The Concept of Legal Relations in a Marxist Perspective

Solomko Zarianna PhD in Law Associate professor, Department of Theory of Law, State and Judicial Power, Russian Academy of Justice  117418, Russia, g. Moscow, ul. Novocheremushkinskaya, 69, of. 1005 solzary@gmail.com Other publications by this author

The significance of legal relations in legal existence today, perhaps, none of the mainstream theories of law dare to deny. In the post-Soviet period, proponents of various new approaches to the understanding of law said a lot that legal positivism, including its "Soviet" versions, paid insufficient attention to the analysis of real law and order, legal relations, and that this gap in theoretical and legal research should be filled, relying on a new methodology of non-positivist and postclassical sense.

At the same time, supporters of almost all new concepts that have emerged in the post-Soviet space, one way or another, declared the need for at least a critical revision of the historical and materialistic understanding of law, in which the role of the economy was allegedly overestimated and the role of other social factors influencing the formation of law and legal relations was underestimated, as well as the role of law itself was allegedly underestimated^{[1, pp. 113-249]}. Other adherents of the so-called new types of legal understanding even declared the Marxist approach absolutely discredited and worthy of oblivion. Anyway, today it can be stated that the Marxist understanding of legal relations, if present in some form in the mainstream domestic theory of law and branch legal sciences, then, as a rule, in the form of some miraculously preserved emasculated concepts, fragmentary ideas and quotations, and not really used tools for analyzing legal relations in scientific research, law-making and law enforcement practice.

For example, G. V. Maltsev, the author of one of the most famous and authoritative works on the social analysis of law in the post-Soviet general theory of law, in this study, without any explanation, bypasses the Marxist concept of legal relations, does not mention it at all^[2]. G. A. Hajiyev, who began the article on the contract with a retelling of Marxist the essence of the ideas that existed in Soviet jurisprudence, and from quoting Marx, then followed the path of an eclectic compilation of the most diverse theses on their methodological grounds. Reproaching the supporters of the "tradition of Marxist-Leninist determinism of law" for allegedly "trying to explain any changes in contract law solely by economic factors"^{[3, p. 13]}, G. A. Hajiyev tried to prove that "the foundations of contract law are derived from the metaphysics of Aristotle, the ethical concepts of Thomas Aquinas and in an almost unchanged created by representatives of the Spanish and Northern schools of natural law"^{[3, p. 5]}.

Has it been possible to make a breakthrough in understanding legal relations in three decades on the platforms of new theories of law? I suppose not. If we analyze the situation in a purely ideological field, then the problems of legal relations have been quite marginal in the general theory of law all this time, and numerous arguments about the "communicative", "integrative" nature of law have been and remain very abstract: both newly discovered "legal communications" and legal relations in their traditional positivist understanding hover in a certain the nebulous substance of "widely understood law" and the no less nebulous and undifferentiated substance of society. If we judge by the results of law-making and law-realization practice, by the sphere of real legal relations, which the general theory of law potentially had the opportunity to influence, then there are also no qualitative breakthroughs in this area, but there are a lot of different kinds of unjustified expectations and hopes: not only leftists or adherents of the so-called "real socialism"^[4].

The problem, which, as it seems to me, the post-Soviet mainstream theories of law cannot cope with, at first glance is rather banal: there is an array of positive legal constructions of legal relations (models of legal relations fixed by legislative acts of different levels), and there is an array of real legal relations and, let's say, eluding legal mediation, although objectively – from the point of view of the interests of the progressive development of society, there are social relations in need of it, and an impressive gap or sometimes an abyss persists between them, and often noticeably widens. This plot with the discrepancy between "legal relations in books" and real social relations is not new in itself – it is somehow reproduced in any national legal system and at the level of international law and order, however, it is difficult to deny that the problem is much more acute in the post-Soviet law and order than in the countries of the modern West. Both in modern Russia and in many other states that emerged after the collapse of the USSR, fairly large segments of the rule of law have formed, where this "gap" has either become the norm at all, or is reproduced with enviable frequency and regularity – as a kind of stable pattern that needs a theoretical and legal explanation.

And the mainstream theory of law either simply ignores this problem, as traditional positivism often does, or, in fact, stops in front of it in confusion, offering once again to try those methods that have repeatedly revealed their worthlessness or insufficiency in history. Such proposals include traditional incantations that it is necessary to raise the level of legislative technique, law-making culture, the quality of law enforcement and the level of legal consciousness of society as a whole. It can be noted that such proposals, as a rule, are based on some abstract-idealistic methodology – regardless of whether it is realized by the jurists themselves. This is manifested in the fact that both the root and the solution of the problem are sought, abstracting from social matter, in the sphere of the so–called "superstructure", in particular in the field of politics, morality, political, legal and moral consciousness.

