Law and Marxism the state and the constitution

Marxist Theory · 2026-05-13

Core Argument¶

The article argues that constitutional law is not a neutral framework protecting individual rights or limiting state power, but a specific legal form generated by and necessary for the capitalist mode of production. Constitutions serve to mystify the class character of the state while simultaneously embedding capitalist relations into the very structure of political authority. The central claim is that the form of constitutional law — its apparent independence, its guarantee of formal equality, its separation of powers — flows directly from the requirements of commodity exchange, and that this form is the "best possible political shell for capitalism" (Lenin). Marxists must therefore reject any illusion that constitutional safeguards can serve working-class interests, and instead recognise that the socialist revolution requires smashing the bourgeois state entirely, including its constitutional scaffolding.

Theoretical Grounding¶

The analysis draws on several foundational Marxist texts and concepts:

Engels' Origins of the Family, Private Property and the State provides the starting point: the state arose as a "power seemingly standing above society" to contain class antagonisms, and is fundamentally a weapon of the possessing class.
Lenin's State and Revolution supplies the key insight that the democratic republic is the "best possible political shell for capitalism" because it builds capitalist relations into the state's foundational rules.
Marx's Capital (Volume I) is deployed for its analysis of commodity exchange: commodities require legal owners, and the act of exchange demands that buyers and sellers confront each other as formally equal individuals stripped of all social particularity.
Marx's The Eighteenth Brumaire of Louis Bonaparte provides the historical thesis that all previous revolutions "perfected" the state machine rather than smashing it.
Marx and Engels' The Communist Manifesto situates the bourgeois state as "a committee for managing the common affairs of the whole bourgeoisie."

The article sits firmly within the classical Marxist tradition of state theory, rejecting both reformist illusions in bourgeois legality and anarchist dismissals of any transitional state form. It extends the commodity-form analysis of law — a tradition associated with Soviet jurist Evgeny Pashukanis — by tracing the constitutional form itself back to the requirements of commodity exchange, rather than treating constitutions as merely ideological superstructures.

Conjunctural Relevance¶

The article was published in February 2018, a moment of multiple constitutional crises across advanced capitalist states:

Britain: The Supreme Court's ruling that Parliament must authorise triggering Article 50 for Brexit exposed tensions between executive power and parliamentary sovereignty.
USA: Federal courts blocked Trump's Muslim travel ban, positioning the judiciary as a check on executive authoritarianism.
Spain: The Catalan independence referendum and subsequent constitutional crisis over secession.
Poland and Brazil: Conflicts over judicial independence and executive overreach.

The article argues that these crises are dangerous for the ruling class precisely because they threaten to dispel the "aura of mystery and power" surrounding the constitutional state. When the constitutional framework itself becomes a site of open struggle, the underlying class character of the state becomes more visible. The conjuncture thus presents both an opportunity for Marxist demystification and a warning: in moments of crisis, the ruling class may abandon constitutional forms entirely, resorting to technocratic governments (Italy and Greece post-2008), fascism, or war.

Where the Argument Continues¶

The article opens several lines of inquiry that are developed elsewhere in the IDOM corpus and broader Marxist tradition:

The nature of the transitional state: The article gestures toward the Paris Commune and early Soviet constitutions but does not fully develop what a workers' state would look like in practice. This is taken up in other IDOM articles on the dictatorship of the proletariat and the experience of the Russian Revolution.
The degeneration of the USSR: The 1936 Stalin Constitution is mentioned via Trotsky's The Revolution Betrayed, but the full analysis of bureaucratic degeneration and its relationship to constitutional form requires deeper treatment.
Fascism and constitutional breakdown: The article notes that fascism represents the ruling class abandoning constitutional forms, but does not explore the conditions under which this becomes necessary — a theme developed in IDOM articles on Bonapartism and the crisis of bourgeois democracy.
The "withering away" of the state: The final section on socialism is necessarily schematic; the concrete mechanisms by which the state dissolves into society are explored in Lenin's State and Revolution and in ongoing IDOM debates about transitional demands.

Connections¶

Evgeny Pashukanis, The General Theory of Law and Marxism: The commodity-form analysis of law is most systematically developed here. Pashukanis argues that the legal form itself — the subject of rights, the contract, the person — is a reflection of the commodity form.
Trotsky, The Revolution Betrayed: Essential for understanding the 1936 Soviet Constitution as a consolidation of bureaucratic counterrevolution.
Lenin, State and Revolution: The definitive Marxist text on the state, the dictatorship of the proletariat, and the withering away of the state.
Engels, Origins of the Family, Private Property and the State: The historical materialist account of the state's emergence.
Marx, The Eighteenth Brumaire of Louis Bonaparte: The classic analysis of how the bourgeois state machine is "perfected" through successive revolutions.
IDOM articles on Bonapartism and the crisis of bourgeois democracy: These develop the analysis of when and why the ruling class abandons constitutional forms.

Key Quotes¶

"Constitutional laws are a conquest of the bourgeois revolutions against the old feudal order, and they flow, in content and form, directly from a system based on commodity production. We have no illusions that constitutional safeguards can help the working class win its struggle against the bourgeoisie."
"The commodity, once produced, can only realise the value contained within it if it is exchanged on the market. But a commodity cannot exchange itself – it needs a conscious human to perform the act of exchange, or in other words it requires a legal owner. This means that the concept of legal rights of individual ownership is an inherent part of commodity production."
"A democratic republic is the best possible political shell for capitalism, and, therefore, once capital has gained possession of this very best shell… it establishes its power so securely, so firmly, that no change of persons, institutions or parties in the bourgeois-democratic republic can shake it." (Lenin, quoted approvingly)
"The power that guarantees security for those capitalists engaging in commodity exchange must be a public power, independent of any one particular capitalist, but nevertheless in the service of the capitalist class in general. This is the role of the bourgeois state and its function is to defend the system of commodity exchange."
"When those who wield state power are the vast majority of society they no longer have need of such deceptions to keep people ignorant of the real role of the state. Bourgeois lawyers are fond of saying that 'justice is blind'. But under the socialist constitution justice will have its eyes wide open, and will be looking to defend the interests of the working class."
"All law, including constitutional law, is a reflection of the real class forces at play in society. The difference between bourgeois law and the first constitution of the Soviet Union is that the former tries to cover up this fact, while the latter openly accepts it."