The Legal Deduction of the Proletarian State

img_0822I. Division On The Question Of The State

First off the idea for this post largely comes from a, believe it or not, somewhat civil and productive discussion about anarchism vs. Marxism. Particularly a member of the Commune for Distributing Agitprop (CDAP) asked me this question:

What exactly are the institutions you would use to characterize a proletarian state? What do they look like, and how are they operated?

I think this is such a crucial and oft-ignored question even by many socialists. Worse still, both some anarchists and socialists will respond with the non-answer that destroying the bourgeois state, abolishing private property, and facilitating direct participation by the proletariat will inherently create communism, that ideal state of cooperative equality and liberation. We are faced with “What is Step 1?” and answer with a description of Step 76.

To provide some context, my journey on the Left has taken me from Marxism to anarchism and back again to Marxism. I cannot provide many details because of the sensitive nature of the organizing, but I was very involved with international anarchist organizing, particularly with Occupy Wall Street and providing assistance to direct actions across the world.

In addition to the formal anarchist movements I participated in, I was and continue to be involved in movements that may not call themselves anarchist but essentially are in praxis or theory, particularly those who call themselves the new abolitionists and the new economy. There are anarchists whose actions or theories continue to inspire me, such as but not limited to Lucy Parsons and Lorenzo Kom’boa Ervin.

But in my dealings particularly with the prison system I recognized the sheer weight of state power and began to despair that a loose confederation of affinity groups, nihilists, and workers would ever be able to overthrow it. And most importantly, a friend of mine encouraged me to revisit the written works of Lenin and the historical experience of the Bolivarian Revolution. Lastly, the deeper I have gotten into legal work, the more I have recognized how much the state does and how simple elimination is not just unwise but impossible.

II. Dialectics Of The State

Human beings are inherently imperfect, limited, and most of all impressionable in a depreciating way: simply facilitating an immediate shift to our collective participation would result in the tyranny of structurelessness. For we already act collectively in many ways within capitalism, even forgoing the obvious example of collectively participating in the capitalist economy. Collectivity itself does not inherently create good. Direct collective participation without structure would reproduce the collective actions we are familiar with, such as a mass of people following a leader based on how safe they make us feel.

This is not absolute, especially if capitalism is replaced and the later generations are raised at their most impressionable state without capitalism. But of course that takes decades, and in order to reach that point we must have a proletarian state and we must carefully and deliberately define through debate and discussion what the properties of that state are.

So what are the properties? There are three sets: bourgeois institutions to be restructured (thesis); bourgeois institutions to be eliminated (antithesis); and new institutions to be created (synthesis). By the dialectical relationship of quantity to quality, as material difference decreases the need for state institutions will shift, with more bourgeois institutions eliminated over time and more proletarian institutions created.

Once all are eliminated, a new dialectic emerges between the proletarian institutions (thesis), their elimination (antithesis), and the ideal of communism (synthesis). This last dialectic is highly theoretical and I think best left to a brighter future. But nevertheless the motivating idea is that the state will wither away as a class-basis of society also withers (and that includes the hierarchies based on race, gender, disability, etc. in addition to ownership and wealth).

Daniel Lazare addresses the question from a different angle, spelling out why the United States liberal republican constitution created the current political climate and will invariably make it worse. He also sets forth his own conceptualization of how the United States could get to a proletarian state, in particular the idea of a constituent assembly:

A constituent assembly, in contrast, arises not out of the states but out of the people. Since it would represent the nation writ large, its members would vote as a whole rather than as part of individual state delegations. Taken to its logical conclusion, the concept implies that the people should vote as a whole as well, not for candidates in separate state or congressional-district contests, but from a single ballot in a single national election, with seats allocated according to each party or slate’s share of the total.

Once seated, the members’ remit would be unbounded. They could tinker with a few clauses here or there or throw the entire Constitution out and start from scratch. They could submit their recommendations to a referendum or decide that they had sufficient authority to institute them on their own. Instead of deriving their authority from Article V, they would impose it — on the amending process, on the Constitution, on society.

It is a great idea for implementing the transition to a proletarian state. But Lazare leaves out an incredibly important part of such changes: for while the Constitution is the “supreme law of the land,” it is the administrative rules, case law (which is now aggregated by the private duopoly of Lexis and Westlaw), judicial decisions, model codes, and restatements that provide the skeleton of the US legal system. These laws are currently written by lawyers, mostly those who unabashedly serve the interests of capital.

These perversions of constituent assemblies may be devious but they are also effective, like the Uniform Commercial Code which has had most of its articles adopted by all 50 states. And the governance they provide goes beyond what is required to maintain the current capitalist system. Marx recognized this and particularly argued in Capital (Vol. 2) that systems of governance and management would become more necessary with the overthrow of capitalism:

Book-keeping, as the control and ideal synthesis of the process [of production], becomes the more necessary the more the process assumes a social scale and loses its purely individual character. It is therefore more necessary in capitalist production than in the scattered production of handicraft and peasant economy, more necessary in collective production than in capitalist production.

