of the population
to the rank of proletarians, the capitalist mode of pro-
duction creates the power which is compelled to bring
about this social transformation under penalty of its own
destruction. By forcing the conversion of the large
socialized means of production into state ownership, it
points itself the way towards the accomplishment of that
transformation. The wage workers seize the powers of

' August Bebel, "Woman in the Past, Present and Future," San
Francisco, 1897, p. 128.



SOCIALISM AND THE STATE 9 1

the state and provisionally turn the means of production
over to the state. But with this act they aboHsh their
own existence as proletarians, and with this act they
also abolish all class differences and class antagonisms
and the state as a state. Heretofore society was based
on class antagonisms and needed a ' state,' i.e., an organi-
zation of the exploiting classes for the preservation of the
existing methods of production, and more particularly
for the purpose of forcibly maintaining the exploited classes
in the condition of dependence inherent in such methods
of production (slavery, serfdom, wage labor). The state
was the official representative of the whole society ; it was
its union in a visible body, but only inasmuch as it was
the state of that class which represented to it the entire
society: in antiquity, the state of the slave-owning citizens ;
in the Middle Ages, that of the feudal nobility; in our
times, that of the bourgeoisie. By actually becoming the
representative of the whole society, the state becomes
superfluous. As soon as there is no longer any class in
society to be held in subjection, as soon as the class rule
and the struggle for existence based on the modern an-
archy in production are removed, and with them also
the resultant struggles and excesses, there is nothing
more to repress, nothing requiring a special repressing
power, a state. The first act in which the state appears
as the representative of entire society — the seizure of the
instruments of production in the name of society — is at
the same time its last independent act as a state. The
interference of the state with social relations becomes
superfluous in one field after the other, and the state,
as it were, falls asleep. The government of persons is
replaced by the administration of thuigs and the regula-



92 THE SOCIALIST PHILOSOPHY AND MOVEMENT

lion of the process of production. The state is not ' abol-
ished/ it dies off. The phrase of the 'socialist state'
may thus be judged for its value as a slogan in the tem-
porary propaganda of socialism, and for its scientific
inefficiency." ^

It will be noticed that the socialist writers quoted see
in the state a social institution different and apart from
organized society as such. This is by no means the
prevalent conception, and in fact there seems to be no
fixed and generally accepted definition of the term in the
popular or scientific literature of the subject. Few ex-
pressions are used so vaguely and loosely as the term
"state." A large number of authoritative sociological
writers and lexicographers by implication consider the
state as a term synonymous with organized society, and
expressly define it in that sense.^

The fault of all such definitions is, that they do not

• Frederick Engels, "Herrn Eugen Duhring's Umwalzung der Wis-
senschaften," 3d Edition, Stuttgart, 1894.

* "The whole body of the people united under one government, what-
ever may be the form of the government." — Webster's Dictionary.

"The state (x6Xis) is an association of human beings — and the
highest form of human association." — Aristotle.

"The state (respublica) is the creature of the people, the people united
by a common sense of right and by a community of interest." — Cicero.

"The state is organized mankind." — JOHANN K. Bluntcshli in
"Lehre vom modernen Staat."

"The state is an assemblage of persons united under the same gov-
ernment." — Turcot.

"The state is the people living within certain geographical limits.
It represents a body of people having, in general, like sentiments, feelings
and aims, to carry out which they originate some organic law which pro-
vides for ministers or officers, and they constitute the government, which
is but the agent of the people in executing the laws they have ordained."
— Carroll D. Wright in "Outline of Practical Sociology," New York,
1899, pp. 88, 89.



SOCIALISM AND THE STATE 93

define. All human society in a state of civilization is or-
ganized, and the term "organized society" applies with
equal force to the collectivity of contemporary mankind as
to each separate nation or community. The "state" has
a more limited and definite significance, and is more
properly defined as a body of people united under one
political government.^ That the distinction is not a mere
scholastic quibble, but a very material and weighty dif-
ferentiation, becomes apparent as soon as we attempt to
analyze it. Every political government is not only well
defined territorially, but it also has certain other fixed
and essential attributes: it must be based on a constitu-
tion or on the will of an individual sovereign; it must be
supported by laws that can be enforced ; it must have the
machinery to enforce such laws and the power to raise
revenue for the maintenance of such machinery; it must
also be represented by a person or class of persons invested

' "A political community organized under a distinct government,
recognized and conformed to by the people as supreme." — Standard
Dictionary.

