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VIII.

The road traversed thus far has enabled us to take exact account of the precise and relative value of the so-called doctrine of factors; we know also how its adherents come to eliminate objectively those provisional concepts, which were and are a simple expression of a thought not fully arrived at maturity.

And, nevertheless, it is necessary that we speak further of this doctrine, in order to explain better

and more in detail for what reasons two of the so-called factors, the state and the law, have been and are still considered as the principal and exclusive subject of history.

Historians have indeed for centuries placed in these forms of social life the essence of development. Moreover, they have perceived this development only in the modification of these forms. History has for centuries been treated as a discipline relative to the juridico-political movement and even to the political movement principally. The substitution of society for politics is a recent thing, and much more recent still is the reduction of society to the elements of historical materialism. In other words, sociology is of quite recent invention, and the reader, I hope, will have understood for himself that I employ this term for the sake of brevity, to indicate in a general manner the science of social functions and variations, and that I do not hold to the specific sense given it by the Positivists.

It is more satisfactory to say that, up to the beginning of this century, the data bearing upon usages, customs, beliefs, etc., or even upon the natural conditions, which serve as the foundation and connection for social forms, were not mentioned in political histories unless as objects of simple curiosity, or as accessories and complements of the narration.

All this cannot be a simple accident, and indeed is not. There is, then, a double interest in taking account of the tardy appearance of social history, both

because our doctrine justifies yet again by this means its reason for existence, and because we thus eliminate, in a definite manner, the so-called factors.

If we make an exception of certain critical moments in which social classes, by an extreme incapacity for adapting themselves to a condition of relative equilibrium, enter into a crisis of more or less prolonged anarchy, and if we make an exception of those catastrophes in which an entire world disappears, as at the fall of the Roman Empire of the West, or at the dissolution of the Califate, then it may be said that, ever since there has been a written history, the state appears not only as the creation of society but also as its support. The first step that child-like thought had made in this order of considerations is in this statement: That which governs is also that which creates.

If, moreover, we make an exception of certain short periods of democracy exercised with the vivid consciousness of popular sovereignty, as was the case in a few Greek cities, especially at Athens, and in a few Italian cities, and especially Florence (the former nevertheless were composed of free men were proprietors of slaves, and the latter of privileged citizens who exploited foreigners and peasants) the society organized into a state was always composed of a majority at the mercy of the minority. And thus the majority of men has appeared in history as a mass sustained, governed, guided, exploited and ill treated, or at least as a variegated conglomeration of interests, which a few had to govern, maintaining

in equilibrium the divergences, either by pressure or by compensation.

Thence the necessity of an art of government, and as it is this before all else which strikes those who are studying collective life, it was natural that politics should appear as the author of the social order and as the sign of the continuity in the succession of historic forms. To say politics is to say activity, which, up to a certain point, is exercised in a desired direction, until the moment at least when calculations dash themselves against unknown or unexpected obstacles. By taking the state as an imperfect experience would suggest for the author of society, and politics for the author of the social order, it resulted that the narrators or philosophical historians were driven to place the essence of history in a succession of forms, institutions and political ideas.

Whence the state drew its origin, where the basis of its performance was found, that mattered not, as that matters not in current reasoning. The problems of the genetic order arose, as is known, rather late. The state is and it finds its reason for existence in its present necessity; that is so true that the imagination has not been able to adapt itself to the idea that it has not always existed, and so it has prolonged its conjectural existence back to the first origins of the human race. The gods or demigods and heroes were its founders, in mythology at least, just as in mediaeval theology the Pope is the first and therefore the divine and perpetual source of all authority. Even in our time, inexperienced travelers and imbecile missionaries find the state where there is, as among

savages and barbarians, nothing but the gens, or the tribe of gentes, or the alliance of gentes.

