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 who 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 a 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 formulae suffice to indicate the

style and the method of research which has been substituted for legal

ideology.