And the cart, as they say, is still there. Here is what A. A. Ivanov, one of the most authoritative Russian civilists, who knows firsthand Russian civil law as it exists in positive legal structures and in real relations, writes: "It can hardly be denied that our civil turnover is quite primitive compared to the level of civil legislation. The Civil Code, and, perhaps, other laws in the field of civil law have a more or less decent level even by European standards, especially if they are compared with numerous public legal acts that do not form a coherent system. The practice of applying civil legislation is fundamentally different. Many, mostly complex, institutions of civil law are not in demand. If they are used, then their essence is often distorted, and they serve different purposes than in developed legal systems"^{[5, p. 58]}.

I believe that the riddle of the divergence of modern positive-legal constructions of legal relations and real law and order cannot be solved without the tools of analysis that were proposed by Marxism and which the post-Soviet theory practically abandoned under ideological pressure. Proponents of Western critical legal theory in the second half of the 20th century came to understand that there can be no credible legal theory without a credible social theory, thereby rediscovering dialectics.  Consequently, there can be no credible theory of legal relations without a credible theory of social relations. Whether the representatives of the post-Soviet mainstream legal understanding want it or not, sooner or later they will have to take seriously the fact that the greatest interest among Western jurists who turn to the problem of analyzing legal relations in their relationship with public relations, and in the second half of the XX century, and already in the XXI century, is not Soviet positivism, and not what- either from post-Soviet concepts, and the early Soviet theory of law – first of all in the person of Yevgeny Pashukanis, whom Western theorists value for his experience in reconstructing authentic Marxist legal understanding.

What ideas from the methodological tools of Marxist theory should be restored in rights so that the problem of understanding legal relations breaks out of that vicious positivist-neo-Kantian circle within which legal relations are understood as derived from the norm of positive law or thinking gets bogged down in a helpless dichotomy of due and existing? Without pretending to be an exhaustive analysis, I will try to identify some reference points of this approach.

 According to authentic Marxism, all existing social relations are divided into two main types – material relations and ideological or volitional relations. Material relations, which are based on property relations in the economic sense, do not depend on the consciousness and will of people, form the basis of society and ultimately determine ideological relations. Ideological or volitional relations, on the contrary, are formed by passing through the consciousness and will of people. Legal relations also belong to this kind of relations^{[6, pp. 94-95; 7, pp. 26; 8, pp. 136-137, 149; 9, pp. 172, 241-243]}.

At the same time, legal relations are conceived in Marxism not as an independent type of social relations, but as a form in which economic and other social relations are clothed. As a form, they are determined by their content and can reflect this content both more or less adequately and perversely – up to the point that they can be a transformed form^[10]. Material relations that differ in their essence – slaveholding, feudal, bourgeois – predetermine different types of legal relations and legal consciousness: "... the structure of material relations determines each time both the ideological construction of the legal form and the nature of the criterion of "justice", according to which the legal form of property inequality and class exploitation is thought to be constructed. In a commodity-capitalist society, the commodity form is common: all individuals are considered “from the same point of view” only as equal and free commodity owners who alienate private property belonging to them on the basis of equivalence. Hence “equal right", “equality", equivalence as a general measure of legal “justice". The feudal form of production, where material relations are merged with the relations of domination and subordination, creates a different legal criterion – preferential right, privilege: members of society are viewed unilaterally, from one point of view, as having privileges to some extent depending on the hierarchical level occupied and sacrificing their advantages in relation to each other"^{[11, pp. 58-59]}.

The rule of law as a system of legal relations is not created by the norms of positive law, which itself is only one of the possible forms of expression of law – it is formed by passing through the dominant class will, which in turn is conditioned by the dominant material (production) relations, the dominant mode of production. In this sense, the positive law created by the efforts of the legislator can be considered as an abstract form of expression of law (along with legal ideology), and the legal relationship as a concrete form of its being ^{[12, pp. 185-186, 189, 215]}.

It is the existing legal order as a real system of relations, which is supported and ensured by the power of the state, that allows us to judge the essence and content of the law in force in a particular state with a much greater degree of accuracy than the system of positive legal prescriptions in itself. "The legal relationship," wrote E. Pashukanis, "is the primary cell of the legal fabric, and only in it does the law make its real movement. Law as a set of norms along with this is nothing more than a lifeless abstraction"^{[13, p. 45]}. Further, the theorist explains his thought: "If no debtor returned the debt, then the corresponding rule would have to be recognized as not really existing, and if we wanted to assert its existence, we would have to fetishize this norm in one way or another. (...) The norm as such, i.e. the logical content, is either directly deduced from the already existing relations, or, if it is issued as a state law, is only a symptom by which it is possible to judge with some degree of probability about the occurrence of the corresponding relations in the near future. But in order to assert the objective existence of law, it is not enough for us to know its normative content, but we need to know whether this normative content is implemented in life, i.e. in social relations"^{[13, pp. 46-47]}.