"When a number of persons are supposed to be in the habit of paying
obedience to a person, or an assemblage of persons of a known and certain
description, such persons altogether are said to be in a state of political
society." — J. Bentham in "A Fragment of Government."

"The supreme will of a state, in whatever mode of sovereignty mani-
fested, expresses itself and achieves its ends in various ways, but chiefly
through Government, which may be defined as the requisition, direction
and organization of obedience." — Franklin H. Giddings in "Read-
ings in Descriptive and Historical Sociology."

"The state is an aggregation of individuals living in the same terri-
tory under the government of one supreme power." — Anton Menger
in "Neue Staatslehre."

"The state is sovereign, i.e., it has the original, absolute, unlimited
power over the individual subject and over all associations of subjects."
— J. W. Burgess in "Political Science and Constitutional Law," New
York, 1900, p. 4.



94 THE SOCIALIST PHILOSOPHY AND MOVEMENT

with the powers of government. In short, the element
of repression and coercion is essential to the existence of
every state.

" When the political community is regarded as ' society, ' "
says Mr. Ball, "it is looked at as a number of individuals
or classes or professions — as an aggregate of units.
When we speak of the 'state,' we understand a single per-
sonality, as it were, representing all these interests and
endowed with force which it can exercise against any one
of them. In other words ' the state ' cannot be reduced to
'society' or to 'government,' which is only one of its func-
tions, but is society organized and having force." ^

The keen French economist Leroy-Beaulieu observes:
"The concrete state, as we see it at work in all countries,
manifests, as an organism, two essential characteristics,
which it always possesses, and which, moreover, it is alone
in possessing; the power of imposing by methods of con-
straint upon all the inhabitants of a territory the observ-
ance of certain injunctions known by the name of laws
or administrative regulations, and the power of raising,
also by methods of constraint, from the inhabitants of that
territory large sums of money of which it has the free dis-
posal. The organism of the state is, therefore, essentially
coercive; the constraint it exercises takes two forms,
the one of laws, the other of taxes." ^

Charles Benoist in his "Politique"^ states the same
proposition more tersely in affirming that the state may be
recognized by two signs; it makes laws and levies taxes.

' Sidney Ball, "The Moral Aspect of Socialism" in "Socialism and
Individualism," Fabian Socialist Series, No. 3, London, 1908, pp. 75, 76.

^ Paul Leroy-Beaulieu, "The Modern State," English Translation,
London, iPgi, p. 67.

^ Quoted by Gabriel Deville, "The State and Socialism."



SOCIALISM AND THE STATE 95

If we enlarge the definition somewhat, and say, The state
makes and enforces laws and levies taxes, we have men-
tioned the most uniform and indispensable functions of
every state.

But the enumeration of these functions alone is quite
sufficient to convict the state as a product of class strug-
gles. Law as distinguished from mere custom, law in the
sense of a positive command of the state enforceable by
a penalty, has its inception in an order of things in which
it is already in the interest of one part of the population
to act in a manner prejudicial to their fellow-men, and in
which it becomes necessary for the latter to restrain the
former by force. Such an order of things, however, is
only possible in a class society. Primitive society is a
society of economic equals. The community produces
principally articles of immediate consumption, and that
in quantities barely sufficient for the needs of its members.
There is no opportunity for the accumulation of private
wealth, there are no rich and no poor, and no social classes
of any kind. There is neither motive nor chance for any
man to covet the property or to trespass upon the "rights"
of his neighbor, anji there is no occasion to repress such
desires by force. The primitive social organizations, the
gentes and phratries, have no laws and no instruments to
enforce laws. Courts, judges, constables, prisons and
police are entirely unknown to them; they levy no taxes
or compulsory tribute on their members; they are entirely
free from the element of coercion — they are not states.