Two things were necessary that these prejudices of the judgment should be overcome. In the first place, it was necessary to recognize that the functions of the state arise, increase, diminish, alter and follow each other with the variations of certain social conditions. In the second place, it was necessary to arrive at a comprehension of the fact that the state exists and maintains itself in that it is organized for the defense of certain definite interests, of one part of society against all the rest of society itself, which must be made in such a way, in its entirety, that the resistance of the subjects, of the ill-treated and the exploited, either is lost in multiple frictions, or is tempered by the partial advantages, wretched though they be, to the oppressed themselves. Politics, that art so miraculous and so admired, thus brings us back to a very simple formula; to apply a force or a system of forces to the total of resistances.

The first step, and the most difficult, is taken when the state has been reduced to the social conditions whence it draws its origin. But these social conditions themselves have been subsequently defined by the theory of classes, the genesis of which is in the manner of the different occupations, granted the distribution of labor, that is to say, granted the relations which co-ordinate and bind men together in a definite form of production.

Thenceforth the concept of the state has ceased to represent the direct cause of the historic movement as the presumed author of society, because it

has been seen that in each of its forms and its variations there is nothing else than the positive and forced organization of a definite class rule, or of a definite compact between different classes. And then by an ulterior consequence from these premises, it is finally to be recognized that politics, as the art of acting in a desired direction, is a comparatively small part of the general movement of history, and that it is but a feeble part of the formation and the development of the state itself, in which many things, that is to say, many relations, arise and develop by necessary compact, by a tacit consent, or by violence endured and tolerated. The reign of the unconscious, if by that we mean what is not decreed by free choice and forethought, but what is determined and accomplished by a succession of habits, customs, compacts, etc., has become very considerable in the domain of the data which form the object of the historic sciences; and politics, which has been taken as an explanation, has itself become something to explain.

We know now in a positive way the reasons in consequence of which history had necessarily to appear under a purely political form.

But this does not mean that we ought to believe that the state is a simple excrescence, a mere accessory of the social body, or of free association, as so many Utopians and so many ultra-liberal thinkers of anarchist tendencies have imagined. If society has thus far culminated in the state, it is because it has had need of this complement of force and authority,

because it is at first composed of units which are unequal by reason of economic differentiations. The state is something very real, a system of forces which maintain equilibrium and impose it through violence and repression. And to exist as a system of forces it has been compelled to develop and to establish an economic power, whether this latter rests upon robbery, the result of war, or whether it consists in direct property in the domain, or whether it is constituted little by little, thanks to the modern method of public taxes, which takes on the constitutional appearance of a self-imposed system of taxation. It is in this economic power, so considerable in modern times, that its capacity for acting is founded. It results, that by reason of a new division of labor, the functions of state give rise to special orders and conditions, that is to say, to very particular classes, without including the class of parasites.

The state, which is and which must be an economic power that in its defense of the ruling classes it may be furnished with means to repress, to govern, to administer and to make war, creates in a direct or an indirect manner an aggregation of new and particular interests, which necessarily react upon society. Thus the state, by the fact that it has arisen and that it maintains itself as a guaranty of the social antitheses, which are a consequence of economic differentiations, creates around itself a circle of persons interested directly in its existence.

Two consequences follow therefrom. As society is not a homogeneous whole, but a body of specialized

articulations, or, rather, a multiform complexus of objects and interests, it happens that sometimes the directors of the state seek to isolate themselves, and by this isolation they oppose themselves to the whole of society, and then, in the second place, it happens that organs and functions, created first for the advantage of all, end by no longer serving any interest but those of groups, and permit abuses of power on the part of coteries and camorras. Thence arise aristocracies and hierarchies born from the use of the public power, thence arise dynasties; in the light of simple logic these formations appear wholly irrational.

From the first beginnings of written history the state has increased or diminished its powers, but it has never disappeared, because ever since there have been, in the society of men unequal in consequence of economic differentiation, reasons for maintaining, and for defending, through force or conquest, slavery, monopolies, or the predominance of one form of production, with the domination of man over man. The state has become, as it were, the field of an endless civil war, which is developing always, even if it does not always show itself under the startling form of Marius and Sylla, days of June and wars of Secession. Within the state, the corruption of man by man has always flourished, because, if there is no form of domination which does not meet resistance, there are no forms of resistance which, in consequence of the pressing needs of life, may not degenerate into a passive compact.