What of the Marxist understanding of legal relations, using the terminology of I. Lakatos, is included in the "core", and what is in the "protective belt" of the Marxist research program is a subject for separate discussion, which in the Western theory of law, for example, has not faded for several decades in connection with the analysis of the concept of E. Pashukanis^{[14, 15, 16, 17]}. I believe, however, that the Marxist approach has remained valid in the world legal theory for such a long time, since it, like no other, allows us to think about legal relations, the rule of law and law from the standpoint of the most concrete and total integrity and allows us, based on social analysis, to explain and predict the development of the rule of law ^[14,15], and not just its ideologically justify or lament its imperfection.

The mainstream theory of legal relations, reflected in most textbooks on the theory of law, often repeats by inertia the theses that legal relations are volitional relations and that legal relations are a form of other social relations, but this statement is usually the end of the matter. When it objectively becomes necessary to apply the provisions on the volitional nature of legal relations and that they are a form of other social relations for a specific analysis of legal relations and for their construction by the legislator, then at this moment it is discovered that in reality these provisions are either not taken into account at all, or are not taken into account in to the extent that they should be accepted. The questions about the concrete historical essence and specificity of those social relations, primarily material ones, which at this historical stage are clothed in the form of legal relations and determine the nature of legal relations, the will of which social groups and classes dominates in those volitional social relations that take the form of legal ones, are not raised and are not properly investigated.

The author of this text has not yet managed to find any work of the post-Soviet period in Russian, specifically devoted to the theoretical and legal analysis of legal relations, in which the problem of analyzing modern legal relations was at least formulated in this way.  In this respect, the post-Soviet theory, in my opinion, has degraded not only in comparison with authentic Marxism, but also in comparison with the ideologized late Soviet jurisprudence, which, within the limits of what was permissible, operated with such concepts as the mode of production, the dominant forms of ownership of the means of production, classes, material and volitional social relations. Two decades ago, P. Island wrote that the concept of capitalism had mysteriously disappeared from the works of modern representatives of the school of critical legal studies^[18]. In the same "mysterious" way, the attitude to a concrete historical-materialistic analysis of the legal relations of modern capitalist society disappeared from the post-Soviet theory of legal relations (see, for example, the recent monographs by P. P. Serkov devoted to the problems of legal relations ^{[19, 20]}, and their rather wide discussion in the legal literature).

Not least because of the lack of a concrete analysis of the essence of the prevailing material and volitional relations, the legal structure of the legal relationship - whether proposed by legal scholars or approved by the legislator – now and then conflicts with the real social relationship that the legal relationship should mediate, and with those other social relations in the system of which the public, mediated by law, is directly included attitude. The legislator often presumptuously expects that the content will somehow adapt to its form, that a legal caftan sewn without carefully taken measurements and without understanding who, where and when will wear it will fit, will not come apart at the seams and will be appropriate. Three decades ago, many enthusiasts of constitutional and legal reform, civil law reform and other branches of legislation sincerely believed that in order to build the legal basis of a "democratic rule of law state" it was enough to receive the most progressive institutions of Western law. When supporters of the Marxism they reject tried to say that the logic of events and decisions taken by the authorities does not lead the country in the direction of Western-style capitalism, these warnings were completely ignored.

Another example: the Russian legislator, with enviable persistence, has been maintaining for several decades such an order of migration registration of foreign citizens, in particular their registration at the place of residence, which makes millions of foreign citizens offenders, since it is obviously unrealizable for them. The same can be said about the current mechanism for regulating labor relations with the participation of foreign labor, thanks to which millions of migrants are forced into the gray zone of "semi-legality" or become forced offenders ^[21], and the state collects less taxes. In part, this state of affairs is explained by the direct interest of the beneficiaries, but the lack of an adequate understanding of the specifics of relations in this area also plays a role, since the legislator still makes clumsy attempts from time to time to somehow "optimize" the situation.

