Jeremy Kessler, Columbia Law School, has posted The Problem of Authoritarianism in Marxist Legal Thought, which is forthcoming in the Oxford Handbook on Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:
The more that contemporary scholars of authoritarianism seek to distinguish between, on the one hand, competitive authoritarianism and authoritarian legality and, on the other, the liberal and democratic deficits of ostensibly liberal democratic regimes, the more they will be retracing the immensely creative if often tragic steps of Marxist legal thought. This chapter sets itself two tasks. First, to provide an overview of Marxist legal theorists’ relationship to authoritarianism, both in its liberal democratic and more avowedly illiberal, anti-democratic forms. Second, to make some sense of an intellectual tradition that began by criticizing authoritarianism, came to defend it, and then spent decades in the wilderness – if not the grave – trying to rectify its errors.
The chapter is organized in a chronological series of vignettes, each of which aims to capture a stage in the Marxist encounter with authoritarianism: Karl Marx and Friedrich Engels on bourgeois legality and the dictatorship of the proletariat; Vladimir Lenin and Rosa Luxemburg on the relationship between democracy and proletarian dictatorship; Evgeny Pashukanis and Pyotr Stuchka’s debate about the practical possibility and political tendency of “proletarian law”; Franz Neumann and Ernst Bloch’s reconsiderations of the relationship between socialism and natural law; and Nicos Poulantzas and the Neue Marx-Lektüre’s return to Luxemburg and Pashukanis as means of making sense of authoritarian tendencies on both sides of the Iron Curtain.
Taken as a whole, the chapter argues that Marxist legal thought was ahead of its time in emphasizing the authoritarian potential of liberal democratic institutions under conditions of capitalist hierarchy and atomization. Contemporary trends in the study of authoritarianism are rediscovering this basic Marxist insight. At the same time, when it came to confronting the authoritarian tendencies of anti-capitalist movements and regimes, Marxist legal thought oscillated between denial, denunciation of law and the state as such, and rediscovery of the virtues of capitalist and pre-capitalist legal and political forms. Whether that oscillation testifies to human society’s inability to transcend capitalism or its inability to transcend more fundamental facts about human nature is the question that continues to divide Marxist from liberal and conservative legal thought. However one answers that question, the problem of authoritarianism remains. Now more than ever, law appears capable of making that problem better or worse, depending on underlying social conditions. To that extent, at least, Marxist legal thought has often seen things more clearly than its liberal and conservative antagonists.
Other contributions to the volume include essays by my Georgetown Law colleague Mark Jia and by YLS's Taisu Zhang.
--Dan Ernst