For these reasons, historic events, seen on the surface of the ordinary monotonous narrative, appear like the repetition of the same type, with few variations, like a series of kaleidoscopic pictures. We need not be astonished if the idealistic Herbart and the caustic or pessimistic Schopenhauer arrived at this conclusion, that there is no history, in the sense of any actual processus, which is to say in common language history is a tiresome song.

When political history is once reduced to its quintessence, the state remains illuminated in all its prose. Thenceforth there is no more trace either of theological divination, nor of metaphysical transubstantiation, so much in vogue among certain German philosophers — for whom the state is the Idea, the State Idea which is realized in history, the state is the full realization of the personality, and other stupidities of the same sort. The state is a real organization of defense to guarantee and perpetuate a mode of association, the foundation of which is a form of economic production, or a compact and a transaction between forms. To sum up, the state assumes either a system of property, or a compact between several systems of property. There is the foundation of all its art, the exercise of which demands that the state itself became an economic power, and that it also dispose of means and processes to make property pass from the hands of some into the hands of others. When, by the effect of an acute and violent change of the forms of production, it is necessary to resort to an unusual and extraordinary readjustment

of the relations of property (for example, the abolition of mortmain and fiefs, the abolition of commercial monopolies), then the old political form is insufficient and revolution is necessary to create a new organ which may operate the new economic transformation.

If we make an exception of the very ancient times which are unknown to us, all history is developed in the contacts and the antagonisms of the different tribes and communities, and thereafter of the different nations and different states; that is to say, that the reasons for the internal antitheses in the circle of each society are always more and more complicated with frictions with the outside world. These two reasons for antagonism condition each other reciprocally, but in ways which are always varying. Often it is internal disturbance which urges a community or a city to enter into external collisions; at other times it is these collisions which alter the internal relations.

The principal motive for the different relations between the different communities has been from the beginnings, even as it is to-day, commerce in the broad sense of the word, that is to say, exchange, whether it is a matter of giving up, as in the poor tribes, merely the surplus in exchange for other things, or whether it is a matter, as to-day, of production on a large scale, which is carried on with the exclusive intention of selling so as to draw from a sum of money a larger sum of money. This enormous

mass of events exterior and interior, which accumulate and pile upon each other in history, is such a trouble to the historians who content themselves with exploring it and summarizing it, that they become lost in the infinite attempts at chronological groups and bird's-eye views. Whoever, on the contrary, knows the internal development of the different social types in their economic structure, and who considers political events as the particular results of the forces acting in society, ends by triumphing over the confusion born out of the multiplicity and the uncertainty of first impressions, and instead of a chronological or synchronous series, or a view of the whole, he can arrive at the concrete series of a real processus.

In the presence of these realistic conditions all the ideologies founded on the ethical mission of the state or on any such conception, fall to the ground. The state is, so to speak, fitted into its place, and it remains encased, as it were, in the surroundings of the social development, in its capacity of a form resulting from other conditions, and in its turn, by reason of its existence, reacting naturally upon the rest.

Here arises another question.

Will this form ever be outgrown? — or can there be a society without a state? — or can there be a society without classes? — and if we must be more explicit, will there ever be a form of communist production with a distribution of labor and of tasks such that there will be no room in it for the development of

inequalities, that source of domination of man over man?

It is in the affirmative answer to this question that scientific socialism consists, in so far as it affirms the coming of communistic production, not as a postulate, nor as the aim of a free volition, but as the result of the processus immanent in history.