A researcher of the rule of law from among the representatives of the mainstream legal understanding, having discovered that the caftan – the positive-legal construction of legal relations – is most often gathering dust in the closet or is constantly coming apart at the seams, as a rule, will not bother with a concrete analysis of the content that rejects the proposed positive-legal form, because, among other difficulties, such analysis must inevitably lead beyond the red flags outlined by ideological censorship. If in the late Soviet period, legal theorists did not raise the question of why positive legal declarations about the existence of a developed socialist society did not find a true prototype, then three decades after the disappearance of the "Soviet" system, most legal theorists prefer to bypass the problem of the unrealizability of a number of key provisions of the Constitution or the problem of a failed legal state, declared by the same Constitution.

Spontaneous experiments on the abstract construction of legal relations in history took place regularly on different scales. One of the impressive examples of this kind is found in our recent past, when, after the collapse of the USSR, the country became part of a global class society on the rights of a state of dependent peripheral capitalism ^{[9, pp. 273-275]}, and the positive legal form (legislation, or, using the terminology of P. Stuchka, an abstract form of law) by virtue of the same the ideological logic of the functioning of the legal field was largely copied from the orthocapitalist models.

Material relations, the mode of production and the volitional social relations caused by them under orthocapitalism (classical Western-style capitalism) and under paracapitalism have significant differences. In particular, under dependent peripheral capitalism, elements of other – non–capitalist - modes of production remain, for the effective mediation of which the orthocapitalist legal form is not suitable. Since this circumstance was not taken into account when borrowing many established forms of Western private and public law, there was a natural alienation of elements of a developed orthocapitalist legal form from a paracapitalist content that did not correspond to it, and many really existing paracapitalist relations remained without a working positive legal mediation (they are often regulated by other forms of law that may not formally be recognized by the state power and positivist jurisprudence, including legal precedents). This is the reason that A. Ivanov calls the "primitivization" of civil law in real social relations. Or, turning to the sphere of constitutional law, we can say that this is the reason that post-Soviet neo-Kantian theorists have been dreaming of a Western-style "rule of law" for three decades and lamented that the progressive norms of the "basic law" copied from Western models do not work or do not work as in the West, but a certain "The world spirit" eventually presented amendments to the Constitution, which do not really fit into the traditional picture of classical bourgeois constitutionalism.

To understand why in modern Russia there is that gap between the positive legal models of legal relations and the actual rule of law, why there is a "gray zone" of volitional relations that, from the point of view of the law, should fall under legal regulation, but actually turn out to be outside its framework, it is necessary to engage primarily in a detailed analysis of the specifics of the material and volitional relations of the dependent peripheral capitalism, the study of their content, their differences from the orthocapitalist relations. With this approach, in the process of analyzing existing legal relations, it is necessary to raise and resolve questions about the dominant forms of ownership of the means of production, the mechanisms of exploitation and class domination caused by them, since all this inevitably affects the nature of existing legal relations.

For example, it is important to take into account that in societies with a dependent paracapitalist economy, as already mentioned above, the capitalist mode of production exists in symbiosis with elements of other modes of production and that therefore there are areas of relations where the exploitation of labor is largely based on non–economic coercion to work, because it follows that positively-the legal constructions of the orthocapitalist labor and civil law, designed exclusively for economic coercion to work, will not work effectively in such societies. It is also necessary to take into account that significant adjustments to the implementation of classical orthocapitalist models of legal relations, enshrined in positive law, will be made by a special disposition of class forces in dependent peripheral capitalist societies, characterized by a specific role of the bureaucrat-bourgeoisie class, which in many respects opposes the classical bourgeoisie of the Western type and, unlike the latter, is not interested in maintaining the regime "the board of law"^[22].

In addition to the actual Russian realities, the researcher is extremely interested in this respect in the rule of law and the social system of those states of the former "third world", in which the relations of dependent peripheral capitalism were formed much earlier, first of all in Latin America and a number of Asian and African states, as well as the rule of law and the social system of China, where the mode of production is also peripheral capitalist, but characterized by much less dependence on the Western orthocapitalist economy.

If the experience of a number of Latin American, Asian and African states, first of all, allows us to comprehend the systemic "gap" between "legal relationship in law" and "legal relationship in life", or, in other words, the absence of the very regime "the rule of law", as the norm of a dependent peripheral capitalist society ^{[23, 24]}, then the experience of modern China and, in my opinion, to an even greater extent, the experience of the early Soviet state, which in 1917 was able to break the bonds of dependent peripheral capitalism, can be useful from the point of view of the prospects for the reception of such positive legal models of legal relations that favor the development of an independent national economy and the deconstruction of a global class society.  I think this task is much more significant for science than various kinds of "non-classical" and "post-classical" neo-Kantian experiments that the post-Soviet theory of law is so keen on.