It is only when the productivity of human labor has in-
creased to a degree beyond that required for the satis-
faction of his indispensable personal needs, when man has
become a possible object of exploitation, and when the first



96 THE SOCIALIST PHILOSOPHY AND MOVEMENT

form of such exploitation has been introduced in the in-
stitution of slavery, it is only then that repressive laws and
organized social force become necessary.

The state thus appears in the social development of
mankind simultaneously with the institutions of private
property and slavery and as their necessary concomitant.
In its original form, it was frankly and without disguise
the organization of the slave-owning class for the purpose
of maintaining their authority over their slaves. The
slaves themselves, as stated in the preceding chapter,
were not members of the state, and there was no pretense
that the state was "the body of the whole people." "The
ancient state," says David G. Ritchie, "existed for the
citizen and not for the unenfranchised multitudes, who
were mere means to the state's existence and no part of
the state itself. The Greek state existed for the few;
the modern state professes to exist for all — and may do
so some day in reality." ^

With the gradual change of economic conditions and
social relations, the state has steadily modified its outward
garb, but its true functions and inner mechanism have
largely remained unchanged. The state has at all times
been the instrument of the possessing classes; its chief
function has always been to maintain the existing order, i.e.,
the supremacy of the ruling classes and the dependence of
the non-possessing classes, and even to-day it is the privi-
lege of the classes in power "to make laws and to levy
taxes," while it is the duty of the poor to obey the laws
and to pay the taxes.

The socialist definition of the state as an organization of
the ruling classes for the maintenance of the exploited
' "The Principle of State Interference," London, 1902, p. 101.



SOCIALISM AND THE STATE 97

classes in a condition of dependence, is thus entirely cor-
rect in substance.

But in connection with this definition another factor
must be considered. The ruling classes of every period
are created by the prevalent economic conditions of that
period and they change with the change in these conditions.
The slave-owning class was superseded in history by the
class of feudal landlords, and the latter by the modern
bourgeoisie, and with the accession of every new class of
rulers the character and constitution of the state assumed
a different aspect. These changes are rarely distinguish-
able by definite lines of demarcation. As a rule they take
place gradually and are accompanied by protracted and
obstinate struggles between the declining and rising classes,
and it is not always easy to determine which of the two
contending classes is the ruling class. In such periods of
transition the state reflects the indefinite character of the
social and economic conditions, and while in the main it
always serves the interests of the class temporarily in power,
it frequently makes important concessions to the rebellious
classes. Thus the state of the fourteenth century was a
feudal state, pure and simple, without any admixture of
foreign elements ; but the state of the seventeenth century,
while still feudal in its main characteristics, already pre-
sented many elements of bourgeois power. And similarly,
the state of a century and even half a century ago was an
unalloyed bourgeois state, while the present-day state
already shows deep inroads made in its substance and
functions by the rising class of wage workers.

Under the pressure of the socialist and labor movement
in all civilized countries, the state has acquired a new sig-
nificance as an instrument of social and economic reform.

H



98 THE SOCIALIST PHILOSOPHY AND MOVEMENT

Such reforms have already demonstrated the ability of
the state to curb the industrial autocracy of the ruling
classes and to protect the workers from excessive exploi-
tation by their employers.

The modern state, originally the tool in the hands of the
capitalist class for the exploitation of the workers, is grad-
ually coming to be recognized by the latter as a most
potent instrument for the modification and ultimate aboli-
tion of the capitalist class rule. In the general scheme
of socialism, the state has, therefore, the very important
mission of paving the way for the transition from present
conditions to socialism. The state in that role is gener-
ally styled in the literature of socialism the "period of
transition," or the "transitional state." Beyond it lies the
pure socialist order.

Does that order still admit of the existence of a state,
or must the state, as the product of class divisions in so-
ciety, fall with the disappearance of those class divisions
as asserted by Engels and his followers ?

At the first glance the proposition seems almost axio-
matic — with the removal of the cause, the effect must fail.
But on closer analysis the question seems by no means free
from doubt. A social institution may be called into life
by certain conditions and for certain purposes, but may



Online LibraryMorris HillquitSocialism in theory and practice → online text (page 7 of 26)