As is well known, the premise of this prevision is in the actual conditions of present capitalist production. This, socializing continually the mode of production, has subjected living labor more and more with its regulations to the objective conditions of the technical process, it has day after day concentrated the property in the means of production more and ever more into the hands of a few, who as stockholders, or speculators, are always found to be more and more removed from immediate labor, the direction of which passes over to intelligence and science. With the increased consciousness of this situation among the proletarians, whose instruction in solidarity comes from the actual conditions of their employment, and with the decrease of the capacity of the holders of capital to preserve the private direction of productive labor, a moment will come, when in one fashion or another, with the elimination in every form of private rent, interest, profit, the production will pass over to the collectivist association, that is to say, will become communistic. Thus will disappear all inequalities, except those of sex, age, temperament and capacity, that is to say, all those inequalities will cease which engender economic

classes, or which are engendered by them, and the disappearance of classes will put an end to the possibility of the state, as domination of man over man. The technical and pedagogical government of intelligence will form the only organization of society.

In this fashion, scientific socialism, in an ideal fashion at least, has triumphed over the state; and its triumph has given it a complete knowledge both of its mode of origin and the reasons for its natural disappearance. It has understood it precisely because it does not rise up against it in a one-sided and subjective fashion, as did more than once, at different epochs, the cynics, the stoics, the epicureans of all sorts, the religious sectaries, the visionary monks, the utopians and finally, in our days, the anarchists of every stripe. Still more, instead of rising up against it, scientific socialism is proposing to show how the state continually rises up of itself against itself, by creating in the means with which it cannot dispense, as, for example, a colossal system of taxation, militarism, universal suffrage, the development of education, etc., the conditions of its own ruin. The society which has produced it will reabsorb it; that is to say, that just as society in organizing a new form of production will eliminate the antagonisms between capital and labor, so, with the disappearance of proletarians and the conditions which render proletarians possible, will disappear all dependence of men upon his fellow man in any form of hierarchy, whatever it may be.

The terms in which the genesis and the development

of the state evolve, from its initial point of appearance in a particular community, where economic differentiation is beginning, up to the moment where this disappearance begins to foreshadow itself, make it henceforth intelligible to us.

The State has been reduced till it is but a necessary complement of certain definite economic forms, and thus the theory which would have seen in it an independent factor in history is thenceforth forever eliminated.

It is henceforth relatively easy to take account of the fashion in which law has been raised up to the rank of a decisive factor of society, and thus of history, directly or indirectly.

Before all else, we must remember in what fashion arose this philosophic conception of justice generalized, which is the principal foundation of the theory which maintains that history is dominated by the progress of independent legislation.

With the precocious dissolution of the feudal society in certain parts of Central and Northern Italy, and with the birth of the Communes, which were republics of production grouped in trade guilds and merchant guilds, the Roman law was forced into a place of honor. This law flowered anew in the Universities. It entered into a struggle with the barbaric laws and also in part with the canon law; it was then evidently a form of thought

which answered better to the needs of the bourgeoisie, which was beginning to develop.

In fact, considering the peculiarities of rival laws, which were either customs of barbarous nations, or corporation privileges, or papal or imperial concessions, this law appeared as the universality of written reason. Had it not arrived at the point of regarding human personality in its most abstract and human relations, since a certain Titius is capable of becoming debtor and creditor, of selling and buying, of making a cession, a donation, etc.? Roman law, although elaborated in its last editing at the command of emperors by servile parasites, appeared then, amid the decline of mediaeval institutions, as a revolutionary force, and as such it constituted a great step of progress. This law, so universal that it gave the means of overthrowing barbaric laws, was certainly a law which corresponded to human nature considered under its generic relations; and by its opposition to private laws and privileges it appeared as a natural law.