At the end of the day, even if humanity finally triumphs over profit as the aim of all governance, there will still be differing definitions of what is best for humanity or even what humanity is. And even when a definition can be established for each separate thing, they will inevitably run up into one another. One of the greatest tasks of the state is resolving, or at least hiding, the many contradictions in its laws.

III. The State’s Provision Of Certainty

The current US legal system’s many contradictions are dealt with by many means (like severance clauses) but few are as important as the Restatement 2d of Conflict of Laws. Written by the American Law Institute and released in 1969, its predecessor took eleven years to write and the current second edition, which was twice as long, took seventeen years. Like the Article V problems described by Lazare, Conflict of Laws focuses on determining which states’ law governs an issue. That determination is made generally through seven factors:

(1) the needs of interstate and international systems;
(2) the relevant policies of the states at issue;
(3) the relevant policies of other interested states;
(4) the protection of justified expectation;
(5) the basic policies underlining the law at issue;
(6) the certainty, predictability, and uniformity of the result; and
(7) ease of determining and applying the law.

It should be clear that certainty is especially important; in legal systems certainty is in a dialectical relationship with authority. Authority is granted based on the certainty it can produce and the production of certainty reinforces the legitimacy of the authority. And certainty under the authorship of the bourgeoisie is the certainty of their triumph and the legitimizing of their authority.

However these seven factors alone, or even their interpretation, do not give the solutions. In the US legal system, factors are differentiated from elements – while elements are requirements (i.e. someone needs to be killed for there to be a murder), factors are important but not essential metrics. Some factors may be given more weight than others or weigh differently depending on the circumstances. Some may seem redundant in one scenario while tipping the scales in another.

Part of this flexibility is to resolve the contradiction between the liberal ideas of formal equality and class dominance – while these seven factors are used for both torts and property, it is for property that the fourth factor of justified expectation is given the most value. Justified expectation is crucial to the circuit of capital accumulation, whereas a person’s justified expectation that their boss will pay for their injury at work is not. While nowhere in the circular and sparse logic of the Official Comment to Restat 2d of Conflict of Laws, § 222, the profit motive’s presence becomes clear when reading the restatement in its totality.

But this flexibility is not merely for class dominance. Aside from criminal law, it exists broadly, especially in the commercial law governing relations between capitalist firms. In other words, legal flexibility also exists for competition. It is important here to distinguish between the Marxist idea of capitalist competition from the neoclassical idea of some perfect equilibrium. Anwar Shaikh has written extensively on this difference, and presents the Marxist idea as:

As the money-form of surplus value, profit in general is the source of rent, interest and profit-of-enterprise. In the midst of competitive battle, there is no guarantee to any given capital that it can or will earn any profit at all, let alone a ‘normal’ profit implied by the average rate of profit.

Neoclassical competition treats the state as disrupting the perfect equilibrium. Instead, the state especially through its laws is providing ideological weapons for an arms race. If the perfect equilibrium theory were true, our mostly facially neutral commercial laws would have little effect. To appropriate the lies of trickle down, a rising tide raises all boats. And if we ignore the free market preachers and turn instead to the institutional firms and their attorneys, it quickly becomes clear which of these theories is correct.

IV. Conflict Beyond Capitalism

But are there conflicts that would be present even upon the abolition of the ridiculous federalist framework and private property? Of course. An easy example of this is the nagging eternal question – when something bad happens, whose fault is it? That question is generally governed by duty and tort law as a whole, so let’s get more specific.

I am installing an A/C unit in the window of my apartment, and I get my friend Rafael to help me in exchange for me helping him move the next day. As I am trying to fix a screw into place, Rafael drops the A/C and it falls on Connor. Unfortunately for Connor, his spine is fractured and he has to spend months in the hospital and years in physical therapy to recover.

Assuming that private property has been abolished, the question of damages per se is no longer of consequence – healthcare is no longer for profit and Connor does not have to worry about going bankrupt over this accident. Nevertheless, he was planning on spending that time helping his intramural football team win the championship that year. He wants some accountability (and what form that takes is not of consequence in this analysis).

So who is accountable: Rafael, me, or both of us? If both of us are accountable, how is the burden of that accountability shared between us?

Some may argue that there should not be any law that makes that decision and that it should be decided collectively on a case-by-case basis. Obviously such a democratic and thorough process would be ideal, but it would also mean asking people to contribute lots of labor in investigation and mediation. Even in a more straightforward case (i.e. Rafael kept asking me to help him lift it and I kept telling him I would but did not), all you need is an absence of additional witnesses to make it one party’s word against another.