We know, moreover, how this ideology of natural law arose. It acquired its greatest distinction in the seventeenth and eighteenth centuries; but it had long been prepared for by the jurisprudence which took for its base the Roman law, whether it adopted it, revised it, or corrected it. To the formation of the ideology of natural law another element contributed, the Greek philosophy of later epochs. The Greeks, who were the inventors of those definite arts of the mind which are sciences,

never, as is known, drew from their multiple local laws a discipline corresponding to that which we call the science of law. On the contrary, by the rapid progress of abstract research in the circle of their democracies, they arrived very soon at a logical, rhetorical and pedagogical discussion on the nature of justice, the state, the law, penalty; and in their philosophy we may trace the rudimentary forms of all later discussions. But it is not until later, that is to say, in the Hellenistic epoch, when the limits of Greek life were sufficiently enlarged to be mingled with those of the civilized world, that, in the cosmopolitan environment which carried with it the need of searching in each man for the generic man, the rationalism of justice arose — of justice or of natural right in the form given it by the stoic philosophy. The Greek rationalism which had already furnished a certain formal element to the logical codification of Roman law reappeared in the eighteenth century in the doctrine of natural right.

That ideology, whose criticism has served as an arm and an instrument for giving a juridical form to the economic organization of modern society, has had, consequently, various sources. Yet, in fact, this juridical ideology reflects, in the struggle for law and against law, the revolutionary period of the bourgeois spirit. And, although it takes its doctrinal point of departure in a return to the traditions of the ancient philosophy, in the generalization of Roman jurisprudence, in everything else, and in all its development, it is completely new and modern.

Roman law, although it was generalized by scholasticism and by modern elaboration, still remains within itself a collection of special cases which have not been deduced according to a preconceived system, nor preordained by the systematic mind of the legislator. On the other hand, the rationalism of the stoics, their contemporaries and their disciples, was a work of pure contemplation, and it produced no revolutionary movement around it. The ideology of natural law, which finally took the name of philosophy of law, was, on the contrary, systematic, it started always from general formulae, it was aggressive and polemic, and still more, it was at war with orthodoxy, with intolerance, with privilege, with constituted bodies; in fine, it fought for the liberties which to-day constitute the formal conditions of modern society. It is with this ideology, which was a method of struggle, that arose for the first time, in a typical and decisive form, that idea that there is a law which is one and the same with reason. The laws against which the struggle was carried on appear as deviations, backward steps, errors.

From this faith in rational law arose the blind belief in the power of the legislator, which grew into fanaticism at the critical moments of the French Revolution.

Thence the belief that society as a whole is to be submitted to one single law, equal for all, systematic, logical, consistent. Thence the conviction that a law guaranteeing to all a legal equality, that is to say,

the privilege of contracting, guaranteed also liberty to all.

The triumph of true law assures the triumph of reason, and the society which is regulated by a law equal for all is a perfect society!

It is useless to say that there were illusions at the bottom of these tendencies. We all know to what this universal liberation of men was to lead. But what is most important here is the fact that these persuasions arose from a conception of law, which considered it as detached from the social causes which produced it. Likewise that reason, to which these ideologies appealed, reduced itself to relieving labor, association, traffic, commerce, political forms and conscience from all limits and all obstacles which prevented free competition. I have already shown in another chapter how the great Revolution of the eighteenth century may serve us for experience. And if there is still some one to-day who insists on speaking of a rational law which dominates history, of a law, in short, which would be a factor, instead of being a simple fact in historic revolution, that means that he is living out of our time and that he has not understood that our liberal and equalitarian codification has already, in fact, marked the end and the term of that whole school of natural law.

By different ways we have arrived in this century at reducing law, considered previously as a rational thing, into a material thing, and thus into a thing corresponding to definite social conditions.

In the first place, the interest in history gained in

extent and in depth, and it led students to recognize that to understand the origins of law, it was not sufficient to stop at the data of pure reason, nor at the study of Roman law alone. Barbaric laws, the usages and customs of nations and societies, so despised by the rationalists, have been theoretically restored to honor. That was the only way to arrive, through the study of the most ancient forms, at an understanding of how the most recent forms could have been successively produced.

Codified Roman law is a very modern form; that personality, which it assumes as a universal subject, is an elaboration of a very advanced epoch, in which the cosmopolitanism of social relations was dominated by a military-bureaucratic constitution. In this environment, in which a written code of reason had been built up, there was no longer any trace of spontaneity or popular life, there was no more democracy. This same law, before arriving at this crystallization, had arisen and had developed; and if we study it in its origins and in its developments, and especially if, in this study, we employ the comparative method, we recognize that, upon many points, it is analogous to the institutions of inferior societies and nations. It therefore becomes evident that the true science of law can be nothing less than the genetic history of the law itself.

But, while the European continent had created in the codification of civil law the type and the textbook of practical bourgeois judgment, was there not in England another self-originating form of law,

which arose and developed in a purely practical manner, from the very conditions of the society which produced it without system, and without the action of methodical rationalism having any part in it. The law, which actually exists and is applied, is therefore a much simpler and much more modest thing than was imagined by the enthusiasts who sing the praises of written judgment, of the empire of reason. For their defense, it must not be forgotten that they were the ideal precursors of the great Revolution. For ideology it was necessary to substitute the history of legal institutions. The philosophy of law ended with Hegel; and if objectors mention the books published since, I reply that the works published by professors are not always the index of the progress of thought. The philosophy of law thus became the philosophical study of the history of law. And it is not necessary to repeat here again how historic philosophy ended in economic materialism and in what sense critical communism is the reversal of Hegel.

This revolution, apparently a revolution in ideas alone, is merely an intellectual reflection of the revolutions which have been produced in practical life.

In our century, legislating has become an epidemic; and reason enthroned in legal ideology has been dethroned by parliaments. In these the antitheses of class interests have taken on the form of parties; and the parties struggle for or against definite

laws; and all law appears as a simple fact, or as a thing which it is useful or not useful to do.

The proletariat has arisen; and wherever the struggle of the laborers has taken definite form, the bourgeois codes have been convicted of falsehood. Written judgment has shown itself powerless to save the wage-workers from the oscillations of the market, to guarantee women and children against the oppressive hours of the factories, or to find an expedient to solve the problem of forced idleness. The partial limitation of the hours of labor has, itself alone, been the subject and the occasion of a gigantic struggle. The small and the large bourgeoisie, agrarians and manufacturers, advocates of the poor and defenders of accumulated wealth, monarchists and democrats, socialists and reactionaries, have bitterly contended over extracting profit from the action of the public authorities and over exploiting the contingencies of politics and parliamentary intrigue, to find the guaranty and the defense of certain definite interests in the interpretation of existing law, or in the creation of a new law. This new legislation has more than once been revised, and the strangest oscillations may be observed in it; extending from the humanitarianism which defends the poor and even animals, to the promulgation of martial law. Justice has been stripped of its mask and has become merely a profane thing.

The consciousness of experience has come to us and has given us a formula as precise as it is modest; every rule of law has been and is the customary,

authoritative, or judicial defense of a definite interest; the reduction of law to economics is then almost immediately accomplished.

If the materialistic conception finally came to furnish to these tendencies an explicit and systematic view, it is because its orientation has been determined by the visual angle of the proletariat. This last is the necessary product and the indispensable condition of a society in which all the persons are, from an abstract point of view, equal before the law, but where the material conditions of development and the liberties of each are unequal. The proletarians are the forces through which the accumulated means of production reproduce themselves and reconstitute themselves into new wealth; but they themselves live only by enrolling themselves under the authority of capital; and from one day to the next they find themselves out of work, impoverished and exiles. They are the army of social labor, but their chiefs are their masters. They are the negation of justice in the empire of law, that is to say, that they are the irrational element in the pretended domain of reason.

History then has not been a processus for arriving at the empire of reason in law; it has thus far been nothing else than a series of changes in the form of subjection and servitude. History then consists entirely in the struggle of interests, and law is but the authoritative expression of the interests which have triumphed.

These formulae indeed do not permit us to explain,

by the immediate examination of the various interests which are at its base, every particular law which has appeared in history. The facts of history are very complicated; but these general formula suffice to indicate the style and the method of research which has been substituted for legal ideology.