If you think people dislike jury duty, imagine how much they would dislike having to be attorney, judge, and jury all at once. And rather than one judge determining the standard based, at least somewhat, on material law, you would have how ever many people applying their own subjective standards. It really should surprise no one that the Left is so awful at dealing with accountability issues like sexual violence among its own ranks for this very reason.

Sure such conflicts will disappear in an ideal world where we all recognize with empathy our mutual human flaws and interdependence. But while the profit motive disrupts such recognition, the removal of it alone will not instantly make every person have an emotional and psychological metamorphosis. We can reject bourgeois or carceral ideas of accountability all we want, but if we do not replace them with alternatives that possess enough certainty to be guideposts through conflict, we will always end up in organizational collapse. And that certainty is simply not possible without the power to implement it.

V. Violence Violence

No right-minded socialist would ever deny that the state is and always will be an institution of violence. As a product of class conflict, the state’s main purpose is it to enforce the dominant social order by any means necessary. It possesses wide immunity for liability in its actions. While the capitalist firms may do more harm holistically, the most extreme incidents of violence are those done by states.

Sure capitalist firms participate, but at the end of the day it was the Nazi state that carried out the Holocaust and the Portuguese state that captured the West Africans kicking off the transatlantic slave trade and the US and South Korean states that massacred hundreds of thousands of dissidents within the latter country. And that is not even including all of the wars, the coups orchestrated by intelligence agencies, and the state’s monopoly on the power to incarcerate.

So it is somewhat understandable why anarchists have such an aversion to the very idea of the state. Sure this is generally buttressed by revisionist histories of the Soviet Union, China, and many other countries, but they are not wrong that states are violent entities. Even the most unabashed authoritarian Leftist (like yours truly) recognizes that Leftist states have sometimes killed innocent people or resorted to more extreme measures than they had to in dealing with dissent.

I was probably an anarchist for as long as I was because of my disdain for violence. But everyone on the far Left agrees that communities should be able to use any means necessary to defend themselves from the threats of reactionaries. What I am suggesting is that there should be a similar moral right to defend the revolutionary liberation of those communities. The history of liberation movements shows how intensely and persistently that revolution will be attacked. And it is no coincidence that it has been maintained best by those socialist states like Cuba that sufficiently empowered their government to take the action necessary.

The violence of the proletarian state is not only necessary to preserve the radical transformation of society but is far better than the alternatives. Preempting the debate of a hypothetical anarchist world, I would suggest that the overthrow of the bourgeois state in the current political conditions only has three outcomes: (1) its replacement by a different bourgeois state; (2) its replacement by a proletarian state; or (3) its degradation into a stateless zone. And when I say stateless zone I do not mean communism – these zones (like Somalia or contested territory in a war) are not free from capitalism or state violence but rather are deprived of sovereign self-determination.

As Lenin wrote on the example of Norway’s secession from Sweden, it does not matter that a nation’s self-determination may be bourgeois. Norway was an oppressed nation by Sweden (invaded and occupied, taxed, etc.), and that relinquishment of sovereignty served as a barrier to the recognition by its working class of their shared struggle with the working class of the oppressor nation.

Just as it would be ridiculous to tell Black Lives Matter activists that they should be focusing more on capitalism, it is ridiculous to tell the working class of an oppressed nation that their country’s sovereignty is inconsequential. And like the former example, this is a failing of intersectionality – while we of course want oppressed nations to adopt socialism, the fight against imperialism by itself is a fight against capitalism as well.

This makes the broad anarchist support for the Kurdish struggle very ironic. Without getting into the present day and whether the struggle has become an instrument of US imperialism, it is unquestionable that the Kurdish struggle has and continues to be about national self-determination. And at least at the beginning of the struggle (though largely absent today), this extended to respecting the sovereignty of other nations – the PKK for example asked and received permission to enter into Syria for its training to fight Turkey. It is a bizarre condition of US historical amnesia that anarchists (and even some Maoists) in this country now mock the very notion that US adventurists would ask permission before entering the state of Syria.

And this is not only the case of unrecognized states like Kurdistan and Palestine but of states with limited sovereignty. Can the anarchist really look the people of Senegal in the face and tell them that their currency being pegged to the euro is inconsequential? Can they look the people of Cuba in the face who have survived decades of blockade and tell them that their problem is the state?

Colonialism has persisted long past the formal independence of most of the Global South during the 1960’s and 1970’s. One of its forms has been colonial laws like the Napoleonic Codes in Egypt which persist in the form of Egypt’s criminalization of homosexuality. This humiliation places the question of the state in a different context. To abolish the very concept of the state now insinuates some formal equality of nations that could not be further from the truth. I would love to see a truly international socialist society, but I will not pretend that can be achieved without reparations for the horrors of colonialism.

So in summary, a proletarian state is necessary to instill a certainty to overcome conflicts domestically as well as to combat imperialism and make reparations for the oppression of nations wrought by colonialism. I know many will have disagreements with this analysis, and I welcome your critiques.

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